Lamar Alexander

Mr. ALEXANDER

Mr. ALEXANDER. In addition to that, let's say I am the Governor of Tennessee and I look to the Senate and say: These guys can't get anything done. They have been debating this ever since Senator Enzi has been a Senator. They have been debating it for 14 years. They are never going to do anything. So I just bring a lawsuit and I say: If you are going to sell in Tennessee, you are welcome, but you are going to collect the tax. I mean, Tennessee businesses collect the tax and send it in. So if you want to come in and sell to us, you do that too. We are going to treat you exactly the same way. Now, let's say the Congress hasn't acted. Then that seller in Illinois who wants to sell in Tennessee has not only the State taxing jurisdiction to consider, he has 95 counties to consider, he has several dozen cities with local sales taxes to consider, and he has 9,600 jurisdictions across the country to consider if we don't act. So some of the opponents of this legislation who raise this 9,600 jurisdictions--this is the solution to that problem. If you want to sell by catalog or online, this simplifies it for you, it reduces your liability, it reduces the number of forms, and it requires the States to provide the software that you would use, which many businesses are using today and it works for them. So I would ask the Senator from Illinois, don't you imagine if we don't act, another consequence will be some Governor in some State will go back to the Supreme Court, and the Supreme Court will say: Twenty years have passed. We now have an Internet. There is no burden on interstate commerce, so it is up to the States to decide what to do. And then we would have a big free-for-all.

Mr. ALEXANDER. Mr. President, I see Senator Enzi is here, and I appreciate his patience in allowing me to go ahead, but I know if I were still the Governor of Tennessee--which I am not, and I won't be again--and Congress did not act on this and I saw an opportunity--if I looked across my State and I saw that our tax laws treated some taxpayers one way and other taxpayers a different way and instate businesses one way and out-of-State businesses better, it wouldn't take me 20 minutes to call the attorney general over and say: Let's take this case to court. Let's go back to court. If somebody is going to sell in Tennessee, they are going to collect the tax. I believe I would have a reasonably good chance of winning. And I am confident that, knowing a number of the Governors around this country, if we fail to act, I will bet one of them will be in court the next day. I congratulate Senator Durbin and Senator Enzi for their persistence in creating what is an 11-page bill about two words--States rights-- that will--my prediction--allow many States to lower their tax rates when they collect taxes that are already owed but not paid and treat businesses the same way and taxpayers the same way. I thank the Presiding Officer, and I yield the floor.

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

Mr. ALEXANDER. Mr. President, occasionally some of my friends on the other side of the aisle will say President Obama is being poorly treated on his nominations. That did not ring true to me because it seems to me that just the reverse was true. I have spent a good deal of time in the last two Congresses to actually make it easier for Presidents--not just President Obama but any President--to have his or her nominations considered in a timely fashion. There are about 1,000 nominations that a President makes in the whole government that are subject to advice and consent. This is the constitutional authority of the Senate. It was put there deliberately by the Founders to provide a check and balance. The Founders did not want a king. They had been accustomed to tyranny and they wanted to think of ways to avoid that. So they created a President, not a king. They said the President shall, with these important nominations, send them up to the Senate. The Senate has the right to advise and consent. Movies and books have been writing about this. It is well known. Some of the most celebrated debates we have had in the Senate have been about Presidential nominations. But for the most part, the Senate listens to the President's nominations, extends to him the courtesy that he was, after all, elected by the American people, that he has a right to staff his government. He has the benefit of the doubt on his nominations for judges. So I was surprised to keep hearing from some of my Democratic friends. Every time we confirmed a judge, somebody would come on the floor and say: The Republicans are holding up President Obama's nominations. I did not think that was true. So I asked my staff to work with the Congressional Research Service. I come to the floor to include in the Record the facts which show it is not true. Here is the bottom line. The Senate has confirmed President Obama's nominations for Cabinet more rapidly than it did those of President George W. Bush or President Clinton; and has confirmed Obama's nominations to circuit courts--but not his district court nominations-- more rapidly than it did those of President George W. Bush. In 2013, the Senate changed its rules to speed up consideration of those district judge nominations. In the history of the Senate, of course this includes President Obama, no Cabinet member, unless we count John Bolton's nomination by George W. Bush to be the U.N. Ambassador, and no district judge has ever been denied his or her seat because of a filibuster; that is, a failed cloture vote. In the history of the Senate, only seven circuit judge nominees have been denied their seats by a filibuster, five of George W. Bush's nominees and two of President Obama's nominees. I ask unanimous consent to have printed in the Record this summary of President Obama's nominations, along with an article from the Washington Post that points out that President Obama's nominees have been confirmed more rapidly than those of the last three Presidents in his first term.

Mr. ALEXANDER. To be more specific about these matters, let's take circuit court judicial confirmations in President Obama's first term. According to our research, the average time for President Obama's nominees was 240 days. That is faster than President George W. Bush, 277 days from nomination to confirmation. So circuit court judicial confirmations which are usually the subject of great interest around here, President Obama treated better than President George W. Bush, slightly better. First-term district court nominees. The Obama average time, 221 days is slower than George W. Bush, 156 days from nomination to confirmation. That is why in January of 2013 we changed the Senate rules to speed this up. Apparently, that is working. Last time I checked, during this year, the beginning of President Obama's second term, he has to date had 13 judges confirmed. President Bush, in this same period of time in his second term, had one judge confirmed. Second-term Cabinet confirmations. The average time of President Obama's nominees is 46 days. That is faster than George W. Bush, 55 days, and faster than Bill Clinton, 68 days from announcement to confirmation. I mentioned the Washington Post article which said--it was published March 18, 2013. It says: He has announced eight nominees and still has four more cabinet or cabinet-ranked jobs to fill. By contrast, George W. Bush had made 11 nominations by this time in his second term--nine of which he made in the six weeks after reelection. Bill Clinton had announced 12 nominees by the end of December after his reelection. In other words, President Obama is a little slower in making his second-term nominations. According to the Congressional Research Service,-- Says the Washington Post: --it took an average of 54.6 days for Bush's second-term nominees; that figure was 67.8 days for Clinton's picks and 56 days for Ronald Reagan's. So the Obama nominees were moving more rapidly. Senate filibusters that denied a Cabinet nominee his or her seat due to a failed cloture vote. It has never happened in Senate history so far as we can find, with the exception of President George W. Bush's nomination of John Bolton. There have been occasions when the minority says we are not ready to cut off debate yet. We have more information we want about a Cabinet member. That happened with Secretary Hagel. Many of us made it clear to the majority leader that his motion to cut off debate on Secretary Hagel's nomination was premature because it had only been reported by committee for 2 days; we requested another 10 days to consider it, that was until after the recess, and said that there would be an up-or-down vote. But so far as we are able to tell, there has always been an up-or- down vote on any President's nominee for the Cabinet, after that Cabinet member has gotten to floor. Now it may be that in the past some Cabinet nominees fell by the wayside in committee. I have repeated on the floor my own experience in 1991, when President Bush nominated me to be Education Secretary and Senator Metzenbaum put a hold on my nomination that lasted a month, but I was eventually confirmed unanimously. So there may have been secret holds in the past that slowed down nominations or even may have killed one. But so far as the Congressional Research Service has found, no Cabinet member by President Obama or any President has been denied his or her seat ultimately by a failed cloture vote. Same with district judges. No district judge in the history of the Senate has been denied his or her seat by a failed cloture vote. There may have been a cloture vote on one or two occasions, but in the end, that person was finally seated. Then, as far as circuit judges, one of my great disappointments in the Senate was when I arrived in 2003. The Democrats had cooked up a plan to filibuster President Bush's circuit court Federal nominees. So far as I can tell, that had never been done before. There was always an up-or-down vote. Even in the case of Clarence Thomas, for example, a controversial nominee for the Supreme Court, I think the vote was 53 to 47 or 52 to 48. There was no thought of killing Clarence Thomas's nomination by a cloture vote, by a 60-vote margin. What happened was, without dwelling on it too much, Democrats decided they did not like some of President Bush's nominees. It was not they were not qualified. Michael Estrada was one, one of the most eminently qualified persons ever nominated. Bill Pryor was another one, from Alabama, former law clerk to Judge Wisdom for whom I used to clerk. Pickering of Mississippi was another. They were basically smeared is what happened. It was an outrageous thing. I remember I was waiting to make my maiden speech as a Senator in 2003 on another subject. I got so upset about this. The first time I spoke on the Senate floor was against that, against that practice of denying a President an up-or-down vote on his circuit judge nominees. If you do not like the person, vote against him or her but at least allow an up-or-down vote. That so enraged the other Republicans that they wanted to change the rules of the Senate. They said: OK. We have the majority. There are 55 of us. We will just change the rules. We will confirm all of President Bush's judges with 51 votes. That is what the Democrats have tried to do at the beginning of the last two Congresses: We have enough votes to do it. We will change the rules and everything will be 51. Cooler heads prevailed. I made a couple speeches about it. Democrats and Republicans got together, one of these gangs that we have, maybe 14 Members, they said: Look, except in extraordinary cases in the case of circuit judges, there will always be an up-or-down vote on a President's nominee. But a lot of the damage had been done. Five of President George W. Bush's Federal circuit judge nominees were denied their seat because of a filibuster. So as far as we can tell, with the research of the Congressional Research Service, that was the first time in the history of the Senate that it happened. As one might expect, now Republicans have done the same thing, twice in the case of Ms. Halligan. If we count her as twice, that is three. But we can count Miguel Estrada several times because he was filibustered a half dozen times. The record is the Democrats have now blocked five of President Bush's Republican nominees for circuit judge, and Republicans have blocked two of President Obama's nominees. I don't believe this is good for the Senate or for the country. It would be better if we had up-or-down votes for Cabinet members and for Federal judges, both Cabinet and district. The body of the Senate has precedents. My own personal view is as far as district judges go I will always vote for an up-or-down vote. As far as circuit judges go, I will always do so except in an extraordinary case. I have always thought a President ought to be able to have an up- or-down vote on a Cabinet member. Again, the Democrats, under President Bush, decided once not to do this. I believe it is important to bring this before the Senate. I would like us not to go any further in the direction we have followed in the last 20 years. I would like for us in the Senate to get back to where we recognize elections have consequences. The President needs to staff his government. Give the President the presumption of the doubt on judicial nominees. If we don't like the judge, vote no. This means Republicans now need to swallow a little hard because there is a Democratic President and a Democratic Senate. It will not always be this way. We may have a Republican President and a Democratic Senate. Then the Democratic Senate could decide never to confirm a Cabinet member or never to confirm a circuit judge. I think the American people would be very upset with that. It is important to bring this to the attention of the full Senate and place this in the record. One other aspect which is important, we have had very good conversations at the beginning of the last two Congresses about the rules of the Senate. The rules of the Senate are not as exciting as a debate about guns, immigration, or a debate about marketplace fairness, which is really the 10th Amendment we are having today. However, they are very fundamental to our country's structure. The wisdom of our Founders was that they set up three competing, sound branches of government. All need to function well in order for us to have our liberty. This is why we have checks and balances. We want our liberty. We don't want a king, we don't want a runaway parliament, and we don't want a runaway court. We want checks and balances so we, as individuals, can retain our liberty. I wish the Senate to function as it should and the advice and consent nomination to function as it should. This is why as part of our rules change we took some steps to streamline the advice and consent role of the Senate. We did this when it wasn't clear whether there would be a President Obama or a President Romney, which is one way we were able to do it with the Democratic Senate and a Republican House. We took some important steps. For example, we reduced the number of Presidential nominees which require a full-blown Senate confirmation by approximately 170. We took approximately 200 of those nominees right to the desk, and they were expedited. Unless an individual Senator says: I wish to have a full hearing on a member of the board for the Goldwater Scholarship Fund--or something such as this, then it stays on the desk, goes through the committee for vetting, and is moved to the calendar for a vote. This has worked pretty well. We did one other thing which was important and which, hopefully, the President and his administration are taking advantage of, we tried to work on the innocent-until-nominated syndrome which has existed around here for a long time. Whenever someone is nominated for a Cabinet position, we need to go through such a process of vetting, public scrutiny, and general indignation, we wonder why anybody in his or her right mind would do it. Many people won't. This is why we call it innocent until nominated. One reason for this is because of the multiplicity of forms a nominee such as the Secretary of Education needs to fill out. They might need to fill out one form about what their income was in 1977 and then another form about what their income was in 1977 by a different definition. When they arrive at their hearing and someone has made a mistake, some Senator accuses the nominee of perjury because he was sworn in and said he was going to tell the truth. It was easy to make a mistake under those circumstances. What we did was create a working group to review all the forms. They made recommendations mainly to the executive branch about simplifying them. The executive branch has worked with our Senate committees. They are doing this now. As a result, if I am nominated for Secretary of Education, I might fill out a single form which might comprise the only form I would need to fill out for the executive branch. Any Senate committee could ask any question at once and add that to the form, but they might agree to start with this form. It should make it simpler for the nominee, easier for the Senators as we go through the confirmation process, and it might be a way to help encourage talented men and women to enter public service. The President has said to several of us before that he recognizes part of the reason his nominations aren't moving as rapidly as he would wish is because of the vetting process, the process he and his administration need to go through before they even send anybody over to the Senate. Much of the delay is in the time which comes before a nomination actually arrives in the Senate. I hope this review will help to quiet down these--as Senator Grassley said--crocodile tears on the other side of the aisle. We don't think they are deserved. The President's nominees are moving more rapidly than the last three Presidents, and his circuit court nominees moved more rapidly than those of George W. Bush. As we change the rules to speed up his district court nominees--he is ahead 13 to 1 in terms of nominations in the second term for judges. This is a pretty good record. It is my desire the President will work with us to speed up the vetting process to develop an innocent-until-nominated effort, which is ongoing to enable it to be an advantage not to just this President but future Presidents. Hopefully, we may give respect and due consideration to any nominee the President sends forward. At the same time, the President will recognize we have an advice and consent responsibility. It may take some time. We will ask questions and may not want to move to a final vote at the very moment the majority leader may. This doesn't necessarily mean the nominee will be denied his or her seat. As a matter of fact, as far as I can find in the history of the Senate, it has not, with the exception of John Bolton. I yield the floor.

Mr. ALEXANDER. Mr. President, I see the principal leaders for this legislation, Senators Durbin and Enzi, and I congratulate them for their leadership. What they have been able to do is to come up with a simple, 11-page bill that has two words for a theme--States rights or 10th Amendment. We have a majority of Senators on the Democratic side and a majority of Senators on the Republican side who have indicated their support for it. They voted twice in support of it. I talked with Senators at the Republican luncheon today, and at least one Member told me he had a couple of amendments, and I encouraged him to bring them on down because we want amendments. We want this to be discussed on the Senate floor. Senator Reid, the majority leader, has said there will be amendments. I have a fishing amendment I would like to get passed somewhere, but I will not offer it on this bill because I want to offer amendments that are related to marketplace fairness. But there are a number of ideas that are, and they ought to be discussed. I wonder if, before I finish, I might ask the distinguished Senator from Illinois a question. Maybe I am just sensitive to this as a former Governor, as I know the occupant of the Chair is as well, but I wonder if the Senator from Illinois finds it a little ironic there are some people in Washington who say they do not trust the States to make decisions about their own tax structure. I was Governor of a State that has a triple-A bond rating, no State debt on roads, no income tax, is one of the best run States, and when I was there had eight balanced budgets. Unfortunately, during the 10 years I have been in the Senate, we haven't had any of that. So I feel just the reverse. In a constitutional framework that has a 10th Amendment that says decisions are reserved to the sovereign State, it not only smacks of a lack of respect for our constitutional structure, but it makes no sense to me that Members of Congress would not trust the Governor of Tennessee and the Legislature of Tennessee to make their own decisions. We had a representative today at a meeting that all three of us attended who said that in Ohio, as I recall, the legislature and the Governor have already decided that if we pass this law permitting Ohio to collect taxes from everybody who already owes them rather than just some people, they will reduce their income tax rate. So does the Senator find it ironic there would be people in Washington who don't trust the States to make decisions for themselves in a constitutional system that was created by sovereign States?

Mr. ALEXANDER

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

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I know Senator Barrasso is coming, but until he does, I wish to make a few comments about the Marketplace Fairness Act, which is the legislation before us today, and especially, to begin with, Senator Heitkamp's address, the new Senator from North Dakota. It is rare that a new Senator has a chance to come to the Senate and in her first few months find us debating a bill she brought when she was a State official in North Dakota 20 years ago. That shows why the Senate is a good place for people with a little bit of experience because she can bring to us exactly what we are talking about. Her story about the small business people who are making a few dollars and have a very small margin for profit and then who are discriminated against by out-of-State sellers who don't have to collect the tax that is already owed is a real story, and she made a remarkably good address and I compliment her for that and welcome her to the Senate. Sometimes we launch into these complicated debates without saying what we are talking about. Let me see if I can say in a few simple words exactly what we are talking about here. My wife gave me an ice cream freezer for my birthday last year. She got it from Williams-Sonoma. It is not one of those freezers you have to crank, as I did when I was a kid, and when you eat the ice cream it makes your head hurt because you would eat it too fast. This is a modern ice cream freezer, and you mix the stuff up and put it in, and after a while here comes the ice cream. But then I discovered that Williams-Sonoma also sells a mix you can order and that makes it even easier. So I ordered the mix. Williams-Sonoma has stores in Tennessee, but I ordered mine online. I don't do this very much so I am not the best online purchaser who is around. But I looked up the catalog number, punched a few buttons on my computer, and I ordered my ice cream ingredients. It asked for my name, address, and the information on my credit card. And with that information, two things happened: I ordered the ingredients and they arrived within a few days. But Williams-Sonoma, through the Internet, determined from my ZIP Code what the sales tax is in Tennessee and in my home county and will remit it electronically to the State of Tennessee. That is what we are talking about. If I go to the Williams-Sonoma store in Nashville and I buy the ice cream freezer or the ingredients, they add our 10-percent sales tax to it. If I order it online from Williams-Sonoma, they add the 10 percent, too, because I put my ZIP Code in. The way software is today, it is very simple to find out what the tax is in any jurisdiction. It is as easy as finding out the weather. If I want to know the weather in Maryville, TN, I put weather 37205. That is my ZIP Code. I find out the weather. Williams-Sonoma can find out the tax I owe on the ice cream ingredients that way. So the Williams-Sonoma store in Nashville collects the tax, and they have to do it by law. That is part of their business responsibility in the State of Tennessee. The Williams-Sonoma store online collects the tax because they have stores in Tennessee. But lots of other out-of- State sellers do not collect the tax that is already owed. It is owed. It is said there is a new tax here. I don't know where everybody got that. They must not have read the bill carefully. The U.S. Congress can't change the sales tax in Tennessee. We can't impose it, we can't lower it, we can't raise it. That is under the responsibility of the sovereign State of Tennessee. This bill has nothing to do with the Federal Tax Code. Caterpillars have as much to do with the Federal Tax Code as this bill does. So it has nothing to do with taxes. This bill has to do with two words, and two words alone: States rights. Or you could substitute those two words with Tenth Amendment. Do we believe here in the Senate that the Governor of Tennessee or Massachusetts or Kentucky or Wyoming or anywhere else has to come here and play ``mother, may I'' to ask permission to decide what the State tax policy ought to be in Tennessee? Tennessee imposes its own State sales tax. That is its decision. We do not have a State income tax. That is Tennessee's decision. Some States do. States have the right to be right; States have the right to be wrong. That came with our constitutional framework. We ignore it all the time. A lot of Senators who fly to Washington somehow get the idea--if they can get through the delay on the tarmac everybody else is experiencing right now--that this 1-hour flight makes them smarter because they flew up here. No, it doesn't make us smarter. In fact, we ought to leave to States the responsibilities that States are supposed to have--whether it is in education or in health care or anything else, but certainly in matters of State tax policy. We shouldn't be trying to tell Tennessee or Massachusetts or anybody else what their taxes ought to be. What we are doing with this bill is we are doing what the Supreme Court said we are the best persons to do. That is what Senator Heitkamp said a little while ago. We are the ones to write the rules to say: States, of course, may decide whether they want to collect the State sales tax and use tax from all the people who owe it or some of the people who owe it. That is what the issue is. Let's say we pass the Marketplace Fairness Act. It says that Tennessee can make its own decision about how it collects its sales tax and its use tax. Tennessee could decide it wants to discriminate against the Nashville Boot Company that sells boots out the front door, collects the sales tax, and sends it to the State. Let's discriminate against the Nashville Boot Company and tell the out-of-State seller of boots, You don't have to do that. Or, the State may decide--as I am sure it will, because the Governor, the Lieutenant Governor, and the legislators have told me they will. They may decide: We don't pick and choose between winners and losers, we don't pick and choose between taxpayers, we don't pick and choose between businesses. We want a level playing field. So we are going to say to the out-of-State seller-- catalog, online, or whatever it is--welcome. You can sell in Tennessee if you play by the same rules that people who live in Tennessee do. That is all you have to do. So the States are going to require, as it does, the Nashville Boot Company, the Williams-Sonoma store, the service station, the drugstore, to collect the sales tax and send it in to the States, and it is going to require the out-of-State seller to do the same thing. That is all we are talking about. If the out-of-State seller doesn't want to do it, it doesn't have to. Nobody is requiring people to sell their stuff in Tennessee. It is a free country. It is a big country. It is a big market. We produce 25 percent of all the money in the world. If you don't like Tennessee's rules, as long as they fit the constitutional framework of not imposing a burden on interstate commerce, you don't have to sell in Tennessee. We hope you will. And if it is as easy for you to collect the tax as it is to find out the weather in your hometown, we don't know why you wouldn't. We don't know why you would even expect that you would be treated better than somebody who lives in Tennessee and goes to work every day in Tennessee and pays taxes in Tennessee and collects taxes in Tennessee. We will treat you just as well as we do the local folks, but we are not going to treat you any better and put you at an advantage with our hometown businesses. That is what this is about, and that is all it is about. Let's make clear what this is not. It is not a tax. It is about taxes already owed. It is not a Federal tax. It is State taxes already owed. Sales taxes and use taxes, that is all we are talking about. Are we telling any State they must do this or must do that? No. We are saying to States that we are simply affirming the spirit of the Tenth Amendment, which says: You have the right to decide for yourself, Mr. Governor, Ms. Legislator, what your State tax structure ought to be. It is up to you. If you want to have just some people pay the sales taxes and use taxes that are owed and other people to not pay them, that is up to you too. That is your business. But this is a States rights Tenth Amendment decision that leaves to the States this ability. I wanted to talk mostly about what we are talking about: We are talking about what happens when you buy something online, from a catalog, and the local store, and making sure that States are able, if they wish, to treat all businesses in the same way. That is why so many conservative leaders, as they have understood this bill, have come to support it. This is a rarity in the Senate. This is an 11-page bill. Some people say it has been rushed. I wish to respectfully disagree with that. This legislation was introduced beginning in 2001. It was introduced in almost exactly the same form in 2011. It had a full hearing in the Senate Commerce Committee in 2011 in almost the same form of the 11- page bill that is before us today. Exactly this bill was filed on February 14, 2013, so everyone has had plenty of time to read it since February 14. This is a bill that has been here for a long time, and the reason it is before us and hasn't come through the Finance Committee is because the Finance Committee simply wouldn't hear it, act on it, and report it. We have a chance to amend it. The majority leader has said there will be amendments. It is my hope that Senators will come to the floor with their amendments as early as this afternoon. I hope Senators would want to keep amendments aimed at the subject of the debate, the marketplace fairness debate. There are many issues that have been raised. Let's bring them up, let's debate them, and let's vote on them. That is what we do when we are acting properly in the Senate. I mentioned some of the conservative leaders who have talked about this issue. William F. Buckley, before he died, talked about the unfairness of treating instate sellers one way and out-of-State sellers another way. Another leading advocate for the idea of marketplace fairness is Al Cardenas, who is chairman of the American Conservative Union. He has written eloquently about it. Former Governor Jeb Bush, former Governor Mitch Daniels, Governor Mike Pence, the Congressman from Indiana--these are leading conservatives on the Republican side. They have all said if Congress does not act, it freezes into place a system that picks and chooses among winners and losers, that treats one taxpayer one way and one business another way. That is not a good principle. That is not a good conservative principle at all. That is why so many of the Republican Governors, the Republican leaders--Art Laffer, President Reagan's favorite economist and distinguished writer, wrote in the Wall Street Journal last week that it would actually help economic growth if States were permitted to collect taxes from all of the people who owe it rather than some of the people who owe it. Mr. Laffer said, and I am paraphrasing, that the best tax policy is one that, when there has to be a tax, taxes the largest number of people at the lowest possible rate. Governor Haslam of Tennessee, Governor Otter of Idaho, many of the Governors have said if we have the opportunity to collect the taxes from everybody who already owes them, we have in mind a tax rate we would like to lower. We would like to have a lower sales tax rate in Tennessee. We don't like a 10-percent tax rate. One reason we have it is because some people do not pay it even though they owe it. The reason they do not pay it is because out-of-State sellers--catalog, online--many of them do not collect it as others will do. I think that is a summary of the legislation before us. It is about States rights. It is an 11-page bill. It has been before the Senate for months. The idea has been before the Senate for years. It does not seek to tell any State to do anything. New Hampshire does not have a sales tax. After this law is passed New Hampshire citizens will not have to pay a sales tax. If a New Hampshire company or Michigan company sells in Tennessee they will have to do what Tennessee companies do, or anybody else who sells in Tennessee will have to collect the tax and send it to the State government--or not sell. But unlike 20 years ago, that is pretty easy today. As I have said, it is as easy as putting in a ZIP code and finding out the weather. One can compute the tax the same way I found out what my ice cream ingredients from Williams-Sonoma cost and what the tax was, and in the same way I paid that tax. I look forward to the debate. I hope we can enact this bill. We have had 2 good votes: one at 74 votes and one at 75 votes. A majority of Democrats supported each vote. A majority of Republicans supported each vote. There is substantial support in the House of Representatives. This is an important States rights piece of legislation. It is part of our job to simplify things and not to require States to play ``Mother may I?'' with Congress about what their tax structure ought to be.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, seeing no other Senator here, I would like to turn to another matter. In his biography of Thomas Jefferson, Jon Meacham writes that Jefferson liked to fish. Jefferson ``had a favorite spot,'' Meacham writes, ``below the old dam on the Rivanna River.'' Thomas Jefferson, if he were alive, would be pleased to know Americans followed his example. Americans like to fish, and in Tennessee we have nearly 900,000 Tennesseans who bought fishing licenses last year, and they like to fish below the dams just like President Jefferson liked to do because they know that is where the fishing is sometimes the best. That is why there is such an uproar in Tennessee and in Kentucky and from fishermen all over the country about the unreasonable obstinance of the U.S. Army Corps of Engineers in seeking to put up physical barriers to fishing below the 10 dams on the Cumberland River. The Corps of Engineers is an honorable institution. The flooding season is upon us, and we all remember the terrific job they did last year and the year before when we had such serious floods along the Mississippi. We are grateful to them for that. But for whatever reason, the Corps of Engineers is rejecting every reasonable proposal from the States of Tennessee and Kentucky to say let us work with you to ensure safety below the dams on the Cumberland River in a way that continues to allow fishing when it is safe and that allows us to attract the jobs into our area. Senator Corker, Senator McConnell, Senator Paul, Congressman Whitfield, Congressman Cooper, Congresswoman Blackburn--we have all introduced legislation we call the Freedom to Fish Act. I met with every general and colonel I could find. I even talked to the Secretary of the Army and said: What in the world are you doing here? On these 10 dams ever since they have been built in the 1960s, people have been fishing there with their children and grandchildren. Some of the most ardent fisherman are retired Army Corps of Engineers people. They always come back and say: We have to ensure public safety. Of course they have to ensure public safety, but there are various ways to do that. They do not have to put up physical barriers across the dam. So they are on a path to take $2.6 million, during a time of sequester, that is needed for other projects to build these monstrosities across the river below these 10 dams. Up to now it has been mostly those of us in Congress who registered the complaints of the men and women who like to fish. I went to a rally at Old Hickory Lake about a month ago. There were a lot of people there. They were not of any particular party, I would say. They were tea party, environmentalist, outdoors men and women, retired Corps of Engineers people, a lot of grandparents--people were mad because they fished there with their grandchildren and wanted to keep doing it. Then I went up to Kentucky to Lake Barkley a week ago with Senator McConnell, Senator Paul, and Congressman Whitfield and found the same sort of thing there. The argument is that it is unsafe. Of course it is unsafe when the water is spilling through the dam. That is about 20 percent of the time. The rest of the time it is safe. Restricting fishing below the dams 100 percent of the time when it is only dangerous 20 percent of the time is like keeping the crossing gate down over the railroad track 100 percent of the time. We could do that. I think we have nearly 130,000 railroad crossings, but if we had a gate down on them all the time we could never go anywhere. People expect drivers to have enough sense to stay off the track when the train is coming. The track is not dangerous when the train is not coming and the water is not dangerous for fishing when it is not spilling through the dam. One reason we are outdoorsmen in this country--and the great American outdoors is a part of the American character and our ethic--is we want to go outside and evaluate the risk. We want to be on our own. We want to be able to make decisions. We don't want a government that is so all powerful and all knowing that it makes it risk free when we go into the great American outdoors. Now we have an additional voice that comes from the Democratic side of the aisle, and more important from the legal side. The Corps of Engineers, in talking with me, said: You know, we have legal liability. Here is an article that was in the Tennessean yesterday about the comments of Jerry Martin, the U.S. attorney for the Middle District of Tennessee, who retired last week. He was appointed by President Obama as a leading Democrat in the area. This is the U.S. attorney position that was first held by Andrew Jackson at one time. This is what the article said: Responding to the U.S. Army Corps of Engineers' proposal to limit fishing on dams along the Cumberland River and its tributaries in Kentucky, former U.S. Attorney Jerry Martin said that the Corps' plan is not worth the effort. Martin, who just weeks ago would have been responsible with carrying out the Corps' wishes, said the Tennessee Valley Authority's siren system, which goes off when water is released from the dams, is enough to ensure public safety. The Corps has proposed barriers along the river that would limit fishing access, citing safety concerns. Detractors say the move could cost millions of tourism dollars every year. ``These waters belong to the citizens,'' Martin, who was appointed by President Barack Obama in 2010, said in a prepared statement. ``In light of the tremendous protection from liability enjoyed by the Corps, I don't think it's reasonable for the Corps to ban everyone at all times from these public places. I am concluding my remarks because I see the Senator from Wyoming has arrived. Let's stop and think about this a minute. The Corps of Engineers now already has everybody in Tennessee of any political stripe saying: You are taking an unreasonable step. They have the wildlife agencies of Tennessee and Kentucky saying: We would like to work with you to help you do a better job of ensuring safety below the dams when the water is spilling through the dams, which is 20 percent of the time. We have the Tennessee Valley Authority with dams on the Tennessee River, which makes the Cumberland look like a stream, and the TVA allows fishing below the dams. It has sirens, it has signs, it has whistles. It assumes people are wise enough not to roll up just below the dam when the water is spilling through it. Just like we assume we are wise enough, if we put on a siren and put on the red lights, not to sit on the railroad tracks when a train is coming. Now the former lawyer who would have been responsible for defending the U.S. Army Corps of Engineers in a liability case says: These waters belong to the citizens. In light of the tremendous protection from liability enjoyed by the Corps, I do not believe it is reasonable for the Corps to ban everyone at all times from these public places. I call on the U.S. Army Corps of Engineers to recognize the voices of the people of our country--all over the country--who fish below these dams and accept the offer of the two States, Kentucky and Tennessee, to work with the corps to develop a reasonable attitude, a reasonable way of ensuring public safety for fishing below the dams. That is our opinion. We will pass a law to make it happen if we have to, but given the statement, especially of the retired U.S. attorney, Jerry Martin, who would have been the corps's lawyer in defending lawsuits about this, the corps needs to change its mind, act reasonably, and spend that $2.6 million on some more needed project. I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. I thank the Senator from New Hampshire for her courtesy. I am perfectly agreeable, following her speech, to dividing it, if Senator Durbin wishes to suggest an allocation of time.

Mr. ALEXANDER. I thank the Senator from New Hampshire for her courtesy.

Mr. ALEXANDER. I thank the Senator from New Hampshire and the Senator from Illinois for allowing me to have 5 minutes. I do believe in having regular order. I have been looking for it for quite a while on this bill. But let me start with exactly what the point of this bill is. This bill is about two words. It is about States rights. I say that as a former Governor who cares a lot about States rights. I see another former Governor sitting in the chair up there. What this bill does is it allows the Governor of Tennessee and the Legislature of Tennessee to decide whether to require out-of-State sellers in Tennessee to do the same thing we require of instate sellers in Tennessee. In other words, if the National Boot Company has to collect the State sales tax and send it to the State government when it sells a pair of boots, then an out-of-State catalog seller or an out- of-State online seller who sells boots in Tennessee has to do the same thing. It is that simple. It is an 11-page bill. That is a rarity around here, an 11-page bill. It doesn't make any of these decisions for the States; it just says the States can make that decision for themselves. With all respect to ourselves, I trust the Governor of Tennessee and the legislators of Tennessee to make tax decisions a lot more than I trust Washington politicians to make them. This has nothing to do with the Federal Tax Code. It has zero to do with it. It has about as much to do with the Federal Tax Code as the milk production bill. Actually, milk production has more to do with the Federal Tax Code. This is about what a State can decide for itself. If somebody from Ohio or Illinois wants to sell in Tennessee, they need to play by the same rules everybody in Tennessee has to play by-- which is all we are deciding, or at least the Governor and Legislature of Tennessee ought to be able to decide that. It is going to be done fairly. We have an equal protection clause in the Constitution that says you cannot treat an out-of-State seller in a different way than you do an instate seller, but that is the first point. This is about States rights. It is about the 10th amendment. It is about our saying: Yes, Governor, yes, legislature, you don't have to play ``Mother, may I?'' to the Congress. Make your own decisions about taxes. If you decide you want to treat one set of businesses differently than others and one set of taxpayers differently than others, you have the right to be wrong. That is your business. But if you decide you want to collect taxes that are already owed--that are already owed; this is not a new tax, taxes that are already owed--from everybody who owes the tax so you can lower your tax rate for everybody, you are free to decide that. That was the argument Art Laffer made in the Wall Street Journal last week. Art Laffer was President Reagan's favorite economist. That is the point he made. States have the right to be right. He said this: States have the right to be wrong. But if Tennessee or Idaho or any State can collect taxes from everybody who owes them, it can lower the tax rate for everybody. That is why so many conservative leaders support this, Art Laffer, Al Cardenas, the chairman of the American Conservative Union, Gov. Mike Pence, Gov. Mitch Daniels--almost all the Republican Governors support this. But all we are deciding here in this 11-page bill is two words: Do we respect States' rights to decide their own tax policy? Do we respect States rights as the 10th amendment suggests we do? As far as regular order, I wish the Finance Committee had reported a bill. This legislation was first introduced in some form in 2001. As the chairman of the Finance Committee said, he had a hearing on part of it last year. That was good. The Commerce Committee had a hearing on almost this identical 11-page bill last August. There have been repeated requests of the chairman of the Finance Committee to report the bill. He has not. That is what rule XIV is about. The majority leader said: If the committee is not going to hold a hearing and report the bill after that amount of time, then let's put it on the floor, let's debate it, let's amendment it. It has been thoroughly considered. It has been before this body and the American people for a good bit of time. The bill we were to move to today is exactly the bill that was introduced on February 14 of this year, this 11 pages--exactly the bill. It has been out there for everybody to see all that time. I urge the 75 Senators who voted for this during the budget resolution to reaffirm their vote for States rights--at least vote tonight to move ahead, and let's debate it. Let's put it on the floor. If people have amendments or objections, let's bring them down here and let's debate them and vote on it. If we do not, as Senator Heitkamp has said, who knows----

Mr. ALEXANDER. If I may use 30 more seconds?

Mr. ALEXANDER. Senator Heitkamp has pointed out that if we do not act, it will be one big mess. Instead of having a handful of jurisdictions where a seller can simply--when you buy your ice cream over at Williams-Sonoma and put in your credit card and ZIP Code, automatically the tax is collected by the seller out of State and sent to the State. Instead of that, you will have thousands of jurisdictions to contend with. This simplifies the process. This is States rights. This is an opportunity to debate a bill that has been around for more than a decade and that the country has been able to see for a couple of months. I urge our colleagues on both sides to take the conservative point of view and vote yes and move forward. I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I understand that unanimous consent was given earlier to have printed in the Record an op-ed from the Wall Street Journal by Arthur B. Laffer entitled ``Tax Internet Sales Stimulate Growth.''

Mr. ALEXANDER. Mr. Laffer, as most Americans know, is a distinguished economist. People sometimes said he was President Reagan's favorite economist. He makes the argument that many conservatives and many Governors across the country make, which is: Give us the authority to make these decisions for ourselves. We will collect taxes from everybody who already owes the taxes by requiring sellers to collect the taxes whether they are in State or out of State, and then we will lower the tax rate. Mr. Laffer says fairness legislation that collects taxes from everyone who owes it and then lowers the tax rate is better for economic growth, which is something our country desperately needs. Mr. President, I also ask unanimous consent to have printed in the Record the comments supporting specifically the legislation from Al Cardenas, chairman of the American Conservative Union, Governor Mike Pence of Indiana, and former Governor Mitch Daniels of Indiana.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, this bill was unanimously accepted in committee. It has the contributions of many Senators on both sides. It improves prevention and intervention in our schools, universities, communities, doctors' offices, and mental health clinics. I urge a ``yes'' vote. It is an authorization bill and, therefore, has no score.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I share the perplexed attitude of the Senator from Iowa about our friends' concern about nominations. The President has even talked about it. I have gone back and looked at the record. There was a Washington Post article 3 weeks ago. I gave a copy of it to the President. This is what it said: On Cabinet nominations, this Senate has considered President Obama's Cabinet nominations more rapidly than they did the last three Presidents. That is Cabinet nominations. Never in the history of the Senate has the Senate denied a Cabinet nomination by filibuster, with the exception of the Democrats blocking John Bolton in the George W. Bush administration. So the President is treated better on Cabinet nominations. Evidence from the Congressional Research Service says President Obama's circuit judges in his first term were considered more rapidly than President George W. Bush's circuit judges. Senator Grassley just pointed out that in the second term of President Bush he had 1 judge confirmed by this time; President Obama has 13. On district judges, according to the Congressional Research Service, during the first term of President Obama his district judges were considered a little more slowly than President George W. Bush's, but the Senate changed the rules earlier this year to cut down the postcloture debate time to make it easier to bring judges to the floor and get them through more rapidly. Perhaps that is why the score is 13 to 1, with Obama getting 13 judges and Bush getting 1 in the same period of time in the second term. I do not know where this is coming from. In addition, we have never blocked a district judge by filibuster--neither party in the history of the Senate. In the circuit judges we never blocked a circuit judge until George W. Bush made some nominations about the time I came to the Senate 10 years ago, and the Democrats started it. They caused Miguel Estrada to be blocked and a number of others, and they brought up cloture motions time after time and we had a gang of 6, 8, 10 or 14 who slowed it all down. But still the score is 5 to 2; 5 Republican judges blocked for confirmation by the Democrats under President Bush, and 2 by Republicans with President Obama. We worked pretty hard for the President to confirm his nominations. We had two sets of rules changes, and we have a number of expedited nominations which come now to the desk. We had about 170 nominations that have been completely removed from Senate confirmation. I would think the Obama administration would be thanking the Senate for its work to make it easier for any President to get confirmations. In any event, when we are talking about Cabinet Members, President Obama is being better treated than the last three Presidents. When we are talking about circuit judges he is better treated than George W. Bush. When we are talking about district judges he is treated a little worse in his first term than George W. Bush, but we changed the rules to speed up district judges. The score in the second term, as I have said twice now, is Obama 13, Bush 1--Obama way ahead. I like to see confirmations move ahead. I hope I do not hear this much more, when the record shows that in fact it is a manufactured crisis. I yield the floor.

Mr. ALEXANDER. Madam President, I ask for the yeas and nays.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, on March 27, Governor Bill Haslam signed a resolution passed by the Tennessee General Assembly supporting efforts in the U.S. Senate and the U.S. House of Representatives to prevent the U.S. Army Corps of Engineers from restricting public access to fishing areas below dams on the Cumberland River in Tennessee. The resolution, sponsored by State Senator Jim Tracy, recognizes the traditions that Tennessee anglers have enjoyed for generations, and the dire economic impact that the Corps' proposed restrictions would have on the State of Tennessee. I, along with the members of the Tennessee General Assembly, will continue to urge the Corps to consider alternatives that do not unilaterally prohibit access to some of the highest quality fishing areas in Tennessee and address the concerns of Tennesseans. I ask that Senate Joint Resolution 114, as passed by the Tennessee General Assembly and signed by Governor Bill Haslam, be printed in the Record.

Mr. ALEXANDER

Mr. ALEXANDER. I call up amendment No. 515.

Mr. ALEXANDER. Mr. President, I thank Senator Durbin and Senator Enzi for their hard work. They have taken a problem and simplified it and solved it, in my opinion. This is an 11-page bill, a rarity. It does only one thing. It gives States and State legislatures the right to decide to collect sales and use taxes that are already owed from all the people who owe it rather than just some of the people who owe it. I have a very conservative friend over here on the Republican side who said to me: I hate taxes, but the one thing I hate worse is people who owe taxes who do not pay them. That is what this is about. But for me as a former Governor, there is something even more important; that is, the importance that we respect our constitutional framework, which says Governors and legislatures should make their own decisions about their services and their taxes. That is the spirit of the 10th amendment. That is the spirit of this country. We don't require States to play Mother May I to the Congress of the United States. So we say to the Governor of Tennessee and the legislature of Tennessee: You decide whether you want to allow people who owe the sales tax not to have to pay it because the sellers do not collect it. That is why many Democratic Governors support this. But a growing number, an honor role of conservative leaders and Governors, support the Marketplace Fairness Act. Al Cardenas, chairman of the American Conservative Union, supports it. He says the system we have today is outdated and unfair. After that, Governor McDonnell of Virginia, Governor Corbett of Pennsylvania, Governor Haslam of Tennessee, Chris Christie of New Jersey, Mike Pence of Indiana, Mitch Daniels, Jeb Bush, Haley Barbour, Rick Snyder--they all say: Look, we are Governors of the States. We should have the responsibility for doing that. There have been some strange arguments made against this, such as wait for tax reform. How can you do this in tax reform if it not in the Tax Code? Have we sunk to a new low where we use the State budgets to balance our own budget? No, this is a straightforward issue. Are we going to respect, as we swore to do when we took an oath to this constitutional framework--are we going to respect the States, recognize that States have the right to be right and the States have the right to be wrong; that Illinois is different than Tennessee and Tennessee is different than Wyoming. Governors in those States can decide what their tax structure should be, how they want to direct it, and they should decide, in my opinion, although we do not have to decide that here, that they would not pick and choose between sellers, pick and choose between taxpayers and businesses. If I walk into the National Boot Company and try on a boot and buy it, the seller collects the tax, sales tax. If I order in a catalog the seller does not. The Governor of Tennessee wants to be able to treat them the same. I think we should do this. I fly up here every week for an hour. That hour plane ride doesn't make me any smarter than I was when I left Nashville. I think our Governor, our Lieutenant Governor, our legislature--very conservative, very Republican--understand that they do not like taxes, but they do not like, worse--they do not like, worse, people who owe taxes but do not pay them, and they want the right to fix that problem. I am in strong support and stand with the 15 or so Senators on both sides of the aisle who endorse the Marketplace Fairness Act. I congratulate Senator Durbin and Senator Enzi for their hard work. I yield the floor.

Mr. ALEXANDER. Thank you, Mr. President. We talked about how difficult this is. This is a good example of why we need to get this out of Washington and back in the States. For the last 15 years the States have been figuring out how to do this. They have it pretty well worked out, and in just a 20-minute debate we make it sound complicated. Here is how hard it is. If I buy some ice cream ingredients from Williams Sonoma, and they are in another State, I use my credit card, I put in my ZIP Code, and the software automatically tells Williams Sonoma what the sales tax is that is owed. They collect it and they wire it to the State government. That is all that happens. This debate sounds like it happened in 1890 before the horse and buggy, before the Internet. I mean, we live in a different world. Here is what is fair. What is fair is allowing a State--not Washington--listen to the chairman of the American Conservative Union Al Cardenas. He says: When it comes to state sales taxes, it is time to address the area where federally mandated prejudice is most egregious--the policy towards Internet sales, the decades-old inequity between online sales and in-person sales as outdated and unfair. If I am trying to run the International Boot Company, I have to pay a 10-percent penalty to somebody who is out of State. If somebody is out of State and by catalog or by Internet they want to sell to the 6 million people in Tennessee, they don't have to do that. They can sell in Kentucky, they can sell in Ohio, they can sell everywhere else. But if they want to sell in our State, they should live by the same rules Tennesseans do. We don't believe in picking and choosing winners and losers. We don't believe in treating one taxpayer this way and another one that way. We don't want to pick one business this way and another that way, and we don't like the idea of Washington making us play Mother May I to come up here and ask permission to decide whether we are going to collect a sales tax from everybody who already owes it rather than just some people who owe it.

Mr. ALEXANDER. Mr. President, I offer this amendment on behalf of Senator Paul and myself, with Senators Toomey and McConnell cosponsoring. It is designed to help 11 million low-income children in this country. We appropriate $14.5 billion every year through our title I Federal funding. It is supposed to go to them but it doesn't get there. That is agreed upon by both the left and the right. For example, Marguerite Roza, writing for the Center for American Progress, says the difference between school expenditures is often substantial, and she pointed out the money goes to schools where teachers are paid more but the children aren't necessarily the poorer children. So the poorer children--the ones we intend to help--are left in schools with less money. And sometimes the money can add up to quite a bit. The same analysis has been found by the Fordham Foundation--I would say that is a center-right organization--because of the Federal formula we use.

Mr. ALEXANDER. So we are suggesting to let the money follow the child to the school, whether it is public or private and accredited. I thank the Chair, and I yield the floor.