Floor Statements

Mr. President, Senate Standing Rule XXVI requires each committee to adopt rules to govern the procedure of the committee and to publish those rules in the Congressional Record not later than March 1 of the first year of each Congress. On February 25, 2019, a majority of the members of the Committee on Homeland Security and Governmental Affairs' Permanent Subcommittee on Investigations adopted subcommittee rules of procedure.

Consistent with Standing Rule XXVI, today I ask unanimous consent that a copy of the Rules of Procedure of the Permanent Subcommittee on Investigations be printed in the Record.

Mr. President, Senate Standing Rule XXVI requires each committee to adopt rules to govern the procedure of the committee and to publish those rules in the Congressional Record not later than March 1 of the first year of each Congress. On February 27, 2019, a majority of the members of the Committee on Homeland Security and Governmental Affairs' Subcommittee on Regulatory Affairs and Federal Management adopted subcommittee rules of procedure.

Consistent with Standing Rule XXVI, today I ask unanimous consent that a copy of the rules of procedure of the Subcommittee on Regulatory Affairs and Federal Management be printed in the Record.

On rollcall vote No. 18, I voted yea. It was my intention to vote nay.

I ask unanimous consent that I be permitted to change my vote, as it does not affect the outcome.

Mr. President, rule XXVI, paragraph 2, of the Standing Rules of the Senate requires each committee to adopt rules to govern the procedure of the committee and to publish those rules in the Congressional Record not later than March 1 of the first year of each Congress. Today, the Committee on Homeland Security and Governmental Affairs adopted committee rules of procedure.

Consistent with Standing Rule XXVI, I ask unanimous consent to have a copy of the rules of procedure of the Committee on Homeland Security and Governmental Affairs printed in the Congressional Record.

Is the minority leader on the floor?

Yesterday, Chaplain Black opened the Senate by quoting the Gospel according to Luke. He said: ``Those who work deserve their pay.'' I could not agree more.

First of all, I want to thank the finest among us--the members of the Coast Guard, TSA, Customs and Border Protection, ICE, all the men and women whom, because of Federal law, we require to work who are caught up

in the shutdown politics, which I don't agree with, and they are not getting paid. It is a basic principle that we should pay these individuals.

Earlier today, my colleague, the Senator from Alaska, with other Republican colleagues, came to the floor asking a simple question-- proposing a bill to pay the men and women of the Coast Guard, and for some reason, the minority leader and Democrats objected to this very fair proposal.

Today, I come to the floor to offer an amendment to the bill I introduced 10 days ago. It has been talked about in the press. We have 24 Republican cosponsors of the Shutdown Fairness Act, which does a pretty simple thing: It simply pays those individuals who are doing the work trying to keep this Nation safe.

Mr. President, I see the minority leader here.

I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 6, H.J. Res. 1. I ask unanimous consent that the Johnson amendment at the desk be agreed to; that the bill, as amended, be considered read a third time and passed; and that the motion to reconsider be considered made and laid upon the table.

I do object because we basically just voted on that in the Senate, and it was voted down. The President would not sign that. That would not become law. And the minority leader is holding 400-some thousand individuals who are actually working who should get paid--he is the one holding them hostage.

I would yield to the Senator from Tennessee.

Mr. President, I would like to turn it over to the Senator from Tennessee for 2 minutes.

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

Madam President, I ask unanimous consent that I be allowed to complete my remarks and

Senator Tester be recognized at the conclusion of my remarks for up to 5 minutes.

Madam President, before I begin addressing my opposition to the CRA, I want to spend a brief moment agreeing with all of the tributes and all of the accolades of Senator Hatch.

I wasn't able to get down here on the floor because I couldn't get down here in time--he started a little bit early--but I watched the entire speech from my office. It just showed the integrity, the patriotism, and the goodwill of this good man.

Like so many of my other colleagues, I don't know another Senator who offers more encouragement and more kind words to all of us than Senator Hatch. Again, I wish him and Elaine well in their retirement. I wish them the best.

God bless Senator Hatch for all of his faithful service.

Congressional Review Act

Madam President, I rise to discuss the Congressional Review Act challenge put forward by the senior Senators from Oregon and Montana.

The CRA has been proposed in response to guidance on a revenue procedure recently announced by the Internal Revenue Service. As chairman of the Homeland Security and Governmental Affairs Committee, I have written to the IRS twice asking them to take the very actions this CRA seeks to overturn.

Let me begin by reviewing some basic facts about the guidance--facts that are irrefutable, but facts that are apparently being ignored by those supporting this measure.

First, I want to make it clear that the guidance in question mirrors a proposal that was crafted under the Obama administration. While that proposal was never fully implemented, the fact that it was first proposed by the Obama administration proves its bipartisan nature.

Essentially, the guidance makes clear that personal identifying information of donors for certain tax-exempt organizations does not need to be filed on a form with the IRS. However, these organizations will still be required to keep that donor information on file. Simply put, the guidance is merely a change in where the information is warehoused.

In the past, it was kept on a form at the IRS, as well as in the records of each organization. Now, it will only be kept in the records of each organization.

It is important to note that the officials in the Obama administration said that the reporting of such information is no longer necessary for the efficient administration of the internal revenue laws. I am not actually sure it ever was required.

The one change being implemented that differs from the Obama proposal is that the IRS also included in its new guidance needed privacy protections in response to recent government leaks and breaches. In order to protect taxpayer privacy, under this new guidance, the donor information in question is prohibited from being made public by the government no matter where it is warehoused.

So let me summarize. The donor information in question is not used by the IRS for the efficient administration of the internal revenue laws, as was noted by the previous administration. The information is required to be kept on file and on the books of the organization and to be available to the IRS or law enforcement, if needed, which was also as proposed by the previous administration. Finally, the information, no matter where it is housed, shall not be made public by the government.

These are clear and concise reasons for a simple change that was made--and let me reemphasize this point--in order to protect taxpayer privacy. Unfortunately, such protection is necessary because, when the IRS required that donor information be reported on a form to the IRS, there had been numerous times during which the returns of tax-exempt organizations were inappropriately and possibly illegally disclosed, whether through administrative sloppiness, carelessness, breaches, or other potentially nefarious or partisan reasons.

The reason tax-exempt organizations' donors may wish to remain anonymous is best illustrated in the 1958 Supreme Court case of the NAACP v. Alabama. The State of Alabama was attempting to force the disclosure of the members of the NAACP. The concern those members had in having their names revealed should be obvious. Fortunately, the Supreme Court decided unanimously to protect the identities of the NAACP's members.

Today, tax-exempt organizations that span the political spectrum and the supporters of those organizations deserve the same consideration and protection as the NAACP had. They deserve to remain anonymous so that they cannot be targeted by their political opponents.

A similar threat does exist today from the compelled disclosure of donor information that is held by tax-exempt organizations, including 501(c)(4) social welfare groups. If information about donors to these groups becomes publicly available, the information could be used in a way that would chill future speech and association--a basic First Amendment right.

Donor information is also susceptible to abuse by the Federal Government itself. In one egregious example in 2010, the IRS sent 1.1 million pages of tax-exempt return information, including donor information in some cases, to the Justice Department for potential prosecutions relating to political speech. More recently, some States have sought to compel the disclosure of donor information from schedule B. The disclosure of donor information has led to the harassment of donors in some very well-documented cases.

In a court brief that was filed in January of 2017 in Americans for Prosperity Foundation v. Becerra, the NAACP warned against States' compelling the disclosure of donor information:

Forcing an organization to release [organizational

membership and/or donor lists] to the State not only divulges

the First Amendment activities of individual members and

donors, but may also deter such activities in the first

place. Specifically, individuals may legitimately fear of any

number of negative consequences from disclosure, including

harassment by the public, adverse government action, and

reprisals by a union or employer.

This potential harm exists across the political spectrum regardless of donors' ideological beliefs.

Needless to say, the Congressional Review Act challenge to the recent IRS guidance on where to house private donor information is troubling, and its motivation is highly suspect. For anyone who truly cares about privacy and ensuring that the Federal Government does not use the tax system as a political targeting machine, a vote against the Congressional Review Act challenge is the obvious choice. I urge my colleagues to vote no

I yield the floor.

Mr. President, I am here today to ask my colleagues to approve a bill to reform and reauthorize the Chemical Facility Anti- Terrorism Standards Program, commonly known as CFATS.

This CFATS Program regulates chemical facilities to help prevent terrorists from carrying out an attack with dangerous chemicals--a worthy goal. However, since 2006, watchdogs have identified significant problems with the program. In 2013, the Government Accountability Office found that CFATS had a 7- to 9-year backlog to review more than 3,000 security plans and a flawed methodology to assess security.

The inspector general and Congress have questioned whether the program successfully reduces risk, enhances security, and warned of serious management problems. That is why each time Congress has reauthorized the program, it has done so only for a limited duration. Coming from a manufacturing background, I agree with that approach. That is exactly how you help ensure continuous improvement.

In 2014, when the program was last set to expire, the Committee on Homeland Security and Governmental Affairs--under the chairmanship of Senator Carper--and Congress did their job. They did oversight. They made reforms and extended the program for another 4 years, until January 2019.

Under my chairmanship, our committee also took its oversight and reauthorization responsibilities seriously. Over the last 2 years, we have conducted extensive oversight on CFATS to evaluate the program's effectiveness and develop a plan to make it better. We enlisted the help of GAO to conduct a nonpartisan review of the CFATS Program to help inform our work. We held a roundtable with DHS, GAO, a CFATS chemical inspector, and multiple companies and industry groups. We had an important, frank discussion about the program's strengths and weaknesses. The committee also held numerous briefings with chemical facility owners, trade groups, DHS, and other relevant agencies.

After gathering information and talking directly with stakeholders, here is what we have learned: DHS has made significant progress under the 2014 reforms by eliminating the backlog and improving management of the program, but more work is necessary.

It is still far from clear that CFATS actually reduces the risk of terrorist attack, and DHS does not measure whether it actually does so. The program forces some explosive material companies to spend hundreds of thousands of dollars complying with CFATS regulations that are duplicative of Justice Department regulations and subject companies to frequent, unnecessary site inspections. These practices are extremely costly and neither reduce risk nor enhance security.

The program fails to give credit to companies that already comply with other private sector-specific programs that require high standards of care. Recognizing these exceptional programs would significantly reduce the regulatory burden on companies without reducing security.

DHS needs to do more to make this expedited approval process available to reduce unnecessary costs on both the companies and the American taxpayers, and it needs to be more transparent about how it classifies facilities to help companies understand what rules to even follow.

After conducting this oversight, I introduced a bill to address these issues and reauthorize the program for 5 years. Representatives Katko, Moolenaar, and Cuellar introduced a similar, bipartisan bill in the House.

Our legislation brings much needed regulatory relief to U.S. businesses by exempting explosive materials that are also regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives, reducing the frequency of audits and inspections, and reducing the burden of compliance for companies that participate in CFATS' recognition program, all while ensuring safety and security. It improves transparency by requiring DHS to provide information to companies on why their regulatory tier changed. It requires more DHS and independent assessments of how successful the program is at reducing risk and enhancing security. It also reauthorizes the program for 5 years.

After going through a thorough process of discussion and compromise, our committee approved the bill unanimously by voice vote in September.

The bill is supported by a wide range of private sector stakeholders, including the U.S. Chamber of Commerce, the American Chemical Council, the National Association of Manufacturers, and numerous others.

Mr. President, I ask unanimous consent that their letters of support be printed in the Record.

Having gone through all this work, all this oversight, taking that responsibility seriously, I recently have been asked to support a 1-year reauthorization of the program without any reforms. Without any consultation, Secretary Nielsen just sent me a letter completely ignoring the work our committee has done and informing of her support for a ``short-term'' extension.

Today, I was told the House plans to pass not a 1-year but a 2-year extension with no reforms. The House is claiming they cannot possibly consider reforms because there is simply not enough time, because they haven't done any oversight, because they didn't mark up a bill in this Congress. Yet the House Committee on Homeland Security has had years to act.

My committee did the work. We did act. Now I am being threatened with a false choice: Either reauthorize the program as is, without much needed reforms, or let it die. In fact, there is a much better third choice: Pass S. 3405, the bill our committee passed unanimously, the bill that provides unanimous reforms that strike the right balance between security and efficiency.

Again, our committee did the work. We did act. And I have to tell all my colleagues here, this is the only option I will support.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 670, S. 3405. I further ask that the committee-reported substitute amendment be withdrawn; the Johnson substitute amendment at the desk be considered and agreed to; the bill, as amended, be considered read a third time and passed; and the motions to reconsider be considered made and laid upon the table.

I am happy to respond.

The Senator from Delaware is well aware that we have been working. We have already agreed on three improvements from your standpoint. We increase the frequency of inspections for companies participating in CFATS recognition programs. We have added a third-party study to look at how workers can be made more aware of the fact that their facilities are covered by CFATS. We had a future GAO study to look back at how our provision exempting explosive materials covered by both CFATS and ATF is affecting the program.

We are already making movement. If you want to discuss this for a few more days, fine. Time is, obviously, running out.

I do want to make everybody aware of the fact that because we have done this work, because we have passed this out of our committee unanimously, I am not in any way, shape or form, accepting some of the typifications in terms of the fact that we have not communicated. We have been trying for months to work with the House. There has just been no yield whatsoever. There has been no give whatsoever. There has been very little desire on its part to do anything other than to have a ``take it or leave it,'' a ``let's extend this,'' a ``no reforms.'' That is, simply, unacceptable to me.

I have great respect for President Ronald Reagan. I don't want to prove him wrong. I, actually, want to reauthorize this thing. Yet if we can't come to an agreement with a reformed, reauthorized CFATS Program, I am more than willing to prove Ronald Reagan wrong when he said, to paraphrase, that the closest thing to eternal life on this Earth is a government program. I will let the program expire because I really do not think it really enhances the security of our Nation. It, certainly, has not been proven in that way, and without reforms, I am happy to let this program go by the way of the dinosaur.

I yield the floor.

Will the Senator yield?

Again, I am happy to do that, but we have not had that kind of engagement. Right now, there is, basically, a gun to my head, threatening me to take it or leave it. That is not collegial, and that is not a very high-integrity approach. I am happy to sit down. Let's continue working on this thing. This program needs reforms. We have done the work, and I think that work needs to be recognized and respected. Again, let's sit down and get our staffs together on this, and let's reauthorize and reform the CFATS Program.

Will the Senator please yield?

Had the House put an ounce of effort--of work--into this, I would have something to respect, but they have done nothing other than, basically, just to threaten me with these types of tactics. So, again, let's work together. Let's provide a product that we can present to the House and that they can pass.

Mr. President, I am not withdrawing my unanimous consent request. He can object to it, and we will work with him, but I will not consider that the final say. We will work in very good faith to come up with something better and come back to the floor, hopefully, with a bill that we have agreed to.

The objection is taken in that spirit.

Mr. President, reserving the right to object, as chairman of the committee of jurisdiction, I have reached out to the Federal Emergency Management Agency for its views, and the Agency opposes this legislation.

According to the Agency:

FEMA has spent more than $432 million on . . . [the

Transitional Shelter Assistance program], and provided rental

assistance to more than 25,000 TSA participant families to

help them find permanent housing solutions.

[Ninety-seven] percent of those enrolled in the program

have successfully transitioned to more permanent housing.

The remaining households in [the Transitional Shelter

Assistance program] have either received rental or repair

assistance from FEMA; have a habitable home with utilities

on; or are not eligible for additional FEMA housing

assistance.

Federal, state, and voluntary organization partners will

continue to provide assistance through disaster case

management to those who still require long-term solutions.

Again, as the chairman of the committee with oversight and jurisdiction over FEMA, I really do believe it is important to support FEMA's objection to this. For those reasons, I object.

Mr. President, I have been asked by the chairman of the Senate Finance Committee to object on his behalf. On his behalf, I object.

Mr. President, I rise today to encourage all my Senate colleagues to vote to confirm Michael Brennan as a judge on the U.S. Court of Appeals for the Seventh Circuit. Michael Brennan has an exemplary resume, including degrees from the University of Notre Dame and Northwestern University School of Law, two Federal clerkships, work as a prosecutor, and almost a decade on the State trial court bench before returning to private practice. His accomplishments in practice are noteworthy, but I would like to focus my remarks today on Mike's commitment to public service and his reputation as a jurist.

Becoming a Seventh Circuit judge will not be a huge adjustment for Mike because he has already spent 9 years as a judge. Anyone who spends time with Mike will be struck not only by his intellect but by his humility and strong commitment to justice and the rule of law. This explains why the attorney general of Wisconsin and the State's public defender--fierce adversaries in the courtroom--were able to come together to write a letter enthusiastically supporting his nomination. I have a sense those two don't often agree, but when it comes to who they want deciding their cases, they both point to Mike.

By the way, that is just one of many letters that influential members of the legal community in Wisconsin have written in support of Mike's nomination. Included in the outpouring of support are letters from 2 former Federal defenders, 5 former U.S. attorneys, more than 40 judges, and 15 former presidents of the State Bar of Wisconsin, Democrats and Republicans--all joining together to support Michael Brennan's confirmation.

One letter, signed by over two dozen Wisconsin judges from across the political spectrum, sheds light on the kind of judge Mike has been and will continue to be. It states:

To the litigants who appeared before him, Judge Brennan was

a wonderfully kind and patient judge with a humble demeanor.

Another letter attests that those same qualities have now made Judge Brennan one of the most sought-after mediators and arbitrators in Wisconsin. I am sure the litigants in the Seventh Circuit will have the same experience and reaction to his hearing their cases.

In this climate that has hyperpoliticized the judiciary, I want to bring my colleagues' attention to one very important paragraph in the letter supporting Mike that was signed by Wisconsin judges. It reads:

Finally and significantly, Mike is not an ideologue, and he

has never worn his politics on his sleeve. You could ask any

number of lawyers who appeared before him, or his colleagues

who worked alongside of him, and they will confirm that Judge

Mike Brennan never let his personal, religious, or political

views influence his legal decision in any case. He is

brilliant, experienced, hard working, and fair-minded. Rest

assured, they don't come any better than Mike Brennan.

I agree with that assessment. We all know that type of bipartisan praise isn't given; it is earned. In Mike's case, his longstanding dedication to law and public service, coupled with his ability and temperament, has won him the support of many Democrats and Republicans in Wisconsin, and it has earned him the rating of unanimously ``well qualified'' by the American Bar Association. Let me cite a few statistics to prove the ABA rating is well deserved.

In Wisconsin, a party can ask for a different judge, and they can make this request for any reason. Of the 9,000 cases Mike heard as a judge, fewer than one-tenth of 1 percent--let me repeat that--fewer than one-tenth of 1 percent of the litigants decided to go with another judge. That is an extremely telling statistic about his even-keeled temperament, his neutrality, and his legal skills.

Judge Brennan's low reversal rate also demonstrates his commitment to following the law and his dedication to performing his job with excellence. In 2005, out of 240 trial judges, Brennan was the most affirmed judge in the entire State of Wisconsin. He was No. 1 out of 240. Of the 9,000 cases Mike heard as a judge, he was reversed in only a handful of cases--fewer than 20--and in some of those, the Wisconsin Supreme Court ended up reversing the court of appeals and reinstating Brennan's original decision.

As final proof of the strong bipartisan support Michael Brennan enjoys within Wisconsin's legal community, let me provide more extensive quotes from a letter of support my office received from former Milwaukee County district attorney E. Michael McCann. Mr. McCann is a lifelong Democrat who served as the elected district attorney of Milwaukee County for 37 years. He is recognized as one of the most distinguished and accomplished district attorneys in the entire country. This is what Mr. McCann had to say about Mike Brennan on first working with Mike Brennan:

Key personnel in our office and I, in short order, became

impressed with Mr. Brennan's high energy, his mastery of the

law, his integrity, and his good judgment. As an assistant

district attorney, he was assigned to some very challenging

cases. Mr. Brennan continued to exhibit those qualities of

scholarship, integrity, and judgment which had initially

earned him our respect.

On Brennan's work as counsel for Wisconsin's truth-in-sentencing committee, Mr. McCann said:

Mr. Brennan provided splendid research and appropriate

materials to the committee and with his gracious manner moved

the committee through its very substantial workload so

felicitously that the contentious disputes I and others had

expected simply did not occur.

On Brennan as a judge, McCann--whose office had lawyers before Judge Brennan every day--said:

He was an excellent judge in all regards. He was properly

respectful of lawyers, witnesses, victims and of the rights

of defendants. His courtroom was a model of judicial decorum.

In jury trials and trials to the court and in the hearing of

motions, he was thoughtful, patient, knowledgeable, and

scholarly. He had mastery of the law and was cognizant of the

problems in the justice system. He was fair, unbiased, devoid

of prejudices and committed to justice. The comparatively

very few motions for change of judge filed in his court

quietly speaks eloquently of the perceptions of lawyers and

litigants that they were receiving justice from him.

Mr. McCann finished his letter by saying:

I urge you to confirm this nomination. Michael Brennan is

an honorable man of immense integrity, ideally qualified by

fine intellect, even disposition, extensive judicial

experience, a strong work ethic, sound judgment, good

character and a firm commitment to justice. He will be an

excellent appellate judge.

This strong endorsement is not from a Republican; it is from a lifelong Democrat who is one of the two longest serving district attorneys in any major city in America.

Based on this record, based on those endorsements, I am hopeful that when my Senate colleagues fully study his background and see the same virtues that garnered such ringing endorsements, their review will produce a strong bipartisan vote to confirm Michael Brennan to serve as judge on the U.S. Court of Appeals for the Seventh Circuit.

Mr. President, that concludes my prepared remarks about what a quality judge and jurist Judge Brennan would be, but I just have to say that I am very disappointed at the partisan nature of the cloture vote. It was unfortunate that it was completely party line for somebody who, as I have described, has bipartisan support within the Wisconsin legal community.

The Judiciary Committee majority issued an excellent memorandum dated November 2, 2017. I would like to discuss and address the primary objection that led to that unfortunate party-line vote on cloture. I am really hoping our colleagues on the other side of the aisle will take this to heart and take the background--the bipartisan support from the Wisconsin legal community--when they cast their final vote on confirmation.

Mr. President, I ask unanimous consent to have printed in the Record the Judiciary Committee's November 2, 2017, memorandum.

Mr. President, rather than read this excellent memorandum, which I would encourage my colleagues to do, let me give a brief history, a little summary of what that memorandum states on the history of the blue slip.

The blue-slip courtesy was created in 1917, so it has basically been around for 101 years. Only 2 of 18 Judiciary Committee chairmen have allowed the blue slip to become an absolute veto blocking consideration and confirmation of judges. Those two chairmen were James Eastland between 1956 and 1978--so that was for a 22-year period--and then Senator Patrick Leahy for about 10 years. So of the 101 years that the blue-slip courtesy has been around, for only 32 of those years has the blue slip been used as an absolute veto by any Senator.

Looking further at the history--and I think it is relevant to a confirmation for Wisconsin's seat on the Seventh Circuit--in 1981, Wisconsin Senator William Proxmire returned a negative blue slip on Judge John Shabaz, a nominee to be a district judge. The Senate took that negative blue slip into consideration, but the committee still held a hearing, and the Senate voted to confirm the judge as a district judge. The next year, 1982, Senator Proxmire again returned a negative blue slip on a circuit judge nominee, Judge John Coffey. Once again, the committee took that blue slip into consideration but still held a hearing, and the Senate confirmed Judge Coffey later that year.

It is apparent that a blue slip--historically and by precedent for two-thirds of the 101 years in which the blue slip has been around--has not been used as an absolute veto by one single Senator but basically as advice, a particular Senator's view on a judge. I would suggest that is exactly the way the blue slip should be handled in the future, particularly in light of Senator Harry Reid, the majority leader in 2013, who employed the nuclear option and changed the Senate forever. He changed the rules of the Senate as they relate to confirming nominations with a mere majority. That, in effect, eviscerated the blue slip's possibility of being used as a veto because then there was no way a minority could block or actually support and confirm that blue slip. Harry Reid's precedent of changing the rules of the Senate with just 51 votes--changing the rules so that only a majority vote would confirm a judge--has pretty well rendered the blue slip moot from the standpoint of being able to block a judge.

The blue slip, from my standpoint, should be used primarily as the advice and consent of one Senator expressing opinion on a judge from their State. That is just a general description of the history of the blue slip.

I would like to address specifically the comments made around this particular circuit court vacancy and my role in it because I think there has been a lot of distortion. Let me correct the record. It is true that this circuit court vacancy is the longest in history. It has dragged on for a variety of reasons, but let me give you the history.

On January 17, 2010, Judge Terence Evans retired from the Seventh Circuit. President Obama was in office, and Wisconsin had two Democratic Senators, Senator Kohl and Senator Feingold. Five days later, on January 22, those two Senators, Kohl and Feingold, recommended four candidates to President Obama.

On July 14, 2010, President Obama nominated Victoria Nourse for that

Seventh Circuit slot. Ms. Nourse was not really a member of the Wisconsin legal community. She was an adjunct professor temporarily in Wisconsin. There was some tie there, but basically she had no other ties to Wisconsin. She was actually a former staffer and would become a future staffer of Vice President Biden.

On November 2, 2010, Wisconsin held an election for the Senate. To Senator Feingold's surprise, he was retired; I replaced him. There was no action taken from the date of July 14, when President Obama had nominated Victoria Nourse. In a Senate with a majority of Democrats and a Democratic President, there was no action taken prior to Congress expiring--the 111th Congress. So that nomination expired.

On January 3, 2011, the 112th Congress was sworn in. Within a few days, I received two blue slips on judicial nominations--one for a district judge and Victoria Nourse's nomination for the Seventh Circuit judgeship. I had just been elected. More than a million Wisconsinites voted for me. I had no role whatsoever in the nomination of this judge. So I decided not to return the blue slip.

This was during a time period when Chairman Leahy was using the blue slip as an absolute veto. It was still the precedent in the Senate that it would require 60 votes to confirm any judge. Any minority member of the Senate who objected to a judicial nomination would be backed up by his party, and the nomination could be thwarted.

I continued to work with Senator Kohl, trying to become involved in the nomination of someone who I felt would be more appropriate for that seat--someone who actually had a connection to the Wisconsin community. Unfortunately, Senator Kohl did not have a great deal of interest in working with me, so the entire 112th Congress passed, and the seat remained vacant.

Let me remind you that through the entire year of 2010, the Seventh Circuit seat from Wisconsin was vacant when we had two Democratic Senators and President Obama. They could have nominated and confirmed someone any time during 2010. I was given no input into this nomination. The only thing I could really do was withhold the blue slip and work with Wisconsin's Democratic Senator to come up with a nominee who would be a good consensus choice.

Senator Kohl decided not to run for reelection. Senator Tammy Baldwin was elected in November 2012 and began her term in 2013. Because I felt it was so important that the judicial nominations be made and that we have a process to work on a bipartisan basis, I recommended a commission--a compact with Senator Baldwin, which she agreed to. I would have three commissioners, and she would have three commissioners of people tied to the Wisconsin legal community--people dedicated to filling those judicial vacancies. The beauty of it was that it forced a consensus pick. We would forward to the President only someone who would receive support from five out of the six commissioners. It worked well.

The commission was set up. We nominated and confirmed district court judges for the Eastern District, Pam Pepper, and the Western District, James Peterson.

It would be a little more difficult to fill the seat on the Seventh Circuit. Our commission started working on that. One part of our compact required that four recommendations for judges be sent to the President. Because the applicant pool was limited, only two received the requisite five out of six votes. During the discussion of what we should do--because we hadn't fulfilled the terms of the compact that required four judges--I agreed to submit just the two. For whatever reason, Senator Baldwin decided to forward to President Obama all eight applicants. She breached the compact. She violated the confidentiality of the process because part of the problem was that some of those applicants received zero to one or two votes.

In the end, President Obama nominated Don Schott. He is a fine man. I have no problem with who Mr. Schott is, but let's be honest, he is probably not my first pick for a judge on the Seventh Circuit. However, because the commission had nominated him and agreed on it, I returned the blue slip.

Unfortunately, because of the politicization of the commission by Senator Baldwin, the Senate Judiciary did not act on that nomination, nor did the Senate, and that nomination expired, which brings us to the 114th Congress and Judge Brennan's nomination.

Again, I have spent probably about 10 minutes reading in detail the strong bipartisan support for Michael Brennan. There is no reason whatsoever that he should not receive a strong bipartisan vote for confirmation. I have described what happened specifically. I described the general precedent of the use of blue slips--not to be used as a veto but simply to indicate a Senator's opinion of a particular judge nominated from their State. It should not be used for a veto.

I urge all my Senate colleagues to provide a strong bipartisan vote of support for a fine man, a fine jurist, and someone who will make a wonderful judge on the Seventh Circuit Court of Appeals.

With that, I yield the floor.

Mr. President, I realize the hour is late. I will move quickly to my unanimous consent request, but I want to quickly state that this is so important that this can't wait, and I am really asking a pretty simple request of my colleagues that we stop playing games with people's lives because it is well past time that we passed the Right to Try. The Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2018.

We passed this unanimously through the Senate in August. The House has acted now. I am just asking my colleagues, please, these desperate patients are terminally ill, and they have waited far too long.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 5247, which was received from the House. I ask unanimous consent that the bill be considered read a third time and passed and the motion to reconsider be considered made and laid upon the table.

Mr. President, I do want to point out the fact that the Right to Try bill only allows access to drugs that have already passed phase 1 safety approval from the FDA. There has been an awful lot of misunderstanding from that standpoint.

All we are asking is, what this bill would do is allow terminal patients who have no other options--they have exhausted all treatment options, they do not qualify for a clinical trial, they are near death or, according to the House bill, subject to severely premature death. It just gives those individuals the right to choose for themselves, not have a faceless bureaucrat at the FDA make that decision.

We passed this unanimously from the good efforts of my colleague, the Senator from Indiana, who will speak shortly, but also Senators Alexander and Murray. We spent many hours in discussion crafting a bill that passed unanimously.

By the way, that didn't surprise me because out of the 39 States that passed Right to Try through their legislature, 38 have passed it and signed it into law. Of the legislators who voted for Right to Try, 98 percent have voted yes. That is a vote tally of 5,604 to 126 because it makes so much sense to give those terminally ill patients the freedom to make those decisions themselves.

The good news is, the House passed the Right to Try bill--not unanimously--with bipartisan support. The vote was 267 to 149, and 35 Democrats joined, most Republicans voting yes. A lot of that was due to the good efforts from my Democratic colleague, the Senator from Indiana.

I want to give a brief history on Right to Try in terms of my involvement. I first went to the Goldwater Institute in 2014. They, through their efforts, decided to go through the strategy of having States pass it, and Colorado was the first State to pass Right to Try in 2014.

Shortly after that meeting, I met a young mom, Trickett Wendler, a mother of three children. She had ALS. I just mentioned the fact that I had met with the Goldwater Institute, and I was fully in support of Right to Try, and tears started streaming down the face of Trickett Wendler. That is when I decided to become the champion and lead sponsor of Right to Try in this body. Unfortunately, Trickett Wendler lost her battle with ALS in March of 2015.

I want to briefly mention the other individuals for whom this bill is named. Matt Bellina, a former lieutenant commander, Navy pilot, married to

his wife Caitlyn Bellina, and he has three boys.

This is what Matt Bellina said in testimony:

Please let them know that I have had ALS too long to meet

the exclusion criteria for any promising trials. No drug

company will offer me treatments under the current expanded

access guidelines. Two reputable companies have already

indicated that they would try to treat me under the rules of

this bill. A vote against this is essentially a vote to kill

me. It is a vote to make my wife a widow and leave my boys

fatherless. I can't stop anyone from voting that way, but

please ask them to have respect to look my family in the eye

when they cast their vote.

Frank Mongiello is another victim of ALS. I just met with him a few hours ago. I first met with him when he could speak--he can no longer speak--but he spoke at our press conference, and here is his quote. He paraphrased Abraham Lincoln and he said:

President Lincoln said, ``If I am killed, I die only once;

but if I dread it, I die over and over again.''

Frank went on to say:

I have an 80-percent chance to be dead in 2 years, and, for

me, seeing these potential drugs out on the market and not

being able to take them is like dying over and over again.

The final namesake of this bill is little Jordan McLinn. We met him when he was 6 years old, and now he is 8. His mother Laura is a tireless advocate. I know the Senator from Indiana knows the McLinns well.

The FDA advisory committee on April 25 heard from, I think, 55 witnesses about a drug called eteplirsen to treat Duchenne's muscular dystrophy. The advisory committee, having heard from people like Laura and Jordan McLinn wanting access to that drug, voted no. Fortunately, the FDA--and this is pretty rare--overruled the advisory committee, and Jordan now is at least being treated. They are tireless advocates for Right to Try.

These are the people we need to help. These are the people whom Right to Try was meant for.

I don't know why it took the House 7 months to craft a bill and finally vote on it. I can't tell you how many people during that 7 months sought treatment in other countries. I can't tell you if anyone during that time period possibly lost their life because they didn't have access to treatment. I don't know why the House felt compelled to change the bill that we carefully crafted that passed unanimously. I don't know why they simply didn't take up the Senate bill and pass it, but I do know Right to Try saves lives.

I will quote one example, Dr. Delpassand, a courageous oncologist from Houston. He was engaged in an FDA trial treating an aggressive form of endocrine cancer. It was working. So he petitioned the FDA to allow additional patients to be added to the trial. The FDA said no, but Dr. Delpassand had a Right to Try bill in Texas. It didn't have liability protection. He risked his career and all of his possessions and he signed up additional people under the Texas Right to Try laws.

In the end, he signed up 176 people. We just checked with Dr. Delpassand, and 148 of those individuals are still alive today because of his courage. That is why we need to pass a Federal Right to Try law, so individuals with that level of courage don't risk their careers, and those patients have a chance to live.

I would like to yield to the Senator from Indiana for his remarks.

Mr. President, I thank the Senator from Indiana who has been a real champion and a real partner. I know he tried to get as many House Members to vote for the House bill as he could.

By the way, that was the good news. I am calling on the House now, since we have an objection in the Senate on their bill, to please take up the Senate bill. It is a nonpartisan bill that passed unanimously through the Senate. Don't wait another hour. I know they are in recess for a couple weeks, but I am calling on them, as soon as they come back from recess, take up the Senate bill, pass it, and get it on the President's desk. It is well past time to give these patients, these terminally ill patients and their families, the Right to Try and the right to hope. So I want to again thank the Senator from Indiana.

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

Mr. President, I understand there is a bill at the desk, and I ask for its first reading.

I now ask for a second reading and, in order to place the bill on the calendar under the provisions of rule XIV, I object to my own request.

Mr. President, I ask unanimous consent that the Committee on Finance be discharged from further consideration of H.R. 4547 and the Senate proceed to its immediate consideration.

I ask unanimous consent that the bill be considered read a third time and passed and the motion to reconsider be considered made and laid upon the table.