Michael Enzi

Mr. ENZI

Mr. ENZI. I have no problem with 5 minutes. I do not think there is anyone in opposition. I will try and keep it under 5 minutes.

Mr. ENZI. Mr. President, I call up amendment number 293, as modified.

Mr. ENZI. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. ENZI

Mr. ENZI. Reserving the right to object, I have to ask one additional question. My amendment would still be pending then?

Mr. ENZI. Madam President, it was my understanding it had been worked out between the Senators, through the staffs, and that is the only reason we put that modification in. These are technical corrections, hoping to be able to have a usable Health IT bill when we finish.

Mr. ENZI. Madam President, I waited for 3 days to be able to make a technical correction amendment. Yes, I will agree to do that. I hope it does not get left out. I think without that amendment, the Health IT portion will not work. It is not anything about money, it is about having a portion that will or will not work.

Mr. ENZI. Mr. President, I believe the pending amendment is the Enzi amendment No. 293, as modified, and I ask unanimous consent that it be further modified.

Mr. ENZI. Mr. President, I thank the Senator from Vermont for his consideration, and I particularly thank the Senator from Minnesota, who is the subcommittee chair for information technology, who has played a very interesting role in this and has made some very good emphasis, and who understands what we are trying to do. So I thank her for all of her efforts too. Mr. President, I ask for an immediate vote.

Mr. ENZI

Mr. ENZI. Mr. President, I ask unanimous consent that a fellow in my office, Gemma Weiblinger, be granted floor privileges for the duration of debate on the stimulus legislation.

Mr. ENZI

Mr. ENZI. We need to pass a bill that will fix housing first. We recognized the problem about a year and a half ago, but Congress has not focused on the housing piece of that and come up with a solution that will work to fix housing. ``Fix Housing First,'' the slogan the Senator came up with, I appreciate the efforts of the Senator from Tennessee and the understanding that he has of this and the ability to pull people together. I thank Senator Ensign for all of the work he has done on a substitute bill. I particularly thank the Senator from Georgia, Mr. Isakson, for an idea that he has seen work before and knows will work again and has done the math on it to update it to today. But we have to fix housing first. That is what started the problem, that is what is continuing the problem, that is what has tightened the pocketbooks of Americans. A realtor from Buffalo, WY, was in my office yesterday. He said the banks do have some money, that they had made 50 loans, they were processing 50 loans at the moment. He said, unfortunately, only two of those were for house sales. The rest of them were all refinancing as the interest rates have come down. Even people who can afford to buy a house are not buying a house because they do not know where the bottom is in the housing market. So until we do something to put a bottom in the housing market and assure people who have bought houses as part of their retirement that their value is not going to go clear through the floor, America is not going to recover from this. People are not going to start spending. It is not Government spending that solves the problem, it is individual spending that solves the problem. And the individuals have stopped spending. Government money spends twice, circulates twice; private money circulates seven times. We have to get the private money, the individual money, the personal money, back into the economy again, and that will make a difference. The crisis began with the decline of housing prices in our Nation, a rising tide of foreclosures from homeowners who could no longer afford to make mortgage payments. The decline in the housing market sent shockwaves through our financial system as everybody realized their triple-A-rated investments looked more like junk bonds. With banks unwilling to lend against assets of an unknown value, our credit market came grinding to a halt. That is where we are today. Now, the original plan of TARP was to buy toxic loans, to get those out of the market, to stabilize the banks. That did not happen. When we work in a hurry to pass something around here, particularly if it deals with a lot of dollars, we can often wind up in a different direction than where we thought we were going. Right now this bill is not focused on housing. It needs to be focused on housing, and focused on housing first. Government spending by itself will not solve the problem. We cannot spend our way out of it. We have tried that before. We tried it in the 1930s. Government interference did not help. So we need to take some of this money and devote it to stemming foreclosures, invigorating the housing market, and getting our financial institutions and individual investors to step back into the market without fear. I have a lot more I would like to say, but I know our time is limited. I would like the Senator from Tennessee to be able to conclude this discussion, conclude the beginning of the long discussion I hope will put housing first. Until we solve housing first, we do not have a solution.

Mr. ENZI

Mr. ENZI. Madam President, I rise today to talk about the State Children's Health Insurance Program, or what folks around here call SCHIP. This program was created by a Republican Congress in 1997 to help low-income kids get health insurance. The program expired in 2007, and Congress has worked to pass temporary extensions through March of this year. I am glad the Senate is now working on a longer term bill to extend this vital program. I am a cosponsor and a strong supporter of the ``Kids First Act,'' S. 326, which extends the current SCHIP program. This bill provides health coverage to low-income kids and will give States the resources they need to continue to operate their SCHIP programs. To help more low-income children get health coverage, the bill provides $400 million over the next 4.5 years for States and other qualified entities to improve outreach and enrollment for low-income children. These funds will target the low-income children SCHIP was meant to help. The bill also enhances private options that provide more affordable and efficient care by encouraging premium assistance so that parents can have enough money for private health insurance for their children. The Kids First Act also focuses on kids, not adults. Some States currently spend SCHIP money on adults when this money was meant for children. The bill takes the money spent on adults and uses it to insure children. The Kids First Act requires that all States phase out nonpregnant adults, including parents, and not allow the addition of any new nonpregnant adults to the program. American children are the top priority and primary focus of the bill I support. The bill maintains existing law, which ensures that scarce resources go to covering American citizens first. The bill does all these things, and it does them in a fiscally responsible way, without raising taxes. An economic recession is no time to raise taxes or expand Government programs and inefficient bureaucracies. I have seen the potential for what SCHIP can do to help low-income kids in my home State of Wyoming. Wyoming first implemented its SCHIP program, Kid Care CHIP, in 1999. In 2003, Wyoming formed a public- private partnership with Blue Cross Blue Shield of Wyoming and Delta Dental of Wyoming to provide the health, vision, and dental benefits to nearly 6,000 kids in Wyoming. These partnerships have made Kid Care CHIP a very successful program in Wyoming. All children enrolled in the program receive a wide range of benefits including regular check-ups, immunizations, well-baby and well-child visits, emergency care, prescription drugs, hospital visits, mental health and substance abuse services, vision benefits, and dental care. Families share in the cost of their children's health care by paying copayments for a portion of the care provided. These copays are capped at $200 a year per family. Wyoming is also engaged in an outreach campaign targeted at finding and enrolling the additional 5,000 kids that are eligible for Kid Care CHIP but are not enrolled. I am proud of the great job Wyoming is doing implementing its program. I also want to note that Wyoming will get the same amount of money under the Kids First Act that I support as compared to Senator Baucus' bill, H.R. 2. Unfortunately, all these descriptions apply to the Kids First Act, which is not the bill before us today. The bill before us today is a very partisan bill that fails to focus on low-income, American kids first. Senator Baucus' bill, H.R. 2, would encourage middle-class families to drop their existing health insurance plans and instead get on the taxpayer dime. That is just not right; we need to put low-income children first. Under H.R. 2, 2.4 million children will lose their private health insurance coverage and be forced to enroll in Government-run programs, where they may not have access to the physician and other health provider services that they need. The bill will also make it easier for both legal and illegal aliens to get covered under SCHIP. Another important big difference is that the taxpayers will get to keep fewer of their hard-earned dollars if this SCHIP bill is enacted. At a time when the country faces a severe recession, raising taxes is not a good solution for any problem. I am disappointed Senator Baucus and the Democratic leadership in the House and the Senate and the White House turned SCHIP into a partisan exercise. Along with the American people, I too was looking forward to change. I was encouraged by President Obama's call for change and was ready to work with him to make sure we could focus on the 80 percent we could agree on. I was also encouraged by my discussions with Senator Daschle when he came before my committee as a nominee to become the Secretary of Health and Human Services. He committed to working with me and the other Republicans on my committee so together, we could work on a bill to reform our health care system. He promised bipartisanship and said he would convince my Democratic colleagues on the committee to work together to develop bipartisan solutions to our Nation's health care problems. Unfortunately, with this SCHIP bill, the Senate is taking a step away from the process Senator Daschle described. The ranking member of the Finance Committee, Senator Grassley, as well as Senators Hatch and Roberts, among other members worked hard for a number of years on a bipartisan bill, but that bill is not the bill before us today. Rather than following the example set by Senators Grassley, Hatch and Roberts, the sponsors of this bill chose to focus on the partisan issues that highlight the 20 percent upon which it is impossible to agree. I hope this is not the first taste of how the next 2 years will be here in the Senate. I will close my remarks, but I just want to remind folks that we can do better. In general, if we work together on bipartisan bills, we can produce a better product. I think the bill before us today should focus on covering low-income, American kids first, and I hope that as we continue working on health care reform, we can work together rather than against each other so we can put the best policies possible before the American people. We can do better, we must do better. Following Wyoming's lead of using the private market, we would insure every American kid whose family is uninsured and below 300 percent of poverty. I think that is a good answer for the family. We can do it without spending more. We can do it so kids are not thrown out mid-year because their parent or parents make a little more. They would be insured all year. So we would increase their eligibility from 200 percent of poverty to 300 percent, $40,000 a year to $60,000 a year, for a family of four and cover every uninsured American kid. But we will see that amendment voted down so statistics will look better. The current bill is a good statistics bill, it increases the number covered dramatically to include adults earning up to $120,000 a year in some instances and it is easier to find more people to sign up, at the taxpayer's expense. No, let's concentrate and force States to find the poor that are lost and neglected. Madam President, I yield the floor, and I suggest the absence of a quorum.

Mr. ENZI

Mr. ENZI. Mr. President, I rise today to comment on Mr. Geithner's nomination to be the Secretary of the U.S. Department of the Treasury. Although I became a member of the Senate Finance Committee only Thursday, I have spent considerable time reviewing the nomination documents and testimony of Mr. Geithner. I also brought to bear my expertise as an accountant and long-time member of the Senate Banking Committee to make a determination on Mr. Geithner's qualifications. After thoughtful deliberation, I voted against his nomination in the Senate Finance Committee. I continue to oppose his nomination today, and urge my colleagues to do the same. The position of Secretary of the Treasury is one of the most important nominations this chamber considers. The Treasury executes the domestic and international economic policy of the United States; our trade policy, the purchase and sale of public debt, regulation of national banks, and of course our tax policy. All revenues of the Federal Government pass through the doors of the Treasury. This position is even more meaningful when we consider the economic condition of the United States today. We are in the middle of a global financial crisis. The U.S. economy is slowing and Americans are losing their jobs, homes, and retirement savings at an alarming rate. The Secretary of the Treasury will be immediately tasked with turning our economy around. This challenge can only be met by the most capable and qualified candidate. Unfortunately, I do not believe that candidate is Mr. Geithner. As chairman of the New York Federal Reserve, Mr. Geithner helped to orchestrate major bailouts for Bear Stearns, AIG, Citigroup, and others. These bailouts have cost American taxpayers billions of dollars. The AIG bailout alone cost $85 billion in September, 2008. Many of the actions taken by the New York Federal Reserve, under Geithner's leadership, were beyond the purview of the Emergency Economic Stabilization Act and taken without the explicit consent of Congress. The money used in these bailouts was spent without transparency or accountability. They were also spent on corporate retreats and executive compensation instead of loans to thaw our frozen credit markets. Mr. Geithner's career at the New York Fed should be described more as a financier of Wall Street than as a steward of American monetary policy. I am apprehensive about supporting the nomination of someone who puts shareholder interests above the needs of hardworking taxpayers. Mr. Geithner has also failed to provide specifics about his plans to use the remaining $350 billion in TARP funding. His testimony before the Senate Finance Committee last week displayed the same urgency and strong language as former Secretary Paulson's testimony before the Senate Banking Committee in September. Soon after, however, we saw that money spent in ways unaccountable to and unintended by the U.S. Senate and the American taxpayer. Measurable goals and clear direction are absolutely required if American taxpayers are to fully understand how and why their money is being spent to assist failing banks and companies. So far, Mr. Geithner has provided neither. I have not and will not support massive Government intervention to rescue private industry. Finally, I believe Mr. Geithner's failure to pay $34,000 in Social Security and Medicare taxes is inexcusable. The Treasury Secretary is in charge of the Internal Revenue Service and the enforcement of our Nation's tax code. As one of my colleagues already noted, ``How do I explain to my constituents that I voted to confirm someone who will make them pay taxes, but sometimes does not pay his own taxes?'' This negligent behavior deserves more than a simple slap on the wrist or half-hearted apology before a Senate committee. In previous years, nominees for positions that do not oversee tax reporting and collection have been forced to withdraw their nomination for more minor offenses. They have been ridden out of town on a verbal rail. They have been forced to withdraw. The fact that we are in a global economic crisis is not a reason to overlook these errors. It should be a reason to more closely scrutinize Mr. Geithner's record and his judgment. The Treasury Secretary makes policy decisions every day that impact the global financial markets and put America on a new economic path. These decisions are often made without the explicit consent, or even knowledge, of those outside the administration. While the Senate cannot scrutinize and debate every decision the Secretary makes, it is our duty to ensure the President's nominee has the character and judgment necessary to perform these duties successfully. Mr. Geithner's past negligence casts doubt on his qualifications in this regard. Some of my colleagues in the Senate have argued that, despite these concerns, President Obama should have his choice of economic counsel confirmed because he is the President. I respectfully disagree. We are charged with the advice and consent of nominees under the Constitution. Are we saying there is only one person in the whole world qualified to handle the situation as it is today? With the broad authority granted to the Treasury Secretary and the enormous challenge facing the new Secretary to right our country's economic ship, President Obama's choice impacts every American in a very personal way. The Senate would not be doing its duty if we simply confirmed this nominee without addressing these issues. Many of my constituents are asking, ``Are you seriously considering putting someone who failed to pay their taxes in charge of the department which controls the IRS? You couldn't find anyone better?'' Yet that is exactly what we are doing. Many of your constituents are asking the same thing, but my voice seems to be one of the few of dissent. But that is not why we have a Senate. The Senate is not supposed to be a group of ``yes men'' rubber stamping everything the executive branch sends us. We are supposed to stand out, stand up and reason during the rush. We are supposed to think and then act based on understanding and knowledge. We are not doing so today. Mr. President, I intend to vote against the nomination of Mr. Timothy Geithner as Secretary to the U.S. Department of the Treasury. The Senate needs more time to fully address the problems I have identified and debate Mr. Geithner's qualifications. I respectfully urge my colleagues to vote no. I yield the floor and suggest the absence of a quorum.

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

Mr. ENZI

Mr. ENZI. Mr. President, I have offered amendments Nos. 28 and 29 and they respond to the question many have asked about the underlying bill. Those of us who have looked at the bill have wondered what a particular provision means. This provision appears to greatly expand the number of people who can bring a Title VII lawsuit beyond those who have directly experienced discrimination. As drafted, the bill extends the right to sue for employment discrimination, not only to the person who is discriminated against but also to any individual who is affected by application of a discriminatory compensation decision or other practice. This can clearly be read to include spouses, family members, and other individuals, depending on the employee's income or pension, or even more broadly. There is a lack of definition in this part of the bill. In this part of the bill that we are debating, I am trying to amend to add some clarity, and Senator Specter will be trying to amend if mine fails to again bring some clarity to this issue. These are steps to see how expansive we can make the trial lawyer bailout. So S. 181 would not only allow decades-old claims to be suddenly revived, it doesn't even require that they be revived by the person who was discriminated against, even if that person won't bring the action or even if that person is no longer around. The language is so broad that the claim could be brought by virtually anyone. It is nothing more than an invitation to trial lawyers to litigate a situation compounded by the fact that such claims would be largely indefensible because of the passage of time, maybe not even having the person around who was discriminated against. Do we really want to see employers forced to expend resources defending decades-old, stale claims that are not even being brought by the individuals who are the supposed objects of the discrimination? What we are looking at here could be an exponential increase in lawsuits at a time when many employers are struggling to make their payroll and avoid laying people off. It was reported this week that a certain type of employment-related class of lawsuits have increased 99 percent over the last 4 years--just the last 4 years, a 99-percent increase. If enacted as drafted, this bill could make that increase seem minuscule. Our new President has made some proposals intended to stimulate the economy. One proposal he made at one point was to offer a $3,000 tax credit to employers who create new jobs. Perhaps that was a great idea, but if you couple that with increased litigation liability such as that included in this bill, it will not only cancel each other out, it would make that tax credit seem minuscule, very small, particularly when you compare it to the cost of a lawsuit. A small businessman faced with a lawsuit that is going to cost him $20,000, $25,000, $100,000 to defend cannot afford the time or the money to do that and may work harder at a settlement and encourage people to do lawsuits that may not have the same merit we are trying to achieve in this bill. I can tell you as a former small businessman, I would rather not have the tax credit and not get sued any day--not that the two are even related. I hope the bill's sponsor can explain why this provision should be included in the bill. It is the sort of question that might have been sorted out more easily if the bill had gone through the proper committee process. But the majority has opted to circumvent that process again. My amendments would strike the provision entirely. I understand there might be some, and I am sure we will hear some explanation of it, where there might be some instances where there were special circumstances. But this bill goes well beyond just special circumstances. It opens it up dramatically. I look forward to a debate and vote on my amendment later today. We also will be voting on two amendments that Senator Specter has offered to improve the underlying bill. I will use some of my time to speak in favor of those amendments as well. Senator Specter's amendment No. 26 shows there is justifiable concern among many Members that allowing individuals to go far back in time and claim that pay decisions made years ago were discriminatory does place unfair burdens on employers. Senator Specter's amendment No. 26 provides a small measure of potential relief to employers who must face the daunting task of trying to defend decisions made in the distant past by individuals who may not be available and based on documentation that no longer exists. We will have to increase the amount of time that we expect people to keep all of their records if this bill goes through the way that it is. Senator Specter's amendment makes it clear that an employer in those circumstances may still raise traditional equitable defenses to those claims, such as the defense of laches. For example, if an employer can demonstrate an employee knew or should have known the allegedly discriminatory nature of a pay decision made years ago, but lets the claim slip, then it may be barred if the employer is hindered in mounting a fair defense because of the passage of time. The proponents of S. 181 have said repeatedly that it is not their intent to limit employers in their use of equitable defenses. Accordingly, they too should support Senator Specter's amendment. It would restore a small measure of fairness in employment discrimination litigation. I commend Senator Specter for offering it. I support the amendment in full. I urge my colleagues on both sides of the aisle to look at it and support it. Senator Specter's amendment No. 27 has also offered another amendment to improve the underlying bill which deserves full and fair consideration from colleagues on both sides of the aisle. We know Senator Specter has been very involved in judiciary work and that he does reasonable amendments and is concerned about some of the implications of the bill. He has offered another amendment to improve the underlying bill. I hope we will give that a careful look. I have been clear that I am troubled by the fact that this bill effectively eliminates the statute of limitations from employment discrimination claims since I believe that statutes of limitations do serve an important function. They speed recovery to the victims of discrimination, as well as ensure fairness in our legal process and accuracy in the resolution of disputed claims. The important role they play demands that any effort to change or eliminate the statute of limitations be carefully defined and clearly targeted at the precise problem the legislation purports to address. As presently drafted, S. 181 does not come close to achieving this standard. Senator Specter's amendment does much to correct this very problematic lack of precision. The proponents of S. 181 have been careful to note that the concern which they seek to address by this legislation relates to ``discriminatory pay decisions.'' The language of the bill, however, is much broader. The bill would not only eliminate the statute of limitations with regard to discriminatory pay decisions, it would also do so with respect to any ``other practice.'' However, this legislation nowhere defines what is meant by ``other practice.'' Virtually all personnel decisions--promotions, transfers, work assignments, training, sales territory assignments--affect an individual's compensation, benefits, or their pay. It appears that the other undefined ``other practices'' language would extend liability far beyond simple pay decisions to include anything that might conceivably affect compensation. This would include claims of denied promotions, demotions, transfers, reassignments, tenure decisions, suspensions, and other discipline, all of which could be brought years after they occurred and years after the employee left employment, and, without my amendments, be brought by other people. The phrase could also potentially embrace employment decisions with no discriminatory intent or effect. This result is plainly an overreach and goes far beyond the publicly stated aims of this legislation's proponents. Defending a claim based upon a pay decision made years and years earlier is a heavy burden. Reaching back years and years to defend the dozens of other personnel actions an employer takes every day is an impossible burden. Senator Specter's amendment limits the reach of S. 181 solely to discrete pay decisions and makes clear that S. 181 does not apply to any other personnel decisions. While I believe it does not cure all the ills which S. 181 creates, it does put this very problematic interpretation to rest, and I support his effort and amendment. I heard many on the other side of the aisle state that S. 181 has been fully vetted because two hearings were held on it last year. I point out that the HELP Committee hearing was held before Senator Hutchison offered her alternative legislation, her ``better Ledbetter.'' Neither hearing covered this or any other alternative means to accomplish the goal on which we all agreed. If we had been able to explore alternatives in a hearing and have a markup--and a markup is a point I keep emphasizing--I believe we might have come to a change in the legislation that would more clearly state what is trying to be done and wind up with an agreement on both sides which would greatly reduce the amount of time that it takes to do amendments. The amendments, again, are done up or down rather than having slight revisions that could perhaps make them palatable to both sides. Our side has turned in amendments that are relevant, that are designed to hopefully improve the bill, and do it in a way that it does not eliminate the purpose of the bill. There could have been a lot of constructive work in a committee markup, but that is not the choice, so we will continue to proceed and we have been proceeding with amendments. I yield the floor.

Mr. ENZI. Mr. President, can you tell me what the time agreement is?

Mr. ENZI. Mr. President, I wish to call up amendment No. 28 and ask unanimous consent that as soon as we have disposed of amendment No. 28, that we will voice vote amendment No. 29 based on the decision of amendment No. 28, because there are two different sections of the law that say the same thing. So we have to have both pieces, but if one is acceptable, the other one ought to be acceptable. If one is not acceptable, the other one should not be acceptable. So I know it is a change in parliamentary procedure, but I am trying to speed things up by having as few votes as possible but still get the decisions made.

Mr. ENZI. Mr. President, I yield such time as the Senator from Georgia needs, but first I wish to make a very brief comment. The Senator from Maryland kind of makes the point I have been trying to make through all of this. If there is wording that more clearly states the Senate's intention or Congress's intention, and since there is disagreement over how widely this affects people, had we gone through a committee markup, we would have already covered this and would have found more careful wording that would have done what I think both of us are talking about. So again, that is why we should send them to committee. I yield time to the Senator from Georgia.

Mr. ENZI. Mr. President, I thank the Senator from Maryland. I have always appreciated working with her on issues. We probably wouldn't have completed the Higher Education Act if it had not been for her diligence and expertise and ability, and this is a bill on which she has expertise and ability. It hasn't gotten all of the viewpoints of all of the people on the committee, let alone all the people in this Chamber, and that is what we are trying to get to. There isn't anybody in this Chamber or probably on the other end of the building who isn't for equal pay. That is the law. If anybody knows of a situation where that is not occurring, let any one of us know, and I bet you we would help to right the wrong. We are against discrimination. But we are also against discrimination against the small businessmen who have to sometimes interpret our laws, figure out what we are saying, and become some of the precedent setters on some of the fine points that we don't even address. That should not happen. It is very expensive for them. What they are trying to do is put out a product or service and get compensated for it so they can compensate their employees. There are a lot of decisions they have to make to be able to do that. Fairness is one of them. This 23-cent pay differential that keeps coming up--and that is wrong--is why we had a fantastic hearing in our committee about why that happens. That is because different jobs--not the same job, different jobs--pay different amounts. The ones with more risk apparently pay more. The ones with more risk are nontraditional jobs for women. One of the people who testified had taken a course to become a mason, a rock mason, to do rock work. Her first rock work was, of course, at ground level. Later, she was installing big sheets of marble on the outside of skyscrapers. She went through how her compensation changed as she did these different jobs. That is a nontraditional job for a woman, but she is being paid more than most men in this country now. That is what we have to do. We have to provide the encouragement, the skills, and the training to be able to perhaps do nontraditional jobs. I have tried to get this Workforce Investment Act through for the last 5 years. We passed it through the Senate once unanimously and were never able to get a conference committee on it with the House. Since that time, it has just languished. That would provide skills training to 900,000 people a year. It is criminal we do not pass that. That would solve a lot of the 23-cent gap we are talking about. That is not equal pay for equal work, that is higher pay for different work. But we need to have people trained to do that work, and we need to provide the training to do that work. That will solve a lot of the 23-cent gap. But as long as we are encouraging people to do the traditional jobs, and we are not providing them with the training, we are relegating them to a gap. I guarantee it is bigger than 23 cents. That is the average. That is the way it works out across this country, which means some are making more and some are making a whole lot less. We do not want that to happen. I want everybody to be clear. Nobody wants to have unequal pay for equal work. What we have tried to do, since we can't, as in a markup, sit down with the people who have the common interests in some of the parts of this that we have questions about and work out something that everybody agrees with that, from the perspective of those people in the room, solves the problem we are talking about--we have been doing that in the HELP Committee. We have been doing that on a frequent basis. We have even been so agreeable in the committee that a lot of times we will have some amendments that people are concerned about, and we haven't been able to reach an answer by the time we get to markup, but we know that is a problem, and we say we will get that solved by the time it gets to the floor, and we do and it doesn't take much floor time. The reason I brought up this amendment is that I think it is far too broad. I have not had a chance to review the specific cites that the chairman has brought up. I would like to be able to do that, but we are not going to have that time either which we would if we had a normal amendment markup--but S. 181 adds a new undefined term to title VII, and that is ``individual''--this ``affected individual'' will be permitted to sue under S. 181. But we do not know what the term means. Does it include spouses, et cetera? Why didn't the bill's sponsor use a defined term such as ``person.'' This bill, as drafted, leaves the door open to lawsuits from people other than the employee. My amendment shuts that door. Maybe it is not the most effective way, but we have not had the opportunity to sit down and look at these different perspectives, look at these words, make sure we have it defined right, make sure we have the right ones in the bill. That always disturbs me. We are trying to solve a problem, a problem that is real, and we are trying to do it in a way that is fair to everybody. ``Everybody'' means all the employees and the employers and do it in a way that we will get the right information. If this opens the door to other people, even without the permission of the person who was affected in some cases--families take things much more personally than the individuals do usually. I know in campaigns it is the families who get upset when they see one of these terrible ads on television and they hold the grudge longer. They do not understand it the same way the candidate does. The same thing happens in the workplace--and I am sure it does. If a person comes home from work, and they are upset and they complain, the family takes it personally. That is a help to the employee. They need to be able to voice these things and have somebody who acts as a sounding board on it. But the family always continues the grudge longer. I can tell you this bill allows those people to go ahead and open the door and sue on behalf of the person who came home with the grudge, even if that person is not willing to sue because they can be affected. There are ways to fix this, but I contend that just doing it through these votes on the floor probably is not going to do it. I yield the floor.

Mr. ENZI. Mr. President, I have made this point a number of times, that bills that go through committees have a markup and the amendments give us direction. We often get them worked out. That did not happen on this bill. So we are trying to get some clarification done. I appreciate that the Senator from Maryland put some things in the Record that show legislative intent. I prefer to have it in the bill. That is why my amendment is in here. It is an attempt to remove some of the legal uncertainty this bill will create. It will clarify who is able to sue under title VII. Under my amendment, only the person who has experienced discrimination can bring a lawsuit. Without my amendment the door is left open to any affected individual. This is an undefined term in the statute. Senator Mikulski and I have had some back and forth about what the language means. The truth is, without my amendment the courts will be able to define the term any way they want to. If you want to ensure that only the person affected has standing to sue, then support my amendment.

Mr. ENZI

Mr. ENZI. Mr. President, I would also like to speak in support of Senator Isakson's amendment No. 37. This amendment is about basic fairness. We have been talking a lot about fairness during consideration of this bill--fairness for employees who suffer discrimination and don't realize it before a legal deadline passes, and fairness for an employer who may have done nothing wrong but becomes a target of an ambitious trial lawyer eager to test new legal theories. The question many people ask when looking at what the underlying bill would do is how is it fair to sue a businessperson over something that may or may not have happened in his or her company decades earlier? What is a businessperson to do if the person who is alleged to have committed the discriminatory act no longer works there or, perhaps, is deceased? Anyone can recognize the difficult position this creates. How do you prove something didn't happen years ago when the only witness other than the accuser is absent? Senator Isakson has come up with a very equitable solution to this riddle. He recognizes that, if this bill is enacted, employers will have to keep a far more detailed record of every employment decision, every performance review, every personnel action, and more. The bill retroactively re-opens liability for dozens of years of employment decisions. Upon enactment of this bill, employers will be on notice that the statute of limitations for title VII cases virtually never expires. But it simply isn't fair to apply this new open-ended statute of limitations to employment decisions that occurred decades ago. Senator Isakson's amendment resolves this inequity by applying the new law on a prospective basis. As a former small business person myself, I believe this is the only fair way to apply a new and burdensome standard. I urge my colleagues to support this amendment.

Mr. ENZI

Mr. ENZI. Mr. President, I ask unanimous consent to set aside the current amendment so that I may offer two amendments, amendments Nos. 28 and 29, and then return to the pending amendment.

Mr. ENZI. Mr. President, I rise to speak in support of the Hutchison amendment. Before I do that, I want to voice some concern, again, about the process we have gone through on this bill and that we might be going through on others. I just came from a health care meeting where we are, in a bipartisan way, trying to reform health care. That is being done the right way. We have a task force and the task force has set down principles and questions. Those of us on the task force are returning to Members of our side of the aisle and gathering their input, answers, and additional questions. We will keep going through this process until we have hammered out the principles. Then we will start putting substance in it. Then it will go to the two committees of jurisdiction. That makes it a lot more difficult than most bills. It will go to both the HELP Committee for the health policy portion, and then it will go at the same time to the Finance Committee for the way to finance what we are talking about in the policy. We did this on the pension bill. That was a 1,000-page bill that only took up an hour of floor time while we debated two amendments, had those two votes, and a final vote. That is the simpler way of doing bipartisan work that winds up with an actual result. So often here we spend all of our time debating the 20 percent we don't agree on and fail to look for any kind of a third way of doing something that solves the problem we started out on originally. This is not a very conducive atmosphere to negotiate anything. It is not a negotiation. It is a lay down your amendment, have it voted up or down, and because there can't be any nuances in it, the hundred voices are not heard. The voices of the constituents of the 100 people who serve here are not heard. We vote down a lot of things. Occasionally, we vote for something. But usually, what is brought to the floor is done so without any kind of a real set of principles, let alone consensus, and thus, never makes it through the body. I know there have been some changes in majority and minority. That will still hold true, and I appreciate the majority agreeing that there will be amendments and that I got to offer two amendments that we will be debating and voting on later, I hope. This is kind of a test to see if we are going to do anything in a bipartisan way, and to see if we can do it from the floor of the Senate rather than in committee. This has not had a committee markup. This has not had the voice of the 23 people working, in some detail probably, through a couple hundred very detailed amendments, and that would be resolved between the Members. That is the most effective way to address the issue and to get it resolved. The issue that was raised is, what if an employer discriminated against an employee because she was female and paid her less than male colleagues doing the same job with the same skills and experience? That is terrible. Such conduct by an employer has been illegal for 45 years under one statute and 46 under another. But like virtually all rights of action, it has to be exercised within a statute of limitations. So this bill's supporters ask: What if the employer hid the information the employee needed to realize she was the victim of discrimination and she missed the deadline to sue? We don't want that to happen, and courts have dealt with that issue by extending the statute of limitations on a case-by-case basis through the use of estoppel and equitable tolling. The reason this was not applied in the Lilly Ledbetter case was because there she stated in court proceedings that she was aware of the pay disparity many years before she brought the lawsuit. But putting her case aside, I can certainly agree that the statute of limitations should be extended, particularly in cases where an employer has deliberately hidden the fact of discrimination. Senator Hutchison's amendment does just that. It codifies the discretion courts have applied for years. Under the Hutchison amendment, individuals who, because of conscious concealment or simple lack of information, are not aware of discrimination are not prevented from filing and pursuing their discrimination claim, even if it is well beyond the statute of limitations. Here we have an amendment that would provide some statute of limitations but takes care of that case where somebody illegally hides information or where it isn't the normal course of business to get that information. I wish to review what the Hutchison amendment does not do. It does not eliminate the statute of limitations for all employment discrimination cases and thereby create a litigation bonanza. It does not eliminate the incentive for employees to air and resolve concerns about whether they are being treated fairly in the workplace. It does not open up standing to bring employment discrimination cases to individuals other than the affected employee. That is an important part right there. In the bill we are talking about, I know we would have extensive committee discussion about other affected parties. Who would they be? How long could they make a claim? Can it be generations later? Does it have to be at the time of death, while the person is still working there? We can't tell from the bill, but other affected persons is anybody the person may or may not be related to who could be affected by the decision. Can you think of anything broader than that? Don't you think that ought to be pulled back a little bit? Again, we didn't talk about principles. We didn't go through committee. We didn't put in multiple amendments that could have brought up some of these points, so here we are on the floor of the Senate kind of doing up-or-down amendments and I am sure arriving at things that, even if they pass, will come to raise a lot of questions in a very short period of time. That is not what we are supposed to be getting done for the American people. The Hutchison amendment does not present a direct threat to our already struggling defined benefit pension system. The more strain we put on that, the less people are going to do it, and we want people to have pensions. So for all of those reasons, I will support Senator Hutchison's wise and effective approach, one that could probably be negotiated finer and done more carefully, but that would be committee work. I will support it because I think it is a wise and effective approach that will ensure that no one loses the right to sue because they didn't have the information to realize they were being mistreated. That is our goal. While I am expressing strong support of S. 166, which is the Hutchison alternative, and I spoke on this matter earlier, I continue to express my deep concern shared by most of my colleagues about the way the bill has been handled. I will keep bringing that up on this and every bill that skips the process. By circumventing the regular order and not subjecting this legislation to the committee amendment process, I believe it has inadequate review and debate and no opportunity for a measured consideration of other means of achieving its same stated legislative goals. That is a process which should be done in committee, not attempted to be done on the floor. However, that is the route that is being forced on us, the minority, so that is the route we will have to follow now. We hope this is not a precedent-setting bill--or precedent- setting process. It definitely will be a precedent-setting bill regardless of whether it is S. 181 or S. 166. Yet when we compare the substance of S. 181 with that of the Hutchison bill, it should be clear the legislation has suffered from a lack of process and the review and scrutiny it needs and could bring. Now, we should begin by first keeping clearly in mind the harm which S. 181 was purportedly designed to address. The problem is a simple one. Title VII requires that the victims of employment discrimination must commence a legal claim within 180 days of the act of discrimination, or in the case of a series of discriminatory acts, within 180 days of the last act in the series. I should note that in most States the limitations period is actually 300 days. But in Mrs. Ledbetter's home State of Alabama, it is 180 days, so I will use that number in my statement today. When title VII was drafted, Congress consciously used the 180-day period because they wanted to ensure that all claims of employment discrimination were raised immediately and remedied quickly--get the relief to the person right away. However, what happens if the victim does not know he or she has been discriminated against? There are a lot of possible examples of this. Suppose an individual who is a member of a racial minority applies but is not selected for a job bid or a promotion yet learns, more than 180 days after being denied the job, that it was awarded to a White applicant with the same or lesser qualifications? Or suppose a female worker receives a wage increase but does not learn until well beyond 180 days from when she gets the wage increase that she has received less than her male peers? She may not know she is being compensated less because her employer has intentionally hidden those facts or simply because employees may simply not know such information. In either case, the result is the same--the employee, through no fault of his or her own, simply does not know they may be the victim of discrimination until well beyond the 180 days from the time they received their wage increase or lose their job bid. Let us be completely clear. I do not believe there is anyone who believes an employee in any of those or similar circumstances should lose the right to file a discrimination claim because they did not have the necessary facts and did not have any reason to know they were being discriminated against before the 180 days passed. This was precisely the problem that S. 181, the Ledbetter bill, was allegedly designed to address. If that were actually the case, I would vote for the Ledbetter bill. But the Ledbetter bill goes way beyond addressing the kind of situations I have outlined here--so far beyond that it creates new problems that make supporting it impossible for me and many other fair- minded Members. By contrast, the Hutchison bill directly addresses and solves the very problems I have outlined. Under the Hutchison bill, the denied job applicant who did not learn the facts until long after his bid was denied or the female worker who did not know her wage differential compared to her male peers, either because of conscious concealment or simple lack of information, are not prevented from filing and pursuing their discrimination claim, even if it is well beyond the 180 days from when they got the raise or did not get the job. The Hutchison bill does this by making the 180-day period a flexible one that can be readily extended in the kind of cases I have mentioned. On the other hand, the Ledbetter bill does this by eliminating the 180-day limitation period completely. The Hutchison bill is a rifle shot to solve a problem that everyone agrees must be solved. The Ledbetter bill is a shotgun blast that causes collateral damage to important safeguards in our system of laws. Limitation periods, such as the 180-day period for Title VII employment discrimination claims, are a feature in every law that grants the right to someone to bring a legal action against someone else. They are universal because such limitations serve two very important purposes. First, the existence of a limitations period is an inducement to those who have claims to seek redress promptly. All of us have an interest in a society where the laws are promptly enforced and, where the beneficiaries of those laws are promptly protected and promptly compensated. This is particularly true in the area of discrimination where society benefits best when discrimination is immediately exposed and immediately remedied. It may affect more than just the one person. Second, limitations periods serve to ensure fairness in our litigation process. The simple truth is that the more removed in time an event is, the less likely anyone is to remember it clearly or accurately. In a work setting, those who made compensation decisions 5, 10, 20 years ago, may no longer be around. And even if they are around, how could they possibly remember with any accuracy the basis for the decisions? Under our Tax Code, records are not kept nearly that long for individuals or for businesses. The inability to fairly defend against a claim and the inability to develop reliable evidence are the exact reasons why laws invariably contain a limitations period. Limitations periods are why someone cannot come along and try to sue you over an automobile accident that took place 20 years ago, or commence a legal action to take your house away because of a claimed defect in the title that is decades old, and why the Government cannot pursue actions against citizens that have become stale with time. But S. 181 would do away with such limitation periods in employment discrimination cases and allow individuals to reach back in time to raise claims about which there is no fair chance to defend, no evidence of any value, and possibly nobody who was even there. We do not have to do this to address the concerns raised by the proponents of S. 181. Senator Hutchison's bill addresses those concerns completely. S. 181 has a number of other problems which will be explained by my colleagues as we proceed to this bill, such as the potential to severely destabilize defined benefit pension plans and the expansion of individuals with standing to sue under civil rights laws. These are normally the kind of discussions we would have in the committee of jurisdiction, which in this case would be the Health, Education, Labor, and Pensions Committee, where our members and staff are well-versed in employment laws. However, the majority's actions will require us to have those discussions on this floor. It is not the way I want to do it, and it is not the way the American people expect us to do business, and it is not the way we will get things done. Now, on this bill a vast number of people voted to proceed to the bill, and we all waived the 30 hours that could have been required before we could even make the first amendment. It was a nice concession on both sides; speeds up the process. But there are a number of opportunities--if the process were to get jammed--that huge hours can be added to the deliberations on this bill that do not need to be, that would not have been, probably, had it gone through the committee amendment process. I just cannot emphasize enough how important that is to me. I made sure it happened when we were in the majority. I am hoping it will happen on future bills while I am in the minority. Cooperation around here gets a lot more done, and that is what the American people expect of us. I yield the floor.

Mr. ENZI

Mr. ENZI. Mr. President, I support the pending nomination of Mr. Arne Duncan to be Secretary of Education. I had the opportunity to meet with Mr. Duncan earlier this month, although I have been aware of his work in Chicago for a number of years. What struck me the most is his focus on doing what is best for the children and his belief that every child can succeed regardless of their background. During his confirmation hearing in the Health, Education, Labor and Pensions--HELP--Committee, Mr. Duncan was asked about what he had accomplished in Chicago as the CEO of the Chicago Public Schools. His support for charter schools, public school choice, performance pay for teachers and school leaders was highlighted at the hearing. He described how he had closed low-performing schools in Chicago because they were not providing children the education they needed. He also spoke of the important role teachers have and how we need not only to attract but retain quality teachers. He believes that children have one chance to get a good education, and as adults we need to make sure they have that opportunity to learn and achieve. Historically, education has been a bipartisan issue. The HELP Committee has an excellent track record for getting bills passed and signed into law as a result of a strong bipartisan process. Mr. Duncan did not hesitate to commit to establishing and maintaining a cooperative working relationship with all Senators on the HELP Committee, Democrat or Republican, by promptly responding to any written or phone inquiries, sharing information as soon as it becomes available, and directing his staff to do the same. He also agreed that regulations promulgated under his direction should be based on legislative authority. Despite the recognition that it is easier to start something than to end it, he also pledged to target resources on programs that work and to eliminate those programs that don't. The members of the committee were impressed with his answers to our questions, and it was evident from our comments that he enjoys strong bipartisan support. I am hopeful that support will show itself by our vote today. Mr. Duncan is no stranger to the challenges that he will face as Secretary of Education. He understands the important issues that will affect every child and every schoolroom throughout the United States. His track record with a major urban school district is well known. However, I did caution Mr. Duncan that I will remind him regularly and often of the unique challenges that rural and frontier schools and students face. Congress and the Department of Education need to work together to make sure that every school has the tools and the flexibility needed to help students develop the knowledge and skills required to be successful in the 21st century. We cannot afford to have students leaving high school--and college-- without completing their programs of study. Mr. Duncan and I agree that we have to build upon the successes of No Child Left Behind, coordinate efforts across programs including Head Start, career and technical education and workforce programs under the Workforce Investment Act, and reduce the barriers nontraditional students face to obtaining education that will provide the knowledge and skills they need to be successful in the 21st century. Our country's future depends on our ability to reach this goal. It is no secret--good skills lead to good jobs. Maintaining those skills through a lifetime of learning will lead to a good career. Mr. Duncan understands this and the fact that the workplace isn't what it used to be. In this global, technology-driven economy, school is never out. Today's workplace demands an ever-changing workforce that can adapt to the requirements and skills of the new high-tech jobs that are in such high demand. Keeping workers' abilities current will be vital if they are to continue to find the kind of good jobs they will need to support their families and maintain a consistently high standard of living. I was pleased to see that Mr. Duncan supports the role community colleges can play in providing this education and training and understands the need to support and accommodate the growing population of nontraditional students in our postsecondary education institutions. I am pleased to be able to join the distinguished chairman of the committee, Senator Kennedy, in supporting the confirmation of Mr. Duncan to be the next Secretary of Education. Today, this body has the opportunity to confirm an excellent nominee with the skills, experience, and commitment to help students of all backgrounds throughout their lives achieve their own version of the American dream. By confirming Arne Duncan as the next Secretary of Education I am confident that we will have an effective advocate for education and who will work to meet the lifelong education needs of our children and students of all ages. I intend to vote in favor of Mr. Duncan's nomination to head the Department of Education, and I urge my colleagues to do the same. Nomination of Peter R. Orszag

Mr. ENZI

Mr. ENZI. Madam President, I ask unanimous consent that the Senator from Maryland get an additional 2 minutes and I have 4 minutes.

Mr. ENZI

Mr. ENZI. Madam President, for the past 2 weeks, I have been patiently waiting for what everyone in this chamber knew was inevitable. When the Senate passed the Emergency Economic Stabilization Act on October 1, 2008, we included a stipulation allowing the disbursement of the final $350 billion only upon the President's request to Congress, and after Congress had been given an opportunity to pass a resolution of disapproval preventing release of the funds. We did this to provide a chance to thoroughly assess the program, make changes, and get our country's economy on the right track again. Although I voted against the act that created the Troubled Asset Relief Program, the TARP, I was pleased that this provision was added into the final bill. Many of my colleagues and I thought, optimistically, that the TARP would work better than we had predicted. It was even possible, some noted, that we would not have to spend the entire $350 billion final disbursement. Even if it was necessary to approve the additional funds, we would be provided the opportunity to evaluate the program and make it more effective in a rapidly changing market. So in preparation for the President's request, I have been keeping track of the market conditions, following the headlines, and watching the stock market. Yesterday, the Dow Jones industrial average closed down almost 250 points. This is the lowest the market has closed in 2009, and the biggest drop since December 1, 2008. Jobless claims have increased since the holiday slowdown. The U.S. Department of Labor statistics on unemployment released today indicate that the recession is getting worse and that those companies we were trying to save with the TARP program are cutting more workers than predicted in order to stay afloat. These are the same workers who have seen a lifetime of retirement earnings shrink to nothing. Others have lost their homes, their most stable financial asset in past years, due to rising unemployment and a frozen credit market. For those Americans without a job, they face dismal employment prospects as companies continue to cut their workforces to stay in the black. The companies that employ them are not in any better shape. Headlines this week warned that even the largest financial institutions were forced to take drastic measures to remain viable. For example: ``Citigroup Ready to Shrink Itself by a Third.'' ``Bank of America to get Billions in U.S. Aid, Can't close deal for Ailing Merrill Lynch.'' These developments occur despite $350 billion of taxpayer money already spent, and billions more guaranteed through the Federal Reserve. After more than 3 months, it is time we take a detailed look at the TARP program and ask ourselves, ``Are American taxpayers getting what they paid for?'' Based on my observations, it is clear that we are not. Our economy appears to be in no better shape than on October 1, 2008, when we passed this massive $700 billion emergency bailout, and today the Senate is poised and seemingly eager to send more money out the door. We are throwing good money after bad money, and expecting different results. But without substantial changes to the TARP and measurable, attainable goals, there is no chance of success for this program. Let's be clear, this program has not worked. America is still in the grips of a frozen credit market, and the U.S. Treasury continues to operate this program in a manner never intended by the Congress when we created the TARP. In fact, upon passage of the act, Treasury gave it a different name. The TARP became the Capital Purchase Program and instead of buying troubled assets, the Treasury began buying stock directly from the market. Yet when Congress has an opportunity to put this program back on track, some of my colleagues would prefer to simply give Treasury more money to operate a $700 billion slush fund as it pleases. This is not the time to encourage blind spending and ignore the fundamental problems with our country's capital markets. Now is the time to modernize the TARP, add accountability and transparency, and hold Treasury to its commitment to operate this program the way we intended. It will take more than blind spending to get our economy back on track. That is why I support the resolution of disapproval. My colleagues in the Senate must take a critical look at this program, measure its progress and setbacks, and make changes that will put this money where it is most needed. It is obvious that the first $350 billion has not worked, so why are we rewarding this failure with more money? Instead, let's work on a reform package that will hold Treasury's feet to the fire and get credit flowing through our markets again. We need a program that will put our money to work building construction projects, hiring employees, and operating small and large businesses across the country. We need a program that will bring confidence back to the market. This program must be temporary, and provide a reasonable chance of success for the businesses and the taxpayers who are participating in it. It also must be accountable and transparent. The American taxpayers should know what they are getting with their investment, and to date, they do not. I am willing to work with my colleagues on a reform package that will do all of these things. However, the first step must be to put the brakes on this reckless spending. Doing so will provide us with the opportunity to make the program better, and fulfill our obligation to the taxpayers funding this program with their hard-earned money. I strongly urge my colleagues to vote in support of the resolution of disapproval.