[Congressional Record Volume 159, Number 103 (Thursday, July 18, 2013)]
[Senate]
[Pages S5763-S5766]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            PEREZ NOMINATION

  Mr. ALEXANDER. Mr. President, later today we will vote in the Senate 
on the question concerning whether the President's nomination of Thomas 
Perez to be the Secretary of Labor should be confirmed. I will vote no. 
I will vote against the confirmation of Mr. Perez. I do not believe he 
is the right man for this job.
  The Secretary of Labor has immense influence over the lives of 
workers and the conduct of business in today's economy. Employees, 
employers, and unions must be able to trust the Secretary to faithfully 
and impartially execute our Nation's labor laws.
  At a time when the official unemployment rate stands at 7.6 percent--
meaning millions of Americans are looking for work and can't find it--
and at a time when there is a growing gap between our workers' skills 
and our employers' needs, we need serious leadership on labor policy. 
We need someone who understands how to create an environment in which 
the largest number of Americans can find good new jobs. We need 
leadership that is committed to working in the best interests of the 
country. Unfortunately, I don't believe Mr. Perez meets that standard.
  Mr. Perez's life story is one with many worthy accomplishments in 
public service, a devotion to representing disadvantaged individuals, 
and I commend him for that. But he has demonstrated throughout his 
career that he is willing to, in his words, push the envelope to 
advance his ideology.
  I believe there are three significant problems with the nomination of 
Mr. Perez:
  No. 1, in my view, his record raises troubling questions about his 
actions while at the Department of Justice and his candor in discussing 
his actions with this committee.
  The Department of Justice inspector general recently published a 
detailed report that discussed problems in the voting rights section. 
It talked about a politically charged atmosphere of polarization. Mr. 
Perez has administered that section since 2009. The report talked about 
the unauthorized disclosure of sensitive and confidential information 
and about blatantly partisan political commentary. It specifically 
criticized the management of the Department and Mr. Perez's actions 
while at the Department. When questioned by members of our Committee on 
Health, Education, Labor and Pensions, Mr. Perez's answers were vague 
and nonresponsive.
  No. 2, to preserve a favorite legal theory, Mr. Perez orchestrated a 
quid pro quo arrangement between the Department of Justice and the City 
of St. Paul in which the Department agreed to drop two cases in 
exchange for the city withdrawing a case, the Manger case, before the 
Supreme Court.
  Mr. Perez's involvement in this whole deal seems to me to be an 
extraordinary amount of wheeling and dealing outside what should be the 
normal responsibilities of the Assistant Attorney General for Civil 
Rights. To obtain his desired results, Mr. Perez reached outside of the 
Civil Rights Division at the Department of Justice into the Minnesota 
U.S. Attorney's Office and into the Department of Housing and Urban 
Development. This exchange cost American taxpayers the opportunity to 
potentially recover millions of dollars and, more importantly, violated 
the trust whistleblowers place in the Federal Government. His testimony 
has been contradicted by the testimony of other witnesses in 
contemporaneous documents.
  In short, it seems to me that Mr. Perez did not discharge the duty he 
owed to the government to try to collect money owed to taxpayers. He 
did not discharge the duty to protect the whistleblowers, who were left 
hanging in the wind. At the same time, he was manipulating the legal 
process to remove a case from the Supreme Court in a way that is 
inappropriate for the Assistant Attorney General of the United States.
  No. 3, Mr. Perez's use of private e-mail accounts to leak nonpublic 
information is troubling to me.
  Federal officials in this administration seem to have a penchant for 
using private e-mails to conduct official business. The Federal Records 
Act is designed to ensure that the government is held accountable to 
the American people to prevent the opportunity for a shadow government 
to operate outside of the normal channels of oversight. Using personal 
e-mails robs the Nation of the ability to know if the government is 
behaving appropriately.
  Since Mr. Perez apparently is going to be confirmed despite my vote, 
I hope he will pledge to stop using personal e-mails to conduct 
official business.
  For these three reasons, I cannot support the Perez confirmation. I 
will support and have supported the President's right to have an up-or-
down vote on his Cabinet members. I always have. So I voted for 
cloture.

[[Page S5764]]

  But what we have seen over the last several weeks--and I believe the 
reason the Senate did not come to a screeching halt this week--is that 
there is a widespread misunderstanding about what Senate Republicans 
have done with respect to President Obama's nominees for his Cabinet. 
The reality is that Republicans have respected the right of the 
President to staff his Cabinet. In fact, never in our Nation's history 
has the Senate blocked a Cabinet official from confirmation by a 
filibuster. Let me say that again. The number of Presidential nominees 
for Cabinet in our Nation's history who have been denied his or her 
seat by a filibuster, by a failed cloture vote, is zero.
  The Washington Post and the Congressional Research Service have said 
that President Obama's Cabinet appointees in his second term are moving 
through the Senate at about the same rate as President George W. Bush's 
and President Clinton's.
  Senators on both sides of the aisle have a long history of using the 
constitutional authority for advice and consent to ask questions. We 
have done that in the Committee on Health, Education, Labor and 
Pensions concerning Mr. Perez for the last 122 days. We have a 
historical right--and we have exercised it in a bipartisan way--to use 
our right to ask for 60 votes in order to advance our views. That is a 
part of the character of the Senate. But it is important to know that 
these fairy tales that have been suggested about Republicans somehow 
blocking President Obama's nominees are just that.
  I ask unanimous consent to have printed in the Record at the end of 
my remarks an op-ed I wrote for the Washington Times yesterday 
supporting my remarks. The op-ed points out that most of this week's 
nuclear option debate about whether Senators should be permitted to 
filibuster Presidential nominees was not about filibusters, it was 
instead about whether a majority of Senators should be able to change 
the rules of the Senate at any time for any purpose.
  Former Senator Arthur Vandenberg of Michigan once offered the precise 
trouble with this idea. He said:

       If a majority of the Senate can change the rules at any 
     time, the Senate has no rules.

  In other words, all of this fuss was a power grab.
  In fact, most of the filibustering that has been done to deny 
Presidents confirmation of their nominees has been done by our friends 
on the other side. As I mentioned earlier, the number of Cabinet 
members who have been denied their seats by a filibuster is zero. The 
number of district judges in the history of the country who have been 
denied their seats by a filibuster is zero. The number of Supreme Court 
Justices who have been denied their seats by a filibuster is zero. 
There was the incident in 1968 when President Johnson engineered an 
opportunity for Abe Fortas to get a 45-to-43 vote so he could feel 
better about staying on the Court after a majority of the Senate 
clearly wasn't going to confirm him for the Supreme Court. But 
throughout our history, the right to advise and consent has been 
exercised by a majority vote even in the most controversial cases. The 
vote on Clarence Thomas for the Supreme Court was a majority vote. The 
vote denying Robert Bork an opportunity to go to the Supreme Court was 
a majority vote. While there never has been a Supreme Court nominee 
blocked by a filibuster, about a quarter of all of the Supreme Court 
nominees have been withdrawn or blocked by majority vote.
  So elections have consequences, and I respect that whether it is a 
Republican or a Democratic President. Our tradition was that nominees 
were not denied their seat by a failed cloture vote. Other than Fortas, 
the only exception is that in 2003, about the time I came to the 
Senate, the Democrats, for the first time in history--the first time in 
history--filibustered 10 of President George W. Bush's nominees. That 
produced Republicans who wanted to change the rules of the Senate, and 
fortunately cooler heads prevailed. But five Republican judges--very 
meritorious people, such as Miguel Estrada; a real tragedy--were denied 
their seats by a filibuster.
  So the usual and expected happened. Republicans have since denied two 
Democratic seats by a filibuster.
  So my preference is much that Presidents have the opportunity to 
appoint their Cabinet members, to appoint their Supreme Court Justices, 
and if we don't like them, we can vote against them. There have been 
occasions where sub-Cabinet members have been denied their seats. The 
total number is seven, all since 1994, and there may be more again.
  A simple objection by Republicans to the motion of the majority 
leader to cut off debate may simply mean we want more information. In 
the case of Senator Hagel, the majority leader sought to cut off debate 
2 days after his nomination came to the floor, and we voted no. We were 
not ready to cut off debate. Then, 10 days later, we voted to confirm 
Senator Hagel.
  I am glad that this week the Senate regained its equilibrium, so to 
speak, and stopped this talk of creating the Senate as a body where a 
majority of the Senate can change the rules at any time, which would 
make this a Senate without any rules.

  I hope we do not hear any more about it because that is not 
appropriate. It is not appropriate in this body. John Adams, Thomas 
Jefferson, George Washington, Senator Reid himself, and others have 
said that this body is different. It is a place where you have to come 
to a consensus. We are coming to one, for example, on student loans 
today. The President made a good recommendation to solve the student 
loan problem on a permanent basis. The House of Representatives passed 
something much like the President's, and hopefully we can do that later 
today.
  So I believe the President deserves an up-or-down vote on his 
nomination for the Secretary of Labor and his nominee for any other 
Cabinet member. But in this case, for the reasons I stated, I am voting 
no on confirmation.
  I see the Senator from Georgia is here.
  I yield the floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, July 17, 2013]

               The Power Grab Behind the Crocodile Tears


    Democrats try to change the rules when they can't get their way

                          (By Lamar Alexander)

       This week's ``nuclear option'' debate about whether U.S. 
     senators should be permitted to filibuster presidential 
     nominations was not about filibusters.
       It was instead about whether a majority of senators should 
     be able to change the rules of the Senate anytime for any 
     purpose. Former Sen. Arthur Vandenberg of Michigan once 
     offered the precise trouble with this idea: ``If a majority 
     of the Senate can change its rules at any time, there are no 
     rules.''
       In other words, this was a power grab.
       Despite Democrats' crocodile tears, filibusters--the 
     requirement of securing 60 senators' votes to allow a vote on 
     a nomination--have done little to frustrate presidential 
     nominations.
       According to The Washington Post, President Obama's Cabinet 
     nominees during his second term are moving through the Senate 
     about as rapidly as those of Presidents Clinton and George W. 
     Bush.
       According to the Congressional Research Service, in the 
     history of the Senate, the number of times filibusters have 
     denied a seat to a nominee for the Supreme Court, the 
     president's Cabinet or federal district judge is zero. (The 
     only arguable exception is President Lyndon Johnson's 
     engineering of a 45-43 cloture vote in favor of the 
     nomination of sitting Supreme Court Justice Abe Fortas to be 
     chief justice in order to lessen the embarrassment of Fortas' 
     failure to attract the support of a majority of senators for 
     confirmation.)
       Ironically, most of the frustrating of presidential 
     nominations by filibusters has been done by the Democrats 
     themselves. The number of federal court of appeals nominees 
     who have been denied their seats by filibusters would also be 
     zero were it not for the decision by Democratic senators in 
     2003 to filibuster 10 of President George W. Bush's appellate 
     court nominees. This led to the ``Gang of 14'' compromise 
     that allowed five of those to be confirmed, but discarded the 
     other five. Since then, Republicans have retaliated by 
     denying two of Mr. Obama's appellate nominees.
       Over the years, there have been seven sub-Cabinet nominees 
     blocked by filibuster--three Republicans and four Democrats, 
     all since 1994.
       So the grand total of presidential nominees who have been 
     blocked by filibusters (failure to obtain 60 votes to cut off 
     debate) is 14. And it is fair to say that Democrats sowed the 
     seeds of the current controversy when they filibustered Mr. 
     Bush's appellate judges in 2003.
       So, what were Democrats complaining about?
       For many Democrats, getting rid of the filibuster for 
     nominees is the first step in turning the Senate into an 
     institution where the majority rules lock, stock and barrel.

[[Page S5765]]

       The Senate would become like the House of Representatives, 
     in which a majority of only one vote could establish a Rules 
     Committee with nine members of the majority and four of the 
     minority. Every meaningful decision would be controlled by 
     the majority. The result: The minority, its views and those 
     it represents would become irrelevant. It would be the same 
     as having the power to add an inning or two to a baseball 
     game if you don't like the score in the ninth inning.
       Alexis De Tocqueville, the young Frenchman who traveled the 
     United States in the 1830s, warned against this kind of 
     governance. He wrote that the two greatest dangers to the 
     American democracy were Russia and the ``tyranny of the 
     majority.''
       In his book on Thomas Jefferson, Jon Meacham writes of an 
     after-dinner conversation between President Adams and Vice 
     President Jefferson. Adams said that ``no republic could ever 
     last which had not a Senate and a Senate deeply and strongly 
     rooted, strong enough to bear up against all popular 
     passions'' and that ``trusting to the popular assembly for 
     the preservation of our liberties was [unimaginable].''
       John Adams was right. And so was then-Minority Leader Harry 
     Reid in 2005 when, opposing Majority Leader Bill Frist's 
     effort to use the ``nuclear option'' to kill the filibuster 
     on judicial nominations, he said: ``And once you open that 
     Pandora's box, it was just a matter of time before a Senate 
     leader who couldn't get his way on something moved to 
     eliminate the filibuster for regular business as well. And 
     that, simply put, would be the end of the United States 
     Senate.''
       The only real confirmation issue before the Senate is Mr. 
     Obama's use of his recess appointment power to install two 
     members of the National Labor Relations Board when the Senate 
     was not in recess, a blatant affront to the constitutional 
     separation of powers that the District of Columbia Circuit 
     Court of Appeals said was unconstitutional. Fortunately, a 
     compromise has been reached in which the president is sending 
     to the Senate two new, untainted nominees for the board. This 
     week's debate, however, shows the threat to the end of the 
     United States Senate lingers.
       Those Democrats still seeking to create a Senate in which a 
     majority can change the rules whenever it wants should be 
     prepared for what could happen next. Their dream of a 
     Democratic freight train running through a Senate in which a 
     majority can do whatever it wants might turn into their 
     nightmare if, in 2015, that freight train is the Tea Party 
     Express.

  The ACTING PRESIDENT pro tempore. The Senator from Georgia.
  Mr. ISAKSON. Mr. President, first, before the Senator from Tennessee 
leaves the floor, if he was getting ready to, I wish to commend him on 
his activities over the last 8 days. For the second time in a decade, 
we came to the brink of making a bad mistake in the Senate. But we 
proved--and Senator Alexander really proved through the facts, which 
are stubborn things--that if you study history and you read the history 
of the Senate, you understand there is a purpose for the cloture rule, 
there is a purpose for the filibuster, but there is also a purpose for 
being judicious in its use.
  I commend the Senator on his historic history lesson, his personal 
experiences as being one who has gone through the process himself when 
he was nominated to be Secretary of Education, and I appreciate very 
much his leadership on the Committee of Health, Education, Labor, and 
Pensions.
  I will be brief, but I would like to speak for a minute about the 
nomination of Thomas Perez.
  The Labor Department is an important Department in the United States 
of America, and jobs are an important need we have in this country. We 
need an aggressive leader at the Department of Labor who is trying to 
get the Workforce Investment Act passed, trying to get people trained, 
trying to get wrongs righted, trying to be a leader. But what we do not 
need to have is one who throws up stumbling blocks to progress, 
stumbling blocks to jobs, and stumbling blocks to business.
  Thomas Perez has a history of using disparate impact to enforce or to 
move toward where he wants to go in terms of the regulations he has had 
responsibility for in the past, namely at the Department of Justice.
  Disparate impact is where you take unrelated facts, pull them 
together to get a pattern or practice, and then make a case against 
somebody for something that because of those disparate facts you think 
could draw you to a conclusion that they discriminated or they 
overcharged or they redlined or whatever it might be. Disparate impact 
is a very difficult thing to use. It is an even more difficult thing to 
defend yourself against. It would certainly be the wrong way to run the 
Department of Labor.
  We know from Thomas Perez's experience in St. Paul, MN, with a 
whistleblower that his use of disparate impact caused him to work with 
the City of St. Paul to deny a whistleblower what he deserved in terms 
of his rights and the American people in terms of what they deserved in 
being reimbursed for the money that had been lost because of the 
actions the whistleblower uncovered.
  It is important for us to understand that the Department of Labor is 
a job creator, not a job intimidator. We have had an issue in the last 
4 years with the Department of Labor about the fiduciary rule--a rule 
that, if put in place, would cause the American saver and investor, the 
small saver and the small investor--it would deny them investment 
advice or cause them to pay so much for investment advice that the cost 
of that advice would be more than the yield on the investment they 
have. That would be the wrong thing do. I fear Thomas Perez will 
regenerate the fiduciary rule--which we fortunately beat back 2 years 
ago--and try to bring it forward again.
  Going back to disparate impact, with the regulation of OSHA, the Mine 
Safety and Health Administration, MSHA--all the things that are done by 
the Department of Labor--to begin to use disparate impact as a pattern 
or practice to enforce mine safety laws, occupational safety laws, or 
any other type of laws which are very definitive in the way they should 
be enforced would be the wrong direction to go.
  But most importantly of all, the nomination of Thomas Perez 
demonstrates why it is important to have cloture, why the filibuster, 
used judiciously and timely, can be a benefit to the Senate.
  I ask unanimous consent to have printed in the Record a letter dated 
July 8, 2013, from the Chairman of the Oversight and Government Reform 
Committee in the House of Representatives, Darrell Issa.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Congress of the United States, Committee on Oversight and 
           Government Reform,
                                    Washington, DC, July 18, 2013.
     Hon. Thomas E. Perez,
     Assistant Attorney General, U.S. Department of Justice, 
         Washington, DC.
       Dear Mr. Perez: I am in receipt of a letter dated June 21, 
     2013, from Peter J. Kadzik, Principal Deputy Assistant 
     Attorney General, regarding your extensive use of a non-
     official e-mail account to conduct official Department of 
     Justice business. I am extremely disappointed that you 
     continue to willfully disregard a lawful subpoena issued by a 
     standing Committee of the United States House of 
     Representatives.
       The subpoena issued on April 10, 2013, requires you to 
     produce all responsive communications to and from any of your 
     non-official e-mail accounts referring or relating to 
     official business of the Department of Justice. The 
     Department has represented that about 1,200 responsive 
     communications exist, including at least 35 communications 
     that violated the Federal Records Act. On May 8, 2013, 
     Ranking Member Cummings and I wrote to you requesting that 
     you produce to the Committee all responsive documents in 
     unredacted form, as the Committee's subpoena requires. As of 
     today, you have not produced a single document to the 
     Committee; therefore, you remain noncompliant with the 
     Committee's subpoena.
       Your continued noncompliance contravenes fundamental 
     principles or separation of powers and the rule of law. I 
     once again ask that you immediately produce all responsive 
     documents in unredacted form as required by the subpoena. 
     Until you produce all responsive documents, you will continue 
     to be noncompliant with the Committee's subpoena. Thank you 
     for your attention to this matter.
       Sincerely,
                                                     Darrell Issa,
                                                         Chairman.

  Mr. ISAKSON. This letter demonstrates that Mr. Perez, as of that day, 
had still failed to comply completely with a subpoena issued on April 
10, 2013, for information to be considered.
  I recognize that Mr. Issa is not a Member of the U.S. Senate, but he 
is the head of the Oversight and Government Reform Committee in the 
U.S. House of Representatives. He deserves to be responded to, and we 
deserve to know the facts.
  I attended the hearing on St. Paul, MN, and the whistleblower there, 
Mr. Newell, when I went to the House about 2 months ago. I know there 
are unanswered questions, and the American people deserve them.
  Cloture should be used judiciously, but this is a time--the reason I 
voted

[[Page S5766]]

no on cloture last night is because this is a time where we need all 
the answers. This is an appointee whose record demonstrates that he may 
be dangerous for the Department of Labor, not positive for the 
Department of Labor. I think it is important, when used judiciously, we 
get all the answers people need to know so that when we vote to approve 
or to deny an appointee, it is based on all the facts--not based on 
intimidation but all the facts the American people deserve.
  For that reason, I will oppose the nomination today of Thomas Perez 
to be the Secretary of Labor for the United States of America.
  I yield back my time.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

                          ____________________