[Congressional Record Volume 158, Number 9 (Monday, January 23, 2012)]
[Senate]
[Pages S16-S27]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECT IP ACT, S. 968
Mr. President, rogue websites, primarily based overseas, are stealing
American property, harming American consumers, hurting the American
economic recovery and costing us American jobs. Stealing and
counterfeiting are wrong. They are harmful. The Institute for Policy
Innovation estimates that copyright infringement alone costs more than
$50 billion a year, and the sale of counterfeits online is estimated to
be several times more costly. The AFL-CIO estimates that hundreds of
thousands of jobs are lost to these forms of theft.
And this is not just an economic and jobs problem for Americans. This
is a consumer safety issue. According to a study released earlier this
year, a couple dozen websites selling counterfeit prescription drugs
had more than 141,000 visits per day, on average. Counterfeit
medication, brake linings and other products threaten Americans'
safety. These are serious concerns. These are the concerns I have kept
in mind over the last several years as I have worked with Senators on
both sides of the aisle to help resolve these serious problems.
I admire and respect the marvelous advances of technology and, in
particular, those represented by the Internet. I have promoted its
democratizing impact around the world. I have fought to keep the
Internet free and open, as it has become the incredible force that it
is today. I have promoted its potential for access in rural areas, for
distance learning, for increasing points of view and allowing all
voices to be heard and as a means for small start ups and firms in
Vermont and elsewhere to market quality products. Nor is this a
newfound interest or passing fancy. I started and chaired a Judiciary
Committee panel two decades ago on technology and the law and was a
founder of the bipartisan, bicameral congressional Internet Caucus.
Yesterday, The Washington Post got it right in its editorial entitled
``Freedom on the Internet'':
A free and viable Internet is essential to nurturing and
sustaining the kinds of revolutionary innovations that have
touched every aspect of modern life. But freedom and
lawlessness are not synonymous. The Constitution does not
protect the right to steal, and that is true whether it is in
a bricks-and-mortar store or online.''
Last week, a Wall Street Journal editorial was like-minded, noting:
The Internet has been a tremendous engine for commercial
and democratic exchange, but that makes it all the more
important to police the abusers who hijack its architecture.
. . . Without rights that protect the creativity and
innovation that bring fresh ideas and products to market,
there will be far fewer ideas and products to steal.''
Two years ago, I announced a bipartisan effort to target the worst-
of-the-worst of the foreign rogue websites that profited from piracy,
stealing and counterfeiting, while also ensuring that we protect the
Internet. I have been working since that time to do just that. In 2010,
the bill that Senator Hatch and I introduced was reported unanimously
by the Senate Judiciary Committee.
I took seriously the views of all concerned. I reached out to the
administration. We incorporated revised definitions suggested by
Senator Wyden. We held additional hearings to which we invited Google
and Yahoo!. And we redrafted the legislative measure and reintroduced
it as The Preventing Real Online Threats to Economic Creativity and
Theft of Intellectual Property Act, more commonly known as the PROTECT
IP Act. Senator Grassley joined as an original cosponsor. I continued
to work with all who showed interest. The measure was reported
unanimously from the Judiciary Committee in May 2011, and 40 Senators
from both sides of the aisle have cosponsored it. It is rare that
editorial boards with divergent viewpoints such as The Wall Street
Journal and The Washington Post agree on a problem and legislative
approach. As I have already noted, this problem of foreign rogue
websites engaging in piracy, theft and counterfeiting is one such time.
I ask that copies of the recent editorials from The Washington Post and
The Wall Street Journal be included in the Record at the conclusion of
my remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEAHY. Few issues unite the United States Chamber of Commerce and
the AFL-CIO; the National Association of Manufacturers and the
Teamsters; the cable industry and the broadcast industry. By targeting
the worst-of-the-worst and protecting the integrity of the Internet, we
have been able to create a broad ranging coalition of support of the
PROTECT IP Act. Along with law enforcement groups, more than 400
companies, associations, and unions have come together to support this
targeted, bipartisan legislation to combat foreign rogue websites.
Protecting American intellectual property and the American jobs that
depend on it is important. Last year we were able to reform our patent
laws to unleash American innovators and help boost our economic
recovery. Now we need to confront the threat to our economic recovery
posed by Internet piracy.
As I have demonstrated throughout my service in the Senate and again
during the last two years, I have remained flexible in terms of the
legislative language in order to best meet our goals of stemming the
criminality when protecting legitimate activities and guarding against
doing anything to undercut innovation or fetter free discussion. I have
urged those with concerns to come forward and to work with us. We
adjusted the very definitions in the bill to narrow them as Senator
Wyden had suggested. I announced two weeks ago that I took seriously
the concerns about the domain name system provisions and would fix it
as part of a manager's amendment when the bill was considered by the
Senate.
[[Page S22]]
I regret that the Senate will not be proceeding this week to debate
the legislation, and any proposed amendments. I thank the Majority
Leader for seeking to schedule that debate on this serious economic
threat. I understand that when the Republican leader recently objected
and Republican Senators who had cosponsored and long supported this
effort jumped ship, he was faced with a difficult decision. My hope is
that after a brief delay, we will, together, confront this problem.
Everyone says they want to stop the Internet piracy. Everyone says that
they recognize that stealing and counterfeiting are criminal and
serious matters. This is the opportunity for those who want changes in
the bill to come forward, join with us and work with us. This is the
time to suggest improvements that will better achieve our goals. The
PROTECT IP Act is a measure that has been years in the making, and
which has been twice reported unanimously by the Senate Judiciary
Committee to better enforce American intellectual property rights and
protect American consumers. It has been awaiting Senate action since
last May. Today the rogue foreign websites based in Russia that are
stealing Americans' property are delighted to continue their operations
and counterfeiting sweatshops in China are the beneficiaries of Senate
delay. People need to understand that the PROTECT IP Act would only
affect websites that have been judged by a federal court to have no
significant use other than engaging in theft whether through stolen
content or the selling of counterfeits. It is narrowly targeted at the
worst-of-the-worst. Websites that have some infringing content on their
sites but have uses other than profiting from infringement are not
covered by the legislation. Websites like Wikipedia and YouTube that
have obvious and significant uses are among those that would not be
subject to the provisions of the bill. That Wikipedia and some other
websites decided to ``go dark'' on January 18 was their choice, self
imposed and was not caused by the legislation and could not be.
It was disappointing that sites linked to descriptions of this
legislation that were misleading and one-sided. The Internet should be
a place for discussion, for all to be heard and for different points of
view to be expressed. That is how truth emerges and democracy is
served. Last week, however, many were subjected to false and incendiary
charges and sloganeering designed to inflame emotions. I am concerned
that while critics of this legislation engage in hyperbole about what
the bill plainly does not do, organized crime elements in Russia, in
China, and elsewhere who do nothing but peddle in counterfeit products
and stolen American content are laughing at their good fortune that
congressional action is being delayed.
Nothing in PROTECT IP can be used to cut off access to a blog.
Nothing in PROTECT IP can be used to shut off access to sites like
YouTube, Twitter, Facebook or eBay. Nothing in PROTECT IP requires
anyone to monitor their networks. Nothing in PROTECT IP criminalizes
links to other websites. Nothing in PROTECT IP imposes liability on
anyone. Nothing in PROTECT IP can be required without a court order,
first, and without providing the full due process of our Federal court
system to the defendants before a final judgment is rendered. I also
note that the guarantees of due process provided in the PROTECT IP Act
are those likewise provided every defendant in every Federal court
proceeding in the United States, no less. The PROTECT IP Act requires
notice to the defendant. If the plaintiff seeks an injunction, the
court must apply Federal Rule of Civil Procedure 65, which is the
standard for all courts in determining whether to issue an injunction,
including whether to issue the injunction as a temporary restraining
order for a limited period of time. When stealing of copyrights are
involved, such court orders can be made if, upon a factual showing, a
court finds that serious harm would otherwise occur and it is in the
public interest to do so while the case is more fully considered.
The PROTECT IP Act is directed at the foreign websites that are the
worst-of-the-worst thieves of American intellectual property and
operate from outside the United States and the jurisdiction of our
courts. These website operators prey on American consumers, steal from
our creators and economy, but are currently beyond the jurisdiction of
U.S. courts.
The Obama administrative officials were right in a recent post saying
``existing tools are not strong enough to root out the worst online
pirates beyond our borders.'' They called on Congress ``to pass sound
legislation this year that provides prosecutors and rights-holders new
legal tools to combat online piracy originating beyond U.S. borders
while staying true to the principles outlined. . . . We should never
let criminals hide behind a hollow embrace of legitimate American
values.'' That is what we are trying to do with the PROTECT IP Act.
What the PROTECT IP Act does is provide tools to prevent websites
operated overseas that do nothing but traffic in infringing material or
counterfeits from continuing to profit from piracy with impunity. The
Internet needs to be free, but not a lawless marketplace for stolen
commerce and not a haven for criminal activities.
In the flash of interest surrounding this bill last week, those who
were forgotten were the millions of individual artists, the creators
and the companies in Vermont and elsewhere who work hard every day only
to find their works available online for free, without their consent.
There are factory workers whose wages are cut or jobs are lost when
low-quality counterfeit goods are sold in place of the real thing they
worked so diligently to produce. There are men and women of our
National Guard and military who put their lives on the line for all of
us every day, and for whom a counterfeit part can literally be a matter
of life and death. There are the seniors who are struggling to be able
to afford medications and order from what appears to them to be a
reputable site, only to find that a foreign website has sent them an
untested counterfeit drug that will not control their blood pressure or
diabetes or heart problem.
At the end of the day, this debate boils down to a simple question.
Should Americans and American companies profit from what they produce
and be able to provide American jobs, or do we want to continue to let
thieves operating overseas steal that property and sell it to
unsuspecting American consumers? I hope that in the coming days the
Senate will focus on stopping that theft that is undercutting our
economic recovery. I remain committed to confronting this problem. And
I appreciate the efforts of Senator Kyl, Senator Alexander and others
who want to continue to work in a thoughtful manner with all interested
parties to find an effective solution to eliminate online theft by
foreign rogue websites. I thank those Senators who called me in Vermont
and back here this past week when I got back to Washington to offer
their help--Senators on both sides of the aisle. It means a lot.
I know the senior Senator from Nebraska is waiting to speak about the
judicial nominee from his State. I will say what I said to him
privately because I know this is his last year in the Senate. I have
always enjoyed working with him. He has worked hard. He has represented
the people of his State well. He has been very honest in his dealings
with me. He has been diligent with respect to judicial nominations for
vacancies in Nebraska. He has tirelessly pressed to fill vacancies
there to ensure cases before the Federal court are not needlessly
delayed. He did that to protect everybody in Nebraska, Republicans and
Democrats, to make sure the courts are open for them.
I am sorry the confirmation of Justice Gerrard, one he so strongly
supported, has been so needlessly delayed for more than 3 months, but I
say to the people of Nebraska they are very fortunate to have been
represented by the senior Senator from Nebraska, my friend Ben Nelson,
who has been there fighting for them. He fought for the people of
Nebraska every day from the day he took the oath of office. This may be
his last year here, but based on past performance I think it is safe to
say he will fight for Nebraska right up until the moment that
adjournment bell sounds.
Mr. President, I ask unanimous consent a January 19 article from the
Wall Street Journal and a January 22 article from the Washington Post
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S23]]
[From the Wall Street Journal, Jan. 19, 2012]
Brake the Internet Pirates
Wikipedia and many other websites are shutting down today
to oppose a proposal in Congress on foreign Internet piracy,
and the White House is seconding the protest. The covert
lobbying war between Silicon Valley and most other companies
in the business of intellectual property is now in the open,
and this fight could define--or reinvent--copyright in the
digital era.
Everyone agrees, or at least claims to agree, that the
illegal sale of copyrighted and trademarked products has
become a world-wide, multibillion-dollar industry and a
legitimate and growing economic problem. This isn't college
kids swapping MP3s, as in the 1990s. Rather, rogue websites
set up shop overseas and sell U.S. consumers bootleg movies,
TV shows, software, video games, books and music, as well as
pharmaceuticals, cosmetics, fashion, jewelry and more.
Often consumers think they're buying copies or streams from
legitimate retail enterprises, sometimes not. Either way, the
technical term for this is theft.
The tech industry says it wants to stop such crimes, but it
also calls any tangible effort to do so censorship that would
``break the Internet.'' Wikipedia has never blacked itself
out before on any other political issue, nor have websites
like Mozilla or the social news aggregator Reddit. How's that
for irony: Companies supposedly devoted to the free flow of
information are gagging themselves, and the only practical
effect will be to enable fraudsters. They've taken no
comparable action against, say, Chinese repression.
Meanwhile, the White House let it be known over the weekend
in a blog post--how fitting--that it won't support
legislation that ``reduces freedom of expression'' or damages
``the dynamic, innovative global Internet,'' as if this
describes the reality of Internet theft. President Obama has
finally found a regulation he doesn't like, which must mean
that the campaign contributions of Google and the Stanford
alumni club are paying dividends.
The House bill known as the Stop Online Piracy Act, or
SOPA, and its Senate counterpart are far more modest than
this cyber tantrum suggests. By our reading they would create
new tools to target the worst-of-the-worst black markets. The
notion that a SOPA dragnet will catch a stray Facebook post
or Twitter link is false.
Under the Digital Millenium Copyright Act of 1998, U.S.
prosecutors and rights-holders can and do obtain warrants to
shut down rogue websites and confiscate their domain names
under asset-seizure laws. Such powers stop at the water's
edge, however. SOPA is meant to target the international
pirates that are currently beyond the reach of U.S. law.
The bill would allow the Attorney General to sue infringers
and requires the Justice Department to prove in court that a
foreign site is dedicated to the wholesale violation of
copyright under the same standards that apply to domestic
sites. In rare circumstances private plaintiffs can also sue
for remedies, not for damages, and their legal tools are far
more limited than the AG's.
If any such case succeeds after due process under federal
civil procedure, SOPA requires third parties to make it
harder to traffic in stolen online content. Search engines
would be required to screen out links, just as they remove
domestic piracy or child pornography sites from their
indexes. Credit card and other online financial service
companies couldn't complete transactions.
(Obligatory housekeeping: We at the Journal are in the
intellectual property business, and our parent company, News
Corp., supports the bills as do most other media content
companies.)
Moreover, SOPA is already in its 3.0 version to address the
major objections. Compromises have narrowed several vague and
overly broad provisions. The bill's drafters also removed a
feature requiring Internet service providers to filter the
domain name system for thieves--which would have meant
basically removing them from the Internet's phone book to
deny consumer access. But the anti-SOPA activists don't care
about these crucial details.
The e-vangelists seem to believe that anybody is entitled
to access to any content at any time at no cost--open source.
Their real ideological objection is to the concept of
copyright itself, and they oppose any legal regime that
values original creative work. The offline analogue is Occupy
Wall Street.
Information and content may want to be free, or not, but
that's for their owners to decide, not Movie2k.to or
LibraryPirate.me or MusicMP3.ru. The Founders recognized the
economic benefits of intellectual property, which is why the
Constitution tells Congress to ``promote the Progress of
Science and useful Arts by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries'' (Article I, Section 8).
The Internet has been a tremendous engine for commercial
and democratic exchange, but that makes it all the more
important to police the abusers who hijack its architecture.
SOPA merely adapts the current avenues of legal recourse for
infringement and counterfeiting to new realities. Without
rights that protect the creativity and innovation that bring
fresh ideas and products to market, there will be far fewer
ideas and products to steal.
____
[From the Washington Post, Jan. 22, 2012]
Megaupload Shows Online Copyright Protection Is Needed
(By Editorial Board)
By most measures, the Web site Megaupload was a 21st-
century success story, with 50 million daily visitors and
$175 million in profits. According to the Obama
administration, it was also an ``international organized
crime enterprise.''
In an indictment last week, the Justice Department accused
the company and several of its principals of conspiracy,
racketeering and vast violations of copyright law. The loss
to copyright owners of movies, television programs,
entertainment software and other content: some $500 million.
The government calls this the largest criminal copyright case
in the nation's history.
Megaupload maintained servers in the United States and
relied on U.S.-registered domain names, allowing U.S.
prosecutors to tap domestic laws to shutter the business. But
what if the Web site had been run using only foreign-based
servers and foreign-registered domain names? U.S. law
enforcers would have had a difficult if not impossible time
stopping the alleged wrongdoing.
That reality, of course, is what gave rise to the Protect
IP Act (PIPA) and its House counterpart, the Stop Online
Piracy Act (SOPA), which proposed to give the Justice
Department and copyright owners the legal reach and muscle to
thwart overseas theft of American intellectual property. SOPA
was fatally flawed, with vague provisions that could have
made legitimate Web sites vulnerable to sanctions. PIPA was
more measured, allowing action against a site only if a
federal judge concluded it was ``dedicated to'' profiting
from the unauthorized peddling of others' work.
Still, Internet giants such as Google railed against the
bills, arguing they sanctioned government censorship and
threatened the viability and security of the Internet. The
protests culminated last week in a remarkable, largely
unprecedented protest during which sites such as Wikipedia
temporarily went dark. Millions of individuals--many of them
armed with distorted descriptions of the bills--phoned, e-
mailed and used social networks to demand that they be
quashed.
Whether it was democracy in action or spinelessness by
cowed lawmakers, the campaign worked. House and Senate
leaders said they would pull back the bills for further
consideration. While a temporary breather may be helpful,
lawmakers should not abandon the quest to curb the
multibillion-dollar problem that is overseas online piracy.
Some opponents will fight any regulation of the Internet.
This should not be acceptable. A free and viable Internet is
essential to nurturing and sustaining the kinds of
revolutionary innovations that have touched every aspect of
modern life. But freedom and lawlessness are not synonymous.
The Constitution does not protect the right to steal, and
that is true whether it is in a bricks-and-mortar store or
online.
The PRESIDING OFFICER (Mr. Coons). The Senator from Nebraska.
Mr. NELSON of Nebraska. I thank my colleague, the esteemed chair, for
such kind remarks. I wish they were universally believed by all. This
is the kind of introduction my father would have enjoyed but my mother
would have believed. I appreciate so very much his kind comments.
The Nebraska Supreme Court temporarily stayed the execution of one
prisoner, a Carey Dean Moore, because a full evidentiary record was
before it in another immediately pending case, State v. Mata, which was
referred to by my friend and colleague from Alabama, Senator Sessions.
That case challenged the constitutionality of electrocution as a method
of execution. It did not challenge, it did not deal with, and was not
associated with whether or not to have a death penalty. It was not
challenging the death penalty but the methodology of a death penalty.
The court had to determine whether a prisoner should be executed
depending on whether that question was soon answered. The temporary
stay was issued and the other case decided as a matter of State
constitutional law. The court, by a vote of 6 to 1, determined that
execution as a method--and I emphasize ``a method'' of electrocution--
violated prohibitions against cruel and unusual punishment, which is
the purview of the court to make that determination where there is a
question of dealing with the Constitution.
The court was clear that the death penalty remained valid in
Nebraska. No writ of certiorari had been taken. The Nebraska
Legislature changed the method of execution to lethal injection, and
the execution of Moore, Mata, and others will be carried out
accordingly.
As a matter of fact, the court has set a date of execution for a
prisoner to be executed on March 6. This same court set dates of
execution while I was Governor on three occasions, and they were
carried out. Judge Gerrard was a
[[Page S24]]
member of the court at that time and had no objections to the
executions. It is the methodology that the court dealt with.
It is important to recognize that in the Moore case the issue was not
whether the death penalty itself was constitutional; it was whether a
particular means of execution was constitutional. Those are completely
different questions.
Senator Sessions claims that Judge Gerrard stayed the defendant's
execution in the light of ``a changing legal landscape.'' However, it
is not uncommon for a court, when presented with different cases
involving related issues, to withhold ruling on any one case until all
of the related issues are resolved. Therefore, the Moore order reflects
a pragmatic decision to wait until both cases could be resolved.
I agree with Senator Sessions that this is about the duty of a judge
to be faithful to the law and to serve under the law. However, I
strongly disagree with Senator Sessions' characterization of Judge
Gerrard as an activist judge. Judge Gerrard has written 450 opinions in
his 15-plus years on the Nebraska Supreme Court. The U.S. Supreme Court
concluded in a previous case that the U.S. Supreme Court and the
Nebraska Supreme Court have held in a related matter that the death
penalty is not cruel and unusual. Judge Gerrard would have no
difficulty following that binding precedent. As a matter of fact, he
has. He has no personal beliefs that would prevent him from enforcing
the death penalty. In fact, he has authored several opinions and voted
to affirm the convictions and sentences of defendants who have actually
been sentenced to death.
Judge Gerrard believes the death penalty is an acceptable form of
punishment. He understands the significant difference between a judge
on a court of last resort interpreting State court constitutional law
and a Federal district judge who follows U.S. Supreme Court precedent.
I reiterate for the record, Judge Gerrard is held in the highest
regard by both the bench and the bar in Nebraska. He has earned an
``AV'' Martindale-Hubbell rating from his colleagues, and the American
Bar Association has deemed him ``unanimously well-qualified'' to serve
on the U.S. district court.
I thank my colleague, Senator Johanns from Nebraska, for his support
and his comments which I think were also very supportive, clearly
supportive, of Judge Gerrard and the decisions. Clearly, he is not an
activist judge.
I yield the floor.
recess appointments
Mr. GRASSLEY. Mr. President, just over a month ago, on December 17,
the Senate entered into a unanimous consent agreement to consider the
nomination of John M. Gerrard, of Nebraska, to be United States
District Judge for the District of Nebraska. We are proceeding with
this nomination, which I will support, despite the President's actions
on recess appointments. During the last session we acted responsibly in
considering the President's nominees. Even the Majority Leader
acknowledged this. He stated, ``We have done a good job on nominations
the last couple of months. Actually, in the last 3 months, we have
accomplished quite a bit.''
I will have more to say about the recess appointments. But with
regard to this nomination I hope my colleagues understand that even
though we are proceeding under regular order today, it is only because
this unanimous consent agreement was locked in before the President
demonstrated his monarchy mentality by making those appointments. I am
not going to hold this nominee accountable for the outrageous actions
of the President.
However, as this is a matter of concern to my Republican colleagues,
as it should be for all Senators, we must consider how we will respond
to the President and restore a Constitutional balance. Since the
adoption of the unanimous consent agreement governing the nomination
before us, President Obama has upset the nominations process. Article
II, Section 2 of the Constitution provides for only two ways in which
Presidents may appoint certain officers.
First, it provides that the President nominates, and by and with the
advice and consent of the Senate, appoints various officers. Second, it
permits the President to make temporary appointments when a vacancy in
one of those offices happens when the Senate is in recess. On January
4, the President made four appointments. They were purportedly based on
the Recess Appointments Clause. He took this action even though the
Senate was not in recess. This action is of the utmost seriousness to
all Americans.
These appointments were blatantly unconstitutional. They were not
made with the advice and consent of the Senate. And they were not made
``during the recess of the Senate.''
Between the end of December and today, the Senate has been holding
sessions every 3 days. It did so precisely to prevent the President
from making recess appointments. It followed the same procedure as it
had during the term of President Bush. Honoring the Constitution and
the desire of the Senate President Bush declined to make recess
appointments during these periods. But President Obama chose to make
recess appointments despite the existence of these Senate sessions.
In addition to being unconstitutional, these so-called recess
appointments break a longstanding tradition. They represent an
attempted presidential power grab against this body.
A President has not attempted to make a recess appointment when
Congress has not been in recess for more than 3 days in many decades.
In fact, for decades, the Senate has been in recess at least 10 days
before the President has invoked this power.
Other parts of the Constitution beyond Article II, Section 2 show
that these purported appointments are invalid. Article I, Section 5
provides, ``Each House may determine the Rules of its Proceedings. . .
.''
In December and January, we provided that we would be in session
every 3 days. The Senate was open and provided the opportunity to
conduct business. That business included passing legislation and
confirming nominations. In fact, the Senate did pass legislation, which
the President signed. According to the Constitution--each House--not
the President determines whether that House is in session. The Senate
said we were in session. The President recognized that fact by signing
legislation passed during the session.
Article I, Section 5 also states, ``Neither House, shall, during the
session of Congress, without the consent of the other, adjourn for more
than 3 days. . . .'' The other body did not consent to our recess for
more than 3 days. No concurrent resolution authorizing an adjournment
was passed by both chambers. Under the Constitution, we could not
recess for more than 3 days. We did not do so. The President's
erroneous belief that he can determine whether the Senate was in
session would place us in the position of acting unconstitutionally. If
he is right, we recessed for more than 3 days without the consent of
the other body. By claiming we were in recess, the President
effectively dares us to say that we failed to comply with our oath to
adhere to the Constitution. Yet, it is the President who made
appointments without the advice and consent of the Senate while the
Senate was in session. It is the President who has violated the
Constitution.
Of course, the President does not admit that he violated the
Constitution. He has obtained a legal opinion from the Office of Legal
Counsel at his own Department of Justice.
That opinion reached the incredible conclusion that the President
could make these appointments, notwithstanding our December and January
sessions. That opinion is entirely unconvincing. For instance, to reach
its conclusion that the Senate was not available as a practical matter
to give advice and consent, it relies on such unpersuasive material as
statements from individual Senators.
The text of the Constitution is clear. It allows no room for the
Department to interpret it in any so-called ``practical'' way that
departs from its terms.
The Justice Department also misapplied a Judiciary Committee report
from 1905 on the subject of recess appointments. That report said that
a Senate ``recess'' occurs when ``the Senate is not sitting in regular
or extraordinary session as a branch of the Congress, or in
extraordinary session for the discharge of executive functions;
[[Page S25]]
when its Members owe no duty of attendance; when its Chamber is empty;
when, because of its absence, it can not receive communications from
the President or participate as a body in making appointments.''
Obviously, that report does not support the Department of Justice.
During these days, the Senate was sitting in session. It could
discharge executive functions. The Chamber was not empty. It could
receive communications. It could participate as a body in making
appointments. In fact, it sat in regular session and passed
legislation.
There is nothing in the 1905 report that justifies the President
substituting his judgment for the Senate's regarding whether the Senate
is in session. In any event, a Senate Judiciary Committee report from
1905 does not govern the United States Senate; in 2012. The Senate; as
constituted today; decides its rules and proceedings.
The Department is on shaky legal ground when it claims that ``whether
the House has consented to the Senate's adjournment of more than 3 days
does not determine the Senate's practical availability during a period
of pro forma sessions and thus does not determine the existence of a
`Recess' under the Recess Appointments Clause.''
There is no basis--none--for treating the same pro forma sessions
differently for the purposes of the 2 clauses. The Department simply
cannot have it both ways.
The Justice Department's opinion contains other equally preposterous
arguments. For instance, the opinion claims that the Administration's
prior statements to the Supreme Court--through former Solicitor General
Elena Kagan--that recess appointments can be made only if the Senate is
in recess for more than 3 days are somehow distinguishable from its
current opinion, or that the pocket veto cases do not apply.
Or even if they did, the ``fundamental rights'' of individuals that
the courts described in those cases include the right of the President
to make recess appointments.
There was a time when Presidents believed that they could take action
only when the law gave them the power to do so. They obtained advice
from the Justice Department on the question whether there was legal
authority to justify the action they wished to take. But Theodore
Roosevelt started to change the way Presidents viewed power. He
believed that the President could do anything so long as the
Constitution did not explicitly preclude him from acting. When he used
that theory to create wildlife refuges against a rapidly expanding
industrial base, there was no objection. But a dangerous precedent was
set. When he claimed that he could make recess appointments during a
``constructive recess'' of the Senate, the Senate rejected this view in
that 1905 report.
When a President thinks he can do anything the Constitution does not
expressly prohibit, the danger arises that his advisers will feel
pressure to say that the Constitution does not stand in the way. At
that point, a President is no longer a constitutional figure with
limited powers as the founders intended. Quite the contrary, the
President looks more and more like a king that the Constitution was
designed to replace.
This OLC opinion reflects the changes that have occurred in the
relationship between the Justice Department and the President on the
question of presidential power. Formerly, the Justice Department gave
legal advice to the President based on an objective reading of texts
and judicial opinions. It was not an offshoot of the White House
Counsel's office.
This more objective view of the limits of Presidential power also
provided a level of protection for individual liberty, the principle at
the core of our constitutional separation of powers. The President
might refuse to accept the advice. He might choose to fire the officer
who gave him advice with which he disagreed. He could seek to appoint a
new officer who would provide the advice he preferred. But he risked
paying a political price for doing so. An official who thought that
loyalty to the Constitution exceeded his loyalty to the President could
refuse to comply, at great personal risk. That is what Elliot
Richardson did during the Saturday Night Massacre of the Watergate era.
During the Reagan Administration, OLC issued opinions that concluded
that the President lacked the power to undertake certain acts to
implement some of his preferred policies. The President did not
undertake those unilateral actions.
President Obama originally submitted a nominee for OLC that was
wholly objectionable. The Senate had good reason to believe that she
would not interpret the law without regard to ideology. We refused to
confirm her.
The President ultimately withdrew her nomination and nominated
instead Virginia Seitz. We asked important questions at her
confirmation hearing and thorough questions for the record.
Ms. Seitz responded that OLC should adhere to its prior decisions in
accordance with the doctrine of stare decisis. And she stated that if
the administration contemplated taking action that she believed was
unconstitutional, she would not stand idly by. Relying on those
assurances, the Senate confirmed Ms. Seitz.
Ms. Seitz is the author of this wholly erroneous opinion that takes
an unprecedented view of the Recess Appointments Clause. And I suppose
it is literally true that Ms. Seitz did not stand idly by when the
administration took unconstitutional action: rather, she actively
became a lackey for the administration. She wrote a poorly reasoned
opinion that placed loyalty to the President over loyalty to the rule
of law.
That opinion, and her total deviation from the statements she made
during her confirmation process, show extreme disrespect for the
institution of the Senate and the constitutional separation of powers.
I gave the President and Ms. Seitz the benefit of the doubt in voting
to confirm her nomination. However, after reading this misguided and
dangerous legal opinion, I am sorry the Senate confirmed her. It's
likely to be the last confirmation she ever experiences.
The Constitution outlines various powers that are divided among the
different branches of our Federal government. Some of these powers are
vested in only one branch, such as granting pardons or conducting
impeachment proceedings. Other powers are shared, such as passing and
signing or vetoing bills. The appointment power is a shared power
between the President and the Congress. When one party turns a shared
power into a unilateral power, the fabric of the Constitution is itself
violated, and a response is called for.
In Federalist 51, Madison wrote that the separation of powers is more
than a philosophical construct. He wrote that the ``separate and
distinct exercise of the different powers of government'' is
``essential to the preservation of liberty.''
The Framers of the Constitution wrote a document that originally
contained no Bill of Rights. They believed that liberty would best be
protected by preventing government from harming liberty in the first
place. That was the reason for the separation of powers. They designed
a working separation of powers through checks and balances to ensure a
limited government that protected individual rights. Madison wrote,
``Ambition must be made to counteract ambition. The interest of the man
must be connected with the constitutional rights of the place.''
That is what the Framers intended in a case such as this. When the
President unconstitutionally usurped the power of the Senate, the
Senate's ambition would check the President's. In this way, the
Constitution is preserved. The power of the government is limited. And
the liberties of the people are protected. But the Framers did not
anticipate the modern Presidency. It took Justice Jackson's famous
concurrence in the Youngstown case to address presidential powers in
today's world. When the Judiciary Committee held its confirmation
hearings on President Bush's Supreme Court nominations, my friends on
the other side of the aisle posed many questions about the Jackson
concurrence. That opinion sheds light on these so-called recess
appointments.
For instance, President Obama argued in a nationally televised rally
that his actions were justified because ``[e]very day that Richard
[Cordray] waited to be confirmed . . . was another day when millions of
Americans were left unprotected. . . . And I refuse to take `no' for an
answer.''
[[Page S26]]
Justice Jackson anticipated these hyperbolic statements. He wrote:
``The tendency is strong to emphasize the transient results upon
policies. . . . and lose sight of enduring consequences upon the
balanced power structure of our Republic.'' President Obama has
definitely let transient policy goals overtake the Constitution. His
argument is that the end justifies the means.
His argument is that he can say no to the Constitution. Or, in
essence, that the Constitution does not apply to him. But the
Constitution demands that the means justify the ends, and that
adherence to established procedure is the best protection for liberty.
A monarch or a king could say no to the Constitution. But under our
Constitution, the President may not. It is the Constitution, and not
the President, that refuses to take no for an answer.
Justice Jackson was also aware that the modern President's actions
``overshadow any others [and] that, almost alone, he fills the public
eye and ear.'' By virtue of his influence on public opinion, he wrote,
the President ``exerts a leverage upon those who are supposed to check
and balance his power which often cancels their effectiveness.''
Some people believe that President Obama challenged the Senate for
partisan purposes. But Justice Jackson understood the true partisan
dynamic that is now playing out. He recognized that the President's
powers are political as well as legal. Many presidential powers derive
from his position as head of a political party. Jackson wrote: ``Party
loyalties and interests sometimes more binding than law, extend his
effective control into branches of government other than his own, and
he often may win, as a political leader, what he cannot command under
the Constitution.'' Finally, he concluded, ``[O]nly Congress itself can
prevent power from slipping through its fingers.''
Outside these walls, in the reception room, are portraits of great
Senators of the past. The original portraits were selected by a
committee that was headed by then Senator John F. Kennedy. They
included such figures as Webster, Clay, Calhoun, LaFollette, and Taft.
Yes, these Senators were partisans. But they were selected because of
the role they played in maintaining the unique institution that is the
Senate in our constitutional system. In particular, they protected the
Senate and the country from the excessive claims of presidential power
that were made by the chief executives of their time. Where are such
Members today?
Where is a member of the President's party today who is like a more
recent Senate institutionalist--Robert C. Byrd? He defended the powers
of the Senate when Presidents overreached--even Presidents of his own
party. Where are the Members who recognized that our sessions every 3
days rightly prevented President Bush from making recess appointments
but who stand idly by as President Obama makes recess appointments
without a recess?
I remind my colleagues of my experiences as chairman or ranking
member of the Finance Committee. I refused to process nominees to
positions that passed through that committee to whom President Bush
gave recess appointments. That is how I used the authority that I had
to protect the rights of the Senate.
I do not believe we should let the powers vested in the elected
representatives of the American people slip through our fingers because
we place partisan interests above the Constitution. I have shown how
the Framers understood that supposedly expedient departures from the
Constitution risked individual liberty. The constitutional text in this
situation is clear. It must be upheld. We must take appropriate action
to see that it is done.
Nor should we wait for the courts.
Although the NLRB appointments are already the subject of litigation,
we should take action ourselves rather than rely on others. The stakes
are too high. On the other hand, even the OLC opinion recognizes, as it
must, the litigation risk to the President.
For more than 200 years, Presidents have made very expansive claims
of power under the Recess Appointments Clause. The President and the
Senate have worked out differences to form a working government.
Now, the Obama administration seeks to upend these precedents and
that working relationship. It may well find, as did the Bush
administration, that when overbroad claims of presidential power find
their way to court, that not only does the President lose, but that
expansive arguments of presidential power that had long been a part of
the public discourse can no longer be made.
Although I believe that this ironic result will ultimately occur here
as well, the Senate must defend its constitutional role on its own, as
intended by the framers of the Constitution that we all swore an oath
to uphold.
Mr. KYL. Mr. President, important questions have been raised about
Judge Gerrard's willingness to follow established precedent in a
reasoned way in death-penalty cases. Too often, the Senate has
confirmed nominees who are hostile to the death penalty, and who then
abuse their authority and twist the law to block the execution of
legally sound capital sentences that have been entered by State courts.
In his December 15, 2011, written response to questions posed to him by
Senator Sessions, however, Judge Gerrard assured the Senate that he
``would have no difficulty'' in following ``binding precedent'' in
capital cases, and that he has ``no personal beliefs that would prevent
[him] from enforcing the death penalty.'' I take Judge Gerrard at his
word and thus will vote in favor of confirming his nomination to be a
United States district judge.
Mr. GRASSLEY. Mr. President, John M. Gerrard is nominated to be
United States District Judge for the District of Nebraska. Judge
Gerrard received his B.S. degree from Nebraska Wesleyan University in
1975 and his J.D. from Pacific McGeorge School of Law in 1981.
He began his legal career in private practice as an associate for the
Nebraska law firm of Jewell, Otte, Gatz, Collins & Domina. A year
later, Judge Gerrard joined in a new law firm where he conducted
primarily a general litigation practice. In 1990, Judge Gerrard and two
partners formed a new law office. For the next 5 years, before being
appointed to the bench, he engaged in an active trial practice and
administrative law/school law practice.
In 1995, then-Governor Nelson appointed Judge Gerrard to the Nebraska
Supreme Court. He has been retained (by election) in 1998, 2004, and
2010. He has written roughly 480 opinions, 450 of which are published.
The opinions cover a variety of legal issues, including homicide
appeals, tort issues, and evidentiary disputes. While serving on the
State's highest court, Judge Gerrard has served on a number of
committees, including those focusing on issues pertaining to gender,
race and the judicial system.
The American Bar Association Standing Committee on the Federal
Judiciary has rated Judge Gerrard with a unanimous ``Well Qualified''
rating.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. CONRAD. Mr. President, I yield back all time on our side.
The PRESIDING OFFICER. All time has expired.
The question is, Will the Senate advise and consent to the nomination
of John M. Gerrard, of Nebraska, to be United States District Judge for
the District of Nebraska?
The yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from North Carolina (Mrs.
Hagan), the Senator from New Jersey (Mr. Lautenberg), the Senator from
Connecticut (Mr. Lieberman), the Senator from Maryland (Ms. Mikulski),
and the Senator from Vermont (Mr. Sanders) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from
[[Page S27]]
Georgia (Mr. Chambliss), the Senator from South Carolina (Mr. Graham),
the Senator from Utah (Mr. Hatch), the Senator from North Dakota (Mr.
Hoeven), and the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted ``yea.''
The PRESIDING OFFICER (Mr. Manchin). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 74, nays 16, as follows:
[Rollcall Vote No. 1 Ex.]
YEAS--74
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Coats
Cochran
Collins
Conrad
Coons
Corker
Crapo
Durbin
Enzi
Feinstein
Franken
Gillibrand
Grassley
Harkin
Heller
Hutchison
Inouye
Johanns
Johnson (SD)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Leahy
Levin
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed (RI)
Reid (NV)
Roberts
Rockefeller
Schumer
Shaheen
Snowe
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--16
Boozman
Coburn
Cornyn
DeMint
Inhofe
Isakson
Johnson (WI)
Lee
Paul
Risch
Rubio
Sessions
Shelby
Toomey
Vitter
Wicker
NOT VOTING--10
Chambliss
Graham
Hagan
Hatch
Hoeven
Kirk
Lautenberg
Lieberman
Mikulski
Sanders
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table, and the
President will be immediately notified of the Senate's action.
____________________