Pat Toomey

Mr. TOOMEY

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

Mr. TOOMEY. Mr. President, I rise to address this situation we find ourselves in on the unemployment bill. I have to say that this most recent episode in which the majority leader refuses to permit an open process, refuses to allow debate, refuses to allow the kinds of amendments Republicans would like to offer to improve this bill is very disturbing and is now part of a very well-established trend. It is actually shocking to me that over the last 6 months, since July of last year, through today, this body has voted on a grand total of four Republican amendments--four recorded votes on Republican amendments in 6 months. Under every previous majority leader, under every previous majority the Senate didn't work this way. It would be routine to have four votes in a morning before we broke for lunch. We have had four votes on our ideas that have been permitted in 6 months. So we are systemically being shut out of the process. What is particularly maddening about this is that my colleagues on the other side of the aisle know full well that the votes are there to pass an extension of unemployment insurance. They know it. If they would allow an open amendment process, we would have a few amendments, we would have a debate, and we would have some votes. In the course of an afternoon, maybe two, we would have finished up last week and we would have passed an extension of unemployment benefits. Evidently that is not the goal of my colleagues on the other side of the aisle. They insisted on making sure we could not engage in this debate, offer the amendments, and do this in a way consistent with what the American people want us to do, which is move forward in the most sensible way possible. I have an example this morning of the kind of very modest reform we would like. As for myself, I think that we should extend unemployment benefits for certain Americans who are in the really tough circumstances in which they find themselves provided that the cost of doing so is properly offset with a legitimate offset so we don't simply add still more to our excessive deficit and debt; that we have some modest reforms; that we begin the process of fixing a program that doesn't work. If this is working, then why are there so many Americans who are unemployed for such long periods of time? Clearly, this program is not working. Let me give one example of an amendment I think most Pennsylvanians think is common sense. It is an amendment Senator Coburn offered, and it would simply end Federal unemployment benefits for people who have an income of over $1 million a year. My guess is that most Pennsylvanians are shocked to discover that we extend unemployment benefits to millionaires. And I am not talking about a net worth of $1 million, someone who maybe has a farm that is worth $1 million on paper but they might have no income. No. I am talking about people who actually have earned income of over $1 million and then they stop working and start collecting unemployment benefits. I think most people think that is ridiculous. It is not as isolated as we may think. In 2011 there were over 3,200 households that reported income of over $1 million, and yet they were paid $30 million in unemployment benefits. In fact, there were over 100 households that had income of over $5 million. And taxpayers are paying them unemployment benefits? This doesn't make sense, and it doesn't make sense to Members of this body. In April of 2011 the Senate had a vote on the substance of this very amendment--ending unemployment benefits for millionaires and multimillionaires--and the vote was 100 to 0 in favor of making this modest reform to this program. Now, if we did actually enact this reform, it would save about $300 million over 10 years, which could go to paying for benefits for the people who actually need extended unemployment insurance. Of all of the Members of the Senate who are here today and were here at the time of this vote in 2011--that is the vast majority--everyone agreed. There is no dissent on this. There are bipartisan cosponsors of this amendment, Democratic and Republican alike, who recognize this is just common sense. So despite the fact this is not controversial, that it is germane and relevant, that it is a modest reform that makes sense and would save money and would free resources to pay unemployment benefits for the people who truly need it, despite all of those facts, we are blocked. We are not allowed to offer this amendment on the Senate floor. We attempted it yesterday. The minority leader, the senior Senator from Kentucky, asked unanimous consent to offer this amendment. That consent was denied. So then he moved to table or to eliminate, if you will, the amendments the majority leader uses to block our opportunities to offer our own, his blocking amendments, and the majority party defeated that attempt to do away with those blocking amendments. As we sit here this morning, the majority leader continues to block our opportunity to offer any amendments, even a modest, commonsense amendment with bipartisan support that passed this body 100 to 0. I am going to make one more attempt to offer this amendment because I cannot for the life of me understand why we cannot have a vote on this little bit of common sense. I rise to offer the Coburn amendment, No. 2606, to S. 1845.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, I thank my colleague Senator Casey for organizing this brief tribute that is so much deserved by the servicemembers we are going to be acknowledging in a few minutes. I would like to begin by extending my deepest condolences to the families, friends, loved ones of these true Pennsylvania heroes and the lives that they led and the cause for which they died. Those men represent all that is great about this great country. Some enlisted right after graduating from high school. During those very tough and grueling days and weeks in basic training, I suspect they never heard of the places in Afghanistan where they would make this sacrifice. These Pennsylvanians, of course, join a long list of soldiers, sailors, airmen, and Coast Guard members who have given their lives for this country, to include those who gave their lives in World War II, the Korean war, the Vietnam war, of course the ongoing war against violent radical Islamists all around the world. It is no accident that Pennsylvania has suffered so heavily in this conflict, as it has in every other conflict in our Nation's history. I think it is because in the towns across Pennsylvania, towns and cities such as Tafford and Mohnton, there are certain values that are deeply rooted in those communities: importance of family, importance of faith, the importance of serving this Nation. There is a deep conviction that freedom is worth defending, and a belief that a cause worth fighting for is not just someone else's responsibility. These are the values that have helped shape these service members, their families, their churches, their houses of worship, and their communities. These values are exemplified in the lives of our fallen who will forever be honored by our great Commonwealth for their service to this country. I will begin reading the names of the men who made the supreme sacrifice for freedom last year in this conflict, and Senator Casey will complete the list: CWO Matthew Paul Ruffner, U.S. Army, Tafford; CWO Jarett Michael Yoder, U.S. Army, Mohnton; SSG Marek Soja, U.S. Army, Philadelphia. I yield the floor.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, I rise to speak on the topic of the nomination of Cornelia Pillard to the DC Circuit. Before I go to that specific topic, I wish to address a broader topic, which is how we got in these circumstances in the first place and why we are here tonight, why we are having this discussion, and how this nuclear option, as it has been described, has come about. Most immediately was November 21, 2013, just a few weeks ago, when the majority party in the Senate unilaterally decided to break the rules of the Senate, violate the rules and rewrite the rules themselves. Despite the fact the rules clearly say it takes a two- thirds majority of the Senate to do that, they decided to disregard that and change the rules themselves. So they did that on November 21, 2013. What they specifically did, the specific rule change they imposed unilaterally on the Senate, was to completely eliminate the opportunity for the minority party to have any ability to be a check or a balance to the process of selecting and confirming the nominees of a given President to the judiciary of the United States of America, the Federal judiciary, or to the executive branch. It is a little bit sweeping, but that is exactly what has been done. This is contrary to the entire history of the Republic, where this has never been done before, and it applies to lifetime appointees. Of course, Federal judges, as we all know, once they are confirmed, they hold that office until they decide they are done--at whatever age that might be. It is a lifetime appointment. Unless they commit an impeachable offense, there is nothing anybody can do about it. One of the things that is interesting about this decision by our Democratic colleagues is they decided to eliminate the rights the minority party has had in the Senate for centuries. They decided to do that despite the fact that 20 of them warned vehemently against engaging in this very activity just a few years ago. As a matter of fact, none other than the Senate majority leader who personally led this effort, Senator Reid, said in 2009: The right to extend the debate is never more important than when one party controls the Congress and the White House. In these cases, a filibuster serves as a check on power and preserves our limited government. In 2009 the senior Senator from New York said: The checks and balances which have been at the core of this Republic will be evaporated by the nuclear option. The checks and balances say that if you get 51 percent of the vote, you don't get your way 100 percent of the time. That is what our friends, the leadership of the majority party, the Democratic party, said very recently. So you have to ask yourself, why would they do a complete reversal? Why would they do a 180-degree switch? Why would they go from a position of absolute vehement opposition to the nuclear option that denies the minority party any say whatsoever in the confirmation of Federal nominees--why would they go from that to where they were just a couple weeks ago when they executed their plan and unilaterally broke the rules so they could change the rules to inflict that very policy on the current minority party, the Republican Party? We can look at what the majority leader said at the time. One of the things he said on November 21, 2013, the day on which the majority leader made this change: There has been unbelievable, unprecedented obstruction. For the first time in the history of our Republic, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges. That is what Senator Reid has asserted as his justification for this unilateral, unprecedented deprivation of minority party rights. In fact, just this evening Senator Reid was back on the Senate floor, and he used the word ``obstructionism'' about a dozen times. So I think it is worth considering what has actually happened. What does the record show? Let's go back to March 2011 because that is an interesting moment in this discussion about how and whether and when and under what circumstances to confirm nominees. In March 2011, Republicans decided that, you know what, it probably would be a good idea for the President--President Obama at this time, obviously--to be able to get a very large number of nominees appointed and confirmed without even having to go through the Senate process. The legislation is called the Presidential Appointment Efficiency and Streamlining Act of 2011. Under this act, thousands of appointees from the executive branch were simply no longer subject to Senate confirmation. So what Republicans did in March 2011--far from obstructing anything--was to say: Mr. President, here is a huge category of Federal nominees, and we won't even require a vote. We won't even require Senate consideration. You get these, all of them. You nominate them, they are done, period. Does that sound like obstruction? Not to me. It was passed by a Republican-controlled House, supported by Republicans in the Senate, and signed into law. So today the law of the land, as a result of Republican cooperation, is that this President enjoys a luxury no previous President has had-- this huge category of nominees who are solely, exclusively at his discretion. It doesn't matter if a single Senator or every Senator strongly objects. It doesn't matter. It is totally irrelevant. So I think we ought to consider that legislation in the context of this discussion. But let's take a look at those nominees who remain subject to and who prior to this legislation have been subject to Senate confirmation. One category is Federal judges. We have many district courts around the country. So far, the President has nominated 174 candidates to Federal district courts around the country. Of the 174 the President has nominated, I wonder if you could guess how many have been confirmed. I will tell you how many have been confirmed--174. There have been 174 confirmed and zero rejected. At the circuit court level, prior to the recent episode, the President had nominated 41 candidates to the circuit court. Of the 41, 39 had been confirmed. So the total of judicial nominees President Obama has sent to us in the Senate is 217, and 215 have been confirmed and 2 have been objected to. By my math, that is something like 1 percent objected to, 99 percent confirmed. This doesn't strike me as unreasonable obstruction. But judges aren't the whole story. There are also the nonjudicial nominees, and we ought to consider those as well. So far, at least as of when we compiled this data, the President has nominated 1,488 individuals to various Federal spots throughout the executive branch-- the agencies, his departments, and so on. Of the 1,488, 1,486 have been confirmed and 2 have been blocked by Republicans. That would include 100 percent of the President's Cabinet nominees and 100 percent of virtually every other category but not every last one. If we add those together, the total of the President's nominees, both judicial and nonjudicial, 1,707 confirmed, 4 rejected. So that works out to something like the Senate has confirmed with Republican support--because prior to the rule change, it couldn't happen without Republican support--the Senate has confirmed 99.9 percent of President Obama's nominees to judgeships and to nonjudgeships. You have to ask yourself, could that possibly constitute outrageous obstruction, unprecedented obstruction, as Senator Reid has said, preventing President Obama from appointing his executive team or confirming judges? How can this possibly be? The majority leader came down to the Senate floor on the date on which he decided to unilaterally change the rules by breaking the rules and he cited as an example the outrageous case of Chuck Hagel, who had served in this body. Chuck Hagel. Whatever became of Chuck Hagel? Oh, that is right, he was confirmed to be Secretary of Defense, as has virtually every single other nominee the President has proposed. The leader seemed to think it was completely unreasonable that Republican Senators would demand some information from former-Senator Hagel along the way. It seems to me the fact that he is a former Senator should not change his obligation to provide the information the Senate requests, and when he provided that information, he was confirmed easily. So it seems pretty clear to me, it seems pretty indisputable that this really never was about obstructionism. A 99.9-percent confirmation rate? It just can't be about obstruction. It is clearly not. So we have to ask ourselves, if it is not the case that Republicans have been obstructing the President's team--and it is clearly not--then why did the majority in this body decide to unilaterally change the rules and deny the minority the opportunity to have any say whatsoever on the confirmation process? Fortunately, some of our colleagues on the other side have explained this for us. They have told us why they made this change. But let me put it in a little bit of context. We are in a situation here where we have a divided government. It is true that the American people elected President Obama to a second term, and elections have consequences. But on the very same day, the American people reelected Republicans to be the majority party in the House. And all elections have consequences, not just Presidential elections. So the reality is that the very liberal agenda President Obama would like to pursue is very difficult. He can't get most of the liberal things he wants to do, whether it is some kind of cap and trade or card check or his war on coal. This is well outside of the mainstream of where the American public is, and it is not where the consensus is in the House of Representatives. So his legislative agenda isn't going anywhere in the House. The administration understands that very well, the President understands that very well, and so do the members of the majority party here in the Senate. What do you do if you have an agenda that is out of step with the American people and can't pass in a duly-elected House of Representatives? Well, some people think the thing to do is do an end run around the legislative body, bypass the legislation, and use an undemocratic--I would argue unconstitutional--process and have unelected, unaccountable bureaucrats impose by fiat and through regulation that which you cannot achieve through legislation. Of course, that is completely inconsistent with our Constitution, with the way our Federal Government is intended to operate, and with the principle of the separation of powers. It would require pursuing an agenda that is out of step with the American people and without the consent of Congress, which, of course, is supposed to be a partner with any executive branch, with any President in pursuing any agenda. Of course, our Founders foresaw the danger of an Executive who would try this sort of thing and would do an end run around the legislature and try to use the enormous power at the disposal of the Executive, who has massive staff and huge agencies and all kinds of resources, and understood that it is quite possible that you could have an Executive who would try, for instance, selective enforcement of laws, maybe unilateral suspension of laws, as we have seen this administration do, writing rules and regulations that are inconsistent with the laws. These are all behaviors we could anticipate. Our Founders did. They did. They anticipated this could happen. So what they did is they built a system that would have some checks and balances, that would provide some limitations. Among the other ways they did it--there were many ways this was done, but one of them was the separation of powers and specifically the creation of a judiciary which would be a referee on whether, for instance, a given agency, a given regulator, was in fact complying with the laws or whether they had gone rogue, whether they had gone overboard, whether they were overreaching, whether they were pursuing some agenda for which they did not have authority. These courts play an absolutely vital and I would say completely indispensable role in giving individual Americans their last hope in seeking to preserve their liberty against an unfair, arbitrary, and even unconstitutional executive overreach. That is what the courts do. As it happens, there is one particular court that plays a disproportionate role in this process of adjudicating and officiating over Federal regulations. It just so happens that by virtue of its location, a big majority of cases in which an American citizen challenges a regulation because that citizen believes this is a regulation that is unfair, unconstitutional, illegal or otherwise not consistent with our laws--the venue where this ends up finally getting adjudicated is very often the DC Circuit Court of Appeals. This has become a bit of a problem for the administration and some of our friends in the Senate because the DC Circuit Court of Appeals has become a bit of an obstacle to some of the ambitions they would like to impose. One example, for instance, is last year the DC Circuit Court of Appeals struck down for the second time in 4 years the EPA's regulations on cross-State air pollution. This is a complicated story. We do not have to get into all the details but, bottom line, these are regulations that would among other things have a devastating impact on States such as Pennsylvania that have a big coal industry and that have a big utility industry that uses coal to fire generators. The court found that the EPA had gone beyond its legal authority. The statute clearly says what the EPA may do and may not do. They were going beyond what they are permitted to do and the DC Circuit Court of Appeals said so. That is not the only case in which the DC Circuit Court of Appeals has ruled in ways that are problematic to some of our friends here. Another was a decision they made regarding recess appointments. You may remember this. A while back, the President made a very extraordinary decision. The President decided for the first time in the history of the Republic that it was up to him to determine when the Senate was in recess and when it was not; that was his unilateral decision to make. No other President ever took it upon himself to decide it was his power to determine when a different branch of government was in recess, but this President did. He said that is his decision. So I guess by his logic he could decide when we are out on lunch, that is a recess; out on the weekend, that is a recess; that is up to him by his standard. So he created an opportunity for himself to make appointments that he knew would not be confirmed in the Senate or were unlikely to be confirmed. There was bipartisan, in some cases, concern about some of these folks. He went ahead and made the appointments. The DC Circuit Court of Appeals said actually, no, the Constitution is pretty clear. You do not have that authority. These are just a couple of examples where a nonpartisan, completely competent, and very highly respected appellate court made decisions about Executive behavior. This has not sat so well with some of our colleagues. Why do I bring this all up? Because this is what this is truly all about. This is not about Republican obstructionism. What this is about is our Democratic friends want to pursue a very liberal agenda. They cannot do it through legislation so they intend to do it through regulation. As they overreach and go beyond the legal authority, which they have already done and intend to continue to do, the victims, American citizens who are victims of this overreach, are going to challenge these rules and regulations in court. When they do, they are going to end up in the DC Circuit Court of Appeals. Some of our friends want to do whatever it takes to make sure they can win those decisions. Those are not just my words. The senior Senator from New York complained about the DC Circuit. He was on record claiming the DC Circuit ``overturned the EPA's ability to regulate existing coal plants.'' OK. He further went on to say, ``The SEC cannot pass rulings unless they do what is called a cost-benefit analysis.'' That was another complaint the senior Senator from New York made about the DC Circuit. So he told a group of supporters that in order to reverse this, Democrats will ``fill up the DC Circuit one way or another.'' I think this is about as clear as it could be. There are people who do not like the decisions coming out of the court and so their intention is to pack the court with people who share their political views and will therefore sustain decisions about the advancement of their liberal agenda. But it was not only the senior Senator from New York who made these comments. The majority leader himself explained this as well. Referring to the DC Circuit Court he said: They're the ones that said . . . the president can't have recess appointments. . . . They've done a lot of bad things, so we're focusing a very intently on the D.C. Circuit. We need at least one more. There's three vacancies, we need at least one more and that will switch the majority. Could there be a more direct, straightforward statement about what their real intent is? Their intent is to pack the court with partisan people who will give them the decisions they need so they can advance the agenda they want when it is blocked through the ordinary legal and constitutional legislative process. That is what is going on here. That is why we are here tonight. That is what is taking place. When Republicans decided that we do not think it is a good idea to manipulate courts this way, to populate them with partisans, to try court stacking for the purpose of advancing an agenda, that is when our Democratic friends decided to go nuclear. The pity of this is our Founders had enormous foresight. They were absolutely brilliant. They constructed an incredible document, a series of documents that have guided this Republic for centuries now. They anticipated a lot. I do not think they anticipated that the leader of the majority party in the Senate would just turn it over to the control of the executive branch and make this institution just a rubberstamp for what the President wants to do. But that is where we are. What is the practical consequence of all this? Why is it that this is such a terrible idea? Let me touch on a few of the reasons. There are a lot of reasons I think this is a disastrous policy, but let me touch on a few of them. One result of this is undoubtedly a further polarization, in fact a radicalization of the Federal Government. The second is that as a direct result of this unilateral decision and the ability now of our Democratic friends to simply steamroll nominees through without any consideration by the minority party, we will have to expect fluctuations, volatility in administrative and regulatory rulings. Then last and probably most disturbingly, I think there is a real danger that a justice system that has been the envy of the world and is recognized for its impartial and nonpartisan integrity may very well be increasingly viewed as a partisan and biased one. Let me explain this a little bit, the idea that we have a more radicalized Federal Government. For 200 years, a President has always known that in order to nominate and to get confirmed one of his nominees he would need broad support in the Senate. It would not fly if he selected someone who was only appealing to a few or even a very small majority. So what does this do? That forces any President, whether it is a Republican or a Democrat, to nominate people who would have that broader bipartisan appeal. Frankly, Presidents of both parties are always under pressure from their respective bases to pick the most extreme people. That is what pleases the base of either party. It has always served the Republic well that a President can say I have to get that person confirmed through the Senate and if I pick the most extreme people that is going to be a problem. The fact that a President has needed that bipartisan support has essentially required that a President look for people who represent a broad consensus across America. In this postnuclear Senate, that moderating influence is gone. There is no such influence anymore, and I think it is a safe bet that we can expect more extreme nominees. We have already seen some evidence of it. The Hill ran a story recently. It reported that now that the nuclear option has been detonated, far left interest groups are ``pressing President Obama to select left-wing nominees for key regulatory and judicial posts, nominees who could never have been confirmable before.'' That is no surprise. That is exactly the kind of consequence we should expect. The second consideration is stability in rules and regulations that are promulgated by the various regulators and agencies. I hear every day across Pennsylvania one of the grave concerns of business that is hampering our ability to have a stronger economy, to have the kind of growth we would like to have, is uncertainty about regulations. It is true and it is important. Guess what. It is likely to get worse because, first of all, this huge administrative, bureaucratic State that we have devolved into recently touches on virtually every aspect of our life and there are hundreds of agencies, boards, and commissions that the administration controls. What is likely to happen now is that if the White House and control of the Senate changes parties, we are likely to see big swings in the ideology and the partisanship of these folks because they were not consensus candidates in the first place, right. Given that now we have a situation where a majority party just steamrolls their way through whomever they want and has every incentive to go to the extremes, when they lose an election what are we going to have? We are going to have the exact opposite swing. So for businesses trying to make a decision about whether to invest in America to grow their company, to hire more workers, they are going to worry and wonder: What will the regulatory regime look like in just a few years, depending on how the election goes? It is much less predictability, less stability, and the direct result of that is going to be less investment and fewer jobs. This is not good news for our economy at all. Finally, my concern is that for similar reasons we are going to see a diminishing of the judiciary, of the status of the judiciary among the American people, of the credibility, of the respect the American people have had. A moment ago I said I think one of the great strengths of the American Federal Government throughout our history has been, generally speaking, that--and there have been exceptions, and there will always be some exceptions--by and large at all levels the American people have had a pretty high respect for the judiciary. They respect the fact that our judges are capable and competent and tend not to be partisan hacks. They tend not to be polarizing political figures who are trying to advance an agenda. They have tended to be men and women of ability and integrity who were calling balls and strikes the way they see fit. They realize they are the umps and referees; they are not the players on the field. They are not there to advance an agenda; they are there to officiate based on the law and the Constitution. That has been the case. The reason our judiciary has been so respected is because it is nonpartisan. It is independent of the other branches of government, and it has behaved that way. The American people have the confidence that they can go before a Federal judge and receive a fair and unbiased hearing whether the judge is a Democrat, Republican, liberal, or conservative. The fact is that most Americans don't worry and say: Wait a minute. Is that judge a Republican? It doesn't occur to most people to ask that question, nor should it because it doesn't matter in most cases. This respect for the judiciary that the American people have is extremely important. In Federalist 78, Alexander Hamilton talked about the importance of this deep respect for the judiciary. He said: The judiciary is beyond comparison the weakest of the three departments of power. Whereas the executive branch has the military and Congress has the power of the purse, the judiciary cannot enforce its own decisions. It relies on Americans' respect for it and willingness to enforce its rulings as essential. The fact is that the deep respect the American people have had for the judiciary has allowed our courts, including the Supreme Court of the United States, to issue decisions that have profoundly affected our lives, profoundly changed our society, and so many times so much for the better. A famous example would be Brown v. the Board of Education, which reversed the separate-but-equal doctrine. It ended the southern government laws that banned White and Black persons from associating with each other. This created a certain upheaval at the time, but it stuck, and part of the reason it stuck was because the public saw that this was a decision by a nonpartisan court that was acting as an arbiter of our Constitution. The respect the American people had for our courts was a big part of why a contentious decision quickly became accepted and became part of our fabric. Alexander Hamilton explained that the judiciary's integrity and independence are absolutely critical; otherwise, Americans' ``confidence'' in the courts will be replaced by what he described as ``universal distrust and distress.'' He said: The benefits of the integrity and moderation of the judiciary . . . must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. The inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. When a President, with the cooperation of a legislature, rubberstamps judicial nominees for the purpose of ratifying a political agenda--when this happens, the American people's trust in the judiciary will be badly damaged, and we are at the threshold of that moment now. Of course, it also completely undermines our whole system of separation of powers. The fact is that when judges are seen as being at the beck and call of a legislature, a President, or a party, our individual liberty is simply not secure. Again, to quote Hamilton: The general liberty of the people can never be endangered from [the courts] . . . so long as the judiciary remains truly distinct from both the legislature and the Executive. He goes on to say: Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments. When you have one party ruling and completely controlling this process--and controlling it for the purpose of advancing a partisan agenda--that strikes me as exactly the danger Hamilton warned us of. So where does that leave us in this regard? I don't think we are doomed, but I do think it is very important that the American people rise and make their objection to this clearly heard. It is important that the American people contact their Members of Congress. They need to exercise their ultimate control of this process at the ballot box and urge the Senate majority to give up its plan to use the courts to achieve a legislative agenda that they cannot get through a duly- elected Congress that represents the American people. By the way, there is another big incentive for our friends to want to pack this DC Circuit Court, and that is because the front-burner and most prominent policy and political issue of the day is largely going to be litigated right there very soon. The DC Circuit is going to hear a very important case that goes to heart of ObamaCare. The DC Circuit is hearing a case about how the IRS has chosen to implement some rules. The law is very clear. The law unambiguously states that the subsidies ObamaCare has designed for many people who buy health insurance through their exchange--those subsidies will only be available through the State exchanges. As the Presiding Officer knows, ObamaCare contemplates two different categories of exchanges through which people are forced to buy the mandated insurance. There are State exchanges, and in those States that don't operate an exchange, there are Federal exchanges. Well, the law says that the subsidies are available only for the people who purchase their health insurance through the State exchanges. What the administration is attempting to do is to completely disregard the law and make the subsidies available to people who buy through either the State exchange or the Federal exchange. That is not what the law says. I understand that this administration routinely disregards the law, but that is why we have an independent judiciary--to impose a check when they do this. There is a legal scholar by the name of Mike Garvin who is following this case closely. He has explained what is going on. He said: Congress knew that the federal government cannot require the states to establish or operate Exchanges, so it offered subsidized insurance premiums for residents of states with State-operated exchanges to entice states to undertake this responsibility. Instead, fully 33 states--from Texas to Ohio to President Obama's and Vice President Biden's home states of Illinois and Delaware--have said ``thanks, but no thanks.'' Instead, these states have chosen to shield their businesses and residents from the worst of the potential ``train wreck.'' That creates a bit of a problem for the administration because with so many States choosing not to participate in this disaster and having only a Federal exchange, if they actually comply with the law they signed, then there would be a lot of people who would not be eligible for the subsidy. If the DC Circuit Court of Appeals were to simply follow and impose the law, then that would create a huge problem, which strikes me as yet another incentive for why perhaps we have gone through what we have gone through over the last couple of weeks-- because it is so important for our friends on the other side to get the decisions they want out of this court. All of this brings me to what we really ought to be working on. By the way, all of these nominees who are before us and tying us up this week are all entirely at the choosing of the majority leader. None of these are essential, none of these are urgent, and none of these are emergencies. We could be passing legislation, such as our Defense authorization legislation. We have a budget deal that could be on the floor. We have a farm bill that is overdue. We have a lot of things we could be doing. We could be trying to deal with the enormous problems caused by ObamaCare, but we are not. We are dealing with nominees instead. I think we ought to focus on the problems that ObamaCare is causing, and I will admit that sometimes it is hard to know where to begin because these problems are so huge. I will start with the taxes ObamaCare has been imposing on us and continues to impose on us. It is a pretty extraordinary list. As best we could tabulate, there are something like 20 different taxes that were created as part of ObamaCare. There is over $1 trillion worth of taxes to burden this economy and diminish our opportunities to grow and invest and create the jobs we need at a time when our economy is weak and needs an opportunity to recover. Instead, we saddle it with all of these taxes. For instance, we have an excise tax on charitable hospitals. We have a tax in the form of the codification of the economic substance doctrine. It is a tax hike of $4.5 billion that allows the IRS to completely disallow legal tax deductions. We have the black liquor tax hike, which is a tax increase on a type of biofuel. We have a tax on innovator drug companies. We have a $2.3 billion annual tax on the industry. We have a Blue Cross Blue Shield tax hike, which is a special tax deduction in current law that would only be allowed if 85 percent or more of the premiums are spent on clinical services. That is a tax increase which went into effect in 2010. We have a tax on indoor tanning services. We have taxes that took effect in 2011. There is the medicine cabinet tax. Americans are no longer able to use health savings accounts or flexible savings accounts or health reimbursement pretax dollars to purchase nonprescription over-the-counter medicine. So the inability to use these taxpayer accounts for legitimate medical needs is a tax increase. We have the HSA withdrawal tax hike. Going into effect in 2012, we have the employer reporting of insurance on W-2. In 2013 we have a surtax on investment income. We have a whole new 3.8-percent surtax on investment incomes, and this can only have the effect of diminishing investment in our economy. It diminishes the return on investment, diminishes the incentive to take a risk and start a new business, provide capital to a new business, grow a business, which is all due to ObamaCare. We have the hike in the Medicare payroll tax. One of the most egregious of them all--we have the tax on medical device manufacturers. This one is particularly egregious because it is so badly designed on top of being ill-conceived. This is a 2.3-percent tax on the sale of medical devices. Irrespective of whether a company has any income whatsoever or makes any money from this, we are imposing a tax on the sale of these products. The average medical device company has a profit margin of less than 5 percent. A 2.3-percent tax is about half of all their income that now goes to a new sales tax. By the way, they still have to pay income taxes, all the ordinary income taxes. This is absolutely devastating, because what these companies are then forced to do is, if virtually the entire bottom line goes for taxes, they don't have the money to reinvest in their business. The medical device industry is one of the best industries we have in this country. It is so dynamic. It is so creative. I wish my colleagues would come with me to parts of Pennsylvania where this industry is just thriving--or was thriving but not so much anymore. It was thriving because of the creativity, the innovation, the devices, and inventions that people are making, improving the quality of life and extending life. It is amazing, the marriage of technology and creative minds and experts in health care, what they are creating. But, unfortunately, for a lot of these products, it takes a long time before they are actually profitable for the company that sells them, long after they have begun sales. This tax imposes the burden before they have ever become profitable. What is the effect of that? It is that it makes this whole industry less appealing to invest in, less attractive to entrepreneurs, to investors. Whether it is venture capital or private equity or wherever the source might be, less is going to medical devices, an industry that is saving lives and improving the quality of lives. It is a big manufacturing industry. Most of these companies manufacture their products in the United States and many in Pennsylvania. We sell a lot of them overseas. We have a big trade surplus in medical devices because we lead the world. What does ObamaCare do? It slaps a new tax on the sales. It is a terrible policy. We have a high medical bills tax. Currently, those people who face high medical bills are allowed a deduction for medical expenses to the extent that those expenses exceed 7.5 percent of adjusted gross income. The new provision, which took effect just earlier this year, raises that threshold before a person can take that deduction. That is just a complicated, convoluted tax increase on people who have high medical bills. There is the flexible spending account cap. There is the elimination of the tax deduction for employer-provided retirement drug coverage in coordination with Medicare Part D. There is the individual mandate excise tax. There is the employer mandate tax. There is the tax on health insurers. There is an excise tax on comprehensive health insurance plans. There are 20 different taxes, the combined effect of which is, without a doubt, to significantly weaken our economy. But that is not the only way ObamaCare weakens our economy. The mandate ObamaCare imposes on employers kicks in on employers who have 50 or more employees. I have spoken with a number of Pennsylvania employers who have 45 or 47 or 48 employees. They are not subject to the hugely expensive mandates of ObamaCare, and do my colleagues know what they tell me? They are not going to be subject to it. They will go to great lengths to avoid hiring the fiftieth employee. They will hire temps. They will pursue automation. They will do all kinds of things they wouldn't otherwise do because this government makes it too expensive for them to hire a fiftieth employee. At a time when our workforce participation rate is at a record low because so many people have given up even trying to find work, ObamaCare makes it too expensive for employers to hire new workers. It has a similar effect on hours worked, because this 50-employee count applies to anybody who works 30 hours or more, so one of the ways a business can avoid these crippling costs is to cut back on the number of hours for their workers. That doesn't work out so well for somebody who needs those hours to pay their bills to support their family. It is happening all across the country. Another aspect that is really outrageous is this mandate in ObamaCare that employers must--regardless of whether the employees want it or not--provide contraceptive and abortifacient coverage. One of the problems with this is that these services run completely contrary to deeply held religious views for a lot of people, faith-based institutions, and others. So the administration decided they will offer an accommodation for faith-based institutions. The accommodation they offer is pure sophistry. What they offered was to say you won't have to--you, the faith-based institution--you won't have to actually pay for those services which you find objectionable based on your faith. You won't have to pay for them, but you have to buy an insurance plan that has them and the insurance company will just have to give you that for free. This is the most ridiculous thing in the world. Private companies aren't in the business of offering their services for free. If there is an aspect of it that they supposedly have to give away, then they will pass on the costs for the services they provide. Nobody is fooled by this. This is yet another of the details of ObamaCare. But, really, some of the biggest problems I have saved for the end, and that is the series of broken promises that ObamaCare constitutes. One of the most glaring is this promise we have all heard. I don't know how many times we have heard it, but we all have. We heard the President and so many of our Democratic colleagues who support this bill say: If you like your health plan, you can keep your health plan. Let's be very clear. Everybody who supported this bill who is familiar with it--and that would certainly include the President of the United States and my friends here--they knew from the beginning that was not possible. They knew that because the legislation was designed to prevent many people from keeping their health insurance. It was written for that purpose, in part, because they had to. The whole point, or a big part of the point of ObamaCare was to establish standards that the government determined were appropriate, regardless of whether an individual American thinks that a given plan is adequate or not or suitable for herself or her family. It was up to the government to make this decision, not the individual, and they would establish criteria, and if your plan didn't meet the criteria, your plan was going to be canceled. That is in the legislation. That is codified. It always was. It is at the heart of this legislation. So for anybody to go around the country saying, If you like your health plan, you can keep your health plan, they were knowingly stating something that was completely untrue, was always untrue, and was necessarily untrue. The examples abound. I have emails from constituents. I have too many. I won't have a chance to run through them all this evening. I may have to come back on another occasion. But I will share a few with my colleagues. This is from a small business owner from Lancaster County, PA. I got this just--I think I got this earlier today. I will just quote from this email from my constituent, addressed to me. It says: As my Congressional representative, you need to know how ObamaCare is harming my life and health care. I work for a small construction company. My cost for family health care was already over $11,000 per year. We received notification that our policy was being canceled since it did not comply with the requirements of the Affordable Care Act. Our company looked for the best rates they could find for comparable coverage which did comply. They chose a new insurance company. We just recently were given the costs for next year. My costs to cover myself and my family will be over $17,500, a 59-percent increase. Even with that, the deductibles and out-of-pocket maximums are higher. This is not ``Affordable Care''. This would eat up a major part of my income. I attempted to log onto the healthcare.gov website several times, but always get kicked out. I do not hold much hope that I will get any better rates, because I don't qualify for a credit. We were already struggling to live on my take home pay. We cannot afford to have it reduced by over $6,500.00. We may have to drop coverage for my wife or kids, and pay the penalty. I suspect that this law will result in many more people losing more health care, at the expense of a few getting free or reduced cost healthcare. I got this just a week ago from a man from Cumberland County, PA. He said: My wife Barb and I have been trying for almost three weeks now to get signed up. . . . all income and health info and private information is on the unsecured web site and the application is accepted . . . but we have not been able to get on to pick the plan or get our price . . . so nobody has been paid. Thus our canceled insurance ends on Dec. 31st and we look to be out. A BIG mistake by the folks who voted for this . . . I've had cancer a couple times, my wife has had cancer and we both see our doctors when needed. This ACA will ruin many families if we can't get onto an insurance plan. A woman from Lebanon County, PA, sent me this email a week ago. She said: We had our healthcare discontinued, and after an appeal we were able to get it reinstated, but only for this year. Currently we have a health care savings plan with a deductible of $3,000 a year. . . . In the new plan, our deductible would increase to $12,000 . . . and our premiums would increase to $9,000 a year. How is a middle class married family supposed to pay for that? This is absolutely ridiculous, and this is our situation. I hope every government worker has to purchase their plan through this plan. Here is another. A man from Delaware County in southeastern Pennsylvania: I am 66 and I am on Medicare. My wife is 63. Her insurance company canceled her ``longstanding'' policy due to the requirements of the ACA. Her ``new'' policy costs $350 more per month. We are on a strict budget. . . . We are the hard working middle class. Who stands for us? There was another promise we frequently heard, and that promise we frequently heard was that if you like your doctor, you will be able to keep your doctor. This too was known to be impossible. Since the law was designed to discontinue health insurance plans and force people on to alternative plans, not all plans cover the same doctors. Certainly, some were going to lose their coverage. Let me give an example of an email I got from Westmoreland County just last week. She writes: I have been self-employed for 13 years and have never been without health insurance. 3 years ago I was diagnosed with multiple sclerosis. Having an expensive preexisting condition was not a problem for me as I had never let my insurance lapse. My medications cost (without insurance) $4,000+ per month. I received notice several weeks ago that they would now cancel my plan and would do so as of Jan 1, and I had to sign up for new coverage through the health insurance exchange. My staff reached out to this woman and tried to help and, after several attempts, she was able to access the exchange. Do my colleagues know what she learned? She learned that in her region there were two options available to her. One covers her doctors who have been treating her for her MS for years. The other covers her prescription drugs. Neither one covers both. These are the kinds of decisions people are being forced to make all over America. They are the kinds of decisions people are being forced to make every day. It is the direct result of the loss of personal freedom that this legislation imposes on people, and this is the topic that we ought to be addressing in this body so we can pursue the only solution, which is to repeal this bill and move health care in a completely different direction. I believe my time has expired, so I will yield the floor.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, I rise as we consider the nomination of Deborah Lee James as Secretary of the Air Force, and I wish to touch on some of the points that were made by the Senator from Alabama. I wish to state how much I appreciate his leadership, especially as the ranking member of the Budget Committee, his consistent leadership and fighting for fiscal discipline and putting our country back on a sustainable fiscal path, his commitment to an open amendment process, the opportunity to have vigorous debate in the Senate so that this body can work its will, and, of course, his work on the Armed Services Committee. I appreciate all of that, and I appreciate him being here tonight. I do think it is important we have a discussion about how we got here, a discussion about the circumstances that have led to this completely unprecedented moment. In the entire history of the Republic, we have never found ourselves in this circumstance where a majority party has decided that they alone should have sole say in who shall be appointed to the executive branch and who shall have the lifetime appointments to our Federal bench. I am one who believes this will very likely have very detrimental effects because when one party can ram through their choice without having to give any regard whatsoever to what the other party thinks, then what do we get? We get legislation like ObamaCare and we have extremes in the nominations that will eventually be confirmed. Any President comes under pressure from the extremes within his or her party to put the most extreme people in positions of power, and the Senate has played a vital role in moderating that extreme, that tendency, that pressure, because it has virtually always been the case that neither party has 60 votes. Very seldom has it been the case that a party has had over 60 votes. So it has almost always been necessary that there be some broad bipartisan consensus on the people who will populate powerful posts as regulators and lifetime appointments to the bench. That is no longer the case. There is no such check, and I fear that the consequences will be very detrimental: extremism in the regulatory agencies, volatility as we move from one administration to another and we have these swings, and probably the most disturbing of all is the real danger that the greatest source of pride Americans can have in their Federal Government, which has been an independent, nonpartisan judiciary--that very judiciary becomes a creature of the political and becomes captured by the political branches of government. That is the danger, and that is why it is important we consider how we got here and why we got here. It is particularly extraordinary when we consider the statements of some of the leaders on the other side of the aisle, Democratic leaders who for years were passionately opposed to doing exactly what they did last month. The majority leader himself just a short time ago said: The right to extend the debate is never more important than when one party controls Congress and the White House. In these cases, a filibuster serves as a check on power and preserves our limited government. Senator Schumer, the senior Senator from New York, put it this way: The checks and balances which have been at the core of this Republic will be evaporated by the nuclear option. The checks and balances say that if you get 51 percent of the vote, you don't get your way 100 percent of the time. That was Senator Schumer and Senator Reid. There are many other quotes on the record in which they vigorously opposed the notion of denying the minority any say in the confirmation process when it was discussed but never implemented some years ago. So why would they have such a 180-degree reversal? Why would their opinion and that of the vast majority of my Democratic colleagues have changed to the point where they would actually take this absolutely unprecedented step? Senator Reid gave an explanation on the day he inflicted these changes on this body. I will quote from Senator Reid's explanation. He said: There has been unbelievable, unprecedented obstruction. For the first time in the history of our Republic, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges. That is what Senator Reid said. So it has been about Republicans obstructing the President from appointing his executive team and confirming judges. Well, let's consider the case of judges to start. Let's take a look at this chart. Since President Obama has been President, there are some very simple, very easily verifiable facts we can look at. The President has sent nominees for the Senate to consider since he became President. The Senate has confirmed 215 of those nominees, but the Senate has blocked 2 of his nominees. These are verifiable facts. They are not in dispute. These are the numbers. In total, the President has sent us the names of 217 candidates for judgeships, and 215 were confirmed and are sitting judges and 2 were blocked. There is another category of nominees; that is, the executive branch nominees--the various agencies and regulatory bodies that are subject to senatorial confirmation. The President has sent us a total of 1,494 nonjudicial executive branch nominees. The Senate has confirmed 1,492. The Senate has blocked two. The math is not that complicated. The President has nominated and sent to the Senate for our consideration a total of 1,711 altogether, and the Senate has confirmed 1,707. The Senate has blocked four. If you do the math, that is a confirmation rate of 99.8 percent. So of all the nominees the President has sent to this body to be confirmed, we haven't actually confirmed every one; we have only confirmed 99.8 percent of them. Of the 1,711, we have blocked 4. I would suggest that the power of advice and consent--the Constitution says advice and consent; it doesn't just say advice. If it just said advice, then that would clearly imply that the President could ignore the advice if he chose. But it doesn't just say advice; it says advice and consent. The power to consent clearly and obviously implies that under some circumstances that consent would be withheld. If not, there is no meaning to this at all. So I would suggest it is patently absurd to suggest that a 99.8- percent confirmation rate is a pattern of obstruction, as we have been accused of. So that can't be the real reason, obviously. Obviously, this kind of record of almost universally approving Presidential nominees can't possibly be the real reason we had this unprecedented power grab and rules change. So what was the real purpose? What was the real motivation behind this very dramatic development? I am here to tell you that I think it is very clear what the real motivation was. The motivation was to pack the DC Circuit Court of Appeals so that a partisan group of judges would validate an agenda that this administration and many of our friends on the other side of the aisle want to impose. That is an outrageous thing to say in some ways. Some people might think that is quite an accusation. What would be my basis for saying something like that? It would be the fact that Senator Reid and Senator Schumer told us that was their reason. They said so. I will get to their quote, but let me explain why this has been done. The fact is that elections have consequences. The President of the United States was elected. The Republicans have been enormously deferential in confirming his nominees, among other things. But in 2012 the President wasn't the only person on the ballot. The entire House of Representatives was on the ballot, and the American people chose to reelect a Republican majority in the House of Representatives. Those elections have consequences as well, and one of the consequences of that election--the set of elections that produced a Republican majority in the House and left many Republicans in the Senate--is that the more liberal aspects of the President's agenda can't pass in Congress. They are not supported by a majority of the American people. They are not supported by majorities in Congress. Things like cap and trade, card check, the war on coal, and recess appointments don't have support. I don't think they have broad support in either body, certainly not enough in the House of Representatives to pass. So what is a President to do if he can't get his legislation passed but he nevertheless wants to pursue an agenda? Well, one way a President could choose to do this--especially one who is not interested in working with the minority party--and let's face it, ObamaCare is the clear example that this President is not interested in the input of Republicans. That was jammed through without a single Republican vote in either the House or the Senate. There was no input from Republicans. There was no consideration for what the minority party considered. There was not a broad consensus. It is not surprising that a very short time later there is a big majority of the American people who do not support this bill because it was never designed with enough input and enough buy-in to have that broad consensus. If a President is not interested in working with the minority party and he cannot get his legislation through because there are not enough members of his party in Congress, the alternative is to try to impose it through the regulatory process, through the agencies, through the regulators, through the executive branch, which has become enormous and enormously powerful. There is only one big hurdle for a President to try to go down this road and that hurdle is that eventually people who are the victims of an overreaching group of regulators and administrators and agency heads, they have recourse. If they think that a given regulator is acting unfairly or illegally or unconstitutionally, they can go to court and in fact people do that. Guess what court ends up hearing the appeals and making what is very typically the final decisions, as a practical matter, regarding Federal regulations. Why, it is the DC Circuit Court of Appeals. That is the way our Federal system works. In fact, the DC Circuit Court has generally been upholding the laws. I believe the evidence is very clear that it is a capable, competent, nonpartisan group of talented judges who make decisions as they see fit. They call balls and strikes, as referees ought to. Among their decisions, for instance--I am sure I do not agree with all of them but they did block what I thought was an illegal overreach by the EPA, inconsistent with the laws regulating EPA. They did not believe the President had the right to decide when Congress was in recess and make appointments that suited him when we were not able to deny consent. That was the DC Circuit Court's decision. This, and several others, were completely unacceptable to some of my Democratic friends. It was unacceptable this independent, nonpartisan court might reach decisions that were inconsistent with the liberal agenda. How do we know this was unacceptable? We have some quotes. The senior Senator from New York, Mr. Schumer, discussed this. He was speaking to a group of supporters. It is on the record. He complained that the DC Circuit overturned the EPA's ability to regulate existing coal plants. He complained the SEC cannot pass rules unless they do what is called a cost-benefit analysis. He complained they struck down the administration's illegal recess appointments to the NLRB. He told a group of supporters that Democrats ``will fill up the DC Circuit one way or another.'' That was the quote. It was pretty straightforward, I will give him that. It is pretty candid. We do not like the decisions that are coming out of this court so we will pack the court with people who agree with our ideology. Senator Schumer was not the only one to make this case. Senator Reid had this to say of the DC Circuit: They are the ones who said the President can't have recess appointments. They have done a lot of bad things. So we are focusing very intently on the DC Circuit. We need at least one more. There are three vacancies. We need at least one more and that will switch the majority. This is Senator Reid on the DC Circuit: ``We need at least one more,'' obviously referring to a judge. ``We need at least one more and that will switch the majority.'' I think it is pretty clear what was going on here. Now fast-forward to a few weeks ago. There was just one obstacle to putting the people who would agree with Senator Schumer and Senator Reid on the DC Circuit Court and render the decisions they wanted. The obstacle was Republicans were not interested in going along with the scheme to pack the court for ideological purposes. They didn't think that was a very good idea. They thought it was probably better to have judges who were not there to try to advance a political agenda but believed their job is to apply the law as written and make sure it is consistent with the Constitution as opposed to pursuing a political agenda. Despite the fact that Republicans had to that point confirmed 99.8 percent of all the President's nominees, that was going a little bit too far, to simply blatantly pack the DC Circuit Court, and we said no to the three nominees who were people they were intending to pack that court. When we did, Senator Reid, after publicly promising he was not going to change the rules this way just this past summer, nevertheless did exactly that. Despite the fact the Senate rules are very clear to change the rules requires a vote of 67 Senators, precisely so there would be a broad consensus behind the rules, Senator Reid changed the rules with a mere 51 votes. He broke the rules so he could change the rules so the Democratic majority can now steamroll through and rubberstamp all of the President's nominees, including those necessary to pack the court so they can pursue the agenda they want to pursue. This is not my speculation. These are the quotes from the man who helped to organize this effort. It is, frankly, very reminiscent in a lot of ways of ObamaCare: Steamroll through Congress, one party, no input from the other party, the minority party, and a complete disaster. By the way, the other big similarity is the broken promises. Senator Reid clearly, unambiguously, unequivocally, unconditionally made the promise that he was not going to change the rules and then he did. Then what have we been hearing about ObamaCare? One broken promise after another. What I am going to do for the remainder of the time that I consume this evening is remind all of us of some of the promises that were made. Then I am just going to read a small sample of the emails that have been coming into my office from Pennsylvanians who have learned firsthand, the hard way, the painful way, just how untrue these promises were. The first one is maybe the most famous of the promises. This is the President's repeated promise, echoed by many others, and I will quote: ``If you like your health plan you can keep your health plan.'' I don't know how many times the President said it, but we have all seen it, we all know it. But what is particularly maddening is we also know something else. We know everybody who said this always knew this was not true. It was not true because the design of the bill forbids people from keeping health insurance plans in many cases--not all cases but many cases--and the authors of the bill and the supporters of the bill and the people who voted for the bill knew full well that one of the purposes of the bill was to establish government-approved standards for all insurance plans. If your plan did not meet those standards, you were going to lose your plan. So this is what some folks have written to us about this promise, that if you like your health plan you can keep your health plan. This was just 2 days ago, a gentleman from Lancaster County from Pennsylvania wrote: As my Congressional representative, you need to know how ObamaCare is harming my life and health care. I work for a small construction company. My cost for family health care was already over $11,000 per year. We received notification that our policy was being cancelled since it did not comply with the requirements of the ``Affordable Care Act.'' Our company looked for the best rates they could find for comparable coverage which did comply. They chose a new insurance company. We just recently were given the costs for next year. My cost to cover myself and my family will be over $17,500 per year (a 59-percent increase). Even with that, the deductibles and out of pocket maximums are higher. This is not ``Affordable Care.'' This would eat up a major part of my income. I attempted to log onto the healthcare.gov website several times, but always get kicked out. I do not hold up much hope that I will get any better rates, because I do not qualify for a credit. We were already struggling to live on my take home pay. We cannot afford to have it reduced by over $6,500. We may have to drop health coverage for my wife or kids, and pay the penalty. I suspect this law will result in many more people losing their health care, at the expense of a few getting free or reduced healthcare. Another from a gentleman from Cumberland County last week. My wife Barb and I have been trying for almost three weeks to get signed up. . . . all income and health info and private information is on the unsecured Web site and the application is accepted . . . but we have not been able to get on and pick the plan or get our price. . . . so nobody has been paid. Thus our cancelled insurance ends on December 31st and we look to be out. A BIG mistake by the folks that voted for this . . . I've had cancer a couple times, my wife has had cancer and we both see our doctors when needed. This ACA will ruin many families if we can't get on to an insurance plan. These folks are not only losing the insurance they have, but they have not been able to get an alternative plan. A woman from Lebanon County, Pennsylvania, last week sent me this email. We had our healthcare discontinued, and after an appeal were able to get it reinstated, but only for this year. Currently we have a healthcare savings plan, with a deductible of $3,000 a year. . . . In the new plan, our deductible would increase to $12,000 . . . and our premiums would increase to $9,000 a year. How is a middle class married family supposed to pay for that? This is absolutely ridiculous, and this is our situation. I hope every government worker has to purchase their plan through this plan. A gentleman from Delaware County sent me this email last week. I am 66 and I am on Medicare. My wife, Mary Ann is 63. Her insurance company canceled her ``longstanding'' policy due to the requirements of the ACA. Her ``new'' policy costs $350 more per month. We are on a strict budget. . . . We are the hard working middle class. Who stands for us? A small business owner in Cumberland County, Pennsylvania, December 3, 2013: I am a small business owner with 3 employees looking for health insurance. My old policy is being canceled and was offered a replacement policy which is 68% higher than the old policy with higher deductibles. I went through the healthcare.gov site and was quoted an individual policy for my family which is 74 percent higher, with higher deductibles. When do I see affordable health care for my family? I have been self-employed for 19 years and have paid for my insurance all these years myself. With deductibles I am looking at $26,000 out of pocket for health insurance this year. Please Help! Another promise that we heard--these were people, real people who were demonstrating how untrue was the promise that you could keep the health insurance plan that you have. But there was another promise we heard frequently and that promise was, ``If you like your doctor, you will be able to keep your doctor, period.'' The President added that flourish at the end, ``period,'' just to emphasize. These are the President's words: ``If you like your doctor, you will be able to keep your doctor, period.''

Mr. TOOMEY

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

Mr. TOOMEY. Mr. President, I ask for the yeas and nays on my amendment.

Mr. TOOMEY. Mr. President, I rise today to address an amendment I have pending on the ENDA bill which we will vote on soon. This is an amendment I have offered on my own behalf and that of Senators Flake and McCain, who have joined me in this effort, and I thank them for that. It occurs to me that sometimes in our work a tension can arise between important competing American values, and two vitally important American values are, I believe, somewhat in tension in some aspects of this bill. First, one great enduring and important value for all Americans is equality. This bill today clearly makes a strong stand for greater equality. I believe, and I think most Americans share the view, that every individual is entitled to dignity and respect and fairness, and that individuals ought to be judged based on their merits, on their character, and on their abilities. A person's sexual orientation is irrelevant to their ability to be a good doctor or engineer or athlete or a Federal judge. That is why I have supported acknowledging that reality. I supported 17 years ago, in the writing of the charter of the city government of Allentown, a provision that would ban discrimination on the basis of sexual orientation in the hiring for that city. I supported an end to don't ask, don't tell, because I thought it was an inappropriate infringement on the freedom of gay and lesbian persons serving in the military. I believe there are more legal protections that are appropriate to prevent employment discrimination based on sexual orientation. So these are an important set of values. Another obvious and vitally important American value is freedom, and particularly religious freedom. The First Amendment guarantee of the free exercise of religion means that religious groups, even in the course of secular services, can, for instance, choose to hire employees who agree with their religion, employees who will promote that religion. And of course, the First Amendment applies even when we don't necessarily agree with the views of that religion or that faith. What we have tried to do in this legislation and in other context is to strike an appropriate balance between the tension that arises between these sometimes competing values. The sponsors of this bill have made a very thoughtful, credible effort to strike that balance. In fact, the sponsor of this bill and I agree on what at least an important aspect of that important balance ought to look like, and specifically I believe the agreement is that religious institutions, including those engaging in some secular activities, should be exempt from the requirements of this bill if it violates the tenets of their faith. The goal of my amendment is to simply make sure the bill actually achieves what the drafters intended. The Senator from Oregon, who is the chief sponsor of the bill, has stated correctly, in terms of its intent, that the bill ``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 do not hinder the passage of this critical legislation. Other groups that are advocates for this legislation have similarly observed that the provisions of title VII would ensure the exemption of faith-based institutions. There are examples where circuit courts have ruled, in interpreting title VII of the Civil Rights Act, that affiliated organizations would in fact get this exemption. Examples include a gymnasium run by the Mormon Church, Christian elementary schools and universities, a Presbyterian-operated retirement home, a Seventh Day Adventist hospital, a Jewish community center, and there are others. So I acknowledge it is absolutely true it is the case there are Federal courts that have respected the religious freedom of these institutions to be exempted from the religious hiring mandates of the Civil Rights Act and, presumably, that would apply in the case of ENDA because of the way the legislation is crafted. The problem that concerns me is that there are other cases where other courts have come to a different conclusion, and they have not recognized religious institutions the same way. There is a lack of uniformity across our country, across the different districts that ultimately interpret the application of title VII of the Civil Rights Act. In fact, over the years, different courts have interpreted the language quite differently, and so we have these two problems, in my view, if we leave the underlying legislation as it is. One is that Americans will live under not two but multiple different standards. The 12 circuits that apply the title VII exemptions have already adopted four different tests for determining whether an institution qualifies for the religious exemption. The second problem is that employers and workers don't necessarily have predictability even within a circuit that has its own test, which differs from another circuit. And the reason is the tests themselves are somewhat subjective and somewhat unpredictable. They have multiple factors. For example, the Third Circuit, which includes my State of Pennsylvania, has nine factors; and as the court explained, not all factors will be relevant in all cases, and the weight given each factor may vary from case to case. The result is that in a single case decisionmakers looking at the same set of facts can reach very different conclusions. In the absence of my amendment, my concern is there will be no uniform, predictable national standard for determining when a religious entity, a religious organization, is exempt from the bill. There are a couple of examples that illustrate my point. In a case called the EEOC v. Kamehameha Schools--that is a Hawaiian word. My pronunciation may not be correct. This is a 1993 decision-- there were two schools created by a charitable trust to help orphans and poor children. The trust instructed ``the teachers . . . shall forever be persons of the Protestant religion.'' The schools shall provide a good education ``and also instruction in morals.'' The schools hired only Protestant teachers. They held themselves out as Protestant schools. They required all the students to take religious classes. They offered Bible studies and worship services, and they had a cooperative relationship with one specific Protestant church. The district court found the schools were religious and, therefore, they were covered and they qualified for the exemption. But the Ninth Circuit Court, considering the exact same set of facts, found the opposite and decided the schools were secular. The Ninth Circuit acknowledged the schools' original principle was providing religious instruction, but they essentially ruled that since some students were not Protestant and since the schools offered courses that were not religious in nature--the schools taught math and they taught social studies--for those reasons they would not qualify for the exemption and the schools were required to hire non-Protestant teachers. Another example--and I only have two--is a Methodist orphanage founded by the Methodist Church. The board of trustees were Methodist and they had close ties to the Methodist Church. The district court eventually held that many of the orphanage's day-to-day activities of caring for children were simply not necessarily religious, and so the home was not exempt. But initially, the district court had actually found for the Methodist orphanage. It was the Fourth Circuit that reversed it, sent the case back with instructions they reconsider this. The district court had an interesting comment in this. It stated its opinion by declaring that it remains somewhat confused as to the proper interpretation, but it would do its best. So if a Federal judge can't tell what the test is, how could workers? How could an employer? How could an institution based on faith? My amendment really is a modest attempt to ensure the bill actually achieves what I believe its authors and sponsors and supporters intend. It would continue to guarantee equality to workers, but it would protect religious groups' rights to the free exercise of their religion. And it would ensure all Americans would live under the same rule, the same formulation, with predictability and certainty. It would clarify that ENDA's religious exemption applies to religious hospitals, schools, charities, and other organizations that are owned by, controlled by, or officially affiliated with a church or religious group covered by ENDA's current exemption. What this does is simply ensures we get close to striking a good, sensible balance between the equality in the workforce that is the principle motivation for this bill and the religious freedom I feel very strongly about and I think many of my colleagues do as well. I want to commend everybody who has put in a lot of hard work on a careful and thoughtful effort here, and I hope my fellow Senators will join me in supporting this amendment. Mr. President, I yield the floor.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, just a parliamentary inquiry: I have 10 minutes allocated to me?

Mr. TOOMEY. Thank you very much, Mr. President. I rise to address the candidacy of Congressman Mel Watt to be Director of the Federal Housing Finance Agency as well. Let me preface my comments by making it very clear. I know Congressman Mel Watt. He is a good man. I served with him in the House. We served on the Banking Committee together. I know for many years he has been and continues to be a passionate advocate for increasing taxpayer subsidies for housing finance, and I have never once doubted his sincerity, his commitment, or his passion for working for his constituents and also for disadvantaged people generally. Having said that, while Mel Watt is certainly a good man, I think this is the wrong job for this good man, and I want to explain why. I think it is useful to first consider the massive size of the institutions that the Federal Housing Finance Agency, the FHFA, regulates. Fannie Mae, Freddie Mac, the Federal Home Loan Banks combined are enormous. Fannie and Freddie together hold 48 percent of all the outstanding mortgages in the United States of America. Last year, they guaranteed almost 80 percent of all the new mortgages that were issued. Combined, Fannie and Freddie have assets that are nearly $5.2 trillion--this is much larger than the Federal Reserve--which have just made themselves into an enormous institution. Combined, Fannie and Freddie are more than twice as big as JPMorgan Chase, the biggest bank in America. In addition to being very large, they are enormously complex, and they are at the center--in fact, they are the housing finance market of the United States of America. So they are enormously large, they are enormously complex. And the post we are talking about here--the directorship of the regulator--has virtually unchecked powers. The legislation that creates this post, that creates this agency and the head of this agency, empowers the Director enormously. Let me quote from the statute. The Director's powers include ``all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director'' of the entity. In plain English that means this person has the power of the entire board of directors, the CEO and all the management, and the regulatory agency that controls it all. There is no parallel in our country for an institution where so much power is concentrated in one person. In addition, there is no congressional oversight. The FHFA does not depend on Congress for appropriations. It gets its money from fees from the entities it regulates. So Congress has no control, no authority, once a person is confirmed in this post, and they are confirmed for a 5-year term and can only be removed for cause. So it is unchecked power on an enormous scale. Now, precisely because of the unchecked power over these enormously large, important, powerful, and complex institutions--precisely for that reason--the statute stipulates very clearly that the person holding this post has to be someone who is technically competent because of their own history, because they have been a practitioner in this field. The legislation demands that, and for good reason. Specifically, the law insists that the Director shall have a ``demonstrated understanding of financial management or oversight, and have a demonstrated understanding of capital markets, including the mortgage securities markets and housing finance.'' So we are not talking about being automatically qualified by virtue of being a Member of Congress. One needs to be a practitioner. I will give you one quick example of many why central to the management of the enormous complexity of these institutions is the use of complex derivatives, which manage the interest rate risk inherent in these portfolios. Fannie and Freddie are the world's biggest users of derivatives for this risk management purpose. Understanding how these work, the risks that are inherent in them, and how it affects the broader capital markets is absolutely essential. Yet in December 2011, Mel Watt said this. I quote Congressman Watt: For all of the last term of Congress, I sat in the Financial Services Committee, and a lot of these arguments that I am hearing today are the same arguments that I heard about derivatives. Well, I didn't know a damn thing about derivatives. I am still not sure I do. Derivatives are central to the management of these institutions. There is another reason why this statute insists on an experienced practitioner and a technocrat rather than a politician, and that is because pursuing a political agenda at these institutions is enormously dangerous. Look at the damage that it did the last time. Congressman Watt was an advocate for all of the policies that helped to drive Fannie and Freddie into the conservatorship that cost taxpayers so much money. He supported lower capital standards, lower downpayments, lower underwriting standards, loan forgiveness. He was opposed to tougher regulations, even when it was becoming clear that these institutions were on a downward spiral and soon would need a massive bailout. Unfortunately, Congressman Watt still supports these policies. And if he were confirmed as the Director, with all of these powers, he could unilaterally reinstitute these policies. Now, fortunately, at the moment, we have a Director who understands that his obligation to the taxpayer precludes these misguided policies. I am deeply concerned that if confirmed, Congressman Watt would reverse that practice and reinstitute some of these very damaging and dangerous policies. So for these reasons and, I would say, in respect and in honoring the clear language of the statute, we have an obligation to not confirm Congressman Mel Watt. While I know he is a very good man, I think he is the wrong person for this job. So I would urge my colleagues to vote no on cloture later today. I yield the floor. The Nomination of Mel Watts

Mr. TOOMEY

Mr. TOOMEY. The Senator from Washington objects to my request that we go to conference so we can resolve the impasse of the shutdown of government and instead wishes to go to conference on something else, which is the budget resolution, in the event it does not reopen the government. I object.

Mr. TOOMEY. Reserving the right to object, I would point out a couple of things I didn't hear in the discussion of the Senator from Washington. One is the fact that the House has passed three different measures to fund the government. That has already happened. They were sent over here, and each one was rejected by the Senate Democrats, one after another, so that we are now in a government shutdown. I would also point out that after the Senate Democrats rejected every measure the Republicans sent over to fund the government, the Republican House sent over a measure to go to conference so that we could resolve this problem. I find it a little bit ironic, to say the least, that our Democratic colleagues are saying: We need to go to conference on the budget resolution. Now, I know the terminology here can get confusing for people, but that is a vehicle that has nothing to do with the immediate problem we have right now, which is the funding of the government, because we don't have a continuing resolution to actually fund the discretionary spending of the government, and that having expired and our Democratic friends having voted down every attempt by the Republicans to fund the government, we are in this bind. Now we have the unanimous consent request, if I have this right, that says that if the Republicans agree to every demand the Democrats have made beforehand, initially, then and only then would our Democratic friends like to have a conference on the budget. This is what I am hearing. What I would ask is whether the Senator from Washington would consider a modification to the unanimous consent request, and this would be two things. One would be that they also would agree to go to conference on the CR so we can work out the problem that is preventing us from reopening the government. The other would be that when we go to conference----

Mr. TOOMEY. I yield to the Senator.

Mr. TOOMEY. My request is that we try to find a resolution to the shutdown. Go to conference----

Mr. TOOMEY. Go immediately, right now. The government is shut down. Let's go right now to conference as the House has requested so that we can reopen the government and can work out an agreement rather than have this impasse. Let's try to break the impasse by trying to go to conference. That would be one condition. Then I would go back to what our concern has been about the budget conference all along. I have asked unanimous consent to go to conference on the budget. I am a member of the Finance Committee. I would like us to do that. What I have objected to and what many of us have objected to is using it as an opportunity to break the Senate rules and airdrop in a debt ceiling increase without the opportunity to have the 60-vote threshold we ought to have in the Senate if we are going to consider increasing the debt burden on the American people. I would ask unanimous consent that the Senator from Washington agree to those two modifications.

Mr. TOOMEY

Mr. TOOMEY. Madam President, I wish to take a moment to reflect a little bit on this impasse where we find ourselves. The Senator from Indiana is going to join me in a discussion here, and I will have a unanimous consent request along the way. First of all, as to where we are, as we all know, we are at an impasse on how to fund the roughly 40 percent of the Federal Government that is funded through discretionary spending--the spending that Congress controls, the spending that is supposed to happen through the ordinary appropriations process but does not around here. As we address this issue, it has become obvious that every single Republican in the House and the Senate wants to defund ObamaCare as a step in the direction of completely repealing this completely unworkable bill. But all the Democrats support ObamaCare, and they want to implement it and they want to fund it and they want to move forward. The impasse arises, obviously, because the Democrats cannot have their way in the House where the Republicans are in control, and we Republicans cannot have our way in the Senate where the Democrats are in control. So I have a suggestion. My suggestion is, maybe--maybe-- there is a third way. Maybe this does not have to be completely binary. Maybe this does not have to be an all-or-nothing proposition in which one side completely wins and the other side completely loses. Among my Democratic friends--who are big fans of ObamaCare--I would think there is nobody who actually thinks that is a perfect bill. I cannot imagine that when the American public has made clear, overwhelmingly, their opposition to this bill. When you cannot pick up a newspaper in America today without reading a front-page story about the huge problems and costs and negative effects ObamaCare is creating, I cannot imagine that anyone thinks this is all perfect. So here is my suggestion: Why not repeal a few of the more egregious flaws that have been acknowledged as flaws on both sides of the aisle-- those things that are not working that are most problematic--just a few. Couldn't we do that and at least make some progress? So the three items I have in mind are the subject of my unanimous consent request. One would be repeal of the medical device tax, which is one of the most egregious flaws in this badly flawed bill, and I will speak some more about this tax in a little while. A second would be to delay for 1 year the individual mandate. I think Senator Coats from Indiana is going to speak a little bit more about how important it would be to delay that individual mandate. The third would be to protect the religious freedom of those who object based on deeply held religious views. They object to the contraception mandate that is imposed on them, including faith-based institutions. So I am going to request that we consider these amendments. That is all--just asking for an up-or-down vote on these amendments. I think that is a pretty reasonable request. Every one of these has had bipartisan support. By the way, the repeal of the medical device tax was supported by 79 Senators. Two-thirds of the Democratic Senators voted in favor of an amendment to repeal the medical device tax, and every single Republican. That is not even controversial anymore, to repeal the medical device tax. They all have some level of bipartisan support. Taken together, they are about budget neutral. Repeal of the Medical device tax would cost the government some revenue, but the delay of the individual mandate would save the government expenses, so it is about revenue neutral. This could probably speed up the whole process. If we allow these amendments, frankly, they all would probably pass. If they became part of the underlying bill and if Senator Reid has the votes to pass the amendment he wants to pass, what would go back to the House would probably pass the House and it probably would not have to get ping- ponged back here and risk a government shutdown. Finally, it would break this impasse, and it would demonstrate that we are at least able to come together on the things where there is bipartisan agreement. So I think the most reasonable thing in the world is to have the vote. That is all. I do not know for sure how it will turn out. I think it will pass because these items have demonstrated bipartisan support before. But I think it is unreasonable not to be able to have the vote. So, Madam President, I ask unanimous consent that the pending amendments be set aside and that it be in order to call up the following amendments, which are at the desk: No. 1971, to repeal the medical device tax; No. 1972, to delay the individual mandate; and No. 1973, to protect religious freedom; I further ask consent that each amendment be limited to up to 1 hour for debate equally divided in the usual form; I further ask consent that following use or yielding back of time on each of the amendments, the Senate proceed to a vote in relation to each amendment with no intervening action or debate.

Mr. TOOMEY. Madam President, I want to commend the Senator from Indiana. I agree entirely. I think this is really an outrageous process. Let's consider where we are and why. We have another manufactured fiscal crisis, manufactured because the majority party that controls this body refuses to bring out appropriations bills. We had one appropriation reach the floor this entire year. If you do not do appropriations bills, you run into this cliff at the end of the process. So now where are we? We have this giant CR, this huge omnibus, whatever you want to call it, that is going to be here on the floor for a vote. Senator Reid has decided he would use his power to make sure that he gets to have an amendment. Actually, he gets to have a couple of amendments and gets to gut the language that would defund ObamaCare, which will be on a party line vote. When I ask for unanimous consent to bring up amendments that have broad bipartisan support, including one which has been supported by two-thirds of all of the Democrats and every Republican, I am not allowed to offer that amendment. We have a completely dysfunctional Senate. It is manifesting itself very clearly today. Frankly, given where this is leading, given the fact that one party here is not given an opportunity to weigh in and engage in this debate and offer amendments, I cannot support cloture on the underlying bill. I yield the floor.

Mr. TOOMEY. The Senator from Indiana pointed out exactly correctly the nature of this tax. It is extremely unusual that we choose to punish a company based on its sales, irrespective of whether it is making any money at all. Senator Coats observed that this is a 2.3 percent tax on sales. I want to touch on some of the real world consequences that are happening right now in Pennsylvania because this tax went into effect on January 1. It is happening now. Here is what is happening in Pennsylvania: Fujirebio Diagnostics in Mahler, a world leader in the production of diagnostics that detect cancer, had to put on a hiring freeze. They had been hiring. They were planning on more hiring. They cannot do it now. So there is a hiring freeze there. Cook Medical in Pittsburgh, PA. They manufacture pacemakers. They had plans to build five new plants over time in the United States. Those plants are all on hold. Everything has been put on the shelf; no new plants as long as they have to contend with this. Boehringer Laboratories in Phoenixville, PA. They make surgical equipment. No new hires. Hiring freeze at a time when our unemployment is so unacceptably high, so many people looking for work. B Braun. They make a wide range of medical equipment, located in the Lehigh Valley in Pennsylvania. They have a hiring freeze and immediate and drastic cuts in research spending. What else can they do? Such a huge new chunk of their revenue has being taken. This is an ill-conceived tax. It is costing us jobs. It is costing us innovation. It is costing us in the quality of health care. Finally, everybody gets that, as evidenced by 79 Members of this body voting to repeal it. We are denied the opportunity to have a binding vote. It is shocking to me.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, I rise this morning to address the energy efficiency bill we have been attempting to take up in this Chamber, and in particular an amendment I would like to offer to this bill. I want to strongly urge my colleagues to please get on this bill. I really wish we would do some business here in the Senate. I think we are on our way to our second consecutive week where we have not had a single vote on a single legislative matter--at least not that I can remember--and we have important legislative issues to deal with. I happen to think this is one of them. There are many others. This is just not acceptable, that we go on and on without addressing the challenges we need to address for the sake of the people we represent-- the American people. I want to talk about one small particular but important aspect. I have an amendment I have filed--and I thank my cosponsors, Senators Coburn, Flake, Risch, and Ayotte for joining me in this effort--which is an effort to repeal the renewable fuel standard. I want to talk about why it is so important we do this. First of all, the renewable fuel standard is an old law that is on the books. It is a Federal Government mandate that we burn a certain amount, a certain volume of ethanol in our gasoline. We have gotten to the point where this year this mandate will require that over 40 percent of all the corn we grow in America be turned into ethanol and burned in the gasoline tanks of our automobiles. We are literally burning our food. That is what we are doing on a very large scale. The way this law works is it requires increases every year in the amount of ethanol we are forced to burn through our gasoline tanks. This policy is harmful to our environment, it is unambiguously raising food prices, it makes it more expensive to fill up at the gas pump, and it is threatening good-paying jobs in Pennsylvania and other States. It is time for this to go. What my amendment would do is completely repeal this renewable fuel standard, which is overdue. I know there is broad support for peeling this back, and I hope there is a majority in this body who would support this amendment if we could only get onto it. So I do very much hope we will. Let me explain how problematic this is. First of all, let's remember the history. The whole idea behind creating this renewable fuel standard--behind forcing people to take corn, convert it to ethanol, and burn it in their car engine--was that this was somehow going to be good for the environment. That was the idea at the time it passed. In fact, it is clear that this is bad for the environment. This is counterproductive from purely an environmental point of view. The Environmental Working Group put out this statement: The rapid expansion of corn ethanol production has increased greenhouse gas emissions, worsened air and water pollution, and driven up the price of food and feed. This is the Environmental Working Group that came to that conclusion. It is widely acknowledged that using corn ethanol instead of gasoline actually creates more carbon dioxide emissions--the greenhouse gas emissions about which many people are concerned. You have more of that when you burn ethanol than when you burn gasoline. In fact, the Clean Air Task Force estimates that carbon emissions from corn ethanol between 2015 and 2044, on the path we are on now, would exceed 1.4 billion tons. That is 300 million tons more than if the energy were supplied by gasoline instead. So it is counterproductive from a carbon emission point of view. We have a chart here that quotes a conclusion from a study at Stanford University that indicates the harm that ethanol does directly to human health. Vehicles running on ethanol will generate higher concentrations of ozone than those using gasoline, especially in the winter . . . Finally, in 2011 the National Academy of Sciences stated: Projected air quality effects from ethanol fuel would be more damaging to human health than those from gasoline use. I understand there was a time when we didn't know this, when we had a different impression about the health and the air quality implications of using ethanol, but we don't have that excuse anymore. It is now clear that using ethanol instead of gasoline is net harmful to the environment and harmful to human health. That all by itself is a pretty good reason to reconsider this, but there are more reasons. One is the fact that it is more expensive to produce ethanol than it is to produce gasoline. So not only is this harmful to our health, but it costs more to do it. The Wall Street Journal estimated that in 2014 the renewable fuel standard will increase the per-gallon cost of gasoline by anywhere from 10 to 25 cents. That adds up. That could be over $300 a year on average for the average family. It is billions of dollars across our economy. That is a deadweight loss. No good comes out of that extra cost. It just reduces the standard of living of everybody who is forced to bear that cost. In addition to increasing fuel prices, it increases food prices-- which stands to reason. If you take 40 percent of all the corn produced in America and you burn it, there is that much less corn available for food. And corn is an incredibly basic and important source of food both directly and indirectly. This phenomenon alone--the diversion of corn for ethanol production--is deemed by many scholars who have looked at this as costing maybe as much as a full percentage point a year for the average family. That is on the order of over $150 per year that we force people to pay in the form of higher food prices alone. Another example is the indirect way in which higher corn prices filter into the rest of the economy. The fact is that feed grain is typically half the cost of raising livestock, and corn is the dominant feed grain in America. The USDA's Chief Economist stated that the renewable fuel standard increases corn prices between 30 and 40 percent. And it got so bad, it got so absurd that in 2012 there were farmers feeding their cattle candy because it was cheaper to buy candy than to buy corn. How absurd is it that the Federal Government policy is driving this kind of behavior? It makes no sense at all. Another fact about ethanol is that it is harmful to motors. It is harmful to engines. The reciprocating piston engines we use in our vehicles--motorcycles, boat engines, and others--are designed to burn gasoline, they are not designed to burn ethanol. And the EPA has acknowledged that ethanol is harmful to these engines because ethanol is corrosive. The EPA acknowledged that ``unlike other fuel components, ethanol is corrosive.'' It is that water mixture that does damage to engines. AAA has warned that raising the ethanol content in fuel further--which is what current law has in store for us--will damage 95 percent of the cars on the road today. The last thing I would point out is that this policy threatens good- paying jobs. I visited a refinery in southeastern Pennsylvania, a refinery that employs hundreds of workers in good-paying jobs providing the gasoline we need to move our economy, to move our families, to get to and from work, and to do all the things we need to do in life. Their ability to be a viable, ongoing refinery is jeopardized, it is threatened by the renewable fuel standard. I wish to read a letter from the AFL-CIO business manager, a gentleman named Pat Gillespie whose concern is the job security of the workers he represents. And this is a refinery that was shuttered and in danger of never reopening. It took an amazing effort by the stakeholders in this community to make this viable, and it is viable right now and it is employing hundreds of workers in Delaware County. The point that he makes is this: Our resurrected refinery in Trainer, Pennsylvania once again needs your intercession. The impact of the dramatic spike in the cost of the RIN credits from four cents to one dollar per gallon will cause a tremendous depression in our refinery's bottom line in 2013. Of course in the building trades we need them to have economic vitality to bring about the construction and maintenance projects that our members depend on, and the steel workers of course need the economic vitality so they can maintain and expand their jobs with the refinery. We need your assistance, your help with this matter. I want to provide the help that they need, that Pennsylvanians need, that we all need from this ill-conceived policy that clearly has no place in the United States anymore. The help is in the form of this amendment. This amendment solves the problem. It repeals this ill- conceived standard completely. It would go away. I know there is bipartisan support for this amendment. I have several colleagues who cosponsored this amendment. This is our opportunity to pass this amendment. To recap, this is bad policy on every possible front. The renewable fuel standard--forcing us to burn so much of our corn in the form of ethanol--is harmful to our environment. It is harmful to human health. It increases food prices. It increases fuel prices at the pump. It damages the engines on which we rely. It jeopardizes jobs. What more arguments do we need to bring an end to this misguided program? We know this. We have known this for some time. Now is the time to act. So I urge my colleagues, let's get on the bill. Let's have amendments. Let's have lots of amendments. If we had spent the last week mowing down amendments instead of arguing about them, we would be done by now. We could have processed many dozens of amendments easily, and one of them could have been this one. I don't think it is too late. We could still get on this bill. We could still do something that would be very sensible for our environment, for our economy, for consumers, for our health, and for the sake of our jobs. Let's repeal the renewable fuel standard. Let's do it by adopting my amendment, and let's do that by getting on this bill. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. TOOMEY

Mr. TOOMEY. Madam President, I rise to describe a motion to recommit that I am going to offer. Let me start by providing a little bit of context to why I am offering this motion to recommit. That has to start by reminding my colleagues about the Budget Control Act that was signed into law in 2011, about 2 years ago. The Budget Control Act--which, again, is an act, not a bill--has been signed into law. It is the existing law of the land. It established spending caps--limits on discretionary spending--in a modest effort to try to bring out-of-control spending somewhat under control. So we have a statutory limit on how much the Federal Government is permitted to spend. It is a limit on both the defense side and the nondefense side, but it is a limit. It is an attempt to control that which has been so difficult to control in this town, which is Federal spending. I should point out that even if we abide by the spending caps that are in the existing law, if we follow the law, we are still going to run a huge deficit. Next year the deficit will be about $560 billion. That means that next year, if we have the spending discipline of living within the law, we will still increase our total outstanding debt by more than $\1/2\ trillion and our debt as a percentage of our economy will rise to 76 percent--76 percent debt-to-GDP ratio. Our debt-to-GDP ratio is already higher than it should be. It is already costing us economic growth and jobs. It is going to rise further. That is assuming we stick to the spending cap. I should point out that the way we got to this point is just spending on autopilot, just growing spending every year. I will give one example. Since 2000, total Federal spending has doubled. That is the scale of the increases in spending we have been experiencing. That is why we have been running huge deficits. We now have a massive debt. The accumulated debt is causing this big drag on our economy and preventing us from having the kind of job growth we ought to have. Here is my big concern. The bill we are considering right now, the Transportation-HUD bill, puts us on a direct path to bust the caps, to break the law, to spend even more than the statutory limits we put in place just 2 years ago. Let me walk through how we get there. The fact is that under the Budget Control Act the cap that is set on discretionary spending for the fiscal year we are currently debating, 2014, is $967 billion. That is the number. If you add up the spending sums for all of the appropriations bills my Democratic friends want to pass, it adds up to $1.058 trillion. It is $91 billion more spending than is permitted under current law. It busts the caps by almost $100 billion. We cannot afford this kind of spending. We cannot afford the spending we are currently contemplating, much less nearly another $100 billion. Now, I should be clear. Any single bill does not bust the caps all by itself. It is what they do in combination. But this bill is one of a series that in combination is designed to bust the caps. All you have to do is add up the total spending in each bill, and you get a number that is much greater than the cap. So it is very clear. This particular bill, by the way, is a huge increase. The Transportation-HUD bill spends over $54 billion in its current form, as currently contemplated. That is $5 billion more than in 2013. That is a 10-percent increase in just 1 year. It is almost $10 billion more than what the House proposed. It is even more money than what the President of the United States asked for in his own budget request. He did not ask for this much money. Yet here it is on the Senate floor, a bill that busts the cap, increases spending dramatically, and spends more money than the President even asked for, at a time when we are running huge deficits that are costing us economic growth. I think this is a very bad idea, so I have a motion. I am grateful to have the support of many of my colleagues, including Senator Shelby and Senator Hoeven, both who are appropriators. I think Senator Hoeven is intending to speak in support of this motion. Let me explain clearly what it will do. What my motion will do is send the bill back to committee with instructions to lower the spending in the bill to $45.455 billion. That is the number that would be consistent with the spending caps. It would allocate an amount of money to this appropriations bill, the Transportation-HUD bill, in proportion to what the Transportation-HUD bill spends under the current fiscal year. It would do that for the next fiscal year. I am not suggesting that I would go through and line by line make all of the individual adjustments within the bill. I would leave that to the committee that has the most expertise, the Appropriations Committee. Let them do their work, but let them do it in a way that ends with a product that is consistent with the law, consistent with the spending caps. One point I should make about the spending caps in the Budget Control Act--I think there are some folks in this town who mistakenly think that since deficits have gotten a little smaller in recent years than they were in the past few years, somehow we do not have a deficit problem anymore and we can just crank up spending. I have to say I think that is a profoundly mistaken view. We still have a huge problem with the spending path. A $\1/2\ trillion deficit is a devastatingly large deficit. As bad as that is, several years in the future, under current projections--again, this assumes that we live within the law-- within a few years these deficits start to explode again even beyond the current levels, which are already unacceptable. So I think this is very important. This is the first appropriations bill the Senate is considering this year. This is the one that is going to determine whether we are going to go down a path of disregarding the bipartisan, Presidentially signed law of the land which is in existence right now. This bill is designed to be part of a process to bust that wide open so that we spend more money that we can't afford. That would be a huge mistake. This is a motion to recommit back to the committee, report out a bill where they can establish the priorities and the allocation within the limit but set the limit at a level that is consistent with the caps. I move to commit S. 1243 to the Committee on Appropriations with instructions to report back with such changes as may be necessary such that total budget authority for fiscal year 2014 is not greater than $45.455 billion. I ask for the yeas and nays.

Mr. TOOMEY

Mr. TOOMEY. Madam President, I rise to speak for a few moments about the cloture vote we just had and the confirmation vote that is upcoming. First of all, let me start by saying I think Mr. Hochberg is a good, capable, and competent person. The point I am making is that the candidate for President of the Ex-Im Bank, for whom we just granted cloture and are likely to confirm, is a capable individual. I voted against cloture, and I am going to vote against this confirmation. It is not about him. I wish to explain what this is about for me and why I think this is a lost opportunity. Precisely, it is this: By invoking cloture, as we have just done, and confirming Mr. Hochberg, as we are no doubt about to do, I think we are going to miss a big opportunity to insist on some modest reforms that are necessary at the Ex-Im Bank and we are going to miss an opportunity to pressure the administration and the Ex-Im Bank to follow existing law in ways that are not currently being followed. I wish to touch on a couple of these. First of all, just by way of background, a reminder about the Ex-Im Bank: This is a taxpayer risk. This is a bank that makes taxpayer- backed loans and guarantees to countries and companies that buy American products. In 2012 we reauthorized the ongoing existence of the Ex-Im Bank and increased its lending authority to $140 billion. Now, not only are taxpayers taking a risk every time a loan is made by the Ex-Im Bank, but the taxpayers are systematically being undercompensated for that loan. The pricing on these loans is necessarily not reflective of the full risk to the taxpayer. How do we know that? Because if they were fully pricing in the risk, then the Ex- Im Bank wouldn't have a competitive advantage over other private banks. They would be more than happy to finance exports. In fact, the export bank exists for the purpose of subsidizing these exports, and they do it in the form of consciously and intentionally underpricing the loans so that the taxpayers do not get an adequate compensation and certainly not a market compensation for the risk they take. That is just the reality. That is the nature of the Ex-Im Bank. I would also point out that Ex-Im Bank's inspector general issued a report in September about some of the issues they discovered in the management of the Ex-Im Bank. They recommended that the Ex-Im Bank undergo stress testing. We require this of all of the big private financial institutions. They require that they go through all kinds of analyses about what would happen to their institutions under different economic and market circumstances that could occur, and then we evaluate how well they hold up to the stress of changes in interest rates, changes in economic conditions, and so on. The Ex-Im Bank has promised they will do this, but we haven't seen any results. The inspector general also suggested some at least soft limits on concentration because the Ex-Im Bank is massively concentrated in a single industry. Almost all of the financing it provides is in a single industry, and that creates a risk to the taxpayers, of course, if there is a problem in that industry. The Ex-Im Bank has rejected considering any concentration limits. The third thing I would point out is that the inspector general's report suggested that the board have more oversight authority. The Ex- Im Bank has not agreed to increase the board's oversight authority. There is another problem with the Ex-Im Bank, it seems to me; that is, by its very nature it picks winners and losers in ways that are inappropriate. I will give a few examples. Because it is a government entity, it is ultimately controlled by the political class and its activities ultimately get politicized. It has already happened. For instance, in an entity that is supposed to be all about subsidizing exports for job creation purposes, there are mandates that a certain amount of their business has to be green activity. It has to be what some people think is acceptable or preferable in the energy space. That is a judgment which has nothing to do with maximizing overall exports. It is a political decision that is imposed on the Ex-Im Bank because politicians can. There is also a mandate on small business, which is to favor one sector over another. There was an amendment when we were considering this bill. One of our colleagues offered an amendment that would force the Ex-Im Bank to make sure a certain amount of their business was subsidized loans to African companies and countries. I am sure this Senator has a very sincere interest in supporting Africa in various ways. That is fine if he has that interest, but is the Ex-Im Bank the vehicle we are supposed to use to do that? Let's keep in mind that when we establish a minimum statutory lending hurdle for some geographical area and Ex-Im is not there, they have to lower their standards to reach that goal, so it increases taxpayer risk for this political goal. My point is that it is inevitable, it is guaranteed, it is already happening that this process becomes politicized, and that is not a good idea. There is another problem with the activity of the Ex-Im Bank, which is that taxpayer-backed loans and guarantees also inevitably help some American companies at the expense of others. That is the nature of this, and that is a problem. One clear example is commercial air carriers. We have American companies that are airlines, they are commercial carriers, and then there are foreign companies that do this as well, and they compete directly against American carriers. Well, if you are a foreign airline, you get the Ex-Im Bank subsidy loan to buy your aircraft, and if you are an American airline, you don't. This happens. It happened recently. Air India got a $3.4 billion loan subsidy from Ex-Im Bank so they can buy their aircraft, and Air India competes directly with American companies that are not eligible for the loans because it is not considered an export. These are the sorts of unintended consequences that occur when the government creates these mechanisms for meddling in the markets. By the way, under current law the Ex-Im Bank is required to provide an analysis and make the analysis public about any adverse impact on American companies when they engage in this sort of activity, and we haven't seen that analysis. In fact, we have a court decision that criticizes the Ex-Im Bank. The court of appeals found that they had, in fact, failed to comply with this law about assessing the negative financial impact on U.S. companies; nevertheless, they are continuing to make these loan guarantees in this context. All of these problems have been discussed in the past. We have had this debate before. One of the very constructive things we did in the 2012 reauthorization of the Export-Import Bank was that we said: What is the reason--why do we do all of this? The proponents always give the same argument--it is always the same--and it is that other countries around the world do this to subsidize their exports, and if we don't subsidize ours we will be at a competitive disadvantage and we can't have that. That is the justification we always get. One can question the wisdom of that justification. We could have a big debate about that. But let's put that aside for a second because there is a potential solution to that problem. It is that in global trade talks and bilateral and multilateral trade talks, we, the United States--the world's biggest trading country, the world's biggest economy--could insist on a process by which we have a mutual wind-down of this economically unhealthy activity. The countries of the world that have these export-subsidizing banks could mutually agree to phase them out. Then we wouldn't have to do it because they do it, taxpayers wouldn't have this risk, and we wouldn't be unfairly benefiting some companies at the expense of others. We could phase this out. In fact, that is exactly what the 2012 authorization bill requires. It requires the administration to begin negotiating with our trading partners for a mutual phaseout of all export subsidies. I believe that is the right solution to this admittedly difficult problem. Let's all agree we are going to phase out this activity. Well, despite the fact that this mandate is in the reauthorization bill we passed a year ago--it is the law of the land--it is not happening. It is just not happening. There are no such discussions under way. There are no such negotiations. This is certainly not a priority of the administration's trading activity. I am not sure it exists at all as a priority. This is the main reason I came to the floor this morning and voted against cloture. Cloture--the requirement to get the 60 votes to cut off debate to then consider the vote on the underlying nominee--is a very important tool. If we had held 41 votes, 41 Senators who refused to agree to cut off debate, the administration would have been in a little bit of a pickle because by the end of this month, in the absence of a newly confirmed President, the Ex-Im Bank couldn't do any business. So what would have happened? Would the Ex-Im Bank have just shut down? No. That wasn't ever going to happen. But what might have happened is we might have had a discussion: Can we get the administration to actually begin the negotiating they are supposed to do under existing law? Could they please begin to observe the law? Could the Ex-Im Bank actually begin to respond to the inspector general's reports? And in the pressure, frankly, of this moment, I think we would have had progress. Instead, we have voted for cloture. I think later today we are going to vote to confirm the nominee, who, as I said, is a very capable, very competent individual. So none of this is going to happen. What we are going to do is confirm the status quo, continue business as usual, business as it has been. This, of course, occurs in a context, right? It occurs in the context of this argument we have been having about whether Republicans have been obstructing nominees, and I think, frankly, it infects the judgment about how Senators might consider voting on something such as a cloture measure. I would just remind everybody that going into this discussion earlier this week, the Senate had confirmed 1,560 of the President's nominees and was blocking 4--1,560 to 4. Some are suggesting that is an outrageous activity on our part because it denies the President the opportunity to assemble his team. Really? He has 1,560 confirmed, and there are 4 we are holding. That works out to 99.7 percent of the President's nominees confirmed, and we are portrayed as preventing the President from assembling his team. I completely reject that characterization. I think the President has enjoyed a tremendous opportunity and reality of getting his team in place, getting them confirmed. We ought not relinquish the power the Constitution gives to the Senate to advise and consent. Remember, the Constitution doesn't just say that the Senate shall advise, it says advise and consent. ``Consent'' has a very specific meaning. If we do this automatically and routinely and we think that--I guess those who object to our approving 1,560 and objecting to 4--it seems to me the implication is that we are supposed to simply routinely rubberstamp everyone, there can't be any objections ever, whatsoever. That is not what the Constitution calls for. As a matter of constitutional principle, that is a very flawed analysis. I wanted to speak this morning because this is a very real, specific case of where, had we exercised more fully, in my judgment, our opportunity to deny cloture, we would have made a little bit of progress in better observation of existing law, further reducing risk the taxpayers take, and getting the Ex-Im Bank to comply with some of the recommendations in the inspector general's report. I wanted to share that. I know how this vote is going to go. I know Mr. Hochberg is going to be confirmed. I hope we will be able to make progress anyway, but I am sure we would have had a better chance of making meaningful progress if we had used this moment. As we consider future nominees, I hope we will remember that this is a fundamental and important role for the Senate to play--to use confirmation as a moment to focus the attention of the administration on what is important to our constituents, to our taxpayers, and I hope we won't relinquish that opportunity. I yield the floor.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, I wish to begin by commending my many colleagues who put a lot of time and effort into this bill and attempts to refine it through this amendment process. But I have to say, with all due respect, I think a great portion of the debate we have been having in this body misses the fundamental point, the most important aspect of what we ought to be addressing in immigration. We have spent a lot of time working on and talking about what we do with the people who are here illegally, and there is a path to citizenship in this underlying bill for these folks. We have talked an awful lot about border security. And border security is an important issue. But I am strongly of the view that while that is important, border security reform is not sufficient to solve the immigration problem we have. I would point out that however high we choose to build a wall on our border, someone can always build a ladder that is 1 foot taller. I think the most important part of this whole debate ought to be about, What do we do about the next wave of immigrants, the next group of people who want to come to this country--future immigration that is certainly going to happen? I think to address that we have to think about what drives the immigration that has been happening, much of which has been illegal. I think what drives it is poor people who have very meager prospects who want to come to a rich country where there are great opportunities. It is people who want to work hard and build a better life for themselves and their families. It happens to be the exact same thing that drove every previous wave of immigration. I think about the 25-year-old Mexican guy in central Mexico who lives in a poor community where prospects are grim and the standard of living is miserable. He wants to come here to build a better life, and he does so in the same way my grandparents in Ireland and my great-grandparents in Portugal wanted to come here, for the exact same reason. My ancestors had very little education and no skills. They came to this country to work, and that is what they did. When they did that, they didn't weaken America, they didn't weaken our economy. They helped to build this country, they helped to build this economy, as all of our ancestors did. That is true of immigrants who want to come here and work, and we ought to have a legal avenue that allows these people who want to build a better life for themselves and, in the process, will build a better America--we ought to allow that to happen. In my view, this bill doesn't go nearly far enough in accommodating the legal immigration we could and should have in this country, especially with respect to low-skilled workers. I will be the first to say the bill makes a lot of progress for high- skilled workers in two big areas: the H-1B visa. The cap that has been too low for too long is significantly raised. And although we have created hoops that people have to go through that are probably unnecessary, it is progress that we have a much higher cap. There is also a new opportunity for graduate students in the STEM fields to get green cards, in time, and that is very constructive. These people come here with a great deal of human capital, intellectual capital, they are trained in fields where we need these skills, and the last thing we should do is send them home to compete against us. It is terrific that this bill addresses that by welcoming these folks. But for the category of low-skilled nonagricultural legal immigration, this bill is wildly inadequate. I say that because the visa that is created to accommodate these folks I think has terribly low caps. In the first year, the cap is a mere 20,000 people. The next year it is 35. It goes up to 75 eventually. These are absurdly low numbers by any reasonable measure. Frankly, you could consider this the anti-immigration bill because these numbers are so low, and this is the category where there is the greatest interest in immigrating. I would point out that early in the last decade, according to the Pew Hispanic Center, there were 800,000 people coming here every year. In 2007, the Kennedy-McCain immigration reform bill was reported out of committee with the support of Senator Kennedy, and that allowed for 400,000 guest worker visas each year. Yesterday or the day before, the CBO came out with a score of this underlying bill, and interestingly they predict that fully 75 percent of all future illegal immigration that is expected under current law will occur under this bill. I think part of the reason is because we are not providing an adequate legal avenue for people who want to come here and work hard. So I have an amendment. I will have more to say about this later, but I want to mention this to my colleagues and urge their consideration. It is an amendment that lifts the cap each year. The first year it takes the cap up to 200,000. It then goes to 250,000, 300,000, and finally 350,000 in the fourth year. I would point out that these caps on the W visas--the low-skilled worker visas--would still be lower in the fourth year than Senator Kennedy agreed to in the first year, a few years ago. It doesn't change the wage protections that are in the underlying bill. A worker would still need a sponsoring employer. All of those provisions stay the same. But we at least would increase the opportunity of people who want to come here legally and work hard to build a better life. I know some of my friends, especially on the other side, are going to oppose this. But I will tell you, if we do not raise the caps for the low-skilled workers who want to come to this country, then the next wave of illegal immigration is guaranteed regardless of what we do at the border. Anybody who thinks more legal immigration of people who want to come here and work hard for themselves and their family is harmful to our economy or to America and we need to keep those people out, as, I am afraid to say, this bill does, that is a profound misreading of American history. Throughout all of our history, from before we even became an independent Republic, the story of America has been one wave of immigrants after another. And while millions of people were coming to this country, what was happening to America? We were becoming richer. Wages were rising, our economy was growing, our standard of living was increasing. That is what happens when people come here to work; they increase the size of our economy. We shouldn't view our economy as a pie where we are all fighting for a slice and we don't want somebody else to get a bigger slice, because what happens when people come here through a legal system to work hard is they increase the size of the pie. They are consumers, they become investors, they become contributors to our economy and to our country, just as every single wave previous to them--including my grandparents and all of our ancestors--did as well. I think this is the central challenge: Fix the broken immigration system so we won't have the next wave of illegal immigration, so we can continue to build a stronger economy that these folks will help to build. I think we need to address these caps as a part of the process of doing that. I want to thank my colleague, Senator Johnson from Wisconsin, for cosponsoring this amendment. I know a number of other colleagues are interested in sponsoring this. I will have more to say about this later in the week or next week, but I think this is a very important topic that we need to address in this debate. Mr. President, I appreciate the time and I yield the floor.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, reserving the right to object, and I will wrap up quickly. I thank my colleague, the chair of the Budget Committee, but as she knows--and I wish to make sure everyone is clear--the motion to instruct conferees the chairman of the Budget Committee is recommending is completely nonbinding. It is nothing more than a recommendation. The fact remains she is insisting on retaining the ability to do a backroom deal that would raise the debt ceiling without allowing any Republican input in this body whatsoever. This is a very bad policy. It was not contemplated in either bill. I would be delighted to go to conference with a budget resolution from the House and the Senate that does contemplate everything that is in those two respective agreements but not some extraneous matter that could be very damaging to our economy that was never contemplated. So I object.

Mr. TOOMEY. Mr. President, reserving the right to object, and I hope I am not going to have to object, but I wish to suggest a very modest and sensible alteration to the UC request from my colleague, the chair of the Budget Committee, so hopefully we can get on to this because I would like to see us go to conference. I was very critical of the 3 years when my Democratic colleagues absolutely refused to do a budget. It is progress that this year they decided to do one. I am glad. I am on the Budget Committee. I think we ought to have a budget, and I think we should go to the conference committee, despite the fact we are very far apart. My Democratic friends supported and voted for a budget with at least $1 trillion of new tax increases, and I strongly oppose that. But I agree that is what ought to be discussed in conference. The budget that was passed uses the big tax increase that was in the budget for additional spending. I strongly disagree with that. But again, that is exactly the kind of thing that ought to be the subject of negotiations in a conference. We are very far apart. I don't know whether we can narrow that gap, but we should try. The only reason I have been objecting, and that some of my colleagues have been objecting thus far, is that our Democratic friends want to insist on retaining the opportunity to use the conference report on a budget resolution to raise the debt ceiling, and I would point out the debt ceiling issue was not even contemplated in the Senate budget resolution. It never came up, it wasn't discussed, there was no amendment, there was no vote, and it is not in the document. In the House budget, the debt limit increase is not contemplated. It is not there. It wasn't voted on. It is completely absent. So consistent with the rules of the Senate, I would simply suggest we go right ahead to conference, that we have a conference on the budget but that we follow the normal procedure of the Senate, which is that matters that are not in either bill, either the House or Senate bill, be excluded from consideration in a conference report so we don't airdrop in some extraneous unrelated matter that was never contemplated by either body. I think that is the sensible approach and necessary because the debt limit is a very important issue. We have a staggering amount of debt we have allowed to accumulate. It is already damaging our economy and is a huge threat and we know the President and many of our Democratic friends think we should just raise that debt ceiling with no strings, no conditions, no reforms. So we have a very real concern this conference committee, as contemplated by my friends on the other side, would be a vehicle for the backroom deal that would allow them to exclude Republicans and come back and jam through a debt ceiling increase with no reforms. In order to avoid that, but so we can go to conference, which I think we should do, I would simply ask that we modify the unanimous consent request as follows; so it would not be in order for the Senate to consider a conference report that includes reconciliation instructions to raise the debt limit. If the chair of the Budget Committee would agree to that modification of her unanimous consent request, then I would agree to it.

Mr. TOOMEY

Mr. TOOMEY. Mr. President, I wish to offer my full support for the nomination of Judge Luis Felipe Restrepo to serve as U.S. District Judge for the Eastern District of Pennsylvania. Before I begin, I wish to take this opportunity to thank Chairman Leahy and Senator Grassley for helping facilitate Judge Restrepo's confirmation hearing and Leader Reid and Leader McConnell for their assistance in bringing his nomination to the Senate floor. I would also like to thank Senator Casey for his collaboration in our bipartisan effort to fill Pennsylvania's judicial vacancies with exceptional candidates. Over the past 2\1/2\ years, we have worked together to identify and recommend eight candidates, seven of whom have been confirmed. The people of Pennsylvania value this bipartisan spirit and I am pleased our joint efforts have led to today's consideration of Judge Restrepo. Judge Restrepo currently serves as a Federal magistrate judge for the U.S. District Court for the Eastern District of Pennsylvania. A native of Columbia, he was raised in Northern Virginia and received his citizenship in 1993. A graduate of the University of Pennsylvania, he went on to earn his J.D. from Tulane School of Law. Judge Restrepo brings a strong record as an attorney in both the public and private sector, which helps explain why he merited a unanimous ``Well Qualified'' rating from the American Bar Association. After working as a public defender, he then practiced law at the law firm of Krasner & Restrepo, focusing on criminal defense and civil rights litigation. After 13 years in the private sector, Judge Restrepo was selected to be a Federal magistrate judge and has served the public in this capacity for 7 years. Aside from his legal duties, Judge Restrepo has devoted significant time to his community. In addition to his involvement with the Make-A- Wish Foundation, he established the Police/Barrio project, which focuses on improving the relationship between the Police Department and Latino Community in Philadelphia. I am very confident that Judge Restrepo's judicial experience, legal acumen, and dedication to public service will serve him well should he be confirmed for the Federal bench. I am pleased to support this highly qualified nominee and I urge my colleagues to vote for his confirmation.