Lamar Alexander

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, if I might ask the Senator from Missouri to go ahead of me, if that is agreeable with the Senator from Washington.

Mr. ALEXANDER. Madam President, I thank the Senator from Montana for his comments, since Senator Enzi has probably been considering this bill his whole career. He came to the Senate nearly 18 years ago, and he introduced it 14 years ago. So even by Senate standards, it has had a good deal of calm deliberation. We have also had a hearing in the Finance Committee, where the distinguished chairman is in charge, and we have asked for a markup, which we haven't had.

Mr. ALEXANDER. I thank the chairman for his commitment to a markup. I wonder if I might ask through the Chair when that would come.

Mr. ALEXANDER. Madam President, I think this illustrates the problem we are having. How can this be a part of tax reform when it is not part of the Tax Code? It has been heard by the Commerce Committee in the Senate. It has been heard by the Finance Committee. It has not been marked up. It has been heard by the House Judiciary Committee. Senator Enzi has been working on it for 14 years. This is a very simple question. It is a matter of States rights, two words. Does a State, any State, have the right to decide whether to collect existing taxes from some of the people who owe the taxes or from all of the people who owe the taxes? In the State of Tennessee, at the Nashville Boot Company store, I walk in, I try on a pair of boots, then I go order it over the Internet so I do not have to pay the sales tax. What the State of Tennessee wants to do--the conservative Governor Bill Haslam, the conservative Lieutenant Governor Ron Ramsey, the Republican legislature, these are not a bunch of big tax people--they want to collect the sales tax from everybody who owes it and they would like to require those who sell into Tennessee to do the very same thing they do, what the Nashville Boot Company does when I buy from it: They add the sales tax to the bill. They collect it and send it to the State. How hard is that to do? My wife gave me an ice cream maker for my birthday last year. I ordered some ingredients to make chocolate ice cream, over the Internet. When I did that they added to my bill the sales tax based on my ZIP Code. It is as easy as looking up the weather on your computer. That is all we are deciding here. We are only deciding whether we in the Congress are going to make State governments in our constitutional framework play Mother May I, by coming and pleading with us to allow the State to decide what to do about its own taxes. The State of Tennessee wishes to reduce its tax rate. It wishes to avoid a State income tax. It doesn't like the idea of treating one taxpayer one way and another one another way; and one business one way and another business another way. It wants to make that decision for itself. When I was the Governor of Tennessee, nothing made me more unhappy than to look up at Washington and see people of my own political party come up here and think since they had taken an airplane to Washington, they had gotten smarter than I was, suddenly, just by an hour plane ride, and they were going to tell me what to do. Now we have an honor roll of conservatives, and I will just speak to the conservatives on my side for a while, who said we do not think States ought to be playing Mother May I to the Federal Government on this question. Give State legislatures the power to make these decisions for themselves. That is consistent with the tenth amendment. That is consistent with our constitutional framework. And most of them are saying, as ours is in Tennessee: If you give us this power, the right to do it, which the Supreme Court has said you clearly have the right to do it--you, Congress, are the most qualified to do it. You can make this decision. Give us this power and we will lower our tax rate. That is what our State wants to do. It might use the money another way. They might use it to pay outstanding teachers more, to lower the tuition rate. But States have the right to be right, and States have the right to be wrong. There was a Supreme Court case 20 years ago at a time when most Senators didn't even know there was an Internet. The Court did say that States could not impose a burden on interstate commerce. But it said Congress could write the rules for doing that. Now it is about as easy to add the sales tax if you are buying from a catalog or buying over the Internet as it is if you buy from a local store. There is no reason for us to take the position that only we know best about how States should make decisions about their services or their taxes. Some are worried that this might increase taxes. I have said most Governors think they will lower tax rates. But here is the honor roll of conservatives who are asking the Congress to reaffirm our commitment and understanding of our constitutional system which allows States to make this decision: Al Cardenas, chairman of the American Conservative Union; Governor Bob McDonnell, Virginia; Governor Tom Corbett, Pennsylvania; Governor Bill Haslam, Tennessee; Governor Chris Christie, New Jersey; Governor Rick Snyder, Michigan; Governor Butch Otter, Idaho; Governor Mitch Daniels, Indiana; former Governor Jeb Bush, Florida; former Governor Haley Barbour; the writings of the late William F. Buckley, et cetera, et cetera. It is time after 20 years to take this simple 11-page bill that says States have the right to decide for themselves whether to collect an existing tax from some of the people who owe it or from all the people who owe it, by requiring the seller to collect the tax at the time of the sale: same tax, same store. They ought to be able to do that. Finally, I ask unanimous consent to have printed in the Record following my remarks the comments of a number of conservative supporters of the Marketplace Fairness Act. In our State of Tennessee this bill is an insurance policy against a State income tax. We don't have one. We don't want one. It is also an opportunity for us to treat every taxpayer the same way. If you owe the tax, it is collected at the time of sale and you pay it, you don't avoid it. It is also a chance to treat all of the businesses that sell into Tennessee the same way. If you are going to sell to our 6 million people, we are going to treat you the same way we treat people in the State. We don't want to create an incentive for people to move out of Tennessee in order to sell into Tennessee. We want there to be a level playing field. If Montana businesses do not want to sell in Tennessee, that is their prerogative. But if they do, we want to treat them in the same way we treat all the other businesses in Tennessee. Let's make it very clear: This is not a tax on the Internet. We have a Federal law that placed a moratorium on Internet access taxes. Let me repeat that. We have a Federal law that is an existing moratorium on taxing the Internet. This is a question about whether the State of Idaho, the State of Wyoming, the State of Tennessee, the State of Massachusetts, or any other State, that may say if we are going to have a sales tax then we are going to collect it in the same way from all the people who sell to the people in our State. That is infinitely logical. With the advent of technology it is about as easy to collect it one way as the other. And it is fair. I congratulate Senator Enzi and Senator Durbin for their years of work. I appreciate very much the commitment of the chairman of the Finance Committee to say there will be a markup. I think it is absolutely wrong to think of it as part of tax reform since it is not part of the Tax Code. We might include a milk producers bill in tax reform as well by the Chairman's logic. They do not belong in the same place. This bill boils down to two words: It is a States rights bill. Do we have a tenth amendment, or the spirit of a tenth amendment, or do we not? Do we trust Governors and legislatures to make decisions, or do we not? Then they can decide whether they want to raise or lower taxes, whether they want to collect taxes from some of the people who owe it or from all the people who owe it. That is the issue, these two words: States rights. I think this issue is perfectly appropriate to bring up after 14 years of work by Senator Enzi, after hearing from the Senate Finance and Commerce Committee and the House Judiciary Committee. This is an opportunity for us to express our support for this principle of States rights and to give Governors and legislatures across the country a chance to treat businesses and taxpayers in the same way--stop picking winners and stop picking losers.

Mr. ALEXANDER. Mr. President, I wish to speak for a few minutes about 11 million low-income children in America, children which all of us would like to help. These are children that I wish would have a chance to get a little help getting to the starting line towards realizing the American dream. I am talking about the children we help through the Federal education program called title I of the elementary and secondary education act. It is the largest of our Federal programs aiding elementary and secondary schools. It provides $14.5 billion a year to local school districts. The express purpose of it is to help low-income children in schools across our country. The problem is that the money is not going to help those children as it was intended. It is being diverted for other purposes. As part of our discussion today and tomorrow on the budget, I will be offering an amendment on behalf of myself, Senator Paul, Senator Rubio, Senator Toomey, and Senator McConnell, which will redirect the 14.5 billion Federal dollars we spend on behalf of 11 million children living in poverty. This is the way we would do it: We would simply pin $1,300 in funds to each of those children, and let this money follow the child to the school they attend, any accredited school, public or private. In a contentious Washington world this is a problem which seems to have a broad amount of agreement from the left and the right. As I said, this $14.5 billion, which is appropriated expressly to help these 11 million children, isn't getting to them. It is ending up in other places. It is distributed by a complicated Federal formula which is generally based on the percentage or number of low-income children in a particular school district and the average per-pupil expenditure in the State. What happens is the money largely follows the teachers' salaries. The children in wealthier districts are usually taught by teachers who earn higher salaries. The children in poor districts are usually taught by the teachers who earn lower salaries. A lot of the title I money ends up in the schools with more of the wealthier children instead of the schools with the poorer children. Marguerite Roza, in a report by the Center for American Progress-- which I think can be fairly described as a progressive think tank, explained: The difference in actual school expenditures are often substantial because teachers' salaries are based on their experience and credits or degrees earned, and because high-poverty schools have many more less experienced, lower paid teachers and much more turnover than low- poverty schools. She offers Baltimore as an example: When teachers at one school in a high-poverty neighborhood were paid an average of $37,618, at another school in the same district the average teacher's salary was $57,000. Assuming the same average number of teachers per school, say 20, the difference in dollars for the two schools is $387,640. That is a lot of money per school. Under the Federal formula, this is considered ``comparable'' or fair, which means the poor school is essentially stuck with newer, less expert teachers. This is a system designed for the bureaucracy and the adults, not the students. A different report by the Fordham Foundation, which I would call a center-right foundation, came to a similar conclusion. It summed up its findings by saying: All of these problems have a common root: today, money does not follow children to the schools they attend according to their needs. Instead, money flows on the basis of factors which have little to do with the needs of students, the resources required to educate them successfully, or the educational preferences of their parents. We have scholars from the Center for American Progress and Fordham Foundation coming to the same conclusion, largely because the title I money is distributed based on teachers' salaries and because very often the wealthier school districts pay teachers more. We have significantly more title I money in a school with wealthier children than with poor children, even though the purpose of the $14.5 billion is to help those low-income children move from the back of the line to the front of the line. This is a lot of money. This is $1,300 per child. If you have a school full of children who bring $1,300 with them pinned on their jackets, they have a lot of money to help those children. I think most of us believe that if we are trying to help children get to the starting line, children who might not have had as much help as other children, might not have had a book read to them by their parents, might not have eaten lunch that day, and who have other challenges associated with living in poverty, then we want to make sure we are spending every single dollar designated toward them for them. Why isn't the right solution simply to say let's take these $1,300 per student and let it follow the student to the school they attend? This means almost all the money would go to public schools. We have 100,000 public schools in the country, but children are usually assigned to public schools. Sometimes they may choose a public school. This is a matter of State law. This wouldn't interfere with that at all. If the parent chooses instead for their child to go to a nonprofit or attend a private school, as long as that school is accredited, the $1,300 would follow the child to that school. Some may say that sounds a little different than the way we do it now. It is a little different, but the main difference is the money follows the child. It is not different that we spend public money in private schools. We already do that with title I money by providing services to children who go to private schools under a formula in the Federal law. We have long experience, dating back to World War II, with public money following college students to community colleges, to universities, and even after World War II to high schools. The GI bill followed the veteran to the school they wanted to go to, whether it was the University of Tennessee, Notre Dame, Yeshiva, or any other school, as long as it was an accredited school. Of course, in our system of education I think we would all agree that we have had the greatest success with higher education, for a variety of reasons. I believe one of the reasons for this success is we have provided generous amounts of Federal dollars that follow the student to the accredited college of their choice, public or private. We call those Pell grants. We call those federal loans. More than half of the college students in the country today go there with some government money that follows them to the academic institution of their choice. By allowing title I money to do this, we could say the $1,300 scholarship is almost a Pell grant for kids. We could say we will attach it right to the child. It follows the child to the school. It is the most logical way to do that. Some of my colleagues would like to fix this comparability problem by imposing a whole series of mandates on State and local school districts even though the Federal Government only supplies about 10 percent of all the money spent on local elementary and secondary schools. This would produce a minor revolution in the country, and it would be a gross overextension of Federal power to say that just because we provide 10 percent of the money, and we don't give it effectively, we are going to make it our job to tell Tennessee, Georgia, New Mexico, or any other State how to spend it. The simple and logical way to solve the comparability problem that the left and the right agree on is to let the $14.5 billion follow each of the 11 million children living in poverty to the school they attend. Then we could make sure that taxpayer dollars are being used in the most effective way to help these children have the single best opportunity they may have to get a leg up on reaching the American dream, which is through a good education in the best possible school. I look forward to introducing an amendment to do this. As the ranking member of the Health, Education, Labor and Pensions Committee, I look forward to working with Senator Paul, Senator Rubio, Senator Toomey, Senator McConnell, and, hopefully, a number of my Democratic colleagues to solve the misallocation of title I money. Let's do the simple and logical thing: Let the funds follow low- income children to the school they attend. I yield the floor.

Mr. ALEXANDER

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

Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak for 10 minutes and ask that the Chair let me know when 9 minutes has elapsed.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, we remember President Lyndon Johnson's courage and skill in passing the Civil Rights Act. We remember President Nixon going to China. We remember President Carter and the Panama Canal treaties. We remember President Reagan fixing Social Security and George H.W. Bush balancing the budget by raising taxes. We remember President Clinton and welfare reform. We remember President George W. Bush tackling immigration reform. If the history books were written today, we would remember President Obama for the sequester. This is unique in history. This is not the way our Presidents usually conduct themselves. Here we have a policy that was designed to be the worst possible policy, and that may be what our talented, intelligent current President is remembered for. He is remembered for it because it comes from a process he recommended, he signed into law, that he has known about for the last year, that he has done nothing about except to campaign around the country blaming others for it over the last month, and he seems determined to keep it in law. Now, for what reason could this be possible? Well, let's go back to why the President agreed to the sequester. He agreed to it in 2011 after suggesting the process from which it came in order to get $2.2 trillion in spending reductions so he could get a debt ceiling increase that lasted through the election. And he did it, for the second reason, because he did not want to go against his own party's constituency in tackling the biggest problem our country faces--the biggest problem according to the former Chairman of the Joint Chiefs of Staff, the biggest problem according to the President's own debt commission--the out-of-control automatic spending increases that are in the Federal budget. So we are left today with a sequester--automatic spending decreases which are the result of the automatic spending increases in entitlements the President is unwilling to confront. We are slashing the part of the budget that is basically under control. It is growing at about the rate of inflation. I am talking about national defense, national parks, National Laboratories, Pell grants, and cancer research. All that is growing at about the rate of inflation. We are slashing that part of the budget because the President does not want to challenge his own party on the part of the budget that is out of control, growing at two or three times the rate of inflation: Medicare, Medicaid, Social Security, and other entitlements. This is not how our Presidents usually have acted when confronted with a great crisis. When President Johnson dealt with civil rights, he knew he would be terribly unpopular in Texas and throughout the South. When President Nixon went to China, he knew Republican conservatives would be angry with him. President Carter enraged many Americans by his support for the Panama Canal Treaty. President Reagan made many seniors unhappy when he fixed Social Security. George H.W. Bush probably lost the 1992 election when he raised taxes to balance the budget. Bill Clinton was pilloried by his own party when he worked with Republicans to reform welfare. George W. Bush made many radio talk show hosts very unhappy when he tried to change our immigration laws. Why did they do it? They did it because they were the President of the United States, and that is what presidents do. Robert Merry, a biographer of President James K. Polk, told me recently that every great crisis in our country has been solved by presidential leadership or not at all. Every great crisis in American history has been solved by presidential leadership or not at all. Yet this president seems determined not to exercise that sort of presidential leadership. So his presidential leadership is a colossal failure, first, because he will not respect this Congress and work with it in a way to get results that all of the presidents I just mentioned did. The New York Times had a very interesting story this Sunday about how President Woodrow Wilson would come down to the President's Room right off the Senate and sit there three days a week with the door open, and he got almost everything he proposed passed, until he went over the heads of Congress around the country about the League of Nations and lost. Or Senator Howard Baker used to tell the story of how, when Senator Everett Dirksen, the Republican leader, would not go down to the White House and have a drink with President Johnson in 1967, President Johnson showed up with his beagles in the Republican leader's office and said: Everett, if you won't come have a drink with me, I am here to have a drink with you. I am not here to advocate having drinks, but I am here to suggest that when they disappeared into the back room together for 45 minutes, that played a big role in writing the Civil Rights Act of 1968 because it was written in Everett Dirksen's Republican leader office right down the hall, at the request of the Democratic President of the United States. And Senator Harkin--I do not think he will mind me telling the story about the afternoon 20 years ago when he was in his office and he got a telephone call from President George H.W. Bush's office. Would he come down with a few other Congressmen? The President was there for the afternoon. Mrs. Bush was in Texas. They spent an hour together, and the President showed them around. On the way out, Senator Harkin said to President Bush: Mr. President, I don't want to turn this into a business meeting, but one of your staff members is slowing down the Americans with Disabilities bill. That conversation, Senator Harkin says, changed things at the White House and helped that bill to pass. Or Tip O'Neill, going into the Democratic Caucus in the 1980s and being criticized by his fellow caucus members: Why are you spending so much time with Ronald Reagan? Why are you fixing Social Security? He said: Because I like him. Because I like him. Technology has changed a lot. But human nature has not. And relationships are essential in the Senate, in the White House, in politics, in church, in business, and all of our Presidents have known that you need to show respect to the people with whom you work if you are going to solve difficult problems. That is why I am disappointed by our talented President's unwillingness to work with Congress. There is no reaching out. It was 18 months before he had his first meeting with the Republican leader one on one. He has known for a year the sequester was coming, but there was no meeting with the Republican or Democratic leaders that I know about until the day it started. It is breaking news when the President makes a telephone call to a Senate leader. And then the President spends his time running around the country taunting and heckling the Members of Congress that he is supposed to work with to get a result. What kind of leadership is that? I started in 1969 working in congressional relations for a President of the United States. I have worked with or for eight. I have never seen anything like it in my life. I have been a governor. That is small potatoes compared to being a president. I know that. But I worked with a Democratic legislature, and I guarantee you, if I had taunted them and heckled them and criticized them, I never would have gotten anything passed to improve roads or schools or get the auto industry into Tennessee. Instead, I would meet with them regularly. I would listen to them. I would change my proposals based on what they had to say. I would know they had to go back into their caucuses and still survive. I did not think about ever putting them in an awkward position when we were trying to get something done. I tried to put them in a position to make it easier to get something done. I changed my ideas and I could get a result. During elections we tried to beat each other. Between elections we sought to govern. This is all made worse by the Democratic leadership of the Senate deliberately bringing business to a halt we have a fiscal crisis, we have not had a budget in 4 years, we did not even pass any appropriations bills last year, there is little respect for committee work, and he has used the gag rule 70 times to cut off amendments from the Republican side of the aisle. For example, last week, we had several options on our side--I think there were some on the other side--to make the sequester go down a little bit easier, to make it make more common sense, and what did we end up doing? We were here all week, and we ended up voting on two proposals. They were procedural votes, and everybody knew they were political posturing not designed to pass. Why did we not just put it on the floor? There are 100 of us here. We are all grownups. We worked hard to get here. We have ideas. We might have improved the sequester. We had time to do it. But the Democratic leadership did not allow us to bring it up. So we end up with deliberately bad policy becoming law. It is not too late. There are things the President and we can still do. We could spread the pain across the whole budget. We could spread it across part of the budget. We could give the President more flexibility in making decisions. Or the President could come to us with his plan, this month, for dealing with the biggest problem facing our country: the out-of-control mandatory spending. He could do what Presidents Johnson and Nixon and Carter and Bush did before him. He could confront it, go against the grain of his party, work with Members of both sides, and get a result. It is not that hard to do. Senator Corker and I have a proposal to do it. There is the Domenici-Rivlin proposal to do it. There is the Ryan-Wyden proposal to do it. When part of the budget is growing at two to three times inflation and the rest is growing at about the rate of inflation, it is obvious which part we need to work on. It may be the President does not like some of us. Well, President Eisenhower had that same feeling about Members of Congress. Someone asked him: Then how do you get along with them? He said: I look first at the office. I respect the office. I do not think about the person who occupies the office. There are real victims here. In the short term with the sequester, there is cancer research, there are airline travelers, there are many people--the President has let us know about this--who are going to be hurt by this and be inconvenienced. In the long term, if we do not deal with this No. 1 fiscal problem we have, the real victims will be seniors who will not have all of their hospital bills paid in 11 years because the Medicare trustees have told us Medicare will not be able to pay all of them--the Medicare Trust Fund will be out of money--and young Americans will be forever destined to be the debt-paying generation because we and the President did not have the courage to face up to our responsibilities. So I would say, with respect, it is time for this President to show the kind of Presidential leadership that President Johnson did on civil rights, that President Nixon did on China, that President Carter did on the Panama Canal Treaty, that President Reagan did on Social Security, and that Presidents George H.W. Bush and Clinton and George W. Bush did. Respect the other branches of government. Confront your own party where necessary. Listen to what both have to say and fashion a consensus that most of us can support. We are one budget agreement away from reasserting our global preeminence and getting the economy moving again. As Robert Merry said: Every great crisis is solved by Presidential leadership or not at all. It is time, Mr. President, for Presidential leadership. I ask unanimous consent to have printed in the Record the article in the New York Times, from Sunday, entitled ``Wilson to Obama: March Forth!''

Mr. ALEXANDER. I yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, I thank the Senator from Utah for his leadership on these two pieces of legislation, and the answer is: No, the new health care law hasn't lived up to the promises. Let me cite an example. The President promised in the debates leading up to the health care act that if someone wanted to keep the insurance they had, they would be able to do that. I am afraid it is not working out that way, and here is why. What happens is that businesses around the country are finding out when the health care law goes into effect fully they will either have to supply a certain type of health care insurance, which in many cases--as many as half the cases according to some studies--is a better policy and more expensive policy than they are now offering their employees, or they will have to pay a $2,000 tax, to the Internal Revenue Service. That means the employee, if the business decides to do that, will go into the exchange and lose the employer insurance they had. Based on my experience in talking to many businesses, there is going to be a massive rush, by small businesses in particular and by many large businesses, to stop offering employer-sponsored health insurance to their employees and, instead, pay the $2,000 penalty, or tax, which means all of those employees--most of them lower income employees or middle-income employees--will lose the insurance they had and be in the exchanges looking for a new insurance policy.

Mr. ALEXANDER. I agree with the Senator from Utah. I think he stated clearly what the constitutionality is and he has been a most forceful advocate of that. As I think about the legislation we are talking about, I am thinking also about the employer mandate and the requirement that, as I mentioned earlier, employers pay $2,000 if they do not offer insurance or a $3,000 penalty if they offer the wrong kinds of insurance. I would say to the Senator from Utah that we are making it more difficult to lower the unemployment rate in this country, which has stayed too high, with 12 million people unemployed, when we keep loading up employers with costs that make it more expensive to hire an employee. If we make it more expensive to hire an employee, we don't give the employer an incentive to hire more people. In fact, we discourage the employer from hiring more people. I wonder if I might ask the Senator, in thinking about the employer mandate, if he agrees that employers across the country are considering reducing their number of employees, having more part-time employees in order to deal with this new cost of the employer mandate which is part of the health care law.

Mr. ALEXANDER. No, I would say to my friend from Utah, I am afraid the President was mistaken about that. And we have talked about some specifics, but let me give some very specific examples of why I believe that is true. Some time ago I met with a large group of chief executive officers of restaurant companies in America. The service and hospitality industries are the largest employers in America. Restaurant companies are the largest employer of low-income, young, usually minority people. These are Americans who are often getting their first job or they are Americans of any age who are trying to work their way up the economic ladder, starting with a lower paying job, a job that doesn't require as many skills, and hoping that instead of having a minimum wage they will end up someday with a maximum wage. But in order to get that maximum wage they have to get on the ladder. They have to start somewhere. Here is what I was told. The chief executive officer of Ruby Tuesday, Incorporated, which has about 800 restaurants, said to me--and he didn't mind being quoted--that the cost to his company of implementing the new health care law would equal his entire profit for the company last year and that he wouldn't build anymore new restaurants in the United States as a result of that. He said he would look to expand outside. Another, even larger restaurant company, said because of their analysis of the law, instead of operating their stores with 90 employees, they would try to offer it through stores with 70 employees. So that means fewer employees and it means fewer employees receiving employer health care. Then almost every other restaurant said they were looking for ways to have more part-time employees so they didn't have to incur the expense of the new health care law. So at least with that industry and those low-income, usually minority, often young employees, the jobs are going away because of the health care law. And with those jobs goes whatever employer health care insurance was being offered by those companies.

Mr. ALEXANDER. I certainly agree with the Senator from Utah, and that is the purpose of our legislation. We could offer more examples. The Wall Street Journal article of February 22 of this year said: Many franchisees of Burger King, McDonalds, Red Lobster, KFC, Dunkin' Donuts and Taco Bell have started to cut back on full-time employment, though many are terrified to talk on the record. These are the kinds of companies I was talking about. The article also references a 2011 Hudson Institute study that estimates the employer mandate will cost the franchise industry $6.4 billion and put 3.2 million jobs at risk.

Mr. ALEXANDER. I thank the Senator from Utah for this opportunity to have a colloquy with him, and I ask unanimous consent to have printed in the Record following my remarks letters from the National Restaurant Association, Chamber of Commerce of the United States, and the National Retail Federation, each of which strongly supports our legislation and makes the points we have made about the employer mandate.

Mr. ALEXANDER. Madam President, I see the Senator from Maryland is waiting, and I wonder, if we are through with our colloquy, if the Senator would allow me 2 or 3 minutes to correct a mistake I made on the floor of the Senate last week. Confessing error: I came to the floor following the vote on the Hagel nomination to point out the difference between a vote against a premature motion to cut off debate--which I thought the majority leader made--and an effort to kill a nomination with a filibuster, which are two different things. I pointed out--correctly--that in the history of the Senate, we have never denied to a district judge nominee his or her seat because of a failed cloture vote, and I don't believe we should. I pointed out we have never denied a Cabinet nominee his or her seat because of a filibuster, with the possible exception of John Bolton, whom the Democrats filibustered. Some Presidents count that nomination to the U.N. in their Cabinet and some don't. I then went on to say--incorrectly--that on appellate judges, the Democratic majority had filibustered and killed 10 of President Bush's nominations, and Republicans had in response denied two appellate judge seats by filibuster. Senator Schumer of New York--ever wary of what I might say--corrected me and said it was less than that. So I have consulted with him and his staff, and the score is actually 5 to 2. The correct result is that before George W. Bush became President-- and the Senator from Utah knows this story very well--there were no instances of an appellate Federal judge being denied his or her seat because of a filibuster. Then our friends on the Democratic side invented the idea of filibustering circuit judges and voted against a whole series of President Bush's nominees just as I came to the Senate: Miguel Estrada, Charles Pickering, William Pryor, Priscilla Owen, Carolyn Kuhl, Janice Brown, and then four more in 2004: William Myers, David McKeague, Henry Saad, and Richard Griffin. But then we had a cooling of tempers and a coming to our senses and a bipartisan Gang of 14 said we don't want to make this a new precedent, and we agreed--there was a consensus, anyway--that only in a case of extraordinary circumstance would there be a denial of a nominee of an appellate judge by a cloture vote. So then 5 of those 10 Bush nominees were approved. So the Schumer staff and my staff agreed with this--and if anybody thinks it is wrong, I would like to know--that only in five cases have Democrats denied a Republican President an appellate judge nominee by filibuster and only in two cases have Republicans denied a Democratic President's nominee by filibuster in the case of appellate judges. As I said when I began, the answer is never in the case of district judges and never in the case of Cabinet members, with the possible exception of John Bolton. I am glad to come to the floor and correct the record. I thank Senator Schumer for his diligence in noting my error.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, today I am introducing legislation along with Senator McConnell, Senator Paul, and Senator Corker, to prevent the U.S. Army Corps of Engineers from restricting fishing rights in some of the best fishing areas in the States of Tennessee and Kentucky below 10 dams along the Cumberland River. I have talked with the Corps several times about this. They have told me the only solution is legislation. I am hoping there is some other solution by reasonable compromise. But I am taking the Corps's advice. On Tuesday, Congressman Ed Whitfield, of Kentucky, introduced legislation on this matter, and so I am introducing similar legislation today. I have also drafted language that could be included in an appropriations bill that would prevent the Corps of Engineers from using any funds to restrict fishing in what is called the tailwaters below these 10 Corps of Engineers dams on the Cumberland River. Today I spoke with the Secretary of the Army, John McHugh. I urged him to have the Corps give Congress enough time to consider this matter, perhaps to work out something with the Corps by compromise or, if not, to pass legislation. On Monday, I am meeting with the Assistant Secretary of the Army, Jo- Ellen Darcy, who is in charge of the Corps of Engineers, to ask that the Corps stop taking any further action to build physical barriers along the Cumberland River. Earlier, I met with James DeLapp, the colonel who is the commander of the Nashville District. Then I met, along with Congressman Whitfield and Congressman Cooper of Nashville, TN, with MG Michael Walsh, who is the deputy commanding general. I have had a number of meetings on this subject, and I am determined to get some result, one way or the other. I am delighted to have the Republican leader, Senator McConnell, my colleague, Senator Corker from Tennessee, and Senator Rand Paul of Kentucky as cosponsors on the legislation. One may say, with a large number of problems facing our country--from Iran to the sequester--why is a Senator--in fact, four, and a number of Congressmen interested in fishing? There are 900,000 Tennesseeans who have fishing licenses, and one of my jobs is to represent them. I know and they know these are some of the best fishing areas in our State. This is an area where grandfathers and grandsons and granddaughters go on Saturdays and go during the week. There are lots of Tennesseeans who consider these prize properties and their lands. These are public lands, and they feel they have a right to be there. The problem is that the Corps of Engineers wants to erect physical barriers below the dams to keep the fishermen out of the area that is just below the dam. The Corps' goal is laudable. The goal is to improve safety, they say. We all support safety, but there are much better solutions than this. Let me give an analogy. When you have a railroad crossing, you do not keep the gate down at the railroad crossing 100 percent of the time. The track is not dangerous if the train is not coming. The water comes through these dams only 20 percent of the time, and the water is not dangerous if the water is not spilling through the dams. So if we kept the gate down at the railroad crossing 100 percent of the time, we would never be able to travel anywhere. That is the same sort of reasoning we have here. From Washington, the Department of the Army is saying they have a policy, which they have had since 1996--which they have never applied on the Cumberland River--that suddenly they have decided, after all these years, they have to close the fishing area 100 percent of the time, even though it might be dangerous only 20 percent of the time. I am not the only one who thinks this is an unreasonable policy. Last week, I went to Old Hickory Dam, near Nashville. About 150 fishermen were there with me on the banks of the Cumberland River. I met with the Corps officials. They turned the water on so I could see it spilling through the dam. Then they turned it off. I met with Ed Carter, the director of the Tennessee Wildlife Resources Agency. I met with Mike Butler, the chief executive of the Tennessee Wildlife Federation. I have talked with the Kentucky wildlife people and this is what they say. They think the Corps' plans to improve safety are so unreasonable that the wildlife agencies will not even help them enforce it. But they say, on the other hand, there are reasonable ways to improve safety; that is, to treat the waters below the dam the way the Tennessee Valley Authority does, for example, which is to erect large signs--some of which already exist at Old Hickory Dam--blow the siren when the water is coming through. You can close the parking lot. You could patrol the area. There are lots of ways to put the gate down, in effect, on these fishing areas 20 percent of the time. That makes a lot of sense, and the local agencies are willing to help do that. Our legislation makes clear that for purposes of this act, installing and maintaining sirens, strobe lights, and signage for alerting the public of hazardous waters shall not be considered a part of the prohibition. It makes no sense to take these public lands and say to people: Well, the lawyers came in and said we need to be careful. Of course we need to be careful; however, being careful does not mean you keep the gate down over the railroad crossing 100 percent of the time, and it doesn't mean you close the area to fishing 100 percent of the time when it is dangerous only 20 percent of the time. I am also concerned about the $2.6 million the Corps needs to transfer from other parts of its budget to put up these physical barriers. Where is the money coming from? I thought we were in the middle of a big sequester, a big budget crunch. I thought we were out of money. One of the areas which has some of the most difficult problems to deal with is the Department of the Army. This is no time to be wasting money building barriers that the wildlife people in Tennessee and Kentucky, whose job it is to encourage boat safety, think are unreasonable. I am doing what the Corps has said needs to be done, which is to provide legislation. I look forward to continuing to work with the Corps of Engineers. My hope is that we can work out a reasonable solution with the wildlife agencies. The county judges on both sides of the border are very involved in this. They see the economic benefit that comes from the large number of people who visit those areas for recreational purposes. They leave their dollars behind. This creates good jobs in Tennessee and Kentucky. Basically, these are public waters. Tennessee and Kentucky fishermen ought to have access to them, and there shouldn't be an edict from Washington that puts the gate down the railroad crossing 100 percent of the time. I am going to do my best to see that doesn't stand. I hope we can work it out, but if we cannot, I am glad to introduce this legislation with Senator McConnell, Senator Corker, and Senator Paul. The same legislation is in the House of Representatives with Congressman Whitfield. I look forward to my meeting Monday with the Assistant Secretary of the Army.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, today I am introducing legislation along with Senator McConnell, Senator Paul, and Senator Corker, to prevent the U.S. Army Corps of Engineers from restricting fishing rights in some of the best fishing areas in the States of Tennessee and Kentucky below 10 dams along the Cumberland River. I have talked with the Corps several times about this. They have told me the only solution is legislation. I am hoping there is some other solution by reasonable compromise. But I am taking the Corps's advice. On Tuesday, Congressman Ed Whitfield, of Kentucky, introduced legislation on this matter, and so I am introducing similar legislation today. I have also drafted language that could be included in an appropriations bill that would prevent the Corps of Engineers from using any funds to restrict fishing in what is called the tailwaters below these 10 Corps of Engineers dams on the Cumberland River. Today I spoke with the Secretary of the Army, John McHugh. I urged him to have the Corps give Congress enough time to consider this matter, perhaps to work out something with the Corps by compromise or, if not, to pass legislation. On Monday, I am meeting with the Assistant Secretary of the Army, Jo- Ellen Darcy, who is in charge of the Corps of Engineers, to ask that the Corps stop taking any further action to build physical barriers along the Cumberland River. Earlier, I met with James DeLapp, the colonel who is the commander of the Nashville District. Then I met, along with Congressman Whitfield and Congressman Cooper of Nashville, TN, with MG Michael Walsh, who is the deputy commanding general. I have had a number of meetings on this subject, and I am determined to get some result, one way or the other. I am delighted to have the Republican leader, Senator McConnell, my colleague, Senator Corker from Tennessee, and Senator Rand Paul of Kentucky as cosponsors on the legislation. One may say, with a large number of problems facing our country--from Iran to the sequester--why is a Senator--in fact, four, and a number of Congressmen interested in fishing? There are 900,000 Tennesseeans who have fishing licenses, and one of my jobs is to represent them. I know and they know these are some of the best fishing areas in our State. This is an area where grandfathers and grandsons and granddaughters go on Saturdays and go during the week. There are lots of Tennesseeans who consider these prize properties and their lands. These are public lands, and they feel they have a right to be there. The problem is that the Corps of Engineers wants to erect physical barriers below the dams to keep the fishermen out of the area that is just below the dam. The Corps' goal is laudable. The goal is to improve safety, they say. We all support safety, but there are much better solutions than this. Let me give an analogy. When you have a railroad crossing, you do not keep the gate down at the railroad crossing 100 percent of the time. The track is not dangerous if the train is not coming. The water comes through these dams only 20 percent of the time, and the water is not dangerous if the water is not spilling through the dams. So if we kept the gate down at the railroad crossing 100 percent of the time, we would never be able to travel anywhere. That is the same sort of reasoning we have here. From Washington, the Department of the Army is saying they have a policy, which they have had since 1996--which they have never applied on the Cumberland River--that suddenly they have decided, after all these years, they have to close the fishing area 100 percent of the time, even though it might be dangerous only 20 percent of the time. I am not the only one who thinks this is an unreasonable policy. Last week, I went to Old Hickory Dam, near Nashville. About 150 fishermen were there with me on the banks of the Cumberland River. I met with the Corps officials. They turned the water on so I could see it spilling through the dam. Then they turned it off. I met with Ed Carter, the director of the Tennessee Wildlife Resources Agency. I met with Mike Butler, the chief executive of the Tennessee Wildlife Federation. I have talked with the Kentucky wildlife people and this is what they say. They think the Corps' plans to improve safety are so unreasonable that the wildlife agencies will not even help them enforce it. But they say, on the other hand, there are reasonable ways to improve safety; that is, to treat the waters below the dam the way the Tennessee Valley Authority does, for example, which is to erect large signs--some of which already exist at Old Hickory Dam--blow the siren when the water is coming through. You can close the parking lot. You could patrol the area. There are lots of ways to put the gate down, in effect, on these fishing areas 20 percent of the time. That makes a lot of sense, and the local agencies are willing to help do that. Our legislation makes clear that for purposes of this act, installing and maintaining sirens, strobe lights, and signage for alerting the public of hazardous waters shall not be considered a part of the prohibition. It makes no sense to take these public lands and say to people: Well, the lawyers came in and said we need to be careful. Of course we need to be careful; however, being careful does not mean you keep the gate down over the railroad crossing 100 percent of the time, and it doesn't mean you close the area to fishing 100 percent of the time when it is dangerous only 20 percent of the time. I am also concerned about the $2.6 million the Corps needs to transfer from other parts of its budget to put up these physical barriers. Where is the money coming from? I thought we were in the middle of a big sequester, a big budget crunch. I thought we were out of money. One of the areas which has some of the most difficult problems to deal with is the Department of the Army. This is no time to be wasting money building barriers that the wildlife people in Tennessee and Kentucky, whose job it is to encourage boat safety, think are unreasonable. I am doing what the Corps has said needs to be done, which is to provide legislation. I look forward to continuing to work with the Corps of Engineers. My hope is that we can work out a reasonable solution with the wildlife agencies. The county judges on both sides of the border are very involved in this. They see the economic benefit that comes from the large number of people who visit those areas for recreational purposes. They leave their dollars behind. This creates good jobs in Tennessee and Kentucky. Basically, these are public waters. Tennessee and Kentucky fishermen ought to have access to them, and there shouldn't be an edict from Washington that puts the gate down the railroad crossing 100 percent of the time. I am going to do my best to see that doesn't stand. I hope we can work it out, but if we cannot, I am glad to introduce this legislation with Senator McConnell, Senator Corker, and Senator Paul. The same legislation is in the House of Representatives with Congressman Whitfield. I look forward to my meeting Monday with the Assistant Secretary of the Army.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I think the Senator from West Virginia is preparing to speak, but I will speak if he is not ready.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, I come to the floor to attempt to clear up some confusion about Senate procedure. The confusion I wish to address is that some observers of the Senate seem to have a hard time telling the difference between a filibuster that is designed to kill the nomination of a Cabinet member or a judge and a motion by the majority leader to cut off debate. Let me say that again--the difference between a filibuster that is designed to prevent the nomination of a Cabinet member or a judge on one hand or a motion by the majority leader of the Senate to cut off debate. There is a big difference. But sometimes I read in the newspapers that Republicans are filibustering, for example, Senator Hagel, as if a majority of Republicans or a majority of the Senate intended to deny the confirmation of Senator Hagel through a filibuster, when, in fact, what most of the Republicans were saying was: The nomination of the former Senator has come to the floor only 2 days ago. We have Senators who have legitimate questions about the nomination, and we wish to have some time to discuss it. In that case, we were forced to have a vote on a motion by the majority leader to cut off debate on Thursday before the recess, even though the Democratic leadership and the White House had been told by Republican Senators--enough of us--if we voted after the recess there would be plenty of votes to make sure the President's nominee had an up-or-down vote, as we have done throughout history in the U.S. Senate. Now, for whatever reason, the majority leader and the White House felt they had to push through a vote and then went into a large complaint that Republicans are filibustering the President's nominee, Republicans are obstructionists of the President's nominee, when all we were doing was doing what Senators historically do, which is ask for a sufficient time to exercise our constitutional duty of advice and consent. Advice and consent is our best known constitutional responsibility. Books have been written about it, movies have been written about it, and speeches have been made about it time after time. If we do not do it, we would be derelict in our duty. So there is a big difference between asking for time to exercise our constitutional duty of advice and consent and using a filibuster to prevent the nomination of a Cabinet member or a judge. I went back through history as best I could. The Congressional Research Service has issued a report on what has happened throughout the Senate's history on Cabinet members and judges. On district judges, according to CRS, no district judge nomination has ever failed to be confirmed because they failed to obtain cloture. Did it take some time? Were questions asked? Yes, of course. That is part of the process. But the fact is, no district court nomination has ever failed to be confirmed because they failed to obtain cloture. So if the majority leader will wait a sufficient amount of time for the minority members to have their questions answered, a district judge in this body today--and we have proved it time and time again--will not be denied his seat because of a 60-vote cloture vote. There will be an up-or-down vote on a district judge. The same is true so far with a Cabinet member. The only exception I have found is when the Democrats, unfortunately, used a cloture vote--a 60-vote requirement--to block the nomination of John Bolton, President Bush's nominee to be U.S. Representative to the United Nations. Some Presidents include that position in the Cabinet; some do not. But aside from that singular incident, which I point out was the Democrats--the Democrats--saying they are going to filibuster a nominee by the President and deny him a seat, so far as I have been able to tell, there has not ever been an instance in the history of the Senate where Republicans have used a filibuster to deny a Cabinet member an up-or-down vote when nominated by a President. That only leaves circuit judge nominees. Up until 2003, so far as I have been able to find, the rule of the Senate was that the President's nominees to be on the Federal courts of appeals always received an up- or-down vote. They were decided by a vote of 51. Then our friends on the Democratic side, when President Bush became President, decided they did not like that and they changed the practice. They began to filibuster President Bush's judges to deny them their seats. I had just arrived in the Senate in 2003. I was very upset by that because I knew some of the nominees. I knew about Miguel Estrada. I knew how Charles Pickering, in Mississippi, had been a pioneer in the civil rights movement when people said he was not. I knew that William Pryor had been a law clerk to the Honorable John Minor Wisdom, the Federal courts of appeals judge for whom I clerked in New Orleans. I knew these were good people. They just happen to be conservative. They just happen to be Republicans. So our friends on the other side of the aisle said: We are going to filibuster and kill those nominees. There were three others: Priscilla Owen, Carolyn Kuhl, Janice Brown. All the cloture votes failed. There was no final vote. And then there were four more in 2004. So there were 10 altogether. Democrats for the first time filibustered to kill 10 of President Bush's judges. That produced a reaction. That produced Republicans who said: OK, we are going to change the rules of the Senate. We are going to make this a majoritarian institution. We are going to decide these questions by 51 votes. Well, cooler heads prevailed and we adopted a consensus that only in extraordinary cases would Federal appellate court judges be denied their seat by a cloture vote, by a 60-vote margin. In every other case, it would be 51 votes. Based on the research I have been able to make, only two of President Obama's circuit court nominees have failed to obtain cloture and were not confirmed, and those are Caitlin Halligan and Goodwin Liu. So the bottom line of history is, no district judge has ever been denied his seat or her seat by a filibuster. No Cabinet member--with the exception of John Bolton by the Democrats, if you want to count that--has been denied his or her seat by a filibuster. As far as circuit court nominations go, the score is 10 to 2. The Democrats have filibustered to death 10 of President Bush's nominees, and Republicans, in return, have filibustered 2. I think that is an unfortunate precedent. I would like for the Senate to go back to where it was when even a nominee such as Clarence Thomas for the Supreme Court of the United States was decided by a majority vote. In addition to that, of course, there is the question of: Do we filibuster legislation? The answer is yes, we do. And sometimes we do on either side to kill a bill. If a bill comes over here to abolish the secret ballot in union elections, I imagine Republicans will do their best to kill the bill with a 60-vote margin. Democrats would do the same with a right-to-work provision if Republicans were in charge. That has happened throughout history. And with lesser nominations that has happened. If a National Labor Relations Board nominee is controversial, there might be a 60-vote requirement--even with a nomination to the Tennessee Valley Authority. I remember when the distinguished majority leader held up President Bush's TVA nominees because he thought the President should have appointed Democrats instead of Republicans. I pointed out to him that the law did not say he had to do that. But the majority leader said, well, he was going to hold them up anyway. I could not get him to stop doing that until I held up somebody he wanted from Nevada. So this has gone on throughout history with lesser nominees. It is a part of the advice and consent of the Senate. It is a way we gather information. It is a way we make a point. It is a way we sometimes get something in exchange. It is a power that an individual Senator has. As with all the powers we have, it should be exercised with restraint. If all 100 of us exercised all the privileges we have at any given time, nothing would happen. Let me conclude by remaking my first point. Advice and consent is the best known responsibility of this Senate. It is a constitutional duty. We exercise it diligently. It often involves some delay. It often involves asking for more time to consider someone, getting information that was not easily gotten before. Every Senator knows that the time to ask a nominee about an issue is before that nominee is confirmed. They are able to talk about something, it seems, easily. Their appointments are not hard to get. So that is a part of what we do every day. But I hope the observers of the Senate will make a distinction in the future between the majority leader's effort to cut off debate and the minority's intention to kill a nominee with a filibuster. Because we do not do it with district judges--never have. We do not do it with Cabinet members--never have. We have done it twice on the Republican side with circuit court judges; Democrats have done it 10 times--both unfortunate precedents, I think. But with Cabinet members and district judges, that is the record. So there is a difference. There is a difference between asking for a reasonable amount of time to debate and exercise advice and consent and a filibuster with the intention of preventing the nomination entirely, finally, of a judge or a Cabinet member. I thank the Presiding Officer and yield the floor.

Mr. ALEXANDER

Mr. ALEXANDER. I thank the Senator from Arizona. Probably the best known function of the Senate--constitutional responsibility--is the right of advise and consent. We take it very seriously. Here that means we have to consider what happens. The Armed Services Committee, upon which I do not have a chance to serve, completed its consideration of Senator Hagel's nomination 2 days ago. Now it is before the whole body. He is the President's appointee. The President has a right to appoint people in whom he has confidence. But we have a constitutional responsibility to consider the nominee. A number of Republican Senators have questions, including the Senator from Arizona, the Senator from South Carolina, that they would like to have answered. I think they are entitled to that. I think if the shoe were on the other foot and it were a Republican President making a nomination, Democratic Senators would say the same thing: Give us a reasonable amount of time to consider this nomination on the floor of the Senate. I have a little experience in that myself. The first President Bush nominated me to be U.S. Education Secretary about 20 years ago. I thought I was a fairly noncontroversial nominee, much less important than the Secretary of Defense. But I remember very well, it was 87 days between the time the President announced my nomination and the day on which the Senate unanimously confirmed me. There was, at the time, a Senator from Ohio named Metzenbaum, who for whatever reason decided the Senate needed more delay to consider my record and my background. There is nothing new about this. I would respectfully suggest that the majority leader's motion to cut off debate on Senator Hagel, made 2 days after his nomination comes to the floor of the Senate, is premature. Republican Senators have questions they would like to have answered. I think they are entitled to do that. When we come back from recess, 10 days from now, I think that is sufficient time to consider those questions. I will vote for cloture so we can have an up-or-down vote on the President's nominee for the Secretary of Defense. I think the President is entitled to that but not prematurely. I thank the Senator from Arizona for yielding time.

Mr. ALEXANDER

Mr. ALEXANDER. Mr. President, with all due respect to the majority leader, this was an unnecessary vote today. The majority leader said: What is a filibuster? I can remember one that wasn't called a filibuster. I can remember when President Bush the first nominated a very noncontroversial University of Tennessee president who had been Governor to be the Secretary of Education of the United States about 20 years ago. There was a Democratic Senate at the time, and the Senator from Ohio decided he wanted more time to study the qualifications of the nominee from Tennessee. I was that nominee. I thought that was an extraordinary period of time. It was 87 days between the time President Bush announced my nomination and the time the Senate unanimously confirmed me. That was a Cabinet position. I went around to see Senator Warren Rudman to see what I should do. He said: You don't have any cards. You don't do anything. The Senate has the right to consider, with its constitutional prerogative of advice and consent, the nominees of the President. That is what the Senate is there for. I said: Warren, how did you get to be a Senator? He said: Well, I will tell you a story. President Ford nominated me in 1976 to be on--I believe it was the Federal Communications Commission. The Senator from New Hampshire, a Democratic Senator and a Democratic Senate, put a hold on Warren Rudman until Warren Rudman withdrew his nomination. The end of the story was that Warren Rudman then ran against that Senator, beat him, and that is how Warren Rudman became a Senator. We know what a filibuster is. A filibuster is when one side or the other--which it has a perfect right to do under our system of government--decides to try to kill a nomination by denying 60 votes or to stop legislation by 60 votes. The Democrats have done it on a regular basis when they were in the minority and the distinguished majority leader was one of the most effective persons in the Senate to do so. I presided many times over the Senate when he objected. I remember when we were trying to get 60 votes to have a permanent change in the estate law, and we would get up to 57, 58 or 59 and the distinguished majority leader would object. What are we doing today? We are doing today exactly what was said when the vote was called. The question was do 60 of us believe it is time to end debate on the nomination of the President to be Secretary of Defense, the leader of the largest military organization in the world, the largest employer in the United States. The Senate Armed Services Committee has reported that recommendation to the Senate 2 days ago--not 10 days ago, not 15 days ago, not 30 days ago, 2 days ago. Most of us aren't on the Armed Services Committee. Are we not entitled, are we not entitled to have more than 2 days to consider one of the most important nominations the President has to make without having the distinguished majority leader accuse us of a filibuster? What we do in this body is debate. We debate issues. In addition to that, there are a number of people on the Republican side who have asked for information for which they haven't received answers yet. In every one of those cases, those are not requests I am interested in. They will not produce answers I need to know. They may be outside the range of questions I think ought to be answered. After only 2 days of a nomination being on the floor, if Republican Senators have questions to ask and information to seek, they ought to be allowed to do that. That is what this is about. What we have said--and the Democratic leadership knows this--we have talked in good faith through the morning. We have suggested to have this debate when we come back. Instead of 2 days after the bill was reported to the committee or to the Senate floor, it would be 2 days plus 10--a couple weeks. It would give us a chance to read the hearings, consider the evidence, ask our questions. There were three Senators who came down to the floor today, including the Senator from Arizona and the Senator from South Carolina, who said then we will be ready to vote for cloture. In other words, we will be ready to vote to end debate to do what the Senate should do. Eventually, after a full consideration, we would have an up-or-down vote on a President's nominee for the Cabinet. At least that is my belief, that eventually you should have a an up-or-down vote on the President's nominee for the Cabinet. It is an unfortunate vote, and it is unfortunate to characterize this as a filibuster. This is a vote by Republicans to say we want more than 2 days after this nomination comes to the floor to carefully consider it because we have questions. Many have questions, and then most of us believe that after a sufficient time--and, for me, a sufficient time will probably be those 10 days--after those 10 days, it will be time to end debate. It will be time to have a vote and then it will be time to move on to something else. I wish to make sure this is properly characterized. This was a motion to close off debate after 2 days of bringing to the full Senate the President's nomination to lead the largest military organization in the world at a time when Senators had reasonable questions for which they want answers. A vote to extend that until 10 days from now or some other appropriate time after that not only is reasonable, it is in the traditions of the Senate. Such reasonableness has been exercised by Democrats, as well as Republicans throughout the history of the Senate. Mr. President, 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

Mr. ALEXANDER. Madam President, I am expecting the Senator from Louisiana, whom I had planned to follow, but since he is not here yet I will go ahead with my remarks unless he walks in the door just now, and then he can follow me. We are both speaking today about selective enforcement of the law as it relates to the Department of Justice enforcing the law against certain types of energy producers but not other types of energy producers. Senator Vitter from Louisiana will talk about a letter he and I will be sending to the Attorney General of the United States asking why he does it. I see Senator Vitter coming in just now, so now that I have given him a preamble and a warm-up of about 2 minutes, I think I will sit down and listen to what he has to say, and then I will add my comments to his when he finishes.

Mr. ALEXANDER. Madam President, I am here to join with and congratulate the Senator from Louisiana for his leadership on this issue. These are important matters for a couple of reasons. One is, as the Senator from Louisiana said, the rule of law is one of the fundamental principles of the American character. We expect laws to be enforced evenly, whether it is a little law or whether it is a big law. Obviously, here, the Department of Justice is enforcing a law against oil and gas companies but not against wind companies. It is the same law; it should be applied in the same way. The second is the matter of birds. Someone might say: Why would Senators take the time to talk about birds? I am reading one of President Teddy Roosevelt's books. This is about his African game hunt after he was President of the United States. He wrote a lot of books, and he was a great President. All of us concede that. We remember him for many things, but if we read carefully Teddy Roosevelt's biography, his entry into political life was because of his concern for birds. He was a bird man. He protected birds. He captured them and brought them to various museums of America to serve as exhibits. He helped enact the laws that protect birds. In one of the biographies of Teddy Roosevelt I read, the author pointed out that the single largest spectator sport in the United States is not football, it is not NASCAR, it is bird watching. I am not much of a bird watcher, but these laws are important for that reason as well. The Senator has spoken very specifically and clearly about what is going on here. We have the Migratory Bird Treaty Act, almost 100 years old. A person can go to jail if they violate the Migratory Bird Treaty Act. Then there is the Bald and Golden Eagle Act. That protects one of our national symbols. A person can go to jail for that too, and be fined $100,000 and imprisonment of 1 year for killing bald eagles and golden eagles. The letter Senator Vitter and I sent today to the Attorney General asks: If you are enforcing that law against one kind of energy company, why aren't you enforcing it against another kind of energy company? Or if you think you are not going to enforce the law--and sometimes this administration just decides that it will not enforce the law--then at least enforce the law in an evenhanded way. The Senator from Louisiana mentioned the energy farm in southeastern Minnesota that has applied for a permit that will allow the wind farm to kill the protected bald eagles. Basically, what is happening here is the wind farm is applying for a federal hunting license to kill eagles, and the U.S. Government is considering granting a hunting license to a wind farm to kill these protected bald eagles. How does that fit with an evenhanded system of justice, equal treatment of the law? ExxonMobil, in 2009, pled guilty to killing 85 birds that had come into contact with crude oil. Exxon paid $600,000 in fines and fees. PacifiCorp in Oregon paid $1.4 million in fines for killing over 200 eagles in Wyoming. Yet a wind farm in Minnesota is applying for a hunting license to put up Cuisinarts in the sky to kill protected eagles. That is not evenhanded. It is no excuse to say, well, cats kill birds, windows kill birds, other things kill birds. That may be, but we have Federal laws against those who set out and set up machines that deliberately kill birds. We need to have a rational policy for treating all energy companies the same. So that is our discussion today. We believe it is important. The head of the Audubon Society in Los Angeles says the threat to golden eagles by wind farms has the potential to wipe this large, long-lived species out of the sky. I think all of us know these are not our grandmothers' windmills. These are giant turbines that are three times as tall as the sky boxes at one of the most recognizable features in Tennessee, which is the University of Tennessee football stadium. These are huge monstrosities, and they have many detriments to the environment. They destroy viewscapes, they are noisy, and we can see their flashing lights for miles. We don't want to see them on the scenic mountains of east Tennessee where people come to see the Great Smoky Mountains--not to see these big white towers. In their enthusiasm for wind power as a solution to our electricity needs in the United States, I am afraid the administration is destroying the environment in the name of saving the environment and producing at the same time a type of electricity that is intermittent, that only operates when the wind blows, is expensive, and has huge subsidies from the Federal taxpayer that would make any tax subsidy for oil companies look small by comparison. Let's put all the questions about wind power to one side except this one: Why is the U.S. Department of Justice enforcing the migratory bird laws against one set of energy producers--oil and gas--and not against another--wind farms? That is what Senator Vitter and I would like to know. That is why we are sending the letter today. I ask unanimous consent to have printed in the Record two articles: one from the Wall Street Journal and one other article from the Los Angeles Times about the effect of wind farms on protected birds.

Mr. ALEXANDER

Mr. ALEXANDER. Madam President, last Friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia issued a decision that basically said the era of recess appointments is over. The three-judge court unanimously ruled that President Obama, on January 4, 2012, made three recess appointments which were unconstitutional, and, therefore, said the court, these three individuals--one who is already gone from the NLRB--so two NLRB individuals who were in the case that was before this court hold their seats unconstitutionally. The Chairman of the National Labor Relations Board nevertheless said, in effect, that the NLRB is open for business. I respectfully suggest that a different sign should go up--``help wanted; nominations needed''--and that the two NLRB members whose recess appointments were unconstitutional should leave the NLRB because the decisions in which they participated--and there were 219 of them--cannot be valid if they are challenged, just as this 1 decision was vacated, because since they were unconstitutionally there, the NLRB did not have a quorum, and therefore, when those decisions are challenged, under the ruling of this court, those decisions cannot stand. They are important decisions. As the Senator from Wyoming undoubtedly will mention more about, they involved some controversial issues. Several observers have said the court's decision is broad. In fact, it is a breathtaking decision. It is a bold decision. But by all standards, it seems to be the correct decision. This is why I say that if you take an American history book in one hand and the U.S. Constitution in the other and you read them both at the same time, you see that the Constitution, which was ratified a long time ago--before 1800--has in it article II, section 2, which says that the President may make nominations of a number of people, such as soon-to-be Secretary of State Kerry, who was confirmed yesterday--a number of people--but that those nominations require the advice and consent of the Senate. We have done some work here in the Senate over the last 2 years, and we have improved the nomination process. We have eliminated a number of the nominations that are subject to advice and consent. We have made it easier for people to move through, and we have expedited a large number of those. For example, 273 of the 1,100 nominations that require advice and consent can be sent right to the desk by the President, and if a single Senator does not want it to go through the entire process, after the relevant committee gets all the relevant information, the majority leader can just move, after 10 days, to confirm that person. But if it is a Secretary of State or if it is a Secretary of Defense or if it is a member of the National Labor Relations Board, the Senate has a constitutional responsibility to consider those nominees. I would suspect that the advice and consent role of the Senate is probably our best known power. It is the title of a book that Allen Drury wrote that came out, I think, in the late 1950s. Most Americans know about the advice and consent role of the Senate, and they know why we have it. We have it because our Founders put their necks on the line in a revolution against a King, and they did not want an imperial Presidency. So they put into place a system of checks and balances, which is being exercised this very moment because of the courts saying that the President's use of the--I ask unanimous consent for another 3 minutes, please.