Congressional Record, Volume 156 Issue 110 (Monday, July 26, 2010)

[Congressional Record Volume 156, Number 110 (Monday, July 26, 2010)]
[Senate]
[Pages S6230-S6239]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

DISCLOSE ACT--MOTION TO PROCEED

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 3628, which the
clerk will report.
The legislative clerk read as follows:

Motion to proceed to Calendar No. 476, S. 3628, a bill to
amend the Federal Election Campaign Act of 1971 to prohibit
foreign influence in Federal elections, to prohibit
government contractors from making expenditures with respect
to such elections, and to establish additional disclosure
requirements with respect to spending in such elections, and
for other purposes.

Mr. SCHUMER. Mr. President, I rise today in strong support of S.
3628, the Democracy Is Strengthened by Casting Light on Spending in
Elections Act, otherwise known as the DISCLOSE Act. I urge my
colleagues to support the motion to proceed to a debate on this
critical legislation tomorrow at 2:45.
We must not forget why we are here today. In Citizens United v. FEC,
the Supreme Court narrowly overruled almost a century of law and
precedent and held that corporations have the same first amendment
rights as people and therefore can spend freely on elections from their
treasuries. The Court also opened the door to new kinds of campaign
spending by labor unions and certain nonprofit organizations.
At a time when the public's fears about the influence of special
interests were already high, that decision stacked the deck even more
against the average American. As a result, we are faced with a new
reality in our democracy: unlimited amounts of cash can now flow into
our Federal elections anonymously and with no accountability.
Voting is the bedrock of our democracy. Elections provide the voters
a loudspeaker through which they can make their opinions heard.
Allowing special interest money to pour into elections unchecked and
undisclosed will drown out the voices of the voters. But the Supreme
Court decision did leave us one narrow opportunity to make an impact on
this new era in campaign spending.
In Citizens United, eight of the nine Justices agreed that disclosure
of campaign expenditures is constitutional and in the public's
interest. The Court held that disclosure requirements ``do not prevent
anyone from speaking'' and serve governmental interests in ``providing
the electorate with information'' about the sources of money spent to
influence elections so that voters can ``make informed choices in the
political marketplace.''
By working within the contours of the Court's majority opinion, we
have crafted this bill around new disclosure requirements designed to
shine a bright light on those who would operate in the shadows. This
legislation will follow the money. In cases where corporations or other
special interests try to mask their activities through shadow groups,
the legislation drills down so that the ultimate funder of the
expenditure is disclosed. No more Citizens for Good Government, or
People for Democracy--and the ads are nasty and tawdry, but we never
know who they are from.
This legislation requires the sponsors of ads to file regular reports
with the Federal Election Commission detailing their political
expenditures and the source of the donations they received to fund
them.
This legislation enhances disclaimer provisions so the public is
aware that it is not a candidate or a political party speaking but a
special interest or a corporation. We require CEOs and heads of special
interest groups to identify themselves in their advertising. Candidates
for Federal office already have to stand by their ads. There is no
reason that corporations and special interests should not have to
identify themselves as well.

[[Page S6231]]

The bill also prohibits entities that receive taxpayer money--such as
large government contractors or corporations that received Federal
rescue funds--from turning around and spending that money to influence
elections. The bill also bans foreign-controlled corporations from
spending in our elections.
As Justice Stevens noted in his dissent, Citizens United allows
foreign-controlled interests to participate in American elections now
simply by using their domestic-based entities. We need to prevent that
from happening, and the DISCLOSE Act does just that.
If not for the DISCLOSE Act, by the way, foreign companies, foreign
corporations, foreign entities could participate in our elections. They
could put themselves up under the name of ``Americans for Good
Government'' and no one would even know. Let's be clear, current law
bans foreigners, foreign corporations, foreign unions from
participating in our elections, but under the complex nature of
corporate law, we have domestic entities that would no longer fit into
this ban by current law but which are controlled by foreign interests
or even hostile foreign governments. We cannot allow BP, CITGO, or
Chinese sovereign wealth funds to influence our elections, particularly
under a name that would not show it was them. We need to close this
loophole now, and that is what the DISCLOSE Act does.
Let me turn to what the bill does not do. There has been a strong
argument from the hard right, desperate to see that this bill not pass;
that this is an infringement on free speech. That is absurd. Claiming
that disclosure is tantamount to muzzling free speech is nothing more
than a scare tactic from special interests that do not want the public
to know what they are doing.
If you have the courage of your convictions, you should say who you
are, plain and simple. Democrats and Republicans alike have long
defended disclosure campaign expenditures as both appropriate and
constitutional. The minority leader has talked about disclosure as a
substitute for campaign finance reform. And in this bill, we are
working well within the free speech guarantees of the first amendment
in our strengthening of disclosures and disclaimers on campaign ads.
Second, this bill does not circumvent the Supreme Court. While I
believe the Court's ruling was an activist overreach, this legislation
clearly does not. The main purpose of the DISCLOSE Act is to provide
the American public with information on who is speaking when political
advertising and expenditures are made. Its purpose is not to circumvent
or overturn the Court's decision by imposing a backdoor ban on special
interest spending.
Recently, the Supreme Court, in another case, Doe v. Reed, again
upheld disclosure as constitutional under the first amendment, with the
support of eight Justices, which means a whole number of conservative
judges had to support that idea.
This bill does not treat corporations and labor unions, along with
trade associations and most other organizations, differently. Last
month, we all know the House passed its version of the DISCLOSE Act. We
have made changes to the House bill that I believe make it more
evenhanded while sticking to the central goal of bringing transparency
and public disclosure to the new kind of election spending the Supreme
Court approved. For example, the House bill received criticism for
allowing organizations that collect dues to avoid disclosing transfers
of funds they make to their affiliates. This was criticized, fairly or
unfairly, as a union carve-out. So we eliminated this exemption in the
Senate bill. Another exemption was made for transfers between separate
organizations if the funds could not be traced to an individual donor.
We removed this exemption as well. So anyone who votes against this
bill under the guise that it treats labor and corporations differently
has not read the bill. We have kept this bill balanced and evenhanded.
The changes made a strong bill even stronger.
To recap, the bill does not chill speech. It does not impose a
backdoor ban on corporate spending. It does not treat labor unions
differently from corporations. What this bill does do is listen to the
American people, and 8 in 10 American voters, Democrats, Republicans,
and Independents, overwhelmingly disapprove of the Supreme Court's
opinion in Citizens United and overwhelmingly support what we are doing
here today. And there is good reason why. The public does not want to
be deceived by advertising from anonymous funders. The public does not
want foreign-controlled interests taking over our elections. And the
public does not want their tax dollars being used by large Federal
corporations to influence elections.
Already, the Citizens United decision has given rise to a cottage
industry of swift boat-style shadow groups, groups that do not make
democracy proud. Karl Rove admitted this month that his new 527, dubbed
``American Crossroads,'' was born out of a loophole created by the
Citizens United decision. He bragged that his group will flood the 2010
elections with $52 million worth of ads bankrolled anonymously by
special interests. Other shadow groups like Rove's are planning similar
levels of activity. All together, these groups could account for $300
million in political spending this fall alone. The Supreme Court,
unfortunately, opened the door to these anonymous donations. We must
act now to close the door before faceless groups are allowed to spend
unlimited sums without any accountability or transparency. The voters
deserve to know the source of this spending.
My prediction--sad but I really believe true--is that if we do not
close this loophole, the roots of our democracy will get more and more
corroded, endangering the whole vital tree, the oak of democracy
itself. It is hard to believe that we are now saying that a company, a
group, that has multimillions of dollars can spend that money against a
particular candidate, say whatever it wants, whether it is true or
false, and not be held to any accountability whatsoever. What has
become of our democracy?
The Supreme Court made the wrong decision. I still can't understand
why they did it. But we have an opportunity here--not as Democrats or
Republicans but as Americans--to rectify, at least modify within the
Constitution and at least require disclosure because we all know
disclosure will not chill speech but it will make sure that those who
wish to launch millions of dollars of nasty and perhaps untruthful ads
against a candidate they don't like will at least have to say their
name. What could be wrong with that?
The Senate will vote tomorrow afternoon to invoke cloture on the
motion to proceed to the consideration of the DISCLOSE Act. I urge my
colleagues to allow us to move to a debate on this crucial legislation.
We have a clear choice tomorrow: We can vote to debate how to make our
elections more open and transparent or we can bow to special interests
that seek to influence our elections behind closed doors. It is time
for us to have that debate. Our democracy cannot afford a filibuster of
transparency and disclosure in its elections. Let's be clear: If we
fail to act now, the winner of November's elections will not be
Democrats or Republicans; it will be special interests.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Ethanol

Mr. GRASSLEY. Mr. President, last week there was a news conference by
a group of outside people who attacked ethanol, and then the senior
Senator from Arizona gave a speech on that subject last week. I told
the senior Senator that I was going to have something to say about
ethanol this week; I didn't tell the news conference people that I was.
So it seems to be that time of year once again. Without fail, every few
months or so, we have big oil on the one hand and big food interest
groups on the other hand start a misinformation campaign in an effort
to denigrate the U.S. biofuels producers. In other words, they are
attacking renewable fuels.
Last week, almost as if on cue, a group opposed to domestic efforts
to reduce our dependence on foreign oil began their usual song and
dance. A

[[Page S6232]]

press conference led by the Grocery Manufacturers Association and other
special interest groups was held to malign the benefits of homegrown
renewable fuels. Don't forget that this is the same group of folks who,
a few years ago, waged a high-priced, inside-the-beltway smear campaign
against ethanol for allegedly leading to higher food prices. At that
time, the price of corn was going up because there was speculation in
commodities, the price of oil was going up, and so the grocery
manufacturers decided: We have to have an excuse to increase the price
of food--20 percent, roughly. Well, you know what, the price of grain
came down, but the price of food has not come down. So I think it was
simply a diversionary tactic to get away with what they maybe would not
have gotten away with with the consumers.
Well, I think 2 years ago, maybe 3 years ago, that myth was roundly
dispelled, but I want to keep reminding people that there was that
campaign out there. Economists proved what Iowa farmers and our
Nation's farmers knew to be true: The higher cost of corn was
responsible for just a tiny fraction of the increase in food prices. So
while food manufacturers wanted consumers to believe that corn ethanol
was doubling or tripling their grocery prices, nonbiased observers knew
that the corn input costs were just pennies of the retail price of
food.
However, with dozens of multibillion-dollar corporations and profits
to protect, it is not surprising to see this group--or maybe I better
say these groups--attack our country's farmers and ranchers, who are
working to produce our Nation's food, our Nation's feed, our Nation's
fiber, and now, with renewable fuels, producing fuel that you and I
burn in our car tanks almost daily. And farmers can do that. They can
do all of that. They are doing it right now. This year, we will have
the largest corn crop this country has ever produced, and doing it on 3
million less acres of cropland.
So these same groups are at it again. They see new opportunities to
undermine our domestic biofuels industry, and they have a bottom line
to look out for and pockets to line. They are now arguing that our
Nation cannot afford government policies to foster the growth of
renewable energy. In other words, they are arguing that the cost of
energy independence is too high and we cannot afford it. They would
prefer that we increase our reliance on fossil fuels and imported crude
oil. The unfortunate outcome of such attacks, however, is that less
informed individuals begin to believe this misinformation. So it is
time that we review the true cost of imported fossil fuels.
In 2008, Americans sent over $450 billion to foreign countries to
satisfy our demand for oil. At $80 a barrel--and I suppose oil is, I
think, roughly $75 now, but if it is $80 a barrel, we will send nearly
$350 billion overseas, out of this country, this year for oil.
We rely on foreign oil to meet 60 percent of our oil demand. But do
not forget, much of the world's oil reserves are located in the
volatile and very unpredictable Middle East.
According to the Energy Information Administration, oil price shocks
and price manipulation by the Organization of Petroleum Exporting
Countries cost our economy about $1.9 trillion between 2004 and 2008.
Our dependence on imported oil accounts for about one-half of our
trade deficit--one commodity--a very important commodity for us, but it
accounts for one-half of our trade deficit.
The Federal Government's support for homegrown ethanol equals less
than 2 percent--just less than 2 percent of the money we will send to
Canada, Saudi Arabia, Mexico, Venezuela, Nigeria, and other countries
where we import oil.
The domestic ethanol industry supports 400,000 green jobs in the
United States. Last year, ethanol contributed over $50 billion to our
gross domestic product. It contributed $8.4 billion in tax revenue to
the Federal Government. The incentives we provide for ethanol
production lead to a surplus of tax revenue for the Federal Treasury.
So which is the better bargain--being dependent on foreign countries
for 60 percent of our energy needs at a cost of $350 billion or keeping
this money at home, creating green jobs and increasing our national and
economic security? I believe the choice is very obvious.
Up to this point, I have only considered the economic cost. There are
other costs. I will put up a chart with one of the environmental costs.
This chart depicts a small example of the environmental cost of our
dependence upon foreign oil. The first photo, the lower photo, is the
one we are all too familiar with, the explosion and the ensuing
oilspill at BP's Deepwater Horizon oil rig. The other photo might look
like Mars or the Moon, but it depicts land in Canada where oil is being
extracted from tar sands. The fact is, fossil fuels are getting more
expensive to extract and are likely to come at greater environmental
cost. That is the negative aspect, environmentally, beyond the economic
issues I have discussed.
We have an alternative. That alternative, which the next chart shows,
is homegrown, renewable biofuels. The chart shows the cornfield on the
left, and where we go to the gasoline station to get the renewable
fuels to power the car on the right. Today, ethanol accounts for 10
percent of our transportation fuels. No other fuel alternative comes
close to ethanol's contribution to a clean environment and less
dependence on foreign energy and less dependence upon fossil fuels.
Domestically produced ethanol contributes more to the fuel supply than
all imports except Canada. More ethanol means less greenhouse gas
emissions. A University of Nebraska study found that ethanol reduces
direct greenhouse gas emissions by 48 to 59 percent compared to
gasoline. Ethanol production continues to improve, and increasing crop
yields means we are producing more fuel from less grain on fewer acres.
Let me repeat something I said earlier: Probably 13 billion bushels
of corn, the largest crop ever produced in the United States, and we
have 3 million less acres in crop production this year compared to a
year ago. Ethanol producers are reducing energy and water usage. So the
production of ethanol is becoming more efficient.
Finally, it is important we consider the national security cost of
our dependence upon foreign oil. I will put up a chart about the Middle
East. The Middle East accounts for 20 percent of U.S. oil imports; 17
billion barrels of oil are shipped each day through the single most
important shipping chokepoint; that is, the Straits of Hormuz out of
the Persian Gulf. In fact, the military people say that is one of the
serious problems in dealing with Iran, if they decided to sink ships
there, what they could do economically to the rest of the world and
what they could do national security wise to the rest of the world.
They have threatened that. They have never done it, probably because
their livelihood depends on it as much as the rest of the world. But it
is still one of those chokepoints. On average, 15 crude oil tankers
pass through the Straits of Hormuz every day, with much of that oil
headed to the United States.
We have two other large oil shipping chokepoints; one at the Suez
Canal and the other one at the Gulf of Aden at the bottom of the map.
To determine the true cost of America's dependence on foreign oil, it
is important to understand the cost to the taxpayers of defending and
protecting these shipping lanes. A New York Times editorial, in the
late 1990s, calculated the true cost of a gallon of gas, including the
military cost of making sure it can get from the oil wells of the
Middle East to the United States at $5 a gallon. Last week, I
questioned four-star retired U.S. Army GEN Wesley Clark on the true
cost of gasoline, when he appeared before the Committee on Agriculture.
He estimated it to be around $7 to $8 a gallon today, 10 years later
than the New York Times editorial.
Homegrown ethanol produced in the Midwest--I suppose anyplace in the
United States, but most of the corn is produced in the Midwest--doesn't
need a military escort to the gas stations on the east or west coasts
such as oil from the Middle East does. Homegrown ethanol does not need
the Department of Defense to protect its transport from our farm fields
to consumers. Again, our Nation's investment in ethanol is a real
bargain. It is increasing our economic and national security. That is
why it is important we continue to support this industry.
Some have claimed it is a mature industry and it no longer needs our
help.

[[Page S6233]]

This statement ignores the fact that ethanol is competing with a
century-old industry dominated by big oil, which itself has received
billions of dollars from the taxpayers over many decades and for
decades longer than the ethanol industry.
Getting back to the detractors I referred to, most often the people
who held the press conference a week ago today denigrating oil, these
ethanol detractors continue to undermine these efforts. One
organization estimates that a lapse in the tax incentive for ethanol
would shut down 40 percent of the industry and result in the loss of
112,000 green jobs. That is 112,000 jobs that rely on the production of
ethanol. We can't allow ethanol to follow the path of biodiesel which
has essentially shut down because this Congress failed to extend that
tax incentive that ran out last December 31. While President Obama
spoke in his address on Saturday about investing in homegrown clean
energy, 45,000 biodiesel jobs have vanished because of the lapse of the
biodiesel tax credit. It is inexcusable.
President Obama touted the goal of creating 800,000 clean energy jobs
by 2012. Why not take action today to extend the lapsed biodiesel tax
credit and immediately put 45,000 people back to work? The same thing
could happen to the ethanol industry, if we fail to extend the tax
incentive which runs out December 31 this year. If we undermine
ethanol, we are putting out the welcoming mat for dictators such as
Hugo Chavez. In fact, last night on the television, it said Chavez is
talking about maybe not selling oil to the United States.
Then, last week, as I referred to in my speech--and I told the
Senator from Arizona I was going to speak on ethanol this week--we had
the senior Senator from Arizona question the wisdom of domestic
renewable fuel incentives. He was quoted as saying:

Maybe we will stop this damned foolishness called ethanol
subsidies. It's one of the greatest rip-offs that takes place
on the American taxpayers.

So to those who would do away with our domestic ethanol production, I
have one question: Which country should we look to for 10 billion
gallons of fuel? Would we want to go to Saudi Arabia? Would we want to
go to Venezuela? Would we want to go to Nigeria? Whom would we rather
support with our hard-earned money? I want to ask this question: Would
we rather support Hugo Chavez or the American farmer? Would we rather
support Chavez, which is an insane thing to do? Sending money to
someone who buys guns to fight us is insanity. In this chart we have
these two people on the left, Chavez and the President of Iran. We have
the farmer of America on the right. Where would we want to get our
energy from? Whom would we want to rely on?
It is pretty easy to answer that question. We shouldn't be reducing
our use of renewable fuels. We should be increasing it. We should
produce all we can from corn and from the biomass that is left over
from corn and from grasses and from wood waste. We should increase the
use of biofuels by mandating the production of flex-fuel vehicles and
increasing the availability of blender pumps.
Ethanol is here today. It is creating a cleaner environment. It is
keeping money at home in our economy and increasing our national
security. Undermining the only renewable fuel that has the proven
ability to accomplish these goals would be insanity, a little bit like
the two people we see on the left but not the person on the right. The
person on the right is the backbone of the American economy because
nothing has contributed to the national wealth except what comes from
the national resources of the country.
Bottom line: Ethanol is good for America, but let's segment that. It
is good for agriculture. It is good for good-paying jobs in small town
America, where these renewable plants are located. It is good for the
environment. It is good for lessening our dependence on foreign oil,
which helps our trade balance, which helps our national security. There
isn't another issue Members can come before the Congress with that has
no negatives and all positives. In other words, everything about
ethanol is good, good, good.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.

Raising Taxes

Mr. KYL. Mr. President, I suspect my colleague, the senior Senator
from Arizona, will have something in response to say to my friend from
Iowa. But what I wish to talk about is a comment Secretary of the
Treasury Geithner made on television yesterday, in which he said he
thought it would be a good idea to raise taxes in this country and that
he didn't think income taxes on the higher two of the five tax brackets
will hurt economic growth. He also said he supports allowing the top
capital gains rate to be increased by 25 percent, from 15 to 20
percent.

I want to talk about that for a few minutes today. In this country,
we have two goals: job creation and economic growth. We also want to
reduce our Federal deficit and ultimately the Federal debt.
So how do we promote investment? There are two basic theories. One
theory is that if we spend a lot of money that we borrow from countries
such as China on programs such as the stimulus program, we can create
economic growth and jobs. That has not worked. We have 3 million more
people out of work today than when the stimulus package was put into
effect. In fact, unemployment was supposed to be 8 percent or so now
with the stimulus package, and, of course, it is 9.5 percent and with
no relief in sight. The other way to do this is through investment by
businesses, both large and small businesses. I think most economists
believe that if businesses have capital to invest, they can hire more
people, create more output or productivity, and therefore produce both
growth and jobs.
So what we should be doing is promoting job creation and economic
growth through private investment. How do we promote that? I know one
thing you do not do, especially in bad economic times, is raise taxes.
The last thing any business, especially a small business, needs--when
you are asking them to hire more people--is to say: By the way, would
you also give some money to Uncle Sam above what you are already
contributing? We need it, and you can put off hiring that person you
were going to hire for your business until later.
We know that is not how you promote economic growth. You should not
raise taxes, as I said, especially in a time like this.
Secretary Geithner said he did not believe higher taxes would hurt
economic growth. So I checked on what the President's chief economist
said--Christina Romer, Chairwoman of the President's Council of
Economic Advisers--to see whether she agreed with Secretary Geithner.
Well, it turns out she very much disagrees. In a paper that has just
been published in the June 2010 issue of the American Economic Review
called ``The Macroeconomic Effects of Tax Policy Changes,'' she writes,
among other things, the following--I am quoting now from page 764:

Our estimates suggest that a tax increase of 1 percent of
GDP reduces output over the next three years by nearly three
percent. The effect is highly statistically significant.

So output or growth is reduced by nearly 3 percent just over the next
3 years.
She says on page 797:

The key results--

And we are talking about the impact of tax changes on consumption and
investment, which are the two key components to growth.
She says:

The key results are that both components decline, and that
the fall in investment is much larger than the fall in
consumption. In response to a tax increase of one percent of
GDP, the maximum fall in personal consumption expenditures is
2.55 percent. . . . just slightly less than the maximum fall
in GDP. The maximum fall in gross private domestic investment
is 11.19 percent. . . .

So think of it: Just raising taxes by 1 percent of GDP results in a
decrease--or she calls it a fall--in gross private domestic investment
of over 11 percent. So not only are you not contributing positively to
investment and therefore hiring, but you are cutting it by 11 percent
during this same period.
She says on page 781:

In short, tax increases appear to have a very large,
sustained, and highly significant negative impact on output .
. . the more intuitive way to express this result is that tax
cuts have very large and persistent positive output effects.

So there you have it: Tax cuts promote economic growth. Tax increases

[[Page S6234]]

depress economic growth. They create a fall in both investment and
consumption and therefore output, and the result is statistically
significant.
Secretary Geithner is wrong. Raising taxes will have a highly
significant, negative impact on job creation, investment, and economic
growth in our country.
President Kennedy agreed with this a long time ago. He once said:

An economy constrained by high tax rates will never produce
enough revenue to balance the budget, just as it will never
create enough jobs.

The reason I quoted that is because the second goal we have--to
reduce budget deficits and public debt--is often used as an excuse by
those who want to raise taxes, saying: Well, we reduce debt by raising
taxes. As President Kennedy said, if you have high tax rates, you are
never going to produce enough revenue to balance the budget. You
balance the budget with economic growth. The more growth you have, the
more revenue is produced because people are making more money and they
are paying more taxes. We know that historically. This is not in doubt.
During times of economic growth, when people are doing well, revenues
to the Treasury increase. In times like today, revenues are decreased.
You are not going to be able to balance the budget in this kind of a
situation by simply raising tax rates because--what did we just show a
moment ago--raising tax rates depresses job creation, economic growth,
investment. So you cannot do it by raising taxes.
Indeed, I think my colleagues on the other side of the aisle have
exposed themselves a little bit here because they never seem to have a
concern about the deficit when it comes to spending. That is why they
were able to spend over $1 trillion in an economic stimulus package and
not pay for a variety of other things for which they increased
spending.
I thought the most interesting example was last week when they
refused Republican offers to pay for the $34 billion cost of extending
unemployment insurance. All of us wanted to extend unemployment
insurance. That was not in doubt. The question was, Should we pay for
it with offsets in spending elsewhere? In a $3 trillion budget, we
said: There are a lot of places you can get the money, starting with
unspent stimulus funds. So we could have paid for or offset the $34
billion cost of extending unemployment benefits. That was our proposal.
The Democratic side said: No. We will not extend unemployment
benefits unless we can add to the debt in doing so. We are going to
vote no unless it adds to the debt.
In the House of Representatives, the comment was made that they were
philosophically opposed to paying for or offsetting the cost because
they did not want to get into a position where they would have to find
a way to do that in the future. So they rejected an offer that was made
by at least one Democratic Senator to use some stimulus funding to
offset the cost of unemployment benefits. No, they said, we don't want
to do that. We do not want to offset the costs in any way. We want to
add to the debt.
So it seems a little hypocritical now for colleagues to come to the
floor and say: Oh, we have this big deficit problem. We don't want to
add any more to the debt. Let's raise taxes.
Then they have the temerity to say to Republicans--who say, we do not
want to raise taxes on anybody, on corporations, on businesses, large,
small, individuals, or anybody else--to say: Well, then, in that case,
you are going to have to raise taxes on somebody because the budget
assumes the tax rates that currently exist are going to be increased
next year. So if you are going to increase those tax rates for some
people--let's say the top two brackets--how are you going to pay for
that?
We say: What is to pay for? Taxes should not be raised. They should
not be raised on anybody.
Several of our colleagues on the other side of the aisle are
apparently in agreement with that. This is not the time to raise taxes
on anybody.
But in any event, if you say: Well, we have to raise taxes to reduce
the budget deficit, then why just raise taxes on the top two income tax
brackets? That would raise, over 10 years, $682 billion. But if you
raise taxes on everybody, you could raise taxes by $2.731 trillion.

Well, the obvious answer is, well, we wouldn't want to pay for that.
We wouldn't want to offset the cost of that.
But you have to figure out a way to offset the cost if we raise taxes
on the upper two brackets. It is a circular argument that I suggest
both makes no sense and is hypocritical.
The bottom line is this: Small businesses will get killed by an
increase in the rates of income tax--the so-called upper two brackets.
Twenty million people are employed by small businesses that pay their
taxes in those two brackets. As a result, what you are going to do is
inhibit the growth of our small businesses. An increase in the top
effective rate--this is from Douglas Holtz-Eakin--from 35 percent to 42
percent would lower the probability that a small business entrepreneur
would add to payrolls by roughly 18 percent.
So I think all of us realize that raising taxes, especially in those
top two brackets, will inhibit growth because small business owners
will have to pay the tax rather than hire someone. As I said before,
according to the NFIB, there are more than 20 million workers in those
firms directly targeted by the higher marginal rates. We would have to,
in effect--and this came as a result of statistics presented to us by
Senator Snowe, who is also on the Finance Committee--you would need to
have economic growth of 5.8 percent--about twice as much as we have
today--in order to return to a 5-percent unemployment rate by 2012. To
get there by 2013, you would have to have an annual growth rate of 5
percent to get back to 5 percent unemployment. Well, how are we going
to increase growth by that much?
I come back full circle to my original point: Our goal is economic
growth and job creation. You do not get there by raising taxes. So when
my colleagues start talking about raising taxes on anybody--from the
death tax to the capital gains tax to marginal rates--my question to
them is, Given the fact that the Chairwoman of the President's Council
of Economic Advisers has been so clear that this will inhibit job
creation and economic growth, why would you want to do that? Why would
you want to inhibit economic growth and job creation? The better way,
if we are really interested in reducing the deficit, as we should be,
is to begin to slow down the spending so that eventually we are not
spending more than we take in.
I will close with this point: Last Friday, the White House announced
that it turns out the deficit for next year is going to be $1.47
trillion. That is about three times higher than the highest deficit
with President Bush, and that was when the Democratic Congress was
appropriating the money. The year before that, it was less than $200
billion. In fact, the exact deficit the last year Republicans were in
control of the Congress and President Bush was President was $160
billion--$160 billion. That was 1.2 percent of GDP. For next year, it
is going to be $1.47 trillion--$1.471 trillion--or 10 percent of our
GDP.
The answer is clear: The way to reduce our deficits and reduce our
debt is by reducing spending. The way to economic growth is by not
increasing taxes. So I hope my colleagues will consider this as we
begin to debate the plans to finally achieve economic growth and job
creation for the United States.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President and colleagues, I rise today to talk about
this legislation, the DISCLOSE Act.
Like much of the legislation that is being taken up in the Senate
these days, the partisan battle lines are already being drawn on this
bill. One side sees the impending vote as yet another opportunity to
score some political points off the other, and vice versa. That makes
for a lively debate, but I am not sure what good it does the American
people.
I will say on a personal note that I will always fight with every
ounce of my strength for the people of Oregon and the folks whom I have
the honor to represent. I say to the Presiding Officer, you and I have
talked about this from time to time. I do not exactly come to the floor
of the Senate looking for gratuitous, political, counterproductive
fights. What I have been interested in, what I have tried to make the
hallmark of my service here, is trying to find common ground, trying to

[[Page S6235]]

find ways to bring people together. Some have said that is overly
optimistic, almost too idealistic. But I prefer to say it is simply
bipartisanship and principled bipartisan. It has been my experience in
the Senate that if you can get folks to put aside their political
talking points and focus on commonsense policy, not only are there
opportunities for us in the Senate to find common ground, there are
opportunities to advance policies that make sense for all Americans,
whether they are Democrats or Republicans. I have joined Senator
Schumer in cosponsoring the DISCLOSE Act because I continue to believe
this is such an opportunity for bipartisanship and finding common
ground.

For me, this issue took hold after the 1996 special election where
Senator Smith, my former colleague--my very good and personal friend--
and I campaigned against each other to be Oregon's first new U.S.
Senator in more than 30 years. Suffice it to say that campaign was not
the kind of calm and upbeat debate that folks here in the Senate would
expect from either me or from Gordon Smith. Instead, it was one of the
ugliest campaigns in Oregon history. There were attack ads being run by
both the left and the right. Certainly, while policy differences and
personal criticisms are fair and an almost inevitable part of a
political campaign, what bothered Senator Smith and me at that time,
during that special election--the only race that was being run anywhere
in our country--is not only did Oregon voters not know who was
responsible for the bulk of those ads; neither Gordon Smith nor I could
figure out who was saying what about whom.
My view was that something had to change. Something is way out of
whack when you are having scores of ads, hundreds and hundreds of ads
being run, and no one can figure out who is running them. My concern is
that we are heading back into exactly that same kind of situation,
given the decision from the U.S. Supreme Court.
Shortly after my election in 1996, when I had watched all of those
ads being run from all those various and sundry groups and not able to
identify who was running them, I came back to the Senate and said I am
going to do everything I can to change that. I got together with a
number of us on both sides of the aisle; let me emphasize that, because
it can't be emphasized enough. This was a bipartisan group that was
concerned about that particular issue. We came up with a concept known
as Stand By Your Ad, where, in effect, those who run ads in their
campaigns--it has continued to this day--would have to own up to their
being the ones sponsoring the message.
As part of the campaign reform of 2002, Stand By Your Ad was
included. In my view, it has ushered in a new era of personal
accountability in political elections by requiring candidates to take
personal responsibility for the contents of their ads. Not only has
every Member of this body seen those ads; my guess is just about
everyone but our new colleague from West Virginia has actually recorded
those ads. That is, in effect, what is required. One has to say: ``I am
Ron Wyden and I approved this message.'' It certainly isn't a hard
thing to do, and it certainly is not out of line with what the American
people have a right to expect, which is openness and personal
accountability.
Now with the Supreme Court decision giving corporations and unions
and even foreign economic interests the ability to spend as much, if
not more, money to influence elections than the candidates themselves,
I think it is only right that these groups abide by the same rules as
the candidates themselves. Just as voters have a right to know when a
candidate is trying to influence their vote, I believe voters have a
right to know when one of these powerful organizations seeks to do the
same.
Of course, this is going to have an impact on the content of
political speech. Sunlight is the most powerful disinfectant, and I
think all of us ought to understand these groups that are buying all
these ads are going to be a little bit more hesitant to pay for an
outrageous attack, an outlandish overreach, if they know they have to
put their name on it. I think the question that ought to be asked here
in the Senate is not why should organizations have to stand by their
political speech, but the question should be why don't they want to.
What are they actually ashamed of? In my view, if you feel strongly
enough about an issue to buy television time, you ought to have the
guts to put your name on it. I have felt that ever since 1996 when I
first campaigned for the Senate, and I continue to believe that today.
I know the debate we are going to have tonight and tomorrow on the
DISCLOSE Act is going to spur a lot of very impassioned speeches about
political elections, and there are going to be accusations flown by one
side or another about who is going to get a political advantage and
what ought to be done to quash the person who is somehow deriving a
political advantage out of it. But I would simply say as we go into
this discussion that everybody here in the Senate ought to remember
exactly how we earned our seats in the first place.
This very institution was founded on the idea of equality and free
and open debate. Each and every citizen's voice and vote would be given
the same weight as each and every other. What concerns me is that the
Supreme Court decision, in my view--I say this respectfully--does a
disservice to that concept by making it possible for some voices to
drown out others. That is what ought to be contemplated at this point,
and it is certainly what I have been talking about at home, which is
that this decision has made it effectively possible for a foreign
economic interest to have a louder voice in this country's political
process than a hard-working, tax-paying Oregonian. I don't think that
is fair; I don't think it is just; and I am not prepared to stand for
it.
I am proud to join Senator Schumer in sponsoring and advocating for
this important legislation that, in my view, is worthy of
bipartisanship. I know there is going to be a strong push to deal with
the politics of this issue, but I think this bill is now worthy of
bipartisan support.
Changes have been made to the legislation to address some of the
original concerns that were expressed about the bill. There were
concerns originally addressed that some groups weren't being held as
accountable as others and I believe the legislation has been amended to
correct many of those problems. I think Senator Schumer deserves
considerable credit for it. I have always felt that a credible effort
at transparency means you have to hold your friends just as accountable
as those who may disagree with you, and this legislation does that. It
does other important reforms in terms of electronic filing, and I think
it is very much in the interests of the American people. It certainly
will make it possible for the press to report more expeditiously on
these kinds of expenditures.
I wish to commend Chairman Schumer of the Rules Committee. I think he
has been genuinely interested in a collaborative and open process. I
believe Senator Schumer has asked me specifically to participate in
this kind of process because he knows that is what I feel so strongly
about.
We have major issues we have to tackle in the days ahead. I heard
Senator Kyl talk about taxes. Senator Kyl made a point, in discussing
taxes with me, about the whole role of tax expenditures which, in
effect, is a huge issue in this tax debate. Senator Gregg and I have
put out the first bipartisan tax reform bill in two decades. So we have
a lot of work to do here and we have to do it in a bipartisan way. I am
very hopeful the changes that have now been made, particularly ones
ensuring that one makes it clear--that it is so important that
accountability and transparency apply in the broadest possible way--and
that will make it possible to bring both sides together here in the
Senate.
We came together back in 1996 to write Stand By Your Ad. A number of
those Senators on both sides of the aisle I know feel very strongly
about open and transparent government. Let's find a way for the Senate
to duplicate what we did in 1996, and let's make sure that as we go
into this election there is transparency and accountability. I don't
want to see again what we saw back in 1996 where ads are flying from
all sides, in every direction, making charges that are clearly
outrageous and over the line and in no way ensures that voters know who
is

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paying for those ads. The country deserves better. The Senate ought to
make it possible for the country to get better and more accountable
government, and I am very hopeful this Senate will pass the DISCLOSE
Act, particularly the important changes that Senator Schumer has made,
in the days ahead.
Mr. President, I yield the floor.
Mr. DORGAN. Mr. President, I make a point of order that a quorum is
not present.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

The Economy

Mr. DORGAN. Mr. President, I listened with some interest to my
colleague from Arizona, the minority whip, discuss his notion about the
economic issues confronting our country. I wish to respond a bit to
them with great respect, of course, because I think the opportunity to
have competing ideas about our country's future is a very important
opportunity here on the floor of the Senate.
Some long while ago I wrote in a book that I published about Stanley
Newberg. I wrote in the book that I had read about Stanley in a very
small New York Times article, but it so piqued my interest that I
decided to try to find out about Stanley, so I did. I found that
Stanley had come to this country as a young boy to escape the
persecution of the Jews by the Nazis. He, with his father, sold fish, I
believe, on the Lower East Side of New York City, in Manhattan. He
followed his dad selling fish. He learned English. He went to school.
Then he was able to do well in school and go to college. His parents
had saved for him. He went to college and graduated from college and
then went to work. He got a law degree and then he went to work for an
aluminum company. He did so well he rose up and finally managed the
aluminum company and then purchased the aluminum company. When he died,
they opened his will. In his will he said he wanted to leave his $5.7
million to the United States of America for the privilege of living in
this great country, and that was Stanley Newberg's will.
I thought: That is really unusual for someone to die and in their
will leave their money to this country with gratitude for the privilege
of living in this great country. What a remarkable thing to remind all
of us that being an American is something we shouldn't take for granted
Monday through Friday or all week long, for that matter.
It is the case, I think, for most of us that when we grew up, we
understood this country was the biggest, the strongest, the best,
destined to expand opportunity for our children, and things would
always be better for the next generation than for the last. That is how
we viewed this country of ours.
But it is the case, it seems to me, these days that America has lost
a step. There is great concern about whether the kids will have it
better than we had it. There is great concern about the economy and the
fact that there are probably 18 million to 20 million people who woke
up this morning either without a job, or with less of a job than they
could easily handle. They are underemployed or unemployed--18 million
to 20 million people. People woke up this morning and saw the news that
we are deep in debt and getting deeper in debt. They are concerned
about the federal debt, and they should be, there is no question about
that.
Let me, for a moment--because I want to engage on the proposition by
my colleague from Arizona--transport us back to 2001. In 2001, on the
floor of the Senate, during that period, we had a pretty raucous
debate. That debate on the Senate floor was about the first budget
surplus in 30 years under the last year of President Bill Clinton--a
budget surplus of a couple hundred billion dollars. Alan Greenspan was
not sleeping at night because he was worried that we were going to pay
down the Federal debt too rapidly and that would injure the economy.
Many of my colleagues said we have a surplus now, and the economists
project that we are going to have surpluses for 10 years--as far as the
eye can see. You have heard the old line that if you were to lay all
the economists end to end, they would never reach a conclusion.
Individually, almost all of them said we have a surplus, and now we
will have one as far as the eye can see. Many of my colleagues
supported George W. Bush's proposal to provide tax cuts for the next 10
years. They said: Let's provide tax cuts for the next 10 years because
we need to give this surplus back to the American people.
I stood on the floor of the Senate then and said I don't think we
ought to give back tax funds that don't yet exist. These surpluses are
only projections. What if something would happen? How about being a
little conservative about this? But, no, Katy bar the door; they said
we are going to provide large tax cuts, and the largest to the
wealthiest Americans, such that if you made $1 million a year in
income, you got an $80,000 or so a year tax cut. That was the proposal.
It passed--without my support, but it passed. So that was the
experience in 2001.
Fast forward to 2010. Where are we? We are $13 trillion in debt. By
the way, this is testimony before the Senate Committee on Finance by
Leonard Burman, who is the Daniel Patrick Moynihan Professor of Public
Affairs at the Maxwell School at Syracuse University:

If the Bush tax cuts had never been enacted, the debt held
by the public at the end of 2009 would have been 30 percent
lower, to about $5.2 trillion . . . This was less than the
level of debt at the end of 1999.

The question is--and this is what brought me to the Senate floor--my
colleague says we have to extend the tax cuts that were provided in
2001. The President says let's extend the tax cuts for middle-income
folks making $250,000 a year, or below. My colleague from Arizona, and
others, say, no, let's extend all of Bush's tax cuts from 2001. Let's
extend them all. The difference is about $1 trillion added to the debt
over the next decade. Extending those tax cuts for roughly 2 percent of
the wealthiest U.S. households will cost, with interest, about $1
trillion.
My colleague says if you don't do that, then you are increasing taxes
on upper income people, and that is going to retard economic growth.
Let me talk for a bit about that, because it is interesting to me that
those who are on the floor saying let us not let the tax cuts expire--
by the way, these were tax cuts for upper income people, who got the
largest tax cuts, and they were given because we were trying to give a
surplus back. Does anybody see a surplus around here? Has anybody seen
a surplus for 9 years?
Right after the Senate and the Congress passed legislation to provide
significant tax cuts for wealthy Americans, we had a recession in 2001,
on 9/11 we had a devastating terrorist attack, and then we went to war
in Afghanistan, and then we went to war in Iraq, and we had a
continuing war against terrorism. We never saw a surplus beyond that
year. That deficit and debt went up, up, up, and up.
At the same time all of that was happening, this new administration
that came in in 2001 not only said we are going to cut taxes largely
for the wealthy, but they said we are going to hire a bunch of
regulators in this town who will promise not to look. You do what you
want and we won't watch. Wall Street went wild. It was an unbelievable
carnival of greed. We had trillions and trillions of dollars of
financial vehicles being created that had never been created before,
such as naked credit default swaps, synthetic CDOs--you name it--and
they were trading back and forth. As Will Rogers said, people were
trading things they never got from people who never had it. Everybody
was making a lot of money on Wall Street, like hogs in slop, as they
say on the farm.
The fact is that the house of cards they created came tumbling down.
When this President crossed the threshold of the White House in January
of last year, had he taken a Rip Van Winkle nap for a year and done
nothing, the budget deficit he inherited was going to be $1.3 trillion.
Now we have a $13 trillion Federal budget deficit, and now we have the
circumstances of a tax cut, the bulk of which went to the wealthy, that
was described by the minority 9 years ago as being essential to give
back the surplus that doesn't exist.
The question is, will that tax cut be extended for the wealthiest
Americans?

[[Page S6237]]

Phrased another way, shall we add another $1 trillion in Federal debt
in order to give tax cuts at $80,000 a year to someone who makes $1
million a year? At the same time our colleagues say that is essential
to do, they say if you don't do that, you will have an unbelievable
impact on small business, because that is who will pay these taxes.
That is not true at all--just not true. About 3 percent of small
business income, would be captured by that; 97 percent would not. Those
are the facts.
At the same time we have people pushing for that--adding $1 trillion
to the debt by giving the highest income earners in the country
extended tax cuts--the same folks are coming to the floor and saying,
by the way, one of our highest priorities is not only to extend the tax
cuts for the highest income earners, it is to make sure we repeal
permanently the estate tax. They don't call it that; they call it the
``death tax.'' Why do they do that? Because a pollster did a poll and
said if you call it the ``death tax,'' you can fool the American people
who will believe there is a tax on death. But of course, there is not;
there is a tax on inherited wealth.
It seems to me that is an interesting set of priorities. They say we
are concerned about the Federal deficit and debt--and, by the way, we
want to add $1 trillion to the debt by opposing President Obama's
request that we not extend the tax cuts for people making over
$250,000. We want to add $1 trillion to the debt, and we also want to
repeal the entire estate tax.
I don't know how one believes that set of priorities represents the
best interests of our country. I am for lower taxes. I would love it if
people could pay minimal taxes across this country. But I am also for a
country that works, and a country that matters, and a country that
invests in itself and its future. Someone once asked the question: If
you were given the assignment to write an obituary and the only
information you had about the deceased was their check register, what
would you write? So you look at that check register and find out what
did they spend money on? What was their value system? What was
important to them?
The same is true with the Federal budget and the priorities we
described by taxing and spending. What will historians say when looking
back and seeing that we were in deep trouble, with 20 million people
out of work or underemployed, a $13 trillion debt, and the minority was
saying the highest priority was to cut taxes for those earning
$250,000, and more, and to repeal the tax on inherited wealth? That is
unbelievable.
You know, the only way, as of last year, you would pay any tax on
inherited wealth is if you had more than $7 million a year. How many
families have more than $7 million net per year? By the way, this year,
the inheritance tax is zero, and it springs back the next year. That
goofy set of circumstances was arranged by the same people who wrote
the tax cut bill in 2001 to give back a surplus that turned out not to
exist. So we have a zero tax year this year, and four billionaires have
died so far. By the way, their estate will pay a zero rate, and my
colleagues come to the floor and say that money has already been taxed.
Wrong, it has not. Much of it is growth appreciation of property or
tax, and it has never borne a tax. It is just the folks who go to work
every day and pay their taxes on time; they pay for their kids'
schools, and roads, and police, and fire protection, and the Defense
Department, and the CDC--they are the ones paying the taxes.
But do you know what? If you find the people who have 10, 15, 20, and
$50 million in assets--I will show you that the bulk of that has come
through growth appreciation that has never borne a tax at all in this
country. That is the highest priority for the minority--to eliminate
the tax on inherited wealth. That is unbelievable to me.
We in this country have a very serious set of problems. We need to
cut Federal spending, there is no question about that. Federal agencies
are big and, in some cases, bloated. I mentioned the other day that I
think I have done pretty well myself. I want to spend in this country
to invest in good things that will make this a better country. I want
us to continue building and improving our roads, our schools, and the
things that make this a better country. But I also believe we ought to
cut back where we should.
In my State, some years ago, there was a proposal to build a new
courthouse, and $46 million was put into an appropriations bill, which
passed, to build a new courthouse in the largest city of my State. I
thought it was way overboard, so I cut it to $23 million--in half. It
was built for $19 million. Some people say: That is strange, cutting
funding for your own State. But I thought it was excessive spending. I
don't care whether it is my State, or other States; we need to tighten
our belts and cut spending. We can cut in areas where we are spending
too much, no question about that.
You don't address this unbelievable burden of debt deficit and by
deciding you are going to cut your revenue as well. You cannot do that.
Who will pay for this country and what it needs? We have some people at
the top of the income ladder in this country who are only paying a 15-
percent income tax rate--the highest income earner, 2 years ago, earned
$3.6 billion--that is $300 million a month--and paid a 15-percent tax
rate.
Most working people don't get to pay a tax rate that low. Some of
those folks are running their companies through tax haven countries,
with deferred compensation deals to even avoid paying a 15-percent
rate. Somebody has to pay some taxes to invest in the future of this
country. We need to invest in our children and in our infrastructure.
Somebody has to pay those taxes. I understand that nobody likes to pay
them very much, but we have to get control of this deficit, no question
about that. We have to decide as a country that you can't ask men and
women to lace up their boots and put on ceramic body armor and go
halfway around the world and take a gun and fight and be shot at and,
by the way, we ask you to do that in the name of our country, and we
will not pay for a penny of it. We will add it to the debt. We have
done that for 8 years. We cannot continue to do that. Americans know
better than that.
Let me finish by saying that, as I said earlier, we should not
necessarily believe that everything will be all right just because we
live here in America. This country deserves good judgment and tough
decisions to put the country back on track. In the book McCullough
wrote on John Adams, they were putting this new country together and he
was traveling in Europe. The record of all of that is in his letters to
Abigail. He would write back as he was traveling abroad and ask the
plaintive question: Where will the leadership come from to build this
new country? From where will the leadership come? Who will be the
leaders as we try to put this new country together? Then, in the next
letter, he would answer the question.

There is only us to provide the leadership. There is me. There is Ben
Franklin, Thomas Jefferson, George Washington, Madison, Mason. In the
rearview mirror of history, the ``only us'' represents some pretty
unbelievable human talent who risked their lives, risked their
fortunes, risked all they had to do the right thing for this country.
The question for us now, with a $13 trillion debt, an anemic economy,
great partisan divides that exist between the political parties, and
elections coming up in November, the question is, From where will the
leadership come? Who really is willing to lead this country by saying:
Here is what we have to do? It is not pleasant always. But who is
willing to make those judgments to say we cannot just always take for
granted what America's future might be based on what it was? This
country deserves better.
I am not here to say one party is all right and one party is all
wrong. I heard my colleagues say: If you do this, it is bad for small
businesses. That is not the case in any event. We have had a bill on
the Senate floor that would provide assistance, help, and investment to
small businesses. It has been on the floor 3 weeks, and the very people
who say they are for small businesses have been blocking it for 3
weeks. All we need is some straight talk from time to time.
I would like everybody to pay the lowest possible tax rate. I would
like our government to be the most efficient. I would like us to invest
in the future of our country. I would like all

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those things to happen. I would like it if we were not at war. I
watched yesterday down at a place called the Newseum. Once again, I
watched the video of 9/11/2001. That was not brought on by us; that was
brought on by others, and we did not have a choice but to address these
issues.
When we do these things, we must do them as a country that cares
about our future. We cannot just spend money, send soldiers to war, do
all these things and say: We don't have to pay for any of it and you
all will understand. That is not leadership.
This President inherited a pretty tough situation. Now he is
criticized for saying he inherited a tough situation. The history books
will write what he inherited. He is trying pretty hard but does not get
agreement on much of anything these days. At the very least we ought to
say we agree, let's extend tax cuts for middle-class Americans. This is
a pretty tough time for them. But we had some of the highest rates of
growth in this country when the wealthiest Americans were paying the
tax rate that previously existed. Extending tax cuts for the wealthy at
a time when we are at war and we say we would like to extend to them an
$80,000-a-year tax cut if they have a $1 million a year income? That is
not leadership, in my judgment.
This country deserves better, this country can do better, and this
Congress can do better with a little less partisanship and a little
more thought and see if we can come together to represent the future of
this country.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I forgot to put my chart up again. Every
day I want to remind people what this is all about.
Will Rogers, 80 years ago, said what applies today. He said:

The unemployed here ain't eating regular, but we'll get
around to them as soon as everybody else gets fixed up OK.

We will get around to the unemployed as soon as everybody else gets
fixed up OK. I am part of the Old West out in the northern Great
Plains. They used to say about wagon trains: You don't move a wagon
train ahead by leaving some wagons behind. This country is best when it
works together.
Will Rogers described this in the 1930s:

The unemployed here ain't eating regular, but we'll get
around to them as soon as everybody else gets fixed up OK.

Wall Street got fixed up with hundreds and hundreds of billions of
dollars and untold trillions from the back door of the Federal Reserve
Board. They got fixed up. Now they are seeing record profits again.
There are a whole lot of folks at the bottom of the economic ladder
who are not fixed up and are out of work--not from their fault, nothing
they did; they are just out of work because they lost their jobs during
a severe economic downturn.
It seems to me that is what requires our leadership. In this Chamber,
at this moment, nobody is out of work. Everybody puts on a white shirt,
a suit, and comes to work. Nobody is out of work. But a whole lot of
Americans are. We ought to keep our priorities on that every single
day.
This country works best when we are able to put people back to work.
There is no social program this Senate is involved in, no social
program as important as a good job that pays well. That is what makes
everything else possible.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Shaheen). Without objection, it is so
ordered.

Separation of Powers

Mr. SPECTER. Madam President, I have sought recognition to comment
about the serious erosion of the doctrine of separation of powers
during the course of the past two decades. With the pendency of the
confirmation of Solicitor General Elena Kagan for the Supreme Court of
the United States, this is a particularly apt time to discuss this
matter since these issues were a part of the confirmation process.
What we have found in the course of the past two decades is that
Congress has lost considerable institutional authority, with the Court
taking over on congressional authority or by refusing to decide certain
cases, leaving the executive branch a great deal of what had been
congressional authority. We find, for example, that the Foreign
Intelligence Surveillance Act--where the Congress of the United States
determined that the exclusive way for obtaining a wiretap on the
invasion of privacy was through a court order--has been abrogated to a
substantial extent by the terrorist surveillance program, which I shall
speak about at a later time. Similarly, when you have the Foreign
Sovereign Immunities Act, again by deciding not to take the case
involving the survivors of 9/11, the Court has left the executive
branch with considerable authority which, I would submit, rightfully
belongs to the Congress.

But today the issue I want to discuss, and I will turn to others at a
later time, is the question of how the Court has taken over more of
congressional authority by moving into the area of fact finding, which
is a traditional legislative responsibility.
Chief Justice Roberts, in his confirmation hearings, testified
extensively, as did Justice Scalia in his confirmation hearings, about
it being a legislative function to find the facts. Congress has the
institutional competence to have hearings, to examine witnesses, to go
into evidence, and to make a factual determination about what public
policy should be. As Chief Justice Roberts said in his confirmation
hearing, when the Court moves into that area, the Court is, in effect,
legislating.
I submit that where the traditional doctrine of separation of powers
is being altered, it is a very fundamental and serious change in our
constitutional structure. Separation of powers is an integral part of
the structure of the Constitution: article I for the legislative
branch, article II for the executive branch, and article III for the
judicial branch. This separation of powers has provided the checks and
balance in our system.
But in the course of the past two decades, the Court has moved into
an area where Congress had traditionally been in charge. In the case of
United States v. Lopez, a 5-to-4 decision decided in 1995, the Supreme
Court of the United States said legislation which limited someone from
carrying a gun on school property was unconstitutional because it was
not justified under the commerce clause. This was a very surprising
decision because there had not been a successful challenge to the
exercise of Congressional authority legislating under the commerce
clause for some 60 years.
This is what Justice Souter had to say, for a four-Justice dissent,
the case being a 5-to-4 decision, as so many of them are. In dissent,
Justice Souter said the Court should defer to ``congressional judgment
. . . that its regulation addresses a subject substantially affecting
interstate commerce if there is any rational basis for such a finding.
. . . The practice of deferring to rationally based legislative
judgments is a paradigm of judicial restraint. . . . [I]t reflects our
respect for the institutional competition of Congress on a subject
expressly assigned by the Constitution to the Congress and our
appreciation of the legitimacy that comes from Congress's political
accountability in dealing with matters open to a wide range of possible
choices. . . . The modern respect for the competence and primacy of
Congress in matters affecting commerce developed only after one of the
Court's most chastening experiences. . . .'' Justice Souter was
referring to what happened to the Supreme Court during the New Deal era
when the Supreme Court in the 1930s struck down a great many of the
congressional enactments, leading to a great deal of controversy,
leading to proposals to expand the number of Justices, and the famous
President Roosevelt Court-packing

[[Page S6239]]

plan. But within what Justice Souter says, and what I have just quoted,
it is a matter of legislation when the Court moves into the fact-
finding process.
The Lopez case was followed 5 years later by the case of United
States v. Morrison. There, the Supreme Court of the United States
invalidated portions of the Violence Against Women Act, holding that
they were not constitutional because of the congressional method of
reasoning. Again, Justice Souter sounded the clarion call, speaking for
four Justices when he said:

Congress has the power to legislate with regard to activity
that, in the aggregate, has a substantial effect on
interstate commerce. . . . The fact of such a substantial
effect is not an issue for the courts in the first instance .
. . but for the Congress, whose institutional capacity for
gathering evidence and taking testimony far exceed ours. . .
. The business of the courts is to review the congressional
assessment, not for soundness but simply for the rationality
of concluding that a jurisdictional basis exists in fact.

Justice Souter then went on to point out that there was a mountain of
evidence in support of what the Congress had decided to do.
The Supreme Court of the United States later invalidated
congressional legislation in Kimel v. Florida Board of Regents, largely
on the same ground. The case involved allegations of violations of age
discrimination in employment, and, in the Kimel case as in the Morrison
case, the Court relied upon a test where it said the act of Congress
should be judged in terms of its proportionality and congruence. This
test of congruence and proportionality was articulated by the Supreme
Court in the City of Boerne case. It had never been a part of
constitutional doctrine, and the grave difficulty is in inferring what
is meant by congruence and proportionality.
In a later floor statement, I will take up two decisions of the
Supreme Court of the United States, each 5 to 4, involving the
Americans with Disabilities Act.
One of the problems which has been found in the confirmation process
is the grave difficulty of getting an idea of the ideology of the
nominees because of the refusal of the nominees to answer questions. It
was thought that the confirmation proceeding of Solicitor General Elena
Kagan would provide an opportunity to find out something about the
approach, the ideology or philosophy of the nominee because Ms. Kagan
had written so critically, in a 1995 article in The University of
Chicago Law Review, about the nomination proceedings involving Justice
Ginsburg and Justice Breyer.
Ms. Kagan, in that argument, criticized them for stonewalling and not
answering any questions. Also, Ms. Kagan in that article criticized the
Congress--the Senate, really--for not doing its job in the confirmation
process and finding out where the nominees stood.
When Ms. Kagan appeared before the Judiciary Committee, it was a
repeat performance. One question which I asked her brought the issue
into very sharp focus. I asked her what standard would she apply, if
confirmed, on judging constitutionality? Would she use the ``rational
basis'' standard, which had been the standard of the Supreme Court for
decades, the standard which Justice Souter talked about in the two
dissenting opinions I have just referenced? Or would she use the
``congruent and proportional'' standard, which had everybody befuddled.
Justice Scalia said that the standard of proportionality and
congruence is a ``flabby standard,'' which was so indefinite, vague,
and unsubstantial that it left the Supreme Court open to make any
determination it chose and in effect to legislate.
In later floor statements, I will take up the question as to what
might be done to try to stop this erosion of the doctrine of separation
of powers, what might be done to stop the reduction of Congressional
authority. One line which had been suggested was to defeat nominees. As
I will comment later in more detail, there does not seem to be much of
a Senate disposition to defeat nominees for failure to answer
questions. Based upon what has happened in every confirmation
proceeding since Judge Bork's confirmation proceeding in 1987, the
practice has evolved of no answers and confirmation.
Another idea was explored by Senator DeConcini and myself after the
Scalia hearings, where Justice Scalia answered virtually nothing.
Justice Scalia was confirmed in 1986. Justice Bork's confirmation
proceeding followed in 1987, and after Judge Bork did answer questions,
as he really had to with such an extensive paper trail, Senator
DeConcini and I decided we didn't need to pursue the idea of a Senate
standard. But that is an option which might be considered.
Another potential method of dealing with the issue would be the idea
of televising the Supreme Court--which I have talked about and will
talk about in some detail at a later date. Taking off on what Justice
Brandeis said about sunlight being the best disinfectant, and publicity
being the way, as Justice Brandeis put it in a famous article in 1913--
being the way to deal with social ills.
In an article in the Washington Post on July 14, just a couple of
weeks ago, a noted commentator on the Supreme Court, Stuart Taylor,
said that the only way the Supreme Court would change its ways is if
there was an infuriated public. To infuriate the public, the first
thing that has to happen is for the public to understand what the
Supreme Court is doing.
In light of the lateness of the hour, that is a subject which I will
take up at a later time in detail. But the focus today is on the three
cases: the Lopez case, the Morrison case, and the Kimel case.
I thank the staff for staying overtime. I know there had been a hope
to conclude a few minutes earlier, by 6, but we are not too far gone
considering tradition on the Senate floor of extended presentations.
I believe there is an announcement the clerk would like me to make in
concluding the proceedings today?

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