[Congressional Record Volume 164, Number 180 (Wednesday, November 14, 2018)]
[Senate]
[Pages S6951-S6954]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Tennessee Valley Authority

  Mr. ALEXANDER. Good.
  Mr. President, as the world knows, the country's largest public 
utility is the Tennessee Valley Authority and serves 9 million 
customers in our seven-state region. It is enormously important to our 
State of Tennessee. Its CEO, Bill Johnson, announced today that he is 
leaving. I will have more to say about him later, but he and the Board 
of Directors have led TVA in an excellent direction, and it is now up 
to the Board of Directors to choose his successor. It is a big job. As 
I said, it is a $10 billion-a-year company.
  John Ryder, of Memphis, was nominated by President Trump 282 days ago 
to be one of those Directors. He has been approved by voice vote by the 
Environment and Public Works committee. For the last 176 days, he has 
been waiting for confirmation. He has the approval of the ranking 
Democrat on the committee, the Senator from Delaware, Mr. Carper. He 
has the approval of the ranking Democrat on the subcommittee, Senator 
Whitehouse. It is time Mr. Ryder, who is consistently named one of the 
finest lawyers in Memphis--he has been recognized by Business Tennessee 
Magazine as among the 101 Best Lawyers in Tennessee and listed in Best 
Lawyers since 1987. In other words, he is a well-qualified, 
noncontroversial nominee who is needed by the people of our region to 
select a successor to Bill Johnson, the CEO. The other nominees have 
been confirmed. The nominee from Alabama was confirmed. The nominee 
from Kentucky was confirmed but not the nominee from Tennessee.
  I am taking the step today of coming to the floor to ask that he be 
confirmed by consent. I can think of no reason why he would not be.


         Unanimous Consent Request--Executive Calendar No. 856

  Mr. President, I ask unanimous consent that the Senate proceed to the 
consideration of executive calendar No. 856, the nomination of John 
Ryder to be a member of the Board of Directors of the Tennessee Valley 
Authority; that the Senate vote on the nomination with no intervening 
action or debate; that if confirmed, the motion to reconsider be 
considered made and laid upon the table; that the President be 
immediately notified of the Senate's actions; that no further motions 
be made in order; and that any statements relating to the nomination be 
printed in the Record.
  The PRESIDING OFFICER. Is there an objection?
  The Senator from New York.
  Mr. SCHUMER. Reserving the right to object. Very simply, there has to 
be some comity here. Republicans cannot

[[Page S6952]]

block Democratic nominees and then expect Republican nominees to go 
through, so I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Tennessee.
  Mr. ALEXANDER. To my friend from New York, who is he talking about? 
He knows my record. I worked with him three times when President Obama 
was there, worked with him directly to make it easier for President 
Obama to have nominees.
  Let me go through that because I think it is important the people 
know the efforts we made together. In 2011, working with the Senator 
from New York, we got rid of secret holds. We permitted waiver of the 
72-hour rule that was used to block nominations and delay. We created 
272 expedited privilege nominations. In 2012, we eliminated Senate 
confirmations for 163 positions, all to make it easier for President 
Obama to make Presidential nominations. In 2013, we created some new 
rules which said that Executive nominees could only be debated post-
cloture for 8 hours and district judges for 2 hours.
  I personally made sure the current chairman of the Democratic Party, 
Tom Perez, got cloture so the Senate could vote on him. I voted against 
him, but I made certain he could come to a vote.
  When President Obama had a vacancy in the Department of Education in 
his last year, I went to President Obama and said: Mr. President, I 
think it is inappropriate for us not to have a confirmed Senate nominee 
in a principal position like U.S. Secretary of Education. If you will 
please nominate John King, with whom I disagree, I will make sure he is 
confirmed, and we confirmed him. That has been my record in terms of 
dealing with nominees of the President of an opposite party.
  I ask through the Chair, why pick on Tennessee? Why confirm Kentucky 
nominees, why confirm Alabama nominees, why work with me in three 
different Congresses to make it easier for President Obama to confirm 
nominees, why applaud me for allowing the chairman of the Democratic 
Party today to be confirmed as Secretary of Labor and then block a 
nominee for the Tennessee Valley Authority, who is eminently well-
qualified, who is supported by the Democratic members of the committee 
who have jurisdiction and who is needed on the Board to pick a CEO for 
the millions of people in the seven-state region? Why pick on 
Tennessee, I would say to my friend from New York through the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, we have to have some bipartisanship here. 
I understand my friend from Tennessee. He is my friend. I hope he would 
work with us to create bipartisan packages to get nominees through. 
That is not happening. We need to do it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I don't know what he is talking about. 
I am the chairman of the Health, Education, Labor, and Pensions 
Committee. I have, during my time, regularly confirmed Democratic 
nominees and Republican nominees. I have worked with the Democratic 
leader to make it easier for President Obama to confirm nominees and 
now he gives me no specific reason why he is objecting to the nominee 
from Tennessee.
  I ask him further--even though he has left the floor in what I would 
consider to be an act of discourtesy while I am speaking to him, and I 
mean that. I am very upset about this. I consider that an act of 
discourtesy when the Democratic leader leaves the floor while I am 
speaking directly to him through the Chair on a matter of importance to 
9 million people in our area. I ask him what kind of precedent is he 
setting, the Democratic leader.
  Let's think about this for a minute. One hundred and nineteen times 
the majority leader, Senator McConnell, has had to file cloture to cut 
off debate in order to just get a vote on a nominee like Mr. Ryder, 
named one of the best lawyers in Tennessee since 1987, approved by 
Democratic colleagues, needed by the Tennessee Valley Authority, 
certain to be confirmed here almost unanimously. One hundred and 
nineteen times the Democratic opposition has required the Republican 
leader, Senator McConnell, to use a whole week to confirm a nominee. 
That happened 12 times to President Obama. That happened four times to 
President George W. Bush. It happened 12 times to President Clinton and 
zero times to George H.W. Bush, whose administration I served in. That 
is the number of cloture votes on nominees required for previous 
Presidents in the same timeframe as President Trump. What kind of 
precedent does this set?
  Let's talk about that for a moment. This is a body of precedents. For 
many years, we always confirmed nominees with 51 votes. That was until 
George W. Bush became President of the United States and the Senator 
from New York, before he was a Democratic leader, and others, decided 
they would use a cloture vote, a requirement for 60 votes, to block 
George W. Bush's nominees.
  That was the first time that it had happened. Up until that time, the 
tradition of this body was that while you could require 60 votes, at 
least since about 1920, no one ever did. Even Clarence Thomas--and that 
was a very controversial Supreme Court nomination--was confirmed by 52 
to 48. No one thought at the time of requiring that his nomination 
require 60 votes. They could have but didn't. So that was the tradition 
in the Senate--always nominations by 51 votes. The one exception in the 
Supreme Court throughout the history of the Senate was Abe Fortas, 
under President Johnson, and that was an unusual situation. Never had a 
Federal district judge been required to have 60 votes.
  In fact, what the Democratic leader--I wish he were here on the floor 
to hear this--may have forgotten is that Senator McConnell tried at one 
time to require a cloture vote of Judge McConnell in Rhode Island, and 
I and a number of other Republicans objected because we had never done 
that before. We had never said that you have to have 60 votes to be 
confirmed as a Federal district judge. So we rejected that motion by 
the Republican leader, and as a result of that, never in the history of 
the Senate had we required 60 votes for a Federal district judge to be 
confirmed. Never in the history of the Senate had we required 60 votes 
for a Cabinet member to be confirmed. But then in the early years of 
George W. Bush, in 2003, I had just come to the Senate. The Senator 
from New York and others said: Well, we will do that for the first 
time. We will block George W. Bush's nominees.
  I don't want to debate that back and forth today except to say that 
became a precedent. And, sure enough, what goes around comes around. A 
few years later, by 2013, things had gotten so that the Democrats 
decided to break the rules to change the rules and used the so-called 
nuclear option, and when Republicans did the same thing that the 
Senator from New York had done, Democrats overruled that and seated 
judges on the Court of Appeals.
  So as a result of the precedent set by the Senator from New York on 
judges with George W. Bush, we had the nuclear option in the Senate, a 
using of that. Republicans then did what the Democrats did. That is 
what you call precedent.
  Well, it happened a second time. That first use of the nuclear option 
left it so you could require 60 votes in order to have a Supreme Court 
Justice.
  When President Trump nominated Neil Gorsuch to be a Supreme Court 
Justice, the Democrats filibustered Justice Gorsuch, an enormously 
well-qualified person. Remember, throughout the history of the country, 
we had not blocked a Supreme Court Justice by filibuster with that 
single exception of the Abe Fortas instance. Yet they did that. And as 
a result of that, the Republicans then said: Well, we will use the 
nuclear option and change the rules to 51. So that is what happened 
with the precedent.
  Now let's look at this precedent. Are we going to block for 282 
days--let me get my numbers exactly right; it is 176 days on the 
calendar awaiting confirmation--a noncontroversial Board of Directors 
member for the Tennessee Valley Authority. That is what we have come 
to.
  So are we going to say, as the U.S. Senate minority, that we will 
effectively block--we will effectively block--those kinds of 
nominations and effectively keep an elected President from setting up a 
government? Is that what we are going to say?

[[Page S6953]]

  It looks like that is what we are saying if you are going to say that 
119 times the majority leader of the Senate of whichever party will 
have to invoke cloture. That means it takes 3 or 4 days to confirm even 
a noncontroversial Presidential nomination, when there are 1,200 such 
nominations.
  Let's say we have a Democratic President one day and a Republican 
U.S. Senate, or a Republican President and a Democratic U.S. Senate. 
But let's just for purposes of discussion, since we are talking about 
precedent, let's say the Democrats make a big comeback and elect a 
Democratic President next time around. It is only 2 years before the 
Presidential election.
  And let's say the Republicans stay in power and still have a majority 
in the Senate and Republicans say: Well, we are a body of precedent. We 
will do to the Democratic President exactly what the Senate did to 
President Trump.
  If Republicans are in the majority, the Democratic President might 
not even be able to staff the government because the Republicans could 
say: We will not confirm anybody.
  Or even if the Republicans were to be in the minority and there were 
a Democratic President and the Republican minority did to the next 
Democratic President what this minority is doing to this one, then 119 
times you would see this happen, at least through the first part of the 
administration.
  So where does that leave us as a Government of the United States?
  Well, here is where it would leave us. It would leave us with a 
government of the United States with the Senate having no role in the 
appointment of its principal officers. That is what it would leave, 
because there is on the books legislation called the Vacancies Act, 
which allows any President of the United States to appoint acting 
people to all of the positions in the government. They can serve for 
210 days at least, and there are a wide variety of people who can be 
chosen for those positions. They can be people who are confirmed or 
they can be senior people in the government.
  We happen to have an example of that today in the United States 
Department of Justice--Matthew Whitaker. The Attorney General, Jeff 
Sessions, whom I admire and all of us know, resigned at the request of 
the President. And instead of nominating or picking a Senate-confirmed 
successor as the Acting Attorney General of the United States, 
President Trump did, as the Vacancies Act allows him to do, appointed 
Matthew Whitaker, Attorney General Sessions' Chief of Staff. I suppose 
a President could do that for every position.
  I mentioned earlier that toward the end of President Obama's term, he 
had no Education Secretary. Arne Duncan had decided to leave, and they 
used the Vacancies Act to allow John King, who was not confirmed by the 
Senate, in effect, to be the Acting Secretary of Education.
  As I said earlier, I had that conversation with President Obama. I 
said: Mr. President, I believe that, institutionally, we should have a 
Senate-confirmed Secretary of Education. Even if I disagree, as I did, 
with John King's education views, I will see to it that if you nominate 
him, he is confirmed. President Obama did that. He respected the 
importance of having institutionally confirmed principal officers in 
the government, and then we confirmed him.
  So I don't know where this is leading us. I think this is the same 
kind of dangerous precedent that was established when Democrats for the 
first time used a 60-vote opportunity to block President George W. 
Bush's judges, and what the Democrats then did--what most of them tell 
me they wish they hadn't done--was that they used the nuclear option 
and required a 51-vote cloture. So now they can't eventually block 
anyone, even John Ryder, if we all decide that we want to take a whole 
week to confirm him. That is what Senator McConnell has been doing. He 
has been putting a priority on district judges and on circuit judges, 
and the Democrats have been saying: We are going to slow you down.
  But you can't win that way. All that happens is that the Senate 
gradually gives up its advise-and-consent authority under the 
Constitution to help the President form a government. That is one of 
the important parts of what we do in this government.
  The late Justice Scalia said: Every tin horn dictator has a bill of 
rights. What the United States has that is different is checks and 
balances. One of the most important parts of that checks and balances 
is for the Senate to advise and consent on about 1,200 different 
Presidential nominees.
  That is why I worked with Senator Schumer and other Democrats, like 
Senator Levin, and Republicans, like Senator McCain and Senator 
Barrasso, and we took steps during the Obama administration three 
different times to reduce the number of Presidential nominees, to speed 
up Presidential nominees, and to put 272 of them at a privileged status 
so they could come through more rapidly.
  This goes in entirely the opposite direction, and it is a terrible 
precedent for this institution. So I am extremely disappointed.
  I am disappointed for John Ryder, who is a prominent lawyer, who 
thought he might get to be on the TVA Board and was nominated 282 days 
ago. I am disappointed for the people of Tennessee and the Tennessee 
Valley Authority region. There are millions of people who have had a 
very good Chief Executive Officer for the TVA for the last several 
years in Bill Johnson and now need a fully functioning Board of 
Directors to pick his successor, and yet the Democrats say: Even though 
we approve of him, even though we have no reason not to confirm him, we 
are just going to slow the train down just because we can.
  Well, if they can, someone else can later. That does not serve the 
people well. I don't see any partisan political advantage to the 
Democrats for doing something like this. I never have thought that. I 
always thought that it was the right thing to do to let a President 
staff his administration. If you don't like the nominee, you can always 
vote no, but at least you can have a vote.
  So he is talking about bipartisan packages. This nominee has been 
waiting for a long, long time. So I am not through with this. I think 
this is something that the people of Tennessee are going to be very 
disappointed about, and I would ask my friend from New York again: Why 
are you picking on Tennessee? Why would you confirm the Alabama 
nominee? Why would you confirm the Kentucky nominee? And why would you 
not confirm the Tennessee nominee? Why would you make him swing in the 
wind for 176 days when everybody approves of him--even the Democratic 
ranking member of the committee and Democratic ranking member of the 
subcommittee? Something smells here, and it is a bad precedent for the 
Senate. It is not good for our country, and it is completely contrary 
to the way that I have enjoyed working with the Senator from New York 
in 2011, 2012, 2013 to make it easier, then, for President Obama, but 
later for every President of the United States, to have his 
Presidential nominees promptly considered by the Senate and voted up or 
down.
  While I am on the subject of the Tennessee Valley Authority, I want 
to mention the fact that Bill Johnson, who has been the Chief Executive 
Officer of the Tennessee Valley Authority for the last several years 
announced today in a Board meeting of the TVA of Mississippi of his 
intention to retire next year. My hope would be that John Ryder, whose 
term could have begun earlier this year, would be there to help select 
his successor. Bill Johnson and the board have done a good job for the 
last few years with TVA. They have reduced its debt. They have kept 
electricity prices low. They provided a reliable, ample supply of 
electricity for a rapidly growing part of America, making it easier for 
us to recruit jobs, and the air is clean.
  As I will say more about this in just a minute, the new Foothills 
Parkway opened just outside the Great Smoky Mountains this past 
weekend, and it was packed with local people. On Sunday I was up there 
myself. We can see the mountains because TVA, over the last several 
years, has put pollution control equipment on all of its coal plants, 
and we could immediately see the difference. Other Federal regulations 
have made the air cleaner.
  In fact, a lawsuit from North Carolina with TVA to keep dirty air 
from Tennessee from blowing into North Carolina has now been made a 
Federal regulation, and dirty air from Kentucky or Texas or other 
States can't

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blow into Tennessee. The result is that when you come see the Great 
Smoky Mountains, you can call them the Great Smoky Mountains and not 
the great smoggy mountains, which they were some time ago.
  So I would congratulate Bill Johnson on his tenure as CEO. He has got 
TVA on the right track, and I would urge the Board of Directors to 
think long and hard as they select someone to fill his shoes because as 
a former Governor of that State and now as a U.S. Senator from 
Tennessee for 16 years, I know the importance of having ample supply of 
low-cost clean electricity to heat our homes, run our computers, and 
attract our jobs.
  Now, I have a Thanksgiving thought, to move away from the 
disagreeable, acrimonious dealings of the Senate for a moment.