Barbara Mikulski

Ms. MIKULSKI

Ms. MIKULSKI. I don't know whether the Senator wants to yield back his time or use the time for further debate.

Ms. MIKULSKI. I reserve the remainder of my time.

Ms. MIKULSKI. Madam President, how much time remains?

Ms. MIKULSKI. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Ms. MIKULSKI. Mr. President, today is a great day in the Senate. We have now overwhelmingly passed a bipartisan bill to correct an injustice that has been prevailing among people--women, minorities, and people with disabilities--in the area of wage discrimination. What is so great about today is not only our overwhelming legislative victory, but we showed, No. 1, that we can change the tone. I thank Leader Reid for the leadership he provided in creating the legislative framework where we can move ahead with open debate. Notice that we did this bill in a well-measured, well-modulated, well-paced way. There was no need for cloture motions. There was no need for parliamentary quagmires. What it showed, though, is there is a need for civility and cooperation. We, as Americans, have to know, given this economic situation, that we are all in it together. When we work together, we now know each and every one of us makes a difference. But when we truly work together, we can make change. Today we changed the law, we changed direction, we change history, and I thank all my colleagues and all the staff who have made this possible. I also wish to say a special thanks to Senator Ted Kennedy. I hope he is watching tonight because, Ted, we miss you. We know you are not on the floor; you are with us in spirit. There is more to be done. We cannot wait for you to be back. Let's go and get the job done. America is counting on us to do the kinds of things we have done today and act the way we did, the way we got the business done. vote explanation

Ms. MIKULSKI. The Senator from South Carolina has how much time remaining?

Ms. MIKULSKI. Mr. President, I ask unanimous consent that my remarks be extended by 1 minute for the purpose of acknowledgment and thanking people.

Ms. MIKULSKI. Madam President, I ask unanimous consent that Senator Reed of Rhode Island be recognized for up to 5 minutes to speak on the bill; that following his remarks, the Senate resume consideration of the Isakson amendment No. 37, with up to 10 minutes equally divided between Senator Isakson and myself, or our designees; that upon the use or yielding back of time on the Isakson amendment, the Senate resume consideration of the DeMint amendment No. 31, with 20 minutes of debate, 10 minutes under the control of Senator DeMint or his designee, 5 minutes each under the control of Senator Mikulski, me, and Senator Alexander or our designees; that following the use or yielding back of time on the DeMint amendment, the Senate proceed to vote in relation to the following amendments: DeMint No. 31, and Isakson No. 37; further, that no amendments be in order to the pending DeMint or Isakson amendments prior to the votes; and that there be 2 minutes of debate equally divided between the votes.

Ms. MIKULSKI. I had a question for Senator DeMint, and if the Senator will withhold, after I make my remarks, he can address the Chair. The consequence of the DeMint amendment is that it amends the National Labor Relations Act. Let me tell my colleagues the consequences. First of all, let's go to the facts. The Lilly Ledbetter Fair Pay Act is about pay discrimination, about wage discrimination. That is what we have been debating on both sides of the aisle. The debate has been focused, it has been targeted, it has been precise and, I might add, quite civil. It has nothing to do with right-to-work laws. This is not the time nor the place to debate whether we should have a Federal right-to-work law. We need to restore the ability of victims of pay discrimination to pursue justice. If we want to have a debate on a Federal right-to-work law, then I suggest to the Senator from South Carolina that he offer his own bill, let's put it through the committee, and let's vote on it, but let's not bring right-to-work laws into the wage discrimination focus of the Lilly Ledbetter Fair Pay Act. So let's go now to the facts or the merits of the amendment being offered by Senator DeMint. No. 1, it reverses decades of established labor law and addresses the issues that have nothing to do with the Fair Pay Act. The DeMint amendment undermines States abilities to choose what labor laws work best for them. That is the point made by the Senator from Tennessee. It would also impose right-to-work laws on workers who do not want them. Federal labor policy has been neutral on right-to-work issues for over 60 years. That means States are free to decide whether they want to impose right-to-work laws. The amendment would impose right-to-work laws on States that do not want them, and it would even impose such laws in the railroad and aviation industry, which has never been subjected to them. We have debated this issue before. A bipartisan majority of Congress rejected this approach in the 104th Congress, which was in 1996. We had a vote on a similar amendment, and it was defeated 31 to 68. I hope we defeat the DeMint amendment today. Let's stick strictly to the Lilly Ledbetter discussion. We have been having an excellent discussion all day long. Again, I urge defeat of the DeMint amendment. Madam President, how much time do I have remaining, and, of course, answer the questions of our colleagues as to time.

Ms. MIKULSKI. Madam President, I oppose the Isakson amendment because it would create an arbitrary and unfair cutoff for who gets the benefit of this fair pay bill. The Isakson amendment No. 37 would limit application of the bill to only claims that arise out of discrimination that takes place after the bill passes. There is no principled reason for applying the bill only to future cases. The point of this bill is to correct a terrible wrong done to victims of pay discrimination. We should be seeking justice for as many people as possible. Applying this bill to pending cases would not be an unfair surprise for employers. This bill restores the law to where it was the day before the Supreme Court decided the Ledbetter case. There is nothing new in this bill. If this amendment passes, it would create a 20-month gap in the law. Let me repeat: If the Isakson amendment passes, it would create a 20- month gap in the law. Those workers who were unfortunate enough to have been discriminated against during that 20-month period would be treated worse than those who came before them and those who came after them. That is arbitrary, and it is unfair. As we work on this wage discrimination bill, we cannot fix only part of the problem. We have not come this far to leave some victims out in the cold. Yet that is what I am concerned the Isakson amendment would do. Madam President, I will urge the rejection of the Isakson amendment, and when it comes time to call up the vote, I will be making a motion to table. But I am not making that motion now.

Ms. MIKULSKI. Madam President, first I wish to say to my colleague from Georgia that I appreciate the tone of civility in which he has offered his amendment, and that has been characteristic of the whole day. I hope it signals a new tone. Although I appreciate the tone, I still disagree with the amendment. The Lilly Ledbetter Act does not go back to the inception of the Civil Rights Act. It goes back only to the Supreme Court decision of May 28, 2007. So I continue to disagree with the Isakson amendment because I do believe it would create an arbitrary and unfair cutoff for those who would benefit from this bill. I yield the floor.

Ms. MIKULSKI. Madam President, I will yield the floor to Senator Reed. I first thank Senator Harkin for managing the bill during the Lilly Ledbetter press conference. His devotion to this issue is well known.

Ms. MIKULSKI

Ms. MIKULSKI. What I would recommend is kind of rotating back and forth every 5 minutes. That way everybody gets a chance to speak, everyone gets a chance to debate, and everyone will get a chance to vote at 11:30.

Ms. MIKULSKI. Mr. President, while we are working this out, I suggest the absence of a quorum, with the time equally divided, while we establish our next steps forward.

Ms. MIKULSKI. Mr. President, how much time remains in the debate?

Ms. MIKULSKI. Now, let's get to the facts. The difference between the Hutchison alternative and the Lilly Ledbetter bill is this: The Lilly Ledbetter Fair Pay Act restores the law to the way it was before the Supreme Court decision, Ledbetter v. Goodyear. The Hutchison alternative creates a whole new legal standard which regrettably is very vague and I am concerned will trigger a tremendous amount of lawsuits and further add to hostility and suspicion in the workplace. The issue of triggering more lawsuits as an argument for the Hutchison alternative is flawed because the Hutchison substitute will create confusion in the courts and for employers trying to interpret when employees should have known they were being discriminated against. The Ledbetter Fair Pay Act establishes a legal framework that had been accepted by nine appellate courts and the EEOC, and it has been a standard that has stood essentially the test of time. Let's go to the statute of limitations. The Lilly Ledbetter Fair Pay Act says it is 180 days from the last unequal paycheck, not from the initial point of hiring or the initial point of a discriminatory pay raise. The Hutchison alternative goes 180 days from when employees have or should have been expected to have knowledge that they were being discriminated against. This ``expected to have'' is really what is so foggy. Also, as long as employers are discriminating, employees can get justice. Under the Hutchison alternative, employees have no remedy if the claim is not brought when they should have known. I don't know when you should have known. Also, the Lilly Ledbetter Act gives workers a chance to figure out whether they are being discriminated against, approach the employer, and perhaps have an alternative dispute resolution on this before EEOC complaints, before going to court, and so on. I am concerned that the Hutchison amendment language ``should have known''--this ``should have known,'' where you would have to operate on rumor and speculation--will force many lawsuits as employees will sue before running out of time. The Lilly Ledbetter Fair Pay Act also gives workers a chance to be able to resolve this. If an employer is currently paying women less than men, that is illegal. Under the Hutchison amendment, it forces employees to prove when they suspect discrimination. I have made that point over and over. So in summary, I say to the private and nonprofit sector: If you don't want to be sued, don't discriminate. That is the best way to go. If you don't want to be sued, don't discriminate. The other point I wish to make is that the Fair Pay Act doesn't only affect women, it affects anyone who might be discriminated against in wages. So that means yes for women, but this bill would cover you if you have been discriminated against on the basis of race, ethnicity, national origin, religion, and the traditional forms of discrimination that regrettably we have dealt with. So this bill is not a women-only bill. We women certainly wouldn't discriminate against other people. The Lilly Ledbetter Fair Pay Act takes us to where we need to be to fully implement the Civil Rights Act of 1964. If we have a dream, I have one too: that we pass the Lilly Ledbetter Fair Pay Act. Mr. President, I yield the floor and reserve the remainder of my time.

Ms. MIKULSKI. I said, did I yield back my time?

Ms. MIKULSKI. Mr. President, I just wanted to say a few words. First of all, let's go to the remarks that were made that, somehow or another, by passing the Lilly Ledbetter Fair Pay Act, we are going to further undermine our economy and our ability to hire people. I find it surprising--first puzzling, then surprising--to say that the way we are going to get out of this economic mess is if we continue the status quo--or the stacking quo--which is that if you have discrimination in the workplace, don't pass the law to do greater clarification. I think that is a flawed argument. First of all, women of America already subsidize our economy. And you know what. We are mad as hell, and we don't want to take it anymore. Everyone needs to hear that: We, the women of America, are mad as hell, and we don't want to take it anymore. Now, why do I say that? We are already paid 77 cents for every dollar that men make, so we are already subsidizing the economy in the workplace. Then when you go into the home, our work is often undervalued and it is certainly not compensated. So somehow or another women's work doesn't quite count in the same way. Well, we want to be counted, and we want what we do to be counted. We want the world to know that if we are doing equal work, we want equal pay. We do not want to subsidize the economy. We don't want any subsidies. We want fairness, we want justice, we want the law on our side, and we want the courthouse doors open to us. Now, if business thinks the only way they can succeed is by continuing these practices, then business has a lot of lessons to learn. And by God, when you look at what the banks did, you can certainly see that. If business doesn't want lawsuits, there is one clear, right way of avoiding a lawsuit: don't discriminate. If you are an employer and you are paying equal pay for equal or comparable work, you will not be sued, you will not be challenged, and you have no need to fear. If you want to have some economic stimulus, give us that 23-cent raise--all those single mothers out there; as Senator Lincoln spoke about earlier, all those Norma Rays, all those Lilly Ledbetters, all those people who have lined up through the ages. So 23 cents might not sound like a lot, certainly in Washington where we give zillions to banks and they do not even say thank you. They don't even promise they will send out more or promise they will join with our President and work through this. So we are very clear that we want to be paid equal pay for equal work, and we want it in our checkbooks. But we know we have to get to that by having the Ledbetter bill in the Federal lawbooks. I can understand some of the fine points, the concerns raised by Senator Enzi. I think I have presented a sound legal argument that shows that the only thing we mean by the ``affected party'' is that person who is actually discriminated against, or if a Federal entity sues on their behalf. I think we have clarified it. But I believe we also need to be clear why we are doing this legislation. We are righting a wrong, we are addressing a grievance, and we are ensuring those fundamental principles of our society, which are fairness, equality, and justice. Mr. President, I am going to yield the floor, and I yield back my time.

Ms. MIKULSKI. Mr. President, how much time is remaining on my side?

Ms. MIKULSKI. Did I yield back my time?

Ms. MIKULSKI. At that time I was unaware that Senator McCaskill was coming to the floor. I ask unanimous consent for 5 minutes for Senator McCaskill to be able to speak.

Ms. MIKULSKI. Mr. President, the Enzi amendment is unnecessary. The ``affected by'' language is not vague. Our bill only applies to workers and their employers. Other parts of title VII that our bill does not change make this clear. The ``affected'' language is patterned after the Civil Rights Act of 1991. It has been around for 17 years and no one has tried to interpret it to apply to grandparents, spouses, or children, or anyone else other than the worker. I understand the Enzi amendment No. 28 is now pending. I move to table the amendment and ask for the yeas and nays.

Ms. MIKULSKI

Ms. MIKULSKI. 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 ``What States are Doing to Keep us Healthy'' on Thursday, January 22, 2009. The hearing will commence at 10 a.m. in room 430 of the Dirksen Senate Office Building.

Ms. MIKULSKI. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, January 22, 2009, at 9:30 a.m.

Ms. MIKULSKI

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