[Congressional Record Volume 156, Number 15 (Tuesday, February 2, 2010)]
[Senate]
[Pages S406-S409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF M. PATRICIA SMITH TO BE SOLICITOR FOR THE DEPARTMENT OF 
                                 LABOR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of M. Patricia 
Smith, of New York, to be Solicitor for the Department of Labor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. HARKIN. 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

[[Page S407]]

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

[[Page S408]]

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.

[[Page S409]]

  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.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________