Executive Session

Floor Speech

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Mr. CORNYN. Madam President, this last Monday night we had a remarkable occurrence in the Senate. Democrats and Republicans actually met together, as the Presiding Officer knows, in the Old Senate Chamber, a historic location where the Senate used to meet before we became so large and expanded to 100 Members.

What was so good about that, from my perspective, was that we actually had some communication going on and we learned there were a lot of Senators who were actually frustrated by the way the Senate has been operating. It gave us all an opportunity, there in a confidential setting, to speak our mind and to share our frustrations.

But I think one of the things we have forgotten--maybe not forgotten, but need to be reminded of from time to time--is what makes the Senate unique, not just here in America and our form of government but throughout the world. Sometimes the Senate is referred to as the world's greatest deliberative body. As we all know, it has become less so in recent years. But we all remember the story of the constitutional convention in Philadelphia when they were at loggerheads in trying to figure out how to create the legislative branch. There were some who wanted a single unicameral legislative body, and there were discussions then about whether there actually needed to be a Senate in addition to the House of Representatives, which, of course, would literally be representative of the people based on their numbers as opposed to representing the respective States, which is the function of the Senate.

Late in the convention there was a compromise proposed by the Senator from Connecticut, Roger Sherman, on behalf of the small States. Of course, the small States were worried the big States would gang up on them. Ironically, under this compromise, it is now the small States that gang up on the big States, but that is another story for another day.

Under this Connecticut Compromise, the Senate came to be comprised of two Senators representing each State, no matter how big or how small the State. My State of 26 million people only gets two Senators. The Presiding Officer's State, a smaller State, also gets two Senators. That was part of the Connecticut Compromise back when the country was founded.

The Constitution could not have been ratified without this compromise. It initially failed, but Benjamin Franklin later found a better time to reintroduce it and it passed. But here is the real function of the Senate, and it comes from a story told of a conversation between Thomas Jefferson and George Washington. Of course, Washington had presided over the constitutional convention. Jefferson was in Paris. When he returned, he asked Washington why he allowed the Senate to be formed, because Jefferson had considered it unnecessary. One body based on proportional representation, Jefferson thought, should be enough. Washington then asked Jefferson if he cooled his tea by first pouring it in the saucer, which was the custom of the day. Sure, responded Jefferson. And Washington said: So it is that the Senate must cool tempers and prevent hasty legislation by making sure it is well thought out and fully debated.

I mention that story and recite a little bit of history to remind us the Senate was created not just to be another House of Representatives but for another purpose altogether. That is the other reason why Senators are elected for 6-year terms from a whole State as opposed to just a congressional district where our colleagues across the Capitol run every 2 years from smaller areas. Of course, they are supposed to be much more closely tied to their constituents. We are supposedly given a little more flexibility to take the long view and not the short-term view in how we decide matters.

That is the reason why so many of us were concerned at the threat of the majority leader to invoke the so-called nuclear option. I know for most Americans this is not something that is at the top of their list to be concerned with, but from an institutional and constitutional perspective it is absolutely critical the Senate remain true to the design of the Founders of our country as framed in our Constitution.

As a rationale to invoking the so-called nuclear option and turning the Senate into a purely majority-vote institution, there were claims this side of the aisle had been obstructing too many of President Obama's nominations. But the facts tell a far different story. Thus far, the President has nominated more than 1,560 people for various positions, and only 4--only 4--of them have been rejected by the Senate.

Since 2009, this Chamber has confirmed 199 of President Obama's article III judicial nominees and rejected 2 of them, and 80 of those nominees were confirmed by voice vote, which is essentially a unanimous vote. Another 64 were confirmed by unanimous rollcall votes. Does that sound like a crisis? Does that sound like obstructionism? I think not.

I would like to suggest it is another problem that has caused the Senate to become, in a way, a nondeliberative body and quite dysfunctional. For example, during Senator Reid's tenure as majority leader, an unprecedented number of bills have come to the floor directly from the majority leader's office. Any of us who remember our high school civics lessons know that, ordinarily, committees of the Congress are supposed to write legislation. Then once the committees vote that legislation out, it comes to the Senate floor. Obviously, the purpose for that is to give everyone in the committees an opportunity to vent their concerns, to offer amendments, to debate them, and then to mark up a bill before it comes to the Senate floor so we do a better job and deal with all of the unintended consequences and the like. But during the tenure of the current majority leader an unprecedented number of bills have simply sprung to life out of the majority leader's office.

Many of my colleagues, including Members of Senator Reid's own party, have been left wondering why it is the committees actually even exist in a world where bills simply come to the Senate floor under rule XIV without the sort of deliberation and consideration they should get in committees before arriving here. When legislation arrives on the floor, Senators are routinely denied an opportunity to offer the amendments they see fit and to have debate and votes on those amendments.

To give some perspective--and I know some people will say the American people are not interested in the process, they are interested more in the policy, but this demonstrates why the process is so important to getting the right policies embraced--during the 109th Congress, when this side of the aisle, Republicans, controlled this Chamber, Senate Democrats offered more than 1,000 separate amendments--1,043 separate amendments--to legislation. During the 112th Congress, when our Democratic colleagues were in charge, Republicans were only allowed to offer 400 amendments--1,043 to 400, a big difference.

During the 109th Congress, when Republicans controlled this Chamber, there were 428 recorded votes on Senate amendments--428. In the 112th Congress, there were 224--a little more than half of the number.

Since becoming majority leader, Senator Reid has blocked amendments on bills on the floor no fewer than 70 times. In the language of Senate procedure, we call that filling the amendment tree, but what it means is the minority is effectively shut out of the ability to shape legislation by offering amendments

on the Senate floor. And that is no small thing. Again, I represent 26 million people in the State of Texas. Being a Member of the minority, when Senator Reid blocks any amendment I wish to offer to a bill, he has effectively shut out of the process 26 million Texans. And it is not just my State, it is every State represented by the minority.

As a comparison, the previous Senate majority leader, Senator Bill Frist of Tennessee, a Republican, filled the amendment tree only 12 times in 4 years. So 70 times under Senator Reid, 12 times for Senator Frist. And before him, Majority Leader Tom Daschle, a Democrat, filled the tree only once in 1 1/2 years--once in 1 1/2 years. When Trent Lott was the majority leader, a Republican, he did it 10 times in 5 years. George Mitchell, a Democratic majority leader, did it three times in 6 years. Majority Leader Robert C. Byrd, who was an institution unto himself here in the Senate, did it three times in 2 years. And finally, Senator Bob Dole of Kansas, the majority leader, a Republican, did it seven times in 3 1/2 years.

My point is not to bore people with statistics but to point out the Senate has changed dramatically under the tenure of the current majority leader in a way where Members of the Senate are blocked from offering amendments to legislation in the interest of their constituents. As majority leader, Senator Reid has denied those rights to the minority and the rights of the people we represent. When he refuses to let us offer amendments and debate those amendments, he refuses to let us have real debate and he is effectively gagging millions of our constituents.

One more time I would like to remind Senator Reid of what he promised 6 years ago. He said: As majority leader, I intend to run the Senate with respect for the rules and for the minority the rules protect. The Senate was established to make sure that minorities are protected. Majorities can always protect themselves but minorities cannot. That is what the Senate is all about.

I would also like to remind our colleagues what President Obama said in April of 2005, when he was in the Senate. He said: If the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.

My point is to say the Senate has been transformed in recent years into an image of an institution the Founders of our country would hardly recognize, nor would previously serving Senators who operated in an environment where every Senator had an opportunity to offer amendments to legislation and to get a vote on those amendments; where the minority's rights were protected by denying the majority the right to simply shut out the minority, denying them an opportunity to offer or debate important pieces of legislation.

That is what has happened under the current majority leader, and that is why I believe those meetings, such as the one we had in the Old Senate Chamber this past Monday night, are so important. But we do have to rely on the facts. Facts can be stubborn, but I think our debate ought to be based on the facts and on a rational discussion of what the Framers intended when they created the Senate and its unique role--unique not just here in America but to all legislative bodies in the world.

HEALTH CARE

Madam President, I would like to turn to another topic. Now that we have gotten past the nuclear option, at least for a time, I think it is important we return to important issues that actually affect the lives of the American people in very direct ways, and health care is one of them.

During the Fourth of July recess, the administration unilaterally delayed several provisions of the so-called Affordable Care Act, otherwise sometimes known as ObamaCare. What they did specifically is they delayed enactment of the employer mandate.

It was an implicit acknowledgement by the administration that ObamaCare is actually stifling job creation and prompting many businesses to turn from full-time employment to part time. In fact, there are now 8.2 million Americans working part-time jobs for economic reasons when they would like to work full time. That number is up from 7.6 to 8.2 million since March. And a new survey has found that 74 percent of small businesses are going to reduce hiring, reduce worker hours, or replace full-time employees with part-time employees in part in response to ObamaCare.

The House of Representatives has drafted a bill that would codify the employer mandate delay that the administration announced earlier this month. In other words, they want to uphold the rule of law. Yet the President is now threatening to veto the very legislation that enacts the policy that he himself announced, which is truly surreal. The House bill on the employer mandate would do exactly what the President has already announced he would do unilaterally. There is no conceivable reason that I can think of for the administration to oppose this legislation--unless, of course, President Obama thinks he can pick and choose which laws to enforce for the sake of his own convenience. I am afraid he does believe that, and the evidence goes well beyond ObamaCare.

Yesterday afternoon I listed several examples of the administration's persistent contempt for the rule of law.

I mentioned the government-run Chrysler bankruptcy process in which the company-secured bondholders received far less for their loans than the United Auto Workers pension funds.

I mentioned the subsequent Solyndra bankruptcy in which the administration violated the law by making taxpayers subordinate to private lenders.

I mentioned the President's unconstitutional appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. You don't have to take my word for it; that is the decision of the court of appeals. The case has now been taken up by the U.S. Supreme Court to define what the President's powers are to make so-called recess appointments. But one thing that is absolutely clear is that the President--the executive branch--can't dictate to the Senate when we are in recess, thus empowering the President to make those appointments without the advice and consent function contained in the Constitution; otherwise, the executive branch will have no checks and no balances on its power, and there will be no power on the part of the Senate to do the appropriate oversight and to confirm the President's nominees.

In addition to his recess appointments, I mentioned yesterday his decision to unilaterally waive key requirements in both the 1996 welfare reform law and the 2002 No Child Left Behind Act, and I also mentioned his refusal to enforce certain immigration laws.

What the House of Representatives is trying to do with its employer mandate bill is to make sure that the same rules apply to everyone and that the executive branch and the White House in particular don't just pick winners and losers when it comes to the Affordable Care Act, Obamacare.

If this President or any President is allowed to selectively enforce the law based on political expediency, our democracy and adherence to the rule of law will be severely weakened.

The principle at stake is far more important than the particular legislation we are talking about. It is about the constitutional separation of powers between the executive and the legislative branches of government. By assuming to be able to unilaterally suspend laws that prove inconvenient, the President is showing disdain for those checks and balances on executive authority as well as his oath, where he pledges to faithfully execute the laws of the United States.

Those of us who support repealing ObamaCare in its entirety and then replacing it with real health care reforms that reduce costs and expand patient choice and access to quality care, while protecting Americans with preexisting conditions and saving programs such as Medicaid and Medicare, believe ObamaCare ought to be repealed in its entirety and replaced with commonsense reforms that will actually bring down the costs, increase the quality, and preserve the patient-doctor relationship when it comes to making health care choices.

Our preference would be to repeal the entire law, but we would like to work with the President and our friends across the aisle now that it appears, according to the administration's own actions, that they actually believe ObamaCare is not turning out as it was originally intended in 2010. Indeed, one of the principal architects in the Senate, the chairman of the Senate Finance Committee, Senator Max Baucus of Montana, has told Secretary Kathleen Sebelius of Health and Human Services that the implementation of ObamaCare is turning out to be a train wreck. And indeed it is.

Unfortunately, the President is still refusing to acknowledge the growing evidence that ObamaCare cannot perform as was originally promised. We know that the promise that if you like the health care coverage you have, you can keep it that the President so famously made--that is not true. Seven million Americans have lost their health care coverage as ObamaCare is being implemented and many more as employers are incentivized to drop their employer-provided coverage, leaving American families to find their health insurance elsewhere. The promise the President made that the average cost of health care insurance for a family of four would go down by $2,400--we know it has gone up by $2,400 since then.

Unfortunately, it appears the wheels are coming off of ObamaCare, and the people who will suffer the most are hard-working American families we are pledged to protect and help. What we ought to be doing rather than denying the obvious is working together to try to enact commonsense reforms.

It is not an answer for the President to discard the politically inconvenient portions of ObamaCare and kick off implementation until after the next election. To me, that is one of the most amazing things about the way ObamaCare has been implemented. It passed in 2010, but very little of it actually kicked in before the Presidential election of 2012. So there is no real political accountability, no real opportunity for the voters to voice their objection once it had been implemented, if it had been implemented on a timely basis. And now, because it has proven to be politically inconvenient, the President has proposed to kick off implementation of the employer mandate until after the 2014 midterm congressional elections. That is no way to have accountability for the decisions we make here. That is the opposite.

We are simply urging the President to support the rule of law and to make sure the same rules apply to everyone--apply to Members of Congress and apply to everyone in this great country of ours. But when the administration chooses to selectively enforce or not enforce provisions of the law or issue waivers for the favored few and the rest of us end up with the harsh reality of this law that is not working out as originally intended, it undermines the rule of law and the public's confidence that the same rules will apply to everyone. That shouldn't be too much to ask.

Madam President, I yield the floor, and I suggest the absence of a quorum.

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Mr. CORNYN. Mr. President, I rise to express my deep concerns over the President's nomination of Thomas Perez to be Secretary of the Department of Labor.

When executing its advice-and-consent role, which, of course, is ensconced within the Constitution itself, it is the duty of the Senate to ensure that the people the President appoints to positions of power are of the highest caliber. It is our duty to examine their record and to determine whether each nominee ought to be granted the public trust.

While no one can deny that Mr. Perez has spent his career in public service, I am afraid his record raises serious concerns over his ability to fairly and impartially lead the Department of Labor. Mr. Perez has a documented record of acting with political motivation and being a partisan, selective enforcer of the law. He has been misleading in his sworn testimony and ethically questionable in some of his actions.

For example, during his tenure at the Department of Justice, Mr. Perez has been in charge of the Civil Rights Division, which includes the voting rights section. One would hope that if any part of the Department of Justice would be apolitical, it would be the Civil Rights Division. But under Mr. Perez's watch, the voting rights section has compiled a disturbing record of political discrimination and selective enforcement of the law.

You don't have to take my word for it. All you have to do is take a look at the 258-page report issued by the Department of Justice inspector general earlier this year.

The report cites a ``deep ideological polarization'' of the voting rights section under Mr. Perez. It goes on to say this polarization ``has at times been a significant impediment to the operation of the Section and has exacerbated the potential appearance of politicized decisionmaking.''

Instead of upholding and enforcing all laws equally, Mr. Perez launched politically motivated campaigns against commonsense constitutional provisions such as voter ID both in Texas and in South Carolina.

The Supreme Court of the United States, in an opinion written by John Paul Stevens, who was, by all accounts, an independent member of the Supreme Court, the Supreme Court of the United States held that commonsense voter identification requirements are not an undue burden on the right to cast one's ballot and, indeed, are a reasonable means by which voter fraud is combated and protection of the integrity of the ballot is ensured.

Yet Thomas Perez, working at the Department of Justice, targeted the voter ID requirement passed by the Texas Legislature and blocked it effectively, and the same thing in South Carolina, based on nothing but politics--certainly not based on U.S. Supreme Court precedent that states it was not an undue burden on the right to vote, and it was a legitimate means to protect the integrity of the ballot and to combat fraud.

The inspector general goes on to describe misleading testimony that Mr. Perez gave before the U.S. Commission on Civil Rights in 2010 about a prominent voting rights case, stating that it ``did not reflect the entire story regarding the involvement of political appointees.'' This is why, when you are sworn in as a witness in court, you are asked to tell the truth, the whole truth and nothing but the truth. When what you say is the truth but you leave out other information, it can, in effect, by its context, not be truthful. This is part of the problem with the testimony Mr. Perez gave before the U.S. Commission on Civil Rights.

Going further back, we can see Mr. Perez's ideological roots started as a local official in Montgomery County, MD. During his tenure on the county council, he consistently opposed the proper enforcement of our immigration laws. In fact, he went so far as to testify against enforcement measures that were being considered by the Maryland State Legislature.

Finally, there is the matter of Mr. Perez's quid pro quo dealings with the City of St. Paul, MN. Of course, I am referring to the well-publicized decision of Mr. Perez to withhold Department of Justice support for a lawsuit against the City of St. Paul. He did so in exchange for the city withdrawing a case that it had before the Supreme Court, a case that many would have believed would have resulted in the Court rejecting an aggressive interpretation of the Fair Housing Act that guided Mr. Perez and the Department of Justice.

In fact, that is the reason he did it. He was afraid the Supreme Court would rebuke the Department of Justice's aggressive interpretation of the Fair Housing Act. While this may not have been a direct violation of any laws, it is, at best, ethically dubious.

In summation, we have a nominee for the Department of Labor who has a record of ideological, polarizing leadership; giving incomplete and thereby misleading testimony before official tribunals; and of enforcing the law in a partisan and selective manner--in essence, a ``you scratch my back, and I'll scratch yours'' way of going about the public's business.

As citizens we should ask, Is this the type of person we would want to serve in the President's Cabinet? As Senators, we ought to ask, Is this the best we can do for the Secretary of the Department of Labor?

I believe Mr. Perez's record disqualifies him from running this or any other executive agency of the Federal Government. I fear his leadership would needlessly politicize the Department and impose top-down ideological litmus tests. For all these reasons, I oppose his nomination and encourage my colleagues to do the same.

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