[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17850-17858]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE 
            FOR THE DISTRICT OF COLUMBIA CIRCUIT--Continued

  Mr. REID. Mr. President, I ask for regular order regarding the 
Millett nomination.
  The PRESIDING OFFICER. Regular order is requested.
  The Senate resumes executive session to consider the Millett 
nomination, postcloture.
  The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent to address the 
Senate as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Changing Senate Rules

  Mr. McCAIN. Mr. President, the events and votes that took place today 
are probably as historic as any votes that I have seen taken in the 
years I have been here in the Senate.
  The majority, with only majority votes--the same as ObamaCare passed 
with only Democratic votes--changed the rules of the Senate in a way 
that is detrimental, in my view, not only to the Senate, not only to 
those of us in the minority party, but great damage to the institution 
itself.
  One of the men who served in this Senate for a long, long time, whom 
we respected as much or more than any other leader--he certainly knew 
the Senate rules more than any of the rest of us combined--was one 
Robert Byrd. Three months before his death, Robert Byrd wrote this 
letter. Three months before his death, he said:

       During my half-century of service in various leadership 
     posts in the U.S. Senate--including Minority Leader, Majority 
     Leader, Majority Whip and now President Pro Tempore--I have 
     carefully studied this body's history, rules, and precedents. 
     Studying those things leads one to an understanding of the 
     Constitutional Framers' vision for the Senate as an 
     institution, and the subsequent development of the Senate 
     rules and precedents to protect that institutional role.

  This is important, I say to my colleagues.
  He said:

       I am sympathetic to frustrations about the Senate's rules, 
     but those frustrations are nothing new. I recognize the need 
     for the Senate to be responsive to changing times, and have 
     worked continually for necessary reforms aimed at modernizing 
     this institution, using the prescribed Senate procedure for 
     amending the rules.
       However, I believe that efforts to change or reinterpret 
     the rules in order to facilitate expeditious action by a 
     simple majority, while popular, are grossly misguided. While 
     I welcome needed reform, we must always be mindful of our 
     first responsibility to preserve the institution's special 
     purpose.


[[Page 17851]]


  Finally, at the end, he said:

       Extended deliberation and debate--when employed 
     judiciously--protect every Senator, and the interests of 
     their constituency, and are essential to the protection of 
     the liberties of a free people.

  Mr. President, I ask unanimous consent that this letter by Robert 
Byrd be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                  Committee on Appropriations,

                                Washington, DC, February 23, 2010.
       Dear Colleague: During my half-century of service in 
     various leadership posts in the U.S. Senate--including 
     Minority Leader, Majority Leader, Majority Whip and now 
     President Pro Tempore--I have carefully studied this body's 
     history, rules and precedents. Studying those things leads 
     one to an understanding of the Constitutional Framers' vision 
     for the Senate as an institution, and the subsequent 
     development of the Senate rules and precedents to protect 
     that institutional role.
       I am sympathetic to frustrations about the Senate's rules, 
     but those frustrations are nothing new. I recognize the need 
     for the Senate to be responsive to changing times, and have 
     worked continually for necessary reforms aimed at modernizing 
     this institution, using the prescribed Senate procedure for 
     amending the rules.
       However, I believe that efforts to change or reinterpret 
     the rules in order to facilitate expeditious action by a 
     simple majority, while popular, are grossly misguided. While 
     I welcome needed reform, we must always be mindful of our 
     first responsibility to preserve the institution's special 
     purpose. The occasional abuse of the rules has been, at 
     times, a painful side effect of what is otherwise the 
     Senate's greatest purpose--the right to extended, or even 
     unlimited, debate.
       If the Senate rules are being abused, it does not 
     necessarily follow that the solution is to change the rules. 
     Senators are obliged to exercise their best judgment when 
     invoking their right to extended debate. They also should be 
     obliged to actually filibuster, that is go to the Floor and 
     talk, instead of finding less strenuous ways to accomplish 
     the same end. If the rules are abused, and Senators exhaust 
     the patience of their colleagues, such actions can invite 
     draconian measures. But those measures themselves can, in the 
     long run, be as detrimental to the role of the institution 
     and to the rights of the American people as the abuse of the 
     rules.
       I hope Senators will take a moment to recall why the 
     devices of extended debate and amendments are so important to 
     our freedoms. The Senate is the only place in government 
     where the rights of a numerical minority are so protected. 
     Majorities change with elections. A minority can be right, 
     and minority views can certainly improve legislation. As U.S. 
     Senator George Hoar explained in his 1897 article, ``Has the 
     Senate Degenerated?'', the Constitution's Framers 
     intentionally designed the Senate to be a deliberative forum 
     in which ``the sober second thought of the people might find 
     expression.''
       Extended deliberation and debate--when employed 
     judiciously--protect every Senator, and the interests of 
     their constituency, and are essential to the protection of 
     the liberties of a free people.
       With kind regards, I am
           Sincerely yours,
                                                   Robert C. Byrd.

  Mr. McCAIN. Mr. President, I wish Robert Byrd had been here on the 
floor today. I wish Robert Byrd had seen the travesty that just took 
place on a party-line vote. And when I use the word ``hypocrisy,'' I 
use it guardedly. I do not use that word with abandon. But this is 
another broken promise--another broken promise.
  I read from an article entitled ``FLASHBACK: Reid in 2008: `As Long 
As I Am The Leader' We Will Not Have a Nuclear Option.''

       Sen. Harry Reid said in a 2008 interview that as long as he 
     was the Senate Majority Leader, the nuclear option would 
     never happen under his watch.
       ``As long as I am the Leader, the answer's no,'' he said. 
     ``I think we should just forget that. That is a black chapter 
     in the history of the Senate. I hope we never, ever get to 
     that again because I really do believe it will ruin our 
     country.''

  He was talking about 2005 when this side of the aisle was in the 
majority and there was an effort--which we were able to diffuse--in 
order to do exactly what we did today. In 2008:

       Reid railed against Republicans who fought for the measure, 
     saying it would lead to a unicameral legislature and that the 
     U.S. Senate was purposefully set up by the Founding Fathers 
     to have different rules than the House of Representatives. 
     Such a measure like the nuclear option, he said, would 
     ``change our country forever.''

  I am sorry to say, I agree with him.
  I agree with what he said in 2008. Yet, on Thursday, on a nearly 
party-line vote of 52-48, the Democrats abruptly changed the Senate's 
balance of power.
  Here is the full exchange I will read from.

       Tom Daschle: What was the nuclear option, and what 
     likelihood is there that we're going to have to face nuclear 
     option-like questions again?

  This is an interview that the majority leader had with the former 
majority leader Tom Daschle.

       What the Republicans came up with was a way to change our 
     country forever. They made a decision if they didn't get 
     every judge they wanted, every judge they wanted, then they 
     were going to make the Senate just like the House of 
     Representatives. We would in fact have a unicameral 
     legislature where a simple majority would determine whatever 
     happens. In the House of Representatives today, Pelosi's the 
     leader. Prior to that, it was Hastert. Whatever they wanted, 
     Hastert or Pelosi, they get done. The rules over there allow 
     that. The Senate was set up to be different.
       That was the genius, the vision of our Founding Fathers, 
     that this bicameral legislature which was unique, had two 
     different duties. One was as Franklin said, to pour the 
     coffee into the saucer and let it cool off. That's why you 
     have the ability to filibuster and to terminate filibuster. 
     They wanted to get rid of all of that, and that's what the 
     nuclear option was all about.
       Daschle: And is there any likelihood that we're going to 
     face circumstances like that again?
       Reid: As long as I am the Leader, the answer's no.

  I repeat. He said, ``As long as I'm the Leader, the answer's no.''

       I think we should just forget that. That is a black chapter 
     in the history of the Senate. I hope we never, ever get to 
     that again because I really do believe it will ruin our 
     country. I said during that debate that in all my years in 
     government, that was the most important thing I ever worked 
     on.

  This gives new meaning as to where you stand on an issue as opposed 
to where you sit. This hypocrisy is not confined to Members of the 
Senate. Senator Barack Obama, former Member of this body, on April 1, 
2005, for the benefit especially of our newer Members on the Democratic 
side who were not here at the time and do not know what we went through 
to try to stop it when it was being proposed by this side of the aisle, 
then-Senator Barack Obama said--who congratulated the Senate today on 
our action. He said:

       The American people sent us here to be their voice. They 
     understand that those voices can at times become loud and 
     argumentative, but they also hope we can disagree without 
     being disagreeable.

  Then-Senator Barack Obama went on to say:

       What they don't expect is for one party, be it Republican 
     or Democrat, to change the rules in the middle of the game so 
     that they can make all of the decisions while the other party 
     is told to sit down and keep quiet.

  I ask my colleagues, what were we just told to do today?
  He went on to say that the American people want less partisanship in 
this town. But everyone in this Chamber knows that if the majority 
chooses to end the filibuster:

       If they choose to change the rules and put an end to the 
     Democratic debate, then the fighting and the bitterness and 
     the gridlock will only get worse.

  He went on to say:

       Now, I understand the Republicans are getting a lot of 
     pressure to do this from factions outside the Chamber. But we 
     need to rise above the ends-justifies-the-means mentality, 
     because we're here to answer to the people, all of the 
     people, not just the ones that are wearing our particular 
     party label.

  He went on to say:

       If the right of open and free debate is taken away from the 
     minority party and the millions of Americans who ask us to be 
     their voice, I fear that already partisan atmosphere in 
     Washington will be poisoned to the point where no one will be 
     able to agree on anything.

  That does not serve anyone's best interests. It certainly is not what 
the patriots who founded this democracy had in mind.
  We owe the people who sent us here more than that. We owe them much 
more. There are several other--in May 2005, Senator Reid also said:

       If there was ever an example of an abuse of power, this is 
     it. The filibuster is the last check we have against the 
     abuse of power in Washington.

  We just eliminated the filibuster, my dear friends, on nominees.
  Then he went on to say in April of 2005:

       The threat to change Senate rules is a raw abuse of power 
     and will destroy the very

[[Page 17852]]

     checks and balances our Founding Fathers put in place to 
     prevent absolute power by any one branch of government.

  So, yes, I am upset. Yes, on several occasions we have gotten 
together on a bipartisan basis and prevented what exactly happened 
today. What exactly happened today is not just a shift in power to 
appoint judges. That, in itself, is something that is very important. 
But what we really did today and what is so damning and what will last 
for a long time, unless we change it, that could permanently change the 
unique aspects of this institution, the Senate, is if only a majority 
can change the rules, then there are no rules. That is the only 
conclusion anyone can draw from what we did today.
  Suppose that in a few weeks the majority does not like it that we 
object to the motion to proceed: 51 votes. Suppose on cloture, they do 
not like having those votes for cloture: 51 votes. My friends, we are 
approaching a slippery slope that will destroy the very unique aspects 
of this institution called the Senate.
  I believe the facts will show, as the Republican leader pointed out 
today, that this was a bit of a strawman. Yes, there have been a 
handful, a small number, of nominees who were rejected by this side of 
the aisle. But there have been literally hundreds and hundreds of 
nominees who have not even been in debate on the floor of the Senate.
  All I can say is, when people make a commitment such as I just read 
from the President of the United States when he was in the Senate, from 
our majority leader, we should not be surprised when there is a great 
deal of cynicism about when we give our word and our commitment. I go 
back to the man I probably respected more than anyone in the years I 
have been in the Senate, one Robert Byrd. One thing I can promise you, 
if Robert Byrd had been sitting over in the majority leader's chair 
today, we would not have seen the events that transpired. This is a sad 
day.
  I am angry, yes. We will get over the anger. But the sorrow at what 
has been done to this institution will be with us for a long time.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Markey.) The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I want to thank Senator McCain, because 
I remember very vividly Senator McCain was part of a group of 14 
Senators who avoided this kind of occurrence.
  In 2005, I guess it was, right after President Bush took office, a 
group of Senators, really the entire Democratic Conference, went into a 
retreat, as reported by the New York Times. I think Senator Schumer was 
the organizer of it, but the whole conference attended. Cass Sunstein, 
Laurence Tribe, Marcia Greenberger were their experts. They discussed 
what to do about President Bush's new election and his ability to 
appoint judges. They announced they were changing the ground rules of 
confirmation, and for the first time immediately thereafter the Bush 
nominees were filibustered systematically. He nominated a Mr. Gregory 
who had been nominated by President Clinton and not confirmed. 
President Bush renominated him in a bipartisan act. He was promptly 
confirmed.
  But I believe the very next 10 nominees were all filibustered, every 
one of them. We had never seen a real filibuster of any judges at that 
time. But they were changing the ground rules to commit systematic 
filibusters. They filibustered virtually the first 10 judges President 
Bush nominated. It went on for weeks and months.
  We brought up nominees every way we could. These were some fabulous 
nominees, Supreme Court Justices, people with high academic records. 
But they were all blocked. It was something we had never seen before in 
the Senate. There was great intensity of focus on it. It went on for 
quite a long time.
  Finally there was a feeling on this side that this systematic 
filibuster was so significant that it undermined and neutered the 
ability of the President of the United States to appoint judges. There 
was a discussion about changing the rules. As time went by, that became 
more and more of a possibility. I think the American people turned 
against my colleagues who were blocking these judges, because they did 
not appreciate it.
  But finally a compromise was reached. This was what it amounted to: 
We will not filibuster a judge unless there are substantial reasons to 
do so. That was sort of the agreement. At that moment, five judges were 
confirmed--and a lot of people remember that. But what is forgotten is 
five went down. Five highly qualified judges were defeated on a 
partisan, ideological basis right out of the chute. They were some of 
the first judges President Bush ever nominated.
  I would just say that what has happened so far is that we have 
confirmed over 200 of President Obama's judges. Only two have been 
blocked. They have brought forth at this time three judges for the D.C. 
Circuit, the District of Columbia Circuit, the Federal Circuit. They 
are not needed. This country is financially broke. Even with the 
vacancies on the court today, with the 8 judges they have, their 
average caseload per active judge is 149. The average caseload for all 
the judges in all of the circuits around the country is 383, almost 3 
times, more than twice. My circuit, the Eleventh Circuit, the average 
caseload per judge is 778. They say they are not asking for more 
judges; they have been able to maintain that caseload.
  They say: Well, this is such a horrible, complex circuit. It is not a 
horrible, complex circuit. That is not so. The judges take the whole 
summer off because they do not have sufficient caseloads to remain 
busy. Judges on that circuit say they do not need any more judges. They 
do not need any more judges.
  I have been the ranking Republican on the courts subcommittee of the 
Judiciary Committee and chairman of it at times. The entire time I have 
been in the Senate I have been on that subcommittee one way or the 
other. I know how the caseloads are calculated, weighted caseloads and 
actual caseloads.
  That is why these judges were not confirmed, because we do not need 
them. Not for some ideological purpose. But the reason the President 
has insisted that they be appointed is an ideological purpose, because 
he wants to pack that court because he thinks he can impact regulatory 
matters for years to come. But I would just say, President Bush tried 
to do the same thing. Senator Grassley and I, who had been opposing to 
expanding the circuit, resisted President Bush's importunings to 
approve one of his judges.
  We eventually were able to fully transfer and close out one of those 
slots and move it to the Ninth Circuit where the judge was needed. 
Still, the caseloads have dropped. The caseloads in the D.C. Circuit 
have continued to drop year after year after year.
  We are going broke. This country doesn't have enough money to do its 
business. We are borrowing and placing our children at great risk. It 
is obvious we ought not to fill a judgeship we don't need. It is about 
$1 million a year, virtually $1 million a year to fund one of these 
judgeships. For the judges, the clerks, the supporting secretaries, the 
computer systems, and courtrooms we have to supply is $1 million. It is 
similar to burning $1 million a year on The Mall. We don't have $1 
million a year to throw away.
  We have other places in America that need judgeships. Senator 
Grassley has asked--and I have supported--and our bill would call for 
hearings and then we would transfer these judges to places that have 
greater need. That is why the judges were not moved forward.
  The caseloads continue to decline. The need is less than ever, and we 
don't have the money to fill a slot we don't need.
  It is heartbreaking to see that we have crossed this rubicon and 
changed these rules when the President--as a matter of actual ability 
to perform the job--has only had 2 judges fail to be confirmed out of 
over 200.
  This is breathtaking to me. There is a growing concern on our side of 
the aisle that Senator Reid, the majority leader, is very unwilling to 
accept the process. He is unwilling to accept the fact that he can't 
win every battle, and he changed the rules so he could win.

[[Page 17853]]

  I feel this is a dark day for the Senate. I don't know how we can get 
out of it. It is the biggest rules change--certainly since I have been 
in the Senate, maybe my lifetime, and maybe in the history of the 
Senate--where it has changed by a simple majority by overruling the 
Chair.
  The Parliamentarian advises the Presiding Officer of the Senate, when 
Senator Reid asked that these judges be confirmed by a majority vote, 
the Parliamentarian advises the Chair and the Chair ruled we can't 
confirm them on a majority vote. We can't shut off debate without a 
supermajority vote. The Chair ruled.
  Senator Reid says: I appeal the ruling of the Chair. I ask my 
colleagues in the Senate to overrule the rules of the Senate, by a 
simple majority vote, to overrule the Parliamentarian and the Presiding 
Officer of the Senate.
  This is what happened. When our rules say to change the rules of the 
Senate, it takes a two-thirds vote.
  This is a dangerous path which I hope my colleagues understand. Many 
things that are bad have been happening in the Senate. I will speak 
more about things that should not have happened and are eroding the 
ability of this Senate and the way it should function, that are eroding 
the ability of individual Senators from either party to have their 
voices heard.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. MORAN. I am a new Member of the Senate, serving in my first term. 
I was a Member of the House of Representatives before coming to the 
Senate, and I had great anticipation and expectation of the opportunity 
that service in this body presented to me.
  The Presiding Officer of the Senate today has had similar 
experiences. We served in the House of Representatives together. The 
ability for an individual Senator, particularly a new Senator, and 
perhaps even more so, someone from a smaller, rural State, our ability 
to influence the outcome to receive attention and to have the 
administration's nominees come to pay a call on us to become acquainted 
is diminished.
  In my view, today is the day that reduces the ability for all 
Senators to have influence in the outcome of the decisions of this body 
and therefore the outcome of the future of our country.
  I don't understand why this happened today. The empirical evidence 
doesn't suggest that Republicans have been abusive, that the minority 
party has failed in its obligation to be responsible.
  We heard the words the Senator from Arizona Mr. McCain spoke about 
others--President Obama, the majority leader of the Senate, the former 
Senator from West Virginia Mr. Byrd--about their views on this issue. 
Yet the outcome today was something different, different from what they 
said only a short time ago.
  It is hard to know why we did what we did today, but I know our 
ability as Senators of the United States to represent the people who 
hired us to represent them has been diminished.
  I am reluctant to attribute motives as to why this occurred. In the 
absence of evidence that would suggest there is a justifiable reason, a 
justified reason for doing so, I am fearful that what is reported in 
the press and elsewhere is the reason the rules were changed, which 
makes today even more sad to me because the explanation for why the 
rules were changed was a political effort to change the topic of 
conversation in Washington, DC, and across the country.
  The story is that the White House pressured the Senate to change its 
rules, not because the rules needed to be changed, there was abuse or 
because people actually believed this was a good rules change for the 
benefit of the Senate and the country but because the Affordable Care 
Act, ObamaCare, is front and center in the national media and on the 
minds of the American people. As ObamaCare is being implemented, people 
are discovering the serious problems it presents them and their 
families. Therefore, politically, we need to change the dialog, change 
the topic. For us to use a political reason to do so much damage to the 
institution of the United States is such a travesty.


                              Health Care

  I wish to mention the Affordable Care Act and talk for a moment about 
that.
  I am headed home and on Monday I will conduct my 1,000th townhall 
meeting. From the time I was in the House of Representatives, I held a 
townhall meeting in every county. In the Senate, I have conducted a 
townhall meeting in all 105 counties since my election to the Senate. I 
am beginning again and it happens that Monday will be my 1,000th.
  I have no doubt the serious conversations we have will not be about 
the rules or the institution of the Senate or what happened with 
something called cloture filibuster, the real problem people face is 
what ObamaCare is doing to them and their families. I have this sense 
there is an effort or perhaps belief--at least an effort--to convince 
people this is only a problem with a Web site. The Web site has 
certainly received a lot of attention over the past few weeks. Perhaps, 
unfortunately, the Web site is not the real problem.
  The real problems we have with the Affordable Care Act passed by a 
Congress on a straight party-line vote in the Senate, similar to what 
we saw today, and the consequences of ObamaCare are real and cannot be 
fixed by fixing the Web site. I wish those problems were only a simple 
matter of a technician adjusting the program that has been created for 
enrollment, but it is not the case.
  The mess of ObamaCare runs so much deeper. One of the consequences I 
know I will hear about on Monday and hitting individuals and families 
across the country right now is their cancelled insurance companies.
  President Obama spoke about this in the description of what the 
Affordable Care Act would mean to Americans: If you like your policy, 
you can keep it. If you like your physician, you can retain him or her.
  The fact that millions of Americans are now losing their health care 
coverage is not an unintended consequence. I doubt if it is anything 
that can be fixed with anything that President Obama said in his press 
conference a few days ago. The reality is this cannot be described as 
something we didn't know about.
  In fact, on the Senate floor in 2010, again, a straight party-line 
vote occurred, as we saw today, in which the opportunity to do away 
with the provisions of the grandfather clause--again, Republicans 
unanimously supporting an Enzi amendment to change it so this wouldn't 
occur and a straight party-line vote, with Democrats voting the other 
way. It wasn't as if this was something that wasn't considered or 
thought about. It wasn't as if we only woke up 2 weeks ago and we saw 
policies were being canceled and thought: Oh, my gosh. That is not what 
the Affordable Care Act is about.
  The reality is it was expected, it was built in, and it is a 
consequence of the Affordable Care Act.
  In order for ObamaCare to work and the exchanges to function, the 
Federal Government has to have the power to describe what policies will 
be available to the American people. ObamaCare takes the freedom to 
make health care decisions for an individual and their families and 
rests that authority with the Federal Government.
  Despite the headaches, frustrations, and anger Americans and Kansans 
are experiencing now, I don't see there is a real opportunity for us to 
solve that problem, because undoing what is transpiring with the 
policies would undermine the foundation of ObamaCare. I consider my 
task as a Senator from Kansas, in part, is to help people. People tell 
me in person, email, and by phone call about the consequences.
  The stories are a wide range of challenges. I talked about this on 
the Senate floor last week. An example is one conversation with a 
constituent who said: My wife has breast cancer. Our policy has been 
canceled. We have nothing to replace it with. Help me.
  These are things I can't imagine anyone in the Senate wouldn't want 
to try to help them. I don't know how we do that with the basis of 
ObamaCare that

[[Page 17854]]

designs the policies and removes the individual person from making the 
decisions about what is in their best interests and for their families.
  Calling for repeal and replacement of ObamaCare is not an assertion 
on my part that everything is fine with our health care system. There 
are problems with our health care delivery system, and they do need 
addressing.
  Long before President Obama was President of the United States, my 
service in Congress, much of the effort was trying to find ways to make 
certain health care was available and affordable to places across my 
State, whether one lived in a community of 2,000 or 20,000 or 2 
million--we don't have many communities with 2 million--200,000; people 
ought to have access to health care. In my view, it is an important 
task for all of us.
  While some hoped ObamaCare would be the solution, it turns out to be 
the problem. We can replace ObamaCare with practical reforms that 
promote the promise that the President made, that empower individuals, 
and give people the options they want. We need to do that. In order to 
do that we need to set ObamaCare aside and pursue what I would call 
commonsense, step-by-step initiatives to improve the quality of health 
care and slow the increase or reduce the cost of health care.
  In my view, we cannot not address preexisting conditions. We need 
protections for people, individual coverage, without a massive 
expansion of the Federal Government.
  We need to make certain millions of individuals retain their current 
health insurance policies that they know about and they like. We need 
to make certain we continue that health care coverage by enabling 
Americans to shop for coverage from coast-to-coast regardless of what 
State they live in. Competition will help reduce premiums. Increased 
competition in the insurance market is something that is of great 
value.
  It will extend tax incentives for people to purchase health care 
coverage, regardless of where they live. To assist low-income 
Americans, we can offer tax credits for them to obtain private 
insurance of their choice and to strengthen access to health care in 
our community health care centers. We need to make certain our 
community health care centers are supported so people who have no 
insurance or no ability to pay have access to the health care delivery 
system.
  Instead of limiting the plans Americans can purchase and carry, we 
need to give small businesses and other organizations the ability to 
combine their efforts and get a lower price because of quantity buying. 
We need to encourage Health Savings Accounts so people are more 
responsible for their own health.
  When it comes time to purchase health care coverage or access to 
health care, we are focused on what it would cost and we don't 
overutilize the system. People need to be empowered to have ownership 
of their health care plans and their health.
  We spend billions of dollars on health care entitlements. We need to 
boost our Nation's support for the National Institutes of Health by 
investing in medical research. We can reduce the cost of health care 
for all, save lives, and improve the quality of life.
  Our medical workforce needs to be enhanced. We need more doctors, 
nurses, and other health care providers. They need to be encouraged to 
serve across the country in urban areas of our country where it is 
difficult to attract and retain a physician and in rural and small 
towns where that is a challenge as well.
  Finally, we need to reform our medical liability system and reduce 
frivolous lawsuits that inflate premiums and cause physicians and 
others to practice defensive medicine.
  Those are examples of what we can do and we can do incrementally, and 
they seem, at least in my view, to be common sense. If we don't get it 
quite right, we have the ability to take a step back and make an 
alteration and improve it over time, as compared to the consequences--
the massive consequences--of this multithousand-page bill that, as we 
were told, we had to pass so that we would know what was in it.
  The fatal flaw of the Affordable Care Act is not its Web site but, 
rather, the underlying premise that the government can and should 
determine what is best for Americans regardless of what they want. We 
must not accept a health care system built upon such a faulty 
foundation.
  ObamaCare stands in stark contrast to the values of individual 
liberty and freedom that have guided our country since its inception. 
Americans should be in control of their own health care, and I will 
continue to fight policies that violate those values and advocate for 
policies that guard them, but also work to make sure that all Americans 
have better access to more affordable health care.
  If you like your health care policy, you should be able to keep it, 
and if you like your physician, you should be able to retain him or her 
providing health care for you. Our task is difficult, but it is one 
that is well worth the battle. We can preserve individual liberty and 
pursue goals in our country that benefit all Americans.
  I thank the Presiding Officer for the time on the floor this 
afternoon. I yield the floor, and 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. SESSIONS. 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. SESSIONS. Mr. President, to follow up on some of the comments I 
made earlier about the D.C. Circuit, there have been accusations--and I 
guess everybody has their perspective--that seem to suggest that 
Republicans, for ideological reasons, won't fill these judgeships 
slots.
  I have voted for probably 90 percent of President Obama's judges--
well over 80, I know--and the Senate has had confirmed over 200 of 
President Obama's nominees. I earlier said 250--I think maybe it is 
over 200. Only two have been denied confirmation.
  So these three judges have been appointed to a circuit where the 
caseload has been falling, and it already, by far--by far--has the 
lowest caseload in the country based on the eight judges now active in 
that circuit. So adding three more judges would bring that caseload 
down substantially further and create an even more underemployed court, 
which we don't need to do, especially when we have courts around the 
country that do need more judges. We need more district judges than 
circuit judges, but there are some circuit judge slots that need to be 
filled. So I say that out of respect to my colleagues. But it was a 
cause for concern that the President and other supporters of his 
judicial vision have openly stated their goal for filling these slots 
is to advance their agenda.
  President Obama says:

       We are remaking the courts.

  Senator Schumer:

       Our strategy will be to nominate four more people for each 
     of those vacancies. We will fill up the D.C. Circuit one way 
     or the other.

  One way or the other. In other words, no limit to what we will do to 
fill these slots that are not needed.
  Senator Harry Reid:

       Switch the majority. People don't focus much on the D.C. 
     Circuit. It is, some say, even more important than the 
     Supreme Court.

  I have heard conservatives make somewhat that statement, but that is 
totally wrong: It is not that important a circuit.
  It is an important circuit. Occasionally, key administrative rulings 
get filed in the D.C. Circuit, and they never get appealed to the 
Supreme Court. Their decision may be final on some administrative 
powers, but it is not equivalent to the Supreme Court--nowhere close. 
You can see that based on how few cases they actually handle.
  Senator Reid goes on to say:

       There are three vacancies. We need at least one more, and 
     that will switch the majority.

  Apparently, he is saying there is a division within the circuit and a 
one-vote majority for a more restrained view of the administrative 
rulings the court deals with sometimes and a group that is more 
activist, and he wants to

[[Page 17855]]

switch that majority. A bunch of others have said the same thing. They 
have said it.
  Doug Kendall, a liberal activist has said:

       With legislative priorities gridlocked in Congress--

  Now, get this--

     --they want the court to advance their political agenda that 
     cannot be passed in the Congress.

  Let me repeat that. The liberal activist goal is to advance an agenda 
that cannot be passed by the Congress--the duly elected 
representatives.
  I remember Hodding Carter, who served President Jimmy Carter, went on 
one of the morning Sunday talk shows--Meet the Press or something. He 
was one of the regular guest hosts, and he said one time: We Democrats 
and liberals have got to just admit it. We want the courts to do for us 
that which we cannot win at the ballot box.
  Judges shouldn't be doing that. But that is what Mr. Kendall says. He 
says:

       With legislative gridlock in Congress, the President's best 
     hope for advancing his agenda is through executive action.

  That runs through the D.C. Circuit.
  Nan Aaron, long active in advocating for activist Federal judges, 
said this:

       This court is critically important. The majority has made 
     decisions that frustrated the President's agenda.

  So the President is being pressured by a lot of these special 
interests, and there are others who are advocating these kind of 
actions. But the court is a court that is well constituted to do its 
duty, and it will continue to do so and needs no more judges. We don't 
have the money to fill them. We don't have the money to spend on it 
just to allow the President to pack the court with some of his nominees 
that will more likely advance an agenda. At least the agenda that he 
and his activist friends seem to favor that.
  When I came to the Senate, Senators on both sides of the aisle got to 
offer amendments. I remember Senator Specter, who was then a 
Republican--an independent Republican and a great Senator. He loved the 
Senate. He switched parties and became a Democrat. We were right down 
there on the floor. He was managing a health bill, and I had something 
I wanted him to accept as part of the manager's package, and he didn't 
want to do it. So I asked him again and he didn't want to do it, and I 
asked him again and he didn't want to do it. I wanted him to agree 
because I didn't want to offer the amendment and have Senator Specter 
oppose it because I figured I would lose the vote. So I asked him 
again, and he finally got irritated with me bugging him and he said: 
You are a United States Senator. If you want to offer your amendment, 
offer your amendment.
  That is the way it was when I came to the Senate.
  If you didn't like something, you could offer your amendment. But the 
managers of the bill had a lot of respect from the colleagues, and if 
the managers urged people not to vote for it, you were likely not going 
to win, but at least you could get a vote.
  If you promised your constituents back home that you believed in 
something and you were going to fight for it, you could at least get a 
vote, even if you lost. You could tell people you did that. And then 
you could hold people accountable for voting against what some might 
like and others would oppose, and people would know where Senators 
stand.
  We have had a significant, dramatic reduction in the number of votes. 
I think it started in maybe the late 1990s. I know Senator Frist filled 
the tree a number of times, but not many, over his time here. But 
Senator Reid has just exploded this process.
  A perfect example is this Defense bill. It was on the floor all week. 
We have normally had at least 25 or 30 votes on the Defense bill. We 
spend $500 billion in that authorization. There is a lot of concern and 
interest about defense money is spent and policies over sexual assault 
or other issues relative to the military, and those are important 
issues that people have concerns about and are willing to vote on. Why 
shouldn't they be able to get a vote? Really, why shouldn't they be 
able to get a vote?
  Some of the new colleagues who got elected in 2012 particularly 
wanted to change the rules of the Senate and demanded that we do 
better. I raised the question of what the majority leader had been 
doing. Let's take this Defense bill I mentioned. What did he do? He 
gets the right of first recognition in the Senate, and there are only a 
certain number of amendments that can be put on the amendment tree. He 
fills all those slots--we call it filling the tree--and then no one 
else can get an amendment pending that the majority leader doesn't 
approve. It is really unbelievable. And like frogs in warming water, we 
don't even realize the pan we are in has about got us cooked. We have 
Members on our side who have missed what is happening to us. I guess 
half of our Members even on the Republican side were not here when all 
this started. All they have known is this process.
  So Senator Reid fills the tree. He says he approved two sexual 
assault amendments for the military. That is all we have had all week, 
and he immediately files cloture. He immediately files to shut off 
debate. When he does that, he then says we are filibustering. He is 
saying that is a filibuster and he is going to file cloture, demand 
that we grant cloture and move the bill without any amendments.
  This is unacceptable. So Republicans say: We are not going to end 
debate on the bill until we have a legitimate opportunity to file 
amendments to the Defense authorization bill and actually vote on some 
of the key issues facing America's national security and our men and 
women in uniform. We want a robust ability.
  No.
  Well, submit a few amendments. Well, that is too many. We are not 
going to vote on that one. I don't like that one. I don't like that 
one. No, you can't get a vote on that one. Our Members don't want to 
vote on that. You can only have a constricted number.
  So we have this spectacle of Senators from great States all over 
America, hat in hand, bowing before the majority leader, pleading that 
he allow them to have their amendment up for a vote. It is not right. 
It is an alteration of the whole concept of the free and open debate 
the Senate is all about. I truly believe it is, and we are going to 
have to stop it.
  I blame myself. I have complained about this probably as much or 
maybe more than anyone on our side, but I haven't taken the action 
maybe that we need to take to begin to confront this issue.
  When my new young colleagues and I were discussing this, one of them 
said: Why, we even have to ask Senator McConnell and get his permission 
to offer our amendment.
  How could this happen? How could a Senator from one of the great 
States of America be in a position--a Democratic Senator. He has a 
majority in the Senate. How could he be in a position to have to seek 
Senator McConnell's approval to call up an amendment?
  Here is the answer. Senator Reid tells Senator McConnell: I am not 
going to have all of these amendments. We are only going to have five 
amendments, and you can't have this one, this one, and this one.
  What are your amendments, Senator McConnell says to Senator Reid.
  He says: Well, these are the amendments we want to offer.
  Senator McConnell says: Well, you have restricted my amendments. I 
don't want to vote on those two amendments of your five. You are going 
to have to pull those down.
  So, in a sense, that young Senator was telling me the truth. I 
suspect Senator Reid goes back and says: Senator So-and-So, Senator 
McConnell is objecting to your amendment. We can't call it up.
  Well, why can't you call it up? I mean, the very idea that a Senator 
from New York has to ask a Senator from Kentucky whether he can have an 
amendment is contrary to the approach of the Senate.
  So filling the tree is altering the whole process. Again and again, 
Senator Reid takes the floor, he fills the tree, limits amendments, and 
files cloture immediately. And those of us who

[[Page 17856]]

say: No, we are not going to agree to shut off debate through cloture 
because you haven't allowed us to have a legitimate chance to offer 
amendments--we vote against cloture, and he says: You are filibustering 
the bill. And he adds these up, and he says that Republicans to an 
unprecedented degree are filibustering, when all it is, is a reaction 
to his railroading tactics that have never been used to this degree in 
the history of the Senate.
  Senator McCain was quite correct in pointing out the switching of 
positions that Senator Reid now takes. While he was opposing this kind 
of tactic before and supporting filibusters, he has now taken the exact 
opposite.
  With regard to our judicial issues, the Democrats went to a retreat 
in 2000 and decided to change the ground rules. I believe Senator Reid 
was involved, and Senator Schumer was one of the organizers, according 
to the New York Times. He said: We are going to change the ground 
rules. And they started immediately and held the first 10 Federal judge 
nominees to the courts of appeals of President Bush and filibustered. 
We had never seen anything like that.
  Now, according to this document I have, Senator Schumer says: We are 
going to confirm these judges one way or the other, and if you use the 
right to filibuster--which I pioneered and Senator Reid pioneered--if 
you use that right, now that we have the majority, we are going to 
change the rules with a simple majority, and we are not going to allow 
these judges to be blocked even though we have no need for one of them. 
We are going to ram it through, and we are going to make the taxpayers 
pay for it, $1 million a year, one way or the other.
  So that is where we are, and I don't believe it is good.
  I am not opposed to modernists. I believe we need to be consistent in 
our principles. We need to defend the history of the Senate. And I 
don't believe you can change it one year and change it back the next 
and act as if nothing significant happened. I believe there is a truth 
and I believe there are values that need to be consistently upheld--at 
least at a minimum--so this Senate can function.
  Senator Reid has to stop this process. He cannot continue to dominate 
the Senate the likes of which has never happened before. There is no 
one-man dictator in this Senate. We need to say no. That is just the 
way it is. There is no way the majority leader of the Senate of the 
United States should be dominating this body the way it is happening 
today and going to the ultimate of changing the rules as was done 
today. I feel strongly about that. We are going to continue to talk 
about that.
  We have an institution to preserve. Senator Byrd would never have 
allowed this to happen--as Senator McCain said--the historian of the 
Senate, who explained this great Senate's history. When I first came 
here, he lectured to both parties and new Members about what it is all 
about. The love he had for this institution was strong.
  I happened to have the honor earlier today to hear Senator Levin talk 
about this issue. He is leaving this body. He is a great Senator. He is 
smart. I have been so impressed with how he has handled the Armed 
Services Committee, on which I am a member and he is chairman. He gets 
virtually unanimous votes on the defense authorization bill. And the 
only reason we had no votes on the bill on the floor today in committee 
was because they marked the spending level above what the Budget 
Control Act says. They shouldn't have done that. Under that proposal, 
we would spend more money than we are allowed to spend under law. But 
it was done. Otherwise, all the differences were freely discussed. We 
had multiple amendments. Senator Levin is very precise. He allows 
people to make amendments. He suggests compromise. He allows people 
time to discuss with staff, come back, amend, agree, disagree, and 
finally have a vote. It creates good spirit, and it creates a committee 
such that even legislation as important as this can pass unanimously 
out of committee. I believe last year the bill was unanimous out of the 
Armed Services Committee, which is hard to achieve in any legislative 
body.
  This is a dark day. I am disappointed at where we are. This is a 
matter that can't just be forgotten. It won't be forgotten. We don't 
need to act precipitously, but we need to make clear that for the 
Senate to work, individual Senators of both parties have to be free to 
offer amendments--that clearly needs to be so--and certain rights the 
minority party might have cannot be eroded anytime they become 
effective to frustrating the majority leader's desire to advance 
certain pieces of legislation or nominees.
  This is not going away. We will keep discussing it. I hope and pray 
we will be able to reach some sort of solution which puts us back on 
the right path.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Schatz). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Unanimous Consent Request--S. 1774

  Mr. SCHUMER. Mr. President, I ask unanimous consent that, as in 
legislative session, the Senate proceed to the consideration of S. 
1774, a bill to reauthorize the Undetectable Firearms Act of 1988 for 1 
year, introduced earlier today; that the bill be read three times and 
passed and the motion to reconsider be laid upon the table with no 
intervening action.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. Mr. President, reserving the right to object, I say to 
our colleagues, this is not a good day to move forward with this 
legislation. We will be glad to give it serious attention. I know it is 
the kind of thing we probably can clear at some point, but I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I appreciate the remarks of my friend 
from Alabama, my gym mate and friend and colleague. I would say this. 
This is simply a renewal of a bill that has passed the Senate 
unanimously several times before. These days, technology has allowed us 
to make undetectable a firearm--no metal. It can get right through a 
metal detector.
  I would like to improve on this bill but, because it expires by 
December 9, right before we get back, I was hoping we could simply pass 
the existing law that is on the books. I am afraid that will not 
happen.
  I understand why my colleague from Alabama objected. I hope as soon 
as we come back we might get this body to pass it and maybe get the 
House to pass it.
  We are in a dangerous world. To allow terrorists, criminals, those 
who are mentally infirm, to walk through metal detectors with guns that 
are made of plastic and then use them at airports, sporting events, and 
schools is a very bad thing. What makes us need to do this rather 
quickly is that a few months ago someone in Texas published on a Web 
site a way to make a plastic gun, buying a 3-D printer for less than 
$1,000. There are over 200,000 copies, hits on that Web site. People 
hit the Web site then, so we have to move quickly here. I hope we can 
move as soon as we get back.
  I do understand the objection of my colleague tonight, given 
everything that has happened today, but we cannot wait. I hope nobody 
will object to this bill. I have some worries that some might, but 
let's hope not. This is serious stuff.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. Mr. President, I rise today to speak on the National 
Defense Authorization Act, an amendment I have filed, Amendment No. 
2903, which

[[Page 17857]]

supports the next generation long-range strike bomber. I hope we do get 
on the Defense bill.
  This amendment, like many of the amendments that have been filed to 
this bill, is both germane and noncontroversial. As has been the past 
practice with the Defense authorization bill, my amendment should be 
included in a managers' package that could be passed by unanimous 
consent. In the past, when the Senate has considered the National 
Defense Authorization Act, we have had an average of around 11 recorded 
votes. That is the historical average. This year so far we have had 
two. For amendments included by voice vote or unanimous consent, 
anywhere from 80 to 100 amendments tend to be the norm. In other words, 
that is the number of amendments that we process, not have recorded 
votes on, but amendments that are offered to the bill and handled one 
way or another but end up getting added to the legislation. This year 
we have not even been able to have a managers' package, which would 
include many of these noncontroversial amendments.
  I support Senator Inhofe, who is the ranking Republican on the Armed 
Services Committee and my Republican colleagues here in the Senate, in 
the approach they have taken while this bill has been on the floor. 
Considering this bill, there needs to be an open amendment process. We 
are not talking, as I said, about the hundreds of amendments that have 
been filed, but a reasonable number should be considered on the Senate 
floor.
  Everyone here is aware of the time constraints we are under, but that 
is not an excuse for bypassing an open amendment process on this 
important piece of legislation.
  As the Senate debates the annual Defense authorization bill, our 
military continues to face increasing budget constraints. These budget 
constraints have forced our military to prioritize and develop ways to 
increase efficiency and reduce spending. As we look ahead, the 
Department of Defense must continue to focus on ways to best prepare 
for the threats our country will face in the future.
  On all fronts, these future threats will require an increasingly 
mobile force that relies on speed and technology to reach conflict 
points around the world. With regard to the Air Force, this means a 
modernization of our current fleet. According to General Welsh, the 
Chief of Staff for the Air Force, the next generation long-range bomber 
is one of the top three procurement programs our Air Force must pursue 
to modernize our fleet and to meet future challenges. The other two, 
the F-35 joint strike fighter and the KC-46 aerial refueling tanker, 
are currently underway.
  The next generation bomber, which General Welsh has called a must-
have capability, will ensure our ability to operate effectively in 
anti-access and area-denial environments. As potential adversaries 
continue to modernize their anti-aircraft systems, our ability to 
penetrate those systems must modernize as well.
  The Department of Defense has already begun investing in the research 
and development phase for the next generation bomber. In the meantime, 
our current bomber fleets, B-2s, B-1s, and B-52s, continue to provide 
robust deterrent in long-range strike capabilities. The upgrades which 
are currently being made to these aircraft allow them to operate in the 
modern environment. However, as this fleet continues to age into the 
mid-2020s, the next generation bomber will need to come online.
  My home State of South Dakota is home of the 28th Bomb Wing, which 
commands two of three combat squadrons operating the B-1B strategic 
bomber. The men and women of the 28th Bomb Wing have bravely defended 
our country in Iraq and Afghanistan.
  In 2011, the B-1 played a key role in Operation Odyssey Dawn, 
launching from Ellsworth Air Force Base in South Dakota, dropping 
munitions in Libya, and returning home in one continuous flying 
mission. This operation marked the first time the B-1 launched combat 
sorties from the continental United States to strike targets overseas, 
and it exemplifies the B-1's crucial flexibility and capability to 
project conventional airpower on short notice anywhere in the world. Of 
the three aircraft in our bomber fleet, the B-1B has the highest 
payload, fastest maximum speed, and operates at the lowest cost per 
flying hour. As I have said before, the B-1 is the workhorse of our 
U.S. Air Force.
  As the R&D continues for the next generation bomber, the Air Force 
has already identified many essential capabilities to this aircraft. 
According to the Air Force, the next generation bomber should be usable 
across the spectrum of conflict from isolated strikes to prolonged 
campaigns. It should provide the Commander in Chief the option to 
strike a target at any point on the globe, and it must be able to 
penetrate modern air defenses despite an adversary's anti-aircraft 
systems. In terms of payload, it must be capable of carrying a wide mix 
of standoff and direct attack munitions and have the option for either 
nuclear or conventional capability.
  As part of the strategy for development, the next generation bomber 
should allow for the integration of mature technologies and existing 
systems, taking into account the capabilities of other weapon systems 
to reduce program complexity.
  While developing the next generation bomber will not be easy, the Air 
Force has learned several important lessons from its most recent 
procurement efforts. The Department of Defense has already streamlined 
requirements and oversight to ensure a timely decisionmaking process 
for the next generation bomber.
  This initiative has included efforts to reduce costs for the overall 
program with a goal of preventing cost overruns which have plagued 
previous acquisition programs.
  The Department of Defense already knows the importance of this 
program. As outlined in the 2015 to 2019 Program Objective Memorandum, 
the Air Force intends to prioritize the development and acquisition of 
the long-range strike bomber over the next several years. As the Air 
Force continues to modernize, the long-range strike bomber remains a 
must-have capability for future combat operations.
  This amendment is very straightforward. I hope we get back on the 
Defense authorization bill. I hope we have an open amendment process. I 
hope that amendments such as this, which are germane and 
noncontroversial, can be included in a managers' package of amendments 
or at least considered on the floor by my colleagues in the Senate.
  It is essential in light of the many challenges we face around the 
globe today with the potential adversaries out there and the threats 
that exist as we look out over the horizon that we make every 
preparation and take every necessary step to ensure our country can 
defend itself and our allies around the world. American interests and 
American national security interests are always at stake, and it is 
important for us to invest wisely in those types of weapon capabilities 
that can ensure that the United States is prepared for whatever 
contingency might develop around the world.
  I hope we will get back on the Defense authorization bill, allow 
amendments to be considered, as they have been in the past. Whenever we 
have processed Defense bills in the past, we have had a process that 
has allowed for consideration of many amendments. As said before, we 
had 80 to 100 amendments in most cases and multiple rollcall votes--way 
more than we had on this bill so far.
  This is important to the men and women who wear the uniform of the 
U.S. military. This should be a priority for us, and it should be a 
priority for our country. I hope we can get the bill on the floor, 
process amendments, pass it, and get it on the President's desk where 
it can be signed into law.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page 17858]]

  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________