[Congressional Record Volume 157, Number 158 (Thursday, October 20, 2011)]
[Senate]
[Pages S6812-S6819]
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

  Mr. THUNE. Madam President, I ask unanimous consent that I be allowed 
to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Withholding Tax Relief Act

  Mr. THUNE. Madam President, I rise in support of S. 1726, the 
Withholding Tax Relief Act of 2011. I know we are currently debating 
several appropriations bills which we hope to be concluded sometime 
later today. But in that process, my expectation is that we are going 
to get an opportunity to vote on a couple of amendments that deal with 
the real issue I think that is on the minds of most Americans today, 
that is, jobs and the economy.
  The bill I referenced, S. 1726, is identical to the measure that was 
introduced earlier this year by Senators Scott Brown and Olympia Snowe 
and of which I and 28 of my colleagues on both sides of the aisle are 
cosponsors. Given that we may get a chance to vote on this legislation, 
perhaps in the form of an amendment to the bill that we are currently 
on later today, I want to say a few words as to why I believe this 
represents the right approach to spurring our economy.
  I think there is a right approach and there is a wrong approach to 
getting people back to work in this country and getting the economy 
growing and expanding again. American businesses need access to 
capital. They need to be able to deploy their existing capital as 
efficiently and effectively as possible.
  If we do not act, come January 1, 2013, 3 percent of contracts 
between private businesses and Federal, State, and local governments 
will be withheld. This means that dollars that could be reinvested by 
businesses in new equipment or new employees will instead be used 
essentially to give the IRS an interest-free loan.
  The Joint Committee on Taxation estimates that permanently 
eliminating

[[Page S6813]]

this burdensome withholding requirement will allow taxpayers to keep an 
additional $11.2 billion over the next 10 years. While 3 percent of a 
contract may not seem like a large amount, consider that for many 
businesses 3 percent could be their entire profit margin. In effect, 
the withholding requirement--if we allow it to take effect--will result 
in a large transfer of funds from local economies all across this 
country to the Internal Revenue Service.
  Imposing this new wealth transfer makes absolutely no sense while our 
economy remains very fragile. The good news is that there is broad 
bipartisan support for repealing the 3-percent withholding requirement. 
The Obama administration's Office of Management and Budget last month 
released the President's jobs plan entitled ``Living Within Our Means 
and Investing in the Future.'' On page 8 of this document it reads: 
``The President's plan calls for the Congress to remove burdensome 
withholding requirements that keep capital out of the hands of job 
creators.'' I could not agree more. Unfortunately, the details of the 
President's plan, as introduced by Majority Leader Reid only provides a 
1-year delay in implementation of the withholding provision.
  American businesses need more than a 1-year delay. They need 
certainty. This is the reason that a long list of businesses and trade 
job groups support this legislation. In fact, the documents prepared 
last week by the House Ways and Means Committee lists 170 businesses 
and groups supporting repeal of the 3-percent withholding requirement. 
This diverse list includes groups such as the American Farm Bureau, the 
American Bankers Association, the Associated Builders and Contractors, 
the American Gas Association, the American Ambulance Association, to 
name a few.
  It should be no surprise that this bill also enjoys broad bipartisan 
support. The House version of the bill, likely to be voted on next 
week, has 269 cosponsors, 62 of whom are Democrats. In the Senate bill, 
there are a number of both Republican and Democratic cosponsors.
  The bill is fully offset by rescinding unobligated discretionary 
funds. This is the same offset we voted on in February when Senator 
Stabenow proposed it to pay for repeal of the 1099 reporting 
requirement. That vote passed by 81 to 17, with 34 Democrats voting 
aye.
  To summarize, we have a bill before us we will soon vote on that will 
allow businesses to keep more of their own funds rather than sending 
them in advance to the IRS, that has broad bipartisan support, that is 
fully offset using an offset that is supported by a majority of both 
Republicans and Democrats in this Chamber. So why would we not want to 
enact this legislation as soon as possible?
  I would note that this approach stands in stark contrast to the 
ministimulus bill that is being proposed by the majority leader. The 
Reid bill goes in exactly the opposite direction. It would raise taxes 
on the private sector to pay for new spending on the public sector. 
Let's think about that for a minute. We all agree that the private 
sector creates the vast majority of jobs in this country. And since the 
beginning of the recession, there has been a decline of 5.4 percent of 
private sector jobs, or 6.2 million jobs lost. However, during that 
period, government jobs at all levels declined by less than 2 percent 
and Federal Government jobs increased by over 2 percent, or by 63,000 
jobs.
  So the Federal Government is getting larger at the same time the 
private economy is shedding jobs.
  While we all want to find ways to help public sector employees, let 
me suggest that we need to do it without imposing new burdens on the 
private sector at a time when we should be focused on finding ways to 
promote private sector job creation.
  The Withholding Tax Relief Act will do just that. This measure will 
promote job creation by allowing businesses to keep more of their 
capital, and it will send a message that Washington understands that 
promoting the private sector is the key to reviving our economy, not 
another government bailout.
  Only 8 days ago, we voted in favor of the three pending free-trade 
agreements, votes that garnered broad bipartisan support, which we all 
agreed will stimulate the economy and grow jobs in this country. During 
my remarks as part of that debate on those agreements, I noted that we 
were setting a precedent I hoped would be able to continue in the 
coming weeks. I noted that instead of considering divisive and 
controversial measures, such as the President's new surtax on small 
businesses and job creators, we should be considering legislation that 
helps our economy and can actually become law because it has strong 
bipartisan support.
  That was true of implementing legislation for the three free-trade 
agreements that the President will sign into law tomorrow, and it is 
true in the Withholding Tax Relief Act of 2011.
  Let's take this opportunity to demonstrate that when we are willing 
to work together, we can enact legislation that will help spur economic 
activity and create jobs in the private sector economy. We can do this 
without new taxes and without new burdensome regulations. We can 
accomplish this simply by getting the government out of the way of 
American entrepreneurs. Let's help Americans in a free and open society 
do what they do best: take risks, create business opportunities, and 
grow our economy.
  We don't need yet another stimulus bill, heavy with government 
spending; we need a little common sense. Passing the Withholding Tax 
Relief Act is a good place to start.
  When these votes come up later today, I hope my colleagues on both 
sides will recognize the importance of stimulating and spurring 
economic activity in the private sector, giving our entrepreneurs in 
this country incentives to create jobs by keeping the tax and 
regulatory burdens low and move away from this notion and idea that the 
way to get the economy growing again is to spend more government money, 
come up with yet another stimulus plan, which we know doesn't work. We 
have seen that picture before. We know many of these same types of 
ideas were tried and they have failed.
  Unemployment today is still over 9 percent. When the first stimulus 
bill was passed, the contention at the time was this would keep 
unemployment under 8 percent. Well, the opposite has happened. More 
people are unemployed since the stimulus bill passed. There are over 
1.5 million more unemployed Americans than when it passed. We should 
recognize that those are not the correct for our economy. It is to get 
our entrepreneurs, our small businesses back out there investing their 
capital, buying new equipment, and creating jobs for American workers.
  The way to do that is to make it less costly, cheaper, and easier for 
them to create jobs rather than harder. What has been happening in 
Washington lately is making it harder, not easier, because of the 
uncertainty created by tax policy and regulatory policy. Putting in 
place another withholding tax, having that to plan for, knowing that 
will take effect come 2013, and now layered on top of those other 
things--you have the new health care mandates, and many small 
businesses are saying they are not going to hire people until they know 
with greater certainty what the impact of the health care reform bill 
will be on them and their employees.
  This is a clear winner, something that enjoys broad bipartisan 
support. The way it is paid for enjoys broad bipartisan support. I hope 
we will pass it and defeat what is the ill-conceived approach proposed 
by the majority leader, which is to try to put a tax on job creators, 
the people who are out there and have the capital to put people back to 
work, and to invest in more government spending, more government 
programs, all of which have proven that they don't work. Let's do what 
works and use a little common sense and get the American people working 
again.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, as we continue to debate the three fiscal 
year 2012 appropriations bills, I want to take a moment to congratulate 
the managers of these individual measures, and to urge my colleagues to 
continue in the current bipartisan spirit as we seek to move additional 
bills in the coming weeks. Building on the progress we have made this 
week would make it

[[Page S6814]]

less likely that we will be forced to resort to an omnibus or year-long 
continuing resolution down the road.
  The bills we are considering are both bipartisan and fiscally 
responsible. Senators Kohl and Blunt worked together to produce an 
Agriculture bill that is $2.2 billion below the President's request and 
$141 million below the fiscal year 2011 enacted level. Senator Mikulski 
and Senator Hutchison have managed a Commerce-Justice-Science bill that 
is $5 billion below the President's request and $631 million below the 
fiscal year 2012 enacted level. Senator Murray and Senator Collins have 
crafted a Transportation, Housing bill that is $677 million below the 
President's request and $117 million below last year's level.
  As noted by the leadership of the respective subcommittees, all three 
of these measures were approved by the full committee with overwhelming 
bipartisan support. These measures reflect the austere fiscal 
environment we face. They are consistent with the framework established 
by the Budget Control Act, which establishes a discretionary spending 
level that is $7 billion below last year's level.
  All of these bills present difficult choices. These bills are focused 
on a number of basic priorities: job creation, public safety, 
nutrition, housing, and transportation. Yet, despite the importance of 
these initiatives to the lives of every American, many worthy programs 
were either reduced or eliminated to meet our austere limits.
  Some have argued that our national debt demands even further cuts in 
these vital areas. However, every credible nonpartisan analysis has 
concluded that any real solution to our fiscal problems lies with 
reforming mandatory programs and raising additional revenues, not 
cutting investments in roads, bridges, and public safety any further. 
But to date, the entire focus on deficit reduction has been on 
discretionary spending. Those who advocate further cuts must look 
elsewhere, even if it is more politically painful to do so. It is my 
firm belief that another round of ill-advised cuts to discretionary 
spending will quite simply put our Nation's security and economic 
future at risk.
  In addition to the managers of these three bills, I thank the leaders 
on both sides of the aisle for their support in bringing these measures 
to the floor this week. As the House has not acted on the Commerce-
Justice-Science or Transportation appropriations bills, the package we 
consider today is a creative bipartisan solution that enables all 
Senators an opportunity to offer amendments.
  As always, the closer we get to regular order, the better our final 
legislative product will be. It is important that the Senate have an 
opportunity to debate these three measures and to focus on the matters 
that are germane to the bill.
  When we complete action on this bill, there will be seven outstanding 
committee-reported Senate appropriations bills. It is my hope and my 
intention to move forward with additional appropriations measures when 
the Senate returns in November and demonstrate to the American people 
that Congress is able to complete its work in a responsible manner.

  Once again, I commend the chairmen and the ranking members and their 
staffs for their fine work on this measure.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Madam President, I want to take a minute to say I am 
pleased that one of my amendments to eliminate the categorical 
eligibility for food stamps concept has been called up.
  I also look forward to calling up an amendment that's been referred 
to as the Medco amendment, which has real strong bipartisan support. It 
was an amendment that many people felt they needed to vote against when 
the patent bill came forward because they believed the bill would then 
be required to go back to the House. So, it failed on a 51-to-47 vote.
  But I am confident that there is an overwhelming number who would 
prefer to vote for this amendment now, if we can get it accepted. It 
would not take a long time for us to consider it. I think it's an issue 
our members are familiar with. So I want to share my thoughts that it 
is very important to me, and I think perhaps it might have a majority 
vote on both sides of the aisle.
  Basically, my amendment would say we want to prohibit the PTO from 
using any funds to implement a provision of the patent reform bill that 
would have the effect of deciding an ongoing civil litigation that is 
on appeal now to the court of appeals. The merits of the matter are 
being argued. I believe it is the kind of matter that clearly should be 
allowed to stand in the courts. But this law firm that apparently 
failed to follow the statute of limitations--and the courts ruled in 
their favor--is seeking to have the Congress overrule or shortcut the 
appellate process in this matter.
  I wanted to say I look forward to debating the question of 
categorical eligibility for food stamps, where if you are approved for 
a number of other Federal programs, you don't have to make a formal 
application to qualify for food stamps. CBO has indicated that it could 
save as much as $10 billion over 10 years if that hole in the program 
is closed.
  And I would note that food stamps are the fastest growing major item 
in the budget by far. There is nothing close to it. It has doubled in 
the last 3 years. It has gone from $20 billion to $80 billion in the 
last 4 years, a 400-percent increase. One in seven people are now 
receiving food stamps. Originally, it was 1 in 50 when the program 
started. Nobody wants to deny people food, but the program has not been 
looked at. We have not looked under the hood. I believe in this one 
reform that says if you want to get thousands of dollars in food 
benefits from the government, you ought to at least fill out a form and 
qualify according to the standards the Food and Nutrition Service sets. 
That is basically all it would do. Some of the programs, if you qualify 
for them, are now automatically accepting food stamp recipients. They 
have a lower qualification than food stamps do. For example, one person 
won the lottery and that was counted as an asset to the person rather 
than income to the person. He called and said: Do I still get food 
stamps, since I won a $2 million lottery? They said: Yes, the money you 
received is an asset, and we don't count assets under this other 
mechanism. But they should count assets under the Food Stamp Program.

  I thank the Chair, and I thank the Senator from Delaware, who is 
moving the bill and allowing me to share these thoughts. I do hope we 
can get agreement and move forward on the Medco amendment, along with 
the categorical food stamp amendment.
  Ms. MIKULSKI. I would say to my colleague from Alabama, I am the 
Senator from Maryland.
  Mr. SESSIONS. Excuse me.
  Ms. MIKULSKI. But Delaware is next door, and we share the Chesapeake 
Bay and a whole lot of chicken farms, so that is OK.
  I want to advise the Senator that his amendment 810 is pending, and I 
believe the leadership is negotiating on which group of amendments will 
be voted on in the next phase, which we hope we will be able to 
announce shortly.
  The amendment which the Senator has on the Patent Office, is not a 
pending amendment. Again, that would be subject to leadership on both 
sides of the aisle determining what would be called up. So I suggest he 
stay in touch with the Republican leader, Senator McConnell, and his 
floor staff, as they are talking with Senator Reid. But the Senator's 
amendment 810 is pending and I know he debated it yesterday and I know 
our colleague from Michigan, Senator Stabenow, chair of the Agriculture 
Committee, commented on that.
  I would just say to the Senator, because I believe him to be a 
compassionate conservative--a phrase we once used a decade ago--maybe 
not filing papers is one thing, but we do have 9 percent unemployment. 
Gosh, in my State, we are seeing people come to food banks who used to 
donate to the food banks. We are seeing an increase of people who have 
been laid off who either have no job or have taken now

[[Page S6815]]

part-time jobs. So one of the reasons the food stamp population is 
increasing is because of unemployment. Unemployment is increasing.
  I look forward to working with the Senator on a bipartisan jobs bill, 
but we also want the Senator to be able to speak to his amendment; and, 
hopefully, because it is pending, it will be included in the voting.
  Mr. SESSIONS. I thank the Chair. She is correct. She has allowed the 
food stamp amendment to be pending, and I am talking with staff on this 
side and the Senator from Maryland is not objecting at this point to 
that amendment. So I hope that will happen.
  I just wished to emphasize that there are a number of Members who 
feel very strongly that this is a matter we have an opportunity now to 
fix; that is, we shouldn't be moving forward to intervene in an ongoing 
lawsuit. Under our rules, there is a way to get a special relief act, 
if somehow there is a miscarriage of justice that occurs in our 
American system--an individual special relief act. But it has certain 
procedures, and one of the key prerequisites of that is that your 
litigation must be exhausted. Then, if the courts can't give you 
relief, we might consider it under certain procedures.
  So this litigation is ongoing, and that is why I am hopeful we can 
fix it.
  Ms. MIKULSKI. Are we still talking about food stamps?
  Mr. SESSIONS. No, I am talking----
  Ms. MIKULSKI. I kind of got lost here.
  Mr. SESSIONS. No, the Medco amendment. It was voted on in the House 
twice, and on the second vote the amendment passed by a narrow margin. 
Our Members did not want to amend the House bill, even though many 
opposed that particular amendment. So this would give us an opportunity 
to vote on it, and it would be germane.
  Ms. MIKULSKI. I remember that very well. I remember it was enormously 
controversial. It was significantly confusing, and there was much to be 
said on both sides. I believe somebody missed a filing deadline by 24 
hours.
  Mr. SESSIONS. I think that is basically correct.
  Ms. MIKULSKI. You were the Chair of the Judiciary Committee, so you 
are well versed on the patent issues. Why don't we turn it over to the 
leadership and see how it turns out.
  Mr. SESSIONS. Fair enough. I just wanted, for the record, to indicate 
I was urging our leadership to make this matter pending.
  I thank the Senator.
  Ms. MIKULSKI. We will turn it over to that higher power.
  I suggest 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 Maine.
  Ms. COLLINS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Madam President, at some point during consideration of 
the Transportation, Housing and Urban Development, and related agencies 
appropriations bill, I expect there may be a motion to recommit the 
bill to the Appropriations Committee. Therefore, I want to take this 
opportunity, as we are attempting to work out amendments and proceed to 
some additional votes, to give my colleagues some basic facts about our 
bill.
  First of all, our appropriations bill took one of the largest 
percentage cuts to spending of any of the appropriations bills for 
fiscal year 2011. It is important to understand that our bill is nearly 
$13 billion below fiscal year 2010 enacted levels. This funding level 
represents a reduction of nearly one-fifth in just 2 years. When 
disaster funding is not included, our bill total is $55 billion. That 
is $117 million below fiscal year 2011.
  So I want to point out that this bill is a fiscally responsible bill. 
It is a bill that required a lot of tough choices. It is a bill that 
does not fund some programs to the level I would have liked to have 
seen them funded, but it recognizes the reality of a $14.9 trillion 
Federal debt that is growing every day. Therefore, we have had to make 
tough choices. We cannot have the luxury of fully funding every 
program, even those programs that are very beneficial.
  In the other cases, we put tough new restrictions on programs where 
we felt the taxpayers have not been getting their money's worth, and 
that includes some programs run by public housing authorities and the 
HOME Program, about which the Washington Post did an expose'. So we 
have worked carefully and closely with the inspector general of the 
Department of Housing and Urban Development to make sure there are new 
anti-fraud provisions and restrictions.
  It is also important to understand that the $117 million difference 
from fiscal year 2011 does not take into account the $3.9 billion in 
one-time rescissions taken in fiscal year 2011 that were not available 
in fiscal year 2012. So when you compare the appropriations for 
programs spending, not including the offsets, our bill's appropriations 
are actually $1.1 billion below the fiscal year 2011 enacted levels.
  I have just given a great deal of different numbers, but my point is 
the same; that is, this is a fiscally responsible bill, it is a 
constrained bill. Our subcommittee's allocation was cut quite severely; 
thus, it was a real challenge, but it is a challenge we have to meet in 
these very difficult budget times. We don't have the luxury of fully 
funding even very worthwhile programs.
  It has been a great pleasure to work with my colleague, Senator 
Murray, to produce a bipartisan bill, and that is what we have done. 
But, again, our Transportation-HUD bill took one of the largest 
percentage cuts in spending of any of the appropriations bills that 
will be brought before this body.
  Finally, I am very pleased we are bringing the appropriations bills 
to the Senate floor. None of us, in my opinion, want to see the 
problems we have had in the past couple of years where we have ended up 
at the end of the calendar year with a huge omnibus bill stacked on our 
desks, no one completely sure of every provision that is in the bill. 
That is a terrible way to legislate. It is much more responsible to 
bring the appropriations bills before the full Senate after they have 
had their careful consideration by the Appropriations Committee. We 
have extensive hearings and we have markups at both the subcommittee 
and the full committee level, but then the full Senate should have a 
chance to work its will on these bills.
  I am pleased we have been considering these bills all week. We have 
had several amendments offered by Members on both side of the aisle, 
and we have had constructive debate. As my colleague from Maryland has 
pointed out, it has been a respectful, civil debate, and that is what 
the people of this country deserve.
  I hope this is going to set a precedent where we will bring every 
single one of the appropriations bills before this body so that Members 
can work their will. It is the right way to legislate, and it avoids 
the spectacle of our having a multiple thousands of pages omnibus bill, 
which does not serve the people of this country well.
  Madam President, I suggest 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 (Mr. Cardin). The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the quorum 
call be rescinded, and I ask to speak as if in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


             Teachers and First Responders Back to Work Act

  Ms. KLOBUCHAR. Mr. President, I rise today to speak in support of the 
Teachers and First Responders Back to Work Act.
  Rarely is our economy discussed without mention of the more than 14 
million Americans who are currently out of work and searching for jobs, 
but this statistic is really only the beginning of the story.
  Two years after the recession officially ended or at least was at a 
place of stability, unemployment remains stubbornly high at 9.1 
percent. When you factor those who are working part time because they 
can't find a full-time job and those who have stopped working 
altogether, that number

[[Page S6816]]

quickly climbs. In my home State, it is 2 points better, at 6.9 
percent, but there are still too many people out of work.

  It is my firm belief that the role of Congress is to promote the 
interests of the American people, and the American people have said 
loud and clear that we need to focus on initiatives that are about 
jobs, private sector jobs, jobs that pay people so they can support 
their families, jobs that strengthen our economy.
  At a time when enormous budget shortfalls plague our States, many 
States have been forced to make tough choices, including cutting the 
jobs of those individuals on our front lines, law enforcement and 
educators.
  In Minnesota, we have seen more than our fair share of crises in 
recent years, but we have also seen the value of effective emergency 
response. We all witnessed the critical work of public safety personnel 
during the minutes and hours following the 2007 bridge collapse in 
Minneapolis. That was just a few blocks from my house. During that 
emergency, the Minnesota first responders reacted swiftly and 
effectively, and they were aided by a strong local public safety 
network. What we saw that day was a true show of American heroism, a 
window into the courage, skill, and selflessness first responders 
practice day in and day out. They did not run away from this major 
bridge collapse--an eight-lane highway in the middle of the Mississippi 
River--they ran toward it. They dove in and out of that water, rescuing 
people from dozens of cars in that water. Thanks to their selfless 
efforts, while we lost too many lives, literally hundreds were saved 
because of that work. These men and women dedicate their lives to 
protecting our families, supporting our children, and serving the 
public. They perform critical jobs in our communities, jobs we cannot 
afford to lose.
  I saw it again in Wadena, MN, a smaller town than Minneapolis, up in 
northern Minnesota. They had a tornado there that literally flattened a 
mile of their town. I was standing there in complete wreckage, a big 
high school where the bleachers were a block away, where there was 
nothing left of a public swimming pool. But not one person died in that 
town even though this was in a completely residential neighborhood. Do 
you know why? They got their siren out early. The teenage lifeguard at 
that pool, which had a dozen kids, got their parents there within 10 or 
15 minutes, and she got the remaining kids in the basement across the 
street.
  When I visited that town a few days later, I hugged a man whose 
entire agricultural business had been flattened. He saved his employees 
in a safe. He had always joked that since he didn't have a basement, 
they could go in the safe. That is what I remember.
  What I remember most is the mayor and the sheriff and how people--
despite being blocked from their houses, having their houses completely 
flattened, losing everything they owned in the world, all they could do 
was hug those public officials and cry because they knew the planning 
they had put in place and the acts of the sheriff and the police and 
the emergency system had saved their lives. That is first responders at 
their best. That is public servants at their best.
  That is why we need to pass the Teachers and First Responders Back to 
Work Act, which would support the hiring, rehiring, and retention of 
career law enforcement officers and first responders. I know State and 
local budget cuts have forced thousands of police officers and 
firefighters off the beat. This bill provides $5 billion to keep police 
and firefighters on the job by creating or saving thousands of first 
responder jobs across the Nation through competitive grants to State 
and local governments.
  The Teachers and First Responders Back to Work Act also saves or 
creates jobs through critical investments in education. A good 
education should be the basic right of every child. I know you know 
that in Maryland, Mr. President, as I know it in Minnesota. It is one 
of the very best investments we can make in our future as a nation.
  My mom taught second grade until she was 70 years old. She had 30 
second graders in her public school class. We lost her last summer, but 
what I will never forget is all of those students, who are now grown 
up, who came to the visitation, came to the funeral, and told me all 
those stories.
  I always knew my mom had dressed up as a monarch butterfly when they 
had the unit on metamorphosis. She would wear a butterfly outfit, and 
she would hold a sign that said ``To Mexico or bust.'' What I did not 
know was that she would go to that local grocery store, Cub Foods, and 
shop. When I first heard that story, I thought that was pretty funny 
and something that she would do. But what I finally realized was why 
she went to that store. Because I met the parents of this young man who 
had taken her class in the second grade. He had some pretty difficult 
disabilities. He went on and graduated from high school, and his job 
was to bag groceries at that store. She would go back every year to see 
that kid in her butterfly outfit so that he would remember that class. 
That is a public servant. That is what teaching is all about. It is 
something bigger than yourself.
  Given the enormous budget shortfalls across the Nation, States and 
local school districts have been forced to cut back on education 
programs and services, often laying off needed teachers and other 
critical staff or raising additional revenue to cover the shortfall. As 
a result, two-thirds of States were forced to slash funding for K-12 
education programs and services and are now providing less per-student 
funding than they did in 2008, and 17 States have slashed funding by at 
least 10 percent since 2008. In my State alone, since 2008 we have lost 
1,200 education jobs.
  Cuts such as these hurt our children, but they hurt our communities 
too. We have to compete on an international stage. We are going up 
against countries that are actually upping their education funding, 
countries that are making sure their kids are learning incredibly 
difficult concepts in science and math and technology. We are not going 
to be able to accomplish that if they don't have schools they can learn 
in that work, if they don't have teachers with the expertise who can 
teach them these difficult ideas. That is why we need to pass the 
Teachers and First Responders Back to Work Act, which would offset 
projected layoffs, providing for nearly 400,000 education jobs and 
offering a much needed jolt to State economies.
  It would also provide funding to support State and local efforts to 
retain, hire, and rehire early childhood, elementary, and secondary 
school teachers. It is a time when we recognize that educating our 
children is a shared responsibility.
  Americans overwhelmingly support funding for teacher and first 
responder jobs. One poll showed that 75 percent of Americans support 
providing funds to hire police officers, teachers, and fire fighters.
  But passing this bill is not right to do just because it is popular. 
It is right to do because it will have a positive impact on our 
children. As we know, we pay for this bill, and we pay for this bill in 
a way that shares the responsibility with those who can afford it the 
most.
  This bill will move our economy forward without adding to the Federal 
deficit. With our economy struggling and 14 million Americans still out 
of work, the people in my State want Congress to put the politics aside 
and come together to move our economy forward and ensure that our 
communities stay strong and that our children remain safe. That is what 
they want.
  It is time to step up and show some leadership. I believe we need to 
bring this debt down. I am one who believes we need to bring it down by 
$4 trillion in 10 years, and I believe there is a way to do it with a 
balanced approach that doesn't do it on the backs of these kids in 
school and that doesn't do it on the backs of our people who need 
protective services, who need our police, who need our firefighters. 
What would we have done when that 35W bridge collapsed if there had not 
been firefighters and police officers there ready to dive in and save 
people? What would we have done if there had not been emergency workers 
ready to take them in after they were injured? What would we have done 
in Medina if we did not have a proper public siren system in place? 
Hundreds of people would have been killed. What would we have done for 
that kid I talked about with disabilities if my mom had not been his 
teacher and cared about him and went back to visit him again and again?

[[Page S6817]]

  These are people who devote their lives to public service, and we 
have to show America that Washington is not broken; that, instead, we 
are willing to put the politics aside, we are willing to do something 
smart on the debt and bring it down to the place where we need to bring 
it, but we are going to do it with a balanced approach.
  I urge my colleagues to vote for this important legislation. It is 
the decent and right thing to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.


                           Amendment No. 859

  Mr. PORTMAN. Mr. President, I rise in support of amendment No. 859, 
which is a germane amendment to the underlying bill. It is one I 
introduced that would restore fairness, encourage competition, and 
prevent many States around the country from seeing cost increases in 
the price of guardrails. This amendment specifically addresses the 
Transportation bill we are talking about and addresses one of the new 
provisions in the bill this year that is a mandate that I think is not 
appropriate.
  A lot of States have infrastructure challenges right now, and the 
last thing we should be doing here in the Congress is making it more 
difficult for States to pay for their infrastructure with the limited 
transportation dollars they have. With the fiscal crisis we have, we 
have to make sure now more than ever that States have the flexibility 
to meet the requirements from the Federal Government.
  At a time when unemployment is over 9 percent and we have over 14 
million Americans out of work, we should be doing everything we can to 
protect jobs. This amendment would hurt jobs, and this amendment I am 
offering would give States more flexibility to help keep some jobs.
  There are countless miles of guardrails in our country, and many of 
those are manufactured in my home State of Ohio. Those manufacturers 
galvanize the guardrails to prevent corrosion, and they have two 
options on the process they use to galvanize the metal as well as two 
options with regard to the thickness of the zinc they use in the 
galvanization process.
  In terms of the galvanization process, the first method is called 
continuous galvanization, where a company treats the flat steel with 
zinc and then fabricates the guardrail afterward. The second method is 
called batch galvanization, where the company dips the final product in 
a zinc bath after they have completed the fabrication.
  In addition, there are two types of zinc thickness options for the 
guardrail. Type 1 requires a thinner coat of zinc, and type 2 requires 
a thicker coat of zinc, which increases the life of the guardrail. A 
lot of States around the country, including Ohio, require type 2, which 
is the thicker kind of zinc, for all of their guardrails, and that is 
due to the harsher conditions that cause metal to erode more quickly. 
However, Ohio is one of those States that, although they require type 
2, allow for continuous galvanization or the batch galvanization 
process--either one.
  It was a great surprise to me to read the legislation before us. The 
underlying bill says the States are prohibited from using any kind of 
guardrail unless it is type 2, plus it is produced through this batch 
galvanization process. So it is a mandate. Again, it has never been in 
this legislation before. It says it has to be type 2, meaning the 
thicker type zinc, and has to be applied using a particular process, so 
it is micromanaging the process.
  The life of a guardrail, as you can imagine, is entirely dependent on 
the thickness of the zinc but also on the environment into which it is 
placed.
  There are 15 States that still approve type 1. These States have less 
extreme environments where corrosion occurs more slowly, and the extra 
thickness of zinc is not needed. Without this amendment, they would be 
forced to buy a more expensive product that they don't want and don't 
need. By the way, those States are Mississippi, Virginia, Delaware, 
Oklahoma, Missouri, Kansas, Nebraska, Iowa, New Jersey, Colorado, Utah, 
Texas, California, Montana, and Wyoming.
  The U.S. Department of Transportation has weighed in on this issue. 
They have said:

       Requiring all galvanized steel to meet type 2 could add 
     unnecessary expense for many States where the added thickness 
     of galvanization is not needed. We know that type 1 
     galvanizing will protect guardrail components in many 
     locations for the typical 20-year life design. The extra cost 
     of type 2 galvanizing may be unwarranted.

  That is the U.S. Department of Transportation.
  The Ohio Department of Transportation has said that while they only 
use type 2 materials, ``ODOT does not have a preference as to how 
galvanizing occurs.'' They do not have a preference for a particular 
species of guardrail, as both have been found to have very similar 
properties to one another. They would prefer that their flexibility to 
use both kinds remains intact. That is the Ohio Department of 
Transportation. They don't want to be told they can't use the process 
many of them use now, which is continuous galvanization.
  The primary manufacturer of continuous galvanization guardrails is 
Gregory Industries, located in Canton, OH. It was founded in 1896. It 
is a privately owned company currently run by the fourth and fifth 
generations of the Gregory family. These guardrails make up about 75 
percent of the Gregorys' business, and about 99 percent of the 
guardrails they make are made through this continuous galvanization 
process that would be prohibited under the legislation. In addition, 
about 30 percent of their sales come from type 1 guardrails, which 
would be prohibited under the legislation. So the language as it stands 
would be devastating for this one company and put 125 jobs in their 
Canton, OH, facility at risk.
  By the way, the guardrails they produce are approved by the American 
Association of State Highway and Transportation Officials in a document 
called the M-180 that dictates what is acceptable and what is not.
  The type of products the current language would prohibit, by the way, 
have been in use in all 50 States in the country, and the continuous 
process for galvanizing guardrails that would be prohibited has been 
around for 50 years.
  The bottom line is that we should not give this Ohio company or any 
company an advantage. We should allow competition to determine this and 
let the States determine it. Why come up with a new mandate that 
micromanages this process at a time when we are all trying to save 
dollars and use them more efficiently? So this amendment seeks to 
strike the language that would limit the flexibility of States and 
place additional costs in cases where it does make sense to use type 1 
or it does make sense to use this continuous galvanization.

  I urge the Senate take a commonsense approach, and I urge all of my 
colleagues to support this legislation. I know my colleague may have 
some thoughts on this, but, in summary, I would ask through this 
amendment to strike the language that would limit the flexibilities of 
States and encourage support of amendment No. 859.
  Mr. KOHL. I object to amendment No. 859 presented by my colleague 
from Ohio, the guardrail amendment. However, I wish to inform him that 
we are trying to work out our differences so we can move forward. For 
the moment I object to the amendment.
  The PRESIDING OFFICER. The Chair is advised that it is not currently 
pending.
  Mr. PORTMAN. I ask unanimous consent that the pending amendment be 
set aside, and I call up my amendment No. 859.
  The PRESIDING OFFICER. Is there objection?
  Mr. KOHL. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. PORTMAN. I thank my colleague for his comments and look forward 
to working with him. Again, it is a simple amendment. It is a jobs 
amendment. It is perfectly germane to the bill. It is exactly the type 
of amendment that I think should not be blocked through this process.
  I thank my colleague from Wisconsin.
  I yield the floor.
  Mr. KOHL. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll of the Senate.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

[[Page S6818]]

  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Republican leader is recognized.
  Mr. McCONNELL. I ask unanimous consent that the junior Senator from 
New Hampshire and I be allowed to engage in a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 753

  Mr. McCONNELL. Mr. President, I thank my good friend from New 
Hampshire for the issue she has raised with regard to the proper way to 
treat enemy combatants. Her amendment, which we have been discussing 
off and on here on the floor today, has prompted predications of doom 
and gloom from our friends on the other side of the aisle, and a lot of 
very excited rhetoric.
  To be clear, I would ask my friend from New Hampshire: Is it not true 
that the amendment she has offered does not apply to everyone--
absolutely everyone--who might be generally labeled a terrorist?
  Ms. AYOTTE. I thank our distinguished Republican leader, the senior 
Senator from Kentucky, for that question. That is correct. My amendment 
only applies to members of al-Qaida and associated forces who are 
engaged in an armed conflict against our troops and coalition forces 
and who are planning or are carrying out an attack against our country 
or our coalition partners. It does not apply to everyone who might be 
termed a terrorist, and it does not apply to U.S. citizens who are 
members of al-Qaida.
  Mr. McCONNELL. I ask my friend further, has the Congress authorized 
use of military force against al-Qaida and associated forces?
  Ms. AYOTTE. I would answer, yes, it has. My amendment only pertains 
to enemy combatants against whom Congress has declared we are in an 
armed conflict. And because we are in an armed conflict with al-Qaida 
and associated forces, the Congress has authorized the use of military 
force to combat them, and that is why it is called the authorization 
for the use of military force.
  Mr. McCONNELL. I cannot recall a time when Congress has declared we 
are in an armed conflict, has authorized the use of military force 
against the enemy in that conflict, and yet the executive branch has a 
bias against using the military for interrogation and, if need be, a 
trial of these enemy forces. Can the Senator from New Hampshire recall 
such an occasion?
  Ms. AYOTTE. No, I cannot.
  Mr. McCONNELL. Two days ago the President's top lawyer at the 
Pentagon defended the administration's decision for use of lethal force 
against an American citizen who was a member of al-Qaida. In doing so, 
he noted that using lethal force in such a case is perfectly 
appropriate because that person was an enemy combatant. Specifically, 
he said: Those who are part of the congressionally declared enemy do 
not have immunity if they are U.S. citizens.
  Does it not strike my friend from New Hampshire as inconsistent for 
the administration to authorize lethal force against a member of al-
Qaida even if he is a U.S. citizen because he is part of an enemy force 
as declared by the Congress but, on the other hand, not to trust the 
military to try by military commission members of the same enemy force 
who are foreign nationals?
  Ms. AYOTTE. It certainly strikes me as very inconsistent. It is 
especially odd given that the military commissions were enacted by 
Congress at the suggestion of our Supreme Court. They were passed on a 
bipartisan basis and were refined by the Obama administration to its 
liking. Yet the administration refuses to fully use them as they were 
intended.
  Mr. McCONNELL. The amendment of the Senator from New Hampshire to 
this appropriations bill makes clear that in the war on terror we 
remain at war with al-Qaida and associated groups, that these forces 
remain intent on killing Americans, and that in prosecuting this war, a 
higher priority should be placed on capturing enemy combatants, 
interrogating them for additional intelligence value and thereby 
targeting other terrorists. That is the purpose, as I understand it, of 
the amendment of the Senator from New Hampshire. In military custody, 
our national security professionals would have a choice of prosecuting 
enemy combatants in a military commission, detaining them under the law 
of war, and periodically questioning them for intelligence as new 
information is developed without them being all lawyered up.
  Ms. AYOTTE. Yes, and yesterday some of our colleagues came to the 
floor to argue that my amendment would limit the choices available to 
our Commander-in-Chief in prosecuting terrorists.
  I would ask the Republican leader the following: In January of 2009, 
did President Obama, when he first came into office, issue Executive 
orders ending the Central Intelligence Agency's detention program, 
ending the CIA's option for using enhanced interrogation techniques, 
ordering the closure of the secure detention facility in Guantanamo 
Bay, Cuba, prior to any study being done concerning how to dispose of 
the population of enemy combatants there--we now know that 27 percent 
of them are back in theater--and suspending military commissions?
  Mr. McCONNELL. Well, of course, the Senator from New Hampshire is 
entirely correct. President Obama has unilaterally restricted the tools 
available to him for combating terrorism, including by ordering the 
closing of Guantanamo Bay prior to having any plan for dealing with the 
population of the Yemeni detainees who are almost certain to return to 
the fight if they are released from Guantanamo Bay.
  It seems that once the President shut down the ability of the CIA to 
detain enemy combatants and refused to transfer further detainees from 
Guantanamo Bay, that many of us were waiting for the obvious test case 
to come along in which a terrorist was captured outside Iraq or 
Afghanistan and needed to be interrogated and detained.
  I know the Senator from New Hampshire is a member of the Armed 
Services Committee. Does she recall the case of Mr. Warsame, the Somali 
terrorist captured at sea?
  Ms. AYOTTE. I do, and the Republican leader is correct that this test 
case shows that in capturing rather than killing terrorists, we can 
gain valuable intelligence. Instead of sending Warsame to Guantanamo, 
though, he was held and interrogated at sea for approximately 2 months. 
Then law enforcement officials were brought in to read Warsame his 
rights.
  I wish to take a minute to address arguments that were made on the 
floor earlier by Senator Levin from Michigan, the chairman of the Armed 
Services Committee. He claimed that if my amendment were to pass, Mr. 
Warsame would escape justice because we wouldn't be able to prove that 
he was, in fact, planning an attack against the United States. I wish 
to point out that if that were the case, my amendment would not apply 
because my amendment applies to members of al-Qaida or affiliated 
groups who are also planning or have carried out an attack against the 
United States, so he would be able to be held fully accountable in the 
civilian court system.
  I wanted to correct that because I think that leaves a misimpression 
that Mr. Warsame would not be or could not be held accountable under 
our law.
  The second problem with the analysis of the Senator from Michigan is 
that it ignores what is going on here. The reason the United States had 
to take the unusual steps of holding Warsame at sea on a Navy ship and 
then flying him to the United States over the Fourth of July weekend is 
because of the administration's refusal to use the top-rate detention 
facility at Guantanamo Bay, Cuba, that we have there for long-term 
military detention. Because it refuses to use this valuable asset for 
new captures, the administration has gone to great lengths to treat 
these enemy combatants who are captured on an ad hoc basis instead of 
placing them in a long-term detention facility, which places an 
artificial time period on when we can interrogate these individuals and 
how long they will be available to gather information to protect 
Americans.
  As the Republican leader has noted, the President's top lawyer at the 
Pentagon observed that members of al-Qaida are enemy combatants and 
that Congress has passed an authorization for the use of military force 
to treat them as such. We need to do that on a consistent basis and use 
the military

[[Page S6819]]

assets we have. We should not have an ad hoc, haphazard approach to 
treating enemy combatants. We should not Mirandize enemy combatants who 
are our military captures and then hold them on makeshift prison barges 
as if we were in the 19th century because the administration refuses to 
use Guantanamo Bay and then import them into the United States so they 
can be detained in our civilian court system, tried in our civilian 
courts, with the possibility that they could be released into the 
United States if they are acquitted or given a modest sentence, as 
nearly happened with Ahmed Ghailani.
  Now is the time to keep the pressure on al-Qaida, whether in the 
tribal areas of Pakistan or in Yemen. Our law enforcement officials 
have done a tremendous job in contributing to the counterterrorism 
fight. But we cannot, for the first time in the history of this 
country, take the view of the Attorney General, which is that our 
civilian court system is the most effective weapon in our conflict with 
al-Qaida, because that is simply not the case.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I wish to thank the Senator from New 
Hampshire on behalf of the leader. She has brought to the floor an 
outstanding amendment that needs to be addressed because this is an 
issue that is certainly on a lot of people's minds, as to why we would 
be using our judicial system for enemy combatants. She has articulated 
it so well, as the former attorney general of New Hampshire, and we 
appreciate so much that she has brought this amendment. It is going to 
get a lot of support from the American people as well as Members of the 
Senate.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, we have worked very hard to move through 
this first tranche of appropriations bills we have. Progress is being 
made but not nearly enough progress. I am going to move in just a 
minute to the Bryson nomination. But I want everyone within the sound 
of my voice to understand this cannot go on forever. People sometimes 
are unreasonable. We cannot have votes on all these amendments that 
have been called up. I hope everyone understands there has to be some 
give-and-take here, and we need to move through this. They need to be 
cooperative with the staffs, because when this matter regarding the 
Secretary of Commerce nomination is finished, we are going to have to 
make a decision as to whether we can continue working on this 
appropriations bill.
  This was a noble experiment. I am part of it. I want it to work very 
much, but it can't work without the cooperation of all Senators.
  I say to everyone listening, this is the way it has always been. I 
was a member of the Appropriations Committee the first day I came to 
the Senate, and I managed many appropriations bills on the Senate 
floor. For every one of them, we had more amendments than we had time 
to vote on them. That is where we are today. But the only way we can 
finish them is to work through these amendments. We hope we can do 
that; otherwise, we will have a cloture vote either tonight or tomorrow 
to determine whether we want to finish these appropriations bills--all 
extremely important--Commerce-State-Justice, Agriculture, and, of 
course, the Transportation bill. It would be good for us to be able to 
get this done.
  I heard Senator Collins, the Senator from Maine, speak about this a 
little earlier today, and she did an extremely good job of explaining 
why it is important we do this.

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