US Senate Committee on Health, Education, Labor, & Pensions

Statement by Senator Tom Harkin On the Nominations Crisis and Nominations to the U.S. Department of Labor and the National Labor Relations Board

Monday, July 15, 2013

*As Prepared for Delivery*

WASHINGTON, D.C. – Senator Tom Harkin today delivered a speech on the floor of the Senate on presidential nominations, including President Obama’s nominations to the National Labor Relations Board (NLRB) and for the Secretary position at the Department of Labor (DOL). The Senate HELP Committee held confirmation hearings on the five nominees to the NLRB and for Thomas Perez to serve as Secretary of Labor, and the Committee favorably reported the nominations in May 2013.

Following is the full text of his remarks, as prepared for delivery.

“I rise today to talk about the critical nominations that the Senate is currently considering.  In all of the talk about these nominations – about the politics of recess appointments or the implications of changes to the Senate rules – I think one thing that has been too often missing from the discussion is a real consideration of who these nominees are and what they have done, and could do, to serve our country. 

“We seem to have forgotten what we are supposed to be doing in fulfilling our duty to advise and consent to Presidential nominations.  We are supposed to be looking at the qualifications of the candidates and determining if they are fit to serve.  The answer with all seven of the nominees before us today is an unqualified ‘yes.’  And that should be the end of our task.  We should confirm them all today and move on to the many other important issues facing this body.

“I want to speak in particular to the qualifications of the nominees that came through my Committee, the Committee on Health, Education, Labor and Pensions.  Let’s take the example of Tom Perez, our nominee for Secretary of Labor.  Without question, Tom Perez has the knowledge and experience needed to guide the Department of Labor.  Through his professional experiences—and especially his work as Secretary of the Maryland Department of Labor, Licensing and Regulation—he has developed strong policy expertise about the many important issues for American workers and businesses that come before the Department of Labor each day.  He spearheaded major initiatives on potentially controversial issues, such as unemployment insurance reform and worker misclassification, while finding common ground between workers and businesses to build sensible, commonsense solutions. 

“His outstanding work in Maryland has won him the support of the business community and worker advocates alike.  To quote from the endorsement letter of the Maryland Chamber of Commerce:  ‘Mr. Perez proved himself to be a pragmatic public official who was willing to bring differing voices together. The Maryland Chamber had the opportunity to work with Mr. Perez on an array of issues of importance to employers in Maryland, from unemployment and workforce development to the housing and foreclosure crisis.  Despite differences of opinion, Mr. Perez was always willing to allow all parties to be heard and we found him to be fair and collaborative. I believe that our experiences with him here in Maryland bode well for the nation.’

“But even beyond these stellar qualifications, Mr. Perez clearly has a passion for justice, and that is vital for anyone who hopes to make a difference at an agency like the Department of Labor. 

“Tom Perez has dedicated his professional life to making sure that every American has a fair opportunity to pursue the American dream.  As the Assistant Attorney General for Civil Rights at the Department of Justice, he has been a voice for the most vulnerable and reinvigorated the enforcement of some of our most critical laws.  He has helped more Americans achieve the dream of home ownership though his unprecedented efforts to prevent residential lending discrimination.  He has stepped up the Department’s efforts to protect the employment rights of servicemembers, so that our men and women in uniform can return to their jobs and support their families after serving their county. 

“As the Senate author of the Americans with Disabilities Act, I am particularly pleased with Mr. Perez's long history of strong leadership on disability rights issues.  While at DOJ, he has helped ensure that people with disabilities have the choice to live in their own homes and communities— rather than only in institutional settings—and to receive supports and services to make this possible. 

“Tom Perez is passionate about these issues.  He is passionate about justice, and he is passionate about fairness.  Like any leader whose career has involved passionate and visionary work for justice, Tom Perez’s career has not been without controversy.  He has had to make difficult decisions.  He has faced management challenges.  As with most public officials, he’s been the target of accusations and mudslinging. 

“I have looked carefully into Mr. Perez’s background and record of service.  I can assure my colleagues that Tom Perez has the strongest possible record of professional integrity, and that any allegations to the contrary are unfounded. 

“I am also deeply disappointed that Republicans are suggesting that Mr. Perez has been unresponsive to requests for information by members of this body.  Nothing could be further from the truth.  Mr. Perez has been as open and aboveboard as he could possibly be.  He has met with any member personally who requested a meeting.  He appeared before the HELP Committee in a public hearing.  He has answered more than 200 written questions.  He bent over backward to respond to any and all concerns raised about his work at the Department of Justice.

“This Administration has also been extraordinarily accommodating to my Republican colleagues.  The Administration has produced thousands of documents.  They have arranged for the interview of government employees and access to transcripts of Inspector General interviews.  They have provided access to Mr. Perez’s personal emails.  They have facilitated almost unprecedented levels of disclosure to alleviate any concerns.   

“The fact is, this nominee has been more than thoroughly vetted.  He has the character, integrity, expertise to lead the Department of Labor at this critical time.  The President has chosen Mr. Perez to join his Cabinet, and there is absolutely no reason why the Senate should not consent to this choice. 

“The same is true for the nominees to the National Labor Relations Board.  These are three exceptionally well-qualified candidates.  Mark Pearcehas been a Board Member since 2010 and Chairman since 2011.  He was previously a union-side attorney in private practice and, before that, a career attorney at the Board.  Richard Griffin is former General Counsel of the Operating Engineers Union and a former career attorney at the NLRB.  Sharon Blockserved as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor and as Senior Labor and Employment Counsel for Chairman Kennedy on the HELP Committee.  She is also a 10-year career veteran at the Board.  I have yet to hear of a single Senator, on either side of the aisle, who questions these nominees’ qualifications.  Indeed, even the ranking member on the HELP Committee, Senator Alexander, conceded at their hearing that these candidates are exceptionally well-qualifiedand that he ‘admired’ their qualifications and their ‘distinguished backgrounds.’

“These nominees have also been thoroughly vetted.  They have met personally with any Senator who asked.  They have answered more than a hundred written questions each.  They have come before the HELP Committee in a public hearing – something that is not at all typical for NLRB nominees.  They have produced every document requested and answered every question they were asked. 

“If we concede that all of these nominees are exceptionally well-qualified, and thoroughly vetted, why can’t they be confirmed quickly? My friend Senator Graham, when speaking about the Senate’s role in the nominations process once said: ‘Our job, as I see it, is not to say what we would do if we were President. Our job, as the Constitution lays out for us, is to advise and consent by a majority vote to make sure the President…is not sending over their brother-in-law or sister-in-law or unqualified people.’  No one before this body today is anyone’s brother-in-law or sister-in-law.  And every nominee is exceptionally well-qualified.  If we are actually doing our Constitutional duty—no more, no less—we would confirm all seven of these nominees today and move on to our legislative work.   

“So why aren’t we confirming these nominees today?  Because the Republican opposition to their service has absolutely nothing to do with the nominees themselves.  It has to do with laws they don’t like and agencies they don’t like.  Republicans in the Senate are literally hijacking the nominations process to try to make changes to laws that they know they could not change through the regular order. 

“Republicans don’t like the National Labor Relations Act, but they know they can’t flat out repeal it.  What’s the solution?  Keep the National Labor Relations Board inoperable by refusing to confirm nominees, regardless of their qualifications.  In this case, one of my Republican colleagues announced his intention to filibuster the NLRB nominees six days before their nominations were announced, openly admitting that his intention was to shut down the agency.   

“In the same vein, while the Consumer Financial Protection Bureau was established by an Act of Congress and signed into law by the President, my friends on the other side of the have stated that they will not confirm anyone, let me repeat that, anyone – to the position of Director until structural changes are made to the Bureau that would effectively gut its ability to perform its basic consumer protection functions. 

“Many Republicans don’t like aggressive enforcement of civil rights laws. They might prefer that these laws were no longer on the books.  But instead of actually attempting to repeal these laws, they are instead suggesting that Tom Perez has become unfit to hold public office simply because he did his job by enforcing these laws. 

“This level of obstructionism is unprecedented in the nominations process.  Repealing laws by fiat is not, and was never intended to be, a part of the Senate’s advise and consent function.  And a Senator’s dislike for a particular law or a particular agency certainly was not intended to prevent qualified and dedicated people from answering the President’s call to serve their country.

“It is the American people who suffer from these unprecedented abuses of process.  The laws that these Boards and agencies enforce are important laws, designed to protect people, and when the system breaks down – or in this case, is intentionally undermined – real people are hurt.

“Let’s take the example of the National Labor Relations Board.  The NLRB must have a quorum of three Board Members to act.  If there are fewer than three Board Members at any time, the Board cannot issue decisions and essentially must shut down.  Although the Board currently has three members, Chairman Pearce’s term expires on August 27, 2013, in a little over a month.  At that point, the Labor Board will be unable to function unless we confirm additional members. 

“Keeping the Board open is vital to employees, employers and our economy.  Closing the Board will deny justice to workers because the agency is often the only place that workers can go for help when their rights are violated.  Without the Board, workers cannot seek justice if they are discharged or discriminated against for talking with colleagues to improve their working conditions or for joining or assisting a labor union.  The only legal avenue available to employees is to file a charge with the Board, and without it, they have no options at all.  If the NLRB can’t function, workers effectively don’t have rights.

“Workers and businesses are similarly affected when the Department of Labor is not fully operational.  The Department of Labor has been without a confirmed leader at the helm for six months.  This is the agency that makes sure workers get paid the wages they deserve, helps returning veterans reenter the workforce, protects our seniors’ retirement nest eggs, and ensures that new mothers can care for their babies without losing their jobs.  This is the agency – perhaps more than any other – that helps families build the cornerstones of a middle class life.    Without a confirmed leader at the helm, it is much more difficult for the agency to pursue innovative policies and enforcement strategies to protect people’s paychecks or keep workers safe on the job.

“The important work done by Consumer Financial Protection Bureau also impacts the lives of hardworking Americans every day. The CFPB was created as part of the Dodd-Frank Act, with a simple idea in mind: that consumers deserve to have a watchdog looking out for their best interests when using financial products and services, from mortgages to credit cards to student loans to payday loans.  With the creation of the CFPB, consumers now have that ‘cop on the beat’ looking out for their well-being, just as we have officials looking out for the health of banks.

“Mr. Cordray has carried out that mission admirably. But, if the Republicans have it their way and he is never confirmed, the CFPB will not only lose its outstanding leadership, it may also lose its ability to adequately oversee nonbank financial services providers like payday lenders, debt collectors, and private student lenders. Without this authority, consumers, community banks, and credit unions alike will all lose out.  Essentially, by refusing to confirm Mr. Cordray, Republicans are using the nominations process to take the teeth out of Dodd-Frank. 

That’s the crux of what we’re talking about here today.  Nullification of laws already on the books through abuse of the Senate’s power to advise and consent to nominations.  It’s appalling and something has to change. 

“I really don’t think that anyone ever envisioned this as an appropriate role for the Senate in the nominations process.  When we are using the nominations process as an opportunity to effectively repeal laws on the books without proper legislative consideration, then the nominations process is hopelessly broken, and I urge Senator Reid to take appropriate steps to fix it.  The nominations process has become the ultimate symbol of a much larger dysfunction that is crippling the Senate, and undermining the public trust in government.

“One does not need to read the abysmal approval ratings of Congress to know that Americans are fed up and angry with their broken government.  The fact that we cannot expeditiously confirm even outstanding individuals like Richard Cordray, Richard Griffin, Sharon Block, Mark Pearce, Fred Hochberg, Tom Perez, and Regina McCarthy to critical agencies only epitomizes the obstruction that has overtaken this body.  A principal cause of dysfunction is the rampant abuse of the filibuster in the United States Senate.  And, it is long past time to make the Senate a more functional body, one that is better able to respond to the nation’s challenges.

“As my colleagues know, I am not a ‘Johnny come lately’ to filibuster reform.  In January 1995, when I was in the minority, I introduced legislation to reform the filibuster.  Even though I was in the minority, I introduced my resolution because I saw an arms race, where each side would simply escalate the use of the filibuster and abuse procedural tools to the point where this body ceased to properly function and stopped being able to address our nation’s needs.  And, sadly, that is what has happened.  But, as evident with the treatment of these outstanding nominees, I believe reform has never been more urgent and necessary.

“Mr. President, the minority leader has recently called the filibuster ‘near sacred.’  He could not be more incorrect.  The notion that 60 votes are required to confirm any nominee is not in the Constitution and until recently would have been considered a ludicrous idea flying in the face of any definition of government by democracy.

“The filibuster was once a tool used only in the rarest of instances—most shamefully to block critical civil rights legislation.  Across the entire 19th Century, there were only 23 filibusters.  From 1917—when the Senate first adopted rules to end a filibuster—until 1969, there were fewer than 50, less than one filibuster a year.  In six years as Majority Leader, Lyndon Johnson faced only one filibuster.  In stark contrast, since 2007, there have been over 400 motions to end filibusters.  In just one day—today—the Minority is requiring 60 votes on seven individuals.  That is more filibusters than Lyndon Johnson faced in his entire tenure as Majority Leader.  The fact is, for the first time in history, on an almost daily basis, the minority, and in many cases just one senator, routinely is able to, and does, use just the threat of a filibuster to stop the majority from even bringing nominees to the floor for debate.

“In today’s Senate, American democracy is turned on its head: the minority rules and the majority is blocked.  The majority has responsibility and accountability, but lacks the power to govern.  The minority has the power, but lacks accountability and responsibility.  This means that the minority can prevent confirmation of essential executive branch officials, and then turn around and blame the majority for not solving the nation’s problems. 

“I firmly believe that we need to restore the tradition of majority rule to the Senate.  Elections should have consequences. 

“No one should be fooled about what this debate is about.  Republicans speak a great deal about ‘minority rights.’  But, the fact is that the current use of the filibuster has nothing to do with ensuring minority rights to debate, or about making sure their voices are heard.  Rather, it has everything to do with obstruction, hijacking democracy, and a pure power grab designed to nullify elections in which the public has rejected Republican ideas and placed them in the minority.  If Republicans want to nominate a Secretary of Labor of their choice, then they should have won the last election.  But they did not win the last election.  And now they have a responsibility to confirm this superbly qualified nominee so the duly elected President can effectively govern, as the American people elected him to do.

“Mr. President, at the heart of this debate is a central question—do we believe in democracy?  Republicans repeatedly warn my own party about advancing reforms because Democrats will find themselves in the minority one day.

“I do not fear democracy.  I do not fear majority rule.  I do believe that issues of public policy should be decided at the ballot box, not by the manipulation of archaic procedural rules.  The truth is, neither party should be afraid of majority rule, afraid of allowing a majority of the people’s representatives to work its will.  After ample protections for minority rights to debate, the majority in the Senate, whether Democratic, or Republican, or a bipartisan coalition, duly elected by the American people, should be allowed to confirm a President's nominees to critical agencies, and to be held accountable by the voters.  That is what the advice and consent process is supposed to be about.

“Mr. President, let us vote—up or down—on these seven nominees today.  That’s what these nominees deserve.  That’s what the American people deserve.  And that’s what democracy demands.”

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