Floor Statements

Mr. President, I rise to speak on the nomination of Debo Adegbile to serve as Assistant Attorney General for the Justice Department's Civil Rights Division.

Some Americans may vaguely recall Mumia Abu-Jamal from the ``Free Mumia'' T-shirts and posters that once cluttered college campuses.

Maureen Faulkner will forever remember him as a cold-blooded cop killer who left her as a widow at age 24.

Maureen Faulkner has endured three decades of endless appeals and a dishonest international campaign to turn her husband's killer into a celebrated icon for some on the radical left.

Now one of the lawyers who helped promote that campaign, Debo Adegbile, has been nominated to lead the Justice Department's Civil Rights Division. This cannot stand and I hope the Senate will not confirm him.

Let's review the facts.

At 3:51 a.m. on December 9, 1981, 25-year-old police officer Daniel Faulkner pulled over a car in the city of Philadelphia. The car's headlights were off, driving the wrong way down a one-way street.

The driver exited the car and began assaulting Officer Faulkner. The driver's brother, Mumia Abu-Jamal, was watching from across the street. Four eyewitnesses saw Abu-Jamal race across the street, shoot Daniel Faulkner in the back, and while Officer Faulkner was lying helplessly on the ground, Mumia Abu-Jamal shot several more bullets into Faulkner's chest and face.

Three other witnesses heard Abu-Jamal brag that he had shot Daniel Faulkner and hoped that Faulkner would die.

During the trial, when Daniel Faulkner's bloodstained shirt was displayed, the jury saw Abu-Jamal turn in his chair and smirk at Officer Faulkner's young widow Maureen.

So it was no surprise when a Pennsylvania jury took just 3 hours to convict Abu-Jamal of murder, and the next day 2 hours to sentence him to death.

Instead of allowing Daniel Faulkner's young widow to grieve in peace, a group of political opportunists decided to use this case to further their own political agendas. They fabricated claims of racism. They spread lies about the trial and the evidence. They organized rallies that, amazingly, portrayed Mumia Abu-Jamal as the victim.

Before long, Abu-Jamal was a cause celebre, complete with adoring Hollywood celebrities, ``Free Mumia'' T-shirts and posters. He had his own HBO special, and they even named a street after him in Paris.

In 2009, 27 years after Daniel Faulkner's murder, the NAACP Legal Defense Fund, or LDF, decided they would join the fray.

For decades before Mr. Adegbile assumed his leadership role in the LDF, the LDF served as a force for truth and justice for all Americans--a very important and well-deserved reputation for having done that. But, unfortunately, LDF's representation of Abu-Jamal promoted neither truth nor justice.

It is important to point out this is not a case about every accused person deserving a legal defense. That is a principle upon which I hope there is no disagreement, certainly not from me. The fact is, though, Abu-Jamal had multiple high-cost lawyers already volunteering their time.

Mr. Adegbile was director of litigation for the LDF. He told the Senate Judiciary Committee that he ``supervised the entire legal staff'' at LDF--18 lawyers. Also, he was, in the words of the LDF's own Web site, responsible for LDF's advocacy ``both in the courts of law and in the court of public opinion.''

This is important to understand because this duty to supervise has very specific implications for lawyers. A lawyer must confirm that the lawyers he oversees are honest while presenting facts in a case. The law backs this up. Supervising lawyers can be sued for malpractice or sanctioned by a court for the actions of the lawyers he or she supervises.

And how did the LDF's lawyers comport themselves under Mr. Adegbile's

direction and leadership and supervision? Well, under Mr. Adegbile's oversight, LDF lawyers promoted the pernicious myth that Abu-Jamal was an innocent man and that he was framed because of his race.

There was never any merit to the claims of racism. That was a conclusion that was investigated and reached by both State and Federal courts.

In fact, the jury that convicted and sentenced Abu-Jamal to death included two African Americans and would have included one more except that Abu-Jamal himself ordered his lawyer not to seat that third juror.

Yet, in February of 2011, Mr. Adegbile's group issued a press release stating that ``Mumia Abu-Jamal's conviction and death sentence are relics of a time and place that was notorious for police abuse and racial discrimination.''

In May of 2011, two of the lawyers supervised by Mr. Adegbile traveled to France. They went there for a rally on behalf of Mumia Abu- Jamal.

One LDF lawyer said she was ``overjoyed'' that Abu-Jamal's death sentence was suspended, but she bemoaned the fact that Abu-Jamal would not have a new trial and so could not be set free.

The other LDF lawyer described Abu-Jamal as one of the ``people who are innocent'' but ``will continue to be put to death in America.''

At another event in New York City that same year, a lawyer working for Mr. Adegbile gushed, ``It is absolutely my honor to represent Mumia Abu-Jamal.'' She continued: ``there is no question in my mind, there is no question in the mind of anyone at the Legal Defense Fund, that the justice system has completely and utterly failed Mumia Abu-Jamal'' and that failure ``has everything to do with race.''

I agree that the justice system has failed. But it has failed Officer Danny Faulkner and his family.

No one understands this story of injustice better than Officer Danny Faulkner's widow Maureen. Maureen Faulkner pleaded with the Senate Judiciary Committee for a chance to tell her story, for a chance to testify before the committee as they were deliberating the candidacy of Mr. Adegbile. But the Senate Democrats on the committee would not allow her to testify. They did not let her tell her story and, instead, they voted to send his name on to the Senate floor for confirmation.

I think Maureen Faulkner has a right to be heard. So I hope my colleagues will listen as I read a letter she wrote addressing all of us:

Dear Senators,

While I would have preferred to do so personally, I'm

writing this letter appealing to your sense of right and

wrong, good and evil as you consider the nomination of Debo

Adegbile to be the next head of the Civil Rights Division of

the Department of Justice.

33 years ago my husband, Philadelphia Officer Daniel

Faulkner, was violently murdered by a self-professed

``revolutionary'' named Mumia Abu-Jamal. I was 24 years old.

While most of my friends spent their summer at the Jersey

Shore, I sat in a hot steamy courtroom and watched in horror

and disbelief as the man who murdered my husband tried to

turn the courtroom into a political stage where he could spew

his hatred and contempt for this country and our judicial

system.

At the moment my husband's blood stained shirt was

displayed by the evidence handler, Mumia Abu-Jamal turned in

his chair and smirked at me; demonstrating his contempt for

law enforcement. Thankfully, a racially mixed jury that was

selected by Abu-Jamal while representing himself, found him

guilty. The following day they sentenced him to death for the

brutal act he committed.

That's when my second nightmare began. For three decades,

my family and I endured appeal after appeal--each rooted in

lies, distortions and allegations of civil rights violations.

And year after year, judge after judge, the conviction and

sentence were unanimously upheld. Then, thirty years after

the fact, my family, society and I were denied justice when

three Federal District Court judges who have found error in

every capital case that has come before them overturned the

death sentence.

Today, as my husband lies thirty three years in the grave,

his killer has become a wealthy celebrity. He pens books and

social commentaries critical of our country. He regularly

uses his nearly unlimited access to the prison telephone to

do radio programs, has cable TV in his cell and is permitted

to hold his wife, children and grandchildren in his arms when

they visit.

Old wounds have once again been ripped open and additional

insult is brought upon our law enforcement community in this

country by President Obama's nomination of Debo Adegbile.

While publicly demonstrating that he doesn't even know my

husband's name, Mr. Adegbile fains sympathy and caring for my

family and me.

In reality, Mr. Adegbile was a willing and enthusiastic

accomplish in Mumia Abu-Jamal's bid to cheat us of the

justice we had waited so many years for. Mr. Adegbile freely

chose to throw the weight of his organization behind Mumia

Abu-Jamal and he has publicly stated that he would get Mumia

Abu-Jamal off death row.

Mr. Adegbile holds Mumia Abu-Jamal, a remorseless

unrepentant cop killer, in high esteem. We know this because

attorneys working under Mr. Adegbile's supervision have stood

before public rallies held in support of my husband's killer

and openly professed that it was ``an extreme honor'' to

represent the man who put a hollow based bullet into my

husband's brain as he lay on the ground, wounded, unarmed and

defenseless. And while Mr. Adegbile and those who support his

nomination will undoubtedly argue that he did not personally

make such statements, he did nothing to counter or stop them.

In the end, like so many attorneys before him, Mr.

Adegbile's allegations of civil rights abuse rang hollow.

Mumia Abu-Jamal's death sentence was overturned not because

of civil right abuse as alleged by Mr. Adegbile, but because

three judges with a personal dislike for capital punishment

conveniently determined that the wording in a standard form

given to the jury might have confused them.

While Debo Adegbile may be a well qualified and competent

litigator, through his words, his decisions and his actions,

he has clearly and repeatedly demonstrated that he is not the

best person to fill this important position. Certainly there

are others with similar qualifications that would be better

choices. I would argue that Mr. Adegbile's decision to defend

a cop killer should preclude him from holding any public

position.

Your decision means a lot to me personally. The thought

that Mr. Adegbile would be rewarded, in part, for the work he

did for my husband's killer is revolting.

Throughout my long ordeal I have frequently been labeled a

racist by many who support my husband's killer simply because

he is black and I white. I have also been asked to throw my

name, my voice and my support behind political candidates

from both parties. In each case I have declined. I have

always believed that my husband's death and my quest for

justice transcends politics and race.

From my heart, I'm asking you to do the same thing. Set

aside any partisan feelings you have and do the right thing

today when you vote on Mr. Adegbile's confirmation. Please

spare my family and me from further pain.

Sincerely, Maureen Faulkner.

As the Justice Department's Web site explains, the Civil Rights Division of the Justice Department ``fulfills a critical mission in upholding the civil and constitutional rights of all individuals.'' Clearly, this requires that the head of the Civil Rights Division have an absolute commitment to truth and justice. There are many highly qualified Americans who can carry out this critical mission. Mr. Adegbile's record creates serious doubts that he is among them. For these reasons, I urge my colleagues to oppose the nomination of Mr. Debo Adegbile to serve as Assistant Attorney General for the Justice Department's Civil Rights Division.

I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent to speak in morning business.

Mr. President, fairly recently, the President of the United States nominated a candidate to lead the Civil Rights Division of the Justice Department. His name is Debo Adegbile. I am here this morning to explain to my colleagues why I believe that Mr. Adegbile is a very bad choice to run the Civil Rights Division of the Justice Department.

To make my case clear, I need to start with a story of a slain Philadelphia police officer. His name was Daniel Faulkner. This is a picture of Daniel Faulkner. It is important to tell his story. It is a story that begins 32 years ago. Many people have never heard this story, others have perhaps forgotten, since it was some time ago.

But the fact is that Danny Faulkner can no longer speak for himself and those who have tried to speak for him have often been drowned out by some powerful and wealthy voices that have had a political agenda and that have perversely defended his killer rather than the memory of Daniel Faulkner.

The story begins late at night on December 9, 1981. It was actually in the early morning hours that 25-year-old Philadelphia police officer Daniel Faulkner stopped a car that was driving in Philadelphia. The driver got out of the car and began to assault Officer Faulkner. The driver's brother Mumia Abu-Jamal was watching the incident from across the street. When he saw what was happening and as Officer Faulkner attempted to handcuff the driver of the car, Abu-Jamal ran up to the car and shot Officer Faulkner in the back. As Officer Faulkner was falling, he got off a shot, but the shot did not seriously wound Mumia Abu-Jamal.

Officer Faulkner then collapsed on the ground. While he was lying on the ground, helpless, defenseless, and severely wounded, Mumia Abu- Jamal stood over him and pumped four more bullets into him, including five bullets to the face, which killed Danny Faulkner on the spot.

Abu-Jamal himself was quickly apprehended. There were police who were on the next block over, and they got there almost immediately. They arrested Mumia Abu-Jamal. They took him to the hospital because he had been wounded, and while he was at the hospital he bragged about the fact that he had just shot a police officer and stated that he hoped the police officer would die.

Given these facts, Mumia Abu-Jamal's guilt was never in any serious question. There was a trial. There were four eyewitnesses to the shooting. There were three other witnesses who heard Mumia Abu-Jamal brag about the murder he had committed while he was in the hospital. In addition, there was ballistic and forensic evidence that made his guilt completely obvious to everyone. So it was not surprising that a jury took only 3 hours to convict Mumia Abu-Jamal after the trial occurred. It took them a further 2 hours to sentence him to death.

Then, instead of allowing Daniel Faulkner's young 24-year-old widow and his extended family to grieve in peace, a group of political opportunists decided this would be the case they would use to launch a campaign to further their political agenda. They fabricated a whole set of claims that Mumia Abu-Jamal was somehow framed. They spread lies about the trial. They organized a rally. Amazingly, what they were doing was portraying Mumia Abu-Jamal as a victim when, in fact, he was unquestionably a cold-blooded murderer.

It was part of a bigger campaign to turn Abu-Jamal into a celebrity and use him by those who had an agenda to attack America's criminal justice system. Unfortunately, to a large extent it worked. Abu-Jamal the murderer became somewhat of a celebrity in certain Hollywood circles. In Paris, they even named a street after him, and there were plenty of high-priced lawyers who lined up to volunteer their time to jump on this cause and to file endless series of appeals in a case that was an open-and-shut case. This, of course, among other things, had the effect of forcing Danny Faulkner's widow to relive this tragedy, this disaster for her, time after time, for decade after decade.

This gross abuse of justice, this travesty of justice had been going on for nearly three decades when in 2009 the

NAACP Legal Defense Fund, or the LDF, decided to volunteer its time, considerable resources, and its donor funds to join in this fray, to join in this travesty, initially as an amicus to the trial and then as co-counsel.

The President's nominee to run the Civil Rights Division, Mr. Debo Adegbile, was the person responsible for the LDF's decision and its behavior in this outrageous set of circumstances. At the time, he was the LDF's director of litigation, and, as Mr. Adegbile told our own Senate Judiciary Committee during his testimony, he ``supervised the entire legal staff'' at LDF. That was 18 lawyers. He was also, if one looks at the LDF's site, responsible for ``providing leadership and coordination regarding both litigation and non-litigation legal advocacy'' and was also, according to the LDF's own description, ``responsible for LDF's advocacy both in the courts of law and in the court of political opinion.'' So all of the legal, public, and political actions LDF was taking, it was taking under the direction, the supervision, and the authority of Mr. Adegbile.

It is important to understand this. There is a very clear legal principle that a supervising lawyer has the responsibility for the actions undertaken by the lawyers who report to him. That is the case in these circumstances, as well as the fact that the LDF openly acknowledges this.

What is it that the LDF lawyers then did in the circumstances of this case? When they should have been pursuing their historic role of providing the truth and justice for American people, they were advancing neither cause.

It is also important to point out that this was never a case of a criminal deserving a legal defense. Criminals do deserve appropriate legal counsel in their defense. The fact is that the trial had occurred decades ago. Abu-Jamal had multiple high-cost lawyers volunteering their time. He had plenty of lawyers. He didn't need more lawyers. What Mr. Adegbile did was he decided to join a political cause. That is what he decided to do. That is what this was all about. In my view, by doing so he demonstrated his own contempt for and, frankly, a willingness to undermine the criminal justice system of the United States.

Under Mr. Adegbile's oversight, the LDF spread misinformation about the trial, about the circumstances, and about the jury. He promoted division and strife among the American people and blocked justice for Danny Faulkner and Danny Faulkner's family. These LDF lawyers promoted the myth that Mumia Abu-Jamal was somehow a heroic political prisoner and that he was framed. In fact, he was a coward and an unrepentant murderer.

Under Mr. Adegbile's oversight, in January 2011 the LDF issued a press release decrying what I quote as the ``grave injustices embodied'' in Abu-Jamal's case.

In May 2011 two of the lawyers reporting to Mr. Adegbile traveled to France for a rally on behalf of this murderer Mumia Abu-Jamal. One of these LDF lawyers said she was ``overjoyed'' that Mumia Abu-Jamal's death sentence was suspended but bemoaned the fact that he would not have a new trial so he could be set free.

Another LDF lawyer described Abu-Jamal as ``people who are innocent'' but ``will continue to be put to death in America.'' Later, the same lawyer would falsely state that there was an absence of forensic evidence tying Abu-Jamal to Officer Faulkner's death. The fact is that there was forensic evidence. There were four eyewitnesses to the murder, and there were three witnesses to the subsequent bragging by Abu-Jamal about the murder.

At another rally again celebrating this murderer, one of the LDF lawyers supervised by Mr. Adegbile gushed: ``It is absolutely my honor to represent Mumia Abu-Jamal.'' This attorney went on to say: ``And there is no question in my mind, there is no question in the mind of anyone at the Legal Defense Fund, that the justice system has completely and utterly failed Mumia Abu-Jamal.''

I have to say I agree the justice system failed, but the justice system failed Danny Faulkner, not Mumia Abu-Jamal.

Now we are faced with a situation where an individual who was directly responsible for some of these terrible injustices that have been done in the wake of Danny Faulkner's murder has been nominated to a high-ranking position in the Justice Department. The Civil Rights Division is an extremely important division in the Justice Department. The head of this division plays a very important role. And what is his responsibility? According to the division's Web site, the Civil Rights Division ``fulfills a critical mission in upholding the civil and constitutional rights of all individuals.'' Of course, this requires that the head of the Civil Rights Division have an absolute commitment to truth and to justice.

I do not believe Mr. Adegbile's nomination is consistent with the goal of promoting truth and justice in America. I do not believe Mr. Adegbile's nomination is consistent with respect for America's legal system and rule of law. I do not believe Mr. Adegbile's nomination is consistent with justice for the family of Officer Danny Faulkner or for anyone else who cares about the law enforcement community across this country. For these reasons, I will oppose Mr. Adegbile's nomination to head the Civil Rights Division, and I urge my colleagues to do the same.

Mr. President, I rise to speak briefly about a bill I have introduced. This is a bill that is about protecting our kids in schools. As the father of three young kids, I share the feeling I suspect every parent has: There is no higher priority than making sure our children are safe. We can't personally provide that security all day everywhere at all times, and so we want to make sure the places our kids go are as safe as they can be. Our kids obviously spend a great deal of time at school, and so we want our schools to be the safest environment they can be. And it turns out there is more we can do.

I have a bill--it is a bill I have introduced with Senator Joe Manchin of West Virginia--a bipartisan bill that is going to help provide greater security for kids in our schools. My immediate inspiration for introducing this bill came from a tragic story that originated in Pennsylvania. It is a story that begins at a school in Delaware County. One of the schoolteachers, it turns out, had molested several boys and had raped one. The prosecutors never felt they had enough evidence to actually mount a case against him, but the school knew what had happened so they dismissed the teacher. But unbelievably, to me, although they dismissed him, they also gave him a letter of recommendation he could take with him as he applied--where do you think--to other schools. Because that is what these predators do--they look to be in an environment where they can find more victims. That is exactly what this guy did, and he managed to get another teaching job in West Virginia.

This episode ends in 1997, when that teacher--who by then was a school principal--raped and murdered a 12-year-old boy named Jeremy Bell. So justice has caught up with that teacher. He has since been apprehended, charged, tried, and convicted, and he is now serving a jail sentence for murder. But that was all too late for Jeremy Bell.

Unfortunately, Jeremy Bell's story is not unique. I was at a YMCA in Chester County, PA, a few weeks ago. Our district attorney there, Tom Hogan--the district attorney for Chester County--told me a very disturbing story. They are doing an investigation of the Coatesville School District for alleged financial mismanagement. That is what the investigation was about. But in the course of the investigation, they discovered there are numerous school employees who are felons.

He couldn't reveal many details because it is an ongoing investigation even now, but he was able to share one story. It is a story of a Victor Ford, who was an employee. He had been convicted three times for felony drug dealing. In 2009 he was hired as a special education classroom aide and a seventh grade boys basketball coach. In 2010 he raped a young girl--not at this school. Later, he resigned from the school and has since pled guilty to corruption of minors.

This is appalling, and it is so completely unacceptable anywhere in America. So I have introduced a bill that has broad bipartisan support. In fact, it is a bill that has passed the House unanimously. This should not be controversial.

This bill would insist that schools conduct proper criminal background checks for both existing and prospective employees and that these background checks be repeated periodically. There are five States that don't require any check at all, according to a GAO report, and my State of Pennsylvania requires it only for new hires but never relooks at people who may have been working for the school for many years.

This bill also requires the background check for a criminal history be done for any employee who is going to come into contact with kids, so not just teachers. It could be a coach, a contractor, or anybody who is going to interact with children. There are 12 States that have no such provisions.

The bill would also require a more thorough background check. Some States check their own State's database for criminal activity but they do not look at the FBI's database or a national record of criminality. Our bill would require that.

The bill would forbid knowingly passing on a letter of recommendation to a predator. It is shocking that even has to be contemplated, but it has occurred. Sometimes there is this feeling of, well, let's just make the problem someone else's problem. So it does happen, but it is outrageous and appalling, and it needs to be forbidden. Our bill would do that.

The bill would preclude the possibility of hiring people ever convicted of a violent sexual crime against a child, whether that is a misdemeanor or a felony and a number of other violent felonies, including homicide, child abuse, neglect, crimes against children, including pornography and other serious crimes, and other felonies if they have been committed within the previous 5 years.

The enforcement mechanism basically is to withhold Federal funding for schools in States that refuse to do an appropriate check to make sure our kids are safe. This is just common sense and it has broad bipartisan support.

Again, I thank Senator Joe Manchin for being my cosponsor on this legislation. It is called the Protecting Students from Sexual and Violent Predators Act. It is S. 1596. Again, it passed the House unanimously. But this is more than just a piece of legislation. This is a moral imperative. This is something we know we can do to make our schools safer for our kids, and I think we should do just that.

I am engaged in discussions with some of my colleagues. I hope this will not be controversial and that we will soon get to the point where we can pass this by unanimous consent or hotline this so we get this done. As I said, it has already passed the House. As soon as we pass this bill, it will go to the President and it will be signed into law. I hope my colleagues will join me in this effort and we will be able to get it done soon.

I yield the floor.

I ask for the yeas and nays.

Madam President, today I wish to recognize the Pittsburgh Opera, the seventh oldest opera company in the United States. The Pittsburgh Opera is currently engaged in its 75th season, and I would like to congratulate them on this momentous anniversary. The company started in 1939 when five ambitious women were determined to bring opera to their community. Within a year, these women had assembled musicians, singers, sets, costumes, and lighting, and produced the opera company's first performance, Offenbach's ``The Tales of Hoffman'' at Carnegie Music Hall. Before long, the Pittsburgh Opera Society, under the leadership of general director Dr. Richard Karp, had become a fully professional organization.

The Pittsburgh Opera is not only recognized as an asset to southwestern Pennsylvania, but it is known throughout the international opera community for the fine skill and artistry of its productions. It has welcomed numerous celebrity vocalists over the years, and the company's notoriety only continues to grow and attract more talent. I believe that the Pittsburgh Opera has been undeniably successful in fulfilling its stated mission ``to culturally enrich Pittsburgh and the tri-state area, and to draw national and international attention to the region,'' and I think that the 31,000 Pittsburghers and visitors who attend the opera's productions annually would agree.

The Pittsburgh Opera is also dedicated to fostering the development of future opera talent. The company has established and nurtured a resident artist program that ranks among the top five in the country and has the distinction of being the only program in the United States that trains singers as well as stage directors. These artists present two fully staged productions of their own and also develop a variety of general music programs to perform at public schools, community centers, and libraries.

Six years ago, after nearly 70 years without its own center, the Pittsburgh Opera acquired and renovated the original home of the George A. Westinghouse Air Brake Co. in Pittsburgh's historic Strip District and transformed it into a state-of-the-art home for the development and production of opera. This structure is the oldest LEED-certified building in Pittsburg, and it is a fitting home for an opera company with such a rich history and a promising future.

Again, I want to recognize the Pittsburgh Opera on its 75th anniversary. I wish them nothing but success in the next 75 years.

Mr. President, I rise to discuss briefly my amendment and the underlying bill. But first I want to thank my cosponsors--Senators Coats, McConnell, Coburn, Hatch, Kirk, and Johanns--and I want to thank the bipartisan coalition of Senators who are supporting my approach.

There is a real problem with our flood insurance program as a result of the reforms, and it needs to be addressed. The problem is that, in the process of reforming this program so it would actually be sustainable--so that it actually could become solvent--in the process of making those changes, some people's premiums go up very dramatically and pretty suddenly. The phase-in is very quick and the increase is very high. That is a huge problem, and it needs to be addressed.

The Menendez bill addresses it the wrong way. What this bill does is it does kill the meaningful reform. It completely suspends for 4 years. There is no adjustment of premiums toward an actuarially sound market- based level of premiums that do not require taxpayer subsidy. So we will be going back--oh, it busts the budget, by the way--we will be going back to a system where literally Warren Buffett can buy a home, and as long as he makes it his primary residence, he can continue to have taxpayers subsidize his cost of flood insurance. I just do not know how that is even remotely defensible. But that is what we would be heading back to if we adopt the Menendez bill.

In addition, by throwing out the reform, by throwing out the movement toward an actuarially sound system, we go right back to the insolvent, unsustainable program we had before, which means the NFIP, under the Menendez bill, will that much sooner reach the day when it cannot honor its claims, when the people who have been paying their insurance premiums discover there is no money to honor their claim when the flood occurs because it does not have the reforms that put it on a sustainable basis.

Finally, it is flawed because it cannot become law. This approach is not going to become law. We know that. It is not just me who opposes this approach. The administration does not accept this approach. This is what the Statement of Administration Policy said that was put out this week by the President of the United States about this bill. He referred to this bill specifically and said:

Delaying implementation of these reforms--

referring to the Biggert-Waters reforms--

would further erode the financial position of the NFIP, which

is already $24 billion in debt. This delay would also reduce

FEMA's ability to pay future claims made by all

policyholders.

The Speaker of the House and the leadership in the House feel the same way. They are not willing to throw out the reforms and leave us with an NFIP that cannot honor its claims. They are not going to do it.

So if you really want to do something for the people who are facing these big premium increases, you have to support a program, an approach that actually works. That is why I have offered this amendment. I urge my colleagues to support this amendment.

What we do is simple. We phase in the premium increases gradually. For people facing a big premium increase, we phase it in very gradually. It gives people time to adjust, time to mitigate, time to challenge if the map is drawn wrong. They can do that. We preserve the important, valuable ideas in the Menendez bill, such as the ability to recoup the cost of a successful challenge to a mapping problem for an individual homeowner, also for a community. That is there. That is important.

We preserve the opportunity to have the benefit and force NFIP to recognize the benefit of mitigation measures that have been taken by others. So if your community has built a levee or a dam or some kind of flood mitigation system, with or without Federal money, that needs to be acknowledged, that needs to be reflected. If your community, your home is safer because of that investment, your premium needs to reflect the fact that you have a safer situation. We cover that as well.

Finally, the administration supports this approach. In the very same Statement of Administration Policy, President Obama's administration stated this:

The Administration strongly supports a phased transition to

actuarially sound flood insurance rates.

The Menendez bill absolutely does not do this. My amendment absolutely does because this is what makes sense. This is how we soften the blow. We create a reasonable transition and we maintain a fiscally sound, actuarially sound program that does not bust the

budget. That is what my amendment does.

Finally, let me just conclude with this. There are a lot of Members of this body on both sides of the aisle who have spent a lot of time, especially in recent years, in sincere, concerted ongoing efforts to address one of the biggest challenges we face as a country; that is, the fiscally unsustainable position of our Federal Government, driven by mandatory spending.

We have cut discretionary spending significantly as a percentage of our budget, as a percentage of our economy. Any way you measure it, discretionary spending has been squeezed. Mandatory spending has been almost completely untouched. It is growing far too fast. Recently this body, including every Democrat who supports this Menendez bill, voted for a reform, a reform of one mandatory program that makes it sustainable, makes it viable.

We should not be walking away. If we were at all serious about getting our mandatory spending under control, we should not walk away from this reform. Please, I urge my colleagues, support the Toomey amendment.

I yield back my time.

Mr. President, I think I made my case. I will yield back the remainder of my last minute.

Madam President, I rise to address the amendment I have. I will formally ask to call it up in a few moments, but I wish to say a few words about it. I would like to start with a little bit of background and a reminder of how we got here and the circumstances that brought us to this point.

It all started, of course, with a completely unsustainable National Flood Insurance Program. I don't think there is any dispute that this program is massively in debt, it has been completely under water, it was insolvent, and there was no prospect for this to right itself because of the massive subsidies for homeowners of all stripes.

By the way, in addition to being fiscally insolvent and therefore a huge drain for taxpayers, it has a lot of very bad incentives. When you subsidize homes built in dangerous places, you subsidize and encourage homes to be rebuilt there, homes to be bought in places that are dangerous and costly. So there are problems inherent. The CBO was very clear about this. This program was not going to be able to honor its commitments. That is what happens when a program like this is insolvent and is unreformed: People who think they have insurance for their home end up discovering one day that they don't because of its insolvency.

So along came the Biggert-Waters approach to reform the National Flood Insurance Program and to put it in a position where it would actually be solvent and would actually be able to honor the policies people are paying for.

It was September of 2011 that the Senate banking committee took up the reforms, and they passed it with a voice vote. In other words, there was no dissent. There was no objection to the Biggert-Waters reforms. That was, of course, after many hearings. This had been discussed at length for many years before we got to that point. But we did. We passed it in the banking committee.

In June of 2012--so less than 2 years ago--Biggert-Waters, the flood insurance reform program--was wrapped into another bill. It was wrapped into the MAP-21 Transportation bill and it passed--and it passed with overwhelming support. As a matter of fact, as it happens, every single Democratic Senator who was in the Chamber voted in favor of the Biggert-Waters reforms I think in part because they understood this program needed to be reformed, and I think we all believe this program needs to be in a fiscally sustainable place.

So the final passage of that bill less than 2 years ago required the reforms of Biggert-Waters, which includes as central to those reforms that over time everybody who participates in the National Flood Insurance Program will eventually be paying actuarially sound rates-- rates that actually reflect the risk of their home, so taxpayers wouldn't be on the hook and they wouldn't be subject to the worry about whether this program is going to go away altogether.

That is where we were when, lo and behold, we start to discover that for some people premium increases are going to be very dramatic. I have heard a lot from Pennsylvanians. This is a problem with the Biggert- Waters reform.

One of the problems I suspect a lot of folks did not anticipate was that the premium spikes would be quite substantial and happen over a pretty short period of time. There is a phase-in under the Biggert- Waters reforms, but it is quick, and it is very problematic for that relatively small handful of people who would be adversely affected, because it turns out that the remapping determines that they are in a higher risk profile than had previously been understood or, if they had built their home prior to the initial mappings, they wouldn't be subject to the premium increase. But upon sale of their homes, the premium increase would go into effect, and it would go into effect immediately. And that of course can have a devastating impact on the value of a person's home.

I want to be very clear. There is no question in my mind that if we don't do anything, if we simply leave Biggert-Waters alone, that has an unacceptable impact on people who are adversely affected in the form of premium increases that are way too big way too quickly. And that is not the right outcome. We shouldn't settle for that.

I know cases in Pennsylvania where people are facing thousands of dollars in increase. In some cases it is immediate. In a case where they are going to be selling their home, the new buyer would face that immediately. In other cases, it is phased in quickly.

The Menendez approach--the underlying bill we are debating today-- deals with this, but it deals with this in the wrong way. It deals with this by completely suspending all the reforms. It completely dispenses with the idea that we should move toward an actuarially sound program. It says for 4 years there will be no change in premiums.

It is hard not to see this as a measure designed to kill the reform. I understand it is painful to have any premium increase, but to say that the response should be to abandon any effort to move to a fiscally sound, actuarially based program can't be right. To do that is to completely throw out the reforms that took so many years to get.

And, by the way, it doesn't provide any certainty for the homeowners it is meant to protect--where for 4 years nothing happens, and after the fourth year nobody knows what happens. I know it is the intent of some to continue indefinitely without making any changes, but that is not a solution. This is an insolvent program.

What that means is we will get to the day--relatively soon, according to CBO--when the National Flood Insurance Program will simply be unable to honor the commitments it has made. It will not have the resources. It will not have the borrowing authority. It will run out of money. And people who then get their homes flooded will find it of little comfort that their premium was a little lower when it turns out there is no benefit to be paid, there are no resources for them to rebuild.

So this doesn't work. And it is not just me who observes this problem with the underlying Menendez bill. As a matter of fact, the President of the United States has weighed in on this. I have a quote here from a Statement of Administrative Policy they put out 2 days ago directly referring to this bill, identifying it by number. This is the bill they are talking about, the Menendez bill. One of the things they say is:

Delaying implementation of these reforms would further

erode the financial position of the NFIP, which is already

$24 billion in debt. This delay would also reduce FEMA's

ability to pay future claims made by all policyholders.

This is the President of the United States. His administration has looked at the Menendez bill, and this is their conclusion: This doesn't work. This doesn't work for the policyholders. It doesn't work for taxpayers. It doesn't work for anybody.

There is another problem I would point out with the Menendez bill: It wouldn't work if it were to become law for these reasons, but it is not going to become law. The administration has made it clear they don't support it. The Speaker of the House has made it abundantly clear he will not put a bill on the House floor that guts the reforms of Biggert-Waters. The House chairman of the banking committee, who has jurisdiction over this, has made it abundantly clear: He is not going to move a bill that does away with these fiscal reforms.

If your goal is to do something to help homeowners who are facing premium increases, a vote for the Menendez bill does nothing, because that bill is going nowhere. The administration doesn't support it. They have said so. The House is not even going to take it up. So if your goal is to do something for constituents who are facing a big premium increase--and, frankly, that is a big part of my goal--the Menendez bill doesn't cut it. That is going nowhere.

What the administration said would work and what House leadership is willing to work with us on would be to phase in these premium increases more gradually, because everybody acknowledges the premium increases are occurring too quickly, and that needs to change.

This is another quote from that same Statement of Administration Policy on the same bill. What they said was:

The administration strongly supports a phased transition to

actuarially sound flood insurance rates.

They didn't refer to my amendment, but this is exactly what my amendment does. It phases this in gradually so as to minimize the pain, allow people an opportunity to adjust, allow people the time to maybe mitigate the risk and still maintain the integrity--the fiscal integrity--of the program so it actually can pay the claims that surely will be submitted.

Let me run through quickly exactly what the amendment does and doesn't do, because there has been some confusion about this.

Our amendment actually retains very significant portions of the underlying Menendez bill because parts of it made a lot of sense. Section 1 is the title. Section 2, definitions. Unchanged. Section 3 is where we phased the premium increases in gradually rather than suspending them altogether. That is the big difference. Section 4 of the Menendez bill is an affordability study and report, requires FEMA to complete this study--as Biggert-Waters does--within 2 years of the enactment of the bill. We leave that intact. I think that is a good idea. We need that. My amendment would not affect that whatsoever.

The Mendendez bill also provides some additional funding for the affordability study. It lifts the cap that was set before. My amendment wouldn't change that. I think we need to lift that cap.

Section 6. This is a measure that provides funds to reimburse homeowners when they challenge the redraw. So when a new map comes out and someone's house is deemed to be in a more risky place and therefore the premium is higher, a homeowner can challenge that. If the homeowner wins, under the Menendez language--which I support and stays in this bill under my amendment--the homeowner would be reimbursed the cost of that challenge.

Senator King from Maine had a very good suggestion, which is: If a community chooses to challenge the mapping because they think there was a mistake made, they think it was inaccurate and it adversely affects them, that community too would be reimbursed for its costs if it turns out to be successful in its challenge. I agree with that. We have incorporated that into our amendment.

Section 7 addresses the flood protection system. This is a very important part of what the Menendez bill does and I fully support it, and that is this: Under current law, one of the problems is in order for a community or a homeowner to fully benefit from risk mitigation that they may have done--a levee that may have been built or a dam or some other risk mitigation. In order to fully benefit from that, the Federal Government has to have paid for some portion of it. That is ridiculous. What difference does it make who paid for it? If it has been built and it is providing protection, that is all that should matter. This language would achieve that, the Menendez bill achieves that, and my amendment incorporates that. We keep that intact as well.

Section 8 addresses floodproofed residential basements, addresses that. Our amendment doesn't change that.

Section 9 creates a designation of a flood insurance advocate. Again, my amendment makes no change to that.

Section 10. Senator Blunt had an amendment that would change the remodeling trigger for loss subsidies from 30 percent to 50 percent of a home's value. We incorporate Senator Blunt's amendment into our own, so that is there.

Senator Hagan had an amendment to exempt escrow requirements for flood insurance payments. We fully incorporate that into my amendment as well.

Senator Rubio had an amendment also that was accepted by the managers. It is in ours.

What it comes down to, the difference between my amendment and the Menendez approach is one keeps us on a path of reform, keeps us on a path to an actuarially sound, fiscally responsible flood insurance program, whereby the flood insurance program is actually able to pay its claims, and the Menendez bill dispenses with it. It dispenses with the most important, most fundamental reform. The other part that we do is we soften the blow. If your concern is with these homeowners who are facing these huge premiums, my amendment is the only way we are actually going to achieve that help for those folks because this is the only legislative approach that has a chance of actually legislatively becoming law.

By the way, in addition to its problems with the other body and the administration, the Menendez bill is subject to a budget point of order because it increases our deficit and forces more government borrowing. It is subject to a point of order. I don't know that it can sustain that. I don't know it can defeat a budget point of order and that is an important issue.

Because our approach is fiscally sound, we are not subject to a budget point of order. What we do is we say the longer delay in the phase-in of the premium increases costs the flood insurance program some money until you get to the point where people have reached the level where they are paying actuarially sound rates, but we fully offset that with a very modest surcharge on all flood insurance policies in the country. It is about $40 per year in the first year, the most expensive year, unless your income is over one-half million dollars a year, in which case it is about $80, and that is it. It goes down after that because over time, when the higher premiums phase in, the loss to the program is diminished and therefore the surcharge goes down with it.

But let's be very clear. The maximum that anybody would be paying is about $40 a year unless their income is over one-half million dollars a year, in which case it would be $80 a year.

I will wrap up. I think we cannot continue to ignore all of the fundamental mandatory spending problems we have. When we actually go through a long and painful and deliberative systematic process to reform a program, for us to then walk away within 2 years and say never mind, we are not going to have any reform, is just so disappointing and irresponsible. We have bigger challenges facing us. If we cannot deal with this, I don't know what we are going to do.

I fully acknowledge we have to soften the blow for people who are going to face much higher premiums and my amendment does that. The way we do that is by ensuring nobody's premium could go up by more than 25 percent. In the case of people who would face a big increase, under my approach it will take many years of gradual phasing in before they would actually be forced to pay that higher actuarially sound rate. If they think the rate is unfairly high, they can challenge it or they can leave the program and buy private insurance. They can do that. But to suggest we are going to just do nothing after having put the reforms in place I think would be a big mistake.

There are a lot of groups that are supporting my amendment. I have a list I am going to run through quickly:

Natural Resources Defense Council, National Wildlife Federation, The Nature Conservancy, Taxpayers for Common Sense, National Association of Mutual Insurance Companies, Reinsurance Association of America, American Rivers, National Fire Protection Association, National Leased Housing Association, the R Street Institute, American Consumer Institute, Americans for Prosperity, Americans for Tax Reform, the Coalition to Reduce Spending, the Cost of Government Center, Council for Citizens Against Government Waste, Freedom Works, National Taxpayers Union, Taxpayers for Common Sense, Taxpayers Protection Alliance.

You can see there is a combination of fiscal watchdogs, folks who are very concerned about fiscal prudence, as well as people who are concerned about environmental integrity. There are other groups coming on continuously.

As I mentioned, every Democrat who voted on the Biggert-Waters reform voted in favor of it. What my amendment does is it preserves the integrity of the reform while softening the blow for the people who will be affected by it.

I think this is a very important, although modest, step in doing these two things.

Amendment No. 2707, as Modified

I ask unanimous consent to set aside the pending amendment so I may call up my amendment, No. 2707, with the modification at the desk.

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

Mr. President, I rise to address this situation we find ourselves in on the unemployment bill.

I have to say that this most recent episode in which the majority leader refuses to permit an open process, refuses to allow debate, refuses to allow the kinds of amendments Republicans would like to offer to improve this bill is very disturbing and is now part of a very well-established trend.

It is actually shocking to me that over the last 6 months, since July of last year, through today, this body has voted on a grand total of four Republican amendments--four recorded votes on Republican amendments in 6 months.

Under every previous majority leader, under every previous majority the Senate didn't work this way. It would be routine to have four votes in a morning before we broke for lunch. We have had four votes on our ideas that have been permitted in 6 months. So we are systemically being shut out of the process.

What is particularly maddening about this is that my colleagues on the other side of the aisle know full well that the votes are there to pass an extension of unemployment insurance. They know it. If they would allow an open amendment process, we would have a few amendments, we would have a debate, and we would have some votes. In the course of an afternoon, maybe two, we would have finished up last week and we would have passed an extension of unemployment benefits.

Evidently that is not the goal of my colleagues on the other side of the aisle. They insisted on making sure we could not engage in this debate, offer the amendments, and do this in a way consistent with what the American people want us to do, which is move forward in the most sensible way possible.

I have an example this morning of the kind of very modest reform we would like. As for myself, I think that we should extend unemployment benefits for certain Americans who are in the really tough circumstances in which they find themselves provided that the cost of doing so is properly offset with a legitimate offset so we don't simply add still more to our excessive deficit and debt; that we have some modest reforms; that we begin the process of fixing a program that doesn't work. If this is working, then why are there so many Americans who are unemployed for such long periods of time? Clearly, this program is not working.

Let me give one example of an amendment I think most Pennsylvanians think is common sense. It is an amendment Senator Coburn offered, and it would simply end Federal unemployment benefits for people who have an income of over $1 million a year.

My guess is that most Pennsylvanians are shocked to discover that we extend unemployment benefits to millionaires. And I am not talking about a net worth of $1 million, someone who maybe has a farm that is worth $1 million on paper but they might have no income. No. I am talking about people who actually have earned income of over $1 million and then they stop working and start collecting unemployment benefits. I think most people think that is ridiculous.

It is not as isolated as we may think. In 2011 there were over 3,200 households that reported income of over $1 million, and yet they were paid $30 million in unemployment benefits. In fact, there were over 100 households that had income of over $5 million. And taxpayers are paying them unemployment benefits? This doesn't make sense, and it doesn't make sense to Members of this body.

In April of 2011 the Senate had a vote on the substance of this very amendment--ending unemployment benefits for millionaires and multimillionaires--and the vote was 100 to 0 in favor of making this modest reform to this program. Now, if we did actually enact this reform, it would save about $300 million over 10 years, which could go to paying for benefits for the people who actually need extended unemployment insurance.

Of all of the Members of the Senate who are here today and were here at the time of this vote in 2011--that is the vast majority--everyone agreed. There is no dissent on this. There are bipartisan cosponsors of this amendment, Democratic and Republican alike, who recognize this is just common sense. So despite the fact this is not controversial, that it is germane and relevant, that it is a modest reform that makes sense and would save money and would free resources to pay unemployment benefits for the people who truly need it, despite all of those facts, we are blocked. We are not allowed to offer this amendment on the Senate floor.

We attempted it yesterday. The minority leader, the senior Senator from Kentucky, asked unanimous consent to offer this amendment. That consent was denied. So then he moved to table or to eliminate, if you will, the amendments the majority leader uses to block our opportunities to offer our own, his blocking amendments, and the majority party defeated that attempt to do away with those blocking amendments. As we sit here this morning, the majority leader continues to block our opportunity to offer any amendments, even a modest, commonsense amendment with bipartisan support that passed this body 100 to 0.

I am going to make one more attempt to offer this amendment because I cannot for the life of me understand why we cannot have a vote on this little bit of common sense.

I rise to offer the Coburn amendment, No. 2606, to S. 1845.

I move to appeal the ruling of the Chair that the Coburn amendment is not in order.

I suggest the absence of a quorum.

Mr. President, I thank my colleague Senator Casey for organizing this brief tribute that is so much deserved by the servicemembers we are going to be acknowledging in a few minutes.

I would like to begin by extending my deepest condolences to the families, friends, loved ones of these true Pennsylvania heroes and the lives that they led and the cause for which they died. Those men represent all that is great about this great country.

Some enlisted right after graduating from high school. During those very tough and grueling days and weeks in basic training, I suspect they never heard of the places in Afghanistan where they would make this sacrifice.

These Pennsylvanians, of course, join a long list of soldiers, sailors, airmen, and Coast Guard members who have given their lives for this country, to include those who gave their lives in World War II, the Korean war, the Vietnam war, of course the ongoing war against violent radical Islamists all around the world.

It is no accident that Pennsylvania has suffered so heavily in this conflict, as it has in every other conflict in our Nation's history. I think it is because in the towns across Pennsylvania, towns and cities such as Tafford and Mohnton, there are certain values that are deeply rooted in those communities: importance of family, importance of faith, the importance of serving this Nation. There is a deep conviction that freedom is worth defending, and a belief that a cause worth fighting for is not just someone else's responsibility. These are the values that have helped shape these service members, their families, their churches, their houses of worship, and their communities. These values are exemplified in the lives of our fallen who will forever be honored by our great Commonwealth for their service to this country.

I will begin reading the names of the men who made the supreme sacrifice for freedom last year in this conflict, and Senator Casey will complete the list:

CWO Matthew Paul Ruffner, U.S. Army, Tafford; CWO Jarett Michael Yoder, U.S. Army, Mohnton; SSG Marek Soja, U.S. Army, Philadelphia.

I yield the floor.

Mr. President, I rise to speak on the topic of the nomination of Cornelia Pillard to the DC Circuit.

Before I go to that specific topic, I wish to address a broader topic, which is how we got in these circumstances in the first place and why we are here tonight, why we are having this discussion, and how this nuclear option, as it has been described, has come about.

Most immediately was November 21, 2013, just a few weeks ago, when the majority party in the Senate unilaterally decided to break the rules of the Senate, violate the rules and rewrite the rules themselves. Despite the fact the rules clearly say it takes a two- thirds majority of the Senate to do that, they decided to disregard that and change the rules themselves. So they did that on November 21, 2013.

What they specifically did, the specific rule change they imposed unilaterally on the Senate, was to completely eliminate the opportunity for the minority party to have any ability to be a check or a balance to the process of selecting and confirming the nominees of a given President to the judiciary of the United States of America, the Federal judiciary, or to the executive branch.

It is a little bit sweeping, but that is exactly what has been done. This is contrary to the entire history of the Republic, where this has never been done before, and it applies to lifetime appointees. Of course, Federal judges, as we all know, once they are confirmed, they hold that office until they decide they are done--at whatever age that might be. It is a lifetime appointment. Unless they commit an impeachable offense, there is nothing anybody can do about it.

One of the things that is interesting about this decision by our Democratic colleagues is they decided to eliminate the rights the minority party has had in the Senate for centuries. They decided to do that despite the fact that 20 of them warned vehemently against engaging in this very activity just a few years ago. As a matter of fact, none other than the Senate majority leader who personally led this effort, Senator Reid, said in 2009:

The right to extend the debate is never more important than

when one party controls the Congress and the White House. In

these cases, a filibuster serves as a check on power and

preserves our limited government.

In 2009 the senior Senator from New York said:

The checks and balances which have been at the core of this

Republic will be evaporated by the nuclear option. The checks

and balances say that if you get 51 percent of the vote, you

don't get your way 100 percent of the time.

That is what our friends, the leadership of the majority party, the Democratic party, said very recently.

So you have to ask yourself, why would they do a complete reversal? Why would they do a 180-degree switch? Why would they go from a position of absolute vehement opposition to the nuclear option that denies the minority party any say whatsoever in the confirmation of Federal nominees--why would they go from that to where they were just a couple weeks ago when they executed their plan and unilaterally broke the rules so they could change the rules to inflict that very policy on the current minority party, the Republican Party?

We can look at what the majority leader said at the time. One of the things he said on November 21, 2013, the day on which the majority leader made this change:

There has been unbelievable, unprecedented obstruction. For

the first time in the history of our Republic, Republicans

have routinely used the filibuster to prevent President Obama

from appointing his executive team or confirming judges.

That is what Senator Reid has asserted as his justification for this unilateral, unprecedented deprivation of minority party rights. In fact, just this evening Senator Reid was back on the Senate floor, and he used the word ``obstructionism'' about a dozen times. So I think it is worth considering what has actually happened. What does the record show? Let's go back to March 2011 because that is an interesting moment in this discussion about how and whether and when and under what circumstances to confirm nominees.

In March 2011, Republicans decided that, you know what, it probably would be a good idea for the President--President Obama at this time, obviously--to be able to get a very large number of nominees appointed and confirmed without even having to go through the Senate process. The legislation is called the Presidential Appointment Efficiency and Streamlining Act of 2011. Under this act, thousands of appointees from the executive branch were simply no longer subject to Senate confirmation.

So what Republicans did in March 2011--far from obstructing anything--was to say: Mr. President, here is a huge category of Federal nominees, and we won't even require a vote. We won't even require Senate consideration. You get these, all of them. You nominate them, they are done, period.

Does that sound like obstruction? Not to me. It was passed by a Republican-controlled House, supported by Republicans in the Senate, and signed into law.

So today the law of the land, as a result of Republican cooperation, is that this President enjoys a luxury no previous President has had-- this huge category of nominees who are solely, exclusively at his discretion. It doesn't matter if a single Senator or every Senator strongly objects. It doesn't matter. It is totally irrelevant.

So I think we ought to consider that legislation in the context of this discussion. But let's take a look at those nominees who remain subject to and who prior to this legislation have been subject to Senate confirmation.

One category is Federal judges. We have many district courts around the country. So far, the President has nominated 174 candidates to Federal district courts around the country. Of the 174 the President has nominated, I wonder if you could guess how many have been confirmed. I will tell you how many have been confirmed--174. There have been 174 confirmed and zero rejected. At the circuit court level, prior to the recent episode, the President had nominated 41 candidates to the circuit court. Of the 41, 39 had been confirmed. So the total of judicial nominees President Obama has sent to us in the Senate is 217, and 215 have been confirmed and 2 have been objected to. By my math, that is something like 1 percent objected to, 99 percent confirmed. This doesn't strike me as unreasonable obstruction.

But judges aren't the whole story. There are also the nonjudicial nominees, and we ought to consider those as well. So far, at least as of when we compiled this data, the President has nominated 1,488 individuals to various Federal spots throughout the executive branch-- the agencies, his departments, and so on. Of the 1,488, 1,486 have been confirmed and 2 have been blocked by Republicans. That would include 100 percent of the President's Cabinet

nominees and 100 percent of virtually every other category but not every last one. If we add those together, the total of the President's nominees, both judicial and nonjudicial, 1,707 confirmed, 4 rejected. So that works out to something like the Senate has confirmed with Republican support--because prior to the rule change, it couldn't happen without Republican support--the Senate has confirmed 99.9 percent of President Obama's nominees to judgeships and to nonjudgeships. You have to ask yourself, could that possibly constitute outrageous obstruction, unprecedented obstruction, as Senator Reid has said, preventing President Obama from appointing his executive team or confirming judges? How can this possibly be?

The majority leader came down to the Senate floor on the date on which he decided to unilaterally change the rules by breaking the rules and he cited as an example the outrageous case of Chuck Hagel, who had served in this body. Chuck Hagel. Whatever became of Chuck Hagel? Oh, that is right, he was confirmed to be Secretary of Defense, as has virtually every single other nominee the President has proposed.

The leader seemed to think it was completely unreasonable that Republican Senators would demand some information from former-Senator Hagel along the way. It seems to me the fact that he is a former Senator should not change his obligation to provide the information the Senate requests, and when he provided that information, he was confirmed easily.

So it seems pretty clear to me, it seems pretty indisputable that this really never was about obstructionism. A 99.9-percent confirmation rate? It just can't be about obstruction. It is clearly not.

So we have to ask ourselves, if it is not the case that Republicans have been obstructing the President's team--and it is clearly not--then why did the majority in this body decide to unilaterally change the rules and deny the minority the opportunity to have any say whatsoever on the confirmation process? Fortunately, some of our colleagues on the other side have explained this for us. They have told us why they made this change. But let me put it in a little bit of context.

We are in a situation here where we have a divided government. It is true that the American people elected President Obama to a second term, and elections have consequences. But on the very same day, the American people reelected Republicans to be the majority party in the House. And all elections have consequences, not just Presidential elections.

So the reality is that the very liberal agenda President Obama would like to pursue is very difficult. He can't get most of the liberal things he wants to do, whether it is some kind of cap and trade or card check or his war on coal. This is well outside of the mainstream of where the American public is, and it is not where the consensus is in the House of Representatives. So his legislative agenda isn't going anywhere in the House. The administration understands that very well, the President understands that very well, and so do the members of the majority party here in the Senate.

What do you do if you have an agenda that is out of step with the American people and can't pass in a duly-elected House of Representatives? Well, some people think the thing to do is do an end run around the legislative body, bypass the legislation, and use an undemocratic--I would argue unconstitutional--process and have unelected, unaccountable bureaucrats impose by fiat and through regulation that which you cannot achieve through legislation.

Of course, that is completely inconsistent with our Constitution, with the way our Federal Government is intended to operate, and with the principle of the separation of powers. It would require pursuing an agenda that is out of step with the American people and without the consent of Congress, which, of course, is supposed to be a partner with any executive branch, with any President in pursuing any agenda.

Of course, our Founders foresaw the danger of an Executive who would try this sort of thing and would do an end run around the legislature and try to use the enormous power at the disposal of the Executive, who has massive staff and huge agencies and all kinds of resources, and understood that it is quite possible that you could have an Executive who would try, for instance, selective enforcement of laws, maybe unilateral suspension of laws, as we have seen this administration do, writing rules and regulations that are inconsistent with the laws. These are all behaviors we could anticipate.

Our Founders did. They did. They anticipated this could happen. So what they did is they built a system that would have some checks and balances, that would provide some limitations. Among the other ways they did it--there were many ways this was done, but one of them was the separation of powers and specifically the creation of a judiciary which would be a referee on whether, for instance, a given agency, a given regulator, was in fact complying with the laws or whether they had gone rogue, whether they had gone overboard, whether they were overreaching, whether they were pursuing some agenda for which they did not have authority.

These courts play an absolutely vital and I would say completely indispensable role in giving individual Americans their last hope in seeking to preserve their liberty against an unfair, arbitrary, and even unconstitutional executive overreach. That is what the courts do.

As it happens, there is one particular court that plays a disproportionate role in this process of adjudicating and officiating over Federal regulations. It just so happens that by virtue of its location, a big majority of cases in which an American citizen challenges a regulation because that citizen believes this is a regulation that is unfair, unconstitutional, illegal or otherwise not consistent with our laws--the venue where this ends up finally getting adjudicated is very often the DC Circuit Court of Appeals.

This has become a bit of a problem for the administration and some of our friends in the Senate because the DC Circuit Court of Appeals has become a bit of an obstacle to some of the ambitions they would like to impose. One example, for instance, is last year the DC Circuit Court of Appeals struck down for the second time in 4 years the EPA's regulations on cross-State air pollution. This is a complicated story. We do not have to get into all the details but, bottom line, these are regulations that would among other things have a devastating impact on States such as Pennsylvania that have a big coal industry and that have a big utility industry that uses coal to fire generators. The court found that the EPA had gone beyond its legal authority. The statute clearly says what the EPA may do and may not do. They were going beyond what they are permitted to do and the DC Circuit Court of Appeals said so.

That is not the only case in which the DC Circuit Court of Appeals has ruled in ways that are problematic to some of our friends here. Another was a decision they made regarding recess appointments. You may remember this. A while back, the President made a very extraordinary decision. The President decided for the first time in the history of the Republic that it was up to him to determine when the Senate was in recess and when it was not; that was his unilateral decision to make. No other President ever took it upon himself to decide it was his power to determine when a different branch of government was in recess, but this President did. He said that is his decision. So I guess by his logic he could decide when we are out on lunch, that is a recess; out on the weekend, that is a recess; that is up to him by his standard. So he created an opportunity for himself to make appointments that he knew would not be confirmed in the Senate or were unlikely to be confirmed.

There was bipartisan, in some cases, concern about some of these folks. He went ahead and made the appointments. The DC Circuit Court of Appeals said actually, no, the Constitution is pretty clear. You do not have that authority.

These are just a couple of examples where a nonpartisan, completely competent, and very highly respected appellate court made decisions about Executive behavior. This has not sat so well with some of our colleagues.

Why do I bring this all up? Because this is what this is truly all about. This

is not about Republican obstructionism. What this is about is our Democratic friends want to pursue a very liberal agenda. They cannot do it through legislation so they intend to do it through regulation. As they overreach and go beyond the legal authority, which they have already done and intend to continue to do, the victims, American citizens who are victims of this overreach, are going to challenge these rules and regulations in court. When they do, they are going to end up in the DC Circuit Court of Appeals.

Some of our friends want to do whatever it takes to make sure they can win those decisions. Those are not just my words. The senior Senator from New York complained about the DC Circuit. He was on record claiming the DC Circuit ``overturned the EPA's ability to regulate existing coal plants.''

OK. He further went on to say, ``The SEC cannot pass rulings unless they do what is called a cost-benefit analysis.'' That was another complaint the senior Senator from New York made about the DC Circuit.

So he told a group of supporters that in order to reverse this, Democrats will ``fill up the DC Circuit one way or another.''

I think this is about as clear as it could be. There are people who do not like the decisions coming out of the court and so their intention is to pack the court with people who share their political views and will therefore sustain decisions about the advancement of their liberal agenda.

But it was not only the senior Senator from New York who made these comments. The majority leader himself explained this as well. Referring to the DC Circuit Court he said:

They're the ones that said . . . the president can't have

recess appointments. . . . They've done a lot of bad things,

so we're focusing a very intently on the D.C. Circuit. We

need at least one more. There's three vacancies, we need at

least one more and that will switch the majority.

Could there be a more direct, straightforward statement about what their real intent is? Their intent is to pack the court with partisan people who will give them the decisions they need so they can advance the agenda they want when it is blocked through the ordinary legal and constitutional legislative process. That is what is going on here. That is why we are here tonight. That is what is taking place.

When Republicans decided that we do not think it is a good idea to manipulate courts this way, to populate them with partisans, to try court stacking for the purpose of advancing an agenda, that is when our Democratic friends decided to go nuclear. The pity of this is our Founders had enormous foresight. They were absolutely brilliant. They constructed an incredible document, a series of documents that have guided this Republic for centuries now. They anticipated a lot. I do not think they anticipated that the leader of the majority party in the Senate would just turn it over to the control of the executive branch and make this institution just a rubberstamp for what the President wants to do. But that is where we are.

What is the practical consequence of all this? Why is it that this is such a terrible idea? Let me touch on a few of the reasons. There are a lot of reasons I think this is a disastrous policy, but let me touch on a few of them. One result of this is undoubtedly a further polarization, in fact a radicalization of the Federal Government.

The second is that as a direct result of this unilateral decision and the ability now of our Democratic friends to simply steamroll nominees through without any consideration by the minority party, we will have to expect fluctuations, volatility in administrative and regulatory rulings.

Then last and probably most disturbingly, I think there is a real danger that a justice system that has been the envy of the world and is recognized for its impartial and nonpartisan integrity may very well be increasingly viewed as a partisan and biased one.

Let me explain this a little bit, the idea that we have a more radicalized Federal Government. For 200 years, a President has always known that in order to nominate and to get confirmed one of his nominees he would need broad support in the Senate. It would not fly if he selected someone who was only appealing to a few or even a very small majority. So what does this do? That forces any President, whether it is a Republican or a Democrat, to nominate people who would have that broader bipartisan appeal. Frankly, Presidents of both parties are always under pressure from their respective bases to pick the most extreme people. That is what pleases the base of either party. It has always served the Republic well that a President can say I have to get that person confirmed through the Senate and if I pick the most extreme people that is going to be a problem. The fact that a President has needed that bipartisan support has essentially required that a President look for people who represent a broad consensus across America.

In this postnuclear Senate, that moderating influence is gone. There is no such influence anymore, and I think it is a safe bet that we can expect more extreme nominees. We have already seen some evidence of it. The Hill ran a story recently. It reported that now that the nuclear option has been detonated, far left interest groups are ``pressing President Obama to select left-wing nominees for key regulatory and judicial posts, nominees who could never have been confirmable before.'' That is no surprise. That is exactly the kind of consequence we should expect.

The second consideration is stability in rules and regulations that are promulgated by the various regulators and agencies. I hear every day across Pennsylvania one of the grave concerns of business that is hampering our ability to have a stronger economy, to have the kind of growth we would like to have, is uncertainty about regulations.

It is true and it is important. Guess what. It is likely to get worse because, first of all, this huge administrative, bureaucratic State that we have devolved into recently touches on virtually every aspect of our life and there are hundreds of agencies, boards, and commissions that the administration controls. What is likely to happen now is that if the White House and control of the Senate changes parties, we are likely to see big swings in the ideology and the partisanship of these folks because they were not consensus candidates in the first place, right. Given that now we have a situation where a majority party just steamrolls their way through whomever they want and has every incentive to go to the extremes, when they lose an election what are we going to have? We are going to have the exact opposite swing. So for businesses trying to make a decision about whether to invest in America to grow their company, to hire more workers, they are going to worry and wonder: What will the regulatory regime look like in just a few years, depending on how the election goes? It is much less predictability, less stability, and the direct result of that is going to be less investment and fewer jobs. This is not good news for our economy at all.

Finally, my concern is that for similar reasons we are going to see a diminishing of the judiciary, of the status of the judiciary among the American people, of the credibility, of the respect the American people have had.

A moment ago I said I think one of the great strengths of the American Federal Government throughout our history has been, generally speaking, that--and there have been exceptions, and there will always be some exceptions--by and large at all levels the American people have had a pretty high respect for the judiciary. They respect the fact that our judges are capable and competent and tend not to be partisan hacks. They tend not to be polarizing political figures who are trying to advance an agenda. They have tended to be men and women of ability and integrity who were calling balls and strikes the way they see fit. They realize they are the umps and referees; they are not the players on the field. They are not there to advance an agenda; they are there to officiate based on the law and the Constitution. That has been the case.

The reason our judiciary has been so respected is because it is nonpartisan. It is independent of the other branches of government, and it has behaved that way. The American people have the confidence that they can go before a Federal judge and receive a fair and unbiased hearing whether the judge is a Democrat, Republican, liberal, or conservative. The fact is that most Americans don't worry and say: Wait a minute. Is that judge a Republican? It

doesn't occur to most people to ask that question, nor should it because it doesn't matter in most cases.

This respect for the judiciary that the American people have is extremely important. In Federalist 78, Alexander Hamilton talked about the importance of this deep respect for the judiciary. He said:

The judiciary is beyond comparison the weakest of the three

departments of power.

Whereas the executive branch has the military and Congress has the power of the purse, the judiciary cannot enforce its own decisions. It relies on Americans' respect for it and willingness to enforce its rulings as essential.

The fact is that the deep respect the American people have had for the judiciary has allowed our courts, including the Supreme Court of the United States, to issue decisions that have profoundly affected our lives, profoundly changed our society, and so many times so much for the better. A famous example would be Brown v. the Board of Education, which reversed the separate-but-equal doctrine. It ended the southern government laws that banned White and Black persons from associating with each other. This created a certain upheaval at the time, but it stuck, and part of the reason it stuck was because the public saw that this was a decision by a nonpartisan court that was acting as an arbiter of our Constitution. The respect the American people had for our courts was a big part of why a contentious decision quickly became accepted and became part of our fabric.

Alexander Hamilton explained that the judiciary's integrity and independence are absolutely critical; otherwise, Americans' ``confidence'' in the courts will be replaced by what he described as ``universal distrust and distress.'' He said:

The benefits of the integrity and moderation of the

judiciary . . . must have commanded the esteem and applause

of all the virtuous and disinterested.

Considerate men of every description ought to prize

whatever will tend to beget or fortify that temper in the

courts: as no man can be sure that he may not be to-morrow

the victim of a spirit of injustice, by which he may be a

gainer to-day.

The inevitable tendency of such a spirit is to sap the

foundations of public and private confidence, and to

introduce in its stead universal distrust and distress.

When a President, with the cooperation of a legislature, rubberstamps judicial nominees for the purpose of ratifying a political agenda--when this happens, the American people's trust in the judiciary will be badly damaged, and we are at the threshold of that moment now. Of course, it also completely undermines our whole system of separation of powers. The fact is that when judges are seen as being at the beck and call of a legislature, a President, or a party, our individual liberty is simply not secure.

Again, to quote Hamilton:

The general liberty of the people can never be endangered

from [the courts] . . . so long as the judiciary remains

truly distinct from both the legislature and the Executive.

He goes on to say:

Liberty can have nothing to fear from the judiciary alone,

but would have everything to fear from its union with either

of the other departments.

When you have one party ruling and completely controlling this process--and controlling it for the purpose of advancing a partisan agenda--that strikes me as exactly the danger Hamilton warned us of.

So where does that leave us in this regard? I don't think we are doomed, but I do think it is very important that the American people rise and make their objection to this clearly heard. It is important that the American people contact their Members of Congress. They need to exercise their ultimate control of this process at the ballot box and urge the Senate majority to give up its plan to use the courts to achieve a legislative agenda that they cannot get through a duly- elected Congress that represents the American people.

By the way, there is another big incentive for our friends to want to pack this DC Circuit Court, and that is because the front-burner and most prominent policy and political issue of the day is largely going to be litigated right there very soon. The DC Circuit is going to hear a very important case that goes to heart of ObamaCare. The DC Circuit is hearing a case about how the IRS has chosen to implement some rules. The law is very clear. The law unambiguously states that the subsidies ObamaCare has designed for many people who buy health insurance through their exchange--those subsidies will only be available through the State exchanges.

As the Presiding Officer knows, ObamaCare contemplates two different categories of exchanges through which people are forced to buy the mandated insurance. There are State exchanges, and in those States that don't operate an exchange, there are Federal exchanges. Well, the law says that the subsidies are available only for the people who purchase their health insurance through the State exchanges. What the administration is attempting to do is to completely disregard the law and make the subsidies available to people who buy through either the State exchange or the Federal exchange. That is not what the law says. I understand that this administration routinely disregards the law, but that is why we have an independent judiciary--to impose a check when they do this.

There is a legal scholar by the name of Mike Garvin who is following this case closely. He has explained what is going on. He said:

Congress knew that the federal government cannot require

the states to establish or operate Exchanges, so it offered

subsidized insurance premiums for residents of states with

State-operated exchanges to entice states to undertake this

responsibility. Instead, fully 33 states--from Texas to Ohio

to President Obama's and Vice President Biden's home states

of Illinois and Delaware--have said ``thanks, but no

thanks.'' Instead, these states have chosen to shield their

businesses and residents from the worst of the potential

``train wreck.''

That creates a bit of a problem for the administration because with so many States choosing not to participate in this disaster and having only a Federal exchange, if they actually comply with the law they signed, then there would be a lot of people who would not be eligible for the subsidy. If the DC Circuit Court of Appeals were to simply follow and impose the law, then that would create a huge problem, which strikes me as yet another incentive for why perhaps we have gone through what we have gone through over the last couple of weeks-- because it is so important for our friends on the other side to get the decisions they want out of this court.

All of this brings me to what we really ought to be working on. By the way, all of these nominees who are before us and tying us up this week are all entirely at the choosing of the majority leader. None of these are essential, none of these are urgent, and none of these are emergencies. We could be passing legislation, such as our Defense authorization legislation. We have a budget deal that could be on the floor. We have a farm bill that is overdue. We have a lot of things we could be doing. We could be trying to deal with the enormous problems caused by ObamaCare, but we are not. We are dealing with nominees instead.

I think we ought to focus on the problems that ObamaCare is causing, and I will admit that sometimes it is hard to know where to begin because these problems are so huge. I will start with the taxes ObamaCare has been imposing on us and continues to impose on us. It is a pretty extraordinary list. As best we could tabulate, there are something like 20 different taxes that were created as part of ObamaCare. There is over $1 trillion worth of taxes to burden this economy and diminish our opportunities to grow and invest and create the jobs we need at a time when our economy is weak and needs an opportunity to recover. Instead, we saddle it with all of these taxes.

For instance, we have an excise tax on charitable hospitals.

We have a tax in the form of the codification of the economic substance doctrine. It is a tax hike of $4.5 billion that allows the IRS to completely disallow legal tax deductions.

We have the black liquor tax hike, which is a tax increase on a type of biofuel.

We have a tax on innovator drug companies.

We have a $2.3 billion annual tax on the industry. We have a Blue Cross Blue Shield tax hike, which is a special tax deduction in current law that would only be allowed if 85 percent or more of the premiums are spent on clinical services. That is a tax increase which went into effect in 2010.

We have a tax on indoor tanning services.

We have taxes that took effect in 2011. There is the medicine cabinet tax. Americans are no longer able to use health savings accounts or flexible savings accounts or health reimbursement pretax dollars to purchase nonprescription over-the-counter medicine. So the inability to use these taxpayer accounts for legitimate medical needs is a tax increase.

We have the HSA withdrawal tax hike.

Going into effect in 2012, we have the employer reporting of insurance on W-2.

In 2013 we have a surtax on investment income. We have a whole new 3.8-percent surtax on investment incomes, and this can only have the effect of diminishing investment in our economy. It diminishes the return on investment, diminishes the incentive to take a risk and start a new business, provide capital to a new business, grow a business, which is all due to ObamaCare.

We have the hike in the Medicare payroll tax.

One of the most egregious of them all--we have the tax on medical device manufacturers. This one is particularly egregious because it is so badly designed on top of being ill-conceived. This is a 2.3-percent tax on the sale of medical devices. Irrespective of whether a company has any income whatsoever or makes any money from this, we are imposing a tax on the sale of these products. The average medical device company has a profit margin of less than 5 percent. A 2.3-percent tax is about half of all their income that now goes to a new sales tax. By the way, they still have to pay income taxes, all the ordinary income taxes.

This is absolutely devastating, because what these companies are then forced to do is, if virtually the entire bottom line goes for taxes, they don't have the money to reinvest in their business. The medical device industry is one of the best industries we have in this country. It is so dynamic. It is so creative.

I wish my colleagues would come with me to parts of Pennsylvania where this industry is just thriving--or was thriving but not so much anymore. It was thriving because of the creativity, the innovation, the devices, and inventions that people are making, improving the quality of life and extending life. It is amazing, the marriage of technology and creative minds and experts in health care, what they are creating.

But, unfortunately, for a lot of these products, it takes a long time before they are actually profitable for the company that sells them, long after they have begun sales. This tax imposes the burden before they have ever become profitable. What is the effect of that? It is that it makes this whole industry less appealing to invest in, less attractive to entrepreneurs, to investors. Whether it is venture capital or private equity or wherever the source might be, less is going to medical devices, an industry that is saving lives and improving the quality of lives. It is a big manufacturing industry. Most of these companies manufacture their products in the United States and many in Pennsylvania. We sell a lot of them overseas. We have a big trade surplus in medical devices because we lead the world.

What does ObamaCare do? It slaps a new tax on the sales. It is a terrible policy.

We have a high medical bills tax. Currently, those people who face high medical bills are allowed a deduction for medical expenses to the extent that those expenses exceed 7.5 percent of adjusted gross income. The new provision, which took effect just earlier this year, raises that threshold before a person can take that deduction. That is just a complicated, convoluted tax increase on people who have high medical bills.

There is the flexible spending account cap. There is the elimination of the tax deduction for employer-provided retirement drug coverage in coordination with Medicare Part D. There is the individual mandate excise tax. There is the employer mandate tax. There is the tax on health insurers. There is an excise tax on comprehensive health insurance plans.

There are 20 different taxes, the combined effect of which is, without a doubt, to significantly weaken our economy.

But that is not the only way ObamaCare weakens our economy. The mandate ObamaCare imposes on employers kicks in on employers who have 50 or more employees. I have spoken with a number of Pennsylvania employers who have 45 or 47 or 48 employees. They are not subject to the hugely expensive mandates of ObamaCare, and do my colleagues know what they tell me? They are not going to be subject to it. They will go to great lengths to avoid hiring the fiftieth employee. They will hire temps. They will pursue automation. They will do all kinds of things they wouldn't otherwise do because this government makes it too expensive for them to hire a fiftieth employee. At a time when our workforce participation rate is at a record low because so many people have given up even trying to find work, ObamaCare makes it too expensive for employers to hire new workers.

It has a similar effect on hours worked, because this 50-employee count applies to anybody who works 30 hours or more, so one of the ways a business can avoid these crippling costs is to cut back on the number of hours for their workers. That doesn't work out so well for somebody who needs those hours to pay their bills to support their family. It is happening all across the country.

Another aspect that is really outrageous is this mandate in ObamaCare that employers must--regardless of whether the employees want it or not--provide contraceptive and abortifacient coverage. One of the problems with this is that these services run completely contrary to deeply held religious views for a lot of people, faith-based institutions, and others. So the administration decided they will offer an accommodation for faith-based institutions. The accommodation they offer is pure sophistry. What they offered was to say you won't have to--you, the faith-based institution--you won't have to actually pay for those services which you find objectionable based on your faith. You won't have to pay for them, but you have to buy an insurance plan that has them and the insurance company will just have to give you that for free.

This is the most ridiculous thing in the world. Private companies aren't in the business of offering their services for free. If there is an aspect of it that they supposedly have to give away, then they will pass on the costs for the services they provide. Nobody is fooled by this. This is yet another of the details of ObamaCare.

But, really, some of the biggest problems I have saved for the end, and that is the series of broken promises that ObamaCare constitutes. One of the most glaring is this promise we have all heard. I don't know how many times we have heard it, but we all have. We heard the President and so many of our Democratic colleagues who support this bill say: If you like your health plan, you can keep your health plan. Let's be very clear. Everybody who supported this bill who is familiar with it--and that would certainly include the President of the United States and my friends here--they knew from the beginning that was not possible. They knew that because the legislation was designed to prevent many people from keeping their health insurance. It was written for that purpose, in part, because they had to. The whole point, or a big part of the point of ObamaCare was to establish standards that the government determined were appropriate, regardless of whether an individual American thinks that a given plan is adequate or not or suitable for herself or her family. It was up to the government to make this decision, not the individual, and they would establish criteria, and if your plan didn't meet the criteria, your plan was going to be canceled. That is in the legislation. That is codified. It always was. It is at the heart of this legislation.

So for anybody to go around the country saying, If you like your health plan, you can keep your health plan, they were knowingly stating something that was completely untrue, was always untrue, and was necessarily untrue. The examples abound.

I have emails from constituents. I have too many. I won't have a chance to run through them all this evening. I may have to come back on another occasion. But I will share a few with my

colleagues. This is from a small business owner from Lancaster County, PA. I got this just--I think I got this earlier today. I will just quote from this email from my constituent, addressed to me. It says:

As my Congressional representative, you need to know how

ObamaCare is harming my life and health care.

I work for a small construction company. My cost for family

health care was already over $11,000 per year. We received

notification that our policy was being canceled since it did

not comply with the requirements of the Affordable Care Act.

Our company looked for the best rates they could find for

comparable coverage which did comply. They chose a new

insurance company. We just recently were given the costs for

next year. My costs to cover myself and my family will be

over $17,500, a 59-percent increase. Even with that, the

deductibles and out-of-pocket maximums are higher. This is

not ``Affordable Care''. This would eat up a major part of my

income.

I attempted to log onto the healthcare.gov website several

times, but always get kicked out. I do not hold much hope

that I will get any better rates, because I don't qualify for

a credit.

We were already struggling to live on my take home pay. We

cannot afford to have it reduced by over $6,500.00. We may

have to drop coverage for my wife or kids, and pay the

penalty.

I suspect that this law will result in many more people

losing more health care, at the expense of a few getting free

or reduced cost healthcare.

I got this just a week ago from a man from Cumberland County, PA. He said:

My wife Barb and I have been trying for almost three weeks

now to get signed up. . . . all income and health info and

private information is on the unsecured web site and the

application is accepted . . . but we have not been able to

get on to pick the plan or get our price . . . so nobody has

been paid. Thus our canceled insurance ends on Dec. 31st and

we look to be out.

A BIG mistake by the folks who voted for this . . . I've

had cancer a couple times, my wife has had cancer and we both

see our doctors when needed. This ACA will ruin many families

if we can't get onto an insurance plan.

A woman from Lebanon County, PA, sent me this email a week ago. She said:

We had our healthcare discontinued, and after an appeal we

were able to get it reinstated, but only for this year.

Currently we have a health care savings plan with a

deductible of $3,000 a year. . . . In the new plan, our

deductible would increase to $12,000 . . . and our premiums

would increase to $9,000 a year. How is a middle class

married family supposed to pay for that?

This is absolutely ridiculous, and this is our situation. I

hope every government worker has to purchase their plan

through this plan.

Here is another. A man from Delaware County in southeastern Pennsylvania:

I am 66 and I am on Medicare. My wife is 63. Her insurance

company canceled her ``longstanding'' policy due to the

requirements of the ACA. Her ``new'' policy costs $350 more

per month. We are on a strict budget. . . . We are the hard

working middle class. Who stands for us?

There was another promise we frequently heard, and that promise we frequently heard was that if you like your doctor, you will be able to keep your doctor. This too was known to be impossible. Since the law was designed to discontinue health insurance plans and force people on to alternative plans, not all plans cover the same doctors. Certainly, some were going to lose their coverage. Let me give an example of an email I got from Westmoreland County just last week. She writes:

I have been self-employed for 13 years and have never been

without health insurance. 3 years ago I was diagnosed with

multiple sclerosis. Having an expensive preexisting condition

was not a problem for me as I had never let my insurance

lapse. My medications cost (without insurance) $4,000+ per

month. I received notice several weeks ago that they would

now cancel my plan and would do so as of Jan 1, and I had to

sign up for new coverage through the health insurance

exchange.

My staff reached out to this woman and tried to help and, after several attempts, she was able to access the exchange. Do my colleagues know what she learned? She learned that in her region there were two options available to her. One covers her doctors who have been treating her for her MS for years. The other covers her prescription drugs. Neither one covers both.

These are the kinds of decisions people are being forced to make all over America. They are the kinds of decisions people are being forced to make every day. It is the direct result of the loss of personal freedom that this legislation imposes on people, and this is the topic that we ought to be addressing in this body so we can pursue the only solution, which is to repeal this bill and move health care in a completely different direction.

I believe my time has expired, so I will yield the floor.

Mr. President, I rise as we consider the nomination of Deborah Lee James as Secretary of the Air Force, and I wish to touch on some of the points that were made by the Senator from Alabama.

I wish to state how much I appreciate his leadership, especially as the ranking member of the Budget Committee, his consistent leadership and fighting for fiscal discipline and putting our country back on a sustainable fiscal path, his commitment to an open amendment process, the opportunity to have vigorous debate in the Senate so that this body can work its will, and, of course, his work on the Armed Services Committee. I appreciate all of that, and I appreciate him being here tonight.

I do think it is important we have a discussion about how we got here, a discussion about the circumstances that have led to this completely unprecedented moment.

In the entire history of the Republic, we have never found ourselves in this circumstance where a majority party has decided that they alone should have sole say in who shall be appointed to the executive branch and who shall have the lifetime appointments to our Federal bench. I am one who believes this will very likely have very detrimental effects because when one party can ram through their choice without having to give any regard whatsoever to what the other party thinks, then what do we get? We get legislation like ObamaCare and we have extremes in the nominations that will eventually be confirmed.

Any President comes under pressure from the extremes within his or her party to put the most extreme people in positions of power, and the Senate has played a vital role in moderating that extreme, that tendency, that pressure, because it has virtually always been the case that neither party has 60 votes. Very seldom has it been the case that a party has had over 60 votes. So it has almost always been necessary that there be some broad bipartisan consensus on the people who will populate powerful posts as regulators and lifetime appointments to the bench.

That is no longer the case. There is no such check, and I fear that the consequences will be very detrimental: extremism in the regulatory agencies, volatility as we move from one administration to another and we have these swings, and probably the most disturbing of all is the real danger that the greatest source of pride Americans can have in their Federal Government, which has been an independent, nonpartisan judiciary--that very judiciary becomes a creature of the political and becomes captured by the political branches of government. That is the danger, and that is why it is important we consider how we got here and why we got here.

It is particularly extraordinary when we consider the statements of some of the leaders on the other side of the aisle, Democratic leaders who for years were passionately opposed to doing exactly what they did last month. The majority leader himself just a short time ago said:

The right to extend the debate is never more important than

when one party controls Congress and the White House. In

these cases, a filibuster serves as a check on power and

preserves our limited government.

Senator Schumer, the senior Senator from New York, put it this way:

The checks and balances which have been at the core of this

Republic will be evaporated by the nuclear option. The checks

and balances say that if you get 51 percent of the vote, you

don't get your way 100 percent of the time.

That was Senator Schumer and Senator Reid. There are many other quotes on the record in which they vigorously opposed the notion of denying the minority any say in the confirmation process when it was discussed but never implemented some years ago. So why would they have such a 180-degree reversal? Why would their opinion and that of the vast majority of my Democratic colleagues have changed to the point where they would actually take this absolutely unprecedented step?

Senator Reid gave an explanation on the day he inflicted these changes on this body. I will quote from Senator Reid's explanation. He said:

There has been unbelievable, unprecedented obstruction. For

the first time in the history of our Republic, Republicans

have routinely used the filibuster to prevent President Obama

from appointing his executive team or confirming judges.

That is what Senator Reid said. So it has been about Republicans obstructing the President from appointing his executive team and confirming judges.

Well, let's consider the case of judges to start. Let's take a look at this chart. Since President Obama has been President, there are some very simple, very easily verifiable facts we can look at.

The President has sent nominees for the Senate to consider since he became President. The Senate has confirmed 215 of those nominees, but the Senate has blocked 2 of his nominees. These are verifiable facts. They are not in dispute. These are the numbers. In total, the President has sent us the names of 217 candidates for judgeships, and 215 were confirmed and are sitting judges and 2 were blocked.

There is another category of nominees; that is, the executive branch nominees--the various agencies and regulatory bodies that are subject to senatorial confirmation. The President has sent us a total of 1,494 nonjudicial executive branch nominees. The Senate has confirmed 1,492. The Senate has blocked two.

The math is not that complicated. The President has nominated and sent to the Senate for our consideration a total of 1,711 altogether, and the Senate has confirmed 1,707. The Senate has blocked four. If you do the math, that is a confirmation rate of 99.8 percent.

So of all the nominees the President has sent to this body to be confirmed, we haven't actually confirmed every one; we have only confirmed 99.8 percent of them. Of the 1,711, we have blocked 4.

I would suggest that the power of advice and consent--the Constitution says advice and consent; it doesn't just say advice. If it just said advice, then that would clearly imply that the President could ignore the advice if he chose. But it doesn't just say advice; it says advice and consent. The power to consent clearly and obviously implies that under some circumstances that consent would be withheld. If not, there is no meaning to this at all.

So I would suggest it is patently absurd to suggest that a 99.8- percent confirmation rate is a pattern of obstruction, as we have been accused of. So that can't be the real reason, obviously. Obviously, this kind of record of almost universally approving Presidential nominees can't possibly be the real reason we had this unprecedented power grab and rules change.

So what was the real purpose? What was the real motivation behind this very dramatic development? I am here

to tell you that I think it is very clear what the real motivation was. The motivation was to pack the DC Circuit Court of Appeals so that a partisan group of judges would validate an agenda that this administration and many of our friends on the other side of the aisle want to impose.

That is an outrageous thing to say in some ways. Some people might think that is quite an accusation. What would be my basis for saying something like that? It would be the fact that Senator Reid and Senator Schumer told us that was their reason. They said so. I will get to their quote, but let me explain why this has been done.

The fact is that elections have consequences. The President of the United States was elected. The Republicans have been enormously deferential in confirming his nominees, among other things.

But in 2012 the President wasn't the only person on the ballot. The entire House of Representatives was on the ballot, and the American people chose to reelect a Republican majority in the House of Representatives. Those elections have consequences as well, and one of the consequences of that election--the set of elections that produced a Republican majority in the House and left many Republicans in the Senate--is that the more liberal aspects of the President's agenda can't pass in Congress. They are not supported by a majority of the American people. They are not supported by majorities in Congress. Things like cap and trade, card check, the war on coal, and recess appointments don't have support. I don't think they have broad support in either body, certainly not enough in the House of Representatives to pass.

So what is a President to do if he can't get his legislation passed but he nevertheless wants to pursue an agenda? Well, one way a President could choose to do this--especially one who is not interested in working with the minority party--and let's face it, ObamaCare is the clear example that this President is not interested in the input of Republicans. That was jammed through without a single Republican vote in either the House or the Senate. There was no input from Republicans. There was no consideration for what the minority party considered. There was not a broad consensus.

It is not surprising that a very short time later there is a big majority of the American people who do not support this bill because it was never designed with enough input and enough buy-in to have that broad consensus. If a President is not interested in working with the minority party and he cannot get his legislation through because there are not enough members of his party in Congress, the alternative is to try to impose it through the regulatory process, through the agencies, through the regulators, through the executive branch, which has become enormous and enormously powerful.

There is only one big hurdle for a President to try to go down this road and that hurdle is that eventually people who are the victims of an overreaching group of regulators and administrators and agency heads, they have recourse. If they think that a given regulator is acting unfairly or illegally or unconstitutionally, they can go to court and in fact people do that. Guess what court ends up hearing the appeals and making what is very typically the final decisions, as a practical matter, regarding Federal regulations. Why, it is the DC Circuit Court of Appeals. That is the way our Federal system works.

In fact, the DC Circuit Court has generally been upholding the laws. I believe the evidence is very clear that it is a capable, competent, nonpartisan group of talented judges who make decisions as they see fit. They call balls and strikes, as referees ought to. Among their decisions, for instance--I am sure I do not agree with all of them but they did block what I thought was an illegal overreach by the EPA, inconsistent with the laws regulating EPA. They did not believe the President had the right to decide when Congress was in recess and make appointments that suited him when we were not able to deny consent. That was the DC Circuit Court's decision. This, and several others, were completely unacceptable to some of my Democratic friends. It was unacceptable this independent, nonpartisan court might reach decisions that were inconsistent with the liberal agenda.

How do we know this was unacceptable? We have some quotes. The senior Senator from New York, Mr. Schumer, discussed this. He was speaking to a group of supporters. It is on the record. He complained that the DC Circuit overturned the EPA's ability to regulate existing coal plants. He complained the SEC cannot pass rules unless they do what is called a cost-benefit analysis. He complained they struck down the administration's illegal recess appointments to the NLRB. He told a group of supporters that Democrats ``will fill up the DC Circuit one way or another.''

That was the quote. It was pretty straightforward, I will give him that. It is pretty candid. We do not like the decisions that are coming out of this court so we will pack the court with people who agree with our ideology.

Senator Schumer was not the only one to make this case. Senator Reid had this to say of the DC Circuit:

They are the ones who said the President can't have recess

appointments. They have done a lot of bad things. So we are

focusing very intently on the DC Circuit. We need at least

one more. There are three vacancies. We need at least one

more and that will switch the majority.

This is Senator Reid on the DC Circuit: ``We need at least one more,'' obviously referring to a judge. ``We need at least one more and that will switch the majority.'' I think it is pretty clear what was going on here.

Now fast-forward to a few weeks ago. There was just one obstacle to putting the people who would agree with Senator Schumer and Senator Reid on the DC Circuit Court and render the decisions they wanted. The obstacle was Republicans were not interested in going along with the scheme to pack the court for ideological purposes. They didn't think that was a very good idea. They thought it was probably better to have judges who were not there to try to advance a political agenda but believed their job is to apply the law as written and make sure it is consistent with the Constitution as opposed to pursuing a political agenda.

Despite the fact that Republicans had to that point confirmed 99.8 percent of all the President's nominees, that was going a little bit too far, to simply blatantly pack the DC Circuit Court, and we said no to the three nominees who were people they were intending to pack that court.

When we did, Senator Reid, after publicly promising he was not going to change the rules this way just this past summer, nevertheless did exactly that. Despite the fact the Senate rules are very clear to change the rules requires a vote of 67 Senators, precisely so there would be a broad consensus behind the rules, Senator Reid changed the rules with a mere 51 votes. He broke the rules so he could change the rules so the Democratic majority can now steamroll through and rubberstamp all of the President's nominees, including those necessary to pack the court so they can pursue the agenda they want to pursue. This is not my speculation. These are the quotes from the man who helped to organize this effort.

It is, frankly, very reminiscent in a lot of ways of ObamaCare: Steamroll through Congress, one party, no input from the other party, the minority party, and a complete disaster. By the way, the other big similarity is the broken promises. Senator Reid clearly, unambiguously, unequivocally, unconditionally made the promise that he was not going to change the rules and then he did.

Then what have we been hearing about ObamaCare? One broken promise after another.

What I am going to do for the remainder of the time that I consume this evening is remind all of us of some of the promises that were made. Then I am just going to read a small sample of the emails that have been coming into my office from Pennsylvanians who have learned firsthand, the hard way, the painful way, just how untrue these promises were.

The first one is maybe the most famous of the promises. This is the President's repeated promise, echoed by many others, and I will quote: ``If you like your health plan you can keep your health plan.'' I don't know how many times the President said it, but we have all seen it, we all know it. But what is particularly maddening is we also know something else. We know everybody who said this always knew this

was not true. It was not true because the design of the bill forbids people from keeping health insurance plans in many cases--not all cases but many cases--and the authors of the bill and the supporters of the bill and the people who voted for the bill knew full well that one of the purposes of the bill was to establish government-approved standards for all insurance plans.

If your plan did not meet those standards, you were going to lose your plan. So this is what some folks have written to us about this promise, that if you like your health plan you can keep your health plan. This was just 2 days ago, a gentleman from Lancaster County from Pennsylvania wrote:

As my Congressional representative, you need to know how

ObamaCare is harming my life and health care.

I work for a small construction company. My cost for family

health care was already over $11,000 per year. We received

notification that our policy was being cancelled since it did

not comply with the requirements of the ``Affordable Care

Act.''

Our company looked for the best rates they could find for

comparable coverage which did comply. They chose a new

insurance company. We just recently were given the costs for

next year. My cost to cover myself and my family will be over

$17,500 per year (a 59-percent increase). Even with that, the

deductibles and out of pocket maximums are higher. This is

not ``Affordable Care.'' This would eat up a major part of my

income.

I attempted to log onto the healthcare.gov website several

times, but always get kicked out. I do not hold up much hope

that I will get any better rates, because I do not qualify

for a credit.

We were already struggling to live on my take home pay. We

cannot afford to have it reduced by over $6,500. We may have

to drop health coverage for my wife or kids, and pay the

penalty.

I suspect this law will result in many more people losing

their health care, at the expense of a few getting free or

reduced healthcare.

Another from a gentleman from Cumberland County last week.

My wife Barb and I have been trying for almost three weeks

to get signed up. . . . all income and health info and

private information is on the unsecured Web site and the

application is accepted . . . but we have not been able to

get on and pick the plan or get our price. . . . so nobody

has been paid. Thus our cancelled insurance ends on December

31st and we look to be out.

A BIG mistake by the folks that voted for this . . . I've

had cancer a couple times, my wife has had cancer and we both

see our doctors when needed. This ACA will ruin many families

if we can't get on to an insurance plan.

These folks are not only losing the insurance they have, but they have not been able to get an alternative plan.

A woman from Lebanon County, Pennsylvania, last week sent me this email.

We had our healthcare discontinued, and after an appeal

were able to get it reinstated, but only for this year.

Currently we have a healthcare savings plan, with a

deductible of $3,000 a year. . . . In the new plan, our

deductible would increase to $12,000 . . . and our premiums

would increase to $9,000 a year. How is a middle class

married family supposed to pay for that?

This is absolutely ridiculous, and this is our situation. I

hope every government worker has to purchase their plan

through this plan.

A gentleman from Delaware County sent me this email last week.

I am 66 and I am on Medicare. My wife, Mary Ann is 63. Her

insurance company canceled her ``longstanding'' policy due to

the requirements of the ACA. Her ``new'' policy costs $350

more per month. We are on a strict budget. . . . We are the

hard working middle class. Who stands for us?

A small business owner in Cumberland County, Pennsylvania, December 3, 2013:

I am a small business owner with 3 employees looking for

health insurance. My old policy is being canceled and was

offered a replacement policy which is 68% higher than the old

policy with higher deductibles. I went through the

healthcare.gov site and was quoted an individual policy for

my family which is 74 percent higher, with higher

deductibles.

When do I see affordable health care for my family?

I have been self-employed for 19 years and have paid for my

insurance all these years myself. With deductibles I am

looking at $26,000 out of pocket for health insurance this

year. Please Help!

Another promise that we heard--these were people, real people who were demonstrating how untrue was the promise that you could keep the health insurance plan that you have. But there was another promise we heard frequently and that promise was, ``If you like your doctor, you will be able to keep your doctor, period.'' The President added that flourish at the end, ``period,'' just to emphasize. These are the President's words: ``If you like your doctor, you will be able to keep your doctor, period.''

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

Mr. President, I rise today to address an amendment I have pending on the ENDA bill which we will vote on soon. This is an amendment I have offered on my own behalf and that of Senators Flake and McCain, who have joined me in this effort, and I thank them for that.

It occurs to me that sometimes in our work a tension can arise between important competing American values, and two vitally important American values are, I believe, somewhat in tension in some aspects of this bill. First, one great enduring and important value for all Americans is equality. This bill today clearly makes a strong stand for greater equality.

I believe, and I think most Americans share the view, that every individual is entitled to dignity and respect and fairness, and that individuals ought to be judged based on their merits, on their character, and on their abilities. A person's sexual orientation is irrelevant to their ability to be a good doctor or engineer or athlete or a Federal judge. That is why I have supported acknowledging that reality.

I supported 17 years ago, in the writing of the charter of the city government of Allentown, a provision that would ban discrimination on the basis of sexual orientation in the hiring for that city. I supported an end to don't ask, don't tell, because I thought it was an inappropriate infringement on the freedom of gay and lesbian persons serving in the military. I believe there are more legal protections that are appropriate to prevent employment discrimination based on sexual orientation. So these are an important set of values.

Another obvious and vitally important American value is freedom, and particularly religious freedom. The First Amendment guarantee of the free exercise of religion means that religious groups, even in the course of secular services, can, for instance, choose to hire employees who agree with their religion, employees who will promote that religion. And of course, the First Amendment applies even when we don't necessarily agree with the views of that religion or that faith.

What we have tried to do in this legislation and in other context is to strike an appropriate balance between the tension that arises between these sometimes competing values. The sponsors of this bill have made a very thoughtful, credible effort to strike that balance. In fact, the sponsor of this bill and I agree on what at least an important aspect of that important balance ought to look like, and specifically I believe the agreement is that religious institutions, including those engaging in some secular activities, should be exempt from the requirements of this bill if it violates the tenets of their faith.

The goal of my amendment is to simply make sure the bill actually achieves what the drafters intended. The Senator from Oregon, who is the chief sponsor of the bill, has stated correctly, in terms of its intent, that the bill ``broadly exempts from its scope houses of worship as well as religiously affiliated organizations.'' This exemption, which covers the same religious organizations already exempted from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 should ensure that religious freedom concerns do not hinder the passage of this critical legislation.

Other groups that are advocates for this legislation have similarly observed that the provisions of title VII would ensure the exemption of faith-based institutions. There are examples where circuit courts have ruled, in interpreting title VII of the Civil Rights Act, that affiliated organizations would in fact get this exemption. Examples include a gymnasium run by the Mormon Church, Christian elementary schools and universities, a Presbyterian-operated retirement home, a Seventh Day Adventist hospital, a Jewish community center, and there are others.

So I acknowledge it is absolutely true it is the case there are Federal courts that have respected the religious freedom of these institutions to be exempted from the religious hiring mandates of the Civil Rights Act and, presumably, that would apply in the case of ENDA because of the way the legislation is crafted.

The problem that concerns me is that there are other cases where other courts have come to a different conclusion, and they have not recognized religious institutions the same way. There is a lack of uniformity across our country, across the different districts that ultimately interpret the application of title VII of the Civil Rights Act.

In fact, over the years, different courts have interpreted the language quite differently, and so we have these two problems, in my view, if we leave the underlying legislation as it is. One is that Americans will live under not two but multiple different standards. The 12 circuits that apply the title VII exemptions have already adopted four different tests for determining whether an institution qualifies for the religious exemption.

The second problem is that employers and workers don't necessarily have predictability even within a circuit that has its own test, which differs from another circuit. And the reason is the tests themselves are somewhat subjective and somewhat unpredictable. They have multiple factors. For example, the Third Circuit, which includes my State of Pennsylvania, has nine factors; and as the court explained, not all factors will be relevant in all cases, and the weight given each factor may vary from case to case. The result is that in a single case decisionmakers looking at the same set of facts can reach very different conclusions.

In the absence of my amendment, my concern is there will be no uniform, predictable national standard for determining when a religious entity, a religious organization, is exempt from the bill. There are a couple of examples that illustrate my point.

In a case called the EEOC v. Kamehameha Schools--that is a Hawaiian word. My pronunciation may not be correct. This is a 1993 decision-- there were two schools created by a charitable trust to help orphans and poor children. The trust instructed ``the teachers . . . shall forever be persons of the Protestant religion.'' The schools shall provide a good education ``and also instruction in morals.''

The schools hired only Protestant teachers. They held themselves out as Protestant schools. They required all the students to take religious classes. They offered Bible studies and worship services, and they had a cooperative relationship with one specific Protestant church.

The district court found the schools were religious and, therefore, they were covered and they qualified for the exemption. But the Ninth Circuit Court, considering the exact same set of facts, found the opposite and decided the schools were secular. The Ninth Circuit acknowledged the schools' original principle was providing religious instruction, but they essentially ruled that since some students were not Protestant and since the schools offered courses that were not religious in nature--the schools taught math and they taught social studies--for those reasons they would not qualify for the exemption and the schools were required to hire non-Protestant teachers.

Another example--and I only have two--is a Methodist orphanage founded by the Methodist Church. The board of trustees were Methodist and they had close ties to the Methodist Church. The district court eventually held that many of the orphanage's day-to-day activities of caring for children were simply not necessarily religious, and so the home was not exempt. But initially, the district court had actually found for the Methodist orphanage. It was the Fourth Circuit that reversed it, sent the case back with instructions they reconsider this.

The district court had an interesting comment in this. It stated its opinion by declaring that it remains somewhat confused as to the proper interpretation, but it would do its best. So if a Federal judge can't tell what the test is, how could workers? How could an employer? How could an institution based on faith?

My amendment really is a modest attempt to ensure the bill actually achieves what I believe its authors and sponsors and supporters intend. It would continue to guarantee equality to workers, but it would protect religious groups' rights to the free exercise of their religion. And it would ensure all Americans would live under the same rule, the same formulation, with predictability and certainty. It would clarify that ENDA's religious exemption applies to religious hospitals, schools, charities, and other organizations that are owned by, controlled by, or officially affiliated with a church or religious group covered by ENDA's current exemption.

What this does is simply ensures we get close to striking a good, sensible balance between the equality in the workforce that is the principle motivation for this bill and the religious freedom I feel very strongly about and I think many of my colleagues do as well.

I want to commend everybody who has put in a lot of hard work on a careful and thoughtful effort here, and I hope my fellow Senators will join me in supporting this amendment.

Mr. President, I yield the floor.

Mr. President, I ask for the yeas and nays on my amendment.

Mr. President, just a parliamentary inquiry: I have 10 minutes allocated to me?

Thank you very much, Mr. President.

I rise to address the candidacy of Congressman Mel Watt to be Director of the Federal Housing Finance Agency as well.

Let me preface my comments by making it very clear. I know Congressman Mel Watt. He is a good man. I served with him in the House. We served on the Banking Committee together. I know for many years he has been and continues to be a passionate advocate for increasing taxpayer subsidies for housing finance, and I have never once doubted his sincerity, his commitment, or his passion for working for his constituents and also for disadvantaged people generally. Having said that, while Mel Watt is certainly a good man, I think this is the wrong job for this good man, and I want to explain why.

I think it is useful to first consider the massive size of the institutions that the Federal Housing Finance Agency, the FHFA, regulates. Fannie Mae, Freddie Mac, the Federal Home Loan Banks combined are enormous.

Fannie and Freddie together hold 48 percent of all the outstanding mortgages in the United States of America. Last year, they guaranteed almost 80 percent of all the new mortgages that were issued. Combined, Fannie and Freddie have assets that are nearly $5.2 trillion--this is much larger than the Federal Reserve--which have just made themselves into an enormous institution. Combined, Fannie and Freddie are more than twice as big as JPMorgan Chase, the biggest bank in America. In addition to being very large, they are enormously complex, and they are at the center--in fact, they are the housing finance market of the United States of America.

So they are enormously large, they are enormously complex. And the post we are talking about here--the directorship of the regulator--has virtually unchecked powers. The legislation that creates this post, that creates this agency and the head of this agency, empowers the Director enormously. Let me quote from the statute. The Director's powers include ``all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director'' of the entity. In plain English that means this person has the power of the entire board of directors, the CEO and all the management, and the regulatory agency that controls it all. There is no parallel in our country for an institution where so much power is concentrated in one person.

In addition, there is no congressional oversight. The FHFA does not depend on Congress for appropriations. It gets its money from fees from the entities it regulates. So Congress has no control, no authority, once a person is confirmed in this post, and they are confirmed for a 5-year term and can only be removed for cause. So it is unchecked power on an enormous scale.

Now, precisely because of the unchecked power over these enormously large, important, powerful, and complex institutions--precisely for that reason--the statute stipulates very clearly that the person holding this post has to be someone who is technically competent because of their own history, because they have been a practitioner in this field. The legislation demands that, and for good reason. Specifically, the law insists that the Director shall have a ``demonstrated

understanding of financial management or oversight, and have a demonstrated understanding of capital markets, including the mortgage securities markets and housing finance.''

So we are not talking about being automatically qualified by virtue of being a Member of Congress. One needs to be a practitioner. I will give you one quick example of many why central to the management of the enormous complexity of these institutions is the use of complex derivatives, which manage the interest rate risk inherent in these portfolios. Fannie and Freddie are the world's biggest users of derivatives for this risk management purpose. Understanding how these work, the risks that are inherent in them, and how it affects the broader capital markets is absolutely essential. Yet in December 2011, Mel Watt said this. I quote Congressman Watt:

For all of the last term of Congress, I sat in the

Financial Services Committee, and a lot of these arguments

that I am hearing today are the same arguments that I heard

about derivatives. Well, I didn't know a damn thing about

derivatives. I am still not sure I do.

Derivatives are central to the management of these institutions.

There is another reason why this statute insists on an experienced practitioner and a technocrat rather than a politician, and that is because pursuing a political agenda at these institutions is enormously dangerous. Look at the damage that it did the last time. Congressman Watt was an advocate for all of the policies that helped to drive Fannie and Freddie into the conservatorship that cost taxpayers so much money. He supported lower capital standards, lower downpayments, lower underwriting standards, loan forgiveness. He was opposed to tougher regulations, even when it was becoming clear that these institutions were on a downward spiral and soon would need a massive bailout.

Unfortunately, Congressman Watt still supports these policies. And if he were confirmed as the Director, with all of these powers, he could unilaterally reinstitute these policies.

Now, fortunately, at the moment, we have a Director who understands that his obligation to the taxpayer precludes these misguided policies. I am deeply concerned that if confirmed, Congressman Watt would reverse that practice and reinstitute some of these very damaging and dangerous policies.

So for these reasons and, I would say, in respect and in honoring the clear language of the statute, we have an obligation to not confirm Congressman Mel Watt. While I know he is a very good man, I think he is the wrong person for this job. So I would urge my colleagues to vote no on cloture later today.

I yield the floor.

The Nomination of Mel Watts

Reserving the right to object, I would point out a couple of things I didn't hear in the discussion of the Senator from Washington.

One is the fact that the House has passed three different measures to fund the government. That has already happened. They were sent over here, and each one was rejected by the Senate Democrats, one after another, so that we are now in a government shutdown.

I would also point out that after the Senate Democrats rejected every measure the Republicans sent over to fund the government, the Republican House sent over a measure to go to conference so that we could resolve this problem. I find it a little bit ironic, to say the least, that our Democratic colleagues are saying: We need to go to conference on the budget resolution. Now, I know the terminology here can get confusing for people, but that is a vehicle that has nothing to do with the immediate problem we have right now, which is the funding of the government, because we don't have a continuing resolution to actually fund the discretionary spending of the government, and that having expired and our Democratic friends having voted down every attempt by the Republicans to fund the government, we are in this bind.

Now we have the unanimous consent request, if I have this right, that says that if the Republicans agree to every demand the Democrats have made beforehand, initially, then and only then would our Democratic friends like to have a conference on the budget. This is what I am hearing.

What I would ask is whether the Senator from Washington would consider a modification to the unanimous consent request, and this would be two things. One would be that they also would agree to go to conference on the CR so we can work out the problem that is preventing us from reopening the government. The other would be that when we go to conference----

I yield to the Senator.

My request is that we try to find a resolution to the shutdown. Go to conference----

Go immediately, right now. The government is shut down. Let's go right now to conference as the House has requested so that we can reopen the government and can work out an agreement rather than have this impasse. Let's try to break the impasse by trying to go to conference. That would be one condition.

Then I would go back to what our concern has been about the budget conference all along. I have asked unanimous consent to go to conference on the budget. I am a member of the Finance Committee. I would like us to do that. What I have objected to and what many of us have objected to is using it as an opportunity to break the Senate rules and airdrop in a debt ceiling increase without the opportunity to have the 60-vote threshold we ought to have in the Senate if we are going to consider increasing the debt burden on the American people.

I would ask unanimous consent that the Senator from Washington agree to those two modifications.

The Senator from Washington objects to my request that we go to conference so we can resolve the impasse of the shutdown of government and instead wishes to go to conference on something else, which is the budget resolution, in the event it does not reopen the government.

I object.