Lamar Alexander

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ALEXANDER. Mr. President, last week I said on the Senate floor that serving in the Senate is becoming like being asked to join the Grand Ole Opry and not being allowed to sing. Here is what I meant by that. Take last week. The Democratic majority leader from Nevada brought up unemployment compensation. How do we help unemployed Americans go to work? I can't think of an issue more important to our country. All of us have ideas about how to do this, but he brought up his idea. It hasn't been considered by a committee. When he put it on the floor, he cut off amendments, he cut off debate, and he cut off votes. Soon we will be discussing minimum wage. How to increase family incomes in America is the foremost issue facing our country. We all have ideas about that. We were elected to deal with it. We have been in a long period of unemployment. We believe the economy is bad for a variety of reasons. We--on this side--believe a big, wet blanket of rules and regulations have been increased by the Obama administration. We want to debate that. We want to talk about it. We don't believe the old idea of a minimum wage is the solution. We are for maximum new jobs and maximum job training and learning opportunities so people can get those jobs. We want the economy to grow. We should be debating that. That is why we are here. But the Senator from Iowa, my good friend and the distinguished chairman of the Health, Education, Labor, and Pensions Committee, said, No, we won't hear this in committee. There might be embarrassing amendments. So, unfortunately, insofar as the way the Senate functions, this year is beginning just as last year ended, and Republicans objected to this. Some of the news outlets wrote down--I read some of the stories this morning--and they said, After a while, the Senate will begin to debate internal procedure and process. Sometimes process is important. We have something called the U.S. Constitution. It is kind of old-fashioned. It has a lot of process in it. In fact, it has a checks-and-balances system in it that is envied by the world. There are citizens all over the world who would like to have a government that functions in the way ours has for over two centuries. Process can be very important. In this case, as the Republican leader often says, process and procedure are substance, because when we are not able to talk about unemployment compensation, when we are not able to offer our ideas about how to help unemployed Americans go back to work, that is substance. That is a central issue facing our country. We think we have better ideas than the idea the majority leader put on the floor and we would like to present those ideas on behalf of the people who elected us. We are not the important ones. We are all political accidents here--all 100 of us. We all know that. We worked pretty hard to get here and we had some luck to go along with it. What does that give us? Not just a chance to have our say, but to have a say on behalf of the people of Tennessee, in my case. They want me to weigh in on the big issues before our country. ObamaCare is one of the reasons so many people are unemployed. I am sure the other side doesn't want to talk about that. I wouldn't if I voted for it. But I was in a room with the chief executive officer of a major restaurant company who told me that because of the new costs of ObamaCare on his large company, they were going to start running their restaurants with 75 employees instead of 90 employees. That doesn't sound like more jobs to me; that doesn't sound like help for unemployed Americans. This is the forum in which we debate these issues. So I suppose it might be embarrassing for our friends on the other side to debate these issues, but it shouldn't be. If they believe in them, they should want to stand up and defend the issues, just as strongly as we want to say our point of view. I suspect there are a good number of my Democratic friends who have amendments they would like to offer on putting unemployed Americans to work. They might wonder, How did I ever get to a U.S. Senate where I can't do that, just as someone might wonder in Nashville, why did I join the Grand Ole Opry if they won't let me sing? The majority leader's actions go to the very heart of our government. It is not about internal procedure, it is not about process. It is about the major issues facing our country. Tennesseans didn't send me to Washington to rubberstamp the majority leader's ideas--not this majority leader or any majority leader. Tennesseans sent me here to represent them and to advocate their point of view and to give them a say on ObamaCare, on balancing the budget, on fixing the deficit, on helping unemployed Americans find jobs, on dealing with wages, on raising family incomes. That is why I am here. That is my job. And they expect me to have a chance to have not my say but their say on the issues that face the American people. By his actions, the majority leader is destroying the Senate, which was once described as ``the one touch of authentic genius in the American political system.'' There is a new book out which I mentioned on the floor the other day. My guess is it will become the leading history of this body. It is written by the former Senate Historian, Richard Baker, and the late Neil MacNeil, who wrote what many consider to be the best history of the House of Representatives. They say in the book that the genius I just talked about--``the authentic touch of genius that is the Senate''--the major reason for that is the opportunity for extended debate. They point out, as I think any of us would, that there have been abuses with the filibuster, more delays than are necessary; that the Senate doesn't work as well as it should not just over the last few years but over a long period of time. But the fact is, in this body, which is virtually unique in the world in requiring that 60 of 100 Members must agree before we cut off debate, that helps forge consensus. That helps forge consensus, as we did on the student loan agreement earlier this year. There is a good example of a good debate, of different opinions on both sides of the aisle, of Democrats and Republicans working together. When we finally got to 60 or 65, we got a result with the Republican House of Representatives and the Democratic President going along with us, and it was a victory for the students of this country. We cut in half the interest rates they pay and took the whole argument out of a political football. The Senate was created for three reasons. The first is to encourage and forge consensus. We govern a complex society with consensus, not with ramrodding partisan ideas through one body or the other. We have a body for that; it is called the House of Representatives. Win it by one vote--the Rules Committee has two times as many members of the majority as the minority, and the majority can pass anything they want to pass. Send it over here, and the tradition has been to slow it down and cool it off. We take a second look. The passions of the democracy--what de Touqueville called in his trip across America in the early 1800s--the great danger he saw to our country was the tyranny of the majority. He saw that as one of the two great dangers to the American democracy. And the Senate has been, through all that period of time, the guardian--the guardian of minority rights, the guardian against the excesses of the Executive, which in our country is the President. The Founders didn't want a king, so they set up this elaborate system of checks and balances, and the Senate is the key to that. What is different about the Senate is the opportunity for extended debate. But, the Majority Leader now brings up a bill--one Senator's idea--cuts off debate, cuts off amendments, cuts off votes, that is it. That is not the way to govern our country, particularly on an issue of how do we put unemployed Americans back to work. The Senate is losing its capacity to do the things it was created to do in the following ways: No. 1, less advice and consent. On November 21, the Democratic majority decided 60 votes are no longer needed to cut off debate on most Presidential nominees. So try asking a nominee: Will the National Security Agency stop monitoring the Pope? Now there will be no response, because the majority can ram through nominees. The Senator from Nevada, the distinguished majority leader, said in 2006--I heard him and he put it in his book--that cutting off--allowing the majority to cut off debate would be the end of the Senate. The end of the Senate. Apparently, he changed his mind. Operating without rules. The distinguished Senator from Michigan, Senator Levin, said on November 21: ``A Senate in which a majority can change the rules at any time is a Senate without rules.'' It is as if the Red Sox, finding themselves behind in the ninth inning in the World Series, added a couple of innings to make sure they won. When he wrote the Senate rules, Thomas Jefferson said it is not so important what the rule is, but that there be a rule. Ignoring Executive orders. While it ignores its own rules, the Senate meekly watches as the Obama administration changes the health care law, suspends immigration laws, and rewrites labor laws. Tolerating more czars. President Obama has appointed more czars than the Romanovs did. In both Russia and the United States, czars don't report to elected representatives. Not passing appropriations bills. Hopefully, that is going to change. But the Senate's repeated failure to pass appropriations bills canceled the Senate's check on the Executive's power to spend. Illegal recess appointments. That is being debated today in the Supreme Court. The majority acquiesced when President Obama used his recess appointment to appoint members to the National Labor Relations Board when the Senate was not in recess. Fortunately, three appellate courts disagreed with the President and the Supreme Court will decide. Hopefully, the Supreme Court agrees with the appellate courts. Otherwise, the Senate might go out for lunch and return and find that we have a new Supreme Court Justice. There is blame to go around, and I am sure any of my friends on the other side who are listening would be quick to point that out. Baker and MacNeil pointed that out in their book. There have been abuses of the filibuster. It is true that some Republicans have unduly delayed nominations and unduly delayed legislation. And that is not new. I have seen it in other years. I have pointed out on this floor how Senator Allen from Alabama, in the 1970s and 1980s, would tie the Senate into knots with his knowledge of the rules. Senator Metzenbaum from Ohio would sit right down there on the front row and if a Senator wanted to pass a bill, that Senator had to go see him, and if the Senator didn't amend his bill to do what Senator Metzenbaum wanted done, he would use Senate rules to block it. So this has never been an easy place to get something done, but it wasn't ever supposed to be. It was supposed to be a place where every single Senator is an equal, where every Senator's voice is not his or her voice but the voice of people that Senator represents. It is supposed to be a place of extended debate where almost any amendment can be discussed for almost any length of time, and usually the clock is all that would cut the debate off. But there has been a procedure by which a consensus can cut it off, and when we reach that consensus, we usually reach a result that can even pass unanimously after it has been massaged and changed and worked through and considered. I think of the legislation we just passed on compounding pharmacies and making drugs more safely; making drugs more safe, 4 billion prescriptions a year. It went through the committee process, through both Houses, and eventually passed unanimously because we reached a consensus. The delays that have occurred on nominations because, so-called, of the changes in rules on November 21 are hardly a crisis. Nonjudicial Presidential nominees have almost never been denied their seats by a filibuster. Before the November rules change, there were two for President Obama, three for President Bush, two for President Clinton, and none before that, in history. That is seven. Only seven nonjudicial Presidential nominees, in the history of the Senate, had ever been denied their seats by a filibuster. Maybe it takes a while, but that is so we can ask questions. The day before the rules were changed, I looked at the Executive Calendar--this calendar we have on our desks. It includes every single nomination that can be brought to the floor. If I have my numbers about right, there were not many people on the calendar. Half of them have been held up by the Senator from South Carolina who is trying to get some answers on Benghazi. That has happened many times in this body. If Senators want an answer, they do that to make the Executive tell them what is going on. There were only 8 nominees, I believe, who had been on the calendar for more than 9 weeks and only 16 others who have been on for more than 3 weeks. So there were not very many people on the Executive Calendar, and we had changed the rules to make it easier to confirm them, anyway. There were 13 district judges, so the majority leader could bring them up on Thursday--Friday is the intervening day--and Monday there could be 2 hours of debate on each judge, and we could confirm four or five by doing it over the weekend in that way. But, no, we had to change the rules in the way that it was done. The Senate does not need a change of rules; it needs a change in behavior. The current majority leader, I would respectfully suggest, could start by following the example of Majority Leaders Robert Byrd, a Democrat, and Howard Baker, a Republican, during the 1970s and 1980s. Here is how they would do things, and this is the way the Senate ran until 5 or 6 years ago. Baker and Byrd would bring legislation to the floor. Usually they would go to a committee and say to a chairman: We will put it on the floor if you and your ranking member of the other party agree. So you would have two Members--a chairman and a Republican ranking member; not the leaders--standing up there at the two desks. They would put the bill on the floor that already had gotten a consensus in the committee. Then, the majority leader would ask for amendments to the bill, and sometimes he would get 300--300. Then, he would ask consent to cut off the offering of amendments and to consider voting on them in an orderly way, all of which was written out in the unanimous consent agreement. Of course, he would get the unanimous consent to do that because everybody who wanted to offer an amendment could. Then they would go to work. They would start on Mondays, and they would work into Monday night and on Tuesday and on Wednesday. They would table many of the amendments. That does not take long: 10 minutes of debate and table it with 51 votes. Senator Byrd said in his book that when the Panama Canal Treaty came up at a time when he was the majority leader and Baker was the Republican leader, they had 192 amendments and reservations--many of them killer amendments--but he allowed every one of them, and he defeated every killer amendment. But he said: If we had not allowed them, we never would have gotten the ratification of the Panama Canal Treaty. The Senators had their say on the Panama Canal Treaty. So after a while, those 300 amendments that might have been offered on Monday are whittled away. Some are accepted, some are dropped, some are voted on, some are tabled, and by about Thursday--the majority leader has said at the beginning of the week: We are going to finish the bill this week--people are ready to go home. Then they begin to think more carefully about whether their amendment is really that important. So they vote Thursday night, and they maybe vote Friday, and if they have to, they vote Saturday. But most of the time they finish their work on Friday. They were not afraid, those majority leaders, to allow amendments. They were not afraid to defeat amendments. I believe if the majority leader would allow the Senate to work in this way, he would not have any problem on this side of the aisle with efforts to keep bills from coming to the floor. Almost all of the effort to keep bills from coming to the floor has to do with minority Members not being allowed to have the say of the people who elected them to serve. Instead, the majority leader has set records for bringing legislation to the floor without committee approval, cutting off amendments, and records for cutting off debate. So there are no votes on reforming military sexual assaults, completing Yucca Mountain, sanctioning Iran, and other vital concerns, no votes on unemployment compensation or how to put unemployed America to work. The Senate has become a Tuesday-Thursday club run by one Senator and orchestrated by the White House. One reason this is tolerated is that 43 Senators are in their first term--43 Senators are in their first term--most of them in the majority. They have never served in the minority. They have never seen the Senate function properly, the way it functioned for most of its 200-plus year history. Most importantly, those Senators in their first term may not have heard Senator Byrd's final address when, among other things, he said that any majority leader could run the Senate under the then-existing rules. I ask unanimous consent to have printed in the Record, following my remarks, an article from the Wall Street Journal from last Friday on this subject. In an important address last week, Mr. McConnell, the Senator from Kentucky, the Republican leader, described three ways to restore the Senate: full committee consideration of bills; bills thoroughly debated, with robust amendments on the floor; and a decent week's work. We might work Monday through Friday instead of Tuesday through Thursday. The Senate could change overnight. It does not need a change of rules. The Senator from Kentucky did not say that it has always been easy to navigate the Senate. The ideal regular order never has and never will be without exceptions. But what we call the regular order has become the exception rather than the rule. I would hope we do not wait until November or the next year to restore the Senate to its proper place as the authentic piece of genius in the American government--the unique body, the unique senate in the world because of the opportunity for extended debate. It could change overnight by considering bills most of the time that went through committee, most of the time having a robust amendment process and debate on those bills, and vote on them. If it took Monday through Friday to get that work done, then we should do it. Otherwise, the great issues facing our country--what kind of health care system do we have? How do we help unemployed Americans go to work? How do we improve learning opportunities in this new America, where so much is decentralized and so much is on social media? These are very exciting times. Daniel Boorstin, the former historian of the United States and Librarian of Congress, in his wonderful books on America, used to talk about verges, that when America was at a verge--and we have been there many times in our history--that we were more open to innovation, that we were more self-aware of where we were, that we tended to rely on each other, and that we changed our country for the better. That is where we are today. We want better learning opportunities, better job training, better health care. Washington is in the way of much of that, and we need to debate how to change that. So I would hope my friend, the distinguished majority leader, will listen to what the Republican leader had to say and reflect on the many years he has served here and realize all we are saying is we would like to have a say on behalf of the people who elected us on the great issues facing our country. Bring a bill through committee, bring it to the floor, let us have debate--defeat our amendments; you should be able to with a tabling motion--and then let's come to a result. I think the American people would gain much more confidence in the Senate because it would deserve more confidence if it conducted issues in that way. But this diminishing of the Senate is tragic for a country with large problems to solve and whose system of checks and balances has been envied around the world. I thank the Presiding Officer. I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I congratulate the Republican leader for his remarks. Without being presumptuous, I think I could express the hope that all of us feel that he will help us restore the Senate to the role the American people need it to play in this country. There is a new history of the Senate, ``The American Senate,'' written by Neil MacNeil, the late Neil MacNeil, who wrote the best book about the House of Representatives, and the former Historian of the Senate. I suspect this book is likely to become the best chronicle of this body. It speaks of the Senate as ``the one touch of authentic genius in the American political system.'' It needs to be restored to that position. The Republican leader is absolutely right. This does not require a change of rules. This requires a change of behavior--some behavior on our part on this side of the aisle, but a great deal of behavior on the part of whomever the majority leader of the Senate is, because that is the person who sets the agenda. The debate for this year really is: Will this year be the end of the Senate--which is what the distinguished majority leader said it would be if we ever changed the rules in a way that allowed the majority to cut off debate--or will it be the year in which the Senate is restored, restored to that role of authentic genius in the American system? I hope it would be that way. I hope it starts tomorrow because it could be started as quickly as tomorrow because it requires no change of rules, only a change in behavior, and that could happen as soon as tomorrow. But we know it can happen after November if we have six more Republican Senators on this side. We have heard your commitment on the floor today about how the committees can operate, about how amendments should operate. We have heard that before in our own meetings, in private lunches, and I am glad you took the occasion in this eloquent way to say to the American people and all of us what we expect out of service in the Senate. I had the privilege, as the Senator from Kentucky did, of seeing Senator Mansfield as the leader of this body. I have not served in the Senate as long as others who were here, but I came here--it seems hard to believe--47 years ago as a young aide to a Senator who eventually became the majority leader of the Senate, Howard Baker. Those were the days of Mansfield and Dirksen. Those were the days when Barry Goldwater and John Tower and Hubert Humphrey would engage in hours of debates here and hug each other at the end of their discussion. Those were the days when the Democratic majority leader would offer an amendment of a Republican Senator whose amendment had been denied unfairly, he thought. Those were the days of committees that did their work and Republicans and Democrats who came to the floor and together offered bills. I saw the Senate in the 1970s when I came back and Senator Baker was the Republican leader and I saw it in the 1980s and the 1990s. I saw what the Republican leader said--let's take the Panama Canal debate. Senator Baker and Senator Byrd would run the Senate in the way the Republican leader suggested, in the way most majority leaders have suggested. They would come to the floor and they would put a bill on the floor that a Republican and a Democratic Senator agreed on--let's say it is Senator McCain and Senator Levin, Senator Inhofe and Senator Levin. They would ask for amendments. They might get 300 amendments. They would then ask for unanimous consent to cut off all the amendments and of course they would get it because everyone had a chance to have his or her amendment. Then within that unanimous consent agreement would be a procedure for how to vote on them, and they would say: We are here on Monday and we are going to finish this week, just as the Republican leader had said. It does not work perfectly. There was a Senator from Alabama, and then there was a Senator from Ohio, and they did all they could to put glue in the works. But the majority leader had all the tools he needed to run the Senate in that way. Everybody got a say. Senator Byrd, in his last remarks before the Rules Committee, and I was there to hear it, said we should never tear down this necessary fence. He meant the filibuster that protects us from an excess of the executive and runaway popular factions. But he said one other thing. Senator Byrd said in 2010 that any majority leader had the tools he needed already in the rules to operate this Senate in the way it should be run. So we need a change in behavior, not a change of the rules. One more example that goes to the point the Senator from Kentucky made. How important is it to be able to offer an amendment? Serving in the Senate today is like being invited to join the Grand Ole Opry and not being allowed to sing. The people of Tennessee expect me to have an opinion on their behalf about ObamaCare, about Iran, about all of the issues--how do we help unemployed Americans get a job, about the minimum wage or the lack of it. They expect me to have a say about that, not because they want to hear me but because I am their voice. Senator Byrd wrote eloquently about that in his book. He talked about the Panama Canal debate. There was a tough debate. They didn't just bring the Panama Canal treaty here and plop it on the floor and say we are going to vote on it next Monday. Do you think it would have gotten 67 votes? No, it would not have gotten 67 votes. How did it get 67 votes? The Democratic leader, Senator Byrd, and the Republican leader, Senator Baker, read David McCullough's book and changed their minds and they both supported the treaty. Then they allowed every single amendment and reservation that anybody wanted to offer. Senator Byrd wrote that many of those were killer amendments. In other words, they were designed to kill the treaty. But, he said, we allowed every one of them--192 of them. Nothing passed that was not acceptable to the joint leadership. He said we beat everything else. We tabled them or defeated them. But if we had not allowed that to happen and the Senators had not had a chance to have their say, we would have never ratified the treaty. I know there may be others who want to speak. But we have gone down a trail in the last several years--just a few years--that I never thought imaginable. We have 43 new Members of the Senate, 43 Members of the Senate who are in their first term, plus 1, the Senator from Indiana, who is in his first term but served before so he has a broader view of this. Those Senators have never seen this body operate properly. Most of them are on the other side. So it is not necessarily their fault that this is happening, but this is not the way the Senate earned the reputation as the unique deliberative body in the world. No one would recognize it as that today. No one would recognize it as the authentic touch of creative genius in the American system of government. My hope would be that the Democratic leader would recognize this and have a change of behavior tomorrow, or maybe later this afternoon. But if he does not, I hope the American people take this seriously and take it into account when they cast their votes in November and put six more Republicans on this side of the aisle so a Republican leader can restore this body to the luster it deserves, and the American people deserve, as the authentic touch of genius in the American political system.

Mr. ALEXANDER

Mr. ALEXANDER. Thank you, Mr. President. I congratulate the Senator from Missouri for his comments. Sometimes I think Republican Senators especially should begin and end every speech with an answer to the question, What would the Senator do if he were in charge? And the Senator from Missouri has said that very eloquently. It is not the first time what Republicans would do has been said on this floor. He mentioned that the law was passed 3\1/2\ years ago. We counted it one time. We mentioned 173 times on this floor the Republican step-by-step proposal for a different approach to health care in this country. We said: Don't expect Senator McConnell or any other Republican to come in with a 3,000-page Republican bill in a wheelbarrow. We don't believe in that. We believe in a different direction, a different approach. We don't believe we are wise enough in Washington to write 3,000 pages of rules to govern every aspect of our health care system in America that takes 18 or 19 percent of the economy. We live in the iPhone age, where we want to increase the personal freedom of Americans to live longer, better, safer, and healthier. We want people to be able to do these things for themselves. We want to increase choice, competition, and in that way lower costs. If we lower costs, then more people will be able to afford to buy health insurance. That is the real way to expand health insurance in America--make it more affordable; make it so people can afford it. So I am beginning these short remarks with a salute to the Senator from Missouri for talking about what we would do if we were in charge, and I am going to end in that way as well. For the last couple of months, we have heard countless stories from constituents who are losing the health plans they purchased on the individual market. According to America's Health Insurance Plans, there are 19 million Americans in the individual market. The Obama administration knew in 2010 that the rules it wrote for health plans would mean that 47 to 60 percent of those policies could not be legally offered under ObamaCare by 2014. Nevertheless, the President still said, ``If you like your health insurance, you can keep it.'' Now we all know that wasn't true. According to news reports collected by my staff, at least 5 million Americans, including 82,000 Tennesseans, will lose their individual plans starting January 1. That is an unwelcome Christmas present for those 82,000 Tennesseans. 16,000 Tennesseans are losing their Cover Tennessee plans; these are people who especially need help. There are also 66,000 Tennesseans who will lose their Blue Cross Blue Shield of Tennessee coverage. I heard from a woman named Emilie, who is from Middle Tennessee. She is 39 years of age and has lupus. She wrote: I cannot keep my current plan because it doesn't meet the standards of coverage. This alone is a travesty. CoverTN has been a lifeline. . . . With the discontinuation of CoverTN, I am being forced to purchase a plan through the Exchange. . . . My insurance premiums alone will increase a staggering 410 percent. My out-of-pocket expense will increase by more than $6,000 a year--that includes subsidies. Please help me understand how this is ``affordable.'' Unfortunately, Emilie is not the only one experiencing rate shock. Millions of Americans are losing their insurance plans. They are being forced to buy new plans, many of them with higher premiums, deductibles, and coinsurance. According to data from the Department of Health and Human Services, Tennesseans can expect to pay up to three times more on the exchanges being set up under ObamaCare for the health insurance they now have. In 2013, a 27-year-old man in Memphis can buy a private insurance plan for as low as $41 a month. On the exchange, the lowest State average is $119 a month--a 190-percent increase. Today, a 27-year-old woman in Nashville can buy a plan for as low as $58 a month. On the exchange, the lowest priced plan in Nashville is $114 a month--a 97-percent increase. Even with a tax subsidy, if she made $25,000 a year, the plan would be $104 a month--almost twice what she could pay today if the $58 plan was all she felt she needed. Today, women in Nashville can choose from 30 insurance plans that cost less than the administration says insurance plans on the exchange will cost, even with the new tax subsidy. In Nashville, 105 insurance plans offered today will not be available in the exchange. According to HealthPocket Inc., a consumer-oriented health research firm, the average individual deductible for a bronze plan on the federally-run exchange is $5,081 a year. That is 42 percent more than the average deductible of $3,500 for an individually purchased plan in 2013. According to Deloitte, that is 348 percent more than the $1,135 average deductible for an employer health plan in 2013. These are a lot of numbers, but Americans--millions of them--are getting familiar with these numbers because this has gone from being political to very personal. According to Avalere Health, 90 percent of bronze plans require patients to pay 40 percent of the cost of their tier 3 and 4 drugs out of their own pockets, compared with 29 percent of employer-sponsored plans that most Americans currently use. Most silver plans also require patients to pay 40 percent. For cancer patients and those with chronic illnesses, this kind of cost sharing could mean they will pay thousands of dollars out-of-pocket or go without the drugs they need to stay healthy. Americans had to wait until the exchanges opened on October 1 to find out just how much they were going to have to pay for insurance in 2014. With such dramatic hikes in premiums and out-of-pocket expenses, it is no wonder that Americans are outraged. Then, just before Thanksgiving, we learned that the Obama administration is delaying open enrollment for 2015 until after the midterm elections in November. The only American consumers this change will help are Democratic politicians who voted for ObamaCare because it would delay disclosure of some of the law's most insidious effects until after the election. Senators Barrasso, Enzi, and I introduced today the Premium Disclosure Act. We want to change the open enrollment date back to October and provide Americans notice of their premiums and cost-sharing requirements 30 days in advance so that they can plan for the future knowing their health care costs for the next year. This is a commonsense proposal that I hope my colleagues will support. As my colleague Senator Barrasso likes to say, what we know now about ObamaCare is just the tip of the iceberg. Much of the media attention has focused on the disastrous rollout of the Web site and the 19 million Americans in the individual market. But just below the tip of the iceberg are 160 million Americans--nearly 10 times more than have individual policies--who the Congressional Budget Office says get their insurance through the job, employer insurance. Think about issues such as restrictive grandfathered plan rules, limits on the number of hours employees can work and be considered part time, the mandate that employers provide government-approved insurance or pay a fine, and the millions of dollars in new taxes on health plans. All of these issues will have an impact on employer-sponsored health insurance in both the public and private sector. We are already seeing that. Employers such as Sea World, Trader Joe's, The Home Depot, and other companies have publicly said they are reducing worker hours or dropping part-time employee health benefits. The chief executive officer of Ruby Tuesday, a restaurant company, told me that the cost to implement ObamaCare would be equal to the profit his company earned all of last year. In case you think these are isolated examples, the National Association of Manufacturers says that more than three-fourths of manufacturers cited rising health care and insurance costs as the most important business challenge. The U.S. Chamber also has a membership survey saying that 74 percent of businesses are reporting that the health care law makes it harder for their firms to hire new workers. This is at a time when jobs are supposed to be the principal concern in our country. Many of these businesses self-insure, meaning they design and pay directly for the health plans they offer their employees. According to the Kaiser Family Foundation, more than 100 million Americans currently have employer-sponsored health plans that are self-insured. Self-insurance is a method of providing health insurance that has worked well since its inception in 1974. It needs to be preserved. Last month Senators Rubio, Risch, McConnell, and I introduced a bill to make sure the Obama administration doesn't change that, doesn't change the rule that allows the companies to insure themselves against a medical claim that could bankrupt them. Any effort by the Obama administration to change the rule on companies that self-insure will break the President's promise to millions of Americans. It won't matter if they like their employers' health plans; they won't be able to keep them. It is not only the private sector facing fiscal challenges because of ObamaCare. Our Nation's schools, colleges, and universities are also being hit hard. There is no shortage of examples in my State of Tennessee of local leaders dealing with the burdens of ObamaCare. The Franklin Special School District has begun limiting substitute teachers to working 4 days a week in order to avoid paying between $1 million and $4.5 million more per year in health care costs. Maury County Schools, south of Nashville, is also limiting its substitute teachers to no more than 28 hours a week for the same reason. One school board member told the local news: Students struggle enough having one substitute teacher, but then now we're going to have to possibly split the substitute time between two substitute teachers. It just makes it hard on the students to learn. Wilson County Board of Education wrote to tell me that ObamaCare's reinsurance fee will cost the district an additional $165,000 in 2014 alone. At least eight other Tennessee school districts are reportedly limiting employee work hours or entire jobs, including Clarksville, Rutherford County, Johnson City, Carter County, Washington County, Oneida Special School District, Scott County, and Stewart County. Cumberland University in Lebanon has adopted a new policy to limit adjunct faculty to no more than three courses each term, meaning they won't be able to offer a course even if they are the most qualified instructor available. The impact of ObamaCare on education is by no means limited to Tennessee. Investor's Business Daily has identified well over 100 school districts and institutions of higher education nationwide that have made cuts or limited employee work hours because of ObamaCare. That number is climbing daily, again suggesting this is only the tip of the iceberg. Remember, what we are hearing about today are individual policies. What we are going to hear about next year are employer policies being cancelled, new costs, and there are 10 times as many Americans with employer policies as individual policies. Who pays the price for this? Our children. Cash-strapped schools simply don't have the money to absorb these costs, so they are forced to make difficult choices. For these reasons--broken promises, higher costs, fewer choices-- ObamaCare was an historic mistake. It expanded a health care delivery system that already costs too much and left Americans with fewer choices. I said at the beginning of my remarks that I would like to end in the same way, and I will do that with an answer to this question: What would we do if we were in charge? What if we elected a Republican Senate and even a Republican President in 2016? We would replace ObamaCare, not by moving backward, but by moving in a different direction. Remember, ObamaCare's real problem was it expanded a delivery system that already costs too much. What we would do instead is go step by step to introduce new ways to increase choices, to have more competition and to lower costs. We would make Medicare solvent, so seniors can depend on it. We would give Governors more flexibility with Medicaid so they can create programs with lower costs. We would repeal the ObamaCare wellness regulation--the Senator from Missouri talked about that--and replace it with one that makes it easier, not harder, for employers to give employees lower health insurance costs if they live a healthy lifestyle. We would let small businesses pool their resources and offer low-cost insurance plans for their employees. The Congressional Budget Office says that Senator Enzi's bill would allow coverage for 750,000 more Americans at a lower cost if we did that. We would allow families to purchase insurance across State lines. If there is a policy regulated by Kentucky that fits my needs, and I want to buy it, why shouldn't I be able to do it if I can afford it? We will expand health savings accounts. We would incentivize the growth of private health insurance exchanges. That is beginning to develop all across our country, giving more choices to employees. We would make it easier for patients to compare prices and quality of doctors and medical services. We would incentivize States to reform junk lawsuits. Those are the steps in the right direction where we would like to go. When Irving Kristol died not long ago, James Q. Wilson wrote a tribute in The Wall Street Journal which struck me. He said when they began their association as neoconservatives--they were mostly Democrats--he said we were policy skeptics. He said that was mainly what our common view was. By that, I think he must have meant they did not believe Washington could, through a comprehensive piece of legislation, fix our whole health care system; that what Washington should do, particularly in this iPhone age, is to go step by step in a direction that gives more personal freedom to consumers, to Americans, so they can live longer, live healthier, live safer, and be happier. That is what we would like to do. That is how we would like to change ObamaCare, and we would like to have that opportunity. So unfortunately, an unwelcome Christmas present this year for 82,000 Tennesseans is that they are losing their individual policies. Even more unfortunately, an unhappy New Year is coming, in which hundreds of thousands of Tennesseans will lose their employer policies--the policies they get through their employers--because of ObamaCare. We are ready to go in a different direction and create a way for Americans to have more choices, more competition, and insurance they can purchase at a lower cost. I thank the Chair, and I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, we are watching America pass from the hands of the ``greatest generation'' to the hands of the debt-paying generation with nothing to show for it but the bill. For months Republicans have challenged President Obama to fix the Federal debt, to save entitlement programs that Americans depend upon, and to rescue young Americans from being forever known as the debt- paying generation. Earlier this year, for example, I called on the President to show the same kind of leadership that President Johnson did on civil rights, that President Nixon did on China, that President Carter did on the Panama Canal Treaty, and that President Reagan did on Social Security. Confront your own party. Say what needs to be said. Do what needs to be done. This has not happened. I appreciate very much the efforts of the Senator from Washington and Representative Ryan to try to bring certainty to the budget process. That is why I voted today to allow a vote on the House-passed budget agreement. It seems to me, at least, that a Republican Senator could allow a vote on legislation passed by the House of Representatives with the support of the House Republican leadership and two-thirds of the House Republicans, so I voted yes to allow a vote. However, I am going to vote against the Ryan-Murray budget amendment because it avoids the Federal Government's single greatest challenge; that is, reducing the growth of runaway entitlement spending. Instead, it spends savings that should be used to strengthen Medicare, to strengthen pensions, and to strengthen the air transportation system. I believe in user fees. When you build a highway, you have a gas tax to pay for the highway. You do not raise the gas tax to pay for education. You do not raise the gas tax to pay for a health program. A user fee is related to the service it provides. This budget agreement does not withstand that test. It would have been much better to pay for this budget agreement by using a small part of the almost $1 trillion in entitlement savings that Senator Corker and I have suggested in the Fiscal Sustainability Act or with meaningful entitlement savings from the President's own budget. The Fiscal Sustainability Act that Senator Corker and I have suggested would slow the growth of out-of-control mandatory spending by, among other things, recommending a more realistic Consumer Price Index. This is a Consumer Price Index that most economists have said is more realistic in its assessment of what the increase in the standard of living is. The monthly difference between the current Consumer Price Index and the more accurate Consumer Price Index is about $3 per month for the average beneficiary, which is less than the average cost of a gallon of gasoline. This modest change would help to slow the growth-- not cut but help slow the growth of mandatory entitlement spending. The purpose of that is to help make those programs solvent so beneficiaries can depend on them. The Medicare trustees have told us that Medicare will not have enough money in it in 13 years to pay all of the hospital bills. What are seniors going to think of Senators who in 2013 did not take the steps to make Medicare solvent? We could do that if we would begin to adopt some of the recommendations in the Corker-Alexander Fiscal Sustainability Act or in the President's own budget. He also recommended a smaller version of the more realistic Consumer Price Index. He recommended several hundred billion other dollars of changes in entitlement programs that Republican Senators might be able to agree with. To go back to the Consumer Price Index, according to the Congressional Budget Office, we could save $162 billion over 10 years if we adopted a more realistic Consumer Price Index for entitlement programs. That is twice as much money as we needed for the budget agreement. The rest could have been used to reduce the debt today, and the reduction would be even more in future years. As I emphasized before, the purpose of reducing the growth of entitlement spending is so the programs are solvent, so a Medicare beneficiary does not get to a point in 13 years and say: Why does Medicare not have enough money to pay for all of my hospital bill? Here is another way we could have cut wasteful spending: Eliminate the wind production tax credit. The Senator from West Virginia and I have written a letter to the Finance Committee and suggested we do that. Here we are in the budget agreement struggling to find $63 billion over the next 10 years. Where could we find $63 billion? That amount about equals what we could save if we did not extend the wind production tax credit each year for the next 10 years. So any way you slice it, we could either have taken some of the President's suggested savings in entitlement spending, some of Senator Corker's and my suggested savings, we could have taken half of the savings from the more realistic Consumer Price Index, paid for the budget agreement that way, and then I could have voted for it because we would have moved money from the out-of-control side of the budget to relieve the sequester, and we would have done what we should have done. What I have to ask with all respect is, Where was the President in all of this? I mean, if Lyndon Johnson can pass a civil rights bill and Richard Nixon can go to China, if Jimmy Carter can pass the Panama Canal Treaty and Ronald Reagan can work with Tip O'Neill on Social Security, why can't President Obama get involved with his own budget recommendations and help us begin to deal with entitlement spending, which everybody knows is the single biggest problem we have facing our country? Washington could learn a lot about debt and taxes from Tennessee. Tennessee's tax burden ranks third lowest of any State, it has the lowest per capita debt, and it balances its budget every year. All that did not happen by accident. I was Governor when we needed three big road programs. Instead of borrowing the money, we paid for it as we went. We used user fees, the gasoline tax, but we applied that to the roads. Guess where we are today? We have one of the best four-lane highway systems in America and zero road debt. While other States have billions of dollars of road debt, we have zero. So all of our gas tax money goes to keeping one of the best four-lane highway systems in the country. Those policies have paid off. According to the Department of Labor, Tennessee is the fourth best State in the country in net new jobs. Getting debt under control is the foremost problem we have facing our country. If we do not do that, the people who depend upon Medicare and other important programs will be not able to depend on them to pay their hospital bills. Runaway spending is going to leave our young Americans forever known as the debt-paying generation. We are watching America pass from the hands of the ``greatest generation'' to the debt-paying generation with nothing to show for it but the bill. I yield the floor.

Mr. ALEXANDER. Mr. President, I thank the Senator from Vermont for engaging in this dialogue and appreciate the Senator from Washington clarifying that it is the intent of the budget measure for the Department of Education to continue to use not-for-profit servicers for the Federal loan program and that these entities should be permitted to compete for additional loan volume in the future.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I intend to speak for more than 10 minutes when I get the floor.

Mr. ALEXANDER. Madam President, I ask unanimous consent that I be allowed to speak for as much time as I may require after Senator Reid does what he wants to do on the floor tonight, which would not interfere with the Senator from New Hampshire going ahead at this time.

Mr. ALEXANDER. I thank the Chair.

Mr. ALEXANDER

Mr. ALEXANDER. Reserving my right, and I will make my remarks on this matter after the majority leader has completed his business today, I would note that on the last day we were here, November 21, there were only 16 nominations on the Executive Calendar that had been there more than 3 weeks, only 8 more than 9 weeks, and the Republicans were ready to confirm more than 40 who had been there only a few weeks. The Democratic majority changed the rules of the Senate in a way that creates a Senate without rules. Until I understand better how a Senator is supposed to operate in a Senate without rules, I object.

Mr. ALEXANDER. Reserving my right to object, again I will make my comments after the majority leader has completed his business, but all Senate Republicans wanted with the DC Circuit judges was to do what Democratic Senators insisted on doing in 2006, transferring judges from a court where they are not needed to courts where they are needed. I object.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I wonder if I might ask the majority leader a question.

Mr. ALEXANDER. If I may ask it through the Chair, as I understand it, there are a total of 13 district judges on the calendar, and the majority leader is the only one in the Chamber who has the right to bring a judge from the calendar to the floor. If I heard him correctly, he filed cloture on four district judges. The way I understand the Senate procedure is that means we have an intervening day tomorrow and we can start voting on Wednesday. Because we changed the rules at the majority leader's request to make it easier to confirm district judges, there is only, in effect, 1 hour of debate on each district judge, 2 hours equally divided. Then, if Democrats decide they don't want to use their hour, we could use our hour if we wanted to--and that there never has been in the history of the Senate a district judge denied his or her seat by a filibuster, not President Obama, not anyone else. If that is the case, why doesn't the majority leader bring up all the district judges? Let's bring up all 14 of them, bring them to the floor, have 1 hour of debate on each one? Why don't we do that?

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I appreciate the courtesy of the majority leader in allowing me to ask him a question. I have more to say about this whole subject. But let me go back to my point. There are 13 district judges on the calendar. On November 21, when we last met, there were 13 district judges. There is only one person in this Chamber who can bring a judge from the calendar to the floor for confirmation. That is the majority leader. Why did he not bring them all up? Why didn't he move them? Because under our rules all he has to do is make a motion that so-and-so district judge be confirmed. If he files cloture, we have to wait 1 day, and then we have 2 hours of debate. Never in the history of the country, according to the Congressional Research Service, has a district judge been denied his or her seat because of a failed cloture vote, because of a filibuster. I know this from personal experience because a judge named McConnell from Rhode Island was nominated by President Obama at the recommendation of the Rhode Island Senators, and there were a number on this side who said we should filibuster the judge. I thought not. I argued to all of the Republicans that we never had done that in history and we ought not to do it, we ought not to start it. So what has happened? I believe, with all due respect, the majority leader is manufacturing a crisis. There is no crisis with those 13 district judges. He is the one who could bring them up. He could have done it on Thursday, November 21st, the day he changed the rules. Friday would be the intervening day. The maximum amount of debate the Democrats could require on each judge would be 1 hour, if they yield back their hour. So in 13 hours, before midnight tonight, they could all be district judges. They were sitting on the calendar waiting for the majority leader to move. The same is true with the sub-Cabinet members. But let's just stay with the district judges for a minute. I know I am right about this because I have sat down with the Senate historian. I sat down with the Congressional Research Service. I said, has there ever been a President's nominee for a Federal district judge who has not been confirmed because of a failed cloture vote? The answer is zero--not for President Obama, not for President Bush, not for President Clinton, not for any President. Because Senator Reid, the distinguished majority leader, believed that the district judges were moving too slowly through the Senate, we changed the rules this past year. We said that with district judges, once there is a cloture vote--and remember, no judge has ever been denied his seat because of a cloture vote. Once there is a cloture vote, there can only be 2 hours of debate, one for the minority and one for the majority. So this is a manufactured crisis. That is what was done in order to do what the Democratic majority did on November 21, which is the most stunning development in the history of the Senate in terms of a rules change, and I intend to talk about that tonight. I want to go through some very specific facts--not speeches, not something made up, but facts. I am glad that the majority leader moved four district judges but every one of the other nine might ask, Mr. Majority Leader, why did you not move my name? Why are you leaving me out? Because you could move it on Monday, wait a day, and on Wednesday you could confirm every single one of the judges there? The reason was because the majority leader wanted to make it look like there was a problem here so he could do as Senator Levin said we did on November 21--in effect create a Senate without rules--over the objection of 48 Senators the Democratic majority established a precedent that the Senate can change the rules any time it wants to for any reason it wants to. So I want to speak a little bit tonight about how I and other Senators are expected to serve in a Senate with no rules. Yesterday was a pretty exciting day in the National Football League. There were a lot of close games. The Ravens and the Vikings scored 5 touchdowns in 2 minutes and 1 second. In Pittsburgh, Miami was ahead when the Steelers Anthony Brown raced into the end zone after a series of lateral passes. It was one of those things where it is the last play of the game and they start playing, passing to each other. It rarely works. Every now and then it does, and it appeared to in this case because Brown was the last one with the ball. He got into the end zone before time expired, but the officials ruled he had stepped out of bounds before scoring. What if Pittsburgh had said yesterday: Wait a minute, we are the home team. We will change the rules and say if you go step out of bounds only once as you are running toward the end zone with lateral passes on the last play of the game then you score, so Pittsburgh wins the game? Or what if they had said: We are the home team. We will just add 5 minutes and see if we can win the game in that 5 minutes? They would have been happy in Pittsburgh yesterday but maybe not for long. But what happens when Miami becomes the home team and Pittsburgh goes to Miami to play and Miami changes the rules in the middle of the game so Miami can win? What would happen to the game of professional football if the home team could change the rules in the middle of the game to get the result it wanted? The National Football League knows. They spend a lot of time on rules. They know if there is no integrity for the rules there is no integrity for the game, and pretty soon the fans do not watch the game because the game has no integrity. That is why the NFL goes to such great lengths about its rules. There are officials all over the field. They are standing, you know, right in the middle of the play. There is an instant review of every call they make. When they make a call they huddle to see if they interpreted the rule right. If a coach doesn't like it, he has an opportunity to challenge the ruling. There is someone up in a box who looks at that and reviews it. Today, Monday morning in New York, in the National Football League office, senior retired officials get together and they review every single call and every single no-call that was made yesterday in every league game. They grade every single official based on those calls, and rarely does anyone get 100 percent. The NFL is in a constant review of the rules because if there is no integrity to the rules, they know there is no integrity to the game, and there will be no fans. I say this because on Thursday, the last day we were here, November 21, before Senators went home for Thanksgiving, the Democratic majority destroyed the rules of the Senate. With all of the Republican Members opposed and 3 Democratic Members opposed, the Senate voted 52 to 48 to invoke the so-called nuclear option, allowing a majority of Senators present and voting--so not necessarily 51--to approve Presidential nominees except for Supreme Court Justices. For those positions they eliminated the filibuster, which required 60 votes to proceed to an up or down majority vote. That is what Senator Reid went through a few minutes ago. He was saying that we will move for cloture, we will have an intervening day, and then we will have a cloture vote. Before Thursday, before November 21, that took 60 votes. Although, as I said, in the case of Federal district judges it had never been used to deny a seat. But now it only takes a majority of those present and voting. This was the most dangerous restructuring of Senate rules since Thomas Jefferson wrote the rules because it creates a perpetual opportunity for what Alexis de Tocqueville called, when he traveled our country in the 1830s, one of the greatest threats to our democracy, and that is the tyranny of the majority. This stunning rules change by the Senate majority can best be described as ObamaCare 2. One of the things that Americans really didn't like about the new health care law, ObamaCare, was that it was passed in the dead of night by a purely partisan vote during a snowstorm. It showed that those who had the votes could do whatever they wanted no matter what the minority thought, and we can see the results: millions of Americans having their policies canceled. Next year, tens of millions will--those who get their insurance through employers. This is another example of that kind of power play. This time the goal was to help the administration and the Democratic majority advance its radical agenda, unchecked through the courts and the executive agencies. As the Senator from Michigan, Senator Levin said--quoting a former Republican Senator, Senator Vandenberg--Senator Levin is a Democrat-- said on that Thursday, ``If a majority of the Senate can change its rules at any time, there are no rules.'' ``If a majority of the Senate can change its rules at any time, there are no rules.'' Similar to the Pittsburgh game, if the home team can change its rules at any time there are no rules to the game. Every child knows that there have to be rules to the game. So I have this question: How am I and how are other Senators supposed to serve in a Senate with no rules? How is this different from what could have happened in Pittsburgh if they changed the rules in the middle of the game? Or if the Red Sox, finding themselves behind in the ninth inning, added a few innings just to make sure they beat the Cardinals in the World Series. In the Senate, future majorities could do whatever they want, end the filibuster for legislation, removing any obstacle to the tyranny of the majority. Just as if there were no integrity of the rules of football and there would be no integrity of the game and there would be no fans, if there were no integrity to the rules of the Senate, there is no integrity for the Senate and no respect for this part of our system of government. I think I was not overstating it when I said this is the most dangerous change to the rules since Thomas Jefferson wrote them. When he did write the rules, he had this to say about why we have rules. His words are in the Senate rules book that every single one of us has and hopefully have read at least the beginning parts of. This is worth reading. It is entitled ``The Importance of Adhering to Rules.'' Remember the argument here is not about the filibuster, it is about how the rules were changed. The Importance of Adhering to Rules. I am going to read a little bit of this. According to Thomas Jefferson, when he wrote the Senate rules: Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, ``it was a maxim he had often heard, when he was a young man, from old and experienced members, that nothing tended to throw power more into the hand of administration and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding: that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority; and that they were in many instances a shelter, and a protection to the minority, against the attempts of power. This is Thomas Jefferson writing about the importance of rules when he wrote the Senate rules. Continuing: So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. I would think a majority that claims to protect the rights of minorities would be interested in these words of Jefferson and especially in the following words: And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency and regularity be preserved in a dignified public body. That was Thomas Jefferson on the importance of Senate rules when he wrote them at the beginning of our country. The majority has set a precedent that destroys those rules--that destroys the integrity of the rules because a Senate in which a majority can change the rules at any time for any reason is a Senate with no rules. That is why it is not too much to say that the Democratic majority has created a perpetual opportunity for the tyranny of the majority. The majority can do anything it wants any time it wants. In this case, what it wanted to do was stack the Federal court that hears most of the challenges to its radical regulatory agenda with judges who believe in that agenda. Who knows what the next power play will be. First it was ObamaCare, then ObamaCare 2, the change of the rules. What we do know is that this majority has set an unprecedented precedent. They have set the precedent to do whatever they want to do anytime they want to do it. They have created a Senate without rules. Now let's talk a little bit about what the justification might be for such a stunning action because there are so many words thrown around that don't represent facts at all that--somehow--I wonder about this. For example, the Democrats complain that their radical action was warranted because the Senate is broken. I agree with that. I will explain in a few moments why I think so. Their reason is that President Obama's appointees have been unfairly denied seats by failed cloture votes or filibusters. The charge was--and you heard the majority leader a few minutes ago--things have gotten so bad that this Republican majority has treated President Obama unfairly by denying his nominees their seats by failed cloture votes or filibusters. The Democrats have gotten themselves in a room and convinced each other that this is true, but it is flat out not true. According to the Congressional Research Service--and I have researched this for several months and asked them this question: Has there ever been any Supreme Court nominee, by any President, who has been denied his or her seat by a filibuster? The answer is no. It is zero. Now, there is one possible exception. Abe Fortas was nominated by President Lyndon Johnson as Chief Justice. The nomination was in trouble on both sides of the aisle, and to help his friend Abe Fortas save face, President Johnson engineered a cloture vote in 1968. I think the vote was 45 to 43. They called that a win to help ``Abe save face.'' But certainly President Obama's nominees have not been denied their seats by a failed cloture vote, and neither have any other Presidents. Have there ever been any Cabinet members of President Obama or any other President who have been denied their seats by a failed cloture vote or by a filibuster? According to the Congressional Research Service, the answer is no. The number is zero. There have been no Cabinet members who have been denied their seats in the Obama administration by a failed cloture vote. Have there ever been any Federal district judges denied their seats by a failed cloture vote for President Obama or any other President? The answer is zero. Except for perhaps Fortas, there has never been a Supreme Court Justice, Cabinet member, or Federal district judge nomination in the history of President Obama--and never in the history of this country has a President's nomination been denied by a filibuster. Interesting. Then why did we go to this stunning radical move on November 21? Well, maybe it was because of sub-Cabinet members. How many of those have been denied their seats by a filibuster, according to the Congressional Research Service? Two of President Obama's, three of President George W. Bush's, and two of President Clinton's. That is a total of seven in the history of the Senate when a filibuster has said to a sub-Cabinet member that we are going to deny them their seat because of a filibuster or a failed cloture vote. So President Obama has been treated about exactly the same as his last two predecessors. In all of those I just mentioned, among Cabinet members, district judges, Supreme Court Justices, and sub-Cabinet members, we only found two Obama nominees who have been denied their seats by a failed cloture vote. Now, that is a fact. That is not a piece of Republican propaganda. That comes from the Congressional Research Service. Why is there a fuss about this? Well, maybe it is because of the Federal circuit judges. Well, let's talk about that. As for appeals court judges, Republican filibusters have blocked five. Why did that happen? That happened as a result of what happened in 2003, the year I came to the Senate. Then, Democrats got together and said: We think President Bush's nominees are too conservative, so for the first time in the history of the Senate we are going to block 10 of President Bush's nominees basically because they are too conservative. I knew some of those judges. I used to clerk on the Fifth Circuit Court of Appeals for Judge John Minor Wisdom. I knew the respect he had for Judge Pryor. I knew Mr. Pickering, who had really been a pioneer for civil rights in the State of Mississippi in the 1960s and 1970s when it was hard to do that. The truth is that the majority of Democrats said: We are going to block 10 of the Bush judges. It has never been done before, but we are going to do it with a cloture vote. Well, as you can guess, everyone on the Republican side--and the majority then--got very excited. The majority leader, Senator Frist, said: We are going to change the rules and do something that Senator Lott--a majority leader at one time--said was the nuclear option. There was great consternation. In 2006 Senator Reid said--and he recounts this very well in his book--``to do so would be the end of the Senate.'' I made two speeches. I suggested that, well, this is a terrible thing to do. A President ought to have an up-or-down vote on his circuit judges. So why don't we see if we can't get a few Republicans and a few Democrats and just take it out of the hands of the leaders and agree we will only use the filibuster on circuit judges in extraordinary circumstances, which was the result. I said at the time that I would never vote for a filibuster on a circuit judge. I adjusted my view to be the same as the Senate precedent that came out of the Gang of 14. Of the 10 Bush judges, 5 were not confirmed and 5 were confirmed. In 2003 the Democratic Senators for the first time in history refused to confirm five Presidential nominees for the Federal court of appeals by a cloture vote--by a filibuster--and the expected happened. Over time, the Republicans now have blocked five nominations. So Republicans and Democrats are even. When you start something, things have a way of coming back around. What the Democrats said was fair to do in 2003 and 2004 the Republicans now say is fair to do. If the Democrats think the Republican nominees are too conservative, they will block five of them. If we think President Obama's nominees are too liberal, then we will block five of them. We put in the trash heap the tradition that we will never use the filibuster on Federal courts of appeals judges. The majority leader and others have said: Well, that is not the only problem. The problem is that President Obama has had to wait too long to get his judges confirmed. Again, that is not true either. This is another case where the Democrats apparently have gotten themselves in a room and convinced themselves that something that isn't true is true. According to the Congressional Research Service, President Obama's second-term Cabinet nominees have been confirmed at about the same pace as President Bush's Cabinet nominees and President Clinton's Cabinet nominees. The other day I heard the majority leader use the example of the distinguished Secretary of Defense and a former Member of this body, Senator Hagel, as an example of delay. Well, let me comment on that, if I may. Senator Hagel's nomination was reported to the Senate floor. The day after it was reported by the Armed Services Committee, the majority leader filed cloture and called that a filibuster. Now, many Republican Senators--I watched the Senator from Arizona and the Senator from South Carolina and others say on the floor to the majority leader: That is premature. You are cutting off debate before we have had a chance to consider the Secretary of Defense of this country. If you will allow us more time--at that time we were going into the Presidents Day recess for a week--we will cut off debate the day we come back and then we will have an up-or-down vote. But, no, the majority leader and the White House said: Ram it through. They insisted on a vote, the vote was turned down, and he called that a filibuster. I call it cutting off debate--cutting off debate prematurely. Why in the world wouldn't you allow a Secretary of Defense to be on the floor for more than 1 day before you cut off the debate prematurely and call it a filibuster? The majority leader said: Well, we could be attacked. I think he must have forgotten we had a perfectly adequate Secretary of Defense in place--Leon Panetta--until the next one was confirmed, and he was going to be confirmed because the majority had the majority of votes to do that and a Cabinet member has never been denied his or her seat because of a cloture vote. I want to keep coming back to that. A Cabinet member has never been denied confirmation because of a failed cloture vote. A Cabinet member will be confirmed after a while--after you have questions. But in that case, they filed cloture after 1 day. Now, in my case, 20 years ago when President Bush nominated me as the Education Secretary, there was a Democratic Senate. I was announced in December, nominated in January, and it was March before some of the Democratic Senators saw fit to give me a vote, and I was confirmed by unanimous consent. During that time I tried to get ready for our education program. It gave me some time to work. When President Reagan nominated Ed Meese to be the Attorney General, it took a year before the Senate confirmed Ed Meese, but he was confirmed. There have been some Cabinet members who have withdrawn their names because they have become embarrassed or for some other reason. If the question is whether a failed cloture vote has ever been used to deny a Cabinet member his or her seat, the answer is no. In the case of Secretary Hagel, I would think 1 day is not quite long enough to file a motion to cut off debate and claim it is a filibuster. What about judges? Has the Senate been slow on judges? This year the Senate has confirmed 36 of the President's second-term nominees to circuit and district courts compared with 14 for President Bush as of November 21st in his second term in 2005. These things are never exact because there are vacancies for a variety of reasons. That is a pretty big difference. It is very hard to argue that it is unfair. But the majority leader did argue successfully that the minority was holding up district judges in order to negotiate for other points. He did that the second time a bipartisan group of us sat down to talk about how to change the Senate rules so we could move along better. So what the Senate agreed to do earlier this year was to change the rules to make it easier to confirm district judges. Here is the procedure: Remember, first they have to be on the calendar. How do they get on the calendar? A committee majority puts them on the calendar. What party has the majority in the Judiciary Committee? The Judiciary Committee majority is Democratic. That puts them on the calendar. So Democrats put them on the calendar. Only the majority leader can take them off the calendar, and when he does that, he has no motion to proceed; he just takes them right off just like he did tonight. If he wants to, he can just bring them up and ask unanimous consent that they be approved, which they often are. I am told by the Republican leader's office that when the majority leader rammed the rules change through on November 21, there were about 40 or so noncontroversial--so-called--nominees who were about to be confirmed, including many district judges. But tonight the majority leader has selected 4 of the 13 district judges who are on the calendar and made a big show out of the fact that we are going to take an intervening day tomorrow and then we are going to vote on them, I guess, beginning on Wednesday. Under the rules change he asked for, the debate on each one of those can only be 2 hours, and it is divided evenly, which means the Democrats have an hour and the Republicans have an hour. If the Democrats want to speed things up, they can give their hour back. On a noncontroversial judge, Republicans normally wouldn't say anything, except a word or two of praise. But let's say the Republicans are upset by the rules changes and we are going to say we will take that whole hour. The Democrats could say 2 or 3 minutes of praise for the district judge and we could confirm those four in 4 hours. That is half a day's work. The question I asked the majority leader was, What about the other nine? What about the other nine district judges who are sitting on this calendar, put there by the Democratic majority of the Judiciary Committee, and only one person in the Senate can bring them up for a vote, and he didn't bring them up. Why doesn't he bring them up? He could bring them up today. Tomorrow would be the intervening day and we could vote on Wednesday and vote on them all. He could have brought every single district judge up Thursday before recess, when he turned the Senate into a place that has no rules; Friday would have been the intervening day, and we could have been voting all day today, and by the time we went home for supper, every district judge would be confirmed because of the earlier rules change that limited post-cloture debate on district judges to 2 hours. The only reason I can see to go through all of this is to manufacture a crisis to make the American people think that somehow the minority is abusing its privileges. I read the Executive Calendar on November 21 very carefully. Remember, this is the document that is on every Senator's desk. A nominee has to be on here in order to be confirmed. If a person is an executive nominee, the only person who can bring it up is the majority leader. It is the same with legislation. So legislative matters require a motion of consent. There were only 16 on the calendar who had been there 3 weeks and only 8 more who had been there more than 9 weeks, and 2 of the 8 were being held up by Democratic Senators. That is hardly a crisis. Finally, let me address the claim the majority leader didn't take seriously; that is, Republicans have unfairly blocked the President from filling vacancies on the U.S. Court of Appeals for the DC Circuit. Remember, I pointed out the Democrats started this by saying that if President Bush nominates judges that are too conservative, we will block them, so the Republicans now have blocked an equal number of President Obama's judges. But that is not the primary reason for blocking them. The primary reason is stated in a letter written on July 27, 2006, to the chairman of the Judiciary Committee, a Republican, Senator Specter, from all of the Democratic members of the Judiciary Committee. President Bush had nominated someone for this same court, the District of Columbia Federal Circuit Court, and this is what the Democratic Senators said in 2006: We believe that Mr. Keisler should under no circumstances be considered--much less confirmed--by this Committee before we first address the very need for that judgeship, receive and review necessary information about the nominee, and deal with the genuine judicial emergencies identified by the Judicial Conference. In other words, what the Democrats were saying--and it included a number of the most distinguished Members of this body--the chairman Senator Leahy, Senator Schumer, Senator Feingold, Senator Feinstein, Senator Kohl, Senator Kennedy, Senator Durbin, Senator Biden--they were saying that this court, the DC court, is an important court, but it doesn't need any more judges. Before we add any more judges to a court that is underworked, we ought to consider transferring those judgeships to courts that are overworked. That argument had been made since at least 2001 by Senator Grassley from Iowa, and finally, with some bipartisan cooperation in 2007, he achieved some success. With President Bush's agreement, the Republican President, he agreed with the Democratic Senators that the DC Circuit should under no circumstances--those are their words in their letter-- have more judges. They reduced by one the number of judges, and they transferred a judge to the Ninth Circuit, which was overworked. So what Republicans have said about the three judges whom the President has nominated to the DC Circuit is, before we consider any of them, consider Senator Grassley's bill. Do in 2013 what you said we should do in 2006 and 2007 and which we did in a bipartisan way. So how can this be dismissed when Republicans are asking to do in 2013 exactly what the Democrats successfully insisted on in 2006, which is to transfer judges from the courts where they are not needed to the courts where they are needed. In fact, the DC Circuit has a lower caseload by comparison today than it did in 2007 when, by a bipartisan agreement, it was considered underworked. The Democrats didn't think it was unfair then to insist that we not appoint more judges to a court that was underworked. It must be they are trying to manufacture a crisis now. So if there is no good reason to change the rules in such a dramatic way as the majority did on November 21, why would the majority leader insist on cramming through in a power play a rules change that in 2006 he said would be the end of the Senate? Because the vote was not about the filibuster. All of that is pretext. The vote was about allowing the majority to do whatever it wants to do any time it wants to do it. One of the things the American people detest about ObamaCare, as I said earlier, is that it was crammed through in the middle of the night in a partisan power play and we can see the results. Unlike the civil rights bill which had broad bipartisan support--I can remember Senator Dirksen and President Johnson working together on it when it required 67 votes in the Senate, and because it achieved that consensus, Senator Russell, the great opponent of the bill, went home to Georgia and said: It is the law of the land and we should now support it. When we cram a big social change--or any big change--through the Congress, we are going to get the kind of result we get with ObamaCare today: millions of people losing their policies, tens of millions will next year, great concern, Web site not working. That is what we get when we cram things through in a partisan way, and the Democrats have done it again. So if the filibuster was not the problem, then why is the Senate not functioning better? Why are we so low in public opinion polls? Frankly, it is because of the Senate leadership. I have had the privilege over the years of watching the Senate. I came here for the first time in 1967 as an aide to Senator Howard Baker, the future majority leader of the Senate. I watched Senator Mansfield and Senator Dirksen. I watched Senator Byrd and Senator Baker. I watched Senator Daschle, Senator Lott, Senator Frist. I wasn't in the Senate all of that time--I have only been here since 2003--but I have seen it over that time up close. All of them could operate this body very well under the rules we had until Thursday of 2 weeks ago, until November 21. I was at the Rules Committee meeting when Senator Byrd, former majority leader and acknowledged as the great historian of the Senate, came. He could barely speak, but he had one last message for the Senate and it was: Don't change the filibuster. He called it the necessary fence against the excesses of the executive and the popular will. That was what Senator Byrd said. He also said that under the rules we had until November 21, a majority leader could operate the Senate if he wanted to. The current majority leader seems to be unable to do that, and we saw an example of it here tonight. He brings up 4 district judges, while there are 13 on the calendar. He could have brought them up on November 21 and we could have been voting on all of them today. He could bring them all up today and we could vote on all of them Wednesday, but he is parceling them out as if there were a crisis somewhere. Why is he doing that? I don't see why he is doing that. It is not the way to make the Senate function. It is not what Senator Byrd would do. It is not what Senator Baker would do. I saw them come in and open the Senate to amendments, put a bill on the floor, ask for amendments. Here came 300 amendments. Ask for unanimous consent to cut off amendments. They got unanimous consent because nobody could think of any other amendments, and then Senator Byrd would say--and Senator Baker did as well--all right, let's start voting, and vote, vote, vote, vote. Then we could get to about Wednesday or Thursday and Senators would think, well, maybe my amendment is not so important, and by Friday, when it was clear the majority leader was going to finish the bill that week, they would drop the amendments, and we got it done. So the Senate wasn't a perfect place--things were still bumpy. There was Senator Metzenbaum sitting in the front row objecting. There was Senator Williams before him, Senator Allen before him, exercising their rights, but the majority leaders were able to work with that. The Senate worked on Mondays and Fridays, it worked at night, and the threat of that usually caused people who were trying to not show a proper amount of restraint and use of their privileges to back down. Instead, what the current majority leader does--and we heard him tonight--is complain about obstructionism when there isn't any, certainly not on nominations. I am not going to say Senators on both sides of the aisle haven't abused their privileges and slowed down the Senate. But he complains about obstructionism when, in fact, he has become the obstructionist in chief by making it more difficult for those of us who are elected from our States to represent the people who have a right to be heard. Seventy-seven times this majority leader has cut off amendments in a body whose whole purpose is to amend, debate, and vote. I call it a gag rule, with the majority cutting off the right of American voices to be heard on the Senate floor. There have been 114 times when he has filed a motion to cut off debate on the same day he has introduced a bill, and he calls that a filibuster. I call it a gag rule. He has bypassed Senate committees in an unprecedented way: 76 times in the last 7 years. He set himself up as the king of the Senate: May I offer an amendment on Iran, a Senator might ask. No. May I offer an amendment on Egypt? No. How about an amendment on ObamaCare? No. What about a bill on the National Labor Relations Board? No. Can we work on appropriations bills? No. Only one person is deciding what happens here when, in fact, the history of the Senate has been a place of virtually unlimited debate on virtually any amendment. That has been the history of the Senate. It is different than the House of Representatives. It has been different than any other body in the world. It operates by unanimous consent, and it requires restraint which hasn't always been exercised, but majority leaders who have been effective have found their way to deal with that. I have spent the last 3 years doing my best to help make this place function. I cannot say where this rules change on November 21 will lead, but it is heading in a dangerous direction--a direction that is dangerous for the Senate and dangerous for our country. This is a country that prizes the rule of law. Other countries around the world that do not have it wish they did, they wish they had a country with the rule of law. So in a country that prizes the rule of law, we now have a Senate without any rules because the Senate majority has decided, for the first time, that a majority can change the rules at any time, for any reason it wants, which makes this a body without rules. In a country that yearns for solutions on Iran, on health care, on our debt crisis, we have a king of the Senate saying: No amendments, no debate. I will make all the decisions. I know of only one cure for this dangerous trend, and that is one word, an election--the election of six new Republican Senators so power plays such as ObamaCare and the November 21 rules change will be ended and the Senate will again be alive with bills, amendments, and debates, reflecting the will of the American people on the important issues of our time. I ask unanimous consent to have printed in the Record the letter from the year 2006 from the Democratic Senators on the Judiciary Committee saying there should be no new judges added to the DC Court of Appeals because it is underworked.

Mr. ALEXANDER. I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I thank the Senator from Alabama for his thoughtfulness and leadership. As Senator Byrd used to say: The purpose of the Senate is to have a place where there can be an opportunity for unlimited discussion, unlimited debates and unlimited amendments. That is why we are here. Senator Byrd used to say so eloquently that the Senate was a unique body because it provided the necessary fence against the abuses of the executive. That is what Senator Byrd said in his last speech to the Senate when he spoke before the rules committee. He said the Senate is the necessary fence against abuses of the executive--remembering how this country was founded in opposition to the king and the popular excesses. That was what the Senate was supposed to be. I am afraid that ended today. This action by the Democratic majority is the most important and most dangerous restructuring of the rules of the Senate since Thomas Jefferson wrote the rules at the founding of our country. It creates the perpetual opportunity--as Alexis de Tocqueville described--that is most dangerous for our country. He said that when he came to our country to visit in the 1830s. The young Frenchman said: I see two great dangers for this new American democracy. One was Russia and the other was the tyranny of the majority. The action that was taken today creates a perpetual opportunity for the tyranny of the majority because it permits a majority in this body to do whatever it wants to do anytime it wants to do it. This should be called ObamaCare 2 because it is another example of the use of raw partisan political power for the majority to do whatever it wants to do any time it wants to do it. In this case what it wants to do is implement the President's radical regulatory agenda through the District of Columbia court. That's what this is. It is not about an abuse of the filibuster. There is a big football weekend coming up in Tennessee. Vanderbilt University plays the University of Tennessee in Knoxville. Let's imagine this: The Vanderbilt-Tennessee game, which is being played in Knoxville, home of the University of Tennessee, and Vanderbilt gets on the 1-yard line. The University of Tennessee says: Well, we are the home team, so we will just add 20 yards to the field or whatever it takes for us to win the game. Or the Boston Red Sox are playing at home. Let's say they are behind the Cardinals this year. They get to the ninth inning and they are behind and they say: Well, it is our home field. We will just add a few innings or whatever it takes so we can win the game. That is what the Democratic majority did today. They say: The rules don't allow us to do what we want to do, so we will just change the rules to do whatever it takes to get the result we want. That is what they did with ObamaCare. We remember that. I was standing right here at the desk. It was snowing. It was the middle of the winter. Senators were coming in, in the middle of the night, and what happened? Among the things the American people like the least about ObamaCare is that it was crammed down the throat of the American people by the raw exercise of partisan political power with not one single Republican vote. That is not the way the civil rights bill was passed. That is not the way Social Security and other great bills were passed. They were passed by a bipartisan majority so we could gain the support of the American people. Our Democratic majority must have liked that ObamaCare night. The American people aren't liking it so much because apparently nobody read the bill very closely. There are millions of Americans who have had their policies canceled. There are going to be millions more when employers start looking at the cost of ObamaCare. This is ObamaCare 2; I say to my colleagues. This is another exercise of raw partisan political power for the Democratic majority to get the result it wants. There is only one cure for it, and that is an election. An election is coming up in about a year. The American people can speak. In the meantime, this has been the most dangerous, most important restructuring of the Senate since Thomas Jefferson wrote the rules. It is, according to the Senator from Nevada, who is the majority leader--it is, according to his book in 2008, the end of the Senate. That is what he said this would be, and now he has done it. He has written the end of the Senate by his actions today. The Senator from Michigan, Mr. Levin, said to all of us when we were discussing this earlier this year--he reminded us of the great Senator from Michigan, Arthur Vandenberg, who was the author of the idea of a bipartisan foreign policy. Senator Vandenberg said shortly after World War II that a U.S. Senate in which a majority can change the rules anytime the majority wants is a U.S. Senate without any rules. Let me say that again. A U.S. Senate in which the majority can change the rules anytime the majority wants is a U.S. Senate without any rules. So this is not about the filibuster. This is another raw partisan political power grab so the Democratic majority can do whatever it wants to do whenever it wants to do it. It is ObamaCare II, and the American people will see it that way when they can take time away from the Web sites trying to fill out their new insurance policies to be able to pay enough attention to it. What is the excuse for this extraordinarily disturbing action today? They are the flimsiest of excuses, and I will take a few minutes to outline what those are. The first allegation is that the Republican minority was using the filibuster to keep President Obama's appointees from gaining their seats. Well, let's look at the history from the Congressional Research Service. How many Supreme Court nominees have ever not been seated because of a failed cloture vote? That is a filibuster. The answer is zero in the history of the Senate--not just President Obama but the history of the Senate. Someone might point to the Abe Fortas case when President Johnson--I guess it was in the late 1960s--engineered a 45- to-43 cloture vote so, in Johnson's words, Abe Fortas could hold his head up, but, in fact, the filibuster has never been used to deny a Supreme Court Justice his or her seat. How many Cabinet Members of President Obama have been denied their seat by a filibuster? Zero. This is the Congressional Research Service. The majority leader said: Well, what about Secretary Hagel, the distinguished Defense Secretary? He had to wait 34 days to be confirmed. Why shouldn't he wait 34 days to be confirmed? He was confirmed shortly after his name was reported. We had a perfectly adequate Secretary of Defense sitting in the office at the time-- Secretary Panetta. I remember the Senator from Nevada standing over there and asking: What if we are attacked and Secretary Hagel is not there? Well, Secretary Panetta was there. The number is zero.

Mr. ALEXANDER. Of course.

Mr. ALEXANDER. Certainly. And if the Senator from Oklahoma needs to speak now, I will be glad to yield.

Mr. ALEXANDER. Madam President, my point is that the charge is that Republicans had been denying President Obama his nominations by filibuster. Not on the Supreme Court, not to his Cabinet, and no district judges, I say to my colleagues. How many in the history of the country have ever been denied their seats by a failed cloture vote, including President Obama? The answer is zero. That is very interesting. So what is the reason for this? Well, let's go on. Maybe it was some other nomination that caused such a problem that would justify this dangerous restructuring of the Senate rules. Let's go to the sub-Cabinet category. These are all the executive appointments below the Cabinet level. How many of those have been denied? Under President Clinton, the Senate rejected two nominees of his by a cloture vote. Under George W. Bush, it was three. Under President Obama, it has been two. So in the history of the Senate, the cloture vote has been used to deny seven Presidential nominees their seat, including two for President Obama. Let's go to the one area where there has been a little bit more; that is, the circuit judges. Remember, on the Supreme Court, never; district judges, never; Cabinet member, never; but circuit judges, yes. There have been 10 instances where Presidential nominees for the Federal circuit courts of appeals have been denied their seats because of a failed cloture vote--that is a filibuster--five Democrats, five Republicans. How did this happen? If in all of these other areas it never happens, why did it happen here? Because, as the Republican leader explained this morning, Democrats got together in 2003--the year I came to the Senate--and said, for the first time in the history of the U.S. Senate, we are going to use the filibuster to deny President George W. Bush 10 nominations to the circuit court because they are too conservative, not because they are not qualified. One was Miguel Estrada, one of the most highly qualified nominees ever presented. One was Judge Pickering. One was Judge Pryor, who used to be a law clerk to Judge Wisdom, as I once was. I know the high respect Judge Wisdom had for him. The end result was that we had this Gang of 14, and the Democrats ended up only stopping five of President Bush's judges, but that was the first time in the history of the Senate. To date, including the judges we are discussing now, the three on the DC Circuit Court, the total is five. So that is it. How can anyone say President Obama has not been treated fairly when, in fact, the answer is zero on the Supreme Court, zero on district judges, zero on Cabinet and two on sub-Cabinet, and the same on circuit courts that President Bush had? I asked the Senate Historian if President Obama's second term Cabinet nominees had been moved through the Senate more swiftly or slower than those of his two predecessors, Bush and Clinton. The Senate Historian told me it was about the same. So on that question, that is a fake crisis. The second allegation is that it takes too long for President Obama's nominees to come through the Senate. Well, we have something on our desks called the Executive Calendar. Every Senator has this. There are 44 Senators in their first term, and maybe some haven't had a chance to read it very carefully, but it has on it all of the names of everyone who could possibly be confirmed. The way Senate procedure works is a nominee comes out of a committee to the Executive Calendar. Let me state the obvious: All of the committees are controlled by the Democrats. So if we want to report someone for the National Labor Relations Board, it has to be approved by a majority of senators on the committee on which I serve. Democrats have a majority of the seats on the Committee; so a nominee gets on this calendar by a majority of Democratic votes. So how long have the people on the calendar been waiting? Well, 54 of them have been waiting only 3 weeks; in other words, they just got there. Most of them aren't controversial. Usually they are approved on a day such as this when we are wrapping up before we go home for a week or two, so half of them would probably be gone today. There are 16 who have been on the calendar for up to 9 weeks. That is a very short period of time in the U.S. Senate for people to have a chance to do their other business and get to know the nominees. There are eight who have been on the calendar more than 9 weeks. Of the eight, two are being held up by Democrats, and two more are Congressman Watt and Ms. Millett. That leaves four, and one of those is a newscaster who has been nominated to be a member of the board of the Morris K. Udall Foundation and who is being moved along with other people to that foundation board. In other words, it is not true that there are people being held up for a long period of time because the only way a nominee can be confirmed in the U.S. Senate is if the majority takes someone from this Executive Calendar, moves their nomination--it doesn't have to go through any sort of other motion; he can do it on his own--and then we move to consider that person. Well, one might say: But someone can hold each up one of those. Yes, we can, under the cloture procedure. But let's take an example. Let's say Senator Reid, the distinguished majority leader, were to come, under the old rules, to the floor and say: I believe Republicans are holding up 10 of our lower-level nominees in an obstructionist way. So let's say he arrives on Monday and he files cloture. He moves to confirm all 10 of those. He takes them off this calendar, he moves them to be confirmed, and he files cloture on each of the 10 on Monday. Tuesday is what we call an intervening day. He can get the rest of them confirmed, by bankers' hours, by Friday if he wants to because after he has that intervening day, there could only be, because we changed the rules earlier this year, 8 hours of debate, and his side can yield back their 4 hours, and then we go to the next one and then the next one. So we have 40 or 45 hours, and we have them all. The majority leader, if he wished to, could confirm all of these people very easily unless 41 Republicans said no. But what we have already seen is that almost never happens. In the history of the country, it has happened twice to President Obama on his sub-Cabinet members, never on a Cabinet member; and never on district judges. So the majority leader had plenty of opportunity to have everybody confirmed if he wanted to. This is why Senator Byrd, who was majority leader and minority leader, in his last speech to the Senate said: There is no need to change the rules--and I am paraphrasing. I was at the Rules Committee hearing when he spoke. He said: A majority leader can use the rules that we have--that is, until today--to do whatever he wants to get done. Then there is the last charge about the District of Columbia Circuit. That was the other pretext for this. Somehow Republicans were doing something wrong by saying it is too soon to cut off debate on the President's three nominees for the District of Columbia Circuit. Republicans were doing--to the letter--exactly what Democrats did in 2006 and 2007. They were saying that court is underworked, that other courts are overworked, and we ought to move judges from where they are needed least to where they are needed most before we put anymore judges on the court. This is the letter sent on July 27, 2006, by all the Democrats on the Senate Judiciary Committee, including Senators Leahy, Schumer, Feingold, Kohl, Biden, Feinstein, Ted Kennedy. They said ``under no circumstances'' should President Bush's Republican nominee be considered, much less confirmed, by this committee before we address the very need for the judges on the committee. All we in the Republican Party were saying is--Senator Grassley has had his bill in since 2003; the Democrats said in 2006 we should not put anymore judges on the court until we look at where the judges are needed--we are saying: Consider Senator Grassley's bill before you confirm the judges. So that is the excuse--the flimsiest of excuses. The idea that President Obama is not being treated at least as well as previous Presidents with his nominees is just not true. The filibuster has not been used to deny him nominees, except in two cases for sub-Cabinet members; and in the case of circuit judges, no more than with President Bush. The majority leader has not used the rules he had before him to easily confirm the people on the Executive Calendar. Those on the Executive Calendar for the most part have only been there for a few weeks. So why then did the majority feel the need to take this extraordinary action? That takes us back to where we started. This is, very simply, another partisan political power grab to permit the majority to do whatever it wants to any time it wants to do it. The American people--millions of them--are filling out their insurance forms. They are trying to make the Web site work. They are terrified by the fact that they may not have insurance by January 1. That is totally the result of a partisan political power grab in the middle of the night 3 years ago that put ObamaCare into place. This is another example of that. The only cure for that is a referendum next November. I deeply regret the action the Democratic majority took today. It is the most dangerous and the most consequential change in the rules of the Senate since Thomas Jefferson wrote those rules at the founding of our country. Madam President, I would refer my colleagues to the letter I had included in the Record yesterday, the letter from the Senate Democrats in 2006 arguing that the DC Circuit should have no more judges until we consider the proper number and also a 1-page list of the total number of sub-Cabinet members who have ever been denied their seat by a failed cloture vote--and that number is seventeen in the history of the Senate; two under Clinton, three under Bush, and two under President Obama--plus five Bush judges and five Obama judges.

Mr. ALEXANDER. I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ALEXANDER. Madam President, I ask unanimous consent that I be allowed to speak as in morning business for 10 minutes, without taking the time from either side.

Mr. ALEXANDER. Madam President, I thank the Senator from Texas and the Senator from Missouri for their courtesy, and I will endeavor to do it a little quicker than in 10 minutes. Changing Senate Rules Madam President, this weekend, Vanderbilt plays Tennessee in a football game in Knoxville. Let's say Vanderbilt gets on the 1-yard line of Tennessee and Tennessee then says: Well, we are the home team. Let's add 20 yards or whatever it takes to win the game. Or let's say in the World Series recently the Red Sox were behind St. Louis in the ninth inning and the Red Sox said: Well, we are the home team. Let's add a couple of innings or whatever it takes to win the game. Everyone, I think, would say that is cheating. Everyone would say: You are destroying the game of football or baseball. If a home team could change the rules at any time during the game or whatever it takes to win the game, what kind of game is it? That is what Senator Vandenberg said after World War II and Senator Levin repeated to all of us--that a Senate in which a majority can change the rules any time the majority wants to change the rules is a Senate without any rules. Yet we hear that is what the Democratic majority may be seeking to do this week. They are unhappy, they say, that Republicans have said it is premature to vote up or down on three circuit judges nominated by President Obama--even though that was exactly the position of the Democratic Senators in 2006 and 2007 when they argued that the DC Circuit Court is underworked and that we should transfer judges from where they are needed the least to where they are needed the most. So they are going to change the rules of the game during the game or whatever it takes to get the results they want. We have a lot of new Senators on both sides of the aisle. Nearly half the Senate, 44 members, are in their first term. It is important for them to remember that in Senator Reid's book he said that to do this would be the end of the U.S. Senate, that Senator Robert Byrd--probably the most distinguished Senate historian in its history--said in his last speech to us that the filibuster is the necessary fence against the excesses of the majority and of the Executive. It is the fence against what de Tocqueville called in the early 1830s the greatest danger to our country that he saw, which was the tyranny of the majority. You may ask, how could this possibly happen? Here is how I am afraid it is happening. Sometimes we get off in our rooms by ourselves--and Republicans do it as well as Democrats--and we give ourselves our own version of the facts. The last time this came up, we tried to address this in the Old Senate Chamber. I think all of us thought it was a pretty good session. But this is my third opportunity to respond to these nuclear threats, and I am not going to do it again. The President said during the government shutdown that he was not going to negotiate with a gun to his head. Neither am I. Democrats have had their finger on the nuclear button for 2 years. I hope they will reconsider. No. 1, I hope they will read Senator Leahy's letter, which I ask unanimous consent to have printed in the Record.

Mr. ALEXANDER. It was signed in 2006 by all the Democratic members of the Judiciary Committee: Senator Leahy, Senator Feinstein, Senator Kennedy, Senator Biden, Senator Schumer, Senator Durbin, Senator Feingold, and Senator Kohl. These Senate Democrats said under no circumstances should we consider confirming a judge to the DC Circuit when it is so underworked. So the Republican President and the Democratic Senate agreed with that and reduced the Court's size by one judge--just the same argument being made today. No. 2, any suggestion that the President's nominations are being held up is completely wrong. I invited the Congressional Research Service into my office. I asked that question. They have said: No. President Obama's cabinet nominations in his second term are being considered at about the rate as those of President Clinton and President George W. Bush. On every Senator's desk is an Executive Calendar. Every person who could be confirmed by the Senate is on this calendar. There are about 11 pages. The one who has been on there the longest goes back to February and six were reported in the Summer. But all the rest of them go back just to September 12--just a few weeks. Most of them have been there just 3 or 4 weeks. So people are not being held up. The only way a nominee can be reported to the Senate floor is by a Democratic committee. The only person who can bring them from the calendar to be confirmed is the Democratic leader. Why doesn't he bring them to the floor and let them be confirmed? In the history of the Senate--and this is from the Congressional Research Service--there have only been 17 executive nominees in its history who have failed to be seated because of a filibuster vote, a failed cloture vote. There have been two under the Clinton administration, three in the Bush administration, two in the Obama administration. There have been five Bush circuit judges and five Obama circuit judges. Never a Supreme Court Justice--there was a little exception with Abe Fortas, which was different--never a district court judge, and never a Cabinet member denied a seat by a filibuster--a failed cloture vote. So where is the crisis? In conclusion, I would make this suggestion: I think what makes Americans angry about ObamaCare is it is taking us in the wrong direction, it is the 3,000-page bill, but as much as anything else it is the raw exercise of political power in the middle of the night during a snowstorm to pass a bill by a partisan vote, without any bipartisan support. If the Democrats proceed to use the nuclear option in this way, it will be ObamaCare II, it will be the raw exercise of political power to say: We can do whatever we want to do. Grantland Rice, a famous sportswriter, once said: ``It's not whether you win or lose, it's how you play the game.'' In this case, it is not so much what the rule is, it is how you change the rule. There have always been a few Senators on either side of the aisle who care enough about our institution and enough about our Constitution of checks and balances to stop a stampede that we will later regret. I hope that will be true again. I hope we will resist turning the Senate into an institution where the home team can cheat to win the game, to get whatever result it wants at any time it wants. Because as Senator Vandenberg said, and Senator Levin has repeated: A Senate where a majority can change the rules any time it wants is a Senate without any rules at all. I ask unanimous consent to have printed in the Record a 1-page summary of the 17 nominations that have not been confirmed after a failed cloture vote, which, according to the Congressional Research Service, is the entire number in the history of the U.S. Senate that have ever been denied their seat by a filibuster.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I agree that there are issues associated with animal drug compounding that should be examined. This bill does not change the current animal drug regulatory structure, and it is my hope that FDA would exercise its current enforcement authorities, as well as work with State pharmacy boards, to ensure that the law is being followed with respect to animal drug compounding, including compounding from bulk chemicals and the copying of approved drugs. In addition, Congress should utilize its oversight authorities to ensure that the agency acts accordingly. I plan to work with my colleagues in the Senate and the House to ask the Government Accountability Office to look at compounding of animal drugs.