[Congressional Record Volume 149, Number 161 (Friday, November 7, 2003)]
[Senate]
[Pages S14228-S14244]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INTERNET TAX NON-DISCRIMINATION ACT
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of S. 150, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 150) to make permanent the moratorium on taxes
on Internet access and multiple and discriminatory taxes on
electronic commerce imposed by the Internet Tax Freedom Act.
Pending:
McCain Amendment No. 2136, in the nature of a substitute.
The PRESIDENT pro tempore. The Senator from Nevada.
Mr. REID. Mr. President, I hope we can get things done here. There is
so much to be done. I said last night, and I spoke from the heart,
people in Nevada at our military bases, Fallon and Ellis, need this
Military Construction bill passed. I don't know why we are not going to
do it today. If it is brought up next Monday or Tuesday,
[[Page S14229]]
nothing is going to happen on it, so let's get that done.
The Syria Accountability bill--I understand what is going on here.
There is an effort made so there will be a vote Monday night on Syria
Accountability because there is a time limit on it. If that is the
case, fine. Remember, this is an important piece of legislation that
requires our immediate attention. I don't think we should be doing
things that take away for 1 minute our going into Syria's
accountability, supporting the Hezbollah, and all the other activities
they do that simply are not appropriate.
We are in a situation where we have bills that need to be passed and
conference reports that need to be approved. It is not going to happen
for reasons I don't understand.
Mr. DORGAN. Will the Senator yield for a question?
Mr. REID. I will be happy to yield.
Mr. DORGAN. Mr. President, my colleague from Arizona, I know, did not
intend to think that if I were here last night, I would have advanced
the cause of his legislation. I have no amendment to offer to the
legislation. I had an opportunity yesterday to speak on several
amendments. I think he probably inartfully described his angst about
last evening. I didn't cause this legislation to be delayed. I am sure
he knows that.
Aside from that, I wonder if the Senator from Nevada will tell me
about the urgency of legislation on the floor. The majority leader
expresses an interest in moving this Senate along on legislation we
need to get done. I am pretty unimpressed with the plea to do that when
we understand that next week we are going to find nearly 2 days taken
in a carnival situation with judgeships, when we have approved 98
percent of the judges who have been sent to us by the White House.
Now, in the middle of next week, as we try to finish this session, we
are told we are going to have 30 hours, or take the better part of 2
days, to sit here around the clock to talk about the several judges we
have not confirmed. I ask the Senator from Nevada if that seems to him
like we have an urgent situation when somebody is going to take 30
hours out of the middle of next week and move off to have a 30-hour
discussion on judgeships.
I am pretty unimpressed with the plea for cooperation and expedited
procedures on these issues as long as somebody is going to take nearly
2 days out of the middle of next week to do something that has nothing
to do with moving appropriations bills.
As I ask the question, I wish to make an additional comment. I am an
appropriator as well. I am not very impressed with what has happened.
We were supposed to have done the appropriations bills and finished by
October 1. We have been off and on appropriations bills. Look, if this
is a priority, let's get on appropriations bills and stay on
appropriations bills. That is what we ought to do. Isn't that the case,
I ask my friend from Nevada?
Mr. REID. I will be happy to respond to my friend's question. As I
indicated earlier, to my knowledge, no one works harder in the Senate
than the Senator from North Dakota. He is an appropriator and
authorizer, understanding from his long years in Congress, both in the
House and the Senate, that the last few weeks and days of a legislative
session can become very intense. That is why I am at a total, absolute
loss to understand how we could do this. We have been told; we heard it
on the news--I went home last night and my wife said it was on the news
at 6 o'clock Wednesday night until 12 o'clock Thursday night, we are
going to be on the Senate floor listening to a discussion of what bad
legislators we are because we haven't approved 100 percent of the
judges the President has requested--168 to 4--and we have been told
they are going to bring up another failed nominee, Priscilla Owen, next
week.
I understand they are also going to bring up a woman by the name of
Kuhl from California and a woman by the name of Brown from California.
I don't know if this is an effort to try to somehow embarrass the two
Democratic--
Mr. McCAIN. Parliamentary inquiry, Mr. President.
Mr. REID.--Senators from California or what the reason might be.
The PRESIDENT pro tempore. Does the Senator yield for a parliamentary
inquiry?
Mr. REID. For a parliamentary inquiry? I will be happy to do that,
without losing my right to the floor. Yes.
The PRESIDENT pro tempore. The Senator from Arizona.
Mr. McCAIN. Mr. President, I have a parliamentary inquiry: Wouldn't
rule XVIIII 1(b) begin to apply concerning proceedings while
legislation is before the Senate?
The PRESIDENT pro tempore. That is correct. Under the procedures of
the Senate, there would be a warning issued to Senators speaking on
matters other than the business before the Senate in the first 3 hours.
Mr. REID. Mr. President, I appreciate that very much. I appreciate my
friend from Arizona bringing that to my attention. What I am going to
talk about for a while is the Internet tax problem. Internet tax is a
difficult situation, of course. It is something with which we need to
deal. We understand there is some confusion as to what we are really
dealing with. Some believe it has something to do with sales tax. This
legislation does not. It deals with access.
It is a very important issue, but it seems to me this matter could be
resolved in a matter of minutes. I am told the Presiding Officer's
amendment, in effect, would extend the present law for a couple years.
It is my understanding the distinguished Senator from Alaska has
suggested this be extended for 2 years and, if I am not mistaken, there
are others who believe it should be extended for 2 years.
I believe that should happen. I hope we will extend this for a couple
years and then during that period of time make a determination as to
whether the legislation that is now before the Senate should be
implemented. I understand that.
Also, one of the real problems we have is this schedule, which makes
it very difficult to deal with this legislation. My friend from Arizona
suggested we deal with relevant amendments. This is not going to happen
in this present atmosphere. There will certainly be efforts made to
offer not only relevant amendments, but, I would assume, maybe some
nongermane amendments. I don't know that to be the case, but I assume
so because we have so few opportunities to amend different pieces of
legislation as they come through.
On appropriations bills, we have been cooperating the best we can. As
I indicated last night, we have done everything we can to make sure we
did not have amendments that were offered to appropriations bills that
would slow down the process. We have worked very hard in doing that.
I am not going to talk for a long time this morning.
I have no intention of interfering this morning with people's
schedules. I know there are a lot of schedules that we have to move
along. I want to do that. People have airplane schedules to meet on
Friday. We were told yesterday that there would not be anything after
12 today. At least people on our side made arrangements that that
would, in fact, be the case. If there is some change, we need to know
about that.
I am happy that we got the CR passed. I look forward at a later time
today to cooperate and agree to bringing forth Commerce-State-Justice.
We want to do that at the appropriate time. Until there is some
decision made on how long we are going to be involved on the Internet
tax situation, we are not going to be able to give that consent.
Finally, responding to my friend from North Dakota in a very brief
way, what is taking place here is something that I have never seen in
the many years--more than two decades--I have served in the Congress,
that we would have in the late days of a legislative session this
carnival, as the Senator from North Dakota referred to it--this circus,
as I referred to it--and that is what the American people will think of
it.
The PRESIDENT pro tempore. The Senator from Arizona.
Mr. McCAIN. Mr. President, I believe the Senators from Tennessee and
Delaware have an amendment filed. We are ready to consider that
amendment or other amendments, if Senators have amendments that they
would bring them to the floor so we can move forward with legislation.
[[Page S14230]]
I mention to my friend from North Dakota, who is an articulate and
passionate defender of his point of view on the Internet tax issue, the
reason why I mentioned his absence last night was I meant he would have
contributed a good deal to the debate and discussion given his many
years of involvement in this issue, which I have always enjoyed, not
only on that issue but on numerous others.
So I would ask if our colleagues would file their amendments, bring
them forward, as well as amendments that may be applicable.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDENT pro tempore. The Senator from South Carolina is
recognized.
Mr. HOLLINGS. Mr. President, let me weigh in here by acknowledging
the mistake we made in the Commerce Committee. In light of that
statement, let me first commend our colleague from Oregon, Senator
Wyden. His intent is good. We followed it. We supported it in the
Commerce Committee. We made certain that the Internet was allowed to
expand and progress without any tax burden. In that light, we passed
the temporary moratorium. The intent of the Commerce Committee, when we
reported this measure that is now before us, was to make permanent that
moratorium with respect to individual taxes.
What occurred in reporting was that we realized there was a certain
language difficulty there. The fact is that the CBO today cannot
schedule or account for that language on the budgetary impact. We knew
that shortly after the reporting. It was all reported out on a verbal
vote. We said this is going to the Finance Committee. They have tax
experts and they will clean up our act for us and get the intent of the
full committee and the Congress to continue and make permanent this
moratorium.
The fact is, under the present language, the moratorium extends not
just to the individual consumer, but it goes the entire way down the
pipeline as a tax exemption, thereby invading the power of the States
to tax or not tax; thereby becoming, as the Senator from Tennessee, Mr.
Alexander, says, an unfunded mandate. So now we have before us not the
intent of the Congress at all.
I recently was in China, and I can tell you we do not have to worry
about trying to control the Internet. It is not with taxes that the
Chinese are trying to control the Internet and its usage, expansion,
and its progress. On the contrary, they are trying by law to control
it, and they cannot. That cat is out of the bag and it is going to
grow.
The fundamental problem is just what the Senator from Tennessee has
spotted. We have now invaded States and the locals and their taxing
power, and that is not right. Right is right and wrong is wrong, and we
made a mistake. Over the horizon, some of these corporate America
giants are piggybacked. They said, oh, now look at what we have. If we
can get in on this kind of extension, we will do away with some $4
billion to $8 billion in taxes. Of course, they are not passing it on
to the consumer. It has nothing whatsoever to do with the expansion or
the progress and success of the Internet. That is what we have
confronting us.
In that light, the Senator from Delaware, Mr. Carper, and the Senator
from Tennessee, Mr. Alexander, have gotten together an amendment that
the distinguished Chair has joined in, and this Senator from South
Carolina has joined in, so that we can pass this bill and extend it.
That is what we all want to do. We like the present law and that is
what we in the Commerce Committee thought we were doing, we were
protecting consumers by extending the present law to make it permanent.
We could then send that over to the House side, and if we can send that
to the House, we can dispose of this knotty problem and move on to more
important legislation.
I thank the distinguished Senator from North Dakota for handling this
bill. Once again, I wish to acknowledge the leadership of Senator Wyden
from Oregon. He has led us on this Internet effort for a long period of
time. He has made absolutely certain that the Internet continues to
progress and succeed. We cannot come in now and tell the States how to
tax and what to tax and not to tax.
We are not trying to give a tax cut to corporate America. We want to
make sure there is not a tax increase to consumers on the Internet.
That is what the present law did until it expired a few days ago, and
that is what ought to be extended and made permanent.
I thank the Senator from North Dakota for handling this measure and
again commend my colleague on the committee, Senator Wyden, for his
leadership.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I am going to be brief. I have appreciated
the distinguished Senator from South Carolina working with me on this
over the years.
The distinguished Senator from South Carolina is absolutely right.
The committee bill did the job right. The committee bill kept in place
the technological neutrality that we have established over the years--
the Senator from South Carolina, Senator Stevens, who has now left the
floor, Chairman McCain, and others. The reason we did that years ago is
that we did not have technological neutrality. The Internet was subject
to taxes that were not subject to other areas, such as the snail mail
delivery of papers.
What has happened, however, is under the substitute that is being
offered by the distinguished Senator from Tennessee, Mr. Alexander, we
get away from the competitive neutrality that the distinguished Senator
from South Carolina has been advocating.
I want to be very specific about how that is being done, because I
think a lot of Members believe that if they vote for the proposal by
the Senator from Tennessee that it is somehow a safe vote, that all
they are doing is continuing the status quo and it is really kind of an
innocuous approach. It is not a safe vote. It is a vote to increase
taxes.
I want to be very specific in explaining how that is the case. What
has happened as a result of changes in technology over the last few
years is you now have, in a number of jurisdictions, DSL--Internet
access through DSL being taxed but Internet access through cable modems
not being taxed. That is what has happened as a result of the changes
in technology and the various changes in government policy. So you
already have been moving away from the competitive neutrality we have
sought with respect to this issue.
Let me repeat that. Today, Internet access through DSL is being taxed
in a number of jurisdictions and Internet access through cable modem
can't be taxed anywhere.
Unfortunately, what would happen under the proposal of the Senator
from Tennessee is that you would make it easier to continue that
competitive disadvantage and, particularly under the proposal of the
Senator from Tennessee, it would be easier to tax wireless Blackberry
services.
I am of the view that with 391 separate taxes on telecommunications
administered in 10,000 different jurisdictions, people across America
who have these Blackberrys, which have wireless Internet access, would
be subject to scores of new taxes.
So I say to colleagues who are looking at this issue and thinking
that somehow the idea of a 2-year proposal is kind of an innocuous safe
haven and really not a tax increase--I ask them to think about what it
is going to mean for Blackberry users across the country.
These are wireless devices. In a number of jurisdictions where
Internet access is obtained through DSL, those services are already
being taxed. That would be expanded under the 2-year alternative.
What I would like us to do is what I believe we sought to do 5 years
ago when Senator Hollings, Senator McCain, and others got together, and
that is to ensure strict neutrality with respect to technology. The
Internet wouldn't get a preference; the Internet wouldn't be hurt. The
problem now that wireless users are facing with respect to DSL will be
compounded if this 2-year alternative goes forward. I hope my
colleagues will reject it for the reasons I outlined this morning.
The PRESIDENT pro tempore. The Senator from Arizona.
Mr. McCAIN. Mr. President, shortly the sponsors will be proposing an
[[Page S14231]]
amendment. In the meantime, I ask to speak as in morning business for 4
minutes.
The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so
ordered.
(The remarks of Mr. McCain are printed in today's Record under
``Morning Business.'')
The PRESIDING OFFICER. The Senator Nevada.
Mr. REID. Let me say about this bill, no matter the merit of it, I
know people feel very strongly about it. The Senator from Tennessee,
who was here in the Chamber a few minutes ago, the Senator from Ohio,
Mr. Voinovich, the Senator from Virginia, Mr. Allen, the distinguished
Senator from Oregon, Mr. Wyden--they have strong feelings about this.
Their views do not coincide. I know how strong their feelings are.
But this legislation, with all due respect to the distinguished
chairman of the Commerce Committee, isn't going to go anywhere today or
Monday or Tuesday. I think there should be some effort made to resolve
the issue. I am a member of the Commerce Committee. I don't understand
all the issues, but I understand the issues on this floor and nothing
is going to happen.
I would say to the majority that if they are looking for votes today,
they would be better off looking for votes to pass the most important
piece of legislation that I see that we could vote on quickly, and that
would be the vote on the conference report dealing with Military
Construction. We could vote on that. We could have a vote with debate
equally divided with 5 minutes each. We could pass it. We could go to
the Syria Accountability Act. We agreed last night to reduce our time.
There are 90 minutes. We have agreed to take one hour half each and
divide it up, as we indicated last night, several different ways. It
seems to me we could do that, and we could be out of here by 12 o'clock
after 2 very important votes.
Let me tell you what the problem is. There is an effort made so we
have something to do on Monday and Tuesday. I say to everyone that as a
result of the carnival which is going to be started at 6 o'clock on
Wednesday, nothing is going to happen Monday and Tuesday of any
significance. There may be a vote on the Syria Accountability Act
because it would be an easy vote to get up. They may bring up Military
Construction, and they may say, Isn't it too bad that the minority, the
Democrats, aren't allowing us to pass Military Construction. But
remember: I have offered numerous times over several days to take this
up by unanimous consent. So all the pleas of sorrow and concern next
week about our not taking care of our military officers around the
country certainly will speak volumes because it simply is without any
foundation because we can do that right here.
We are on the Internet tax bill. One of the things we need to talk
about on this Internet tax bill is the importance of judges. Judges
enforce these laws. We have been involved in passing out of this Senate
168 judges. We have turned down four. If the Internet tax measure is
worth talking about, why don't we just move a little bit to the 30
hours which is going to begin next Wednesday and start talking about
judges today? That is fine. I don't see any reason why we should not do
that.
We can talk about the record that was set and that we have the lowest
vacancy rate in the judiciary in some 15 years. Is it necessary because
we have the lowest rate in some 15 years to spend 30 hours--2 days of
the Senate's time--talking about judges in the circus atmosphere that
will be there? It is all planned. It is going to be quite a show. It
has all been laid out in the press. They are going to have all 51
Republicans here, and that way it will be very easy to discern whether
or not there is a quorum present.
I am gathering my thoughts.
We will have a lot of time to spend on Internet tax.
Mr. McCAIN. Mr. President, the Senate is not in order.
The PRESIDING OFFICER. The Senate will come to order.
Mr. REID. Thank you very much. I appreciate very much bringing the
Senate to order.
Mr. McCAIN. I am sorry to say the Senate is still not in order.
The PRESIDING OFFICER. The Senate will be in order.
Mr. REID. Mr. President, the point is if there needs to be a
discussion on judges, we don't have to wait until Wednesday at 6
o'clock. We can start talking right now on this legislation because
judges have to enforce the law. It is a law we are talking about. They
have to do it on a trial level and they have to do it on an appellate
level.
We have given this President 98 percent of the judges he wants--98
percent of the judges he wants. People talk about the Constitution. We
can talk about the Constitution also. The majority makes these
statements that a filibuster is a brand new thing; it has never
happened with judges; isn't it a terrible thing this is happening in
the Senate. Of course, it is without foundation. There is no truth to
it. Filibusters have taken place on previous occasions, and it will
take place again long after we are gone.
To think we have to wait until Wednesday to talk about judges--we
don't have to wait until Wednesday. We can talk now. This is a
complicated piece of legislation. Don't you think we are going to need
judges to interpret the law? Of course we are. The record we have is
pretty good. Do you think the advise-and-consent clause of the
Constitution meant every judge the President suggested to us we just
approve them? Would the President be happy if we had 100 percent of his
judges? How about 99 percent or 99.5 percent? Ninety-eight percent
isn't good enough. It is not good enough, so now we are going to spend
30 hours talking about why it shouldn't be 98 percent, it should be 100
percent. I don't know what the proper ratio is the President wants.
I am just giving everyone a little idea that we don't have to wait
until Wednesday at 6 o'clock to talk about judges. We will talk about
them now. I am proud of what we have done here in the Senate dealing
with judges.
I am glad Miguel Estrada was not confirmed. He wouldn't answer the
questions. He wouldn't allow us to look at his memoranda when he was at
the Solicitor's Office.
I am glad we did not approve Priscilla Owen who the President's own
attorney, Mr. Gonzales, said was not a good judge when he served with
her in the Texas Supreme Court.
I am glad that twice we did not approve William Pryor from Alabama
who is an embarrassment to the State of Nevada and this country and
shouldn't be a judge.
We have approved 168 judges. That is how many we have approved.
Mr. DORGAN. Mr. President, will the Senator from Nevada yield for a
question?
Mr. REID. I would be happy to yield for a question.
Mr. DORGAN. I wonder if perhaps next week when the other side wishes
to take 30 hours in the middle of the week to talk about the handful of
judges--I believe the four who have not been confirmed by the Senate--I
wonder if perhaps we should not take the time next week to talk
individually about the 168 we have confirmed. Perhaps we ought to go
through each one and talk about all 168.
If time is not the issue--if the majority leader says time is urgent
to talk about all of these other bills but in the middle of next week
they will use 30 hours to come to the floor and talk about the 4 who
have not been confirmed--perhaps we ought to take 60 hours to talk
about the 168 we have confirmed.
Let us move on the things that matter now and scuttle the 30 hours
next week and this 30-hour discussion of the handful of judges who have
not been approved. That doesn't make any sense to me.
Mr. McCAIN. Will my friend from Nevada yield for another
parliamentary inquiry?
Mr. REID. In just a minute.
The Internet bill which we are talking about here on the Senate floor
is an important piece of legislation. I was present last night and
listened to the statements of the Senator from Oregon. The Senator from
Oregon understands legislation. He understands the importance of this
Internet tax bill. He understands the definition of access. He
understands what unfunded mandates mean, which was talked about by the
Senator from Tennessee at such great length. I think it is important we
understand this Internet tax bill. It deals with some very important
issues. It is a bill that seeks to protect the
[[Page S14232]]
Internet access from taxation. As the lines between the Internet and
the media continue to blur, there is some concern the law could lead to
States losing some of their existing tax base over time. For example,
some long distance telephone traffic is now carried on the Internet.
Movies, videos, and music programming can be downloaded onto the
Internet as well as being viewed over cable and broadcast media.
I say to everyone within the sound of my voice someone needs to
interpret this law. If we pass something here, we will need someone to
interpret this law.
I know this is Friday morning and there is a lot to do. But I simply
wanted everyone to know this sham, this scam, this circus, this
carnival that is going to begin on Wednesday at 6 o'clock is just as I
have described it. What we are going to do, as the Senator from North
Dakota indicated, if you want to talk about 4 judges, or maybe add 2
more or 6, is we will talk about 168. We are happy to do that.
I know I could talk a lot longer. I understand the Pastore rule. I
have a lot of stuff which I could talk about--the Internet tax, and
weave in the judges, but as kind of a relief to everybody, I am going
to sit down for the time being.
Mr. McCAIN. Mr. President, I thank the Senator from Nevada, who
understands parliamentary procedures as well as anyone.
There are some discussions going on about some agreement that might
be reached on this issue with some of my colleagues. I hope we can make
progress on that.
I yield the floor.
Mr. DORGAN. Mr. President, I have not spoken on this issue this
morning. This is a very important issue. I have been a supporter of the
moratorium. I have supported the initial moratorium and the extension
of the moratorium and will support again a moratorium. As far as I am
concerned, it could be permanent if the proposition is, let us not tax
the connection to the Internet. That was the presumption from the
start. Let us not retard the growth of this industry. Let us not allow
States to create some special tax that could be discriminatory or
punitive with respect to the Internet itself.
Having said that, it is very important we create a definition that is
appropriate. We have a current law. That current law could just be
extended. Some of my colleagues say, if you just extend that and do not
do anything about the circumstance with DSL, then you have an
unfairness. That is something I understand and I am certainly willing
to deal with that. But if we do not deal with the issue of how you
interpret or how you describe what it is you are exempting, you can
have serious financial problems. We are talking about billions of
dollars' worth of problems for State and local governments.
When we passed this moratorium out of the Commerce Committee, my
colleague, Senator Hollings, was absolutely correct. We passed it out,
I believe, 31 to 0. But we did it by saying we understand the
definition of what is going to be exempted is not yet right. There is
great controversy about it. So we will move this bill to the Senate but
will work on solving the problem of the definition and what it means
and its consequences before we get to the Senate. We tried very hard to
do that but regrettably that has not been done. I want people to
understand the framework in which this comes to the floor. Yes, the
Commerce Committee passed it 31 to 0, but with the caveat that the
definition of what is exempt is not yet solved or at least not yet
agreed. So between then and now we have tried hard to see if we could
fix that. At this point, it is not yet fixed.
Mr. BURNS. If the Senator will yield on that point, 9 times out of
10, whenever we get in trouble in this body it is in dealing with
definitions up front. That is our problem now.
I know they are trying to work out some way over there to define
certain parts of this, but there has to be something between the
amendment pending and where we want to go. We are all in agreement that
in this industry, when the moratorium was first put on--to allow this
industry, this industry that was a baby industry, to build out--what we
did was right. The second time we extended it was the right thing to
do. We have seen an explosion in an industry.
There are, however, some sections that are discriminatory. There were
some loopholes found by the States. So we have an inequitable situation
due to definition.
I hope the parties can work this out to the satisfaction of the
intent of the Commerce Committee when we passed it the first time, when
we extended it the second time, and now when we want to extend it
another time.
Maybe status quo is not exactly right. But nonetheless, it is
something we have to work on. The Senator from North Dakota and the
Senator from South Carolina have a point that we have not worked on the
definition and how it will be determined or defined in the taxing
entities of the States, or even, for that matter, counties and cities.
I appreciate the Senator from North Dakota allowing me this time.
Mr. DORGAN. Mr. President, I agree with that view expressed by
Senator Burns.
Let me continue by saying definitions are everything. The reason the
States are very concerned is if the definition is not correct--that is,
if it is not specific in exactly what Congress proposes--we could see
billions and billions of dollars lost to the State and local
governments in revenue they otherwise would have expected.
We have a situation where we have a moratorium that expired. The
moratorium ought to be extended. I was prepared to extend it
permanently if we could find a definition that would be acceptable.
That has not yet proven to be the case. Some are now discussing, and I
was in some discussions a few moments ago, about a shorter term
extension, perhaps 4 years, and use the definition that exists in
current law in the moratorium that expired November 1 and try to fix
the position with respect to DSL, which is a problem. I don't know how
this will come out, but we have a responsibility to try to get this
right. We would not want to do something permanently that has a problem
attached to it, that will be a growing problem for State and local
governments.
Let me describe something that was in the newspaper recently because
it tells the dilemma we face if we get this wrong. We have been moving
in information technology from the old circuit switch telephone network
to an Internet-based network. Whether we communicate by voice, e-mail,
wireless, instant message, the data is being transmitted over the
Internet in digital packets.
If anyone wonders what I mean, look at a story in the Minneapolis
Star and Tribune. It is Quest Corporation announcing this past week
that it will roll out an Internet-based telephone service in Minnesota.
It describes that. That is the Internet-based service called VoIP,
Voice Over Internet Protocol. They say the approach to moving this out
over the Internet--that is, telephone service over the Internet--will
save on regulatory expenses and other costs and break the regulatory
logjam that exists. The article goes on to say:
The Quest Internet phone service would also be exempt from
salestax if Congress, as expected, extended and expands a tax
ban on Internet access to include Internet telephone service.
You can see the consequences. If you do not understand exactly what
you are doing and you have a definition that is not articulate and not
focused exactly on what you intend to accomplish, we can have very
significant consequences for State and local governments.
Let me end where I started by saying I happen to have supported both
of the previous moratoriums, and I will support a moratorium now
because I don't believe we want tax policy that retards the development
of the Internet. I don't believe we want tax policy that in any way
injures or interrupts the substantial expansion in technology and
information technology that we have seen in a very short period of
time.
However, even as we do this, let's make sure that we do not injure or
provide significant problems for State and local governments because
while we want to exempt the connection to the Internet, we did not want
to, with an unfunded mandate as my colleague from Tennessee calls it,
or some other approach, we begin preempting a retinue of State and
local taxes that have
[[Page S14233]]
been legitimately allied to various kinds of services. It is not
unusual to pay a tax on certain kinds of telephone services. It is not
unusual. That is one of the methods by which State and local
governments have developed a revenue base.
We described a very specific area that is off limits. Let's make sure
that description is appropriate, fair, and specific relating to how the
Congress intends this to work.
I know my colleague from California wishes to speak. I yield the
floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank the Senator from North Dakota.
Mr. President, I very much hope we do not pass the underlying bill
today. I believe it is premature. In my 10 years in the Senate, I have
never heard from more California cities, specifically 104 of them,
indicating their concerns about what the underlying bill would do to
the budgets of their cities.
Here in my hand are some of the letters. This issue has energized
cities in my State like no other. City mayors are incensed that we
would pass a law without knowing with certainty how it would impact
local revenues.
I have received letters from the League of California Cities, which
represents all of California's 478 cities, from county administrators,
police officer associations, firefighter associations, all of whom are
concerned about this bill--and I cannot answer their questions about
it.
But, they understand the larger issue. They are telling us the bill
contains language that threatens their ability to collect existing
taxes on certain telecommunications services. And, again, I cannot
answer these questions, and these questions cannot be answered on the
floor of the Senate today. They are too complex.
This is precisely why the Carper-Alexander amendment is the most
appropriate approach: extend the moratorium for another 2 years and do
a study. Bring the cities together with the professionals, and see
exactly what taxes are impacted by the underlying bill.
I want to take a moment to commend Senators Allen and Wyden for their
work and also to thank Senators McCain and Hollings for guiding the
issue through the Commerce Committee.
I also know the minority and majority staff on the Commerce and
Finance Committees have been working to provide the Senate with the
information it needs to weigh the competing views, and I thank them.
But the competing views are still there, and there are no answers for
the cities.
Since we originally passed the Internet Tax Freedom Act, we knew this
day would come, the day when we would need either to extend the tax
moratorium or allow the temporary moratorium to expire.
California has a passionate interest in maintaining unfettered access
to the Internet. We have a globally recognized concentration of high-
tech and telecommunications firms. We provide much of the
infrastructure required to gain access to the Internet and many of the
services that make the Internet so useful. However, we have to make
sure that maintaining tax-free access to the Internet does not
inadvertently destroy the budgets of cities and counties throughout my
State and the Nation. Many of them have come to rely on a variety of
telecommunications services fees and taxes as an important part of
their revenue base.
Now, I support the permanent extension of the Internet Tax Freedom
Act, but if I had to vote today on it, I would have to vote no. I am a
cosponsor of Senator Wyden's original legislation that would make
permanent the current moratorium. But if I had to vote today on the
Allen-Wyden bill, I would vote no because a number of uncertainties
have arisen and nobody can answer those uncertainties.
Additionally, as a letter circulating through the Senate today
indicates, we have been told that we violate the Unfunded Mandates Act.
I was here when that Act was passed in 1995. I voted for that Act. Now
we hear from the Congressional Budget Office that the underlying bill
would, in fact, create an unfunded mandate on States and local
jurisdictions. I think we need to find out how and what can be done to
prevent that from happening.
If this bill's definition of telecommunications services is
interpreted in an overly broad way, as many of us think it may be, it
will negatively impact local budgets. It will lead to the possibility
of reduced preparedness in our firehouses and our police stations and
less money for our schools, and it will do so at a time when States and
cities face large budget deficits.
Right now, in San Diego, CA, a huge debate is going on as to whether
the San Diego County firefighting forces are adequate; whether they
have the vehicles, whether they have the training, whether they have
the ability to really respond to fire conflagration. If we move ahead
precipitously today, this bill will make that situation worse.
I must tell you, as a former mayor, these are my concerns. For San
Francisco, the city in which I served, the bill's current definition of
telecommunications services could lead to a loss of $30 million
annually. San Francisco, as their experts compute, will lose $30
million of existing taxes if we pass this bill in its present form.
That translates into 300 police and firefighters.
In the city of Pasadena, the mayor, Bill Bogaard, says this would
cost his city $11.4 million. That is the legislation before this body
today. Let me quote from his letter:
By using vague language to include broadband Internet
access under the moratorium, we fear that the bill will allow
telephone and cable companies to use that protection to avoid
paying local franchise or utility fees.
He goes on to state:
It is our understanding that it was not the intent of the
bill's sponsors to endanger local franchising authority, but
the legislation has yet to be changed to correct these
unintended consequences.
Mr. President, this is not the first time in this debate we have
heard someone mention unintended consequences. The distinguished
Senator from New Jersey, Mr. Lautenberg, mentioned last night that
since this debate has started we have been hearing it from all of our
mayors and State officials all across this great land.
I wish to quote from one more of the letters I have received from our
mayors. This is from Judith Valles, the mayor of the City of San
Bernardino, which was the focus of one of California's main wildfires.
She wrote to me to point out, and I quote:
Currently, 150 cities in California levy a utility users
tax, or what is called a UUT, which in many cases includes
telephone and cable television services. Utility users taxes
provide a critical contribution to local discretionary
revenue, on average 15 percent of general purpose revenues,
making the utility users tax vital in helping fund critical
city services, particularly public safety.
This comes from a mayor who is still dealing with the threat that her
city faced due to the recent California wildfires. And why? Because we
are afraid to step back and give the telecommunications industry and
cities more time to work out a solution to this issue with which they
can both live?
I appreciate Senator Wyden's frustration that if we let the debate
rage on too long, it will never end. I appreciate that sometimes you
have to make a decision, and that if it is not perfect, you fix it
along the way. But this is not one of those times.
If you run the risk of repealing taxes that are already in place, you
unavoidably affect local budgets, and I am not willing to do that at
this time. I believe people want their tax dollars used on the local
level. They want better police. They want better fire protection. They
want the emergency services for adequate protection, particularly at
this point when America stands a risk from terror. And it makes no
sense to rush to pass a bill when you have cities all across this
country saying: Don't do it. It is going to inevitably impact what we
now levy.
This will not affect the telecommunications companies because the
Carper-Alexander amendment extends the current law with minor changes.
Just extend the moratorium for 2 years, do the study, permit the
parties to come together and work this out.
I do not think it is one Member's goal to undermine the existing tax
base of local cities and counties across this great Nation in passing a
permanent moratorium. We have never wanted to do that. We are told
today that the underlying bill does, in fact, do that. So why--why--
rush to pass it? My goodness.
[[Page S14234]]
I love my high-tech companies, but the cities and counties are where
the people are, and they need police and fire and emergency services.
In a day of cutbacks, it makes no sense, because we don't know what we
are doing today--and to simply willy-nilly pass a bill that may well do
that makes no sense. We then will have to shuffle around and find a way
to correct it at some point in the future. In the meantime, budgets are
upset all across the Nation. That is not good government, it is not
good public policy, and it is not good legislation.
I am here to add my support and the support of 104 cities in
California to the Carper-Alexander amendment. I would be most happy to
offer my services in any way I can to work with the committee chair,
the ranking member, and Senators Wyden and Allen, to try to find a
solution. It makes no sense to pass something without an adequate study
and the reconciliation of the industries.
I remember when we were working out a solution to the taxation of
cellular phone calls. At that time, we told the parties that we needed
them to develop a mutually agreeable solution to the problem of how to
tax mobile phone calls and then present it to Congress. The cellular
industry and local governments did exactly that. We now have a cellular
phone tax standard in place that most people can live with. It is my
understanding that the cities and States would be comfortable with this
same approach to Internet access taxes. That is the kind of approach I
believe will make this debate much more productive.
The debate on this issue should not be centered on who is right and
who is wrong. Unfortunately, that is where we are today. On one side we
have the telecommunications industry saying the cities are overreacting
to the impact this bill will have on their budgets. On the other side,
we have the cities saying the telecommunications industry is seeking
special, nearly unprecedented, tax treatment.
Why is it we would not want to give these two stakeholders time to
put their heads together and bring Congress an agreement they can both
live with?
Let me be clear: I want a permanent extension but not at the cost of
laying off firefighters, police officers, and teachers.
Should the Carper-Alexander amendment not be adopted, I will offer my
own amendment that simply strips out this confused language in the
context of a permanent moratorium. While not a perfect solution to the
complex problem we face, it is far better than forcing our cities and
States to send out pink slips to public safety personnel. I am hoping
it will not come to that. Cities and their technical experts have my
attention. This is true throughout the rest of the United States.
I hope the Carper-Alexander amendment will be passed and that the
moratorium will continue for 2 years so a study can be conducted and a
reconciliation of conflicts within this legislation settled so that we
can move ahead knowing we have not inadvertently decimated up to 15
percent of the tax base of local communities.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I ask unanimous consent that the letters
which I have from cities around the State of California be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
City of Burbank,
Office of the City Council,
Burbank, CA, September 12, 2003.
Re HR49 (Cox); SB52 (Wyden) and SB 150 (Allen)--Oppose.
Hon. Dianne Feinstein,
Hart Senate Building,
Washington, DC.
Dear Senator Feinstein: I am writing on behalf of the City
of Burbank to urge your opposition to provisions included in
the ``Internet Tax Non-Discrimination Act of 2003'' that
would modify the definition of ``Internet Access'' to include
telecommunications services ``to the extent such services are
used to provide Internet Access''. This expansion of the
definition would result in a loss of badly needed revenues
for California's cities and significantly affect our city's
ability to provide essential services. This is particularly
important during these tough economic times.
Currently 150 cities in California levy a utility users
tax (UUT), which in many cases, including our city, includes
telephone and cable television services. The UUT provides a
critical contribution to local revenues (nearly 15% of
general fund revenues); in fact, it is our third largest
revenue source (behind sales tax and property tax), making
the UUT vital in helping fund critical city services,
particularly public safety. The City of Burbank, along with
other cities, are already experiencing flat growth in the UUT
due mostly to the intense competition between phone service
providers, particularly cellular. Therefore, any additional
reduction to our UUT (or any other revenue source for that
matter) will have dire fiscal consequences.
The City of Burbank's UUT projection for Fiscal Year 2003-
04 is $16.5MM which is needed to pay for essential safety and
human services programs. Although it is difficult to
segregate the impact of excluding the internet access portion
of our UUT revenues, here are some examples as to what total
UUT figure of $16.5MM can fund for one full year: Salaries
plus benefits for 36 fire fighters; salaries plus benefits
for 40 police officers; run our library program (salaries/
benefits plus operating costs); run both the Daycamp/Summer
Parks/Teen Program and the Organized Sports program
(salaries/benefits plus operating costs); and run the Senior
Nutrition Program, the Human Services Program, the
Transportation Program, the Senior Recreation Program
(salaries/benefits plus operating costs).
As you contemplate this limitation on local governments'
ability to raise local revenue, it is essential to put this
restriction in the context with other limitations California
local governments currently face as we try to meet critical
local service needs. Remember that over the past several
decades, cities' control of discretionary revenue sources has
been severely eroded by state actions.
With the passage of Proposition 13, the state was given
control over the allocation of local property taxes. In the
early 1990s, the state exercised this control diverting
billions in dollars of local property taxes to meet the state
obligation to fund schools. In the 2003-04 fiscal year alone,
this shift is estimated to be a loss of $5.4 billion from
cities, counties and special districts.
In addition, cities and counties are faced with a
shortfall of Vehicle License Fee revenues in the current
fiscal year due to the ``deferral'' of payment of $825
million in backfill owed until 2006. This will have a
critical impact on the ability to provide local services
during the current fiscal year. The utility users tax
represents one of the few local revenue discretionary revenue
sources with rates, exemptions and terms determined at the
local level to conform to community interests and needs.
Although Burbank fully supports and recognizes the
importance of fostering the development of the Internet and
other new technologies, Congress must also recognize as it
considers this legislation that cities in California face
serious fiscal constraints at both the state and local level
already.
We need your help to ensure that this legislation is
amended to remove this detrimental expansion of the
definition of ``Internet access.'' We look forward to working
closely with you on this urgent matter.
Sincerely,
Stacey Murphy,
Mayor.
____
City of Concord,
Office of the Mayor,
Concord, CA, October 1, 2003.
Re S. 150--Internet Tax Non-Discrimination Act--Oppose/Amend.
Hon. Dianne Feinstein,
Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: The House has passed and the Senate
is poised to pass legislation (H.R. 49/S. 150) that,
according to the MultiState Tax Commission, will result in a
loss of revenue to state and local governments of up to $8.75
billion annually by 2006, and could be even greater as right-
of-way rents from non-tax franchise and access line fees are
also lost.
In a report released September 24, the MultiState Tax
Commission estimated that for every $1 billion these bills
cost state and local governments, our local communities will
lose: Almost 20,000 police officers; almost 20,000
firefighters; more than 27,000 hospital workers; almost
25,000 teachers; and more than 17,000 college instructors.
The legislation began as a simple extension of the Internet
Sales Tax moratorium, which was scheduled to expire November
1, 2003. H.R. 49/S. 150 has been amended to make the tax
moratorium permanent and to expand the types of services that
cannot be taxed.
Services for accessing the Internet that are taxable or
subject to franchise fees today--such as dial-up telephone
service, DSL and cable Internet services--would be exempt
from taxes and potentially free from franchise obligations.
Under current law, Internet access, ``does not include
telecommunication services''. This bill would expand the
definition of Internet access and thereby impose not only a
permanent moratorium on Internet access fees but also on
traditional telecommunications taxes.
I urge you to amend the bill to clarify that the moratorium
does not apply to traditional telecommunication services.
Very truly yours,
Mark A. Peterson,
Mayor.
[[Page S14235]]
____
City of Covina,
Covina, CA, October 21, 2003.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: The City of Covina is writing to
express our concerns with S. 150, the ``Internet Tax Non-
Discrimination Act.'' We fear that the language of S. 150
will deprive municipalities nationwide of billions of dollars
in tax and fee revenues in the years ahead and, in the
meantime, will result in litigation and confusion. It has
been our experience that some industry participants will use
the language of S. 150 to avoid paying local
telecommunications and utility taxes, as well as franchise
fees and rights-of-way fees owed on infrastructure deployed
in the public rights-of-way.
As currently worded, S. 150 poses a direct threat to two
traditional, yet separate and distinct, municipal powers.
These powers must be preserved. Municipal budgets are already
strapped by the recession, reduced federal and state budgets,
and the demands of homeland security. Local governments can
not afford to be hamstrung still further to the point where
vital municipal services are curtailed or eliminated
altogether.
The first traditional municipal power that S. 150 threatens
is the ability of local governments to impose
telecommunications taxes or to apply local utility taxes to
the provision of telecommunications services. Municipalities
in many states are authorized to impose such taxes, and many
municipalities currently rely on such taxes as a critical
part of their budget. Now, by expanding the scope of the
Internet tax moratorium to include telecommunications
services to the extent they are used to access the Internet,
S. 150 could immunize the bulk of all future
telecommunications services from local telecommunications and
utility taxes. That would not only starve local budgets; it
also would be highly regressive and unfair: Poorer residents
who lack a computer or can afford only plain/traditional
telephone service would continue to be subject to local
taxes, while businesses and wealthier residents with
computers, who can substitute e-mail and future technologies
like voice-over-Internet-protocol for dial tone service,
would be immune from local taxes.
The second traditional municipal power that S. 150
threatens is the ability of local governments to impose
franchise fees as ``rent'' for use of public rights-of-way on
companies, such as telecommunications and cable service
providers that use public property for private profit. Over
one hundred years of court-supported municipal rights are at
stake here. In 1893, the Supreme Court clarified that right-
of-way fees are not taxes but payments in the form of rent.
City of St. Louis v. Western Union Tel. Co., 148 US 92, 99,
13 S.CT. 485, 488 (1893). Ironically, the Supreme Court was
then considering whether the federal government could require
local governments to allow telegraph companies access to the
public right-of-way without compensation. More recently, the
5th Circuit in City of Dallas v. FCC, 118 F. 3d 393 (5th Cir.
1997) cited the holding of St. Louis when it found that a
franchise fee is not a tax, but an expense of doing business
that is essentially a form of rent. Covina receives a five
(5) percent franchise fee on incumbent local
telecommunication cable service providers as compensation for
use of local rights-of-way.
Federal legislation requiring local governments to allow
private use of public property such as the right-of-way, free
from local fees and charges, could be viewed as
constitutionally suspect. Such legislation might constitute a
federal taking of local government property without
compensation, or federal commandeering of local government
property to implement a federal regulatory program. Please
consider these concerns in developing a program that achieves
federal goals without harming local governments.
The City is prepared to work with you to:
Clarify that in adopting S. 150 and its House counterpart
(H.R. 49), the Congress does not intend to interfere with or
in any way limit the imposition or collection of any
municipal telecommunications taxes or utility taxes
applicable to telecommunications, nor with any municipal
rights-of-way fees nor gross percentage fees collected in
lieu of right-of-way fees.
Clarify that S. 150 does not preempt the imposition or
collection of excise taxes of general applicability
(including telecommunications and utility taxes) on services
that employ telecommunications, cellular or cable television
facilities, even if those services offer access to the
Internet.
Without these clarifications, the adverse financial impact
of S. 150 on local governments will be immense: the loss of
billions of dollars in telecommunications fees and taxes in
the years ahead for cities across the nation--fees and taxes
that have been consistently upheld in court. If the
legislation is passed with the currently proposed language,
Covina can calculate the loss to its already-strained
municipal budget, with direct effects on the General Fund.
Municipalities in California and elsewhere have long imposed
gross receipt-based fees on telecommunications, cable
television and other providers' use of local rights-of-way
for private profit, and many municipalities across the nation
have imposed gross receipts-based taxes on the provision of
telecommunications service or utility services, including
telecommunications and cable television services. Federal
preemption of these rights, whether intended or not, will
result in immediate financial loss to Covina, and the size of
that loss will only grow in the future as more communications
shift to broadband, Internet-based technologies. We are
confident this is not the legacy you intend or desire. We are
offering to work with you in any way we can to avoid such an
unfortunate result.
Sincerely,
Walter Allen III,
Mayor.
____
City of Pasadena,
Office of the Mayor,
Pasadena, CA, September 26, 2003.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: The City of Pasadena has some
concerns with legislation that has been approved by the House
and is pending in the Senate (HR 49, S 150) that would extend
on a permanent basis the current moratorium on state and
local taxation of Internet access fees.
While the City has not actively opposed the extension of
the 1998 Internet Tax Freedom Act moratorium (even though it
does represent a federal intrusion into an issue
traditionally handled on the local level), we do believe
there is room for interpretation regarding the manner in
which the legislation treats broadband Internet access. By
using vague language to include broadband Internet access
under the moratorium, we fear that the bill will allow
telephone and cable television companies to use that
protection to avoid paying local franchise or utility fees.
These fees are fair and equitable payments for a company's
use of the public right-of-way, and to lose that revenue
would be damaging to our local budgets that are already
strained.
It is our understanding that it was not the intent of the
bill sponsors to endanger local franchising authority but the
legislation has yet to be changed to correct these unintended
consequences. I hope that you will urge your colleagues to
amend the legislation to extend the Internet tax moratorium
to ensure local franchising, utility fees, and right-of-way
authority are protected. Thank you for your assistance with
this important matter.
Sincerely,
Bill Bogaard,
Mayor.
____
City of Lakeport,
Lakeport, CA, October 14, 2003.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: The City of Lakeport seeks your
assistance in opposing language added to the Internet Tax
Non-Discrimination Act (S. 150) that would expand the
coverage of the moratorium by adding ``telecommunications
services'' to the definition of Internet access. It would
prohibit a local tax on any ``telecommunication service''
that is used for Internet access. Nearly all telephone
services, including local dial up, wireless, satellite, and
broadband (DSL and cable modem), provide Internet access.
This language would have a major adverse impact on our City
and the financing of its essential services, such as police,
fire, streets, and parks.
Soon, major telephone and Internet service providers will
offer ``packages'' that bundle together Internet access and
unlimited telephone services. Unfortunately, under the
proposed language, such bundled services will likely be
considered ``tax-free'', which we find regressive and unfair.
Even if the average consumer would continue to be subject to
the local tax (UUT) on traditional telecommunication
services, those persons who could afford computers and high-
speed Internet access (i.e., DSL and cable modem) would slip
through this loophole and permanently escape taxation on
similar services. No matter how much we wish to support the
continued growth of the Internet, discriminatory taxation, or
favoring the ``haves'' over the ``have-nots,'' is not the
answer.
Finally, we want to assure you that we are in no way asking
for your opposition to this language as a way of helping us
achieve new tax revenues. We are only asking for help with
protecting our city's badly needed existing tax revenues on
telecommuncation services.
Thank you for your attention to this urgent matter. If you
have any questions or need additional information, please
feel free to call the League of California Cities Executive
Director, Chris McKenzie, or your staff can contact the
League's Washington representative, Eve M. O'Toole.
Sincerely,
R.E. Lamkin,
Mayor.
____
City of Monterey,
Monterey, CA, September 15, 2003.
Subject: Opposition to Internet Tax Non-Discrimination Act of
2003.
Hon. Dianne Feinstein,
U.S. Senator, Hart Building,
Washington, DC.
Dear Senator Feinstein: On behalf of the City of Monterey,
I am writing to urge your opposition to provisions included
in the ``Internet Tax Non-Discrimination Act of 2003'' that
would modify the definition of ``Internet Access'' to include
telecommunications services ``to the extent such services are
used to provide Internet Access''. This expansion of the
definition would result in a
[[Page S14236]]
loss of badly needed revenues for California's cities and
significantly affect out City's ability to provide essential
services.
Utility users taxes provide a critical contribution to
local discretionary revenues making the UUT vital in helping
fund critical city services, particularly public safety. For
the City of Monterey this amounts to $2.4 million annually or
about 6% of the General Fund budget. This revenue source
directly supports police, fire, parks, streets and library
services. The significance of the UUT has only increased as
our City's other discretionary revenues have come under
siege.
As you contemplate this limitation on local governments'
ability to raise discretionary revenue, it is essential to
put this restriction in the context with other limitations
California local governments currently face as we try to meet
critical local service needs. Remember that over the past
several decades, cities' control of discretionary revenue
sources has been severely eroded by state actions.
With the passage of Proposition 13, the state was given
control over the allocation of local property taxes. In the
early 1990's, the state exercised this control diverting
billions in dollars of local property taxes to meet the state
obligation to fund schools. In the 2003-04 fiscal year alone,
this shift is estimated to be a loss of $5.4 billion from
cities, counties and special districts.
In addition, cities and counties are faced with a shortfall
of Vehicle License Fee revenues in the current fiscal year
due to the ``deferral'' of payment of $825 million in
backfill owed until 2006. This will have a critical impact on
the ability to provide local services during the current
fiscal year. The utility users tax represents one of the few
local revenue discretionary revenue sources with rates,
exemptions and terms determined at the local level to conform
to community interests and needs.
Although the City of Monterey fully supports and recognizes
the importance of fostering the developing of the Internet
and other new technologies, Congress must also recognize as
it considers this legislation that cities in California face
serious fiscal constraints at both the state and local levels
already.
We need your help to ensure that this legislation is
amended to remove this detrimental expansion of the
definition of ``Internet access.'' We look forward to working
closely with you on this urgent matter.
Sincerely,
Dan Albert,
Mayor.
____
City of Moreno Valley,
Office of the Mayor,
Moreno Valley, CA, September 16, 2003.
Subject: Internet Tax Non-Discrimination Act of 2003--Oppose.
Hon. Dianne Feinstein,
U.S. Senate, Hart Building,
Washington, DC.
Dear Senator Feinstein: On behalf of the City of Moreno
Valley, I respectfully request that you oppose provisions
included in the Internet Tax Non-Discrimination Act of 2003
(H.R. 49 and S. 52) that would change the definition of
``Internet access'' to include telecommunications services
``to the extent that such services are used to provide
Internet access.'' This expansion of the definition would
result in the loss of badly needed revenues for California's
cities, and negatively affect our city's ability to provide
essential services.
Moreno Valley is one of 150 cities in California that levy
a utility users tax (UUT), which in our case includes
telephone and cable television services. Utility users' taxes
contribute significantly to the health of these cities'
discretionary budgets. On average, the UUT comprises fifteen
percent (15%) of general-purpose revenues in cities where it
is collected. In Moreno Valley, the $9.4 million UUT
comprises twenty one percent (21%) of the city's general fund
revenue for fiscal year 2003/2004. Our largest general fund
expense, by far, is public safety; sixty one percent (61%) of
the city's general fund will be spent this year for police
and fire services. Exemption of telecommunications services
from taxation based solely on their relation to consumer
Internet use will greatly hinder our efforts to finance these
fundamental services.
Please consider this particular limitation on local
governments' ability to raise discretionary revenues in
context with state legislative actions, which have
historically eroded local control of general-purpose funds.
With the passage of Proposition 13, the state assumed control
over the allocation of local property taxes. The state abused
this authority in the early 1990's by ``temporarily''
shifting property tax dollars earmarked for local government,
to meet the state's obligation to fund schools. A decade
later, this shift results in a loss of $5.4 billion from
cities for fiscal year 2003/2004 alone.
In the state budget for the current year, first-quarter
revenue payments from the Vehicle License Fee, another
constitutionally-protected revenue source for cities, have
been ``deferred'' until 2006. The result: an immediate loss
of $825 million for cities statewide, and $1.8 million for
Moreno Valley. Additionally, $135 million in property tax
revenue was shifted from local redevelopment agencies this
year, augmenting Moreno Valley's revenue losses by $300,000.
Moreno Valley and other California cities have managed to
retain adequate service levels despite the poor fiscal
management practices of the state, primarily through the
development of new revenue sources. While the City fully
supports and recognizes the importance of fostering the
development of the Internet and other new technologies, we
hope the Senate recognizes that local governments cannot
maintain vital services if the state and Federal governments
continue to impair their ability to generate revenue.
We need your help to ensure that this legislation is
amended to remove this detrimental expansion of the
definition of ``Internet access.'' If there is any additional
information we can offer you regarding this urgent matter,
please contact us.
Sincerely,
William H. Batey II,
Mayor.
____
City of Novato,
Novato, CA, October 13, 2003.
Senator Dianne Feinstein,
Hart Building, U.S. Senate,
Washington, DC.
Dear Senator Feinstein: On behalf of the City of Novato, I
am writing to urge your opposition to provisions included in
the ``Internet Tax Non-Discrimination Act of 2003'' that
would modify the definition of ``Internet Access'' to include
telecommunications services ``to the extent such services are
used to provide Internet Access''. This expansion of the
definition would result in a loss of badly needed revenues
for California's cities and significantly affect our city's
ability to provide essential services.
Currently 150 cities in California levy a utility users tax
(UUT), which in many cases includes telephone and cable
television services. Utility users taxes provide a critical
contribution to local discretionary revenues, on the average
15 percent of general-purpose revenues, making the UUT vital
in helping fund critical city services, particularly public
safety. Include how much revenue your City estimates is
collected from your UUT? And what services in your City do
these tax revenues support? Please be as specific as possible
and translate into terms of potential cuts to specific
programs or personnel. The significance of the UUT has only
increased as our City's other discretionary revenues have
come under siege.
As you contemplate this limitation on local governments'
ability to raise discretionary revenue, it is essential to
put this restriction in the context with other limitations
California local governments currently face as we try to meet
critical local service needs. Remember that over the past
several decades, cities' control of discretionary revenue
sources has been severely eroded by state actions.
With the passage of Proposition 13, the state was given
control over the allocation of local property taxes. In the
early 1990s, the state exercised this control diverting
billions in dollars of local property taxes to meet the state
obligation to fund schools. In the 2003-04 fiscal year alone,
this shift is estimated to be a loss of $5.4 billion from
cities, counties and special districts.
In addition, cities and counties are faced with a shortfall
of Vehicle License Fee revenues in the current fiscal year
due to the ``deferral'' of payment of $825 million in
backfill owed until 2006. This will have a critical impact on
the ability to provide local services during the current
fiscal year. The utility users tax represents one of the few
local revenues discretionary revenue sources with rates,
exemptions and terms determined at the local level to conform
to community interests and needs.
Although the City of Novato fully supports and recognizes
the importance of fostering the development of the Internet
and other new technologies, Congress must also recognize as
it considers this legislation that cities in California face
serious fiscal constraints at both the state and local level
already.
We need your help to ensure that this legislation is
amended to remove this detrimental expansion of the
definition of ``Internet access.'' We look forward to working
closely with you on this urgent matter.
Sincerely,
Roderick J. Wood,
City Manager.
____
City of Placentia,
Placentia, CA, October 1, 2003.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building,
Washington, DC
Dear Senator Feinstein: On behalf of the Citizens of
Placentia, I am writing to express my Concerns about S. 150,
the Internet Tax Non-Discrimination Act. I am very concerned
about language in the bill that expands the definition of
``Internet access'' and thereby imposes a permanent
moratorium not only on state and local taxes on Internet
access fees but also on traditional telecommunications taxes.
I strongly urge that you amend the language to clarify that
the moratorium only applies to Internet access and to to
other taxable telecommunications services or products, or to
franchise or rights-of-way fees.
Under current law, Internet access ``does not include
telecommunication services.'' The bill would change this to
``does not include telecommunication services except to the
extent that such service is used for Internet access.'' While
this proposal may have been well intended in that it proposes
to ensure that the moratorium does not favor one form of
technology over another, the language is so broad it can be
interpreted to
[[Page S14237]]
mean we will be prohibited from collecting taxes on
traditional telecommunications services.
As you know, states and cities across America are suffering
from the most severe fiscal crisis since World War II. The
loss of our telecommunications revenue would be a significant
blow to Placentia. The city could lose an estimated $500,000
if this bill is enacted as currently drafted. We can not
afford such a loss.
As reported by the Senate Commerce Committee, S. 150 is
unacceptable. Again, I urge you to amend the bill to clarify
that the moratorium does not apply to traditional
telecommunications services. If you have any questions, feel
free to contact me at 714/993-8117.
Sincerely,
Robert D'Amato,
City Administrator.
____
City of San Bernardino,
Office of the Mayor,
San Bernardino, CA, September 12, 2003.
Hon. Dianne Feinstein,
Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: On behalf of the City of San
Bernardino I am writing to urge your opposition to provisions
included in the ``Internet Tax Non-Discrimination Act of
2003'' that would modify the definition of ``Internet
Access'' to include telecommunications services ``to the
extent such services are used to provide Internet Access''.
This expansion of the definition would result in a loss of
badly needed revenues for California's cities and
significantly affect our city's ability to provide essential
services.
Currently 150 cities in California levy a utility users tax
(UUT), which in many cases includes telephone and cable
television services. Utility users taxes provide a critical
contribution to local discretionary revenues, on the average
15% of general-purpose revenues, making the UUT vital in
helping fund critical city services, particularly public
safety. The significance of the UUT has only increased as our
City's other discretionary revenues have come under siege.
As you contemplate this limitation on local governments'
ability to raise discretionary revenue, it is essential to
put this restriction in the context with other limitations
California local governments currently face as we try to meet
critical local service needs. Remember that over the past
several decades, cities' control of discretionary revenue
sources has been severely eroded by state actions.
With the passage of Proposition 13, the state was given
control over the allocation of local property taxes. In the
early 1990s, the state exercised this control diverting
billions in dollars of local property taxes to meet the state
obligation to fund schools. In the 2003-04 fiscal year alone,
this shift is estimated to be a loss of $5.4 billion from
cities, counties and special districts.
In addition, cities and counties are faced with a shortfall
of Vehicle License Fee revenues in the current fiscal year
due to the ``deferral'' of payment of $825 million in
backfill owed until 2006. This will have a critical impact on
the ability to provide local services during the current
fiscal year. The utility users tax represents one of the few
local discretionary revenue sources with rates, exemptions
and terms determined at the local level to conform to
community interests and needs.
Although the City of San Bernardino fully supports and
recognizes the importance of fostering the development of the
Internet and other new technologies, Congress must also
recognize as it considers this legislation that cities in
California face serious fiscal constraints at both the state
and local level already.
We need your help to ensure that this legislation is
amended to remove this detrimental expansion of the
definition of ``Internet access.'' We look forward to working
closely with you on this urgent matter.
Sincerely,
Judith Valles,
Mayor.
____
City of San Luis Obispo,
Office of the City Council,
San Luis Obispo, CA, October 10, 2003.
Re: S. 150 Internet Tax Non-Discrimination Act Notice of
Opposition
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: The City of San Luis Obispo seeks
your assistance in opposing language added to the Internet
Tax Non-Discrimination Act (S. 150) that would expand the
coverage of the moratorium by adding ``telecommunications
services'' to the definition of Internet access. It would
prohibit a local tax on any ``telecommunication service''
that is used for Internet access. Nearly all telephone
services, including local dial up, wireless, satellite, and
broadband (DSL and cable modem), provide Internet access.
This language would have a major adverse impact on our City
in funding essential services such as police, fire, streets
and parks. In our city, utility user taxes (UUT) are one of
our ``Top Five'' General Fund revenues, representing 12% of
general-purpose revenues. ``Telecommunication services''
account for a significant portion of UUT revenues, bringing
in $1.3 million in 2002-03. This is the equivalent of 15
police officers. In these fiscally tough times, where we have
already made significant reductions in day-to-day public
safety services to balance the budget, any further revenue
cuts will result in crippling service reduction in our
community.
And the impact will only get worse in the future. Soon,
major telephone and Internet service providers will offer
``packages'' that bundle together Internet access and
unlimited telephone services. Unfortunately, under the
proposed language, such bundled services will likely be
considered ``tax-free,'' which we find regressive and unfair.
Even if the average consumer would continue to be subject to
the local tax (UUT) on traditional telecommunication
services, those persons who could afford computers and high-
speed Internet access (such as DSL and cable modem) would
slip through this loophole and permanently escape taxation on
similar services. No matter how much we wish to support the
continued growth of the Internet, discriminatory taxation is
not the answer.
Finally, we want to assure you that we are not asking for
your opposition to this language as a way of helping us
achieve new tax revenues: we are only asking for help in
protecting our City's badly needed existing tax revenues.
Sincerely,
David F. Romero,
Mayor.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Mr. President, this is a very important issue we have
in front of us. I wish to pause for a moment and address an issue I saw
in the Washington Post this morning that affects what we are doing here
this morning and what we do every single day; that is, our ability to
work together to ask questions on behalf of American taxpayers, on
behalf of all of the people we represent, to be able to get answers
from each other and from the administration, and to have the best
information we can so we can make the right decisions.
I was quite shocked this morning to see in the Washington Post a
headline that says: ``White House Puts Limits On Queries from
Democrats.'' Reading this more closely, it says:
The Bush White House, irritated by pesky questions from
congressional Democrats about how the administration is using
taxpayers' money, has developed an efficient solution.
It will not entertain any more questions from opposition lawmakers.
I thought for sure I was not awake. So I rubbed my eyes again and
looked at it again and read the same thing. It went on to say:
The decision, one that Democrats and scholars say is highly
unusual, was announced in an e-mail on Wednesday to House and
Senate appropriations committees.
Further down there is a comment from Norm Ornstein, a congressional
specialist at the American Enterprise Institute. He said:
I've not heard of anything like this happening before. This
is obviously an excuse to avoid providing information about
some of the things the Democrats are asking for.
I appreciate that in these days of debate and the important issues we
have in front of us, we have been asking some pesky questions of this
administration. Pesky questions such as: How specifically will we spend
$87 billion going to Iraq, and what specifically will be done to
rebuild? What is the plan for our soldiers? What is the plan in terms
of making sure we complete the mission and bring them home safely?
We have asked pesky questions such as: Why is it that subsidiaries of
Halliburton get billions of dollars in no-bid contracts when our own
businesses and our own States are unable to find out about bidding
processes and unable to participate in what should be an open,
transparent process, given the fact these are American tax dollars,
public tax dollars? And we have asked pesky questions about Bechtel.
Mr. REID. Will the Senator yield for a question?
Ms. STABENOW. I am honored to yield to my friend and leader from
Nevada.
Mr. REID. Is it true that you served in the House of Representatives
before serving in the Senate?
Ms. STABENOW. Yes.
Mr. REID. During your tenure there, I am sure you had many occasions
to send inquiries to the administration. Whether it was Veterans
Affairs, the Social Security Administration, White House council, you
have done that over the years; is that not true?
Ms. STABENOW. Absolutely.
Mr. REID. Over the years, it is true that you have received
responses?
Ms. STABENOW. Yes.
Mr. REID. And there was never a question raised as to whether it was
a
[[Page S14238]]
Democratic Congressman or Senator or Republican House Member or Senator
asking the question; isn't that right?
Ms. STABENOW. Absolutely.
Mr. REID. Didn't you always feel that no matter what political party
the Member of Congress was who asked the question, it had no bearing on
the answer? Isn't that true?
Ms. STABENOW. Yes.
Mr. REID. I read that article to which you refer. It seems there is
now new criteria established at the White House, that only if you are a
Republican will they answer questions of a Member of Congress. Is that
what that article said?
Ms. STABENOW. That is exactly what it says.
Mr. REID. How many people live in the State of Michigan?
Ms. STABENOW. We have over 9 million people in the State of Michigan.
Mr. REID. And Michigan is represented by two Democratic Senators.
Ms. STABENOW. That is correct.
Mr. REID. The distinguished senior Senator, Carl Levin, who everyone
acknowledges is one of the finest Senators ever to serve in this body.
Ms. STABENOW. Absolutely.
Mr. REID. He is an expert on issues relating to defense. I am sure on
a weekly basis, if not more often, he makes inquiries at the Pentagon
and other offices of the executive branch of Government as to questions
he has in his role as the lead Democrat on the defense committee; is
that right?
Ms. STABENOW. In fact, I add that over the years, under Democratic
and Republican Presidents, the senior Senator from Michigan asked very
important questions about contracting. He was the first, I believe, to
come forward with the acknowledgement and questions about the $600
wrenches and other questions of excesses at the time in the past from
the Pentagon. To Democratic or Republican Presidents, he has asked some
pretty ``pesky'' questions.
Mr. REID. What that article says is a State of 9 million people,
which has democratically elected Democratic Senators, these two
Senators would not be able to ask questions of that administration; is
that what it does?
Ms. STABENOW. That is how it appears. We have a lot of very serious
questions our constituents want us to ask of the administration.
Mr. REID. I direct this to the Senator in a way that I can only say
is as sincere as I can be. I very much appreciate the Senator bringing
this to the attention of the American people through the Senate. It is
our ability to bring matters to the floor that make this country
better--there are other ways of showing how great this country is, but
certainly one is being able to bring matters to the Senate floor
without getting permission of the administration.
I applaud the Senator from Michigan for jumping on this issue very
quickly, as the Senator has done on many other issues.
Ms. STABENOW. In the State of Michigan, we have many questions being
asked--a lot that we asked of the administration on homeland security,
how we are funding our borders and keeping them secure. Why is it we
are not providing more for our first responders? We have given some
dollars but certainly a very small amount of what they need. Why are we
not funding more for communications equipment that allows one city's
police department to talk to another city's police department, or the
police department to talk to the fire department, or the EMS workers to
be able to do their job in a community? Why is it we are not providing
more dollars directly for those kinds of responsibilities? They are
right on the front lines. When you have a problem, when there is a
serious crisis, whether it is homeland security or some other crisis in
the community, you pick up and call 911, and we want to know people are
prepared.
Those are questions about appropriations. Those are questions we
asked of the administration. How are you moving forward and designing
and implementing a Department of Homeland Security? What are we doing
at the borders?
In my State, we have other questions we are asking that we are
assuming the administration will endeavor to answer. It relates to the
issues of Canadian trash trucks now coming across our borders into
Michigan--about 200 a day--that are not being thoroughly inspected at
the border because there is not a way to do it without putting an
inspector in the back of every truck.
We have serious concerns about what is happening in terms of homeland
security. Those are questions. How can we work together? How can we
make sure we are addressing those issues that will allow our citizens
to be safe, as it relates to these trash trucks coming across the
border. They need to be stopped.
Over 165,000 people in my State signed an online petition to support
my request to the EPA that they get involved in stopping these trucks
and using the authority they have. Now, we go through the
appropriations process on this matter. I have been very appreciative of
the fact that we have worked together on a bipartisan basis in the
Senate to address these issues and put more equipment at the border. I
have been pleased to have the support of leaders on the other side of
the aisle to support efforts to do that, to work together on behalf of
the people we represent and make sure they are safe.
But when I see things such as this kind of a story, that e-mails are
going out saying the White House doesn't like our ``pesky'' questions
about how dollars are spent and suggestions that maybe they could be
spent differently and better and more wisely in our States--they don't
like those questions, so they sent out an e-mail saying they are not
going to answer them anymore. They are only going to answer the
questions coming from the Republican committee chairs. They are not
going to answer questions coming from us. This is deeply disturbing and
it should be disturbing to every single one of the people we represent.
It should be, frankly, disturbing to people on both sides of the aisle.
I was in the House of Representatives for 4 years under a different
administration. I asked a lot of tough questions of a lot of
Departments and I expected answers. I expected that when my Republican
colleagues asked questions of that Democratic administration, they
would be given answers as well.
We are a separate branch of Government. We are the appropriators, all
of us. The Constitution didn't say, by the way, only the majority party
can have access to information and only the majority party is
responsible for appropriations and guaranteeing the wise use of
American tax dollars. They said the Congress of the United States is
responsible, and that is all of us.
I think it is very important that we send a message very quickly from
the Senate that we object to this, object to it together. We work hard
on appropriations. We ask a lot of questions. We have a lot of give and
take. Amendments are proposed; they rise, they fall. That is the
process. We all respect each other and we all respect that process. At
the end of the day, we assume that if we are asking, as they say,
``pesky'' questions, we will get answers regardless of who we are. We
may not agree with the answers.
That is why we live in a democracy. That is the democratic process.
We respect the fact there are differences in views, priorities, and
values, but we do not accept--I do not accept--that we will be blocked
from receiving information. It would be astounding if every time, as a
Member of this body, I had to ask for a freedom of information request
from the administration in order to get questions answered on items of
importance to the people I represent--whether it be agriculture,
manufacturing, homeland security, health care, education, the
environment, or transportation. I could go on and on. We have critical
issues we are responsible for addressing and responsible for doing it
in the most efficient and effective way we can.
There is only a limited amount of resources and we have to make sure
we make wise decisions with those resources. That is our job.
Amendment No. 2141 to Amendment No. 2136
Ms. STABENOW. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Michigan [Ms. Stabenow] proposes an
amendment numbered 2141.
Ms. STABENOW. I ask unanimous consent that further reading of the
amendment be dispensed with.
[[Page S14239]]
The amendment is as follows:
At the appropriate place insert the following:
Since, Article I of the U.S. Constitution grants Congress
the power of the purse; and
Since, Congressional oversight of Executive Branch
expenditures of public funds is essential in order to prevent
waste, fraud, and abuse of taxpayers dollars; and
Since, Congress can only exercise its oversight
responsibilities if the White House and Executive Branch
agencies are responsive to requests for information about
public expenditures;
Therefore it is the Sense of the Senate that,
The White House and all Executive Branch agencies should
respond promptly and completely to all requests by Members of
Congress of both parties for information about public
expenditures.
Ms. STABENOW. Mr. President, I simply say this is a very short
amendment. In part, it indicates:
Since, Congressional oversight of the Executive Branch
expenditures of public funds is essential in order to prevent
waste, fraud, and abuse of taxpayer dollars; and
Since, Congress can only exercise its oversight
responsibilities if the White House and Executive Branch
agencies are responsive to requests for information about
public expenditures;
Therefore, it is the Sense of the Senate that,
The White House and all Executive Branch agencies should
respond promptly and completely to all requests by Members of
Congress of both parties for information about public
expenditures.
I hope we will have unanimous support for this amendment and that we
can quickly send a message to the White House and ask that they reverse
the policy laid out this morning in this article.
Mr. DURBIN. Mr. President, I wish to join the comments of the Senator
from Michigan. It is, I am sure, painful and distracting for the
administration to receive inquiries from Congress. It sure would be a
lot easier if Congress wasn't around to mess up their work. I mean, we
ask all these hard questions about what they are doing with the
taxpayers' dollars. What are you doing to make America a safer place? I
am sure if they did not have to answer those questions and be held
accountable, they would have a lot more time to do other things.
I think the reason for the questions gets down to a basic document
called the Constitution. If I remember correctly from early lessons, we
do have three coequal branches of Government and a system of checks and
balances. This administration has decided that particular part of the
Constitution is going to be ignored.
Frankly, I don't think that serves our Nation very well. Whether it
is a Democratic administration or a Republican administration, the fact
is they have to be held accountable. The way they are held accountable
is not only through an election, but through the operations of Congress
which appropriates moneys, passes laws, and asks hard questions.
Now we see the official policy of this administration is to say we
are only going to answer Republican-approved questions. That, to me, is
a sad commentary on this administration which has, frankly, written a
record of concealment in the years they have been here.
You recall the lawsuit that was involved when we drew up the Energy
bill. We asked the Vice President of the United States, who was one of
the designers of the administration's Energy bill, which special
interest groups were sitting in the room when they wrote the bill. He
said to Congress: It is none of your business. We don't have to tell
you. We brought a suit against the administration asking for that
information and we were unsuccessful.
Today we know there were special interest groups present. We just
don't know who they were. If you look at the bill, you can see who they
likely were. They are the ones that were rewarded--oil companies and
major energy companies. They are the ones who did very well with this
Energy bill.
When the Senator from Michigan raises this question as to what this
new administration policy means, I think she really hits the nail on
the head. Congress has an important constitutional role of oversight on
this administration and any administration, and for this administration
to decide that certain Senators and Congressmen cannot ask questions
that will be answered, I think is going to set us back.
I had the same experience with the Department of Justice. Attorney
General John Ashcroft, who served in this Senate for years and asked
many questions of previous administrations, really loathes to answer
any questions that come particularly from Democratic Senators. That has
caused a lot of, I guess, concern because some of us believe there are
important questions that need to be asked and answered.
The PATRIOT Act, for example, was a new delegation of authority 2
years ago to the Government. It gave the Government more power than
they had before, power that comes close to, if it doesn't, infringing
on our rights and liberties. We asked some questions: How is this
Department of Justice using the PATRIOT Act? Unfortunately, the
Attorney General has not been responsive. One might say: Well, he comes
to Congress, doesn't he? He submits himself to questions? If we look at
the record, we will see this Attorney General's record of coming to
Congress and being held accountable is a record that shows he doesn't
care to do that either.
They don't answer written inquiries, and the Attorney General does
not appear personally. Frankly, that leads to mistrust, and it doesn't
speak well of a democracy where that is the hallmark of their policy.
It strikes me Congress has some important responsibilities here, and
one of them is reflected in the issue raised by the Senator from
Michigan. Another one is reflected in this so-called 30-hour debate,
this one-sided debate which is to take place next week. It appears the
Republican majority in the Senate, 51, believe they have been treated
unfairly because the President has only had 168 of his judicial
nominees approved while 4 have been held up. That is right, the score
is 168 to 4, and they are arguing that is unfair, so unfair we need to
tie up the Senate, we need to stop consideration of appropriations
bills, we need to stop any consideration of bills that might help the
men and women in uniform who are fighting for us in Iraq and
Afghanistan. We don't have time for that, but we have to spend 30
straight hours in a one-sided debate on the Republican side arguing
that holding up 4 judges out of 172--4 out of 172--is somehow
unconstitutional or unfair or unjust.
It goes to the heart of this same document, our Constitution, which
says the Senate is not a rubberstamp. The Senate has the power to not
just consent to judges, but to advise and consent, and that advise-and-
consent role includes asking hard questions of judicial nominees.
The four who have been held up so far from the Bush White House, I
think, represent the most extreme of his nominees. But there are many
others who have been approved who have philosophies entirely consistent
with the President and his administration.
Make no mistake, out of the 168 nominees who have gone through this
Senate, a record number for any President, 168 have been approved. Of
those, we will find many conservative Republicans with views much
different than my own. We accept that. But for these 4, we think they
have crossed a line, a line which really calls on us in our capacity as
Senators with responsibility of the advise-and-consent clause to say at
some point we have to say no for 4 judges out of 172.
I might add on this bill that is before us, at a later moment I will
be offering an amendment. It is an amendment which really doesn't
appear to have much to do with the Internet tax question, but it is an
amendment I am going to continue to offer on every available bill until
the Senate goes on record and passes it again and enacts it into law.
It is an amendment which passed this Senate about 2 weeks ago by a vote
of 96 to 3. It is an amendment which says Federal employees who are
members of our National Guard and Reserve units who are activated will
have their Federal salaries protected while they are serving our
country.
This is exactly what happens to State employees in dozens of States
and city and county employees across America where their units of
government have said: If you go off to serve our Nation in the Guard
and Reserve, we will stand behind you. We will make up the difference
in your salary. We will protect your families' income while you are
serving our Nation and risking your lives.
Sadly, the same standard is not applied to Federal employees. Here we
[[Page S14240]]
are with 10 percent of the Guard and Reserve in Federal employment--
120,000 of those who are in the Guard and Reserve are in Federal
employment; 23,000 have been activated, and we do not make up the
difference in their salaries while overseas.
For some, there is no difference, but for some there is a big
disparity. I offered this amendment on the floor, and it was adopted 96
to 3.
Mr. McCAIN. Will the Senator yield so I can make an announcement?
Mr. DURBIN. Yes, without losing my right to the floor.
The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so
ordered.
Mr. McCAIN. Madam President, for the benefit of my colleagues, we
have been in some intense negotiations on the Internet tax issue. We
have made significant progress. We still have one significant hurdle
remaining where we can perhaps get all sides together. There is about a
50-50 chance. But we should know in about 20 minutes as to whether we
will reach this very important agreement which would basically
eliminate any major issues associated with the Internet tax issue.
I thank my colleague from Illinois for yielding. I yield the floor.
Mr. WYDEN. Will the Senator yield?
Mr. DURBIN. I will be happy to yield.
Mr. WYDEN. Madam President, with the chairman of the Commerce
Committee, and my friend from North Dakota, Senator Dorgan, who has
worked with me on this now for 7 years, we have made some significant
headway in the last half hour, 45 minutes. To get this done, there are
some difficult choices that have to be made. One that would be very
painful for me, given my involvement in the original law, would be to
accept some sort of time limit rather than make it permanent.
I say to the Senate, I am willing to look at that in the name of
trying to find common ground. What we can't have as we go through this
is to have DSLs, this tremendously exciting service which in so many
instances is going to be the key for folks getting Internet access in a
wireless fashion, hammered again and again in the future. We are going
to see if we can find common ground.
The point of this law more than 5 years ago was to ensure
technological neutrality so the Internet and the various ways it is
delivered would not, in some way, advance some at the expense of
others. We still have to find a way for that technological neutrality.
We may be able, given the fact that the staffs are working now to
have a breakthrough on this in the next half an hour, but as the author
of the original law in the Senate, I want to make it clear that I am
open to trying to find some common ground and make some significant
concessions to do it. That is what we are considering now.
I thank the Senator from Illinois for yielding.
Mr. DURBIN. I, of course, thank the Senator from Oregon. I appreciate
the hard work of the Senator from North Dakota, the Senator from
Arizona, and the Senator from Oregon on this important legislation.
I mentioned earlier the reservist pay amendment which I will be
offering at some point on this legislation, but there is another
amendment which I will be offering which I would like to alert the
sponsors of so it comes as no surprise. It is our understanding that if
there is a tax moratorium on Internet operations, which I would support
with carefully defined circumstances, it will result in a substantial
savings to telecommunications companies across the United States. I am
going to be offering an amendment during the course of consideration of
this bill which says that the savings to these companies shall be
passed on to the consumers in America.
It strikes me that at a point in time when we are in a recession,
when families are struggling, some facing unemployment, others trying
to make ends meet, that if we are going to relieve this industry of
substantial taxation, millions if not billions of dollars over time,
the savings ought to go to families, the customers. I think that would
be a good move on our part.
So if we want to talk about invigorating the economy, then why not
reduce the telephone bill or the tax bill that a family faces on a
monthly basis?
Mr. REID. Madam President, will the Senator yield for a question?
Mr. DURBIN. I yield to the Senator for Nevada, without yielding the
floor.
Mr. REID. Madam President, I say to my friend from Illinois, in
relation to the amendment that is pending, I asked the White House by
letter to give me the breakdown of the cost of all of these trips they
take around the country campaigning for people. Who pays for that? Is
it paid for by the taxpayers of this country? Is it paid for by the
Republican National Committee? The President is a rich man. Does he pay
for it personally?
It has been months and I have had no response. I think I am entitled
to an answer to that most important question. People are concerned
about that. The President goes to his ranch, he goes off on day trips
campaigning only.
Would the Senator agree with me that that is the direction of this
amendment, and that I am entitled, as a Member of the Senate, to an
answer to the question as to who is paying for these junkets around the
country?
Mr. DURBIN. Reclaiming my time, I say to the Senator from Nevada that
is a perfect illustration as to why the Stabenow amendment should be
enacted, because what Senator Stabenow is trying to achieve is the
right of the Senator from Nevada and any Senator, Democrat or
Republican, to ask legitimate questions about the expenditure of public
funds. If we decide that is going too far and perhaps inconveniencing
the administration by forcing them to be held accountable, then we
might as well pack up and go home.
As they say, if we are here in order to total up years for
retirement, it is a pretty easy job; but if we want to come here and go
to work to try to achieve good for this country and make certain that
people who are misusing public resources are, in fact, held accountable
for it, then it is hard work.
Mr. REID. Will the Senator yield for another question?
Mr. DURBIN. I would be happy to yield to the Senator from Nevada.
Mr. REID. How many people live in the State of Illinois?
Mr. DURBIN. About 12\1/2\ million.
Mr. REID. I say to the Senator from Illinois, I spoke through the
Chair to the distinguished junior Senator from Michigan about the State
of Michigan. There are 9 million people in Michigan, two Democratic
Senators. Under the rule that we have just learned about that the White
House is not going to answer questions of Democrats, 9 million people
who live in the State of Michigan in effect cannot have their Senators
asking questions of the White House.
The Senator from Illinois, who represents 12\1/2\ million people,
there is a Democratic Senator and a Republican Senator who has
announced his retirement, who is not going to run for reelection--the
Senator who has announced his retirement and in effect is a lame duck,
fine man that he is, can have his questions answered, but the Senator
who was just reelected representing 12\1/2\ million people cannot have
his questions answered. Does that seem fair?
Mr. DURBIN. I say to the Senator from Nevada, it not only does not
seem fair, it raises another question in my mind. Why would we on the
Democratic side of the aisle approve any executive appointment of
someone who is going in the executive branch and from that point
forward will never speak to us again? Now, if we are being asked by
this administration to approve people to hold offices within this
administration who have not answered all the questions in committee and
having been approved on the Senate floor will from that point forward
never communicate with us again, then, frankly, I think we are derelict
in our responsibility.
So I say to the administration, think this through. If they are
saying that the people we appoint in the Senate are not going to answer
the questions propounded by Democratic Senators, then, frankly, I think
it is untoward of them to suggest that we should just approve all of
these appointments.
I think it is fair game for the President to fill vacancies, and I
have supported the overwhelming majority of the President's requests.
But if the policy is once approved by the Senate, these executive
appointments, these people working in these agencies, will refuse to
take telephone calls or answer letters of inquiry from Members of the
Senate, refuse to be held accountable for their actions as public
officials, then I think we are derelict in
[[Page S14241]]
our responsibility to the people we represent.
Mr. LEAHY. Will the Senator from Illinois yield for a question
without losing his right to the floor?
Mr. DURBIN. I would be happy to yield to the Senator from Vermont.
Mr. LEAHY. Madam President, I ask my friend from Illinois, who serves
with me on the Appropriations Committee--who served on a number of
committees in the other body before he was in the Senate--who has as
much knowledge of procedure as anyone having served in the other body
and served in this body, it has been my experience in over a quarter of
a century on
the Appropriations Committee, through
six administrations--President Ford, President Carter, President
Reagan, former President Bush, President Clinton--that both Republicans
and Democrats were able to ask questions and expect answers from the
executive branch.
Further, it was my experience that throughout all of these
administrations, Republican and Democratic alike, there was not a
restriction made because we were required to ask these questions. Is
that the experience of the distinguished Senator from Illinois? Has the
Senator had the same experience in both bodies--I am speaking now of
appropriations but, of course, a lot of other committees are involved--
if we asked questions about where the money went, we received the
answers irrespective of whether one was a Republican or Democratic?
Mr. DURBIN. In reply, I say the Senator from Vermont is absolutely
correct. Allow me to use another illustration. Just last weekend, there
was the downing of the Chinook helicopter in Iraq with 15 of our
soldiers killed initially and another soldier who has died just last
night, I understand, so 16 soldiers died and 20 more were seriously
injured. The pilot of that helicopter was from my home State. It was a
National Guard helicopter.
After that occurred, unsolicited I received communications from
reliable military sources that suggested that the Guard helicopters in
activated units were not adequately equipped and prepared to deal with
shoulder-fired missiles. This is as serious a question as can be given
to any Member of the Senate. Naturally, the families--the servicemen
first and their families--wanted to know the answer. So what I did was
to write a letter directly to the Secretary of Defense, Donald
Rumsfeld, saying please look into this immediately; see if the National
Guard units that have been activated are sufficiently protected with
equipment.
During the course of asking this question, more communications came
my way. Now we have received a lot of communications suggesting that
families all around Illinois, and even around the country, are telling
us about deficiencies in the equipment available to our servicemen in
Iraq and Afghanistan, and particularly to activated guardsmen and
reserves.
Consider that just yesterday, the President signed an $87 billion
appropriation for the effort in Iraq and Afghanistan which, as I
understand it, about $67 billion was for our men and women in uniform,
which I supported. As much as I disagree with the President's foreign
policy, I am not going to shortchange our men and women in uniform for
the resources they need to be successful in their mission and come home
safely.
Having done that, having given the appropriation to the
administration, now we have families and servicemen coming to me, as
the Senator from Illinois, saying they do not think the money is being
spent properly. I have a responsibility to their families and to my
State to ask the hard questions of the administration. Are you doing
all that you can to protect our servicemen? Frankly, I think that is
why I was elected. If I am not given a chance to even ask that question
or to have my inquiry answered, what, then, can I say to these families
or to these servicemen who believe that I am their elected
representative and have that responsibility?
Senator Stabenow, in her amendment, says this new policy of the
administration, of refusing to answer letters from Democratic Senators
and Democratic Congressmen, takes away from the voice of those families
and those servicemen and people across the United States who rely on us
to stand up and hold any administration accountable, whether it is
Democratic or Republican.
I think, honestly, her amendment goes to the heart of why we are here
doing business in the Chamber of the Senate. I support her very
strongly. I urge my Republican colleagues who have been very loyal to
their President, and that is understandable and admirable, to think
long and hard about this policy. Things change in this town. The tide
of politics can hit the shore and go back out to sea and come back
again. You never know, a year, 2 years, 3 years from now, whether or
not policies taken by this administration establish a precedent which
is not healthy for our constitutional democracy. Certainly this
decision by the administration to turn down inquiries and letters of
request on matters as basic as the protection of our men and women in
uniform and whether or not our helicopters are adequately protected--
their decision as a policy basis, which I understand has been included
in an e-mail and sent across the administration--raises some important
questions.
I see the ranking member of the Senate Budget Committee, Senator
Conrad, has taken the floor. Again, he is a perfect illustration of why
this new policy of the administration, refusing to answer inquiries
from Democratic Senators about their spending policies and taxing
policies, make it impossible for him to do his job on the Budget
Committee to make certain that every administration is held
accountable.
I am going to yield the floor and say to my friend and colleague from
Michigan, thank you for bringing this issue up. This is not just a
morning newspaper article. This is a serious constitutional question. I
hope some of my colleagues on the Republican side of the aisle, after
first reacting they want to stand by their administration, will think
long and hard if this is a policy we in America should be asked to live
with, when future Congresses and future Presidents are elected and we
are all told we are trying to share a responsibility of accountability
across our Government.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. Madam President, I ask to speak as if in morning
business for no longer than 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Lautenberg are printed in today's Record under
``Morning Business.'')
Mr. LAUTENBERG. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CONRAD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CONRAD. Mr. President, less than 6 months ago, we enacted the
Jobs and Growth Tax Relief Reconciliation Act which contained $20
billion in temporary State fiscal relief. Yet before us is legislation
that may effectively take back a significant portion of that much-
needed relief for States. In my earlier career, I was tax commissioner
in the State of North Dakota. My successor, a Republican, a man who
currently holds the office, was in my office just a couple of weeks ago
explaining the impact of the committee bill on our State. He estimated
this bill would cost our State $20 million. That may not be a lot of
money in Washington. I can tell you that is a lot of money in North
Dakota. That is $20 million we would be taking away from the State of
North Dakota they have every right to collect.
Let me make absolutely clear that I am not for taxing access to the
Internet. I am not for that. I have supported the moratorium. I will
continue to support the moratorium. But as Senator Dorgan made clear on
the floor this morning, definitions do matter. Unfortunately, the bill
out of the committee has left a lot of open questions. Lawyers looking
at it are telling us it would restrict the States far beyond a simple
extension of the moratorium. I do not believe that is the intention of
the Congress. I certainly hope it is not the intention of the committee
to go
[[Page S14242]]
beyond the definition of access we agreed to in 1998 and reaffirmed in
2001 in a way that would preempt States' abilities to levy taxes as its
elected representatives see fit.
On the floor of the Senate, we have seen a bipartisan effort to make
certain what we do here is what we really mean. I have been very
interested to see four distinguished former Governors--Senator
Alexander, Senator Voinovich, Senator Carper, and Senator Graham, who
are among our most respected colleagues on issues such as these, and
all of them served successfully as Governors--warning Members of
Congress the legislation before us has unintended consequences. I hope
we listen carefully to our colleagues, Senator Alexander, Senator
Voinovich, Senator Carper, and Senator Graham, and that we pause and
get this right.
We should not tax access to the Internet. That would inhibit its
economic potential. It would reduce opportunity in our society. But at
the same time we shouldn't be going beyond that principle and that
concept in restricting the States' rights to levy taxes that are
reasonable and appropriate. That is not the appropriate role of the
Federal Government.
I hope very much we will take a few moments and get this right so
that this is not a rush to judgment and we not impose on hard-pressed
States. We already know there is some $90 billion of shortfall by the
States all across the country. The last thing they need is the Federal
Government to come in here and take away legitimate sources of revenue
from them. That makes no sense.
I hope my colleagues are going to be sufficiently patient and that we
get this right. As Senator Dorgan said--again, I want to emphasize--
earlier on the floor, definitions matter. I heard Senator McCain say
the same thing last night; that it is important to get these concepts
right, to get them carefully defined so we are not doing something
other than what we really intend to do, which is to provide a
continuing moratorium on the taxation for Internet access.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. Madam President, I ask unanimous consent to speak in
morning business for 10 minutes. I understand we have a lull on the
Internet tax bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Allard are printed in today's Record under
``Morning Business.'')
Mr. ALLARD. I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, I ask my friend from North Dakota--this
is on the Stabenow amendment--we would like to have a couple-word
change. If he would look at the amendment where it says, in the last
paragraph, ``The White House and all Executive Branch agencies should
respond promptly and completely to all requests by Members of
Congress,'' that between ``all'' and ``requests,'' if we could add the
two words ``constitutionally appropriate.'' Would that be agreeable to
him, so it would read: ``completely to all constitutionally appropriate
requests by Members of Congress''?
I assume that most Members of Congress would not make
unconstitutionally appropriate requests, but that seems to be
perfecting language that some of my friends would like to have added.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I say to the Senator from Arizona, this is
not my amendment, so I would have to consult with the author of the
amendment.
As you know, the amendment is prompted by a news story today from the
White House suggesting they will not be answering inquiries except by
certain Members of Congress. So that prompted her to offer this
amendment.
I will certainly consult with--she is on the Senate floor, so perhaps
we can ask her directly.
Mr. McCAIN. Madam President, do I still have the floor?
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I ask unanimous consent to ask a
question of the Senator from Michigan.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, I ask the Senator from Michigan if she
would be agreeable to a two-word addition in the last paragraph, that
between the words ``all'' and ``requests'' the words ``constitutionally
appropriate'' be added. I wonder if that would be agreeable to her. If
it is not agreeable to her, I will not propose the amendment.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Madam President, the only question I have is the word
``appropriate.'' We certainly want this to be within constitutional
parameters. I would say, at this point, the question I would have would
be about ``appropriate.'' Who decides what is ``appropriate,'' given
the judgments the administration is making? Possibly we can work
together to find something else other than that word. But at this point
that would be my concern.
Mr. McCAIN. I thank the Senator and yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Madam President, will the Senator from Michigan allow me to
ask a question?
Ms. STABENOW. Certainly.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. This amendment is offered by the Senator from Michigan, and
it never took into consideration doing anything that was
unconstitutional?
Ms. STABENOW. That is correct.
Mr. REID. Everything the Senator does is within the framework of the
Constitution. So I would hope that the matter could be disposed of as
written because it goes without saying that we want this to be
constitutional. We would never try to do anything that would be outside
the parameters of the Constitution.
So I hope this amendment could be accepted. It appears to me it
should be done by voice. If that is not the case, I know that a number
of other people have more to talk about on this amendment. So I would
hope the majority would make a decision quite soon as to what is to be
done with this amendment.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Nevada has the floor.
Mr. REID. I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Madam President, I mentioned that the event that has
prompted this amendment, I understand, was in the newspaper this
morning. It was apparently a report that the White House would limit
their responses to questions from Members of Congress.
I, at one point, chaired the appropriations subcommittee here in the
Senate that actually funds the operations of the White House. We always
work very closely with the White House. When they request the necessary
funding, we provide it. We never have any difficulty. The same is true
with respect to the agencies. We fund all of the agencies of the
executive branch. We spend a great deal of money in doing that. We work
together to find the appropriate number and the appropriate amount of
resources that are needed.
The White House is a little different. When they make the request, we
fund the request. That is the way we deal with the White House.
But with the executive agencies, of course, we have disagreements and
differences from time to time, but we end up sending billions and
billions--hundreds of billions--of dollars for expenditures through
these agencies. If ever--if ever--the Members of the Congress are
prevented from asking questions about how the money is used, how the
money is spent, then there is something fundamentally broken.
So I was as surprised as my colleague from Michigan to read the story
in the newspaper this morning. I know it is nettlesome, I know it is a
pain, it is a bur under the saddle to get questions from Members of
Congress if you are a member of the executive branch.
At one point, I was a member of the executive branch in State
government,
[[Page S14243]]
and all the State legislators were always peppering us with questions.
Sure, that is a nuisance. Nobody likes that. But the fact is, the
congressional actions here determine how much money is made available.
The same is true in the State legislatures. They have every right--in
fact, they have a responsibility--to the taxpayer to try to determine
how that money is spent. If they have questions about it, they ask
those questions. If they ask those questions, they darn well expect an
answer, even if it is considered a nuisance by those who are receiving
the questions.
So my hope is they will just accept this amendment at some point
today. I understand what has prompted the amendment.
Let me just, for a moment, talk about the underlying proposition
before the Senate; that is, the bill that is brought to the floor
today, the moratorium on Internet taxation. I want to see us pass a
piece of legislation. I do not think it is satisfactory to have the
moratorium expire on November 1, and then to just let that be the word.
That is not where I would like to see this end up.
So we have a bill on the floor that came from the Commerce Committee.
That legislation passed the Commerce Committee unanimously, but it was
not quite the way it seemed when you take a look at that vote because
we also agreed that the definition of that Internet tax moratorium was
faulty or at least not agreed to, and we would work on it coming to the
floor of the Senate.
We have not yet reached a compromise. That definition is the key. It
is the linchpin to this legislation. So we have to find a way to
resolve that. We thought this morning perhaps there was a way to do
that. That appears not to be the case. I think we still have some
distance between the various thoughts about how one would craft this in
a way that is helpful to not retard and not injure the buildout of the
infrastructure for the Internet and, at the same time, be fair to State
and local governments with respect to their revenue base and not be
preempting the opportunity they need and they would have, as they have
always had, to tax certain services. So we continue to try to talk and
see if we can find a way to reach some kind of agreement on this
definition.
Now, I want to make an additional point because I think it is
important to continue to make this point even as we work on these
issues. We have this issue on the Senate floor today. I understand why
that is the case, because this issue had a November 1 deadline by which
the moratorium on Internet taxation expired.
We have a responsibility to try to see if we can pass this
legislation. So there was a deadline with respect to this legislation.
But there was a deadline on appropriations bills as well. That
deadline was October 1. It is now November. We still have
appropriations bills that have not been considered in the Senate.
Yesterday there was great urgency about an appropriations bill.
Everybody cooperated to try to get that done. We are told today there
is great urgency about legislation. We are told that the majority
leader wants the Congress to work on Veterans Day and so on.
Then we are told, despite the fact that there is this urgency to get
appropriations bills done and they request cooperation, that beginning
next Wednesday we will spend 30 hours so that the majority can talk
about the four judges they have not been able to get confirmed.
It seems to me perhaps we should talk about the 168 judges we have
confirmed. If we are going to take time in the middle of next week,
after having worked on Veterans Day, because we believe there is such
an urgency--and I believe there is an urgency with appropriations
bills; we should get them done--if we are going to take 30 hours in the
middle of the week in order to try to convince the American people that
the Congress is not moving forward on judgeship nominations, and they
are going to take 30 hours to talk about four judges who didn't get
confirmed by the Senate, I think perhaps then we need to take much more
time to talk about the 168 judges we did confirm.
I am a little miffed at having these talk shows and others get all
their talking points about how the Senate is stalling on judgeships. We
are not stalling on judgeships. Most all of the Federal judges who have
been nominated by this President have been confirmed by this Senate.
We have an advise and consent responsibility. The Constitution does
not say the President has a right to pick somebody and say to that
person: For the rest of your life you will be a Federal judge.
That is not the way the Framers of the Constitution described it.
This described a dual role. The President shall nominate; the U.S.
Senate shall confirm--advise and consent. Even George Washington ran
into some tough sledding. Even George Washington lost a Federal judge
in the Senate because they wouldn't confirm one of George Washington's
judgeship appointments or nominations. So it started with George
Washington.
But when you talk about cooperation, this Senate has provided
extraordinary cooperation with this President. We have confirmed 168
judges. We have tried in every way possible to be cooperative. We have
the lowest vacancy rate in 15 years on the Federal bench. Why? Because
this Senate has worked with the President to confirm 168 judges.
I understand my colleague wishes me to yield. I do so without losing
my right to the floor.
The PRESIDING OFFICER (Mr. Allard). The Senator from Arizona.
Mr. McCAIN. Mr. President, if my colleague would allow me to speak
for 5 minutes in morning business about an important issue to me.
Mr. DORGAN. Providing that I am recognized at the conclusion of the
remarks of the Senator from Arizona.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. McCAIN are located in today's Record under
``Morning Business.'')
The PRESIDING OFFICER. The Senator from North Dakota is recognized.
Mr. BROWNBACK. Mr. President, will the Senator from North Dakota
yield for a question?
Mr. DORGAN. Mr. President, I yield to the Senator from Kansas for a
question.
Mr. BROWNBACK. Mr. President, if I can ask for permission to speak up
to 3 minutes on a personal tribute in morning business and that the
floor not be lost to the Senator from North Dakota.
Mr. DORGAN. I will agree, provided I am recognized following the
presentation.
The PRESIDING OFFICER. The Senator from Kansas is recognized.
(The remarks of Mr. Brownback are printed in today's Record under
``Morning Business.'')
The PRESIDING OFFICER. The Senator from North Dakota is recognized.
Mr. DORGAN. Mr. President, I know my colleague from West Virginia is
preparing to speak. I will not be long. I will make a couple of
comments to finish what I was discussing about next week's schedule.
It is true the minority party in the Senate does not schedule the
Senate; the majority party does and the majority leader does. This
Senate is 51 to 49. Some pretend it is 100 to zero. In the
circumstances, for example, with the energy conference, I am a
Democratic conferee, and we have been disinvited and not allowed to
attend any of the conferences with respect to the Energy bill. That is
the wrong way, in my judgment, to do business in the Senate. It
pretends as if one-half of the Senate doesn't exist when you do that.
Having said all that, I understand we don't schedule the Senate; the
majority leader does. We find ourselves now in the first week in
November, with a number of very important appropriations bills not yet
completed, with stories earlier in this week that the majority may well
want to put unfinished appropriations bills in another appropriations
conference and create an omnibus bill, and bring it to the Senate as a
conference report so Members of the Senate would be prevented from
offering any amendments to the legislation.
Well, that is not acceptable; it is not the way to do business. I
don't know whether that is what is being planned. I can only tell you
that is what I read early this week, as described by some majority
party aides, I guess they are called.
In addition to the urgency of getting appropriations bills completed,
we are
[[Page S14244]]
now told next week's schedule will include 30 hours of debate on
judges. Actually, there won't be any business before the Senate to
debate; it will just be an opportunity for the majority party to
ruminate for 30 hours about how unfair it has been that 4 nominees have
not been approved by the Senate--4. Mr. President, 168 judicial
nominees sent to us by the President have been confirmed by the Senate,
and 4 have not been. Yet you would be led to believe by all of the
information spewed out of this Chamber, from all of the political vents
that exist here, that somehow the Senate has just been unwilling to
approve judgeships.
We have the lowest vacancy rate on the Federal bench in 15 years.
Why? Because this Senate has been cooperative with this President with
respect to judgeships. He has nominated and we have confirmed 168. If
next week they want to spend time, in a moment when it is urgent to
finish our work on appropriations bills, instead to talk about the 4
judges who were not confirmed by the Senate, I want to come to spend
some time talking about the 168 judges, including 2 from my State, both
Republicans, both of whom I supported and was pleased to do so--I want
to talk about the 168 judges we did confirm. I want the American people
to understand what our record is with judges.
My colleague from West Virginia knows about the Constitution, perhaps
more than anyone in this Chamber. He has studied it, he has lived it,
and he carries it in his pocket every day. His copy of the Constitution
is one I enjoy seeing when he pulls it out of his pocket during debate
on the floor of the Senate, because he describes it in vivid detail and
gives life to this fabric of American Government. The Constitution does
not say the President has a right to put a man or woman on the Federal
bench for the rest of their lives. That is not what the Constitution
says. The Constitution says we will provide lifetime appointments to
the judiciary in the following manner: The President shall nominate,
and the Senate shall give its advice and consent. So there are two
steps: The President shall nominate and the Senate shall decide yes or
no.
There are circumstances where a President might say: I want to put
someone on a very important Federal bench who is way outside the norm
in terms of behavior, thought, or experience, or whatever; and the
Senate has a right to say in that circumstance we are sorry, that is a
person we are simply not going to confirm, Mr. President.
That is not terribly unusual. George Washington failed to get one of
his nominees confirmed--America's first President. So it is not unusual
for the Senate to say, no, this is not a candidate we agree should be
put on the Federal bench for a lifetime.
In most cases, the President has sent us nominees we are satisfied
with, and 168 of them have been approved; 4 have not been. In the
middle of this time, when time is so critical and the appropriations
bills are so urgently needed to be completed, the majority wants to
ruminate and vent for 30 hours in the middle of next week about the 4
who have not been approved.
I say, as my colleague from Nevada has, I make no excuses for
deciding not to support the nomination of Mr. Estrada. I make no
excuses for that. Mr. Estrada wouldn't answer the questions when asked
by the Senate Judiciary Committee. How do I know that? Because the same
day that he was a witness before that committee, the same day his
nomination was considered by that committee, a nominee for a judgeship
in North Dakota was there before the committee. That candidate from
North Dakota, whom I supported--and, incidentally, is a Republican--is
a fine judge. I was pleased to support him. He answered the very
questions put to him by that committee that Mr. Estrada refused to
answer.
Mr. Estrada refused to answer questions. He and the administration
refused to release information that was requested. I have no reason to
make any excuses for deciding to vote against Mr. Estrada. I wouldn't
have voted for him and didn't vote for him. I am not apologetic about
that.
If next week in the middle of all of this urgency we are going to
take 30 hours and decide just to have the majority party ventilate
about the four who did not get approved by the Senate, then I say--my
colleague from Nevada is here--I would like to be part of a process
that talks about the 168 Federal judges we did approve, all Republican
incidentally--168 of them we did approve. We will get some pictures and
get their story. I will talk about a few of them. I hope my colleagues
will as well because the American people need to understand the story,
and the story is not of the four who didn't get approved by the Senate.
The story is the lowest vacancy rate in 15 years on the Federal bench
because the Senate has moved forward on judgeships and because we have
confirmed judges sent to us by this President and because we have
succeeded in that effort. That is the story next week. If we are going
to have 30 hours for the other side to ventilate about the 4 who didn't
make it, I want 60 hours to talk about the 168 we did confirm.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, I wish to take a couple of moments to
do a few items cleared on both sides.
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