[Congressional Record Volume 167, Number 193 (Wednesday, November 3, 2021)]
[Senate]
[Pages S7701-S7713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MOTION TO DISCHARGE

  Mr. SCHUMER. Madam President, pursuant to S. Res. 27, the Committee 
on the Judiciary being tied on the question of reporting, I move to 
discharge the Committee on the Judiciary from further consideration of 
Jennifer Sung, of Oregon, to be United States Circuit Judge for the 
Ninth Circuit.
  The VICE PRESIDENT. Under the provisions of S. Res. 27, there will 
now be up to 4 hours of debate on the motion, equally divided between 
the two leaders, or their designees, with no motions, points of order, 
or amendments in order.
  Mr. SCHUMER. I ask for the yeas and nays.
  The VICE PRESIDENT. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.
  Mr. SCHUMER. Madam President, for the information of the Senate, we 
expect to vote to discharge the nomination to occur following the votes 
that are scheduled to begin at 5:15 tonight. Therefore, Senators should 
expect three rollcall votes at 5:15 p.m. These votes will be on the 
confirmation of the Prieto and Nayak nominations and on the motion to 
discharge the Sung nomination.


                John Lewis Voting Rights Advancement Act

  Madam President, in reference to what just occurred on the floor in 
terms of voting rights, this is a low, low point in the history of this 
body. A few moments ago, Senate Republicans, for the fourth time this 
year, were presented with a simple question: Will they vote in favor of 
starting debate--merely a debate--on protecting voting rights in this 
country?
  In today's case, they would join Democrats in proceeding to the John 
Lewis Voting Rights Advancement Act, which would reinstate longstanding 
and widely embraced Federal protections on the right to vote.
  With just one exception, Republicans once again obstructed the Senate 
from beginning its process. Given the chance to debate in what is 
supposed to be the world's greatest deliberative body, Republicans 
walked away.
  Today's obstruction was only the latest in a series of disturbing 
turns for the Republican Party. For over a half a century, the policies 
of the Voting Rights Act have commanded bipartisan support in this 
Chamber. It has been reauthorized five times, including by Presidents 
Nixon, Reagan, and Bush. Many of my Republican colleagues in office 
today have worked in the past to improve and approve preclearance 
provisions similar to the ones contained in today's proposal.
  It was good enough for Republicans back then; it should have been 
good enough for them today. But after today's vote, it is clear that 
the modern Republican Party has turned its back on protecting voting 
rights. The party of Lincoln is becoming the party of the Big Lie.
  Democrats have laid out the facts for months: we are witnessing at 
the State level the greatest assault on voting rights since the era of 
segregation. Before our very eyes, the heirs of Jim Crow are weakening 
the foundations of our democracy.
  And by blocking debate today, Senate Republicans are implicitly 
endorsing these partisan actions to suppress the vote and unravel our 
democracy.
  We have said all year long that if there is anything worth the 
Senate's attention, it is protecting our democracy. We have tried for 
months to get Republicans to agree. We have lobbied Republicans 
privately. We have gone through regular order. We have attempted to 
debate them on the floor.
  We have presented reasonable, commonsense proposals in June, August, 
October, and now in November. Each

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time, I personally promised my Republican colleagues they would have 
ample opportunities to voice their concerns, offer germane amendments, 
and make changes to our proposal.
  At no point did we ever ask them to vote for our legislation. We have 
simply been trying to get our Republican friends to start debating, 
just as the Senate was intended to do.
  On the floor, off the floor, we held public hearings, group 
discussions with Senators and one-on-one meetings with the other side 
to try and win some support. Senators Manchin, Kaine, Tester, King, 
Durbin, Klobuchar, Leahy, and more have all met with Republicans to 
initiate a dialogue. And at every turn, we have been met with 
resistance.
  The sole exception in 10 months has been our colleague, the Senator 
from Alaska, who voted in favor of advancing today's legislation. 
Today, I thank her for working with us in good faith on this bill.
  But where is the rest of the party of Lincoln? Down to the last 
Member, the rest of the Republican conference has refused to engage, 
refused to debate, and even refused to acknowledge that our country 
faces a serious threat to democracy.
  Madam President, the Senate is better than this. A simple look at our 
history shows we are better than this. The same institution that passed 
civil rights legislation, the New Deal, the Great Society, and the 
bills of Reconstruction should be more than capable of defending voting 
rights in the modern era.
  But, as anyone who has been here more than a few years knows, the 
gears of the Senate have ossified over the years. The filibuster is 
used far more today than ever before--by some measures, 10 times as 
much compared to decades past. Some might wonder if any of the great 
accomplishments of the past would have a chance of passage today. Would 
the Social Security Act pass the modern Senate? What about the Medicare 
and Medicaid acts? What about the Civil Rights Act of 1964? We sure 
hope they would, but it is difficult to see with the way this Chamber 
works today.
  As I said a few weeks ago, I believe the Senate needs to be restored 
to its rightful status as the world's greatest deliberative body. It 
has earned that title precisely because, yes, debate is the central 
feature of this body, but at the end of the day, so is governing, and 
so is taking action when needed once the debate has run its due course.
  This is an old, old fight in this Chamber. Over 100 years ago, the 
great Senator of Massachusetts, Henry Cabot Lodge, said: ``To vote 
without debating is perilous, but to debate and never vote is 
imbecile.'' Imbecile. ``To vote without debating is perilous, but to 
debate and never vote is imbecile.'' We should heed those words today 
and explore whatever path we have to restore the Senate so it does what 
its Framers intended: debate, deliberate, compromise, and vote.
  We can't be satisfied in this Chamber with thinking that democracy 
will always win out in the end if we aren't willing to put in the work 
to defend it. It will require constant vigilance to keep democracy 
alive in the 21st century.
  Madam President, just because Republicans will not join us doesn't 
mean Democrats will stop fighting. This is too important. We will 
continue to fight for voting rights and find an alternative path 
forward, even if it means going at it alone, to defend the most 
fundamental liberty we have as citizens.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin). The junior Senator from Wyoming.
  Ms. LUMMIS. Madam President, I am joining my colleagues today to 
highlight the real harm that the President's overreaching vaccine 
mandates are causing the people of Wyoming and the United States.
  While I am vaccinated and support others making the decision to get 
the COVID-19 vaccine to protect themselves, I am very concerned about 
unacceptable actions by the executive branch to force Americans to get 
the vaccine. Frankly, I cannot stay silent about these blatant 
violations of personal freedom.
  Over the last several months, the President has signed numerous 
Executive orders mandating vaccines for Federal workers, contractors, 
and employers with over 100 workers. This is unacceptable. These 
mandates are far-reaching and burdensome.
  Additionally, these mandates will not achieve the desired results of 
stopping the spread of COVID-19. Instead, they will only further 
politicalize healthcare choices, sow greater discord across the Nation, 
and exacerbate our employment crisis. I worry they will also further 
harm our supply chain issues. All of these should concern every 
American, particularly with the holiday season rapidly approaching. 
Consumers are going to face empty shelves in stores, and for what is 
available, prices will continue to rise.
  In the freight industry, these mandates could mean that up to one-
third of employees will be leaving their jobs. On Monday, POLITICO 
noted that several trucking companies are looking to end their work 
with the Federal Government as the vaccine mandate deadlines loom 
closer. This doesn't only impact the shipping industry but also our 
defense and law enforcement sectors as well. Former Deputy Under 
Secretary for Industrial Policy William Greenwalt noted that ``even a 
couple of welders or engineers who walk off their jobs on a highly 
classified program could wreak havoc with our national security.''
  Meanwhile, it is more than a couple of individuals who are looking at 
leaving. Defense contractor Raytheon says they expect to lose thousands 
of employees when the mandate goes into effect.
  Finally, I would like to give an example of how this is impacting my 
home State of Wyoming. Across the Nation, we are facing nursing 
shortages, but in Wyoming, it is becoming critical. I have heard over 
and over again from my hospitals, clinics, and nursing homes that they 
just don't have the staff. Many have left the field, whether due to the 
strain of COVID-19 or because they believe they can find better work as 
traveling nurses. This has left our healthcare community shortstaffed.
  If we lose additional nurses from these vaccine mandates, my State is 
looking at losing healthcare capabilities. This means turning away 
patients and potentially closing nursing homes. These patients, at the 
end of their lives, frequently have nowhere else to go. If there is no 
one else to care for them, the healthcare system will be at the end of 
its rope trying to find ways to care for these patients.
  For these reasons, I cannot support these mandates, nor should anyone 
else. Knowing the damage these mandates will cause, the President must 
immediately rescind these Executive orders and find a better way to 
keep our Nation safe.
  The PRESIDING OFFICER. The junior Senator from Indiana.
  Mr. BRAUN. We are here today because of the vaccine mandate. When I 
got back home over the break, I never had so many friends and fellow 
business owners who actually made it a point to find me and tell me 
that this can't be happening.
  With the full navigation that we have taken through COVID, I have 
always been clear: Take it seriously. We don't know how this is going 
to end up.
  It has been over a year and a half. The point back in Indiana is that 
most businesses, schools, all organizations have put protocols in place 
to where it has not been an issue. It has been a nonissue of, really, 
transmissions within the workplace.
  We finally get through it, we found the rhythm of what works, and now 
you have a mandate that says: Hey, Federal employees, Federal 
contractors--they contacted me too. Some think they will lose 10 to 25 
percent of their workforce. Businesses are in the same place.
  When you look at what we have done, where we are, it just does not 
make sense. That is why I am leading the Congressional Review Act 
effort to try to get all Senators on my side--some on the other side of 
the aisle--to say: Hey, we don't need it. Enough is enough.
  Look at the practical reasons because businesses and other 
organizations have tried and they have been successful at keeping their 
employees and their customers safe and healthy. This is coming at a 
point in time where it is going to be salt in the wound. It

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will be the biggest wallop these entities have had, especially when we 
have been paying them to keep their employees, up to 500 employees. Now 
we are going to force them to lose them en masse down to 100. It 
doesn't make sense. That is why I am glad I am leading the effort and 
glad other Senators are here talking about it.
  Please pull back on something that is beyond the pale, that we don't 
need, and that is going to hurt the places we have been trying to help.
  I yield to the Senator from Florida.
  The PRESIDING OFFICER. The junior Senator from Florida.
  Mr. SCOTT of Florida. Madam President, in December, President Biden 
promised he would not require Americans to be vaccinated or require 
that they carry vaccine passports. Less than 10 months into his 
Presidency, I think he must have forgotten what he said, breaking 
promise after promise and going back on his word. How can the American 
people believe anything he says?
  Americans are sick and tired of the government telling them what to 
do and are more than capable of making the right choices to protect 
themselves, their families, and their neighbors. But now, because King 
Biden has gone back on his word or forgotten what he said, millions of 
Americans are facing an ultimatum: Get the vaccine or lose your job. 
For companies, it is either make your employees get the jab or lose 
your Federal contract.
  This is a complete overreach of power. Biden wants to control our 
lives and make the government be the authority in every area of your 
life. Nowhere in the Constitution does it say that Biden has this 
power--nowhere.
  Listen, I had COVID. I am grateful that I was able to get vaccinated. 
I hope that all Americans talk with their doctors and consider making 
the same decision. It is a personal decision every individual gets to 
make, but that is not how President Biden sees it. That is why I 
introduced multiple pieces of legislation to push back on these 
unconstitutional vaccine mandates.
  I have introduced the Freedom to Fly Act to prohibit the TSA from 
requiring Americans to show proof of vaccine or produce a vaccine 
passport and protect the privacy of American families. I don't believe 
that the Federal Government has any business requiring travelers to 
turn over their personal medical information to catch a flight.
  I introduced the Stop Mandating Additional Requirements for Travel 
Act to prohibit the feds from requiring Americans to wear masks on 
public transportation like Amtrak or on airplanes.
  I also introduced the Prevent Unconstitutional Vaccine Mandates for 
Interstate Commerce Act, which would prevent Federal Agencies like the 
Department of Transportation from requiring proof of vaccination for 
companies trying to do business across State lines.
  Last month, I introduced legislation to prevent vaccine mandates from 
being tied to a few of our Federal assistance programs, like Medicare, 
Social Security, food stamps, and public housing. I hoped everyone in 
this Chamber would have agreed that we shouldn't force struggling 
American families to choose between Social Security disability checks 
and a personal health decision.
  Most Americans would be shocked if a politician said it is acceptable 
to deny someone health insurance or food stamps simply because of their 
vaccine status. Sadly, Madam President, this is exactly what happened 
on this floor last month. All I did was request that Americans, 
regardless of vaccine status, should be able to access a few of our 
most essential government programs. My Democratic colleagues disagreed 
every time. The Democratic Party leaves no room for disagreement. They 
leave no room for compromise. I think it is shameful.
  But unlike Joe Biden and Democrats in Washington, I don't believe 
that government knows better than the American people. My parents 
didn't have much of a formal education, but they worked hard and made 
the choices they felt were right for the health and well-being of our 
family.
  As Biden tries to control the lives of every American family, our 
economy is suffering. Inflation is already skyrocketing, and these 
vaccine mandates are going to add to it.
  Only weeks ago, the Federal Reserve published its latest Beige Book 
report. In the report, the Fed found that vaccine mandates were widely 
cited by businesses as a reason for low labor supply and hiring and 
retention issues. The Federal Reserve admitted what I have been warning 
about for weeks: Joe Biden's unconstitutional vaccine mandates are 
causing higher turnover, driving Americans out of their jobs, and 
further fueling the devastating supply chain and inflation crisis 
plaguing American families.
  When I think about the impact of vaccine mandates, I think about my 
dad. My dad was a truckdriver. Anyone who has driven trucks or has been 
close to someone in that line of work knows how demanding the job can 
be. There is already a driver shortage in this country, and we can't 
afford to lose any more due to unconstitutional vaccine mandates.

  Consider first responders. Dozens of Massachusetts State troopers are 
threatening to resign over vaccine mandates. Los Angeles County could 
lose up to 10 percent of its police force. Chicago may see up to 50 
percent of its police refusing to comply with vaccine mandates. Seattle 
is preparing for a mass exodus of officers in the coming weeks due to 
people who are quitting over vaccine mandates.
  For the past several months, we have been seeing rises in violent 
crime and problems in retaining police officers. We should not add to 
that ongoing problem by forcing police officers to choose between their 
jobs and taking a vaccine.
  I have called on Secretary Raimondo and Secretary Buttigieg to come 
before the Commerce, Science, and Transportation Committee to explain 
what they are doing to prevent U.S. supply chains from completely 
crumbling under Biden's failed policies and mandates. Sadly, I haven't 
heard a word from them, but I do see them on TV all the time. These 
people love to get on CNN and be commentators. That is not their job. 
Their job isn't to just point out a problem; their job is to fix it.
  Now, we have all seen the disruption that this virus has caused. Many 
of us know someone who has fallen extremely ill or who has died because 
of COVID. That is why I am very appreciative of all of those who have 
worked so hard to develop the vaccine. But I am 100 percent against 
these unconstitutional mandates.
  Being vaccinated is a decision every American gets to make for 
himself. It is an authoritarian overreach by King Biden to threaten 
people with job loss unless they get the vaccine. Think about it. Why 
on Earth would a President do something they know is going to cost 
someone their job?
  Our job within government is to provide people with good information 
so they can make informed decisions and help create jobs, not kill 
them. But we are seeing that everything Joe Biden does makes things 
worse for families and businesses in Florida and across our great 
country. It is time he rescinds his proposed unconstitutional vaccine 
mandate.
  I yield the floor to my colleague from Tennessee.
  Mrs. BLACKBURN. I thank the Senator from Florida.
  Madam President, I ask unanimous consent to enter into a colloquy 
with my friend Senator Marshall.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BLACKBURN. Madam President, it is no secret that President 
Biden's COVID-19 vaccine mandates have drawn major opposition here in 
the Senate. My Republican colleagues and I have introduced multiple 
pieces of legislation that chip away at the various impractical, 
unethical, and downright unconstitutional aspects of this latest power 
grab.
  Last week, I introduced the Keeping our COVID-19 Heroes Employed Act, 
which would pull essential workers out from under these mandates and 
stop the White House from unilaterally firing them for refusing to 
submit to a shot. Think about how ludicrous that is. This, of course, 
is the heart of the issue.
  These pieces of legislation are not anti-vaccine. In fact, our 
opposition isn't about vaccines at all. I have been vaccinated, and I 
encourage people to talk to their physicians. This is all about the 
precedent the Biden administration is trying to set; namely, that it

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is acceptable for the Federal Government to stand between a patient and 
their doctor and to overrule science and personal choice in the name of 
their personal political agenda.
  I think my colleague Senator Marshall knows a thing or two about 
preserving the importance of that doctor-patient relationship.
  Is that correct, Senator?
  Mr. MARSHALL. It is, indeed. Thank you so much, the senior Senator 
from Tennessee, for asking me about something so near and dear to my 
heart--the patient-physician relationship.
  I just want to start my remarks by saying that I support the vaccine. 
I support the vaccine, but I also support an individual's right to 
decide whether he wants the vaccine or not. That is why I think it is 
so important to have this patient-physician relationship.
  I had the duty and the honor to treat thousands of women with a 
virus. I learned very quickly that the same virus could cause different 
problems for different patients, and it was based on their previous 
medical histories and their underlying medical problems as to what my 
advice might be.
  What my concern today is, is that so many of these heroes of 
yesterday, the COVID-19 heroes of yesterday, are now being treated so 
poorly. They are being told to get the jab or else lose their jobs. 
This mandate is going to lead to unemployment. It is going to lead to 
more inflation and further disrupt our supply chain. I just wish I 
could paint a face of all of these people from Kansas who are reaching 
out to me, saying: Please don't make me make this choice between the 
jab or my job.
  I think of the nurses whom I worked with in Liberal, KS, when the ICU 
was overflowing. I think of the nuclear engineer folks and the union 
workers at Wolf Creek Nuclear energy who kept our electricity on. I 
think of those union workers who work for the Department of Defense 
contracts in the aerospace industry, and now they are being kicked in 
the face. They are being told that they are no longer essential, that 
they are no longer heroes.
  Senator Blackburn, I am supposing there are heroes in Tennessee who 
are now being forgotten as well.
  Mrs. BLACKBURN. Yes, indeed. You are correct, Senator Marshall.
  As I have said before, Tennessee is a supply chain and logistic 
State: shipping, transportation, manufacturing. These are things that 
help form the backbone of our economy, and those industries employ 
thousands upon thousands of people in our State.
  I will tell you, these thousands of people are speaking up, just as 
you have said they are speaking up in Kansas. Every day, I hear from 
people who see what is happening on the ground, from small business 
owners to truckdrivers, and they are sounding the alarm bells. They 
know that Joe Biden's mandate will destroy their industries. They are 
just not asking for carve-outs; what they are saying is, give us a plan 
A, a plan B, a plan C; give us options.
  Senator Marshall, I believe you have taken a different approach to 
pushing back on some of these mandates.
  Mr. MARSHALL. Well, thank you Senator. Indeed, there are more options 
out there. There are, indeed, more tools in the tool shed that we can 
use. We plan to oppose any efforts to enforce Joe Biden's vaccine 
mandate with all the other tools at our disposal, including blocking 
cloture on any continuing resolution in the absence of language 
protecting Americans from the mandates. In fact, 50 GOP Senators 
recently supported this as an amendment to the CR in September.
  Senator Blackburn, I know that you also would be concerned about 
using any type of future funding to enforce this unconstitutional 
mandate.
  Mrs. BLACKBURN. Yes, indeed, Senator. I am very concerned.
  The Biden administration has, indeed, weaponized the U.S. Government 
against workers who love their jobs, against workers who are trying to 
earn a living and support their families. We have to stand up and 
defend them. Think about it. The Biden administration is using taxpayer 
dollars to implement a program designed to fire the very people we need 
to repair our supply chains, to bring manufacturing plants back online, 
and to keep the public safe.
  Yes, our law enforcement officers are very concerned about this, but 
don't take my word for it. Ask some of these law enforcement unions. 
Ask the Fraternal Order of Police, the National Sheriffs' Association, 
and the National Border Patrol Council what will happen if these 
mandates force them to fire their unvaccinated agents and officers. 
They are waving red flags right now because these mandates aren't just 
impractical and unethical; they are dangerous. They will take these men 
and women off the frontlines and send them to the unemployment line and 
make us vulnerable.
  Am I correct on this point, Senator Marshall?
  Mr. MARSHALL. Senator Blackburn, absolutely. I can't agree with you 
more.
  One of the big concerns I have is of our safety as well as our 
national security. I know that both Tennessee and Kansas have Army and 
National Guard units, and I have been told that perhaps half of the 
enlisted soldiers have not had their vaccines yet, and I encourage them 
to do that. But if they get separated from the military, it is going to 
leave a huge hole in our national security.
  I am also concerned about those Active-Duty soldiers who are now 
being separated from the military as well for refusing the vaccine, and 
I am concerned about what is going to happen to their records going 
forward. I was so discouraged when I found out the White House 
suggested these soldiers get a dishonorable discharge.
  In case you don't know what a ``dishonorable discharge'' means, you 
could be treated like a felon. You lose your VA benefits, and you may 
lose some of your Second Amendment rights and some of your voting 
rights as well.
  Certainly, again, there is the impact on national security in losing 
thousands of our soldiers.
  Senator Blackburn, I am sure that you have so many people who are 
reaching out to you of the COVID-19 heroes of Tennessee. I appreciate 
your bringing this bill to the floor, and I am so happy and honored to 
support it.
  Mrs. BLACKBURN. Thank you, Senator.
  I am appreciative to the Senator from Kansas and to all of my 
colleagues who have joined me on the floor today to fight this 
dangerous precedent set by these mandates.
  I think it is so vitally important for my colleagues on the other 
side of the aisle to understand that the American people are not 
interested in playing chicken with Joe Biden--not at all. This isn't 
contrarian politics to them; this is a line in the sand between a 
power-hungry President who wants to strip them of their fundamental 
rights and get them fired from their jobs.
  I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Alabama.
  Mr. TUBERVILLE. Madam President, during the recent Senate Armed 
Services Committee hearing, I asked the Secretary of Defense what I 
thought was a simple question: As the leader of the Department of 
Defense, was he against dishonorable discharges for members of the 
military who decided not to get the COVID vaccine. He hemmed and hawed 
around, but he never answered my question. But, to me, it is simple. 
The answer should be that we will not dishonorably discharge those who 
serve honorably.
  Our country is defended by the bravest men and women in the world. 
All raised their hands and pledged their lives to defend our Nation and 
our way of life. Our servicemembers stand watch while we go to work, 
while we spend time with our families, and while we enjoy freedoms they 
vow to protect.
  When COVID broke out, our military was there for America. Military 
members were mobilized in all 50 States to serve as nurses and doctors 
at hospitals. They drove ambulances and set up food banks. They 
delivered critical supplies. They worked to keep order. But how does 
the President thank them for their service? With a dishonorable 
discharge for deciding not to take the vaccine. That is ridiculous.
  Receiving a dishonorable discharge means they will lose all of their 
veterans' benefits and their pensions. In some States, it is on par 
with having a felony conviction. That means they lose their ability to 
vote or to carry a gun, not to mention what it does to their ability to 
find a new job. A dishonorable discharge is and should continue to be 
handed down for only the

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most reprehensible conduct in the military.
  Now, I am for the vaccine. I have taken it, and my family has taken 
it, and I continue to encourage others to talk about it and talk to 
their doctors about it. I also respect the chain of command. I know how 
important it is for soldiers to follow orders. But this vaccine is 
still new, and I am sure the Department of Defense can look at other 
ways to manage our force rather than to put a stain on the reputations 
of the men and women who wanted to serve and have served their country, 
which brings me to another point about the impact of the Biden 
administration's vaccine mandates.
  When President Biden made his sweeping vaccine mandates, he did so 
with the hubris or excessive confidence that Americans would just 
support the policy simply because it was his competent administration 
that implemented them, but the mandates are shortsighted, they are ill-
conceived, and they threaten our national security. Here is how.
  First, it creates a false choice for our defense contractors. They 
are forced to choose between coming to their job and working to support 
our military or taking a new vaccine that they don't want. Their 
decision should be between their doctor and their patient.
  Second, it puts the important and critical performance of our 
defensive industry in jeopardy. Alabama alone is home to 5,000 defense 
contractors. When these firms are unable to perform, our country is at 
risk.
  Third, the guidance for compliance is changed with little or no 
warning. This moving of regulatory goalposts creates uncertainty and 
drives up compliance costs, especially for smaller firms that lack 
large HR departments.
  So last week, I called on the Senate Armed Services Committee 
Chairman Jack Reed to schedule a hearing on this issue. I want to hear 
straight from the small business owners who are struggling to figure 
out how to comply. We need to know just how disruptions in their 
ability to complete their work may impact the defense supply chain.
  I also want to hear from expert witnesses within the Department of 
Defense. We need to have a full picture of the current state of vaccine 
compliance.
  If the Senate were to take action on a solution, it is critical that 
we have all the facts.
  I also sent a letter to the President, urging him to reverse course 
on his Federal contractor mandate.
  On Monday, the White House backed down from their arbitrary deadline 
of December 8, with the announcement of new flexibilities in their 
guidance. While this step is in the right direction, they haven't gone 
far enough.
  The vaccine mandate is still a compliance burden on small 
contractors, no matter how flexible the White House tries to make them.
  Our workforce still will be unnecessarily impacted and our national 
security will still be at risk.
  So I would encourage the White House to focus on protecting 
Americans' liberties while pursuing a holistic strategy to combat 
COVID.
  It is time that President Biden recognizes that mandates are not the 
answer; frank conversations between doctors and patients are the 
answer.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Hickenlooper). The Senator from Utah.
  Mr. LEE. Mr. President, the United States is facing economic 
challenges that we haven't experienced in this country for decades. The 
supply chain crunch is leading to backlogged ports, and that, in turn, 
is spilling over into empty shelves. Inflation is exacting a punishing 
toll on American families; on their budgets, on their quality of life.
  And it is not the well-off families that are being most harmed by it, 
no. It is those who are least prepared to endure that. It is America's 
poor and middle class; those who are working hard to survive from day 
to day, trying to reach that American dream, trying to ascend the 
economic ladder that the American dream has long enabled.
  Now, each of these problems, in its own right, would be a really 
serious and vexing primary concern for most people and most businesses, 
even during normal economic times. But these are far from normal 
economic times.
  In fact, when businesses are polled, their primary concern isn't 
about any of these things. It is the labor shortage. Businesses are 
struggling to find workers. The Joint Economic Committee Republicans 
released a report recently explaining that Americans have lost many 
vital connections to work. Government policies and social pressures are 
leading to a lower labor force participation rate than at any time in 
decades.
  This trend is worrying not only because work helps Americans put food 
on the table--and it does, and it is necessary to do that--but also 
because work often provides a sense of accomplishment and belonging and 
self-worth. Work is a social good in its own right.
  But businesses across the country are struggling to find workers, and 
that is leading to more of these same problems, leading to higher 
prices on things that people need to buy. All this is making everything 
else more complicated, more difficult for America's poor and middle 
class.
  I have spoken to businessowners in Utah, who are closing their doors 
for days each week because they can't find workers. Some businesses are 
offering extremely generous salaries and signing bonuses for those who 
are willing to work. Nonetheless, they are still struggling to find 
employees.
  Now, work is often the primary connection Americans have with peers. 
Work provides a sense of involvement, taxpayer responsibility, and 
community with others. Work is also the way we get things done. It is 
how we manufacture, farm, mine, and build. Work is a requisite for 
prosperity at any level, in any form.
  Unfortunately, President Biden is making work more difficult and less 
enticing, increasingly less possible. Raising taxes on Americans gives 
them less incentive to work, and as the Penn Wharton Budget Model 
shows, the Democrats' trimmed-down plan would cost almost $4 trillion 
over 10 years and cost American taxpayers $1.5 trillion in new taxes.
  Through his unconstitutional and sweeping vaccine mandate, President 
Biden is forcing countless American workers out of a job and preventing 
others from joining or rejoining the workforce. This is far from a mere 
abstract constitutional transgression. This is a constitutional 
violation that goes far beyond the text of a document that extends 
deeply into the lives of the American people, especially the poor and 
the middle class.
  I have now heard from over 300 Utahans who are at risk of losing 
their livelihoods due to this mandate. Their stories are gut-wrenching. 
Their stories are tragic. Their stories remind me of how indefensible 
and inexcusable and immoral this vaccine mandate truly is.
  These are ordinary, everyday, hard-working Americans who all too 
often are just trying to make ends meet, put food on the table, provide 
for their families, and otherwise get by.
  Many of them have legitimate medical, moral, or religious objections. 
Many of them work for employers who have no desire to implement the 
mandate and who themselves are worried about their ability to keep 
their businesses open.
  Now, I have heard from a number of Utah businesses whose management 
and ownership have expressed these exact same feelings, and I have 
heard from Utah workers who have expressed these feelings over and over 
and over again. Let me tell you about a few people I have heard from 
who have described this awful situation.
  Now, one Utah business in the high-tech space has expressed concern 
about losing valuable employees due to the mandate. The business that I 
am referring to at the moment has implemented policies to encourage 
vaccination and recognizes, of course, the value that vaccination can 
bring to the workforce. Nonetheless, the businessowners are 
uncomfortable with making these decisions for their employees.
  The business's management said: ``We feel strongly that it is not the 
government's right to require vaccination.''
  They are absolutely right.
  A growing Utah food manufacturer with 350 employees is very worried 
about the mandate's impact on that company's ability to keep product 
moving. This business plays an important role in food supply chains in 
Utah, throughout the Western United States, and throughout the country.

[[Page S7706]]

  Leaders of this business said: ``This mandate is government 
overreach, is outside the scope and purpose of OSHA, and will have dire 
consequences on our company and our economy in this extremely tight 
labor market.''
  They know that some of their workforce would quit if the mandate were 
enforced.
  Another Utah business is similarly worried. This larger operation's 
leadership said: ``We are in a difficult labor situation. It is a daily 
struggle to be fully staffed and produce the products our customers 
expect. Some of our employees have stated they will quit if forced to 
be vaccinated. Any disruption in our labor force will be critical to 
our operations, and a disruption in our labor force not only means some 
of our customers may not receive product they expect, it may mean 
local, time-sensitive supply would not get processed. That disruption 
would be devastating.''
  Now, it is important here that I not be misunderstood. I am against 
the mandate, but I support the vaccine. I have been vaccinated. I have 
encouraged others to be vaccinated. These vaccines are helping 
countless people avoid the harms associated with COVID-19. But this 
mandate is already doing serious harm to our economy and to people who 
want the right, the basic human right, to make their own medical 
decisions.
  That is why I, along with my colleague, the Senator from Kansas, Dr. 
Marshall--Senator Marshall and I have sent a letter directly to the 
majority leader, Senator Schumer. We have advised him, months before 
the current spending period ends in December, that we will oppose any 
funding legislation that enables the enforcement of President Biden's 
employer vaccine mandate.
  It is essential to remember here that Congress, the branch of 
government most accountable to the people at the most regular 
intervals, this is where the Constitution places the power of the 
purse. This is where the Constitution places the power to pass 
legislation. Congress, not the President, has the authority to decide 
how Federal funds are spent.
  Now, we believe our funds would be misspent in this way or any 
endeavor that would harm Utahans and Kansans and all Americans, would 
worsen our difficult economic situation, or would take away fundamental 
medical freedoms.
  This now marks the thirteenth day that I have come to the Senate 
floor to oppose the mandate. I am going to continue to do so for as 
long as it takes to beat the mandate. I encourage all of my colleagues 
to join me in this effort.
  And when I say that, I want to be clear. I am not speaking to one 
side of the aisle or the other. I invite all to join me in this cause. 
Why? Well, because Americans overwhelmingly--regardless of whether they 
live in a red State or a blue State or a purple State, Americans 
overwhelmingly oppose this mandate.
  According to a poll recently reported on in Axios--hardly a rightwing 
publication--revealed that 14 percent--just 14 percent--of Americans 
believe that the response to someone not receiving the vaccine should 
involve them losing their job.
  Just 14 percent of Americans agree with President Biden that you 
should have to choose between keeping your job and getting a vaccine 
that might go against your religious beliefs or that might worsen a 
preexisting medical condition that has caused your doctor to advise you 
to be cautious in getting the vaccine.
  These decisions are not those of the President of the United States 
to make. You see, he doesn't have that power. My copy of the 
Constitution says that the power to make law rests in this branch of 
government, the legislative branch, the Congress. And my copy of the 
Constitution says that he can't make law, which he essentially did when 
he purported to have and purported to plan to exercise the power 
unilaterally, acting alone, to require every worker at every employer 
that has more than 100 employees--more than 99 employees to get the 
vaccine or be fired.
  This isn't right. Deep down, the American people know it isn't right. 
Deep down they know that this is not a partisan issue. This is an 
unabashed power grab by the President of the United States. It is not 
one that is of the sort that the American people will accept kindly.
  I have said before, I am not sure I can think of a more egregious 
example of a President exercising power that is not his own in many 
decades.
  This is, in some ways, reminiscent of President Harry Truman's 
decision to seize every steel mill in America in order to make sure 
that the output could be dedicated to the Korean war effort. The 
American people didn't smile upon that one. Neither did the Supreme 
Court of the United States, which, within weeks of President Truman's 
action on April 8, 1952, decided that he didn't have that authority.
  Some may ask: Well, if it is so unconstitutional here, why hasn't the 
Supreme Court acted?
  I will tell you why. Because President Biden hasn't had the basic 
decency to issue an order explaining a basis for his authority and 
providing a basis for someone to challenge the legitimacy of his 
authority to order every business with more than 99 employees--to force 
its entire workforce to get vaccinated. He hasn't had the decency to do 
that.
  Consequently, no one can sue yet. Consequently, employers everywhere 
with more than 99 employees are forced to guess as to what it would 
look like. And in the meantime, their lawyers with good reason and 
their risk management departments and their human resources departments 
are understandably saying: We don't want to get caught flatfooted, 
especially because we have been threatened as employers with $70,000 
per day, per person, mounting civil monetary penalties.
  This would be crippling to any business.
  So what are they doing?
  Well, they are getting ahead of it. They are guessing as to what the 
most extreme version of the OSHA mandate might look like, and then they 
are exceeding that. And they are already in the process of threatening 
termination and, in some ways, in some cases, imposing it.
  In many cases, they are not even having the decency to fire them. 
They are, instead, putting them on unpaid administrative leave. This is 
especially cruel because it renders them completely ineligible for 
unemployment.
  So, Mr. President, I ask you: Is this moral? Is this just?
  Setting aside for a moment the question of whether this is 
constitutional--and I assure you, unequivocally, it is not. But even 
setting aside that question, is it moral? Is it proper? Is it 
acceptable to do this to America's poor and middle class?
  It is not.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I want to thank Senator Lankford for 
letting me take 3 minutes to honor an Iowan who recently passed away, a 
former Member of the House of Representatives. And I think there is 
only one other United States Senator who would know who I am talking 
about, and this would be Senator Schumer, who served with this former 
Member of Congress from 1981 to 1995.


                         Remembering Neal Smith

  Mr. President, I would like to take a moment to pay tribute to former 
Iowa Congressman Neal Smith, who passed away yesterday at the age of 
101.
  He was a true public servant. He entered public life for the right 
reasons and had no interest in self-promotion. He cared about Iowa and 
tried to do his best for our State, and he did.
  Neal Smith was a humble but impressive man. He was a decorated bomber 
pilot in World War II. After attending Drake University Law School with 
his wife, Bea, and opening a practice with her, he became active in 
local government.
  In 1958, Neal Smith was elected to the House of Representatives, 
where he served for 36 years. That is longer than any other Iowan has 
served in the House of Representatives.
  When I was first elected to Congress as the only Republican in the 
Iowa delegation, Neal Smith forgot about politics and was a mentor to 
me. I have never forgotten that. I try to follow his example. We worked 
in a bipartisan way on behalf of the people in Iowa, just as it should 
be.
  I remember Congressman Smith as a real defender of agriculture, small

[[Page S7707]]

business, as a great Iowan, and as a good friend.
  Barbara and I extend our condolences to his family. They will be in 
my prayers.
  I yield the floor and thank Senator Lankford.
  Mr. LANKFORD. Mr. President.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                                Vaccines

  Mr. LANKFORD. Mr. President, I have a real concern for our economy, 
for the future of what is happening right now, and a lot of it wraps 
around the vaccine mandates that are being laid down by President 
Biden.
  On September 9, President Biden had announced: I am losing patience 
with the American people, and it is time for you to get vaccinated.
  And he laid down a rule on every Federal worker, every Federal 
contractor, everyone in the military, and everyone who is in a private 
business with 100 employees or more. He created a new mandate.
  He literally reached into union shops and changed their collective 
bargaining agreement unilaterally and said: The President's going to 
add a new feature in your collective bargaining agreement, and it is 
going to be that you are going to have a vaccine or you are going to be 
fired.
  He told every police officer; he told every firefighter; he told 
every doctor, every nurse; he told every member of the military, no 
matter how many badges they wear or how many decorations they received: 
You will be fired if you don't follow my instructions.
  It didn't matter if they were frontline workers. It didn't matter if 
they laid their lives on the line all of last year. It didn't matter. 
He declared to them: You will be fired if you don't follow my 
instructions.
  He made it very, very clear: If you have already had COVID and 
recovered and have natural immunity, I don't care.
  If your personal doctor has told you not to--his perspective in what 
is coming down is, if the CDC from Washington, DC, says it's OK, it 
doesn't matter what your personal doctor says.
  While he said you can have a religious accommodation, so far, as I 
checked in with the military services, no one has been given a military 
or religious accommodation. And across the Federal workforce, I have 
yet to hear a soul getting a religious accommodation.
  The words are: ``We are going to pay attention to your local 
doctor.''
  The reality has been totally different. And we have pushed in every 
way possible against this administration, and will continue to do that 
not because it is unjust, not because, quite frankly, I think the 
vaccine is the wrong thing to do--I think it is the right thing to do--
but the mandate is absolutely the wrong thing to do.
  Americans have a lot of different reasons to not take a vaccine. 
Allow Americans to be Americans.
  I have a friend of mine who, by the way, is a liberal Democrat. Yes, 
I have liberal Democrat friends. He called me and said his son has had 
long-term COVID. Eight months he has been in recovery from COVID. He 
does not want to have the vaccine not knowing how his body will react 
to that. This week, he will lose his job because the President of the 
United States told him he is losing his patience.
  That is not right.


                        Build Back Better Agenda

  Mr. President, on a separate but related subject, we continue to be 
able to walk toward a $2 trillion proposal coming down. We hear the 
House is taking it up even in the next 24 to 48 hours. Of course, we 
heard that over and over again lately.
  There has been a real concern about what is happening in the economy 
because of rising inflation. Oklahomans are paying $175 more a month 
right now for their basic utilities, groceries, and gasoline--$175 more 
a month that they are paying because of the rising inflation that has 
happened this year.
  That inflation, you can take it right back to the middle of March, 
when a $2 trillion package was passed in this body on a straight 
partisan vote that everyone on this side of the aisle was saying: Don't 
do this. This will cause rising inflation.
  And it was done anyway.
  As simple as I can state it, it was if you add a lot of extra money 
and you discourage people from working, you will get fewer products and 
more buyers. It is not hard to be able to see what is going to happen 
as a result of that.
  Larry Summers, who used to be my Democratic colleagues' favorite 
economist--he was the National Economic Council director to President 
Obama--has been a very outspoken progressive economist. He wrote in 
February, challenging this body not to do that $2 trillion package, 
saying this:

       There is the risk of inflation expectations rising sharply. 
     Stimulus measures of the magnitude contemplated are steps 
     into the unknown. For credibility, they need to be 
     accompanied by clear statements that the consequences will be 
     monitored closely.

  At that same time in February, he said:

       Based on the proposal that's out there, there will be an 
     individual that normally has $22,000 worth of normal income 
     in a year that will move to $30,000 in benefits for the year, 
     and that will cause problems.

  And, boy, has it. Employment all over the country has had all kinds 
of chaotic moments where employers are trying to hire employees and 
they are making more on benefits than they are at work, and it has 
caused all sorts of chaos across our economy.
  It is interesting, several progressive economists in March of this 
year, right after the bill passed, made general statements, like: ``A 
relief plan is different than a stimulus.''
  It doesn't matter. It is not a stimulus. It is a relief plan, so we 
can spend as much as we want.
  This was my favorite--one of the economists came out and said: ``The 
risk of generalized overheating in the goods market appears low . . . 
''
  ``The risk of generalized overheating in the goods market appears low 
. . . '' That was the statement of the economists in March of this 
year.
  Yet the reality is, this year, there is a backup at the Port of Long 
Beach and people can't get supplies all over the country, and exactly 
what was forecast in February and March is occurring in our economy 
right now.
  Larry Summers again identified it this way. He made the statement:

       The pandemic had punched a $20 billion hole in Americans' 
     monthly wage income [and] Biden [has] proposed filling it 
     with $100 billion.

  He said:

       I know the bathtub has been too empty, but one has to think 
     about what the capacity of the bathtub is and how much water 
     we're trying to flow into it.

  What do I mean by that?
  That $2 trillion package that was in March caused all the economic 
issues of this year. It has caused all the inflation, all the 
challenges in employment across our economy and across our workforce.
  It is now being followed up, apparently, by another $2 trillion 
proposal that is coming in the coming days. If we had giant inflation 
with the last one--by the way, with the highest inflation rate since 
1982. If we had that inflation from that $2 trillion package, what is 
going to happen when you put another $2 trillion on top of the last $2 
trillion in this economy?
  The simple fact is, quoting Larry Summers, we don't know what will 
happen. We are literally taking ``steps into the unknown.'' But I can 
tell you, it is not hard to predict.
  That is just the economic issues.
  As I look at this package--it is hard to be able to look at the 
package that is being proposed. I have heard quite a few folks back in 
Oklahoma on the weekend say to me: What all is in this $2 trillion 
package that a couple weeks ago was at $3.5 trillion? Now we hear it is 
$2 trillion. What actually is in it?
  And I smile at them and say: I am not sure yet. I hear bits and 
pieces.
  To tell you how much it is moving around, last week, when it was 
released to the public, it was 2,400 pages. By this morning, it was 
1,700 pages. But wait. Now this afternoon, it is 2,000 pages long. That 
is in a week. It has moved from 2,400 pages to 1,700 pages, to 2,000 
pages, as the proposal continues to be able to change over and over 
again.
  It is incredibly difficult to be able to track what all is in it, but 
we can track some things that are in it.
  There is a massive hole that is holding for immigration, as we have 
now seen three different major proposals on immigration on how to be 
able to give amnesty to the largest number of people. Several have 
already been knocked down by the Parliamentarian, but it seems to come 
back again just to try

[[Page S7708]]

to find a new way to be able to do amnesty for as many people that are 
here illegally present in our country as possible. That seems to be a 
piece of this economic proposal that is out there.
  We do know in this proposal that it finds as many ways as possible to 
be able to fund gaps in Hyde funding.
  Now, what is that?
  Using Federal dollars to be able to pay for abortions in our 
country--an agreement that has been in our country since 1976--that we 
have strong disagreements on a child's life.
  I happen to believe that a child is a child is a child, and every 
child is valuable, no matter how small they are. Many of my colleagues 
on the other side of the aisle don't believe children are valuable 
until they can see them. They have to be born before they are 
valuable. I believe there is no difference in a child in the womb than 
a child outside the womb other than time.

  This bill is full of areas to go around the Hyde rules to start 
allowing the funding with Federal dollars to pay for the taking of 
human life.
  I am disappointed how obsessed my Democrat colleagues seem to be 
about finding new ways to pay for the taking of human life of children. 
That has not been so, even as recently as 2 years ago.
  Quite frankly, Senator Biden was outspoken about protecting the Hyde 
protections. Now, President Biden and this body seem to be focused on 
how many ways we can increase abortions in America.
  There are a lot of energy aspects in this: the new tax on natural 
gas, where just 5 or 6 years ago, we called the ``bridge fuel to the 
future'' to be able to reduce carbon. Now, natural gas is receiving 
punishment in this in brandnew taxes.
  There is a block on production from the Arctic National Wildlife 
Refuge. Some of my Democratic colleagues celebrate, saying: ``We are 
going to cut off anything from Alaska and protect that region,'' which 
is remarkable to me. We are now buying more oil from Russia than we are 
from Alaska, right now--twice as much, in fact, more oil from Russia 
than we are from Alaska.
  The Arctic National Wildlife Refuge is an area 19.3 million square 
acres--19.3 million acres. That is about half the size of my home State 
of Oklahoma. That is an enormously large area. And in that area, there 
are 2,000 acres that would actually be set aside for oil production. So 
to put it in perspective, ANWR is half the size of my State of 
Oklahoma, and the oil production area that will be needed is a third of 
the size of the airport that I fly out of, the Will Rogers airport in 
Oklahoma City.
  If you took a third of the size of the airport, that is the size of, 
actually, the oil production area that will be needed in an area half 
the size of my entire State. Yet that is being blocked in this bill.
  We will see the price of energy go up, but we will see a new benefit 
for electric vehicles that are here. For even very, very wealthy 
Americans, they will get a benefit of $12,500 on new luxury vehicles 
that they want to be able to purchase, as long as they are electric.
  There are direct attacks on the school choice in this bill that 
actually goes after any kind of private institution or faith-based 
institution. It says that you will get funding for a secular government 
school for one level, but if you are in a faith-based school, it is a 
different level or none at all.
  If you are in a pre-K program or a childcare program--and in many 
rural communities all across our State, when you come to Oklahoma, in 
many rural communities, the pre-K program and the childcare program is 
run from a local church. Oh, but they won't be allowed to be able to be 
a provider in this. You have to be a secular provider because religious 
institutions are being blocked out by this bill.
  It does supersize the IRS, though. It adds $79 billion to the IRS to 
increase audits--$79 billion. To give you a perspective of how big that 
is, the normal IRS budget for a year is $12 billion. Yet this bill 
gives an additional $79 billion to the IRS to be able to increase 
audits. And if anyone has a belief those audits are only going to 
connect to people that make $400,000 or more, I have a bridge to sell 
you.
  I have to tell you, as I read through the bill--and it does take some 
time, and it is difficult to be able to get through it because it is 
changing so much--I am amazed at some of the things that are in it that 
have been slipped through this: $350 million are sent to unions to 
provide for electronic voting systems for unions--$350 million. There 
are $4.28 billion being set aside for training activities in industry 
sectors and occupations for climate resilience. There are whole 
sections in this bill, as I go through it, that are set aside for 
specific areas: $20 million for State, local, and Tribal governments to 
mitigate online services to the dot-gov internet domain. To be able to 
help cities go to the dot-gov internet domain, there is $20 million 
that is set aside.
  And there are some set aside for even some of my colleagues who are 
here today on the floor: $49 million carve-out for Native Hawaiian 
climate resilience programs in the Office of Native Hawaiian Relations.
  It depends on the State that you are in and the perspective that you 
are in, but as I go through this bill and start identifying the 
programs, I hear broad descriptions of different programs, and I hear 
all these different sales of what is in it. But when you read through 
the bill, when you go through the details of the bill, this is the kind 
of stuff that you find.
  Oh, by the way, one last piece in this ever-changing bill, just 
within the last hour and a half, they have added a new section of the 
bill over in the House side. It is a bill dealing with State and local 
tax deductions that will help the wealthiest Americans get a bigger tax 
cut. Yes, I did say that correctly. Currently, for Americans who are in 
high-taxed States, they can only deduct $10,000 of their State and 
local taxes, only $10,000 off their State and local taxes that they can 
actually deduct from their Federal tax.
  The new proposal that just came out in the last hour from the House 
of Representatives increases that to $72,500 in deductions off your 
State and local taxes. That will be a great tax benefit to the 
wealthiest Americans--$72,500.
  All that we are asking is, Show us what the real bill is. Let 
Americans be able to see the real bill. Have the transparency and the 
ability to be able to actually track through what this will mean day to 
day, what this will mean to our economy, because we have seen what $2 
trillion did to our economy this March--what is another $2 trillion 
going to mean on top of all of that coming up this fall?
  I think we are walking into the unknown, except this time, I think we 
do know what is about to happen to our economy. We need to see this 
bill and stop this bill before it damages our economy even more than we 
have already been damaged.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I look forward to responding to my 
colleague in the future, but I can tell you that people I know around 
the country want to see their costs go down, and that is exactly what 
this bill is about. It is about bringing families' costs down, from 
childcare to taking care of loved ones; seniors; to bring down the cost 
of prescription drugs--something that has eluded our colleagues on the 
other side of the aisle, despite a lot of claims that they would do 
something about it.
  So we look forward to debating this bill and getting it done.


               American Innovation and Choice Online Act

  Mr. President, I come to the floor today to speak on behalf of a very 
important piece of new legislation that is bipartisan.
  I introduced this bill, the American Innovation and Choice Online 
Act, in the last month with Senator Grassley, who was here with us 
today and will be here shortly; as well as my colleagues Senator 
Durbin, the chair of the Judiciary Committee; Senator Lindsey Graham, 
the former chair of the Judiciary Committee; Richard Blumenthal, who is 
here with us today; Senator John Kennedy of Louisiana; Senator Cory 
Booker; Senator Josh Hawley; Senator Cynthia Lummis; and Senator Mazie 
Hirono, who is here with us today; as well as Senator Mark Warner.
  America has a major monopoly power problem, and nowhere is this more 
obvious than with tech. It is because, in part, it is 20 percent of our 
economy.

[[Page S7709]]

And while we love the new jobs, the new ideas, the new technology that 
have come out, we all know that you can't just do nothing on privacy, 
do nothing on competition, and that our competition laws haven't been 
updated in any serious way since the invention of the internet.
  I am here, again, joined with Senator Grassley. I am going to let him 
go ahead of me and then turn to Senator Blumenthal and Senator Hirono, 
and I will finish up because they have been very patient.
  I so appreciate Senator Grassley's leadership in this area; one, to 
make sure the FTC and the Department of Justice Antitrust have the 
funding they need with the bill that we passed through this Chamber to 
update merger fees, as well as the work that we are doing right now. It 
is so important on self-preferencing.
  It is this simple: Companies, just because they are dominant 
platforms, shouldn't be able to put their own stuff in front of 
everyone else that advertises on our platform. They shouldn't be able 
to steal ideas and data and develop products off the people who are 
simply trying to advertise their products on the platform and develop 
knockoffs, which is exactly what we know, from some really good 
reporting from the Wall Street Journal and others, has been happening.
  And they shouldn't be able to, because they are dominant platforms, 
tell people who advertise: Hey, if you want to get your stuff near the 
top of the search engine, then you are going to have to buy a whole 
bunch of things from us.
  That is what reunites us on this bill, the simple concept of 
competition.
  I turn it over to my friend, my neighbor from the State of Iowa, 
Senator Grassley.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, it was a pleasure to work on this 
legislation with Senator Klobuchar, so we joined forces--it happens to 
turn out that there are 10 of our Senate colleagues--in a bipartisan 
way to introduce this legislation that we call the American Innovation 
and Choice Online Act.
  This bill has garnered support from all sides of the political 
spectrum and, of course, is a very commonsense measure, which is meant 
to increase competition on dominant digital platforms.
  Today, there are only a handful of dominant companies that control 
what Americans can buy, what they hear, and what they say online.
  Big Tech has powers over the economy that we haven't seen in 
generations or perhaps ever, and this power grows even larger, taking 
over yet more of our daily lives. With this power, Big Tech is able to 
pick winners and losers on their platforms.
  The goal of the American Innovation and Choice Online Act is to 
ensure that Big Tech can be held accountable when they engage in a 
discriminatory and anticompetitive manner.
  This legislation sets clear rules that businesses on dominant 
platforms must follow. This will help promote competition by targeting 
harmful conduct, while ensuring that innovation and pro-consumer 
conduct is protected.
  I want to be clear. Big Tech platforms offer great products to their 
consumers. This isn't about breaking up companies or penalizing them 
for being successful. This is about ensuring that small businesses have 
a fair and even playing field when utilizing a dominant online 
platform.
  I also want to address many of the falsehoods that have been spread 
by the opponents of this legislation. Nothing in this bill will require 
a company to shut down their marketplace or prevent those companies 
from selling their own branded politics.
  Also, nothing prevents a search company from showing maps or answer 
boxes in their search results. And, also, cellular phones can be sold 
with preinstalled apps. This bill simply sets clear, effective rules to 
protect competition and users doing business on dominant online 
platforms.
  I am a strong believer in the free market. The United States is still 
the greatest country in the world for starting and growing businesses. 
But Big Tech is making it more difficult for small businesses to 
realize success on these dominant platforms. So with this legislation, 
Congress must update our laws to keep up with the growing and evolving 
online ecosystem.
  Big Tech has the power to determine when and what we can buy, see, 
and say online. Big Tech also has the power to destroy companies, small 
and large, by denying them access to consumers and even to the internet 
itself.
  It is time that we ensure there is effective antitrust enforcement so 
the American people can take the power back from these Big Tech giants.
  I want to again thank Senator Klobuchar for her work with me on this 
legislation. I also want to thank all of my colleagues from both sides 
of the aisle who have joined in cosponsoring this legislation.
  In the House of Representatives, we have Congressmen Cicilline and 
Buck, who introduced a similar bill earlier this year, which has 
already been marked up and passed out of the House Judiciary Committee.
  The American Innovation and Choice Online Act is a bipartisan, 
bicameral bill, and I hope that we can move it forward so we end up 
bringing real, positive change to the benefit of all Americans.
  I yield the floor and thank Senator Klobuchar once again.
  Ms. KLOBUCHAR. Mr. President, I thank Senator Grassley for his 
leadership in working with colleagues, and I am glad he mentioned 
Representatives Cicilline and Buck. They are quite the bipartisan duo. 
But, then, we worked with them to make some changes to this legislation 
in order to bring it to our colleagues, and we are very proud of the 
work we have done. We think it is going to make a big, big difference.
  With that, I will turn it over to Senator Hirono.
  The PRESIDING OFFICER. The Senator from Hawaii.


                        Build Back Better Agenda

  Ms. HIRONO. Mr. President, before turning to the bipartisan bill that 
brings a number of us to the floor this afternoon, we have been 
listening to a number of my Republican colleagues throw stones at Build 
Back Better, and I would like to simply state for the record that 
Democrats are committed to lowering costs for families, such as making 
childcare more affordable, and home care for seniors. Democrats are 
committed to lowering taxes for people, such as the child tax credit 
that, by the way, provides much needed financial support for families, 
including for the families of over 200,000 children in Hawaii alone--
all by making the richest people in our country, who got the benefit of 
$1.5 trillion in totally unnecessary tax cuts that the Republicans 
pushed through--by making the richest people in our country pay for 
these much needed programs and actually support American families.
  Meanwhile, what are the Republicans doing? Nothing. Zero. Nothing for 
American families. So I would like to set the record straight as to who 
actually is working hard to help American families, and, believe me, it 
is not the Republicans.


               American Innovation and Choice Online Act

  Mr. President, turning to the bill that we are talking about today, 
today's big tech behemoths like to tout their claimed consumer-focused 
approaches--Amazon, with its ability to deliver seemingly any product 
to your doorstep within 2 days; Google, with its goal of organizing the 
world's information and making it accessible to all; Apple, with its 
mission of bringing the best personal computing products and support to 
the end user; and Facebook, looking to give users the power to build 
communities and bring the world closer together. Each claims that their 
success has been the direct result of their consumer focus, that 
consumers choose their products and services because they are the best 
in class.
  That may have been true at some point, but it is certainly not true 
today. Today, consumers have no real choice. Amazon, Google, Apple, and 
Facebook have become gatekeepers that too often limit, if not outright 
squash, competition online. The result is unprecedented market 
domination that allows these small handful of giant companies to 
influence the choices and actions of literally billions of people every 
day.

[[Page S7710]]

  Think about how many times each of us goes on Google. Multiply that 
by the billions every day. That is the kind of influence these large 
companies have.
  Take Amazon. Just yesterday, the Judiciary Committee heard from a 
small business owner who sells his Crazy Aaron's Thinking Putty on 
Amazon's dominant online marketplace. He watched as Amazon leveraged 
its dominance by using the data it collects from these sales to 
introduce a knockoff of his product. This is consistent with reporting 
from Reuters and others that Amazon recruits small businesses to its 
marketplace and then systematically uses the seller data it collects to 
develop competing products and preferences those products by placing 
them at the top of its search results.
  Google uses similar tactics to preference its own products and 
services. The company controls over 90 percent of the search market--90 
percent. That might not be such a big deal if Google simply fulfilled 
the promise of its cofounder, Larry Page, to ``get you out of Google 
and to the right place as fast as possible,'' but that simply isn't the 
case anymore. About two-thirds of searches on Google result in zero 
clicks; in other words, they start on Google, and they end on Google. 
That means, for example, that more and more diners looking for the best 
restaurants don't get directed to Yelp, the site Google's own search 
criteria identifies as best; rather, they get Google's inferior 
reviews. It means that travelers looking for travel deals on the top 
tourist attractions don't get sent to Expedia or Tripadvisor; they are 
stuck with Google. This is becoming the case for more and more 
searches.
  Apple, likewise, uses its complete control over the iPhone and IOS 
operating system to give its product a leg up. The company has 
introduced a number of products, including Apple Music, AirTags, and 
others, to compete with third-party products--except it is really no 
competition at all because Apple pushes those third parties into its 
payment system and then charges a tax of up to 30 percent. Sure, 
consumers can still use Spotify or Tile, but they all have to pay more 
to do so. In either case, Apple wins.
  These companies have made clear time and again that they are not 
interested in competing on a level playing field; instead, they are 
determined to totally control the playing field. Unless the Federal 
Government steps in, they will continue to do whatever it takes to hold 
on to their market dominance, competition be damned.
  This isn't good for consumers. That is why I cosponsored the American 
Innovation and Choice Online Act. The bill will put an end to these 
abusive and anti-competitive practices. Among other things, it will 
outlaw self-preferencing by the dominant online platforms, prevent 
these platforms from using a competitor's data to compete against them, 
and ban the biasing of search results to benefit the company's own 
products. Unlike the words of the big tech behemoths, the American 
Innovation and Choice Online Act isn't an empty promise; it will 
actually put consumers first by restoring competition in the online 
marketplace.
  Thank you, Mr. President.
  I yield to my colleague Senator Blumenthal.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I thank my colleague from Hawaii for 
that very powerful explanation for why we are here today, and I thank 
Senator Klobuchar for her incredibly important and impactful leadership 
in this area as the chairman of the Subcommittee on Antitrust of the 
Judiciary Committee. She has led informative and profoundly significant 
hearings, and now she has brought to the floor, with many of us as 
cosponsors, along with Senator Grassley, this major piece of 
legislation, the American Innovation and Choice Online Act.
  I will just begin by restating what a number of my colleagues have 
said. These complaints about inflation are really totally misplaced as 
applied to the Build Back Better legislation. In fact, the Build Back 
Better legislation will drive down costs for Americans, make childcare 
affordable and accessible, make preschool free and universal for all 
Americans, and lower the cost of prescription drugs--for the first 
time, a major piece of legislation to lower the cost of prescription 
drugs for Americans and lower costs, as well, for energy and housing. 
The ripple effects of these major steps in reducing costs for everyday 
Americans will be profound and enduring.
  To my colleagues who say on the floor today that this bill is 
changing or complex, yes, it is complex because it is big and impactful 
in lowering costs. And, yes, we have listened to Americans in making 
improvements to the bill, and we will continue to listen to Americans.
  Now, inflation also is tied to the bill that is before us, the 
American Innovation and Choice Online Act. Competition is the lifeblood 
of our economy. Competition is the way that prices are kept competitive 
in benefits to consumers. Competition among businesses is the key.
  Today, in our digital marketplaces, Big Tech in effect controls 
access to consumers.
  Go back to an earlier time in our country's history. After the Civil 
War, we saw railroad tycoons use their monopolies to favor big, repeat 
businesses, with costs to average Americans. They imposed 
discriminatory terms on farmers and other businesses that needed access 
to the rails in order to get their products to the public. The American 
people wanted to do something about it. Congress did. In 1887, Congress 
responded by passing the Interstate Commerce Act, which stopped 
railroad monopolies from offering less favorable terms to smaller 
businesses and farmers.
  The analogy is not completely exact because we are dealing now with 
Big Tech, but the principle is the same. Think of it as the big tech 
companies controlling the means of delivery of goods and services. They 
are the modern-day railroads. In our digital markets, they are dominant 
gatekeepers with total control of essential online platforms. But, even 
worse, they have another role as marketers of their own products on 
those platforms. In other words, big tech companies own the railroads 
of our digital economy, but they also compete with the economies 
relying on those railroads to get their products to consumers.
  Just a couple of weeks ago, in the Commerce Committee, the 
Subcommittee on Consumer Protection, which I chair, a whistleblower 
from Facebook described, to the disgust and dismay of most Americans, 
how Big Tech is pushing disruptive and toxic content on children and 
how they know it and profit from it and, in fact, know from their own 
research and studies what the effects are of online bullying and eating 
disorders and other harms that are conveyed.
  Americans asked me, as they did many of my colleagues: What are you 
going to do about it?
  There are solutions--on privacy, on tools for parents, on other means 
of holding Big Tech accountable--and one of them is to make sure that 
antitrust laws are enforced and approved so that there are competing 
apps that offer safer means of reaching children and other consumers.
  Now, the app market is a place where these harms to consumers and 
competition are starker than anywhere else. The mobile app market has 
grown into a significant part of the digital economy. In 2020 alone, 
U.S. consumers spent nearly $33 billion in mobile app stores, 
downloading 13.4 billion apps.
  We are all dependent on our phones as our gateway to our work, our 
social lives, and education. But two companies, Apple and Google, 
dictate the terms of this important market. They do it exclusively. Yet 
they have those dual roles: first as gatekeepers of the dominant mobile 
operating systems and their app stores; and, second, as participants on 
those app stores.
  And as with the railroad tycoons, Apple and Google abuse that 
gatekeeper status to preference themselves and their business partners, 
driving up their own profits--and consumers' costs--while shutting down 
competition and stifling innovation. Higher costs, less innovation 
means consumers are deprived of the benefits of competition.
  As with the railroads, Congress needs to ensure that new entrants and 
smaller companies can compete on fair terms. Today's digital tycoons 
need new rules of the road that will protect other businesses, like 
laws protected small farmers and small businesses

[[Page S7711]]

against the railroad tycoons. And these rules of the road need to 
address the anti-competitive discrimination that is self-preferencing 
across our app economy.
  I have heard from app developers who have been unable to tell their 
own customers about lower prices, unable to inform their own customers 
about better prices from app developers whose ideas have been co-opted 
by Apple and Google under their ``kill'' or ``copy'' strategy and who 
are knee-capped by the onerous 30-percent rent fees that are charged to 
them. And if app developers don't like the term, there is simply 
nowhere else for them to go.
  So I am indebted to Senator Klobuchar and Senator Blackburn for 
coauthoring another bill with me. In August, I was proud to introduce 
the Open App Markets Act, which would address anti-competitive 
discrimination and self-preferencing.
  I believe that it is critical that we pass that bill, as well as this 
one, to set fair, clear, and enforceable rules to protect competition 
and consumers within the app market.
  Like in the app market, there are central gatekeepers in our digital 
markets with enormous power and deep conflicts of interest. Amazon 
alone, for example, controls as much as 70 percent of all United States 
online marketplace sales. If you are a third-party business: Amazon can 
stop you from contacting your own consumers; Amazon can rank its own 
products ahead of you in search; Amazon can make sure that when a 
consumer asks Alexa to buy a particular product, the consumer receives 
Amazon products; Amazon can use its asymmetric access to data to engage 
in a copy and kill strategy. It can replicate your successful products, 
make the products themselves--often more cheaply, given their massive 
size--and then rank the product at the top of the search bar. In 
effect, they can make it impossible for you to compete on product 
quality or price.
  We have a rare opportunity to improve this abuse of power. We should 
seize that opportunity with bipartisan support and help protect 
American consumers and businesses.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Smith). The Senator from Minnesota.
  Ms. KLOBUCHAR. Madam President, I ask unanimous consent that I be 
permitted to speak up to 7 minutes; Senator Merkley, up to 15 minutes; 
and Senator Durbin, up to 10 minutes prior to the scheduled votes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Madam President, I want to thank my colleague Senator 
Grassley, the Republican lead on this bill; Senator Blumenthal, who has 
done so much work in the area of competition and protection of 
children; and Senator Hirono, who came to the floor today; as well as 
our original cosponsors of this bill, with many more supporters out 
there. And that includes Senator Durbin, the Chair of the Judiciary 
Committee; Senator Lindsey Graham, the former chair; Senator Kennedy; 
Senator Cory Booker; Senator Josh Hawley, Senator Lummis; and Senator 
Warner.
  So, as we noted, as you heard the speakers today, this is a real-
world problem. This isn't something where the tech companies can say 
``just trust us, we've got this.''
  I think anyone who heard the whistleblower a few weeks back in 
Commerce knows that is not true; or heard the parent I heard from last 
week, who told me that, as she tries to protect her kids, as she tries 
to find the right filter or to get them to stop clicking on a link or 
doing something that is going to expose them to bad content and bad 
accounts, she said she feels like it is a faucet that is on and it is 
overflowing in a sink, and she is trying to mop it up, and then the 
water just keeps coming out as she goes from kid to kid to kid.
  I think that pretty much sums it up for how a lot of parents feel 
right now.
  And the other thing that is going on when you have dominant platforms 
and you don't have enough competition and you can't get competitors 
that might have developed the bells and whistles that would have 
protected us from misinformation and from bad information for our 
kids--well, that is what happens when you have dominant platforms.
  And you know what else happens to you when you go to search for 
restaurant reviews, you might not be able to see what you really want 
to see. Instead, you get pushed towards less reputable and less 
informative reviews; or when you go to try to book a flight, you might 
be missing out on a better deal because of certain dominant platforms' 
own booking tool is being pushed to the top of your results. You are 
basically getting ripped off. That is it, plain and simple.
  It also means a dominant platform using nonpublic data--nonpublic 
data, stuff it gathered from you. And, by the way, one example, 
Facebook makes $51 a quarter--a quarter--off of every one of the pages 
that is sitting here in front of us, off of Senator Merkley, who is 
patiently waiting to speak. Fifty-one dollars a quarter is how much 
they make because they have got access to all this information, and 
then the ads get targeted to us. And we don't get any of that money.
  Dominant platforms, using nonpublic data that they gather from small 
businesses can use their platforms--and this is in the retail space; we 
are talking here, like, Amazon--to build knockoff copies of their 
products and then compete against the people who we are paying to 
advertise on their platform.
  This isn't your local grocery store chain selling store brand potato 
chips to compete with a brand-name product. This is Amazon using 
incredibly detailed, nonpublic information that they get from their 
sellers on their platform to create copycat products and box out 
competition from small innovators.
  What does it look like?
  In one case, an employee of Amazon's private label arm accessed a 
detailed sales report with 25 columns of information on a car trunk 
organizer produced by a small Brooklyn company called Fortem. In 
October 2019, Amazon started selling three trunk organizers of its own. 
When shown the collection data Amazon had gathered about his brand 
before launching of their own product, Fortem's cofounder called it a 
big surprise.
  Yeah, I don't think most of us assume that trillion-dollar companies 
put their troves of data to work boxing small businesses out of the 
trunk organizer market. But it happened.
  That is why we are here supporting the American Innovation and Choice 
Online Act.
  Yeah, you have got to update your competition laws when they haven't 
been changed since the internet was invented.
  What does this mean?
  Apple won't be able to stifle competition by blocking other 
companies' services from interoperating with their platform. Amazon 
won't be able to misuse small businesses' data in order to copy their 
products. And Google won't be able to bias their platform's search 
results in favor of other products--their own products.
  The result?
  A fairer playing field for small and medium businesses, more options, 
more flexibility, and more access to markets and fostering 
entrepreneurship for the new kids on the block.
  And, by the way, as Senator Grassley outlined, this bill does not 
outlaw Amazon Prime. Let's go for the lie. It does not do that. That is 
what they have been saying because they want to stop this in its 
tracks; or free shipping; or stop Apple from freeloading useful apps 
onto their iPhones. No, no, no. This is the kind of stuff they have 
been saying for a while.
  And that is why Senator Grassley and I spent the entire summer 
working on this bill, to make sure it did none of that. That is why we 
have such broad support, because this is targeted at anti-competitive 
conduct.
  We are really excited about this bill. The positive opinions it has 
been getting--Boston Globe, Washington Post: ``Finally a promising 
piece of tech antitrust legislation in Congress.''
  I think there are other ones, but that is what they said in there.
  So commonsense rules of the road for major digital platforms, 
allowing them to continue to operate their businesses. We are glad for 
these products. We like these products. We want to keep these companies 
strong. But they don't need to engage in this kind of behavior. That is 
why we are here today, and we are looking very forward to getting this 
bill before the Judiciary Committee and passed through the Senate.

[[Page S7712]]

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                         Issues Facing America

  Mr. MERKLEY. Madam President, not too long ago, we had a vote on 
whether or not to start a debate on the John Lewis Voting Rights Act. 
And the majority said, yes, start the debate.
  Then why aren't we here in that debate?
  Well, the simple answer is we have a process whereby you have to have 
60--a supermajority of the Senate decide to start a debate. In other 
words, there is ability to exercise a veto over whether or not a bill 
is worthy for consideration on this floor, even if it is supported by 
the majority of legislators.
  That effort is really about destroying the ability of this Senate to 
address the big issues facing America.
  What bigger issue is there in a Republic than stopping billionaires 
from buying elections; to stop gerrymandering from destroying equal 
representation; to stop State laws that create prejudicial barriers 
designed to target specific groups to keep them from voting; barriers 
at the ballot box to steal the right to vote? What bigger, more 
fundamental issues are there than that?
  Yet we can't even start a debate. In fact, we spend a lot of time 
debating whether to debate, and that is wasted time on the floor.
  So, truly, that vote we took was symbolic of two things. The first is 
that we are failing to address one of the biggest issues we face in 
this Nation: the integrity of our election system, the corruption of 
our election system.
  And, second, that this Senate has become dysfunctional.
  When Ben Franklin was walking out of the Constitutional Convention, 
he was asked by a woman what kind of government they had created--a 
Monarchy or a Republic? And he is reported to have responded: A 
Republic, if you can keep it.
  We have strived through 234 years to keep that Republic through war, 
through depression, through social unrest, through global pandemic. We 
fought for 234 years to ensure that, as expressed by Lincoln at 
Gettysburg, ``government of the people, by the people, for the people, 
shall not perish from the earth.'' But, as the American philosopher 
John Dewey once said, ``Democracy has to be born anew every 
generation.''
  It is up to each generation to take up the cause and fight to protect 
the foundations of our Republic. We are facing a moment of crisis once 
again when this institution has veered far afield from that time when 
it was declared to be the world's greatest deliberative body. Now it is 
perhaps the world's most dysfunctional legislative body--unwilling and 
unable to even debate, let alone vote, on the biggest issue of our 
time: the defense of our Republic from the corrupting forces of power, 
of billionaires buying elections, of gerrymandering, and certainly of 
barriers at the ballot box.
  So we have a responsibility to take up this cause, to understand its 
source, and to address it, to restore the Senate as a deliberative 
body.
  One of the ways to evaluate our dysfunction is to look at the trend 
and number of amendments considered on the U.S. Senate floor.
  In the 109th session of Congress, 2005 to 2007, there were 314 
amendments. In the 116th, the 2 years just passed, there were 26. So 
314 amendments to 26. And most of the amendments that were allowed of 
those 26 went to just 2 Members, so most Members had no opportunity to 
offer amendments.
  The trends in cloture filings--that is a motion to close debate--give 
us some understanding of what has happened. They were extremely rare in 
the past because the Senate understood it was a simple majority body. 
That is the way the Founders designed it. So very rarely there had to 
be an effort to actually close debate because Members went on forever 
speaking, but it was rare--in 1910 through 1919, just three times; in 
1930 through 1940, four times; and in 1950 to 1960, two times. But 
then, in 1970 forward, things changed. From 1970 to 1975, there were 57 
filings to close debate in 4 years versus 34 from 1910 forward to 1970.
  This explosion--and that was just on policy legislation--led to a 
reform in 1975. The rule for closing debate--the old rule of two-thirds 
of Senators voting was changed to three-fifths of Senators duly chosen 
or sworn. That is 60 votes regardless of how many people were on the 
floor voting.
  That rule change was started, if you will--generated just in those 
years from 1970 to 1974 where you had these 57 cloture motions, which 
is nothing compared to today--nothing--which I will expand on.
  But that 1975 rule change--because instead of saying it was a 
percentage of those present and voting, instead, it was a percentage of 
the Senate, it means that, unwittingly, we transformed the way that you 
delay things in order to exercise leverage.
  We had, under the old rule, a public process where you had to take 
the floor as I am right now and speak at length in order to delay while 
your teammates worked to negotiate an amendment, negotiate a 
compromise, make sure the public had read the bill, make sure the press 
had seen the bill, make sure the Senators had vetted the bill. All 
those are valuable. That delay in order to improve the process is 
valuable.
  Under the old rule, it was a public process. The whole Nation saw it, 
and they could judge whether you were a champion or whether you were a 
disaster, and you got that feedback. Under that old rule, it was not 
just a public process, but it took enormous energy.
  Under the new rule--a no-show. It is not necessary to show up for 
debate and not necessary to show up to vote. It is a no-show, no-effort 
veto that transformed this Senate. Well, the result was that it made it 
so easy to obstruct that people decided to obstruct a lot. That 1975 
cloture rule backfired by creating this no-show, no-effort obstruction.
  Let me give you a sense of this. During the period 1960 through 1970, 
there were some 25 cloture motions to close debate, but in the next 
decade, over 100 in the seventies; in the eighties, over 200; in the 
nineties, over 300; in the 2000s, over 400; and in 2010 through 2020, 
1,029 motions to close debate. That is the disaster we are living in 
right now. Instead of it just being ``Let's slow things down on final 
passage,'' it became ``Let's slow things down on amendments.'' So we 
went from zero cloture motions on amendments from 1920 through 1960 to 
143 just in one 10-year period. It expanded to nominations. We went 
from zero from 1910 through 1960 to 545 during 2010 through 2020. In 
motions to proceed to legislation, we went from zero during the fifties 
to 175 in 2010.
  So this process of a supermajority vote to proceed expanded from 
being rare to being common. It expanded from being on final passage of 
legislation to everything--amendments, motions to proceed--every aspect 
of the work we do here.
  Now, here is the very strange thing: This use of a supermajority 
would absolutely have astounded and appalled our Founders. Our Founders 
were operating under the Confederation Congress at the time they were 
writing the Constitution. The Confederation Congress had a requirement 
for a supermajority, and that supermajority paralyzed the Confederation 
Congress. They were not able to raise an army to put down Shays' 
Rebellion. They were not able to raise money to pay for the 
Revolutionary War veterans.
  So our Founders said: Whatever you do, don't adopt a supermajority.
  We have Hamilton writing:

       If two thirds of the whole number of members had been 
     required . . . the history of every political establishment 
     in which this principle has prevailed, is a history of 
     impotence, perplexity, and disorder.

  Hamilton, in another Federalist paper, wrote:

       If a pertinacious minority can control . . . [the] majority 
     . . . tedious delays; continual negotiation and intrigue; 
     contemptible compromises of the public good [will result].

  Then we have Madison, who said:

       In all cases where justice or the general good might 
     require new laws . . . or active measures . . . the 
     fundamental principle of free government would be reversed 
     [under a supermajority]. It would be no longer the majority 
     that would rule: the power would be transferred to the 
     minority.

  He is pointing out that it stands the very structure of a legislative 
body on its head.
  He went on to note that the result of the supermajority--remember, 
they were experiencing this under the Confederation Congress--is to 
produce the

[[Page S7713]]

following: that the ``minority might take advantage of it to screen 
themselves from equitable sacrifices to the general weal, or, in 
particular emergencies, to extort unreasonable indulgences.''
  Here, are our Founders saying: We experienced the supermajority. 
Don't ever do it.
  They wrote the Constitution so a supermajority was reserved only for 
special circumstances, like evicting Members, like considering a 
treaty, like overruling a Presidential veto.
  So why are we here today doing exactly what the Founders said not to 
do and experiencing exactly the results that they had experienced under 
the Confederation Congress?
  My friends, we have a responsibility to restore the function of this 
body. We need to streamline the nomination process. Think about how a 
nomination works. You vote to go to executive session. You have a 
motion to proceed to a nomination. You vote on proceeding. You hold a 
debate, you hold a vote, and then you proceed it, and then you hold a 
debate, and then you vote, and then you have 2 hours of postdebate, and 
then finally a vote. That is a crazy system to be able to consider a 
nomination. It takes up huge amounts of our time when a simple vote to 
proceed, limited debate, simple vote to proceed to on the floor, simple 
time to consider it, and a vote on whether or not you are going to 
allow the person to fill the position the person has been nominated 
for--this sort of streamlining would save us all a tremendous amount of 
time that could be dedicated to actual debate and actual amendments.
  Then there is this use of a supermajority on motions to proceed to 
legislation, using a blockade to prevent debate, not to facilitate 
debate, as is sometimes argued for the supermajority--that it can slow 
things down, facilitate debate, make sure bills are read, make sure 
there is a chance of negotiation--no, to prevent debate. We shouldn't 
spend time debating whether to debate. Let's just have a set hour to 
consider whether to move to a bill, and then we either move to it or we 
don't.
  How about amendments? I noted the collapse of the ability of Senators 
to amend. Senators in the minority want to do amendments. Senators in 
the majority want to do amendments. We all have ideas and thoughts on 
how to change things and improve things. We want to make our case, but 
we don't get to do it here anymore.
  Don't we have a bipartisan, vested interest in restoring amendments 
to the deliberations of the Senate? You know, I was pondering this 
question because we seem to be locked in a cycle where, given partisan 
differences in the Nation--partisan differences that are increased by 
social media and increased by cable television--we just can't seem to 
come together to be able to make this place work as it is supposed to, 
as it is our responsibility to do. But we have gotten to the point 
where we are utterly--utterly--damaging the United States of America.
  You know, the President of China, President Xi, is saying: Hey, there 
is a world competition between democratic republics and an 
authoritarian world. Look what we have done in China. We went from 
bicycles, and then we had cars and traffic jams, and now we have bullet 
trains, 16,000-mile bullet trains. Look what we are accomplishing. Look 
how many millions are lifted out of poverty. Look how paralyzed the 
United States is.
  Why is the United States paralyzed? Because this Chamber cannot 
discuss a simple debate and vote like every State legislature across 
this country does.
  Colleagues, let's come together. Let's restore debate. Let's restore 
amendments. Let's save and savor and improve the ability of the 
minority to participate in the process, but let's also remember that 
balance of the Senate involves getting to a final decision, a simple 
majority vote as the Founders had intended.
  The PRESIDING OFFICER. The Senator from Illinois.


                      Nomination of Jennifer Sung

  Mr. DURBIN. The Senate will soon be voting on a highly qualified 
nominee to the Ninth Circuit, Jennifer Sung.
  She is a distinguished jurist who will bring an underrepresented 
perspective to the bench. She is a graduate of Oberlin and Yale Law 
School. She clerked for Judge Betty Binns Fletcher on the Ninth 
Circuit. She received a prestigious Skadden Fellowship and worked on 
economic legal issues at the Brennan Center. She spent more than a 
decade representing American workers, often minorities from low-income 
and underserved communities, in labor disputes.
  In 2017, Oregon Governor Kate Brown appointed her to serve on the 
Oregon Employment Relations Board, known as the ERB. It is a three-
member, quasi-judicial agency charged with resolving labor disputes. As 
a member of that board, she sits on a three-member panel that reviews 
evidentiary records, independently evaluates the law, and works in a 
collaborative manner to reach consensus on opinions and issues. If that 
sounds like the same process she would follow in Federal court, it is. 
In her nearly 5 years on that board, she has presided over more than 
200 matters, and only 3 of the 200 have ever been overturned.
  She has exhibited the kinds of qualities we expect of a circuit court 
nominee. She has been criticized for one thing that she did in her 
life, and some of her critics won't forget it. She signed a letter that 
was opposed to Judge Kavanaugh's nomination to the Supreme Court. She 
has testified under oath before our committee that some statements in 
that letter were, in fact, overheated. More importantly, she testified 
that she respects the authority of all members of the Supreme Court and 
recognizes the importance of faithfully following law and precedent.
  The best evidence of how she will serve on the circuit is her 
impressive record in the State of Oregon. When you look at that record, 
you see that she has the support not only of many colleagues but also 
of employees, unions, and employers. Here is what they said: 
``impressive intelligence, diligent preparation, respectful courtroom 
demeanor, and judicial impartiality.'' How about that for a checklist 
for a judgeship?
  When I hear some of my colleagues express outrage over one letter she 
signed in her life, I wonder if they remember some of the nominees that 
they brought before us in the last 4 years. It appears there is a 
double standard.
  Ms. Sung has the strong support of Senators Merkley and Wyden, and 
the American Bar Association rated her as ``well qualified.'' As the 
first Asian-American woman--she will be the first to hold the Oregon 
seat in the Ninth Circuit, bringing diversity to that bench. Her 
professional accomplishments and her commitment to fairness and 
impartiality are profound and impressive.
  I support her, and I hope my colleagues will as well.
  I yield the floor.

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