Floor Statements

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I rise to speak about Specter amendment No. 3776, which has already been debated by the Senator from Pennsylvania, but I wish to bring up the other side because it is a very technical, legal issue which crosses professional fields of accounting, tax preparation, and legal counsel. However, to understand where Senator Specter would take this amendment, I wish to explain where we have been.

In 1995, Congress rightly decided that the Securities and Exchange Commission--the SEC--should have sole authority and ability to prosecute criminals violating securities laws. The decision was made because we knew private securities lawsuits would be driven by the wrong factors. At that time, we saw how just a handful of law firms were using class action lawsuits to clog up the courts and to tie up companies in litigation for years for mere fluctuations in company stock prices. Private lawsuits would have negative impacts on the economy, and private securities lawsuits would potentially open small businesses to unwarranted liabilities just as these small businesses are struggling to make a comeback and hope to hire more workers to stimulate our economy.

Fifteen years later, in 2010, Senator Specter has introduced an amendment which would run contrary to Congress's decision. Senator Specter's amendment would create what is called a ``private right to action,'' meaning trial lawyers are going to have a field day with this. What is worse, though, is this legal standard included in this amendment doesn't hold water. The standard for ``aiding and abetting'' in this amendment has been adjusted three times in 2 weeks, and it still isn't right. The standard in this amendment requires ``actual knowledge of the improper conduct underlying the violation'' and of ``the role of the person assisting in such conduct.'' Now, this standard is only slightly better than the first two proposals discussed earlier in the debate.

At first glance, this standard may seem as though it is all that is needed to show that someone has aided another in the act of committing a crime. It would seem that if a person has knowledge of improper conduct and knows they are helping that person, it would be a simple legal matter. However, that is absolutely not the case, and I will explain why in just a minute.

I am not a legal mind debating legal standards or case law. However, I am a businessman and an accountant by trade, and I can see what this poor legal definition will do not only to the business of accounting but to our domestic securities industry as well. Tinkering with the language of this amendment doesn't conceal the fact that the real-world impact of this provision has not changed.

I need to point out the legal standard this amendment would set has holes. Using the language laid out in the Specter amendment, here is another example: You notice this person running through the park. Having seen the person, you now have knowledge that person was running. As a passerby, you got out of the way so they could continue on their run. If we were to apply the Specter standard, even if you never met this person, you would have knowledge of that person's action--you knew he was running--and you got out of the way so he could use the sidewalk. That is aiding. If this person just robbed a bank, under this standard you could now arguably be considered a secondary accomplice.

In another hypothetical example, if a lawyer reviews a client's statement to their investors, approves what has been written, and the client falsified those statements, the lawyer is completely liable, despite not knowing that the client's disclosures were false.

Although changes from the first draft of this amendment to what is before us now are somewhat better, this amendment is still unacceptable. This amendment does not require that the person in question has knowledge the primary violator has broken the law. It is a very important part of this. You may have seen him, you may have moved aside for him, but you didn't know he was breaking the law. That is a very important requirement.

The Specter amendment just requires the person is aware of the conduct itself, not whether it is illegal. In other words, one doesn't have to know they are helping someone violate the law, which is what aiding and abetting is. One just has to know that the conduct happened.

I will say that again. This standard only requires that one knows of the ``improper conduct,'' not that he ``knows that the conduct is improper.'' This is a critical and unacceptable difference. To be clear, the standard does not even meet what is used by the SEC to prosecute criminal aiding and abetting charges. The SEC standard is significantly higher. Because the standard in this amendment is so flawed, we would be opening thousands of innocent small businesses to secondary charges of fraud.

Again, we are not talking about criminal charges. These charges would be strictly considered in a civil court. Keeping this standard would give profit-motivated trial lawyers a vague statutory standard to work from--not a good combination. They would be able to cast a wide net for defendants, and this opens professionals in their company to the costs of discovery and trial, in addition to potential liability for damages awarded in the rest of the criminal case.

Let's not forget we are talking about accountants, tax preparers, and attorneys who aid everyday companies. This means these professionals would be faced with a standard of evidence they cannot refute or argue, and they could likely be facing unfounded charges.

An accountant looks at the books, has knowledge of it, but that doesn't mean he knows it was improper. Most of the accounting audits are not of every single transaction. For a big corporation, an audit of every single transaction might take 3 or 4 years to cover 1 year's worth of transactions. It can't be done. But under that circumstance, the accountant might have knowledge, and because he signs off on the papers, he might be aiding them under this definition.

Their options under this standard would be pleading out for millions of dollars, even if innocent, or losing even more in the long process of discovery and trial in order to defend themselves and their work. All this for someone who may not even know the criminal or have known that the person's actions were criminal. Is this how our country's legal system is supposed to work? Are we going to incentivize frivolous lawsuits? The Specter amendment standard may even go so far as to hold these professionals liable for not finding fraud.

I also wish to note that this proposed amendment also goes beyond just the actions of some accountants and lawyers involved in the securities industry. Senator Chuck Schumer and Mayor Michael Bloomberg from New York City commissioned a report which found that meritless securities lawsuits are driving up the cost of doing business in securities and driving away foreign investors, making the United States less competitive worldwide. Having a standard like the Specter amendment proposal means foreign trading partners may be reluctant to bring business here right when our country needs the investment the most.

Foreign investors will not want to bring business here if doing so exposes them to the private liability standard that Specter's amendment would create.

As an accountant and former small business owner, and for each of the reasons I have outlined, I urge my colleagues to oppose this ill- conceived amendment.

I would be happy to answer questions of any of my colleagues if they have any. Again, I ask them to just ask their accountant what they think about this particular standard which could lead to lawsuits, discovery, a lot of costs--and needlessly. We are trying to pass a law that would take care of 1 percent of the problem and penalize the other 99 percent. So I hope we will reject the Specter amendment. I yield the floor.

Madam President, I suggest the absence of a quorum.

Mr. President, once again, we are debating a comprehensive bill. This one, of course, is only 1,407 pages, as opposed to 2,700 pages that did health care. But this probably does not affect everybody--just almost everybody. This could have been three separate bills, and we could have put a lot more effort into getting it right if it were three bills instead of one. This is one that takes care of the problem with big banks. There is another one that provides consumer protection that people are going to be stunned at, to find out every single transaction, practically, they can make can be controlled by a new board that has no oversight, gets to write their own rules, and has virtually an unlimited budget.

But the piece we are talking about right now has been labeled ``derivatives.'' I keep thinking maybe it has been labeled ``derivatives'' so the American public would not know what we are talking about. It is important they know what we are talking about.

I rise in strong support of Senator Chambliss's effort to improve this ``derivatives'' section in the bill. But I am disappointed Senator Chambliss is even required to offer his amendment. Senators Lincoln and Chambliss were well on their way to moving toward a bipartisan package of reforms for the derivatives market.

This is the market used to hedge against risk, and if we make a mistake in dealing with it, businesses will suffer, students will suffer, farmers and ranchers will suffer. Many businesses want to lock in a price, so they hedge their risk. They make a long-term commitment to purchase something at a particular price, so they have certainty and avoid the risk that the price will change.

For example, many airlines use this market to lock in long-term fuel prices they can rely on. That is a derivative. That contract can be bought and sold as the market changes--again, to take an acceptable risk. Sometimes I think we call it a derivative, as I mentioned before, so the American people will be confused and will not pay attention.

Senators Lincoln and Chambliss were on the verge of putting together a key piece of financial reform in a bipartisan fashion. Unfortunately, buoyed by the passage of the extraordinarily partisan health care reform bill, the White House intervened in negotiations. They urged an end to bipartisan negotiations. They pushed the bill further to the left, and we are now faced with a product that will make it harder for American companies to obtain capital or to assure future purchase prices for essential products. This will drive some American jobs overseas, and perhaps entire businesses as well.

It is disappointing that this is becoming commonplace in the Senate. During the health care reform debate, I worked with five other members of the Finance Committee on a comprehensive health care package. We were making progress on a bipartisan bill when the majority, with the guidance of the White House, decided to go it alone, decided that was better politically.

Now we are having a debate about the future of the financial industry. We are working to protect our economy from future collapse and, unfortunately, we are having this discussion in a mostly partisan manner because the White House is interested in scoring some more political points. It is an election year, and these are election-year politics at their worst, and I am disappointed it is becoming the norm.

The White House believes they can win political points on this issue because the word ``derivatives'' is something of a boogieman. People hear that word and they assume it is a group of Wall Street bankers plotting how to increase their end-of-the-year bonuses, as they seek to ruin the rest of the economy. My constituents are told by fear mongers on the left that derivatives are risky transactions, and they are misled into believing there is nothing about derivatives that is useful to ordinary businesses.

The facts do not support those claims. Derivatives are, by their very nature, measures to help limit risk. It is hedging the bet. The vast majority of Fortune 500 companies and many smaller companies are involved in the derivatives market. Employee pension funds are involved in the derivatives market. The agriculture derivatives market is one of the oldest and most established financial markets in the United States because agriculture can be an inherently risky business unless you lock in a favorable price. Producers are at the mercy of the weather, transportation networks, varying input costs, and the global supply of agricultural commodities. These unique market conditions mean that without risk management, markets fluctuate wildly.

I think it could be helpful to those listening to the debate to try to make clear how these transactions actually work. Oftentimes, in business, the greatest potential for profit involves the greatest risk. It only makes sense I would have greater potential to make money if I invest in a startup company than if I invest in a Treasury bond or an old established company. It is also more likely I will lose money with my

investment if I invest in that startup company. I may want to limit the chance I will lose all my money. I may want to figure out a way to lessen my risk. Another company may believe my investment was good, so I will essentially sell them some of my investment in the startup company--along with my chance for maximum profit--in order to have money to invest in a more stable Treasury bond and less profit--hedging my bet. The entity that facilitates that sale is a swaps or derivatives dealer, and they play an important role by helping find willing buyers and sellers to help companies limit exposure--to hedge the risk.

The goal of this legislation should be regulating the market in a way that ensures companies, individuals, and other entities can have access to as much money for investment to create jobs as possible, at the same time that we create a situation where we will never again be forced to bail out the biggest banks, and where we never allow another AIG to occur.

I am not convinced the bill as written addresses the concerns, although I feel confident the bill will lead to less access to money for businesses at a time when our economy is struggling.

In my home State, I am hearing from the energy industry and from agricultural groups that the bill has the potential to treat companies that are trying to limit risk as major banks. Although the bill does provide an end-user exemption, it is unclear if companies can avoid being misclassified as a swap dealer or major swap participant, and if they are misclassified, they lose their end-user exemption.

The Chambliss amendment clarifies the end-user exemption to ensure that bona fide hedging transactions, including those used by a wheat grower in Wyoming or a power company in the Midwest, remain regulated in a reasonable fashion.

One of the difficulties with the way we are doing things here with most of the work being done on the floor is that you cannot pick the glimmer of an idea out of one and the glimmer of an idea out of another and put it together and have a good amendment. Plus, there is all this pressure that the party line should be protected. That is not what this amendment involves. This is trying to make a bona fide change to it. It has to be done in a more global way than we would like, but we are limited on the number of amendments we get to do. There is already talk about how we need to close this debate. I know of dozens of amendments out there that people believe are good changes to this bill to make it a working bill that we probably will not get to debate.

In a meeting yesterday with Federal Reserve Chairman Ben Bernanke, the Chairman emphasized that what has become known as section 106 provisions remain problematic. In the current version of the legislation, the provisions have been moved to section 716 and require that swap business be conducted and affiliated separate from the FDIC- insured banks.

Chairman Bernanke didn't think this section was nearly ready to go, and I suspect the FDIC folks don't either. Although the idea appears to make sense on its outset, the provision will further reduce access to investment money to create jobs as banks are required to hold additional money in their related businesses to limit credit exposure. Instead of using the capital at the bank to limit credit exposure, they are forced to have a second pot of money that they will be unable to lend. The provision will result in less investment money entering the market. It will lead to further consolidation of the market because fewer institutions will be able to meet the credit risk requirements, and it will increase costs to end users.

Putting on my hat as the ranking member of the Health, Education, Labor and Pensions Committee, the Chambliss amendment also helps resolve a concern that pension and retirement plans have with the Lincoln-Dodd substitute. Many people do not realize that pension plans dislike big fluctuations in the market. Private pension plans invest for the long term and would prefer to have steady, long-term growth rather than investing in a volatile market which could cause a company's pension obligation payments to skyrocket when the market falls. Pension plans enter into swap agreements and derivative contracts to hedge price fluctuations and to keep risk at a minimum. For example, pension plans use these contracts to make sure they don't have too high of an interest rate that may be unsustainable or too low of an interest rate that will give too low a rate of return that would not provide enough money to pay pensions as they come due. Even the Pension Benefit Guaranty Corporation, PBGC, uses swaps and derivative contracts to dampen the value swings of the pension trust funds.

Recently, 401(k) plans and individual retirement accounts, IRAs, have been using ``stable value funds'' as an alternative to money market funds to offer a very stable and steady increase of earnings. These stable value funds are stable because of the use of swap contracts, again, because they make sure the underlying investments don't go too high and don't go too low.

Originally, Senator Dodd's language in the Banking Committee-reported bill may have caused pension and retirement plans to register as ``major swap providers.'' This, of course, would not work because the regulation and registration requirements may have run afoul of pension requirements for solvency. Senator Lincoln tried to remedy this, but her solution was to place the swap dealers on the spot by requiring special paperwork for just touching a swap contract for a pension plan.

I believe the Chambliss amendment strikes the right balance. Pension plans are not trying to create a market in swaps, nor are they trying to use swaps to game the markets. Pension plans that use swaps assure pension funds will be there when needed for the people retiring, and the approach taken by the Chambliss amendment allows that to happen.

The Chambliss amendment is a far superior effort to the bill we have on the Senate floor. At one time I was confident that we would be seeing a bipartisan, workable Lincoln-Chambliss provision. It is unfortunate the White House got involved, pushed this bill to the left, and is now pushing us to pass some sort of financial reform legislation--any sort at this stage--at the expense of passing a strong, workable bill. Congress needs to stop with this ``shoot first, ask questions later'' approach, or as we call it in Wyoming, the ``ready, fire, and then aim'' approach that might never hit the target.

I hope my colleagues in the Senate can support the Chambliss amendment or at least get together and cover some of the things we have talked about that are a major problem with the bill. This is one-third of what we are talking about, and it is going to have the potential to ruin a lot of things for individuals, working Americans. We don't want that to happen.

I ask my colleagues to support the Chambliss amendment. I yield the floor.

Mr. President, I want to point out that you have just seen an example of why there isn't bipartisanship in this Chamber. You cannot denigrate the other party and denigrate every single thing they put up as an amendment and suggest there is going to be bipartisanship. The amendment that is before you is an attempt to correct some of the things that are in the bill.

The filibuster was mentioned. Well, the filibuster bought enough time that Senator Dodd and Senator Shelby were able to work out the agreement for the amendment that has passed--a major amendment, a major change, a wanted change, an expected change, and a change that makes the bill far better. If every amendment the Republicans bring up is going to get the kind of treatment this amendment is getting and not looking for that piece in there that might make a difference, we are not going to have much success on this bill.

I heard the other side mention Goldman Sachs. Goldman Sachs said they like this bill; one of the offenders, and they like it. That encourages me that it is a good bill.

I appreciate the Senator from Oregon giving the examples of some things that are terrible in our economy--some of the credit card examples he gave. It absolutely shouldn't happen in America. I don't think this bill fixes it, and I will explain that in a few minutes.

If our amendment is too open-ended, the Democratic amendment raises the possibility of controlling every single thing for middle America-- every single thing--and I will explain how that works. I don't think it was what was intended, and that is why we go through an amendment process, to clear up problems such as that.

But I am going to talk today about consumer financial protection. I want to be clear when I speak about this protection that I am talking about protecting consumers from bad actors. I am talking about educating consumers. When I talk about consumer protection, I am not separating consumer protection from the health of the economy. I rise today to talk about what is flawed in title X--called the Consumer Protection Title--of the financial reform bill, and to raise awareness about an alternative to the current language in title X.

I believe an alternative to this section is desperately needed because the Federal Government should not be involved in our daily lives and everyday decisions. Under the proposed consumer protection title, we would be opening the floodgates of government involvement. The Federal Government could be telling us how we can spend our money, how we save for the future by making decisions for us, and could truly limit financial markets to the point of economic decline. The Federal Government should not operate with the belief that it is protecting us from ourselves. However, that is where title X language begins to work.

From supporters of this bill, we have heard that in order for consumer protection to be truly effective it needs its own independent agency--or bureau now--and that this Consumer Financial Protection Bureau should be free from outside influence. Independence from outside influence is a fine goal, but our government was built on using a system of checks and balances and this bureau would be totally unchecked. It would have unprecedented power and authority to write its own rules--no review. It would have an uncontested budget--no appropriation. And decisions made by the bureau would be made without regard to the impact those rules would have on the health of our economy. Where is the transparency in this power? Where is the accountability of this proposal? I haven't even touched on what the title could do to consumers' personal information or financial decisions.

To achieve independence, this bureau would consolidate all financial protections and efforts from the various Federal Government agencies, all in the name of better protecting consumers. Don't get me wrong, there are issues needing to be addressed for consumer protection. But right now, each Federal agency acts as a check on its neighbor when it comes to consumer protection. My fear is that once this bureau has consolidated power, it will not stop at protecting consumers from fraud or deceptive practices. This agency would only be getting started.

I am deeply troubled about the creation of this bureau because it would place the bureau within the jurisdiction of the Federal Reserve. Too many of my constituents already believe the Federal Reserve gaining additional power is an alarming thought. However, what is most alarming to me is the fact the Federal Reserve would have little authority over this proposed bureau. Mostly, they provide the money.

Right now, as this bill is written, the Federal Reserve would be required--required--to give the bureau a designated 12 percent of their operating budget. The catch here is that Congress would have no budgetary authority and would not approve this money. And it is adjusted for inflation. If you are going to get a percentage of a budget, how do you adjust a percent for inflation? But aside from that, it is adjusted for inflation. It works up to be 12 percent of the operating budget of the Federal Reserve.

In addition, they can even invest any of the money they do not spend. You will find that on page 1,073. I know it is a huge book, so I didn't want you to have to look through the whole thing. On page 1,074, it even says these aren't government funds. You know why. That way it doesn't cost under the scoring. Even though it will drive up the deficit and the debt, it doesn't count that way. It looks like a free program, but that is not true. So they get to keep the money and invest what they do not spend--I don't know of another entity that gets that right--and it is not considered to be government funds. That provides a little latitude.

The bureau not only has an uncontested budget, but the bureau would be the single most powerful agency in the Federal Government. Not only could the bureau write their own rules for our States' businesses and local banks to follow, it would oversee consumer decisions, and the bureau would be the enforcer of their own rules. No other agency has that kind of unchecked power. Where is the accountability in this? Unchecked power

doesn't lend itself to accountability either.

What is important is for the public, for the average American, to know this bill could protect people. But it could also go potentially 10 steps further and take some of their decisionmaking power and transfer it to the Federal Government. We don't do that in America.

For example, as the bill stands, it is so overreaching and ambiguous in areas that it could impact everyday purchases for most Americans. How would they do that? Under the rules they write that nobody takes a look at. There is nothing to hold this bureau in check.

Here is how the bureau would regulate consumer financial products or services, as well as service providers, sweeping thousands of already regulated small businesses into the bureau's purview. Then you add in section 1027 of the bill, and it could penalize anyone who buys or sells something on an installment plan or it could affect any local small business that offers some kind of monthly payment on credit. That is why we are being flooded right now with people who want to be exempted from this bill. They are worried about not being able to provide their service anymore.

Have you ever bought a car and paid for it over a few years with a financing plan from the dealer? Many of us probably have. This bill's language is so ambiguous and unclear that it looks like people who want to pay for a service on an installment plan or those who offer those plans will be penalized and regulated by the new consumer protection agency--I should say consumer protection superagency. Nobody has ever had this kind of power.

Small business owners, regular people off the streets and from our States have been streaming into the congressional offices, looking for these exemptions that I just talked about because of this title in this bill. As drafted, this title is so ambiguous, so far-reaching, that consumers and good actors are being swept up with the bad.

Anyone who ever paid for dental care in installments could, in the near future, be facing the prospect of paying for dental work upfront, as dentists realize they cannot afford to keep up with the new regulations, additional regulators or the cost of compliance with the bureau's demands.

For auto dealers, where financing is hardest to come by in rural towns in small America, this would, in fact, be a direct hit on their business. Right now the financial burdens of the bureau would also be borne by auto dealers that direct clients to available financing but don't originate or authorize car loans themselves. That is pretty far- reaching.

Additionally, though, if a consumer purchases something on an installment plan, whether the loan is for a bike, a minivan, braces, an engagement ring, livestock or a home, if there are more than four installments, the government, through the bureau, would have a say in approving that loan.

The bureau, also in the name of protecting us from ourselves, would require banks to keep and maintain records of all bank account activity and financial activity of their clients for at least 3 years, while also requiring this information be sent regularly to the bureau for safekeeping. I have serious concerns about our Government collecting information on the daily activities of our citizens and equal concerns about the Government approving or disapproving the financial choices of its citizens.

I have just outlined why the Consumer Financial Protection Bureau is bad for consumers, why it is bad for small businesses and our communities, and why it is bad for individual consumer choices and freedoms. I point out all these things to you because there is an alternative to this bureau that is being proposed by my colleagues from Kentucky, Alabama, and Tennessee. This alternative proposal addresses each of the concerns I have just raised about accountability, oversight, consumer protections, consumer education, and consumer rights. This new proposal keeps our current regulatory infrastructure intact and improves on it. This alternative would not scramble all our current regulators in the name of a change, but, instead, has carefully and thoughtfully made our current system better, creating more effective checks and balances. The consumer protection alternative title would create a consumer protection division to be housed within the FDIC.

The FDIC already oversees consumer deposit protection, so it is a logical step to place consumer protection interests here. While the new consumer protection division is shielded from outside influence and has autonomy, the division is, at the same time, prevented from wielding absolute power like the bureau. When rule changes or actions are proposed, the FDIC Board would be better able to use their regulatory experience to protect consumers, while at the same time ensuring safety and soundness are not disregarded.

This division would still have a Presidentially appointed and Senate confirmed Director who serves a 4-year term in office. Instead of needlessly looping all kinds of small businesses into the fold for additional regulation, the division's mission would be of a proactive consumer education, ensuring consumers are able to receive timely and understandable information on consumer financial products. The division would partner with other agencies, such as the Federal Trade Commission, to develop guidelines for market oversight. Through these types of partnerships, the division would pursue fraudsters and the bad actors in our market. They would be developing best practices for overseeing nondepository mortgage originators and addressing the risk- based supervision of our nondepository institutions.

Very importantly, this new alternative leaves current prudent regulators in place for banks, savings associations, and credit unions. While the division would watch over the large institutions that have already violated consumer protection statutes, this alternative would provide an infrastructure with regulatory experience that would also meet the demands of growing consumer financial protection concerns. This proposal creates a balance between past regulating experience and the call by consumers to have more protection, without losing the rights to make personal financial decisions.

I am a cosponsor of the title X alternative because I believe in its ability to address consumer protection without regulating consumers out of their rights as citizens. I am a cosponsor because I believe this alternative regulates the bad actors without tossing small business into the mix and regulating them out of business.

It doesn't form a new agency that has to go through a whole rulemaking process over a period of time before we even know what they are doing.

Putting this bureau under the Federal Reserve, with all the concerns and pressures focused on the Fed right now, is a very bad idea. Moving consumer protection to an unregulated, nontransparent, not accountable new agency that can write its own rules without review and operate using unchecked money is beyond my comprehension, and I think it is beyond the comprehension of the American people when they find out about it. I am not sure they are aware of it or I think there would be a huge hue and cry across this country. People are more concerned over their freedoms right now than they ever have been, and this will take away freedoms. You have to have the freedom to make your choices and even to make bad choices. But in America that is the way it works and Big Brother is not allowed to hang over your shoulder and decide for you whether you are making a good decision.

I yield the floor.

Mr. President, I am pleased to rise in support of the nomination of Nancy Freudenthal to serve as a judge for the U.S. District Court for the District of Wyoming. I want to thank Chairman Leahy and Senator Sessions and the Judiciary Committee staff for their assistance moving this nomination through the process.

Nancy is a Wyoming native, born in Cody, and received both her B.A. and her J.D. from the University of Wyoming.

After being admitted to the Wyoming State Bar in 1980, Nancy took a position with Governor Ed Herschler as his attorney for intergovernmental affairs for 8 years. She then served in the same position for Governor Mike Sullivan for 2 years. In this capacity, Nancy served as the Governor's representative on numerous boards, worked extensively with the State legislature, taught at the University of Wyoming College of Law, and served as acting administrator of the Department of Environmental Quality in the Land Quality Division.

In 1989, Nancy was appointed by Governor Sullivan to the Wyoming Tax Commission and State Board of Equalization, where she served as Chairman for a 6-year term. While the State board of equalization is tasked with the annual process of equalizing valuation of property in Wyoming counties, the board has a main function of listening to disputes between taxpayers and the Department of Revenue and reviewing appeals. Nancy's experience as chairman of this board will greatly enhance her abilities as a judge.

Since joining Davis & Cannon, LLP in 1995, Nancy has handled a wide variety of matters, including complex mineral tax litigation, environmental and natural resource disputes, public utility law, oil and gas litigation, employment litigation, and commercial transactions. She has experience at both the trial and appellate levels. Nancy is well respected among her peers and judges in Wyoming.

I also want to mention how important this judgeship is for Wyoming. While Senators disagree at times about specific nominees, we can all agree that without judges in place our legal system slows down and does a disserve to the people we represent.

Nancy Freudenthal's experiences as a private attorney and in State government will serve her well as a district court judge. I am pleased that her nomination has received the strong support of my Senate colleagues.

Mr. President, I am rising in support of the nominee. Any delays that there have been have not been for this particular nominee, nor by the Wyoming delegation at all.

This is a position that has been open now for over 2 years. The first nominee for this position got a hearing but could not get a vote in committee. The nomination ran out and we now have a new nominee, who is Mrs. Freudenthal, Nancy Freudenthal, who is also the first lady of Wyoming.

But she, in her own right, has been an attorney, has served with three different Governors in the State of Wyoming, and does a phenomenal job. She has her law degree from the University of Wyoming and would make an outstanding person to fill in this roll. Both Senator Barrasso and I are strongly in support of her and have been pushing for her nomination since we first started.

Mr. President, the Republican side may have been doing things to be sure we had votes on judges, which is the same thing the Democrats did when we were in the majority. We had to have votes on all these. I am glad we finally got to the position of having a vote.

I ask everyone to vote aye.

I ask for the yeas and nays.

Mr. President, I rise today to discuss the need to closely examine our United States Constitution and Congress's limits held within this important document. Our Founding Fathers granted Congress limited powers within the Constitution, and we should not stray outside those powers. They knew what would happen if a government grew too large and too controlling. So far during the 111th Congress, the government has taken over banks, insurance companies, the student loan industry and the automobile industry. The American people know this is wrong and they have spoken out. During the Wyoming State legislative session, which concluded on March 5, two resolutions were passed because the Federal Government continues to overstep its bounds. These two resolutions, House Enrolled Joint Resolution 2 and House Enrolled Joint Resolution 3, demand that Congress desist from making mandates beyond the enumerated powers of the United States Constitution.

In the U.S. Senate, I am working to pass S. 1319, The Enumerated Powers Act, to achieve what the Wyoming State Legislature passed and signed into law on the State level earlier this year. The Enumerated Powers Act would require that every bill introduced in Congress include a constitutionality clause pointing to the exact section in the Constitution that grants

Congress the right to make that specific law. I am proud to be an original cosponsor of this piece of legislation which was introduced by Senator Coburn.

We must learn from our constituents and fellow lawmakers. Our Constitution has held our country together for hundreds of years and this is no time to abandon it.

I ask unanimous consent to have these two resolutions printed in the Record.

Mr. President, I rise today to introduce legislation with Senator Landrieu known as the Voluntary Protection Program Act. This bill will codify the Voluntary Protection Program, or VPP, expand it to include more small businesses, and incorporate recent GAO recommendations for program improvements.

No program has been more successful in creating such a culture of safety in the workplace than VPP. Since it was created in 1982, Republican and Democrat administrations alike have fostered its growth to now 2,284 worksites, a quarter of which are unionized, and it covers almost a million employees. The bipartisan support for VPP continues into this Congress. Last week, the Senate Budget Committee unanimously approved an amendment to preserve VPP budget authority and Chairman Conrad noted that the program actually saves taxpayer dollars.

Worksites that pass the rigorous evaluation process and become VPP sites have an average Days Away Restricted or Transferred, DART, case rate of 52 percent below the average for its industry. In recent years, smaller worksites have made significant strides in VPP, increasing from 28 percent of VPP sites in 2003 to 39 percent in 2008.

The innovative program doesn't just keep employees safer; as I have noted, it also saves both the VPP companies and the taxpayers money. In 2007, Federal Agency VPP participants saved the government more than $59 million by avoiding injuries and private sector VPP participants saved more than $300 million. Additionally, when workplaces make the significant commitment to safety required by VPP, it allows OSHA to focus its resources where they are most needed. VPP Participant employers contribute a great deal to the VPP program expenditures. VPP participants have assigned approximately 1,200 of their own employees to act as OSHA Special Government Employees, SGEs, who conduct onsite evaluations for OSHA.

Despite the strong bipartisan support for VPP and its very positive results, the need for this legislation has become painfully clear. The administration's fiscal year 2011 Budget Request proposed eliminating the small amount it takes to administer VPP--$3.125 million and sought to transfer the 35 FTEs it takes to run the program to other functions. The budget proposal stated that OSHA was seeking ``alternative non- federal forms of funding'' and working closely with stakeholders, but, to date, no plan to secure such funding has been offered by the administration or in either the House or Senate authorizing committee. To the extent such ``alternative funding'' is bureaucratic code for a fee-based system such a proposal is simply not workable and completely counterproductive. Participating employers already voluntarily absorb significant costs to participate in the current program. Asking businesses--particularly small businesses, and particularly in the current economic environment--to take on more costs will only result in them dropping out of the program. Further still, a fee-based system simply destroys the credibility and integrity of VPP participation for employees.

I would like to thank Senator Landrieu for working with me on this important legislation.

Mr. President, I rise today to introduce legislation with Senator Landrieu known as the Voluntary Protection Program Act. This bill will codify the Voluntary Protection Program, or VPP, expand it to include more small businesses, and incorporate recent GAO recommendations for program improvements.

No program has been more successful in creating such a culture of safety in the workplace than VPP. Since it was created in 1982, Republican and Democrat administrations alike have fostered its growth to now 2,284 worksites, a quarter of which are unionized, and it covers almost a million employees. The bipartisan support for VPP continues into this Congress. Last week, the Senate Budget Committee unanimously approved an amendment to preserve VPP budget authority and Chairman Conrad noted that the program actually saves taxpayer dollars.

Worksites that pass the rigorous evaluation process and become VPP sites have an average Days Away Restricted or Transferred, DART, case rate of 52 percent below the average for its industry. In recent years, smaller worksites have made significant strides in VPP, increasing from 28 percent of VPP sites in 2003 to 39 percent in 2008.

The innovative program doesn't just keep employees safer; as I have noted, it also saves both the VPP companies and the taxpayers money. In 2007, Federal Agency VPP participants saved the government more than $59 million by avoiding injuries and private sector VPP participants saved more than $300 million. Additionally, when workplaces make the significant commitment to safety required by VPP, it allows OSHA to focus its resources where they are most needed. VPP Participant employers contribute a great deal to the VPP program expenditures. VPP participants have assigned approximately 1,200 of their own employees to act as OSHA Special Government Employees, SGEs, who conduct onsite evaluations for OSHA.

Despite the strong bipartisan support for VPP and its very positive results, the need for this legislation has become painfully clear. The administration's fiscal year 2011 Budget Request proposed eliminating the small amount it takes to administer VPP--$3.125 million and sought to transfer the 35 FTEs it takes to run the program to other functions. The budget proposal stated that OSHA was seeking ``alternative non- federal forms of funding'' and working closely with stakeholders, but, to date, no plan to secure such funding has been offered by the administration or in either the House or Senate authorizing committee. To the extent such ``alternative funding'' is bureaucratic code for a fee-based system such a proposal is simply not workable and completely counterproductive. Participating employers already voluntarily absorb significant costs to participate in the current program. Asking businesses--particularly small businesses, and particularly in the current economic environment--to take on more costs will only result in them dropping out of the program. Further still, a fee-based system simply destroys the credibility and integrity of VPP participation for employees.

I would like to thank Senator Landrieu for working with me on this important legislation.

Madam President, Diana and I, along with so many of our neighbors, family and friends from every corner of Wyoming were very sorry to learn of the passing of Thomas Stroock. Tom was one of Wyoming's most remarkable citizens, a rugged individualist who wore many hats in life and traveled many roads--all of which always brought him back to the State he loved and called home--Wyoming.

God puts us where He wants and needs us to be and how what we do--and what we fail to do--can have a great impact on the world around us and make the lives of all those we meet very different than they might otherwise have been. That is the kind of lesson you could draw from the life of Thomas Stroock. Born in New York City, Tom quickly showed the kind of character and values that would guide him throughout his many chosen careers. He was an excellent student, and

when the opportunity presented itself, he enrolled at Yale University, and then enlisted in the U.S. Marine Corps so he could serve his country at a time when tensions were running high around the world.

After he completed his service in the Corps and graduated from Yale, he made what he would always say was the most important and the smartest move of his life when he married Marta. Marta was to be a strong and powerful influence as she helped to give his life balance and direction. Thus began a marriage that was to last for 60 years.

Now that Tom had found the love of his life, it was time for Tom and Marta to start making plans for their lives together. A business opportunity had brought them to Casper, WY, but they had no plans to stay. Fortunately, the beauty of the surrounding area, and the spirit and hospitality of the people they met soon changed their minds. So much so that when Tom's employer wanted to transfer him from Casper he decided instead to try his hand at running his own firm. That is how the Stroock Leasing Corporation came to be born.

Tom, to no one's surprise, soon proved to have an excellent mind for business. In just a few years, Tom had founded other business entities and he was making even greater strides on the path to success.

For many people that would have been enough. They would have been content to just sit back and enjoy all that life had already brought their way. That is how it would have been for most people, but not for Tom and Marta.

Tom's unshakeable determination to do everything he possibly could to improve the lives of those around him--to make his part of the world a better place wherever he happened to be--which had always served as his internal compass--now became stronger than ever. It became part of his personal mission statement that he worked very hard to fulfill time and time again, at home and abroad.

That is why, now that his businesses were doing so well, Tom decided to take that philosophy to the next level. He ran for and won a seat on the Natrona County School Board so he could help to make the local schools more effective and efficient. Tom knew from his own life the benefits that a good education can provide and he wanted all of our state's young people to have that same chance.

Then, after serving on the school board, he was elected to represent Natrona County in the Wyoming State Senate--a post to which he was reelected several times. In both positions Tom showed that he was a master strategist. In the State legislature, no one ever paid closer attention to Wyoming's resources and our stream of revenue than Tom did. He watched every penny--how each one was earned and how each one was spent. Wyoming was then placed on better and more sound financial footing because of what he did.

Throughout his life Tom was profoundly influenced by his years at Yale. It was there that he met George H.W. Bush and the two soon became good friends. He must have been impressed with Tom because, when he was elected President and the opportunity presented itself, he named Tom Stroock to serve as our Ambassador to Guatemala.

Tom preferred Guatemala to the other available posts because it was in the midst of a great civil war and of all the nations in the area, Tom felt that he could do the most good there.

At the conclusion of his service in Guatemala, Tom and Marta headed right back home to Wyoming. To no one's surprise, Tom hit the ground running and was once again involved in a wide variety of issues that ranged from the status of our energy industry to the future of the University of Wyoming. He even wrote some guest columns for the Star- Tribune. Never one to mince words or water down his ideas and views, his columns often raised eyebrows--and the attention of people with other points of view!

During these years, he also found the time to start and fund the Stroock Forum on Wyoming Lands and People. The Forum, which was held every year, brought an interesting speaker to Wyoming to share their views on many different issues.

As we look back in the years to come, we will always remember Tom as one of our state's strongest leaders. He led the best way--by example-- and by so doing encouraged others to follow his lead and do their best at whatever they felt called to do in life.

Tom's service can best be summed up by the words Mike Leon of Sheridan used when he was in the Legislature to emphasize the importance of maintaining the individuality of our state. Tom quoted them himself in one of his speeches--``We don't want to make Wyoming like every place else, when every place else wants to be just like Wyoming.''

That was Tom's No. 1 goal in life--to make things better in Wyoming or wherever he happened to find himself, but, as he did, to ensure that each place maintained its own style and character so that it would never become a place that was just like every other.

In their travels, and throughout their lives, Tom and Marta have made everywhere they have been a better place for their having passed by. Together they were a remarkable team and they produced tremendous results and touched more lives than we will ever know.

Diana and I join with all those who knew and loved Tom in expressing our great sympathy for the loss we all share. We will keep all of Tom's family, his many friends and all those who were a part of his extended family in our prayers. He has gifted our state and our people with a legacy of which we can all be very proud. He will be greatly missed and he will never be forgotten.

Mr. President, this is not a killer amendment. This just kills a bad part of the bill.

The reconciliation bill makes a bad employment situation even worse. It imposes $52 billion in new taxes on employers who cannot afford to provide health insurance to their workers. The

new employer tax will result in lower wages and lost jobs.

According to CBO:

Requiring employers to offer health insurance--or pay a fee

if they do not--is likely to reduce employment.

Low-income workers are particularly hard hit by the employer mandate in the reconciliation bill. CBO says an employer mandate ``could reduce the hiring of low-wage workers'' and would ``increase incentives for firms to replace full-time workers with more part-time or temporary workers.''

The Nation's unemployment rate is 9.7 percent, and in many States the unemployment rate is well into the teens. We should be doing everything possible to create new jobs, but the employer mandate in the reconciliation bill does the opposite.

The job-killing taxes in the bill will slash wages and cut jobs.

I urge my colleagues to protect Americans' jobs by supporting my motion.

Mr. President, I rise in opposition to the reconciliation legislation the Senate will be considering later this week. Similar to many of my colleagues, I first read this legislation when it was hot filed in the House last week. One of my first thoughts was, what a difference 15 months makes. This week the Senate will debate legislation that will increase health care costs for working Americans and wipe out a successful bipartisan 45-year-old student loan program without a single committee hearing or even a markup.

This bill is an attempt to fix what is perceived to be the problem with health reform legislation that the Senate passed on Christmas Eve of last year. These fixes are being considered because the American people overwhelmingly opposed that legislation. Unfortunately, this bill, the reconciliation bill, does nothing to fix the problem that prompted this opposition. Nothing in the bill we are going to be considering will prevent $\1/2\ trillion from being cut from the Medicare Program to create a brandnew entitlement program for the uninsured. If this bill is passed, millions of Medicare beneficiaries will lose the extra benefits they currently receive. In fact, this bill will actually make matters worse, cutting even more money than the provisions in the Senate bill. One out of every four Medicare beneficiaries is already enrolled in a Medicare Advantage plan, and every one of them will see their benefits reduced.

If this bill is passed, the care of Medicare beneficiaries across the country will still be put at risk because of the unsustainable payment cuts to hospitals and nursing homes. The President's own Chief Medicare Actuary said these costs could jeopardize Medicare's beneficiaries' access to care. He said, as a result of these cuts, roughly 20 percent of all hospitals and nursing homes in the country would become unprofitable which, of course, could lead them to end their participation in the Medicare Program. It is either end it or go broke.

If you can't go to a hospital or get a doctor to treat you, you do not have health care. But this bill does nothing to fix the Medicare payment cuts in the Senate health reform bill passed on Christmas Eve. This bill will still cause health insurance premiums to increase. The Congressional Budget Office said the Senate bill would increase premiums by 10 percent to 13 percent for individuals. They said that 10 percent to 13 percent increase is above what would happen if we do absolutely nothing. Yes, escalating health care costs are a problem, but this bill passed by the House last night, with these supposed fixes that are in here, will increase premiums 10 percent to 13 percent for individuals over what would have been done if nothing would have happened. It does not sound like a solution to me. There are solutions out there.

The bill also contains provisions that will increase premiums for 85 percent of Americans who already have health insurance. This bill does nothing to stop health care costs from increasing our national debt. The CBO estimates of the bill are required to ignore the issue of Medicare payments to physicians. Let's see, how many times have we ignored the Medicare payments to physicians? That is right, never. How do we fix it? We just need to come up with 300 billion more dollars. We had a chance to do that through the bill, keeping Medicare money for Medicare. But no, we took the Medicare money, and we decided to put that into new programs, new programs for the uninsured.

There are solutions out there for making sure the uninsured are covered, too, and it did not have to come out of Medicare.

The CBO estimates of the bill are required to ignore the issue of Medicare payments to physicians. The bill also does nothing to fix the scheduled Medicare payments to the other health providers. Does the majority believe the Medicare payments to doctors will be cut 21 percent later this year? Not if history keeps itself up. But let me tell you, that $132 billion that it is supposed to reduce the deficit in the first 10 years in the Senate-passed bill is ignoring the need for $300 billion to fix the doctors. If we fix the doctors, we are $170 billion in the hole. The President did not visit China and Secretary Geithner, on a separate trip, didn't visit China to go see the Great Wall. They were told to come over there by China so they could explain how we were ever going to pay for our bonds. Last month, they dropped about $38 billion in our bonds, and I noticed today we have this clamor that we want them to adjust their yuan, the value of their money compared to our money, and they said: You have to be kidding me, we own you. They didn't say it in quite those words, but that is what they meant.

In addition to assuming massive reductions in Medicare payments to doctors, the health care reform bill also relies on budget gimmicks and other unsustainable payment cuts to allow its sponsors to argue it will not increase the deficit. As Ruth Marcus wrote recently in the Washington Post, claims that the bill will reduce the deficit are ``premature at best and delusional at worst.''

Rather than creating this new entitlement, we should be using the savings from Medicare to pay to fix Medicare's problems. These payments issues are not going away, and this, or a future Congress, is going to have to pay for them or increase the debt.

We have maxed out our credit cards already. People coming in--this is the season for it--they come in and ask for increases in the programs they already have or they ask for new programs and the funding to go with that program because, of course, the Federal Government is known as the great piggy bank in Washington, and they know we just print money. They didn't know there could be a limit to how much money we print. I suggest those people kind of save their travel money and use it in their program because we are going to have to tell people that not only is the money not there to expand programs and to add new programs, we are going to actually have to cut programs. We are going to have to cut programs to stay solvent.

They are looking at changing our bond rating. That means it would be less favorable for people to buy U.S. bonds.

The reconciliation bill that will be before us this week, also raises taxes by $569 billion. If you can believe it, that is $50 billion more in new taxes than the original Senate-passed bill. So the ``fix-it'' bill we will have in front of us, will put even more pressure on small business owners and entrepreneurs who could help lead our Nation's economic recovery.

This bill also does nothing to stop the billions of dollars in new job-killing taxes created by the Senate health reform bill. Unfortunately, the policies in this bill will only make this situation worse for workers and for businesses across America. This bill increases to $52 billion the new taxes imposed on employers, which will eliminate millions of American jobs and reduce wages for millions of other American workers.

The Nation's unemployment rate is 9.7 percent. Millions of Americans have lost their job and millions more go to work every day worried about keeping the job they have. Businesses of all sizes are struggling to keep their doors open and are finding it harder and harder to make ends meet.

We have shed more than 3.5 million jobs since January of last year and the average work week is now down to 33 hours for the American worker. Yet the bill we will have before us will actually make that situation worse. The Congressional Budget Office has told us that new job-killing taxes in the Senate bill will lower wages across this country.

Rather than addressing the issue and enacting reforms that would lower health insurance costs, the majority's health care bill instead increases the taxes these businesses will have to pay, taking money away from hiring new workers.

When I am home in Wyoming, which is almost every weekend, my constituents are asking me: What does health care reform mean for me?

Unfortunately, I have to tell them when the Senate bill becomes law, their jobs and their paychecks will be in danger. I also found it ironic that on the day the President signed a so-called jobs bill, Speaker Pelosi released a reconciliation bill that contained $52 billion in job-killing taxes.

These problems are the real reasons the American people oppose the Senate health reform bill. Unfortunately, the bill that will be before us fails to address any of the fundamental problems with that bill. If the legislation we are about to debate is enacted, taxes will still be raised by $569 billion, $525 billion will still be cut from the Medicaid Program, wages will still be reduced, and jobs eliminated for millions of Americans. Health insurance premiums will still be driven up--driven up more than if we did nothing at all--and 23 million people will still be left without insurance coverage. We need to do better than that. I believe we can.

While most of the discussion this week will focus on health care, we must not forget that the reconciliation bill drastically alters decades of education and labor policy.

Specifically, I am speaking about eliminating the 45-year-old family friendly bank loans for education program, called FFEL. I put initials on when it has something to do with government. This is one that works through the banks, which has successfully helped millions of Americans realize the dream of a college education, and the shift to a Washington-run direct loan program. This radical change is happening without a single Senate hearing, or a single markup in the HELP Committee, where I serve as ranking member, or any other committee.

The administration and the majority have been promising students since the beginning of this Congress that their Pell grants would be increased dramatically so that college would be affordable. Even with this bill, this promise rings hollow. What does the transfer of $36 billion to the Pell grant program get for students? Yes, $36 billion.

First, it kicks the can down the road by only partially filling the unmet Pell obligation for this year which was promised in the so-called stimulus bill. The remainder only modestly increases the maximum Pell grant awarded by $50 a year. How much do you think tuition is going up?

The Senator from Tennessee explained that every time we add people to Medicaid, that costs the States, and the only place the States have to cut is tuition, college tuition. If college tuition is cut, the board of the college has to raise the tuition. I will have a chart out here one of these times that will show what the difference is between how fast college tuition is rising compared to health care costs, compared to the cost of living.

So we are going to kick the can down the road and only increase the maximum Pell grant by $50 a year. In exchange, students are forced into the one-size-fits all, government-run direct loan program while Congress continues to do nothing about the real problem, which is the runaway cost of college education.

Schools have had the choice of switching to the direct loan program for nearly 20 years, but most, just over 4,000 as of March 1, have chosen to remain in the family friendly bank loan program for education. Why? Because the family friendly program provides services that meet individual student needs far better than the cookie-cutter approach of a government-run direct loan program.

We have enough things the government is running, more this last year. This rushed and dramatic shift puts at risk the availability of guaranteed loans for thousands of students this fall. Under the terms of this bill, all 4,000-plus institutions of higher education, the family friendly program will be required to participate in the bureaucratic direct loan program as of July 1, 2010, a few months away, less than 4 months from today.

I do not believe these schools or the Department of Education have the time or capacity to successfully meet that deadline, and the experts at the Department seem to agree. According to a February 20, 2010, Department of Education procurement document, schools need between 4 and 6 months to successfully switch to the direct loan program.

As a result, many schools will not have in place what it takes to get needed aid to students this fall. Yes, it is true that reconciliation has been used to affect student loans in the past. However, in those instances, it was used to level the playing field between the two loan programs and provide greater access by students to loans.

This bill is nothing more than a government takeover that will turn the Department of Education into one of the largest banks in the Nation--probably not under the financial reform requirements either-- and transfer billions of dollars from middle-class students and taxpayers to pay for only a modest expansion of the Pell grant program which does nothing to lower the cost of a college education.

I will propose amendments that address out-of-control education costs, that give schools time to thoughtfully switch to the direct loan program, that make transparent the actual costs of the direct loan program, that fund an authorized and proven access and completion program, and put real money toward debt reduction.

The majority will tell you what they are doing is being done at no cost to the taxpayer. Do you think America believes that? I, as the accountant in the Senate, disagree with this assertion. In the family friendly program, private lenders provide the capital necessary to fund billions of dollars to student loans each year. With the direct loan program, the Treasury will provide all the capital for these loans, which amounts to nearly $100 billion a year. Where does the money come from? It comes from increasing the public debt of the American taxpayers, many of whom do not have a college education. Shifting the financial burden from those who directly benefit from a college education raises concerns about equity, and again does nothing to address the larger problem of rapidly increasing costs for college education.

This bill also removes safeguards against fraud and abuse from the Black Lung Benefits program. The Black Lung Benefits Act provides monthly payments and the cost of medical treatment to coal miners disabled from pneumoconiosis, black lung, arising from their employment in or around the Nation's coal mines, and provides monthly payments to surviving spouses and other dependents. This bill will establish a retroactive presumption of causation and entitle individuals to lifelong benefits which will be paid for by the employers, insurers and, in cases where the employer is already out of business, by the taxpayers directly.

Taxpayers have already paid more for this program than they expected. The estimated benefits costs when it was enacted in 1975 were $3 billion. However, by 2004 the Federal Government had paid out over $42 billion. Last year, the taxpayers kicked in another $6.5 billion to refinance the program. The changes in this bill will send the program back into a debt spiral by eliminating any need to prove causation. I ask unanimous consent to have printed in the Record a letter from three prominent West Virginia doctors who also oppose the provision because it ``does not take into account the current state of diagnosis and treatment of Black Lung.''

Mr. President, I wish to submit for the record a list of nearly 675 organizations that have written in opposition to Mr. Becker's nomination. These groups represent the backbone of our Nation's economy and the catalysts we will need to create new American jobs. They believe Mr. Becker's stated views represent a threat to economic growth, and they oppose Mr. Becker as a nominee for the National Labor Relations Board.

I ask unanimous consent that this list be printed in the Record immediately following my remarks.

Thank you, Mr. President. I am going to oppose cloture of the nomination of Craig Becker to be a member of the National Labor Relations Board. My colleagues know it is very unusual to have a cloture vote on a HELP Committee nominee, but this will be the second in as many weeks. In fact, these two nominees are the only HELP nominations I have opposed. Over 40 HELP nominees have been swiftly confirmed after appropriate consideration in this Congress, but these two nominees are problematic, and instead of withdrawing the nominations as has been done in previous administrations, the majority is attempting to force them through.

Craig Becker was first nominated last July, and controversy surrounding his nomination has only grown since then. A review of decades of writings by Mr. Becker has revealed that he has advocated for the most radical theories of labor law, pursuing policies such as mandatory unionization where an employee would choose which union to join, not whether to join a union; and questioning whether an employer has a right to any involvement at all in the unionization questions in his workplace.

In addition to his writings, Mr. Becker has spent the majority of his career serving as counsel to the two largest labor organizations in America, which has raised questions about his ability to fairly adjudicate cases involving those unions.

On these issues and others, members of the HELP Committee raised a number of serious concerns. It has been cited as a negative that Republicans on the committee submitted hundreds of written questions to Mr. Becker, and it is certainly true that we did ask a lot of questions. Last year, Mr. Becker answered 276 questions for the record. Following his hearing this month, he was sent more than 100 more.

The fact that we have submitted over 400 questions and after three rounds of questions still do not believe we have gotten definitive answers is merely another sign of the deep concerns about this nominee. Last week, the chairman noted Mr. Becker has faced more questions than Supreme Court Justice Sonia Sotomayor. I am not sure I understand the relevance of this fact. I have yet to find the constituent who is urging us to ask fewer questions of our nominees to positions of high public trust.

Furthermore, if a nominee garners a greater level of public scrutiny and larger than usual volumes of questions, we should ask why. This unique scrutiny should be a signal that the individual has raised a great level of concern and controversy. A nominee as controversial as Craig Becker should not go forward, and for that reason I will oppose cloture today.

The Health, Education, Labor, and Pensions Committee has had other nominees who, right or wrong, became controversial. Some of those occurred while I was chairman. Yet not once did I force through a nominee on a party-line cloture vote. We faced partisan opposition for nominees for Surgeon General, the Food and Drug Administration, and the Mine Safety and Health Administration. Oftentimes there appeared to be very little basis for that opposition to my side of the aisle. But because of the strong opposition, the nominees were not confirmed.

In the final 2 years of the last administration, the majority leader held pro forma sessions to even prevent recess appointments, and now the majority, in their control of the calendar, has taken the last 2 weeks to try to jam through partisan, controversial nominees while the public is seeking solutions to the many economic problems facing our Nation.

I wish to point out that there is another way. There are three current vacancies at the National Labor Relations Board, and the HELP Committee has unanimously approved the President's other two nominees. If the Senate wanted to confirm two new members to the Board, it could have easily done so today. In fact, it could have done so last year. One of these nominees, Mark Pearce, is a labor-side attorney who has spent his career representing labor unions. The other is a Republican nominee with management-side experience in addition to tenures on the staff of the National Labor Relations Board and in the Senate as my labor policy director, Brian

Hayes. Yet these nominees did not inspire objections from HELP members on either side of the aisle.

Both Mr. Hayes and Mr. Pearce met with Senators, answered written questions--not nearly as many because there weren't the same degree or amount of concerns--and convinced us that they were well qualified and able to be impartial. Clearly, being linked to interest groups such as labor unions and having opposing policy positions is not disqualifying for nominees before the HELP Committee. The problem with Mr. Becker's nomination is not that he works for unions or that he supports policies which many of us oppose. We have approved dozens of nominees with whom we disagree.

The problem is this nominee has shown in his writings and in his responses to the committee that his thinking is far outside the mainstream. This nominee has failed to convince us that he will not attempt to circumvent Congress and impose card check-style measures administratively to tilt the playing field against employers.

For 7 months Senators have been attempting to address and analyze concerns raised by the employer community and others regarding Mr. Becker's writings, particularly the potential for radical changes in labor law that he has advocated and argued can be implemented without congressional authorization. We have also heard concerns about the nominee's position on recusal, since he spent more than two decades working with the Nation's two largest labor organizations.

There were additional questions about Mr. Becker's status as both an employee of a labor union and as an adviser to the President's transition team. There were questions about Mr. Becker's possible authorship of Executive Orders in that capacity, one of which limited the information given to employees about their right to refrain from paying certain union dues.

Finally, there were concerns about Mr. Becker's role as SEIU associate general counsel and the SEIU's involvement with the scandal surrounding ACORN and former Illinois Governor Rob Blagojevich. Senators attempted to address all of these concerns through interviews, written questions, and a hearing. However, not all of the concerns were favorably resolved, and last Thursday, the nomination was reported out on a party-line vote.

I have made numerous attempts to alleviate concerns about Mr. Becker's stated plans to reinterpret the National Labor Relations Act to limit the ability of employers to participate in the process or otherwise tilt the playing field unfairly against employers. However, his answers have been far from reassuring.

When asked if he would ever support imposing the main provisions of the card check bill through regulatory fiat, he left the door open. He answered that while the statute might be interpreted to not permit the Board to uniformly strip employees of the ability to have secret ballot elections, impose mandatory binding arbitration, and raise penalties on employers, if presented with arguments that it would, he would keep an open mind.

He also told me he believed the Board could impose ``quickie elections''--one of the main card check alternatives that has been discussed. He said he was open to requiring employers to provide personal contact information for all of their employees to any union that asked. He also made it clear he would be open to broadening the use of mandatory bargaining orders in cases where there is no showing that a union has the support of a majority of employees.

Despite the hundreds of written questions he has answered, Mr. Becker has failed to convince me he would not enter into the job with a preconceived agenda to unfairly tilt the playing field against employers, altering the delicate balance of current labor law.

The relative freedom from industrial strife that has allowed America to prosper since enactment of the National Labor Relations Act in 1935 is dependent on a balance between the rights of employees to collectively bargain and the right of employers to control their workplace. It is essential that we not allow the balance to be upended now. In this critical time for our economy, our Nation is dealing with a 9.7-percent unemployment rate, and more than 11 million Americans are drawing unemployment benefits.

Comparative studies have shown that enactment of the card check provision will increase unemployment, making the situation only worse. Because of the Board's broad and important agenda, we simply cannot take the risk of supporting this nominee.

Two recent developments have given me additional pause in reviewing Mr. Becker's nomination. First, despite Mr. Becker's vague assertions, there have been several recent articles and statements from his own movement that confirm all our concerns. In The Nation magazine, another union lawyer wrote that all of the card check provisions and the card check alternative provisions I discussed earlier can be achieved without congressional authority and stated this as a reason to confirm Becker.

Former NLRB member, William Gould, made the same point in an article last year, and a union official wrote just last week that:

If we aren't able to pass the Employee Free Choice Act, we

will work with President Obama and Vice President Biden and

their appointees to the National Labor Relations Board to

change the rules governing forming a union through

administrative action.

There is obviously a high expectation among organized labor constituencies that Mr. Becker can be sent to the National Labor Relations Board to deliver wanted policy changes which cannot be achieved through Congress. Because he has failed to unequivocally rule out that possibility, I can't support his nomination.

The second reason I am demanding a high degree of certainty in his answers is my recent direct experience with nominees who claim to have no opinions on certain issues and no preconceived agenda but who, once confirmed, immediately take action on what they claim to have no preconceived position on. An example of this is the current situation at the National Mediation Board, NMB.

Last year, the Senate unanimously confirmed two nominees from the National Mediation Board. Some Members, including myself, specifically asked each of them about their position on changing the way a majority in a unionization election is measured. In response, both these nominees testified they had no preconceived agenda to alter rules that had been in place for 75 years. You will recall the Senator from Georgia, Senator Isakson, had the same concern and asked them specifically, even in private meetings, what their opinion would be. Yet practically before the ink had dried on their confirmations, these two nominees began pushing through a regulation that is a wholesale reversal of those rules to tilt the playing field to the benefit of labor unions. In their haste, the Democratic members of the Board thoroughly disregarded the rights of the single minority member. The minority member was given no notice that an effort to initiate rulemaking was underway and, instead, was given 1\1/2\ hours to review the final rule proposal to determine if she would support it. They even tried to stop her from publishing a dissent to the proposal. There are strong indications that the two recently confirmed National Mediation Board members were not forthright with the Senate, and it is clear they showed no respect for the rights of the Mediation Board minority, the regulatory process or the legislative process. In promising Senators to keep an open mind going into this decision, these National Mediation Board nominees used the very same language Mr. Becker uses today.

Similarly, the President's nominee for the Occupational Safety and Health Administration faced many concerns from the small business community and others about his possible agenda going into office. Undoubtedly, the President's nominee for this position would have some views I do not agree with and I fully expect and accept that. But I sought to form an understanding with him on an issue that has traditionally drawn bipartisan support; that is, compliance assistance programs at OSHA that substitute ``gotcha'' inspections with advice and guidance to cooperatively create safer workplaces and save the government money. When it became clear to me the premier compliance assistance program--the Voluntary Protection Program or VPP--was being downsized, I asked the OSHA nominee if he supported compliance programs.

He assured me he ``recognized their great value.'' I asked if he would reevaluate the decision to downsize it. He assured me he would and promised to work with the committee. He was confirmed unanimously. Yet when the budget came out last week, it proposed transferring program staff to another function and eliminate its funding. This does not meet anyone's definition of ``support.''

Now, Mr. Becker is nominated for a different agency and is a different nominee. I certainly don't want to impute the actions of others onto Mr. Becker, but my recent experiences with what nominees say in the confirmation process and how they act once confirmed has forced me to be far more skeptical of vague assurances.

I am also concerned that Mr. Becker's ethics disclosure paperwork has not been updated with the Office of Government Ethics since July 2009, nor has the ethics agreement been revised since April 2009. The administration has pledged support for transparency and accountability and I, therefore, question their decision to rush this nominee through without a proper ethics review.

Independent boards, such as the National Labor Relations Board, are entrusted with a great deal of autonomy. The decisions they hand down and the regulations they enforce have a great deal of impact on a very significant portion of our economy and our Nation's jobs. In the Senate, it is our responsibility to determine if these nominees can be entrusted with this power or if they would compromise fairness to grant favors to special interest groups or former employers.

Late last week, the Senate invoked cloture on Patricia Smith, by a partisan vote of 60 to 32, jamming through a controversial nominee who misled the HELP Committee. To be clear, I have been supportive of nearly all the nominees who have come before the HELP Committee, and I have worked hard with the chairman to swiftly confirm qualified nominees and put them into office. But the Senate has an important responsibility of advice and consent. To regain the trust of the American people, we should demand more accountability from the people we are putting into offices of public trust. I urge this administration to find qualified nominees who will enjoy broad support in the Senate, and I have offered my commitment and past experience to assist with the swift confirmation of those qualified nominees.

For all the above reasons, I will oppose Mr. Becker's nomination to serve as a member of the National Labor Relations Board, and I urge my colleagues to do the same.

I hope the other two nominees who are well qualified, uncontroversial, and who had bipartisan support will be brought to the floor. I also hope this controversial nominee will not be put on the Board through a recess appointment if the Senate rejects the nomination on a bipartisan basis today. As I mentioned before, anytime there were candidates who had that kind of opposition in the past, they were not pushed through on a cloture vote and I hope that will be the case and the name will be withdrawn.

I thank the Chair and yield the floor.

Exhibit 1

Entities that Oppose Craig Becker's Nomination to the National Labor

Relations Board

American Hotel and Lodging Association (AH&LA); American

Association of Nurse Executives; American Trucking

Association; Associated Builders and Contractors, Inc. (ABC);

Associated General Contractors of America; College and

University Professional Association for Human Resources; Food

Marking Institute; HR Policy Association; Independent

Electrical Contractors, Inc.; International Foodservice

Distributors Association; International Franchise

Association; National Association of Manufactures (NAM);

National Association of Wholesaler-Distributors; National

Federation of Independent Business; National Pest Management

Association; National Ready Mixed Concrete Association;

National Retail Federation; National Roofing Contractors

Association; Printing Industries of America; Retail Industry

Leaders Association.

Society for Human Resource Management; Steel Manufacturers

Association; US Chamber of Commerce; HR Policy Association;

National Retail Federation; The Coalition for a Democratic

Workplace; A.O. Smith Corporation; A. Schulman; Accurate

Castings, Inc.; Accuride International Inc.; Ace

Manufacturing Industries; Aeries Enterprises LLC; Ahaus Tool

and Engineering, Inc.; Ahresty Wilmington Corporation; Air

Logistics Corporation; All American Mfg. Co; Allegheny

Technologies Incorporated; Allied Machine & Engineering

Corp.; National Right to Work Committee; Americans for

Limited Government; The American Conservative Union.

Allied Plastics Co., Inc.; Alloy Resources Inc.; Altadis

USA, Inc; AM Castle; AMB Enterprises, LLC; American Circuits,

Inc.; American Coolair Corporation; American Dehydrated

Foods, Inc; American Felt & Filter Company; American Foundry

Society; American Hydro Corporation; American Lawn Mower

Company; American Safety Razor Company; American Shizuki

Corporation; American Shower Door; Amsco Windows; Anchor

Fabricators, Inc.; Anthony Timberlands, Inc.; Aries

Electronics Inc.; Arkansas State Chamber of Commerce/Assoc.

Ind. of Arkansas.

Arm-R-Lite Door Mfg. Company, Inc.; Arobotech Systems,

Inc.; Arrow Adhesives Company; Artwoodworking & Mfg. Co.; ASC

Profiles Inc.; Ashley Furniture Industries; Associated

Industries of Massachusetts; Atlantic Mold & Machining Corp.;

Atlas Machine and Supply Inc.; ATS Medical, Inc.; Auburn

Gear, Inc.; Auto Truck, Inc.; Avtron Aerospace, Inc.; Bannish

Lumber, Inc.; Batesville Products, Inc.; Beacon Converters,

Inc.; Bead Industries, Inc.; Beck Steel; Bell Laboratories,

Inc.; Belton Industries, Inc.

Bergsen Inc.; Berkley Screw Machine Products, Inc.; Berlin

Metals; Bertch Cabinet Mfg., Inc.; Best Chairs, Inc.; BesTech

Tool Corporation; Better Baked Foods, Inc.; Betts Industries,

Inc.; BH Electronics, Inc.; Bicron Electronics Co; Big D

Metalworks; BioResearch Associates, Inc.; Bison Gear &

Engineering Corp.; Blue Bell Creameries, L.P.; BlueScope

Steel North America; Bollinger Shipyards, Inc.; Bommer

Industries, Inc.; Boston Steel & Mfg. Co.; BPI, Inc.; Braun

Northwest, Inc.

Brick Industry Association; Bridgestone Americas, Inc.;

Brigham Exploration Company; Brinkman International Group,

Inc.; Broan-NuTone LLC; Broderson Manufacturing Corp.; Brush

Engineered Materials; Buckeye Fabricating Company; C and M

Manufacturing Incorporated; Calgon Carbon Corporation;

Cambridge Specialty Co.; Cameron Manufacturing & Design,

Inc.; Cardinal Systems Inc; Carter Products Co., Inc.; Case

Systems, Inc.; CASHCO Inc.; CB Manufacturing & Sales Co.,

Inc.; CEMCO Inc.; Cemen Tech, Inc.

Centennial Bolt, Inc.; Central Bindery Company; Central

States Fire App LLC; CFX Battery, Inc.; Chaney Enterprises;

Channellock Inc.; Chatsworth Products, Inc.; Chemstar

Products; Clinch-Tite Corp.; Clow Stamping Co. CMD

Corporation; Coast Controls, Inc.; Coastal Forest

Resources; Coastal Plywood Company; Coating Excellence

International; ColorMatrix Corporation; Commercial Cutting

and Graphics, LLC; Conestoga Wood Specialties Corporation;

Construction Specialties, Inc.; Con-way, Inc.; Cooper Tire

& Rubber Company.

Corbett Package Company; Crafted Plastics, Inc.;

CrossCountry Courier; CRT, Custom Products, Inc.; Crysteel

Manufacturing Incorporated; Custom Applied Technology Corp.;

Custom Tool and Grinding, Inc.; Dakota Awards, Inc.; Dakota

Specialty Milling, Inc.; Dart Container Corporation; Davron

Technologies, Inc.; Dayton Industries Inc.; Deist Industries,

Inc.; Delta Power Company; Dews Research Laboratories, LLC.;

Dietz & Watson, Inc.; Dixie Printing & Packaging Corporation;

Dixon Insurance Inc.; DLH Industries, Inc.; Domain

Communications LLC.

Don R Fruchey, Inc.; DORMA Architectural Hardware; Dorner

Mfg. Corp.; Drawn Metals Corporation; Drenth Brothers Inc.;

DRT Mfg. Co.; DTR Industries, Inc.; Duke Manufacturing Co.;

DuPage Machine Products; Duraclass by TBEI; Du-Well Grinding

Enterprises, Inc.; E&E Manufacturing Co. Inc.; E.D. Bullard

Company; East Penn Manufacturing Co., Inc.; East-Lind Heat

Treat, Inc.; Eclipse Inc.; Edison Price Lighting; Elan

Technology, Inc.; Electro Arc Mfg. Co. Inc.; Electronic

Systems, Inc.

Ellwood Group, Inc.; EM-CO Metal Products, Inc.; Emery

Corporation; Energy Exchanger Company; Engineered Building

Design, L.C.; Ervin Industries; Everhard Products, Inc.;

Exxel Outdoors, Inc.; F.C. Brengman & Associates; F.N.

Sheppard & Co.; Falcon Plastics, Inc.; Fargo Assembly Co.;

Fiber Resources, Inc.; Fiberglass Coatings Inc.; Flambeau,

Inc.; Flexcon Industries Inc.; FONA International; Food

Services of America; Forrest Machine, Inc.; Foster

Transformer Co.

Founders Insurance Group, Inc.; Fox Valley Molding Inc.;

Foxx Equipment Company; Franklin International; Frasal Tool;

Fredon Corporation; Freedom Corrugated, LLC; Freeport Welding

& Fabricating, Inc.; GCR Associates; Gemini, Inc.; General

Machine Products Co.; General Steel and Supply Company;

Genest Concrete Works, Inc.; Geokon Inc.; Glas-Col, LLC;

Glasforms Inc.; Glastender, Inc.; Glier's Meats Inc.; Globe

Products Inc.

Gold'n Plump Poultry; Gossner Foods Inc.; Grande Cheese

Company; Granite Rock Company; Graphite Metallizing; Green

Bay Packaging Inc.; Grossman Iron & Steel Company; Gruber

Systems Incorporated; Guardian Industries Corp.; Hamilton

Caster & Mfg. Co.; Hammond Group, Inc.; Harden Furniture

Company, Inc.; Hardwood Products Company; Harold Beck & Sons,

Inc.; Henry Brick Company, Inc.; Henry Molded Products;

Hercules Drawn Steel Corporation; HES Inc.; HFI, LLC.;

Hialeah Metal Spinning, Inc.

High Company LLC; High Industries, Inc.; Hiwasse

Manufacturing Company, Inc.; Hobson & Motzer, Inc.; Holden

Industries, Inc.; Horizon Steel Co.; HTI Cybernetics;

Hudapack Metal Treating Companies; Huron Automatic Screw Co.;

Illinois Tool Works Inc.; Industrial Fasteners Institute;

Industrial Metal Fab, Inc.; Industrial Nut Corp.; Industrial

Spring Corporation; Interlocking Concrete Pavement Institute;

International Hydraulics Inc.; Iten Industries; J.C. Steele &

Sons, Inc.; J.T. Fennell Co., Inc.

Jaquith Industries Inc.; Jasper Desk Company, Inc.; JELD-

WEN; Jesco Industries Inc.; Jobbers Moving & Storage; John

Sterling Corporation; Johnsen Trailer Sales, Inc.;

Johnsonville Sausage LLC; Jorgensen Conveyors, Inc.; Kapstone

Paper and Packaging Corp.; Kell-Strom Tool Company Inc.;

Kercher Machine Works, Inc.; Keystone Nitewear Co. Inc.;

Kitchen Cabinet Manufacturers Association; Klann

Incorporated; Kleenair Products Co.; Koike Aronson, Inc.;

Koller-Craft Plastic Products; Konz Wood Products.

Kuryakyn Holdings, Inc.; L.D. McCauley, LLC; La Deau Hinge

Company; Lamiglas, Inc.; Lapp Insulators LLC; Laserage

Technology Corporation; Layton Truck Equipment Co., LLC;

Leech Carbide; LEECO Spring International; Leed Himmel Ind.;

Lifoam Industries; Liftmoore, Inc.; Lord Corporation; Lovejoy

Tool Company, Inc.; LSI Industries Inc; LSI Metal Fabrication

Division of LSI Industries Inc.; LSI MidWest Lighting; Luick

Quality Gage & Tool, Inc.; Lunar Industries, Inc.; M&M Hi

Tech Fab, LLC.

Mack Boring and Parts Co.; Mansfield Industries Inc.;

Markel Corporation; Mar-Mac Wire, Inc.; Martindale Electric

Company; Massachusetts Container Corp.; Materials Processing,

Inc.; Mathews Brothers Company; Mathison Metalfab,

Inc.; Mazak Corporation; McAlpin Industries, Inc.;

McNaughton & Gunn, Inc.; McNichols Company; M-D Building

Products, Inc.; Meadows Mills Inc.; Merrick Pet Care;

Merritt Equipment Co.; Metal Moulding Corp.; Metal Powder

Industries Federation; Metal Products Company.

Metallized Carbon Corporation; Metals Service Center

Institute; Metalworks Inc.; MET-L-FLO Inc.; Metl-Span LLC;

MFRI, Inc.; Micro Abrasives Corporation; Mid Atlantic

Manufacturing & Hydraulics Inc.; Middletown Tube Works, Inc.;

Midmark Corporation; Midwest Fabricating Company; Midwest

Metal Products, Inc.; Mike-sells Potato Chip Company; Milbank

Manufacturing Company; Miles Fiberglass and Composets; Mina

Safety Appliances Co.; Mississippi Lime Company; Modern Metal

Processing, Inc.; Molded Fiber Glass Companies; Montana

Silversmiths Inc.

Moore Industries International Inc.; Morgan Ohare, Inc.;

MTD Products Inc.; MTH Pumps; Mullinix Packages, Inc.; N.C.

Industries, Inc.; NACCO Industries, Inc.; National

Association of Manufacturers; National Bronze Mfg.; National

Capital Flag Co. Inc.; National Ceramic Company; National

Solid Wastes Management Association; National Tube Form;

Nebraska Chamber of Commerce & Industry; Nevada Heat

Treating, Inc.; Nevada Manufacturers Association; New Jersey

Business & Industry Association; Nordex, Incorporated; North

American Association of Food Equipment Manufacturers.

North American Die Casting Association; North Dakota

Chamber of Commerce; North Dakota Petroleum Marketers & North

Dakota Retail Associations; Northeast PA Manufacturers &

Employers Association; Northeast Prestressed Products;

Northern Concrete Pipe Inc.; Nosco CTX; Nosco, Inc.; Novelis;

NPC, Inc.; O. F. Mossberg & Sons, Inc.; Oil City Iron Works,

Inc.; Oil-Dri Corporation of America; Olympian Precast, Inc.;

Olympian Precast, Inc.; OMCO Holdings, Inc.; Omega Design

Corporation; Omega Precision Corp.; Open-Ended Response; OSI/

ISI/SunnyMaids.

Paper Machinery Corporation; Parkway Products; Parts Depot

Inc.; Paulo Products Company; Pawling Corporation; Peerless

Saw Company; Pella Corporation; Pennsylvania Manufacturers'

Association; Penske Corporation; Penske Truck Leasing; Pepsi-

Cola Bottling Co., Inc. of Norton; Pepsi-Cola Bottling

Company of New Haven, MO; Pequot Tool & Mfg., Inc.; Perlick

Corporation; Pete Lien & Sons, Inc.; Peterson Manufacturing

Co.; PGT Industries, Inc.; Phoenix Electric Mfg. Co.; Pine

Hall Brick Co., Inc.; Plastic Molded Concepts.

Plasticolors, Inc.; Plastics One; PMF Industries, Inc.;

Polyfab Corp; Portec, Inc.; Power Curbers Inc.; PPG

Industries; PQ Corporation; Prairie Tool Co. Inc.; Precision

Automation Company, Inc.; Precision Machined Products

Association; Precision Steel Warehouse, Inc.; Pretzels, Inc.;

Price Pump Company; Printed Specialties Inc.; Process

Equipment, Inc.; Production Specialties Corporation; Quadrant

Tool and Manufacturing; Quality Chaser Company.

Radiant Steel Products Company; Radix Wire Company; Rain

Flow USA, Inc.; Rainey Road Holdings, Inc.; Rampe Mfg Co

Torque Transmission Division; Ramsey Products Corporation;

Ranco Fertiservice, Inc.; RdF Corporation; Red Bud

Industries, Inc.; Reed Mfg Services; Remanco Hydraulics Inc.;

Reuther Mold & Mfg. Co.; Riggs Industries and subsidiaries;

Roaring Spring Blank Book Co.; Roberts Automatic Products,

Inc.; Robroy Industries; Rock Industries, Inc.; RoMan

Manufacturing, Inc.; Roppe Corporation; Roquette America

Inc.; Roth Horowitz, LLC.

Route 94 Consulting; ROW, INC; RTI International Metals,

Inc.; Rugby Manufacturing; Schatz Bearing Corporation; Scot

Forge Company; Scott Douglas Porter, Esq.; Scott Metals Inc;

Seals Eastern Inc.; Searing Industries; SGS Tool Company;

Shar Systems, Inc; Showplace Wood Products, Inc.; Shultz

Steel Co; Signal Mountain Cement Company; Silbond

Corporation; Sioux Corporation; Siplast Inc.; Sirois Tool

Co., Inc.; SJE Rhombus.

Smith Setzer & Sons Inc; Solar Atmospheres Corporation;

Sommer Metalcraft Corporation; Southco Industries, Inc.;

Southeastern Hose Inc.; Southern Alloy Corporation; Southern

Champion Tray LP; Southland Tube, Inc,; Spirax Sarco, Inc.;

Spuncast, Inc.; St. Armands Baking Co.; Standex International

Corporation; Star Cutter Company; Star Iron Works, Inc.;

Steel Manufacturers Association; Steelscape, Inc.; Steffes

Corporation; Stellar Industries, Inc.; Sterking Engineering

Corp.; Sterling Engineering Corporation.

Sterling Machine Co. Inc.; Stone City Products, Inc.;

Stoner, Inc.; Stoneridge Inc.; Streator Dependable

Mfg. Strongwell; Sturm, Ruger & Co., Inc.; Suhner

Manufacturing, Inc.; Summers Manufacturing Co., Inc.;

Sunnyside Corporation; Superior Graphite Co.; Superior Oil

Company, Inc.; Superior Woodcraft, Inc.; Surpass Chemical

Co., Inc.; Swanson Industries, Inc.; Sweet Street

Desserts; Syncro Corporation; Systems Services of America,

Inc.

Tailored Label Products; TBEI, Inc.; TCI, LLC; Teakdecking

Systems Inc.; Techsys Chassis, Inc.; Tecumseh Packaging

Solutions, Inc.; Tegrant Corporation; TekTone Sound & Signal

Mfg., Inc.; Templeton Coal Company, Inc.; Tennessee Chamber

of Commerce & Industry; Tennsco Corp.; Ten-Tec, Inc.; Texas

Association of Business; Textile Rental Services Association

of America; The Adams Company; The Challenge Machinery

Company; The DUPPS Co.; The Envelope Printery, Inc.; The Hill

and Griffith Company; The Kirk-Habicht Company.

The Knapheide Manufacturing Company; The Manitowoc Company,

Inc.; The MasonBox Co.; The Nelson Co. Inc.; The ROHO Group;

The Schwan Food Company; The Scotts Miracle-Gro Company; The

Sheffer Corporation; The Shockey Companies; The Timken

Company; ThermoSafe Brands; Thomas Instrument Co.; Thompson

Management Associates; Thomson Lamination Company, Inc.;

ThyssenKrupp Waupaca Inc; Tiefenbach North America, LLC;

Tiffin Powder Coating Specialists; Timber Truss Housing

Systems, Inc.; Torco Inc.; Transducers Direct, LLC.

Transportation Costing Group, Inc.; Tree Top, Inc.; Trim-

Tex, Inc.; Trumpf Inc.; Tubodyne Company Inc.; Twin City

Roofing, LLC; Tyco Electronics; Ultra Tech Machinery Inc.;

Unex Manufacturing Inc.; United Equipment Accessories, Inc.;

Uniweld Products Inc.; Unlimited Services; USG Corporation;

Utility Trailer Manufacturing Company; Valley Converting Co.,

Inc.; Vanamatic Company; Ventahood, Ltd; Vermeer; Virginia

Manufacturers Association.

W M I; W. R. Meadows, Inc. Wagstaff, Inc.; Wahpeton

Breckinridge Area Chamber of Commerce; Walnut Custom Homes,

Inc.; Walters Brothers Lumber Mfg., Inc.; Warren

Distribution, Inc; Waste Equipment Technology Association;

Waukesh Metal Products; Weiss-Aug Co. Inc.; Weldon Solutions;

Werthan Packaging, Inc.; WESCO International, Inc.; Western

Extrusions; Westside Finishing Co., Inc.; Wildeck,

Inc.; Williams-Pyro, Inc.; Winslow LifeRaft Company; Wire

Belt Company of America.

Wisconsin Valley Concrete Products Co.; Wood Connection,

Inc; Wood's Powr-Grip Co. Inc.; WPT Power Transmission Corp.;

Xybix Systems, Inc; Yancey's Fancy, Inc.; Young's Welding,

Inc.; Zippo Manufacturing Co.

Apartment & Office Building Association; Arlington Chamber

of Commerce; Associated Builders & Contractors--Virginia

Chapter; Associated General Contractors; Bedford Area Chamber

of Commerce; Bristol Chamber of Commerce; Chase City Chamber

of Commerce; Dinwiddie County Chamber of Commerce; Dulles

Regional Chamber of Commerce; Fairfax Chamber of Commerce;

Fredericksburg Regional Chamber of Commerce; Goochland

Chamber of Commerce; Greater Augusta Regional Chamber of

Commerce; Greater Bluefield Chamber of Commerce; Greater

Reston Chamber of Commerce; Greater Richmond Chamber of

Commerce; Greater Springfield Chamber of Commerce.

Halifax County Chamber of Commerce; Hampton Roads Chamber

of Commerce; Hampton Roads Utility and Heavy Contractors

Association; Harrisonburg-Rockingham Chamber of Commerce;

Heavy Construction Contractors Association; Home Building

Association of Richmond; Home Builders Association of

Virginia; Isle of Wight Chamber of Commerce; Loudoun County

Chamber of Commerce; Lynchburg Regional Chamber of Commerce;

NAIOP Northern Virginia; National Federation of Independent

Business; Northern Virginia Technology Council; Oilheat

Association of Central Virginia; Old Dominion Highway

Contractors Association; Petersburg Chamber of Commerce;

Precast Concrete Association of Virginia; Prince William

County-Greater Manassas Chamber of Commerce; Prince William

Regional Chamber of Commerce; Richmond Area Municipal

Contractors Association; Roanoke Regional Chamber of

Commerce; Smith Mountain Lake Chamber of Commerce.

Virginia Agribusiness Council; Virginia Apartment &

Management Association; Virginia Asian Chamber of Commerce;

Virginia Assisted Living Association; Virginia Association of

Broadcasters; Virginia Association of Health Plans; Virginia

Association of Chain Drug Stores; Virginia Association for

Commercial Real Estate; Virginia Association for Home Care

and Hospice; Virginia Association of Nonprofit Homes for the

Aging; Virginia Association of Roofing Contractors; Virginia

Autobody Legislative Committee; Virginia Automatic

Merchandising Association; Virginia Automobile Dealers

Association; Virginia Biotechnology Association; Virginia

Business Council; Virginia Cable Telecommunications

Association; Virginia Chamber of Commerce; Virginia Coal

Association; Virginia Economic Developers Association.

Virginia FREE; Virginia Health Care Association; Virginia

Hispanic Chamber of Commerce; Virginia Hospital and

Healthcare Association; Virginia Hospitality and Travel

Association; Virginia Manufacturers Association; Virginia

Motorcycle Dealers Association; Virginia Petroleum,

Convenience, and Grocery Association; Virginia Poultry

Federation; Virginia Propane Gas Association; Virginia Ready-

Mixed Concrete Association; Virginia Retail Federation;

Virginia Retail Merchants Association; Virginia

Transportation Construction Alliance; Virginia Trucking

Association; Virginia Wholesalers & Distributors.

Mr. President, I ask unanimous consent that the Senate go into a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Mr. President, Scouting came to America 100 years ago because of a good deed. We are now entering the second 100 years of Boy Scouting. As I said, Scouting came to America 100 years ago yesterday because of a good deed. An American, William Boyce, was visiting London when he suddenly got lost in the fog. A young boy found him and helped him find his way. When Mr. Boyce offered to give the young boy money, he said, ``No, thank you, sir, I am a Scout. I won't take anything for helping.'' Boyce was so overcome by the Scout's generosity that he arranged to meet with Lord Robert Baden-Powell, the founder of Scouts in Great Britain. After returning from his trip, Mr. Boyce met with a group of American businessmen, educators, and political leaders and founded the Boy Scouts of America on February 8, 1910. Nobody knows what happened to the boy who guided Mr. Boyce through the foggy streets of London that day, but his kindness lives on in the spirit of each Boy Scout today.

The Boy Scouts is one of the largest youth organizations in the United States--one of the very few recognized by Congress. Since its founding in 1910, it is estimated that more than 110 million Americans have served as members within its ranks. Scouting offers young people the promise of friendship, an opportunity to set positive goals, and teaches boys how to experience the outdoors. Above all, Scouting is about service and building character.

To understand Scouting, you only need to look at the Scout Oath. The oath sets out the principles of Scouting and explains just what it means to be a Boy Scout. It goes:

On my honor--

Meaning the Scouts live by their word and promise to follow the Scout Oath--

I will do my best--

Scouts measure their achievements against their own high standards. Scouts do so without being influenced by peer pressure or what other people do----

to do my duty to God--

Scouts are reverent toward God. They are faithful in their duties, and Scouts respect the beliefs of others--

and my country--

Scouts keep the United States a strong and fair Nation by learning about our system of government and acting as responsible citizens. Scouts work to improve their communities and seek to protect and use our national resources wisely--

and to obey the scout law--

Scouts respect and live by the 12 points of the Scout Law. These 12 points are guidelines which lead people to make responsible choices--

to help other people at all times--

Scouts recognize that there are many people in need.

They know that a cheerful smile and helping hand will ease the burden of most who need assistance--

to keep myself physically strong--

Scouts pledge to take care of their bodies so that it will serve for an entire lifetime. That means eating nutritious foods and exercising regularly. It also means Scouts avoid harmful drugs, alcohol, and tobacco--

mentally awake--

Scouts develop their minds both in the classroom and outside of school. They are curious about everything around them and work hard to make the most of their abilities--

and morally straight.

To be a person of strong character, a Scout's relationship with others should be honest and open. Scouts respect and defend the rights of all people, and they are clean in their speech and actions.

All Scouts reaching the first rank of Tenderfoot must be able to recite and explain the meaning of the Scout Oath.

The Boy Scouts also empower young people to pursue meaningful life goals. That includes putting them on the path to Scouting's highest honor.

To backtrack just a moment, because one of the points of that Scout Oath, or promise, was to obey the Scout Law, this is the new Boy Scout Handbook. I had a hard-bound one. Now they have a spiral-bound one that makes it much easier to get into. The Scout promise says that you will obey the Scout Law. The Scout Law is that ``a scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent''--all good virtues that are promoted. There aren't a lot of youth organizations now that promote virtues and build character.

So it has been helpful from that standpoint for a lot of people, including myself.

The Boy Scouts do empower young people to pursue meaningful goals. A major goal of Scouts is to be on the path of Scouting's highest honor, which is to be an Eagle Scout. The first Boy Scout Handbook described an Eagle Scout as ``the all-around perfect Scout.'' That is a very demanding standard and may explain why fewer than 4 percent of Boy Scouts reach the rank of Eagle Scout. Pursuing this honor requires young people to master the skills of leadership, service, and outdoor know-how. It also requires the practice of good citizenship and sound ethical behavior. Above all, once you are an Eagle Scout, you are always an Eagle Scout. It is something that is listed on resumes for the rest of their life--one of the few works from youth that can be listed on a resume.

From 1912 to 2009, 2 million Boy Scouts earned the Eagle Scout rank. Eagle Scouts have become leaders in all walks of life, including business, academics, entertainment, science, and, yes, even government. Within the 111th Congress alone, there are 22 Members who received their Eagle Scout awards. Eagle Scouts also leave an everlasting impact on their communities through the civic projects they complete to earn their rank. Park improvement projects, trail enhancements, organizing community events, and construction projects only begin to explain the things Eagle Scouts have done to improve the world around them.

Over its 100-year history in America, Boy Scouting has shaped many young lives. The service that Scouts have performed is immeasurable, but there are many noteworthy moments.

During World War I, Scouts played an important role in the war effort by collecting used paper and glass from homes. They also sold Liberty Bonds during World War I, valuing over $147 million. Congress was so grateful for the service of the Boy Scouts that they granted the Boy Scouts of America a special charter in 1916. President Roosevelt called on Scouts to help the needy in 1934 during the Great Depression. Throughout World War II, they again collected materials and sold war bonds to help the allied effort. By 1954, there were over 100,000 Boy Scout units, and in 2000 the Boy Scouts honored its 100 millionth member.

I rise today to honor the 100th anniversary of Boy Scouts. I also wish to draw attention to the release of the 100th anniversary commemorative stamp to be released by the Postal Service this summer. Scouting has meant a great deal to me and my family over the years, and I wish to recognize this momentous occasion.

With the Boy Scouts of America, the values of leadership, service, character, and achievement will live on to make our communities a better place. Remember, it all began with a good deed on the streets of London. That is why

the Scout Slogan reads ``Do a Good Turn Daily.''

I yield the floor.

Madam President, I rise, again, in opposition to the nomination of Patricia Smith to serve as the Solicitor of the Labor Department. As I noted on Monday, the Framers crafted a system of checks and balances to ensure that each government branch has a means to review the actions of other branches. In the Senate, one of those checks is our constitutional duty to provide advice and consent on executive branch nominations.

The leader earlier talked about the amount of time it takes for cloture on people. It does take quite a while, but it is part of the process. I can tell you, when there is a hearing on a person, if there are 270 questions to start with and the other people in a similar position have a couple dozen questions, you know there is a little bit of a problem that could develop with that one person, depending on how they answer or don't answer the questions.

This isn't something new. This isn't something that happened just this year. I was chairman of the HELP Committee for 2 years and then ranking member for 2 years. During that time, President Bush had an appointment as the FDA Commissioner that was stopped. We never even got him to the floor. We had an MSHA Director--I think it was the first MSHA Director--who worked in a mine. That was the mining safety person. We had a Surgeon General and others. Then the schedule was set up so there were no recesses so there couldn't be recess appointments. So this is an ongoing matter and both sides should take note of that and ask the person making the nominations to come up with reasonable nominations, not people who have an agenda already set out that will result in the kind of conflicts we have had on some of these nominations.

This advice and consent is a responsibility I take seriously. Nominees before the Senate must be qualified and present their credentials to us completely and honestly. Senators have an obligation to confirm nominees who possess the strength of character and experience required for a position of public trust. I rarely oppose Presidential nominees and to date have supported over 50 nominees reviewed in the HELP Committee since the President was inaugurated. I believe the President is ultimately responsible for the conduct of his administration, so he has a right to select his team, up to a point.

New York commissioner of labor Patricia Smith's long record of public service--which my colleagues in the majority have discussed in detail-- would ordinarily have made her a bipartisan choice to lead one of the most important offices in the U.S. Labor Department. Unfortunately, her misleading testimony to the HELP Committee has caused me to lose confidence in her nomination.

I spoke on Monday about the specific factual inconsistencies, and on Tuesday I discussed a number of other concerns about Ms. Smith's agency and a program she created and implemented in New York. I have also posted a 41-page report detailing my concerns with Ms. Smith's nomination on the HELP Committee Web site.

The report found that Ms. Smith misled the HELP Committee over the course of several months.

That report may be found at http://help.senate.gov/imo/media/doc/ 2010_02_011.pdf.

The majority acknowledges that there are factual inconsistencies between what Ms. Smith said before the HELP Committee and official documents from the State of New York. The suggestion that the rationale for these inconsistencies lies in the fact that Ms. Smith was busy running a large agency and cannot really be held accountable for this small program is simply not supported by the facts. Official documents show the following: Ms. Smith named the program. She personally met with the union organizer and community organizing advocates developing it with her subordinates in November 2008. She personally met with the five trade associations concerned about the program. She personally promoted the program in speeches, internally to her staff and to the media.

Ms. Smith was involved in close to 100 communications about the program, either being referenced or as a sender or recipient. Moreover, she admits her program was the topic of numerous personal discussions she had with the New York Governor's Office:

Beginning in the late fall of 2008, I also discussed the

pilot on numerous occasions with Jeff Mans, the Deputy

Secretary to the Governor for Labor and Financial Regulation.

I have no written notes from the conversations and can not

tell you on what days the discussions took place as I speak

with Mr. Mans at least three times a week and there was never

a conversation specifically devoted to the pilot. The purpose

of the conversations was to apprise him of the Labor

Department's ideas for the pilot and to get the approval of

the Governor's office. . . . I had a telephone conversation

with the Assistant Counsel David Weinstein of the Governor's

counsel's office, and Deputy Secretary Mans, on February 4th.

I answered questions about how the program operated.

I have heard the suggestion from the other side of the aisle that because the program does not appear illegal or immoral, Ms. Smith should get a pass for her factual inconsistencies. However, the question of whether Wage and Hour Watch was ethical or legal is irrelevant to whether Ms. Smith's testimony was inaccurate or misleading.

The majority also argues there was a possible breakdown between Ms. Smith and her deputy that caused the misleading testimony. Ms. Smith, however, has worked with her deputy for more than five years. Moreover, if confirmed, Ms. Smith would be in charge of legal compliance for a Department whose budget projects spending ten times what she oversees in New York--$104.5 billion in 2010. Leaving aside the extensive documentation showing she was heavily involved in this program, I ask my colleagues: why would we consider expanding her responsibility tenfold when she has been unable to oversee her subordinates effectively in New York?

In August, I noted my concerns to President Obama, and offered my assistance in ensuring a qualified replacement would be confirmed quickly. I also joined nine Republican HELP Committee members in urging Chairman Harkin to refrain from approving this nominee in committee and made the same offer of assistance in ensuring a qualified replacement is given a swift review and confirmation. I was forced to insist on a full debate on her nomination, which advanced on a party-line vote this past Monday.

It is clear that Ms. Smith's statements misled the committee. It is also apparent that each inconsistent statement in effect downplayed concerns held by Republican members. Most disturbing, however, is that her written committee responses suggest Ms. Smith knew her testimony was misleading as early as July 2009 but did not correct the problem until contacted by a. majority staff in September--more than 2 months later.

I strongly believe that confirming someone as a head legal officer for a Cabinet agency under these circumstances sends the wrong message to the American people and the career staff she will oversee. I am also particularly disappointed that such a controversial nominee is being forced through before newly elected Senator Scott Brown is sworn in. These sorts of actions may be part of the reason public confidence in Congress and the government is so low.

I urge my colleagues to oppose this nomination.

I yield the floor and reserve the remainder of my time.

Madam President, what is the time situation?

Madam President, this argument about using the filibuster-- I have to say that both sides have used the same cloture techniques. I think if you check with the Bush nominees, we usually withdrew those and put someone else in. Of course, that had something to do with the relative size of the majorities.

But the problem here is with how the program was run. We keep talking about whether it was legal. It probably was legal, but there are some things done there that I don't think the average person wants done to them. The Wage and Hour program was to recruit and train union organizers and public interest groups to go into businesses with compliance literature and interview employees to discover violations of the wage and hour law. It was expanded to include OSHA.

The State of New York gives participants materials to disseminate and official cards identifying them and their group as part of a program for when they enter businesses and speak with the employers and employees. As part of this process, union and community organizers were directed to gather personal telephone numbers, vehicle license plates and home addresses of business owners, as well as details about the employees working there. Labor organizers and community activists were allowed to use this information for their own organizing activities. State identification cards were provided to the individuals, but the State conducted no background check on those they trained and provided identification cards. Is that the kind of program we would expect Ms. Smith to federalize if she became a Solicitor?

A deep concern to me is how Ms. Smith described the decision not to conduct vetting or background checks for the Wage and Hour Watch participants who could collect this personal information. When questioned about it, she explained there is no formal vetting process for the New York State Department of Labor to partner with an entity. They did not consider the possibility of background checks on the groups, but ultimately rejected the idea after inquiring as to why the Neighborhood Watch groups were subjected to background checks. The department was informed that the groups participating in this more sensitive crime prevention partnership are not subject to a check. But there is a major difference in the way they work. The National Sheriff's Association Neighborhood Watch Program, unlike the Wage and Hour, is purely an observe and report program. Calling the police about suspicious activity in a public area is different than investigating the wages and hours of individual employees and recording their personal contact information.

So for these reasons, and the ones I have given on previous occasions, and that Senator Isakson has given and members of the committee have expressed, I urge my colleagues to oppose the nomination.

I yield the floor and the remainder of my time.

Mr. President, since we are technically under 30 hours of debate on the nomination of Patricia Smith to be Solicitor of Labor, I will rise in opposition to that nomination, as I did yesterday. I will elaborate a little on my concerns about the personal privacy violations in a program she created in 2009 called the Wage and Hour Watch.

The Wage and Hour Watch program recruits and trains union organizers and public interest groups to go into businesses with compliance literature and interview employees to discover violations of wage-and- hour law. The State of New York gives participants materials to disseminate and official cards identifying them and their group as being part of the program for when they enter businesses and speak with employers and employees.

As part of this process, union and community organizers were directed to gather personal telephone numbers, vehicle license plates, and home addresses of business owners, as well as details about the employees working there. These are people with 1 day's training and a special card from the government. Labor organizers and community activists were allowed to use this information for their own organizing activities.

State identification cards were provided to individuals from various unions and community organizing groups to investigate businesses--but the State conducted no background checks on those they trained and provided identification cards to. Is this the kind of program we could expect Ms. Smith to federalize if she is confirmed as Solicitor?

Another deep concern to me is how Ms. Smith described the decision not to conduct any vetting or background checks for Wage and Hour participants who could collect this personal information. When Ms. Smith was questioned about this by the HELP Committee last year, she explained that ``there is no formal vetting process for the New York State Department of Labor to partner with any entity. . . . The Department did consider the possibility of background checks on the groups but ultimately rejected that idea after inquiring as to whether Neighborhood Watch groups are subjected to background checks. The Department was informed that the groups participating in this more sensitive crime prevention partnership were not subject to a check.''

Ms. Smith explains the lack of a background check because the program is modeled after the National Sheriff Association's Neighborhood Watch program. However, unlike Wage and Hour Watch, Neighborhood Watch is purely an observe-and-report program. Calling the police about suspicious activity in a public area is different than investigating the wages and hours of individual employees and recording their personal contact information and investigating OSHA violations.

For all of these reasons, I have grave concerns about Ms. Smith's decision to allow those who may have criminal records or may not be legal residents of the United States to be trained and gather information under the auspices of New York State authority.

These instances reinforce the serious reservations I hold regarding Ms. Smith's judgment, competency, and ability to lead the Solicitor's Office. I urge my colleagues to oppose this nomination for those reasons.

I want to also elaborate on my concerns about her agency's treatment of small businesses.

Ms. Smith's Wage and Hour Watch program specifically targets small- and medium-size businesses, including, for example, supermarkets, laundromats, nail salons, for State-authorized investigations by unions and community groups. Five trade associations representing small- and medium-size businesses wrote to Ms. Smith to question her agency's decision to target them and launch her program without any input from them. To quote them:

The image painted by the Department of Labor in its January

26 release is of a posse of activists, duly deputized by the

weighty imprimatur of the Department, demanding access to any

employer in the state whom they have chosen either at random,

or by prejudice.

Notably, the program had been launched and in existence for 2 months before she met with the trade associations. The New York Post characterized the program as ``vigilante labor justice'' targeting small business.

In documents produced to the committee, we also find that there is a culture in the New York State Department of Labor where bureaucrats often feel little responsibility for treating business fairly. For example, when a reporter misquoted Ms. Smith's Deputy and protege, Terri Gerstein, she responded in an e-mail:

I never have said that any part of our job is to protect

employers against employees who abuse their rights. I have

been in this field for 15 years, and I have never said

anything like that. Employers have attorneys who can play

that role. All the workers have is us.

Small business doesn't just run out and hire attorneys, and they are not used to having people come in at random and flash cards and take a look at their business.

In announcing the Wage and Hour Watch program, Ms. Smith stated her opinion of the business community as follows:

And as the economy continues to reel, businesses find any

way they can to cut corners. Unfortunately, this is often at

the expense of the workers who keep them going. . . . The

future is now, it's here, and today the Labor Department

expands its field of battle.

I have found that whether it is employees or employers, there is probably about 1 to 1.5 percent that will do the wrong thing no matter what the law is. We have to set up mechanisms to make sure that doesn't happen and that people are properly treated. But to assume they are all going to cut corners and harm employees is the wrong approach. Moreover, according to internal e-mail, the program was designed for ``community enforcement'' and created by organized labor, allied public interest groups, and her Deputy without any consideration of small business.

There are also questions whether the State honors its commitments to business. Ms. Smith met with the trade associations concerned about Wage and Hour Watch in March 2009--2 months after it started--and personally committed to banning the pilot participants from promoting their individual organizations simultaneously with Wage and Hour Watch activities. The official documents received from New York, however, do not show this agreement was implemented and, in fact, appear to show the Department allowing the groups to continue these activities.

These instances reinforce the serious reservations I hold regarding Ms.

Smith's judgment, competency, and ability to lead the Solicitor's Office--more reasons I oppose her nomination.

Leaving aside the clear inaccuracies of her testimony to the Senate, you will recall that I spoke extensively on that yesterday, where she gave us testimony and then we gave her a chance in written questions to correct her testimony. She did not. So there are also concerns with Commissioner Smith's ability to be a fair arbitrator and enforcer of our Nation's labor laws. In every instance I am aware of, Ms. Smith has shown herself to be a trusted ally of organized labor and even allows them to participate heavily in the formulation of her agency's initiatives.

Indeed, the State of New York's official records show that two of the pilot groups for Wage and Hour Watch, a senior union organizer and a public interest entity financed in part by unions, were heavily involved in developing all aspects of the Wage and Hour Watch program, including participant eligibility, program documents, training, and press strategies.

One of the union's written work plans stated they were going to use Wage and Hour Watch in ``all of our organizing campaigns,'' including those outside their designated area.

Also, a food and commercial worker union's newsletter states plans to specifically investigate ``nonunion'' groceries as part of the Wage and Hour Watch.

The cochairman of the State's Wage and Hour Watch program is the president of a union.

Several program expansion applicants have as their sole purpose union organizing.

State officials also planned to ensure upstate trade unions would be eligible.

Documents also show the New York Labor Department allows unions to participate in the wage-and-hour law investigations, including interviews of workers with potential claims.

Ms. Smith's interaction with some of the organized labor allied groups goes back to when she headed the labor bureau for then-New York State Attorney General Elliott Spitzer. Records show these same groups teaming up to coerce neutrality agreements and organize business.

With the Wage and Hour Watch program, union organizers now had official State identification cards they could use to enter any business in New York--possibly allowing them to avoid nonsolicitation laws or policies--to gather information on employers and employees. The unions were allowed to contact employees or employers at their homes or at the business as part of ``community organizing.''

Ms. Smith twice also attempted to alter a longstanding legal position to restrict charter schools for the benefit of organized labor--once while in the Attorney General's Office in 2007 and again when she became Commissioner of Labor. In both instances she was reversed by a court.

Commissioner Smith also maintains a senior executive for outreach solely to organized labor--currently staffed by someone who worked for 23 years for the AFL-CIO in organizing and with the SEIU. Notably, there is no such equivalent role for outreach to small business or nonunion employees.

While I appreciate that organized labor is an important stakeholder in New York, this record of favoritism, including allowing union organizers to participate in State labor law enforcement, strikes me as clearly inappropriate. Indeed, I cannot imagine how my colleagues would react if a Republican nominee in a future administration deputized trade associations to investigate or enforce laws with regard to unions.

As you can tell, I have grave concerns about this nominee because of these actions. But having also learned that she misled the Senate, and then didn't correct her answers when she got the chance, I cannot support her. I urge my colleagues to oppose Ms. Smith.

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