[Congressional Record (Bound Edition), Volume 161 (2015), Part 7]
[Senate]
[Pages 10017-10020]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF PETER V. NEFFENGER TO BE AN ASSISTANT SECRETARY OF 
                           HOMELAND SECURITY

                                 ______
                                 

   NOMINATION OF DANIEL R. ELLIOTT III TO BE A MEMBER OF THE SURFACE 
                          TRANSPORTATION BOARD

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations en 
bloc, which the clerk will report.
  The senior assistant legislative clerk read the nominations of Peter 
V. Neffenger, of Ohio, to be an Assistant Secretary of Homeland 
Security; and Daniel R. Elliott III, of Ohio, to be a Member of the 
Surface Transportation Board for a term expiring December 31, 2018.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes for debate, equally divided in the usual form.
  The Senator from Delaware.
  Mr. CARPER. Madam President, I am delighted to serve on at least one 
committee with the Presiding Officer, and we have had the opportunity 
of late to have a number of folks come before us who have been 
nominated to serve. One of those is Coast Guard VADM Peter Neffenger, 
and I am delighted today to rise in strong support of Admiral Neffenger 
to serve as the Administrator of the Transportation Security 
Administration, affectionately known as TSA.
  The women and men of TSA work in a very challenging environment to 
keep our aviation system and those of us who use it safe and secure. 
The mission is made all the more challenging by the two difficult and 
diametrically opposed tasks that we ask them to perform. On the one 
hand, we ask the TSA to screen some 1.8 million passengers and their 
luggage every day, 24 hours a day, 365 days a year, without allowing a 
single dangerous individual--not one--or dangerous item to get through. 
On the other hand, we ask TSA to perform the screening as fast as 
possible so that travelers do not miss their flights, luggage and cargo 
get to their destination on time, and everybody is happy. That is what 
we ask them to do.
  TSA's job is, on most days, a thankless one, for which the Agency's 
employees are rarely commended but often criticized. Can TSA do a 
better job? You bet they can. We all can do a better job. We can do a 
better job in the Senate.
  A couple of weeks ago in the Homeland Security and Governmental 
Affairs Committee, for example, we heard from the Department of 
Homeland Security's inspector general about several troubling security 
vulnerabilities at our airports. The IG's findings were more than 
troubling. They were unacceptable.
  TSA can and must do better, but it is not all on them. We can help. 
Our Presiding Officer has oftentimes heard me talk about Home Depot: 
You can do it. We can help. The same is true here. TSA and employees 
can do it. We can help. We have an obligation to do that.
  One of the ways we can help them do their jobs better is by voting in 
support of the President's nominee for TSA Administrator, Admiral Peter 
Neffenger. Admiral Neffenger has served as a commissioned officer in 
the Coast Guard since 1982, assuming the position of

[[Page 10018]]

Vice Commandant in May of 2014. Throughout his nearly 34-year career in 
the U.S. Coast Guard, Admiral Neffenger has displayed exceptional 
leadership skills and the will to confront big challenges. These 
qualities will be very important if he is confirmed--and I hope he will 
be--as our next TSA Administrator.
  Let me just take a moment if I can to share with my colleagues a few 
things that I learned about the admiral during the nominating process. 
First, Admiral Neffenger has a clear vision for TSA. He said the agency 
must strive to be an intelligence driven, risk-based counterterrorism 
agency.
  Second, he has acknowledged the difficult challenges facing TSA today 
but, more importantly, he is committed to addressing them head on and 
striving for perfection. Finally, I learned that he is committed to 
working with Congress, with the inspector general, with GAO--the 
Government Accountability Office--and with the stakeholders to improve 
TSA.
  But you don't have to take my word for it. Admiral Neffenger has 
received the support of all three former Secretaries of Homeland 
Security. One former Secretary of DHS, my old friend Tom Ridge, said 
the nominee's ``experience is broad, his reputation superb, and his 
commitment to public service profound and unquestionable.'' After 
meeting with and getting to know Admiral Neffenger, I could not agree 
more.
  (Mr. JOHNSON assumed the Chair.)
  I thank Chairman Thune and Ranking Member Nelson, who is here on the 
floor today, of the committee on commerce for working closely with our 
committee. The current Presiding Officer of our session here is our 
chairman of homeland security. I thank all of you for working closely 
with our committee on Admiral Neffenger's nomination. I thank Chairman 
Johnson and his staff for acting swiftly on this nomination so that it 
could be considered by the Senate today.
  In less than 2 weeks, we will celebrate the 239th anniversary of our 
Nation's independence. On the days surrounding that celebration, 
millions of Americans will be traveling to spend time with their 
families and friends. We owe it to each of them to have a permanent, 
Senate-confirmed TSA Administrator in place. The President has given us 
a great name, a good man, and a good leader, and I urge my colleagues 
to join me in voting today for Peter Neffenger.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.


                       Tragedy in South Carolina

  Mr. NELSON. Mr. President, before I speak about the two nominees who 
are before us this afternoon, I feel compelled to make a couple of 
brief comments about the tragedy that occurred in South Carolina. 
Sometimes it is difficult to understand why there still seems to be so 
much hatred in the world.
  I remember the President and First Lady of Rwanda telling my wife and 
me what had happened that led up to that genocide back years ago in 
which 1 million people were hacked to death with machetes because of 
the enmity and hatred between two tribes, where people didn't think of 
themselves as Rwandan, they thought of themselves as Hutu or Tutsi. And 
that enmity, that rivalry turned into hatred, and the hatred was 
spurred on by hate-talk over the airwaves. So we know about that sad 
chapter of two peoples who did unimaginable things, and here we see 
this continues.
  I am reminded--because it is emblazoned in my mind's eye--of three 
decades ago and looking out the window of our spacecraft back at Earth. 
From that perspective, when you look back at Earth, which is so 
beautiful and so colorful, so creative as it is suspended in the middle 
of nothing, you don't see racial divisions, you don't see religious 
divisions, and you don't see ethnic divisions. What you see is this 
beautiful creation. My mind's eye carries that view constantly and that 
reminder that we are all in this together. Yet, on the face of the 
Earth, we always want to divide; we always want to separate; we want to 
say: You are different than I, and, as a result, I am going to take it 
out on you. The great genius of America is that we have overcome a lot 
of that by assimilating people of different colors and different races 
and different creeds and different backgrounds and different religions 
all together so that we think of ourselves as Americans first. In the 
world in which the Presiding Officer and I live--the world of 
politics--we have had a lot of that divisiveness, and we ought to be 
thinking of ourselves as Americans instead of as Republicans or 
Democrats.
  This tragedy has riveted the Nation. It has riveted the Nation also 
on the question of the battle flag of the Confederacy.
  This Senator's great-great grandfather, at the time of the Battle of 
Marianna, was well past 50 years. So he had not fought in the Civil 
War, but he was conscripted by the Home Guards to go into the Battle of 
Marianna, where he was taken prisoner and ended up in the northern 
prisoner-of-war camp, where so many of the prisoners died, in Elmira, 
NY. He probably survived because that winter that killed so many--the 
winter of 1864-1865--because he was past 50 years old, they probably 
did not put him in one of those cotton tents on the hillside where 
disease and cold took over.
  But why should we attach our allegiance to a flag that represents 
separation instead of embracing ``out of many, one''; ``In God We 
Trust''; ``e pluribus unum''--``out of many, one''?
  It was announced in the press this afternoon that the Governor of 
South Carolina said: Let's take that battle flag down from the capitol 
grounds in Columbia, SC, and put it in a museum.
  We will see the ensuing fight that occurs with regard to the 
legislature and changing the law. It was a few years ago that a very 
courageous Republican Governor led the effort to take that battle flag 
off the top of the capitol in South Carolina and put it at that 
Confederate monument still on the capitol grounds. That courageous 
Republican Governor lost his next election as a result of that.
  So it is time for us to move on. It is time for us to start thinking 
about unity and coming together. As the Good Book says, come, let us 
reason together.
  Those are the remarks I wanted to make.
  I wish to speak about our two nominees.
  The nominee for TSA whom the Senator from Delaware just spoke about, 
Coast Guard VADM Peter Neffenger, has obviously had a distinguished 
career. His reputation precedes him, with 34 years in a variety of 
capacities. He has expertise in critical areas of crisis management and 
port security, which will serve him well as the head of TSA, and I 
believe the Senate will confirm him today. He was involved in that 
disastrous oilspill in the gulf. He was the national incident commander 
and he helped lead that emergency response. We are still seeing the 
results of that spill, those of us on the gulf coast, and that disaster 
required coordination between all levels of government and all of its 
agencies, as well as the management of people and technology.
  Recently, it has been pointed out, as we receive new information 
about the status and condition of that ruptured well, the incident 
command had to weigh the risk and make difficult choices with a lot of 
incomplete information. Well, he exhibited strong leadership then, and 
I believe he will give that leadership to an agency which needs that 
strong leadership now.
  The next nominee we will consider is Daniel Elliott to be a member of 
the Surface Transportation Board. That is an important agency which 
helps ensure we have a strong and efficient rail network to move goods 
throughout the United States.
  We know how vital the railroad industry is to our economy and getting 
goods to market. We have to do that, and we can't do it with just 
trucks. We need the bulk of the materials to be carried on the rails. 
Decisions made by the Surface Transportation Board have long-lasting 
impacts on our Nation's economic competitiveness, and that is why last 
week the Senate passed the

[[Page 10019]]

Surface Transportation Board Reauthorization Act of 2015--to make the 
agency more efficient and effective.
  We need individuals who are qualified to serve, and Daniel Elliott is 
such an individual. Earlier this year, he was nominated to be 
reappointed as a member of the Board. He previously served as Chairman. 
He also has had a great deal of experience as an attorney, including 
close to two decades litigating in the transportation sector. I ask the 
Senate to join in and support Mr. Elliott's nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. President, I ask unanimous consent to address the 
Senate as in morning business for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        King v. Burwell Decision

  Mr. LANKFORD. Mr. President, in the next couple of days, the Supreme 
Court is going to rule on a case that will have a long-lasting impact 
not only on just what health care is going on in this country but a 
long-lasting impact on how the law is to be interpreted. This is a law 
called the Patient Protection and Affordable Care Act. It was hurried 
through Congress before anyone had time to read it, and it contained 
multiple mistakes and contradictions.
  Already this administration has unilaterally changed this law over 30 
times to try to make it work, including completely rewriting a section 
about who gets the subsidies and who lives underneath the mandates. The 
law says the States that set up an exchange as a State exchange are 
under the subsidies and also have those mandates, but the 
administration claims that, no, it was intended for everyone.
  Within days, the Supreme Court will release their opinion on this 
matter in a case called King v. Burwell and basically answer this one 
question: Does the law mean what the law says or does the law mean what 
the administration interprets it to mean?
  This is not a political problem; this is a health care problem for 
millions of people. These days, the discussion seems to circle around 
on who is to blame. Well, people and families were hurt in the 
ObamaCare chaos because of the way this law was written. They are not 
worried about blame; they are worried about the issues facing their 
family in the days ahead. I have the obligation to do whatever I can to 
protect the people of my State from the harmful effects of this law, 
and there are many.
  The people in my State distinctly heard people say 5 years ago: If 
you like your health care, you can keep it, except for the people who 
were forced off the State-run exchange that already existed in Oklahoma 
and were pushed out--ObamaCare, that is 5 years old, came after Insure 
Oklahoma, which is 10 years old--except for the people who have higher 
deductibles in my State, except for the people who now have higher 
premiums in my State. In Oklahoma this year, the requested rate 
increase for health care is between 11 and 45 percent, depending on the 
plan and the county you live in. This year's rate increase is between 
11 and 45 percent.
  In addition, physician-owned hospitals are trapped in time, not 
allowed to grow larger than what they were 5 years ago. Many people in 
my State like the physician-owned hospitals, and they want to see it 
succeed, instead of being slowly bled to death.
  People struggle to find a job in places in my State because of this 
40-hour requirement that hangs over them. They now have to find two 
jobs, each having about 28 hours, so they can keep up the amount of 
pay. Those individuals were hurt in this process.
  Higher premium costs in the plans will soon come to those in unions 
because they have too good of health care insurance. In the short days 
ahead, union members who have premium health care policies will now get 
a penalty for having insurance that is too good for this 
administration.
  By next year, the Independent Payment Advisory Board kicks off its 
work. Its sole responsibility is to find areas to be able to save money 
by cutting options for patients.
  This is not a mess that can be fixed with one sentence--unless that 
one sentence says ``the bill is repealed.''
  So how do we solve this in the days ahead? Let me lay out a couple of 
ideas before the Senate because very soon we are going to be confronted 
with this when the Supreme Court actually responds.
  First, do the basic things: Do no harm and stop the existing harm. We 
need to transition out of the subsidies and mandates of ObamaCare for 
millions of people who will lose their subsidy when the Court rules in 
favor of the American people and the law of the United States--the 
clear text reading of the law.
  Those individuals who were forced into ObamaCare are not the problem. 
We are not angry at those individuals. They are trapped in a mess that 
was made around them that they were forced into.
  I will never forget a conversation I had with a Democrat in my State 
who was participating in a plan called Insure Oklahoma--who liked their 
insurance plan. It was a subsidized plan from our State. They pulled me 
aside 5 years ago and said: Is there any way I can keep the State-based 
plan I have now? And all I could do is look at him and say, no, you 
can't, actually, and that is not my decision. The Affordable Care Act 
which was passed and the Center for Medicare and Medicaid Services and 
HHS forced the people in my State out of a State-based solution for 
health care and into the larger national solution. Many Oklahomans lost 
their health care coverage and were forced out of it. It was already a 
subsidized system, and now they were taken from one plan and pushed 
into another. Let's do no harm, and let's try to help those individuals 
to be able to find their way back to a plan they like and help in that 
transition.
  The second thing is pretty straightforward: States should have the 
freedom to choose any path to help their citizens. States should not 
have to check in with the Federal Government to ask permission to take 
care of their neighbors and citizens. How ridiculous is that; that a 
State leadership would have to go to the Federal Government to say we 
want to develop a plan to be able to help our own citizens, and the 
Federal Government says, no, they have to check in with us instead.
  This is basically a repeal option for all 50 States. For those States 
that like it, we would say, if you like your ObamaCare, you can keep 
it, and for all the States that don't, they have their own way out to 
be able to take care of their own citizens.
  The tax money that is being supplemented for those came from those 
States. Why shouldn't it be returned to those States and give the 
States the ability to be able to speak to that issue for their own 
citizens. We have to stop this mentality that only the people of 
Washington, DC, love the individuals in each State and want to care for 
them and be able to manage what is happening in that State. That State 
leadership deeply cares about their own citizens. Let's let them step 
up and lead.
  Third is probably the clearest of all of them: People should have the 
freedom to choose any health care plan they want. What a radical idea, 
to actually hand people freedom, to hand people opportunities. Free of 
the mandates and the penalties, patients should be able to pick their 
own doctor and their own plan for their own family.
  I have to say, it is ironic. I hear people call this law either 
ObamaCare or the Affordable Care Act. I am fascinated with that because 
the law's name is the ``Patient Protection and Affordable Care Act.'' 
Over the last 5 years, the words ``patient protection'' seem to have 
disappeared from every part of everyone's vernacular in this. I would 
only have to say, I agree.
  When did we stop saying to the patient: You have no ability to make 
your own choices. I will tell you when. When ObamaCare passed and 
everything became about affordable rather than about patient. We have 
seen the consequences of this.
  In the days ahead, the Supreme Court will rule on this, and I believe

[[Page 10020]]

strongly they are going to rule for the plain text of the law, not just 
about ObamaCare but because they have to make the decision as the 
Supreme Court: Does the law mean what the law says or can any 
administration on any law in the future reinterpret it based on their 
preferences?
  If there is one area that would be a great path for us to follow, it 
is in the days ahead that we get back to the government is about the 
law, and we follow the law because we are a nation of laws, not just a 
nation of leaders. The law is to be king in our Nation.
  So let's interpret it the way it is written and let's give people 
back the freedom they want and need. Let's put the patient back in 
health care. That is the next step I think we should take in this U.S. 
Senate.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. Mr. President, I ask unanimous consent that all time be 
yielded back.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  All time is yielded back.


                      Vote on Neffenger Nomination

  The question occurs on the Neffenger nomination.
  Mr. PAUL. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Peter V. Neffenger, of Ohio, to be an Assistant Secretary of 
Homeland Security?
  The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER (Mr. Lankford). Are there any other Senators in 
the Chamber desiring to vote?
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Missouri (Mr. Blunt), the Senator from Indiana (Mr. 
Coats), the Senator from Tennessee (Mr. Corker), the Senator from Idaho 
(Mr. Crapo), the Senator from Texas (Mr. Cruz), the Senator from South 
Carolina (Mr. Graham), the Senator from North Dakota (Mr. Hoeven), the 
Senator from Illinois (Mr. Kirk), the Senator from Utah (Mr. Lee), the 
Senator from Alaska (Ms. Murkowski), the Senator from South Dakota (Mr. 
Rounds), the Senator from Florida (Mr. Rubio), the Senator from South 
Carolina (Mr. Scott), the Senator from South Dakota (Mr. Thune), and 
the Senator from Pennsylvania (Mr. Toomey).
  Further, if present and voting, the Senator from North Dakota (Mr. 
Hoeven) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Minnesota (Mr. Franken), 
the Senator from New Jersey (Mr. Menendez), and the Senator from 
Montana (Mr. Tester) are necessarily absent.
  The result was announced--yeas 81, nays 1, as follows:

                      [Rollcall Vote No. 217 Ex.]

                                YEAS--81

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Bennet
     Blumenthal
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Cochran
     Collins
     Coons
     Cornyn
     Cotton
     Daines
     Donnelly
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Gardner
     Gillibrand
     Grassley
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Inhofe
     Isakson
     Johnson
     Kaine
     King
     Klobuchar
     Lankford
     Leahy
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Merkley
     Mikulski
     Moran
     Murphy
     Murray
     Nelson
     Paul
     Perdue
     Peters
     Portman
     Reed
     Reid
     Risch
     Roberts
     Sanders
     Schatz
     Schumer
     Sessions
     Shaheen
     Shelby
     Stabenow
     Sullivan
     Tillis
     Udall
     Vitter
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--1

       
     Sasse
       

                             NOT VOTING--18

     Blunt
     Coats
     Corker
     Crapo
     Cruz
     Franken
     Graham
     Hoeven
     Kirk
     Lee
     Menendez
     Murkowski
     Rounds
     Rubio
     Scott
     Tester
     Thune
     Toomey
  The nomination was confirmed.


                       Vote on Elliott Nomination

  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Daniel R. Elliott III, of Ohio, to be a 
Member of the Surface Transportation Board for a term expiring December 
31, 2018?
  The nomination was confirmed.


                            Vote Explanation

 Mr. MENENDEZ. Mr. President, I was necessarily absent for 
rollcall vote No. 217 and the voice vote that followed. Had I been 
present, I would have voted as follows: rollcall vote No. 217, the 
confirmation of Peter V. Neffenger to be an Assistant Secretary of 
Homeland Security, I would have voted yea; on the voice vote, the 
confirmation of Daniel R. Elliott III to be a member of the Surface 
Transportation Board, I would have voted yea.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President will be immediately notified of the Senate's action.

                          ____________________