Jeff Merkley

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise today to talk about an issue that is extremely important to the Central Oregon economy. For over 40 years, an agreement has been out of reach in the Crooked River Basin in central Oregon on how to allocate water from the Prineville Reservoir to meet the diversity of needs. Over the last few years, Senator Wyden and I have worked with a broad group of water users in the Basin and have come to a solution. Today, Senator Wyden and I are introducing the Crooked River Collaborative Water Security Act of 2013 that will provide a comprehensive framework for improving the management of water in the Crooked River, while creating opportunities for economic growth and new jobs in central Oregon. This is especially good news in central Oregon, a region that has been plagued with unemployment since the beginning of the Great Recession and is in need of new jobs. This legislation is built on a broad coalition of stakeholder support. I want to thank those stakeholders who put aside preconceived notions, came to the negotiating table, and worked out a solution that could achieve such a broad range of support. The key elements of the legislation include meeting the municipal water needs for the city of Prineville long into the future, so the city can continue to attract new businesses like the data centers of Facebook and Apple that have recently moved to the region; providing greater certainty for the agricultural community that depends on the Crooked River for irrigation and is the heart and soul of the Central Oregon economy; allowing water to be released from Bowman Dam to help maintain healthy steelhead, salmon and trout fisheries, which are cherished by local fisherman; allowing the Bowman Dam to be retrofitted to install a hydroelectric turbine and generate low-cost, clean power and create construction jobs; and creating a process to help better plan for dry years, including the impact on fish habitat and fishing, as well as boating and other recreational activities. This bill is a comprehensive solution to a problem that has plagued the region for 40 years and it has the support of numerous groups in the Central Oregon region. The time is now for the Senate to quickly move on this bill and help the Central Oregon economy move forward. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise today to talk about an issue that is extremely important to the Central Oregon economy. For over 40 years, an agreement has been out of reach in the Crooked River Basin in central Oregon on how to allocate water from the Prineville Reservoir to meet the diversity of needs. Over the last few years, Senator Wyden and I have worked with a broad group of water users in the Basin and have come to a solution. Today, Senator Wyden and I are introducing the Crooked River Collaborative Water Security Act of 2013 that will provide a comprehensive framework for improving the management of water in the Crooked River, while creating opportunities for economic growth and new jobs in central Oregon. This is especially good news in central Oregon, a region that has been plagued with unemployment since the beginning of the Great Recession and is in need of new jobs. This legislation is built on a broad coalition of stakeholder support. I want to thank those stakeholders who put aside preconceived notions, came to the negotiating table, and worked out a solution that could achieve such a broad range of support. The key elements of the legislation include meeting the municipal water needs for the city of Prineville long into the future, so the city can continue to attract new businesses like the data centers of Facebook and Apple that have recently moved to the region; providing greater certainty for the agricultural community that depends on the Crooked River for irrigation and is the heart and soul of the Central Oregon economy; allowing water to be released from Bowman Dam to help maintain healthy steelhead, salmon and trout fisheries, which are cherished by local fisherman; allowing the Bowman Dam to be retrofitted to install a hydroelectric turbine and generate low-cost, clean power and create construction jobs; and creating a process to help better plan for dry years, including the impact on fish habitat and fishing, as well as boating and other recreational activities. This bill is a comprehensive solution to a problem that has plagued the region for 40 years and it has the support of numerous groups in the Central Oregon region. The time is now for the Senate to quickly move on this bill and help the Central Oregon economy move forward. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. MERKLEY

Mr. MERKLEY. I thank my colleague from New Mexico for his leadership in trying to restore the Senate so that it will work--work on legislation, work on executive nominations, work on judicial nominations. The country has a low opinion of the function of our Chamber. We certainly do not deserve a high opinion when we are captured by this level of partisan paralysis. I look forward to continuing to work together to help restore this body to a great deliberative body that fulfills its responsibilities under our Constitution. I yield the floor.

Mr. MERKLEY. Mr. President, I rise today along with my colleague from New Mexico to protest the paralysis that has kept the Senate from confirming well-qualified nominees to do their jobs. The U.S. Senate provides the opportunity for all of us to weigh in on our constitutional role of advice and consent, advice and consent regarding nominations to the executive branch and to the judicial branch by the President. Everyone in this body agrees that the Senate should, under this responsibility, serve as a significant check on the quality of Presidential nominations, the quality of nominations or nominees for the court and for executive positions. I certainly share that sentiment, that the Senate should provide this significant check on quality. The Senate should vet nominees. We should question them. We should debate them. And then we should vote on whether to confirm or reject them. What is absolutely clear, however, is that when advice and consent becomes block and destroy, then the Senate process is broken. A minority of one branch of government should never be able to systematically undermine the other two branches of government. Yet that is exactly what we have today. Look at the well-qualified nominees who have been blocked from having an up-or-down vote here in the Senate Chamber just in recent weeks: Mel Watt, nominated to head the Federal Housing Finance Agency; and then nominees to the court: Patricia Millett, Cornelia Pillard, and now Robert Wilkins. These folks are highly qualified, but they were not allowed to have an up-or-down vote. The Senate was not allowed to weigh in on whether they were to be confirmed or not confirmed. This situation in which the Senate minority undermines the executive and judicial branches is unacceptable. It is inconsistent with the concept of coequal branches of government. Our Constitution laid out this vision that the House and the Senate, as the legislative branch, would serve as a coequal branch with the executive branch and the judicial branch. Certainly the ability to check nominations, to vet nominations, is part of that check on the other two branches. But when it is used in this manner, this manner in which you can systematically undermine the function of another branch, then you have taken a position and created a process that is inconsistent with coequal branches. Taken to its extreme--and we are seeing that extreme today--the executive branch is compromised in its ability to function, the judicial branch is compromised in its ability to function. Now we have a special situation that has arisen in which the minority says: We are going to block all nominees to the DC Circuit Court regardless of their qualifications because we want to see it dominated by the nominees from a former President, and we do not let the existing President put his fair share of nominees into those vacancies. The argument has been brought forward--to cover up this effort to ideologically pack the court--that this is simply about the work requirements of that circuit not being high enough to justify additional judges. Yet if that was indeed the case and there was an effort to distinguish it from the ideological bent that is clear here, then that would be something one would say about the future: Let's implement that 8 years down the road or we would have seen it in the past when President Bush was putting his nominees forward. The Republicans would have said: No, we do not want to confirm these nominees because the workload is not heavy enough. But just a few years ago, the argument was very much: Let's confirm these nominees of President Bush. Well, the workload, if anything, has increased. So we cannot allow this process in which a minority says: When our President is in charge we are going to insist on up-or-down votes, but when a President of the other party is in charge, we are not going to allow those votes. Let's be clear: There should not be an ``our President'' and ``their President.'' The President is the President of the entire country, of the blue States and the red States, altogether. The judicial system serves all of us regardless of our party identities. It is our responsibility to make it work. In January we had a promise made on the floor of this Chamber, and that promise from Minority Leader Mitch McConnell was to restore the ``norms and traditions of the Senate'' regarding nominations. What are the norms and traditions of the U.S. Senate regarding nominations? It is an up-or-down vote, with rare exception. But, unfortunately, as we stand here today, we see that January promise has been broken. It was broken a few weeks into this year when a filibuster for the first time in U.S. history was launched on a Defense Secretary nominee. We then saw it in July--another effort of this Chamber to come together and return to the norms and traditions of the Senate. And briefly we did have up-or-down votes on executive branch nominees. But that ended a couple weeks ago when Mel Watt was blocked from that opportunity. So, therefore, the Senate must act. The Senate must act to restore its traditional role of having an up-or-down vote. I, quite frankly, would prefer, in a perfect world, to see this done simply through the type of agreement we have sought a couple of times: up-or-down votes, with rare exception. But it is clear that is not possible because the January promise was broken, because the July promise was broken, and, therefore, we are in the position where we have to do by rule that which cannot be done by simple cooperation. Some have said this has never been done, changing the rules or the application of the rules by a simple majority in the middle of a term. But that is simply not the case. I have in my hand a list of 18 times when this has been done since 1977. I have put up a chart in the Chamber of some of those changes that are quite relevant to this discussion. By a simple majority in 1977: preventing postcloture filibusters; in 1979, by a simple majority: preventing abuse of legislative amendments in appropriations bills; in 1980, preventing filibusters on the motion to proceed to nominations and treaties; in 1987, preventing filibusters via rollcall of the Journal. I have put these up for those instances that pertain to filibusters. But these are only 4 of the 18 times since 1977 that we have changed the application of the rules by a simple majority. So let no one say this is unprecedented. And these 18 changes have come more often in Republican hands than the hands of Democrats in terms of the majority of this body. It is time to end the block-and-destroy strategy being employed by the minority in regard to executive branch nominations and judicial nominations. I am very honored to be a partner in this conversation with the senior Senator from New Mexico, who has been raising concerns about the functionality of the Senate from the day he first set foot in this Chamber. With that, I yield for my colleague.

Mr. MERKLEY. I say to my colleague from New Mexico, I would say that it has been very disturbing to see these very capable women whom you have mentioned not be able to get an up-or-down vote. Indeed, our chair of the Judiciary Committee Senator Leahy held a press conference to make this very concern known, that it seemed as if there is one process for men and a different process for women. I am going to defer to his judgment on that because I have not been part of the Judiciary Committee. I would like to think that in this day and age there is not that sort of gender bias. That is what I would like to think, but I will let Senator Leahy's commentary and his concerns in that area speak for themselves. It is clear, though, that fundamentally the situation is this: These women were highly qualified. They did not get up-or-down votes. I have in my hand a memo from April 25, 2005. It is titled ``The Senate's Power to Make Procedural Rules by Majority Vote.'' It consists of arguments made by the Republican majority in 2005 that nominees should get up-or-down votes for the judiciary. There are many quotes from colleagues who still serve in this body who said in 2005 that regardless of whether they were in the majority or the minority, they felt nominees deserved an up-or-down vote, that the Constitution demanded it, and that the balance of powers between the branches demanded it. I would ask my colleague if he would help us understand what has changed since 2005 when our colleagues across the aisle made the case that nominees deserved up-or-down votes, said it was essential in the constitutional vision, was essential in the proper application of advice and consent. What has changed that makes those arguments disappear now in 2013, 8 years later?

Mr. MERKLEY. I thank the Senator for expanding on that picture of the core elements necessary to exercise our constitutional responsibilities. I keep thinking about how polarization in our society has come to bear on this issue. I believe there are many colleagues across the aisle who believe very much in what they said in 2005, that there should be up-or-down votes; therefore, I have to conclude that they have decided their base demands a permanent campaign against the President and the maximum use of every tool available and that is trumping the appropriate exercise of advice and consent. Perhaps that polarization explains why the promise made by the minority leader in January to return to the norms and traditions of the Senate fell apart within weeks, if not days. Perhaps it explains how the understanding that was reached in July to allow up-or-down votes on executive nominations fell apart a couple of weeks ago. In that situation we have a single path left to us to appropriately exercise advice and consent; that is, to change the rules so they cannot be abused. If the abuse cannot be cured through good-hearted dialog and understanding of our need to honor the constitutional vision, then we need to change the rules. That is why I wholeheartedly support moving toward a simple up-or-down vote. In 2005 our Republican colleagues said: If the Democrats keep blocking up-or-down votes, we are going to change the rules and require a simple majority. The Gang of 14 came out with a compromise, and they said--the compromise was that Democrats would only filibuster under extraordinary circumstances and Republican colleagues would then not change the rules. But actually that worked fine in that the Democrats honored that until President Obama came into office. But that extraordinary circumstance has not continued to be honored after President Obama came into office. In that situation, it does seem as if the only way to make sure we honor the constitutional vision and the balance between the powers is to actually change the rules and say it is an up-or-down vote. I would ask my colleague from New Mexico whether he shares that perspective or perhaps has a different take on it.

Mr. MERKLEY

Mr. MERKLEY. I thank my colleague from Louisiana for her tireless efforts in this regard. We can tell from the commentaries that have just been put forward from the Senator from Massachusetts, the Senator from Mississippi, the Senator from North Dakota, of course our colleague from Louisiana, and now representing Oregon, that these are folks representing blue States and red States and all types of different terrains, and they have the common purpose of addressing the dysfunction of the Biggert-Waters bill that was passed. Just to give a small feeling for this, the Hay family from Eagle Creek, OR, wanted to sell their home. They had a nice young couple with solid financials who wanted to buy it. It was all approved except for the insurance policy. When the couple found out the insurance policy would not be the $500 the current family has been paying but $5,000 a year, the deal fell apart because for every $1,000 you pay in flood insurance, the value of the home drops by $20,000. So not only is the couple who wanted this home unable to buy it because of the home's value dropping, but the family who owned the home, who had equity in the home, and who hoped to take these funds into retirement to be their nest egg, has lost that nest egg due to these outrageous additional costs, these dramatic increases. So the point of sale is one particular problem that has a big impact on the real estate market, but we also have the situation of someone who has a policy lapse. Maybe an individual thinks their mortgage company is paying the policy, the mortgage company thinks the owner is paying it, and it defaults for a few days. When everyone finds out no one has paid the bill, suddenly that family might be going, in that situation, from $500 to $5,000. Or perhaps the mortgage company has never enforced the provision requiring flood insurance and now they have checked their records--and they are checking their records because they are now being charged a significant multithousand-dollar fine if they do not check their records--and they find you should have flood insurance under the law but you don't, so they contact you. Well, now you are facing this unsubsidized rate as a new policy. So we have all of this, and then layered on top of that is the fact that across the Nation the flood zones are being remapped. So folks who were outside of the 100 years and have been outside and have had their homes for 15 years are suddenly getting notified that they are inside the flood zone and required by their mortgage company to get a policy. They may say: But wait, I looked at the map, and only the corner of my property is in the flood zone and my house isn't. Well, the mortgage company says: We are sorry. You have to get this, and you have to then prove you are not in the flood zone. It may cost those homeowners thousands of dollars to get an elevation survey and be able to demonstrate they are outside the flood zone. The homeowner carries this burden of proof. So this is a big challenge, and we should recognize how uncertain and what an art form it is to establish these 100-year zones because a company comes in and does a model, and they say: Well, a 100-year flood will look like this, and they will point out what tributary, what watershed that contributes to the confluence of creeks is going to end up flooding that particular town. Based on their model, the flood zone might look as though it is in the eastern section of the town or the western section of the town, and so on and so forth, that uncertainty where just inches can change whether you are inside a 100-year or outside a 100-year. Some of these areas are very flat. A few inches water rise can cover many additional square miles, and this can have a huge impact on our business districts, because what business wants to reinvest in a business district when now they feel that any improvements they make are going to be in an area where no one else is going to want to buy their company because they are in a situation where they have unaffordable flood insurance. This is why we have come together--Democrats and Republicans, States from the North, South, East, and West coming together--to say we must change this situation which is creating so much unfairness and economic damage. I am delighted, as the chair of the subcommittee, to be fully engaged in partnering this. A special thanks to my colleague, the Senator from Louisiana, who is doing such a fine job of championing this issue.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, Senator Wyden and I wish to recognize Holt International Children's Services during this year's celebration of National Adoption Month. On July 27, 2013 we celebrated the 60th anniversary of the end of the Korean war. By signing the armistice agreement, the border between the Koreas near the 38th Parallel was established. It was in the wake of this armistice that Holt International Children's Services first began its compassionate work, and today continues to be a leader in the field of adoption and child welfare issues. Harry and Bertha Holt of Eugene, OR were of humble means--Harry a lumberjack and a farmer and Bertha a nurse. In 1954, the Holts went to a small high school auditorium to view a film about Amerasian children living in South Korean orphanages. Moved by the film, their faith and a firm belief that all children deserve permanent, loving homes, the Holts began their lifelong mission in 1955 to revolutionize intercountry adoption. At the time, there were no laws allowing children to immigrate to one country from another for the purpose of adoption. Overcoming legal and cultural barriers, Mr. and Mrs. Holt sought families for children orphaned by the Korean war. The Holts persuaded Oregon U.S. Senator Richard Neuberger to introduce legislation titled ``The Relief of Certain Korean War Orphans.'' The legislation became law on August 11, 1955, enabling the Holts to adopt eight Korean war orphans: Joseph Han, Mary Chae, Helen Chan, Paul Kim, Betty Rhee, Robert Chae, Christine Lee and Nathanial Chae. With this act of love and the founding of their agency--Holt International Children's Services--two farmers from rural Oregon became pioneers in international adoption. Today, Holt International strives to uphold Harry and Bertha's vision of finding loving homes for children regardless of race, religion, ethnicity or gender. Holt is committed to finding families for children, not children for families, an important distinction that sets the tone and priorities for Holt. Since the 1955 act, Holt has placed 49,630 children from 31 countries with families in all 50 States. As the oldest intercountry adoption agency, Holt is the only organization that has more than three generations of adult adoptees. Holt continues to play an active and vital role in establishing policy and practice for intercountry adoption. In 1993, Holt adoptees Susan Cox and David Kim were members of the U.S. delegation to the Hague Convention on Intercountry Adoption, an agreement which sets international standards for intercountry adoption that protects the child, the birth family and the adoptive family. Later, in 2008, Holt was a leading advocate in ensuring U.S. ratification of the Hague Convention treaty. Holt believes that adoption is a life long experience and has been at the forefront of developing post adoption services to ensure that adoptees grow and develop to their fullest potential. In addition to these monumental accomplishments, Holt International has become much more than an adoption agency. When considering a child's future, Holt always keeps the child's best interest at the forefront of every decision. For some children adoption is the only option, but Holt realizes that it is not the first option for children without families. Holt believes that it is best if children can stay with their birth family. Over the years, Holt has worked to develop and maintain programs overseas to give orphaned, abandoned and vulnerable children safe and nurturing environments in which to grow and thrive. These overseas programs include initiatives directed at family preservation, nutrition support, child and maternal health, income generation, assisting children with special needs, and shaping and establishing intercountry child welfare systems. Through these initiatives, Holt impacts approximately 30,000 children each year and helps to ensure that children at all stages of need are provided for in an effort to avoid the separation of families. In November, as National Adoption Month is celebrated, it is appropriate to recognize Holt International Children's Services for its diligent efforts and accomplishments in the field of child-welfare and intercountry adoption that have impacted thousands of children in the U.S. and around the world.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise to address an issue that should be of concern to all Americans; that is, the advice and consent function of the Senate regarding nominations. This is the critical check envisioned by our Founders in which the President has the power to nominate for the executive branch positions and for judicial nominees, and the Senate is held responsible to provide a check to make sure there are not outrageous nominees that are placed in positions. That is the advice and consent function which throughout our history has basically been a simple majority function with very rare exceptions. This issue comes up at this moment because 2 weeks ago the minority of this body in the Senate would not allow there to be a vote on whether to confirm Mel Watt. They did that by preventing there being enough votes to close debate. So that blockade was basically put in place without respecting, if you will, the fact that Mel Watt is highly qualified for his position at the Federal Housing Finance Agency, a position he would hold, and giving the entire Senate the ability to weigh in about whether they agreed with that judgment, the judgment of the President that Mel Watt was well qualified. In the same week, this body also blocked an up-or-down vote on Patricia Millett, who was a nominee for the DC Circuit Court. On this occasion, it was not because folks said she was not qualified. They said, instead: We do not want to put any more of President Obama's nominees onto the DC Circuit Court because we want it to be dominated by the judges who were confirmed when President Bush was President. Then, just yesterday, this pattern of blockading up-and-down votes on nominees continued with the minority filibustering, blocking the closing of debate on Cornelia Pillard--again, a highly qualified individual. An argument was not made that there was some exceptional circumstance in her background that left her unprepared for this position. The argument was simply made: We do not want to let the President put any judges on this DC Circuit Court. That is of extreme concern. I must say that it has caused folks who have been scholars in this area to look at it. Norm Ornstein of the American Enterprise Institute basically said: It is ridiculous for the minority to block up-and-down votes, not on the basis that there is something wrong with her qualifications, but just they want to take away the President's ability and constitutional responsibility to nominate individuals to fill vacancies. So this obstruction, exercised over the last almost 5 years now, has done significant damage to the court. It has done significant damage to the executive branch. It prevents qualified nominees to get a vote on this floor so that they can--if they receive a simple majority vote of support--work on behalf of the American people either in their executive branch capacity or addressing the huge backlog in our judicial system. The Senate has the advice and consent role which is a treasured responsibility. It is a weighty responsibility. I think everyone in this body--I think all 100 Senators--could agree that under advice and consent the Senate must exercise a significant check on the quality of Presidential nominees, whether for the courts or for the executive branch. The Senate should vet nominees. The committees that are related to a particular position should explore their background, they should hold a hearing, they should ask tough questions, they should debate the nominees, and then once recommended on the floor of the Senate, we should continue that vetting and debating process. Then, having shared our insights on their background, we need to vote to confirm or reject. It should be on very rare exceptions, when there are extraordinary circumstances that make someone unworthy that they should be blocked from having a final vote. Advice and consent must not become ``block and destroy.'' But advice and consent has become block and destroy. The Senate nomination process is broken. A minority of one branch of government, the Senate, should not be able to systematically undermine the other two branches of government. Yet that is what we see today. President Obama's district court nominees have waited, on average, more than twice as long as President George Bush's nominees to be confirmed by the Senate after being reported out of committee. So we have the challenge of getting up-or-down votes. We also have basically a process of dragging feet in order to make it more difficult to actually get to the votes on these individuals in the first place. For the circuit courts, that comparison is even worse. President Obama's nominees have waited 3\1/2\ times longer than the nominees of his predecessor--3\1/2\ times longer. The Congressional Research Service notes that of the last five Presidents, President Obama is the only one to have his district and circuit court nominees wait, on average, more than 6 months for confirmation. So those delays, in combination with ultimately denying the possibility to hold an up-or-down vote--to hold a final vote on whether to confirm or not confirm-- they constitute a systematic undermining of the function of the other two branches of government. Now, this was not envisioned in any possible way by the creators of our Constitution. They argued there should be three coequal branches. But this outcome, in which the Senate minority seeks to undermine an executive branch nominee, is inconsistent with the constitutional design of coequal branches. They are not coequal if one branch can systematically undermine another. In regard to the courts, in an outcome in which the Senate minority is seeking to ideologically pack the courts by having insisted on up- or-down votes for President Bush's nominees and then blocking up-and- down votes on President Obama's nominees, it politicizes our judicial system. It undermines the integrity of our court system. The Senate has confronted this abuse of advice and consent three times in recent history. In 2005, the Democratic minority was blocking up-and-down votes on a series of President Bush's nominees. They were doing the same thing that we see today. A gang of 14 gathered to debate this, because essentially the Republican majority said: If you do not quit blocking up-or-down votes on the President's nominees, we are going to change the rules and make it a simple majority. Out of the gang of 14 came a deal. The deal was that Democrats would, except under exceptional circumstances, not block the nominee. The counterpoint being that the Republicans would not change the rules. So they got what they wanted, which was up-and-down votes without a rule change. That pledge the Democrats made was honored when subsequent nominees got their up-or-down votes. Now, in January of this year the Democrats, in the reversal of positions, insisted that the Republican minority quit blocking up-or-down votes of President Obama's nominees--kind of a deja vu moment, only the two parties were reversed. Out of that conversation, out of that dialogue in January, came a promise from the Republican minority leader of this body. He promised a return to the norms and traditions of the Senate regarding nominations. What are those norms and traditions? Those norms and traditions are simple up-or-down votes with rare exception. But that promise was barely made and within weeks it was broken, when we saw the first ever filibuster of a Defense Secretary nominee. It just so happened, ironically, that the Republican filibuster--the first time in history of a Defense nominee--was against one of their former colleagues, our Republican colleague Chuck Hagel. So the January promise was broken. This led to increasing tensions until July of this year when Democratic and Republican Members met in the Old Senate Chamber to privately share their concerns. A new deal was hammered out, which is, essentially that executive nominees would get up-or-down votes. That happened for a significant list of nominees. There was an up-or-down vote on Richard Cordray to be the head of the Consumer Financial Protection Bureau; Gina McCarthy to lead the EPA; nominees to fill the National Labor Relations Board; nominees to head Alcohol, Tobacco and Firearms; a nominee to lead the Ex-Im Bank; and, following shortly thereafter, a nominee to be the U.S. Ambassador to the United Nations, Samantha Powers. So that July deal held through a list of nominees until 2 weeks ago. Two weeks ago this body blocked an up-or-down vote on Mel Watt. So we are right back where we were before, right back where we were, the promise made in January shattered, the promise made in July shattered, and the ability of this body to do its advice and consent responsibility shattered. This should be deeply troubling to all. We must restore the ability of the Senate to perform its responsibilities under the Constitution to advise and consent. The Senate with simple up-or-down votes will be a check on bad nominations from the President. I have voted against at least one of the President's nominees. I was prepared to vote against another here just a few weeks ago. The President withdrew that nominee so that vote was not necessary. But that was related to a judgment of the qualifications of the individuals and whether they were a good fit for a particular position. It was not about trying to systematically undermine the executive branch and keep them from operating. That is essentially why we have up-or-down votes; it is a check on unqualified individuals or a poor fit for a particular position. So in this area, both in the Senate's failure to do its job vis-a-vis judicial nominees and to do its job vis-a-vis executive nominees, we have created unequal branches of government. It is time to fix the broken Senate in regard to nominations. It is time to restore the traditional role of the Senate in evaluating nominations so that with nominees who are confirmed, they can go to work in the courts, can go to work in the executive branch to do the work that the citizens of the United States of America expect them to do on behalf of our Nation. I yield the floor and suggest the absence of a quorum.

Mr. MERKLEY. Mr. President, I ask unanimous consent to speak for up to 10 minutes as in morning business.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent for my intern, Bruce Lehman, to have the privileges of the floor for the balance of the day.

Mr. MERKLEY

Mr. MERKLEY. I ask unanimous consent for 1 more minute.

Mr. MERKLEY. There are two staff members on my team who have labored on this whom I wish to personally acknowledge: Scott Rosenthal, who carried this organizational responsibility for a number of years, and my legislative director Jeremiah Bowman, who provided over these last few months this critical organizing stage. I look forward to this vote for liberty, this vote for freedom, this vote for opportunity, and this vote for a fairer and just America.

Mr. MERKLEY. I ask for the yeas and nays.

Mr. MERKLEY. Mr. President, I ask unanimous consent for 5 minutes to speak to this bill.

Mr. MERKLEY. I yield the floor.

Mr. MERKLEY. Mr. President, I ask unanimous consent to have a short colloquy with the distinguished Senator from Arizona and the Senator from Wisconsin.

Mr. MERKLEY. Mr. President, I appreciate so much the comments of my colleague from Arizona on the challenges inherent in getting our budget under control. I particularly appreciated over the last few days the conversation we have had about the Employment Non-Discrimination Act. I would like to say that the Senator from Arizona has brought particular value in expressing concerns about how we make sure businesses have the guidance they will need to implement this act effectively, particularly as this act embraces an area--that is, transgender discrimination--that was not part of the act considered in the House of Representatives.

Mr. MERKLEY. Mr. President, I look forward to that conversation as well. The State of Wisconsin was one of the first or maybe the first in the Nation to bring an end to workplace discrimination. Oregon has a fully inclusive bill that has worked very well. We have worked out a great partnership with the businesses of Oregon in making sure there is satisfactory guidance for them. I look forward to bringing that experience into this conversation about the concerns of the Senator from Arizona. I echo the appreciation for the thoughtful dialog we have had over the past few days and look forward to future dialog as we continue to try to make this bill ending discrimination in the workplace work well for businesses across the Nation and certainly for the millions of LGBT Americans who will have the opportunity to break these chains of discrimination and more fully participate in our national economic life.

Mr. MERKLEY. Mr. President, I thank my colleague who preceded me who has summarized the bipartisan collaboration to bring this bill to this point that we will be voting on in just a few minutes. No one has done more than she to advance this conversation over many years. I thank the Senator from Maine for those incredible efforts on behalf of ending discrimination and advancing liberty and opportunity. Today the Senate will vote to break the chains of discrimination that hold back millions of LGBT Americans from the full promise of liberty-- liberty, that freedom to participate fully in our society, in the public square to the voting booth, to the school, to the workplace; liberty, that quality deeply rooted in our national journey and embedded in our Declaration of Independence `` . . . that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness;'' liberty, the declared mission of our Nation in the preamble to the Constitution: We, the people, in order to form a more perfect union and secure the blessings of liberty to ourselves and our posterity, do ordain and establish a Constitution of the United States of America. But the march to liberty has been long, with numerous battles along the way: the fight to end slavery that President Lincoln figured so prominently in, the fight to end racial discrimination, the fight to end gender discrimination, the fight to end discrimination against our seniors, and the fight that continues today with this bill to end discrimination based on sexual orientation and gender identity. Discrimination diminishes the potential of the individual and it diminishes the potential of our Nation. Senator Ted Kennedy said this succinctly when he helped introduce in 2009 a predecessor of the bill we will be voting on today. Senator Ted Kennedy said: ``The promise of America will never be fulfilled as long as justice is denied to even one among us.'' He spoke these words just 20 days before he passed away. It is appropriate to quote Ted Kennedy because he led the fight for this bill since its first introduction in 1994. I think he would be tremendously pleased with the bipartisan vote of affirmation against discrimination which we will soon be taking. Along the course of the two decades many have helped on this bill, whose footsteps no longer echo in these Halls, and to all of those champions of liberty who have participated in this process I say thank you. There are many champions of liberty still in this body who have been fighting toward this moment, and I wish to make sure I acknowledge them: Senator Harkin, who championed many elements, including ending discrimination against those with disabilities and who steered this bill through his committee; Senator Harry Reid and the leadership team who worked together to enable this moment in the calendar to have this debate and to advocate this bill; Senator Tammy Baldwin, who brought in energy from the House and the powerful voice of her personal experience to bear on this debate; Senator Collins, who just spoke, who has done so much for so long to make this happen, and in the first 2 years of 2009 and 2010 was the lead cosponsor. She passed the baton to Senator Kirk, who has carried that baton forward in the most admirable way. Senators Murkowski and Hatch joined to help this bill come out of committee and helped create the momentum; Senators Portman, Ayotte, Heller, Toomey, and Hatch engaged to help make sure the religious exemption which we developed with the right hand is not taken away with the left hand, to reinforce the integrity of the title VII religious exemption; Senator Flake, who brought forward ideas on how to make sure the guidance would be there to help businesses understand how to implement this act. There are a lot of coalition groups that have done a tremendous amount of work. Well done. Every conversation such as this takes advocates inside the Chamber and advocates outside the Chamber but a particular acknowledgement of the Human Rights Campaign.

Mr. MERKLEY

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

Mr. MERKLEY. I want to take the opportunity to say a word or two while our colleagues from Alaska and Maine are here. These two colleagues, representing the far northwest and far northeast of the United States, have brought so much wisdom and so much determination to this topic of treating all citizens with respect, providing all citizens with a full measure of liberty to be deeply engaged in every aspect of American life. That certainly includes the workplace, and that topic, discrimination in the workplace, is before us today. Senator Collins was the chief Republican sponsor for the first 2 years I was in the Senate. She passed on the baton to Senator Kirk but did not stop championing this bill, and late last night was working and has been holding meetings for the many days and weeks that have led up to this moment--and over the years that have led us to this moment. I say thank you very much to the senior Senator from Maine for her engagement and advocacy of fairness for all Americans. My colleague from Alaska, it was a pleasure to exchange voice mails as we prepared for the Monday night, knowing that she would not be able to be here for that vote but was sending good wishes. We were uncertain whether we would have 60 votes that night or whether we would have the floor open until midnight or whether we would be voting the next day in order to have her support be the support that put us over the top. But long before that vote occurred she too was talking to her colleagues, noting that freedom for American citizens means freedom to pursue your mission in life, your meaning in life through your work. Discrimination in the workplace diminishes the individual and diminishes the full potential of our Nation as well. We are now all hoping that we will be able to have final votes on amendments and votes to close debate and to have a final vote sometime tomorrow. That work is not yet done. The path before us may still have unexpected challenges to be overcome. But as we overcome them and approach that final vote, it will be in large measure because of the terrific work of these two colleagues. I yield.

Mr. MERKLEY. Mr. President, I so much appreciate the comments of my colleague from Delaware, first speaking to the importance of rebuilding our manufacturing sector, of creating living-wage jobs and how important that is to building the middle class and providing the foundation for families to thrive, and then speaking to the core issue we are debating today, that of ending significant discrimination against millions of American citizens. His words were well spoken, I say to the Senator from Delaware, and I thank him for his advocacy that will make this Nation work better for so many of our fellow citizens. This issue of freedom from discrimination is a core issue of freedom. It is a core issue of liberty. It goes right to the heart of the founding of this country. Our Founders were often chafing under the heavy hand from the land they came from across the ocean, and they wanted to be able to forge their own world where they would be able to participate fully in society. So liberty and freedom became right at the heart of our founding documents. Our Declaration of Independence says in its second paragraph: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness. That concept of liberty was echoed when we went to our U.S. Constitution. It started out saying, as Americans are well aware: We, the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. We, the people, sought in that year to establish a more perfect union, and we continue in our pursuit of a more perfect union--one with more complete blessings of liberty. What, indeed, is liberty? That opportunity to participate fully in our society. This was well captured by President Lyndon Baines Johnson. He was speaking in 1965 to Howard University students at their commencement, and President Johnson said: Freedom is the right to share fully and equally in American society; to vote, to hold a job, to enter a public place, to go to school. President Johnson continued: It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others. I think President Johnson captured well what freedom and liberty are all about, as have many of our major public citizens over time as they sought to examine this core premise of liberty and freedom and what it meant in this Nation, what it meant to create a more perfect union in this regard. Eleanor Roosevelt spent a lot of time talking about human rights. She said: Where, after all, do universal human rights begin? In small places, close to home, so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person, the neighborhood he lives in, the school or college he attends, the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Indeed, today we are very much talking about the factory, farm, and office Eleanor Roosevelt spoke about, where, if rights do not have meaning there, they have little meaning anywhere. It has been long recognized that the opportunity to thrive for the individual is so fundamental to this notion of liberty and freedom, and it is also a powerful force for the good of our Nation as a whole. This is well captured by Theodore Roosevelt. He said: Practical equality of opportunity for all citizens, when we achieve it, has two great results. First, every man will have a fair chance to make of himself all that in him lies, to reach the highest point to which his capacities, unassisted by special privilege of his own, unhampered by the special privilege of others, can carry him; to get for himself and his family substantially what he has earned. Theodore Roosevelt continued: Second, equality of opportunity means that the commonwealth will get from every citizen the highest service of which he is capable. No man who carries the burden of the special privileges of another can give to the commonwealth that service to which it is fairly entitled. Theodore Roosevelt was speaking in the masculine, but he was talking about all citizens--men and women--equality of opportunity for the individual and for the benefit of society. Senator Ted Kennedy summarized this concept much more succinctly. He did so on August 5, 2009, when the bill that is before this body was introduced in that year, the 2009 version. He said: The promise of America will never be fulfilled as long as justice is denied to even one among us. So, again, the success of the individual in gaining full access to liberty and freedom, full opportunity to participate in society, builds a stronger community, a stronger State, and a stronger Nation. The bill we have before us today is a simple concept: That an individual can pursue that place on the farm or in the factory or in the office without discrimination; that the LGBT citizen has full opportunity to fulfill their potential in the workplace. Religious groups from across America have weighed in to say how important and valuable that is. Here is a sign-on letter--a letter that is signed by approximately 60 religious groups across America. It is addressed to each of us in this Chamber. Dear Senator: On behalf of our organizations, representing a diverse group of faith traditions and religious beliefs, we urge you to support the Employment Non-Discrimination Act. As a nation, we cannot tolerate arbitrary discrimination against millions of Americans just because of who they are. Lesbian, gay, bisexual, and transgender people should be able to earn a living, provide for their families, and contribute to our society without fear that who they are or who they love could cost them a job. ENDA is a measured, commonsense solution that will ensure workers are judged on their merits, not on their personal characteristics like sexual orientation or gender identity. We call on you to pass this important legislation without delay. This letter from these roughly 60 religious organizations continues: Many of our religious texts speak to the important and sacred nature of work . . . and demand in the strongest possible terms the protection of all workers as a matter of justice. Our faith leaders and congregations grapple with the difficulties of lost jobs every day, particularly in these difficult economic times. It is indefensible that, while sharing every American's concerns about the health of our economy, LGBT workers must also fear for their job security for reasons completely unrelated to their job performance. Our faith traditions, the letter continues, hold different and sometimes evolving beliefs about the nature of human sexuality and marriage as well as gender identity and gender expression, but we can all agree on the fundamental premise that every human being is entitled to be treated with dignity and respect in the workplace. In addition, any claims that ENDA harms religious liberty are misplaced. ENDA broadly exempts from its scope houses of worship as well as religiously affiliated organizations. This exemption--which covers the same religious organizations already exempted from the religious discrimination provisions of Title VII of the Civil Rights Act of 1964--should ensure that religious freedom concerns don't hinder the passage of this critical legislation. Then this letter concludes: We urge Congress to swiftly pass the Employment Non- Discrimination Act so that lesbian, gay, bisexual, and transgender Americans have an equal opportunity to earn a living and provide for themselves and their families. I ask unanimous consent to have printed in the Record the sign-on list associated with this letter.

Mr. MERKLEY. Thank you, Mr. President. This is a list that Americans will well be familiar with, including Methodist groups, Lutheran groups, Jewish groups, and so on and so forth, from the spectrum of Protestant religions, Christian religions, and other religions. It is powerful and helpful that they have written to share their perspectives, and I thank them for doing so. Business coalitions have also weighed in. I have here a letter from the Business Coalition for Workplace Fairness. Their letter is much shorter. It is signed by approximately 120 companies. I will read it for my colleagues now. It says: The majority of United States businesses have already started addressing workplace fairness for lesbian, gay, bisexual, and transgender employees. But we need a federal standard that treats all employees the same way. The Business Coalition for Workplace Fairness is a group of leading U.S. employers that support the Employment Non- Discrimination Act, a federal bill that would provide the same basic protections that are already afforded to workers across the country. Lesbian, gay, bisexual, and transgender employees are not protected under federal law from being fired, refused work or otherwise discriminated against. ENDA would do just that. These are companies that include American Eagle Outfitters to Morgan Stanley, Charles Schwab to Nike, General Mills to Xerox, and Hilton Worldwide to Apple, and so on and so forth. Speaking of Apple, it might be interesting to hear the perspectives of the CEO of Apple, Tim Cook. He wrote an op-ed in the Wall Street Journal, and here is what he had to say. This was published, by the way, on November 3, just a few days ago. He said: Long before I started work as the CEO of Apple, I became aware of a fundamental truth: People are much more willing to give of themselves when they feel that their selves are being fully recognized and embraced. At Apple, we try to make sure people understand that they don't have to check their identity at the door. We're committed to creating a safe and welcoming workplace for all employees, regardless of their race, gender, nationality or sexual orientation. As we see it, embracing people's individuality is a matter of basic human dignity and civil rights. Tim Cook continues: It also turns out to be great for the creativity that drives our business. We've found that when people feel valued for who they are, they have the comfort and confidence to do the best work of their lives. Apple's antidiscrimination policy goes beyond the legal protections U.S. workers currently enjoy under federal law, most notably because we prohibit discrimination against Apple's gay, lesbian, bisexual and transgender employees. A bill now before the U.S. Senate-- Of course, this bill we are currently debating-- would update those employment laws, at long last, to protect workers against discrimination based on sexual orientation and gender identity. We urge Senators to support the Employment Nondiscrimination Act, and we challenge the House of Representatives to bring it to the floor for a vote. Protections that promote equality and diversity should not be conditional on someone's sexual orientation. For too long, too many people have had to hide that part of their identity in the workplace. Those who have suffered discrimination have paid the greatest price for this lack of legal protection. But ultimately we all pay a price. If our coworkers cannot be themselves in the workplace, they certainly cannot be their best selves. When that happens, we undermine people's potential and deny ourselves and our society the full benefits of those individuals' talents. So long as the law remains silent on the workplace rights of gay and lesbian Americans, we as a nation are effectively consenting to discrimination against them. Congress should seize the opportunity to strike a blow against such intolerance by approving the Employment Nondiscrimination Act. Again, that is a letter from Tim Cook, the CEO of Apple, published in the Wall Street Journal. So we see this long arch in pursuit of a vision of liberty and freedom, from our early settlers of North America, to the Declaration of Independence, to the opening words of our U.S. Constitution, to our leaders through a scope of time who recognized the power of liberty in fulfilling the potential of the individual and the potential of the Nation, to our current religious leaders and our current business leaders. It is time we take another bold stride in this long journey toward freedom and liberty for all Americans. In that regard, I urge all of my colleagues to support this legislation before us. It will make a difference in millions of lives, and it will make a difference in the strength and character of our Nation. Thank you.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise to ask unanimous consent that my intern, Chloe Becker, who is shadowing me today, be accorded full privileges of the floor for the balance of the day.