National Defense Authorization Act For Fiscal Year 2014 -- Continued

Floor Speech

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Mr. President, I rise for two purposes. No. 1, to discuss the National Defense Authorization Act and the fact that we cannot offer amendments to it and the process that has deteriorated in the Senate for deliberation. Second, I will speak very shortly about the nomination of Mayorkas, one of the first nominees we will be voting on this week.

The Senate is poised to vote on a final National Defense Authorization Act after considering only two amendments. The Senate has not been functioning like it should for some time, and the way that the National Defense Authorization Act has been handled is one example. I have served in the majority and the minority, with Democratic Presidents and Republican Presidents. So I have seen it operate from every perspective. What is unique about the Senate is that the rules as well as the traditions force Senators to work together. That leads Senators to understand where the other side is coming from, resulting in mutual respect and scrutiny.

I hear from a lot of Iowans who are upset at the tone they hear in Washington and the lack of bipartisanship. I have often said that the Senate functions best when no party has more than about 55 seats. If you have much more than that, there is less of a tendency to want to work in a bipartisan fashion. That was true for most of my time in the Senate but not now. Despite a current margin of just 5 seats in the Senate, there has been very little bipartisan cooperation. I suppose some Democratic Senators really believe it when they say that this is all Republicans' fault. I think anyone who remembers how the Senate used to operate and has paid attention to how the current majority leadership has been running things in fact knows better.

In fairness, quite a few Members of the Senate do not remember how the Senate is supposed to operate because it has been dysfunctional ever since they were elected. Some Senators previously served in the House of Representatives, where the majority party controls everything that happens. In the House of Representatives, the Rules Committee sets out the terms of debate for each bill. If you want to offer an amendment in the House you have to go, hat in hand, to the Rules Committee and say: Mother, may I. If the House leadership does not like your amendment, frankly, you are out of luck.

If that sounds familiar, that is because it is how the current Senate leadership has been running things lately here in the Senate. We have seen an absolutely unprecedented use--or I should say abuse--of cloture motions paired with a tactic called filling the tree to block amendments from being considered.

That not only affects the minority party, but Democratic Senators are affected as well. I would say to my colleagues on the other side of the aisle: How many times have you had an amendment you wanted to offer, that was important to your State, but you could not do it because amendments were blocked? The Senate majority leader has effectively become a one-man version of the House Rules Committee, dictating what amendments will be debated and which ones will never see the light of day. This strips the ability of individual Senators to effectively represent their States, regardless of party.

It also virtually guarantees that any legislation the Senate votes on will be more partisan in nature. I would ask my colleagues across the aisle: Isn't your first responsibility to the people of your State, not to party leadership? Are you really content to cede to your party leader the trust and responsibility placed in you by the voters of your State? How much longer can you go along with this proposition?

The people of Iowa sent me to the Senate to represent them, not simply vote up or down on a purely partisan agenda dictated by the majority leader. Everyone complains about the lack of bipartisanship these days, but there is no opportunity for individual Senators to work across the aisle when legislation is drafted on a partisan basis and amendments are blocked. Bipartisanship requires giving individual Senators a voice regardless of party. When Senators are only allowed to vote on items that are preapproved by the majority leader, those Senators lose the ability to effectively represent their State and, in the end, become mere tools of party leadership. It is no wonder Americans are so cynical about government right now.

In the last decade, when I was chairman of the Finance Committee and Republicans controlled the Senate, we wanted to actually get things done. In order for that to happen, we knew that we had to accommodate the minority. We had to have patience, humility, and respect for the minority--attributes that do not exist on the other side anymore. We had some major bipartisan accomplishments, from the largest tax cut in history to a Medicare prescription drug program to numerous trade agreements. Those kinds of major bills do not happen anymore.

The Senate rules provide that any Senator may offer an amendment regardless of party affiliation. Each Senator represents hundreds of thousands or millions of Americans, and each has an individual right to offer amendments for consideration. The principle here is not about political parties having their say but duly elected Senators participating in the legislative process, as imagined by the Constitution. Again, as part of our duty to represent the citizens of our respective States, each Senator has an individual right to offer amendments. This right cannot be outsourced to party leadership.

The longstanding tradition of the Senate is that Members of the minority party, as well as rank-and-file Members of the majority party have an opportunity to offer amendments for a vote in the Senate. That has historically been the case with the annual National Defense Authorization Act, the very bill that we are debating now. But not this year. It typically takes a couple of weeks to consider the National Defense Authorization Act. This year the majority party leadership chose to wait until a week before the scheduled Thanksgiving recess to bring it up, leaving little time for the customary open debate and amendment process.

Once the Defense bill was brought up, rather than promptly starting to process amendments, the majority leader immediately blocked amendments so that he could control what came up for a vote. Obviously, the Senate ground to a halt, wasting time that we did not have when we could have been considering amendments from both sides of the aisle.

This process, as everyone here in the Senate knows, is called filling the tree, where the majority leader offers blocker amendments that block any other Senator from offering their own amendment unless the majority leader agreed to set aside his blocker amendment so other amendments can be offered.

Filling the tree does not appear anywhere in the Senate rules. It is based upon combining two precedents, the precedent that the majority leader has the first right of recognition by the Presiding Officer and the precedent that only one first-degree and one second-degree amendment can be pending at any one time. Basically, the majority leader abuses his prerogative to cut in line and offer an amendment that does nothing more than simply change the enacting date by 1 day, for instance. That then blocks any other Senator from exercising his right to offer an amendment.

This so-called filling-the-tree tactic used to be relatively rare, but it has become routine under current leadership. This way the Democratic leadership can prevent other Senators from offering amendments that they do not want to have to vote on. Then, with amendments blocked, the majority leader makes a motion to bring debate to a close. Around here that is called cloture. When cloture

is invoked, it sets up a limited time before a final vote must take place. By keeping amendments blocked while running out the clock, the majority leader can force a final vote on a bill without having to consider any amendments other than amendments that the majority leader might approve.

It should not be a surprise to anyone that Members of the minority party who wish to offer amendments will vote against a motion to end debate until their amendments have been considered. When Republicans vote against the Democratic leader's motion to end debate, we are accused of launching a filibuster. In other words, unless we give up our right to participate fully in the legislative process, the other side says that we are filibustering.

Does that really count as a filibuster? No. The nonpartisan Congressional Research Service answers this question, and has a very helpful report on cloture motions and filibusters that make this point very clear. The CRS report is entitled, ``Cloture Attempts on Nominations: Data and Historical Development,'' by Richard S. Beth. It contained an entire section called ``Cloture Motions Do Not Correspond With Filibusters.'' It starts out:

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture was sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is, cloture is sought by supporters of matters, whereas filibusters are conducted by its opponents.

It then goes on to explain various scenarios to illustrate this point. Several Members of the majority have made a point of trying to confuse cloture motions with filibusters. We hear constantly that there have been an unprecedented number of Republican filibusters. They often point to a chart that purports to tally the number of filibusters and say that this is evidence of abuse of the Senate rules by the minority. The number they quote is the number of cloture motions, not the number of filibusters. It is true that there have been a record number of cloture motions, and I also agree that the number amounts to an egregious abuse of Senate rules, but, again, there is a very significant difference: Cloture motions do not correspond with filibusters. Cloture motions are filed by the majority party leadership, not by the minority party. This abuse of cloture is a major cause of the Senate's current dysfunction.

Again, this abuse of cloture, often combined with the blocking of amendment also prevents all Senators from doing what they were sent here to do, not just Members of the minority party.

It has gotten even worse. Even where the majority leader has decided he is going to be open to amendments, he has created out of whole cloth new restrictions to limit Senators' rights. First, he normally only opens the amendment process if there is an agreement to limit amendments. This is usually only a handful or so. Then he has magically determined that only germane or relevant amendments can be considered.

Of course, nowhere do the Senate rules require this, other than postcloture. Senators elected in the last few years appear to be ignorant of that fact. You will hear some Senators here argue against an amendment saying it is nongermane or nonrelevant. They have totally fallen for the creative rulemaking of the majority leader, thus giving up one of their rights as a Senator with which to represent their State. I cannot count on how many nongermane or nonrelevant amendments I had to allow votes on when I processed bills when Republicans were in the majority. They were usually tough political votes, but we took them because we wanted to get things done. We wanted the Senate to function.

You do not see that nowadays. The current majority leader avoids tough votes at all costs and that is why we don't get much done around here. The American people sent us here to represent them. That means voting, not avoiding tough votes.

We sometimes hear this is a question of majority rule versus minority obstruction. Again, that ignores that each Senator is elected to represent their State, not simply to be an agent of the other party. While the majority of Senators may be from one party, they represent very different States, and the agenda of the majority leader will not always be consistent with the interest of their States.

When one individual, the Senate majority leader, controls what comes up for a vote, that is not majority rule. In fact, there are policies that have majority support in the Senate that have been denied a vote.

What happened during Senate debate on the budget resolution this year seems to prove that point. The special rules of the budget resolution limit debate so it can't be filibustered but allow for an unlimited number of amendments.

A Republican amendment to support repealing the tax on lifesaving medical devices in President Obama's health care law passed by an overwhelming 79-to-20 vote, with more than half of the Democrats voting with the Republicans rather than with their party leader.

A Republican amendment supported the approval of the Keystone XL Pipeline to bring oil from Canada and passed 62 to 37.

Those are two examples, because votes such as these that split the Democrats and hand a win to the Republicans are exactly what the majority leader has been trying to avoid by blocking amendments.

That is why the Senate didn't take up a budget resolution for more than 3 years. Still, the budget resolution isn't a law, so unless legislation on those issues is allowed to come up for a vote, nothing will happen despite the support of the vast majority of the Senate as demonstrated by those two rollcall votes I just mentioned.

As a case in point, now we are on the National Defense Authorization Act, and one of the amendments the majority leader blocked would have imposed sanctions on the Iranian regime. Everyone knew this amendment enjoyed broad bipartisan support and would have passed easily had a vote been allowed to take place. It had majority support. But the Senate was not allowed to work its will.

Why? The Iran sanctions amendment was blocked because the President opposed it and it would have been a tough vote that divided the majority party. Is that a valid reason for shutting down the traditional open amendment process for the Defense bill? I don't think so.

Until we put an end to the abuse of cloture and the blocking of amendments, the Senate cannot function properly and the American people will continue to lack representation that they are entitled to.

MAYORKAS NOMINATION

As I said, I have a few short remarks on the Mayorkas nomination. I spoke at great length on this yesterday and I won't speak at great length today, but I have concern with Mr. Mayorkas' nomination, so I have additional information today for my colleagues.

Today the Office of Inspector General for the Department of Homeland Security released an embargoed version of its audit of the EB-5 immigrant investor visa program. The report states that the U.S. Citizenship and Immigration Service has difficulty ensuring the integrity of the program and does not always ensure that regional centers meet all eligibility requirements.

Specifically, the report said:

U.S. Citizenship and Immigration Service did not always enforce its own regulations and procedures to assist with managing the regional center program.

Another quote:

Until improvements are made, U.S. Citizenship and Immigration Service is unable to prevent fraud and national security threats .....

Another quote:

[I]t cannot report the results of the program accurately or ensure the EB-5 program is benefiting the U.S. economy and creating jobs for U.S. citizens as created by Congress.

We understand Mr. Mayorkas is in charge of these programs. The IG said the agency needed to improve coordination and rely on the expertise of other agencies.

The IG had several recommendations for the U.S. Citizenship and Immigration Service that, frankly, should have been in place before now, if the Director was doing his job. In his comments on the draft report, Mr. Mayorkas claimed that he was already addressing the issues the inspector general raised. He said his agency had ``dramatically enhanced collaboration with key government partners,'' meaning he was cooperating with the FBI.

He also wrote that when his agency has concerns with EB-5 cases, it doesn't decide the cases until it has ``fully coordinated its approach with enforcement and intelligence partners.''

I have seen examples of this so-called coordination that Mr. Mayorkas talks about. But, again, his words don't comport with the actual practice.

When Homeland Security's law enforcement database, TECS, has a hit on someone applying for a regional center, the Citizenship and Immigration Service sends an email to the law enforcement agency that put the record in. But the problem is that the Citizenship and Immigration Service isn't waiting for law enforcement to make an investigation. In fact, information has come to my attention that CIS employees are told to move forward if law enforcement doesn't respond within 5 days. That is just 5 days to find out what sensitive security or fraud information caused that person to be flagged. If law enforcement doesn't get back to the Citizenship and Immigration Service soon enough, then that agency goes ahead and the person's application is approved.

That is not coordination. That coordination is a sham. That should be simply unacceptable to any of us who are concerned about the national security of our country. It is not the sort of way to run a program with national security vulnerabilities. Everybody should wait until law enforcement responds. We need to know who is coming into this country and not, and particularly when they are involved in a program where you buy your way into the country by buying a visa because you are supposed to be investing in this country and creating jobs in this country. But for some people who may want to get into this country for ulterior motives, they may violate our national security; they don't care about creating jobs. But if it gets them inside the country, they get here. So we have to know whether they are a threat to our national security.

The only reason the Citizenship and Immigration Service even does check on regional centers at all is because of a push within that agency that Mr. Mayorkas and his management resisted. Now they are trying to take credit for it.

More important is what his agency has not done. They refused to kick out regional centers that invite national security problems. Mr. Mayorkas claims he doesn't have statutory authority, but the inspector general audit recommended that Mr. Mayorkas should make clear on his own that fraud and national security concerns are a reason for regional centers to be kicked out of the program.

The bottom line is Mr. Mayorkas has not taken the steps that were within his power to guard against security vulnerabilities in the EB-5 program. The inspector general's audit report concludes:

Currently, U.S. Citizenship and Immigration Service cannot administer and manage the EB-5 regional centers program effectively.

Mr. Mayorkas has had ample notice of these problems for years. He has failed to take adequate action.

I yield the floor.

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