Nomination of M. Patricia Smith to be Solicitor for the Department of Labor --Continued--

Floor Speech

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Mr. DORGAN. Madam President, we are approaching the 1-year anniversary of the fatal crash of Continental Connection flight 3407 in Buffalo, NY, and today the National Transportation Safety Board is actually holding a public meeting to consider the final report they are making on that crash.

I think almost everyone has heard the tragic story of that crash last February 12. Two pilots, two flight attendants, 45 passengers on that airplane, and 1 person on the ground lost their lives. This flight was operated by Colgan Air. The plane was a Bombardier Dash 8-Q400 operated by a captain and a copilot, both of whom had commuted long distances to get to work to make that flight, both of whom had been found to have very little rest before that flight.

The copilot revealed her inexperience in the cockpit recording that I listened
to--inexperience in flying in icy conditions--in the transcript of the voice recordings. The captain failed a number of tests in his career as a pilot. The NTSB is now considering 45 findings and conclusions at a public meeting as I speak.

This morning the NTSB members said the plane and the flight crew were properly certified, and the plane was in good condition before takeoff. They also said the ice buildup that night flying into Buffalo was typical and did not affect the ability of the flight crew to fly the airplane. So while we are waiting for the final conclusions of the National Transportation Safety Board, the members of that board spoke about crew training, pilot fatigue, and pilot error as reasons for the crash.

These are the issues I have been holding some hearings on this past year. The NTSB is going to make recommendations to the FAA. We already know that when they make recommendations, the appropriate agencies don't always pay attention to those recommendations. For example, pilot fatigue has continually been on the National Transportation Safety Board's most wanted list for 19 years; that is, most wanted list of safety recommendations. Let me say that again. For 19 straight years, the National Transportation Safety Board has said ``pilot fatigue'' is on the most wanted safety recommendations list. Yet no one has been listening. Nobody seemed to ring the bell on those issues.

I have held seven hearings on safety in the aviation subcommittee that I chair in this Congress. We have heard from the FAA, the NTSB, pilots, regional airlines, major carriers, and safety experts. We have heard especially from the families who lost their loved ones in that fatal crash, that tragic crash in Buffalo, NY.

Let me be quick to say, we have had, fortunately, reasonably few airline crashes in this country in recent years. It is, generally, a very safe way to travel. But there isn't room for error with respect to these commercially airplane flights. I am going to be holding followup hearings with Senator Rockefeller and others in the Commerce Committee with respect to the NTSB recommendations. We are supposed to have what is called ``one level of safety.'' The NTSB said, in the middle of the 1990s, there is one level of safety for commercial airplane flights in this country. The big, major trunk carriers that are national and international and the regional carriers shall have one level of safety. But it is the case that regional airlines often employ pilots with much less experience, much lower pay, which forces difficult conditions.

In many cases, when you get on a small airplane for a regional flight, you see a crew with obviously much less experience. There are questions, from time to time, raised about the training--questions raised in this investigation, as a matter of fact. We know there are a lot of factors that play into this one level of safety. But I think most people believe that one level of safety standard, at this point, doesn't quite measure up. That is the reason we will examine the recommendations from the NTSB as a result of this crash.

At the time of the crash outside Buffalo, NY, Colgan Air didn't have a remedial training program for pilots. The captain of the flight had failed numerous performance checks over the course of his career and would have made an excellent candidate for remedial training. I know the FAA has been working on the industry to try to get them to do this for a long while. If the traveling public ever begins to have very significant concerns about safety on a commercial airline flight, it will be devastating to that industry. So safety must not just be a perception. Safety on commercial airlines, whether they be the major trunk carriers or regional airlines, has to be something everybody takes seriously and that the American people believe is taken seriously.

I wish to show you a chart that shows something that common sense would tell you doesn't work. This chart shows where Colgan Air pilots were commuting to. You will see they were commuting to Newark, their base of operations. On that fateful flight going into Buffalo, NY, the copilot flew all night long from her home in Seattle, WA, I believe deadheaded on a FedEx plane, stopped in Memphis, TN, changed planes, and got to Newark Airport. After flying all night long, she is now ready to take an airplane on its flight. There is no record of evidence of that copilot having a crash pad or someplace to find a bed and sleep. That is the copilot.

The pilot, on the other hand, came from Florida to Newark Airport. There is no evidence, outside of being in the crew lounge at the airport, that the pilot had a bed in which to sleep or that he had rest. So you have a pilot and a copilot who get on that airplane to take, in this case, those 45 passengers on that airplane on its flight to Buffalo, NY. On that flight, ice built up on the wings, and there is what is called a stick shaker on that airplane. There was rapid shaking of the control stick, which would have said to the pilot you must put the nose down in order to gain additional speed. The pilot didn't put the nose down but pulled the nose up, as I understand it, which is apparently a training issue as well. So you have a pilot and copilot traveling across the country all night long just to get to their duty station, and things happened in the cockpit. In the transcript, the copilot said she had very little experience flying in icing. Both the pilot and copilot lost their lives.

I take no joy in reciting what happened in that cockpit. Their loss of life was a tragedy for their families as well. My point is simply this: What happened here--by the way, I believe five out of the most recent seven airline crashes in our country have been on commuter carriers. This, it seems to me, raises a series of questions that must be addressed--and now I believe will be addressed in recommendations from the NTSB by the FAA, dealing with the issue of fatigue. Who is flying the planes? Are they getting proper rest? It deals with the issue of compensation. Is it the case that you get on a small jet and know that the copilot is making $18,000 a year or $20,000 a year, doing two jobs and flying across the country at night in order to get into an airplane cockpit? Does that give you confidence? The fact is, all these issues are now coming to the forefront--not just of this crash but other circumstances as well--and that requires the FAA to take a hard look at what happened.

At one of my hearings, I showed a Wall Street Journal article, in which Mr. Wychor, an 18-year veteran pilot described the routine commuter flights with short layovers in the middle of the night. He said:

Take a shower, brush your teeth, and pretend you slept.

That is not what you want in the cockpit of an airplane.

A 737 pilot flying to Denver said this, and this is an NBC News quote:

I have been doing everything in my power to stay awake--coffee, gum, candy. But as we entered one of the most critical phases of the flight, I had been up for 20 straight hours.

That is an issue with me. It is one we have to address. I think all thoughtful people in that industry--and I have great admiration for people in the airplane industry. They do a great job. They understand we have to address these issues of fatigue, training, and compensation. That is just the fact.

All I wished to do today was to say the National Transportation Safety Board, I think, does a great job investigating accidents. The family members of the victims of that flight that crashed in Buffalo, NY, have been extraordinary. They have come to every single hearing held on Capitol Hill. They are witnessing, on behalf of their brothers and sisters and wives and children, saying: I don't want Congress or the FAA to let up. We want you to address these issues. That crash didn't have to happen. Our loved ones did not have to die. That is their message.

I say to them: You are doing exactly the right thing. What you are doing--showing up here at all these hearings and keeping the pressure on the Congress and, yes, on the FAA--will save lives. You will not know their names, but you are saving lives. Good for you.

CLOTURE MOTIONS

Madam President, the issue of cloture motions sounds like a foreign language to a lot of people. If you are back home someplace and are getting up in the morning and struggling to get to work and putting in a full day and trying to make enough money to raise your family and get along in life, you
don't know about cloture motions or the 2-day ripening or 30 hours postcloture. That sounds foreign to almost everybody.

This is a graph of cloture motions in Congress. In the 1950s, there were two cloture motions filed in the entire decade. What does cloture mean? If you decide in this body--and you are the most junior Member of this body, you are the last one elected, you are the 100th in seniority and you sit back by the candy door because that is the last desk--I guess we should not talk about a candy drawer, perhaps, but you sit way back in the corner and you are No. 100 in the Senate. Once you are on your feet and recognized by the Presiding Officer, nobody else can take the floor from you--not the majority leader, not the most senior Member of the Senate. The floor is yours and you can speak until you are physically and mentally exhausted. That is the way the rules are; it is the way the Senate works. Washington described the Senate as a saucer that cools the coffee. You pour the coffee into the saucer and it cools. The Senate isn't supposed to work quickly or efficiently. It is supposed to slow things down, take a better look at it, and have more evaluation and ask: Does this make sense for the country?

That is the way the Senate was created. It is hard to get things done. But it is near impossible to get things done these days because of something called a filibuster and cloture motions.

I wish to provide some interesting statistics. This could not happen and wouldn't happen in any city council in America. There is no city council in America where this sort of thing could happen, no matter what the rules were, because they would be laughed out of town. We have people blocking bills they support. Can you imagine that? If you were on the city council and your business was to block things you support and your neighbor said: What are you doing, are you nuts? No, I am blocking things I support because it has a strategy attached to it. What is the strategy, they would say.

Here is the situation: In 2009 and 2010, it is projected we will have 146 cloture motions to shut off debate in this Congress. Let me describe what we are involved with next. We are on one now, by the way. We are now in what is called 30 hours postcloture. We had a nomination that should have been approved in 5 minutes. Those who want to vote against the nomination should vote no. But we could not do that. Instead, those who oppose the nomination for the Solicitor for the Department of Labor, a nomination--instead of having an up-or-down vote, during which those who don't like this nominee should vote no, they said you cannot even have a vote. You have to file a cloture motion and then wait for 2 days and then have a vote and see if you get 60. If you get 60, after you get the 60, we are going to insist you bleed off 30 more hours because the rules allow us to do that. Only then can you have a vote. That is where we are now. We had a cloture vote. It prevailed. Now we are waiting for 30 hours to elapse so nothing can be done during the 30 hours. It is just stalling. So then the 30 hours is done, and we will vote on this. Then we will go to the next nomination.

So this week we will do two nominations, both of which should have taken 5 minutes, if people of goodwill worked together and decided: Here is the agenda; let's bring up these candidates for a vote. And if you like the candidate vote yes; if you don't, vote no.

So the next one is going to be Martha Johnson, GSA Administrator. By the way, this one has been objected to, and it has waited for 7 months. So 7 months ago this President nominated Martha Johnson to be GSA Administrator. April 3, 2009, was her nomination. June 8, the nomination passed through the Senate Homeland Security and Governmental Affairs Committee unanimously. So this nomination was voted on unanimously and approved by the committee, and that was June 8. Here it is February of the year following, and we now are going to get to vote on this nomination that passed the committee unanimously, but not until we are able to shut off a filibuster and then have 30 hours postcloture. It is the most unbelievable thing in the world.

Is this person qualified? Yes, absolutely. She served as the head of GSA during the Clinton administration and is hailed by former and current GSA employees as the ``golden heir of GSA.'' She was the chief of staff back during the Clinton administration. She would be a vast improvement, by the way, over the previous head of the GSA, the previous head of the GSA--and I spoke about her on the floor of the Senate--Lurita Doan.

On April 29, 2008, the Office of Special Counsel for the United States asked that she be disciplined to the full extent for the most pernicious of political activity prohibited by the Hatch Act. She then submitted her resignation, in accordance with that request by the White House. She had been accused of providing no-bid contracts to friends with whom she had extensive personal and business relationships. She and a deputy in Karl Rove's office at the White House had joined in a video conference with 40 regional GSA Administrators after a PowerPoint on polling about the 2006 election, and she said: ``How can we help our candidates?'' This is a nonpolitical office--heading the GSA--in our country.

This person got drummed out of office--and should have gotten drummed out of office--and resigned under pressure. So here is someone who is fully qualified and it is 7, 8 months later and we are finally going to get to have a vote, but only if we go through the motion of filing a cloture petition to end a filibuster. That is unbelievable to me.

Let me give some other examples of what is happening. Here is a bill that was filibustered--the credit card holders bill of rights. There is a filibuster against that by the other side, the Republicans. They filibuster everything--everything. So the credit card holders bill of rights, they went through a filibuster, delayed, and after the delay it passed 90 to 5. Obviously, we had a bunch of folks who said: I am going to lay down on the track until it is inconvenient for everybody, and then I will get up and vote for it.

We have people blocking things they support. You would get laughed out of town in any town in this country if you tried that on the city council.

The Department of Defense appropriations--filibuster. Had to go through the motion of filing--2 days, 30 hours--and then it passed 88 to 10. So, obviously, we had a bunch of folks on the other side who decided they were going to block something they supported, kind of a curious strategy.

The Energy and Water appropriations bill--that was my bill that I chaired--went through filibuster, cloture, and in the end 80 people voted yes. The Fraud Enforcement and Recovery Act was filibustered by the Republicans. Then when it was finally voted upon, after they had delayed it, 92 of them voted yes. Again, we see people blocking things they support. Only in the United States Congress, I guess.

Unemployment compensation extension was the subject of a filibuster, and then 98 people voted yes. People blocking things they support. What a curious thing.

I mean, what do you tell your children if they ask: What was your role, Dad or Mom?

My role was to slow things down. I just wanted to sort of spread glue around the Senate. Not that we don't think it is slow enough the way it is, we want to slow it down even further.

The fact is, people send men and women of goodwill to this Chamber. One of the things I have learned in many years in this Chamber is that almost every desk is occupied by someone who has pretty unique and interesting and special skills to get here. In almost every case, there are people here with very substantial skills. But they are not sent here with an agenda that says: You know what I would like you to do? I would like you to block everything and then vote for it in the end. That is not a message that comes from any State that I am aware of. They are sent here to try to do good things for this country. All of us are. We might have a disagreement about what that means and how to do it, but there shouldn't be any disagreement about these kinds of things.

In the middle of the deepest recession since the Great Depression, seven of this President's high-level nominees for the Treasury Department are not yet confirmed--seven of them. How do you justify that? How do you justify deciding, in the middle of the deepest recession since the 1930s, that you are
going to prevent the U.S. Treasury Department from having a full complement of people who can think through and work through trying to put this country back on track; who can restart the economic engine and put people back to work again? How do you justify deciding we shouldn't have a full complement of people to do that?

We had a fully qualified Surgeon General who was nominated, and that Surgeon General nominee was blocked. And this was after the H1N1 flu had been declared a major health threat. Think of that. That nominee was blocked even after we had a major health threat. We had the Ambassador of Iraq--obviously an important position--blocked during a time of war just when we most needed to resolve some political issues there.

One single Senator on the other side held up the nomination of the Deputy U.S. Trade Representative for 9 months--9 months that was held up--to try to force that U.S. Trade Representative's Office to file a complaint against Canada on some issue. I don't have the foggiest idea what that issue was, but I will tell you this: I would never, and have never, held up a nomination for 9 months in order to try to force something that I insist should happen. That is not the way the Senate is supposed to work.

One Senator on the other side blocked a highly qualified nominee to be Assistant Under Secretary for the Western Hemisphere at the State Department, and it had to do with our relationship with Hugo Chavez, which left us without the person who was supposed to be responsible for coordinating our response to the difficulty in Honduras last year. One Senator held up that nomination on and on and on.

Again, the fact is, as I said, this is called the great debating body, the most exclusive club in the world, and all of those descriptions. But this is not the way it is supposed to work. We have some models of how it is supposed to work. In the old days--and when I say the old days, I mean some decades ago--people would get together and decide what is the major challenge facing our country and how do we work together to find a way to resolve it; not who gets the credit or who gets the blame, but what is needed to be done to fix what is wrong in America. That is the way the Senate used to work. Regrettably, these days, it does not.

Our country rests on the precipice of a very significant cliff. We are still not out of this financial and economic crisis, although I think there has been some stability and we have, hopefully, found some foundation. But at a time when we most need cooperation, we see almost none--almost none. It doesn't. Just read the record: An estimated 146 cloture petitions are filed to shut off filibusters, and on issue after issue after issue we have the minority in this Chamber blocking things they ultimately vote for. How do you explain that--I was against it before I was for it?

Madam President, this country deserves and expects a whole lot better. This country is going through tough times. While I speak here, and while my colleagues are objecting to proceeding on anything--while we are in a 30-hour period where nothing is happening on the floor of the Senate--nothing--a whole lot of people are out looking for work. They are stopping by business after business with their resume, and thinking: Can I find a way? Can I please find a way to get on a payroll and get a job to help my family?

There are a whole lot of folks who need a job, need some hope, need to keep their house, who are struggling. They deserve a lot better from this Congress. The last thing they deserve is a Congress that decides its mission in life is to stop things from happening. The mission for every Senator ought to be to get up in the morning and reach out and see how we can work together to get the best ideas of what both parties have to offer this country. That is happening far too seldom in this Chamber.

It is not my habit to come to the Senate floor to be critical of the Republican side of the Senate. I don't do that often, but I see what is happening. We are sitting here today--and this is a good example of it--for 30 hours doing nothing. Why? Is it because there is nothing to do? No. It is because the other side insists on cloture, insists on the 2 days, then insists on the 30 hours. So what they will have done this week is insist that we will only be able to confirm two Presidential nominees--one is a Solicitor General in the Labor Department and the second is to head the GSA. That is what we will get done this week. That should have been done in 5 minutes, having a vote on those nominations. If you don't like the nominee, vote no; if you like the nominee, vote yes. Dispose of the nominations.

In my judgment, this system is broken, and it can't be 1 person or 10 people who fix it. It has to be 100 people with reasonably goodwill who want to make good things happen for the future of this country.

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

The PRESIDING OFFICER. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

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

The PRESIDING OFFICER. Without objection, it is so ordered.

THE TAX CODE

Mr. DORGAN. Madam President, on Wednesday of last week the President gave his State of the Union Address and talked about a lot of issues. One of the issues he mentioned that is especially important to me is one I have worked on for some long while here in the Senate, and that is changing the Tax Code to begin cutting out and getting rid of the tax break that is offered to companies that shut their American factories and move their jobs overseas. It is strange to most people to hear, but we actually have in the American Tax Code a reward for companies that would say: You know what I should do? What I want to do is shut down my American factory, I want to fire my American workers, I want to move those jobs to China and hire somebody for 50 cents an hour. By the way, if they do that, they actually get a tax break in this country. They get rewarded by the American tax system for moving American jobs to other countries.

That is an unbelievably ignorant and pernicious part of our Tax Code and needs to be changed. I have offered amendment after amendment here on the floor of the Senate on it, and the President in his State of the Union Address last week indicated he believed we needed to do this and do it soon. I could not agree more.

We are talking about jobs a lot in this Congress. We have had some discussions today about jobs again. Senator Durbin and I have worked to put together a jobs package that would try to stimulate and incentivize more jobs, especially small and medium-size businesses to be able to hire people and have the incentive to put people on payrolls. We are working on all of that.

Senator Baucus and certainly Senator Reid and others have been working together with us to put together a jobs initiative. Even as we try to find a way to create more jobs in our country, we still have this backdoor approach in the Tax Code that rewards people for moving jobs outside of our country. Most of us believe what we want to do is see more of those signs that say ``Made in the USA.'' Made in the USA means there is a job someplace here, particularly in a factory that is producing something, that is putting somebody to work to be able to make a living, to provide for their family. No special program is as important as a good job that pays well.

I have both written a book about this issue of moving jobs overseas and I have spoken on the floor so many times people have either nearly or completely gotten tired of it. But the stories are legend of what has happened in recent years. All of the little things we know and have expected to be American made--almost all of those things are gone. Radio Flyer Little Red Wagon--we have all ridden in it. It was a 110-year-old company in this country. They made those wagons for kids in America, made in Illinois. Not anymore. All those Radio Flyer Little Red Wagons are made in China.

Huffy Bicycles--all those people in Ohio lost their jobs. They were all fired and all those bicycles are now made in China. In the book I wrote I told the story about the last day at work at Huffy Bicycles in Ohio and those workers. As they left their parking lot, they left an empty pair of shoes in the space where their car was parked. It was a way for them to say to that company, the Huffy Bicycle Company: You can move our jobs if you want, but you are not going to be able to effectively replace us. Those shoes, in an empty parking space in a big parking lot in Ohio when all those people lost their jobs, were a symbol of what is wrong.

A little company made something called Etch A Sketch. Every kid used an Etch A Sketch. It was also made in Ohio. Not anymore. It is now made in China. The list goes on and on, those American products that are gone in search of 50-cent labor and higher profits.

The people who make these products--Radio Flyer Little Red Wagons or Huffy Bicycles or Etch A Sketch or, yes, even airplanes--the people who make these products ask the question, What is wrong with my work? The answer is nothing is wrong with your work. You just can't compete with somebody who makes 50 cents an hour.

The second question is, Should I have to compete with somebody who makes 50 cents an hour? The answer to that is no, you should not. This country needs a vibrant manufacturing base and it needs to fix this unbelievable tax provision that says if you move your jobs overseas, we will give you a tax break.

In order to remain with a manufacturing base in this country, we need to reward the production of things in this country. ``Made in the USA'' should not be a distant memory. ``Made in the USA'' ought to be something applied to things made here that we are proud of.

The Senator from Washington State is here. She is going to speak in a moment. I will not be long.

But in every circumstance in this area of trade and the movement of jobs, other countries take advantage of us because we allow them to. For example, airplanes--Washington State makes some great airplanes in the Boeing Company manufacturing plants. A country such as China that has an unbelievable trade deficit with us, over $200 billion a year, says to us: If you want China to buy your planes you have to build most of it in China. It doesn't make any sense to me. If we are buying all those products from China in this country when we have something they need, they ought to buy American products to be shipped to China, not say to us you must move your product to be produced in China.

It is going on all the time and this country doesn't have the backbone or nerve or will to deal with it. What we ought to say to other countries is we are going to hold up a mirror and you treat us as we treat you.

If I might make one additional comment on automobile trade. Our automobile industry has been in a very serious problem. We came close to losing our automobile industry in this country, which is so important for our manufacturing capability. This country has a trade agreement with China, with whom we have a $200-plus billion a year deficit in trade. We have a trade agreement with China that says to the Chinese--who are, by the way, ramping up a very large automobile export industry and you will see Chinese cars on the streets of America very soon--we say to China: If you ship Chinese cars to the United States of America you will have a 2.5-percent tariff attached to those cars. But the agreement also says if we ship American cars to be sold in China, they may impose a 25-percent tariff. We have an agreement with the Chinese that says we will give you a 10-to-1 advantage on tariffs in bilateral automobile trade. That is a recipe for undermining America's manufacturing and economic strength and it goes on all the time. Frankly, I am sick and tired of it. One piece of it is something the President talked about last week and that is let's at least cut out this unbelievably ignorant and pernicious provision that says: You move your jobs overseas and we will give you a big tax reward. We will cut your taxes if you move your jobs overseas.

I say to the President: Good for you. Help us shut that provision down. Let's have ``Made in America'' be something we see more and more frequently these days.

I yield the floor.

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