Tom Harkin

Mr. HARKIN

Mr. HARKIN. Mr. President, here is a letter from the Partnership for New York City. Again, I won't read it all, but it says: As an advocate for businesses and economic development in New York for more than twenty-five years, I have had the opportunity to interact with many public officials. Ms. Smith stands out as one of the most dedicated and effective of our state commissioners and I consider her to be an excellent choice for the post that the President has selected her for. That is from the president and CEO of the Partnership for New York City. I ask unanimous consent that it be printed in the Record.

Mr. HARKIN. Here is a letter from the Manufacturers Association of Central New York: The Department of Labor under the leadership of Commissioner Smith has been fully supportive in our mission to enhance and improve our sector's workforce. Commissioner Smith and her team have been informative, helpful, and involved every step of the way, ensuring our membership has the tools, education and skills they need in order to succeed. It is signed by Randy Wolken, president of the Manufacturers Association of New York. I ask unanimous consent that this letter be included in the Record.

Mr. HARKIN. Here is a letter from the Plattsburgh North Country Chamber of Commerce. They said: Since she assumed leadership of the New York State Labor Department in 2007, we have enjoyed not only attention and engagement from Patricia Smith but a genuine working partnership. It goes on to say: I could cite additional examples, but the bottom line is this. Patricia Smith has been an outstanding partner as Commissioner of the New York State Labor Dept., and will be an outstanding solicitor for the U.S. Labor Department. We strongly encourage her earliest possible confirmation by the Senate. This letter is signed by Garry F. Douglas, president and CEO of the Plattsburgh North Country Chamber of Commerce. I ask unanimous consent that it be printed in the Record.

Mr. HARKIN. Here is a letter from the Long Island Forum for Technology. It says: With a strong record of achievement and leadership, Patricia Smith has been an outstanding Commissioner of the NYS Department of Labor. With her vision and her energy, we believe she will make an outstanding addition to the U.S. Department of Labor's leadership team and we urge her earliest confirmation. It is signed by the president of the Long Island Forum for Technology. I ask unanimous consent that it be printed in the Record.

Mr. HARKIN. Lastly, here is one from the U.S. Women's Chamber of Commerce: After learning of Ms. Smith's qualifications, expertise and the law she has worked to uphold, I can clearly see that she is someone who would work with conviction to enforce the laws of the United States of America. Additionally, I am impressed with her out-of-the-box thinking in creating programs that will keep jobs. We especially need these attributes in this time of economic challenge. Please accept Ms. Patricia Smith's nomination, and confirm Ms. Smith as Solicitor General of the United States Department of Labor. It is signed by Margot Dorfman, CEO of the U.S. Women's Chamber of Commerce. I ask unanimous consent that it be printed in the Record.

Mr. HARKIN. Mr. President, it is clear that Patricia Smith is eminently well qualified. She has been thoroughly vetted. We need a Solicitor at the Department of Labor. This nomination has been hanging here since last April. It is time to move on. But, again, the Republicans are exercising their right--although I think it is an abuse of that right--to drag it out for 30 more hours, to keep the Senate in session, for no purpose whatsoever other than to slow things down in this Chamber. To me, that is not a good enough excuse, when only one person came here today to speak against her, and that person spoke against her yesterday. I read the transcript. Nothing new; same stuff. I would hope we could collapse this timeframe and vote on it, but evidently the Republicans are intent on stretching this out to the maximum 30 hours. As I said, it may be their right, but I think it is an abuse of that right. Mr. President, I yield the floor and note the absence of a quorum.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on February 2, 2010, at 9 a.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on February 2, 2010, at 2:30 p.m., to conduct a hearing entitled ``Prohibiting Certain High-Risk Investment Activities by Banks and Bank Holding Companies.''

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

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on February 2, 2010.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on February 2, 2010, at 10 a.m., in room 215 of the Dirksen Senate Office Building, to conduct a hearing entitled ``The President's Fiscal Year 2011 Budget.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on February 2, 2010, at 10:30 a.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on February 2, 2010, at 2:30 p.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on February 2, 2010, at 3:30 p.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet, during the session of the Senate, to conduct a hearing entitled ``Hearing on the Nomination of Harold Craig Becker to be a Member of the National Labor Relations Board'' on February 2, 2010. The hearing will commence at 4 p.m. in room 430 of the Dirksen Senate Office Building.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on February 2, 2010, at 10 a.m., to conduct a hearing entitled ``Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet, during the session of the Senate on February 2, 2010 at 2:30 p.m.

Mr. HARKIN

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

Mr. HARKIN

Mr. HARKIN. Mr. President, I suggest the absence of a quorum.

Mr. HARKIN. I suggest the absence of a quorum.

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

Mr. HARKIN. Mr. President, I listened very carefully to the statement made by my friend and ranking member, Senator Enzi. Many of the points raised by the Senator have been gone over before by the committee. These were things we looked into. So I think I would like to respond a little bit, almost point by point, to some of those concerns that were raised in the statement made by Senator Enzi. But before I do that, I, again, wish to make one thing very clear. We are talking about something--this Wage Watch. Is that what it is called? Wage Watch. We are talking about something that is perfectly legal. Almost, listening to my friend's comments on it, you would think there was some subterfuge going on. This was perfectly open and above board and everything. No one is alleging anything was ever done illegally. No person--none of the Wage Watch people--did anything illegal. In fact, all the things they were engaged in--and I say ``were''; I use the past tense because it was a pilot program and it has now ended and they are now assessing it--but all the things they were engaged in, they can engage in today. Anyone can. I can. You can. Staff can. Anybody can do this. It is not illegal. It is perfectly legal. So let's keep in mind what we are talking about is a perfectly legal, open, transparent pilot project that was started by the New York Department of Labor. Again, as I indicated earlier with my charts, why were they doing this? Because so many people had been found who were not being paid the minimum wage; they were working overtime and not being paid overtime. A lot of times these low-income workers--many of whom are recent immigrants to this country--do not know what their rights are. They are fearful of losing their job. It is the only thing they have to keep their families together, and if the employer decides to shave a little bit off their overtime, what are they going to do? They have no one to go to. So that is why I pointed out in my charts how much money and how many times Commissioner Smith had gone after bad actors, bad employers, to get money back for workers, for their families, for their retirement systems they were cheated out of. As she said to me, the good employers--the good employers--the businesspeople in New York wanted her to do this because the bad actors who were shaving, who were not paying the minimum wage, who were not paying overtime, were taking unfair advantage of the honest employers that were meeting their legal obligations. That is why it is no surprise to me we have all these letters of support for Ms. Smith from the business community. I already mentioned the Business Council of New York, the Manufacturers Association of Central New York, the entire New York congressional delegation--all these writing letters in support of her, talking about how fair she is and how she would listen and work things out. When she started--she did not start it--but when the department started this Wage Watch, that was the intent of it. It was information. My friend says they started out from the beginning for enforcement. Well, sure, what do you think? Do you think someone is going to find out someone is not paying someone the minimum wage, and they are not going to tell anybody, they are not going to tell the Department of Labor, they are just going to say: Well, that is just the way it is. Of course, the end result is to enforce the law, to let people know their legal rights so that law can be enforced. Of course, that is the end result of it. But the implementation of that was an informational program, to get information and guidance out to people, again, who--we are not talking about Members of Congress. We are not talking about our educated staff who have been to the best schools and have all these fancy degrees. We are not talking about accountants. We are not talking about people working on hedge funds in New York or on Wall Street. We are talking about people working in Queens at the minimum wage in the garment industry--janitors, homemakers, others out there who are working in food service who are at the minimum wage or slightly above it. So we are talking about people who do not have all that knowledge base we kind of assume workers would have. I wish to make that point clear before I start to talk about some of the points that were made. Again, a lot has been made about the plans for expansion and about Senator Burr's question. I looked at Senator Burr's question. I looked at her response. I was there that day. It did not register. But then later on we began to look at this when issues were raised by my Republican colleagues. Well, quite frankly, the e-mails that were shown by my colleague were not e-mails from Patricia Smith. They were e-mails from Terri Gerstein, not Patricia Smith. Quite frankly, to expand it to include occupational safety and health training, there was an e-mail to Terri Gerstein from Joel Shufro. Well, much was made of this. Again, I will respond in two ways. Much was made of expanding it to occupational safety and health issues training. My response is, yes; so? Shouldn't people also know not only what their rights are in terms of what their wages are, but shouldn't they also have the right to know whether something is unsafe, whether their health is being endangered? It would seem to me this also has to get out there, to know what their rights are to protect their health and their safety. I don't have any problem with that, that they should have that kind of training also, as well as to be on the lookout for that. Sure, if they are working in hazardous conditions and with hazardous materials that can affect their lives and their livelihood and their future health, somebody ought to know about it. Someone should know about it. On the expansion of the program beyond just the wage-and-hour expansion in the State, it looks as though the deputies may have gotten a little ahead of her when they were doing this. Again, keep in mind, I know the buck stops here. I saw that chart. The buck always stops here. We are responsible. As I pointed out, Ms. Smith was running an agency with an $11 billion budget--$11 billion, 4,000 employees. This was a $6,000 pilot project, hardly the meat and potatoes of what she was doing in her job every day. Plus, she was focusing on one of the worst economic crises New York and this country has faced. So keep that in mind. Ms. Smith was clear in her response to us about the fact that she had no discussions about a potential expansion with anyone other than generally indicating that: . . . if it proved successful, my goal would be to expand it to other areas of New York State. At that time, I had not authorized my staff to proceed with a statewide expansion of the program, nor had I discussed with them any steps that were preliminary to a possible expansion. My first-- And I am reading from her response to our written questions. Ms. Smith says: My first substantive discussion about the steps needed to be taken to evaluate any potential expansion of Wage and Hour Watch occurred in late May 2009 with my Executive Deputy Commissioner. . . . At that time he informed me that the Deputy Commissioner for Wage Protection and Immigrant Affairs had recently discussed with him what to do about the additional requests to join the program to which we had never responded. He told me that he had authorized her sometime in mid May to send out e-mails to groups in New York that had expressed interest in the program in case we judged the pilot a success. He had not personally seen the e-mail. Therefore, within days, I asked to review the text of the e-mail the Deputy Commissioner for Wage Protection and Immigrant Affairs was using. I told her that it could give the impression that a decision to expand the pilot had been made, which it had not, and made appropriate changes to the text. I directed her to use my corrected version in all future e-mails. So, again, rather than saying this has to be expanded, she said let's look at the results and see what the results are, and she took it upon herself to correct those mailings that went out from her office. The other thing that was said had to do with unions and that she misled the committee. There is a claim in response to a written question that she instructed unions participating in the Wage and Hour Watch Program not to use their status as wage watch groups as a union organizing tool. In fact, the New York Department of Labor tacitly condoned this practice. Those are the charges that were made. Well, first of all, again, there is nothing improper or unlawful about unions using their Wage and Hour Watch activities as part of organizing campaigns. There is nothing illegal about that. I would like to have someone show me where that would be illegal. There is nothing illegal about that. However, Ms. Smith, in order to be fair, took all appropriate steps to discourage that activity because business groups had raised concerns about this issue with her. She responded immediately, specifically prohibiting unions from distributing their own organizing literature while they were performing wage and hourly watch activities. This was a written question to her: Were you personally aware of any instance when a labor organization participating in the Wage and Hour Watch program engaged in labor activities? If so, how did you respond? If not, how would you have responded to such activity? Here is what Ms. Smith responded in writing: I am not personally aware of any instance when a labor organization participating in the Wage and Hour pilot program engaged in organizing functions while performing Wage and Hour Watch functions. If I had been aware of such behavior I would have decided to terminate them from the pilot. Here is another question: In your response to a question submitted by Senator Enzi on May 12, 2009, you describe a March 2009 meeting with numerous retail trade organizations where these organizations requested that groups participating in the Wage and Hour Watch pilot program be prohibited from giving out information about their group while doing Wage and Hour Watch activities. How did you respond to that request, and what actions did you take to follow up on that request? This has to do with labor unions too. I told the trade associations that their request was reasonable, that I would make sure the participating groups would be specifically instructed to refrain from giving out their own materials while doing Wage and Hour Watch activities. I also told the trade associations that their request would be explicitly incorporated in any future written agreements. Within a week of that meeting, I instructed Lorelei Boylan, Director of Strategic Enforcement . . . to call each of the groups participating in the Wage and Hour Watch pilot and give them that instruction. Within a week after our conversation, she reported back to me that she had contacted each of the groups, explained the specific prohibition, and that they agreed to it. Since then, I have, from time to time, asked my staff if they were aware of any problems with the groups' complying with that particular instruction, and they have reported no problems. Again, here is her e-mail. Some talked about how these people would go in and use authority to do something. It was compared to the Neighborhood Watch program. As my friend said, in the Neighborhood Watch program, people can't go into people's homes. Well, under this program, the Wage and Hour Watch Program, they could not go into a private employer's business either. They couldn't go into somebody's office, somebody's business. They could go into a store where the general public could go, yes. They could go into Wal-Mart or they could go into a retail establishment where the public generally could go, but they could not go into, let's say, a manufacturing concern where the public was not allowed to go, the same as Neighborhood Watch. You couldn't go into somebody's home. You could sure go into a community center. You could go into a shopping center. You could do a lot of things. You could go to the public park as Neighborhood Watch. But here is a letter from Patricia Smith dated January 15, 2009, long before any of this stuff ever came out: Dear Labor Standards Staff: I want to let you know about a new pilot program we will be announcing on Friday called ``Wage Watch.'' The goal of the program, as with all of our enforcement efforts, is labor law compliance throughout the state. Complying with the law. Anybody opposed to that? But here is the important paragraph: Please note that the groups and individuals who participate as Wage Watchers will not be agents, employees, or official representatives of the Labor Department. They are not replacing staff and they are not going to be conducting investigations of any kind. Their role is limited to doing outreach and community education, and to reporting any violations they encounter to the Division. I don't think you can get much clearer than that. That went out on January 15. There was one other thing I guess I have to respond to, and that is that there is some confusion as to whether the idea for this came about internally or whether it was external. Again, I don't understand what the big problem is. Who cares where it came from? Again, it is a legal operation, ethical, aboveboard, not nefarious in any way. There is some problem about whether it came from internally or outside. When Patricia Smith testified at the hearing, she was being accused of misleading us because she said it was ``an internally crafted group'' and that ``it was only after we sat down and crafted it ourselves that we reached out to groups to see if they would be interested.'' Well, I have met with Ms. Smith. We have talked about this. We went through all the records. At that point in time when she testified that was to the best of her knowledge, that it had come from the people in her department and that they had suggested this and then they were going to go to outside groups to get people involved. What she didn't know is that some people on her staff had been meeting with outside groups in terms of coming up with this kind of an approach. Then she corrected it later on when she said: Yes, I found out later that some people on my staff had done this. But, again, let's keep in mind there was nothing inappropriate about this. There was nothing inappropriate about her staff meeting with outside groups to talk about this. Absolutely nothing. She just happened to make a mistake in front of the committee in saying they hadn't gone to outside groups before it came up, and actually it had been discussed with outside groups with her staff. What is the big deal? Is someone saying there is something illegal? No, there is nothing illegal about that. Again, there is nothing inappropriate about it. It was simply a mistake she made in her testimony because she didn't have full knowledge of what her staff had been doing at that point in time in that Wage and Hour Watch. Lastly, I know it will be said: Can she manage a large organization if she doesn't know about what one staff person may have done in terms of talking to an outside group? Well, as I point out, she ran an $11 billion agency, 4,000 employees. Her focus more than anything--and I have talked to her about this, and I talked earlier about it with the charts I had--was going after these employers who were cheating people out of their minimum wage, taking away retirement benefits, working them overtime and not paying them overtime. She was getting money back for these families. This was a $6,000 pilot project in an $11 billion agency. So she may have missed a little bit here or missed something there or missed one person talking to somebody. I would be more upset about it if it were illegal activity. If, in fact, these things had been going on and they were not legal, they were not ethical, yes, then I would say the buck stops here, you bet. But that is not the case. This is perfectly legal, perfectly ethical. So I can understand if something went on in that agency in a small pilot project and she didn't know every single thing about it and who talked to whom and when something occurred. That is the essence, as I understand it, of the arguments on the other side. That seems to be the essence of it. I think it is making a mountain out of a molehill. She is perfectly qualified to be the Solicitor, and I hope the vote coming up shortly will confirm that.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that Jeff Barham, a detailee in the Senate HELP Committee majority office, be granted floor privileges for the duration of the consideration of Ms. Patricia Smith's nomination to be Solicitor for the Department of Labor.

Mr. HARKIN

Mr. HARKIN. Madam President, I thank the Senators. The delay in the passage of the Tax Extenders Act of 2009 will cause problems for a wide variety of groups, as the distinguished Senators from Montana and Iowa have outlined. I believe the negative impact of our failure to act this year will be felt first, and felt most strongly, by manufacturers of biodiesel. Without the immediate passage of legislation to extend the biodiesel tax credit, a large number of biodiesel manufacturing plants are likely to close down because they do not have the resources to operate without the financial benefit of the credit. Biodiesel is a key part of our Nation's success in biofuels. These biofuels, produced here in our own country, are helping to reverse our near-total dependence on petroleum for transportation in this country. The hard truth is that we get about 70 percent of our petroleum from other countries, and many of those countries are unstable or are unfriendly to the United States or both. So biodiesel is helping us restore national energy security. Biodiesel is made from vegetable oils or animal fats. The biodiesel industry employed over 50,000 workers and added over 600 million gallons of biobased fuel last year to help power the diesel engines across our Nation and throughout the economy. However, this is still a very small and struggling industry. It is absolutely dependent on continuation of the biodiesel tax credit. Without this credit, most of the biodiesel plants in this country will simply be forced to shut down, thus idling important domestic fuels production capacity as well as putting as many as 20,000 employees out of work. We can't let that happen. And, if for any reason the credit was not made retroactive, bankruptcy would in a good number of instances be a quick result. I do appreciate the efforts by the chairman and ranking member to move forward with this badly needed legislation at the first opportunity.

Mr. HARKIN

Mr. HARKIN. Yes, the intent of the religious exemption is to focus on an individual who is a member of a religious sect described in 1402(g) and who is an adherent of the teachings of that sect notwithstanding his or her employment status.