[Congressional Record (Bound Edition), Volume 155 (2009), Part 16]
[Senate]
[Pages 21196-21199]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 CASS R. SUNSTEIN TO BE ADMINISTRATOR OF THE OFFICE OF INFORMATION AND 
     REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET--Continued


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the cloture motion 
having been presented under rule XXII, the Chair directs the clerk to 
read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Cass R. Sunstein, of Massachusetts, to be Administrator of 
     the Office of Information and Regulatory Affairs, Office of 
     Management and Budget.
         Harry Reid, Joseph I. Lieberman, Mark Udall, Patrick J. 
           Leahy, Daniel K. Akaka, Richard Durbin, Sherrod Brown, 
           Patty Murray, Jeanne Shaheen, John F. Kerry, Robert 
           Menendez, Jack Reed, Mark Begich, Tom Harkin, Sheldon 
           Whitehouse, Ron Wyden, Kirsten E. Gillibrand.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Cass R. Sunstein, of Massachusetts, to be Administrator 
of the Office of Information and Regulatory Affairs, Office of 
Management and Budget, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The yeas and nays resulted--yeas 63, nays 35, as follows:

                      [Rollcall Vote No. 273 Ex.]

                                YEAS--63

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Gregg
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Whitehouse
     Wyden

[[Page 21197]]



                                NAYS--35

     Alexander
     Barrasso
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Lincoln
     McCain
     McConnell
     Murkowski
     Pryor
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Webb
     Wicker
  The PRESIDING OFFICER. On this vote, the yeas are 63, the nays are 
35. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.


                         Letter of Resignation

  The Chair lays before the Senate the letter of resignation of Senator 
Mel Martinez of Florida.
  Without objection, the letter is deemed read and spread upon the 
Journal.
  The letter follows.

                                                  U.S. Senate,

                                Washington, DC, September 2, 2009.
     Hon. Joseph R. Biden, Jr.,
     President of the Senate,
     Washington, DC.
       Dear Mr. President: I hereby give notice that I will retire 
     from the Office of United States Senator for the State of 
     Florida. I, therefore, tender my resignation effective at 
     5:00 p.m. on September 9, 2009.
           Sincerely,
                                                     Mel Martinez.

  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. KAUFMAN. Mr. President, there is not a quorum call, is there?
  The PRESIDING OFFICER. There is not.


                      Tribute To Christine Spicer

  Mr. KAUFMAN. Mr. President, I rise once again to speak about one of 
our Nation's great Federal employees. All of us here, along with our 
colleagues in the House, have returned from a busy work period. I know 
we, like all Americans, appreciate the extra day off we had on Monday 
to rest and recharge, to spend time with family, and to enjoy a 
barbecue. It is important, though, not to lose sight of what Labor Day 
represents.
  America was founded on the belief that if you work hard, you can 
achieve your dream. When American workers set themselves to a task, no 
challenge is too great.
  Since the 19th century, Labor Day has served as an opportunity to 
appreciate those who have made our economy the strongest in the world. 
Even with the challenges we face on Wall Street and on Main Street, I 
remain confident in our economy precisely because of our great workers.
  American workers built the canals and railroads that fueled the 
westward expansion of our early years. They labored in those first 
industrial factories, weaving textiles, smelting iron, and 
manufacturing new products. Our workers electrified America's cities 
and made possible our soaring skylines.
  Whenever they were called upon to serve, they laid down their tools 
and took up arms to defend liberty at home and overseas.
  Today, our workers produce microchips, complex machine parts, and 
quality products sold in markets worldwide. I know that American 
workers will continue to excel as we transition to a green economy.
  The history of labor in our country can be told through the stories 
of Americans who have worked hard because they dream of providing a 
decent life for themselves and their families.
  The great labor leader Samuel Gompers, when asked what motivated 
American workers to organize for better pay and conditions, said:

       We want more schoolhouses and less jails; more books and 
     less arsenals; more learning and less vice; . . . in fact, 
     more of the opportunities to cultivate our better natures.

  It took American workers many decades to win fair wages and safe 
working conditions. Today, the dedicated employees of the Department of 
Labor continue to ensure that American workers are safe, treated 
fairly, and have access to employment opportunities. This also includes 
a commitment to protecting workers' hard-won benefits.
  The men and women of the Department's Plan Benefits Security Division 
engage in legal proceedings to make certain that employees' rights 
under retirement income security legislation are upheld. It is a busy 
office, and its attorneys and staff work on behalf of our Nation's 
labor force and retirees.
  On July 4, 2006, Christine Spicer, who had worked as a secretary in 
the division for 25 years, suffered a debilitating stroke. It left her 
hearing and sight impaired and unable to walk. Unable to perform the 
office tasks she had done for a quarter of a century, Christine could 
have chosen to retire on disability.
  However, she was determined to return to work and keep serving the 
public. Christine engaged in a difficult course of physical, speech, 
and occupational therapy. She returned to work in 2007, and now serves 
as the lead secretary for the division chief--a job entailing great 
responsibility.
  Despite lingering problems with speech and difficulty walking, 
Christine oversees the division's payroll system, personnel paperwork, 
and a number of special assignments in addition to her secretarial 
role. She has been cited by her colleagues as disciplined and cheerful, 
and she is truly one of the Labor Department's unsung heroes.
  The employees of the Department of Labor continually serve American 
workers by safeguarding their right to a living wage and providing what 
our dear friend, the late Senator Ted Kennedy, called ``hope that the 
price of their employment'' is not ``an unsafe workplace and a death at 
an earlier age.''
  I call on my colleagues and on all Americans to join me in honoring 
Christine Spicer and all of the outstanding public servants at our 
Department of Labor.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, I ask to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I rise today to express my strong support 
for the nomination of Cass Sunstein from Chicago, IL, to be 
Administrator of the Office of Management and Budget, Office of 
Information and Regulatory Affairs. It is a long title. But this office 
is critically important. It is the gateway for all the major Federal 
regulatory proposals that protect public health and the environment.
  The Administrator needs a demonstrated record of impartiality and 
openness. President Obama has made it clear that objective science will 
guide his administration in their Federal rules and regulations.
  Cass Sunstein is one of the Nation's most respected legal scholars 
who has shown a commitment to objective, evidence-based regulation. 
Cass Sunstein is a friend, he is a well-respected legal scholar, and he 
has taken insightful approaches to analyzing public policy. He has 
often proposed insightful ways to protect the public welfare, the 
environment, and worker safety.
  Until he was nominated by President Obama, he served as the Felix 
Frankfurter professor of law at Harvard University, where his research 
spanned administrative and constitutional law, behavioral economics, 
environmental law, and labor law. I know him best from the 27 years he 
served as a member of the faculty of the University of Chicago Law 
School, where he taught one of my sitting colleagues, Senator Amy 
Klobuchar, the senior Senator from Minnesota, and was a teaching 
colleague of the President of the United States.
  He has also served as attorney-adviser in the Office of Legal Counsel 
to the U.S. Department of Justice, law clerked for Justice Benjamin 
Kaplan of the Supreme Court of Massachusetts, and clerked for Supreme 
Court Justice Thurgood Marshall. His academic credentials are the best.
  His nomination has been endorsed by many groups and many Nobel Prize 
winners and many former OIRA Administrators. His professional record

[[Page 21198]]

indicates he would use his knowledge and experience to develop and 
implement smart, objective Federal policies and regulations.
  I am going to support him enthusiastically. I believe he will be 
honest in dealing with this critical office, an office which is often 
hidden from the public sight because it deals in the world of rules and 
regulations but one which can have a great impact on the future of this 
Nation. President Obama has chosen well. I hope the Senate will endorse 
his choice.


                              The Economy

  Mr. President, all of us understand we are in the midst of a 
recession. It has been known as the Great Recession, not as bad as the 
Great Depression, thank the Lord, but certainly not your average run-
of-the-mill economic downturn.
  Last week, the Labor Department reported that the unemployment rate 
has reached 9.7 percent, the highest we have had in 25 years. I 
remember the last time it was even higher because that was the year 
1982 when I was elected to Congress and the economy of my State was in 
terrible shape. The unemployment rate in Decatur, IL, where I was a 
candidate for Congress, was over 20 percent, and many communities had 
the same experience. I certainly hope this situation does not 
deteriorate to that level. There is evidence it is starting to turn for 
the better. But 216,000 Americans lost jobs last month, which brings 
the total number of jobs lost since this recession started in December 
of 2007 to 7 million Americans. Economists do not expect the job 
situation to stabilize until next year. So this Labor Day was not a 
great day of celebration for working Americans worried about their jobs 
and worried about their income.
  There is some hope that the economy is starting to turn. The 
administration expects to report this week that the stimulus bill, 
which we enacted earlier this year, will have created or saved 750,000 
jobs in just a few months. That is one reason the number of jobs lost 
in July was not as bad as other months. Mr. President, $300 billion of 
the stimulus money has been obligated or distributed through tax relief 
directly to working families. Those who come to the floor opposed to 
the President's stimulus bill are opposing his proposal which gave tax 
relief to working families. And $160 billion of that has already been 
spent, and more to follow, giving those families a fighting chance to 
deal with the expenses of daily life.
  In addition, the success of the recent Cash for Clunkers Program is 
expected to create or save 42,000 jobs over the second half of this 
year. We know this in Illinois because last week while I was home, 
while some of the political observers were criticizing cash for 
clunkers, the Chrysler plant in Belvidere, IL, announced it was going 
to bring back 850 employees and put them to work because the stock and 
inventory of Chrysler products had been depleted by this program. So 
don't tell me cash for clunkers did not breathe some life back into the 
automobile industry. There are 850 workers in Belvidere, IL, who could 
tell you just the opposite.
  Unfortunately, many sparks of economic regeneration are still being 
overwhelmed by the mutating disease at the center of our economic ills. 
If you remember, this recession really started in the housing market, 
and unfortunately it continues to grow there.
  As I pointed out many times in this Chamber, the economic crisis that 
began in the housing market is not going to get better and is not going 
to change until the housing markets in America stabilize. Families who 
are afraid they are going to lose their homes to foreclosure will not 
buy things they need. When families do not buy things, companies do not 
make things and people are laid off. It is just that basic. Since 12 
million people could lose their homes to foreclosure during this 
recession, there are a lot of people who could end up losing jobs, stop 
purchasing, creating even a deeper recession.
  Here is the tough part of where we are right now. It is now because 
people are losing their jobs that they are losing their homes. It is a 
vicious cycle. According to the Mortgage Bankers Association, 6 million 
loans were either past due or in foreclosure in the second quarter, the 
highest level ever recorded in the United States of America. Nearly one 
in eight borrowers is behind or in foreclosure, and well over half of 
these households in trouble are solid, sound borrowers. In Illinois, 14 
percent--one out of seven mortgages is in trouble since the second 
quarter of this year. And the scary part: we have not peaked yet when 
it comes to the foreclosure crisis. The reason? Millions of families 
are now underwater, meaning they owe more to the bank than their home's 
value.
  The best predictor of whether a house could fall into foreclosure is 
whether the homeowner has positive equity. Homeowners with a financial 
stake in keeping a home are far more likely to save it. The bad news, 
according to Deutsche Bank, is 14 million homeowners--over one-fourth 
of home borrowers in America--have negative equity; that is, over one-
fourth of all home borrowers are underwater with negative equity, and 
25 million homeowners, half of them, will be underwater when the prices 
stabilize in the first quarter of 2011. Home equity fell $5.9 trillion 
between 2005 and the end of 2008, likely to fall even further in 2009. 
These families are at serious risk of foreclosure. This is not a crisis 
that we pass through. Sadly, it is a crisis we are living through and 
entering into a new phase.
  One more problem: A new wave of mortgages is coming up later this 
year. These mortgages are facing a reset. They are called option arms. 
They are soon going to dwarf subprime loans in size. These loans 
allowed the borrowers to pick what they wanted to pay each month, even 
if they wanted to pay less than the principal amount owed. Forget the 
interest. Under these terms you didn't even have to keep up with the 
principal payments. Of course, you have to catch up when the initial 
reset hits.
  Fitch Ratings estimates $134 billion in option arms will reset in the 
next 2 years, even as unemployment remains high. What began as a risky 
subprime mortgage crisis has now morphed into a solid prime mortgage 
and crazy option-arm crisis. What began as an underwriting problem is 
now an income problem. What began as a rate reset challenge is now also 
a negative equity nightmare.
  If we want to turn this economy around, we must attack this problem 
with everything we have. Imagine this financial sector which dreamed up 
these ways of financing homes--luring people into homes that were way 
beyond them, now facing a recession and foreclosures on those same 
loans and mortgages--has now refused to cooperate in dealing with this 
issue. They have washed their hands of it. They have made their money 
and now they want to walk away from it.
  Sadly, what we are doing now in this country isn't enough. Two years 
after the cruelly named Hope Now Alliance was launched by then-
Secretary of the Treasury and the big banks, the response to this 
crisis is awful. As Congress has looked on with a hands-off attitude, 
millions of our constituents have been thrown out on the street by the 
same banks that drove us into this economic ditch. I give credit to the 
Obama administration for creating a targeted program called the Home 
Affordable Modification Program which, if implemented aggressively, 
could save at least some of the families at risk. But even this modest 
effort has been stymied by the absolute failure of the banks to 
aggressively implement it.
  Under this program the banks get paid--bribed really--with several 
thousand dollars for every mortgage they modify to keep families in 
their homes. Let me tell you what the data released by the Treasury 
Department this week tells us about this program which gave money to 
banks to renegotiate mortgages. Only 125,000 modifications under this 
program were started last month by the mortgage servicers, even though 
nearly 3 million homeowners were eligible for these modifications.
  Let me do the math--125,000 out of 3 million. If I understand that 
correctly, we are dealing roughly with \1/24\th of

[[Page 21199]]

those who were eligible for modification who actually got help. That is 
about 4 percent.
  Bank of America has started modifications with just 7 percent of 
their homeowners that were eligible; Wells Fargo, only 11 percent; 
American Home Mortgage Servicing has nearly 100,000 troubled borrowers 
eligible for mortgage modification offers yet less than 1 percent of 
these borrowers have even received an offer.
  The situation is deplorable. If the banks don't start offering money 
and modifications to these families, perhaps Congress needs to make the 
banks some offers they can't refuse. We have tried this voluntary 
approach for too long and it has failed. The banks are not voluntarily 
going to step up to this responsibility of negotiating and 
renegotiating a mortgage so people can stay in their homes. Maybe we 
should fine banks for not following the administration's plan rules. 
Maybe we should provide matching funds for States and municipalities 
that decide to require mandatory face-to-face arbitration between a 
bank and a homeowner before a bank can ask for a foreclosure. Maybe we 
should ensure families have the right to rent their home after a bank 
takes it over until the home can be sold. And maybe we should look 
again to changing the Bankruptcy Code to allow judges to help families 
save their primary loans.
  This is called cram-down by its critics, but it is a basic change in 
bankruptcy law, which I have brought to the floor of the Senate twice 
and lost. I lost because the banks said: Don't worry about it, we are 
going to take care of this. They are not. The situation is getting 
worse by the day.
  Last week I was in Chicago and went to an area known as Marquette 
Park on the south side of the city. I have been visiting that 
neighborhood for years. It has changed a lot. Originally it was an area 
where many Lithuanian Americans settled. My mother was an immigrant 
from Lithuania, and I used to take her there when she was alive. We 
would go to the bakeries and restaurants, and it was a wonderful 
neighborhood. It has changed many times. It is now primarily a Black 
and Hispanic neighborhood. As you visit some of the folks who have 
lived in that neighborhood for 10, 15, 20 years now, you see a lot of 
proud homeowners.
  I met a family--a man who said he had been in his home 19 years. 
Obviously, he was retired. His wife was there. They had a well kept, 
neat yard. I talked to him about his street because right across the 
street from him was an eyesore that no one would want to wake up to 
every morning. It was a brand-new home built and abandoned about 2 
years ago. It had been boarded up and vandalized. They had ripped out 
all the copper plumbing and anything they could take out of it. It was 
a home that, sadly, had become a haven for homeless people and 
vagrants, drug activity, and gangs. Welcome to my neighborhood.
  I thought about this poor man, who had devoted his whole life to his 
little home that he loved, and that he and his wife were keeping so 
neat, now had to look across the street to that mess every morning for 
2 straight years. It wasn't the only home on the block. Three doors 
down there was another one, all boarded up and falling apart; a few 
doors down the other direction, exactly the same thing.
  I went through this area with a community group called SWOP--
Southwest Organizing Project. They work with a lot of churches and 
individuals trying to keep people in their homes. I asked: What is the 
problem? Well, they said, we have some major banks that are holding 
these mortgages in foreclosure and won't lift a finger.
  Deutsch Bank, you hear about Deutsch Bank. Don't they sponsor tennis 
or golf or something? I can't keep up with their image building. But I 
can tell you they are not building their image in this neighborhood in 
Chicago. They are nowhere to be found. They are not even talking to 
these people about their homes.
  U.S. Bank out of Minnesota, another situation, similar situation. We 
don't have buy-in by these banks to help these families. They would 
much rather let these homes go into foreclosure--bank ownership, as 
they call it--and sit there rotting, destroying these good 
neighborhoods in the city of Chicago, bringing down the value of the 
homes around them, creating crime havens for those who use these 
abandoned homes. They are nowhere to be found.
  What is the answer, Mr. President? The answer is we have asked these 
banks and many others to volunteer to solve the problem. Guess what. 
There aren't enough hands going up, not enough banks volunteering. A 
few of them are starting to try, and I want to give credit to Bank of 
America, which is working with SWOP and others to try to renegotiate 
mortgages, but it is still a halfhearted effort. They could do a lot 
more.
  I could go through the long list of banks, including banks that I 
have worked with in the past and thought pretty highly of. They aren't 
getting involved. There is no reason for them to because our government 
and our Congress tell them they do not have to, and they do not. Well, 
that has to change.
  All told, I hope this economy recovers quickly and that Americans can 
get back to work. I don't think it is going to happen until the housing 
market stabilizes. If the banks will not help us get that done on their 
own, it is time to consider something radical--a change in the law. 
Where would be a good place to start with the change in the law? How 
about the Senate? How about the Senate making the Bankruptcy Code so 
that a judge can say to that bank owning that home: Incidentally, the 
last stop in bankruptcy is my courtroom. If you don't sit down and 
negotiate with that homeowner, who still has a job and still can make a 
payment, this court is going to impose new terms in terms of principal 
and interest.
  Does that sound like a radical idea? It is not radical if you are 
talking about a second home because the bankruptcy court can already do 
that. It is not radical if you are talking about a vacation home 
because a bankruptcy court can already do it. But under our law they 
cannot touch that primary residence. It is a bad idea, and as a result 
the banks and their lobbyists have prevailed twice on the floor of the 
Senate. They rolled over this effort to reform, and they sit there and 
watch America's neighborhoods, America's communities, America's towns 
and cities deteriorating before our eyes.
  Well, the lesson is clear for the Obama administration, for Secretary 
Geithner, and others. Waiting for these banks to act voluntarily, to 
show good faith in dealing with our foreclosure crisis is not paying 
off. It is time for the Senate to step forward, show its own leadership 
when it comes to dealing with this national housing crisis.

                          ____________________