Floor Statements

Mr. President, I rise today to discuss the debacle that is the so-called Affordable Care Act. I don't think there is anyone in this Chamber, Republican or Democrat, who would dispute that thus far the implementation of this law has been a disaster, particularly with regard to the healthcare.gov Web site and the President's promise that ``if you like your health care plan, you can keep it.''

The administration has admitted that it bungled the rollout and has tried to cover up for what PolitiFact dubbed ``the lie of the year,'' by passing the buck to States and insurers as to whether individuals would be able to keep their plans for the next year.

Let's be clear about this. ObamaCare's problems are deeply rooted in its DNA, and they are far larger, far bigger than just a Web site. Is the Web site causing the cost of health insurance premiums to go up dramatically? Is the Web site causing businesses to force more and more employees to work part-time? Is the Web site sending out cancellation notices to patients and consumers, telling them that their health care plans are no longer available? Of course not. Yet as the functionality of the Web site continues to improve, the administration is starting to talk as if every problem with the law has been fixed and that all the other issues are going to simply dissolve.

We know that is not the case. In reality the problems with ObamaCare are only beginning. I would like to take a few minutes to discuss some of the problems we are going to be seeing in the future as the President's health law continues to be implemented. I have to say that when it comes to ObamaCare, it is a little difficult to make predictions. That is because the administration has gone to great lengths to muddy the waters with delayed deadlines and unilateral policy changes. However, I think we can look through the opaque waters and identify at least six general areas where we can expect to see major problems in the coming months. These are six areas among many, but theses are six I want to talk about today.

No. 1, we are going to continue to see problems with the implementation of ObamaCare. Like I said, there have undoubtedly been improvements to the Web site. They should be able to resolve that problem. It is a technical problem. It is a shame it was not resolved to begin with. It is a shame that enough time wasn't given to resolve it, but there still are issues that are far from resolved besides that.

Let's just look at the enrollment in the exchanges to see how things are going. As of November 30, roughly 365,000 individuals enrolled in health insurance coverage through the State and Federal exchanges. That is a small improvement from the numbers that we saw at the end of October but still far short of the benchmarks that the Department of Health and Human Services had set for enrollment in the exchanges. Originally, HHS touted a goal of enrolling 7 million people in the exchanges by March of 2014. According to a memo obtained by the Associated press, HHS projected that on the way to reaching that goal of 7 million enrollees, they would enroll roughly half a million people in the first month. Yet after 2 months they were still more than 100,000 people short of that one-month benchmark, which is not a high benchmark in my opinion.

The same memo projected that they would have 3.3 million enrollees by the end of 2013. Yet, if they are going to reach that goal, they will have to enroll nearly 10 times as many people as they have enrolled so far in just the next week and a half.

Sure, many of these enrollment problems are due to a poorly designed and poorly executed Web site, but even with the Web site's improvements, it would take a substantial miracle for the administration to meet its enrollment goals for the coming months.

There are other significant problems to be concerned about, most notably those associated with the premium subsidy program administered by the IRS.

Earlier this month the Treasury Inspector General for Tax Administration issued a report that found that the IRS has an inadequate system in place for preventing fraudulent premium subsidy payments from occurring and that people's personal information will likely be at risk. That is the Inspector General for Tax Administration. That is not Republicans. There are real questions as to whether the IRS can effectively verify the income of those applying for these subsidies. I have also raised the concern on a number of occasions.

Similar tax subsidy programs, including, for example, the Earned Income Tax Credit, EITC, that are paid out before they are verified, have improper payment rates as high as 25 percent. Think of that.

If we see the same improper payment rate on these ObamaCare subsidies as we do on the EITC, it will end up costing taxpayers hundreds of billions of dollars over the next 10 years. As I have said in the past, the ObamaCare premium subsidies with the lack of security and safeguards are a fraudster's dream. We have warned the administration, and I personally warned the administration.

The administration may claim that with the recent improvement to the healthcare.gov Web site all is now right with the world. However, as you can see, there are a number of administrative problems that, even with a functional Web site, have yet to be resolved.

No. 2, Americans will be left without coverage due to the problems with ObamaCare. As a result of the dismal rollout of ObamaCare, many Americans, particularly those who have tried to enroll in the exchanges, could very well end up being uninsured for a time. Maybe a significant time.

Last week an article appeared in the Washington Post that told the stories of people had were forced out of their existing health plans due to ObamaCare's coverage mandates but are unable to sign up for the new plans on the exchange due to the failings of the Web site. The deadline for signing up for coverage that starts on January 1, 2014, is December 23, 2013. Anyone who has been kicked off their plan who is unable to sign up before that date, which is just a few days away, will find themselves facing a gap in medical coverage.

For the chronically ill or for people with expensive medical conditions, this gap in coverage will be particularly acute. These people are, according to the Washington Post, ``ObamaCare's biggest losers.'' Yet, ostensibly, these are the very people that this law was enacted for and supposed to help.

Another reason countless Americans may end up seeing gaps in coverage is simply because they will be unable to navigate the ever-changing landscape that is ObamaCare's dates and deadlines. Due to the failures of the rollout, the administration has delayed or shifted virtually every deadline associated with obtaining and paying for coverage. For example, like I said, the deadline for enrolling in insurance coverage that starts on January 1 is December 23, just a few days away. The deadline for actually getting the first premium payment to insurers is December 31. Both of these dates have been moved at least once already and could be moved again. They probably will be. On top of that, the administration has issued statements ``encouraging'' insurers to extend their own deadlines for payment and enrollment.

This is on top of the delays in the employer mandate, the SHOP exchanges, and the countless other provisions we have seen delayed or extended over the past year.

People are bound to be confused by all of these changes. It is nearly impossible for anyone, let alone those with serious medical conditions, to keep track of the ever-changing deadlines the administration keeps issuing. With no clarity as to when people should sign up and who they should pay and when, it is a virtual certainty that many consumers will find themselves uncovered for a period of time through no fault of their own.

The administration added to all of this uncertainty last night with the announcement it was going to allow people with canceled insurance plans to either buy catastrophic plans or avoid the requirement that they buy health insurance altogether. It has been less than a full day, and already this decision is causing confusion among insurers. It will almost certainly do the same for consumers.

It seems the Obama administration is making all of this up as they go along. Undoubtedly, many people will suffer the consequences of this ineptitude. The administration should be ashamed of the way this is bollixed up and messed up, and it is just going to get worse.

No. 3, there will continue to be spikes in premiums and other costs. We have already seen what is happening to the price of insurance in the individual market. Thanks to ObamaCare, millions of people have already lost their existing health insurance and have found that their options on the exchanges come with much higher premiums. This sticker shock has been widely reported. But that is not the end of the crisis problem.

Unfortunately, many people are also finding that their out-of-pocket costs will be dramatically increased thanks to higher copayments and prescription drug costs, included in plans on the exchanges. In many cases, it is difficult for patients to determine which medications are covered on the ObamaCare plans.

Unlike in Medicare Part D, the ObamaCare Web site does not have a plan finder that would enable consumers to search for plans based on coverage. These new costs are particularly high when compared with the insurance plans that were recently canceled.

But it is not just happening in the individual market. These price spikes are also hitting people with employer-provided insurance. According to a recent poll by the Associated Press, nearly half of Americans with job-based or other private insurance say their policies will be changing next year, mostly for the worse. So 69 percent say that the cost of their insurance will be going up; 59 percent say their annual deductibles or copayments are increasing. The Affordable Care Act did little to reign in the actual cost of health care.

When you add in the costs associated with the law's mandates and regulations, costs are going up, particularly for small businesses, our main job creators.

A recent survey of small business owners by the National Federation of Independent Business confirmed that this is already starting to happen. In the survey, 64 percent of small businesses reported that they paid more for employee health insurance premiums in 2013 than they did in 2012. Small business owners consistently cite the rising cost of health care as their top business concern.

This brings us to the next obvious prediction, No. 4. Millions of people will lose their existing employer-provided health insurance. Once again, we are all too familiar with President Obama's infamous promise, ``If you like your health care plan, you can keep it,'' but little has been said about the threats ObamaCare's mandates pose to people who get their health insurance from their employers.

Put simply, the health law was designed specifically to invalidate existing health care plans--those deemed inadequate by the drafters of the law--in order to force people into more expensive plans with expanded coverage they don't necessarily want or need. This applies to both individual market plans and employer-provided plans alike. The administration's own estimates, published in the Federal Register, predicted that tens of millions of Americans with employer-sponsored-- keep in mind, employer-sponsored--insurance will see their plans invalidated by the

so-called Affordable Care Act's mandates and regulations.

According to a recent analysis by the American Enterprise Institute, as many as 50 to 100 million insurance policies in the employer- provided insurance market will see their plans canceled next fall when all business plans must be fully compliant with ObamaCare's insurance mandates. At that point businesses will have to face a difficult choice: Offer a more expensive health care plan to their employees or send employees into the exchanges. As we have already seen, that is not a great place to be.

No. 5, health insurers will either leave the market or face bankruptcy. One of the foundational assumptions made by the drafters of the Affordable Care Act was that the costs to insurers of providing vastly expanded coverage would be offset when more young and healthy patients are brought into the risk pools. Indeed, this is almost the entire basis for the individual mandate. The problem is that so far this doesn't seem to be happening, and I doubt it ever will. There is good reason to question whether it ever will. With the ever-increasing cost of insurance as a direct result of ObamaCare, there will likely be many who opt to stay out of the market altogether.

There is ample data right now to support this conclusion. For example, in a poll released earlier this month from the Harvard Institute of Politics, those in the millennial generation--the very people whom proponents of ObamaCare desperately need to add to the insurance pool--were shown to be highly skeptical of the law. In the poll, a majority of 18- to 29-year-olds disapproved of the Affordable Care Act and said it will increase their personal health care costs. Only 18 percent of respondents in that age group said they thought the law would improve their health care.

Clearly, the authors of ObamaCare thought that the individual mandate, along with the strong sense of civic duty, would coerce people into acting against their own interests and paying expanded costs for coverage they don't necessarily want or need; however, in the real world where people weigh costs and benefits before making a decision, millions of people are more likely to pay a fine instead of entering a skewed and unstable insurance market where costs are forever going up. A lot of these young people will not even pay the fine because there is no penalty for not doing so.

Without a greatly expanded risk pool of younger and healthier consumers, it is not going to be worth it for many insurers to stay in the market. Those insurers who do stay and try to stick it out will do so at greater risk to their financial future.

Insurers are not the only ones facing a dismal economic outlook as a result of ObamaCare, which brings me to my final prediction. Remember, I am just limiting it to six today. I will have more later.

No. 6, ObamaCare will continue to be a drag on business and our overall economy. It isn't just patients and consumers who are suffering under ObamaCare; employers are also facing difficulties as a direct result of ObamaCare. As I have discussed here on the floor at length in anticipation of the employer mandate, businesses all across the country have either reduced employment or have stopped hiring. Workers who had full-time jobs before the passage of ObamaCare are finding themselves moved into part-time work because under the law employers will be forced to provide coverage for full-time workers.

Even the unions, which were among the largest and biggest supporters of the health law when it was being debated in Congress, have come out and said the law is destroying the 40-hour workweek for American workers.

Last week the National Association of Manufacturers released its quarterly survey of its members which showed overwhelmingly that the President's health care law is having a negative impact on the manufacturing sector. According to that survey, more than 20 percent of manufacturers have cut or decelerated their business investment as a result of ObamaCare. Nearly one-quarter of them have either reduced employment or ceased hiring. Roughly one-third of them say they have reduced their business outlook for 2014 as a result of the so-called Affordable Care Act. And more than 77 percent--nearly 8 in 10--of manufacturers cited rising health insurance costs as a primary business challenge.

In other words, at a time when our economy is growing at a sluggish pace and job growth remains lackluster, the President and Democrats in Congress continue to support a health care law that is making America a much more difficult place to do business and to find and keep a job. It is only going to get worse as this wears on. These are just some of the problems we are going to see in the coming months as a direct result of ObamaCare, and they are not going to go away so long as the Affordable Care Act remains in place.

As I see it, with 2013 coming to a close, the President and his allies here in Congress are at a crossroads. As I see it, they have two choices: They can continue to double down on the same failed policy that is increasing the cost of health insurance in this country and causing millions of people to lose their existing coverage and will continue to wreak havoc well into the future or they can, for once, try to work with Republicans on replacing this failure with something that has a real chance of success. I hope that eventually my colleagues will choose the latter, but needless to say I don't think I can keep my hopes up.

Last but not least, I hope this is not leading to a throwing of the hands in the air, admitting this doesn't work, and then saying we have to go to socialized medicine, or what many call a single-payer system. If we do that, I have to tell you, we will never get out from under this mess.

We had a system that was working pretty well. There were up to 30 million people who did not have coverage. Why didn't we just concentrate governmentally on helping the 30 million people rather than doing this colossally bad bill that we are all going to rue the day we did? I am so concerned about it.

There are ways we can work together. I really believe we have to find some folks on the other side of the aisle who really understand this and who really understand that they are getting killed by this bill. Hopefully, we can find some folks who will sit down and work with people like myself. I have been instrumental in an awful lot of health care legislation over the last 37 years. Hopefully, we can work together in order to get this terrible problem resolved. I am concerned about it.

Health care should never have been a partisan issue, and in this case it is a totally partisan issue. Every Democrat in the House and Senate voted for it. Not a single Republican in the House or Senate voted for it. We all voted against it, knowing in advance that it would be a disaster. Frankly, I would like to get rid of the disaster, and I hope we can find some colleagues on the other side who will be willing to work to do that.

I hope the President will wake up. I think he thinks he is going to double down and fight for this, when, in fact, it is killing his reputation and the Democratic Party's reputation as well.

We clearly can't keep going the way we are.

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

I wish to briefly comment on the absurdity of what just transpired on the Senate floor. My friends on the other side have been the longest serving majority since 1980. We are enduring, some would say, the 7th consecutive year of their majority. Yet if someone were to take a close look at the strategy and tactics of the Senate Democratic leadership, they would think the roles were reversed.

Democrats are the majority. They have even enhanced their majority by breaking the rules of the Senate to give themselves more power. Indeed, they have not been a bit reluctant to overreach.

Part and parcel of having a majority in the Senate is control over the Senate's schedule and committees. Yet still we see what we saw today from my friends on the other side of the aisle.

Under the Senate rules, tax policy matters, including the tax extenders, are referred to the Senate Finance Committee. Trade adjustment assistance, which was also included in this bill, also falls under the jurisdiction of the Finance Committee.

The Finance Committee processed tax extenders in a bipartisan fashion last year and that legislation was eventually enacted into law. The committee has also been able, though without as much bipartisan support, to deal with the TAA in the recent past.

Yet now what do my friends want to do? They want to ignore the Senate rules, the expertise and proper role of the Finance Committee, and pass a complicated set of policies on the floor without discussion or debate. With regard to tax extenders, Finance Committee staff from both parties have, in only the past few days, started the process of developing tax extenders legislation.

To put it bluntly, the majority leader's partisan actions today make a sham of that deliberative, methodical, and constructive bipartisan effort.

Why are they afraid of going through regular order? They are the majority. Including my friend, the chairman, there are 13 Democrats on the Finance Committee and only 11 Republicans.

What are they afraid of? Don't they set the committee agenda? Don't they have the votes?

Political stunts, such as unanimous consent requests that are designed only to draw objections from the other side, may be good political fun for the proponents, they might even provide some good campaign fodder, but they don't solve any problems.

It is amazing to see this kind of activity from the Senate majority party when it controls the agenda both on the floor and in the committees. We might expect these kinds of actions from a frustrated minority party that feels shut out of its role in committees and on the floor, but here we have a role reversal.

I am currently a member of the minority party in the Senate, defending regular order, Senate customs, and the role of the committee system. I will reiterate my challenge to my friends in the Senate Democratic leadership: Why are you so afraid of regular order? Why not process this legislation in a careful, methodical, and transparent manner?

Being in the majority means being accountable. Today my friends on the other side of the aisle tried, once again, to avoid accountability in order to blame their own failings on Republicans. As the saying goes: That dog just won't hunt.

I yield the floor.

The distinguished minority leader expresses it very well. I am appalled. I have only been here 37 years, but I have never seen the rules violated as they have been--frankly, violated in a way that is destructive to the Senate, not helpful or constructive to the Senate. This is just another illustration. Our side is getting very sick of it.

Mr. President, I have decided to support the budget agreement, though it is by no means the budget solution that I would have written and it contains some imperfections.

Following up on earlier remarks today in a colloquy on the Senate floor by my colleagues from Florida, Pennsylvania, and the Senate Budget Committee Chair, Senator Murray, I wish to provide some instructive remarks about the Death Master File provision of the budget agreement. The Death Master File is a data set compiled by the Social Security Administration, and made available to various researchers and business interests through the Commerce Department. Many researchers, genealogists, and businesses use the data for bona fide reasons including fraud prevention, ancestry research, identifying remains of deceased individuals, retirement plan administration and prevention of improper payments. As long as they can show the Commerce Department that they have rigorous privacy protections and protocols put in place, they should be able to become certified by Commerce to have access to the Death Master File data.

I concur with what much of what my colleagues have said in their recent colloquy about the Death Master File provision of the budget agreement. Specifically, I wish to reiterate the need for balance in the regulatory process and in the rulemaking procedures that the Commerce Department is called upon in the budget legislation to undertake. We need a robust rulemaking process, where all interested parties are afforded the time and opportunity to adequately express their interests. And, importantly, we need to ensure that during that process, there will be access to Death Master File data for bona fide purposes, including fraud prevention, identifying remains of deceased individuals, forensic and other genealogical research, prevention of improper payments, and assurance of proper payments.

As the budget agreement is currently written, there appears to be some confusion and ambiguity concerning implementation of the regulatory process and rulemaking procedures that the Commerce Department is to undertake and whether access to data in the interim, when rules are being promulgated and aired, will be assured. I must say that a more robust and inclusive process for arriving at the Death Master File provision of the budget agreement could have eliminated the confusion and ambiguity that has arisen. The Finance Committee, of which I am the Ranking Member, has jurisdiction over the manner in which the Social Security Administration governs Death Master File data, and the Finance Committee has expertise that could have been called upon. Unfortunately, that was not the case, as the Death Master File provision of the budget agreement was not processed through regular order with adequate Finance Committee input.

Mr. President, it is becoming far too common for important legislation to bypass committees of jurisdiction and for it to be written by legislators who do not necessarily have the depth of knowledge and expertise necessary to avoid writing laws that either do not work or contain glitches, ambiguities, and confusing language. In my opinion, we need to return to regular order where committees of jurisdiction are the places where issues in their jurisdiction are debated, processed, and agreed upon in a bipartisan fashion. Certainly, committees of jurisdiction must be consulted when others decide to write legislation that involves issues that lie squarely within their jurisdictions. That will be the surest route to preventing a reoccurrence of the ambiguity and confusion that has, unfortunately, arisen from the Death Master File provision of the budget agreement.

I yield the floor.

Mr. President, I thank the Senator from Vermont and the Senator from Washington for providing clarification on this issue. I am happy to hear that the legislative intent of the budget deal is to continue the use of the not-for-profit student loan servicers and that they will be permitted to compete in the future for additional accounts.

The diagnostics sector spans thousands of different kinds of tests, from blood tests for cholesterol to new genetic tests that identify cancer variants and match patients to the most appropriate drugs. Diagnostic tests facilitate evidence-based medicine, improve quality of care, promote wellness, enable early detection of disease and often reduce overall health care costs.

In short, diagnostics play a critical role in the health care system and are an essential part of quality patient care. While these tests account for only about 2 percent of health care spending, they influence the large majority of the health care decisions made each and every day.

During Mr. Forlenza's tenure as chairman, AdvaMedDx doubled the size of its membership and established itself as a credible voice on health care policy in Washington and around the world. Under Mr. Forlenza's leadership, the diagnostic industry has worked with a range of stakeholders to pursue initiatives that aim to reform and modernize the diagnostics regulatory and payment environment in order to keep pace with innovation and the changing health care landscape. AdvaMedDx works not only with Members of Congress and key public health agencies but also with organizations ranging from patient advocacy groups to cancer research societies to the World Health Organization.

AdvaMedDx also has established itself as a global leader, driving collaboration with allied associations in Europe, Canada, Brazil, Japan, and Australia.

Congratulations to Vince on his accomplishments during his tenure as AdvaMedDx chairman, and best wishes to AdvaMedDx for many future successes.

Mr. President, I have certainly enjoyed the remarks of the distinguished Senator from North Dakota. He has done a terrific job in the Senate and made a real difference, and I personally appreciate it very much.

We all know we are here for one basic reason: I believe our friends on the other side believe that by creating this kind of a fuss and problem, they can get off of the issue of ObamaCare, which is a disaster, and everybody knows it, including them.

The fact is that I think they have gone from one extreme debacle to another in their desecration of this body by getting rid of a rule that is absolutely critical to this body--a rule of protection to the minority.

I can hardly wait for those on the other side of the aisle, who have never been in the minority, to get in the minority and realize what they have done is basically destroyed the thing which has made the Senate the greatest deliberative body in the world.

The cloture rule--rule XXII--was put in place to allow the majority to end filibusters. In the early part of the last century they couldn't get anything done, so they came up with rule XXII so they could invoke cloture, end the debate, and get back to whatever the Senate decided was the appropriate business. It has worked amazingly well and it would continue to work amazingly well, except for the fact that our colleagues on the other side have made the Senate no better than the House of Representatives.

The Senate was always supposed to be different from the House of Representatives. It was supposed to be the body that would be more deliberative. It was Washington who said to Jefferson that the Senate is the saucer which cools the tea. They were right. The Senate is the saucer which should cool the tea. It should cool debates around here. But now it is just whatever the majority wants, and they vote in unison. They vote in unison because they are supported in unison by a number of very well-heeled groups, especially including the unions, which Democrats are basically afraid of crossing. It is a pitiful shame.

I would like to chat just a little bit about this filibuster because it is a time-honored instrument which both sides have used. But I think there have been gross misrepresentations of what the filibuster is by the leadership of the other side, and these gross misrepresentations should never have been spoken on the floor. I don't know how they keep a straight face when they do it.

On November 21, 2013, the majority used a premeditative parliamentary gimmick to change more than two centuries of Senate confirmation practice. As a result, for the first time since 1806, the minority cannot extend debate on any nominations except for those that go to the Supreme Court. Democrats accomplished this on a purely party-line vote and by a maneuver designed to avoid scrutiny.

It would be hard to imagine a crisis so grave, a conflict so intractable that the only option was to fundamentally alter the very nature of this institution and further politicize the very confirmation process. I am here to say that the crisis the majority said could only be solved that way never existed.

The majority leader claimed on November 21 that this crisis was, as he put it, caused by ``unprecedented obstruction'' of nominations to both the judicial and the executive branches.

More specifically, he said there had been 163 filibusters of judicial and executive branch nominations, half of them during the Obama administration.

By the way, that is totally false and they know it. I don't know how they can stand on the floor and make these bald-faced assertions.

The only solution to the problem, the leader said, was simply to ban nomination filibusters.

I notice the majority leader made no attempt to either define the filibusters he was counting or to identify the nominations on his filibuster list. That was an odd omission because doing so would surely have proved his point. Wouldn't it? No.

There was a very good reason the majority leader simply threw out a big number and did identify the filibusters he claimed justified rigging the confirmation process. If he had simply listed those filibusters, we all would have seen dozens and dozens of nominations the Senate had confirmed, many without opposition at all.

Since I took my first oath of office on January 3, 1977, the Senate has confirmed more than 1,700 nominations to the U.S. district courts, the U.S. courts of appeal, and the U.S. Supreme Court, and they have defeated two--two--in all of that time the last 37 years. We confirmed 78 percent by unanimous consent without any rollcall vote at all. Two- thirds of the rollcall votes we did take were unanimous. Think about that. Where is the problem?

No President gets every single appointment he or she wants, but every President gets the vast majority.

During his first term, for example, President Obama was 30 percent behind his predecessor in nominations. They were sloppy in putting forth nominations. But he ended up only 10 percent behind in confirmations. That could only mean the Senate handled his judicial nominations efficiently.

During his second term, so far the Senate has confirmed more than twice--twice--as many judicial nominees as it had by this point in President Bush's second term.

The Congressional Research Service says the Senate is confirming President Obama's appeals court nominees faster than the Senate confirmed President Bush's. In fact, President Obama has already appointed one-quarter of the entire Federal judiciary.

I can also comment on how executive branch nominations referred to the Finance Committee have been handled. Nearly 80 percent of the nominations sent to the committee during the 112th Congress have so far been confirmed.

Looking at executive branch filibusters overall, the same Democratic leaders who last month voted to abolish nomination filibusters voted to filibuster President Bush's nominees to be Assistant Secretary of Defense and EPA Administrators and twice voted to filibuster his nominees to be a U.N. Ambassador.

They must have thought very differently back then about whether the President deserves his team. We have heard a lot about that from current Democrats. Their actions then spoke more loudly than their words do today about whether they think all nominees do deserve an up- or-down vote. Look at the past. Look at what they have done. It is hypocritical.

However, the majority will not acknowledge those facts and others like them because those facts do not fit the spin they are putting on this.

It is hard, after all, to claim an obstruction crisis when so many nominees are confirmed and are being confirmed. So the majority instead makes a claim about what they call filibusters because that sounds bad to most people, and most people will not know whether the claim is even true. Calling something a filibuster does not make it so.

A filibuster occurs when the Senate cannot vote on passage of legislation or confirmation of a nomination because an attempt to end debate on it fails. That is why filibuster reform always focuses on making it easier to end debate.

The filibuster rule XXII came about after the turn of the last century because they couldn't get anything done in the Senate and they needed a way of bringing things to cloture so they could vote. We are headed into the same kind of disaster without this important rule.

It takes two steps to detect a filibuster--a cloture motion and a cloture

vote. You can't have a filibuster without both. As we can see, a vast majority of what our leader has claimed are filibusters are not because they haven't had a cloture vote.

A cloture motion is a request to end debate and a cloture vote answers that request. A filibuster occurs when a cloture vote fails and debate cannot be ended. That is the definition of a filibuster.

Some people listening to this might already be wondering whether these details matter, whether the difference between a cloture motion and a cloture vote or the definition of a filibuster are all that important after all. I am here today to say these details do matter because the truth matters.

The truth matters when Senators claim there is a crisis that needs a solution when there isn't.

The truth matters when the majority prohibits the very tool they used so successfully in the past against Republican nominees.

The truth matters when the entire confirmation process is going to be rigged and the judiciary further politicized--such as the DC Circuit Court of Appeals.

I have been on the Judiciary Committee 37 years. I chaired that committee. I was ranking on that committee. I can tell you never in the history of that committee has it been so brazenly ignored.

The truth matters because the American people need to know what their Senators are doing.

The truth was in short supply on November 21. The majority leader claimed 168 filibusters, but he was not counting filibusters at all. The majority leader was counting cloture motions, not filibusters. He had the habit of calling up a bill and almost immediately filing cloture as though there was a filibuster, when nobody intended to filibuster. Then, in prior years, he would fill the parliamentary tree so in the greatest deliberative body in the world we could not have amendments. The minority could not have amendments.

There is a time to fill the tree, but it is only after there has been a full and fair debate and amendments have had their opportunity to be brought forward. They do it to cut off amendments--unless the majority leader approved of whatever the amendments were.

I think it is nice to protect your fellow Senators on the majority side with legitimate ways of doing it, but this isn't one of them. That alone is causing a lot of discontent on our side because the majority leader was counting cloture motions, not filibusters, and claiming they were filibusters when they weren't. He was counting requests to end debate, not the answers to those requests.

Most people probably do not know that the majority leader files nearly all cloture motions--as he did just a few days ago--by adding 10 more to the list. So if the majority leader claims there are too many cloture motions filed on nominations, he has only himself to blame.

Under President Obama, half of the cloture motions filed on nominations do not result in a cloture vote at all. The rest just vanish into thin air, obviously, because they never should have been filed in the first place. Yet that is a scheme used by the other side, and then they claim this side is being obstructionists.

Two-thirds of the cloture votes that do occur on nominations pass. There has been no discussion of that by the other side. Two-thirds of them pass, preventing filibusters altogether.

Here is the filibuster fraud: The majority leader has been using the cloture rule more effectively than in the past--or should I say more obnoxiously than in the past--to prevent filibusters of President Obama's nominations while telling us about unprecedented obstruction. The truth is exactly the opposite of what he has claimed and what other Democrats on the other side of the aisle have claimed.

Perhaps the most astounding fact of all is that nearly 90 percent of Obama nominees to the executive or the judicial branch on whom cloture motions were filed have been confirmed. The majority told us that this was about obstruction, about how the minority was using the filibuster to prevent President Obama from appointing people. It is no wonder that the majority leader did not show the list of the nominations he claims have been filibustered. The claims are a fraud.

The majority created this crisis and damaged this institution by claiming that ending debate is really a filibuster and that confirming nominations is really obstructing them. Up is down, left is right, and confirmations are filibusters.

All of this is more than a little ironic since the Democrats were the ones who pioneered using the filibuster to defeat majority-supported judicial nominees. The first judicial nominee with clear majority support to be defeated by a filibuster was Miguel Estrada in 2003, one of the finest lawyers in the country. They didn't want him on the DC Circuit Court of Appeals because they knew getting on that court is a fast track to the U.S. Supreme Court. In fact, Democrats were so intent on keeping him off the DC Circuit that they filibustered Miguel Estrada, this Latino man, seven times--a record that stands to this day. I know. I was there. I was fighting for Miguel Estrada, as were all Republicans.

As of November 21, when the majority said there was an unprecedented filibuster crisis, there had been 12 cloture votes on Obama judicial nominations and 6 of them had failed. In other words, there was no obstruction. At that same point in the Bush administration, there had been 26 cloture votes on judicial nominations, and 20 of them had failed. Democrats used the filibuster to defeat Republican nominees to the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit.

Three-quarters of all votes for judicial nomination filibusters in American history have been cast by Democrats, and they have the gall to stand on this floor and suggest that Republicans are using the filibuster to stop nominees.

The majority leader alone--at least before complaining of too many filibusters--voted no less than 26 times to filibuster Republican judicial nominees. As I said, the same Democratic leaders abolishing nomination filibusters today voted to filibuster President Bush's nominees to be Assistant Secretary of Defense and EPA Administrator and twice voted to filibuster his nominee to be United Nations Ambassador. I do not know what the majority understands the word ``unprecedented'' to mean, but this certainly is not it. This is why the truth matters.

As of November 21, when the majority leader claimed that there had been 168 nominations filibusters, only 56 cloture votes on executive or judicial nominations had ever failed and only 17 of those filibustered nominees had not been confirmed. The crisis that the majority claimed turns out to be a myth, a tale for the fiction section of the library. This is why the truth matters.

Let's not forget what the majority did on November 21. Rule XXII, the one that provides a way to end debate, is a written rule, a time- honored rule. It says what it says, and it says that ending debate on any matter before the Senate, with the exception of rules changes, requires three-fifths of all Senators. It said that on November 21, and it says that today. The technical term for what the majority leader did that day was to raise a point of order, but in practical terms, the majority leader asked the Presiding Officer to say that three-fifths actually means a majority vote. He might just as well have asked the Presiding Officer to say that Christmas is on December 29 or that the Nation's Capital is in Salt Lake City, UT. The Presiding Officer stated the obvious, that three-fifths means three-fifths, because that is what the rule says. That is what the Presiding Officer, advised by the Parliamentarian of the Senate, said--three fifths means what it says: three-fifths. That is what the rule says.

By a purely party-line vote, the majority said otherwise--that three- fifths is actually a majority--by overruling their own colleague in the Chair. This sounds absurd because it is. Now we are forced to act as if we cannot read, to suspend the most basic ability to understand the English language and set aside our common sense. We are forced to pretend that the rules of this body say what they do not mean and mean what they do not say. This, frankly, reminds me of ``The Wizard of Oz,'' where Dorothy and her friends were before the image of what they thought was the great and powerful Oz. Her dog Toto pulls on the curtain to reveal a

little man frantically operating dials and buttons and speaking into a microphone. The image commands: ``Pay no attention to that man behind the curtain.''

On November 21 the majority told each of us to pay no attention to the three-fifths in the cloture rule. That was quite a trick. The real question was why the majority would concoct such a fraud in order to rig the confirmation process. What could be so important that the majority would go through such contortions, peddle such myths, and play such word games? It certainly was not to solve a filibuster crisis, that is for sure. No, it was for a much more base political reason.

The President and the majority here in the Senate deliberately set up this political confrontation in order to implement a political agenda that could not get through Congress. That agenda requires actions and decisions by the two groups of Federal officials who are not directly accountable to the American people: bureaucrats in the executive branch and judges in the judicial branch.

The President appoints those two categories of officials but only with the consent of the Senate. For more than 200 years the process of deciding whether to give that consent included the right of the minority to slow things down and, yes, even block the most controversial nominees.

I have given you the numbers. Only 17 executive or judicial nominees who were filibustered were not eventually confirmed. But the majority wants it all. They want a clear path to stacking the executive branch with officials who will issue the rules and stacking the judicial branch with judges who will approve those rules.

The DC Circuit Court of Appeals is a perfect illustration of where much of the regulations are evaluated by the courts, and they want them decided in favor of President Obama. They want the courts to legislate from the bench that which they could never get through the Senate or the House of Representatives. This is a power grab--nothing more, nothing less. It appears that the ends justified the means, that short- term political gains justified long-term institutional damage.

I urge my colleagues, from the freshmen to the senior Members, to take some guidance from our own predecessors. Senator Mike Mansfield, a leading Democrat, majority leader in the Senate, had served in the minority and later became majority leader. In 1975, when Senators also proposed forcing a rules change by simple majority, he said that this tactic would ``destroy the very uniqueness of this body . . . and diminish the Senate as an institution of this Government.'' It would, he said, ``alter the concept of the Senate so drastically that I cannot under any circumstances find any justification for it.'' That was the Democratic leader in the Senate, a man of unquestionable integrity.

As I have explained here today, the majority has certainly not provided any justification for doing away with the filibuster rule either. There is no filibuster crisis. I think I have made that case. There is only a desire by the majority to win every time, to have everything they want when and how they want it. Most of the executive and judicial branch nominations the majority claims were filibustered were actually confirmed. Even in this town, known famously for masterful spin, that will surely go down as legendary. The majority abolished nomination filibusters by claiming nominations that were confirmed were actually obstructed--when they were confirmed. This amounts to filibuster fraud. That is why we are here today, because the truth matters. The integrity of the Senate matters.

I can only hope there is time for those two concepts to still prevail. What the Democrats have done here is not only extremely dangerous, it is outrageous. They have taken one of the things that really make the Senate the great body that it is and have desecrated it. They have done it because a number of the Democrats over here have never been in the minority. They do not realize how awful that rule- change is. They do not realize that the filibuster is a rule of freedom that protects the minority and makes the Senate debate on these matters.

I once said I would fight to my death for the filibuster rule because it is what makes the Senate different from the House of Representatives. The House of Representatives is the people's body. They can do anything once they get a rule and get 50 percent plus one of the votes--anything. It was structured that way. The Senate was structured another way. Our young new Senators on the other side don't seem to understand that.

I have chatted with a number of more senior Senators who have been through being in the minority, who have been through some of the battles here. Let me tell you, they are as concerned as I am that this body is totally damaged by this breaking of the rules, destroying the rules for purely partisan purposes. They can talk about how they just want the Senate to work all they want to. The Senate is never going to work as well without this rule. The minority will never be protected as well without this rule.

I have to say that I hope we can get this rule put back in place. Even though it is a disadvantage to Republicans right now because they now have three more liberal judges on the DC Circuit Court of Appeals, which was divided four to four, Republicans appointees to Democrat appointees--four to four. Now they stack it, the most important court in the country as far as regulatory affairs are concerned and administrative law is concerned, so they can pass through that court the Obama administration's regulatory measures and desires without having to face real debate.

There was a reason why the Founding Fathers created the three separate governmental powers, because each of those powers is to protect our country. They are making it so that regulatory matters, administrative matters, and so forth there is really only one-sixth who are Republicans.

Order for Correction

Mr. President, there was an incorrect reference to the House bill number in a consent agreement earlier today with respect to the Fallen Firefighters Assistance Tax Clarification Act. I ask unanimous consent that the previous order be modified to reflect the correct House bill number--H.R. 3458.

I yield the floor.

Mr. President, over the past few months, here on the Senate floor, in the Judiciary Committee, and in op-eds in national publications, I have explained why the pending nominees to the U.S. Court of Appeals for the DC Circuit should not be confirmed. Neither those facts nor the conclusion they compel have changed and

so I will vote against confirming the nominee before us.

The majority changed more than 200 years of Senate practice, taking away one of the few tools the minority has to participate in either the confirmation or legislative process. On nothing more than a party line vote, the majority deployed a premeditated parliamentary maneuver to prohibit the very filibusters that majority Senators once used.

Getting these three individuals on this particular court at this particular time is apparently so important that the majority is willing to change the very nature of this institution to do it. I believe the reason is the majority's belief that, as DC Circuit judges, these nominees will reliably support actions by the executive branch agencies that are driving much of President Obama's political agenda.

Democrats enthusiastically embraced the filibuster when they used it to block Republican nominees to positions in both the executive and judicial branches. They used the filibuster to defeat nominees to be Assistant Secretary of Defense, Undersecretary of Agriculture, and U.N. Ambassador. They used the filibuster to defeat nominees to the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. They filibustered Miguel Estrada's nomination a record seven times to keep him off the DC Circuit. Three-quarters of all votes for judicial nominee filibusters in American history have been cast by Democrats. The majority leader alone voted to filibuster Republican judicial nominees no less than 26 times.

That was then, this is now. Simply turning on a political dime and opposing today what Democrats used so aggressively just a few years ago would be bad enough. But this radical institutional change is being justified by patently false claims. The majority leader claims as proof of ``unprecedented obstruction'' that there have been 168 nominee filibusters in American history, half of them during the Obama administration.

It turns out, Mr. President, that the majority leader is not even counting filibusters at all. He is counting cloture motions, which are nothing but requests to end debate on a matter pending before the Senate. A filibuster occurs only when that request to end debate is denied, when an attempt to end debate fails. Only 52 cloture votes on executive or judicial nominations have ever failed in American history, and only 19 nominees on whom cloture was filed were not confirmed. Looking at the Obama administration, only 14 cloture votes on nominations have failed and only six nominees have so far not been confirmed.

During the Obama administration, a much lower percentage of cloture motions on nominations have resulted in cloture votes, a much higher percentage of those cloture votes have passed, and a much higher percentage of nominees on whom cloture was filed have been confirmed. By what I have called filibuster fraud, the majority ends up claiming that confirmed nominees were obstructed and that ending debate is a filibuster. The truth is the opposite of what the majority claimed as the justification for ending nominee filibusters.

I regret that the President and the majority here in the Senate deliberately set up this political confrontation. I have explained in detail before how the DC Circuit's current level of eight active and six senior judges is sufficient to handle its caseload, which has been declining for years, while other circuits need more judges. I likely could support the nominee before us today had she been nominated to a seat that needed to be filled on a court that needed more judges.

Using false claims to justify radically changing the confirmation process in order to stack a court with judges who will rubberstamp the President's political agenda is wrong in so many ways. I hope there is time to undo the damage.

I ask for the yeas and nays.

Madam President, today we face a real crisis in the confirmation process, a crisis concocted by the majority to distract attention from the Obamacare disaster and, in the process, consolidate more power than any majority has had in more than 200 years. This crisis was created by a majority that wants to win at all cost, for whom the political ends justify any means whatsoever. The two parts of this crisis are what the majority is doing and how they are doing it.

What the majority is doing is terminating the minority's ability to filibuster judicial nominees. If anyone thought that judicial filibusters were so easy that the minority has been doing it indiscriminately, they would be wrong. It is harder to filibuster judges today than at any time since the turn of the 19th century. And the truth is that Democrats are now terminating a practice that they created and that they have used, by orders of magnitude, far more than Republicans.

In February 2001, just after President George W. Bush took office, Democrats vowed to use ``any means necessary'' to defeat his judicial nominees. That is one promise Democrats kept. They pioneered using the filibuster to defeat majority-supported judicial nominees in 2003. In fact, 73 percent of all votes for judicial filibusters in American history have been cast by Democrats.

By this same point under President Bush, the Senate had taken 26 cloture votes on judicial nominees, more than twice as many as have occurred under President Obama. Under President Bush, 20 of those cloture votes failed, nearly three times as many as under President Obama. Democrats set a record for multiple filibusters against the same nominee that still stands today. They filibustered the nomination of Miguel Estrada, the first Hispanic nominee to the U.S. Court of Appeals for the DC Circuit, seven times.

Individual Democratic Senators took full advantage of the judicial filibuster that they now are terminating. The majority leader, the majority whip, and the Judiciary Committee chairman together voted 82 times to filibuster Republican judicial nominees. In contrast, the minority leader, minority whip, and Judiciary Committee ranking member have together voted only 29 times to filibuster Democratic judicial nominees. For those same Democratic Senators to now take away from others the very tactic that they invented and used so liberally is beyond hypocritical.

The other part of this crisis is how the majority is terminating the judicial filibuster. The title ``nuclear option'' has been given to two methods by which a simple majority can change how the Senate does business. The first method has never been tried and can occur, if at all, only at the beginning of a new Congress. Because this method would actually change the Senate's written rules, it would be a public process involving a resolution and examination by the Rules Committee. Republicans considered using this method at the beginning of the 110th Congress but did not do so.

The majority today is instead using the second method, which requires only a ruling from whoever is presiding over the Senate. It is a pre- scripted parliamentary hit-and-run, over in a flash and leaving Senate tradition and practice behind like so much confirmation roadkill. This would be the wrong way to address even a real confirmation crisis, let alone the fake one created by the majority today.

The majority, it seems, just does not like the way our system of government is designed to work. I have been in the majority and the minority several times each, more than enough to experience that the rules, practices, and traditions of this body can annoy the majority and empower the minority. That is how this body is designed to work as part of the legislative branch. But the majority today wants to have it all. They are denying to others the very same tools that they used so aggressively before.

This year, the Senate has confirmed more than twice as many judges than at the start of President Bush's second term. We have confirmed nine appeals court judges so far this year, a confirmation rate exceeded only a handful of times in the 37 years I have served in this body. President Obama has already appointed one-quarter of the entire Federal judiciary.

But that is not enough for this majority. In order to clear the way for winning every confirmation vote every time, Democrats set up a confrontation over nominees to the DC Circuit. They knew that the DC Circuit did not need more than the eight active judges it now has. How did they know? Because the very same standards they used in 2006 to oppose Republican nominees to that court told them so.

In 2006, Democrats opposed more DC Circuit nominees because written decisions per active judge had declined by 17 percent. Since 2006, written decisions per active judge have declined by an even greater 27 percent. In 2006, Democrats opposed more DC Circuit appointments because total appeals had declined by 10 percent. Since 2006, total appeals have declined by an even greater 18 percent. The DC Circuit's caseload not only continues to decline, but is declining faster than before.

In 2006, Democrats opposed more DC Circuit appointments because there were 20 judicial emergency vacancies and there were nominees for only 60 percent of them. Since 2006, judicial emergency vacancies have nearly doubled and the percentage of those vacancies with nominees has declined to less than 50 percent.

Judiciary Committee Democrats put those standards in writing in 2006. None of them, including the four who still serve on the Judiciary Committee today, have either said they were wrong in 2006 or explained why different standard should be used today. They have not done so because this about-face, this double-standard, is a deliberate ploy to create an unnecessary and fake confirmation confrontation.

I have to hand it to my Democratic colleagues because reality television cannot hold a candle to this saga.

Democrats first abandoned the arguments they used against Republican nominees to the DC Circuit in order to create a fake confrontation. Then they ``solve'' this confrontation by terminating judicial filibusters that they once used against Republican nominees.

The filibuster has been an important--some would say a defining-- feature of how this body operates for more than 200 years. It has always annoyed the majority because it empowers the minority. Both parties have used it, both parties have criticized it. But no majority has done what Democrats have done today. They have fundamentally altered this body, they have in the most disingenuous way done long term institutional damage for short term political gain. This majority wants everything to go their way, and will do anything to make that happen.

The majority created this fake confirmation crisis for two reasons. First, they want to stack the DC Circuit with judges who will approve actions by the executive branch agencies that President Obama needs to push his political agenda. Second, they want to distract attention from the Obamacare disaster. I think this heavy-handed move will have the opposite effect on both counts. Just as both parties have used the filibuster to stop certain judicial nominees, both parties will use the absence of the filibuster to appoint certain judicial nominees. And now that the majority has crossed this parliamentary Rubicon, we can indeed focus again on what Obamacare is doing to American families. This is a sad day for the Senate, for the judiciary, and for the American people who want to see their elected representatives act on integrity and principle rather than use gimmicks and power plays.

Mr. President, I have received letters from constituents all over Utah who are scared, angry, and confused about the changes they are facing under ObamaCare. I have heard countless stories from Utahns losing their coverage and who will be forced into more expensive plans, thanks to the so-called Affordable Care Act.

One such story came from Kathy in Salt Lake City. I spoke briefly about Kathy on the floor a few weeks ago. Kathy wrote to tell me how she was notified by mail that her existing health care plan was no longer going to be offered. Instead, she was presented with an ObamaCare-compliant policy that will increase her deductible from $3,000 to $5,000, increase her copays for doctor visits by 30 percent, and increase her copays for prescription drugs as much as 50 percent.

As a result of these changes, Kathy's health care expenses will exceed her income. To quote Kathy:

The claim that only substandard policies were canceled is a

lie--the plan I was on was a good policy.

She does not trust the new healthcare.gov Web site and feels there is not adequate security to protect her personal information. In her words: ``I wouldn't touch the exchange with a 10-foot pole.''

She is not alone in feeling this way, which spells trouble for these new health care exchanges and for the President's health care law.

I yield the floor.

Mr. President, today I wish to recognize a dedicated business man, public servant and friend for his exemplary service in my home State of Utah. Lew Cramer will retire after a distinguished career building international trade in Utah and supporting exports for the United States.

Mr. Cramer began his career earning a bachelor's and law degree from Brigham Young University in Provo, UT. It was many years later that he returned to co-found World Trade Center Utah, an organization which has been instrumental in Utah's economic success. Through the World Trade Center, Mr. Cramer connects Utah firms with new business opportunities around the world. It is thanks to the efforts of hardworking men like Mr. Cramer that, in this time of economic hardship, Utah is the only State in the Nation showing positive export growth year over year for the past decade. With the pioneering spirit of a true Utahn, Mr. Cramer has helped our companies take advantage of export opportunities creating quality, stable jobs in Utah.

Before his time in Utah, Mr. Cramer spent many years in public service. He served as Director General of the U.S. Commercial Service during President George H.W. Bush's administration, directing the activities of 1,400 commercial officers at more than 150 embassies worldwide, as well as in 65 offices throughout the United States. During the Reagan administration, he served as a White House fellow, a Deputy Assistant Commerce Secretary and as the Assistant Secretary of Commerce for International Trade.

Mr. Cramer has worked extensively in the global telecommunications and broadband sectors, including serving as vice president for MediaOne International and US WEST, where he was responsible for their international government and multilateral financial institution relations and public policy for numerous wireless and broadband investments in more than 30 countries. Mr. Cramer shares his vast experience through education. He has taught international business at Georgetown University and the University of Southern California.

I would like to wish my friend the very best in his retirement and to profoundly thank him for his exemplary record of service to Utah and to our Nation.

Mr. President, recently the people of Taiwan celebrated their National Day, marked by celebrations, parades, and fireworks befitting its importance as a national holiday. This occasion offers a timely opportunity to reflect on the state of our bilateral relationship with Taiwan, which has been a cooperative and warm relationship over many decades.

In this rapidly evolving 21st-century global economy and with Taiwan's economic significance having steadily grown, it is important for our two nations to further resolve our bilateral trade issues. While some progress has been made through our trade and investment framework agreement, the continued resolution of outstanding trade issues could help pave the way for even deeper ties, including the possibility of a bilateral investment agreement.

Concurrently, the U.S. Trade Representative recently wrapped up the 19th round of negotiations of the Trans-Pacific Partnership. I welcome Taiwan's interest in the TPP--an interest that we hope will serve as a catalyst for Taiwan to continue making progress toward meeting its existing trade commitments so that it may be in a position to meet the higher level requirements of the TPP.

Taiwan continues to be an important friend and ally of the United States, and we look forward to strengthening those ties.

Mr. President, since I was first elected, the Senate has considered more than 1700 nominations to Article III federal courts. In nearly every case, the focus was on the individual nominee and whether he or she was qualified for judicial service. The nominee before us today is one of the rare exceptions. The focus here is on the court to which she and two others have been nominated, the US Court of Appeals for the DC Circuit. I cannot support any of these nominees because no one, no matter who they are and no matter what their qualifications, should be appointed to this court at this time.

It would be difficult to make a more compelling case that the DC Circuit needs no more judges. The Administrative Office of the U.S. Courts is the keeper of the caseload facts and ranks the DC Circuit last among all circuits in appeals filed and appeals terminated per judicial panel. In fact, the AO ranks the DC Circuit last even in the catch-all category of ``other caseload per judgeship.'' And Chief DC Circuit Judge Merrick Garland recently confirmed that the number of DC Circuit cases scheduled for oral argument has declined by almost 20 percent in the last decade.

Here is another way to look at this issue. In July 2006, Democrats on the Judiciary Committee signed a letter to then-Chairman Arlen Specter opposing more DC Circuit appointments for two reasons. First, they used specific caseload benchmarks to conclude that the court's caseload had declined. Second, they said that filling vacancies labeled judicial emergencies by the Judicial Conference was more important.

I am not aware that my Democratic colleagues on the Judiciary Committee have said either that they used the wrong standard in 2006 or that their 2006 standard should not be used today. I do not want to accuse anyone of using different standards for nominees of different political parties, so it is fair to apply the same standard that Democrats used to oppose Republican DC Circuit nominees.

Democrats opposed more DC Circuit nominees because total appeals filed had declined. According to the AO's most recent data, total appeals filed have declined 18 percent further since 2006. Democrats opposed more DC Circuit nominees because written decisions per active judge had declined. The AO's data show that written decisions per active judge have declined 27 percent further since 2006. Democrats opposed more DC Circuit nominees because there were nominees to only 60 percent of the 20 existing judicial emergency vacancies. Today, the Senate has pending nominees to only 49 percent of the 37 current judicial emergency vacancies. These are the facts. New appeals filed and written decisions per active judge in the DC Circuit are both 76 percent below the national average and 50 to 60 percent below the next busiest circuit.

I hope that my colleagues get the point. No matter how you slice it or dice it, the DC Circuit has the lowest caseload of any circuit in the country and its caseload continues to decline. The very same standards that Democrats used to oppose Republican nominees to the DC Circuit in 2006 show conclusively that the court needs no more judges today. As I said, none of my Democratic colleagues--and 4 who signed that 2006 letter are on the Judiciary Committee today--have said they were wrong in 2006 or attempted to explain why their 2006 standard is inappropriate today.

The Senate evaluates the vast majority of judicial nominees on their own merits. These current DC Circuit nominees are the rare exception because they have been chosen for a court that needs no more judges at all. The better course would be to enact S. 699, the Court Efficiency Act, which would move two of these unnecessary DC Circuit seats to circuits that need them.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, before I make my remarks, I understand the distinguished Senator from Tennessee has been waiting to make some remarks himself. I ask unanimous consent that he go first, and then if Senator Baucus is here, he goes second, and I go third, but if Senator Baucus is not here, I will go second.

Mr. President, during the debt limit impasse in 2006, then-Senator Obama stated:

The fact that we are here today to debate raising America's

debt limit is a sign of leadership failure. Leadership means

the buck stops here. Instead, Washington is shifting the

burden of bad choices today onto the backs of our children

and grandchildren. America has a debt problem and a failure

of leadership, and Americans deserve better.

That was former Senator Barack Obama.

At that time our gross debt was $8.3 trillion. It is now well above twice that, currently standing at $17.1 trillion, which is over 100 percent of the size of our economy.

During that same 2006 debt limit debate, then-Senator Biden said:

My vote against the debt limit increase cannot change the

fact that we have incurred this debt already and will no

doubt incur more. It is a statement that I refuse to be

associated with the policies that brought us to this point.

That was then-Senator Biden. Things have certainly changed since 2006.

Now President Obama and Vice President Joe Biden preside over an administration which tells us that raising the debt limit is merely a matter of paying our bills and is a reflection of decisions made in Congress. Yet while it is ostensibly true that the Congress has the power to raise the debt limit, it is not true that Congress makes spending decisions unilaterally, with no role being played by the executive branch. No amount of spending can be enacted without the President signing it into law.

In addition, the President submits a budget every year. The White House also issues policy statements and veto threats on spending bills on a more or less frequent basis. And, of course, every administration works with Congress to enact its domestic agenda which inherently includes setting priorities on Federal spending. So, in short, the commonly repeated notion that questions surrounding spending and the debt limit are Congress's and Congress's alone to answer is simply an attempt by this administration to avoid accountability on these issues.

Ultimately, regardless of what President Obama and those in his administration are saying now, both Congress and the executive branch are to blame for our current predicament.

The President has exercised his authority to suspend the debt limit under the Continuing Appropriations Act of 2014, which he signed into law on October 17. On October 16, public debt subject to the limit was around $16.7 trillion. On October 17--the very next day--public debt subject to the limit was over $17 trillion. In one day, Treasury increased the debt subject to the limit by over $328 billion. Let me repeat that. The debt increased by over $328 billion in a single day. That brings the increase in total public debt under this administration to more than $6.4 trillion, an amount that is, by all accounts, unprecedented.

Echoing earlier sentiments of then-Senator Biden, I refuse to be associated with the policies that brought us to this point.

The debt limit debate provides us with an opportunity to reexamine our Nation's fiscal course and take steps to correct it. Sadly, we have a President who appears unwilling to have that conversation. Instead, he apparently wants to press forward, full steam ahead, on our already unsustainable course, saddling future generations with unheard-of debts and broken entitlement promises in the process. Unfortunately, as the Congressional Budget Office has made clear, over the course of President Obama's administration, the Federal Government has recorded the largest budget deficits relative to the size of the economy since 1946, causing our debt to soar, as we all know. Federal debt as a percent of the economy's annual output is higher than at any point in U.S. history, except for a brief period around World War II.

CBO makes three other points equally clear. No. 1, our debt path is unsustainable, threatening our economy and putting us at risk of a fiscal crisis. No. 2, the root of our fiscal problem is Federal spending, not a lack of revenue. No. 3, the main source of our spending problem is our unsustainable entitlement programs. That being the case, any serious talk about raising the debt limit must include a real, concrete discussion about entitlement reform.

As every credible analyst tells us, we need to face the fiscal facts and enact serious structural reforms to our entitlement programs. So far, President Obama has been unwilling to even engage in this discussion. These days, every fiscal discussion with the White House begins and ends with demands for additional tax hikes to fuel even more spending. I guarantee it will be spending, not paying down the national debt or paying down what we owe; it will be to spend more.

Of course, the President will occasionally resurrect offers he has made in past failed fiscal negotiations to include small entitlement changes, including, for example, movement to a different price index for certain cost-of-living adjustments, but at the same time the President and his administration have made clear that even those small entitlement changes will only be on the table if tax hikes are delivered first. That is the President's precondition for even entertaining tax reform or entitlement reform, even on the heels of a more than $630 billion tax hike at the beginning of this year and another $1 trillion in revenue delivered courtesy of ObamaCare.

Entitlement reform is not an option, it is a necessity.

Structural reforms to our health care entitlements should not hinge on another tax-and-spend operation. And structural reforms to Social Security should not be held hostage to another tax hike.

Earlier this year I personally presented to the President, in detail and in writing--again, I emphasize I personally gave him this--five reform proposals relating to Medicare and Medicaid that have received bipartisan support--Democratic and Republican support--in the past. I asked him to consider the proposals and have since asked members of his administration to likewise give the proposals consideration.

By the way, when we had our supper at the White House in the family dining room, I brought it up again. By the way, I brought it up with the Secretary of the Treasury over and over. I did not wait until an impending debt limit debate. Rather, I put my proposals forward in a good-faith effort to begin timely discussions. Unfortunately, thus far, I have not received even the slightest response, while the clock on Medicare and Medicaid keeps ticking, and both of them are running more and more deficits as we speak. By the way, the five points were bipartisan. They were bipartisan measures that both Democrats and Republicans supported.

The situation with Social Security isn't much better. The trustees of the trust funds embedded in the Social Security system, including top administration officials such as the Treasury Secretary, have, in no uncertain terms, urged Congress to act quickly on reforming the retirement and the disability insurance programs to move them toward sustainability. Quite simply, it would be folly to approve of yet another debt limit increase without also working to address these programs, which are the main drivers of our debts and deficits.

Therefore, I disapprove of the President's exercise of an authority to suspend the debt limit, and I urge all of my colleagues to similarly disapprove.

The recent debt limit impasse and the impasse of 2011 also provided a good deal of information about lack of accountability of the Treasury Department and of our regulatory agencies.

I currently serve as the ranking member on the Senate Finance Committee which has oversight responsibility toward the Treasury Department. To fulfill those responsibilities, I have been asking questions of Treasury about debt and cash management procedures, and I have repeatedly been stonewalled by the Treasury Department. I don't know that I have ever seen this happen before in either Republican or Democratic administrations.

For example, when we have approached the debt limit, I have asked questions about how much cash our Nation has in the till, only to find that Treasury won't tell me and that they prefer the Congress rely on estimates from think tanks and Wall Street firms.

Furthermore, during the most recent debt limit impasses, administration officials were busy frightening seniors, our troops, and financial market participants about whether they would be paid in the event the Treasury were to run out of cash. Officials also identified threats of massive financial instability stemming from a breach of the debt limit and of potential disruption from a downgrade of the rating on U.S. Government securities.

So, naturally, I asked Treasury and, in fact, every voting member of the Financial Stability Oversight Council, or FSOC, to provide Congress and the American people information regarding the plans they had in place to respond to such catastrophes. Out of close to 20 letters I sent to FSOC members, I received only 3 responses. Apparently, the FSOC, which was empowered by the so-called Dodd-Frank Act to monitor and respond to merging threats to financial stability, does not identify or share response plans with respect to any threat that could emerge as a result of government policies.

That being the case, I believe we should strip FSOC of any notional oversight of financial stability and call it what it really is: another unrestrained regulatory agency created only to enact additional regulations.

After the fact, we have found that Treasury and some financial regulators had plans for how to respond to a debt limit breach or a ratings downgrade. Yet none of these plans were shared with Congress.

Put simply, if we are going to empower a Federal regulatory body such as the FSOC to develop contingency plans to respond to threats to financial stability, then that body should be required to share those plans with the American people. Sadly, thus far that has not been the case.

Another thing I have learned from our recent debt limit impasses is that we need to take a closer look at the Treasury Department's use of so-called extraordinary measures, which have become all too ordinary. These ``extraordinary measures'' are merely ways for the Treasury Department to temporarily delay facing a debt limit increase by issuing shadow debt. For example, Treasury can simply declare a debt issuance suspension period and stop issuing debt that it normally would issue while instead effectively telling the lender: Don't worry, I will pay you back later with interest. I believe the authority to use these types of extraordinary measures needs to be reexamined.

As you can see, Mr. President, there are a number of problems that need to be confronted with regard to our Nation's ever-growing debt. As I said, we need to work together to address our Nation's unsustainable entitlement programs; otherwise, any effort to rein in our debts and deficits will amount to little more than tinkering around the edges.

In addition, we need to improve information sharing between Congress and the executive branch on issues relating to our debt. The Treasury Department and our financial regulators

have a lot to do with maintaining the depth, liquidity, and efficiency of the market for Treasury securities, and Congress has a duty to exercise oversight over these functions. Unfortunately, the administration, far more often than not, opts to keep Congress in the dark on these issues. And, the Treasury and financial regulators choose to keep their plans secret. This has to stop.

By using his authority to suspend the debt limit through February 7, 2014, President Obama has opted not to confront any of these serious issues. Instead, he is leading us even further down a path that we already know is unsustainable. That being the case, I plan to vote in favor of the resolution of disapproval of this debt limit suspension, and I urge my colleagues to do the same.

Having said all this, we are in a really big mess on ObamaCare--or if you want to call it the ``Affordable Care Act'' that nobody believes is affordable at all. They know it is going to lead us right into even more unsustainability than we have right now. I suspect that over time our brilliant people in the IT world, the information technology world, many of whom I know personally, will find some way to resolve what really has been a horrible, horrible situation with the broken introduction of the ObamaCare website. We all know it is horrible, and I hope they can resolve that. I think it is going to be hard because it is such a mess. I hope Mr. Zients is successful in his efforts to try to cure the broken system, but that does not cure the faults or problems with ObamaCare as a whole.

What about the 30-hour rule? A lot of people, a lot of businesses, especially small businesses today, are making sure their employees do not work more than 30 hours because if they do, it triggers their having to pay what appear to many to be outrageous health care costs. That is just one thing, and that is not going to be easily resolved because the bill is such a stupid bill. It was stupid to begin with. We knew it would not work to begin with. We made the case that it would not work, and frankly we are here in this really ridiculous posture where we have been stymied because of an ineptly implemented introduction of a flawed law, and there is certainly some incompetency here. I hope they can resolve that, but that still does not resolve the 30-hour rule, which is very important.

How about the 50-employee rule? A lot of businesses that would have expanded, small businesses that would have grown, that would have tested the market and really gotten going, do not want to employ more than 49 people and trigger a massive sudden cost to their businesses.

These are problems that basically are unsolvable under the bill, and they may be even larger problems than those we have with regard to the website problems I have been mentioning.

ObamaCare is full of cliffs: to implicit tax rates; to hours of work; to numbers of employees. And those cliffs have led and will lead to more economic damage.

That is just the beginning. I could speak for hours about what is wrong with this lousy Act called ObamaCare. I wish some of my colleagues on the other side would start saying what they actually know. They know it is a lousy Act. They know it is something that is not going to work. And if it does--if they continue to maintain that it has to work--it is going to be a massive cost to society, with less effective health care than we have ever had before.

It is not just these technical problems that we have to solve; it is the economic problems that arise from ObamaCare. And I know what is going to happen. Within the next year or two, our friends on the other side--or should I say the White House in particular--President Obama is going to throw his hands in the air and say: It is not working. We have to go to a single-payer system, meaning socialized medicine. Anybody who believes that is the way to go--it sounds easy, but anybody who believes that is the way to go has not looked at socialized medicine around the world. They can point to some instances where it has worked for a short time, but over time it results in less health care, higher costs, and stultification of what really could be a great health care system.

I want to solve these problems in health care, but I believe they ought to be solved on a bipartisan basis and not just a partisan basis, which is where we are with regard to ObamaCare--or should I say the ``Affordable Care Act.''

There are a number of people in this body and in the other body who, like me, have worked in health care areas and on health care issues ever since they have been in the Congress who would be willing to sit down and get this resolved. But I have to say there was no real consultation, there was no real effort to work in a bipartisan way, as far as I could see, even at the lower levels in Congress, in developing the partisan product called ObamaCare. It was just they were going to pass this and that is the way it will be. Now they are stuck with it-- should I say they are not really the ones who are stuck with it; it is the American people and the American taxpayers who are stuck with it. We have to, sooner or later, get together to resolve this problem without going to socialized medicine.

I have talked to a number of doctors, health care providers, who are going to get out of the profession. They do not want to be governed by this type of governance. Frankly, you are going to find that if we go to socialized medicine, doctors are not going to work more than 6 or 8 hours a day, where today they will work as long as it takes to serve people who need their help. We are going to find a real dearth of doctors. We are going to find a real dearth of the ability to provide the health care people need. We are going to start doing what that payment advisory board really is set up for, and that is rationing. Once that starts, the American people are going to rebel.

It is going to happen sooner or later if we do not get our friends on the other side to at least work with us on finding some resolution. I have to say that we are working on our side to come up with a resolution, and I hope I can interest our colleagues on the other side. I admit that we can do a lot better than we are doing around here. We can do it in a much better bipartisan way than we are doing it. I think some people get a joy out of creating battles around here when we should get a joy out of resolving problems.

I yield to the distinguished Senator from South Dakota.

Mr. President, I suggest the absence of a quorum.