[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)]
[Senate]
[Pages S8341-S8346]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                DEPARTMENT OF DEFENSE APPROPRIATIONS ACT

  The PRESIDING OFFICER. The clerk will report the pending business.
  The legislative clerk read as follows:

       A bill (H.R. 1) making appropriations for the Department of 
     Defense and the other departments and agencies of the 
     Government for the fiscal year ending September 30, 2011, and 
     for other purposes.

  Pending:

       Reid amendment No. 3395, in the nature of a substitute.
       Reid amendment No. 3396 (to amendment No. 3395), to change 
     the enactment date.
       Reid amendment No. 3397 (to amendment No. 3396), of a 
     perfecting nature.
       Reid amendment No. 3398 (to the language proposed to be 
     stricken by amendment No. 3395), to change the enactment 
     date.
       Reid amendment No. 3399 (to amendment No. 3398), of a 
     perfecting nature.
       Reid motion to commit the bill to the Committee on 
     Appropriations, with instructions, Reid amendment No. 3400, 
     to change the enactment date.
       Reid amendment No. 3401 (to (the instructions) amendment 
     No. 3400), of a perfecting nature.
       Reid amendment No. 3402 (to amendment No. 3401), of a 
     perfecting nature.

  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I rise to raise a point of order against a 
very small segment of this bill, and I wish to yield myself some time 
to discuss that at this time.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, pursuant to section 904 of the 
Congressional Budget Act of 1974, I move to waive the critical sections 
of that act, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  Under the previous order, there will be 10 minutes of debate equally 
divided prior to a vote on the motion to waive.
  The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I understand the Senator from 
Pennsylvania wishes to speak. I just need to essentially object to his 
point of order. I do this because although I know he is indeed well 
intentioned--Mr. President, the Senate is not in order. This is an 
important precedent that could be set, and I would like Members not to 
talk.
  The PRESIDING OFFICER. If Members would please take their 
conversations out of the Chamber if they wish to talk. If not, could 
they be quiet.
  Ms. MIKULSKI. I want them to more than be quiet. We are talking about 
a precedent in the Senate, so I would like, please, if Senators could 
take their conversations either in the back or off the floor.
  The PRESIDING OFFICER. Yes. OK. If Senators could be quiet and 
listen, and if you must talk, could you do it off the floor.
  The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, the reason I am so insistent is, No. 1, 
the decorum of the Senate; and No. 2, this is a dangerous precedent. If 
this point of order is sustained, it will mean $3.4 billion of urgent 
disaster relief in this supplemental has to be offset in future 
appropriations bills. This will mean real consequences this year.
  Now, in a $1 trillion budget and the way we talk about money $3.4 
billion might not seem like a lot, but it does mean a lot in disaster 
assistance, and it does mean a lot to the Appropriations Committee. 
This is a $3.4 billion unspecified cut that will go to domestic 
programs for fiscal year 2013.
  I wish to remind my colleagues we are in a 6-month CR now, so this 
means right in the middle of a CR, until March, we have to take out an 
additional $3.4 billion. This will have a terrible impact on domestic 
programs, and it is a dangerous precedent. We have never offset 
disaster assistance, and I urge the adoption of my position.

  I yield to the Senator from New York whose community is suffering, 
and he has done an able job in helping to manage this bill.
  Mr. SCHUMER. Mr. President, first, I wish to thank my colleague from 
Pennsylvania. He didn't try to knock out the whole thing and we 
appreciate that. Having said that, I urge any of my colleagues in 
disaster areas to think very carefully before they vote for this. This 
will be the first time ever when a disaster is declared that we have 
offset money for it. That will mean that disaster money will be much 
less readily available in the future. The precedent is an awful one. It 
is something that goes against 100 years of Democrats, Republicans--
north, east, south, and west--voting to, when one area has trouble, 
send the money, without spending months and months and months fighting 
about whether to cut this or cut that or raise these taxes or do this 
or that to offset.
  I would say we had this fight when Irene came about, and 19 of our 
colleagues came to the wisdom that it was a bad idea to offset it, and 
we didn't.
  So I urge and plead with my colleagues, on this quick notice to 
reverse 100 years of decisionmaking and start invoking offsets for 
disaster, which this is--it is mitigation. We have always done 
mitigation. It means that instead of rebuilding in the floodplain, we 
build in a different place nearby. It means instead of putting all of 
these machines that are flooded in the basement, we put them on the 
third floor. It means if there is a beach that is not protected, we 
build a berm. That is mitigation. It is all related to protecting from 
a disaster and not making the same mistake of building in a floodplain 
or not protecting in a subway or whatever.
  We have always done it. We have never offset mitigation, and it has 
been in every disaster relief. So I plead with my colleagues to think 
twice.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I have a different plea for my colleagues; 
that is, to sustain this budget point of order, acknowledging that it 
does not cut one dime of spending from this supplemental. If my budget 
point of order is sustained, every single dime, if it were eventually 
passed--every dime that is allocated for future mitigation would, in 
fact, be spent for future mitigation.
  The question before us is, when we are running trillion-dollar 
deficits, must we add another $60 billion on top of that deficit?
  So what I have done is I have looked at this bill, and there are many 
parts that are not directly in aid of any of the victims of Sandy.
  Look, my State was hit by that storm, not nearly as bad as New York 
and New Jersey and Connecticut and some others. But there are real 
victims of this storm, there are genuine needs, and we need to fund 
those needs. I am in favor of making sure we do fund the needs that we 
have. But we have a category of spending that is going for construction 
for years to come to mitigate against dangers of future storms in 
future years and future decades. That might be very wise, that might be 
very appropriate spending, but it is not an emergency.
  This is not sandbags around someone's house who is in danger of a 
storm. That kind of infrastructure spending is the kind of spending we 
do routinely, but we plan for it and we budget it. If it is, indeed, 
the priority that many people--probably, including myself--believe it 
is, then it ought to be weighed in competition with the other pressing 
needs, and we ought to plan for it and budget for it. That is all I am 
asking.
  So this budget point of order does not cut one dime of spending from 
this bill. It simply says the $3.4 billion that is identified for the 
construction of future mitigation projects would count toward the 
discretionary spending caps we have in place. Unfortunately, our 
deficit would grow if all else stays the same, but at least not by that 
$3.4 billion. That part would eventually have to be offset with some 
modest restraint on discretionary spending at some point.
  But I would stress that there is not a dime that will be cut from 
this bill by virtue of this point of order, and it would establish that 
going forward, hopefully, when we are doing long-term construction 
projects for future mitigation, we would consider them in the context 
of the infrastructure spending that they are.
  So for that reason, Mr. President, pursuant to section 314(e)(1) of 
the Congressional Budget Act of 1974, I raise a

[[Page S8342]]

point of order against the emergency designation in the appropriation 
for the Army Corps of Engineers, ``Construction,'' contained in title 4 
of the substitute amendment. And I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, pursuant to section 904 of the 
Congressional Budget Act of 1974, I move to waive the applicable 
section of that act, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion to waive.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Massachusetts (Mr. Brown), the Senator from North Carolina (Mr. 
Burr), the Senator from Oklahoma (Mr. Coburn), the Senator from South 
Carolina (Mr. DeMint), the Senator from Oklahoma (Mr. Inhofe), the 
Senator from Illinois (Mr. Kirk), the Senator from Utah (Mr. Lee), and 
the Senator from Kansas (Mr. Moran).
  The PRESIDING OFFICER (Mr. Tester). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 57, nays 34, as follows:

                      [Rollcall Vote No. 231 Leg.]

                                YEAS--57

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

                                NAYS--34

     Alexander
     Ayotte
     Barrasso
     Boozman
     Chambliss
     Coats
     Collins
     Corker
     Cornyn
     Crapo
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Isakson
     Johanns
     Johnson (WI)
     Kyl
     Lugar
     McCain
     McConnell
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Thune
     Toomey
     Wicker

                             NOT VOTING--8

     Brown (MA)
     Burr
     Coburn
     DeMint
     Inhofe
     Kirk
     Lee
     Moran
  The PRESIDING OFFICER. On this vote, the yeas are 57, the nays are 
34. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained. The emergency designation is removed.


                            Vote Explanation

 Mr. BROWN of Massachusetts. On Thursday, December 20, 2012, my 
father, Claude Bruce Brown, passed away. Growing up, my relationship 
with my Dad was a complicated one. As we both matured, our 
relationship, respect and love for each other also matured. He was a 
good man with a big heart. Our family--my wife Gail, and my daughters 
Ayla and Arianna--are thankful to his wife, Peggy, her family and for 
their unwavering love for him during his difficult final days. I will 
miss my father's guidance and his sense of humor.
  As a result of my father's passing, I am departing Washington so that 
we can be together and mourn together as a family. Unfortunately, that 
means that on Friday, December 21, 2012, I am not present in Senate for 
three rollcall votes. In my nearly 3 years of service in the Senate, I 
have only missed one vote, and I want to be clear about how I would 
have voted on the measures that are before the Senate today.
  I strongly support the Conference Report to accompany H.R. 4310, the 
Department of Defense Authorization bill, and I would have voted aye in 
favor of its passage. Providing the necessary resources to our men and 
women in uniform is critical, and as a member of the Senate Armed 
Services Committee, I applaud the authors of this legislation for their 
work on this measure. It contains many provisions that I believe are 
important to both the Commonwealth of Massachusetts and the security of 
our Nation.
  Additionally, I would have supported the motion to invoke cloture on 
the Reid substitute amendment No. 3395 to H.R. 1, the vehicle for the 
Hurricane Sandy emergency supplemental appropriations bill. Hurricane 
Sandy had a major impact on the Commonwealth of Massachusetts and had a 
terrible toll on New York and New Jersey especially.
  Finally, on the motion to waive the Budget Act point of order on a 
small portion of that disaster response bill that did not pertain to 
responding to the impacts of Hurricane Sandy, I would have voted no. I 
believe that funding for infrastructure improvements to mitigate the 
impacts of future storms is critical, but should be fully offset in the 
future. This is consistent with all of the new spending efforts that 
are considered under the bipartisan budget controls currently in 
place.
  The PRESIDING OFFICER.
  The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I know the hour is late and there are 
Members who want to go home. We have been through an emotional roller 
coaster here in the Senate, as has the Nation. One week ago we saw this 
terrible, horrific shooting in Connecticut. While the Nation mourned 
what happened there, we mourn here in the Senate because of the passing 
of Senator Inouye. Yet the work of Senator Inouye went on through the 
urgent supplemental.
  I would like to thank the Senator from New York for helping with the 
management of this bill, as well as the Senator from Vermont and 
Senator Landrieu, the chair of the Homeland Security Subcommittee, who 
have all done good work.


                               Dan Inouye

  We Senators know we are only as good as our staff. As the Inouye era 
goes through its transition, I would like to thank the Inouye staff 
first of all for everything they have done on this bill. I thank the 
Inouye staff for all they did in staffing for truly one of the great 
icons in the Senate. Now, do not think the Inouye staff is going to go 
away under Barbara Mikulski. I want to publicly thank them on behalf of 
all of the Senate that they held their own emotions in control so we 
could move forward with the Senate business. That is what professional 
staff is. They are the highest and the best of the best. I think the 
Senate owes them a debt of gratitude. I will lean on them to be back 
here on Thursday to move this bill in regular order.
  I want to just end today's proceedings by saying God bless Senator 
Inouye and all that he meant to America, and God bless the staff, who 
has helped him be one of the greatest Senators in American history.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Would the Senator yield?
  Ms. MIKULSKI. Yes.
  Mrs. HUTCHISON. Mr. President, I want to say that we all will miss 
Senator Inouye. He was one of the most loved people who have ever 
served in this Senate. But I also want to say that we have passed on 
now and will take the bill in its entirety later. But because of the 
leadership of Senator Mikulski and many others working together, we now 
have a start on the supplemental appropriation.
  We have worked in the Senate together to accommodate the concerns of 
many on our side about that bill. We have now had a say. I think there 
will be overwhelming support now for going forward. I think that is due 
to the ability of Senator Mikulski to step to the plate and become the 
first woman chairman of the Appropriations Committee in the history of 
the Senate.
  She has already shown the leadership that will continue in her tenure 
as chairman. I have worked with her as the ranking member of the 
subcommittee this last year on appropriations. She has been chair, and 
I have been the ranking member. I will say that every time we have had 
a disagreement, it has been worked out, and we have passed our bills, 
our legislation. That is what is going to happen next year as she 
becomes the chairman of Appropriations. I think it is a good day for 
the Senate.
  Ms. MIKULSKI. Mr. President, I suggest the absence of a quorum.

[[Page S8343]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SCHUMER. 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. SCHUMER. Mr. President, first, I would like to congratulate 
Senator Mikulski on a fine first day on the floor as chair of 
Appropriations. We are all excited about it on both sides of the aisle 
and expect great things of that committee next year. Perhaps there will 
be a change--we will get appropriations bills done, get them on the 
floor, and move them under her leadership.
  I also want to thank Senator Landrieu, who is not here, who really 
helped out as well, as well as Senator Murray and Senator Feinstein. I 
thank them very much.
  I also thank the staff, which really is professional. In England, 
they are a civil service. It is the highest calling, it is 
professional, and it works hard no matter who is in charge. They do a 
great job. You are our English civil service, which is a very high 
compliment.
  Mr. President, 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. SESSIONS. 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.
  The Chair will announce that following the invoking of cloture on 
Senate amendment No. 3395, the motion to commit fell, being 
inconsistent with cloture.
  The Senator from Alabama.


            Tribute To Navy Commander Jeffrey A. Bennett II

  Mr. SESSIONS. Mr. President, I rise today to honor Navy CDR Jeffrey 
A. Bennett II. Commander Bennett served as a military fellow in my 
office since December of last year. He brought to public service the 
same passion and honor he brought to military service.
  Commander Bennett is a 1992 US Naval Academy graduate who was 
nominated for the academy by the chairman of the Armed Services 
Committee, Carl Levin, several years ago.
  He came to my office after a tour serving as captain of the USS 
Stockdale, an Arleigh Burke class guided missile destroyer. I know he 
was an excellent captain, indeed, I have personally observed Commander 
Bennett's abilities. I am very impressed. He has a good strategic grasp 
of America's challenges, while also mastering the details necessary to 
fully grasp military budget and financial issues, among other matters 
that we deal with.
  His command of defense authorization and appropriations legislation 
from both the House of Representatives and the Senate has been 
exceptional. He consistently puts in late nights and long weekends 
studying the details of legislation affecting programs that are vital 
to our national defense and the State of Alabama.
  More importantly, Jeff possesses excellent judgment. I have valued 
his judgment and insight on global issues as well as the more rigorous 
and detailed issues that come up in the Senate. I can say without 
hesitation, he has fulfilled the high reputation that the Navy 
Fellowship Program has earned in every way. He has been a tremendous 
resource to my office. He is a man of integrity, who puts his country 
first. He is committed to serving America in whatever role he is given. 
All the while, he carries out his duties with exceptional grace, 
collegiality, and positive spirit. I am exceedingly impressed with 
Jeff, both as a person, an officer, and a staff member.
  His time in my office has gone too quickly. We will miss the force of 
his fine mind, his hard work, and his positive approach to all 
challenges. The Navy most surely has an unusually talented and valuable 
officer in Commander Bennett.
  Commander Bennett has served my office with honor and distinction, 
truly personifying the qualities of a U.S. naval officer.
  I would be remiss if I did not thank his wonderful wife Heather and 
his children Grace and Jay. As is the case with all our military 
families, we know that Commander Bennett's service is one supported and 
shared by the whole family. He is, indeed, a great family man.
  I look forward to following his bright career and continuing service 
to God and country.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The majority leader.


                 Unanimous-Consent Agreement--H.R. 5949

  Mr. REID. Mr. President, I ask unanimous consent that notwithstanding 
cloture having been invoked, at a time to be determined by the majority 
leader, after consultation with the Republican leader, the Senate 
proceed to the consideration of Calendar No. 510, H.R. 5949; that the 
only first-degree amendments in order to the bill be the following: 
Leahy, Merkley, Paul, Wyden; that there be 30 minutes of debate equally 
divided between the proponents and opponents on each amendment; that 
there be up to 5 hours of debate on the bill equally divided between 
the proponents and opponents; that upon the use or yielding back of 
time, the Senate proceed to vote in relation to the amendments in the 
order listed; that there be no amendments in order to any of the 
amendments prior to the votes; that upon disposition of the amendments, 
the bill be read a third time and the Senate proceed to vote on passage 
of the bill, as amended, if amended.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. McCONNELL. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. REID. Mr. President, I ask unanimous consent that the request be 
modified--I reluctantly do this--to set a 60-affirmative-vote threshold 
on each of the amendments and passage of the bill.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  The Senator from Oregon.


                       Intelligence Authorization

  Mr. WYDEN. Mr. President, both sides are working to pass the 
intelligence authorization bill for 2013.
  I voted against this legislation when it was marked up in committee. 
I objected to it here on the floor last month. But I am able to support 
it at this time.
  The bill has a number of valuable provisions in it, and I thank 
Chairwoman Feinstein and Vice Chairman Chambliss for making the changes 
in the bill to address my concerns.
  The changes Senators Feinstein and Chambliss have made would remove a 
number of provisions that were intended to reduce unauthorized 
disclosures of classified information, of course, known as leaks.
  I objected to these provisions because, in my view, they would have 
harmed first amendment rights, led to less informed public debate about 
national security issues, and undermined the due process rights of 
intelligence agency employees, without actually enhancing national 
security.
  I am going to take a few minutes to explain my views on this so that 
those who are not on the Intelligence Committee and who have not heard 
this issue addressed before will understand what the debate was about 
and what I believe has been accomplished.
  I certainly agree with Senators that unauthorized disclosure of 
national security information, known as leaks, is a serious problem. 
Unauthorized disclosure of sensitive information can jeopardize 
legitimate military and intelligence operations, and even put lives at 
risk. So I do believe it is appropriate for Congress to look for ways 
to help the executive branch protect information that intelligence 
agencies want to keep secret, as long as Congress is careful not to do 
more harm than good.
  Personally, I have spent more than 4 years working on the legislation 
to increase the criminal penalty for those who are convicted of 
deliberately exposing covert agents, and I was pleased that, with the 
help of Senators on both sides of the aisle, that legislation was 
finally signed into law in 2010. So I am all for the Congress 
recognizing that leaks are a serious problem and for doing things to 
show the men and women of the U.S. intelligence community that the 
seriousness of this issue is recognized in this body.
  It is important for Congress to remember, however, that not 
everything

[[Page S8344]]

that is done in the name of stopping leaks is necessarily wise policy. 
In particular, I think Congress ought to be extremely skeptical of any 
antileak legislation that threatens to encroach on the freedom of the 
press or that reduces access to information that the public has a right 
to know.
  A number of Senators may be aware that my father was a journalist who 
reported on national security issues. Among other books, he wrote what 
has been called the definitive account of the Bay of Pigs invasion, as 
well as an authoritative account of how the United States came to build 
and use the first atomic bomb. Accounts such as these are vital to the 
public's understanding of national security issues. Without transparent 
and informed public debate on foreign policy and national security 
topics, American voters are ill-equipped to elect the policymakers who 
make important decisions in these areas.
  Congress too would be much less effective in its oversight if Members 
did not have access to informed press accounts on foreign policy and 
national security topics. And while many Members of Congress do not 
like to admit it, Members often rely on the press to inform them about 
problems that congressional overseers have not discovered on their own. 
I have been on the Senate Intelligence Committee for 12 years now, and 
I can recall numerous specific instances where I found out about 
serious government wrongdoing--such as the NSA's warrantless 
wiretapping program or the CIA's coercive interrogation program--only 
as a result of disclosures by the press.
  With all of this in mind, I was particularly concerned about sections 
505 and 506 of this bill because both of them would have limited the 
flow of unclassified information to the press and to the public. 
Section 505, as passed by the Intelligence Committee, would have 
prohibited any government employee with a top secret, compartmented 
security clearance from ``entering into any contract or other binding 
agreement'' with ``the media'' to provide ``analysis or commentary'' 
concerning intelligence activities for a full year after that employee 
left the government.
  That provision would clearly have led to less-informed public debate 
on national security issues. News organizations often rely on former 
government officials to help explain complex stories or events, and I 
think it entirely appropriate for former officials to help educate the 
public in this fashion.
  I am also concerned that prohibiting individuals from providing 
commentary could be an unconstitutional encroachment on free speech. 
For example, if a retired CIA Director wishes to publish an op-ed 
commenting on a public policy debate, I see no reason to ban that 
person from doing so even if they have been retired less than a year. 
This provision also would have said that retired officials who comment 
in the media would not be able to serve on advisory boards for the 
intelligence community, which I believe would have deprived the 
community of valuable knowledge and advice.
  Section 506 would also have led to a less informed debate on national 
security issues by prohibiting nearly all intelligence agency employees 
from providing briefings to the press, unless those employees gave 
their names and provided the briefings on the record.
  It seems to me that authorized unclassified background briefings from 
intelligence agency analysts and experts are a useful way to help 
inform the press and the public about a wide variety of issues, and 
there will often be good reasons to withhold the full names of the 
experts giving those briefings. I have seen no evidence that making it 
harder for the intelligence agencies to provide these briefings will 
benefit national security in any way. So I see no reason to limit the 
flow of information in this manner.
  The third provision I thought was troubling was section 511, which 
would have required the Director of National Intelligence to establish 
an administrative process under which he or she and the heads of the 
various intelligence agencies would have had the authority to take away 
pension rights from an intelligence agency employee or a former 
employee. That could be done if the DNI or the agency head determined 
that the employee knowingly violated his or her nondisclosure agreement 
and disclosed classified information.
  I have been concerned that the Director of National Intelligence 
himself said this provision would not be a significant deterrence to 
leaks, and that it would neither help protect national sensitive 
security information nor make it easier to identify and publish actual 
leakers.
  Beyond these concerns about the provision's effectiveness, I have 
also been concerned that giving intelligence agency heads broad new 
authority to take away the pensions of individuals who have not been 
formerly convicted of any wrongdoing could pose serious problems for 
the due process rights of intelligence professionals, particularly when 
the agency heads themselves have not told Congress how they would 
interpret and implement the authority.
  As many of my colleagues will guess, I was especially concerned about 
the rights of whistleblowers who report waste, fraud, and abuse to the 
Congress or the inspector general. I have outlined these due process 
concerns in more detail in the committee report that accompanies this 
bill.
  I would just note for a moment that I was particularly concerned that 
section 511 would have created a special avenue of punishment that only 
applied to accused leakers who worked for an intelligence agency at 
some point in their career. There are literally thousands of employees 
at the Department of Defense, State, and Justice, as well as the White 
House, who have access to sensitive national security information. I do 
not see a clear justification for singling out intelligence community 
employees when there is no apparent evidence these employees are 
responsible for a disproportionate number of leaks.
  For what it is worth, Robert Litt, the general counsel for the 
Director of National Intelligence told the American Bar Association 
last month that in his view these proposals, ``really would not have 
any deterrent impact or punitive impact on leaks, and might in fact 
have an adverse impact on the free flow of information to the American 
people.''
  In summary, I am grateful to the chair of the Intelligence Committee, 
Senator Feinstein, and vice chairman, Senator Chambliss, for responding 
to the concerns that I have outlined by removing nearly all of the 
antileak provisions from this legislation. The provision that remains 
would require the executive branch to notify the Congress when they 
classify information to disclose it to the press.
  I believe this provision will lead to more informed public debate by 
making it clear to Members of Congress whether particular press reports 
are based on authorized but unattributed disclosures that we can 
respond to as we see fit, and unauthorized leaks that would not be 
responsible for us to confirm or deny. So I believe that particular 
provision is useful, and I commend the chair and vice chairman for 
including it.
  In summary, I think we all understand that in these important 
intelligence debates--and I remember when the Presiding Officer was on 
the committee and doing good work--we always understood that it came 
down to striking a balance. There is something of a constitutional 
teeter-totter where on one side we have protecting collective security, 
and on the other said we have the public's right to know and the 
individual liberties of the American people.
  As written, as reported by the committee, I believe that legislation 
would have seriously put out of balance the constitutional ``teeter.'' 
I think it would have harmed legitimate first amendment rights. I think 
it would have done damage to the public's right to know. I believe it 
would have discouraged the ability to ensure that we had a thorough and 
adequate discussion of issues that are so important for the American 
people, as the American people look to the Congress of the United 
States, and particularly this body, to strike the appropriate balance, 
the right balance, between protecting our country at a time when there 
are serious threats and, on the other hand, protecting our individual 
liberties and protecting the public's right to know.
  With the changes the Chair, Senator Feinstein, and the vice chair 
have accepted, I believe this legislation now

[[Page S8345]]

strikes the right balance. With both sides working on an agreement to 
improve the intelligence authorization bill for 2013 by unanimous 
consent, it is my hope that legislation will be approved by unanimous 
consent shortly.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.


                            The Fiscal Cliff

  Mr. SESSIONS. Mr. President, President Obama made a statement within 
the last hour or so. He called on Congress to act to avoid the fiscal 
cliff.
  We know last night the House was unable to bring forward a bill that 
would deal with the fiscal cliff. Previously, they passed a bill that 
would have solved that problem and put us on the right path, but they 
did not pass another bill last night.
  The Senate has not acted. There has been a lot of criticism of the 
House, that the House failed to pass legislation last night. However, 
the Senate has passed no legislation.
  The President made a little speech this afternoon, and I take it as a 
serious statement. But previously he made a speech on his budget plan. 
It sounded good. It had a lot of things in it that sounded good. I 
believe Congressman Ryan, the budget chairman in the House, sent it to 
the Congressional Budget Office and asked that they score it. A score 
means they analyze how much taxes are going to be raised--exactly how 
much--how much spending is going to be increased or reduced, and then 
they lay out an analysis, called a score, of what that proposal 
actually will do. That is what how we are supposed to consider budgets 
here.
  So they sent the President's previous speech over to the 
Congressional Budget Office. The Congressional Budget Office said: You 
cannot score a speech. Sorry. Well, you cannot score a speech.
  We are about to come back in next week. Maybe they will try to finish 
Thursday, maybe go into Friday. But we do not need to have a serious 
matter involving more than $1 trillion of the U.S. taxpayer's money 
dropped on the Senate next Thursday without us being able to read it 
and analyze it and having it scored. We can't be expected to 
rubberstamp it like the old Soviet Politburo, the Duma, where leaders 
would put out the word to the members they would all vote just like 
that, 445 to 5 or something like that. And they called themselves a 
democracy.
  We do not need that in the Senate. We, each Senator, represent 
individual Americans, millions of them. They expect us to know what we 
are voting on. Secret meetings and secret talks between just the 
Speaker and the President is not a good process. I do not know what is 
going on in these talks. I am the ranking member of the Budget 
Committee. I am just one Member of Congress who has a role in this 
process. Many others have a lot bigger role than I have, but none of us 
know what is going on in these secret meetings. But each Senator has an 
equal vote. Each Senator has an equal responsibility to represent their 
constituents.
  So I am uneasy about this process. So I will just say this: Nobody 
should criticize the House of Representatives for not producing 
legislation last night until they have passed their own proposal. The 
Senate has had just as much time as the House to lay out a plan. Months 
ago the House laid out a 10-year budget plan that would put America on 
a sound financial course.
  Everybody can have different views on it, but it is a comprehensive 
plan that would start reducing our deficits and put us on a good long-
term course. It has been complimented by people on both sides of the 
aisle. Meanwhile, the Senate has produced nothing. We have gone 3 years 
without a budget. We have not had a serious and broad debate about the 
financial challenges of America. Senator Conrad had a number of very 
important hearings with witnesses 2 years ago in the Budget Committee. 
We talked about the issues. No bill was brought forth in committee that 
was actually marked up. That was a decision made by the Democratic 
leadership. They decided not to bring forth a budget. It was 
calculated. They never brought one forward despite the fact the law 
requires one. The United States Code requires a budget be brought up by 
April 1. They decided not to do so and would take the criticism from 
people like me. They took their lumps and never brought a budget 
forward.
  Now for 3 years, they never produced a concurrent budget, but they 
have had great fun attacking Congressman Ryan in the House, who passed 
a budget, a comprehensive, historic budget that would change the debt 
course of America--never having produced anything. But we have had a 
number of speeches, a lot of speeches, a lot of outlines, a lot of 
proposals and schemes and plans, difficult to score, and never finally 
reaching fruition so that they could actually be considered by this 
body.
  So I guess what I would conclude with is to say I am glad the 
President discussed the budget problem in a little speech this 
afternoon. He has an entire Treasury Department. He has a Director at 
the Office and Management and Budget overseeing hundreds of budget 
experts. They have more than enough capability to produce detailed 
financial plans and make these plans public. He could make his detailed 
plan public today. Presumably, he would not have made a speech today if 
someone in the OMB or the White House or the Treasury Department had 
not approved the outline of his plan. At the very least, that outline 
ought to be placed in print for everyone to see.
  Senator Reid should bring it up on the floor. It should be sent to 
the Congressional Budget Office to be scored. It should be analyzed. 
They should do that long before the Senate meets next Thursday. It 
should have been done a month ago.
  I do find it odd--think about this--that the President has not laid 
out a plan since the election over a month ago. He won the election. He 
said certain things he wants to see in a plan, higher taxes and more 
spending. Indeed, he had some spending cuts. He said: My plan cuts 
spending. But he has failed to note and acknowledge that the plan, as 
reportedly laid out by Secretary of Treasury Geithner in closed 
meetings, had far more spending increases than spending cuts. So the 
President's proposal as laid out by Secretary Geithner, on net, 
increases spending. It increases spending, it does not reduce spending.
  It has some reductions of spending in it, but spending increases 
overwhelm the spending reductions. So it is not right, is it, for the 
President of the United States to say: I have a plan to cut spending. 
He has been meeting in secret with Boehner, so we have to base this on 
reports, but this is what it appears to do.
  I believe Senator Reid would serve the President well if he called 
him up and said: Let's get that fiscal cliff proposal over here and 
have your team meet with my staff, and we will publish it on Saturday. 
Congress can begin to look at it, and maybe we can beat this January 1 
deadline and not go over the cliff. That would be my suggestion as to 
how we should proceed, and every Senator should have as much time as 
possible to study it. It should be made available to the House because 
they would ultimately also be called on to vote on it. Everyone should 
see it as soon as possible. That is the way government should be run.
  I have written an op-ed, printed in the Wall Street Journal and 
elsewhere, that says America would really be better off had we used the 
legitimate committee process of the Senate to address this problem. The 
President can advocate for his views, the Republicans can advocate for 
their views, and the Democratic Senators can advocate for their views. 
We would actually have votes, and some of them would be tough votes, 
but we can begin to see where we stand, where the votes are.
  If somebody wants to raise taxes and it gets voted down and somebody 
wants to cut taxes and it gets voted down--those votes happen over a 
period of time, and the numbers are all out there for everyone to see. 
At that point, it is much easier to tell your constituents: I have 
truly fought for the things I believe.
  Now, I think it is best for America that we reach a compromise. That 
would be better than this process by which the whole Senate sits while 
the Speaker of the House and the President of the United States meet to 
develop a plan that we are presumably expected to, like the old 
Communist Duma, ratify at the eleventh hour without time to actually 
study it, with no real input. That is how this government, this Senate, 
was meant to work.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.

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  The PRESIDING OFFICER (Mr. Wyden). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The majority leader.


                Amendments Nos. 3396 and 3398 Withdrawn

  Mr. REID. Mr. President, I ask unanimous consent that the following 
amendments be withdrawn: Nos. 3396 and 3398.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________