[Congressional Record (Bound Edition), Volume 156 (2010), Part 1]
[Senate]
[Pages 915-938]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF M. PATRICIA SMITH TO BE SOLICITOR FOR THE DEPARTMENT OF 
                             LABOR--Resumed

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The legislative clerk read the nomination of M. Patricia Smith, of 
New York, to be Solicitor for the Department of Labor.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. HARKIN. Mr. President, at 5:30 today, under a previous order, the 
Senate will be voting on cloture on the nomination of Patricia Smith to 
be Solicitor for the Department of Labor. I will be addressing the 
Senate about this and about the key role the Solicitor plays, about the 
qualifications of Patricia Smith to assume this position, and sort of 
to bring people along as to why we are here and why it has taken so 
long.
  This nomination has been before us since last April and, quite 
frankly, this should have been disposed of many months ago. But, 
nonetheless, we are in a situation where the Republican side has 
objected, and so we have had to file cloture, which was done on 
Thursday. It ripens at 5:30 p.m. today. We will have a vote at 5:30, 
and then we will be in a postcloture position on the nomination of 
Patricia Smith to be the Solicitor for the Department of Labor.
  On Friday, the Commerce Department announced that the Nation's GDP 
surged at a 5.7-percent annual rate in the fourth quarter of 2009. 
Well, that is good news, and it is yet more evidence that the Recovery 
Act is having the positive impact we expected when we passed it last 
year. But in my book, the most important economic statistic is the 
unemployment rate, which remains stuck at about 10 percent. I wish to 
be clear, a jobless recovery, as people are calling it, is a 
contradiction in terms. There is no meaningful recovery until that 
unemployment rate is coming down and people on Main Street are feeling 
the benefits of a stronger economy.
  Today, more than 6 million workers have been looking for a job for 
more than 6 months and cannot find one. Hard-working people have seen 
their hours cut back, their benefits reduced, and millions more are 
simply not looking because they have given up, and they are not even 
counted in the unemployment figures. Family budgets are stretched to 
the breaking point. Workers are desperate to get a job and keep a job 
and pay for the basic necessities of their families.
  The Obama administration has implemented an aggressive agenda to 
restore economic security for working

[[Page 916]]

families and to get our economy back on track. We will be offering jobs 
bills on the Senate floor in the near future. But a key part of 
restoring economic security in this country is reaffirming our 
commitment to strong labor standards and a revitalized, strong 
Department of Labor.
  In these tough times, when so many families are suffering, it is sad 
to think some unscrupulous employers might choose to pad their profits 
by violating our labor laws, cutting corners on safety, firing workers 
illegally, refusing to pay workers the wages they have earned. But the 
harsh reality is, these practices are far too common now in our 
economy.
  A recent survey of workers in very low-wage occupations found, in a 
single week, 26 percent of low-wage workers were paid less than the 
minimum wage--one out of every four paid less than the legally required 
minimum wage--and 76 percent worked overtime without receiving their 
proper overtime pay; 76 percent--three out of every four people--who 
did overtime did it without receiving proper overtime pay.
  These acts of theft--and that is what I call it; let's be clear about 
it, it is theft from America's most vulnerable workers--represent a 
major loss of income for families struggling to make ends meet.
  We like to think these things do not happen in the United States. We 
like to think sweatshops do not exist. We like to think employers do 
not cut corners in ways that endanger the life and limb of employees. 
But these things do exist, sadly, and they are even more common when 
times are tough and when enforcement is lax or nonexistent.
  That is not fair to our workers, it is not fair to their families, 
and--this is very important--it is not fair to the overwhelming number 
of honest and reputable businesses that play by the rules and treat 
their workers fairly.
  That is why--now more than ever--we need a strong Department of Labor 
to stand for America's workers. We need leaders at the Department who 
understand the challenges workers are facing and are prepared to tackle 
these challenges aggressively.
  Secretary Solis, our Secretary of Labor, has put an excellent team 
together at the Department, and they are working hard to reinvigorate 
that agency after years of neglect. But they are still missing a vital 
player on their team. For more than 9 months, Republicans have been 
blocking the confirmation of a key Department official, the Solicitor 
of Labor.
  The Solicitor of Labor has the critical responsibility of enforcing 
almost 200 Federal laws that affect American workers every day, such as 
safety and health, wages and work hours, equal employment opportunity, 
veterans' protections and retirement and health benefits. Again, I have 
a series of charts to show what the Solicitor does, how important this 
position is.
  For example, the Solicitor of Labor was critical in the investigation 
of a major explosion at BP Products' Texas City refinery that killed 15 
workers and seriously injured over 170 others. The Solicitor secured a 
settlement that included over $21 million in penalties.
  The Solicitor of Labor also helps to protect workers' paychecks. The 
Solicitor of Labor launched an investigation of Walmart that resulted 
in the payment of $41 million in back wages to workers who had been 
underpaid. Again, these wages would not have been paid had it not been 
for the Solicitor of Labor taking these actions because those workers 
do not have the wherewithal to bring these cases themselves, so it had 
to be done by the Solicitor of Labor. Mr. President, 41 million in back 
wages would have been underpaid at Walmart.
  The Solicitor of Labor defends workers' retirement security. The 
Solicitor of Labor launched an active investigation into Enron 
Corporation's--remember Enron--Enron Corporation's management of 
workers' pensions that resulted in the recovery of more than $220.8 
million for workers' pensions plans. That is $220.8 million that would 
not have gone to these workers' pensions had it not been for the 
Solicitor of Labor.
  Because workers cannot bring private lawsuits under many of these 
laws, the Solicitor is the only official who can defend their rights.
  The Solicitor is also a vital member of the Secretary's management 
and leadership team. The Solicitor provides legal advice and guidance 
on virtually every policy, legislative, regulatory, and enforcement 
initiative at the Department of Labor. The Department simply cannot 
perform its mission effectively without a strong Solicitor in place.
  The President has nominated Patricia Smith of New York to perform 
these critical responsibilities, and there is no question she is 
superbly qualified for this job. Patricia Smith--Commissioner Smith, I 
should say--is an accomplished attorney with a detailed knowledge of 
our labor laws and a deep commitment to improving the lives of working 
families. At present, she is commissioner of the New York Department of 
Labor. Since becoming commissioner of the New York Department of Labor, 
she has played a prominent role in helping New York's working families 
weather the current economic crisis.
  She has implemented creative, new work-sharing programs to help 
employers avoid layoffs. She has revamped the State's unemployment 
insurance system to help workers access benefits more easily. She has 
created a new program to help low-income workers train for careers in 
high-demand fields, such as green technology, construction, and health 
care. Through these initiatives, Commissioner Smith has demonstrated 
impressive leadership skills. She has built positive working 
relationships with legislators, worker advocates, and the business 
community.
  In a letter urging her confirmation, the Business Council of New York 
State--the Business Council of New York--had this to say:

       Ms. Smith has shown a clear ability to balance her duty as 
     a public official to enforce the law and her obligation as a 
     public official to ensure that the law provides for 
     reasonable application and reasonable solutions.
       It is those critical skills--listening, interpreting, and 
     balancing--that make Ms. Smith an ideal candidate to serve as 
     the United States Department of Labor's Solicitor. . . .

  That is the Business Council of New York State.
  Another letter from the business community, this one from the 
Manufacturers Association of Central New York:

       The Department of Labor under the leadership of 
     Commissioner Smith--

  Now they are talking about the Department of Labor in the State of 
New York--

     has been fully supportive in our mission to enhance and 
     improve our sector's workforce. Commissioner Smith and her 
     team have been informative, helpful, and involved every step 
     of the way. . . . It is Commissioner Smith's dedication, 
     leadership, and innovative thinking that make her an 
     exceptional candidate for Solicitor for the United States 
     Department of Labor.

  That is the Manufacturers Association of Central New York.
  Mr. President, I ask unanimous consent that both these full letters, 
along with five other letters of support from business organizations, 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The Business Council


                                      of New York State, Inc.,

                                      Albany, NY, August 14, 2009.
     Re Nomination of M. Patricia Smith, US Department of Labor 
         Solicitor General.

     Hon. Michael B. Enzi,
     U.S. Senate, Senate Russell Office Building, Washington, DC.
       Dear Senator Enzi: On behalf of the 3,000 members of The 
     Business Council of New York State, I write in support of 
     President Obama's nomination of Ms. Patricia Smith for the 
     position of Solicitor General at the United States Department 
     of Labor. As the president and CEO of a statewide business 
     trade organization, I believe Ms. Smith is superbly qualified 
     to assume the responsibilities of Solicitor General and urge 
     the Committee's favorable disposition of her nomination.
       As the Committee has the broadest access to Ms. Smith's 
     resume and credentials, I write to add a perspective which 
     often does not translate well from written documents

[[Page 917]]

     or background checks. Ms. Smith's long tenure as an Assistant 
     Attorney General of New York leading its Labor Bureau showed 
     her to be thorough, fair and judicious in the use of the 
     tools at her disposal to ensure compliance with New York's 
     Labor Law. She carefully balanced the disparate issues before 
     her and sought resolution as opposed to prosecution, when 
     that result would serve the best interests of New York's 
     citizens. And where blatant fraud, abuse and disregard for 
     New York's Labor Law was evident, she did not rush for 
     headlines and photo opportunities, but rather worked closely 
     with appropriate officials to build a legal case which would 
     withstand scrutiny and higher level appeals.
       In her tenure as New York's Commissioner of Labor, Ms. 
     Smith continued her vigilance and diligence on behalf of New 
     York's citizens, again balancing the many different roles the 
     Department of Labor serves in New York State. To those not 
     familiar with the responsibilities of that Department, they 
     may not understand the challenge it can be to manage an 
     agency which issues unemployment benefits; must be vigilant 
     about fraud in that $2.5 billion unemployment system; engages 
     with businesses and individuals to help put people back to 
     work; manages a workforce development system designed to 
     improve skills of our workforce; and, enforces rigorous 
     minimum wage, safety and health, and various labor standards' 
     statutes. At times, a Commissioner is asked to decide between 
     what may seem to be conflicting goals and objectives; Ms. 
     Smith always demonstrated to the business community a 
     willingness to listen, to reflect and to respond.
       To be sure, our organization did not always agree with the 
     policy direction taken under Ms. Smith's tenure. But there 
     are well-established processes through which we can pursue 
     changes to policies with which we disagree. What is important 
     to note is that under Ms. Smith's leadership, she made an 
     extra effort to communicate directly with the business 
     community, to elicit feedback, to provide us with a heads-up, 
     and to balance our comments as she framed policy and practice 
     within her Department. Her outreach to us and communication 
     with us was open, honest, candid and frequent. While some may 
     view her tenure as one of strict enforcement, with little 
     regard to practical day-to-day business realities, our 
     membership would disagree, as we believe she offered an 
     opportunity to the business community to be a part of the 
     solution, rather than just reacting to the problems.
       New York's Labor Laws date back a century and reflect the 
     seriousness with which policymakers then and now feel the law 
     should protect workers and be responsive to their needs. That 
     is the statutory and regulatory environment within which New 
     York employers must operate. Where employers engage in fraud 
     and abuse of employees, enforcement of the law is a duty, not 
     an option. Ms. Smith has shown a clear ability to balance her 
     duty as a public official to enforce the law and her 
     obligation as a public official to ensure that the law 
     provides for reasonable application and reasonable solutions.
       It is those critical skills--listening, interpreting, and 
     balancing--that make Ms. Smith an ideal candidate to serve as 
     the United States Department of Labor's Solicitor General and 
     I would ask that the Committee move on her nomination upon 
     its return in September.
       Should any Committee members benefit from further 
     discussion on her nomination to which I can contribute, 
     please feel free to contact me at your convenience.
           Sincerely,
                                                    Kenneth Adams,
     President and CEO.
                                  ____

                                         Manufacturers Association


                                          of Central New York,

                           Syracuse, New York, September 11, 2009.
     Re nomination of M. Patricia Smith as Solicitor General, 
         United States Department of Labor.

     Hon. Jeff Merkley,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Mr. Merkley: On behalf of MACNY, the Manufacturers 
     Association and its members, I fully give my support to the 
     nomination of Patricia Smith as Solicitor General of the 
     United States Department of Labor.
       MACNY is a trade association representing over 330 member 
     companies with over 55,000 employees within a 19-county 
     region, and we serve and advocate for the growth and 
     development of the manufacturing sector of New York State. 
     Founded in 1913, we pride ourselves on not only being the 
     largest association of manufacturers in New York, but also 
     one of the oldest and most widely recognized associations in 
     the nation.
       For Central and Upstate New York to retain its 
     manufacturing base, manufacturers must be able to compete in 
     the global economy. Manufacturing strength is contingent upon 
     the quality of the region's workforce. Manufacturers often 
     cite the quality of the workforce as a key reason for 
     business expansion and the lack of it as a reason for closing 
     and/or relocating. Expanding the trained and educated 
     manufacturing workforce is therefore crucial to the Upstate 
     New York economy. As such, one of MACNY's core mission areas 
     remains workforce development. Training programs help 
     manufacturers educate workers and remain in Central and 
     Upstate New York.
       The Department of Labor under the leadership of 
     Commissioner Smith has been fully supportive in our mission 
     to enhance and improve our sector's workforce. Commissioner 
     Smith and her team have been informative, helpful, and 
     involved every step of the way, ensuring our membership has 
     the tools, education and skills they need in order to 
     succeed.
       One such example is the partnership between MACNY and DOL 
     on the successful Shared Work Program. Since its inception, 
     MACNY has lent its support and continued to promote this 
     beneficial DOL program. Through this unique and successful 
     partnership, over 34 member companies have utilized and 
     benefited from the Shared Work program, including Revere 
     Copper Products, Endicott Interconnect and Manth Brownell, 
     Inc.
       In another similar partnership, in May of 2009, MACNY 
     hosted a Workforce Development partnership meeting for the 
     planning of reemployment services on behalf Magna Power 
     train, a longtime MACNY member and major market manufacturing 
     employer located in Dewitt, New York. The meeting, in 
     partnership with the Department of Labor, focused on the 
     company's employees and the anticipated downsizings and 
     possible future plant closure. Since economic and labor pool 
     questions are regular inquiries from our membership, MACNY 
     holds a vested interest in the related progress. As a result 
     of this meeting, and with thanks to the expertise and hard 
     work of the Department of Labor, MACNY remains readily 
     available to promote an applicant pool and highly qualified 
     resumes to their membership.
       Commissioner Smith has also spent her tenure advocating on 
     the federal level for funding in workforce development 
     initiatives and continued Federal workforce training dollars, 
     a cause that has greatly benefited MACNY's membership. 
     Meeting with editorial boards and local officials, New York's 
     Congressional delegation, as well as key Congressional 
     committee members and staff, Commissioner Smith was able to 
     draw attention to and oppose the 50% cut in New York's 
     Workforce Investment Act (WIA) dollars since 2000. In recent 
     years, MACNY has been grateful in securing federal funding 
     for workforce and training initiatives, allowing members to 
     receive discounted advanced skills training as a way to keep 
     their costs down and advance their workforce. Without 
     Commissioner Smith's tireless efforts in this capacity, this 
     critical program would not be possible.
       As earlier stated, for over 95 years MACNY has been 
     tirelessly working to ensure we have the most up-to-date 
     services and information needed to allow our manufacturing 
     community to grow and prosper. In examples as cited above, 
     plus many more, our collaborative partnership with the 
     Department of Labor allows us to learn and educate our 
     membership on how the state's workforce development programs 
     can best help them. The continued leadership of Commissioner 
     Pat Smith in such instances has been exemplary, and our 
     collective membership is grateful for both her and the 
     Department of Labor's years of dedication to the state's 
     manufacturing community.
       It is Commissioner Smith's dedication, leadership, and 
     innovative thinking that make her an exceptional candidate 
     for Solicitor for the United States Department of Labor, and 
     on behalf of MACNY, I fully support her nomination for this 
     position.
       If you have any other questions in this capacity, please do 
     not hesitate to contact me.
           Sincerely,
                                                     Randy Wolken,
      President, MACNY.
                                  ____



                                Partnership for New York City,

                                  New York, NY, September 1, 2009.
     Hon. Michael B. Enzi,
     U.S. Senate, Senate Russell Office Building, Washington, DC.
       Dear Senator Enzi: I am writing in support of President 
     Obama's nomination of M. Patricia Smith for Solicitor General 
     of the United States Department of Labor.
       The Partnership for New York City is an organization whose 
     members include many of the nation's most prominent business 
     leaders. Our mission is to work with government, organized 
     labor and the not-for-profit sector to build a stronger city 
     and state, with a focus on education, infrastructure and the 
     economy.
       During the past year, we have been particularly concerned 
     about the threat that the global financial crisis and 
     recession have had on the financial services industry, which 
     is a key source of jobs and tax revenues for New York. 
     Thousands of city businesses and workers, either directly or 
     indirectly, have been casualties of this crisis. As New York 
     State Labor Commissioner, Patricia Smith has been a strong 
     voice and essential partner in addressing the issues arising 
     from this crisis and helping to insure that New York remains 
     the financial capital of the country and the world.
       Ms. Smith acted decisively to mobilize New York, 
     Connecticut and New Jersey to collaborate as a region with a 
     shared interest in the recovery of the financial services

[[Page 918]]

     industry and keeping top talent here. She led efforts to 
     secure a $20 million National Emergency Grant that is 
     currently helping thousands who have been laid off to train 
     for new careers. She established a New York Early Alert/
     Retention Team to respond to small businesses in danger of 
     closure, relocation, or financial crisis that would result in 
     mass layoffs.
       She has aggressively promoted programs that help employers 
     retain productive workers during downturns and fund employer-
     sponsored worker training initiatives. She increased employer 
     participation in the federal Work Opportunity Tax Credit 
     (WOTC), which provides incentives to employers to hire people 
     who are hard to employ. The Partnership strongly supports 
     these programs, and every one of them has seen unprecedented 
     success in New York City under Commissioner Smith's 
     leadership.
       As an advocate for businesses and economic development in 
     New York for more than twenty-five years, I have had the 
     opportunity to interact with many public officials. Ms. Smith 
     stands out as one of the most dedicated and effective of our 
     state commissioners and I consider her to be an excellent 
     choice for the post that the President has selected her for.
       We hope you will support her nomination and would be happy 
     to answer any questions you might have about her work with 
     the New York business community.
           Sincerely,
                                                 Kathryn S. Wylde,
     President & CEO.
                                  ____



                             Long Island Forum for Technology,

                                                  August 21, 2009.
     Re Nomination of M. Patricia Smith, U.S. Department of Labor 
         Solicitor.

     Hon. Michael B. Enzi,
     U.S. Senate,
     Washington, DC.
       Dear Senator Enzi: As the President of the Long Island 
     Forum for Technology I am writing in support of the 
     nomination of Ms. Patricia Smith for the position of 
     Solicitor General at the United States Department of Labor.
       Founded in the 1970's, LIFT is a not-for-profit 
     organization whose focus is on technology-driven economic 
     development throughout the Long Island region. Our success is 
     evidenced by the recognition and responsibilities conferred 
     on us by our partners in the State and Federal Government 
     including:
       LIFT serves as the U.S. Department of Commerce 
     Manufacturing Extension Partner (MEP), one of nearly 350 MEP 
     locations across the country;
       LIFT serves as the NYS Foundation for Science, Technology 
     and Innovation (NYSTAR) designated Regional Technology 
     Development Center (RTDC) for the region;
       LIFT serves as the NYS DOL Sector Intermediary in the 
     Advanced Manufacturing Sector and on the National Governors 
     Association (NGA) Sector Policy Academy.
       It was in the last role that we have come into contact and 
     worked with NYS Department of Labor Commissioner Smith and 
     the programs she sponsored on work force transformation in 
     the Manufacturing and Healthcare sectors.
       Under Commissioner Smith's able and visionary leadership, 
     the New York State Department of Labor conceived, launched 
     and funded a program known as Regional Workforce 
     Transformation (I3N). This program broke new ground in the 
     connectivity between industry and education. With its 
     industry-driven initiative structure it created an 
     environment for innovation, and increasing skill grwoth, 
     focused on creating Long Island's future workforce.
       This program is now entering its 2nd year, with over 600 
     individuals having gained a wide variety of new and upgraded 
     skills training. This has led to the transformation of many 
     individual lives with the results borne out in job placements 
     and position upgrades.
       With a strong record of achievement and leadership, 
     Patricia Smith has been and outstanding Commissioner of the 
     NYS Department of Labor. With her vision and her energy, we 
     believe she will make an outstanding addition to the U.S. 
     Department of Labor's Leadership team and we urge her 
     earliest confirmation by the United States Senate.
           Yours truly,
                                              C. Kenneth Morrelly,
     President.
                                  ____



                             U.S. Women's Chamber of Commerce,

                                                  August 25, 2009.
     Re Nomination of M. Patricia Smith, U.S. Department of Labor 
         Solicitor General.

     Hon. Edward M. Kennedy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kennedy: On behalf of the U.S. Women's Chamber 
     of Commerce, our 500,000 members and the millions of women 
     nationwide, I am writing to send our strong support for 
     President Obama's nomination of Ms. Patricia Smith, and I 
     urge the Committee to confirm Ms. Smith as Solicitor General 
     at the United States Department of Labor. Ms. Smith has 
     demonstrated that she is well prepared and qualified for the 
     position, and will act on behalf of those who are facing 
     unfair labor practices.
       The U.S. Women's Chamber of Commerce represents both 
     working women and women business owners. While one would 
     think that these two constituencies would be contradictory in 
     viewpoint, they are not.
       From 1997-2006, the number of women-owned firms grew by 
     42.3% largely due to women leaving Corporate America in 
     droves in search of equal pay, opportunities for promotions 
     and a family friendly work environment. What they found 
     instead was more barriers to opportunity. In fact, during 
     this same time period, the revenues for all women-owned small 
     businesses grew only 4.4%--representing a 38% overall 
     decrease in revenues.
       Clearly, women found that business ownership came with a 
     whole new set of challenges including the inability to fairly 
     access federal contracts, capital and affordable health care. 
     And, most profoundly, they are faced by the growing challenge 
     of competing with businesses that undercut their 
     competitiveness by engaging in unfair labor practices.
       Those that pay fairly and play fairly do not fear Ms. 
     Smith's no-nonsense approach to labor law enforcement. They, 
     in fact, see that they are being protected.
       After learning of Ms. Smith's qualifications, expertise and 
     the laws she has worked to uphold, I can clearly see that she 
     is someone who would work with conviction to enforce the laws 
     of the United States of America. Additionally, I am impressed 
     with her out-of-the-box thinking in creating programs that 
     will keep jobs. We especially need these attributes in this 
     time of economic challenge.
       Please accept Ms. Patricia Smith's nomination, and confirm 
     Ms. Smith as Solicitor General at the United States 
     Department of Labor.
           Sincerely,
                                                   Margot Dorfman,
     CEO.
                                  ____

         Sheet Metal and Air Conditioning Contractors' National 
           Association, Inc.,
                                     Chantilly, VA, June 22, 2009.
     Hon. Edward M. Kennedy, Chairman,
     Hon. Michael B. Enzi, Ranking Member,
     Health, Education, Labor & Pensions Committee, U.S. Senate, 
         Washington, DC.
       Dear Senators Kennedy and Enzi: I am writing on behalf of 
     the Sheet Metal and Air Conditioning Contractor's National 
     Association in support of Patricia Smith's confirmation as 
     Solicitor of the Department of Labor. As one the oldest and 
     well respected national trade associations with over 1800 
     members in the United States and Canada, we wholeheartedly 
     endorse this appointment based on her past demonstrated 
     commitment for enforcement of labor laws and the rights of 
     workers.
       In her past role as New York State's Secretary of Labor, 
     she brought a high degree of professionalism and equity for 
     many of our contractor members in New York State. Ms. Smith 
     was a strong advocate for protecting workers rights and 
     worked aggressively against the misclassification of 
     workers--an all too common problem for unionized contractors 
     not only in New York State, but nationwide.
       SMACNA supports her appointment as the Solicitor of the 
     Department of Labor and urges her immediate confirmation. We 
     appreciate your consideration.
           Sincerely,
                                              Vincent R. Sandusky,
     Chief Executive Officer.
                                  ____

                                         Plattsburgh North Country


                                          Chamber of Commerce,

                                 Plattsburgh, NY, August 10, 2009.
     Re Nomination of Patricia Smith to be DOL Solicitor.

     Hon. Michael B. Enzi,
     U.S. Senate,
     Washington, DC.
       Dear Senator Enzi: Our Chamber is the largest business and 
     economic development alliance in northern New York and one of 
     the five largest in our state, representing more than 3,250 
     companies. I have had the pleasure of serving as President 
     and CEO since 1993, having previously served as Executive 
     Assistant to former Congressman Gerald Solomon (R-NY 23) for 
     fourteen years.
       During my sixteen years of engagement in business and 
     workforce development in this region, I have had many 
     occasions to work with our New York State Labor Department in 
     various efforts to assist employers and to design and 
     implement meaningful workforce training programs. I am 
     writing to tell you first hand that until Patricia Smith was 
     named Commissioner, we enjoyed an excellent working 
     relationship with our local State Labor Dept. officials but 
     enjoyed little leadership, engagement or even interest from 
     the Commissioner's office.
       Since she assumed leadership of the New York State Labor 
     Dept. in 2007, we have enjoyed not only attention and 
     engagement from Patricia Smith but a genuine working 
     partnership.
       This includes the design, funding and implementation of a 
     three-year Aerospace, Transportation Equipment & Green Tech 
     Workforce Strategy for our region, our first multifaceted 
     approach to the creation of a

[[Page 919]]

     capacity in our region to attract and support employers in 
     these targeted sectors. The creative approach features 
     everything from support for the start-up of Plattsburgh 
     Aeronautical Institute, an FAA-certified A&P mechanics' 
     school, to further development of a new Global Supply Chain 
     Management school at our local university, to the launch of 
     new electronics and alternative energy technology programs at 
     our community college, and more.
       And although we are just beginning the second year of 
     implementation under the three-year plan, the results are 
     already tangible. Plattsburgh Aeronautical Institute is set 
     to fully open its doors next month, and is already putting us 
     in play in terms of marketing the former Plattsburgh Air 
     Force Base for future aerospace activities. And Volvo/Nova 
     Bus has just opened a new plant in our community with 300 
     employees for the production of transit buses in the U.S., a 
     venture that would not have been feasible without the 
     programs she helped us get up and running.
       In these and other ways, Patricia Smith has worked with us 
     to give true life to the notion of wedding economic and 
     workforce development. But at the same time, she has also 
     been a partner in serving the current needs of our employers.
       A prime example is a major workplace safety training 
     program administered through our Chamber under contract with 
     the State Labor Dept., bringing meaningful safety training to 
     hundreds of small employers who could never access it 
     otherwise.
       Even in current tough situations, in which some of our 
     manufacturers have needed to reduce production, she and her 
     team have been there with creative solutions. This includes a 
     Shared Work program now being used by a major railcar 
     assembly plant. Rather than fully lay off a percentage of 
     their workers, they are using this program to reduce their 
     hours, with NYSDOL allowing them to access unemployment 
     insurance benefits for the percentage of hours they are not 
     working while being paid by the company for the remainder. 
     The obvious result is a better economic interim for the 
     employees, and the ability for the company to hold onto 
     skilled employees they want to bring back to fulltime when 
     orders pick up.
       I could cite additional examples, but the bottom line is 
     this. Patricia Smith has been an outstanding partner as 
     Commissioner of the New York State Labor Dept., and will be 
     an outstanding Solicitor for the U.S. Labor Department. We 
     strongly encourage her earliest possible confirmation by the 
     Senate.
       Please let me know if there are any questions we might be 
     able to answer, and thank you for your consideration.
           Sincerely,
                                                 Garry F. Douglas,
                                                President and CEO.

  Mr. HARKIN. Commissioner Smith has a keen appreciation for the 
reality that challenging economic times put vulnerable workers even 
more at risk. Under her leadership, the New York Department of labor 
has ramped up enforcement efforts to protect workers who are being 
mistreated and has leveled the playing field for responsible employers 
who play by the rules but face unfair competition from the lawbreakers.
  It is another point I wish to emphasize. By going after the 
lawbreakers, what Ms. Smith has done is help level the playing field 
for the responsible employers who are not engaging in these kinds of 
bad activities.
  Commissioner Smith has developed an innovative new approach to 
protecting workers. Her strategy--which involves targeting problem 
industries and increasing focus on low-wage and immigrant workers--has 
become a model for other States. Her fair and effective approach to 
enforcing the law has won her the strong endorsement of the New York 
State District Attorneys Association.
  Mr. President, I ask unanimous consent that endorsement letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    District Attorneys Association


                                     of the State of New York,

                                               September 22, 2009.
     Hon. Tom Harkin,
     Chairman, Senate HELP Committee,
     Washington, DC.
       Chairman Harkin: As an association of the 62 elected 
     District Attorneys, we represent very distinct and diverse 
     regions of New York, However, we are united in our efforts to 
     enforce the law and protect the people of our great state. 
     When the membership was polled whether to support the 
     nomination of Commission Patricia Smith to become United 
     States Solicitor of Labor, District Attorneys from across the 
     state and party lines enthusiastically agreed, because she 
     shares our commitment to law enforcement and has shown a 
     dedication, fairness and professionalism that would make her 
     a tremendous asset to the Department of Labor. The New York 
     District Attorneys Association strongly endorses the 
     appointment of Commissioner Patricia Smith for Solicitor of 
     Labor.
       Commissioner Smith's thirty year record of accomplishment 
     proves that she is uniquely qualified to serve and has the 
     experience and expertise to serve as Solicitor of Labor. 
     Beyond her exemplary work as Commissioner, she has served 
     both in the New York State Office of the Attorney General as 
     the Assistant Attorney General in charge of the Labor Bureau 
     and as the Deputy Bureau Chief and Section Chief of the Labor 
     Bureau. In these positions, she conducted and oversaw labor 
     law litigation in both state and federal courts. Under both 
     Democratic and Republican Attorney Generals, she effectively 
     brought together management, unions, employers and employees, 
     to solve disputes and ensure the effective and fair 
     application of labor and employment laws.
       Commissioner Smith built a proactive labor docket, 
     enforcing labor laws with innovative approaches: developing a 
     Code of Conduct, partnering with advocacy groups, targeting 
     enforcement efforts on an industry-wide basis, and focusing 
     on low-wage and immigrant workers. She actively cooperated 
     with District Attorneys in bringing criminal cases arising 
     out of wage violations on public work cases. She enhanced 
     effectiveness of the minimum wage law by obtaining the first 
     criminal felony conviction in a garment case, the first 
     felony indictment in a minimum wage case, the first criminal 
     prosecution for failure to maintain payroll records, and the 
     first case brought under a joint employer theory.
       Moreover, she successfully argued two Employment Retirement 
     Income Security Act cases before the United States Supreme 
     Court in 1996 and 1997. Her sound legal arguments for New 
     York State Conference of Blue Cross & Blue Shield Plans vs. 
     Travelers was noted by the Office of the Attorney General and 
     the legal community. As a result, she was awarded the Louis 
     Lefkowitz Award for outstanding service to the State of New 
     York.
       In addition to those cases, she has had extensive labor law 
     experience. She has been lead and co-counsel in over 100 
     cases in state and federal court primarily in the areas of 
     labor standards (minimum wage, prevailing wage, and 
     overtime); unemployment insurance, workforce development, 
     employee benefits, occupational health and safety, federal 
     preemption of state laws, constitutional issues, and workers' 
     compensation. She has defended the jurisdiction, procedures 
     and determinations of the Department of Labor, the 
     Unemployment Insurance Appeals Board, and the Workers' 
     Compensation Board and successfully defended State labor laws 
     against claims of ERISA, NLRA and IRCA pre-emption.
       Most significant is her body of work as Commissioner of the 
     New York State Department of Labor. After being confirmed in 
     2007 by the New York State Senate, Commissioner Smith set 
     about to create the Office of Special investigations (OSI) 
     that identifies and prepares unemployment fraud and wage and 
     hour cases for criminal prosecution. This innovative 
     enforcement office has developed relationships with all the 
     District Attorneys, educating prosecutors about criminal 
     prosecutions under the labor law and referring ``prosecution 
     ready'' cases. To date, OSI has referred 1,735 unemployment 
     insurance fraud cases representing overpayments of over $77 
     million. These criminal referrals are increasing every year 
     with a 60% increase from last year.
       Commissioner Smith overhauled wage and hour enforcement at 
     the Department by strategically targeting enforcement to 
     either low-wage industries such as apparel, grocery stores, 
     car washes and race courses, or to poor neighborhoods, each 
     time bringing national attention to the plight of workers. In 
     2008, the Department collected and disbursed $24.6 million 
     for 17,000 workers across the State, resulting in a 37% 
     increase in collections from previous years and significantly 
     increased compliance by employers.
       Commissioner Smith spearheaded the first-of-its kind Joint 
     Enforcement Task Force on Worker Misclassification that 
     brought together various state and federal agencies to focus 
     on misclassification of workers as independent contractors 
     and off the book work, which result in tax violations, 
     workers' compensation fraud, and unreported wages and 
     unemployment taxes. To date, the Task Force has identified 
     over 25,100 instances of employee misclassification and over 
     $292 million in unreported wages. Many of these 
     investigations uncovered criminal violations, and the Office 
     of Special Investigations worked with District Attorneys 
     throughout the state to ensure that corrupt business 
     practices were prosecuted. Three of these cases resulted in 
     criminal convictions. Several more are currently under 
     investigation by prosecutors. Many states are now following 
     New York's lead and creating task forces to tackle this 
     national problem.
       It is for these reasons, the District Attorneys Association 
     of the State of New York strongly endorses the nomination of 
     M. Patricia Smith as the United States Solicitor of Labor.
                                                Kathleen B. Hogan,
                                                 DAASNY President.


[[Page 920]]

  Mr. HARKIN. Under her leadership, New York State has strategically 
targeted enforcement efforts among low-wage employers, such as apparel 
manufacturers, grocery stores, and car washes. This has resulted in a 
record recovery of unpaid wages that were stolen from workers' pockets. 
In 2008 alone, 17,000 workers across the State of New York received 
more than $24.6 million in back wages thanks to these enforcement 
actions.
  There are real faces and real families behind these numbers. They 
include 170 janitors on Long Island who were being paid less than $100 
a week, despite working 12-hour days, and garment workers in Queens, 
working in sweatshop conditions for $3 less than the minimum wage.
  Patricia Smith led the New York Labor Department to investigate 
minimum wage and overtime violations at the Jin Shun factory in Queens, 
NY. Employees were paid $250 for working a 66-hour work week. That is 
$3.79 an hour, far below the minimum wage. Well, that investigation 
revealed $5.3 million in wage violations in one of the worst sweatshops 
in the United States--$5.3 million.
  Another one that came in is New York State Labor Commissioner 
Patricia Smith revealed illegal practices at a Long Island cleaning 
service. Again, I referred to this. The employees worked 12 hours a 
day, 60 hours a week, bringing home less than $100 a week, and 170 
workers were paid far less than they actually earned. The illegal 
deductions amounted to $238,581.
  Again, this is what Patricia Smith has done. These are real people 
whose hard lives--and they have hard lives anyway--were made a little 
bit easier because Patricia Smith went to bat for them and that made a 
difference.
  In light of Commissioner Smith's very impressive record, I had hoped 
all of my colleagues would agree that she will be a tremendous asset to 
the Department of Labor and that she deserves to be confirmed as 
quickly as possible. Unfortunately, some of my colleagues on the other 
side of the aisle have raised concerns about Commissioner Smith's 
nomination. These were brought up last year in our committee, and these 
concerns are focused on a program at the New York Department of Labor 
called Wage and Hour Watch. This was a small pilot project which 
allowed the department to partner with worker advocates, community 
organizations, and others, to educate workers about their rights, such 
as: You do have the right to the minimum wage. You do have the right to 
overtime pay. Frankly, that sounds like a pretty good idea to me.
  I think it is clear from what I have just pointed out there are far 
too many violations of our labor laws, especially among low-income 
workers. That is where it hits--low-income workers, minimum-wage 
workers and others such as that. I think the more education people such 
as that can have about their rights, about what the law is, the better 
off we all are.
  Some of my Republican colleagues do not agree with New York's 
approach. Well, that is an issue we can certainly debate, if you like. 
But beyond these policy concerns, my colleagues have also suggested 
that Commissioner Smith's statements about this program raised 
questions about her integrity and her management skills. Some have gone 
so far to suggest that she is not qualified for this position or that 
she has not been truthful with Senators.
  These are very serious accusations against a sitting, dedicated 
public servant. I take them very seriously. I took them very seriously 
last year. So I asked my staff to get me all of the documents. We 
investigated this from the beginning to the end with every relevant 
document. I spoke personally with Commissioner Smith and walked through 
this whole thing with her from beginning to end. After doing all of 
that, I can say with complete confidence that concerns expressed by my 
Republican friends are totally misplaced.
  Did Commissioner Smith misspeak on two occasions at her hearing? Yes, 
and we talked about that with Commissioner Smith. She admitted that. 
First she said she hadn't had any ``conversations'' about expanding the 
Wage and Hour Watch program. Well, I went back and looked at the record 
and the kinds of questions that were asked. Quite frankly, you know, 
when you are asking questions and you have a witness on the stand, 
maybe what they hear is not what you ask. That happens all the time. As 
a Senator, sometimes I ask a question of a witness and they give me an 
answer and I think, they didn't even hear my question. That happens all 
the time, so you have to repeat it. She was asked this question in 
which she basically said she had not had any conversation. When she 
looked at the record, she clearly--and then repeatedly explained 
afterward in writing that she intended to say she had not authorized 
the expansion. There was no authorized expansion. There was a pilot 
program. After the pilot program they were then going to look at the 
results and think about what they wanted to do next. In fact, that is 
what is happening right now. The pilot program has ended and is being 
assessed at this point in time. Again, Commissioner Smith clarified 
this response on this issue in writing to the committee.
  Commissioner Smith also testified at the hearing that the idea for 
the Wage and Hour program came from the New York Department of Labor, 
the department she oversees. Again, going back through the record and 
talking with Ms. Smith, it is clear her testimony was correct to the 
best of her knowledge at that time. What she later found out is that 
one of her deputies had consulted with an outside group in the early 
stages of the program. Commissioner Smith was not aware of this fact at 
the time of her testimony. She subsequently corrected her testimony 
after she had learned about the prior communications by her staff with 
an outside group.
  Commissioner Smith's explanations are completely consistent with the 
documents the HELP Committee has. In my view, that should be the end of 
it. She made innocent errors, she corrected them, and there is 
absolutely no evidence of any underlying wrongdoing or any intention to 
mislead our committee. I will come back to this point again and again 
and again in the ensuing discussion, if there is one; however long it 
takes, I will come back to this point, and that is this: No one is 
alleging that the Wage and Hour pilot program was illegal or unethical 
or in any way nefarious. It was perfectly legal, perfectly ethical, 
aboveboard. It was documented. There were pieces of paper and stuff. It 
was all out in the open. No one is alleging that. So if Ms. Smith made 
an incorrect statement, she wasn't trying to cover up some wrongdoing; 
she wasn't trying to cover up something that was being done that was 
sort of under the table.
  This was perfectly legal. So why would you want to cover up? Why 
would you want to either mislead the committee or cover up something 
which was perfectly legal, perfectly open, perfectly aboveboard? I 
think what those who have kind of accused her of misleading the 
committee are trying to do is to cloak it as though there was something 
wrong with this, that there was something she was hiding. There was 
nothing to be hidden. Again, I will put in the Record the documentation 
that when people went through this training program for the Wage and 
Hour Watch, they got a nice little piece of paper and they got a little 
badge, a little card. There was nothing under the table about this 
whatsoever.
  So when you hear things such as she misled the committee, keep in 
mind, she didn't mislead them about anything at all; she incorrectly 
made a couple of statements which she then corrected in writing. But 
there was nothing illegal or unethical about what she was testifying 
about, so there was nothing to mislead the committee about. These were 
simply innocent mistakes.
  My Republican colleagues have argued that Commissioner Smith's 
misstatements are a problem because they were based now on 
misinformation from her staff and thus reflects on her ability to 
manage a large organization. Again, let's look at it this way: We are 
all busy public officials. As Senators we have large staffs here and we

[[Page 921]]

have them in our State. We try to keep everything going, but every once 
in a while someone makes a mistake, or someone does something. And we 
delegate. We delegate to our Chiefs of Staff. As committees, we 
delegate to our staffs to do certain things. Let's put this in 
perspective as it pertains to Commissioner Smith. She runs an $11 
billion--billion with a ``b''--agency in the State of New York with 
over 4,000 staff. How big was this Wage and Hour Watch? A $6,000 pilot 
project out of an $11 billion budget. I have to tell my colleagues--
let's be honest about it. We all deal with our staffs, we deal with our 
budgets. This would be like something worth maybe $5 or $10 in our 
budget. Do I pay attention to it? I would ask my staff to take a look 
at it, but me, personally? I can't. We don't have the time to do that. 
That is why we have our staffs to do that. So for her not to have known 
intimately every little detail of a $6,000 pilot project--a pilot 
project--well, to me, that makes sense.
  In the meantime, while they were doing this, she is out there going 
after all of these people whom I mentioned here getting back wages for 
people who were cheated out of overtime, who were being paid less than 
the minimum wage. That is where her focus was: helping families get 
their due recompense from their work. This was all during, as we know, 
an unprecedented economic crisis. So we have to keep that in focus.
  It seems to me that the real concern of Ms. Smith's critics with the 
Wage and Hour Watch program is that it was an innovative approach to 
enforcing the law. Historically, it has been very difficult to protect 
the rights of workers in low-wage industries because they are so 
vulnerable to abuse, and they are often afraid to approach the 
government for help. They can be fired for nothing. They can be 
dismissed. These are low-income workers or minimum wage, or barely 
above minimum wage. So calling on community groups, religious groups, 
and others to play a role in reaching out and bridging this gap I think 
is an important idea. Quite frankly, I think it merits further 
consideration.
  It is important to understand how this pilot project worked in 
practice. Participants did not have any special authority or any 
enforcement power. They could not come onto private property without 
permission. They could not interfere with business operations. These 
were ordinary citizens who volunteered--volunteered--to distribute 
flyers, to sit at information booths, educate workers about their 
rights under the law. This program was not by any stretch of the 
imagination radical. It is simply a way to ensure that our working 
people are not unknowingly victimized by reaching out to the community. 
For many of these people English is a second language. They may be new 
immigrants to this country. They have their green cards or maybe they 
are now citizens, but they are at the bottom of the ladder and they 
don't know all the laws. They don't understand all the intricacies. It 
would be I think logical to reach into that community, whether it is a 
Hispanic community, a Latino community, it could be Somalians who are 
here or it could be some who have come here from Bosnia, some Asian 
immigrants who come here from Vietnam or from Cambodia, all of these 
people who have come into this country to work hard and to raise their 
families here and contribute to our American society. They are at the 
bottom. It seems logical to me that you would go to that community, 
people in the community who speak the language, who understand the 
customs, who are intimately knowledgeable of many of these families, to 
work with them to let them know what their rights are. Surely no one is 
going to come here to the floor and argue these people should be kept 
in the dark about what their rights are. Again, this was on a volunteer 
basis.
  I applaud Commissioner Smith for having this type of program. It is 
the kind of innovative thinking we need to protect the most vulnerable 
workers during these very tough economic times.
  It is my knowledge, my information, that this pilot program has ended 
and is now being assessed to see if it needs to be changed or fixed, 
what needs to be done, and do they need to expand it even more. Those 
decisions are being made by the State of New York right now.
  There are so many things we need to be doing to build a brighter 
future for working families: fostering new industries, investing in our 
communities, building skills, shoring up the safety net, but too often 
we neglect to mention the importance of simply enforcing our laws. That 
is all we are talking about. We are not talking about doing anything 
other than that. When the law says you have to pay the minimum wage, 
you ought to be paying the minimum wage, not less. When the law says 
you should pay time and a half over 40 hours, you should pay time and a 
half over 40 hours, not less than that. This should not be a matter for 
controversy or any partisanship. Fair treatment is the foundation of 
real security and opportunity for American workers, and ensuring this 
fair treatment starts with a strong Solicitor of Labor.
  Patricia Smith is a seasoned, dedicated public servant with an 
exceptional record of achievement and unimpeachable integrity--
unimpeachable integrity. Her nomination should be confirmed by the 
Senate as quickly as possible so she can get to work helping working 
families to succeed during these very tough economic times.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Alaska is 
recognized.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 5 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                   Remembering Dr. William G. Demmert

  Ms. MURKOWSKI. Mr. President, I rise today to honor Dr. William G. 
Demmert, known by many as Kaagoowu (a man with the strength of a stump) 
of the Tlingit ``Naasteidi'' Eagle clan--a pioneer in the cause of 
improving Indian education and the Nation's leading researcher on 
Native language immersion and culturally based education.
  I am saddened to report that Dr. Demmert, an invaluable pioneer in 
the cause of justice for Indian education, died January 19, 2010, in 
Bellingham, WA, at the age of 75.
  He was a man beloved by indigenous peoples of Alaska, the Southwest, 
the Arctic nations, and New Zealand--especially the Tlingit and Lakota, 
by Hawaiians, and by Maoris. He will be sorely missed. In particular, I 
would note that we in Alaska honored and cherished Kaagoowu. Residents 
of southeast Alaska say of his departure that he ``Walked into the 
Forest,'' but his spirit and memory live on. He was tied to the lands 
of Alaska as a fisher and gatherer; he studied and recorded the 
landscapes of ancestors as a scholar and as clan member. He served 
Alaska as superintendent, principal, and teacher for Klawock City 
School; a teacher in Fairbanks; a professor of education at the 
University of Alaska Southeast; as a Commissioner of Education for the 
State of Alaska; and as a trustee of the Sealaska Heritage Institute. 
Throughout his life, he united Alaskans with the Lakota and, through 
his work strengthened our bonds with Indian tribes across the Nation 
and with other indigenous Peoples throughout the Arctic and South Seas. 
He contributed to the Nation by ensuring that the richness of our 
cultural and linguistic diversity survived in the schools and in our 
daily lives.
  Throughout his professional life, Dr. William Demmert championed 
three important education issues: 1) early learning and preschool 
programs; 2) meeting the educational needs of at-risk youth; and 3) 
improving the academic performance of American Indian, Native Hawaiian, 
and Alaska Native children.
  The focus of Dr. Demmert's research was the education of American 
Indian, Alaska Native, and Native Hawaiian students. His work was 
invaluable in the exploration of educational programs and schools 
serving Native communities, helping educators and policy makers to 
better understand the role of

[[Page 922]]

traditional knowledge in instructional practice, and assessing what 
works in providing a school environment that values academic 
performance, citizenship, and the traditional ways for Indian children. 
His research on Native language immersion education has proven 
unequivocally that heritage language acquisition strengthens critical 
thinking, college preparedness, and overall academic success.
  Dr. Demmert was born in Klawock, AK, to William and Florence (Allman) 
Demmert. He was of Tlingit and Oglala Lakota heritage and a member of 
the Demmert family of southeast Alaska, many of whom made important and 
positive contributions to their communities and to Alaska at large 
through their work as teachers, education researchers, and leaders. 
``Dr. Bill,'' as he was known by many in southeast Alaska, lived up to 
his heritage and his ancestors' examples.
  Bill's experiences growing up within the Alaska education systems in 
the 1940s and early 1950s ran the gamut of the kind of educational 
opportunities available to young Alaska Native people at that time. He 
attended a BIA school, a territorial school, and boarding schools both 
in and out of State. These experiences, and the support he received 
from his extended family, stayed with him and informed his view of 
Indian education.
  Bill was not one of those ivory tower academics with no roots in the 
real world. After earning his bachelor's and master's degrees and 
teaching in Washington State, Bill returned to Alaska, teaching in 
Fairbanks, Craig, and Klawock, where he also served as both principal 
and superintendent. He spent the 1960s learning how to educate from the 
ground up.
  In 1969, he and few friends attending a conference on Indian 
education decided to form a new group, one they thought would represent 
the unique needs of Indian educators, students, and communities. The 
group they formed was the National Indian Education Association. The 
NIEA has become, since that initial conversation over coffee, a 
powerful voice for Indian students and educators across the country.
  Soon after, Bill was asked to work with Senators Kennedy and Mondale 
to help write the Indian Education Act of 1972, legislation that was 
intended to respond to the U.S. Senate's report, ``Indian Education: A 
National Tragedy, A National Challenge.'' Today, we know the Indian 
Education Act as title VII of the Elementary and Secondary Education 
Act. Thousands of Indian educators and countless children and parents 
have found a voice and benefited from programs created by Bill's work 
to create solutions to the tragic shortcomings in Indian education.
  In 1973, having earned his doctorate in education from the Harvard 
Graduate School of Education, Bill returned to the world of public 
policy, working for the U.S. Department of Health, Education, and 
Welfare as Deputy Commissioner of Education for the U.S. Office of 
Indian Education and as Director of the Office of Indian Education 
Programs at the Bureau of Indian Affairs.
  After 5 years with the Federal Government, Bill returned to academia 
at the University of Alaska Southeast and finished the 1980s as 
Commissioner of Education for the State of Alaska. As Commissioner from 
1986 through 1990, Dr. Demmert is credited with ``changing the 
conversation'' on education. Today, many of the issues he championed 
have become mainstream in Alaska education.
  In 1991, after Dr. Demmert left office as Commissioner, President 
George H. W. Bush named him and former U.S. Secretary of Education 
Terrell H. Bell cochairmen of the prestigious Indian Nations at Risk 
Task Force, which issued an influential report to the President and 
Congress entitled, ``Indian Nations at Risk: An Educational Strategy 
for Action.'' A principal writer of the report, this effort gave Bill 
the opportunity to assess nearly 20 years of work and progress in the 
education of Native American children. Among other elements, the report 
published an Indian Student Bill of Rights. It reads:

       The Indian Nations at Risk Task Force believes that every 
     American Indian and Alaska Native student is entitled to:
       A safe and psychologically comfortable environment in 
     school.
       A linguistic and cultural environment in school that offers 
     students opportunities to maintain and develop a firm 
     knowledge base.
       An intellectually challenging program in school that meets 
     community as well as individual academic needs.
       A stimulating early childhood educational environment that 
     is linguistically, culturally, and developmentally 
     appropriate.
       Equity in school programs, facilities, and finances across 
     Native communities, and in schools run by the federal 
     government and public schools in general.

  In writing and speaking about this report, he reflected upon his 
grandparents', his parents', and his own education in BIA schools, 
whose mission it was to assimilate Natives into the ``American way of 
life and culture.'' He felt blessed that his grandfather and parents 
were fluent in both Tlingit and English, and that they encouraged him 
to be so as well. He reflected with sadness that so many young people 
he knew were fluent in neither. He expressed concern that over the 
course of his life, too many young people were educated in schools that 
reflected no respect for their language and culture, and was surprised 
that he survived this.
  Dr. Demmert spent the remaining years of his life researching and 
teaching at Western Washington University. Before retiring in 2008, he 
served as a principal investigator, in partnership with Northwest 
Regional Educational Laboratory and other major partners from Arizona 
to Hawaii working to develop and test assessments in schools using 
Native language immersion and culturally based instruction.
  Not only recognized as an expert in indigenous education here in the 
United States, Dr. Demmert leant his expertise to education 
policymakers and practitioners of many nations, serving as cochair of a 
coalition of the Ministers of Education of northern nations, including 
Norway, Sweden, Finland, Greenland, the Russian Federation, Nunavut 
Territory, Northern Quebec, and the Yukon Territory.
  Recognized for his long experience and vast expertise in Native 
education, particularly with regard to Native language instruction, Dr. 
Demmert was called to testify in 2000 before the Senate Indian Affairs 
Committee in support of the Native American Languages Act Amendments 
Act. Bill celebrated the fact that ``Native language, the traditional 
mores and cultural priorities, the importance of tribal identity and 
lineage have all become higher priorities as we build a contemporary 
culture and context of the school that supports Native students' 
identities.'' That bill passed the U.S. Senate by unanimous consent.
  In addition to his professional accomplishments, Dr. Demmert was a 
good man. He had a great ability to put people at ease. He understood 
his role as mentor, and built bridges between academia, policymakers, 
and everyday people. He was a teacher of teachers, and a leader of 
leaders.
  Dr. William G. Demmert was responsible for great strides in Indian 
education, and had great hopes for its future. Now, as we celebrate a 
life well lived and his innumerable contributions to the education of 
Indian children, we must all rededicate ourselves to ensuring that 
every child among our first peoples has the opportunity to learn in an 
atmosphere of respect where his language, culture, and history are 
taught and celebrated, and where every Indian child can achieve his or 
her highest aspirations. We must ensure that his legacy--the Indian 
Education Act and indigenous language education as a means to 
preserving the sacred languages of our first peoples--is kept vibrant 
and meaningful for the future.
  Bill Demmert, Kaagoowu, is survived by his wife of 42 years, Nora 
Demmert; sons William and Philip; daughters Nora and Melanie; brothers 
Lee and Ted; his sister, Justna; five grandchildren, two great-
grandchildren, and a multitude of other relatives.
  On behalf of the U.S. Senate, I am proud to recognize and thank Dr. 
William G. Demmert for his long years of service. I extend my 
condolences and sincere sympathy on his passing to his

[[Page 923]]

family, friends, colleagues, and students.
  I ask unanimous consent that the attached poem and resolution written 
in tribute to Dr. Demmert from the Native people of Hawai`i be printed 
at the end of my statement in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         Ka Makua Bill Demmert

                     (By Professor Larry L. Kimura)

     For you is our aloha and highest regard, Bill Demmert,
     A close friend, a teacher and a champion of Native peoples.
     You worked for laws to secure the wellbeing of our Nations,
     Providing direction from the essence of our ancestors for a 
           vibrant education.
     You are with us, the progeny, the advocates for the language 
           of our homeland,
     For you are a soaring hawk on a tranquil day in the clear sky 
           over these islands,
     Coming to settle upon a branch of that venerable `ohi`a tree 
           of mountains.
     Your memory and good deeds shall live on in our hearts.

     Nou ko makou aloha e ka makua Bill Demmert,
     He makamaka, he kumu a he me`e nui o na `oiwi.
     Nau i huli na kanawai e pa`a ai ka pono o na lahui,
     I mau na wehiwa kupuna ke ka`i o ka na`auao ola.
     Me makou `oe, na pua, na lehua pai `olehalo o ka `aina,
     He `io kikaha o ka la malie i ka la`i o na Kai `Ewalu,
     A kau mai i ka la`au he `ohi`a kumakua o ka mauna.
     E pulama me ka ho`omana`o mau `ia na pono au.

       Adopted on January 22, 2010 by the Senate of Ka Haka `Ula O 
     Ke`elinolani College of Hawaiian Language, University of 
     Hawai`i at Hilo to be included with its resolution in memory 
     of Dr. William Demmert.

        For Dr. William G Demmert Jr./unuhi `ia na Kaliko (v1.1)

       Acting together as a Committee of Aloha, we, its 
     undersigned members, do herewith extend to you our aloha and 
     with heartfelt sorrow express our collective grief at the 
     announcement of loss that has so recently reached us and 
     informed us that the Wise Tlingit, Oglala Sioux Warrior, the 
     mortal, Dr. William G. Demmert Jr., has fallen unto his 
     carefree sleep as his last breath left him, and has departed 
     to travel on that lonely path from which one does never 
     return. That same grief has affected all of Hilo's Hawaiian 
     language consortium partners, who now stand together 
     shouldering this burden of sadness.
       Whereas the aforementioned Dr. Demmert was a native of that 
     same land where his Tlingit ancestors' piko, or umbilical 
     cords, lie secreted away in the birthsands of Klawock, the 
     place known well for the running salmon, a fish so favored by 
     Hawaiians; and whereas he was an esteemed descendent of the 
     nation from which came the two great logs that are now at sea 
     as the robust hulls of the canoe Hawai`illoa; and
       Whereas the aforementioned Dr. Demmert was, even in his 
     early years, and following in his father's footsteps, a child 
     thirsty for knowledge, always keen to drink heartily from the 
     many rippling tributaries of instruction until he in the 
     fullness of time became one of those in the first group of 
     Native American students to graduate with a doctorate degree 
     from Harvard University in 1973; and
       Whereas the aforementioned Dr. Demmert was one of the 
     founding members of the association put together to fight for 
     the education of Native Americans, the National Indian 
     Education Association, in 1970; and
       Whereas the aforementioned Dr. Demmert became a friend to 
     the Hawaiian people in the year 1993, for his efforts to 
     improve the status of the many native languages of the United 
     States including the Hawaiian language; and
       Whereas the aforementioned Dr. Demmert was both an advisor 
     and confident for us as we continued to work through the 
     multitude of tasks involved in the revival of the Hawaiian 
     language; including here his role as a co-defender of the 
     plans and resources of the `Aha Punana Leo; his role as a co-
     architect of the foundational P-20 framework upon which the 
     Hawaiian language college, Ka Haka `Ula o Ke`elikolani, was 
     built--his hands digging in the very same soil as did our 
     own--; and as co-investigator as we examined ways to improve 
     the abilities and the standing of our young Hawaiian language 
     speakers at Nawahiokalani`opu`u Hawaiian Language Immersion 
     School;
       Therefore upon taking all of this into consideration, we 
     resolve that we are united with you, we as Hawaiian language 
     friends and families of the `Aha Punana Leo, Ka Haka `Ula o 
     Ke`elikolani, and Ke Kula `o Nawahiokalani`opu`u, now and 
     together alongside you as we enter this place of sadness at 
     the loss of the man whom we now praise to the highest.
       Furthermore, we have resolved that we shall be standing as 
     you do in spirit and in prayer, packed shoulder to shoulder 
     against each other, coming from all corners of our land, in 
     order to best send our dearly departed friend to meet the 
     Holy Trinity in the heavens.
       We have also together resolved that our loving embraces 
     will encircle and warm the bereaved family which has 
     experienced such loss at the recent departure this beloved 
     man took as the start of his infinite journey.
       And finally, we resolve that our prayers, wishes, and 
     blessings shall go hand in hand with those of the Episcopal 
     Church in Bellingham on the 25th of January, and so too with 
     the Tlingit of Craig, Alaska, in their February ceremonies: 
     that the man may return to the land of his birth and 
     ancestors; that his hair may once again be blown by the soft 
     breezes of that area; that he may once again inhale the fresh 
     cool fragrances so yearned for and held in fond memory; and 
     that he may heed the distant call of his ancestors to return 
     to be with them in the peaceful calm of love's warm embrace.
       . . . life appears as does a whisp of steam, but is so 
     quickly dissipated . . .
       With love and aloha everlasting, those of the Fellowship of 
     Hilo, Hawai`i Island of the Verdant Green Back.

  The ACTING PRESIDENT pro tempore. The minority leader is recognized.


                               the budget

  Mr. McCONNELL. Mr. President, this morning, we received the 
administration's budget for the next fiscal year. While there are 
plenty of issues raised by this budget, the fundamentals are clear: 
this budget is more of the same--more spending, more taxes and more 
debt.
  I think everyone can agree that last year's budget spent too much. 
With the trillion-dollar stimulus bill and massive increases in 
optional spending, the administration and Democrats in Congress simply 
spent too much and took us into record territory. But the 
administration assured us that it was an anomaly--that we just needed 
to get through the year and then we would get serious about our 
spending in 2010. Fiscal hawks on the other side of the aisle told us 
the same thing every time we raised the issue.
  But now they have produced yet another massive budget filled with 
even more spending than last year's record totals. The President 
proposes to increase spending by another $100 billion--despite having 
already increased the size of the Federal Government to unprecedented 
levels. Even though the administration claimed that the current funding 
was unique due to the economic crisis, they show no sign of slowing 
spending.
  And while spending is going up, taxes are going up even faster. Taxes 
on Americans will increase by over $400 billion--nearly 20 percent--
next year alone, with no improvement in sight. Does anyone truly 
believe this is a good time to raise taxes on job creators or anyone 
else?
  This budget provides a startling figure that should stop us all in 
our tracks. According to the administration's budget, the interest on 
the Federal debt is expected to be nearly $6 trillion over the next 
decade. We have all heard about interest-only loans, but this is the 
equivalent of an average of $600 billion in interest every year. That 
is an astonishing number.
  In fact, in just 4 years the administration predicts the Government 
will have to spend more just to pay interest on the Federal debt than 
it spends on the Departments of Agriculture, Commerce, Education, 
Energy, Health and Human Services, HUD, Interior, Justice, Labor, 
State, Treasury, and the Corps of Engineers, Environmental Protection 
Agency, GSA, NASA, National Science Foundation, Small Business 
Administration and the Social Security Administration--combined.
  In just 4 years, the interest the government will have to pay on our 
Federal debt will be more than it spends on the Departments of 
Agriculture, Commerce, Education, Energy, Health and Human Services, 
HUD, Interior, Justice, Labor, State, Treasury, and the Corps of 
Engineers, EPA, GSA, NSA, National Science Foundation, Small Business 
Administration, and the Social Security Administration--combined.
  The Senate will have an opportunity to write a new budget this year. 
Our leader on this issue, Senator Gregg, will have much more to say on 
the matter as we work to do what so many Americans are doing, and that 
is to get

[[Page 924]]

our budget in order. And I will have much more to say on the individual 
pieces of this blueprint, including the administration's priorities on 
our national and homeland security. But now it is crystal clear that 
this budget is more spending, more taxes, and more debt--more spending, 
more taxes, more debt. Anyone listening to the American people knows 
this is not what they support, it is not what our country needs, and it 
is not the way to grow good jobs.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, I rise today to urge my colleagues to 
support the nomination of Patricia Smith to be Solicitor of Labor. Ms. 
Smith is a well qualified, might I say exemplary, nominee and I 
enthusiastically support her confirmation.
  Most recently, Ms. Smith served effectively as New York's 
commissioner of labor, frequently bringing business leaders, workers 
groups, and government officials together at the table. She has earned 
the support of business groups in her State through her willingness to 
engage in an ongoing working partnership. She has earned the support of 
labor groups in her State by upholding and enforcing New York's labor 
and workplace laws.
  Ms. Smith not only has support from labor and business but bipartisan 
support as well. The entire New York congressional delegation signed a 
letter endorsing her nomination. She has worked under both Democratic 
and Republican administrations during her long tenure in public 
service. Republicans and Democrats alike acknowledge her willingness to 
engage both sides of the aisle and to do so effectively.
  Most important to her position at the department of labor is her 
strong track record of protecting workers. She has demonstrated that 
all workers, regardless of wage, occupation, or gender, deserve the 
fullest protection of New York's labor laws. As commissioner of labor 
there, she targeted enforcement toward the industries and geographic 
areas most susceptible to abuse and managed to increase compliance 
among employers and raise awareness about recurring workplace problems. 
For example, Ms. Smith has led New York's Department of Labor in 
shutting down exploitative sweatshops. Last year, her department's 
investigation turned up an instance where sweatshop operators were 
requiring employees to fraudulently use two sets of timecards, thereby 
avoiding paying overtime. Workers were often required to work 80 hours 
a week, often working 7 days a week, and then were coached to lie to 
labor department investigators. These employers who ignore workplace 
laws cheat taxpayers out of money. The taxpayers are forced to make up 
the difference when taxes on overtime wages are not paid, not to 
mention that this treatment of workers is both illegal and immoral. Ms. 
Smith worked to fix these problems.
  Based on her exemplary work, Ms. Smith has won support from countless 
civil rights groups, including the National Conference on Civil Rights, 
the National Women's Law Center, the American Association of University 
Women, and the Business and Professional Women's Foundation.
  Unfortunately, there are some who have been trying to delay Ms. 
Smith's confirmation. Further delay is detrimental to America's 
workers. The Department of Labor has been deprived of a critical member 
of its leadership team. We should see that it is filled as soon as 
possible. The Solicitor of Labor leads an office of over 600 people who 
work to enforce 200 of our Nation's labor laws. The Solicitor also sets 
long-term planning strategy, participates in shaping legislative 
policy, and interprets legislative language. These are all essential 
elements to the full functioning of our Department of Labor. Delaying 
her confirmation is a disservice to the American workforce.
  For these reasons, I urge all of my colleagues to support the 
nomination of Patricia Smith to be Solicitor of Labor.
  Mr. President, I yield the floor.
  Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ISAKSON. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ISAKSON. Is the current business the nomination of Patricia 
Smith?
  The PRESIDING OFFICER. The Smith nomination is before the Senate.
  Mr. ISAKSON. Mr. President, I reluctantly rise to oppose moving 
forward with the nomination of Patricia Smith. I do not do so easily 
nor happily because I believe the President of the United States has 
the right to make appointments, and I think within reason those 
appointments should be confirmed. The question before the Senate, with 
this nomination, is not whether wage and hour laws should be enforced. 
They should be.
  The question is not whether Ms. Smith has done a good job in New York 
State because Republicans and Democrats said she has. The question is 
whether the Senate will tolerate a nominee intentionally misleading a 
standing committee of this body. My guess is the Democratic majority 
would not have stood for that under the previous administration, and we 
should not today.
  Unfortunately, Ms. Smith has been consistently evasive in response to 
numerous questions from members of the committee, specifically with 
regard to a program called Wage Watch, which deputized private activist 
groups to inspect small businesses to look for and seek to find wage 
and hour law violations.
  For 5 years I have served as the senior Republican on the Employment 
and Workplace Safety Subcommittee that maintains the oversight 
responsibilities over the Department of Labor. I am a vigilant, 
longtime supporter for fair and fully enforced wage-and-hour laws.
  The program in question, Wage Watch, is a program that empowered pro-
union special interests to enforce the myriad of labor laws that cover 
small employers. This approach is simply inappropriate. It can at worst 
be entrapment and at best an improper attempt to enforce the law. One 
can imagine the outcry if the Minutemen who patrolled on their own on 
our border to the south had somehow been deputized by our immigration 
department under the last administration. There would have been 
outrage, and there should have been.
  The ``Wage Watch'' program specifically targeted small- and medium-
size businesses. In discussing the success of the program, Ms. Smith 
bragged that one business was closed as a result of this program, 
telling the New York Times that she had ``made the determination that 
it would be better for workers to lose their jobs than to continue 
working there.''
  Ms. Smith stated the program would not be used for union 
organization; however documents obtained by the HELP Committee from the 
New York State Labor Department and a union newsletter show plans 
specifically to use the program for union organizing throughout New 
York.
  Worse than the program itself was Ms. Smith's refusal to provide the 
committee with accurate and complete information about the program. In 
April of 2009 I wrote to Ms. Smith to ask if she foresaw ``the 
possibility of instituting similar efforts on a national level.'' On 
May 12 she replied in writing that she had ``not considered or 
advocated expanding it across New York to other parts of the country, 
to the Federal level or to other laws.'' However, documents procured by 
the HELP Committee revealed that Ms. Smith wrote in January 2009, 4 
months before the letter I just mentioned, that she would like to 
double the number of organizers involved, ``while laying the foundation 
to expand the program to various parts of Long Island and upstate New 
York.''
  She continued:

       We're creating a movement here, and the more the merrier.

  Clearly she had both considered and advocated expansion of the 
program, thus her statement to me was inaccurate. Her deceit on this 
issue forced

[[Page 925]]

me to write the President on September 10, 2009, and request that Ms. 
Smith withdraw her name. I asked the President that a new nominee, one 
who would both look out for the interests of workers and be honest with 
the Congress, be nominated.
  We now see a similar program like Wage Watch, now called We Can Help, 
developing in the U.S. Department of Labor. In fact, one of the pro-
union special interest groups Ms. Smith deputized to implement her New 
York program, the so-called National Employment Law Project, has been 
chosen by Secretary Solis to assist in the enforcement of Federal 
workplace laws.
  On a personal note, I ran a business for 22 years, and it was a small 
business. I employed golf course superintendent workers, I had 
independent contractors who were real estate agents, I did a lot of 
construction where we were subject to the Americans with Disabilities 
Act. We were subject to all types of labor laws. I vigorously made sure 
that whatever the case might be, we worked hard to see to it we obeyed 
not only the letter of the law but the spirit of the law.
  But I, too, in my experience, from time to time encountered the kind 
of organizations Ms. Smith used in ``Wage Watch.'' They tried to entrap 
me and punish me. I think the proactive enforcement of labor law should 
be vigilantly looking for violations and vigilantly looking for 
correction, not vigilantly looking for someone--as in the case of Ms. 
Smith and the businesses in New York--you can put out of business and 
cost the jobs of many employees of that small business.
  As such, I reluctantly rise today to oppose the nomination of Ms. 
Patricia Smith.
  I yield the floor and suggest the absence of a quorum. I withdraw the 
request for a quorum call.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mrs. MURRAY. Mr. President, I am very pleased to rise in support of 
President Obama's nominee to serve as Solicitor of Labor, Patricia 
Smith. I am very confident that she is the right person for this 
critical job. The work she is going to do to protect our workers is 
more important now than ever before.
  American workers are facing incredible challenges today. They are 
struggling with record unemployment and a devastating economic crisis. 
They need and they deserve strong leaders in the Department of Labor 
who are passionate about public service and committed to fighting for 
them.
  The Department of Labor is charged with a critical mission in our 
Nation's government. Their role is to foster and to promote the welfare 
of America's workers by improving their working conditions, advancing 
their opportunities for profitable employment, protecting their 
retirement and their health care benefits, helping employers find 
workers, and strengthening free collective bargaining. I believe during 
these challenging economic times it is absolutely critical that the 
Department has the leadership it needs to make those goals a reality. 
That is why I was very pleased that President Obama nominated such a 
strong candidate for the position of Solicitor of Labor.
  Patricia Smith has been the Commissioner of the New York State 
Department of Labor since 2007. She is cochair of the New York State's 
Economic Security subcabinet, and she oversees 3,700 employees in 80 
offices, with an annual budget of $4 billion.
  For the previous 20 years, Tricia worked in the Labor Bureau of the 
New York Attorney General's Office, and she served on the Obama 
administration's transition team for the Department of Labor.
  I have received many letters of support for Patricia Smith from 
people who admire her work, from people she has worked with, and from 
workers she has helped. I want to take a moment this afternoon to read 
some excerpts from some of those letters because I believe they do 
demonstrate Patricia's broad support and why she deserves to be 
confirmed by the Senate.
  I have received a letter of support from the CEO of the Plattsburgh, 
NY Chamber of Commerce. He knows Patricia well. He said:

       Patricia Smith has been an outstanding partner as 
     Commissioner of the New York State Labor Department and will 
     be an outstanding solicitor for the U.S. Labor Department. We 
     strongly encourage her earliest possible confirmation by the 
     Senate.

  That was the CEO of the Plattsburgh, NY Chamber of Commerce.
  I also heard from the United States Women's Chamber of Commerce. They 
said:

       After learning of Ms. Smith's qualifications, expertise, 
     and the laws she has worked to uphold, I can clearly see that 
     she is someone who would work with conviction to enforce the 
     laws of the United States of America. Additionally, I am 
     impressed by her out-of-the-box thinking in creating programs 
     that will keep jobs. We especially need these attributes in 
     this time of economic challenge.

  I also received a letter from a group of professors and scholars of 
labor and employment law and labor relations, from over 50 scholars of 
highly respected institutions across the country such as the Georgetown 
University Law Center, Columbia Law, Thomas Jefferson School of Law, 
Yale Law School, and Cornell University School of Industrial and Labor 
Relations. They too urged speedy confirmation, saying that Tricia has:

     consistently demonstrated the highest integrity and 
     commitment to ethical standards. She is experienced, 
     intelligent, thoughtful and energetic. We believe this is 
     exactly what the U.S. Department of Labor needs in a 
     Solicitor. Once confirmed, she will be among the best 
     Solicitors of Labor the Department has known.

  Her support transcends party lines. Former New York Attorney General 
Dennis Vacco, a Republican, had this to say about his former employee:

       Patricia Smith has proven herself as one of the foremost 
     experts in the nation in the realm of labor law, which is why 
     President Obama saw fit to nominate her. . . . She was an 
     asset to the New York Attorney General's Office and I am 
     confident. . . . She will be an asset to the Department of 
     Labor.

  I am here this afternoon as Chair of the Subcommittee on Employment 
and Workplace Safety. I know the challenges American workers are facing 
right now. That is why they deserve a Solicitor of Labor such as Tricia 
Smith who will fight every day to protect them. If she is confirmed as 
the Department's top legal counsel, she will have the profound 
responsibility of enforcing more than 180 Federal laws and managing 
more than 450 attorneys nationwide.
  She will be responsible for defending the Department in litigation as 
well as providing legal advice and guidance on nearly every policy, 
legislative, regulatory, and enforcement initiative of the Department. 
Most importantly, she will be responsible for defending the rights of 
workers when they are not able to speak for themselves.
  Tricia has a big job ahead of her, but we need to act now to allow 
her to get started. We owe it to our country's workers to have a 
confirmed Solicitor of Labor in place. I have had a number of 
conversations with Tricia and I wanted my colleagues to know I am 
confident she is highly qualified and very eager to get to work. I will 
be voting with confidence to confirm Patricia Smith. I urge my 
colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I rise in opposition to the nomination of 
Patricia Smith to serve as the Solicitor of the Labor Department. I 
have got to tell you, this is my 14th year in the Senate, and this is 
the first time I have taken the lead in opposition to a nomination that 
has come through my committee.
  I take this very seriously. When the Founding Fathers drafted our 
Constitution, they were very concerned about concentrating too much 
power in any branch of the government. That is why they carefully 
crafted the system of checks and balances to ensure that each branch of 
the government has a method of checking the work and operations of the 
other.
  Here in the Senate, one of our great checks has been our duty to 
provide our advice and consent to the nomination of the executive 
branch. That is a responsibility I take seriously. That compels us to 
ensure that nominees

[[Page 926]]

who were brought before us are qualified and they have presented their 
credentials to us completely, thoroughly, and honestly.
  Each nominee must pass the vetting process to ensure he or she 
possesses the strength of character and the experience to ensure that 
the public can trust in his or her ability to carry out the duties of 
the office for which they have been nominated. My Senate colleagues 
know I rarely oppose Presidential nominees. I believe the President is 
ultimately responsible for the conduct of his administration and is 
also answerable to the Nation's voters, so he has the right to select 
the members of his team, up to a point. That is where the advice and 
consent comes in.
  Before I elaborate on her nomination, I do want to recognize her 
accomplishments as the Commissioner of Labor in New York and the 
commitment she has shown to serving the people of New York. Her prior 
service would ordinarily have earned her our support and make her a 
bipartisan choice to lead one of our most important offices in the 
Labor Department. Unfortunately, there are other considerations which 
must be taken into account in reviewing her credentials for this 
position, which I believe disqualify her for this position. I have 
released a ranking member's report detailing my concerns with Ms. 
Smith's nomination and posted them on the HELP Committee's Web site. 
Today I will explain the factual inconsistencies between what Ms. Smith 
said before the HELP Committee, for the record, compared to what is 
recorded in the official documents I have received from the State of 
New York.
  The Solicitor of Labor is an important role. He or she is the chief 
legal officer of the U.S. Department of Labor, the third ranking 
official in that Department, General Counsel to the Secretary, and is 
asked to manage one of the largest legal offices in the Federal 
Government, with more than 400 attorneys serving on the Solicitor's 
team.
  Unlike most legal offices in Cabinet agencies, the Solicitor of Labor 
has independent litigating authority from the Department of Justice and 
exercises that authority on behalf of the Department of Labor. The 
Solicitor is also responsible for ensuring that all stakeholders, 
including small businesses, are treated fairly.
  In the course of conducting a thorough review of Ms. Smith's 
background and qualifications, the committee discovered a program in 
New York State called Wage and Hour Watch that she announced in January 
of 2009. The program was established to recruit and train union 
organizers and public interest groups to leaflet businesses with 
compliance literature and to interview employees in an effort to find 
violations of the law that could be used to bring State actions against 
businesses.
  As part of the program, Ms. Smith committed to providing the groups 
with a direct pipeline to senior State enforcement personnel to report 
any violations found. Participants were given official cards by the 
State of New York identifying them and their group as being part of the 
program. Here is a copy of one of the cards. You will find down there 
across from ``date'' that this is for a 2-year period starting on 
February 7, 2009. You got one of those cards after 1 day of training.
  According to the New York State Department of Labor's press release 
on January 26, 2009, Wage and Hour Watch is:

     modeled in part after Neighborhood Watch, [the program] will 
     help promote labor law compliance through formal partnerships 
     between the New York State Labor Department and community 
     groups

and

     provide ordinary people with a formal and systematic role in 
     the fight against wage theft.

  That sounds good, except Neighborhood Watch was set up so that people 
would notify law enforcement authorities of things they thought were 
strange and should be looked at. They did not have permission to go 
into people's homes and investigate unannounced.
  The release also identifies the six groups, two labor unions and four 
community organizing groups, chosen by Ms. Smith for the program and 
explains that they have been active in labor issues and referred cases 
to her agency.
  Upon the conclusion of my remarks, I will ask unanimous consent that 
all documents referenced be made part of the Record.
  In addition to her May 7 confirmation hearing, Ms. Smith also 
participated in a committee staff interview and answered questions for 
the record. In her responses, Ms. Smith suggested the committee seek 
relevant documents from New York, which I did obtain through a Freedom 
of Information request.
  My staff reviewed the several thousand pages of documents eventually 
produced by New York, and we sent Ms. Smith some additional questions 
that she answered in late July, and former Chairman Kennedy sent 
questions that she answered in September.
  My concerns with the nomination relate primarily to four areas where 
Ms. Smith provided at best incomplete and factually inaccurate 
testimony to the HELP Committee, both during her May confirmation 
hearing as well as in the followup questions.
  The first inconsistency I wanted to highlight is with Ms. Smith's 
plan to expand this program. In the May 7 hearing, Ms. Smith was asked 
by Senator Burr about her plans to expand Wage and Hour Watch. She 
responded that there were no such plans.
  His question was: Have you had any discussions relative to your being 
at the Department of Labor that would extend Wage Watch in any fashion 
on a Federal level?
  Ms. Smith said: No, we have not had any discussions of that. I have 
not had any discussions with the Department of Labor in New York about 
whether we would extend it across New York State. Again, it is a pilot 
program which we just did in January. We specifically limited it to a 
small number of groups, and we limited it to a small geographic area. 
We limited it to basically New York City, Long Island, the lower Hudson 
Valley, so we could assess what the successes would be, what the 
problems would be.
  On May 13, 2009, Ms. Smith made a similar statement in writing in 
response to three separate questions from committee members, including 
me. She said:

       This initiative was designed as a local model in a limited 
     geographic area in a state, for a particular issue under a 
     particular statute. It was not designed for other laws or to 
     be used on the Federal level. Until the pilot is completed 
     and evaluated--

  As she said up here--

       I would not advocate expanding it to other areas in New 
     York, to other areas of the country, to the Federal level or 
     to other Federal or state laws.

  That is what she said. The problem here is that many documents, 
including press releases, Ms. Smith's talking points for her own 
speeches, and e-mails she was copied on, show there were plans in place 
to expand the program in virtually every instance, many with June 2009 
deadlines. Documents show that in April 2009, the State was maintaining 
lists of possible new entrants into the program.
  I have a copy up here of groups that were being solicited with the 
Wage Watch expansion, and that is in April of 2009. That is before she 
testified. The State even sent out applications to a number of groups 
to join Wage and Hour Watch during May, when Ms. Smith had just 
testified to the HELP Committee there were no plans to expand the 
program.
  This was the plan to expand the program:

       Dear friend, we are preparing to expand Wage and Hour Watch 
     beyond the original groups in the pilot program. We are 
     writing to you because you have expressed an interest in 
     becoming or joining a Wage and Hour Watch group, as are a 
     number of other organizations and individuals.

  Later on it says:

       In order to allow us to plan for the next stage of the 
     program, please return the completed application form with 
     the reference letter by Monday, June 15.

  The records show that Ms. Smith's department also planned to expand 
the scope of Wage and Hour Watch into investigating occupational safety 
and health matters from day one. That is not the original intent. The 
original intent was a Wage and Hour Watch

[[Page 927]]

group. But we can show where it was intended to investigate 
occupational safety and health matters.
  Of course, originally it was not sold as enforcement of wage, it was 
sold as an educational program. But it changed to enforcement, 
infiltration, and spying, and then added investigating occupational 
safety and health matters.
  In a January 15, 2009 e-mail from Ms. Smith to dozens of staff 
announcing the program, she states:

       After 6 months, once we have had the chance to get the 
     program rolling, we would like to expand to other groups 
     (particularly upstate), including community based 
     organizations, student groups; churches and other faith-based 
     organizations and labor unions. . . . This is an exciting new 
     initiative and one which we could potentially replicate 
     elsewhere in the country.

  In the press release issued to announce the program, Ms. Smith's 
agency states:

       After a six-month pilot period . . . , the Labor Department 
     will begin seeking additional groups who wish to participate 
     statewide. . . .

  The release also directs the public to contact her agency by 
telephone or through a dedicated e-mail address to establish additional 
New York Wage and Hour Watch groups. In an article, the New York Times 
noted the plans for expansion. They said:

       After the first experiment in New York City and on Long 
     Island, the Labor Department will seek additional groups for 
     the program. The groups must be nongovernmental and nonprofit 
     and can include religious organizations, student groups, 
     labor unions, business associations and neighborhood groups.

  Here is a sampling of other program expansion activities before Ms. 
Smith testified on May 2009: A December 1, 2008, e-mail to Ms. Smith 
listed potential expansion groups in upstate New York. A February 2, 
2009, e-mail from Ms. Smith's deputy to two individuals explained how 
to set up a Wage and Hour Watch group. A February 18, 2009, e-mail from 
Ms. Smith's deputy to an outside group noted plans to expand the 
program. A February 23, 2009, e-mail from Ms. Smith's deputy 
memorialized a meeting with the six pilot groups and included a 
paragraph on training in June in both New York City and upstate for 
purposes of expansion. An April 9, 2009, e-mail exchange among Ms. 
Smith's subordinates listed several groups for expansion.
  After Ms. Smith testified and answered written questions in May 
denying expansion plans, her department continued to promote expansion 
and looked to recruit new members. For example, a May 15, 2009, e-mail 
to over 20 outside individuals requested that application forms be 
submitted by June 15; a June 1, 2009, e-mail to outside parties 
announced preparations to expand Wage and Hour Watch; a June 3, 2009, 
e-mail from an outside public interest group offered over 40 
individuals the opportunity to join Wage and Hour Watch; a June 9, 
2009, formal application was submitted to Ms. Smith's department by the 
Laborers International Union of North America's Organizing Fund to 
conduct wage watch activities in the construction industry.
  Contrary to Ms. Smith's responses to written questions that the 
program was only about wage and hour laws, her subordinates expanded 
the program to occupational safety and health enforcement. It says:

       Thank for your offer to insert something about safety and 
     health enforcement in the training the DOL is conducting on 
     Saturday. Unfortunately, given the late notice and training 
     schedules and grant deadlines, we will not be able to put it 
     together by Saturday. However, what we would like to do for 
     you is to announce that we will contact each of the 
     participating groups and offer their organization a training 
     on what safety and health issues they should be looking for 
     while conducting the oversight for wage and hour issues. If 
     that works for you, it would be great for us.

  It wasn't supposed to be oversight. It was supposed to be education 
so that people would know what they were supposed to get and be able to 
take the kinds of actions that individuals could take. But you can see 
it has changed dramatically.
  An e-mail from the New York Committee on Occupational Safety and 
Health, a safety and health public interest group closely tied to 
organized labor, sent to Ms. Smith's deputy on February 6, 2009, notes 
that:

       We will contact each of the participating groups and their 
     organization training on what safety and health issues they 
     should be looking for while conducting the oversight for wage 
     and hour issues.

  In response, Ms. Smith's deputy solicits a list of things to train 
wage and hour watchers to look for, and they respond, as well as 
suggesting that the groups take pictures of working conditions they 
believe unsafe. Sounds like an investigation.
  Ms. Smith's own public pronouncements contradict her testimony to the 
Senate. A May 19, 2009, National Public Radio article quoting Ms. Smith 
and her deputy states:

       New York's Wage Watch is just a few months old, and 
     officials say it is too soon to measure success. But the 
     pilot program is set to expand across the state this summer.

  A set of talking points for Ms. Smith to deliver to an upstate 
coalition group sometime after January 2009 but before she testified at 
her confirmation hearing states that the program ``will'' be expanding 
and solicits volunteers.
  We have it here:

       They are currently expanding with six distinct labor unions 
     and advocacy organizations in New York City and plan to roll 
     it out across the state in the coming months and years. We 
     will be expanding this program and when it does come upstate, 
     we will need the help of many of you to roll it out.

  There also does not appear to be any document that supports Ms. 
Smith's statement that there were no plans for expansion. Indeed, I am 
told the public documents actually contain more than 50 specific 
references to expanding the Wage and Hour Watch Program. All of these 
red tabs are references to expanding the program. All of the red tabs 
talk about expanding the program. It doesn't look incidental.
  Concerns about the factual inconsistencies in Ms. Smith's testimony 
are not solely held by the minority. Former Chairman Kennedy's staff 
submitted questions about the expansion of the program. Ms. Smith 
responded at the time of the confirmation that she had had ``no 
discussions about a potential expansion with anyone, other than 
generally indicating that if it were proved successful, my goal would 
be to expand to it other areas of New York.''
  Despite all of this evidence, Ms. Smith's defenders have claimed that 
she misspoke and that she delegated a small program to a deputy. 
However, the documents show Ms. Smith herself promoting expansion and 
recruiting members in her own speeches and media interactions.
  In addition, I question Ms. Smith's ability to lead the Solicitor's 
Office if her subordinates, including her deputy, were allowed to act 
outside of their authority as suggested by earlier explanations. It is 
difficult to see how it would be appropriate to blame a breakdown 
between Ms. Smith and her deputy for inaccuracies regarding program 
expansion plans. Ms. Smith worked with her deputy for more than 5 
years. When Former Governor Spitzer appointed Ms. Smith to the New York 
Labor Department, news articles noted that she brought her deputy and 
protege with her. I find the explanation even more surprising because 
of Ms. Smith's pedigree. Her prior boss, former attorney general and 
Governor Eliot Spitzer, was known for his aggressive prosecution of 
corporate officials, including some who were accused of not overseeing 
their subordinates properly. I find it unlikely that the State of New 
York would accept ignorance as an excuse if an executive on Wall Street 
tried to use it as a defense. Why should we accept a similar excuse 
now?
  A little more information about her background and the Spitzer 
education program and her participation there. Some have also suggested 
that this program was reasonably beneath Ms. Smith's notice, noting 
that her agency has an $11 billion budget with almost 4,000 staff. If 
confirmed, Ms. Smith would be in charge of legal compliance for a 
department whose budget projects spending 10 times what she oversaw in 
New York, $104.5 billion in 2010. Leaving aside the extensive 
documentation showing she was heavily involved in this program, I ask 
my colleagues, why would we consider expanding her responsibility 
tenfold if she was unable

[[Page 928]]

to oversee her subordinates effectively in New York?
  Former President Harry Truman had a sign on his desk that read ``The 
buck stops here'' to show that responsibility for the conduct of 
subordinates ultimately rested with him. Ms. Smith ought to own up to 
the responsibility that ultimately rests with her.
  With regard to the second inconsistency, Ms. Smith stated that the 
program was developed internally and only then did the New York 
Department of Labor approach or recruit outside groups. However, e-
mails obtained by the committee directly contradict this statement, 
instead showing much of the driving force and even legal research for a 
program model came from organized labor and its allies. Here are a 
couple of examples: an April 16, 2008, e-mail from Mr. Jeff Eichler, 
coordinator for retail organizing projects for the Retail Wholesale and 
Department Store Union, RWDSU, to Ms. Smith's deputy regarding an 
``Enforcers'' program, with four pages of attached research explaining 
potential models for their ``concept of wage and hour enforcers;'' an 
August 18, 2000, e-mail in which Ms. Smith's deputy responds to Mr. 
Eichler's ideas that the State consider allowing participants to 
infiltrate businesses that are part of the program.
  Most disturbing, however, to me about this inconsistency is the fact 
that Ms. Smith admitted in her response to a question that she 
apparently saw the e-mails contradicting her testimony in July but did 
not correct the problem until directly asked in September about this 
issue by majority staff; that is, 2 months later.
  A third inconsistency is that Ms. Smith also characterized Wage and 
Hour Watch as an educational program in testimony. However, the record 
shows it was designed and intended to be enforcement from the very 
beginning, with the union organizers and community organizer 
participants serving as amateur investigators and informants. The very 
first documents discussing the program describe potential participants 
as ``community enforcers.'' I refer to the previously introduced April 
2008 e-mail from union official Mr. Eichler describing this as an 
enforcers program and a November 28, 2008, e-mail from one of Ms. 
Smith's subordinates disseminating draft training material stating:

       The one day session [of training] will not turn enforcers 
     into labor law experts but will assist them in identifying 
     labor law violations and make the referral of greater value. 
     The ``role of community enforcer'' is where we will have to 
     come up with original material . . .

  Notably, Ms. Smith is personally copied on that e-mail.
  Ms. Smith's own words, her subordinates' internal and public 
statements and deliberations, the media, and the groups involved in the 
program all emphasized and portrayed wage and hour watch as an 
enforcement from its very beginning. It was only when she was 
questioned by HELP Committee members about the program that Ms. Smith 
chose to portray the program's substance as educational in nature. 
Quite a difference.
  Finally, Ms. Smith stated that the two unions that were selected for 
the pilot program, United Food and Commercial Workers Local 1500 and 
RWDSU, were told not to use the program for organizing. However, the 
agreement created by Ms. Smith and entered with the unions and special 
interest groups specifically allows the pilot groups to make use of 
information gathered for ``community organizing,'' which Ms. Smith also 
admitted in response to a written request.
  The committee has a copy of the United Food Commercial Workers, UFCW, 
Local 1500 work plan sent to Ms. Smith's deputy which also directly 
contradicts Ms. Smith. The plan states that the union intended to use 
wage and hour in ``all of our organizing campaigns,'' including those 
outside their designated Wage and Hour Watch area. UFCW Local 1500 also 
published plans to target nonunion workplaces as part of the program in 
its publicly available union newsletter.
  It is difficult for me to believe Ms. Smith and her department did 
not know union organizing was intended by those joining the pilot 
program. All the participants and signatories from two labor unions 
involved appear to be employed as full-time organizers. Other 
individuals and groups purely responsible for union organizing also 
applied to join when the program was expanded.
  It is clear that Ms. Smith's testimony and responses to follow-up 
questions are repeatedly contradicted by documents I received from the 
State of New York. It is particularly troubling that inconsistent 
statements to the committee were in each instance an attempt to 
downplay concerns about the Wage and Hour Watch Program raised by 
Republican members. At best, the inconsistencies in her testimony lead 
me to question her ability to interact with Congress in a candid manner 
and manage the enforcement of labor laws by the Office of Solicitor in 
an evenhanded and fair manner.
  I have tried for months to resolve these concerns. In August, I asked 
President Obama to withdraw Ms. Smith's nomination and offered my 
assistance in ensuring a replacement would be confirmed quickly. I also 
joined all my nine Republican colleagues on the HELP Committee in 
urging Chairman Harkin to refrain from approving this nominee in 
committee and made the same offer to him of assistance in ensuring a 
qualified replacement being given swift review and confirmation. I 
mentioned I joined all nine. As to a couple people on there, I do not 
know that they have ever opposed a Presidential appointment.
  Because the President and the majority did not consider it a problem 
that Ms. Smith provided factually inconsistent information to the 
Senate, I am forced to insist on a full debate on her nomination. 
Giving my consent to a Presidential nominee is not something I take 
lightly, even with the benefit of the doubt I have always given to the 
candidates sent over to us by the White House. However, the integrity 
of the Senate committee process and the responsibility of advice and 
consent demands honest and accurate testimony when the witnesses come 
before us.
  For that reason, I have lost confidence in Ms. Smith's ability to 
manage the Solicitor's office. I urge my colleagues to oppose this 
nomination, and I ask unanimous consent that documents referred to in 
my speech be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Labor Department Initiative Empowers Ordinary People to Join the Fight 
                           Against Wage Theft


 New York Wage Watch, the Only One of its Kind in the Nation, to Roll 
                  Out in New York City and Long Island

       Albany, NY (January 26, 2009).--At a press conference in 
     New York City, State Labor Commissioner M. Patricia Smith 
     today announced the formation of New York Wage Watch, a new 
     tool in the fight against labor law violations in New York 
     State. New York Wage Watch will focus on a variety of illegal 
     practices, jointly referred to as wage theft, including 
     payment of subminimum wages; nonpayment of wages; failure to 
     pay overtime; tip stealing; and other such violations.
       Modeled in part after the Neighborhood Watch program, New 
     York Wage Watch will help promote labor law compliance 
     through formal partnerships between the New York State Labor 
     Department and community groups. The effort will start with a 
     pilot program with several groups in New York City and Long 
     Island for the first six months, and then be opened up to 
     interested groups from throughout the state.
       The first model of its kind, New York Wage Watch will 
     provide ordinary people with a formal and systematic role in 
     the fight against wage theft. Participating groups will 
     select a geographic zone for their efforts, and within that 
     zone, they will participate in a range of activities aimed at 
     improving labor law compliance, including holding know-your-
     rights training; providing employers with information about 
     compliance; and distributing literature to workers in 
     supermarkets, laundromats, nail salons, and other community 
     settings. When they encounter workers facing serious 
     violations of the law or employers with detailed questions 
     about compliance, New York Wage Watch groups will have a 
     designated point person for referrals in the Labor 
     Department's Division of Labor Standards, which enforces wage 
     and hour laws. The Department will provide training and 
     materials to participating groups.
       ``Just as no one wants to live in an area riddled with 
     crime, nobody wants to live in a

[[Page 929]]

     neighborhood where workers are paid sweatshop wages,'' said 
     Commissioner Smith. ``New York Wage Watch will increase labor 
     law compliance by giving regular people a formal role in 
     creating lawful workplaces statewide, and thereby improving 
     the quality of life in their communities. It will also help 
     law-abiding employers, who struggle to compete with 
     businesses that undercut them by violating the law.''
       In recent years, the Labor Department has uncovered 
     widespread labor law violations in a broad range of 
     industries and locations throughout the state. An industry-
     based investigation of car washes in 2008 revealed that over 
     78% of New York City car washes inspected were not paying 
     minimum wage or overtime. Nearly half of 303 employers 
     visited on joint enforcement sweeps in Buffalo, Albany, the 
     Bronx, and Queens required followup for wage and hour 
     violations. The Labor Department found serious violations at 
     ordinary stores, restaurants, and offices statewide, as well 
     as at state icons like the Saratoga Race Course, where over a 
     hundred backstretch workers interviewed reported a pattern of 
     illegal wages, and at the Erie County Fair, where bathroom 
     attendants were paid no wages and were even forced to give 
     half of their tips to a subcontractor.
       ``These violations are far more common than many people 
     realize, but they plague our communities and diminish the 
     quality of life for New York's workers,'' said Commissioner 
     Smith. ``We are enforcing the law as creatively and 
     aggressively as we can, but the government cannot do it 
     alone. We need concerned members of the public to help raise 
     awareness about wage theft, to educate workers and employers 
     about the law, and to help serve as a bridge between our 
     agency and workers who might be unlikely to come to us on 
     their own.''
       Over the past few years, the Department of Labor has forged 
     informal partnerships with advocacy groups and grassroots 
     organizations on behalf of workers. A more proactive approach 
     by the Division of Labor Standards, combined with efforts of 
     the newly created Bureau of Immigrant Workers' Rights, has 
     resulted in more sustained and effective partnering. One such 
     relationship, with the Retail, Wholesale and Department Store 
     Union (RWDSU), and Make the Road New York, led the Department 
     to investigate a commercial strip in Bushwick, Brooklyn. 
     During the course of this investigation, the Labor Department 
     found $350,000 in wage underpayments were owed to 60 workers. 
     In the ensuing weeks and months, the RWDSU and Make the Road 
     New York maintained a presence in the area, talking with 
     businesses and workers about labor law. A labor law seminar 
     was also conducted for employers in the area. Labor law 
     compliance appears to have increased in Bushwick as a result 
     of this joint effort. New York Wage Watch aims to replicate 
     the enhanced effectiveness resulting from the coordination of 
     law enforcement efforts with ongoing presence and involvement 
     of community members.
       This pilot program will begin with a small number of groups 
     who are already working on labor issues. Each group has 
     referred a number of cases to the Department of Labor in 
     recent years. The groups are Centro del lnmigrante in Staten 
     Island; Chinese Staff and Workers' Association; Retail, 
     Wholesale and Department Store Union (RWDSU); Make the Road 
     New York; United Food and Commercial Workers (UFCW) Local 
     1500; and The Workplace Project in Long Island.
       Next month, each of these groups will receive language-
     specific training from Department of Labor staff. The first 
     trainings will be held on Saturday February 7 at the Murphy 
     Center for Labor Studies in Manhattan, in English, Spanish 
     and Chinese, and will cover basic labor laws affecting 
     workers such as minimum wage, overtime and meal periods. The 
     Department of Labor will also be providing multilingual 
     outreach materials to each Wage Watch group to hand out to 
     workers and businesses.
       After a six-month pilot period with these groups, the Labor 
     Department will begin seeking additional groups who wish to 
     participate statewide. Each group should be a non-
     governmental, non-profit entity, such as a community group, 
     religious organization, student group, labor union, business 
     association, or neighborhood association. Groups must have at 
     least six members and must select a geographic region to 
     focus upon--this may be as small as several blocks in an 
     urban setting or as large as several counties elsewhere. 
     Groups need not have prior labor-related experience.
       Stuart Appelbaum, President of the 100,000 member Retail, 
     Wholesale and Department Store Union said, ``New York Wage 
     Watch is labor law enforcement at the purest, most grassroots 
     level. This program will allow unions, community groups and 
     churches to engage in the fight against the exploitation of 
     workers in our neighborhoods. It is critical that employers 
     do not take advantage of workers and their families during 
     these difficult economic times.''
       Amy Carroll, Supervising Attorney for Workplace Rights at 
     Make the Road New York said, ``Wage theft is rampant in many 
     low-wage industries and immigrant neighborhoods, in large 
     part because workers are afraid to come forward and file a 
     complaint when their rights are violated. New York Wage watch 
     allows the State Department of Labor to partner with 
     organizations, like Make the Road New York, that already have 
     workers' trust. In our experience, community monitoring of 
     employer conduct is critical to ensure that employers caught 
     violating the law today actually pay their workers correctly 
     tomorrow. Employers will be dramatically less likely to 
     violate wage and hour law when they know that trained 
     community members are on the ground as the eyes and ears of 
     the DOL's wage enforcement units.''
       Bruce W. Both, President of United Food and Commercial 
     Workers Union Local 1500, New York State's Largest Grocery 
     Workers Union said, ``UFCW Local 1500 commends the New York 
     State Department of Labor for its innovative approach to 
     promote labor law compliance among New York State's 
     employers. UFCW Local 1500 is excited to participate in the 
     Wage Watch program, as we see it as both a creative yet 
     fiscally efficient way to educate workers and employers about 
     their labor rights and obligations during these difficult 
     economic times. Our long history of working with the DOL, 
     Commissioner Patricia Smith and her dedicated staff has 
     taught us that grocery workers, especially Gourmet Grocery 
     Workers, will greatly benefit from such a program. Workers in 
     this industry have high rates of not being paid according to 
     New York State Wage and Hour laws. UFCW Local 1500 looks 
     forward to making Wage Watch a successful collaborative 
     effort.''
       Gonzalo Mercado, Director, El Centro del Inmigrante said, 
     ``El Centro del Inmigrante applauds the New York State 
     Department of Labor for the creation of the Wage Watch 
     Program. Thousands of workers every year are victims of wage 
     and hour violations and this initiative is a great tool to 
     help enforce the labor laws that most of the time are not 
     known by the workers nor by their employers. Immigrant 
     workers are the most exploited and most vulnerable and we 
     look forward to collaborating in this endeavor.''
       Nadia Marin-Molina, Executive Director of the Workplace 
     Project said, ``During this time of economic crisis, it is 
     more important than ever that the wages of workers, immigrant 
     and non-immigrant alike, are protected, so that workers can 
     pay rent and feed their families. On Long Island, the 
     Workplace Project has shown that, with education, organizing, 
     and support, community members--day laborers, domestic 
     workers, and factory workers, for example--are willing to 
     stand up and fight exploitation on the job at great personal 
     risk. The Wage Watch program will now allow us to link a 
     trained community team to work closely with the New York 
     State Department of Labor, so that employers will not be able 
     to abuse workers with impunity. The Workplace Project is 
     excited to participate in this innovative partnership with 
     the DOL and looks forward to engaging many more community 
     members to stop wage theft through this collaboration.''
       To find out what you can do to establish a New York Wage 
     Watch group in your community, send an email to 
     NewYorkWageW[email protected] or call 1-888-52-LABOR.
                                  ____


        New York State Department of Labor--Wage and Hour Watch

       Dear Friend: We are preparing to expand Wage and Hour Watch 
     beyond the original groups in the Pilot Program. We are 
     writing to you because you have expressed interest in 
     becoming or joining a Wage and Hour Watch group, as have a 
     number of other organizations and individuals.
       We have not yet determined the precise extent or timetable 
     of the initial expansion of the program, and we want to be 
     sure to expand in a planned and methodical way which will 
     ensure the continued quality of the program.
       However, regardless of the precise plan we develop for 
     expansion, our first step is to gauge the level and location 
     of interest throughout the state. This will allow us to 
     determine training needs and a realistic schedule for 
     expansion. Therefor, we have developed the attached 
     Application form for groups who are interested in becoming 
     Wage and Hour Watch participants.
       For efficiency and quality control, all groups who wish to 
     become a Wage and Hour Watch group must have at least six 
     members, and must have a host or sponsor organization--either 
     a nonprofit organization, an educational institution, a trade 
     association, a labor union, or a religious/faith-based 
     organization.
       If you are an individual without such an affiliation, 
     please complete the form to the best of your ability and 
     return it to us. If there is a Wage and Hour Watch group 
     forming in your region, we will try to connect you to the 
     group.
       Please note that the application form asks for a reference 
     letter. This reference letter would be for the lead person, 
     or contact person, for the proposed Wage and Hour Watch 
     group.
       In order to allow us to plan for the next stage of the 
     program, please return the completed application form with 
     reference letter by Monday, June 15, 2009.
       If you have any questions, please contact email 
     [email protected]

[[Page 930]]

       Thank you for your interest and we look forward to hearing 
     back from you.

                                               Terri Gerstein,

            Deputy Commissioner for Worker Protection & Immigrant 
                                                          Service.

[[Page 931]]

     
     


[[Page 932]]

     From: Gerstein, Terri (LABOR)
     Sent: Wednesday, April 16, 2008 4:49 PM
     To: Boylan, Lorelei (LABOR)
     Subject: FW: Enforcers
     Attachments: Auxiliary Police Fact Sheet; Volunteer Ambulance 
         Corps Fact Sheet; Neighborhood Watch Fact Sheet
       FYI. I told Jeff I will be on vacation and won't get back 
     to him until I get back. (I think I mentioned to you I'm 
     going away from tomorrow through Fri apr 25 and then I will 
     see you at somos el futuro). I also told Jeff I would forward 
     you these so you can read and think about them in the 
     meantime.
     Terri Gerstein,
       Deputy Commissioner of Labor for Wage Protection and 
     Immigrant Services, New York State Department of Labor.
                                  ____

     From: Jeff Eichler
     Sent: Wednesday, April 16, 2008 4:13 PM
     To: Gerstein, Terri (LABOR)
     Subject: Enforcers
       Hi Terri: I hope all is well.
       Attached are short fact sheets prepared by Lindsey 
     exploring the Auxiliary Police and Ambulance Volunteers. 
     Since both of these voluntary organizations are governed by 
     statutory authority I don't think they will provide a useful 
     example for our concept of voluntary wage and hour enforcers. 
     Nonetheless, you should take a look at Lindsey's work and see 
     if anything appears useful. I do believe that the 
     neighborhood watch concept might be the appropriate model. 
     Lindsey also has short overview of the neighborhood watch and 
     it too is attached. Once you have reviewed these documents 
     lets arrange a time to talk.
     Jeff.
                                  ____

     From: Boylan, Lorelei (LABOR)
     Sent: Friday, November 28, 2008 11:45 AM
     To: Raj Nayak; Gerstein, Terri (LABOR); Gardner, Colleen C 
         (LABOR); Trivino, Geovanny (LABOR); Amy Carroll; Deb Axt
     Cc: Smith, Patricia (LABOR)
     Subject: RE: Wage Watch
       Here is a proposed outline for the one-day training. I 
     figured Amy and I could use input from the rest of the group 
     on whether we should be covering other topics before we delve 
     into it.
       The one day session will not turn the enforcers into labor 
     law experts but will assist them in identifying labor law 
     violations and make the referral of greater value. The ``role 
     of the community enforcer'' is where we will have to come up 
     with original material but the other sections we have plenty 
     of usable material at the DoL.
     Lorelei Boylan,
       Director of Strategic Enforcement, Labor Standards 
     Division, New York State Department of Labor.
                                  ____

     To: Terri Gerstein/LoreleiBoylan
     From: Aly Waddy
     Re: Wage & Hour Watch Program Work Plans


                               Structure

       Aly Waddy
       Responsible for all communications to DOL. Will prepare all 
     necessary reports: Participate in meeting will DOL.
       Alex Lazaro
       Will supervise field operation. Participate in meetings 
     with DOL etc.


                       Full List of Participants

       1. Aly Waddy
       2. Alex Lazaro
       3. Diana Robinson
       4. Brendan Sexton
       5. Vilmarie Solivan
       6. Rafael Hernadez
       7. Jose Rosendo


                              Jurisdiction

       Gourmet, Grocery and Retail sector in 5 Boroughs. This will 
     be the focus.
       We will however utilize the program in all of our 
     Organizing Campaigns. This may at times be outside of the 
     five boroughs.


                               Activities

       We will introduce Wage & Hour Watch Campaign into all our 
     Organizing Efforts.
       We will have dedicate 4 days per quarter to Wage & Hour.
       We will introduce program at our Union membership meetings.

  Mr. ENZI. I yield the floor.
  Mr. HARKIN. I 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. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I listened very carefully to the statement 
made by my friend and ranking member, Senator Enzi. Many of the points 
raised by the Senator have been gone over before by the committee. 
These were things we looked into. So I think I would like to respond a 
little bit, almost point by point, to some of those concerns that were 
raised in the statement made by Senator Enzi.
  But before I do that, I, again, wish to make one thing very clear. We 
are talking about something--this Wage Watch. Is that what it is 
called? Wage Watch. We are talking about something that is perfectly 
legal. Almost, listening to my friend's comments on it, you would think 
there was some subterfuge going on. This was perfectly open and above 
board and everything. No one is alleging anything was ever done 
illegally. No person--none of the Wage Watch people--did anything 
illegal. In fact, all the things they were engaged in--and I say 
``were''; I use the past tense because it was a pilot program and it 
has now ended and they are now assessing it--but all the things they 
were engaged in, they can engage in today. Anyone can. I can. You can. 
Staff can. Anybody can do this. It is not illegal. It is perfectly 
legal. So let's keep in mind what we are talking about is a perfectly 
legal, open, transparent pilot project that was started by the New York 
Department of Labor.
  Again, as I indicated earlier with my charts, why were they doing 
this? Because so many people had been found who were not being paid the 
minimum wage; they were working overtime and not being paid overtime. A 
lot of times these low-income workers--many of whom are recent 
immigrants to this country--do not know what their rights are. They are 
fearful of losing their job. It is the only thing they have to keep 
their families together, and if the employer decides to shave a little 
bit off their overtime, what are they going to do? They have no one to 
go to.
  So that is why I pointed out in my charts how much money and how many 
times Commissioner Smith had gone after bad actors, bad employers, to 
get money back for workers, for their families, for their retirement 
systems they were cheated out of.
  As she said to me, the good employers--the good employers--the 
businesspeople in New York wanted her to do this because the bad actors 
who were shaving, who were not paying the minimum wage, who were not 
paying overtime, were taking unfair advantage of the honest employers 
that were meeting their legal obligations. That is why it is no 
surprise to me we have all these letters of support for Ms. Smith from 
the business community. I already mentioned the Business Council of New 
York, the Manufacturers Association of Central New York, the entire New 
York congressional delegation--all these writing letters in support of 
her, talking about how fair she is and how she would listen and work 
things out.
  When she started--she did not start it--but when the department 
started this Wage Watch, that was the intent of it. It was information. 
My friend says they started out from the beginning for enforcement. 
Well, sure, what do you think? Do you think someone is going to find 
out someone is not paying someone the minimum wage, and they are not 
going to tell anybody, they are not going to tell the Department of 
Labor, they are just going to say: Well, that is just the way it is. Of 
course, the end result is to enforce the law, to let people know their 
legal rights so that law can be enforced. Of course, that is the end 
result of it.
  But the implementation of that was an informational program, to get 
information and guidance out to people, again, who--we are not talking 
about Members of Congress. We are not talking about our educated staff 
who have been to the best schools and have all these fancy degrees. We 
are not talking about accountants. We are not talking about people 
working on hedge funds in New York or on Wall Street. We are talking 
about people working in Queens at the minimum wage in the garment 
industry--janitors, homemakers, others out there who are working in 
food service who are at the minimum wage or slightly above it. So we 
are talking about people who do not have all that knowledge base we 
kind of assume workers would have. I wish to make that point clear 
before I start to talk about some of the points that were made.

[[Page 933]]

  Again, a lot has been made about the plans for expansion and about 
Senator Burr's question. I looked at Senator Burr's question. I looked 
at her response. I was there that day. It did not register. But then 
later on we began to look at this when issues were raised by my 
Republican colleagues.
  Well, quite frankly, the e-mails that were shown by my colleague were 
not e-mails from Patricia Smith. They were e-mails from Terri Gerstein, 
not Patricia Smith. Quite frankly, to expand it to include occupational 
safety and health training, there was an e-mail to Terri Gerstein from 
Joel Shufro. Well, much was made of this. Again, I will respond in two 
ways. Much was made of expanding it to occupational safety and health 
issues training. My response is, yes; so? Shouldn't people also know 
not only what their rights are in terms of what their wages are, but 
shouldn't they also have the right to know whether something is unsafe, 
whether their health is being endangered? It would seem to me this also 
has to get out there, to know what their rights are to protect their 
health and their safety. I don't have any problem with that, that they 
should have that kind of training also, as well as to be on the lookout 
for that.
  Sure, if they are working in hazardous conditions and with hazardous 
materials that can affect their lives and their livelihood and their 
future health, somebody ought to know about it. Someone should know 
about it.
  On the expansion of the program beyond just the wage-and-hour 
expansion in the State, it looks as though the deputies may have gotten 
a little ahead of her when they were doing this. Again, keep in mind, I 
know the buck stops here. I saw that chart. The buck always stops here. 
We are responsible.
  As I pointed out, Ms. Smith was running an agency with an $11 billion 
budget--$11 billion, 4,000 employees. This was a $6,000 pilot project, 
hardly the meat and potatoes of what she was doing in her job every 
day. Plus, she was focusing on one of the worst economic crises New 
York and this country has faced. So keep that in mind.
  Ms. Smith was clear in her response to us about the fact that she had 
no discussions about a potential expansion with anyone other than 
generally indicating that:

       . . . if it proved successful, my goal would be to expand 
     it to other areas of New York State. At that time, I had not 
     authorized my staff to proceed with a statewide expansion of 
     the program, nor had I discussed with them any steps that 
     were preliminary to a possible expansion. My first--

  And I am reading from her response to our written questions. Ms. 
Smith says:

       My first substantive discussion about the steps needed to 
     be taken to evaluate any potential expansion of Wage and Hour 
     Watch occurred in late May 2009 with my Executive Deputy 
     Commissioner. . . . At that time he informed me that the 
     Deputy Commissioner for Wage Protection and Immigrant Affairs 
     had recently discussed with him what to do about the 
     additional requests to join the program to which we had never 
     responded. He told me that he had authorized her sometime in 
     mid May to send out e-mails to groups in New York that had 
     expressed interest in the program in case we judged the pilot 
     a success. He had not personally seen the e-mail. Therefore, 
     within days, I asked to review the text of the e-mail the 
     Deputy Commissioner for Wage Protection and Immigrant Affairs 
     was using. I told her that it could give the impression that 
     a decision to expand the pilot had been made, which it had 
     not, and made appropriate changes to the text. I directed her 
     to use my corrected version in all future e-mails.

  So, again, rather than saying this has to be expanded, she said let's 
look at the results and see what the results are, and she took it upon 
herself to correct those mailings that went out from her office.
  The other thing that was said had to do with unions and that she 
misled the committee. There is a claim in response to a written 
question that she instructed unions participating in the Wage and Hour 
Watch Program not to use their status as wage watch groups as a union 
organizing tool. In fact, the New York Department of Labor tacitly 
condoned this practice.
  Those are the charges that were made.
  Well, first of all, again, there is nothing improper or unlawful 
about unions using their Wage and Hour Watch activities as part of 
organizing campaigns. There is nothing illegal about that. I would like 
to have someone show me where that would be illegal. There is nothing 
illegal about that. However, Ms. Smith, in order to be fair, took all 
appropriate steps to discourage that activity because business groups 
had raised concerns about this issue with her. She responded 
immediately, specifically prohibiting unions from distributing their 
own organizing literature while they were performing wage and hourly 
watch activities.
  This was a written question to her:

       Were you personally aware of any instance when a labor 
     organization participating in the Wage and Hour Watch program 
     engaged in labor activities? If so, how did you respond? If 
     not, how would you have responded to such activity?

  Here is what Ms. Smith responded in writing:

       I am not personally aware of any instance when a labor 
     organization participating in the Wage and Hour pilot program 
     engaged in organizing functions while performing Wage and 
     Hour Watch functions. If I had been aware of such behavior I 
     would have decided to terminate them from the pilot.

  Here is another question:

       In your response to a question submitted by Senator Enzi on 
     May 12, 2009, you describe a March 2009 meeting with numerous 
     retail trade organizations where these organizations 
     requested that groups participating in the Wage and Hour 
     Watch pilot program be prohibited from giving out information 
     about their group while doing Wage and Hour Watch activities. 
     How did you respond to that request, and what actions did you 
     take to follow up on that request?

  This has to do with labor unions too.

       I told the trade associations that their request was 
     reasonable, that I would make sure the participating groups 
     would be specifically instructed to refrain from giving out 
     their own materials while doing Wage and Hour Watch 
     activities. I also told the trade associations that their 
     request would be explicitly incorporated in any future 
     written agreements. Within a week of that meeting, I 
     instructed Lorelei Boylan, Director of Strategic Enforcement 
     . . . to call each of the groups participating in the Wage 
     and Hour Watch pilot and give them that instruction. Within a 
     week after our conversation, she reported back to me that she 
     had contacted each of the groups, explained the specific 
     prohibition, and that they agreed to it. Since then, I have, 
     from time to time, asked my staff if they were aware of any 
     problems with the groups' complying with that particular 
     instruction, and they have reported no problems.

  Again, here is her e-mail. Some talked about how these people would 
go in and use authority to do something. It was compared to the 
Neighborhood Watch program. As my friend said, in the Neighborhood 
Watch program, people can't go into people's homes. Well, under this 
program, the Wage and Hour Watch Program, they could not go into a 
private employer's business either. They couldn't go into somebody's 
office, somebody's business. They could go into a store where the 
general public could go, yes. They could go into Wal-Mart or they could 
go into a retail establishment where the public generally could go, but 
they could not go into, let's say, a manufacturing concern where the 
public was not allowed to go, the same as Neighborhood Watch. You 
couldn't go into somebody's home. You could sure go into a community 
center. You could go into a shopping center. You could do a lot of 
things. You could go to the public park as Neighborhood Watch.
  But here is a letter from Patricia Smith dated January 15, 2009, long 
before any of this stuff ever came out:

       Dear Labor Standards Staff:
       I want to let you know about a new pilot program we will be 
     announcing on Friday called ``Wage Watch.'' The goal of the 
     program, as with all of our enforcement efforts, is labor law 
     compliance throughout the state.

  Complying with the law. Anybody opposed to that? But here is the 
important paragraph:

       Please note that the groups and individuals who participate 
     as Wage Watchers will not be agents, employees, or official 
     representatives of the Labor Department. They are not 
     replacing staff and they are not going to be conducting 
     investigations of any kind. Their role is limited to doing 
     outreach and community education, and to reporting any 
     violations they encounter to the Division.

  I don't think you can get much clearer than that. That went out on 
January 15.

[[Page 934]]

  There was one other thing I guess I have to respond to, and that is 
that there is some confusion as to whether the idea for this came about 
internally or whether it was external. Again, I don't understand what 
the big problem is. Who cares where it came from? Again, it is a legal 
operation, ethical, aboveboard, not nefarious in any way.
  There is some problem about whether it came from internally or 
outside. When Patricia Smith testified at the hearing, she was being 
accused of misleading us because she said it was ``an internally 
crafted group'' and that ``it was only after we sat down and crafted it 
ourselves that we reached out to groups to see if they would be 
interested.''
  Well, I have met with Ms. Smith. We have talked about this. We went 
through all the records. At that point in time when she testified that 
was to the best of her knowledge, that it had come from the people in 
her department and that they had suggested this and then they were 
going to go to outside groups to get people involved.
  What she didn't know is that some people on her staff had been 
meeting with outside groups in terms of coming up with this kind of an 
approach. Then she corrected it later on when she said: Yes, I found 
out later that some people on my staff had done this.
  But, again, let's keep in mind there was nothing inappropriate about 
this. There was nothing inappropriate about her staff meeting with 
outside groups to talk about this. Absolutely nothing. She just 
happened to make a mistake in front of the committee in saying they 
hadn't gone to outside groups before it came up, and actually it had 
been discussed with outside groups with her staff.
  What is the big deal? Is someone saying there is something illegal? 
No, there is nothing illegal about that. Again, there is nothing 
inappropriate about it. It was simply a mistake she made in her 
testimony because she didn't have full knowledge of what her staff had 
been doing at that point in time in that Wage and Hour Watch.
  Lastly, I know it will be said: Can she manage a large organization 
if she doesn't know about what one staff person may have done in terms 
of talking to an outside group? Well, as I point out, she ran an $11 
billion agency, 4,000 employees. Her focus more than anything--and I 
have talked to her about this, and I talked earlier about it with the 
charts I had--was going after these employers who were cheating people 
out of their minimum wage, taking away retirement benefits, working 
them overtime and not paying them overtime. She was getting money back 
for these families. This was a $6,000 pilot project in an $11 billion 
agency. So she may have missed a little bit here or missed something 
there or missed one person talking to somebody.
  I would be more upset about it if it were illegal activity. If, in 
fact, these things had been going on and they were not legal, they were 
not ethical, yes, then I would say the buck stops here, you bet. But 
that is not the case. This is perfectly legal, perfectly ethical.
  So I can understand if something went on in that agency in a small 
pilot project and she didn't know every single thing about it and who 
talked to whom and when something occurred. That is the essence, as I 
understand it, of the arguments on the other side. That seems to be the 
essence of it.
  I think it is making a mountain out of a molehill. She is perfectly 
qualified to be the Solicitor, and I hope the vote coming up shortly 
will confirm that.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, in light of the 20 minutes that we just 
heard in defense, and he had spoken previously before I spoke, I ask 
unanimous consent for an additional 5 minutes to briefly comment.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. ENZI. Mr. President, there are so many places that a person needs 
to go if Ms. Smith does make it through the cloture vote. Of course, I 
have a lot more documents and information I will be sharing with 
people. I don't even know where to begin on the rebuttal to what has 
been said.
  Internally crafted, no. It was brought to them by the unions. We can 
show where that came from. The Senator from Iowa mentioned that she met 
with small businesses in March. The program started in January with no 
input from small business. This is going to affect small business. They 
should have had the opportunity to comment on how the program would 
work, because there are a lot of privacy and other related issues in 
this.
  When somebody comes to you with a State card from the Department of 
Labor of New York, they could probably go anywhere in the business they 
want to. They have only had 1 day of training in order to be able to do 
this. Does that make them an expert in OSHA and in wage and hour law? I 
don't think so. But there are safety and security and invasion of 
privacy issues that were ignored, or it was consciously decided they 
weren't important.
  We asked about background checks on those who were trained and gave 
the State identification cards to:

       There is no formal vetting process for the New York 
     Department of Labor to partner with an entity. Instead, the 
     Department relies primarily on prior experience working with 
     the group. For the Wage and Hour Watch pilot, the Department 
     selected the groups that were asked to join based on prior 
     experience working with them on a more informal basis.

  They did consider the possibility of a background check on the groups 
but ultimately rejected that idea after inquiring as to whether 
Neighborhood Watch groups are subjected to backgrounds checks. The 
Department was informed that the groups participating in this more 
sensitive crime prevention partnership were not subject to a background 
check.
  In her Senate response, Ms. Smith in part explains the lack of a 
background check because the program is modeled on the National Sheriff 
Association's Neighborhood Watch program. Notably, however, unlike Wage 
and Hour Watch, Neighborhood Watch is purely an observe and report 
program. Participants do not investigate crimes and are strongly 
cautioned against doing so, nor are they allowed to enter private 
property or businesses in conducting their operations. Calling the 
police about suspicious activity in a public area is significantly 
different than investigating the wages and hours of individual 
employees and recording their personal contact information.
  This decision to allow those who may have criminal records--no 
backgrounds check--or may not be legal residents--no background check--
in the United States to be trained and gather information under cover 
of New York State authority is also compounded by the types of 
information being gathered. That is a little different than 
Neighborhood Watch too. Ms. Smith authorized the training provided to 
participants that directed them to gather the personal telephone 
number, vehicle license plate, and home address of business owners they 
visited. As noted above, the State also allowed that information to be 
kept and used for other purposes outside of Wage and Hour Watch.
  I have more things I could go into. For instance, in a memorandum to 
Ms. Smith in January 2009, NYDOL officials point out that all pilot 
groups would be taught ``guidance on what level of information is 
needed for `anonymous' Wage and Hour Watch tip.'' They wouldn't be able 
to tell if an anonymous tip was inaccurate. In other words, it could be 
used for harassment.
  There are a lot of problems with the program. I will be going into 
them tomorrow if cloture is successful.
  I yield the floor.
  Mr. LEAHY. Mr. President, today, the Senate will try to end yet 
another Republican filibuster and invoke cloture on the nomination of 
Patricia Smith to be Solicitor General for the Department of Labor. 
This is the 15th filibuster against President Obama's nominees.
  Commissioner Smith is a well-qualified nominee who has decades of 
experience working on labor issues, and a strong record as labor 
commissioner for the State of New York. The Senate Committee on Health, 
Education, Labor and Pensions held a hearing on

[[Page 935]]

her nomination in May and reported it favorably to the Senate last 
October. Commissioner Smith should have been confirmed long ago. 
However, as has become all too common in this Congress, the Republican 
minority continues to block the Senate from even considering her 
nomination and giving her the up or down vote they not long ago 
insisted was the constitutional right of every nominee. Instead, the 
Senate is faced with another Republican filibuster.
  Nothing I have seen suggests there is a reason to block Commissioner 
Smith's nomination from receiving Senate consideration. If some 
Senators oppose the strong enforcement of laws to protect American 
workers, they can vote against the nomination.
  Some seek to justify this delay by creating controversy over ``Wage 
Watch,'' a pilot program started by the New York Department of Labor 
under Commissioner Smith designed to encourage Department employees to 
report labor law violations. This seems to be a controversy generated 
by those who disagree with the program. What is so troubling about this 
filibuster is how difficult it has become to determine which 
nominations Senate Republicans are merely blocking as part of their 
political strategy of obstruction and delay of President Obama's 
nominees.
  If cloture is invoked and we are finally able to consider the Smith 
nomination, we will then have the opportunity to end the filibuster of 
another nomination, that of Martha Johnson to head the General Services 
Administration, GSA. Her nomination has been stalled on the Senate 
Executive Calendar since June 8 due to the opposition of a single 
Republican Senator over a dispute with GSA about plans for a Federal 
building in his home State. The will of the Senate and the needs of the 
American people are held hostage by a single Senator.
  This should not be the way the Senate acts. Last week in his State of 
the Union Message, President Obama told Congress and the American 
people: ``The confirmation of well-qualified public servants shouldn't 
be held hostage to the pet projects or grudges of a few individual 
senators.''
  Unfortunately, we have seen the repeated use of filibusters, and 
delay and obstruction have become the new norm for the Republican 
minority. We have seen unprecedented obstruction by Senate Republicans 
on issue after issue--over 100 filibusters last year alone, which has 
affected 70 percent of all Senate action. Instead of time agreements 
and the will of the majority, the Senate is faced with a requirement to 
find 60 Senators to overcome a filibuster on issue after issue. Those 
who just a short time ago said that a majority vote is all that should 
be needed to confirm a nomination, and that filibusters of nominations 
are unconstitutional, have reversed themselves and now employ any 
delaying tactic they can.
  The Republican practice of making supermajorities the new standard to 
proceed to consider many noncontroversial and well-qualified 
nominations for important posts in the executive branch, and to fill 
vacancies on the Federal courts, has had a devastating effect. As a 
result of this Republican strategy, there are currently 75 nominations 
pending on the Senate's Executive Calendar for important positions 
throughout the executive branch and the judiciary, all but nine of them 
pending since last year.
  There are 19 judicial and executive nominations pending on the Senate 
Executive Calendar that were reported favorably by the Senate Judiciary 
Committee, all of them reported with bipartisan support. In fact, 16 of 
the nominations reported by the committee were reported without a 
single dissenting vote. These nominations are not controversial. They 
should be easy to consider and confirm.
  Five more nominations reported by the committee were pending on the 
Senate Executive Calendar at the end of last year, but Republicans 
insisted that they be returned to the President rather than held in 
place. Two were judicial nominees and three were nominees to head 
divisions at the Justice Department as Assistant Attorneys General. One 
of those nominations had been reported by the Senate Judiciary 
Committee by voice vote, with no dissent.
  Despite the fact that President Obama began sending judicial nominees 
to the Senate 2 months earlier than President Bush, last year's total 
was the fewest judicial nominees confirmed in the first year of a 
Presidency since 1953, a year in which President Eisenhower only made 
nine nominations all year, all of which were confirmed. The number of 
confirmations was even below the 17 the Senate Republican majority 
allowed to be confirmed in the 1996 session.
  Only 12 of President Obama's judicial nominations to Federal circuit 
and district courts were confirmed all last year, less than half of 
what we achieved during President Bush's first tumultuous year. We have 
confirmed only two more this year, after Republicans objected to 
consideration of the nomination of Joseph Greenaway of New Jersey to 
the Third Circuit, a nomination reported by the committee last October 
1 by unanimous consent.
  Democrats did not practice this kind of obstruction and delay in 
considering President Bush's nominations. In the second half of 2001, 
the Democratic majority in the Senate proceeded to confirm 28 judges. 
By this date during President Bush's first term, the Senate had 
confirmed 30 circuit and district court nominations compared to only 14 
for President Obama. In the 17 months that I chaired the Senate 
Judiciary Committee during President Bush's first term, the Senate 
confirmed 100 of his judicial nominees.
  During President Bush's last year in office, with Democrats again in 
the majority, we had reduced judicial vacancies to as low as 34, even 
though it was a Presidential election year. When President Bush left 
office, we had reduced vacancies in nine of the 13 Federal circuits.
  As matters stand today, judicial vacancies have spiked and are being 
left unfilled. We started 2010 with the highest number of vacancies on 
article III courts since 1994, when the vacancies created by the last 
comprehensive judgeship bill were still being filled. While it has been 
nearly 20 years since we enacted a Federal judgeship bill, judicial 
vacancies are nearing record levels, with 102 current vacancies and 
another 21 already announced. If we had proceeded on the judgeship bill 
recommended by the Judicial Conference to address the growing burden on 
our Federal judiciary, as we did in 1984 and 1990, in order to provide 
the resources the courts need, current vacancies would stand over 160 
today. That is the true measure of how far behind we have fallen. 
Justice should not be delayed or denied to any American because of 
overburdened courts and the lack of Federal judges. The rule of law 
demands more. The American people deserve better.
  Among the nominees ready for Senate approval are nine Federal 
judicial nominees reported by the Senate Judiciary Committee. Two would 
fill vacancies on the Third Circuit, three would fill vacancies on the 
Fourth Circuit, and there are nominees to fill vacancies on the First, 
Second and Sixth Circuits, as well as a district court nominee to 
Wisconsin. The delay in considering them is also part of this effort to 
delay and obstruct. Judge Greenaway, about whom Senators Lautenberg and 
Menendez spoke last week, was reported by unanimous consent back in 
October, four months ago.
  Two weeks ago the Majority Leader tried to get agreement to take up 
the nomination of Judge Greenaway, the next judicial nominee on the 
Senate Executive Calendar, but Republican objections continue to stall 
consideration. That is a shame. He is a good judge. Senator Sessions 
praised him at his confirmation hearing. Why he is being stalled I do 
not know, and no one has explained. Even after the statements by the 
New Jersey Senators, no one has come forward to explain the holdup from 
the Republican leadership. Judge Greenaway is one of the many 
outstanding judicial nominations reported by the Senate Judiciary 
Committee that remain stalled on the Senate Executive Calendar. They 
should

[[Page 936]]

have been confirmed last year and would have but for Republican 
objection. When considered, they will be confirmed but not before being 
needlessly delayed for months.
  They insisted on debate on the nomination of Judge Gerard Lynch, who 
was confirmed with more than 90 votes. Republicans insisted on hours of 
debate for the nomination of Judge Andre Davis, who was confirmed with 
more than 70 votes. Senate Republicans unsuccessfully filibustered the 
nomination of Judge David Hamilton last November, having delayed its 
consideration for months. For at least 2 additional months, Judge 
Beverly Martin's nomination was stalled because Republicans would not 
agree to consider it before January 20. Judge Martin, of course, had 
the strong support of both of her home state Republican Senators, 
Senator Chambliss and Senator Isakson, and the highest possible rating 
from the American Bar Association's Standing Committee on the Federal 
Judiciary.
  The Democratic leadership sought to build on our belated progress two 
weeks ago when we were allowed finally to consider and confirm Judge 
Martin. We asked for agreement to consider the nomination of Judge 
Greenaway. As the Majority Leader indicated two weeks ago: ``[The 
Democratic] majority was in a position to agree to a vote on the 
nomination of Joseph Greenaway to be a U.S. circuit judge for the Third 
Circuit. However, I was advised the Republicans would not agree to such 
request.'' This is Congressional Record S166, January 22, 2010, daily 
ed. Again, Senate Republicans have withheld consent and have objected 
to consideration of a nominee.
  None of the nine Federal circuit and district court nominations 
currently pending on the Senate Executive Calendar should be 
controversial. Six were reported by the Senate Judiciary Committee 
without a single dissenting vote. One had one negative vote, one had 
three negative votes and the nominee from Tennessee supported by 
Senator Alexander had 4 negative votes but 15 in favor, including 3 
Republicans. We have wasted weeks and months having to seek time 
agreements in order to consider nominations that were reported by the 
Senate Judiciary Committee unanimously and who are then confirmed 
unanimously by the Senate once they were finally allowed to be 
considered. That obstruction and delay continues.
  The American people deserve better. The cost will be felt by ordinary 
Americans seeking justice in our overburdened Federal courts. President 
Obama has reached across the aisle and worked with Republican Senators, 
including Senators Lugar, Martinez, Shelby, Sessions, Thune, Alexander, 
Burr, Chambliss and Isakson, who all have supported his judicial 
nominees. I wish Senate Republicans and the Senate Republican 
leadership would reconsider their tactics of obstruction and delay and 
work with us and with the President.
  The Republican minority must believe that this partisan playbook of 
obstruction will reap political benefit for them and damage to the 
President. But the people who pay the price for this political 
calculation are the American people who depend on the government being 
able to do its job. I hope that Republican Senators will rethink their 
political strategy and return to the Senate's tradition of promptly 
considering noncontroversial nominations.
  During his State of the Union Address last Tuesday night, President 
Obama talked with us about the ``deficit of trust--deep and corrosive 
doubts about how Washington works that have been growing for years.'' 
He urged that we show the American people that we can work together. 
Regrettably the Senate is being required to dedicate today and tomorrow 
to freeing one of the long-delayed nominations the President has sent 
to the Senate for advice and consent. This is not working together. 
This is yet another instance in which Senate Republicans have decided 
to delay and obstruct.
  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant 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 
     M. Patricia Smith, of New York, to be Solicitor for the 
     Department of Labor.
         Harry Reid, Tom Harkin, Jeff Bingaman, Mark Begich, Byron 
           L. Dorgan, Edward E. Kaufman, Barbara Boxer, Benjamin 
           L. Cardin, Robert Menendez, Kay R. Hagan, Sheldon 
           Whitehouse, Barbara A. Mikulski, Jon Tester, Roland W. 
           Burris, Kirsten E. Gillibrand, Bill Nelson, Mary L. 
           Landrieu.

  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 M. Patricia Smith, of New York, to be Solicitor for the 
Department of Labor shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond), the Senator from New Hampshire (Mr. Gregg), 
the Senator from Texas (Mrs. Hutchison), the Senator from Arizona (Mr. 
McCain), the Senator from Kansas (Mr. Roberts), the Senator from 
Louisiana (Mr. Vitter), the Senator from Idaho (Mr. Risch), and the 
Senator from North Carolina (Mr. Burr).
  Further, if present and voting, the Senator from Idaho (Mr. Risch), 
would have voted ``nay.''
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 60, nays 32, as follows:

                       [Rollcall Vote No. 17 Ex.]

                                YEAS--60

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

                                NAYS--32

     Alexander
     Barrasso
     Bennett
     Brownback
     Bunning
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McConnell
     Murkowski
     Sessions
     Shelby
     Snowe
     Thune
     Voinovich
     Wicker

                             NOT VOTING--8

     Bond
     Burr
     Gregg
     Hutchison
     McCain
     Risch
     Roberts
     Vitter
  The PRESIDING OFFICER. On this vote the yeas are 60, the nays are 32. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. REID. Mr. President, I ask unanimous consent, notwithstanding 
rule XXII, that the Senate consider the following nominations: Calendar 
No. 561, Clifford Stanley, to be Under Secretary of Defense for 
Personnel and Readiness; Calendar No. 603, Laura Kennedy, to be U.S. 
Representative to the Conference on Disarmament; Calendar No. 614, 
Philip Goldberg, to be Assistant Secretary of State for Intelligence 
and Research; Calendar No. 615, Caryn Wagner, to be Under Secretary for 
Intelligence and Analysis with the Department of Homeland Security; 
that the nominees be confirmed en bloc, the motions to reconsider be 
laid on the table en bloc, any statements relating to the nominations 
appear at the appropriate place in the Record as if read, and the 
President be immediately notified of the Senate's action.
  Prior to there being a statement on whether this is accepted, let me 
say, these are all critically important to the safety and security of 
this Nation: Clifford Stanley, Under Secretary of Defense; Laura 
Kennedy, the Conference on Disarmament; Philip Goldberg, Assistant 
Secretary of State for

[[Page 937]]

Intelligence and Research; and Caryn Wagner to be Under Secretary for 
Intelligence and Analysis with the Department of Homeland Security. 
Every one of these are very important, I repeat, to the security and 
safety of our Nation.
  The PRESIDING OFFICER. Is there objection?
  Mr. SHELBY. I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Ohio is recognized.
  Mr. BROWN. Mr. President, I rise to speak in support of the 
nomination of Patricia Smith, currently commissioner of labor for the 
State of New York, as the Solicitor of Labor.
  We just had a vote where, again, 40 people tried to block the 
nomination of a key position at the Department of Labor. This is a 
position that matters to workers. It is a position that matters to the 
middle class. It is a position that has remained unfilled for 1 whole 
year. It has been 1 year since President Obama has been sworn in. This 
is one of the top officials of the Labor Department. It is a department 
which, frankly, the Bush administration didn't put much stock in. The 
Bush administration didn't much care about enforcing the rules about 
labor, didn't much care about putting government on the side of the 
workers in terms of worker safety, in terms of wages, in terms of all 
the things a Labor Department is there for--to make sure people are 
rewarded for their labor; that people who work with their hands, people 
who work with their brains are compensated for the fruits of their 
labor. It is such an American success story, of people working hard, 
getting ahead and being compensated for what they do and sharing in the 
wealth they create for their employer through pay and benefits.
  That doesn't seem to be the way 40 Members of this body look at the 
world. The Solicitor of Labor is the third-ranking leader at the 
Department of Labor. She will be charged, if confirmed, with enforcing 
the full scope of the Federal laws protecting labor rights and 
employment rights. These are not trivial matters. They are important 
protections that reflect core American values: fair hiring practices, 
safe working conditions, retirement security, and the payment of wages 
and benefits rightfully earned.
  Let me give an example: There has been a practice in northeast Ohio--
and across the country, we find out--where, when you go to a restaurant 
and you don't pay your bill and you walk out of the restaurant, in many 
cases it is the person who waited on your table who ends up paying the 
bill. If you skip out on your bill--as has happened more and more and 
more in this recession--it is not management who eats the cost, it is 
typically the worker, the waiter, the waitress, the server who eats 
that cost.
  There are two cases--one in Columbus--where I believe it was a 
waitress, in this case, who chased a person out of the restaurant who 
didn't pay their bill and she was hit by a car and is paralyzed. There 
was a case in Texas where a server chased someone who didn't pay the 
bill out to the parking lot and was hit by a car and was killed.
  The reason they do that is they are trying to make the patron behave 
and do the right thing, but they paid the ultimate price for that. You 
know why? Because the Department of Labor has not enforced laws that 
protect that worker. Those are just two examples--one in Columbus and 
one, I believe, in Dallas or somewhere in Texas.
  There are only a few people who I am aware of who have expressed any 
concerns over Commissioner Smith's nomination. The Commissioner will 
enforce these rules that simply aren't being enforced--and were not 
enforced during the 8 years of the previous administration, which 
almost always sided with management over any real labor concerns--over 
wages, over safety, over worker concerns.
  A handful of Republicans have voiced opposition due to supposed 
discrepancies in Commissioner Smith's testimony before the Health, 
Education, Labor, and Pensions Committee. They disingenuously cite her 
statements regarding a small pilot program that constituted $6,000 of 
the Department's $11 billion budget. In response to written questions, 
Commissioner Smith clarified her statements to the full satisfaction of 
Chairman Harkin.
  Despite this, Republicans on the HELP Committee have held up the 
nomination process. Again, it has been 1 year and she is not sitting 
there yet--1 year of Republicans saying no, of blocking things, of 
obstruction. They have gone so far as to call for the withdrawal of the 
nomination altogether.
  It is irresponsible to cause a lengthy delay for a position that is 
so important. This isn't an inconsequential position that doesn't 
matter. It is a position that affects workers' rights, that affects 
workers' pay, that affects workers' ability to be part of the middle 
class. This position is particularly critical to the needs of workers 
in this country.
  We all know, in the last 10 years, until this recession, profits 
generally were up, the economy was growing--until this recession, until 
2007--yet workers' wages didn't keep up. Part of the reason is because 
we had a Labor Department that simply didn't care about enforcing these 
rules. We have a responsibility to provide leadership at the highest 
level to ensure American workers of their right to an honest day's 
work.
  I am pleased the President has nominated a candidate who is as well-
qualified as Patricia Smith to be our Nation's next Solicitor of Labor. 
She previously served as the New York attorney general's labor bureau 
chief, where she argued and won two cases before the U.S. Supreme 
Court.
  Her tenure as commissioner has come at a difficult period. Yet she 
has met the challenge with great professionalism and dedication. She 
has garnered support in New York State, where she worked in both the 
business and labor communities. The Business Council of New York 
State--not exactly the State AFL-CIO--said her record shows her to be 
``thorough, fair, and judicious in the use of the tools at her disposal 
to ensure compliance with New York's labor law.''
  Local chambers of commerce have also expressed their support, saying 
they ``have enjoyed not only attention and engagement from Patricia 
Smith, but a genuine working partnership.''
  She has received commendations while serving under both Democratic 
and Republican administrations. One Republican New York Senator 
observed that she ``has worked in a positive, bipartisan manner.'' The 
New York congressional delegation--both parties--unanimously supports 
her.
  Yet 40 Republicans have again said no and tried to block what we are 
trying to do, what the President simply wants to do--to fill this 
position.
  Let me conclude with a short story. Today, I was at Hugo Boss, which 
is a clothing manufacturer in Cleveland, OH. It is actually Brooklyn, a 
suburb of Cleveland. This Hugo Boss plant is one of the last 
manufacturing companies of men's suits, pants, and sport coats in the 
United States. It is Hugo Boss's last manufacturing plant. Hugo Boss 
has said this is a profitable operation. Hugo Boss is a German company. 
This is a profitable operation in greater Cleveland making suits, but 
they say they would make more if they moved their production to Turkey, 
and that is what they are going to do.
  I met with some of the 400 workers today. They make no more than $15 
an hour, many less than that. They are paid pretty good benefits. It is 
one more case where our trade laws and tax laws undercut manufacturing. 
These are jobs that barely get their workers to the middle class. A lot 
of husbands and wives both work at Hugo Boss, so I am hopeful they 
change their mind. At the same time, Hugo Boss says they are expanding 
their operations in the United States, but those operations are in the 
sales force. They are going to open more stores in the United States. 
They are expanding their sales force, but they have decided to 
eliminate production in the United States.
  Again, this is happening not because they are not making a profit in 
Cleveland but because they can make a bigger profit in Turkey. I think 
this illustrates, again, that it is time our government--whether it is 
enforcement of our labor laws with Patricia Smith or

[[Page 938]]

trade agreements and tax laws--comes down on the side of the workers, 
comes down on the side of communities. We know what this will mean for 
Cleveland, OH, in terms of taxes. We know what it will mean for those 
400 workers. We know what it will mean for those families. It is not 
good for anybody. It is important that at least we speak today in 
support of Patricia Smith, to show that this body will stand for 
workers and do the right thing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. ISAKSON. I ask to be recognized for up to 10 minutes as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________