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Nomination of Thomas Edward Perez to be Secretary of Labor

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. HARKIN. Mr. President, today the Senate is now considering the nomination of Thomas Perez to serve as Secretary of Labor. It has been a long road to get here. I am pleased that we finally have the opportunity to consider Mr. Perez's nomination on its merits.

Tom Perez's life is a story of the American dream. The child of immigrants from the Dominican Republic, he lost his father at a young age. He worked very hard at not very glamorous jobs to put himself through Brown University, working at a warehouse as a garbage collector and the school dining hall.

His incredible work ethic helped him graduate with honors from the Harvard Law School and the Kennedy School of Government. With such an impressive resume, Tom Perez could have done pretty much anything with those degrees and accomplishments. He could have made a lot of money in the private sector. But, instead, Mr. Perez chose to become a public servant.

He has dedicated his career to ensuring that every American has the same opportunity he had to pursue the American dream. From his early years at the Department of Justice, where he helped to prosecute racially motivated hate crimes and chaired a task force to prevent worker exploitation, to his time at the Maryland Department of Labor, where he helped struggling families avoid foreclosure and revamped the State's adult education system, Mr. Perez has demonstrated his unwavering commitment to building opportunity for all Americans.

It is this commitment to building opportunity for all that makes Tom Perez an ideal choice for Secretary of Labor. Of all the executive agencies, it may be the Department of Labor that touches the lives of ordinary Americans the most on a day-to-day basis. The Department of Labor ensures that every American receives a fair day's pay for a hard day's work and can come home from work safely in the evening.

It helps ensure that a working mother can stay home to bond with her newborn child and still have a job to return to. It helps workers who have been laid off, veterans returning from military service, others who face special employment challenges to build new skills and build opportunities for a lifetime.

It helps guarantee that hard-working people who have saved all of their lives for retirement can enjoy their golden years with security and peace of mind. As our country continues to move down the road to economic recovery, the work of the Department of Labor will become even more critical. The Department will play a vital role in determining what kind of recovery we have, a recovery that benefits only a select few or one that rebuilds a strong American middle class where everyone who works hard and plays by the rules can build a better life.

Now more than ever we need a dynamic leader at the helm of the Department of Labor who will embrace a bold vision of shared prosperity and help make that vision a reality for American families. I am confident that Tom Perez is up for that challenge.

Without question, Tom Perez has the knowledge and experience needed to guide this critically important agency. Throughout his professional experiences and especially during his work as the secretary of the Maryland Department of Labor, Licensing and Regulation--that would be Maryland's equivalent of our Secretary of Labor. During that time, he has developed strong policy expertise on the many important issues for American workers and businesses that come before the Department of Labor each day. He also clearly has the management skills to run a large Federal agency effectively. Perhaps most importantly, Tom Perez knows how to bring people together to make progress on even controversial issues.

He knows how to hit the ground running, how to quickly and effectively become an agent of real change. That is exactly the kind of leadership we need at the Department of Labor. The fact is, Tom Perez is an extraordinary nominee to serve as Secretary of Labor. I hope the Senate will overwhelmingly confirm him to this vital position.

This is not the first time this body has considered Mr. Perez's qualifications. In October 2009, on a bipartisan 72-to-22 vote, the Senate confirmed Mr. Perez to serve as Assistant Attorney General for Civil Rights. In more than 3 1/2 years in that position, Mr. Perez has skillfully and vigorously enforced our Nation's civil rights laws and has revitalized the Civil Rights Division.

As has been documented by numerous inspector general and Office of Professional Responsibility reports, as well as congressional investigations, the Bush administration had decimated the Civil Rights Division, failed to properly enforce our most critical civil rights laws, and politicized hiring and decisionmaking. That has changed dramatically under Mr. Perez.

As Attorney General Holder has said, Mr. Perez made it clear from the moment he was confirmed that the Civil Rights Division was ``once again open for business.'' During Mr. Perez's tenure as head of the Civil Rights Division, he stepped up enforcement of civil rights laws and restored integrity and professionalism.

I wish to review some of the successes under Mr. Perez's leadership at the Civil Rights Division.

That division settled the three largest fair lending cases in the history of the Fair Housing Act. Let me repeat that--three largest cases in the history of the Fair Housing Act.

As a result, the division in 2012 recovered more money for victims under the Fair Housing Act than in the previous 23 years combined. In total, $660 million in monetary relief has been obtained in lending settlements.

Later in my remarks I will go over some of the allegations made by Senators on the other side about Mr. Perez's handling of another situation of the Civil Rights Division that was also covered by the Fair Housing Act.

I wish to make this clear, that Mr. Perez, as I said, settled the three largest fair lending cases in the history of the Fair Housing Act. This shows he was vigorous in enforcing the Fair Housing Act.

The Civil Rights Division has been involved in 44 Olmstead matters in 23 States, matters that ensure that people with disabilities have the choice to live in their own homes and communities, rather than only in institutional settings. These efforts included four settlement agreements the division has signed with the States of Georgia, Delaware, Virginia, and North Carolina.

The Civil Rights Division obtained a $16 million settlement, the largest ever, to enforce the Americans With Disabilities Act. Reached in 2011, the settlement requires 10,000 bank and financial-related retail offices to ensure access for people with speech or hearing disabilities. Imagine that, almost 20 years after the passage of the Americans With Disabilities Act, we had banks and financial offices that were not making their services available to people with disabilities. The division had to go after them and, as I said, obtained a settlement, $16 million, the largest ever in the history of the Americans With Disabilities Act.

The Civil Rights Division handled more new cases under the Voting Rights Act in 2012 than in any previous year ever. The division increased the number of human trafficking prosecutions by 40 percent during the past 4 years, including a record number of cases in 2012.

The division, since 2009, brought 46 cases to protect the employment rights of servicemembers, a 39-percent increase over the previous 4 years of the Bush administration.

Based on his stellar record of achievement at the Department of Justice alone, Mr. Perez deserves to be confirmed. But despite these accomplishments, some of my Republican colleagues have claimed Mr. Perez should not be confirmed. In fact, we had about 40 who voted against Mr. Perez to move to cloture. Now they are trying to say we should not confirm him.

As the chairman of the committee with oversight jurisdiction, and as chairman of the Appropriations subcommittee that funds the Department of Labor, I can assure you I have looked carefully into Mr. Perez's background and record of service. I can assure everyone that Tom Perez has the strongest record possible of professional integrity and that any allegations to the contrary are totally unfounded.

What is clear is that Tom Perez is passionate about enforcing civil rights laws and protecting people's rights. In my view, that passion makes him not only qualified but the ideal person to be Secretary of Labor.

I do wish to address some of the specific claims we have heard and probably will continue to hear about Mr. Perez.

First, some have harped on the Justice Department's enforcement decision involving the New Black Panther Party. I hope my colleagues don't choose to rehash this matter. Mr. Perez had no involvement in this case, zero. Mr. Perez was not at the Department of Justice when the decision concerning the Black Panthers occurred. The charges were dismissed in May of 2009. Mr. Perez was not confirmed until October of 2009.

Second, some have questioned several enforcement actions related to the Voting Rights Act and the motor voter law, most notably in Louisiana, Texas, and South Carolina. They have pointed to these cases to claim that Mr. Perez is somehow biased in his enforcement of the law.

Again, I hope my colleagues don't try to rehash these meritless claims. The Department of Justice inspector general, an independent inspector general, investigated these claims and recently concluded: ``The decisions that Division or Section leadership made in controversial [voting] cases did not substantiate claims of political or racial bias.''

The inspector general specifically noted that ``allegations of politicized decisionmaking ..... were not substantiated.'' Anybody can make allegations, but you have to substantiate them. The allegations that he was acting in a politically motivated or biased manner were never ever substantiated.

In fact, in the election-related cases Mr. Perez's critics have focused on, the courts ended up agreeing with the Department of Justice's conclusions that the law had been broken. This means that some oppose Mr. Perez's confirmation precisely because he did his job by enforcing newly enacted laws and by pursuing meritorious cases.

Is our confirmation process here so broken that the act, that act of enforcing duly enacted laws, becomes grounds for opposing a nominee?

Third, some Republicans assert Mr. Perez masterminded an improper deal whereby the City of St. Paul dropped an appeal in a case related to the Fair Housing Act in a case called Magner. In return, the Department of Justice decided not to intervene in a False Claims Act brought by a St. Paul resident in another case called the Newell case.

During this debate, I expect we will hear a lot about the alleged millions of dollars Mr. Perez himself personally cost the Federal Government in lost damages because the government did not intervene and prevail in the Newell case.

It is clear from all of the investigations we have done that rather than being the scandal as some Republicans claim, the evidence shows that Mr. Perez acted ethically and appropriately at all times. I wish to go through this because it is important to set the record straight from these kinds of phony allegations that have been made by some here about Mr. Perez.

The Magner case was a case involving the Fair Housing Act. In 2011, the Supreme Court granted certiorari to consider whether that act permits a disparate impact claim. This is a claim challenging actions that are not intentionally discriminatory but, in essence, having a discriminatory effect, called the disparate impact claim.

The case involved an unusual set of facts. Instead of minorities and low-income persons using the Fair Housing Act to challenge improper lending practices, zoning laws, or real estate practices, as is typical with the case with most Fair Housing Act litigation, this specific case involved slumlords--not low-income renters or people being taken advantage of. This case involved slumlords in St. Paul using the Fair Housing Act to challenge the city's efforts to better enforce their housing codes against those slumlords.

Let's look at this case. Lawyers make strategic judgments all the time about which cases should be appealed. Here it is clear why the Department of Justice had a strong interest in this matter. As they have often said, as we all learned in law school, bad facts make bad law. The Justice Department did not want the Supreme Court to consider the viability of the disparate impact principle in a case where slumlords were trying to abuse the law to their advantage. There was too much at stake here.

The Civil Rights Division, under Mr. Perez, had used, applying disparate impact principle, a standard of law recognized under the Fair Housing Act by each of the 11 courts of appeal to address the issue. They had used this, as I mentioned earlier, to reach settlements totaling $644 million against lenders who discriminated against potential homebuyers in violation of the Fair Housing Act. As I said earlier, that is more money for victims under the Fair Housing Act than in the previous 23 years combined. I think it is very clear that Mr. Perez led his division in applying the disparate impact principle to gain a lot of settlements and to help people who were discriminated against.

It was vital to preserve this valuable enforcement tool. Civil rights leaders, as well as Mr. Perez, encouraged the City of St. Paul to withdraw the appeal. Mr. Perez encouraged the City of St. Paul not to appeal the case to the Supreme Court against something entirely appropriate and entirely in the interests of the United States.

When Mr. Perez reached out to the city, the City of St. Paul raised the Newell matter, another case. This was the first time Mr. Perez had heard about the case. At that time the city suggested, the City of St. Paul, suggested it would drop its Magner appeal if the Department of Justice did not intervene in Newell, an unrelated False Claims Act case in which a St. Paul resident, Mr. Newell, had alleged--had alleged--that the City of St. Paul had not met its obligation to provide sufficient minority job-training programs despite certifying to HUD that it was doing so. As I said, it is a little complicated.

At this point, the evidence further demonstrates that Mr. Perez acted with the highest integrity and ethics. After this became known to him, Mr. Perez consulted two ethics and professional responsibility experts at the Department of Justice. It was made clear to him that because the United States is a unitary actor, the two matters could be considered together as long as the Civil Division, which deals with False Claims Act matters, retained the authority over the Newell case, which was a false claims matter, not a civil rights matter.

A written response Mr. Perez received said--this again is from the ethics people at the Department of Justice--``There is no ethics rule implicated by this situation and therefore no prohibition against your proposed course of action''--your proposed course of action, which was to get the City of St. Paul to drop its appeal. At all times, Mr. Perez acted appropriately within the ethical guidance he received.

Further, contrary to some Republican claims, Mr. Perez was not responsible for the Department's decision not to intervene in Newell. In fact, the decision not to intervene in Newell was made by career attorneys and experts on the False Claims Act within the Civil Division--not by Mr. Perez, who was head of the Civil Rights Division. The head of the Civil Division Tony West at all times retained the authority to make the decision regarding the Newell case.

At the time the Supreme Court agreed to hear the Magner case, both HUD--Housing and Urban Development--and the Minnesota U.S. Attorney's Office had recommended intervening in the Newell matter.

After learning of the Department of Justice concerns with regard to the Magner appeal, the general counsel for HUD--Department of Housing and Urban Development--told the House that she reversed her recommendation, stating:

If the decision had been totally mine in October, and there weren't any dealings with the Department of Justice that I needed to worry about in terms of a relationship with the Department of Justice, we never--we never would have recommended intervening, and if it were my decision whether to intervene or not, I never would have intervened.

At the same time, the person who led consideration of the case in the Civil Division was a very senior career attorney and an expert on the False Claims Act, Mr. Mike Hertz.

Although Mr. Hertz has since passed away, colleagues testified that he told them after meeting with the City of St. Paul that Mr. Hertz said, ``This case sucks,'' meaning the Newell case. Again, this was the view of the Newell matter by Mr. Mike Hertz, the leading career expert on the False Claims Act.

So upon learning that HUD had reversed its position, the U.S. Attorney's Office became concerned about the ability to proceed with the case. Staff in the U.S. Attorney's Office told staff at the Department of Justice they were also likely to change their position on intervening in the Newell case.

As the ultimate decisionmaker in the Newell matter, the head of the Department of Justice Civil Division, Tony West, told the House:

[B]y early, mid-January, there was a consensus that had coalesced in the Civil Division that we were going to decline the Newell case. ..... My understanding is that certainly was Mike Hertz' view, it was Joyce Branda's view, and that represented the view of the branch, U.S. Attorney's Office. Also, I think around that time period would be included in that consensus, it was my view too. It was the view of the client agency, HUD.

So what he is saying is, when we looked at this, we found the Newell case was not a very good case. Earlier today, it was suggested Mr. Perez tried to cover up the fact that the Magner appeal played a role in the Department's decision not to intervene. This is not correct.

Despite indicating that they intended to change their recommendation, by mid-January the U.S. Attorney's Office formal decision memo recommending not intervening in the Newell case had not been received. Mr. Perez reached out to an assistant U.S. attorney, leaving a voice message suggesting that the Magner case should not be included in that formal recommendation.

When he was asked about the voice mail, Mr. Perez explained to the House his concern was not with the specifics of what was in the memo but rather was directed at trying to resolve an issue he thought might be the source of the delay. Mr. Perez told the House that when he ultimately spoke to the U.S. attorney:

[He] promptly corrected me and indicated that the Magner issue would be part of the discussion. I said fine, follow the standard protocols. But my aim and my goal in that message and in the ensuing conversations was to get him to communicate that, so that we could bring the matter to closure.

In early February, the Civil Division formalized the decision not to intervene in the Newell case with a written memo. Unsurprisingly, that memo was completely transparent and clearly indicates that the Magner appeal was a factor in the decision not to join the Newell matter, but that the decision is largely based on the flaws in the Newell case.

As Mr. West noted:

[Declining to intervene] was a view we had all arrived to having taken into consideration the numerous factors, including the Magner case, as really as reflected in our memo. I think the memo--the declination memo that I signed, really does encapsulate what our view was.

Republicans claim Mr. Perez singlehandedly cost the United States millions of dollars. But the damage award received from a losing case is zero--zero. According to the Justice Department's leading expert on the False Claims Act, that is likely what the Newell matter was worth--zero. So Republicans say we lost millions of dollars. How can you lose millions when the experts say their chances of succeeding at it were zero?

When the general counsel of the Department of Housing and Urban Development was asked about HUD's interest in recovering funds from the City of St. Paul, she said:

As a hypothetical matter, sure. Did we actually think that there was the capability to do that in this case? No.

To summarize, Mr. Perez consulted with two ethics and professional responsibility experts. Those experts made clear it was appropriate to advance a global resolution of the two cases as long as the Civil Division retained authority over the Newell matter, which it did at all times. Senior career Civil Division attorneys believed the Newell case lacked merit, and the lack of merit to that case was the primary reason for the Civil Division's decision not to intervene.

Based on these facts, I do not know what the controversy is. Mr. Perez acted appropriately and ethically to advance the interests of the United States.

It is no surprise that experts in the legal community have made clear Mr. Perez acted appropriately. As Professor Stephen Gillers, who has taught legal ethics for more than 30 years at New York University School of Law, wrote, the Republican report issued last month suggesting that Mr. Perez acted improperly ``cites no professional conduct rule, no court decision, no bar ethics opinion, and no secondary authority that supports'' this argument. In fact, no authority supports it.

So you can make all kinds of allegations, and the House majority report made allegations, but they have no professional conduct rule, no court decision, no bar ethics opinion, and no secondary authority that supports their allegation. No authority supports it.

So the confirmation process has been thorough. Mr. Perez has been thoroughly vetted. He has been fully responsive, forthcoming, and cooperative, including during a thorough confirmation hearing in my committee, the Health, Education, Labor & Pensions Committee. Mr. Perez's nomination was officially received on March 19, nearly 5 months ago. In contrast, Ms. Elaine Chao was confirmed as Secretary of Labor the very same day her nomination was received in the Senate--I might add under a Democratically led committee.

These allegations are simply that--allegations made of whole cloth. Quite frankly, Mr. Perez has acted ethically and appropriately at all times. Perhaps that is why some are opposed to him. He has been vigorous in enforcing our civil rights laws, vigorous in going after slum landlords and lending agencies that abuse poor people who are trying to get decent housing. Yes, he has been vigilant at that--very vigilant, as I said, getting some of the biggest settlements ever in the history of this division.

Perhaps they are afraid Mr. Perez will be vigilant and strong in his tenure as the Secretary of Labor. We can only hope so. We can only hope he will continue in the tradition set down by the former Secretary Hilda Solis, who did an outstanding job as our Secretary of Labor. A former Member of the House of Representatives, Hilda Solis turned that department around from a department that had been moribund for 8 years.

I can assure everyone that Mr. Perez will always act appropriately and ethically, but he will always act forcefully to defend the rights of people to make sure our laws are enforced--those laws that protect the health, the education, the labor, and the pensions of the American people.

With that, I yield the floor, and I suggest the absence of a quorum.

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