Congressional Record, Volume 157 Issue 158 (Thursday, October 20, 2011)

[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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