[Congressional Record Volume 158, Number 100 (Friday, June 29, 2012)]
[Senate]
[Pages S4735-S4764]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  SMALL BUSINESS JOBS AND TAX RELIEF ACT MOTION TO PROCEED--Continued


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Republican leader is 
recognized.


                Surface Transportation Conference Report

  Mr. McCONNELL. Mr. President, I will address two issues. I commend, 
in particular, the senior Senator from Oklahoma for the extraordinary 
work he has done to produce a transportation bill that has significant 
reforms in it. He has been tenacious and effective. He has tugged on 
our sleeves and pointed out to us repeatedly the importance of getting 
this job done. I congratulate him for an extraordinary accomplishment.
  With regard to the bill, the highway conference report contains 
significant reforms to the surface transportation program. Projects 
will now be completed in a more timely manner because, for the first 
time, there are hard deadlines on agencies to complete environmental 
reviews.
  Also, States are given maximum flexibility to use their 
transportation dollars the way they choose, rather than how Washington 
dictates. This bill is fully paid for with a package of offsets mostly 
included in the Senate-passed highway bill.
  The conference report also contains important legislation to reform 
the National Flood Insurance Program and prevent the interest on 
college student loans from doubling.
  The flood insurance bill is a model of reform: It moves this long-
failing program closer to where it should be--the private sector. These 
reforms actually cut subsidies, save the taxpayers money, and greatly 
improve the program's financial position. It was negotiated and 
reported out of committee on a bipartisan basis.
  On the student loan issue, Republicans and Democrats worked hard to 
find common ground. The agreement we have reached will ensure that 
college students who are already facing enormous challenges in the 
Obama economy will not be paying higher interest rates next month.
  Students can't wait for the President to get off the campaign trail 
and actually work with Congress to prevent student loan interest rates 
from rising this year. So while the President continues to ignore the 
bipartisan proposals sent more than 3 weeks ago, Senate Democrats 
dropped their demand for job-killing tax hikes and worked with 
Republicans to find solutions.
  It is nice to finally see the Senate actually work as the Senate used 
to. It proves that if this body ignores the campaign attacks from the 
President and if our Democratic friends stop pushing job-killing tax 
hikes, we can actually get a lot done around here. I, once again, thank 
my colleagues for all their hard work on these important measures.


                          Health Care Decision

  Mr. McCONNELL. Mr. President, the most important issue brought to the 
front page in the last 2 days is the state of the new ObamaCare law.
  Two and a half years ago, President Obama teamed up with Democrats 
right here in Congress to pass a health care bill they knew most 
Americans didn't want. Americans have been very clear about what they 
thought of this bill. So Democrats settled on a deeply dishonest sales 
pitch aimed at convincing them otherwise.
  Nearly every day since then, the promises that formed the very heart 
of that sales pitch have been exposed for the false promises they were.
  Americans were promised lower health care costs. But, of course, they 
are going up. Americans were promised lower premiums, and they are 
going up. Seniors were promised Medicare would be protected; it was 
raided to pay for a new entitlement instead. We were promised it would 
create jobs; CBO predicts it will lead to 800,000 fewer jobs because of 
ObamaCare. People were promised they could keep the plans they liked; 
millions have now learned they cannot.
  For 2 years, the list of broken promises has grown longer and longer 
and longer.
  But yesterday morning, we got powerful confirmation of what may have 
been the biggest deception of all. For years, the President and his 
Democratic allies in Congress have sworn up and down--sworn up and 
down--that failing to comply with the individual mandate did not result 
in a tax on individuals or families. ``It is not a tax,'' they said.
  The reason was obvious. If Americans knew that failure to comply 
resulted in a tax hike, of course, the bill would never have passed. If 
our friends on the other side had conceded the obvious--that it was, in 
fact, a tax hike--we all know it never would have passed. The President 
would not be able to claim his health care bill didn't raise taxes on 
the middle class, as he did again and again and again.
  Yesterday, the Court blew the President's cover. In a narrowly upheld 
case on one basis only--that the penalty associated with the individual 
mandate is a tax--the Court spoke. It said Congress doesn't have the 
constitutional authority to mandate insurance coverage under the 
commerce clause. Congress doesn't have the authority to mandate 
individual insurance coverage under the commerce clause, but it 
obviously does have the power to tax. So they upheld the central 
provision of the bill on the fact that the penalty for failing to 
comply with it was a tax.
  In the eyes of the Court, that is all the penalty tied to the 
individual mandate ever was: a tax imposed by a Democratic Congress--
without a single Republican vote--primarily, interestingly enough, on 
the middle class. It is a tax on the middle class. Let's be very clear 
about that. The tax connected to the individual mandate is not 
primarily a tax on the rich but on the middle-class Americans who will 
bear the brunt of it.
  Listen to this, colleagues. According to the CBO, at least 77 percent 
of the people paying this tax will meet the President's own definition 
of the middle class; 77 percent of the people paying this tax will meet 
the President's own definition of the middle class.
  Those who have to pay the tax will pay an average tax of $1,200. Even 
if they pay it every year, they still will not have insurance.
  Yesterday's decision turns the President's campaign rhetoric on its 
head. Those who will end up paying the heaviest burden for not buying 
government-mandated insurance are not going to be the wealthiest 
Americans--oh, no--but the very middle-class families the President 
claims to defend.
  That is the truth the Court unmasked yesterday.
  Most Americans thought the process Democrats used to pass the health 
care bill was unseemly, secretive, partisan, even antidemocratic. They 
also thought it was unconstitutional for the government to create 
commerce in order to regulate it--for the government to create commerce 
in order to regulate it.

  All of that is still true. But what many Americans may not have 
appreciated when this bill passed was how empty all of the promises 
were--how completely empty all the promises were. And at the center of 
them all was the claim that failing to buy health insurance did not 
result in a tax. That was the central claim: Failing to buy health 
insurance did not result in a tax.
  But the Court has now spoken: It is a tax--largely on the middle 
class. This is just one more reason this law needs to be repealed in 
its entirety. With every passing day we learn something new about this 
terrible law. Not only does it make the problems in our

[[Page S4736]]

health care system worse, it leads to a tax on middle-class families 
who are either unable or unwilling to purchase health insurance. What a 
terrible idea.
  So it is time for Democrats to stop trying to defend the indefensible 
and join Republicans in wiping this colossal legislative mistake clear 
off the books. Yesterday's decision gives us the clearest proof yet 
this bill has to go. It needs to be repealed to clear the way for 
commonsense, step-by-step reforms that protect Americans' access to the 
care they need from the doctor they choose at a lower cost. That is 
precisely what Republicans intend to do.
  Mr. President, I yield the floor.


                       Reservation of Leader Time

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
leadership time is reserved.
  The ACTING PRESIDENT pro tempore. Under the previous order, Senators 
are permitted to speak for up to 10 minutes.
  The Senator from Iowa.


                          Health Care Decision

  Mr. GRASSLEY. Mr. President, yesterday the Supreme Court overturned 
the mandatory Medicaid expansion in the Affordable Care Act. As of 
yesterday, the States now have a choice to expand or not expand 
coverage to the poorest people in society without being subjected to 
harsh Federal penalties.
  I would like to draw attention to a speech I gave on the Senate floor 
in December 2011 on the subject of the constitutionality of the 
Medicaid expansion. I expressed my concerns then about the potential 
impact of a Supreme Court decision on Medicaid expansion.
  I said on the floor that day:

       A Supreme Court ruling in favor of the States in this case 
     could not only jeopardize the mandated Medicaid expansion in 
     the Affordable Care Act but could challenge the fundamental 
     structure of Medicaid and have broader implications outside 
     of health care.

  The concerns I expressed then have, to a degree, come true.
  Reading from a Washington Post editorial this morning about the Court 
ruling on Medicaid:

       This restriction of federal authority may have greater 
     ramifications than the court's limiting of the Commerce 
     Clause. One can imagine challenges to federal conditions 
     across a wide spectrum of programs, including but not limited 
     to the environment, education and transportation.

  This decision overturns the mandatory expansion of the Medicaid 
Program. While I realize most of the focus is on the decision related 
to the tax mandate, we should spend a moment talking about the 
consequence of the Medicaid decision.
  Mr. President, one of the goals of the health care reform was to 
provide coverage for people in need. I would argue the people most in 
need of coverage are people without a job, people without an income, 
and the poorest of the poor. The Affordable Care Act required States to 
cover people below poverty through Medicaid. States were mandated to 
expand to cover people below poverty. Yesterday, the Supreme Court 
ruled that mandatory expansion unconstitutional.
  Writing for the majority, Chief Justice Roberts said:

       Nothing in our opinion precludes Congress from offering 
     funds under the Affordable Care Act to expand the 
     availability of health care, and requiring the States 
     accepting such funds to comply with the conditions on their 
     use. What Congress is not free to do is to penalize States 
     that choose not to participate in that new program by taking 
     away their existing Medicaid funding.

  With this decision, States now have the option to expand Medicaid to 
cover people below poverty. Mr. President, the States had that option 
even before the Affordable Care Act was passed. So what does this 
decision mean in real terms?
  It will be up to the States to determine if they will cover the 
poorest of the poor. The Federal Government cannot guarantee coverage. 
So now people with jobs will have to purchase insurance under the tax 
mandate. People without an income, people who are below poverty, are 
dependent upon the State in which they reside.
  I know some people will believe the choice is perfunctory, that 
Medicaid expansion will move forward because the Federal Government has 
offered to pay for more than 90 percent of the expansion. But if you 
were a State, would you really trust a promise from a Federal 
Government that is $15 trillion in debt? If you were a State, would you 
really trust an Obama administration that proposed eliminating that 
special Federal payment rate through a proposal known as the blended 
rate?
  States will very reasonably be risk averse. States can now expand if 
they choose to or not at all. No one should assume for a second all 
States will expand to cover as much as was mandated under the 
Affordable Care Act.
  Of course, one might think people below poverty could still get 
health care through tax credits, but the people who wrote this bill 
made people below poverty ineligible for tax credits. That is right--
ineligible. It is all or nothing for the poor with Medicaid. With 
today's ruling, the answer is, nothing.
  On December 15, 2011, I said on the Senate floor that the expansion 
of Medicaid and the coverage of poor people was in jeopardy because 
``the White House and the Democratic majority put their partisan goals 
ahead of collaboration with Republicans and States to build legitimate 
public policy.''
  Today, that is the outcome. When people with income, people with jobs 
are mandated to purchase health insurance and face a tax penalty if 
they do not, while the poorest people in society, those without a job 
or without income have a guarantee of nothing, I think victory laps are 
premature.
  After this decision, a person in a family with an income of more than 
$80,000 a year would be guaranteed access to a subsidy to buy private 
insurance, while a person in a family with no income would be 
guaranteed nothing. When people below poverty, the people who can least 
afford coverage or the consequence of not having coverage are left with 
nothing, it sounds like failure to me.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Mr. President, regarding yesterday's Supreme Court decision, 
there have been a variety of very interesting editorials, op-ed pieces, 
and blogs--many of them erudite and very useful for the analysis of the 
Court's opinion. Of course, it will take a long time for us to know 
precisely how all of this will work out over time. I thought I might 
refer to a couple of these opinions and op-eds and put them in the 
Record for people to see what a sampling might look like so they can 
more thoroughly analyze the opinion and then pose a question at the 
end.
  I start with one of my friends, and I think one of the best 
columnists, even nationally, that I know. He writes for my local paper, 
the Arizona Republic. His name is Bob Robb, and he writes in his column 
on June 29:

       Roberts' decision controlled the outcome, even though it 
     was fully joined by no other justice. Here's what he 
     concluded:
       The federal government has no power under the 
     Constitution's Commerce Clause to require individuals to 
     purchase health insurance, as Obamacare does. However, the 
     federal government does have the power to impose a financial 
     penalty on people for not complying with the mandate the 
     federal government has no authority to impose. That's because 
     the penalty is actually a tax under Congress' constitutional 
     taxing authority.
       However, the penalty is not a tax for purposes of the Anti-
     Injunction Act, which would preclude the court from 
     considering the legality until someone actually pays it.

  Obviously, Mr. President, these dilemmas require some explanation. It 
may be--and this is my phrasing, not Bob Robb's--this is a good example 
of where the phrase of ``legal legerdemain'' comes into play.
  Robb continues:

       If Congress has no authority to require people to do 
     something, such as purchase health insurance, how can it 
     penalize them for not doing it?
       And how can money owed exclusively because of failing to 
     comply with an unconstitutional mandate be regarded as a tax 
     and not a penalty?

  He goes on to say:

       The purpose of the constitutional taxing power is to raise 
     the money to operate the government. The clause reads: 
     ``Congress shall have the power to lay and collect taxes . . 
     . to pay the debts and provide for the common defense and 
     general welfare of the United States.''
       The purpose of the penalty for not buying health insurance, 
     however, isn't to raise revenue. The government would prefer 
     not to get any money from it at all. The purpose is to compel 
     compliance with the mandate that Roberts says the government 
     has no power to impose.
       There is nothing in the Constitution that can remotely be 
     construed as giving Congress the power to tax people, not to 
     raise revenue but to punish them for failing to do what 
     Congress would like them to do.


[[Page S4737]]


  And Robb concludes:

       If Congress cannot do something directly, it shouldn't be 
     able to do it indirectly through taxation.

  Mr. President, this raises a very important question. If the taxing 
power can be used to institute mandates such as ObamaCare, the real 
question is, What limits are there on such taxing power? I believe this 
may be one of the most important unanswered questions in Justice 
Roberts' opinion.
  One attempt to square the circle, in effect, was by a writer named 
Joshua Hawley in the Daily Caller in his column entitled ``What's 
behind Roberts' surprising decision?'' I note that Hawley comes to this 
with some credentials, being described as a former law clerk to Chief 
Justice Roberts as well as an associate law professor at the University 
of Missouri. In effect, as I read Hawley's piece, he said Justice 
Roberts actually constrained Congress's power dramatically by, first of 
all, drawing a clear line on the reasonable and proper extension of the 
commerce clause power. But he also said the taxing authority Roberts 
uses to justify Congress's action in ObamaCare is actually very 
limited.
  In fact, he says that Roberts attempted to make this case sui 
generis--that is the Latin phrase for ``one of a kind''--and that only 
in this particular case would the taxing authority be permissibly used 
for Congress to require the people to do something.
  I hope Hawley's analysis is correct. I am not so sure it is. Roberts' 
opinion certainly will make it more politically difficult for Congress 
to pass things that extend its authority because it will have to be 
clothed in the cloak of a tax, and Congress doesn't generally like to 
pass new taxes on people. But Congress and the lawyers who advise us 
are pretty clever about phrasing legislation in such a way that it 
would meet constitutional challenges.
  Now that we have a new example of a power that we might exercise--
namely, this expanded taxing power--I suspect we will see efforts in 
the future to clothe our legislation under the guise of that taxing 
power. If so, the constraints in Chief Justice Roberts' opinion would 
be no constraints at all.
  There is an old saying that hard cases make bad law. I don't know 
that this was all that hard of a case, but it clearly resulted in a lot 
of different points of view from the Justices, from which one could 
conclude that at least they saw it as a hard case. I just hope the end 
result is not bad law, as I have suggested it could be here today.
  I ask unanimous consent to have printed in the Record at the 
conclusion of my remarks the following pieces: first, the Robert Robb 
column dated June 29 from the Arizona Republic; second, the Wall Street 
Journal editorial of June 28, ``ObamaCare and the Power to Tax''; a 
Rich Lowry piece in National Review Online dated June 29, ``The Umpire 
Blinks''; a National View Online piece by The Editors dated June 28, 
``Chief Justice Roberts's Folly''; and the Joshua Hawley piece dated 
June 28 from the Daily Caller.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Arizona Republic, June 29, 2012]

                  False Premise Lets `Obamacare' Go On

                            (By Robert Robb)

       For whatever reason, Chief Justice John Roberts decided to 
     rescue ``Obamacare'' from the constitutional trash heap.
       His reasoning in doing so should be an embarrassment to 
     him. It certainly tossed more dirt on the burial site of the 
     Founders' vision of a federal government with limited, 
     enumerated powers.
       Roberts' decision controlled the outcome, even though it 
     was fully joined by no other justice. Here's what he 
     concluded:
       The federal government has no power under the 
     Constitution's Commerce Clause to require individuals to 
     purchase health insurance, as Obamacare does.
       However, the federal government does have the power to 
     impose a financial penalty on people for not complying with 
     the mandate the federal government has no authority to 
     impose. That's because the penalty is actually a tax under 
     Congress' constitutional taxing authority.
       However, the penalty is not a tax for purposes of the Anti-
     Injunction Act, which would preclude the court from 
     considering its legality until someone actually pays it.
       Where to begin?
       If Congress has no authority to require people to do 
     something, such as purchase health insurance, how can it 
     penalize them for not doing it?
       And how can money owed exclusively because of failing to 
     comply with an unconstitutional mandate be regarded as a tax 
     and not a penalty?
       The purpose of the constitutional taxing power is to raise 
     the money to operate the government. The clause reads: 
     ``Congress shall have the power to lay and collect taxes . . 
     . to pay the debts and provide for the common defense and 
     general welfare of the United States.''
       The purpose of the penalty for not buying health insurance, 
     however, isn't to raise revenue. The government would prefer 
     not to get any money from it at all. The purpose is to compel 
     compliance with the mandate that Roberts says the government 
     has no power to impose.
       There is nothing in the Constitution that can remotely be 
     construed as giving Congress the power to tax people, not to 
     raise revenue but to punish them for failing to do what 
     Congress would like them to do.
       If Congress cannot do something directly, it shouldn't be 
     able to do it indirectly through taxation.
       Congress, unlike Roberts, understood that it was enacting a 
     penalty, not a tax. The law repeatedly calls the money owed 
     for failing to comply with the individual mandate a penalty.
       Roberts says that what Congress calls it isn't dispositive 
     regarding whether it is a tax under the Constitution. But it 
     is dispositive for purposes of the Anti-Injunction Act.
       The Anti-Injunction Act prevents those who are subject to 
     federal taxes from challenging their legality until after 
     they have been paid.
       If the penalty is a tax, then no one could challenge its 
     legality until after someone pays it, which won't happen 
     until 2014. The case wouldn't properly have been before the 
     court.
       So, Roberts declared that the money owed for failing to 
     comply with the individual mandate is a tax for purposes of 
     the Constitution because he says so. But it's a penalty for 
     purposes of the Anti-Injunction Act because Congress says so.
       In Robertsworld, an unconstitutional mandate becomes not a 
     mandate if the money owed for not complying is dubbed a tax 
     and not a penalty. But the same money can be both a penalty 
     and a tax depending on who is asking and why.
       It's as though Roberts were channeling Lewis Carroll in 
     writing the opinion.
       This decision is hardly the end of the Obamacare saga. 
     Obamacare will implode as it is implemented.
       The country will have to readdress the question of how to 
     most cost-effectively subsidize the care of the seriously and 
     chronically sick.
       But for today, let's mourn the death of reasoning and 
     something more important.
       In Federalist No. 45, James Madison wrote: ``The powers 
     delegated by the proposed Constitution to the federal 
     government are few and defined.''
       That's not the federal government we have today. Roberts' 
     pettifogging on Obamacare can be seen as its final interment.
                                  ____


             [From the Wall Street Journal, June 28, 2012]

                     ObamaCare and the Power To Tax

                               (Opinion)

       `Judicial tax-writing is particularly troubling. Taxes have 
     never been popular, see, e.g., Stamp Act of 1765.'
       Supreme Court Justices Antonin Scalia, Anthony Kennedy, 
     Clarence Thomas and Samuel Alito dissenting from the majority 
     opinion that upheld most provisions of the Affordable Care 
     Act on Thursday:
       The provision challenged under the Constitution is either a 
     penalty or else a tax. Of course in many cases what was a 
     regulatory mandate enforced by a penalty could have been 
     imposed as a tax upon permissible action; or what was imposed 
     as a tax upon permissible action could have been a regulatory 
     mandate enforced by a penalty. But we know of no case, and 
     the Government cites none, in which the imposition was, for 
     constitutional purposes, both. The two are mutually 
     exclusive. Thus, what the Government's caption should have 
     read was ``ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS 
     NOT A MANDATE-WITH-PENALTY BUT A TAX.'' It is important to 
     bear this in mind in evaluating the tax argument of the 
     Government and of those who support it: The issue is not 
     whether Congress had the power to frame the minimum-coverage 
     provision as a tax, but whether it did so.
       In answering that question we must, if ``fairly possible,'' 
     construe the provision to be a tax rather than a mandate-
     with-penalty, since that would render it constitutional 
     rather than unconstitutional (ut res magis valeat quam 
     pereat). But we cannot rewrite the statute to be what it is 
     not. ``[A]lthough this Court will often strain to construe 
     legislation so as to save it against constitutional attack, 
     it must not and will not carry this to the point of 
     perverting the purpose of a statute . . . or judicially 
     rewriting it.'' In this case, there is simply no way, 
     ``without doing violence to the fair meaning of the words 
     used,'' to escape what Congress enacted: a mandate that 
     individuals maintain minimum essential coverage, enforced by 
     a penalty.
       Our cases establish a clear line between a tax and a 
     penalty: ``[A] tax is an enforced contribution to provide for 
     the support of government; a penalty . . . is an exaction 
     imposed by statute as punishment for an unlawful act.'' In a 
     few cases, this Court has held that a ``tax'' imposed upon 
     private conduct was so onerous as to be in effect a penalty. 
     But we have never held--never--that a

[[Page S4738]]

     penalty imposed for violation of the law was so trivial as to 
     be in effect a tax. We have never held that any exaction 
     imposed for violation of the law is an exercise of Congress' 
     taxing power--even when the statute calls it a tax, much less 
     when (as here) the statute repeatedly calls it a penalty. 
     When an act ``adopt[s] the criteria of wrongdoing'' and then 
     imposes a monetary penalty as the ``principal consequence on 
     those who transgress its standard,'' it creates a regulatory 
     penalty, not a tax.
       So the question is, quite simply, whether the exaction here 
     is imposed for violation of the law. It unquestionably is. 
     The minimum-coverage provision is found in [the Affordable 
     Care Act's individual-mandate provision], Sec. 5000A, 
     entitled ``Requirement to maintain minimum essential 
     coverage.'' (Emphasis added.) It commands that every 
     ``applicable individual shall . . . ensure that the 
     individual . . . is covered under minimum essential 
     coverage.'' (emphasis added). And the immediately following 
     provision states that, ``[i]f . . . an applicable individual 
     . . . fails to meet the requirement of subsection (a) . . . 
     there is hereby imposed . . . a penalty.'' (emphasis added). 
     And several of Congress' legislative ``findings'' with regard 
     to Sec. 5000A confirm that it sets forth a legal requirement 
     and constitutes the assertion of regulatory power, not mere 
     taxing power. . . .
       We never have classified as a tax an exaction imposed for 
     violation of the law, and so too, we never have classified as 
     a tax an exaction described in the legislation itself as a 
     penalty. To be sure, we have sometimes treated as a tax a 
     statutory exaction (imposed for something other than a 
     violation of law) which bore an agnostic label that does not 
     entail the significant constitutional consequences of a 
     penalty--such as ``license'' or ``surcharge.'' But we have 
     never--never--treated as a tax an exaction which faces up to 
     the critical difference between a tax and a penalty, and 
     explicitly denominates the exaction a ``penalty.'' Eighteen 
     times in Sec. 5000A itself and elsewhere throughout the Act, 
     Congress called the exaction in Sec. 5000A(b) a ``penalty.''
       Judicial tax-writing is particularly troubling. Taxes have 
     never been popular, see, e.g., Stamp Act of 1765, and in part 
     for that reason, the Constitution requires tax increases to 
     originate in the House of Representatives. That is to say, 
     they must originate in the legislative body most accountable 
     to the people, where legislators must weigh the need for the 
     tax against the terrible price they might pay at their next 
     election, which is never more than two years off. The 
     Federalist No. 58 ``defend[ed] the decision to give the 
     origination power to the House on the ground that the Chamber 
     that is more accountable to the people should have the 
     primary role in raising revenue.'' We have no doubt that 
     Congress knew precisely what it was doing when it rejected an 
     earlier version of this legislation that imposed a tax 
     instead of a requirement-with-penalty. Imposing a tax through 
     judicial legislation inverts the constitutional scheme, and 
     places the power to tax in the branch of government least 
     accountable to the citizenry.
       Finally, we must observe that rewriting Sec. 5000A as a tax 
     in order to sustain its constitutionality would force us to 
     confront a difficult constitutional question: whether this is 
     a direct tax that must be apportioned among the States 
     according to their population. Perhaps it is not (we have no 
     need to address the point); but the meaning of the Direct Tax 
     Clause is famously unclear, and its application here is a 
     question of first impression that deserves more thoughtful 
     consideration than the lick-and-a-promise accorded by the 
     Government and its supporters. The Government's opening brief 
     did not even address the question--perhaps because, until 
     today, no federal court has accepted the implausible argument 
     that Sec. 5000A is an exercise of the tax power. And once 
     respondents raised the issue, the Government devoted a mere 
     21 lines of its reply brief to the issue. At oral argument, 
     the most prolonged statement about the issue was just over 50 
     words. One would expect this Court to demand more than fly-
     by-night briefing and argument before deciding a difficult 
     constitutional question of first impression.
                                  ____


            [From the National Review Online, June 29, 2012]

                           The Umpire Blinks

                            (By Rich Lowry)

       Chief Justice John Roberts famously defined himself as an 
     umpire in his confirmation hearings. But an umpire is willing 
     to make the toughest calls.
       In his Obamacare decision, Roberts the umpire blinked. By 
     issuing a decision that forestalled the tsunami of criticism 
     that would have come his way had he struck down the law (as 
     an activist, a partisan, and an altogether rotten human 
     being), Roberts effectively rewrote the constitutionally 
     problematic portions of it. He overstepped his bounds. The 
     umpire called a balk, but gave the pitcher a do-over. The ref 
     called a foul, but didn't interrupt the play.
       As a result, there's Obamacare as passed by Congress. Then 
     there's Obamacare as passed by the Supreme Court.
       Obamacare as passed by Congress had a mandate to buy health 
     insurance and a penalty for failing to comply. Obamacare as 
     passed by the Supreme Court has an optional tax for those 
     without health insurance. Obamacare as passed by Congress 
     required states to participate in a massive expansion of 
     Medicaid, or lose all their federal Medicaid funds. Obamacare 
     as passed by the Supreme Court makes state participation in 
     the Medicaid expansion optional.
       In pursuit of a judicial modesty deferential to Congress, 
     Roberts usurped its role. Obamacare as passed by Congress 
     didn't pass constitutional muster. Obamacare as passed by the 
     Supreme Court didn't pass Congress--and might not have passed 
     Congress had it been presented for an up-or-down vote 
     festooned with yet another tax.
       Roberts vindicated the core of the constitutional argument 
     against the individual mandate that had been sneered at by 
     the legal establishment and pronounced preposterous by the 
     likes of Nancy Pelosi. The mandate is unprecedented in that 
     it doesn't regulate existing activity; it compels people to 
     undertake an activity--namely, buying insurance--that 
     Congress then regulates under the Interstate Commerce Clause. 
     This stretches the Commerce Clause beyond the breaking point.
       The chief even reverted to the widely derided broccoli 
     argument: If the federal government can make you buy 
     insurance, it can make you eat vegetables. The government's 
     logic, Roberts wrote, ``authorizes Congress to use its 
     commerce power to compel citizens to act as the Government 
     would have them act. That is not the country the Framers of 
     our Constitution envisioned.''
       Then, Roberts went out in search of some way, any way, to 
     find the mandate constitutional. He alighted on the argument 
     that the mandate isn't a mandate at all, but a tax. Never 
     mind that the tax argument was an afterthought in the 
     administration's defense of the law. Never mind that 
     administration officials, from the president on down, 
     vociferously denied that it was a tax during the debate over 
     the bill. Never mind that the law itself never defines it as 
     a tax and includes the mandate (and its penalty) in a 
     different title of the act from the revenue provisions. ``To 
     say that the Individual Mandate merely imposes a tax is not 
     to interpret the statute, but to re-write it,'' the four 
     conservative dissenters from the Roberts opinion write. The 
     chief was willing to take out his rewrite pen to avoid 
     striking down the mandate. He did the same to keep from 
     throwing out the Medicaid expansion. He considers it, too, an 
     offense against the constitutional order. Wherever exactly 
     the line for impermissible coercion of the states falls, he 
     noted, ``this statute is surely beyond it.''
       Roberts gets points for cleverness. He set clear 
     constitutional boundaries without striking down the law. He 
     largely sided with the critics of Obamacare without enraging 
     its supporters. He came up with the only 54 decision that 
     wouldn't subject his court to the calumny of the Obama 
     administration and law-school deans everywhere. All the op-
     eds that had been drafted trashing the legitimacy of the 
     court have been filed away for now.
       As chief justice, Roberts has competing priorities, of 
     course. But it's not his job to redraft laws under the guise 
     of judicial restraint. On Obamacare, the umpire struck out.
                                  ____


            [From the National Review Online, June 28, 2012]

                     Chief Justice Roberts's Folly

                            (By the Editors)

       In today's deeply disappointing decision on Obamacare, a 
     majority of the Supreme Court actually got the Constitution 
     mostly right. The Commerce Clause--the part of the 
     Constitution that grants Congress the authority to regulate 
     commerce among the states--does not authorize the federal 
     government to force Americans to buy health insurance. The 
     Court, by a 5-4 margin, refused to join all the august legal 
     experts who insisted that of course it granted that 
     authorization, that only yahoos and Republican partisans 
     could possibly doubt it. It then pretended that this 
     requirement is constitutional anyway, because it is merely an 
     application of the taxing authority. Rarely has the maxim 
     that the power to tax is the power to destroy been so apt, a 
     portion of liberty being the direct object in this case.
       What the Court has done is not so much to declare the 
     mandate constitutional as to declare that it is not a mandate 
     at all, any more than the mortgage-interest deduction in the 
     tax code is a mandate to buy a house. Congress would almost 
     surely have been within its constitutional powers to tax the 
     uninsured more than the insured. Very few people doubt that 
     it could, for example, create a tax credit for the purchase 
     of insurance, which would have precisely that effect. But 
     Obamacare, as written, does more than that. The law 
     repeatedly speaks in terms of a ``requirement'' to buy 
     insurance, it says that individuals ``shall'' buy it, and it 
     levies a ``penalty'' on those who refuse. As the conservative 
     dissent points out, these are the hallmarks of a ``regulatory 
     penalty, not a tax.''
       The law as written also cuts off all federal Medicaid funds 
     for states that decline to expand the program in the ways the 
     lawmakers sought. A majority of the Court, including two of 
     the liberals, found this cut-off unconstitutionally coercive 
     on the states. The Court's solution was not to invalidate the 
     law or the Medicaid expansion, but to rule that only the 
     extra federal funds devoted to the expansion could be cut 
     off. As the dissenters rightly point out, this solution 
     rewrites the law--and arbitrarily, since Congress could have 
     avoided the constitutional problem in many other ways.

[[Page S4739]]

       The dissent acknowledges that if an ambiguous law can be 
     read in a way that renders it constitutional, it should be. 
     It distinguishes, though, between construing a law charitably 
     and rewriting it. The latter is what Chief Justice John 
     Roberts has done. If Roberts believes that this tactic avoids 
     damage to the Constitution because it does not stretch the 
     Commerce Clause to justify a mandate, he is mistaken. The 
     Constitution does not give the Court the power to rewrite 
     statutes, and Roberts and his colleagues have therefore done 
     violence to it. If the law has been rendered less 
     constitutionally obnoxious, the Court has rendered itself 
     more so. Chief Justice Roberts cannot justly take pride in 
     this legacy.
       The Court has failed to do its duty. Conservatives should 
     not follow its example--which is what they would do if they 
     now gave up the fight against Obamacare. The law, as 
     rewritten by judges, remains incompatible with the country's 
     tradition of limited government, the future strength of our 
     health-care system, and the nation's solvency. We are not 
     among those who are convinced that we will be stuck with it 
     forever if the next election goes wrong: The law is also so 
     poorly structured that we think it may well unravel even if 
     put fully into effect. But we would prefer not to take the 
     risk.
       It now falls to the Republicans, and especially to Mitt 
     Romney, to make the case for the repeal of the law and for 
     its replacement by something better than either it or the 
     health-care policies that preceded it. Instead of trusting 
     experts to use the federal government's purchasing power to 
     drive efficiency throughout the health sector--the vain hope 
     of Obamacare's Medicare-cutting board--they should replace 
     Medicare with a new system in which individuals have 
     incentives to get value for their dollar. Instead of having 
     Washington establish a cartel for the insurance industry, 
     they should give individuals tax credits and the ability to 
     purchase insurance across state lines. Instead of further 
     centralizing the health-care system, in short, they should 
     give individuals more control over their insurance.
       Opponents should take heart: The law remains unpopular. Let 
     the president and his partisans ring their bells today, and 
     let us work to make sure that they are wringing their hands 
     come November.
                                  ____


                 [From the Daily Caller, June 28, 2012]

              What's Behind Roberts' Surprising Decision?

                           (By Joshua Hawley)

       Say this for the lead opinion in the health care case the 
     Supreme Court handed down Thursday: nobody saw that coming. 
     Chief Justice Roberts joins with the court's more liberal 
     wing to uphold the Affordable Care Act . . . as a tax? The 
     result is, to put it mildly, counterintuitive. Scribes have 
     been busily dissecting the chief justice's doctrinal analysis 
     from the instant the opinion went viral, but here's a 
     different thought: doctrine may not be the key to this 
     judgment. As Leo Strauss once made a point of telling his 
     students, a text can be read in many different ways, and will 
     mean different things depending on the lens with which one 
     reads it. The text the chief justice published on Thursday 
     may or may not make good sense read as constitutional 
     doctrine. But read it as constitutional politics and things 
     get more interesting.
       Not politics in the way the Washington punditry means, of 
     course. Roberts' opinion has nothing to do with helping or 
     hurting President Obama's re-election chances this fall. The 
     truth is, Supreme Court justices are rarely interested in 
     that sort of thing. They see themselves as above partisan 
     allegiances and the grand questions of law they decide as 
     more important than run-of-the-mill partisan disputes.
       No, I mean politics in the constitutional sense, concerning 
     the Supreme Court's role in the Constitution's structure. The 
     danger this case held for the court from the beginning was 
     the possibility--indeed, high likelihood--that it would draw 
     the institution into an acute confrontation with the 
     executive branch in the middle of an election year, and at 
     the same time force the justices into the thick of a policy 
     debate where they have no genuine expertise. The chief 
     justice's opinion can be fruitfully read as a sort of 
     maneuver, an effort to avoid these evils while simultaneously 
     blocking the federal government's attempted power grab.
       Consider: Roberts begins with the Commerce Clause question, 
     where the Obama administration placed nearly all the weight 
     of its argument. According to the administration, the 
     Commerce Clause permits Congress to regulate any behavior (or 
     non-behavior) that has some incidental effect on commerce. 
     Roberts rejects that contention root and branch. Indeed, for 
     the first time in the Supreme Court's modern Commerce Clause 
     jurisprudence, he announces a clear and decisive limit to 
     what the federal government may do with its commerce 
     authority: it may regulate only actual economic activity, and 
     then only if the activity has a substantial effect on 
     interstate commerce. It may not regulate a person's choice 
     not to enter the stream of commerce in the first place.
       Had this been the sum and substance of the opinion, 
     liberals would have bewailed it as the constitutional 
     apocalypse they feared. But of course it is not the end; 
     Roberts goes on to the administration's secondary argument. 
     Yet by placing the Commerce Clause discussion where he does, 
     by holding unequivocally that the individual mandate cannot 
     survive on commerce grounds, Roberts makes the Commerce 
     Clause holding necessary to the final judgment. That means 
     the limits on the commerce authority he announced (and with 
     which the four dissenting justices agree) will control in 
     future cases.
       This is a significant, even major, development, but one 
     that is largely concealed by the opinion's ultimate judgment. 
     Yet even that judgment turns out to be rather less a victory 
     for the government than it first seems.
       The key move in Roberts' opinion is his conclusion that the 
     individual mandate is actually a sort of tax, and therefore 
     constitutional by virtue of Congress' unquestioned power to 
     tax. That allows the mandate to stand, yes--but effectively 
     makes the mandate sui generis, and thereby denies the 
     government a new source of regulatory power.
       This is why: Roberts does not say that the government may 
     now regulate anything it likes by calling the regulation a 
     tax. He says this mandate can be read as a tax in these 
     circumstances--that is, in light of the fact that it would be 
     unconstitutional on any other ground and the court is 
     supposed to avoid finding statutes unconstitutional if it 
     can--and on these grounds: because it is administered by the 
     IRS through the tax code and operates in many respects like a 
     normal tax. Only if future regulatory schemes can meet all 
     these criteria would they be valid under the taxing power. 
     Yet Roberts does not give a single example of any such 
     scheme--and we know for a fact, because they have told us 
     repeatedly, that members of Congress would never have voted 
     for this regulation if they had believed it was a tax.
       Making the mandate a tax has at least one other effect. It 
     makes repeal easier. Now that the mandate has been deemed 
     taxation, it can likely be jettisoned through use of the 
     reconciliation process--meaning the Senate will need to 
     muster only a bare majority for repeal, not 60 votes.
       By converting the mandate to a tax, then, Roberts limits 
     the ability of the government to do the same sort of thing in 
     the future and underlines the political unpopularity of the 
     law, all while allowing the law to stand. And because it does 
     stand, the court is spared a nasty turn at center stage in 
     the November elections.
       Whether the chief justice's stratagem actually works is a 
     different question. Suffice it to say, I have my doubts. The 
     text and structure of the law seem overwhelmingly to indicate 
     that the mandate is a legal requirement--namely, to buy 
     insurance--enforced with a fine. The mandate does not qualify 
     as a tax under the Supreme Court's settled rules for 
     identifying taxes, and both the text of the law and those who 
     wrote it said it was not.
       But then, Roberts' aim may be less to apply tax doctrine 
     than to shift the law's fate from the court to the voters. At 
     the beginning of his opinion, the chief justice pointedly 
     notes that the court ``do[es] not consider whether the Act 
     embodies sound policies. That judgment is entrusted to the 
     Nation's elected leaders.'' He repeats this sentiment at the 
     opinion's close, but with a subtle variation. ``[T]he Court 
     does not express any opinion on the wisdom of the Affordable 
     Care Act, he writes, for ``[u]nder the Constitution, that 
     judgment is reserved to the people.'' Could it be that the 
     chief justice is asking the people to render a verdict on the 
     leaders who wrote the law in the first place? In all events, 
     they should take him up on it.

  Mr. KYL. Mr. President, I also refer people to an excellent piece in 
the Wall Street Journal, ``A Triumph and Tragedy for the Law,'' by 
David Rivkin, Jr., and Lee Casey, both fine lawyers who frequently 
opine on matters of this sort.
  Mr. KYL. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MANCHIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


          125th Anniversary of the United Way of West Virginia

  Mr. MANCHIN. Mr. President, to lighten the mood a little bit today, I 
rise to recognize West Virginia's United Way as this special 
organization celebrates its 125th anniversary.
  The United Way was founded in 1887 by community leaders in Denver, 
CO. The renowned organization originated through a group of individuals 
who came together with the drive to improve community conditions. Since 
then, the organization has grown to 1,800 community-based United Ways 
in 41 countries and remains the world's largest privately supported 
nonprofit, raising nearly $5 billion annually.
  In our little State of West Virginia, United Way has touched the 
lives of so many. United Way volunteers have clocked thousands of hours 
of community service through health services,

[[Page S4740]]

senior assistance programs, student tutoring, nutrition sites, job 
skills training, and financial literacy services.
  United Way has enthusiastically embraced local institutions 
throughout our State. This wonderful organization has provided for at-
risk teens at residential treatment centers, such as the Daymark around 
Kanawha Valley. It has supported comprehensive medical and health 
services at establishments such as the West Virginia Chapter of the 
Alzheimer's Association, West Virginia Health Right, Cabell Huntington 
Children's Hospital, Thomas Memorial Hospital, and the Putnam County 
Dental Health Council. United Way has supported family counseling at 
the Kanawha Valley Fellowship Home and at Family Counseling Connection. 
It has also benefited emergency assistance facilities, such as the 
Boone County Community Organization and Madison Baptist Church, 
Mountain Mission, and Nitro-St. Alban's Care and Share.
  In 2011 alone, 68,337 individuals were served by United Way-supported 
programs in West Virginia alone. More than 13,162 children and youth 
benefited from the services of United Way partner agencies, and more 
than 26,997 people received financial assistance from a United Way 
partner agency. In addition, nearly 28,000 people received health-
related assistance from a United Way partner agency.
  I have always been an avid supporter of United Way and their 
community service efforts. My wife Gayle also served as chairwoman of 
Marion County's United Way. I applaud the organization's ability to 
inspire members in their communities to work together and improve all 
aspects of their neighborhoods.
  United Way has so many laudable goals. The organization is working to 
promote a healthier society by working with families to develop healthy 
lifestyles. While Americans continue to struggle in tough economic 
times, United Way has worked with families to help them achieve 
financial stability. For example, United Way launched the Financial 
Stability Partnership, which aims to halve the approximately 40 million 
Americans who are working in low-paying jobs without basic health 
benefits. United Way has also targeted key areas of education, 
addressing problems such as the student dropout rate and preparing 
children for success at an early age.
  United Way also has identified community health care needs and 
focuses efforts on changing health policies and practices for Americans 
of all ages. About 47 million Americans don't have health care 
coverage, and more than 80 percent are working families. The 
organization tackles tough health problems, such as health insurance 
coverage, along with the obesity epidemic and prescription drug abuse. 
These are tough issues that oftentimes have no easy solutions.
  I applaud United Way and all of its staff members, its volunteers, 
and community leaders for their efforts to improve the quality of life 
in all of our communities. Today the United Way has every reason to 
celebrate its success as they face this impressive milestone. I once 
again congratulate their achievements, and I look forward to seeing 
what this great organization will accomplish in the next 125 years and 
beyond.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.


                         Pilot's Bill of Rights

  Mr. INHOFE. Mr. President, before the Senator from West Virginia 
leaves, I would like to publicly thank him for all his support in 
something that just happened a few minutes ago; that is, passage of the 
Pilot's Bill of Rights.
  Several--certainly Senator Begich--have been working hard, including 
Senator Pryor and Senator Manchin, as well as many on the Republican 
side. But it is a reality now.
  This is kind of a strange day for me because I have been working on 
two bills for 1\1/2\ years, and both will become a reality on the same 
day: the highway bill that everyone knows about and then the Pilot's 
Bill of Rights that only pilots know about.
  I have been a pilot for 55 years, and I get the calls and complaints 
that come in. But pilots are really the only ones in our society who 
are denied access to justice like every other citizen has, and this 
corrects it. So I just want to say to my friend that I very much 
appreciate his support in making this a reality.
  Mr. MANCHIN. Mr. President, if I may say I appreciate the leadership 
of my good friend from Oklahoma and his unwavering support in bringing 
this to all of our attention. I have been a pilot for not quite 55 
years, but 45 years, and I understand completely. Senator Inhofe 
brought it to the attention of all of us, even the nonpilots here. His 
steadfast leadership in support of this action and also his ability to 
work across the aisle with those on our side of the aisle, Democrats, I 
appreciate so much.
  I know Senator Boxer feels very compelled about this and the 
Senator's leadership in working with her on the Transportation bill and 
both of them bringing that to the forefront for all of us. We are all 
going to benefit from that.
  I thank the Senator and look forward to continuing to work with him.
  Mr. INHOFE. I appreciate the comments of the Senator from West 
Virginia.
  Mr. President, I will make a couple comments and be more detailed 
later. I know a lot of people will want to talk about the bill that 
will most likely pass today in both the House and the Senate.
  A lot of people are not aware of the fact that a general aviation 
pilot doesn't have the same access to remedies as everybody else does. 
What makes this a little bit more compelling to do something about is 
that if you are not a pilot, you may not appreciate the fact that a lot 
of them are single-issue people.
  I had an experience where my license was in jeopardy for something 
that we found out I didn't do. I thought about all these complaints I 
have had over the years about abusive treatment by some of the 
enforcement people, and I never appreciated it until it happened to me.
  I know more people in the FAA who do a great job. They are very 
conscientious. These are career people. The problem is that every once 
in a while you have someone in the field with enforcement powers who 
just can't handle that kind of power.
  I was mayor of Tulsa for several years a number of years back. We had 
a great police force, but every now and then you had someone on the 
force who couldn't handle the power. They would abuse that power, and 
you would have to seek them out. And that is what this is all about--
you hear from these people when abuses take place.
  So what we have done is we have corrected that. We have a system set 
up in this legislation that if someone is accused of or cited for doing 
something that was wrong or that might be a violation of one of the 
FARs, that person will now have access to the evidence that would be 
used against that person.
  People might say: Well, wasn't that happening anyway? No, it wasn't. 
When this happened to me, I can remember very well--and I say to the 
Presiding Officer because we are very close and he knows I have been 
active in aviation for a long time--one year ago in October, I went to 
land at one of the southernmost airports in America, in South Texas, 
one at which I have landed more than 200 times. I know every square 
foot of it. It is a noncontrolled field.
  When I came in--there is a thing called NOTEM, Notice to Airmen. You 
are supposed to and you should find out what the NOTEMs are on the 
runway you will be landing on so if there is work on the runway--any 
towers going up, construction going on--you will know that in advance. 
That is your obligation.
  The problem is there has never been a central location where that can 
be found. In this case there was no NOTEM that had been published. 
There I go in, with the controller in the valley down there who has 
actually cleared me to land. Here I am, a United States Senator. It 
took me 4 months to get the voice recorder and I never did find out, 
early on, what the evidence was against me. It turned out fine, but 
nevertheless 4 months to get a voice recording that you were cleared to 
land, that is unreasonable.
  I see my friend from Indiana is on the floor. I do not want to take 
any more time on this, but on the NOTEM situation we will have a 
central location for that.
  The other problem we are having right now is medical certification. I

[[Page S4741]]

have case after case. In fact, at the AOPA, Aircraft Owners and Pilots 
Association--we are talking about 400,000 pilots out there--they have 
as their No. 1 concern the lack of consistency and uniformity in 
medical certification. A person could be a pilot and have a condition, 
could be a light heart attack or something, temporarily lose his 
license, then go back and have it reinstated. However, if he lives in 
another town, has a different doctor, that may not happen. So we have 
people out there who have lost their licenses. We are going to have a 
panel set up that is going to include the general aviation, include the 
medical community, and try to get uniformity. So those are three of the 
reforms we have in this legislation.
  I yield the floor. I will be talking about that later and also 
talking about the upcoming highway bill. I want to remind people, my 
good conservative friends, people who are trying to say this is not a 
conservative bill--it is. The worst thing we can do is continue to 
operate our roadbuilding and our construction in this country on 
extensions. When you do an extension you lose about 30 percent of the 
money. Obviously, the conservative position is to do this.
  We have reforms, incredible reforms, enhancement reforms. We will be 
talking about that during the course of the day.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Indiana.


                           Order of Procedure

  Mr. COATS. Mr. President, can I ask what the procedure is regarding 
time?
  The ACTING PRESIDENT pro tempore. Senators are permitted to speak for 
10 minutes each.
  Mr. COATS. Mr. President, I ask unanimous consent I be permitted to 
speak up to 20 minutes. I do not intend to take that much time, I do 
not think I will take that much time, but I think I will probably go 
over the 10-minute limit.
  Mrs. BOXER. Reserving the right to object, Mr. President, and I will 
not object, I ask unanimous consent that I be allowed to have 20 
minutes following my friend from Indiana.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                         Surface Transportation

  Mr. COATS. Mr. President, I rise here today to express my deep 
concern with this transportation conference report; in particular, 
about a provision that was slipped into the transportation conference 
report literally in the dark of night earlier this week.
  This provision, which I will describe, could have a devastating 
effect on my State as well as the State of Illinois. The Greater 
Chicago metropolitan region--whether it is northwest Indiana or 
northeast Illinois--is a region that works together. It is part of the 
expanded metropolitan area. A critical part of this is a waterway, 
which allows goods to be transferred up and down all the way to the 
delta and the Mississippi and all the way out to the St. Lawrence 
Seaway. It is the middle-west access to commerce that centers around 
the Chicago-northwest Indiana area.
  This provision, which was slipped in without debate, without 
consideration--it did not appear in the Senate bill, the transportation 
bill, and it did not appear in the House transportation bill and 
therefore is a blatant violation of rule XXVIII, which simply states 
you cannot do this kind of thing--but it was done anyway. I will at the 
proper point here raise an objection to that in a procedural way.
  Let me first talk, if I could, about the way in which we do business 
around here. Throughout my campaign in 2010 to return to the Senate, I 
continually heard from people as to how frustrated they were with the 
process by which laws are passed. We come home and people say why did 
you vote against that? You say I voted against that because it included 
this over here which was not relevant to it, and even though I liked 
the rest of the bill I did not like this part--or vice versa. I voted 
for this even though I did not like what it included because they 
packaged it all together and therefore there is nothing on record as to 
where I stand. They say to us where do you stand? We don't know whether 
your yes is a yes or your no is a no because it is so confusing the way 
you mix the whole thing together.
  That is exactly what is happening here today. We have taken a 
transportation bill, which was adeptly led by the Senator from 
California and the Senator from Oklahoma, they did a marvelous job 
putting a transportation package together, and now it is merged with 
two other major provisions. So we get one vote on this. People say: I 
have a real problem with the student loan bill or I have a real problem 
with the flood insurance bill, but I wanted to vote for the 
transportation bill. Now I am stuck in the position of having to vote 
yes on the whole thing, except what I have a problem with, another bill 
over here, or no, even though I want parts of the other bills to pass.
  Then we go home and explain this to the people we represent and they 
say: Why can't you guys and ladies take up one thing, vote yes or vote 
no, come home, defend your vote, but we at least know where you stand? 
Instead of this gobbledygook, throw everything in one big pot and vote 
your yes or vote your no. The way we package bills here, it is no 
wonder people are skeptical. It is no wonder our approval rating is 
where it is. This gobbledygook, so-called magic dust that we use around 
here to obscure what we stand for and stand against, is very 
frustrating for the American people. I can't tell you how much that has 
been expressed to me when I can go home and talk to them and try to 
explain certain votes and procedures. They say be straight up, be 
transparent. Pick out something; you are either for it or against it. 
We will evaluate whether we want to support you or not support you in 
the next election on the basis of your voting, but when you cloud over 
the whole thing we do not know what is going on. That is one thing, 
packaging bills.

  Second, we have a problem here, a major problem with our debt. We 
have known that. We spent the first 6 months of 2011 trying to come up 
with a long-term solution which would restructure some of our spending 
and put a lid on some of our spending. Finally, by August of 2011, 
Congress reached an agreement called the Budget Control Act which 
basically put caps on how much we would spend, trying to hold down this 
plunge into debt.
  By the way, just before I came over here I checked the debt clock 
which I have on my Web site. The numbers of course turn faster than you 
can write them down because that is how fast we are plunging into more 
debt, but as of probably minutes or so ago, our national debt stood at 
$15 trillion, nearly $16 trillion.
  None of us can comprehend what $1 trillion is. It is impossible. 
There have been all kinds of examples--if you stack dollars on top of 
each other you can go to the Moon and back and so forth--but I think it 
is important that we understand the gravity of our situation in terms 
of our plunge into debt and what impact it is going to have on the 
future for this country and what a debt burden it is going to be on 
future generations now getting ever closer to--$15,935,594,616,879 was 
what our debt was. That is 14 digits; 15,935,594,616,879.
  We took a little bit of a step in August, a mini step in August, 
saying we are going to cap this spending so we do not spend more than 
that going forward. That will at least slow down the rate of plunging 
into debt. It does not begin to do what we need to do to address this, 
but it will slow it down.
  What have we done since? What we have done is bring a number of bills 
to this floor, all of which continue to spend beyond our means. I did 
not vote for the Budget Control Act because I had a lot of skepticism 
about it. First of all, I felt it was woefully short of what we needed 
and, second, I believe that, having served here before and seen how 
this process works, I thought we are going to waive points of order 
time after time.
  We congratulate each other by voting for spending controls. ``This is 
an important step to dealing with our budget crisis. We have committed 
now not to spend more than the budget we deemed allows.''
  The postal reform bill violated budget rules; the student loan 
interest rate extension, it looks as though we have the score now, and 
we are going to violate agreed to levels; the Senate version that went 
over on the transportation bill violated budget rules; the payroll tax 
extension and the Violence Against Women Act--all violated what

[[Page S4742]]

we promised we would do. And we wonder why the American people are 
skeptical? We wonder why our approval rating is in the low double 
digits? I mean really low, almost into single digits--why people are 
frustrated and upset with us? Because we tell them we have made this 
promise to be fiscally responsible and virtually every bill we bring up 
here is irresponsible and we waive what we had agreed to do. We can 
hardly blame them for their skepticism here.
  Let me talk about this middle-of-the-night stuff. Another problem you 
have--you go home and what you simply can't explain is the fact that, 
no, this was not talked about in the Senate; no, this was not talked 
about in the House; there was no process--yet somebody, as we tried to 
merge the two bills, in the dark of the night, unnamed, no process, 
slipped in a provision and there it is. Usually we find out about this 
later.
  In this case we had a process. Senator Coats from Indiana worked with 
Senator Durbin, a Democrat from Illinois, and worked with another 
Democrat, the senior Senator from Ohio, to come to an agreement on a 
provision that impacted our area, the Great Lakes area, in a 
significant way. That was part of the Senate Energy and Water 
Appropriations bill.
  In the dark of the night, during the conference deliberations, 
another provision was added, not the bipartisan provision by Senators 
looking out for the economic interests of their State. And by the way, 
the economic interests of this country--because what was dropped in, in 
the middle of the night, is something that could potentially cost our 
Government and therefore cost our taxpayers hundreds of billions of 
dollars.
  We were fortunate enough to have discovered that because bringing 
those bills to the floor was delayed and we had time to dig into it and 
all of a sudden find out that this was done. What is egregious here is 
that this is not a partisan issue. We all know the House is controlled 
by my party. I don't know who put this in. I don't know exactly the 
motives as to why they put this in. But here it is, a dark-of-the-night 
slip it into the bill and overturn something that was processed through 
the appropriations committee, deliberated, discussed, and voted on.
  So what are the consequences of all that? What does this have to do 
with what I am talking about here? It sounds minuscule. We are talking 
about Asian carp. Why is the Senator from Indiana talking about Asian 
carp and hundreds and billions of dollars of costs? Let me tell you 
why. Asian carp is a generic term for four species of nonnative fish: 
grass, bighead, black, and silverhead carp. These fish were introduced 
to the United States in the 1970s to assist agricultural interests in 
the southern States.
  At some point--probably through flooding--the carp escaped into the 
Mississippi River system, and they have since spread throughout the 
whole watershed. They are voracious eaters, which make them beneficial, 
and we can see why they were imported. They were beneficial for 
controlled agricultural settings, fish farms, and so forth, but they 
create serious ecological challenges when competing for food with 
native species.
  I agree wholeheartedly that the spread of Asian carp throughout the 
Mississippi River and potentially into the Great Lakes is a serious and 
pressing problem, and I am committed to addressing this, as is Senator 
Durbin and Senator Brown from Ohio. We worked out a compromise 
agreement in terms of how we should go forward with this.
  A number of steps have already been taken by the Corps of Engineers. 
In 2002, the Army Corps of Engineers installed the first of a series of 
electric barriers along the lower reach of the Chicago area waterway 
system. In doing so, they believe, to date, they have successfully 
prevented the migration of carp into the Great Lakes.
  In 2009, the Corps began DNA testing to detect Asian carp in 
locations upstream in the barrier system. The testing showed these 
barriers have been very effective--to use the Corps' words--in 
preventing Asian carp from entering the waterway. In fact, when the 
Illinois Department of Natural Resources wanted to check this out, they 
purposefully dumped a bunch of toxins into the Chicago waterway to 
discover the extent of the Asian carp infestation. Those toxins killed 
tens of thousands of fish, but only one Asian carp was found among 
them. Since that time, the Army Corps has firmly held that the electric 
barriers are working as designated.
  Furthermore, in 2010, the Indiana Department of Natural Resources 
constructed barriers in the watershed. No State has gone further or 
gone to greater lengths to address this question than my State of 
Indiana, as well as the State of Illinois, in terms of preventing the 
introduction of Asian carp in the Great Lakes system. It is 
economically devastating for us if this happens and it is economically 
devastating for us and for Illinois if what was proposed in this bill 
in the dark of the night by the House of Representatives goes forward.
  Currently, the Army Corps of Engineers is undergoing an extensive 
study. Despite all the attempts to take these steps, which so far have 
proven to be successful, this provision that was incorporated in there 
could result in the closing of the locks of this waterway system, and 
it would endanger about $14 billion per year of economic activity and 
over 100,000 jobs in this area that I described that rely on the 
Chicago area waterway system.
  Closing the locks also may cost up to an additional $100 billion 
because it would require completely overhauling Chicago's underground 
water and sewage system. Closing the locks would also render worthless 
the billions of dollars that have already been invested to complete the 
Corps of Engineers flood control projects along the entire Mississippi 
watershed, and they may not even solve the problem.
  While the Chicago waterway system is the only direct continuous 
connection between the Great Lakes system, other potential pathways 
could allow carp immigration in times of flooding. So while it is clear 
that closing the Chicago locks is not an economically viable solution 
for stopping Asian carp--and I do understand the concerns the Great 
Lakes States have on this issue and I share those concerns--as a result 
of all that, we worked out a bipartisan compromise solution to 
addressing this area. We would allow a study to go forward, allow an 
economic assessment of the various options that had been presented, and 
then give Congress the information so it can make a decision as to 
which solution was best needed to go forward.
  What this provision does in this bill is simply give the agency 
responsible the authority to go ahead with the project and what they 
think the solution is without Congress having anything to say about it 
whatsoever. It is a preauthorization on a new project which could 
include closing of the locks, and if it does, it would have hundreds of 
billions of dollars of financial implications for the taxpayers and for 
this Congress but also have enormous negative economic impact on 
northwest Indiana, northeast Illinois and the entire Chicago region and 
all that commerce that flows up and down the Mississippi and up and 
down the St. Lawrence Seaway. The other problem with this is the new 
language also expedites the study, even though the Corps says they need 
more time to do so.
  I guess, in conclusion, there are two things: One is the egregious 
procedures that continue to give the public such a negative slant on 
how we do business--this bundling of bills, where we are forced to vote 
yes or no on the whole bundling, up or down, and we can't let our yes 
stand for one purposeful interest or another or a no stand due to 
bundling; second, we need to address these midnight procedures, this 
issue of ``slip it in there,'' without going through the regular 
process. This body of Congress, both the House and the Senate, need to 
return to regular process, where we bring an idea forward, it is worked 
through the committee, it is transparent to all who are looking at it, 
we give our yea or nay, and we move it through the system, rather than 
simply changing things in the dark of the night at the last minute, 
where we have no opportunity to amend it and no opportunity to address 
it.
  As we go forward with this, I am going to object on the basis of rule 
XXVIII. I don't know how it will all turn out, but I hope my colleagues 
will understand this is more than something that just affects Indiana, 
Illinois,

[[Page S4743]]

and the Great Lakes. This is something that affects the way we do 
business here. If we cannot enforce these rules, we will continue to 
follow these practices the American people have come to absolutely hate 
and think they have a dysfunctional Congress. We deserve better than 
this. I hope my colleagues will agree with that.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. BOXER. Before the Senator from Indiana leaves the floor, I wish 
for him to know I listened very carefully and I know his concern. I 
have spoken with Senator Durbin about it, and I hope we can work 
together. I do want to say this process where sometimes bills are put 
together is frustrating to everybody, and we do need to take a look at 
the way we do things. However, I do have some measure of sympathy for 
the leadership around here because it takes so long to get any one 
piece done.
  So I do agree. I don't like the fact that we cast one vote and there 
are three subjects. It is very difficult for the people at home to 
understand it. I also want to say to my friend--before I yield 3 
minutes of my time to Senator Sanders--to feel proud of the way we put 
together the Transportation bill. I think in that case, which is a huge 
policy bill, it was transparent and that what my friend complained 
about was something that was put in by the other body and said it is a 
must have.
  The truth is, up to that point, everything we have done was very much 
in the open, and I am very sorry my friend feels so negatively toward 
what we are about to do because in his State it is tens of thousands of 
jobs and in my State it is hundreds of thousands of jobs. It is 
thousands of businesses. It is going to mean a boost to this economy 
and a boost to the private sector. I wish to say to my friend, I 
understand his frustration, and I will do everything I can to help him 
on this issue.
  Mr. COATS. If the Senator would yield, I appreciate very much her 
saying that. I did commend, and I will again, the work the Senator from 
California and Senator Inhofe have done in bringing this bill forward 
in the right way. I know my friend is as sorry as I am that someone in 
the other body decided to violate the rule, injecting into all the hard 
work that has been done. I regret that. I hope in the future we can 
avoid this.
  I thank the Senator for her good words.
  Mrs. BOXER. I definitely share the frustration. At this time, I would 
like to yield 3 minutes of the remainder of my time to Senator Sanders.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Vermont.
  Mr. SANDERS. Mr. President, I thank the Chair for yielding. As a 
member of the Transportation Committee, I would like to congratulate 
Senator Boxer for her extraordinary efforts in pushing this bill 
forward. This is an enormously important bill that took a lot of hard 
work, and I commend her for the work she and her staff have done. 
Senator Inhofe and I have very little in common politically, but I also 
wish to applaud him and his staff for coming together on this issue and 
doing something that is extremely important and doing it in a 
bipartisan way.
  Anyone who drives in the State of Vermont or, for that matter, drives 
around America, understands, to a significant degree, our 
infrastructure is collapsing. In Vermont, we have dozens and dozens of 
bridges that are in need of repair. We have many hundreds of miles of 
roads that need repair. Our public transit system needs help. What this 
bill is about is a start toward rebuilding our crumbling 
infrastructure, our roads, our bridges, our public transit and, in the 
process, putting a significant number of people back to work.
  It is estimated this bill will save more than 1.8 million jobs 
nationwide in each of the next 3 years, and it will create 1 million 
new jobs through an expanded infrastructure financing program. What 
that means in the State of Vermont are thousands and thousands of 
decent-paying construction and other types of jobs, something we sorely 
need. So this bill is an excellent start. Does it go as far as it 
should? No, it does not. Compared to China, compared to Europe, our 
investments in infrastructure are minimal. When we invest in 
infrastructure, we make our country more productive, we put people back 
to work, and we make ourselves more internationally competitive. So I 
just want to say this is an important step forward, but we have more to 
do.
  Today, we are focused on roads, bridges, public transit--very 
important--but that is not the entire infrastructure. We have to pick 
up the issue on rail. We are falling further and further behind China, 
Japan, and Europe in terms of high-speed rail. We have to invest in 
rail and there are great jobs in doing that. We have to invest in our 
water systems and in our wastewater plants. We have to make sure every 
community in America has high-quality broadband as well as cell phone 
service. That is what infrastructure is about. We have not invested 
anywhere near the degree we should, and now is the time to get started.
  So this bill, which focuses on roads, on bridges, and public transit 
is an important step forward, and I wish to congratulate Senator Boxer 
and her staff, Senator Inhofe and his staff for their important work.
  With that, I would yield the floor.
  Mrs. BOXER. Mr. President, how much time do I have remaining?
  The ACTING PRESIDENT pro tempore. The Senator has 14 minutes.
  The Senator from California.
  Mrs. BOXER. Mr. President, I wish to thank my friend, Senator 
Sanders. He is a very active member of the Environmental and Public 
Works Committee. He is focused on jobs, jobs, jobs. He has looked at 
the green job sector. He has looked at the effect of what we do on the 
construction industry. I am ever so grateful to him. He also has been a 
very clear voice for the way to move this country forward by having a 
clean energy policy, which we are definitely going to be looking at in 
the days and weeks ahead. We are now at the moment where we are waiting 
to see whether our friends on the other side of the aisle will allow us 
to proceed to finish our work on three issues: One is flood control, 
one is helping to make sure student loan interest rates do not double, 
and the third and biggest one involves the transportation sector.

  We all know, whether we are Republicans or Democrats, our focus is on 
boosting this economy. This bill will do that like no other. In this 
Transportation bill we are talking about protecting 2 million jobs that 
are currently in place in this country in the construction sector and 
the transit sector. So these are the jobs that construction workers do 
on the highways, the freeways, the bridges, making sure our roads are 
in good shape and our bridges are not going to collapse because we have 
70,000 bridges that are deficient, and we know what happens when there 
is a horrible failure of a bridge.
  I know my ranking Member, Senator Inhofe, feels very strongly about 
this because he had an incident in his State where one of his 
constituents was actually killed by a bridge failing. We cannot sit by 
and allow the highway program and the transit program in this country 
to disappear. We have taken it up to the line.
  I am very grateful to Ranking Member Inhofe. I am very grateful to 
Chairman Mica and to Ranking Member Rahall for the work we have done in 
this conference. This is a bill that everyone can be proud of, whether 
they are Republican or Democrat.
  CBO has scored this, and it actually returns money to the Treasury. 
We have support from people who don't agree on most matters. I am not 
only talking about Senator Inhofe and myself, who do not see eye to eye 
on many issues; we have come together on this. Besides that, we see the 
AFL-CIO and the Chamber of Commerce walking hand in hand asking us to 
please pass this bill. So we have a few little holdups now, but I am 
very hopeful we can work through them.
  The highlights of this bill: Overall, jobs, jobs, jobs. Jobs in the 
private sector, businesses in the private sector. We are talking about 
leveraging a Federal program called TIFIA, which is going to mean, 
frankly, hundreds of millions of dollars that will go out the door to 
leverage funds at the local level as well as the private sector.
  As we look at our bill, we see a reform bill. We see project 
deliveries

[[Page S4744]]

speeded up from 15 years to 8 years without giving up the health and 
safety laws people deserve. We have not done away with any 
environmental law; we have just put deadlines in the law. We have put 
milestones in the law, and we have stated if people have a problem, let 
us know the problem and get on with it. If there is anything new--a new 
factor--we will look at that, but we cannot sit around and wait an 
average of 13, 12, 14, 15 years to get a project done.
  There are no riders in this bill. There are no environmental riders 
in this bill. I think that sends a good message to the public that we 
are focused on transportation. These other issues are going to be 
addressed, but they don't have to be addressed on this bill and become 
a target of a veto or a standoff between the parties.
  What did we do on bike paths? We have had a lot of controversy. 
People are saying we did away with the money for alternative 
transportation routes, or bike paths, called safe routes to school, 
called pedestrian walkways. No, we saved the same level of funding, the 
same percentage of funding, but we gave more flexibility to the States 
with their 50-percent share so if they have another pressing need they 
can use it for something else. Frankly, if the grassroots people at 
home are not happy with the State, they can let the State know that. 
For the first time, the other 50 percent goes to the local people. This 
is very important.
  We also have the RESTORE Act. This means those Gulf States that got 
hit so hard from the BP spill will be able to restore their areas. If 
they had economic damage, environmental damage, this will help. The 
money will come from the court settlement, and BP will then make those 
funds available. So it does not add a dime to the deficit.
  So we have a bill that doesn't add to the deficit. We have a bill 
that will boost this economy. We have a bill that is supported by 
conservatives and liberals, progressives and moderates. I think it is a 
great day. I am sorry there are a few issues that got added on that are 
disappointing to certain colleagues. Believe me, I want to work with 
them to help resolve those problems. But I have to tell my colleagues, 
when we write a bill of this scope, of this nature, we are going to 
have some of these issues. We will work on them.
  For my remaining time--how much time do I have remaining?
  The ACTING PRESIDENT pro tempore. The Senator has 7 minutes 
remaining.
  Mrs. BOXER. I wish to discuss the Supreme Court ruling. In a very 
fascinating ruling, the Chief Justice decided that the Affordable Care 
Act is constitutional. I am not going to spend a lot of time discussing 
why he said it and why they decided it. What I am going to talk about 
is what will happen if the Republicans have their way and this law is 
repealed.
  I want the American people to know--and I say this with no animosity 
at all--I am going to do everything I can to stop them from repealing 
it for a reason: The reason is the families in my State and all over 
the country who are getting the benefits of this law.
  Governor Romney says it is going to be something he is going to do on 
the first day--he is going to repeal the health care law, if he gets 
elected, day one. Let me tell my colleagues very clearly what will 
happen.
  There are 54 million Americans who are now getting access to free 
preventive services such as mammograms and immunizations, if they have 
private insurance. That is most of our people. They would no longer get 
free mammograms, free checkups--over and out. Fifty-four million 
Americans lose if Governor Romney and the Republicans repeal this 
bill--6 million of my people in California.
  My seniors, over 300,000, would no longer get help with their 
prescription drug benefits. Now they are getting help. They will then 
go back to choosing between taking their prescription drugs or eating 
dinner. I am sorry, I am going to stand in the way, if I can.
  Under Medicare, millions of seniors would lose access to free 
preventive services. Thirty-two million Medicare patients get these 
services for free, including cancer screenings and flu shots. Why on 
Earth would somebody or some party want to get up and say: I am 
repealing that?
  There are 105 million Americans who will once again face lifetime 
limits on their health insurance plans. If someone is diagnosed with 
cancer and they look at their plan, it says they are covered up to 
$250,000. That sounds like a lot of money. I can tell my colleagues 
now, that is not a lot of money for someone who is battling cancer. 
Now, suddenly, in a person's worst moments, when they are facing 
radiation and chemo, they have hit up against their lifetime limit. 
That will be gone.
  More than 6 million young adults, including 300,000 in my State, 
would lose their health insurance because now they have a guarantee. 
Because of the health care bill, they can stay on their parents' 
coverage until they are 26. Why would anyone want to repeal that? Ask 
them. They do.
  Insurance companies would no longer owe rebates to customers if those 
insurance companies spent too much on premiums and paid the CEOs 
exorbitant bonuses and paid hardly anything to help people with their 
health care. We are going to see 12 million Americans get back $1 
billion in rebate checks in August. They will stop that. They want to 
stop that.
  How about millions of children who are now getting coverage because 
they have a preexisting condition. Before this law, they couldn't. So 
if a child was born with a heart defect, even if it was something that 
could be controlled, they couldn't get insurance. We pity those 
families. I have had reports of people in my State crying tears of joy 
when the Supreme Court acted because they could not get insurance 
because the woman--this particular one--had a preexisting condition, 
and now she can get insurance.
  Because of the work of Senator Sanders--and I helped him with it--we 
have community health care centers across the country getting funding. 
So if a person has no insurance--or even if they have insurance--they 
can go to a community health center and, based on their ability to pay, 
get health care. That would be repealed.
  School-based health centers would be repealed. Training of our health 
care workers would be repealed.
  I will tell my colleagues, that is just what the benefits are today. 
In 2014, there will be a slew of new benefits. This bill, while not 
perfect--and we can fix the problems--is a good bill.
  Just remember that everyone in our country gets health care, but the 
difference is some of them walk into an emergency room having paid 
nothing for a premium, even if they are wealthy, and they expect us to 
pay the bill in the emergency room. With the approach that 
Massachusetts Governor Romney took, he said if a person is responsible 
and can afford it, that person has to buy a minimal health insurance 
plan. President Obama got the idea from Governor Romney. I call it a 
personal responsibility premium. Some people call it a tax. Some people 
call it a fee. I call it a personal responsibility premium because most 
of the people I represent buy health care coverage, and a few just say: 
You know what. I feel terrific. I will wait until something bad happens 
to me and then I will go to the emergency room. And they can all pay.
  That is what we have. We have the people who are responsible paying 
for the free riders. The idea that President Obama got was from then-
Governor Romney.
  So this is going to be a long election season, and there are going to 
be a lot of battles over health care.
  I hope we will pass the bill that is in front of us and take care of 
the construction sector and transportation. I hope we will take care of 
flood insurance and student loan interest rates. We can do that with 
one vote on a bill shortly, if we get permission to move forward. If we 
don't, we will be here all weekend or whatever it takes to get it done. 
I am not going to go home until this is done.
  I will also tell my colleagues--as we look at this health care 
battle, the lines are pretty clear. There are millions and millions of 
Americans who are getting benefits today. Why would anyone want to take 
away those benefits? Yet that is where we are in the debate. So I hope 
cooler heads will prevail.
  Let's get on with bringing this economy back. Let's allow this bill--
with a few corrections because we can always fix things that don't 
work--go forward. Let's stop the heated name calling. Let's make sure 
we work together, just

[[Page S4745]]

as we did on the Transportation bill. I believe this is a good moment 
for this Senate today. I hope we can get our work done, and then we can 
actually celebrate something before we start battling over health care.
  Let's celebrate and say to the construction sector: We need you to 
rebuild those broken roads, those broken bridges. We need you to make 
sure we get those transit systems up and running. Then, I honestly 
believe, the rest of these problems we will take up one at a time.
  Thank you very much, Mr. President. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. I ask unanimous consent to speak as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                       Honoring our Armed Forces

   Sergeant First Class Brad Thomas, Lieutenant Ryan Davis Rawl, and 
                Sergeant John ``J.D.'' David Meador, II

  Mr. GRAHAM. Mr. President, I rise to pay tribute to three fallen 
National Guard members from South Carolina who were killed in 
Afghanistan on June 20, 2012, in Khost Province. They were members of 
the 133rd Military Police Company who were serving on this duty. There 
are now 16 members of the South Carolina National Guard who have died 
in combat in Iraq and Afghanistan since 2003.
  With the July 4 weekend coming up, we are preceding one of our 
biggest holidays in America, and people rightfully will take some time 
off, I hope, to enjoy their families and friends and get away from work 
and have some family time. It marks a special event in our Nation's 
history: The founding of our Nation through a declaration of 
independence that was not just words but resulted in men and women 
fighting to achieve our independence.

  Here we are a couple hundred years later and we are still fighting. 
My belief is, as to the radical Islamists who would kill us all if they 
could, it is better to fight them over there so we do not have to fight 
them here.
  Afghanistan was the place the Taliban took over after the Russians 
left and invited al-Qaida into the country, with bin Laden as their 
honored guest. He had sanctuary there and was able to plan the attacks 
of 9/11 from sanctuary provided to him in Afghanistan.
  Our goal is to never let Afghanistan become a sanctuary for al-Qaida 
or other terrorist groups. Thus, we are in a long struggle. It has been 
10 years. It has been hard, but we are making progress. The Afghan Army 
is getting better and stronger. The police are getting more proficient 
at their job. We are going to be winding the war down in 2014. But I 
think we can do it in a fashion to make sure Afghanistan remains stable 
and our national security interests are protected.
  But to make all those things possible--the weekend we are going to 
enjoy, and the holiday season, and denying terrorists safe havens--some 
of us have to leave our families and go off and fight this war.
  SFC Brad Thomas of Easley, SC, was killed in an attack on June 20. He 
was a graduate of Travelers Rest High School and attended Greenville 
Technical College. He was a member of the 133rd Military Police Company 
of the South Carolina Army National Guard.
  He is survived by his wife Jana and a son Cayden, a brother and two 
sisters. I know the family is devastated. You are in our prayers, and 
God bless you and give you the healing and understanding during this 
tough time.
  To SFC Brad Thomas, you died in the service of your country, and you 
will be missed.
  LT Ryan Davis Rawl of Lexington, SC, was killed in the same attack. 
He was a first lieutenant in the 133rd MP Company. He graduated from 
Lexington High School. He was a graduate of the Citadel. He is survived 
by his wife Katherine and their daughter Callie and their son Caleb.
  I just want to acknowledge to Katherine, who interned in our office, 
that you are certainly in our prayers. You did a great job for us, and 
anything we can do for any of these families in South Carolina, we 
will. We very much pray for you and your family.
  Sgt John ``J.D.'' David Meador, II, graduated from Lexington High 
School. He was a member of the wrestling team and was a wrestling 
coach. He was a member of the same MP Company. He is survived by his 
wife Christy and three daughters: Olivia, Brianna, and Elana. To 
Christy and her family, you will be in our prayers.
  This will be a tough weekend in South Carolina. We are going to have 
three funerals.
  To General Livingston and the National Guard family, you are 
certainly in our prayers. This is a tough blow for an MP company to 
have three people killed in one attack. So to all the members of that 
company, we will do our best to take care of your families while you 
are gone.
  We have had a big argument about health care and about 
transportation, and that is great--democracy in action. What is the 
right decision for the Court to have made in the health care case? Is 
this a good transportation bill? I appreciate in a bipartisan fashion 
trying to find a solution.
  But I just wanted to take a few minutes before going to the holiday 
weekend and remind us of one thing we do have in common: Our freedom 
depends on people willing to fight for it, and the one thing about this 
war--whether you agree with the war in Afghanistan or not--virtually 
every American, regardless of political persuasion, has shown an 
appreciation for the troops and their families. I cannot thank Members 
of Congress enough for never losing sight. No matter how they feel 
about this war, we all appreciate those who fight it, and we all suffer 
and mourn for those who lose their lives in this cause.
  I believe this is a just cause. I believe these men who joined the 
military voluntarily and left their families to go to Afghanistan were 
doing so in the most noble tradition of the country--that they were 
trying to make our families safer, my family safer, and they died in 
the service of their country. And that is a life well lived. They died 
far too soon. They left behind young children, but they will never be 
forgotten.
  May God grant them eternal rest and peace. May God bless and provide 
understanding and healing to the families left behind. And may, as 
Americans, we never forget that our freedom is dependent upon a few of 
us being willing to go to faraway places, with strange sounding names, 
and risk never coming back.
  Mr. McCAIN. Mr. President, if the Senator will yield, first of all, I 
thank the Senator for his eloquent statement on behalf of those who 
have served and sacrificed.
  Since we will all be spread around at different places over the 
Fourth of July and celebrating our independence, I think those are very 
appropriate and moving words.
  I am reminded of the saying at the battlefield, written:

     They shall grow not old, as we that are left grow old:
     Age shall not weary them, nor the years condemn.
     At the going down of the sun and in the morning
     We will remember them.

  Mr. President, I ask unanimous consent for a brief colloquy with the 
Senator from South Carolina.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                             Sequestration

  Mr. McCAIN. Mr. President, we are also facing another crisis as far 
as the military is concerned; that is, the looming prospect of 
sequestration. The Secretary of Defense has stated that sequestration 
would have a ``devastating impact'' on our national security. We are 
talking about layoffs, and some estimates are of as many as 1 million 
workers in the defense industry. We are looking at unknown effects of 
the strategic thinking that goes on as we plan to defend our Nation's 
security--for example, our shift in emphasis from Europe to Asia 
Pacific, which requires significant air and naval assets amongst other 
things.
  I would ask my colleague--I am not sure the American people are fully 
aware of the effects of something that is supposed to take effect, as I 
understand it, at the beginning of the next fiscal year, which would be 
the beginning of October 2012. Is that a correct statement, I would ask 
my colleague?

  Mr. GRAHAM. Yes, it is.
  Mr. McCAIN. So we are asking the Defense Department to plan on what

[[Page S4746]]

our force structure will be, what our mission will be, what our 
capabilities will be, beginning the first of October, and all I can see 
so far is total gridlock on this issue.
  Now, if somebody wants to say it is our fault because we refused to 
``raise revenues'' or because of the other side's insistence on that 
and a resistance to spending cuts, I say to my colleague, I do not 
think people understand we still live in a very dangerous world. The 
Senator just talked about those who have already sacrificed. Don't we 
owe it to them and their families to stop something that all of us 
agree would have a catastrophic impact on our ability to defend this 
Nation?
  Isn't it true--would the Senator agree--that it is time we sat down 
and started having serious negotiations, because there is no greater 
responsibility the Congress and the people's representatives have than 
to defend the security of this Nation?
  I know the Senator from South Carolina--before I ask him to answer--
traveled around his State, which I intend to do, to the various 
military installations and talked about what would happen with this 
sequestration. We are talking about a very limited period of time. We 
are about to go out of session. We will be in during the month of 
July--most of the month of July--and probably the month of September. 
End of story.
  Mr. KYL. Mr. President, might I ask my colleague to yield, if I could 
add one other question to his very important question for my colleague 
from South Carolina.
  I have a recollection that during one of the hearings the Senator 
from South Carolina specifically asked the Secretary of Defense what 
the consequence would be, and I recall he had a very dramatic response. 
I wonder if the Senator might share that with us as well.
  Mr. McCAIN. Mr. President, I ask unanimous consent that Senator Kyl 
be included in the colloquy.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRAHAM. Well, one, I hope my colleagues will stay around for a 
minute or two because this is an important topic to be talking about.
  Let me put this in the perspective of what we are trying to do and 
what we are trying to avoid. We are about $16 trillion in debt. There 
is probably no stronger defense supporters in the Congress than Jon Kyl 
and John McCain.
  The Senator just spoke of war. John McCain has seen his fair share of 
war. I think he understands as well as anybody in this body--probably 
better than most--what happens in war. People get hurt and people get 
killed and anybody who has been in the military is no fan of war. But 
the goal sometimes is to make sure those who are asked to fight a 
particular war can fight it quickly, overwhelmingly, win, and come 
home.
  What we are doing is trying to get out of debt. The three of us are 
pretty big defense hawks, but we have all agreed the Pentagon has to 
reduce their spending too. I think all of us--particularly Senator 
McCain--believe there is a lot of waste in the Pentagon and that we 
could achieve $50 billion in savings over the next decade by reforming 
the way the Pentagon does business and, quite frankly, do more with 
less. So count us all in--the three of us--for reducing defense 
spending to help get us out of debt.
  But here is what has us all upset. The supercommittee that was formed 
by the Budget Control Act had a mission of cutting $1.2 trillion over a 
decade to help get us out of debt. That is a pretty small number given 
what we are going to spend over the next 10 years. But the committee--
Republicans and Democrats--could not find common ground as to how to 
cut $1.2 trillion over the next decade. There was a penalty provision 
in the law, and it said that in the event the supercommittee failed, we 
would cut $1.2 trillion over the next decade as follows: $600 billion 
out of the Defense Department, $600 billion out of the rest of the 
government.
  If that penalty kicks in, then we will have cut $1 trillion out of 
the Defense Department over the next decade, blindly, across the board. 
Every account gets affected.
  What did Secretary Panetta say? He said: Sign me up for $450 billion. 
I think we can get there. We will lose some capability, but we will be 
OK as a nation. We could fight Iran and win if we had to.
  Then I asked him: What if we did $1 trillion over the next decade--if 
we overdoubled what you are trying to cut? He said: We would be 
shooting ourselves in the head as a nation. We would not have the 
ability to go in and take out the nuclear program in Iran because the 
weapons we need we could not maintain and afford.
  When it comes to personnel costs, we are reducing the Army by 80,000 
people under the $450 billion plan. If we do sequestration on top of 
that, I say to Senator McCain, we are taking another 100,000 people out 
of the Army. Under sequestration, the Navy would be down to a little 
over 200 ships. We would have the smallest Navy since 1915, the 
smallest Air Force in the history of the country, and the Army would go 
back to 1940 levels.
  To my colleagues, do you believe the world has gotten that much safer 
that we do not need a Navy bigger than in 1915, given the threats we 
are facing from Iran, China, North Korea? Do you think now is a good 
time for the country to basically disarm, given the threats we face 
from radical terrorism throughout the whole globe?
  So here is what we are going to do, and our congressional leaders 
need to be on notice. About 1 million people would lose their jobs if 
we put these cuts in place, and we would destroy the defense industrial 
base that provides good jobs to the economy and keeps us free and safe 
by giving our people technology better than the enemy has.
  Three National Guardsmen were killed in June in Afghanistan. We have 
improved the National Guard. But when we first started this war, 
National Guard units were leaving to go to the fight with inferior 
equipment. They did not have armor. So if we do sequestration on top of 
what we are already trying to cut in the Defense Department, we will 
destroy the finest military in the history of the world at a time we 
need it the most.
  This is a body known for doing some pretty dumb things. This would be 
the prize. So what Senators McCain, Kyl, and myself are trying to do is 
avoid sequestration before the first of the year so our defense people 
can plan. If we do not set this aside before the election, that is 
political malpractice. I thank Senator McCain and Senator Kyl for their 
leadership.
  Mr. McCAIN. I wish to add--I note the presence of the Senator from 
New Hampshire who has also played a very key leadership role, including 
working with the mayors of every city in America, who have issued a 
resolution about their concern about this issue.
  I wish also to state to my friends and colleagues that I know the 
chairman of the Armed Services Committee, whom I have had the 
opportunity of working with for 25 years, the Senator from Michigan, 
also shares our concern.
  I hope we could at least get some of us together who have been 
involved with these issues of national security for so many years on 
both sides of the aisle, that we could reach some kind of an agreement. 
We know additional sacrifices have to be made when we are facing a $16 
trillion deficit. But to take the overwhelming majority--well over 50 
percent of these reductions--out of what is about, I believe, 12 
percent of our spending is obviously not appropriate.
  One other point. If the President of the United States shares the 
concern that the Secretary of Defense shares--catastrophic, impossible 
to plan on, so draconian that it would cripple our ability to defend 
this Nation; all of those are statements which the Secretary of Defense 
has made--I would argue that it would be appropriate, and I would 
sincerely ask that perhaps the President of the United States also be 
involved and members of his administration or charter members of the 
administration to sit down with us to see how we could resolve this.
  So far the executive branch has not been involved in these efforts, 
with the exception of the Secretary of Defense, who has told us in the 
most graphic terms the devastating consequences. Again, I want to point 
out to my colleagues: You have to plan, especially in national defense, 
what weapons you are going to procure, the number of people you are 
going to maintain in the military, what those missions are going to be.
  All of those right now, if held in abeyance in the Pentagon as far as 
planning is concerned, cannot have a

[[Page S4747]]

great deal of validity if we are staring at sequestration and these 
draconian reductions.
  Mr. GRAHAM. Would the Senator yield?
  Mr. McCAIN. Yes. And I know our most eloquent member has arrived on 
the floor, not to mention other attributes we are lacking.
  Mr. GRAHAM. I would like all three Senators to comment on this 
proposition. You have just challenged the President, who is the 
Commander in Chief, by the way, to fix the problem that your Secretary 
of Defense has said would be most devastating to our ability to defend 
ourselves. He said it would be catastrophic, it would be draconian, 
there is no way to plan for it, we would be shooting ourselves in the 
head. Mr. President, you are the Commander in Chief. When your 
Secretary of Defense and every general under your command is telling 
you and the Congress, you need to fix this before it gets out of hand, 
why are you not asking us, as Republicans and Democrats, to answer the 
call of the Secretary of Defense? You are the Commander in Chief, my 
friend. It is your job to make sure our military has what it needs to 
go fight wars that we send them to fight and protect our Nation.
  But that is not enough. It is also our job as Members of Congress to 
take care of those who serve. So to our Republican and Democratic 
leader: Why do you not convene a group of Senators? And to our leaders 
in the House: Why do you not get a group of House Members, and ask us 
to come up with a plan to do at least one thing, avoid the consequence 
of sequestration for 1 year in 2013, to take the monkey off their back?
  I am willing to meet our Democratic friends in the middle to find a 
way to offset the $110 billion in defense and nondefense spending. But 
to our leaders and to the President, if you think the rest of us are 
going to sit on the sideline and let this matter be taken up in 
lameduck when it becomes a nightmare for the country, you can forget 
it. So we are challenging our leaders and the President to get a group 
together to fix this.
  I ask Senator McCain, do you think that is a good idea?
  Mr. McCAIN. I know it is the only way we are going to solve this. I 
ask unanimous consent that the Senator from New Hampshire be included. 
I know the Senator from Tennessee, our friend Senator Corker, is 
waiting. But I think my friend from South Carolina, as usual, has 
stated the problem and a solution here. The problem is, we face a 
devastating impact on our national security. The solution is for our 
leaders and the President--if possible--to convene a group of Senators, 
whether it includes us or not is immaterial, on both sides of the 
aisle, on both sides of the Capitol, to sit down and work this out so 
we can avoid the sequester.
  I will take responsibility for sequester if that is what is 
necessary. But I also say that without concrete, significant, and 
meaningful action to cause this sequester to be prevented, we are 
risking the lives of our young men and women who are serving in the 
military. I do not know of a greater responsibility that we have.
  I ask the Senator from New Hampshire if she agrees.
  The PRESIDING OFFICER (Mr. Blumenthal.) The Senator from New 
Hampshire is recognized.
  Ms. AYOTTE. I join with my colleagues over the concern, deep concern 
that keeps me up at night about sequestration, because we cannot do 
this to our national security. Both sides of the aisle have to come 
together. We need leadership from our Commander in Chief on this issue.
  To put it in perspective, I asked the Assistant Commandant of the 
Marine Corps what the impact of sequestration would be on the Marines. 
Do you know what he told me? That the Marine Corps of the United States 
of America would be unable to respond to one major contingency. Talk 
about putting our country at risk and putting ourselves in a situation 
where unfortunately there are still so many risks around the world that 
our country needs to be protected from. To think that our Marine Corps 
would not be able to respond to one major contingency. It is 
outrageous. It cries for bipartisan leadership on this issue, 
particularly leadership from our Commander in Chief.
  To put it in perspective, it is not just an issue of our national 
security. You would think that would be enough to bring people to the 
table. But we are talking about jobs across this country. The National 
Association of Manufacturers has estimated it would be nearly 1 million 
jobs; George Mason University, the same.

  To my colleagues, looking around here, polling some States in terms 
of the estimate of job losses: 24,000 for Alabama. When we look at a 
State like Missouri, 31,000, when we look at a State, for example, like 
Florida, 39,000 for Florida. This is an issue that will hit every State 
in this Nation.
  But, most importantly, what I am concerned about is it is going to 
hit our military in a way that we break faith with our troops. In fact, 
General Odienero of our Army has said he would have to cut an 
additional 100,000 troops from our Army on top of the reductions we are 
making right now, approximately 72,000, and 50 percent of it would have 
to come from the Guard and Reserve.
  You think about the important function not only of protecting our 
country, we could not have fought in Afghanistan or Iraq without our 
Guard and Reserve. I am the proud wife of someone who served in the 
Iraq war. I can tell you, it is not only the function that our Guard 
and Reserve play in terms of protecting us overseas, but they also 
perform a very important homeland function. Every Governor in this 
country will be deeply concerned if we are going to diminish our Guard 
and Reserve. So this is an issue that cries out for leadership from 
both sides of the aisle. I look forward to working with my colleagues 
on this now. It cannot wait until a lameduck session. We cannot put our 
national security in the balance, and nearly 1 million jobs at issue, 
to a lameduck session. This is something we should resolve right now.
  I appreciate that my colleagues have come to the floor to talk about 
this issue today. We must get this done on behalf of the American 
people and our men and women in uniform.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I think Senator Corker from Tennessee was 
on the floor before me. I do not know if we are going back and forth or 
how long he expects to speak. I wish to yield to him to see what his 
plans are.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. CORKER. Mr. President, I thank the Senator from Illinois. I am 
going to speak for about 2\1/2\ to 3 minutes if that is okay.
  Mr. DURBIN. I would be happy to yield to the Senator from Tennessee. 
I ask unanimous consent that I follow him.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Budget Control Act

  Mr. CORKER. Mr. President, I appreciate the comments of my friends 
from New Hampshire and Arizona and South Carolina regarding the 
sequestration. I will say the reason we are in this sequestration mode 
is that six Republicans and six Democrats could not figure out a way, 
over a 10-year period, to cut $1.2 trillion in spending out of $45 
trillion that is going to be spent by the Federal Government during 
that period of time. So I do hope there is a way to resolve that. But I 
am here to speak about something related, but in some ways very 
different.
  Today we are getting ready to vote on some legislation dealing with 
flood insurance, dealing with student lending, dealing with highways. 
And these are all very popular programs.
  What people who are listening, who may be paying attention to what 
the Senate is doing today, what they may not know is that for the third 
time, in a bipartisan way, this body is getting ready to spend more 
money than was deemed by the budget that was ultimately created by the 
Budget Control Act last year when the country almost shut down trying 
to save a mere $900 billion over the next 10 years. So a vote today for 
this piece of legislation is basically a vote to say the Senate cannot 
be entrusted to carry out what it laid out last August to keep us from 
spending money we do not have. I know there are going to be some budget 
points of order that will be brought forth at some point later today.

[[Page S4748]]

  I want to say as one Senator from Tennessee, it continues to be 
unbelievable to me that this body does not have the courage, does not 
have the will, does not have the discipline to even live within a very 
modest budget that was laid out last August. Today I am certain we are 
going to pass legislation that spends billions of dollars more than we 
agreed to in the Budget Control Act and especially the deemed budget 
that came after that, the deemed budget that was put in place as a 
result of what we passed last August.
  I would say all those who vote for this today are basically saying we 
do not have the discipline to live within our means. The problems our 
Nation faces fiscally are only going to get worse. I think this is a 
very sad day for our country if that, in fact, is what happens within 
the next 2 or 3 hours on the Senate floor.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.


                             Sequestration

  Mr. DURBIN. Mr. President, I thank the Senator from Tennessee for his 
comments. I share his concern about our deficit. I was a member of the 
Simpson-Bowles Commission, voted for the commission report, bipartisan 
effort to reduce the deficit by $4\1/2\ trillion over 10 years. I think 
we set in place a description, maybe a guidepost for how we can do 
this.
  I would agree with him that we need to take care in the money that we 
spend now which will add to the deficit, though I have to say my 
understanding is this transportation bill is paid for. There are 
revenue sources that are part of this. I know the student loan 
continued decrease in interest rates to 3.4 percent for student loans 
is paid for. I believe the changes within the Flood Insurance Program, 
which is part of this package as well, the Republican leader spoke to 
that this morning, reforms in that program will move it closer to 
sustainability and solvency. It is not where it needs to be, but it is 
moving closer.
  But I want to address, if I can, for a minute what has been a topic 
on the floor this morning about the planned cuts in the Department of 
Defense. Let me say at the outset what we all agree upon. No. 1, we 
never, ever want to shortchange America's security, never shortchange 
our men and women in uniform.
  A nephew of mine who serves as a doorman in the gallery recently 
returned from 1 year in Afghanistan. We were sending packages and were 
worried about Michael every day. He got home safely. That is happening 
over and over across America. I wanted my nephew to have all he needed 
to come home safely. I think everybody feels the same when it comes to 
the Department of Defense.
  Let's step back and look at this deficit debate. Allow me to put it 
into perspective for a moment. The last time we balanced the Federal 
budget was not in the 19th century, it was about 11 years ago. It was a 
time when William Jefferson Clinton was President, and for 3 years we 
had a balanced budget under a Democratic President--3 years.
  When we reach a balanced budget, if you said, ``What do you have in 
terms of spending and revenue?''--they are the same--here is what we 
found: Revenue and spending both equaled 19.5 percent of America's 
gross domestic product. The gross domestic product is the sum total of 
the goods and services produced in America every year. It changes and 
grows. The last year we were in balance, taxes equaled 19.5 percent of 
our GDP and Federal spending equaled 19.5 percent. We had a balanced 
budget.
  Now we are in deep water. We saw the accumulated debt of the United 
States more than double under President George W. Bush, and it 
continues to grow, because of the recession, under this President. Our 
annual deficits are over $1 trillion and are unsustainable. We borrow 
40 cents for every dollar we spend, whether we are buying military 
equipment or paying for food stamps. That is unsustainable.
  But now that we know there was a time when we were in balance, it is 
fair to say: What happened to spending since this budget was in 
balance? If you do it in constant dollars so there is no monkeying 
around with numbers, here is what happened since we were last in 
balance in our budget: Domestic discretionary spending equals student 
loans, medical research, transportation--all of the different things 
that don't fit into the Department of Defense. The spending in those 
areas since we were last in balance has been flat, with no increase.
  What about spending for entitlement programs--Medicare, Medicaid, 
programs such as those--and veterans' care? What has happened to that 
since we were last in balance? Since we were last in balance, the 
spending on entitlement programs has gone up 30 percent. Why? The baby 
boomers have arrived; 10,000 people a day reach the age of 65. They 
paid into Social Security and Medicare their whole life, and they show 
up now and say: It is our turn. Because of that, entitlement spending 
has gone up.
  Let's look at the third part of the budget, which was addressed by my 
Republican colleague this morning--defense spending. What has happened 
to defense spending since the budget was in balance? Domestic 
discretionary flat; entitlements 30 percent. As of this year's budget, 
defense spending will have risen 73 percent since the budget was last 
in balance.
  We created a supercommittee, and Senator Kerry of Massachusetts, who 
is here, was a member. They said: Let's find ways to reduce the deficit 
by $1.2 trillion over 10 years. They tried. I am sure Senator Kerry 
will speak to that effort. At the end of the day, they could not reach 
a bipartisan agreement on how it would be done. The law we passed said: 
If you cannot reach agreement, we are going to do it automatically. We 
are going to take $500 billion out of defense and $500 billion out of 
nondefense spending. That is what this is about. People are coming to 
the floor and saying that we cannot take another $500 billion out of 
defense spending.
  I will tell you that I think that is a lot to be taken out in light 
of what we have already anticipated we are going to reduce in spending. 
I think it will cause some serious problems. But I reject the notion 
that that $500 billion, if it is taken out of domestic discretionary, 
won't have equally horrible results.
  So I say to my friends on the other side of the aisle, when you had a 
chance in the supercommittee to deal with spending cuts of a lesser 
amount or deal with revenue, closing tax loopholes, you walked away 
from it. Now you are complaining that we may end up cutting defense 
spending.
  Incidentally, if the sequestration number went through--the 
additional $500 billion in cuts over the next 10 years--it would bring 
the amount of money we spend on defense to the same percentage of the 
GDP as it was when the budget was in balance.
  So my friends who are speaking for national defense, I join you, but 
I also speak for investments in America when it comes to education, 
innovation, and infrastructure. That will help our economy grow. And 
sequestration on the domestic side is unacceptable, from this Senator's 
point of view, as well.
  We clearly need to get beyond this and talk about an honest answer to 
reducing the deficit. An honest answer, going back to Simpson-Bowles, 
puts everything on the table--everything. To my friends on the other 
side, I say that it puts revenue on the table, and it must. It puts 
entitlement programs and spending cuts on the table, and it must. That 
is the only honest way to address this issue. To pick it off and say 
that we are going to take the one area that has grown in spending by 73 
percent and ignore it and then have them say that we don't touch 
revenue leaves two possibilities: If we are going to do anything about 
the deficit--deeper cuts in programs such as student loans, medical 
research, or cuts in Medicare--that is what it comes down to. They are 
hard choices, right? I think the Bowles-Simpson approach of putting 
everything on the table is the right approach.
  I urge my colleagues on both sides to take this pain that we are 
facing December 31 and turn it into an opportunity to work on a 
bipartisan basis to reduce this deficit.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.


                         Surface Transportation

  Mr. LEE. Mr. President, I stand to raise a concern I have regarding 
the conference committee report to accompany H.R. 4348.

[[Page S4749]]

  Pursuant to paragraph 9 of rule XXVIII of the Standing Rules of the 
Senate, we are supposed to have adequate notice of a report like this 
before we have the opportunity to vote on it. The rule states:

       It shall not be in order to vote on the adoption of a 
     report of a committee of conference unless such report has 
     been available to Members and to the general public for at 
     least 48 hours before such vote.

  The current version of the committee report was filed, as I 
understand it, at 8:07 p.m. last night. It is not even close to the 48 
hours required notice.
  What we have, ultimately, when we look at this, is the fact that we 
have a highway bill that was sent to conference, but it came back from 
closed-door negotiations with a student loan bill and also with a flood 
insurance bill attached to it. We were neither given the chance to 
debate nor to amend these provisions before they came to the floor. Now 
we are approaching a vote on that.
  We did not provide our fellow Senators or the American people with an 
adequate opportunity to read the 596-page conference report, which is 
required by our very own rule. This is somewhat reminiscent of a 
statement made a few years ago by then-Speaker of the House Nancy 
Pelosi when, speaking to Members of her body regarding the passage of 
the Affordable Care Act, she said:

       We have to pass the bill so that you can find out what's in 
     it.

  This is one of the problems we have in Washington of which the 
American people are becoming increasingly aware. It is a problem that I 
think we need to address. Time and again, we have a problem in which 
the Senate waits until the day before a holiday or the day before a 
scheduled instate work period before bringing something to the floor 
for a vote--without following the Senate's own rules, which are 
designed to promote and protect the openness and transparency of the 
legislative process. This is a troubling trend and one we should seek 
to avoid whenever and wherever possible.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. Mr. President, currently Congress has about a 10-percent 
approval rating. One of the reasons is that we don't even obey our own 
rules.
  For goodness' sakes, this is a 600-page bill. I got it this morning. 
Not one Member of the Senate will read this bill before we vote on it. 
We are going to vote on this in the next 30 minutes. I, Senator Lee, 
and others will object to this. We will have a point of order that our 
own rule says it has to be posted online for 48 hours. It is 600 pages, 
and nobody will read it. No wonder our approval rating is 10 percent. 
Nobody knows what we are voting on. In fact, provisions were stuck in 
this bill last night that have nothing to do with any of these bills. 
They have been stuck in and we are just now discovering it. I passed 
two Senators in the hall who are trying to get something out of this 
bill that affects their States, which they found out about just minutes 
ago. Nobody would have known about it if they had not found out about 
it.
  There are three bills in question here: transportation, student 
loans--on the student loan bill, originally we had loans at 6 percent, 
and it was somehow bringing in money to the Treasury. We were using 
that money to pay for ObamaCare. Now it is at 3 percent, and that money 
is gone. Where is the money to pay for ObamaCare? We have a shell game 
up here. We say one thing will pay for it, and now this will pay for 
it--the money disappears.
  Now they are saying they are going to pay for this by taking money 
out of pensions. Raise your hand if you think it is a good idea to 
underfund pensions more. Over half of the pensions in this country are 
technically insolvent because they don't have enough money to pay for 
them. Is it a good idea to have less money go into workers' pensions to 
pay for a student loan program?
  I have a bill in Congress that says we should read the bill before we 
pass it. We should wait 1 day for each 20 pages, to be given time to 
read 600-page bills. At the very least, we ought to adhere to our own 
rules. They say it should be posted online at least 48 hours. Forty-
eight hours is still a challenge to find out everything in here. Do you 
know how long the Federal Register is--55,000 pages, which is added to 
annually. When you read this, you have to refer to the Federal 
Register, which is hundreds of thousands of pages, to find out what 
they stuck in this bill in the dead of night. This isn't the way we 
should operate.
  The American people want to know why do we say the government is not 
going to do something for 3 days. What were they doing the previous 3 
months?
  The other side hasn't produced a budget in 3 years. That is against 
the rules. The rules of the Senate say you must produce a budget, and 
they didn't do it for 3 years. When we presented them with a budget 
that we wrote for them, nobody voted for it, and zero on the other side 
voted for their own President's budget.
  How are we going to compromise if they are not showing up for work? 
How are we going to get anything done if they don't obey their own 
rules?
  I will raise a point of order in the next hour that says that we have 
broken the rules of the Senate, and I will ask them to vote on it. I 
fully expect that the Parliamentarian will rule in our favor. We will 
see. The other side will simply close their eyes to the rules, and they 
won't care what the Parliamentarian says, and they will overturn this 
by saying: We are the majority, and we deem it so. We are the majority, 
and we don't care what is in the bill or to take time to read the bill; 
we just deem it so.
  I think this is why the American people are unhappy with what is 
going on here. I object strenuously. I will vote against this, and I 
will raise a point of order that says we should read the bill before we 
pass it.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank Senator Paul for raising these 
issues. We are mismanaging the American people's money. It is good to 
see Senator Lee, who just spoke, and Senator Paul, both new Members of 
the Senate, who have been out talking to the American people and made 
commitments that they are going to work to try to improve the process 
here. I celebrate their activity, their vigor, and their determination, 
and a lot of others feel the same way in our body.
  Shortly we will be moving a cobbled-together bill. An attempt will be 
made to accomplish this. I expect budget points of order and another 
point of order to be raised.
  I want to share some thoughts about how it is we do business and some 
of the efforts that are not legitimate as we go about our business and 
are dangerous to the financial health of America.
  Let's take what we call the LUST fund. I know it is an odd name. The 
true name of it is the leaking underground storage tank fund. People 
who have them have to pay fees, and it goes into a fund. The idea of 
the fund is to be available when cleanups need to be done. When the 
company or other companies have gone bankrupt and there is no money, 
this fund will pay to clean up the waste. Maybe it makes sense. It has 
been operating for quite a number of years. It has run up a surplus. 
That surplus is in the LUST trust fund--leaking underground storage 
tank fund--and where does it go? What do you do with that money?
  The Treasury of the United States is spending more money every year 
than it takes in. This year we will spend approximately $3.7 trillion. 
We take in about $2.4 trillion, and we have a $1,300 billion deficit. 
That is how much we are spending. We spend around $3.7 trillion and are 
taking in about $2.4 trillion, and we have about a $1.3 trillion 
deficit this year--the fourth consecutive year that we have had almost 
a $1,000 billion deficit. We will have a big one again next year 
because we are systematically overspending.

  But let's look at this fund--it has some real money in it, a number 
of billions of dollars--and what happens to it. Well, when the 
government spends more money than it takes in, it takes the money from 
the LUST fund. Well, how does it get it? It borrows it. So there is 
actually a debt instrument from the United States Treasury to the 
trustees or the holders or managers of the LUST trust fund, and they 
have loaned the money. They do not need it today, so they loan it to 
the government so they can spend it. And it has been borrowed and has 
been spent.
  The assets in the LUST fund are nothing more than debt instruments

[[Page S4750]]

from the U.S. Treasury. But on the books, it appears this LUST fund has 
assets. I guess in a sense it does. It has U.S. Treasury notes. So the 
people looking around to spend money and to try to meet the demands of 
our constituents--to build highways in this case--decided they could 
take that money.
  And you know something, it does not score as an expenditure in that 
fashion. It is an odd way this is done. It is seen as found money that 
they can go over and spend. But where does the money come from? The 
money is not in the fund, remember? The fund holds Treasury bills. But 
the highway trust fund doesn't want Treasury bills, it wants money that 
can be spent. So what happens is the U.S. Treasury, which has been 
borrowing money from another government agency and giving a debt 
instrument in return, has to come up with the money now. It is going to 
be spent. It is going to be taken out of the trust fund. So where do 
they get the money? They convert an internal debt to an external debt.
  The only thing they will do is borrow more money. So it will be this 
many billions of dollars more than $1.2 trillion or $1.3 trillion that 
we have. The debt is converted to a public debt, and somebody in China 
or in Japan or in New York will loan money to the government and they 
will use that money to pay the highway trust fund with it.
  You see how circular that is? It allows the money to be double 
counted. And that is actually what happened with President Obama's 
health care bill. That $400 billion was funded this way. Social 
Security still has a surplus. Although it has been drawn down, it still 
has a surplus in its account--or Medicare does. So the Medicare 
trustees raise Medicare taxes, they cut Medicare benefits, and they 
save $400 billion, And that would be money of the Medicare and the 
trustees. It is their money. But what happened with it? Under the 
conventions of accounting, the money was available to be spent by the 
U.S. Treasury, and the U.S. Treasury then would spend it on the new 
health care bill.
  The Congressional Budget Office Director, Mr. Elmendorf, wrote me a 
letter the night before the bill passed--Christmas Eve--and he said 
this is double counting the money. You can't simultaneously count it as 
making Medicare better and providing new money to fund the health care 
bill. Four hundred billion dollars on the night before the vote he 
announces this is double counting. If a private business were to do it, 
they would be in big trouble, I suggest. They might be sued for fraud. 
They would be sued for fraud.
  So the money was done in that fashion, and the way it happened was 
Mr. Elmendorf said it is double counting the money. You cannot 
simultaneously benefit Medicare and fund a new health care program, 
although the conventions of accounting might suggest otherwise. So the 
real smart financiers, what did they do? They figured out how to use 
the conventions of accounting in a way that obscured the fact they 
didn't have the $400 billion and that it was, in truth, borrowed money.
  Mr. President, I see my colleagues on the floor, and I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, I just have a couple of comments to make 
for clarification purposes.
  First of all, I don't think anyone is going to question my 
conservative credentials over the years I have been here. I have been 
really offended by a lot of the things that have happened structurally 
in this institution, over in the House, but so far as this bill is 
concerned, let me clarify a couple of things.
  It sounds good to stand up here and say we have only had a matter of 
minutes to look at something that is 500 pages. We have had this bill 
for a long time--for several days. We have had it and gone over 
everything. On the bill we sent from the Senate to the House, it is 
essentially the same thing.
  I didn't agree when they added the two provisions on student loan and 
flood insurance. I didn't agree with that. Everyone knows those issues, 
but I don't think they should have been on here. Nonetheless, we didn't 
have any control in this body over that. But as far as the provisions 
of the bill are concerned, these provisions we have seen. And everyone 
who has spoken against it has been there when we have talked about the 
great reforms, and I have commented several times that I thought one of 
the problems was we did too good a job because we had too many reforms. 
But when it got over to the House, where they are inclined to have more 
reforms there, they had to start from a base where we had done a good 
job. Streamlining and enhancements and all those things are in it.
  The only thing I can say, from a conservative perspective, is we have 
seen this bill. We have lived with this bill, not just hours but for 
days, and actually for weeks, the basic provisions of the bill. But 
what we have to realize is there is an alternative to what we are doing 
here today, and that alternative--and the only alternative--is to go 
back to extensions.
  If we go back to extensions, a couple of things happen. No. 1, we 
don't have any of the reforms we have in the bill; No. 2, we throw away 
about 30 percent of the money----
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Will my friend yield for a question?
  Mr. INHOFE. Yes, of course.
  Mr. REID. Through the Chair, I would ask my friend, the ranking 
member of this committee, is it true this is basically the same bill we 
are going to vote on today that passed this institution in March?
  Mr. INHOFE. It is true, I say through the Chair. It passed this 
institution with 74 votes, as I recall.
  Mr. REID. So again, people have had since March to read this bill and 
to get up to speed a little bit, don't you think?
  Mr. INHOFE. I answer in the affirmative.
  Mrs. BOXER. Mr. President, would my friend yield for 1 minute? I want 
to correct the Record.
  There are a few changes, there is no question. We have speeded up 
project delivery, as my friend knows. We gave a little more flexibility 
to the States in terms of the TE program. So a few things were changed. 
But my friends are right, primarily, this is a similar bill. It takes 
the money and we say we are going to spend the same thing, plus 
inflation. And it is true these bills have been out here for a long 
time. Actually, they passed our committee, I say to Senator Inhofe, in 
November of last year.

  Mr. INHOFE. I respond, yes, that is correct. That is accurate.
  I think that is very important too because we have been talking about 
this bill for a long period of time. We actually started trying to get 
a highway reauthorization bill way back in 2009, when the old bill from 
2005 expired.
  But the problem is--and I want to get back to where I was--there is 
an alternative to this bill. If we defeat this bill, we go back to 
extensions. If we go back to extensions, first of all, we are losing 
about 30 percent of the money off the top. Everybody knows that. 
Secondly, we don't get these reforms. If people are concerned out 
there--conservatives--that they want to defeat this and go back to 
extensions, they are not going to have reform with the enhancements. 
Right now the law requires 10 percent, depending on how we want to put 
it, in total funding or 2 percent of surface transportation. That has 
to be spent on transportation enhancements.
  My good friend, the chairman of the committee, Senator Boxer, and I 
disagree on enhancements. She likes them; I don't. I want money to be 
spent on concrete, on roads and bridges. This is what I think we should 
be doing. But that is a disagreement we had and so we had a compromise 
where she can have--and anyone can have--what they want. It is an 
oversimplification, but it means, yes, this money is going to be put 
into something. It can be enhancements. In my State of Oklahoma, it is 
not going to be in enhancements, it is going to be paying for some of 
the unfunded mandates. It will be paying for things we have to do in 
terms of the environment and things that are required. So we have 
solved that problem. If we don't pass this bill, we go right back and 
it will have to go to enhancements.
  On streamlining, all the streamlining is in this in terms of 
environmental streamlining. Talk to any of the road contractors out 
there and they will tell you about the waste of money and the number of 
miles of roads they can't do

[[Page S4751]]

because of some of these requirements--these environmental 
requirements. We have streamlined those requirements. If we don't pass 
this bill, we will go back to extensions and the same thing applies--we 
are going to lose all those opportunities. So not only will it cost 
more, we will not get the streamlining.
  I am very proud of a group that has always supported me, the American 
Conservative Union. Is there anyone around here who doesn't think the 
American Conservative Union isn't conservative? I made this a part of a 
speech yesterday, an editorial by Al Cardenas, the chairman of the 
American Conservative Union. It is an op-ed piece he wrote. But let me 
read now two short paragraphs from this op-ed piece from the American 
Conservative Union:

       Article One, Section Eight of the Constitution specifically 
     lists interstate road-building as one of the delineated 
     powers and responsibilities vested in the federal Government. 
     In Federalist Paper #42, James Madison makes an early case 
     for the federal government's role in maintaining a healthy 
     infrastructure, by stating ``Nothing which tends to 
     facilitate the intercourse between states, can be deemed 
     unworthy of the public care.''

  And the article goes on to say--and, remember, this is the American 
Conservative Union.

       Perhaps most importantly, those of us who believe in 
     constitutional conservatism understand that unlike all the 
     things the Federal Government wastes our money on, 
     transportation spending is at the core of what constitutes 
     legitimate spending.

  That is from the American Conservative Union. I wanted people to 
understand that voting for this is the conservative approach. We get 
more for the money being spent, it has all the streamlining in it, and 
it is our constitutional responsibility. This is what we are supposed 
to do. There are only two ways of doing it: one way is to pass this 
bill and the other is to operate under extensions, and I think it is 
very important for people to understand that.
  With that, I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Order of Procedure H.R. 4348

  Mr. REID. I ask unanimous consent that notwithstanding lack of 
receipt of the papers with respect to the conference report to 
accompany H.R. 4348, at 12:55 p.m. today, the Senate proceed to a 
series of stacked votes as outlined in this agreement; that the time 
until then be equally be divided between the two leaders or their 
designees; that the only points of order in order to the conference 
report be budget points of order or points of order relative to rule 
XXVIII, which is the scope of conference, or rule XXVIII, paragraph 9, 
availability; that if a rule XXVIII scope of conference point of order, 
rule XXVIII availability point of order or budget-related point of 
order is made against the conference report and an applicable motion to 
waive is made during any debate time, the Senate proceed to vote on the 
motions to waive in the order they were raised following the use or 
yielding back of time; that if the motions to waive are successful, the 
Senate proceed to vote on the conference report; that adoption of the 
conference report be subject to a 60-affirmative-vote threshold; that 
there be 2 minutes equally divided in the usual form prior to each 
vote, and all after the first vote be 10-minute votes, and I ask that 
in spite of the fact the votes may not come right after each other, all 
the rest today will be 10-minute votes; further, that if the conference 
report is adopted, the title amendment be agreed to; finally, that no 
motions to recommit be in order to the conference report.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. 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.
  Mr. McCONNELL. 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. McCONNELL. Mr. President, on behalf of Senator Paul, I raise a 
point of order that the conference report on H.R. 4348 has not been 
publicly available for 48 hours as required by rule XXVIII, paragraph 
9.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I move to waive paragraph 9 of rule XXVIII 
with respect to the conference report to accompany H.R. 4348.
  The PRESIDING OFFICER. The question is on agreeing to the motion.
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Colorado (Mr. Bennet), 
the Senator from Hawaii (Mr. Inouye), and the Senator from Colorado 
(Mr. Udall) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Oklahoma (Mr. Coburn), 
and the Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay.''
  The yeas and nays resulted--yeas 72, nays 22, as follows:

                      [Rollcall Vote No. 169 Leg.]

                                YEAS--72

     Akaka
     Barrasso
     Baucus
     Begich
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Cochran
     Collins
     Conrad
     Coons
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--22

     Ayotte
     Burr
     Coats
     Corker
     Cornyn
     Crapo
     DeMint
     Grassley
     Hatch
     Johnson (WI)
     Kyl
     Lee
     McCain
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Snowe
     Toomey

                             NOT VOTING--6

     Alexander
     Bennet
     Coburn
     Inouye
     Kirk
     Udall (CO)
  The PRESIDING OFFICER. On this vote the yeas are 72, the nays are 22. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to and the point of order falls.
  The majority leader is recognized.
  Mr. REID. Senator Coats wishes to speak.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, I would like to raise the point of order 
that section 1538 of the conference report to accompany H.R. 4348 
violates rule XXVIII as it is a matter not committed by either House.
  This is not a partisan issue. The Senator from Illinois, Mr. Durbin, 
the Senator from Ohio, Mr. Brown, the Senator from Illinois, Mr. Kirk, 
and I reached an agreement on how to deal with this issue. Yet during 
this conference work that was proceeding in the dark of the night----
  The PRESIDING OFFICER. The point of order is not debatable.
  Mr. COATS. Mr. President, I am not debating it. I am explaining it.
  Mr. REID. Mr. President, I move to waive all scope of conference 
points of order on rule XXVIII.
  The PRESIDING OFFICER. Are there further points of order?
  Mr. COATS. Mr. President, I ask for a recorded vote.
  The PRESIDING OFFICER. If there are no further points of order on 
rule XXVIII, the yeas and nays have been asked for on the motion to 
waive.
  Is there a sufficient second?
  There appears to be a sufficient second.

[[Page S4752]]

  The yeas and nays were ordered.
  The PRESIDING OFFICER. There is now 2 minutes of debate on the 
waiver.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, I jumped the gun a little bit. This gives 
me a chance to explain it twice. Let me say there was a bipartisan 
agreement that was reached on this. I will not name names, but after it 
went over to the House, somebody dropped something in the middle of the 
night to change this whole process.
  The issue is not just so-called Asian carp; the issue is that if this 
language is allowed to proceed, we will be authorizing over $100 
billion of potential spending to address this without any review by the 
Congress. All we ask for in our agreement was a simple opportunity to 
review the study by the Corps of Engineers so we can make a decision 
based on all the facts, which included over $100 billion of authorized 
spending. That is why I urge my colleagues to oppose any effort to 
waive this rule.
  Mr. LEVIN. Mr. President, the provision in question simply 
accelerates a study of invasive species such as the destructive Asian 
carp, a study essential to protecting the Great Lakes, a resource that 
is vital to the health, safety, and livelihoods of millions of 
Americans.
  The study was included in the Water Resources Development Act of 2007 
that authorized the Army Corps of Engineers to conduct a feasibility 
study to prevent the spread of aquatic nuisance species between the 
Great Lakes and Mississippi River basins.
  Since that time, Congress has provided over $13 million to the Corps 
to conduct this study. The Corps maintains that the study cannot be 
completed until the end of 2015.
  The provision included in the conference agreement before us today 
would accelerate this study and require its completion within 18 
months.
  We should not minimize the threat of the destructive Asian carp 
entering the Great Lakes.
  If Asian carp got into the Great Lakes, they would not only pose a 
very serious threat to the environment but would have a devastating 
effect on thousands of local jobs and a $7 billion fishing industry.
  Accelerating this study would put us on a better track to protect one 
of our Nation's greatest treasures and the thousands of jobs that 
depend on it.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I know everyone is anxious to finish. I am 
too. This is a massive bill. It is so good for our country. This bill 
includes student loans, flood insurance, and 2.8 million jobs. There 
are a lot of disappointments. I have a few in this bill that I would be 
happy to share with someone at the right time. We must waive this. This 
is one of the great accomplishments of this Congress. Please, everyone, 
vote to waive this.
  The PRESIDING OFFICER. The yeas and nays were previously ordered.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Colorado (Mr. Bennet), 
the Senator from Hawaii (Mr. Inouye), and the Senator from Colorado 
(Mr. Udall) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Oklahoma (Mr. Coburn), 
and the Senator from Illinois (Mr.  Kirk).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 66, nays 28, as follows:

                      [Rollcall Vote No. 170 Leg.]

                                YEAS--66

     Akaka
     Baucus
     Begich
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heller
     Hoeven
     Inhofe
     Johanns
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--28

     Ayotte
     Barrasso
     Burr
     Chambliss
     Coats
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Hutchison
     Isakson
     Johnson (WI)
     Kyl
     Lee
     McCain
     McConnell
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Snowe
     Thune
     Toomey

                             NOT VOTING--6

     Alexander
     Bennet
     Coburn
     Inouye
     Kirk
     Udall (CO)
  The PRESIDING OFFICER. On this vote, the years are 66 and the nays 
are 28. Three-fifths of the Senators duly chosen and sworn having voted 
in the affirmative, the motion is agreed to, and the point of order 
falls.
  The Senator from Tennessee.
  Mr. CORKER. Mr. President, the pending measure, the conference report 
to accompany H.R. 4348, would exceed the aggregate level of budget 
authority and outlays for fiscal year 2012, as set out in the most 
recent budget resolution deemed by the Budget Control Act of 2011.
  Mr. CORNYN. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. Would the Senate please be in order.
  Mr. CORKER. Therefore, I raise a point of order under section----
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. I cannot hear the Senator from Tennessee.
  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from Tennessee.
  Mr. CORKER. Therefore, I raise a point of order under section 
311(a)(2) of the Congressional Budget Act of 1974.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, pursuant to section 904 of the Congressional 
Budget Act of 1974, the waiver provisions of applicable budget 
resolutions, and section 4(g)(3) of the Statutory Pay-As-You-Go Act of 
2010, I move to waive all applicable sections of those Acts and 
applicable budget resolutions for purposes of the pending conference 
report, and I ask for the yeas and nays.
  However, I ask unanimous consent that the letter from CBO be printed 
in the Record at this point, which indicates that not only is 
everything paid for in this bill, it reduces the debt.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                      Congressional Budget Office,


                                                U.S. Congress,

                                    Washington, DC, June 29, 2012.
     Hon. David Dreier,
     Chairman, Committee on Rules,
     House of Representatives, Washington, DC.
       Dear Mr. Chairman: The Congressional Budget Office has 
     reviewed the conference report for H.R. 4348, MAP-21, as 
     posted on the Web site of the House Committee on Rules on 
     June 28, 2012.
       CBO estimates that enacting H.R. 4348 would reduce budget 
     deficits over the 2012-2022 period by $16.3 billion. That 
     figure does not include effects that may be counted for 
     budget enforcement purposes in the House of Representatives. 
     Specifically, the House-passed budget resolution calls for 
     counting transfers from the general fund of the Treasury to 
     the Highway Trust Fund as new spending.
       Major provisions of the legislation that would affect the 
     budget (see Table 1) would:
       Reauthorize, through fiscal year 2014, the surface 
     transportation programs administered by the Federal-Aid 
     Highway Administration, the Federal Transit Administration, 
     the National Highway Traffic Safety Administration, the 
     Federal Motor Carrier Safety Administration, and certain 
     programs administered by the Pipelines and Hazardous 
     Materials Administration;
       Establish the Gulf Coast Restoration Trust Fund and require 
     that 80 percent of any administrative and civil penalties 
     paid to the federal government under the Clean Water Act in 
     connection with the April 2010 explosion at the Deepwater 
     Horizon facility in the Gulf of Mexico be deposited into that 
     trust fund and made available to be spent;
       Change the interest rate that pension plans use to measure 
     their liabilities, increase pension premium rates for both 
     variable and flat rate premiums paid to the Pension Benefit 
     Guaranty Corporation, and establish a cap on the variable 
     rate premium;
       Provide payments to certain states by reauthorizing the 
     Secure Rural Schools and Payments In Lieu of Taxes programs;
       Allow eligible federal employees to enter into a phased 
     retirement, during which they continue to work part time 
     while drawing a partial salary and a partial civil service 
     retirement annuity;

[[Page S4753]]

       Reduce the additional Medicaid payments to Louisiana that 
     it will receive based on prior declarations of federal 
     disasters;
       Repeal a requirement that the Department of Transportation 
     reimburse the difference in cost between shipping foreign 
     food aid on a U.S.-flag ship and a foreign-flag ship;
       Reduce mandatory payments to states that have completed 
     certain reclamation projects on land formerly used for 
     mining;
       Reauthorize the National Flood Insurance Program through 
     2017 and increase premiums for some subsidized policies;
       Retain an interest rate of 3.4 percent on all new 
     subsidized student loans until June 30, 2013, and change the 
     interest the federal government pays on behalf of some 
     borrowers who are attending school; and
       Raise additional revenue by increasing the ability of 
     businesses with excess assets in their pension funds to use 
     them for retiree health and life insurance benefits, and by 
     defining businesses that make roll-your-own machines 
     available for consumer use as tobacco manufacturers.
       CBO estimates that implementing the legislation also would 
     lead to discretionary spending of $95.9 billion over the 
     2013-2017 period (see Table 2); such spending would be 
     subject to future appropriation actions. Of that amount, the 
     spending on transportation programs would total $94.3 
     billion, which reflects estimated obligation levels for 2013 
     and 2014 that are approximately equal to the obligation 
     levels for 2012, adjusted for inflation.
       In addition, CBO estimates that implementing provisions of 
     the conference report for the remainder of 2012, 2013, and 
     2014 would result in an end-of-year balance in 2014 of 
     approximately $4 billion in the highway account of the 
     Highway Trust Fund and about $1 billion in the transit 
     account of the Highway Trust Fund. Table 3 provides a 
     projection of future spending, revenues, and remaining 
     balances in the Highway Trust Fund over the next 10 years.
       I hope this information is useful to you. If you need 
     additional details, we will be pleased to provide them. The 
     staff contact is Sarah Puro, who can be reached at 226-2860.
           Sincerely,
                                             Douglas W. Elmendorf,
                                                         Director.

   TABLE 1--ESTIMATE OF THE EFFECTS ON DIRECT SPENDING AND REVENUES OF THE CONFERENCE REPORT FOR H.R. 4348, MAP-21, AS POSTED ON THE WEB SITE OF THE HOUSE COMMITTEE ON RULES ON JUNE 28, 2012
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               by fiscal year, in millions of dollars--
                                     -----------------------------------------------------------------------------------------------------------------------------------------------------------
                                         2012        2013        2014        2015        2016        2017        2018        2019        2020        2021        2022      2012-2017   2012-2022
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   CHANGES IN DIRECT SPENDING
 
Transportation Contract Authority:
    Budget Authority a..............           0         243         800         800         800         800         800         800         800         800         800       3,443       7,443
    Estimated Outlays b.............           0           0           0           0           0           0           0           0           0           0           0           0           0
Gulf Coast Restoration:
    Estimated Budget Authority......           0           0          45         127         184         339         366         399         372         328         302         695       2,462
    Estimated Outlays...............           0           0           2          14          47         105         175         260         322         351         352         168       1,628
Pension Provisions:
    Estimated Budget Authority......           0           0           0           0           0           0           0           0           0           0           0           0           0
    Estimated Outlays...............           0        -220        -350      -1,065      -1,885      -1,685      -1,555      -1,255      -1,115      -1,055      -1,040      -5,205     -11,225
Secure Rural Schools:
    Estimated Budget Authority......         288           0           0           0           0           0           0           0           0           0           0         288         288
    Estimated Outlays...............           0         253          35           0           0           0           0           0           0           0           0         288         288
Payment in Lieu of Taxes:
    Estimated Budget Authority......           0         398           0           0           0           0           0           0           0           0           0         398         398
    Estimated Outlays...............           0         398           0           0           0           0           0           0           0           0           0         398         398
Phased Retirement:
    Estimated Budget Authority......           0          -9         -26         -45         -54         -53         -52         -50         -49         -46         -42        -187        -427
    Estimated Outlays...............           0          -9         -26         -45         -54         -53         -52         -50         -49         -46         -42        -187        -427
Change in Medicaid FMAP Increase:
    Estimated Budget Authority......           0        -510        -160           0           0           0           0           0           0           0           0        -670        -670
    Estimated Outlays...............           0        -510        -160           0           0           0           0           0           0           0           0        -670        -670
Repeal Incremental Ocean Freight
 Differential:
    Estimated Budget Authority......           0        -108        -108        -108        -108        -108        -108        -108        -108        -108        -108        -540      -1,080
    Estimated Outlays...............           0        -108        -108        -108        -108        -108        -108        -108        -108        -108        -108        -540      -1,080
Limitation on Abandoned Mine
 Reclamation Fund Payments:
    Estimated Budget Authority......           0        -139        -131         -47         -46         -46         -98         -99         -47         -47         -49        -409        -749
    Estimated Outlays...............           0         -55         -94         -86         -73         -55         -67         -83         -73         -63         -53        -363        -702
National Flood Insurance Program
 \3\:
    Estimated Budget Authority......           0          -5         -30         -70         105           0           0           0           0           0           0           0           0
    Estimated Outlays...............           0          -5         -30         -70         105           0           0           0           0           0           0           0           0
One-Year Extension of Subsidized
 Student Loan Interest Rates:
    Estimated Budget Authority......       4,285       2,595           *           *           *           *           *           *           *           *           *       6,880       6,880
    Estimated Outlays...............       2,480       3,505           *           *           *           *           *           *           *           *           *       5,985       5,985
Eliminate Interest Subsidy for
 Certain Borrowers:
    Estimated Budget Authority......           0         -15         -85        -110        -130        -145        -170        -195        -200        -210        -210        -485      -1,470
    Estimated Outlays...............           0         -10         -55         -90        -105        -120        -140        -160        -175        -180        -185        -380      -1,220
Changes in Direct Spending Excluding
 Intragovernmental General Fund
 Transfers d
    Estimated Budget Authority......       4,573       2,450         305         547         751         787         738         747         768         717         693       9,413      13,075
    Estimated Outlays...............       2,480       3,239        -786      -1,450      -2,073      -1,916      -1,747      -1,396      -1,198      -1,101      -1,076        -506      -7,025
Intragovernmental Transfers from
 General Fund to Highway Trust Fund
 d:
    Estimated Budget Authority......           0       6,200      12,600           0           0           0           0           0           0           0           0      18,800      18,800
    Estimated Outlays...............           0       6,200      12,600           0           0           0           0           0           0           0           0      18,800      18,800
Changes in Direct Spending,
 Including Intragovernmental General
 Fund Transfers d:
    Estimated Budget Authority......       4,573       8,650      12,905         547         751         787         738         747         768         717         693      28,213      31,875
    Estimated Outlays...............       2,480       9,439      11,814      -1,450      -2,073      -1,916      -1,747      -1,396      -1,198      -1,101      -1,076      18,294      11,775
 
                                                                                       CHANGES IN REVENUES
 
Pension Provisions..................         595       2,391       4,501       5,044       3,540       1,446          74        -882      -2,303      -3,046      -2,616      17,517       8,744
Transfer of Excess Pension Assets              0           0          20          41          42          43          44          45          47          48          24         145         354
 and Allow Section 420 to Apply to
 Life Insurance Benefits............
Phased Retirement...................           0           1           2           3           4           4           4           3           3           1          -1          14          24
Expand Definition of Tobacco                   2          12          13          11          10           9           8           7           7           7           7          57          94
 Manufacturer to Include Roll-Your-
 Own-Cigarette Machines.............
Increased Civil Penalties for                  0           1           1           1           1           1           1           1           1           1           1           5          10
 Lenders............................
    Total Changes...................         597       2,405       4,537       5,100       3,597       1,503         131        -826      -2,245      -2,989      -2,585      17,738       9,226
        On-budget Revenues..........         597       2,291       4,324       4,888       3,425       1,422         141        -726      -1,998      -2,712      -2,355      16,946       9,299
        Off-budget Revenues.........           0         114         213         212         172          81         -10        -100        -247        -277        -230         792         -73
 
         NET INCREASE OR DECREASE (-) IN THE DEFICIT FROM CHANGES IN DIRECT SPENDING AND REVENUES--EXCLUDING INTRAGOVERNMENTAL TRANSFERS FROM THE GENERAL FUND TO THE HIGHWAY TRUST FUND
 
Impact on Deficit d.................       1,883         834      -5,323      -6,550      -5,670      -3,419      -1,878        -570       1,047       1,888       1,509     -18,244     -16,251
On-budget Deficit Change............       1,883         948      -5,110      -6,338      -5,498      -3,338      -1,888        -670         800       1,611       1,279     -17,452     -16,324
Off-budget Deficit Change...........           0        -114        -213        -212        -172         -81          10         100         247         277         230        -792          73
 
   NET INCREASE OR DECREASE (-) IN THE DEFICIT FROM CHANGES IN DIRECT SPENDING AND REVENUES--INCLUDING INTRAGOVERNMENTAL TRANSFERS FROM THE GENERAL FUND TO THE HIGHWAY TRUST FUND FOR BUDGET
                                                                    ENFORCEMENT PURPOSES IN THE U.S. HOUSE OF REPRESENTATIVES
 
Impact on Deficitd..................       1,883       7,034       7,277      -6,550      -5,670      -3,419      -1,878        -570       1,047       1,888       1,509         556       2,549
On-budget Deficit Change............       1,883       7,148       7,490      -6,338      -5,498      -3,338      -1,888        -670         800       1,611       1,279       1,348       2,476
Off-budget Deficit Change...........           0        -114        -213        -212        -172         -81         -10        -100        -247        -277        -230        -792          73
Memorandum:
    Increased Net Income to the                0          -5         -30         -70        -145        -250        -320        -380        -430        -490        -555        -500      -2,675
     National Flood Insurance
     Programc.......................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: Congressional Budget Office and the staff of the Joint Committee on Taxation. Notes: FMAP = Federal Medical Assistance Percentages; * = between -$500,000 and $0. Amounts may not sum
  to totals because of rounding.
a H.R. 4348 would provide $12.4 billion in contract authority (a mandatory form of budget authority) for the last quarter of fiscal year 2012, $50.1 billion for fiscal year 2013, and $50.9
  billion for fiscal year 2014, CBO estimates. Consistent with the rules in the Balanced Budget and Emergency Deficit Control Act for constructing its baseline for future contract authority
  for transportation programs, CBO assumes that the contract authority for years after 2014 would be equal to the amount provided for 2014, the last year of the authorization.
b CBO expects that most of the outlays from contract authority (a mandatory form of budget authority) for surface transportation programs will continue to be controlled by obligation
  limitations enacted in future appropriation acts. Those expenditures are displayed in Table 2.
c The proposed amendment would raise premiums for certain subsidized flood insurance policies, increasing net income to the National Flood Insurance Program by $2.7 billion. However, because
  many policies would continue to be subsidized and the program would continue to face significant interest costs from its prior and future borrowing, CBO expects that additional receipts
  collected under this legislation would be spent to cover future program shortfalls, resulting in no net effect on the budget over the 11-year period.

[[Page S4754]]

 
d Pursuant to section 508 of H. Con. Res. 112, the Concurrent Resolution on the Budget--Fiscal Year 2013, general fund transfers to the Highway Trust Fund are considered to be new budget
  authority and outlays for budget enforcement purposes in the House of Representatives. CBO estimates that such transfers would increase the balances attributed to the Highway Trust Fund;
  however, those transfers would not increase direct spending or affect budget deficits.


   TABLE 2--CHANGES IN SPENDING SUBJECT TO APPROPRIATION UNDER THE CONFERENCE REPORT FOR H.R. 4348, MAP-21, AS
                             POSTED ON THE RULES COMMITTEE WEB SITE ON JUNE 28, 2012
----------------------------------------------------------------------------------------------------------------
                                                             By Fiscal Year, in Millions of Dollars
                                               -----------------------------------------------------------------
                                                   2013       2014       2015       2016       2017    2013-2017
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Spending from the Highway Trust Fund:
    Estimated Obligation Limitation a.........     49,409     50,103          0          0          0     99,512
    Estimated Outlays.........................     12,318     31,794     27,318     12,134      6,780     90,344
Other Authorized Transportation Programs:
    Estimated Authorization level.............      2,697      2,198          0          0          0      4,895
    Estimated Outlays.........................        379      1,011      1,168        817        618      3,993
Non-Transportation Programs: b
    Estimated Authorization Level.............        438        437        437        437        437      2,186
    Estimated Outlays.........................         80        245        337        431        435      1,528
    Total Changes:
        Estimated Budgetary Resources.........     52,544     52,738        437        437        437    106,593
        Estimated Outlays.....................     12,777     33,050     28,823     13,382      7,833     95,865
Memorandum:
    Reduction in Offsetting Receipts from.....
    Lower Employer Contributionsc.............          0          2          3          3          3         11
----------------------------------------------------------------------------------------------------------------
Note: Components may not sum to totals because of rounding.
a Estimated discretionary outlays reflect use of funds from the contract authority provided by the legislation
  under the obligation limitations specified or estimated by CBO. (Outlays stemming from any additional contract
  authority that would be provided for years after 2014 would be attributable to future legislation.) Under
  current law, CBO estimates that spending from the Highway Trust Fund would be about $48 billion in 2012. (See
  Table 3 for estimates of total outlays from the trust fund in 2013 and subsequent years.)
b H.R. 4348 would authorize the appropriation of $440 million a year over the 2013-2017 period for a national
  flood mapping program and flood mitigation assistance. The legislation also would lower future federal
  employer retirement contributions. Those contributions are contingent on future appropriation actions.
c Employer contributions are intragovernmental transactions that do not affect the deficit; positive numbers
  indicate a decrease in receipts.


TABLE 3--SUMMARY OF CASH FLOWS FOR ACCOUNTS IN THE HIGHWAY TRUST FUND UNDER H.R. 4348, MAP-21, AS POSTED ON THE WEB SITE OF THE HOUSE COMMITTEE ON RULES
                                                                    ON JUNE 28, 2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         By fiscal year, in billions of dollars--
                                                                 ---------------------------------------------------------------------------------------
                                                                   2012    2013    2014    2015    2016    2017    2018    2019    2020    2021    2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
Highway Account:
    Start-of-Year Balance.......................................      14       8       4       4       c       c       c       c       c       c       c
    Revenues and Interest.......................................      33      33      33      34      35      36      36      36      36      37      37
    Intragovernmental Transfers.................................       2       6      10       0       0       0       0       0       0       0       0
    Outlaysa,b..................................................      42      43      44      44      44      45      45      46      46      47      47
    End-of-Year Balance.........................................       8       4       4       c       c       c       c       c       c       c       c
Transit Account:
    Start-of-Year Balance.......................................       7       5       5       1       c       c       c       c       c       c       c
    Revenues and Interest.......................................       5       5       5       5       5       5       5       5       5       5       5
    Intragovernmental Transfers.................................       0       0       2       0       0       0       0       0       0       0       0
    Outlaysa,b..................................................       7       8       8       9      10      10      10       9       9      10      10
    End-of-Year Balance.........................................       5       5       1       c       c       c       c       c       c       c       c
Memorandum:
Cumulative Shortfall: c
    Highway Account Shortfall...................................    n.a.    n.a.    n.a.      -6     -15     -24     -33     -42     -52     -62     -72
    Transit Account Shortfall...................................    n.a.    n.a.    n.a.      -3      -7     -12     -16     -20     -24     -29     -33
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: n.a. = not applicable.
Contract authority is a mandatory form of budget authority typically provided in authorization acts.
Obligation limitations are limitations on the obligation of contract authority typically provided in appropriation acts.
a After 2014, the estimated outlays assume obligations will continue at the 2014 level, adjusted for inflation. The total outlays shown reflect prior
  and future obligations.
b Outlays include amounts ''flexed'' or transferred between the highway and transit accounts. CBO estimates that amount would total about $1 billion
  annually.
c CBO projects that, under provisions of the Conference Report for H.R. 4348, the highway account and the transit account of the Highway Trust Fund
  would be exhausted in fiscal year 2015. Under current law, the Highway Trust Fund cannot incur negative balances. However, following rules in the
  Deficit Control Act of 1985, CBO's baseline for highway spending assumes that obligations presented to the Highway Trust Fund will be paid in full.
  The memorandum to this table illustrates the cumulative shortfall of fund balances, assuming spending levels that would be authorized by the
  Conference Report for H.R. 4348.

  Mr. REID. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  There is a sufficient second.
  The yeas and nays are ordered.
  The Senator from Tennessee is recognized.
  Mr. CORKER. Mr. President, if I could have everybody's attention, 
according to CBO, this is paid for the old way, where we spend all the 
money in a year or two and then it is paid for over 10.
  This body came together last August in a bipartisan way to put in 
place the Budget Control Act, and this bill violates the deemed budget 
by $2.5 billion. This will be the third time we violate the Budget 
Control Act deemed budget. For all of those people who are meeting in 
the evenings, meeting in groups in rooms trying to solve our Nation's 
fiscal issues, a vote to waive this motion says we don't have the 
discipline, the courage, or the will to do what we told the American 
people we would do to try to get our fiscal house in order.
  I urge my colleagues to vote against this motion to waive right now.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, the Congressional Budget Office is a 
nonpartisan body that determines what spending is for the Congress, and 
they have determined that this bill is paid for and it reduces the 
debt.
  The PRESIDING OFFICER. The question is on agreeing to the motion.
  The yeas and nays are ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Ms. SNOWE (when her name was called). Present.
  Mr. DURBIN. I announce that the Senator from Colorado (Mr. Bennet), 
the Senator from Hawaii (Mr. Inouye), and the Senator from Colorado 
(Mr. Udall) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Oklahoma (Mr. Coburn), 
and the Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay.''
  The yeas and nays resulted--yeas 63, nays 30, as follows:

                      [Rollcall Vote No. 171 Leg.]

                                YEAS--63

     Akaka
     Baucus
     Begich
     Bingaman
     Blumenthal
     Blunt
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heller
     Hoeven
     Inhofe
     Johanns
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Shelby
     Stabenow
     Tester
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--30

     Ayotte
     Barrasso
     Boozman
     Burr
     Chambliss
     Coats
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham

[[Page S4755]]


     Grassley
     Hatch
     Hutchison
     Isakson
     Johnson (WI)
     Kyl
     Lee
     McCain
     McConnell
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Thune
     Toomey

                        ANSWERED ``PRESENT''--1

       
     Snowe
       

                             NOT VOTING--6

     Alexander
     Bennet
     Coburn
     Inouye
     Kirk
     Udall (CO)
  The PRESIDING OFFICER. On this vote, the yeas are 63, the nays are 
30. One Senator responded ``present.'' Three-fifths of the Senators 
duly chosen and sworn having voted in the affirmative, the motion is 
agreed to and the point of order falls.


                     Abandoned Mine Land Trust Fund

  Mr. ENZI. Mr. President, I am extremely disappointed to be here today 
to discuss a provision in the conference report that impacts my home 
State and potentially impacts a number of other states. The provision 
relates to the abandoned mine land trust fund, and undoes a carefully 
construed compromise that occurred in 2006 between a coalition of 
Eastern and Western States, mine workers, and coal companies.
  This provision was included at the last moment. This pay-for was not 
in either the Senate version of the Transportation bill, nor was it in 
the House version. Although it has a tremendous impact on Wyoming, 
neither Senator Barrasso nor I were consulted about the impact of the 
provision. We are extremely disappointed that is the case and seek 
commitments from our colleagues to fix this provision hopefully as a 
technical correction, but at any rate not later than the end of the 
year to reconstruct the careful compromise that occurred in 2006. While 
I respect the work of the conference committee, provisions like this 
are the reason that Congress is unpopular. I look forward to working 
with my colleagues to undo this terrible provision and make Wyoming and 
other impacted states whole.
  Mr. BARRASSO. Mr. President, I second the comments of Senator Enzi. 
This is an egregious provision that was included at the last moment 
without any consultation of Senator Enzi or I. I am extremely 
disappointed that we have not been able to address this matter before 
the conference report was filed, and it is essential to fix it as soon 
as possible preferably in a technical corrections bill that will be 
drafted in the coming weeks but most certainly by the end of the year.
  This provision is not well thought out. It has the potential to 
impact not only Wyoming but a number of other States as well. I look 
forward to working with my colleagues to fix the provision in an 
expeditious manner.
  Mrs. BOXER. Mr. President, I understand the problems that my 
colleagues from Wyoming have with section 100125 of the conference 
report. I recognize that this provision was included in the conference 
report without their consultation. We will be working on a corrections 
bill in the coming weeks, and I intend to work with them to address 
this issue in that bill.
  Mr. INHOFE. Mr. President, I second the chairwoman's commitment to 
working with the Senators from Wyoming to fix this problem in the 
technical corrections bill. It is important that we find a way to 
address the issue as soon as possible, and I will work with them to 
make Wyoming and the other impacted States whole.
  Mr. HATCH. Mr. President, a portion of the abandoned mine land trust 
fund program falls within the jurisdiction of the Senate Finance 
Committee. I am also committed to working with my colleagues from 
Wyoming to correct this situation. I hope we can do so as soon as 
possible.


                             Transit Title

  Mr. MENENDEZ. Mr. President, we are poised to pass a truly historic 
transportation bill and I wanted to engage in a brief colloquy with my 
colleague Chairman Johnson, with whom I have worked closely over the 
past year and a half to craft the transit title of the bill. He has 
been a true pleasure to work with and I think we should all be proud 
that we have secured stable funding for public transportation over the 
next 2 years.
  The bill has record amounts of rail funding and by abandoning 
earmarks, all of the major formula programs have been increased 
significantly. We have greatly enhanced the Federal Transit 
Administration's powers to provide safety oversight and set national 
standards, which will ensure millions of transit passengers can travel 
safely and efficiently.
  But for the purposes of this colloquy I wanted to focus on section 
20013 on private sector participation in public transportation. I ask 
the chairman, does anything in this section show a preference by 
Congress for public transportation to be provided by private operators 
rather than public operators?
  Mr. JOHNSON of South Dakota. Absolutely not. That section is intended 
to help public and private sector providers to better coordinate 
service and allow for more private investment in public transportation 
projects. Public providers of public transportation do our Nation a 
great service in providing affordable efficient service, lowering 
pollution, and easing traffic congestion. There is no reason to have a 
policy that favors private-public transportation service, and this 
language does not do so.
  Mr. MENENDEZ. Chairman Johnson, I completely agree. This language 
should not be interpreted to encourage or require public-private 
partnership activities in transit or give any preference to grantees 
based on the decisions they make on this issue.
  For years, the committee has endorsed the longstanding congressional 
policy that decisions involving the choice between public and private 
transit operators should be left to local authorities who are better 
equipped to make local transportation decisions. The Federal government 
is clearly best suited to making broad public policy decisions rather 
than micromanaging the local transit choices selected to meet the needs 
of rural, urban, and suburban communities. Does the chairman agree?
  Mr. JOHNSON of South Dakota. Absolutely. Nothing in this bill changes 
the fact that decisions to use public or private service should be up 
to local providers. We firmly believe that the public versus private 
question should be decided on the basis of local needs, not ideology. 
And most importantly, the Federal Government should remain neutral, and 
it should not intrude on local decisionmaking. The language in current 
49 U.S.C. 5306 regarding private sector participation states that such 
issues are guided by local policies, criteria, and decisionmaking. This 
bill maintains this language, reaffirming Congress' commitment to local 
control on this issue.
  Mr. MENENDEZ. I thank the chairman. I look forward to continue 
working with you to oversee the implementation of this and other 
provisions in this bill and continue to do all we can do to support a 
robust, well-funded public transportation program.
  Mrs. FEINSTEIN. Mr. President, I rise today to thank my colleagues on 
the transportation conference for including the National Flood 
Insurance Program reauthorization and for removing the controversial 
residual risk provision.
  That provision was a real concern to me and more than a dozen cities 
and counties in California. It would have required nearly 1 million 
residents in my State to purchase flood insurance even though they live 
behind fully functioning levees that meet or exceed Federal safety 
standards. That provision alone could have quadrupled the number of 
homeowners in my State who have to buy flood insurance.
  The flood insurance bill called this low-level risk behind levees 
``residual risk.'' It is the risk left over after a levee has been 
built--the risk of levee failure, in essence.
  These are levees that homeowners funded with their own tax dollars, 
and the provision would have forced them to spend even more money. That 
is just not good policy. And I was proud to add my voice to that of the 
Senator from Arkansas in strong opposition to including it in the bill.
  The bottom line is this: Until the residual risk provision was 
removed, the National Flood Insurance Program reauthorization would 
have had a devastating effect on communities in California and across 
the Nation.
  Even homeowners in communities who maintain their levees to Federal 
safety standards with their own tax dollars would have been forced to 
pay for Federal flood insurance. I simply could not support such an 
unfair policy. It sent the message to homeowners

[[Page S4756]]

and local communities that regardless of their investments in flood 
protection, it is simply not good enough. That is not the message we 
should be sending when this country needs to invest more in flood 
control infrastructure, not when homeowners are struggling to pay their 
mortgages, not when housing starts are near alltime lows, and not when 
our economy is still struggling to get back on track.
  I was not alone in my opposition to the residual risk provision. I 
received letters from elected officials across the State--Oceanside, 
Long Beach, Lakewood, Los Angeles, Santa Maria, Stockton, Sacramento, 
Yuba City. Del Norte, Sutter, Yolo, and Butte Counties were opposed, as 
well as San Joaquin County.
  This was not a regional issue. The letters came in from southern 
California, the central coast, northern California and the Central 
Valley.
  In San Joaquin County, in the middle of my State, this provision 
would have meant 280,000 additional residents had to purchase flood 
insurance. This is a county where 1 in every 194 homes is in 
foreclosure--3.3 times the national average. At even $1 a day, this 
added expense could jeopardize the county's already shaky housing 
market.
  The purchase requirement would have covered most of the city of 
Stockton, with a population of nearly 300,000. This would have further 
devastated a city that suffered the second highest foreclosure rate in 
the Nation last year.
  In Palo Alto, this provision would have required another 5,500 
homeowners to buy insurance.
  In Sutter County, an estimated 28,000 of the 34,308 parcels would 
have been affected. That is 81.6 percent of all parcels in the county.
  In Butte County, 14,000 parcels would have been affected.
  In Los Angeles County, supervisors Mark Ridley Thomas and Don Knabe 
tell me that at least 200,000 properties and 800,000 residents would 
have been impacted. These homeowners are currently protected by 130 
miles of levees and 18 dams in L.A. County.
  Many of the affected homeowners live along the Los Angeles River, 
which isn't really a river at all--it is a concrete channel. And it is 
very hard to imagine a flood ever occurring there. More than $200 
million has been invested to minimize the risk.
  The federally authorized Los Angeles County Drainage Area Project 
reinforced levees along the Los Angeles River to protect against floods 
well beyond a 100-year event. Local taxpayers contributed $55 million 
to complete this project; Federal contributions totaled another $155 
million. This investment was made so that residents could avoid $32 
million in yearly flood insurance premiums. With the inclusion of the 
residual risk provision, homeowners in the area would have once again 
had to pay flood insurance bills every year.
  I appreciate the efforts of Senators Cochran and the chairman and 
ranking member to address this problem, but changes they made to the 
original draft did not go far enough. Even with their changes, the 
provision could have further depressed home prices by driving up 
ownership costs in many areas.
  Let me be clear: This policy wasn't proposed because homeowners lived 
behind unsafe levees. These were safe levees that meet Federal 
standards. Some believe this provision was added to the original bill 
to restore the fiscal solvency of the program. By bringing in new, low-
risk properties, it is true that the fiscal health of the Flood 
Insurance Program would have improved. But I, for one, oppose propping 
up the Flood Insurance Program on the backs of constituents who played 
by the rules.
  If the goal is to ensure that people are informed about the risks 
they face, I continue to be willing to work with my colleagues to 
accomplish that. In fact, California already offers a model for 
achieving that very goal.
  The bottom line is this: Even with the changes made to the residual 
risk provision, the bill would have still required homeowners and 
businesses protected by certified levees to purchase mandatory flood 
insurance. Candidly, I was shocked that we even considered adding this 
provision without a full floor debate because it was not a trivial 
extension. The bill would have imposed substantial new costs to nearly 
1 million homeowners in California alone.
  Again, I thank my colleagues on the conference committee for removing 
this provision. This conference report was not the time or place for it 
to be considered.
  Now, with the 5-year reauthorization of the National Flood Insurance 
Program in place, we will be taking an important step to stabilize our 
housing market. We have also taken some very responsible steps to put 
the program back on the path to fiscal solvency.
  I commend my colleagues for putting together this package of bills. I 
know they had a tremendous challenge, and I think they have done an 
exceptional job.
  Mr. BAUCUS. Mr. President, I would like to turn to discussing the 
vital contributions of staff who worked on this bill. We are very 
fortunate in the Senate to be able to rely on the expertise and the 
support of so many talented and dedicated staffers whose efforts 
enabled us to finalize this conference report.
  This bill turned out to be unique because it spanned so many 
different issues. In addition to the ones I have already mentioned, my 
staff also had to work on pension matters, flood insurance, Federal 
trust funds, labor, and a range of other issues. All of this combined 
to make this a very complicated bill with many moving parts.
  Accordingly, I want to take this opportunity to publicly and 
professionally thank the following staffers for guiding this bill 
through markups in different Senate committees, negotiating with 
counterparts from the House of Representatives, and getting us over the 
finish line with a conference report that provides the American people 
with the good policies included in this bill:
  There was Tom Lynch, who worked on both the Environment and Public 
Works Committee's portion of the bill and the Finance Committee's 
portion.
  Tax Counsel Ryan Abraham, whose work along with Tom Lynch on the 
highway trust fund was key to being able to fund highways and transit 
projects under the bill.
  Tom, Ryan, and Lily Batchelder, chief tax counsel and head of Finance 
Committee's tax team, held more than 20 staff meetings with Democrats 
and Republicans before our Finance Committee markup.
  Mark Hybner, who was critical to refining the Indian Reservation 
Roads Program among other things, a program that is very important to 
the seven tribes in my State.
  Tax and benefits counsel Tom Reeder, a true seasoned professional 
without whom we couldn't have found the essential offsets to ensure the 
highway trust fund would remain solvent.
  Spencer Gray, who shepherded the secure rural schools and payment in 
lieu of taxes through this process.
  Dave Hughes and Ann Cammack, who made critical contributions both to 
raise revenue and in tracking policy.
  Sean Morrison and Blaise Cote, the Finance Committee's two excellent 
research assistants.
  Heather O'Loughlin, easily one of the most versatile and capable 
staffers working in the Senate, who was key both to the education and 
the flood insurance portions.
  Amber Cottle, Bruce Hirsch, Gabriel Adler, Hun Quach, Chelsea Thomas, 
and Rory Murphy, who were very helpful in the effort to develop offsets 
during the Finance Committee markup.
  Department of Transportation detailee and Billings Montana native 
Avital Barnea, who lent helpful assistance at a crucial time.
  Jeffrey Arnold, who was very helpful in assisting on Pension Benefit 
Guaranty Corporation provisions and phased retirement.
  Intern extraordinaire Pete Markuson, who logged a lot of meaningful 
hours.
  The outstanding press team of Jenny Donohue, Meaghan Smith, Ryan 
Carey, Kate Downen, Kathy Weber, and our newest addition, Sean Neary.
  And my indispensable leadership staff of Jon Selib, Russ Sullivan, 
and Paul Wilkins, who as always remained focused and unflappable 
despite the challenges.
  Finally, I also want to use this opportunity to thank Bettina 
Poirier, David Napoliello, Andrew Dohrmann, and Grant Cope from 
Chairman Boxer's Environment and Public Works Committee staff; Ruth Van

[[Page S4757]]

Mark, James O'Keeffe, Murphie Barrett, Kyle Miller, Dmitri Karakitsos, 
and Alex Renjel from Senator Inhofe's staff; Charles Brittingham with 
Senator Vitter; Tyler Rushforth with Senator Reid; Ellen Doneski, James 
Reid, Ian Jefferies, Rich Swayze, Richard Russell, and Bailey Edwards 
from the Commerce Committee; and Chris Campbell, Mark Prater, Jim 
Lyons, Nick Wyatt, and Preston Rutledge from the Finance Committee.
  Without the individual and collective contributions of each one of 
these people I have mentioned, we would not have pulled this off. For 
them and their efforts to help support American jobs, all of us should 
be very grateful.
  Mr. LEVIN. Mr. President, the bill before us today takes several 
important steps in several policy areas to move our Nation forward. It 
prevents a pending student loan interest rate hike that would make 
college less affordable for American students and their families. It 
makes important investments in our roads, bridges, and other 
transportation infrastructure, investments that will put Americans to 
work today and make our economy more competitive for years to come. It 
reauthorizes the Flood Insurance Program that provides security to 
millions of Americans, while making the program more efficient and more 
fair to States such as Michigan that for too long have paid more in 
premiums than they receive in benefits. While this legislation does not 
include everything I had hoped for or supported, it makes significant 
progress on issues our constituents need us to address.
  Millions of Americans will be relieved that this bill avoids a 
looming increase in student loan interest rates. On July 1, those 
interest rates are scheduled to double, an increase that Americans 
already struggling to pay for higher education simply cannot afford. 
Extending the current 3.4 percent interest rate for another year lifts 
a significant burden, financial and emotional, from students and their 
families who were looking to us for aid.
  I am pleased Senate and House conferees have come to an agreement on 
a transportation reauthorization. Reauthorization of our Nation's 
transportation programs is long overdue.
  Investing in transportation infrastructure creates jobs and improves 
our international competitiveness. We create more than 35,000 jobs for 
every $1 billion in Federal funds we spend on transportation 
infrastructure. The bill will create or preserve an estimated 3 million 
jobs nationwide. In Michigan, the bill will provide more than $2 
billion over the next 2 years for road projects and another $261 
million over the next 2 years for Michigan transit projects. Funding 
transportation infrastructure improvements at robust levels is one of 
the most obvious things we can do to help boost the U.S. economy.
  The conference report extends Federal surface transportation programs 
at current levels, with a small adjustment for inflation, through 
September 2014. Given the difficult budget climate, this has to be 
viewed as a victory. Our State transportation agencies need to be able 
to do long-term planning. This bill helps that cause and is surely 
better than the short-term extensions we have been living under. Given 
the negative budget climate and the difficulty we had finding the 
revenue to offset the highway trust fund shortfall, a 2-year bill is 
what is possible, although I would have preferred a longer term bill.
  I am pleased the agreement includes a provision that would direct the 
Corps of Engineers to accelerate its feasibility study of preventing 
the inter-basin transfer of aquatic invasive species, such as the 
destructive Asian carp, between the Mississippi River and the Great 
Lakes basins. While the Corps is planning to produce an interim report 
at the end of 2013, this provision would require a full feasibility 
report that would also include a recommendation for implementing 
preventative measures. Accelerating this study will put us on a better 
track to protect our $7 billion Great Lakes fishery that supports 
thousands of jobs.
  The conference agreement includes a provision regarding harbor 
maintenance that is based on an amendment to the Senate Transportation 
bill. This is the first time we have addressed harbor maintenance in a 
transportation bill, and including this language will help elevate this 
important issue and strengthen momentum to use trust fund receipts for 
harbor maintenance.
  I am disappointed, however, that the provision in the conference 
agreement does not include the strong enforcement language I urged 
conferees to include that would ensure that appropriators actually 
include funding for harbor maintenance that is collected for this 
purpose.
  Navigation infrastructure is a vital link in the transportation 
system, one our economy depends upon. Maintaining our harbors and ports 
is vital to our economic competitiveness. I will continue to work to 
ensure that we provide sufficient Federal funds to properly maintain 
our harbors.
  The conference agreement also extends for 1 year mandatory PILT 
funding, or payments in lieu of taxes, that will provide about $4 
million to Michigan local governments to help offset losses in property 
taxes due to nontaxable Federal lands within their boundaries. These 
payments can help support a variety of infrastructure and educational 
needs. I had urged conferees to include this provision in the bill, and 
I am pleased it was included in the final agreement.
  The conference report should provide some much needed equity to 
Michigan and other States through a 5-year reauthorization of the 
National Flood Insurance Program.
  Michigan residents have paid more than six times more in premiums 
than they have received in payouts from the National Flood Insurance 
Program. We must correct this disparity, and the conference report 
takes some steps to do so in requiring that premiums be more reflective 
of the true risk of flooding.
  The conference report will phase out subsidies for repetitive-loss 
properties that continue to be rebuilt in high-risk areas. It will also 
phase out subsidized rates for vacation homes and businesses located in 
high-risk areas, many of which have received subsidized rates for more 
than 30 years.
  This bill will clarify the law to allow property owners to purchase 
flood insurance from a private insurer, rather than the Federal 
Government, if they so choose. This means private companies can compete 
with FEMA to offer consumers a better price.
  Finally, I am very disappointed that the conference report removes an 
offshore tax provision that I authored with Senator Conrad to fight 
against tax evasion. This provision, which was included by voice vote 
in the Senate bill and is similar to a provision I introduced as part 
of a broader offshore tax bill, was scored as raising over $1 billion 
over 10 years and could have helped pay for transportation programs or 
reduced the deficit. I am disappointed that Congress has yet again 
missed an opportunity to fight offshore tax evasion, which robs 
billions of sorely needed dollars from our Treasury each year.
  The legislation before us today does not include everything I had 
hoped for or supported, but it is necessary, and we should pass it 
without further delay.
  Mr. HATCH. Mr. President, at the first public meeting of the 
conference committee charged with producing transportation 
reauthorization legislation, I laid out a series of basic principles 
that I think should guide our efforts to finance transportation policy. 
I had voted against the Senate bill in large part because it failed to 
follow these basic principles.
  Boiled down, these principles are simple. The user-pays model that is 
the reason for the creation of the Highway Trust Fund should be 
preserved. Revenues and spending should line up on a year-to-year 
basis. We should avoid spending down the trust fund. And we should not 
raise taxes, but rather should examine the spending side of the ledger.
  The conference agreement is an even further departure from these 
principles than the Senate bill was. The conference agreement by and 
large uses sources of revenue that are problematic in and of themselves 
to facilitate yet another general fund transfer that requires our 
Nation to make payments for 10 years on 2 years of programs.
  Despite all of the committee markups, and staff meetings, and press 
conferences, and frantic press accounts, at the end of the day we 
simply got the fourth in a series of general fund transfers that 
stretches back to 2008.

[[Page S4758]]

  I think the supposed consensus the conference committee product 
represents can best be summed up by the Margaret Thatcher quote I cited 
at the Finance Committee markup of a revenue title held on February 7.
  ``To me consensus seems to be the process of abandoning all beliefs, 
principles, values and policies in search of something in which no one 
believes, but to which no one objects the process of avoiding the very 
issues that have to be solved, merely because you cannot get agreement 
on the way ahead . . .''
  Well I object. The taxpayers of this country deserve better than this 
legislation, and I will be voting against it.
  Mr. LAUTENBERG. Mr. President, I rise today to oppose to the flood 
insurance language that is included in the conference report to 
accompany H.R. 4348, which the Senate will consider today.
  The Senate had been debating a stand-alone bill to reform the 
National Flood Insurance Program for several days, but we were 
prevented from voting on amendments to the bill and ultimately passing 
the legislation. Since agreement on a process for considering flood 
insurance amendments was blocked, we are now forced into an up-or-down 
vote on a conference report that contains provisions that will save or 
create millions of jobs in the transportation sector and keep Federal 
student loan rates from doubling. I will support the conference report 
because of those provisions, but I oppose the flood insurance portions.
  Last September, I saw firsthand how Hurricane Irene's floods 
devastated communities in my State of New Jersey. President Obama and I 
toured the wreckage together. It was heartbreaking. We saw families 
with their belongings on their front lawns, and much of their homes 
destroyed. Unfortunately, Hurricane Irene was not the only storm to 
cause major flooding in New Jersey recently. In just the last 3 years, 
FEMA has declared five federal disasters that caused major flooding in 
New Jersey. For many of the people who have been hit by these floods, 
their homes are all they have. Many of them have owned their homes for 
generations. They have raised their children and built their lives in 
them. For these homeowners, it would be wrong to turn our backs on 
them. But I am afraid the flood insurance language in the conference 
report could do exactly that.
  The flood insurance language we are considering will require major 
insurance premium increases for people living in certain homes built 
before FEMA's flood maps were finalized. For years, families who bought 
homes built before floods maps were available paid lower rates for 
their flood insurance. We did that because we recognized it would be 
wrong to charge extremely high premiums on families who did not know 
their flood risk when they purchased their home. But the flood 
insurance reform proposals on the table would bring the hammer down on 
those families. Most families affected by the change would see their 
premiums double. Some may even see their premiums increase five-fold. 
In New Jersey, we know of families in over 1,800 homes that would see 
their premiums increase under these provisions. Residents in other 
States, including Louisiana, Texas, New York, Pennsylvania, and 
Florida, would also face these dramatic rate hikes.
  To address some of these concerns, I introduced two amendments on 
flood insurance this week. One would have prevented premium increases 
for primary residences built prior to 1974, and the other would have 
allowed the increases to occur for some homeowners, but provided for a 
hardship exemption from premium increases for families that cannot 
afford the higher rates. Let's remember, many of these homeowners rely 
on fixed incomes, are retired, and have budgeted with the expectation 
that their premiums would stay steady. We should not change the rules 
in the middle of the game when homeowners have played by those rules 
from day one. Many of these families simply do not have the means to 
raise more money if rates increase.
  I also cosponsored an amendment from Senator Pryor to eliminate a 
requirement in the stand-alone bill that owners of homes behind dams 
and levees obtain flood insurance. I am pleased that the language in 
the conference report does not include that requirement.
  Flood insurance reform will have real implications for millions of 
people throughout the United States, including in my home State of New 
Jersey. Changes to the National Flood Insurance Program should not be 
taken lightly, and deserve to be debated and amended on the Senate 
floor. I am disappointed my Republican colleagues have prevented us 
from considering important flood insurance amendments this week, and I 
oppose including flood insurance reform in the legislative package we 
are considering today.
  The PRESIDING OFFICER. Under the previous order, the question is 
agreeing to on the conference report to accompany H.R. 4348.
  Ms. MIKULSKI. Mr. President, I rise in support of the transportation 
conference report. This legislation will establish for the first time 
Federal safety standards for metro systems.
  My promises made are promises kept. After the deadly DC Metro crash 
on June 22, 2009, I promised two things to the workers at Metro and my 
constituents who ride Metro. One, I would deliver the $150 million in 
dedicated funding for Metro's capital improvements in the annual 
Transportation appropriations bill. I have done this every year. Two: 
pass legislation giving the U.S. Department of Transportation authority 
to establish safety standards for metro systems across the country. 
Today, this legislation delivers on that promise.
  We always say a grateful nation will never forget. Then we pound our 
chests, hold hearings, and nothing is ever done. Well, not this time 
and not this Senator. Immediately following the Metro crash, I was the 
first to introduce a bill, the National Metro Safety Act of 2009, to 
establish Federal standards. My bill required the U.S. Department of 
Transportation to work with the National Transportation Safety Board to 
implement their most wanted safety recommendations: crashworthiness 
standards, emergency entry and evacuation design standards, and data 
event recorders for rail cars; and hours-of-service regulations for 
train operators.
  Now, 3 years later, Congress has finally acted. This highway bill 
includes similar language to my transit safety bill. It requires the 
Secretary of the U.S. Department of Transportation to create and 
implement safety standards and a safety training program. The Secretary 
must also take into consideration the recommendations of the National 
Transportation Safety Board when establishing the safety performance 
standards for railcars.
  This bill before us today also requires transit authorities to 
complete comprehensive safety plans and States to have a safety 
oversight program approved by the U.S. Department of Transportation. 
The Secretary must certify that these oversight programs are meeting 
the new Federal safety standards each year. If a State oversight agency 
is not doing its job, the Secretary can withhold Federal funding or 
require that 100 percent of funding be used to fix the metro system's 
problems.
  In addition, the U.S. Department of Transportation has the power to 
conduct inspections, investigations, and audits of transit system 
railcars, facilities, and operations. It can also investigate accidents 
and provide corrective guidance. The Secretary has the authority to 
issue a subpoena when investigating an accident as well as require 
additional reporting and recordkeeping.
  Every weekday more than 7 million people board railcars. Now they can 
breathe a bit easier knowing their metro will soon have Federal safety 
standards just like commercial buses, airplanes, and commuter rail 
systems. I want to thank Senators Tim Johnson and Bob Menendez for 
working with me on this important safety issue.
  Mr. JOHNSON of South Dakota. Mr. President, today I wish to speak in 
support of the surface transportation conference report. As chairman of 
the Senate Banking, Housing, and Urban Affairs Committee, which is 
responsible for authorizing the public transportation portion of the 
bill, I was proud to serve as one of the conferees.
  After intense and exhaustive negotiations our conference committee 
reached an agreement on a bill that will benefit every American. In my 
home State of South Dakota alone,

[[Page S4759]]

this bill will support 10,000 jobs and across the country it will 
support nearly 3 million jobs. It will improve rural transit service 
and make our Nation's highways safer and more efficient. I am relieved 
that we will not let another construction season go by without 
certainty of Federal funding.
  From the start, the Banking Committee worked in a bipartisan fashion 
on the transit reauthorization which is why we were able to pass our 
portion of this bill out of committee by a unanimous voice vote. I am 
happy to say that most of our committee-passed bill is still intact in 
the final product we have before us today.
  This conference report will increase funding for public 
transportation through the end of fiscal year 2014 and deliver critical 
investments in the Nation's aging transit infrastructure.
  In addition, the bill will institute much needed reforms such as 
speeding the construction of public transportation projects. The bill 
also includes transit safety provisions that have been stalled for 3 
years.
  Finally, our bill increases formula funding for all types of transit: 
additional urban and rural formula funds, new money for every State to 
address state of good repair needs, and more money for tribal transit. 
Our Nation's transit systems need more than $77 billion to address 
backlogged repairs. This bill can't address all of those needs, but it 
can ensure that our transit systems don't fall further behind.
  Americans make 35 million trips on public transportation every 
weekday. Many of these trips are in our cities, but in places like 
South Dakota, rural transit service connects seniors with their doctors 
and helps our workers travel long distances to get to jobs. Everyone 
benefits from public transportation, and this is a bill the American 
people deserve.
  This bill wouldn't have been possible without the hard work and 
determination of more people than I can name today. However, there are 
a few in particular that I must single out.
  We would not be at the finish line today if we didn't have Senator 
Boxer as our conference chairwoman. And Senator Menendez, our 
Transportation Subcommittee chairman, worked side-by-side with me on 
transit since we started work on this bill last year. I thank them for 
their support.
  And I would be remiss if I did not mention my staff. Homer Carlisle, 
my lead transit aide, did outstanding work in helping craft this bill. 
In the last year, he worked countless late nights that often lasted 
into the early morning. Additionally, Charles Yi and Dwight Fettig were 
instrumental in getting us to this point today.
  There is just so much credit to go around. We had four committees 
working on this bill and without such dedicated hard-working staffs we 
could not have reached this agreement.
  I am also pleased this conference report will provide stability to 
the Flood Insurance Program by reauthorizing it for 5 years. The 
National Flood Insurance Program protects millions of homeowners and is 
critically important to our Nation's housing market.
  As the people of South Dakota and others across the country have 
experienced firsthand, flooding is responsible for more damage and 
economic loss than any other type of natural disaster. It affects 
people across the Nation, in every State, which is why we are going to 
do the right thing today and pass this bipartisan legislation to 
provide stability and much needed reforms for the program.
  Since 2008, when our last long-term reauthorization expired, we have 
passed 18 short-term extensions of this program. During this time, the 
program has lapsed 5 times, for as long as 33 days, with detrimental 
effects on homeowners and the insurance and housing markets.
  By passing this bill, we will end the uncertainty of month-to-month 
extensions for the NFIP and the families and businesses that rely on 
its $1.2 trillion of coverage.
  This bill is not perfect, and no one has gotten everything that they 
wanted. Unfortunately, we were unable to reach a bipartisan agreement 
on addressing the outstanding debt of the program that has accumulated 
since Hurricane Katrina. But we have found enough common ground to move 
critically important reforms forward. As part of that effort, I want to 
thank my colleagues on the Banking Committee and in the House for their 
cooperation and input.
  The flood insurance bill didn't just come together in one night. It 
came together in countless late nights worked by staff over the last 
year. So I want to take this opportunity to thank my committee staff--
Beth Cooper, Brett Hewitt, Chris Ledoux, Glen Sears, Laura Swanson, and 
Charles Yi for their work on this legislation. Additionally, I want to 
thank Alison Wright MacDonald and James Ollen-Smith from the Office of 
Legislative Counsel.
  Lastly, I am pleased that the conference report includes a provision 
to avert a catastrophic interest rate hike on student loans. If 
Congress had failed to act, over 7 million students, including an 
estimated 31,000 undergraduates in South Dakota, would have seen their 
interest rates double.
  Earlier this month, I talked with students at Southeast Technical 
Institute in Sioux Falls. They told me a rate hike would make it harder 
for them to complete their schooling and would likely deter countless 
students from pursuing their higher education goals.
  At a time when too many students are graduating with enormous debt 
loads, we should not make it more difficult for students to finance 
their education and manage their debt. I am glad we have reached an 
agreement that prevents the rate hike from taking effect. This is an 
important victory for students across South Dakota and throughout our 
country.
  In passing this conference report we will send a clear message that 
it is still possible to work across the aisle and pass commonsense 
bipartisan legislation in the interest of the American people.
  I urge my colleagues to support this bill and I yield the floor.
  Mr. REID. Mr. President, I yield back all time.
  The PRESIDING OFFICER. Without objection, all time is yielded back.
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on adoption of the conference report.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Ms. SNOWE (when her name was called). Present.
  Mr. DURBIN. I announce that the Senator from Colorado (Mr. Bennet), 
the Senator from Hawaii (Mr. Inouye), and the Senator from Colorado 
(Mr. Udall) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Oklahoma (Mr. Coburn), 
and the Senator from Illinois (Mr. Kirk).
  The result was announced--yeas 74, nays 19, as follows:

                      [Rollcall Vote No. 172 Leg.]

                                YEAS--74

     Akaka
     Baucus
     Begich
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Cochran
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Grassley
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--19

     Ayotte
     Barrasso
     Coats
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Hatch
     Johnson (WI)
     Lee
     McCain
     Moran
     Paul
     Portman
     Risch
     Rubio
     Toomey

                        ANSWERED ``PRESENT''--1

       
     Snowe
       

                             NOT VOTING--6

     Alexander
     Bennet
     Coburn
     Inouye
     Kirk
     Udall (CO)
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for the adoption of this conference report, the conference report is 
agreed to.


[[Page S4760]]


       The title was amended so as to read: ``An Act to authorize 
     funds for Federal-aid highways, highway safety programs, and 
     transit programs, and for other purposes.''.

  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I move to reconsider the vote and lay that 
motion upon the table.
  The motion to lay upon the table was agreed to.


                            Vote Explanation

 Mr. ALEXANDER. Mr. President, I am disappointed in the final 
version of this bill. If I had been present, I would have voted against 
it for a number of reasons, including the fact that it violates the 
Budget Control Act, it does not use the money produced from the pension 
reforms to shore up the financial strength of pension systems, and it 
fails to prevent the EPA from regulating coal ash as a hazardous 
material.


                            Vote Explanation

 Mr. BENNET. Mr. President, I want the record to reflect that I 
would have voted in favor of H.R. 4348, but I went home to Colorado to 
be with my constituents, many of whom have lost their homes and are 
facing severe challenges as several fires continue to rage across the 
State.
  By finally reauthorizing our transportation programs for over 2 
years, we will provide some measure of certainty for States, 
municipalities, and businesses across the country urgently in need of 
more than just a 2-month extension. The bill includes resources, 
modeled on legislation that I introduced with Senator Mark Warner, for 
transit-oriented development competitive grants to help local 
communities work with private investors to promote long-term transit 
planning, and the legislation also contains a common-sense modification 
to the rural transit formula for which I advocated. These provisions 
will benefit transit agencies across my State as they provide quality 
service to Coloradans. The bill also maintains continued funding for 
the Payment in Lieu of Taxes (PILT) Program and Secure Rural Schools 
and Community Self-Determination (SRS) Act. These programs are 
lifelines for financially strapped rural counties and local businesses.
  Of course this is not a perfect bill. I am disappointed that the 
conference committee eliminated the Senate provision funding the Land 
and Water Conservation Fund, a program that has been vital to 
preserving Colorado's western heritage. And I would have liked to see a 
longer reauthorization, with structural reforms to the highway trust 
fund to ensure we can continue to finance improvements to our public 
infrastructure and leave more--not less--for the next generation. That 
said, I commend my colleagues for all their hard work getting this bill 
across the line.
  I am also pleased that this legislation will prevent loan rates from 
doubling and averts an increase that would have put the dream of a 
college degree further out of reach for thousands of Colorado students, 
and increased an already crushing debt burden on the middle 
class.
  Mrs. BOXER. Mr. President, it has been a very long and winding road 
to get to this place. I am overwhelmed with the amazing vote we just 
had--the margin of success, the fact that this is the product that is 
not only bipartisan but bicameral. I understand that the House vote was 
equally lopsided in favor of passage. I think this sends a tremendous 
signal to the people of America, and that is that we can work together. 
Do not give up hope. When it comes to the well-being of our people, we 
must get together.
  I know the President must be smiling broadly because he has stated 
over and over how important it has been for us to pass a highway bill 
and to pass a reduction in student loan interest rate bill in order to 
help our people.
  I have said many times that what kept me going and so many others--
and I am going to name the various chairmen whom I worked with here and 
over on the House side and staff--what really kept us all going is the 
fact that we know how hard the construction sector has been hit in this 
recession. The housing crisis started this recession. It has not gotten 
better. It is slowly coming around, but new construction is going to 
take a while before all of the inventories are back in their 
appropriate place. What is going to help us? We could fill 10 Super 
Bowl stadiums with unemployed construction workers. We are looking at 
well over 1 million construction workers who are unemployed. Well, this 
was the answer.
  The transportation sector is hurting. The construction sector is 
hurting. And today we have sent a message, a powerful message that for 
2 years and 3 months, we have funded a good bill that is going to 
employ up to 3 million workers and help thousands of businesses, and it 
is all in the private sector, the things that need to be done.
  We know we have 70,000 bridges that are deficient. We know we have 50 
percent of our roads that are deficient. We know we have transit 
systems that need capital improvements. We know we have bike paths that 
need fixing and pedestrian walkways that need fixing. All of that has 
been resolved.
  Are there things in this package that I do not like? Absolutely. Are 
there things in this package my Republican counterparts do not like? 
Absolutely. We had to give. We had to take. We struggled.
  I am going to read into the Record the names of these staffers. This 
is an unbelievable list. I am going to do it quickly. I am going to say 
to these staffers from the various committees that they knew how 
important their work was.
  If we didn't succeed, there would be no more money in the highway 
trust fund, and all of the repairs on our roads would stop and the 
repairs on our bridges because everybody out there, since President 
Dwight Eisenhower was President, depends on the Federal share.
  We cannot have a strong economy without a strong infrastructure. Here 
are the names. I am not reading Democrats and then Republicans; I am 
reading the bipartisan list of staffers: Bettina Poirier, Ruth VanMark, 
David Napoliello, James O'Keeffe, Andrew Dohrmann, Murphie Barrett, 
Tyler Rushforth, Kyle Miller, Jason Albritton, Grant Cope, Mike Burke, 
Tom Lynch, Mark Hybner, Charles Brittingham, Alex Renjel, and Dimitri 
Karakitsos.
  I also thank the leadership staff. When things were looking glum, 
there they were. They are David Krone, Bill Dauster, and Bob Herbert.
  Here are the staff directors of the key committees who worked on 
this--remember, this was a four-committee process, including EPW, 
Banking, Commerce, and Finance. I thank Russ Sullivan, Dwight Fettig, 
Ellen Doneski and their extraordinary staff. They include Ryan Abrahams 
with the Finance Committee; Ian Jefferies, David Bonelli, Anna Laitin, 
and James Reid with the Commerce Committee; and Homer Carlisle with the 
Banking Committee.
  I also want to thank the Senate legislative counsel, Rachelle 
Celebreeze and Gary Endicott, whom I drove crazy yesterday by telling 
them to please produce the paper.
  This staff loved their work so much that I thought they would never 
end it. I had to beg them: Please finish because there will always be 
something more you can do. You can always find something better or put 
a comma in a different place. They wanted to make it as perfect as they 
could. There was a time when we just had to say, OK, we are done. They 
got it done. I am very moved of their dedication.
  I know my staff at EPW--for 3 days, the staff members, whose names I 
read--if they got 4 or 5 hours of sleep, they got a lot. They are 
running on empty right now. I tell them that their names will forever 
be in this record, and people they don't know will flourish because of 
their work when we start hiring people to do this infrastructure work.
  I thank my dear colleagues, Jay Rockefeller, Max Baucus, and Tim 
Johnson. No way could I have done it without them. I also pay tribute 
to Mary Landrieu, who is on the Senate floor today. Senator Landrieu 
and her State have gone through so many traumas--so many--with 
hurricanes and all of the attendant problems, and the BP oilspill, 
which did so much terrible damage to her State and the other Gulf 
States--environmental damage, commercial damage, broken hearts, broken 
spirits.
  Let me tell you, you never break Mary Landrieu's spirit. She teamed 
up with Senator Vitter, and they wrote

[[Page S4761]]

the RESTORE Act. Then she went to all of the other colleagues of the 
gulf cost and said: You have to help me. They put together a great 
package. What it means--without going into detail; she will do that--is 
that when the court decision comes down and the funds come to the 
Federal Government for all the violations of law that took place with 
the BP spill, 80 percent of the funds will be directed to the very 
people who got hurt.
  Senator Landrieu, it is an honor and a privilege to work with you. 
You have been a model of a Senator who never, ever stops fighting. I am 
so grateful I was able to step to the plate and help you.
  I will add more names of colleagues, but I don't have time at this 
point. Others want to speak. This is a great moment. The bill we passed 
is a good bill. It is going to speed up project delivery without 
waiving any environmental laws that we keep the protections in and give 
a little more flexibility to the States on the alternative 
transportation routes. But, believe me, we also add a new piece that 
gives more power to the local people to decide on these projects. I am 
so pleased.
  I will add more statements to the Record later today. We have done 
this, and we are going to mark this moment.
  After we get our breath back and get our energy back, we are going to 
look at a long-term solution to the problem of the highway trust fund. 
We know the gas tax receipts are going down, and we have to solve the 
problem. If it wasn't for Senator Baucus and his staff, we never would 
be at this point because we didn't have the funding. They have to come 
up with it. I thank them and the Republicans on the committee.
  With that, I yield the floor, thanking one and all for this 
tremendous vote today.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, before the Senator from California 
leaves the floor, for a much needed rest and relaxation and celebration 
with her extraordinary staff, let me be one of the first to thank her, 
to join my colleagues who have thanked her for her leadership.
  This Transportation bill would not be a reality for the Nation--not 
for California, Texas, New York, or Louisiana,--if it weren't for the 
leadership of the chairperson of this committee. Senator Rockefeller 
was there to push, Senator Baucus was there to push, Senator Johnson 
was there to push, but the leader of this victory was Senator Barbara 
Boxer.
  Her colleague, Senator Inhofe, stood bravely against winds of 
opposition, ideology, without common sense--ideology without regard to 
the needs of the Nation. Senator Inhofe, a Republican, stood against 
those winds and with the Senator from California to produce a jobs bill 
for the Nation.
  I hope people appreciate the extraordinary accomplishment this is in 
the context of the political quagmire we find ourselves in just a few 
months before a very significant national election, with both sides 
hugging the opposite wall. For these two to come forward today and meet 
in the middle of the Chamber and produce a bill with this kind of vote, 
people did not think it was possible up until just a few weeks ago. 
There was still the majority saying it will never happen.
  But I know something about Barbara Boxer, as well. She came here as a 
fighter. Her name ``Boxer'' says it all. It is the way she fought her 
way to the Senate, and she continues to fight not just for the people 
of California but the people of the Nation.

  I knew 2 years ago--now a little over 2 years ago--when the Deepwater 
Horizon platform blew up in the gulf, one of the first people I could 
go to, to ask for help, for support, for ideas and advice about what to 
do would be Senator Boxer. She is a strong environmentalist. She has a 
heart for our oceans, and she understood the challenge of Louisiana's 
eroding coastline--more so than many Members in this body.
  I will be forever grateful for the fact that she and her staff sat 
with me and other colleagues and crafted the RESTORE Act, which is a 
historic piece of legislation. It has no precedent in Congress. It 
will, for the first time, set aside such a significant amount of money 
from a penalty that has yet to be determined by a polluter that has 
been determined--BP--that under the law, after the Valdez spill, now 
has to pay to the Federal Government $1,000 for every barrel of oil 
that was spilled or gushed out of the explosion for months on end. They 
have to pay $1,000 for every barrel of oil that was spilled. The 
estimates are that, unfortunately for our coast, our people, our 
fishermen, shrimpers, charter boat captains, and the pelicans, fish, 
shrimp, and oystermen, for us it was 5 million barrels of oil spilled 
between August and July, until the well was capped. It is the largest 
pollution event in the history of the Nation. It will be the largest 
fine.
  I have every confidence that the people of the gulf coast and the 
Nation will find justice in the courts. I hope this fine is as high as 
it can be, based on the damage that has been done from Texas to Florida 
and off the coast of Louisiana. When I brought this to Senator Boxer, 
she understood that we had to find a way for justice in the gulf. I 
crafted the RESTORE Act with my colleague Dick Shelby. For months we 
negotiated about how to craft it, what to say, how to specifically 
direct the funding, and had the benefit of having the support of the 
White House, the support of every commission and every individual 
appointed by the President supportive of this idea.
  So I first thank the VP's Presidential commission that was one of the 
first to step up and support this concept of an 80-percent set-aside 
and redirect to the gulf.
  I particularly thank Secretary Ray Mabus, whom we will remember led 
the President's first commission, former Governor of Mississippi, who 
knows the gulf coast well and understands Louisiana's coast as a 
neighbor for so long. He stepped up and said: Yes, this is the right 
thing to do. We had hundreds--and, really, thousands--of individuals 
and hundreds of organizations that started to come forward.
  Let me name a few: the Environmental Defense Fund was absolutely 
instrumental, National Audubon Society, National Wildlife Federation, 
Nature Conservancy, Ocean Conservancy, Oxfam America, and GNO, Inc.--
Greater New Orleans, Inc. They were some of the first organizations to 
step up.
  The Greater Houston Partnership was invaluable in the early days to 
build support among the business community, as were the Mobile Chamber 
of Commerce, Ducks Unlimited, America's WETLAND Foundation, Restore or 
Retreat--a vibrant local and dynamic organization in south Louisiana--
Chamber of Southwest Louisiana, Baton Rouge Area Foundation, and Women 
of the Storm--representing thousands of women, not just throughout the 
gulf coast, but as well from your State and every State. Women stepped 
up who said this kind of accident has to stop. This kind of explosion 
should never happen again.
  Most important, they said the people who were hurt the most, the area 
damaged the worst should be compensated by this fine. This money should 
not come to the general fund of the United States to be spent 
everywhere else in the Nation for a variety of unrelated purposes. The 
RESTORE Act says: No, the right way for this money to be allocated is 
to the area where the accident occurred, where the injury occurred, and 
that is exactly what RESTORE does--no more and no less.
  There is one other person who deserves particular thanks and a 
shoutout, and that is the Senator from Rhode Island Sheldon Whitehouse. 
When Senator Shelby and I finished crafting this bill, which was 
introduced by a few colleagues--a similar bill--on the House side, 
Representative Steve Scalise, Cedric Richmond, and Representative 
Bonner from Alabama--we were having a great deal of difficulty moving a 
bill through a committee that only had two gulf coast Members and 
Senator Boxer.
  The other Members were sympathetic but not that enthusiastic, and I 
can most certainly understand why. As you know, this is going to be a 
tremendous amount of money. It is going to direct these funds to only 
five States. They were sympathetic, but what was in it for everyone 
else? Sheldon Whitehouse and I put our heads together and came up--it 
was his idea--with the bill itself and thought maybe we could, as a 
part of RESTORE--an integral part of RESTORE--say perhaps the oceans 
deserved justice as well because water knows no boundaries. What 
happened

[[Page S4762]]

in the gulf could have impacts in the Atlantic, up the Atlantic, and 
out to the Pacific. Who knows. And that is the problem. We don't have 
enough scientific research going on in this Nation about our oceans, 
which is 70 percent of our planet. In Louisiana, we derive great 
pleasure, joy, and income from our oceans, and from our oil and gas 
exploration, which is usually safe, on any normal day. This was not a 
normal day in the gulf, not a normal operation when the Horizon rig 
blew up. We get our fish, our oysters, our seafood industry, our 
restaurant industry, our hotels, and our ecotourism--and I could go on 
and on--from the ocean. We make our living from the ocean. Senator 
Whitehouse and I thought--and I think most reasonable people agreed--
the oceans deserve something out of this. So at no cost to the five 
States, we put in a provision that a small portion--a half percent of 
the interest earnings that would be generated--not the fund itself, not 
taking money away from the gulf coast, as some have claimed, but 
appropriately saying interest earnings--would create a trust fund for 
the oceans so that every State could use it for research along their 
coast.

  But that was a bridge too far for the Republican leaders in the House 
who think we can learn nothing, who want no partnerships, no research 
whatsoever, I guess, to go on in the oceans. So as that amendment 
became a part of the committee process over here, we had that amendment 
connected to RESTORE at the committee level. It was part of RESTORE. It 
was moved to the floor and it enabled us to build a broader coalition, 
which is the way legislation is built. It is not one person's idea. It 
is not one person's work. The best of the bills and legislation we pass 
are about teams, about generosity and sharing and understanding, a 
little give here, a little take there.
  It is a shame there are some people on the other side of this Capitol 
who don't seem to know that is the basic operation of a democracy. I am 
not sure what books they read in school, but they weren't the ones we 
read at Ursuline Academy, taught by the Ursuline nuns. But Sheldon 
Whitehouse read those same books, and we put this bill together. I 
couldn't have been happier. Not only could I go home and say we did 
this great thing for the Gulf of Mexico and that everyone came together 
to help us in our time of need, but I could also look at our great 
friends from other parts of the country and say there is a portion in 
here for the oceans.
  That is how the bill came to the floor. One of my proudest days, in 
my 16 years here in the Senate, was when this Senate voted, under the 
leadership of Senator Boxer and myself and Senator Shelby, for this 
bill--the RESTORE Act--with 76 votes. I don't think the transportation 
bill itself got 76 votes, to indicate how difficult it is to get 76 
votes. Other than just for immaterial items, it is hard to get 76 votes 
for apple pie and Mother's Day greetings. But we got 76 votes, and I 
was so proud. Not only was it the right thing to do--a great help to 
the region I help to represent--but also very fair, with the inclusion 
also of the land and water, which was not part of RESTORE but an 
amendment that was put on to help this effort with other parts of the 
country. So the good news is we passed that bill and paid for it in 
full over here with a pay-for that was also agreed to by 76 Senators.
  But when the bill went over to the House, one of the first and most 
serious detrimental things that happened was the oceans endowment trust 
fund was stripped out. I want those who stripped it out to know this: 
We will be back. We are going to lead a coalition of Democrats and 
Republicans in the Senate who are going to send a strong message to 
House Republicans that the oceans do deserve our time, our attention, 
our love and support and our money. We can't do this on a wish and a 
prayer. We have wildlife and fish and migratory birds that depend on 
healthy oceans. The people of our country and the world depend on that.
  This will not be the last time they see the national oceans 
endowment. I will be proud to have my name right next to Sheldon 
Whitehouse's and we will go into battle again.
  But around here, you don't win everything every day, and so they cut 
it out. But we will put it back and it will be bigger and stronger than 
it was when they took it out.
  The other thing the House Republicans did, which I have no 
understanding of why, to pay for this RESTORE Act, the student loans, 
the transportation bill, and the flood insurance bill, is they took 
$700 million away from Louisiana's Medicaid budget. I will have more to 
say about the details of that later, because I want to stay focused on 
RESTORE, but I want to put in the record what our Commissioner of 
Administration said, who, of course, works for Republican Governor 
Bobby Jindal, and Republican Secretary of Health and Hospitals Bruce 
Greenstein:

       . . . the loss of more than $400 million--

  And that was in fiscal year 2013, and it was another $250 million, so 
it was $650 in 2014.

     --in so-called FMAP money, already built into the state's 
     Fiscal 2013 budget passed by the Legislature and signed into 
     law by Gov. Bobby Jindal, would altogether lead to a loss in 
     Medicaid dollars that would require $1.1 billion in cuts.

  Mr. President, I ask unanimous consent to have printed in the Record 
a copy of this quote from Paul Rainwater and Bruce Greenstein.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Louisiana Commissioner of Administration Paul Rainwater and 
     Secretary of Health and Hospitals Bruce Greenstein said the 
     loss of more than $400 million in so-called FMAP money, 
     already built into the state's Fiscal 2013 budget passed by 
     the Legislature and signed into law by Gov. Bobby Jindal, 
     would altogether lead to a loss in Medicaid dollars that 
     would require $1.1 billion in cuts.

  Ms. LANDRIEU. The House Republicans who came up with this idea 
insisted on this offset when there were others that could have been 
offered that were much more fair, much less impactful, and much less 
hurtful. There were some Republican Members who absolutely insisted 
this offset be included, and so the Republican Governor Bobby Jindal, 
with a Republican legislature and a Republican delegation in the House, 
will have to find a way forward. I am not sure what that way is going 
to be, but when the bill left the Senate that was not even discussed 
under any circumstance whatsoever.
  But even this terrible action taken on the House side cannot diminish 
the extraordinary victory of the RESTORE Act. Bills such as this, that 
basically distribute anywhere from $5 billion to $20 billion for 
coastal restoration efforts, take years, even decades to pass. We did 
this in 2 years, working together, staying focused, and building a 
support structure nationwide from the business community to the 
environmental community. The Chamber of Commerce stepped up, the 
American Petroleum Institute did their part, and many of the oil and 
gas companies stepped up as well. With the coalition of 
environmentalists, business organizations, wildlife enthusiasts, we 
were able to get this significant bill passed. It is going to be a 
tremendous downpayment for the challenge in the gulf coast.
  Let me, for the record, say again that there were 86,985 square miles 
of water closed to fishing, approximately 36 percent of Federal waters 
in the gulf that were closed to fishing for months, causing a loss to 
the industry of $2.5 billion. There were 600 miles of the gulf 
coastline that were oiled. Over half of those miles were in Louisiana, 
and some oil is still lingering. In fact, scientists who have been 
studying the baseline said the erosion of the marsh that was oiled was 
eroding at twice the speed as normal, and that normal erosion is pretty 
breathtaking in terms of its rate.
  We have lost basically the size of the State of Rhode Island in the 
last 50 years. If our delegation is not successful in continuing to 
have victories such as this, it is conceivable, with the climate change 
that is happening, the rising of the tides and the frequency of these 
great storms, that one day, if we are not successful in preserving 
these wetlands--and these are wetlands of all of America, that drain 40 
percent of our Nation, that supply 40 percent of the fisheries to 
everybody, and 80 percent of the oil and gas to everyone--that New 
Orleans will be existing as a city with a 30-foot concrete levee around 
it and everything else washed away--our culture, our hope, our way of 
life.

[[Page S4763]]

  I have said this a thousand times: We are not sunbathing here in 
south Louisiana. We are not vacationing in south Louisiana. We have 
fun, we have weekends where we fish and we hunt, but we are not 
vacationing for weeks and weeks in south Louisiana, lying on the beach 
and getting a tan. There are no beaches to lie on. We only have two. 
Grand Isle is 7 miles long, and Holly Beach, which got washed away in 
Rita and still has not been rebuilt.
  The Corps of Engineers continues to tell me there is nothing they can 
do for the last inhabited island off the coast of Louisiana. Well, 
there is a lot they can do, and we will see to that in another bill. 
But we want these wetlands preserved for our children, for our 
grandchildren, and for the economic vitality of the Nation. This is the 
mouth of the greatest river system in North America and we intend to 
save what we can. We will never get everything back. We have lost 1,900 
square miles since 1930. We lose 25 square miles of wetlands each year, 
and we lose a football field every 30 minutes.
  Two million people live in coastal Louisiana, about \1/2\ million in 
Mississippi, about 1 million in Alabama, and probably about 4 million 
in Texas. We cannot get up and move. There is no place to go. We don't 
want to live in Arkansas and Missouri. We want to live on the gulf 
coast, and we have been there since before this Nation was a nation, 
and we are not leaving. We are tired of retreating. We know this can be 
done. We have been to The Netherlands and places around the world where 
wetlands have been saved--levees built that don't break. It is cost 
effective in the long run. In the short run it costs investment. In the 
long run, it creates wealth for everyone.
  Three trillion dollars is contributed to the national economy by the 
gulf coast every year, 17 percent of the national GDP comes from the 
gulf coast every year, 50 percent of all the oil and gas that fuels 
this Nation comes from the gulf coast, and 80 percent comes from 
offshore. Every year, despite how much we do, we get zero back from 
offshore oil and gas drilling off our shore. The interior States have 
received 50 percent since 1923, but not Texas, not Louisiana, not 
Mississippi, and not Alabama. We drill, drill, drill, and send oil 
everywhere, keeping lights on everywhere. The pipelines just run 
through our State. We are happy to have the industry, but we would like 
to share the revenues with the Federal Government. We send to the 
Federal Government about $6 billion a year, and have for decades. So 
when people say, don't you ever get embarrassed by asking for so much 
money? No. I could not possibly ask for as much money from Washington 
as we have already sent here. So I am going to continue to ask for 
funding for our State because we send off of our coast, and we are 
happy to do it, but we believe in fair partnerships and mutual respect. 
And until we get that, I am not going to stop advocating for our State. 
So RESTORE is a first step. It is the right step.
  It is the fair step and justice for the goals for right now. This 
isn't taxpayer money. No taxpayers are paying this. BP is going to pay 
this. But we are going to come back next year and talk about the 
sharing of the tax revenues that the oil companies--not individuals but 
the oil companies--pay to the Federal Government every year for every 
barrel of oil, every cubic foot of gas they take out of the gulf. That 
sharing should be done not just here in America, it should be done off 
the coast of Africa, off the coast of South Africa, off the coast of 
Brazil, off the coast of Ghana, so the people who live along the coast 
can be respected, since that is where the drilling and the exploration 
is taking place.
  Just as people in North Dakota and Utah and Wyoming share their 
revenues with the Federal Government, we intend to have a more robust 
revenue-sharing effort in the future. But until the day that happens--
and I am confident, as sure as I am standing here, it will--this 
RESTORE money will go as a significant downpayment to help jump-start 
coastal efforts. We are not doing it like every man or woman for 
himself. It is not a grab bag for Governors. Senator Shelby and I 
carefully crafted this so the money will be spent wisely, well, and 
efficiently in coordination with the Federal and State governments.
  Is it going to be perfect? No. I am sure we are going to have some 
stumbling blocks. But this is unprecedented in its nature. This kind of 
public works effort has never been undertaken in this great way. So the 
scientists hopefully will lead us, the engineers and designers will 
design what we need, and we can continue giving our best effort in 
hopes of saving a great place on this Earth; that is, the great marshes 
of the gulf coast and the great delta that this mighty Mississippi 
River built thousands and thousands of years ago and leave it better to 
our grandchildren than most certainly we found it.
  It has been a wonderful part of my life's work. It has been a worthy 
project to work on. There are others who have most certainly joined me 
in this leadership. But I am very proud of the work this Senate did and 
very disappointed in some things the House did on it. But as Senator 
Boxer said, it is legislation and we just can't have a perfect bill. It 
was better to get this than to leave it on the cutting-room floor, even 
though they did leave important pieces of it there.
  I wish to thank Senator Boxer's staff, in particular, Senator 
Inhofe's staff for being so courteous, and Senator Boxer's staff for 
being very tenacious--to Tina and Jason particularly--to help us 
negotiate one of the great environmental pieces of legislation in 
decades.
  I yield the floor.
  Mr. LIEBERMAN. Mr. President, I rise today to discuss the 
transportation reauthorization bill that passed today. Having served on 
past transportation bill conference committees, I know the long hours 
and intense negotiations that were required to prepare this bill for 
consideration today, and I want to extend my congratulations, 
appreciation, and respect to Senators Boxer and Inhofe. I know from 
past experience that they are both principled, tough negotiators, and I 
am sure that is why the transportation bill returned from conference 
with so many key provisions intact.
  In March, the Senate acted in a bipartisan manner to pass a 
transportation bill that contained significant achievements for our 
country, and would have greatly benefited my State of Connecticut. The 
bill would have reduced red tape for transportation projects while 
still protecting our environment and resources. It included a provision 
I worked on with my colleague from Delaware, Senator Carper, which 
would have required cities and States to take air quality goals into 
account when drafting transportation plans. It also would have provided 
mass transit benefits the same tax beneficial treatment as parking 
benefits, and would have funded Connecticut's transportation programs 
at a level that met our basic needs for the next few years.
  The bill that came back from conference retained many of these 
provisions, but I regret to see that it weakened others and discarded 
some of the rest. As I stated earlier, I am no stranger to working on a 
conference committee, and I fully realize that the best legislation is 
produced through a give and take on various issues. Clearly, that was 
the case here. Despite my disappointment on some of these compromises, 
I believe that it was essential that we acted to ensure that our 
national transportation programs did not lapse on July 1, and that is 
why I supported the transportation bill conference report. I would like 
to take a few minutes to briefly explain some of my concerns, and why I 
ultimately voted the way I did.
  My concerns can generally be broken down into three categories: 
environmental, Connecticut-specific programs, and the long-term 
viability of the transportation system. First, let me touch upon the 
environment. We have come a long way since the days when Federal and 
State transportation departments labored under the mistaken belief that 
building our roads and highways bigger was better, no matter the 
consequences. We have long since realized that land deserves to be 
preserved, the purity of our water protected, and our air quality 
improved. I worry that the bill would be a step backwards because it 
would waive environmental reviews of many transportation projects, 
including some in environmentally endangered areas of our country. By 
providing a categorical exclusion under the National Environmental 
Policy Act for any projects within an existing

[[Page S4764]]

operational right-of-way, I can foresee wetlands being filled, 
sensitive habitat threatened, and resources spoiled, all without any 
environmental review. There is a right way and a wrong way to expedite 
projects, and I believe this is the wrong way. I understand this was a 
necessary concession in order to get a conference report agreed to, but 
I hope it will be addressed in the future.
  The second concern I have is the impact of the bill on my State, 
Connecticut. The Federal highway program is just that: a Federal 
program that is intended to address the needs of the national 
transportation system. Nonetheless, our country's different regions 
have particular needs. Connecticut, and the Northeast in general, have 
urgent needs when it comes to transportation. My State has one of our 
Nation's oldest transportation systems, because Connecticut has been 
around a long time, one of the Nation's highest ratios of traffic 
volume to miles of road, and is a frequent pass-through State for 
commuters throughout the Northeast. Federal transportation funding 
should go to areas with the greatest need, just as happens with other 
government programs such as farm subsidies and disaster relief. 
Connecticut residents do not protest these agricultural support 
programs despite our paying a disproportionate share of taxes for them, 
but we deserve to receive adequate funds to address our unique 
transportation needs. Under this bill, Connecticut will receive 
inadequate funding. I would urge my colleagues to reconsider this 
problem, as well as the 95 percent minimum rate of return for all 
States, during deliberations on the next transportation bill just as we 
did during consideration of the 2005 transportation bill.
  Finally, I want to take a moment to address a growing concern across 
the country: the future of our Highway Trust Fund. Since the 
establishment of the Federal highway system, we have utilized a user-
fee system to fund our transportation programs. That system served us 
well for years, and relied on a gas tax to fill the Highway Trust Fund, 
which in turn distributed funds to our States. As is so often the case, 
with the good comes the bad: as we make cars that are more fuel 
efficient, thereby cleaning up our air and reducing emissions, we also 
purchase less gas per mile driven, and the amount of money flowing into 
the Trust Fund shrinks as a result. The gas tax has stayed static at 
18.4 cents per gallon since 1993. Because it is not adjusted for 
inflation, the federal gas tax has experienced a cumulative loss in 
purchasing power of 33 percent since 1993. For 4 years now, the Trust 
Fund has been running a deficit and we have had to bail it out with 
transfers from the Treasury. This is not the way the system was meant 
to work, and it is not a way it can long survive.
  The blame lies at all of our feet. Neither party has had the courage 
to face the reality that we are running out of money for our roads and 
bridges. Instead of dealing with the problem, we have continued to bail 
out the trust fund, hoping that some future Congress will take 
necessary steps to fix this problem. I applaud my colleague from 
Wyoming, Senator Enzi, who took a stand and proposed adjusting the gas 
tax for inflation, basically a half-cent a gallon increase. This could 
have gone a long way to reducing the amount of money we need to use to 
bailout the trust fund. Unfortunately, we never had a chance to discuss 
the matter. I understand that colleagues do not want to talk about 
raising taxes. But in the end we have no choice but to talk about 
raising taxes if we want our transportation infrastructure to keep pace 
with our people's needs.
  We need leadership from Congress, and the President, to face the 
facts: our transportation system is both broke and broken. The system 
does not have funds for some basic repairs, let alone to make the new 
investments for infrastructure we urgently need. In 2002, the United 
States was ranked fifth, in terms of infrastructure quality, worldwide. 
Today, we have dropped to twenty-fourth. We have fallen 19 places down 
in less than a decade.
  Unfortunately, the large-scale investments we need will not be 
possible until we can fix the funding issue. The Simpson-Bowles 
Commission recommended a 5-cent per year increase to the gas tax for 3 
years. Others have recommended shifting to a system that charges users 
for vehicle-miles-travelled. Such a VMT would ensure that those driving 
fuel efficient, electric, or alternative fuel vehicles pay for the 
wear-and-tear to the roads they cause. Although I will not be a member 
of the Senate when the next transportation bill is debated, I would 
urge my colleagues to begin to address this issue before the trust fund 
goes broke once again. Washington must have the courage to keep all 
options on the table, and then do what works to fix this problem.
  In closing, I wish to again express my gratitude to Senators Boxer 
and Inhofe. This is a true jobs bill, and it will guarantee that 
millions of construction workers are still employed come Sunday, that 
student loan interest rates do not double this school year, and that 
our truly important flood insurance program will be reauthorized.
  I thank Senator Boxer, Senator Inhofe, the staff of the EPW 
committee, as well as the staffers at the Departments of Transportation 
both in Washington and Connecticut, for their efforts in bringing this 
bill to fruition.
  Ms. LANDRIEU. Mr. President, I forgot to thank my own staff, which 
would be very important to do. Elizabeth Weiner, Elizabeth Craddock, 
Jane Campbell, my chief of staff, and my entire staff for their 
tremendous work--we are all going to get a good rest in the week to 
come--and other staff, Tanner Johnson in particular, no longer with my 
staff but who put the original bill together.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. LANDRIEU. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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