Tom Harkin

Mr. HARKIN

Mr. HARKIN. Mr. President, the contentions made by the Senator are absolutely wrong. We had a hearing on this. We explored it in our committee. Instead of the 1,200 e-mails they cite, we are talking about that over a 3\1/2\-year period there were 35 e-mails located on his personal emails that touched Department of Justice business and were not forwarded to the Department of Justice, and those have been looked at, and none of them demonstrate that he acted improperly or unethically. When they were discovered, the e-mails were immediately forwarded to the DOJ server and are now part of the DOJ record retention system. I might add that the 35 e-mails were made available to the House Oversight Committee staff prior to Mr. Perez's confirmation hearing, and the Senate HELP Committee staff have also been offered access to review all of those e-mails. The contentions made by the Senator from Florida are just absolutely wrong.

Mr. HARKIN

Mr. HARKIN. Mr. President, today the Senate is now considering the nomination of Thomas Perez to serve as Secretary of Labor. It has been a long road to get here. I am pleased that we finally have the opportunity to consider Mr. Perez's nomination on its merits. Tom Perez's life is a story of the American dream. The child of immigrants from the Dominican Republic, he lost his father at a young age. He worked very hard at not very glamorous jobs to put himself through Brown University, working at a warehouse as a garbage collector and the school dining hall. His incredible work ethic helped him graduate with honors from the Harvard Law School and the Kennedy School of Government. With such an impressive resume, Tom Perez could have done pretty much anything with those degrees and accomplishments. He could have made a lot of money in the private sector. But, instead, Mr. Perez chose to become a public servant. He has dedicated his career to ensuring that every American has the same opportunity he had to pursue the American dream. From his early years at the Department of Justice, where he helped to prosecute racially motivated hate crimes and chaired a task force to prevent worker exploitation, to his time at the Maryland Department of Labor, where he helped struggling families avoid foreclosure and revamped the State's adult education system, Mr. Perez has demonstrated his unwavering commitment to building opportunity for all Americans. It is this commitment to building opportunity for all that makes Tom Perez an ideal choice for Secretary of Labor. Of all the executive agencies, it may be the Department of Labor that touches the lives of ordinary Americans the most on a day-to-day basis. The Department of Labor ensures that every American receives a fair day's pay for a hard day's work and can come home from work safely in the evening. It helps ensure that a working mother can stay home to bond with her newborn child and still have a job to return to. It helps workers who have been laid off, veterans returning from military service, others who face special employment challenges to build new skills and build opportunities for a lifetime. It helps guarantee that hard-working people who have saved all of their lives for retirement can enjoy their golden years with security and peace of mind. As our country continues to move down the road to economic recovery, the work of the Department of Labor will become even more critical. The Department will play a vital role in determining what kind of recovery we have, a recovery that benefits only a select few or one that rebuilds a strong American middle class where everyone who works hard and plays by the rules can build a better life. Now more than ever we need a dynamic leader at the helm of the Department of Labor who will embrace a bold vision of shared prosperity and help make that vision a reality for American families. I am confident that Tom Perez is up for that challenge. Without question, Tom Perez has the knowledge and experience needed to guide this critically important agency. Throughout his professional experiences and especially during his work as the secretary of the Maryland Department of Labor, Licensing and Regulation--that would be Maryland's equivalent of our Secretary of Labor. During that time, he has developed strong policy expertise on the many important issues for American workers and businesses that come before the Department of Labor each day. He also clearly has the management skills to run a large Federal agency effectively. Perhaps most importantly, Tom Perez knows how to bring people together to make progress on even controversial issues. He knows how to hit the ground running, how to quickly and effectively become an agent of real change. That is exactly the kind of leadership we need at the Department of Labor. The fact is, Tom Perez is an extraordinary nominee to serve as Secretary of Labor. I hope the Senate will overwhelmingly confirm him to this vital position. This is not the first time this body has considered Mr. Perez's qualifications. In October 2009, on a bipartisan 72-to-22 vote, the Senate confirmed Mr. Perez to serve as Assistant Attorney General for Civil Rights. In more than 3\1/2\ years in that position, Mr. Perez has skillfully and vigorously enforced our Nation's civil rights laws and has revitalized the Civil Rights Division. As has been documented by numerous inspector general and Office of Professional Responsibility reports, as well as congressional investigations, the Bush administration had decimated the Civil Rights Division, failed to properly enforce our most critical civil rights laws, and politicized hiring and decisionmaking. That has changed dramatically under Mr. Perez. As Attorney General Holder has said, Mr. Perez made it clear from the moment he was confirmed that the Civil Rights Division was ``once again open for business.'' During Mr. Perez's tenure as head of the Civil Rights Division, he stepped up enforcement of civil rights laws and restored integrity and professionalism. I wish to review some of the successes under Mr. Perez's leadership at the Civil Rights Division. That division settled the three largest fair lending cases in the history of the Fair Housing Act. Let me repeat that--three largest cases in the history of the Fair Housing Act. As a result, the division in 2012 recovered more money for victims under the Fair Housing Act than in the previous 23 years combined. In total, $660 million in monetary relief has been obtained in lending settlements. Later in my remarks I will go over some of the allegations made by Senators on the other side about Mr. Perez's handling of another situation of the Civil Rights Division that was also covered by the Fair Housing Act. I wish to make this clear, that Mr. Perez, as I said, settled the three largest fair lending cases in the history of the Fair Housing Act. This shows he was vigorous in enforcing the Fair Housing Act. The Civil Rights Division has been involved in 44 Olmstead matters in 23 States, matters that ensure that people with disabilities have the choice to live in their own homes and communities, rather than only in institutional settings. These efforts included four settlement agreements the division has signed with the States of Georgia, Delaware, Virginia, and North Carolina. The Civil Rights Division obtained a $16 million settlement, the largest ever, to enforce the Americans With Disabilities Act. Reached in 2011, the settlement requires 10,000 bank and financial-related retail offices to ensure access for people with speech or hearing disabilities. Imagine that, almost 20 years after the passage of the Americans With Disabilities Act, we had banks and financial offices that were not making their services available to people with disabilities. The division had to go after them and, as I said, obtained a settlement, $16 million, the largest ever in the history of the Americans With Disabilities Act. The Civil Rights Division handled more new cases under the Voting Rights Act in 2012 than in any previous year ever. The division increased the number of human trafficking prosecutions by 40 percent during the past 4 years, including a record number of cases in 2012. The division, since 2009, brought 46 cases to protect the employment rights of servicemembers, a 39-percent increase over the previous 4 years of the Bush administration. Based on his stellar record of achievement at the Department of Justice alone, Mr. Perez deserves to be confirmed. But despite these accomplishments, some of my Republican colleagues have claimed Mr. Perez should not be confirmed. In fact, we had about 40 who voted against Mr. Perez to move to cloture. Now they are trying to say we should not confirm him. As the chairman of the committee with oversight jurisdiction, and as chairman of the Appropriations subcommittee that funds the Department of Labor, I can assure you I have looked carefully into Mr. Perez's background and record of service. I can assure everyone that Tom Perez has the strongest record possible of professional integrity and that any allegations to the contrary are totally unfounded. What is clear is that Tom Perez is passionate about enforcing civil rights laws and protecting people's rights. In my view, that passion makes him not only qualified but the ideal person to be Secretary of Labor. I do wish to address some of the specific claims we have heard and probably will continue to hear about Mr. Perez. First, some have harped on the Justice Department's enforcement decision involving the New Black Panther Party. I hope my colleagues don't choose to rehash this matter. Mr. Perez had no involvement in this case, zero. Mr. Perez was not at the Department of Justice when the decision concerning the Black Panthers occurred. The charges were dismissed in May of 2009. Mr. Perez was not confirmed until October of 2009. Second, some have questioned several enforcement actions related to the Voting Rights Act and the motor voter law, most notably in Louisiana, Texas, and South Carolina. They have pointed to these cases to claim that Mr. Perez is somehow biased in his enforcement of the law. Again, I hope my colleagues don't try to rehash these meritless claims. The Department of Justice inspector general, an independent inspector general, investigated these claims and recently concluded: ``The decisions that Division or Section leadership made in controversial [voting] cases did not substantiate claims of political or racial bias.'' The inspector general specifically noted that ``allegations of politicized decisionmaking . . . were not substantiated.'' Anybody can make allegations, but you have to substantiate them. The allegations that he was acting in a politically motivated or biased manner were never ever substantiated. In fact, in the election-related cases Mr. Perez's critics have focused on, the courts ended up agreeing with the Department of Justice's conclusions that the law had been broken. This means that some oppose Mr. Perez's confirmation precisely because he did his job by enforcing newly enacted laws and by pursuing meritorious cases. Is our confirmation process here so broken that the act, that act of enforcing duly enacted laws, becomes grounds for opposing a nominee? Third, some Republicans assert Mr. Perez masterminded an improper deal whereby the City of St. Paul dropped an appeal in a case related to the Fair Housing Act in a case called Magner. In return, the Department of Justice decided not to intervene in a False Claims Act brought by a St. Paul resident in another case called the Newell case. During this debate, I expect we will hear a lot about the alleged millions of dollars Mr. Perez himself personally cost the Federal Government in lost damages because the government did not intervene and prevail in the Newell case. It is clear from all of the investigations we have done that rather than being the scandal as some Republicans claim, the evidence shows that Mr. Perez acted ethically and appropriately at all times. I wish to go through this because it is important to set the record straight from these kinds of phony allegations that have been made by some here about Mr. Perez. The Magner case was a case involving the Fair Housing Act. In 2011, the Supreme Court granted certiorari to consider whether that act permits a disparate impact claim. This is a claim challenging actions that are not intentionally discriminatory but, in essence, having a discriminatory effect, called the disparate impact claim. The case involved an unusual set of facts. Instead of minorities and low-income persons using the Fair Housing Act to challenge improper lending practices, zoning laws, or real estate practices, as is typical with the case with most Fair Housing Act litigation, this specific case involved slumlords--not low-income renters or people being taken advantage of. This case involved slumlords in St. Paul using the Fair Housing Act to challenge the city's efforts to better enforce their housing codes against those slumlords. Let's look at this case. Lawyers make strategic judgments all the time about which cases should be appealed. Here it is clear why the Department of Justice had a strong interest in this matter. As they have often said, as we all learned in law school, bad facts make bad law. The Justice Department did not want the Supreme Court to consider the viability of the disparate impact principle in a case where slumlords were trying to abuse the law to their advantage. There was too much at stake here. The Civil Rights Division, under Mr. Perez, had used, applying disparate impact principle, a standard of law recognized under the Fair Housing Act by each of the 11 courts of appeal to address the issue. They had used this, as I mentioned earlier, to reach settlements totaling $644 million against lenders who discriminated against potential homebuyers in violation of the Fair Housing Act. As I said earlier, that is more money for victims under the Fair Housing Act than in the previous 23 years combined. I think it is very clear that Mr. Perez led his division in applying the disparate impact principle to gain a lot of settlements and to help people who were discriminated against. It was vital to preserve this valuable enforcement tool. Civil rights leaders, as well as Mr. Perez, encouraged the City of St. Paul to withdraw the appeal. Mr. Perez encouraged the City of St. Paul not to appeal the case to the Supreme Court against something entirely appropriate and entirely in the interests of the United States. When Mr. Perez reached out to the city, the City of St. Paul raised the Newell matter, another case. This was the first time Mr. Perez had heard about the case. At that time the city suggested, the City of St. Paul, suggested it would drop its Magner appeal if the Department of Justice did not intervene in Newell, an unrelated False Claims Act case in which a St. Paul resident, Mr. Newell, had alleged--had alleged-- that the City of St. Paul had not met its obligation to provide sufficient minority job-training programs despite certifying to HUD that it was doing so. As I said, it is a little complicated. At this point, the evidence further demonstrates that Mr. Perez acted with the highest integrity and ethics. After this became known to him, Mr. Perez consulted two ethics and professional responsibility experts at the Department of Justice. It was made clear to him that because the United States is a unitary actor, the two matters could be considered together as long as the Civil Division, which deals with False Claims Act matters, retained the authority over the Newell case, which was a false claims matter, not a civil rights matter. A written response Mr. Perez received said--this again is from the ethics people at the Department of Justice--``There is no ethics rule implicated by this situation and therefore no prohibition against your proposed course of action''--your proposed course of action, which was to get the City of St. Paul to drop its appeal. At all times, Mr. Perez acted appropriately within the ethical guidance he received. Further, contrary to some Republican claims, Mr. Perez was not responsible for the Department's decision not to intervene in Newell. In fact, the decision not to intervene in Newell was made by career attorneys and experts on the False Claims Act within the Civil Division--not by Mr. Perez, who was head of the Civil Rights Division. The head of the Civil Division Tony West at all times retained the authority to make the decision regarding the Newell case. At the time the Supreme Court agreed to hear the Magner case, both HUD--Housing and Urban Development--and the Minnesota U.S. Attorney's Office had recommended intervening in the Newell matter. After learning of the Department of Justice concerns with regard to the Magner appeal, the general counsel for HUD--Department of Housing and Urban Development--told the House that she reversed her recommendation, stating: If the decision had been totally mine in October, and there weren't any dealings with the Department of Justice that I needed to worry about in terms of a relationship with the Department of Justice, we never--we never would have recommended intervening, and if it were my decision whether to intervene or not, I never would have intervened. At the same time, the person who led consideration of the case in the Civil Division was a very senior career attorney and an expert on the False Claims Act, Mr. Mike Hertz. Although Mr. Hertz has since passed away, colleagues testified that he told them after meeting with the City of St. Paul that Mr. Hertz said, ``This case sucks,'' meaning the Newell case. Again, this was the view of the Newell matter by Mr. Mike Hertz, the leading career expert on the False Claims Act. So upon learning that HUD had reversed its position, the U.S. Attorney's Office became concerned about the ability to proceed with the case. Staff in the U.S. Attorney's Office told staff at the Department of Justice they were also likely to change their position on intervening in the Newell case. As the ultimate decisionmaker in the Newell matter, the head of the Department of Justice Civil Division, Tony West, told the House: [B]y early, mid-January, there was a consensus that had coalesced in the Civil Division that we were going to decline the Newell case. . . . My understanding is that certainly was Mike Hertz' view, it was Joyce Branda's view, and that represented the view of the branch, U.S. Attorney's Office. Also, I think around that time period would be included in that consensus, it was my view too. It was the view of the client agency, HUD. So what he is saying is, when we looked at this, we found the Newell case was not a very good case. Earlier today, it was suggested Mr. Perez tried to cover up the fact that the Magner appeal played a role in the Department's decision not to intervene. This is not correct. Despite indicating that they intended to change their recommendation, by mid-January the U.S. Attorney's Office formal decision memo recommending not intervening in the Newell case had not been received. Mr. Perez reached out to an assistant U.S. attorney, leaving a voice message suggesting that the Magner case should not be included in that formal recommendation. When he was asked about the voice mail, Mr. Perez explained to the House his concern was not with the specifics of what was in the memo but rather was directed at trying to resolve an issue he thought might be the source of the delay. Mr. Perez told the House that when he ultimately spoke to the U.S. attorney: [He] promptly corrected me and indicated that the Magner issue would be part of the discussion. I said fine, follow the standard protocols. But my aim and my goal in that message and in the ensuing conversations was to get him to communicate that, so that we could bring the matter to closure. In early February, the Civil Division formalized the decision not to intervene in the Newell case with a written memo. Unsurprisingly, that memo was completely transparent and clearly indicates that the Magner appeal was a factor in the decision not to join the Newell matter, but that the decision is largely based on the flaws in the Newell case. As Mr. West noted: [Declining to intervene] was a view we had all arrived to having taken into consideration the numerous factors, including the Magner case, as really as reflected in our memo. I think the memo--the declination memo that I signed, really does encapsulate what our view was. Republicans claim Mr. Perez singlehandedly cost the United States millions of dollars. But the damage award received from a losing case is zero--zero. According to the Justice Department's leading expert on the False Claims Act, that is likely what the Newell matter was worth-- zero. So Republicans say we lost millions of dollars. How can you lose millions when the experts say their chances of succeeding at it were zero? When the general counsel of the Department of Housing and Urban Development was asked about HUD's interest in recovering funds from the City of St. Paul, she said: As a hypothetical matter, sure. Did we actually think that there was the capability to do that in this case? No. To summarize, Mr. Perez consulted with two ethics and professional responsibility experts. Those experts made clear it was appropriate to advance a global resolution of the two cases as long as the Civil Division retained authority over the Newell matter, which it did at all times. Senior career Civil Division attorneys believed the Newell case lacked merit, and the lack of merit to that case was the primary reason for the Civil Division's decision not to intervene. Based on these facts, I do not know what the controversy is. Mr. Perez acted appropriately and ethically to advance the interests of the United States. It is no surprise that experts in the legal community have made clear Mr. Perez acted appropriately. As Professor Stephen Gillers, who has taught legal ethics for more than 30 years at New York University School of Law, wrote, the Republican report issued last month suggesting that Mr. Perez acted improperly ``cites no professional conduct rule, no court decision, no bar ethics opinion, and no secondary authority that supports'' this argument. In fact, no authority supports it. So you can make all kinds of allegations, and the House majority report made allegations, but they have no professional conduct rule, no court decision, no bar ethics opinion, and no secondary authority that supports their allegation. No authority supports it. So the confirmation process has been thorough. Mr. Perez has been thoroughly vetted. He has been fully responsive, forthcoming, and cooperative, including during a thorough confirmation hearing in my committee, the Health, Education, Labor & Pensions Committee. Mr. Perez's nomination was officially received on March 19, nearly 5 months ago. In contrast, Ms. Elaine Chao was confirmed as Secretary of Labor the very same day her nomination was received in the Senate--I might add under a Democratically led committee. These allegations are simply that--allegations made of whole cloth. Quite frankly, Mr. Perez has acted ethically and appropriately at all times. Perhaps that is why some are opposed to him. He has been vigorous in enforcing our civil rights laws, vigorous in going after slum landlords and lending agencies that abuse poor people who are trying to get decent housing. Yes, he has been vigilant at that--very vigilant, as I said, getting some of the biggest settlements ever in the history of this division. Perhaps they are afraid Mr. Perez will be vigilant and strong in his tenure as the Secretary of Labor. We can only hope so. We can only hope he will continue in the tradition set down by the former Secretary Hilda Solis, who did an outstanding job as our Secretary of Labor. A former Member of the House of Representatives, Hilda Solis turned that department around from a department that had been moribund for 8 years. I can assure everyone that Mr. Perez will always act appropriately and ethically, but he will always act forcefully to defend the rights of people to make sure our laws are enforced--those laws that protect the health, the education, the labor, and the pensions of the American people. With that, I yield the floor, and I suggest the absence of a quorum.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that Carly Rush and Colby Steele, interns with my HELP Committee staff, be granted floor privileges for the remainder of the debate on the confirmation of Thomas Perez.

Mr. HARKIN

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

Mr. HARKIN. Mr. President, I have some comments and statements to make regarding filibuster reform and nominees. I ask unanimous consent that I be allowed to speak for up to 30 minutes.

Mr. HARKIN. Mr. President, I wish to take the floor to talk about these critical nominations the Senate is currently considering. In all of the talk about these nominations, about the politics of recess appointments and everything, one thing that has been missing is a real consideration of who these people are. Let's bring it down to the personal. Who are these people? What have they done? What can they do to serve our country? We seem to have forgotten, in all this chaff that is out there and all the arguments going on, what we are supposed to be doing to fulfill our constitutional responsibility to advise and consent to Presidential nominations. As I understand it, we are supposed to look at the qualifications of the candidates, determine if they are fit to serve, and beyond that, that is it. The answer with all of the nominees before us is an unqualified yes. They are qualified, they are fit to serve, and the President should be allowed to put together his team. That should be the end of our task. We should confirm them all today--or tomorrow, I guess, when they come up--and move on to the many other important issues facing this body. I am going to talk in a little bit about the whole filibuster issue itself, but first I would like to talk a little bit about one of the first of the nominees who is up, and that is the President's choice to be our Secretary of Labor, Tom Perez. Without question, Tom Perez has the knowledge and experience needed to guide the Department of Labor-- one of our key Cabinet posts. Through his professional experiences, especially his work as secretary of the Maryland Department of Labor, Licensing and Regulation--yes, he was basically the secretary of labor for the State of Maryland, and he developed a very strong policy expertise about the many issues that confront American workers and businesses. He spearheaded major initiatives on potentially controversial issues, such as unemployment insurance reform and worker misclassification, while finding common ground between workers and employers to build sensible, commonsense solutions. It won him the support of the business community and worker advocates alike. To quote from the endorsement letter of the Maryland Chamber of Commerce: Mr. Perez proved himself to be a pragmatic public official who was willing to bring differing voices together. The Maryland Chamber had the opportunity to work with Mr. Perez on an array of issues of importance to employers in Maryland, from unemployment and workforce development to the housing and foreclosure crisis. Despite differences of opinion, Mr. Perez was always willing to allow all parties to be heard and we found him to be fair and collaborative. I believe that our experiences with him here in Maryland bode well for the nation. That is from the Maryland Chamber of Commerce. Tom Perez has dedicated his professional life to making sure that every American has a fair opportunity to pursue the American dream. Most recently, as the Assistant Attorney General for Civil Rights at the Department of Justice, he has been a voice for the most vulnerable, and he has reinvigorated the enforcement of some of our most critical civil rights laws. He has helped more Americans achieve the dream of home ownership through his unprecedented efforts to prevent residential lending discrimination. He has stepped up the Department of Justice efforts to protect the employment rights of service members so that our men and women in uniform can return to their jobs and support their families after serving their country. As the Senate author of the Americans with Disabilities Act, I am particularly pleased with Mr. Perez's long history of leadership on disability rights issues. While at the Department of Justice, he helped ensure that people with disabilities have the choice to live in their own homes and communities rather than only in institutional settings and to receive the support and services to make this independent living possible. Like any leader whose career has involved passionate and visionary work for justice, Tom Perez's career has been one of making difficult decisions and management challenges. He has been the target of a lot of accusations and mudslinging and misperceptions. But we have looked--I have looked carefully into his background and record of service, and I can assure my colleagues that Tom Perez has the strongest possible record of professional integrity. Any allegations to the contrary are totally unfounded. Again, Mr. Perez appeared before our committee. He was willing to answer any and all questions. To those who were at the committee, those who submitted letters--he has answered more than 200 written questions. He made himself available to any Senator who wanted to meet with him. He has been most accommodating, and I can say that the administration has provided all the access people have wanted to his personal e-mails. In fact, this administration, I can say from my experience in the last 29 years, has gone further in providing access to even the personal materials of Tom Perez than any President has ever done before, any administration has ever done before. Again, he has been thoroughly vetted. He has the character, integrity, and expertise to lead this Cabinet, and the Senate should vote on it. When I say the Senate should vote on it, we should vote on it with a majority vote, but, no, Mr. Perez has been filibustered and held up to a 60-vote threshold. We know Mr. Perez has well over 50 votes--the majority--but because my friends on the Republican side are stonewalling this, he may not have 60 votes. But why should it take 60 votes, I ask? Why shouldn't it be a majority vote, up or down? The same is true for our nominees to the National Labor Relations Board. Again, these are three exceptionally well qualified candidates. Mark Pearce has been a board member since 2010 and Chairman since 2011. He was previously a union-side attorney in private practice. Before that he was a career attorney at the National Labor Relations Board. Richard Griffin, Jr., is former general counsel of the Operating Engineers Union and, again, a former career attorney at the NLRB. Sharon Block served as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor and before that was staff on our HELP Committee. She was the senior counsel for Chairman Kennedy when Senator Kennedy was chairman of our committee, and she is a 10- year veteran of the NLRB. Again, I have yet to hear one Senator question their qualifications. Indeed, even the ranking member on the HELP Committee conceded at the hearing that these candidates are exceptionally well qualified and that he admired their qualifications and their distinguished backgrounds. They have been thoroughly vetted. They met with any Senator who asked. They have each answered more than 100 written questions. They have come before our committee in a public hearing, which is not typical for all NLRB nominees. They produced every document requested and answered every question they have been asked. Again, if we concede that they are all exceptionally well qualified and well vetted, why can't we vote for them with an up-or-down majority vote? Some time ago my friend Senator Graham when speaking about the Senate's role and the nomination process said: Our job, as I see it, is not to say what we would do if we were President. Our job, as the Constitution lays out for us, is to advise and consent by a majority vote to make sure the President . . . is not sending over their brother-in-law or sister-in-law or unqualified people. So no one on this list is anyone's brother-in-law or sister-in-law, and everyone is exceptionally well qualified. Again, if we are doing our constitutional duty, we would confirm all of these nominees tomorrow and move on to our legislative work. Why aren't we doing that? Because my friends on the Republican side are hijacking these nominations and this nomination process to try to make changes to laws they know they could not change through regular order. Many times a single Senator or a handful of Senators might hold up a nominee not because the nominee is not qualified but because they want some changes made someplace else that they don't feel they can get through the regular order of business in the Congress. For example, my friends on the Republican side don't like the National Labor Relations Board. So what do they do? They can't repeal it, so they make it inoperable. They make it inoperable by not letting us confirm nominees. In fact, one of my Republican colleagues announced his intention to filibuster the NLRB nominees 6 days before their nominations were announced. In fact, he went on to say that an inoperable NLRB would be good for the country. If that is the way they feel, offer amendments to defund it, do away with it, and repeal the law. But to hold up qualified nominees from carrying out the law--the National Labor Relations Act is the law of the land. The National Labor Relations Board is constituted under that law to carry out its functions. So to hold up qualified nominees because they want to change the law, again, is to try to get something done that they couldn't otherwise do through the regular order. This level of obstructionism is unprecedented in the nomination process. Repealing laws by fiat is not and was never intended to be a part of the Senate's advise and consent function. A Senator's dislike for a particular law or a particular agency certainly was not intended to prevent qualified and dedicated people from answering the President's call to serve their country. Again, it is not only the nominees but the American people suffer from these unprecedented abuses of the process. The laws that these boards and agencies and departments enforce are important laws designed to protect people. When the system breaks down--or in this case, intentionally undermined--real people are hurt. Let's take the example of the National Labor Relations Board. They have to have a quorum of three members to act. If there are fewer than three members at any time, the Board cannot issue decisions and must essentially shut down. The Board currently has three members, but Chairman Pearce's term expires in August--next month. At that point the National Labor Relations Board would be unable to function unless we confirm additional members. Keeping the Board open is vital to employees, employers, and our economy. Without the Board workers cannot seek justice if they are discharged or discriminated against for, say, talking with colleagues to improve their working conditions or for joining or assisting a labor union or for organizing a labor union. The only avenue available to these employees to file a grievance and have their grievance heard and adjudicated is to file a charge with the National Labor Relations Board. Without it, they have no options at all. If the NLRB, the National Labor Relations Board, cannot function, workers effectively don't have no rights. Yet my Republican colleagues said an inoperable NLRB would be good for the country. Imagine leaving workers without any forum or recourse to have their grievances heard. I could also say the same is true for the Consumer Financial Protection Board. As we know it was created as part of the Dodd-Frank Act with a simple idea in mind: Consumers deserve to have a watchdog looking out for their best interests when using financial products and services from mortgages to credit cards, to student loans, to payday loans. Without the creation of the Consumer Financial Protection Bureau, consumers don't have that cop on the beat looking out for their well-being. Mr. Cordray, who has been chosen by the President to head this agency, has carried out his mission admirably. If Republicans have their way, he will never be confirmed. Not only will they lose his leadership but the ability to adequately oversee these financial services and financial products in order to protect the American consumer. By refusing to confirm Mr. Cordray--and if I am not mistaken, I believe his nomination has been pending for over 500 days. His nomination has been held up for 500-some days. By refusing to confirm him, the Republicans are using this nomination process to thwart the intent of the Dodd-Frank law, and that brings us to the crux of what is going on around here. It has been in the press so much lately. We are going to have an unprecedented caucus of the Democratic Senators and Republican Senators out here in the old Senate Chamber at 6 p.m. tonight to air these grievances. As we know, last Thursday the majority leader laid down a number of these nominees and filed cloture on them. We will bring them up tomorrow. If the Republicans continue to filibuster, the majority leader has made clear his intention to change the rules of the Senate by using 51 votes to provide that nominations for executive branch positions are not subject to the filibuster rule. So what we are talking about is the nullification of laws which are already on the books through the abuse of the Senate's power to advise and consent to nominations--nullification. Read your history books about nullification. It is one of the issues we fought the Civil War over: Could States nullify, on their own, Federal laws? What we are seeing are the Republicans saying we can nullify the essence of laws or what boards are supposed to do by abusing the advise and consent clause of the Constitution. It is appalling and something has to change. I first took to the floor on this issue in 1995. This is the Congressional Record, and it is dated January 4, 1995. It was an interesting time. The Democrats had lost control of the Senate and the Republicans were in charge. I--along with Senator Lieberman, Senator Pell, and Senator Robb, from the great State of Virginia--proposed a change in the rules that wouldn't end the filibuster but would keep the filibuster as it was kind of intended, a method whereby the minority could ensure that they could amend or offer amendments on legislation. The right of the minority should be the ability to offer--not to have them adopted--thoroughly debate and vote on amendments. Secondly, to make sure the filibuster could be used to slow things down but not to be used to stop something. That is why I proposed on January 4, 1995, I said: It is getting worse. I also said: I believe in the long run it will harm the Senate and our Nation if this pattern continues. I went on to talk about the rising tide of the filibusters. I said: Clearly, this is a process that is out of control. We need to change the rules. We need to change the rules, however, without harming the longstanding Senate tradition of extended debate and deliberation and slowing things down. When I laid down the proposed rule, I went on to discuss about how dysfunctional this place was becoming. If you thought it was bad in 1995, you should see what it is like now. Never in my wildest dreams did I think in 1995 that 18 years later the Senate would come to this point where we simply can't do anything unless we have 60 votes. We now have a system whereby 41 Senators decide what we do. Essentially, that is what they do, and through the use of the filibuster, a handful of Senators can truly thwart the will of the Senate. There has been a lot said about different nominees and what is going on here. There has been this accusation and that accusation. We have to cut through all that fog and all that haze. I referred to it in 1995 as sort of like the fog of war. It is sort of like the fog of war; we have to cut through it. There is only one question we and the American public need to ask ourselves: Should a person selected by the President, any President, Democratic or Republican President, to be a part of his or her team-- after being thoroughly vetted, after having a thorough committee hearing, and after making sure there is nothing terribly wrong with this person and they meet the qualifications--have an up-or-down vote by the Senate with a majority vote or is it going to require 60 votes? Again, the Constitution of the United States very clearly points out that there are only five times when the Senate needs a supermajority to act, such as impeaching the President, expelling a Member, adopting a treaty, joining a treaty, approving a treaty, and things such as that. For all other things, the Constitution envisions a simple majority vote. That is the real question. There is no other real question before us. Before I yield the floor, I just wish to address an issue that has come up regarding the National Labor Relations Board nominees. I wish to set the Record straight. I have taken the time to put this in the Record. There have been accusations made on the Senate floor--I shouldn't say accusations. There have been comments made that two of these Board members are serving illegally and were illegally put on the board by President Obama. I am talking about Sharon Block and Richard Griffin. Let's look at a little history. They were appointed by the President in January of 2012 as a recess appointment because the Republicans had already announced they would not let us have an up or down vote on them. Since we needed a National Labor Relations Board to function, the President gave these two people a recess appointment in January of 2012. They have been serving since that time. They were taken to court to decide if the President had the authority to appoint them as recess appointees. The DC Circuit Court issued an opinion. The reasoning they used was contrary to any other court reasoning in the past about recess appointments. The DC Circuit said, No, the President could not make those appointments and, furthermore, the President can only make a recess appointment during the intervening times from one Congress to another for vacancies that arise between sessions. No other court has ever held that. There was another court that agreed the President couldn't make these recess appointments, but it didn't go quite that far; it just said that the appointment had to be made between sessions. Other courts, including the Second, Ninth, and Eleventh Circuit Courts, have all decided these things differently in the past. What we have here is a decision by one court--the DC Circuit--taking a position that has never been taken before by any court. We have another court--the Third Circuit--that also narrowly defined the President's power. Then we have other circuit courts that have defined the President's power more broadly. So what happens now? This case goes to the Supreme Court and the Supreme Court will decide this during the 2013-2014 term. Sharon Block and Richard Griffin are on the NLRB. They took an oath of office to carry out their responsibilities. Some of my Republican friends are saying they should resign; they should get off the board because they are serving illegally. They are not serving illegally until the Supreme Court has made a final decision. I have said before, the contention of some of my friends on the Republican side is like Alice in Wonderland: First the verdict, and then we have the trial. I don't know what the Supreme Court will decide. We don't know. We have had precedents in the past. There is a longstanding NLRB precedent when the agency faces a split in circuit court opinions. When the DC Circuit Court ruled in Laurel Baye v. NLRB that the NLRB needed three members to have a lawful quorum to act--again, this was contrary to the decision of other circuits--the two-member board, consisting of Republican Peter Schaumber and Democrat Wilma Liebman, continued to issue decisions until the legal issue was finally resolved in the Supreme Court. The Supreme Court said, No, they need more than two. They have to have at least three people to make decisions. The two-member board, during that interim time, issued decisions in hundreds of cases after the DC Circuit's adverse ruling, yet not one Republican Senator called on either member to resign. So what happened? After the Supreme Court issued its decision and the board now had more than three members, they went back and looked at these decisions, and if there were still open contentions they reviewed them and they issued another decision. Some of the decisions were accepted by both sides and people moved on. Those that weren't were redecided by the board, including the two people who had served on that board during that interim period of time. Again, we have a recent precedent--and this was just within the last 5 years, if I am not mistaken. So we have a recent precedent that demonstrates that both Block and Griffin are acting appropriately by remaining in place and that the NLRB is acting appropriately by continuing to issue decisions pending the resolution of this issue by the Supreme Court. They cannot and they should not resign because they took an oath of office to fulfill their duties, and they must fulfill that oath. After President Obama made these appointments, each new board member took an oath of office promising to fulfill their duties as a member of the NLRB. I wanted to clear that up. They are not illegal. We await the Supreme Court's decision. I have no idea how they are going to decide because there has been a split of the circuits. As I have shown, this issue has come up before where we had a case split in circuits. Two board members continued to issue decisions. No one here asked them to resign, and this was in the last 5 years. No one asked them to resign. But now, for some reason, my friends on the Republican side want to deny the President his choice of people to serve on the NLRB. Two of those people, Ms. Block and Mr. Griffin--let's say the Supreme Court says the President couldn't appoint people during that recess. Well, OK. We are not talking about that now; we are talking about an appointment that is going to take place right now, and he should be allowed to have who he wants, as long as they are thoroughly vetted and qualified. As I said, no one has questioned their qualifications. The President should have the right to have his NLRB board put in place now, and the question of whether the decisions made in the last year and 5 or 6 months--those decisions, just as the ones before in the case of the two member Board--went back and were revisited and the court issued its decisions. The same thing can happen here. So we shouldn't let anyone tell us these nominees are illegal. That is absolutely not true. People may think it is true, but it is not true. I keep hearing: Well, now there are overtures from the Republican side to make some deals--to make a deal on not having the vote tomorrow on doing away with the filibuster rule on nominations. Oh, I have heard all kinds of things floating around: This deal here, that deal there, and we have a little deal here. Since I took the floor in 1995 as a Member of the minority, I might add, to propose a change in the filibuster rules, this issue has come up several times. It has come up several times since 1995. Every time there is always a deal. There is always some little deal made so we don't fix what is wrong with the Senate. We sort of paper it over and move on. I hope that doesn't happen again. Every time a deal was made and it was papered over, things got worse--every single time they got worse. They might have been OK for a little bit, but then we go right back to our old ways again. The old ways won't work any longer around here. They just won't work. I hope the only deal that is struck is the Republicans agree--we all agree--that any President should have his or her right to put their team in place by a majority vote of the advise and consent of the Senate. They first should be thoroughly vetted with committee hearings and answering questions, but they are entitled to an up-or-down vote, with a majority vote in the Senate. That is the only deal that will get us out of this trap in which we find ourselves. I think it is the only thing that will reassure the American people that, once again, the Senate is going to function; it is going to do its job; it is not going to be thwarted by a handful of people--one or two or three or four people--and that we can actually move this country forward and let this President and the next President, who may be a Republican, have his team. I said that in 1995 when I was in the minority, I have said it in the majority, I have said it in the minority, and I say it once again as a Member of the majority. I hope tomorrow we finally put an end to this nonsense of the filibuster on nominations, at a bare minimum. I would like to see the filibuster changed even more than that, but at a minimum get rid of the filibuster on nominations to the executive branch. Mr. President, I yield the floor.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on July 15, 2013, at 3 p.m. to conduct a hearing entitled ``Strategic Sourcing: Leveraging the Government's Buying Powers to Save Billions.''

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that Nate Converse, Max Ernst, and Trent Blomberg of my staff be granted floor privileges for the duration of today's session.

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 Tuesday, July 16, 2013, at 2:30 p.m. in room 430 of the Dirksen Senate Office Building to conduct a hearing entitled ``Pooled Retirement Plans: Closing the Retirement Plan Coverage Gap for Small Businesses.'' For further information regarding this meeting, please contact Sarah Cupp of the committee staff on (202) 224-5441.

Mr. HARKIN

Mr. HARKIN. Will the Senator yield for a question.

Mr. HARKIN. I just want to ask--I am sorry, I couldn't see the chart from the other side, so I came here. On the undergraduate student, 3.66, 64 percent, for how many years does that hold, that 3.66 percent? For how many years?

Mr. HARKIN. Just 1 year.

Mr. HARKIN. And what does the CBO project the rates will do in the next 10 years?

Mr. HARKIN. I have a statement to make but not a question.

Mr. HARKIN. If we are going to get into a colloquy, that is fine.

Mr. HARKIN. Will the Senator yield?

Mr. HARKIN. My friend from West Virginia made a statement a few minutes ago that resonated with me. He said we are trying to get the market rates because we always had the rates. When I first went to college in 1958, 1959, 1960, and 1961, I borrowed money under this program. It came into being in 1958, so 1959 was the first year I borrowed money. It was called the National Defense Education Act or the Eisenhower bill. I went back and looked to see what the 10-year Treasury note was at that time for those 3 years that I borrowed. The 10-year Treasury note at that time ranged between 4.2 percent and about 4.8 percent. I borrowed money at 2 percent. I say to my friend, that is not a market rate. Not only did I borrow the money, but all the time I was in college I paid no interest charges. I spent 5 years in the military with no interest charges. I then went to law school--3 years in law school--with no interest charges. Then I had a 1-year grace period after I graduated from law school with no interest charges. For all those years the interest rate clock never started ticking.

Mr. HARKIN. Everybody.

Mr. HARKIN. That is right. The reason I raise that is, Why were we so special? Why was my generation so special that this country was willing to subsidize my education, but for these young people here we are saying: No, no, you have to pay interest rates?

Mr. HARKIN. We made a commitment at that time to invest in a generation of young Americans so they wouldn't have a huge amount of debt hanging over their heads.

Mr. HARKIN. I object.

Mr. HARKIN. I know Senator Stabenow has an important meeting to get to, and I will yield to her in just second. I just want to respond to my friend from North Carolina as to why I objected since I don't believe in all of these reservations for objections. Either you object or you don't, and there is a time to explain that later on. I wanted to explain why I objected. If we vote for cloture at noon on this underlying bill, then what the Senator from North Carolina wants, they can add as an amendment. They can offer that as an amendment to the bill. The bill will be open to any amendments anybody has. So the reason I object is because we have a bill, and it is under regular order. We have cloture and the bill is open for amendments. So the Senator from North Carolina or Tennessee or West Virginia or anybody else can offer any amendments they want, and that is the way the regular order ought to proceed. With that, I yield the floor.

Mr. HARKIN. I know we are still on our time; is that correct?

Mr. HARKIN. I understand Senator Hoeven wanted to take 5 minutes.

Mr. HARKIN. That would be fine.