[Congressional Record Volume 157, Number 72 (Tuesday, May 24, 2011)]
[Senate]
[Pages S3263-S3265]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     PATRIOT SUNSETS EXTENSION ACT

  Mr. MERKLEY. Mr. President, I rise to address the 4-year extension of 
the PATRIOT Act and to oppose that extension if the bill is not 
modified.
  I want to take us back to the principles on which our Nation was 
founded and, indeed, before our Declaration of Independence and before 
our Constitution when there was a deep tradition of the right of 
privacy. Let's take William Pitt's declaration in 1763. He said:

       The poorest may, in his cottage, bid his defiance to all 
     the forces of the Crown . . . the storm may enter; the rain 
     may enter. . . . But the King of England may not enter.

  It is the philosophy embedded in William Pitt's declaration of the 
sanctity of a man's home that underwrote the principle of the fourth 
amendment. That reads as follows:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures, shall not be violated, and no Warrants shall 
     issue, but upon probable cause, supported by Oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.

  The fourth amendment is powerful protection of personal privacy from 
the overreach of government. How does that compare in contrast to the 
PATRIOT Act that is before us?
  Let me tell you the standard that is in the PATRIOT Act for the 
government to seize your papers, to search your papers, and that 
standard is simply ``relevant'' to an ``investigation.'' Relevant to an 
investigation? That is the legal standard set out in the PATRIOT Act. 
That is a standard that was written to be as broad and low as possible. 
What does it mean to be ``relevant'' to an investigation? It certainly 
isn't something as strong as probable cause, which is in the fourth 
amendment. It certainly isn't describing the place to be searched, the 
persons and things to be seized. Indeed, the word ``relevant'' doesn't 
have a foundation of legal tradition that provides any boundaries at 
all.
  Let's take the term ``investigation.'' ``Investigation'' is in the 
eye of the beholder. I want to look into something, so that is an 
investigation. What happens to these words in the PATRIOT Act, in the 
section of the PATRIOT Act that addresses the sweeping powers to 
investigate Americans down to the books they check out, their medical 
records, and their private communications? Quite simply, there is a 
process in theory in which a court, known as the FISA Court, makes a 
determination, but they make the determination upon this standard--that 
this standard is ``relevant to an investigation.''
  Now, the interpretation of that clause is done in secret. I would 
defy you to show me a circumstance where a secret interpretation of a 
very minimal standard is tightened in that secret process. But we don't 
know because we are not being told.
  This is why I support Senator Wyden's amendment. Senator Wyden has 
said we should not have secret law--secret interpretation of clauses 
that may result in the opposite of what we believe is being done. That 
is a very important amendment. But that amendment will not be debated 
on the floor of the Senate. It won't be debated because a very clever 
mechanism has just been put into play to prevent amendments from being 
offered and debated on the floor of the Senate on the 4-year extension 
of the PATRIOT Act. Quite frankly, I am very disturbed by that 
mechanism--a parliamentary move in which a House message is brought 
over and the regular bill is tabled, and that message will then have 
the regular PATRIOT Act put into it as a privileged motion, and it will 
be returned to the House. The effect therein is, because the tree has 
been filled, which is parliamentary-speak for ``no amendments will be 
allowed,'' we won't get to debate Senator Wyden's amendment.
  There are a number of Senators who have proposed to change this 
standard--the standard ``relevant to an investigation''--to make it a 
legally significant standard and make sure it is not being secretly 
interpreted to mean almost nothing. But we won't have a

[[Page S3264]]

debate in this Senate over changing that low and insignificant standard 
into a meaningful legal standard with teeth in it, that has court cases 
behind what it means and interpretations that will protect us.
  There is no question that every Member of this Chamber has an 
enormous sense of responsibility in the security of our Nation. In that 
sense, there is significant feeling on every person's part that we need 
to enable our intelligence services, our military, to do the necessary 
work to protect our Nation. But that does not mean we should avoid 
having a debate about whether the PATRIOT Act, as written today, 
without an amendment, rolls over the top of the fourth amendment of the 
Constitution of the United States of America.

  We can have both personal privacy and a high standard, as set out in 
the fourth amendment, for the seizure of papers and security. Those two 
things are not at war with each other. We have had two centuries in 
this Nation of embracing the twins of personal privacy and security. We 
have made that work. We can continue to make it work.
  I rise in protest about the process unfolding in the Senate in which 
amendments will not be presented and will not be debated. I rise to say 
the fourth amendment matters; that it sets a significant standard 
against unreasonable seizures and searches, and that the PATRIOT Act, 
as written, does not provide a clear implementation of the fourth 
amendment, a clear protection of the fourth amendment.
  I will close by noting it has been nearly 250 years since William 
Pitt declared:

       The poorest may, in his cottage, bid his defiance to all 
     the forces of the Crown . . . the storm may enter; the rain 
     may enter . . . but the King of England may not enter.

  Let us have a debate in this Chamber about modifications that protect 
our security but that hold faith with the principle William Pitt 
enunciated and with the principles we have adopted in the fourth 
amendment to the Constitution; that the right of the people against 
unreasonable searches and seizures shall not be violated.
  I yield the floor, and I 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. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.


                               The Budget

  Mr. DURBIN. Mr. President, last week, the chairman of the House 
Budget Committee, Paul Ryan of Wisconsin, came to Chicago to speak to 
the Economic Club and to articulate his vision--the Republican vision--
on how to reduce our Nation's debt. It was an interesting speech 
because Congressman Ryan's budget--the Republican budget, which passed 
the House of Representatives--has become an object of debate and 
controversy.
  I know Congressman Ryan. We served together on the President's 
deficit commission. I know he is a very thoughtful and learned and 
sincere individual, but I certainly have to say his approach to dealing 
with our budget deficit is one I believe falls short of the mark. It 
would seem to me, if we are serious about our deficit--and we should 
be--we should acknowledge the fact that for every $1 we spend in 
Washington, we borrow 40 cents. That is unsustainable, and we have to 
address it.
  We should also look at the grim, recent reality of our budget. When 
President William Jefferson Clinton left office a little over 10 years 
ago and handed the keys to the White House over to President George W. 
Bush, the accumulated net debt of America was $5 trillion--$5 trillion. 
Eight years later, in the next transfer of power, when President George 
W. Bush transferred power to President Obama, America's accumulated net 
debt had reached a new level of $11 trillion, more than doubled in an 
8-year period of time.
  Ask yourself: How could that occur? Well, the answers are fairly 
obvious. When you wage two wars and don't pay for them, when you cut 
taxes in the midst of a war--the first time that has ever happened in 
our history--and when you pass programs that are not paid for, it adds 
to our debt. That is what happened.
  President Obama inherited a dramatic increase in the national debt 
and a very weak economy, losing hundreds of thousands of jobs a month. 
Now we find we are even deeper in debt--closer to $14 trillion because 
of this recession, despite the best efforts of Congress and the 
President to turn it around. We know that has to change.
  The major creditor of the United States is China, and it is also our 
major competitor. Those two realities force us to look honestly at this 
deficit. I take exception to the approach the Republicans use in their 
deficit reduction plan, because when I took a look at Congressman 
Ryan's budget--the Republican budget--I find, at the end of the day, it 
nominally cuts spending by $4 trillion over a 10-year period of time. 
Yet it only cuts $8 billion a year out of the Defense budget. The 
Defense budget of the United States is over $500 billion every year, 
and they could only find $8 billion a year to cut? Not a very serious 
undertaking.
  They raise no new revenues to help pay down the debt, while they 
dramatically cut taxes for the wealthiest people and companies in 
America. In the name of deficit reduction, the Republican budget would 
cut the top tax rate of the wealthiest individuals and corporations to 
25 percent. The Tax Policy Center estimates this would reduce tax 
revenues by $2.9 trillion over the next 10 years, and virtually all the 
tax savings from that change would go to households making an annual 
income of over $200,000 a year.
  What does a multitrillion dollar tax cut have to do with deficit 
reduction? Congressman Ryan, in his speech in Chicago, criticized the 
Democrats for engaging in class warfare, as if it is somehow 
inappropriate to point out that the Republican budget proposes a 
massive shift in wealth from the poor and middle class to those who are 
better off. Warren Buffett, CEO of Berkshire Hathaway--seer of Omaha--
answered that criticism best a few years ago when he said:

       There is class warfare, all right. But it is my class, the 
     rich class, that is making war and winning.

  That is what happens with the Republican budget.
  Then there is the issue of health care--an issue near and dear to 
every single American. A serious budget plan would address the largest 
cause of the projected long-term debt for the Federal Government--
health care--by allowing dozens of cost-containment provisions in the 
affordable care act to take effect and then by finding even more to 
reduce the cost to the system. But the House Republican budget plan 
does the opposite. It repeals all the cost-containment mechanisms, 
which the Congressional Budget Office says in so doing will raise the 
debt of America.
  Then the Republican budget goes a step further. It ends Medicare and 
Medicaid, as we know them--programs that have served America. Their 
budget would transform programs that seniors and the poor count on 
today to provide adequate health insurance and to programs that help to 
cover just some of the costs, leaving the rest of the bills to the 
families, individuals, and State governments. All that the Republican 
budget plan does under the banner of health care reform is to shift the 
cost of health care from American families who are paying taxes to 
other American families who are paying taxes in the private market. It 
would do nothing to reduce health care costs as a whole.
  It is fair to ask me at this point: Well, if you are going to 
criticize the Republican budget, what do you suggest? I will tell you 
what I suggest. I have sat around for 4-plus months now, with five of 
my Senate colleagues in both political parties, working on these ideas. 
What I think is the path to a reasonable deficit reduction is one that 
literally involves shared sacrifice, where every American has to be 
prepared to step up and accept the reality that things will change.
  There is one demographic reality that overshadows this conversation. 
Since January 1 of this year, every day 9,000 Americans reach the age 
of 65. That trend will continue for 19 more years. That is the baby 
boom generation. If you will do the math, you will see a dramatic 
increase in people under

[[Page S3265]]

Social Security and Medicare, as those children born immediately after 
World War II reach retirement age. That is a reality.
  What do we do about it? First, we make sure Social Security can be 
counted on. Social Security does not add one penny to our Nation's 
debt. It is a separate fund. It will make every promised payment for 
another 25 years, with a cost-of-living adjustment, but then runs into 
trouble. You will see a reduction--if we don't do something in the 26th 
year--by over 20 percent for each benefit payment. Unacceptable. So we 
should think in honest terms about what we do today--small changes we 
can make today in Social Security--which, when played out over 25 
years, like the miracle of compound interest, will buy us an even 
longer life in Social Security.
  I think there are reasonable ways to do that. For example, when we 
passed Social Security reform in 1983, we said 90 percent of wages in 
America should be subject to Social Security taxation. Over the years, 
by not raising the ceiling on wages that could be taxed for Social 
Security, we have fallen behind in the 90-percent standard. I think we 
are close to 84 percent now. If we were to go back to the 90-percent 
standard, which I think is reasonable, and raise the eligible income in 
America for Social Security deductions up to 90 percent, it will move 
us toward solvency--more solvency--for Social Security. It is money 
that will not be used to reduce the deficit but will be used to invest 
in Social Security. I think that makes sense.
  There are other changes we can do that are reasonable. We also have 
to look at Medicare and Medicaid and acknowledge the obvious. The cost 
of health care is going up too fast. We can't keep up with it, neither 
can State governments, local governments, businesses, unions or 
families. So the cost containment in health care reform is just the 
beginning, but we need to continue the conversation, and we need 
spending cuts.
  Let's be very honest about it. We have taken a pretty significant cut 
in domestic discretionary spending just this year--even more than the 
Bowles-Simpson commission envisioned. There is some risk associated 
with spending cuts in the midst of a recession. But now we need to ask 
the defense or military side of discretionary spending to also make 
some sacrifice.
  I think one obvious way is to start bringing our troops home from 
overseas--bring them home from Iraq. It is estimated it costs us $1 
million per year for every soldier in the field--for all the support 
that goes into training and sustaining and protecting our men and women 
in uniform, which we must do. It is an expensive commitment. As we 
reduce our troop commitments overseas, the amount of money being spent 
through the Pentagon will be reduced as well.
  We need to take a close look at all the private contractors working 
for the Pentagon. We had a hearing of this deficit commission and asked 
the expert: Can you tell us how many employees there are at the 
Department of Defense--civilian, military--how many private contractors 
are working for the Department of Defense? The expert said: I have no 
idea. I can't even get close to giving you an estimate, but it is a 
dramatically larger number. We can reduce that spending, and we should.
  The point I am making is that after we have taken care of the 
entitlement programs and the spending issues, that isn't enough. We 
need to talk about revenue--revenue that can be brought into deficit 
reduction. Every year our Tax Code gives deductions and credits, 
exclusions and special treatment that account for $1.1 trillion that 
would otherwise flow to the Treasury. Instead, it is money that isn't 
paid into taxes and into our government. We can reduce that tax 
expenditure and do it in a fair fashion by reforming the Tax Code in a 
meaningful way--as the Bowles-Simpson commission suggested, bring down 
tax rates as part of this conversation.
  That, to me, is a reasonable approach. It parallels what was done in 
the Bowles-Simpson Commission, putting everything on the table and 
reducing our deficit over the next 10 years by at least $4 trillion. I 
think we can do it, and we should do it on a bipartisan basis.
  The Republican budget plan, unfortunately, takes the wrong approach. 
The House Republicans have proposed, among other things, a fundamental 
change in how we pay for health care. It turns Medicaid into a block 
grant program, and it eliminates the affordable health care act. One of 
the sources of pride we all shared was the notion that 30 million 
Americans currently uninsured would have insurance protection under the 
affordable health care act. What the Republicans do in repealing it is 
to add to the number of uninsured in America, thus making it clear they 
have no place to turn in their extreme situations but to Medicaid. So 
on top of eliminating the affordable health care act, adding to the 
number of uninsured Americans, the Republican plan then limits the 
amount of money to spend on Medicaid. The net result is more and more 
people uninsured seeking Medicaid help with no funds to pay for their 
medical treatment. That is not a good vision for the future of America.
  We had a presentation today at our Democratic caucus lunch. The 
presentation was made by Senator Kent Conrad, the chairman of our 
Budget Committee. He and Senator Stabenow of Michigan talked about what 
the Medicare changes would mean in America, and what it basically means 
is the average senior citizen, under the Republican budget plan, will 
see their Medicare benefits cut and will find their out-of-pocket 
expenses to maintain current Medicare protection double--over $12,000 a 
year.
  There are many seniors in Oregon and Illinois and across the Nation 
on fixed incomes. That is not a reasonable alternative--$1,000 a month 
on Medicare insurance premiums? That is the Republican budget plan. It 
is not a reasonable way to deal with our future challenges in health 
care.
  We will have a chance to vote this week on the Republican budget 
plan, and it will be interesting to see how many on the other side of 
the aisle want to support the approaches I have just described. 
Already, some of them have announced they will not. They think it goes 
too far. I do too.
  I hope we can reject the House Republican plan on a bipartisan basis, 
but then let's come together in a bipartisan fashion and try to find a 
reasonable way to deal with this deficit. I hope we will use the 
Bowles-Simpson Commission as a starting point because I think it is a 
good one. Let's maintain some fealty toward our values, our values as a 
country that take care of the vulnerable whom we will always have among 
us, and make a pledge that our Tax Code will be progressive so working 
families have a fighting chance, and try to at least share the burden 
of sacrifice in a reasonable and just manner.
  Those who are better off should pay more. Those who are less well off 
should pay less. I don't think that is an extreme position. I think it 
is a sensible, humane position.
  Our debate begins this week on the budget. We have a great challenge 
ahead of us. I hope some of the work we did on the deficit commission 
will help us reach a positive conclusion.
  I 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. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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