[Congressional Record Volume 159, Number 102 (Wednesday, July 17, 2013)]
[Senate]
[Pages S5723-S5726]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Health Care

  Madam President, I would like to turn to another topic. Now that we 
have gotten past the nuclear option, at least for a time, I think it is 
important we return to important issues that actually affect the lives 
of the American people in very direct ways, and health care is one of 
them.
  During the Fourth of July recess, the administration unilaterally 
delayed several provisions of the so-called Affordable Care Act, 
otherwise sometimes known as ObamaCare. What they did specifically is 
they delayed enactment of the employer mandate.
  It was an implicit acknowledgement by the administration that 
ObamaCare is actually stifling job creation and prompting many 
businesses to turn from full-time employment to part time. In fact, 
there are now 8.2 million Americans working part-time jobs for economic 
reasons when they would like to work full time. That number is up from 
7.6 to 8.2 million since March. And a new survey has found that 74 
percent of small businesses are going to reduce hiring, reduce worker 
hours, or replace full-time employees with part-time employees in part 
in response to ObamaCare.
  The House of Representatives has drafted a bill that would codify the 
employer mandate delay that the administration announced earlier this 
month. In other words, they want to uphold the rule of law. Yet the 
President is now threatening to veto the very legislation that enacts 
the policy that he himself announced, which is truly surreal. The House 
bill on the employer mandate would do exactly what the President has 
already announced he would do unilaterally. There is no conceivable 
reason that I can think of for the administration to oppose this 
legislation--unless, of course, President Obama thinks he can pick and 
choose which laws to enforce for the sake of his own convenience. I am 
afraid he does believe that, and the evidence goes well beyond 
ObamaCare.
  Yesterday afternoon I listed several examples of the administration's 
persistent contempt for the rule of law.
  I mentioned the government-run Chrysler bankruptcy process in which 
the company-secured bondholders received far less for their loans than 
the United Auto Workers pension funds.
  I mentioned the subsequent Solyndra bankruptcy in which the 
administration violated the law by making taxpayers subordinate to 
private lenders.
  I mentioned the President's unconstitutional appointments to the 
National Labor Relations Board and the Consumer Financial Protection 
Bureau. You don't have to take my word for it; that is the decision of 
the court of appeals. The case has now been taken up by the U.S. 
Supreme Court to define what the President's powers are to make so-
called recess appointments. But one thing that is absolutely clear is 
that the President--the executive branch--can't dictate to the Senate 
when we are in recess, thus empowering the President to make those 
appointments without the advice and consent function contained in the 
Constitution; otherwise, the executive branch will have no checks and 
no balances on its power, and there will be no power on the part of the 
Senate to do the appropriate oversight and to confirm the President's 
nominees.
  In addition to his recess appointments, I mentioned yesterday his 
decision to unilaterally waive key requirements in both the 1996 
welfare reform

[[Page S5724]]

law and the 2002 No Child Left Behind Act, and I also mentioned his 
refusal to enforce certain immigration laws.
  What the House of Representatives is trying to do with its employer 
mandate bill is to make sure that the same rules apply to everyone and 
that the executive branch and the White House in particular don't just 
pick winners and losers when it comes to the Affordable Care Act, 
Obamacare.
  If this President or any President is allowed to selectively enforce 
the law based on political expediency, our democracy and adherence to 
the rule of law will be severely weakened.
  The principle at stake is far more important than the particular 
legislation we are talking about. It is about the constitutional 
separation of powers between the executive and the legislative branches 
of government. By assuming to be able to unilaterally suspend laws that 
prove inconvenient, the President is showing disdain for those checks 
and balances on executive authority as well as his oath, where he 
pledges to faithfully execute the laws of the United States.
  Those of us who support repealing ObamaCare in its entirety and then 
replacing it with real health care reforms that reduce costs and expand 
patient choice and access to quality care, while protecting Americans 
with preexisting conditions and saving programs such as Medicaid and 
Medicare, believe ObamaCare ought to be repealed in its entirety and 
replaced with commonsense reforms that will actually bring down the 
costs, increase the quality, and preserve the patient-doctor 
relationship when it comes to making health care choices.
  Our preference would be to repeal the entire law, but we would like 
to work with the President and our friends across the aisle now that it 
appears, according to the administration's own actions, that they 
actually believe ObamaCare is not turning out as it was originally 
intended in 2010. Indeed, one of the principal architects in the 
Senate, the chairman of the Senate Finance Committee, Senator Max 
Baucus of Montana, has told Secretary Kathleen Sebelius of Health and 
Human Services that the implementation of ObamaCare is turning out to 
be a train wreck. And indeed it is.
  Unfortunately, the President is still refusing to acknowledge the 
growing evidence that ObamaCare cannot perform as was originally 
promised. We know that the promise that if you like the health care 
coverage you have, you can keep it that the President so famously 
made--that is not true. Seven million Americans have lost their health 
care coverage as ObamaCare is being implemented and many more as 
employers are incentivized to drop their employer-provided coverage, 
leaving American families to find their health insurance elsewhere. The 
promise the President made that the average cost of health care 
insurance for a family of four would go down by $2,400--we know it has 
gone up by $2,400 since then.
  Unfortunately, it appears the wheels are coming off of ObamaCare, and 
the people who will suffer the most are hard-working American families 
we are pledged to protect and help. What we ought to be doing rather 
than denying the obvious is working together to try to enact 
commonsense reforms.
  It is not an answer for the President to discard the politically 
inconvenient portions of ObamaCare and kick off implementation until 
after the next election. To me, that is one of the most amazing things 
about the way ObamaCare has been implemented. It passed in 2010, but 
very little of it actually kicked in before the Presidential election 
of 2012. So there is no real political accountability, no real 
opportunity for the voters to voice their objection once it had been 
implemented, if it had been implemented on a timely basis. And now, 
because it has proven to be politically inconvenient, the President has 
proposed to kick off implementation of the employer mandate until after 
the 2014 midterm congressional elections. That is no way to have 
accountability for the decisions we make here. That is the opposite.
  We are simply urging the President to support the rule of law and to 
make sure the same rules apply to everyone--apply to Members of 
Congress and apply to everyone in this great country of ours. But when 
the administration chooses to selectively enforce or not enforce 
provisions of the law or issue waivers for the favored few and the rest 
of us end up with the harsh reality of this law that is not working out 
as originally intended, it undermines the rule of law and the public's 
confidence that the same rules will apply to everyone. That shouldn't 
be too much to ask.
  Madam President, I yield the floor, and 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. RUBIO. 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. RUBIO. Madam President, there has been a lot of news over the 
last 24 hours about the nuclear option and how that has been averted 
here in the Senate and what good news that is for the institution. I do 
value the Senate, and I do value the ability of individual Senators--
and particularly the minority, which I hope I won't be a part of 
forever--and of the minority to speak and to be heard. That is one of 
the things that make this institution unique.
  But I think we have to answer a fundamental question about why we 
have these rules in place and in particular why we have these rules in 
place when we are dealing with nominees, people who are nominated to 
the Cabinet and other executive positions. It is because the 
Constitution gives the Senate the power to advise and consent, to 
basically review these nominees and find out information about them and 
then decide whether they should be confirmed.
  There are two different standards with regard to that. The first 
standard is whether the nominee should be able to go forward, and that 
requires a supermajority vote--60 votes--to continue debate. It is kind 
of arcane and I don't want to do a tutorial on the Senate, but let me 
say that if you can't get those 60 votes, then you have to continue to 
debate that nominee. That is an important tool--not to obstruct but 
should be used judiciously. It is a tool that should be used to make 
sure that this process is being respected and that people are answering 
critical and valid questions. It is an important tool to use. It needs 
to be used judiciously. It needs to be used in a limited way. You can't 
do that on everybody. You shouldn't do that on everybody. Quite 
frankly, the minority has not done it on everybody, nor have I. I have 
been very careful in its use and have tried to ensure that when we do 
use it and when I do use it, I use it for reasons that are valid.
  It is with that in mind that I am very concerned about a nominee who 
will be before this body as early as today on a 60-vote threshold about 
whether to cut off debate on this individual and proceed to final 
confirmation, and that is this nominee for the Secretary to head the 
Labor Department, which is a significant agency of our government that, 
quite frankly, has a direct impact on the ability of businesses to grow 
and hire people and so forth. This is an important nomination and one 
that I think deserves careful scrutiny.

  Now, let me be frank and up-front. I have significant objections to 
this nomination on the basis of public policy, and I have stated that 
in the past. I believe this individual, Thomas Perez, who is currently 
an Assistant Attorney General, is a liberal activist who has used his 
position--not just in the Department of Justice but in other roles he 
has played--to advance a liberal agenda that, quite frankly, is out of 
touch with a majority of Americans and that I believe would be bad for 
our economy, hence the reason I don't think it is a good idea for him 
to head the Labor Department. But the President has a right to his 
nominees.
  So that is a reason to vote against this nomination. That in and of 
itself may not always be a reason to block a nomination from moving 
forward. Where I do think there is a valid reason to block someone's 
nomination from moving forward is when that individual has refused to 
cooperate with the process that is in place to review their nomination.
  When you are nominated to serve in the Cabinet or in the executive 
branch, you get asked questions about things you have done in the past, 
things you

[[Page S5725]]

have said in the past, and you are expected to answer those fully and 
truthfully so that the Members of this body can make a decision about 
your nomination based on the facts. I don't know of anyone here who 
would dispute that, including people in the majority. Irrespective of 
how you feel about the nominee, every single Senator here--and through 
us, the American people--has a right to fully know who it is we are 
confirming, whether it is to the bench or to the Cabinet or to some 
other executive position. That is a right that is critically important.
  When a nominee refuses to cooperate with that process, I believe that 
is a valid reason to stand in the way of their confirmation and to 
block it from moving forward until those questions are fully and 
truthfully answered. I do believe that is a reason not to vote for what 
they call cloture around here. I think that is a case in point when it 
comes to this Labor nominee, Mr. Perez, and I want to take a few 
moments to argue to my colleagues why it is a bad idea for both 
Democrats and Republicans to allow this nomination to move forward 
until this nominee answers the questions he has been asked by the 
Congress. Let me give the background.
  There was a case filed by the City of St. Paul in Minnesota, and this 
case had to do with a legal theory called disparate impact. It is not 
really on point per se, but it basically says that you look at how some 
policy is impacting people, and even if there wasn't the intent to 
discriminate against people, if the practical impact of it was that it 
was discriminating against people--let's say a bank was giving out 
loans, and although the loan officer wasn't looking to deny loans to 
minorities, if the way they had structured the program meant that fewer 
minorities were getting loans than should be under a percentage basis, 
then under this theory you would be allowed to go after whatever 
institution did that. That is the theory which is out there in law.
  The City of St. Paul had a challenge to that in court that chose to 
define exactly what that meant, and it got all the way to the Supreme 
Court. It was on the Supreme Court's docket. At the same time, the 
Justice Department was being asked to intervene in a whistleblower case 
regarding Housing and Urban Development. Again, it would take too long 
to describe exactly why that is important, but the bottom line is that 
the case against the City of St. Paul, the separate case--the 
whistleblower case--because of the way the law is written, they 
couldn't move forward on that case unless the Department of Justice 
intervened. And that is where the nominee, Mr. Perez, stepped in. He is 
an enormous fan of the disparate impact theory. In fact, he had used it 
to go after banks, of all things, in his time at the Department of 
Justice.
  At some point in the future I will come to the floor and detail why I 
object to his nomination, appointment, and confirmation, but today I am 
just making the argument as to why it is a bad idea to move forward on 
this nomination until certain questions are answered.
  This is where Mr. Perez steps in. What he did is he basically went to 
the City of St. Paul and said: Look, if you drop your Supreme Court 
case, we will not intervene in the whistleblower case. It is what is 
known in Latin as a quid pro quo--you do this for me, I will do that 
for you. In essence, City of St. Paul, drop your Supreme Court case and 
I will not intervene on behalf of the Department of Justice.
  He argues reasons why he did that were based--he told the House 
committee the reason why I did that is because I thought it was a bad 
case, I had bad facts and I didn't want to move forward on the HUD 
whistleblower case anyway. He claimed that. But, in fact, a subsequent 
investigation found that a career attorney in the Department of Justice 
actually did not feel that way at all. A career attorney who was 
involved in this case believed it was a good case and, in fact, at a 
meeting about the case he expressed concern that this looked like we 
were ``buying off'' the City of St. Paul.
  Right away the nominee had, frankly, misled the congressional 
committee when he argued it was a bad case, everybody agreed that the 
facts were bad. In fact, that is not true. The career prosecutor who 
was looking at this case wanted to move forward and was concerned that 
the way this looked was that it was a buy-off.
  Then the nominee was asked: By the way, did you use your personal e-
mail to conduct this deal? Did you e-mail with people about it? We 
understand your Federal account, we have access to that, but did you 
use your personal accounts?
  You know, we all have business accounts and we all have personal 
accounts. The question was did you use your personal accounts to cut 
this deal or negotiate this deal or even talk about it with anybody? 
His answer was he could not recall, he had no recollection of that.
  Subsequently, however, it was discovered that, in fact, on at least 
one occasion initially, he had used his e-mail to discuss something 
with someone at the City of St. Paul. That is when the House oversight 
committee stepped in and it asked him voluntarily and the Justice 
Department voluntarily to produce any e-mails from his private account 
that had to do with his official capacity.
  Understand the request. It wasn't: Send us e-mails between you and 
your children or between you and your family or about you planning your 
vacation. What they asked for were any e-mails from your private 
accounts that have to do with your official capacity.
  The Justice Department responded to that request by saying: We have 
found 1,200 instances of the use of his personal e-mails for official 
business. We found at least--the number at least was 34, but then 35--
instances where it violated the open records laws of the Federal 
Government. So he was voluntarily asked to produce these e-mails to the 
House. He refused.
  The House then subpoenaed these records, a subpoena which has the 
power of Congress behind it basically compelling you: You must produce 
it now. Again, he refuses to produce these e-mails.
  What we have before the Senate today is a nominee to head the Labor 
Department of the United States of America who refuses to comply with a 
congressional subpoena on his e-mail records regarding his official 
business conduct. He refuses to comply; will not even answer; ignores 
it.
  Here is what I will say to you. How can we possibly vote to confirm 
somebody if they refuse to produce relevant information about their 
official conduct? Think about that. This is an invitation for any 
official in the executive branch to basically conduct all their 
business in their private accounts because they know they will never 
have to produce it, they can ignore the Congress.
  The nominee, Mr. Perez, hides behind the Department of Justice and 
says: They are handling this for me. But the problem is the Department 
of Justice doesn't possess these e-mails. These are his e-mails from 
his personal account that he refuses to produce.
  If, in fact, there is nothing to worry about--and I am not claiming--
I have not seen the e-mails. I don't know what is in them. None of us 
do. That is the point. The fact is we are now being asked to vote to 
confirm someone--not just to confirm someone, to give him 60 votes to 
cut off debate on the nomination of someone who is in open contempt of 
a congressional subpoena and repeated requests, including a bipartisan 
request. I have it here with me, a bipartisan request signed by Mr. 
Issa of California and Mr. Cummings, the ranking minority member, dated 
May 8, 2013:

       We write to request you produce all documents responsive to 
     the subpoena issued to you by the committee on April 10, 
     2013, regarding your use of a non-official e-mail account to 
     conduct official Department of Justice business. The 
     Department [Justice Department] has represented to the 
     Committee that roughly 1,200 responsive e-mails exist. To 
     allow the Committee to fully examine these e-mails, please 
     produce all responsive documents in unredacted form to the 
     Committee no later than Friday, May 20, 2013.

  The answer: Nothing, silence, crickets.
  This is wrong. How can we possibly move forward on a nominee--I don't 
care what deal has been cut--how can we possibly move forward on 
someone until we have information that they have been asked for by a 
congressional committee? This is outrageous. If ever there was an 
instance where someone's nomination should not move forward, this is a 
perfect example of it.

[[Page S5726]]

  I am not standing here saying deny this nominee 60 votes because I 
think he is a liberal activist--I do, and I think that is the reason 
why he should not be confirmed. What I am saying to my Republican 
colleagues is: I don't care what deal you cut, how can you possibly 
agree to move forward on the nomination when the nominee refuses to 
comply with a congressional subpoena to turn over records about 
official business at the Justice Department?
  By the way, we are not confirming him to an Ambassador post in some 
obscure country halfway around the world. This is the Labor Department. 
This is the Labor Department.
  I am shocked that there are members of my own conference who would be 
willing to go forward, go ahead on a nomination like this, who are 
willing to give 60 votes on a nomination like this on a nominee who 
has, frankly, flat out refused to comply with a congressional subpoena 
and answer questions that are legitimate and important. We are about to 
make someone the head of one of the most powerful agencies in America, 
impacting the ability of businesses to grow and create jobs at a time, 
frankly, when our economy is not doing very well, we are about to 
confirm someone to chair that agency, head up that agency when that 
individual has refused to comply with a legitimate request. How can we 
possibly go along with that?
  I understand how important it is to protect the rights of minorities 
here. I understand how important it is to protect the right of the 
minority party to speak out and block efforts to move forward. But, my 
goodness, what is the point of even having the 60-vote threshold if you 
cannot use it for legitimate reasons? This is not me saying I am going 
to block this nominee until I get something I want. This is a nominee 
who refuses to cooperate, who flat out has ignored Congress and told 
them to go pound sand. And you are going to vote for this individual 
and move forward before this question is answered?
  I implore my colleagues, frankly on both sides of the aisle--because 
this sets a precedent. There will not be a Democratic President forever 
and there will not be a Senate Democratic majority forever. At some 
point in the future you will have a Republican President and they are 
going to nominate people and those people may refuse to comply with a 
records request. You are not going to want those records? In fact, you 
have in the past blocked people for that very purpose.

  So I ask my colleagues again, how can you possibly move forward a 
nominee who refuses to comply with giving us the information we need to 
fully vet that nomination? This is a serious constitutional obligation 
we have. Do we have an obligation to the Senate and to this 
institution, being a unique legislative body? Absolutely. But we have 
an even more important obligation to our Constitution and to the role 
the Senate plays in reviewing nominations and the information behind 
that nomination, and we are being blatantly denied relevant 
information. We have colleagues of mine who say it doesn't matter, move 
forward. This is wrong. It is not just wrong, it is outrageous.
  Again, I do not think that we should use--nor do I think we have, by 
the way, used the 60-vote threshold as a way to routinely block 
nominees from moving forward. You look at the record. This President 
has done very well with his nominations, across the board--judiciary, 
Cabinet, executive branch. But, my goodness, can we at least agree that 
I have a right as a Senator from Florida--as all of you have a right as 
Senators from your States--to have all the relevant information on 
these nominees before we move forward?
  I am telling you, if you are going to concede that point, then what 
is the point of having the 60-vote threshold if you can never use it 
for legitimate purposes?
  I would argue to my colleagues today, let's not have this vote today. 
Let's not give 60 votes on this nominee until he produces these e-mails 
and we have time to review them so we can fully understand what was 
behind not just this quid pro quo deal but behind his public service at 
the Justice Department as an assistant attorney general, frankly 
confirmed by this Senate with the support of Republicans.
  This is not an unreasonable request. For us to surrender the right to 
ask these questions is a dereliction of duty and it is wrong. If ever 
there was a case in point for why the 60-vote threshold matters, this 
is an example of one. I am telling you, if this moves forward, there is 
no reason why any future nominee would not decide to give us the same 
answer; that is, you get nothing. I tell you nothing. I will tell you 
what I want you to know. Then we are forced to vote up or down on 
someone on whom we do not have information. And that is wrong.
  There is still time to change our minds. I think this is a legitimate 
exercise--not forever. Let him produce these e-mails. Let us review 
these e-mails. Then bring him up for a vote and then you can vote on 
him, whether you like it or not based on all the information. But to 
allow someone to move forward who is basically telling an oversight 
committee of Congress: I don't have to answer your questions, I don't 
have to respond to your letters, I ignore you?
  I want you to think about the precedent you are setting. I want you 
to think about how that undermines the constitutional--not just the 
right, the constitutional obligation of this body to produce advice and 
consent on Presidential nominees, and I think this is especially 
important when someone is going to be a member of the Cabinet and 
overseeing an agency with the scope and the power of the Labor 
Department.
  I still hope there is time to convince as many of my colleagues as 
possible. I do not hold great hopes that I will convince a lot of my 
Democratic colleagues, but I hope I can convince a majority of my 
Republican colleagues to refuse to give the 60 votes to cut off debate 
on this nominee until Chairman Issa and the oversight committee get 
answers to their questions that frankly we would want to know. They 
take leadership on asking these questions but we are the ones who have 
to vote on the nominee. They are doing us a favor asking these 
questions. We should, at a minimum, stand here and demand that these be 
answered before we move forward.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin). The Republican leader.