[Congressional Record Volume 157, Number 157 (Wednesday, October 19, 2011)]
[Senate]
[Pages S6716-S6753]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND 
         RELATED AGENCIES APPROPRIATIONS ACT OF 2012--Continued


                           Amendment No. 739

  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes of debate equally divided between the Senator from Arizona, Mr. 
McCain, and the Senator from California, Mrs. Boxer, or their 
designees.
  Mrs. BOXER. Mr. President, could we have order?
  The PRESIDING OFFICER. I ask for order.
  Mrs. BOXER. The reason I asked for order is because this amendment 
affects each and every one of you and

[[Page S6717]]

your constituents. The McCain amendment says to the States that they 
cannot use a certain section of the transportation bill for several 
things, including scenic or historic highway programs, including 
tourist centers, landscaping, or scenic beautification, historic 
preservation, and it goes on.
  The point I want to make is this amendment is opposed by the National 
Association of Counties, the American Association of State Highway 
Transportation Officials, the National League of Cities, the National 
Trust for Historic Preservation, and the U.S. Travel Association. That 
is a nonpartisan list, and let me tell you why. The way this amendment 
is drafted, historic bridges could never even be repaired. The Brooklyn 
Bridge or other historic bridges could not be repaired and we could not 
control erosion. We would have major problems.
  I move to table the McCain amendment.
  The PRESIDING OFFICER. That motion is not in order while time is 
remaining.
  The Senator from Arizona has 1 minute.
  Mr. McCAIN. Mr. President, I have made the argument that these 
projects are unnecessary. We have tens of thousands of bridges that are 
deficient. We need to spend the money where it should be spent, and I 
hope my colleagues will understand that this might have been 
appropriate some time ago, but in this day and age, with our crumbling 
infrastructure, we need to put the money in the right place.
  I yield the remainder of my time.
  Mrs. BOXER. Mr. President, I move to table McCain amendment No. 739, 
and I ask for the yeas and nays.
  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. DURBIN. I announce that the Senator from Wisconsin (Mr. Kohl) is 
necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Georgia (Mr. Isakson).
  Further, if present and voting, the Senator from Georgia (Mr. 
Isakson) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 59, nays 39, as follows:

                      [Rollcall Vote No. 170 Leg.]

                                YEAS--59

     Akaka
     Alexander
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Hoeven
     Inhofe
     Inouye
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--39

     Ayotte
     Barrasso
     Brown (MA)
     Burr
     Chambliss
     Coburn
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hutchison
     Johanns
     Johnson (WI)
     Kyl
     Lee
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Thune
     Toomey
     Udall (CO)
     Vitter
     Wicker

                             NOT VOTING--2

     Isakson
     Kohl
      
  The motion was agreed to.
  Mrs. BOXER. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Iowa.


       Unanimous Consent Request--Authority for Committee to Meet

  Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee 
on Health, Education, Labor, and Pensions be authorized to meet in 
executive session during the session of the Senate on Wednesday, 
October 19, 2011, in Dirksen Room 106, for the consideration of a bill 
to reauthorize the Elementary and Secondary Education Act.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Kentucky.
  Mr. PAUL. Mr. President, reserving the right to object, I find it a 
tragedy that in the Senate we are operating in a way that allows an 
868-page bill to be offered with only 48 hours to read it and 
approximately 1,000 pages' worth of amendments to this bill with 
virtually no time to even think about the amendments. I think it is 
precisely what is wrong with this body, that we would try to rush 
things through.
  I have been here since January, and there have been no hearings on No 
Child Left Behind. I have had no hearings that involve teachers, no 
hearings that involve superintendents, no hearings that involve 
principals. I think this is an affront to the process.
  As I go around my State and I talk to teachers, I have yet to meet 
one teacher who is in favor of No Child Left Behind. They abhor it. 
They hate all the stuff we are telling them to do from Washington. They 
want more local control.
  I am one of the old-fashioned conservatives who believes that schools 
are and should be under local and State control. There is no provision 
in the Constitution for the Federal Government to be involved, period. 
This was part of the Republican platform for nearly 30 years, that we 
didn't believe in Federal control; we wanted to have local control.
  I met with six teachers recently from Marion County. Some of them are 
special ed teachers. They like what they do. They like teaching kids 
who have difficulty learning and have to be taught in a different 
fashion in order to get through to these kids. But they showed me a 
cute little boy of 15 years old who has a three-word vocabulary. He was 
tested in world geography and then the teacher was told she is a bad 
teacher because the child, who has a three-word vocabulary, did poorly 
on testing.
  This is insane, and it needs to be discussed in a rational fashion. 
We need to have teachers involved in the process, for goodness' sakes, 
principals, superintendents.
  I have a letter here from the American Association of School 
Administrators, the National Association of Elementary School 
Principals, the National Education Association, the National School 
Boards Association, and the National Association of Secondary School 
Principals, and they said:

       We . . . hope that the important work of getting policy 
     right will not be pushed to the side in a race against the 
     clock. . . .

  I feel pushed aside--an 868-page bill and 48 hours to read it. It is 
wrong. All I am asking for is a hearing to listen to teachers--should 
we not listen to the teachers--a hearing to listen to the 
superintendents, a hearing to listen to the principals. Let them read 
the bill and find out what is in the bill.
  I am not going to accept what Nancy Pelosi said: You can read about 
it after the fact. That is the process that is going on here. Mr. 
President, 868 pages--when are we going to read it? After they pass it. 
Who has been involved in crafting this legislation? I am on the 
committee. Nobody asked me. Nobody consulted with me. And I think that 
is the same with most of the people on the committee.
  The letter from this group also says:

     . . . we note that the proposed law . . . is still heavily 
     reliant on the idea of testing every child, every year 
     through one single high-stakes summative assessment. . . .

  There are many problems. I would be in favor of getting rid of No 
Child Left Behind. No teachers are for it. I would like to see a survey 
of teachers. I would like to have the teachers do a survey of their 
population to ask who is in favor of No Child Left Behind before we 
act. I would like teachers to propose amendments to my office to fix No 
Child Left Behind if we are not going to scrap it. I would like to hear 
from the superintendents: What do you think of this 868-page bill we 
got yesterday or on Monday? What do you think of this bill, and how 
could we make it better?
  We will not have time to hear from them because we are struggling to 
get through the 868 pages and another thousand pages of amendments. 
This process is rotten from the top to the bottom.
  What I would ask for is that we have a hearing. Let's invite teachers 
to

[[Page S6718]]

Washington, let's invite superintendents, let's invite principals to 
Washington. Let's find out what they think of No Child Left Behind 
before we rush through an 868-page bill that no one has had time to 
read. This is what is wrong with Washington. This is the type of 
arrogance about the way Washington works that is really making us 
unpopular in the public's eyes.
  I say fix No Child Left Behind. I say repeal it or fix it, but at 
least give us time to read the bill.
  I object to this unanimous consent request.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). Objection is heard.
  The Senator from Iowa is recognized.
  Mr. HARKIN. Mr. President, I am sorry the Senator from Kentucky is 
objecting to our meeting.
  I say to my friend from Kentucky, the one thing I believe both 
Senator Enzi and I did and other members of our committee on both sides 
of the aisle did to get this bill to where it is was to put aside 
ideology--to put aside ideology--to do what is best for our kids.
  I believe the HELP Committee--on both sides of the aisle, Senator 
Enzi and I on both sides--has done everything possible to move the bill 
in a considerate, logical legislative manner. We started on this last 
year. I say to my friend from Kentucky, we had 10 hearings last year--
10 good, long hearings. We had superintendents. We had teachers. We had 
principals. We had broad input from across America as to what they 
wanted in a reauthorization bill. I am sorry the Senator was not here 
last year, but the Senate is a continuing body. Does that mean every 2 
years we have to start all over from scratch every time? So we had all 
our hearings last year. And that was cleared again with Senator Enzi 
and me. We talked about: Well, lets get the hearings out of the road, 
and this year we could focus on putting the bill together. So we had 
our hearings. I say to my friend, we brought in teachers, principals, 
superintendents from all over America.
  Then, starting in January, we began a time-honored process whereby 
the chair and ranking member started working on putting the bill 
together with our professional staff. That is why we have professional 
staff. Senator Alexander was involved in that. Other Senators were 
brought in--Senator Bennet, Senator Franken. Others on the Republican 
side were brought in on that.
  I would say this: The Senator from Kentucky had every day since he 
was sworn in in January to come to me or go to Senator Enzi and say: I 
am on the committee. Here is what I would like in the bill. And that 
would have been considered. Other Senators did that. I see two of them 
sitting here right now who came and said: Here is what I would like to 
have in the bill.
  Well, I sat down with Senator Enzi. We discussed it. Some yes, some 
no, some modifications--we would work it out through the process as we 
went through. I do not know if the Senator from Kentucky went to see 
Senator Enzi about what he wanted in the bill. I know he did not come 
see me. Our doors are open. There was no secret that we were meeting 
about this. We started in January. Everybody on our committee, the 
staffs, all knew that.
  That is the legislative process. When it was all done, we wanted to 
put together a bipartisan bill. That is what we did. I say to my friend 
from Kentucky, it was not filed 48 hours ago; it was filed a week ago 
yesterday, Tuesday. That bill was filed. It was put online. I put that 
bill online. So we had a whole week to look at it, and, quite frankly, 
what happened is we got feedback. I say to my friend, we put the bill 
online. We got feedback from a lot of people--the community out there--
and as a result of that, we made some final changes. That is the 
legislative process. Senator Enzi and I worked together on a managers' 
amendment to incorporate some of the objections that came in during the 
week to make the bill even more bipartisan. We filed that managers' 
amendment on Monday morning at 10 o'clock. But that was not the whole 
bill. I put the whole bill online a week ago Tuesday. It was just the 
managers' amendment that was, again, a fine-tuning of it before we met 
in markup.
  So I say the Senator from Kentucky had every opportunity to let us 
know what he wanted in that bill, and I never saw him. I never saw him. 
He never came to me. I am on the floor all the time. My door is open. 
My staff is available. My professional staff is available. If the 
Senator from Kentucky had something he wanted in the bill and it was 
not included, he has the right to offer an amendment.
  I wanted this committee to operate in an open manner--in a manner in 
which we have operated in the past legislatively. If the Senator did 
not have something in the bill that he wanted in, he has the right to 
offer an amendment and to debate it and to get a vote on it in our 
committee.
  The Senator has filed 74 amendments. We had 144 amendments filed. 
Under our rules, they had to be filed 48 hours before. The Senator from 
Kentucky filed 74 amendments. Well, now the Senator from Kentucky is 
objecting to our even meeting to consider his own amendments. Please, 
someone, explain the logic of that to the Senator from Iowa. He has the 
amendments. The process is open. He can offer amendments, get them 
debated, get them voted on. But the Senator from Kentucky is objecting 
to us meeting in order to even consider his amendments.
  Secondly, I heard the Senator again on the floor today--and earlier, 
when we met earlier this morning in committee to start our process of 
marking up the bill--he said he wanted to do away with No Child Left 
Behind. That is exactly what this bill does. It gets rid of No Child 
Left Behind and some of the narrow proscriptions and prescriptions in 
the bill and does, in fact, return a lot to local control. And we build 
a partnership with the Federal Government and State and local 
governments--a better partnership than what we have had in the past. I 
think that is why we have a good, bipartisan bill.

  Again, the Senator from Kentucky and I probably have different views 
on this. I understand that. That is why we have the Senate. That is why 
we have debates. That is why we have committee meetings and markups. If 
I were writing the bill, I would write a completely different bill than 
the Senator from Kentucky would write. He would write one completely 
different from mine. That is why we meet in committees. That is why we 
hammer these things out over a long process. You do not just shut the 
door and say: It is my way or no way.
  I am the chairman. I am willing to listen to his amendments and have 
him offer them. But how can I hear his amendments, how can we consider 
his amendments if the Senator will not even allow us to meet under the 
rules of the Senate? I have no logical explanation for that.
  Well, there is a lot more I could say, Mr. President, but this is 
just illogical. That is all I can say: It is just illogical.
  I see the Senator from Colorado on his feet. I yield to the Senator 
from Colorado for any questions he might have.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. BENNET. Mr. President, I have never done this in the 2\1/2\ years 
I have been in the Senate. I have not been here a long time, and I have 
spent a lot of time complaining about the way this place works. But I 
had to come to the floor to implore the Senator from Kentucky to 
reconsider his objection. I do it not because I have a perspective on 
this as a Senator; I do it because I had the honor of serving as the 
superintendent of the public schools in Denver for 4 years of my life 
and have dedicated years of my life but, more importantly, seen the 
dedication of the people who are working in our schools.
  The Senator speaks of the tragedy of this process. I will tell you 
what a tragedy is. A tragedy is that only 9 of 100 children living in 
poverty in this country, in 2011, can expect to get a college degree--
that is a tragedy; the fact that when I became superintendent in the 
Denver public schools, on the 10th grade math test, there were 33 
African-American students proficient on that test and 61 Latinos 
proficient on that test--the test that, if we are honest with 
ourselves, which we are not, measures a junior high school standard of 
mathematical proficiency in Europe. That is a tragedy. It is a tragedy 
that there are people working in our schools right now, at 11:15 a.m. 
in Colorado, doing the best they can to serve our kids, and we think a 
2-hour meeting is too long. That is a tragedy.

[[Page S6719]]

  I would not have drafted the bill exactly the way it has been 
drafted. The chairman knows that. He and I even have disagreements 
about some of the things in this bill. But finally, after 2\1/2\ years, 
there is a bipartisan piece of legislation in front of the committee 
that is having the benefit of the work of the Senators who are there, 
and we are told that meeting for 2 hours is too long.
  The Senator has every right to make his objection under the Senate 
rules, which the Presiding Officer has observed may need some updating. 
But I think if you ask yourself, why is it that we have a 12-percent 
approval rating, which is going down, it is because of this kind of 
thing.
  I actually look forward to hearing the amendments of the Senator from 
Kentucky. I wanted to know what they were. As the chairman mentioned, 
there are 146 amendments that have been filed. I have some I have 
filed--only three or four. The Senator from Kentucky has 74 of the 140 
amendments.
  In the 2 hours we met today, we considered three amendments or voted 
on three. We were debating a Republican amendment, and I was very 
interested in what Senator Isakson had to say when our meeting came to 
an end. If we are going to do this in 2-hour increments, my math--I am 
proficient in math, thank goodness--is that it would take 60 days to do 
this in 2-hour increments.
  Do you know why people are fed up with this place? It is because they 
do not think the debate we are having is about them. They think the 
debate we are having is about us. And do you know what. They are right 
about that.
  The teachers all across my State, all across the district I worked 
in, want us to lift this burden from them--in my view, the biggest 
Federal overreach ever in domestic policy. That is what the bill does, 
not for ideological reasons but to help respond to the voices of our 
teachers, respond to the voices of our superintendents, respond to the 
voices of our parents who are sick and tired of the almost comical but 
to them painful measures of annual, yearly progress--the idea that we 
are going to label all our schools ``failing'' by 2014 because we have 
a completely made-up accountability standard in Washington, DC.

  This bill does away with that. It does not do it in exactly the way I 
would want to do it, left to my own devices, but it does it in a way 
that can get bipartisan support in the Senate. I mean this broadly. I 
am not saying it in this case. When people see the political games that 
are being played, when they see people who are unwilling to work 
together, and they are killing themselves to deliver for our kids, I am 
not sure there is anything more backhanded we could do.
  So I would beg the Senator from Kentucky to let us have the hearing, 
the committee meeting. Let us consider his amendments. I and all the 
rest--today's conversation was one of the first--I regret saying this--
one of the first substantive conversations I have had in a committee 
hearing since I have been here.
  I thank the chairman and I thank the ranking member for creating a 
context where that can happen. Let's have the conversation. I would be 
happy to meet 24 hours a day to talk about this subject with the 
Senator from Kentucky--24 hours a day, every day. Because if we care 
about the widening gap between rich and poor in this country, we cannot 
sustain anything remotely approaching our----
  Mr. PAUL. Will the Senator yield?
  Mr. BENNET. I will in 1 second--anything remotely approaching our 
claim to be a land of opportunity when 9 out of 100 children born in 
poverty can graduate with a college degree, when 91 out of 100 children 
who are unfortunate enough to be born poor are constrained to the 
margin of our democracy, the margin of our economy. I will stop here.
  But to be clear about it, there are 100 seats in the Senate. When I 
walk into this room, I think about what if the 100 people who were here 
were children living in poverty in the United States. Here is how many 
would have a college degree. That chair. That chair. That chair. These 
four chairs and this one. That is it. The rest of this Chamber would be 
occupied by people who did not have the benefit of a college degree.
  Mr. PAUL. Will the Senator yield for a question?
  Mr. BENNET. Yes.
  Mr. HARKIN. I believe I have the floor.
  The PRESIDING OFFICER. The Senator from Iowa has the floor.
  Mr. HARKIN. Again, I want--I recognize the Senator wants to speak. 
Let's do this in a logical, orderly manner. If people want to be here 
to speak, I think the Senator from Colorado made some good points. I 
was yielding to him for a question. I would yield if the Senator from 
Minnesota has a question. Then, obviously, the Senator from Kentucky 
will have every right to speak.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Parliamentary inquiry: Under the current structure, how 
long before a Member on this side can be recognized?
  The PRESIDING OFFICER. A Senator cannot be recognized until the floor 
is relinquished.
  Mr. BURR. I thank the Chair.
  Mr. HARKIN. I yield to the Senator from Minnesota for a question.
  Mr. FRANKEN. I thank the chairman for allowing me to ask a question. 
I want to know because I have only been here 2-plus years. But it seems 
to me that actually, from my perspective--this is my perspective--this 
committee has worked in a pretty functional way. It took a long time. 
We started having hearing on this however long ago was it, about a year 
and a half?
  Mr. HARKIN. It started at least a year and a half ago, maybe a year 
and three-quarters.
  Mr. FRANKEN. During this whole period, I talked with the Senator. I 
have asked to see the ranking member and meet with him in his office to 
tell him what I wanted to see in this bill. I agree with the Senator 
from Kentucky, who has talked about there is just one test at the end 
of the year and the kids do not--the teachers do not get to see the 
results until the kids are out the door. I think that is terrible. I am 
offering an amendment that the ranking member referred to today.
  I have gone all around my State since I have been a committee member 
and talked to teachers about what they want to see to fix this or to 
get rid of No Child Left Behind and replace it with something that 
makes sense. That is exactly what we are doing. Is this not the normal 
order of things?
  That is my question.
  I went to Senator Alexander and met with him in his office to explain 
what I wanted. My staff has been meeting every other Member--not every 
other Member's staff but every other Member's staff who seems to be 
engaged in this on both sides of the aisle, with Senator Harkin's 
staff, with the committee staff, with staff from Senator Enzi's office. 
I keep hearing whose staff they are talking to about this piece of this 
amendment or that amendment or this piece is going to be in the 
managers' bill. I think I have spent more time on this bill than on any 
other bill in my time here, and nothing has stopped me from being 
engaged in it. I do not think there is anything that has stopped anyone 
in our committee from going back over the transcripts of the many 
hearings we had. I do that often.
  So my question is: Am I wrong or has this not been conducted in a way 
that is actually, as these things go, pretty functional for any Member 
who wants to be engaged in the process? I think there is a 
responsibility on the behalf of committee members, and is there not a 
responsibility on the behalf of committee members to be active in the 
committee, to come to hearings, to be engaged in the process, to 
approach the chair, to approach the ranking member? Is that not part of 
our responsibility?
  Mr. HARKIN. I say to my friend from Minnesota, I think that is right. 
If the Senator wants to be engaged in the process of legislation, then, 
as I say, the Senator from Minnesota has talked to me many times about 
what he wants in the bill. The Senator from Colorado and even Members 
on the Republican side have talked to me about what should be in the 
bill, what should not be in the bill. That is the process.
  I would say to my friend from Minnesota, I have been chairman twice 
before, not of this committee but of the Agriculture Committee when we 
did major agricultural bills. One was in 2001 and the other one was in 
2007, and

[[Page S6720]]

both times I worked with the ranking members, basically, the same kind 
of process. We got bipartisan bills through that were signed by 
President Bush both times, 2001 and in 2007. This was the process we 
used.

  We let amendments be offered. We opened it up. No one on the 
committee ever raised an objection to our meeting during the Senate 
session. We got our jobs done. That is the way we have always done it. 
That is just the legislative--as I said, considerate, logical 
legislative process. That is the way we have always conducted it. What 
it does is it allows Members--Senators who are interested, as the 
Senator from Minnesota has been so keenly interested in this Education 
bill, to give them time to go to the ranking member, to go to me, to go 
to other Members, to see what they can get in the bill.
  I say to my friend from Minnesota, I am sure we did not put in 
everything the Senator wanted in the bill.
  Mr. FRANKEN. Absolutely not.
  Mr. HARKIN. But I think the Senator has the right to offer the 
amendments in committee.
  Mr. FRANKEN. I wish to thank the ranking member. We talk on the phone 
about this. We have talked over dinner about this bill. I wish to thank 
Senator Alexander, whom I asked to come to his office. We spent a very 
substantive session talking exactly about how I saw this--what was 
wrong with No Child Left Behind and how we could essentially get rid of 
it and solve what it is that every teacher hates about it and what 
principals hate about it and what superintendents hate about it.
  Senator Alexander and I had some disagreements on things. But, man, I 
think we agreed on 80 percent of this. I think I had an 80-percent 
agreement--I mean, that is Senator Enzi's rule. He has this 80-percent 
rule, which is that we agree on 80 percent and we focus on the 20 
percent. I have a 64-percent rule which is that 80 percent of the time 
we agree on 80 percent. We see that Senator Bennet laughed because he 
is proficient at math.
  Mr. HARKIN. I did not know if the Senator from Kentucky wanted me to 
yield to him for a question to get involved in the colloquy or the 
Senator from North Carolina.
  Mr. BURR. I would like my own time.
  Mr. PAUL. I do have a question. Several Senators on the committee 
have said they would be happy to have meetings 24 hours a day. Why do 
we not have a hearing on the bill? Why do we not invite teachers, 
superintendents, and principals? There has been no hearing since the 
last election. There is no reason why we cannot.
  The other question we have and we need to answer is: What do we say 
to the American Association of School Administrators, the National 
Association of Elementary School Principals, the National Education 
Association, the National School Boards Association, and the National 
Association of Secondary School Principals that say: Let's do not get 
pushed aside in this race against the clock.
  I am not opposed to much of what is going to happen with the bill. I 
think No Child Left Behind has many errors and we can fix some of them. 
What I am opposed to is the process of giving us an 868-page bill 
yesterday and saying take it or leave it. We need more time to read the 
bill. We need these organizations that are very interested in 
education--it is their livelihood--to come in and make comments on this 
bill. That would be an open-hearing process. Anything else to me is 
disingenuous.
  Mr. HARKIN. I will yield the floor very soon. I say to my friend from 
Kentucky, I will say again: We put this bill online 1 week ago Tuesday. 
Some of the mail the Senator is talking about, the letters came in 
after that because they read the bill. I think the primary objections 
on all those letters had to do with teacher evaluations and what we 
were going to do in the bill on teacher evaluations.
  That is what we fixed in the managers' amendment that we laid down 
Monday morning. I am told--I have not seen it--but I am told the 
National Education Association, for example, has withdrawn from that 
letter because of the fix we made. That is why we put the bill online.
  I said that earlier. We put it online. A lot of objections came in. 
We modified it in the managers' amendment to move forward on that bill. 
That is exactly how we do it. I say to my friend from Kentucky that we 
have had a whole week.
  Again, my friend filed 74 amendments to the bill. How can you file 74 
amendments if you haven't read the bill? It seems to me that if you 
file 74 amendments, you must have read the bill. I assume that last 
week the Senator must have read the bill and then filed 74 amendments. 
You cannot have it both ways--say I haven't read the bill, but here are 
74 amendments. That doesn't hold together logically.
  Again, I will close on this note. The Senator from Colorado is 
absolutely right. We are here talking about process and who is up, who 
is down, all of this kind of stuff. These teachers out in America who 
are grappling with kids who are under this burden of No Child Left 
Behind and these AYPs, knowing that no matter how much they progress 
their kids in 1 year, they are still failing--this bill relieves them 
of that, takes that yoke off them.
  Every one of us has heard from teachers, parents, and administrators 
that this No Child Left Behind is not good, that it has to be fixed, 
and that is what our bill does. How are we going to change it and fix 
it if we are not even allowed to meet?
  Again, I hope the Senator from Kentucky will allow us to move forward 
in this process and allow us to have our amendment process. I say to my 
friend he has another shot at this bill on the floor. We will have 
committee, and we will come to the floor, and amendments will be 
offered on the floor. That is the legislative process. No one person 
gets to dictate what is in this bill--not me, not Senator Enzi, not the 
Senator from Kentucky. But all working together collaboratively in a 
bipartisan fashion, I think we can move this bill forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. BURR. Mr. President, I say to my colleagues that there were a lot 
of blanket statements about one's level of participation. I have 
negotiated with the chairman of this committee for 9 months on the 
reauthorization of our emergency preparedness and biodefense in this 
country. I know what negotiations are. I know what compromise is. I 
know what commitment of time is. I got this bill last Friday. I will 
find out where it went online, or which copy went online. My staff got 
this bill last Friday. Yes, we have read it. We have eight amendments, 
which is not as voluminous as Senator Rand Paul; but he gets that 
ability, as he gets the ability to be heard.
  The minority's only leverage in this institution is to have an 
opportunity to offer amendments and to debate them. I hear what the 
Senator is saying, but based upon the timeframe you set--you don't get 
the privilege of doing that when you have to deal with the minority.
  I know the chairman, for whom I have deep respect, has been here a 
long time, and he knows it. This could have been something very easily 
worked out with communications on both sides of the aisle. The fact is 
that, as I prepared for this markup, I was told there was an agreement, 
and that agreement meant the chairman and ranking member were going to 
hold this bill intact. There were going to be no exceptions to it. They 
were going to vote to make sure this bill didn't change.
  That doesn't give one a lot of comfort, knowing what the outcome of 
amendments will be regardless of the merit of the amendments. When we 
started this morning, the chairman was very gracious and let me say my 
due for about 5 minutes. I am appreciative of that. I made it very 
clear to Members at that time, the only thing I asked them to do was 
weigh it on the merits of the amendment--my first amendment out of the 
chute, and it was my best shot. I will say right here on the floor, it 
was a damn good amendment. You know what. Lockstep we went down the 
line, and they proved to me that there is a deal.
  You know, the next amendment was offered by Senator Franken. I was 
the first one who stood up and said I disagree with the base text--it 
was offered by both of them--but I will support it. I am in year 17. 
Senator Franken said he spent more time on this bill than any bill 
ever. Boy, if that is the case,

[[Page S6721]]

that is a sad statement about how much time we spend on legislation, 
because you could not have had it more than since last Tuesday, 
according to the chairman himself.
  Mr. FRANKEN. Will the Senator yield for a question?
  Mr. BURR. I will take questions at some point, but I patiently sat 
here waiting for my own time. I will use it, and then I will allow the 
Senator to stand and ask a question.
  In the same statement, there was criticism of the participation. 
Apparently, I or Senator Paul had not spent the time or hadn't devoted 
the time to this particular piece of legislation. I have been working 
on this for years. I think the chairman knows I am passionate when I 
get involved. It is not from a standpoint of a lack of knowledge, it is 
from a standpoint of trying to achieve the right end.
  The chairman said very clearly that we are not going to make this 
perfect out of committee; we are going to have another shot at it on 
the Senate floor.
  Let me remind my colleagues that 55 times in this Congress the 
majority has chosen to fill the amendment tree, meaning that no 
minority Member has had an opportunity to amend the legislation. How 
could I feel good about a truncated markup process that happens 4 days 
after I physically got an 868-page bill, when the caveat that I am 
given is: Oh, but you will have another opportunity to do it on the 
floor? Maybe, maybe not. I don't think the chairman can make an 
assurance to me that we are going to have an open rule on the Senate 
floor that allows unlimited amendments. If he can, I will yield to him 
for that consent. It is above his pay grade. It is above mine, too. 
That decision won't be made by the chairman or ranking member, and it 
won't be made because somebody is trying to perfect the bill.
  I learned a long time ago that coming to the Senate floor and 
screaming doesn't do any good. It wakes people up in the gallery, and 
people at home think this must be important. This is about our kids. 
This is about whether K-12 education works. There is one takeaway we 
can all make: No Child Left Behind was well-intended legislation, and 
it was implemented poorly, embraced by very few. North Carolina 
happened to be a State that received a tremendous amount of waivers. We 
got a waiver from Average Yearly Progress because our State had a 
yardstick that was actually better, and the Secretary of Education 
recognized that. It didn't, through those waivers, change any of the 
Federal intrusion into K-12.
  Let me explain what I mean. We have right now about 93 education 
programs that are authorized; not all of them are funded. If your 
system determines that you can use one of those programs, you can 
access that money. But if there is not a program for what your problem 
is, you don't get a shot at the money. I suggested through legislation 
that we take all of those programs and throw them into two pots and 
give States full flexibility to decide how they use the money.

  This bill--they talk about flexibility. Well, it does eliminate the 
title of 40 programs, and it throws them into 6 new major mega-
education programs--still with the strings. You have to spend it the 
way we design it in Washington, not the way you interpret it at home. 
And for a superintendent, that should not settle real well--flexibility 
versus prescription. One way is Federal intrusion into local education. 
The other is a partnership for education success.
  Having gone with this one-size-fits-all called No Child Left Behind, 
I would think the natural swing would be, gee, if we want to fix 
education, why don't we enlist educators, superintendents, and 
principals in this bill? The 868 pages that we are going to debate--it 
will happen; minority rules can only last so long, and we will be 
marking this bill up and, hopefully, it will come to the floor and we 
will get an opportunity to amend it.
  But incorporated into this bill is 20 pages that define reading. I 
want you to think about that. When the claims are made that this is not 
Federal intrusion, a one-size-fits-all, this bill spends 20 pages 
defining for every local school system what reading is. This is insane.
  I have a simple challenge for my colleagues. What happened about the 
accountability of parents, teachers, principals, elected school boards, 
and community leaders? Healthy communities today have a relatively 
successful K-12 education system. In most cases, it is because 
employers recognize the fact that that is potentially their future 
workforce, and their educational success is that community's success 
for survival and for advancement.
  But what this bill does is say we are going to determine what 
``highly gifted'' is for teachers, and we will determine what success 
or failure is. We are going to take the place of the parent, teacher, 
superintendent, elected officials, and the business community; we are 
going to take that all over.
  From the standpoint of the amount of money, we are still 
participating at about the same level--about 10 percent of the overall 
cost of K-12. But if you don't play by our rules, you don't get our 
programs or our money. I daresay there is not one of us who recognizes 
the fact that every community has a unique problem--where one is a 
school building, the next one is available highly gifted teachers; and 
where one might be the ability to have a second language taught, the 
other might be the passion of Teach for America teachers that 
infiltrate their system.
  I cannot come up--no matter how many pages I write--with a K-12 
education bill that I can honestly say trumps any community's that I 
represent that they could come up with on their own. If anything, I 
know I would be woefully short of what they could do.
  The answer, to me, is let's get them more in charge, empower them 
more, and let's give them greater flexibility. Let's be what we are 
best at--a financial partner in the success of education. As a matter 
of fact, we will take up an amendment at some point that triggers the 
flexibility in the 868 pages. But it is only triggered if a school 
system accepts one of six things. One of those things is actually 
federally mandated firing of the principal or X amount of teachers of a 
failing school.
  How in the world could we put in Federal legislation that you get the 
full flexibility if you are willing to go out and fire the principal or 
20 teachers at a school that has been determined by Washington to be a 
failure?
  This is almost surreal to me. In many ways, it goes way past where No 
Child Left Behind tried to get to, which was creating a measurement 
tool that could be seen by all and judgments made based upon that, 
though it wasn't perfect.
  What my colleague Senator Paul has asked for, quite honestly, is very 
reasonable. Take the bill--the one that we are considering, not the one 
that went up last Tuesday--I got this e-mail while I am standing here, 
which says:

       The original ESE bill was put up on line one week ago. The 
     managers' amendment on Monday. The document explaining the 
     changes was online yesterday.

  So everybody is right. The only problem is what Senator Paul 
described, which was the bill that we are considering right now went up 
on Monday.
  The explanations for the changes went up yesterday. I am sure if 
Senator Paul came up with 74 amendments, his staff has been a little 
busier than mine because they only came up with 7 or 8. But what 
Senator Paul has asked for is very reasonable.
  Take this bill--not a hypothetical bill--and let's have a hearing on 
it--not a markup, a hearing--at whatever speed the chairman can put it 
together, where we bring in actual educators, we bring in 
superintendents or we bring in school board members, maybe we bring in 
a parent. That would be novel.
  I can still remember, when I started 17 years ago, and reading about 
the Washington, DC, schools, my first teacher-parent mentor meeting. I 
remember the expectations I had of a parent who didn't care about a 
fifth grader's future. If they did, why would this child be so 
challenged to read? What I was met with, as I walked in and met with 
that parent, was the parent of a fifth grader who said: Congressman, 
you are my son's only hope. I want him to have so much more than I do.
  I wasn't there because of a government program. I was there because I 
think every child ought to have the opportunity to succeed, and we 
can't write that in a bill. We can't describe for every community how 
they get to success. If we could, No Child Left Behind would have been 
perfect because

[[Page S6722]]

everybody believed it would have that big a change. So you see, this is 
about not just changing a system, it is about creating passion--a 
passion for success.
  I will tell you, passion for success is not taking the Federal 
Government's HR Department--which is pitiful--and saying: Well, let's 
export this to every school in America. That is not the answer. The 
answer is for us to get out of the way and for us to empower those 
local officials to make the changes they need to and for the judgment 
to be of those community leaders and those parents.
  We will have a debate soon on what is highly qualified, and it is 
very proscriptive as to what a highly qualified teacher needs to be. 
But in my definition, highly qualified is a pharmacist who has decided 
they don't want to work in a store anymore and would like to teach 
chemistry in a high school. Unfortunately, under all the Federal 
standards today, that person can't do that because they don't have a 
certificate to do so. We will codify that into law, in 868 pages, and 
all the talented folks we have around the country--who could walk into 
a classroom and not only have the educational foundation to be able to 
teach our students but the passion to want to be there and to say it in 
a way that isn't taught out of a textbook but is learned through their 
occupation--will be gone. It will be gone. Even though that pharmacist 
may not want to compound drugs anymore, if their choice is that or 
retirement, they will retire because we have cut out something that 
would allow them to contribute.
  I didn't mean to go this long, but I will be honest, in my patience 
to get the opportunity to speak, I heard some outlandish comments that, 
quite honestly, I could take to be very personal. To suggest any Member 
had sufficient time to review this legislation--the only person who 
could make that comment would be one who got the bill before I did, and 
I think I am entitled to have it at the same time every other member of 
the committee gets it.
  To have an agreement that says we are not going to take amendments--
that says one can offer them, but we are not going to take them--I 
think that is a black eye on the entire institution, if we would adopt 
a policy such as that. But I have seen it up close and personal 
already.
  I would love to take the chairman at his word that we will have an 
opportunity on the floor to fix this bill, but--based upon how the 
floor has been run up to this time--I can't believe there will be even 
one opportunity for me to offer an amendment. So I have to roll my dice 
on the markup process in committee, and I have to do it in a way that 
accommodates every member. If Senator Paul believes he needs more time, 
I have to be there to try to defend his time.
  If that is inconvenient for people, it is going to be inconvenient. 
The truth is, our children's future is way more important than our 
convenience. Our children's future is way too important to rush a bill. 
Our children's future is way more important than a deal between a 
ranking member and a chairman as to how to make this easy out of 
committee so we can fix it on the floor.
  I have been here 17 years. Perfection is not possible in Congress, 
but perfection should be our goal every day. When we look at what we 
have debated, we understand why less than 15 percent of the American 
people think highly of us. I think what we are getting ready to do will 
have a significant impact on how that number is reduced, not how it is 
increased.
  I thank my colleagues for their patience. They certainly don't have 
to request time from me. I will yield back and gladly allow them 
whatever of their own time they would like to take.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. BENNET. I would like to say to the Senator from North Carolina, 
before he leaves the floor, that I am well aware of his longstanding 
commitment to education issues and to the kids in this country. I have 
no doubt of that, and I hope he didn't take anything I said to suggest 
that. I actually think the two of us probably share a lot of agreement 
on what we ought to be doing.
  My issue is simply--and as I said about the Senator from Kentucky, he 
has every right to do this--that, as my colleague and other members of 
the committee, I want to engage in a debate on the bill. I want to 
consider the amendments of my colleagues and to offer my own.
  I am painfully aware, having been in a school system, that Congress 
was supposed to reauthorize this bill in 2007. It is now 4 years later, 
and because of our own fecklessness, our own inability to get anything 
done, every single year teachers and parents and principals keep having 
to put up with what is the crudest accountability system I could 
imagine. The only thing cruder than the accountability system was the 
response of big school districts, such as the one I used to work in, to 
that accountability as people tried to comply with well-intentioned but 
incredibly poorly thought-through laws and regulations from Washington, 
DC. I don't want these schools to have to endure 1 more year of this 
meaningless accountability, where we are comparing this year's fourth 
graders to last year's fourth graders and telling ourselves that 
actually makes a difference.
  There is a lot of good work being done in our States right now around 
standards--elevating them--so we quit fooling ourselves about whether 
we are meeting international norms when it comes to our kids. There is 
a lot of great work being done in Colorado and other States that have 
come along creating a growth model that we--not we but moms and dads 
and teachers and principals--can actually track how this group of fifth 
graders did compared to how they did as fourth graders and how they did 
as third graders and then compare them to similarly situated kids 
across the country. That makes all the sense in the world compared to 
what we currently have.

  I sat out there in absolute despair wondering why this town was so 
mean to our teachers and to our kids. Isn't it a bare minimum that the 
Congress could reauthorize the legislation when they were supposed to--
in 2007? Yet now we find ourselves here.
  I thought the Senator from North Carolina was very eloquent this 
morning and today on the floor as well and I appreciated the points he 
made. My objection is a narrow one, which is the idea that the right 
way to approach reauthorizing No Child Left Behind, the right way to 
approach trying to fix this situation is to create a bunch of 
procedural barriers that don't allow us to have a substantive 
discussion about it.
  I agree completely with what the Senator from North Carolina said 1 
minute ago. There is a reason we have not a 15-percent approval rating 
but a 12-percent approval rating. There is a reason. I think we should 
come together in a bipartisan way and reauthorize this bill, get rid of 
AYP, and do some of the important things in this legislation. Then I 
hope the Senator would look at one of my amendments, because one of my 
amendments has his pharmacist in mind, if only we could get to a 
discussion of the merits of this bill.
  I see the Senator from Kentucky has left the floor, but I would just 
say that my only objective in coming down here today was simply to 
implore him to withdraw that objection. Knowing it is his right to 
object, I can't think of why he would do it if he wanted to change the 
trajectory of the work from the Federal level.
  I thank the Senator from North Carolina and the Senator from 
Minnesota and I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, I also respect my good friend from North 
Carolina, and I want to thank him for his vote on my amendment. I think 
he is going to like some of my other amendments too.
  I wish to take issue too with one thing he said. I think he said it 
in a moment where, if he thought about what he said, he might 
reconsider it. I had commented that I have spent more time probably on 
this bill than on any other, and I have spent a lot of time on the 
Affordable Care Act. The Senator from North Carolina then said, if I 
had spent more time on this bill than any other, that is a pathetic 
commentary or a sad commentary because we just got this bill the other 
day. The fact is--and I think the Senator would acknowledge this--work 
on any piece of legislation doesn't start when the bill is introduced. 
My work on this bill

[[Page S6723]]

started very soon after I arrived in the Senate.
  My work started with a bill I coauthored with Orrin Hatch, which is 
going to be an amendment. It is an amendment to recruit and train 
principals for high-needs schools. We have had schools I have seen 
turned around by principals because principals can create the ethos of 
the school. They have so much to do with selecting the teachers and 
transforming a school. This amendment would create a program where we 
recruit people who want to be principals in high-needs schools and have 
them monitored--if they haven't been a principal before--by a principal 
who has successfully turned around a high-needs school. That work 
started immediately upon my getting to the Senate.
  I have been going back to and traveling around the State of Minnesota 
talking to teachers and superintendents and principals. The Senator 
from North Carolina talked about the need to have superintendents and 
principals and teachers here. We had 10 hearings. I believe it was the 
other side at one point that said, please, stop the hearings.
  My colleague talked about the transformation models, which I do have 
problems with. What do we do with a school that has failed? What do we 
do now with a school in the bottom 5 percent? If the Senator from North 
Carolina was there, we had a superintendent--Joel Klein, superintendent 
of schools or chancellor of the schools in New York--who spoke exactly 
to the transformation models. Again, what works in New York certainly 
doesn't work in Pine City, MN, or parts of North Carolina, but there 
are plenty of teachers available and plenty of principals available in 
New York City. So I think we need more flexibility in transformation 
models than in this bill--than Joel Klein suggests--and maybe that is 
in the managers' bill now. Joel Klein is a superintendent, and he spoke 
to the transformation models. He said the transformation models gave 
him the ability to fix schools that were failing, schools that were 
dropout factories.

  So the very thing we have been asked for here: Let's have testimony 
from superintendents; aren't these transformation models surreal? We 
have had these hearings.
  I would suggest to the Senator from Kentucky who has just come in, my 
office will print out the transcripts of all the hearings we have had 
and you can read what teachers and principals and superintendents have 
said.
  I have to say that the work you do on these bills doesn't start when 
the bill hits the desk. In my case, it started 2 years before. And I 
don't think the Senator actually meant----
  Mr. BURR. Would the Senator yield for 1 second?
  Mr. FRANKEN. For a question. Sure.
  Mr. BURR. If the Senator interpreted my comments to be personally 
targeted to him, then I do apologize. The Senator said--and I wrote it 
down: I spent more time on this bill than any other bill ever.
  My criticism about the statement was, I said: If the Senator got the 
bill when I did, then there is not a whole lot of time between Friday 
when I got the bill and Wednesday when it was marked up.
  I don't question for a minute the Senator from Minnesota or the staff 
has spent a tremendous amount of hours on education. But in defense of 
Senator Paul and what he has sought is there has not been a hearing on 
this legislation. There are some things in this 868-page bill our 
committee has not had a hearing on that it would be great to have the 
opportunity to ask someone who is an education professional. In the 
absence of the ability to do that, you, I, the Senator from Kentucky, 
our staffs, all have to rely on what committee staff tells us. And that 
is not always the most accurate thing, regardless of which side of the 
aisle you are seeking that information.
  I appreciate what the Senator from Minnesota has said. I think that 
education should be a passionate debate, and we have seen some passion 
here this afternoon. I would hope the Senator from Minnesota would 
suggest to Senator Harkin, maybe there is a pathway where we can get 
predictability in the number of amendments, predictability in the time 
it takes to mark this up, with some accommodation to the sensitivities 
that Senator Paul and others have raised, because I hope the Senator 
from Minnesota will agree with me, there is not an urgency to do it 
this week, and if we could, when we come back from the end of October, 
have a hearing, I think we could have a pathway to mark up and 
completion.
  Having said that, it probably will be a product that I couldn't 
support, I will aggressively try to amend, and I would be anxious and 
hopeful that I would have the opportunity again on the floor to try to 
affect its content.
  But if the Senator will be an advocate for that, I think there is a 
pathway that doesn't in any way, shape, or form delay our ability in 
this institution to conference with the House or to present the 
President a bill. I would be more concerned with whether we produced 
the right product, and I think we can achieve that better.
  I thank the Senator for yielding to me.
  Mr. FRANKEN. Certainly. And obviously I believe in the markup we will 
have a healthy discussion of every part of this bill and of every 
amendment. I think the Senator from North Carolina is going to be so 
thrilled with my amendments, that at the end of the day he is going to 
not just cast an aye vote on the bill but an enthusiastic one.
  I accept your apology. I don't think you said exactly what you said 
you said. What you said was if the Senator spent--it is not worth going 
into.
  The point is that your work on a bill doesn't start when a piece of 
legislation is written. Most of the work comes before. And I want 
everyone to understand that who is listening.
  This bill has been a tremendous passion of mine. You mentioned 
passion for success. I want the growth model. Senator Bennet was 
superintendent of the Denver schools, and very successful. When I did 
my principal bill, I went to a school in St. Paul, MN, Dayton's Bluff, 
which had been a failed school and was turned around by a successful 
principal. So I had a roundtable there. This was very early in my 
tenure here. One of the principals said, You know those No Child Left 
Behind tests, we call them autopsies. What he meant was you take them 
at the end of the year, you take them in late April, and you don't get 
the results until the kids are out of school, and then the results are 
abrogated.
  We have something in Minnesota that the teachers, superintendents, 
and principals agree on, something called the NWEEA tests. What are 
those? They are computer-adaptive tests. What does that mean? In 
Minnesota, very often they take these three times a year. They are 
computer tests so that teachers get the results right away. The 
principal called the No Child Left Behind test autopsies because the 
kids are out of school and the teacher can't use it to inform 
instruction. If you do a computer test and you get it right away, the 
teachers can use the tests to inform their instruction. I think that is 
what most parents thought we were doing in the first place when 
President Bush first suggested this law.
  Secondly, they are adaptive. What does that mean? Well, that means if 
a kid gets a question right and keeps getting questions right, the 
questions get harder; but if they start getting questions wrong, they 
get easier. It is much more diagnostic and you can see exactly where a 
child is. Right now, the No Child Left Behind test forbids these 
assessments from going outside grade level.
  Arne Duncan, Secretary of Education, said something profound. He said 
that a sixth grade teacher who takes a kid from a third grade level of 
reading to a fifth grade level is a success, is a great teacher; but 
under No Child Left Behind, the way it is now, that teacher is a 
failure. That makes no sense whatsoever. We have to measure growth. 
That is what the Senator from Colorado was talking about. We need to 
measure growth. And that is no mystery.
  I go around to schools, and I remember being in a school in St. 
Cloud, MN. I was introduced by the principal to the teacher who won 
Teacher of the Year, a math teacher. I met the math teacher, and the 
math teacher said, ``Growth.''
  This is not a mystery, and we have had hearings on this and we know 
this. We need to be measuring how much kids grow, and that will help 
kids who are from poor schools, because they are starting at a lower 
level. But if the

[[Page S6724]]

school is good and they are increasing their growth, they will be 
rewarded.

  My daughter graduated from college. I am looking at the pages now who 
are juniors in high school. My daughter, immediately out of college, 
became a teacher at a school in the Bronx, 97 percent free and reduced 
price lunches, a third-grade teacher. That is the first year they do No 
Child Left Behind testing. She had to take her kids from here to here, 
to this arbitrary level of proficiency in order to be considered a 
success, where 15 miles to the north a teacher in Westchester had to 
take her kids from here to here. That doesn't make any sense.
  In Minnesota, I have learned from my teachers I have talked to that 
there is something called ``the race to the middle.'' What is that? 
Under No Child Left Behind, the way it works now is that there is an 
arbitrary bar of proficiency a teacher is judged on, on what percentage 
of their kids in these different subgroups meet or exceed that bar of 
proficiency.
  Well, the smartest kid in the class is going to pass, no matter what. 
There is nothing you can do to that kid that won't make that kid exceed 
the bar of proficiency. So guess what. The teacher ignores that kid.
  The kid at the bottom, the most challenged kid, well, no way that kid 
is going to make it, so let's ignore that kid.
  A race to the middle. The kid right below and right above 
proficiency, those are the kids who are drilled--drilled and killed, as 
they call it in Minnesota.
  We know what is wrong with No Child Left Behind. We have been 
discussing it for 1\1/2\ years in hearings. We have been talking about 
it. I have been talking to the ranking member. He mentioned today these 
computer-adaptive tests in the markup. These things aren't mysteries. 
Members were welcomed to the hearing, and some didn't come.
  But the work on a bill doesn't start the day the bill hits the table. 
The work of a Senator, if the Senator is a hard-working Senator, is 
every day. It is going back to your State and finding out what teachers 
and principals and superintendents need. It is going to the hearings. 
It is talking to the other Members, to the chairman, to the ranking 
member, and to your staff. And your staff is getting information from 
other staffers--not just the committee staff but from other staffers. I 
don't want to leave people with the impression that we work once the 
bill hits the table.
  Mr. President, I yield the floor, and I would suggest the absence of 
a quorum.
  The PRESIDING OFFICER (Mr. Cardin). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN of Ohio. Mr. President, I would like to speak about two 
amendments, if I could. One is about basic civil rights and fair 
housing organizations and the other is about counseling and I would 
like to speak on both of them.
  Our Nation's fair housing organizations help enforce basic civil 
rights, something that has been important in this country for many 
years. They investigate housing discrimination and they educate tenants 
and homeowners of their rights. They fight the pernicious 
discrimination that targets and redlines low-income Americans in 
communities of color. Housing discrimination not only violates our 
laws, it is a barrier to economic mobility. That is why the Department 
of Housing and Human Development invests in the Fair Housing Initiative 
Program which supports fair housing groups across the country.
  They investigate mortgage lending fraud and predatory lending. They 
investigate foreclosure cases that force homeowners out of their 
homes--an endemic problem in the Presiding Officer's State of Maryland, 
my State of Ohio, and across the country--before facts and underlying 
rights are observed. Simply put, FHIP helps the very organizations that 
educate the public and enforce the laws that protect people from 
housing discrimination.
  The program is cost-effective, saving HUD money as it streamlines 
government resources to move more effectively and efficiently and 
investigate complaints. The fair housing organizations investigated 65 
percent of the Nation's complaints of housing discrimination, nearly 
twice as many as all agencies combined. Fair housing advocates in 
Cincinnati, Dayton, Toledo, Cleveland, Akron, Columbus, and in towns 
across Appalachian Ohio fight predatory lenders.
  For millions of Americans, the barrier to opportunity and security is 
the latent discrimination of ruthless landlords and unscrupulous 
lenders. Without FHIP, our country and our economy are subject to the 
very discrimination that not only hurts individual renters and 
homeowners but holds too many communities back. That is why I am 
offering this amendment to restore full funding to FHIP in line with 
the House level. State and Federal fair housing enforcement is already 
stretched thin. In my home State, the State Civil Rights Commission has 
four investigators devoted to housing complaints. It would be 
devastating to cut private fair housing programs any further.
  This amendment is supported by the Leadership Conference on Civil and 
Human Rights, the NAACP, the National Council of La Raza, and the 
National Fair Housing Alliance. It is also supported by Miami Valley 
Fair Housing Center, Neighborhood Housing Services of Greater 
Cleveland, the Coalition on Homelessness and Housing in Ohio, the Ohio 
CDC Association, the Toledo Fair Housing Association, and the 
Homeownership Center of Greater Dayton.
  On Sunday, the Martin Luther King, Jr., Memorial was dedicated on our 
National Mall. It is a reminder of the era that blatant Jim Crow laws, 
brutal beatings and segregation may be over, but our fight to remove 
stains and strains of discrimination continues.
  It continues through thousands of fair housing organizations that 
serve millions of our fellow Americans. It continues with this body 
investing in these organizations.
  I ask unanimous consent to have printed in the Record a letter of 
endorsement of many organizations. This is a letter from those civil 
rights organizations supportive of our legislation.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                 October 18, 2011.
     Hon. Daniel Inouye,
     Chairman, U.S. Senate Committee on Appropriations, 
         Washington, DC.
     Hon. Thad Cochran,
     Ranking Member, U.S. Senate Committee on Appropriations, 
         Washington, DC.
       Dear Chairman Inouye and Ranking Member Cochran: The, 
     undersigned civil rights organizations, urge you to support 
     level funding for the Fair Housing Initiatives Program (FHIP) 
     by accepting the House number of $42.5 million in your 
     upcoming negotiations. FHIP funding is crucial to protecting 
     all families and individuals seeking fair housing choices 
     across the United States.
       As you know, the Senate Appropriations Committee's 
     Transportation-HUD bill includes only $35.9 million for FHIP, 
     $7 million less than the figure approved by the House 
     Subcommittee. Such a decrease in FHIP funding would greatly 
     limit the abilities of local organizations to educate the 
     community and the industry about fair housing, and limit the 
     establishment of fair housing organizations in areas where 
     pervasive housing discrimination occurs unchecked.
       FHIP provides unique and vital services to the public and 
     the housing industry. Private non-profit fair housing 
     organizations are the only private organizations in the 
     country that educate the community and the housing industry 
     and enforce the laws intended to protect all of us against 
     housing discrimination.
       FHIP saves money for the federal government, and for state 
     and local governments. According to a recent HUD-funded 
     study, ``FHIP grantee organizations weed out cases that are 
     not covered by civil rights statutes'' or that do not have 
     merit, thereby avoiding costly lawsuits and mediations. The 
     vetting of complaints by fair housing organizations ``saves 
     resources for HUD and state agencies that do not have to 
     investigate these complaints.''
       ``FHIP funding is a critical component of the U.S. civil 
     rights enforcement infrastructure,'' according to HUD. 71% of 
     the cases in which a FHIP organization is a complainant 
     result in conciliation or a cause versus 37% of nonFHIP 
     referred cases.
       Cuts to FHIP and FHAP will leave entire states and many 
     communities without a place to protect their rights or to 
     report housing discrimination. Over the past ten years, more 
     than 25 fair housing organizations have already had to close 
     their doors or drastically limit their staff due to 
     insufficient funding levels. By cutting FHIP, many more 
     states and communities will be at risk of losing any fair 
     housing resources.

[[Page S6725]]

       Fair housing organizations operate efficiently and 
     effectively on shoestring budgets. In 2010, there were 28,851 
     complaints of housing discrimination filed. This number of 
     complaints still represents less than one percent of the 
     annual incidence of discrimination, which is estimated to 
     exceed four million. Private fair housing organizations 
     investigated 65% of the nation's complaints, i.e. almost 
     twice as many as all government agencies combined.
       We cannot afford to leave states and communities without a 
     place to protect their rights or report housing 
     discrimination. With the cuts HUD currently faces, the role 
     of fair housing organizations will only become increasingly 
     important.
       We thank you for your past support for the Fair Housing 
     Initiatives Program, and we ask that you support level 
     funding of $42.5 million as the budget process moves forward. 
     In this economy and devastated housing market, everyone 
     deserves a fair shake at purchasing and renting the home of 
     their choice, regardless of their identity characteristics. 
     We as a nation cannot afford to limit the housing activities 
     of any single family or individual.
           Sincerely,
         Bazelon Center for Mental Health Law, Lawyers' Committee 
           for Civil Rights Under Law, Leadership Conference on 
           Civil and Human Rights, NAACP, National Association of 
           Neighborhoods, National Community Reinvestment 
           Coalition, National Council of La Raza, National Fair 
           Housing Alliance, National Gay & Lesbian Task Force 
           Action Fund, Poverty & Race Research Action Council.

  Mr. BROWN of Ohio. Mr. President, I would like to speak on a second 
amendment. Since a peak in 2006, housing prices, as we know in this 
country, have fallen by nearly one-third. Total homeowner equity 
slashed in half with the loss of more than $7 trillion. Some 6 million 
people have lost homes since the height of the financial crisis. Yet 
just yesterday we heard a leading Republican Presidential candidate 
tell an editorial board in Nevada that his solution to the Nation's 
housing crisis is to speed up the rate of foreclosures. This despite 
clear evidence that basic legal requirements have often gone ignored in 
foreclosure proceedings; this despite clear evidence that some banks 
have specifically targeted certain communities in specific 
neighborhoods for foreclosure; this despite the fact that persistent 
foreclosures are dragging down property values across the Nation.

  I remember some years ago in Cleveland, in Cuyahoga County in my 
State, we had more foreclosures--except for the moratorium year last 
year--every year than the year before for the last 14 years. I remember 
neighborhoods in Cleveland where there might be only a couple of 
foreclosures on a street, but we knew what happened when those homes 
were foreclosed on--well, what obviously happened was vandalism and 
stripping off the aluminum siding and stealing the pipes, and the 
property would be degraded and the property would be ignored--and what 
happened to other homes in the neighborhood and what happened to the 
prices and the values of those homes even though people were paying 
their mortgages and staying in their homes.
  So this--this statement to the Nevada newspaper--this despite the 
clear message from my distinguished colleagues, Senator McCain of 
Arizona and Senator Nelson of Florida, representing States such as Ohio 
that have been devastated by high rates of foreclosures.
  Earlier this week, my colleagues stated on this floor--some 
colleagues said we need to do more to get people mortgages they can 
afford, to make payments on them, rather than throwing them out of 
their homes. I couldn't agree more. If we are going to strengthen our 
economy, we must find a stronger response to the foreclosure crisis, 
not rushing the process but better managing it.
  Right now, the provision of homeowner counseling is one of the most 
effective ways we have to deal with this crisis. I remember talking to 
fair housing coalitions and organizations in Toledo and Dayton and all 
over my State, telling how they were able, one family at a time, to 
avert foreclosure. We know what that means not just for that family but 
to that community because they were able to do foreclosure counseling. 
I have seen firsthand in my State how these programs help better manage 
the mortgage payment process that helps to keep homeowners in their 
homes.
  Organizations such as the Neighborhood Services of Greater Cleveland, 
the Columbus Housing Partnership, and the Coalition of Homelessness and 
Housing in Ohio are leaders in foreclosure counseling. The Department 
of Housing and Urban Affairs invests in the Housing Counseling 
Assistance Program that supports these Ohio programs and hundreds like 
them across the country. Housing counselors provide guidance and 
assistance and advice to help families meet the responsibilities of 
tenancy and home ownership.
  Foreclosure counseling is particularly valuable to those obviously in 
danger of losing their home. According to a study by the Urban 
Institute, homeowners who are assisted by mortgage counselors have a 
60-percent better chance of saving their home. If a family has 
counseling with a professional counselor, somebody to advocate for them 
and assist them, they have a 60-percent better chance of saving their 
home than if they don't have that assistance.
  HUD has requested $88 million for housing counseling for each of the 
last 2 fiscal years. Yet, last year, Congress provided no money for 
this important program--a program that keeps people in their home, 
helps their neighbors because this house might not be foreclosed on, 
helps those people build equity and savings that are essential for 
stable houses, stable families, stable homes, stable neighborhoods, 
stable communities.
  Given this lack of funding, I am particularly grateful for the work 
done by the subcommittee chair and ranking member in restoring funding 
for this program. Special thanks to Senator Murray and Senator Collins. 
The subcommittee has worked hard to find $60 million to fund the 
program. I applaud them for their efforts. Senator Sanders has also 
been a great champion in this effort. Even with this level of funding, 
the demand for housing counseling exceeds the level of services that 
would be supported.
  It is imperative that we provide these investments. They are 
necessary to meet the needs of the record number of homeowners facing 
foreclosure, they are necessary to help advise borrowers preparing to 
purchase new homes, and they are necessary and vital to our housing and 
economic recovery.
  Historically, we know that to pull ourselves out of recession in this 
country, we need a vibrant manufacturing sector, especially driven by 
auto, and we need housing, more home construction, more home 
renovation, and appreciation of housing prices. We are doing OK with 
auto manufacturing, but we are not doing nearly well enough with 
housing.
  I applaud my colleagues for their work. I appreciate their support 
for this program, and I look forward to their continued support and to 
their supporting the Senate number in conference.
  Thank you, Mr. President. I yield the floor.
  Ms. MIKULSKI. Mr. President, I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CARDIN. 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.


             Unanimous Consent Request--Executive Calendar

  Mr. CARDIN. Mr. President, I know the Senator from Missouri is here, 
and I am going to make a unanimous consent request that I anticipate he 
will object to on behalf of other Senators. So let me do that formally 
and then make my comments.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session to consider the following nomination: Calendar No. 
112; that the nomination be confirmed, the motion to reconsider be 
considered made and laid upon the table, with no intervening action or 
debate; that no further motions be in order to the nomination; that any 
related statements be printed in the Record; that the President be 
immediately notified of the Senate's action and the Senate then resume 
legislative session.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Missouri.
  Mr. BLUNT. Mr. President, I object on behalf of Senator Hatch and 
Senator Isakson.

[[Page S6726]]

  The PRESIDING OFFICER. Objection is heard.
  Mr. CARDIN. Mr. President, I certainly understand that my friend from 
Missouri is doing this on behalf of other Senators. I want to express 
my disappointment that these Senators are objecting to the confirmation 
of William J. Boarman, an individual who is eminently qualified to be 
our Nation's 26th Public Printer and head of the Government Printing 
Office.
  President Obama nominated Bill Boarman 18 months ago. The Senate 
Committee on Rules and Administration reported the nomination favorably 
in July of 2010. The nomination languished because of Republican 
objections so President Obama made a recess appointment on January 3, 
2011, and renominated Mr. Boarman on January 27, 2011. Again, the 
Senate Rules Committee reported the nomination favorably by voice vote 
this past May.
  The Public Printer is not a controversial position. Previous Printers 
have been confirmed without controversy or delay. This obstruction is 
unprecedented.
  Bill's career in the printing industry spans 40 years. He started as 
a practical printer, trained under the apprenticeship program of the 
International Typographical Union and served his apprenticeship at 
McArdle Printing Company in Washington, DC.
  In 1974, he accepted an appointment as a journeyman printer at the 
GPO. Mr. Boarman was elected president of his home Local 101-12 when he 
was 30 years of age. He later served as a national officer with the 
ITU, where he was a key architect of the merger between the ITU and the 
Communications Workers of America. He was elected ITU president shortly 
before the merger and has been reelected to seven successive terms 
since.
  He has served as an unpaid consultant to several Public Printers and 
has testified before various congressional committees regarding GPO 
programs and policies. He is an expert in this field. He is eminently 
qualified. I think the Members of this body know that.
  Mr. Boarman served as chairman of the $1 billion CWA/ITU Negotiated 
Pension Plan and the $125 million Canadian Negotiated Pension Plan. He 
has experience in management. He was among the union leaders who 
spearheaded the creation of the AFL-CIO Capital Stewardship Program and 
the Center for Working Capital in the Federation.
  Because of his experience in the field of pension administration, he 
was chosen to represent CWA on the Council of Institutional Investors, 
serving 12 years as a member of the CII Executive Board and three terms 
as its cochairman. He has also served on the Maryland Commission on 
Judicial Disabilities and as cochair of the Taft-Hartley Northern 
American Study Group educational investment conference.
  He has served as president of the Union Printers Home, a 122-bed 
skilled nursing facility in Colorado Springs, CO. I mention his 
extensive background to underscore the point that Bill Boarman is, 
perhaps, uniquely qualified to serve as the Nation's Public Printer, 
and there is absolutely no good reason to hold up his confirmation.
  All we are asking is, let's bring this nomination forward for a 
vote--a person who has eminent qualifications. There is no substantive 
objection to his confirmation. I hope my colleagues who have raised the 
objection will allow us to move forward.
  The Public Printer serves as the chief executive officer of the GPO, 
the agency charged with keeping the American people informed about the 
work of the Federal Government.
  GPO is one of the world's largest printing plants and digital 
factories and is one of the biggest print buyers in the world. GPO 
disseminates the Congressional Record and the Federal Register and a 
number of other products and services in both print and digital form.
  The agency has been tasked to build its digital capability into a 
state of the art operation to improve transparency and citizen access 
to government documents and reports.
  We hear all the time about making this system more transparent. Mr. 
Boarman knows how to do that. Let's give him a confirmed position so we 
can help bring the public more into what we do here in Congress.
  Bill Boarman faces the challenges of maintaining the traditional 
printing skills of an aging workforce while helping a 150-year-old 
organization adapt to a world in which most documents are ``born 
digital.''
  As Bill has said:

       Few Federal agencies can count as their heritage the scope 
     of the work GPO has performed, ranging from the first 
     printing of the Emancipation Proclamation to providing 
     digital access to the Government's publications today. The 
     men and women of GPO are responsible for that heritage.

  It is past time that Bill Boarman--a man with over 40 years of 
experience in the printing industry--be considered and confirmed as the 
Nation's 26th Public Printer.
  I urge my colleagues on the Republican side of the aisle: Let the 
Senate do what it is legally responsible to do: advise and consent on 
these nominations. Let us vote so we can confirm this position that was 
first brought forward over a year and a half ago.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I want to associate myself with the 
remarks of my colleague from Maryland regarding the nomination of Mr. 
Boarman. My colleague from Maryland has offered a spirited and 
comprehensive description of why Mr. Boarman should be confirmed as our 
Public Printer. I wish to, one, validate everything he said; and, 
second, Mr. Boarman, we need to know, is a reformer. He has the heart 
of a reformer. He has the spirit of a reformer. He has the know-how of 
a reformer.
  As we look at the position he is being asked to serve in, we need 
someone who has technical competence in the field, experience in 
managing a large organization, and also one who has dealt with the 
challenges related to both delivering a product but also those related 
to the workforce.
  I think we are doing a national disservice by not putting this man in 
office so he can take charge and maintain something that is a 
nonpartisan job--the Government Printing Office. It is not as though he 
is going to be in some back room reprinting little pamphlets from the 
1930s Bread March. He is here to be our Public Printer.
  We know we are into a new age, a digital age. He has a lot of reform 
to do. We know there is workforce reform that needs to be done but done 
with sensitivity. Again, he is somebody who himself is from the rank 
and file.
  I think this: Once again, we are playing politics with a job that 
certainly is not political. We have an esteemed, qualified individual 
who wants to be a reformer, to get the job done, and who knows we are 
in a more frugal atmosphere.
  I think we are wasting time, we are wasting money, and we are wasting 
the talent of an exceptional individual.
  I am going to say this: The more we continue to delay and be 
deleterious on these appointments, why would anybody want to come forth 
to serve in the public domain? They often have to give up jobs or put 
their jobs on hold while they are waiting for these confirmation 
processes. We put more sand in the gears of government, and then we 
blame government for grinding to a halt.
  Let's have an orderly way of dealing with nominations and at least 
give the man a vote up or down, yes or no.
  Mr. President, I yield the floor.
  Mr. CARDIN. 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.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, the American people are watching this 
and saying: What are they doing? Well, actually we are doing a lot. 
Senator Blunt and I are managing the bill. You might say: But there is 
nothing going on. Well, there is a lot going on because we are 
reviewing amendments of Senators. That is what all this discussion is, 
to see what we can take or there might even be bipartisan agreement. 
And then we are lining up how we will proceed on the next four to six 
amendments, again alternating both sides of the aisle.

[[Page S6727]]

  So if people are watching this and saying: What are they doing, just 
what are they doing, well, we are doing a lot. We hope to, by the close 
of business tomorrow, finish the Agriculture, Commerce-Justice, and 
Transportation-Housing bill appropriations. We are going to have some 
robust debate on some amendments. Some are quite controversial. But 
right now, we are trying to see what we agree on and, what we don't 
agree on, how could there be a regular, civilized, orderly process for 
having a debate and then voting.
  We anticipate that somewhere around 5:30 or 6:00, we will have a 
cluster of votes. So that is kind of the game plan so far.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the next 
first-degree amendments in order to be called up and made pending to 
H.R. 2112 and the substitute amendment No. 738 be the following: 
Ayotte, No. 753; Crapo, No. 814; Moran, No. 815; Coburn, No. 793; 
Coburn, No. 798; DeMint, No. 763; DeMint, No. 764; Grassley, No. 860; 
Sessions, No. 810; Lautenberg, No. 836; Brown of Ohio, No. 874; 
Merkley, No. 879; Bingaman, No. 771; Gillibrand, No. 869; Feinstein, 
No. 855; and Menendez, No. 857; further, that a motion to recommit from 
Senator Lee be in order; that, if offered, the motion be set aside and 
the Senate return to the consideration of the pending amendments.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, this means this is now the order in 
which we will proceed. These are the amendments that both sides have 
agreed should be offered in this tranche or cluster.
  We are saying to the Senators who now have these amendments, get 
ready to come to the floor. As I understand it, Kelly Ayotte will be 
here to offer her amendment, which will be important, and then what we 
would like to do is alternate on both sides of the aisle. The Senator 
from New Hampshire will offer her amendment. We hope then that there 
would be a Democrat, and we will go back and forth. If a Senator is not 
here, we will move on to the people who are here.
  We have 16 amendments. We would like to finish these amendments this 
evening. The more that can come and be ready to offer their amendments 
and debate--and Senators will be able to present their amendments and 
debate them, but we would like to do that.
  That is the way we are going to proceed. These are the amendments. We 
will alternate on both sides of the aisle. We encourage Senators who 
have these amendments to come over and we will call them up.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. Mr. President, I join my good friend in suggesting we 
would like to see our colleagues come over here. These three 
appropriations bills are being handled on the floor and they are open 
to amendment. We haven't had appropriations bills on the floor of the 
Senate in this way in quite a while. We would like to get these bills 
done. Hopefully, we can get these bills done maybe even this week and 
send them on over to the House to talk about these bills and their 
bills--3 bills, 16 amendments, and those aren't all the amendments we 
expect to be offered. But we hope these amendments are offered today--a 
significant number--and as the Senator from Maryland said earlier, we 
expect votes on some of these amendments around 6 o'clock. Between now 
and then, we look forward to a vigorous debate on as many of these as 
the sponsors can come and debate. But the Agriculture bill that I am 
the ranking member of; the Transportation, Housing and Urban 
Development bill, which the Senator represents so well; and the 
Commerce-State-Justice bill are all bills that are moving forward in as 
close to a regular process as we have had in a while.
  We look forward to seeing these amendments debated this afternoon and 
some of them--as many of them as possible--voted on this afternoon and 
this evening.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, the Senator from Missouri is right. We 
haven't had a regular order for some time. Leadership on both sides of 
the aisle has created this fantastic opportunity. We are actually 
following a regular order on our appropriations. We are actually 
following a regular order. This is our opportunity to show we can have 
a regular order, that we can move our annual appropriations together in 
a well-measured, well-paced, well-debated, and well-scrutinized way.
  I hope our colleagues who have amendments will come over. We know 
Senators have lots of opinions, and opinions sometimes get translated 
into amendments. But we ask our colleagues now to show we can govern. 
Come down, come to the floor and offer these amendments and show we can 
move three very important bills. The one affecting transportation and 
housing is important to our economy. This is a jobs bill, putting 
people to work building highways, roads, and housing. Agriculture is an 
important part of our economy, and also Commerce, Justice, and Science 
is the innovation committee, the trade committee, and the advocacy for 
justice committee. We look forward to these amendments and debating 
them.
  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. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, in a few minutes, I want an opportunity 
to, for clarification, talk about the LRA, troops who have gone over to 
northern Uganda, including Rwanda and south Sudan. I will wait now 
because a lot will want to speak subject to these amendments.
  I wish to mention something I think is significant because nobody is 
talking about it. People have heard me talking over the years about the 
overregulation being pursued by this administration in every area and 
what it is costing in terms of jobs.
  I know I talk about this quite often, but this time I am talking 
about a different area of overregulation. Most of the time I am talking 
about what the EPA is doing to destroy businesses in this country. I do 
that because I am the ranking member on the Environment and Public 
Works Committee, which has jurisdiction over the environmental 
regulations and the EPA.
  When we see what they are doing, it is something that is more 
serious--or at least as serious as all the deficits that are coming out 
of this administration because it is chasing jobs overseas. We will 
talk about that. This is a different area altogether.
  We talk about the overregulation that comes from the EPA in the EPW 
Committee, where we have jurisdiction. Today, I want to mention what is 
going on in the USDA. In the 2008 farm bill, the USDA was instructed to 
revisit and update the marketing regulations authorized to the Packers 
and Stockyards Act of 1921. That particular act is governed by the 
Grain Inspection, Packers, and Stockyards Administration, or GIPSA, as 
it is referred to. That is all within the USDA.

  The agency is supposed to regulate and deal with the marketing 
practices within the livestock industry. I am from Oklahoma, and it is 
a huge industry in Oklahoma. This provision of the farm bill was 
heavily debated and amended when it was considered and, ultimately, the 
USDA was instructed to provide regulations for a few explicit 
objectives. Among them were broader contract cancellation rights for 
livestock growers; the disclosure of foreseeable future necessary 
capital investment required for contract growers within their growing 
contracts; and criteria for GIPSA to determine whether producers are 
treated with unreasonable preference or advantage. The House already 
considered this. In fact, they have done their Agriculture 
appropriations bill.
  Several months after the farm bill was enacted--the one I referred 
to--GIPSA released its preliminary rule,

[[Page S6728]]

and the rule they published went far beyond the requirements that were 
explicitly stated in the law.
  One of the biggest problems with the rule is that it would allow 
GIPSA and the USDA to punish livestock producers and buyers for 
engaging in practices it considers unfair or unjust, even when there is 
no proof that their practices are actually harming competition within 
the industry. They want to do this in the name of leveling the playing 
field, which we hear a lot about around here, and that playing field 
would be between the packers and livestock producers, but what they are 
doing is regulating this industry in a way that would prohibit any real 
innovation or differentiation among companies in the industry. It 
forces a one-size-fits-all approach to running the livestock industry.
  For one, the new rule would require packers and stockyards to keep 
written documentation justifying any differentiation in price that one 
pays to different livestock producers. Can you believe this? The USDA 
wants stockyards to justify every pricing decision they make. If that 
isn't big government, I don't know what is. The USDA wouldn't require 
this if they didn't intend to review these documents to determine 
whether the stockyards provided this justification. When doing this, 
the USDA bureaucrats will have the power to punish and fine stockyards 
that it believes are behaving unfairly. This is government determining 
whether they are behaving unfairly.
  My question is this: In what other industry would this be considered 
acceptable or even appropriate? Can we imagine Walmart being forced to 
send the Federal Government justification for every price it negotiates 
with its suppliers? No. That would be ridiculous, and we all understand 
that.
  The livestock industry is no different. This is American business, 
capitalism, and the individuals participating are doing so voluntarily. 
No one is forcing anyone to be in the livestock business. Negotiating 
prices--where some folks get higher and some folks get lower prices--is 
part of the deal. Some get advantages and some disadvantages, but it 
isn't government making that determination. That is the way it should 
be.
  Another problem with this rule is that it would ban packer-to-packer 
sale of livestock. I don't know why the USDA wants to do this. Who 
cares if one stockyard sells or buys from another? It is none of their 
business. It seems perfectly American to me. But this will have a 
particularly negative impact in Oklahoma.
  Right now, we only have one pork packing plant of any size in my 
State of Oklahoma, and the next closest plants are in Iowa, Missouri or 
probably Nebraska--I am not sure--maybe hundreds of miles away. If 
packers or entities owned by packers are no longer allowed to sell hogs 
to other packers, it will force Oklahoma producers to ship hogs out of 
the State to get them to market. This would increase operating costs, 
it would be prohibitive, and it would take them out of the market. Even 
if Oklahoma pork producers chose to ship hogs out of State, the 
prohibition of packers to sell animals to other packers would force 
producers to incorporate a middleman to eliminate the direct sale 
between packers. All this would do is increase the cost of production. 
That would make us in Oklahoma less competitive.
  Let's keep in mind that the Oklahoma pork industry only took off 
after the construction of a pork processing plant. In 1987, before this 
plant was constructed, the annual cash receipts for pork producers were 
$33 million. That was it. The pork processing plant was constructed in 
the mid-1990s, provided necessary infrastructure to our State to do 
this. However, since then, the pork industry's annual cash receipts 
have risen more than tenfold to $555 million in 2007. So making this 
processing plant less capable of serving the needs of Oklahomans and 
our pork producers will undoubtedly hurt our industry and our 
consumers.

  Unfortunately, these are only a few examples of the bad provisions of 
the new GIPSA rule I have heard about extensively from my livestock 
producers, and I am sure everyone else from agricultural States has 
heard about the concerns their States have. They believe that if this 
rule is finalized, it will force them to completely change the way they 
conduct business, and no government rule should force private 
businesses to do this, especially when the industry practices they have 
developed have been very effective at safely bringing meat products to 
the market.
  Another problem with this rule is that the USDA has not publicly 
released the study it did to determine its economic impact. And we know 
why they haven't. It is very expensive. Several private studies have 
been done, and one of them estimated that the rule would reduce U.S. 
economic activity by $14 billion and would result in the loss of over 
100,000 jobs. The USDA needs to release the economic impact analysis it 
did. There is no justification for their not doing this. So we have 
made that request, and we are waiting for that to happen.
  There is a nominee for Secretary of Commerce--a very nice person, a 
fine person named John Bryson--whom I oppose. The reason I oppose John 
Bryson is he has been very active in this whole movement on cap and 
trade. We all know what that is. We have talked about it for 10 years. 
We had the Kyoto Convention that we did not become a part of, and there 
have been several efforts to have bills on the floor to have cap and 
trade, supposedly to stop catastrophic greenhouse or global warming. 
Now people know the science has been debunked. It is not real. Yet they 
are going ahead and doing it. But if the President is able to pass 
these regulations, it will cost the American people between $300 
billion and $400 billion a year.
  Now, I would say this. There are a lot of people out there saying: 
Well, it doesn't hurt to pass a tax increase of $300 billion if it is 
going to do something about global warming. Even President Obama's EPA 
nominee and choice, Lisa Jackson--now confirmed--has gone on record. In 
response to the question, if we were to pass any of these bills, 
whether it would be the McCain-Lieberman bill or the Waxman-Markey 
bill, any of these cap-and-trade bills that would be passing on a $300 
billion to $400 billion tax increase, if that happened, would that 
reduce emissions, her answer was no.
  Just logically look at that. If we do that in the United States, it 
will not change the emissions because this isn't where the problem is. 
The problem is in China and India and in Mexico.
  So the cost of these regulations is unbearable for our economy, and 
here we are with over 9 percent unemployment. We are very fortunate in 
my State of Oklahoma because we have diversified, and our unemployment 
rate is down to 5\1/2\ percent. But nationally it is a disaster. So 
regulations are a very important part of this.
  I want to make sure we make it very clear that it is not just the 
regulations that come from the Environmental Protection Agency because 
these regulations we are talking about are going to be from the USDA.
  With that, Mr. President, I yield the floor, unless there is no one 
waiting.
  Ms. MIKULSKI. Mr. President, I would advise the Senator that we are 
waiting for one of the Senators to come and offer an amendment, if he 
wishes to speak on another subject.
  Mr. INHOFE. I would like to, and I would be happy to yield the floor 
to anyone else who comes to offer an amendment, if the Senator would 
alert me to that.
  Ms. MIKULSKI. Why don't you proceed.
  Mr. INHOFE. All right, I will.


                     U.S. Troops in Northern Uganda

  Mr. INHOFE. Mr. President, I know there is a lot of confusion, and a 
lot of people are blaming President Obama for sending 100 troops into 
northern Uganda.
  First, I want to make sure everyone knows I am not a fan of President 
Obama. He is responsible for all these regulations that are driving out 
American businesses. He is responsible for the deficit. Actually, his 
three budgets have had deficits each year of $1\1/2\ trillion, and he 
is up to almost $5 trillion in deficits. It is coming not from the 
Democrats, not the Republicans, not the House or the Senate, it is 
coming from President Obama. And I disagreed with his position with 
Libya, sending our troops in there the way he did.
  I am on the Armed Services Committee, the second ranking member, and 
I am very much concerned about what is happening right now and what 
this President has done to our military

[[Page S6729]]

in reducing our capability to the extent he has. But having said that, 
let me say that the criticism he has received for sending 100 American 
troops into northern Uganda is not justified, and let me explain what I 
am talking about.
  This picture here is of a guy whose name is Joseph Kony. Joseph Kony 
is a monster. For 25 years, he has been in northern Uganda, but he has 
been in other countries too--Rwanda, now the new country of South 
Sudan, the Central African Republic, and the Congo. Those five 
countries are where he has been.
  This is what he does. Many people don't know about him. In fact, 3 or 
4 days ago Rush Limbaugh was commenting that nobody knows what the LRA 
is; that is, the Lord's Resistance Army, and so I am here to tell you 
and tell you why these troops were sent over. It was not President 
Obama; it was I who did this. We passed a law requiring that to be 
done. Let me explain why.
  I have been active in Africa for many years. Fifteen years ago, I was 
in northern Uganda, in an area called Gulu, and I found out there is a 
guy up there by the name of Joseph Kony.
  This is Joseph Kony. He is a spiritual leader. What he does is he 
goes into the villages and he abducts hundreds and thousands of young 
kids, usually between the ages of 11 and 14, and then he takes the 
girls and sends them into prostitution, but he trains the boys to be 
soldiers. We are talking about kids 11 to 14 years old. So he teaches 
them how to use AK-47s, and when they graduate, these kids have to go 
back to the villages from where they were abducted and kill their 
siblings and kill their parents. If they do not do it, they come back--
and this is significant--and they are then mutilated.
  These are all kids. See, they are holding their AK-47s and all that.
  This next chart shows what happens if one of these kids comes back 
and he doesn't kill his parents or do as Joseph Kony says. He mutilates 
the kids, and the way he does it is he cuts off their ears, cuts off 
their noses, their lips, or cuts off their hands. This guy here, John 
Ochola, his hands were cut off and his nose and ears were cut off. This 
one just went through it, and he is still bleeding.
  These are kids. These are kids, 12 and 14 years old. This is what he 
has been doing to thousands of kids for 25 years now. So having 
sympathy for that, I came back and talked to some of my colleagues 
here, and I said: We have to do something about this. At that time, we 
were not allowed to send troops in. This has nothing to do with sending 
combat troops into an area. Certainly this has nothing to do with what 
the President did in Libya. But we passed a law that said that we are 
sending assistance into northern Uganda and the other four countries, 
but they are specifically precluded from entering into combat. In other 
words, the 100 troops who went in cannot even carry a weapon. They 
cannot be involved by law. I put that in the law. Those words are 
there. So what we are doing is we are able to go in and assist them in 
intelligence, maybe loan them a helicopter or whatever they need to 
take this guy out or to bring him to the international court. That 
would probably be better.

  But this is what this guy has been doing for 25 years, and you have 
to go see it to really appreciate it--these mutilated little kids.
  Well, anyway, I will say this. Those who are critical of me for 
supporting sending our troops over are ill-founded in their criticism 
for two reasons. First of all, we already have troops all over the 
world in places such as Africa. In the continent of Africa, we have 
several thousand American troops in a program called Train and Equip. 
It is specifically called 1206 and 1208 funding. That means we go into 
these countries and we help train the African nations to prepare for 
when the squeeze takes place in the Middle East and the terrorists come 
down through Djibouti and the Horn of Africa and spread out through the 
African Continent. We are building five African brigades. We are 
training them so that when something happens, as it did happen in the 
countries where we are currently in battle, we don't have to send our 
troops in because we are training them so they can take care of their 
own problems. That is essentially what is happening.
  I was in this brandnew country the other day, South Sudan. We have 
all heard about Sudan and Khartoum and heard and been told about all 
the atrocities that are committed there, and it just makes you cry when 
you see what is happening. Well, they now have split off, so South 
Sudan has a separate country. I was there last week. I was the first 
one there in terms of Members of the Senate just to cheer them on.
  I had 25 members of the Parliament of this new country called South 
Sudan with me for a period of 2 hours. Do you know what they said, Mr. 
President. They said: If you really want to do something about 
terrorism, get this growing force that Joseph Kony has and help us take 
him out.
  This question was asked of me today on a talk radio show: Why is it 
we can't get Uganda or Congo or Rwanda to do this?
  I would suggest that the Presidents of these three countries came 
from the bush. President Museveni was a warrior in the bush, and he 
doesn't like to admit he can't take care of one monster named Joseph 
Kony by himself. The same is true with Paul Kagame, who is President of 
Rwanda. Remember 1994 when they had the genocide? And he came from the 
bush. He is a tough warrior, but he doesn't want to admit he would have 
to have help to take care of that. Joe Kabila, from the Congo, the same 
thing.
  Well, I was able to get the three of them together, and they agreed 
they would work together with each other, and they asked if they could 
have some support from the United States in the way of intelligence and 
maybe a helicopter or two, and I said yes. So we passed the law. This 
law we passed was right here in the Senate. There was not one Senator 
who voted against it. I had 64 cosponsors--the largest number of 
cosponsors on any bill addressing a problem in Africa in the history of 
this Senate. So we are all in accord.
  A lot of Members are not courageous enough to tell the truth about 
this. A lot join in saying: Oh, we are not going to send more troops 
over. Let me assure you, these troops are going to go over and save 
lives. And they could very well be saving American lives because if 
this terrorist movement is allowed to continue, then we will have 
another terrorist movement in that part of the world that should be 
getting a lot of our attention.
  So with that, just to repeat two things, first of all, we already 
have troops over there in Training and Equip. These same troops will be 
doing that while there. Secondly, there won't be one American troop in 
harm's way in northern Uganda, the Central African Republic, South 
Sudan, Rwanda, or any of the other places where Joseph Kony might be 
leading his reign of terror.
  With that, I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 753 to Amendment No. 738

  Ms. AYOTTE. Mr. President, I ask unanimous consent to temporarily set 
aside the pending amendment, and I call up my amendment No. 753.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from New Hampshire [Ms. Ayotte] proposes an 
     amendment numbered 753 to Amendment No. 738.

  Ms. AYOTTE. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To prohibit the use of funds for the prosecution of enemy 
         combatants in Article III courts of the United States)

       After section 217 of title II of division B, insert the 
     following:
       Sec. 218. (a) Prohibition on Use of Funds for Prosecution 
     of Enemy Combatants in Article III Courts.--None of the funds 
     appropriated or otherwise made available for the Department 
     of Justice by this Act may be obligated or expended to 
     commence the prosecution in an Article III court of the 
     United States of an individual determined to be--

[[Page S6730]]

       (1) a member of, or part of, al-Qaeda or an affiliated 
     entity; and
       (2) a participant in the course of planning or carrying out 
     an attack or attempted attack against the United States or 
     its coalition partners.
       (b) Definitions.--In this section:
       (1) The term ``Article III court of the United States'' 
     means a court of the United States established under Article 
     III of the Constitution of the United States.
       (2) The term ``individual'' does not include a citizen of 
     the United States.

  Ms. AYOTTE. Mr. President, I filed amendment No. 753 to H.R. 2012, 
the appropriations minibus. My amendment would prohibit the use of 
funds for fiscal year 2012 for the prosecution of enemy combatants in 
our article III courts. This prohibition would apply to individuals who 
are members of al-Qaida or affiliated terrorist groups and who have 
participated in the course of planning or carrying out attacks against 
our country, the United States of America, or our coalition partners.
  In no other conflict have we treated our enemies as criminals and 
tried them in our civilian court system. I believe we need to stop 
criminalizing this war, and that is why I have brought forward this 
amendment. These individuals should be treated with military custody 
and tried in military commissions, and that is why I have brought 
forward this amendment at this time.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. SHAHEEN. I am here to speak in favor of the entire 
appropriations legislation that is before us, but particularly the 
Commerce, Justice, and Science appropriations bill. I thank Senator 
Mikulski for her leadership, and all of the members of that 
subcommittee who have worked on this portion of the appropriations 
legislation before us.
  Given the current financial constraints we are facing, I know this 
has been an especially difficult time to be trying to address the needs 
in the critical areas of our Federal budget, particularly with respect 
to Commerce, Science, and Justice, but I am here to speak to the 
section of the bill that deals with the Federal Bureau of Prisons.
  I am here on behalf of New Hampshire, because we have a particular 
interest in this section of the legislation because it directs the 
Bureau of Prisons to activate three Federal prisons which are currently 
built but are not yet opened. One of those prisons is in Berlin, NH, in 
the northernmost part of our State.
  I came to the floor last spring when we were debating the 2011 
continuing resolution to talk about this issue of opening the Berlin 
prison because it was completed and not yet opened. The prison is a 
medium-security prison. It was completed last November at a cost of 
$276 million. Since November, when the project was completed, it has 
been costing us $4 million to maintain security at the prison to make 
sure that damage is not done to this new facility. We have had a warden 
on board since about that time, but she has not been able to hire any 
of the staff she needs to activate this prison.
  Since that time, when I last came to the floor, our Federal prison 
system has gotten even more overcrowded. Last spring, I talked about 
the fact that our prison system was 35 percent overcrowded, and that 
for medium-security facilities it was 39 percent overcrowded. Since 
that time, we have had a net increase of 7,541 Federal prisoners in our 
system, so now our entire prison system is 39 percent overcrowded and 
medium-security prisons are 51 percent over capacity. If we are going 
to ensure safety, we need to begin to open some of these new 
facilities, and I am very pleased that we have language in the 
Commerce, Justice, and Science bill that would address opening these 
new facilities, including the Berlin prison.
  This is a project that has bipartisan support. The new prison in 
Berlin was started under President Bush. It was continued under 
President Obama. The congressional delegation in New Hampshire supports 
the facility. It will create about 340 jobs in a region of the State 
that is very much in need of new jobs because it has lost a lot of its 
manufacturing base because the paper industry has moved offshore. It 
would have an impact of about $40 million to the region of the State 
where it is located which is, again, very important for a region that 
economically is in need of jobs and economic activity.
  The community of Berlin has already spent $3 million for water and 
sewer upgrades. Since 2008, the residents of Berlin, local businesses, 
and State workforce development officers have been preparing for the 
prison to open. The community and local government officials have 
partnered with the business community to coordinate their resources. 
They have been waiting for these jobs.
  When the New Hampshire Department of Employment Security first began 
reaching out to people in the North Country about the opportunities in 
the prison, the workshops were full of job seekers. We have been 
talking a lot about job creation here in this Congress, and now we have 
an opportunity to act on this bill to get people back to work in 
northern New Hampshire.
  Families in New Hampshire and across the country are struggling. We 
need the jobs this legislation is going to create. At a time when we 
should be focused on reining in wasteful spending, we can't continue to 
spend millions of taxpayer dollars to maintain an empty building. So 
this funding is good economic policy, it is good fiscal policy, and I 
certainly intend to support this piece of the appropriations 
legislation before us, and I hope all of my colleagues will do the 
same.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Maryland.
  Ms. MIKULSKI. Does the Senator from Idaho wish to offer an amendment?
  Mr. VITTER. And if I could address the Senator through the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. I have a modification to my amendment which will take 
about 1\1/2\ minutes.
  Ms. MIKULSKI. Madam President, what I wish to suggest as a way of 
proceeding, with the concurrence of the other side, is the Senator 
modify his amendment, because that is quick. Then we will go to the 
Senator from Idaho. Then I have some rebuttals to some of the 
amendments offered.
  The PRESIDING OFFICER. The Senator from Louisiana.


                     Amendment No. 769, As Modified

  Mr. VITTER. Madam President, I call for regular order with respect to 
amendment No. 769 and that the amendment be modified with the changes 
that are at the desk.
  The PRESIDING OFFICER. The amendment is pending. The amendment will 
be so modified.
  The amendment, as modified, is as follows:

       On page 83, between lines 20 and 21, insert the following:
       Sec. __.  None of the funds made available in this Act for 
     the Food and Drug Administration shall be used to prevent an 
     individual not in the business of importing a prescription 
     drug (within the meaning of section 801(g) of the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 381(g))) from 
     importing a prescription drug from Canada that complies with 
     the Federal Food, Drug, and Cosmetic Act: Provided, That the 
     prescription drug may not be (1) a controlled substance, as 
     defined in section 102 of the Controlled Substances Act (21 
     U.S.C. 802); or (2) a biological product, as defined in 
     section 351 of the Public Health Service Act (42 U.S.C. 262). 
     None of the funds made available in this Act for the Food and 
     Drug Administration shall be used to change the practices and 
     policies of the Food and Drug Administration, in effect on 
     October 1, 2011, with respect to the importation of 
     prescription drugs into the United States by an individual, 
     on the person of such individual, for personal use, with 
     respect to such importation by individuals from countries 
     other than Canada.

  Mr. VITTER. Madam President, I ask unanimous consent that Senators 
Stabenow and Bingaman be added as cosponsors to the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VITTER. In closing, let me state that this again very tightly 
narrows the amendment to a very specific purpose, to allow safe FDA-
approved prescription drugs to be reimported for individual consumer 
use from Canada, and Canada only.
  In doing so, this makes it a nearly identical amendment to that which

[[Page S6731]]

was approved in the last Senate on a strong bipartisan vote. I urge and 
look forward to that same strong support for this Vitter amendment No. 
769.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.


                 Amendment No. 814 to Amendment No. 738

  Mr. CRAPO. Madam President, I ask unanimous consent to set aside the 
pending amendment, and I call up my amendment No. 814.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from Idaho [Mr. Crapo], for himself, Mr. 
     Johanns, Mr. Shelby, Mr. Toomey, Mr. Moran, and Mr. Vitter, 
     proposes an amendment numbered 814 to amendment No. 738.

  Mr. CRAPO. I ask unanimous consent that the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To provide for the orderly implementation of the provisions 
    of title VII of the Dodd-Frank Wall Street Reform and Consumer 
                Protection Act, and for other purposes)

       On page 83, between lines 20 and 21, insert the following:
       Sec. __.  None of the funds made available by this Act may 
     be used by the Commodity Futures Trading Commission--
       (1) to promulgate any final rules under the Dodd-Frank Wall 
     Street Reform and Consumer Protection Act (Public Law 111-
     203; 124 Stat. 1376) (including under any law amended by that 
     Act) or the Commodity Exchange Act (7 U.S.C. 1 et seq.), 
     until the Commodity Futures Trading Commission, jointly with 
     the Securities and Exchange Commission and the prudential 
     regulators (as defined in section 1a of the Commodity 
     Exchange Act (7 U.S.C. 1a))--
       (A) has, pursuant to the notice and comment provisions of 
     section 553 of title 5, United States Code, adopted an 
     implementation schedule for title VII of the Dodd-Frank Wall 
     Street Reform and Consumer Protection Act (15 U.S.C. 8301 et 
     seq.) (including amendments made by that title) (referred to 
     this section as ``the title'') that sets forth a schedule for 
     the publication of final rules required by the title that--
       (i) begins with the publication of the rules required under 
     section 712(d)(1) of that Act (15 U.S.C. 8302); and
       (ii) includes provisions that require a rulemaking and 
     provisions that do not require a rulemaking; and
       (B) has completed and submitted to Congress an analysis 
     that includes--
       (i) a quantitative analysis of the effects of the title on 
     United States economic growth and job creation;
       (ii) an assessment of the implications of the title for 
     cross-border activity by, and international competitiveness 
     of, United States financial institutions, companies, and 
     investors;
       (iii) an assessment of whether and how the definitional, 
     clearing, trading, reporting, recordkeeping, real-time 
     reporting, registration, capital, margin, business conduct, 
     position limits, and other requirements of the title work 
     together, and how those requirements affect market depth and 
     liquidity;
       (iv) an assessment of the implications of any lack of 
     harmonization by the Securities and Exchange Commission, the 
     Commodity Futures Trading Commission, and the prudential 
     regulators with respect to the timing and the substance of 
     the rules of those entities; and
       (v) an analysis of the progress of members of the Group of 
     20 and other countries toward implementing derivatives 
     regulatory reform, including material differences in the 
     schedule for implementation (as well as material differences 
     in definitions, clearing, trading, reporting, registration, 
     capital, margin, business conduct, and position limits) and 
     the possible and likely effects on United States 
     competitiveness, market liquidity, and financial stability; 
     or
       (2) to further define the terms--
       (A) ``swap'' and ``security-based swap'' to include--
       (i) for purposes of section 4s(e) of the Commodity Exchange 
     Act (7 U.S.C. 6s(e)) and section 15F(e) of the Securities 
     Exchange Act of 1934 (15 U.S.C. 78o-10(e)), an agreement, 
     contract, or transaction that would otherwise be a swap or 
     security-based swap, in which 1 of the counterparties is 
     not--

       (I) a swap dealer or major swap participant;
       (II) an investment fund that--

       (aa) has issued securities (other than debt securities) to 
     more than 5 unaffiliated persons;
       (bb) would be an investment company (as defined in section 
     3 of the Investment Company Act of 1940 (15 U.S.C. 80a-3)) 
     but for paragraph (1) or (7) of subsection (c) of that 
     section; and
       (cc) is not primarily invested in physical assets 
     (including commercial real estate) directly or through an 
     interest in an affiliate that owns the physical assets;

       (III) a regulated entity, as defined in section 1303 of the 
     Federal Housing Enterprises Financial Safety and Soundness 
     Act of 1992 (12 U.S.C. 4502); or
       (IV) a commodity pool that is predominantly invested in any 
     combination of commodities, commodity swaps, commodity 
     options, or commodity futures;

       (ii) an agreement, contract, or transaction that would 
     otherwise be a swap or security-based swap, and that is 
     entered into by a party that is controlling, controlled by, 
     or under common control with its counterparty; or
       (iii) except with respect to any law (including rules and 
     regulations) prohibiting fraud or manipulation, an agreement, 
     contract, or transaction that would otherwise be a swap or 
     security-based swap and--

       (I) is entered into outside of the United States between 
     counterparties established under the laws of any jurisdiction 
     outside of the United States (including a non-United States 
     branch of a United States entity licensed and recognized 
     under local law outside of the United States);
       (II) has a valid business purpose;
       (III) is not structured with the sole purpose of evading 
     the requirements of the title; and
       (IV) is not reasonably expected to have a serious adverse 
     effect on the stability of the United States financial 
     system; and

       (B) ``major swap participant'' and ``major security-based 
     swap participant'' in a manner that does not distinguish 
     between--
       (i) net and gross exposures; and
       (ii) collateralized and uncollateralized positions.

  Mr. CRAPO. I wish to note that as cosponsors of the amendment, 
Senators Johanns, Shelby, Toomey, Moran, Vitter, and Kirk are also 
supportive.
  The unprecedented scope and pace of agency rulemaking in the United 
States today is posing incredible uncertainty and threat to our 
economy. Americans today know that jobs are the No. 1 issue we face, 
and consistently across the country Americans are also recognizing that 
the explosion of government regulatory action is one of the huge 
impediments to our job creation efforts in America.
  Unfortunately, under the Dodd-Frank Act, we are seeing one of the 
most significant rulemaking levels of activity in every part of our 
economy. Many of the proposed rules do not give sufficient 
consideration to how they will affect Main Street or our economy as a 
whole, how they will interact with one another or, frankly, how they 
will impact our global competitiveness.
  Through this amendment, I focus on the CFTC to send a strong message 
to all regulators involved in the rulemaking process that we cannot 
afford regulations that unnecessarily burden our businesses, our 
economy, and our competitive position in the global marketplace.
  This amendment does three basic things:
  It prohibits funds from being used by the CFTC to promulgate any 
final rules until the agency substantiates that those rules are 
economically beneficial; secondly, it adheres to congressional intent 
to provide end users with a clear exemption from margin requirements; 
and, third, it sets clear bounds on the overseas applications of the 
derivatives requirements.
  With regard to the process portion of the amendment, in February, 
when many members of the banking committee wrote to our financial 
regulators, we strongly urged them to employ fundamental principles of 
good regulation in their statutory mandate and not to sacrifice quality 
and fairness in exchange for speed. We had two main concerns: that the 
regulators are not allowing adequate time for meaningful public comment 
on their proposed rules; and that the regulators are not conducting 
rigorous quantitative analysis of the costs and benefits of their rules 
and the effects those rules can have on our economy and our competitive 
position in a global marketplace.
  On April 15, 2011, the Office of Inspector General for the CFTC 
issued a report of an investigation entitled ``An Investigation 
Regarding the Cost Benefit Analyses Performed by the Commodity Futures 
Trading Commission in Connection with Rulemakings Undertaken Pursuant 
to the Dodd-Frank Act.'' Unfortunately, the IG report demonstrated that 
the CFTC is not using rigorous economic analysis to shape its 
rulemaking.
  In April, Harvard Law Prof. Hal Scott testified on urgently needed 
fixes in the Dodd-Frank rulemaking process. We also began hearing from 
CFTC Commissioners Scott O'Malia and Jill Sommers about problems with 
the rulemaking process, specifically with economic analysis.
  In August, CFTC Commissioner Scott O'Malia stated that the current 
process

[[Page S6732]]

of enacting rules under the Dodd-Frank Wall Street Reform Act is 
inadequate, and excoriated the regulatory body for not putting together 
a clear rulemaking order and implementation schedule for public 
comment.
  Again, in August, CFTC Commissioner Jill Sommers stated:

       I believe it is a mistake for us to begin the process 
     without a plan to logically sequence our consideration of 
     final rules along with a transparent implementation plan.

  In July, the SEC's proxy access rule became the first Dodd-Frank rule 
to be successfully challenged in court for failing to adequately 
analyze its economic costs and benefits. In the unanimous decision to 
vacate the rule, U.S. Circuit Court Judge Douglas Ginsburg wrote:

       The Commission inconsistently and opportunistically framed 
     the costs and benefits of the rule; failed adequately to 
     quantify the certain costs or to explain why those costs 
     could not be quantified; neglected to support its predictive 
     judgments, contradicted itself; and failed to respond to the 
     substantial problems raised by commenters.

  In this amendment, we require the CFTC to fix its rulemaking process 
by prohibiting funding for any final CFTC rules until the Commission, 
jointly with the SEC and other prudential regulators, publishes a 
schedule outlining the order in which the agencies will consider and 
implement the final rules. Affected market participants will be able to 
weigh in and be heard about how rules should be adopted and 
implemented. Agencies will have to work together to come up with 
coordinated schedules for proceeding with rulemaking and 
implementation. The agencies will have to take into consideration 
economic impacts, international competitiveness, the interaction of 
their rules one with another, and the implications of inconsistencies 
in the approaches taken by different regulators.
  It is more important that the CFTC and other agencies allow for 
meaningful public comment and economic analysis than it is to rush 
through these rules and risk undermining the integrity of the process 
and diminishing the utility of this important market.
  Secondly, we protect end users from the burdensome margin 
requirements of the statute. When the Dodd-Frank conference was 
reopened to deal with the scoring issue, Senators Dodd and Lincoln 
acknowledged that the language for end users was not perfect, and tried 
to clarify the intent of the language with a joint letter, stating:

       The legislation does not authorize the regulators to impose 
     margins on end users, those exempt entities that use swaps to 
     hedge or mitigate commercial risk.

  However, regulators have interpreted the actual Dodd-Frank 
legislative language as providing authority to require end users to 
post margin. This amendment provides certainty for Main Street 
businesses that played no role in the financial crisis by establishing 
a clear exemption from excessive margin requirements.
  End users have emphasized the critical importance of addressing this 
problem. In its letter, the Coalition for Derivatives End-Users 
highlighted the stakes of getting this issue right. They said:

       While the Dodd-Frank Act and implementing regulations do 
     much to increase transparency and reduce systemic risk in the 
     derivatives market, they include provisions that, if 
     implemented as proposed or otherwise expected, would impose 
     unnecessary burdens on end-user companies. While we believe 
     it is important to reduce risk within our financial markets, 
     transactions with end users have not been found to pose 
     systemic risk. Our companies and our economy cannot afford to 
     unnecessarily tie up capital that would otherwise be used to 
     promote growth and create jobs.

  MillerCoors echoed these sentiments when it said:

       This amendment protects our ability to efficiently buy 
     malting barley, hops and other ingredients used to brew our 
     beers.

  FMC and the National Association of Corporate Treasurers noted:

       This legislation addresses concerns that are of critical 
     importance to end-users--companies using derivatives to 
     reduce business and financial risk and not to speculate. FMC 
     and the other members of the NACT support legislation 
     enabling end-users to continue their cost-effective use of 
     derivatives to manage the commercial risks that they face 
     when they make investments to expand plant and equipment, 
     conduct research and development, build inventories to 
     support higher sales, and to sustain and ultimately grow 
     jobs.

  The third thing the amendment does is to limit the extraterritorial 
reach of Dodd-Frank--of the CFTC rulemaking to streamline regulation 
and protect American competitiveness. Chairman Johnson and Congressman 
Frank recently sent a letter to the regulators that brought up the 
concern that the extraterritorial imposition of margin requirements 
raises questions about the consistency with Congressional intent 
regarding title VII.
  They pointed out that Congress generally limited the territorial 
scope of title VII activities to within the United States. 
Extraterritorial application of one nation's laws to another nation's 
markets and firms is especially problematic in a global market such as 
derivatives, where it is common for counterparties based in different 
parts of the world to engage in transactions with each other.
  The historical practice of U.S. regulators is to recognize and defer 
to foreign regulators when registered entities engaged in activities 
outside the United States are subject to comparable foreign regulation.
  Given recent statements and actions by U.S. regulatory agencies, 
there is concern that proposals could create uncertainty as to how 
additional regulations could apply across borders and alter regulatory 
precedent. While there is bipartisan support from Members of Congress 
to encourage our regulators to work with their international 
counterparts to seek broad harmonization, there is a growing list of 
noteworthy and critical items that we are seeing related to the lack of 
progress on international harmonization.
  The CFTC and the SEC are taking divergent approaches on some 
derivatives rules, raising questions about whether we can harmonize 
even within our own borders, let alone with foreign regulators. Foreign 
jurisdictions in Europe, not to mention Asia and Latin America, have 
outright rejected many reforms--such as the section 716 swap pushout 
provisions. It remains unclear as to what foreign jurisdictions will 
impose a margin requirement such as proposed by our prudential 
regulators. Simply put, the rest of the world is not following us in a 
number of critical areas.
  Third parties, including market analysts and economists and 
academics, have also indicated that these rules will negatively impact 
U.S. competitiveness and growth. Our Fed Chairman Bernanke recently 
warned that the extraterritorial application of margin rules could 
create a significant competitive disadvantage for U.S. companies. We 
can't force Europe or Asia or Latin America to follow, and if our rules 
are finalized in the United States before other jurisdictions' rules, 
we risk substantially harming U.S. competitiveness, growth, and 
financial stability. That is why this amendment sets clear bounds on 
the overseas applications of the derivatives requirements, while 
allowing regulators to stop systemically dangerous transactions 
intended to evade U.S. requirements.
  In conclusion, there can be no doubt about our resolve to address the 
root causes of the financial crisis. But equally, there can be no doubt 
about our resolve to ensure that we do this with great care. Failing to 
do so will threaten our businesses, our economy, and our 
competitiveness globally. I urge my colleagues to support this 
amendment as an important step to ensuring that while working together 
for the former, we do not neglect the latter.
  I yield the floor.


                 Amendment No. 879 to Amendment No. 738

  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Madam President, as provided under the previous 
unanimous consent order, I ask the pending amendment be set aside so I 
may call up my amendment No. 879.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The bill clerk read as follows:

       The Senator from Oregon [Mr. Merkley] proposes an amendment 
     numbered 879 to amendment No. 738.

  Mr. MERKLEY. I ask unanimous consent further reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

[[Page S6733]]

(Purpose: To prohibit amounts appropriated under this Act to carry out 
parts A and B of subtitle V of title 49, United States Code, from being 
expended unless all the steel, iron, and manufactured products used in 
             the project are produced in the United States)

       On page 264, between lines 9 and 10, insert the following:

     SEC. 153. BUYING GOODS PRODUCED IN THE UNITED STATES.

       (a) Compliance.--None of the funds made available under 
     this title to carry out parts A and B of subtitle V of title 
     49, United States Code, may be expended by any entity unless 
     the entity agrees that such expenditures will comply with the 
     requirements under this section.
       (b) Preference.--
       (1) In general.--Notwithstanding any other provision of 
     law, the Secretary of Transportation may not obligate any 
     funds appropriated under this title to carry out parts A and 
     B of subtitle V of title 49, United States Code, unless all 
     the steel, iron, and manufactured products used in the 
     project are produced in the United States.
       (2) Waiver.--The Secretary of Transportation may waive the 
     application of paragraph (1) in circumstances in which the 
     Secretary determines that--
       (A) such application would be inconsistent with the public 
     interest;
       (B) such materials and products produced in the United 
     States are not produced in a sufficient and reasonably 
     available amount or are not of a satisfactory quality; or
       (C) inclusion of domestic material would increase the cost 
     of the overall project by more than 25 percent.
       (c) Labor Costs.--For purposes of this subsection 
     (b)(2)(C), labor costs involved in final assembly shall not 
     be included in calculating the cost of components.
       (d) Manufacturing Plan.--The Secretary of Transportation 
     shall prepare, in conjunction the Secretary of Commerce, a 
     manufacturing plan that--
       (1) promotes the production of products in the United 
     States that are the subject of waivers granted under 
     subsection (b)(2)(B);
       (2) addresses how such products may be produced in a 
     sufficient and reasonably available amount, and in a 
     satisfactory quality, in the United States; and
       (3) addresses the creation of a public database for the 
     waivers granted under subsection (b)(2)(B).
       (e) Waiver Notice and Comment.--If the Secretary of 
     Transportation determines that a waiver of subsection (b)(1) 
     is warranted, the Secretary, before the date on which such 
     determination takes effect, shall--
       (1) post the waiver request and a detailed written 
     justification of the need for such waiver on the Department 
     of Transportation's public website;
       (2) publish a detailed written justification of the need 
     for such waiver in the Federal Register; and
       (3) provide notice of such determination and an opportunity 
     for public comment for a reasonable period of time not to 
     exceed 15 days.
       (f) State Requirements.--The Secretary of Transportation 
     may not impose any limitation on amounts made available under 
     this title to carry out parts A and B of subtitle V of title 
     49, United States Code, which--
       (1) restricts a State from imposing requirements that are 
     more stringent than the requirements under this section on 
     the use of articles, materials, and supplies mined, produced, 
     or manufactured in foreign countries, in projects carried out 
     with such assistance; or
       (2) prohibits any recipient of such amounts from complying 
     with State requirements authorized under paragraph (1).
       (g) Certification.--The Secretary of Transportation may 
     authorize a manufacturer or supplier of steel, iron, or 
     manufactured goods to correct, after bid opening, any 
     certification of noncompliance or failure to properly 
     complete the certification (except for failure to sign the 
     certification) under this section if such manufacturer or 
     supplier attests, under penalty of perjury, and establishes, 
     by a preponderance of the evidence, that such manufacturer or 
     supplier submitted an incorrect certification as a result of 
     an inadvertent or clerical error.
       (h) Review.--Any entity adversely affected by an action by 
     the Department of Transportation under this section is 
     entitled to seek judicial review of such action in accordance 
     with section 702 of title 5, United States Code.
       (i) Minimum Cost.--The requirements under this section 
     shall only apply to contracts for which the costs exceed 
     $100,000.
       (j) International Agreements.--This section shall be 
     applied in a manner consistent with United States obligations 
     under international agreements.
       (k) Fraudulent Use of ``Made in America'' Label.--An entity 
     is ineligible to receive a contract or subcontract made with 
     amounts appropriated under this title to carry out parts A 
     and B of subtitle V of title 49, United States Code, if a 
     court or department, agency, or instrumentality of the 
     Government determines that the person intentionally--
       (1) affixed a ``Made in America'' label, or a label with an 
     inscription having the same meaning, to goods sold in or 
     shipped to the United States that are used in a project to 
     which this section applies, but were not produced in the 
     United States; or
       (2) represented that goods described in paragraph (1) were 
     produced in the United States.

  Mr. MERKLEY. Madam President, I rise to offer this amendment for the 
consideration of this body because it is important to boosting American 
jobs and manufacturing and ensuring that more of our American dollars 
are spent here at home. When the Federal Government spends tax dollars, 
it should be looking to American companies to provide goods and 
services. Recently, an issue came to light that gave me substantial 
concern.
  A few months ago, a bid was awarded to a Chinese company to provide 
steel for a freight rail bridge in Alaska, the Tanana Bridge. There was 
strong American competition. However, the award went to the Chinese 
company.
  If there were a level playing field, that would be one thing. But, in 
fact, China is employing a three-tiered strategy that provides enormous 
subsidies to its own manufacturing, tilting the playing field 
considerably. The first part of that strategy is to peg its currency so 
its products have a 25- to 40-percent subsidy--equivalent to that 
subsidy--because of the pegging of the currency.
  The second piece is it provides all kinds of subsidies that are not 
actually permitted under WTO, but China is doing it anyway. These go 
directly to the heart of manufacturing competition. Recently, a 
bipartisan amendment was put forward. I applaud my colleagues from 
Wyoming, Senator Enzi and Senator Barrasso. We said China is required 
under the WTO to post its subsidies, to notify the parties of its 
subsidies. It has done so only once since 2006. It is in violation. 
Also, under the WTO, the American Trade Representative is authorized to 
counternotify if China fails to do so--and we had not done so. So we 
called upon our Trade Representative to counternotify. Very 
interestingly, the next week we get this list of 200 subsidies that 
China is utilizing outside the framework of WTO to subsidize its 
manufacturers and compete unfairly against the United States.
  The third part of the strategy is that China is using its central 
bank as the only authorized bank to control the interest rate on 
deposits and thereby also being able to control the interest rates on 
loans in a fashion that provides enormous subsidies to our competitors 
in China. Until recently, America had stood on the sidelines and not 
confronted any of these three Chinese strategies other than to say in 
some cases that are relevant to our national defense and our national 
transportation system there needs to be a provision to buy products 
inside America.
  But this particular project fell between the cracks. Although the 
funds came from the Defense Department, it was not a straight Defense 
Department program, and although it was a rail program, it was not a 
passenger rail program. This amendment closes this loophole.
  At a time when Americans everywhere are searching for jobs, we should 
be supporting American companies that employ and hire Americans, 
especially to make sure American companies are not disadvantaged by 
this three-tier Chinese strategy that tilts the playing field against 
our companies and thereby destroys jobs in America. Under this 
amendment, freight rail transportation contracts exceeding $100,000, 
funded in the appropriations bill, would use steel, iron, and 
manufactured products produced in America.
  There is flexibility provided to the Secretary of Transportation to 
waive this requirement under one of three scenarios--if the application 
is inconsistent with the public interest, if the materials and products 
are not available in sufficient quantity or quality or that the 
inclusion of domestic material would increase the price by more than 25 
percent.
  I am not sure 25 percent is high enough, given that just pegging its 
currency creates a 25-to 40-percent subsidy for Chinese products, so 
this may not go far enough. This may only go a small portion of the way 
to leveling the playing field. I lay it down as a marker that we should 
create fairness so American manufacturers can compete. This amendment 
may not go as far as it should, but it is certainly a stride in the 
right direction. For that reason, I urge my colleagues to support

[[Page S6734]]

it. If we do not make things in America, we will not have a middle 
class in America.
  The PRESIDING OFFICER. The Senator from Kansas.


                 Amendment No. 815 to Amendment No. 738

  Mr. MORAN. Madam President, I ask unanimous consent the pending 
amendment be set aside and the Moran amendment No. 815 be made the 
order of the day in the Senate.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The bill clerk read as follows:

       The Senator from Kansas [Mr. Moran] proposes an amendment 
     numbered 815 to amendment No. 738.

  Mr. MORAN. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 6, line 17, insert ``: Provided further, That 
     $8,000,000 of the amount made available by this heading shall 
     be transferred to carry out the program authorized under 
     section 14 of the Watershed Protection and Flood Prevention 
     Act (16 U.S.C. 1012)'' before the period at the end.

  Mr. MORAN. Madam President, the amendment I am offering today was one 
I discussed in the agricultural appropriations subcommittee. I am a 
Member of that subcommittee and am very interested in the topic of the 
appropriations for the Department of Agriculture. This amendment would 
transfer $8 million from the Department's administrative account to the 
Watershed Rehabilitation Program. The Watershed Rehabilitation Program 
is a bit broader than this, but basically what we are talking about are 
PL-566 watershed structures. Across our country, more than 1,000 
structures have been built over a long period of time. Many of them are 
up to 50 years old. These structures are built for purposes of flood 
control, for nutrient management, for conservation, wildlife habitat, 
for recreation. Clearly, these structures have been an important 
component of the economy and well-being of communities and people 
across America for a long time.
  In fact, according to the Natural Resources Conservation Service of 
the Department of Agriculture, these PL-566 structures provide 
agricultural benefits at their estimate of $404 million. These benefits 
are things such as erosion control, animal waste management, water 
conservation, water quality improvement, irrigation efficiency, changes 
in land use--things such as that.
  There are also nonagricultural benefits which the NRCS estimates at 
$877 million in benefits. These are associated with recreation, fish 
and wildlife, rural water supply, water quality, municipal and 
industrial water supply, incidental recreation uses. Then, of course, 
what is particularly important as we look at what has happened in our 
country during this season, during this year: flood 
control. Agricultural flood control by NRCS estimates is a value of 
$320 million; nonagricultural flood protection, $425 million. We are 
talking about flood control structures that have benefited, for a 
number of reasons, about $2 billion. This amendment does not create the 
opportunity to construct more of those structures. The problem this 
amendment addresses is that those structures are aging. As I said 
earlier, many of them are nearly 50 years old.

  In my view, it is very much like the analogy we have with bridges. We 
focused some attention over the last several years on deteriorating 
bridges and infrastructure in our highway system. We know if we don't 
provide the maintenance, the deterioration occurs, and ultimately we 
could have a catastrophe. That is what I am trying to address here, is 
my fear that in the absence of paying attention to the maintenance of 
these flood control structures, we run the potential of having a 
disaster. Not only do the benefits accrue to agriculture and to 
communities and water supply and recreation, but the real thing here is 
about the loss of property values and, more importantly, the loss of 
life. In the absence of maintaining these structures, we run the risk 
that the investment we have made over decades begins to disappear. Not 
only do we lose the value of the asset, we potentially lose life by 
those who would be harmed by the flooding that will occur in the 
absence of these flood control measures.
  Therefore, a watershed rehabilitation program was created years ago. 
The problem in the funding we have today in the appropriation bill 
before us is there is no money, zero money in the bill, to maintain 
these structures. So ours is a very modest proposal to keep the program 
ongoing of transferring $8 million into that rehabilitation program to 
maintain those structures and prevent bad things from happening. This 
is probably woefully inadequate in regard to the amount of resources 
that should be devoted to this. Looking at the bill and looking at the 
structure of the bill and how we tried try to find the right priorities 
and the balance within the agriculture appropriations subcommittee and 
at the full Appropriations Committee, we concluded that we had the 
opportunity to at least put $8 million into the program.
  The watershed rehabilitation program is administered by the Natural 
Resource and Conservation Service, and here is what it is described to 
do. It assists project sponsors with rehabilitation of aging project 
dams. Only dams installed under PL-566 and a couple of other programs 
are eligible. The purpose of this program is to extend the service life 
of dams and meet applicable safety and performance standards. Priority 
is given by NRCS to those structures that pose the highest risk to life 
and property. Projects are eligible when hazard to life and property 
increases due to downstream development and where there is a need for 
rehabilitation to extend the planned life of the structure.
  What that is saying is in many of these instances where the structure 
has been built, almost 50 years ago, communities have been built 
downstream and the dam becomes even more important to protect property 
and life for that development. So we are here trying make certain there 
is a level of funding for repairing and replacing deteriorated 
components, repairing damage from catastrophic events, such as the 
floods we have experienced this year, and upgrading the structures to 
meet new dam safety laws or to even decommission a structure.
  I would guess we are not going to fund new structures here in this 
Congress in this fiscal environment. We ought to at least take the 
responsibility of providing money to maintain the structures that are 
there. In my view, it is important that we do so. Unlike in past years, 
we can be assured that the money we put into this bill will go to the 
highest priority projects, the dams that are in the most need of repair 
and maintenance. There is no opportunity for Members of Congress, under 
our rules here in the Senate, to earmark these dollars, and so the 
USDA, the Department of Agriculture, through the Natural Resource and 
Conservation Service, will make those decisions.
  We are not one of the States that has the most dam structures, 
although it is an important aspect of maintaining water in its proper 
place and to provide wildlife habitat and conservation practices and 
improve the agricultural environment. Those structures are important to 
us, and we see this each and every day.
  In fact, for most of the time I have been in Congress, we do an 
annual what I call conservation tour. We look at the role of the 
Department of Agriculture, the private sector, wildlife and habitat 
organizations, and how they partner and come together to make good 
things happen to improve our environment. This year we focused on water 
quality and water quantity. Clearly this program of PL-566 structures 
is critical.
  When I talk about that partnership, it would be important for Members 
of the Senate to know that this program requires a 35-percent local 
match. There is local money. The sponsors of these projects, these dams 
across our country, will have to find local resources in order to make 
that match.
  I would ask the Senate to approve the amendment I am offering today. 
Again, it is something I raised in our subcommittee and raised in our 
full committee with the hopes we would be able to find a satisfactory 
offset, and from my view, the priority we place on this program is one 
that is deserving of Senate support.
  I offer the amendment as I described.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.

[[Page S6735]]

          Amendment No. 771, as Modified, to Amendment No. 738

  Mr. BINGAMAN. Madam President, I call up amendment No. 771, and ask 
that it be modified with the changes that are already at the desk.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
set aside.
  The clerk will report the amendment, as modified.

       The Senator from New Mexico [Mr. Bingaman], for himself and 
     Ms. Stabenow, proposes an amendment No. 771, as modified, to 
     amendment No. 738.

  Mr. BINGAMAN. I ask unanimous consent that reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 771), as modified, is as follows:

(Purpose: To provide an additional $4,476,000, with an offset, for the 
 Office of the United States Trade Representative to investigate trade 
 violations committed by other countries and to enforce the trade laws 
  of the United States and international trade agreements, which will 
fund the Office at the level requested in the President's budget and in 
H.R. 2596, as reported by the Committee on Appropriations of the House 
                          of Representatives)

       On page 209, between lines 2 and 3, insert the following:
       Sec. 542. (a) The matter under the heading ``salaries and 
     expenses'' under the heading ``Office of the United States 
     Trade Representative'' in title IV of this division is 
     amended by striking ``$46,775,000'' and inserting 
     ``$51,251,000''.
       (b) Of the unobligated balance of amounts made available to 
     the Department of Justice for a fiscal year before fiscal 
     year 2012 for the ``Legal Activities, Assets Forfeiture 
     Fund'' account, there are permanently rescinded $8,000,000, 
     in addition to the amount rescinded pursuant to section 
     529(c)(2).

  Mr. BINGAMAN. Madam President, this is an amendment to increase 
funding for the U.S. Trade Representative so that the Trade 
Representative can conduct trade enforcement activities.
  The amendment is cosponsored by Senator Stabenow, and I ask unanimous 
consent to add Senator Coons and Senator Brown from Ohio as cosponsors 
as well.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. This amendment would provide an additional $4,476,000 
to the Trade Representative's Office above the level that is provided 
for in the bill. That amount is fully offset. It would fund the USTR at 
$51,251,000 this year. That is the same level of funding that the 
President has in his budget request, and also the same level of funding 
that has been arrived at in the House Appropriations Committee in their 
legislation. Clearly, there is bipartisan support for this level of 
funding for the Trade Representative's office.
  Last week, as all of us will remember, we sent to the President three 
new free-trade agreements. I supported those free-trade agreements 
because they promised to open new markets for American businesses so we 
can sell more goods that are produced here in the United States. 
However, if American businesses and workers are to benefit from trade 
agreements, the United States needs to do more to ensure our trading 
partners are competing fairly. This means we have to enforce the trade 
agreements and the U.S. trade laws. Right now, in my view, we are not 
providing enough resources to the Trade Representative's Office for 
enforcement activities.
  The USTR's general counsel's office has 30 attorneys. Of that 30, 22 
are staff attorneys actually involved in day-to-day litigation. These 
two dozen or so people are responsible for preparing and prosecuting 
trade dispute cases at the World Trade Organization or under the 
dispute resolution mechanisms in our free-trade agreements. They are 
also responsible for defending the United States when other countries 
file complaints against us. In my view, this is not enough staff to 
respond in a timely manner to the numerous allegations about unfair 
trade practices that are being committed by our trading partners.
  For example, the U.S. Trade Representative's investigation into 
China's export restraints on rare earth minerals has been underway for 
more than 2 years. There are many other concerns about China's trade 
practices. In fact, many have been discussed here on the Senate floor 
today. Does China provide subsidies to its companies that are 
inconsistent with the World Trade Organization? Is China unfairly 
closing its markets to U.S. goods or unfairly requiring U.S. companies 
to transfer technology and intellectual property to Chinese companies 
as a condition of doing business in China? These are serious questions 
that American businesses have raised informally. In fact, the United 
Steel Workers formally raised these issues in a section 301 petition 
last year. Many of these allegations are not fully investigated because 
we simply have not committed the resources in the U.S. Trade 
Representative's Office to do the investigations.
  Only two attorneys in the U.S. Trade Representative's general 
counsel's office work on the rare earths and raw materials cases. USTR 
needs the resources to act quickly to combat unfair trade practices 
before U.S. industries are irreparably harmed.
  The Senate also recently demonstrated bipartisan support for trade 
enforcement when it passed the Currency Exchange Rate Oversight Reform 
Act. That was on October 11. The vote there was 63 to 35. I voted for 
that bill as well. This amendment I am offering today would help 
provide the U.S. Trade Representative with additional resources to 
enforce the provisions in that bill as well. I urge my colleagues to 
support the amendment.
  Let me say a few words about the offset. The amendment would propose 
to rescind $8 million from the Department of Justice asset forfeiture 
fund. This fund contains the funds that DOJ obtains from seizing and 
selling assets, for example, speedboats that are seized from drug 
dealers. The Department of Justice uses some of these funds for law 
enforcement, but most of the funds are not used. The fund had a balance 
of more than $841 million at the end of fiscal year 2009; $974 million 
at the end of 2010; $701 million at the end of fiscal year 2011. The 
Department of Justice projects it will collect more than $1.7 billion 
from seized assets this year.
  Because of the excess funds in this fund, this asset forfeiture fund, 
the President's budget suggested that we rescind 620 million of those 
dollars. The proposal I am making in this as an offset is that we add 
an additional $8 million so that the total amount rescinded from that 
fund would be $628 million rather than $620 million. This would leave 
in the fund $474 million, which I believe is an adequate amount to 
ensure that the Department of Justice has the resources it needs for 
its law enforcement activities.
  I believe this is a very meritorious amendment. I think it improves 
the very good legislation that has been brought to the Senate floor by 
the Appropriations Committee, but I hope that this amendment can be 
approved and added to the legislation when the issue is raised for a 
vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Madam President, I want to thank the Senator from New 
Mexico for his comments regarding the U.S. Trade Representative and the 
work of the U.S. Trade Representative's Office.
  We do have to fight unfair and even predatory trade practices. In his 
cogent comments, he spoke about steel. We have been trying to look out 
for steel in my State for some time against these unfair practices. 
Sometimes we win, most of the time we lose ground. The amendment that 
is offered by the Senator from New Mexico would, as he said, increase 
the funding by $4.5 million for a new total of $51 billion. That is 
identical to what the House has. The amendment does rescind money from 
the forfeiture fund which has been used for law enforcement task 
forces, including drugs, human trafficking, and other things. I am 
inclined to support the amendment. I certainly support the 
philosophical thrust of the amendment. We have some questions about the 
offset. We have to get the concurrence of CBO to make sure it is budget 
neutral, and we are consulting with my ranking member to get her 
thoughts and views on it.

  Again, I wish to say to the Senator from New Mexico that I support 
the thrust of the amendment, and I need to consult. We are waiting for 
a comment from our ranking member who is tied up on other legislative 
matters and we expect to hear from her shortly. When we do, we will be 
able to talk about how we will dispose of this amendment.

[[Page S6736]]

 I thank the Senator from New Mexico for his advocacy.


                           Amendment No. 753

  I wish to speak on another matter, which is an amendment that was 
raised, amendment No. 753, on terrorists and prosecutions, which was 
offered by the Senator from New Hampshire earlier. In order to expedite 
proceedings, I withheld my rebuttal, and now I choose to take this time 
to rebut the amendment of the Senator from New Hampshire.
  I rise in opposition to her amendment. Although well intentioned, 
there are serious objections to it. Her amendment would prohibit the 
Department of Justice from trying anyone charged with terrorism-related 
concerns in an article III court in the United States.
  I oppose the amendment for three reasons. First, the amendment is 
unnecessary. The Department of Justice has a strong track record of 
successfully prosecuting terrorists in criminal courts.
  Second, it goes beyond the law that already prohibits certain 
terrorist suspects from even coming into the United States, even for 
prosecution. This was language included in the 2011 continuing 
resolution, and our fiscal year 2012 CJS bill does carry that same 
language. For example, we have already dealt with someone such as 
Khalid Shaikh Mohammed. This amendment also would reach beyond that and 
it wouldn't allow prosecutions on any new non-U.S. citizen on 
terrorism-related charges.
  Third, this amendment is opposed by the Departments of Justice and 
Defense. I don't mean just the Departments. Attorney General Eric 
Holder and Secretary of Defense Leon Panetta object to this amendment. 
They feel they have a working agreement on how best to try terrorists.
  I say to my colleagues, I hope they would reject the amendment of the 
Senator from New Hampshire when it comes up.
  The Department of Justice has a strong record of successfully 
convicting terrorists in their criminal courts. One can look at the 
1993 bombing of the World Trade Center, the attack on the U.S. 
Embassies in East Africa, and the trial and conviction of the Blind 
Sheik. Over 400 terrorists have been tried and convicted since 2001. 
Just last week, another success, the so-called underwear bomber, Umar 
Farouk Abdulmutallab, pled guilty in Federal court in Michigan. There 
were and are major cases resulting in criminal convictions of 
terrorists. So I would suggest the Senator from New Hampshire's concern 
that the Department of Justice is not equipped to try terrorist 
suspects does not have traction because the record shows otherwise.
  I think we have to be careful because this amendment goes beyond 
current law. In 2011, we passed the Defense Authorization Act and then 
the 2011 continuing resolution, both of which prohibit the 
administration from bringing Guantanamo Bay detainees into the United 
States even for prosecution. Congress will have to change restrictions 
in law before Gitmo detainees are transferred to the United States for 
prosecution or detention. Senator Ayotte's amendment would go beyond 
these restrictions to say that anyone indicted on a terrorism-related 
charge who isn't a U.S. citizen couldn't be prosecuted in Federal 
courts, unnecessarily court-stripping.
  I have no sympathy for terrorists, and I am going to make sure we 
honor international law but that we prosecute to the fullest extent 
possible. What we want to be able to show is that the Department of 
Justice has successfully prosecuted them, and this amendment would 
prohibit--this amendment would not be about prosecuting terrorists, it 
would be about choking the Department of Justice.
  Let me go to my third reason, which is the opposition by Secretary 
Leon Panetta and Attorney General Holder. Defense and Justice share 
responsibility for prosecuting terrorists. Justice prosecutes in 
criminal courts and the Defense Department prosecutes in military 
commissions. Defense and Justice have a joint protocol where they work 
together to evaluate terrorist cases to decide where best, where most 
effectively to prosecute them. In light of the restrictions Congress 
has already made on these trials, the Defense Department decided 
earlier this year to resume new charges in the military commissions. 
But Congress shouldn't restrict the ability of the executive branch to 
decide where best to prosecute terrorists--understanding some of the 
dynamics of international law, criminal codes, codes of military 
conduct, to decide where best to prosecute terrorists.
  We don't want to set a dangerous precedent, if Defense or Justice are 
restricted from using every tool available to bring the terrorists to 
justice.
  I hope, when we vote on this amendment, we defeat it, recognizing 
that the Senator from New Hampshire wants to be sure justice is served, 
and we want it too. The best way to serve justice is to let the Defense 
Department and Justice Department decide what court or tribunal is the 
best way to proceed--to ensure the fairness of a trial but to make sure 
we have the best, most effective, most efficient way to do it. I must 
say, when one looks at the record of the Justice Department in 
prosecuting these terrorists in civilian courts, prosecutions were 
achieved, convictions were obtained, and as the world watched it, 
justice was served. I am pretty proud of that.
  I hope we will defeat the amendment of the Senator from New Hampshire 
but that we be united as a Congress and the Senate in making sure we 
prosecute those who engage in any predatory activity directed to the 
United States of America and its citizens.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.


                 Amendment No. 860 to Amendment No. 738

  Mr. BLUNT. Madam President, I ask unanimous consent to temporarily 
set aside the pending amendment to offer the Grassley amendment No. 
860.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Missouri [Mr. Blunt], for Mr. Grassley, 
     proposes an amendment numbered 860 to amendment No. 738.

  Mr. BLUNT. I ask unanimous consent that the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

     (Purpose: To ensure accountability in Federal grant programs 
               administered by the Department of Justice)

       After section 217 of title II of division B, insert the 
     following:
       Sec. 218. (a) Oversight of Department of Justice 
     Programs.--All grants awarded by the Attorney General using 
     funds made available under this Act shall be subject to the 
     following accountability provisions:
       (1) Audit requirement.--Beginning in fiscal year 2012, and 
     in each fiscal year thereafter, the Inspector General of the 
     Department of Justice shall conduct an audit of not fewer 
     than 10 percent of all recipients of grants using funds made 
     available under this Act to prevent waste, fraud, and abuse 
     of funds by grantees.
       (2) Mandatory exclusion.--A recipient of a grant awarded by 
     the Attorney General using funds made available under this 
     Act that is found to have an unresolved audit finding shall 
     not be eligible to receive any grant funds under a grant 
     program administered by the Attorney General during the 2 
     fiscal years beginning after the 6-month period described in 
     paragraph (5).
       (3) Priority.--In awarding grants using funds made 
     available under this Act, the Attorney General shall give 
     priority to eligible entities that, during the 3 fiscal years 
     before submitting an application for a grant, did not have an 
     unresolved audit finding showing a violation in the terms or 
     conditions of a Department of Justice grant program.
       (4) Reimbursement.--If an entity is awarded grant funds by 
     the Attorney General using funds made available under this 
     Act during the 2-fiscal-year period in which the entity is 
     barred from receiving grants under paragraph (2), the 
     Attorney General shall--
       (A) deposit an amount equal to the grant funds that were 
     improperly awarded to the grantee into the General Fund of 
     the Treasury; and
       (B) seek to recoup the costs of the repayment to the fund 
     from the grant recipient that was erroneously awarded grant 
     funds.
       (5) Defined term.--In this subsection, the term 
     ``unresolved audit finding'' means an audit report finding, 
     statement, or recommendation that the grantee has utilized 
     grant funds for an unauthorized expenditure or otherwise 
     unallowable cost that is not closed or resolved within a 6-
     month period beginning on the date of an initial notification 
     of the finding or recommendation.
       (6) Matching requirement.--
       (A) In general.--Unless otherwise explicitly provided in 
     authorizing legislation, no funds may be expended for grants 
     to non-federal entities until a 25 percent non-Federal match 
     has been secured by the grantee to carry out this subsection.

[[Page S6737]]

       (B) Cash requirement.--Not less than 60 percent of the 
     matching requirement described in subparagraph (A) shall be 
     in cash.
       (C) In-kind contributions.--No more than 40 percent of the 
     matching requirement described in subparagraph (A) may be in-
     kind contributions. In this subparagraph, the term `` `in-
     kind contributions' '' means legal or other related 
     professional services and office space that directly relate 
     to the purpose for which the grant was awarded.
       (7) Nonprofit organization requirements.--
       (A) Definition.--For purposes of this section and the grant 
     programs described in this Act, the term ``nonprofit 
     organization'' means an organization that is described in 
     section 501(c)(3) of the Internal Revenue Code of 1986 and is 
     exempt from taxation under section 501(a) of such Code.
       (B) Prohibition.--The Attorney General may not award a 
     grant using funds made available under this Act to a 
     nonprofit organization that holds money in offshore accounts 
     for the purpose of avoiding paying the tax described in 
     section 511(a) of the Internal Revenue Code of 1986.
       (C) Disclosure.--Each nonprofit organization that is 
     awarded a grant using funds made available under this Act and 
     uses the procedures prescribed in regulations to create a 
     rebuttable presumption of reasonableness for the compensation 
     of its officers, directors, trustees and key employees, shall 
     disclose to the Attorney General, in the application for the 
     grant, the process for determining such compensation, 
     including the independent persons involved in reviewing and 
     approving such compensation, the comparability data used, and 
     contemporaneous substantiation of the deliberation and 
     decision. Upon request, the Attorney General shall make the 
     information disclosed under this subsection available for 
     public inspection.
       (8) Administrative expenses.--Unless otherwise explicitly 
     provided in authorizing legislation, not more than 8 percent 
     of the amounts appropriated under this Act may be used by the 
     Attorney General for salaries and administrative expenses of 
     the Department of Justice.
       (9) Conference expenditures.--
       (A) Limitation.--No amounts appropriated to the Department 
     of Justice under title II of division B of this Act may be 
     used by the Attorney General, or by any individual or 
     organization awarded funds under this Act, to host or support 
     any expenditure for conferences, unless the Deputy Attorney 
     General or the appropriate Assistant Attorney General 
     provides prior written authorization that the funds may be 
     expended to host a conference.
       (B) Written approval.--Written approval under subparagraph 
     (A) may not be delegated and shall include a written estimate 
     of all costs associated with the conference, including the 
     cost of all food and beverages, audio/visual equipment, 
     honoraria for speakers, and any entertainment.
       (C) Report.--The Deputy Attorney General shall submit an 
     annual report to the Committee on the Judiciary of the Senate 
     and the Committee on the Judiciary of the House of 
     Representatives on all conference expenditures approved and 
     denied.
       (10) Prohibition on lobbying activity.--
       (A) In general.--Amounts appropriated under this Act may 
     not be utilized by any grant recipient to--
       (i) lobby any representative of the Department of Justice 
     regarding the award of grant funding; or
       (ii) lobby any representative of the Federal Government or 
     a State, local, or tribal government regarding the award of 
     grant funding.
       (B) Penalty.--If the Attorney General determines that any 
     recipient of a grant under this Act has violated subparagraph 
     (A), the Attorney General shall--
       (i) require the grant recipient to repay the grant in full; 
     and
       (ii) prohibit the grant recipient from receiving another 
     grant under this Act for not less than 5 years.
       (11) Annual certification.--Beginning in the first fiscal 
     year beginning after the date of the enactment of this Act, 
     the Assistant Attorney General for the Office of Justice 
     Programs, the Director of the Office on Violence Against 
     Women, and the Director of the Office of Community Oriented 
     Policing Services shall submit, to Committee on the Judiciary 
     of the Senate , the Committee on Appropriations of the 
     Senate, the Committee on the Judiciary of the House of 
     Representatives, and the Committee on Appropriations of the 
     House of Representatives, an annual certification that--
       (A) all audits issued by the Office of the Inspector 
     General under paragraph (1) have been completed and reviewed 
     by the Assistant Attorney General for the Office of Justice 
     Programs;
       (B) all mandatory exclusions required under paragraph (2) 
     have been issued;
       (C) all reimbursements required under paragraph (4) have 
     been made; and
       (D) includes a list of any grant recipients excluded under 
     paragraph (2) from the previous year.
       (b) Use of Funds.--The Office of the Inspector General 
     shall conduct the audits described in subsection (a) using 
     the funds appropriated to the Office of the Inspector General 
     under this Act.

  Mr. BLUNT. I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Amendment No. 753

  Mr. DURBIN. Madam President, I wish to stand and second the remarks 
made by the Senator from Maryland, Ms. Mikulski, related to the Ayotte 
amendment. I think it is important for us to reflect on recent history.
  It was last week that Umar Farouk Abdulmutallab pled guilty in 
Federal court to trying to explode a bomb in his underwear on a flight 
to Detroit, MI, on Christmas Day, 2009. Mr. Abdulmutallab, who will be 
sentenced in January, is expected to serve a life sentence. I wish to 
commend the fine men and women at the Justice Department and the 
Federal Bureau of Investigation for their extraordinary work on this 
case. America is safer because the Obama administration chose the right 
investigative agency, the Federal Bureau of Investigation, as well as 
our article III court system, to try Mr. Abdulmutallab.
  One would never know this from the speeches on the floor and from the 
amendment which has been offered by the Senator from New Hampshire 
because the suggestion is, it was a big mistake--a mistake for us to 
consider trying a terrorist in our criminal courts. She suggests, and 
others have joined her in this suggestion, that all these cases should 
be tried before military tribunals, military commissions.
  I wish to put on the Record, in support of what Senator Mikulski said 
earlier, the facts in this case. I can recall when Senator McConnell, 
the minority leader, came to the floor and spoke in reference to 
Abdulmutallab:

       He was given a 50 minute interrogation, probably Larry King 
     has interrogated people longer and better than that. After 
     which he was assigned a lawyer who told him to shut up.

  That was from Senator McConnell.
  Unfortunately, as colorful as that depiction of the facts might have 
been, it just wasn't accurate. It turns out that experienced 
counterterrorism agencies from the FBI interrogated Abdulmutallab when 
he arrived in Detroit. According to the Justice Department, during the 
initial interrogation, the FBI ``obtained intelligence that proved 
useful in the fight against al-Qaida.''
  I say to my colleagues, watch this Ayotte amendment carefully, 
because it says that if there is a reference to a terrorist associated 
with al-Qaida, we can't turn him over to the FBI or to the court 
system. He has to go to military tribunals.
  After this initial interrogation, Abdulmutallab refused to cooperate 
further with the FBI. Only then, after he stopped talking, did the FBI 
give him his Miranda warnings, which are required, of course, under 
criminal law in the United States. What the FBI did in this case was 
absolutely nothing new. During the Bush administration, the previous 
Republican President's administration, the FBI also gave Miranda 
warnings to terrorists when they were detained in the United States. 
Here is what Attorney General Holder said:

       Across many Administrations, both before and after 9/11, 
     the consistent, well-known, lawful, and publicly-stated 
     policy of the FBI has been to provide Miranda warnings prior 
     to any custodial interrogation conducted inside the United 
     States.

  In fact, the Bush administration adopted new policies for the FBI 
that say: ``Within the United States, Miranda warnings are required to 
be given prior to custodial interviews.''
  Let's take one example from the Bush administration: Richard Reid, 
the so-called shoe bomber. Reid tried to detonate an explosive in his 
shoe on a flight from Paris to Miami in December of 2001, very similar 
to what Abdulmutallab tried on that flight to Detroit. So how does the 
Bush administration's handling of the shoe bomber compare with the 
Obama administration's handling of the underwear bomber? The Bush 
administration detained and charged Richard Reid as a criminal. They 
gave Reid a Miranda warning within 5 minutes of being removed from the 
airplane and they reminded him of his Miranda rights four times within 
the first 48 hours he was detained.
  If we listen to the Republican Senators who come to the floor, they 
would suggest to us that giving Miranda warnings is the end of the 
interrogation. Once a potential criminal defendant is advised that they 
have the right to remain silent, the Republican

[[Page S6738]]

Senators who support this amendment would argue: That is it. We just 
gave it away. They are going to lawyer up and shut up, and we won't 
learn anything.
  Listen to what happened in the Abdulmutallab case: He was stopped. He 
was interrogated by the FBI. He spoke to them for awhile. He stopped 
talking. He was given his Miranda warnings. Let me tell my colleagues 
what happened next. He began talking again to FBI interrogators and 
provided valuable intelligence. There was no torture, coercion or 
waterboarding involved.
  FBI Director Robert Mueller described it this way:

       Over a period of time, we have been successful in obtaining 
     intelligence, not just on day one, but on day two, day three, 
     day four, day five, down the road.

  Let me remind my colleagues: Mr. Abdulmutallab is associated with al-
Qaida, the very type of terrorist that would be precluded from an FBI 
investigation and an article III court prosecution by the Ayotte 
amendment.
  How did this happen? Do you know how it happened? Instead of using 
coercive techniques, the Obama administration convinced Abdulmutallab's 
family to come to the United States, and his family sat down with him 
and told him: Why don't you cooperate with the FBI? And he did. That is 
a very different approach from what we saw in a previous administration 
when coercive techniques were used.
  But real life is not like the TV Show ``24,'' when old Jack Bauer 
tortures somebody and they cannot wait to spill the beans. Here is what 
we learned during the Bush administration: In real life, when people 
are tortured, they will say anything to make the pain stop. They will 
lie and fabricate and go on and babble as long as necessary to stop the 
pain of the torture. They often provide false information instead of 
valuable intelligence.
  Richard Clarke was the senior counterterrorism advisor to President 
Clinton and President George W. Bush. Here is what he said about the 
Obama administration's approach:

       The FBI is good at getting people to talk . . . they have 
     been much more successful than the previous attempts of 
     torturing people and trying to convince them to give 
     information that way.

  So what is the record here? The record is worth recounting. I will 
tell you, I am not sure of the exact number, but I have been told that 
anywhere from 200 to 300 accused terrorists have been successfully 
prosecuted in the article III criminal courts of America. The Ayotte 
amendment would stop the President of the United States from using that 
option--an option that has been used repeatedly over the last 10 years 
to stop terrorists in their tracks, prosecute them, incarcerate them, 
and make them pay a heavy punishment for what they tried to do to the 
United States.
  This Ayotte amendment would tie the hands of this President and 
future Presidents where they could no longer make a decision about 
whether a case should be tried in the article III criminal courts or in 
a military commission or tribunal.
  Look at the facts. Since 9/11, more than 200 terrorists have been 
successfully prosecuted, among them, Ramzi Yousef, the mastermind of 
the 1993 World Trade Center bombing; Omar Abdel Rahman, the so-called 
Blind Sheikh; the twentieth 9/11 hijacker Zacarias Moussaoui; Richard 
Reid, the ``Shoebomber;'' Ted Kaczynski, the Unabomber; Terry Nichols, 
the Oklahoma City coconspirator; and now Abdulmutallab.
  The Ayotte amendment would stop the President of the United States 
and the Attorney General and the Secretary of Defense from picking the 
right place to investigate, to gather information, and to prosecute an 
individual who is suspected of terrorism in the United States.
  During that same period of time, how many individuals have been 
successfully tried by the military commissions, which Senator Ayotte 
believes should be the exclusive place to try a would-be terrorist? 
Three. So the record is, if you are keeping score, over 200 in the 
criminal courts; 3 in military commissions. Senator Ayotte says: 
Convincing evidence for me. It is pretty clear to me, everybody should 
go to a military commission. Really? And of the three who were 
prosecuted in military commissions, two of them spent less than a year 
in prison and are now living freely in their home countries of 
Australia and Yemen.
  Let's go to GEN Colin Powell, a known member of a former Republican 
administration and former Secretary of State and former head of the 
Joint Chiefs of Staff. You would think this man, with his special life 
experience and responsibilities to fight terrorism, would be a good 
place to turn. What does GEN Colin Powell think about the notion behind 
the Ayotte amendment, that we should not try people in criminal courts, 
only in military commissions? Well, GEN Colin Powell is quite a 
military man. Here is what he said:

       The suggestion that somehow a military commission is the 
     way to go isn't borne out by the history of the military 
     commissions.

  It is a very honest statement. It should be honest enough and direct 
enough to guide Members of the Senate to defeat the Ayotte amendment. 
Whether it is a Democratic President or a Republican President, they 
should have every tool at their disposal to keep America safe. They 
should pick the forum they believe they can most effectively use to 
gather information and prosecute terrorists. Time and time and time 
again, under Republican President Bush and Democratic President Obama, 
they have turned to our court system, and they have successfully 
prosecuted terrorists.
  One point made by Senator Mikulski that I think is worth repeating: 
What we are saying to the world is, come to America's court system, the 
same court system where we prosecute people accused of crimes and 
misconduct in America, and the would-be terrorists are going to be held 
to the same standards of trial. It will not be a military commission. 
It will be a court setting which can be followed by the public, not 
only in the United States but across the world. It says to them that 
our system of justice is fair and open, and whether a person is a 
citizen of this country or a suspected terrorist, they can be subjected 
to the same standards of justice.
  I urge my colleagues, do not tie the hands of this President or any 
President in protecting America against terrorists. Leave to those 
Presidents the tools they need to effectively protect the United States 
of America.
  Defeat the Ayotte amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from New Jersey.


                 Amendment No. 857 To Amendment No. 738

  Mr. MENENDEZ. Mr. President, I believe we have cleared with the two 
distinguished Senators who are managing the bill this unanimous consent 
request, which is to set aside the pending amendment to call up my 
amendment No. 857.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Menendez], for himself, 
     Mr. Isakson, and Mrs. Feinstein, proposes an amendment 
     numbered 857 to amendment No. 738.

  Mr. MENENDEZ. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

    (Purpose: To extend loan limits for programs of the government-
  sponsored enterprises, the Federal Housing Administration, and the 
        Veterans Affairs Administration, and for other purposes)

       At the appropriate place, insert the following:

     SEC. _. HOUSING LOAN LIMIT EXTENSIONS.

       (a) Federal Housing Administration.--Notwithstanding any 
     other provision of law, for mortgages for which a Federal 
     Housing Administration case number has been assigned during 
     the period beginning on the date of enactment of this Act and 
     ending on December 31, 2013, the dollar amount limitation on 
     the principal obligation for purposes of section 203 of the 
     National Housing Act (12 U.S.C. 1709) shall be considered to 
     be, except for purposes of section 255(g) of such Act (12 
     U.S.C. 1715z-20(g)), the greater of--
       (1) the dollar amount limitation on the principal 
     obligation of a mortgage determined under section 203(b)(2) 
     of the National Housing Act (12 U.S.C. 1709(b)(2)); or
       (2) the dollar amount limitation that was prescribed for 
     such size residence for such area for 2008 pursuant to 
     section 202 of the Economic Stimulus Act of 2008 (Public Law 
     110-185; 122 Stat. 620).
       (b) Fannie Mae and Freddie Mac Loan Limit Extension.--
       (1) In general.--Notwithstanding any other provision of 
     law, for mortgage loans

[[Page S6739]]

     originated during the period beginning on the date of 
     enactment of this Act and ending on December 31, 2013, the 
     limitation on the maximum original principal obligation of a 
     mortgage that may be purchased by the Federal National 
     Mortgage Association or the Federal Home Loan Mortgage 
     Corporation shall be the greater of--
       (A) the limitation in effect at the time of the purchase of 
     the mortgage loan, as determined pursuant to section 
     302(b)(2) of the Federal National Mortgage Association 
     Charter Act (12 U.S.C. 1717(b)(2)) or section 305(a)(2) of 
     the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 
     1454(a)(2)), respectively; or
       (B) the limitation that was prescribed for loans originated 
     during the period beginning on July 1, 2007 and ending on 
     December 31, 2008, pursuant to section 201 of the Economic 
     Stimulus Act of 2008 (Public Law 110-185, 122 Stat. 619).
       (2) Premium loan fee.--
       (A) In general.--Notwithstanding any other provision of 
     law, the Federal Housing Finance Agency shall, by rule or 
     order, impose a premium loan fee to be charged by the Federal 
     National Mortgage Association and the Federal Home Loan 
     Mortgage Corporation with respect to mortgage loans made 
     eligible for purchase by the Federal National Mortgage 
     Association and the Federal Home Loan Mortgage Corporation by 
     a higher limitation provided under paragraph (1)(B), annually 
     during the life of the loan, of 15 basis points of the unpaid 
     principal balance of the mortgage, to achieve an estimated 
     $300,000,000 from the revenue raised from such fees.
       (B) Premium loan fee structure.--The premium loan fee is 
     independent of any guarantee fees, upfront or ongoing, 
     charged to the borrower, and the premium loan fee shall not 
     be affected by changes in guarantee fees.
       (3) Use of fees.--
       (A) In general.--The fees imposed under paragraph (2) by 
     the Federal Housing Finance Agency shall be deposited in the 
     fund established under subparagraph (C), and shall be used to 
     pay for costs associated with maintaining loan limits 
     established under this section.
       (B) Subject to appropriations.--Amounts in the fund 
     established under subparagraph (C) shall be available only to 
     the extent provided in a subsequent appropriations Act.
       (C) Fund.--There is established in the United States 
     Treasury a fund, for the deposit of fees imposed under 
     paragraph (2), to be used to pay for costs associated with 
     maintaining loan limits established under this section.
       (4) FHFA report on fees.--The Federal Housing Finance 
     Agency shall include in each annual report required by 
     section 1601 of the Housing and Economic Recovery Act of 2008 
     related to the period described in paragraph (2)(B) a section 
     that provides the basis for and an analysis of the premium 
     loan fee charged in each year covered by the report.
       (c) Department of Veterans Affairs Loan Limit Extension.--
     Section 501 of the Veterans' Benefits Improvement Act of 2008 
     (Public Law 110-389; 122 Stat. 4175; 38 U.S.C. 3703 note) is 
     amended, in the matter before paragraph (1), by striking 
     ``December 31, 2011'' and inserting ``December 31, 2013''.

  Mr. MENENDEZ. Mr. President, let me speak to this amendment. I offer 
this amendment along with my distinguished colleague from Georgia, 
Senator Isakson, to temporarily restore the conforming loan limits that 
expired--the loan limits we had under the law that created the 
opportunity to loan at these levels--on September 30 of this year. In 
past years, extending these loan limits has usually occurred on the 
THUD appropriations bills.
  As the chair of the Subcommittee on Housing, I can tell you that 
getting our housing market moving again is one of the most important 
tasks facing our country today because if we do not get that weak 
housing market moving again, we will not get the kind of robust 
economic recovery that the American people deserve. Historically, 
whenever we have been in the midst of an economic challenge or a 
recession, housing has been part of what has led us out of that 
recession.
  Congress could be doing a great deal to get the housing market moving 
again. But perhaps the first rule we should follow is: Do no harm. Do 
no harm. But at this point, Congress, in my view, is doing harm to the 
housing market and to our economic recovery by allowing the higher loan 
limits to expire. With this bipartisan amendment, we could easily 
correct this problem.
  The lower loan limits of the Federal Housing Administration, 
government-sponsored enterprises, and Veterans Administration have 
already resulted in a reduction of consumer credit in 669 counties 
across 42 States in our country. The expiration is making a weak 
housing market even weaker. It also makes it harder for middle-class 
home buyers to get mortgages when credit is already tight. And every 
day that passes is another day in which creditworthy borrowers are not 
getting loans or are having to pay much higher rates that could price 
them out of the market, and those loans are not going to come back.
  I recently chaired a Housing Subcommittee hearing on a different 
topic, where the witnesses were not chosen for their views on a 
particular issue. They represented an entire cross section of all of 
the interested stakeholders in the housing field, including those who 
were submitted to us by our Republican colleagues to consider as 
witnesses. And there were several. Eight of the nine bipartisan 
witnesses who testified in the hearing agreed that the conforming loan 
limits should be temporarily extended to boost the housing market, and 
that now is not the right time to let them expire.
  One of the witnesses, Dr. Mark Zandi, chief economist of Moody's 
Analytics, urged that the limits be extended for ``at least'' another 
year. That is a reversal of Dr. Zandi's position from earlier this 
year, when he had supported the expiration. He said at the hearing that 
the markets remain too fragile and that allowing the limits to expire 
would be ``an error.''
  A recent report by the nonpartisan Congressional Research Service 
found that ``virtually no''--no--``jumbo mortgages are being 
securitized'' today. In other words, in an ideal world, the private 
sector would fill this gap in home mortgages, but the reality is that 
economic conditions right now are not allowing for that. It certainly 
has not taken place.
  And in terms of cost, our amendment will actually save $11 million 
over the next 10 years, and $2 million in fiscal year 2012 according to 
CBO. It is more than fully paid for in a fair way by creating a 
``premium loan fee'' of 15 basis points per year that would apply 
only--only--to the affected loans. This makes sense because the people 
benefiting from the loans would be directly responsible for paying the 
costs of those loans so taxpayers are made whole and no other home 
buyers would pay. And, as I say, it saves $11 million over the next 10 
years.
  Additionally, the amendment will likely help increase returns to 
taxpayers because FHA audits for the past decade have stated that the 
larger loans actually perform better and default at significantly lower 
rates than smaller loans, so allowing the larger loans could actually 
improve returns to taxpayers.
  Finally, I thank the cosponsors of a very similar bipartisan bill--
similar to the very essence of what we are trying to do in this 
amendment--that Senator Isakson and I have introduced, the 
Homeownership Affordability Act: Senators Akaka, Begich, Blumenthal, 
Boxer, Scott Brown, Cardin, Chambliss, Coons, Feinstein, Inouye, 
Lautenberg, Lieberman, Merkley, Mikulski, Bill Nelson, and Schumer. I 
wish to thank the National Association of Realtors, the National 
Association of Homebuilders, the Mortgage Bankers Association, and all 
the other groups that have advocated support for this effort. This is 
an important tool that we can use to boost our housing market and 
economic recovery at no cost to the taxpayers.
  I see my distinguished colleague Senator Isakson on the floor, and I 
certainly would invite him, as a cosponsor of this amendment--someone 
who has a long history in the private sector, before he came to the 
Congress, on the whole question of real estate--I would be happy to 
yield to him at this time.
  Mr. ISAKSON. I thank the distinguished Senator from New Jersey, Mr. 
Menendez, for his leadership on this issue.
  I ask to be recognized.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. ISAKSON. Thank you, Mr. President.
  Let me try to dispel what concern there may be and the concern I 
heard right before we adjourned in August as to why not to extend the 
loan limits. People were afraid--and I understand the fear--that it 
might cause some additional liability in cost to the government and the 
taxpayers.
  Let me make something crystal clear: We are going through a terrible 
foreclosure problem right now in this country, not because of loan 
limits but because of underwriting. Underwriting today, because of the 
ramifications of

[[Page S6740]]

the real estate collapse, is the most pristine underwriting I have ever 
seen.
  I was in the business for 33 years--since 1966. I have seen a lot of 
housing recessions go by. I have seen a lot of difficulties. This one 
is the worst I have ever seen, but it was not caused by the amount of 
loans made. It was caused by underwriting.
  As Senator Menendez has said, this will pay the government back 
because of the fee associated with the loan, in the first place. In the 
second place, it will answer the big objective we need to start 
applying in this country, and that is doing no more harm. A lot of the 
problems that have been manifested in the real estate industry have 
been manifested by our doing the harm, either in what we imposed on 
Freddie and Fannie or what we did not allow to have happen.
  The restrictions now on mortgage underwriting under Dodd-Frank and 
the requirements that are now true in all of our underwriting agencies 
are so strict that the underwriting of loans is so pristine that only 
the best of the best is being made. The unintended consequence of not 
extending these increases in August caused a number of real estate 
transactions that were made to never close. Because the limit went 
down, therefore, the loan went down.
  No one in this body should confuse the amount of a loan with its 
ability to be repaid. They need to understand, it is the underwriting 
of the loan that ensures the repayment.
  This, as the Senator said, will add an income to the U.S. Government. 
It will not add additional pressure on the U.S. taxpayers. It will at 
least give us breathing room in a housing industry that is still 
struggling terribly.
  So I would ask any of our Members who were objecting back in August 
to these loan limits being restored, please come see me. I do not know 
a lot about many things. I know a whole lot about this because I made 
my living in this all of my life. I have no interest anymore, so there 
is no self-interest, except to know we are in deep trouble in our 
economy.
  You are never going to get 9 percent unemployment down until you 
bring construction back. You are never going to get the American 
consumer to have more confidence until they feel as though the value of 
their homes is secured. Those things are not going to happen if a 
reluctant Congress continues to pass suppressing legislation or keep 
these loan limits down rather than doing things that will do no harm 
and help the housing market.
  So I lend my full support to Senator Menendez and what he has done. I 
ask for favorable consideration by our colleagues in the Senate.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I would like to compliment the Senator 
from New Jersey for this amendment. I think it is common sense. I think 
it accomplishes so many objectives. No. 1, it helps people with real 
problems be able to get back on their feet, maintain home ownership, 
and get our economy going and put people to work.
  I know the Senator from New Jersey and others here support an 
infrastructure bank. Yes, we want to build roads and bridges. I would 
like to take broadband to every part of America. But we also need to 
look at home building, and Maryland's has come to a screeching halt, 
even in a robust State such as Maryland. Everybody I talk to in the 
Maryland business community says: Unless you crack the housing 
situation, you cannot crack the economic situation.
  By having access to the American dream, which has now become an 
American nightmare, this American dream created jobs, whether it was 
people who built them, the real estate developers who developed them, 
or the people like Senator Isakson who made a career of selling them. 
This was about building a home, and in many instances it was about 
building community.
  I think that where we are, if we agree to the Menendez amendment, 
that will go a long way in being able to help people. We have to really 
deal with this. Quite frankly, I have been disappointed. Just about 
every darn thing we have done to ``help with the housing mortgage 
situation'' has been a bust. It has been an absolute bust. We spent 
millions and so on. We had this program. We had catchy little titles. 
But nothing catches on to solve the mortgage crisis.
  I believe the Menendez amendment, supported by someone who really 
understands business and housing and community--I think this amendment 
is a winner. I am happy to put my name on it. I will look forward to 
voting for it when the time comes.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. MENENDEZ. Mr. President, just very briefly, I thank my colleague 
from Maryland and the bill manager. I hope we will get to a point where 
we can cast a vote on this. I appreciate Senator Isakson joining me and 
others in this effort, and particularly his expertise. If we listen to 
voices of reason as well as experience here, then Senator Isakson's 
arguments should be a winner. I look forward to hopefully having a 
vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.


                           Motion to Recommit

  Mr. LEE. Mr. President, I have a motion to recommit with instructions 
with respect to H.R. 2112.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Utah [Mr. Lee] moves to recommit the bill 
     H.R. 2112 to the Committee on Appropriations with 
     instructions to report the same back to the Senate with 
     reductions in spending in each division required to bring the 
     overall spending for the division to fiscal year 2011 levels 
     which shall not exceed $130,559,669,000 for division A (Ag), 
     $58,786,478,000 for division B (CJS), and $55,368,096,000 for 
     division C (THUD).

  Mr. LEE. Mr. President, I stand to speak on behalf of this motion to 
recommit. What we are looking at here with H.R. 2112 is a measure that 
actually spends more in each of those areas than what we spent in 
fiscal year 2011. We are in dire economic circumstances in this 
country. We are currently spending at a rate of roughly $1.5 trillion 
annually in excess of what we are bringing in.
  We have gone to great lengths through a number of accounting 
mechanisms to demonstrate to the American people that we are doing our 
best to spend less. In many circumstances, the message that has been 
sent has been a message of austerity. It becomes increasingly difficult 
to manage and to maintain that necessary message of austerity, one that 
is accompanied by hundreds of millions of Americans making sacrifices 
every day in response to this economic downturn.
  It becomes absolutely essential that we actually make cuts. To make 
actual cuts, I think that means necessarily that we have to spend less 
in fiscal year 2012 than we spent in fiscal year 2011. We will 
continue, I fear, to lack credibility if we persist in using whatever 
techniques we use, accounting-wise or otherwise, to claim we are 
reducing spending when, in fact, this appropriations package--this 
minibus spending package, as we sometimes refer to it--actually spends 
more money than was spent in 2011.
  This is why I have submitted this motion. I hope my colleagues will 
share this concern I have expressed, which has caused me to submit this 
motion. The idea of the motion is that we bring our spending levels 
back down in each of these areas to what we spent in fiscal year 2011.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the motion to 
recommit is set aside.
  The Senator from Maryland is recognized.
  Ms. MIKULSKI. We have set aside the motion to recommit offered by the 
Senator from Utah; however, I wish to rise in opposition to his motion. 
This is all about budget-speak. It is really hard to follow between 
budget authority and expenditures, et cetera. But let me just say this 
in plain English.
  This bill is $500 million less than we spent in 2011--$500 million 
less than we spent in 2011. Now, this is not the chairperson of the CJS 
bill kind of making up numbers. This is confirmed by the Congressional 
Budget Office. It has been certified by the chairman of the Budget 
Committee. The CJS bill is nearly $500 million less than last year.
  Now, am I doing fuzzy math? No. I do not do fuzzy math. The CJS bill 
is consistent with something called the

[[Page S6741]]

Budget Control Act. The Budget Control Act requires appropriations to 
cut $7 billion for our fiscal year 2012. When we got our allocation, 
the CJS subcommittee allocation was $500 million below 2011. I am going 
to say it again--$500 million below what we spent in 2011.
  This allocation required the CJS subcommittee to take stern and even 
drastic measures. I eliminated 30 programs. Yes, Senator Barbara 
Mikulski, a Democratic, a liberal, I cut and eliminated 30 programs: 4 
in Commerce--I think you objected to 1; 20 in Justice; 1 in Space; 4 in 
the National Science Foundation. I could not believe it, but that is 
what we had to do.
  We cut the Deep Underground Science and Engineering Lab by $1 
billion. That was a $1 billion project the National Science Foundation 
wanted. We said we would like it too but not in these austere times. 
There were other programs that we were able to do. And we were not 
happy about it. We absolutely were not happy about it. We cut the 
Baldridge Program. We cut the public telecommunications facility 
planning and communications. I mean, we did what we had to do.
  So while the Senator looks at I am not sure what, I can tell you we 
are $500 million below 2011. The Congressional Budget Office says it. 
The numbers were reviewed by the Budget Committee itself. The chairman 
signed off that we were $500 million below, to help the overall 
Appropriations Committee reduce its expenditures by $7 billion.
  So that is for 2011. Now let's look at 2012. I mean, the President 
came to Congress and gave a dynamic State of the Union speech. It 
touched America deeply when he said: I want to outbuild, outeducate, 
outinnovate anyone in the world. And he proposed his budget.
  When you look at what we are doing here, my appropriations, my 
Commerce-Justice appropriations, is $5 billion--that is ``b'' as in 
``Barb''--not $5 million, like ``m'' in ``Mikulski.'' We are $5 billion 
below what the President said he needed in Commerce-Justice-Science, 
technology, the innovation subcommittee, to help outeducate and out-
innovate anybody else in the world. So I am $5 billion less than what 
the President of the United States said he needed to have to accomplish 
national goals.
  Now, we talk a lot about that we want America to be exceptional. 
Well, you have to spend money to be exceptional, and when you put your 
money in science, technology, and education, we can come up with new 
ideas, new products that we can make and sell around the world, and our 
children know they have a future in this new global economy.
  I do not want to be nickel-and-dimed here. I have already been 
nickel-and-dimed to be able to comply with this bill. You know, I am 
back to where Obama was in January, that cold day, and now here we are. 
So when we talk about cutting, we have cut. We have absolutely cut. We 
cut discretionary spending at an incredible level. And do you think it 
is has helped create one job? Do you think the market is going 
``hoorah, hoorah, look at what they are doing''? No. Do you know why? 
Because the private sector knows that if we are going to be a 21st-
century nation, if we are going to be America the exceptional, we must 
educate.
  We also must invest in scientific research so that the private sector 
can take that basic research we do, value add to it, and with the 
genius that is America, the ability--that intellectual property you can 
own and be protected, that you are going to develop a product, and you 
have the National Institute of Standards to come and help you develop 
the standards so that you will be able to sell it in America in every 
State and sell it around the world in every nation.
  So come on. If we want to be America the exceptional, stop nickel-
and-diming. One of the ways you deal with debt is a growing economy, 
restoring consumer confidence, restoring citizen confidence, No. 1, 
that we can govern ourselves and that we can govern ourselves in a 
smart fashion. Yes, we do need to be frugal, but we sure do not need to 
be stupid.
  I am going to oppose this amendment, and I sure hope the people pass 
my bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.


                           Amendment No. 815

  Mr. PRYOR. I see that I have other colleagues on the floor. I will 
only be a couple of minutes.
  Today I rise to oppose an amendment offered by Senator Moran, 
amendment No. 815. I really do appreciate the intent of Senator Moran's 
amendment. I actually support the intent of what he is trying to do 
because he is trying to support the Watershed Rehabilitation Program.
  While I am not opposed to that program, and I recognize that 
difficult decisions had to be made in order to meet our statutory 
spending caps outlined in the Budget Control Act, I regret to say I 
cannot support the Senator's amendment as it is written because its 
offset comes from departmental administration which provides numerous 
essential services to the USDA.
  These cuts would force USDA to reduce their number of employees, 
which would have a detrimental effect on the Department and its 
operation. In fact, Secretary Vilsack reached out to the Agriculture 
Appropriations subcommittee staff to relay his serious concerns.
  These USDA employees provide essential services to some of the most 
rural areas in the country, so I cannot support the amendment that 
would, in effect, reduce services to rural America.
  On top of that, it is important for my colleagues to understand that 
the level for departmental administration is already over $13 million 
below the fiscal year 2010 level and $7 million below the President's 
request.
  Although I definitely support the watershed rehabilitation program, I 
certainly hope Senator Kohl and Senator Moran can find a good offset 
that is agreeable to the majority of us. Still, I must oppose this 
amendment and urge other Senators to oppose it as well.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I see my colleague from Colorado. I was going to call 
up an amendment and make some remarks. Is there a procedural matter or 
something the Senator would be interested in doing before that? If not, 
I will go forward. I thought maybe the Senator wanted to comment on 
Senator Pryor's comments.
  Mr. UDALL of Colorado. I have another set of comments I want to make 
on a pending amendment. I don't know where we are in the order here.
  Ms. MIKULSKI. Does the Senator wish to offer an amendment?
  Mr. UDALL of Colorado. I will rise in opposition to an amendment 
already offered.
  Mr. SESSIONS. Then I guess I have the floor, Mr. President.
  Ms. MIKULSKI. I am seeking clarification.
  Mr. SESSIONS. I yield to the Senator for that purpose.
  Ms. MIKULSKI. Does the Senator wish to comment on the Moran 
amendment?
  Mr. UDALL of Colorado. Amendment No. 753 offered by the junior 
Senator from New Hampshire.
  Ms. MIKULSKI. We are alternating back and forth, so we will go to 
Senator Sessions and then Senator Udall.
  Mr. UDALL of Colorado. Thank you. I look forward to hearing from the 
Senator from Alabama.
  Ms. MIKULSKI. Then we will go to the Senator from Colorado for his 
comments.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senator 
from Colorado be recognized after I complete my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 810 to Amendment No. 738

  Mr. SESSIONS. Mr. President, pursuant to the unanimous consent 
agreement, I call up Sessions amendment No. 810.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Alabama [Mr. Sessions] proposes an 
     amendment numbered 810 to amendment No. 738.

  Mr. SESSIONS. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S6742]]

  The amendment is as follows:

(Purpose: To prohibit the use of funds to allow categorical eligibility 
           for the supplemental nutrition assistance program)

       At the end of title VII of division A, add the following:
       Sec. _.  None of the funds appropriated or otherwise made 
     available by this Act shall be used to pay the salaries and 
     expenses of personnel to carry out the supplemental nutrition 
     assistance program established under the Food and Nutrition 
     Act of 2008 (7 U.S.C. 2011 et seq.) in any manner that 
     permits a household or individual to qualify for benefits 
     under that program without qualifying under the specific 
     eligibility standards (including income and assets 
     requirements) of the program, regardless of the participation 
     of the household or individual in any other Federal or State 
     program.

  Mr. SESSIONS. Mr. President, the purpose of amendment No. 810 is to 
eliminate the categorical eligibility for the Supplemental Nutrition 
Assistance Program, called SNAP, or the Food Stamp Program. A 
categorical eligibility standard has been imposed, and it has been 
causing a substantial increase in unjustified expenditures in the Food 
Stamp Program.
  Let me share briefly the history over the last decade of the Food 
Stamp Program. Of course, we in America strongly believe that persons 
ought not to go to bed hungry, if we have the food and the ability to 
take care of them. We have had a very generous Food Stamp Program for a 
number of years. But in the last decade, it has shown incredible, 
amazing increases in spending. As a matter of fact, I think it has 
increased faster than probably any other significant item in the entire 
Federal budget. It is probably increasing more even than the interest 
on the debt, which is one of the most surging expenditures this Nation 
has.
  In 2001, we expended $20 billion on the Food Stamp Program. This 
year, we are projected, under this bill, to spend $80 billion. In 10 
years, spending on food stamps would have quadrupled. This year's 
proposal calls for an increase of 14 percent over last year. This is a 
stunning amount of money.
  This country is headed to financial crisis. Erskine Bowles and Alan 
Simpson, who headed President Obama's debt task force, told us in the 
Budget Committee that the country has never faced a more serious 
financial crisis than the debt crisis we are now in. One of the reasons 
is that we have had these incredible surges of expenditures in programs 
over a period of years. We have not watched them or contained them and, 
indeed, we have done things to make them less accountable and efficient 
and more subject to fraud, abuse, and waste.
  Again, this year proposes another 14-percent increase in the Food 
Stamp Program. That is $80 billion. The House proposed only a $1 
billion increase; theirs comes in at roughly $71 billion for food 
stamps. So theirs is more level. But it still has an increase. 
Certainly, it is far less than this.
  To give some perspective on what we are talking about when we say $80 
billion, let me share a few facts. The Federal prison system costs $7 
billion. The Department of Justice--the entire Department of Justice, 
which Senator Whitehouse and I served in--and were proud to do so--gets 
$31 billion. Federal highway funding for the entire year is $40 
billion. Food stamps is twice that of the Federal highway bill. Customs 
and Border Patrol get $12 billion. The Federal Education Department is 
$30 billion. $80 billion dwarfs the budgets of, I think, most any State 
in the country, except for maybe New York or California. Alabama's 
general fund budget and education budget is less than $10 billion. This 
is $80 billion and is increased $9 billion this year under this bill.
  We have to get real. We don't have the money. We are borrowing 40 
cents of every dollar we spend. No wonder Congress is in such 
disrepute. How can we defend ourselves against the charge of 
irresponsibility to good and decent American citizens when we are 
spending at this rate and continuing to show increased spending at this 
rate? I am still amazed at the budget the President submitted to us 
earlier this year, calling for a 10-percent increase in the Education 
Department, 10 percent for the Energy Department, and 10 percent for 
the State Department, at a time we are borrowing money at a rate we 
never borrowed before, when we have never, ever systemically faced such 
a substantial threat to our country's financial welfare--as every 
expert has so told.
  I know we want to help poor people. I don't want to see people 
hungry. But do we need to be spending four times as much on food stamps 
as we were in 2001? Can we not look at this program and think we can 
make it better and more efficient? We need to get focused on what we 
are doing here and try to bring this matter under control. We can do 
better.
  Federal regulations allow States to make households ``categorically 
eligible'' under the Food Stamp Program. By the way, States administer 
the program. They don't get money to enforce it and supervise it. They 
pay that out of their own budgets. But the food stamps benefit is a 
100-percent Federally funded program. So there is a little bit of a 
conflict of interest. States are benefitting when more food stamps come 
into their State, right? They are receiving more Federal dollars. They 
are not paying any money into it. Why spend their money to catch fraud, 
waste, and abuse and crack down on problems? Why not utilize every 
possible action that would bring more food stamps to the State? That is 
what is happening.
  I know a little bit about that because, unless the Presiding Officer 
is one, I am probably the only person in this body who actually 
prosecuted food stamp fraud. They were using it as currency in drug 
dealing. A lot of fraud is going on, and we need to do better about it. 
The States aren't stepping up because they don't have an incentive to 
do so.
  Again, Federal regulations now allow States to make households 
``categorically eligible'' for SNAP--the Food Stamp Program--simply 
because the household also receives certain other benefits or 
assistance from Federal programs. ``Categorical eligibility'' is a 
fancy way of saying ``automatically qualified.'' For example, if you 
qualify for one, you qualify for the other. Households that receive 
Temporary Assistance for Needy Families, TANF, or Supplemental Social 
Security income benefits or assistance are automatically eligible for 
SNAP benefits in some states.
  These other programs, however, have looser eligibility standards than 
the Food Stamp Program. To be eligible for SNAP benefits, a household 
must meet specific income and asset tests. Households with income above 
a certain threshold, or savings above a certain amount, cannot qualify 
for food stamps. If you have a substantial savings, even if you don't 
have any income, you are not entitled for somebody else to pay for your 
food. I don't know what the number is, but if you have a savings 
amount, and if you are above that, you don't get food stamps. Is that 
irrational?
  But in 42 States there is no limit on the amount of assets certain 
households may have to qualify for TANF. As a result, households with 
substantial assets but low income would be deemed eligible for SNAP 
benefits even if they have substantial assets.
  Astonishingly, households can be categorically eligible for SNAP even 
if they receive no TANF-funded service other than a toll-free telephone 
number or informational brochure. I kid you not. Receiving the 
information about TANF or other applicable information can qualify a 
household to be categorically eligible for SNAP benefits.
  A 2010 GAO report revealed that one State included information about 
a pregnancy prevention hotline on the SNAP application, and that was 
used as a basis to grant categorical eligibility. Other States reported 
providing household brochures with information about marriage classes 
in order to confer categorical eligibility for food stamps.
  According to officials with the Food and Nutrition Service, increased 
use of ``categorical eligibility'' by States has increased approval of 
SNAP benefits to households that would not otherwise be eligible for 
the program due to SNAP income or asset limits. The Food and Nutrition 
Service, which supervises this, acknowledged that more people are 
eligible if you use this ``categorical eligibility'' rather than 
requiring them to comply with explicit requirements of the Food Stamp 
Program.
  So my amendment would eliminate categorical eligibility for SNAP 
benefits, meaning that only those who meet the income and asset 
requirements

[[Page S6743]]

under the program would be eligible for benefits. They would have to 
apply just like anyone else.
  Is it too much to ask someone who is going to receive thousands of 
dollars in food benefits from the Federal Government to fill out a form 
and to honestly state whether they are in need, to the degree they 
qualify for the program? Automatic eligibility through other income 
support programs would end under my amendment.
  Last Friday, the Treasury Department closed the books on fiscal year 
2011 and declared the Federal Government ended the year with $1.23 
trillion in additional debt. That makes our gross debt now $15 
trillion. Our appropriations for the SNAP program have gone from $20 
billion in 2001 to $71 billion in 2011 and are projected now to go to 
$80 billion. From 2001 through 2011, there is a huge increase in 
funding for the program.
  The percentage of people using food stamps has increased sevenfold 
since the program's national expansion in the 1970s, with nearly one in 
seven Americans now receiving the benefit. Meanwhile, food stamp funds 
have been mishandled and misused, and there are many examples of this. 
I have seen it in my personal practice as a Federal prosecutor. One 
recent notorious case was a defendant in Operation Fast and Furious. 
One of the people who came in, bought a whole host of illegal weapons 
in Arizona to take back across into Mexico, was a food stamp recipient. 
According to the report, he spent thousands of dollars on these guns, 
maybe tens of thousands of dollars on these expensive weapons. He 
bought 300 high-powered assault rifles. He had money for that. Yet we 
are buying his food for him.
  In another case, a Michigan man was able to continue receiving foods 
stamps after winning $2 million in the lottery--$2 million. He even 
asked about it. He said: Can I continue to receive food stamps? Guess 
what they told him. Yes. The lottery winnings are an asset, and we are 
not checking assets now. It is not income, it is an asset. So he got to 
keep having food stamps while American working people were paying for 
it.
  Categorical eligibility--that flawed practice--allows SNAP recipients 
to avoid the asset test required to determine need. This is a policy we 
cannot afford at a time this country is having a huge debt crisis.
  President Obama has coined a somewhat disingenuous term called the 
Buffet rule in his push to raise taxes on millions of Americans who 
have zero in common with Mr. Buffet. Of course, he is one of the 
President's big allies. I would like to suggest something called the 
Solyndra rule. Under this rule, before any proposals are offered to 
raise any taxes, we first put an end to the wasteful, inappropriate 
spending in Washington.
  Shouldn't we first clean up our act before we demand the American 
people send more money up here? Until we do that, raising tax rates 
will only be funding the continued abuse of the American taxpayer. 
Raising taxes to bail out Congress is akin to giving money to an 
alcoholic on the way to the liquor store. It doesn't help matters if 
the money comes from a wealthy person, if the money is going to be used 
for an unwise or unhealthy result. It is time for the President and 
this Senate to get their spending habits under control. These bills 
before us, I am afraid--and the ones we will be seeing in the future--
don't reduce spending but increase spending, and I thank the Chair for 
the opportunity to express my concerns about it.
  Finally, I would just say we are told: We can't do anything about it. 
We are told we can't fix the food stamps. Food stamps don't count like 
other appropriations. One might say: Why is that? They say it is an 
entitlement. What is an entitlement? An entitlement is when there is a 
law that says if a person's income is a certain level, they go in to 
the government and they have to give them money whether the government 
has any money or not; whether it has been appropriated or not. It is an 
entitlement program.
  This makes it very hard for those of us in Congress to be able to 
make the kind of proposals that are appropriate to fix this program, 
one of which simply would be, in my opinion, to reduce spending back to 
the level of the House, which is showing a modest increase this year, 
after surging the spending level for the SNAP program over the last 
decade. All of us have to grasp something. I don't think the American 
people are happy hearing excuses. I don't think they are happy hearing 
us say: We would like to have done something about food stamps, but 
this is not germane. This somehow, technically, is an entitlement 
program, it is part of a legislative act and, therefore, we can't do 
anything about it on an appropriations bill, which we are here to 
debate. We can't change it. There have been some changes in the food 
stamp program, so we believe this amendment is clearly germane.
  But I wish to say, as we wrestle with how to bring spending in 
America under control--as the person who is now the ranking Republican 
on the Budget Committee--I wish to say we have to quit using excuses. 
Every program has to be rigorously analyzed, and if there is waste, 
fraud, and abuse, we need to crack down on it. We don't have the money. 
We don't have the money. We can't do what we would like to do. We can't 
increase spending on program after program. This one is perhaps one of 
the most dramatic examples in the government, and it can be improved 
upon if we focus on it.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Colorado has the floor.
  Mr. UDALL of Colorado. Mr. President, I welcome this spirited debate 
we have been having in the Senate on these important appropriations 
bills. Before I begin my remarks, I wish to yield to the chair of the 
Agriculture Committee who has some comments to make in response to the 
Senator from Alabama.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, I thank my colleague and, if I might, 
take a moment to respond.
  Ms. MIKULSKI. We have an order that has been established. I can 
understand the Senator from Michigan wanting to rebut. How long does 
the Senator from Michigan wish to talk?
  Ms. STABENOW. Just 2 minutes to respond to the previous Senator.
  Ms. MIKULSKI. OK.
  The PRESIDING OFFICER. Is there objection?
  Ms. MIKULSKI. No objection.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Ms. STABENOW. I appreciate the courtesy very much. I wanted to take a 
brief moment to indicate to my friend from Alabama I couldn't agree 
more that we need to make sure the food assistance programs--every farm 
program and every program in the Federal Government--have rigorous 
review and that we are holding taxpayer dollars accountable. We have 
held accountability hearings in the Senate, in the Agriculture 
Committee. The good news is, there is only a 4-percent error rate in 
the entire SNAP program through the supplemental nutrition program 
being talked about, but there is more we can do.
  The case of the lottery winner in Michigan the Senator talked about 
was outrageous, and it has been fixed. They can't do that anymore. We 
are going to fix it in the next farm bill as well. I could not agree 
more. We are going to go through and fix those things that don't make 
sense.
  But I would also say that what the Senator is suggesting is, first of 
all, policy that needs to be done in the context of the farm bill 
negotiations. We have an extraordinary agreement we have reached 
between myself and our ranking member in the Senate and the chair and 
ranking member of the House Agriculture Committee, and we are putting 
together language to give to the supercommittee that will address 
nutrition as well as other areas. I would ask my colleagues to support 
our effort that we will be putting forward. We will have that language 
by November 1 that will address those egregious areas which, by the 
way, are very small, but we do need to address them and we need to do 
it in a way that also recognizes more people than ever before need food 
help.
  I have people in Michigan who have never needed help in their entire 
life. They have paid taxes all their lives, and they are mortified they 
can't keep food on the table for their children throughout the month. 
So they are getting temporary help, and that is what

[[Page S6744]]

is it is designed for--people who need temporary help. Because of that, 
we want every single dollar to go where it ought to go, and we are 
going to do everything possible to see that happens. We are going to be 
putting forward policies that I am sure the Senate will support that 
will guarantee there is not $1 that is going to somebody who doesn't 
deserve it or to someone who is cheating or where there is fraud or 
abuse. We are going to make sure that happens. But this debate needs to 
be done in the context, as it always has been, of our farm bill policy 
on food and nutrition.

  I ask my colleagues to oppose this amendment and to work with us as 
we put forward policies that will be coming very soon. I thank the 
Senator from Colorado for his graciousness.
  The PRESIDING OFFICER. The Senator from Colorado.


                           Amendment No. 753

  Mr. UDALL of Colorado. Mr. President, I appreciate the patience of 
the Senator from Maryland. This is a spirited debate about an important 
set of amendments being offered, and I wish to rise in opposition to 
amendment No. 753, which has been offered by the Senator from New 
Hampshire, Ms. Ayotte.
  While I enjoy working with Senator Ayotte on the Armed Services 
Committee, and I appreciate her contributions to the committee, I have 
to say I strongly disagree with her amendment. Senator Ayotte's 
amendment would prohibit the United States from trying enemy combatants 
in article III civilian courts. These courts refer to article III of 
our U.S. Constitution.
  Our article III courts, as the Presiding Officer knows, are the envy 
of the world. While there is a role for military tribunals, they are 
certainly not the only solution. Frankly, by prohibiting the use of 
article III courts, we may actually hinder our efforts to bring 
terrorists to justice.
  The Ayotte amendment would put the military smack in the middle of 
our domestic law enforcement efforts in our fight against extremists 
and terrorists. My friend from New Hampshire argues this is a war that 
should be prosecuted by our military. But the reality is, in many 
cases, the best course of action is for our domestic law enforcement, 
the FBI, and others, to take the lead. This amendment would prevent the 
Department of Justice from questioning or prosecuting terrorists caught 
on U.S. soil engaged in the criminal act of terrorism, and it would 
prevent Federal prosecutors from bringing these terrorists to justice 
in so-called article III courts. Federal prosecutors have tried, 
convicted, and imprisoned hundreds of terrorists in article III courts. 
The Department of Defense has obtained only six convictions in military 
tribunals.
  DOD's job is to track down, kill or capture those who would harm 
America or our citizens. They do an incredible job of that. We all 
stand in awe of the work they do to keep us safe. But it is not the job 
of the Department of Defense to try each and every one of those 
individuals. It is a mission they do not want, and they would have to 
radically change their entire system to accommodate prisoners who are 
already handled by civilian courts.
  Article III courts have kept Americans safe for over 200 years. I 
have to say I don't believe it is prudent to build a new judicial 
system from scratch in order to meet objectives that are already being 
met. For example, Umar Farouk Abdulmutallab, also known as the 
Underwear Bomber, was arrested in Detroit after trying to set off an 
explosive on an airplane. He was read his rights, questioned, 
prosecuted, and he recently pled guilty. Under this amendment, the FBI 
would have had to call in the military to detain Abdulmutallab without 
any resolution in his case. In fact--and I think this is an extremely 
important point--under this amendment, Abdulmutallab would have been 
given complete immunity from criminal Federal prosecution.
  Further, if this amendment passes, our allies may well refuse to 
extradite terror suspects to the United States. If military commissions 
are determined as someday not having jurisdiction over these terrorists 
or invalidated by the Supreme Court--which, by the way, has happened in 
other settings in the Supreme Court--there would be no way ever to 
prosecute these high-value foreign terrorism suspects because of this 
amendment. What would that mean? It would mean no conviction of the 
Blind Sheik, who planned the first World Trade Center attack; no 
conviction of Moussaoui, the 20th hijacker on 9/11, and no conviction 
of the east Africa Embassy bombers, all of whom were convicted in 
article III courts.
  Again, the Ayotte amendment, however well intended, would provide 100 
percent immunity from Federal prosecution to suspected terrorists and 
eviscerate a very effective tool in our counterterrorism portfolio. 
That doesn't strike me as being as tough as we possibly could be on 
terrorists.
  The fact is, the prosecutors at the Department of Justice have 
numerous Federal criminal laws at their disposal with which to charge 
suspected terrorists. The Federal courts have more than 200 years of 
precedent to guide them, while tribunals have almost none. As I have 
said, our Federal prosecutors have had great success so far.
  In summary, I urge my colleagues to vote against amendment 753. It is 
simply not necessary, and I believe it will do more harm than good, 
while subverting the finest justice system in the world in the process.
  As I yield, let me be clear that I wholeheartedly support the 
underlying bill, as it has been very ably authored by Senator Mikulski 
and others, but I have to oppose this amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Mr. President, I rise in response to the comments by my 
esteemed colleague from Colorado about my amendment No. 753. And I 
would say this first. My amendment does not provide immunity to 
terrorists. What my amendment does is treat terrorists as they should 
be treated.
  We are at war, and under the laws of war, traditionally we have tried 
enemy combatants in military commissions. And those individuals my 
colleague from Colorado cited, including Umar Farouk Abdulmutallab, 
could be held accountable in a military commission because our priority 
has to be, when we are at war, to gather intelligence, to protect our 
country, and not whether we should prosecute in our article III courts, 
in which I have great confidence. I served as attorney general of our 
State and believe very much in our article III court system. But our 
article III court system is not where terrorists with whom we are at 
war should be tried.
  In light of the recent comments here on the floor, I feel compelled 
to point out some of the facts that I think are important for the 
American people to know about some of the cases that have been cited in 
support of saying terrorists should be tried in article III courts.
  On October 12, Umar Farouk Abdulmutallab pleaded guilty in the U.S. 
district court in Detroit. That case has been cited not only by the 
Senator from Colorado but by the Senator from Maryland and the Senator 
from Illinois, and our Attorney General has cited it as well as the 
ultimate and final vindication of the use of our civilian courts for 
the trial of enemy combatants. The senior Senator from Illinois and the 
Obama administration were so confident that the so-called Underwear 
Bomber, as he has been named, guilty plea would settle the dispute once 
and for all, that on October 13, the Senator from Illinois came to the 
floor and essentially declared the controversy over. We have heard 
those same arguments today.
  I think we need to review who exactly Abdulmutallab is. He is no 
common criminal. We are not talking about people who have robbed liquor 
stores or who are Americans who have committed criminal acts in this 
country. He is the Nigerian man who tried to detonate plastic 
explosives hidden in his underwear while onboard Northwest Airline's 
flight 253 to Detroit on December 25, 2009. Al-Qaida in the Arabian 
Peninsula claimed to have organized the attack with the Underwear 
Bomber claiming that AQAP supplied him with the bomb and trained him.
  He was subsequently charged in Federal court with eight counts, 
including the attempted use of a weapon of mass destruction and 
attempted murder of 290 Americans. The Underwear Bomber pleaded guilty 
at trial, telling a surprised courtroom on the second day of his trial 
that the failed attack was in retaliation for the killing of Muslims 
worldwide.
  This case has been cited as the final vindication for civilian 
trials, and I

[[Page S6745]]

think it is important to mention three points about this case.
  First of all, the presumption seems to be that the civilian court 
system should have the primary responsibility for questioning, trying, 
and ultimately detaining foreign enemy combatants with whom the United 
States is in a declared war. That has not been the rule in prior 
conflicts. We are treating this conflict differently than we have 
treated other conflicts, where enemy combatants have been tried in 
military commissions.
  Secondly, in my view, the administration's eagerness to appease the 
ACLU by trying enemy combatants in civilian courts misses the whole 
point about detention in a time of war. When we are at war, we detain 
and interrogate enemy combatants according to the laws of war to glean 
valuable intelligence that will help prevent future attacks, save 
American lives, and help us capture other enemy combatants.
  Al-Qaida was at war with the United States long before our country 
recognized or strongly reacted to this threat. We remain at war with 
al-Qaida. When we put enemy combatants in our civilian court system, we 
are focusing on prosecution, and we potentially miss important 
opportunities to gather information to prevent future attacks by doing 
so.
  In Abdulmutallab's case, the administration read him his Miranda 
rights after 50 minutes of questioning. In my view, this jeopardized 
valuable intelligence. And I know my colleagues on the other side of 
the aisle have said: Well, eventually he spoke, and he gave us lots of 
information. But why would we put information in jeopardy? Why would we 
read terrorists Miranda rights? I, as a prosecutor, have never heard a 
law enforcement official tell me that Miranda rights are a helpful 
information-gathering tool, but that seems to be the position I am 
hearing today.
  Jeopardizing this intelligence was clearly unnecessary. And in this 
case, the fact that we didn't have to rely on a confession--this was a 
case where we caught the Underwear Bomber redhanded. So even if we were 
to have tried him in a military commission and had not given him 
Miranda rights, had gathered intelligence for as long as we could have, 
we still would have had him redhanded because the passengers on that 
flight saw him. He was caught with the explosives on his body. This was 
never a case about a guilty plea and whether we got some information 
about him. The essential question is whether we got the most 
information possible from a terrorist who was trying to attack 
Americans and our allies, to prevent future attacks, not whether we 
gave him Miranda rights.
  With a case that was as open and shut as Abdulmutallab's, without any 
need to use confessional evidence or classified information, it doesn't 
prove the civilian court system is superior to military commissions. 
His conviction was never realistically in doubt.
  Defenders of bringing our enemy combatants to the U.S. civilian trial 
often cite a number of cases and convictions related to military 
commissions. Again, I want to reiterate, I am a strong believer in our 
civilian court system, but I want to point out some of the downsides to 
using our civilian court system for enemy combatants: the costs of 
security; the cause of civic disruption in the area; the risk of 
compromising classified information; and the risk of eventual release 
of these combatants not to some other country but into American 
society, regardless of whether they are convicted in civilian court. 
And these concerns aren't academic.
  I have heard some of my colleagues cite the case of Zacarias 
Moussaoui, who was a member of al-Qaida who was involved in the 9/11 
attacks. The civilian proceedings spanned nearly a decade, and his case 
was finally resolved only last year. These proceedings cost millions of 
dollars and caused substantial civic disruption. For example, the 
Federal courthouse in Alexandria, VA, was described as ``an armed camp, 
with the courthouse complex and surrounding neighborhood becoming a 
virtual encampment, with heavily armed guards, rooftop snipers, bomb-
sniffing dogs, blocked streets and identification checks.'' If we had 
tried him at Guantanamo Bay, in the military commission there, these 
security concerns would have been accounted for, and we wouldn't have 
had to disrupt Virginia to do that. It is not a problem we would 
confront in our military commission system.
  In addition, in the civilian trial of 9/11 terrorist Zacarias 
Moussaoui, sensitive material was inadvertently leaked because our 
civilian court system, as wonderful as it is, is not set up as well to 
deal with cases involving sensitive information during a time of war.
  Moussaoui also mocked 9/11 victims and used the civilian trial as a 
platform to spew terrorist propaganda.
  All of these negative side effects of trying a terrorist in a 
civilian court would have been eliminated or significantly mitigated if 
he had been detained in military custody and tried before a military 
commission.
  In the case of Omar Abdel Rahman, commonly known as the Blind Sheik, 
which has also been cited here today, the civilian trial provided 
intelligence to Osama bin Laden. So when I hear that case cited as a 
success, the first thing that comes to my mind is, if intelligence was 
provided to Osama bin Laden, how is that a success when our No. 1 focus 
should be on protecting the American people? And that has to be the 
distinction between trying enemy combatants in a time of war and the 
very important purpose of our civilian court system.
  In the case of the Blind Sheik, according to Michael Mukasey, the 
former Attorney General, ``in the course of prosecuting Omar Abdel 
Rahman, the government was compelled--as it is in all cases that charge 
a coconspiracy charge--to turn over a list of unindicted coconspirators 
to the defendants. Within 10 days, a copy of that list of unindicted 
coconspirators reached bin Laden in Khartoum.''
  The notion that a list--because you had to do it, according to our 
civilian court system where notice requirements are very important, 
where generally our court systems are open--would be provided to Osama 
bin Laden, in my view, is unacceptable, a risk we could have avoided if 
we treated the Blind Sheik as he should have been treated, which is as 
an enemy combatant and tried in a military commission.
  Civilian trials of enemy combatants have provided a treasure trove of 
information to terrorists, and I think those risks have been very 
discounted by my esteemed colleagues who have come to the floor to 
oppose my amendment.
  According to open source reporting, the cost of disclosing 
information unwisely became clear after the New York trials of bin 
Laden associates for the 1998 bombings of U.S. Embassies in Africa. 
Some of the evidence indicated that the National Security Agency, the 
U.S. foreign eavesdrop organization, had intercepted cell phone 
conversations. Shortly thereafter, bin Laden's organization stopped 
using cell phones to discuss sensitive operational details.
  It is also important to note that the record of trying enemy 
combatants in civilian courts is not as good as it has been made out to 
be. Opponents of my amendment don't often speak about Ahmed Ghailani.
  Ghailani is a Tanzanian who was charged with a total of 284 counts, 
including 200-plus counts of murder and 1 count of conspiracy in the 
1998 bombings of the U.S. Embassies in Tanzania and Kenya. The bombings 
killed 224 people, including 12 Americans. He also spent time as Osama 
bin Laden's bodyguard.
  He was tried in the U.S. District Court for the Southern District of 
New York. The Department of Justice directed the U.S. attorney not to 
seek the death penalty. At trial, the presiding justice excluded from 
evidence the testimony of a key witness--a Tanzanian, who may have 
issued statements implicating him in the bombings. And on November 17, 
2010, a jury, after this evidence was excluded, found Ghailani only 
guilty of 1 count of a conspiracy and acquitted him of all 284 other 
charges, including the murder charges. He murdered 284 people--12 
Americans--and he was acquitted of murder charges. I think that is a 
case that shows our civilian court system is not always the best way to 
deal with enemy combatants and is very contrary to what I have heard on 
the cases cited from my opponents of this amendment.
  Proponents of civilian trial, such as Attorney General Holder, want 
to criminalize the war, but they fail to cite these cases where the 
civilian

[[Page S6746]]

court system leaked classified information to terrorists or, because of 
excluded evidence, where terrorists are not held fully accountable.
  Military detention for enemy combatants has always been the rule, not 
the exception. Why are we treating this war any differently? Civilian 
courts rightly focus on prosecution, but in detaining enemy combatants 
when at war, they miss the most important goal we have to have; that 
is, gathering intelligence and protecting the American people against 
future attacks.
  Civilian trials for enemy combatants incur tremendous costs and cause 
civic disruption. That is why the administration itself has reversed 
its position on trying Khalid Shaikh Mohammed in New York City. They 
wanted to try the mastermind behind 9/11 in the middle of New York 
City, but the American people were so outraged by trying someone who is 
the mastermind of 9/11 in the middle of New York City and the millions 
of dollars it would have cost to protect the citizens of New York from 
this horrible individual, giving him a forum in the middle of New York 
City.
  Again, the costs associated with protecting the American people in 
these civilian trials alone is enough to treat them as they should be--
in military commissions.
  We risk compromising classified information, and we risk the eventual 
release of these combatants into American society.
  For these reasons, consistent with a longstanding precedent, we 
should not be bringing enemy combatants to the United States for 
civilian trials. If the Obama administration is willing to kill enemy 
combatants without due process, and I applaud them for doing so, why is 
the administration so against placing these same enemy combatants in 
military custody and detaining them under the law of war, and when 
appropriate trying them in military commissions?
  I think the answer is clear. Unfortunately, I am concerned that it is 
a political decision rather than putting intelligence gathering first 
in order to protect the American people and treat these enemy 
combatants as what they are--enemies of our country. I urge my 
colleagues to support my amendment. In my view, beyond the policy 
reasons for not trying enemy combatants in civilian courts, we should 
ask ourselves why should we bring foreign terrorists to the United 
States and give them the legal protections reserved for U.S. citizens 
and secured by those Americans who have fought and died for those 
rights? Why do these people deserve access to our American court 
system? They are our enemies. In the civilian court systems there are 
rights guaranteed, such as Miranda rights and speedy presentment, that 
should not be extended to enemy combatants. We need to prioritize 
protecting our country. I think the American people will agree with me 
when I say that no terrorist should ever hear the words ``you have the 
right to remain silent.''
  I urge my colleagues to support my amendment No. 753.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                     Amendment No. 792, As Modified

  Mr. COBURN. Mr. President, I ask the pending amendment be set aside 
and my previous pending amendment No. 792 be brought up.
  I have a modification to that amendment that I sent to the desk. I 
thank the Senator from California for giving me this privilege.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
amendment is so modified.
  The amendment, as modified, is as follows:

       At the appropriate place, insert the following:
       Sec. __.  The Secretary of Housing and Urban Development 
     may not make a payment to any person or entity with respect 
     to a property assisted or insured under a program of the 
     Department of Housing and Urban Development that--
        (a) on the date of enactment of this Act, is designated as 
     ``troubled'' on the Online Property Integrated Information 
     System for ``life threatening deficiencies'' or ``poor'' 
     physical condition; and
       (b) has been designated as ``troubled'' for ``life 
     threatening conditions'' or ``poor'' physical condition on 
     the Online Property Integrated Information System at least 
     once during the 5-year period ending on the date of enactment 
     of this Act.

  The PRESIDING OFFICER. The Senator from California.


                           Amendment No. 753

  Mrs. FEINSTEIN. Mr. President, I rise as chairman of the Intelligence 
Committee to speak against amendment 753 to this appropriations bill. 
In sum, this amendment will require members of al-Qaida to be 
prosecuted only by military commissions. It will cripple executive 
authority and flexibility to go after terrorists. Of all things in this 
area where we should be agreed and the President should have maximum 
flexibility, it is with the disposition of people who commit acts of 
terror in this country. I feel very strongly about this.
  The military commission system has been in effect since 2006. It has 
had six convictions. By comparison, terrorists have been tried by 
previous administrations, including the Bush administration, in article 
III courts, and more than 400 of them have been convicted and are 
serving time in Federal prisons.
  One case may be brought up where somebody disagrees with a verdict. 
You can disagree with a Federal jury, but you cannot disagree with the 
record of conviction and the strong sentences imposed. I will go into 
this in a little more detail in a few minutes.
  Just to say again, I have never seen a time when Congress has tried 
so much to constrain the power of the president and our professionals 
in law enforcement in their efforts to defeat terrorism.
  As has been the policy of Republican and Democratic Presidents, the 
decision about how to prosecute a suspected terrorist should be based 
on the facts and the circumstances of each case and our national 
security interests, not politics.
  Some of the most well-known terrorists of the past decade--``Shoe 
Bomber'' Richard Reid, ``Blind Sheik'' Omar Abdel Rahman and the ``20th 
Hijacker'' Zacarias Moussaoui--are serving life sentences after being 
tried in Article III criminal courts.
  Prosecuting terrorists in military commissions makes sense in some 
cases, but requiring it for all AI-Qaeda terrorists in each and every 
case is not in the national security of the U.S.
  In fact, that would severely limit our ability to handle some of the 
biggest threats.
  To understand why this proposed amendment would be such bad policy, 
consider the two recent cases where al-Qaida tried to use operatives to 
attack our Homeland, but we captured and arrested the terrorists 
instead.
  First, Najibullah Zazi, a legal permanent resident of the U.S., was 
arrested in September 2009 as part of an al-Qaida conspiracy to carry 
out suicide bombings on the New York City subway system.
  Then on Christmas 2009, Umar Farouk Abdulmutallab attempted to 
detonate plastic explosives hidden in his underwear while on board 
Northwest Airlines Flight 253 before it landed in Detroit, Michigan. 
Al-Qaida in the Arabian Peninsula--AQAP--claimed responsibility for the 
attempted attack and said that Abdulmutallab had trained with and been 
tasked to carry out the plot for AQAP.
  In both cases, the FBI arrested each Al Qaeda operative in the midst 
of the unfolding terrorist plot, and was able to obtain useful 
intelligence through interrogation.
  Most recently the DEA and the FBI, through shared intelligence, were 
able to interrupt an Iranian plot to kill the Saudi Ambassador right 
here in Washington, DC. That man will be tried in Federal court. That 
man was successfully interrogated by the FBI. That man spilled his guts 
to the FBI, as they say in the vernacular.
  Umar Farouk Abdulmutallab pleaded guilty last week to all counts of 
an eight-count criminal indictment charging him for his role in the 
attempted Christmas Day 2009 bombing of Northwest Airlines flight 253. 
He cooperated, provided intelligence, and will probably spend the rest 
of his life behind bars when he is sentenced in January.
  By comparison, two of six of the individuals convicted in military 
commissions are already out of prison living freely in their home 
countries of Yemen and Australia. Consider all of the following 
relatively light sentences handed down by military commissions since 9/
11:
  Bin Laden's driver, Salim Hamdan--acquitted of conspiracy and only 
convicted of material support for terrorism--received a five-month 
sentence

[[Page S6747]]

and was sent back to his home in Yemen to serve the time before being 
released in January 2009.
  Australian David Hicks--the first person convicted in a military 
commission when he entered into a plea agreement on material support 
for terrorism charges in March 2007--was given a 9-month sentence, 
which he mostly served back at home in Australia.
  Omar Khadr pleaded guilty in a military commission in exchange for an 
8-year sentence, but he will likely be transferred to a Canadian prison 
after 1 year.
  Ibrahim Ahmed Mahmoud al-Qosi pleaded guilty to conspiracy and 
material support to terrorism in July 2010. In August 2010, a jury 
delivered a 14-year sentence, but the final sentence handed down in 
February 2011 was 2 years pursuant to his plea agreement.
  Noor Uthman Muhammed pleaded guilty to conspiracy and material 
support to terrorism in February 2011. A jury delivered a 14-year 
sentence, but the final sentence will be less than 3 years pursuant to 
his plea agreement. These are military commission trials.
  Ali Hamza al-Bahlul received a life sentence after he boycotted the 
entire military commission process and was convicted of soliciting 
murder and material support for terrorism without mounting a defense.
  In the Zazi case, what the Senator from New Hampshire was suggesting 
would actually require the government to split up co-defendants even 
where they would otherwise be prosecuted as part of the same 
conspiracy.
  For example, Zazi's alleged co-conspirators Zarein Ahmedzay and Adis 
Medunjanin would be prosecuted on terrorist charges in criminal court, 
but Zazi himself would have to be transferred to a military commission.
  Splitting up co-conspirators into two different detention and 
prosecution systems might prevent prosecutors from achieving the guilty 
pleas and likely long prison sentences that will be secured in the Zazi 
conspiracy case. Prosecutors have already obtained convictions against 
six individuals, including Zazi and Ahmedzay, who face life in Federal 
prison without parole.
  Importantly, we have heard from intelligence officials and others 
that a mandatory military commission policy will reduce our allies' 
willingness to extradite terror suspects to the United States for 
interrogation or prosecution, or even provide evidence about suspected 
terrorists if they will be shipped off to military commissions in all 
cases.
  You might say why would our allies do that? I will tell you why: 
Because our allies--who know about the past five years and know about 
the opposition to military commissions in their countries--are very 
reluctant to give evidence to a judicial process that does not adhere 
to the rule of law as much as our tried and tested Federal court system 
does.
  Take the 9/11 commission report, which recommends the following on 
page 380:

       [t]he United States should engage its friends to develop a 
     common coalition approach toward the detention and humane 
     treatment of captured terrorists.

  If Congress rejects the views of our allies and mandates military 
commission prosecutions for al-Qaida terrorists, it will also be a 
rejection of a recommendation from the 9/11 commission. Moreover, we 
will be undermining international law enforcement cooperation and 
dangerous terrorists could be set free as a result.
  Every single suspected terrorist captured on American soil, before 
and after September 11, has been taken into custody by law 
enforcement--not the U.S. military. This should never change. If 
somebody commits an act on our soil, they should be prosecuted in an 
article III court. This doesn't mean that we are soft on terrorism in 
any way, but it does mean that terrorists should be brought to justice, 
forced to stand trial and given a very serious sentence.
  As John Brennan, the Assistant to the President for Homeland Security 
and Counterterrorism, stated in a March speech:

       Terrorists arrested inside the United States will, as 
     always, be processed exclusively through our criminal justice 
     system. As they should be. The alternative would be 
     inconsistent with our values and our adherence to the rule of 
     law. Our military does not patrol our streets or enforce our 
     law in this country. Nor should it.

  I could not agree more.
  In summary, amendment No. 753, authored by the Senator from New 
Hampshire, will severely and seriously undermine our ability to 
incapacitate dangerous individuals and protect the American people. I 
believe this is something we cannot afford and I hope this body will do 
everything it can to protect the executive branch's flexibility.
  I ask unanimous consent to have printed in the Record a letter from 
the Department of Justice, dated March of 2010 which describes the more 
than 400 terrorist convictions in article III courts.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, March 26, 2010.
     Hon. Dianne Feinstein,
     Chairman, Select Committee on Intelligence,
     U.S. Senate, Washington, DC.
     Hon. Christopher S. Bond,
     Vice Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Chairman Feinstein and Vice Chairman Bond: I am 
     writing in response to requests by a number of Members of the 
     Committee for information about statistics maintained by the 
     Department of Justice relating to prosecution of terrorism 
     and terrorism-related crimes, as well as the incarceration of 
     terrorists by the Bureau of Prisons.
       The Counterterrorism Section of the National Security 
     Division (NSD) (and its predecessor section in the Criminal 
     Division) has maintained a chart of international terrorism 
     and terrorism-related prosecutions since September 11, 2001. 
     A copy of that chart, which currently includes just over 400 
     defendants, and a brief introduction describing its contents, 
     is enclosed with this letter. This chart was initially 
     developed and has since been maintained and regularly updated 
     on a rolling basis by career federal prosecutors. The bulk of 
     the data included in the chart was generated, and relates to 
     prosecutions that occurred, during the prior Administration. 
     In fact, the data was cited publicly by the prior 
     Administration on repeated occasions, including:
       In a book entitled ``Preserving Life & Liberty: The Record 
     of the U.S. Department of Justice 2001-2005,'' released in 
     February 2005, the Department said, ``Altogether, the 
     Department has brought charges against 375 individuals in 
     terrorism-related investigations, and has convicted 195 to 
     date.''
       In its February 2008 budget request for Fiscal Year 2009, 
     the Department of Justice said, ``Since 2001, the Department 
     has increased its capacity to investigate terrorism and has 
     identified, disrupted, and dismantled terrorist cells 
     operating in the United States. These efforts have resulted 
     in the securing of 319 convictions or guilty pleas in 
     terrorism or terrorism-related cases arising from 
     investigations conducted primarily after September 11, 2001, 
     and zero terrorist attacks on American soil by foreign 
     nationals from 2003 through 2007.''
       Please note that the chart includes only convictions from 
     September 11, 2001 to March 18, 2010. It does not include 
     defendants whose convictions remain under seal, nor does it 
     include defendants who have been charged with a terrorism or 
     terrorism-related offense but have not been convicted either 
     at trial or by guilty plea. Finally, it does not include 
     convictions related solely to domestic terrorism.
       The NSD chart includes the defendant's name, district, 
     charging date, charges brought, classification category, 
     conviction date, and conviction charges, as well as the 
     sentence and the date it was imposed, if the defendant has 
     been sentenced. As the introduction to the NSD chart 
     explains, the data includes convictions resulting from 
     investigations of terrorist acts planned or committed outside 
     the territorial jurisdiction of the United States over which 
     Federal criminal jurisdiction exists and those within the 
     United States involving international terrorists and 
     terrorist groups. NSD further divides these cases into two 
     categories. The first includes violations of federal statutes 
     that are directly related to international terrorism and that 
     are utilized regularly in international terrorism matters, 
     such as terrorist acts abroad against U.S. nationals and 
     providing material support to a foreign terrorist 
     organization. There have been more than 150 defendants 
     classified in this category since September 11, 2001. The 
     second category includes a variety of other statutes (like 
     fraud, firearms offenses, false statements, or obstruction of 
     justice) where the investigation involved an identified link 
     to international terrorism. There have been more than 240 
     individuals charged in such cases since September 11, 2001. 
     Examples of the international terrorism nexus identified in 
     some of these cases have also been provided for your review.
       Prosecuting terror-related targets using these latter 
     offenses is often an effective method--and sometimes the only 
     available method--of deterring and disrupting potential 
     terrorist planning and support activities. Indeed, one of the 
     great strengths of the criminal justice system is the broad 
     range of offenses that are available to arrest and convict 
     individuals believed to be linked to terrorism, even if a 
     terrorism offense cannot be established. Of course, an 
     aggressive and

[[Page S6748]]

     wide-ranging terrorism investigation will net individuals 
     with varying degrees of culpability and involvement in 
     terrorist activity, as the NSD chart reflects. Arresting and 
     convicting both major and minor operatives, supporters, and 
     facilitators can have crippling effects on terrorists' 
     ability to carry out their plans.
       You will also note that the sentences obtained in these 
     cases range from a few months to life. Life sentences have 
     been imposed by our courts in 12 international terrorism or 
     terrorism-related cases since 9/11, and sentences of more 
     than 10 years have been imposed in an additional 59 cases, 
     including 25 cases in which the sentence exceeded 20 years. 
     We believe the long sentences often imposed by our courts in 
     these cases reflect the gravity of the threat posed by these 
     individuals to our nation. However, it is important to note 
     that while a long sentence is an important measure of success 
     in a terrorism-related prosecution, it is not the only 
     measure. Convicting an individual of an available offense and 
     incarcerating him even for a relatively short period of time 
     may be an effective way to disrupt ongoing terrorist 
     activity, deter future activity, collect important 
     intelligence, secure valuable cooperation, or facilitate 
     rapid deportation of an individual.
       This vital work continues. In the past year, thanks to the 
     hard work of dedicated career professionals--FBI agents, 
     other federal and state law enforcement officials, and career 
     federal prosecutors--we have been able to disrupt terrorist 
     plots, convict and imprison terrorists and their supporters, 
     and collect intelligence we need to protect the country. We 
     detected and disrupted a plot to attack the subway system in 
     Manhattan with explosive bombs that could have killed many 
     Americans. We conducted successful undercover operations to 
     arrest individuals who separately attempted to blow up 
     buildings in Dallas, Texas, and Springfield, Illinois. And we 
     arrested individuals in Chicago who assisted in the deadly 
     November 2008 terror attacks in Mumbai and were plotting 
     other attacks.
       Finally, the Bureau of Prisons (BOP) maintains a separate 
     chart that identifies inmates in BOP custody who have a 
     history of or nexus to international or domestic terrorism. 
     There are currently more than 300 individuals on this chart, 
     which is used to identify those inmates who may warrant 
     increased supervision and monitoring of their communications, 
     among other things. BOP's designation of these inmates may be 
     based upon information from a variety of sources, including 
     sensitive law enforcement or intelligence information that is 
     not publicly available, regarding the inmate's past behavior 
     and associations. BOP does not publicly disclose which 
     inmates have been designated in this fashion. The disclosure 
     of this information could interfere with BOP's monitoring and 
     law enforcement investigative efforts. Moreover, disclosure 
     of the identities of these inmates could pose risks to the 
     security of the inmates and prison staff.
       Should you or your staff wish to review the BOP chart, BOP 
     is prepared to provide the Committee with access to the chart 
     under conditions designed to protect security and operational 
     equities.
           Sincerely,
                                                     Ronald Weich,
                                       Assistant Attorney General.
       Enclosure.

   Introduction to National Security Division Statistics on Unsealed 
       International Terrorism and Terrorism-Related Convictions

       The National Security Division's International Terrorism 
     and Terrorism-Related Statistics Chart tracks convictions 
     resulting from international terrorism investigations 
     conducted since September 11, 2001, including investigations 
     of terrorist acts planned or committed outside the 
     territorial jurisdiction of the United States over which 
     Federal criminal jurisdiction exists and those within the 
     United States involving international terrorists and 
     terrorist groups. Convictions listed on the chart involve the 
     use of a variety of Federal criminal statutes available to 
     prevent, disrupt, and punish international terrorism and 
     related criminal activity. The convictions are the product of 
     the Department's aggressive, consistent, and coordinated 
     national enforcement effort with respect to international 
     terrorism that was undertaken after the September 11, 2001 
     terrorist attacks.
       Criminal cases arising from international terrorism 
     investigations are divided into two categories, according to 
     the requisite level of coordination and monitoring required 
     by the Counterterrorism Section of the National Security 
     Division (or its predecessor section in the Criminal 
     Division). This coordination and monitoring exists in 
     response to the expanded Federal criminal jurisdiction over 
     and importance of international terrorism matters and the 
     need to ensure coherent, consistent, and effective Federal 
     prosecutions related to such matters. Typically, multiple 
     defendants in a case are classified in the same category.
       Category I cases involve violations of federal statutes 
     that are directly related to international terrorism and that 
     are utilized regularly in international terrorism matters. 
     These statutes prohibit, for example, terrorist acts abroad 
     against United States nationals, the use of weapons of mass 
     destruction, conspiracy to murder persons overseas, providing 
     material support to terrorists or foreign terrorist 
     organizations, receiving military style training from foreign 
     terrorist organizations, and bombings of public places or 
     government facilities. A complete list of Category I offenses 
     is found in Appendix A.
       Category II cases include defendants charged with violating 
     a variety of other statutes where the investigation involved 
     an identified link to international terrorism. These Category 
     II cases include offenses such as those involving fraud, 
     immigration, firearms, drugs, false statements, perjury, and 
     obstruction of justice, as well as general conspiracy charges 
     under 18 U.S.C. Sec. 371. Prosecuting terror-related targets 
     using Category II offenses and others is often an effective 
     method--and sometimes the only available method--of deterring 
     and disrupting potential terrorist planning and support 
     activities. This approach underscores the wide variety of 
     tools available in the U.S. criminal justice system for 
     disrupting terror activity. Examples of Category II offenses 
     are listed in Appendix B, and examples of Category II cases 
     are described in Appendix C to illustrate the kinds of 
     connections to international terrorism that are not apparent 
     from the nature of the offenses of conviction themselves.
       The chart includes the defendant's name, district, charging 
     date, charges brought, classification category, conviction 
     date and conviction charges. If a convicted defendant has 
     been sentenced, the relevant date and sentence imposed is 
     included. The chart is constantly being updated with new 
     convictions, but currently includes only unsealed convictions 
     from September 11, 2001 to March 18, 2010. The chart does not 
     include defendants whose convictions remain under seal, nor 
     does it include defendants who have been charged with a 
     terrorism or terrorism-related offense but have not been 
     convicted either at trial or by guilty plea. This chart does 
     not include convictions related solely to domestic terrorism. 
     Note that the chart maintained by the National Security 
     Division is distinct from statistics maintained by the Bureau 
     of Prisons to track inmates with terrorist connections. The 
     chart lists more than 150 defendants classified in Category I 
     and more than 240 defendants classified in Category II.
       The chart is organized by conviction date, with the most 
     recent convictions first. The earliest defendants included on 
     the chart were identified and detained in the course of the 
     nationwide investigation conducted after September 11, 2001, 
     and were subsequently charged with a criminal offense. Since 
     then, additional defendants have been added who, at the time 
     of charging, appeared to have a connection to international 
     terrorism, even if they were not charged with a terrorism 
     offense. The decision to add defendants to the chart is made 
     on a case-by-case basis by career prosecutors in the National 
     Security Division's Counterterrorism Section, whose primary 
     responsibility is investigating and prosecuting international 
     and domestic terrorism cases to prevent and disrupt acts of 
     terrorism anywhere in the world that impact on significant 
     United States interests and persons.


                               Appendix A

     Category I Offenses
     Aircraft Sabotage (18 U.S.C. Sec. 32)
     Animal Enterprise Terrorism (18 U.S.C. Sec. 43)
     Crimes Against Internationally Protected Persons (18 U.S.C. 
         Sec. Sec. 112, 878, 1116, 1201(a)(4))
     Use of Biological, Nuclear, Chemical or Other Weapons of Mass 
         Destruction (18 U.S.C. Sec. Sec. 175, 175b, 229, 831, 
         2332a)
     Production, Transfer, or Possession of Variola Virus 
         (Smallpox) (18 U.S.C. Sec. 175c)
     Participation in Nuclear and WMD Threats to the United States 
         (18 U.S.C. Sec. 832)
     Conspiracy Within the United States to Murder, Kidnap, or 
         Maim Persons or to Damage Certain Property Overseas (18 
         U.S.C. Sec. 956)
     Hostage Taking (18 U.S.C. Sec. 1203)
     Terrorist Attacks Against Mass Transportation Systems (18 
         U.S.C. Sec. 1993)
     Terrorist Acts Abroad Against United States Nationals (18 
         U.S.C. Sec. 2332)
     Terrorism Transcending National Boundaries (18 U.S.C. 
         Sec. 2332b)
     Bombings of places of public use, Government facilities, 
         public transportation systems and infrastructure 
         facilities (18 U.S.C. Sec. 2332f)
     Missile Systems designed to Destroy Aircraft (18 U.S.C. 
         Sec. 2332g)
     Production, Transfer, or Possession of Radiological Dispersal 
         Devices (18 U.S.C. Sec. 2332h)
     Harboring Terrorists (18 U.S.C. Sec. 2339)
     Providing Material Support to Terrorists (18 U.S.C. 
         Sec. 2339A)
     Providing Material Support to Designated Terrorist 
         Organizations (18 U.S.C. Sec. 2339B)
     Prohibition Against Financing of Terrorism (18 U.S.C. 
         Sec. 2339C)
     Receiving Military-Type Training from an FTO (18 U.S.C. 
         Sec. 2339D)
     Narco-Terrorism (21 U.S.C. Sec. 1010A)
     Sabotage of Nuclear Facilities or Fuel (42 U.S.C. Sec. 2284)
     Aircraft Piracy (49 U.S.C. Sec. 46502)
     Violations of IEEPA (50 U.S.C. Sec. 1705(b)) involving E.O. 
         12947 (Terrorists Who Threaten to Disrupt the Middle East 
         Peace Process); E.O. 13224 (Blocking Property and 
         Prohibiting Transactions With Persons Who Commit, 
         Threaten to Commit, or Support Terrorism or Global 
         Terrorism List); and E.O. 13129 (Blocking Property and 
         Prohibiting Transactions With the Taliban)

[[Page S6749]]

                               Appendix B

     Examples of Category II Offenses
     Crimes Committed Within the Special Maritime and Territorial 
         Jurisdiction of the United States (18 U.S.C. Sec. Sec. 7, 
         113, 114, 115, 1111, 1112, 1201, 2111)
     Violence at International Airports (18 U.S.C. Sec. 37)
     Arsons and Bombings (18 U.S.C. Sec. Sec. 842(m), 842(n), 
         844(f), 844(I))
     Killings in the Course of Attack on a Federal Facility (18 
         U.S.C. Sec. 930(c))
     False Statements (18 U.S.C. Sec. 1001)
     Protection of Computers (18 U.S.C. Sec. 1030)
     False Information and Hoaxes (18 U.S.C. Sec. 1038)
     Genocide (18 U.S.C. Sec. 1091)
     Destruction of Communication Lines (18 U.S.C. Sec. 1362)
     Sea Piracy (18 U.S.C. Sec. 1651)
     Unlicensed Money Remitter Charges (18 U.S.C. Sec. 1960)
     Wrecking Trains (18 U.S.C. Sec. 1992)
     Destruction of National Defense Materials, Premises, or 
         Utilities (18 U.S.C. Sec. 2155)
     Violence against Maritime Navigation and Maritime Fixed 
         Platforms (18 U.S.C. Sec. Sec. 2280, 2281)
     Torture (18 U.S.C. Sec. 2340A)
     War Crimes (18 U.S.C. Sec. 2441)
     International Traffic in Arms Regulations (22 U.S.C. 
         Sec. 2778, and the rules and regulations promulgated 
         thereunder, 22 C.F.R. Sec. 121-130)
     Crimes in the Special Aircraft Jurisdiction other than 
         Aircraft Piracy (49 U.S.C. Sec. Sec. 46503-46507)
     Destruction of Interstate Gas or Hazardous Liquid Pipeline 
         Facilities (49 U.S.C. Sec. 60123(b))


                               Appendix C

     Examples of Category II Terrorism-Related Convictions
       Fort Dix Plot (conspiracy to murder members of the U.S. 
     military). In 2008, following a jury trial in the United 
     States District Court for the District of New Jersey, Ibrahim 
     Shnewer, Dritan Duka, Shain Duka, Eljvir Duka and Serdar 
     Tatar were convicted of violating 18 U.S.C. Sec. 1117, in 
     connection with a plot to kill members of the U.S. military 
     in an armed attack on the military base at Fort Dix, New 
     Jersey. The defendants were also convicted of various weapons 
     charges. The government's evidence revealed that one member 
     of the group conducted surveillance at Fort Dix and Fort 
     Monmouth in New Jersey, Dover Air Force Base in Delaware, and 
     the U.S. Coast Guard in Philadelphia. The group obtained a 
     detailed map of Fort Dix, where they hoped to use assault 
     rifles to kill as many soldiers as possible. During the 
     trial, the jury viewed secretly recorded videotapes of the 
     defendants performing small-arms training at a shooting range 
     in the Poconos Mountains in Pennsylvania and of the 
     defendants watching training videos that included depictions 
     of American soldiers being killed and of known Islamic 
     radicals urging jihad against the United States.
       Fawaz Damrah (citizenship fraud). In 2004, following a jury 
     trial in the United States District Court for the Northern 
     District of Ohio, Fawaz Damrah was convicted of violating 18 
     U.S.C. Sec. 1425 for concealing material facts in his 
     citizenship application. The government's evidence showed 
     that in his citizenship application, Damrah concealed from 
     the U.S. government his membership in or affiliation with the 
     Palestinian Islamic Jihad (PIJ), a.k.a. the Islamic Jihad 
     Movement in Palestine; the Afghan Refugees Services, Inc., 
     a.k.a. Al-Kifah Refugee Center; and the Islamic Committee for 
     Palestine. Damrah further concealed the fact that he had, 
     prior to his application for U.S. citizenship, ``incited, 
     assisted, or otherwise participated in the persecution'' of 
     Jews and others by advocating violent terrorist attacks 
     against Jews and others. During the trial, the government's 
     evidence included footage of a 1991 speech in which Damrah 
     called Jews ``the sons of monkeys and pigs,'' and a 1989 
     speech in which he declared that ``terrorism and terrorism 
     alone is the path to liberation.''
       Soliman Biheiri (false statements and passport fraud). In 
     2003 and 2004, following two jury trials in the United States 
     District Court for the Eastern District of Virginia, Soliman 
     Biheiri was convicted of violating 18 U.S.C. Sec. Sec. 1425 
     and 1546 for fraudulently procuring a passport, as well as 18 
     U.S.C. Sec. Sec. 1001 and 1015 for making false statements to 
     federal agents. Biheiri was the president of BMI, Inc., a New 
     Jersey-based investment firm. The government's evidence 
     showed that Biheiri had deliberately deceived federal agents 
     during a June 2003 interview in which he denied having 
     business or personal ties to Mousa Abu Marzook, a Specially 
     Designated Global Terrorist and a leader of Hamas. In fact, 
     the government's evidence showed that Biheiri had managed 
     funds for Marzook both before and after Marzook was 
     designated as a terrorist by the U.S. government in 1995. 
     Specifically, the government presented files seized from 
     Biheiri's computer showing that Marzook had invested $1 
     million in U.S. business ventures managed by Biheiri and his 
     investment firm.
       Mohammad Salman Farooq Qureshi (false statements). In 2005, 
     following the entry of a guilty plea in the United States 
     District Court for the Western District of Louisiana, Qureshi 
     was convicted of violating 18 U.S.C. Sec. 1001 for making 
     false statements to the FBI regarding the nature and extent 
     of his involvement with al-Qaeda member Wadih El Hage, and 
     the non-governmental organization Help Africa People. Qureshi 
     was interviewed by the FBI in 1997, 1998, 2000, and 2004 in 
     relation to terrorism crimes and during those interviews lied 
     about his knowledge of El Hage, Help Africa People, and other 
     al Qaeda members. The proffer filed in support of the plea 
     agreement established Qureshi's connections to and contacts 
     with El Hage, his contact with a subject under investigation 
     in Oregon, and his activities and financial support of Help 
     Africa People, a non-governmental organization believed to 
     have been used by El Hage and others to provide cover 
     identities and funds in connection with the 1998 attacks on 
     the United States Embassies in Kenya and Tanzania. By 
     Qureshi's admissions, at least $30,000 in Qureshi's funds 
     were given to El Hage in Nairobi, Kenya. El Hage is serving a 
     life sentence for his role in the East Africa Embassy 
     bombings.
       Sabri Benkahla (perjury, obstruction, false statements). In 
     2007, following a jury trial in the United States District 
     Court for the Eastern District of Virginia, Sabri Benkahla 
     was convicted on two counts of violating 18 U.S.C. Sec. 1623, 
     for perjury, one count of violating 18 U.S.C. Sec. 1503 for 
     obstructing justice, and one count of violating 18 U.S.C. 
     Sec. 1001 for making false statements to the FBI. These false 
     statements included denial of his involvement with an 
     overseas jihad training camp in 1999, as well as his asserted 
     lack of knowledge about individuals with whom he was in 
     contact. The government's evidence revealed that the grand 
     jury and FBI in 2004 sought to question Benkahla about his 
     contacts with Ibrahim Buisir of Ireland, and Manaf Kasmuri of 
     Malaysia, both of whom are Specially Designated Global 
     Terrorists, as well as those with Ahmed Abu Ali, his friend 
     and fellow student at the University of Medina, until both 
     were arrested by Saudi authorities in June 2003. Further, the 
     government's evidence revealed that the grand jury and FBI 
     sought to question Benkahla about his contacts with an 
     individual suspected of being Malik al-Tunisi, a facilitator 
     for the al-Zarqawi terrorist network in Iraq.
       Akram Musa Abdallah (false statements). In 2009, following 
     the entry of a guilty plea in the United States District 
     Court for the District of Arizona, Akram Musa Abdallah was 
     convicted of violating 18 U.S.C. Sec. 1001 for making false 
     statements to the FBI. In January 2007, Abdallah knowingly 
     made a false material statement to special agents of the FBI 
     during an interview in connection with the federal 
     investigation and prosecution of the Holy Land Foundation for 
     Relief & Development (HLF) and its officers. At the time of 
     the interviews, Abdallah knew the HLF was a Specially 
     Designated Global Terrorist organization. Abdallah also knew 
     that when he was interviewed, the HLF and its officers were 
     pending trial in the United States District Court for the 
     Northern District of Texas, for crimes including providing 
     material support to a foreign terrorist organization. During 
     the interviews, Abdallah told FBI agents he was not involved 
     in fundraising activities for the HLF, when, in fact, between 
     approximately 1994 and 1997, Abdallah was involved in 
     numerous fundraising activities, including collecting 
     donations, organizing, facilitating and coordinating fund 
     raising events on behalf of the HLF in the Phoenix 
     metropolitan area. In July 2004, the HLF and seven of its 
     principals were indicted on a variety of charges stemming 
     from its financial support of Hamas, and in November 2008, 
     after a two-month trial, those defendants were convicted on 
     all charges.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.


                           Amendment No. 769

  Mr. ROBERTS. Mr. President, I rise to raise significant concerns with 
the pending modified amendment offered by my good friend and colleague, 
Senator David Vitter. His amendment allows for the importation of 
prescription drugs from Canada. I am going to reiterate some of the 
same concerns that are voiced every time we discuss drug importation.
  Let me also say that I think we all want more inexpensive drugs for 
our constituents. We all want broader access to drugs and therapies. 
That is a given. I know that is precisely the intent of my colleague. 
However, we want to ensure our constituents are safe when they are 
taking these drugs no matter what the expense--not only that, but 
Americans expect to be kept safe.
  I must raise concerns that nothing in the Vitter amendment ensures 
the safety of drugs that would be imported from Canada. That is the 
lone country that is involved in regard to his pending amendment. Some 
say only the FDA-approved drugs would be imported and only safe drugs 
will be imported. But the reality is that the last four Secretaries of 
Health and Human Services--from Shalala, to Thompson, to Leavitt, and 
now Sebelius--have been unable to guarantee that these imported drugs 
are safe, not from Canada and not from any other country.
  While my friend from Louisiana claims he has narrowed the scope of 
his

[[Page S6750]]

amendment, the modified Vitter amendment remains so broad in scope that 
it could potentially tie the hands of the FDA in limiting counterfeit 
drugs reaching the United States, which is something we desperately do 
not want. The FDA has found on several occasions that drugs promoted 
and sold as Canadian actually come from many other countries with very 
little oversight on safety and efficacy.
  Finally, a New York Times investigation found that counterfeit drugs 
were sold through Canadian Internet pharmacies. It is easy to conclude 
that because these drugs were sourced from many other countries, it 
would be impossible to guarantee their safety.
  The bottom line is the FDA cannot--not a little, not a lot; 
absolutely cannot--ensure that any drug coming from outside the United 
States is safe or effective. Until we can ensure that the drugs our 
constituents are taking are effective and, most importantly, safe, I 
must oppose the Vitter amendment today or whenever it is brought up and 
would encourage my colleagues to join me.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.


                      Amendments Nos. 814 and 815

  Ms. MIKULSKI. Mr. President, this is a very interesting bill on the 
floor. It is really three bills. It is the Agriculture appropriations, 
Commerce-Justice-Science, and the Transportation-Housing bill.
  Our colleague, Senator Herb Kohl of Wisconsin, spent a good part of 
yesterday managing the bill. He chairs the agriculture subcommittee. I 
am doing it today. Senator Kohl is tied up on other matters.
  He is adamant in his opposition to the Moran amendment providing $8 
million for the Watershed Rehabilitation Program. While he is not 
opposed to the Watershed Rehabilitation Program, he wanted to make it 
clear that we had to make very difficult decisions. He does not support 
Senator Moran's amendment as it would offset funding in the 
departmental administration providing numerous essential services to 
USDA. These cuts would force USDA to impose a reduction in force and 
would have a detrimental effect on the Department and its operation.
  USDA has initiated buyouts to several thousand employees across many 
agricultural agencies. The level for the Department administration is 
over $13 million and $7 million below the request. Secretary Vilsack 
has reached out to the agricultural subcommittee and has concerns with 
overall staff reductions at the Department. Senator Kohl echoes 
Secretary Vilsack's concern.
  Senator Kohl opposes this amendment, and on his behalf, I urge other 
Senators to oppose it as well.
  He also opposed the Crapo amendment because, in a nutshell, says that 
dictating that funds cannot be used unless the rulemaking agenda and 
implementation schedule meet with congressional approval or 
constraining the regulatory process of defining terms just goes too far 
and is a veiled attempt to roll back critical Dodd-Frank reforms, 
particularly in the derivative area.
  Again, on behalf of Senator Kohl, he urges all Senators to reject 
Crapo amendment No. 814.
  I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 791

  Ms. STABENOW. Mr. President, I rise to speak in opposition to the 
Coburn amendment No. 791, and I am pleased to be joined on the floor by 
my good friend and colleague and ranking member, Senator Roberts.
  Let me start by saying that in the context of addressing a very large 
deficit we know needs to be addressed and in the context of the work 
being done by colleagues in what has been called the supercommittee, I 
am very proud of the fact that Senator Roberts and I and our 
colleagues, the chair and ranking member of the House Agriculture 
Committee, have come together and worked very hard, for different 
regions of the country, on different issues that we bring to the table. 
We have agreed on an overall reduction number that we have recommended 
as agriculture's portion of the deficit reduction.
  We have already done deficit reduction, I have to say. We have 
already seen cuts in crop insurance, we have already seen cuts in the 
current year's budget that were substantial. But we know we need to do 
our part, and we are doing that. We are recommending $23 billion in 
deficit reduction.
  Part of that, though, the critical part of that is we have asked the 
committee to allow us, as the leadership in the House and Senate, to 
propose the policy that goes with the cuts. We are working with all of 
those who are affected, from production agriculture, to conservation 
groups, the nutrition community, rural development, everyone who is 
involved and impacted by the 16 million jobs in agriculture. There are 
16 million jobs. That is one out of four jobs in Michigan. This is 
incredibly important to our economy.
  We are taking very seriously the need for us to come together and 
create changes, reforms in agricultural policy that streamline the 
system and the bureaucracy, do a better job with dollars, 
accountability, and reform what we are doing as it relates to the 
agricultural payment structure. It is in the context of that that I 
rise to oppose Senator Coburn's amendment. I appreciate his well-
intended amendment, but I would say two things.
  First of all, I understand he is proposing caps of $1 million on 
direct payments. We are in the process of changing that and 
recommending positive reforms in that whole system.
  So we would ask that the Senate, our colleagues, to support us and 
the recommendations that we have been asked to put together by November 
1, which is extremely fast-tracked, but we are working diligently, and 
our staffs are working diligently. There is not a lot of sleep right 
now so we can get this all done and put forward this new policy. So it 
is the wrong time and place to be suggesting this change, first of all, 
on an appropriations bill and, secondly in the context of this 
bipartisan, bicameral, good-faith effort to put forward changes in our 
system, which we are committed to doing, which will, frankly, usurp 
what this amendment is really all about.
  Let me also say that it is important to talk about the fact that we 
have made changes in the last two farm bills. In 2002, there was a cap 
put on payments of $2.5 million, and we then lowered that in the 2008 
farm bill to $500,000 for nonfarm income and $750,000 for farm income. 
We made a number of changes and a number of reforms in the last farm 
bill that moved us in the right direction, listening to the criticisms 
and concerns of the public and of colleagues. I think there were some 
very important steps that were made and positive changes in the last 
farm bill.
  Understanding the world we are in now and the dynamics around deficit 
reduction and the economy and all of the other issues we are involved 
in, we are taking another major step, and I think it is a step being 
done in a way that says to colleagues and says to the public that we 
can work together. These are challenging policies, economic issues.
  We have come together and worked very hard on a bipartisan basis with 
the House and the Senate, and I think this speaks well to the fact that 
if we sit down together and listen to each other and are willing to 
compromise, we can come together on something that is good for the 
country. We are in the process of doing that right now. I would ask our 
colleagues to allow us and support us in that effort.
  We have put forward a proposal for $23 billion in deficit reduction, 
which is, frankly, more than would be required under sequestration for 
agriculture. We have gone above and beyond what the Bowles-Simpson 
proposal said. We know agriculture will want to do its part. We are 
asking colleagues to allow us to put together that policy to get there.
  We will address the concerns that have been raised. We hear you. We 
understand. We will be proposing substantial changes that will, in 
fact, both create new tools for agriculture for our farmers and our 
ranchers but also address concerns that have been raised. I

[[Page S6751]]

ask my colleagues, rather than supporting this amendment, to support 
what is a good-faith effort that is going on right now in the House and 
Senate Agriculture Committees and allow us the time in the next week to 
put together the proposals to be able to make a change.
  With that, I yield to my friend--and I do mean my friend--we have 
become good friends as well as colleagues on the Agriculture Committee. 
I have to say I loved being in Kansas and having the opportunity to be 
with Senator Roberts and experience the high esteem with which he is 
held there. At the same time, I saw tremendous devastation as a result 
of what has happened with the droughts. I understand that when there is 
bad weather, when there are bad conditions, we need to have support for 
American agriculture. Food security, national security depends on it. I 
certainly saw in Kansas what happens when the weather is bad and it has 
reinforced for me--as well as what happened in Michigan--certainly the 
importance of having a strong set of tools to manage risk and a safety 
net that is there when farmers need it.
  I yield to my friend, the distinguished ranking member.
  Mr. ROBERTS. Mr. President, I thank very much the distinguished 
chairwoman for yielding. We are talking about amendment No. 791, the 
pending amendment offered by my friend and colleague from Oklahoma, 
Senator Coburn.
  I must oppose the Coburn amendment which will severely diminish the 
farm safety net for America's farmers and ranchers. I know that is not 
the intent of his amendment as he sees it but, unfortunately, that 
would be the practical effect, as the chairwoman has indicated.
  The setting of adjusted gross income caps or what we call AGI caps is 
a policy issue that should be handled by the authorizing committee, not 
during the appropriations process. More specifically, this issue is a 
farm bill issue, if you will, and it is currently being considered in 
the context of the Joint Debt Committee process--the supercommittee. 
The chairwoman has described in detail our efforts, both the House 
principals and the chairwoman and myself, in submitting to the Joint 
Debt Committee our suggestions on how we can meet our deficit reduction 
responsibilities.
  As people consider this amendment, I think it is important to 
remember that the 2008 farm bill, as the chairwoman has indicated, 
included the most comprehensive and far-reaching reform to farm program 
eligibility requirements in 20 years. That included reform to the AGI 
caps to which the Coburn amendment refers.
  It is also important for my colleagues to understand that the 
adjusted gross income for a farmer is not pure profit. Personal 
expenses and the servicing of debt must still be covered. Given the 
capital-intensive nature of farming and the cost of inputs such as land 
and machinery, servicing debt alone can cost hundreds of thousands of 
dollars.
  Supporters of these limits also tend to talk about how few farmers 
would be impacted by these caps. However, the advocates also only tend 
to look at those farmers who file Schedule F tax forms. This rather 
simplistic approach fails to reflect the fact that most operations that 
could be directly impacted by the AGI caps that they are recommending 
do not file Schedule F tax returns because of how they have chosen to 
organize their farming operation. Therefore, most advocates of these 
caps seriously underestimate the number of producers and the share of 
acres or production that would be left without a safety net.
  To make matters worse, because this limit would be implemented using 
the appropriations legislation instead of authorizing legislation, it 
would not repeal the already existing AGI limits of $750,000 per on-
farm income and $500,000 for off-farm income. In other words, this 
amendment would simply add another layer--another cap--another layer of 
bureaucracy to the already existing structure, further complicating 
USDA's work on this issue at a time when resources are extremely 
limited and when we are going to be in the process of writing a new 
farm bill, not to mention meeting our deficit obligations to the 
supercommittee.
  Therefore, I encourage my colleagues to oppose the Coburn amendment 
and allow the agriculture committees the opportunity to address this 
issue in the appropriate venue.
  I yield the floor.
  Careful observation by this Member would indicate that a quorum is 
not present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BLUNT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Amendment No. 741 Withdrawn

  Mr. BLUNT. Mr. President, I ask unanimous consent to withdraw McCain 
amendment No. 741.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  Amendments Nos. 763 and 764 En Bloc

  Mr. BLUNT. Mr. President, on behalf of Senator DeMint, I ask 
unanimous consent to set aside the pending amendment and offer 
amendments Nos. 763 and 764 en bloc.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Missouri [Mr. Blunt], for Mr. DeMint, 
     offers amendments numbered 763 and 764, en bloc.

  The amendments are as follows:


                           amendment no. 763

    (Purpose: To prohibit the use of funds to implement regulations 
regarding the removal of essential-use designation for epinephrine used 
               in oral pressurized metered-dose inhalers)

       At the appropriate place, insert the following:
       Sec. __.  None of the funds made available by this Act may 
     be used to implement the final rule entitled ``Use of Ozone-
     Depleting Substances; Removal of Essential-Use Designation 
     (Epinephrine)'' (73 Fed. Reg. 69532 (November 19, 2008)).


                           amendment no. 764

         (Purpose: To eliminate a certain increase in funding)

       At the appropriate place, insert the following:
       Sec. 7__.  Section 101(a)(2) of division A of the American 
     Recovery and Reinvestment Act of 2009 (Public Law 111-5; 123 
     Stat. 120; 124 Stat. 2394; 124 Stat. 3265) is amended by 
     striking ``after October 31, 2013'' and inserting ``on the 
     date of enactment of the Agriculture, Rural Development, Food 
     and Drug Administration, and Related Agencies Appropriations 
     Act, 2012''.

  Mr. BLUNT. With that, it appears that there is not a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 753

  Mr. LEAHY. Mr. President, I wish to speak to amendment No. 753 to 
H.R. 2112 by the distinguished Senator from New Hampshire, Senator 
Ayotte. This amendment would tie the hands of our national security and 
law enforcement officers in their efforts to secure our national 
security.
  I am surprised that this amendment is being offered at this time. 
Just a week ago, we learned of the foiled assassination attempt in the 
United States of the Saudi Ambassador to the United States. This case 
involved the Department of Justice, the FBI, and the DEA in a 
coordinated effort to prevent an act of terrorism on U.S. soil. I 
commend the agencies involved in the investigation. I was also pleased 
to see that, in this instance, members of Congress did not re-engage in 
armchair quarterbacking over whether the suspect should be transferred 
to military custody or sent to Guantanamo.
  Nearly two years ago, when a terrorist attempted to blow up an 
airplane on Christmas Day, some politicians used the occasion to 
criticize the Attorney General after the suspect was arrested. They 
made all kinds of claims about the risks of trying him in a Federal 
court, none of which came true. In fact, after obtaining useful 
intelligence from the suspect, that case proceeded without incident in 
Federal court where, last Wednesday, the defendant pleaded guilty. He 
now faces a potential life sentence. That successful prosecution adds 
to the more than 440 terrorism-related convictions since September 11, 
2001.

[[Page S6752]]

  Over the last two and one half years, the President and his national 
security team have done a tremendous job protecting America and taking 
the fight to our enemies. Earlier this year, the President ordered a 
successful strike against Osama bin Laden and has stayed focused on 
destroying al Qaeda from his first days in office. Last month, the 
administration was also able to locate Anwar al Awlaki, a terrorist 
operative in Yemen who was recruiting Americans to attack within the 
United States. During the past two and one half years, the President 
and his national security team have developed a counterterrorism 
framework that has protected the American people while taking on al 
Qaeda and its affiliates. As the President's assistant for Homeland 
Security and Counterterrorism John Brennan noted last month: ``[T]he 
results . . . under this approach are undeniable.'' Al Qaeda has been 
``severely crippled'' and the death of Osama bin Laden was a 
``strategic milestone'' in that effort.
  We must remain vigilant, but no one can deny the progress that has 
been made. As Mr. Brennan emphasized, the approach is ``a practical, 
flexible, result-driven approach to counter terrorism that is 
consistent with our laws, and in line with the very values upon which 
this nation was founded.'' He noted: ``Where terrorists offer 
injustice, disorder, and destruction, the United States and its allies 
stand for freedom, fairness, equality, and hope.''
  The Judiciary Committee has held several hearings on the issue of how 
to best handle terrorism suspects. Experts and judges from across the 
political spectrum have agreed that our courts and our criminal justice 
system can play a role in this challenge, and indeed has been 
effectively involved many times already.
  As a former prosecutor, I have absolute faith in the abilities of our 
Federal courts, prosecutors, and law enforcement to bring terrorists to 
justice. The Executive Branch must have all options available in 
handling terrorism cases, including the ability to prosecute terrorists 
in Federal criminal courts.
  I find it deeply troubling that the Senate would prohibit the 
administration from trying terrorists in our Federal courts. While 
there may be a place for military commissions in our overall approach 
to dealing with terrorism suspects, they remain mostly an unproven 
tool. The federal courts have dramatically more experience with 
handling these types of cases and have a proven track record of 
success.
  There have been only six convictions in military commissions since 
September 11. Of the six convictions, five resulted from plea bargains. 
On average, the sentences given to those six defendants convicted in 
military commissions have been far shorter than the sentences handed 
down in Federal criminal courts. There have been more than 443 
terrorism-related convictions in Federal courts since September 11, 
2001, including at least 78 convictions during the Obama 
administration.
  This amendment would deprive Federal law enforcement of a critical 
tool in bringing terrorists to justice. It usurps the Attorney 
General's constitutional responsibilities.
  This body does not hold the responsibility of prosecuting any one. We 
are not the ones who go to court. We are not the ones who bring cases 
before a jury. The executive branch should make those choices, and it 
has done a very good job in winning convictions.
  It would not be responsible for us to try to second-guess the system 
and tell a prosecutor what they should do in future cases. We would 
never do this to a State prosecutor. Why would we do this to our 
Federal prosecutors who are so well equipped to handle these cases?
  We have spent over 200 years developing our criminal justice system, 
and we have spent over 200 years developing our courts and our Federal 
prosecution processes. No one should try to pass an amendment that will 
overturn that. This is not the path forward. I urge all Senators to 
oppose this amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Begich). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 836 to Amendment No. 738

  Mr. LAUTENBERG. Mr. President, I ask unanimous consent to temporarily 
set aside the pending amendment and call up my amendment No. 836.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg], for himself, 
     Mr. Sanders, Mr. Menendez, and Mrs. Gillibrand, proposes an 
     amendment numbered 836 to amendment No. 738.

  The amendment is as follows:

    (Purpose: To provide adequate funding for Economic Development 
  Administration disaster relief grants pursuant to the agreement on 
  disaster relief funding included in the Budget Control Act of 2011)

       On page 88, between lines 8 and 9, insert the following:

     For an additional amount for ``Economic Development 
     Assistance Programs'' for expenses related to disaster 
     relief, long-term recovery, and restoration of infrastructure 
     in areas that received a major disaster designation in 2011 
     pursuant to the Robert T. Stafford Disaster Relief and 
     Emergency Assistance Act (42 U.S.C. 5122(2)), $365,000,000, 
     to remain available until expended: Provided, That such 
     amount is designated by Congress as being for disaster relief 
     pursuant to section 251(b)(2)(D) of the Balanced Budget and 
     Emergency Deficit Control Act of 1985 (Public Law 99-177), as 
     amended.

  Mr. LAUTENBERG. Mr. President, this amendment would increase funding 
for disaster relief grants at the Economic Development Administration.
  We all know that this has been a record year for natural disasters. 
Our country has already experienced a record 10 natural disasters that 
cost more than $1 billion each time. Hurricane Irene alone caused more 
than $7 billion in damages on the East Coast. In my home State of New 
Jersey, 11 people lost their lives as a result of the hurricane.
  While President Obama came to my hometown of Paterson, NJ, to see the 
damage firsthand, I must point out that we are still, almost across the 
country, in the wake of huge storms that demand attention and will 
require substantial funding.
  In my hometown of Paterson, NJ, we witnessed unforgettable images. 
The streets and sidewalks were covered in mud. In some homes, the 
second floor was also covered with mud.
  But New Jersey is not alone. As I said, there have been extremely 
severe storms across the country, and flooding and tornadoes have 
devastated the Midwest and the South. As a result, FEMA has declared 
Federal disasters in all but two States this year. In the wake of these 
disasters, we have seen the American people pulling together, neighbor 
helping neighbor to put their lives back together; furniture out on the 
lawn; memorabilia that was so water soaked that it is valueless in 
terms of recalling memories.
  It is painful to witness. When you see families standing together 
holding hands, wondering what is going to happen to them, we look to 
our country and they say help us recover from this disaster. Perhaps we 
will never quite get over it, but we can use the help desperately.
  The Federal Government has to do its part, and I am pleased the 
Commerce, Justice, and Science bill we are considering includes 
emergency funding for disaster relief grants at the Economic 
Development Administration. I thank Senator Mikulski for her good work 
as chairman on this bill, but the needs all across the country are 
overwhelming and more disaster assistance is needed.
  This amendment increases the funding for EDA disaster relief grants 
by $365 million to a total of $500 million of availability. I point out 
that many of these disasters themselves have $1 billion worth of 
damage. My amendment is cosponsored by Senator Sanders, Menendez, 
Gillibrand, Blumenthal, and Leahy, and I thank them for their support. 
Any area that received a Federal disaster declaration this year would 
be eligible to compete for this disaster relief, including areas in 48 
States so far this year. I want to be clear. Natural disasters 
devastate local economies, causing damages that can linger for years. 
FEMA reimburses local governments' homeowners for repairs in the 
immediate aftermath of a storm, but EDA grants are needed to

[[Page S6753]]

help communities get back on track for recovery and economic 
revitalization in the wake of a major disaster. Communities use these 
disaster relief funds to repair damaged public infrastructure, such as 
sewer and drinking water systems, and States use the EDA grants to 
create and coordinate efficient disaster response and recovery plans.
  Additionally, local governments and nonprofits can lend EDA disaster 
relief funds to businesses to help our private sector to rebuild and to 
grow. Congress has recognized the value of this program in the past. 
During the past 5 years, we have provided more than $550 million in EDA 
emergency disaster relief funds. This includes $500 million in 
emergency supplemental funding for EDA in 2008 to respond to the 
hurricanes that devastated the South and the heavy rains that caused 
massive flooding throughout the Midwest.
  When these areas were in need, Congress came together and extended a 
helping hand. Unfortunately, we have to do so again now. The funding in 
my amendment complies with the disaster relief provisions included in 
the Budget Control Act and is not offset with cuts from other programs 
in the bill. When disaster strikes, victims don't want us to reach for 
the budget ax, they want us to help them rebuild and recover.
  We all recognize our country faces serious fiscal challenges, but we 
cannot put a price on human lives. Nothing is more important than 
protecting our communities, our families, and our economy. Hurricane 
Irene and many other natural disasters hit our country this year, 
causing widespread damage that is going to require a massive rebuilding 
effort. The American people are looking to us, to the Federal 
Government, to lend a helping hand.
  I point again to the picture of what a disaster such as this can do, 
where water is virtually up to the second floors, and this was repeated 
across the State of New Jersey and in many other States as a result of 
hurricane Irene.
  With that, I urge my colleagues to support this amendment. Although 
there are squabbles about funding for various programs, at no time is 
the help more urgently needed than now--again, right after these storms 
have hit, leaving terrible devastation and people urging and pleading 
with us to give them the help. I urge my colleagues to support the 
amendment.
  With that, 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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, we have worked long and hard this whole week 
trying to move forward on the legislation dealing with our 
appropriations bills. It has been difficult, and one reason it has been 
difficult is this is kind of a new area we are working in; that is, 
legislating. I was very impressed to see Senator Mikulski talk with 
great clarity about how nice it was for her to again be legislating.
  But we are not there yet. We were hoping to have a number of votes 
today--tonight--but we haven't been able to do that. We are getting 
close. Our staffs are working very hard to come up with an agreement we 
hope we can do tonight, to set up a series of four to six votes in the 
morning and then, hopefully, a pathway to completing this legislation.
  We have other issues. Always we have to do more than one thing at a 
time. So we will move forward, the Republican leader and I, on filing a 
couple of cloture motions that we are going to set up for votes either 
Friday or hopefully we can get them done tomorrow.
  Mr. McCONNELL. If I can make just a couple remarks.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. We do have a number of amendments pending, and we are 
working our way in the direction of getting back to a normal process. I 
share the majority leader's hope and his view that we will have a 
number of votes, hopefully tomorrow, as a result of an agreement we are 
working on.

                          ____________________