A picture of Senator Tom Coburn
Thomas C.
Former Republican OK
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    Executive Session

    by Former Senator Tom Coburn

    Posted on 2013-12-11

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    COBURN. Mr. President, I came to the floor to talk about several other things, but after hearing the majority leader and my colleague from Delaware, I think the revisionist history needs to stop.

    This place ran from 1917 under a process where any one Senator could stop anything. That was changed by a two-thirds majority of those present voting to a number less than that. The point I am getting to is that we are in this process because the rules weren't good enough to accomplish what the majority wanted to accomplish and the majority leader wanted to accomplish. Majority Leader Byrd didn't have any trouble when he had the same vote number. Majority Leader Daschle didn't have any trouble. Neither did Frist or Dole. None of them had any trouble. As a matter of fact, what we have seen and what has happened is a lack of effective leadership in building bipartisanship.

    The Senate wasn't designed to be the House, as my colleagues have recently made it. The Senate was designed to absolutely protect minority rights. And what happened the week before we went on Thanksgiving break actually hurt the majority more than it hurt the minority because now the majority has lost the ability to hold their own administration accountable.

    The majority leader used the words ``reasonableness'' and ``clarity.'' Reasonableness is compromise. Reasonableness is allowing amendments on major bills. Clarity is the ability of Senators to offer their viewpoint on $600 billion bills. Reasonableness would be to say that every Member of this body ought to be able to contribute important ideas to the Defense authorization bill or to the farm bill or to any other major piece of legislation.

    So we have gone down this road. It can be stopped. All this can be stopped, but it cannot be stopped without the recognition of the damage done to this body by a very frivolous act.

    The revisionist history I am talking about is with the DC court. There is no difference in what the President is doing on the DC court than what Roosevelt decided to do or attempted to do. Everybody knows the workload there is enormously small compared to all the rest of the courts. Everybody knows there are also judicial vacancies that are much more important than those.

    So what is the reason for this? It is so we can continue to have executive orders and bureaucratic rules and regs come through that are going to get challenged because they are not within the consent and the vision of the laws that are passed, and, in fact, they can be enforced by a stacked court. My colleagues can't claim anything other than that. We know that is what is going on, and they know that is what is going on. That is going to be there forever. That is a legacy of the Obama administration, and it is a planned legacy.

    So it is not about what is claimed to be Republican obstructionism. It is about changing the very nature of our country. It is about changing the rule of law. It is about whether the President will be an emperor or be the President. And my worry is that we are moving fast and quickly toward an executive branch that has decided and has stated very proudly: If the Congress won't do it, we are going to do it anyway. Where does that fit in with the rule of law? And we have heard that three times from this President. In fact, they are doing it-- ignoring law.

    So now the very court where those laws will get challenged is going to be stacked with his nominees, and we refuse to admit this very same point was made by senior members of the Judiciary Committee when the Republicans were in charge. No one can deny that history. It is out there. Senator Schumer did it, as well as others, knowing that court should not be filled.

    [[Page S8636]] Now, we know it is going to get filled. We understand what is happening. What is at risk is the future of our country and whether we will really have balance between the powers of the judiciary, the executive, and the legislative branches in this country. What we are seeing is a reshaping of that. It is a dangerous trend. It was something our Founders worried about, and we have seen executive orders and executive privilege taken to new heights that have never been seen in this country before by this administration.

    So let's be clear what we are talking about. This isn't about obstructionism. This is about you limited our rights. You also very well limited your own rights in the ability to extract information.

    We just heard Senator Grassley spend 1 hour on the floor talking about the lack of response from this administration. There is no tool for you to get answers anymore, there is no tool for any of us to get answers anymore, because we can no longer hold any nominations because they will go through. So there is no power. We have given up the one significant power to hold the executive branch accountable.

    Not only that, but we have diminished the minority rights that are part of what the Founders created to force compromise--to force us to compromise, to bring us together. There is not ill will. There are damaged hearts in this institution today.

    We understand the strong beliefs on the other side, but we don't understand the lack of moral fiber that is associated with avoiding and violating what has always been the tradition of the Senate--which is, you change rules with two-thirds votes of those duly elected and present. Rule XXII still stands. It just has a precedent in front of it.

    So for the first time in our history in this body, one group--because they couldn't achieve compromise and wouldn't compromise--has forced a changing of the rules, not through two-thirds of duly elected and sworn members but by fiat and by simple majority. What is next? We are going to make it the House. That is what is next. That is coming. I know that is coming.

    So consequently what is going to happen in our country is we are not going to have significant deliberation. We are going to have laws changed at public whim, rather than the long-term thinking and an embracing of what the Constitution says.

    The whole purpose for this body is to be a counter to the House in terms of response to political and public demand; to give reasoned thought and forced compromise, so that what comes out of here is a blend of what both the public wants, but also what the public might have lost sight of in terms of a short-term view versus a long-term view. You are putting that at risk. It is coming at risk. The very the soul of the country can unwind right here in the Senate.

    So what remaining powers do we have as minority Members--and you may get to find that out someday--is to use the rules that are there to our benefit.

    In the past, nominations were agreed upon between the majority leader and the minority leader, and they were ferreted out and moved. We have had 21 nominations come through the homeland security committee. I voted positively for 19 of them, against one, and voted present on one today. I would say that is about 90 percent that I am in agreement of moving the nominations.

    We actually force compromise on our committee. We actually work to compromise on our committee. But that is because of the leadership of Senator Carper to create an atmosphere where you can have compromise and you can have back and forth. We don't have that leadership in the Senate as a whole. The Senate has never seen these problems. But it is not about the rules. It is about the leadership and who is running the place.

    Most of my colleagues on the other side of the aisle haven't been here for a long time. They have never seen it in the majority work. Seventy-seven times the majority leader over the last 7 years has filled the tree and barred amendments. That is more than all the rest combined in the entire history of the Senate. Is that about us or is that about him not wanting to allow the place to work? He is a good man. But the problem is that leadership matters, and this place is not functioning.

    I will make one other statement I think needs to be made. I believe that climate does change. I believe that climate is changing all the time. Global warming has been disputed now. It is undeniable; it is not global warming. We are now into a global cooling period, and that is OK. You can have cooling. But the fact is the science is still nebulous on all the claims being made. I have said before on this floor, I am not a climate change denier. But I am a global warming denier, because the facts don't back it up.

    We heard what the majority leader had to say about the importance of getting things through on climate change. There may be important things we need to do, but we ought to be doing them together rather than in opposition. If that were the attitude, that we would work together, if we would have an open amendment process--a truly open amendment process where the majority leader isn't picking our amendments and deciding what we can offer--pretty soon you are going tell us what we can say on the floor. You are going to determine what I can say on the floor. This is the first step in this process. That is the ultimate conclusion to this process that you have started.

    So it is about leadership, and it is either there or it isn't. Right now, it is not there.

    I yield the floor.

    The ACTING PRESIDENT pro tempore. The Senator from Nebraska.

    Mr. JOHANNS. Mr. President, I appreciate the comments of the Senator from Oklahoma, and I would like to use his comments maybe as a springboard for some thoughts I have, not only on this nomination but on the terrible mess we find ourselves in today here in the Senate.

    I am a fairly new Member of the Senate. I came here just 5 years ago. I thought a lot about reelection, and I announced some months ago that I would not seek a second term in the Senate. So you might say I don't really have a fighter in this ring. I am here for a limited period of time. I have already decided that. My interest is seeing the Senate operate in a way which will be in the best interests of our country, that will fulfill the vision that our Founders had of a country where there would be freedom and where the minority would be able to voice their view as well as the majority.

    The process by which the House of Representatives and the Senate were put together was a very thoughtful process. Our Founders looked at our country and its future, and they decided there needed to be a body where the population would be represented based upon numbers, based upon the population, and that became the House of Representatives.

    For a State like Nebraska, 200-some years later that doesn't work very well. It is pretty obvious that our three House Members can be consistently, routinely outvoted by a whole bunch of other States: California, New York, Pennsylvania, Florida, Texas. I could go on and on. We have three Members in the House. It is obvious that we are going to be on the losing end.

    The other piece of that is it is a majority-based body. So if you are in the majority, with the Rules Committee, you pretty well set the rules. It just works that as long as the majority can keep their members together, they are going to win. That is just the way it works. About the only way you can change that is to change the majority.

    When our Founders looked at that, they said: We have to have a different approach in the Senate. That led to the great compromise.

    What we ended up with is just a remarkable system. If you think about it, Nebraska in the Senate is as powerful as California. Nebraska is as powerful as Pennsylvania because we each get two Members. We are equally represented.

    They also recognize that the pendulum would swing. Sometimes one party would be in control, and sometimes another party would be in control. Originally, when the Senate was set up, any one Member of the body could come to the Senate floor and object or just debate something to death. That pretty well was how it operated, and it operated for decades and decades that way.

    Then came World War I and Senators began to recognize that funding the [[Page S8637]] war was going to be a very serious problem. There was a tremendous amount of affinity between Senators and people back in the country where their ancestors came from--Germany--and they had to find a way to end debate. So they finally, after discussing this and debating it, decided the best way of doing that was to put something in place where you could literally take a vote. I think back then, if my memory serves me correctly, if two-thirds of the Senators voted, they could end debate.

    That was quite a change for the Senate. The whole idea that a single Senator wasn't going to be able to literally force issues in the Senate was a very difficult issue. But that change was made, and it operated that way for many decades following. Then in the 1970s, the decision was made that it would take 60 votes to end debate. It would pull the number down to 60. But it was always recognized that the rules could only be changed by a two-thirds majority; that is, until just a few weeks ago. Then, something happened here in the Senate that literally shakes the foundation of this country and it shakes the foundation of this body.

    I guess if you are in the majority at the moment, you are probably saying: Geez, Mike. It seems to work out pretty well. Well, it won't work out very well for the history of this body, for this institution, for its Members, and, most importantly, for the citizens of the United States, because it was the method chosen to change the rules that is the frightening piece.

    Think about this. We came down here a few weeks ago. A ruling was made by the Chair, and the majority leader said: I will appeal that ruling.

    Now, we all know, if we have read the Senate rules--and I hope to goodness we have all read the Senate rules--that by appealing the ruling of the Chair, you can overrule the Chair by a majority vote.

    Let me repeat that. We bypassed the rule that says it takes two- thirds to change the rules of the Senate, and the majority said: We will appeal the ruling; and if we get a majority, we will overturn the ruling. That is what happened, and that is where we find ourselves tonight.

    This isn't inconsequential, and we are not trying to be arbitrary and capricious, but we are trying to make the point that this is a huge issue for the future of our country. Let me point out what this now means for the Senate. What this means is that if the majority leader, whoever that is, Republican or Democrat, does not like the way things are going, they can appeal the ruling of the Chair and overturn that ruling by a majority vote because now the precedent is set. It is in our history. It is in our rules.

    Some look at this and say: You need not panic; this only applies to circuit court nominees, district court nominees, and executive appointments.

    Let's think about that for a second. Let's say we have a Supreme Court of the United States where there are four members who are pretty consistent in ruling one way--some might call it the liberal way--and we have four members who are pretty consistent in ruling another way-- some might call it the conservative way--and there is one member of the Supreme Court who kind of moves back and forth between the four over here and the four over here, between the four liberal members and the four conservative members, whatever you want to call it. That is a pretty unpredictable vote.

    Let's say something happens. Maybe there is a health issue. Maybe there is a decision by that member there in the middle to retire. I don't know. It could be a whole host of things. That is the human condition. Things happen to us. Let's say we are in the last 18 months of an administration. The President is due to go out. The campaign has already started. People are showing up in Iowa, New Hampshire, South Carolina, and everywhere else. They are raising money. They have Presidential races they are organizing, and they are doing all the things they need to do. You have Republicans thinking: By golly, it is our time. We either keep the White House or win the White House. You have Democrats thinking the same. And you have a President who all of a sudden has a Supreme Court appointment smack dab in the middle of four members on one side and four members on the other side.

    Let's say the majority has the ability to put somebody of their own ilk into that position--whether it is Republican or Democrat or liberal or conservative. They look at this and they say: You know, we could lose the White House or we might not get the White House. These are appointments for life. It is not as if we are appointing somebody for 4 years; these are appointments for life. We have kind of come to the conclusion, as we talked about it on our side of the aisle, that, by golly, it is in the best interests of this country if we can make this appointment. You know what. We do not have 60 votes to get it done. We have counted the votes. It looks as though this is going to come out of the Judiciary Committee on a straight party-line vote. What are we going to do now? I know what will happen. You know what will happen. Every Member of the Senate knows what will happen. I don't care if you are a Republican or a Democrat or a conservative or a liberal or a Socialist or whatever you want to call yourself, we know what will happen. There will be a ruling by the Chair. There will be an appeal by the majority leader. And all of a sudden we will have a rule where you can confirm a Supreme Court nomination--a nomination to a job for life--based upon a majority vote. Does anybody think for a minute that is not going to happen? Does anybody think for a minute that the circumstances surrounding that will not occur? I guess if you are on the Republican side of the aisle and it is a very strong conservative who is going to the Supreme Court, maybe you look at that and say: Thank goodness. We saved the country.

    Maybe if you are a Democrat and it is a good strong liberal who is going onto the Supreme Court, you say: Thank goodness. We saved the country, and it was worth it.

    But you see, here is the dilemma in which we find ourselves. The dilemma in which we find ourselves is that the majority of this body has now set the precedent and you cannot pull it back. There is not any way now that you can unwind the clock and turn back the clock.

    Let me offer another thought. Let's say we are a few years down the road and you have a piece of legislation and your side of the aisle has decided that piece of legislation is absolutely critical for the future of this country. Maybe it is cap-and-trade, maybe it is another health care bill--whatever. All of a sudden somebody says: We have to get this done. We are in the last 12 months of this administration. We are looking at the numbers. We are not going to win the White House again, the way it is looking. The precedent is there: Appeal the ruling of the chair.

    The point I am making is this. It is not that the rules were changed. The rules have been changed in the Senate a number of times by the way the Senate rules contemplate--with a supermajority voting to change those rules. Now we have torn that up because now we have established a precedent.

    I am in the process of reading Senator Byrd's history of the Senate-- a remarkable man. I got to know him a little bit. He was still here when I came to the Senate, before he passed. He happened to be on the other side of the aisle, but I came to respect him so much. He would never have stood for this. He never would have tolerated that this institution would be so mistreated by anybody, Republican or Democrat. Boy, in his heyday he would have been at his seat screaming at the top of his lungs about what we were doing to the Senate with this vote, what the majority was going to do to the future of this great body.

    In his history of the Senate, he talks about how important it is that there is this body where a minority view of the world can be represented.

    If I were the majority leader, I guess I would like this to run efficiently and well-oiled and smoothly. I was a Governor. I was a mayor. The days when I got my way were much better than days when I did not get my way. I did not like being frustrated by the legislature. I didn't like the city council telling me I couldn't get my way. I could not understand, some days, why they could not figure out that I was right.

    One day I was sitting down with a State senator. He had been there a lot of years. I was complaining about the way the legislature was treating me. I couldn't understand why the legislature couldn't follow everything the [[Page S8638]] Governor wanted done. He listened very patiently and he looked at me and he said: You know, Mike, nobody elected you king.

    I think that is what Bob Byrd would have said--nobody elected any of us king. You see, our Founders set up this system with the whole idea that we would not have kings anymore, that there would be checks and balances, and that we would be forced to deal with each other, sometimes more artfully than at other times but that we would be forced to deal with each other.

    The majority leader came down here and he said: I don't understand this, and he talks about this process. This process got started because he filed cloture on 10 nominations. Why are we not working on this? If you look at the history of the Senate over the last years--I have been here; I watched it; I turn on my TV in the office to see what is going on on the Senate floor. Do you know what I see? Exactly what you see, what all of us see. We sit hour after hour, in cloture or in quorum call hour after hour when amendments are pending.

    I thought--I had this mistaken impression--that every Senator could file an amendment; that if I had a better idea on something, I could file an amendment and I would get a hearing on the amendment. I would be able to come down here and try to argue to my colleagues: Pass my amendment. We have not seen that kind of process for years under this majority.

    I didn't think it was possible to mishandle the Senate when I came here. I looked at the books of rules and interpretations and volumes, chapter after chapter written about the rules of the Senate, and I said to myself: There is no way you could mismanage this body because these rules are as intricate as they could be. Boy, was I proven wrong. You can mismanage this body. We have seen it. And that is where we find ourselves today.

    At the end of the day, why did it happen? Why did it happen? Why are we putting ourselves in this position? A former U.S. Senator from Nebraska who had been here--I think he was here three terms. He had a wonderful saying. When his party was not in power, he would say at speeches: Ladies and gentlemen, let me remind you, the worm will turn. It was his way of saying: You know what. I have been in the majority and I have been in the minority, and it will change because the people will send a message into this Chamber, just as they did on the health care bill. They will send a message that this is not the kind of country they want.

    We somehow have to figure out how to put this back in the box. This nuclear option needs to be sealed up, hidden away, and never used again--I don't care if the Republicans are in the majority or the Democrats are in the majority. This basically means, today, that all of those rules, all of those chapters written about those rules have no meaning whatsoever because there are no rules. If I do not like what is going on here and I am in the majority, all I have to do is appeal the ruling of the Chair and get my team to stand together and we have changed the way the Senate operates. It is as simple as that.

    I think at times in our history we would like to think that we are the smartest people in the world, that we thought of something no other person has thought of in the history of this country. Not true. If you read what Senator Byrd wrote about the history of the Senate, many times U.S. Senators, dissatisfied, losing personally because of a ruling of the Chair, had an opportunity to appeal that ruling and win and realized that was the wrong course of action because they would set a precedent that you could change the rules by breaking the rules. That is exactly what happened a couple of weeks ago. It is not the fact that the rule has changed, although I disagree with where we ended up, it is the method by which the majority--Democrats--changed those rules, because that method is now precedent and it is now available to Republicans and Democrats and it is wide open. I guarantee that in our lifetime we will see a Supreme Court nominee put on the Supreme Court by this method. I guarantee that we will see--whether it is in our lifetime or at some point after--that there will be a situation where legislation is now done by a majority.

    What does that mean for the country? I will give a good example. The great compromise protected States such as Nevada, Nebraska, and Iowa. We all get two Senators. We all get to come to the floor and fight for what we believe in.

    I imagine that every Senator would say something to the effect of: I come from a beautiful State, the State of Nebraska. We are conservative people by nature. I don't think you live in Nebraska unless you have a pioneer spirit and you are conservative by nature. That is who we are. We essentially believe that less government is a good idea.

    When I was Governor, people didn't want me running their schools. They had a school board. They felt they could make thoughtful and intelligent decisions about running their schools. I thought they could too. That is the nature of who we are.

    Do you realize that on executive appointments--district court and circuit court judges--we basically get dealt out of this. Let's say I have a problem with a nominee, and I want to put a hold on that nominee until they come to my office and deal with me. Everybody on both sides of the aisle gets the opportunity to use that. Well, guess what. That was voted away a few weeks ago.

    Why would a Republican administration deal with anyone in today's majority? Why would they care? It doesn't make any difference.

    I went through that process. I was a member of the President's Cabinet. I hope I would have the decency that if anybody asked me a question, I would answer the question or try to solve their problem or try to work with them. Quite honestly, why do they need to? How can that issue be forced now? They don't need your vote. They can get through the process if their party is the majority of the Senate. This body was never intended to operate that way.

    I want to spend a few minutes of my time talking about what I really think this is about, and this makes it an even more tragic story. The majority leader was here a few minutes ago and said: Well, if you are going to be like this, then we will work on Christmas. We will work the weekend before; we will work the day before.

    I was sitting there thinking: What is new about that? What's even threatening about that? I mean, that is the way business is done.

    We sit through hours and hours of quorum calls and then all of a sudden they file cloture on 10 nominees 2 weeks before the break? It is kind of obvious to me what is going on here. Is it obvious to anyone else what is going on here? They are trying to force the issue.

    Why didn't we start working on this weeks ago? Why don't you run the Senate 24/7 so we can move amendments and give us the opportunity to vote on amendments? Why sit hour after hour in a quorum call? I think what this is really all about is this: We had reached an agreement. Remember that evening when we all walked down the hall-- Republicans, Democrats, and Independents--and went into the Old Senate Chamber and shut the doors. There was no media or staff. It was just us talking about the Senate.

    I am not going to share a lot about what was talked about in there, but I thought it was a pretty good meeting. We have done that a couple of times. We did that on the START treaty, and we did it that evening a few months ago.

    It wasn't very pleasant, but over the next day or so we shook hands and said to each other: OK, we get it. We don't want to get in the business of breaking the rules to change the rules. We understand the precedent that is setting. Once you put that on the books, like I said, you can't unwind the clock.

    So, OK, this is what we are going to do--and I must admit I didn't like it very much. I thought we were giving up too much. Having said that, the alternative was not very attractive. We shook hands, like gentlemen do, and we called a truce and those were the rules we would operate under.

    Everybody said: We dodged a bullet on that one, and the Senate will continue to function like it has functioned the last 225 years. It will function as a place where the minority, whoever that might be at any given time, has a [[Page S8639]] voice. It is the only body in the world that operates like that.

    As I said, I must admit I had qualms about it. I talked to some of my colleagues on both sides of the aisle about my qualms, and at the end of the day I reached the conclusion that it was better than the nuclear option.

    So why did this come up again? If we had reached a deal--if we shook hands like gentlemen and women do, why did this come up again? I thought this was behind us. I thought we would make our way through nominations and work long hours. Most of these are very noncontroversial, and I thought we had reached an agreement.

    We had reached an agreement. We all knew we had reached an agreement. So why did Democrats feel that all of a sudden we needed to revisit this? The argument I want to make tonight is this--and I am going to draw on a little bit of history. When I first came here, I sat in a chair over there. I will never forget it. It was Christmas Eve day when we were brought in here to vote on a piece of legislation. Christmas Eve votes are pretty unusual around here. We all sat at our desks. We don't usually enforce that rule, but we all sat at our desks.

    For people like me, I left this Chamber very, very sad and discouraged. On a pure party-line vote, a monumental piece of legislation that practically no one had read and was poorly understood--in fact, the Speaker said: We have to pass this to understand what is in it. No truer words were ever spoken. It passed. Not a single Republican in the House or the Senate voted yes on that legislation.

    When I came here, I kind of had the idea that there would be give and take, that I would get my idea, you would get your idea, and at the end of the day the Senate was a body that would force compromise or the bill wouldn't pass.

    Something unusual happened. The President was a Democrat, the Senate had 60 Democrats, so debate could end, and the majority of the House was overwhelmingly Democrat. It became very clear to me that my view of the world didn't matter, and it wasn't going to matter because as long as they could sweeten this thing up and do deals, and whatever else, my State was impacted by it. We all remember the Cornhusker Kickback. But at the end of the day it passed.

    I could never figure out how that bill would work. It just didn't make any sense to me. I had been a Governor. I had seen how failed Medicaid was--40 percent of the doctors would not take Medicaid. I could not imagine how adding millions to that system was going to help poor people. To me it looked like it was going to hurt them. It was kind of like giving them the bus ticket and then saying: We are only running one bus in Washington, DC, these days. It is probably not going to be very successful.

    I looked at what was happening in the rest of the bill, and it just didn't make any sense to me. I think I know why we revisited this rule. When the rollout occurred right about that time, all heck broke loose. The American people finally realized how bad this bill was. In fact, there is one State out there, the State of Oregon, that didn't sign anybody up because their system melted down.

    The exchange was a mess. People found out that all of these promises--remember this one: If you like your plan, you can keep it, period. If you like your plan, you can keep it, period.

    Not only was that used on the campaign trail--you know, we all get out on the campaign trail and hyperventilate here and there. That phrase was used by somebody in real authority: The President of the United States of America. He went to the American people and said: If you like your plan, you can keep it.

    I said how could that possibly work. The whole idea is you have to force people off their plan and onto a different plan. If you like your plan, you get to keep it? In 2010, the administration's own rule on this subject showed that as many as 80 percent of small business plans and 69 percent of all business plans would lose their grandfathered status.

    A very thoughtful Senator, a guy by the name of Mike Enzi, put in a resolution of disapproval which would have canceled that regulation. Back then he was able to get it to a vote. You would think that if you want to support the President of your party and his pledge to the American people--if you like your plan, you get to keep it, period--you would vote with your President. You would think that would be 100 to 0.

    I don't know how Republicans could be against that. I don't know how Democrats could be against that. After all, that is what this person in authority promised the American people: If you like your plan, you get to keep it, period. He said it over and over. It was like a broken record.

    You know how that vote went here? Let me remind everybody. It failed on party-line votes. Democrats voted no on the resolution: If you like your plan, you get to keep it. My goodness. Is that an embarrassment or what? What was the message that day? Were they trying to say: No, if you like your plan, you don't get to keep it? The President isn't being truthful with you. Was that the message that day? What was going on? I mean, I was stunned by that vote.

    How could you be against the President's own promise? That was back in 2010. That information was available to the President and his people back in 2010. Yet they kept saying it: If you like your plan, you get to keep your plan.

    One other estimate by the Congressional Budget Office, which I think generally we all respect--they do good work for us. They do our scoring. They said that up to 20 million employees could lose their employer-sponsored insurance. Wait a second. That information was available too. So how has this promise worked out? This fall, more than 4.7 million cancellation letters went out in 32 different States. I have read the articles. I imagine everybody in the Chamber has read the articles. They say 4.7 million people got cancellation letters in 32 different States. The cancellation letter basically said: Well, sorry. This big law got passed on a party-line vote, and you don't get to keep your plan, just as was predicted by the CBO and the administration's own people. This should not be stunning to anybody in this body, but it was stunning to the American people.

    The President said: Oh my goodness. I think this is a problem. So he said to insurance companies: You have to fix this. You have to get people their plan. If they like their plan, they get to keep their plan. And it didn't matter whether it was Democrats or Republicans in given States, they said: Mr. President, you can't unwind that clock.

    What I would say to that is, wait a second here. I don't like this law, but it passed. I was sitting there the day it passed. It passed on a completely party-line vote. And people literally were caught in a situation--millions of them--where they realized they wouldn't get to keep their plan. So could the President solve that problem? No. It wasn't a policy fix; it was a political fix. That is what he was doing. He was literally trying to solve a political problem for the majority that passed the darn bill. I mean, it is unbelievable.

    Many weighed in. The American Academy of Actuaries said this: Changing the ACA provisions could alter the dynamics of the insurance market, creating two parallel markets operating under different rules, thereby threatening the viability of insurance markets operating under the new rules.

    Now, I am as competitive as anybody. I have run a lot of elections. I understand the importance of being in the majority in this body. I especially understand that after what the majority did over the last few weeks. We went 225 years as a country, and it was only in the last couple of weeks that the majority said: Look, we are tired of dealing with you, minority. We are going to get our own way.

    It reminded me of the day ObamaCare was passed. It was identical. It was like: Johanns, get lost. We don't care what you think about this. We have 60 votes. Sit down and shut up.

    Is that the way the Senate is supposed to operate? I don't think so. I don't think that is what was envisioned when this body was put together, and it has been forever changed. It happened because ObamaCare is out of control. It is not the Web site. The Web site was a mess. It just proved to us that the White House couldn't manage this. That is what it proved to us. But we can fix a Web site. They can get smart people who go in and figure it out.

    [[Page S8640]] That wouldn't be me, but there are many people in the United States who could be brought to bear to solve this problem of dealing with the Web site. It is not the Web site, although it is a huge embarrassment. It was a huge embarrassment for the White House. It was a huge embarrassment for the President of the United States. It was a huge embarrassment for Kathleen Sebelius. It was a huge embarrassment for the Democrats who voted for this. But at the end of the day it can be fixed, and I would guess they would fix it. I kept saying to people back home that I think they will get it fixed. How tough is that? How tough would it be to do it the right way the first time? But they didn't. It just proves they are not very competitive.

    What is happening here is the wheels are coming off this policy because the policy never made any sense. When the President made this announcement: Insurance companies, you fix it, America's health insurance plans said that premiums have already been set for the next year based on the assumption of when consumers will transition into the new marketplace. Who decided when they would transition into the new marketplace? The insurance companies didn't. The majority did. The White House did. Health and Human Services did.

    They go on in their statement: If now fewer younger and healthier people choose to purchase coverage in the exchange, premiums will increase and there will be fewer choices for consumers.

    Well, let me say something that is obvious to everybody in this Chamber. Your premiums are going up. Why? Young people are so turned off. Young people are so turned off by what is happening. I had a young person show up at a town hall. This was a year and a half ago. They said: Here is kind of the deal. It is just my wife and I. We don't have children. We are both working. We are trying to get ahead. We don't make a lot of money, and we decided the best plan for us was kind of a catastrophic plan. We will deal with our day-to-day health care needs, which, incidentally, aren't much because we are young and fortunately we are healthy. We have a high deductible.

    I was listening to that, and I said: God bless you. This is America. They can make that choice. That was the best choice for them. They thought about it and decided the money they were making might be better allocated someplace else. What a great country that people can decide that.

    Well, what happened with this health care bill? That decision was taken away from that young couple. They were ordered by the Federal Government, under penalty, to buy a given plan. Now, I have not caught up with that young couple, but I bet they are mad as wet hens. I will bet they have looked at what has happened to them and they are saying: Why? We all know the little secret here: Young people are paying more for coverage that they don't need to finance me in my sixties. Does that make any sense? I could go on and on about what is happening here with this health care bill, but it is not sheer coincidence that Senators in the Senate reached an agreement months ago on the rules. We shook hands on it. We put that behind us. Right about the time ObamaCare rolled out, all of a sudden that agreement wasn't valid anymore, and we got set up on a manufactured crisis to force a vote, and the method chosen to change the rules forever changes how the Senate operates.

    In our history, many Senators had the opportunity to change these rules and thought better of it because they so respected and admired this institution, that they believed there was a place for a minority whether that Senator was in the minority or the majority at the time. That is what happened.

    I will take another step. All of us know what this is really about. This is about control of this body. All of a sudden, because of ObamaCare and the truth coming out about what a terrible piece of policy this is, it became evident that Members over here were in deep trouble and were going to lose their elections if their elections were held now, and the majority had to change the conversation. So the agreement we reached after that night we spent in the Old Senate Chamber hashing through this, debating and discussing it, basically got torn up and tossed out the window, and the majority forever changed how this body will operate and what this body is going to be about in the future.

    So what I say to my colleagues tonight is this: I am not planning on being here much longer. I have made that decision. One could say I don't have a boxer in the ring. A year from now, I will be doing something else. Some will be here, some won't be here. But at the end of the day, what I will remember about this time in the Senate is that a precedent was set that is vastly different from the way this Senate operated for 225 years. A precedent was set that allows the majority to take control of executive branch appointments, district court appointments, circuit court appointments. It is a precedent that would allow a majority to take control of a Supreme Court appointment. It is a precedent that will allow a majority, when it chooses to--not if; I believe it is a question of when--to take control of the policymaking.

    So it is true when we say that if they were attempting to change the conversation, I say to the majority Members of the U.S. Senate, away from ObamaCare to this, all they have done is reminded the American people that what they are really doing is abusing this institution in a way that, quite honestly, is going to be very hard to turn around.

    My thought is this: I feel very strongly that we can reverse what has occurred here, but we can't do it as a minority. We need the majority to back off. We need the majority to recognize that this body has existed through difficult times, it has existed through wars, it has existed through attacks on our country, and we have found a way to operate. We need the majority to recognize that we reached an agreement many months ago after an evening spent together in the Old Senate Chamber where we debated these things and, like gentlemen and gentlewomen, we shook hands and put this behind us for this session.

    We can do the work of the Senate. We can do the work for the American people. I have no doubt about that whatsoever.

    I am very concerned, though, that we have put the Senate in a position where it is a very vulnerable body now. Any majority can now use this precedent to turn this into something that is entirely different than what anybody who founded this country believed it should be. When the majority decided that it would bypass the requirement that rules would be changed by a two-thirds vote and do it by appealing the ruling of the Chair, they put the Senate in a position where there are no rules. There are no rules. All you need is 51 Members--50 if you have the Vice President in the Chair--who decide to stick together and make that Supreme Court appointment. They can get it done. All you need is 50 Members, if you have the Vice President in the Chair, who decide they stick together, and they would do a legislative process by a majority vote.

    Many, many times the nuclear option was discussed, it was debated, and Senators much wiser than I looked at the history of this great country and its future and decided it was a step that should never be taken--that was until a couple of weeks ago, all driven by the fact that this piece of legislation called ObamaCare has turned out to be such a train wreck and that there was a need to change the discussion and change the topic and try to draw the people's attention away from that legislation, and that is how this rule got adopted. It is a sad time in our Nation's history. It is a sad time in terms of what is going on.

    What I would offer is my hope is that wise people will realize the problems they have created for this country in the future, realize that the precedent they have set forever changes the way we operate and back away from what occurred.

    Let's start doing the work of the Senate. If that means we work through Christmas, good. I am here. If that means we work on weekends, if that means we work around the clock, fine with me. I am good. I will do it. I will be happy to do it. But to try to streamline this process in a way that silences the minority is not right, and it is not what this country should be about.

    I yield the floor.

    [[Page S8641]] The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from Connecticut is recognized.

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