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Cotton Calls Out Senate Democrats' Obstruction at Federalist Society Convention

November 16, 2017

Contact: Caroline Rabbitt Tabler (202) 224-2353

Thank you. Thank you all. Thank you all very much. Thank you for the very warm welcome. Dean, thank you for the very kind introduction-so kind, in fact, that even now I am excited to hear what I have to say today.

It's great to be back with the Federal Society, to see so many friends and familiar faces. Dean, it's good to see you. Leonard Leo, my old friend a great champion for freedom and limited government. As Dean said, we have Judge Jerry Smith and his wife Mary Jane, who as a longtime mentor to me, put up with my hijinks as a young lawyer. I was such a good young lawyer I had to quit and become an Army soldier.

But I really truly am excited to be here with you today. It's an exciting time for the Federalist Society to be celebrating your 35th anniversary with a new Republican administration in Washington. And you know, I-you can clap for that. I was a member of the Federalist Society when I was a student and then when I was in private practice so I've long supported what you do to spread the gospel of freedom and constitutional government to the benighted backwater lands of our nation's law schools.

Now, my affection for the Federalist Society has also become very personal: I met my wife at a Federalist Society lunch. And my wife, Anna, is here with us today. Yes, her retelling of that encounter would be long and twisted, and have lots of turns, and mutual friends. It would take an hour or so. My recounting of that story is very simple and a hundred percent accurate: I gave a speech, and a pretty girl gave me her phone number afterwards. Must have been a hell of a speech, right honey? She hates it when I do that, though.

So, believe me, there are few people who hold the Federalist Society in as much esteem as I do. It is a great institution, and it's a true honor to be celebrating your 35th anniversary with you.

Along those lines, I'd also like to welcome to everyone to Washington who flew in for this conference. I hope this conference inspires you to go back and be successful in your legal careers-unlike me, if you don't, you might end up as a politician. You know, there's an old joke about the elected officials-that when you disagree with an elected official, he's a politician. When you agree with them, he's a statesman.

But whatever you call them, an elected official's perspective on the administrative state is different than most. Perhaps the most frustrating thing is so many people agree that it's a problem, yet so few people do anything about it. Lots of good men and women run for office, and come to Washington, and they run headlong into a recalcitrant and stubborn, arrogant federal bureaucracy. And this has sometimes been referred to as the "we-be" problem. I'm talking about the permanent bureaucracy, the permanent staff, the self-described "residents," who look at the 537 people who are in Washington because they won an election and consider them to be tourists. And they say, "We be here when you got elected, and we be here when you're gone."

Well, it's important to remember, though, that as much as we might express some frustration about those bureaucracies, about those regulatory agencies and the people that fill them. Those bureaucrats didn't create themselves and, the last time I checked, they're not in the Constitution, not a single mention of them. No, every single one was created by a law-which means, by a Congress who was willing to abdicate a degree of its constitutional powers.

It all started innocently enough. First, Congress began to defer to federal agencies on factual questions, reasonable steps. Then, Congress began to empower those agencies to fill in the details of a regulatory scheme. But then, in the 20th century, Congress began delegating vast power to federal agencies to achieve only the most vaguely defined goals-think of the Clean Water Act or the Clean Air Act.

Now the appeal of this approach to a bunch of politicians should be obvious. It's far, far easier to create an agency or delegate authority to an agency and take credit for doing something than it is to pass a law, an actual law with real consequences, for which you might be blamed. Then, when the agency makes what is in effect a law a few years later, you get to condemn the agency for overreaching. You get two bites at the political apple. What could be better for a politician?

I can tell you, that once Congress stumbles onto a path of least resistance like that, it doesn't stop, it plows straight ahead. So, at this point, there are so many federal agencies, nobody even knows how many exist for sure. It's true. There are competing estimates. Maybe 60, 89, 115, 257, 316? Nobody really knows for sure. And the sheer number of regulations has skyrocketed over the last century. The first Federal Register was published in 1936, and it clocked in at a whopping 2,620 pages. It passed 10,000 pages by 1942; 20,000 pages by 1967. Last year, it passed 95,000 pages-which represented a 15,000-page increase over a single year. Thanks, Obama.

By contrast, some of the most fundamental laws in our nation's history are just a couple pages long. The Northwest Ordinance? 2,900 words. The Homestead Act? 1,400 words. Those were big and important pieces of legislation, and they shaped our country in fundamental ways. They continue to shape our country to this day. So, it's not necessary that we pass thousand-page bills that nobody reads and empowers hundreds of bureaucrats that nobody elected. That's a choice. It's a choice that our elected officials have made. And if anything, what's necessary is that those elected officials do their job once again.

And this isn't just an academic debate that's confined to some pages of a law review that nobody read-no offense, anyone.

The American people are genuinely fed up with the administrative state, I can tell you that beyond a shadow of a doubt. And the stories of waste and mismanagement would be funny if it wasn't your money and your freedom. Who could forget the IRS's $4 million conference-$4 million in Anaheim-complete with videos of IRS employees performing a parody of Star Trek and the "Cupid Shuffle"? Then there was TSA that spent $47,000 to create a single app. What about the ATF spending $600,000 to buy six drones that it later found out didn't work? Or the USDA telling a family that they needed to get a license to display their llamas? And CMS shelling out $1.3 billion, 1.3 billion, on 300,000 claims that had been previously dubbed "medically unnecessary"?

That's just a small sampling, and, I admit, they actually are pretty funny. But they're very serious as well. Because this is the arrogance of the administrative state. They're so removed from public opinion, so unaccountable to the people they're supposed to serve, they look at long, interminable wait lines at their offices and probably think, "Ah, that means job security for me."

They think they don't have to treat the people, who are their bosses, with the respect they deserve. They send edicts down from on high to the masses as if they're handing down the Ten Commandments- except in this case, it may be called, the Ten Thousand Commandments.

Now, I don't mean to condemn people who work in our federal government. I'm not saying they are bad people. I'm saying that they're people. The Federalist Papers, I think, reminded us that men are not angels, and that's why when men are invested with power, that power is supposed to be representative, and limited, and separated-none of which it is in our administrative state today.

So, what should we do about that?

Well, fortunately, we now have a president, after eight years, who feels the same way about the administrative state as we do and long has. And he's willing to work with Congress to reverse this trend.

Now, I know that some in the media and the Democrats-but I repeat myself-claim that, they claim that the President is some kind of nascent fascist. But let's just take stock of three notable cases that they also complain about. First, he stopped paying to insurance companies subsidies that had been held unconstitutional by a federal judge, and he asked Congress to authorize those payments. Second, he rescinded the unlawful Deferred Action for Childhood Arrival program, and he asked Congress to reach a new compromise. Third, he decertified the Iran nuclear deal, which had circumvented the Constitution's treaty clause. In each case-and there are many, many others-he reined in an out-of-control executive branch and told Congress to do its jobs. I don't know about you, but that doesn't sound exactly like the pattern of a budding authoritarian to me.

And ultimately, it is Congress's job to fix the administrative state, since Congress created it in the first place. This year, we've made some good progress on that front. Using the Congressional Review Act, which the media and the Democrats, but I repeat myself again, sometimes described as obscure or little-used. You know that we must be doing something good because they only call things obscure and little-used when they don't like the wait it's being used. We've repealed 15 of the Obama administration's midnight regulations. And that doesn't simply repeal those regulations, it salts the earth over them. Those agencies can never return to that topic again until Congress passes a new law.

And building on that, we've asked the Government Accountability Office to review, what you might call, camouflage regulations-"guidance," or "Dear Colleague letters," or advisories that are masquerading as something other than what they are, binding regulations. And if the GAO finds that those things are effectively a regulation, then Congress will be able to vote on them as well and overturn them too.

And finally, we're at least beginning to have a serious debate in Congress about the organic statutes that created many of these agencies, invested them with the sweeping authority they already have.

Now, I will admit, though, that there is one area in which the Senate has been painfully slow in making progress-painfully slow. And that's the confirmation of executive and judicial nominees-and that's all because the Senate Democrats simply refuse to accept the results of the 2016 election.

They don't have the votes to stop the president's nominees. That's their own fault-because four years ago, to pack the D.C. Circuit, through a simple majority vote, they overturned the rules of the Senate and required, not sixty votes, but a simple majority vote for the confirmation of all executive branch nominees, all District Court nominees, all circuit nominees. We used that same precedent to hoist them on their own petard this year when we confirmed Neil Gorsuch to the Supreme Court.

So that means it now simply takes a simple majority vote to confirm any nominee to any office in our government-which to be frank was the custom, or the standard, all along until just 15 years ago when a junior senator from New York, named Chuck Schumer, decided that it would be in the Democrats' advantage to start filibustering George Bush's nominees. Think about it. Clarence Thomas was confirmed by a vote of 52 to 48. Any senator could have demanded a 60-vote threshold, but none of them did-not Ted Kennedy, not John Kerry, not Joe Biden. Not a single Democratic senator took that step until Chuck Schumer came along.

So, they don't have those votes anymore but what can they do? They can use, or I should say, abuse Senate procedures to try to delay confirmation votes as long as possible. That enables bureaucrats to run their own agencies without any political accountability, and it slows the president from being able to nominate, and the Senate to confirm new judges to our courts who will hold those agencies to account.

These abuses are unprecedented, and they must come to an end. I can assure you, I can assure you, that the patience of Senate Republicans is fast wearing out. Things are going to come to a head in the next few months. And I have three simple proposals to bring them to a head, so listen up, all you aspiring U.S. attorneys and federal judges-this is going to make a difference.

First, blue slips. Some of you know that, for the past century, the Senate Judiciary Committee has extended a simple courtesy to its members: Whenever the president nominates someone from your state, the Judiciary committee chairman asks for your input by sending you a blue slip. It's literally a blue slip of paper that you then return with your thoughts.

Recently, though, the Senate Democrats have simply refused to return their blue slips. Senator Al Franken, for instance, has been holding up David Stras, who was nominated to the Eighth Circuit Court of Appeals back in May, and we've confirmed many other judges who were nominated on that day or subsequently. The Democrats are claiming that the blue slip should operate as a unilateral veto. That is a gross abuse of the blue-slip custom-and remember, it's nothing more than that, a custom, a courtesy. It is not a rule. It is not a law, and it was meant to facilitate consultation between the executive branch and the Senate, not obstruction.

There's no way, there is simply no way we allow a single U.S. senator from a single state to decide whether a nominee can even get a vote, even get a vote for a court that covers three, or four, or five, or six, or in this case, seven states-including my state of Arkansas. So, I agree wholeheartedly with what Senator Chuck Grassley, the chairman of the Judiciary Committee said earlier this week that we cannot allow a single senator to veto a circuit nominee. So, either the Democrats return their blue slips in a timely fashion, or we simply proceed without them. After all, as I said, the blue slip is a courtesy, it's not an ironclad rule. And if the Democrats want to abuse that courtesy, well, maybe we ought not be so courteous in return.

Second, another way the Senate Democrats are trying to throw sand in the gears of confirmation, in this case of judges, is insisting that the Judiciary Committee wait until the American Bar Association completes its evaluations of nominees before holding a hearing. Look, we should just stop pretending, just stop pretending that the ABA is a professional organization in this context. Whatever else the ABA may do in other contexts, in this context they are a left-wing ideological enforcer. They've already deemed four of the president's nominees to be "unqualified" after eight years of never calling a single Obama nominee unqualified. But then again, why should that surprise us? They were all Democrats, and these are Republicans.

The ABA is a democratically unaccountable, special-interest organization. [Its] stamp of approval ought to carry no more weight than any other such organization. After all, shouldn't we care about, say, the National Federation of Independent Business's opinions on these nominees. They're the ones that bear the costs of left-wing judicial activism, after all. So the Senate Judiciary Committee is wholly in the right not to allow the ABA this kind of privileged status, and we shouldn't give the Democrats a single concession in return.

Finally, and in my opinion, most outrageous, Senate Democrats are abusing the confirmation process by forcing multiple votes, even for non-controversial nominations, and running out the entire clock for every vote. Here's how it works. The majority files what's called a cloture petition to end debate on a nomination. Then there has to be an intervening day before the vote on that cloture motion. And then, after that vote, there's up to 30 hours of debate before the actual confirmation vote. That's 30 legislative hours, not 30 actual hours, and I assure you that no debate ever occurs.

When the minority insists on that entire process-every vote, all 30 hours to run it-it can take a whole week just to confirm two or three nominees, an entire week of the Senate's business. There was a week in July, for instance, where all we did for an entire week was confirm an administrator in the Office of Management and Budget, a district judge in Idaho, and the ambassador to Japan.

I would never dispute the importance of the district court in Idaho. We have it-maybe we have a judge from Idaho. But I would point out, I would point out, that after those multiple votes and after 34 full hours of debate that judge was confirmed by a vote of 100 to nothing. I would never dispute how critical an ally Japan is, one of the great powers of the world, and Bill Haggerty is a fine ambassador to Japan. But after all those votes and after all that time, he was confirmed 86-12. This is nothing but the purest, most rank obstructionism, and it's unprecedented.

Let me just give you the contrast. This year, this year the Senate Democrats have forced us to take 47 cloture votes, 47. Well, what's that compared to? Over the last four administrations combined, the last four administrations combined, by the same time there were only six cloture votes.

That's a simple tactic they've used, and unfortunately, it's been an effective one. Through the end of last month, the Senate had confirmed 180 Trump nominees. That may sound like a lot until you realize that it was 219 fewer than it confirmed for President George W. Bush and 187 fewer than it had confirmed for President Obama through the same point in their presidencies.

So, it's time to put a stop to this, now. I have a simple proposal: In January 2013, the last time the Senate was seated with the Republicans in the minority, Senate Republicans agreed to a unanimous consent order that expedited consideration for nominees throughout the remainder of the 113th Congress. That set a standard by consent of 30 hours of debate for Cabinet, and Supreme Court, and circuit-court nominees; eight hours for all sub-cabinet positions; and two hours for district-court nominations. I'd say that's pretty reasonable.

So, I would give the Democrats this choice. Either they accept those exact same terms or the Republicans, by a simple majority vote, will change the rules of the Senate, we will eliminate cloture votes for all nominations and we'll set debate for every nomination for all offices to two hours. So, so they have the choice. Accept the same reasonable terms that the Republicans accepted in January of 2013 when we were last in the minority or face the Senate equivalent of martial law. Because if we are serious about reining in the administrative state, we have to be serious about stopping this unprecedented obstruction and confirming good men and women to our executive branch and the federal courts.

The Supreme Court has finally started to pare back some of the bureaucratic overgrowth that's accumulated over the last century. And the courts are growing more skeptical of the administrative state's claims of unquestioned authority and alleged claims of difference. And, if we want to continue that trend, then we cannot allow the Senate Democrats to attempt to nullify the results of the last election. Elections must have consequences.

But whatever happens, I know one consequence the Democrats can't avoid is the continued and growing influence of the Federalist Society on our nation's laws and our court system. So, I want to thank you all again for what you do for our country, thank you all for allowing me to address you this morning to kick off your conference, and wish you the very best for an exciting and informative conference. Thank you.