[Congressional Record Volume 156, Number 154 (Tuesday, November 30, 2010)]
[Senate]
[Pages S8259-S8267]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FDA FOOD SAFETY MODERNIZATION ACT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 510, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 510) to amend the Federal Food, Drug, and 
     Cosmetic Act with respect to the safety of the food supply.

  Pending:

       Reid (for Harkin) amendment No. 4715, in the nature of a 
     substitute.
       Coburn motion to suspend rule XXII of the Standing Rules of 
     the Senate, for the purposes of proposing and considering 
     Coburn amendment No. 4696.
       Coburn motion to suspend rule XXII of the Standing Rules of 
     the Senate, for the purposes of proposing and considering 
     Coburn amendment No. 4697.

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 2 minutes of debate equally divided and controlled between 
the Senator from Oklahoma, Mr. Coburn, and the Senator from Hawaii, Mr. 
Inouye.
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, in the absence of Senator Inouye, I ask 
unanimous consent to speak on his behalf for the 1 minute allocated.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Motions to Suspend

  Mr. DURBIN. Mr. President, I am going to vote today against the 
Coburn effort to change our rules relative to earmark legislation.
  I wish to tell you, as a member of the Senate Appropriations 
Committee, we have put in place what I consider to be the most dramatic 
reform of this appropriations process since I have served in Congress. 
There is full disclosure, in my office, of every single request for an 
appropriation. We then ask those who have made the request for the 
appropriation to have a full disclaimer of their involvement in the 
appropriation so it is there for the public record.
  This kind of transparency is virtually unprecedented, and I think it 
is an effort to overcome some of the embarrassing episodes which 
occurred primarily in the House of Representatives under the other 
party's leadership, where people literally went to jail because of 
abuse of the earmark process.
  I believe I have an important responsibility to the State of Illinois 
and the people I represent to direct Federal dollars into projects 
critically important for our State and its future. What the Senator 
from Oklahoma is setting out to do is to eliminate that option.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. DURBIN. I hope my colleagues will join me in opposing the Coburn 
motion.
  Mr. LEVIN. Mr. President, Senator Coburn has proposed an amendment to 
the badly needed food safety legislation now before the Senate that 
seeks to end congressionally directed spending, or earmarks. Senator 
Coburn described his amendment as an attempt to get spending under 
control, but it fails the test of accomplishing that goal and fails to 
meet Congress's constitutional obligation to exercise the power of the 
purse.
  Article I, section 9 of the Constitution of the United States places 
the power of Federal spending in the Congress, the branch of government 
most directly connected to the people. The power of the purse is great, 
and therefore accountability for the exercise of that power should be 
great as well.
  Our greater responsiveness in Congress to immediate public needs is 
essential. If the Coburn amendment passes, we would be barred from 
bringing that judgment to bear on some of the most pressing issues of 
the day. Instead, the executive branch--which is, in practice, the most 
bureaucratic and least responsive branch--would control these 
decisions. For example, under Senator Coburn's proposal, only the 
executive branch would have the power to initiate funding for disaster 
relief. Measures to appropriate funds in response to disasters would be 
prohibited because they would dedicate funding to specific locations. 
So, had this measure been in place when Hurricane Katrina struck the 
Gulf Coast, Congress would have been powerless to react. Similarly, had 
this restriction been in place when a Mississippi River bridge 
collapsed in Minnesota in 2007, Congress could not have appropriated 
the $195 million it set aside for repair and reconstruction.
  This measure also would prevent Members from addressing the urgent 
needs of our communities. I and other Members from Great Lakes States 
have urged the Army Corps of Engineers and other agencies to address 
the growing threat that Asian carp will make their way from the 
Mississippi River watershed into the Great Lakes. These invasive 
species of fish would devastate the lakes, doing enormous harm to our 
States' economies. So long as the Army Corps continues to underfund 
this important work, only the action of Congress can prevent an 
economic disaster.
  I would argue that each of these expenditures is important and 
necessary. But the wisdom or folly of these decisions lies in the 
merits of the projects themselves, not in the manner by which they were 
funded. Allowing the Congress to make these decisions allows the voters 
to judge them on their own merits, to reward their representatives when 
they make wise choices, and to render judgment in the voting booth when 
they do not.
  Senator Coburn is rightly concerned about the long-term fiscal 
condition of the government. But it has been repeatedly pointed out, 
despite the fiction surrounding this issue, that this amendment would 
do nothing to improve our fiscal situation. Year after year, Congress 
works within the top line of budgets submitted by the President, 
readjusting priorities without increasing total spending. For this 
reason, the Coburn amendment would not reduce spending levels; it would 
simply shift greater authority for deciding how money is spent from the 
legislative branch to the executive.
  There are two ways to close our fiscal gap. We can reduce spending or 
we can increase revenue. Banning congressionally directed spending does 
neither. It would create the impression that we have taken a step 
toward fiscal responsibility, without making any of the difficult 
choices that reducing the deficit will require. I applaud Senator 
Coburn's desire to address our debt. But this measure fails to do so 
and in the process abdicates our constitutional responsibilities. So I 
will oppose this amendment and urge our colleagues to do the same.
  Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the 
Coburn-McCaskill amendment, which would impose a 3-year moratorium on 
earmarks.
  This amendment is a direct attack on the authority vested in the 
Congress to determine how Federal funds are spent, despite the fact 
that this power is clearly established in Article I of the U.S. 
Constitution.
  I, for one, take great exception to this attack. It would set a 
dangerous precedent, in my view, to simply turn over a blank check to 
the executive branch and undermine the power that the Constitution 
grants Congress. What if an administration is not focused on the needs 
of a particular State, perhaps because that State didn't vote for that 
President?
  For years I have fought for funding of flood control in Sacramento. 
Sacramento is one of the most endangered cities in the country when it 
comes to catastrophic risk of flooding. Neither Democratic nor 
Republican administrations have requested sufficient funding for the 
flood control improvements that will protect lives and property in that 
community.

[[Page S8260]]

  As the Senator elected to represent the people behind those levees, 
shouldn't I be able to fight for the funding, whether or not the 
President agrees? I was elected by the people of California to 
represent the needs of California. And the people of Sacramento 
certainly believe they need flood control. This is my duty as a 
Senator. Isn't that why we have a Congress?
  As a coequal branch of government, we shouldn't be forced to approach 
the administration with our hat in hand every time we believe something 
needs to be done.
  Another flaw in this amendment is the well-trod idea that it will 
save this country money. Simply put, that is incorrect.
  Discretionary spending is a popular target to attack. But the truth 
is that earmarks make up less than one-half of a percentage point of 
all Federal spending.
  Earmarks are not the problem, so banning earmarks is not the 
solution.
  The real problem is entitlement spending. But tackling entitlement 
reform is neither easy nor popular. So, instead, we attack earmarks. It 
sounds good, and it gets applause. But we all know that it doesn't 
solve the problem.
  This amendment won't save this country one penny. It will merely 
shift the power of the purse from Congress to the White House and 
executive agencies.
  If you want to reduce discretionary spending, it must be done through 
the budget process.
  I am also concerned about the process the Coburn-McCaskill amendment 
sets forth for waiving this new rule.
  Rather than putting into effect a traditional budgetary point of 
order, which requires a three-fifths vote to waive, this amendment 
calls for a two-thirds vote.
  This means that if this amendment is approved, funding a public works 
project would require the same number of votes as constitutional 
amendments, impeachments, treaties, or the expulsion of Senators.
  Why should the question of an earmark rise above the three-fifths 
requirement to invoke cloture on the very bill containing the earmark?
  Finally, this amendment disregards the significant reforms that have 
already taken place to make the process transparent.
  Since Democrats regained control of the Senate, the following reforms 
have been enacted: Members must publicly certify that they have no 
private interest in earmarks they request. Members must post their 
earmark requests on the internet. Every bill with earmarks includes a 
table listing the Senators who made the requests. This is the most 
transparent earmark process ever, and I believe the reforms have 
worked.
  The earmark process has been abused in the past, but I firmly believe 
that eliminating the discretion of Congress to appropriate taxpayer 
dollars is folly. A knee-jerk reaction that tips the balance of power 
toward the executive branch is not the solution.
  Let me say this: I am open to further reform if it will make the 
process even more transparent.
  The House of Representatives already bans earmarks to most private 
firms, and I would support doing so in the Senate.
  I believe the best use of earmarks is to provide funding for projects 
that are essential to the public good, such as water infrastructure 
improvements in a city such as East Palo Alto that cannot provide clean 
water to its residents without a funding share from the Federal 
Government, or interoperable communications equipment in Contra Costa 
and Alameda Counties, which can be used when an earthquake or other 
catastrophe strikes.
  I believe this amendment is wrong for the Senate, it is wrong for our 
States, and it is wrong for the people we come here to serve.
  Handing over a fundamental responsibility to the executive branch, at 
a savings of zero dollars to the taxpayer, is not the solution. 
Continued reform of a process that is important to so many of our 
communities is the better alternative.
  Mr. DORGAN. Mr. President, I rise today to speak against the Coburn 
amendment that would impose a 3-year moratorium on Congress' 
constitutional responsibility to direct the spending of the Federal 
Government.
  The amendment in question propounds a problem that doesn't exist, a 
solution that resolves nothing, and an argument that is factually 
baseless.
  This amendment will not lead to deficit reduction. In fiscal year 
2010, congressionally directed initiatives make up less than one-half 
of 1 percent of total Federal spending.
  With total spending at $3.5 trillion it is irresponsible to tell the 
American people that congressionally directed spending of one-half of 1 
percent of this total amount is the cause of our country's deficit 
problem.
  Mathematically it is incorrect and mechanically it is incorrect. 
Doing away with congressionally directed initiatives does not guarantee 
deficit reduction--it guarantees members of the administration will 
make all the funding decisions.
  Inherent in the arguments of the amendment's supporters is the 
contention that projects and activities selected by the administration 
are superior. The argument seems to rely on the notion that there is 
some objective formula used by the administration to select the best 
and most worthy projects to fund. This is false.
  The fact is even in programs where some formula may be used, such as 
a cost-benefit ratio formula, the formula is not necessarily perfect 
and can often fail to capture all the facts.
  A small port dredging project may not look worthwhile when just the 
commercial traffic is calculated. However, when the sport fishery 
impact is included it makes the calculation different. Further, if the 
fish processing plant reliant on the commercial fishery is the largest 
employer in the county that makes a difference.
  While the formula may not capture these facts and thus the project 
fails to make the President's budget request, the areas congressional 
members and senators will know the facts and seek to modify the budget.
  There was a recent news article using a Missouri project as an 
illustration of this debate. The project was not requested in the 
budget and the senior Senator from Missouri rectified this fact by 
adding an earmark.
  The junior Senator from Missouri is quoted in this article saying the 
project would have been funded without such an earmark if funding had 
not been diverted to less worthwhile earmarks. I am sorry, but there is 
no basis for the junior Senator's claim.
  We have no idea what the administration will send up in the budget. A 
very worthwhile project may come forward and it may not. And the 
reverse may be true. The administration may send up a project that is 
not currently justified.
  During the George W. Bush administration the budget request one year 
included construction funding for a Corps of Engineers project. The 
problem was the chief engineer's report was not completed yet because 
the studies were still on-going. Thus there was no way for the 
administration to know based upon any objective criteria whether the 
project should move into the construction phase.
  While the project may have proved to be worthy there was no objective 
basis for the administration making that assessment at that time. The 
fact is the administration added the project out of some political 
calculation, not an objective calculation.
  Let me provide some facts on earmarks using the civil side of the 
Corps of Engineers and the Bureau of Reclamation which have two of the 
most highly earmarked budgets of any Federal agency due to the way 
projects are authorized and appropriated.
  For fiscal year 2010, the President proposed spending $6.2 billion 
for these two agencies. In his request the President proposed 1,184 
individual line items valued at $4.8 billion based on criteria of his 
choosing. This criteria is not based in law nor was the criteria 
coordinated with anyone outside of the administration.
  The criteria was developed to ``get the biggest bang for the buck'' 
but how do we know that? Just because that is what the administration 
says.
  Upon my review of the budget request, I was convinced that the 
administration had left many priorities unfunded. That is why in 
preparing the fiscal year 2010 Energy and Water appropriations bill, 
the subcommittee of

[[Page S8261]]

which I am the chair, we used the criteria established in law to 
determine what projects were eligible for funding.
  Further, we gave particular credence to funding ongoing work. It is 
not prudent to fund a construction project in one year and not fund it 
in the next. Yet the administration did not propose funding for more 
than 175 ongoing construction projects that were funded in fiscal year 
2009.
  These termination costs were not accounted for in the budgets that 
the agencies provided to Congress. The Corps or the Bureau of 
Reclamation cannot walk away from a construction site because they are 
not funded for that project. They would have to reprogram funds from 
other projects to make the site safe for the public until it was funded 
again.
  Funding projects in this manner delays completion of the projects, 
increases the costs and defers the benefits that these projects provide 
to the national economy.
  For fiscal year 2010, Congress provided $6.58 billion for the COE and 
the Bureau of Reclamation. Congress directed $817 million of this total 
funding. All of this directed funding was disclosed in the required 
disclosure tables in the report that accompanied the bill.
  Let me list just a few projects that would not be funded in fiscal 
year 2011 if we enacted the President's budget request as proposed:
  Blue River Basin flood control project in Missouri; Swope Park 
Industrial Area flood control project in Kansas City, MO; the Puget 
Sound and Adjacent Waters Environmental Restoration project in 
Washington; the Charleston Harbor, SC, navigation deepening study; the 
Virginia Beach, VA, hurricane protection project; and the Western Sarpy 
and Clear Creek, NE, flood control project.
  For that last project in Nebraska, the funds proposed in the fiscal 
year 2011 Senate report would complete the project, yet it did not make 
it into the President's budget. Imagine these objective criteria that 
the administration uses would leave the completion of a fully 
authorized and economically justified construction budget for another 
year.
  I must also mention the issue of transparency. Today all Member 
requests are available on line for public review. All Members must 
certify that they and their family have no pecuniary interest in these 
projects.
  If there are legitimate proposals on further improving transparency 
then I am sure they will be given consideration, but as of today the 
public knows who is backing the projects we fund. There is 
accountability and there is sunlight.
  I fear that if Congress cedes its authority to direct spending then 
we will go back to a time when Members, staff, and entities outside of 
the Federal Government will begin to pressure the administration and 
bureaucracy on getting specific projects funded.
  There will be no disclosure of these phone calls and meetings. We 
will not know if any trades have been made in exchange for project 
support.
  Why would we give up sunlight and accountability for darkness and 
unaccountability?
  Let me close by reiterating the basic points.
  First, this amendment will not reduce the deficit. At less than one-
half of 1 percent of total spending congressionally directed spending 
is simply not going to make a difference, particularly when that 
funding will be left for the administration to direct its allocation.
  Second, there is no objective formula that makes sure funding goes to 
the most worthwhile projects. It simply doesn't exist. The Constitution 
gives Congress the power of the purse. This ensures the President's 
power is checked and assures Federal elected officials closest to the 
people are making these decisions. It is absurd to give to an unelected 
bureaucracy that may never have been in your state the final decision 
on what projects to fund.
  Third in project based accounts such as the Corps of Engineers the 
administration already earmarks the vast majority of projects funded. 
Congress is not abusing the power of the purse.
  Lastly, we have greater transparency today on congressionally 
directed spending than ever before. If we do away with this transparent 
process we will be left with a dark, unknown process of congressional 
Members, constituent groups, and lobbyists seeking to influence the 
administration. We should not trade transparency for darkness.
  Mrs. BOXER. Mr. President, I oppose the Coburn amendment to impose a 
3-year moratorium on spending for local priorities, or ``earmarks.'' 
Those who support this amendment claim that it will help reduce the 
deficit and put us on the path to fiscal responsibility. This is just 
incorrect.
  Eliminating earmarks would not reduce spending and does nothing to 
decrease the deficit. This amendment would merely transfer spending 
authority away from elected members of Congress to the executive 
branch.
  The Coburn amendment would strip elected leaders' ability to direct 
funding to their constituents' priorities. We should all agree that 
elected Members of Congress have a much better understanding of what is 
needed in our cities and towns, and across our States than those 
sitting in Washington, DC.
  In addition, since 2006, Democrats have instituted a series of major 
reforms that have made earmarks more transparent than ever, and have 
reduced earmark levels by 50 percent. Members of Congress are now 
required to list their names next to requested projects and to post all 
requests on their official Web site. Through these initiatives Congress 
has taken significant steps to improve transparency and allow for 
greater scrutiny of these requests.
  I am proud to say that I have helped fund hundreds of local 
priorities across my home State of California: priorities that have 
helped build safer roads, increased commerce, prevented homes from 
flooding, improved health care services, spurred job creation and 
helped veterans recover from combat injuries.
  I oppose the motion to suspend the rules and allow for consideration 
of the Coburn amendment.
  Mr. LEAHY. Mr. President, I rise today to express my opposition to 
the Coburn amendment. The legislative branch has a constitutional duty 
to make modifications and adjustments to the budget for the Federal 
Government. As a U.S. Senator and a member of the Appropriations 
Committee, I take very seriously the responsibility of the Senate to 
help craft the annual Federal budget. Members of Congress have a duty 
to their constituents to preserve their role in working with the 
executive branch, whether Democratic or Republican, about how, where, 
and in what manner Federal dollars are spent.
  The U.S. Constitution gives the responsibility of spending and 
taxation to the Congress, not to unelected bureaucrats in the executive 
branch. The notion that individuals who are completely unaccountable to 
the American people will make spending decisions undermines the most 
basic principle of democracy. Instead, the Founding Fathers correctly 
put this burden on the shoulders of individuals who have to answer to 
voters at the ballot box.
  Over the last few months, and particularly in the days since the 
election, some Members of Congress and Members-elect have been tripping 
over themselves to take a stronger position in opposition to so-called 
earmarks. Proponents of this amendment claim that it targets earmarks. 
I would argue otherwise. This amendment strikes at the heart of the 
balance that our Founding Fathers established between the executive and 
legislative branches of our government.
  Every single State would be shortchanged by the proposed moratorium 
on earmarks. The Founders knew better. They knew that a Washington 
bureaucracy would not always make decisions that were best for country, 
including people working and living in small towns and big cities 
across America.
  That also includes making better decisions for the men and women who 
serve in our military. There is no better example than the National 
Guard and Reserve Equipment Account. Republican and Democratic 
administrations alike have short-changed the Guard equipment budget for 
decades and have done so even as the Guard has been called to provide 
as much as half of the troops needed for operations in Iraq and 
Afghanistan. Without the National Guard and Reserve equipment account, 
our National Guard units would still be going into battle without

[[Page S8262]]

equipment like body armor and blast-protected vehicles. Congress 
insisted on providing funding to our National Guard and that has saved 
countless lives and enabled them to carry out their missions more 
effectively.
  Adopting this amendment is a vote for less transparency. It is a vote 
for backroom dealing and less sunlight on how decisions regarding 
Federal spending are made. One need only look back to when Congress has 
in the past failed to pass the appropriations bills and the government 
operated under a continuing resolution for the year. Federal spending 
did not go down by a single dime. Instead, unelected administration 
appointees made decisions on which projects they wanted to see funded.
  It is my hope that before the next Congress a measure of sanity 
returns to discussion of the Federal budget. Everyone agrees that we 
must make serious changes to our Federal balance sheet and bring our 
fiscal house in order. But it was not earmarks that created our 
alarming Federal debt. Eliminating earmarks is not going to get our 
fiscal house in order. Instead it is going to expand the power of the 
executive branch and its employees. It also rolls back all of the 
transparency that Congress has embedded into its budget process.
  Congress and the administration need to work together to address our 
Federal deficit. Adopting this amendment banning earmarks is a 
publicity stunt that has serious ramifications that actually moves our 
country in the wrong direction toward solving our problems in an open 
and constructive way.
  Ms. KLOBUCHAR. Mr. President, I rise today to discuss the amendment 
offered by the senator from Oklahoma that would prohibit 
congressionally designated spending items from being included in any 
authorization, appropriations, or other bill for 3 years.
  I firmly believe the appropriations process needs to be changed. I 
have supported strong reforms to increase transparency and 
accountability, and have pushed hard for these necessary reforms while 
ensuring that my State of Minnesota is not put at a competitive 
disadvantage.
  In fact, before being sworn in as a U.S. Senator, I promised 
Minnesotans that I would fight to fund their priorities in an open 
manner and pledged to include these requests on my official Web site. 
At that point in time, the posting of requests online was not a rule of 
U.S. Senate.
  Since arriving in the Senate, I have supported several important 
reforms to how Congress directs spending. I have voted for limitations 
on earmarks, including voting to ensure that American Recovery and 
Reinvestment Act funds would be competitively bid. I also voted to 
rescind funds directed to certain transportation projects that have not 
been spent.
  Clearly, there is more we can do to improve this process and I will 
continue to push for necessary reforms.
  However, I believe that congressional appropriations help provide 
much-needed resources for important programs and projects across my 
State. All of the projects I sponsor are based on Minnesota constituent 
requests and are available for the public to review.
  Many of the requests I receive come from my visits to all 87 counties 
in Minnesota every year. A local mayor will show me a busy road that 
children in the community must cross many times a day to reach their 
school and baseball fields. And the mayor will ask me to request funds 
to help build an underpass that will allow these kids to safely get to 
school and their games.
  Or a sheriff will show me how the local law enforcement's outdated 
communications equipment interferes with emergency response and 
endangers lives. And the sheriff will ask me to earmark funds to 
upgrade the department's radios.
  In my State of Minnesota, we remember all too well how on August 1, 
2007, the I-35W bridge across the Mississippi River in Minneapolis 
collapsed without warning. After we mourned the loss of 13 lives and 
the shock of the disaster had subsided, we got to work with enormous 
task of constructing a new bridge.
  I worked hard with my colleagues in the Senate, especially Majority 
Whip Dick Durbin, Transportation Appropriations Chairman Patty Murray 
and Senator Norm Coleman, to provide up to $195 million in funds to 
help with the cost of constructing a new bridge. Under Senator Coburn's 
amendment, this funding would be considered an earmark, and Minnesota 
would have been left looking for other ways to recover from this tragic 
event.
  Earmarks have done more than build bridges in Minnesota. Earmarks 
have provided critical funding to the Minnesota National Guard's 
groundbreaking ``Beyond the Yellow Ribbon Program,'' which is 
nationally recognized for the assistance it provides our service men 
and women who bravely served our nation and are now transitioning to 
civilian life.
  Congressionally directed projects protect communities against annual 
flooding across my State from Roseau in the north to Moorhead in the 
west to Owatonna in the south. And congressionally initiated spending 
funds an innovative program in Stearns County, Minnesota to help 
protect women and children who have been the victims of domestic 
violence, provides much-needed resources to improve law enforcement 
communication and interoperability, and is building a new highway 
interchange in Blue Earth County, MN, that will improve safety and ease 
congestion while helping generate economic development.
  Congressionally initiated spending cannot be discussed without also 
considering the grave financial situation we face as a nation. It is 
clear that we will need to make very tough decisions in the coming 
years to restore fiscal responsibility and get our nation on a path 
towards strong growth. Yet the Coburn amendment would not direct any 
savings from the elimination of earmarks to be used for deficit 
reduction.
  We need a serious commitment to deficit reduction, and I believe we 
need real reforms. I look forward to the report by the President's 
National Commission on Fiscal Responsibility and Reform and others who 
are taking a comprehensive look at government spending. It is my hope 
that we can come together to consider these recommendations carefully 
and reduce our nation's debt.
  I am committed to serious fiscal discipline, and will continue to 
support real reforms to increase transparency to the appropriations 
process.
  Mr. VOINOVICH. Mr. President, I rise today to express my opposition 
to the moratorium on earmarks that has been proposed by many of my 
colleagues.
  We have done a lot of crusading around here against these so-called 
earmarks, or congressionally directed spending items, in our 
appropriations bills. They are often criticized by Members of Congress 
when discussing the unsustainable fiscal path of the Federal Government 
or its irresponsible overspending of taxpayers' dollars.
  But my colleagues who oppose the use of earmarks miss the point. 
Earmarks, whether good or bad, are not the problem with our government. 
According to data from the Congressional Research Service and the 
Congressional Budget Office, in fiscal year 2010 earmarks accounted for 
0.009 percent of the Federal budget. That is nine one-thousandths of 1 
percent. Total earmarks amounted to $32 billion, while the entire 
Federal budget was over $3.5 trillion. And by the way, I would like to 
point out that the President-himself requested $22 billion in earmarks.
  But the biggest threat we face as a nation is not a special request 
for this or that project. The biggest threat we face is an 
unsustainable fiscal course caused by explosive and unchecked growth in 
entitlement spending and no money to pay for it. We have got an 
outdated tax code that does not sufficiently encourage economic growth, 
and a skyrocketing national debt that puts our credit-rating is serious 
jeopardy. In fiscal year 2010, entitlement spending accounted for 55 
percent of the budget, compared with the 0.009 percent for earmarks I 
just referred to.
  Now, I will say that I do agree with much of the criticism expressed 
in this chamber over bad earmarks. I don't support wasteful use of any 
taxpayer money, especially for egregiously useless projects that my 
colleagues often highlight as examples of why we should eliminate 
earmarks altogether.
  But why throw out the baby with the bathwater? Certainly there is 
both

[[Page S8263]]

good and bad government spending. I support the kind of government 
spending that facilitates activity that is helpful to my State of Ohio 
and to our national economy: transportation and infrastructure, for 
example. And I am perfectly willing to defend that kind of spending and 
let the public decide whether my decision to help build roads and 
bridges in Ohio is an outrageous--or a proper--function of Federal 
Government. The Senate appropriations earmark process is transparent, 
and I welcome the public review of the projects I support, which I find 
constructive especially for hard-working, economically challenged 
families in Ohio.
  The truth is Congress has a constitutional obligation to determine 
how the Nation spends its money. Banning earmarks cedes this power to 
unelected Federal bureaucrats in the administration. Congress should 
not be criticized for spending money, but only for spending it 
wastefully or irresponsibly, be it through earmarks or other spending. 
But the media loves to single out earmarks; they are hoodwinking people 
into thinking that by cracking down on earmarks, Congress is doing 
something responsible to solve this looming fiscal crisis staring us in 
the face. It's a disingenuous approach. And Congress is fooling the 
public by pretending that earmarks are the problem, when the real 
issues are spending and tax and entitlement reform.
  It is interesting to note that many of my colleagues who are so 
strongly opposed to earmarks voted against the Conrad-Gregg fiscal 
commission that could very well have forced Congress to act upon tax 
and entitlement reform recommendations. How could one be so outspoken 
against earmarks in the name of fiscal responsibility and then oppose 
the commission that would propose reforms to the tax code and 
entitlements in order to put the country on a fiscally sustainable 
path?
  So if my colleagues want to demonstrate true fiscal responsibility, 
if they admit that earmarks they have supported in the past are good 
use of tax dollars, and if they admit that banning earmarks would cede 
this control of spending from Congress to the administration, then why 
take such a blunt approach? Why don't we take more thoughtful and 
nuanced steps outlined by Senator Inhofe, who suggested we reform the 
already transparent earmark process and offered specific ideas on how 
to do it? Some of my colleagues practically admit that banning earmarks 
is not a very good idea per se, but that eliminating them is only 
politically expedient, as the public has come to see earmarks as a 
symbol of Washington's irresponsibility.
  I don't want the public to be fooled by this. I don't support every 
earmark. There will always be examples of some wasteful projects 
somewhere. But earmarks are not the problem that gravely threatens our 
country's way of life, and the future of our children and 
grandchildren. This is why for over 5 years I have worked to create a 
commission to solve our Nation's real fiscal problems, and why I hope 
that the commission created by the President can produce a final 
legislative proposal that will effectively address our unchecked 
entitlement growth, our outdated and overly complex Tax Code, and 
return our Nation to a sustainable fiscal path.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
question is on agreeing to the Coburn motion to suspend the rules with 
respect to amendment No. 4697.
  Mr. GRASSLEY. I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Maryland (Ms. Mikulski), and the Senator from New 
Hampshire (Mrs. Shaheen) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond) and the Senator from Kansas (Mr. Brownback).
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 39, nays 56, as follows:

                      [Rollcall Vote No. 255 Leg.]

                                YEAS--39

     Alexander
     Barrasso
     Bayh
     Bennet
     Brown (MA)
     Bunning
     Burr
     Chambliss
     Coburn
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Isakson
     Johanns
     Kirk
     Kyl
     LeMieux
     McCain
     McCaskill
     McConnell
     Nelson (FL)
     Risch
     Roberts
     Sessions
     Snowe
     Thune
     Udall (CO)
     Vitter
     Warner
     Wicker

                                NAYS--56

     Akaka
     Baucus
     Begich
     Bennett
     Bingaman
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Coons
     Dodd
     Dorgan
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inhofe
     Inouye
     Johnson
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Manchin
     Menendez
     Merkley
     Murkowski
     Murray
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shelby
     Specter
     Stabenow
     Tester
     Udall (NM)
     Voinovich
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--5

     Bond
     Boxer
     Brownback
     Mikulski
     Shaheen
  The PRESIDING OFFICER. On this vote, the yeas are 39, the nays are 
56. Two-thirds of the Senators voting not having voted in the 
affirmative, the motion is rejected.
  Under the previous order, the question is on the Coburn motion to 
suspend the rules with respect to amendment No. 4696. There will be 2 
minutes of debate equally divided prior to the vote.
  Who yields time? The Senator from Iowa.
  Mr. HARKIN. Mr. President, we are rapidly approaching the final vote 
on the Food Safety Modernization Act. For the first time in seven 
decades, the Congress has addressed this issue. It has taken several 
years to get to this point. We have had involvement from Republicans 
and Democrats, from the business community, and from the consumers 
groups. It is widely supported by both the business sector and the 
consumer groups. We have had good bipartisan support on this bill with 
Senator Enzi and others on our committee. This is the product of a long 
effort to reach the compromise we needed to get good legislation 
through.
  The vote we are about to have now is on a substitute offered by my 
friend, the Senator from Oklahoma. This substitute would basically kill 
all of this work we have done. It eliminates a lot of the provisions we 
have in this bill, such as the preventive control provisions that I 
think is one of the most important parts of this bill, to get 
preventive measures in and to prevent the contamination of food in the 
first place.
  It also eliminates the important trace-back provisions that we have 
in this bill that we have worked on on a bipartisan basis. It would 
eliminate the important foreign supplier verification provisions which 
say they have to verify that the food coming into this country is the 
same as this.
  I ask Senators to reject the substitute.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. Mr. President, Senator Harkin and many on the HELP 
Committee have worked hard on the bill that is before us. But it has 
fatal flaws, especially at a time when there is a $14 trillion debt and 
a $1.3 trillion deficit, and it doesn't fix the real problem. We can 
spend $1.4 billion in this bill. We can cause food prices to go up at 
least $300 million to $400 million. We can put unfunded mandates on the 
States for $141 billion a year. That is what we will do if we reject 
this alternative. This accomplishes the same thing, given that we have 
the safest food in the world. We will continue to have the safest food 
in the world, we will move forward, but we won't do it by creating 
layers upon layers of additional costs and regulations. The problem 
with food safety is that the agencies don't do what they are supposed 
to be doing now. They need less regulation, not more.
  I yield the floor.
  Mr. ALEXANDER. Mr. President, I ask for the yeas and nays.

[[Page S8264]]

  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond) and the Senator from Kansas (Mr. Brownback).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 36, nays 62, as follows:

                      [Rollcall Vote No. 256 Leg.]

                                YEAS--36

     Alexander
     Barrasso
     Bennett
     Brown (MA)
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Wicker

                                NAYS--62

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--2

     Bond
     Brownback
  The PRESIDING OFFICER. On this vote, the yeas are 36, the nays are 
62. Two-thirds of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mrs. BOXER. Mr. President, I move to reconsider the vote by which the 
motion was rejected and I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                            Vote Explanation

  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I was unavoidably delayed on vote No. 255, 
the Coburn motion to suspend the rules as to the Coburn amendment on 
earmarks. I would have voted a very strong no because I believe that 
authority should remain with the elected representatives and not go to 
bureaucrats.


                            SAVINGS CLAUSES

  Mr. DURBIN. Will the distinguished floor manager for this bill yield 
in order to enter into a colloquy to clarify the meaning of certain 
provisions in the legislation?
  Mr. HARKIN. I am pleased to yield to the distinguished majority whip 
and lead sponsor of this legislation.
  Mr. DURBIN. Mr. President, I wanted to clarify an important part of 
this bill. While this bill does grant FDA many new authorities, the 
savings clauses in this bill--in particular, sections 403(3), 
418(1)(3)(B), and 41900(3)(B)--preserve all of FDA's existing authority 
under both the Federal Food, Drug, and Cosmetic Act and the Public 
Health Service Act, am I correct?
  Mr. HARKIN. That is correct.
  Mr. DURBIN. So while the bill does provide for certain exemptions 
from FDA authority for small farms and food processing facilities, 
these exemptions are based only on the specific provisions added by S. 
510; they do not prevent FDA from taking appropriate actions against 
specific farms or facilities--or from issuing regulations in the future 
that might affect those exempted farms and facilities--based on 
existing authorities that are currently in effect and will continue to 
be in effect after enactment of S. 510. Am I understanding this 
correctly?
  Mr. HARKIN. My colleague is correct. The exemptions for small farms 
and facilities in S. 510 do not in any way circumscribe FDA's existing 
authority under current laws. As my distinguished colleague has just 
stated, this existing authority is expressly preserved in the savings 
clauses in the bill. Over the past 15 years, FDA has relied on a number 
of provisions in existing law in establishing preventive control, or 
``HACCP,'' and other preventive requirements for seafood, eggs, and 
juice. These authorities include section 402(a)(4) of the Federal Food 
Drug and Cosmetic Act, which gives FDA the authority to take action 
against ``adulterated food'' when that food has been subjected to 
``insanitary conditions.'' In adopting these regulations, FDA has also 
relied on section 701(a) of the food and drug law, which gives it broad 
authority to issue regulations ``for the efficient enforcement'' of 
that law, as well as its authority to ``prevent the introduction, 
transmission, or spread of communicable diseases'' under section 361 of 
the Public Health Service Act.
  Mr. DURBIN. I thank my distinguished colleague for clarifying this 
important matter.
  Mr. LEVIN. Mr. President, each year, 76 million Americans are 
sickened by foodborne illness. More than 300,000 become so sick they 
must be hospitalized. More than 5,000 die of their illness. These 
statistics are deeply worrisome. And behind each number is a family 
dealing with tragic loss or expensive hospital bills or concern for a 
sick child.
  The situation cries for action, which is why I support passage of the 
legislation we are now considering, the FDA Food Safety Modernization 
Act. This legislation seeks to address major deficiencies in the system 
that protects Americans from foodborne illnesses. It includes 
provisions recommended by Republicans and Democrats, by government 
experts and outside groups. It should have strong bipartisan support.
  The bill would give FDA authority to initiate food recalls even when 
producers of unsafe foods refuse to do so voluntarily. It would 
strengthen FDA's ability to trace harmful products to their source. It 
would crack down on the unsafe food imports that have been the source 
of many health-risk incidents. It would increase FDA's authority to 
inspect food-producing facilities to prevent illnesses. And it would 
require greater diligence on the part of those producers to prevent 
foodborne illnesses and other health threats.
  Passing this legislation will make our food safer and protect 
Americans from harm. I will vote to approve it, and I hope for a strong 
bipartisan vote in favor of this bill.
  Mr. WHITEHOUSE. Mr. President, I rise today in support of the FDA 
Food Safety Modernization Act. I commend Senator Durbin, Senator 
Harkin, and the many other Senators who have worked so hard for so long 
on this important legislation. It is long past time that we make 
improvements to our food safety procedures in the United States, and we 
can see by the diversity of interests that have come together to 
support this bill from industry to farm to consumer groups that the 
time to address this issue is now.
  Like so many Rhode Islanders, I have been appalled by the stories of 
deaths and serious illnesses from seemingly benign foods such as peanut 
butter and spinach. These are foods we bring into our homes, expecting 
them to nourish our families. We shouldn't have to worry that they 
might make our children sick. American families need to know that their 
government is protecting the food supply.
  This bill goes a long way toward improving the Food and Drug 
Administration's food inspection and recall system. First, the bill 
improves our ability to prevent food safety emergencies through better 
record keeping, hazard analysis, controls, and food safety plans. These 
standards are also applied to imported foods, which is increasingly 
important in our global economy. Second, FDA's ability to react to 
foodborne illness outbreaks is significantly enhanced by increasing 
inspection and surveillance, making food more traceable in order to 
more quickly pinpoint the source of an outbreak. Furthermore, the bill 
grants the FDA the authority to order a mandatory recall of food if a 
company refuses to participate in a voluntary recall. Finally, this 
bill enhances FDA's capability to protect the American food supply from 
terrorist threats and from intentional contamination through building 
cooperation with the Department of Homeland Security at our ports.
  I am very pleased that all of this is accomplished while protecting 
small farmers and producers. Rhode Island is

[[Page S8265]]

very proud of its small farms, local produce, and the wonderful farmers 
markets that can be found throughout the State. Our farmers are proud 
to feed families in Rhode Island and the surrounding States, and I know 
they do everything possible to ensure the food they sell is safe. I 
thank Senator Tester for his work on a compromise to protect farmers 
like those in Rhode Island, and throughout Nation, who believe in the 
value of locally grown food.
  It has been disappointing that the process to bring this bill about 
has taken so long. The bill's sponsors have been trying to bring it to 
the floor of the Senate for a vote for months, during which time the 
outbreak of salmonella in eggs made the need to improve our food 
inspection system even more clear. This is not a perfect bill, but it 
is a necessary one. Once it is passed, we must continue to build upon 
it. The matter of our families' safety is not a partisan issue; 
ensuring food safety is a fundamental function of our Federal 
Government.
  Mr. CASEY. Mr. President, the next time we sit down to eat dinner 
with our families, are we sure that the food on our tables is safe to 
eat? I understand that many Americans are concerned about food safety 
issues. We all want food for our families that is nutritious and free 
from foodborne pathogens and contaminants. Ensuring that our food 
supply, both domestic and foreign food products, is safe is a high 
priority for me. I am focused on food safety not only as a lawmaker but 
also as a consumer and a father.
  Americans have every right to expect a safe food supply. We need 
solutions to give Americans peace of mind that the foods they eat and 
give to their families are safe to consume. There are 76 million cases 
of foodborne illness in this country every year. These illnesses send 
an estimated 300,000 Americans to the hospital each year and they kill 
an estimated 5,000 individuals yearly. Many of these deaths occur in 
vulnerable members of our communities: young children, the elderly, or 
those with chronic illnesses.
  I will share with you the story, a real story, of Kevin Kowalcyk, a 
2-year-old boy, who was sickened with an E. coli O157:H7 infection that 
he acquired from eating a common food. I want to speak about Kevin 
because I want to be clear that when we are not talking about 
statistics today, we are talking about real people, real lives. Kevin's 
illness started with vomiting and diarrhea, but soon he was passing 
large amounts of blood. On the third day of his illness, he was 
diagnosed and hospitalized. On the following day, his kidneys started 
to fail. The medical staff, while brutally honest about how hemolytic 
uremic syndrome, HUS, affected children, felt that Kevin would live. 
They told Kevin's parents that he would go to the brink of death--which 
he did on several occasions--because ``this is the way it is for HUS 
kids.''
  On day 12 of his illness, this normally healthy little boy looked as 
sick as a child can look. His body was swollen to three times its 
normal size, and he was hooked up to a dialysis machine and a 
respirator. His heart raced at 200 beats per minute, and light from 
huge sun lamps focused on him, in attempt to raise his body 
temperature. Kevin could not speak or cry. His loving family could not 
hold him. He suffered three heart attacks as they struggled to put him 
on a heart-lung machine. And then Kevin died. The autopsy later showed 
that his entire intestinal tract had been destroyed by gangrene.
  One month after Kevin's August 11, 2001, death, America experienced 
the horrible 9/11 attack, and the Kowalcyk family were told that they 
were having another baby. Kevin's grandmother, Pat Buck, a Pennsylvania 
resident, was very concerned about her daughter and her new grandchild, 
and she was horrified by the type of death that her grandson had 
endured. So Pat did what any teacher would do and started studying 
foodborne illnesses. What she learned shocked and appalled her.
  By March 2002, Kevin's family was actively involved in food safety 
advocacy. In April 2003, Senator Harkin declared that the Meat and 
Poultry Pathogen Reduction and Enforcement Act would be renamed Kevin's 
Law. In 2006, after the spinach outbreak, Barbara Kowalcyk, Kevin's 
mother, and Pat Buck founded the Center for Foodborne Illness Research 
& Prevention, CFI, a national nonprofit dedicated to preventing 
foodborne illness through research, education, advocacy, and service. 
In 2007, Barbara and Pat were asked to participate in the filming of 
the Oscar-nominated documentary, ``Food Inc.'' Today, CFI is viewed as 
a credible organization that is looking for science-based solutions to 
America's food safety challenges.
  I tell you about Kevin's story because it is a powerful reminder that 
real people are being affected by foodborne disease, not just once in 
awhile but every day. I want to thank Barbara and Pat Buck for sharing 
their story and becoming involved in such an important issue that 
affects all of our lives. In particular, I am thankful to them for 
turning their family's tragedy into an action that will help to ensure 
no child would ever again go through Kevin's horrible experience.
  As Pat said to me once while visiting my office, ``It is time to move 
forward. Too many people are being sickened, too many are suffering 
negative, long-term health consequences and too many are dying because 
they ate a common food, such as peanut butter, cookie dough or fresh 
produce. The 1938 law governing the Food and Drug Administration is too 
obsolete and it does not provide the Agency with the authorities or 
resources needed to develop a proactive approach to food safety. S. 510 
will help FDA to become more proactive. This legislation is needed to 
help America meet the food challenges of the 21st century.''
  The U.S. Senate must modernize the U.S. system of food safety and 
inspection. That is why I am pleased to support passage of S. 510, 
Senator Durbin's Food Safety Modernization Act. We must provide the 
agencies that regulate food safety with additional authorities to 
ensure the safety of our Nation's food supply. We must provide 
increased resources to the FDA so that it can hire more personnel and 
so it can invest in improvements to domestic and imported food products 
inspection systems. We must mandate science-based regulations to ensure 
the safety of food products that carry the most risk. We must improve 
coordination between USDA, FDA, and the various other Federal and State 
agencies charged with regulating food safety. We must implement a 
national traceability system so we have consistency and know where our 
food comes from. And we must ensure the safety of both domestic and 
foreign food products.
  With Senator Grassley, I introduced the EAT SAFE Act, which is 
designed to address a critical aspect of the food and agricultural 
import system: food being smuggled into the United States. The greatest 
threat of smuggled food and agricultural products comes from the 
companies, importers, and individuals who circumvent U.S. inspection 
requirements or restrictions on imports of certain products from a 
particular country. Some examples of prohibited products discovered in 
U.S. commerce in recent years include unpasteurized raw cheeses from 
Mexico containing a bacterium that causes tuberculosis and strawberries 
from Mexico contaminated with hepatitis A. These smuggled food and 
agriculture products present safety risks to our food, plants, and 
animals and pose a threat to our Nation's health, economy, and 
security.
  I am grateful to Chairman Harkin, Ranking Member Enzi, Senator 
Durbin, Senator Dodd, Senator Gregg, and Senator Burr for incorporating 
portions of the EAT SAFE Act into S. 510. These provisions would add 
personnel to detect, track, and remove smuggled food, call for the 
development and implementation of strategies to stop food from being 
smuggled into the United States, and require data sharing amongst 
Federal agencies dealing with food safety and foodborne illnesses. I am 
thankful that this important issue is being addressed so that mothers 
and fathers across the Nation won't have to be concerned when they pack 
their children's lunches, sit down to eat a family dinner, or give 
their child a snack.
  In the Senate, we owe it every American consumer to make needed 
improvements to our food safety system before another outbreak sickens 
our citizens, and we need to make sure that we are vigilant and 
vigorously monitor and update our food safety system so that Americans 
can continue to be confident that the food they eat is safe.
  Mr. GREGG. Mr. President, I rise to speak briefly about S. 510, the 
FDA

[[Page S8266]]

Food Safety Modernization Act, which we will be voting on today.
  This bill incorporates the best ideas from food safety experts, 
farmers, small business owners, the Bush administration's Food 
Protection Plan, the Obama administration's Food Safety Working Group, 
and Members on both sides of the aisle.When enacted, it will transform 
America's approach to food safety by emphasizing prevention and by 
strengthening our capacity to detect and rapidly respond when food 
safety emergencies occur in the future.
  I would especially like to thank Senator Durbin for all of his 
efforts on the issue of food safety and his commitment to working on 
this issue in a bipartisan manner. We originally teamed up to begin 
this effort in the spring of 2008, and after numerous drafts and twist 
and turns, I am hopeful that we are close to getting this bill across 
the finish line.
  None of this would have been possible without a core group of 
bipartisan Members who have helped shepherd this bill since its 
inception. Senator Burr has been a key leader on food defense issues 
and has worked tirelessly to ensure that this bill is not burdensome 
for small farmers and food producers. Senator Dodd, along with Senator 
Alexander, contributed greatly to the bill as a whole, and were 
instrumental in providing a key provision relating to the need for 
schools to be more prepared to protect children with life-threatening 
food allergies.
  We have also been extremely fortunate to have the tireless support of 
both Chairman Harkin and Ranking Member Enzi, who assisted in moving 
the bill through the HELP Committee with unanimous support roughly a 
year ago, and who, in the last year have helped us navigate our way to 
the floor.
  Finally, I would like to thank our staffs who have put so much time 
into this legislative effort. Although it has been a long and sometimes 
arduous process, they have shown time and again that almost every 
problem is solvable when you get a group of hard working folks around a 
table. I would like to especially recognize and thank my own lead 
staffer on this bill, Liz Wroe, as well as the following:
  Dave Lazarus, Candice Cho, and Albert Sanders with Senator Durbin; 
Jenny Ware, Jenn Alton, Josh Martin, Margaret Brooks, and Anna Abram 
with Senator Burr; Jenelle Krishnamoorthy, Tom Kraus, and Bill 
McConagha with Senator Harkin; Amy Muhlberg, Travis Jordan, Keith 
Flanagan, and Chuck Clapton with Senator Enzi; and Tamar Magarik Haro 
and Anna Staton with Senator Dodd.
  Mr. LEAHY. Mr. President, the Senate is poised to pass the FDA Food 
Safety Modernization Act, which will take much needed and long overdue 
steps to protect Americans from unsafe food. I am disappointed that the 
Senate will not consider, however, an important amendment I proposed 
that would have held criminals who poison our food supply accountable 
for their crimes. My amendment would have greatly strengthened the 
ability to deter outrageous conduct that puts Americans at risk. It 
received unanimous, bipartisan support when it was reported by the 
Judiciary Committee as the Food Safety Accountability Act. It is 
unfortunate that, despite this bipartisan support in committee, 
Republican objections prevented the amendment from being considered by 
the full Senate.
  This legislative proposal would increase the sentences that 
prosecutors can seek for people who knowingly violate our food safety 
laws in those cases where there is conscious or reckless disregard of a 
risk of death or serious bodily injury. If it were passed, those who 
knowingly contaminate our food supply and endanger Americans could 
receive up to 10 years in jail.
  Just this summer, a salmonella outbreak caused hundreds of people to 
fall ill and triggered a national egg recall. The cause of the outbreak 
is still under investigation, but salmonella poisoning is too common 
and sometimes results from inexcusable knowing conduct. The company 
responsible for the eggs at the root of this summer's salmonella crisis 
had a long history of environmental, immigration, labor, and food 
safety violations. It is clear that fines are not enough to protect the 
public and effectively deter this unacceptable conduct. We need to make 
sure that those who knowingly poison the food supply will go to jail. 
This amendment would have done that in the most egregious cases.
  Current statutes do not provide sufficient criminal sanctions for 
those who knowingly violate our food safety laws. Knowingly 
distributing adulterated food is already illegal, but it is merely a 
misdemeanor right now, and the Sentencing Commission has found that it 
generally does not result in jail time. The fines and recalls that 
usually result from criminal violations under current law fall short in 
protecting the public from harmful products. Too often, those who are 
willing to endanger our children in pursuit of profits view such fines 
or recalls as merely the cost of doing business.
  Last year, a mother from Vermont, Gabrielle Meunier, testified before 
the Senate Agriculture Committee about her 7-year-old son, Christopher, 
who became severely ill and was hospitalized for 6 days after he 
developed salmonella poisoning from peanut crackers. Thankfully, 
Christopher recovered, but Mrs. Meunier's story highlighted 
improvements that are needed in our food safety system. No parent 
should have to go through what she experienced. The American people 
should be confident that the food they buy for their families is safe.
  After hearing Mrs. Meunier's account last year, I called on the 
Department of Justice to conduct a criminal investigation into the 
outbreak of salmonella that made Christopher and many others so sick. 
In that case, the outbreak was traced to the Peanut Corporation of 
America. The president of that company, Stewart Parnell, came before 
Congress and invoked his right against self-incrimination, refusing to 
answer questions about his role in distributing contaminated peanut 
products. These products were linked to the deaths of 9 people and have 
sickened more than 600 others.
  It appears that Mr. Parnell knew that peanut products from his 
company had tested positive for deadly salmonella, but rather than 
immediately disposing of the products, he sought ways to sell them 
anyway. The evidence suggests that he knowingly put profit above the 
public's safety. Our laws must be strengthened to ensure this does not 
happen again. My amendment would increase the chances that those who 
disregard the safety of Americans and commit food safety crimes will 
face jail time, rather than a slap on the wrist, for their criminal 
conduct.
  On behalf of the hundreds of individuals sickened by this summer's 
and last year's salmonella outbreaks, we must repair our broken food 
safety system. The House has already passed a provision similar to my 
amendment. I am sorry that partisan objections from a few Senators 
prevented the Senate from quickly adopting this important amendment. I 
will continue to try to pass this commonsense legislation even if it 
cannot be coupled with the FDA Food Safety Modernization Act, and I 
hope the Senate will act quickly to pass it separately.
  Mr. HARKIN. Mr. President, one of the most difficult issues I have 
had to face as manager of S. 510 is the balance between small growers 
and processors and larger producers and food companies. This is always 
a tough issue in agriculture. Those of us who work with our food system 
know that one size does not fit all. It is always hard to get it right.
  In this case, I know that some of my colleagues think the Tester-
sponsored language goes too far to help small growers and processors. I 
don't think we have, and here is why I say that. There are some very 
important limitations on the Tester provisions in S. 510. First, small 
businesses as we define them here are really small--a company that does 
$500,000 of sales a year is very small. We can't say exactly how much 
food these small companies sell, but here is a good example that shows 
how small these eligible companies are: The smallest member of the 
California League of Food Processors reports between $2.5 and $3 
million a year in sales or five times as much as any company eligible 
under the Tester provisions.
  Second, many food companies that buy product from eligible producers 
will tell them: Hey I want you to follow FDA regulations. I want all my 
suppliers to follow FDA rules. Some may even require their suppliers to 
do

[[Page S8267]]

more than FDA requires. That decision is part of a private contractual 
relationship. This bill does not affect these arrangements. They will 
continue to exist and will limit the application of any exemptions 
provided in this bill.
  Third, processors that want to be exempted will have to document that 
they meet the exemption. There are two ways to do that. First, they 
must show they are in compliance with State law or second, they must 
show that they have completed a food safety plan of their own. Many 
processors will simply decide that for competitive reasons or lack of 
capacity they will simply stick with whatever FDA requires. This is 
another pragmatic limitation on the Tester provisions.
  Fourth and finally, FDA is specifically authorized to take action and 
revoke an exemption if it determines that the food presents a public 
health risk, and FDA can act to prevent an outbreak if needed. This 
provision creates a ``one-strike-you are out'' exemption: once a farm 
or food processing facility has lost its exemption, it may never be 
reinstated.
  Mr. President, it is not the intent of this legislation to include in 
the definition of ``facility,'' for purposes of either FFDCA Sec. 415 
or for the pending bill, seed production or storage establishments as 
long as they do not manufacture, process, pack, or hold seed reasonably 
expected to be used as food or feed. Further, we note that seeds not 
used as food or feed have historically not been subject to oversight by 
FDA.
  The PRESIDING OFFICER. Under the previous order, amendment No. 4715 
is agreed to.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I ask unanimous consent that after 
adoption of the substitute amendment to S. 510 and now, after the third 
reading, the Senate then proceed to Calendar No. 74, H.R. 2751; that 
all after the enacting clause be stricken and the text of S. 510, as 
amended, be inserted in lieu thereof; that no further amendments or 
motions be in order; that the bill, as amended, be read a third time, 
and after the reading of the Budget Committee pay-go letter, the Senate 
then proceed to vote on the passage of H.R. 2751, as amended; further, 
that the title amendment, which is at the desk, be considered and 
agreed to.
  The PRESIDING OFFICER. Is there objection?
  Mr. COBURN. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Under the previous order, the clerk will read the pay-go statement.
  The legislative clerk read as follows:

       Mr. Conrad: This is the Statement of Budgetary Effects of 
     PAYGO Legislation for S. 510, as amended.

       Total Budgetary Effects of S. 510 for the 5-year statutory 
     PAYGO Scorecard: $0.
       Total Budgetary Effects of S. 510 for the 10-year Statutory 
     PAYGO Scorecard: $0.

       Also submitted for the Record as part of this statement is 
     a table prepared by the Congressional Budget Office, which 
     provides additional information on the budgetary effects of 
     this Act, as follows:

CBO ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS FOR SENATE AMENDMENT 4715 IN THE NATURE OF A SUBSTITUTE TO S. 510, FDA FOOD SAFETY MODERNIZATION ACT
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             By fiscal year, in millions of dollars--
                                         ---------------------------------------------------------------------------------------------------------------
                                            2011     2012     2013     2014     2015     2016     2017     2018     2019     2020   2011-2015  2011-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Net Increase or Decrease (-) in the Deficit
 
Statutory Pay-As-You-Go-Impact a........        0        0        0        0        0        0        0        0        0        0         0          0
--------------------------------------------------------------------------------------------------------------------------------------------------------
a S. 510 would increase federal efforts to ensure the safety of commercially distributed food. S. 510 would stipulate that the failure to comply with
  new requirements, such as mandatory recalls and risk-based preventive controls, could result in the assessment of civil or criminal penalties.
  Criminal fines are recorded as revenues, then deposited in the Crime Victims Fund, and later spent. Enacting S. 510 could increase revenues and direct
  spending, but CBO estimates that the net budget impact would be negligible for each year.
Source: Congressional Budget Office.

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
cloture motion with respect to the bill is withdrawn and the question 
is on passage of S. 510, as amended.
  Ms. LANDRIEU. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond) and the Senator from Kansas (Mr. Brownback).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 73, nays 25, as follows:

                      [Rollcall Vote No. 257 Leg.]

                                YEAS--73

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Dodd
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Grassley
     Gregg
     Hagan
     Harkin
     Inouye
     Johanns
     Johnson
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--25

     Barrasso
     Bennett
     Bunning
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Graham
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     McCain
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Wicker

                             NOT VOTING--2

     Bond
     Brownback
      
  The bill (S. 510), as amended, was ageed to.
  Mr. HARKIN. Mr. President, I move to reconsider the vote and move to 
lay that motion upon the table.
  The motion to lay upon the table was agreed to.

                          ____________________