[Congressional Record Volume 159, Number 101 (Tuesday, July 16, 2013)]
[Senate]
[Pages S5701-S5705]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Health Care Reform

  Mr. BARRASSO. Mr. President, there has been some confusion about the 
President's health care law recently, so I come to the floor to try to 
clear up one point.
  Just before the Fourth of July holiday, the Obama administration 
admitted to the world that its health care law is not working out 
according to plan. It did it in an unusual way--in a blog post--right 
before the Fourth of July holiday, but yet it is known to the world. By 
choosing to delay the law's employer mandate, the President conceded it 
would place a tremendous burden on America's job creators.
  Then, just this past Sunday, the Senate majority leader went on 
``Meet the Press,'' on television, and said: ``ObamaCare has been 
wonderful for America.'' Wonderful for America? Senator Reid's comments 
demonstrate once again that Democrats in Washington--the people who 
voted for this law--are not listening to the American people.
  I hear it when I return home to Wyoming every weekend. I did this 
past weekend. I hear it as Members of the Senate do when they talk to 
friends from home. I heard it today from people from Gillette and 
Evanston and Cody that this health care law is unraveling. So I just 
want to make a couple of things clear to everyone.
  After 3\1/2\ years, we know the Obama health care law is not working. 
It is a train wreck. If the law was wonderful, it wouldn't increase 
premiums. It wouldn't shrink paychecks. It wouldn't discourage job 
creation. If the law was wonderful, we wouldn't put the feared IRS as 
the enforcer of the health care law. If the law was wonderful, the 
administration wouldn't have delayed one of its most critical parts. It 
is clear to me that even President Obama does not share Senator Reid's 
opinion that the health care law is wonderful.
  This law is not wonderful for America. It is obviously terrible for 
America's job creators. It is also terrible for many people trying to 
make a living in this country.
  There was an article on the front page of the New York Times 
recently--Wednesday, July 10--with the headline: ``At Restaurant, Delay 
Is Help on Health Law.'' The delay is a help.
  This article--front page, above the fold of the New York Times--
looked at

[[Page S5702]]

a small Maryland restaurant called the Shanty Grille. What is going on 
at that restaurant makes the case better than any actuarial study, any 
sort of charts or any economic model ever could because it is a story 
about real people and their lives. The article talked about how the law 
was hurting everyone from the owner of the restaurant to the uninsured 
waiter, to the chef who has insurance. All of them were hurt by this 
health care law. Because for each of these people and for millions of 
others similar to them across the country, the reality of health care 
reform is that it has fallen far short of the President's many 
promises.
  According to this article in the New York Times, the restaurant's 
owner is on a pace to finally this year turn a profit. It will be the 
first profit since the economic downturn a number of years ago. Four 
years after the recession ended, he is finally set to recover and get 
back into the black. If he has to provide expensive Washington-
approved, Washington-mandated health insurance for every employee, 
though, that profit will quickly evaporate. So that would certainly 
harm this employer.
  What about the employees? Let's talk about the people this is 
designed to help. It turns out the younger workers at the restaurant 
actually aren't too interested in having this health insurance 
coverage. They say they would rather have more money in their paychecks 
so they could decide how they want to spend it, not how the President 
thinks they should spend it. So they stand to lose out once the law's 
individual mandate starts in January because they are going to have to 
go out and buy insurance which may be much more than they want or need 
or can afford.
  The employees at the restaurant who already have health insurance are 
worried too. They are concerned they will not be able to keep their 
current coverage. When the President stopped his disastrous employer 
mandate, I believe he actually made the right decision, but I have some 
doubts about his reasoning. I think this was purely for political 
reasons.
  Regardless of how and why the President made the decision, a 1-year 
delay in this one policy doesn't solve the problem; it only extends the 
problem.

  First, this restaurant and other small businesses can't afford and 
can't expand or hire more staff because they still face the mandate in 
2015. Actually, the final line in this article on the front page of the 
New York Times, when we carry over and read the end of it, says: We are 
not going to expand. ``No more expansion.''
  Second, many businesses are cutting back workers to part-time status 
because of the health care law. President Obama has had nothing to say 
to those Americans looking for full-time work but trapped in a part-
time job, and part-time is defined by the health care law, which is 
different than most Americans think of or define part-time work.
  Third, the law still requires all of the employees, as with nearly 
everyone else in America, that they have to buy pricey health insurance 
starting January 1. That is a problem for the President and he knows 
it.
  Here is how an article in Politico put it this past weekend. This 
article is entitled ``ObamaCare's Missing Mandate.'' It says:

       The massive coast-to-coast campaign to get people to sign 
     up for ObamaCare is light on mentions of one central element: 
     The widely disliked individual mandate.

  The Politico article goes on to say:

       Poll after poll has found that Americans don't like being 
     told they have to get insurance or face a penalty. So the 
     groups doing outreach don't plan to draw much attention to 
     it.

  The employer mandate has collapsed. The individual mandate is 
unpopular, so they just don't want to talk about it.
  A lot of the people who do have to buy this new Washington-mandated, 
Washington-approved insurance will have to buy it through the 
government exchanges. Of course, these may not be ready on time. There 
are 77 days left for these to be ready. Even if they are up and running 
by the deadline, we have seen ample evidence that premiums will be much 
higher than they were before the mandate. That is especially true for 
young healthy adults who the President expects to pay more in order to 
help older sicker people pay less. But a lot of younger healthier 
people are going to have to pay more for that one older sicker person.
  These weren't the kinds of reforms Democrats promised when they were 
forcing this plan through Congress on strictly party-line votes. During 
the debate, Republicans made suggestions to improve the health care 
law, but we were shut out of the backrooms where the Democrats struck 
their deals.
  In the end Democrats drafted their law so badly that the negative 
side effects and unintended consequences were inevitable. The New York 
Times article shows how some of these side effects are hurting millions 
of Americans--not just those working at the restaurant, including the 
restaurant owner, in Maryland.
  We all know President Obama likes to hold photo ops with people who 
he says are helped by the law. It is time for him to meet with people 
such as the ones featured on the front page of the New York Times--
people who are being hurt by his health care law. It is time for the 
President to sit down with both Democrats and Republicans to truly talk 
about how we can reform health care in this country. Delaying the 
employer mandate for 1 year is not enough. It doesn't eliminate the 
burdens of this costly law.
  The House is scheduled to vote this week to delay the individual 
mandate. The Senate should do the same. It is time for the President 
and for Senator Reid to listen to the victims of ObamaCare.
  President Obama was right to recognize his health care law is not 
working out. Senator Reid was totally wrong because ObamaCare is not 
wonderful for America. It is turning into a costly failure. The only 
appropriate course at this point is to permanently delay implementing 
the rest of the law and to replace it with reform that works.
  I thank the Chair. I yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CRAPO. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAPO. Mr. President, earlier today the Senate held a first of a 
series of cloture votes on controversial nominations by voting to 
invoke cloture on the nominee to be the Director of the Consumer 
Financial Protection Bureau. This agency is unlike any other Federal 
agency. Under its current structure, the CFPB has very broad discretion 
but very little in terms of executive or congressional oversight.
  It is not a debate about whether Republicans in the Senate support 
consumer protection, as some would portray it. Both sides agree 
everyone benefits from a mortgage industry and marketplace free of 
fraud and other deceptive, exploitive practices.
  Republicans did not object to consumer protection when it was placed 
in each of the prudential banking regulators. In fact, bills aimed 
specifically at consumer protection passed with an overwhelming 
majority in the Senate. The Fair and Accurate Credit Transactions Act 
of 2003 passed 95 to 2, and the Credit CARD Act of 2009 passed 90 to 5.
  During the Dodd-Frank debate, the key point of contention was not the 
value of consumer protection but, rather, the Bureau's design.
  One of the lessons of the financial crisis is that we need a 
supervisory program that looks and considers how safety, soundness, and 
consumer protection work together to create a better functioning 
financial system. What Republicans have been asking for is that the 
Bureau be restructured in the same way as other similarly situated 
financial regulators, with accountability and transparency to Congress 
and to the taxpayers.
  As outlined in two letters to the President sent by Republican 
Senators in May 2011 and this past February, the changes highlighted 
are not new. In fact, they exist in the current Federal regulatory 
landscape. One of the key changes we seek is the establishment of a 
board of directors to oversee the Consumer Financial Protection Bureau 
with staggered terms.
  This is the structure of the Securities and Exchange Commission, the

[[Page S5703]]

Commodity Futures Trading Commission, the Consumer Product Safety 
Commission, the Federal Trade Commission, the Federal Deposit Insurance 
Corporation, and the Federal Reserve.
  A board of directors would allow for the consideration of multiple 
viewpoints in decisionmaking and would reduce the potential for 
politicization of regulations.
  Indeed, the administration originally supported a board of directors 
for the Bureau. In 2009, the Obama administration proposed a stand-
alone Consumer Financial Protection Agency with a board of directors 
funded through the congressional appropriations process. The Bureau 
also should be subject to the congressional appropriations process, 
rather than, as the Dodd-Frank legislation did, to fund it through the 
Federal Reserve with no review by Congress.
  While Mr. Cordray stated that he would come and testify before the 
Appropriations Committee, this is quite different than Congress being 
able to oversee how the monies that the agency utilizes are spent. For 
example, the CFPB intends to spend close to $100 million to renovate 
its current headquarters. This amount is double the amount that the 
Government Services Administration has for property acquisition and 
renovation in any 1 year.
  Finally, consumer protection cannot and must not be detached from 
prudential regulation. Although the Bureau must consult with other 
prudential regulators before finalizing its rulemaking, the Bureau can 
simply disregard their advice.
  By establishing a solid safety and soundness check for prudential 
regulation, the link and coordination between prudential supervision 
and protection would be strengthened by allowing potential regulators 
to provide meaningful input into the CFPB's actions and proposals. Such 
collaboration will only strengthen our financial system, not weaken 
consumer protection.
  Without it, the CFPB and prudential regulators may issue rules that 
result in confusion for the regulated entities, as has already been the 
case with conflicting guidance for private student loans, and the many 
questions raised by the qualified mortgage final rule.
  The Dodd-Frank solution was to have the Financial Stability Oversight 
Council review certain CFPB actions, but it set the threshold at two-
thirds of the FSOC members. This very high threshold before the FSOC 
can act renders its veto virtually meaningless.
  Since the beginning of this year, I have encountered a number of 
items with the CFPB that are a cause of concern and warrant greater 
scrutiny, but it is the Federal agency's data collection initiative 
that is the most disturbing to me. Recently, we learned from press 
accounts--not from the agency but from press accounts--that the CFPB 
was spending tens of millions of dollars to collect Americans' credit 
data. We have learned from the recent IRS, Associated Press, and NSA 
scandals what happens when government agencies cross the line and watch 
our citizens instead of watching out for them. There is a trust deficit 
in government today.
  During the last several months, I have raised significant concerns 
with the CFPB's data collection efforts. I have been told that the 
Bureau needs big data to level the playing field. However, the Bureau's 
efforts go far beyond simply leveling the playing field. Unfortunately, 
for an agency that prides itself on transparency, I have encountered 
very little concrete answers to very basic questions.
  For example, I have asked the Bureau on three occasions to give me 
information on the number of Americans' credit accounts that the CFPB 
is currently monitoring. In response, the CFPB said the information was 
confidential and could not be supplied.
  Information coming from last week's hearing in the House Financial 
Services Committee indicates that the CFPB is undertaking unprecedented 
data collection on possibly hundreds of millions of Americans' 
accounts, possibly as many as 900 million credit card accounts in the 
United States. The size of this data collection and the amount of money 
being spent by the agency are a cause of concern and should be for 
those Americans whose financial and credit data is being sent to the 
Bureau each and every single month.
  The CFPB is collecting credit card account data, bank account data, 
mortgage data, and student loan data. In addition, the Bureau has hired 
third parties to act as its agent to collect, aggregate, and produce 
consumer credit data on behalf of the agency. Some contracts even 
contain instructions to follow specific consumer accounts over time.
  This ultimately allows the CFPB to monitor, on a monthly basis, an 
individual consumer's financial activity. Some of the data collected 
and provided to the CFPB monthly includes account balances, ZIP Code+4 
location data, the year of birth, and other demographic information. 
Thus, the CFPB can know how much you owe, how much money you have, how 
much you pay each month, and where you live within a few blocks.
  The Bureau has stated publicly on several occasions that it does not 
collect personally identifiable information other than the voluntary 
personally identifiable information consumers submit to the Consumer 
Complaint Database and in supervisory exams. However, two documents 
drafted by the CFPB seem to raise doubts about this Federal agency's 
actions.
  Pursuant to the Privacy Act of 1974, the CFPB's System of Records 
Notice of November 2012 for the consumer and market research database 
states that some of the collected data ``will be personally 
identifiable information.'' In addition, a CFPB contract with a third 
party data aggregator states:

       Most, if not all, of the data will be confidential 
     supervisory information, and some of the data will contain 
     sensitive Personal Identifiable Information (PII).

  Questions still remain about what type of personal information is 
collected by the CFPB and what is collected by the agency's 
contractors. But without the structural changes to the agency that we 
are asking for, it is hard to get answers to the question.
  At the hearing in the House last week, a CFPB official was unable to 
state how many agency employees have access to this enormous amount of 
credit data. He was also unaware of any law which is used when 
employees access the data.
  I also question whether the Bureau has put in proper policies and 
procedures to prevent the data from being reengineered and reverse 
engineered. I consider these to be very serious privacy concerns by the 
very agency that was created to watch out for consumers, not to watch 
consumers.
  Banks constantly worry about cyber attacks. Recent news reports have 
run stories about the Federal Reserve and the IRS being susceptible to 
cyber attacks.
  What assurances do we have from the CFPB that these massive troves of 
consumer credit information are safe? Data safety is particularly of 
concern, given that both the GAO and the CFPB's inspector general have 
found weaknesses in the CFPB data security programs and policies.
  Because I was unable to get sufficient answers out of the CFPB, I 
turned to the Government Accountability Office and requested that it 
look into the agency's data collection and security efforts. That 
review is now underway.
  With regard to the regulatory role of the agency, in the past 2 years 
the Bureau has issued numerous new rulemakings, resulting in 
significant cumulative burdens for affected institutions, especially 
small and community banks that often only have a handful of employees. 
Remember, there is no board directing this agency. There is no board to 
whom the Director of the agency responds. One single individual has 
been given the authority in this statute, without oversight by Congress 
of his or her budget, to single-handedly issue rules and regulations.
  In the span of 10 days this past January, the CFPB issued more than 
3,500 pages of final rules affecting mortgage markets and other 
industries. This represents more than 1 million total words of 
regulatory text. When I asked at an April hearing about the 
overwhelming number of regulations the Bureau issued in 1 single month, 
I was told that there were ``less than 100 pages of rules'' when 
translated into the Federal Register.
  Well, 100 pages of rules is a lot, but this ignores the more than 
2,500 pages of guidance, analysis, and interpretations--which are all 
admissible in court--and all of which are required reading for anyone 
who has to comply with this complex web of rules.

[[Page S5704]]

  In order to understand and comply with these regulations, 
institutions are forced to hire lawyers and compliance officers, tying 
up resources that could be better spent on growing business, creating 
jobs, and boosting the economy. Again, recall that the connection 
between safety and soundness regulations was severed with the creation 
of this agency.
  Instead, these additional compliance costs are inevitably passed on 
to the consumers, which is especially harmful during a time of high 
unemployment and sluggish economic growth. If we were convinced that 
the agency was at least protecting consumers rather than collecting 
data on all individual Americans who have credit cards, student loans, 
mortgages, or bank accounts, then perhaps we could at least engage in a 
discussion or a debate about whether the agency's actions are 
appropriate and effective.
  I am concerned that without the strong cost-benefit analysis and 
input from the small business panels in crafting rules, even well-
intentioned rules could make consumer credit more expensive and less 
affordable.
  Another concern I have with the CFPB is the enactment of policy 
changes outside of the established notice-and-comment rulemaking 
process.
  In March, the CFPB posted a legal bulletin on its blog instructing 
auto lenders to adjust compensation practices to avoid violating fair 
lending laws. The bulletin includes significant legal interpretations 
and suggests that the Bureau may utilize its enforcement powers to 
ensure that lenders adhere to its guidance.
  The only example the CFPB uses in this bulletin on how auto lenders 
can effectively comply with fair lending laws is flat pricing, as is 
interpreted by many, that any other type of pricing will be a clear 
violation in the CFPB's eyes. If the CFPB intends to make major policy 
changes, then it needs to go through a regular notice-and-comment 
rulemaking, not a blog post.
  This bulletin also, frankly, represents a backdoor attempt by the 
CFPB to regulate auto dealers, a group that is explicitly exempted from 
the CFPB's regulatory purview by the Dodd-Frank legislation that 
created the agency, in what appears to be yet another example of CFPB's 
overreach.
  In conclusion, I will continue to work toward oversight of the agency 
to ensure accountability and transparency for the American people. 
Those who are trying to paint our demands as being extraordinary need 
to look at the extraordinary data collection and actions of this agency 
and look at our regulatory landscape with similarly situated financial 
regulators.
  Those who are trying to portray these demands as another attempt to 
water down consumer protection need to realize that consumer protection 
divested from safety and soundness does not make for a better financial 
system or for greater benefit to consumers.
  We found in our review of the CFPB that the agency does have serious 
problems in a number of different areas. The lack of prompt and 
complete responses from the agency regarding its big data collection of 
Americans' credit accounts is very troubling but is indicative of the 
lack of transparency established when this agency was created.
  The expenditure of nearly $100 million for building renovations is 
extremely troubling in these tight economic times.
  While the confirmation of the nominee is now all but certain, there 
remains significant work and oversight to ensure the CFPB is an 
accountable agency and that it is transparent in its actions for all 
Americans to see.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, did my friend from Idaho suggest the absence 
of a quorum?
  The PRESIDING OFFICER. No, he did not.
  Mr. REID. Mr. President, I will talk for a minute about the National 
Labor Relations Board nominees.
  The NLRB has helped to protect the rights and safety of workers for 
about 80 years. It is a vitally important watchdog for working 
Americans. It is also important for employers. It also protects 
employers. But unless we act before the Senate recess in August, the 
NLRB will lose its ability to operate. It will fail to have a quorum so 
it can't work or be effective. So the confirmation of full membership 
at the NLRB is a priority.
  I understand Republican Senators were frustrated by President Obama's 
recess appointment of two members to the NLRB. I accept that. No one 
has raised any questions, however, about these two good people--Griffin 
and Block. They are fine public servants and the record should be 
spread with that fact. Republicans have insisted on the President's 
nominating new people, and he has done that. It is a right they have, 
and this is a compromise that was reached.
  Republican Senators have also committed that the Senate will confirm 
these new nominees quickly, certainly before the end of this month--the 
month of July. To that end, I met earlier with Senators Harkin and 
Lamar Alexander, the chairman and ranking member of that big HELP 
Committee, and they have given me their word they are going to file a 
notice tonight that the committee will hold a hearing on these nominees 
on Tuesday, they will then have a markup on Wednesday, and we intend to 
turn to these nominees next Thursday.
  I have talked with the people at the White House, and I am confident 
these nominees will be staunch advocates for the NLRB--for the rights 
and safety of workers, and for employers that are also protected with 
this legislation. So when the Senate confirms them, the NLRB will once 
again have a full team to protect the rights of workers--the workers in 
West Virginia, workers in Nevada, and all over the country--the same 
thing they have done for 80 years.
  Mr. President, I ask unanimous consent that the cloture motions with 
respect to Calendar Nos. 100, 101, and 104 be withdrawn; that the vote 
on the confirmation of the Cordray nomination occur at 5 p.m. today; 
that if the nomination is confirmed, the motion to reconsider be 
considered made and laid upon the table, with no intervening action or 
debate; that no further motions be in order; that any related 
statements be printed in the Record; and President Obama be immediately 
notified of the Senate's action; finally, that the vote on the motion 
to invoke cloture on the Hochberg nomination occur at 10 a.m. tomorrow, 
Wednesday, July 17.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. 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. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the nomination 
of Richard Cordray, of Ohio, to be Director, Bureau of Consumer 
Financial Protection?
  Mr. CARDIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 66, nays 34, as follows:

                      [Rollcall Vote No. 174 Ex.]

                                YEAS--66

     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Collins
     Coons
     Corker
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Hirono
     Isakson
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--34

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chiesa
     Coats
     Cochran
     Cornyn
     Crapo
     Cruz

[[Page S5705]]


     Enzi
     Fischer
     Grassley
     Heller
     Hoeven
     Inhofe
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McConnell
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
  The nomination was confirmed.
  The PRESIDING OFFICER (Ms. Warren). Under the previous order, the 
motions to reconsider are considered made and laid upon the table, and 
the President will be immediately notified of the Senate's action.
  The majority leader is recognized.

                          ____________________