[Congressional Record Volume 156, Number 68 (Friday, May 7, 2010)]
[Senate]
[Pages S3385-S3404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           RESTORING AMERICAN FINANCIAL STABILITY ACT OF 2010

  The ACTING PRESIDENT pro tempore. The Senate will resume 
consideration of S. 3217, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 3217) to promote the financial stability of the 
     United States by improving accountability and transparency in 
     the financial system, to end ``too big to fail,'' to

[[Page S3386]]

     protect the American taxpayer by ending bailouts, to protect 
     consumers from abusive financial services practices, and for 
     other purposes.

  Pending:

       Reid (for Dodd/Lincoln) amendment No. 3739, in the nature 
     of a substitute.
       Sanders/Dodd modified amendment No. 3738 (to amendment No. 
     3739), to require the nonpartisan Government Accountability 
     Office to conduct an independent audit of the Board of 
     Governors of the Federal Reserve System that does not 
     interfere with monetary policy, to let the American people 
     know the names of the recipients of over $2 trillion in 
     taxpayer assistance from the Federal Reserve System.

  Mr. REID. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                  Unanimous-Consent Request--H.R. 4899

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of H.R. 4899, FEMA supplemental, the 
Federal Emergency Management Agency, which legislation is at the desk; 
that the only amendment in order to the bill be a Reid amendment 
regarding settlement of lawsuits against the Federal Government and 
emergency disaster assistance; that the amendment be considered and 
agreed to; the bill, as amended, be read a third time, passed, and the 
motion to reconsider be laid on the table; and that any statements 
related to this matter be printed in the Record.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  The Senator from Tennessee.
  Mr. CORKER. Mr. President, I rise to speak on the bill before us. I 
know John McCain from Arizona has filed an amendment on Fannie and 
Freddie, or GSEs, as we call them. I wish to speak on that amendment.
  I know I have worked with our Presiding Officer on big pieces of this 
bill. I very much appreciate the spirit with which we have worked on 
this bill.
  All of us know there are pieces of this legislation that are very 
appropriate. Certainly, the orderly liquidation title that the 
Presiding Officer, myself, Senator Dodd, Senator Shelby, and so many 
others have been involved in is an important piece of this legislation. 
All of us realize secondarily that the derivatives title, once it gets 
corrected and is in the right form, is a very important piece of trying 
to deal with what we as a country have dealt with over these last 
couple of years. Certainly, some elements of consumer protection are 
very important. I hope we are able to get that back in balance.
  I believe, as with any piece of legislation we pass here, sometimes 
we take a crisis and use it to cause things to happen that don't 
necessarily have to do with the crisis itself. I certainly believe that 
is the case with some of the expanse as it relates to consumer 
protection. But the fact is, I think the orderly liquidation title is 
something that is a useful tool. Hopefully, we will get the derivatives 
title right, and we will no longer have a situation where people are 
hugely money bad and don't settle up on a daily basis and end up with 
the kind of situation we are all so familiar with as it relates to AIG.
  There are still three areas we have not dealt with that are very 
important. One of them is underwriting. I hope the Presiding Officer 
and others will be able to work together and come up with an 
appropriate underwriting title. At the base and the core of this whole 
crisis, the fact is, what generated this worldwide crisis was the fact 
that a bunch of bad loans were written that should have never been 
written. This bill does nothing whatsoever--zero--to deal with loan 
underwriting. To me, that is a huge oversight. I am hoping that the 
Senator from Connecticut, the Senator from Virginia, and the Senator 
from Alabama--many of us will figure out a way to deal with it in an 
appropriate way.
  I have an amendment. It is an approach. I am hoping, over the course 
of the next week and a half, we will figure out a way to deal with the 
core issue of this last crisis, which is, no doubt, we wrote a bunch of 
loans--our country did--mortgages were extended to people who could not 
pay them back.
  Second, credit ratings. The fact is, the credit rating agencies were 
at the core of this. I know the bill attempts to deal with credit 
rating agencies by virtue of a pleading standard, making it so they are 
more liable for some of the recommendations they put forth. It is my 
sense what is going to happen, by addressing it that way, is the 
smaller firms that are just entering the market--that would like to be 
constructive as it relates to credit ratings--basically are going to be 
pushed out of the market, and the larger firms will be more 
consolidated or have a bigger piece of the business because they will 
be able to withstand some of the litigation that will take place, 
hopefully, if they make bad recommendations.
  But I think there are probably some other ways of looking at this. I 
know there are people in this body on both sides of the aisle who 
constructively are trying to figure out a way to deal with that.
  But the one glaring, glaring, glaring piece is Fannie and Freddie. I 
think one of the reasons we, as a body, have not dealt with Fannie and 
Freddie is they are huge, they are a big part of the market, the 
housing industry is very dependent upon them, and there has not been a 
consolidation around what most works to move them away from being such 
a big piece of the market and such a huge liability for our country.
  That is why I so much like the amendment John McCain from Arizona has 
put forth. I know he has worked with Judd Gregg and others. But what is 
outstanding about his amendment is--there are two things. No. 1, the 
fact is, we actually have to be honest with the American people about 
the cost, the liabilities we are picking up as it relates to the GSEs. 
Each year, for budgetary reasons, we will have to allocate moneys for 
the actual liabilities that exist. I think that is a good thing. I 
think that is a very important step. There will be some transparency 
into what those organizations are actually costing our country. I think 
all of us realize Fannie and Freddie are a huge problem and we need to 
deal with it.
  The second piece of the McCain amendment I like so much is it puts in 
place a date certain, a certain time by which we, as a body, have to 
have dealt with them. One of the things I worry about--again, it is 
pretty hard to believe we have not thoughtfully figured out a way to 
deal with the GSEs at the time of passage right now. What I worry about 
is this bill passes and we move on to other topics and still have these 
huge issues that our country needs to deal with that we know are out of 
control, that have done incredibly terrible jobs in underwriting and 
basically have missions that counter each other. The fact is, it has a 
social mission, it has a business mission. We have tried to put those 
together, and it has not worked. We all know we have to deal with that 
in a different way.
  What the McCain amendment would do is ensure that we deal with it. 
Sometimes, again, we move beyond a crisis, we start thinking about 
other things, and then we have these festering problems that have not 
been dealt with.
  So let me say this. I am being pretty honest right here on the floor. 
I realize none of us yet have come up with a silver bullet answer on 
what to do exactly with the GSEs. How do we move them into the private 
market without totally disrupting what is happening right now, with 
them being such a huge part of what is happening?
  The McCain amendment would just make sure, by a date certain, we deal 
with it, and we can do so incrementally. I know some people on the 
other side of the aisle might take the McCain amendment as a major 
criticism. I do not. I just look at it as a way for us to move ahead.
  So I hope my friends on the other side of the aisle will actually 
look at the substance. I think it is thoughtful. I truly do. I think it 
is something that allows us to start accounting for it. But then, 
within a certain period of time, within the next couple of years, we 
will have had to deal with Fannie and Freddie or some draconian things 
will occur, no doubt.
  I hope the Senator from Virginia, the Senators from Connecticut, 
Missouri,

[[Page S3387]]

and New Mexico, who are in this body today--I hope we can move beyond 
any partisan thinking. I will say, I think this body has done very well 
over the last week and a half. It is a complex piece of legislation. I 
think the Senator from Connecticut has tried to deal with this in a 
very good way on the floor.
  As a matter of fact, we had a vote last night that I think a lot of 
us were concerned about, and instead of somebody raising an objection 
and trying to get us to a 60-vote threshold, we had a 51-vote 
threshold. I thought that was the best of this body last night, and I 
wish to thank those in charge of escorting this bill through the 
process for keeping it that way. There could have been a motion to 
table. Somebody could have asked for a 60-vote threshold.
  I know the Senator from Missouri is going to speak next. She has been 
concerned about the process this year, and I join her in many of those 
concerns. But so far this process has been about the best I have seen 
in some time.
  So as I move back to the McCain amendment, I know it is being offered 
by a Republican. I do not offer criticisms toward either side of the 
aisle for what has happened with the GSEs. Let's face it, in fairness, 
both sides of the aisle have had a hand in these things being where 
they are. Administrations on both sides of the aisle have used these 
GSEs toward ends. There is no question. I am not trying to weigh which 
side is most responsible. But the McCain amendment allows us to move 
ahead in a thoughtful way with these organizations.
  So I will stop. I do urge my friends to please read the legislation. 
Maybe there is a second degree that is in order to make it even better. 
But I do believe it is a way for us to responsibly move ahead and deal 
with Fannie and Freddie. They cannot continue to exist as they are. 
Everybody in this body knows that. The American people know that. Let's 
deal with it. Let's pass the McCain amendment. Let's pass the McCain 
amendment with a tweak or two, if that is necessary. But let's show the 
American people we know it is a problem and we have the ability to work 
across party lines to be able to do so.
  I yield the floor, and I thank all of you for listening.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.


             Unanimous-Consent Requests--Executive Calendar

  Mrs. McCASKILL. Mr. President, I rise this morning in the cause of 
common sense in how the Senate works. We have had so many delays on 
nominations this year. Just as a quick review of where we stand, we 
have had over 51 rollcall votes on President Obama's nominations to 
serve in government under his Presidency. Of those 51 votes, over 80 
percent of them were confirmed by overwhelming margins. Yet they sat on 
the calendar for more than 3 months, on average--overwhelming support, 
sitting on the calendar for 3 months, on average.
  Just for some comparison, at the similar point in the Bush 
administration, there were eight nominees on the calendar. Right now, 
we have 107 nominees on the calendar. As I look at the list, I am 
confused because, as to most of the people on the list, we do not know 
why they are sitting there. We do not even know who is making them sit 
there. Enter stage left the anonymous hold--or as I like to call it: 
Nobody can blame me because they don't know who I am.
  There is a law we passed that has a rule in it--very plain language, 
very easy to understand--that once a Senator makes a unanimous consent 
request to confirm a nominee, then you have to come out in the 
sunlight. After 6 session days, after those requests are made in terms 
of a unanimous consent for their confirmation, then the rule says you 
must notify your party leader of your hold that you have on the 
nomination, and it has to be published in the Congressional Record.
  So last week I came to the floor and made 74 unanimous consent 
requests on nominations. Who were those 74? This is the amazing part. 
This is very amazing. Not one of the nominations I made a unanimous 
consent request on last week had any opposition in committee--none--not 
a voice vote ``no.'' No one spoke out and said: I have a problem. They 
flew out of committee--all 74 of them. But no one knows why they are 
sitting there or who has put a hold on them.
  I made the request, and in the intervening week we have had a lot of 
activity in that regard. The first thing that happened is, my friend 
from Oklahoma followed the rule. He notified his party leader of the 
holds he had, and it was published in the Congressional Record. He has 
a great habit of reading what we are doing around here. When he read 
the rule, it was obvious to him the rule said, once the request had 
been made, you say who your holds are. He has never been afraid, my 
friend from Oklahoma. He has never been afraid to take accountability. 
I have seen him with great courage enrage this entire room because he 
had some principles he was standing on. He is a great role model in 
that regard--his principled stands; and he owns them. That is all we 
are talking about. We are talking about owning them.
  Nobody in America gets why this stuff has to be secret. I know he has 
an amendment he wants to offer on secret spending, and I would like, on 
the record, to say I would like to join him in that amendment. The 
secret spending that goes on through the hotline process, he is 
absolutely right--publishing this stuff for 72 hours. He is absolutely 
right.
  But this practice is absolutely wrong. Unlike his other colleagues, 
he stepped out of the dark and into the sunshine. But no one else did.
  So now, a week later, we still have 53 of those 74 names for which we 
have no idea who is holding them or why. Some of them have been 
confirmed of the 74 since then--a few. I think the Senator from 
Oklahoma identified a hold on, I believe, six or seven. So now we still 
have 53 names for which no one knows who is holding them by people who 
are avoiding the rule.
  I had somebody come up to me the other day and say: Well, there is no 
enforcement. I said: Who would have thought you would have to make it a 
misdemeanor for a Senator to identify their hold? They voted for the 
bill. The vote was 96 to 2, so they voted for it. They just do not want 
to live by it.
  Today, I come back to the floor with my colleagues--and there will be 
a number of us here--to once again try to trigger the rule. The 
unanimous consent requests will be made. Today, we have 69 names--the 
53 from last week that are still out in the dark somewhere--we do not 
know who is holding them or why--and additional names that have been 
added to the calendar since then.
  Mr. President, 64 of the 69 nominees we will make a motion on today--
64 of the 69 nominees--had no opposition in committee--none. As we will 
hear over the next hour or so, these are important jobs: National 
Traffic Safety Board, the inspector general for the EPA. Can you 
imagine right now not having an inspector general of the EPA with what 
is going on in the gulf?
  The other good news--let me just briefly talk about this. I am going 
to yield to my colleague from New Mexico. We have a letter going 
around, and the letter is very simple. Everyone who signs the letter is 
taking a pledge--a public pledge--that they will never again 
participate in a secret hold; and, further, they support abolishing 
secret holds. If you want to hold somebody, you have to put your name 
on it.
  I am very proud of the fact we now have 59 signatures on that letter, 
both Republicans--a Republican so far, 2 Independents, and all the 
Democratic Senators, except 1. I am optimistic we will get the last 
remaining Democratic Senator, Mr. Byrd, since he cosponsored a 
resolution in 2003, along with Senator Wyden and Senator Grassley, who 
have done yeoman's work on this issue for years. Senator Lott and 
Senator Byrd, along with Senator Grassley and Senator Wyden, sponsored 
a resolution back in 2003 to try to end secret holds, and here we are 7 
years later with 53 nominees in the dark after the rule has been 
triggered.
  So I am optimistic. I certainly am hopeful we will have a lot more 
Republicans sign on the letter. I think we may. The iceberg is moving. 
We may actually bust up this thing. I am wildly optimistic--which is an 
unusual thing around here--about reform. It is hard to change the 
traditions of the Senate, especially when they are bad habits. Once 
again, my colleague from Oklahoma and I share the same view on earmarks 
and have tried from a principled

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position to not participate in those. I think that is also a bad habit. 
Clearly, we have a lot more people agreeing with us on secret holds 
than we do on earmarks.

  I look forward to making these motions today. I look forward to the 
Senators reading the rule, understanding the plain language, 
acknowledging they voted for it, and putting their name on these secret 
holds. Hold a nominee. The Senator from Oklahoma is holding some 
nominees. He has the right to do that. But the people we work for have 
the right to know why and who he is. That is all we are asking for 
today. We are not asking anybody to give up their holds; we are only 
asking people to identify who they are, to come into the sunshine for 
the transparency we all want to have as we serve the great people of 
this Nation.
  With that, for the unanimous consent requests, I will yield to my 
colleague from New Mexico, Senator Udall.
  The ACTING PRESIDENT pro tempore. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, I know our Presiding Officer 
today is also going to come forward, and we hope to see him down on the 
floor. I thank Senator McCaskill very much for her organizational 
efforts, hers and Senator Warner's, and for working on this issue. This 
is a very serious issue for the Senate in terms of how we move forward 
on the rules. I kind of liken it--and I have some history here, and I 
know everybody has their history when it comes to administrations.
  We have this administration elected a little over a year and a half 
ago, trying to put their people in place. They are trying to put people 
in place to run, for example--I am going to be talking about the 
Tennessee Valley Authority and talking about the EEOC, the Equal 
Employment Opportunity Commission. They are trying to put their people 
in place to run these agencies and to get the government to work. 
Sometimes in the past--and my father passed recently, but he used to 
visit with me about the way they used to do it in the old days. In the 
old days you got to put your people into place within the first couple 
of weeks of an administration. I remember my father telling me he took 
over as Secretary of the Interior in January. Within 2 weeks, he had 
all of his Presidential appointees in place. He had his team in place. 
He could start carrying out the responsibilities that had been given 
him by the President. My understanding is for most of the Cabinet 
members in President Kennedy's Cabinet, the same thing was true. Within 
a couple of weeks you had your team in place and you could go out and 
try to do the things your President had campaigned on.
  We are seeing a striking difference between those days back in the 
1960s and what happens today. We are seeing incredible obstruction in 
terms of trying to move forward. It is done through this process, as 
Senator McCaskill has brought out, of secret holds.
  Since the Obama administration--I saw a figure at the end of the 
first year--they only had 55 percent of their team in place; 55 percent 
of their team. What we are talking about is holding up the ability of 
the President to have his team in place and do his job. I think that is 
unacceptable. I think one of the areas that is the worst when it comes 
to this is the hold process, the secret holds.
  What is a secret hold? Everybody asks about these secret holds. This 
means a Senator is able to put a hold on a nomination and not come out 
in public. We all know that the very best thing is to shine light on 
the process. I think one of our Supreme Court Justices said it the 
best: Sunshine is the best disinfectant. With the secret holds, there 
is no sunshine. As many of us have pointed out on the floor, we want to 
bring sunshine to this process.
  I wish to congratulate Senator Coburn for being the only Senator to 
step forward in this week-long process of trying to bring people out 
into the public. I understand Senator McCaskill's reading of this 
statute and my reading of this statute is if you have not come forward 
at this point on this large number of nominees for which unanimous 
consent has been asked, and there has been an objection, you are in 
violation of the law. You are in violation of the law. Only Senator 
Coburn has stepped forward to say I am holding up--I believe he is 
holding up the Broadcasting Board of Governors. He is holding up six 
people on the Broadcasting Board of Governors.
  Today I am going to try to move--and we are doing this, I say to 
Senator Coburn, in a bipartisan way. We are not picking just Democrats. 
We are talking about the EEOC and the Tennessee Valley Authority, and 
we are moving forward with both Democrats and Republicans. That is why 
I am doing an en bloc request at this point so we can get both 
Democrats and Republicans in place.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar Nos.--
and this is important, the EEOC--616, Jacqueline A. Berrien, to be a 
member of the Equal Employment Opportunity Commission; 617, Chai Rachel 
Feldblum; 619, Victoria Lipnic, to be a member of the EEOC for the 
remainder of the term expiring July 1, 2010; and 620, Victoria Lipnic 
to be a member of the Equal Employment Opportunity Commission; that the 
nominations be confirmed en bloc, the motions to reconsider be 
considered made and laid upon the table en bloc, no further motions be 
in order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominees be printed in the 
Record.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. Mr. President, reserving the right to object, I wish to 
make an inquiry of the Chair as to the interpretation of the rule we 
passed, because it is my understanding that the rule doesn't require 
you to publish, but it does say the majority and minority leader are no 
longer obligated to honor your request for a hold if you have not.
  I ask for the Chair's opinion on that.
  The ACTING PRESIDENT pro tempore. The law being section 512, Notice 
of Objecting to Proceeding.

       In General. The Majority and Minority Leaders of the Senate 
     or their designees shall recognize a motion of intent of a 
     Senator who is a member of their caucus to object to 
     proceeding to a measure or matter only if the Senator--

let me read both of these; I will try to paraphrase:
  Following the objection to a unanimous consent to proceeding to, and/
or passage of a measure or matter on their behalf, submits the notice 
of intent in writing to the appropriate leader or their designee; and 
paragraph 2, not later than 6 session days after the submission under 
paragraph (1), submits for inclusion in the Congressional Record and in 
the applicable calendar section described in subsection (b) the 
following notice--and files a notice of intent.
  Mr. COBURN. OK. I will take that reading of the law as an assumption 
that agrees with the position I put out there.
  I would say--if the Chair would give me some time in consideration of 
my reserving the right to object--I served in the majority for 2 years 
prior to the Senators who are here on the floor today, and I understand 
the frustration. I have been there. I was on the other side. It is 
difficult. In terms of numbers, we have more of President Obama's 
nominees cleared than President Bush's nominees at the same point in 
time.
  I wish to raise the question. I am going to comply. First, I don't 
have any problem explaining why I hold somebody. The BBG nominees: The 
BBG is in such a mess, I want to make sure I visit with every nominee 
before I give them a clearance to get on that board, because we are 
wasting three-quarters of a billion dollars there and not doing 
anything positive for our country as we spend that money.
  There are a lot of reasons why we hold people. One of the dangers of 
coming forward, from my experience as a Senator myself, of putting a 
hold on and then putting it out there, is this: If I want to do further 
work or study or have a question, the assumption with a hold is that 
you don't want them to move, and that may not be the case at all. The 
reason for a hold oftentimes is I want to look at the history, I want 
to look at the background, and I want to take the time to meet the 
individual myself. That fulfills the true obligation of advise and 
consent.
  I would also say we were frustrated when we were in the majority the 
same way, and we played the same kind of parlance, except with our own 
nominees. When somebody on our side had a

[[Page S3389]]

hold, we didn't ever mention that. We didn't ever complain about that. 
We just complained when the other side did. So the perspective has to 
be--understanding the frustration; the President deserves advice and 
consent--but I also know there are 150 nominees right now sitting in 
committee who haven't been cleared in committee and we are a year and a 
half, a year and 4 months into this administration. It is not just 
that.
  I intend to object to every one of these, not because I personally 
have an objection, and I want my colleagues to know that, but one of 
the considerations of courtesy on the Senate floor is if somebody else 
does, you will honor that.
  The final point I will make is that the majority and minority leader 
usually work these things out. I think we passed 28 in the last few 
weeks, probably because of some of the good effort of my colleagues on 
the other side of the aisle to apply the pressure and heat. But I plan 
to object to every one of these because there are those on our side who 
have a problem with the individual. But I don't disagree that you ought 
to have the courage to stand up and say who you are holding and why you 
are holding them. I don't disagree with that. But that isn't our case 
right now and that isn't the case of the law, as I understand it; it 
just removes the obligation.
  So on that basis I will object to this first package and plan on 
objecting to every other one in forbearance and as a courtesy to those 
on my side of the aisle who have a problem with these nominees.

  The ACTING PRESIDENT pro tempore. Objection is heard.
  The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I am confused. This law was passed in 
the most bipartisan way possible: 96 to 2. Are we going to pretend this 
law doesn't say what it says?
  Let me make sure I put in the Record what it says:

       The majority and minority leaders of the Senate or their 
     designees shall recognize a notice of intent of a Senator who 
     is a member of their caucus to object to a proceeding or a 
     measure only if the Senator--
       (1) following the objection to a unanimous consent 
     proceeding submits the notice of intent in writing to the 
     appropriate leader or their designee; and
       (2) not later than 6 session days after the submission 
     under paragraph (1), submits for inclusion in the 
     Congressional Record and in the applicable calendar section 
     described in subsection (b) the following notice:
       I, Senator ____ intend to object to proceedings to ____ 
     dated ____ for the following reasons ____ .

  It says the majority and minority leader can recognize a hold only if 
the Senator first submits the notice of intent in writing after the 
unanimous consent request is made, and submits it to the Congressional 
Record.
  We are going to try to slice and dice the plain language of this 
about something as obvious and commonsensical as owning your hold? I 
know the Senator from Oklahoma doesn't agree with that. He has just 
said so. He is not doing this. I know he is here as a courtesy to his 
fellow Members. But with all due respect, it is 107 to 8 on the 
Executive Calendar.
  That is how many were on the calendar in the Bush administration at 
the same time--eight. There are 107 on the Executive Calendar in this 
administration. Honestly, we can do this forever. We can say when we 
were in the majority, we didn't do this and you did it; and when we 
were in the minority, we didn't do this and you did.
  We have a chance to stop it. We had 96 votes to stop it. Are we now 
going to stand on some kind of notion that the law doesn't say what the 
law says? I know part of the amendment of the Senator from Oklahoma is 
that he wants Senators to sign in writing that they have read what they 
are passing and that they understand the impact. I will be honest; I am 
going to cosponsor that, if he will let me, because I agree with the 
premise of it, although it is a little paternalistic to make Senators 
sign something saying they understand the impact.
  Does anybody believe Senators don't understand the impact of this 
language? Are we going to stand on some kind of formality that we don't 
have a way to enforce it. I guess the position the Senator is taking on 
behalf of the Republican caucus is that the law doesn't say what the 
law says.
  I have had a briefing this week on the standing rule versus the rule 
versus the law. That is what drives America crazy about this place. The 
secret hold is wrong. The Senator from Oklahoma knows it, and I 
guarantee you most of his colleagues do. You would be amazed how many 
Republicans have come up to me this week and said, ``I don't do it, 
Claire.''
  I ask the Senator from Oklahoma to join our letter since he doesn't 
do it either. He has courage. He has guts. He is accountable to the 
people who voted for him. But to stand on behalf of the Republican 
caucus on some notion that this doesn't say what it says--that is all 
we are sent here to do, honestly. Believe me, I know the stuff that 
goes on here--the equal opportunities--and the Democrats are doing some 
of this in the majority. But we cleared all the secret holds this week. 
We had a few--the Democrats had a few--and we cleared them all. I had a 
couple Democrats come up to me complaining: ``I can't believe you made 
me give up my hold.'' They were not happy about it. We had some 
reluctant signatures on the letter.
  Do you know what is nice about the letter? I think this is important 
for the Senator from Oklahoma to understand. It doesn't say we are 
giving up secret holds for this administration. A lot of my friends on 
the other side of the aisle have a spring in their step now and think 
my party is on the ropes and there is a chance that, come next year at 
this time, Senator McConnell will be the majority leader or that 
Congressman Boehner will be the Speaker. Do you know what. All the 
names on this letter did not say ``while we are in charge.'' It says 
``forever.'' We now have 58 members of this caucus--56 and 2 
Independents who caucus with us--and 1 Republican so far who say it is 
forever; as long as we are Senators, we are not going to do secret 
holds.
  Frankly, my friend from Oklahoma doesn't have to worry next year 
about secret holds from this side of the aisle. I am proud we have done 
that. There may be a nomination a future President makes that is a 
Republican, and if the people of Missouri are good and kind enough to 
hire me again, I may not like it. But I guarantee I will have the guts 
to say so.
  Mr. President, I wanted to clarify the plain reading of the law and, 
obviously, what its intent was. I don't think anybody with a straight 
face can argue what the intent was. It was to stop this stuff. We can 
either ignore the intent and stand on a slicing and dicing and parsing 
of the language and reassure the American people that we completely 
don't get it or we can have people come out of the shadows on these 
holds.
  I appreciate the Senator from New Mexico for allowing me to respond.
  Mr. UDALL of New Mexico. Mr. President, now we have seen 
demonstrated, I think dramatically, what the process is here. We tried 
to move on a bipartisan basis for the EEOC to put Democrats and 
Republicans in that important government agency, an agency that focuses 
on discrimination. If the people are not in place, it cannot move 
forward with that very important goal. Our friend on the other side of 
the aisle, Senator Coburn, has objected to putting Democrats and 
Republicans in that agency so it can move forward.
  I am going to try to move forward, also in a bipartisan way, on the 
Tennessee Valley Authority. Many people may not know, but in the 
Tennessee Valley, the power is provided by an agency called the 
Tennessee Valley Authority. Everybody knows how important power is to 
the economy. When we look around the world, we see communities being 
stifled because they have blackouts and brownouts and they don't have 
the available power. The Tennessee Valley Authority has a number of 
members who need to be appointed to the board of directors. We are 
moving today--both Democrats and Republicans--to try to bring home the 
point that we need to get this board of governors in place.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar Nos. 
740, Maryland A. Brown; 741, William B. Sansom; 742, Neil G. McBride; 
and 743, Barbara Short Haskew, all to be members of the board of 
directors of the Tennessee Valley Authority; that the nominations be 
confirmed en bloc, the motions

[[Page S3390]]

to reconsider be considered made and laid upon the table en bloc; no 
further motions be in order, the President be immediately notified of 
the Senate's action, and that any statements relating to the nominees 
be printed in the Record as if read.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. UDALL of New Mexico. Mr. President, moving forward with some 
individual nominees for President Obama to put in place people at the 
Department of Commerce, at the Health and Human Services Department, at 
the Treasury Department, at the State Department, and at the Energy 
Department--all very important government agencies. All President Obama 
wants is to have his team in place so they can start doing their work. 
But what we are seeing on the other side over and again is secret holds 
and delay.
  It is important to remind everybody that at this particular point in 
time 107 nominees of the executive branch are being held up. At this 
point in time in the past for President Bush, only 8 nominees were 
being held. So 107 are being held for President Obama, and for 
President Bush, there were only 8. You can only think and draw the 
conclusion that this is about preventing the President from getting his 
team in place, which is obviously a very important function.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 640, 
Eric Hirschhorn, to be Under Secretary of Commerce for the Export 
Administration; that the nomination be confirmed; that the motions to 
reconsider be considered made and laid upon the table; that no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record, as if read.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. UDALL of New Mexico. Mr. President, now proceeding with an 
important nomination for Health and Human Services, I ask unanimous 
consent that the Senate proceed to executive session for the purpose of 
consideration of Calendar No. 647, Jim Esquea, to be an Assistant 
Secretary of Health and Human Services; that the nomination be 
confirmed; that the motions to reconsider be made and laid upon the 
table; that no further motions be in order; that the President be 
immediately notified of the Senate's action, and that any statements 
relating to the nominee be printed in the Record as if read.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. UDALL of New Mexico. Mr. President, I will proceed with another 
important position in the Department of the Treasury. We all know the 
Department of the Treasury supervises everything that is out there in 
terms of our economy--a very important position.

  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 652, Michael Mundaca, 
to be an Assistant Secretary of the Treasury; that the nomination be 
confirmed; that the motions to reconsider be considered made and laid 
upon the table; that no further motions be in order; that the President 
be immediately notified of the Senate's action, and that any statements 
relating to the nominee be printed in the Record as if read.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. UDALL of New Mexico. Mr. President, here is another important 
nomination at the Department of State.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 722, Judith Ann 
Stewart Stock, to be an Assistant Secretary of State; that the 
nomination be confirmed; that the motions to reconsider be considered 
made and laid upon the table; that no further motions be in order; that 
the President be immediately notified of the Senate's action, and that 
any statements relating to the nominee be printed in the Record as if 
read.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. Reserving the right to object, Mr. President, I want to 
make it known that I am carrying on a Senate courtesy on my side of the 
aisle, and these are not necessarily my objections, but they are on 
behalf of my colleagues. I object.
  Mr. UDALL of New Mexico. Mr. President, I say to Senator Coburn that 
we very much understand that he is doing this for others. We want them 
to step forward. We want to get rid of these secret holds, as the 
Senator from Oklahoma has stepped forward on the broadcasting board. He 
has said he is holding up six people to go on that board of governors. 
It is out there in public, and it is something that all of us can 
examine and the media can examine. We can figure out whether his 
objections are legitimate. But that is the process. That is what is 
going on--secretly delaying the administration from getting its team in 
place.
  Let's admit what is going on here. The folks who are putting on these 
holds do not want to see the President have his team in place. If he 
doesn't have his team in place, I think the expectation is that they 
think he would not be able to do the job.
  Once again, the President nominated somebody important to work with 
Secretary Chu at the Department of Energy.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 726, 
Patricia A. Hoffman, to be an Assistant Secretary of Energy; that the 
nomination be confirmed; that the motions to reconsider be considered 
made and laid upon the table; that no further motions be in order; that 
the President be immediately notified of the Senate's action, and that 
any statements relating to the nominee be printed in the Record as if 
read.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. UDALL of New Mexico. Once again, they are being held up through 
secret holds, and Senator Coburn has said he is doing this on behalf of 
Members on his side--not allowing all of these people to get into the 
government and do the job. We are talking about important government 
agencies, such as the Department of Commerce, Health and Human 
Services, Secretary of the Treasury, Secretary of State, Secretary of 
Energy--all objected to today.
  Many of these nominations have been pending for a while. There are 
very few objections in committee. This is something that is being put 
forward for the purpose of delay.
  Mr. COBURN. Will the Senator yield for a moment?
  Mr. UDALL of New Mexico. I am going to yield to the Senator from 
Minnesota.
  Mr. COBURN. Will the Senator from Minnesota yield?
  Ms. KLOBUCHAR. For a minute, sure.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I think the motives ascribed by the 
Senator from New Mexico are improper. I do not think it is so people 
can't get into a job to cause President Obama problems. I reject that 
motive.
  With any administration, there is a very big difference of opinion. 
That is why we have elections. That is why things move like this in our 
country. It is about whether somebody objects to somebody's either 
philosophical bent or qualifications for a certain job.
  I make the point again that at the same time under a Republican 
Congress, President Bush had fewer numbers approved than President 
Obama does at this time.
  I hope we would not ascribe that motive. I want President Obama to 
have, in fact, the people he needs to have in place to effectively run 
our government. I will give the numbers again. To this date, President 
Obama has 596 of

[[Page S3391]]

his nominees confirmed. At the same time, President Bush had 570. In 
the two previous administrations, President Bill Clinton had 740 and 
President George H.W. Bush had 700.
  I think what my colleagues are fighting for is fine. I agree with 
them. I am on the team as far as that is concerned. But I think we 
ought to be careful with the motives we ascribe. I really do not think 
it is to try to handcuff the administration. I think it is different. 
Of course, the sign that is being put up is about who is pending. I 
understand that. Let's be careful on the ascribing of motives. As I 
talk with my colleagues, I do not really find that motive. Even though 
they may not be out front with it as I have been, that does not mean 
they necessarily want the administration to not be effective.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Minnesota.
  Senators need to be reminded that Senators may not yield the floor to 
one another. They must yield only for a question and through the Chair.
  Ms. KLOBUCHAR. Mr. President, I thank you for the correction.
  I appreciate my colleague's statement about his general support--I 
assume he meant for getting rid of secret holds, and he can correct me 
if I am wrong--his general support for changing this process and 
getting things done.
  I will say that when we are in this time of economic challenge, no 
matter what the motives, I really do not care what is in the heads of 
my colleagues when they put on the holds. I do not even want to go 
there. What I care about is getting things done in the government when 
we have so many people unemployed, when we clearly have to move ahead 
and do more about small business and exports.
  All I know is this: If we want to talk about the difference, at this 
point, 107 Obama nominees are on hold and being obstructed. At the same 
time--whether it was because not enough were nominated, I do not really 
care--at this same point, Bush nominees waiting for a vote--there were 
eight.
  My bigger answer to this is, who cares about who did it or who did 
what when. What matters to me is that we move ahead and get going.
  It is no surprise to me that the Senators who have taken the floor 
this morning and are surrounding me are Senators who want to see good 
government, Senators from open States with big blue skies, such as the 
State of New Mexico, Senator Udall, who is now the Presiding Officer; 
or my State, the State of Minnesota, which has always been a leader in 
open government in moving things ahead; or Senator Warner, who knows 
what it is like to manage a large State and knows you have to have your 
team in place if you want to get things done in the State of Virginia; 
or Senator McCaskill, who has been leading this effort from the Show-Me 
State, the State of Missouri--show me who is doing these holds.
  The bigger issue is not just making sure we can run this government 
and getting the government moving and helping people again. The bigger 
issue for me is that things should not be done in secret. If you are 
going to put a hold on someone, we should know who and why you are 
doing it. I said the other day that this reminds me of an Olympic 
sport, a relay race, passing a baton from Senator to Senator so we 
cannot figure out who is holding the baton. They rotate who is putting 
on the holds, and they get around the rule. If delay were an Olympic 
sport, my colleagues would be getting a gold medal because there has 
been so much delay with these nominees, and it has to stop.
  I want to give a few examples of the kinds of nominees we are talking 
about and the kinds of nominees we would like to see get confirmed. I 
want to give some examples of who these are, and I will then go through 
and make a request to confirm them.
  We are right now in the middle of an oilspill of cataclysmic 
proportions in the gulf. I am going there this afternoon to see it. We 
are going to have a major hearing in our environmental committee on 
Tuesday. Do you know who is being held up right now? Michael Tillman, 
to be a member of the Marine Mammal Commission, is being held up; 
another guy, Daryl Boness, to be a member of the Marine Mammal 
Commission. Normally, one might not think this is the most important 
position in government. I say two things: One, we are dealing with 
marine issues right now, extreme marine issues of what is going to 
happen to our wildlife in the oceans. The second thing we are doing 
with this--why would anyone hold up members of the Marine Mammal 
Commission?
  One guy I actually know--Mark Rosekind, to be a member of the 
National Transportation Safety Board. He does a good job. Like you, Mr. 
President, I am a member of the Commerce Committee. We know how 
important it is.
  Earl Weener, to be a member of the National Transportation Safety 
Board. As we are dealing day-in and day-out with issues of threats to 
our transportation, the potential of airplanes that have gone down in 
the sky in the middle of Buffalo, and we have potential terrorist 
threats to our transportation system, what are we doing? We are holding 
up the nominees.
  We have Toyota putting out cars that basically kill people across the 
country because the safety measures were not taken. They just paid the 
biggest fine in the history of this country. What are we doing? There 
are Members who are secretly holding up members of the National 
Transportation Safety Board. Why would we do that?
  I will start with these.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 592, Mark Rosekind, 
and Calendar No. 787, Earl Weener, both to be members of the National 
Transportation Safety Board; that the nominations be confirmed en bloc, 
the motions to reconsider be considered made and laid upon the table en 
bloc, no further motions be in order, the President be immediately 
notified of the Senate's action, and that any statements relating to 
the nominees be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Again, this is a perfect example. We look at what 
happened with the Buffalo flight going down. We look at what happened 
with the Toyota cars. We look at what is going on across this country 
as we are focusing on terrorism and what happened in Times Square just 
recently. This is not the time to block nominees to the National 
Transportation Safety Board. Whatever the motives, whatever the 
reasons, at this point I do not care. I think the President should be 
able to have his team in place.
  Next, I mentioned the Marine Mammal Commission, as we are dealing 
with an oilspill across the gulf.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 784, 
Michael F. Tillman, and Calendar No. 786, Daryl J. Boness, both to be 
members of the Marine Mammal Commission; that the nominations be 
confirmed en bloc, the motions to reconsider be considered made and 
laid upon the table en bloc, no further motions be in order, the 
President be immediately notified of the Senate's action, and that any 
statements relating to the nominees be printed in the Record.

  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Very good. Again, marine mammals. We are dealing with 
animals that are almost certainly going to die because of this 
oilspill, and there are people on the other side of the aisle who have 
decided to block these nominations.
  Next, Warren Miller, nominated to be the Director of the Office of 
Civilian Radioactive Waste Management at the Department of Energy. I 
don't know the reasons this hold was put on, why he is held up, but I 
do not believe any person in this country believes we should have no 
person directing the Office of Civilian Radioactive Waste Management.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 404, the nomination of 
Warren Miller; that the nomination be confirmed, the motion to 
reconsider be considered made and laid upon the table, no further 
motions be in order,

[[Page S3392]]

the President be immediately notified of the Senate's action, and that 
any statements relating to the nominee be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Next we go to Winslow Lorenzo Sargeant, to be Chief 
Counsel for Advocacy in the Small Business Administration. Mr. 
President, 64 percent of the jobs in this country are created by small 
businesses. Wall Street has been making record profits, but small 
businesses in this country are still suffering. Wall Street got a cold; 
Main Street got pneumonia. This is the time for a robust Small Business 
Administration.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 427, the nomination of 
Winslow Lorenzo Sargeant; that the nomination be confirmed, the motion 
to reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Mr. President, the next one that is being held of 
these 107 nominations is Benjamin Tucker, to be Deputy Director for 
State, Local, and Tribal Affairs in the Office of National Drug Control 
Policy. As a former prosecutor--and I know you do, Mr. President, as a 
former attorney general--I understand the importance of having people 
in place to work on our national drug policy and to reduce the illegal 
drugs in this country.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 556, 
Benjamin Tucker; that the nomination be confirmed, the motion to 
reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Next, John Laub, to be Director of the National 
Institute of Justice.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 581, John Laub; that 
the nomination be confirmed, the motion to reconsider be considered 
made and laid upon the table, no further motions be in order, the 
President be immediately notified of the Senate's action, and that any 
statement relating to the nominee be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Mr. President, the next of the 107 nominations being 
put on hold is P. David Lopez, Calendar No. 618, to be general counsel 
of the Equal Employment Opportunity Commission.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 618, P. David Lopez; 
that the nomination be confirmed, the motion to reconsider be 
considered made and laid upon the table, no further motions be in 
order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Mr. President, the next one is Jill Long Thompson, to 
be a member of the Farm Credit Administration. Coming from an 
agricultural State, I understand how important it is to have people in 
place for the Farm Credit Administration, especially during this 
difficult time. Because of agencies such as the Farm Credit 
Administration, at least our rural areas have not gone off the cliff 
and have maintained some stability but are always challenged.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 628, Jill Long 
Thompson; that the nomination be confirmed, the motion to reconsider be 
considered made and laid upon the table, no further motions be in 
order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Mr. President, next, James P. Lynch, to be Director of 
the Bureau of Justice Statistics. Again, as a former prosecutor, it is 
incredibly important that we have statistics on crime, that we know 
what is going on so we can develop the best policies and triage the 
cases so we can keep our neighborhoods safe.
  I ask unanimous consent that the Senate proceed to executive session 
for the purpose of consideration of Calendar No. 705, James P. Lynch; 
that the nomination be confirmed, the motion to reconsider be 
considered made and laid upon the table, no further motions be in 
order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. As a member of the Commerce Committee, again, I am 
very concerned that we still do not have a Deputy Administrator for the 
Federal Aviation Administration in place. As we know, there have been 
many recent incidents. We are trying to get the FAA reauthorization 
done to finally modernize our airports with NextGen so we can have the 
next generation of airport control, so we can better process our 
planes, so we can better land these planes, so we can have more safety, 
so we can have less congestion at our airports. This is very difficult 
to do when you don't have in place all of your managers who are 
supposed to be managing the Federal Aviation Administration. We have 
had incidents in Minnesota of a plane that overran the airport and 
ended up in Wisconsin. We have had planes that have been sitting on the 
tarmac for 6 hours with passengers without food and water.

  We have had all kinds of issues with aviation, and yet--and yet--my 
colleagues on the other side of the aisle, while supportive at times of 
these efforts to modernize our air traffic control system, are blocking 
the nomination of the deputy administrator for the Federal Aviation 
Administration.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 782, 
Michael Peter Huerta; that the nomination be confirmed, the motions to 
reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Mr. President, another job here that is unfilled--one 
of the 107 relating to maritime issues, and again we are dealing with 
an incredibly sensitive and catastrophic issue with this oilspill in 
our oceans--the Administrator of the Maritime Administration is being 
held by my colleagues on the other side of the aisle. I don't know what 
the motives are. Maybe they do not like this person. We don't know who 
is holding this. All I know is that a President has to get his team in 
place when he is dealing with an issue as catastrophic as this BP 
oilspill.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 783, 
David Matsuda; that the nomination be confirmed, the motions to 
reconsider be

[[Page S3393]]

considered made and laid upon the table, that no further motions be in 
order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Finally, Mr. President, we have Arthur Allen Elkins, 
who has been nominated to be the inspector general of the Environmental 
Protection Agency. Again, we are dealing with an environmental crisis 
down in the gulf coast area. Yet we can't even get this inspector 
general in place.
  I know many of my colleagues on the other side of the aisle support 
having inspectors general in place so we can look at what is going on 
in government, so we can figure out what is happening and get things 
right. Yet this nomination is being held.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 794, 
Arthur Allen Elkins; that the nomination be confirmed, the motions to 
reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Ms. KLOBUCHAR. Mr. President, I see the Presiding Officer has a smile 
on his face as he realizes I have reached the end of the nominees I am 
reporting on today. But I will tell you this: Having managed an office 
of 400 people--a government office, a local county attorney's office--I 
can't even imagine trying to run that place without having my top 
people in place and that kind of security.
  It is very difficult to cut government spending, to make the kinds of 
decisions you need to make when you don't have your top team there to 
get the work done. Worse than that, with these secret holds, it is very 
hard to even understand why these people are being held, who is holding 
them. That is why we are working so hard to get rid of this.
  As I said, this crop of Senators that has come here in the last 2 
years does not like business as usual. We just want to get the business 
done.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, first, let me thank my colleagues for 
being here this morning. I am pleased to join this effort. I want to 
particularly thank my colleague from Missouri, who has been a 
relentless voice on opening up and bringing a little sunshine to not 
only this issue but a lot of things that go on here that maybe make 
some of our colleagues a little uncomfortable, but she is constantly 
being that voice and pushing and prodding and trying to make sure we 
improve the process.
  I also want to thank my colleague, the Senator from Oklahoma, who--as 
I think the Senator from Missouri said--we may not always agree with, 
but there are very few Members in this body who are more 
straightforward and honest about what they believe in and are more 
consistent, which probably frustrates some of us. But he is absolutely 
consistent in what he believes and he holds our feet to the fire. I 
commend him for bringing forward his holds and being willing to step up 
and explain them.
  Like the Presiding Officer, I am a new guy here. But unlike so many 
of my colleagues, I have never been a legislator. I was a business guy 
for a number of years and I had the honor of serving as Governor. Quite 
honestly, I had a little TV in the Governor's office and whenever the 
legislature was in, I simply turned it off. So I don't fully 
appreciate, perhaps, all of the traditions of a legislative body. And I 
don't, by any means, know the history as well as my colleague from 
Missouri and my colleague from Oklahoma surrounding holds. But I did a 
little bit of research, and it seemed to me this ``holds'' notion came 
up as a courtesy in the last century because Senators had to travel a 
long distance to get to the body. They couldn't be here because they 
were traveling--on horseback--and it would take days or weeks. So 
somebody might say, as a courtesy, that we are going to set this aside 
or put a hold on somebody until the Senator can get here and explain 
himself or herself--I guess himself, at least at that time--in a fuller 
manner.
  It seems to me that some of the traditions of this institution that 
were used on occasion--whether it is holds or filibusters or what have 
you--to keep this body functioning, are now being so overused that we 
seem to be institutionalizing dysfunction. I think the Senator from 
Oklahoma has made the case that neither side has clean hands, and 
whatever is up today may be down tomorrow.
  One of the things I think the Senator from Missouri in her effort has 
done is to say: We are not saying we ought to change the rules for this 
moment in time. We want to change the rules forever. I can't explain to 
anybody in the Commonwealth of Virginia why in the 21st century we have 
something called a ``secret hold,'' where somebody can say: We don't 
like this guy or gal and we don't want them to be put forward, debated, 
and voted up or down for some secret, unknown reason.
  I know my colleague, the Senator from Oklahoma, has said that most of 
the Members may have a legitimate reason--because they do not agree 
with the individual's philosophy or their background, and that is a 
very legitimate reason to raise--but I do know there has been at 
least--and I can't ascribe motives--a recent press report about an 
issue that brought some controversy here to the floor where a Member 
held one of the President's nominees not because the Member felt there 
was anything wrong with the nominee's qualifications but as a leverage 
matter, to try to encourage the administration to change a law with 
Canada on a totally unrelated matter. That, to me, seems like 
institutionalizing dysfunction and not--back to what I have at least 
been able to read about the history of holds--as a courtesy because 
folks can't get here and make their case in person. Even with our 
slightly dysfunctional airline system at this point, we can get here 
within a couple of days, absent storms.

  So again commending my colleague from Oklahoma for stepping up on 
this one, where there is a problem with someone the President is 
putting forward--this President or any future President--we ought to 
acknowledge it, we ought to say what is wrong, we should have a 
spirited discussion, and then we should either vote the person up or 
down.
  I am anxious to listen. If there is something wrong with some of 
these folks, let's vote them down and tell the President to put up 
somebody else. But 16 months into this administration--as a former 
business CEO and a former CEO of the Commonwealth of Virginia, I 
couldn't imagine having my folks languish in limbo in this kind of 
skull and crossbones kind of secret hold society stuff. It seems as if 
it was something that came out of the 18th or 19th century, where 
certain institutions of higher learning transported this idea of secret 
holds here to the floor of the Senate. It doesn't seem to make sense.
  I am going to finish, because there are other colleagues, and the 
Senator from Oklahoma is going to have to rise a number of times 
because there are a lot of folks we have to go through, so I won't go 
on with this issue. But I am proud to be part of this effort with the 
Senator from Missouri, and I hope the Senator from Oklahoma will 
continue to raise issues--particularly around public spending--where I 
hope to find lots of places of common cause to join him. I appreciate 
his willingness to come forward. I sure as heck hope that more Members, 
on both sides of the aisle, will join this effort.
  We can be respectful of the Senate and we can be respectful of its 
traditions, but it sure as heck seems to me that in the 21st century, 
the notion of secret holds ought to be one of those traditions that 
gets left behind. So in that spirit, I have two sets of nominations, 
both en bloc, since they are both Democrats and Republicans, to try to 
make the point that, in some small way, this is not about partisanship. 
It is about process.

[[Page S3394]]

  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session for the purpose of consideration of Calendar Nos. 
589, Anthony Coscia; 590, Albert DiClemente; and 788, Jeffrey R. 
Moreland, all to be Directors of the Amtrak Board of Directors; that 
the nominations be confirmed en bloc, the motions to reconsider be 
considered made and laid upon the table en bloc, no further motions be 
in order, the President be immediately notified of the Senate's action, 
and that any statements related to the nominees be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. WARNER. Mr. President, I ask unanimous consent that the Senate 
proceed to executive session for the purpose of consideration of 
Calendar Nos. 500, Julia Reiskin, and 501, Gloria Valencia-Weber, both 
to be members of the Legal Services Corporation; that the nominations 
be confirmed en bloc, the motions to reconsider be considered made and 
laid upon the table en bloc, no further motions be in order, the 
President be immediately notified of the Senate's action, and that any 
statements relating to the nominees be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. WARNER. Once again, Mr. President, I appreciate the courtesy of 
the Senator from Oklahoma and the leadership of the Senator from 
Missouri. We are going to continue to raise this issue, and with the 
same kind of relentlessness the Senator from Oklahoma raises on public 
spending. I hope he continues making some progress. I look forward to 
joining him on some of his efforts, and I hope this list of now 59 
Senators will include many Members from both sides. It seems to me to 
make good common sense.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mrs. McCASKILL. Mr. President, I listened to my colleague from 
Oklahoma, and I understand it is difficult to listen to any of us put 
motives on something when we don't know what the reason is, and 
ascribing motives is unfair when you don't know. But sometimes my 
experience as a mother pops up in my brain, and I think of my kids when 
they were little--and especially as they became teenagers--and I 
remember one time catching one of my kids. He had sneaked out of the 
house at night in the dark. I caught him and I said: You know, you are 
in big trouble, buster. He said: Well, mom, I wasn't doing anything 
wrong. We just walked around the block. We weren't doing anything you 
would get mad about. We weren't drinking, we weren't smoking, we 
weren't chasing down girls. We just walked around the block. I said: 
Well, you know, if you do it in the dark and you are not willing to 
tell me about it, then you know what I am going to assume? I am going 
to assume you are doing something sneaky and underhanded, and you just 
need to bank on that; that if you think you have to hide something from 
me, you have to assume I am going to think you are doing something 
wrong. If you are not willing to talk about it, you are not willing to 
own it, you are not willing to tell me about it, you are in trouble. 
End of discussion.
  That is why we are ascribing motives. It is only logical to assume. 
After voting for a bill that clearly says once the unanimous consent 
motion is made you have to come out of the darkness, you have to 
explain what you are doing, the fact that these people are not coming 
forward--I have to tell you, if they were my kids, I would assume 
this--they are doing something they aren't proud of. I would assume 
that, if they were doing the sneaky, and that is what this is. This is 
sneaky, because they are not stepping up--like the Senator from 
Oklahoma has. Step up, own it, hold for as long as you like. Some of us 
may agree with your reasons and join you in your hold.

  But there are literally names on this list where no one knows why 
they are being held. The White House does not know, the nominee does 
not know, maybe Leader McConnell doesn't even know. It is nonsense. It 
is plain and simple nonsense.
  My friend from Oklahoma is absolutely correct, we should not ascribe 
motives. But it is only human nature, if people are not looking at the 
plain language of the ethics bill they proudly voted for and doing what 
the plain language says you are supposed to do, people are going to 
start thinking something underhanded is happening. The only way to fix 
that is to step up.
  Mr. President, I ask unanimous consent the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 648, 
Michael W. Punke, of Montana, to be a Deputy United States Trade 
Representative, with the rank of Ambassador; that the nomination be 
confirmed, the motions to reconsider be considered made and laid upon 
the table, no further motions be in order, the President be immediately 
notified of the Senate's action, and that any statements relating to 
the nominee be printed in the appropriate place in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 649, Islam A. Siddiqui, of Virginia, to be Chief 
Agricultural Negotiator, Office of the United States Trade 
Representative; that the nomination be confirmed, the motions to 
reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed at the appropriate place in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 799, Carolyn Hessler Radelet, of the District of Columbia, 
to be Deputy Director of the Peace Corps; that the nomination be 
confirmed, the motions to reconsider be considered made and laid upon 
the table, no further motions be in order, the President be immediately 
notified of the Senate's action, and that any statements relating to 
the nominee be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 800, Elizabeth L. Littlefield, of the District of 
Columbia, to be president of the Overseas Private Investment 
Corporation; that the nomination be confirmed, the motions to 
reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 801, Lana Pollack, of Michigan, to be a Commissioner on 
the part of the United States on the International Joint Commission, 
United States and Canada; that the nomination be confirmed, the motions 
to reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 809, Bisa Williams, of New Jersey, a Career Member of the 
Senior Foreign Service, Class of Counselor, to be Ambassador 
Extraordinary and Plenipotentiary of the United States of

[[Page S3395]]

America to the Republic of Niger; that the nomination be confirmed, the 
motions to reconsider be considered made and laid upon the table, no 
further motions be in order, the President be immediately notified of 
the Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 810, Raul Yzaguirre, of Maryland, to be Ambassador 
Extraordinary and Plenipotentiary of the United States of America to 
the Dominican Republic; that the nomination be confirmed, the motions 
to reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 811, Theodore Sedgwick, of Virginia, to be Ambassador 
Extraordinary and Plenipotentiary of the United States of America to 
the Slovak Republic; that the nomination be confirmed, the motions to 
reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 812, Robert Stephen Ford, of Maryland, a Career Member of 
the Senior Foreign Service, Class of Minister-Counselor, to be 
Ambassador Extraordinary and Plenipotentiary of the United States of 
America to the Syrian Arab Republic; that the nomination be confirmed, 
the motions to reconsider be considered made and laid upon the table, 
no further motions be in order, the President be immediately notified 
of the Senate's action, and that any statements relating to the nominee 
be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 824, Dana Katherine Bilyeu, of Nevada, to be a Member of 
the Federal Retirement Thrift Investment Board; that the nomination be 
confirmed, the motions to reconsider be considered made and laid upon 
the table, no further motions be in order, the President be immediately 
notified of the Senate's action, and that any statements relating to 
the nominee be printed in the Record.

  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 826, Michael D. Kennedy, of Georgia, to be a Member of the 
Federal Retirement Thrift Investment Board; that the nomination be 
confirmed, the motions to reconsider be considered made and laid upon 
the table, no further motions be in order, the President be immediately 
notified of the Senate's action, and that any statements relating to 
the nominee be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 827, Dennis P. Walsh, of Maryland, to be Chairman of the 
Special Panel on Appeals; that the nomination be confirmed, the motions 
to reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER (Mr. Warner). Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 829, Todd E. Edelman, of the District of Columbia, to be 
an Associate Judge of the Superior Court of the District of Columbia; 
that the nomination be confirmed, the motions to reconsider be 
considered made and laid upon the table, no further motions be in 
order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 830, Judith Anne Smith, of the District of Columbia, to be 
an Associate Judge of the Superior Court of the District of Columbia; 
that the nomination be confirmed, the motions to reconsider be 
considered made and laid upon the table, no further motions be in 
order, the President be immediately notified of the Senate's action, 
and that any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. I ask unanimous consent the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 832, 
David B. Fein, to be United States Attorney for the District of 
Connecticut; the nomination be confirmed--I believe, Mr. President, 
that the United States Attorney for the District of Connecticut would 
have jurisdiction over any Federal crimes that may have been committed 
by the individual who tried to blow up people in Times Square on 
Saturday night. That man lived in Connecticut. Any activities that he 
engaged in, in planning this dastardly plot in which, thank God, no one 
was killed, but we have no U.S. Attorney in Connecticut. That would be 
the chief law enforcement officer on any Federal crimes that have been 
committed by this American citizen who has confessed to some of his 
crimes, but we may not be aware of other crimes that may have been 
committed.
  The nomination of David B. Fein be confirmed to be United States 
Attorney for the District of Connecticut, the motions to reconsider be 
considered made and laid upon the table, that no further motions be in 
order, and the President be immediately notified of the Senate's 
action, and any statements relating to the nominee be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. Reserving the right to object, I am not sure it is a 
vacancy in the District of Connecticut at the U.S. Attorney's office. I 
think this is a replacement nomination. And I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 833, Zane David Memeger, to be United States Attorney for 
the Eastern District of Pennsylvania; that the nomination be confirmed, 
the motions to reconsider be considered made and laid upon the table, 
no further motions be in order, the President be immediately notified 
of the Senate's action, and that any statements relating to the nominee 
be printed in the Record.

[[Page S3396]]

  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 834, Clifton Timothy Massanelli, to be United States 
Marshal for the Eastern District of Arkansas; that the nomination be 
confirmed, the motions to reconsider be considered made and laid upon 
the table, no further motions be in order, the President be immediately 
notified of the Senate's action, and that any statements relating to 
the nominee be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate 
proceed to executive session for the purpose of consideration of 
Calendar No. 835, Paul Ward, to be United States Marshal for the 
District of North Dakota; that the nomination be confirmed, the motions 
to reconsider be considered made and laid upon the table, no further 
motions be in order, the President be immediately notified of the 
Senate's action, and that any statements relating to the nominee be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Mr. President, there are some nominations on whom the 
request has not been made. My colleague from Rhode Island has a number 
of judicial appointments. He will return to the floor to make those 
unanimous consent requests later--I assume soon. There will be 64 total 
requests that will be made today that we cannot find opposition for--64 
we cannot find opposition.
  I am going to now make five requests to which there was opposition. 
The ones I just made, by the way, the last group I just made, are new. 
They have been added to the calendar since I made the requests last 
week. This is going to continue. I am going to do my very best job at 
impersonating the tenacity of my colleague from Oklahoma. I am going to 
do my very best job of being a dog with a bone on secret holds. I am 
not going to give up. I am going to be out here every week, as often as 
I need to be out here. I am going to get as many colleagues to help me. 
We now have everybody on this side on board with the exception of 
Senator Byrd, and I am optimistic we will get Senator Byrd. I am 
hopeful the next time I will have some of my colleagues on the other 
side of the aisle, who agree secret holds are wrong, to help make these 
requests.
  The ones I just made were new. As notice to the Senators who may be 
holding those, they were not made last week. So I urge everyone to 
check the list and, if they have a hold on them, to notify Leader 
McConnell and let Leader McConnell know what their objection is and 
comply with the law they voted on.
  Let me make these last ones. I wanted the record to be clear, these 
are the first ones we made that anybody voiced opposition to--anybody.
  Mr. President, I ask unanimous consent the Senate proceed to 
executive session for the purpose of consideration of Calendar No. 552, 
Jane Branstetter Stranch, to be United States Circuit Judge for the 
Sixth Circuit; the nomination be confirmed, the motions to reconsider 
be considered made and laid on the table, no further motions be in 
order, the President be immediately notified of the Senate's action, 
and any statements relating to the nominee be printed at the 
appropriate place in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. I might note for the record that this nominee was 
voted out of committee by a vote of 15 to 4, with three Republican 
Senators supporting her in committee and four Republican Senators 
opposing her in the committee. The final vote was 15 to 4.
  I ask unanimous consent the Senate proceed to executive session for 
the purpose of consideration of Calendar No. 588, Philip Coyle, to be 
Associate Director of the Office of Science and Technology; that the 
nomination be confirmed, the motions to reconsidered be considered made 
and laid upon the table, that no further motions be in order, the 
President be immediately notified of the Senate's action, and that any 
statements relating to the nominee be printed at the appropriate place 
in the Record.
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. On that nominee, the vote out of committee was 19 to 
6--19 to 6. Five Republican colleagues supported this nominee and five 
Republican Senators opposed this nominee. So it was a 5-to-5 split of 
the Republicans on the committee to that nominee.
  I ask unanimous consent the Senate proceed to executive session for 
purpose of consideration of Calendar No. 703, Benita Y. Pearson, to be 
United States District Judge for the Northern District of Ohio; that 
the nomination be confirmed, the motion to reconsider be considered 
made and laid on the table, no further motions be in order, the 
President be immediately notified of the Senate's action, and that any 
statements relating to the nominee be printed at the appropriate place 
in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. I object.
  The PRESIDING OFFICER. Objection is heard.
  I might note this was a voice vote in committee and Senator Sessions 
did raise concerns in committee. So there was not a tally vote. No one 
requested a rollcall vote on the nominee. It was noncontroversial 
enough that no one wanted to go on record with a rollcall vote, but we 
wanted to be very transparent and did want to indicate for the record 
that Senator Sessions did raise concerns in committee about this 
nominee.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session and consider Calendar No. 747, Ari Ne'eman, to be a 
member of the National Council on Disability. I ask unanimous consent 
that the nomination be confirmed, the motion to reconsider be 
considered made and laid upon the table, no further motions be in 
order, and the President be immediately notified of the Senate's 
action, and that any statements be printed in the Record.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. COBURN. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mrs. McCASKILL. I should note that this is a nominee who--once again, 
it was a voice vote. Senator Coburn did indicate some concerns with 
this nominee at the committee level.
  Mr. COBURN. I have an appointment with the gentleman to have a 
discussion.
  Mrs. McCASKILL. We have now gone through the entire list, with the 
exception of about 10 judicial nominees on whom Senator Whitehouse will 
be making the requests. I was hopeful that this week we would know who 
is holding those folks. We still do not know.
  If I might make a suggestion, I am not confident it will be accepted, 
but if the leadership of the Republican caucus wants to hold these 
nominees, Senator McConnell can put his name on all of them. Then the 
people of America will know Senator McConnell is holding them and they 
will see him as the leader of the Republicans and they can judge 
accordingly. But if Senator McConnell does not have objections to them 
and is not willing to put his name on them, then the people who have 
the objections should put their names on the holds. We are going to 
break this bad habit.
  I do want to make a note that there were four judges I made requests 
on who inadvertently got on the list. They have been confirmed. We will 
provide for the record those four names so they can be appropriately 
noted. So instead of doing 69 today, we are only doing 65.
  I thank the Senate for its indulgence. I thank Senator Coburn for 
remaining on the Senate floor. As I said, Senator Whitehouse will be 
back to make a few more motions. Let's break a bad habit that the 
people of this country do not agree with.

[[Page S3397]]

  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I ask unanimous consent to speak for 
approximately 15 minutes as in morning business for myself.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                         Tribute to Jane Treat

  Mr. COBURN. Mr. President, I pay tribute to one of my staff members 
today. She recently left. She had a child and is being a mom and a 
civic activist. But she was a trusted adviser and, more than that, a 
dedicated patriot.
  Jane Treat, who has been with me since the earliest parts of 2004, is 
leaving to become a full-time mother. It is hard to lose her. But I 
understand the attraction as well as the commitment for a much more 
important job. She first came to work for me as a volunteer, fresh off 
her studies at Patrick Henry College.
  Since that time she has played a key role on my Judiciary Committee 
through many intense legislative battles. She spent many long days in 
the Dirksen Building poring through briefing materials, preparing 
background notes for me, and negotiating on my behalf with other 
offices.
  She was there during the Roberts and Alito hearings. For a time she 
also served as my interim chief counsel on the committee, since I had 
no attorneys and she was a nonattorney as well, which was a rare 
occasion. Her dedication has never wavered. The fact is, she worked the 
day she delivered her first child. She prepared negotiations that day 
for a bill that threatened the second amendment of the Constitution and 
how it interacted with our veterans. We prevailed that day in no small 
part because of her efforts. One would be hard pressed to find anyone 
who cherishes the Constitution and who knows its principles as well as 
Jane Treat.
  My legislative director jokes:

       Although Jane did not actually write the Constitution, she 
     is its fiercest defender.

  I would have to agree.
  For the past 2 years, and after the birth of her daughter, Jane has 
managed a correspondence team that works in my office, ensuring that 
every letter that reached my desk was treated with the utmost concern 
and professionalism. She cared for each constituent as if it were 
written to a close relative or a neighbor. In that, she has done a 
terrific job.
  There is one last quality of Jane that I commend to everyone in the 
room, and that is courage. Jane has a keen sense of right and wrong and 
will not allow an injustice to stand, whether it is policy related or 
simply human. She fights for everybody.
  When she disagrees--I am laughing about this because when she 
disagreed with me, I was always sure I would hear about it later. She 
would come to the office and knock on the door, and say: Now we need to 
have a talk. You were wrong.
  Of course, I would remind her that she was not elected and I was and 
there is some interpretation to the Constitution.
  But the quality of having the courage to confront on things that are 
strongly held beliefs is a great quality that built our country, and 
she distinguishes herself in it. That is in contrast to what usually 
happens in this town where we avoid difficult issues rather than 
confront them.
  True to her principles, she will turn her attention toward her new 
community in Broken Arrow, OK, where she will be a full-time mom. It 
will not be long, for sure, before she is volunteering again for a 
cause close to her heart.
  Jane, we appreciate you. We thank you for your service, and we thank 
you for the modeling of your behavior.


                              Secret Holds

  Now, I just want to spend a few minutes because what we have just 
gone through is a challenge to a process that has been ongoing for a 
long period of time. The President knows I am in agreement with 
sunshine. As a matter of fact, the President and I created the 
Transparency and Accountability Act so that everything we do gets 
published in terms of what we spend and how we spend it.
  I agree we ought to be forthright with the reasons we hold 
individuals. But let's talk about what a hold is. A hold is saying you 
do not agree to a unanimous-consent request to pass out an individual. 
In other words, what is a hold? What does it really say?
  It really says, first of all, I either may have some very significant 
concerns with this individual or I may want to study this individual 
for a period of time and their record before I agree to it or I may 
want to debate it, the qualifications of the individual.
  I agree on the transparency. But I think it is very important that we 
go back to say--and not necessarily attune the motive. But when I read 
the sign about those who are being held now versus in the Bush 
administration, I am reminded that there were over 100 U.S. attorneys 
and marshals and 50 judges at the same time who were blocked in 
committee so they could not even get to the floor at that time.
  So it depends on where one takes the snapshot. There are lots of 
reasons to not agree to people being confirmed. I have no problem with 
stating my reasons, and I will publish my reasons. I do not have any 
problem even publishing them. But I am not sure that we want to 
necessarily impugn the motives of somebody who takes advantage of that.

  I agree with the Senator from Missouri. I have no problems with 
putting it out in the open. But I did ask the question, and at some 
point in time I think it would be wise for those who think that, that 
we get a parliamentary ruling on what the rule really means because I 
think there is some discussion. I do not doubt that the intent of what 
was passed was exactly what we intended: to put it out there. But I 
think the interpretation or how it may be read is subject to some 
debate, and it would be great to have a Parliamentarian rule on that.
  Finally, I would say, the other side of this issue, which comes back 
to things that are dear to my heart, is the fact that 94 percent of 
everything that passes in this body passes by that very process, 
unanimous consent.
  Unanimous consent says: We will not have debate. We will not have an 
amendment. Things will pass because nobody objects to it passing.
  There is a real disadvantage for our country in that. The 
disadvantage is that the American people never know what we are doing. 
They do not get a hearing. They do not get to hear the policy debates 
on both sides of the issue. It is good that we work some things out, 
but if you watch the floor, what we know is 40 percent of the floor 
time is spent in a quorum call.
  The real issue we are fighting is the moving, is the reason the 
majority leader does not move them, because it takes time to move them. 
Right? That is our problem. Time is our biggest enemy in the Senate. 
But yet that is exactly what our Founders intended. They wanted it to 
be very difficult to change what they had put in place, and they set in 
motion this system that says: We are going to make things thoughtfully, 
under full consideration, with open debate.
  We hear our colleagues all the time say this is the greatest 
deliberative body in the world. It is, but not all of the deliberation 
goes on on the Senate floor. I have no doubt there are abuses on both 
sides. I do not know what the motives are.
  When I hold somebody, I hold them because I think they are either not 
qualified for the job, I think they have a past record that would 
question their character, or I think, in fact, they will do a terrible 
job at the position even if they are qualified. And I have the right, 
as an individual Senator, to say I am not going to support that 
nomination. So I am all for moving and giving Presidents what they 
want, but I am not for doing it without the debate and the 
consideration that needs to be there.
  So I am very supportive of people standing up and saying why they are 
holding up people. Through the courtesy of the Senator from Missouri, 
she did not list one of the judges that I am sure she was going to ask 
unanimous consent on because I was the lone Senator in the Judiciary 
Committee to vote against him. Now, I do not know who is holding him. 
But the fact is, I do not think he is qualified. I want him to be 
debated. I want to have a chance to inform the American people why I 
think he should not be a circuit court judge. And that is my right.
  To say we are just going to move him without a debate, without 
anything but

[[Page S3398]]

a vote, I am not going to do that on people I think are not truly 
qualified. So it is not as straightforward as we think. I think we 
ought to think about how the process is working, that the leaders do 
work on this process. They move a lot of them forward. I understand the 
frustration, and I would be giving the same speech if it was turned 
around. As a matter of fact, I have before.
  So I concur with my colleagues. I think sunlight is a wonderful 
thing. I think there are times where we have the problem, and I will 
give you three specific examples.
  I publish all of my holds. Under the Emmett Till bill, I was 
immediately accused of being a racist. I held the bill because I wanted 
it paid for, but as soon as I put out that I was holding the bill, I 
was accused of being a racist. So there are reasons for people to work 
behind the scenes to be able to work on things, to solve the problem 
with their concerns, without it becoming public, so that you get the 
ultimate action but do not impugn the integrity of people because they 
may not agree.
  So the potential of letting go of all of this idea that we cannot 
negotiate before we come, and that we have to expose everything--what 
happened was the special interest groups attacked me ferociously. I 
ended up becoming best friends with a very significant individual who 
drove that. What has happened today is we still have not done it 
because we did not put the money in to pay for it, which is what I 
wanted. There is still no special provision. There is still no action. 
We passed it 2 years ago.
  Next thing was the Veterans Caregiver Act.
  I hated veterans because I thought we ought to pay for it, and I 
thought it ought to apply to every veteran who had that kind of injury 
who served this country. But yet there was a ferocious attack by the 
interest groups. I am willing to take that heat. That comes with the 
job. But it is certainly not fair to put yourself in that position. I 
understand why other Senators will not stand up and say every time why 
they are holding a bill when we see that kind of attack coming at us.
  Same thing on breast cancer. My sister-in-law, a cousin, all with 
breast cancer, two-time cancer survivor myself, but I hated breast 
cancer patients. You can see why the idea of objecting to a unanimous 
consent and then immediately putting it out there will end up with the 
attack of the special interest groups in this country, because you are 
trying to make something better but your motives are impugned because 
you don't agree with the special interest that is running the bill in 
the first place or, in the case of a nomination, the special interest 
of the administration. They think this is the individual.
  I don't defend. I put it out. I am willing to take that. But I 
understand that is not always the best way to get something 
accomplished, because you end up burning a lot of energy defending 
yourself on something you are totally innocent of in the first place. 
You want a different result for a different reason, but that never gets 
covered.
  This morning has been great. It is interesting that we have had this 
debate. My hope is we will have people who will stand up and speak and 
put up why they believe what they believe, fight for the principles 
they believe in. I think I can defend my principles to the hilt. In 
front of 100 commonsense folks in this country, I can get 85 of them to 
decide with me. I am not afraid to do that. I am willing to be honest 
and transparent and straightforward. But the impugning of motives 
worries me, because it has nothing to do with not wanting President 
Obama to have his people. It has to do, in many instances, with people 
who are truly unqualified or truly are divergent on what their past has 
been versus what they say. Those are legitimate reasons to have debate 
on individuals who are going to serve a function in this government.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, I rise to speak about an issue of great 
importance, the foreclosure crisis, and the fears and frustrations of 
American families who are at risk of losing their homes. Wherever I go 
in Minnesota, people tell me horror stories about losing their homes to 
foreclosure. I am sure the same is true of the Presiding Officer when 
he goes home to Virginia.
  The foreclosure crisis strikes at the heart of the American dream, 
threatening Americans' life savings, family lives, and what they have 
achieved. The President took a big step in addressing this crisis when 
he created the HAMP program which encourages mortgage servicers to 
modify home loans to help people avoid foreclosure. But it is often 
difficult to implement complex programs and HAMP is no exception. When 
HAMP works, it can be great. It can literally save people's homes. But 
too often homeowners who try to use the HAMP program find themselves 
involved in a bureaucratic process that is riddled with errors. These 
are errors that have serious consequences for people's lives.
  Take a woman named Tecora who is a homeowner from south Minneapolis. 
Incidentally, she is someone who actually would have been helped by a 
Consumer Financial Protection Bureau. Several years ago, she bought a 
house with an option ARM or adjustable rate mortgage, where the 
mortgage payments increased dramatically over the years. Someone should 
have told her that the teaser rate her lender offered her might be 
misleading. Someone should have told her she might not be able to 
afford her mortgage payments in the future. But no one did.
  A few years ago, Tecora's payments went up, and she fell behind on 
her mortgage. She entered HAMP hoping to save her home. But 7 months 
later, she was told by her mortgage servicer that her file was closed 
because she had ``declined a final modification of her mortgage.'' Here 
is the only problem: She hadn't. And her mortgage servicer had no 
record of a conversation or correspondence with her. They had simply 
marked the file as closed.
  Tecora is lucky enough to be working with a wonderful nonprofit in 
Minneapolis, Twin Cities Habitat for Humanity. They are helping her to 
fight this mistake. But they have been working on this since March, and 
the government resources that are available are not very helpful. In 
the meantime, Tecora is constantly worried that she may lose her home 
because her mortgage servicer made a mistake.
  Or take Barbara, a homeowner from Minneapolis who fell behind on her 
mortgage payments because her husband was laid off and her son got 
cancer, racking up huge medical bills. Talk about someone who might 
lose their home through no fault of her own. Her mortgage servicer 
claimed she was not eligible for final mortgage modification, using 
incorrect information about her financial situation. When she pointed 
out there was a problem, her servicer told her there was nothing they 
could do because ``once you have been denied for HAMP, you can't be 
eligible again.''
  Barbara is fighting this, but someone from the government should have 
her back.
  Yesterday I filed an amendment with Senator Snowe and seven other 
colleagues to fix the HAMP appeals process. People at risk of losing 
their homes are going through enough already. They should not be stuck 
fighting over mistakes with their servicers without a guarantee that 
someone will be on their side. Our amendment would create an office of 
the homeowner advocate, modeled after the very successful Office of the 
Taxpayer Advocate within the IRS. The advocate's office would be an 
independent unit within Treasury, charged with helping homeowners, 
their housing lawyers, and their housing counselors to resolve problems 
with HAMP. The office would be temporary, lasting only as long as HAMP 
does. But while it exists, it would have a lot of authority to help 
homeowners and families around the country. For the first time, 
homeowners would be able to call an office in the government and know 
that someone with the authority to fix a problem is actually fighting 
for them.
  Staff of this new advocate's office would be able to make sure that 
servicers obey the rules of HAMP or risk suffering consequences. 
Perhaps more importantly, opening a case with the advocate's office 
would delay a servicer's ability to sell a person's house, giving the 
office time to resolve the problem before it is too late. The director 
of the advocate's office would be someone who can truly fight for the 
rights of homeowners. He or she must have a background as an advocate 
for

[[Page S3399]]

homeowners and cannot have worked for either a mortgage servicer or the 
Treasury Department in the last 4 years. The director will also be able 
to help those of us in Congress understand what is going on in HAMP. 
Because the office can collect data about the kinds of complaints and 
appeals that come in, the director will be in a good place to know what 
kinds of changes, both administrative and legislative, need to be made 
to the program and can describe them to the Treasury Department and to 
Congress.
  Once a year the director will issue a formal report laying out in 
detail all the problems people have had with HAMP and how they can be 
resolved and the way such problems could be prevented or better 
resolved in the future.

  I know many of my colleagues on both sides of the aisle are 
understandably worried about the deficit. I want to be clear about one 
thing: This amendment includes no new appropriations. The advocate's 
office will be funded with existing money that is set aside for HAMP 
administrative costs.
  I am pleased to say that our amendment is supported by the Treasury 
Department itself. In fact, yesterday it was featured on the White 
House's blog as one of ``The Good Guys,'' 10 simple, straightforward 
amendments that would strengthen the already good Wall Street reform 
bill. It is a good guy, this thing.
  My amendment is also supported by a large number of groups, including 
Americans for Financial Reform, the Center for Responsible Lending, 
National Consumer Law Center, the Leadership Conference on Civil and 
Human Rights, Consumers Union, Consumer Federation of America, the 
Service Employees International Union, and National Council of La Raza. 
I am particularly pleased to say that the amendment is also supported 
by several of the most important housing groups in my home State of 
Minnesota.
  The idea behind the advocate's office is simple, but the impact could 
be huge for all the people whom we are here to represent. Please join 
me in helping to ensure that HAMP actually works for families around 
the country. We owe it to Tecora and Barbara and to all the working 
families in our States and around the country.
  I also rise to talk briefly about another amendment I am proposing to 
reform the credit rating industry. This industry is fraught with bad 
practices and perverse incentives. These incentives have produced 
inflated ratings which resulted in dangerous junk bonds getting AAA 
ratings and thus being eligible for public pension funds. In fact, the 
court ruled last week that a suit on this issue brought by CalPERS, the 
California public employee pension system, can now move forward. 
CalPERS represents nearly 1.5 million California public employees, 
including thousands of teachers and public safety officers. CalPERS has 
brought suit against the three biggest credit rating agencies--Moody's, 
Standard and Poor's, and Fitch. CalPERS states that the big three 
provided ``wildly inaccurate and unreasonably high'' ratings to 
products that ended up in their investment fund. When these structured 
finance products, including securitized subprime mortgages, tanked, 
CalPERS pension fund lost almost $1 billion. That is a loss of $1 
billion for California teachers, police officers, firefighters, and 
public servants from their health benefits and retirement plans.
  CalPERS is not the only group to take action. Private suits have been 
filed in New York and the attorneys general of Connecticut and Ohio 
have brought suit against the rating agencies on behalf of the people 
of their States. Ohio Attorney General Richard Cordray filed suit last 
fall on behalf of five Ohio public employee retirement and pension 
funds. Cordray said:

       The rating agencies assured our employee public pension 
     funds that many of these mortgage-backed securities had the 
     highest ratings and the lowest risk. But they sold their 
     professional objectivity and integrity to the highest bidder. 
     The rating agencies' total disregard for the life's work of 
     ordinary Ohioans caused the collapse of our housing and 
     credit markets and is at the heart of what is wrong with Wall 
     Street today. The inflated ratings cost middle class families 
     in Ohio nearly half a billion dollars in retirement funds.

  But this problem is not limited to California and Ohio and New York. 
It has affected my home State of Minnesota. It has affected the 
Presiding Officer's home State of Virginia. It has affected every State 
in this Nation.
  By now, I hope colleagues have heard the details of my amendment to 
reform the credit rating system. It would limit the pay-to-play model 
currently used in the credit rating industry. The amendment calls for 
an independent board to develop an assignment system to match the 
issuers of complex financial products with a qualified rating agency to 
provide the product's initial rating. This system would apply only to 
initial ratings. Issuers could seek a second or third rating from 
whichever credit rater they prefer. But the initial rating would put a 
check on any subsequent rater which would be disinclined to provide an 
inflated pie-in-the-sky rating to a junk product.
  By providing for an assignment process, the conflicts of interest 
driving the system will be eliminated, and the assignment process will 
allow smaller rating agencies that are performing well to get more 
business and rating agencies performing poorly to get less. This will 
hold rating agencies accountable for their work. It will incentivize 
accuracy and increase competition.

  I know many of you agree with me, and the list of cosponsors on this 
amendment is growing. Most recently, I was particularly pleased to have 
Senator Wicker join our effort. Of course, I am deeply grateful for the 
leadership of Senators Schumer and Nelson and the support of Senators 
Whitehouse, Brown, Murray, Bingaman, Merkley, Lautenberg, Shaheen, and 
Casey. Restoring integrity to the credit rating system will provide 
real protection for working Americans.
  Working people such as Tecora and Barbara are still reeling from the 
effects of this recession. Our unemployment rate still hangs near 10 
percent. Working Americans together have lost nearly $4 trillion in the 
value of their homes and about $3 trillion in the loss of their 
retirement savings during this economic crisis.
  The Wall Street reform bill before us goes a long way to prevent this 
from ever happening again. But there are a few places where it can be 
improved. I hope my amendment creating the Office of the Homeowner 
Advocate will help struggling Americans keep their homes. My amendment 
calling for an overhaul of the credit rating agency industry will 
protect millions of Americans from unprecedented losses in their 
supposedly safe retirement investments. I ask my colleagues for their 
support on both of these critical amendments.
  Mr. President, I yield the floor.
  Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to talk about 
three amendments pending on the legislation to reform Wall Street. I 
begin by noting the spirit of bipartisanship which is present on this 
issue, and I think it is a very important sign. There is too little 
bipartisanship in this body, and from my travels through my State and 
elsewhere, I believe the American people are fed up--really sick and 
tired--with the kind of bickering which is present in the Senate. It 
took a lot of public pressure and an obvious, great, and serious 
problem to bring about this bipartisanship. But it is very important 
that it be present in our efforts to reform Wall Street, and I hope it 
will be a sign of things to come.
  Some time ago, I introduced a bill which would change the decision of 
the Supreme Court of the United States which held that aiders and 
abettors were not liable under the Securities Act. I have taken that 
bill and have submitted it as an amendment with quite a number of 
cosponsors. It is amendment No. 3776, to allow suits against aiders and 
abettors of Wall Street fraud, cosponsored by Senators Reed, Kaufman, 
Durbin, Harkin, Leahy, Levin, Menendez, Whitehouse, Franken, Feingold, 
and Merkley.
  Prior to the decision of the Supreme Court of the United States in 
Central Bank, back in 1994, supplemented by

[[Page S3400]]

the Stoneridge Investment Partners decision, the law was that aiders 
and abettors were civilly liable for damages. It is a very odd 
circumstance that aiders and abettors remain liable under the criminal 
law but are not liable under civil law, and this amendment would 
reinstate the civil liability for aiders and abettors. It is narrowly 
drawn to apply only to individuals who knowingly provide substantial 
assistance to the primary violator. But where you have a stock offering 
and you have many parties who are working with the principal offerer, 
the offerer can only carry out the fraud with the assistance of quite a 
number of people.
  This amendment will reinstate what had been the law prior to the 
Supreme Court decisions I just mentioned. I think it is worth noting 
that Senator Shelby had introduced similar legislation back in 2002.
  The second amendment I wish to discuss briefly is amendment No. 3794, 
submitted by Senators Leahy, Grassley, Kaufman, and myself, which would 
direct the Sentencing Commission to review and amend the sentencing 
guidelines for securities and financial institutions which engage in 
fraud, and the guidelines should reflect the intent of Congress that 
penalties for those offenses should be increased.
  Earlier this week, on Tuesday, the criminal law subcommittee held a 
hearing attended by quite a number of very experienced people in the 
securities field and in criminology. The predominant view was, where 
you have a fine imposed, it is not a deterrent at all. It is 
insufficient as punishment for the perpetrator, but it is insufficient 
for the gravity of the offense. A fine is simply incorporated as part 
of the cost of doing business, passed on to consumers.
  The provision for a jail sentence would be an effective deterrent. I 
base my own view on this subject from my experience as district 
attorney of Philadelphia, where I convicted many white-collar criminals 
and corrupt political figures, such as the chairman of the Philadelphia 
Housing Authority, the deputy commissioner of licenses and inspection, 
the stadium coordinator--to name only a few.
  If the perpetrators of fraud know they are going to be going to jail, 
it will have quite a different impact on their own conduct. One of the 
witnesses testified to a celebrated case where an individual was fined 
$50 million and was willing to pay that but said, simultaneously with 
the payment of the fine, if he had been charged criminally, he would 
have fought it tooth and nail because of the concern about going to 
jail.
  The third amendment I wish to discuss is amendment No. 3806, which 
provides that there should be a fiduciary duty for broker-dealers to 
avoid conflicts of interest in investments and make such violations a 
Federal crime.
  In the SEC complaint against Goldman Sachs, the gravamen was--and I 
acknowledge and am explicit that these are only allegations--that the 
package of mortgages was put together and then was broken up into 
securities, and an individual who was involved in putting the package 
together, knowing the details, immediately hedged and sold short. That 
means he bet against those securities. He thought they would go down.
  It is my view that the people who put that transaction together have 
a fiduciary duty to tell the investors--even institutional investors--
as to exactly what is going on; that they should know somebody is 
simultaneously saying their professional judgment is that the value is 
going to go down.


          Don't Give Miranda Warnings to Suspected Terrorists

  Mr. President, recently Attorney General Holder testified before the 
Judiciary Committee in our periodic oversight proceedings and testified 
that it was the policy of the Department of Justice to handle the 
interrogation of suspects in terrorism cases on a case-by-case 
basis. It is my view, which I expressed at the time I questioned 
Attorney General Holder, that that ought not to be the policy of the 
Department of Justice; that the policy of the Department of Justice 
ought to be not to give Miranda warnings to people who are suspected of 
terrorism.

  The Miranda warnings coming out of the decision handed down by the 
Supreme Court of the United States in 1966--and I recall it well. I was 
in my first year as district attorney in Philadelphia at the time, and 
it was quite a jolt to the criminal justice system that my office 
prepared the details to have a card for the police officers by the end 
of the week, because they interrogate a great many suspects. But the 
Miranda warnings require the interrogator to advise an individual that 
he has the right to remain silent; secondly, that anything he says can 
and will be used against him; third, that he has the right to an 
attorney, and that if he wants to stop answering questions at any time 
in the sequence, he can.
  When a suspect in a terrorism case is being questioned, there are 
issues which are much more important than the conviction of that 
individual. The important thing is to gain information, find out who 
may be involved, and gather intelligence to prevent future acts of 
terrorists. I saw this in some detail during my tenure as chairman of 
the Intelligence Committee back in the 104th Congress. The recent 
apprehension of the Times Square bomber, who had the bomb positioned to 
blow up in Times Square and injure many people is illustrative, and the 
information he gave without Miranda warnings. He was Mirandized, as I 
understand it from the media reports at some point, but the information 
he has given has been very valuable in linking possible coconspirators 
to the Taliban in Pakistan.
  It is not widely understood, but the only consequence of not giving 
Miranda warnings is that any statements made by the suspect may not be 
introduced in a criminal trial in a U.S. court. But in the case of the 
Times Square bomber, as in the case of the Christmas bomber, there was 
sufficient evidence to move ahead with the convictions. But even if 
that were not so, the value of getting intelligence information vastly 
outweighs the interests of convicting the individual in that specific 
case. Even in that case, there is the potential alternative of being 
tried by a military commission where the Miranda rules do not apply. So 
it is my strong recommendation to the Department of Justice, as I had 
discussed it with Attorney General Holder, as I have communicated it to 
the FBI Director Bob Mueller, that the policy be changed so that it is 
not optional with an interrogator to make a decision on a case-by-case 
basis because the interrogator may make a mistake and decide that this 
is a case where the Miranda warnings ought to be given, and that may 
stop the individual from providing information.
  Some of the Senators at our Judiciary Committee hearing were of the 
opinion that the chances of getting information were enhanced by giving 
the Miranda warnings, and I think that is not only counterintuitive--
not what you would expect--but contrary to experience; that the 
likelihood of a person saying he won't talk if he is advised that he 
has a constitutional right not to, and then advised that he has a right 
to counsel, and then advised he will have counsel provided if he 
doesn't have counsel of his own, and once counsel are in the case, 
their obligation is to protect the interests of their client. That 
decision more likely than not will be to remain silent so the 
individual is not harmed with a potential criminal prosecution. I think 
the policy of the Department of Justice ought to be to have an absolute 
rule: No Miranda warnings in cases of persons suspected of terrorism.
  There is some suggestion of legislation on this point. I think that 
raises constitutional issues of separation of power, and what ought to 
be done is the policy ought to be established now by the Department as 
an absolute rule not to give Miranda warnings to those suspected of 
terrorism.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Franken). The Senator from Rhode Island.
  Mr. REED. Mr. President, I take the floor today to talk about an 
amendment which I have been working on with Senator Scott Brown of 
Massachusetts. I am very fortunate to have Senator Brown's help, 
insight, and advice because of his extensive experience not only as a 
public servant but as a member of the Massachusetts National Guard. As 
a lawyer, as a company commander, and as someone who has served in 
various capacities within the Guard, Scott Brown knows from firsthand 
experience that young troops

[[Page S3401]]

particularly, men and women of our Armed Forces, can be exploited by 
unscrupulous business practices, and that it is essential when we 
create a Consumer Financial Protection Agency that there be a 
particular and explicit liaison for military issues.
  Many of these young men and women are not in their home towns. In the 
context of today's operations, they are returning from duty in Iraq or 
Afghanistan. They have not been spending a lot of money in Afghanistan 
because there is not a lot to buy, and they come home and they want to 
buy a new car or they want to do something, and they can be exploited. 
That exploitation is particularly hard to bear when it is at the 
expense of a young person who is risking their life in service to his 
country.
  Senator Brown and I are working on a joint amendment which would 
create an office of military liaison within the Consumer Financial 
Protection Bureau. The office would educate and empower servicemembers 
and their families to make better and more informed decisions, and it 
would work closely with existing personnel with the Department of 
Defense and the particular services so there is not only a place to go 
with a complaint, but also proactive information to avoid some of these 
missteps.
  It would help monitor and respond to complaints by servicemembers and 
their families, and it would also coordinate efforts among Federal and 
State agencies, and that I think is absolutely critical. You have local 
insurance regulators, you have local attorneys general, you have the 
Better Business Bureau, you have the Department of Defense offices. We 
have all of these things, but often, particularly for a young soldier, 
where to go and get comprehensive one-stop help is hard to figure out. 
Many times they will approach an office and they will be told, well, 
you have a good case but we don't do that, and they are sent away. 
Given the time and commitment they have to devote to their service, 
this is another burden they have to bear, and we hope we can reduce 
this burden.
  Senator Brown and I are working to develop the details of this 
office. I think it is absolutely necessary.
  We have looked at--and I have been looking at this problem for years 
now, and communicating with the Department of Defense, Secretary Gates, 
and others at the Department of the Treasury about how to protect 
better our service men and women. We think this initiative will help us 
in that regard.
  The Department of Defense and the Government Accountability Office 
have found that servicemembers are particularly vulnerable to expensive 
and often abusive products. I will take off my Senate hat and put on my 
old company commander hat in a paratrooper company. You have 18- and 
19-year-old men and women. They receive an enlistment bonus of 
sometimes $20,000. They don't have a home. They have bought the most 
expensive stereo equipment they already can buy. What they are looking 
for is something they can call their own, and usually that is a big, 
expensive car or truck. When they walk in the door, I think some of 
these dealers are aware of their vulnerability: lack of information, 
the short time they are back from an overseas deployment, the time 
before they are moving on to a deployment. So they are vulnerable. They 
are also vulnerable in another sense, not just with respect to products 
but there are so many families now where one of the spouses is in the 
military and the other spouse is in the military, and that other spouse 
is deployed overseas. So you have a member of the U.S. military with 
children, with a father or mother overseas, and they are struggling. 
Even with the pay they receive at the end of the month, it is a tough 
go. They are looking for good deals. There are too many people out 
there who are looking for people who are vulnerable to good deals. That 
is the reality today in the military. It is a different military force 
in terms of Operation TEMPO where I served where you were rather 
stabilized in one area for 3 years at least and then moved to another. 
Now you have families where the husband returns and 3 months later the 
wife deploys. That is a huge burden on the children, but it creates a 
kind of uncertainty and turmoil where financial problems are much more 
likely to occur. That is another factor of vulnerability, and we have 
to recognize that.
  We also understand too that some of the more unscrupulous operators 
out there know these soldiers are getting steady paychecks, but they 
might not last all the way through the month. So they are a good sort 
of subject for some of these ploys. They have steady pay. You can go 
after them legally to try to attempt to do something, subject to the 
Servicemembers Civil Service Relief Act and all the other laws we try 
to protect them with. This is a target population in some respects, I 
hesitate to say, but unfortunately I think it is true.
  The Under Secretary of Defense Clifford Stanley, who has been charged 
to be the champion for quality of life for protecting service families, 
has stated recently: ``The personal financial readiness of our troops 
and families equates to mission readiness.'' He reports that 72 percent 
of military financial counselors surveyed--these are the individuals at 
DOT, all the personnel whose job is to talk to troops about their well-
being--72 percent surveyed had counseled servicemembers on auto lending 
abuses in the past 6 months. So this is not an isolated incident in one 
part of the country; this is across the country, across the Department 
of Defense, and that is a significant situation.
  It is not just auto abuses. Payday loans, for example. As I said, 
anybody who is working around a military base knows that come the end 
of the month, that paycheck will probably be deposited into the 
checking account, so that is a good bet to lend money to. But the 
interest rates they are lending at, sometimes the APR is up to 800 to 
900 percent. That is staggering. But they are doing it, and they are 
doing it to young soldiers who have their heads, some of them, looking 
forward to a deployment. Some of them have not even gotten over the 
last deployment, and we have to be conscious of that.
  Rent-to-own loans. This is where you go to a shop and you say I would 
like to rent a TV for 30 days because you am deploying in 45 days. Then 
you don't deploy so you keep it, and in some cases you end up paying 
two to three times the retail price of the appliance. At least 
individual soldiers have to be informed of those practices and know 
about it. We have to be sure they are getting that information.
  Refund anticipation loan is a classic. You are going to get your tax 
refund and if you let us give you a loan right now, we will take that 
tax refund. These turn out in some cases to have APRs reaching as high 
as 250 percent as you are borrowing against your prospective tax 
refund.
  Automobile title pawns. Short-term loans are given to soldiers--and 
again, as a company commander, I never--well, let me see. It was more 
common to see a soldier in debt than to see a soldier investing in 
bonds and safe investments. It is the nature of being 18 years old, 
with some money and the feeling that you have to spend it. But 
automobile title pawns, short-term loans with very high interest rates 
to give the title of their car to the lender as collateral. Again, the 
whole notion to some youngsters in the military about what is a title, 
what is collateral, when they are looking at $2,000 or $3,000 on the 
table, that is only details. But when the time comes to pay the loan, 
they don't, and they lose their $25,000, $30,000 car or truck, and then 
it is a reality.
  I think we have to be conscious of this. All of this is compelling in 
the abstract. It becomes even more compelling when you listen to the 
stories of individual soldiers.
  Three years ago, Army SPC Jennifer Howard bought a car while she was 
stationed at Fort Riley, KS. As it turns out, the dealership that 
arranged her financing charged her for features on the car that she 
never got, such as a Moon roof and alloy wheels. You may say to 
yourself, how could anybody be so gullible? If you are a young soldier 
who just got back or is getting ready to go and you look at a shiny car 
and you know you didn't order the alloy wheels and Moon roof but you 
are not going to take time checking the manifest to see what you are 
charged with--that has been my experience. A dealer should know that, 
but apparently, in this case, they charged her anyway.
  She says:

       The dealership knows that we're busy, we're tired. We don't 
     take the time, because

[[Page S3402]]

     we don't have a lot of time. It's like get in, get out, do 
     what we got to do. If we get taken advantage of later we'll 
     deal with it then.

  SGT Diann Traina bought her car from a dealership that didn't 
actually own it. When it was repossessed, she was stuck with a $10,000 
bill. She said:

       Trying to concentrate on my job and the mission in Iraq and 
     then trying to figure out stuff that's going on at home, it 
     was really stressful.

  She goes on to say:

       If there's some type of regulation or agency that's out 
     there to back you up, you know who to go to to complain about 
     somebody if you're experiencing a problem.

  That is what we want to do--coordinate these activities through a 
military liaison at a consumer financial protection agency. We want to 
do that because it is the right thing to do and because if we cannot 
protect the men and women who are protecting us, then we have to ask 
seriously whether we are doing our job. I know they are doing their 
job.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Mr. President, I understand that today is set aside 
just for debate on amendments and on the bill. I certainly understand 
that, and I, accordingly, will not call up my amendment today.
  I do want to talk about an amendment I have filed--amendment No. 
3892--so that I can put my colleagues on notice about this amendment 
and the importance of it. This amendment has a straightforward goal. It 
is to protect the existing legal structures that ensure that 
electricity and natural gas rates consumers pay will continue to be 
just and reasonable and free from manipulation.
  I am joined in the amendment by a strong bipartisan group of 
cosponsors, Senators who, like me, have worked hard over the years to 
strengthen consumer protections in this area of electricity and natural 
gas, who have worked cooperatively with me and others on the Energy 
Policy Act of 2005 to close the so-called Enron loophole.
  I want to particularly express my appreciation to Senator Murkowski, 
who is ranking member on the Energy Committee that I am privileged to 
chair; Senator Reid of Nevada, who is cosponsoring the amendment, and 
Senators Brownback, Cantwell, Cornyn, Wyden, and Corker. All of these 
Senators have cosponsored the amendment we filed last night. I am 
grateful for their support and the hard work of their staffs in 
developing the amendment.
  The bill currently before the Senate has several important 
objectives. It improves accountability in the financial system. It 
provides much needed protections for American consumers of financial 
services. It also expands the scope of the Commodity Futures Trading 
Commission's authority with respect to regulating commodity markets. I 
support all of these objectives. I am very glad to see them included in 
this bill.
  However, I believe a small but vital addition to the bill is needed 
to ensure that America's consumers of energy products are adequately 
protected, and that is the issue the amendment I am discussing 
addresses.
  We need to be sure that both under existing law and under the 
expanded authority being given to the Commodity Futures Trading 
Commission in this bill, there is no compromise of the role the Federal 
Energy Regulatory Commission is expected to perform and the role our 
State public utility commissions are expected to perform to regulate 
rates and terms with respect to electricity and natural gas markets.
  Without this amendment, the bill before us could inadvertently 
prevent those agencies from exercising their authority and their 
responsibility to ensure just and reasonable rates for electricity and 
natural gas consumers. Without this amendment, the Federal Energy 
Regulatory Commission's ability to exercise antimanipulation authority 
could be called into question. These are enforcement tools to protect 
consumers. Congress granted them to the FERC in 2005 as a direct 
response to Enron's manipulation of markets in California and the West.
  The amendment offers a solution that I believe is consistent with the 
philosophy of consumer protection that underlies other parts of the 
bill before us. The effect is simple: The amendment preserves the 
authority of both FERC and the States to ensure that electricity and 
natural gas rates are just and reasonable. Direct examination of prices 
is central to each of those agency's mission. In FERC's case, this 
authority is longstanding; it was established over 70 years ago.
  Without this amendment, a critical check on energy prices may be 
lost. That is true for two connected reasons:
  First, the CFTC's so-called ``exclusive jurisdiction,'' which is in 
the Commodity Exchange Act, could be interpreted to operate to prevent 
FERC and State public utility commissions from acting where their 
jurisdictions intersect the Commodity Futures Trading Commission's 
jurisdiction.
  Second, the CFTC's regulatory mission differs significantly from that 
of the FERC and from that of the State public utility commissions. The 
CFTC's mission is to protect market participants and to promote fair 
and orderly trading on those markets. It doesn't directly examine 
commodity prices in these markets. It does not consider the 
reasonableness of rates charged to consumers.
  While properly functioning futures markets are important, the 
Commodity Futures Trading Commission cannot and does not have the 
authority or responsibility to provide protections that are provided by 
the Federal Energy Regulatory Commission and the State public utility 
commissions under their respective authority.
  As I have said, I support the bill generally. I believe it is 
essential to ensuring that consumers are protected. However, both I and 
my cosponsors on the amendment strongly believe it is necessary to 
preserve existing consumer protections that may otherwise be lost.
  It is a simple, straightforward, tailored amendment that does not 
create loopholes in jurisdiction. It does nothing to diminish the 
ability of the CFTC to regulate commodity exchanges such as NYMEX or to 
require public disclosure of swaps or any other authority they have to 
regulate the mechanics of commodity markets, including those that trade 
energy commodities.
  Once again, I thank my cosponsors for working to develop this 
amendment. I urge my colleagues to support the amendment. At the 
appropriate time, I will seek to call the amendment up and have it 
voted on by the Senate.
  Seeing no other Senator seeking recognition, I suggest the absence of 
a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Emergency Supplemental Funding

  Mr. WHITEHOUSE. Mr. President, I wish to speak on a couple of 
subjects. The first is to express my regret that the supplemental 
funding to help Rhode Island in the wake of its unprecedented, historic 
flooding was stopped on the floor today by a Republican objection. I 
would have hoped that when a true emergency happened in somebody's home 
State, with a Presidential disaster declaration, and Senators were 
working to remedy that, the traditional deference for emergency 
spending would be appropriate.
  Senator Reed, as the senior Senator and a member of the 
Appropriations Committee, is the leader on this issue. He and I will 
continue to work to get this done for Rhode Island. It is regrettable 
that conditions on the Senate floor are such that emergency spending--
while we still have people out of their homes, flood damage, 
unprecedented in Rhode Island's history--is not something on which we 
simply could have agreed.
  There are floods in other States, and I assume similar rules will 
apply when they come forward.


                       Exorbitant Interest Rates

  The second issue I wish to mention, since I see the distinguished 
chairman of the Banking Committee, is I continue to hope for and argue 
for the amendment I have proposed that will do something very helpful 
for something that bedevils constituents in every single one of our 
States, which is exorbitant, ridiculous interest rates.
  Every day in the mail in every one of our States people are opening 
offerings from the big credit card companies;

[[Page S3403]]

proposals that, particularly when certain tricks or traps are 
triggered, kick them into 30 percent or higher interest rates.
  It was not too long ago in all of our lifetimes that a solicitation 
such as that would have been a matter to bring to the attention of the 
authorities in our States because it would have been illegal under 
State law to charge that kind of reprehensible interest rate.
  We as a Congress never decided we were going to overrule all those 
State laws; State laws that have existed since the founding of the 
Republic, a tradition of interest rate regulation that in our culture 
goes back to the Code of Hammurabi, goes back to Roman law. We never 
decided as a Congress: Oh, we are not going to allow States to protect 
their consumers any longer, protect their citizens any longer against 
exorbitant interest rates.
  It happened in a strange, backhanded, almost inadvertent way. It 
began with a statute in 1863 that said a transaction was governed by 
law based on where it was located. In 1863, there was not a lot of 
interstate banking. So there did not need to be a lot of discussion 
about what ``located'' meant. But by 1978, interstate banking was 
fairly common. The question came to the Supreme Court, what that word 
``located'' in that Civil War statute meant.
  In a very unheralded decision at the time, a decision that did not 
appear to be of any significant consequence, the U.S. Supreme Court 
said: If you have a bank located in one State and a consumer located in 
another State, the law is going to be the State of the bank. It had to 
be one or the other. They chose the State of the bank. The Marquette 
decision it was called. It involved the Presiding Officer's State, 
Minnesota. The decision said it is going to be the bank.
  It did not seem very controversial. Why not? The problem was that the 
banking industry began to figure out that there was a loophole. They 
began to figure out if they could go to the States with the worst 
consumer protection laws in the country or if they could go to a 
friendly Governor and say: Hey, I will make you a deal; you clear out 
your consumer protection laws, and we will come and we will locate a 
big, high-rise business full of call center people in your State--from 
that State, they could operate nationally.
  Because of this funny 1978 decision from an 1863 law, bit by bit all 
of the constitutional Federalist States rights protections, where 
sovereign States have the right to protect their own citizens against 
outrageous and exorbitant interest rates, became ineffectual. We never 
decided that as a Congress. If we had that debate, I will venture that 
it would have gone the other way. It would be preposterous for us as a 
Congress to look out across America and say: OK, we are going to pass a 
law that says that the worst State for consumer protection regulation 
is going to be the State that governs. Obviously, it would create a 
race to the bottom. Obviously, it would completely disenfranchise home 
States trying to protect their own citizens from States a country away 
that, frankly, couldn't care less.
  A Rhode Island consumer being victimized is not the problem of the 
State of South Dakota. It just is not. We would never have passed that 
law. It would have been an outrageous law to have passed. Yet because 
of this funny, quirky Supreme Court decision, that is the way the law 
in practice developed because smart bank lawyers figured out this trick 
and have taken advantage of it.
  It is not just consumers who are getting clobbered as a result. It is 
also unfair to local banks. A Rhode Island bank is under Rhode Island 
interest rate laws. But an out-of-State bank, the big Wall Street banks 
with their big credit card subsidiaries, can play by their own rules, 
by the worst rules in the country. A Rhode Island bank, a Connecticut 
bank, a Minnesota bank--they have to play by local rules. It is not 
fair to local lenders to have this discrepancy, because it is bad for 
consumers, because consumers all across this country are paying 
interest rates now that would have been illegal just two or three 
decades ago, because it is anticompetitive, because it allows the 
biggest banks to compete unfairly against local community banks, Main 
Street banks, disadvantaged against these big Wall Street monsters 
because nobody in Congress ever made a decision nor would we have made 
a decision that this was OK. It is time we closed this loophole.
  I look forward to when we return to have the chance to get a vote on 
that amendment. I very much hope it will be a bipartisan vote because 
the principles that the Republican Party has espoused about local 
control, States rights, protecting local institutions against big, out-
of-State national entities, federalism, and our common interests across 
this floor in consumer protection all suggest that it is the kind of 
thing that should not divide us Republican against Democrat. This is 
closing a loophole that never should have existed, that we never would 
have voted for if we had the chance to vote for it, and that has 
resulted in immense harm to the public of all of our States as a result 
of these exorbitant interest rates.
  As I said, the interest rate solicitation that is landing in 
Minnesota today, that is landing in Connecticut today, and that is 
landing in Rhode Island today would have been a matter to bring to the 
authorities but for this loophole.


                              Nominations

  The final issue I wish to talk about--I guess every Member on the 
other side of the aisle has left town, so there is no Republican in 
Washington, DC, to come and object to the unanimous consent request I 
would like to offer for the stalled nominees.
  There are now over 100 names on the Executive Calendar, which is the 
list of everybody who is pending awaiting confirmation by the Senate. 
At a similar time in President Bush's administration, the number was 
20. Those numbers do go up and down, as our Republican friends have 
said. But just a few days ago, the number was over 80, and the number 
at the equivalent time in President Bush's administration was 8.
  There is a clear, systemic attack on the Obama administration's 
ability to staff its administration and, thus, govern. What is enabling 
it is the fact that you do not have to have a reason to oppose a 
nominee. Why don't you have to have a reason? You don't have to have a 
reason because you can do it secretly. Nobody even knows that it is you 
opposing the nominee. If you want to have a systemic attack on a 
President's ability to govern, what a good thing a secret hold on the 
President's nominees is.
  It has always been around, but it has been abused to a point where we 
need to be rid of it. We need to be rid of it. The right of a Senator 
to hold a nominee should be protected, but that Senator should have to 
stand and say that they are doing it. If they do not have a good enough 
reason to hold a nominee that they are willing to stand up and disclose 
it, then that is, frankly, not a legitimate hold. The secret holds have 
to end.
  The situation we are in right now, because there is a Senate rule on 
point, is that the list of nominees has been read through. Great credit 
is due Senator McCaskill who has read through the bulk of these--76 of 
them I think she has been through in the first round. We asked for 
unanimous consent on all those nominees. We received objections. I 
received an objection on a nominee that I asked for from a Senator who 
had voted for that nominee in committee. He voted for the nominee in 
committee but came to the floor and objected. The nominee had cleared 
the Judiciary Committee with zero opposition, and yet on the floor, 
held and held and held, anonymously--secretly.

  Under the Senate rules, when you have asked for unanimous consent and 
you have had that objection, you have 6 days to come clean on your 
hold. Do you know how many Republican Senators followed that rule? One 
did. One did. Senator Coburn of Oklahoma disclosed he had been holding 
six or seven appointees. That still leaves 100 on the Senate floor 
right now on the Executive Calendar.
  We began early this morning calling them up to see if those holds 
were still there because after 6 days, you are either supposed to have 
disclosed it or relinquished it. Sure enough, we kept on getting 
objection and objection and objection.
  So only two things can be true: Either they are just flagrantly 
violating the rule--what are we going to do?

[[Page S3404]]

There is no enforcement mechanism built into the rule. They are just 
saying: Make us follow the rule. You can't make us, so we are not going 
to follow it. We know it is a rule--we voted for it, and it passed with 
enormous bipartisan support. It is a rule of the Senate, but we just 
choose not to follow it because we get too much advantage out of secret 
holds. Senate rules don't really apply to us unless you can make us 
follow them.
  That is a sad place for the Senate to be, if that is where we are on 
this issue. But there are only two alternatives. The other one is that 
they still have holds, but it is not a hold by the same Senator who had 
the hold when the unanimous consent was asked for and, therefore, he 
has, under the rule, relinquished his hold. But what he has done is 
gone and found another Senator and gotten that other Senator to take up 
the hold for him. That has been called a couple of things on the Senate 
floor. It has been called the hold switcheroo.
  For those of us who are prosecutors, it looks a lot like money 
laundering. It is hold laundering. The person who has the real 
principal and interest with the hold has gotten someone else to aid and 
abet their scheme to interrupt the process of nominations and to 
violate the rules by taking on the hold for them and allowing them to 
dodge the rule. That is not a great way of doing business either.
  So whether we have a direct and outright willful violation of the 
Senate rules--massive violation of the Senate rules--or a scheme to 
hold-launder--to get people to aid and abet you in your secret hold and 
dodge the rule that way--neither is a great situation. So we need to 
fix the rules so this cannot continue. But it is a sad reflection on 
the use of the secret hold that we are in a circumstance now where the 
only two possible sets of facts are those two. It just plain isn't 
right.
  If you are here as a Senator, you should follow the rules of the 
Senate. If you are not prepared to do that, find something else to do. 
There are plenty of people who would love to serve here. To find 
another Senator to put a sham hold in to protect your hold so that you 
can dodge this rule is, frankly, unscrupulous. That is something that, 
if you could figure out who it was and you could get them in front of a 
jury and make that case, oh boy. But we don't have the enforcement 
mechanism. So we have to continue.
  But let me tell you who I was going to be asking for. There are two 
judges for the Fourth Circuit, Albert Diaz and James Wynn. They are a 
Republican and a Democrat. They are paired for appointment. They 
cleared the Judiciary Committee with only one opposing vote. One was 
unanimous and the other was everybody but one. They have been on the 
calendar now for weeks, and I would like to ask unanimous consent, but 
I am informed that because there are no Senate Republicans in 
Washington I am unable to do that right now. But they have been on the 
calendar for many weeks and there is no reason for them not to be 
confirmed.
  The following judicial candidates, or nominees for a judgeship, are 
also pending: Jon E. DeGuilo to be a U.S. district judge for the 
Northern District of Indiana; Audrey Goldstein Fleissig to be a U.S. 
district judge for the Eastern District of Missouri; Lucy Haeran Koh to 
be a U.S. district judge for the Northern District of California; Tanya 
Walton Pratt to be a U.S. district judge for the Southern District of 
Indiana; Jane E. Magnus-Stinson to be a U.S. district judge for the 
Southern District of Indiana; Brian Anthony Jackson to be a U.S. 
district judge for the Middle District of Louisiana; Elizabeth Erny 
Foote to be a U.S. district judge for the Western District of 
Louisiana; Mark A. Goldsmith to be a U.S. district judge for the 
Eastern District of Michigan; Marc T. Treadwill to be a U.S. district 
judge for the Middle District of Georgia; Josephine Staton Tucker to be 
a U.S. district judge for the Central District of California; Gary 
Scott Feinerman to be a U.S. district judge for the Northern District 
of Illinois; and Sharon Johnson Coleman to be a U.S. district judge for 
the Northern District of Illinois.
  All of these candidates are waiting. They are on the calendar, all 
pending, all cleared with either unanimous or very strong votes out of 
the Judiciary Committee, and all blocked. Yet I believe all are 
supported by Republican Senators from their home States. These are all 
district judges.
  This is a judge who sits in a local district within a State. These 
are not people who are setting national policy. These are people who 
are handling local trials, local motions practice, local Federal court 
litigation.
  If you have the support of your two home Senators, and if you have 
cleared the Judiciary Committee, that ought to be pretty simple. That 
ought to be pretty simple. But they are being held, and they are being 
held for a reason. They are being held because, if the Republicans can 
force the Democrats to burn floor time, it takes floor time away from 
the work we need to do to rebuild our economy. It takes floor time away 
from the work we need to do to clean up Wall Street. It takes floor 
time away from the bills we need to pass to fund our troops overseas. 
It takes floor time away from our ability to do the work of governing. 
It is obstruction, pure and simple.
  Because there are only so many hours in a day, there are only so many 
days in a week, and only so many weeks in a month, it is a zero sum 
game. You take time and make us spend it on these judges, and it is 
time we can't spend on floor work on the necessary legislation we have 
to get through. That is why we see these strange votes where we have 
cloture demanded and all that procedure; and then when the vote is 
finally taken we have 98 to 0 or where we have had 100 to 0. Why go 
through all that trouble when we end on a vote of 98 to 0 or 100 to 0? 
It is because there are ulterior motives. It is to burn the floor time 
of the Senate and to give the leader less and less time to accomplish 
the things that we need to accomplish.
  So I can go through many other names, but I will not do that now. I 
will await the return of a Republican Member of the Senate to 
Washington so that somebody can be on the floor of the Senate to either 
object or not object to these nominees. I would hope at this point that 
we will find they do not object. That would be consistent with the 
rule.
  If they have been on the calendar this long, if they have had their 
unanimous consent objected to, if the 6 days have run and if nobody has 
come up and actually said they have a hold on that person, then a 
unanimous consent ought to pass. Under the rule, a unanimous consent 
ought to pass. If it doesn't, it is a sign that they are either flatout 
violating the rule or that they have done this hold laundering scheme 
with a colleague to dodge out from under the rule. I think neither is 
credible and we need to work our way through this process. So on the 
next possible occasion, I will be doing that.
  I thank the Presiding Officer for his courtesy and his time. I yield 
the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________