[Congressional Record (Bound Edition), Volume 159 (2013), Part 8]
[Senate]
[Pages 11291-11300]
[From the U.S. Government Publishing Office, www.gpo.gov]




             UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR

  Mr. McCONNELL. Madam President, I have a consent that I think would 
set up these votes in a much more expeditious way than the way the 
majority leader is proceeding. But first let me just say, these are 
dark days in the history of the Senate. I hate that we have come to 
this point. We have witnessed the majority leader break his word to the 
Senate.
  Now our request for a joint meeting of all the Senators has been set 
for Monday night--a time when attendance around here is frequently 
quite spotty--in an obvious effort to keep as many of his Members from 
hearing the concerns and arguments of the other side as possible. It 
remains our view that for this to be the kind of joint session of the 
Senate that it ought to be, given the tendency of the Senate to have 
sparse attendance on a Monday night, to have this meeting on Tuesday 
before it is too late.
  Having said that, a more expeditious way to accomplish most of what 
the majority leader is trying to accomplish would be achieved by the 
following consent: I ask unanimous consent that on Tuesday at 2:15, the 
Senate proceed to consecutive votes on the confirmation of the 
following nominations: No. 104, that is Pearce to be a member of the 
NLRB; No. 102, Johnson, to be a member of the NLRB, and No. 103, 
Miscimarra, to be a member of the NLRB.
  I might just say, parenthetically, if those nominees were confirmed, 
coupled with the two nominees illegally appointed, whose illegal 
appointments' term continue until the end of the year, the NLRB would 
have a full complement of five members and able to conduct its 
business.
  I further ask consent that following those votes, the Senate proceed 
to the cloture motion filed on Calendar No. 99; that is, Perez, to be 
Secretary of Labor; and, further, if cloture is invoked, the Senate 
immediately proceed to a vote on the confirmation of the nomination--I 
would add, parenthetically, that would eliminate the post 30 hours, 
assuming cloture were invoked on the very controversial nominee, Perez, 
to be Secretary of Labor--further, the Senate then vote on the cloture 
motion filed on Calendar No. 98, McCarthy, to be EPA Director; and if 
cloture is invoked, the Senate proceed to a vote on the confirmation of 
the nomination--also eliminating the 30 hours postcloture if cloture is 
invoked on McCarthy; and I might add that the ranking member of the 
environment committee supports cloture on the McCarthy nomination. 
Thereby, it is reasonable to assume that cloture would be invoked on 
what is for a lot of our Members, including myself, a very 
controversial nomination. I further ask consent that the Senate then 
vote on the cloture motion that was filed on Calendar No. 178--this is 
someone named Hochberg, to be president of the Export-Import Bank--
again, if cloture is invoked, the Senate proceed to an immediate vote 
on the confirmation of that nomination--again, eliminating the 30 hours 
postcloture, assuming cloture is invoked; and I assume that it will 
be--finally, I ask consent that following the votes listed above the 
Senate proceed to the cloture votes on the remaining three filed 
cloture motions.
  Now, before the Chair rules, what this allows, as I indicated, is for 
the Senate to work efficiently through a series of nominations in a 
quicker fashion than the majority leader has proposed.
  They would get their votes and there would not be a delay. This would 
only leave discussion and votes on the three

[[Page 11292]]

remaining illegally--according to the Federal court--the three 
remaining illegally appointed nominations. That is my unanimous 
consent.
  The PRESIDING OFFICER (Mr. Coons). Is there objection?
  Mr. REID. Mr. President, reserving the right to object, no matter how 
often my friend rudely talks about me not breaking my word, I am not 
going to respond talking about how many times he has broken his word. 
That does not add anything to this debate we are having. So he can keep 
saying that as much as he wants. All we have to do is look back at the 
record today.
  As to the caucus Monday night, my Members will be here. I do not 
understand--unless this is part of the overall pattern we have come to 
expect around here, to not do anything today you can do tomorrow. We 
are going to have a vote at 5:30. Members are usually pretty good at 
getting here for votes at 5:30.
  I also am stunned by boasting about the ranking member on the EPW 
Committee suddenly seeing the light and he is going to allow Gina 
McCarthy to get a vote. Now, is that not wonderful? Is that not 
something to cheer about? He has held up this woman. He is the one who 
is responsible for 1,100 questions to her. That is what is wrong here. 
This is so transparent what my friend has asked. He has said he wants 
to approve two Republican members to the NLRB. Let's have those votes 
first--only one Democratic nominee. What does this mean? It means 
within a couple of months Republicans have a majority of the NLRB. I do 
not blame him for wanting that.
  They do not like the organization anyway, just like they do not like 
Cordray's organization. So I can understand that the Republican leader 
would like to get consent to create a Republican majority on the NLRB. 
But it is so obvious. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. We are going to have a caucus Monday at 6 o'clock in the 
Old Senate Chamber. We are going to vote at 5:30. I would hope with 
something this important we will have attendance. I know my caucus will 
be there. If nothing is resolved there, which is the way things have 
been going today, likely it will not be, so we will have a vote 
sometime early Tuesday morning on these nominations.
  Mr. McCONNELL. Mr. President, the majority leader always reminds me 
he can have the last word. I am sure he can have the last word again. 
Speaking for Senator Vitter, he did ask for a lot of information from 
the new prospective Administrator of the EPA--so did Senator Boxer. She 
asked for 70,000 pages herself. But he was satisfied with the responses 
he got. This is how the process ought to work. This is how it has 
worked for decades. You are trying to get answer to questions. You are 
trying to engage in some kind of prediction as to how somebody might 
operate in the future.
  What the majority leader has been saying all along is he wants the 
confirmation process to be speedy and for the minority to sit down and 
shut up. He believes that advise and consent means sit down and shut 
up; confirm these nominees when I tell you to.
  The reason he is having to take a lot of heat over this is because he 
has broken his word to the Senate, given last January, that we had 
resolved the rules issue for this Congress. I know for a fact, even 
though he may get his 51 votes, there are a lot of Democrats who are 
not happy with where the leader is.
  When they tell me that--the Republican I expect they would be least 
likely to want to tell that to--I know what is going on here. They have 
been hammered into line. This has been personalized by the majority 
leader: You have to do this for me. What is astonishing is he is 
saying, you have to do this for me because you have to help me break my 
word and go back on everything I said in my own biography just a few 
years ago. You have to help me look bad. You have to help me break my 
word, violate what I said in my own biography, create unnecessary 
controversy in the Senate, which has done major bills on a bipartisan 
basis all year long and had begun to get back to normal.
  This is very hard to understand. This is why my Members are 
astonished at where we are. They are scratching their heads, saying: 
Who manufactured this crisis? We know who manufactured it, the guy 
right over here to my left. So this is a very sad day for the Senate. 
If we do not pull back from the brink, my friend the majority leader is 
going to be remembered as the worst leader of the Senate ever, the 
leader of the Senate who fundamentally changed the body.
  It makes me sad. Some of my Members are more angry. I am more sad 
about it. But it is a shame we have come to this. I sure hope all the 
Democratic Senators are there Monday night. I am certainly going to 
encourage my Members to be there. It is high time we sat down and tried 
to understand each other, because many Members on the other side are 
hearing a different version of the facts that are largely unrelated to 
reality.
  I know my friend the majority leader will have the last word. He 
reminds me of that frequently, on a daily basis, that the difference 
between being the majority leader and the minority leader is he gets 
the last word. So I will yield the floor and listen to the last word.
  Mr. REID. Mr. President, no matter how many times he says it, he 
tends to not focus on what he has done to the Senate. As I indicated 
earlier, there is lots of time for name-calling. But we know it is 
replete in the Record, as delivered this morning, how he said there 
would be no filibusters, we would follow the norms of the Senate, only 
extraordinary circumstances.
  The extraordinary circumstances have come because we are in session, 
I guess. The only person I know who thinks things are going just fine 
is my friend. The American people know this institution is being 
hammered hard. He does not have to worry about me for the heat I have 
taken. I have not taken any heat. I had a very nice caucus today. My 
caucus was thoughtful. We heard from--out of my 54 Senators, we 
probably heard from 25 or 26 of them. Attendance was nearly perfect. So 
I do not want him to feel sorry for the Senate, certainly not for me.
  I am going to continue to try to speak in a tone that is appropriate. 
His name-calling--I guess he follows, and I hope not, the demagogic 
theory that the more you say something, even if it is false, people 
start believing it.
  It is quite interesting that Richard Cordray, who no one--no one--
says there is a thing wrong with this man, former attorney general of 
the heavily populated State of Ohio--Democrats and Republicans have 
said he is a good guy--this man has been waiting 724 days; Assistant 
Secretary for Defense, 292 days; Monetary Fund Governor, 169 days; EPA, 
128 days; NLRB, two of them, 573 days. We have 15 of them. Average time 
waiting is 9 months.
  Reshuffling the votes as he wants them, that is a laugher. He wants 
to have a majority of the NLRB be Republicans. I do not think that is a 
good idea. We are going to have our caucus Monday. I think it was a 
good idea. I have tried to have them before. My friend has objected to 
them. That is replete in the press. But we are going to have this one. 
I am happy to do that.
  My friend said the process works. The process works? The status quo 
is good. I do not think so.
  Mr. McCONNELL. Of course, the majority of the NLRB would not be 
Republicans. I have mentioned to the administration on several 
occasions: Send us up two nominees who are not illegally appointed. But 
we cannot seem to get that done. I mean, the taint attached to the two 
NLRB nominees and to Mr. Cordray, who I agree is a good man and many of 
my Members support, is that they were illegally appointed.
  But, of course, the agencies have not been at a disadvantage. They 
are there waiting. He may have been waiting to be confirmed, but he is 
not waiting to do the job. He is in office. The two NLRB members are in 
office. The question is, do we respect the law? A Federal court has 
said the two NLRB members were illegally appointed.

[[Page 11293]]

  Mr. Cordray, unfortunately, was appointed on exactly the same day in 
exactly the same way. Is the Senate completely lawless? Do we not care 
what the Federal courts say? I am stunned at where we are. It is pretty 
clear to me that all the other nominees are highly likely to be 
confirmed.
  What it comes down to is that the majority leader is going to break 
the rules of the Senate to change the rules of the Senate in order to 
confirm, with 51 votes, three illegally appointed positions that the 
Federal courts have told us are unconstitutionally appointed. That is 
the rationale for the nuclear option?
  That is why I say it is a sad day for the Senate, a sad day for 
America.
  Mr. REID. Mr. President, illegally appointed? Why did President Obama 
recess appoint Cordray and the two NLRB members? Because the 
Republicans had blocked them, blocked them, blocked them, blocked them. 
We count Cordray as only 571 days. That went on long before he got 
there. Elizabeth Warren is the one who set up this program. They said: 
No chance. Do not even think of bringing her here. That is when he came 
with Cordray. Elizabeth Warren found him as attorney general of Ohio. 
So these big crocodile tears--you have recess appointments because the 
President had no choice if he wanted his team to work.
  He said: Oh, we would be happy to process them quickly, just like 
Richard Perez has been processed quickly? Just like all of these people 
have been processed quickly? Sorry. So there is not a chance that we 
are going to let the NLRB be dominated by Republicans. That one 
organization, above all, looks out for working men and women in this 
country, should not be dominated by Republicans. It is not going to be.
  So I repeat, this issue can be resolved very quickly. I had somebody 
out here at my stakeout say: What happens if you get cloture on 
everybody?
  I said: There is no problem. They can all vote against these people. 
They can vote against them, every one of them. But they, on a 
procedural basis, they are holding up votes on people who are well 
qualified and would be approved by the Senate if they got a vote. So 
this is a little strange deal. Talk about marshaling your troops to do 
something that is absolutely wrong. It is that. If they are so worried 
about the rules changes around here, it would seem to me they should 
approve three qualified people whom no one--no one--suggests there is 
anything wrong with any of them.
  Why were they recess appointed? Because the Republicans forced 
President Obama to do that. There will be no further votes this week. 
The next vote will be Monday at 5:30.
  The PRESIDING OFFICER (Mr. Merkley). The Republican leader.
  Mr. McCONNELL. Mr. President, on the issue of delay, I am trying to 
avoid bursting out in laughter. The two NLRB nominees were sent up to 
the Senate December 15, 2011--December 15, 2011. Before their paperwork 
got here, 2 weeks later the President recess appointed them. Delay? 
Their paperwork had not even arrived. The committee could not do 
anything with them. A couple of weeks later they were recess appointed.
  That is not my definition of a delay, by any objective standard.
  The core issue here, no matter how much the majority leader tries to 
obfuscate and discuss other matters, is that he is prepared to break 
the rules of the Senate to change the rules of the Senate for three 
nominees who were unconstitutionally appointed, according to the 
Federal Circuit Court in Washington, DC. For that, the majority leader 
proposes to use the nuclear option? It is a sad, sad commentary on 
today's Senate.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. A sad day in the Senate created by the Republicans. This 
rules change--he keeps talking about the rules change. The Presiding 
Officer knows the Constitution is very clear. It is clear that there is 
one paragraph that says treaties take a two-thirds vote. In that same 
paragraph, how many votes does it take to confirm a nomination? A 
simple majority. That is in our Constitution. Since 1977 rules have 
been changed in this body 17 times--not by fancy things done by the 
Rules Committee but right here in the Senate.
  We have three people who are qualified, and if Republicans want to 
avoid a problem--obviously they don't. What they want to do is 
continue.
  Can you imagine--the American people are looking at this and saying: 
The Republican leader thinks the Senate is going just fine, the status 
quo is good? Look at any poll. The Gallup Poll did one. Eighty-six 
percent of the American people--why do they think things are bad? 
Because of gridlock, not doing important things. Sure we were able to 
get a few things done, but I have been here a while, and we have done 
some good things this year, but we should be doing lots of good things, 
not focused on immigration and a farm bill that has been passed twice, 
on a postal bill that we passed once and we haven't passed again. We 
talk a lot about WRDA. I am glad we got that done, WRDA, and I am not 
going to denigrate my friend, the chairman of that committee, but that 
bill is a mere shadow of its former self because of what the 
Republicans have done to make a mockery of what goes on here.
  All we want is for the President of the United States, whoever that 
might be, Democrat or Republican, to be able to have the team he wants 
as contemplated in that document called the Constitution of the United 
States. That is not asking too much.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MERKLEY. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER (Mr. King). Without objection, it is so 
ordered.
  Mr. MERKLEY. Are there any rules currently on how long one may speak?
  The PRESIDING OFFICER. Senators may speak for up to 10 minutes each.
  Mr. MERKLEY. I have been listening carefully to the debate that has 
been taking place here on the floor, and the esteemed minority leader 
had a couple of phrases that he used any number of times.
  One of those was that this debate is about whether to break the rules 
in order to change the rules, and the second phrase, also involving the 
word ``break,'' was to repeatedly say to the majority leader: You have 
broken your word. Those are very powerful words. My mother always told 
me that when people start saying things like that, it is because they 
are at a loss for a real argument, but I found them disturbing. I found 
both of those phrases disturbing. I found them disturbing because they 
are so at odds with what this conversation is really about.
  We are here in the midst of a constitutional crisis. Our Constitution 
was set up with a balance of powers between three coequal branches, 
with checks and balances. Never in their wildest dreams did the 
crafters of our Constitution envision that a minority of the Senate, a 
minority of one Chamber, would undermine the functioning of the other 
two branches. In fact, they were very deliberate--very, very 
deliberate--in their determination that there not be such a 
possibility. They laid out with clarity that advise and consent on 
treaties took a supermajority, but when it came to the other branches, 
the judicial branch and executive branch have a de facto simple 
majority standard in the Constitution. They are in exactly the same 
paragraph, so you can compare them, one to the other.
  Our Founders talked about this, and they talked about it because they 
had the experience with the Continental Congress in which a 
supermajority had caused all sorts of difficulties. So I thought I 
would remind us a little bit about the framework they laid out in the 
Constitution.
  Alexander Hamilton said on a supermajority it would lead to ``tedious 
delays; continual negotiation and intrigue; contemptible compromises of 
the public good.'' Alexander Hamilton felt so strongly that there 
should be a simple majority standard. He wasn't alone. We have Madison, 
who wrote that ``the fundamental principle of free

[[Page 11294]]

government would be reversed'' if a supermajority was the functioning 
principle.
  So we have this system of coequal branches with simple majority votes 
on nominations as a check against extraordinarily ill-advised 
nominations by the executive branch. Indeed, that has been the 
tradition throughout our Nation's history--simple majority votes on a 
timely basis on nominations, interspersed by very, very occasional 
blockades put up by exercising the will to filibuster but very rare use 
of that until the last few years. Indeed, it was just a few years ago 
that our Republican colleagues were in charge, and they were upset by a 
small number of filibusters by the Democrats on judicial nominees, and 
they came to this floor and they said that is not acceptable. They 
reminded us of this constitutional history, of this constitutional 
framework, and they asked for a deal. The deal they asked for was they 
wouldn't change the rules if Democrats wouldn't filibuster the 
nominations, and that deal was struck.
  But now the tide has turned. The parties are reversed, and suddenly 
that deal is not holding because we see filibuster after filibuster 
after filibuster obstructing the ability of the executive branch--with 
a President reelected by the citizens of the United States--and with 
vacancies in the judicial branch, with judicial emergencies from hither 
to yon, with the largest number of judicial vacancies and the largest 
number of executive branch appointments piled up. Yet my colleagues on 
the other side are saying: The Senate is functioning just fine. Only 
about 8 percent of the American people think the Senate is functioning 
fine, and those 8 percent one would have to recognize are just not 
paying attention.
  This is not the Senate I knew as a young man, coming here as an 
intern and sitting up in the staff gallery for Senator Hatfield. I 
would come down to the floor to brief him on the amendments and the 
debate before each vote. At that time, we had simple up-or-down votes 
on nominations, with rare exception. Even if we turn the clock back to 
the time of Lyndon B. Johnson, in the 6 years when Lyndon B. Johnson 
was majority leader in this Chamber, only once in his 6 years did he 
need to file a motion in order to close debate, and that wasn't just on 
executive nominations but a combination of executive nominations, 
judicial nominations and legislation--just once in 6 years.
  Senator Reid, in his first 6 years as majority leader, had to file 
391 motions. This cloture process is designed to take a long period of 
time, often up to 1 week, because it was envisioned it would be used 
rarely.
  So here we are with the minority in the Senate doing deep damage to 
the executive branch, deep damage to the judiciary by the abuse of the 
filibuster, creating an imbalance or creating unequal branches of 
government that is completely out of sync with the constitutional 
vision. Are we, as Members of this body--having taken a pledge to 
uphold the Constitution and having that responsibility--going to allow 
this deep abuse of the constitutional vision of equal branches? I don't 
think anyone who takes their pledge seriously can come to this floor 
and argue that a small group of the Senate should be able to do deep 
damage to the other branches.
  The Republican leader said the strategy is to break the rules in 
order to change the rules. I thought I would just remind him that--and 
I believe he came here in 1985--since the time he first arrived, there 
have been many times the Senate changed the precedent on the 
application of rules. Using a simple majority, the Senate changed the 
application of a rule. It was done once in December 1985, once in 
September of 1986, then twice in 1987, once in 1995, twice in 1996, 
once in 1999, and once in the year 2000 and in the year 2011. That is 
10 times during the time the Republican leader has been a Member of 
this Senate.
  The minority leader described this as a nuclear option. So using his 
reasoning, there have been 10 nuclear option bombs exploded in this 
Chamber during the time he has served here. Yet I didn't hear that 
mentioned in the presentation he put forward. It might interest the 
Republican leader to recall that of these instances, where under the 
standard of a simple majority the application of a rule was changed 
during the time he has served here, that seven of those times were 
under Republican leadership. It has occurred three times under 
Democratic leadership. So seven times under Republican leadership the 
type of action we are discussing--of reorienting the application of a 
rule in order to make the Senate work better--and three times under 
Democratic leadership. All of these instances occurred during the time 
he has served in this Chamber.
  So to come to the floor and talk about breaking the rules in order to 
change the rules, the Republican leader would have to go back and talk 
about those 10 times and explain how 7 of them happened under 
Republican leadership, but somehow that doesn't qualify as being the 
same standard. I think it is important to get away from the 
overinflation of the rhetoric that has been put forward.
  The second piece that bothered me in this debate was saying the 
majority leader broke his word. I think everyone who is party to a deal 
understands there are two parties to a deal and those two parties need 
to uphold their half. So I would remind folks about what the Republican 
leader's half of that deal was. I put on this chart, ``The January 
Pledge.'' This is the pledge made by the Republican leader on the floor 
of this Chamber. He said: ``Senate Republicans will continue to work 
with the majority to process nominations, consistent with the norms and 
traditions of the Senate.''
  What are those norms and traditions? Those norms and traditions are 
that nominations are able to be voted on in a modest period of time 
with up-or-down votes. If we should have any doubt about what the 
minority leader meant about norms and traditions, we can go to the 
Republican policy document from 2005. Here we have the last major 
debate over the abuse of the filibuster--Democrats in the minority, 
Republicans in the majority--and this is what the Republican policy 
argument said:

       This breakdown in Senate norms is profound. There is now a 
     risk that the Senate is creating a new 60-vote confirmation 
     standard. The Constitution plainly requires no more than a 
     majority vote to confirm any executive nomination, but some 
     Senators have shown that they are determined to override this 
     constitutional standard.

  I will stop quoting there for a minute and just note this was a very 
clear delineation of the constitutional standard during the time the 
Republican leader was in this Chamber, in 2005--not so many years ago. 
The document goes on to say:

       Thus, if the Senate does not act . . . to restore the 
     Constitution's simple majority standard, it could be 
     plausibly argued that a precedent has been set by the 
     Senate's acquiescence in a 60-vote threshold for nominations.

  The document goes on to talk about the role of the Constitution in 
advise and consent:

       One way that Senators can restore the Senate's traditional 
     understanding of its advice and consent responsibility is to 
     employ the ``constitutional option''--an exercise of a Senate 
     majority's power under the Constitution to define Senate 
     practices and procedures. . . . Exercising the constitutional 
     option in response to judicial nomination filibusters would 
     restore the Senate to its longstanding norms and practices.

  So if we want to know what norms and traditions meant in this pledge 
made in January, it is all laid out in extensive detail in the 
Republican policy document, and it is laid out in the history of the 
United States. It means a modest amount of time to have a vote after a 
nomination comes out of committee, with a simple up-or-down vote, with 
rare exception.
  But that is not what we have had. So I would ask the Republican 
leader to engage in a discussion about our constitutional role, much 
like the debate the Republicans led in 2005. Because otherwise we are 
just casting aspersions, and the citizens looking in wonder at what 
happened to that great deliberative institution--the Senate.
  This standard of processing nominations according to the norms and 
traditions of the Senate did not materialize

[[Page 11295]]

after January. Within days, there was the first ever--first ever in 
U.S. history--filibuster of a nominee for Defense Secretary. 
Ironically, that nominee was former Republican Senator Chuck Hagel.
  Within a short period of time after that, we had a letter from 44 
Senators saying they would not allow a vote on any nominee for the 
Consumer Financial Protection Bureau. Any nominee? That is the advice 
and consent role embodied in the Constitution that calls for a simple 
up-or-down vote? They are going to use the filibuster to oppose any 
nominee, regardless of the person's qualifications?
  That is actually using the filibuster in a whole new way to basically 
say we don't have the votes to undo the Consumer Financial Protection 
Bureau--which, by the way, is charged with stopping predatory practices 
that undermine the success of families--so instead of trying to get rid 
of this institution that protects families--and I am not sure where 
family values fits in there--we are, instead, going to prevent anyone 
from exercising leadership authority and sitting in the Director's 
chair at the CFPB.
  I see my colleague is here and waiting to speak, so I will conclude 
with this. Let's recognize that the deal laid out in January just 
didn't work. It didn't work. It doesn't make sense to keep saying who 
didn't make it work. Certainly, from my perspective on this side of the 
aisle, this issue of continuing to work to process nominations 
consistent with norms and traditions didn't work. My colleagues across 
the aisle have a different concept of why it didn't work. But at the 
heart of it, as they argued in 2005, there is a constitutional vision 
for the use of advice and consent, and that constitutional vision is in 
deep trouble. It is not permission for one coequal branch to undermine 
the other two branches.
  That is why the Members of this body need to have this debate. It is 
why I am on the floor now, and it is why we need to wrestle with 
restoring the role of this Senate, the proper role in the nomination 
process.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coons). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, we are in an unpleasant time, indeed, in 
the Senate. I hate to see it happen. This is a robust body. We are at 
each other. We defend the interests of our constituents and try to 
advocate for the values we share, and it is a contentious place at 
times, but we usually work our way through that. I would just say there 
is no reason we should be at this point today.
  I do believe the majority leader has been abusing the powers of his 
office. I remain dreadfully concerned and firmly believe this 
consistent practice of using the tactics of refusing to consider 
certain bills and filling the tree to keep Members of the Senate from 
having a vote is an abuse maybe even larger than the issue we are 
dealing with today. In fact, it is larger.
  For example, we have been debating the question of interest rates 
going up on student loans and how to fix that. There are two different 
bills, two different ideas. One of those bills the majority leader 
supports. He has brought it up and he wants to vote on it, but he 
doesn't want to vote on anything else. But there are a number of 
Senators on this side, along with Democratic Senators who agree with 
them in a bipartisan way, who have come up with a better bill--I think 
it is better--and we want to vote on it. But, the majority leader 
refused to allow us to vote on that alternative. Time and time again, 
he prevents us from voting on legislation and from engaging in a full 
and open amendment process.
  So in the Senate, on an important issue, on an extremely well-
thought-out alternative plan that would fix the student loan interest 
rate issue, the majority leader basically says: No, you don't get a 
vote.
  This is a change in the history of the Senate, and it goes on every 
day. Senators have to plead with the majority leader to get a vote on 
an amendment. This is not the way the Senate should be. It is a very 
big deal, it goes on every day, and it is time to stop it.
  So now we have this idea that nominations have to be moved through at 
the pace the majority leader would like them to be. Many of these are, 
frankly, very controversial for very significant reasons. In my 
opinion, the President's nominations in his second term have been less 
capable than those from his first. Many of them have serious weaknesses 
that need to be examined, and many of them should never be approved. 
Let me talk about one now that is about to come to the floor. We ought 
to debate that one. The Constitution provides the Senate should advise 
and consent on nominations.
  We have to consent to a nomination. That is the question we are 
dealing with in many ways here.
  We come down to the big issue, though. In essence, it takes two-
thirds--67 votes--to change the rules of the Senate. Because of a fight 
over three nominations that were illegally appointed, as determined by 
the Court of Appeals for the District of Columbia, and the President 
wants to continue to have them serve--which Senator McConnell and many 
on this side oppose and don't think they should be confirmed--what the 
majority leader is proposing to do is to say, in essence, you can't 
block a vote on those nominations and require 60 votes; there only has 
to be 51.
  He will propose that, and what will happen? The Parliamentarian of 
the Senate will rule that Senator McConnell is correct, that the 
nomination is not prepared to be voted on because 60 votes weren't 
obtained, and the majority leader loses.
  Then what does he intend to do? He intends to look to the Chair and 
say, I appeal the ruling of the Chair, and expects all his Members to 
presumably line up behind him and vote to overrule the rules of the 
Senate, overrule the independent Parliamentarian of the Senate. That is 
what he is talking about doing.
  So when Senator McConnell says he wants to break the rules to change 
the rules, that is exactly what he means. That is exactly what we are 
talking about.
  Stability in the Senate requires us not to change the rules willy-
nilly when we have a tempest in a teapot, as these nominations are. 
There will no doubt be times when things get so intense over big issues 
that actions get taken, and history will record whether they are wise. 
But we don't need to be changing the rules of the Senate every time it 
becomes inconvenient for the majority leader. He has already done this 
once.
  He changed the rules of the Senate when Senator DeMint was making a 
motion to get a vote, after he was denied the right to have a vote. The 
majority leader filled the tree, wouldn't allow votes, and he used the 
postcloture technique to force at least a vote relevant to that issue. 
The majority leader got tired of it, appealed it; the Chair ruled for 
Senator DeMint, and so he asked his colleagues to join him in 
overruling the Chair and changing the rules of the Senate. They backed 
him on that and that was done.
  This gets to be a habit around here, and our side is not happy with 
the power grab from the top, from the majority leader, and how it is 
impacting everyday life in the Senate, and we are not going to go 
quietly on this one. It is a big deal and the Senate should avoid it.
  I am pleased that at least we will have a conference Monday in which 
we can talk about the issue openly amongst ourselves and see if we can 
avoid what could be a serious constitutional crisis. I believe we need 
to cool our heads down a bit and understand that the nature of the 
Senate is the majority does not get everything it wants.
  I was here, and I remember how the judges' situation developed. 
Judges have traditionally not been filibustered. There have been a few 
efforts at delaying votes and people were held up, but systematic 
filibusters were not at all part of the tradition of the Senate.
  After President Bush was elected in 2000, the Democrats went to 
conference at a retreat somewhere. They had Marcia Greenberger, 
Laurence Tribe, and Cass Sunstein, three well-known liberal lawyers and 
professors. They

[[Page 11296]]

came out, and then announced, We are changing the ground rules of 
confirmation.
  The vast majority of President Bush's early nominees to the Court of 
Appeals were blocked. Highly qualified nominees, with great skill and 
ability, there was no basis to oppose them on merit. It went on for 
over 2 years, and others were being blocked.
  As a result, then-Leader Frist threatened this kind of event. At the 
end, cooler heads prevailed, a compromise was reached, and the 
agreement was that we would not filibuster Federal judges unless 
extraordinary circumstances existed. Normally, we would give an up-or-
down vote to Federal judges. That is the way that was settled.
  I would say with regard to the nominations we are looking at now, 
these three illegally appointed nominees present a pretty extraordinary 
circumstance.
  We shouldn't sit here and go quietly when the President of the United 
States--without any legal basis, in my opinion--makes a recess 
appointment to avoid the confirmation process, and now we object to 
these people being confirmed after they were in office. After they were 
in office, after the court ruled they were illegally appointed, they 
continued to sit and continued to vote on issues important to 
Americans. They should not have done that. They should have followed 
the court's order, even if they previously thought they were legally 
appointed--which they weren't, pretty clearly, from the beginning--it 
was never close to being a legitimate recess appointment. I am worried 
about this. Hopefully cool heads will come together and work this out.
  With regard to the traditional norms of the Senate that Senator 
McConnell talked about, I have been in the Senate long before holds 
have been put on nominations. You don't move the nominations until you 
get questions answered relative to their appointment. Nominations don't 
just go smoothly and get voted the next week. There are a lot of 
reasons for that process.
  This was raised at the beginning of the year. These issues were 
discussed and an agreement was reached. As part of the agreement, 
Senator Reid said he wouldn't use the nuclear option if the Republicans 
agreed to certain things, and an agreement was reached. Senators Lamar 
Alexander and John McCain and others were in on the agreement and an 
agreement was reached.
  Senator Merkley openly says now, Well, the agreement didn't work. 
Well, there is an agreement out there, it was agreed to, and Senator 
Reid is now changing that agreement--changing the commitment he made in 
exchange for getting concessions from this side.
  This isn't the breaking of a word like, You elect me majority leader 
and everything is going to be sweet and nice. This was a negotiated 
agreement of great intensity.
  Senator Merkley and several other Senators were involved in the 
discussions, and an agreement was reached. The essence of it was 
concessions were made by the Republican side, and the Democratic leader 
accepted those concessions and promised he wouldn't use the nuclear 
option. Now he is threatening to use the nuclear option.
  The nomination of Mr. Jones, to be Director of the Alcohol, Tobacco, 
and Firearms, a highly important agency is supposed to happen today. 
Maybe in committee they determined to move it through. I was a U.S. 
attorney for 12 years. The closest agency you deal with is the FBI, and 
you have to deal with them on a regular basis. They know how well you 
do your job, they know whether you are functioning well, and there is 
normally a good relationship and you try not to be critical of one 
another. This is what Mr. Oswald, former Special Agent in Charge of the 
FBI, wrote about Mr. Jones:

       As a retired FBI senior executive, I am one of the few 
     voices able to publicly express our complete discontent with 
     Mr. Jones' ineffective leadership and poor service provided 
     to federal law enforcement community without fear of 
     retaliation or retribution from him.

  Because he is no longer in office, he doesn't have any fear. He is 
telling the truth. He says he felt ``morally compelled to make [the] 
committee aware of Mr. Jones' atrocious professional reputation within 
the federal law enforcement community in Minnesota's Twin Cities 
area.''
  This is the guy they want to promote to the head of the Alcohol, 
Tobacco, and Firearms.
  The letter describes the frustration with Mr. Jones' ``ineffective 
leadership and his lack of concern about matters and issues brought to 
his attention by each of us.''
  Each of us, being the other Federal agencies, like the Drug 
Enforcement Administration, the Secret Service, or the IRS.

       Our common dissatisfaction with Jones' poor leadership, 
     pathetic interaction, and insufficient prosecution support 
     was the theme of many discussion during my tenure. . . . He 
     consistently reacted defensively and often spoke to us 
     disrespectfully, and occasionally with disdain.

  Then he went on to note that after he became the U.S. Attorney in 
Minnesota, they prosecuted significantly less cases of every type. 
Forty percent fewer defendants were charged in 2012, when Mr. Jones was 
the U.S. attorney, than the previous year because he wouldn't prosecute 
the cases, and the Federal investigative agencies were up in arms about 
it.
  This retired SAC tells the truth. I think he should be listened to. 
But President Obama is determined to make him the head of the ATF, 
involving leadership of gun enforcement, firearms, and weapons charges 
all over America.
  We have already had the Fast and Furious scandal. So shouldn't the 
Senate ask questions about this? Should we rubberstamp this? They are 
rushing it through committee, trying to do it right now: Move him on. 
Get him confirmed. And anybody who stands in the way? Tough luck.
  The majority leader is going to drive it through. He gets to decide 
who gets confirmed around here. He gets to decide what the rules are in 
the Senate. They are forgetting the effort they led in the last part of 
President Bush's term when they blocked John Bolton to be Ambassador to 
the United Nations. He was blocked by full filibuster by the Democratic 
Members of the Senate. The rules weren't changed then, and the rules 
are not to be changed now.
  We have a conference coming up Monday. Let's see if we can't work 
through it. Let's see if we can't work in a way that restores the 
Senate. The Senate is that saucer that is supposed to provide a cooling 
opportunity to slow down a rush to judgment. Should the Senate be 
compelled to confirm three members to lower official appointments in 
the Federal Government who were illegally appointed and continued to 
serve in their offices after they were so found? I don't think so. I 
don't think so. I don't think that dispute is such that it would lead 
the majority leader to break the rules of the Senate, to override the 
plain rules of the Senate through a procedure, which is not proper and 
very dangerous, to get his way on this matter.
  There are other things that could go wrong if this goes forward. My 
impression from talking to my colleagues is that there are very deep 
feelings about this and people have had about enough of this. There 
have been all kinds of abuses here about how we conduct our business. 
We are not going to keep accepting that because when you accept that, 
the loyal opposition is eroded over a period of time consistently in 
its ability to exercise the little powers it has, and then the Senate 
is weakened. Then the Senate's role as the body that slows down 
problems, that stands up to ATF nominations, that stands up to NLRB 
illegal appointments, is eroded. We do not need to do that.
  I know there is a lot of feeling here.
  I see my colleague Senator Hatch. He has been through this for a long 
time and has seen these disputes. I have seen a few myself in my 16 
years--not nearly as long as Senator Hatch, who chaired the Judiciary 
Committee and has been ranking member on that committee. But what I 
will say is that this situation does not justify the nuclear option. It 
does not. It is a dangerous thing, and it can be addictive

[[Page 11297]]

for the majority leader--every time he is confronted by someone 
legitimately using the rules of the Senate to raise questions about the 
majority's agenda, that they are overruled and the rule is changed so 
the majority leader can advance his agenda. That is what the issue is 
about.
  I ask my Democratic colleagues, let's slow down, let's not go this 
way. Maybe this conference Monday will help us reach an accord and 
avoid a very dangerous event for the history of the Senate.
  Mr. MERKLEY. Will my colleague yield for a question?
  Mr. SESSIONS. I yield for a question.
  Mr. MERKLEY. I have in front of me the list of the number of times 
the application of a rule was changed from the precedent. It was done 
each time under a simple majority structure, and it was done 10 times 
since 1985.
  I pointed out earlier--I am not sure if my colleague was on the 
floor--that seven of these times this was done under Republican 
leadership. So seven times Republicans came to the floor and said: We 
are going to change the application of a rule under redirection of the 
precedent or overruling of the precedent. I want to ask if the Senator 
is familiar with that because the way he was speaking, it sounded as if 
this conversation is about something--a procedure that had never been 
done. Yet it was done seven times since 1985 by my Republican 
colleagues.
  Mr. SESSIONS. I said it is a dangerous trend and it can be addictive 
and it can undermine the nature of the Senate. I did not say it never 
happened. But to my knowledge, I would like for the Senator to list for 
me the number of times since 1985 the majority leader has gone before 
the Parliamentarian and the Presiding Officer and actually altered the 
rules by a vote of the Senate, overruling the Chair?
  Mr. MERKLEY. I will be happy to do that. I have that in front of me. 
Let's start on December 11, 1985:

       The Senate allows a conference report on the basis that 
     everything included is ``relevant,'' even though multiple 
     provisions have been ruled to violate the scope of the 
     conference committee's authority.

  The ruling of the Chair changing the precedent was reversed.
  This happened again in September-- Mr. SESSIONS. Was there a vote on 
that?
  Mr. MERKLEY. Yes.
  Mr. SESSIONS. How many votes? I am curious. I know it was done 
before. The big time that I recall, I say to Senator Merkley, was the 
one over Federal judges, similar to this. At the end, cooler heads 
prevailed, a compromise was reached, and a very significant rule of the 
Senate was not altered.
  Some of these could be technical rulings of the Chair that are not 
that significant, but I am interested in seeing what others the Senator 
might mention. I am particularly interested if there was an actual vote 
of the body, by the Senate.
  Mr. MERKLEY. Yes. I can assure my colleague that each and every one 
of these involved an actual vote, and each and every one of these 10 
occasions did reverse the previous precedent. That happens in two 
fashions.
  Mr. SESSIONS. Will the Senator offer that for the record?
  Mr. MERKLEY. Absolutely.
  Mr. SESSIONS. I would like to look at that and see where we are.
  Senator Hatch is here now.
  Mr. MERKLEY. I will get the Senator a personal copy.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       September 25, 1986: The Senate establishes that procedural 
     motions or requests do not constitute speeches for purposes 
     of the two-speech rule (ruling reversed 5-92).
       December 11, 1985: The Senate allows a conference report on 
     the basis that everything included is ``relevant,'' even 
     though multiple provisions have been ruled to violate the 
     scope of the conference committee's authority (ruling 
     reversed 27-68).
       April 28, 1987: The Senate establishes that the Presiding 
     Officer should defer to the Budget Committee Chair on whether 
     an amendment violates Section 201(i) of the Budget Act 
     (ruling sustained 50-46).
       May 13, 1987: The Senate establishes that a Senator may not 
     decline to vote when it is done for the purposes of delaying 
     the announcement of that vote (ruling reversed 46-54).
       March 16, 1995: The Senate allows legislating on 
     appropriations bills (ruling reversed 42-57) [this precedent 
     was reversed in 1999 by resolution].
       May 23, 1996: The Senate establishes that a budget 
     resolution with reconciliation instructions for a measure 
     increasing the deficit is appropriate (ruling sustained 53-
     47).
       October 3, 1996: The Senate broadens the scope of allowable 
     material in conference reports (ruling reversed 39-56) [this 
     precedent was reversed in 2000 by language in an 
     appropriations bill].
       June 16, 1999: The Senate establishes that a motion to 
     recommit a bill with instructions to report back an amendment 
     had to be filed before the amendment filing deadline (ruling 
     sustained 60-39).
       May 17, 2000: The Senate establishes that it is the Chair's 
     prerogative to rule out of order nongermane precatory (sense-
     of-the-Senate or -of-Congress) amendments (ruling reversed 
     45-54).
       October 6, 2011: The Senate establishes that motions to 
     suspend the rules in order to consider non-germane amendments 
     post cloture are dilatory and not allowed (ruling reversed 
     48-51).

  Mr. SESSIONS. Reclaiming the floor, Mr. President, I appreciate the 
Senator's sharing that. We will study them. It is absolutely a practice 
that can occur, but it is a very dangerous practice. The Senate is a 
place of a certain amount of collegiality and a certain amount of good 
judgment and understanding and respect for the body. Sometimes you can 
carry out a procedure that may be dubious but within the realm of 
acceptable procedures, and sometimes you can feel and understand that 
is a dangerous alteration of the precedents of the Senate. That is 
where I am afraid we are with this vote.
  Mr. HATCH. Will the Senator yield?
  Mr. SESSIONS. I will yield for a question from Senator Hatch.
  The PRESIDING OFFICER (Mr. Begich). The Senator from Utah.
  Mr. HATCH. It makes a difference between issues where the Chair has 
been overruled rather than the nuclear option which changes the rule, 
which breaks the rule and changes it. That is a significant difference. 
That is what is being done here by a mere majority vote.
  The majority wants to change a very important rule. If we go down 
that road, I am going to tell you, the majority is going to be a very 
sorry majority in the future because they may be a minority. This body 
has always protected the rights of the minority, whether Democratic or 
Republican. It is what made it the greatest body in the world. We are 
about to destroy that for no good reason.
  Mr. SESSIONS. Mr. President, I will be pleased to yield to the 
Senator from Utah and look forward to hearing his remarks. He is a man 
of great expertise on this particular issue.
  Mr. HATCH. I thank my colleague.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Let me say that there are differences in how the rules are 
interpreted from time to time. From time to time the Chair has been 
overruled. I have been here when it has. I have only been here 37 
years, and I have never seen anything like this in the whole 37 years.
  I have to say that this is a dangerous thing to do. I predict that if 
our colleagues on the other side--all of whom I care for--if they do 
this, they are going to rue the day they did it. It is that simple. 
They can say: Oh, it is just an eensy-teensy little change. It is not. 
It is a monumental change. There is going to be a tremendous price to 
pay for it, to the detriment of our country--it is just that simple--
and certainly to the detriment of the Senate, the greatest deliberative 
body in the world.
  It is hard for me to understand, over two NLRB partisans whom the 
President just recess-appointed, ignoring the rules of the Senate, and 
over Cordray, who probably under any other circumstances would get 
through easily, but there is very good reason why he should not go 
through this way.


                               ObamaCare

  Mr. President, I rise to speak on what is known as ObamaCare and what 
the Obama administration did last week, hoping the American people were 
not paying attention, that impacts huge parts of the President's 
signature domestic policy achievement as our

[[Page 11298]]

Nation was celebrating the Fourth of July. I am talking about the 
administration's decision to suspend for a year--conveniently past next 
year's election, which is very interesting to me--enforcing what is 
known as the employer mandate, the requirement that businesses offer 
insurance to their employees or face the penalty. And then a rule was 
issued by the Department of Health and Human Services last Friday 
stating that it would not verify people's incomes before giving out 
premium subsidies. My gosh, we have fraud all over the Federal 
Government, and they do something this stupid and undesirable?
  I am certainly glad employers got some relief. It is quite a message 
from the Obama administration, quite a message the Obama administration 
is sending the struggling families and individuals who will get no 
relief from this monstrosity of a law and its burdensome individual 
mandate tax. Republicans in Congress believe this is unfair as such. 
Senator Thune spearheaded a letter to President Obama, which I 
enthusiastically signed, urging him to permanently delay the whole 
entire law and treat individuals the way he is going to treat 
businesses. I am glad it has been put over for businesses, even though 
I question why it was put over for this next year. But why not do it 
for the individuals who are suffering from it? If it is good for the 
goose, it should be good for the gander. Shouldn't the Obama 
administration give the same relief to everyone?
  Furthermore, I would like to point out that we have always known this 
law was a budget buster. With the employer mandate delayed, I have 
joined with a group of Republican committee leaders in the House and 
Senate asking for the Congressional Budget Office to get us an updated 
cost estimate of the bill. I can't say what CBO will find, but I have a 
feeling that ObamaCare's price tag will continue to soar. It is already 
off the charts. Everybody knows it is an abominable bill, and that 
includes Democrats as well.
  What happened last week is just the latest in a series of 
confirmations that the President's health care is simply not ready for 
prime time. Unfortunately, it is the American people who pay the price 
for the largest expansion of government in generations. They will pay 
the price through higher taxes. They will pay the price through higher 
health care costs and insurance costs. They will pay the price with 
more and more government regulations and debt. They will pay the price 
when they are forced into what are called exchanges that are simply not 
ready and unlikely to be ready in the near future.
  This law, which was jammed through Congress on a purely partisan 
vote, is simply too big to work. The lesson is that asking government 
to do this much--when those of us who fought it tooth and nail said at 
the time it amounts to a government takeover of one-sixth of the 
American economy--will not succeed and cannot succeed. That is a lesson 
the Obama administration doesn't seem to get, doubling down on selling 
ObamaCare that is less popular today than when the President signed it 
into law. In fact, the White House is rolling out a massive 
multibillion-dollar PR campaign using taxpayer dollars to try to 
convince the American people that it is all the administration 
promised, shaking down the health care industry, professional sports 
teams, and movie stars in the process.
  Where is it going to end? What is the matter with this 
administration? Can't they just live with the facts and acknowledge 
that this is a dog? In fact, a cynic might argue that ObamaCare was 
designed to fail in order for the Federal Government to step in for a 
true, European-style single-payer system that many on the extreme left 
wanted all along. In other words, socialized medicine with the Federal 
Government controlling every aspect of our lives from a medicine and 
health-care standpoint.
  Now it seems as though every day we learn about more and more 
problems with ObamaCare. What do we know about it less than 4 months 
out from the open enrollment in the Federal and State health insurance 
exchanges which are supposed to occur on October 1?
  We have heard from countless experts who say the exchanges will be 
rife with issues once they are supposedly up and running. Indeed, those 
experts have predicted everything from ``glitches'' to ``consumer 
horror stories.''
  Two GAO reports released in June confirm that the Obama 
administration is ill-equipped for the implementation of both the 
federally facilitated health insurance exchange and the so-called Small 
Business Health Option Program Exchange. And that is two reports from 
GAO saying the administration is ill-equipped to implement those 
federally facilitated health insurance exchanges. Citing the programs' 
delays and missed deadlines, the GAO concluded that there is potential 
for ``implementation challenges going forward.''
  While we have been hearing about the problems with the exchanges for 
months now, we have not heard an explanation from the administration as 
to how--despite all of these reports--all of this is supposed to be up 
and running by October 1. I hope I am wrong, but I have a feeling come 
October millions of Americans are going to find themselves unable to 
navigate these waters.
  Sadly, the problems with the exchanges aren't the only difficulties 
with ObamaCare. Over the last several months we have heard numerous 
reports about the problems at the Internal Revenue Service. Let's face 
it. The IRS has never been beloved. Indeed, millions of Americans 
loathe and fear the IRS, and the recent scandal surrounding the 
targeting of conservative groups has not helped the agency's reputation 
either.
  At the heart of this recent scandal, there are claims by the IRS that 
they were simply unable to manage the increased workload that came with 
an influx of applications of groups applying for tax exempt status 
under 501(c)(4). According to the IRS officials, the increase in 
applications were so massive that examiners had to find new ways to 
categorize and screen the documents submitted by these groups. They say 
that was the main cause of the targeting scandal.
  Let's assume these arguments are true for a moment. When all is said 
and done, the number of applications of groups applying for 501(c)(4) 
status increased by 1,700 over a 4-year period. The IRS was apparently 
so flummoxed by an increase of less than 2,000 applications that it had 
to resort to inappropriate and potentially illegal measures. Give me a 
break.
  If this is true, the country is in real trouble. If the IRS cannot 
manage an increase of 1,700 applications of groups applying for tax 
exempt status, how will it handle its significant role in implementing 
ObamaCare or even handling the so-called premium supports? Under the 
so-called Affordable Care Act, premium subsidies--complex tax credits 
designed to defray the costs of purchasing health insurance based on 
household income--will go to an estimated 7 million tax filers 
according to the Joint Committee on Taxation. Within 2 years, that 
number will nearly double. And they can't take care of 1,700 
applications for 501(c)(4) that are basically and relatively simple?
  In other words, the number of premium subsidy applications will jump 
from zero to 7 million in just 1 year. That is 7 million applications 
for people across a wide income spectrum claiming subsidies that did 
not exist before. Only God knows how many of those claims are going to 
be made fraudulently since they don't seem to be able to handle them.
  Basically, the Obama administration would have us believe that while 
a 4-year increase of 1,700 applications for tax exempt status was 
enough to give the agency fits, it is perfectly capable of handling 7 
million new filings for a brandnew health care entitlement. On top of 
that, they want us to believe they can continue processing these 
subsidies as they double in number over the first 2 years. Needless to 
say, I am more than a bit skeptical.
  Of course, it is difficult to figure out exactly what the Obama 
administration expects the American people to

[[Page 11299]]

believe when it comes to the IRS implementing ObamaCare. That is 
because despite all the upcoming deadlines, it is still not clear how 
the agency plans to fulfill this new responsibility; and despite 
numerous Congressional inquiries--as well as those from GAO and the 
Treasury Inspector General for Tax Administration, or TIGTA--no one 
really knows how the Affordable Care Act office in the IRS is going to 
work.
  One of the few things we know for sure is that the person who headed 
the IRS division that was responsible for targeting conservative 
organizations now heads the division responsible for implementing 
ObamaCare. How lucky can we be? That is hardly a comforting thought. 
Make no mistake, processing these complex premium subsidies will not be 
a walk in the park. These credits are both advanceable and refundable--
meaning they will be paid out first and verified later. Some have 
referred to this process as ``pay and chase.''
  Many of my Democratic friends have referred to tax expenditures they 
don't like as ``spending through the Tax Code.'' That label is usually 
not accurate, but when we are talking about refundable credits, it is 
precisely on target. The problem is that over the years, the IRS has 
struggled to administer these types of tax credits. One needs to look 
no further than the earned income tax credit, or the EITC, to see the 
inherent problems with refundable credits.
  In a report issued this past April, TIGTA found that 21 to 25 percent 
of total EITC payments were improperly given out. If you assume that 
same percentage of improper payments will apply to the $1 trillion we 
will spend on ObamaCare premium subsidies--which is fair, due to the 
fact that the IRS has no way of verifying household income, and now the 
Department of Health and Human Services said it will not even try to 
verify a person's income--we could be looking at $210 billion to $250 
billion in improper payments over the next 10 years. When is it going 
to end? When are the taxpayers going to get a break? This 
administration doesn't seem to know how to get us there.
  Some of that will be the result of fraud and some of it will simply 
be due to filing errors. Either way, if the IRS's track record with 
refundable credits is any indication, we are looking at hundreds of 
billions of dollars in improper payments when it comes to the ObamaCare 
premium subsidies. Now with the Obama administration abandoning any 
income verification, we are left with a policy that is little more than 
an honor system for hundreds of billions of dollars of premium 
subsidies.
  I will say it again: An honor system at a time when the Finance 
Committee and the administration are trying to crack down on improper 
government payments both within the tax system and our Federal health 
programs. If the definition of insanity is doing the same thing over 
and over expecting different results, then this is the definition of 
insanity on steroids. Couple that with the already soaring pricetag of 
the subsidies and we have a disaster on our hands.
  In his fiscal year 2012 budget, President Obama put the cost of the 
first year of premium subsidies at nearly $16 billion. In his most 
recent budget, that number soared to nearly $22 billion without any 
additional explanation.
  Why are these costs going up? There are a number of possible 
explanations. For example, there is the fact that due to the cost 
imposed by ObamaCare, more and more employers are opting to drop 
coverage, thereby pushing more and more people into the exchanges 
subsidized by these very same tax credits. At the same time, we know in 
order to avoid providing health care benefits, many employers are 
moving employees into part-time work, which, once again, pushes more 
people into receiving premium subsidies in order to purchase health 
insurance.
  Of course, there is the looming fact that despite the President's 
claims that his health care law would reduce the cost of health 
insurance, the cost of insurance premiums has continued to skyrocket. 
All of these are potential explanations of why the estimated cost of 
the premium subsidies has gone up in the President's budget.
  Yesterday a group of my Senate colleagues and I sent a letter to 
Secretary Lew and Secretary Sebelius asking for an in-depth analysis as 
to how much of a burden the new health insurance exchanges will be on 
the Federal budget given the skyrocketing pricetag of these premium 
subsidies. This is a reasonable question given the magnitude of 
America's debt.
  Between the dramatically increasing costs, the daunting tasks of 
administering these credits through the Tax Code, and now the 
administration is pulling back antifraud requirements, the chances for 
success are extraordinarily slim.
  As I said earlier, this law is too big, too cumbersome, too 
inclusive, and too costly to work. I have never supported it, and for 
good reasons. What is most disconcerting is that it is the millions of 
Americans who work hard every day to pay their bills, put food on their 
tables, and send their children to school who will bear this burden. 
For their sake, the best solution is a permanent delay of the whole 
law--and not just for the business sector but for everybody. That is 
what we need to do.
  We have to get rid of this pay-and-chase system that is going on 
right now where the government just pays in accordance under the honor 
code they described and later have to chase those who have defrauded 
the government. It is just unbelievable.
  Well, look at the premium subsidies. These are tax credits in 
ObamaCare designed to defray the cost of purchasing health insurance. 
These are going to go to some 7 million tax filers in households 
earning as much as $94,000 a year. How many people who are making much 
more than that will claim they are making less than $94,000 a year? 
Well, if we look at the past, there is going to be a lot of them.
  What is the IRS going to be able to do? They will not be able to 
approve it because they don't have the mechanisms to do it. My gosh.
  The administration said they are just going to rely on the filer to 
self-report their income to get access to the credits. Give us a break. 
My gosh. Like I said, the projected figure for subsidy expenditures has 
gone from $16 billion to $22 billion in just a couple of years. It is 
mind-boggling that they get away with it. It is mind-boggling that the 
American people have not risen up in rebellion against this stupid 
bill, and it is mind-boggling to me how my colleagues on the other side 
continue to defend this monstrosity.
  Every day we hear about more and more problems with it. Every day we 
hear about more and more costs. Every day we hear about more and more 
fraud. Every day we hear about people in the government who don't 
understand it and can't figure it out.
  When are we going to grow up and realize this is a dog and it is 
hurting America? I will be honest. I believe within a year or two the 
President is going to throw his hands in the air and say: This is not 
working. We have to go to a single-payer system--in other words, 
socialized medicine where the government will control all of our lives 
and will determine who gets health care and who doesn't. I have to say 
that is where we are headed. I hope I am proven wrong in the future, 
but I know I am going to be proven right. I can just see it. If it 
happens, it will have been done by our friends on the other side--100 
percent--who voted for this dog. They don't seem to recognize it is 
eating America alive.
  I don't understand it. I love my colleagues on the other side. We 
have been friends for a long time. I have been here 37 years. There are 
only two Senators in that 37-year period whom I thought had no real 
reason to be here. I have loved everybody else, some more than others, 
of course.
  The fact is what is happening has happened because of the Democratic 
side of this floor, and we have to get some heroes over there to start 
standing and saying: We are not going down that road. We are not going 
to become socialism revisited, even though many of their supporters 
want that, as is evident to anybody who looks at it. When is our media 
going to take up and realize this is what is happening to our

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country and it is wrecking it. On top of that, we have this absolutely 
idiotic desire on the part of my friends on the other side to change 
the rules--to break the rule to change it.
  I yield the floor.
  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. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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