[Congressional Record: May 7, 2010 (Senate)]
[Page S3385-S3404]
Unanimous-Consent Requests--Executive Calendar
Mrs. McCASKILL. Mr. President, I rise this morning in the cause of
common sense in how the Senate works. We have had so many delays on
nominations this year. Just as a quick review of where we stand, we
have had over 51 rollcall votes on President Obama's nominations to
serve in government under his Presidency. Of those 51 votes, over 80
percent of them were confirmed by overwhelming margins. Yet they sat on
the calendar for more than 3 months, on average--overwhelming support,
sitting on the calendar for 3 months, on average.
Just for some comparison, at the similar point in the Bush
administration, there were eight nominees on the calendar. Right now,
we have 107 nominees on the calendar. As I look at the list, I am
confused because, as to most of the people on the list, we do not know
why they are sitting there. We do not even know who is making them sit
there. Enter stage left the anonymous hold--or as I like to call it:
Nobody can blame me because they don't know who I am.
There is a law we passed that has a rule in it--very plain language,
very easy to understand--that once a Senator makes a unanimous consent
request to confirm a nominee, then you have to come out in the
sunlight. After 6 session days, after those requests are made in terms
of a unanimous consent for their confirmation, then the rule says you
must notify your party leader of your hold that you have on the
nomination, and it has to be published in the Congressional Record.
So last week I came to the floor and made 74 unanimous consent
requests on nominations. Who were those 74? This is the amazing part.
This is very amazing. Not one of the nominations I made a unanimous
consent request on last week had any opposition in committee--none--not
a voice vote ``no.'' No one spoke out and said: I have a problem. They
flew out of committee--all 74 of them. But no one knows why they are
sitting there or who has put a hold on them.
I made the request, and in the intervening week we have had a lot of
activity in that regard. The first thing that happened is, my friend
from Oklahoma followed the rule. He notified his party leader of the
holds he had, and it was published in the Congressional Record. He has
a great habit of reading what we are doing around here. When he read
the rule, it was obvious to him the rule said, once the request had
been made, you say who your holds are. He has never been afraid, my
friend from Oklahoma. He has never been afraid to take accountability.
I have seen him with great courage enrage this entire room because he
had some principles he was standing on. He is a great role model in
that regard--his principled stands; and he owns them. That is all we
are talking about. We are talking about owning them.
Nobody in America gets why this stuff has to be secret. I know he has
an amendment he wants to offer on secret spending, and I would like, on
the record, to say I would like to join him in that amendment. The
secret spending that goes on through the hotline process, he is
absolutely right--publishing this stuff for 72 hours. He is absolutely
right.
But this practice is absolutely wrong. Unlike his other colleagues,
he stepped out of the dark and into the sunshine. But no one else did.
So now, a week later, we still have 53 of those 74 names for which we
have no idea who is holding them or why. Some of them have been
confirmed of the 74 since then--a few. I think the Senator from
Oklahoma identified a hold on, I believe, six or seven. So now we still
have 53 names for which no one knows who is holding them by people who
are avoiding the rule.
I had somebody come up to me the other day and say: Well, there is no
enforcement. I said: Who would have thought you would have to make it a
misdemeanor for a Senator to identify their hold? They voted for the
bill. The vote was 96 to 2, so they voted for it. They just do not want
to live by it.
Today, I come back to the floor with my colleagues--and there will be
a number of us here--to once again try to trigger the rule. The
unanimous consent requests will be made. Today, we have 69 names--the
53 from last week that are still out in the dark somewhere--we do not
know who is holding them or why--and additional names that have been
added to the calendar since then.
Mr. President, 64 of the 69 nominees we will make a motion on today--
64 of the 69 nominees--had no opposition in committee--none. As we will
hear over the next hour or so, these are important jobs: National
Traffic Safety Board, the inspector general for the EPA. Can you
imagine right now not having an inspector general of the EPA with what
is going on in the gulf?
The other good news--let me just briefly talk about this. I am going
to yield to my colleague from New Mexico. We have a letter going
around, and the letter is very simple. Everyone who signs the letter is
taking a pledge--a public pledge--that they will never again
participate in a secret hold; and, further, they support abolishing
secret holds. If you want to hold somebody, you have to put your name
on it.
I am very proud of the fact we now have 59 signatures on that letter,
both Republicans--a Republican so far, 2 Independents, and all the
Democratic Senators, except 1. I am optimistic we will get the last
remaining Democratic Senator, Mr. Byrd, since he cosponsored a
resolution in 2003, along with Senator Wyden and Senator Grassley, who
have done yeoman's work on this issue for years. Senator Lott and
Senator Byrd, along with Senator Grassley and Senator Wyden, sponsored
a resolution back in 2003 to try to end secret holds, and here we are 7
years later with 53 nominees in the dark after the rule has been
triggered.
So I am optimistic. I certainly am hopeful we will have a lot more
Republicans sign on the letter. I think we may. The iceberg is moving.
We may actually bust up this thing. I am wildly optimistic--which is an
unusual thing around here--about reform. It is hard to change the
traditions of the Senate, especially when they are bad habits. Once
again, my colleague from Oklahoma and I share the same view on earmarks
and have tried from a principled
[[Page S3388]]
position to not participate in those. I think that is also a bad habit.
Clearly, we have a lot more people agreeing with us on secret holds
than we do on earmarks.
I look forward to making these motions today. I look forward to the
Senators reading the rule, understanding the plain language,
acknowledging they voted for it, and putting their name on these secret
holds. Hold a nominee. The Senator from Oklahoma is holding some
nominees. He has the right to do that. But the people we work for have
the right to know why and who he is. That is all we are asking for
today. We are not asking anybody to give up their holds; we are only
asking people to identify who they are, to come into the sunshine for
the transparency we all want to have as we serve the great people of
this Nation.
With that, for the unanimous consent requests, I will yield to my
colleague from New Mexico, Senator Udall.
The ACTING PRESIDENT pro tempore. The Senator from New Mexico.
Mr. UDALL of New Mexico. Mr. President, I know our Presiding Officer
today is also going to come forward, and we hope to see him down on the
floor. I thank Senator McCaskill very much for her organizational
efforts, hers and Senator Warner's, and for working on this issue. This
is a very serious issue for the Senate in terms of how we move forward
on the rules. I kind of liken it--and I have some history here, and I
know everybody has their history when it comes to administrations.
We have this administration elected a little over a year and a half
ago, trying to put their people in place. They are trying to put people
in place to run, for example--I am going to be talking about the
Tennessee Valley Authority and talking about the EEOC, the Equal
Employment Opportunity Commission. They are trying to put their people
in place to run these agencies and to get the government to work.
Sometimes in the past--and my father passed recently, but he used to
visit with me about the way they used to do it in the old days. In the
old days you got to put your people into place within the first couple
of weeks of an administration. I remember my father telling me he took
over as Secretary of the Interior in January. Within 2 weeks, he had
all of his Presidential appointees in place. He had his team in place.
He could start carrying out the responsibilities that had been given
him by the President. My understanding is for most of the Cabinet
members in President Kennedy's Cabinet, the same thing was true. Within
a couple of weeks you had your team in place and you could go out and
try to do the things your President had campaigned on.
We are seeing a striking difference between those days back in the
1960s and what happens today. We are seeing incredible obstruction in
terms of trying to move forward. It is done through this process, as
Senator McCaskill has brought out, of secret holds.
Since the Obama administration--I saw a figure at the end of the
first year--they only had 55 percent of their team in place; 55 percent
of their team. What we are talking about is holding up the ability of
the President to have his team in place and do his job. I think that is
unacceptable. I think one of the areas that is the worst when it comes
to this is the hold process, the secret holds.
What is a secret hold? Everybody asks about these secret holds. This
means a Senator is able to put a hold on a nomination and not come out
in public. We all know that the very best thing is to shine light on
the process. I think one of our Supreme Court Justices said it the
best: Sunshine is the best disinfectant. With the secret holds, there
is no sunshine. As many of us have pointed out on the floor, we want to
bring sunshine to this process.
I wish to congratulate Senator Coburn for being the only Senator to
step forward in this week-long process of trying to bring people out
into the public. I understand Senator McCaskill's reading of this
statute and my reading of this statute is if you have not come forward
at this point on this large number of nominees for which unanimous
consent has been asked, and there has been an objection, you are in
violation of the law. You are in violation of the law. Only Senator
Coburn has stepped forward to say I am holding up--I believe he is
holding up the Broadcasting Board of Governors. He is holding up six
people on the Broadcasting Board of Governors.
Today I am going to try to move--and we are doing this, I say to
Senator Coburn, in a bipartisan way. We are not picking just Democrats.
We are talking about the EEOC and the Tennessee Valley Authority, and
we are moving forward with both Democrats and Republicans. That is why
I am doing an en bloc request at this point so we can get both
Democrats and Republicans in place.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar Nos.--
and this is important, the EEOC--616, Jacqueline A. Berrien, to be a
member of the Equal Employment Opportunity Commission; 617, Chai Rachel
Feldblum; 619, Victoria Lipnic, to be a member of the EEOC for the
remainder of the term expiring July 1, 2010; and 620, Victoria Lipnic
to be a member of the Equal Employment Opportunity Commission; that the
nominations be confirmed en bloc, the motions to reconsider be
considered made and laid upon the table en bloc, no further motions be
in order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominees be printed in the
Record.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. Mr. President, reserving the right to object, I wish to
make an inquiry of the Chair as to the interpretation of the rule we
passed, because it is my understanding that the rule doesn't require
you to publish, but it does say the majority and minority leader are no
longer obligated to honor your request for a hold if you have not.
I ask for the Chair's opinion on that.
The ACTING PRESIDENT pro tempore. The law being section 512, Notice
of Objecting to Proceeding.
In General. The Majority and Minority Leaders of the Senate
or their designees shall recognize a motion of intent of a
Senator who is a member of their caucus to object to
proceeding to a measure or matter only if the Senator--
let me read both of these; I will try to paraphrase:
Following the objection to a unanimous consent to proceeding to, and/
or passage of a measure or matter on their behalf, submits the notice
of intent in writing to the appropriate leader or their designee; and
paragraph 2, not later than 6 session days after the submission under
paragraph (1), submits for inclusion in the Congressional Record and in
the applicable calendar section described in subsection (b) the
following notice--and files a notice of intent.
Mr. COBURN. OK. I will take that reading of the law as an assumption
that agrees with the position I put out there.
I would say--if the Chair would give me some time in consideration of
my reserving the right to object--I served in the majority for 2 years
prior to the Senators who are here on the floor today, and I understand
the frustration. I have been there. I was on the other side. It is
difficult. In terms of numbers, we have more of President Obama's
nominees cleared than President Bush's nominees at the same point in
time.
I wish to raise the question. I am going to comply. First, I don't
have any problem explaining why I hold somebody. The BBG nominees: The
BBG is in such a mess, I want to make sure I visit with every nominee
before I give them a clearance to get on that board, because we are
wasting three-quarters of a billion dollars there and not doing
anything positive for our country as we spend that money.
There are a lot of reasons why we hold people. One of the dangers of
coming forward, from my experience as a Senator myself, of putting a
hold on and then putting it out there, is this: If I want to do further
work or study or have a question, the assumption with a hold is that
you don't want them to move, and that may not be the case at all. The
reason for a hold oftentimes is I want to look at the history, I want
to look at the background, and I want to take the time to meet the
individual myself. That fulfills the true obligation of advise and
consent.
I would also say we were frustrated when we were in the majority the
same way, and we played the same kind of parlance, except with our own
nominees. When somebody on our side had a
[[Page S3389]]
hold, we didn't ever mention that. We didn't ever complain about that.
We just complained when the other side did. So the perspective has to
be--understanding the frustration; the President deserves advice and
consent--but I also know there are 150 nominees right now sitting in
committee who haven't been cleared in committee and we are a year and a
half, a year and 4 months into this administration. It is not just
that.
I intend to object to every one of these, not because I personally
have an objection, and I want my colleagues to know that, but one of
the considerations of courtesy on the Senate floor is if somebody else
does, you will honor that.
The final point I will make is that the majority and minority leader
usually work these things out. I think we passed 28 in the last few
weeks, probably because of some of the good effort of my colleagues on
the other side of the aisle to apply the pressure and heat. But I plan
to object to every one of these because there are those on our side who
have a problem with the individual. But I don't disagree that you ought
to have the courage to stand up and say who you are holding and why you
are holding them. I don't disagree with that. But that isn't our case
right now and that isn't the case of the law, as I understand it; it
just removes the obligation.
So on that basis I will object to this first package and plan on
objecting to every other one in forbearance and as a courtesy to those
on my side of the aisle who have a problem with these nominees.
The ACTING PRESIDENT pro tempore. Objection is heard.
The Senator from Missouri.
Mrs. McCASKILL. Mr. President, I am confused. This law was passed in
the most bipartisan way possible: 96 to 2. Are we going to pretend this
law doesn't say what it says?
Let me make sure I put in the Record what it says:
The majority and minority leaders of the Senate or their
designees shall recognize a notice of intent of a Senator who
is a member of their caucus to object to a proceeding or a
measure only if the Senator--
(1) following the objection to a unanimous consent
proceeding submits the notice of intent in writing to the
appropriate leader or their designee; and
(2) not later than 6 session days after the submission
under paragraph (1), submits for inclusion in the
Congressional Record and in the applicable calendar section
described in subsection (b) the following notice:
I, Senator ____ intend to object to proceedings to ____
dated ____ for the following reasons ____ .
It says the majority and minority leader can recognize a hold only if
the Senator first submits the notice of intent in writing after the
unanimous consent request is made, and submits it to the Congressional
Record.
We are going to try to slice and dice the plain language of this
about something as obvious and commonsensical as owning your hold? I
know the Senator from Oklahoma doesn't agree with that. He has just
said so. He is not doing this. I know he is here as a courtesy to his
fellow Members. But with all due respect, it is 107 to 8 on the
Executive Calendar.
That is how many were on the calendar in the Bush administration at
the same time--eight. There are 107 on the Executive Calendar in this
administration. Honestly, we can do this forever. We can say when we
were in the majority, we didn't do this and you did it; and when we
were in the minority, we didn't do this and you did.
We have a chance to stop it. We had 96 votes to stop it. Are we now
going to stand on some kind of notion that the law doesn't say what the
law says? I know part of the amendment of the Senator from Oklahoma is
that he wants Senators to sign in writing that they have read what they
are passing and that they understand the impact. I will be honest; I am
going to cosponsor that, if he will let me, because I agree with the
premise of it, although it is a little paternalistic to make Senators
sign something saying they understand the impact.
Does anybody believe Senators don't understand the impact of this
language? Are we going to stand on some kind of formality that we don't
have a way to enforce it. I guess the position the Senator is taking on
behalf of the Republican caucus is that the law doesn't say what the
law says.
I have had a briefing this week on the standing rule versus the rule
versus the law. That is what drives America crazy about this place. The
secret hold is wrong. The Senator from Oklahoma knows it, and I
guarantee you most of his colleagues do. You would be amazed how many
Republicans have come up to me this week and said, ``I don't do it,
Claire.''
I ask the Senator from Oklahoma to join our letter since he doesn't
do it either. He has courage. He has guts. He is accountable to the
people who voted for him. But to stand on behalf of the Republican
caucus on some notion that this doesn't say what it says--that is all
we are sent here to do, honestly. Believe me, I know the stuff that
goes on here--the equal opportunities--and the Democrats are doing some
of this in the majority. But we cleared all the secret holds this week.
We had a few--the Democrats had a few--and we cleared them all. I had a
couple Democrats come up to me complaining: ``I can't believe you made
me give up my hold.'' They were not happy about it. We had some
reluctant signatures on the letter.
Do you know what is nice about the letter? I think this is important
for the Senator from Oklahoma to understand. It doesn't say we are
giving up secret holds for this administration. A lot of my friends on
the other side of the aisle have a spring in their step now and think
my party is on the ropes and there is a chance that, come next year at
this time, Senator McConnell will be the majority leader or that
Congressman Boehner will be the Speaker. Do you know what. All the
names on this letter did not say ``while we are in charge.'' It says
``forever.'' We now have 58 members of this caucus--56 and 2
Independents who caucus with us--and 1 Republican so far who say it is
forever; as long as we are Senators, we are not going to do secret
holds.
Frankly, my friend from Oklahoma doesn't have to worry next year
about secret holds from this side of the aisle. I am proud we have done
that. There may be a nomination a future President makes that is a
Republican, and if the people of Missouri are good and kind enough to
hire me again, I may not like it. But I guarantee I will have the guts
to say so.
Mr. President, I wanted to clarify the plain reading of the law and,
obviously, what its intent was. I don't think anybody with a straight
face can argue what the intent was. It was to stop this stuff. We can
either ignore the intent and stand on a slicing and dicing and parsing
of the language and reassure the American people that we completely
don't get it or we can have people come out of the shadows on these
holds.
I appreciate the Senator from New Mexico for allowing me to respond.
Mr. UDALL of New Mexico. Mr. President, now we have seen
demonstrated, I think dramatically, what the process is here. We tried
to move on a bipartisan basis for the EEOC to put Democrats and
Republicans in that important government agency, an agency that focuses
on discrimination. If the people are not in place, it cannot move
forward with that very important goal. Our friend on the other side of
the aisle, Senator Coburn, has objected to putting Democrats and
Republicans in that agency so it can move forward.
I am going to try to move forward, also in a bipartisan way, on the
Tennessee Valley Authority. Many people may not know, but in the
Tennessee Valley, the power is provided by an agency called the
Tennessee Valley Authority. Everybody knows how important power is to
the economy. When we look around the world, we see communities being
stifled because they have blackouts and brownouts and they don't have
the available power. The Tennessee Valley Authority has a number of
members who need to be appointed to the board of directors. We are
moving today--both Democrats and Republicans--to try to bring home the
point that we need to get this board of governors in place.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar Nos.
740, Maryland A. Brown; 741, William B. Sansom; 742, Neil G. McBride;
and 743, Barbara Short Haskew, all to be members of the board of
directors of the Tennessee Valley Authority; that the nominations be
confirmed en bloc, the motions
[[Page S3390]]
to reconsider be considered made and laid upon the table en bloc; no
further motions be in order, the President be immediately notified of
the Senate's action, and that any statements relating to the nominees
be printed in the Record as if read.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. I object.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mr. UDALL of New Mexico. Mr. President, moving forward with some
individual nominees for President Obama to put in place people at the
Department of Commerce, at the Health and Human Services Department, at
the Treasury Department, at the State Department, and at the Energy
Department--all very important government agencies. All President Obama
wants is to have his team in place so they can start doing their work.
But what we are seeing on the other side over and again is secret holds
and delay.
It is important to remind everybody that at this particular point in
time 107 nominees of the executive branch are being held up. At this
point in time in the past for President Bush, only 8 nominees were
being held. So 107 are being held for President Obama, and for
President Bush, there were only 8. You can only think and draw the
conclusion that this is about preventing the President from getting his
team in place, which is obviously a very important function.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 640,
Eric Hirschhorn, to be Under Secretary of Commerce for the Export
Administration; that the nomination be confirmed; that the motions to
reconsider be considered made and laid upon the table; that no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record, as if read.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. I object.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mr. UDALL of New Mexico. Mr. President, now proceeding with an
important nomination for Health and Human Services, I ask unanimous
consent that the Senate proceed to executive session for the purpose of
consideration of Calendar No. 647, Jim Esquea, to be an Assistant
Secretary of Health and Human Services; that the nomination be
confirmed; that the motions to reconsider be made and laid upon the
table; that no further motions be in order; that the President be
immediately notified of the Senate's action, and that any statements
relating to the nominee be printed in the Record as if read.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. I object.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mr. UDALL of New Mexico. Mr. President, I will proceed with another
important position in the Department of the Treasury. We all know the
Department of the Treasury supervises everything that is out there in
terms of our economy--a very important position.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 652, Michael Mundaca,
to be an Assistant Secretary of the Treasury; that the nomination be
confirmed; that the motions to reconsider be considered made and laid
upon the table; that no further motions be in order; that the President
be immediately notified of the Senate's action, and that any statements
relating to the nominee be printed in the Record as if read.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. I object.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mr. UDALL of New Mexico. Mr. President, here is another important
nomination at the Department of State.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 722, Judith Ann
Stewart Stock, to be an Assistant Secretary of State; that the
nomination be confirmed; that the motions to reconsider be considered
made and laid upon the table; that no further motions be in order; that
the President be immediately notified of the Senate's action, and that
any statements relating to the nominee be printed in the Record as if
read.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. Reserving the right to object, Mr. President, I want to
make it known that I am carrying on a Senate courtesy on my side of the
aisle, and these are not necessarily my objections, but they are on
behalf of my colleagues. I object.
Mr. UDALL of New Mexico. Mr. President, I say to Senator Coburn that
we very much understand that he is doing this for others. We want them
to step forward. We want to get rid of these secret holds, as the
Senator from Oklahoma has stepped forward on the broadcasting board. He
has said he is holding up six people to go on that board of governors.
It is out there in public, and it is something that all of us can
examine and the media can examine. We can figure out whether his
objections are legitimate. But that is the process. That is what is
going on--secretly delaying the administration from getting its team in
place.
Let's admit what is going on here. The folks who are putting on these
holds do not want to see the President have his team in place. If he
doesn't have his team in place, I think the expectation is that they
think he would not be able to do the job.
Once again, the President nominated somebody important to work with
Secretary Chu at the Department of Energy.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 726,
Patricia A. Hoffman, to be an Assistant Secretary of Energy; that the
nomination be confirmed; that the motions to reconsider be considered
made and laid upon the table; that no further motions be in order; that
the President be immediately notified of the Senate's action, and that
any statements relating to the nominee be printed in the Record as if
read.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. I object.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mr. UDALL of New Mexico. Once again, they are being held up through
secret holds, and Senator Coburn has said he is doing this on behalf of
Members on his side--not allowing all of these people to get into the
government and do the job. We are talking about important government
agencies, such as the Department of Commerce, Health and Human
Services, Secretary of the Treasury, Secretary of State, Secretary of
Energy--all objected to today.
Many of these nominations have been pending for a while. There are
very few objections in committee. This is something that is being put
forward for the purpose of delay.
Mr. COBURN. Will the Senator yield for a moment?
Mr. UDALL of New Mexico. I am going to yield to the Senator from
Minnesota.
Mr. COBURN. Will the Senator from Minnesota yield?
Ms. KLOBUCHAR. For a minute, sure.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I think the motives ascribed by the
Senator from New Mexico are improper. I do not think it is so people
can't get into a job to cause President Obama problems. I reject that
motive.
With any administration, there is a very big difference of opinion.
That is why we have elections. That is why things move like this in our
country. It is about whether somebody objects to somebody's either
philosophical bent or qualifications for a certain job.
I make the point again that at the same time under a Republican
Congress, President Bush had fewer numbers approved than President
Obama does at this time.
I hope we would not ascribe that motive. I want President Obama to
have, in fact, the people he needs to have in place to effectively run
our government. I will give the numbers again. To this date, President
Obama has 596 of
[[Page S3391]]
his nominees confirmed. At the same time, President Bush had 570. In
the two previous administrations, President Bill Clinton had 740 and
President George H.W. Bush had 700.
I think what my colleagues are fighting for is fine. I agree with
them. I am on the team as far as that is concerned. But I think we
ought to be careful with the motives we ascribe. I really do not think
it is to try to handcuff the administration. I think it is different.
Of course, the sign that is being put up is about who is pending. I
understand that. Let's be careful on the ascribing of motives. As I
talk with my colleagues, I do not really find that motive. Even though
they may not be out front with it as I have been, that does not mean
they necessarily want the administration to not be effective.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from
Minnesota.
Senators need to be reminded that Senators may not yield the floor to
one another. They must yield only for a question and through the Chair.
Ms. KLOBUCHAR. Mr. President, I thank you for the correction.
I appreciate my colleague's statement about his general support--I
assume he meant for getting rid of secret holds, and he can correct me
if I am wrong--his general support for changing this process and
getting things done.
I will say that when we are in this time of economic challenge, no
matter what the motives, I really do not care what is in the heads of
my colleagues when they put on the holds. I do not even want to go
there. What I care about is getting things done in the government when
we have so many people unemployed, when we clearly have to move ahead
and do more about small business and exports.
All I know is this: If we want to talk about the difference, at this
point, 107 Obama nominees are on hold and being obstructed. At the same
time--whether it was because not enough were nominated, I do not really
care--at this same point, Bush nominees waiting for a vote--there were
eight.
My bigger answer to this is, who cares about who did it or who did
what when. What matters to me is that we move ahead and get going.
It is no surprise to me that the Senators who have taken the floor
this morning and are surrounding me are Senators who want to see good
government, Senators from open States with big blue skies, such as the
State of New Mexico, Senator Udall, who is now the Presiding Officer;
or my State, the State of Minnesota, which has always been a leader in
open government in moving things ahead; or Senator Warner, who knows
what it is like to manage a large State and knows you have to have your
team in place if you want to get things done in the State of Virginia;
or Senator McCaskill, who has been leading this effort from the Show-Me
State, the State of Missouri--show me who is doing these holds.
The bigger issue is not just making sure we can run this government
and getting the government moving and helping people again. The bigger
issue for me is that things should not be done in secret. If you are
going to put a hold on someone, we should know who and why you are
doing it. I said the other day that this reminds me of an Olympic
sport, a relay race, passing a baton from Senator to Senator so we
cannot figure out who is holding the baton. They rotate who is putting
on the holds, and they get around the rule. If delay were an Olympic
sport, my colleagues would be getting a gold medal because there has
been so much delay with these nominees, and it has to stop.
I want to give a few examples of the kinds of nominees we are talking
about and the kinds of nominees we would like to see get confirmed. I
want to give some examples of who these are, and I will then go through
and make a request to confirm them.
We are right now in the middle of an oilspill of cataclysmic
proportions in the gulf. I am going there this afternoon to see it. We
are going to have a major hearing in our environmental committee on
Tuesday. Do you know who is being held up right now? Michael Tillman,
to be a member of the Marine Mammal Commission, is being held up;
another guy, Daryl Boness, to be a member of the Marine Mammal
Commission. Normally, one might not think this is the most important
position in government. I say two things: One, we are dealing with
marine issues right now, extreme marine issues of what is going to
happen to our wildlife in the oceans. The second thing we are doing
with this--why would anyone hold up members of the Marine Mammal
Commission?
One guy I actually know--Mark Rosekind, to be a member of the
National Transportation Safety Board. He does a good job. Like you, Mr.
President, I am a member of the Commerce Committee. We know how
important it is.
Earl Weener, to be a member of the National Transportation Safety
Board. As we are dealing day-in and day-out with issues of threats to
our transportation, the potential of airplanes that have gone down in
the sky in the middle of Buffalo, and we have potential terrorist
threats to our transportation system, what are we doing? We are holding
up the nominees.
We have Toyota putting out cars that basically kill people across the
country because the safety measures were not taken. They just paid the
biggest fine in the history of this country. What are we doing? There
are Members who are secretly holding up members of the National
Transportation Safety Board. Why would we do that?
I will start with these.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 592, Mark Rosekind,
and Calendar No. 787, Earl Weener, both to be members of the National
Transportation Safety Board; that the nominations be confirmed en bloc,
the motions to reconsider be considered made and laid upon the table en
bloc, no further motions be in order, the President be immediately
notified of the Senate's action, and that any statements relating to
the nominees be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Again, this is a perfect example. We look at what
happened with the Buffalo flight going down. We look at what happened
with the Toyota cars. We look at what is going on across this country
as we are focusing on terrorism and what happened in Times Square just
recently. This is not the time to block nominees to the National
Transportation Safety Board. Whatever the motives, whatever the
reasons, at this point I do not care. I think the President should be
able to have his team in place.
Next, I mentioned the Marine Mammal Commission, as we are dealing
with an oilspill across the gulf.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 784,
Michael F. Tillman, and Calendar No. 786, Daryl J. Boness, both to be
members of the Marine Mammal Commission; that the nominations be
confirmed en bloc, the motions to reconsider be considered made and
laid upon the table en bloc, no further motions be in order, the
President be immediately notified of the Senate's action, and that any
statements relating to the nominees be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Very good. Again, marine mammals. We are dealing with
animals that are almost certainly going to die because of this
oilspill, and there are people on the other side of the aisle who have
decided to block these nominations.
Next, Warren Miller, nominated to be the Director of the Office of
Civilian Radioactive Waste Management at the Department of Energy. I
don't know the reasons this hold was put on, why he is held up, but I
do not believe any person in this country believes we should have no
person directing the Office of Civilian Radioactive Waste Management.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 404, the nomination of
Warren Miller; that the nomination be confirmed, the motion to
reconsider be considered made and laid upon the table, no further
motions be in order,
[[Page S3392]]
the President be immediately notified of the Senate's action, and that
any statements relating to the nominee be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Next we go to Winslow Lorenzo Sargeant, to be Chief
Counsel for Advocacy in the Small Business Administration. Mr.
President, 64 percent of the jobs in this country are created by small
businesses. Wall Street has been making record profits, but small
businesses in this country are still suffering. Wall Street got a cold;
Main Street got pneumonia. This is the time for a robust Small Business
Administration.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 427, the nomination of
Winslow Lorenzo Sargeant; that the nomination be confirmed, the motion
to reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Mr. President, the next one that is being held of
these 107 nominations is Benjamin Tucker, to be Deputy Director for
State, Local, and Tribal Affairs in the Office of National Drug Control
Policy. As a former prosecutor--and I know you do, Mr. President, as a
former attorney general--I understand the importance of having people
in place to work on our national drug policy and to reduce the illegal
drugs in this country.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 556,
Benjamin Tucker; that the nomination be confirmed, the motion to
reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Next, John Laub, to be Director of the National
Institute of Justice.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 581, John Laub; that
the nomination be confirmed, the motion to reconsider be considered
made and laid upon the table, no further motions be in order, the
President be immediately notified of the Senate's action, and that any
statement relating to the nominee be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Mr. President, the next of the 107 nominations being
put on hold is P. David Lopez, Calendar No. 618, to be general counsel
of the Equal Employment Opportunity Commission.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 618, P. David Lopez;
that the nomination be confirmed, the motion to reconsider be
considered made and laid upon the table, no further motions be in
order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Mr. President, the next one is Jill Long Thompson, to
be a member of the Farm Credit Administration. Coming from an
agricultural State, I understand how important it is to have people in
place for the Farm Credit Administration, especially during this
difficult time. Because of agencies such as the Farm Credit
Administration, at least our rural areas have not gone off the cliff
and have maintained some stability but are always challenged.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 628, Jill Long
Thompson; that the nomination be confirmed, the motion to reconsider be
considered made and laid upon the table, no further motions be in
order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Mr. President, next, James P. Lynch, to be Director of
the Bureau of Justice Statistics. Again, as a former prosecutor, it is
incredibly important that we have statistics on crime, that we know
what is going on so we can develop the best policies and triage the
cases so we can keep our neighborhoods safe.
I ask unanimous consent that the Senate proceed to executive session
for the purpose of consideration of Calendar No. 705, James P. Lynch;
that the nomination be confirmed, the motion to reconsider be
considered made and laid upon the table, no further motions be in
order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. As a member of the Commerce Committee, again, I am
very concerned that we still do not have a Deputy Administrator for the
Federal Aviation Administration in place. As we know, there have been
many recent incidents. We are trying to get the FAA reauthorization
done to finally modernize our airports with NextGen so we can have the
next generation of airport control, so we can better process our
planes, so we can better land these planes, so we can have more safety,
so we can have less congestion at our airports. This is very difficult
to do when you don't have in place all of your managers who are
supposed to be managing the Federal Aviation Administration. We have
had incidents in Minnesota of a plane that overran the airport and
ended up in Wisconsin. We have had planes that have been sitting on the
tarmac for 6 hours with passengers without food and water.
We have had all kinds of issues with aviation, and yet--and yet--my
colleagues on the other side of the aisle, while supportive at times of
these efforts to modernize our air traffic control system, are blocking
the nomination of the deputy administrator for the Federal Aviation
Administration.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 782,
Michael Peter Huerta; that the nomination be confirmed, the motions to
reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Mr. President, another job here that is unfilled--one
of the 107 relating to maritime issues, and again we are dealing with
an incredibly sensitive and catastrophic issue with this oilspill in
our oceans--the Administrator of the Maritime Administration is being
held by my colleagues on the other side of the aisle. I don't know what
the motives are. Maybe they do not like this person. We don't know who
is holding this. All I know is that a President has to get his team in
place when he is dealing with an issue as catastrophic as this BP
oilspill.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 783,
David Matsuda; that the nomination be confirmed, the motions to
reconsider be
[[Page S3393]]
considered made and laid upon the table, that no further motions be in
order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Finally, Mr. President, we have Arthur Allen Elkins,
who has been nominated to be the inspector general of the Environmental
Protection Agency. Again, we are dealing with an environmental crisis
down in the gulf coast area. Yet we can't even get this inspector
general in place.
I know many of my colleagues on the other side of the aisle support
having inspectors general in place so we can look at what is going on
in government, so we can figure out what is happening and get things
right. Yet this nomination is being held.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar No. 794,
Arthur Allen Elkins; that the nomination be confirmed, the motions to
reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Ms. KLOBUCHAR. Mr. President, I see the Presiding Officer has a smile
on his face as he realizes I have reached the end of the nominees I am
reporting on today. But I will tell you this: Having managed an office
of 400 people--a government office, a local county attorney's office--I
can't even imagine trying to run that place without having my top
people in place and that kind of security.
It is very difficult to cut government spending, to make the kinds of
decisions you need to make when you don't have your top team there to
get the work done. Worse than that, with these secret holds, it is very
hard to even understand why these people are being held, who is holding
them. That is why we are working so hard to get rid of this.
As I said, this crop of Senators that has come here in the last 2
years does not like business as usual. We just want to get the business
done.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, first, let me thank my colleagues for
being here this morning. I am pleased to join this effort. I want to
particularly thank my colleague from Missouri, who has been a
relentless voice on opening up and bringing a little sunshine to not
only this issue but a lot of things that go on here that maybe make
some of our colleagues a little uncomfortable, but she is constantly
being that voice and pushing and prodding and trying to make sure we
improve the process.
I also want to thank my colleague, the Senator from Oklahoma, who--as
I think the Senator from Missouri said--we may not always agree with,
but there are very few Members in this body who are more
straightforward and honest about what they believe in and are more
consistent, which probably frustrates some of us. But he is absolutely
consistent in what he believes and he holds our feet to the fire. I
commend him for bringing forward his holds and being willing to step up
and explain them.
Like the Presiding Officer, I am a new guy here. But unlike so many
of my colleagues, I have never been a legislator. I was a business guy
for a number of years and I had the honor of serving as Governor. Quite
honestly, I had a little TV in the Governor's office and whenever the
legislature was in, I simply turned it off. So I don't fully
appreciate, perhaps, all of the traditions of a legislative body. And I
don't, by any means, know the history as well as my colleague from
Missouri and my colleague from Oklahoma surrounding holds. But I did a
little bit of research, and it seemed to me this ``holds'' notion came
up as a courtesy in the last century because Senators had to travel a
long distance to get to the body. They couldn't be here because they
were traveling--on horseback--and it would take days or weeks. So
somebody might say, as a courtesy, that we are going to set this aside
or put a hold on somebody until the Senator can get here and explain
himself or herself--I guess himself, at least at that time--in a fuller
manner.
It seems to me that some of the traditions of this institution that
were used on occasion--whether it is holds or filibusters or what have
you--to keep this body functioning, are now being so overused that we
seem to be institutionalizing dysfunction. I think the Senator from
Oklahoma has made the case that neither side has clean hands, and
whatever is up today may be down tomorrow.
One of the things I think the Senator from Missouri in her effort has
done is to say: We are not saying we ought to change the rules for this
moment in time. We want to change the rules forever. I can't explain to
anybody in the Commonwealth of Virginia why in the 21st century we have
something called a ``secret hold,'' where somebody can say: We don't
like this guy or gal and we don't want them to be put forward, debated,
and voted up or down for some secret, unknown reason.
I know my colleague, the Senator from Oklahoma, has said that most of
the Members may have a legitimate reason--because they do not agree
with the individual's philosophy or their background, and that is a
very legitimate reason to raise--but I do know there has been at
least--and I can't ascribe motives--a recent press report about an
issue that brought some controversy here to the floor where a Member
held one of the President's nominees not because the Member felt there
was anything wrong with the nominee's qualifications but as a leverage
matter, to try to encourage the administration to change a law with
Canada on a totally unrelated matter. That, to me, seems like
institutionalizing dysfunction and not--back to what I have at least
been able to read about the history of holds--as a courtesy because
folks can't get here and make their case in person. Even with our
slightly dysfunctional airline system at this point, we can get here
within a couple of days, absent storms.
So again commending my colleague from Oklahoma for stepping up on
this one, where there is a problem with someone the President is
putting forward--this President or any future President--we ought to
acknowledge it, we ought to say what is wrong, we should have a
spirited discussion, and then we should either vote the person up or
down.
I am anxious to listen. If there is something wrong with some of
these folks, let's vote them down and tell the President to put up
somebody else. But 16 months into this administration--as a former
business CEO and a former CEO of the Commonwealth of Virginia, I
couldn't imagine having my folks languish in limbo in this kind of
skull and crossbones kind of secret hold society stuff. It seems as if
it was something that came out of the 18th or 19th century, where
certain institutions of higher learning transported this idea of secret
holds here to the floor of the Senate. It doesn't seem to make sense.
I am going to finish, because there are other colleagues, and the
Senator from Oklahoma is going to have to rise a number of times
because there are a lot of folks we have to go through, so I won't go
on with this issue. But I am proud to be part of this effort with the
Senator from Missouri, and I hope the Senator from Oklahoma will
continue to raise issues--particularly around public spending--where I
hope to find lots of places of common cause to join him. I appreciate
his willingness to come forward. I sure as heck hope that more Members,
on both sides of the aisle, will join this effort.
We can be respectful of the Senate and we can be respectful of its
traditions, but it sure as heck seems to me that in the 21st century,
the notion of secret holds ought to be one of those traditions that
gets left behind. So in that spirit, I have two sets of nominations,
both en bloc, since they are both Democrats and Republicans, to try to
make the point that, in some small way, this is not about partisanship.
It is about process.
[[Page S3394]]
Mr. President, I ask unanimous consent that the Senate proceed to
executive session for the purpose of consideration of Calendar Nos.
589, Anthony Coscia; 590, Albert DiClemente; and 788, Jeffrey R.
Moreland, all to be Directors of the Amtrak Board of Directors; that
the nominations be confirmed en bloc, the motions to reconsider be
considered made and laid upon the table en bloc, no further motions be
in order, the President be immediately notified of the Senate's action,
and that any statements related to the nominees be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. WARNER. Mr. President, I ask unanimous consent that the Senate
proceed to executive session for the purpose of consideration of
Calendar Nos. 500, Julia Reiskin, and 501, Gloria Valencia-Weber, both
to be members of the Legal Services Corporation; that the nominations
be confirmed en bloc, the motions to reconsider be considered made and
laid upon the table en bloc, no further motions be in order, the
President be immediately notified of the Senate's action, and that any
statements relating to the nominees be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. WARNER. Once again, Mr. President, I appreciate the courtesy of
the Senator from Oklahoma and the leadership of the Senator from
Missouri. We are going to continue to raise this issue, and with the
same kind of relentlessness the Senator from Oklahoma raises on public
spending. I hope he continues making some progress. I look forward to
joining him on some of his efforts, and I hope this list of now 59
Senators will include many Members from both sides. It seems to me to
make good common sense.
With that, Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mrs. McCASKILL. Mr. President, I listened to my colleague from
Oklahoma, and I understand it is difficult to listen to any of us put
motives on something when we don't know what the reason is, and
ascribing motives is unfair when you don't know. But sometimes my
experience as a mother pops up in my brain, and I think of my kids when
they were little--and especially as they became teenagers--and I
remember one time catching one of my kids. He had sneaked out of the
house at night in the dark. I caught him and I said: You know, you are
in big trouble, buster. He said: Well, mom, I wasn't doing anything
wrong. We just walked around the block. We weren't doing anything you
would get mad about. We weren't drinking, we weren't smoking, we
weren't chasing down girls. We just walked around the block. I said:
Well, you know, if you do it in the dark and you are not willing to
tell me about it, then you know what I am going to assume? I am going
to assume you are doing something sneaky and underhanded, and you just
need to bank on that; that if you think you have to hide something from
me, you have to assume I am going to think you are doing something
wrong. If you are not willing to talk about it, you are not willing to
own it, you are not willing to tell me about it, you are in trouble.
End of discussion.
That is why we are ascribing motives. It is only logical to assume.
After voting for a bill that clearly says once the unanimous consent
motion is made you have to come out of the darkness, you have to
explain what you are doing, the fact that these people are not coming
forward--I have to tell you, if they were my kids, I would assume
this--they are doing something they aren't proud of. I would assume
that, if they were doing the sneaky, and that is what this is. This is
sneaky, because they are not stepping up--like the Senator from
Oklahoma has. Step up, own it, hold for as long as you like. Some of us
may agree with your reasons and join you in your hold.
But there are literally names on this list where no one knows why
they are being held. The White House does not know, the nominee does
not know, maybe Leader McConnell doesn't even know. It is nonsense. It
is plain and simple nonsense.
My friend from Oklahoma is absolutely correct, we should not ascribe
motives. But it is only human nature, if people are not looking at the
plain language of the ethics bill they proudly voted for and doing what
the plain language says you are supposed to do, people are going to
start thinking something underhanded is happening. The only way to fix
that is to step up.
Mr. President, I ask unanimous consent the Senate proceed to
executive session for the purpose of consideration of Calendar No. 648,
Michael W. Punke, of Montana, to be a Deputy United States Trade
Representative, with the rank of Ambassador; that the nomination be
confirmed, the motions to reconsider be considered made and laid upon
the table, no further motions be in order, the President be immediately
notified of the Senate's action, and that any statements relating to
the nominee be printed in the appropriate place in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 649, Islam A. Siddiqui, of Virginia, to be Chief
Agricultural Negotiator, Office of the United States Trade
Representative; that the nomination be confirmed, the motions to
reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed at the appropriate place in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 799, Carolyn Hessler Radelet, of the District of Columbia,
to be Deputy Director of the Peace Corps; that the nomination be
confirmed, the motions to reconsider be considered made and laid upon
the table, no further motions be in order, the President be immediately
notified of the Senate's action, and that any statements relating to
the nominee be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 800, Elizabeth L. Littlefield, of the District of
Columbia, to be president of the Overseas Private Investment
Corporation; that the nomination be confirmed, the motions to
reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 801, Lana Pollack, of Michigan, to be a Commissioner on
the part of the United States on the International Joint Commission,
United States and Canada; that the nomination be confirmed, the motions
to reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 809, Bisa Williams, of New Jersey, a Career Member of the
Senior Foreign Service, Class of Counselor, to be Ambassador
Extraordinary and Plenipotentiary of the United States of
[[Page S3395]]
America to the Republic of Niger; that the nomination be confirmed, the
motions to reconsider be considered made and laid upon the table, no
further motions be in order, the President be immediately notified of
the Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 810, Raul Yzaguirre, of Maryland, to be Ambassador
Extraordinary and Plenipotentiary of the United States of America to
the Dominican Republic; that the nomination be confirmed, the motions
to reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 811, Theodore Sedgwick, of Virginia, to be Ambassador
Extraordinary and Plenipotentiary of the United States of America to
the Slovak Republic; that the nomination be confirmed, the motions to
reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 812, Robert Stephen Ford, of Maryland, a Career Member of
the Senior Foreign Service, Class of Minister-Counselor, to be
Ambassador Extraordinary and Plenipotentiary of the United States of
America to the Syrian Arab Republic; that the nomination be confirmed,
the motions to reconsider be considered made and laid upon the table,
no further motions be in order, the President be immediately notified
of the Senate's action, and that any statements relating to the nominee
be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 824, Dana Katherine Bilyeu, of Nevada, to be a Member of
the Federal Retirement Thrift Investment Board; that the nomination be
confirmed, the motions to reconsider be considered made and laid upon
the table, no further motions be in order, the President be immediately
notified of the Senate's action, and that any statements relating to
the nominee be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 826, Michael D. Kennedy, of Georgia, to be a Member of the
Federal Retirement Thrift Investment Board; that the nomination be
confirmed, the motions to reconsider be considered made and laid upon
the table, no further motions be in order, the President be immediately
notified of the Senate's action, and that any statements relating to
the nominee be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 827, Dennis P. Walsh, of Maryland, to be Chairman of the
Special Panel on Appeals; that the nomination be confirmed, the motions
to reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER (Mr. Warner). Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 829, Todd E. Edelman, of the District of Columbia, to be
an Associate Judge of the Superior Court of the District of Columbia;
that the nomination be confirmed, the motions to reconsider be
considered made and laid upon the table, no further motions be in
order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 830, Judith Anne Smith, of the District of Columbia, to be
an Associate Judge of the Superior Court of the District of Columbia;
that the nomination be confirmed, the motions to reconsider be
considered made and laid upon the table, no further motions be in
order, the President be immediately notified of the Senate's action,
and that any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. I ask unanimous consent the Senate proceed to
executive session for the purpose of consideration of Calendar No. 832,
David B. Fein, to be United States Attorney for the District of
Connecticut; the nomination be confirmed--I believe, Mr. President,
that the United States Attorney for the District of Connecticut would
have jurisdiction over any Federal crimes that may have been committed
by the individual who tried to blow up people in Times Square on
Saturday night. That man lived in Connecticut. Any activities that he
engaged in, in planning this dastardly plot in which, thank God, no one
was killed, but we have no U.S. Attorney in Connecticut. That would be
the chief law enforcement officer on any Federal crimes that have been
committed by this American citizen who has confessed to some of his
crimes, but we may not be aware of other crimes that may have been
committed.
The nomination of David B. Fein be confirmed to be United States
Attorney for the District of Connecticut, the motions to reconsider be
considered made and laid upon the table, that no further motions be in
order, and the President be immediately notified of the Senate's
action, and any statements relating to the nominee be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. Reserving the right to object, I am not sure it is a
vacancy in the District of Connecticut at the U.S. Attorney's office. I
think this is a replacement nomination. And I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 833, Zane David Memeger, to be United States Attorney for
the Eastern District of Pennsylvania; that the nomination be confirmed,
the motions to reconsider be considered made and laid upon the table,
no further motions be in order, the President be immediately notified
of the Senate's action, and that any statements relating to the nominee
be printed in the Record.
[[Page S3396]]
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 834, Clifton Timothy Massanelli, to be United States
Marshal for the Eastern District of Arkansas; that the nomination be
confirmed, the motions to reconsider be considered made and laid upon
the table, no further motions be in order, the President be immediately
notified of the Senate's action, and that any statements relating to
the nominee be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, I ask unanimous consent the Senate
proceed to executive session for the purpose of consideration of
Calendar No. 835, Paul Ward, to be United States Marshal for the
District of North Dakota; that the nomination be confirmed, the motions
to reconsider be considered made and laid upon the table, no further
motions be in order, the President be immediately notified of the
Senate's action, and that any statements relating to the nominee be
printed in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Mr. President, there are some nominations on whom the
request has not been made. My colleague from Rhode Island has a number
of judicial appointments. He will return to the floor to make those
unanimous consent requests later--I assume soon. There will be 64 total
requests that will be made today that we cannot find opposition for--64
we cannot find opposition.
I am going to now make five requests to which there was opposition.
The ones I just made, by the way, the last group I just made, are new.
They have been added to the calendar since I made the requests last
week. This is going to continue. I am going to do my very best job at
impersonating the tenacity of my colleague from Oklahoma. I am going to
do my very best job of being a dog with a bone on secret holds. I am
not going to give up. I am going to be out here every week, as often as
I need to be out here. I am going to get as many colleagues to help me.
We now have everybody on this side on board with the exception of
Senator Byrd, and I am optimistic we will get Senator Byrd. I am
hopeful the next time I will have some of my colleagues on the other
side of the aisle, who agree secret holds are wrong, to help make these
requests.
The ones I just made were new. As notice to the Senators who may be
holding those, they were not made last week. So I urge everyone to
check the list and, if they have a hold on them, to notify Leader
McConnell and let Leader McConnell know what their objection is and
comply with the law they voted on.
Let me make these last ones. I wanted the record to be clear, these
are the first ones we made that anybody voiced opposition to--anybody.
Mr. President, I ask unanimous consent the Senate proceed to
executive session for the purpose of consideration of Calendar No. 552,
Jane Branstetter Stranch, to be United States Circuit Judge for the
Sixth Circuit; the nomination be confirmed, the motions to reconsider
be considered made and laid on the table, no further motions be in
order, the President be immediately notified of the Senate's action,
and any statements relating to the nominee be printed at the
appropriate place in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. I might note for the record that this nominee was
voted out of committee by a vote of 15 to 4, with three Republican
Senators supporting her in committee and four Republican Senators
opposing her in the committee. The final vote was 15 to 4.
I ask unanimous consent the Senate proceed to executive session for
the purpose of consideration of Calendar No. 588, Philip Coyle, to be
Associate Director of the Office of Science and Technology; that the
nomination be confirmed, the motions to reconsidered be considered made
and laid upon the table, that no further motions be in order, the
President be immediately notified of the Senate's action, and that any
statements relating to the nominee be printed at the appropriate place
in the Record.
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. On that nominee, the vote out of committee was 19 to
6--19 to 6. Five Republican colleagues supported this nominee and five
Republican Senators opposed this nominee. So it was a 5-to-5 split of
the Republicans on the committee to that nominee.
I ask unanimous consent the Senate proceed to executive session for
purpose of consideration of Calendar No. 703, Benita Y. Pearson, to be
United States District Judge for the Northern District of Ohio; that
the nomination be confirmed, the motion to reconsider be considered
made and laid on the table, no further motions be in order, the
President be immediately notified of the Senate's action, and that any
statements relating to the nominee be printed at the appropriate place
in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. I object.
The PRESIDING OFFICER. Objection is heard.
I might note this was a voice vote in committee and Senator Sessions
did raise concerns in committee. So there was not a tally vote. No one
requested a rollcall vote on the nominee. It was noncontroversial
enough that no one wanted to go on record with a rollcall vote, but we
wanted to be very transparent and did want to indicate for the record
that Senator Sessions did raise concerns in committee about this
nominee.
Mr. President, I ask unanimous consent that the Senate proceed to
executive session and consider Calendar No. 747, Ari Ne'eman, to be a
member of the National Council on Disability. I ask unanimous consent
that the nomination be confirmed, the motion to reconsider be
considered made and laid upon the table, no further motions be in
order, and the President be immediately notified of the Senate's
action, and that any statements be printed in the Record.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. COBURN. I object.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mrs. McCASKILL. I should note that this is a nominee who--once again,
it was a voice vote. Senator Coburn did indicate some concerns with
this nominee at the committee level.
Mr. COBURN. I have an appointment with the gentleman to have a
discussion.
Mrs. McCASKILL. We have now gone through the entire list, with the
exception of about 10 judicial nominees on whom Senator Whitehouse will
be making the requests. I was hopeful that this week we would know who
is holding those folks. We still do not know.
If I might make a suggestion, I am not confident it will be accepted,
but if the leadership of the Republican caucus wants to hold these
nominees, Senator McConnell can put his name on all of them. Then the
people of America will know Senator McConnell is holding them and they
will see him as the leader of the Republicans and they can judge
accordingly. But if Senator McConnell does not have objections to them
and is not willing to put his name on them, then the people who have
the objections should put their names on the holds. We are going to
break this bad habit.
I do want to make a note that there were four judges I made requests
on who inadvertently got on the list. They have been confirmed. We will
provide for the record those four names so they can be appropriately
noted. So instead of doing 69 today, we are only doing 65.
I thank the Senate for its indulgence. I thank Senator Coburn for
remaining on the Senate floor. As I said, Senator Whitehouse will be
back to make a few more motions. Let's break a bad habit that the
people of this country do not agree with.
[[Page S3397]]
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I ask unanimous consent to speak for
approximately 15 minutes as in morning business for myself.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Tribute to Jane Treat
Mr. COBURN. Mr. President, I pay tribute to one of my staff members
today. She recently left. She had a child and is being a mom and a
civic activist. But she was a trusted adviser and, more than that, a
dedicated patriot.
Jane Treat, who has been with me since the earliest parts of 2004, is
leaving to become a full-time mother. It is hard to lose her. But I
understand the attraction as well as the commitment for a much more
important job. She first came to work for me as a volunteer, fresh off
her studies at Patrick Henry College.
Since that time she has played a key role on my Judiciary Committee
through many intense legislative battles. She spent many long days in
the Dirksen Building poring through briefing materials, preparing
background notes for me, and negotiating on my behalf with other
offices.
She was there during the Roberts and Alito hearings. For a time she
also served as my interim chief counsel on the committee, since I had
no attorneys and she was a nonattorney as well, which was a rare
occasion. Her dedication has never wavered. The fact is, she worked the
day she delivered her first child. She prepared negotiations that day
for a bill that threatened the second amendment of the Constitution and
how it interacted with our veterans. We prevailed that day in no small
part because of her efforts. One would be hard pressed to find anyone
who cherishes the Constitution and who knows its principles as well as
Jane Treat.
My legislative director jokes:
Although Jane did not actually write the Constitution, she
is its fiercest defender.
I would have to agree.
For the past 2 years, and after the birth of her daughter, Jane has
managed a correspondence team that works in my office, ensuring that
every letter that reached my desk was treated with the utmost concern
and professionalism. She cared for each constituent as if it were
written to a close relative or a neighbor. In that, she has done a
terrific job.
There is one last quality of Jane that I commend to everyone in the
room, and that is courage. Jane has a keen sense of right and wrong and
will not allow an injustice to stand, whether it is policy related or
simply human. She fights for everybody.
When she disagrees--I am laughing about this because when she
disagreed with me, I was always sure I would hear about it later. She
would come to the office and knock on the door, and say: Now we need to
have a talk. You were wrong.
Of course, I would remind her that she was not elected and I was and
there is some interpretation to the Constitution.
But the quality of having the courage to confront on things that are
strongly held beliefs is a great quality that built our country, and
she distinguishes herself in it. That is in contrast to what usually
happens in this town where we avoid difficult issues rather than
confront them.
True to her principles, she will turn her attention toward her new
community in Broken Arrow, OK, where she will be a full-time mom. It
will not be long, for sure, before she is volunteering again for a
cause close to her heart.
Jane, we appreciate you. We thank you for your service, and we thank
you for the modeling of your behavior.
Secret Holds
Now, I just want to spend a few minutes because what we have just
gone through is a challenge to a process that has been ongoing for a
long period of time. The President knows I am in agreement with
sunshine. As a matter of fact, the President and I created the
Transparency and Accountability Act so that everything we do gets
published in terms of what we spend and how we spend it.
I agree we ought to be forthright with the reasons we hold
individuals. But let's talk about what a hold is. A hold is saying you
do not agree to a unanimous-consent request to pass out an individual.
In other words, what is a hold? What does it really say?
It really says, first of all, I either may have some very significant
concerns with this individual or I may want to study this individual
for a period of time and their record before I agree to it or I may
want to debate it, the qualifications of the individual.
I agree on the transparency. But I think it is very important that we
go back to say--and not necessarily attune the motive. But when I read
the sign about those who are being held now versus in the Bush
administration, I am reminded that there were over 100 U.S. attorneys
and marshals and 50 judges at the same time who were blocked in
committee so they could not even get to the floor at that time.
So it depends on where one takes the snapshot. There are lots of
reasons to not agree to people being confirmed. I have no problem with
stating my reasons, and I will publish my reasons. I do not have any
problem even publishing them. But I am not sure that we want to
necessarily impugn the motives of somebody who takes advantage of that.
I agree with the Senator from Missouri. I have no problems with
putting it out in the open. But I did ask the question, and at some
point in time I think it would be wise for those who think that, that
we get a parliamentary ruling on what the rule really means because I
think there is some discussion. I do not doubt that the intent of what
was passed was exactly what we intended: to put it out there. But I
think the interpretation or how it may be read is subject to some
debate, and it would be great to have a Parliamentarian rule on that.
Finally, I would say, the other side of this issue, which comes back
to things that are dear to my heart, is the fact that 94 percent of
everything that passes in this body passes by that very process,
unanimous consent.
Unanimous consent says: We will not have debate. We will not have an
amendment. Things will pass because nobody objects to it passing.
There is a real disadvantage for our country in that. The
disadvantage is that the American people never know what we are doing.
They do not get a hearing. They do not get to hear the policy debates
on both sides of the issue. It is good that we work some things out,
but if you watch the floor, what we know is 40 percent of the floor
time is spent in a quorum call.
The real issue we are fighting is the moving, is the reason the
majority leader does not move them, because it takes time to move them.
Right? That is our problem. Time is our biggest enemy in the Senate.
But yet that is exactly what our Founders intended. They wanted it to
be very difficult to change what they had put in place, and they set in
motion this system that says: We are going to make things thoughtfully,
under full consideration, with open debate.
We hear our colleagues all the time say this is the greatest
deliberative body in the world. It is, but not all of the deliberation
goes on on the Senate floor. I have no doubt there are abuses on both
sides. I do not know what the motives are.
When I hold somebody, I hold them because I think they are either not
qualified for the job, I think they have a past record that would
question their character, or I think, in fact, they will do a terrible
job at the position even if they are qualified. And I have the right,
as an individual Senator, to say I am not going to support that
nomination. So I am all for moving and giving Presidents what they
want, but I am not for doing it without the debate and the
consideration that needs to be there.
So I am very supportive of people standing up and saying why they are
holding up people. Through the courtesy of the Senator from Missouri,
she did not list one of the judges that I am sure she was going to ask
unanimous consent on because I was the lone Senator in the Judiciary
Committee to vote against him. Now, I do not know who is holding him.
But the fact is, I do not think he is qualified. I want him to be
debated. I want to have a chance to inform the American people why I
think he should not be a circuit court judge. And that is my right.
To say we are just going to move him without a debate, without
anything but
[[Page S3398]]
a vote, I am not going to do that on people I think are not truly
qualified. So it is not as straightforward as we think. I think we
ought to think about how the process is working, that the leaders do
work on this process. They move a lot of them forward. I understand the
frustration, and I would be giving the same speech if it was turned
around. As a matter of fact, I have before.
So I concur with my colleagues. I think sunlight is a wonderful
thing. I think there are times where we have the problem, and I will
give you three specific examples.
I publish all of my holds. Under the Emmett Till bill, I was
immediately accused of being a racist. I held the bill because I wanted
it paid for, but as soon as I put out that I was holding the bill, I
was accused of being a racist. So there are reasons for people to work
behind the scenes to be able to work on things, to solve the problem
with their concerns, without it becoming public, so that you get the
ultimate action but do not impugn the integrity of people because they
may not agree.
So the potential of letting go of all of this idea that we cannot
negotiate before we come, and that we have to expose everything--what
happened was the special interest groups attacked me ferociously. I
ended up becoming best friends with a very significant individual who
drove that. What has happened today is we still have not done it
because we did not put the money in to pay for it, which is what I
wanted. There is still no special provision. There is still no action.
We passed it 2 years ago.
Next thing was the Veterans Caregiver Act.
I hated veterans because I thought we ought to pay for it, and I
thought it ought to apply to every veteran who had that kind of injury
who served this country. But yet there was a ferocious attack by the
interest groups. I am willing to take that heat. That comes with the
job. But it is certainly not fair to put yourself in that position. I
understand why other Senators will not stand up and say every time why
they are holding a bill when we see that kind of attack coming at us.
Same thing on breast cancer. My sister-in-law, a cousin, all with
breast cancer, two-time cancer survivor myself, but I hated breast
cancer patients. You can see why the idea of objecting to a unanimous
consent and then immediately putting it out there will end up with the
attack of the special interest groups in this country, because you are
trying to make something better but your motives are impugned because
you don't agree with the special interest that is running the bill in
the first place or, in the case of a nomination, the special interest
of the administration. They think this is the individual.
I don't defend. I put it out. I am willing to take that. But I
understand that is not always the best way to get something
accomplished, because you end up burning a lot of energy defending
yourself on something you are totally innocent of in the first place.
You want a different result for a different reason, but that never gets
covered.
This morning has been great. It is interesting that we have had this
debate. My hope is we will have people who will stand up and speak and
put up why they believe what they believe, fight for the principles
they believe in. I think I can defend my principles to the hilt. In
front of 100 commonsense folks in this country, I can get 85 of them to
decide with me. I am not afraid to do that. I am willing to be honest
and transparent and straightforward. But the impugning of motives
worries me, because it has nothing to do with not wanting President
Obama to have his people. It has to do, in many instances, with people
who are truly unqualified or truly are divergent on what their past has
been versus what they say. Those are legitimate reasons to have debate
on individuals who are going to serve a function in this government.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
Mr. FRANKEN. Mr. President, I rise to speak about an issue of great
importance, the foreclosure crisis, and the fears and frustrations of
American families who are at risk of losing their homes. Wherever I go
in Minnesota, people tell me horror stories about losing their homes to
foreclosure. I am sure the same is true of the Presiding Officer when
he goes home to Virginia.
The foreclosure crisis strikes at the heart of the American dream,
threatening Americans' life savings, family lives, and what they have
achieved. The President took a big step in addressing this crisis when
he created the HAMP program which encourages mortgage servicers to
modify home loans to help people avoid foreclosure. But it is often
difficult to implement complex programs and HAMP is no exception. When
HAMP works, it can be great. It can literally save people's homes. But
too often homeowners who try to use the HAMP program find themselves
involved in a bureaucratic process that is riddled with errors. These
are errors that have serious consequences for people's lives.
Take a woman named Tecora who is a homeowner from south Minneapolis.
Incidentally, she is someone who actually would have been helped by a
Consumer Financial Protection Bureau. Several years ago, she bought a
house with an option ARM or adjustable rate mortgage, where the
mortgage payments increased dramatically over the years. Someone should
have told her that the teaser rate her lender offered her might be
misleading. Someone should have told her she might not be able to
afford her mortgage payments in the future. But no one did.
A few years ago, Tecora's payments went up, and she fell behind on
her mortgage. She entered HAMP hoping to save her home. But 7 months
later, she was told by her mortgage servicer that her file was closed
because she had ``declined a final modification of her mortgage.'' Here
is the only problem: She hadn't. And her mortgage servicer had no
record of a conversation or correspondence with her. They had simply
marked the file as closed.
Tecora is lucky enough to be working with a wonderful nonprofit in
Minneapolis, Twin Cities Habitat for Humanity. They are helping her to
fight this mistake. But they have been working on this since March, and
the government resources that are available are not very helpful. In
the meantime, Tecora is constantly worried that she may lose her home
because her mortgage servicer made a mistake.
Or take Barbara, a homeowner from Minneapolis who fell behind on her
mortgage payments because her husband was laid off and her son got
cancer, racking up huge medical bills. Talk about someone who might
lose their home through no fault of her own. Her mortgage servicer
claimed she was not eligible for final mortgage modification, using
incorrect information about her financial situation. When she pointed
out there was a problem, her servicer told her there was nothing they
could do because ``once you have been denied for HAMP, you can't be
eligible again.''
Barbara is fighting this, but someone from the government should have
her back.
Yesterday I filed an amendment with Senator Snowe and seven other
colleagues to fix the HAMP appeals process. People at risk of losing
their homes are going through enough already. They should not be stuck
fighting over mistakes with their servicers without a guarantee that
someone will be on their side. Our amendment would create an office of
the homeowner advocate, modeled after the very successful Office of the
Taxpayer Advocate within the IRS. The advocate's office would be an
independent unit within Treasury, charged with helping homeowners,
their housing lawyers, and their housing counselors to resolve problems
with HAMP. The office would be temporary, lasting only as long as HAMP
does. But while it exists, it would have a lot of authority to help
homeowners and families around the country. For the first time,
homeowners would be able to call an office in the government and know
that someone with the authority to fix a problem is actually fighting
for them.
Staff of this new advocate's office would be able to make sure that
servicers obey the rules of HAMP or risk suffering consequences.
Perhaps more importantly, opening a case with the advocate's office
would delay a servicer's ability to sell a person's house, giving the
office time to resolve the problem before it is too late. The director
of the advocate's office would be someone who can truly fight for the
rights of homeowners. He or she must have a background as an advocate
for
[[Page S3399]]
homeowners and cannot have worked for either a mortgage servicer or the
Treasury Department in the last 4 years. The director will also be able
to help those of us in Congress understand what is going on in HAMP.
Because the office can collect data about the kinds of complaints and
appeals that come in, the director will be in a good place to know what
kinds of changes, both administrative and legislative, need to be made
to the program and can describe them to the Treasury Department and to
Congress.
Once a year the director will issue a formal report laying out in
detail all the problems people have had with HAMP and how they can be
resolved and the way such problems could be prevented or better
resolved in the future.
I know many of my colleagues on both sides of the aisle are
understandably worried about the deficit. I want to be clear about one
thing: This amendment includes no new appropriations. The advocate's
office will be funded with existing money that is set aside for HAMP
administrative costs.
I am pleased to say that our amendment is supported by the Treasury
Department itself. In fact, yesterday it was featured on the White
House's blog as one of ``The Good Guys,'' 10 simple, straightforward
amendments that would strengthen the already good Wall Street reform
bill. It is a good guy, this thing.
My amendment is also supported by a large number of groups, including
Americans for Financial Reform, the Center for Responsible Lending,
National Consumer Law Center, the Leadership Conference on Civil and
Human Rights, Consumers Union, Consumer Federation of America, the
Service Employees International Union, and National Council of La Raza.
I am particularly pleased to say that the amendment is also supported
by several of the most important housing groups in my home State of
Minnesota.
The idea behind the advocate's office is simple, but the impact could
be huge for all the people whom we are here to represent. Please join
me in helping to ensure that HAMP actually works for families around
the country. We owe it to Tecora and Barbara and to all the working
families in our States and around the country.
I also rise to talk briefly about another amendment I am proposing to
reform the credit rating industry. This industry is fraught with bad
practices and perverse incentives. These incentives have produced
inflated ratings which resulted in dangerous junk bonds getting AAA
ratings and thus being eligible for public pension funds. In fact, the
court ruled last week that a suit on this issue brought by CalPERS, the
California public employee pension system, can now move forward.
CalPERS represents nearly 1.5 million California public employees,
including thousands of teachers and public safety officers. CalPERS has
brought suit against the three biggest credit rating agencies--Moody's,
Standard and Poor's, and Fitch. CalPERS states that the big three
provided ``wildly inaccurate and unreasonably high'' ratings to
products that ended up in their investment fund. When these structured
finance products, including securitized subprime mortgages, tanked,
CalPERS pension fund lost almost $1 billion. That is a loss of $1
billion for California teachers, police officers, firefighters, and
public servants from their health benefits and retirement plans.
CalPERS is not the only group to take action. Private suits have been
filed in New York and the attorneys general of Connecticut and Ohio
have brought suit against the rating agencies on behalf of the people
of their States. Ohio Attorney General Richard Cordray filed suit last
fall on behalf of five Ohio public employee retirement and pension
funds. Cordray said:
The rating agencies assured our employee public pension
funds that many of these mortgage-backed securities had the
highest ratings and the lowest risk. But they sold their
professional objectivity and integrity to the highest bidder.
The rating agencies' total disregard for the life's work of
ordinary Ohioans caused the collapse of our housing and
credit markets and is at the heart of what is wrong with Wall
Street today. The inflated ratings cost middle class families
in Ohio nearly half a billion dollars in retirement funds.
But this problem is not limited to California and Ohio and New York.
It has affected my home State of Minnesota. It has affected the
Presiding Officer's home State of Virginia. It has affected every State
in this Nation.
By now, I hope colleagues have heard the details of my amendment to
reform the credit rating system. It would limit the pay-to-play model
currently used in the credit rating industry. The amendment calls for
an independent board to develop an assignment system to match the
issuers of complex financial products with a qualified rating agency to
provide the product's initial rating. This system would apply only to
initial ratings. Issuers could seek a second or third rating from
whichever credit rater they prefer. But the initial rating would put a
check on any subsequent rater which would be disinclined to provide an
inflated pie-in-the-sky rating to a junk product.
By providing for an assignment process, the conflicts of interest
driving the system will be eliminated, and the assignment process will
allow smaller rating agencies that are performing well to get more
business and rating agencies performing poorly to get less. This will
hold rating agencies accountable for their work. It will incentivize
accuracy and increase competition.
I know many of you agree with me, and the list of cosponsors on this
amendment is growing. Most recently, I was particularly pleased to have
Senator Wicker join our effort. Of course, I am deeply grateful for the
leadership of Senators Schumer and Nelson and the support of Senators
Whitehouse, Brown, Murray, Bingaman, Merkley, Lautenberg, Shaheen, and
Casey. Restoring integrity to the credit rating system will provide
real protection for working Americans.
Working people such as Tecora and Barbara are still reeling from the
effects of this recession. Our unemployment rate still hangs near 10
percent. Working Americans together have lost nearly $4 trillion in the
value of their homes and about $3 trillion in the loss of their
retirement savings during this economic crisis.
The Wall Street reform bill before us goes a long way to prevent this
from ever happening again. But there are a few places where it can be
improved. I hope my amendment creating the Office of the Homeowner
Advocate will help struggling Americans keep their homes. My amendment
calling for an overhaul of the credit rating agency industry will
protect millions of Americans from unprecedented losses in their
supposedly safe retirement investments. I ask my colleagues for their
support on both of these critical amendments.
Mr. President, I yield the floor.
Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SPECTER. Mr. President, I have sought recognition to talk about
three amendments pending on the legislation to reform Wall Street. I
begin by noting the spirit of bipartisanship which is present on this
issue, and I think it is a very important sign. There is too little
bipartisanship in this body, and from my travels through my State and
elsewhere, I believe the American people are fed up--really sick and
tired--with the kind of bickering which is present in the Senate. It
took a lot of public pressure and an obvious, great, and serious
problem to bring about this bipartisanship. But it is very important
that it be present in our efforts to reform Wall Street, and I hope it
will be a sign of things to come.
Some time ago, I introduced a bill which would change the decision of
the Supreme Court of the United States which held that aiders and
abettors were not liable under the Securities Act. I have taken that
bill and have submitted it as an amendment with quite a number of
cosponsors. It is amendment No. 3776, to allow suits against aiders and
abettors of Wall Street fraud, cosponsored by Senators Reed, Kaufman,
Durbin, Harkin, Leahy, Levin, Menendez, Whitehouse, Franken, Feingold,
and Merkley.
Prior to the decision of the Supreme Court of the United States in
Central Bank, back in 1994, supplemented by
[[Page S3400]]
the Stoneridge Investment Partners decision, the law was that aiders
and abettors were civilly liable for damages. It is a very odd
circumstance that aiders and abettors remain liable under the criminal
law but are not liable under civil law, and this amendment would
reinstate the civil liability for aiders and abettors. It is narrowly
drawn to apply only to individuals who knowingly provide substantial
assistance to the primary violator. But where you have a stock offering
and you have many parties who are working with the principal offerer,
the offerer can only carry out the fraud with the assistance of quite a
number of people.
This amendment will reinstate what had been the law prior to the
Supreme Court decisions I just mentioned. I think it is worth noting
that Senator Shelby had introduced similar legislation back in 2002.
The second amendment I wish to discuss briefly is amendment No. 3794,
submitted by Senators Leahy, Grassley, Kaufman, and myself, which would
direct the Sentencing Commission to review and amend the sentencing
guidelines for securities and financial institutions which engage in
fraud, and the guidelines should reflect the intent of Congress that
penalties for those offenses should be increased.
Earlier this week, on Tuesday, the criminal law subcommittee held a
hearing attended by quite a number of very experienced people in the
securities field and in criminology. The predominant view was, where
you have a fine imposed, it is not a deterrent at all. It is
insufficient as punishment for the perpetrator, but it is insufficient
for the gravity of the offense. A fine is simply incorporated as part
of the cost of doing business, passed on to consumers.
The provision for a jail sentence would be an effective deterrent. I
base my own view on this subject from my experience as district
attorney of Philadelphia, where I convicted many white-collar criminals
and corrupt political figures, such as the chairman of the Philadelphia
Housing Authority, the deputy commissioner of licenses and inspection,
the stadium coordinator--to name only a few.
If the perpetrators of fraud know they are going to be going to jail,
it will have quite a different impact on their own conduct. One of the
witnesses testified to a celebrated case where an individual was fined
$50 million and was willing to pay that but said, simultaneously with
the payment of the fine, if he had been charged criminally, he would
have fought it tooth and nail because of the concern about going to
jail.
The third amendment I wish to discuss is amendment No. 3806, which
provides that there should be a fiduciary duty for broker-dealers to
avoid conflicts of interest in investments and make such violations a
Federal crime.
In the SEC complaint against Goldman Sachs, the gravamen was--and I
acknowledge and am explicit that these are only allegations--that the
package of mortgages was put together and then was broken up into
securities, and an individual who was involved in putting the package
together, knowing the details, immediately hedged and sold short. That
means he bet against those securities. He thought they would go down.
It is my view that the people who put that transaction together have
a fiduciary duty to tell the investors--even institutional investors--
as to exactly what is going on; that they should know somebody is
simultaneously saying their professional judgment is that the value is
going to go down.
Don't Give Miranda Warnings to Suspected Terrorists
Mr. President, recently Attorney General Holder testified before the
Judiciary Committee in our periodic oversight proceedings and testified
that it was the policy of the Department of Justice to handle the
interrogation of suspects in terrorism cases on a case-by-case
basis. It is my view, which I expressed at the time I questioned
Attorney General Holder, that that ought not to be the policy of the
Department of Justice; that the policy of the Department of Justice
ought to be not to give Miranda warnings to people who are suspected of
terrorism.
The Miranda warnings coming out of the decision handed down by the
Supreme Court of the United States in 1966--and I recall it well. I was
in my first year as district attorney in Philadelphia at the time, and
it was quite a jolt to the criminal justice system that my office
prepared the details to have a card for the police officers by the end
of the week, because they interrogate a great many suspects. But the
Miranda warnings require the interrogator to advise an individual that
he has the right to remain silent; secondly, that anything he says can
and will be used against him; third, that he has the right to an
attorney, and that if he wants to stop answering questions at any time
in the sequence, he can.
When a suspect in a terrorism case is being questioned, there are
issues which are much more important than the conviction of that
individual. The important thing is to gain information, find out who
may be involved, and gather intelligence to prevent future acts of
terrorists. I saw this in some detail during my tenure as chairman of
the Intelligence Committee back in the 104th Congress. The recent
apprehension of the Times Square bomber, who had the bomb positioned to
blow up in Times Square and injure many people is illustrative, and the
information he gave without Miranda warnings. He was Mirandized, as I
understand it from the media reports at some point, but the information
he has given has been very valuable in linking possible coconspirators
to the Taliban in Pakistan.
It is not widely understood, but the only consequence of not giving
Miranda warnings is that any statements made by the suspect may not be
introduced in a criminal trial in a U.S. court. But in the case of the
Times Square bomber, as in the case of the Christmas bomber, there was
sufficient evidence to move ahead with the convictions. But even if
that were not so, the value of getting intelligence information vastly
outweighs the interests of convicting the individual in that specific
case. Even in that case, there is the potential alternative of being
tried by a military commission where the Miranda rules do not apply. So
it is my strong recommendation to the Department of Justice, as I had
discussed it with Attorney General Holder, as I have communicated it to
the FBI Director Bob Mueller, that the policy be changed so that it is
not optional with an interrogator to make a decision on a case-by-case
basis because the interrogator may make a mistake and decide that this
is a case where the Miranda warnings ought to be given, and that may
stop the individual from providing information.
Some of the Senators at our Judiciary Committee hearing were of the
opinion that the chances of getting information were enhanced by giving
the Miranda warnings, and I think that is not only counterintuitive--
not what you would expect--but contrary to experience; that the
likelihood of a person saying he won't talk if he is advised that he
has a constitutional right not to, and then advised that he has a right
to counsel, and then advised he will have counsel provided if he
doesn't have counsel of his own, and once counsel are in the case,
their obligation is to protect the interests of their client. That
decision more likely than not will be to remain silent so the
individual is not harmed with a potential criminal prosecution. I think
the policy of the Department of Justice ought to be to have an absolute
rule: No Miranda warnings in cases of persons suspected of terrorism.
There is some suggestion of legislation on this point. I think that
raises constitutional issues of separation of power, and what ought to
be done is the policy ought to be established now by the Department as
an absolute rule not to give Miranda warnings to those suspected of
terrorism.
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mr. Franken). The Senator from Rhode Island.
Mr. REED. Mr. President, I take the floor today to talk about an
amendment which I have been working on with Senator Scott Brown of
Massachusetts. I am very fortunate to have Senator Brown's help,
insight, and advice because of his extensive experience not only as a
public servant but as a member of the Massachusetts National Guard. As
a lawyer, as a company commander, and as someone who has served in
various capacities within the Guard, Scott Brown knows from firsthand
experience that young troops
[[Page S3401]]
particularly, men and women of our Armed Forces, can be exploited by
unscrupulous business practices, and that it is essential when we
create a Consumer Financial Protection Agency that there be a
particular and explicit liaison for military issues.
Many of these young men and women are not in their home towns. In the
context of today's operations, they are returning from duty in Iraq or
Afghanistan. They have not been spending a lot of money in Afghanistan
because there is not a lot to buy, and they come home and they want to
buy a new car or they want to do something, and they can be exploited.
That exploitation is particularly hard to bear when it is at the
expense of a young person who is risking their life in service to his
country.
Senator Brown and I are working on a joint amendment which would
create an office of military liaison within the Consumer Financial
Protection Bureau. The office would educate and empower servicemembers
and their families to make better and more informed decisions, and it
would work closely with existing personnel with the Department of
Defense and the particular services so there is not only a place to go
with a complaint, but also proactive information to avoid some of these
missteps.
It would help monitor and respond to complaints by servicemembers and
their families, and it would also coordinate efforts among Federal and
State agencies, and that I think is absolutely critical. You have local
insurance regulators, you have local attorneys general, you have the
Better Business Bureau, you have the Department of Defense offices. We
have all of these things, but often, particularly for a young soldier,
where to go and get comprehensive one-stop help is hard to figure out.
Many times they will approach an office and they will be told, well,
you have a good case but we don't do that, and they are sent away.
Given the time and commitment they have to devote to their service,
this is another burden they have to bear, and we hope we can reduce
this burden.
Senator Brown and I are working to develop the details of this
office. I think it is absolutely necessary.
We have looked at--and I have been looking at this problem for years
now, and communicating with the Department of Defense, Secretary Gates,
and others at the Department of the Treasury about how to protect
better our service men and women. We think this initiative will help us
in that regard.
The Department of Defense and the Government Accountability Office
have found that servicemembers are particularly vulnerable to expensive
and often abusive products. I will take off my Senate hat and put on my
old company commander hat in a paratrooper company. You have 18- and
19-year-old men and women. They receive an enlistment bonus of
sometimes $20,000. They don't have a home. They have bought the most
expensive stereo equipment they already can buy. What they are looking
for is something they can call their own, and usually that is a big,
expensive car or truck. When they walk in the door, I think some of
these dealers are aware of their vulnerability: lack of information,
the short time they are back from an overseas deployment, the time
before they are moving on to a deployment. So they are vulnerable. They
are also vulnerable in another sense, not just with respect to products
but there are so many families now where one of the spouses is in the
military and the other spouse is in the military, and that other spouse
is deployed overseas. So you have a member of the U.S. military with
children, with a father or mother overseas, and they are struggling.
Even with the pay they receive at the end of the month, it is a tough
go. They are looking for good deals. There are too many people out
there who are looking for people who are vulnerable to good deals. That
is the reality today in the military. It is a different military force
in terms of Operation TEMPO where I served where you were rather
stabilized in one area for 3 years at least and then moved to another.
Now you have families where the husband returns and 3 months later the
wife deploys. That is a huge burden on the children, but it creates a
kind of uncertainty and turmoil where financial problems are much more
likely to occur. That is another factor of vulnerability, and we have
to recognize that.
We also understand too that some of the more unscrupulous operators
out there know these soldiers are getting steady paychecks, but they
might not last all the way through the month. So they are a good sort
of subject for some of these ploys. They have steady pay. You can go
after them legally to try to attempt to do something, subject to the
Servicemembers Civil Service Relief Act and all the other laws we try
to protect them with. This is a target population in some respects, I
hesitate to say, but unfortunately I think it is true.
The Under Secretary of Defense Clifford Stanley, who has been charged
to be the champion for quality of life for protecting service families,
has stated recently: ``The personal financial readiness of our troops
and families equates to mission readiness.'' He reports that 72 percent
of military financial counselors surveyed--these are the individuals at
DOT, all the personnel whose job is to talk to troops about their well-
being--72 percent surveyed had counseled servicemembers on auto lending
abuses in the past 6 months. So this is not an isolated incident in one
part of the country; this is across the country, across the Department
of Defense, and that is a significant situation.
It is not just auto abuses. Payday loans, for example. As I said,
anybody who is working around a military base knows that come the end
of the month, that paycheck will probably be deposited into the
checking account, so that is a good bet to lend money to. But the
interest rates they are lending at, sometimes the APR is up to 800 to
900 percent. That is staggering. But they are doing it, and they are
doing it to young soldiers who have their heads, some of them, looking
forward to a deployment. Some of them have not even gotten over the
last deployment, and we have to be conscious of that.
Rent-to-own loans. This is where you go to a shop and you say I would
like to rent a TV for 30 days because you am deploying in 45 days. Then
you don't deploy so you keep it, and in some cases you end up paying
two to three times the retail price of the appliance. At least
individual soldiers have to be informed of those practices and know
about it. We have to be sure they are getting that information.
Refund anticipation loan is a classic. You are going to get your tax
refund and if you let us give you a loan right now, we will take that
tax refund. These turn out in some cases to have APRs reaching as high
as 250 percent as you are borrowing against your prospective tax
refund.
Automobile title pawns. Short-term loans are given to soldiers--and
again, as a company commander, I never--well, let me see. It was more
common to see a soldier in debt than to see a soldier investing in
bonds and safe investments. It is the nature of being 18 years old,
with some money and the feeling that you have to spend it. But
automobile title pawns, short-term loans with very high interest rates
to give the title of their car to the lender as collateral. Again, the
whole notion to some youngsters in the military about what is a title,
what is collateral, when they are looking at $2,000 or $3,000 on the
table, that is only details. But when the time comes to pay the loan,
they don't, and they lose their $25,000, $30,000 car or truck, and then
it is a reality.
I think we have to be conscious of this. All of this is compelling in
the abstract. It becomes even more compelling when you listen to the
stories of individual soldiers.
Three years ago, Army SPC Jennifer Howard bought a car while she was
stationed at Fort Riley, KS. As it turns out, the dealership that
arranged her financing charged her for features on the car that she
never got, such as a Moon roof and alloy wheels. You may say to
yourself, how could anybody be so gullible? If you are a young soldier
who just got back or is getting ready to go and you look at a shiny car
and you know you didn't order the alloy wheels and Moon roof but you
are not going to take time checking the manifest to see what you are
charged with--that has been my experience. A dealer should know that,
but apparently, in this case, they charged her anyway.
She says:
The dealership knows that we're busy, we're tired. We don't
take the time, because
[[Page S3402]]
we don't have a lot of time. It's like get in, get out, do
what we got to do. If we get taken advantage of later we'll
deal with it then.
SGT Diann Traina bought her car from a dealership that didn't
actually own it. When it was repossessed, she was stuck with a $10,000
bill. She said:
Trying to concentrate on my job and the mission in Iraq and
then trying to figure out stuff that's going on at home, it
was really stressful.
She goes on to say:
If there's some type of regulation or agency that's out
there to back you up, you know who to go to to complain about
somebody if you're experiencing a problem.
That is what we want to do--coordinate these activities through a
military liaison at a consumer financial protection agency. We want to
do that because it is the right thing to do and because if we cannot
protect the men and women who are protecting us, then we have to ask
seriously whether we are doing our job. I know they are doing their
job.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico is recognized.
Mr. BINGAMAN. Mr. President, I understand that today is set aside
just for debate on amendments and on the bill. I certainly understand
that, and I, accordingly, will not call up my amendment today.
I do want to talk about an amendment I have filed--amendment No.
3892--so that I can put my colleagues on notice about this amendment
and the importance of it. This amendment has a straightforward goal. It
is to protect the existing legal structures that ensure that
electricity and natural gas rates consumers pay will continue to be
just and reasonable and free from manipulation.
I am joined in the amendment by a strong bipartisan group of
cosponsors, Senators who, like me, have worked hard over the years to
strengthen consumer protections in this area of electricity and natural
gas, who have worked cooperatively with me and others on the Energy
Policy Act of 2005 to close the so-called Enron loophole.
I want to particularly express my appreciation to Senator Murkowski,
who is ranking member on the Energy Committee that I am privileged to
chair; Senator Reid of Nevada, who is cosponsoring the amendment, and
Senators Brownback, Cantwell, Cornyn, Wyden, and Corker. All of these
Senators have cosponsored the amendment we filed last night. I am
grateful for their support and the hard work of their staffs in
developing the amendment.
The bill currently before the Senate has several important
objectives. It improves accountability in the financial system. It
provides much needed protections for American consumers of financial
services. It also expands the scope of the Commodity Futures Trading
Commission's authority with respect to regulating commodity markets. I
support all of these objectives. I am very glad to see them included in
this bill.
However, I believe a small but vital addition to the bill is needed
to ensure that America's consumers of energy products are adequately
protected, and that is the issue the amendment I am discussing
addresses.
We need to be sure that both under existing law and under the
expanded authority being given to the Commodity Futures Trading
Commission in this bill, there is no compromise of the role the Federal
Energy Regulatory Commission is expected to perform and the role our
State public utility commissions are expected to perform to regulate
rates and terms with respect to electricity and natural gas markets.
Without this amendment, the bill before us could inadvertently
prevent those agencies from exercising their authority and their
responsibility to ensure just and reasonable rates for electricity and
natural gas consumers. Without this amendment, the Federal Energy
Regulatory Commission's ability to exercise antimanipulation authority
could be called into question. These are enforcement tools to protect
consumers. Congress granted them to the FERC in 2005 as a direct
response to Enron's manipulation of markets in California and the West.
The amendment offers a solution that I believe is consistent with the
philosophy of consumer protection that underlies other parts of the
bill before us. The effect is simple: The amendment preserves the
authority of both FERC and the States to ensure that electricity and
natural gas rates are just and reasonable. Direct examination of prices
is central to each of those agency's mission. In FERC's case, this
authority is longstanding; it was established over 70 years ago.
Without this amendment, a critical check on energy prices may be
lost. That is true for two connected reasons:
First, the CFTC's so-called ``exclusive jurisdiction,'' which is in
the Commodity Exchange Act, could be interpreted to operate to prevent
FERC and State public utility commissions from acting where their
jurisdictions intersect the Commodity Futures Trading Commission's
jurisdiction.
Second, the CFTC's regulatory mission differs significantly from that
of the FERC and from that of the State public utility commissions. The
CFTC's mission is to protect market participants and to promote fair
and orderly trading on those markets. It doesn't directly examine
commodity prices in these markets. It does not consider the
reasonableness of rates charged to consumers.
While properly functioning futures markets are important, the
Commodity Futures Trading Commission cannot and does not have the
authority or responsibility to provide protections that are provided by
the Federal Energy Regulatory Commission and the State public utility
commissions under their respective authority.
As I have said, I support the bill generally. I believe it is
essential to ensuring that consumers are protected. However, both I and
my cosponsors on the amendment strongly believe it is necessary to
preserve existing consumer protections that may otherwise be lost.
It is a simple, straightforward, tailored amendment that does not
create loopholes in jurisdiction. It does nothing to diminish the
ability of the CFTC to regulate commodity exchanges such as NYMEX or to
require public disclosure of swaps or any other authority they have to
regulate the mechanics of commodity markets, including those that trade
energy commodities.
Once again, I thank my cosponsors for working to develop this
amendment. I urge my colleagues to support the amendment. At the
appropriate time, I will seek to call the amendment up and have it
voted on by the Senate.
Seeing no other Senator seeking recognition, 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. WHITEHOUSE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Emergency Supplemental Funding
Mr. WHITEHOUSE. Mr. President, I wish to speak on a couple of
subjects. The first is to express my regret that the supplemental
funding to help Rhode Island in the wake of its unprecedented, historic
flooding was stopped on the floor today by a Republican objection. I
would have hoped that when a true emergency happened in somebody's home
State, with a Presidential disaster declaration, and Senators were
working to remedy that, the traditional deference for emergency
spending would be appropriate.
Senator Reed, as the senior Senator and a member of the
Appropriations Committee, is the leader on this issue. He and I will
continue to work to get this done for Rhode Island. It is regrettable
that conditions on the Senate floor are such that emergency spending--
while we still have people out of their homes, flood damage,
unprecedented in Rhode Island's history--is not something on which we
simply could have agreed.
There are floods in other States, and I assume similar rules will
apply when they come forward.
Exorbitant Interest Rates
The second issue I wish to mention, since I see the distinguished
chairman of the Banking Committee, is I continue to hope for and argue
for the amendment I have proposed that will do something very helpful
for something that bedevils constituents in every single one of our
States, which is exorbitant, ridiculous interest rates.
Every day in the mail in every one of our States people are opening
offerings from the big credit card companies;
[[Page S3403]]
proposals that, particularly when certain tricks or traps are
triggered, kick them into 30 percent or higher interest rates.
It was not too long ago in all of our lifetimes that a solicitation
such as that would have been a matter to bring to the attention of the
authorities in our States because it would have been illegal under
State law to charge that kind of reprehensible interest rate.
We as a Congress never decided we were going to overrule all those
State laws; State laws that have existed since the founding of the
Republic, a tradition of interest rate regulation that in our culture
goes back to the Code of Hammurabi, goes back to Roman law. We never
decided as a Congress: Oh, we are not going to allow States to protect
their consumers any longer, protect their citizens any longer against
exorbitant interest rates.
It happened in a strange, backhanded, almost inadvertent way. It
began with a statute in 1863 that said a transaction was governed by
law based on where it was located. In 1863, there was not a lot of
interstate banking. So there did not need to be a lot of discussion
about what ``located'' meant. But by 1978, interstate banking was
fairly common. The question came to the Supreme Court, what that word
``located'' in that Civil War statute meant.
In a very unheralded decision at the time, a decision that did not
appear to be of any significant consequence, the U.S. Supreme Court
said: If you have a bank located in one State and a consumer located in
another State, the law is going to be the State of the bank. It had to
be one or the other. They chose the State of the bank. The Marquette
decision it was called. It involved the Presiding Officer's State,
Minnesota. The decision said it is going to be the bank.
It did not seem very controversial. Why not? The problem was that the
banking industry began to figure out that there was a loophole. They
began to figure out if they could go to the States with the worst
consumer protection laws in the country or if they could go to a
friendly Governor and say: Hey, I will make you a deal; you clear out
your consumer protection laws, and we will come and we will locate a
big, high-rise business full of call center people in your State--from
that State, they could operate nationally.
Because of this funny 1978 decision from an 1863 law, bit by bit all
of the constitutional Federalist States rights protections, where
sovereign States have the right to protect their own citizens against
outrageous and exorbitant interest rates, became ineffectual. We never
decided that as a Congress. If we had that debate, I will venture that
it would have gone the other way. It would be preposterous for us as a
Congress to look out across America and say: OK, we are going to pass a
law that says that the worst State for consumer protection regulation
is going to be the State that governs. Obviously, it would create a
race to the bottom. Obviously, it would completely disenfranchise home
States trying to protect their own citizens from States a country away
that, frankly, couldn't care less.
A Rhode Island consumer being victimized is not the problem of the
State of South Dakota. It just is not. We would never have passed that
law. It would have been an outrageous law to have passed. Yet because
of this funny, quirky Supreme Court decision, that is the way the law
in practice developed because smart bank lawyers figured out this trick
and have taken advantage of it.
It is not just consumers who are getting clobbered as a result. It is
also unfair to local banks. A Rhode Island bank is under Rhode Island
interest rate laws. But an out-of-State bank, the big Wall Street banks
with their big credit card subsidiaries, can play by their own rules,
by the worst rules in the country. A Rhode Island bank, a Connecticut
bank, a Minnesota bank--they have to play by local rules. It is not
fair to local lenders to have this discrepancy, because it is bad for
consumers, because consumers all across this country are paying
interest rates now that would have been illegal just two or three
decades ago, because it is anticompetitive, because it allows the
biggest banks to compete unfairly against local community banks, Main
Street banks, disadvantaged against these big Wall Street monsters
because nobody in Congress ever made a decision nor would we have made
a decision that this was OK. It is time we closed this loophole.
I look forward to when we return to have the chance to get a vote on
that amendment. I very much hope it will be a bipartisan vote because
the principles that the Republican Party has espoused about local
control, States rights, protecting local institutions against big, out-
of-State national entities, federalism, and our common interests across
this floor in consumer protection all suggest that it is the kind of
thing that should not divide us Republican against Democrat. This is
closing a loophole that never should have existed, that we never would
have voted for if we had the chance to vote for it, and that has
resulted in immense harm to the public of all of our States as a result
of these exorbitant interest rates.
As I said, the interest rate solicitation that is landing in
Minnesota today, that is landing in Connecticut today, and that is
landing in Rhode Island today would have been a matter to bring to the
authorities but for this loophole.
Nominations
The final issue I wish to talk about--I guess every Member on the
other side of the aisle has left town, so there is no Republican in
Washington, DC, to come and object to the unanimous consent request I
would like to offer for the stalled nominees.
There are now over 100 names on the Executive Calendar, which is the
list of everybody who is pending awaiting confirmation by the Senate.
At a similar time in President Bush's administration, the number was
20. Those numbers do go up and down, as our Republican friends have
said. But just a few days ago, the number was over 80, and the number
at the equivalent time in President Bush's administration was 8.
There is a clear, systemic attack on the Obama administration's
ability to staff its administration and, thus, govern. What is enabling
it is the fact that you do not have to have a reason to oppose a
nominee. Why don't you have to have a reason? You don't have to have a
reason because you can do it secretly. Nobody even knows that it is you
opposing the nominee. If you want to have a systemic attack on a
President's ability to govern, what a good thing a secret hold on the
President's nominees is.
It has always been around, but it has been abused to a point where we
need to be rid of it. We need to be rid of it. The right of a Senator
to hold a nominee should be protected, but that Senator should have to
stand and say that they are doing it. If they do not have a good enough
reason to hold a nominee that they are willing to stand up and disclose
it, then that is, frankly, not a legitimate hold. The secret holds have
to end.
The situation we are in right now, because there is a Senate rule on
point, is that the list of nominees has been read through. Great credit
is due Senator McCaskill who has read through the bulk of these--76 of
them I think she has been through in the first round. We asked for
unanimous consent on all those nominees. We received objections. I
received an objection on a nominee that I asked for from a Senator who
had voted for that nominee in committee. He voted for the nominee in
committee but came to the floor and objected. The nominee had cleared
the Judiciary Committee with zero opposition, and yet on the floor,
held and held and held, anonymously--secretly.
Under the Senate rules, when you have asked for unanimous consent and
you have had that objection, you have 6 days to come clean on your
hold. Do you know how many Republican Senators followed that rule? One
did. One did. Senator Coburn of Oklahoma disclosed he had been holding
six or seven appointees. That still leaves 100 on the Senate floor
right now on the Executive Calendar.
We began early this morning calling them up to see if those holds
were still there because after 6 days, you are either supposed to have
disclosed it or relinquished it. Sure enough, we kept on getting
objection and objection and objection.
So only two things can be true: Either they are just flagrantly
violating the rule--what are we going to do?
[[Page S3404]]
There is no enforcement mechanism built into the rule. They are just
saying: Make us follow the rule. You can't make us, so we are not going
to follow it. We know it is a rule--we voted for it, and it passed with
enormous bipartisan support. It is a rule of the Senate, but we just
choose not to follow it because we get too much advantage out of secret
holds. Senate rules don't really apply to us unless you can make us
follow them.
That is a sad place for the Senate to be, if that is where we are on
this issue. But there are only two alternatives. The other one is that
they still have holds, but it is not a hold by the same Senator who had
the hold when the unanimous consent was asked for and, therefore, he
has, under the rule, relinquished his hold. But what he has done is
gone and found another Senator and gotten that other Senator to take up
the hold for him. That has been called a couple of things on the Senate
floor. It has been called the hold switcheroo.
For those of us who are prosecutors, it looks a lot like money
laundering. It is hold laundering. The person who has the real
principal and interest with the hold has gotten someone else to aid and
abet their scheme to interrupt the process of nominations and to
violate the rules by taking on the hold for them and allowing them to
dodge the rule. That is not a great way of doing business either.
So whether we have a direct and outright willful violation of the
Senate rules--massive violation of the Senate rules--or a scheme to
hold-launder--to get people to aid and abet you in your secret hold and
dodge the rule that way--neither is a great situation. So we need to
fix the rules so this cannot continue. But it is a sad reflection on
the use of the secret hold that we are in a circumstance now where the
only two possible sets of facts are those two. It just plain isn't
right.
If you are here as a Senator, you should follow the rules of the
Senate. If you are not prepared to do that, find something else to do.
There are plenty of people who would love to serve here. To find
another Senator to put a sham hold in to protect your hold so that you
can dodge this rule is, frankly, unscrupulous. That is something that,
if you could figure out who it was and you could get them in front of a
jury and make that case, oh boy. But we don't have the enforcement
mechanism. So we have to continue.
But let me tell you who I was going to be asking for. There are two
judges for the Fourth Circuit, Albert Diaz and James Wynn. They are a
Republican and a Democrat. They are paired for appointment. They
cleared the Judiciary Committee with only one opposing vote. One was
unanimous and the other was everybody but one. They have been on the
calendar now for weeks, and I would like to ask unanimous consent, but
I am informed that because there are no Senate Republicans in
Washington I am unable to do that right now. But they have been on the
calendar for many weeks and there is no reason for them not to be
confirmed.
The following judicial candidates, or nominees for a judgeship, are
also pending: Jon E. DeGuilo to be a U.S. district judge for the
Northern District of Indiana; Audrey Goldstein Fleissig to be a U.S.
district judge for the Eastern District of Missouri; Lucy Haeran Koh to
be a U.S. district judge for the Northern District of California; Tanya
Walton Pratt to be a U.S. district judge for the Southern District of
Indiana; Jane E. Magnus-Stinson to be a U.S. district judge for the
Southern District of Indiana; Brian Anthony Jackson to be a U.S.
district judge for the Middle District of Louisiana; Elizabeth Erny
Foote to be a U.S. district judge for the Western District of
Louisiana; Mark A. Goldsmith to be a U.S. district judge for the
Eastern District of Michigan; Marc T. Treadwill to be a U.S. district
judge for the Middle District of Georgia; Josephine Staton Tucker to be
a U.S. district judge for the Central District of California; Gary
Scott Feinerman to be a U.S. district judge for the Northern District
of Illinois; and Sharon Johnson Coleman to be a U.S. district judge for
the Northern District of Illinois.
All of these candidates are waiting. They are on the calendar, all
pending, all cleared with either unanimous or very strong votes out of
the Judiciary Committee, and all blocked. Yet I believe all are
supported by Republican Senators from their home States. These are all
district judges.
This is a judge who sits in a local district within a State. These
are not people who are setting national policy. These are people who
are handling local trials, local motions practice, local Federal court
litigation.
If you have the support of your two home Senators, and if you have
cleared the Judiciary Committee, that ought to be pretty simple. That
ought to be pretty simple. But they are being held, and they are being
held for a reason. They are being held because, if the Republicans can
force the Democrats to burn floor time, it takes floor time away from
the work we need to do to rebuild our economy. It takes floor time away
from the work we need to do to clean up Wall Street. It takes floor
time away from the bills we need to pass to fund our troops overseas.
It takes floor time away from our ability to do the work of governing.
It is obstruction, pure and simple.
Because there are only so many hours in a day, there are only so many
days in a week, and only so many weeks in a month, it is a zero sum
game. You take time and make us spend it on these judges, and it is
time we can't spend on floor work on the necessary legislation we have
to get through. That is why we see these strange votes where we have
cloture demanded and all that procedure; and then when the vote is
finally taken we have 98 to 0 or where we have had 100 to 0. Why go
through all that trouble when we end on a vote of 98 to 0 or 100 to 0?
It is because there are ulterior motives. It is to burn the floor time
of the Senate and to give the leader less and less time to accomplish
the things that we need to accomplish.
So I can go through many other names, but I will not do that now. I
will await the return of a Republican Member of the Senate to
Washington so that somebody can be on the floor of the Senate to either
object or not object to these nominees. I would hope at this point that
we will find they do not object. That would be consistent with the
rule.
If they have been on the calendar this long, if they have had their
unanimous consent objected to, if the 6 days have run and if nobody has
come up and actually said they have a hold on that person, then a
unanimous consent ought to pass. Under the rule, a unanimous consent
ought to pass. If it doesn't, it is a sign that they are either flatout
violating the rule or that they have done this hold laundering scheme
with a colleague to dodge out from under the rule. I think neither is
credible and we need to work our way through this process. So on the
next possible occasion, I will be doing that.
I thank the Presiding Officer for his courtesy and his time. I yield
the floor, and 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. WHITEHOUSE. 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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