Congressional Record, Volume 159 Issue 31 (Tuesday, March 5, 2013)

[Congressional Record Volume 159, Number 31 (Tuesday, March 5, 2013)]
[Senate]
[Pages S1107-S1121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

HEALTH CARE

Mr. HATCH. Madam President, I rise today, along with my colleague
from Tennessee, to discuss two pieces of legislation we introduced to
restore liberty and to protect jobs. The first bill, S. 40, the
American Liberty Restoration Act, would repeal ObamaCare's
unconstitutional individual mandate. The second bill, S. 399, the
American Job Protection Act, would repeal Obama's job-killing employer
mandate. These two provisions were included in the President's health
law for the purpose of raising revenues--an attempt to pay for all of
the new spending under ObamaCare--and to garner support from the
private insurance industry.
I would ask Senator Alexander, has the so-called Affordable Care Act
lived up to the promises President Obama made during the health care
reform debate to maintain personal freedom, reduce health care costs,
and decrease unemployment?
Mr. ALEXANDER. Madam President, I thank the Senator from Utah for his
leadership on these two pieces of legislation, and the answer is: No,
the new health care law hasn't lived up to the promises.
Let me cite an example. The President promised in the debates leading
up to the health care act that if someone wanted to keep the insurance
they had, they would be able to do that. I am afraid it is not working
out that way, and here is why.
What happens is that businesses around the country are finding out
when the health care law goes into effect fully they will either have
to supply a certain type of health care insurance, which in many
cases--as many as half the cases according to some studies--is a better
policy and more expensive policy than they are now offering their
employees, or they will have to pay a $2,000 tax, to the Internal
Revenue Service. That means the employee, if the business decides to do
that, will go into the exchange and lose the employer insurance they
had.
Based on my experience in talking to many businesses, there is going
to be a massive rush, by small businesses in particular and by many
large businesses, to stop offering employer-sponsored health insurance
to their employees and, instead, pay the $2,000 penalty, or tax, which
means all of those employees--most of them lower income employees or
middle-income employees--will lose the insurance they had and be in the
exchanges looking for a new insurance policy.
Mr. HATCH. Madam President, I agree with my colleague and thank him
for his comments.
I would also argue the individual mandate is unconstitutional. When
the law was being debated here in Congress, and later when it was being
litigated in the courts, proponents repeatedly argued the individual
mandate was constitutional under the commerce clause. Well, that simply
isn't the case. While the Supreme Court ultimately upheld the law on
other grounds, the majority of Justices agreed the individual mandate
was not a proper exercise of Congress's power to regulate interstate
commerce.
I have to say I agree with that conclusion. Indeed, I say it is
simply common sense the power to regulate interstate commerce does not
include the power to compel individuals to engage in commerce, which is
precisely what the individual mandate does.
Despite the Court's overall decision, the American people see the
individual mandate for what it is--an affront to individual liberty.
Indeed, the vast majority of the American people know it violates our
constitutional principles and that it cedes too much power to the
Federal Government. That is why, in poll after poll, the majority of
Americans support repealing the mandate.
I would also ask the distinguished Senator from Tennessee, Mr.
Alexander, to share his views about the individual mandate, if he has
any additional views.
Mr. ALEXANDER. I agree with the Senator from Utah. I think he stated
clearly what the constitutionality is and he has been a most forceful
advocate of that.
As I think about the legislation we are talking about, I am thinking
also about the employer mandate and the requirement that, as I
mentioned earlier, employers pay $2,000 if they do not

[[Page S1108]]

offer insurance or a $3,000 penalty if they offer the wrong kinds of
insurance.
I would say to the Senator from Utah that we are making it more
difficult to lower the unemployment rate in this country, which has
stayed too high, with 12 million people unemployed, when we keep
loading up employers with costs that make it more expensive to hire an
employee. If we make it more expensive to hire an employee, we don't
give the employer an incentive to hire more people. In fact, we
discourage the employer from hiring more people.
I wonder if I might ask the Senator, in thinking about the employer
mandate, if he agrees that employers across the country are considering
reducing their number of employees, having more part-time employees in
order to deal with this new cost of the employer mandate which is part
of the health care law.
Mr. HATCH. I would say to the distinguished Senator from Tennessee
that is certainly the case. There are various reports and analyses of
this that indicate a significant number of employers would rather pay
the penalty and not have to deal with the particular requirements the
Affordable Care Act seems to require.
On top of the unconstitutional individual mandate, this job-killing
employer mandate is a real problem. Under the President's health law,
employers with more than 50 full-time employees are required to offer
coverage, as the distinguished Senator said, that meets a minimum value
or pay a penalty of $2,000 per employee. The distinguished Senator from
Tennessee explained this well. If the employer does offer coverage but
that coverage does not meet the minimum value, employers must pay
$3,000 per employee. I have never heard such a ridiculous approach
toward business. Not surprisingly, the penalty under this provision
costs less than offering coverage. According to the Kaiser Family
Foundation annual survey of employer-sponsored health insurance,
average annual premiums are $5,615 for single coverage and $15,745 for
family coverage. Once again, the penalty for an employer who doesn't
offer health insurance is only $2,000 per employee. That being the
case, the law does not incentivize employers to offer the employees
health insurance. Instead, it does exactly the opposite. Rather than
footing the full cost of providing health coverage, many employers are
going to take the less expensive route and simply pay the penalty, as
the distinguished Senator from Tennessee has mentioned. Even worse,
many employers that currently do offer their employees health benefits
under current law will likely drop the benefits and, instead, choose to
pay the penalty.
Studies are already showing this is the case, and this will be the
case. An employer survey done by McKinsey and Company found that ``30
percent of respondents who said their companies offered employer-
sponsored health insurance said they would definitely or probably drop
coverage in the years following 2014.''
So despite the President's claim to the contrary, ObamaCare has not
preserved the employer-sponsored health insurance market. It dismantles
it. As a result, the President's promise that those who like their
health insurance would be able to keep it falls by the wayside.
I believe Senator Alexander is also concerned about the fact the
President's law defines small employers as those with less than 50
employees. In addition, I thought this law was supposed to create jobs.
The President claimed it would. So again, I would turn to my colleague
from Tennessee and ask: Does he think that has been the case? Does he
think the President has been right about that?
Mr. ALEXANDER. No, I would say to my friend from Utah, I am afraid
the President was mistaken about that. And we have talked about some
specifics, but let me give some very specific examples of why I believe
that is true.

Some time ago I met with a large group of chief executive officers of
restaurant companies in America. The service and hospitality industries
are the largest employers in America. Restaurant companies are the
largest employer of low-income, young, usually minority people. These
are Americans who are often getting their first job or they are
Americans of any age who are trying to work their way up the economic
ladder, starting with a lower paying job, a job that doesn't require as
many skills, and hoping that instead of having a minimum wage they will
end up someday with a maximum wage. But in order to get that maximum
wage they have to get on the ladder. They have to start somewhere.
Here is what I was told. The chief executive officer of Ruby Tuesday,
Incorporated, which has about 800 restaurants, said to me--and he
didn't mind being quoted--that the cost to his company of implementing
the new health care law would equal his entire profit for the company
last year and that he wouldn't build anymore new restaurants in the
United States as a result of that. He said he would look to expand
outside.
Another, even larger restaurant company, said because of their
analysis of the law, instead of operating their stores with 90
employees, they would try to offer it through stores with 70 employees.
So that means fewer employees and it means fewer employees receiving
employer health care.
Then almost every other restaurant said they were looking for ways to
have more part-time employees so they didn't have to incur the expense
of the new health care law.
So at least with that industry and those low-income, usually
minority, often young employees, the jobs are going away because of the
health care law. And with those jobs goes whatever employer health care
insurance was being offered by those companies.
Mr. HATCH. I have heard the same complaints by the restaurant
industry, and by a lot of small businesses that are looking to not hire
more than 50 people, and also are looking to cut their employees' work
hours down to below 30 hours a week in order to avoid these massive
costs that would incur to them.
The employer mandate is a drag on our economy, forcing too many of
our Nation's job creators to stop hiring and growing their businesses
in order to comply with the onerous provision in the President's health
law. Instead of letting the Federal Government dictate how employers
should allocate resources, we should repeal this job-killing mandate
and let businesses freely manage their personnel needs.
Mr. ALEXANDER. I certainly agree with the Senator from Utah, and that
is the purpose of our legislation. We could offer more examples. The
Wall Street Journal article of February 22 of this year said:

Many franchisees of Burger King, McDonalds, Red Lobster,
KFC, Dunkin' Donuts and Taco Bell have started to cut back on
full-time employment, though many are terrified to talk on
the record.

These are the kinds of companies I was talking about.
The article also references a 2011 Hudson Institute study that
estimates the employer mandate will cost the franchise industry $6.4
billion and put 3.2 million jobs at risk.
Mr. HATCH. I couldn't agree more with the distinguished Senator from
Tennessee, and I ask unanimous consent to have printed at this point in
the Record an article under Politico's banner, titled: ``Under ACA,
Employer Mandate Could Mean Fewer Jobs.''
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From Politico, Feb. 27, 2013]

Under ACA, Employer Mandate Could Mean Fewer Jobs

(By Dan Danner, Bruce Josten, Matthew Shay, and Dirk Van Dongen)

This March marks the third anniversary of the passage of
the president's sweeping health care legislation. But for
many in the business community now facing a litany of
difficult decisions in the law's wake, this milestone will be
met with capitulation rather than celebration.
With the employer mandate, Obamacare puts the nation's job
creators between a rock and a hard place. Despite the gentle
sounding title, the Shared Responsibility provision actually
takes the two parties who should be making decisions about
employer-sponsored health coverage (the employer and the
employee) completely out of the equation. Beginning in 2014,
large employers must provide a prescribed level of health
care coverage to all full-time employees or potentially pay a
hefty penalty. While this may sound relatively
straightforward, it is anything but.
Beyond imposing a costly and non-negotiable mandated
benefit, the law also redefines the long-standing definition
of a full-

[[Page S1109]]

time employee. With the passage of the law, an employee
working an average of 30 hours or more per week over a month
is a full-time employee. Further, the law sets out a
complicated algorithm to determine whether a business is a
large employer. Aggregating the hours of all part-time
workers and adding in the number of full-time workers are
necessary to determine whether a business has the equivalent
of 50 or more fulltime employees and is therefore, a large
employer.
Under the guise of improving access to coverage, the
mandate presents a false choice for owners: provide one-size-
fits-all health care coverage at the expense of higher wages
and other benefits; or potentially pay a penalty. The
unfortunate reality is that, with this devil's choice,
everyone ends up paying a penalty--employers, employees and
the unemployed. Whatever ``choice'' the employer makes will
lead to fewer jobs, lower wages and lost revenue.
For employers near the ``large'' employer threshold, we can
expect to see layoffs or dramatically reduced hours. These
will be tough decisions, especially for small businesses
where employees are like family and benefits options are
often discussed and agreed upon collaboratively. The rising
cost of the mandated insurance plans will very likely force
many businesses to drop coverage entirely and pay the steep
penalty, a difficult choice but a necessary one in light of
increasingly cost-prohibitive employee coverage. Smaller
businesses that might otherwise be eyeing expansion and
growth down the road will most likely reduce or cap the
number of employees to avoid the expensive mandate in the
future.
The options available to job creators are bleak--cut their
workforce, stem growth, pay a penalty or go out of business--
and whatever choice they are forced to make will ultimately
harm employees and the economy. Replacing one full-time
position with two part-time positions is a hollow form of job
creation--not an efficient way to create good jobs that can
support families. Compliance costs--already 36 percent higher
for small firms--will soar; those costs, as well as the money
that must now go toward increased benefits or nontax
deductible penalties, will crowd out wage increases and
business investment.
The Commerce Department reported last month that in the
fourth quarter of 2012, economic growth contracted for the
first time in more than three years. This isn't a surprise,
given that the small-business sector has never recovered--and
is unlikely to--while Washington continues to penalize small
employers for expanding. At a time when our economy is deeply
troubled, our government is forcing employers to restructure
in ways that repress growth and employment.
Thankfully, Thursday's bicameral introduction of the
American Job Protection Act by Sens. Orrin Hatch of Utah and
Lamar Alexander of Tennessee and Congressmen John Barrow of
Georgia and Charles Boustany of Louisiana comes at a perfect
time. Members of both parties recognize the damage this
impending mandate will have on our economy, and Congress
should repeal it before it's too late.

Mr. HATCH. Again, I thank my colleague from Tennessee for working
with me on these two critical issues that impact every American. I will
conclude with a quote from a Utah employer. This is a small business
owner who is concerned about what the company will do come January 1 if
these mandates remain in place. This employer wrote to me saying this
about ObamaCare:

We will have to choose who will work 30 or less hours a
week, which in turn is bad for our business because we have
to train more people to do one job. It is bad for our
customers because they will have to interact with different
employees who may not know the customer's needs as well, and
it is most devastating for the employee because the
employee's hours will be cut.

If we want to turn this economy around, government decrees such as
the employer mandate must be repealed.
Our job creators cannot grow and innovate with these heavy-handed
regulations coming from Washington bureaucrats who have no clue how to
run a business.
We must work together on this important issue for the sake of the
individuals working three jobs at a time to make ends meet, for
employers trying to keep workers on the payroll and contributing to the
economy, and for our Nation as a whole to put our economy on the right
track and to keep us globally competitive. At least that is my
viewpoint, and it is certainly the viewpoint of my small business
colleagues there in Utah.
Mr. ALEXANDER. I thank the Senator from Utah for this opportunity to
have a colloquy with him, and I ask unanimous consent to have printed
in the Record following my remarks letters from the National Restaurant
Association, Chamber of Commerce of the United States, and the National
Retail Federation, each of which strongly supports our legislation and
makes the points we have made about the employer mandate.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Restaurant

Association,

Washington, DC, February 27, 2013.
Re Support for repeal of Shared Responsibility for Employers
provision.

Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Hon. Lamar Alexander,
U.S. Senate,
Washington, DC.
Dear Senators Hatch and Alexander: On behalf of the
National Restaurant Association members, we write in support
of the American Job Protection Act, and to thank you for your
leadership on this issue. This legislation would repeal the
2010 health care reform law's harmful employer mandate.
The National Restaurant Association is the leading business
association for the restaurant and food service industry. The
industry is comprised of 980,000 restaurant and foodservice
outlets employing 13.1 million people who serve 130 million
guests daily. Although it is predominately comprised of small
businesses, the restaurant industry is the nation's second-
largest private-sector employer, employing 10 percent of the
U.S. workforce.
Regrettably, the employer mandate is expected to
significantly increase costs within our industry, threatening
entrepreneurs' ability to hire additional employees, or
expand operations. The American Job Protection Act would
repeal the mandate, thereby providing restaurateurs the
flexibility to provide the health care coverage that they can
afford, while addressing the varying needs within the diverse
workforce.
Again, thank you for introducing the American Job
Protection Act. We strongly support the legislation's passage
and look forward to working with you toward that end.
Sincerely,

Angelo I. Amador, Esq.,

Vice President,
Labor & Workforce Policy.

Michelle Reinke Neblett,

Director,
Labor & Workforce Policy.
____

Chamber of Commerce of the

United States of America,

Washington, DC, March 1, 2013.
Hon. Orrin G. Hatch,
U.S. Senate,
Washington, DC.
Hon. Lamar Alexander,
U.S. Senate,
Washington, DC.
Dear Senators Hatch and Alexander: The U.S. Chamber of
Commerce, the world's largest business federation
representing the interests of more than three million
businesses and organizations of every size, sector, and
region, thanks you for introducing S. 399, the ``American Job
Protection Act, '' which would repeal the employer mandate
included in the Patient Protection and Affordable Care Act
(PPACA). This requirement is already having a negative effect
on employment and will continue to discourage small
businesses from growing. In fact, the Chamber's most recent
quarterly small business survey released in January of 2013
confirmed that 71 percent of small business executives
believe that implementation of the health care law will make
it harder for them to hire more employees.
The PPACA requires businesses with 50 or more full-time
equivalent employees to offer certain health benefits or pay
steep penalties. Even businesses that do provide health
benefits may still be subjected to draconian fines.
Businesses with fewer than 50 full-time equivalent employees
are hesitant to grow their businesses or hire what would
amount to the fiftieth employee. Repealing this ``shared
responsibility'' provision would not only protect existing
jobs, but spur the creation of new jobs by removing the fear
and uncertainty many small businesses are experiencing in
anticipation of these coverage requirements that begin in
2014.
Prior to the enactment of the PPACA, businesses voluntarily
offered health insurance to most Americans. According to the
Employee Benefits Research Institute, more than 156 million
Americans had employer-sponsored health insurance in 2009.
But now, the employer mandate requires businesses to provide
prescribed coverage, an unprecedented intrusion on employers'
freedom to develop employee compensation packages. This
requirement is not only unlikely to achieve the objective of
forcing all employers to provide federally prescribed
coverage, it is also likely to incent employers to drop
coverage entirely, limit employees' hours, and restrict job
growth.
The requirement would also disproportionately disadvantage
low-income workers and the businesses that employ them, since
these are the workers that would trigger the penalty
provision and subject a business to unpredictable and
significant fines. Further, for the first time, the PPACA
defines a ``full-time'' employee as someone who works 30
hours per week, rather than the traditional definition of 40
hours per week.
It is critical that the employer mandate be removed before
it takes effect in 2014 so that employers can focus on
strengthening their

[[Page S1110]]

businesses, hiring more workers, and revitalizing the
economy. The Chamber looks forward to working with you and
your colleagues to enact this vital legislation.
Sincerely,
R. Bruce Josten.
____

National Retail Federation,

Washington, DC, March 4, 2013.
Hon. Orrin Hatch,
Senate Hart Office Building, U.S. Senate, Washington, DC.
Dear Senator Hatch: I write to lend the support of the
National Retail Federation (NRF) to employer mandate repeal
legislation you have introduced: S. 399, the American Job
Protection Act. We strongly support your bill and urge that
it be promptly adopted.
NRF has myriad concerns with and objections to the
Affordable Care Act, even as our focus shifted to trying to
help our members comply with the new law. Your legislation
appropriately would repeal the employer mandate. We strongly
supported your legislation in the 112th Congress and proudly
do so again now.
Eliminating the employer mandate would greatly aid the
greater retail community, which is heavily dependent on
labor. One of every four jobs in the American economy is
supported by retail, which would be jeopardized by the
mandate effective in 2014. The employer mandate is already
deterring job growth today at the expense of tomorrow's
economy.
NRF commends you for introducing this legislation. We note
with appreciation that your bill was introduced with 26
original cosponsors. We strongly support your efforts.
Sincerely,

David French,

Senior Vice President,
Government Relations.

Mr. HATCH. Once again I thank my colleague from Tennessee, and I am
hoping that others will hear our call for support and join us in these
two crucial efforts to protect individual freedom and to maintain our
system of free enterprise which has built this country and made it the
best in the world.
So I thank the Senator from Tennessee.

Correcting the Record

Mr. ALEXANDER. Madam President, I see the Senator from Maryland is
waiting, and I wonder, if we are through with our colloquy, if the
Senator would allow me 2 or 3 minutes to correct a mistake I made on
the floor of the Senate last week.
Confessing error: I came to the floor following the vote on the Hagel
nomination to point out the difference between a vote against a
premature motion to cut off debate--which I thought the majority leader
made--and an effort to kill a nomination with a filibuster, which are
two different things. I pointed out--correctly--that in the history of
the Senate, we have never denied to a district judge nominee his or her
seat because of a failed cloture vote, and I don't believe we should. I
pointed out we have never denied a Cabinet nominee his or her seat
because of a filibuster, with the possible exception of John Bolton,
whom the Democrats filibustered. Some Presidents count that nomination
to the U.N. in their Cabinet and some don't.
I then went on to say--incorrectly--that on appellate judges, the
Democratic majority had filibustered and killed 10 of President Bush's
nominations, and Republicans had in response denied two appellate judge
seats by filibuster. Senator Schumer of New York--ever wary of what I
might say--corrected me and said it was less than that. So I have
consulted with him and his staff, and the score is actually 5 to 2.
The correct result is that before George W. Bush became President--
and the Senator from Utah knows this story very well--there were no
instances of an appellate Federal judge being denied his or her seat
because of a filibuster. Then our friends on the Democratic side
invented the idea of filibustering circuit judges and voted against a
whole series of President Bush's nominees just as I came to the Senate:
Miguel Estrada, Charles Pickering, William Pryor, Priscilla Owen,
Carolyn Kuhl, Janice Brown, and then four more in 2004: William Myers,
David McKeague, Henry Saad, and Richard Griffin.
But then we had a cooling of tempers and a coming to our senses and a
bipartisan Gang of 14 said we don't want to make this a new precedent,
and we agreed--there was a consensus, anyway--that only in a case of
extraordinary circumstance would there be a denial of a nominee of an
appellate judge by a cloture vote. So then 5 of those 10 Bush nominees
were approved.
So the Schumer staff and my staff agreed with this--and if anybody
thinks it is wrong, I would like to know--that only in five cases have
Democrats denied a Republican President an appellate judge nominee by
filibuster and only in two cases have Republicans denied a Democratic
President's nominee by filibuster in the case of appellate judges. As I
said when I began, the answer is never in the case of district judges
and never in the case of Cabinet members, with the possible exception
of John Bolton.
I am glad to come to the floor and correct the record. I thank
Senator Schumer for his diligence in noting my error.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Madam President, I ask unanimous consent that we return to
the Halligan nomination.
I also ask further unanimous consent that I be permitted to speak
following the distinguished Senator from Maryland.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Maryland.
Mr. CARDIN. Madam President, I am taking this time on the floor to
speak in support of the nomination of Caitlin Halligan to be U.S.
Circuit judge for the U.S. Court of Appeals for the District of
Columbia Circuit.
I think my comments are at the right time, following Senator
Alexander's comments about the difficulty we have had in the past
confirming judicial nominees and the use of the filibuster that blocked
the consideration of Presidential nominees.
Senator Alexander pointed with pride to an accommodation that was
reached a few years ago, before I got to the Senate, that the
filibuster would only be used in ``extraordinary circumstances.''
Ms. Halligan was first nominated by President Obama in September
2010, after that accommodation had been reached. I am disappointed that
her nomination was filibustered, nearly on a party-line vote, in
December of 2011. I urge my colleagues to allow an up-or-down vote on
Ms. Halligan's nomination.
I would challenge my colleagues who oppose an up-or-down vote to come
to the floor and explain the extraordinary circumstances that would
prevent an up-or-down vote on Ms. Halligan's nomination. She is
extremely well qualified for this position, and I will support her
nomination.
The Senate Judiciary Committee favorably reported her nomination last
month. The American Bar Association's Standing Committee on the Federal
Judiciary unanimously rated Ms. Halligan ``well qualified'' to serve on
the DC Circuit--the highest rating from its nonpartisan peer review.
Ms. Halligan received her A.B. from Princeton University and her J.D.
from Georgetown University Law School. After law school, she clerked
for Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on
the DC Circuit, the court to which she has now been nominated.
After working in private practice, Ms. Halligan joined the New York
State attorney general's office. She began working in the office as the
first chief of the office's Internet Bureau, where she worked to
protect consumers against Internet fraud and safeguard online privacy.
She was ultimately promoted to the position of solicitor general, a
position she held for 6 years. The solicitor general is basically the
top attorney for the State of New York.
In that capacity she managed a staff of nearly 50 appellate attorneys
litigating in State and Federal appellate courts. Her responsibility
included handling cases of public corruption and judicial misconduct.
She then became a leading appellate lawyer in private practice at a
national law firm, serving as counsel of record for a party or amicus
curiae in nearly 50 matters before the U.S. Supreme Court.
She is well qualified for the position to which President Obama has
nominated her.
She is currently general counsel at the New York County district
attorney's office, an office that investigates and prosecutes 100,000
criminal cases annually in Manhattan. In her current position, she is
focused on reducing crime, protecting victims of domestic

[[Page S1111]]

and sexual violence, and reviewing so-called cold cases that remain
unsolved.
Most of Ms. Halligan's career has been dedicated to public service
and law enforcement. She has also made time over the years to devote
substantial time to pro bono work, including representing the evacuees
from Hurricanes Katrina and Rita who were in danger of losing their
rental assistance benefits.
She has also served as pro bono counsel to the Board of Lower
Manhattan Development Corporation, the entity that is overseeing the
rebuilding of Lower Manhattan following the terrorist attacks of
September 11, 2001.

She has her priorities straight. She is an outstanding attorney. She
has used a lot of her time to help people less fortunate receive free
legal services as a result of her participation.
Ms. Halligan has received widespread support from law enforcement and
legal professionals across the political spectrum which I understand
will be made part of the Record, so I will not repeat those statements
now.
I have heard only two substantial reasons in opposition to her
nomination. Let's review those two points that have been raised to see
whether they are extreme circumstances that warrant a vote to support a
filibuster. Last time we had over 40 Senators who supported the
filibuster basically blocking an up-or-down vote. We had an
accommodation that would only be used for extraordinary circumstances.
Let's take a look at the two cases that have been made about why those
extraordinary circumstances may exist--and, I will submit, they do not
exist.
One argument is that Ms. Halligan is a liberal advocate who cannot
set aside her personal views on issues, including the second amendment.
The other argument is that the D.C. Circuit has too low a caseload to
justify additional judges.
Ms. Halligan was questioned about her views on the second amendment
issues during her Senate Judicial Committee hearing. She testified,
both at her hearing and in response to written questions, that she
would faithfully follow and apply the Supreme Court precedent from the
District of Columbia v. Heller and McDonald v. Chicago, which held the
second amendment protects an individual right to keep and bear arms for
self-defense.
When asked by Senator Grassley whether the rights conferred under the
second amendment are fundamental, Ms. Halligan answered: ``That is
clearly what the Supreme Court held and I will follow that precedent,
Senator.''
Some have also criticized her for her position she advocated while
solicitor general for the State of New York. In her confirmation
hearing, she made it clear she filed these briefs at the direction of
the New York attorney general--arguing on behalf of New York State, not
her own views. It was her responsibility as solicitor general to
represent her client, the State of New York.
Of course, she has worked on controversial issues before the State of
New York, such as affirmative action, the death penalty, and same-sex
marriage. As New York solicitor general, she argued in support of
affirmative action and in defense of the constitutionality of the death
penalty because that is what her client's position was and she
represented her client. That is what she is supposed to do. That is
what a lawyer does, represent her client as best as she can, and she
did that well on behalf of her client, the State of New York.
But I will remind my colleagues what Chief Justice Roberts said
during his Supreme Court confirmation hearing in terms of attributing
the views of a client to an attorney. Chief Justice Roberts testified
that:

It's a tradition of the American Bar that goes back before
the founding of the country that lawyers are not identified
with the positions of their clients.

We should apply the same standard when considering Ms. Halligan's
nomination, as our legal system requires vigorous advocacy by both
sides of a dispute.
I quote Chief Justice Roberts here in part because Ms. Halligan,
quite remarkably, has been nominated in 2013 to fill Chief Justice
Roberts' former seat in the D.C. Circuit, which became vacant in 2005.
This brings me to the second argument that has been used. I urge my
colleagues to consider whether this is an extraordinary circumstance
that justifies a vote in support of a filibuster.
The second argument is that this court has a low caseload, which is
just not the case. Chief Justice Roberts was elevated from the D.C.
Circuit to the Supreme Court in 2005. His seat has been vacant for 8
years, one of the longest circuit vacancies in the country. The D.C.
Circuit has four vacancies on the 11-member court. That is one-third of
the court that is currently unfilled.
Ms. Halligan has been nominated by the President for the seat
formerly held by Chief Justice Roberts, so, of course, the Senate
should act as quickly as possible to fill this seat.
The D.C. Circuit is often referred to as the second most important
court in the land due to the complexity and importance of its caseload.
The court regularly reviews highly technical decisions and rulemaking
of Federal agencies that are based in Washington, often without a lower
court decision of a Federal district court.
The D.C. Circuit proclaims the final law of the land for many
environmental, health, labor, financial, civil rights, and terrorist
cases. The Supreme Court only accepts a handful of cases each year, so
the D.C. Circuit is often the last word in these cases.
According to the Administrative Office of the U.S. Court, the
caseload per active judge in the D.C. Circuit has increased 50 percent
since 2005, when this vacancy was created. It was also the year the
Senate confirmed President Bush's nominee to fill the 11th seat on the
court. Let me repeat that. We in 2005 confirmed President Bush's 11th
seat of the 12-seat court. Justice delayed is justice denied.
To remind my colleagues, the Senate confirmed President Bush's
nominees for the 9th, 10th, and 11th seats on the D.C. Circuit. Ms.
Halligan is President Obama's first nominee to the District Circuit to
fill the eighth seat. The Senate confirmed four of President Bush's
nominations to the D.C. Circuit, twice filling the 10th seat and once
filling the 11th seat.
So there is no extraordinary circumstance that exists. Let's be clear
about that. A vote against moving forward is filibustering a judicial
nominee in an effort to kill the nominee and not allow an up-or-down
vote. There are no extraordinary circumstances that would justify the
delay and not allowing us to have an up-or-down vote.
I urge my colleagues to vote for us proceeding and not using the
filibuster; to adhere to the agreement that was reached. Again, it was
before I got to the Senate. It was the right agreement, that there
should truly be an extraordinary circumstance that prevents an up-or-
down vote on a judge. It does not exist in this case. President Obama's
nominee is well qualified. The court is in desperate need of additional
judges, being four seats short today, only two-thirds of the bench
having been appointed and confirmed to date. I urge my colleagues to
vote in favor of proceeding and then, after we have the nominee before
us, I hope my colleagues will join me in supporting the confirmation. I
think Ms. Halligan will make an outstanding member of the D.C. Circuit.
Mr. HATCH. Madam President, we have before us one of the most
activist judicial nominees we have seen in years.
Rather than choose a more consensus nominee, President Obama has
chosen to again provoke a political confrontation.
This is unnecessary, divisive, and not in the best interests of
either the judicial selection process or the judiciary.
The Constitution gives the power to appoint judges to the President,
not to the Senate. I believe, therefore, that the Senate owes the
President some deference with respect to nominees who are qualified by
both legal experience and, more importantly, judicial philosophy.
A nominee whose record shows that she has an activist judicial
philosophy is simply not qualified to sit on the Federal bench, and the
Senate owes the President no deference under those circumstances.
That is the kind of nominee we have before us today.
Nothing has changed since a cloture motion failed on this nominee in
December 2011.
Well, that might not be quite true.
One thing that has changed is that the need to fill another vacancy
on the

[[Page S1112]]

D.C. Circuit is even less today than it was then.
Year after year, case filings decrease for the D.C. Circuit while
they increase for the rest of the judiciary.
Year after year, the D.C. Circuit ranks last among the 12
geographical circuits in the number of appeals filed per three-judge
panel.
The court has even cancelled argument days because of an insufficient
docket.
And I would remind my friends on the other side of the aisle that the
D.C. Circuit's caseload today is lower than when they used this
argument to block President Bush's nominees to this court--which they
did.
Looking at the nominee herself, Caitlin Halligan was a member of the
New York City Bar's Committee on Federal Courts and signed its March
2004 report titled ``The Indefinite Detention of `Enemy Combatants':
Balancing Due Process and National Security in the Context of the War
on Terror.''
Based on policy rather than legal grounds, it makes left-wing
arguments that courts and even the Obama administration itself have
repudiated.
Although she tried to distance herself from the report's left-wing
positions at her confirmation hearing, Halligan signed rather than
abstained from the report, as four other committee members had done,
and never repudiated it before her hearing.
If she were a Republican nominee, my friends on the Democratic side
would call this a confirmation conversion.
Her report argued that the Authorization for the Use of Military
Force, or AUMF, does not authorize indefinite detention of enemy
combatants.
The Supreme Court rejected this in Hamdi v. Rumsfeld. The Obama
administration has sought, and the D.C. Circuit has adopted, a broad
construction of the AUMF.
Halligan's report argued that alien terrorists should be tried in
Article III courts, with full constitutional protections, rather than
in military commissions.
On March 7, 2011, President Obama signed an executive order re-
establishing military commissions for enemy combatants held at
Guantanamo Bay.
But Halligan's extreme record on these important issues goes beyond
that report.
She also authored a legal brief in 2009 arguing that the AUMF does
not authorize the seizure and long-term military detention of lawful
permanent resident aliens.
This position again disregarded the Supreme Court's holding in Hamdi
v. Rumsfeld and appears even to conflict with the Obama
administration's justification of assassinating American citizen Anwar
al-Awlaki.
She just won't take no for an answer when pushing such extreme views,
not even from the D.C. Circuit or the Supreme Court itself.
That is the classic definition of judicial activism, trying to use
the courts to advance a political agenda no matter what the law is.
As Solicitor General of New York, Halligan aggressively sought to
hold gun manufacturers liable for criminal acts committed with
handguns.
In one speech, she said that the Federal Protection of Lawful
Commerce in Arms Act ``would nullify lawsuits. . . including one
brought by my office. . . that might reduce gun crime or promote
greater responsibility among gun dealers.''
The Senate voted overwhelmingly for this legislation in July 2005.
Once again, Halligan turned to the courts to push her personal
political views, filing a legal brief challenging the law's
constitutionality.
In New York v. Sturm & Ruger, she argued that gun manufacturers
maintain a ``public nuisance'' of illegally possessed handguns.
The New York Court of Appeals rejected Halligan's activist approach,
concluding that ``the Legislative and Executive branches are better
suited to address the societal problems concerning the already heavily
regulated commercial activity at issue.''
Attempting to address social problems in the judicial rather than the
legislative branch is a hallmark of judicial activism.
Finally, other legal briefs she has filed similarly demonstrate
extreme views that the Supreme Court has rejected.
In Scheidler v. NOW, Halligan argued that pro-life protesters should
be prosecuted under the Federal racketeering statute because they
somehow engage in extortion.
The Supreme Court voted 8-1 to reject that position.
And in Hoffman Plastics Compounds, Inc. v. NLRB, the Supreme Court
rejected Halligan's position that the NLRB can grant backpay to illegal
aliens.
As I said, the Senate owes the President some deference with regard
to his nominees who are qualified by their legal experience and, more
importantly, their judicial philosophy.
Republicans have consistently cooperated with the President and will
continue to do so. But when a nominee's record clearly shows that she
has a politicized view of the courts, I for one have to say no.
The political ends do not justify the judicial means.
I urge my colleagues to oppose this nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. HOEVEN. Madam President, I rise to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Keystone XL Pipeline

Mr. HOEVEN. Madam President, last week the U.S. State Department
issued its new environmental review for the Keystone XL Pipeline. This
is the fourth environmental review in nearly 5 years of study.
Unsurprisingly, it said the same thing as all the other reports have
said.
The Keystone XL Pipeline will have no significant impact on the
environment. Again, the Keystone XL Pipeline will have no significant
impact on the environment.
Ironically, the report indicates that there will be more emissions if
you do not build the pipeline than if you do build the pipeline. So
let's go through that for a minute. The Keystone XL Pipeline project is
perhaps the most thoroughly studied and long-delayed project of its
kind in U.S. history. The State Department's favorable finding in this,
its most recent report, underscores both the good environmental
stewardship of this project and the need to begin construction without
further delay. But the State Department now indicates it will hold a
45-day comment period and an as-yet-undetermined period of time before
it will issue a final environmental impact statement. Then it will
conduct an interagency comment period to make its national interest
determination.
So while we welcome the finding of no significant impact, for the
fourth time now, we have yet another indeterminate delay which runs
counter to both public opinion and reasonable due diligence. After four
environmental reviews and favorable results, the President needs to
approve the Keystone XL Pipeline project without delay because there
remains no excuse not to do it.
The argument has been advanced that the oil sands will increase
carbon emissions and that failing to build the Keystone XL Pipeline
will somehow reduce emissions. But the most recent State Department
report makes clear that this contention is false. The report actually
indicates just the opposite, that if the pipeline is not built from
Alberta, Canada to the United States, the oil will still move to market
but it will move to China from Canada's west coast. To get the product
to China, the oil will be shipped in tankers across the Pacific Ocean
to be refined in overseas facilities with weaker environmental
standards and more emissions than facilities in the United States. The
United States, moreover, will continue to import oil from the Middle
East--again on tankers. Factor in the cost of trucking and railing the
product to market over land and the results--contrary to the claims of
its opponents--will be more emissions and a less secure distribution
system than if in fact we build the Keystone XL Pipeline project.
Let's look at it. This is a commonsense argument. The report
indicates less emissions if we build the project. Yet it is being held
up by extreme activists on the basis that if we build the pipeline,
somehow we get more emissions. That is just not the case.
With the pipeline from up in the Edmonton-Hardisty-Alberta, Canada
region, the pipeline brings oil down right

[[Page S1113]]

in the North Dakota-Montana area where it picks up 100,000 barrels a
day from the Bakken. The oil then goes to refineries in Illinois and
Oklahoma, Texas and Louisiana. We have domestic oil, from our country,
oil from our closest friend and ally, Canada, that we are using here in
our refineries for our customers: more energy, more jobs, more economic
activity so we get economic growth, we get revenue to reduce the debt
and the deficit without raising taxes, and it is a national security
issue. Instead of having tankers coming from the Middle East bringing
heavy crude in some cases which in fact has higher emissions than the
Canadian oil, we rely on oil from our country and Canada. We get what
Americans want; that is, no longer depending on the Middle East for
oil.
If we do not build the pipeline, the oil is still produced. This oil
will be produced, but it will not come to the United States. It is
going--where? It is going to China. And it is going to be sent on
tankers over to China so you have not only the emissions of those
tankers but it is going to be refined in Chinese refineries which have
worse environmental standards than we do, and we continue to bring in
oil from the Middle East. That makes no sense and that is why 70
percent of the American people approve the project. Only 17 percent
have indicated opposition.
This is about President Obama making a decision for the American
people rather than for special-interest groups. In my home State of
North Dakota, as I say, we will put 100,000 barrels a day of light
sweet Bakken crude into that pipeline. That takes 500 trucks a day off
our roads. That is a safety issue. That is an issue for our roads in
western North Dakota.
To recount briefly, this is a $7 billion high-tech pipeline project
that will bring 830,000 barrels of oil today from Alberta, Canada to
refineries in Oklahoma and the Texas gulf coast, as I said, including
100,000 barrels a day of light sweet crude from the Bakken oil fields
in North Dakota and Montana.
As the most recent State Department report confirms, it will create
tens of thousands of jobs during the construction phase, boost the
American economy, raise much needed revenue for State and local
governments at a time when they very much need it, and do it without
raising taxes. Perhaps most importantly, it will put our country within
striking range of a long-sought goal, and that is true energy security.
For the first time in generations, the United States--along with its
closest friend and ally Canada--has the capacity to produce more energy
than we use, as well as eliminate our reliance on the Middle East and
other volatile parts of the world such as Venezuela.
Even after an exhaustive review process, the consent of every State
along its route, the backing of a majority of Congress, and the
overwhelming support of the American people, the Keystone XL Pipeline
project continues to languish at the hands of the President of the
United States.
We again ask, as we have before, that President Obama and Secretary
of State Kerry provide us with an actual timeline and some certainty as
to when this long-delayed project will finally get approved.
The Keystone XL project will provide tens of thousands of jobs and
hundreds of millions of dollars in revenue to help us reduce our debt
and deficit, and it will do it with good environmental stewardship.
With 70 percent of the American people in support of the Keystone XL
Pipeline and 12 million Americans still out of work, there is no
reasonable excuse to delay this project any longer.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER (Mr. Manchin). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ROBERTS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROBERTS. Mr. President, I ask unanimous consent that I be
recognized for 15 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Roberts pertaining to the introduction of S. 458
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. ROBERTS. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Arizona is recognized.
Mr. McCAIN. I thank the Chair.
(The remarks of Mr. McCAIN pertaining to the submission of S. Con.
Res. 5 are located in today's Record under ``Submitted Resolutions.'')
Mr. McCAIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COONS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Mr. President, the Founders of our country, committed to
justice and fairness for all its citizens and in establishing a
structure that would make this country uniquely strong as a democracy,
gave us three coequal branches of our government. Two of those branches
have dominated the national news recently as we lurch from crisis to
crisis, from fiscal cliff to sequester. The back-and-forth between the
President and Congress, between the executive and the legislative
branches, has been the headline day after day.
Meanwhile, the third coequal branch, the judicial branch of our
Federal Government, has quietly gone about its business, doing its job
for the American people, providing fair hearings, equal justice under
the law, the basic right to a speedy resolution to any dispute--or has
it?
All around this country members of the judicial branch are getting
their jobs done but with fewer and fewer resources and support, fewer
colleagues on the bench than ever before. Nearly 10 percent of all
Federal judgeships--positions for Federal judges that should be
filled--are vacant, empty, leaving those judges who are on the bench
overwhelmed with steadily increasing caseloads and unable to provide
the level of service, certainty, and swift resolution that the American
people deserve and upon which our government was predicated.
Particularly when you are the one going into court seeking redress or
when you are the one facing legal action, justice delayed is justice
denied. As a member of the Delaware bar and a former Federal court
clerk myself, as well as a member of the Senate Judiciary Committee, I
have seen firsthand the consequences of this ongoing, slow-rolling
crisis in our Federal courts.
Right now we have more than double the judicial vacancies we had at
the same point in the last administration. The Senate has confirmed 30
fewer of President Obama's nominees than it had of President Bush's at
this same time.
One of the most underresourced circuits is right here under our nose
in Washington, DC. The DC Circuit is often called the second most
important court in the land. Although it may not make the headlines, it
may not be as visible to the American people as this ongoing fight
between the Congress and the President, the DC Circuit decides issues
of national importance, from terrorism and detention to the scope of
agency power. It has importance to every American, not just the ones
who happen to live in the District of Columbia, and yet its bench is
almost half empty.
Congress has set the number of judgeships needed by the DC Circuit
Court at 11, and right now they have just 7. President Bush had the
opportunity to appoint four judges to the DC Circuit, including the
10th judicial position twice and the 11th judicial position once. Yet
President Obama has been denied the opportunity to make even a single
appointment to the DC

[[Page S1114]]

Circuit Court despite four vacancies. As a result, the per-judge
caseload is today 50 percent higher than it was after President Bush
had the opportunity to fill that last, the 11th seat. And in terms of
our obligation to this coequal branch, our obligation to the citizens
of the United States, and our obligation to provide an opportunity for
justice, that is an outrage.
Today the Senate has the opportunity to take up and consider a highly
qualified nominee to fill one of these vacancies, to start to do our
job and bring this vital circuit court closer to full capacity. We can
do that by confirming the nomination of a brilliant lawyer and a
dedicated public servant named Caitlin Halligan.
Ms. Halligan, with whom I have met, has been nominated to the DC
Circuit Court and renominated to the DC Circuit Court and renominated
to the DC Circuit Court across three sessions of Congress--the 111th,
112th, and 113th. She has been nominated because of her superb
qualifications and her impressive personal background.
She worked in private practice at a respected New York law firm. She
served in public service as solicitor general for the State of New
York. She is currently the general counsel of the New York County
District Attorney's Office--an office that investigates and prosecutes
100,000 criminal cases every year.
Ms. Halligan has earned the support of her colleagues in law
enforcement and across the spectrum. Everyone, from New York City
police commissioner Raymond Kelly to preeminent conservative lawyer
Miguel Estrada, has supported her nomination. The American Bar
Association's standing committee unanimously gave her its ranking of
highest qualification to serve: ``highly qualified.'' Yet Ms. Halligan
has had to face, in my view, outrageous distortions of her record that
cause one to wonder if any nominee to this circuit would be acceptable
on their merits.
Ms. Halligan has withstood steady and withering political attacks on
positions she advocated while solicitor general for the State of New
York, positions she argued on behalf of her client--New York State and
its attorney general--not positions that represented her own personal
views. If you reflect on this, it is, as all practicing attorneys know,
inappropriate to disqualify a judicial candidate because she advocated
a position for a client with which a certain Senator might disagree or
which has been rejected by a court. This fundamental principle that you
do not associate an attorney with a position advocated in court has
been widely shared, widely supported, and, in fact, Chief Justice
Roberts himself said:

It's a tradition of the American Bar that goes back before
the founding of the country that lawyers are not identified
with the positions of their clients.

Even so, Ms. Halligan's positions on issues such as, for example,
marriage and States rights have hardly been radical. When asked to
analyze New York's marriage law, she concluded that the State statute
did not provide same-sex couples with the right to marry. When
presented with the question of whether a ban on same-sex marriage was
legal under the New York Constitution, she merely said that there were
arguments for and against and that it should be left to the courts to
decide. What could be more modest than deciding that a constitutional
question should be decided by the courts and not the executive branch?
Yet I have heard on this floor and elsewhere her positions on this and
other issues mischaracterized as extreme, as out of the mainstream. In
my view, this position demonstrates her great respect for our judicial
process and proves that if this body confirms her to the bench, she
would fairly and faithfully apply precedent in making important
decisions on the DC Circuit.

She told us directly on the Judiciary Committee that she would
respect and apply precedent in other important cases--cases that touch
on the second amendment, such as the District of Columbia v. Heller and
McDonald v. Chicago, cases that held that the second amendment protects
an individual's right to keep and bear arms for self-defense. I am
confident, despite what we have heard spun in the press about Ms.
Halligan's position, that she would faithfully respect precedent in
these cases.
So in these two areas, I think we can see that Caitlin Halligan is
not a radical or an ideologue. She is an attorney, she is a lawyer--and
a good one. In my view, having reviewed her qualifications, having sat
through meetings, and having looked at her record, she has earned her
nomination to the DC Circuit Court. She deserves this Senate to get out
of the way and to stop this endless delay of consideration of qualified
candidates for the bench and let her get to work.
Today the Senate has an opportunity, a chance to do the right thing,
to stop endless partisan political games, to break through our gridlock
and get something done in the interest of the American people and
especially those who seek swift and sure justice.
Every individual and business in this country has the fundamental
right to a fair and fast trial, to access to the judicial system, and
to the hearing of their appeals in an appropriate and timely manner.
And judicial vacancies and understaffed courts at the district and the
circuit level are denying them that right. This Senate and its
dysfunction are denying them that right. So today I urge my colleagues
on both sides of the aisle to do our job, to confirm Caitlin Halligan
and recommit ourselves to moving forward in a productive and bipartisan
way.
Mr. President, 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. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, first let me compliment my colleague from
Delaware not only for his typically excellent remarks today but also
for his vigilance on these issues. He is a relatively newer member of
the Judiciary Committee, but he has jumped into these issues with
tremendous eagerness, intelligence, balance, and effectiveness. So I
thank him for his great remarks.
I too rise today in enthusiastic support of the nominee to the Court
of Appeals for the DC Circuit, Caitlin Halligan. Ms. Halligan has been
waiting 23 months for an up-or-down vote. More importantly, the entire
country has been waiting to fill this position--a judgeship on the
second most important court of the Nation--for 23 months.
The question we are going to answer tomorrow is, Can we take some of
our bipartisan good will, our desire to legislate and get things done
for the country, and apply it to a nominee who is the very picture of
moderation and mainstream legal thinking, a nominee who has dedicated
her entire career to public service, and a nominee who would be only
the sixth woman to join this court in its 212-year history? That is
right--there have only been five women to serve on the DC Circuit in
212 years.
The D.C. Circuit is currently one-third vacant. Four of its 11
slots--37 percent--are without active judges. Ms. Halligan is one of
the two nominees for these four slots.
Two years ago, when Halligan was first filibustered, many of my
colleagues decided they could not support a cloture motion because she
would have been the tenth judge on an 11-member court, a court they
perceived as understaffed and overworked. I take issue with the
fundamental premise. The D.C. Circuit hears many of the most complex
and important cases in the country. The court hears appeals from
virtually every regulatory agency, reviews statutes, has jurisdiction
over numerous terrorism cases, including those from Guantanamo Bay. But
even if I were to accept the faulty premise that the court somehow
needs fewer judges than it ever had, the court that hears the most
complex cases, the court is now near a crisis point. There are only
seven active judges currently sitting. What is more, the caseload per
judge has risen by 21 percent--21 percent since the last judge was
confirmed, and that was under President Bush's administration.
I think there is now more than compelling evidence that the caseload-
based argument against Halligan is gone, and you would have thought our
colleagues on the other side of the aisle

[[Page S1115]]

would say: OK, four vacancies, the last vacancy filled under Bush, we
can now move to support her. But they do not.
What else could possibly prevent a vote on Halligan? Is it her
ideology? I submit to my colleagues it cannot possibly be her ideology.
If zero is extremely liberal and 10 is extremely conservative, Halligan
falls right in the sweet spot of judges who both President Obama and
President Clinton have generally nominated, 5s and 4s, maybe even a 6
or two. Opposing Halligan on her ideology, opposing even a cloture vote
based on her ideology, can mean only one of two things:
First, that some of my colleagues have misread her record. Let me
clear up a few things today. Halligan is not anti-gun nor anti-second
amendment. She has clearly said at her hearing she fully supports the
individual second amendment right to bear arms as the Supreme Court
decided in Heller. Her briefs for the State of New York--which were
product liability cases, not second amendment cases--were briefs for a
client and not her own views, just as Chief Justice Roberts described
his work for clients. In fact, Hallligan, like many of my colleagues,
enjoys shooting and does so from time to time on weekends. Anyone who
accepted a meeting with her would have discovered this.
Halligan is not anti-law enforcement in any way. She spent most of
her career in law enforcement. New York Police Department Commissioner
Ray Kelly, hardly a shrinking violet, hardly a wallflower--he is a
tough-on-crime guy; that is why I like him so much, and he is one of
the most respected law chiefs in the country--has written a letter in
full support of her.
Specifically, Halligan has lived with the consequences of terrorism.
She lives not far from the World Trade Center site, and she represented
the Redevelopment Corporation there in its post-9/11 efforts. She has
personally handled terrorism cases in the New York Manhattan office. In
her hearing she stated her beliefs regarding the executive's power to
detain terrorism suspects.
I have heard evasive nominees. She was not evasive. She gave
completely clear answers to every single question that was asked.
The second possible reason my colleagues might decide to oppose
cloture for such a reasonable candidate and such a gifted lawyer is
that they want to put their own judges on the D.C. Circuit and they
would rather leave it vacant than move Halligan. In other words, it is
not that Halligan is extreme--unacceptably extreme in her views; it is
simply that she doesn't share all their views. It is one thing to fight
against certain judicial nominees with the sincere belief that they are
outside the judicial mainstream. It is another for my colleagues to
fight against a nominee because they disagree with him or her.
I always look for judges, when I nominate them, who are moderate. I
don't like judges too far right. That is obvious. But I equally do not
like judges too far left. My judicial panel will tell you, if I think a
judge is too far left I will not nominate them, because judges at the
extremes, whichever extreme, tend to want to make law, not interpret
law. The best judges are those who see things clearly and fairly, not
through an ideological lens, whether that lens is colored red or blue.
Those are judges who understand the law, understand the role of each
branch of government, understand the proper balance between State and
Federal power, and understand the people who come before the bench.
I say one other thing to my colleagues. I just finished working with
a bunch, four of us on each side, on coming up with a compromise so we
could work together better. I want to let my colleagues know--I have
done it personally with a few--that this vote, the desire to actually
filibuster Caitlin Halligan, is causing a lot of consternation on our
side. Clearly, this is a judge who deserves an up-or-down vote. One of
the reasons that many of my colleagues--myself included--thought we
ought to change the rules was because a judge such as Caitlin Halligan,
a nominee such as Caitlin Halligan, should not be filibustered. I have
respect for my friends on the other side of the aisle, but when they
say--one of my colleagues I heard say this morning--that this one brief
she signed with a bunch of others was extraordinary circumstances, that
did not ring true. If that is extraordinary circumstances, wearing the
wrong color tie or the wrong color blouse would be extraordinary
circumstances.
She has a long record. They can hardly find anything. They come up
with this one brief. They may not like it. But to say it is
extraordinary circumstances? No.
I say to my colleagues, I plead with them--we are trying to start off
on a good foot here. We are working together better than we have worked
in a long time. Each side has to give. Part of the deal is amendments.
They are going to get a lot of amendments on the other side of the
aisle. But part of our deal is not to block things for the sake of
blocking them or because there is another agenda. That goes not just
for blocking legislation but for blocking nominees.
It is true in the deal we made, the agreement we made, it was only
for district court judges. That could go seriatim. But the spirit of
our compromise applies to this court of appeals nominee, and I have not
heard a single good reason why she should be filibustered.
People disagree with her. I voted against some of George Bush's
nominees because I thought their views were not quite mine, even if
they were not extreme. And everyone on the other side of the aisle has
the right to do the same. But not filibuster.
This court is a very important court. We know it makes lots of
decisions about government. But that does not give license to block a
nominee on what seem to be trivial grounds, inconsequential grounds,
given her long career.
So again I urge, plead with my colleagues, please reconsider this
cloture vote. Please give her the 60 votes she needs so she can come to
the floor and get the up-or-down vote she has waited 23 months for. It
violates fairness. It violates the comity we are trying to restore in
this body. It violates simple justice to vote no on cloture and to
filibuster Caitlin Halligan.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I thank the Senator for allowing me to
go for 3 minutes here before he has the next turn. I appreciate that.
I come to the floor as some of our colleagues have done already, and
we just heard from the great Senator from New York, to discuss the
nomination of Caitlin Halligan to the D.C. Circuit Court. Caitlin
Halligan is currently the General Counsel at the New York County
District Attorney's Office. New York County is just another name for
Manhattan, so we are talking about a big county and a big office. In
fact, it handles about 100,000 criminal cases each year.
Before that, she was Solicitor General of the State of New York for 6
years and the head of the appellate practice at a major law firm. She
also clerked on both the D.C. Circuit and the U.S. Supreme Court and
has argued five cases in front of the U.S. Supreme Court. That is a
resume.
The nonpartisan American Bar Association committee that reviews every
Federal judicial nominee gave Halligan its highest possible rating, and
over 100 women law professors and deans wrote a letter saying Halligan
is exceptionally qualified to serve on the D.C. Circuit. There is no
question that she has the experience, ability, and intellect to sit on
the Federal bench.
It is also important to recognize that she is not an ideological or
partisan nominee. Well-known lawyer Carter Phillips, who was assistant
to the Solicitor General in the Reagan administration, has said that
Halligan is ``one of those extremely smart, thoughtful, measured and
effective advocates'' and that she would be a ``first-rate judge.''
Phillips is not the only conservative lawyer to endorse Halligan. For
example, Miguel Estrada signed a letter from 21 prominent attorneys
which stated that Halligan ``brings reason, insight and judgment to all
matters'' and ``would serve with distinction and fairness.''
Given support like that from people such as Miguel Estrada, I don't
think it can be said that Halligan is an extreme ideologue or that she
is outside the mainstream of legal thought. Her nomination should not
and cannot be blocked.

[[Page S1116]]

This is a great candidate who will make a great judge. As New York
City Police Commissioner Ray Kelly said about her, she ``possesses the
three qualities important for a nominee: Intelligence, a judicial
temperament and personal integrity.''
She must be confirmed without delay. Filibusters are about debating
issues. This is an individual. We cannot amend her. We simply have to
decide whether she is qualified to be on the bench. There is absolutely
no doubt. People may not agree with every single thing she said. I
don't think anyone in this Chamber agrees with every single thing that
judges have said or that people we put on the Supreme Court have said,
but we simply came together and stood up for one principle, that our
job is to decide if someone is qualified, if they can do the job, if
they can interpret the law. This candidate can do it and she can do it
well. If Senators ultimately wish to oppose her nomination, fine, that
is their choice. But they should not filibuster an extremely qualified
candidate. Let her have an up-or-down vote.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I ask unanimous consent for leave to engage
in a colloquy with Senator Barrasso for a period of time not to exceed
15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Sequestration

Mr. LEE. Mr. President, the President of the United States has spent
the last few weeks campaigning around our great country at taxpayer
expense, telling Americans about what he characterizes as the
catastrophic impact of the sequester. He said, for example, that the
sequester will visit hardship on a whole lot of people. He said it will
jeopardize our military readiness, it will eviscerate job-creating
investments in education and energy and medical research. He said the
ability of emergency responders to help communities respond to and
recover from disasters will be disregarded. Border Patrol agents will
see their hours reduced. FBI agents will be furloughed. He said Federal
prosecutors will have to close cases and simply let criminals go. Air
traffic controllers and airport security will see cutbacks, which means
more delays at airports across the country. He said thousands of
teachers and educators will be laid off and that tens of thousands of
parents will have to scramble to find childcare for their kids. And he
also continued: Hundreds of thousands of Americans will lose access to
primary care and preventive care such as flu vaccinations and cancer
screenings.
Today we see the predictions of doom and gloom have not come to pass.
We have seen that many of these statements have been severely
exaggerated, if not disproven. People in my home State of Utah have
found the effects of the sequester to be not quite what the President
predicted. One of our local Utah news stations reported that ``there
were no signs of sequester pain'' at the airports. When asked about
sequestration, one Utahn responded: ``If they can't handle a 2 percent
reduction in spending then I guess we need to get better and
brighter,'' meaning we need to get better and brighter people running
our government.
Other press reports indicate the administration's doomsday claims
have misled the public. The Washington Post reported that the Education
Secretary's claims about teacher layoffs turned out simply not to be
true. And Politico recently published a story showing the President's
claims about some capital staff getting pay cuts to be false.
I ask Senator Barrasso, after all these scare tactics over the last 2
weeks, does the President have a credibility problem with the American
people when it comes to the sequester?
Mr. BARRASSO. I believe my friend from Utah is absolutely correct.
There is a creditability gap here. These modest cuts should prompt
Washington to take a closer look at how we spend taxpayers' money. I
saw today that the White House is now--they claim because of the
sequester--canceling White House tours. It is astonishing when they say
they will not cut the personnel there in terms of the security, but
they will cancel the tours. I would invite people from all around the
country who are planning a trip to Washington to come to the Senate,
come to the House, and come to the Capitol. We will make sure they
receive tours if they would like.
Talk about a loss of credibility. The Washington Post evaluates
statements of folks, and over the last week they have given Pinocchios
for those who are not telling the truth. There has been a parade of
Pinocchios--a dozen of these Pinocchios that were given. One statement
is the President's false claim on Friday during his news conference
that Capitol janitors will be receiving a pay cut. They gave him four
Pinocchios for that. It is not true.
``The threat to free meals for seniors,'' there are Pinocchios there.
The false claim of pink slips for teachers by the Secretary of
Education, another four Pinocchios. There are two Pinocchios for the
claim that ``up to 70,000 children would lose access to Head Start and
early Head Start services.''
The Senator from Utah mentioned the concerns about the FAA with
furloughs and closed air towers. The verdict is still pending on that.
There is a parade of Pinocchios for the administration at a time when
the American people know so much of their taxpayer dollars are being
wasted.
I traveled around Wyoming this past weekend, and people at home think
that at least half of the money they send to Washington is wasted. It
is time now to take an opportunity to eliminate wasteful and
duplicative spending. We should streamline the Federal bureaucracy. We
should make government programs more efficient. We should be more
thoughtful in terms of how targeted cuts will work to ensure vital
programs continue without interruption.
At the end of the day, we should make sure taxpayers are getting
value for their hard-earned dollars. The administration does not see it
that way at all. Instead of promoting responsible spending, the
administration is promoting panic.
As Senator Lee pointed out, the administration is threatening the
American people with pink slips for teachers, cuts to airport security,
cuts to the Coast Guard patrols, cutting border patrol and enforcement,
closing national parks, cutting food safety inspections, eliminating
Head Start, Meals on Wheels, and the list goes on.
We need to be honest with the American people that we are $16.5
trillion in debt. That is not a threat; it is the truth. We can no
longer afford to ignore the truth. Washington is burying our children
and grandchildren under a mountain of debt, and if we don't treat
Washington's spending addiction, the problem is just going to get
worse. We must not allow the debt to tie the hands of future
generations and prevent them from reaching their dreams.
I believe we have to take responsibility for the reality we are
facing and we have to take action to change the course we are on. Of
course, that means difficult decisions have to be made, but these
decisions don't need to be reckless. They don't need to be dangerous.
They don't need to imperil our students, teachers, military, senior
citizens or our national security. They need to be smart, they need to
be targeted, and they need to maximize the value of each dollar spent
and minimize the risks and burdens to taxpayers.
I say to my colleague from Utah that instead of hitting taxpayers
where they will feel it the most, the administration has an obligation
and a responsibility to work hard to cut spending where the need is the
least. I know the leadership the Senator from Utah has shown on ``Cut
this, not that'' is something I think Americans would agree with
completely.
Mr. LEE. I thank my friend, Senator Barrasso. I find it interesting
that what the Senator has observed on the streets of towns such as
Evanston, Cheyenne, and Gillette in Wyoming is backed up by a recent
poll conducted by Gallup. That poll shows Americans understand that a
lot of money Washington spends is wasted. This Gallup poll shows that
the average American believes Washington wastes 51 cents out of every
$1 it spends--51 cents. More than half of every dollar that hard-
working Americans earn and send to Washington gets wasted.
Congress and the President should be working together to target,
reform, reduce, and eliminate wasteful spending

[[Page S1117]]

that the American people are noticing. They should be working to get
rid of and reform ineffective programs.
Meanwhile, the President is threatening to make cuts to government
spending as painful as it can possibly be. Instead of targeting waste,
the President is using scare tactics to persuade Americans that cuts
have to come first from important services such as law enforcement,
national security, border patrol, first responders, and educators.
Just today, the administration announced it was going to furlough
schoolteachers who educate the children of military families on U.S.
military bases, recognizing, of course, that most school systems are
operated at the State and local level. They are funded primarily at the
State and local level. The administration started focusing on educators
who teach on base to military families, suggesting that those teachers
would have to be furloughed.
Republicans have a better idea. The Senate Budget Committee--and in
particular the ranking Republican serving on the Senate Budget
Committee--has found that the cost of President Obama's recent golf
vacation with Tiger Woods cost Americans an amount of money that, if
saved, would have allowed us to prevent the furlough of 341 Federal
employees. Can the President cancel a vacation or two in order to avoid
some of these furloughs? That is the question that has prompted us to
start this information campaign that we refer to as ``Cut this, not
that,'' as depicted in this graphic.
This graphic shows under ``Cut this,'' golf vacations by the
President, and under the ``not that,'' it shows military base teachers.
That is what we should be focusing on. That is where we ought to
prioritize. We need to identify those areas where there could be a
lower priority attached to something we are already spending money on.
``Cut this, not that'' sends a message to the President and the
American people that Washington should be setting spending priorities
rather than wasting their hard-earned tax dollars.

I ask the Senator--through the Chair--how can it be that this
administration chooses to cut border law enforcement, first responders,
and educators instead of the fraud and waste that is so rampant in the
government?
Mr. BARRASSO. I appreciate the question. My friend is absolutely
correct. The cuts threatened by the administration simply defy common
sense and logic. Despite claims to the contrary, the President actually
does have a choice. He can take a thoughtful, reasoned approach to
implementing the sequester by cutting wasteful spending that we all
know exists or he can continue to threaten and scare the American
people with needless cuts to vital programs and services.
I put together a list of a few places where I would encourage the
President to look for reasonable cuts because there are so many
programs that are inefficient, ineffective or overlap with other
programs. There are over 80 economic development programs that operate
out of 4 different Cabinet agencies: the Department of Agriculture,
Commerce, Housing and Urban Development, and Small Business.
There are 173 programs promoting science, technology, engineering,
and math education across 13 agencies. These are important, but do we
need 173 programs when one department of the government doesn't know
what the other one is doing?
There are 20 agencies that oversee more than 50 financial literacy
programs. There are more than 50 programs supporting entrepreneurs
across 4 different departments of government. There are 47 different
job training programs. Is job training important? Absolutely. There are
47 different programs, 9 different agencies, and it cost $18 billion in
fiscal year 2009. Out of 47 programs, only 5 of them have had an impact
study completed since 2004 to see if they actually work and whether
participants in the program actually get a job. These have not been
reviewed since 2004. Do we know they work? Do we need 47? Could they be
improved upon?
We are looking at this sequester. The President proposed this
sequester. The President signed the sequester into law, and now he
claims he cannot live with the effects. I am here to say he is wrong.
Responsibly implementing the cuts from the sequester is not only
possible, I believe it is necessary, as we see here: ``Cut this, not
that.''
This debate is not about--as we read in the Washington Post--the
President trying to force it to an election to the House of
Representatives in 2014, it is about the economy and the future of our
country. It is not just about smaller government, it is about smarter
government. People think they are not getting value for their money.
I believe it is past the time for Washington to take the smarter
approach to our Nation's spending addiction, and I appreciate the
leadership of the Senator from Utah.
Mr. LEE. I thank the Senator. It is important for us to recognize
that all these observations draw back to one central conclusion, which
is that the sequester and wasteful spending we see so rampant
throughout our Federal Government is the natural product of the failure
by the majority leadership in the Senate to work with Republicans to
pass a budget.
Last year, in the Senate, Republicans proposed 3 different budgets
and received as many as 42 votes. That is 42 more votes than the
President's budget received in this body last year or the year before
or in the House last year or the year before.
The majority party in the Senate--those in charge of this body and
elected to lead in this body--have refused even to propose a budget for
the country for more than 1,400 days.
We have spending priorities. I am sure my friends across the aisle
have spending priorities as well. It is time we do the right thing for
the American people. We need to sit down and have an open and honest
dialog with the American people and with each other. We need to hammer
out these ideas and come up with a budget that fairly and accurately
represents the priorities of the American people. We need to pass a
budget, and I urge my colleagues to do so.
I thank the Chair.
I yield the floor.
Mr. BARRASSO. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Warren). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. COBURN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. Madam President, I ask unanimous consent to speak as in
morning business for such time as I may consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. Madam President, I also ask unanimous consent to use an
oversized poster.
The PRESIDING OFFICER. Without objection, it is so ordered.

Government Waste and Duplication

Mr. COBURN. Madam President, there has been a lot made of the
sequester and the things that may or may not happen associated with it.
Having spent the last 8 years looking at the Federal Government, I
wrote the Secretary of Agriculture a letter this week outlining some
things they could do that would not put in jeopardy food inspection and
other things.
In my 8 years of looking at the Department of Agriculture, there is
extensive waste and duplication--the GAO has confirmed that--and those
things should be cut first and eliminated and consolidated before
staffs that are in critical positions are furloughed.
The USDA currently has 120,000 employees, and they have over 16,000
offices. Just thinking about 16,000 offices ought to give us some
pause. Why would any agency, no matter what their requirements, need
that number of offices? The agency notes on their Web site that if they
were a private company, they would be the sixth largest private company
in America. That is how big the USDA is and how diffusive.
Today, there is one USDA employee for every eight farmers--one USDA
employee for every eight people employed in the farm area--or, overall,
one USDA employee for every 18 farms, primary or otherwise. So weekend
farmers have a USDA employee, and for regular farmers--people where it
is their primary business--there is an employee for every eight of
them.

[[Page S1118]]

At the end of 2012, USDA was sitting on $12 billion in unobligated
Federal balances. In other words, that is money that is sitting in an
account that has not been obligated to any purpose, sitting there
waiting to be spent, where we have borrowed money--$12 billion--that
they have not obligated.
One of the things my staff has discovered is the USDA has upcoming
conferences in terms of food tasting and wine tasting on the west
coast. Now, in normal times there would not be anything wrong with
Federal employees traveling to the west coast to both encourage and
assess where we are in terms of some of our agricultural production.
But I would think maybe this is one of the things the U.S. Department
of Agriculture ought to cancel, given where we are and the threat that
has been put out there in terms of food safety that has been announced
in terms of layoffs or time off for Agriculture Department employees.
Two USDA agencies--Rural Development and the Agricultural Marketing
Service--are sponsoring the 26th annual California Small Farm
Conference next week. In addition to speakers from the USDA agency, the
gathering will feature field trips and tasting receptions. ``The
Tasting Reception,'' according to their Web site, ``is the most well
attended networking event of the conference and showcases the regional
bounty from local farms, chefs, wineries, breweries, bakeries and other
food purveyors.'' And ``special guest chefs will turn donated local
agriculture products into tasty dishes to sample with exceptional local
wines [provided].''
There is nothing wrong with that in normal times. There is plenty
wrong with sending multiple employees to these types of conferences
when we find ourselves in the position we find ourselves in today.
These conferences, I am sure, are fun, interesting, and even
educational getaways for USDA employees, but food inspecting rather
than food tasting should be the USDA's priority at this time.
Not just to pick on them, but the thing is Americans are not aware of
how expansive and duplicative many of these programs are. In the
domestic food assistance programs, as shown on this chart, this is what
GAO shows us we have running: 18 different Federal programs across
three Departments that spend $60 billion a year.
According to the GAO, the availability of multiple programs with
similar benefits helps ensure that those in need have access to
nutritious food, but it also does increase the administrative costs of
these programs.
So while our goal is great, with the fact that we have this many
programs doing essentially similar work with similar overheads, the
GAO's recommendation was to do consolidation. Fifteen of these programs
are run by the Department of Agriculture, ranging from SNAP to the
Fresh Fruit and Vegetable Program and the Special Milk Program.
According to the GAO, the effectiveness of 11 of these 18 programs is
suspect. The reason it is suspect is nobody has done any oversight. No
Member of Congress has done oversight on it--not the Budget Committee,
not the Appropriations Committee, nor the Agriculture Committee.
We also have inside the USDA research and education activities within
the Rural Development programs that duplicate, predominately, existing
programs of almost every other agency in the Federal Government. Let me
say that again. Almost every one of these programs is duplicated in
another agency of the Federal Government. In other words, we are
layering. They both have the same goals, the same hope for outcomes.
One is run by one agency. Here are the ones that are run just by the
USDA.
According to GAO, the Rural Development program administers 40
housing programs, business, community infrastructure and facility
programs, as well as energy, health care, telecom programs, most of
which duplicate the initiatives of other agencies, yet under the guise
of serving exclusively rural citizens. Rural populations are not
excluded from the other programs which are run with the same purpose
that serve the general population. According to the Congressional
Research Service, more than 88 programs administered by 16 different
Federal agencies do the exact same thing these programs do. So we have
88 other programs from 16 different Federal agencies that are targeting
rural economic development and needs.
It is not hard to see why we are in trouble. The GAO has done the
work we have asked them to do. The appropriate committees have not
addressed any of these issues. They have not offered any amendments or
bills to reduce, consolidate, or at least look at the outcomes and the
cost-benefit ratio of having multiple layers of programs doing the same
thing.

Let me give you some questionable expenditures of what we have seen
in the last year: a $54 million loan to build a casino; $1.6 million in
loans for an asbestos removal company. It created hundreds of jobs in
Guatemala and eventually went out of business and defaulted on the
loan. There is $2.5 million in low-interest loans for the construction
of the Smithsonian-style Birthplace of Country Music Cultural Heritage
Center; a Tennessee county spent $10,000 of a Federal Rural Development
grant to upgrade its tourism Web site; $12,500 went to Milk And Honey
Soap, LLC for the marketing of soaps and lotions made from goat's milk
and beeswax. These are private businesses, and we are taking taxpayer
money, or we are borrowing the money, and we are subsidizing private
individual businesses with grants.
We also have within the USDA research and education activities: the
National Institute of Food and Agriculture spent $706 million last year
on research and education activities through more than 45 different
programs. Meanwhile, their Agricultural Research Service has budgeted
$1.1 billion annually and is home to an additional eight Federal
research and educational activity programs.
So what we have is layer after layer after layer--most of them well-
intentioned. I am not denying that some of these are significant roles
of Federal Government. But Congress is the problem because we have not
addressed any of the recommendations the Government Accountability
Office has given us in the two reports thus far, and the final report
that will come out this year on overlap and duplication.
Finally, I wish to talk about the USDA's Market Access Program. At
the request of Congress, the U.S. Department of Agriculture spent more
than $2 billion on the Market Access Program, which has directly
subsidized the advertising of some of the most profitable companies and
trade associations doing business overseas. So we are subsidizing
companies such as Welch's, Sunkist, and Blue Diamond. The combined
sales are greater than $2 billion a year, and we gave them $6 million
last year to advertise their products.
It is one thing to promote exports, but we do not do that with every
other business in America. Not every business that has $2 billion in
sales gets $6 million of the Federal taxpayers' money to promote their
products overseas.
So we have this disparity. I do not know if this is good policy or
bad policy. What I do know is, it is discriminatory in terms of how we
treat one group of businesses versus another group of businesses.
Also receiving money from the taxpayers for private overseas
advertising are trade groups such as Tyson Foods, Purina, Georgia
Pacific, Jack Daniels, Hershey's, the California wine industry. They
have domestic sales of $18 billion a year. They took in $7 million to
promote their products overseas. The Cotton Council, on behalf of
America, received $20 million from the Market Access Program and
another $4.7 million from the USDA Foreign Market Development Program.
So I come to the floor so the American people can see that we have
plenty of ways to save money. What we have is an intransigence in
Congress to do the hard work and also an intransigence by the
administration to recognize the need to lead on eliminating these areas
of duplication.
Last week on the floor, I put a letter into the Record from the mayor
of McAlester, OK. The Presiding Officer is a native of Oklahoma. She
knows that town. He had a budget shortfall. He outlined the steps he
went through with the help of the city manager to meet that. They did
it in a way we would all be proud of. He gave us an example.
Today I ask unanimous consent to have printed in the Record a letter

[[Page S1119]]

from the mayor of the Los Angeles County Board of Supervisors in terms
of what they have done.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Board of Supervisors,

County of Los Angeles,

Los Angeles, CA, April 29, 2011.
Hon. Tom Coburn,
Senate Russell Office Building, U.S. Senate,
Washington, DC.
Dear Senator Coburn: I commend you and your colleagues with
your bipartisan effort to reduce spending, taxes, debt and
forge a more streamlined and ``right size'' a cost-effective
federal government.
While Los Angeles County's $23.5 billion budget pales in
comparison to the United States budget, some of the
successful reforms implemented by our County Board of
Supervisors could result in similar results for the federal
budget.
Since 70-80% of the federal budget consists of personnel
compensation, productivity and efficiency can be improved by
consolidating and eliminating agencies, programs and
personnel with duplicative or overlapping functions. Every
federal department and agency should be evaluated, services
prioritized, programs streamlined and all waste eliminated.
Many federal agencies and departments have traditionally
inflated their budgets with unfilled positions. Those that
have been vacant for more than 12 months should be
eliminated. Employees who have left their positions due to
injury or illness need to be aggressively pursued to ensure
that their conditions are legitimate.
It is also vital to reform the civil service process and
the public employee pension system. Some states are adopting
forward-thinking reforms including reducing pension benefits
for new hires and establishing a defined benefits program for
current employees.
These common sense solutions have allowed us to
consistently balance our County budget and could serve as
guidelines in your effort to ``right size'' the federal
government.
Best regards,
Michael D. Antonovich,
Mayor, Los Angeles County.

Mr. COBURN. This was a letter I received in 2011 when we started
raising the issue of duplication and making tough choices so that we
could continue to provide benefits, we could continue to create and
support a safety net for those who were truly dependent on it, but we
do not waste money we do not have, spending it on things we do not
absolutely need.
I would put forward that when we have a multitude of programs and
they overlap, we as Members of Congress do not have an excuse for not
fixing that, because the things that are critical in people's lives
eventually are going to suffer. Every dollar we spend on low-priority
duplication, every dollar we spend that does not have a metric to say
it is doing what it is should be doing is eventually going to be a
dollar that is not there to support a food stamp recipient or a
Medicaid recipient or housing for the indigent or care for the homeless
or implementing Justice grant programs for policing and tribal courts.
So it is not a matter of just solving the duplication problem, it is
a matter of the arithmetic that is going to hit our country and that by
delaying the time at which we decide we are going to address this
multitude, which is now 1,400 programs through the first 2 years of
reports from GAO and $367 billion of expenditures--and that does not
count the other $800 billion that goes out of the Federal Government
every year for grants that also address some of these same issues. So
the time is now. Sequestration gives us a good time to start looking at
priorities.
One of the things I am thankful for is that we have tremendous
Federal employees. We are starting to hear them speak up now: What can
be cut? What is wasteful? They now feel the freedom to not be
criticized because they are going to take a critical eye to the way
American taxpayer dollars are being spent in their own agency. We are
starting to hear from them: Here are things we are doing that we should
not be doing. Here are things that are not a priority. Rather than lay
off a meat inspector, maybe we ought to do this: ``Cut this, not
that.'' You know, we ought to cut out wine tastings for Federal
employees and keep the meat inspectors employed.
There is no reason we need to furlough the first--with the waste in
the Department of Agriculture, there is no reason that any significant
program in the Department of Agriculture ought to suffer a furlough or
layoff. There is no reason for it because there are billions of dollars
there that are not wisely spent--well intended, not questioning motive,
but poorly spent with poor return.
When there are two programs doing the same thing, let me describe
what happens on the beneficiary end of that. People do not know where
there is a need. What the requirement is in one program is a different
requirement in another program. In terms of duplicative grants, what we
have is people who apply for a grant and get it from one arm of the
Department of Agriculture and then go over here and make the same
application from another arm of the Department of Agriculture, get the
same grant, and then go to one of the other agencies that is doing the
same thing and get another grant for the same thing--all of them not
knowing that each has given a grant for the same purpose. So it is just
not good business practices, it is not good management, and it is not
good stewardship for the future of our country.
So I would ask my colleagues to think about the great work the
Government Accountability Office has done. They have done great work
for us. We have failed to act on it. It is time we start acting. Come
April 1, we will see the final report from the GAO where they now--over
4 years--will have looked at every program in the Federal Government.
They are going to be able to give us a list. I have come out here with
my big charts and shown the list of duplications. We are going to have
three or four more charts that say the same thing. Think about how
discouraging it is to the people at GAO who do all of this hard work
and to the people who are trying to meet the needs in the individual
agencies to know that we are actually duplicating things with poor
results.
We are not meeting our requirements under our oath. We are not
meeting the moral requirements to be prudent with the American
taxpayers' money. In the long run, the people who will suffer for it
will be the very people we intend to help because if, in fact, we do
not respond in a way that creates a positive vision for our country in
terms of growth again and a positive vision in terms of responsible
behavior by Congress, ultimately the arithmetic swallows us up.
I will close with this: If you take today's budget, when the Federal
Reserve starts unwinding the quantitative easing they have done--these
very low, artificially low interest rates--or if something were to
happen where the world economy would look at us and say: We do not
think you are deserving of our AAA-minus rating--the difference in
interest costs historically is about 3 to 4 percent. Let's take a
conservative estimate; let's say it is 3. Our historical average is
5.83 percent, what we have borrowed money at historically over the last
50 years. We are borrowing at under 2 percent right now. Three percent
times $17 trillion is $510 billion a year. We all lose when that
happens. How do we lose? Because the dollar we are going to be spending
on that additional interest cost is a dollar that is not going to help
someone who is homeless, it is a dollar that is not going to provide
food that needs to be provided for those who are depending upon us, and
it is a dollar that is not going to go to match the FMAP for Medicaid.
Consequently, the cuts we will make then will be much harsher than the
cuts if we decide to do it proactively now.
You do not have to have partisan disagreement about the goal of a
program, but certainly we should be able to come together and say: We
do not want duplication. We want to have good outcomes. We want to put
metrics on it to measure it to see if it is working.
There cannot be any disagreement on that. That is plain, good-old
common horse sense. Yet there has been no action in 3\1/2\ years on any
of these recommendations by the Government Accountability Office. Now,
the administration has paid attention. I will give them credit. In a
lot of areas where they have seen it, they have done what they can do,
but we have not. I do not want the heritage of my time in the Senate to
be when we were the Congresses that failed to meet the challenge.
I believe our country can cheat history. If you look at history, it
is not great for republics. They have all failed. But we have the
opportunity to cheat history, and the way we do it is by getting off
our rears and starting to

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do the job we were sent up here to do, which is oversight and legislate
the elimination of waste, abuse, and duplication. We can do that, but
it requires leadership. It requires leadership on the part of Senator
Reid, on the part of Senator McConnell, every committee chair, every
ranking member. It requires leadership that we are going to do that.

I am proud to say that Tom Carper, chairman of Homeland Security--we
have a plan to oversight all of homeland security over the next 4
years, the whole thing, and the rest of the government as well because
we do not really believe the rest of the committees are going to do it.
So we are building our staffs for oversight to grab this information,
to make cogent recommendations and legislation, where we can, that will
actually address these problems. We are way past the starting point of
when we should have begun. It is not too late, but it requires us to
make a decision: Are we more interested in the parochial benefits of
allowing programs that are not effective or duplicative to continue to
run because we will not get any blowback or are we courageous enough to
say that we are going to do what is right for the right reasons for the
long-term well-being of our country?
I believe that is the feeling of most of the Members of the Senate. I
just think we need the leadership to call us back.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. LEE. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEE. Madam President, I rise today to speak in opposition to the
nomination of Caitlin Halligan to be a circuit judge on the U.S. Court
of Appeals for the District of Columbia Circuit.
The D.C. Circuit is arguably the most important Federal appellate
court in our country's judicial system, with primary responsibility to
review administrative decisions made by many Federal departments and
executive branch agencies. It has also served, in many instances, as a
stepping stone of sorts for judges later appointed to the U.S. Supreme
Court. As a result, the Senate has a longstanding practice of carefully
scrutinizing candidates to the D.C. Circuit.
When evaluating particular nominees, we also carefully consider the
need for additional judges on that very court. In July 2006 President
Bush nominated an eminently qualified individual named Peter Keisler to
fill a seat on the D.C. Circuit. Mr. Keisler, whom I know personally,
is among the finest attorneys in the country and is also among the
finest individuals I know. Because of his nonideological approach to
the law, Mr. Keisler enjoys broad bipartisan support throughout the
legal profession. Despite these unassailable qualifications, Democratic
Senators blocked Mr. Keisler's nomination. He did not receive any floor
consideration whatsoever, not even a cloture vote, and his nomination
languished in the Judiciary Committee. At the time a number of
Democratic Senators sent a letter to the Judiciary Committee chairman
arguing that a nominee to the D.C. Circuit ``should under no
circumstances be considered--much less confirmed--before we first
address the very need for that judgeship.'' These Senators specifically
argued that the D.C. Circuit's comparatively modest caseload in 2006
did not justify the confirmation of an additional judge to that Court,
even though this was a position that by law already existed.
More than 6 years have passed, and Ms. Halligan has been nominated
once again to that very same seat on the D.C. Circuit--the same seat
for which Peter Keisler was nominated--but the court's caseload remains
just as minimal as it was then. According to the Administrative Office
of the U.S. Courts, the D.C. Circuit caseload is so light that the
number of appeals pending per judicial panel is 54 percent less than
the average for Federal courts of appeal. With just 359 pending appeals
per panel, the D.C. Circuit's average workload is less than half that
of other similar appellate courts.
The D.C. Circuit caseload has actually decreased since the time
Democrats blocked Mr. Keisler. Indeed, since 2005 the total number of
appeals filed is down over 13 percent. The total number of appeals
pending is down over 10 percent. Some have sought to make much of the
fact that since 2005, two of the court's judges have taken senior
status, leaving only seven active judges on the D.C. Circuit today. But
the court's caseload has declined so much in recent years that even
filings per active judge are only slightly higher than they were in
2005. Of course, that does not account for the six senior judges on the
D.C. Circuit who continue to hear appeals and offer opinions on a
regular basis. Their contribution--the contributions of the senior
judges on that court--is such that the actual work for each active
judge has declined and the caseload burden for D.C. Circuit judges is
less than it was when Democrats blocked Mr. Keisler on the basis of a
declining, insufficient caseload.
Indeed, the average filings per panel--perhaps the truest measure of
the actual workload per judge in the U.S. Court of Appeals--is down
almost 6 percent since that time.
In each of the last several years, the D.C. Circuit has cancelled
regularly scheduled argument dates due to the lack of pending cases.
Those who work at the courts suggest that in reality the workload isn't
any different today than it has been in the past.
According to the Democrats' own standards, and particularly when
there are judicial emergencies in other courts across the country, now
is not the time to confirm another judge to the D.C. Circuit. It is
certainly not the time for us to consider confirming a controversial
nominee with a record of extreme views with regard to the law and the
Constitution.
Make no mistake, Ms. Halligan is not what we would call a consensus
nominee. The Senate has already considered and rejected her nomination.
Nothing material has changed since that time.
Many of my colleagues have discussed a wide range of Ms. Halligan's
views, so I will limit myself to one example. In 2003, while serving as
Solicitor General for the State of New York, Ms. Halligan approved and
signed a legal brief arguing that handgun manufacturers, wholesalers,
and retailers should be held liable for criminal actions that
individuals commit with those guns. Three years later, in 2006, Ms.
Halligan filed another brief arguing that handgun manufacturers were
guilty of creating a public nuisance.
Such arguments amount to an invitation for the courts to engage in
sweeping judicial activism. The positions she took are both bewildering
and flatly inconsistent with the original understanding of the second
amendment rights all Americans enjoy.
In conclusion, as measured by the Democrats' own standards and their
own prior actions, now is not the time to confirm another judge to the
D.C. Circuit, and it is certainly not the time to consider such a
controversial nominee for that very important court. The Senate has
already spoken and rejected Ms. Halligan's nomination. I urge my
colleagues once again to oppose her confirmation.
Mrs. BOXER. Mr. President, I rise today to vigorously support the
confirmation of Caitlin Halligan to the D.C. Circuit Court of Appeals.
Ms. Halligan is an exceptionally qualified nominee, and the D.C.
Circuit needs her. I urge all my Senate colleagues to join me in voting
for her.
The breadth and depth of Ms. Halligan's legal experience and
expertise are very impressive. After law school, she clerked for
Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on the
D.C. Circuit, the court to which she has been nominated. She continued
her public service as the solicitor general of the State of New York
for 6 years, spent some time in the private sector, and is currently
general counsel at the New York County District attorney's office, an
office that investigates and prosecutes 100,000 criminal cases annually
in Manhattan. Throughout her career, Ms. Halligan has served as counsel
of record in nearly 50 matters before the U.S. Supreme Court, arguing
five cases before that court and many cases before Federal and State
appellate courts. Her legal and oral advocacy training is as extensive
as any nominee that the Senate has confirmed.
One of the reasons I wanted to speak about Ms. Halligan today is
because

[[Page S1121]]

her reputation precedes her. The American Bar Association's nonpartisan
standing committee on the Federal Judiciary unanimously rated Ms.
Halligan ``well-qualified'' to serve on the D.C. Circuit, the highest
possible rating. Messages of support for her nomination have poured in
from hundreds of female law school deans and professors, former U.S.
Supreme Court clerks and current judges, preeminent lawyers across the
political spectrum from Ronald Reagan's solicitor general to the
legendary D.A. Robert Morgenthau, and law enforcement associations. Put
simply, this woman has proven herself to be worthy of our vote and the
public's trust.
But there is another reason we must confirm Ms. Halligan today: the
unacceptable delay in her nomination is causing a growing gap in the
D.C. Circuit Court of Appeals. Ms. Halligan was first nominated by
President Obama three years ago. Now, this important court in our
country--often called ``the second most important court in our land''
because of the high profile, complex cases it handles--is one-third
vacant. The caseload for the existing judges is growing, and justice is
being held up.
Finally, if confirmed, Caitlin Halligan would become only the sixth
female judge in the D.C. Circuit's 120-year history, a change I would
certainly welcome for this important court. We need to continue
building on the important legacy of diversity and inclusion that
President Obama has established by nominating record numbers of women
to the Federal bench. Thanks to his leadership, women today make up
roughly 30 percent of the Federal judgeships at every level for the
first time in history: in trial courts, courts of appeal, and the
Supreme Court. This diversity bolsters the legitimacy of our court
system, and the public's confidence in it. We should continue this
progress by confirming Ms. Halligan.
For all these reasons, I look forward to voting for Caitlin
Halligan's nomination to the D.C. Circuit Court of Appeals, and I urge
my colleagues to do the same. Let's fulfill our constitutional
obligation to keep our judicial system working efficiently and fairly
for the American people.
I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Donnelly). Without objection, it is so
ordered.

____________________