Michael Enzi

Mr. ENZI

Mr. ENZI. Mr. President, I thank the Senator from Maryland, Ms. Mikulski, for her passion and understanding and intense work on this particular bill. Of course, she extends her passion and intense work on any bill she is involved in. I am so pleased this bill has gone to committee and has had the time for the committee to work on it. We have a very bipartisan approach on the bill and a very reasonable way to do it. I rise to support S. 3187, the Food and Drug Administration Safety and Innovation Act of 2012, and I appreciate Senator Mikulski making the opening statement. This bill will reauthorize FDA's drug and medical device user fee programs, authorize new user fees for generic drugs and biosimilars, and make a small number of targeted bipartisan policy reforms at the same time. This legislation represents over a full year of work by the HELP Committee. Fridays have been dedicated to coming up with solutions on this for over a year, and it has paid off. It reflects the information we have learned from hundreds of meetings with patients, with advocates, with stakeholders, with outside experts, and with the FDA. More importantly, it reflects both the ideas and the feedback we have gotten from every member of the HELP Committee and a lot of people outside the HELP Committee. The HELP Committee approved this bill by a voice vote on April 25 and reported the bill out of committee on May 7. This bill will make important changes to how FDA does business. Thanks to the efforts of Senators Burr and Coburn, the bill now includes new requirements that will make FDA more accountable and transparent. A fundamental principle of effective management is that one has to be able to measure performance if one wants to improve it. The ideas of Senators Burr and Coburn will help provide those measurements and, as a result, Americans are going to get better access to safe, innovative medical devices and medicines. The bill will also modernize how the FDA inspects foreign facilities to better account for the global nature of drug manufacturing. It will allow FDA to prioritize and target riskier oversized facilities, which will help prevent the recurrence of the problems with drugs such as heparin. It will also improve how FDA regulates medical devices. For the past several years, FDA premarket review of medical devices has involved significant delay and unpredictability. This has threatened American manufacturing jobs which have started to migrate overseas because of the unfavorable regulatory environment here in the United States. It has also threatened patient access to new therapies. I believe this bill will reverse those trends. The bill reflects the concerns I have heard in my meetings with committee members regarding the current shortages of vital and lifesaving drugs. Senators Blumenthal, Roberts, Casey, Alexander, Bennet, and Hatch should be thanked for all the work they put into the drug shortage proposal. The new notification and coordination requirements are important steps that will help prevent future drug shortages. The bill also enjoys broad support. We have received numerous letters of support from industry, patient groups, consumer groups, and a whole raft of other stakeholders. We also worked to guarantee that any mandatory spending generated by the bill would be fully offset. Over the past several weeks, we have developed offsets to pay for those provisions that produce mandatory spending. As a matter of fact, according to the Congressional Budget Office, this bill will reduce the Federal deficit. Chairman Harkin and I have worked very hard to make this bill as bipartisan and uncontroversial as possible. We tried to avoid controversy because we understand this bill needs to get done. If we don't reauthorize the drug and device user fee programs before they expire this fall, the FDA will be forced to lay off 2,000 to 4,000 key employees. This will cause FDA's review of new drugs and devices to grind to a halt. This, in turn, will threaten biomedical industry jobs, patient access to new medical therapies, and America's global leadership in biomedical innovation. We are talking about 4 million jobs overall and 2,000 to 4,000 that will have to be chopped off because the money runs out when this bill expires, the previous bill expires, so it is critical that we get that done. Another important thing with those 2,000 to 4,000 people who will have to be laid off at FDA is those are key technicians, scientists, informed people who have been working on this for a long time. If we lose this, they will still have jobs, it just will not be where we can get drugs on the market faster, devices on the market faster, generic drugs out faster, and all of the other things this bill covers. So in conclusion, I would like to thank Chairman Harkin and all the other members of the HELP Committee, FDA, industry, and many other groups for working with us on this important legislation. I particularly want to point out the cooperation Senator Harkin has provided, the leadership he has provided on the bill, and the way his staff members and mine have worked together for at least a year in regular meetings with all members of the committee. So I think a lot of the controversy that could come up with a bill like this has been taken care of. I am hoping it has so we can get this done expeditiously. I thank the Chair and yield the floor.

Mr. ENZI

Mr. ENZI. Mr. President, I thank the chairman for his remarks and wish to be associated with them. It has been a very bipartisan process that has resulted in this bill coming to the floor, and I am hoping there will only be relevant amendments and that there will be few of those. Every amendment has the potential for disrupting the entire bill. This has been a very inclusive process that has led to this legislation. Over a year ago staff began to meet with stakeholders on the policy issues that are addressed in S. 3187. Starting in the spring of 2011, staff from Republican and Democratic offices on the Health, Education, Labor and Pensions Committee began a series of standing meetings. The groups proceeded to meet every week for several months. They met with stakeholders and discussed policy solutions that each member thought would solve the problem. After much discussion of the benefits, costs, and possible unintended consequences, members agreed to a list of policy concepts. If it was not a consensus on a particular policy, then it was not included. The chairman mentioned the importance of consensus, and that is what we worked on. As this process progressed, my staff met with the Republican staff on the HELP Committee for at least 2 hours every week to keep them informed of everything that was happening. I personally met with the members of the committee before the markup to make sure I understood their priorities. No one office got the entirety of what they wanted. However, we did find the 80 percent of each solution we could all agree could help solve whatever policy the group was working on. What we see before us now is the outcome of the hard work of these groups. The bill passed the committee by a voice vote. The bill reflects the work of every member of the Health, Education, Labor, and Pensions Committee. All of them have at least one provision included in this legislation, and many members of the committee worked with us to find consensus measures that addressed their priorities as well. This legislation is a model for how the process can and should work no matter what the political environment. This went to committee, it was worked in committee, it is now at the Senate floor, and I hope my colleagues will join me in supporting this truly bipartisan provision that reduces the debt and ensures that the United States will maintain its leadership in the innovation of safe and effective biomedical product. I yield the floor.

Mr. ENZI

Mr. ENZI. Mr. President, I thank the ranking member of the committee for all of his work on this issue and the suggestions he has as to the importance of what we are doing today. I rise today to discuss our Nation's budget situation and the budget proposals we will vote on later today. While I am pleased that my colleagues have put forth a number of good ideas, this debate is long overdue. The Congressional Budget Act sets a statutory deadline of April 1 for the Senate Budget Committee to report a budget resolution and a deadline of April 15 for completion of a congressional budget. Despite these statutory deadlines, it has been more than 3 years since the Senate passed a budget, and the majority party once again refuses to debate this important topic through the normal budget process. We did not mark up a budget in the Senate Budget Committee, and we have not been given the opportunity to offer amendments to any of the budgets that are before us on the Senate floor. That is disappointing. With a national debt approaching $16 trillion, and it is hard for me to even say $16 trillion--I saw a kid with a t-shirt that said, ``Please don't tell him what comes after $1 trillion.'' With $16 trillion in debt, we cannot afford to continue operating without a budget that is a blueprint to put the country on a sustainable path in both the short term as well as the long term, and we better be looking at that long term as well. We cannot continue to simply spend money we don't have without a plan to get our spending under control. We are so bad on spending that we are taking 10 years' worth of revenue to pay for 2 years' worth of projects, and those are projects that will continue after that. I don't know what we do after the 2 years. How far out can we borrow money that may not even come in because it might not even be budgeted? A budget is supposed to do just that--it is supposed to put spending under control. But instead, for the third year in a row, it looks as if the Senate majority will refuse to pass a plan to help fix the fiscal crisis we face. In the 3 years since the Senate majority passed a budget, our country has spent approximately $10.4 trillion. We have accumulated around $4.5 trillion in gross debt, which translates to an additional $15,000 for every man, woman, and child--$15,000 for every man, woman, and child-- which brings it up to about $49,000 total for every man, woman, and child. Since we last adopted a budget, we have spent more than $626 billion on net interest payments to service the debt alone. These are unsustainable levels of spending. Yet the majority continues to ignore the problem and refuses to take these numbers seriously and consider, much less pass, a budget. The majority argues that we have a budget in place because of the passage of the Budget Control Act, which also governed our spending in fiscal year 2011. But if that truly governed what we are doing, why did the President even submit a budget to us? If that was the budget, he shouldn't have gone to all the effort to put his own budget together. But he felt he needed to put a budget together. In fiscal year 2011, the government brought in slightly more than $2.3 trillion in revenue. At the same time we collected $2.3 trillion, we spent $3.6 trillion. In other words, we overspent by $1.3 trillion. That is more than 50 percent of the revenue we were expecting. We are on pace for another $1 trillion deficit this year. The Budget Control Act may include some spending limits, but with record trillion-dollar deficits, the Budget Control Act cannot replace an actual budget that puts in place long-term spending cuts and helps get our country back on the path to balance. Again, if that Budget Control Act really took care of everything, the President would not have needed to submit a budget. He did. I applaud the President for appointing a deficit commission. We tried to pass that as a bill. It came close, but it didn't make it. He saw there was a need, and he appointed a commission. The commission was cochaired by Erskine Bowles and Senator Alan Simpson. They painted a pretty bleak picture for our country. More than a year and a half has gone by since they painted that bleak picture, and it has gotten worse, not better. I really expected at the State of the Union that year that the President would have painted the same bleak picture he had been handed by the deficit commission. It was scary. It is now scarier. But he didn't. Instead, he gave us another stimulus budget. I think if he had painted the bleak picture in the State of the Union that was handed to him by the deficit commission, if he had painted that same picture and not placed a solution out there but painted the picture so America would understand where we are with the debt and the deficit--if he had done that, he could have come out with a budget that was parallel to what Simpson-Bowles had, and I think we would have had a solution over a year ago. We have a nearly $16 trillion debt that keeps growing. It is unaffordable, and we need to make a change. What will happen if we don't act and if we don't cut spending? We won't be able to afford the military we need. People will have drastically reduced Social Security checks. Roads won't be fixed. All of our money will go toward paying interest on the debt. People shouldn't doubt that this is real. There were riots in the streets in Greece when their government was forced to deal with the realities of debt. In the United States, we owe $49,000 for every man, woman, and child. In Greece, they only owe $39,000 and had to make drastic cuts, and they had riots in the streets. Now they have stepped back with the recent elections and are trying to turn away from the reality of their debt. Does that sound familiar? I have news for my colleagues. Our debt per person, as I mentioned, is more than Greece's debt per person. It is more than Italy's debt per person. In fact, the United States owes more than all of the Euro countries and the United Kingdom put together. My Republican colleagues and I have put forth a series of budgets that would help to improve the fiscal situation. I drafted legislation that would reduce spending by 1 percent per year until we reach balance. By reducing spending by 1 percent, we can achieve balance by fiscal year 2017. That is a 1-percent reduction per year to 2017, and most of the people I have talked to--and I have talked to a lot of people in Wyoming and some other places around the country--have said 1 percent is not bad. One percent is definitely not bad if we compare it to the possibility of a 19-percent cut when we step off the cliff. The House of Representatives passed a budget last year that cut spending by $5.8 trillion. This year the House passed a second budget that would reduce the deficit by $4.4 trillion, in comparison to the President's budget over the next decade, which does nothing to improve the short- or long-term economic outlook of the country. In fact, President Obama's budget would make things worse. Senator Toomey has put together a detailed budget plan that would balance the budget within 8 years. It would enact corporate tax reform, and it would adopt important changes to the entitlement programs that are the drivers of the Nation's unsustainable debt. Senator Paul has put forth a budget that would balance within 5 years. Of course, it eliminates four departments and reduces spending by $8 trillion over the next 10 years. It seems radical, but we are facing a cliff, and he is willing to put a budget out there. Senator Lee has also introduced a budget that balances our budget by fiscal year 2017 by cutting spending by $7.1 trillion over the next 10 years, and it, too, reforms Medicare and Social Security. Why do we have to reform Medicare? Well, in the health care reform bill we took $\1/2\ trillion out of Medicare. It was already going broke but, don't worry, we put in a special panel that will tell where cuts can come from each and every year, and if we don't suggest different cuts, those go into effect without a vote of the U.S. Senate. The only places they can cut are doctors, hospitals, nursing homes, home health care, and other providers. If you do not have a doctor, I do not think you have much medical care. There are going to have to be reforms in Medicare. We have already forced that. For Social Security, there are not as many people working now as will soon be on Social Security, and that creates problems. I do not agree with everything that is included in these budgets I have mentioned, but I want to commend my Republican colleagues for making tough choices and putting forth solutions. While they have been doing that, President Obama and the Senate majority have ignored the problem and refused to acknowledge the need to cut spending. They have demonized Republicans and suggested it is our intention to harm seniors, poor people, and children. One advertisement showed a picture of House Budget Chairman Ryan pushing an elderly woman off a cliff. That kind of rhetoric does not help anything, that rhetoric is over the top, while their solutions have been nonexistent. Last year, President Obama's budget was such an empty proposal that it failed by a vote of 0 to 97 in the Senate. In the House this year, his latest budget failed by a vote of 0 to 414. I suspect it may face the same fate when it is considered later today--the same one they voted on. Not a single Member of either party was willing to support the President's budget proposal. How is that for leadership? In some of the countries that have a parliamentary form of government, they have heard about these votes and are terribly shocked because in their country it would call for a special election and a new Prime Minister. We will be voting on five budgets later today--four from Republican Members and President Obama's budget. Absent from the discussion is a budget produced by the Senate majority that is shirking their responsibility to govern. We are in too serious a situation to continue ignoring the budget problems we face. At a time when the national debt breaks down to more than $49,000 for every person in Wyoming and across this country, we cannot afford to continue business as usual. We cannot continue punting the tough decisions simply because the tough decisions might impact our reelection campaigns. The decisions that are painful today will be even more painful in the future. We talk about pay-fors here when people want to do a new program or continue an old program with additional expenses, but we better start including the debt. Our debt is greater than the value of everything we produce in this country in a year. That is the gross national product. The debt is greater than the gross national product. There are a lot of stories about what happens when your debt gets greater than the gross national product, and none of them is good. I have heard from a lot of people in Wyoming about the national debt and the lack of a budget for more than 3 years. While they have differing viewpoints on the best solution, they have one common message: Do something. Do something, and do it as soon as possible. I am concerned that, after votes, we will end up in the same place we started--without a budget and without a fiscal plan to get our Nation's debt and deficit in check. I do not know about you, but it is keeping me up nights. Some of my colleagues have offered plans to make that happen. Those who control the Senate appear content to sit on the sidelines and criticize. While that happens, we continue to add trillions of dollars to our national debt. I would encourage my colleagues on the other side of the aisle to think about what that means to future generations and join us in finding a plan to fix our fiscal woes. I know that is what they are thinking about because I have been in meetings off of the Hill where they have talked about this same thing. But we have to solve it; we cannot just talk about it. We cannot give it lip service when we are off of the floor and excuse it when we are on the floor. I yield the floor.

Mr. ENZI. Mr. President, I was both surprised and disappointed. I thought he had a unique opportunity, and it had been handed to him on a platter that he designed. He appointed these people, and they put a lot of hours into it, including the Senator from North Dakota, who is here on the floor, and came up with a plan. It was not a pleasant plan by anybody's imagination. It was an important plan by everybody's--well, evidently not everybody or we would have adopted it by now. But it had some critical things in there that should be taken care of, that should be considered in a budget, and should have leadership coming from the White House. That is where leadership on budgets happens. I remember being in the Wyoming legislature. We have a requirement that you have to balance the budget each and every year, and we do that. If you find out there is going to be a deficit before the legislature meets--and they only meet for 20 days in the budget year-- if you know about it before that time, then the legislature has to make those cuts. One of the things I noted was when we made the cuts, the people in the administration picked out something that was painful and made that cut so the constituents out there would say: Oh, that really hurt. Those stupid legislators picked the wrong things. Well, it was not the legislators who picked the wrong things. It was the people in charge of each of those trying to make sure the legislature felt pain. If that deficit is noted outside of the time of the few days that the legislature meets, then the Governor has to make the cuts. Virtually everybody in the administration worked for the Governor. So when he made the cuts, they took the priorities and they chopped off the lowest priorities, so it was not noticeable around the State, and it works out well. That is leadership. That is tough leadership because the Governor does not like to have to be the one who is held up for all the scrutiny of what is spent. That is what the President has to do. That is the President's job, to get this budget back in balance. There are some examples around the world where, when they put the budget on a path to balancing, the economy comes up.

Mr. ENZI. That gives people a little bit of confidence of what can happen. Right now, there is not a lot of confidence around this country, so the economy is dropping. But a good budget, that follows a plan, that gets us in fiscal stability, would make a huge difference for this country and stimulate business.

Mr. ENZI

Mr. ENZI. Mr. President, first, I ask unanimous consent that immediately following my remarks, Senator Udall of New Mexico be recognized to speak.

Mr. ENZI. Mr. President, I have been listening to these speeches for the last couple of days--3 days, actually. If one listens to the other side of the aisle, one would think Republicans are against college education. I don't think there is a person in America who believes that. One would also believe we want to raise the interest rates from 3.4 percent to 6.8 percent. There shouldn't be anybody in America who believes that either. We really think that for 1 year the rates on subsidized Stafford loans ought to stay at the 3.4 percent, and maybe beyond that. The real issue isn't the interest rate, and we can tell that from the speeches that have been given. The real issue is the cost of college. Are we doing anything about the cost of college? No. Does Congress have anything to do besides debate this particular issue? Evidently not. We are being called a do-nothing Congress, but evidently we don't have anything else to do. It could be possible to go to something else, but instead we have had one vote on this, and we still weren't given an option for this side of the aisle to have a vote on our idea. So now we are going to get to vote on that same issue from Tuesday once again-- maybe sometime this week or maybe not until next week. Instead, we are going to stay right on this issue so that if we stay at exactly this point in this issue, it will fail again and then that side can say: Oh, those Republicans just want to raise interest rates. Not true. I hope the American people have noticed that any bill that goes directly from the President to Harry Reid to the floor doesn't pass. A bill that goes to committee, regardless of where the source is, has a chance of a bipartisan solution. I am the ranking member on the Health, Education, Labor, and Pensions Committee, and we have a user fee bill that passed nearly unanimously out of committee. We have the support of the stakeholders. We have the support of the companies. We have the support of Senate Republicans and Democrats. We have even talked to the House people about it. It is a bill that ought to make it through here pretty quickly, and I suspect it will. When it does, I bet we don't hear any comment about it because that would make us look like a do-something Congress, which is what we ought to be. My colleagues can't tell me this is the only issue that needs attention. Yet we are going to spend a whole week on this issue when both sides agree it ought to be at 3.4 percent. What we are disagreeing on is how we will pay for it. I have to tell my colleagues that the real answer isn't either side's answer, but it could be worked out if it went to committee. I was told this was going to be a bipartisan, jointly discussed issue just before we left for the recess. Then this bill was put forward, and no further conversation was allowed on it. Our committee was left out of it. And we bring it to the floor, and they said we will have a fair and open debate. Yes, look at this--there are two of us on the floor, and he is waiting to speak and he is not listening to what I am saying, and there isn't anybody else listening to what I am saying. Well, they might be back watching the television and picking it up there, and I certainly hope they are. Where we get the real discussion is in the committees. Small groups of people who are intensely interested in the issues come to those committees and we work it out. Senator Harkin and I will get amendments a couple of days before the bill is to be marked up in committee to find out what everybody's ideas are for how it ought to be changed, and we sit down and we look through those and we say: Well, look at this pile here. They are all pretty much the same amendment, but there are people from both sides of the aisle who are interested in it, so why don't we just get those four people or those two people or those five people together and see if they can't work something out. It is really surprising because they usually can come up with a few changed words that solve the problem in which they are interested. That is the way we get things done. That is not the way we are operating on the floor. I am on the Finance Committee. The Finance Committee is supposed to be handling taxes. Let's see. How many markups have we had this year? I don't think we have had a single markup. We have not looked at a specific bill and tried to come up with a solution in committee. Nothing has been assigned to that committee to finish. Do we think we have any tax problems in this country? I think so. We keep talking about tax reform, but we are not doing anything on tax reform. Instead, we are talking about the interest rate on college student loans. It is extremely important to the 40 percent of the students who have a subsidized loan who are going to be protected by this. It is extremely important to them. We keep talking about college and the cost of college, but are we doing anything about the cost of college? No, we are not. That should be disappointing to America. We ought to be covering the big issues. Our committee did a bunch of hearings, and I asked for those hearings to be on the cost of all college education. Instead, what we did was beat up on private for-profit colleges. We did hearing after hearing after hearing, and some of those were a little suspect because I know at least one of the witnesses called in to testify fell short in the market and was able to run down the colleges and thus make a lot of money off of his testimony. That is not how it is supposed to work. We could have looked at all college costs and found some ways to drive down the price of college, but we didn't do that. So now we are standing here and saying: Those darned Republicans aren't interested in the cost of college. How wrong can you be? We started this debate on Monday, we voted on it on Tuesday, and then we decided we would reconsider the vote. That means the pollsters said that this is a pretty good issue for that side of the aisle, and if they can drag it out longer, they can do better. That is not what Congress is about. Congress is about solving problems. There are two sides to this, and in the debate earlier, I said that if we would just allow a side-by-side so that you get a vote and we get a vote, we could get something done and move on. The Senator from Iowa, Mr. Harkin, said: I would let us do a side-by-side. The next thing I know, the media is saying: You were offered a side- by-side but you did not take it. Not true. We were offered an opportunity maybe to put a substitute amendment in at a future time-- maybe. That is not the same. That is not the same as getting the same kind of a vote on the same kind of an issue. And that is always what has been done. We have always allowed side-by-sides. But not on this one. We would rather have the debate going on and try and convince America that both sides of the aisle are doing the wrong thing. Not only are we giving the impression that we are a do-nothing Congress, we are giving them the impression there is nothing for us to do. Let's see. We did not do a budget and we have not done any appropriations bills yet, and there are 12 appropriations bills that have to pass this body, and it takes at least a week for each appropriations bill. We have the authorization bill for defense which we debate each and every year, and about 100 other issues that need to come up here. But instead, we are not voting this week, except the earlier vote on this particular bill and another reconsideration vote. If you keep doing the same thing, you ought to expect the same kind of results. One of the reasons we are voting against the bill that is on the floor is it has not been to committee so it has a lot of flaws in it. This is a poorly drafted bill. Here is kind of how it works: We have said that dentists and doctors and other professionals who are in small corporations--we are picking on small business here--are cheating on their taxes. They are not paying a payroll tax on their dividends. There is a law against that, and the IRS can enforce that law, and does enforce that law. The examples that have been given are times that they actually caught people doing that and enforced it and won. But to do an audit on this, it would probably take a maximum of 30 minutes of computer time to find every small business corporation that might be cheating on their payroll taxes. But instead of doing that, we are going to use it as a pay-for, and we are saying it is only doctors and dentists and lawyers and accountants and other professionals who are doing this. Well, there are a whole bunch of people who have small business corporations. Small business corporations are an important way to finance small businesses, and it is a little less complicated than the big corporations. But we usually do not pick on them specifically, and we usually do not separate them into separate groups. This one is just the professionals. It does not cover the rest of them. I asked the question earlier. I said: Does that mean you are saving the others for a pay-for for something else? If there is a problem, we ought to solve the problem. But the problem can easily be solved by the IRS by doing the proper job of auditing, if that is the case. But these small business corporations are declaring that a lot of their profit is a dividend. Here is an interesting part: We are not talking about the income tax they pay on that. They are having to pay the income tax. Unlike a big corporation, they are paying the income tax on their personal tax form the minute it is earned, not when it gets actually distributed. Most of the small businesspeople have to pay the tax on it but leave it in the business so they can grow their business. I have been there. I have had a small business corporation. I know, while you would like to take the money out, if you want your business to succeed, you have to keep reinvesting and reinventing. That means you do not get to take the money out. If we were being fair, we would say anybody who makes over $250,000 in dividends a year would include that as payroll tax. In other words, this is another Warren Buffett thing. How many millions do you think he makes in a year that come into him as dividends? If those did not count as dividends, he would have to pay a Medicare percentage tax on every dime of that. That is what we are talking about here with the professionals whom we are going to discriminate against in a bit. We are saying that anything that counts as a dividend for them, they are going to have to pay the Medicare tax on. Why just pick on the professionals? Why not pick on all small businesses? Of course, small business is the job creator for the country, so we should not be picking on any of them. We should be making sure they are paying the taxes they owe, but that is not what we are doing. And we are saying Warren Buffett is a special case out there, even though we like to talk about a Warren Buffett tax every once in a while, but we are not going to in this case. What we are talking about is the tax that would be for Social Security and Medicare. If they are not paying that, they ought to be paying it. But we are saying that is a good pay-for. How many times do you think we can take the money that is supposed to go to Social Security and Medicare and spend it on something else and hope Social Security and Medicare continue to exist? That is what we are doing here. We are saying we are going to take the money from the doctors and the dentists and other professionals and we are going to make them pay a Social Security and Medicare tax, but we are not going to put that into Medicare, we are not going to put that into Social Security. Instead, we are going to give it to college students so they have a reduction in their loan. It is kind of interesting. The Department of Education borrows their money at 2.8 percent, maximum, and they are loaning it out to college students at 3.4 percent for subsidized student loans and 6.8 percent for unsubsidized student loans. The law says that on July 1 it is supposed to go to 6.8 percent for both subsidized and unsubsidized student loans. Where do you think that profit goes? Well, we already spend that on other projects. That is why it needs to go to 6.8 percent, so we can pay for what we promised we would pay for. But if we freeze the interest rate on subsidized loans at 3.4 percent for one- year, we still have to pay for the other things. So what we are going to do is, we are going to take money that ought to go to Medicare, and we are going to give it to college students. So it is a dilemma. We want to make sure the rate stays at 3.4 percent. But this body, debating back and forth, without getting any votes, is not going to resolve it. Even if we got to do an amendment or two--that is a big deal around here: to get to do an amendment or two on the floor--we still would not be able to resolve it because we would not have gotten the people from here and the people from there together in a small group to work out a solution. That is what the leader ought to be doing. That is why you send things to committee. But we are not doing that. The other side has assured me that even though we are not putting this money into the Medicare trust fund, that the Medicare trust fund will still have all of its money. Let me tell you how that works. As an accountant in the Senate--and there are only two of us now. For 15 years, I was the only one. But there are two of us now. Here is how it works: When the money comes in, a bond is put in the Medicare drawer that says the Federal Government owes Medicare that amount of money. But we go ahead and spend the money. They say: Well, this trust fund is still intact. No. It only has debt in it. It does not have money in it. I discovered that trying to get some money out of a trust fund once. They said: Well, you cannot get it out unless you put money in. What kind of bank account is that? What kind of a trust fund is that? That is what Social Security and Medicare are. They are a bunch of bonds in a drawer that the Federal Government says we are good for. The way we are spending, we may not be able to be good for that. People ought to be concerned about that. So that is where we are. We are talking about taking the Medicare money and the Social Security money, putting bonds in a drawer, using the money, and saying all is well in the world and everything is paid for. Our side has said, there is a health care slush fund and there are not any criteria set up on it. There are some broad categories it can be spent on, but there are no real criteria on it, and it has more than enough money to pay for this. The only person who gets to decide how that money is given out is the Secretary of Health and Human Services, and she has a lot of flexibility on that. There is a lot of money coming in--maybe at least $2 billion every year allocated to that, and there is already money in that fund, as it started with more. I think the estimate was actually $80 billion over the life of the health care bill. The President himself has helped himself to that when we did the payroll tax holiday extension. That is where the money came from for that. So our side has said: Why don't we use that again? That is supposedly real money. But one thing that both sides are doing--they are saying: OK, we are going to freeze the interest rate for 1 year, but we are counting revenue that is supposed to come in for 10 years. How many people in America can say: I am going to have this salary, and I might have it for 10 years, but I need to spend it all this year. If I spend it all this year, how do I live the other 9 years of the time? That is what we are faced with every time we do a 10-year receipt of money in exchange for a 1-year spending project. And we are doing that more and more and more. But, again, under our accounting system, that does not go down as the same kind of liability and debt situation that increases the debt ceiling or increases the debt for the country. So it is a very clever tactic to use, but it is not honest with the American people. Yes, I am upset we are spending all this time on this reconsideration of a vote that we had. When you do not make any changes, you can expect the vote to come out exactly the same. But it allows us days to harangue each other, and that is the wrong way to do it. I have asked the leader to pull this bill down, send it to committee, give them a limited amount of time to work on it, and see if they can come up with a solution that both sides would like and one that does not have a lot of loopholes in it. Loopholes? Well, when we are talking about these small business corporations for doctors and dentists, et cetera, we said: If they make more than $250,000 a year and if the small business corporation has three stockholders or less. I do not think they are cheating to the degree that they say this money would come in. But if they are, I can see the wheels turning out there and people saying: Let's see, I have three people in my corporation. Oh, my son is not in the corporation yet, so we will make that a fourth one. When we get the fourth person in the corporation, we are exempted from this. How much money do you think is going to come in through that proposal? That is what can be worked out if it goes to committee. So, I again ask the leader to send it to a committee, give them a limited amount of time to work on it, and see if they can come up with a solution that both sides will like because both sides said the interest rate ought to be 3.4 percent for the next year. Then we ought to take a look at the cost of all college education. As all the people have said, college is important. Education after high school is important. We had one hearing on that in the HELP Committee too. When we were scheduled to have that hearing--I make a weekly trip out to Wyoming and travel around the State so I get to talk to a lot of people--I happened to be talking to some sixth graders, and I said: We are going to have this hearing, and the title of it is: Is education after high school important? Do you know what. Those kids all said yes. We did not have to bring in some people from Harvard and Stanford to convince us of that. We could have been talking about the cost of college, which would get more people going to college, and not just college but some of the tech schools too because we are going to need a lot of different professions in future years. Let's get this thing to committee and get it resolved and get on with some of the issues we need to be working on--some of the ones that are big money that affect all of America, not just 40 percent of the students at about a cost of $7 a month. So with that plea, I yield the floor.

Mr. ENZI

Mr. ENZI. Mr. President, there is no reason we should be having this debate today. Freezing student loan interest rates for 1 year during tough economic times is something I believe we all agree on, so it should be relatively simple to accomplish. The President supports it, Governor Romney supports it, and a bipartisan majority in both the House and the Senate supports it. Given this kind of agreement, I see no reason why both sides could not have a good-faith discussion on where to find the $6 billion in savings in a government with a budget that spends nearly $2 trillion annually. Actually, we spend more than $2 trillion annually. I would mention, this bill has not been to committee. I hope the American people have noticed that bills that go to committee and then come to the floor are usually successful. I hope they also notice that bills that do not go to committee and come to the floor are usually not successful; they are usually a political statement. That is what we have here again today. This is how it works: You bring a bill that you know the other side-- well, in fact, this body has already voted on the concept of this tax before and defeated it. They know with that provision in there, this common interest will fail. So why do they do it? Well, you notice this is a motion to proceed and requires a cloture vote. So 40 of us can stop this bill, and will stop this bill in the condition it is in without having gone to committee. But when we stop things, it seems those Republicans think that students ought to be paying more interest. That is the part that is wrong. The part we are disagreeing about is how to pay for it. Pay for it? We have an economic judgment day coming in this country because of the debt we are running up on a daily basis. That is what put the world into kind of this funk anyway. I am not sure what is going to happen now that France has decided they are not going to have austerity and Greece has decided they are not going to have austerity. Now they have leaders who say they are going to fight any kind of austerity. It could put the world in a real crisis. But what we are talking about is whether to keep the student interest rate at the low rate that it is right now, and we are going to have to vote on a bill that we are going to have to defeat because of the pay- for in it, which will make it look as though Republicans want to raise the rates on students, and that is not true. But the majority prefers to pick a fight rather than help students during these tough economic times. What do I mean by this? After initially reaching out to my staff, indicating their willingness to work toward a bipartisan solution, they leaked their proposal before talking to us, which contained the offset they have in here. There could be a solution. We have to counter with one and ask that there can be two side-by-side bills. That means we can have one they vote against, so we can say they did not want to keep student rates low, which is also wrong. But somehow we have to figure this out, and we have to do it in a bipartisan way. That means probably neither suggestion that is up right now is the one that is going to work. The majority would have Americans believe their bill simply closes a loophole used by wealthy doctors and lawyers and other professionals who organize as an S corporation in order to avoid payroll taxes. Well, let me tell you about taxes. If you are in one of those small business S corporations, you pay your taxes. You pay them on the year the company earns them--not the year the dividends are distributed. The year the company earns it, you pay all of the taxes that are due on that piece of money, even though you have to leave it in your business, so you can keep reinventing your business, so you can stay in business, so you can maintain the jobs you already have, and, hopefully, add a few. That is what an S corporation does. It says: We are going to give you this big break. We are going to let you pay your taxes upfront, even though you cannot take the money out. But what we are talking about here is payroll taxes. Payroll taxes are the money all of us put in as an investment for our Social Security and our Medicare. That is what payroll taxes are. That is what we are talking about now, charging on this money that has already had all the income taxes paid on it and, incidentally, has also had payroll taxes paid on it. The IRS is already given the authority to check and see if people are taking out a de minimis distribution. There is an amount you have to take out of your business and you have to claim it for salary. You cannot hide it as if you were rich or something. It does not work that way. The IRS has rules. The IRS can claim those payroll taxes. But what we are talking about now is taking those payroll taxes--payroll taxes, remember, are Social Security and Medicare payments; they are investments in your Social Security and your Medicare--we are talking about taking those and subsidizing student loans. Medicare is in trouble and, once again, we are talking about stealing from Medicare. We did that in the health care bill. We took half a trillion dollars out of Medicare and we put it into new programs. We did not put it into a doc fix. You keep hearing us talk about the doc fix. We are not paying the docs enough that they want to take any new Medicare patients. Well, we did not take the money in Medicare that might have been used and use it in Medicare to keep the Medicare system running. No. We put it into new programs so we could say this health care plan was paid for. Now we are saying we are going to use those payroll taxes and we are going to use them to subsidize the student loans. When does Medicare ever get the money to pay for Medicare? Oh, that is right, we have a new board now--an unelected board--and this unelected board will tell us each and every year where we have to cut in Medicare in order to pay for Medicare, even though we stripped all this other money out that could have paid for Medicare. What a deal. Well, here we go again. This tax would end the payroll taxes by shifting them into the student loans. When we are talking about pay- fors, we do all kinds of crazy things around here, and we should not be doing them. We should be a little bit more straightforward, not just with the students but with the American taxpayer. In reality, this is an irresponsible tax increase on small businesses at a time when we need small businesses creating jobs so college students have employment opportunities when they graduate. In Wyoming, S corporations are family owned small businesses working hard to keep their businesses afloat. As I mentioned, they get to pay their taxes even if they cannot draw the money out and use it. So, for instance, small motels, small architecture firms, and groups of engineers might choose to operate as S corporations. Or they could be a full corporation, and then they would have some of the same benefits Warren Buffett has. Warren Buffett makes millions and he does not have to pay payroll taxes on that. But we did not suggest ending Warren Buffett's payroll tax-free money. We are only going to do this to the small business corporations. Sounds fair? I do not think so. This will also hurt family businesses in another way. For example, a son who is taking over an accounting practice from his father could be hit with substantial payroll taxes if he owns, for example, 10 percent of the firm, while his father, who is no longer active in the business, retains the other 90 percent. These are not the tax scofflaws that the majority suggests this tax will impact. They are real, small businesses that are the fabric of the American economy. Small businesses accounted for 65 percent of the 15 million jobs created between 1993 and 2009. So rather than increasing taxes on small engineering and accounting firms, we should be encouraging these businesses to hire new employees. As a former small businessman, I know this will not happen if we raise taxes on the very businesses we depend upon to turn the labor market around. Recent reports demonstrate the need to encourage, rather than inhibit, job growth and creation. That is what we are talking about: jobs. This year, more than 50 percent of college graduates are either unemployed or underemployed. Graduating in a bad economy, where jobs are scarce and lower wages are the norm, can have negative economic consequences for up to 15 years. With the cost of higher education increasing more rapidly than the median family income, there will continue to be greater dependence on student loans. Unless the economy improves, there will also be a lesser chance that going forward graduates will have the resources to even make minimum loan payments. The Republican alternative puts forward a solution that takes money out of--and I know the Senator from Iowa hates the word--a slush fund, but it is a fund with rather wide possibilities, and a fund that can be designated by the Secretary. This is not the first time this has been used as an offset. Our President signed legislation that cut $5 billion from the fund to offset the payroll tax bill. Now we are talking about payroll taxes again, but our side is talking about using the same funding source the President used to pay for a payroll tax cut earlier this year. The President also proposed to cut an additional $4.5 billion out of the same fund when he submitted his budget for this year. I had to go and look and see what some of the uses are for this fund that we would be cutting into because it is spent at the discretion of the Secretary of Health and Human Services and there are not a lot of guidelines. Many of the programs funded by this Prevention and Public Health Fund--often called a slush fund--duplicate existing health programs or waste taxpayer money on some frivolous programs. The fund has wasted millions of taxpayer dollars and even supported potentially unlawful lobbying activity. For instance, a public health clinic in Nashville, TN, used money to offer free preventive services for dogs and cats, not women and children; $3.6 million went to the Minnesota Department of Health to create at least four regional food policy councils, to increase the access and availability of affordable healthy food; $8.4 million to the New York Fund for Public Health to implement a local tax on sugar-sweetened beverages; $3.3 million to the Washington State Department of Health to increase local preemption of tobacco marketing and taxation and support legislation that repeals preemption of tobacco marketing; $3 million to lobby lawmakers in New York for legislation requiring chain restaurants to publicly post the amounts of the calories they serve; $7 million to Jefferson County, AL, to urge Alabama lawmakers to raise tobacco taxes; $16 million to the County of Los Angeles to help secure a ban on new fast food restaurants around Los Angeles. A lot of that is lobbying activity. Yes, I suppose the end results could be prevention of health care. This country is coming up on an economic judgment day. We do not have extra money lying around. In fact, when we are talking about pay-fors, we are only talking about paying for whatever new is put in. We do not talk about how we are going to cover the $15 trillion in debt we have out there, the $49,000 every man, woman, and child in the United States owes. It is a heavy burden. I talked earlier about Greece. Greece only owes $39,000 per person. They are just not trusted as much as the United States. If we keep running up that debt, we are not going to be trusted either. Unfortunately, President Obama and the congressional Democrats would rather play election-year politics than find a solution that focuses on the immediate need of America's students and their families. Neither bill is ideal. Each spends 10 years of savings in 1 year and neither produces a long-term, sustainable solution. However, the Republican proposal has the benefit of using an offset previously used by the Democrats, as I mentioned. The $5 billion from that fund was used earlier this year to help pay for the extension of the payroll tax holiday, and in this year's budget, the President proposed cutting an additional $4.5 billion. The Democratic bill raises taxes on small businesses at a time when the Nation needs those businesses to be creating jobs so college students have employment opportunities when they graduate. It is discriminating against small businesses because it does not take in corporate dividends that people get, which are the same thing. It is the dividends they eventually are able to take out of the business. But a big corporation pays dividends to investors and those do not have payroll taxes taken out either. So no sincere attempt was made by the Democrats to find a bipartisan solution. Both Senator Reid and Senator Harkin reached out to my staff to inquire about the possibility of funding a solution. My staff expressed a willingness to discuss possible offsets, but the Democrats released the details of their proposed S corporation tax prior to any meeting. When my staff did meet with Senator Harkin's office, his staff indicated the S corporation offset was the only offset the Democrats were willing to consider. That makes compromise pretty difficult. Senator Reid has filed for cloture on S. 2343, the Democrats' bill we are talking about now, and a vote will be held tomorrow at noon. At this point, we have been told we are not going to have a vote on the Republican bill at all. So cloture tomorrow will fail because there will be no opportunity to put any amendments on this bill, and this is not a perfectly drafted bill. This is something that was put together in a bit of a hurry without having bipartisan input. The reason we have 535 people in Congress is that there are a whole bunch of different viewpoints. The reason we have 22 people on a committee is that there are 22 viewpoints that go into the bill and we can see what unintended consequences there are. That did not happen on this bill. This has been put together by two or three people or half a dozen staff members or whatever, I am not sure. But it has not had the input from both sides. So our side had to come up with a bill that follows the same procedure. I can tell you neither bill is ideal, and a solution has to be reached for these young people. We are all agreed on that. We are just not agreed on how we pay for it, and we do have a problem with paying for things around here. I urge the majority leader to pull the bill from the floor, sit down with us, find a solution we all can agree to. This is not an issue over which election-year politics should prevent us from reaching a bipartisan agreement. I am not aware of anybody who is opposed to the extension of the reduction in the interest rate. Incidentally, that is not an interest rate reduction to everybody; it is only to those who have subsidized loans. If someone is a student who has regular loans, they are not able to participate in this. That would require a lot more money. Again, I urge the majority leader to pull this bill, sit down, come up with a solution both sides can agree on. It is getting tougher and tougher to find pay-fors because we are getting further and further in the hole. We are not going to stop digging, so we better start digging together. I yield the floor.

Mr. ENZI. Mr. President, I said it before and I will say it again: Neither option is ideal. These ought to be the options we are voting on, but actually we are not going to get to vote on the two options, we are going to get to vote on one option because this is a cloture vote. And this cloture vote will fail. It will fail because it is not a good enough bill to pass. It is not a good enough bill to get 60 votes, so it will fail. And the only purpose of it failing is to say: Look at those Republicans who killed that bill. There could be a solution, but it isn't a solution by bringing a bill directly to the floor and saying: Take it or leave it. It has to be a solution by sending it to committee and having the people there work out a way that it can be done. We have done that in our committee a number of times, and the bills that go to our committee and then come to the floor are pretty successful. But this one did not go to committee. So it isn't really two choices we are getting, it is one choice: We can take it the way the Democrats wrote it or we can forget it. They say this closes a loophole because of the wording regarding there being three or fewer shareholders. Now, I can already hear how people's minds are working. They are saying: OK, if I want to cheat on that--and you have now taught me how I can--I will add a fourth person. Now your bill doesn't cover it. So it is not written properly. We are not going to stop them by doing what is written in the bill, so it is not going to generate any revenue. If it doesn't generate any revenue, it will not pay for the cost of keeping the health care down. Besides that, the IRS has guidelines that say how much one should be taking out of their business as wages, and they have to pay a payroll tax on that or they will be taken to tax court. That is the case to which the Senator from Iowa referred. It was a case of an accountant who got caught and was taken to tax court and told he couldn't cheat on his taxes. Now, we ought to have more enforcement like that. It should be pretty easy for the IRS to check and see if there are some S corporations out there that aren't paying any wages. That should be a little computer check since every return gets turned into a digital return now. Some of us help the IRS by sending our forms in digitally to begin with, which saves a lot of input on someone's part. But they can check in a matter of seconds the S corporations that have no wages, and if they have no wages, perhaps they ought to have a much lower limit than what the other side is suggesting. If we are going to do tax reform, let's do tax reform. To do it this way is the wrong way. I also heard the comment that this money is not being taken from Medicare and Social Security. Well, the way we do Federal accounting-- and we should be ashamed of the way we do Federal accounting--that can be a true statement, but, in fact, it is not true. Here is how we do it. Here is how we cook the books as a Federal Government. We will collect this tax that should go to Medicare and Social Security and we will put bonds in a drawer and we will spend the money on the reduction in interest rates for the students. That is spending it twice because we are still showing it over here as owing it to the Social Security and Medicare folks. But we do this all the time. Do you know how much money there actually is in the drawer called Social Security? Nothing. There are bonds in there. I used to listen to Senator Hollings, Democrat from South Carolina, talking about how we were lootin' Social Security--lootin' it--because all we do is put bonds in a drawer and we spend the money. And we have been doing that for decades. So the deficit we are talking about is probably considerably greater than what we are willing to admit. But that is exactly what we are going to be doing here once again. We are going to be lootin' Social Security and Medicare and providing some loopholes for them to keep on doing the same thing they have been doing. We are going to have to get the IRS on that and get it going better. There ought to be a lot more options. But that is not what we are doing here. What we should be doing is getting together and figuring out more options, more ways to take care of all of the problems students are having. And they are going to be demanding a whole lot more than what we are doing. I would remind the Democrats that the President did take $5 million from this prevention fund, and I heard him say that was enough. Well, if that was enough, how come his new budget includes taking another $4.5 billion out of that fund? So I guess he doesn't think that is enough. He thinks there is still more that can be taken--$4.5 billion. This is a $6 billion project we are talking about here, so $1.5 billion another way. We are just talking past each other, and that is what happens any time a bill comes to the floor if this is the only place we get to debate it. Notice how many of my colleagues are listening to me right now. If there are two people on the floor, it usually means one is getting ready to speak and is not listening to what is being said. That is not a debate. That is not a way to come up with solutions. What we have to do is send these things to committee. Senator Harkin and I have a way of working on bills in committee, and that is to have people turn in their amendments a couple days ahead of time and we look at those. It is surprising how many times an amendment by a Republican is almost the same as an amendment by a Democrat. The trick is to get the two of them to sit down together and figure out which words need to be changed so that they can both take credit for it. So this is a frustrating process. It is the wrong way to do it. But I have to answer one more thing yet; that is, I cited some cases where funds were being used from that prevention fund that I thought were wrong and I do think are wrong. The Senator said that if we had some information on that, if we would give it to him, he would make sure the Department of Justice gets on it. Well, now we not only need to have the IRS working, we have to have the Department of Justice working a little bit because there is some pretty good evidence, I think, that some money has been spent for lobbying. In some cases it is called advocacy, but it is by people working the legislators over, and that, in my opinion, is lobbying. I do hope this bill will be referred to committee, which is where it deserves to be, so that a solution can be worked out. I would hope that if we do have that cloture vote tomorrow, instead of having the bill pulled, that both sides will join in saying ``send it to committee'' and vote against cloture. I yield the floor.

Mr. ENZI. Could I amend my comments to have the Finance Committee take the bill and work out a solution?

Mr. ENZI

Mr. ENZI. Mr. President, I yield such time to the Senator from South Carolina as he may need.

Mr. ENZI. Mr. President, I thank the Senator from South Carolina, particularly for the insight on the way that this particular Board abused his State and found out they were wrong and got it all taken care of. But his comments are particularly valuable in dealing with this shortening of the time as well. I thank him for speaking and I yield the floor.

Mr. ENZI. Mr. President, I yield myself such time as I may consume. I wish to continue the debate a little bit on the Boeing situation because the company was creating 2,000 additional jobs--reducing none but creating 2,000 additional jobs--in South Carolina at a new plant. The NLRB general counsel, who was not confirmed by this body, went ahead and decided to investigate and work on a complaint and created a lot of concern for 2,000 employees who didn't know whether they would be able to work. The case actually wasn't settled. I think the National Labor Relations Board realized they had made a mistake and, because of the national controversy it created, actually withdrew the case even though it could have taken about 3 or 4 years through the courts to take care of it, and we covered that situation in one of the hearings Senator Harkin asked for. I thought the company did an outstanding job. What we are talking about today relates a little bit to that because the South Carolina folks decertified in the small window they had, which says they weren't pleased with what they had been handed. So some of these discussions are extremely important, and the time to do those is extremely important. So today we are renewing this debate on S.J. Res. 36, the Congressional Review Act Resolution of Disapproval to stop the National Labor Relations Board's ambush elections rule. This rule is the second formal rulemaking the National Labor Relations Board has pushed through in the last year--their third in the past 75 years. There was only one before this Board decided they would take unusual action. As I mentioned, the first rule has been struck down already by Federal courts because it went far beyond the agency's authority. This ambush elections rule is also being challenged in the courts, but it is set to go into effect in less than a week--on Monday, April 30--and that is why the Senate must act today to stop the National Labor Relations Board from stacking the odds against America's employees and small businesses. During yesterday's debate, both sides got to air their concerns. I wish to respond to some of what I heard. There was much talk about the 90 percent of elections that go forward under mutual agreement. The argument was that because both sides were able to come to an agreement and because the wide majority of elections occur in a timely fashion, parties should not mind losing their rights to raise issues prior to the election. This argument is turning the concept of coming to agreement on its head. Yes, it is true that 90 percent of elections occur under mutual agreement and occur in 38 to 56 days, but that is precisely because both sides have the ability to raise issues of concern, such as which employees belong in the bargaining unit, and have them resolved. In other words, both sides have incentives to make fair requests because the other side has the leverage of exercising the right to contest. When all of these rights are taken away and an election is scheduled in as few as 10 days, the result will be that less mutual agreement occurs. The National Labor Relations Board has taken a process that is working well and becoming swifter year after year and turning it into a contentious process where the small business employer side feels entirely ambushed. If the National Labor Relations Board were truly intending to address the small minority of cases where long delays do occur, they should have drafted a rule that addressed only those cases. Yesterday both Chairman Harkin and I quoted Presidents from each other's parties. I quoted John F. Kennedy's statement during labor law debates in 1959 when he was a Senator here saying: There should be at least a 30 day interval between the request for an election and the holding of the election. He went on to say: The 30-day waiting period is an additional safeguard against rushing employees into an election where they are unfamiliar with the issues. I agree that one of the most important reasons for a waiting period is for the employees to learn more about the union they may join. This is in fairness to the employee. In many cases, the election petition is the first time some employees have ever heard about the union. They want to know what the union's reputation is for honesty, keeping their promises, treating members well, and working well with the employer to make sure the business stays in business. Once a union is certified, it is very difficult for employees to vote it out if they decide to. Employees are barred from petitioning for decertification for a full year after the election and barred as well throughout the term of the collective bargaining agreement. Employees should have a chance to understand that once they unionize, they will no longer be able to negotiate a raise individually with their employer. Exceptional performance will not be rewarded, and grievances cannot be brought straight to the employer but will instead have to go through the filter of union officials. Chairman Harkin quoted former President Dwight Eisenhower. I haven't had a chance to look up the quote's context, but the gist of it was that only a fool would oppose the right of an employee to join a union. My comment on that is that a vote for this resolution does absolutely nothing to diminish the right of any employee to form a union. This resolution will not change the law one bit. If we are able to stop the ambush elections rule, union elections will still occur in a median of 38 days, with nearly 92 percent occurring in 56 days, just as it is now. And I would even venture to guess that the unions will continue to win the majority of elections. Last year they set a new record by winning 71 percent of elections. That is under the old rule. So a vote for this resolution may please both those former Presidents, whom we all admire, and forcing a fast election--an ambush election--may irritate employees into a negative vote. Now, I know the President issued a policy on this that says that if it comes to his desk, he will veto it, and that is his right. I checked the Constitution. The Constitution says we are an equal branch of government with the President. We do not serve for the President, we serve with the President. That could be a quote from Senator Byrd, who used to sit at that desk and pull out his copy of the Constitution and point out that the President gets to do what he wants to do, but we have a responsibility to do what we need to do. In this case, one of the administrative branches is overreacting-- doing something it should not do--and we need to say no. If it gets to the President's desk and he vetoes it, that is his part of the process, although I think that when the law was written, it should have been that if Congress, which passes the law and grants rulemaking authority, disagrees in the Senate and the House, that ought to be the end of it. It ought to be the end of a rule or regulation. It shouldn't be the beginning of the process where the President can veto it, because he is in charge of the side that created the rule. But our job should be to take a look at these things, decide if they are right or wrong, and if they are wrong, to vote against them as part of the process. So I think many will be joining me on this resolution of disapproval--at least I hope they will. That is our job and our right. I yield the floor and reserve the remainder of my time.

Mr. ENZI. Mr. President, I yield myself such time as I might consume.

Mr. ENZI. Mr. President, one of the things I have been checking on here is the statement that was made earlier that one in five people get fired for working on organizing. That statement is based on a phone survey of union activists for their estimate if an employee is terminated during an organizing drive. It is not based on fact. The fact is, unions only filed objections in approximately 1.5 percent of the elections, and that number includes objections based on many issues other than employee terminations. Under the current law, it is illegal to terminate or discriminate in any way against an employee for their union activities. If this occurs during an organizing campaign, the National Labor Relations Board is required to rerun the election since it created an unfair election. This occurs in about 1 percent of all elections and has been decreasing in recent years. I would expect that to increase in succeeding years if this rule passes because this is an attack on small businesses and the small businesses will not have the necessary information to know what is legal and illegal, especially if they only have 10 days to get their act together. The National Labor Relations Board can go even further if they believe a fair election is not possible. They can certify the union, regardless of the vote, and order the employer to bargain. I have information on some of the studies that have been done on this, and the number does not come out nearly that high. Of course it is terrible if there is even one person who is fired for organizing activities but there is recourse that can be done. I want to raise an important privacy issue that has come up as part of the National Labor Relations Board's ambush elections rule. One section of the initial proposed regulation concerned the private information of employees. It raised so much concern that it was dropped from the final rule. However, the National Labor Relations Board Chairman has publicly stated that he plans to push this and other dropped provisions into law later this year, now that President Obama's so-called recess appointments have created a full board. Under the current law, employers are required to provide employees' names and addresses within 7 days once an election is set. The proposed rule would not only expand the type of personal information that an employer must turn over, but would require that information to be turned over within 2 days of an election being set. Of course, if we are moving it from 38 days down to 10 days, I can see where they would want it in 2 days instead of the 7 that has been normal. The expanded information that the National Labor Relations Board wants employers to give to unions includes all personal home phone numbers, cell phone numbers, e-mail addresses that the employer has for each employee. It also would demand work location, shift information, and employment classification. Let's consider this for a moment. The National Labor Relations Board wants to give employers 48 hours to turn over information of employees who are eligible to vote, despite the fact that the employee's eligibility may not even be determined at that point because of the ambush elections rule, the elimination of this preelection hearing so those sorts of things can be worked out as to who is exactly going to be covered. In essence, an employer will be forced to turn over personal information of employees who may not even be in the bargaining unit. The rule even would have required that the employer alphabetize the lists. The threat of this new invasion of privacy is very alarming to most people. The purpose of the information is so the union organizers can come to your home, call you, e-mail you, find you outside your work location and catch you before and after shifts. There is no prohibition on how many times the organizers can contact you or at what times. There is no ``opt out'' for those employees who simply do not want to be contacted. And there are no protections in place to ensure that the information does not go astray. While a large part of this debate circles around the shortened election time and what that means for employers, with good reason, I do not want us to forget what this new rule could mean to the privacy of employees. Supporters of expanding the information provided to the unions claim the National Labor Relations Board is merely modernizing this standard. In this time of Internet scams, identity theft, online security breaches, and cyber bullying, protecting personal information is not something to be taken lightly. Union elections can be a very intense and emotional experience for employees and employers alike. The last thing we want is for an individual's personal information, such as an e-mail address, to be used as a harassment or bullying tool by an angered party. I want my colleagues to know what is at stake in this debate. A successful Congressional Review Act petition also prohibits an agency from proposing any ``substantially similar'' regulation unless authorized by Congress. Therefore, by supporting my joint resolution, we could put a stop to the Board's future attempt to force employers to hand over more personal employee information. I urge all my colleagues to support this resolution of disapproval. This is one of the most important votes we will have on labor issues this Congress. We need to let the National Labor Relations Board know that their duty as a Federal agency is to be the referee and decide what is fair for the parties involved based on the clear facts of the case. Their job is not to tip the scale in favor of one party or another. Tipping the scale is exactly what the National Labor Relations Board is doing with the ambush elections rule. Congress needs to step up and say ``no'' to the overbearing and burdensome nature of these regulations coming out of so-called independent agencies. You can do that by voting for my joint resolution, S.J. Res. 36. Mr. President, I yield the floor and reserve the remainder of my time.

Mr. ENZI. Mr. President, I yield myself such time as I may use.

Mr. ENZI. Mr. President, I do want to talk about this open and fair, transparent process that was just referred to. Much has been said about the flawed policy behind ambush elections we are discussing on the Senate floor. But I want to spend a few minutes discussing the rulemaking process that was followed or not followed for that matter by the National Labor Relations Board. While the other side portrays the changes as moderate, make no mistake about it, this new rule greatly alters the election system, especially should Chairman Pearce be able to finalize the more controversial provisions that were previously proposed. This entire rule took under 1 year to complete. The National Labor Relations Board introduced the proposed rule on June 22, 2011, and published the final rule only 6 months later on December 22, 2011. Considering the scope of the rule and how much attention it garnered from stakeholders, it is absurd to think that a Federal agency could promulgate a rule that would have such a major effect on all employers, in only 6 months. As evidence of how critical this rule's impact will be on stakeholders, the Board received 65,957 comments. Let me repeat that. The Board received 65,957 comments during the 60-day comment period. That is an astounding number. To compare, the Board's previous rulemaking on its notice posting requirements garnered a little more than 6,000 comments. On November 30, 2011, the Board voted to move toward finalizing a new amended proposed rule. The reason for this new amended rule was clear: The Board was going to lose its quorum at the end of the congressional session in late December 2011. What continues to astonish me is that the Chairman claimed his staff read each of the 65,957 comments, twice, in such a short period of time. In rushing to finalize the ambush elections rule, the Board discarded several well-established internal procedural precedents as well. For example, until the ambush election rule, the Board did not advance a major policy change without three affirmative votes. This was a major policy change. They never did it without three affirmative votes, whether through rulemaking or a case decision. This was not the case in the ambush elections rule where only two members voted in favor of finalizing the rule. Further, the Board rejected the tradition of providing any dissenting member at least 90 days to produce an opinion. Instead, Chairman Pearce offered to publish a dissent after the final rule was published. The process the Board used to promulgate the ambush elections rule was rushed through for no good reason. Yet in the process it decided to discard years of Board precedent. I should also mention one of these people, one of the two who voted for it, not three--one of the two who voted for the rule, and there were two who voted for it--was a recess appointment because they knew this body would not stand for that person with the radical views he held, actually claiming before his appointment that he would cause this sort of a thing to happen; that he would even be able to institute, through Board procedures, card check. Now, that is a pretty radical statement, and that alone was keeping him opposed by both sides of the aisle. There were people on both sides of the aisle who opposed card check. So two people voted for it; one person voted against it. That person was not allowed the right to put in a dissent opinion. That is wrong. That is not open and transparent. Now I would like to talk a little bit about the targeting of small business this regulation does as well. All of our States have a lot of small business. Small business is the backbone of job creation in this country. We need to make sure that process can still follow. Once a petition for representation is submitted, the current median timeframe for a union election to be held is 38 days. That is the median time. The ambush election rule would shorten that timeframe to as few as 10 days. For small business owners, with the range of company responsibilities and limited resources, this puts them at a severe disadvantage. Most small business owners are not familiar with complex labor laws they have to adhere to during the representation election process. For example, they may not be aware that certain statements and actions could result in the National Labor Relations Board imposing a bargaining obligation without a secret ballot election. They can declare the election over. Furthermore, most small businesses do not have the resources to employ in-house counsel or human resource professionals familiar with these laws. So holding an ambush election in as few as 10 days does not provide small business owners with enough time to retain a competent labor attorney, consult with them, and then adequately prepare for an election. I have given the reasons before why it is unfair to the employees. But it is also very unfair to a small business owner because their day-to-day responsibilities range from sustaining a competitive product, to managing personnel, to balancing the books at the end of the day. I know. I have been there. I had a shoe store. They have to do all of those things. The definition by the Federal Government for a small business is 500 or less employees. In Wyoming that would be a big business. My definition of a small business is where the owner of the business has to sweep the sidewalks, clean the toilets, do the accounting, and wait on customers--and definitely not in that order. So those day-to-day responsibilities to keep the business competitive take a lot of time, and given such a demanding schedule, it takes time for a small business owner to fully understand the pros and cons of unionization. It takes even longer for a small business owner to communicate these points to their employees. Ambush elections make it logistically impossible for small business owners to fully discuss the effects of unionization with their employees, partly because they will not even know what those effects are, and neither will their employees. A union organizing campaign does not begin on the day an employer receives a petition for representation. It typically starts months or even years before, when professional union organizers start conveying their side of the story to targeted small business employees. They work on it for months. By unjustly curtailing an employer's ability to convey their point of view, ambush elections deny employees the opportunity to hear both sides of the argument on unionization. The small business employer is also at a disadvantage because the union organizer will be in a position to set up the election to his best advantage, essentially cherry-picking union supporters before the election process begins. The organizers will have had limitless amounts of time to analyze which employees could be argued to belong in the bargaining unit, which may qualify as supervisors, and who is most likely to support a union. With ambush elections, the National Labor Relations Board will impose the election before the employer has an opportunity to even question those assumptions, especially since we have significantly restricted the one tool--the preelection hearing--that the small businessman would have to question who is in and who is out. According to a recent Bloomberg study, unions win 87 percent of secret ballot elections held 11 to 15 days, compared to a 58-percent rate when elections are held 36 to 40 days. By shortening the election timeframe, labor unions will undoubtedly win more representation elections--perhaps. The perhaps is that they may really irritate the employees and win less of them. The way that it is held in 11 to 15 days is when the employer and the employees agree on all of the issues and get the election to move forward. So it can happen in a short period of time right now. Otherwise, the median time would not be 38 days. But I think this rule will alienate those people who have been getting together and arriving at these agreements. So for small business owners, the surge of union bargaining obligations means a less flexible workforce, increased labor costs, and fewer opportunities for job creation. And they are the job creators. The National Labor Relations Board is only creating more uncertainty for small business at a time when the country needs them to focus on creating jobs. Small businesses account for over half of the jobs in the private sector and produce roughly one-half of the privately generated GDP in the country. In 2010, small businesses outpaced gross job gains of large businesses by 3 to 1. As the National Labor Relations Board has publicly indicated, ambush elections are only the beginning of a round of regulations aimed at making it easier for unions to win representation elections in American workplaces. Proposed regulations, such as requiring small businesses to compile a list of employee phone numbers and e-mails and then handing them over to union organizers before an election are time consuming. They are costly. They are extremely invasive. Furthermore, they are indicative of how this administration is more concerned about boosting labor union membership than creating jobs. We have to create jobs. We cannot continue to pick on the small businessman and put him at a disadvantage. This is a rule that is looking for a place to act. It is not one that was needed or requested other than by labor organizers. I think it will have repercussions. So I would ask everyone to vote for the resolution of disapproval so this does not go into effect, although we have been promised, of course, a Presidential veto if it makes it to his desk. But that is Congress. We have the right to say we do not think the rule is right. The President has the right to say his administration is right and veto the law. But we have to make that statement, and we have to make it on behalf of small businesses and employees. A lot of this has to do with employee fairness and giving them the time to figure out what the union will do with them and for them and to them. I yield 3 minutes to the Senator from Alabama for morning business, as I understand it.

Mr. ENZI. Mr. President, I ask unanimous consent to have printed in the Record three additional letters of support from the Motor and Equipment Manufacturers Association and National Council of Textile Organizers and the Building Owners and Managers Association International.

Mr. ENZI. Also, there will be key vote alerts from the Associated Builders and Contractors, Associated General Contractors, Brick Industry Association, Competitive Enterprise Institute, Heritage Action for America, International Franchise Association, International Warehouse Logistics Association, National Grocers Association, National Association of Manufacturers, National Federation of Independent Business, National Restaurant Association, National Roofing Contractors Association, National Taxpayers Union, the Retail Industry Leaders Association, and the U.S. Chamber of Commerce. I yield the floor and reserve the remainder of my time. I suggest the absence of a quorum.

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

Mr. ENZI. Mr. President, I yield up to 10 minutes to the Senator from Georgia, Mr. Isakson.

Mr. ENZI. Mr. President, I yield 8 minutes to the Senator from South Dakota.

Mr. ENZI

Mr. ENZI. Mr. President, I thank the chairman for the gift of time. There is nothing that is a greater gift than that. Of course, I would like everyone to vote for my resolution of disapproval. This did not go through a process that was open and transparent. In fact, there was only one person who voted for this who was confirmed by the Senate. There were two people who voted for it. The other one lost, in a bipartisan way, the ability to be on that committee, so he was recess-appointed. So one person confirmed by the Senate is making this rule, and there was also one person confirmed by the Senate who was against it. So it was a 1- to-1 tie. That would normally defeat anything. The biggest thing that is being taken away in this, the biggest thing that collapsed the time down to a potential 10 days, the biggest thing is eliminating the preelection hearing. That is when the employees--the employees--get their fairness of finding out exactly who is going to be represented, who is going to be part of their unit, and get any of their questions answered about this organization that is about to receive their dues. It seems like the employees, for fairness, ought to have that right. It also ought to be for the employers to have that right, especially small businesspeople to have the time to get it together so they are not violating any of the National Labor Relations Board's rules that they can easily step into and be in big trouble during one of these elections. I urge all of my colleagues to support this resolution of disapproval and stop the National Labor Relations Board's ambush election rule. This vote will send a message to the National Labor Relations Board that their job is not to stack the odds in favor of one party or another--under this administration or another--but to fairly resolve disputes and conduct secret ballot elections. We have heard from several speakers on the other side of the aisle that this debate and vote are a waste of time. Debating the merits of this regulation is not a waste of time for the millions of small businesspeople and millions of employees who are going to be negatively impacted by it. In fact, once it goes into effect next week, I believe all of us will be hearing from unhappy constituents and asked what we did to stop this legislation, and we will be asked. The contention that we should not be able to raise concerns about the National Labor Relations Board's ambush election regulation before it goes into effect sounds a lot like what the National Labor Relations Board is trying to do to small businesses and employees who have questions about a certification election. This regulation will take away the right to question whether the appropriate employees are in the bargaining unit or whether it includes supervisors and managers who should not be in the union or whether it leaves out a group of employees who should be in the union because they have similar jobs, and if they are excluded, they will lose ground against the newly unionized employees. This regulation takes away the right to present evidence and testimony at a preelection hearing and to file briefs supporting a position. Because of the Congressional Review Act, we Senators have had the opportunity to present evidence and have debate. That is a privilege the NLRB is taking away from many small employers and employees, and that will lead to some suffering of the employees. I urge my colleagues to vote for the motion to proceed to S.J. Res. 36. Again, it is a congressional privilege and we should take advantage of it. It is a chance to send a message that we want all of our boards to be fair and equal. I yield back any remaining time.

Mr. ENZI

Mr. ENZI. Mr. President, I rise today to ask for disapproval to stop the National Labor Relations Board's ambush election rule. This rule I have been objecting to was put into place by an NLRB that is bound and determined to stack the odds against American employees and to put employers and employees in an unfair situation. Despite the fact that unemployment has remained above 8 percent for the past 3 years, and small business growth is the most important factor in reversing the lackluster trend, the National Labor Relations Board has chosen to impose new rules to aid big labor at the expense of employers, and particularly small business employers and the jobs they would create. If the Senate does not act now to stop this rule by passing my resolution, it will go into effect on Monday, April 30, 10 months after it was first proposed. The changes that are being made are going to be a big surprise for the employers and employees who get caught in this net, particularly, as I mentioned, the small employers who do not have the human resource departments or in-house counsel. I would expect that we elected representatives of the people are going to face a lot of questions about what we did to stop this blatant effort to stack the odds in big labor's favor--and we will be asked. This rule will shift the law significantly in favor of big labor. Let me take a moment to explain. Under current practice, there is a 25-day waiting period between the setting of an election by a hearing officer and the actual secret ballot election. Employers could use this time to familiarize themselves with the requirements and restrictions of the law. This is very important because there are many ways that an unknowledgeable employer with the best intentions could make a misstep that would be heavily penalized by the NLRB. Employers also use the time to communicate with their employees about the decision they are making and correct misstatements and falsehoods that they may be hearing from union organizers. Parties also use this time to seek review of a decision made by a hearing officer or an NLRB regional director. Under the new regulation, the 25-day waiting period is abolished and employers may face an election in as few as 10 days. Is it fair to the employees to only have 10 days to learn how this will affect his or her life, and how much of his or her money this will cost? Under current law, both parties are able to raise issues about the election at a preelection hearing, covering such issues as which employees should be included in the bargaining unit and whether particular employees are actually supervisors. Under the new regulation, parties will be barred from raising these questions until after the election. Employees will be forced to vote without knowing which other employees will actually be in the bargaining unit with them. This is important information that weighs heavily in most employees' vote. Additionally, because of the NLRB's decision to allow micro-unions, such as specialty health care, unions will essentially be granted any bargaining unit they design and employers will have a very limited time to weigh in. Under current law, when either party raises preelection issues, they are allowed to submit evidence and testimony and file posthearing briefs for the hearing officer to consider, and have 14 days in which to appeal decisions made with respect to that election. Under the new regulation, the hearing officer is given the broad discretion to bar all evidence and testimony unrelated to the question of representation and all postelection briefs, and no appeals or requests for stays are allowed. This can be quite a disadvantage for employees as well. What this all adds up to is an extremely small window of time from filing a petition to the actual election, little opportunity for employers to learn their rights or communicate with employees their rights, and less opportunity for employees to research the union and the ramifications of forming a union. The NLRB is ensuring that the odds are stacked against employees and businesses. This vote is an opportunity to tell the NLRB to reverse course. If we pass this resolution, as I hope we will, the Senate will not be the only branch of government telling the NLRB it is off track. Last month, a District of Columbia Federal court told the NLRB that several provisions of its notice-posting regulation were well exceeding their authority and struck them down. This was a judge appointed by President Obama. Two weeks ago, another Federal court--this time in South Carolina--also ruled against the NLRB. It found that the entire notice- posting regulation violated congressional intent. Following up on these two rulings, the DC Court of Appeals stayed the entire rule until appeals are completed. The court in that case was frustrated that the NLRB did not postpone the rule itself, given the multiple negative treatments in the courts. Unfortunately, that reckless sense of blind mission is consistent with this administration's NLRB. It is kind of like ``Thelma and Louise'' driving off a cliff. I, for one, don't want to see the NLRB drive our economy off a cliff. I hope this resolution will pull them back and encourage them to focus on their statutory mission. The NLRB enforces the National Labor Relations Act, which is the carefully balanced law that protects the rights of employees to join or not join a union, and also protects the rights of employers to free speech and unrestricted flow of commerce. Since it was enacted in 1935, changes to this statute have been rare. When they have occurred, it has been the result of careful negotiations with stakeholders. This change is one-sided and super quick--an ambush to set up ambush elections. The National Labor Relations Board is not an agency that typically issues regulations. Listen to this: In fact, in over 75 years the National Labor Relations Board has finalized only three regulations through formal rulemaking, two of which occurred last year. Let me repeat that. In over 75 years, the National Labor Relations Board has finalized three regulations through informal rulemaking, and two of them occurred just last year--under this current National Labor Relations Board. As I mentioned, one of those was already struck down by one court and stayed by another. Most of the questions that come up under the law are handled through decisions of the board. Board decisions often do change the enforcement of the law significantly, but they are issued in response to an actual dispute and question of law. In contrast, the ambush election is not a response to a real problem because the current election process for certifying whether employees want to form a union is not broken. This rule was not carefully negotiated by stakeholders. Instead, it was finalized in just over 6 months despite the fact it drew over 65,000 comments in the 2-month period after it was first proposed. Labor law history provides an interesting contrast to this rushed regulatory approach. In the late 1950s, Congress became concerned about undemocratic practices, labor racketeering, and mob influence in certain labor unions. To address this the Senate created a special committee--the Select Committee on Improper Activities in the Labor or Management Field. That operated for 3 years and heard more than 1,500 witnesses over 270 days of hearings. Based upon their investigations, the Senate negotiated and passed legislation to protect the rights of rank-and-file union members and employers. The legislation is known as the Landrum Griffin Act. The issue of how long a period of time there should be between the request for an election and the actual election came up during those negotiations. My colleagues may be surprised to learn it was Senator John F. Kennedy who argued vigorously for a 30-day waiting period prior to the election. As he said: There should be at least a 30 day interval between the request for an election and the holding of an election . . . in which both parties can present their viewpoints. . . . . The 30 day waiting period is an additional safeguard against rushing employees into an election where they are unfamiliar with the issues. Again, that was a quote by Senator John F. Kennedy. Fairness to the employees--that is what Senator John F. Kennedy was talking about. The 30-day waiting period provision he supported did not ultimately become part of the law, and, obviously, it is not a law today. Instead, the NLRB adopted a practice of a 25-day waiting period in almost every case. But this caution about the need for employees to have a chance to become familiar with the issues is just as true today. Employees who are not aware of the organizing activity at their worksite, and even those who are, need to have an opportunity to learn about the union they may join. They will want to research the union to ensure it has no signs of corruption. They will want to know how other work sites have fared with this union and whether they can believe the promises the union organizers may be extending. Employees should have every chance to understand the impact of unionization. For example, they will no longer be able to negotiate a raise individually with their employer. Doing their jobs better than a fellow employee may no longer bring any benefit whatsoever. Union rules may even hinder sales. I once had an opportunity to visit a shoe factory. I was in the retail shoe business, and we visited a shoe factory. As we went through it, I saw some boxes of some of the shoes we normally carry and was kind of interested in what the new fashion looked like. So I went over and opened a box, and the roof caved in. Not actually, but it seemed as if the roof caved in because it had to be somebody who had union authority to open that box. It couldn't be the supervisor. So I actually shut down the factory for about 30 minutes just by picking up a box to look at the shoes that were probably going to be coming to my store at one point in time. Grievances cannot be brought straight to the employer but will, instead, have to go through the filter of union management. Once the union is certified, the National Labor Relations Board has instituted significant restrictions for when it may be decertified; in other words, when the employees can fire a union as their representative. Employees are barred from petitioning for decertification for a full year after the election and barred as well throughout the term of the collective bargaining agreement. So there is a very small window in which employees have any opportunity to get rid of a union they do not support. They are going to be rushed into judgment, and then they are stuck with it. Four decades ago Senators recognized employees deserved the opportunity to gather this and all other relevant information before casting their votes. Unfortunately, the NLRB is choosing to ignore this caution, and rank-and-file employees will suffer. Fairness to the employee? This situation is exactly what the Congressional Review Act was intended for. When an agency takes regulatory action that is not supported by the people and their representatives, the Congressional Review Act gives Congress the chance to repeal that regulation. In this case those advocating for the rule are doing so because they cannot pass the bill they really want, which is card check. Card check is where you have people go in and stand over employees' shoulders while they check a box that says they want to be in a union. Then, with enough signatures or enough boxes checked, there is no secret ballot election. So many have referred to this as ``back-door card check''-- this particular NLRB regulation--and for good reason. Both proposals seek to restrict all communication with employees prior to a union election for union organizers only. Under both scenarios, employees are likely to hear only one side of the story, and employers can be cut out of the process altogether. But the other side could not pass card check because once the American public found out about what they were trying to do, they objected. It took a little while because the card check legislation was deceptively named ``The Employee Free Choice Act.'' In reality it would have forced employees into the exact opposite of free choice. Any Senator who opposed this card check legislation should also be voting for this resolution to stop ambush elections. Another reason the Congressional Review Act was designed for just this situation is there is simply no other way we would be allowed to have a vote on this issue in this Senate. Back in December, the House of Representatives passed Chairman Kline's legislation that would have effectively killed the ambush election regulation and codified a 35-day waiting period before an election. The Workforce Democracy and Fairness Act was passed with bipartisan support, but it has no chance of being called up for a vote in the Senate. So this vote is the one chance Senators will have to stand up for employees and small businesses that want fairness. By any measure, the current law and certification system provides that fairness. The National Labor Relations Board keeps data on elections timing and sets up annual targets to process elections and decide complaints swiftly. Last year, they exceeded two of those targets and came within three-tenths of a percentage point of meeting the third. There is simply no justification for this regulation. Last year, initial elections and union representation elections were conducted in a median of 38 days after the filing of the petition. Almost 92 percent of all initial elections were conducted within 56 days of the filing of the petition. Not only are the vast majority of elections occurring in a timely fashion, but unions are winning more than ever. Unions win more than 71 percent of elections--their highest win rate on record. The current system does not disadvantage labor unions at all, but it does ensure employees--whose right it is to make the decision of whether or not to form a union--have a full opportunity to hear from both sides about the ramifications of that decision. This resolution will preserve the fairness and swift resolution of claims which occur under current law. It will not disadvantage unions or roll back any rights. Let me repeat that: This resolution will not disadvantage unions or roll back any rights. What it will do is prevent the small business employers in America from being ambushed and employees from being misled with insufficient information into union contracts they cannot get out of. Under a successful Congressional Review Act disapproval, the agency in question is prohibited from issuing any substantially similar regulation. That means the National Labor Relations Board could not just reissue this regulation and could not finalize many of the other bad ideas they initially proposed. I will be speaking about some of those later on in this debate. Let's not wait for the courts to strike down this rule, as they have the NLRB's other regulatory effort--which would make two out of three in the last 75 years. With the President's appointment of the National Labor Relations Board members when we were not in a Senate recess period, the Senate did not confirm the people pushing this effort-- though, mostly, this was done by previous board members. But with the President's recess appointments in place, the National Labor Relations Board is poised to push forward other bad ideas aimed at helping union bosses, not employees, and not job creators. It is time to stop this agency and level the odds. I am pleased to have 44 fellow Senators cosponsoring this resolution. I will now yield time to other Members who would like to speak in favor of it, first allowing the Senator from Iowa, the chairman of the committee, an opportunity to speak, probably, against it. I yield the floor.

Mr. ENZI

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