[Congressional Record Volume 160, Number 59 (Thursday, April 10, 2014)]
[Senate]
[Pages S2362-S2371]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF MICHELLE T. FRIEDLAND TO BE UNITED STATES CIRCUIT JUDGE
FOR THE NINTH CIRCUIT--Continued
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I ask unanimous consent that the
Senator from North Carolina and I be allowed to engage in a colloquy
for 20 minutes, and following that the Senator from Iowa be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Student Athletes
Mr. ALEXANDER. Mr. President, the Senator from North Carolina and I
were both involved in intercollegiate athletics. He was a scholarship
athlete at Wake Forest University and I was a nonscholarship track
person at Vanderbilt University several years before that.
We are here today to make a few comments on the recent ruling by a
regional director of the National Labor Relations Board that defines
student athletes as employees of the university. It affects only
private universities for now--not the University of Tennessee. But it
would affect Wake Forest, where the Senator from North Carolina was an
outstanding football player, and it would affect Vanderbilt, where I
attended.
I guess our message to the NCAA and intercollegiate athletes is: We
hope they will understand the opinion of one regional director of the
National Labor Relations Board is not the opinion of the entire Federal
Government. That is the message I would like to deliver.
I would refer back--and then I will go to the Senator from North
Carolina--to 25 years ago, when I was the president of the University
of Tennessee, and I was asked to serve on the Knight Commission on
Intercollegiate Athletics. It was headed by the president of North
Carolina, Bill Friday, and the head of Notre Dame, Father Hesburgh--a
pretty distinguished group of individuals from around the country--to
take a look at intercollegiate athletics.
The major conclusion they came to was that presidents need to assert
more institutional control over athletics. But here is something that
this group of university presidents and others emphasized. They said:
We reject the argument that the only realistic solution to
the problem [of intercollegiate athletics]--
And there have always been some--
is to drop the student-athlete concept, put athletes on the
payroll, and reduce or even eliminate their responsibilities
as students.
Such a scheme has nothing to do with education, the purpose
for which colleges and universities exist. Scholarship
athletes are already paid in the most meaningful way
possible: with a free education. The idea of intercollegiate
athletics is that the teams represent their institutions as
true members of the student body, not as hired hands. Surely
American higher education has the ability to devise a better
solution to the problems of intercollegiate athletics than
making professionals out of the players, which is no solution
at all but rather an unacceptable surrender to despair.
This was the Knight Commission 25 years ago.
I would ask the Senator from North Carolina, does he not think that
while there may be some issues with intercollegiate athletics--and we
could talk about what some of those are--that unionization of
intercollegiate athletics is not the solution to the problem?
Mr. BURR. Let me say to my good friend, the Senator from Tennessee--
who not only was a walk-on track member at Vanderbilt, but was the
president of the University of Tennessee, the Governor of Tennessee,
the Secretary of Education, and now is a Senator--his credentials allow
him to say whatever he wants to on this issue with a degree of
knowledge.
It was Teddy Roosevelt who identified the challenge of college
football, and through his attempt to get Harvard and Yale and a couple
of other universities to address the risk, the NCAA was created.
The amazing thing to Senator Alexander and myself is that we have
this governing body today that by all practical observations has done a
great job of regulating college sports. It is the reason we have
fabulous playoffs. It is the reason we have integrity in the
scholarship system. But, more importantly, it is the reason we have
top-quality athletes who go into these schools, where less than 1
percent become pros. Ninety-nine percent of them are reliant on a great
education for a fabulous outcome in life. To do anything that changes
the balance of what they have been able to create is ludicrous and I
think what troubles me, and I think it troubles Senator Alexander.
These are not some misguided college football players. This is the
United Steelworkers. Let me say that again because I do not think
people understand it. This is the United Steelworkers who have put up
the money so that these players from Northwestern would go to the NLRB
and say: We want to unionize at Northwestern University. Well, on the
face of it, it creates a great inequity between public and private
schools, where we have a governing body that tries to make this process
as equitable as it can.
But let me make this point: If you want to drive the rest of the
schools out of major sports, then do this. Only 10 percent of our
Nation's athletic programs make money. That means 90 percent of them
lose in the athletic department. But for the quality of life of
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all students, not just athletes, they continue and their alumni
continue to subsidize it.
I agree with my good friend from Tennessee. This would be a huge
mistake, and it is time for those players at Northwestern to think
about more than those individuals who have fronted them the money to
bring this case.
Mr. ALEXANDER. I thank the Senator from North Carolina.
The question should be obvious: What does a student at Wake Forest or
Vanderbilt or--and we are using the private universities, again,
because those are the only ones affected by this decision for now--but
if you are at Vanderbilt University, according to the vice chancellor,
the total scholarship could be nearly $60,000. That is the value each
year of your athletic scholarship. Times four--so you are up to one-
quarter of a million dollars.
The College Board says--roughly estimates--that a college degree adds
$1 million to your earnings during a lifetime.
So the idea that student athletes do not get anything in return for
their playing a sport is financially wrong. And just speaking as one
individual who had the privilege to participate for 2 years as a
student athlete without getting anything--I had scholarships, but they
were not athletic scholarships--the discipline, the memories, the
competition, the chance to be in the Southeastern Conference
Tournament--that is very important to me. It was then, just as
athletics always is. It is a rare privilege to participate in
intercollegiate athletics.
The presidents have looked at the problems of intercollegiate
athletics. And there are some. But people forget--and I know the
Senator from North Carolina is aware of this. But let's say you are at
Vanderbilt and you have a $58,000 scholarship--tuition, room and board
but your total costs are over $60,000 and let's say you come from a
poor family that has no money and you are put in the embarrassing
position of not having walking-around money, money to go out and get a
hamburger, or whatever you want to do.
Forty percent of student athletes in America also have a Pell grant
similar to 40 percent of all students in America have a Pell grant, and
the Pell grant can be, on average, $3,600. So that is $300 a month that
could be added.
Now, perhaps there are other issues that ought to be addressed. But I
wonder if the Senator from North Carolina would speak more about one
thing he talked about. I imagine Florida State, the University of
Tennessee, Stanford, maybe Wake Forest--they will all be fine with a
more expensive athletic program. But what is going to happen to the
smaller schools? What is going to happen to the minor sports? What is
going to happen to the title IX women's sports if for some reason a
union forces universities to have a much more expensive athletic
program for a few sports?
Mr. BURR. Well, let me say to my good friend from Tennessee, I will
quote the words of Wake Forest President Nathan Hatch, a former provost
at Notre Dame, in an editorial he wrote in the Wall Street Journal just
this week.
He says:
To call student-athletes employees is an affront to those
players who are taking full advantage of the opportunity to
get an education. Do we really want to signal to society and
high-school students that making money is the reason to play
a sport in college, as opposed to getting an education that
will provide a lifetime benefit?
President Patrick Harker, president of the University of Delaware, in
the same article said:
Turning student athletes into salaried employees would
endanger the existence of varsity sports on many college
campuses. Only about 10 percent of Division I college sports
programs turn a profit, and most of them, like our $28
million athletic program at the University of Delaware, lose
money. Changing scholarship dollars into salary would almost
certainly increase the amount schools have to spend on
sports, since earnings are taxed and scholarships are not. In
order just to match the value of a scholarship, the
university would have to spend more.
At Wake Forest, let me say, today a scholarship is worth $45,600 in
tuition in fees, $15,152 in room and board, $1,100 in books. I will say
to my good friend from Tennessee, I am not sure if there is still $15
of laundry money a month that exists under a scholarship. That is what
it was when I was there. I daresay I hope it is more than that today
because I do not think you can do laundry for $15 a month.
Mr. ALEXANDER. I wonder if I can ask the Senator to reflect a little
bit on some of the practical consequences of a student athlete suddenly
finding himself thought of as an employee of the university. I wonder,
for example, would the employee of the university, the quarterback or
whatever position he plays, have to pay taxes on his income? I would
think so.
I was thinking about the recent changes in Federal labor law that
allow for micro-unions. Almost any little group can petition the
National Labor Relations Board, under the Obama administration's views,
to become a union. I wonder if quarterbacks would become a micro-union.
They would say: We are more important. Look at the NFL. They get paid a
lot more. We want a bigger scholarship than others.
I wondered about five-star recruits. Let's say there is a terrific
defensive back--as I am sure Senator Burr was when he was in high
school. He had five stars from all the recruiting services. Would the
private schools who are unionized go out and compete to see who could
pay the highest compensation to the five-star recruits, a lot less to
the walk-on, maybe less for a three-star. What are the practical
consequences of a student athlete suddenly finding himself defined as
an employee of the university under the National Labor Relations Act?
Mr. BURR. Let me say to my good friend, as one who remembers August
practices in the South--hottest time of the year, three practices a
day--the first thing I would bargain out for all players is that I
would have to get my ankles taped at 4:30 in the morning, that I would
have to go all day and most of the night, and that I could not take
that tape off until 8:30 after three practices.
I would negotiate away the smell of dead grass in August, a memory
every college football player, as a matter of fact every football
player, has of that dead grass in summer practice in hot weather.
I plead with those who play today: Do you truly believe you can form
a team if in fact you have individuals who negotiate individual things
for themselves? If quarterbacks negotiate they cannot be hit, how good
is the club? But where is the team? If individuals find that it is
advantageous to them because they are stars and they can negotiate it,
where have we lost the sense of team sports?
The Senator from Tennessee mentioned this to begin with: College
sports is a lot about the experience. It builds character. It builds
integrity. It builds drive. It builds resilience. It is not the only
thing in life that does it, but to me, for many individuals, for many
young men and women, this is the most effective way for them to become
leaders. I might say it is very much the style of our training in the
military. As we raise those young officers, they go through a very
regimented training.
Imagine what it would be like if we allowed the military to
collectively bargain. Let me tell you, none of us would feel safe at
night because we don't know exactly what they have gone through. Today
we feel safe because we know they have all gone through the same thing.
Mr. ALEXANDER. Mr. President, I think our time is coming toward a
close, but we have about 5 minutes left. Then we will be looking
forward to the comments of the Senator from Iowa. We thank him for his
courtesy in allowing us to go ahead.
I guess the message--I particularly enjoyed hearing the Senator from
North Carolina. The message today is directed at two groups. One is to
the NCAA, which is to say, do not think that the attitude of one
Regional Director of the National Labor Relations Board reflects the
view of the U.S. Government. It does not. The other is to the student
athletes. Think about the value of the opportunity you have.
Here are two former student athletes of varying talents who benefited
enormously from that. There are many others who would say the same. The
university does not owe us anything. We owe the university--at least
that is the way I feel about it--for the privilege of competing, for
the privilege of attending. If I had a scholarship, that would have
been even better--just the privilege of participating.
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To the NCAA, the members of the NCAA have talked about issues such as
should we provide more expense money for athletes. I mentioned earlier
that 40 percent of them have Pell grants which can go up to $5,600 a
year in addition to their $55,000 or $60,000 of football scholarships.
So think about that. That was considered by the NCAA and voted down
because the small schools said: It will hurt us. Women's programs said:
We will have to drop women's programs.
So this is more complicated than it would seem at first. What about
health care? Of course, a student athlete can be covered by his
parents' health care insurance. Under the Affordable Care Act, I am
sure many on the other side would be quick to say, they would always be
able to be insured for any sort of preexisting condition, but these are
issues that can be properly looked at by the NCAA.
Unionization, in my opinion, would destroy intercollegiate athletics
as we know it. I think we should look back to the opinion of the Knight
Commission, headed by Bill Friday of North Carolina and Ted Hesburgh of
Notre Dame, and reaffirm that the student athlete is not a
professional, not a hired hand. He or she is a student. One percent of
the athletes in this country--there may be problems to solve, but the
universities and the NCAA can address those problems. Unionization is
not the way to do it.
Mr. BURR. I just wanted to address one last thing; that is, the claim
that this case was all about health care. The Senator from Tennessee
has pointed out as well the options that we have today. But let me
speak from a firsthand experience: a college athlete, four operations--
two knees, an elbow, a finger. Probably the only record I hold at Wake
Forest is the total number of inches of scars on my body. Because of
modern medicine, that record will not be broken because they do not do
surgery that way anymore.
But I think it is best summed up by our current Secretary of
Education, Arne Duncan, when he said this:
When sports are done right, when priorities are in order,
there is no better place to teach invaluable life lessons
than on a playing field or court. . . . Discipline,
selflessness, resilience, passion, courage, those are all on
display in the NCAA.
Why would we do anything to risk that? Not only do I believe this is
risky, I think just a consideration of it is enough to make us--or
should make us reject this quickly, not embrace it.
I thank my colleague from Tennessee.
Mr. ALEXANDER. I thank my colleague from North Carolina.
I thank the Senator from Iowa for his courtesy in allowing us to go
ahead.
Some 50 years ago, I had the opportunity to compete in track and
field for Vanderbilt University. Unlike my colleague from North
Carolina, who as a fine defensive back at Wake Forest University, there
was no athletic scholarship available for me. But I was fortunate
enough to be a member of a record setting team.
Twenty-five years ago, while I was president of the University of
Tennessee, I was asked to serve on the Knight Commission on
Intercollegiate Athletics. The Knight Commission was created in October
1989 in response to a series of scandals in college sports. After 18
months of careful study, our 22-member commission issued a report
called ``Keeping the Faith with the Student-Athlete: A New Model for
Intercollegiate Athletics.''
Our central recommendation was that college presidents needed to
exercise stronger control of their athletics programs to ensure their
academic and financial integrity. And our guiding principle in making
that recommendation was that athletes are students first, not
professionals. We wrote:
We reject the argument that the only realistic solution to
the problem is to drop the student-athlete concept, put
athletes on the payroll, and reduce or even eliminate their
responsibilities as students.
Such a scheme has nothing to do with education, the purpose
for which colleges and universities exist. Scholarship
athletes are already paid in the most meaningful way
possible: with a free education. The idea of intercollegiate
athletics is that the teams represent their institutions as
true members of the student body, not as hired hands. Surely
American higher education has the ability to devise a better
solution to the problems of intercollegiate athletics than
making professionals out of the players, which is no solution
at all but rather an unacceptable surrender to despair.
The Knight Commission's perspective on student athletes could not be
more different to the perspective in the recent decision, issued by a
regional director of the National Labor Relations Board in Chicago, to
treat athletes as employees and permit them to form a union.
Student athletes are found throughout all levels and at all types of
colleges--small through large, but those that receive athletic
scholarships are only at division I and II schools. Division III
schools are not allowed to award athletic scholarships.
For the purposes of the NLRB decision, we are talking about an even
smaller subset of athletes--scholarship athletes at private
institutions like Notre Dame, Vanderbilt, and Stanford. For example, as
a non-scholarship athlete at Vanderbilt, I would not have been able to
unionize. Senator Burr, on the other hand was given a scholarship to
play defensive back at Wake Forest. He would be allowed to unionize.
In 2011, there were roughly 25 million undergraduate students; 9
million Pell recipients, which is approximately 36 percent of
undergraduate students. In addition, there were 177,000 scholarship
athletes enrolled in bachelor programs at public and private
institutions. This is approximately 1.7 percent of all students in
bachelor's programs. Of those, 71,000 received Pell Grants,
approximately 40 percent of scholarship athletes. The number of
scholarship athletes at private institutions enrolled in a bachelor's
program was 104,000, approximately 4.2 percent of private students in
bachelor's programs. Of those, 43,700 received Pell Grants,
approximately 42 percent of private scholarship athletes.
The total number of division I and II schools is 662 of which 283 are
private institutions. In division I the total is 350 with 119 of them
being private, while the division II total is 312 with 164 private.
Athletic scholarships are limited to only tuition and fees, room and
board, and required course-related books. At Vanderbilt the total
scholarship could be as much as $58,520 which is a combination of
$42,768 for tuition, $14,382 for room and board, and $1,370 for books.
At Stanford the total scholarship could be as much as $59,240 which is
a combination of $44,184 for tuition, $13,631 for room and board, and
$1,425 for books.
Contrast that with the University of Tennessee where the scholarship
total could be up to $21,900 consisting of $11,194 for in-state
tuition, $9,170 for room and board, and $1,536 for books.
Scholarship athletes may also combine other sources of financial aid,
namely Federal or State need-based aid or earned entitlements, in order
to cover the full cost of attendance. These include, Pell Grants,
Supplemental Education Opportunity Grants, work-study, State grants
based on need using Federal need calculations such as Tennessee's HOPE
Scholarship and veterans programs such GI Bill or post
9/11 GI Bill.
Athletic scholarships are awarded in most cases by the athletic
department which encourages an athlete to complete the federal
application. If an athlete is determined to have a need, then the
financial aid office awards the need-based aid, Federal, State, or
both. A student athlete is restricted to the institutional cost of
attendance when combining other aid with their scholarship, unless they
are using their Pell Grant or a veterans benefit. Thus a student
athlete with need could receive a full scholarship covering all costs
and receive additional funds.
Only 1 percent of student athletes will ever play professional
sports. For the remainder, their college degree is the primary benefit
of participating in college sports. According to the College Board, the
value of a college degree is $1 million over an individual's lifetime.
As a former student athlete, who wasn't on scholarship, I can speak
from experience that the value of college athletics goes beyond the
money. It can enrich every aspect of our education, teaching lessons
and developing habits that will pay dividends no matter what a student
pursues in life.
Unfortunately, the problems the Northwestern football players are
concerned with are not unique to Northwestern and they are not new.
These problems include: the NCAA does not
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currently allow a full-ride athletic scholarship to cover the actual
full cost of attendance; Other expenses include: transportation costs;
health fees; student activity and recreation fees and personal expenses
allowable under Federal financial aid rules.
For example, a full-ride scholarship at Vanderbilt University is
worth $58,520 but the full cost of attendance is calculated by the
school to be $62,320. The difference must be made up by the student.
For some student athletes, the lingering effects and potential
disabilities will be felt for many years after their playing days are
over. Some students are asking for long term medical coverage to help
them cover costs of treating these injuries. Schools could provide for
some form of additional medical coverage.
While playing sports has certain inherent risks, we do know more now
than ever before about how injuries can be avoided. Better protections
from injury--football concerns with concussions. Schools can take, and
some are taking, steps to improve the safety of their student athletes.
Some students are asking for help to finish their education even when
athletic eligibility has run out.
There is money available to address these concerns and take care of
our student athletes without unions.
The NCAA and the member universities do need to reform their rules
and guidance; and they will.
Earlier this week we spoke to David Williams, Vanderbilt University's
athletic director, who had this to say:
The NCAA and its member universities have the authority and
the responsibility to correct the flaws that exist in the
system today, many of which are mentioned by the student
athletes at Northwestern University. The question is do we
have the will to do so. I believe we do and that we will.
Mark Emmert the President of the NCAA, quoted in a recent Meet the
Press interview said:
We have twice now had the board of the N.C.A.A. pass an
allowance to allow schools to provide a couple of thousand
dollars in what we call ``miscellaneous expense'' allowances.
. . . The board's in favor of it. The membership, the more
than a thousand colleges and universities that are out there,
the 350 of them that are in division one had voted that down.
We're in the middle right now of reconsidering all that. I
have every reason that that's going to be in place sometime
this coming year.
What would actually happen if college sports teams were unionized?
Well, David Williams, Vanderbilt's athletic director, said:
The decision by the NLRB regional board has the power to
change the structure, dynamics and maybe the effectiveness of
college athletics. It may ultimately end college athletics as
we know it today.
I agree with this statement. And think those who support turning
college athletes into employees and unionize them should consider the
potential consequences. One potential consequence relates to taxes.
This recent decision, in essence, may require the entire scholarship to
be treated as compensation thus making the whole amount taxable.
Another consequence of potential collegiate unionization relates to
labor. One of the most commonly thought of traits when a union
represents a workforce is the right to strike. Section 13 of the
National Labor Relations Act, NLRA, expressly provides the right of
employees to strike, with some exceptions. If a unionized college
baseball team doesn't like the coaches' decision to switch practice
times, they could decide to walk off the field right before the first
pitch is thrown, and call a strike.
The NLRA requires the union and employer to bargain over wages,
hours, and other conditions of employment. If a football team joins a
union, will the union negotiate different compensation amounts
depending on the player's position or contribution to the team? For
example, a five star quarterback in high school could decide to attend
Notre Dame, because the players' union promises to negotiate a larger
scholarship package for him, but the one star, offensive lineman may
only get the bare minimum. This could lead to a team and its union
making value judgments based on the on-field contributions of a player.
What about when a coach decides to change the offensive scheme from a
pro-style offense to the wish-bone. A union wide receiver might have a
grievance because this could effect the ``condition of employment,'' in
that his role on the team could be diminished. Under the NLRA, a
decision like that would have to be bargained for. A coach could not
unilaterally change the playbook without approval of the union.
But let's say that a wide receiver decides to go directly to the
coach to discuss his grievance about switching offensive schemes. Under
the act, that conversation will not be a one-on-one between the coach
and the player. Instead, a union representative has the right to be
present at that meeting. And instead of resolving the issue internally,
the Federal government through the NLRB, or possibly the Federal courts
could have the final say.
The current NLRB has struck down several employee conduct policies
and handbooks, because they violate an employee's section 7 right to
``concerted activity'' under the NLRA. Will the NLRB now turn its
attention to and interfere with the player conduct policies that
schools require of their players?
The NLRB issued a 2011 decision in Specialty Healthcare, that
permitted unions to organize, multiple, small groups of employees
within a single workplace, known as ``micro-unions.'' It is conceivable
that every different position on the football team could decide to have
their own bargaining unit. The quarterbacks in one unit, the lineman in
another unit, and the linebackers in another, etc. The university would
then have to separately bargain with multiple different unions, all
with different demands.
Universities require its athletes to maintain a 2.0 grade point
average, GPA, to keep an athletic scholarship. Would the NLRA consider
a minimum grade point average as a condition of employment under the
law that must be bargained for? Schools and players' unions could
bargain a lower GPA.
What if a coach benches the star point guard, who is a union member,
on the basketball team, and replaced him with a non-scholarship, walk-
on point guard? Could the team be accused of retaliating against a
union player in violation of the NLRA? Under the NLRA it is unlawful to
discharge, discipline or otherwise discriminate against an employee for
engaging in protected concerted activities. If that star player could
show that the benching came after he had been discussing a team related
issue with his fellow teammates it would be considered retaliation.
The bottom line, is that importing the sometimes head-scratching
rulings of the NLRB into a competitive, team atmosphere is recipe for
disaster.
Do they now hire athletes and not worry if they are students? Mark
Emmert, NCAA President, said:
To unionize them, you have to say, These are employees. If
you're going to do that, it completely changes the
relationship. I don't know why you'd want them to be
students. If they're employees and they're playing basketball
for you, don't let calculus get in the way.
Yesterday, the Senate voted against cloture on the Paycheck Fairness
Act. This is a bill that would amend the Equal Pay Act to make it
easier to sue for pay discrimination based on gender by limiting an
important employer defense.
Under the bill, the employer would have to prove any difference in
pay would be job-related and consistent with a business necessity; If
these student athletes are now considered ``employees'' under the eyes
of a regional director in Chicago, they would theoretically be entitled
to protection under statutes like the Equal Pay Act; And if the
Paycheck Fairness Act were to become law, it is conceivable
universities could be liable for any differences in compensation that
they provide the football team, versus the women's soccer team;
Then there is the effect on smaller schools. Big schools with big
budgets may have the ability to negotiate with a union for better
benefits for their student athletes. If a football union at Notre Dame
negotiates for higher compensation that may set a standard the school
must match for other athletes as well. I imagine that there is enough
money coming into the Notre Dame or Stanford athletic departments to
allow them to adjust to the realities of unionized college athletics.
But what about smaller schools? They will have to make cuts
somewhere. If they preserve their football
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program, it will likely be at the cost of other sports.
Another consideration that must be taken into account are public
universities versus private universities. Because the NLRB regional
director's decision only applies to private universities, it creates a
different set of rules for private universities than for public
universities.
The private schools with athlete unions may ultimately be forced to
negotiate salaries or other benefits that violate NCAA rules; to
continue competing, they would have to set up their own conference or
association. The departure of schools from the NCAA to this new, union
friendly association, would fracture the foundations of collegiate
sports.
And what about possible title IX implications? As title IX was
enforced related to college athletics, institutions made difficult
choices to eliminate many athletic programs. Title IX is focused on
improving equal access to education. If athletes are employees, then it
is unclear how the requirements and protections of title IX will apply
to them.
Due to the current limited nature of the ruling, if football players'
compensation are considered salaries and not scholarships, then would
one of the possible effects be a reduction in the number of women's
scholarships that title IX requires the university to offer? Or would
title IX require that any new benefits received by a football team
under their collective bargaining be shared equitably with the women's
sports at the university?
With limited resources and title IX requiring both proportional
opportunity for athletes and pay, the recent decision may result in
further reductions of athletic programs and opportunities on college
campuses.
The Knight Commission's executive director, Amy Privette Perko,
recently wrote in the New York Times that:
The commission supports many of the benefits being sought
for college athletes by groups like the College Athletes
Players Association, but unions are not needed to guarantee
those benefits. Colleges can enact proposals long recommended
by the commission for colleges to restore the educational
role of athletics and improve athletes' experiences.
I continue to believe that athletes are students first, not
professionals. Some of the concerns raised by these college athletes
are legitimate but unions are not the solution. They can and should be
addressed by the schools and the NCAA.
The PRESIDING OFFICER. The Senator from Iowa.
Whistleblower Protections
Mr. GRASSLEY. Mr. President, 25 years ago today the Whistleblower
Protection Act of 1989 was signed into law. To mark that anniversary, I
come to the floor to discuss some of the history that led to that
legislation, the lessons learned over the past 25 years, and the work
that still needs to be done to protect whistleblowers.
I emphasize that last part because there still needs to be a lot of
work done to protect whistleblowers. The Whistleblower Protection Act
was the result of years of effort to protect Federal employees from
retaliation. Eleven years before it became law in 1989, Congress tried
to protect whistleblowers as part of the Civil Service Reform Act of
1978.
I was then in the House of Representatives. There I met a person
named Ernie Fitzgerald, who had blown the whistle on the Lockheed C-5
aircraft program going $2.3 billion over budget. Ernie was fired by the
Air Force for doing that, and as he used to say: He was fired for the
act of ``committing truth.''
When the Nixon tapes became public after Watergate, they revealed
President Nixon personally telling his Chief of Staff to get rid of
that SOB. That is how a famous whistleblower who pointed out the waste
of $2.3 billion was treated.
The Civil Service Commission did not reinstate Ernie until 12 years
later. In the meantime, he was instrumental in helping get the Civil
Service Reform Act of 1978 passed. Yet it soon became very clear that
law did not do enough to protect whistleblowers. In the early 1980s,
the percentage of employees who did not report government wrongdoing
due to fear of retaliation nearly doubled.
Some whistleblowers still had the courage to come forward. In the
spring of 1983, I became aware of a document in the Defense Department
known as the Spinney report. The report exposed the unrealistic
assumptions being used by the Pentagon in its defense budgeting. Those
unrealistic assumptions were the basis for add-ons later on so defense
contractors could bid up the cost. It was written by Chuck Spinney, a
civilian analyst in the Defense Department's Program Evaluation Office.
I asked to meet with Chuck Spinney but was stonewalled by the
Pentagon. When I threatened a subpoena, we finally got them to agree to
a Friday afternoon hearing in March 1983. The Pentagon hoped the
hearing would get buried in the end-of-the-week news cycle. Instead, on
Monday morning the newsstands featured a painting of Chuck Spinney on
the front cover of Time magazine.
It labeled him as ``a Pentagon Maverick.'' I called him what he ought
to be called, the ``conscience of the Pentagon.'' The country owes a
debt of gratitude to people such as Ernie Fitzgerald and Chuck Spinney.
It takes real guts to put your career on the line, to expose waste and
fraud, and to put the taxpayers ahead of Washington bureaucrats.
In the mid-1980s, we dusted off an old Civil War-era measure known as
the False Claims Act, as a way to encourage whistleblowers to come
forward and report fraud. We amended that Civil War law in 1986 to
create the modern False Claims Act, which has resulted in over $40
billion in taxpayers' money being recovered for the Federal Treasury.
We made sure when we passed it that it contained very strong
whistleblower protections. Those provisions helped to build up support
for whistleblowing.
People such as Chuck Spinney and Ernie Fitzgerald helped capture the
public imagination and showed what whistleblowers could accomplish.
However, that didn't mean the executive branch stopped trying to
silence whistleblowers. For example, in the spring of 1987 the
Department of Defense asked Ernie to sign a nondisclosure form. It
would have prohibited him from giving out classifiable--as opposed to
classified--classifiable information without prior written
authorization. That, of course, would have prevented those of us in
Congress from getting that information so we couldn't do our oversight
work.
Further, the term ``classifiable'' didn't only cover currently
classified information, it also covered any information that could
later be classified.
The governmentwide nondisclosure form arguably violated the Lloyd-
LaFollette Act of 1912. That law states that ``the right of employees .
. . to furnish information to . . . Congress . . . may not be
interfered with or denied.''
Just to make sure, I added the so-called anti-gag appropriations
rider that passed Congress in December 1987. That rider, the anti-gag
rider, said that no money could be used to enforce any nondisclosure
agreements that interferes with the right of individuals to provide
information to Congress. It remained in every appropriations bill until
2013. I then worked to get that language into statute in 2012 through
the passage of the Whistleblower Protection Enhancement Act.
By the time of the first anti-gag rider in 1987, there was widespread
recognition that all Federal employees ought to be protected if they
disclosed waste and fraud to the Congress or for a lot of other reasons
as well.
Meanwhile, I had also worked with Senator Levin of Michigan to
coauthor what we called the Whistleblower Protection Act. It was
introduced in February 1987. There were hearings on our bill in the
summer of 1987 and the spring of 1988. It proceeded to pass the Senate
by voice vote in August. Then the House unanimously did that in
October. After reconciling the differences, we sent the bill to the
White House. However, President Reagan failed to sign it. That meant we
had to start all over again in the next Congress.
We didn't let President Reagan's inaction--because that was a pocket
veto--stand in the way. Senator Levin and I moved forward again. When
we reintroduced the bill in January 1989, I came to the floor to make
the following statement:
We're back with this legislation in the 101st Congress, and
this time, we're going to make it stick.
[[Page S2367]]
Congress passed this bill last fall after extensive
discussions with members of the Reagan administration.
But in spite of the compromise we worked out, this bill
fell victim to President Reagan's pocket veto.
Whistleblowers are a very important part of government
operations. By exposing waste, fraud, and abuse, they work to
keep government honest and efficient. And for their loyalty,
they are often penalized--they get fired, demoted, and
harassed. . . . Under the current system, the vast majority
of employees choose not to disclose the wrongdoing they see.
They are afraid of reprisals and the result is a gross waste
of taxpayers' dollars.
Government employers should not be allowed to cover up
their misdeeds by creating such a hostile environment.
That is the end of the quote from the statement I made on the
introduction of that bill in January 1989.
Once again, the bill passed the Senate and the House without
opposition. Working with George H.W. Bush, this time we got the
President to sign it. On April 10, 1989, the Whistleblower Protection
Act became law.
We left part of the work undone 25 years ago. The Civil Service
Reform Act of 1978 had exceptions for the FBI, the CIA, the NSA, and
other parts of the intelligence community. The Whistleblower Protection
Act left employees of those agencies unprotected, and so have the laws
that followed it. I am very pleased that the preconferenced
intelligence authorization bill released today will remedy that for the
intelligence community.
Back in 2012 I championed the addition of intelligence whistleblower
protections to the Whistleblower Protection Enhancement Act. The
provisions I authored prohibited various forms of retaliation,
including changing an employee's access to classified information.
Working closely with the Senate Select Committee on Intelligence, we
got that language into the bill that passed the Senate by unanimous
consent May 8, 2012. However, it was not included in the bill the House
passed on September 28, 2012.
Prior to the differences being reconciled on October 10, 2012,
President Obama issued Presidential Policy Directive 19. It provided
certain limited protections for whistleblowers with access to
classified information. Yet that Executive order by President Obama was
weaker than the provisions I had authored in the Whistleblower
Protection Enhancement Act. Unfortunately, President Obama's actions
undercut support for those provisions by suggesting that statutory
protection was now necessary. The final law that passed in November
left intelligence whistleblowers at the mercy of the Presidential
directive.
Now, much of the language I had championed is in the Intelligence
authorization bill currently under consideration. It is certainly a
step up from Presidential Policy Directive 19. Making any protections
statutory is very significant. The bill also has better substantive
protections than the Presidential directive.
It does still have some gray areas, I am sorry to say. It leaves some
of the policy and procedure development to the discretion of the
executive branch, and that is a mistake we know exists because we had a
similar thing happen with the FBI because in 1989 the protections of
the Whistleblower Protection Act didn't apply to the FBI. That turned
out to be a big mistake.
Yet that law did require the Attorney General to implement
regulations for FBI whistleblowers consistent with those in the
Whistleblower Protection Act. However, it soon became clear that was a
little like putting the fox in charge of the henhouse. The Justice
Department and the FBI simply ignored that part of the law for nearly
10 years. Not until 1997 did the Attorney General finally implement
regulations for whistleblowers at the FBI.
The Justice Department was pushed into finally issuing those
regulations by an FBI employee by the name of Dr. Fred Whitehurst. Dr.
Whitehurst was considered by the FBI to be its leading forensic
explosive expert in the 1990s.
What I am about to show you is that by being a good, patriotic
American and blowing the whistle when something is wrong, you can ruin
yourself professionally.
Shortly after the Whistleblower Protection Act was passed in 1989,
Dr. Whitehurst disclosed major problems with the FBI crime lab. From
1990 to 1995 he wrote close to 250 letters to the Justice Department
inspector general about these problems. In other words, he tried to be
loyal to the agency he was in and work within that agency to expose
wrongdoing but didn't get very far.
In January 1996 he formally requested that the President implement
regulations as required by the Whistleblower Protection Act. Only after
Fred was suspended in 1997 did the White House finally issue such a
memo to the Attorney General. It instructed the Attorney General to
create a process for FBI whistleblowers as directed by the
Whistleblower Protection Act. Fred Whitehurst's case dragged on for
another year until the FBI finally agreed to settle with him in
February 1998. He got more than a $1 million settlement out of that
just because he was trying to do the right thing. But he got his badge
and his gun taken away from him, and he was, in a sense, ridiculed for
doing what a patriotic American ought to do.
Fred Whitehurst is not alone in the FBI as far as people having
problems. Over the years, others--such as Mike German, Bassem Youssef,
Jane Turner, and Robert Kobus--have blown the whistle from within the
FBI. Even after the inspector general issued findings in their favor,
several had to navigate a never-ending Kafkaesque internal appeals
process. It seemed designed to grind down these patriotic Americans
into submission through years of inaction.
Now history has started to repeat itself. As Congress was passing the
Whistleblower Protection Enhancement Act in 2012, President Obama
issued Presidential Policy Directive 19. He tasked Attorney General
Holder with reevaluating the same FBI whistleblower procedures that
Fred Whitehurst helped get in place in 1997. The Attorney General was
given 6 months to report back.
When the Attorney General didn't report back and didn't issue that
report at the 6-month mark, I asked the Government Accountability
Office to do its own independent evaluation of the FBI whistleblower
protections.
Now 18 months after the President's directive, Attorney General
Holder still hasn't released his report. This is a person appointed by
the President of the United States, directed by the President of the
United States to do something in 6 months, presumably loyal to the
President of the United States, and he isn't doing what the Chief
Executive of our great country told him to do.
Potential whistleblowers should not have to wait a decade, as they
did with the first set of regulations. It appears that the Justice
Department is simply sitting on its hands once again.
The example of the FBI should be instructive. Unlike the
Whistleblower Protection Act, the Intelligence authorization bill is
much more detailed about the protections Congress intends. It puts a
time limit on how long the intelligence community has to create their
procedures, giving them 6 months. However, remember that is exactly the
same amount of time President Obama gave Attorney General Holder to
come up with regulations, and it still hasn't happened 18 months later.
Congress needs to be vigilant about getting both the intelligence
community and the Attorney General to act.
In the meantime, the FBI fiercely resists any efforts at
congressional oversight, especially on whistleblower matters. For
example, 4 months ago I sent a letter to the FBI requesting its
training materials on the insider threat program. When we just want
copies of training materials, would that be difficult for a bureaucracy
to present to a Member of Congress?
That program happened to be announced by the Obama administration in
October of 2011. It was intended to train Federal employees to watch
out for insider threats among their colleagues. Public news reports
indicated that this program might not do enough to distinguish between
true insider threats and legitimate whistleblowers. I relayed these
concerns in my letter. I also asked for copies of the training
materials. I said I wanted to examine whether they adequately
distinguished between insider threats and whistleblowers so it didn't
become a damper on whistleblowing.
In response, an FBI legislative affairs official told my staff that a
briefing might be the best way to answer my questions. It was scheduled
for last
[[Page S2368]]
week. Staff of both Chairman Leahy and myself attended. The FBI brought
the head of their insider threat program. Yet the FBI didn't bring the
insider threat training materials as we had requested. However, the
head of the insider threat program told the staff of both Senator Leahy
and myself there was no need to worry about whistleblower
communications.
They are telling me that at a time when we have decades of history of
whistleblowers being treated like skunks at a picnic? This gentleman
said whistleblowers had to register in order to be protected and the
insider threat program would know to avoid these people.
I have never heard of whistleblowers ever being required to
``register,'' in order to be protected. The idea of such a requirement
should be pretty alarming to all Americans. We are talking about
patriotic Americans wanting to make sure the government does what the
law says it should do and spend money the way Congress intended it be
spent. They have to register to be protected just because they are a
patriotic American? The reason they can't do that is because sometimes
confidentiality is the best protection a whistleblower has.
Unfortunately, neither my staff nor Chairman Leahy's staff was able
to learn more because after only 10 minutes--only 10 minutes--in the
office and into the briefing, the FBI got up and abruptly walked out.
It might be one thing to walk out on Republican staff, but they
walked out on the staff of a Democratic chairman of one of the most
powerful committees in the U.S. Senate as well--Chairman Leahy's staff.
FBI officials simply refused to discuss any whistleblower
implications in its insider threat program and left the room. These are
clearly not the actions of an agency that is genuinely open to
whistleblowers or whistleblower protection.
Like the FBI, the intelligence community has to confront the same
issue of distinguishing a true insider threat from legitimate
whistleblowers. This issue will be impacted by title V of the current
Intelligence authorization bill, which includes language about
continuous monitoring of security clearance holders.
Director of National Intelligence James Clapper seems to have talked
about such procedures when he appeared before the Senate Armed Services
Committee on February 11 of this year. In his testimony he said this:
We are going to proliferate deployment of auditing and
monitoring capabilities to enhance our insider threat
detection. We're going to need to change our security
clearance process to a system of continuous evaluation. . . .
What we need is . . . a system of continuous evaluation,
where we have a way of--
Now, get this.
--monitoring their behavior, both their electronic behaviors
on the job as well as off the job, to see if there is a
potential clearance issue.
Director Clapper's testimony gives me major pause, as I hope it does
my colleagues. It sounds as though this type of monitoring would likely
capture the activity of whistleblowers communicating with Congress.
To be clear, I believe the Federal Government is within its right in
monitoring employee activity on worker computers. That applies all the
more in the intelligence community. However, as I testified before the
House Oversight and Government Reform Committee recently, there are
areas where the executive branch should be very cautious.
The House oversight committee held a hearing on electronic monitoring
that the U.S. Food and Drug Administration had done of certain
whistleblowers in that agency. This monitoring was not limited to work-
related activity. The Food and Drug Administration allows its employees
to check personal email accounts at work. As a result, the FDA's
whistleblower monitoring captured personal email account passwords. It
also captured attorney-client communications and confidential
communications to Congress and the Office of Special Counsel.
Some of these communications are legally protected. If an agency
captures such communications as a result of monitoring, it needs to
think about how to handle them very differently; otherwise, it would be
the ideal tool to identify and retaliate against whistleblowers.
Without precautions, that kind of monitoring could effectively shut
down legitimate whistleblower communications.
It wouldn't surprise me, considering the culture of some of these
agencies, that is exactly what they want to do, because there is a
great deal of peer pressure to go along to get along within these
agencies. Whistleblowers, as I said, are kind of like a skunk at a
picnic.
There could be safeguards, however. For example, whistleblower
communications could be segregated from other communications. Access
could be limited to only certain personnel rather than all of the upper
management. In any case, whistleblowing disclosures to Congress or the
special counsel can't just be routed back to the official accused of
wrongdoing.
As the 1990 Executive order made clear, whistleblowing is a Federal
employee's duty. It should be considered part of their official
responsibilities and something they can do on work time. However, that
doesn't mean they aren't allowed to make their protected disclosures
confidentially to protect against the usual retaliation. A Federal
employee has every right to make protected disclosures anonymously,
whether at work or off the job.
Every Member of this body should realize that without some safeguards
there is a chance their communications with whistleblowers may be
viewed by the executive branch.
These same considerations apply to the intelligence community. The
potential problems are heightened if electronic monitoring extends off
the job, such as Director Clapper mentioned in the quote I gave. We
have to balance detailing insider threats with letting whistleblowers
know their legitimate whistleblower communications are protected.
With continuous monitoring in place, any whistleblower would
understand their communications with the inspector general or Congress
would likely be seen by their agency and punishment could follow. They
might perhaps even be seen by those they believe are responsible for
waste, fraud, or abuse, and punishment to follow. That leaves the
whistleblower open to retaliation.
Even with the protections of this bill, we should all understand it
is difficult to prevent retaliation because it is so indigenous in the
culture of most government agencies. It requires a lengthy process for
an individual to try to prove the retaliation and get any remedy. It is
far better, where possible, to take precautions that prevent the
likelihood of retaliation even occurring; otherwise, it will make it
virtually impossible for there even to be such a thing as an
intelligence community whistleblower. Fraud and waste would then go
unreported. No one would dare take the risk.
To return to the theme I started with, whistleblowers need protection
from retaliation today just as much as they did 25 years ago when the
Whistleblower Protection Act was passed on April 10 of that year. I
have always said whistleblowers are too often treated like a skunk at a
picnic. You have now heard it for the third time. You can't say it too
many times. I have seen too many of them retaliated against.
However, 25 years after the Whistleblower Protection Act, the data on
whistleblowing is in, and the debate on whether to protect
whistleblowers is over. There is widespread public recognition that
whistleblowers perform a very valuable public service.
Earlier this year PricewaterhouseCoopers found that 31 percent of
serious fraud globally was detected by whistleblowing systems or other
tipoffs. According to a 2012 report from another organization, that
number is even higher when looking just in the United States, with 51
percent of the fraud tips coming from a company's own employees.
In 2013, of U.S. workers who had observed misconduct and blown the
whistle, 40 percent said the existence of whistleblower protection had
made them more likely to report misconduct.
Whistleblowers are particularly vital in government, where
bureaucrats only seem to work overtime when it comes to resisting
transparency and accountability.
A year and a half after the Whistleblower Protection Act, President
Bush
[[Page S2369]]
issued Executive Order 1990 that said all Federal employees ``shall
disclose waste, fraud, abuse and corruption to appropriate
authorities.'' That should have changed the entire culture of these
agencies that are antiwhistleblower, but it hasn't. But that is what
the directive says.
Federal employees are still under obligations this very day. They are
fulfilling a civic duty when they blow the whistle.
I encouraged President Reagan and every President after him that we
should have a Rose Garden ceremony honoring whistleblowers. If you do
that, it sends a signal from the highest level of the U.S. Government
to the lowest level of the U.S. Government that whistleblowing is
patriotic. Unfortunately, there isn't a single President who has taken
me up on my suggestion.
Further, while the Obama administration promised to be the most
transparent in history, it has, instead, cracked down on whistleblowers
as never before.
Last week, the Supreme Court denied a petition to hear an appeal from
a case named Kaplan v. Conyers. The Obama administration's position in
that case, if allowed to stand, means untold numbers of Federal
employees may lose some of the very same appeal rights we tried to
strengthen in the Whistleblower Protection Act. There could be half or
more of the Federal employees impacted. Such a situation would undo 130
years of protection for civil servants dating back to the Pendleton
Civil Service Reform Act of 1883.
We all remember that President Obama promised to ensure that
whistleblowers have full access to the courts and due process. However,
his administration has pursued the exact opposite goal here. That ought
to be unacceptable to all of us.
I think it is important to send a loud and clear signal that waste,
fraud, and abuse won't be tolerated in government, and that is why I am
pleased to announce I will officially be forming a whistleblower
protection caucus at the beginning of the 114th Congress. Until then, I
will be talking to my colleagues and encouraging them to join me as we
start putting together an agenda for that caucus in a new Congress.
As we celebrate the 25th anniversary of this very important bill
called the Whistleblower Protection Act, we should all recognize
whistleblowers for the sacrifices they make. Those who fight waste,
fraud, and abuse in the government should be lauded for patriotism.
Whistleblower protections are only worth anything if they are enforced.
Just because we have passed good laws does not mean we can stop
paying attention to the issue. There must be vigilance and oversight by
the Congress.
The best protection for a whistleblower is a culture of understanding
and respecting the right to blow the whistle. I hope this whistleblower
caucus will send the message that Congress expects that kind of
culture.
I call on my colleagues to help me make sure whistleblowers continue
to receive the kind of protection they need and deserve.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call
the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
STOP Identity Theft Act of 2013
Ms. KLOBUCHAR. Mr. President, I rise today to urge my colleagues to
pass the Stopping Tax Offenders and Prosecuting Identity Theft Act of
2013. With tax day coming upon us on Tuesday, the time is now to pass
this bipartisan legislation.
I worked on the STOP Identity Theft Act to address the growing
problems of tax identity theft and to protect taxpayers against
fraud. From the beginning this bill has been bipartisan. Senator
Sessions is the lead Republican on this bill, and in fact recently this
bill passed the Senate Judiciary Committee on a vote of 18-0. Given the
number of members on the committee with very different views on issues,
that is an accomplishment and shows what a pressing problem this is.
I think people will be pretty shocked, as you will be, Mr. President,
when you hear these numbers. Criminals are increasingly filing false
tax returns using stolen identity information in order to claim
victims' refunds. You might think that would be a rare incident, but as
a former law enforcement person, as the attorney general for the State
of New Mexico, I think you know anything can happen. This is a problem
where more than anything is happening.
In 2012 alone, identity thieves filed 1.8 million fraudulent tax
returns, almost double the number confirmed in 2011. The numbers and
the documents in these cases may be forged, but the dollars behind them
are real, because in 2012 there was another 1.1 million fraudulent tax
returns that slipped through the cracks, and our U.S. Treasury paid out
$3.6 billion in the fraudulent returns--$3.6 billion. That is the
number coming from the IRS. That is your taxpayer dollars going down
the drain to people who are actually stealing taxpayers' identities,
putting them on returns, filing returns, and getting back the money.
When criminals file these tax returns, it is not just the Treasury
that loses out. Everyday people are the real victims here, because when
someone else uses your identity, when someone else fakes your identity,
people are then forced to wait months and sometimes even years before
receiving their actual refund.
So what is going on? Well, we are having double refunds, right? First
they go to the thief. This is happening millions of times. Then the
real taxpayer says: Wait a minute, where is my refund, and files a
return. The government has to check this out and figure out the first
one and they then pay twice. This is what is happening in the United
States of America.
In 2012, Alan Stender, a retired businessman from the 5,000-person
town of Circle Pines, MN, was working to file his taxes on time just as
people are doing right now. After completing all the forms and sending
in his tax returns, Alan heard from the IRS that there was a major
problem. So he gets it done on time and files the return and finds out
from the IRS there is a problem. Someone had stolen his identity and
used his personal information to fraudulently file his taxes and steal
his tax return.
Just last week 25 people were arrested in Florida for using thousands
of stolen identities to claim $36 million in fraudulent tax refunds.
This included the arrest of a middle school food service worker who
sold the identities of more than 400 students, if you can believe it.
Those victims are just kids, and criminals are stealing their
identities to file fake returns.
Are you ready for this one? Attorney General Eric Holder recently
revealed that he was a victim of tax return identity theft. This came
out this week. Two young adults used his name, his date of birth, and
Social Security number to file a fraudulent tax return. They got
caught. They were prosecuted. But if you can imagine that this can
happen to the Attorney General of the United States--at least we got
action there--think about some guy in Circle Pines, MN, who has it
happen. As I said, it is happening over a million times every year,
from a retired man in Minnesota to middle school students in Florida,
to the Attorney General of the United States. It is clear that identity
theft can happen to anyone.
We also know this crime can victimize our most vulnerable citizens,
victims such as seniors living on fixed incomes or people with
disabilities who depend on tax returns to make ends meet and cannot
financially manage having their tax returns stolen. There is a lot at
stake here and action is needed. That is why I put forward the
bipartisan legislation a few years back with Republican Senator Jeff
Sessions of Alabama, to take on this problem and crack down on the
criminals committing this crime. There was also significant bipartisan
work in the House last year. A very similar bill was passed in the
House that did the same thing, passed bipartisan bills in the House of
Representatives. It happened. And the Senate now, as we know, passed it
18-0 out of the Judiciary Committee.
This critical legislation will take important steps to streamline law
enforcement resources and strengthen
[[Page S2370]]
penalties for tax identity theft. The STOP Identity Theft Act will
direct the Justice Department to dedicate additional resources to
address tax identity theft. It also directs the Department to focus on
parts of the country with especially high rates of tax return identity
theft and to boost protections for vulnerable populations such as
seniors, minors, and veterans.
We also urge the Justice Department to cooperate fully and coordinate
investigations with State and local law enforcement organizations.
Identity thieves have become more creative and have expanded from
stealing identities of individuals to stealing that of businesses and
organizations. My bill recognizes this change and broadens the
definitions of tax identity theft to include businesses, nonprofits,
and other similar organizations. This is important because once a
company or an organization's tax information is stolen, it can be used
to create fraudulent tax returns and claim false refunds.
Finally, we need to crack down on the criminals committing this
crime. This bill would strengthen tax identity theft penalties by
raising the maximum jail sentences from 15 to 20 years. I believe this
bill goes a long way in helping law enforcement use their resources
more efficiently and effectively and it is time to bring it to the
floor.
In recent weeks we have made significant progress, as I said, by
passing the bill out of the Senate Judiciary Committee unanimously on
an 18-0 vote. It doesn't happen often. I thank all of my colleagues on
the committee and all of my friends across the aisle for joining with
us to vote for this bill. After a long discussion we had amendments. We
got this bill. Every single member of the Judiciary Committee voted for
this bill, including Senator Cruz, Senator Schumer, Senator Feinstein,
and Senator Hatch. It was a unanimous 18-0 vote.
Now I want to bring this bill to the full Senate. I would love to get
this done before tax day. I know there is a holdup on the other side of
the aisle, and it is time for people to understand that this is a bill
that passed the House of Representatives, it passed on an 18-0 vote out
of Judiciary, and we simply need to get this done.
When the Attorney General of the United States of America is having
his identity stolen and his identity is used to file fake tax returns,
we have a problem. We have a problem that involves a lot of money. We
have a problem that involves 1.8 million fraudulent tax returns in 2012
alone, double the number in 2011. We have a problem that also involves
a lot of money. We have a problem that involves $3.6 billion in 1 year
alone in 2012, paid out by the U.S. Government. What do you think
taxpayers think when they hear that, that $3.6 billion went to thieves
and we have a bill that passed out of the Judiciary Committee 18-0? I
would want someone explaining why they are holding up this bill.
It is time to get this bill done. I would love to see it happen
before we go back to our home State so I can explain it to my
constituents, and I hope our colleagues on the other side of the aisle
will work with us. Because with tax season upon us, it is time to pass
this bipartisan legislation, to crack down on identity thieves and
protect the hard-earned tax dollars of innocent Americans. The time to
do it is now.
I again thank Senator Jeff Sessions for being the Republican on this
bill, and I thank all my colleagues for passing it through the
committee. I thank the House for getting it done over there. It is now
the time to pass it in the Senate.
Thank you, Mr. President. I yield the floor.
I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. PORTMAN. I would ask unanimous consent that the quorum call be
rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PORTMAN. I wish to speak as if in morning business.
The DATA Act
Mr. President, I was not able to be here earlier on the Senate floor
when my colleague Senator Warner got unanimous consent to pass the DATA
Act. This is the Digital Accountability and Transparency Act, something
we have been working on over the last couple of years.
It is a good bill, and it is about good government and I am glad we
were able to pass it this afternoon in the Senate. I now hope it will
go to the House for passage and get to the President's desk, because it
will help to give all the taxpayers a better view into our government.
Specifically, it improves Federal financial transparency and data
quality, both of which are going to help identify and illuminate the
ways we spend--certainly something we should be focused on with the
huge deficits and all the pressure we are facing.
It will also ease the compliance burden with the people working in
the Federal Government and recipients of Federal funds. At the same
time it improves the data that they send to the Federal Government. It
is a win/win for the taxpayer, for the government, at getting at the
issue of waste, fraud, and abuse.
It is an issue that transcends party lines. I want to thank my friend
Senator Coburn because he has been a leader in the Governmental Affairs
Committee and also the chairman of the committee, Senator Tom Carper.
Without their help, Senator Warner and I would not have been able to
get this bill to the floor today. We also have a number of other
cosponsors on a bipartisan basis.
We all know that the Federal Government spends a lot of money--over
$3 trillion a year. The goal is to know more about how that money is
spent so we can ensure it is being spent on the right things. This
legislation, the DATA Act, picks up on lessons we learned about how to
make it more accountable and more transparent so taxpayers have a
better understanding of how the money is being used. This has to do
with grants and contracts. I think it is something that is going to
help ensure that we are not just spending the money right but also
eliminating fraud and abuse that we otherwise would not find.
I first got involved in this issue when I was at the Office of
Management and Budget. I supported it and then was tasked with
implementing a 2006 bill that was introduced by Senator Coburn and
Senator Obama at the time. It was called the Federal Funding
Accountability and Transparency Act, FFATA--an unfortunate acronym in
my view.
FFATA worked in the sense that it led to something which is called
usaspending.gov. Back then a lot of Federal agencies thought this could
not be done; that we wouldn't be able to improve our transparency up to
the standards that were established in FFATA, and we proved them wrong,
thanks to a lot of hard work by a lot of folks in the agencies and at
the Office of Management and Budget where I served as Director. It
ended up with the ability of taxpayers to get a wealth of information
online, again, about Federal grants and Federal contracts so they could
better understand how their tax dollars were spent.
It was a good start. It also helped us learn some lessons about how
to improve fiscal data quality and transparency even more. We learned
that the usaspending.gov can be more comprehensive, more accurate, more
reliable, and more timely.
By the way, if you have not gone on this Web site, usaspending.gov, I
recommend it. If we pass this legislation, you will like it even more
because the data you will be seeing will be more understandable, will
be more uniform across the agencies, and will enable us all, as
taxpayers, to get a better view into the government.
What does it do? First, it makes it easier to compare spending across
the Federal agencies by requiring establishment of these governmentwide
standards, such as financial data standards, which is very difficult to
do, as I learned when I was at the Office of Management and Budget. It
sounds easy, but it is hard and it pays off. It promotes consistency
and reliability in data. Second, it strengthens the Federal financial
transparency by reforming and significantly improving the Web site
itself. It requires more frequent updates--quarterly financial updates
of spending by each Federal agency on their programs and at the object
class-level basis. It is basically more
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specific data and more up-to-date so it refreshes the Web site more to
make it more useful.
Third, it empowers the inspector general and the GAO to hold agencies
accountable. I think putting the inspectors general into this is a good
idea because it has another level of accountability. This will make
them more accountable for completeness, timeliness, quality, and
accuracy of the data they are submitting to the usaspending.gov. This
is new and will make the Web site work even better.
Fourth, it simplifies the reporting requirements by recipients of
Federal funds, eliminating unnecessary duplication and burdensome
regulations. It basically streamlines what people have to provide to
the Federal Government. This will actually make it easier for us to
understand what is going on with these contractors, again, as taxpayers
doing oversight, but it also makes it easier to do business with the
Federal Government. It makes it less complicated for them and gives
more transparency for taxpayers, so it is another good aspect of this
legislation.
I think each of these reforms will enhance Federal financial
accountability in real ways by allowing citizens to track government
spending better, allowing agencies to more easily identify improper
payments and unnecessary spending.
We have a big issue around here with spending. We spend more than we
take in every year to the tune of hundreds of billions of dollars. We
have a debt that is at least $17 trillion. It is time to make sure we
are not wasting money that could be applied to that debt or it could
pay for programs that are a top priority. This bipartisan legislation
will help us get there.
I am very pleased we were able to get it passed today. Again, I will
be working hard with Senator Warner and others to ensure that we get
this through the House and to the President's desk for signature so we
can indeed begin to help all of us as citizens have a better view into
our Federal Government.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. 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.
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