Sep 18 2014
Sep 17 2014
At some point today or tomorrow the Senate will hastily consider – and likely pass – a massive, hodgepodge spending bill to fund every last department and program within the federal government... even those we know don’t work. The alternative – if you can call it that – is to deny funding for every last department and program within the federal government... even those we know are essential.
All or nothing: these are our only options. Government on autopilot or government without an engine.
The problem, Mr./Madam President, is that by funding the federal government through a massive, patchwork spending bill, we force the American people to choose between two bad options: pay for everything in government or pay for nothing at all; either fund the entire federal government tomorrow at the exact same level as today, or fund nothing within the federal government... not even to pay our soldiers or our judges... not even to provide care for our veterans or support our most vulnerable.
This kind of all-or-nothing proposition is dysfunctional, it’s anti-democratic, and it prevents Congress from doing its job – which, I remind my colleagues, is to represent the American people and to be faithful stewards of taxpayer money.
During the month of August I held a long series of town hall meetings across my home state of Utah. Whether I was in Cache County, in the northern reaches of the state, or down in the opposite corner, in Washington County, the people of Utah were clear about what they wanted: they demanded action.
Their concerns weren’t always the same – some worried about public lands, others were anxious about the economy, and many were troubled by the crisis at the border.
But they were all looking for answers – for solutions – from someone. Everywhere I went, they asked me: “What are you going to do? What are you going to do to get our country back on track?”
And I would tell them: as a matter of law and of constitutional authority, members of Congress have certain tools to address all of these concerns, but none is greater than the power of the purse. This is the power to allocate money to fund government operations: it’s what enables Congress – and only Congress – to reform dysfunctional government.
Encompassed within the power to give money is the power to withhold money. In this case, the power of the purse is the most potent and effective instrument Congress can use to hold the Executive branch accountable.
So when the Administration fails to follow the law – as this Administration has done so frequently – Congress can demand answers and accountability by using the power of the purse as leverage.
After several of these town hall conversations I began to notice that, at this point in my answer, most people began to look hopeful that something could actually get done in Washington.
But then I’d have to break the bad news. I’d have to tell them that all those things their representatives should be able to do – like fixing broken government programs, ensuring the solvency of Social Security and Medicaid, and impeding lawless actions by the Executive branch – simply cannot get done because the Democratic leadership in the Senate insists that our federal government operate on autopilot.
This is the problem with the CR: when Congress has only one opportunity to exercise its power of the purse – by voting for or against an all-or-nothing spending package – Congress has essentially no opportunity to exercise its power of the purse.
In the CR we will consider tomorrow, there are several provisions that deserve their own consideration and debate – such as reauthorizing the Export-Import Bank, extending the Internet Tax Freedom Act, and authorizing military action in Syria. None of these measures – and certainly not something that could put American lives at risk – should be hurried through on an all-or-nothing vote.
This is why the CR matters for everyone in this country: it is the principal reason our government is so dysfunctional and so unaccountable.
A government on autopilot leaves Congress paralyzed… powerless to implement meaningful government reforms, and powerless to hold the President and his administration responsible for their actions.
This is not how our government is supposed to operate.
It doesn’t have to be this way. There is a better way.
As recently as fiscal year 2006, Congress passed eleven free-standing appropriations bills. To put that in context, that’s more than Congress has passed for all fiscal years since then, combined.
The House still routinely passes free-standing appropriations measures. For fiscal year 2015, the House has passed seven such bills. The Senate, by contrast, has passed zero. Not only has the Senate passed none of its own, it has refused to pass – or even vote on – any of those passed by the House.
Before the Democratic leadership took control of the Senate, Congress would spend most of the spring and summer of each year discussing, debating, and eventually figuring out how much taxpayer money to spend and on what.
Congress would consider separate spending bills, one-by-one. Each of these bills would allocate money to fund the departments, agencies and programs within a certain area of the government – like defense or transportation, homeland security or health care. And each spending bill originated in one of the corresponding subcommittees in the House and Senate.
This is what we call “the appropriations process,” and it made sense that it would take up most of our time, because, as members of Congress, we have a solemn obligation to represent the people and to be faithful stewards of taxpayer money.
That is how Congress is supposed to operate, according to its own rules, according to historical precedent, and, more to the point, according to common sense.
But times have changed. What Congress used to deliberate on for months, we now rush through in an afternoon... without opportunity for amendment or full debate. What used to be the subject of open and robust debate is now trivialized and treated as a formality.
Mr./Madame President, the American people deserve better. Indeed, as I discovered while visiting with people from one corner of Utah to the other, the American people demand we do better.
I think we can and we must.
Sep 11 2014
“Attention all citizens! To assure the fairness of elections by preventing the disproportionate expression of the views of any single powerful group. The government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate.” This is a statement that I have taken directly from a dissenting opinion issued by associate justice Antonin Scalia in a case called Austin v. Michigan Chamber of Commerce. A 1989 ruling of the Supreme Court of the United States.
The concern expressed in that dissenting opinion, the opening line of which I have just read, comes to mind when we review the legislation in front of this body right now, Senate Joint Resolution 19, an attempt, a wholesale effort to repeal the First Amendment of the United States, to undo its most fundamental protections, protections that protect the right of every American to speak out on issues of public concern, to try to influence the outcome of elections, to try to dictate the course of our entire country.
Now, fortunately, this precedent that Justice Scalia was expressing concerns with was overruled. It was overruled in a case called Citizens United, which has itself become the target of S.J Res 19.
In other words, because the Constitution has now been properly interpreted to protect the right of the American people, to join together and form voluntary associations and to use those associations to try to influence the outcome of elections, my colleagues across the aisle have decided, rather than to follow the Constitution, to change it. Rather than to follow its dictates, to get rid of those portions that would interfere with the power of government.
This is something we cannot tolerate. This is something we cannot ignore. This is something that we must do something about, and we have to do it today.
As Justice Scalia explained in his dissent in the Austin case, this principle, this type of approach whereby we allow the government to limit the expressive capabilities of the American people, to limit the ability of the American people to form voluntary associations and speak out on matters of public concern is utterly contrary, not only to our case law, but to the text of the first amendment, and it's inconsistent with the absolutely central truth underlying the first amendment.
And the idea here is that government cannot be trusted to assure through censorship and make no mistake. That's what this is about, is censorship. The quote -- unquote -- fairness of political debate.
So we're here ostensibly to debate the relative merits of senate joint resolution 19. Which would up-end well over two centuries of understanding that there are certain things the government can't do, there are certain things the government would never be trusted to do, the government can't censor our speech, particularly our political speech.
We're here to debate that, and yet among those who have introduced this legislation, among those who have sponsored this legislation, we've heard, if I'm not mistaken, from only two. We've heard two speeches.
This is a profound and disturbing message to the American people. We're trying to up-end the cornerstone of American republican democracy, and yet we've had two speeches in support of it. This is something that ought to alarm us terribly.
I was pleased to hear moments ago from my distinguished colleague, the senior senator from Illinois. I respect the senior senator from Illinois. He and I have worked together on a lot of pieces of legislation. We have worked together most recently on the Smarter Sentencing Act, which I think is an important bipartisan attempt to reform our federal criminal sentencing code which is in serious need of being reformed.
I also respect the senior senator from Illinois for some statements that he made a few years ago when another amendment had been proposed. I at least respect the approach that he took in urging caution before undertaking any effort to undo, to weaken, to undermine the bill of rights.
Here is a statement that he made on June 26, 2006. “The Bill of Rights has served this nation since 1791, and with one swift blow of this ax, we're going to chop into the first amendment.”
He was concerned about that. He was concerned also when on the same day he made a similar comment. Instructive here I think when he noted that it is a matter with which we will likely debate the rest of this week, the week in which he was speaking in 2006, meaning this is an urgent matter. It's a -- it's a matter of great concern to the American people. When we are talking about changing the first amendment or any component to the Bill of Rights.
He continued – “the reason we're going to spend this much time on it is because this document, this one-page document in that case, represents the risk change in America. If this amendment were to be ratified, it would mark the first time in our nation's history that we would amend the Bill of Rights to the United States constitution.”
On the same day he also said “It takes a great deal of audacity for anyone to step up and suggest to change the constitution. I think we should show a little humility around here when it comes to changing the constitution. So many of my colleagues are anxious to take a roller to a Rembrandt.”
I couldn't agree more, especially when we're talking about not just freedom of speech, but poor political speech, which is the subject of senate joint resolution 19.
Make no mistake -- the fundamental purpose, the most important objective underlying the free speech clause and the free press clause was to protect the right of the people to engage in political speech and make no mistake, the purpose of this amendment is to enhance congress' power to restrict political speech.
In fact, its entire purpose focuses on efforts to spend money to influence elections, the core of political speech.
Let's go back for a minute to the dissenting opinion issued by justice Scalia in the Austin case I referenced a few minutes ago. He explained in that dissenting opinion that there are some things that we understandably don't want government to do. There are a lot of things that we do in the Constitution that are all about outlining what the powers of government are.
We explain what power congress has, what power the president has. We explain further that power is not delegated to congress or reserved for the states or to people. And then we also identify in the Bill of Rights that there are certain areas that are just out of bounds for government, areas where we don't want government to tread. This is one of those areas.
As justice Scalia explained, the premise of our Bill of Rights is that there are some things, even some seemingly desirable things, that government cannot be trusted to do.
The very first of these is establishing the restrictions upon speech that will assure --quote, unquote -- fair political debate.
The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.
This is what we face here. This is the risk we face here. We're assured by the proponents of this legislation -- that is, both of them, both of those who have shown up so far to speak in support of this -- that this will still allow debate to occur, and yet how are we to believe this when what they're proposing is to expand congress' power to limit that right to participate in an open public debate, to undertake efforts to influence the outcome of elections and thus dictate the course of an entire nation?
Justice Scalia concluded with the thought that as he put it, the premise of our system is that there is no such thing as too much speech. That the people are not foolish, but intelligent. And will be able to separate the wheat from the chaff.
He refutes the notion that a healthy democratic system can survive the legislative power to prescribe how much political speech is too much, who may speak and who may not. When we try to weaken this understanding, we're playing with fire.
Whenever congress attempts to expand its power -- for that matter whenever any government attempts to expand its power, it does so inevitably at the expense of individual liberty.
Here where it tries to expand its influence over political debate, where it purports to have the ability to expand its power over core political speech, it does so inevitably, inescapably, unavoidably at the expense of the free expressive rights of a free people.
This is one of the main core principles upon which our country was founded. We became a nation against a backdrop in which we found ourselves subject to a large, distant, powerful national government one headed by a king and a parliament. Our former London-based national government recognized no boundaries around its authority. It had for centuries interfered with the right of the people to express their grievances. It had for centuries supported criminal actions against persons who engaged in what they described under their laws as seditious liable.
In other words, if you if you criticized the government, if you criticized a government official, you could be and presumably would be criminally prosecuted for doing so. Truth was not a defense. In fact, truth made it even worse from the viewpoint of the government because it was more difficult to refute.
So people were routinely prosecuted for criticizing the government. We cannot, we must not take even one step in the direction of expanding government's authority when it comes to speech that is at the core of our political system.
Look, our political system isn't perfect. Our political system isn't something that everybody necessarily is inclined to enjoy. But our political system does keep us free and it keeps us free only to the extent that individuals are allowed to speak their mind without fear of retribution from the government.
Only to the extent that individuals, rich and poor alike, are able to say what they want and join together and form voluntary associations for the purpose of influencing the outcome of elections so that they can have some chance at standing up to a big government that affects so many of their rights, that affects so much of how they're going to provide for the needs of their families and their communities. When the people are intimidated by a government that recognizes no boundaries around its authority, everyone suffers.
This, Mr. President, is an issue that is neither republican nor democratic. It is neither liberal nor conservative. It is simply American.
It's time for the American people to stop simply expecting congress to continue to expand its power at the expense of their individual liberty.
It's time for the American people to stop simply expecting that their rights have to bow to the interests of all-powerful incumbency in Washington, D.C.
It's time for the American people to expect more. It's time for the American people to expect freedom.
We expect freedom and we will defend freedom when we defeat senate joint resolution 19. Thank you, Mr. President.
Aug 21 2014
It is my distinct privilege to welcome all of you to the inaugural – and hopefully first annual – Utah “Solutions Summit.”
In future years, the theme of the conference will change, but the purpose will stay the same. We want to bring together Utah’s leaders – in business and civil society and all levels of government - to discuss what we can do together to meet the greatest challenges facing our state and our country.
This year, we decided to focus on reforming our regulatory system. It’s one of the greatest challenges facing our country, holding back economic opportunity, and stifling American exceptionalism.
When you talk to people in the private sector – whether people in large corporations or very small businesses, non-profit groups, too – that word comes up again and again: stifling.
Government regulations have put up so many barriers that people today sometimes feel like they can hardly move.
And the effects on our nation are enormous. For instance, our economy is becoming less entrepreneurial. Business start-ups have been declining for years. This is dulling our economy’s competitive edge. That may be tolerable for some people fortunate enough to have already succeeded in life, but for young people just starting out, for poor families trying to work their way out of poverty, for middle class families facing increasing uncertainty... stagnancy is crippling.
The United States is facing an opportunity crisis, up and down the economic ladder, and government is too often only making it worse.
Millions of Americans are out of work – many are long-term unemployed. Yet today one out of three jobs requires a government license – government permission just to work.
And once you do have a job, there are thousands of pages of Don’t do this... Not like that... That’s not approved.
Now, government may mean well... But that’s no excuse for smothering people with so many nagging rules that they squeeze all the adventure, discovery, and freedom out of life. Government has become like one of those “helicopter parents” you see at the park, nervously hovering over their children to make sure they only ever do perfectly safe things and only under mommy and daddy’s supervision.
When we see these helicopter parents – and my kids tell me the really tough ones are called “Black Hawks” – we wince, right? Not only for the parents themselves, who we know are unnecessarily stressed out of their minds. But we feel for those kids, too, who never get to explore and overcome the challenges in life that enable growth and make us all who we are.
That’s what regulations are doing today. Just a few weeks ago, the federal government issued new rules that effectively ban school bake sales. A few years ago, Washington banned the production of incandescent light bulbs. The federal government still regulates how large a toilet tank you’re allowed to have in your house. The city of New York recently banned Big Gulps. Supposedly this is all for our own good – government knows better.
But these and other rules do not protect the American people from themselves – they prevent the American people from being themselves. And they prevent the economy from growing and innovating accordingly.
This isn’t the so-called Nanny State – that’s an insult to a lot of great nannies! This is “helicopter government,” hovering over us like an overbearing parent.
But there are two problems with this arrangement. First, we’re adults. And second, the government is the American people’s child, not the other way around. We created it. We’re supposed to tell it what to do. We’re supposed to define its boundaries.
So we should not see reforming the regulatory system as a kind of ideological revolution. It’s more like giving Washington a badly needed time-out.
I don’t need to recite to you statistics about how our $2 trillion federal regulatory state hurts businesses and holds back our economy. You are the ones who work in those burdened businesses in this sluggish economy, and so you know the problem first-hand.
But there is one statistic worth highlighting. To my mind it’s a key to thinking about solutions to our regulatory problems.
The figure is: 51-to-1. This is the ratio of regulations issued by bureaucrats to laws passed by Congress in 2013.
A lot of people say the explosion of the regulatory state is a usurpation of congressional authority. But it’s more like subcontracting. Congress has given the executive branch this authority for its own convenience.
We get to pass laws and boast that we “did something.” But then if it doesn’t work out, we can join the public in outrage against those incompetent bureaucrats who messed up.
Seen in this light, helicopter government is actually a win-win for Congress: all credit, and no blame. After all, as legal scholar John Hart Ely put it, “Accountability is pretty frightening stuff.”
But it’s not win-win, is it? Though it may make individual politicians’ re-elections easier, it is corroding public trust in our political institutions. The American people are tired of bad public policies, and their elected officials’ most common response is that it’s someone else’s fault.
So as we think about solutions to America’s regulatory sclerosis, we need to think about more than just better regulations. We need to think about the underlying system, to once again line up the incentives of the policymakers and the public they serve.
And that’s exactly why we’re here today: if Congress ever takes up real regulatory reform it’s going to be because of a coordinated, constant effort from outside the Washington beltway. That includes everyone in this room, because, like most Americans, the citizens of Utah are practical people, who specialize in solving problems, not manufacturing them.
So we’ve got two problems to solve here. First, the cost of regulations to our economy, and second, the dysfunction unaccountable policymaking visits on our society. I’d like to add a third point to consider, as well.
One of the biggest problems with regulations is that they are rarely evenly distributed throughout the economy. Rather, rules are written in such a way that specifically hurts some businesses and helps others. This is not only unfair – it is corrupting. It incentivizes businesses to invest their money in influence instead of innovation.
There is a reason that Washington, D.C. is home to six of the ten wealthiest counties in America today – despite the fact that it produces almost nothing of intrinsic economic value to the economy.
And because all these regulations usually increase overhead costs, they tend to be more easily borne by large, incumbent businesses than by smaller, younger start-ups.
But it’s precisely those new businesses that produce the majority of job creation, and inject into the economy the competitive energy that compels all firms to constantly adapt and innovate.
And as difficult as regulations can be on new or would-be entrepreneurs, they are far more destructive to far more vulnerable Americans, the poorest among us, trapped in the margins of our society.
The only way for individuals and families with low incomes and low skills to climb the economic ladder is to work more, work harder, and acquire new skills. But government regulation of commerce, labor, and education all conspire to pull that economic ladder up out of the reach of the Americans grasping for those bottom rungs. The regulatory status quo is leaving them behind – and we have a moral duty to change that.
So regulatory reform, then, should have three goals:
- Freeing the economy from the stifling burdens of helicopter government;
- Restoring political accountability to the regulatory process; and
- Restoring equal opportunity for all businesses and all Americans, so that success in America is earned, not earmarked.
And happily, even with the helicopter government hovering overhead, the American people are starting to re-assert their control over their own economy.
Everywhere you look, you see the growth of the so-called “sharing economy.” Companies like Uber, KickStarter, and AirBnB have followed the lead of eBay and Craigslist and found success by tapping into the greatest resource in our entire economy – our people.
Personally, I don’t love the term “sharing economy.” Because in a free enterprise system, every business is in the sharing business – collaborative cooperation for mutual benefit. That’s the definition of free enterprise.
At the end of the day, Uber is no different from 7-11. The genius of the market is that it ties personal success to interpersonal service. It’s part of what has always made America strong and prosperous and exceptional.
But these companies increasingly find themselves the target of regulatory interference, driven by special interests that are trying to use the power of the state to protect their status-quo privileges.
Here we have concrete examples of exactly the kind of start-up capitalism the American people need, and the kind of unfair, un-American regulation we are here today to talk about solving.
So the question before us today is: how do we create a system that provides clear, commonsense regulations that help the economy work while protecting the American people’s freedom to earn their success in the market?
That’s what we’re here to discuss, and I look forward to hearing your ideas.
From my perspective in the Senate, I think accountability has to be a part of the answer. People who face regular election would never support many of the regulations we’re dealing with. And they don’t want to have to.
I think we need to take that option away from them. I think we need to start moving the regulatory process out of the nameless, faceless bureaucracy and back into Congress. Right now, the main reason government imposes onerous regulations is that no one gets fired for it. If Congress were directly accountable for them, you can be sure heads would roll in the next election. That’s where change comes from – by forcing government to work for the people instead of the other way around.
There are a couple of ideas out there to move policy in this direction. One idea is the REINS Act, which I am co-sponsoring along with Sen. Rand Paul.
Another idea that I’ve been working on, which I’ve discussed with some of you and hope to get more input going forward, is a new congressional regulatory budget process.
The idea would be to force Congress to vote every year on the amount of regulatory cost each federal agency could impose on the economy. We could debate it, get input through an oversight process, and force ourselves to prioritize. Which rules are essential, and which are just getting in the way?
Forcing Congress to take ownership over the laws imposed on the American people will improve the incentives for us to finally get those rules right. At the very least, it could bring some valuable discipline to the system and start to clear the brush of outdated and unnecessary regulations.
I’m happy to discuss these ideas more with you throughout the day. But we organized this event to listen. To get this right, we need specialized knowledge about the industries and businesses that actually have to live under all these regulations. And that’s why we invited you all here today.
There is an old saying in politics that you can’t beat something with nothing. It seems to me that those of us who want a better regulatory system have to do more than just oppose the one we have; we need to propose the one we want.
My goal for this conference is to begin a dialogue that can help inform policymakers at every level of government to start defining and refining exactly what a modernized, reformed regulatory system would look like. Thank you very much.
 Quoted in “Congress and the New Administrative State,” The Heritage Foundation.
Aug 13 2014
Remarks at the Reagan Ranch
It is more than an honor to be with you here today. For a conservative politician, speaking at Rancho del Cielo is like a musician playing a set at Sun Records or a ballplayer taking the field at Fenway Park.
I am humbled by the opportunity.
My first real exposure to the Reagan Administration occurred when I was about ten years old. My father, the late Rex E. Lee, served as the Solicitor General of the United States during President Reagan’s first term in office. It is the job of the Solicitor General to serve as the federal government’s advocate before the U.S. Supreme Court. Like every lawyer, the Solicitor General has a client—it’s the federal government, and specifically the presidential administration in power. As a practical matter, that meant that my dad was President Ronald Reagan’s voice in the Supreme Court.
When my dad was nominated by President Reagan and was confirmed by the Senate, my family made a move from our familiar surroundings in Provo, Utah to McLean, Virginia, a suburb of Washington, D.C. When school started in the fall of 1981, I was full of apprehension, and with good reason. The D.C. area somehow didn’t seem nearly as friendly as Provo. I felt like an outsider at my new school. And I was.
I tried to take some comfort in knowing that my dad was doing exciting things for the country as a key official in the Reagan Administration, which (even as a ten-year-old) I understood would be historic.
I still remember when my dad was getting ready to make his first appearance before the Supreme Court as President Reagan’s Solicitor General. He readied his “morning suit,” the ceremonial uniform traditionally worn by the Solicitor General in the Supreme Court; it consists of a long-tailed coat and striped pants. While embarrassed at the mere thought of my dad appearing in public dressed like that, I was intrigued by his new job and wildly curious about what went on in the highest Court in the land.
Although I didn’t understand everything that went on in the Court, I loved to watch my dad argue there, advancing the official positions of the Reagan Administration on important issues involving the Constitution and the role of the federal government. What I learned most of all, perhaps, is that there is a cadence and a rhythm to being a good advocate for good government.Just as there is a familiar cadence among skilled lawyers, there is also a familiar cadence to conservatism. No one understood that cadence better or mastered it more completely than Ronald Reagan. He had the cadence of confidence. He had the cadence of courage. He had the cadence of compassion.
The next time you place a call to the Reagan Ranch, you should hope to be put on hold. If you are lucky enough to have that happen to you, you will hear that confident cadence of courage in the voice of Ronald Reagan. It is my hope that today and moving forward, those of us who honor his legacy will not just talk about him, but listen to him, and do our best to learn from and ultimately act like him.
For all Americans – but for conservatives and Republicans in particular - the legacy of Ronald Reagan will always serve as an inspiration. But it should also serve as a challenge.
It’s that part – Reagan’s enduring challenge to the movement and the party and the nation he revived – that I’d like to discuss today.
As you know, this is the 33rd anniversary of President Reagan’s signing of the Economic Recovery Tax Act of 1981.
Today, conservatives tend to think of that moment as the beginning of Reagan’s – and the country’s - triumphant era, which would eventually usher in the longest peacetime recovery in American history, victory in the Cold War abroad, and the restoration of the American Dream at home.
Twenty million new jobs. A forty-nine-state landslide. “Tear down this wall.” “Shining city on a hill.” Cadence and courage.
That’s the Reagan conservatives all remember and revere. But I submit that is not the only Reagan conservatives need to study and emulate most today.
The obvious achievements following August 1981 provide a showcase of what we can learn from our 40th president. But some of the most important lessons we can take are from Reagan’s hard and heroic work leading up to his electoral victory in 1980.
The four-year stretch between 1976 and 1980 was a time similar to our own. The unemployment rate was coming down, but still too high. The economy was recovering, but not enough to restore broad prosperity. Energy dysfunction, rising prices and an unfair tax system were eating up what gains working families did see in their take-home pay.
But it wasn’t just about statistics. Humiliating failures of leadership at home and abroad throughout the previous decade had taken their toll as well. A psychological pall was descending on the country, leaving Americans uncharacteristically anxious and pessimistic. When grinding stagflation steered us toward yet another recession, many Americans began to wonder if our best days had come and gone.
It was in that time, in my view, that Reagan did perhaps the most important work of his career.
Ronald Reagan in the late 1970s was a prominent figure, but not a powerful one. He was no longer governor. His primary challenge against a sitting president of his own party had failed, and made him a pariah among a resentful Republican Establishment in Washington.
And the conservative movement he led was once again in the political wilderness.
The situation was bleak. But, as always, where others saw obstacles, Reagan saw opportunities.
He saw what too many in Washington did not: that a disconnect had opened between the American people and their leaders. President Carter’s approval rating fell into the 30s, and Congress’s into the 20s.
The Republican establishment – timid and unimaginative by nature - hoped the Democrats’ unpopularity might allow Republicans to win a few elections by default.
But this status-quo strategy did not interest Reagan.
Reagan wanted to build a new Republican Party, a new majority coalition, a new conservative movement that would not just cut across party lines... but permanently redraw them.
Reagan noticed that, aside from America’s political and economic elite, the rest of the country suffered under increasingly liberal policies. The political, corporate, and media opinion leaders were doing just fine. The people shouldering the brunt of big government’s failure were the working men and women of and aspiring to America’s middle class.
They were the ones whose neighborhoods saw rising crime rates. They were the ones whose communities were threatened by family breakdown. They were the ones whose jobs were hanging by a thread. They were the ones whose children couldn’t to go to college, whose sons and brothers came back from Vietnam only to be insulted by those they had fought to protect.
They were the ones who couldn’t afford gas and groceries because of the energy crisis and inflation.
Unlike the poor, who attracted Washington’s sympathy, and the rich, who could influence public policy, the mass of Americans in the middle were being ignored, slighted, and left behind by the political class in Washington.
The 19th century economist William Graham Sumner had a term for the American caught in the middle: “the forgotten man.”
As Sumner put it in his famous essay of the same name:
“[The forgotten man] works, he votes, generally he prays-- but he always pays--yes, above all, he pays... his name never gets into the newspaper except when he gets married or dies... He is strongly patriotic. He is wanted, whenever, in his little circle, there is work to be done or counsel to be given... All the burdens fall on him, or on her, for ... the Forgotten Man is not seldom a woman.”
It was these familiar friends and neighbors from all races and creeds and regions - people all Americans know and most Americans are - that Ronald Reagan believed made our nation good and great and beautiful. They were the ones, Reagan understood, conservatism could help the most.
Indeed, in a National Review essay a month after the 1964 election - before his name was ever on a ballot - Reagan reminded a defeated conservative movement:
[QUOTE] “We represent the forgotten American-that simple soul who goes to work, bucks for a raise, takes out insurance, pays for his kids’ schooling, contributes to his church and charity and knows there just ‘ain’t no such thing as a free lunch.’” [UNQUOTE]
To Ronald Reagan, these Americans were never forgotten.
From the beginning, he built his politics around a profound respect for the honest, hardworking men and women who made America work.
Many of these Americans, like Reagan himself, believed government should stand on the side of the little guy against unfair concentrations of political and economic power.
They still believed that. And so did Reagan.
It’s just that by the late 1970s, the Democratic Party’s leadership in Washington had gone Washington. The New Left did not oppose, but had come to enjoy, the unfair privileges of concentrated power. The ruling class in Washington not only ignored working families’ interests, but openly disparaged their values.
Now, Reagan knew that while middle class Americans were disillusioned with Washington Democrats, they were equally suspicious of Washington Republicans—with good reason. Liberalism may have been failing, but to many Americans in the late 1970s, conservatism was at best a cobwebbed theory.
Reagan needed a way to transform this anti-liberal majority into a pro-conservative majority.
He didn’t want to spin them, or play on their fears. He respected them: he wanted actually to persuade them.
He knew that abstract theories and negative attacks weren’t going to cut it. Reagan needed to make conservatism new, real, and relevant.
He rebuilt conservatism with a concrete agenda of innovative reforms to directly help and empower all of the forgotten Americans whom liberalism always leaves behind.
He advocated marginal tax-rate reduction. This, Reagan correctly promised, would allow workers to keep more of their own income, raise wages, and create new jobs.
He advocated a strong dollar. This, Reagan correctly promised, would help us gain control over the inflation that was gnawing away at middle-class wages, savings, and aspirations.
And he advocated an aggressive defense build-up. This, Reagain correctly promised, would help us expose and defeat an aggressive, atheistic, and violent empire that threatened the life of every American, and the future of every child.
So often, Reagan’s success is chalked up to his personal attributes - his charm, his humor, his political and communication skills. He had all those things when he ran for president the first time. But alas, those personal attributes alone were not enough.
We must always remember that in 1976, conservatives found a leader for the ages... but they still lost. By 1980, they had forged an agenda for their time, and only then—with an agenda and a messenger for that agenda—did they win.
Armed with this agenda, Reagan not only confronted liberalism head-on, he also connected with those long-forgotten Americans by aligning his movement, his party, and his message around them.
It’s time for us to do it again.
The similarities between the late 1970s and today seem to grow by the hour.
Now, as then, our economy is struggling. The great American middle class is beset with anxiety. Stagnant wages don’t keep up with the rising cost of living. For too many Americans, opportunities seem to be narrowing, and the American Dream seems to be slipping out of reach.
Meanwhile, a chasm of distrust is opening between the American people and their government. Both parties are seen as incapable of producing innovative solutions to growing problems, or uninterested in even trying. Reagan’s “forgotten Americans” are once again being left behind.
Once again, the Left has betrayed the trust of the American people. But the Right has not won it back.
So it seems to me that conservatives today need to do what Reagan did in the late 1970s: identify the great challenges holding back America’s working families, and propose concrete, innovative solutions to help overcome them.
Just like Reagan did, as conservatives today we need to re-apply our principles to the challenges of the moment. We need to offer the country a new, positive reform agenda that remembers America’s forgotten families and puts the federal government back on their side.
A real conservative reform agenda has to do more than just cut big government. It has to fix broken government. Reagan did just that a generation ago. Since then, new challenges have emerged, demanding repair – and conservative principles can once again point us toward exciting, innovative solutions.
I find it interesting that most Americans feel forgotten, left out of the debate, left behind in their efforts to get ahead, while shouldering the burdens of failed policies, without a voice in what matters most. The ironic part of having a podium and a microphone is that most Americans want someone in Washington not to speak to them, but to listen to them. “Fix it,” they say. “Turn it around,” they demand. “Will government ever work for me, or will I always be working for it?”
Reagan listened to the forgotten and the disillusioned American. Can we be our best? I know that we can at least be better. Congress can do better. We can expect more out of our leaders, more out of ourselves. We can fix, cut, and tear down walls that confine our liberty—in any era. We can expect more. We can expect reform.Let me give you a few examples.
A conservative reform agenda needs to reduce taxes for families. Today, marginal tax rates are much lower than they were in August 1981. They are so low that almost half of all households pay no income tax. But most working families are still overtaxed, some by thousands of dollars a year. How? Because of the hidden double tax the current system imposes on parents through the payroll tax to fund our senior entitlement programs.
Many tax-reform plans today ignore this problem, and would actually raise taxes on working parents.
For single parents, this might as well be a “Keep Out” sign on the front door of the middle class. It’s an unfair attack on individuals, families, and neighborhoods – forcing them to make decisions based on what government wants instead of what they want.
Conservative tax reform today needs to fix this unfair parent tax penalty, to level the playing field for the hardworking families raising the next generation of Americans.
A conservative reform agenda also needs to spur economic growth.
New jobs come from new businesses. But all the taxes and regulations government foists on the economy actually hurt newer, smaller businesses and help large, politically connected corporations, which can afford all the lawyers and lobbyists to comply with all the rules. People who fear that the economy is rigged today are right. It is, and government rigs it.
Today in Washington, economic policy is driven by a corrupt alliance of big government and big business conspiring to keep out the new, disruptive competitors that innovate, transform, and create new jobs and growth.
True conservative reform should level the playing field for all businesses – small and large, new and old. That’s where new jobs, innovation, and growth come from – from Main Street, not Wall Street, K Street, and Pennsylvania Avenue.
Look at our nation’s infrastructure. America needs more highways, more bridges, more local transit. But the old federal transportation trust fund is now permanently insolvent because 20% of the money it takes in is skimmed right off the top by special interests, bureaucracy, and inefficiency.
Real conservative transportation reform could cut out those Beltway middle-men. We need to create a 21st-century, open-source transportation network of sustainable, local innovation that empowers America’s diversity and ingenuity.
Another example is our broken higher-education system.
Today, the exploding costs of and restricted access to college are leaving millions of workers without the skills to succeed in the global economy. Millions more are being saddled with more debt than they’ll ever be able to repay.
Washington sees this structural dysfunction, and immediately launches into an argument about... the interest rate on student loans. We shouldn’t be arguing about tenths-of-a-percent on $40,000 tuition – we should be fixing the system so college doesn’t cost so much in the first place. And we need to increase access to new schools that can accommodate the needs of non-traditional students, like single parents, who can’t afford to study full time.
A conservative reform agenda must confront a welfare system that isolates the less fortunate. A reformed system would start to bring the poor back into our economy and civil society.
Real welfare is not about dependency, but mobility – designed to make poverty temporary instead of just tolerable.
A conservative reform agenda must include plans for an energy revolution. Just look at what’s going on in North Dakota and Texas and elsewhere. Let it create all the jobs and opportunities and energy independence it can. Let all energy producers compete on a level playing field – new technologies and old, large businesses and small – with equal opportunity for all and cronyist subsidies and special treatment for none.
And finally, this approach shows us that we can’t just cut Obamacare, or even repeal it and go back to the old system we had before. Instead, we need to move forward with real healthcare reforms that empower patients and doctors, not big government and big insurance companies.
Under the radar of the mainstream media and Beltway politics, the conservative reform agenda we need is starting to take shape.
As you can see, the content is different from Reagan’s agenda. But the goal is the same – reforming outdated policies to put government back to work for those forgotten Americans ... growing our economy and strengthening our society... and finally bringing the American Dream back into the reach of every American willing to work for it.
Like Reagan’s, the agenda I am describing is based on something too often missing in our politics today: respect for the American people.
As president, Ronald Reagan understood that the forgotten Americans were the people really in charge. And they still are.
The people – not billionaires on Wall Street - are the customers who decided which products and services and businesses would rise and fall.
The people – not the activists and academics and celebrities – decide the values that guide our neighborhoods and define our culture.
And Ronald Reagan was okay with that. He celebrated it.
His agenda was designed to give ordinary Americans even more power to make those decisions. He respected them and trusted them, and thought the government should simply get out of the way. He knew the answer was not to get America to trust Washington; it was to get Washington to trust America.
Today, some see it as ironic that as Reagan decentralized power to a diverse, divided nation... we came back together. But it’s not ironic at all. It’s the tried-and-true genius of the American way of life that has sustained our exceptional republic for more than two centuries.
Reagan’s agenda was an attempt to empower Americans to come together to make our economy more wealthy and our society more rich.
Reagan knew – and proved to a cynical elite – that freedom doesn’t mean you’re on your own; it means we’re all in this together.
And really, that is Ronald Reagan’s enduring challenge to conservatives, and Republicans, and all Americans: to believe in each other. To trust and respect the courage and industry and wisdom and ingenuity and compassion and hope of our people.
A renewed commitment to reform can not only put America on the path to recovery, but reunite our nation after too many years of bitter division... and empower our people after too many years of falling behind.
A new generation of problems demands a new agenda of solutions: to answer Reagan’s challenge, and to once again remember America’s forgotten families.
Ronald Reagan signaled the cadence of courage from this spot 33 years ago. It still echoes from these hills. Today our duty is to answer the call.We must dare to be better. Dare to look ahead past the next election, into the next decade and beyond. Dare to make the changes today that will shape the America of the future.
Enlist as 21st-Century Reagan revolutionaries. See beyond the next eight years into the next 80. Join me in taking the road less traveled. We are the forgotten Americans who have new ideas, start businesses, start families, volunteer as room mothers and little-league coaches, we are the flag raisers, the builders, the workers and the inventors. We are the dreamers and the stewards, we are the shopkeepers by day and the homemakers at days’ end.
We are the people who James Madison, George Washington, Thomas Jefferson, and Abraham Lincoln, had in mind and Ronald Reagan did not forget. We are the light emanating from the city on a hill; we are the keepers of the flame, the guardians of liberty.
We are the people—the unassuming heroes marching forward in Reagan’s cadence of confidence in that quiet adventure we still call the American Dream.
The situation at the border is heartbreaking. Tens of thousands of single adults, families and children have made an incredibly dangerous journey north from countries like Guatemala, Honduras, and El Salvador.
They are leaving theses countries because they offer too little opportunity and are mired in poverty and violence. No one begrudges them for wanting to find a better place to live.
Americans are compassionate and generous. The American people always have extended and always will extend a helping hand to every corner of the world. And even as the number of illegal border crossings has exploded over the past year, we have treated these individuals with dignity and respect.
Today we have on our southern border a multi-faceted crisis facing the entire country. But President Obama is not interested in solving the humanitarian problem... or the security problem, or the legal problem, or the fiscal problem.
He is interested only in solving a personal, political problem: avoiding blame for this crisis which he himself has created.
For years, the president’s clear message to the world has been that he is not interested in enforcing or fixing America’s immigration laws.
He is unconcerned about strengthening our border, improving our entry-exit system, or bolstering workplace verification.
He has made no effort to fix our visa system so that we have an efficient process to serve immigrants trying in good faith to obey the law.
And he has ignored serious immigration reforms that would solve these problems.
So what has the president been doing on immigration? Systematically undermining the rule of law by ignoring laws on the books, taking action he has no authority to take, and blaming others for the consequent failures.
And that’s what has led us here today, considering what hypothetical actions Congress can take to address the real crisis the president has created.
But Mr./Madam President, the solutions to this immediate crisis - and our longer-term immigration needs as well - begin with the president finally enforcing the law.
There is no amount of money Congress can spend... there is no new law that can solve this crisis if the president and the leadership of his party continue down their lawless path.
There are several steps the president can take - immediately – that do not require any action by Congress or another dime from the American people.
He can stop abusing “prosecutorial discretion.” He can end the DACA program which provides administrative amnesty and work permits to those who entered the U.S. illegally as minors.
He can close the door to any further expansion of DACA to millions of additional adults. And he can signal his commitment to this solution by quickly returning those who enter the U.S. illegally to their home countries.
But by announcing to the world that he will not enforce laws requiring DHS to process and return those who come here unlawfully, the president is encouraging hundreds of thousands of children and adults to make a very dangerous journey to come to the United States illegally.
He is encouraging families to pay coyotes controlled by drug cartels thousands of dollars to smuggle their children into the U.S.
That is truly the humanitarian crisis.
And the President’s threats to widen the scope of DACA are only going to make that crisis worse. That is why I agree with my friends Ted Cruz, Jeff Sessions, David Vitter, Jim Inhofe and Mike Johanns that, at the very least, we must take steps to prevent the president from providing any more executive amnesty.
Now, I understand the desire for members of Congress to want to pass some kind of legislation. Members want to be able to go home to their constituents over the August recess armed with a talking point that suggests they’ve done something about the border crisis.
But I would argue that the bill before the Senate today is just a distraction from the true cause of and solution to the crisis.
Congress could send the president a bill with billions of dollars in aid and multiple policy changes, but none of these will work unless the President makes a commitment to enforce our laws and secure our southern border.
As with so many bills Congress takes up these days, this legislation does not solve the American people’s problem – it only solves Washington’s problem.
President Obama already has the authority to correct his failed policy, restore the rule of the law to our immigration system, and solve the crisis on the border. He just doesn’t want to, and the American people are paying the price.
One of the reasons we have a Constitution of separated powers is that when presidents try to be legislators too... they tend to be bad at both jobs.
The crisis on the border is of the president’s own making, and its solution is already in his own power.
I stand ready to work with the president and his party to craft solutions to these problems. We all do. But until President Obama enforces the laws he is sworn to administer, those solutions will remain out of reach.
For all the good intentions, all the good will, all the compromises in the world... Congress cannot do its job until the president finally does his.
Jul 29 2014
We are here today because our federal highway policy status quo is not working. And it hasn’t been for a long time.
This is the sixth time American taxpayers have been asked to bail out the Highway Trust Fund since 2008. None of those patches – $52 billion worth of bailouts in seven years – fixed the problem. And neither will the $10.8 billion authorized by the bill before us today. It will buy us only a few months before we are right back where we are now.
Indeed, this debate is the dysfunction of Washington in miniature.
Here - as in health care, higher education, assistance for the poor, energy, and so many other areas – the federal government has created a permanent, structural problem and responds with duct-tape.
Worse, this bill only solves Washington’s problems – not the American people’s. Under the broken status quo this bill protects and extends, in six months – and in six years - our roads will still be congested.
Too many single moms will still live on a knife’s edge trying to make it to their second jobs across town. Too many dads will still have to leave for work before breakfast and get home after dinner. Children will still look in vain into the empty seats at their piano recitals and Little League games. Commuters will still squeeze into over-crowded subway cars, hold their breath and hope it doesn’t break down... again.
Young families will still be unfairly priced out of neighborhoods near the best jobs and schools. And diverse communities will still be subject to the monotonous inefficiency of an outmoded bureaucracy.
But it doesn’t have to be this way. There is a better way.
The Interstate Highway System is one of the great achievements not only in the history of the federal government, but in all of American history. It unified a sprawling, continental nation by investing in our common destiny. It simultaneously met the economic, social, cultural, and security needs of an emerging superpower. It was and remains a wonder of American innovation and self-government.
More than that, the Interstate Highway System was the daring, audacious work of a young nation, literally on the move, bristling with confidence in its future and its people. With the “Federal-Aid Highway Act of 1956,” Congress threw off the yoke of the status quo and met the needs of a new generation.
Yet today, 58 years later, in a new century with new needs and new technologies and a new economy, Congress anxiously clings to that exact same policy like a tattered security blanket.
Six decades ago, federal highway policy represented a triumph of imagination. Today, our refusal to modernize that policy represents a failure of imagination.
So we’re here with the duct-tape and WD-40 trying to keep this 20th century bureaucracy in place rather than embracing the worthy challenge of building a new mobility policy for the 21st century.
That’s exactly what my amendment – the “Transportation Empowerment Act” – would do.
In 1956, it made sense for the federal government to collect the majority of gas taxes from around the country and then coordinate the construction of a national system. We needed it.
But with the interstate system now largely complete, and most transportation issues today existing at a local level, there is no longer the same need for Washington as a central coordinator. We’ve become an intrusive middle-man.
We need to refocus the federal government solely on interstate priorities and to empower a diverse, flexible, open-source transportation network controlled by the states.
My amendment will empower states and communities to customize their own infrastructure according to their own needs, values, and imagination. It would, over five years, gradually transfer both funding and spending authority over local surface transportation to the states.
Today, the federal gas tax stands at 18.4 cents per gallon. My amendment would lower it, by 2019, to 3.7 cents. In the interim, we would gradually send states more of their allotment without strings, to prepare them for the eventual transfer.
After this gradual transition, Congress would retain enough revenue to continue to maintain the interstate system, which rightly remains a federal priority and core competence. But states and communities would be newly empowered to launch a new era of local investment and innovation.
The idea behind this plan is that not only is there a better way to improve America’s infrastructure, there are fifty better ways - even thousands of better ways. In our increasingly decentralized world, there are as many ideal transportation policies as there are communities across the country.
Washington is standing in the way – imposing obsolete conformity on a vibrant, diverse society. For if we truly love local transportation infrastructure – and who doesn’t? - we should set it free.
Under the Transportation Empowerment Act, Americans could finally enjoy the local infrastructure they want. More environmentally conscious states and towns could finally have the flexibility to invest in more green transit projects and bike lanes. Regions reaping the benefits of America’s energy renaissance could accelerate their infrastructure build-outs to keep up with their explosive growth. Dense cities could invest in more sustainable public transit networks.
Meanwhile, surrounding counties could re-open the frontiers of the suburbs to a new generation of more livable communities. State and local governments will also be freed to experiment with innovative funding mechanisms not tied to the unreliable gas tax. And by cutting out the Washington middle-men, all those states and communities and taxpayers will be able to get more for less.
My amendment would not reduce America’s investment in infrastructure, any more than Uber reduces America’s investment in car service. In the real world, value is not a cost.
Rather, my plan would empower a nation hungry for greater mobility to spend their infrastructure dollars on steel and concrete instead of on bureaucracy and special interests.
Now, some of my colleagues oppose this plan.
Some will offer Washington’s eternal promise: the status quo will work… it just needs more money. The federal gas tax has not changed since 1994, they will say. We are starving the trust fund.
But it’s not true. For in the 12 years prior to 1994, the gas tax skyrocketed 460%, from 4 cents to 18.4 cents-per-gallon. Put another way, since 1982, the federal gas tax has grown by an equivalent of 6.1% per year. Chasing ever-more money will not solve this problem. That’s what we have been doing, and the bill before us today is incontrovertible proof it hasn’t worked.
Others argue that reducing Washington’s role in local transportation would invite economic and infrastructural catastrophe. This makes two peculiar assumptions.
First, it assumes that Washington is uniquely competent in the area of local transportation - even as a long train of abusive boondoggles and Bridges to Nowhere tell us otherwise.
Even more bizarrely, this argument assumes that the fifty states of our exceptional republic, many of which would rank among the wealthiest nations in the world on their own, are unstable banana republics, nursing the development of primitive, hunter-gatherer societies whose only transportation services involve the clearing of woodland paths for their pig-drawn carts.
State and local governments already pay for 75% of all surface transportation infrastructure projects in this country.
In my home state of Utah, one of the best-run in the country, only 20% of our transportation money comes from Washington—the other 80% we raise ourselves. Of course, we raise most of that 20%, too. It’s just that under the broken status quo, Washington middle men take their cut before sending it back to us.
Why not just leave that extra 25% in the states and communities who need and use it in the first place? The states already own and maintain the highways. And local transit projects are... inherently local.
So why not let the federal government focus on interstates? And let Oregonians plan, finance, and build their bike paths and San Franciscans their green-energy transit experiments and Texans their eight-lane express-ways in their own way, tailored to their own needs and values.
All we add to the process here in Washington is unnecessary overhead and self-congratulating press releases trying to take credit for it all.
Finally, many who admit that the status quo is unsustainable nonetheless support it because they believe their particular state benefits by receiving more money back from the highway trust fund than it puts in.
Washington perpetuates the myth that transportation money is “free,” especially for these so-called net “donee” states. But as in every other middle-man arrangement, the status quo policy ensures states actually get less value back than they should.
Federal regulatory strings not only make infrastructure projects unnecessarily expensive. They specifically divert resources away from actual infrastructure, and waste it on special interests and bureaucratic red tape.
The federal Davis-Bacon Act, for instance, costs states an additional 10 cents for every dollar they spend on infrastructure construction projects. Numerous regulations under the National Environmental Policy Act (NEPA) collectively cost state governments an additional nine cents on the dollar. No wonder the Trust Fund needs to be bailed our every year. Washington is charging taxpayers a 20% processing fee right off the top.
I encourage all my colleagues to work out the math for their own states. But for Utah, that means that of the $335 million we receive annually from the Highway Trust Fund, nearly $64 million goes to political overhead instead of steel and concrete.
Everything in our economy and our society today is moving away from rigid, centralized bureaucratic control and toward flexible, open-sourced, community- and individual-empowerment.
The Interstate Highway System met a crucial need in its time, and represented a wonder of innovation. But so did Borders bookstores at one time. So did Blockbuster. So did record stores. So did rotary phones.
Americans still need books and movies and music and communication – and they still get them. Today, those goods are just delivered more efficiently, more affordably, through flexible models customized to the unique needs of individual consumers.
In the same way, Americans still need highways and bridges and subways and bike paths. Indeed, we need them now more than ever. But federal policy hasn’t kept up with the times.
That’s why, even without my amendment, more than 30 states have begun or are considering their own transportation modernization programs. This is just more evidence that the transportation renaissance America needs is one that our centralized bureaucratic status quo cannot deliver – not with another $10.8 billion, or ten times as much.
After six decades - and historic successes - the time has come for a new federal transportation policy that taps the creativity of our diverse nation.
Today Americans are unnecessarily stuck in traffic, stuffed in overcrowded subway cars, missing their kids’ games and recitals, priced out of neighborhoods close to their jobs and spend almost a full 40-hour work week per year stuck in gridlock.
They deserve better than what Washington is offering, which is just the status quo plus a little more money. A new era demands a new approach.
The Interstate Highway System is a success, and the people who created it deserve our admiration. But the way to honor their legacy is to stop imitating them and start emulating them, by investing in an innovative transportation network for our own era just as they did for theirs. Just as it was in 1956, the status quo is once again no longer good enough. We need to transcend it.
The future of American mobility is not a rigid, monolithic, centralized bureaucracy – frozen in amber. It’s a flexible, organic, open-source network of empowered individuals and communities – as diverse as the nation itself.
My amendment would empower Americans to start to build that future together, and I ask all my colleagues to support it.
The most extraordinary feature of the bill before us today is the incongruity between its title and its content.
The title—the “Protect Women’s Health from Corporate Interference Act”—is clear and straightforward. It suggests the bill is aimed at the important and worthy goal of protecting women’s health.
But the text of the legislation plainly demonstrates that the true objective of the bill is to circumscribe Americans’ religious liberties within the narrow confines of the Democratic Party’s partisan agenda and the whims of politicians and bureaucrats.
While maintaining the appearance of preserving all the current legal protections of religious freedom in America today, this proposal quietly adds to them a subtle, yet deeply problematic and inappropriate, qualification: the federal government will not prohibit the free exercise of religion…until the federal government decides it wants to.
Under this bill, your religious liberties stop at the doorstep of the Democratic National Committee.
And so I rise today in opposition to this bill because it doesn’t do anything to protect women’s health and it does much to undermine the bulwarks of liberty enshrined in our Constitution that have made America the most religiously diverse and tolerant nation in human history.
Although this proposal is only the latest maneuver attempted by my Democratic colleagues to assert the power to restrict religious freedom in America, it also represents the culmination, at least for now, of their opposition to the Supreme Court’s recent decision in Burwell v. Hobby Lobby.
On June 30 of this year, the Supreme Court ruled that the federal government cannot force closely held businesses to violate their sincerely held religious beliefs in order to comply with the contraceptive mandate under the Affordable Care Act.
This decision has received a great deal of attention, but for all the wrong reasons.
Contrary to what many critics have suggested, the Hobby Lobby decision did not promulgate national health care policy; nor did it render any opinion on the virtues of contraception and religious faith.
No, the issue in Hobby Lobby involved not a dispute of competing rights, but a straight-forward application of plainly written law.
As the Constitution states in Article III, Section 2, the role of the Supreme Court is to adjudicate legal disputes by hearing “cases and controversies” that arise when two laws come into conflict.
In Hobby Lobby, the two laws in dispute were the Religious Freedom Restoration Act (passed by an overwhelming, bipartisan majority in Congress and signed by President Clinton in 1993) and a federal mandate issued by the Department of Health and Human Services, acting under the powers delegated to it by the Affordable Care Act.
The Religious Freedom Restoration Act (or RFRA) reaffirmed Americans’ commitment to the fundamental religious liberty protected by our Constitution.
With RFRA, a Democratic Congress and a Democratic President – in cooperation with Republican minorities - declared that when the federal government seeks to infringe on Americans’ religious liberty, it must clear two thresholds.
First, it must show that the law in question serves a compelling state interest. And second, if it does, the law must do so by the least restrictive means possible.
Given that the government openly acknowledged there were a number of far less restrictive means to ensure affordable access to the drugs at issue, the Supreme Court rightly ruled that the contraception mandate violated RFRA.
However unwarranted, the overheated response to the Hobby Lobby decision among some ideological extremists on the Left has led some of my colleagues to introduce a bill that would not simply overturn that modest and narrow decision, but fundamentally rewrite America’s social contract as it pertains to matters of personal conscience.
Whereas the Court’s ruling was limited to “closely held,” for-profit companies, like Hobby Lobby, this bill would empower the federal government to coerce employers of all faiths and no faith into violating their deepest personal convictions.
It would deny any employer—devout or secular, individual or corporate, for-profit or nonprofit — conscience protection under RFRA against all present and future government mandates.
Perhaps most troubling is the warped theory of rights underlying the text of this bill.
This theory holds that the American people possess constitutional and legal rights only when acting alone, but not when acting in a group. These rights, along with any duties one may hold as a person of faith, must be forfeited whenever acting in association with others, on penalty of fines paid to the federal government.
This view of religious liberty might be summarized as an amendment to Matthew, chapter 18, verse 20: “For where two or three are gathered together in My name, there is the IRS in the midst of them.”
This view is extreme, out of touch with the constitution, common sense, and America’s heroic history of religious tolerance.
From our earliest days, one of the sources of our strength as a people and one of the reasons for our success as a nation has been our robust understanding of religious liberty. The breadth and depth of that conception has allowed and encouraged people of all faiths and traditions to live here in friendship and cooperation with one another.
As two members of the U.S. Commission of International Religious Freedom put it:
“…respect for the flourishing of people requires respect for their freedom—as individuals and together with others in community—to address the deepest questions of human existence and meaning. This allows them to lead lives of authenticity and integrity by fulfilling what they conscientiously believe to be their religious and moral duties. […] It also includes the right to witness to one's beliefs in public as well as private, and to act—while respecting the equal right of others to do the same—on one's religiously inspired convictions in carrying out the duties of citizenship.”
Expanding as wide as possible the space in which all people can witness their faith alongside one another has for two centuries elevated, enriched, and united American society.
This robust conception of religious liberty was so essential to American unity that not only did the Founding generation reinforce its protection in a Bill of Rights – which many Framers actually thought was redundant – but that it was the first freedom articulated in the first amendment.
They understood, as most Americans still do, that the proper role of government is not to define people’s happiness, but to protect all individuals equal rights to pursue happiness, according to her own hopes and values and conscience.
Yet for all its legal and constitutional protections, America’s exceptional tradition of religious toleration ultimately rests on the uniquely American principle of equal dignity and respect for all women and men, not simply as “fellow passengers to the grave,” but as fellow pilgrims in search of their own promised land.
The authors of this bill know all this. They know the American people reject their intolerance of diversity and indifference to the First Amendment. We know their bill cannot become law. Indeed, we know this for a fact, because if the regulations they support were actually written in the law, Obamacare itself never would have passed. It was slipped in after the fact, by bureaucrats not subject to public accountability.
This legislation is more than an insult to the people it would target; it is an embarrassment to the party leadership that has embraced it.
I still hold fast to that principle and the freedom it preserves, and thus strongly urge my colleagues to vote against this bill.
 “Religious Freedom Is About More Than Religion,” Robert P. George and Katrina Lantos Swett, The Wall Street Journal, July 25, 2013. (http://online.wsj.com/news/articles/SB10001424127887324783204578624510558738282).
The Senate is in the process of considering one of the most important presidential nominations of Barack Obama’s second term. Sylvia Burwell, the current Director of the Office of Management and Budget (OMB), was nominated by President Obama to replace Kathleen Sebelius as the next Secretary of the Department of Health and Human Services (HHS). It is now the Senate’s responsibility to review Ms. Burwell’s candidacy and then vote to confirm or reject the President’s nomination.
While Ms. Burwell has impressed the Senate with her sterling character and credentials, her tenure at OMB, as well as her performance in the Senate committee confirmation hearings, gives me concern that she will continue in the pattern of obfuscation and evasion established by outgoing Secretary Kathleen Sebelius.
Given that the next HHS Secretary will be responsible for much of the implementation of Obamacare—a hugely complex and controversial law that delegates unprecedented authorities to the HHS and other executive departments—I believe it would be unwise to hand over the reins of one of the most important agencies within the executive branch at a time when questions remain unanswered and information is still undisclosed.
On April 11 of this year President Obama nominated Sylvia Burwell to be the new Secretary of the Department of Health and Human Services (HHS), a position that was vacated that same day by former Secretary Kathleen Sebelius.
Article II, Section 3, Clause 2 of the United States Constitution grants the President, as the chief executive, plenary power to nominate members of his cabinet. But that same clause reserves the power of appointment—that is, the power to accept or reject the nominee—exclusively to the Senate.
The Constitution explains this unique division of power as follows: the President “shall nominate, and”—this is important—“by andwith the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other officers of the United States.”
Far from a perfunctory practice, the responsibility to review the fitness of presidential nominees is one of the essential mechanisms in our Constitution’s system of checks and balances.
And for the members of this body who took an oath to “support and defend” the Constitution, this is one of the most solemn duties incumbent upon those occupying the office of United States Senator.
I rise today to urge my fellow Senators to demand that prior to confirmation Ms. Burwell provide concrete, specific, and forthright answers—in writing—to the questions that have been asked of her by members of this body.
I rise today because I refuse to sit idly by and witness the same Washington charade in which stated commitments to transparency are more important than actual demonstrations of candor.
I rise today because if we do not insist that Ms. Burwell’s appointment be contingent upon the transparency of her confirmation process, we will have established a dangerous precedent for the future of this body.
Let’s not forget: much of the authority that resides in HHS ultimately derives from the delegation of authority from Congress. And whenever Congress delegates power to the executive branch, we do so based on the premise that we retain the power of oversight.
Therefore we cannot, in good faith, hand over the reins of one of the most important executive departments at a time when questions remain unanswered and information is still undisclosed. Doing so would undermine the institutional prerogatives of the Senate.
When we only partially carry out our constitutional duties to check and balance the other branches, we alone are to blame for the continued accumulation of power in the executive, where unelected bureaucrats are not always as wise or as impartial as their proponents claim them to be.
The unprecedented accumulation of power in the executive today is a demonstrable fact. But it remains an open question whether we in Congress care enough to do anything about it.
At this point, there’s good reason for pessimism—if the kind of acquiescence demonstrated in this confirmation process is any indication.
But I remain optimistic, because I know that the American people still get it. Outside the Beltway, Americans still instinctively understand the universal truth articulated by James Madison, the Father of the Constitution, over 200 years ago—that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
This is precisely the type of accumulated power possessed by executive departments like HHS.
This power cannot be curtailed or dispersed overnight. But it will continue to expand inexorably toward tyranny unless Members of Congress—exercising our powers as officers of a separate and co-equal branch of government—don’t push back.
We can begin by subjecting this nomination to the close scrutiny it deserves.
The first thing we must recognize is that this is not your average presidential nomination. We’re not talking about the next secretary of the Department of Motor Vehicles. Quite the opposite: Ms. Burwell has been nominated to preside over one of the largest and most important departments in the federal government. No matter who the nominee, this is a job that should be filled with caution and circumspection.
By way of illustration, the HHS Secretary oversees an annual operating budget of about $1 trillion—that’s nearly 25 percent of all federal spending—as well as 11 separate operating divisions, including the very important Centers for Medicare and Medicaid Services (CMS) and the Food and Drug Administration (FDA).
Moreover, the next HHS Secretary is going to assume the helm of an executive leviathan in the midst of implementing the Patient Protection and Affordable Care Act. Obamacare is not only the most complex—and controversial—law in recent memory, but it delegates an unprecedented amount of authority to the HHS Secretary.
Often this delegation comes in the form of sweeping, open-ended grants of power that give the Secretary discretion to shape and reshape the law. Like an unending series of blank checks to the bureaucracy, Obamacare contains 700 instances of the ultimate carte blanche—“The Secretary shall…”—to give the Secretary wide latitude to “develop standards,” “award grants,” “establish committees,” “make adjustments,” etc.
This kind of massive delegation of authority is justified—especially by those who see it as a convenient way to avoid the difficulties of lawmaking—on the theory that Congress will retain and exercise some degree of oversight.
And it is true that both chambers of Congress have the ability to hold hearings in which we subpoena executive officials to testify and answer questions about laws, rules, and regulations under their jurisdiction. But as we have seen over the past few years with the implementation of Obamacare, this power is significantly impeded if those executive officials refuse to answer our questions.
These facts raise the central question that ought to guide the Senate’s consideration of Ms. Burwell’s nomination—namely, how will Ms. Burwell exercise the expansive authority delegated to HHS vis-à-vis the powers and responsibilities of Congress?
Much of the job of the next HHS Secretary will be to facilitate Congressional oversight of the Department, especially in its implementation of Obamacare. Therefore, the Senate’s decision should be contingent upon Ms. Burwell’s record of engaging with Congress.
Sadly, Ms. Burwell’s tenure as the Director of the Office of Management and Budget, as well as her performance in the Senate committee confirmation hearings, gives me concern that she will continue in the pattern of obfuscation and evasion established by outgoing Secretary Kathleen Sebelius.
I therefore respectfully submit that we should proceed cautiously in consideration of this nominee. More cautiously, indeed, than we have up to this point.
For over the past six weeks, since the President nominated Ms. Burwell, many in this body have neglected our end of the constitutional division of power—preferring to act as if Ms. Burwell’s appointment was a fait accompli.
This state of affairs is troubling—and not simply because questions remain unanswered, and information undisclosed, about Obamacare. The problem is more fundamental than any one law.
The Senate’s reluctance to protest against the equivocation and distortion seen in this confirmation process undermines the separation of powers and the system of checks and balances upon which our constitutional order depends.
Respecting and upholding these principles of our Constitution is not a matter of adhering to some arcane formality or following some outdated tradition of the 18th century.
At issue here is whether or not this institution still believes in the reason our Constitution divides power in the first place. Do we still believe, as Madison said, that “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”?
If we do, then we must employ the tools at our disposal to assert our institutional prerogatives. Doing so will demonstrate to the other branches that the power of government is not simply up for grabs.
Here again Madison’s insights are instructive: in the famous Federalist 51, he says, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. […] Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
But if we disagree with Madison about the encroaching nature of power… if we are undisturbed by the great accumulation of power in the executive branch, which predates and will outlive Obama’s presidency… if we prefer to elevate policy preference and party allegiance over love of liberty and the constitutional rights of Congress… then we must not be surprised when—not if—our government takes on the character and the spirit of tyranny.
Let me be clear: the kind of tyranny that threatens us is not of the Saddam Hussein or Bashar al-Assad variety. The tyrannies of Saddam’s Iraq and, today, Assad’s Syria are barbarous, murderous dictatorships that extinguish every semblance of freedom and maintain their power through violence and brutality.
What I’m talking about is the kind of soft despotism that arises when power is consolidated under the auspices of a paternal, benevolent government.
At the end of his study of democracy in 19th-century America, Alexis de Tocqueville explained how this kind of tyranny could emerge within a democratic republic such as ours. Standing as a kind of warning for us today, Tocqueville envisioned “an immense and tutelary power” that “extends its arms over society as a whole,” covering it “with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd.” It does not “break wills,” he said, “but it softens them, bends them, and directs them; it rarely forces one to act” — even Tocqueville didn’t foresee the individual mandate! — “but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born.”
This is certainly a dark image. But we cannot forget that Tocqueville was bullish about America. He believed that American democracy had the right attributes needed to avoid descending to these depths.
Chief among these attributes were our constitutional structures that divided power and, more importantly, the spiritedness, courage, and love of freedom that animated the American people and transformed the mere “parchment barriers” of the Constitution into true limits on governmental power.
It is precisely this spirit of freedom that the Senate must recover if we are going to fulfill our constitutional obligations in this confirmation process. Once we recognize the need to assert and defend our interests as a separate and co-equal branch of the government, we will begin to focus on what’s really at stake in our consideration of this nominee.
The main issue here is not Ms. Burwell’s character or credentials—both of which are first-rate—but whether or not her appointment will improve or further deteriorate the legislature’s oversight over the executive departments to which Congress has delegated vast amounts of authority.
The question is not whether Ms. Burwell deserves to be HHS Secretary, but whether the HHS, under Ms. Burwell’s management, will continue in the pattern of obstinate autonomy and limited cooperation established under her predecessor.
If the answer is no, we cannot possibly vote to confirm this nominee.
 The Federalist, No. 47. (http://www.constitution.org/fed/federa47.htm)
http://www.whitehouse.gov/sites/default/files/omb/budget/fy2013/assets/hist.pdf (page 83)
 Charles C. W. Cooke, “The ‘Living’ Law,” National Review Online, 8/21/13 (http://www.nationalreview.com/article/356322/living-law-charles-c-w-cooke).
Federalist No. 48.