Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I come to the floor to speak in opposition to the motion to invoke cloture on the nomination for the DC Circuit nominee Cornelia Pillard. Although her record makes clear that her views are well outside the mainstream on a host of issues, I am not going to focus any attention on those concerns today. I am going to focus instead on the standard the Democrats established in 2006. Based on that standard, the court's caseload makes it clear that the workload simply doesn't justify additional judges, particularly when those additional judges cost approximately $1 million per year per judge. I have walked through these statistics several times now, and I am not going to go in depth again. The bottom line is the data overwhelmingly supports the conclusion that the DC Circuit is underworked. Everyone knows this is true. That circuit does not need any more judges. Take, for instance, the appeals filed and appeals terminated. In both categories the DC Circuit ranks last, and in both categories the DC Circuit is less than half the national average. To provide some perspective on this point, compare the DC Circuit to the Eleventh. After another judge took senior status about a week ago, both the DC Circuit and the Eleventh Circuit have eight active judges. If we don't confirm any more judges to either court, the numbers remain the same as last year. The Eleventh Circuit will have 875 appeals per active judge compared to the 149 appeals filed per active judge in DC, which also has 8 active judges. Again, that is 875 cases for the Eleventh compared to 149 for DC. Some might argue that we shouldn't look only at active judges because those averages will change if and when we confirm more judges to the Eleventh Circuit. Suppose we fill each judgeship on the Eleventh Circuit and each judgeship on the DC Circuit, as the Democrats want to do. If we fill them all, there would be 583 appeals filed per judge for the Eleventh Circuit and only 108 for the DC Circuit. The Eleventh Circuit, then, would have over five times the caseload. This is why everyone who has looked at this objectively understands that the caseload for the DC Circuit is stunningly low. That is why current judges on the court have written to me and said things such as this-- and I will quote from one of the letters: ``If any more judges were added now, there wouldn't be enough work to go around.'' Some of my friends on the other side recognize that the DC Circuit's caseload is low, and they claim then that the caseload numbers don't take into account the ``complexity'' of the court's docket. They argue that the DC Circuit hears more administrative appeals than other circuits do, and they claim these administrative appeals are more complex. This argument is nonsense, and I will tell my colleagues why it is nonsense. I have heard my colleagues argue repeatedly that the DC Circuit's docket is complex because 43 percent of the docket is made up of administrative appeals. But, of course, that is a high percentage of a very small number. When we look at the actual number of those so-called complex cases per judge, the Second Circuit has almost twice as many as the DC Circuit. In 2012 there were 512 administrative appeals filed in DC. In the Second Circuit, there were 1,493 compared to that 512. We can look at this differently as well. In DC there were only 64 administrative appeals per active judge. The Second Circuit has nearly twice as many per judge with 115. Again, that is 64 administrative appeals per active judge in the DC Circuit as opposed to the Second Circuit, which has almost twice as many with 115. So this entire argument about complexity is what I already called it--nonsense--and the other side knows it, and if they don't know it, they ought to know it. Let me raise another question regarding caseload. If these cases were really that hard, if these cases were really so complex, then why in the world would the DC Circuit take the entire summer off? I am not talking about just a couple of weeks in August; they don't hear any cases for the entire summer. The DC Circuit has so few cases on their docket that they don't hear any cases from the middle of May until the second week of September. This past term, the last case they heard before taking the summer off was May 16. The court didn't hear another case until September 9--4 months later. The bottom line is everyone knows this court doesn't have enough cases as it is, let alone if we were to add more judges. That is why, when we ask the current judges for their candid assessment, they write: ``If any more judges were confirmed now, there wouldn't be enough work to go around.'' While I am discussing the caseload issue, I will remind my colleagues of a little bit of history that is very pertinent to this debate. In 2006 the Democrats on the Judiciary Committee blocked Peter Keisler's nomination to the DC Circuit. They blocked Mr. Keisler's nomination based upon--my colleagues can guess it--the court's caseload. Since that time, by the standard set by the other side, the court's caseload has declined sharply. We did not set this standard. The Democrats set that standard. I recognize that the other side wants to rewrite history. They try to compare John Roberts' second nomination to the circuit, which passed fairly easily, with the current nomination. What they conveniently forget in a misleading way is that they blocked Keisler's nomination after Roberts' nomination. I recognize the other side hopes we on this side will forget they established these rules and these precedents. I recognize the other side finds those rules very inconvenient today. But these are not reasons to ignore rules and precedents they established. There is simply no legitimate reason the other side should not embrace those very same rules, those very same standards they established in the year 2006. So under that standard established by the Democrats in 2006, then, very simply, these nominations are not needed. According to the current judges themselves, these judges are not needed. According to the chief judge of the DC Circuit, who happens to be a Clinton appointee, the senior judges are contributing the equivalent of an additional 3.25 judges. So, as a result, the court already has the equivalent of 11.25 judges, and that is beyond even the authorized number. It seems pretty clear the other side has run out of legitimate arguments in support of these nominations. Perhaps that is why, then, they are resorting to such cheap tactics. Over the last couple days, I have heard my colleagues on the other side come to the floor and actually argue that Republicans are opposing the nominee because of her gender. That argument is offensive. But, you know, it tends to be very predictable. We have seen this before. When the other side runs out of legitimate arguments, their last line of defense is to accuse Republicans of opposing nominees based upon gender or race. It is an old and it is a well-worn card, and they play it every time. The fact is--and this is why it is offensive to me--I voted for 75 women nominated to the bench by President Obama, as well as a host of other nominees of diverse backgrounds. Those are the facts. But the other side is not concerned with facts. They are more interested in coarse rhetoric as well as demagoguery, and it is very unfortunate. Those types of personal attacks on Members of the Senate are beneath this institution. Given there is no legitimate reason to fill these seats, why is the other side pushing these nominations so aggressively? And this is really the bottom line. But you can also ask, why waste $3 million a year of taxpayers' money for reasons that are not legitimate, particularly in violation of the constitutional checks and balances? As to these other reasons, we do not have to guess. We know the reason. We have all heard the President pledge repeatedly: If Congress will not act, I will. What he means, of course, is that he will rule by executive fiat. He will not go to Congress. He will not negotiate. He will go around this constitutionally elected body whose constitutional powers are to make law. That is not his power. He does not need legislators, then, to enact legislation. He will just issue executive orders or issue new agency rules. Why bother with us pesky Senators and Members of the House when you can make laws with a stroke of the pen? In effect, the President is saying: If the Senate will not confirm who I want when I want them, then I will recess-appoint them when the Senate is even in session. If Congress will not pass cap-and-trade fee increases, then I will go around them. And I will do the same thing through administrative action at the Environmental Protection Agency. If Congress will not pass gun control legislation, then I will issue executive orders. That is what the President means when he says: If Congress will not act, I will. But remember, we have a system of checks and balances. Under our system, when the President issues orders by executive fiat, it is the courts that provide a check on his power. It is the courts that decide whether the President is acting unconstitutionally. So the only way the President's plan works is if he stacks the deck in his favor. The only way the President can successfully bypass Congress is if he stacks the court with ideological allies who will rubberstamp those executive orders. There is no big secret here. The other side has not been shy about this strategy. Here is how the Washington Post described this strategy: Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures. Here is how another high-profile administration ally put it: There are few things more vital on the president's second- term agenda. With legislative priorities gridlocked in Congress, the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit. So the President is willing to waste $3 million of taxpayers' money a year--and every year--in order to bypass Congress and make sure his executive orders do not lose in court. Every Member of this body should find that very troubling. Finally, I want to mention a couple points on the so-called Gang of 14 agreement, which argument comes up quite frequently here on the floor, even though it is going back to the 109th Congress. First, by the very terms of that agreement, it applied only to those 14 Senators for that specific Congress, the 109th. Second, even though that agreement, by its own terms, expired at the end of the 109th Congress, just last week one of the Members who was actually in the Senate back in 2005 determined that these nominations, in his judgment, constituted ``extraordinary circumstances,'' which those two words implied that a filibuster would be justified. And third, in 2006, after the so-called Gang of 14 agreement, Senate Democrats created a standard that we call the Keisler standard. They blocked Peter Keisler based on caseload, after the so-called Gang of 14 agreement. Peter Keisler waited in committee for over 900 days for a vote, a vote that never came. These are the rules established by the other side. And now, when they are on the receiving end of those same rules, they want those rules changed. We do not intend to play by two sets of rules around here. And that brings me to the constant threat from the majority about changing the rules on the filibuster. I have been in the minority for a number of years. I have also had the privilege of serving in the majority for a number of years. Many of those on the other side who are clamoring for rules changes--and almost falling over themselves to do it--have never served a single day in the minority. All I can say is this: Be careful what you wish for. I have come to the conclusion that if the rules are changed, at least we Republicans will get to use those new rules when we are back in the majority. Republicans had the chance 7 or 8 years ago to change the rules, and we decided, out of respect for the integrity of this institution, not to change them. I am glad we did not. And I would imagine we would not be the first to change them in the future. Remember, it was the Democrats who first used the filibuster to defeat circuit judges. It was the Democrats who first used the caseload argument to defeat circuit judges such as Peter Keisler. So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases out there whom we would love to put on the bench. The nominees we would nominate and confirm with 51 votes will interpret the Constitution as it was written. They are not the type who would invent constitutional law right out of thin air. I urge my colleagues to oppose cloture on the Pillard nomination. I yield the floor. I suggest the absence of a quorum.

Mr. GRASSLEY

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

Mr. GRASSLEY. Madam President, would I be in order to speak about judges who are going to be voted on?

Mr. GRASSLEY. Madam President, I rise in support of the nominations of Debra M. Brown to be U.S. district judge for the Northern District of Mississippi and Gregory Howard Woods to be U.S. district judge for the Southern District of New York. Before we vote on these nominations, I want to inform my fellow Senators and the American people once again on the excellent progress we have made on nominations and the fair treatment of President Obama's nominees. With these confirmations today, the Senate will have confirmed 38 lower court article III judicial nominees this year. Despite what I frequently hear--that this President is being treated differently than President Bush--President Obama is clearly ahead of where President Bush was at a similar timeframe, meaning at this time in his second term. The 38 confirmations this year is more than 2\1/2\ times the number confirmed at a similar stage in President Bush's second term, when only 14 judicial nominees had been confirmed. In fact, for the entire fifth year of President Bush's term, only 21 lower court judges were confirmed. Again, in President Obama's fifth year we will have confirmed 38 nominees after today's votes. In addition to the robust pace of activity on the floor, the committee has had an aggressive schedule of hearings and business meetings taking action on many more nominees. In total, the Senate will have confirmed 207 lower court article III judges. We have voted against three nominees. So 207 to 3 being defeated is a success rate for the President of 99 percent of his nominees. I think that is a pretty outstanding record not just for President Obama but for any President. So I reject the continuing rhetoric regarding how Republicans are obstructing President Obama's judicial nominees. Again, I congratulate the nominees on their anticipated confirmations. Debra M. Brown is nominated to be United States District Judge for the Northern District of Mississippi. She received her B.Arch. from Mississippi State University in 1987. She worked as an associate in architectural firms until starting law school in 1994. She received her J.D. from University of Mississippi School of Law in 1997. Upon graduation, she joined Phelps Dunbar LLP as an associate, focusing on commercial litigation primarily in the financial and insurance context representing commercial clients such as banks, mortgage companies, property and casualty insurers and commercial property managers. She became partner in 2004, and handled matters concerning construction- related litigation for construction sureties, general contractors and some subcontractors. In 2012, she moved to Wise Carter Child & Caraway, P.A. There, she continues to handle construction litigation, as well as representation of owners in construction matters, and representation of hospitals and medical providers in the context of employment law and medical malpractice. She has participated in 12 trials, two as sole counsel, and one as chief counsel. The ABA has given Ms. Brown a rating of ``Unanimous Qualified''. Gregory Howard Woods is nominated to be United States District Judge for the Southern District of New York. He received his B.A. from Williams College in 1991 and his J.D. from Yale Law School in 1995. After graduating from law school, Mr. Woods joined the Department of Justice as a trial attorney in the civil division. While at DOJ, his practice included investigating and litigating cases under the False Claims Act. In 1998, Mr. Woods joined Debevoise & Plimpton as an associate and was made an equity partner in 2004. At Debevoise & Plimpton his practice was focused almost exclusively on corporate transactional law. As a partner, he devoted his practice principally to finance and restructuring matters. In August 2009 he was named Deputy General Counsel for the Department of Transportation. In 2012, after Senate confirmation, he was appointed by President Obama to be General Counsel of the Department of Energy. The ABA has given Mr. Woods a rating of ``Majority Qualified, Minority Well Qualified''. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise in opposition to any motion to invoke cloture on nominees to the DC Circuit. I am somewhat disappointed that the Senate majority wants to turn to a very controversial nomination next rather than to continue on a path of cooperative confirmations or other important Senate business. It seems to me that scheduling such a controversial vote in the closing weeks of this session of Congress is designed simply to heat up the partisanship of judicial nominations. My opposition is based on a number of factors. First, an objective review of the court's workload makes clear that the workload simply does not justify adding additional judges, particularly when additional judgeships cost approximately $1 million-- $1 million--every year per judge. Second, given that the caseload does not justify additional judges, you have to ask why the President would push so hard to fill these seats. It appears clear that the President wishes to add additional judges to this court in order to change judicial outcomes. Third, the court is currently comprised of four active judges appointed by a Republican President and four active judges appointed by a Democratic President. There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven. I will start by providing my colleagues with a little bit of history regarding this particular seat on the DC Circuit. It may come as a surprise to some, but this seat has been vacant for over 8 years. It became vacant in September 2005, when John Roberts was elevated to Chief Justice. In June of 2006, President Bush nominated an eminently qualified individual for this seat, Peter Keisler. Mr. Keisler was widely lauded as a consensus bipartisan nominee. His distinguished record of public service included service as Acting Attorney General. Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote. The vote never happened. When he was nominated, Democrats objected to even holding a hearing for the nominee based upon concerns about the workload of the DC Circuit. First, I would like to remind my colleagues that in 2006 Democrats argued that the DC Circuit caseload was too light to justify confirming any additional judges to the bench. Since that time, do you know what happened. The caseload has continued to decrease. In terms of raw numbers, the DC Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals. In 2005 that number was 1,379. Last year it was 1,193--a decrease of 13.5 percent. There are a lot of different ways to look at these numbers, but perhaps the best numbers to examine are the workload per active judge. The caseload has decreased so much since 2005 that even with two fewer active judges, the filing levels per active judge are practically the same. In 2005, with 10 active judges, the court had 138 appeals filed per active judge. Today, with only 8 active judges, it has 149. This makes the DC Circuit caseload levels the lowest in the Nation and less than half the national average. It has been suggested that there are other circuits, namely the Eighth and the Tenth, that have lighter caseloads than the DC Circuit. That is inaccurate. The DC Circuit has fewer cases filed and fewer cases terminated than either the Eighth or the Tenth Circuit. Cases filed and cases terminated measure the amount of appeals coming into the court and being resolved. Some of my colleagues have been arguing that the Eighth and the Tenth Circuits are similar to the DC Circuit based upon the comparison of pending cases. But cases pending does not measure how many cases are being added and removed from the docket. When looking at how many cases are added or filed per active judge, the DC Circuit is the lowest with 149. It is lower than the Eighth Circuit's 280 and the Tenth Circuit's 217. When looking at the number of cases being terminated by each court, the DC Circuit is once again the lowest at 149. Again, the Eighth Circuit and the Tenth Circuit courts are much higher at 269 and 218. Let me mention one other important point about pending appeals and the statistics my colleagues use. Several of my colleagues said on the floor yesterday that in 2005 there were only 121 pending appeals per active judge. That number seemed a little odd to me, so we looked into it a bit further, what the situation was in 2005. In order to arrive at that number, my colleagues appear to be taking the total appeals for 12 months ending June 30, 2005, and dividing them by 11 active judges. As it turns out, there were only 9 active judges for almost that entire 12-month period. Janice Rogers Brown was sworn in on June 10, 2005, and Judge Griffith was sworn in June 29, 2005. As a result, during that 12-month period there were 10 active judges for a total of only 19 days. There were 11 active judges on the DC Circuit for a grand total of 1 day. A few months later in 2005, the court was back down to nine after Judge Roberts was elevated to the Supreme Court and Judge Edwards took senior status. This is how hard pressed the other side is to refute what everyone knows to be true: The caseload of the DC Circuit is lower now than it was back in 2005. In order to have a statistic that supports their judgment, the other side is claiming there were 11 active judges for that 12-month period, while that claim was true for only a total of 1 day. The bottom line is this: The objective data clearly indicates the DC Circuit caseload is very low and that the court does not need additional active judges. That is especially true if you use the standard Senate Democrats established when they blocked Mr. Keisler. In addition to the raw numbers, in order to get a firsthand account, several months ago I invited the current judges of that court to provide a candid assessment of their caseload. What they said should not surprise anyone who has looked at this closely. The judges themselves confirmed that the workload on the DC Circuit is exceptionally low, stating, ``The court does not need additional judges.'' And, ``If any more judges were added now, there wouldn't be enough work to go around.'' Those are powerful statements from the sitting judges in that circuit. Given these concerns, it is difficult to see why we would be moving forward with additional nominations, especially in a time when we are operating under budget constraints. Unfortunately, the justification for moving forward with additional DC Circuit nominees appears to be a desire and an intent to stack the court in order to determine the outcome of cases this court hears. It is clear the President wants to fill this court with ideological allies for the purposes of reversing certain policy outcomes. This is not just my view. It has been overtly stated as an objective of this administration. I would quote along this line a Washington Post article, ``Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.'' We have a President who says: If Congress will not, I will. How do you stop that? The courts are the check on that. Even a member of the Democratic leadership admitted on the Senate floor that the reason they need to fill these seats was because, as he saw it, the DC Circuit was ``wreaking havoc with the country.'' This is perplexing, given the current makeup of the court. Currently, there are four Republican-appointed judges, and, with the most recent confirmation, there are now four Democratic-appointed judges. Apparently some on the other side want to make sure they get a favorable outcome of this court. I have concerns regarding filling seats on this court which clearly has a very low caseload. I have greater concerns about this President's agenda to stack the court and to upset the current makeup simply in order to obtain favorable judicial outcomes because: If Congress will not, I will. Given the overwhelming lack of a need to fill these seats based upon caseload and especially considering the cost to the taxpayers of over $1 million per judge per year, I cannot support this nomination and urge my colleagues to reject it as well. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I want to illustrate why this seat doesn't need to be filled. These are the other circuits. The average of those other circuits is 383 caseloads. The DC Circuit has 149, so workload doesn't demand it. Secondly, we are in a situation where this administration has said: ``If Congress won't, I will.'' He is going to do it by executive order. This is a court that can rule for or against the executive orders of this administration. We need to maintain checks and balances of the government. Also, each one of these seats costs $1 million, and not just for 1 year, but every year for the rest of the life of those judges who are serving full time. I ask that my colleagues vote against this cloture motion.

Mr. GRASSLEY. What that doesn't take into consideration is that there are six senior status judges on this court. Chief Judge Garland told us that their workload is the equivalent of 3\1/4\ judges. So presently there are enough judges to go around and that would equal 11\1/4\ judges. There are 8 judges there now plus the 3\1/4\ that have senior status. There are plenty of reasons not to fill any more seats on this court.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, the Centers for Disease Control has declared the misuse and abuse of some prescription and over-the-counter medicines in the United States to be an epidemic. According to the most recent National Survey on Drug Use and Health, NSDUH, there were over a quarter of a million new nonmedical users of prescription drugs in the past year and 1.9 million new nonmedical users of either prescription or over-the-counter pain relievers. These staggering numbers reflect the urgent need to raise awareness about the dangers associated with medicine abuse. To this end, October has been designated National Medicine Abuse Awareness Month. Millions of Americans are prescribed medicines every year to treat the symptoms of a variety of injuries and illnesses, from depression to the common cold. Many of these patients do not use the entire amount of medication they were prescribed and either forget about or do not know how to properly dispose of the leftover drug. As a result, half-filled bottles remain in medicine cabinets across the country for months or years. And many of these medicines, when not properly used or administered, can be just as deadly and addictive as street drugs like methamphetamine or cocaine. Indeed, according to the NSDUH, almost 70 percent of those who abused prescription drugs last year obtained them from a friend or relative, many of whom may have had excess drugs remaining in a family medicine cabinet. As a result, Federal law enforcement and drug policy organizations like the Drug Enforcement Administration and the Office of National Drug Control Policy, as well as national advocacy groups such as the Community Anti-Drug Coalitions of America, the Consumer Healthcare Products Association, and the Partnership for a Drug-Free America, are reaching out to community coalitions throughout the Nation to help raise awareness and address the problem head on. For example, in my home State of Iowa, the Van Buren County SAFE Coalition--with the help of the local pharmacy and the Van Buren County Reserve Officers--organizes regular drug take-back events at various locations throughout the county to provide an avenue to properly dispose of excess prescription drugs. Additionally, the local pharmacy there has started a take-back program that allows the pharmacy to collect unused and expired medication at any time. Another example of the response to this crisis is the Gateway Impact Coalition, located in Clinton, IA, that has collected nearly 3,500 pounds of old or unwanted medicine from residents in Clinton and Jackson Counties since 2008. We can stop the growing problem of medicine abuse, but it will require all sectors of the community to join together to make it happen. I applaud the work of community coalitions, such as the Van Buren County SAFE Coalition and the Gateway Impact Coalition, along with many others throughout Iowa and the Nation. I urge my colleagues to do all they can in their home States to make their constituents aware of the dangers associated with the misuse and abuse of prescription and over-the-counter medicines.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I wish to bring to my colleagues' attention the work of the Employee Benefit Research Institute, EBRI, in acknowledgment of the institute's 35th anniversary. EBRI is a nonpartisan, objective, and reliable source of information and analysis of private sector health and retirement issues in the Nation. Much of EBRI's work, including its data on qualified retirement accounts and its analysis of health care coverage, is unique and available nowhere else. As a research institution that is well respected by members and policy experts on both sides of the aisle, EBRI is frequently asked to testify on retirement, health, and economic security issues before committees in both the House and Senate. For more than three decades, the institute has provided credible, reliable, and objective research, data, and analysis that Congress can rely on. I congratulate EBRI on its 35th anniversary and look forward to many more years of its valuable, nonpartisan, and dependable analysis.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, I heard the previous speaker plead for a solution. I think we are all pleading for that. We are now in our 10th day of a government shutdown--quite frankly, one that did not have to happen. To some extent, it seems that this administration--meaning President Obama's administration--is going to great efforts to inflict as much pain through this shutdown as possible. Mr. President, the administration went to great lengths to try to keep World War II veterans from viewing the memorial dedicated to their service, the World War II Memorial. It is an open-air memorial. It likely took more effort and personnel to close and barricade the memorial than it does to keep it open. It is one of those memorials where 24/7/365 you can go there. There is no reason it could not have been the same way during this recent period. The government could be open and fully operating today but for the majority and its unwillingness to engage in legitimate debate over proposals to amend ObamaCare or any other legitimate issue of dispute. With regard to ObamaCare, not to defund or delay it is something that is not right in a body that is a deliberative body. You ought to consider all issues. Instead of wasting a lot of time being in quorum calls or days of not voting, there could be legitimate discussions of pieces of legislation, and in the process maybe reach some sort of conclusion through what we call ``regular order.'' The House has passed and the Senate has defeated three different continuing resolutions. Each one of those would have kept the government open and prevented a shutdown. That looks like that is something that was debated here and decided here. But it was decided in a manner that was not debatable, a motion to table the House amendments. These three offers from the House of Representatives were rejected by the Senate majority. We are in this position because the Senate majority refused to give the American people relief from the individual mandate and treat President Obama and his political appointees the same as all other Americans when it comes to Federal employees and officials being covered by health insurance. In addition to negotiating an end to the government shutdown, Congress now needs to deal with the approaching debt limit. This will be the sixth debt limit increase in President Obama's 5 years in office. During President Obama's term in office thus far, the United States has added $6 trillion to our national debt. We had 4 consecutive years with annual deficits above $1 trillion. Federal debt held by the public is now 73 percent of our gross domestic product. The historical average has been about 40 percent of GDP. This unsustainable debt path is threatening our economic growth and our stability. This administration is quick to point out that the deficits have fallen faster than at any point since World War II. They fail to mention, however, that the deficit remains over $600 billion this very year from highs near $1.4 trillion. Remember to compare the $600 billion for this year with the largest annual deficit under President Bush of $458 billion. Much of the recently improved deficit picture is also due to the spending cuts imposed by the Budget Control Act of August 2, 2011, that was enacted as part of the last debt ceiling increase. There is no better time to negotiate policies to address our fiscal problems than when debating debt ceilings. But the President and the Secretary of the Treasury maintain that they will not negotiate on the debt limit. There happen to be families all over this country which, because of the slow economy and unemployment, are being forced to make tough decisions to make ends meet. A lot of those families are looking at their budgets, looking right now trying to determine which expenses can be cut. Maybe they will try to reduce their cell phone bill or perhaps they will cancel a newspaper or a magazine subscription or perhaps eat at home instead of eating at restaurants. The point is, when families face tight budgets and increasing debt, they look for ways to cut spending and get their fiscal house in order. That is the prudent thing to do. When bills come due, families make tough decisions on where to trim the budget. That is a family example of the Federal Government's legitimacy for looking at our spending. At the very same time we are trying to increase the debt limit, we need to consider possibilities and make compromises to get our budget deficit down. Why can't the Federal Government then do the same? Why can't we use this opportunity to put our Nation on a sound fiscal course? Why can't we work right now to enact policies that will hopefully then negate the need to take on more debt. This seems to be a reasonable proposition, to do this when you are talking about increasing the federal debt. Treasury Secretary Lew and his boss, President Obama, have repeated the talking points that negotiating deficit reduction policies on a debt ceiling increase is unprecedented. They claim that now is not the time to negotiate our budget and fiscal problems. The President stated last month: You have never seen in the history of the United States the debt ceiling or the threat of not raising the debt being used to extort a President or a governing party and trying to force issues that have nothing to do with the budget and nothing to do with the debt. The President just does not understand history or even recent history when he makes such a statement. President Obama and Secretary Lew can make this claim as much as they want, but it does not make sense. It is not true. The Washington Post fact checker gave this exact quote from President Obama four Pinocchio's, which rates the statement as a ``whopper.'' The Post indicated that since 1953, Congress at times has used the debt limit as a way to force concessions by the executive branch on spending. It also states that the Congress has used the debt limit on many occasions to force changes in unrelated laws. At least four major pieces of deficit reduction policies were enacted as part of a debt limit increase: Gramm-Rudman, 1985; the Budget Enforcement Act, 1990; the Balanced Budget Act, 1997; the Budget Control Act, 2011. So the facts are very clear. The debt limit has been used in the past as a means to enact different deficit reduction policies and other reforms. Surely the President knew these facts when he made that statement that the Washington Post fact checker rated as a ``whopper'' with 4 Pinocchio's. According to the Congressional Research Service, since 1978, Congress has voted to raise the debt ceiling 53 times: 27 of those times or 51 percent of the time the debt limit increase was tied to reforms. I questioned Secretary Lew on this point this morning during our Finance Committee hearing. Unfortunately, I got the same tired talking points that have been proven time and again to be wrong. It is difficult to understand how an administration can expect us to take them seriously on the offer of future negotiations when they misrepresent such simple facts. The President and Congress must come to the table and negotiate policies to get our fiscal house in order. Does that put everything on the shoulders of the President of the United States? Absolutely not. It is just a fact that in this town, with our form of government, for over 225 years Presidential leadership is a very important part of the legislative process. We have taken steps to address discretionary spending. We did that in 2011 with the Budget Control Act. Now it is time to tackle entitlements. Without reform, entitlement spending will continue to consume our budget. They will begin to squeeze out spending on discretionary spending, such as defense, education, and infrastructure. According to the CBO, spending on entitlements will double as a percentage of GDP from the historic average of 6.9 percent to 14.2 percent by 2038. What does this mean for our economy? It means we will need to borrow more and more to fulfill our obligations. That will crowd out money that would otherwise be loaned in the private sector. This will lead to slower growth, less prosperity. It means that future generations may be less well-off than previous generations. The longer we kick the entitlement can down the road, the bigger the fiscal problems become and the harder the solutions will be. It is time to make tough decisions and once and for all strengthen and secure these programs for future generations. These reforms will not take place without presidential leadership. The President must now demonstrate courage and the political will to put our Nation on a sound fiscal course. That is not just the President's responsibility. That is a shared legislative responsibility between that end of Pennsylvania Avenue and this end. But it requires leadership that will bring people together. It requires compromise. It requires concession. Most of all, we need to get back to basics. We have to be sitting at a table across from each other negotiating. We will not be able to address those looming fiscal problems if President Obama is refusing even to sit across the table from Members of Congress, both Republicans and Democrats. So I hope he will reconsider his ``no negotiation'' strategy so that we can reopen the government, deal with the debt ceiling and begin to address our unsustainable long-term fiscal challenges. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. For the benefit of those on the other side of the aisle, I am not going to end my remarks with the issue of a unanimous consent, but I still have things I wish to say. No one supports a government shutdown, not my side of the aisle or the other side of the aisle. Could we have avoided this situation? Sure. The government could be open and fully operating today but for the majority. There was an unwillingness to engage in a legitimate debate over proposals to amend ObamaCare or any other issues that have come before us, not even having a debate on those pieces that have come over from the other body. Hiding behind a motion to table is a way of avoiding debate. As we know, the House passed and the Senate defeated three different continuing resolutions. Each one of those would have kept the government open and prevented a shutdown, but they were rejected by the Senate majority. We are in this position because the majority refused to give the American people relief from the individual mandate and treat President Obama and his political appointees the same as all other Americans or as we now in Congress will be treated when it comes to health insurance. We could have considered each of the 12 individual appropriations bills and passed them into law. But the Senate Democratic leadership has been derelict in that responsibility. The Senate did not get into debate on a single one of those bills prior to the end of the fiscal year. I heard what my colleague from Iowa said, that one was brought up, then amendments were filed, and there wasn't a motion to move ahead. The point is the Senate is a deliberative body. Every Senator has a right to offer an amendment. We were denied that right by the majority or at least weren't assured of that right by the majority, and that is why cloture was not granted. Of course, what the American people deserve is fair consideration of all the money we appropriate. We don't get that consideration on a continuing resolution, we get it lumped into one piece of legislation. We should, as the Senator from Wyoming said, be considering separate appropriations bills. I remember not too long ago that a chairman of an Appropriations Committee on the other side of the aisle, when they were in the majority, was bragging to the Senate that for the first time in a long time the Senate passed every single appropriations bill before the end of the fiscal year. If it could be done then, why can't it be done now? But it isn't going to be done if we aren't willing to debate the bills. It seems to me the American people, the taxpayers, deserve a thoughtful and good-faith effort to find common ground on our spending matters. It is a duty to pass spending bills. Passing a continuing resolution has become a new normal around here. That is not right. It is not acceptable. While we wait for the Senate majority and the President of the United States to come to the negotiating table and end their government shutdown, we should be working to fund or reopen areas of government where there is agreement. This is what we did when we passed the Pay Our Military Act, where we all agreed to pay those both in and out of uniform who defend our freedom. We made a commitment to them because of their commitment to our country. The military people deserve that piece of legislation. This is what we should be doing to open our national parks and monuments. That is what we should be doing to ensure the critically important work of the National Institutes of Health. Why hold these widely supported and critically necessary areas hostage? Why is the majority insisting on an all-or-nothing approach? Why can't we agree to fund these things we agree on and negotiate the rest? At the very least, a little bit of common sense ought to prevail. It was common sense, for instance, when the minority leader made the point about chaplains. It is common sense that chaplains have an obedience not only to the government but to a higher authority, and they ought to be able to exercise that wherever they are. We have a situation that the parks aren't open. We have a situation where the World War II Memorial was closed down. Open-air memorials have never been closed down when we had shutdowns in the past. A little common sense prevailing would avoid a lot of these situations we are bringing before the Senate for consideration. Remember, the House of Representatives has passed legislation to keep the government open, and the Senate has refused it. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, as my colleagues have done on several occasions, I come to the floor also to speak on the shutdown and the pending effort to find a compromise we can finally get to the President of the United States. Today, specifically, I come to the floor to take issue with a remark made by the President on Tuesday this week regarding the health care reform bill that he also sometimes calls ObamaCare. He said: The Affordable Care Act is a law that passed the House, that passed the Senate, the Supreme Court ruled constitutional. It was a central issue in last year's election. It is settled, and it is here to stay. While I understand the President's position on the law that now is referred to by his name, he also misses the point. On Monday night, the Senate had the opportunity to keep the government running. The Senate had a bill that funded the government and did so without delaying or defunding ObamaCare. As we all know, the Senate voted down that bill. So let me repeat: The government could have been kept open without delaying or defunding ObamaCare. Anyone who says anything different is simply not being accurate. What did the bill Monday night seek to do? The bill sought to delay the implementation of the individual mandate for 1 year and require executive branch appointees to go to the exchanges. Those are changes to ObamaCare. Apparently, the President doesn't believe we are allowed to make any changes whatsoever to ObamaCare. I would respect that position if the President actually enforced it over the last several years, as he had bills presented to him that he signed and that actually made some changes in the health care reform law. In fact, Congress has made numerous changes to ObamaCare since it was signed into law. I have a list here, but it is a list I will read in its entirety so people know the President has accepted changes to his prime piece of legislation and so I can refute that the President isn't consistent when I go back now to his quotation when he says: The Affordable Care Act is a law that passed the House, that passed the Senate, the Supreme Court ruled constitutional. It was a central issue in last year's election. It is settled, and it is here to stay. By that, I think the President is signifying that we can't do anything to touch the issue whatsoever, even to the minimal extent that we tried to Monday night. So this list was conveniently assembled not by this Senator but by the Congressional Research Service, and it was done on behalf of Senator Coburn. In the 111th Congress, to start with the first change we made that the President accepted, H.R. 4887 clarified that health care provided under TRICARE, TRICARE for Life, and the Nonappropriated Fund Health Benefits Program constitutes ``minimal essential health care coverage.'' Then we had H.R. 5014, clarifying that the health care provided by the Department of Veterans Affairs constitutes, according to the health care reform bill, ``minimal essential health care coverage.'' H.R. 1586 modified the definition of average manufacturer price to include inhalation, infusion, implanted or injectable drugs that are not generally dispensed through a retail community pharmacy. H.R. 4994 offset the costs of the Medicare and Medicaid Program extensions and the postponement of cuts in Medicare physician payments with a change in the Affordable Care Act, but the President signed it. H.R. 4853 extended the nonrefundable adoption tax credit through tax year 2012. H.R. 6523 extended TRICARE coverage to dependent adult children up to age 26, to conform with the private health insurance requirements under the Affordable Care Act. The President signed that. In the 112th Congress, H.R. 4 repealed the requirement that businesses file an information report whenever they pay a vendor more than $600 for goods in a single year. H.R. 674 modified the calculation of modified adjusted gross income to include Social Security benefits. H.R. 3630 reduced the Prevention and Public Health Fund annual appropriations over the period from fiscal year 2013 to fiscal year 2021 by a total of $6.25 billion to help offset the cost of extending the payroll tax cut. That is a monumental change in the bill. The President signed that. H.R. 4348 modified the Medicaid disaster-recovery FMAP adjustment by changing the adjustment factor and the effective date. H.R. 8 transferred 10 percent of the remaining unobligated Consumer Operated and Oriented Plan--and we call that the CO-OP--program funds to a new CO-OP contingency fund and rescinded the other 90 percent of those funds and repealed the CLASS Act. H.R. 1473 was another bill that the President signed. It canceled $2.2 billion of the $6 billion appropriation for the CO-OP program. H.R. 2055 rescinded $400 million of the remaining $3.8 billion for the CO-OP program, rescinded $10 million of the $15 million fiscal year 2012 appropriations for the Independent Payment Advisory Board, instructed the Secretary of Health and Human Services to establish a Web site with detailed information on the allocation of moneys in the Prevention and Public Health Fund, and prohibited use of those funds for lobbying, publicity or propaganda purposes. That bill was signed by the President. H.R. 933 rescinded $200 million of the $500 million transfer from the Medicare Part A and Part B trust funds for the 5-year Community-Based Care Transition Program and rescinded $10 million of the Independent Payment Advisory Board's fiscal year 2013 appropriation. These are changes made by Congress to the law the President refers to as settled law. When he talks about settled law, he talks to us that the Affordable Care Act cannot be changed now as we are debating things with a continuing resolution. Obviously, the act is not so settled that Congress cannot and has not amended it in the last several years. But as we all know, the President, through his own actions, has, in addition, considered ObamaCare not to be settled law either. The President has, through administrative action himself, made numerous changes to ObamaCare. In February, the President delayed application of the out-of-pocket limits. In March, the President delayed implementation of the Basic Health Plan Option. Also, in March, the President delayed a requirement that small business exchanges offer a choice of plans. In July, the President delayed the exchange applicant eligibility and verification. In July, in perhaps the most famous example, the President delayed implementation of the employer mandate. In regard to that, there were even Members of the President's party in the Senate--that said the President did not have the legal authority to do that. So on Monday night, House Republicans sent the Senate a bill that did not defund or delay ObamaCare. It continued funding our government. It simply sought to amend ObamaCare in the same way--dozens of times--as I have just illustrated it has been amended. There was not even any debate of the proposals on their merits. It was simply handled in the most simple way you can here, tabled by the Democratic leadership. Now we hear about the farcical issue of settled law.

Mr. GRASSLEY. Madam President, could I have 2 more minutes, please.

Mr. GRASSLEY. I do not know where this settled law legal theory comes from. I would note that some of my colleagues have ignored this theory during previous health care debates. In 2003, Congress passed a law, a bipartisan law, called the Medicare Modernization Act. This law passed with Members of both parties supporting it. It was signed into law by the President. It survived any court challenges that were made against it. It was, by the same token, settled law. That did not stop my colleagues from proposing legislation to amend Part D, called the Medicare Modernization Act. In fact, Democrats, including Members still currently in the Senate, proposed and voted to alter the Medicare Modernization Act by striking the noninterference clause. We considered that proposal and debated it on its merits, as we should have the amendments to the Affordable Care Act recently offered. We did not dismiss it as offensive because it sought to amend a settled law. The government could be open and fully operating today but for the Democrats' unwillingness to engage in legitimate debate over the proposals to amend ObamaCare, not defund it or delay it. We are where we are because the majority refuses to give the American people relief from the individual mandate and treat President Obama and his political appointees the same as all other Americans are by going to the exchange. In the wash of words that we will hear on the floor, I hope this simple truth can be heard. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I know we have been involved in a very intense debate, long speeches, time consuming, with an opportunity to bring up issues that are very important, particularly as we see that the executive branch of government has made decisions to delay so many aspects of health care reform. It is very appropriate at this time that we delve into the shortcomings of that great change in health care that the health care reform bill exemplifies. I was here yesterday, hoping to enter into the colloquies that were going on at that time led by Senator Cruz and time ran out, so I am here to state some points I wanted to make at that particular time. I will start by quoting our second President, John Adams: Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. The rhetoric surrounding this vote and the underlying issue has become all too hysterical. I would like us all to step back a little bit from the hysteria and focus on the facts. We have all taken to calling this legislation ObamaCare. Sometimes even the President does. For some people, attaching the President's name to this issue prevents people from paying attention to the facts. But personalizing this issue should not deter us from looking at those facts. I am not going to talk about shutting down the Government. So much time and effort is being devoted to discussing a government shutdown that people are not paying attention to the facts that we ought to be looking at. Instead, I would like to set aside the hyperbolic rhetoric for a few minutes and focus on those facts. Let's talk about the real- world effects of this Affordable Care Act. I will start with a few comments directly from my constituents in Iowa. My colleagues yesterday referred to constituents in their respective States. I am only going to refer to three constituent letters. The first one: I just want to share with you another downside caused by the Affordable Care Act. Besides teaching for my School District I also work as an adjunct instructor for various community colleges. Currently I am scheduled to teach four online classes at a community college in the summer. I just received notice that because of the Affordable Care Act I am only allowed to teach two classes because more than that would put me over the 75 percent load of a full-time instructor. So because of ObamaCare I will lose $4,200 of income this summer. It will also affect me at another school I teach at during the regular school year. I know there is not much you can do until the Republicans can regain control of the Senate but I just wanted you to be aware of another example of our current administration's lack of foresight of the impact of this law on the average hard-working American. The second letter: As superintendent of schools, I would like to express to you the impact of the Affordable Care Act on our local schools. The increase in cost, due directly to the Affordable Care Act will be approximately $180,000 to offer single health insurance to our non-certified staff. We are a combined school district of 750 students. The affected staff members are essentially, part-time, hourly employees who work 6.5 hours each day, 180 days per year. The only other option is to reduce hours for employees working directly with our highest need students. Additionally, we are planning on being required to pay an additional $17,500 in additional fees and taxes associated with the Affordable Care Act in the first year. Schools in Iowa can't pass that increase cost on to consumers, like private industry. We are budget restricted, so any increase in employee cost means an equal dollar amount reduction in staff, classroom materials/supplies, curriculum materials, field trips, all areas that strike pretty close to the child. This cost increase associated with the Affordable Care Act will most definitely result in reduced educational opportunities and increased class size. One final letter: I am a para-educator. I am writing in regards to President Obama's healthcare initiative. I've been told by my employer that next year my hours will be cut from full time to 29 hours a week because if I work more than 30 hours a week, they will be required by the new healthcare plan to provide me with insurance. This bothers me a great deal for a number of reasons: it causes stress, instability, and disruption to the special needs students I work with, I get a smaller paycheck, and it's very unfair. In addition, I'm bothered by the lack of foresight that went into making this law. It seems grossly unfair to me. I do my job well, I'm committed and invested in it, and I want to work, but am now being told that I can't work as much because of a law I didn't ask for and that won't benefit me. I'm sure my employer is not the only one that is cutting hours because of the insurance requirement. It seems that the people that this law was intended to help are being hurt instead. Please consider any actions you can to stop this law. My constituents are feeling the impact of this law. This is real. It is not some made-up political stunt. It is happening all over this great country of ours. Let's start with the grocery store chain, Trader Joe's. After extending health care coverage to many of its part-time employees for years, Trader Joe's has told workers who log fewer than 30 hours a week that they will need to find insurance on the exchanges next year. Then there is Five Guys, the national restaurant chain that started here in Washington, DC. The prices of burgers and hot dogs are going to rise to cover the President's mandated insurance coverage. Earlier this year, the medical device manufacturer Smith and Nephew announced they were laying off 100 employees. They cited a new Medical Device Tax, a provision of the Affordable Care Act, as the primary cause. SeaWorld is reducing hours for thousands of part-time workers, a move that would allow the theme-park owner to avoid offering those employees medical insurance under the Federal Government's health-care overhaul. The company operates 11 theme parks across the United States and has about 22,000 employees--nearly 18,000 of whom are part-time or seasonal workers. It has more than 4,000 part-time and seasonal workers in Central Florida. Under a new corporate policy, SeaWorld will schedule part-time workers for no more than 28 hours a week, down from a previous limit of 32 hours a week. The new cap is expected to go into effect by November. With the reduced hours, those employees would not be classified as full-time workers under the Affordable Care Act. Much has been said on the floor by different Members about the Cleveland Clinic. The Cleveland Clinic said it would cut jobs and slash five to six percent of its $6 billion annual budget to prepare for health reform. The clinic is Cleveland's largest employer and the second largest in Ohio after Wal-Mart. It is the largest provider in Ohio of Medicaid health coverage for the poor, the program that will expand to cover uninsured Americans under the Affordable Care Act. The cuts are necessitated by the lower reimbursement they are anticipating. There is no doubt; the Affordable Care Act is affecting the way business look at their employees. As one recent report notes, U.S. businesses are hiring at a robust rate. The only problem is that three out of four of the nearly 1 million hires this year are part-time and many of the jobs are low- paid. Faltering economic growth at home and abroad and concern that the Affordable Care Act will drive up business costs are behind the wariness about taking on full-time staff, executives at staffing and payroll firms say. Employers say part-timers offer them flexibility. If the economy picks up, they can quickly offer full-time work. If orders dry up, they know costs are under control. It also helps them to curb costs they might face under the Affordable Care Act. It is not just employers. Let's look at the way major unions view the Affordable Care Act. Let me quote from a letter from the heads of the Teamsters, Food and Commercial Workers, and UNITE-HERE. This letter was addressed to Representative Pelosi and Senator Reid. When you and the President sought our support for the Affordable Care Act (ACA), you pledged that if we liked the health plans we have now, we could keep them. Sadly, that promise is under threat. Right now, unless you and the Obama Administration enact an equitable fix, the ACA will shatter not only our hard-earned health benefits, but destroy the foundation of the 40 hour work week that is the backbone of the American middle class. Like millions of other Americans, our members are front- line workers in the American economy. We have been strong supporters of the notion that all Americans should have access to quality, affordable health care. We have also been strong supporters of you. That means the President and the Senator and the Congresswoman. In campaign after campaign we have put boots on the ground, gone door-to-door to get out the vote, run phone banks and raised money to secure this vision. Now this vision has come back to haunt us. Time is running out: Congress wrote this law; we voted for you. We have a problem; you need to fix it. The unintended consequences of the ACA are severe. Perverse incentives are already creating nightmare scenarios. On behalf of the millions of working men and women we represent and the families they support, we can no longer stand silent in the face of elements of the Affordable Care Act that will destroy the very health and wellbeing of our members along with millions of other hardworking Americans. We continue to stand behind real health care reform, but the law as it stands will hurt millions of Americans including the members of our respective unions. We are looking to you to make sure that these changes are made. That letter was sent to Senator Reid and Representative Pelosi to explain why things very definitely need to be done to this legislation. Those are not people with known conservative credentials. They are known for their views of being progressives, liberals, and people looking out for the middle class. They find much fault with this Affordable Care Act, and then some wonder why there is so much concern being expressed by Members of the Senate about why this should be defunded. All of this adds up to what is being said by the people who supported the passage of the health care reform act, which is constituents, employers, and even unions. Let's take this a step further. Let's look at the economic researchers. In March the Federal Reserve said the 2010 health care law is being cited as a reason for layoffs and slowdown in hiring. Employers in several districts cited unknown effects of the Affordable Care Act as reasons for planned layoffs and reluctance to hire more staff. Here is another one: A recent National Bureau of Economic Research study examined the Affordable Care Act's taxes and its impact on labor. Basically, if we want employment to go back to prerecession levels, we must end the Affordable Care Act. The marginal rate increase due to the phaseout of premium subsidy and other implicit taxes in the Affordable Care Act result in a ``massive 17 percent reduction in the reward to working--akin to erasing a decade of labor productivity growth without the wealth effect--that would be expected to significantly depress the amounts of labor and consumer spending in the economy even if the elasticity of labor supply were small (but not literally zero). The large tax increases are the primary reason why it is unlikely that the labor market activity will return even near to its prerecession levels as long as the ACA's work disincentives remain in place.'' Isn't it something to have an organization as respected as this organization say that after all the work that went into the Affordable Care Act, its very existence is a disincentive to productivity and employment? With all of these concerns from constituents, employers, unions, and even the Federal Reserve, we would think that would cause people to pause. But it is also a legitimate reason for all the discussion we have had this week on what is wrong with the Affordable Care Act and the defunding thereof. On top of that, we keep hearing concerns about the readiness to move forward with the law at all. In August the Government Accountability Office noted that testing of the government's ``data service hub'' to support new health insurance market places was more than a month behind schedule. The report said: Several critical tasks remain to be completed in a short period of time, such as final independent testing of the Hub's security controls, remediating security vulnerabilities identified during testing, and obtaining the security authorization decision for the Hub before opening the exchanges. CMS's current schedule is to complete all of its tasks by October 1, 2013, in time for the expected initial open enrollment period. It is unclear whether national health insurance plans, which were supposed to give consumers choice and help drive down costs, will be available next year. Under the health care law, the Office of Personnel Management is supposed to oversee the rates and contracts for at least two national plans in every State. According to news reports, the White House says there will be a national health plan in at least 31 States. Now, that is 31 States, that is not 50 States. Perhaps the most telling sign that the Affordable Care Act as enacted isn't working is how much the administration has rewritten the law on its own--a highly dubious proposition. The Congressional Research Service recently noted that President Obama has already signed 14 laws that amend, rescind, or otherwise change parts of his health care. He has also taken five independent steps to delay, which he has been able to do on his own. So the Congress has passed or the President has signed into law 14 changes. I say that again for emphasis. Again, the CRS report noted that President Obama--totally separate of Congress-- has delayed implementation of parts of the health care law five separate times. Congress should be focusing our efforts on creating jobs and improving the economy. Yet the Affordable Care Act is having the opposite effect. Our economy cannot handle any more job-killing regulations from Washington. It has been 4 years since the end of the recession. For a lot of Americans, it is as if the recession never ended. While the unemployment rate now stands at 7.3 percent, which is bad enough, that only tells half the story. The fact is that this economy is so sluggish that only 63.2 percent of working-age Americans remain in the workforce. The labor force participation rate is at its lowest in 35 years. The unemployment rate is dropping primarily because people have simply given up finding work. What we should be doing is supporting policies that lead to economic growth and job creation. We should be supporting things like the Keystone XL Pipeline. The initial permit for this job-creating energy project was submitted over 5 years ago. Despite overwhelming support in the Congress for the pipeline, the President has delayed the project for years to appease the extreme left. We have similar job-killing regulations coming out of the Environmental Protection Agency. We should be working to create an efficient progrowth Tax Code, one that rewards success rather than hinders it. We should be focusing on our long-term fiscal problems. We all know we are on an unsustainable path. Yet the longer we delay and kick the can down the road, the harder the job will become. All of the tax, health care, and fiscal uncertainty is acting like a headwind against our economy. So I will support funding our government and avoiding a shutdown. I will support any effort to repeal the Affordable Care Act. I will support any effort to defund the same act. I will support any effort to delay implementation of that same act. I will support the Vitter amendment and any other amendment that puts 8,000 executive branch employees in the exchange. As I have said again and again, the people responsible for this law should have the opportunity to experience it just as the American people will. Perhaps then they, including this Senator, will then finally pay attention to the facts surrounding the implementation of the Affordable Care Act. I do so not out of personal animus for the President. I do so not to tear down the so-called signature achievement of the administration. I do so because I am looking at the facts. I do so because I am looking at what is happening in health care and with our economy. Let's not stop thinking simply because someone uses the word ``ObamaCare.'' Let's not talk about shutting down the government. Let's turn down the hysteria and look at what is really happening with the health care and its impact upon the economy. Just this week a Member of the Senate described our efforts to stop ObamaCare as ``insanity.'' I disagree. A vote to barrel ahead as though everything is just fine strikes me as far closer to the definition of ``insanity.'' A reasonable person can and should conclude that we should stop moving forward on ObamaCare, and that is how I will be voting this week. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, the Attorney General has recently announced that the Department of Justice will not charge certain drug offenders in a way that would trigger the imposition of mandatory minimum sentences. Before outlining some of the concerns that I have with the policy and the statement that the Attorney General issued on the subject, I do want to note that I agree with a number of the points that he made. These are the specific points with which I am in agreement with the Attorney General: The Department will coordinate with State, local, and tribal law enforcement to maximize the operation of Federal resources in criminal prosecutions. The development of comprehensive anti-violence strategies by the U.S. attorneys with input from State and local authorities. The designation by the U.S. attorneys' offices of coordinators for prevention and reentry. Direct Federal assistance to hot spots of violence and the new use of COPS grants for school resource officers. Creation of a new task force for violence experienced by Indian children. Providing support for survivors of sexual assault, domestic violence, and dating violence. Compassionate release of nonviolent inmates who are elderly and have served a long part of their sentences is wise. And I favor addressing unwarranted racial disparities in sentencing. That is quite a bit of agreement. I am pleased that we share some common ground. But there are other statements of the Attorney General that I cannot agree with, and I think it is important to set the record straight. Almost 30 years ago the crime situation in this country was far different from the 1960's on, crime rates had risen rapidly. One reason for that state of affairs was the way sentencing worked. There was often little relation between the length of sentence that was imposed and the actual time the offender served. Parole often led to release of criminals too soon, enabling them to repeat their crimes on other unsuspecting victims. Judges had almost limitless discretion in sentencing within a broad range. Sentences imposed depended much more on which judge was giving the sentence than the nature of the offense or the criminal history of the offender. Parole and excessive judicial discretion led to unwarranted disparities in sentencing. And so in 1984 Congress changed how Federal sentencing operated. We adopted truth in sentencing. We added certainty by abolishing parole. Now Federal sentences given are the time that is served. Disparities due to parole boards were eliminated. Sentencing guidelines were established. They reflected the nature of the criminal offense and the criminal history of the offender. Those guidelines were normally binding on any Federal judge in the country. So no longer would sentences turn on which judge a criminal appeared before. The guidelines eliminated other disparities as well. Judges could not consider factors that often led to wealthier defendants receiving shorter sentences for similar crimes than less wealthy defendants. Racial bias in sentencing, conscious or unconscious, also was addressed through mandatory guidelines. The legislation was passed by wide bipartisan majorities. Nearly everyone agreed that some judges were too lenient in sentencing and that the excessive discretion they exercised produced various unfair disparities. Congress, separate from the sentencing guidelines, also increased the number of mandatory minimum sentences. Since then, due in part to tougher Federal criminal penalties, elimination of parole, increased numbers of inmates, better police practices, and other factors, crime rates have dropped significantly. However, the Supreme Court undermined the excellent sentencing legislation that Congress passed. First, the Court created from whole cloth a novel interpretation of the Sixth Amendment. Second, the Court in a 2005 case called Booker unnecessarily extended that line of cases to mandatory sentencing guidelines and held them unconstitutional. Third, rather than then strike down the guidelines, the Court rewrote them. In a particularly egregious example of judicial activism, they overrode congressional intent and made the guidelines advisory. It was only because the guidelines were clearly intended to be mandatory that Congress ever passed them in the first place. Following Booker, Congress now has only one available tool to make sure that sentences are not too lenient and do not reflect unwarranted disparity. That is mandatory minimum sentences. Given this background, I do take issue with a number of the Attorney General's statements. I do not agree with him that prisons today ``warehouse and forget.'' All kinds of programs and incentives exist for prisoners today to improve their behavior when they are released. Sentences can be shortened by completion of these programs. And I don't think that the solution to a cycle that ends in incarceration is simply to incarcerate criminals for less time or to jail fewer criminals. For the most part, it is not the case that too many Americans go to prisons for too long and for no good law enforcement reason. And the Attorney General just is not right when he says that ``[w]idespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.'' Increased incarceration has led to less crime. I do see that for the first time in 5 years the Obama administration has finally found one area of Federal spending that it wants to cut: prisons. But in the same speech, the Attorney General called on more spending on Federal defenders. I do not agree with that. Federal defenders play an important role and often represent defendants well. But we should be encouraging more private attorneys, at lower cost, to represent defendants against the Government. And we should consider requiring better training of these lawyers before they are allowed to represent defendants. The Attorney General correctly notes that ``unwarranted disparities are far too common.'' He cited one report that shows that ``black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes,'' and that this is ``shameful.'' But he overlooks the reason for those disparities. They exist not so much due to mandatory minimum sentences, which existed both before Booker and after. In fact, Congress has reduced mandatory minimum sentences since Booker. Rather, the disparities are due primarily to the Supreme Court's Booker decision that made the sentencing guidelines advisory, rather than to mandatory minimums. Since that 2005 ruling, the guidelines have been applied in fewer and fewer cases every year. Sentences imposed now turn on which judge the offender appears before. And more than before, the quality of the lawyer and the other factors that produced disparity before the Sentencing Reform Act are now creeping back into sentencing. The sentencing commission, in that report that the Attorney General referred to, tracked racial disparities in sentencing. It compared sentences of African-American and White males at the time the guidelines were still mandatory compared to today, when they are advisory only. For cases overall, when the guidelines were mandatory, African-American males served 11.5 percent longer sentences than White males. Now that the guidelines are advisory, African-American men serve 19.5 percent longer sentences than white males. That is a significant difference. There are various categories of crimes in which the rendering of the sentencing guidelines as advisory has increased disparity. For instance, in firearms case, African-American men received sentences that were 6 percent longer than White men when the guidelines were mandatory. Today, African-American men receive sentences 10 percent longer than Whites for these crimes. For drug trafficking, African- American men received sentences that were 9 percent longer than White men in 2005, but since the guidelines were made advisory, they now receive sentences that are 13 percent longer. It is true that sentences overall are falling since the guidelines were made advisory. But as the sentencing commission concluded, ``Although sentence length for both Black male and female offenders and White male and female offenders have decreased over time, White offenders' sentence length has decreased more than Black offenders' sentence length.'' And in considering racial disparities in the criminal justice area, the race of the victims must also be considered. Despite reductions in homicides nationwide in recent years to levels not seen since the 1960s, this is not true for the number of homicides of African- Americans. ``The number of black male murder victims rose more than 10 percent from 2000 to 2010, to 5,942 from 5,307,'' according to the Wall Street Journal. Two areas that the Attorney General has said are criminal enforcement priorities also exhibit disparities. These are financial crimes and child pornography possession. As I have said many times before, I wish the Department would prosecute even one of the executives of the major financial firms whose criminal conduct contributed to the financial crisis. These two criminal fields both tend to involve White male defendants. Too often, the sentences imposed are too lenient. In addition, these crimes do not carry mandatory minimum sentences. We should consider imposing mandatory minimum sentences for these offenses, both to reduce racial disparities and to give prosecutors additional tools to combat these serious crimes. Since Booker, there have been press reports of people who have been convicted of financial fraud who have received very lenient sentences, far below the guidelines. That is leading to disparity. One report showed that there have been so many financial fraudsters in New York who have been sentenced merely to probation that lawyers for newly convicted fraudsters have argued that to avoid disparities, their clients must also receive probation. Other press accounts have shown financial criminals who have persuaded judges that the financial benefits these criminals have provided to needy people should be considered to lighten their sentences. No poor defendant would be able to reduce his sentence based on using a portion of his ill-gotten gains to help others. Another set of defendants who in the post-Booker world have received very lenient sentences is those who are convicted of child pornography possession. Too many judges are lenient in their sentencing. Too often we are seeing that unless the defendant actually molested a child, a judge doesn't impose a serious punishment. More than other Federal crimes, defendants in financial and child pornography cases tend to be White males. Too many judges have given these criminals only a slap on the wrist. After Booker, the only way Congress can control the abuse of discretion that judges are showing in these cases is through imposition of a mandatory minimum sentence. The Attorney General announced a new policy of not charging certain defendants with crimes that carry mandatory minimum sentences. That raises concerns. Withholding quantities of drugs from indictments may not have the effect he desires, since the judge will know the quantity in any event when the presentencing report is received. The judge can still take that into account when sentencing. Moreover, a dangerous precedent may be established by not charging the greatest offense that can be proved. All Federal crimes now are typically prosecuted at the highest level that can result in a conviction, unless a plea agreement is reached. This reduces prosecutorial discretion and disparity in charging and sentencing. I hope that the new policy will not be applied or extended in a way that would increase disparity. Mandatory minimum sentences are not new. The first Congress enacted mandatory minimum sentences in 1790. Nor are they as inflexible as they are often characterized. According to the sentencing commission, almost half of all offenders convicted of an offense carrying a mandatory minimum sentence are not given such a sentence. We hear over and over that mandatory minimum sentences are one size fits all. We hear that low level and first time offenders always receive harsh sentences. Not so. The safety valve provision requires judges not to impose mandatory minimum sentences for first time, low- level, nonviolent drug offenders, who have provided all information to the authorities. Mandatory minimum sentences are not imposed on many other offenders because they provide substantial assistance to the government in prosecuting more serious criminals. Congress in 2010 also passed legislation reducing mandatory minimum sentences for certain crack cocaine offenses. Contrary to standard rules of statutory construction, that law has been interpreted to apply retroactively to people who committed their crimes before enactment of the law. We need to keep that in mind for any sentencing legislation we might enact. The combination of mandatory minimum sentences and a reduction for substantial assistance provides investigative leads against bigger fish. It is a benefit of mandatory minimum sentences that is not always appreciated. Were we to meaningfully cut back on mandatory minimums, we would lose the ability to bring prosecutions against a large number of major criminals. We should always consider what crimes should carry mandatory minimum sentences and what the length of those sentences should be. But for the reasons I have outlined, it would be a serious mistake to eliminate mandatory minimum sentences, either wholesale or for a class of drug offenses. I am also troubled by a document the Attorney General released along with his speech entitled, ``Smart on Crime.'' In that document the Department favors diversion and supervision rather than incarceration for what it terms low-level, non-violent offenders. The Department says it encourage U.S. Attorneys to use ``best practices'' of diversion for non-violent offenders and supervision for more serious offenders. The document says, ``Examples of eligible defendants are those charged with non-violent bank robberies.'' What bank robberies does the Attorney General think are non-violent? If a person hands the teller a note that says, ``I have a gun, hand over the money,'' but he does not actually have a gun, is that a non-violent offense? No, it is not. Robbery always involves violence or the threat of violence. There is no such thing as a non- violent bank robbery. Those who commit that crime should go to jail, not be released back into the community under supervision, as the Department is advocating. There is a danger that some of what the Attorney General is proposing is unjustified leniency and would harm public safety. Madam President, I appreciate that the Attorney General has offered ideas on sentencing. I agree with some. Others are misguided, even dangerous. I will work with him where I can. But we cannot have a proper debate on sentencing reform without understanding how we have reached our current situation, why unwarranted disparities exist, and what changes in sentencing would improve rather than harm the situation. The Judiciary Committee will hold a hearing on mandatory minimum sentences and proposed legislation on Wednesday. As I have stated, there are some common misunderstandings on this subject. I hope that more clarity will emerge as a result of the hearing.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I am pleased to be an original cosponsor of the Missing Children's Assistance Reauthorization Act of 2013. This bill will reauthorize the efforts of the National Center for Missing and Exploited Children. This legislation will ensure that NCMEC will continue to be able to receive reports of missing children for law enforcement, provide DNA analysis to locate missing children, partner with the FBI and Department of Justice to combat child sex trafficking, fight child pornography. NCMEC also should be allowed to continue to perform its role as the congressionally-authorized national clearinghouse to assist missing and exploited children, working with agents from the FBI, Secret Service, Marshals Service, Immigration and Customs Enforcement, the Postal Inspection Service, and the Naval Criminal Investigative Services. There is a greater need than ever before for transparency and accountability when taxpayer moneys are granted to private, nonprofit, and other governmental agencies. I am pleased that the bill contains the accountability measures that I demand for all grants that are awarded by the Department of Justice. These include two audits of NCMEC use of these funds over the life of the reauthorization, penalties for misuse of funds, prohibition on receipt of funds by an organization that holds offshore accounts to avoid taxes, limitations on conference expenditures, and prohibition of the use of taxpayer funds to lobby for grant funding. These provisions will ensure that taxpayers can have confidence that their money will be used properly and for public purposes. NCMEC performs important services to combat terrible crimes against vulnerable victims. With the inclusion of transparency and accountability safeguards, I look forward to the enactment of this legislation in advance of the expiration of the current authorization.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I support the nomination of Raymond T. Chen, to be United States Circuit Judge for the Federal circuit. This is the 29th judicial confirmation this year. With today's confirmation, the Senate will have confirmed 200 lower court nominees; we have defeated two. That's 200 to 2. That is an outstanding record. That's a success rate of 99 percent. We have been doing that at a fast pace. During the last Congress, we confirmed more judges than any Congress since the 103rd Congress, which was 1993 to 1994. So far this year, the first of President Obama's second term, we've already confirmed more judges than were confirmed in the entire first year of President Bush's second term. At a similar stage in President Bush's second term, only 10 judicial nominees had been confirmed. We are now at a 29-to-10 comparison with President Obama clearly ahead of where President Bush was. And, as I said, we have already confirmed more nominees this year--29--than we did during the entirety of 2005, the first year of President Bush's second term, when 21 lower court judges were confirmed. With regard to hearings, the record shows that President Obama is being treated much better than President Bush during his second term. Last week we held the 11th judicial nominations hearing this year. In those hearings we we have considered a total of 33 judicial nominees. Compare this favorable treatment of President Obama during the beginning of his second term versus the first year of President Bush's second term. At this stage in President Bush's second term, the Committee had held not 11 hearings with 33 judicial nominees, but only 3 hearings for 5 nominees, and all of those were hold-overs from the previous Congress. In fact, for the entire year of 2005, Senate Democrats only allowed 7 hearings for a grand total of 18 judicial nominees. It is hard to believe, but no nomination hearings on judicial nominees were held during April, May, June, or July. Four months with no judicial nomination hearings. Yet, we recently rushed through hearings on nominees to the DC Circuit Court of Appeals, plus a number of District nominations. In fact, in just the last few weeks, we have held hearings for 14 judicial nominees. That's not very far behind the entire output of 2005--7 hearings, 18 nominees. Again, we have already exceeded that number--11 hearings and 33 judicial nominees. The bottom line is that the Senate is processing the President's nominees exceptionally fairly. President Obama certainly is being treated more fairly in the first year of his second term than Senate Democrats treated President Bush in 2005. It is not clear to me how allowing more votes and more hearings than President Bush got in an entire year amounts to ``unprecedented delays and obstruction.'' Yet, that is the complaint we hear over and over from the other side. So I just wanted to set the record straight-- again--before we vote on this nomination. Raymond T. Chen is nominated to be United States Circuit Judge for the Federal circuit. He received his B.S. from the University of California, Los Angeles, in 1990 and his J.D. from New York University School of Law in 1994. Upon graduation, Mr. Chen worked at Knobbe, Martens, Olson & Bear in California from 1994 to 1996. As an associate, he drafted district court briefs and legal memoranda on specific patent and trademark issues as well as several patent applications spanning various technologies. In 1996, Mr. Chen joined the senior technical assistant's office at the Federal circuit in Washington as one of three technical assistants. There, he researched and wrote memoranda, commenting on drafts of court opinions for both legal and technical accuracy as well as identification of conflicting legal precedent, occasionally writing for individual judges. From 1998 to 2008, Mr. Chen served as an associate solicitor in the Office of the Solicitor at the United States Patent and Trademark Office. During that time, he was first or second chair on several dozen Federal Circuit briefs defending the agency's patent and trademark decisions, and he presented approximately 20 arguments in the Federal Circuit. He regularly appeared in district court defending the agency against lawsuits brought under the Administrative Procedure Act. He was also a legal advisor on several patent policy and legal issues within the agency, occasionally prosecuting patent attorneys in administrative proceedings for violating the agency's code of professional responsibility. In 2008, Mr. Chen became the Deputy General Counsel of Intellectual Property Law and Solicitor. There he supervises other lawyers in the Solicitor's Office and has presented oral arguments in some of the seminal patent cases before the Federal circuit. In addition, Mr. Chen deals with higher-level patent and trademark policy issues within the agency. He also coordinates the determination of what positions the United States should take as an amicus in intellectual property cases before both the Supreme Court and the Federal circuit. Lastly, Mr. Chen is responsible for the review and clearance of all new regulations and amendments to existing regulations for the Office of the Solicitor. The ABA Standing Committee on the Federal Judiciary gave him a unanimous ``well qualified'' rating.

Mr. GRASSLEY. I ask my colleagues to vote for this nomination.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, the United States-Israel Strategic Partnership Act of 2013 reaffirms the strong relationship the United States has with Israel. As the legislation states, our countries share a deep and unbreakable bond, forged by over 60 years of shared interests and shared values. S. 462 includes provisions that will enhance cooperation between our countries in the areas of energy, defense, homeland security, and agriculture. While I support the end goal of the bill, I do have reservations about a section dealing with the visa waiver program. The visa waiver program was created by Congress but is largely overseen and maintained by the executive branch. The Secretary of Homeland Security, in consultation with the Secretary of State, may designate any country as a participant if certain qualifications are met. Congress laid out the criteria, which include low nonimmigrant visa refusal rate; machine readable passport program; law enforcement and security interests; reporting lost and stolen passports; repatriation of aliens; and passenger information exchange. Once a country meets these requirements, the Secretary of Homeland Security allows the country to participate in the visa waiver program. Yet, S. 462 would amend the statute and allow Israel in the program even if all the criteria are not met. Specifically, under the legislation, Israel would not have to abide by the low nonimmigrant visa refusal rate. Currently, 37 countries participate in the visa waiver program without needing a special exception. I am concerned about section 9 of the bill because it sets a precedent for other countries not to have to abide by all the terms of the program. Participating in the visa waiver program is a great benefit. Congress should not be making exceptions. So, while I support the bill and am cosponsoring it today, I will advocate that section 9 be amended before it is passed by this body. The Senate should accept the House language, which simply includes a statement of policy and requires the Secretary of State to report on the extent to which Israel satisfies the requirements specified in law. I hope my colleagues will work with me on this section, and I look forward to helping pass this bill in the Senate to reaffirm the partnership of United States with Israel.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce, along with Senator Franken, the Family Farmer Bankruptcy Clarification Act of 2013. We introduced similar legislation in the 112th Congress, but the Senate never had a chance to consider the bill. The bill addresses the 2012 United States Supreme Court case Hall v. United States. In a 5-4 decision, the Supreme Court ruled that a provision I inserted into the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act did not accomplish what we in Congress intended. The Family Farmer Bankruptcy Clarification Act of 2013 corrects this and clarifies that bankrupt family farmers reorganizing their debts are able to treat capital gains taxes owed to a governmental unit, arising from the sale of farm assets during a bankruptcy, as general unsecured claims. This bill will remove the Internal Revenue Service's veto power over a bankruptcy reorganization plan's confirmation, giving the family farmer a chance to reorganize successfully. In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide a specialized bankruptcy process for family farmers. In 2005 Chapter 12 was made permanent. Between 1986 and 2005 we learned what aspects worked and did not work for family farmers reorganizing in bankruptcy. One problematic area was where a family farmer needed to sell assets in order to generate cash for the reorganization. Specifically, a family farmer would have to sell portions of the farm to generate cash to fund a reorganization plan so that the creditors could receive payment. Unfortunately, in situations like this, the family farmer is selling land that has been owned for a very long time, with a very low cost basis. Thus, when the land is sold, the family farmer is hit with a substantial capital gains tax, which is owed to the Internal Revenue Service. Under the Bankruptcy Code, taxes owed to the Internal Revenue Service receive priority treatment. Holders of priority claims must receive payment in full, unless the claim holder agrees to be treated differently. This creates problems for the family farmer who needs the cash to pay creditors to reorganize. However, since the Internal Revenue Service has the ability to require full payment, they hold veto power over a plan's confirmation, which means in many instances the plan will not be confirmed. This does not make sense if the goal is to give the family farmer a fresh start. Thus, in 2005 Congress said that in these limited situations, the taxes owed to the Internal Revenue Service would be stripped of their priority and treated as general, unsecured debt. This removed the government's veto power over plan confirmation and paved the way for family farmers to reorganize. Unfortunately, in Hall v. United States, the Supreme Court ruled that despite Congress's express goal of helping family farmers, the language inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. The Hall case was one of statutory interpretation. There is no question what Congress was trying to do; rather, did Congress use the correct language? My goal, along with others at the time, was to relieve family farmers from having their reorganization plans fail because of huge tax liabilities to the federal government. Justice Breyer noted this in the dissent: ``Congress was concerned about the effect on the farmer of collecting capital gains tax debts that arose during, and were connected with, the Chapter 12 proceedings themselves. . . . The majority does not deny the importance of Congress' objective. Rather, it feels compelled to hold that Congress put the Amendment in the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897 (2012) (Breyer, J., dissenting) (internal citations and quotations omitted). As a result of the Hall case, family farmers facing bankruptcy now find themselves caught in a tough spot. The rules have now changed and must be corrected in order to provide certainty and clarity in the law. The Family Farmer Bankruptcy Clarification Act of 2013 will provide the clarity needed to help family farmers. This bill, which has been worked on over the past year to make sure the problem is addressed correctly, adds a new section 1232 to title 11 of the United States Code. This new section, along with other conforming changes to the Bankruptcy Code, will provide clarity to practitioners and courts as to how these claims are to be treated during bankruptcy. I am pleased that what we are introducing today, building from the bill we introduced last Congress, is an improved product that can help family farmers who are facing hard times. The Family Farmer Bankruptcy Clarification Act of 2013 will ensure that what Congress sought to do in 2005 actually occurs. In the wake of the Hall decision, clarification is needed to help family farmers reorganize successfully. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce, along with Senator Franken, the Family Farmer Bankruptcy Clarification Act of 2013. We introduced similar legislation in the 112th Congress, but the Senate never had a chance to consider the bill. The bill addresses the 2012 United States Supreme Court case Hall v. United States. In a 5-4 decision, the Supreme Court ruled that a provision I inserted into the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act did not accomplish what we in Congress intended. The Family Farmer Bankruptcy Clarification Act of 2013 corrects this and clarifies that bankrupt family farmers reorganizing their debts are able to treat capital gains taxes owed to a governmental unit, arising from the sale of farm assets during a bankruptcy, as general unsecured claims. This bill will remove the Internal Revenue Service's veto power over a bankruptcy reorganization plan's confirmation, giving the family farmer a chance to reorganize successfully. In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide a specialized bankruptcy process for family farmers. In 2005 Chapter 12 was made permanent. Between 1986 and 2005 we learned what aspects worked and did not work for family farmers reorganizing in bankruptcy. One problematic area was where a family farmer needed to sell assets in order to generate cash for the reorganization. Specifically, a family farmer would have to sell portions of the farm to generate cash to fund a reorganization plan so that the creditors could receive payment. Unfortunately, in situations like this, the family farmer is selling land that has been owned for a very long time, with a very low cost basis. Thus, when the land is sold, the family farmer is hit with a substantial capital gains tax, which is owed to the Internal Revenue Service. Under the Bankruptcy Code, taxes owed to the Internal Revenue Service receive priority treatment. Holders of priority claims must receive payment in full, unless the claim holder agrees to be treated differently. This creates problems for the family farmer who needs the cash to pay creditors to reorganize. However, since the Internal Revenue Service has the ability to require full payment, they hold veto power over a plan's confirmation, which means in many instances the plan will not be confirmed. This does not make sense if the goal is to give the family farmer a fresh start. Thus, in 2005 Congress said that in these limited situations, the taxes owed to the Internal Revenue Service would be stripped of their priority and treated as general, unsecured debt. This removed the government's veto power over plan confirmation and paved the way for family farmers to reorganize. Unfortunately, in Hall v. United States, the Supreme Court ruled that despite Congress's express goal of helping family farmers, the language inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. The Hall case was one of statutory interpretation. There is no question what Congress was trying to do; rather, did Congress use the correct language? My goal, along with others at the time, was to relieve family farmers from having their reorganization plans fail because of huge tax liabilities to the federal government. Justice Breyer noted this in the dissent: ``Congress was concerned about the effect on the farmer of collecting capital gains tax debts that arose during, and were connected with, the Chapter 12 proceedings themselves. . . . The majority does not deny the importance of Congress' objective. Rather, it feels compelled to hold that Congress put the Amendment in the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897 (2012) (Breyer, J., dissenting) (internal citations and quotations omitted). As a result of the Hall case, family farmers facing bankruptcy now find themselves caught in a tough spot. The rules have now changed and must be corrected in order to provide certainty and clarity in the law. The Family Farmer Bankruptcy Clarification Act of 2013 will provide the clarity needed to help family farmers. This bill, which has been worked on over the past year to make sure the problem is addressed correctly, adds a new section 1232 to title 11 of the United States Code. This new section, along with other conforming changes to the Bankruptcy Code, will provide clarity to practitioners and courts as to how these claims are to be treated during bankruptcy. I am pleased that what we are introducing today, building from the bill we introduced last Congress, is an improved product that can help family farmers who are facing hard times. The Family Farmer Bankruptcy Clarification Act of 2013 will ensure that what Congress sought to do in 2005 actually occurs. In the wake of the Hall decision, clarification is needed to help family farmers reorganize successfully. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I ask unanimous consent to speak for up to 15 minutes on the Todd nomination.