[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.

                          ____________________