[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 12609-12615]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF KENT YOSHIHO HIROZAWA TO BE A MEMBER OF THE NATIONAL 
                         LABOR RELATIONS BOARD

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read as follows:

       Nomination of Kent Yoshiho Hirozawa, of New York, to be a 
     Member of the National Labor Relations Board.


                             Cloture Motion

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

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Kent Yoshiho Hirozawa, of New York, to be a Member of the 
     National Labor Relations Board.
         Harry Reid, Tom Harkin, Jack Reed, Sheldon Whitehouse, 
           Christopher A. Coons, Robert P. Casey, Jr., Benjamin L. 
           Cardin, Patrick J. Leahy, Joe Manchin III, Elizabeth 
           Warren, Debbie Stabenow, Carl Levin, Angus S. King, 
           Jr., Richard J. Durbin, Charles E. Schumer, Amy 
           Klobuchar, Richard Blumenthal.


[[Page 12610]]


  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Kent Yoshiho Hirozawa, of New York, to be a member of the 
National Labor Relations Board for the term of 5 years, expiring August 
27, 2016, shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Dakota (Ms. 
Heitkamp) is necessarily absent.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from New Jersey (Mr. Chiesa).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 64, nays 34, as follows:

                      [Rollcall Vote No. 189 Ex.]

                                YEAS--64

     Alexander
     Ayotte
     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Blunt
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Coons
     Corker
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Heinrich
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--34

     Barrasso
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Lee
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter

                             NOT VOTING--2

     Chiesa
     Heitkamp
       
  The PRESIDING OFFICER. On this vote, the yeas are 64, the nays are 
34. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  Cloture having been invoked, pursuant to S. Res. 15 of the 113th 
Congress, there will now be up to 8 hours of postcloture consideration 
of the nomination equally divided in the usual form.
  The Senator from Iowa.
  Mr. HARKIN. Mr. President, I understand we are now in postcloture 
debate on this nominee. I understand there is up to 8 hours that can be 
consumed for that purpose, if I am not mistaken.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HARKIN. I certainly hope we don't have to take that much time. 
For this nominee and the other four to follow, I am hopeful we can get 
through them today and get the nominees to the President before we 
leave here this evening.
  Today is a day that I and many of my colleagues have long waited for. 
Because of the bipartisan deal reached on the President's nominees, it 
looks as though we finally have a path forward to confirm a full slate 
of nominees to the National Labor Relations Board. A fully confirmed, 
fully functional board will be a huge step forward for workers and 
employers in our country, and this will be the first time in over a 
decade this has happened.
  Over 75 years ago Congress enacted the National Labor Relations Act, 
guaranteeing American workers the right to form and join a union and to 
bargain for a better life. For both union and nonunion workers alike, 
the act provides for essential protections. It gives workers a voice in 
the workplace, allowing them to join together and speak out for fair 
wages, good benefits, and safe working conditions. These rights ensure 
that the people who do the real work in this country see the benefits 
when our economy grows and aren't mistreated or put at risk on the job.
  The National Labor Relations Board is the guardian of these 
fundamental rights. Workers themselves cannot enforce the National 
Labor Relations Act; the Board is the only place where people can go if 
they have been treated unfairly and denied the basic protections the 
law provides. Thus, the Board plays a vital role in vindicating 
workers' rights. In the past 10 years the NLRB has secured 
opportunities for reinstatement for 22,544 employees who were unjustly 
fired. It has also recovered more than $1 billion on behalf of workers 
whose rights were violated in the last decade.
  The Board does not just protect the rights of workers and unions; it 
also provides relief and remedies to our Nation's employers. The Board 
is an employer's only recourse if a union commences a wildcat strike or 
refuses to bargain in good faith during negotiations. The NLRB also 
helps numerous businesses resolve disputes efficiently. For example, 
when two unions picketed Walmart in 2012, Walmart filed a claim with 
the NLRB, and the NLRB negotiated a settlement. So by preventing labor 
disputes that could disrupt our economy, the work that the Board does 
is vital to every worker and every business across the Nation.
  Earlier this year I received a letter from 32 management-side and 15 
union-side labor attorneys from across the country who made this point 
particularly well. It urged the swift confirmation of a full package of 
five NLRB nominees and said:

       While we differ in our views over the decisions and actions 
     of the NLRB over the years, we do agree that our clients' 
     interests are best served by the stability and certainty a 
     full, confirmed Board will bring to the field of labor-
     management relations.

  I could not agree more. Confirming these nominees swiftly is vitally 
important because the National Labor Relations Board must have a quorum 
of three Board members to act. If there are less than three Board 
members at any time, the Board cannot issue decisions and essentially 
must shut down. Although the Board currently has three members, 
Chairman Pearce's term expires on August 27--next month. At that point 
the Labor Board would be unable to function unless we confirm 
additional members. Now, that is more than just an administrative 
headache. It would be a tragedy that denies justice to working men and 
women across the country. So it is imperative that we act to avoid this 
and keep the Board open for work.
  Up until recent times, all of us in Congress agreed that the Board 
should function for the good of our country and our economy, but in the 
last few years that understanding has broken down. As I said, it has 
been a decade since the Board has had five Senate-confirmed members. It 
is not that qualified people have not been nominated, because they 
have. The problem is that a few of my colleagues on the other side of 
the aisle--I am not saying everyone, but a very vocal minority--have 
been trying to use the nominations process to undermine the mission of 
the National Labor Relations Board.
  They, first of all, do not like the National Labor Relations Act, but 
they know they could never repeal it outright. So what is their 
solution, this vocal minority on the Republican side? Keep the NLRB 
inoperable by refusing to confirm nominees regardless of their 
qualifications. In this case, one of my Republican colleagues announced 
his intention to filibuster the NLRB nominees 6 days before the 
nominations were announced, and he openly admitted his intention was to 
shut down the agency.
  We have seen lots of nominees deemed unacceptable simply because they 
have worked on behalf of workers or unions and they support our system 
of collective bargaining. These nominees have been accused of being 
biased and called unfit to serve because they worked for labor unions 
or were lawyers for labor unions. But I would like to point out what 
the National Labor Relations Act--the law--actually says. I have often 
quoted from the National Labor Relations Act on this point, and I will 
do so again right now. Here is what the law says:

       It is declared to be the policy of the United States to 
     eliminate the causes of certain

[[Page 12611]]

     substantial obstructions to the free flow of commerce and to 
     mitigate and eliminate these obstructions when they have 
     occurred by encouraging the practice and procedure of 
     collective bargaining and by protecting the exercise by 
     workers of full freedom of association, self-organization, 
     and designation of representatives of their own choosing, for 
     the purpose of negotiating the terms and conditions of their 
     employment or other mutual aid or protection.

  That is what the law says. The purpose is, again, to encourage ``the 
practice and procedure of collective bargaining'' for the good of our 
workers, for the good of our economy, and for the good of our Nation.
  So if we have a nominee who comes up for the Board who supports 
collective bargaining, I would think that nominee would be more 
qualified, not less qualified, to serve on the Board because that 
nominee understands what the law says. So we should be seeking nominees 
who are, in the words of one of the nominees before us today, not pro-
union, not pro-worker or pro-management, but ``pro-Act''--``pro-Act.'' 
If you are pro-act, the act says that we should be ``encouraging the 
practice and procedure of collective bargaining and by protecting the 
exercise by workers of full freedom of association, self-organization, 
and designation of representatives of their own choosing.'' That is 
what the law says.
  I am optimistic that the nominees before us today will bring this 
perspective to their work at the Board. All five nominees have diverse 
backgrounds and are deeply steeped in labor and employment law. While I 
certainly do not agree with the politics or perhaps the ideology of 
each nominee, it cannot be disputed that this is a competent and 
experienced group of lawyers. Given their diverse backgrounds and 
qualifications, there is no reason this package of nominees should not 
be confirmed with strong bipartisan support.
  All five of these nominees have been thoroughly vetted. For the two 
most recent nominees--Kent Hirozawa and Nancy Schiffer--the vetting 
process has been quick, but it has been thorough. They have submitted 
all of the paperwork that we receive for our nominees. They have 
appeared before our committee in a hearing, answered any questions. 
They have met with staff for both sides, and they have answered all the 
written questions posed by members of my committee. They have 
demonstrated themselves to be impressively qualified and capable, and I 
look forward to their future service on the Board.
  So I believe the time has come to start a new chapter for the NLRB. 
It is time to ratchet down the political rhetoric that has recently 
haunted this agency and let the dedicated public servants who work 
there do their jobs. Indeed, I hope today's votes mark a new beginning 
for the Board, with a new energy and vitality, a new spirit of 
collaboration. A revitalized NLRB is a critical part of our continued 
efforts to build a strong economy and a strong middle class. It is long 
past time to put the Board back in business and to tone down the 
rhetoric.
  I say to my friends on the other side--again, a vocal minority--
certainly they can vote against the nominees. That is their right. That 
is their privilege. But do not use the nomination process to try to 
shut down the Board or to thwart the implementation of the National 
Labor Relations Act.
  I am sure there were times when a majority of the Board was appointed 
by Republican Presidents and they were probably more promanagement. I 
cannot think of one right now, but I am sure they probably made some 
decisions that I would not be in favor of. But they did it openly. 
There are also times under a Democratic President when the Board would 
probably have three members who would be more from the labor side than 
management side. But that is the ebb and flow.
  Quite frankly, for most of the times in the past, even though 
Republican Presidents had put nominees on the Board who were probably 
more promanagement or came from the management side--they would have 
three of those and then two from the worker or labor side--they still 
ran the Board in a nonpartisan fashion and reached agreements in an 
open fashion that were implementing the National Labor Relations Act. I 
would be hard pressed to think of a time when the Board acted in 
contradiction to what the act actually says.
  Until recently--and this has just broken down in the last few years 
when President Obama's nominees to the Board, in the first instance, 
were filibustered when the President had to give recess appointments to 
nominees. Of course, a recess appointment can only last so long, and 
then that person has to leave the Board. As I said, there was a threat 
by a Member on the Republican side to filibuster nominees before they 
were even sent down. That means the Board would have been unable to 
operate. So the President then gave a recess appointment to two 
nominees to keep the Board functioning. That then found its way into 
the courts.
  We have a couple of courts that decided the President did not have 
the power to do a recess appointment the way he did it. Other courts 
have taken different pathways. So that set of facts in that case is 
winding its way to the Supreme Court. It probably will be decided some 
time next year. But that is what happens when people do not let 
nominees who are fully qualified--fully qualified--come to the floor to 
get an up-or-down vote.
  So I am very pleased this agreement that was reached a couple weeks 
ago to not filibuster nominees included the National Labor Relations 
Board. So we have an agreement from the Republican side that they will 
not filibuster these nominees. We have five of them. This is the first, 
Mr. Hirozawa. I am hopeful that, again, since they have been thoroughly 
vetted, we can move ahead expeditiously to vote on them and that we 
will not take the full 8 hours to debate these nominees and that each 
one of them--each one would have 8 hours. But, hopefully, we can 
collapse that and have the votes on the nominees at some time later 
this afternoon, and, as I said, turn a new chapter in the NLRB. Put 
them down there on the Board and let them do their work, and tone down 
the political rhetoric a little bit on the National Labor Relations 
Board.
  Mr. President, I ask unanimous consent that time during all 
postcloture quorum calls on the Hirozawa nomination be charged equally 
to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. 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. JOHANNS. 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. JOHANNS. Mr. President, I ask unanimous consent that I be allowed 
to speak for 5 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Budget Control Act

  Mr. JOHANNS. Mr. President, as we begin our final week of legislative 
activity prior to the August work period, I rise today to discuss the 
fiscal challenges that will await us on our return. When the Senate 
gavels back into session on September 9, we will be only 3 short weeks 
away from the end of the fiscal year. We will have only 15 business 
days to reach an agreement on all 12 appropriations bills and avoid a 
government shutdown.
  Unfortunately, our progress toward reaching this goal has been less 
than stellar. The transportation-housing appropriations bill we are 
currently considering is the first of 12 bills that has even been 
brought to the Senate floor. Consider this: We cannot even agree to 
comply with the spending limits mandated under current law. We are 
headed for a big multitrain pileup.
  Last Congress, the Senate and the House made a promise to the 
American people--made a promise about a basic level of fiscal 
constraint on our appropriations process; not enough, but a step in the 
right direction. As a part of the Budget Control Act, which passed with 
bipartisan support and was signed

[[Page 12612]]

by the President, we committed to capping appropriations spending at 
certain levels for each of the next 10 years.
  Less than a year ago, the majority leader emphatically proclaimed 
them binding when he said:

       We passed the Budget Control Act. We have agreed to all of 
     those numbers. They are done. They are agreed to.

  In only the second year of this 10-year schedule, the 12 
appropriation bills are mandated to spend no more than $967 billion. 
That is a huge number to almost everyone. It is simply a whole lot of 
spending, almost $3 billion a day. But my colleagues on the other side 
want to spend even more. In fact, they want to spend well over $1 
trillion this year.
  You see, they want to pretend the Budget Control Act never passed and 
was never signed into law. They want to keep on spending as if there is 
some kind of alternative reality. But sadly that is not the case. Our 
Nation's deficit is still too large. We are still miles away from a 
balanced budget. The national debt continues on a course toward 
disaster. Yet, apparently, we are going to ignore the appropriations 
caps we all agreed to 2 years ago--not by an insignificant amount, an 
additional $91 billion above the legal limit in the next fiscal year 
alone.
  As a new member of the Appropriations Committee, I have been 
surprised to watch week after week bills being advanced that simply 
ignore current law. With a $17 trillion national debt, we cannot simply 
imagine our way out of this crisis. But by ignoring the Budget Control 
Act, that is exactly what we are attempting to do.
  I continue to believe very strongly that we should be preparing bills 
that are consistent with current law, abiding by the spending caps we 
voted for and were signed by the President. I think we should even do 
more than that, but complying with the current law is the bare minimum.
  What does all of this mean? Who gets hurt if we ignore the BCA caps? 
Well, ignoring the BCA spending levels is not free money we can print 
down at the Treasury Department. Spending over the BCA caps simply sets 
the stage for yet another round of sequester cuts. We all remember how 
popular that was beginning this year. The administration officials 
claimed our health, our safety, our well-being, were in the balance as 
they traveled the country, threatening services such as Head Start, 
food safety inspectors, and massive delays at airports because of the 
indiscriminate, across-the-board spending cuts.
  That is exactly what we are going to see in a few weeks because the 
majority would rather wash their hands of the responsibility to honor 
the caps and continue spending as though actions do not matter. But 
that is exactly the Senate's plan, spend $91 billion over what the law 
allows. When $91 billion worth of across-the-board cuts kick in, they 
hope the outcry from the American people is loud enough to convince us 
here in Congress to add the additional spending to our national debt. 
In my judgment, that is no way to run a railroad, but that seems to be 
the plan: keep spending us right into another sequester, ignore the 
consequences, and hope for the best.
  It simply boggles the mind, especially when you consider all but two 
Senate Democrats on the Appropriations Committee supported--I emphasize 
supported--the increased level of spending restraint in the BCA.
  Instead, we should have been using this time as an opportunity to 
more thoughtfully reduce spending before the end of the fiscal year. 
That is exactly what President Obama says he wants, when he says 
Congress should use a scalpel to tame our budget problems, not an axe, 
in across-the-board spending cuts. We can responsibly meet the $967 
billion spending target in current law, but we have to try. But instead 
of seizing the opportunity, we are once again shirking our 
responsibility in the hopes that no one will notice. That is 
disappointing to the American people. By exceeding the caps, we are 
violating yet another commitment we have made to them to get our fiscal 
house in order. You see, the American people figured this out long ago. 
Washington simply spends too much and, most importantly, spends too 
much of their own money. As their elected representatives, we should 
not ignore this. I am hopeful we can change course, take this 
opportunity and ensure that our spending bills total no more than what 
we promised months ago.
  Come October 1, the American people will have the opportunity to see 
whether we have met that challenge. I hope for the sake of the country 
they get better news than what appears today.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Schatz). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ALEXANDER. 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. ALEXANDER. I ask unanimous consent to speak as if in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Presidential Nominations

  Mr. ALEXANDER. Mr. President, this week the Senate is voting on five 
of the President's nominations for membership on the National Labor 
Relations Board. I expect all five to receive up-or-down votes, as they 
generally do, and I expect all five to be confirmed. The Board will 
then have a full complement, with a Democratic majority of three and 
two Republican members.
  I would like to review for a moment what has happened and how we got 
to this spot because it is an important moment in the history of our 
ability as a country to maintain the checks and balances and certain 
separations of power among the various branches of government and 
especially to restrain the Executive, which has been an important part 
of our country's history.
  In January 2012 the President nominated two individuals to be members 
of the National Labor Relations Board using his recess-appointment 
power. He has that power in the Constitution. The only problem was that 
the Senate wasn't in recess--at least that was our view. The Senate was 
in a 3-day pro forma session. A 3-day pro forma session is a device 
that was employed by Senator Reid, the distinguished majority leader, 
when Bush was President, and he did it to keep President Bush from 
using his recess-appointment power when the Senate was in recess.
  Most of our Presidents have chafed under the restraints we have 
placed upon our Executive. President Bush didn't like that, but he 
respected it, and President Bush never made recess appointments while 
the Senate was in session. But President Obama did--on January 4, 2012. 
Senate Republicans objected strongly to that. After a great deal of 
discussion, we decided to support a lawsuit challenging the 
appointments. That lawsuit went before the D.C. Circuit Court of 
Appeals, and the Circuit Court of Appeals agreed with our position and 
said in effect that the President could not make a recess appointment 
when the Senate itself had determined it was in session.
  Since then there have been two other decisions by other federal 
courts of appeals that have said what the President did on January 4, 
2012, was unconstitutional. The case will come before the Supreme Court 
this next term. No one knows what decision the Supreme Court will make, 
but my sense would be that the Supreme Court will say to this President 
or to any President that, Mr. President, you can't use your 
constitutional power to make a recess appointment at a time when the 
Senate is not in recess.
  I said earlier that Presidents have chafed under these restraints on 
the executive branch. That has been true ever since the days of George 
Washington. George Washington imposed his own modesty and restraint 
upon the American character when he resigned his commission after the 
Revolutionary War, when he stepped down after two terms as President 
and went back to Mount Vernon, when he asked to be called Mr. President 
instead of Your Excellency. Ever since then we have had many strong 
Presidents. They haven't all liked the idea that Washington also helped 
write a constitution

[[Page 12613]]

that created a congress and a bill of rights, and the whole purpose of 
that was to restrain the Executive. After all, our revolution was 
against a king, and most of our Founders--not all of them, but the 
majority of the drafters of the Constitution didn't want a king of the 
United States, they wanted a president of the United States.
  One of the most important checks upon the power of the Executive is 
the Senate's power to advise and consent, the power to review. About 
1,000 Presidential nominations come to us, and it takes a while to 
confirm them. Sometimes it takes longer than the nominees think it 
should. I have repeated many times on this floor that when the first 
President Bush nominated me to be Education Secretary and the Senator 
from Ohio held up my nomination for 3 months, I didn't think that was 
such a good idea, but the Senate had the power to do it because the 
Constitution restrains the Executive. Unfortunately, this President 
didn't seem to read that chapter in American history because we have 
seen during this President's time repeated efforts to circumvent the 
constitutional checks on the Executive.
  This administration has appointed more czars than the Romanovs had. 
That is the way you get around the nomination process. This 
administration's excellent Education Secretary has used a simple waiver 
authority in effect to create a national school board. When Congress 
says we don't want to appropriate money to implement ObamaCare, the 
Health and Human Services Secretary says: Well, if Congress won't do 
it, I will do it anyway; I will just go out and raise private money and 
do it. Then we have recess appointments being made when the Senate is 
not in recess. That is unconstitutional. If that could happen, the 
Senate could adjourn for lunch and come back and we would have a new 
Supreme Court Justice because the President said we were in recess.
  So what is happening this week with these National Labor Relations 
Board nominees has a special significance in our constitutional history 
because not only did Republicans support a lawsuit challenging the 
appointments, which we are winning and the case has been won in two 
other Federal courts--but the President, after much discussion, has 
withdrawn his two unconstitutionally appointed nominees.
  I suggested that he do this in May when we had a markup of the five 
nominees the President sent. I voted for three--the Democratic Chairman 
and the two Republicans--and I voted against the two who were 
unconstitutionally appointed. They were well-qualified people. That 
wasn't the issue. The issue was that the Senate needed a way to express 
its objection to this unconstitutional action by the Executive.
  I suggested that what the President should do is withdraw those two 
nominees and send us two new ones in the normal process--people who had 
not stayed on after a Federal court decided they were 
unconstitutionally there. These two unconstitutionally appointed 
nominees have participated in more than 1,000 cases. These cases are 
all subject to being vacated because there was no constitutional 
quorum.
  It leaves quite a mess in our labor laws. But the President withdrew 
those two and now we are, this week, doing what the Senate normally 
does. We are considering in the normal process his new nominees.
  I am voting, as I said, for the two Republicans and the Chairman. The 
Chairman was not unconstitutionally appointed. He did not continue to 
serve as an unconstitutionally appointed person, since he was not so 
appointed, so I voted for him in committee. I do not agree with the 
Chairman and his view of labor laws, but I will have to take that up 
during the next election. Elections have consequences, and when we 
elect the President of the United States, he normally appoints people 
who agree with him.
  I am also voting for having an up-or-down vote. We almost always do 
that with the President's nominees. There have only been a few times in 
our history when we have not. We have never failed to have an up-or-
down vote on a Supreme Court Justice after they have come to the floor. 
We have never failed to have an up-or-down vote on a district court 
judge after they have come to the floor; the same in terms of circuit 
courts. We never did, until Democrats started filibustering President 
Bush's judges about 10 years ago when I came to the Senate. We all know 
that story.
  But normally we have an up-or-down vote, and we will be doing that 
this week on the President's five nominees. I am voting against two of 
the nominees when that up-or-down vote comes, and I wish to explain 
why.
  One is Mr. Hirozawa and the other is Ms. Schiffer. Both of them have 
excellent legal backgrounds. But the problem is I am not persuaded--I 
hope I will be proven wrong--that they will be able to transfer their 
positions of advocacy to positions of adjudication; that they can be 
impartial when employers come before them.
  Employers as well as employees have a right, when they come before 
the National Labor Relations Board, to expect that all five members, 
whether Republicans or Democrats, from whatever background they might 
have, will look at the case and decide it in an impartial way. It may 
be possible that Mr. Hirozawa and Ms. Schiffer can do that, but I am 
not persuaded that is true, and so while I am voting that they have up-
or-down votes, I am not voting for them.
  The President has nominated for the Board three different individuals 
who were employed directly by major labor unions. The first was Craig 
Becker, who was counsel for two unions, and whose nomination was 
rejected by a bipartisan vote in 2010. The second was Mr. Griffin. The 
third is Ms. Schiffer.
  I asked Ms. Schiffer at her hearing if she could remember other 
examples of an administration stocking the National Labor Relations 
Board with organized labor employees and she could not think of 
examples and I could not either. Over the last several years, the 
National Labor Relations Board seems to have veered away from 
impartiality. Instead of preserving a level playing field and 
protecting the carefully balanced rights of all parties, it has shown 
favoritism toward organized labor leadership and very little interest 
in the rights of individual employers or individual employees who want 
to exercise their rights not to join a union.
  In fairness, I have to admit this politicization of the National 
Labor Relations Board has occurred both under Republican and Democratic 
administrations, but I think appointing a person directly from a high 
level job within a major labor union is not an example of trying to 
move away from that trend.
  The trend is causing confusion. One labor law professor at a 
nationally recognized law school recently said she cannot even use her 
labor law textbook anymore. She has to resort to handing out NLRB 
decisions to explain the law because they are changing it so much. The 
NLRB has ventured into rulemaking with two new efforts, both of which 
have been stalled by the Federal courts.
  In August 2011, the Board issued a new rule requiring employers to 
post a biased employee rights poster in the workplace and making it an 
unfair labor practice to fail to do so. Two separate Federal courts 
have struck down the rule because it exceeded statutory authority.
  In December 2011, the Board issued a new rule shortening the time in 
which a union election is held, otherwise known as the ambush elections 
rule. The D.C. Circuit Court struck down this rule on the grounds it 
lacked a quorum, and the NLRB is appealing the decision.
  So far, this administration's NLRB has sought to change the rules for 
determining bargaining units, the process for certifying a 
representation election, the legal obligation of employers to withhold 
dues from employees' paychecks, even when there is no valid collective 
bargaining agreement in place, the validity of arbitration provisions 
in employment contracts, the legality of numerous well-intentioned 
employee handbook provisions, the rules governing employee discipline 
when there is no valid collective bargaining agreement in place, the 
rules governing the confidentiality of employee witness

[[Page 12614]]

statements given during a legitimate investigation, the policy against 
forcing nonunion member employees to pay for union lobbying expenses, 
the rules governing employers' rights to limit access to their 
property, and attempting to create an entirely new employer obligation 
and unfair labor practice through the poster requirement struck down by 
multiple Federal appellate courts.
  The effect of all of these changes seems to me to tilt the playing 
field in favor of organized labor instead of impartiality, which is the 
directive of the statute. So fairness and impartiality is what I am 
looking for in any NLRB nominee. These two nominees do not pass this 
test. That is why I plan to oppose their nominations.
  But the most important message from this week's debate is this: The 
Senate is saying, not just to this President but to any President, 
Republican and Democrat, that you may not abuse your constitutional 
power of recess appointments by making appointments when the Senate 
itself determines it is not in recess. To do so is an affront to the 
separation of powers. It undermines checks and balances that were 
placed upon the Executive at the beginning of our country as a way of 
preserving our liberties. That is an important step in the history of 
constitutional law in this country, and I am glad to see it has been 
done in this way.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Heinrich). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCAIN. 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. McCAIN. I ask unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Littoral Combat Ship Program

  Mr. McCAIN. Mr. President, over the last few years, I have spoken on 
the floor about how the Department of Defense procures major weapons 
systems--a system that is, to a large degree, broken, unfortunately. It 
is now even more important. With defense funding likely to be 
constrained to reduced levels in the coming years, our role as 
legislators overseeing major defense acquisition programs to make sure 
they are efficient and effective is as important today as it has ever 
been--indeed, even more so.
  A recently released Government Accountability Office--GAO--report 
that is highly critical of the Navy's Littoral Combat Ship Program 
brings me to the floor today. On that program, the Navy plans to spend 
over $40 billion to buy a total of 52 seaframes and 64 so-called 
``plug-and-play'' mission modules. These are modules that would be 
moved on and off, depending on the mission in which the Littoral Combat 
Ship is engaged. The combined capability of those modules with the 
seaframes is supposed to give these ships their intended lethality.
  Until recently, my main concern with this program has been the 
unbridled growth in the cost to build the seaframes of the lead ships: 
the Freedom--the steel hull version--and the Independence, which is an 
aluminum trimaran version. The Navy appears to have addressed that 
problem. While the cost to build the seaframes for the follow-ships is 
still about double the program's original, overly optimistic cost 
estimate--which is not unusual--the cost to complete the construction 
appears to have stabilized at about $450 million each.
  Today I am concerned about another very serious problem: that the 
Navy will buy too many of these ships before the combination of their 
seaframes, with their interchangeable mission modules, has been proven 
capable of performing the missions these ships are supposed to perform. 
In other words, the Navy will not know whether this Littoral Combat 
Ship meets the combatant commanders' operational requirements until 
after it has procured more than half of the 52 planned ships. This is 
particularly troubling inasmuch as the Littoral Combat Ship fleet will 
comprise more than one-third of the Navy's surface combatant ships.
  The Littoral Combat Ships' stated primary missions are antisubmarine 
warfare, mine countermeasures, and surface warfare against small boats, 
especially in the littorals. These three primary missions appear 
oriented toward countering, among other things, some of the littoral or 
coastal anti-access/area-denial capabilities that have been fielded in 
recent years by potential adversaries.
  The Navy took delivery of the first of two ships--the Freedom and 
Independence--more than 3 years ago. But the ship called Freedom 
actually deployed, albeit with limited capability, to Singapore in 
March and has experienced many of the technical challenges normally 
associated with a prototype ship. The decision to deploy the ship 
Freedom prior to the completion of critical developmental and 
operational testing may be good salesmanship on the part of the Navy, 
but the current plan to buy more than half of the total Littoral Combat 
Ship fleet prior to the completion of operational testing plainly 
contradicts defense acquisition guidelines and best procurement 
practices--and amounts to a case of ``buy before you fly,'' to borrow a 
phrase from aircraft acquisitions.
  It also increases the risk that the program will incur additional 
costs to backfit already built Littoral Combat Ships with expensive 
design changes identified through late testing and evaluation or, 
worse, operational use.
  As is the case in several other major defense acquisition programs, 
the problem here is ``excessive concurrency''--that is, an overlap 
between development and production that exposes the program to a high 
risk of costly retrofits to earlier units in the production run. It 
sounds simple, but this is the problem that for years rendered the 
Joint Strike Fighter Program effectively unexecutable and that led to 
the terminations of the Army's multibillion-dollar Future Combat 
Systems Program and the Air Force's Expeditionary Combat Support System 
Program.
  As to the Littoral Combat Ship, the General Accountability Office 
spelled out this problem in the report it released just a few days ago. 
According to the GAO:

       There are significant unknowns related to key LCS 
     operations and support concepts and the relative advantages 
     and disadvantages of the two variants. The potential effect 
     of these unknowns on the program is compounded by the Navy's 
     aggressive acquisition strategy. By the time key tests of 
     integrated LCS capability are completed in several years, the 
     Navy will have procured or have under contract more than half 
     of the planned number of ships. Almost half of the planned 
     ships are already under contract, and the Navy plans to award 
     further contracts in 2016, before the Department of Defense 
     makes a decision about full rate production of the ships. The 
     Navy will not be able to demonstrate that mission packages 
     integrated with the seaframes can meet the minimum 
     performance requirements until operational testing for both 
     variants [the Freedom and the Independence] is completed, 
     currently planned for 2019.

  I repeat: 2019.
  I again voice my concern that the Navy plans to purchase many, if not 
most, of the Littoral Combat Ships in the program before knowing 
whether the ships will work as advertised and as needed.
  The GAO report's bottom line recommendation is to limit future 
seaframe and mission module purchases until the LCS Program achieves 
key acquisition and testing milestones that would help make sure that 
the program delivers required combat capability. I agree completely 
with the GAO. GAO's concerns are shared by the Pentagon's independent 
chief tester and even the Navy itself, in an internal report called the 
``OPNAV Report'' or ``Perez Report.'' I highly recommend that anyone 
who has an interest in the Littoral Combat Ship read these reports.
  In terms of the costs to national security and to the taxpayer, we 
simply cannot afford to continue committing unlimited resources to an 
unproven program that may eventually account for more than one-third of 
the surface combatant fleet. The LCS seaframe and mission modules are 
at different

[[Page 12615]]

points along the acquisition life cycle. We need to put a pause on 
additional ship purchases and synchronize the plans for testing the 
seaframes and the mission modules to make sure the Navy is executing a 
coherent acquisition strategy that will deliver combat capability 
responsive to what our operational commanders actually need.
  Also, the Navy has to lay out a clear top-level plan on how these 
ships will be used in response to reasonably foreseeable, relevant 
threats around the world. In other words, it needs to decide the 
concept of operation--or CONOPS--that this ship class will support. 
According to a declassified internal Navy report released last Tuesday, 
``There are two options: Building a CONOPS''--that means concept of 
operations--``to match LCS' current capabilities or modifying the ship 
to better meet the needs of the Theater Commanders.''
  The report goes on to say: ``The ship's current characteristics limit 
operations to a greater extent than envisioned by the CONOPS. . . .'' 
The second option is to ``modify the ship to support the warfighting 
requirements. Our review identified opportunities to modify several of 
the ships' characteristics to more closely align with the intent of the 
original CONOPS.''
  Right now, it seems as though whatever combat capability LCS can 
muster is driving its mission, not the other way around, as in most 
ships. In other words, the Littoral Combat Ship appears to be a ship 
looking for a mission. But just to perform its three currently intended 
primary missions, the Navy is looking at significant design changes and 
increasing Littoral Combat Ships' crew size, even though it has already 
bought about 30 percent of all of the LCS ships it intends to buy. That 
could increase its procurement and life cycle operation and support 
costs well beyond current estimates and strain its affordability. Given 
how many frigates, minesweepers, and patrol crafts the Navy currently 
plans to retire over the next 5 years in favor of Littoral Combat 
Ships, this is particularly troubling.
  Notably, the Government Accountability Office also reports: ``Current 
LCS weapon systems are underperforming and offer little chance of 
survival in a combat scenario.''
  In this regard, the Government Accountability Office appears to agree 
with the Pentagon's chief independent weapons tester. As this top 
Pentagon official has noted, before proceeding beyond early production, 
this program should complete initial operational testing and evaluation 
to determine that it is effective, suitable, and survivable. But LCS is 
not doing so. Why not? We need an answer to that. If, for whatever 
reason, the Navy believes it must deviate from that practice, what plan 
will it put in place to mitigate the resulting concurrency risk?
  Let me be clear. To justify the purchase of the remaining 32 ships in 
the program, the Navy must first provide credible evidence based on 
rigorous, operationally relevant and realistic testing and evaluation, 
that this ship will in fact be able to adequately perform its primary 
stated missions and meet combatant commander requirements. Congress 
must, at a minimum, thoroughly review this program before authorizing 
funding in fiscal year 2015 to buy the next four LCS's and require the 
Secretary of the Navy to certify, on the basis of sound written 
justification arising from sufficient initial operational testing and 
evaluation, that the LCS ships will be able to adequately perform their 
intended missions and provide our operational commanders with the 
combat capability they need.
  The American people are--quite rightly--tired of seeing their 
taxpayer dollars wasted on disastrous defense programs such as the Air 
Force's failed ECSS Program or the Army's Future Combat System Program 
or the Navy's VH-71 Presidential Helicopter Replacement Program. LCS 
must not be allowed to become yet another failed program in an already 
unacceptably long list of amorphous acronyms that--after squandering 
literally billions of taxpayer dollars--have long since lost meaning.
  On the LCS program, the Navy must right its course--today.
  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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________