Tom Harkin

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, February 14, 2012, at 2:30 p.m. in room SD-430 to conduct a hearing entitled ``Pain in America: Exploring Challenges to Relief.'' For further information regarding this meeting, please contact the committee on (202) 224-7675. Committee on Health, Education, Labor, and Pensions

Mr. HARKIN. Mr. President, I wish to announce that the Subcommittee on Employment and Workplace Safety of the Committee on Health, Education, Labor, and Pensions will meet in open session on Thursday, February 16, 2012, at 10:00 a.m. in room SD-430 to conduct a hearing entitled ``Addressing Workforce Needs at the Regional Level: Innovative Public and Private Partnerships.'' For further information regarding this meeting, please contact the subcommittee on (202) 228-1455. Committee on Indian Affairs

Mr. HARKIN

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HARKIN. Mr. President, I rise today to express my concern about provisions of this bill that amend an unrelated labor law statute--the Railway Labor Act. As the chairman of the Committee on Health, Education, Labor, and Pensions, which has jurisdiction over this law and the agency that enforces it, the National Mediation Board, I am troubled by the inclusion of this language and the implication that it creates; namely, that this independent Federal agency and the hard- working Americans it protects are being punished for recent regulatory changes that protect workers' rights. The National Mediation Board--or NMB as it is known--established in 1934, is an independent agency that administers labor relations in the air and rail industries. In 2009 this small, 51-person agency went through a careful process to change the voting rules governing the elections that it administers. Under the old antiquated election system, all nonvoters were automatically and arbitrarily treated as a ``no'' vote, or a vote against the union, regardless of whether they actually opposed forming a union. These rules were contrary to the election rules used in National Labor Relations Board-supervised elections and different from the rules governing elections held throughout the entire United States, from school boards to U.S. Senators. Think about it--if you don't vote, you are counted as a ``no'' vote. What kind of sense does that make? It made no sense. Just as it would be unfair to arbitrarily assign an individual American a position, let's say, in the Presidential race because he or she chose not to vote, it was unjust to capriciously impose a position on rail and aviation workers who, for one reason or another, didn't vote in a representation election. That is why the National Mediation Board adopted the commonsense rule, the same rule that applies to industries all over America that are governed by the National Labor Relations Board. The rule was that in the future elections, a voter's decision not to vote would have no impact on the election's outcome. Only those voters who actually participate will determine the outcome of the election. A majority of those who vote determines who wins. This basic system, as I said, of conducting elections works for school boards and for Congress. It works for all the businesses in America that are governed by the National Labor Relations Act, and it will work and has worked for rail and aviation workers. The only entity this new system apparently doesn't work for is the management of a few powerful airlines. These powerful companies don't want workers to have representation. They don't want to engage in collective bargaining with their workers. I guess they are deeply concerned about the remote chance that at some point in the future they just might have to put a few additional dollars into middle-class workers' pockets, so they waged an unprecedented attack campaign to kill this rule, the rule that says: If you don't vote, your vote is not counted as yes or no. The only votes that count are those that vote yes and those that vote no. In the past, if you didn't vote, it was counted automatically as a ``no'' vote. Finally, people said: This doesn't make sense. No other business in America has any kind of rule like that governed by the National Labor Relations Board. These few powerful airlines waged an unprecedented attack campaign to kill the rule. First they found some friends in Congress and tried challenging the rule under the Congressional Review Act, a law that allows Congress to overturn a rule through a resolution of disapproval. They lost that fight on the Senate floor. Next, they went to court to challenge the legality of the rulemaking. They lost that fight in the district court, and then they appealed to the court of appeals and they lost there too. So then they waged a last-ditch effort to kill the rule on this FAA reauthorization bill, which has nothing to do with it. Again, it was not in the Senate bill. The House put it on a totally unrelated provision dealing with the National Mediation Board that isn't even a part of the FAA and which isn't in the jurisdiction of the Senate Commerce committee. The FAA reauthorization has historically been a bipartisan bill that is essential to the operation of our aviation system. As a pilot myself--I have been all my life--I can see why this bill was needed, believe me. The current bill not only extends a wide variety of provisions impacting aviation, it helps to create tens of thousands of jobs and to bring our aviation system into the 21st century. This important legislation has absolutely nothing to do with the National Mediation Board, whose sole job is to oversee labor relations. But last year House Republicans tried to turn this FAA reauthorization bill into a vehicle to attack workers' rights. They added a provision to their bill repealing the National Mediation Board's election rule--the rule which said if a person does not vote, it is not counted. It is not counted as a ``no'' vote or ``yes'' vote; it is just not counted--a commonsense rule. Then, when the House and Senate bills were in conference last year, they refused to pass a clean extension of the FAA laws as had been done on more than 20 occasions prior. Since they didn't do that, they stopped the conference negotiations. Instead, the House forced a partial shutdown of the FAA. That shutdown last summer left 4,000 FAA workers furloughed. It put many thousands more people out of work in airport construction. It cut off FAA reimbursement payments to small businesses across the country. It cost the government about $25 million in tax revenues every single day just because the House was attacking workers' rights and they wanted to add this onerous provision to the FAA bill. While frustrating, it has long been the norm here to keep agencies operating with short-term extensions while bills whose terms have not been worked out are negotiated. The House action was a rare break from that norm, and it caused real damage to thousands of real people. Fortunately, there was a substantial public backlash against the House Republicans, and they had to back down. They let a short-term FAA extension pass, then they backed off on their demand to kill the rule. But the powerful corporations behind this effort still couldn't let the issue go. Despite the fact that the new rule had been in place for more than a year and has had absolutely no negative impact on any carrier-- the union success rate in elections has remained roughly the same before and after the rule's implementation--these corporations were still bound and determined to attack the National Mediation Board and to attack America's rail and airline workers to punish them for having the audacity to stand up for what is fair and to have the audacity to stand up and say a vote that is not taken shouldn't be counted as a ``no'' vote or a ``yes'' vote; it shouldn't be counted at all, which I think most Americans would think makes sense. So these corporations got their friends in the House Republican leadership to demand the addition of burdensome new changes to the Railway Labor Act in this unrelated FAA bill. The dramatic changes they initially demanded to this statute were absurd and would have been irresponsible to slip into a nonamendable conference report without any consideration by the committee of jurisdiction which happens to be the jurisdiction of the committee I chair in the Senate. Fortunately, Senator Rockefeller, the chairman of the Commerce Committee, and Senator Reid, through months of negotiations, were able to stave off the worst of the House Republican proposals and ultimately settle on a package of less detrimental changes. Under this new language, the agency retains discretion to determine when a union should be properly certified as a bargaining representative, and we have no intention of changing that process. I also think we have left a lot of room for the agency to make rules that govern special situations such as mergers. But to be clear, I don't think any of us on this side of the aisle wanted to make these changes at all. We were forced to do this by a few powerful people who were willing to hold many thousands of American jobs hostage and hold hostage improvements to our airway system just to get this. Some people might call this process a compromise, but I call it an abuse of our legislative process, and we shouldn't let it happen. To be clear, as I have indicated, there is progress in this bill for the people of my State and the people of this great Nation. It will create jobs. It will move our country's aviation system into the 21st century. It shifts our air traffic control system to a GPS system where planes can fly far more efficiently, saving fuel and time. It provides a compromise that continues the Essential Air Service Program. So, again, I thank Chairman Rockefeller for his diligence and his hard work for over 4 years trying to lead the House and others into moving our air transportation system, both for general aviation and for air transport and for the airlines, to be more efficient and to use less fuel so it is more benign to our environment. Believe me, there is a lot in here that is going to help general aviation also. So I thank Senator Rockefeller for his diligence and his hard work. So my ``no'' vote today on this bill is not to suggest that there aren't many good things in this bill. Instead, my vote is to stand up against the notion that a Federal agency and the American workers it is charged to protect should be punished for doing what is right and what is fair, what is in their jurisdiction, and to stand up against a process that allows the few and the powerful to hijack this body and change the rules of the game in their favor. The American people deserve better than that. Railway Labor Act

Mr. HARKIN. Mr. President, I would like to ask a few questions of my friend the majority Leader and my friend Senator Rockefeller, Chairman of the Senate Commerce, Science, Transportation about the changes to the Railway Labor Act in the this bill. Because my committee has jurisdiction over this important act, I want to make sure that I fully understand the scope and impact of these changes.

Mr. HARKIN. My understanding is that there has been longstanding deference to the National Mediation Board regarding the findings it makes in the representation context. As the Supreme Court stated in Switchmen's Union v. NMB, after a NMB's decision on whether a showing of interest has been made ``the dispute [is] to reach its last terminal point when the administrative finding [i]s made. There [i]s to be no dragging out the controversy into other tribunals of law.'' Would these changes alter that longstanding deference in any way?

Mr. HARKIN. I would ask my friend, Senator Rockefeller, if this was his understanding as well?

Mr. HARKIN. I thank my colleagues and am reassured by their response. I can think of a number of dangers that would arise if the sufficiency of a showing of interest were litigated in court. The sad reality is that employees are regularly retaliated against for supporting unionization--in ways that are legal and illegal. It would be very dangerous if employers could gain access to union authorization cards through litigation discovery. It is reassuring to hear that the sponsor of this bill does not intend that result by codifying the showing of interest.

Mr. HARKIN. I thank the majority leader for that helpful clarification. I would like to raise two additional questions if I may, both related to whether usual rules of statutory interpretation are intended to apply here. First, am I correct that the showing of interest requirement set forth in this legislation should only apply prospectively and should not apply to any application for representation pending at the time of the effective date of the legislation?

Mr. HARKIN. I thank the Senator. And second, in the amendments, Congress directed the Government Accountability Office to review certain NMB activities periodically, and in conducting these reviews, to consider whether the agency's actions are consistent with Congressional intent. I would presume that the relevant question for the GAO to consider is whether the agency's actions are consistent with the intent of the Congress that passed the provisions of the Act in question, the joint labor-management agreements which led to its adoption, and the subsequent judicial interpretation thereof? Mr. ROCKEFELLER: That is correct, yes.

Mr. HARKIN. I thank my colleagues for joining me in this conversation.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that Nora Goebelbecker, a member 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, February 7, 2012, at 2:30 p.m. in SDG-50 to conduct a hearing entitled ``The Promise of Accessible Technology: Challenges and Opportunities.'' For further information regarding this meeting, please contact the committee on (202) 228-3453. Committee on Energy and Natural Resources

Mr. HARKIN

Mr. HARKIN. Mr. President, as the chairman of the Health, Education, Labor, and Pensions Committee, I wish to respond to some of the shrill rhetoric and outright misinformation regarding President Obama's recent recess appointments to the National Labor Relations Board and to the Consumer Financial Protection Bureau. When all the political grandstanding is done, at the heart of this dispute is the ability of these two agencies to carry out their congressionally mandated functions. One is charged with defending the rights of consumers and the other defending the rights of workers. Republican partisan obstruction and filibusters prevented confirmation of nominees to lead both these agencies, which would have prevented their legal authority to act. With the rights of millions of American workers and consumers on the line, the President did what was his duty to preserve the functioning of two critically important agencies--agencies that are essential cornerstones of our efforts to rebuild and restore our struggling middle class. At a time when our Nation is engaged in serious soul-searching about the demise of the middle class, the missions of the Consumer Bureau and the Labor Board have become particularly essential. These agencies are tasked with the vital responsibility of standing for consumers and workers against Wall Street and powerful corporations. Indeed, the true significance of the debate over the President's recess appointments is not about legislative or secure power or the meaning of a pro forma session, but the true significance is about whether we will let the powerful and well connected use the political process to rig the system or if, instead, we will enact and enforce laws that will give workers and consumers a fighting chance at a decent middle-class life. As a centerpiece of the Dodd-Frank bill to rein in the recklessness on Wall Street, the idea behind the Consumer Bureau is simple. We need a cop on the beat, looking out for the best interests of consumers who use financial products, as we have regulators looking out for the financial health of banks, as we have a Food and Drug Administration, the FDA, looking out for the safety of food and drugs for consumers or the Consumer Product Safety Commission that looks out for and protects our kids from harmful toys. A strong Consumer Financial Protection Bureau will ensure that consumers are not lured into debt through hidden fees. It will simplify disclosures and reduce paperwork so consumers are not faced with mountains of paperwork they cannot understand. It would oversee providers of consumer credit such as payday lenders--which for years have acted similar to banks but without facing any kind of bank regulation. Additionally, as student debt surpasses credit card debt as the largest source of consumer debt in America, the Bureau can play a critical role in helping families better understand the increasing challenges of financing a college education as well as bringing some sanity to the private student loan marketplace. Despite these laudable goals, Republicans refused to confirm Richard Cordray, the President's nominee to lead the agency, unless the President would agree to water down the law and weaken consumer protections. Forty-four Republican Senators served notice they would not confirm anyone to the position of Director unless structural changes were made to the Bureau that would effectively gut its ability to stand for consumers. When the President refused, they filibustered and prevented an up-or-down vote on this nomination, leaving the consumer bureau unable to fully interpret and enforce the law. As a consequence, Americans across the country were left in limbo, with limited ability to stand up to big banks and financial scam artists. Leaving the Bureau so powerless was unacceptable, so the President had no choice but to use his constitutional authority to ensure that this critical agency can continue to perform its legislatively mandated mission. The ramifications of Republican obstruction were even more dire at the National Labor Relations Board, where the impending loss of a quorum of members meant the Board would become totally inoperable if the President did not step in to fill the vacancies. Similar to the consumer bureau, the NLRB, as it is known, is a government agency tasked with standing up for working families. In its very text, the very text of the law that created the Board, it established that the policy of the United States is to encourage the process of collective bargaining. Senator Robert Wagner of New York, the act's author in 1935, explained that collective bargaining would increase the purchasing power of American workers and therefore aid our national recovery from the Great Depression. This law was one of the cornerstones of a new American economic policy that created the largest middle class in history, gave rise to the economic boom that transformed America and the world, and brought economic security and a better life to generations of Americans. Unfortunately, not everyone agrees with this mission. Some very powerful interests think that a few at the very top should have a monopoly power in our economy; that they should be able to set all the rules. These interests have lined up allies in Congress to wage a relentless crusade against the National Labor Relations Board. In all my years in public office, I have never seen anything like it. Last year, Republicans in the House held at least eight hearings, specifically addressing the NLRB. They passed two bills to amend the National Labor Relations Act to strip workers of their rights. Republican elected officials have tried to defund the agency. They have threatened the professional credentials and livelihoods of nonpartisan career employees and even called on a Republican board member to resign, in order to incapacitate the agency. On the campaign trail, Republican Presidential candidates have raged against the National Labor Relations Board and its employees. What are the great crimes these dedicated public servants at the NLRB are supposed to have committed? First, they started a new initiative to make sure workers are aware of their rights under law. In April of this year, employers will have to post a notice about National Labor Relations Act rights on the office bulletin board, next to other longstanding notices about the minimum wage, workplace safety, and other basic worker protections. This hardly seems to be an unreasonable burden. Second, the NLRB prosecuted a case against a company that allegedly retaliated against its employees for going on strike. I spoke at length about this case last year, on numerous occasions, on the floor of the Senate because there was so much misinformation about it. While the case was brought against a powerful company and became very controversial as a result, prosecuting retaliation cases is unquestionably a necessary and important part of the NLRB's responsibility. After all the fire and brimstone and all the threats from Republicans against this agency and the Governor of a certain State, as has happened in the past, this dispute was resolved by the company and the union. It has happened so many times in the past without us having to do a thing about it. Third, the National Labor Relations Board enacted a rule to standardize timelines for national elections. Under the act, after workers petition for an election, the NLRB holds a hearing to decide who should be in the bargaining unit and who should not be. In recent years, many employers have started flooding that hearing with frivolous litigation to stall the elections for months or even years, while arguing or appealing over every minor detail their lawyers can imagine. The NLRB decided to fix this problem and make sure workers get a vote in a reasonable period of time. The Board said workers should vote and then, if necessary, the ballots would be sequestered while the litigation drags on over certain peripheral issues. The new rules do not encourage union organization and they do not discourage it; they just give workers the ability to say yes or no in a reasonable period of time. Workers should not have to wait until innumerable lawsuits, one after the other, are disposed of before they even get a chance to vote. In response to these eminently reasonable and fair proposals, Republicans have attempted to shut the Board down by blocking all nominations. Senator Graham of South Carolina vowed publicly to block all nominees to the labor board, even if it meant the agency would cease to function. In his opinion, Senator Graham said, ``The NLRB as inoperable could be considered progress.'' To the thousands of American workers every year who rely on the NLRB to enforce the law and defend their rights, that must sound pretty cold-blooded, a direct attack on middle-class Americans. In practice, disabling the NLRB would mean American workers would have nowhere to turn if their rights are violated. Thousands of American workers are fired every year for trying to organize a union in their workplace--their legal right, by the way. With the labor board out of commission, these workers might never get their jobs back. If an employer or a union refused to adhere to a contract, there would be no NLRB to resolve the dispute. The labor board also ensures that unions do not step outside the law in their interactions with workers or employers. Those cases would be stuck in limbo too. Perhaps that is why a senior counsel to the National Federation of Independent Business told the Congressional Quarterly that ``to have the Board totally shut down would be a travesty.'' The President averted this travesty by appropriately exercising his recess appointment authority. Indeed, the President showed restraint by only appointing nominees to agencies that would lose their ability to function due to Republican obstruction. Acting to ensure the continued smooth functioning of government under these circumstances is a President's--whether it is President Obama or any other President-- constitutional responsibility. As constitutional scholar Laurence Tribe has explained, the Constitution considered the possibility that congressional squabbles would lead to paralysis and determined: The Constitution that has guided our Republic for centuries is not blind to the threat of Congress's extending its internal squabbles into a general paralysis of the entire body politic, rendering vital regulatory agencies headless and therefore impotent. Preserving the authority the President needs to carry out his basic duties, rather than deferring to partisan games and gimmicks, is our Constitution's clear command. Again, I say, if my colleagues do not like the National Labor Relations Act or Dodd-Frank, they can introduce a bill and try to get support to change the law. Of course, Republicans know such a bill would fail miserably. Instead, they are trying to short-circuit the process laid out by the Constitution to pass legislation. Under their theory, under the Republicans' theory, just 41 Senators could effectively repeal an existing law by simply denying an up-or-down vote on the President's nominees. Think about that. We pass a law by majority vote. It might even get through; of course, overriding a filibuster with 60 votes. The President signed it into law. A couple years later, the minority says we want to change it. We do not have the votes to change it, but we can block a nominee, nominees to the agency, and effectively shut down the agency with only 41 Senators. That is what is going on here. That is what is going on. President Obama took a bold but necessary step. Stepping in to protect ordinary Americans from the consequences of congressional dysfunction is hardly an intrusion on Congress's authority. It is the essence of leadership. I might point out I think facts will show that the last President before President Obama, President Bush, exercised his authority to appoint recess appointees 171 times. I think President Obama is right now around 20 or 21, something like that. Since President Obama was elected, Republicans have openly stated their No. 1 goal is not to govern or legislate; their No. 1 goal is to prevent the reelection of President Obama. Republicans in Congress may have the luxury of playing these political games but any President does not. Americans are counting on this President to do what is right for the middle class and that is unquestionably what he did by making these recess appointments to these two vital consumer protection agencies, the Consumer Protection Agency and the National Labor Relations Board. I yield the floor.

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, February 2, 2012 at 10 a.m. in SD-430 to conduct a hearing entitled ``Innovations in College Affordability.'' For further information regarding this meeting, please contact the committee on (202) 224-5501.

Mr. HARKIN

Mr. HARKIN. Mr. President, I would like to take a moment to recognize two individuals for their extraordinary service to the Everybody Wins! Program in Iowa. As many of my colleagues know, Everybody Wins! is a literacy and mentoring program for elementary school students. The program gives adults the opportunity to spend one lunch hour a week reading with a child in a public school. Fourteen years ago, Senator Jim Jeffords recruited me to join him as a volunteer for the Everybody Wins! Program in Washington, D.C. Since then, I have been an Everybody Wins! volunteer at Brent Elementary School in Washington D.C. I have seen the tremendous impact this program has both on the adult volunteers and their young student partners. I was very happy when Everybody Wins! was launched in my home State of Iowa in 2002. Two people I want to recognize today joined Everybody Wins! as volunteer readers and founding board members in 2003. Both of them retired in the last year after contributing to the solid foundation on which the Iowa program rests today. Mary Ann Nielsen joined the board of Everybody Wins! Iowa in the spring of 2003. She continued her service, including as president of the board, until May of 2011. Her work on the board included serving on three executive director search committees, as well as on the personnel and executive committees. Amy Elbert also joined the board in the spring of 2003, and continued her service until May of 2011. She devoted substantial time and energy to fundraising, two executive director search committees, as secretary of the board, and as chair of the outreach committee. Amy also has enjoyed reading relationships through the program for the past 4 years. For their commitment to our youth, to literacy, and their long-time contributions to Everybody Wins! Iowa, I extend my sincere thanks to Mary Ann and Amy and wish them all the best in their future endeavors.

Mr. HARKIN

Mr. HARKIN. Mr. President, throughout my career in public service I have been committed to ensuring that children in this country receive a quality education. I believe that each child should be educated in a supportive, caring, stimulating environment in which they are treated as an individual and provided with the tools they need to succeed. I also believe no child should be subjected to abusive disciplinary strategies or violent behavioral interventions while in school and no child should be secluded or unnecessarily restrained. I have fought to ensure that all children be treated fairly in schools in this country, and as a result I am pleased to introduce today the Keeping All Students Safe Act. This important legislation will protect school children against ineffective harmful and life-threatening seclusion and restraint practices. In 2009 the Government Accountability Office conducted a study on seclusion and restraint in schools. This study revealed that although the Children's Health Act of 2000 amended Title V of the Public Health Service Act and regulated the use of seclusion and restraint on residents and children in hospital facilities that receive Federal funds, there was no Federal law restricting the use of seclusion and restraint in schools. In a hearing on May 19, 2009 parents of children who were injured or killed as a result of the use of seclusion and restraint in schools testified before the House Committee on Education and Labor. This testimony from parents highlighted the very real need for this legislation. The Keeping All Students Safe Act addresses many of the concerns raised at that hearing and by the G.A.O. study. The act specifically prohibits seclusion, the use of locked or barred rooms where children are left unattended, without supervision. The act also prohibits mechanical and chemical restraints, physical restraints that are life-threatening, including those that restrict breathing, and aversive behavioral interventions that compromise a student's health and safety. The G.A.O. study also revealed that restraint and seclusion-related fatalities and injuries most often involve children with disabilities. This vulnerable population must especially be protected from this type of abuse, and this legislation seeks to do just that. The Keeping All Students Safe Act prohibits the use of all types of restraint and seclusion in all schools receiving Federal financial assistance, and prevents the use of this type of intervention from being included in any child's individualized education plan. This prohibition is included in the act because we know that planning for the use of restraint or seclusion has been shown to actually increase their use. Although the act does allow for the use of restraint in emergency situations to prevent serious bodily injury to the student, other students in the classroom, or staff, it also requires staff to be trained and certified by a State-approved crisis intervention training program as to how to approach these types of emergency situations. This will help to ensure that in the rare instances where restraint is necessary to prevent serious bodily injury, all techniques will be administered appropriately and unnecessary injury can be avoided. Another issue uncovered by the G.A.O. study was that no web site, Federal agency, or other entity currently collects comprehensive data related to the use of restraint and seclusion in our Nation's schools. This Act will remedy this situation, as it requires each State educational agency to prepare and submit a report documenting, among other information, any instances in which physical restraint was imposed upon a student. This will allow us to track the use of restraint and to determine if our efforts to decrease it are being successful. Support for this Act comes from many sectors of the education community. Organizations such as Easter Seals, United Cerebral Palsy, The Arc of the United States, the National Disabilities Rights Network and the Council of Parent and Attorney Advocates all support this legislation. In addition, in the House, our colleague, Representative George Miller, introduced in April a companion bill with bi-partisan support. This act is an important step towards protecting all children within our Nation's schools from the use of restraint and seclusion. No child should be subjected to physical restraint or seclusion as a disciplinary technique or behavior intervention strategy. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HARKIN

Mr. HARKIN. Mr. President, throughout my career in public service I have been committed to ensuring that children in this country receive a quality education. I believe that each child should be educated in a supportive, caring, stimulating environment in which they are treated as an individual and provided with the tools they need to succeed. I also believe no child should be subjected to abusive disciplinary strategies or violent behavioral interventions while in school and no child should be secluded or unnecessarily restrained. I have fought to ensure that all children be treated fairly in schools in this country, and as a result I am pleased to introduce today the Keeping All Students Safe Act. This important legislation will protect school children against ineffective harmful and life-threatening seclusion and restraint practices. In 2009 the Government Accountability Office conducted a study on seclusion and restraint in schools. This study revealed that although the Children's Health Act of 2000 amended Title V of the Public Health Service Act and regulated the use of seclusion and restraint on residents and children in hospital facilities that receive Federal funds, there was no Federal law restricting the use of seclusion and restraint in schools. In a hearing on May 19, 2009 parents of children who were injured or killed as a result of the use of seclusion and restraint in schools testified before the House Committee on Education and Labor. This testimony from parents highlighted the very real need for this legislation. The Keeping All Students Safe Act addresses many of the concerns raised at that hearing and by the G.A.O. study. The act specifically prohibits seclusion, the use of locked or barred rooms where children are left unattended, without supervision. The act also prohibits mechanical and chemical restraints, physical restraints that are life-threatening, including those that restrict breathing, and aversive behavioral interventions that compromise a student's health and safety. The G.A.O. study also revealed that restraint and seclusion-related fatalities and injuries most often involve children with disabilities. This vulnerable population must especially be protected from this type of abuse, and this legislation seeks to do just that. The Keeping All Students Safe Act prohibits the use of all types of restraint and seclusion in all schools receiving Federal financial assistance, and prevents the use of this type of intervention from being included in any child's individualized education plan. This prohibition is included in the act because we know that planning for the use of restraint or seclusion has been shown to actually increase their use. Although the act does allow for the use of restraint in emergency situations to prevent serious bodily injury to the student, other students in the classroom, or staff, it also requires staff to be trained and certified by a State-approved crisis intervention training program as to how to approach these types of emergency situations. This will help to ensure that in the rare instances where restraint is necessary to prevent serious bodily injury, all techniques will be administered appropriately and unnecessary injury can be avoided. Another issue uncovered by the G.A.O. study was that no web site, Federal agency, or other entity currently collects comprehensive data related to the use of restraint and seclusion in our Nation's schools. This Act will remedy this situation, as it requires each State educational agency to prepare and submit a report documenting, among other information, any instances in which physical restraint was imposed upon a student. This will allow us to track the use of restraint and to determine if our efforts to decrease it are being successful. Support for this Act comes from many sectors of the education community. Organizations such as Easter Seals, United Cerebral Palsy, The Arc of the United States, the National Disabilities Rights Network and the Council of Parent and Attorney Advocates all support this legislation. In addition, in the House, our colleague, Representative George Miller, introduced in April a companion bill with bi-partisan support. This act is an important step towards protecting all children within our Nation's schools from the use of restraint and seclusion. No child should be subjected to physical restraint or seclusion as a disciplinary technique or behavior intervention strategy. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HARKIN

Mr. HARKIN. Mr. President, as a U.S. Senator, I have no greater responsibility than to work to ensure our Nation's security. In that regard, I believe our Armed Forces must have all the tools they need to keep our country safe. That is why I support the vast majority of the provisions in the National Defense Authorization Act. The bill takes some small steps towards reining in runaway defense spending, which has nearly doubled in the past decade. This bill authorizes $26.6 billion less than requested at the beginning of the year, providing more than enough to defend our interests, while chipping away at the Pentagon's nonstop growth. It also lays the groundwork for reevaluating outdated Cold War-era overseas deployments in Europe and the Pacific that are both costly and increasingly unnecessary. All of these provisions I support and believe are important. However, because I believe this bill infringes on critical constitutional values, I must oppose final passage. I believe we can do a better job of protecting our national security without compromising these important values. This Nation has long been a beacon of liberty and a champion of rights throughout the world. Yet, since 9/11, in the name of security, we have repeatedly betrayed our highest principles. The past administration believed it could eavesdrop on Americans without a warrant or court order. It utilized interrogation techniques long considered immoral, ineffective, and illegal, regardless of laws and treaties. And, it intentionally sought to put detainees beyond the rule of law. Thankfully, the current administration has ended the worst abuses of these practices, despite the efforts of some of my colleagues to stymie these efforts. However, I am deeply concerned that the conference report continues us on a dangerous path, which sacrifices long-held and durable principles at the altar of fear and short-term expediency. To begin, this bill fails to make clear that under no circumstance can an American citizen be detained indefinitely without trial. I simply do not believe that a person should be seized on American soil and indefinitely detained without charges and without due process of law. Second, it mandates, for the first time, that non-American terrorist suspects arrested in the United States will be detained by the military rather than civilian law enforcement. Throughout our history, there has been a clear divide between our military--which fights wars abroad--and law enforcement in the United States, and that divide has worked. For example, since 9/11, over 400 terrorists have been successfully convicted in article III, not military, courts. For persons in this country, it is a dangerous precedent to not only authorize but actually require military custody. Finally, the bill would make it much more difficult to close the detention center at Guantanamo Bay. There simply is no compelling reason to keep the facility open and not to bring these detainees to maximum security facilities within the United States. The detention center is a recruiting tool for those who wish to cause us harm and been a stain on our Nation's honor. I agree with former Secretary of State Colin Powell, who said that ``we have shaken the belief that the world had in America's justice system by keeping [the detention center at Guantanamo Bay] open. We don't need it and it's causing us far more damage than any good we get for it.'' In the immediate aftermath of 9/11, the administration declared a broad and open-ended ``war on terror.'' I have always considered this a flawed description of the challenge that confronted us after the 9/11 attacks. After all ``terror'' is an endlessly broad and vague term. And a ``war on terror'' is a war that can never end because terrorism and terrorists will always be with us. Because of the never-ending nature of this so-called war on terror, it offers a rationale for restricting civil liberties indefinitely. This is not healthy for our democracy or for our ability to inspire other countries to abide by democratic principles. Mr. President, we will not overcome terrorism with secret prisons, with torture, with degrading treatment, with individuals denied basic rights; rather, we shall overcome it by staying true to our highest values and by insisting on legal safeguards that are the very basis of our system of government and freedom. Today is the 220th anniversary of the ratification of the Bill of Rights. The values embodied in that remarkable document have bound our Republic together for over 200 years and can bind us for 200 more if we hold them close.

Mr. HARKIN

Mr. HARKIN. Mr. President, for the Committee on Health, Education, Labor, and Pensions I report favorably the following nomination list which was printed in the Record on the date indicated, and ask unanimous consent, to save the expense of reprinting on the Executive Calendar that this nomination lie at the Secretary's desk for the information of Senators.

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, December 15, 2011, at 10 a.m. in SD-430 to conduct a hearing entitled ``Prescription Drug Shortages: Examining a Public Health Concern and Potential Solutions.'' For further information regarding this meeting, please contact the committee at (202) 224-7675.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that Ashley Stevens and Anna Esten of my staff be granted the privilege of the floor for the duration of today's proceedings.

Mr. HARKIN

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

Mr. HARKIN

Mr. HARKIN. Madam President, I have come to the floor on numerous occasions this year to discuss the distressed state of America's middle class. In fact, in our committee, we have had a series of hearings looking at the state of the middle class and what is happening to the middle class in America. In recent decades, our Nation's once secure middle class has struggled in the face of stagnant wages, declining job security, rising indebtedness, and disappearing pensions, not to mention sharply higher costs for health care, education, food, and energy. It wasn't always this way. In the three decades after World War II, America's middle class grew rapidly. Incomes rose steadily as the middle class secured its fair share of the expanding national wealth. The Federal Government invested generously in infrastructure building, innovation, and education, vastly expanding opportunity for people to move into the middle class. America became a more equal, fair, and just society, built on a solid bedrock of a strong middle class. I am an example of that. My father had an eighth grade education. He was a coal miner. My mother was an immigrant with very little formal education. Yet their three children were able to go to good schools, get good jobs, and get an education. All three of their children graduated from Iowa State University, a great land grant college, because it didn't cost very much and we could afford to go there and we were able to enter the middle class from those humble beginnings. But beginning in the 1970s, much of that progress started to come to a halt. Our manufacturing base declined, and the U.S. economy became increasingly dominated by financial markets and Wall Street--a trend that was accelerated by ill-advised deregulation. Soaring profits and sky-high salaries attracted more of our Nation's best and brightest to pursue careers in finance at the expense of engineering, teaching, and public service. Wall Street bankers were emboldened by deregulation. They were incentivized by huge salaries and bonuses to take ever greater risks, and they devised ever more exotic and risky investment schemes. As we all know, in 2008, this frenzy of greed and recklessness culminated in the catastrophic meltdown of our Nation's financial system. This economic crisis was a hammer blow to our already struggling middle class. The value of Americans' homes and retirement accounts plummeted, millions lost their jobs or were forced into foreclosure, and hopes for the future dimmed. In the wake of this financial crash, with its pervasive damage to the middle class, the American people demanded action to rein in the worst abuses of Wall Street and to prevent a replay of 2008. This led to the Dodd-Frank Wall Street Reform and Consumer Protection Act--let me repeat that, the Wall Street Reform and Consumer Protection Act--the most sweeping reform of our financial system since the Great Depression. For hundreds of millions of American consumers in their everyday lives, no aspect of this law is more important and transformative than the creation of the Consumer Financial Protection Bureau. Again, read the words of the legislation. It is the Wall Street Reform and Consumer Protection Act. Therefore, a big part of the bill was to build in consumer protections, and one of those was to create the Consumer Financial Protection Bureau. I have come to the floor in strong support of the nomination of Richard Cordray to be Director of this Consumer Financial Protection Bureau. The idea behind this bureau is very simple. We need a cop on the beat looking out for the best interests of consumers who use financial products, just as we have regulators looking out for the financial health of banks. A strong Consumer Financial Protection Bureau will ensure consumers are not lured into debt through hidden fees, for example. It will simplify disclosures and reduce paperwork so consumers aren't faced with mountains of paperwork they can't understand. It will oversee providers of consumer credit, such as payday lenders, which for years have acted like banks without facing any kind of banking regulation. Additionally, as student debt surpasses credit card debt as the largest source of consumer debt--which has already happened, by the way, that student debt right now is larger than credit card debt--this Consumer Protection Bureau can play a critical role in helping families better understand the increasing challenges of facing a college education and financing it as well as bringing some sanity to the private student loan marketplace. Finally, a key function of the Consumer Financial Protection Bureau will also provide help to our veterans through the Office of Service Member Affairs. Sadly, too often our servicemembers fall victim to abusive financial traps upon their return home. The Bureau has made an outstanding choice for leadership of this office with the selection of Mrs. Hollister Petraeus. But cynically, my Republican colleagues have chosen to protect the unscrupulous lenders that prey on military families. They would rather neuter the entire agency, have no Director, than to fully empower Mrs. Petraeus to protect military personnel and their families from all forms of predatory lending activities. These steps are essential elements of helping to tilt the scales of our economy back into balance so that once again we put the interests of the 99 percent of Americans who use financial products ahead of the 1 percent who profit from them. I was deeply disappointed when our Republican colleagues voted against the Wall Street reform bill that should have been overwhelmingly a bipartisan bill. But now the bill is law, and guess what. My Republican friends are doing everything in their power to prevent it from doing its important job. Earlier this year, 44 Republican Senators served notice that they would not confirm anyone--let me repeat, they would not confirm anyone--to the position of Director unless structural changes are made to the Bureau that would effectively take away its ability to stand up for consumers. The changes they have demanded are unfair and unreasonable. No other independent financial regulator has its rules subject to veto by other regulatory agencies. To suggest that the only regulator with a primary mission to protect everyday hard-working Americans should face unprecedented levels of oversight simply does not make sense. Once again, the Republicans have brazenly put the interests of Wall Street, payday lenders, and unscrupulous mortgage lenders ahead of the interests of Main Street consumers. To restore the American economy to its place, we need a financial system that works for them. This means a financial system where consumers choose services based on a full and transparent understanding of the costs of those services. But absent a Director, the Consumer Finance Protection Bureau won't be able to supervise payday lenders, debt collectors, or private student lenders. They won't be able to make it easier for the good actors in the financial system--our community banks, for example, or our credit unions--to compete against those who are making a large profit by unfairly taking advantage of unsuspecting consumers. Richard Cordray is a superb choice to serve as the first Director of this Bureau. As attorney general of Ohio, he was a strong and fair advocate for consumers. His work has earned him the endorsement of bankers, CEOs, and civil rights leaders across the State of Ohio. He is a public servant of the highest caliber who deserves to be given the opportunity to lead this critically important Bureau. As a matter of fundamental fairness to hard-working Americans on Main Street, we need an effective, evenhanded Consumer Financial Protection Bureau. Mr. Cordray deserves the opportunity to lead this new Bureau. I call upon my Republican colleagues, at long last, to put the interests of consumers ahead of the interests of those whose reckless pursuit of profits and bonuses have caused so much harm to our society and economy. I call upon my Republican colleagues to ignore the legions of Wall Street lobbyists who are urging them to disable and, if possible, kill the Consumer Financial Protection Bureau. Richard Cordray is a dedicated and impartial public servant who will put the best interests of American consumers first. We should give him that opportunity. I hope my colleagues will join me in strongly supporting his nomination. Mr. President, I yield the floor.

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, December 14, 2011, at 10 a.m. in SD-430 to mark up the following: S. 1855, the Pandemic and All-Hazards Preparedness Act Reauthorization of 2011; Wendy Spencer, to be Chief Executive Office of the Corporation for National and Community Service; Deepa Gupta, to be a member of the National Council on the Arts; Christopher Merrill, to be a member of the National Council on the Humanities; Stephanie Orlando, to be a member of the National Council on Disability; Gary Blumenthal, to be a member of the National Council on Disability; and en bloc, one hundred and seventy-eight nominations to the Public Health Service. For further information regarding this meeting, please contact the committee on (202) 224-5375.