Floor Statements

Mr. President, I would like to take a moment to congratulate Wright Elementary School in Des Moines, IA, which was granted the Energy Star Rating in recognition of its achievements and practices in energy conservation.

The Energy Star Program is jointly managed by the U.S. Environmental Protection Agency and U.S. Department of Energy to reduce energy consumption and greenhouse gas emissions. This program encourages many

facets of energy efficiency. In order to attain the Energy Star Rating, schools must score in the top 25 percent under EPA's national rating performance system.

At a time when the United States leads the world in energy consumption and emissions of greenhouse gases, Wright Elementary is serving as a role model for schools across the Nation. Under the guidance of the Des Moines School District, Wright became an Energy Star Partner in May 2008. Wright has reduced its energy consumption, operating costs, and greenhouse gas emissions. Simple measures such as turning off lights, computers, and convenience appliances have made a big difference.

It is important that we recognize the accomplishments of schools like Wright Elementary. Along with helping the environment, Wright is also saving the school district money. During these tough economic times, with school budgets under extreme pressure, this is more important than ever. Just as important, these energy conservation actions by the Wright Elementary community instill a strong sense of environmental and natural resource stewardship. Wright Elementary's students, teachers, and staff are fostering excellent habits of conscientious citizenship.

Wright Elementary has proven that simple changes in daily practices can make a big difference. By setting attainable goals and being persistent, this school community was able to make significant improvements. I offer my sincere congratulations to everyone at Wright Elementary School for their commitment to energy efficiency and conservation. They make the State of Iowa proud.

Mr. President, this past week, New York Times columnist Gail Collins noted that ``Washington was immobilized by snow on Friday. This is highly unusual. Normally, Washington is immobilized by senators.''

Sadly, Gail Collins is right. The unprecedented abuse of Senate rules by Republicans has overwhelmed the legislative process. The same week that Washington saw a large snow storm shut down the city and close the Federal Government, we saw the unprecedented action of a minority blocking Senate confirmation of every single executive branch nominee. Last week, we saw Republicans require the Senate to debate for 30 hours one Department of Labor nominee in lieu of conducting other business and I use the term ``debate'' generously since during that time one Member spoke in opposition to her confirmation. This Congress, we have seen the minority require the Senate clerk to read lengthy bills out loud. And, most significantly, the minority has used the filibuster at an unheard of level in the history of this body.

The U.S. Senate cannot continue to function this way. That is why today I am introducing a bill to change the Standing Rules of the Senate to reform the cloture procedure in the U.S. Senate. I am introducing this bill as a member of the majority party in the Senate. I note, however, that this bill is identical to the one I first introduced in 1995, when I was a member of the minority party in the Senate. So this legislation is not about one party or the other gaining an advantage. It is about the Senate as an institution operating more fairly, effectively, and democratically.

I will explain the details of my proposal shortly. But first I would like to provide some historical background.

In 1995, for the first time in 8 years I found myself a member of the minority party in the Senate. At the beginning of that Congress, although Republicans outnumbered Democrats 53 to 47, I introduced legislation to change the Senate rules regarding the filibuster. My plan would have ensured ample debate and deliberation--the original purpose of the filibuster--but it would have allowed a bill, over time, to be passed by a simple majority vote. Unfortunately, my proposal did not pass.

In the intervening years, it has become even more apparent that for our government to properly function, we must reform and curb the use of the filibuster.

I readily acknowledge, changing the Senate rules is a tall order; and my goal is not to change the rules halfway through the 111th Congress. Instead, it is to lay down a marker and to focus attention on the unprecedented level of obstruction that occurs in the Senate today. The sad reality is that, today, because of the promiscuous use of the filibuster, the ability of our government to legislate and to address problems is severely jeopardized.

The filibuster was once an extraordinary tool used in the rarest of instances. When many people think of the filibuster they think of the climax of the classic film ``Mr. Smith Goes to Washington,'' when Jimmy Stewart's character singlehandedly uses a filibuster to stop a corrupt piece of legislation favored by special interests.

The reality is that in 1939, the year ``Mr. Smith Goes to Washington'' was filmed, there were zero filibusters in this body. In the 1950s, there was an average of just one filibuster per Congress.

Yet, over the past half century, the use of this device has grown exponentially. The concerns I raise today are not new. The problem, however, has become far more serious.

In 1982, my good friend and colleague Senator Dale Bumpers of Arkansas said this about procedures like the filibuster:

Unless we recognize that things are out of control and

procedures have to be changed, we'll never be an effective

legislative body again.

During the 2 years of that Congress, the 97th, there were 31 filibusters, as measured by the number of cloture motions filed.

In 1985, former Senator Thomas Eagleton of Missouri remarked:

The Senate is now in the state of incipient anarchy. The

filibuster, once used, by and large, as an occasional

exercise in civil rights matters, has now become a routine

frolic in almost all matters. Whereas our rules were devised

to guarantee full and free debate, they now guarantee

unbridled chaos.

During that Congress, the 99th, there were 40 filibusters.

In 1994, former Senator Charles Mathias of Maryland said:

Today, filibusters are far less visible but far more

frequent. The filibuster has become an epidemic used whenever

a coalition can find 41 votes to oppose legislation. The

distinction between voting against legislation and blocking a

vote, between opposing and obstructing, has nearly

disappeared.

During that Congress, the 103rd, right before I first introduced legislation to modify the filibuster, there were 80 filibusters.

Remarkably, from 1995 through 2008, the number of filibusters per Congress has increased 75 percent. In the last Congress, the 110th Congress, there were an astonishing 139 motions to end filibusters.

In the current 111th Congress, now near its midpoint, there have been 74. Last year alone, in one year--2009--there were 67 filibusters. In just 1 year, Republicans tripled the amount of filibusters that occurred in the entire 20-year period between 1950 and 1969.

I would also point out that, according to a study by UCLA Professor Barbara Sinclair, in the 1960s, just 8 percent of major bills were subject to a filibuster. In the last Congress, 70 percent of major bills were targeted.

The simple fact is that, today, rather than an unusual event, the filibuster, or the threat of a filibuster, has become a routine occurrence. Let me repeat these figures. In the 1950s, an average of one bill was filibustered in each Congress. In the 104th Congress, when Democrats were in the minority, there were 82 filibusters. In the last Congress, 139 bills were filibustered. In the current Congress, there have already been 74 filibusters.

What was once a procedure used very rarely and judiciously has become an almost daily procedure used routinely and often recklessly.

A quarter century ago, faced with 40 filibusters in the course of one Congress, Senator Eagleton remarked that the Senate was in a situation of ``unbridled chaos.''

Sixteen years ago, faced with 80 filibusters in one Congress, Senator Mathias warned that the Senate was facing an ``epidemic.''

In this Congress, we are on pace to far surpass those earlier numbers. At the current pace, we will face approximately 140 filibusters in the 111th Congress. It is no accident that Norm Ornstein, the esteemed Congressional scholar, wrote an article in 2008 titled ``Our Broken Senate.''

And, it is not just scholars. Editorials throughout the country have recognized that the use of the filibuster must be changed. The Newark Star-Ledger called the filibuster a ``rule that cripples our democracy.'' The San Jose Mercury News recently noted that the ``Senate's abuse of filibuster rule threatens democracy.'' The Sacramento Bee wrote that it is ``time to bust up [the] filibuster.''

The extraordinary number of filibusters by Republicans are not just statistics. Behind each filibuster is an attempt by Republicans to block the majority from passing legislation and confirming nominees to help everyday working Americans.

In the 71 years since Hollywood filmed ``Mr. Smith Goes to Washington,'' the aim of the filibuster has been turned completely upside down. Seven decades ago, Jimmy Stewart, ``Senator Smith,'' was the little guy using the filibuster to battle the special interests. Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy.

What is particularly striking, moreover, is not just the sheer number of filibusters today. It is the fact that this once rare tactic--what was once a dramatic challenge to majority rule only used in extraordinary circumstances--is now used or threatened to be used on virtually every measure and every nominee. To quote Norm Ornstein:

The Senate has taken the term ``deliberative'' to a new

level, slowing not just contentious legislation but also

bills that have overwhelming support.

For example, late last year, the Republicans filibustered a motion to proceed to the Defense Appropriations bill for the sole purpose to delay a vote on health care reform. In other words, Republicans risked denying our troops the resources they need at a time of war for no other purpose than to delay the Senate. After a filibuster and delay, the bill passed 88 to 10.

The Republicans filibustered a motion to proceed to a bill to extend unemployment compensation. After delaying and then grinding Senate business to a halt, the bill passed 97 to l. In other words, Republicans filibustered a bill they fully intended to support, simply in order to stall or stop business in the Senate.

Similarly, the Republicans filibustered the agriculture appropriations bill that funded key agriculture, conservation, and nutrition programs. That bill passed 84 to 11.

The Republicans filibustered the Credit Card Holders Bill of Rights. That bill passed 92 to 2.

The Republicans filibustered the Fraud Enforcement and Recovery Act. That bill passed 84 to 4.

As the Defense Appropriations bill and unemployment compensation bill examples show, in many cases Republicans have filibustered motions to proceed. This is truly remarkable. In fact, last Congress there were over 50 filibusters of motions to proceed to consider bills. Republicans filibustered efforts for this body to consider efforts to provide low-income home energy assistance, efforts to strengthen the Consumer Product Safety Commission to ensure our children are not exposed to unsafe toys, and efforts to ensure women are guaranteed equal pay for equal work. In all of these cases and many others, Republicans objected to this body even bringing up for debate and deliberation important issues that matter to the American people.

There is absolutely no purpose to filibuster a motion to proceed except delay and obstruction. If one does not like a piece of legislation, one has an opportunity to offer amendments to try to improve the measure. But one cannot do that if the Senate is prevented from even considering a bill.

One of the most striking features of the abuse of this extraordinary tool by Republicans is how quickly it has become accepted that literally any legislation needs 60 votes to pass the Senate. If 41 senators do not like a bill, it does not get a vote. Newspapers and pundits regularly pronounce that 60 votes are ``needed to pass the bill'', even as we all know, only 51 Senators are, in fact, needed.

So accepted is this extraordinary abuse by the minority, that after the most recent election in Massachusetts, the media regularly pronounced that Democrats going from a 20-seat majority to an 18-seat majority was the equivalent to losing majority status. A Philadelphia Metro newspaper headline asked: ``How will Dems recover after losing majority?'' CNN reported: ``Brown's election tips Senate balance of power to GOP.'' The New York Times reported that ``Brown's Senate win has cost them their razor-thin advantage.'' One paper, the Village Voice, even wrote satirically, ``Scott Brown wins Mass. Race, Giving GOP 41-59 Majority in the Senate.'' When the rules are abused in such a manner that a majority of 18 seats is now treated as the equivalent to being in the minority, it is time to change the rules.

This is not how it is supposed to be. To be sure, the Founders put in place a system of checks and balances that made it difficult to enact legislation. A bill must pass in both Houses of Congress. It is then subject to the President's veto power. A law can be challenged in court. These are all very significant checks.

What was never intended, however, was that a supermajority of 60 votes would be needed to enact virtually any piece of legislation. Indeed, the Framers of the Constitution were very clear about circumstances where a supermajority is required. There were only five: ratification of a treaty, override of a veto, votes of impeachment, passage of a constitutional amendment, and the expulsion of a Member.

James Madison specifically rejected the idea that more than a majority would be needed for decisions. Responding to anti-Federalist arguments that the Constitution should have required more than a majority, Madison argued that such rules would lead to minority rule, something inconsistent with fundamental republican principles. As he wrote in Federalist No. 58:

That some advantages might have resulted from such a

precaution, cannot be denied. It might have been an

additional shield to some particular interests, and another

obstacle generally to hasty and partial measures. But these

considerations are outweighed by the inconveniences in the

opposite scale. In all cases where justice or the general

good might require new laws to be passed, or active measures

to be pursued, the fundamental principle of free government

would be reversed. It would no longer be the majority that

would rule; the power would be transferred to the minority.

James Madison would be appalled by the current abuse of the filibuster to impose minority rule.

Proponents of the filibuster regularly quote the oft told story of George Washington's description of the Senate to Thomas Jefferson. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate. ``Why,'' asked Washington, ``did you just now pour that coffee into your saucer before drinking it?'' ``To cool it,'' said Jefferson. ``Even so,'' said Washington,'' ``we pour our legislation into the Senatorial saucer to cool it.''

As one author recently noted, however, the increasing use of the filibuster has converted the Senate from the ``saucer'' George Washington intended, in which scalding ideas from the more passionate House of Representatives might ``cool'' into a ``deep freeze and a dead weight.''

At issue is a fundamental principle of our democracy--rule of the majority in a legislative body. As Alexander Hamilton noted in the Federalist Papers, ``The fundamental maxim of republican government . . . requires that the sense of the majority should prevail.''

Mr. President, elections should have consequences. My feeling in 1995 was that if the Nation elects a majority of Republicans to the Senate, as it did, then after the minority has an opportunity to make its case, the majority should prevail. And, it should be the same when the people send a majority

of Democrats to the Senate. If the people do not like how the majority is governing, then they have the ability to change the composition of the Senate at the next election.

Fifteen months ago, a sizable majority of voters sent Democrats to Washington to implement real change and reform. It is no surprise that people are now frustrated. Largely, because of the filibuster their hopes for change have been frustrated. Instead, the public sees nothing but gridlock.

Because of Senate rules, a minority as small as one Senator can block action by the majority. Even when a party is resoundingly repudiated at the polls, that party retains the power, thanks to the filibuster, to prevent the majority from legislating and effectively governing. Regrettably, the filibuster has become a bludgeon that the minority uses to thwart the will of the majority, to mire the Senate in procedural impasses and repeatedly to hold the entire Senate hostage for extended periods of time. Today, even simple, noncontroversial bills and nominations are not permitted to come to a vote. This is wrong. As a result of the filibuster, the legislative process itself has been overwhelmed.

The legislation I introduce today would amend the Standing Rules of the Senate to permit a decreasing majority of Senators to invoke cloture on a given matter. On the first cloture vote, 60 votes would be needed to end debate. If the motion does not get 60 votes, a Senator can file another cloture motion and two days later have another vote; that vote would require 57 votes to end debate. If cloture is not obtained, a Senator can file another cloture motion and wait two more days; in that vote, 54 votes would be required to end debate. If cloture is still not obtained, a Senator could file one more cloture motion, wait 2 more days, and--at that point--just 51 votes would be needed to move to the merits of the bill.

Let me be clear, this proposal has absolutely nothing to do with limiting minority rights. Under this proposal, a determined minority could slow down any bill. In this way, proper deliberation is ensured. Senators would have ample time to make their arguments and attempt to persuade the public and a majority of colleagues. However, a minority of members would no longer be able to stymie the majority by grinding the Senate to a halt, as sadly too regularly happens today.

Mr. President, this is hardly radical legislation. There are currently numerous rules and laws that forbid the filibuster in numerous circumstances. For example, we cannot filibuster a federal budget resolution. We cannot filibuster a resolution authorizing the use of force. We cannot filibuster international trade agreements. We cannot filibuster a reconciliation bill.

Reform of the filibuster should not be a Democrat or Republican issue. Indeed, it was the former Republican Majority Leader Bill Frist who said when he nearly shut this body down over the use of filibusters: ``This filibuster is nothing less than a formula for tyranny by the minority.''

A majority in this body--whether Democratic Senators, Republican Senators, or a bipartisan coalition of Senators--should be allowed to work its will. When a given party wins the Presidency and both houses of Congress by significant margins, that party should be allowed to carry out its agenda, and then should be held accountable in the next election.

But, I do not see how we can effectively govern a 21st century superpower when a minority of just 41 senators can dictate action--or inaction--not just to the majority of senators but to a majority of the American people. This is all the more true when you consider that those 41 senators could come from small states and represent as little as 15 percent of the American population. This is not democratic. Certainly, it is not the kind of democracy envisioned and intended by our Founders. Instead, it is a sure-fire formula for national paralysis, drift, and decline.

I urge my colleagues to join me in restoring the best traditions of the United States Senate, a legislative body committed to debate and deliberation, but also one guided by our Founders' bedrock democratic principles of majority rule.

Yes.

Madam President, I ask unanimous consent that the February 4 order with respect to the Executive Calendar be further modified to provide that the debate time be extended until 4 p.m., and that at 4 p.m., the Senate proceed to vote on the nomination of Joseph Greenaway, with the time until then divided as previously ordered, and that the remaining provisions of the February 4 order, as modified, still be in effect.

Madam President, with only half an hour to go, we are here today to consider two things, but I think most important--and what is on everyone's mind now--is the nomination of Harold Craig Becker to serve as a member of the National Labor Relations Board.

I first wish to thank my colleague from Ohio for a very poignant and pointed and very clear kind of laying out of what this is really all about. So I thank Senator Brown for that.

While I am always proud to discuss the accomplishments of a highly qualified nominee such as Mr. Becker, it is unfortunate we got to this point. Last year, we had an agreement with the Republicans on the HELP Committee that we would move Mr. Becker's nomination as a package, along with the other two pending nominees for the Board, one of whom is a Republican. Well, what happened is, at the end of the year, under the rules of the Senate, one Senator on the Republican side objected to having Mr. Becker continue on the calendar. It is clearly their right, but they did that, and so it went back to the White House and then came back to us.

I was asked, as the chairman of the committee, to have a hearing on Mr. Becker. We haven't had a hearing on a nominee for the NLRB since 1985. We had a hearing for someone to be chairman, but just for a member, not since 1985. Since that time, we have always worked together in a bipartisan fashion to have a package. When there is a Republican President, it is usually two Republicans and one Democrat. When there is a Democratic President, it is usually two Democrats and one Republican. But we have never had any hearings on this.

I didn't have to have a hearing on Mr. Becker, but I decided to bend over backward and say: Look, OK, fine, let's have a hearing on Mr. Becker. I could have had a hearing with all three of them. I could have had the Republican up there too. Maybe we could have given him 400 questions. But I don't like to play those games.

So we had a hearing, and Mr. Becker came. I thought he presented himself extremely well, answered all the questions, and then we moved ahead on the nomination. But we had that package before, and that package was supported on a bipartisan basis. But once Mr. Becker got separated from the package by the actions of one Republican Senator, as I just mentioned, well, now it is OK to move two of them but not Mr. Becker. Well, I find that disconcerting. I find it very disconcerting. That agreement has now been abandoned. It is too bad because there are many other important ways we could be using our time in the Senate rather than on just a routine nomination.

That is not to say the work of the NLRB is not important. It is critical, especially in these troubled and turbulent times. The NLRB is a small agency, but its mission is large. Listen to the words of the National Labor Relations Act that sets up the NLRB:

The NLRB's mission is to encourage the practice and

procedure of collective bargaining and to protect the

exercise by workers of full freedom of association.

Let me say that again:

. . . to encourage the practice and procedure of collective

bargaining.

That doesn't say the NLRB is just supposed to sit back and say: Well, we don't care whether someone is unionized or not unionized; we don't care whether someone is able to use collective bargaining. That is not the law of the land. Read the law. They are to encourage the practice and procedure of collective bargaining. So when I hear people get up and say that someone on the Board is going to be pro-union or pro- collective bargaining, I say: Well, that is kind of in keeping with the very words that establish the National Labor Relations Board.

In today's challenging economy, when workers are vulnerable, worrying about their future, it is critically important to have strong leadership on the Board that understands its mandate. I believe very strongly in the mission of the NLRB, and I have a deep respect and admiration for the dedicated people who work there. But I have made no secret of the fact that I am troubled by some aspects of the Board's recent performance.

In recent years, the Board is not doing all it can to inform workers of their rights or to assess appropriate penalties for repeat violators of our labor laws. And that is not to mention the excessive delays at the Board, because we know justice delayed is justice denied in many cases.

There is no real penalty for violating workers' rights. In the last 4 years, the median time to process an unfair labor practice charge at the Board has averaged about 782 days. That is more than 2 years. The median time between the petition for an election and the time when the Board certifies the results of a disputed election is 308 days. What does this mean? It means that if someone is exercising his or her legal right

to help organize a union and the employer fires that person, which is a violation of the National Labor Relations Act, and that employee then files a case with the NLRB, it takes over 2 years to get to it. Well, that person is fired. What does that person do? Suppose that person--he or she--is married; they have a couple of kids and they need that income, so they have to get another job. They have to get another job. Now 2 years have gone by, and the National Labor Relations Board finds in favor of the employee who was wrongly fired. What does the employer have to do? The employer has to pay back wages minus any other wages that employee made during that intervening time. Well, if that employee was lucky enough to get a job that paid as well, that means the employer pays nothing--nothing. So is it any wonder employers feel they can just fire people willy-nilly for exercising their right to form a union, when there is really no penalty?

That is what is happening today. It is a serious problem, and we have to put this agency back on track. They have to close down that amount of time. I am confident Craig Becker can be an important part of that effort. He is one of the preeminent labor law thinkers in the United States and, I might add, a proud son of the State of Iowa, born and raised in Iowa. His father was a professor at the university. He has taught labor law at some of our finest law schools, including Georgetown, UCLA, and the University of Chicago, and he has authored numerous articles on labor and employment issues. He is also a skilled litigator who has advocated for workers' interests in the highest courts of this land. He has argued cases in virtually every court of appeals and before the U.S. Supreme Court. I have met with him and spoken with him at length, and I know he will be an invaluable addition to the NLRB. He is an expert on the law, he knows the Board, and he brings a tremendous depth of experience to this important position.

His impressive accomplishments have earned the respect of his colleagues in the bar and his colleagues in the academy. This committee has received several letters of recommendation from management-side attorneys--people who have litigated against Mr. Becker as adversaries--praising his virtues and his potential as a Board member. This chart reflects the comments of one such attorney:

Over the years, I have worked with Mr. Becker on a number

of complex issues and cases. Although we were both aggressive

advocates for our respective clients and their positions, we

were always able to have an open dialogue. I believe that Mr.

Becker always took the time to understand the issues from the

employer's side, and was willing to work creatively toward

amicable resolutions of the issues. Based on my many

experiences, I believe that Mr. Becker's integrity is

exceptional, as is his knowledge of labor law, and he will be

fair, hard-working, and an asset to the NLRB Board.

That is a quote from an attorney who represents management.

Another one said:

I have read of the concerns expressed by some that Mr.

Becker would prove ``doctrinaire'' and/or biased toward

unions in his application of the NLRA. It is my honest

opinion, based on firsthand experience dealing with him, that

these concerns are completely unfounded. On the contrary, I

am convinced that Mr. Becker would demonstrate fairness,

integrity, sound judgment, and an abiding respect for all the

Congressionally mandated rights of employers, unions, and

employees alike. I respectfully urge you to support his

confirmation.

Madam President, I ask unanimous consent to have printed in the Record both of the letters from which I have just quoted, along with other letters and an endorsement from more than 60 law professors.

As these records show, those who know Mr. Becker the best all agree the President could not have made a better choice.

Unfortunately, Mr. Becker's nomination has been delayed for months on end due to criticisms that are based on misinformation and misleading descriptions of his views. Mr. Becker has gone to great lengths to dispel those concerns and set the record straight. The first time his nomination was considered by this committee last year, he answered 282 written questions from committee Republicans. He also said he would meet with any Senator who expressed an interest to personally explain his views. Only two asked to meet with him. This year, he testified before the HELP Committee, as I mentioned earlier, and answered 158 additional questions. To put this in perspective, Justice Sotomayor, seeking a lifetime appointment on the Supreme Court, only had 220 questions submitted to her.

While this exhaustive vetting process should have alleviated any concerns about Mr. Becker's nomination, it appears there is still a lot of misinformation going around, so I would like to take this opportunity to set the record straight once and for all--not that I think what I am about to say or the letters and things I will point to will change any Republican minds. It seems as though their minds are made up en bloc that they are going to oppose Mr. Becker, just as they opposed Patricia Smith. But I think it is important for the general public to get the facts and to understand what this is all about.

First and foremost, critics have suggested Mr. Becker would come to the Board with an agenda and that he would try to implement the Employee Free Choice Act by administrative fiat.

As you are all aware, I am a supporter of the Employee Free Choice Act, as is President Obama. He campaigned on it. I hope to see it passed by Congress. I look forward to the debate. I hope it is signed into law by the President. But I have no illusions that those important changes can somehow be accomplished administratively, and neither does Craig Becker. He has clearly and consistently explained on numerous occasions that all three major reforms in the Employee Free Choice Act--the card check, binding arbitration for first contracts, and increased penalties for violations of the law--cannot be accomplished without a change in the statute. As we all know, statutes can only be amended by those of us elected to Congress, not by appointees to the NLRB. Mr. Becker was unequivocal in his responses on this point.

Let's take a look at what Mr. Becker says and not what others say about him, not what others would like him to do. We heard a lot about that on Patricia Smith a week ago, on what others said, but let's take a look at what Mr. Becker has to say.

On the issue of card check, he states:

The reason the Employee Free Choice Act has been introduced

in Congress and the reason that question is before Congress

and not the Board is that the current Act clearly precludes

certification in the absence of a secret ballot election.

Section 9 of the Act, in two distinct ways, makes clear that

Congress has intended that a secret ballot election be

preconditioned for certification of the union.

So, again, what Mr. Becker has said is that the Board can't change that.

On binding arbitration, he said:

The second section [of EFCA] establishes procedures for

mediation and, if necessary,

binding arbitration in circumstances where a union or

employer engaged in bargaining for a first contract are

unable to reach agreement. Action by Congress would also be

required to implement these procedures.

So on the second part of the Employee Free Choice Act, Mr. Becker says that only Congress can change it.

Finally, in discussing the new penalties about which I spoke a little bit ago, Mr. Becker says:

The third and final section of EFCA would establish civil

penalties and a treble backpay remedy for certain unfair

labor practices. I do not believe the Board has authority to

award double or triple backpay as a remedy for a violation of

Section 8(a)(3) without congressional action nor do I believe

that section 10 currently vests in the Board the authority to

impose the penalties discussed above.

Well, I don't think he could have been any clearer in his views on this issue.

Earlier, we had some discussion by the Senator from Georgia and also my colleague from Wyoming about the National Mediation Board and how two people got on the Mediation Board and immediately overturned 75 years of law.

What you never heard was that the National Mediation Board acted within their rights. No one is saying they did something to violate a law. They acted within the purview of the authority they have. That is not the same case with the NLRB. They do not have this authority. Second, I think it is important, since people listened to this about the National Mediation Board, to clear up one thing. Here is what they did. For 75 years they have said basically in these types of elections, if someone doesn't vote it is considered a ``no'' vote. Imagine that. If you don't vote it is a ``no'' vote. Now they say that you only have to have 51 percent of those voting to have an affirmative vote. Who is going to dispute that? That is what we do in bond elections in this country, that is what we do in referendums, school board elections, and even elections for the Senate.

Think about this. What if you said if you don't vote that is a ``no'' vote. Nowhere else in this country do we say that. If you don't vote, it should not be counted yes and it should not be counted no. The National Mediation Board simply applied the general rule of elections we follow in this country.

Mr. Becker has also received criticism based on his academic writings. Opponents of his nomination have suggested that he supports radical changes in the law that would require workers to join unions against their will, or take away the free speech rights of employers. These wild assertions have no basis in reality, and Mr. Becker has gone to great pains to rebut these mischaracterizations of his academic views.

For example on the issue of mandatory unionism, Mr. Becker has explained in response to a question from Senator Burr that: ``The Act vests in employees the right to self-organization and to form, join, or assist labor organizations and the right to refrain from doing any and all of such activities with the limited exception provided in section 8(a)(3) as modified by section 14(b). If I am confirmed, I will faithfully apply those provisions of the law.'' And again, in response to a question from Senator Roberts, he stated without reservation that: ``I believe workers should have a choice of whether or not to join a union.''

Similarly, in discussing allegations that he supports eliminating employer free speech rights, Mr. Becker has responded: ``It's clear that employers have a legitimate interest, and have a right which is indisputable to express their views on the question of whether their employees should unionize. So nothing in . . . my writing should be construed to suggest that in any way I think that employers don't have a right to clearly express their views on the question of unionization.'' That was in response to a question by Senator Isakson.

I fail to see why these direct and unequivocal responses do not alleviate my colleagues' concerns. I don't know what more his critics are looking for.

Evidently they are more interested in looking at what other people have to say about him than what Mr. Becker says himself.

Finally, some of my colleagues seem to have problems----

Yes.

I say to my friend, I thought we had 45 minutes on our side for the nomination of Mr. Becker.

I am using that time.

I believed, under the information that I had, 45 minutes out of 90 minutes that was evenly split on Mr. Becker. I have been waiting for a long time to speak on Mr. Becker. I see no reason why we couldn't ask for consent to move the vote back a little bit if people want to. I wouldn't object to that.

Madam President, I do not want to keep anyone from speaking. I was under a misimpression. I did not know I did not have my 45 minutes. I apologize. This was not part of my information. I will try to wrap up as rapidly as I can. But I think this is important.

Obviously, Mr. Greenaway seems to have a lot of support. There is no contention about him but there certainly is about Mr. Becker and I want to set the record straight about Mr. Becker.

My colleagues seem to have a problem with Mr. Becker simply because he is a union lawyer and a darned good one. But that should not be a cause for concern. Most labor lawyers devote their time either to labor or representing management. Indeed, since the Board's inception, 23 management attorneys or consultants have served on the Board compared to only 3 who came from a background of representing unions--23 to 3. Now we have someone come from a background of representing unions and now they do not want him on the Board.

Again, these people all came from different backgrounds. I am sure Mr. Becker will approach this with an open mind and impartiality. No one has suggested there is an ethical problem with Mr. Becker's previous employment. He has clearly and unequivocally stated that he will recuse himself from matters that may come before the Board concerning his former employers, the Service Employees International Union and the AFL-CIO, for a period of 2 years. He answered 440 written questions. After months of delay, it is time to move on, not only because Mr. Becker is so abundantly qualified but also because the NLRB has important work to do. We owe it to hard-working Americans to act quickly on these nominations. I hope all my colleagues will join me in supporting Mr. Becker's nomination so we can complete this process and let him start his important work.

I yield the floor.

I apologize to my good friend from Vermont but as he can tell, I needed to get the record straight on Mr. Becker.

Mr. President, I ask unanimous consent that Jeff Barham, a detailee in the Senate HELP Committee, be granted the privilege of the floor for the duration of the nomination of Craig Becker.

Madam President, I have listened again to my friend, and he is my friend. We worked together on a lot of issues, and we will continue to work together on issues. I have listened to Senator Enzi's comments, and I was thinking, is there anything new here? We have heard all this before, on and on and again. No matter how many times you repeat it, it just doesn't seem to hold much water.

I grant Ms. Smith made two mistakes in her testimony, two mistakes when she appeared before the committee--which she corrected. One of those had to do with the origins of the program. When she was asked about this, she thought at that time that the program really had kind of originated among her staff. What she found out was that some of her staff had been talking to outside groups about this. The idea seemed to come from just a meeting of different people, but both within her agency and outside, so Ms. Smith corrected that. That is hardly a cause for her not assuming this position. Again, why would she want to mislead the committee on that when there was nothing wrong with it? So the idea came from an outside group--so what? It doesn't make any difference. She was just trying to answer honestly where she thought the idea had originated within her agency. So, again, she corrected that, as we let people do.

The second one had to do with the expansion of the program. I read the testimony, I read the record more than once on that. She has answered that in writing back. It was a question by Senator Burr about whether she had plans for expansion, something like that. She said no to that.

What she meant to say--and when she reread it, she answered in writing--she had not authorized an expansion of the program. Yes, she had discussions with her staff and maybe others about, if the pilot program actually worked and was successful, yes, they would plan to expand it. But they had to get the pilot program through first to see what went wrong, what went right, does it need to be changed, does it need to be modified before there can be an expansion. So, again, she corrected the record on that, saying she had not authorized an expansion of the program at that point.

Again, there were two minor mistakes corrected in writing. That is hardly a cause for denying her this position. As I pointed out yesterday, we correct the Record all the time around here when we speak on the Senate floor because maybe I made a mistake in what I really wanted to say, I didn't say it correctly. I probably should not say this, but sometimes reporters don't kind of get the nuance of what we wanted to say, perhaps, and how we wanted say it. So we correct the Record all the time. It is done all the time around here between what you say and what you read in the Congressional Record because human beings make mistakes. So, again, hardly a cause for denying Patricia Smith this position.

Again, I daresay I have not heard anyone question her qualifications. She is eminently well qualified for this position. As I said the day before yesterday--and I put in the Record a number of letters from business groups in New York supporting her, saying she was fair and judicious, worked with them. She has run the department of labor in New York--I think an $11 billion agency with about 4,000 employees. No one has ever questioned her ability to run that agency.

We have heard: Well, if she didn't know what was going on with this little $4,000 pilot project, then she can't run an agency. You know, again, we always delegate to staff--especially if you have large stuff and you are running big things--about little things like that that they can do.

Again, I heard my friend say she knew about this program. Of course she knew about the program, she knew about the pilot program. Frankly, I think she was kind of excited about the program to see whether it would work and if it was a legitimate, good program that would work to help inform people of their rights under the law. Surely, my friend is not saying that is something that should not be done--help people, inform them of their rights, or to report violations of the law. Surely, no one is saying no one, if they see a violation of the law, should

not report it. But that is what this Wage Watch was supposed to do.

She made it clear in her statement of January 2009--in her statement, not staff's statement but her statement and her e-mail to her subordinates--that this was not an investigative arm, they were not replacing staff, this was merely an informational group, and also to see if there were any violations of law, to report it. Surely, no one can say that is not a legitimate function of volunteer groups.

Again, we are here to vote on final passage of the nomination of Patricia Smith for Solicitor of the Department of Labor. I am glad we can finally bring this to a close. It has gone on too long. We have been considering it on the floor since Monday, postcloture. In all that time, there has been very little by way of debate. We have only had two Republican Members come to this floor to speak and explain why they oppose this critical nomination.

There is nothing new about Patricia Smith that we have learned since Monday. Indeed, nothing has emerged that we didn't know when we voted her out of committee back in September. We know she is well qualified, extremely. Everyone acknowledges this. She has an impressive record of accomplishments at the New York Department of Labor. She is strongly supported by local leaders and even the local business community. Again, this, too, is undisputed. And as I said, she corrected in writing these two errors she made when she testified before the HELP Committee last year.

In the 4 months that have passed since the Republicans first threatened to filibuster her nomination, we have not learned one new piece of information that can change anyone's mind about whether she is a qualified candidate to serve as Solicitor of Labor. All the last 4 months of delay has achieved is to keep her out her job and hamper the Department of Labor's ability to perform its important function.

That is not what this process is supposed to be about. This government cannot function if we, as Senators entrusted with the important power to advise and consent on Presidential nominations, abuse that power--I repeat, abuse that power by using extraordinary procedural tactics to block the nominations of qualified people. The filibuster, as I understand it, was supposed to be reserved for extreme cases when there are critical public policy issues at stake, where the country may be divided on them. It is not supposed to be a routine delay tactic for every nominee the minority party disagrees with or that one person--not the entire group but one person--disagrees with.

The American people are getting fed up, and they should be. We cannot even get routine business conducted around here anymore. American families are sitting around the kitchen table worried about a lot of things--about their health care, about their kids' education, and more than anything, about their jobs--if they don't have one, about when they are going to get one, and if they have one, can they keep it. How they are going to pay their bills if they become unemployed? We can't help them, we can't help the families of America by spending day after day of time here in quorum calls, with the lights on, the electricity running, people here, and we do nothing, we just sit here because the Republican side has engaged in a filibuster. Playing these procedural games does not advance our country one bit.

We can, however, help our families by attacking the jobs problem with every weapon in our arsenal, and that includes a fully staffed and strong Department of Labor. While I am sorry it has come to this, this long filibuster and all these days wasted, I am glad this process has come to an end. It is time to vote so we can let Patricia Smith get to work, so we can get back to the business here of helping our families across America.

I yield the floor.

Let me put one thing to rest here. No one on Wage Watch was authorized to enter any business unless the business owner agreed to that. The only exception is if the public was allowed. Sure, they could go into a department store or a restaurant or someplace such as that where the general public went. But they could not go into any business without the business owner's permission, and they could do nothing other than what the general public can do right now.

We need more people doing what these volunteers were doing and making sure that people's rights are respected.

I ask for the yeas and nays.

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

Mr. President, I ask the Parliamentarian, what is the business before the Senate at this time?

Mr. President, for the benefit of those who are tuned in on C-SPAN in their offices, what we are now in is what is called postcloture on the nomination of Patricia Smith to serve as Solicitor of Labor. This is a nominee who came before our committee almost a year ago, in April. It has been held up and held up.

Yesterday, the Senate voted cloture because it was being filibustered--yet another filibuster by our Republican friends. So we had a vote last night, and cloture was invoked by 60 votes. Now we are in the period of what they call postcloture, 30 hours of postcloture. We will have a final vote up or down for Patricia Smith to be Solicitor of Labor. If she got 60 votes last night on cloture, it is obvious she certainly has more than 51 votes to take the position as Solicitor of Labor.

That is where we are. We are in this 30 hours. Again, it raises the question in my mind, why are we chewing up 30 hours? We know the votes are there. We voted on cloture last night. Yet our colleagues on the Republican side are insisting that we just chew up time. For what purpose? We have the lights going, the heat is on, all our staffs are here, and no one else is on the floor. So why do we run this 30 hours and waste taxpayers' money and waste all this time when we know what the vote is going to be?

We have been through all this. Patricia Smith has had her hearings. I thought we had a pretty good debate yesterday. Republicans laid out their side, we laid out our side, we had the vote, and now it is time to move ahead, have the final vote, and get this person to work down at the Department of Labor.

Again, I say for the benefit of those watching, here we are in another one of these filibusters. We stopped the filibuster, and now we are in this 30 hours afterward which we do not really need. Everything to say about Patricia Smith has basically been said. The record has been made. She appeared before the committee. She answered questions. The record is there. There is nothing you can do. It is going to come out. Everything is there, and all of our Senators know that.

But the rules are the rules, and the Republicans have the right to invoke the rules. Evidently, they have invoked the rule to chew up 30 hours. It is a shame we have to waste our time like this. As long as we are chewing up the time and Republicans are insisting that we keep the lights on and the heat on and keep everybody around for 30 hours, I would like to make some more remarks on behalf of Patricia Smith and where we find ourselves.

As I said, I am very grateful to our colleagues for the vote last night to end debate and invoke cloture. We have devoted very ample time to our deliberations on Patricia Smith. It is now time to act.

There is no question, when you look at the record and the facts, that Patricia Smith is abundantly qualified to serve as Solicitor of Labor. She has an impressive background in labor law and a demonstrated record of achievement in the State of New York. More important, she clearly has a deep and passionate commitment to help American workers. I can think of no better qualification for this critical position.

There is also no question that Commissioner Smith--and I use the words ``Commissioner Smith'' because she is presently the commissioner of labor for the State of New York--there is no question that Commissioner Smith has undergone a very thorough vetting process. As I said, the nomination has been before us since last April. She has testified in open hearing. She has answered more than 50 written questions. She has met with any Senator who wanted to meet her. Her nomination was debated extensively in our committee, frankly. It has now been debated on the Senate floor--a step that in previous Congresses was often reserved for judges who get lifetime appointments or for Cabinet-level nominees, not for someone who is going to be Solicitor in the Department of Labor. It is time to bring the discussion to an end and let Commissioner Smith get to the Department of Labor and start doing her job.

I listened very carefully to the arguments raised by my Republican colleagues yesterday against Commissioner Smith's nomination. While I think we could spend quite a while debating about which e-mails she was

copied, which staffers should have kept her in the loop and all that, I can't help but conclude that this debate fundamentally comes down to a disagreement about whether this Wage Watch program that was instituted by the New York Department of Labor as a pilot program was a good idea. It kind of comes down to that. I will have more to say about what I think it comes down to in a minute.

My colleagues on the other side of the aisle--and I read the record-- have used some pretty scary words to describe this pilot program. They called it entrapment, vigilantism. They say it ``deputizes private activist groups to intrude on small business.'' They have said the Wage Watch volunteers are like the private citizens, the Minute Men, who try to patrol our borders with guns.

If there was even one scintilla of evidence that is what this program is about, I would be alarmed, too. But it is not.

Again, let's look at the documents and get the facts. The agreement that participating groups signed to join this Wage Watch is a good description of what Wage Watch volunteers did. Here is the agreement that groups who agreed to get involved in that agreed to:

Conduct outreach to the public about labor laws (handing

out brochures, etc.) in formal and informal settings (e.g.,

at organized festivals, neighborhood or group meetings, other

organized events . . . bus and subway stops, libraries,

supermarkets, or similar locations);

Provide seminars or informational sessions to the public;

Set up and staff tables at events for the purpose of

providing information to the public and answering questions

regarding the labor law;

Obtain information regarding potential labor law violations

from parties familiar with the violations;

Fill out basic complaint forms regarding potential labor

law violations and pass them on to the Department.

Nothing illegal. Nothing unethical. Informational. Certainly, don't we want people--especially those at the lowest end of the economic ladder--this is what we are talking about. These are people working at minimum wage jobs, barely maybe above minimum wage. They are the workforce you go by when you go into the door of a restaurant or they are back in the kitchen or they are perhaps in the retail industry doing other things. They are the janitors you don't see at night cleaning up business places--a number of people like that. Again, they are at minimum wage and probably don't belong to any organized labor union. Many of them have limited language skills, and they are trying to get by and raise their families. So we are trying to get information to them about what their rights are.

Do my Republican colleagues believe it is wrong to inform people about what their rights are under the law? Surely they don't want to say if you find violations of law regarding safety or health or wages of people who are being skimmed on minimum wage and aren't being paid minimum wage and are working overtime and are not being paid overtime-- are they saying nobody should report that and that we should keep hands off? Surely, that is not what my Republican colleagues are saying, is it?

Well, again, these are not radical actions we are talking about. They are educational and outreach activities designed to empower workers and protect their rights and give them information. Everything on this chart can be done by any private citizen any day of the week.

While staff on the Department of Labor, in their e-mails that we saw, may have called this an ``enforcers'' program in the early days, in January and February when they were brainstorming about the project that is really not what it was. Wage Watch participants were not conducting investigations. They had no enforcement authority. They couldn't demand to see a business's books or access private property. Commissioner Smith made this very clear in her own descriptions of the program.

There has been a lot of talk about e-mails and such. I saw some of the charts put up by my friend from Wyoming yesterday. They were all from people other than Commissioner Smith. You can see what Commissioner Smith said on January 15, 2009--not what somebody else said:

The Wage Watch groups will conduct activities which promote

labor law compliance . . . including handing out leaflets

about labor laws to workers at community events or

supermarkets; giving know-your-rights training to workers;

talking to workers at restaurants and other businesses open

to the public; and talking with employers about labor law

compliance.

This is important:

Please note that the groups and individuals who participate

as Wage Watchers will not be agents, employees, or official

representatives of the Labor Department. They are not

replacing staff and they are not going to be conducting

investigations of any kind. Their role is limited to doing

outreach and community education, and to reporting any

violations they encounter to the Division.

That is from Commissioner Smith. I didn't see anybody on the other side put up that chart yesterday. They had charts from other people but not from Commissioner Smith.

Again, when it comes down to it, all these Wage Watch people could do was talk to workers who were willing to chat with them and hand out fliers. Is this vigilantism running amok? Hardly. It is simply volunteers who are willing to take time out of their day because they care about low-wage workers and they want to help them. I can't imagine how this harmless, generous form of outreach could possibly be objectionable.

Unfortunately, my colleagues on the Republican side have used this program to try to tarnish Commissioner Smith's impressive and impeccable reputation. They claim she's antibusiness. They claim she is trying to close companies and put workers out of a job.

These charges are totally unfounded. There is no basis for those charges at all--not a scintilla of evidence about those charges. In fact, they are exactly the opposite of what her record at the New York Department of Labor shows. Patricia Smith has dedicated the last several years of her life to helping workers find jobs and keep jobs. Since taking over as commissioner, Ms. Smith has spearheaded a $4.25 million initiative to prepare New Yorkers for jobs in emerging and green industries; revamped the State's unemployment insurance training programs to allow more workers to get approved for training dollars at the same time they are collecting unemployment benefits; promoted the State's Shared Work Program, which gives businesses an alternative to layoffs as they face a temporary decline in business, increased the number of businesses participating in the program from 293 in 2007 to 1,620 in 2009.

These are just a few of her many impressive accomplishments in the area of job training and workforce development.

Where Commissioner Smith really gained her reputation as one of the finest labor lawyers in the country is in the area of enforcement. She is committed to protecting workers' rights.

In 2008, the New York Department of Labor collected $24.6 million in back wages for 17,000 workers across the State. This was a 37-percent increase in collections from previous years, and it significantly increased the compliance rate among employers.

Now, would someone on the other side say we should have allowed these people to be cheated out of $24.6 million in back wages and sort of washed our hands of it and moved on? That is not only unfair to the workers, it is unfair to the thousands of businesses in the State of New York that comply with the law, that pay fair wages, that pay overtime pay. There is more of them than the others. The vast majority of businesses comply with the law. There are always a few trying to skim it, cutting corners, figuring out how they will never be caught. It usually affects the lowest wage workers.

It is unfair to the legitimate businesses in New York. That is why so many business groups support Patricia Smith. We have letters of recommendation from business groups in New York talking about how she listens and works with them, how fair she is in enforcing the laws. So if someone over there says she should not be doing that, should not be that aggressive in going after bad wages, I don't think legitimate businesses would say that is unfair. They would say: Yes, go after the people giving us a bad name and, frankly, unfairly competing against us.

Those are impressive achievements. Maybe that is the reason some of our colleagues are afraid of her being Solicitor. There is no question she will be a

Solicitor who will enforce the law. She will do it fairly and reasonably but also make sure there are real penalties for taking money out of workers' pockets or putting workers' lives at risk. I guess that is what it comes down to: Do we want a Solicitor who is willing to go the extra mile and try new approaches and new ideas if it will help protect workers' rights? I believe we do. That is what we need in these tough economic times.

I have looked at this Wage Watch pilot program. Quite frankly, I don't know what the results are yet. There is a pilot program now being assessed. Quite frankly, I would be an energetic supporter of that kind of an approach, where people in the community who speak the same language, who live in the same neighborhood, who go to the same churches, whose families interconnect but who are on the lowest rung of the economic ladder--I would be in favor of giving them information about what their rights are when they go to work every day and about what it means to work overtime and how much they should be paid for overtime, what the minimum wage is and how they should be paid the minimum wage, and, yes, also what safety is.

Are they working around hazardous materials and not being adequately protected? Is their health being endangered? They ought to know those things. So many people don't.

Again, as I said yesterday, we are not talking about people working on Wall Street on hedge funds or CPAs, accountants, lawyers, and investment bankers. We are not talking about Senators and our staffs and people who have all this knowledge. We are talking about people who don't understand what their rights are. They are happy to be here. They are happy to have a minimum wage job. They are happy to be able to keep their families together and hope and dream that their kids will have a better life than they have had.

So, again, this Wage Watch, to me--I hope that it is proved out that it was successful. Quite frankly, I think this is something we should emulate. My colleagues on the Republican side seem to want to denigrate it and say this is vigilantism and like Minutemen. Someone said in the Neighborhood Watch program, people cannot go into people's homes. None of these people who were on the Wage Watch could go into a private business unless they were allowed to. They couldn't ask for the books or see the ledgers or anything like that. They could go into a store that was open to the public--a Walmart or supermarket or places where the general public can go. They could not go into a private business where people were working, if the general public wasn't allowed to go in there.

Again, all the comparisons to vigilantism and what I have heard from the other side--these are words that are intended to put fear into people. Let's be frank about it. Fear. It is to make them afraid. Well, if they can just show an example of that, maybe we can look at it. There are no examples of this anywhere.

My friends on the other side also raised questions about certain misrepresentations that Commissioner Smith gave to the committee. I would never minimize that. When people testify before committees, they should do so honestly and openly. I also know human beings make mistakes. I can't tell you how many times I have been at a committee hearing when I heard a question and the person being requested heard it differently than I heard it. We don't always hear things the same. So what you do is you are able to correct the record and, guess what. We do that every day here, don't we?

I am standing here speaking, and the reporter is taking it down-- doing a great job, I am sure of that. But guess what. Sometimes mistakes are made. I may say a word, and the reporter might say: That guy Harkin speaks with that Iowa lingo, and I didn't understand that Midwest lingo. And they may put it down wrong. That is why we have a record. Our staffs go back to the record, or I go to the record, and we correct the record. We all do that every day around here. It is simply because people are human and they make mistakes.

When we have a hearing in front of a committee and somebody asks a question and the witness answers it and we find out the answer wasn't correct, we can go back to the witness and say: What is this all about? Here was a question and here was your answer, but we have different information.

The witness will be able to look at that and correct the record, and that is what Patricia Smith did. Obviously, she heard the question one way, the questioner thought he had questioned her in a different way. But she corrected the record.

Again, keep in mind, no one on this side of the aisle is alleging she did this to cover up an illegal activity or to cover up something nefarious, to cover up something that was unethical. No. There is no allegation about that on that side because it is simply not true. She made a simple mistake. She corrected it.

There were two times when that happened. One was simply because, at that point in time, she did not have all the information she should have had. When she went back to her staff in New York, she found a different thing and corrected the record at that point.

As I said, we do that all the time around here and we do not think anything about it. Republicans do it. Democrats do it. We correct the record all the time simply because human beings are human beings and people make mistakes.

There has been a lot made of whether this idea came from within her staff or came from the outside. Well, that was one of the debates about this. She had testified in the hearing that this was something that came up from within her department. Well, unbeknownst to her, some of her staff lower down had talked to outside groups and discussed this Wage Watch program and then presented it to Commissioner Smith.

Well, my response on that is, what is the big deal? So what? So what if some outside groups were involved in this? Again, was it illegal? Was it unethical? Was it underhanded? No. Perfectly legal. I daresay, all of us Senators meet with outside groups all the time. They come to see us, talk about programs, talk about how we should be doing things. That is one of our functions, to listen to outside people to get better ideas.

This would be a sorry place if all we did was talk to one another. It is a good thing we are talking to people on the outside. So whether the program was suggested by one of her staff or by an outside group, I say: So what? She happened to think it came from within her department and later found out her department people had been talking to someone on the outside. OK. She corrected the record. So what is the big deal?

Then there was a question about expanding the program. Well, I would say honestly, did Commissioner Smith want to expand the program? Sure, as long as it proved to be successful. That is what a pilot program is for. Obviously, she thought it was a good idea to put the pilot program in. The whole point of a pilot project is to expand it, if it is successful. Again, it had to do with conversations about a question about had she had conversations about expanding the program.

There was another little problem. What she thought they were talking about was, did she have conversations about expanding, authorizing and expanding the program and she had not authorized any expansions of the program whatsoever. But, of course, she talked about: Well, if it is successful, sure, I would like to expand it.

In fact, I would point out, to this day, she has never authorized an expansion of the program. Why? Because they do not have all the data, and they have not thoroughly ever evaluated the success of the pilot program. I think that is what a responsible leader does.

Lastly, there is some allegation that the Wage Watch program was used by unions as an organizing tool. Well, again, is anyone on this side alleging that is illegal, unethical, nefarious in some way or underhanded? I do not hear those allegations because they are not so.

Quite frankly, I do not think there would be anything wrong with that. But Commissioner Smith took all appropriate steps to make sure unions separated their organizing activities from their volunteer work with Wage Watch.

As far as I know, and I have seen no evidence to the contrary, her instructions were followed. They were separated. I have seen no evidence to the contrary. So I hope our debate and what I have been able to say and put in the record will put to rest any concerns colleagues may have about Mrs. Smith's honesty and her integrity.

Her honesty and her integrity are unassailable. Is she infallible? Never makes a mistake? Well, I do not know of any living human being who can say that. But does she recognize and correct it? Absolutely--as we all do. Well, again, honesty and integrity, unassailable in her performance as commissioner of labor in the State of New York.

Again, I will point out, this pilot project was a $6,000 pilot project. She was in charge of running an agency with an $11 billion, that is spelled with a B, $11 billion budget; 4,000 employees across the State of New York. This was a $6,000 pilot project. We have to kind of keep that in perspective as to how high it was on her viewing screen.

Well, quite frankly, I think this whole delay from last April would have been avoided if more of my colleagues on the other side had taken the time to sit down with Patricia Smith, talk with her, and hear her side of the story.

I also think it would have been avoided if you read all the letters of support from business groups in New York, from the attorneys, the district attorneys in New York representing all different political parties and ideologies. All these attorneys are saying she does a great job--if they had just looked at her record.

Well, I did. I looked at her record. I have spoken with her. I have read the transcripts. I have looked at the background of all this. I can say, with confidence, never did she have any intention of misleading the committee. Why? This was a perfectly legal, above-the- board project. Why would you want to mislead anybody about it? She had every intention of dedicating her life to be the best and most effective Solicitor of Labor she can possibly be.

Our Nation is very fortunate to have public servants of this caliber. I mean, you look at this. I have no doubt Patricia Smith, with her legal skills, managerial skills in the private sector, can be making a lot of money. I have no doubt. But she has chosen a different career path--to be a public servant, a public servant, dedicating her life to helping people for whom there is not a lot of government help. No one is sticking up for them, people at the bottom end of the ladder.

To me, this is one of the highest callings I think anyone can do in our society, is to be that kind of a public servant. So I think our Nation is very fortunate to have this kind of a person in Patricia Smith for this critical position. I look forward to her swift confirmation.

I would hope we would not have to drag out 30 hours, but it seems the Republicans are intent on wasting time. There is nothing happening here. Anyone can see that. Anybody watching on C-SPAN can see nothing is happening here and we just waste time. We can have the vote now. We could have the vote in 20 minutes. Nothing would change. But we have the 30 hours. I guess we have to waste it. But I wanted to take this time, again, to set the record straight one more time on Patricia Smith, her integrity, her honesty, her exemplary background, and the fact that she is going to be an outstanding Solicitor for the Department of Labor.

I suggest the absence of a quorum.

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

Well, Mr. President, here we are. It is about 5 minutes to 6 p.m. We have been here all day today postcloture on Patricia Smith. Again, to recap why we are here--I am not certain why we are here but to recap the fact that we are here--Patricia Smith was reported out of our committee last year, was held up to be the Solicitor for the Department of Labor, and finally we had to file cloture because she was being filibustered. That cloture motion ripened last night and we had a cloture vote last night. Sixty people voted to end debate and bring her up for a vote. Well, under the rules of the Senate, there is then 30 hours of debate. So we have been here. It has been nearly 30 hours.

We have been here all day today, and, as I understand, only one person showed up today to talk against her nomination. That was my colleague and good friend, Senator Enzi from Wyoming, the ranking member of our committee. I looked at the transcript of what he said, and basically it was just about what was said yesterday. Nothing new came out today. I know Mr. Enzi opposes her nomination. That is no secret. It is his right to do that. But here we are using 30 hours and only one person today has come over to speak against her.

So, again, I just say this to inform the public that here we are, the lights are on, the electricity is running, the bills are going up, and we are here for

no good reason whatsoever. We could have voted on the nominee last night. We could have voted this morning and moved on to other business. There is other business before the Senate that needs to be attended to. But the Republicans have decided under their leadership to slow everything down.

I have heard it said by the leadership on the Republican side that the public wants them to stop bad legislation. That is why they use the filibuster. Well, this is not legislation. This is a person to be the Solicitor for the Department of Labor, and obviously she has more than enough votes to get confirmed. She is eminently well qualified. She has a broad swath of support. Again, they can filibuster, but we had the vote on that last night to end the filibuster. But, again, it is their right under the rules--I am not denying that--it is their right to drag it out for 30 more hours. But to what end? To what purpose? Has more information come out about Ms. Smith that might change somebody's mind on how they are going to vote, whether she should take this position? No, nothing more has come out, no new information. So here we are wasting time, slowing everything down. The public has to know this. People out there are frustrated because we are not getting anything done. This is a perfect example of how the Senate has become dysfunctional--dysfunctional. Here we are for 30 hours doing absolutely nothing, to no end whatsoever.

Usually, as to the 30 hours after a cloture vote has been had, people will say: Well, there is new information. We have to bring out something new. We can maybe change some votes.

Nothing new has come out and nothing new will come out. She has been thoroughly vetted since last April, almost a year. She has responded to every written question. She has responded to any personal request to meet with her. So everything is out there in the open. Yet the Republicans insist on dragging it out for 30 hours. Again, the public has a right to ask why. Again, to what end? To what end are we dragging out the 30 hours? Well, I guess the end is to try to keep us from doing anything else.

As President Obama said in his State of the Union Address, just saying no is not leadership. Just saying no is not leadership. That is all we are hearing from the Republican side--no to everything. Well, it is all right if they want to say no, but at least let's vote. Let's vote.

It is very frustrating--very frustrating. I know they can use the rules, but you can also abuse the rules. The filibuster is being abused. It used to be used only for weighty measures in which there was a true disagreement and for which, perhaps, some could be swayed one way or the other through the debate and arguments that came forward on the floor--not for nominations. So everything is slowed down.

I also wish to say a few more words on behalf of Patricia Smith. Again, we have not heard anything new during these 30 hours. There was one thing my colleague and friend Senator Enzi said today that I do want to respond to. Again, it was nothing new, but it was just said again today about this Wage Watch that was instituted in New York as a pilot program, about how they were going to investigate and go into businesses and all that kind of stuff. Again, I do not want to repeat what somebody lower down has said. I want to know what Ms. Smith herself said about it.

Here, as shown on this chart, is an e-mail from Commissioner Smith-- right now from her--dated January 15, 2009, when they were starting up this program. Here is her e-mail--not some underling's, not some staff person's, but Ms. Smith's, who is the subject of the nomination--

Wage Watch groups will be conducting activities which

promote labor law compliance . . . including handing out

leaflets about labor laws to workers at community events or

supermarkets; giving know-your-rights training to workers;

talking to workers at restaurants and other businesses open

to the public; and talking with employers about labor law

compliance.

Please note that the groups and individuals who participate

as Wage Watchers will not be agency employees or official

representatives of the Labor Department. They are not

replacing staff and they are not going to be conducting

investigations of any kind. Their role is limited to doing

outreach and community education, and to reporting any

violations they encounter to the division.

So that is what the Wage Watch was set up to be. But, again, we keep hearing all of these accusations about vigilantes and all that kind of stuff. They are not empowered to enter any place of business unless the employer lets them or unless it is a place of business where the general public can go such as a restaurant, a Wal-Mart, whatever-- stores. Wherever the public can go, they can go, but they cannot enter a business that is not generally accessible to the public. I wanted to set the record straight one more time.

Again, if Ms. Smith were so bad, I would daresay you couldn't find a business group that would support her. I have here a whole bunch of letters from business groups in the State of New York where she is presently the labor commissioner extolling her virtues and her ability to work with the business community. Here is the Business Council of New York State. I won't read it all, but it says:

As the president and CEO of a statewide business trade

organization, I believe Ms. Smith is superbly qualified to

assume the responsibilities of Solicitor General and urge the

Committee's favorable disposition of her nomination.

He goes on to say:

Ms. Smith's long tenure as an Assistant Attorney General of

New York leading its Labor Bureau showed her to be thorough,

fair, and judicious in the use of the tools at her disposal

to ensure compliance with New York's labor law.

Then he goes on further:

What is important to note is that under Ms. Smith's

leadership, she made an extra effort to communicate directly

with the business community, to elicit feedback, to provide

us with a heads-up, and to balance our comments as she framed

policy and practice within her Department. Her outreach to us

and communication with us was open, honest, candid, and

frequent.

I ask unanimous consent that the letter from Kenneth Adams, president and CEO of the Business Council of New York, be printed in the Record at this point.

Mr. President, here is a letter from the Partnership for New York City. Again, I won't read it all, but it says:

As an advocate for businesses and economic development in

New York for more than twenty-five years, I have had the

opportunity to interact with many public officials. Ms. Smith

stands out as one of the most dedicated and effective of our

state commissioners and I consider her to be an excellent

choice for the post that the President has selected her for.

That is from the president and CEO of the Partnership for New York City.

I ask unanimous consent that it be printed in the Record.

Here is a letter from the Manufacturers Association of Central New York:

The Department of Labor under the leadership of

Commissioner Smith has been fully supportive in our mission

to enhance and improve our sector's workforce. Commissioner

Smith and her team have been informative, helpful, and

involved every step of the way, ensuring our membership has

the tools, education and skills they need in order to

succeed.

It is signed by Randy Wolken, president of the Manufacturers Association of New York.

I ask unanimous consent that this letter be included in the Record.

Here is a letter from the Plattsburgh North Country Chamber of Commerce. They said:

Since she assumed leadership of the New York State Labor

Department in 2007, we have enjoyed not only attention and

engagement from Patricia Smith but a genuine working

partnership.

It goes on to say:

I could cite additional examples, but the bottom line is

this. Patricia Smith has been an outstanding partner as

Commissioner of the New York State Labor Dept., and will be

an outstanding solicitor for the U.S. Labor Department. We

strongly encourage her earliest possible confirmation by the

Senate.

This letter is signed by Garry F. Douglas, president and CEO of the Plattsburgh North Country Chamber of Commerce. I ask unanimous consent that it be printed in the Record.

Here is a letter from the Long Island Forum for Technology. It says:

With a strong record of achievement and leadership,

Patricia Smith has been an outstanding Commissioner of the

NYS Department of Labor. With her vision and her energy, we

believe she will make an outstanding addition to the U.S.

Department of Labor's leadership team and we urge her

earliest confirmation.

It is signed by the president of the Long Island Forum for Technology.

I ask unanimous consent that it be printed in the Record.

Lastly, here is one from the U.S. Women's Chamber of Commerce:

After learning of Ms. Smith's qualifications, expertise and

the law she has worked to uphold, I can clearly see that she

is someone who would work with conviction to enforce the laws

of the United States of America. Additionally, I am impressed

with her out-of-the-box thinking in creating programs that

will keep jobs. We especially need these attributes in this

time of economic challenge.

Please accept Ms. Patricia Smith's nomination, and confirm

Ms. Smith as Solicitor General of the United States

Department of Labor.

It is signed by Margot Dorfman, CEO of the U.S. Women's Chamber of Commerce.

I ask unanimous consent that it be printed in the Record.

Mr. President, it is clear that Patricia Smith is eminently well qualified. She has been thoroughly vetted. We need a Solicitor at the Department of Labor. This nomination has been hanging here since last April. It is time to move on. But, again, the Republicans are exercising their right--although I think it is an abuse of that right--to drag it out for 30 more hours, to keep the Senate in session, for no purpose whatsoever other than to slow things down in this Chamber. To me, that is not a good enough excuse, when only one person came here today to speak against her, and that person spoke against her yesterday. I read the transcript. Nothing new; same stuff.

I would hope we could collapse this timeframe and vote on it, but evidently the Republicans are intent on stretching this out to the maximum 30 hours. As I said, it may be their right, but I think it is an abuse of that right.

Mr. President, I yield the floor and note the absence of a quorum.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on February 2, 2010, at 9 a.m.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on February 2, 2010, at 2:30 p.m., to conduct a hearing entitled ``Prohibiting Certain High-Risk Investment Activities by Banks and Bank Holding Companies.''

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on February 2, at 2:30 p.m., in room SD-366 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on February 2, 2010.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on February 2, 2010, at 10 a.m., in room 215 of the Dirksen Senate Office Building, to conduct a hearing entitled ``The President's Fiscal Year 2011 Budget.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on February 2, 2010, at 10:30 a.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on February 2, 2010, at 2:30 p.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on February 2, 2010, at 3:30 p.m.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet, during the session of the Senate, to conduct a hearing entitled ``Hearing on the Nomination of Harold Craig Becker to be a Member of the National Labor Relations Board'' on February 2, 2010. The hearing will commence at 4 p.m. in room 430 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on February 2, 2010, at 10 a.m., to conduct a hearing entitled ``Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections.''

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet, during the session of the Senate on February 2, 2010 at 2:30 p.m.

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

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

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 listened very carefully to the statement made by my friend and ranking member, Senator Enzi. Many of the points raised by the Senator have been gone over before by the committee. These were things we looked into. So I think I would like to respond a little bit, almost point by point, to some of those concerns that were raised in the statement made by Senator Enzi.

But before I do that, I, again, wish to make one thing very clear. We are talking about something--this Wage Watch. Is that what it is called? Wage Watch. We are talking about something that is perfectly legal. Almost, listening to my friend's comments on it, you would think there was some subterfuge going on. This was perfectly open and above board and everything. No one is alleging anything was ever done illegally. No person--none of the Wage Watch people--did anything illegal. In fact, all the things they were engaged in--and I say ``were''; I use the past tense because it was a pilot program and it has now ended and they are now assessing it--but all the things they were engaged in, they can engage in today. Anyone can. I can. You can. Staff can. Anybody can do this. It is not illegal. It is perfectly legal. So let's keep in mind what we are talking about is a perfectly legal, open, transparent pilot project that was started by the New York Department of Labor.

Again, as I indicated earlier with my charts, why were they doing this? Because so many people had been found who were not being paid the minimum wage; they were working overtime and not being paid overtime. A lot of times these low-income workers--many of whom are recent immigrants to this country--do not know what their rights are. They are fearful of losing their job. It is the only thing they have to keep their families together, and if the employer decides to shave a little bit off their overtime, what are they going to do? They have no one to go to.

So that is why I pointed out in my charts how much money and how many times Commissioner Smith had gone after bad actors, bad employers, to get money back for workers, for their families, for their retirement systems they were cheated out of.

As she said to me, the good employers--the good employers--the businesspeople in New York wanted her to do this because the bad actors who were shaving, who were not paying the minimum wage, who were not paying overtime, were taking unfair advantage of the honest employers that were meeting their legal obligations. That is why it is no surprise to me we have all these letters of support for Ms. Smith from the business community. I already mentioned the Business Council of New York, the Manufacturers Association of Central New York, the entire New York congressional delegation--all these writing letters in support of her, talking about how fair she is and how she would listen and work things out.

When she started--she did not start it--but when the department started this Wage Watch, that was the intent of it. It was information. My friend says they started out from the beginning for enforcement. Well, sure, what do you think? Do you think someone is going to find out someone is not paying someone the minimum wage, and they are not going to tell anybody, they are not going to tell the Department of Labor, they are just going to say: Well, that is just the way it is. Of course, the end result is to enforce the law, to let people know their legal rights so that law can be enforced. Of course, that is the end result of it.

But the implementation of that was an informational program, to get information and guidance out to people, again, who--we are not talking about Members of Congress. We are not talking about our educated staff who have been to the best schools and have all these fancy degrees. We are not talking about accountants. We are not talking about people working on hedge funds in New York or on Wall Street. We are talking about people working in Queens at the minimum wage in the garment industry--janitors, homemakers, others out there who are working in food service who are at the minimum wage or slightly above it. So we are talking about people who do not have all that knowledge base we kind of assume workers would have. I wish to make that point clear before I start to talk about some of the points that were made.

Again, a lot has been made about the plans for expansion and about Senator Burr's question. I looked at Senator Burr's question. I looked at her response. I was there that day. It did not register. But then later on we began to look at this when issues were raised by my Republican colleagues.

Well, quite frankly, the e-mails that were shown by my colleague were not e-mails from Patricia Smith. They were e-mails from Terri Gerstein, not Patricia Smith. Quite frankly, to expand it to include occupational safety and health training, there was an e-mail to Terri Gerstein from Joel Shufro. Well, much was made of this. Again, I will respond in two ways. Much was made of expanding it to occupational safety and health issues training. My response is, yes; so? Shouldn't people also know not only what their rights are in terms of what their wages are, but shouldn't they also have the right to know whether something is unsafe, whether their health is being endangered? It would seem to me this also has to get out there, to know what their rights are to protect their health and their safety. I don't have any problem with that, that they should have that kind of training also, as well as to be on the lookout for that.

Sure, if they are working in hazardous conditions and with hazardous materials that can affect their lives and their livelihood and their future health, somebody ought to know about it. Someone should know about it.

On the expansion of the program beyond just the wage-and-hour expansion in the State, it looks as though the deputies may have gotten a little ahead of her when they were doing this. Again, keep in mind, I know the buck stops here. I saw that chart. The buck always stops here. We are responsible.

As I pointed out, Ms. Smith was running an agency with an $11 billion budget--$11 billion, 4,000 employees. This was a $6,000 pilot project, hardly the meat and potatoes of what she was doing in her job every day. Plus, she was focusing on one of the worst economic crises New York and this country has faced. So keep that in mind.

Ms. Smith was clear in her response to us about the fact that she had no discussions about a potential expansion with anyone other than generally indicating that:

. . . if it proved successful, my goal would be to expand

it to other areas of New York State. At that time, I had not

authorized my staff to proceed with a statewide expansion of

the program, nor had I discussed with them any steps that

were preliminary to a possible expansion. My first--

And I am reading from her response to our written questions. Ms. Smith says:

My first substantive discussion about the steps needed to

be taken to evaluate any potential expansion of Wage and Hour

Watch occurred in late May 2009 with my Executive Deputy

Commissioner. . . . At that time he informed me that the

Deputy Commissioner for Wage Protection and Immigrant Affairs

had recently discussed with him what to do about the

additional requests to join the program to which we had never

responded. He told me that he had authorized her sometime in

mid May to send out e-mails to groups in New York that had

expressed interest in the program in case we judged the pilot

a success. He had not personally seen the e-mail. Therefore,

within days, I asked to review the text of the e-mail the

Deputy Commissioner for Wage Protection and Immigrant Affairs

was using. I told her that it could give the impression that

a decision to expand the pilot had been made, which it had

not, and made appropriate changes to the text. I directed her

to use my corrected version in all future e-mails.

So, again, rather than saying this has to be expanded, she said let's look at the results and see what the results are, and she took it upon herself to correct those mailings that went out from her office.

The other thing that was said had to do with unions and that she misled the committee. There is a claim in response to a written question that she instructed unions participating in the Wage and Hour Watch Program not to use their status as wage watch groups as a union organizing tool. In fact, the New York Department of Labor tacitly condoned this practice.

Those are the charges that were made.

Well, first of all, again, there is nothing improper or unlawful about unions using their Wage and Hour Watch activities as part of organizing campaigns. There is nothing illegal about that. I would like to have someone show me where that would be illegal. There is nothing illegal about that. However, Ms. Smith, in order to be fair, took all appropriate steps to discourage that activity because business groups had raised concerns about this issue with her. She responded immediately, specifically prohibiting unions from distributing their own organizing literature while they were performing wage and hourly watch activities.

This was a written question to her:

Were you personally aware of any instance when a labor

organization participating in the Wage and Hour Watch program

engaged in labor activities? If so, how did you respond? If

not, how would you have responded to such activity?

Here is what Ms. Smith responded in writing:

I am not personally aware of any instance when a labor

organization participating in the Wage and Hour pilot program

engaged in organizing functions while performing Wage and

Hour Watch functions. If I had been aware of such behavior I

would have decided to terminate them from the pilot.

Here is another question:

In your response to a question submitted by Senator Enzi on

May 12, 2009, you describe a March 2009 meeting with numerous

retail trade organizations where these organizations

requested that groups participating in the Wage and Hour

Watch pilot program be prohibited from giving out information

about their group while doing Wage and Hour Watch activities.

How did you respond to that request, and what actions did you

take to follow up on that request?

This has to do with labor unions too.

I told the trade associations that their request was

reasonable, that I would make sure the participating groups

would be specifically instructed to refrain from giving out

their own materials while doing Wage and Hour Watch

activities. I also told the trade associations that their

request would be explicitly incorporated in any future

written agreements. Within a week of that meeting, I

instructed Lorelei Boylan, Director of Strategic Enforcement

. . . to call each of the groups participating in the Wage

and Hour Watch pilot and give them that instruction. Within a

week after our conversation, she reported back to me that she

had contacted each of the groups, explained the specific

prohibition, and that they agreed to it. Since then, I have,

from time to time, asked my staff if they were aware of any

problems with the groups' complying with that particular

instruction, and they have reported no problems.

Again, here is her e-mail. Some talked about how these people would go in and use authority to do something. It was compared to the Neighborhood Watch program. As my friend said, in the Neighborhood Watch program, people can't go into people's homes. Well, under this program, the Wage and Hour Watch Program, they could not go into a private employer's business either. They couldn't go into somebody's office, somebody's business. They could go into a store where the general public could go, yes. They could go into Wal-Mart or they could go into a retail establishment where the public generally could go, but they could not go into, let's say, a manufacturing concern where the public was not allowed to go, the same as Neighborhood Watch. You couldn't go into somebody's home. You could sure go into a community center. You could go into a shopping center. You could do a lot of things. You could go to the public park as Neighborhood Watch.

But here is a letter from Patricia Smith dated January 15, 2009, long before any of this stuff ever came out:

Dear Labor Standards Staff:

I want to let you know about a new pilot program we will be

announcing on Friday called ``Wage Watch.'' The goal of the

program, as with all of our enforcement efforts, is labor law

compliance throughout the state.

Complying with the law. Anybody opposed to that? But here is the important paragraph:

Please note that the groups and individuals who participate

as Wage Watchers will not be agents, employees, or official

representatives of the Labor Department. They are not

replacing staff and they are not going to be conducting

investigations of any kind. Their role is limited to doing

outreach and community education, and to reporting any

violations they encounter to the Division.

I don't think you can get much clearer than that. That went out on January 15.

There was one other thing I guess I have to respond to, and that is that there is some confusion as to whether the idea for this came about internally or whether it was external. Again, I don't understand what the big problem is. Who cares where it came from? Again, it is a legal operation, ethical, aboveboard, not nefarious in any way.

There is some problem about whether it came from internally or outside. When Patricia Smith testified at the hearing, she was being accused of misleading us because she said it was ``an internally crafted group'' and that ``it

was only after we sat down and crafted it ourselves that we reached out to groups to see if they would be interested.''

Well, I have met with Ms. Smith. We have talked about this. We went through all the records. At that point in time when she testified that was to the best of her knowledge, that it had come from the people in her department and that they had suggested this and then they were going to go to outside groups to get people involved.

What she didn't know is that some people on her staff had been meeting with outside groups in terms of coming up with this kind of an approach. Then she corrected it later on when she said: Yes, I found out later that some people on my staff had done this.

But, again, let's keep in mind there was nothing inappropriate about this. There was nothing inappropriate about her staff meeting with outside groups to talk about this. Absolutely nothing. She just happened to make a mistake in front of the committee in saying they hadn't gone to outside groups before it came up, and actually it had been discussed with outside groups with her staff.

What is the big deal? Is someone saying there is something illegal? No, there is nothing illegal about that. Again, there is nothing inappropriate about it. It was simply a mistake she made in her testimony because she didn't have full knowledge of what her staff had been doing at that point in time in that Wage and Hour Watch.

Lastly, I know it will be said: Can she manage a large organization if she doesn't know about what one staff person may have done in terms of talking to an outside group? Well, as I point out, she ran an $11 billion agency, 4,000 employees. Her focus more than anything--and I have talked to her about this, and I talked earlier about it with the charts I had--was going after these employers who were cheating people out of their minimum wage, taking away retirement benefits, working them overtime and not paying them overtime. She was getting money back for these families. This was a $6,000 pilot project in an $11 billion agency. So she may have missed a little bit here or missed something there or missed one person talking to somebody.

I would be more upset about it if it were illegal activity. If, in fact, these things had been going on and they were not legal, they were not ethical, yes, then I would say the buck stops here, you bet. But that is not the case. This is perfectly legal, perfectly ethical.

So I can understand if something went on in that agency in a small pilot project and she didn't know every single thing about it and who talked to whom and when something occurred. That is the essence, as I understand it, of the arguments on the other side. That seems to be the essence of it.

I think it is making a mountain out of a molehill. She is perfectly qualified to be the Solicitor, and I hope the vote coming up shortly will confirm that.

Mr. President, I ask unanimous consent that Jeff Barham, a detailee in the Senate HELP Committee majority office, be granted floor privileges for the duration of the consideration of Ms. Patricia Smith's nomination to be Solicitor for the Department of Labor.

Madam President, I thank the Senators. The delay in the passage of the Tax Extenders Act of 2009 will cause problems for a wide variety of groups, as the distinguished Senators from Montana and Iowa have outlined. I believe the negative impact of our failure to act this year will be felt first, and felt most strongly, by manufacturers of biodiesel. Without the immediate passage of legislation to extend the biodiesel tax credit, a large number of biodiesel manufacturing plants are likely to close down because they do not have the resources to operate without the financial benefit of the credit.

Biodiesel is a key part of our Nation's success in biofuels. These biofuels, produced here in our own country, are helping to reverse our near-total dependence on petroleum for transportation in this country. The hard truth is that we get about 70 percent of our petroleum from other countries, and many of those countries are unstable or are unfriendly to the United States or both. So biodiesel is helping us restore national energy security.

Biodiesel is made from vegetable oils or animal fats. The biodiesel industry employed over 50,000 workers and added over 600 million gallons of biobased fuel last year to help power the diesel engines across our Nation and throughout the economy.

However, this is still a very small and struggling industry. It is absolutely dependent on continuation of

the biodiesel tax credit. Without this credit, most of the biodiesel plants in this country will simply be forced to shut down, thus idling important domestic fuels production capacity as well as putting as many as 20,000 employees out of work. We can't let that happen. And, if for any reason the credit was not made retroactive, bankruptcy would in a good number of instances be a quick result.

I do appreciate the efforts by the chairman and ranking member to move forward with this badly needed legislation at the first opportunity.

Yes, the intent of the religious exemption is to focus on an individual who is a member of a religious

sect described in 1402(g) and who is an adherent of the teachings of that sect notwithstanding his or her employment status.

The Senator is correct. The managers' amendment creates a clear bright line exemption for individuals described in 1402(g). This religious conscience exemption applies whether one is unemployed, a self-employed Amish person, an Amish person working for an Amish employer, or an Amish person working for a non-Amish employer.

Mr. President, for the last several weeks, all we have heard from the other side is attack, attack, attack. All we have heard from the other side is no, no, no. They keep talking. I just heard the Senator from Arizona saying this is not a bipartisan bill. I have heard so much talk on the other side in the last several weeks about how this should be bipartisan. Well, let's look at that for a second.

As I see it, the Republicans have no bill of their own. Our bill has 60 Democrats, a supermajority, a supermajority. Well, I guess there is a bill over there. It is the Coburn-Burr bill. It has seven cosponsors. That is it. That is it. Nothing else. Not all the Republicans are supporting it. My friends on the other side are all over the place. They can't even agree among themselves what they want to do. They have no comprehensive bill as we have come up with.

So I keep hearing that we Democrats are not bipartisan, but whom do we deal with? Just the Senator from Arizona? Just the Senator from Tennessee? How about the Senator from Oklahoma or the Senator from South Carolina? So I am sorry. I feel sorry the Republicans are all split up. They have not done their own homework to pull their own Senators together for something positive. So what they have done is they pulled together to say no, to try to kill the reform bill we have worked so hard on all year.

We extended a hand. If we had wanted to ace out the Republicans, we would have followed their lead on what they did in 2001, when they rammed through that tax cut for the wealthy. They did it on reconciliation so we couldn't filibuster it, so we couldn't have any debate on it. That is what they did. We didn't do it that way.

President Obama said we want to hold out the olive branch. We want to work with Republicans, so that is what we tried to do. Under the leadership of Senator Dodd on our committee, we had numerous meetings with Republicans. We had a markup session that lasted 13 days 54 hours. We accepted 161 of their amendments and, in the end, everyone on the Republican side voted against it.

Senator Baucus bent over backward, week after week. He not only went the extra mile, he went the extra 100 miles to try to get Republicans to work with him on this bill. In the end, only one Republican would vote for the bill out of committee.

So that is what we have. I am sorry to say my friends on the other side are in total disarray. They have nothing they can agree on. Well, we have something we have agreed on. Sixty, a supermajority, have agreed on moving a bill forward, a pivotal point in our history, in a decades-long march toward comprehensive health reform. It has alluded Congresses and Presidents going back to Theodore Roosevelt.

My friends on the other side defend the status quo. They want us to vote our fears--fear, fear, fear. Everything you hear, it seems, on the other side is fear. Be afraid. Well, it is not going to work this time because what the American people want is not fear, they want hope. They want the hope they will have the health care they need when they have to have it at a price that is affordable. They want to have the peace of mind and security of knowing that their children, if they have a preexisting condition, will be covered by health insurance. They want to have the peace of mind of knowing that if they lose a job, they don't lose their health insurance. The American people want the hope and the security of knowing that if they get ill, they will not be dropped by their insurance company. They want the hope and the security to know they aren't just one illness away from bankruptcy.

We are the only country in the world--the only one--where people can go bankrupt because they owe a medical bill. No other country would allow that to happen. We are the only one. This bill is going to stop that. People will not have to fear going bankrupt because someone in their family got a chronic illness or a disease that is going to cost a lot of money. The American people want us to move forward, and we are going to do it tonight at 1 o'clock. We are going to move forward. We are not going to vote fears, we are going to vote hope.

We are going to tell the American people we are going to do three big things. First of all, we are going to cover 94 percent of Americans with health insurance--94 percent. Thirty-one million people out there without health insurance are going to get health insurance.

Secondly, we are going to crack down on the abuses of the insurance companies. No more cancelling your policy just because you got sick. No more lifetime caps which basically cause more and more people to go into bankruptcy. No more of those lifetime caps. We are going to make sure your kids can stay on your policy until they are age 26. We are going to do away with all these preexisting condition clauses next year for children, up to age 18, and then for everyone later on after we get the exchanges set up.

Insurance companies will not be able to rescind your policy or drop you because you got cancer or heart disease. If you are a person out there who has your own health insurance policy right now and you like it, you can keep it. But guess what this bill will do. It will lower your premiums, and it will improve your coverage if you want to keep your own health insurance that you have right now.

Every year, about 45,000 Americans die in this country because they have no health insurance. Johns Hopkins did a study and said that children who have no health insurance are 60 percent more likely to die because of hospitalizations than kids who have health insurance coverage. It is a moral disgrace. The health insurance policies of America, what we have right now is a moral disgrace. You can talk to people from other countries, our closest allies, our closest friends who share so many of our values, and when they find out about our health care system, they say: How can you put up with it? This is disgraceful. You are the leader of the free world. You are supposed to set the example. And what a terrible example we have set in health care, what a terrible example.

Well, we have finally arrived at one of the most significant moments in the history of the Senate, one of the most significant. Our former chairman, Senator Ted Kennedy, fought all his life for national health insurance, and years ago, back in the 1960s, said health care ought to be a right, not a privilege.

He said that over 40 years ago, almost 50 years ago, that health care should be a right and not a privilege. It was always his highest priority. It was his great dream of an America where quality, affordable health care is that right. He thought of it as a moral imperative--a moral imperative. A lot of times, we lose that. We hear a lot of debate about how much this is, who is going to lose this, all these scare tactics. We see all these numbers and all that kind of stuff. We forget the essence of it. It is a moral imperative. We are called upon to right a great injustice, a great wrong that has been put upon the American people for far too long. It is a moral imperative that confronts us now that we will vote on in half an hour. We are closer than we have ever been to making Ted Kennedy's dream a reality.

A lot of people have worked very hard on this bill. I mentioned Senator Baucus. I mentioned Senator Dodd; Senator Reid, our leader, the amount of hours he has spent and the days he has spent here without his family, without going home, being here all the time working; our assistant leader, Senator Durbin. So many people have worked so hard on this bill. We have had so much input. Everyone has had input on this bill. Our Republican friends have had input on this bill. They had it in our committee. As I said, we accepted 161 amendments. So I guess you can say this bill has a lot of authors. But there is really only one author of this bill--Senator Ted Kennedy. It is his bill because it does get us the start.

To my friends, I say this is not the end of health care reform, it is the beginning. But we must make this beginning in order to fulfill that dream and

really make health care a right, not a privilege.

In half an hour, let's make history. The other side says fear. We say hope. The other side says no. We say yes. We say yes to progress, yes to people, yes to health care as an inalienable right of every American citizen.

I yield the floor.