Tom Harkin

Mr. HARKIN

Mr. HARKIN. Mr. President, we find ourselves in yet another ``Alice in Wonderland'' moment here in the Senate. We are again on the brink of a government shutdown for no reason other than the House Republicans' absolute obsession with repealing the Affordable Care Act. Their strategy isn't anything new. They are running the same old plays out of the same old playbook that they have used for 3 years. None of these attempts have worked, but failure is no deterrent if all you care about is scoring political points with your political base. The House has voted 42 times to repeal or defund the Affordable Care Act. You would think after the first 41, they might get a sense that it is just a waste of time. But, no, the House is at it again, risking the widespread economic damage that a government shutdown would cause just so they can indulge their political obsession yet one more time. I sort of half-facetiously said last weekend that the good news is that the obsessive-compulsive disorder is covered under ObamaCare--just in case these House Republicans might care to use it. Defunding the Affordable Care Act would deprive Americans of all of the law's benefits, such as historic consumer protections, affordable coverage, and cheaper prescription drugs, just to mention a few. Work on the insurance marketplace, which will be open for business, as we know, next Tuesday, would stop. As a result, individuals and small businesses would no longer be able to enroll in affordable comprehensive health insurance through the marketplace, nor would they receive possible tax credits to help them with their premium payments. In addition, the planned expansion for Medicaid would be canceled. Seven million Americans who are projected to enroll in the marketplaces next year and 9 million through expanded Medicaid would lose their coverage. Over the next decade, the number of uninsured would rise by at least 25 million Americans. As if 25 million more uninsured was not bad enough, this bill from the House would cancel all of the hard-earned, long-awaited consumer protections that are in the law to protect every American with insurance, such as coverage for preexisting conditions and coverage of young people on their parents' policies to age 26. So we would kind of go back to the bad old days when insurance companies were in the driver's seat and telling you what kind of health insurance you were entitled to and when and charging you outrageous prices for it. Instead of protecting all Americans against arbitrary limits on coverage, repeal of the Affordable Care Act would take us back to the days when insurance companies could terminate your coverage just when you are the sickest. This would hurt families like Danny and Lisa Grasshoff from Texas who were unable to find coverage that would pay for their son's hemophilia treatment until the Affordable Care Act banned lifetime limits. More than 105 million Americans are currently protected by this provision, more than 105 million who are protected under the Affordable Care Act. Instead of allowing young people to start a new job or new business or go off to school and stay on their parents' policy until they are age 26--which they can do now under the Affordable Care Act--repeal would make them fend for themselves in a chaotic insurance place that offers too little coverage for too much money. More than 3 million young Americans are currently covered and are taking advantage of this protection. They would lose it under the House bill. All 105 million Americans protected from a ban on lifetime limits would lose it under the House bill. Now, instead of protecting 130 million nonelderly Americans who have preexisting conditions--such as high blood pressure, diabetes, heart disease--denial of coverage repeal would put the insurance companies back in the driver's seat. They would be picking and choosing whom they want to cover. There are 130 million Americans who are covered under that ban on preexisting conditions. Instead of helping all Americans prevent illness or disease by providing preventive services, such as colonoscopies, repeal would allow insurers to charge expensive copays. Sometimes they can pay as much as $300 for these essential services. I just talked to a friend of mine who recently went in for his annual checkup. He got an annual checkup and advice on how he should handle his health care, and there were no copays and no deductibles under the Affordable Care Act. Repeal under the House bill would deprive States and localities of vital funding to combat chronic diseases such as cancer, diabetes, and heart disease. Thanks to health reform, the Prevention and Public Health Fund is saving lives and cutting costs by supporting such programs. Cutting off funding would immediately stop States' work in building the health insurance marketplaces. I just mentioned that it will start next Tuesday. These will be transparent, easy to understand, one-stop shops so individuals and small businesses can purchase affordable coverage. It starts next Tuesday. These marketplaces have been endorsed by experts all across the political spectrum because for the first time they will create a real marketplace for health insurance. Individuals and small businesses have the same purchasing power and choice that only big companies enjoyed before. Again, this will have a direct pocketbook impact. Premium rates are coming in from marketplaces across the country, and they are much lower than projected. In fact, my home State of Iowa released rates last week that independent experts say are some of the lowest in the country--in the marketplace. Well, the House bill would take that away. It would stop that. Why would we want to do something like that when we are providing a really good deal for consumers? Most importantly, these exchanges are a centerpiece of a system that will bring coverage, as I said earlier, to more than 25 million Americans who otherwise would be uninsured and living with the oppressive fever of being one illness away from bankruptcy or not knowing if they can afford a doctor's visit for their child. Why would anyone want to stop this? Why would anyone tell States: Stop what you are doing to serve your citizens. That is exactly what the House bill does. If we pass that House bill, Congress will turn its back on America's seniors, tossing out hard-won improvements in Medicare benefits. It would take us back to the days when Medicare prescription drug coverage had a giant gap. We all know that as the doughnut hole. It is in the middle, exposing millions of seniors to the full cost of drugs just when they need the most assistance. Now, health reform closes that doughnut hole step by step until 2020 when it all disappears. I just received this from Iowa. The Affordable Care Act in Iowa is already helping seniors on Medicare. Seniors on Medicare saved $76 million on prescription drugs because of the Affordable Care Act in Iowa--just in Iowa, $76 million. If we adopt the House bill, it takes that away. It reopens that doughnut. There are 6.6 million seniors all across the country who have already saved more than $7 billion in discounts on drugs purchased in the doughnut hole. Repealing this would increase senior drug prices by $5,000 a person over the next 10 years. Why would we want to do that? The House bill will roll back the unprecedented investments we make in Medicare fraud prevention. This is another little-known aspect of what we put into the Affordable Care Act. We increased criminal penalties, we launched innovative new technologies to detect and pursue fraudulent activities, and we put more cops on the beat to preserve Medicare funds for beneficiaries--not the quacks and the fraud manipulators. Taxpayers of this country saved $8 for each $1 we put into that program. If you put $1 into it, we are saving $8. Why would we want to repeal that? But the House bill would repeal it. It would hurt seniors' access to health care in rural areas. I come from a rural State. The Presiding Officer comes from a very rural State. We put Affordable Care Act incentive payments paid to rural primary care providers in the Affordable Care Act. The House bill would take that away. As I mentioned earlier, we put provisions in the Affordable Care Act for seniors to get preventive care and wellness visits with no copays and no deductibles. In 2012 more than 34 million American seniors got free preventive services in Medicare. CBO tells us that the improvements we put in the Affordable Care Act to the Medicare payment policy coordination and efficiency will extend the life of the Medicare trust fund by another decade. Republicans are always saying: Well, Medicare is going to go broke. OK. In the Affordable Care Act we did things that the experts say will extend the life of the Medicare trust fund by another decade, and they want to repeal that. It just doesn't make sense. Finally, we come to the most inexplicable part of this debate. Republicans have played the Washington stage politically for all it is worth. We saw an example of that last night when one of our colleagues on the other side kept the Senate in all night long. I think the Senator from Texas started off yesterday at around 2 or something like that--please excuse me if I didn't pay a lot of attention to it--he started at 2 in the afternoon, and it went on all night. He kept the Senate here and went on this morning until about noontime, I guess. I respect every Senator's right to come to the floor and speak unhindered, just as I am doing now. Pretty soon another Senator will speak unhindered, and that is one of the beauties of the Senate. I think we also have a responsibility to be at least a little cognizant-- just a little bit--of how we are burdening others. So, yes, a Senator spent all night here. I wonder if that Senator ever stopped to consider how much it cost the taxpayers to keep this place lit, to keep the clerks and the people here; all the police, all the safety people here and around outside, just to keep this place running, so one person could speak all night. I wonder if he ever considered that. As I say, I don't deny anybody's right to speak. But I have to wonder about responsibility, being responsible to the body and to the public at large. Imagine my surprise when that same Senator who kept people here all night--who kept the lights lit and cost the taxpayers I don't know how many hundreds of thousands of dollars, at least--voted for the very bill he was talking against. It was a 100-to-0 vote today. Some things are hard to grasp around this place. I am sure the public out there watching this will say, Wait a minute, he spoke all night against this bill and against the Affordable Care Act, against ObamaCare, and a few other things too, but then turned around and voted for cloture on the motion to proceed. As I said, some things are pretty hard to understand around this place. I guess one has to define it in terms of pure politics, sometimes just pure politics. Again, here is where he talked about the most inexplicable part. My friends on the other side are making great and solemn speeches about the debt and the deficit, warning us, bringing us within hours of a government shutdown, all in the name, they say, of fiscal discipline. But as a condition for agreeing to fund the government, what do they demand? The repeal of the best deficit-reducing measures we have ever had. The nonpartisan Congressional Budget Office confirms that the Affordable Care Act reduces the deficit by more than $100 billion in the next 10 years, and over $1 trillion in the next 10 years. So, again, let me see if I get this straight. The Republicans propose to reduce the deficit by increasing the deficit. Well, again, as I say, some things are kind of hard to understand around here. I think it is time to stop the silly games. We had our debate. We worked hard on the Affordable Care Act. This debate is not about deficit reduction, it is not about the Nation's fiscal health, it is about tearing down health reform at any cost. Tear it down, get rid of it, go back to the way it was when powerful health insurance companies had control to raise your rates whenever they wanted to, to not give people health coverage if they had a preexisting condition, to deny people coverage when they got sick, cut them off right at that point, deny them benefits, and making insanely big profits doing so. Those are the old days. It seems to me my friends in the Republican Party want to go back to those days, but we don't. The vast majority of the American people say, No, we want to move forward with a health care system that covers everyone and doesn't leave anyone out. Again, as I said, my friend's obsession with repealing this health care bill is not based on budget or something. Sometimes I wonder what it is based on. If someone were to ask me, Senator Harkin, do you think the Affordable Care Act is the end-all and be-all, that it is absolutely perfect, I would have to refer to what I said when we first passed the bill, and it came under my committee, the HELP Committee. I said I like it as I would like a starter home. We might have to add some rooms, we have to add a door here or there or change some of the designs of this or that, but it was like a starter home, to be filled in over months and years ahead, change with changing conditions and circumstances, and as we learned more, as we went ahead, that maybe things would have to be changed in the Affordable Care Act. But the foundation was solid. It has a solid foundation, and a solid structure of making sure that we had a health care marketplace to cover all, that it wasn't controlled by a few; that everybody, no matter how poor, would get health insurance and those who are the poorest would get a government subsidy to buy into that insurance. We wanted to make sure we had good preventive programs, wellness programs, to keep people healthy and out of the hospital in the first place, to change from what I have always said we had in America: We did not have a health care system, we had a sick care system. If you get sick, you get care, but in America we have never had much of anything to keep us healthy in the first place. As I have said many times, in America it is hard to be healthy and easy to be unhealthy. We need to change that around. We need to make it easier to be healthy and harder to be unhealthy. The Affordable Care Act takes steps in that direction, providing free mammograms, cervical cancer screenings, colonoscopies, by providing wellness checkups for people every year, by putting in place community transformation grants where communities could begin to think of how they can structure communities to promote wellness, good activities, and better diets. So, yes, it is like a starter home. Do I think some things will have to change in the Affordable Care Act in the future? I am sure that is true. But that doesn't mean tearing down the structure and digging out the foundation and throwing it all away and going back to where we were before--to square one. The answer is to move ahead. Let's open these marketplaces. Let's get people signed up. If things need to be fixed and changed in the future, that is our job here. It is our job to fix these things and make sure our laws are correctly interpreted and benefit people. It is as though some people have the idea that all we have to do is pass the law and sit back and everything will take care of itself. That is not true. No law is like that. We need to implement them. But we need to do it with good will and in a spirit of compromise and in a spirit of--not everyone knows all the answers, but in a spirit that what we are attempting to do with the Affordable Care Act or ObamaCare, if you will, is to move us in a direction where people will be healthier, where people will have affordable, quality coverage that can't be taken away because they get sick, or be denied because they have a preexisting condition; kids can stay on their parents' policies for a decent length of time after they get through school, and all of the things I spoke about. These are good, solid foundations for a good health care system in America. I think my friends on the other side who want to repeal this are simply on the wrong side of this debate. I am always reminded of what William Buckley once said. He was sort of the father of the modern conservative movement in America. He once said the role of a conservative is to ``stand athwart history yelling, Stop!'' Knowing the late Mr. Buckley, I am sure he probably had a smile on his face when he said it. It seems as though that is what some people are saying: We just want to stop all of this. I have said many times since we first started the Affordable Care Act debates here several years ago, and since we first started working on this, if people have a better idea, come forward and let's take a look at it and see what we come up with, but I haven't seen that yet. I want to close by referring to a couple of letters I got from Iowans. They make it clear what this is all about. Angela from Edgewood writes that she has ``a family history of cancer and now I have been able to have the screenings that I need.'' She asks me how she can volunteer to spread the word to others. Well, I just did. John from Des Moines says that ``because of the ACA--the Affordable Care Act--I have been able to start my own business, I have been able to purchase coverage and am looking forward to the exchanges.'' So the choice is to go forward, to work together to make whatever needed improvements need to be made, to come together as a united American people and to create a reformed health care system that works not just for the healthy and wealthy but for all Americans. That is what this battle is about. That is what this is all about. That is why we don't need to shut the government down. Let's act responsibly. Let's pass a short-term continuing resolution without defunding the Affordable Care Act or all of this other nonsense dealing with the debt ceiling increase, and then let's get down to the hard work of working together to make sure we fund the government next year as we bring this session of Congress to a close later in November or December. Hopefully, in the next couple of days the Senate will act and we will let the House know we are not going to defund the Affordable Care Act.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that Daniel Goldberg, Samantha Aster, and Whitney Waite of my staff be granted floor privileges for the duration of today's session.

Ms. HARKIN

Ms. HARKIN. Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in executive session on Wednesday, September 18, 2013, at 10 a.m. in room 430 of the Dirksen Senate Office Building to mark-up S. 1086, The Child Care and Development Block Grant Act of 2013, the Committee Funding Resolution for the 113th Congress, the nominations of Richard F. Griffin, Jr., to serve as General Counsel of the National Labor Relations Board, and Scott Dahl, to serve as Inspector General of the US Department of Labor, as well as any additional nominations cleared for action. For further information regarding this meeting, please contact the Committee at (202) 224-5375. Committee on Health, Education, Labor, and Pensions

Ms. HARKIN. Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in open session on Thursday, September 19, 2013. at 10 a.m. in room 430 of the Dirksen Senate Office Building to conduct a hearing entitled ``The Triad: Promoting a System of Shared Responsibility. Issues for Reauthorization of the Higher Education Act'' For further information regarding this meeting, please contact the Committee at (202) 224-5501. Committee on Health, Education, Labor, and Pensions

Ms. HARKIN. Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in open session on Tuesday, September 24, 2013. at 10 a.m. in room 430 of the Dirksen Senate Office Building to conduct a hearing entitled ``U.S. Efforts to Reduce Healthcare-Associated Infections'' For further information regarding this meeting, please contact the Committee at (202) 224-7675. committee on indian affairs

Mr. HARKIN

Mr. HARKIN. Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in open session on Thursday, September 12, 2013, at 10 a.m. in room 430 of the Dirksen Senate Office Building to conduct a hearing entitled ``Dental Crisis in America: The Need to Address Cost'' For further information regarding this meeting, please contact Sophie Kasimow of the committee staff on (202) 224-5480. Committee on Rules and Administration Mr. SCHUMER, Mr. President, I wish to announce that the Committee on Rules and Administration will meet at 10 a.m., on Tuesday, September 10, 2013, to consider the nominations of Ann Miller Ravel and Lee E. Goodman to be members of the Federal Election Commission and to consider an original resolution authorizing expenditures by the Senate Committee on Rules and Administration for the remainder of the 113th Congress. For further information regarding this meeting, please contact Adam Topper at the Rules and Administration Committee at 202-224-6352,

Mr. HARKIN

Mr. HARKIN. Mr. President, I understand we are now in postcloture debate on this nominee. I understand there is up to 8 hours that can be consumed for that purpose, if I am not mistaken.

Mr. HARKIN. I certainly hope we don't have to take that much time. For this nominee and the other four to follow, I am hopeful we can get through them today and get the nominees to the President before we leave here this evening. Today is a day that I and many of my colleagues have long waited for. Because of the bipartisan deal reached on the President's nominees, it looks as though we finally have a path forward to confirm a full slate of nominees to the National Labor Relations Board. A fully confirmed, fully functional board will be a huge step forward for workers and employers in our country, and this will be the first time in over a decade this has happened. Over 75 years ago Congress enacted the National Labor Relations Act, guaranteeing American workers the right to form and join a union and to bargain for a better life. For both union and nonunion workers alike, the act provides for essential protections. It gives workers a voice in the workplace, allowing them to join together and speak out for fair wages, good benefits, and safe working conditions. These rights ensure that the people who do the real work in this country see the benefits when our economy grows and aren't mistreated or put at risk on the job. The National Labor Relations Board is the guardian of these fundamental rights. Workers themselves cannot enforce the National Labor Relations Act; the Board is the only place where people can go if they have been treated unfairly and denied the basic protections the law provides. Thus, the Board plays a vital role in vindicating workers' rights. In the past 10 years the NLRB has secured opportunities for reinstatement for 22,544 employees who were unjustly fired. It has also recovered more than $1 billion on behalf of workers whose rights were violated in the last decade. The Board does not just protect the rights of workers and unions; it also provides relief and remedies to our Nation's employers. The Board is an employer's only recourse if a union commences a wildcat strike or refuses to bargain in good faith during negotiations. The NLRB also helps numerous businesses resolve disputes efficiently. For example, when two unions picketed Walmart in 2012, Walmart filed a claim with the NLRB, and the NLRB negotiated a settlement. So by preventing labor disputes that could disrupt our economy, the work that the Board does is vital to every worker and every business across the Nation. Earlier this year I received a letter from 32 management-side and 15 union-side labor attorneys from across the country who made this point particularly well. It urged the swift confirmation of a full package of five NLRB nominees and said: While we differ in our views over the decisions and actions of the NLRB over the years, we do agree that our clients' interests are best served by the stability and certainty a full, confirmed Board will bring to the field of labor- management relations. I could not agree more. Confirming these nominees swiftly is vitally important because the National Labor Relations Board must have a quorum of three Board members to act. If there are less than three Board members at any time, the Board cannot issue decisions and essentially must shut down. Although the Board currently has three members, Chairman Pearce's term expires on August 27--next month. At that point the Labor Board would be unable to function unless we confirm additional members. Now, that is more than just an administrative headache. It would be a tragedy that denies justice to working men and women across the country. So it is imperative that we act to avoid this and keep the Board open for work. Up until recent times, all of us in Congress agreed that the Board should function for the good of our country and our economy, but in the last few years that understanding has broken down. As I said, it has been a decade since the Board has had five Senate-confirmed members. It is not that qualified people have not been nominated, because they have. The problem is that a few of my colleagues on the other side of the aisle--I am not saying everyone, but a very vocal minority--have been trying to use the nominations process to undermine the mission of the National Labor Relations Board. They, first of all, do not like the National Labor Relations Act, but they know they could never repeal it outright. So what is their solution, this vocal minority on the Republican side? Keep the NLRB inoperable by refusing to confirm nominees regardless of their qualifications. In this case, one of my Republican colleagues announced his intention to filibuster the NLRB nominees 6 days before the nominations were announced, and he openly admitted his intention was to shut down the agency. We have seen lots of nominees deemed unacceptable simply because they have worked on behalf of workers or unions and they support our system of collective bargaining. These nominees have been accused of being biased and called unfit to serve because they worked for labor unions or were lawyers for labor unions. But I would like to point out what the National Labor Relations Act--the law--actually says. I have often quoted from the National Labor Relations Act on this point, and I will do so again right now. Here is what the law says: It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. That is what the law says. The purpose is, again, to encourage ``the practice and procedure of collective bargaining'' for the good of our workers, for the good of our economy, and for the good of our Nation. So if we have a nominee who comes up for the Board who supports collective bargaining, I would think that nominee would be more qualified, not less qualified, to serve on the Board because that nominee understands what the law says. So we should be seeking nominees who are, in the words of one of the nominees before us today, not pro- union, not pro-worker or pro-management, but ``pro-Act''--``pro-Act.'' If you are pro-act, the act says that we should be ``encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.'' That is what the law says. I am optimistic that the nominees before us today will bring this perspective to their work at the Board. All five nominees have diverse backgrounds and are deeply steeped in labor and employment law. While I certainly do not agree with the politics or perhaps the ideology of each nominee, it cannot be disputed that this is a competent and experienced group of lawyers. Given their diverse backgrounds and qualifications, there is no reason this package of nominees should not be confirmed with strong bipartisan support. All five of these nominees have been thoroughly vetted. For the two most recent nominees--Kent Hirozawa and Nancy Schiffer--the vetting process has been quick, but it has been thorough. They have submitted all of the paperwork that we receive for our nominees. They have appeared before our committee in a hearing, answered any questions. They have met with staff for both sides, and they have answered all the written questions posed by members of my committee. They have demonstrated themselves to be impressively qualified and capable, and I look forward to their future service on the Board. So I believe the time has come to start a new chapter for the NLRB. It is time to ratchet down the political rhetoric that has recently haunted this agency and let the dedicated public servants who work there do their jobs. Indeed, I hope today's votes mark a new beginning for the Board, with a new energy and vitality, a new spirit of collaboration. A revitalized NLRB is a critical part of our continued efforts to build a strong economy and a strong middle class. It is long past time to put the Board back in business and to tone down the rhetoric. I say to my friends on the other side--again, a vocal minority-- certainly they can vote against the nominees. That is their right. That is their privilege. But do not use the nomination process to try to shut down the Board or to thwart the implementation of the National Labor Relations Act. I am sure there were times when a majority of the Board was appointed by Republican Presidents and they were probably more promanagement. I cannot think of one right now, but I am sure they probably made some decisions that I would not be in favor of. But they did it openly. There are also times under a Democratic President when the Board would probably have three members who would be more from the labor side than management side. But that is the ebb and flow. Quite frankly, for most of the times in the past, even though Republican Presidents had put nominees on the Board who were probably more promanagement or came from the management side--they would have three of those and then two from the worker or labor side--they still ran the Board in a nonpartisan fashion and reached agreements in an open fashion that were implementing the National Labor Relations Act. I would be hard pressed to think of a time when the Board acted in contradiction to what the act actually says. Until recently--and this has just broken down in the last few years when President Obama's nominees to the Board, in the first instance, were filibustered when the President had to give recess appointments to nominees. Of course, a recess appointment can only last so long, and then that person has to leave the Board. As I said, there was a threat by a Member on the Republican side to filibuster nominees before they were even sent down. That means the Board would have been unable to operate. So the President then gave a recess appointment to two nominees to keep the Board functioning. That then found its way into the courts. We have a couple of courts that decided the President did not have the power to do a recess appointment the way he did it. Other courts have taken different pathways. So that set of facts in that case is winding its way to the Supreme Court. It probably will be decided some time next year. But that is what happens when people do not let nominees who are fully qualified--fully qualified--come to the floor to get an up-or-down vote. So I am very pleased this agreement that was reached a couple weeks ago to not filibuster nominees included the National Labor Relations Board. So we have an agreement from the Republican side that they will not filibuster these nominees. We have five of them. This is the first, Mr. Hirozawa. I am hopeful that, again, since they have been thoroughly vetted, we can move ahead expeditiously to vote on them and that we will not take the full 8 hours to debate these nominees and that each one of them--each one would have 8 hours. But, hopefully, we can collapse that and have the votes on the nominees at some time later this afternoon, and, as I said, turn a new chapter in the NLRB. Put them down there on the Board and let them do their work, and tone down the political rhetoric a little bit on the National Labor Relations Board. Mr. President, I ask unanimous consent that time during all postcloture quorum calls on the Hirozawa nomination be charged equally to both sides.

Mr. HARKIN. I yield the floor and suggest the absence of a quorum.

Mr. HARKIN

Mr. HARKIN. Madam President, I ask unanimous consent the time be yielded back.

Mr. HARKIN. Madam President, I ask unanimous consent that all time be yielded back.

Mr. HARKIN

Mr. HARKIN. Mr. President, today I join with my senior colleague from Iowa, Senator Grassley, and with the distinguished chair of the Judiciary Committee, Senator Leahy, in reintroducing the Protecting Older Workers Against Discrimination Act. The need for this legislation was vividly demonstrated by the experience of an Iowan--Jack Gross. Mr. Gross gave the prime of his life, a quarter century of loyal service, to one company. Despite Mr. Gross's stellar work record, FBL Financial demoted him and other employees over the age of 50 and gave his job to a younger employee. Expressly to prevent this kind of discrimination, in 1967 Congress passed the Age Discrimination in Employment Act, ADEA. Modeled from and using the same language as Title VII of the Civil Rights Act of 1964-- which prohibits employment discrimination on the basis of race, sex, national origin and religion--the ADEA makes it unlawful to discriminate on the basis of age. When Mr. Gross sought to enforce his rights under this law, a jury of Iowans heard the facts and found that his employer discriminated against him because of his age. That jury awarded him almost $47,000 in lost compensation. The case was ultimately appealed to the Supreme Court. In June 2009, in Gross v. FBL Financial, Inc., the Court ruled against Mr. Gross, and in doing so made it harder for those with legitimate age discrimination claims to prevail under the ADEA. In fact, on remand, despite the fact Mr. Gross had established that age discrimination was a factor in his demotion, he lost his retrial. For decades, the law was clear. In 1989, in Price Waterhouse v. Hopkins, the Court ruled that if a plaintiff seeking relief under Title VII of the Civil Rights Act demonstrated that discrimination was a ``motivating'' or ``substantial'' factor behind the employer's action, the burden shifted to the employer to show it would have taken the same action regardless of the plaintiff's membership in a protected class. As part of the Civil Rights Act of 1991, Congress codified the ``motivating factor'' standard with respect to Title VII discrimination claims. Since the ADEA uses the same language as Title VII, was modeled from it, and had been interpreted consistent with the Civil Rights Act, courts rightly and consistently held that, like a plaintiff claiming discrimination on the basis of race, sex, religion and national origin, a victim bringing suit under the ADEA need only show that membership in a protected class was a ``motivating factor'' in an employer's action. If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age. In Gross, the Court, addressing a question on which it did not grant certiorari, tore up this decades' old standard. In its place, the Court imposed a standard that makes it prohibitively difficult for a victim to prove age discrimination. According to the Court, a plaintiff bears the full burden of proving that age was not only a ``motivating'' factor but the ``but for'' factor, or decisive factor. And, unfortunately, just last month the Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, extended Gross to retaliation cases under Title VII of the Civil Rights Act. Moreover, lower courts have extended Gross to other civil rights claims, including cases arising under the Americans with Disabilities Act and the Rehabilitation Act. The extremely high burden Gross imposes radically undermines workers' ability to hold employers accountable. As Professor Helen Norton testified to the HELP Committee, ``Gross entirely insulates from liability even an employer who confesses discrimination so long as that employer had another reason for its decision. By permitting employers to escape liability altogether even for a workplace admittedly infected by discrimination, with no incentive to refrain from similar discrimination in the future, the Gross rule thus undermines Congress's efforts to stop and deter workplace discrimination.'' Bear in mind, unlawful discrimination is often difficult to detect. Obviously, those who discriminate do not often admit they are acting for discriminatory reasons. Employers rarely post signs saying, for example, ``older workers need not apply.'' To the contrary, they go out of their way to conceal their true intent. The employer is in the best position to offer an explanation of why a decision that involves discrimination or retaliation was actually motivated by legitimate reasons. As Professor Norton testified, ``[s]uch burden shifting appropriately recognizes and responds to employers' greater access to information that is key to proving or disproving an element of a particular claim . . .'' By putting the entire burden on the worker to demonstrate the absence or insignificance of other factors, the court in effect has freed employers to discriminate or retaliate. Unfortunately, as Mr. Gross and his colleagues know all too well, age discrimination does indeed occur. Countless thousands of American workers who are not yet ready to voluntarily retire find themselves jobless or passed over for promotions because of age discrimination. Older workers often face stereotypes: That they are not as productive as younger workers; that they cannot learn new skills; that they somehow have a lesser need for income to provide for their families. Indeed, according to an AARP study, 60% of older workers have reported that they or someone they know has faced age discrimination in the workplace. According to the Equal Employment Opportunity Commission, in Fiscal Year 2012, over 2,800 age discrimination complaints were filed, a more than 20 percent increase from just five years ago. Given the stereotypes that older workers face, it is no surprise that on average they remain unemployed for more than twice as long as all unemployed workers. The Protecting Older Workers Against Discrimination Act reiterates the principle that Congress established when it passed the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act and the Americans with Disabilities Act--when making employment decisions it is illegal for race, sex, national origin, religion, age or disability to be a factor. The bill repudiates the Supreme Court's Gross v. FBL Financial decision and will restore the law to what it was for decades. It makes clear that when an employee shows discrimination was a ``motivating factor'' behind a decision, the burden is properly on the employer to show the same decision would have been made regardless of discrimination or retaliation. And, like the Civil Rights Act of 1991 with respect to discrimination cases under Title VII, if the employer meets that burden, the employer remains liable, but remedies are limited. This is a common sense, bipartisan bill. In fact, the Civil Rights Act of 1991, key provisions of which served as a model for this legislation, passed the Senate on a bipartisan basis 93-5. Further, we are introducing this bill only after countless hours of consultation with civil rights stakeholders and representatives of the business community. Moreover, this bill addresses the concerns that were raised about an earlier version of the bill at a hearing held before the Health, Education, Labor, and Pensions Committee in March 2010. In fact, I want to comment on two changes from that earlier version of this bill introduced in the last Congress. Since October 2009, when Senator Leahy and I first introduced the Protecting Older Workers Against Discrimination Act, we have had the benefit of nearly three and a half years of lower court application of the Gross decision. The 2009 bill would have expressly amended the ADEA to make clear that the analytical framework set out in McDonnell Douglas v. Green applied to that statute. Even though, before Gross, every Court of Appeals had held that McDonnell Douglas had applied to age claims, this clarification was meant to address a footnote in Gross in which the Court arguably questioned the applicability of McDonnell Douglas to the ADEA. Since the bill was first introduced, however, every lower court that has examined the issue has continued to apply McDonnell Douglas to the ADEA. As a result, because McDonnell Douglas applies to the ADEA already, we deem it unnecessary to amend the statute. Second, the initial bill expressly amended only the ADEA. Since Gross, however, lower courts have applied the Court's reasoning in that decision to other statutes. Because the most notable application has been to the ADA, Rehabilitation Act and Title VII retaliation claims, those statutes are expressly amended here too. Finally, in Gross, the Court defended the Court's departure from well-established law by noting that it ``cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA.'' In other words, the Court found that because Congress, in the Civil Rights Act of 1991, codified the ``motivating factor'' framework for discrimination claims under Title VII, but not for the ADEA, Congress somehow must have intended Price Waterhouse not to apply to any statute but Title VII. Because of the Court's reasoning, I want to emphasize that this bill in no way questions the motivating factor framework for other anti- discrimination and anti-retaliation statutes that are not expressly covered by the legislation. As the bill's findings make clear, not only does this bill repudiate the Gross decision itself, but it expressly repudiates the reasoning underlying the decision, including the argument that Congress's failure to amend any statute other than Title VII means that Congress intended to disallow mixed motive claims under other statutes. It would be an error for a court to apply similar reasoning following passage of this bill to other statutes. The fact that other statutes are not expressly amended in this bill does not mean that Congress endorses Gross's application to any other statute. In conclusion, this bill is very straightforward. It reiterates what Congress said in 1967 when it passed the ADEA--when making employment decisions it is illegal for age to be a factor. A person should not be judged arbitrarily because he or she was born in a certain year or earlier when he or she still has the ability to contribute as much, or more, as the next person. This bill will help ensure that all our citizens will have an equal opportunity, commensurate with their abilities, for productive employment. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HARKIN

Mr. HARKIN. Mr. President, today I join with my senior colleague from Iowa, Senator Grassley, and with the distinguished chair of the Judiciary Committee, Senator Leahy, in reintroducing the Protecting Older Workers Against Discrimination Act. The need for this legislation was vividly demonstrated by the experience of an Iowan--Jack Gross. Mr. Gross gave the prime of his life, a quarter century of loyal service, to one company. Despite Mr. Gross's stellar work record, FBL Financial demoted him and other employees over the age of 50 and gave his job to a younger employee. Expressly to prevent this kind of discrimination, in 1967 Congress passed the Age Discrimination in Employment Act, ADEA. Modeled from and using the same language as Title VII of the Civil Rights Act of 1964-- which prohibits employment discrimination on the basis of race, sex, national origin and religion--the ADEA makes it unlawful to discriminate on the basis of age. When Mr. Gross sought to enforce his rights under this law, a jury of Iowans heard the facts and found that his employer discriminated against him because of his age. That jury awarded him almost $47,000 in lost compensation. The case was ultimately appealed to the Supreme Court. In June 2009, in Gross v. FBL Financial, Inc., the Court ruled against Mr. Gross, and in doing so made it harder for those with legitimate age discrimination claims to prevail under the ADEA. In fact, on remand, despite the fact Mr. Gross had established that age discrimination was a factor in his demotion, he lost his retrial. For decades, the law was clear. In 1989, in Price Waterhouse v. Hopkins, the Court ruled that if a plaintiff seeking relief under Title VII of the Civil Rights Act demonstrated that discrimination was a ``motivating'' or ``substantial'' factor behind the employer's action, the burden shifted to the employer to show it would have taken the same action regardless of the plaintiff's membership in a protected class. As part of the Civil Rights Act of 1991, Congress codified the ``motivating factor'' standard with respect to Title VII discrimination claims. Since the ADEA uses the same language as Title VII, was modeled from it, and had been interpreted consistent with the Civil Rights Act, courts rightly and consistently held that, like a plaintiff claiming discrimination on the basis of race, sex, religion and national origin, a victim bringing suit under the ADEA need only show that membership in a protected class was a ``motivating factor'' in an employer's action. If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age. In Gross, the Court, addressing a question on which it did not grant certiorari, tore up this decades' old standard. In its place, the Court imposed a standard that makes it prohibitively difficult for a victim to prove age discrimination. According to the Court, a plaintiff bears the full burden of proving that age was not only a ``motivating'' factor but the ``but for'' factor, or decisive factor. And, unfortunately, just last month the Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, extended Gross to retaliation cases under Title VII of the Civil Rights Act. Moreover, lower courts have extended Gross to other civil rights claims, including cases arising under the Americans with Disabilities Act and the Rehabilitation Act. The extremely high burden Gross imposes radically undermines workers' ability to hold employers accountable. As Professor Helen Norton testified to the HELP Committee, ``Gross entirely insulates from liability even an employer who confesses discrimination so long as that employer had another reason for its decision. By permitting employers to escape liability altogether even for a workplace admittedly infected by discrimination, with no incentive to refrain from similar discrimination in the future, the Gross rule thus undermines Congress's efforts to stop and deter workplace discrimination.'' Bear in mind, unlawful discrimination is often difficult to detect. Obviously, those who discriminate do not often admit they are acting for discriminatory reasons. Employers rarely post signs saying, for example, ``older workers need not apply.'' To the contrary, they go out of their way to conceal their true intent. The employer is in the best position to offer an explanation of why a decision that involves discrimination or retaliation was actually motivated by legitimate reasons. As Professor Norton testified, ``[s]uch burden shifting appropriately recognizes and responds to employers' greater access to information that is key to proving or disproving an element of a particular claim . . .'' By putting the entire burden on the worker to demonstrate the absence or insignificance of other factors, the court in effect has freed employers to discriminate or retaliate. Unfortunately, as Mr. Gross and his colleagues know all too well, age discrimination does indeed occur. Countless thousands of American workers who are not yet ready to voluntarily retire find themselves jobless or passed over for promotions because of age discrimination. Older workers often face stereotypes: That they are not as productive as younger workers; that they cannot learn new skills; that they somehow have a lesser need for income to provide for their families. Indeed, according to an AARP study, 60% of older workers have reported that they or someone they know has faced age discrimination in the workplace. According to the Equal Employment Opportunity Commission, in Fiscal Year 2012, over 2,800 age discrimination complaints were filed, a more than 20 percent increase from just five years ago. Given the stereotypes that older workers face, it is no surprise that on average they remain unemployed for more than twice as long as all unemployed workers. The Protecting Older Workers Against Discrimination Act reiterates the principle that Congress established when it passed the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act and the Americans with Disabilities Act--when making employment decisions it is illegal for race, sex, national origin, religion, age or disability to be a factor. The bill repudiates the Supreme Court's Gross v. FBL Financial decision and will restore the law to what it was for decades. It makes clear that when an employee shows discrimination was a ``motivating factor'' behind a decision, the burden is properly on the employer to show the same decision would have been made regardless of discrimination or retaliation. And, like the Civil Rights Act of 1991 with respect to discrimination cases under Title VII, if the employer meets that burden, the employer remains liable, but remedies are limited. This is a common sense, bipartisan bill. In fact, the Civil Rights Act of 1991, key provisions of which served as a model for this legislation, passed the Senate on a bipartisan basis 93-5. Further, we are introducing this bill only after countless hours of consultation with civil rights stakeholders and representatives of the business community. Moreover, this bill addresses the concerns that were raised about an earlier version of the bill at a hearing held before the Health, Education, Labor, and Pensions Committee in March 2010. In fact, I want to comment on two changes from that earlier version of this bill introduced in the last Congress. Since October 2009, when Senator Leahy and I first introduced the Protecting Older Workers Against Discrimination Act, we have had the benefit of nearly three and a half years of lower court application of the Gross decision. The 2009 bill would have expressly amended the ADEA to make clear that the analytical framework set out in McDonnell Douglas v. Green applied to that statute. Even though, before Gross, every Court of Appeals had held that McDonnell Douglas had applied to age claims, this clarification was meant to address a footnote in Gross in which the Court arguably questioned the applicability of McDonnell Douglas to the ADEA. Since the bill was first introduced, however, every lower court that has examined the issue has continued to apply McDonnell Douglas to the ADEA. As a result, because McDonnell Douglas applies to the ADEA already, we deem it unnecessary to amend the statute. Second, the initial bill expressly amended only the ADEA. Since Gross, however, lower courts have applied the Court's reasoning in that decision to other statutes. Because the most notable application has been to the ADA, Rehabilitation Act and Title VII retaliation claims, those statutes are expressly amended here too. Finally, in Gross, the Court defended the Court's departure from well-established law by noting that it ``cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA.'' In other words, the Court found that because Congress, in the Civil Rights Act of 1991, codified the ``motivating factor'' framework for discrimination claims under Title VII, but not for the ADEA, Congress somehow must have intended Price Waterhouse not to apply to any statute but Title VII. Because of the Court's reasoning, I want to emphasize that this bill in no way questions the motivating factor framework for other anti- discrimination and anti-retaliation statutes that are not expressly covered by the legislation. As the bill's findings make clear, not only does this bill repudiate the Gross decision itself, but it expressly repudiates the reasoning underlying the decision, including the argument that Congress's failure to amend any statute other than Title VII means that Congress intended to disallow mixed motive claims under other statutes. It would be an error for a court to apply similar reasoning following passage of this bill to other statutes. The fact that other statutes are not expressly amended in this bill does not mean that Congress endorses Gross's application to any other statute. In conclusion, this bill is very straightforward. It reiterates what Congress said in 1967 when it passed the ADEA--when making employment decisions it is illegal for age to be a factor. A person should not be judged arbitrarily because he or she was born in a certain year or earlier when he or she still has the ability to contribute as much, or more, as the next person. This bill will help ensure that all our citizens will have an equal opportunity, commensurate with their abilities, for productive employment. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HARKIN

Mr. HARKIN. Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in executive session on Wednesday, July 31, 2013, at 10 a.m. in room 608 of the Dirksen Senate Office Building to mark-up S. 1356, Workforce Investment Act of 2013, the nominations of Robert F. Cohen, Jr., of West Virginia, to be a member of the Federal Mine Safety and Health Review Commission, William I. Althen, of Virginia, to be a member of the Federal Mine Safety and Health review Commission, Catherine E. Lhamon, of California, to be Assistant Secretary for Civil Rights, Department of Education as well as any additional nominations cleared for action. For further information regarding this meeting, please contact the Committee at (202) 224-5375.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on July 30, 2013, at 9:30 a.m.

Mr. HARKIN. Mr. President, I ask uanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on July 30, 2013, at 10 a.m., to conduct a hearing entitled ``Mitigating Systemic Risk in Financial Markets Through Wall Street Reforms.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on July 30, 2013, at 2:30 p.m. in room 253 of the Russell Senate Office Building.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on July 30, 2013, at 2:30 p.m., in room 366 of the Dirksen Senate Office Building.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on July 30, 2013.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on July 30, 2013, at 2:15 p.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on July 30, 2013, at 2:30 p.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on July 30, 2013, at 2:30 p.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Antitrust, Compensation Policy, and Consumer Rights, be authorized to meet during the session of the Senate, on July 30, 2013, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Standard Essential Patent Disputes and Antitrust Law.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Subcommittee on Public Lands, Forests, and Mining of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on July 30, 2013, at 10 a.m. in room SD-366 of the Dirksen Senate Office building.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that a legal fellow in Senator Blumenthal's office, Afton Cissell, be granted floor privileges for the duration of July 30, 2013.