Restoring American Financial Stability Act of 2010
Floor Speech
BREAK IN TRANSCRIPT
Mr. WHITEHOUSE. Mr. President, I wish to speak on a couple of subjects. The first is to express my regret that the supplemental funding to help Rhode Island in the wake of its unprecedented, historic flooding was stopped on the floor today by a Republican objection. I would have hoped that when a true emergency happened in somebody's home State, with a Presidential disaster declaration, and Senators were working to remedy that, the traditional deference for emergency spending would be appropriate.
Senator Reed, as the senior Senator and a member of the Appropriations Committee, is the leader on this issue. He and I will continue to work to get this done for Rhode Island. It is regrettable that conditions on the Senate floor are such that emergency spending--while we still have people out of their homes, flood damage, unprecedented in Rhode Island's history--is not something on which we simply could have agreed.
There are floods in other States, and I assume similar rules will apply when they come forward.
EXORBITANT INTEREST RATES
The second issue I wish to mention, since I see the distinguished chairman of the Banking Committee, is I continue to hope for and argue for the amendment I have proposed that will do something very helpful for something that bedevils constituents in every single one of our States, which is exorbitant, ridiculous interest rates.
Every day in the mail in every one of our States people are opening offerings from the big credit card companies; proposals that, particularly when certain tricks or traps are triggered, kick them into 30 percent or higher interest rates.
It was not too long ago in all of our lifetimes that a solicitation such as that would have been a matter to bring to the attention of the authorities in our States because it would have been illegal under State law to charge that kind of reprehensible interest rate.
We as a Congress never decided we were going to overrule all those State laws; State laws that have existed since the founding of the Republic, a tradition of interest rate regulation that in our culture goes back to the Code of Hammurabi, goes back to Roman law. We never decided as a Congress: Oh, we are not going to allow States to protect their consumers any longer, protect their citizens any longer against exorbitant interest rates.
It happened in a strange, backhanded, almost inadvertent way. It began with a statute in 1863 that said a transaction was governed by law based on where it was located. In 1863, there was not a lot of interstate banking. So there did not need to be a lot of discussion about what ``located'' meant. But by 1978, interstate banking was fairly common. The question came to the Supreme Court, what that word ``located'' in that Civil War statute meant.
In a very unheralded decision at the time, a decision that did not appear to be of any significant consequence, the U.S. Supreme Court said: If you have a bank located in one State and a consumer located in another State, the law is going to be the State of the bank. It had to be one or the other. They chose the State of the bank. The Marquette decision it was called. It involved the Presiding Officer's State, Minnesota. The decision said it is going to be the bank.
It did not seem very controversial. Why not? The problem was that the banking industry began to figure out that there was a loophole. They began to figure out if they could go to the States with the worst consumer protection laws in the country or if they could go to a friendly Governor and say: Hey, I will make you a deal; you clear out your consumer protection laws, and we will come and we will locate a big, high-rise business full of call center people in your State--from that State, they could operate nationally.
Because of this funny 1978 decision from an 1863 law, bit by bit all of the constitutional Federalist States rights protections, where sovereign States have the right to protect their own citizens against outrageous and exorbitant interest rates, became ineffectual. We never decided that as a Congress. If we had that debate, I will venture that it would have gone the other way. It would be preposterous for us as a Congress to look out across America and say: OK, we are going to pass a law that says that the worst State for consumer protection regulation is going to be the State that governs. Obviously, it would create a race to the bottom. Obviously, it would completely disenfranchise home States trying to protect their own citizens from States a country away that, frankly, couldn't care less.
A Rhode Island consumer being victimized is not the problem of the State of South Dakota. It just is not. We would never have passed that law. It would have been an outrageous law to have passed. Yet because of this funny, quirky Supreme Court decision, that is the way the law in practice developed because smart bank lawyers figured out this trick and have taken advantage of it.
It is not just consumers who are getting clobbered as a result. It is also unfair to local banks. A Rhode Island bank is under Rhode Island interest rate laws. But an out-of-State bank, the big Wall Street banks with their big credit card subsidiaries, can play by their own rules, by the worst rules in the country. A Rhode Island bank, a Connecticut bank, a Minnesota bank--they have to play by local rules. It is not fair to local lenders to have this discrepancy, because it is bad for consumers, because consumers all across this country are paying interest rates now that would have been illegal just two or three decades ago, because it is anticompetitive, because it allows the biggest banks to compete unfairly against local community banks, Main Street banks, disadvantaged against these big Wall Street monsters because nobody in Congress ever made a decision nor would we have made a decision that this was OK. It is time we closed this loophole.
I look forward to when we return to have the chance to get a vote on that amendment. I very much hope it will be a bipartisan vote because the principles that the Republican Party has espoused about local control, States rights, protecting local institutions against big, out-of-State national entities, federalism, and our common interests across this floor in consumer protection all suggest that it is the kind of thing that should not divide us Republican against Democrat. This is closing a loophole that never should have existed, that we never would have voted for if we had the chance to vote for it, and that has resulted in immense harm to the public of all of our States as a result of these exorbitant interest rates.
As I said, the interest rate solicitation that is landing in Minnesota today, that is landing in Connecticut today, and that is landing in Rhode Island today would have been a matter to bring to the authorities but for this loophole.
NOMINATIONS
The final issue I wish to talk about--I guess every Member on the other side of the aisle has left town, so there is no Republican in Washington, DC, to come and object to the unanimous consent request I would like to offer for the stalled nominees.
There are now over 100 names on the Executive Calendar, which is the list of everybody who is pending awaiting confirmation by the Senate. At a similar time in President Bush's administration, the number was 20. Those numbers do go up and down, as our Republican friends have said. But just a few days ago, the number was over 80, and the number at the equivalent time in President Bush's administration was 8.
There is a clear, systemic attack on the Obama administration's ability to staff its administration and, thus, govern. What is enabling it is the fact that you do not have to have a reason to oppose a nominee. Why don't you have to have a reason? You don't have to have a reason because you can do it secretly. Nobody even knows that it is you opposing the nominee. If you want to have a systemic attack on a President's ability to govern, what a good thing a secret hold on the President's nominees is.
It has always been around, but it has been abused to a point where we need to be rid of it. We need to be rid of it. The right of a Senator to hold a nominee should be protected, but that Senator should have to stand and say that they are doing it. If they do not have a good enough reason to hold a nominee that they are willing to stand up and disclose it, then that is, frankly, not a legitimate hold. The secret holds have to end.
The situation we are in right now, because there is a Senate rule on point, is that the list of nominees has been read through. Great credit is due Senator McCaskill who has read through the bulk of these--76 of them I think she has been through in the first round.
We asked for unanimous consent on all those nominees. We received objections. I received an objection on a nominee that I asked for from a Senator who had voted for that nominee in committee. He voted for the nominee in committee but came to the floor and objected. The nominee had cleared the Judiciary Committee with zero opposition, and yet on the floor, held and held and held, anonymously--secretly.
Under the Senate rules, when you have asked for unanimous consent and you have had that objection, you have 6 days to come clean on your hold. Do you know how many Republican Senators followed that rule? One did. One did. Senator Coburn of Oklahoma disclosed he had been holding six or seven appointees. That still leaves 100 on the Senate floor right now on the Executive Calendar.
We began early this morning calling them up to see if those holds were still there because after 6 days, you are either supposed to have disclosed it or relinquished it. Sure enough, we kept on getting objection and objection and objection.
So only two things can be true: Either they are just flagrantly violating the rule--what are we going to do?
There is no enforcement mechanism built into the rule. They are just saying: Make us follow the rule. You can't make us, so we are not going to follow it. We know it is a rule--we voted for it, and it passed with enormous bipartisan support. It is a rule of the Senate, but we just choose not to follow it because we get too much advantage out of secret holds. Senate rules don't really apply to us unless you can make us follow them.
That is a sad place for the Senate to be, if that is where we are on this issue. But there are only two alternatives. The other one is that they still have holds, but it is not a hold by the same Senator who had the hold when the unanimous consent was asked for and, therefore, he has, under the rule, relinquished his hold. But what he has done is gone and found another Senator and gotten that other Senator to take up the hold for him. That has been called a couple of things on the Senate floor. It has been called the hold switcheroo.
For those of us who are prosecutors, it looks a lot like money laundering. It is hold laundering. The person who has the real principal and interest with the hold has gotten someone else to aid and abet their scheme to interrupt the process of nominations and to violate the rules by taking on the hold for them and allowing them to dodge the rule. That is not a great way of doing business either.
So whether we have a direct and outright willful violation of the Senate rules--massive violation of the Senate rules--or a scheme to hold-launder--to get people to aid and abet you in your secret hold and dodge the rule that way--neither is a great situation. So we need to fix the rules so this cannot continue. But it is a sad reflection on the use of the secret hold that we are in a circumstance now where the only two possible sets of facts are those two. It just plain isn't right.
If you are here as a Senator, you should follow the rules of the Senate. If you are not prepared to do that, find something else to do. There are plenty of people who would love to serve here. To find another Senator to put a sham hold in to protect your hold so that you can dodge this rule is, frankly, unscrupulous. That is something that, if you could figure out who it was and you could get them in front of a jury and make that case, oh boy. But we don't have the enforcement mechanism. So we have to continue.
But let me tell you who I was going to be asking for. There are two judges for the Fourth Circuit, Albert Diaz and James Wynn. They are a Republican and a Democrat. They are paired for appointment. They cleared the Judiciary Committee with only one opposing vote. One was unanimous and the other was everybody but one. They have been on the calendar now for weeks, and I would like to ask unanimous consent, but I am informed that because there are no Senate Republicans in Washington I am unable to do that right now. But they have been on the calendar for many weeks and there is no reason for them not to be confirmed.
The following judicial candidates, or nominees for a judgeship, are also pending: Jon E. DeGuilo to be a U.S. district judge for the Northern District of Indiana; Audrey Goldstein Fleissig to be a U.S. district judge for the Eastern District of Missouri; Lucy Haeran Koh to be a U.S. district judge for the Northern District of California; Tanya Walton Pratt to be a U.S. district judge for the Southern District of Indiana; Jane E. Magnus-Stinson to be a U.S. district judge for the Southern District of Indiana; Brian Anthony Jackson to be a U.S. district judge for the Middle District of Louisiana; Elizabeth Erny Foote to be a U.S. district judge for the Western District of Louisiana; Mark A. Goldsmith to be a U.S. district judge for the Eastern District of Michigan; Marc T. Treadwill to be a U.S. district judge for the Middle District of Georgia; Josephine Staton Tucker to be a U.S. district judge for the Central District of California; Gary Scott Feinerman to be a U.S. district judge for the Northern District of Illinois; and Sharon Johnson Coleman to be a U.S. district judge for the Northern District of Illinois.
All of these candidates are waiting. They are on the calendar, all pending, all cleared with either unanimous or very strong votes out of the Judiciary Committee, and all blocked. Yet I believe all are supported by Republican Senators from their home States. These are all district judges.
This is a judge who sits in a local district within a State. These are not people who are setting national policy. These are people who are handling local trials, local motions practice, local Federal court litigation.
If you have the support of your two home Senators, and if you have cleared the Judiciary Committee, that ought to be pretty simple. That ought to be pretty simple. But they are being held, and they are being held for a reason. They are being held because, if the Republicans can force the Democrats to burn floor time, it takes floor time away from the work we need to do to rebuild our economy. It takes floor time away from the work we need to do to clean up Wall Street. It takes floor time away from the bills we need to pass to fund our troops overseas. It takes floor time away from our ability to do the work of governing. It is obstruction, pure and simple.
Because there are only so many hours in a day, there are only so many days in a week, and only so many weeks in a month, it is a zero sum game. You take time and make us spend it on these judges, and it is time we can't spend on floor work on the necessary legislation we have to get through. That is why we see these strange votes where we have cloture demanded and all that procedure; and then when the vote is finally taken we have 98 to 0 or where we have had 100 to 0. Why go through all that trouble when we end on a vote of 98 to 0 or 100 to 0? It is because there are ulterior motives. It is to burn the floor time of the Senate and to give the leader less and less time to accomplish the things that we need to accomplish.
So I can go through many other names, but I will not do that now. I will await the return of a Republican Member of the Senate to Washington so that somebody can be on the floor of the Senate to either object or not object to these nominees. I would hope at this point that we will find they do not object. That would be consistent with the rule.
If they have been on the calendar this long, if they have had their unanimous consent objected to, if the 6 days have run and if nobody has come up and actually said they have a hold on that person, then a unanimous consent ought to pass. Under the rule, a unanimous consent ought to pass. If it doesn't, it is a sign that they are either flatout violating the rule or that they have done this hold laundering scheme with a colleague to dodge out from under the rule. I think neither is credible and we need to work our way through this process. So on the next possible occasion, I will be doing that.
I thank the Presiding Officer for his courtesy and his time. I yield the floor, and I suggest the absence of a quorum.
BREAK IN TRANSCRIPT
Source