[Congressional Record Volume 159, Number 111 (Tuesday, July 30, 2013)]
[Senate]
[Pages S6031-S6036]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF KENT YOSHIHO HIROZAWA TO BE A MEMBER OF THE NATIONAL
LABOR RELATIONS BOARD
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nomination,
which the clerk will report.
The legislative clerk read as follows:
Nomination of Kent Yoshiho Hirozawa, of New York, to be a
Member of the National Labor Relations Board.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, the cloture motion
having been presented under rule XXII, the Chair directs the clerk to
read the motion.
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the nomination of
Kent Yoshiho Hirozawa, of New York, to be a Member of the
National Labor Relations Board.
Harry Reid, Tom Harkin, Jack Reed, Sheldon Whitehouse,
Christopher A. Coons, Robert P. Casey, Jr., Benjamin L.
Cardin, Patrick J. Leahy, Joe Manchin III, Elizabeth
Warren, Debbie Stabenow, Carl Levin, Angus S. King,
Jr., Richard J. Durbin, Charles E. Schumer, Amy
Klobuchar, Richard Blumenthal.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Kent Yoshiho Hirozawa, of New York, to be a member of the
National Labor Relations Board for the term of 5 years, expiring August
27, 2016, shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from North Dakota (Ms.
Heitkamp) is necessarily absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from New Jersey (Mr. Chiesa).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 64, nays 34, as follows:
[Rollcall Vote No. 189 Ex.]
YEAS--64
Alexander
Ayotte
Baldwin
Baucus
Begich
Bennet
Blumenthal
Blunt
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Corker
Donnelly
Durbin
Feinstein
Flake
Franken
Gillibrand
Graham
Hagan
Harkin
Heinrich
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Landrieu
Leahy
Levin
Manchin
Markey
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--34
Barrasso
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Cornyn
Crapo
Cruz
Enzi
Fischer
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Lee
Moran
Paul
Portman
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
NOT VOTING--2
Chiesa
Heitkamp
The PRESIDING OFFICER. On this vote, the yeas are 64, the nays are
34. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
Cloture having been invoked, pursuant to S. Res. 15 of the 113th
Congress, there will now be up to 8 hours of postcloture consideration
of the nomination equally divided in the usual form.
The Senator from Iowa.
Mr. HARKIN. Mr. President, I understand we are now in postcloture
debate on this nominee. I understand there is up to 8 hours that can be
consumed for that purpose, if I am not mistaken.
The PRESIDING OFFICER. The Senator is correct.
Mr. HARKIN. I certainly hope we don't have to take that much time.
For this nominee and the other four to follow, I am hopeful we can get
through them today and get the nominees to the President before we
leave here this evening.
Today is a day that I and many of my colleagues have long waited for.
Because of the bipartisan deal reached on the President's nominees, it
looks as though we finally have a path forward to confirm a full slate
of nominees to the National Labor Relations Board. A fully confirmed,
fully functional board will be a huge step forward for workers and
employers in our country, and this will be the first time in over a
decade this has happened.
Over 75 years ago Congress enacted the National Labor Relations Act,
guaranteeing American workers the right to form and join a union and to
bargain for a better life. For both union and nonunion workers alike,
the act provides for essential protections. It gives workers a voice in
the workplace, allowing them to join together and speak out for fair
wages, good benefits, and safe working conditions. These rights ensure
that the people who do the real work in this country see the benefits
when our economy grows and aren't mistreated or put at risk on the job.
The National Labor Relations Board is the guardian of these
fundamental rights. Workers themselves cannot enforce the National
Labor Relations Act; the Board is the only place where people can go if
they have been treated unfairly and denied the basic protections the
law provides. Thus, the Board plays a vital role in vindicating
workers' rights. In the past 10 years the NLRB has secured
opportunities for reinstatement for 22,544 employees who were unjustly
fired. It has also recovered more than $1 billion on behalf of workers
whose rights were violated in the last decade.
The Board does not just protect the rights of workers and unions; it
also provides relief and remedies to our Nation's employers. The Board
is an employer's only recourse if a union commences a wildcat strike or
refuses to bargain in good faith during negotiations. The NLRB also
helps numerous businesses resolve disputes efficiently. For example,
when two unions picketed Walmart in 2012, Walmart filed a claim with
the NLRB, and the NLRB negotiated a settlement. So by preventing labor
disputes that could disrupt our economy, the work that the Board does
is vital to every worker and every business across the Nation.
Earlier this year I received a letter from 32 management-side and 15
union-side labor attorneys from across the country who made this point
particularly well. It urged the swift confirmation of a full package of
five NLRB nominees and said:
While we differ in our views over the decisions and actions
of the NLRB over the years, we do agree that our clients'
interests are best served by the stability and certainty a
full, confirmed Board will bring to the field of labor-
management relations.
I could not agree more. Confirming these nominees swiftly is vitally
important because the National Labor Relations Board must have a quorum
of three Board members to act. If there are less than three Board
members at any time, the Board cannot issue decisions and essentially
must shut down. Although the Board currently has three members,
Chairman Pearce's term expires on August 27--next month. At that point
the Labor Board would be unable to function unless we confirm
additional members. Now, that is more than just an administrative
headache. It would be a tragedy that denies justice to working men and
women across the country. So it is imperative that we act to avoid this
and keep the Board open for work.
Up until recent times, all of us in Congress agreed that the Board
should function for the good of our country and our economy, but in the
last few years that understanding has broken down. As I said, it has
been a decade since the Board has had five Senate-confirmed members. It
is not that qualified people have not been nominated, because they
have. The problem is that a few of my colleagues on the other side of
the aisle--I am not saying everyone, but a very vocal minority--have
been trying to use the nominations process to undermine the mission of
the National Labor Relations Board.
They, first of all, do not like the National Labor Relations Act, but
they
[[Page S6032]]
know they could never repeal it outright. So what is their solution,
this vocal minority on the Republican side? Keep the NLRB inoperable by
refusing to confirm nominees regardless of their qualifications. In
this case, one of my Republican colleagues announced his intention to
filibuster the NLRB nominees 6 days before the nominations were
announced, and he openly admitted his intention was to shut down the
agency.
We have seen lots of nominees deemed unacceptable simply because they
have worked on behalf of workers or unions and they support our system
of collective bargaining. These nominees have been accused of being
biased and called unfit to serve because they worked for labor unions
or were lawyers for labor unions. But I would like to point out what
the National Labor Relations Act--the law--actually says. I have often
quoted from the National Labor Relations Act on this point, and I will
do so again right now. Here is what the law says:
It is declared to be the policy of the United States to
eliminate the causes of certain substantial obstructions to
the free flow of commerce and to mitigate and eliminate these
obstructions when they have occurred by encouraging the
practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of
association, self-organization, and designation of
representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment or
other mutual aid or protection.
That is what the law says. The purpose is, again, to encourage ``the
practice and procedure of collective bargaining'' for the good of our
workers, for the good of our economy, and for the good of our Nation.
So if we have a nominee who comes up for the Board who supports
collective bargaining, I would think that nominee would be more
qualified, not less qualified, to serve on the Board because that
nominee understands what the law says. So we should be seeking nominees
who are, in the words of one of the nominees before us today, not pro-
union, not pro-worker or pro-management, but ``pro-Act''--``pro-Act.''
If you are pro-act, the act says that we should be ``encouraging the
practice and procedure of collective bargaining and by protecting the
exercise by workers of full freedom of association, self-organization,
and designation of representatives of their own choosing.'' That is
what the law says.
I am optimistic that the nominees before us today will bring this
perspective to their work at the Board. All five nominees have diverse
backgrounds and are deeply steeped in labor and employment law. While I
certainly do not agree with the politics or perhaps the ideology of
each nominee, it cannot be disputed that this is a competent and
experienced group of lawyers. Given their diverse backgrounds and
qualifications, there is no reason this package of nominees should not
be confirmed with strong bipartisan support.
All five of these nominees have been thoroughly vetted. For the two
most recent nominees--Kent Hirozawa and Nancy Schiffer--the vetting
process has been quick, but it has been thorough. They have submitted
all of the paperwork that we receive for our nominees. They have
appeared before our committee in a hearing, answered any questions.
They have met with staff for both sides, and they have answered all the
written questions posed by members of my committee. They have
demonstrated themselves to be impressively qualified and capable, and I
look forward to their future service on the Board.
So I believe the time has come to start a new chapter for the NLRB.
It is time to ratchet down the political rhetoric that has recently
haunted this agency and let the dedicated public servants who work
there do their jobs. Indeed, I hope today's votes mark a new beginning
for the Board, with a new energy and vitality, a new spirit of
collaboration. A revitalized NLRB is a critical part of our continued
efforts to build a strong economy and a strong middle class. It is long
past time to put the Board back in business and to tone down the
rhetoric.
I say to my friends on the other side--again, a vocal minority--
certainly they can vote against the nominees. That is their right. That
is their privilege. But do not use the nomination process to try to
shut down the Board or to thwart the implementation of the National
Labor Relations Act.
I am sure there were times when a majority of the Board was appointed
by Republican Presidents and they were probably more promanagement. I
cannot think of one right now, but I am sure they probably made some
decisions that I would not be in favor of. But they did it openly.
There are also times under a Democratic President when the Board would
probably have three members who would be more from the labor side than
management side. But that is the ebb and flow.
Quite frankly, for most of the times in the past, even though
Republican Presidents had put nominees on the Board who were probably
more promanagement or came from the management side--they would have
three of those and then two from the worker or labor side--they still
ran the Board in a nonpartisan fashion and reached agreements in an
open fashion that were implementing the National Labor Relations Act. I
would be hard pressed to think of a time when the Board acted in
contradiction to what the act actually says.
Until recently--and this has just broken down in the last few years
when President Obama's nominees to the Board, in the first instance,
were filibustered when the President had to give recess appointments to
nominees. Of course, a recess appointment can only last so long, and
then that person has to leave the Board. As I said, there was a threat
by a Member on the Republican side to filibuster nominees before they
were even sent down. That means the Board would have been unable to
operate. So the President then gave a recess appointment to two
nominees to keep the Board functioning. That then found its way into
the courts.
We have a couple of courts that decided the President did not have
the power to do a recess appointment the way he did it. Other courts
have taken different pathways. So that set of facts in that case is
winding its way to the Supreme Court. It probably will be decided some
time next year. But that is what happens when people do not let
nominees who are fully qualified--fully qualified--come to the floor to
get an up-or-down vote.
So I am very pleased this agreement that was reached a couple weeks
ago to not filibuster nominees included the National Labor Relations
Board. So we have an agreement from the Republican side that they will
not filibuster these nominees. We have five of them. This is the first,
Mr. Hirozawa. I am hopeful that, again, since they have been thoroughly
vetted, we can move ahead expeditiously to vote on them and that we
will not take the full 8 hours to debate these nominees and that each
one of them--each one would have 8 hours. But, hopefully, we can
collapse that and have the votes on the nominees at some time later
this afternoon, and, as I said, turn a new chapter in the NLRB. Put
them down there on the Board and let them do their work, and tone down
the political rhetoric a little bit on the National Labor Relations
Board.
Mr. President, I ask unanimous consent that time during all
postcloture quorum calls on the Hirozawa nomination be charged equally
to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. JOHANNS. 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. JOHANNS. Mr. President, I ask unanimous consent that I be allowed
to speak for 5 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Budget Control Act
Mr. JOHANNS. Mr. President, as we begin our final week of legislative
activity prior to the August work period, I rise today to discuss the
fiscal challenges that will await us on our return. When the Senate
gavels back into session on September 9, we will be only 3 short weeks
away from the end of the fiscal year. We will have only 15 business
days to reach an agreement on all 12 appropriations bills and avoid a
government shutdown.
[[Page S6033]]
Unfortunately, our progress toward reaching this goal has been less
than stellar. The transportation-housing appropriations bill we are
currently considering is the first of 12 bills that has even been
brought to the Senate floor. Consider this: We cannot even agree to
comply with the spending limits mandated under current law. We are
headed for a big multitrain pileup.
Last Congress, the Senate and the House made a promise to the
American people--made a promise about a basic level of fiscal
constraint on our appropriations process; not enough, but a step in the
right direction. As a part of the Budget Control Act, which passed with
bipartisan support and was signed by the President, we committed to
capping appropriations spending at certain levels for each of the next
10 years.
Less than a year ago, the majority leader emphatically proclaimed
them binding when he said:
We passed the Budget Control Act. We have agreed to all of
those numbers. They are done. They are agreed to.
In only the second year of this 10-year schedule, the 12
appropriation bills are mandated to spend no more than $967 billion.
That is a huge number to almost everyone. It is simply a whole lot of
spending, almost $3 billion a day. But my colleagues on the other side
want to spend even more. In fact, they want to spend well over $1
trillion this year.
You see, they want to pretend the Budget Control Act never passed and
was never signed into law. They want to keep on spending as if there is
some kind of alternative reality. But sadly that is not the case. Our
Nation's deficit is still too large. We are still miles away from a
balanced budget. The national debt continues on a course toward
disaster. Yet, apparently, we are going to ignore the appropriations
caps we all agreed to 2 years ago--not by an insignificant amount, an
additional $91 billion above the legal limit in the next fiscal year
alone.
As a new member of the Appropriations Committee, I have been
surprised to watch week after week bills being advanced that simply
ignore current law. With a $17 trillion national debt, we cannot simply
imagine our way out of this crisis. But by ignoring the Budget Control
Act, that is exactly what we are attempting to do.
I continue to believe very strongly that we should be preparing bills
that are consistent with current law, abiding by the spending caps we
voted for and were signed by the President. I think we should even do
more than that, but complying with the current law is the bare minimum.
What does all of this mean? Who gets hurt if we ignore the BCA caps?
Well, ignoring the BCA spending levels is not free money we can print
down at the Treasury Department. Spending over the BCA caps simply sets
the stage for yet another round of sequester cuts. We all remember how
popular that was beginning this year. The administration officials
claimed our health, our safety, our well-being, were in the balance as
they traveled the country, threatening services such as Head Start,
food safety inspectors, and massive delays at airports because of the
indiscriminate, across-the-board spending cuts.
That is exactly what we are going to see in a few weeks because the
majority would rather wash their hands of the responsibility to honor
the caps and continue spending as though actions do not matter. But
that is exactly the Senate's plan, spend $91 billion over what the law
allows. When $91 billion worth of across-the-board cuts kick in, they
hope the outcry from the American people is loud enough to convince us
here in Congress to add the additional spending to our national debt.
In my judgment, that is no way to run a railroad, but that seems to be
the plan: keep spending us right into another sequester, ignore the
consequences, and hope for the best.
It simply boggles the mind, especially when you consider all but two
Senate Democrats on the Appropriations Committee supported--I emphasize
supported--the increased level of spending restraint in the BCA.
Instead, we should have been using this time as an opportunity to
more thoughtfully reduce spending before the end of the fiscal year.
That is exactly what President Obama says he wants, when he says
Congress should use a scalpel to tame our budget problems, not an axe,
in across-the-board spending cuts. We can responsibly meet the $967
billion spending target in current law, but we have to try. But instead
of seizing the opportunity, we are once again shirking our
responsibility in the hopes that no one will notice. That is
disappointing to the American people. By exceeding the caps, we are
violating yet another commitment we have made to them to get our fiscal
house in order. You see, the American people figured this out long ago.
Washington simply spends too much and, most importantly, spends too
much of their own money. As their elected representatives, we should
not ignore this. I am hopeful we can change course, take this
opportunity and ensure that our spending bills total no more than what
we promised months ago.
Come October 1, the American people will have the opportunity to see
whether we have met that challenge. I hope for the sake of the country
they get better news than what appears today.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Schatz). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ALEXANDER. 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. ALEXANDER. I ask unanimous consent to speak as if in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Presidential Nominations
Mr. ALEXANDER. Mr. President, this week the Senate is voting on five
of the President's nominations for membership on the National Labor
Relations Board. I expect all five to receive up-or-down votes, as they
generally do, and I expect all five to be confirmed. The Board will
then have a full complement, with a Democratic majority of three and
two Republican members.
I would like to review for a moment what has happened and how we got
to this spot because it is an important moment in the history of our
ability as a country to maintain the checks and balances and certain
separations of power among the various branches of government and
especially to restrain the Executive, which has been an important part
of our country's history.
In January 2012 the President nominated two individuals to be members
of the National Labor Relations Board using his recess-appointment
power. He has that power in the Constitution. The only problem was that
the Senate wasn't in recess--at least that was our view. The Senate was
in a 3-day pro forma session. A 3-day pro forma session is a device
that was employed by Senator Reid, the distinguished majority leader,
when Bush was President, and he did it to keep President Bush from
using his recess-appointment power when the Senate was in recess.
Most of our Presidents have chafed under the restraints we have
placed upon our Executive. President Bush didn't like that, but he
respected it, and President Bush never made recess appointments while
the Senate was in session. But President Obama did--on January 4, 2012.
Senate Republicans objected strongly to that. After a great deal of
discussion, we decided to support a lawsuit challenging the
appointments. That lawsuit went before the DC Circuit Court of Appeals,
and the Circuit Court of Appeals agreed with our position and said in
effect that the President could not make a recess appointment when the
Senate itself had determined it was in session.
Since then there have been two other decisions by other federal
courts of appeals that have said what the President did on January 4,
2012, was unconstitutional. The case will come before the Supreme Court
this next term. No one knows what decision the Supreme Court will make,
but my sense would be that the Supreme Court will say to this President
or to any President that, Mr. President, you can't use your
constitutional power to make a recess appointment at a time when the
Senate is not in recess.
I said earlier that Presidents have chafed under these restraints on
the executive branch. That has been true ever since the days of George
Washington. George Washington imposed his own modesty and restraint
upon the American character when he resigned
[[Page S6034]]
his commission after the Revolutionary War, when he stepped down after
two terms as President and went back to Mount Vernon, when he asked to
be called Mr. President instead of Your Excellency. Ever since then we
have had many strong Presidents. They haven't all liked the idea that
Washington also helped write a constitution that created a congress and
a bill of rights, and the whole purpose of that was to restrain the
Executive. After all, our revolution was against a king, and most of
our Founders--not all of them, but the majority of the drafters of the
Constitution didn't want a king of the United States, they wanted a
president of the United States.
One of the most important checks upon the power of the Executive is
the Senate's power to advise and consent, the power to review. About
1,000 Presidential nominations come to us, and it takes a while to
confirm them. Sometimes it takes longer than the nominees think it
should. I have repeated many times on this floor that when the first
President Bush nominated me to be Education Secretary and the Senator
from Ohio held up my nomination for 3 months, I didn't think that was
such a good idea, but the Senate had the power to do it because the
Constitution restrains the Executive. Unfortunately, this President
didn't seem to read that chapter in American history because we have
seen during this President's time repeated efforts to circumvent the
constitutional checks on the Executive.
This administration has appointed more czars than the Romanovs had.
That is the way you get around the nomination process. This
administration's excellent Education Secretary has used a simple waiver
authority in effect to create a national school board. When Congress
says we don't want to appropriate money to implement ObamaCare, the
Health and Human Services Secretary says: Well, if Congress won't do
it, I will do it anyway; I will just go out and raise private money and
do it. Then we have recess appointments being made when the Senate is
not in recess. That is unconstitutional. If that could happen, the
Senate could adjourn for lunch and come back and we would have a new
Supreme Court Justice because the President said we were in recess.
So what is happening this week with these National Labor Relations
Board nominees has a special significance in our constitutional history
because not only did Republicans support a lawsuit challenging the
appointments, which we are winning and the case has been won in two
other Federal courts--but the President, after much discussion, has
withdrawn his two unconstitutionally appointed nominees.
I suggested that he do this in May when we had a markup of the five
nominees the President sent. I voted for three--the Democratic Chairman
and the two Republicans--and I voted against the two who were
unconstitutionally appointed. They were well-qualified people. That
wasn't the issue. The issue was that the Senate needed a way to express
its objection to this unconstitutional action by the Executive.
I suggested that what the President should do is withdraw those two
nominees and send us two new ones in the normal process--people who had
not stayed on after a Federal court decided they were
unconstitutionally there. These two unconstitutionally appointed
nominees have participated in more than 1,000 cases. These cases are
all subject to being vacated because there was no constitutional
quorum.
It leaves quite a mess in our labor laws. But the President withdrew
those two and now we are, this week, doing what the Senate normally
does. We are considering in the normal process his new nominees.
I am voting, as I said, for the two Republicans and the Chairman. The
Chairman was not unconstitutionally appointed. He did not continue to
serve as an unconstitutionally appointed person, since he was not so
appointed, so I voted for him in committee. I do not agree with the
Chairman and his view of labor laws, but I will have to take that up
during the next election. Elections have consequences, and when we
elect the President of the United States, he normally appoints people
who agree with him.
I am also voting for having an up-or-down vote. We almost always do
that with the President's nominees. There have only been a few times in
our history when we have not. We have never failed to have an up-or-
down vote on a Supreme Court Justice after they have come to the floor.
We have never failed to have an up-or-down vote on a district court
judge after they have come to the floor; the same in terms of circuit
courts. We never did, until Democrats started filibustering President
Bush's judges about 10 years ago when I came to the Senate. We all know
that story.
But normally we have an up-or-down vote, and we will be doing that
this week on the President's five nominees. I am voting against two of
the nominees when that up-or-down vote comes, and I wish to explain
why.
One is Mr. Hirozawa and the other is Ms. Schiffer. Both of them have
excellent legal backgrounds. But the problem is I am not persuaded--I
hope I will be proven wrong--that they will be able to transfer their
positions of advocacy to positions of adjudication; that they can be
impartial when employers come before them.
Employers as well as employees have a right, when they come before
the National Labor Relations Board, to expect that all five members,
whether Republicans or Democrats, from whatever background they might
have, will look at the case and decide it in an impartial way. It may
be possible that Mr. Hirozawa and Ms. Schiffer can do that, but I am
not persuaded that is true, and so while I am voting that they have up-
or-down votes, I am not voting for them.
The President has nominated for the Board three different individuals
who were employed directly by major labor unions. The first was Craig
Becker, who was counsel for two unions, and whose nomination was
rejected by a bipartisan vote in 2010. The second was Mr. Griffin. The
third is Ms. Schiffer.
I asked Ms. Schiffer at her hearing if she could remember other
examples of an administration stocking the National Labor Relations
Board with organized labor employees and she could not think of
examples and I could not either. Over the last several years, the
National Labor Relations Board seems to have veered away from
impartiality. Instead of preserving a level playing field and
protecting the carefully balanced rights of all parties, it has shown
favoritism toward organized labor leadership and very little interest
in the rights of individual employers or individual employees who want
to exercise their rights not to join a union.
In fairness, I have to admit this politicization of the National
Labor Relations Board has occurred both under Republican and Democratic
administrations, but I think appointing a person directly from a high
level job within a major labor union is not an example of trying to
move away from that trend.
The trend is causing confusion. One labor law professor at a
nationally recognized law school recently said she cannot even use her
labor law textbook anymore. She has to resort to handing out NLRB
decisions to explain the law because they are changing it so much. The
NLRB has ventured into rulemaking with two new efforts, both of which
have been stalled by the Federal courts.
In August 2011, the Board issued a new rule requiring employers to
post a biased employee rights poster in the workplace and making it an
unfair labor practice to fail to do so. Two separate Federal courts
have struck down the rule because it exceeded statutory authority.
In December 2011, the Board issued a new rule shortening the time in
which a union election is held, otherwise known as the ambush elections
rule. The DC Circuit Court struck down this rule on the grounds it
lacked a quorum, and the NLRB is appealing the decision.
So far, this administration's NLRB has sought to change the rules for
determining bargaining units, the process for certifying a
representation election, the legal obligation of employers to withhold
dues from employees' paychecks, even when there is no valid collective
bargaining agreement in place, the validity of arbitration provisions
in employment contracts, the legality of numerous well-intentioned
employee handbook provisions, the rules governing employee discipline
when there is no valid collective bargaining agreement in place, the
rules governing the
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confidentiality of employee witness statements given during a
legitimate investigation, the policy against forcing nonunion member
employees to pay for union lobbying expenses, the rules governing
employers' rights to limit access to their property, and attempting to
create an entirely new employer obligation and unfair labor practice
through the poster requirement struck down by multiple Federal
appellate courts.
The effect of all of these changes seems to me to tilt the playing
field in favor of organized labor instead of impartiality, which is the
directive of the statute. So fairness and impartiality is what I am
looking for in any NLRB nominee. These two nominees do not pass this
test. That is why I plan to oppose their nominations.
But the most important message from this week's debate is this: The
Senate is saying, not just to this President but to any President,
Republican and Democrat, that you may not abuse your constitutional
power of recess appointments by making appointments when the Senate
itself determines it is not in recess. To do so is an affront to the
separation of powers. It undermines checks and balances that were
placed upon the Executive at the beginning of our country as a way of
preserving our liberties. That is an important step in the history of
constitutional law in this country, and I am glad to see it has been
done in this way.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Heinrich). 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. I ask unanimous consent to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Littoral Combat Ship Program
Mr. McCAIN. Mr. President, over the last few years, I have spoken on
the floor about how the Department of Defense procures major weapons
systems--a system that is, to a large degree, broken, unfortunately. It
is now even more important. With defense funding likely to be
constrained to reduced levels in the coming years, our role as
legislators overseeing major defense acquisition programs to make sure
they are efficient and effective is as important today as it has ever
been--indeed, even more so.
A recently released Government Accountability Office--GAO--report
that is highly critical of the Navy's Littoral Combat Ship Program
brings me to the floor today. On that program, the Navy plans to spend
over $40 billion to buy a total of 52 seaframes and 64 so-called
``plug-and-play'' mission modules. These are modules that would be
moved on and off, depending on the mission in which the Littoral Combat
Ship is engaged. The combined capability of those modules with the
seaframes is supposed to give these ships their intended lethality.
Until recently, my main concern with this program has been the
unbridled growth in the cost to build the seaframes of the lead ships:
the Freedom--the steel hull version--and the Independence, which is an
aluminum trimaran version. The Navy appears to have addressed that
problem. While the cost to build the seaframes for the follow-ships is
still about double the program's original, overly optimistic cost
estimate--which is not unusual--the cost to complete the construction
appears to have stabilized at about $450 million each.
Today I am concerned about another very serious problem: that the
Navy will buy too many of these ships before the combination of their
seaframes, with their interchangeable mission modules, has been proven
capable of performing the missions these ships are supposed to perform.
In other words, the Navy will not know whether this Littoral Combat
Ship meets the combatant commanders' operational requirements until
after it has procured more than half of the 52 planned ships. This is
particularly troubling inasmuch as the Littoral Combat Ship fleet will
comprise more than one-third of the Navy's surface combatant ships.
The Littoral Combat Ships' stated primary missions are antisubmarine
warfare, mine countermeasures, and surface warfare against small boats,
especially in the littorals. These three primary missions appear
oriented toward countering, among other things, some of the littoral or
coastal anti-access/area-denial capabilities that have been fielded in
recent years by potential adversaries.
The Navy took delivery of the first of two ships--the Freedom and
Independence--more than 3 years ago. But the ship called Freedom
actually deployed, albeit with limited capability, to Singapore in
March and has experienced many of the technical challenges normally
associated with a prototype ship. The decision to deploy the ship
Freedom prior to the completion of critical developmental and
operational testing may be good salesmanship on the part of the Navy,
but the current plan to buy more than half of the total Littoral Combat
Ship fleet prior to the completion of operational testing plainly
contradicts defense acquisition guidelines and best procurement
practices--and amounts to a case of ``buy before you fly,'' to borrow a
phrase from aircraft acquisitions.
It also increases the risk that the program will incur additional
costs to backfit already built Littoral Combat Ships with expensive
design changes identified through late testing and evaluation or,
worse, operational use.
As is the case in several other major defense acquisition programs,
the problem here is ``excessive concurrency''--that is, an overlap
between development and production that exposes the program to a high
risk of costly retrofits to earlier units in the production run. It
sounds simple, but this is the problem that for years rendered the
Joint Strike Fighter Program effectively unexecutable and that led to
the terminations of the Army's multibillion-dollar Future Combat
Systems Program and the Air Force's Expeditionary Combat Support System
Program.
As to the Littoral Combat Ship, the General Accountability Office
spelled out this problem in the report it released just a few days ago.
According to the GAO:
There are significant unknowns related to key LCS
operations and support concepts and the relative advantages
and disadvantages of the two variants. The potential effect
of these unknowns on the program is compounded by the Navy's
aggressive acquisition strategy. By the time key tests of
integrated LCS capability are completed in several years, the
Navy will have procured or have under contract more than half
of the planned number of ships. Almost half of the planned
ships are already under contract, and the Navy plans to award
further contracts in 2016, before the Department of Defense
makes a decision about full rate production of the ships. The
Navy will not be able to demonstrate that mission packages
integrated with the seaframes can meet the minimum
performance requirements until operational testing for both
variants [the Freedom and the Independence] is completed,
currently planned for 2019.
I repeat: 2019.
I again voice my concern that the Navy plans to purchase many, if not
most, of the Littoral Combat Ships in the program before knowing
whether the ships will work as advertised and as needed.
The GAO report's bottom line recommendation is to limit future
seaframe and mission module purchases until the LCS Program achieves
key acquisition and testing milestones that would help make sure that
the program delivers required combat capability. I agree completely
with the GAO. GAO's concerns are shared by the Pentagon's independent
chief tester and even the Navy itself, in an internal report called the
``OPNAV Report'' or ``Perez Report.'' I highly recommend that anyone
who has an interest in the Littoral Combat Ship read these reports.
In terms of the costs to national security and to the taxpayer, we
simply cannot afford to continue committing unlimited resources to an
unproven program that may eventually account for more than one-third of
the surface combatant fleet. The LCS seaframe and mission modules are
at different points along the acquisition life cycle. We need to put a
pause on additional ship purchases and synchronize the plans for
testing the seaframes and the mission modules to make sure the Navy is
executing a coherent acquisition strategy that will deliver combat
capability responsive to what our operational commanders actually need.
[[Page S6036]]
Also, the Navy has to lay out a clear top-level plan on how these
ships will be used in response to reasonably foreseeable, relevant
threats around the world. In other words, it needs to decide the
concept of operation--or CONOPS--that this ship class will support.
According to a declassified internal Navy report released last Tuesday,
``There are two options: Building a CONOPS''--that means concept of
operations--``to match LCS' current capabilities or modifying the ship
to better meet the needs of the Theater Commanders.''
The report goes on to say: ``The ship's current characteristics limit
operations to a greater extent than envisioned by the CONOPS. . . .''
The second option is to ``modify the ship to support the warfighting
requirements. Our review identified opportunities to modify several of
the ships' characteristics to more closely align with the intent of the
original CONOPS.''
Right now, it seems as though whatever combat capability LCS can
muster is driving its mission, not the other way around, as in most
ships. In other words, the Littoral Combat Ship appears to be a ship
looking for a mission. But just to perform its three currently intended
primary missions, the Navy is looking at significant design changes and
increasing Littoral Combat Ships' crew size, even though it has already
bought about 30 percent of all of the LCS ships it intends to buy. That
could increase its procurement and life cycle operation and support
costs well beyond current estimates and strain its affordability. Given
how many frigates, minesweepers, and patrol crafts the Navy currently
plans to retire over the next 5 years in favor of Littoral Combat
Ships, this is particularly troubling.
Notably, the Government Accountability Office also reports: ``Current
LCS weapon systems are underperforming and offer little chance of
survival in a combat scenario.''
In this regard, the Government Accountability Office appears to agree
with the Pentagon's chief independent weapons tester. As this top
Pentagon official has noted, before proceeding beyond early production,
this program should complete initial operational testing and evaluation
to determine that it is effective, suitable, and survivable. But LCS is
not doing so. Why not? We need an answer to that. If, for whatever
reason, the Navy believes it must deviate from that practice, what plan
will it put in place to mitigate the resulting concurrency risk?
Let me be clear. To justify the purchase of the remaining 32 ships in
the program, the Navy must first provide credible evidence based on
rigorous, operationally relevant and realistic testing and evaluation,
that this ship will in fact be able to adequately perform its primary
stated missions and meet combatant commander requirements. Congress
must, at a minimum, thoroughly review this program before authorizing
funding in fiscal year 2015 to buy the next four LCS's and require the
Secretary of the Navy to certify, on the basis of sound written
justification arising from sufficient initial operational testing and
evaluation, that the LCS ships will be able to adequately perform their
intended missions and provide our operational commanders with the
combat capability they need.
The American people are--quite rightly--tired of seeing their
taxpayer dollars wasted on disastrous defense programs such as the Air
Force's failed ECSS Program or the Army's Future Combat System Program
or the Navy's VH-71 Presidential Helicopter Replacement Program. LCS
must not be allowed to become yet another failed program in an already
unacceptably long list of amorphous acronyms that--after squandering
literally billions of taxpayer dollars--have long since lost meaning.
On the LCS program, the Navy must right its course--today.
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. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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