[Congressional Record Volume 155, Number 9 (Thursday, January 15, 2009)]
[Senate]
[Pages S557-S559]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LILLY LEDBETTER FAIR PAY ACT OF 2009--MOTION TO PROCEED
Cloture Motion
The PRESIDING OFFICER. Under the previous order, there is 4 minutes
equally divided between Senators Mikulski and Enzi.
Ms. MIKULSKI. Madam President, the Senate is not in order.
The PRESIDING OFFICER. The Senate will be in order.
The Senator from Maryland is recognized.
Ms. MIKULSKI. Madam President, I rise to urge my colleagues, on a
bipartisan basis, to vote for the legislation that is pending, which is
the cloture motion on the motion to proceed to the Lilly Ledbetter Act.
The reason we are advocating cloture on the motion to proceed is that
we do not have to filibuster this bill because we guarantee an open
process, that Senators will be able to offer amendments. We will be
able to debate with civility and comity, arrive at good ideas, consider
all good ideas and so on, so we do not need to filibuster. Second, we
do not need to delay. We need to vote for the motion to proceed because
that is what the American people are telling us to do. Much is talked
about economic stimulus, but if you want to help women, let's start
paying them equal pay for equal or comparable work. That is what the
Lilly Ledbetter bill will ensure. It will restore the law to the way it
was before the Supreme Court decision on Ledbetter v. Goodyear.
One of the objections to the bill is that the Ledbetter bill will
trigger lawsuits. Nothing could be further from the truth because it
did not trigger, open-ended, millions of lawsuits before the Supreme
Court decision.
We need to act. It is great to talk about a stimulus bill, but the
real stimulus is paying people for what they do. Madam President, you
should know.
This is a very serious bill. I know what my colleagues are talking
about is important, but women are waiting for us to act, so Senators,
if they could wait a minute, we could move ahead.
The Supreme Court rule is that a pay discrimination lawsuit must be
filed with the EEOC within 180 days of the initial decision to pay her
less than men performing similar acts.
The PRESIDING OFFICER. The time of the Senator has expired.
The Senator from Wyoming is recognized.
Mr. ENZI. Madam President, I have spent my 12 years in the Senate
trying to work across the aisle, trying to get things to happen around
here. I found the way things happen is, if they go through the whole
process--
Ms. MIKULSKI. I say to the Senator, I am not done. I have not
completed my statement.
Mr. ENZI. I think the Senator's time expired.
The PRESIDING OFFICER. The Senator's time had expired.
Ms. MIKULSKI. Madam President, first of all, I, of course, want to
proceed in the spirit of comity. I lost my time because this place was
so noisy. I couldn't talk because everybody else was talking. Frankly,
I will be happy for my colleague to speak, but I am going to ask
unanimous consent for an additional 4 minutes.
The PRESIDING OFFICER. Is there objection?
Mr. ENZI. Madam President, reserving the right to object, our side
would like the additional 4 minutes, then, as well.
The PRESIDING OFFICER. Is there objection? The Senator from Maryland
has asked for an additional 4 minutes. Is there objection to that
request?
The Senator from Texas is recognized.
Mrs. HUTCHISON. Madam President, can we amend the request to allow
both sides to have an equal amount of added time?
The PRESIDING OFFICER. That is the request. Is there objection to
both sides receiving a total of 6 minutes on this matter.
Mr. CORKER. Reserving the right to object, what will happen to floor
time thereafter? Where many of us have time to talk about TARP later
on, will we still have that time set aside prior to the TARP vote at
4:30?
The PRESIDING OFFICER. This will take an additional 8 minutes from
the time that is allocated for the TARP discussion, prior to the vote
that is scheduled at 4:30.
Mr. VITTER. I object.
The PRESIDING OFFICER. Objection is heard.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Wyoming has the floor at the
current time.
Ms. MIKULSKI. May I ask the Senator from Wyoming for the ability to
ask a unanimous consent request. I do not want to drag out the debate,
but I would like to make a few points. What I would like to be able to
do, with your concurrence, is just ask for 2 minutes and just have a
little bit of say, but you have your 4 minutes.
[[Page S558]]
Mr. ENZI. Madam President, I ask unanimous consent that the Senator
from Maryland get an additional 2 minutes and I have 4 minutes.
The PRESIDING OFFICER. Is there objection to each side receiving a
total of 4 minutes, an additional 4 minutes from the original? It is
the total of an additional 4 minutes on the debate on this matter.
Hearing no objection, the Senator from Maryland is recognized for an
additional 2 minutes and the Senator from Wyoming will receive 4
minutes at the conclusion of the Senator's remarks.
Ms. MIKULSKI. I thank the Senator from Wyoming. That is the way we
will proceed on this bill.
Madam President, we want to be able to proceed to this bill. I assure
my colleagues we will have ample debate to consider any and all
amendments, but I wish to be very clear that it is time to pass the
Lilly Ledbetter bill itself. It is very important that we make sure we
keep the courthouse door open for people to be able to file their
claims where they believe wage discrimination exists.
Wage discrimination not only affects women, but it affects all who
are discriminated against, and it is often minorities. We want to be
sure we keep the courthouse door open. What we do is simply restore the
law as it existed before the recent Supreme Court decision so that we
make sure the statute of limitations runs from the date of the actual
payment of a discriminatory wage, not just from the time of hiring.
That means employees can sue employers based on each discriminatory
act.
I will be yielding the floor, but before I do I am going to say once
again--this Senate is not in order. It has been very disturbing and
disrupting to stand up for something for which we have all been
fighting so hard.
I yield the floor, but I am very frustrated about today.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Madam President, I thank the Senator from Maryland for her
concern and her effort on the bill she has put together. I am going to
express my strong support for S. 166, which is the Hutchison
alternative. It is our understanding that if we are allowed to proceed,
there will be an open amendment process. I guess I am being asked by
the leader to allow that to happen once, so that we can see whether it
is actually going to happen. But I still wish to register my objection
to the process we appear to be going through. I worked for 12 years to
make this a more agreeable body, to work across the aisle.
We have moved, the HELP Committee--Health, Education, Labor, and
Pensions Committee--from being the most contentious committee to being
the most productive committee.
This bill should have gone through the committee process. We solve a
lot of things, we shorten the debate on the floor, and we eliminate the
need for all of these cloture motions which result in hours and hours
of time with no productivity. I think the American people want the
productivity, and the reasoning that comes from the committee process
that winds up with a very good product. We can have that on the labor
issues, but they have to go through committees.
I yield the remainder of my time to the Senator from Texas.
Mrs. HUTCHISON. I thank the Senator from Wyoming.
I think it is very important that we deal with this issue on the
promise that I will be able to offer my substitute because I believe it
is a substitute that gives the right for an aggrieved employee to bring
an action within a timeframe that is reasonable for the business to be
able to plan.
I am a person who has known discrimination. I am also a former small
business owner, and I know the importance of knowing what your
liabilities are and having clarity. That is why in the law, in every
cause of action, we do have statutes of limitation.
I look forward to debating with my colleague and friend, the Senator
from Maryland, to try to come to the right conclusion on a bipartisan
basis. I am going to vote for cloture on the promise that we will have
an open debate on this issue and try to come to a conclusion.
The Senator from Wyoming makes a good point. For the future, I hope
we will listen to what he is saying. Committees work around here.
Committees are where you can do markups, where we work in a bipartisan
way to make legislation better. We cannot write bills on the Senate
floor. In the future, I hope all of us will work toward allowing the
committee process to work. Today, we are going to take a leap of faith
that we will have the amendments and that we will come to a good
conclusion on this bill.
I yield the floor.
Ms. MIKULSKI. Madam President, the Senator from Texas and the Senator
from Wyoming and all on the other side of the aisle have the assurance
of both myself and the Democratic leadership that those amendments will
be offered, and we look forward to a spirited and enthusiastic debate
in a quiet Chamber of the Senate.
Mr. LEAHY. Madam Presdient, today, the Judiciary Committee is
conducting the confirmation hearing of Mr. Eric Holder to be the next
Attorney General of the United States. One of the Justice Department's
essential roles in our Federal system of government is to protect the
civil rights of all Americans, including those that prohibit
discrimination. The Bush administration's erosion of the Equal
Employment Opportunity Commission's long held interpretation of our
discrimination laws has created a new obstacle for victims of pay
discrimination to receive justice. The Justice Department has advocated
a position that has set back the progress we had made toward
eliminating workplace discrimination. This was a mistake.
Unfortunately, five Justices on the Supreme Court adopted the Justice
Department's erroneous interpretation of congressional intent. That
decision necessitates our action here today. We must pass legislation
so that employers are not rewarded for deceiving workers about their
illegal conduct. Equal pay for equal work should be a given in this
country.
I expect we will hear from some opponents of the bill that somehow
this legislation will encourage workers who are being paid less as a
result of discrimination to delay filing suit for equal pay. This
argument defies logic. Anyone who heard Lilly Ledbetter's testimony
last year before either the Senate Judiciary Committee or the Senate
Heath, Education, Labor and Pensions Committee knows that Ms.
Ledbetter, like other victims of pay discrimination, have no incentive
to delay filing suit. In the wake of the Supreme Court's decision in
Ledbetter, their employers now have a great incentive to delay
revealing their discriminatory conduct--blanket immunity. The reality
is that many employers do not allow their employees to learn how their
compensation compares to their coworkers. Workers like Ms. Ledbetter
and their families are the ones hurt by reduced paychecks, not their
corporate employers. These victims have the burden of proving the
discrimination occurred and that evidentiary task is only made more
difficult as time goes on. The bipartisan Ledbetter Fair Pay
Restoration Act of 2009 does not disturb the protections built into
existing law for employers such as limiting back pay in most cases to 2
years. The legislation does not eliminate the existing statute of
limitations. Instead, it reinstates the interpretation of when the 180
day time limit begins to run. In this way it allows workers who are
continuing to be short-changed to challenge that ongoing discrimination
when the employer conceals its initial discriminatory pay decision.
Opponents of the Fair Pay Restoration Act will no doubt raise even
more absurd reasons for opposing equal pay for equal work. They will no
doubt claim that somehow trial lawyers will benefit. The reality is
that the Supreme Court's Ledbetter decision could actually lead to more
litigation because workers will feel the need to file premature claims
so that time does not run out. The Congressional Budget Office has
concluded that this legislation ``would not establish a new cause of
action for claims of pay discrimination'' and ``would not significantly
affect the number of filings with the Equal Employment Opportunity
Commission'' or with the Federal courts.
Congress passed title VII of the Civil Rights Act to protect
employees against discrimination with respect to compensation because
of an individual's race, color, religion, sex or national origin but
the Supreme Court's
[[Page S559]]
Ledbetter decision goes against both the spirit and clear intent of
title VII of the Civil Rights Act. It also sends the message to
employers that wage discrimination cannot be punished as long as it is
kept under wraps. At a time when one-third of private sector employers
have rules prohibiting employees from discussing their pay with each
other, the Court's decision ignores a reality of the workplace--pay
discrimination is often intentionally concealed.
As the executive director of the U.S. Women's Chamber of Commerce
recently noted, ``The Fair Pay Restoration Act rewards those who play
fair--including women business owners--unlike the Supreme Court's
decision, which seems to give an unfair advantage to those who skirt
the rules.'' This legislation will encourage all corporations to treat
their employees fairly.
Unfortunately, this bipartisan civil rights legislation was
filibustered in the last Congress. Considering how deeply the recent
economic downturn has affected American families, we cannot afford
another filibuster of this common sense legislation. I am pleased to
join Senators Mikulski, Snowe, Kennedy and others in pressing for the
immediate passage of the Lilly Ledbetter Fair Pay Restoration Act of
2009.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the motion to
proceed to Calendar No. 14, S. 181, the Lilly Ledbetter Fair
Pay Act.
Jim Webb, Benjamin L. Cardin, Richard Durbin, Barbara
Boxer, Dianne Feinstein, Jeff Bingaman, Mary L.
Landrieu, Tom Harkin, Hillary Rodham Clinton, Charles
E. Schumer, Sheldon Whitehouse, Christopher J. Dodd,
Maria Cantwell, Debbie Stabenow, Patty Murray, Bernard
Sanders, Barbara A. Mikulski, Harry Reid.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call is waived. The question is, Is it the sense of the Senate that
debate on the motion to proceed to S. 181, the Lilly Ledbetter Fair Pay
Act of 2009, shall be brought to a close? The yeas and nays are
mandatory under the rule. This is a 10-minute vote.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Ohio (Mr. Brown) and the
Senator from Massachusetts (Mr. Kennedy) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Kentucky (Mr. Bunning).
Further, if present and voting, the Senator from Kentucky (Mr.
Bunning) would have voted ``nay.''
The yeas and nays resulted--yeas 72, nays 23, as follows:
[Rollcall Vote No. 4 Leg.]
YEAS--72
Akaka
Alexander
Baucus
Bayh
Begich
Bennett
Biden
Bingaman
Bond
Boxer
Burr
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Collins
Conrad
Corker
Dodd
Dorgan
Durbin
Feingold
Feinstein
Grassley
Gregg
Hagan
Harkin
Hutchison
Inouye
Johnson
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Martinez
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Shaheen
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--23
Barrasso
Brownback
Chambliss
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Graham
Hatch
Inhofe
Isakson
Johanns
Kyl
Lugar
Risch
Roberts
Sessions
Shelby
Thune
Vitter
NOT VOTING--3
Brown
Bunning
Kennedy
The PRESIDING OFFICER. On this vote, the yeas are 72, the nays are
23. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
____________________