[Congressional Record Volume 161, Number 19 (Wednesday, February 4, 2015)]
[Senate]
[Pages S773-S781]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. LEE (for himself, Mr. Leahy, Mr. Cornyn, Mr. Moran, Mr. 
        Gardner, Mrs. Shaheen, Mr. Merkley, and Mr. Blumenthal):
  S. 356. A bill to improve the provisions relating to the privacy of 
electronic communications; to the Committee on the Judiciary.
  Mr. LEE. Mr. President, the Electronic Communications Privacy Act was 
first enacted in 1986. I would ask my colleagues, what were you doing 
in 1986? Mr. President, 1986 was a long time ago. In 1986 I was in the 
ninth grade. This was an age when not everyone had a personal computer. 
My family didn't have a computer. Most of the people I knew who had a 
computer had something like the Commodore VIC-20, which was a very 
small computer with very little processing power compared to what we 
have today. But this law, the Electronic Communications Privacy Act--or 
ECPA, as it is sometimes known--was and still is an important law with 
an increasingly important objective; that is, to ensure that government 
agencies respect the Fourth Amendment in accessing an individual's 
electronic communications.
  In the nearly three decades since ECPA became law, technology has 
advanced rapidly, dramatically, far beyond the capacity of this 
particular law, ECPA, to keep up. The prevalence of email and the low 
cost of electronic data storage have made what were once robust 
protections vastly insufficient to ensure that citizens' rights are 
protected with respect to their electronic communications, such as 
email.
  There is no reason we should still be operating under a law written 
in the analog age when we are living in a digital world. This is a 
little bit like operating with a DOS-based operating system in the age 
of much more sophisticated software systems that help us interact 
relatively seamlessly with our computers. That is why Senator Leahy and 
I have come together to craft this truly bipartisan piece of 
legislation which would modernize ECPA and bring constitutional 
protections against worthless searches and seizures into harmony with 
the technological realities of the 21st century.
  The Lee-Leahy ECPA Amendments Act of 2015 would prohibit electronic 
communications or remote computing service providers--such as Gmail or 
Facebook or Twitter, for example--from voluntarily disclosing the 
contents of customer emails or other communications. It eliminates the 
ambiguous and outdated 180-day rule that some government agencies 
believe grants them warrantless access to the content of older emails. 
That is any emails older than the very young age of 180 days old. 
Instead, all requests for the content of electronic communications 
would require a search warrant--a search warrant required by the Fourth 
Amendment, a search warrant based on probable cause--and law 
enforcement agencies would be required to notify within 10 days any 
persons whose email accounts were searched, subject to some logical and 
narrow exceptions, of course.
  This legislation is also carefully crafted so that it would not 
impede the ability of law enforcement agencies to conduct legitimate 
investigative activities consistent with the Fourth Amendment.

[[Page S774]]

  I am pleased to say that our bill enjoys very broad support from the 
technology industry, from privacy advocates, constitutional scholars, 
and policy groups on both ends of the ideological spectrum in America.
  The Lee-Leahy ECPA Amendments Act of 2015 is truly bipartisan in 
nature. The Senate bill, in addition to Senators Leahy and myself as 
the principal sponsors, also has six additional cosponsors. We have 
Republican Senators Cornyn, Moran, and Gardner and Democratic Senators 
Shaheen, Merkley, and Blumenthal. I hope and expect that we will have a 
lot of additional Senators of both political parties who will join us 
in this effort. The House version of this bill has 228 additional 
cosponsors--a very critical majority.
  By working together as a Democrat from Vermont and a Republican from 
Utah, we hope all Senators will join with us to pass this meaningful, 
bipartisan legislation that would benefit all Americans. Congress 
should pass ECPA reform this year, and President Obama should sign 
these important privacy reforms into law.
  I will end this discussion as I began. What were you doing in 1986? 
As it relates to your interaction with the digital world with 
computers, I would imagine that even though your life might be in many 
respects similar to what it was in 1986, it is very different in the 
way you interact with computers, with technology, with the online 
world, which basically no one was even aware of in 1986. Since 1986 the 
world has changed. We need to change the world to keep up with the 
times. We need to change the law to hold in place those protections 
that have been in our Constitution since 1791 to make sure the privacy 
rights of the American people are respected.
  I encourage each of my colleagues to support this bill
  Mr. LEAHY. Mr. President, I want to talk about privacy because 
privacy is not a partisan issue. It never has been, and never should 
be. Remember, 30 years ago I was in the minority. The Republicans were 
in the majority and controlled the Senate. It was then that I worked 
with my colleagues and led the effort to write the Electronic 
Communications Privacy Act, ECPA.
  It required a lot of education because back then, electronic mail was 
an emerging technology. The World Wide Web was unimaginable. Electronic 
data storage was astronomically expensive. No one could have envisioned 
the way mobile technologies would transform our lives. Yet fortunately 
many of us in Congress had the foresight to anticipate that these new 
electronic communications would also need privacy protections.
  That was 30 years ago. Look at what has changed since then. Now three 
decades later, that law is out of date. So today the Senator from Utah, 
Mr. Lee, and I are reintroducing the Electronic Communications Privacy 
Act Amendments Act of 2015. We want to bring this law into the 21st 
century. Our legislation is very straightforward. It ensures that the 
private information that we Americans electronically store in the cloud 
gets the same protections as the private information we Americans 
physically store at home. As it did in 1986, I hope the Senate will 
come together on a bipartisan basis to support these commonsense 
protections.
  All of us have an expectation that the things we store in our house 
are private. If law enforcement wants access to them, they have to get 
the proper search warrants. Today, there seems to be an idea that if 
they are stored electronically, these rules should not apply.
  I believe they should.
  The bill Senator Lee and I introduced today protects Americans' 
digital privacy--in their emails and all the other files and 
photographs they store in the cloud. It promotes cloud computing and 
other new technologies by building consumer trust. And it also provides 
law enforcement agencies with the tools they need to ensure public 
safety.
  I would remind my colleagues that several years ago the U.S. Circuit 
Court of Appeals for the Sixth Circuit found that email was fully 
protected by the Fourth Amendment. It said that ``the Fourth Amendment 
must keep pace with the inexorable march of technological progress, or 
its guarantees will wither and perish.'' This bill takes up that 
challenge.
  Obviously we have technologies today that nobody would have dreamed 
of just a couple of generations ago. But we have a Constitution that 
has protected this country for well over 200 years, and we hope it will 
protect it for hundreds of years into the future. We need to make sure 
our laws keep up with the protections we Americans expect from our 
Constitution.
  First and most importantly, the bill enshrines in statute the 
fundamental Fourth Amendment warrant requirement for email, texts, and 
other electronic data. It requires that the government have a criminal 
search warrant based on possible cause to obtain the stored content of 
Americans' email and other electronic communications from third-party 
providers. This ensures that email communications have the same 
protections as phone calls and private documents stored in your home.
  However, the bill's warrant requirement contains an important 
exception to address emergency circumstances. It explicitly states that 
it does not affect current authorities under the Wiretap Act or the 
Foreign Intelligence Surveillance Act. And it ensures that law 
enforcement can continue to investigate corporate wrong-doing by using 
grand jury subpoenas to obtain emails directly from corporate entities 
when held on their internal systems.
  The second major component of the bill requires law enforcement 
agencies to promptly notify individuals when the government has 
obtained their emails through their service providers, but permits a 
delay of that notice to protect the integrity of ongoing 
investigations--no different from what we do in other law enforcement 
matters. The bill would also require service providers to notify the 
government three days before they inform a customer that the provider 
disclosed their information to the government.
  This is not a Republican or Democratic issue, nor is it liberal or 
conservative. In fact, Senator Lee and I would note that we have a 
broad coalition of more than 50 privacy, civil liberties, civil rights, 
and technology industry groups and leaders from across the political 
spectrum who have endorsed this reform effort. Support spans from the 
Heritage Foundation and Americans for Tax Reform, to the Center for 
Democracy and Technology and the ACLU.
  Mr. President, I ask unanimous consent to have printed in the Record 
the January 22, 2015, coalition letter in support of the bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 January 22, 2015.
     Hon. Charles Grassley,
     Chairman,
     Senate Judiciary Committee.
     Hon. Patrick J. Leahy,
     Ranking Member,
     Senate Judiciary Committee.
       Dear Chairman Grassley and Ranking Member Leahy: We, the 
     undersigned companies and organizations, are writing to urge 
     speedy consideration of Sen. Leahy's and Sen. Lee's ECPA 
     Amendments Act that we expect will be introduced in the 
     coming weeks. The bill would update the Electronic 
     Communications Privacy Act (ECPA) to provide stronger 
     protection to sensitive personal and proprietary 
     communications stored in ``the cloud.'' The legislation was 
     considered and adopted by a voice vote in the Committee in 
     the 113th Congress.
       ECPA, which sets standards for government access to private 
     communications, is critically important to businesses, 
     government investigators and ordinary citizens. Though the 
     law was forward-looking when enacted in 1986, technology has 
     advanced dramatically and ECPA has been outpaced. Courts have 
     issued inconsistent interpretations of the law, creating 
     uncertainty for service providers, for law enforcement 
     agencies, and for the hundreds of millions of Americans who 
     use the Internet in their personal and professional lives. 
     Moreover, the Sixth Circuit Court of Appeals in US v. Warshak 
     has held that a provision of ECPA allowing the government to 
     obtain a person's email without a warrant is 
     unconstitutional.
       The ECPA Amendments Act would update ECPA in one key 
     respect, making it clear that, except in emergencies or under 
     other existing exceptions, the government must obtain a 
     warrant in order to compel a service provider to disclose the 
     content of emails, texts or other private material stored by 
     the service provider on behalf of its users.
       This standard would provide greater privacy protections and 
     create a more level playing field for technology. It would 
     cure the constitutional defect identified by the Sixth 
     Circuit It would allow law enforcement officials to obtain 
     electronic communications in all appropriate cases while 
     protecting

[[Page S775]]

     Americans' constitutional rights. Notably, the Department of 
     Justice and FBI already follow the warrant-for-content rule. 
     It would provide certainty for American businesses developing 
     innovative new services and competing in a global 
     marketplace. It would implement a core principle supported by 
     Digital Due Process, www.digitaldueprocess.org, a broad 
     coalition of companies, privacy groups, think tanks, 
     academics and other groups.-
       This legislation has seemingly been held up by only one 
     issue--an effort to allow civil regulators to demand, without 
     a warrant, the content of customer documents and 
     communications directly from third party service providers. 
     This should not be permitted. Such warrantless access would 
     expand government power; government regulators currently 
     cannot compel service providers to disclose their customers' 
     communications. It would prejudice the innovative services 
     that all stakeholders support, and would create one procedure 
     for data stored locally and a different one for data stored 
     in the cloud.
       Because of all its benefits, there is an extraordinary 
     consensus around ECPA reform--one unmatched by any other 
     technology and privacy issue. Successful passage of ECPA 
     reform sends a powerful message--Congress can act swiftly on 
     crucial, widely supported, bipartisan legislation. Failure to 
     enact reform sends an equally powerful message--that privacy 
     protections are lacking in law enforcement access to user 
     information and that constitutional values are imperiled in a 
     digital world.
       For all these reasons, we strongly urge all members of the 
     Senate Judiciary Committee to support the ECPA Amendments 
     Act.
           Sincerely,
       ACT--The App Association, Adobe, Amazon, American 
     Association of Law Libraries, American Booksellers for Free 
     Expression, American Civil Liberties Union, American Library 
     Association, Americans for Tax Reform and Digital Liberty, 
     AOL, Apple, Association of Research Libraries, Automattic, 
     Autonet Mobile, Brennan Center for Justice, BSA |, The 
     Software Alliance, Center for Financial Privacy and Human 
     Rights, Center for Democracy & Technology, Center for 
     National Security Studies, Cisco, Competitive Enterprise 
     Institute, Computer & Communications Industry Association, 
     Consumer Action, Council for Citizens Against Government 
     Waste, Data Foundry, Deluxe Corporation, Demand Progress, 
     Direct Marketing Association, Discovery Institute, 
     Distributed Computing Industry Association (DCIA).
       Dropbox, eBay, Electronic Frontier Foundation, Engine, 
     Evernote, Facebook, First Amendment Coalition, Foursquare, 
     FreedomWorks, Future of Privacy Forum, Gen Opp, Golden Frog, 
     Google, Hewlett-Packard, Information Technology Industry 
     Council (ITI), Internet Association, Internet Infrastructure 
     Coalition (I2Coalition), Intuit, Less Government, Liberty 
     Coalition, LinkedIn, NetChoice, New America's Open Technology 
     Institute, Newspaper Association of America, Oracle, 
     Personal, R Street, ServInt, SIIA: Software & Information 
     Industry Association, Snapchat, Sonic, Taxpayers Protection 
     Alliance, TechFreedom, TechNet, The Constitution Project, The 
     Federation of Genealogical Societies, Tumblr, Twitter, U.S. 
     Chamber of Commerce, Venture Politics, Yahoo.

  Mr. LEAHY. I am also pleased that Senators Shaheen, Moran, Cornyn, 
Merkley, Gardner, and Blumenthal have joined this effort with Senator 
Lee and I. I commend them because we do have an opportunity this year 
to make progress on bipartisan, commonsense legislation to protect the 
privacy of Americans' email and update our laws to keep pace with 
technology. And I also congratulate our House partners, Representatives 
Yoder and Polis, who are introducing this legislation today in the 
House of Representatives with 228 cosponsors from both parties.
  In the last Congress, the Senate Judiciary Committee unanimously 
supported this bill, Republicans and Democrats alike. We have continued 
the hard work of building a broad bipartisan coalition in support of 
this bill. Now is the time to act swiftly to bring our privacy 
protections into the digital age.
  I will continue to work with Senator Lee, Senator Cornyn, Senator 
Moran, Senator Shaheen, Senator Merkley, Senator Gardner, and Senator 
Blumenthal on this issue because while I am proud to have them as 
cosponsors, I am also proud that we are doing the right thing
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself, Ms. Ayotte, Mrs. Gillibrand, Mrs. 
        Boxer, Ms. Heitkamp, Ms. Baldwin, Mr. Brown, Ms. Mikulski, Ms. 
        Stabenow, Mrs. Capito, Mrs. Shaheen, Mr. Casey, Ms. Hirono, 
        Mrs. McCaskill, Ms. Warren, and Ms. Cantwell):
  S. 370. A bill to require breast density reporting to physicians and 
patients by facilities that perform mammograms, and for other purposes; 
to the Committee on Health, Education, Labor, and Pensions.
  Mrs. FEINSTEIN. Mr. President, even though we have made great strides 
in the treatment and diagnosis of breast cancer, this disease continues 
to be the second leading cause of death for women in the United States.
  When women receive their mammography report and it comes out normal, 
they usually move on with their day thinking everything is just fine. 
This may be the case, but for women with dense breast tissue this 
``normal'' report doesn't capture the whole picture. This is because 
cancer may still be present and missed on their mammogram because it is 
obscured by dense breast tissue.
  It is vital for women to be told this simple, yet potentially life-
saving, information about their own health so they can discuss with 
their doctor if additional screening makes sense for them. That could 
be the difference between catching breast cancer early and surviving, 
or waiting until its too late because you were never told your full 
medical information.
  Even though there is a risk for cancer being missed, when women 
receive their mammogram report there is currently no federal 
requirement to include notice that they have dense breast tissue. This 
is the case even though the radiologist makes that determination upon 
reading the mammogram
  This bill is a simple solution. It requires that women be informed on 
the mammogram report, that they already receive, if they have dense 
breast tissue, and that they may want to talk with their doctor if they 
have questions and if they might benefit from additional screening. 
Withholding this kind of medical information from women just doesn't 
make any sense.
  This bill doesn't change any state laws. It sets a minimum Federal 
standard, so any state that wants to have additional reporting 
requirements may do so. The bill also requires the Department of Health 
and Human Services to focus on research and improved screening for 
patients with dense breast tissue. Early detection is the key to 
beating cancer. Every patient deserves access to their own information, 
especially when it may be what saves their life.
  I want to thank Senator Ayotte for working with me on this bill. I 
urge my colleagues to join us, and Senators Gillibrand, Boxer, 
Heitkamp, Baldwin, Brown, Mikulski, Stabenow, Capito, Shaheen, Casey, 
Hirono, McCaskill, and Warren in cosponsoring the Breast Density and 
Mammography Reporting Act. This bill is supported by organizations 
including the American Cancer Society Cancer Action Network, Are You 
Dense Advocacy, Breast Cancer Fund, and Susan G. Komen.
  I look forward to working with my colleagues on this important issue.
                                 ______
                                 
      By Mr. CARDIN (for himself, Ms. Collins, Ms. Baldwin, Mr. 
        Cochran, Mr. Blumenthal, Mr. Kirk, Mr. Carper, Ms. Murkowski, 
        Mr. Casey, Mr. Portman, Ms. Cantwell, Mr. Coons, Mr. Heinrich, 
        Ms. Hirono, Mr. King, Mr. Leahy, Mr. Markey, Mr. Menendez, Mr. 
        Merkley, Ms. Mikulski, Mr. Murphy, Mr. Sanders, Mr. Schumer, 
        Mr. Wyden, and Ms. Klobuchar):
  S. 375. A bill to amend the Internal Revenue Code of 1986 to provide 
a reduced rate of excise tax on beer produced domestically by certain 
qualifying producers; to the Committee on Finance.
  Mr. CARDIN. Mr. President, I am pleased to rise today with my friend 
and colleague, the senior Senator from Maine, Senator Collins, to re-
introduce the Small Brewer Reinvestment & Expanding Workforce Act of 
2015, otherwise known as the Small BREW Act. Our esteemed former 
colleague, Senator Kerry, now Secretary of State, introduced this bill 
in the 112th Congress. I was honored to take up the mantel in the 113th 
Congress.
  The Small BREW Act of 2015 would reduce the excise tax on America's 
craft brewers. Under current Federal law, brewers producing 2 million 
or fewer barrels annually pay $7 per barrel on the first 60,000 barrels 
they brew, and $18 per barrel on every barrel thereafter, one barrel = 
31 gallons. The Small BREW Act would create a new excise tax rate 
structure that helps

[[Page S776]]

start-up and small breweries and reflects the evolution of the craft 
brewing industry. The rate for the smallest packaging breweries and 
brewpubs would be $3.50 per barrel on the first 60,000 barrels. For 
production between 60,001 and 2 million barrels, the rate would be 
$16.00 per barrel. Thereafter, the rate would be $18.00 per barrel. 
Breweries with an annual production of 6 million barrels or less would 
qualify for these recalibrated tax rates.
  The small brewer threshold and tax rate were established in 1976 and 
have never been updated. Since then, the largest multinational producer 
of beer has increased its annual production from 45 million barrels to 
97 million barrels domestically and 325 million barrels globally. To 
put the matter in perspective, the biggest domestic craft brewer 
produces 2.7 million barrels of beer annually. Raising the ceiling that 
defines small breweries from 2 million barrels to 6 million barrels 
more accurately reflects the intent of the original differentiation 
between large and small brewers in the U.S. Because of differences in 
economies of scale, small brewers have higher costs for raw materials, 
production, packaging, and market entry compared to larger, well-
established multi-national competitors. Adjusting the excise tax rate 
would provide small brewers with an additional $67 million each year 
they could use to start or expand their businesses on a local, 
regional, or national scale.
  This past November, the Joint Committee on Taxation, JCT, estimated 
the bill would cost $253 million through 2019 and $641 million over 10 
years. A March 2013 study on the costs and benefits of the Small BREW 
Act bill which then-Harvard University economist John Friedman prepared 
on behalf of the Brewers Association, BA, indicates that the bill would 
directly reduce the excise tax revenue the Federal Government collects 
by $67.0 million the first year after enactment. But Professor Friedman 
notes that such a loss would be offset in large part by $49.1 million 
in new payroll and income taxes collected on increased economic 
activity. Professor Friedman believes that demand for craft beer will 
continue to increase and the Federal Government would collect an 
additional $1.1 million in excise taxes from the increased sales. The 
net revenue loss, therefore, would be $16.9 million the first year 
after enactment. The total net revenue loss over 5 years would be $95.9 
million. The bill would lead to the creation of 5,230 new jobs in the 
first 12-18 months after passage and the cost of each new job in 
foregone revenue would be just $3,300.
  While some people may think this is a bill about beer, it is really 
about jobs. Blue collar jobs and white collar jobs. Small brewers are 
small business owners in communities in each and every State across the 
country. Roughly 75 percent of Americans now live within 10 miles of a 
brewery. Nationally, small and independent brewers employ over 110,000 
full- and part-time employees, generate more than $3 billion in wages 
and benefits, and pay more than $2.3 billion in business, personal and 
consumption taxes, according to the BA. As the craft beer industry 
grows so, too, does the demand for American-grown barley and hops and 
American-made brewing, bottling, canning, and other equipment. That 
demand creates more good jobs.
  Maryland is home to 43 craft brewers, up from 34 in 2013, with 24 
more in the planning stages. The existing breweries and brew-pubs 
employ roughly 600 people who were directly involved in producing craft 
beer in the State last year, and another 700 to 1,400 part-time workers 
including brew-pub restaurant staff and associated employees. In 2012, 
the Brewers Association determined that the economic impact of the 
craft brewing industry on the State was $455 million and that the 
industry created a total of 5,422 ``full-time equivalent'', FTE, jobs 
in Maryland, including indirect and induced jobs, paying over $185 
million in wages. Based on 2013 production figures, the Small BREW Act 
would provide Maryland's small brewers with roughly $570,000 to 
reinvest in their growing businesses and hire more workers.
  Small brewers have been anchors of local communities and America's 
economy since the start of our history. Indeed, there is a Mayflower 
document published in 1622 that explains why the Pilgrims landed at 
Plymouth Rock which states, ``For we could not now take time for 
further search or consideration: our victuals being much spent, 
especially our beer.'' Presidents from George Washington to Barack 
Obama have been homebrewers. Going back much further, the oldest extant 
recipe is for beer. And many people would argue that our thirst for 
beer is what drove man from being a hunter-gatherer to a crop 
cultivator since the earliest domesticated cereal grains were various 
types of barley better suited for beer production than making bread. 
Saint Arnulf of Metz, also known as St. Arnold, who lived from roughly 
582 to 640 AD, is known as the ``Patron Saint of Brewers'' because he 
recognized that beer, which is boiled first, contains alcohol and is 
slightly acidic, was much safer to consume than water. French chemist 
and microbiologist Louis Pasteur, 1822-1895, who discovered yeast and 
propounded the germ theory that is the basis of so much of modern 
medicine, worked for breweries for much of his career. The pH scale, 
the standard measurement of acidity, was developed by the head of 
Carlsberg Laboratory's Chemical Department in 1909. Dr Soren Sorensen, 
1868-1939, developed the pH scale during his pioneering research into 
proteins, amino acids and enzymes--the basis of today's protein 
chemistry. So it is fair to say that civilization and beer go hand-in-
hand.
  In addition to making high-quality beers, craft brewers such as 
Maryland's Flying Dog, Union Craft, Ruddy Duck, Baying Hound, Heavy 
Seas, and The Brewers Art create jobs and reinvest their profits back 
into their local economies. The Federal Government needs to be 
investing in industries that invest in America and create real jobs 
here at home. With more than 3,200 small and independent breweries and 
brew-pubs currently operating in the United States--and many more being 
planned--now is the time to take meaningful action to help them and our 
economy grow. An article in today's New York Times entitled ``Betting 
on the Growth of Microbreweries'' quotes BA economist Dr. Bart Watson 
as saying, ``Brewery after brewery is looking for ways to grow because 
when you talk to these companies, the biggest constraint is capacity. 
They're selling beer as fast as they can make it.'' Let us help them 
grow.
  I am proud to announce that Senators Baldwin, Blumenthal, Cantwell, 
Carper, Casey, Cochran, Coons, Heinrich, Hirono, King, Kirk, Klobuchar, 
Leahy, Markey, Menendez, Merkley, Mikulski, Murkowski, Murphy, Portman, 
Sanders, Schumer, and Wyden have all signed on as original co-sponsors 
of the Small BREW Act, and I encourage the rest of my Senate colleagues 
to consider joining us in this worthwhile legislative endeavor.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 375

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Small Brewer Reinvestment 
     and Expanding Workforce Act'' or as the ``Small BREW Act''.

     SEC. 2. REDUCED RATE OF EXCISE TAX ON BEER PRODUCED 
                   DOMESTICALLY BY CERTAIN QUALIFYING PRODUCERS.

       (a) In General.--Paragraph (2) of section 5051(a) of the 
     Internal Revenue Code of 1986 is amended--
       (1) by redesignating subparagraphs (B) and (C) as 
     subparagraphs (C) and (D), respectively, and
       (2) by striking subparagraph (A) and inserting the 
     following new subparagraphs:
       ``(A) In general.--In the case of a brewer who produces not 
     more than 6,000,000 barrels of beer during the calendar year, 
     the per barrel rate of tax imposed by this section shall be--
       ``(i) $3.50 on the first 60,000 qualified barrels of 
     production, and
       ``(ii) $16 on the first 1,940,000 qualified barrels of 
     production to which clause (i) does not apply.
       ``(B) Qualified barrels of production.--For purposes of 
     this paragraph, the term `qualified barrels of production' 
     means, with respect to any brewer for any calendar year, the 
     number of barrels of beer which are removed in such year for 
     consumption or sale and which have been brewed or produced by 
     such brewer at qualified breweries in the United States.''.
       (b) Conforming Amendments.--
       (1) Subparagraph (C) of section 5051(a)(2) of such Code, as 
     redesignated by this section, is amended--

[[Page S777]]

       (A) by striking ``2,000,000 barrel quantity'' and inserting 
     ``6,000,000 barrel quantity'', and
       (B) by striking ``60,000 barrel quantity'' and inserting 
     ``60,000 and 1,940,000 barrel quantities''.
       (2) Subparagraph (D) of such section, as so redesignated, 
     is amended by striking ``2,000,000 barrels'' and inserting 
     ``6,000,000 barrels''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to beer removed during calendar years beginning 
     after the date of the enactment of this Act.
                                 ______
                                 
      By Mr. GRASSLEY (for himself, Mr. Blunt, Mr. Cruz, Mr. Hatch, Mr. 
        Paul, Mr. Cornyn, Mr. Rubio, Mr. Inhofe, Mrs. Fischer, Mr. 
        Flake, Mr. Lee, Mrs. Capito, and Mr. Gardner):
  S. 378. A bill to impose certain limitations on consent decrees and 
settlement agreements by agencies that require the agencies to take 
regulatory action in accordance with the terms thereof, and for other 
purposes; to the Committee on the Judiciary.
  Mr. GRASSLEY. Mr. President, I rise today to introduce an important 
piece of regulatory reform legislation.
  A study released this past fall by the National Association of 
Manufacturers estimates that U.S. Federal Government regulations 
imposed over $2 trillion in compliance costs on American businesses in 
2012. This is an amount equal to 12 percent of our Nation's GDP.
  The study also demonstrated--and this should come as no surprise--
that the cost of complying with all those regulations falls 
disproportionately on small businesses. Small manufacturing firms, in 
particular, grapple with regulatory compliance costs that are more than 
three times those felt by the average company in the United States.
  It is no wonder why many American businesses are shuttering or moving 
their entire operation overseas. And how many folks dreamed of starting 
a small business but ultimately decided against taking the risk because 
of the overwhelming burden and uncertainty of our regulatory state?
  We have to do better.
  Small businesses are fed up with excessive Federal regulation, and 
they are making sure we know about it. A November 2014 survey conducted 
by the National Federation of Independent Business asked small business 
owners across the country to rank the ten most pressing problems they 
face. Overwhelmingly, the top two answers from small business owners 
were taxes and complying with government red tape. I am happy to say 
that this Congress intends to confront these issues head-on.
  The Federal Government needs to do everything possible to promote an 
environment that will allow private sector employers to create jobs. To 
accomplish that, common sense would tell us that the government needs 
to remove barriers to job creation rather than put up new ones.
  Unfortunately, the Obama administration has proven time and again 
that it would rather push forward with its interest-driven regulatory 
agenda than ease the heavy burden upon our economy and our 
entrepreneurs.
  To make matters worse, this administration is pursuing new 
regulations through litigation tactics that take an end-run around the 
laws enacted by Congress to ensure transparency and accountability in 
the regulatory process. This strategy has come to be known as sue-and-
settle, and regulators have been using it to speed up rulemaking and to 
keep the public, industries, and even the States away from the table 
when regulatory decisions are negotiated behind closed doors.
  Sue-and-settle cases typically follow a similar pattern. First, an 
interest group files a lawsuit against a Federal agency, claiming that 
the agency has failed to take a certain regulatory action by a 
statutory deadline. Through the complaint, the interest group seeks to 
compel the agency to take action by a new, often-rushed deadline. The 
plaintiff-interest group frequently will be one that shares a common 
regulatory and policy agenda with the agency that it sues, such as when 
an environmental group sues the Environmental Protection Agency, EPA.
  Next, the agency and interest group enter into friendly negotiations 
to produce either a settlement agreement or consent decree behind 
closed doors that commits the agency to satisfying the interest group's 
demands. The agreement is then entered by a court, binding executive 
discretion to undertake a regulatory action. And noticeably absent from 
these negotiations are the very parties who will likely be most 
impacted by the new regulation.
  Sue-and-settle tactics by advocacy groups and complicit government 
agencies have severe consequences on transparency, public 
accountability, and ultimately on the quality of the resulting public 
policy.
  Such tactics undermine congressional intent by shutting out affected 
parties, such as industries and even the States that are charged with 
implementing new regulations.
  The Administrative Procedure Act, APA, which has been characterized 
as the citizens' ``regulatory bill of rights,'' was enacted to ensure 
transparency and public accountability in our Federal rulemaking 
process. A central aspect of the APA is the notice-and-comment process, 
which requires agencies to notify the public of proposed regulations 
and to respond to comments submitted by interested parties.
  Rulemaking driven by sue-and-settle tactics, however, frequently 
results in reprioritized agency agendas and truncated deadlines for 
regulatory action. This renders the notice-and-comment requirements of 
the APA a mere formality, depriving regulated entities, the States and 
the public of sufficient time to have any meaningful input on the final 
rules. The resulting regulatory action is driven not by the public 
interest, but by special interest priorities, and often comes as a 
complete surprise to those most affected by it.
  Sue-and-settle litigation also helps agencies avoid accountability. 
Instead of having to answer to the public for controversial regulations 
and policy decisions, agency officials are able to simply point to a 
court order entering the agreement and maintain that they were required 
to take action under its terms.
  Further, the abuse of consent decrees as a method for taking 
regulatory action can have lasting negative impact on the ability of 
future administrations to adapt the Federal regulatory scheme to 
changing circumstances. Not only does this raise serious concerns about 
bad public policy; it also puts into question the constitutional impact 
of one administration's actions binding the hands of its successors.
  Sue-and-settle, and the consequences that come with such tactics, is 
not a new phenomenon. Evidence of sue-and-settle tactics and closed-
door rulemaking can be found in nearly every administration over the 
previous few decades.
  But there has been an alarming increase in sue-and-settle tactics 
under the Obama administration. A study by the U.S. Chamber of Commerce 
shows that just during President Obama's first term, 60 Clean Air Act 
lawsuits against the EPA were resolved through consent decrees or 
settlement agreements, an increase from 28 during President George W. 
Bush's second term.
  Since 2009, sue-and-settle cases against the EPA have imposed at 
least $13 billion in annual regulatory costs.
  In November 2010, environmental advocacy groups filed a complaint 
against the EPA under the Clean Water Act to compel the agency to 
revise wastewater regulations. Interestingly, the same day that the 
complaint was filed, the plaintiff-advocacy groups filed a proposed 
consent decree already signed by the EPA and requiring prompt 
regulatory action. As is characteristic of sue-and-settle cases, 
potentially affected parties were kept out of the lawsuit and 
negotiations. Such a scenario should raise serious concerns over how 
truly adversarial these lawsuits really are.
  In another case, environmental advocacy groups filed suit against the 
EPA to compel the agency to issue new air quality standards for 
pollutants from coal and oil-fired power plants. The plaintiff-advocacy 
groups alleged that the EPA had violated its statutory duty to issue 
new standards.
  An industry group intervened in the case to represent utility 
companies but was ultimately left out of subsequent negotiations 
between the plaintiffs and the EPA, which resulted in a consent decree. 
The industry group challenged the consent decree on numerous grounds, 
including the rulemaking timeframe established under the decree

[[Page S778]]

which was arguably too short to allow the public to participate fully 
in the rulemaking process.
  Nevertheless, the court approved and entered the consent decree, with 
the judge concluding that ``[s]hould haste make waste, the resulting 
regulations will be subject to successful challenge. . . If EPA needs 
more time to get it right, it can seek more time.''
  The resulting rule, despite its opaque promulgation, was estimated by 
the EPA to cost $9.6 billion annually by 2015. And according to 
estimates by the American Coalition for Clean Coal Electricity, the 
rule promulgated under the consent decree would contribute to a loss of 
1.44 million jobs in the U.S. between 2013 and 2020.
  The EPA could have done things right the first time by crafting a 
sensible, workable rule that protects the environment without causing 
unnecessary job losses or higher electricity prices for hard-working 
American families. But as a result of backroom, sue-and-settle tactics, 
we were left with a controversial regulation that fails to properly 
take into account the impact on affected parties and that remains the 
subject of litigation to this day.
  The EPA, it seems, has turned a blind eye to the calls for more 
transparency and public accountability in our Federal rulemaking 
process. In February 2014, EPA's General Counsel issued a statement 
declaring:

       The sue and settle rhetoric, strategically mislabeled by 
     its proponents, is an often-repeated but a wholly invented 
     accusation that gets no more true with frequent retelling.

  I think many would take issue with that assessment. In fact, the 
Environmental Council of the States, or ECOS--a national non-profit, 
non-partisan association made up of State and territorial environmental 
agency leaders--adopted a resolution entitled ``The Need for Reform and 
State Participation in EPA's Consent Decrees which Settle Citizen 
Suits,'' stating, among other things:

       [S]tate environmental agencies are not always notified of 
     citizen suits that allege U.S. EPA's failure to perform its 
     nondiscretionary duties, are often not parties to these 
     citizen suits, and are usually not provided with an 
     opportunity to participate in the negotiation of agreements 
     to settle citizen suits[.]

  ECOS further resolved that:

       [G]reater transparency of citizen suit settlement 
     agreements is needed for the public to understand the impact 
     of these agreements on the administration of environmental 
     programs[.]

  I agree.
  Clearly, the EPA has no intention of acknowledging the use or 
consequences of sue-and-settle tactics. And unfortunately, I think this 
sentiment is shared by other executive branch agencies today.
  That is why today I am introducing the Sunshine for Regulatory 
Decrees and Settlements Act of 2015. Senators Blunt, Hatch, Cruz, Paul, 
Cornyn, Rubio, Inhofe, Fischer, Flake, Lee, Capito and Gardner are 
cosponsors of this important bill, and I thank them for their support.
  In the House, Representative Doug Collins of Georgia is introducing a 
companion bill.
  By enacting reasonable, pro-accountability measures, the Sunshine 
bill aims to address many of the problems I have outlined so far.
  This bill provides for greater transparency by shedding light on sue-
and-settle tactics. It requires agencies to publish sue-and-settle 
complaints and notices of intent-to-sue in a readily accessible manner.
  The bill requires agencies to publish proposed consent decrees and 
settlement agreements at least 60 days before they can be filed with a 
court. This provides a valuable opportunity for affected parties to 
weigh-in, which will increase public accountability in the rulemaking 
process. It will also prevent those scenarios where lawsuits are filed 
on the same day as previously negotiated agreements, a practice that 
effectively blocks any meaningful participation by affected parties.
  The bill also makes it easier for affected parties such as States and 
business owners to take part in both the lawsuit and settlement 
negotiations to ensure that their interests are properly represented. 
It requires the Attorney General or, if appropriate, the head of the 
defendant-agency, to certify to the court that he or she has personally 
approved certain proposed consent decrees or settlement agreements 
that, for example, convert a discretionary authority of an agency into 
a non-discretionary duty to act. It requires that courts consider 
whether the terms of a proposed agreement are contrary to the public 
interest.
  The bill promotes greater transparency by requiring agencies to 
publicly post and report to Congress information on sue-and-settle 
complaints, consent decrees and settlement agreements.
  Finally, the bill resolves key constitutional concerns by making it 
easier for succeeding administrations to modify the effect of a prior 
administration's consent decrees. It does so by providing for de novo 
review of motions to modify existing consent decrees due to changed 
circumstances.
  The Sunshine for Regulatory Decrees and Settlements Act will shed 
light on the problem. It will help rein in backroom rulemaking, 
encourage the appropriate use of consent decrees and settlements, and 
reinforce the procedures laid out decades ago to ensure a transparent 
and accountable regulatory process.
  I urge my colleagues to work with me and support this important 
legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 378

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Sunshine for Regulatory 
     Decrees and Settlements Act of 2015''.

     SEC. 2. DEFINITIONS.

       In this Act--
       (1) the terms ``agency'' and ``agency action'' have the 
     meanings given those terms under section 551 of title 5, 
     United States Code;
       (2) the term ``covered civil action'' means a civil 
     action--
       (A) seeking to compel agency action;
       (B) alleging that the agency is unlawfully withholding or 
     unreasonably delaying an agency action relating to a 
     regulatory action that would affect the rights of--
       (i) private persons other than the person bringing the 
     action; or
       (ii) a State, local, or tribal government; and
       (C) brought under--
       (i) chapter 7 of title 5, United States Code; or
       (ii) any other statute authorizing such an action;
       (3) the term ``covered consent decree'' means--
       (A) a consent decree entered into in a covered civil 
     action; and
       (B) any other consent decree that requires agency action 
     relating to a regulatory action that affects the rights of--
       (i) private persons other than the person bringing the 
     action; or
       (ii) a State, local, or tribal government;
       (4) the term ``covered consent decree or settlement 
     agreement'' means a covered consent decree and a covered 
     settlement agreement; and
       (5) the term ``covered settlement agreement'' means--
       (A) a settlement agreement entered into in a covered civil 
     action; and
       (B) any other settlement agreement that requires agency 
     action relating to a regulatory action that affects the 
     rights of--
       (i) private persons other than the person bringing the 
     action; or
       (ii) a State, local, or tribal government.

     SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM.

       (a) Pleadings and Preliminary Matters.--
       (1) In general.--In any covered civil action, the agency 
     against which the covered civil action is brought shall 
     publish the notice of intent to sue and the complaint in a 
     readily accessible manner, including by making the notice of 
     intent to sue and the complaint available online not later 
     than 15 days after receiving service of the notice of intent 
     to sue or complaint, respectively.
       (2) Entry of a covered consent decree or settlement 
     agreement.--A party may not make a motion for entry of a 
     covered consent decree or to dismiss a civil action pursuant 
     to a covered settlement agreement until after the end of 
     proceedings in accordance with paragraph (1) and 
     subparagraphs (A) and (B) of paragraph (2) of subsection (d) 
     or subsection (d)(3)(A), whichever is later.
       (b) Intervention.--
       (1) Rebuttable presumption.--In considering a motion to 
     intervene in a covered civil action or a civil action in 
     which a covered consent decree or settlement agreement has 
     been proposed that is filed by a person who alleges that the 
     agency action in dispute would affect the person, the court 
     shall presume, subject to rebuttal, that the interests of the 
     person would not be represented adequately by the existing 
     parties to the action.

[[Page S779]]

       (2) State, local, and tribal governments.--In considering a 
     motion to intervene in a covered civil action or a civil 
     action in which a covered consent decree or settlement 
     agreement has been proposed that is filed by a State, local, 
     or tribal government, the court shall take due account of 
     whether the movant--
       (A) administers jointly with an agency that is a defendant 
     in the action the statutory provisions that give rise to the 
     regulatory action to which the action relates; or
       (B) administers an authority under State, local, or tribal 
     law that would be preempted by the regulatory action to which 
     the action relates.
       (c) Settlement Negotiations.--Efforts to settle a covered 
     civil action or otherwise reach an agreement on a covered 
     consent decree or settlement agreement shall--
       (1) be conducted pursuant to the mediation or alternative 
     dispute resolution program of the court or by a district 
     judge other than the presiding judge, magistrate judge, or 
     special master, as determined appropriate by the presiding 
     judge; and
       (2) include any party that intervenes in the action.
       (d) Publication of and Comment on Covered Consent Decrees 
     or Settlement Agreements.--
       (1) In general.--Not later than 60 days before the date on 
     which a covered consent decree or settlement agreement is 
     filed with a court, the agency seeking to enter the covered 
     consent decree or settlement agreement shall publish in the 
     Federal Register and online--
       (A) the proposed covered consent decree or settlement 
     agreement; and
       (B) a statement providing--
       (i) the statutory basis for the covered consent decree or 
     settlement agreement; and
       (ii) a description of the terms of the covered consent 
     decree or settlement agreement, including whether it provides 
     for the award of attorneys' fees or costs and, if so, the 
     basis for including the award.
       (2) Public comment.--
       (A) In general.--An agency seeking to enter a covered 
     consent decree or settlement agreement shall accept public 
     comment during the period described in paragraph (1) on any 
     issue relating to the matters alleged in the complaint in the 
     applicable civil action or addressed or affected by the 
     proposed covered consent decree or settlement agreement.
       (B) Response to comments.--An agency shall respond to any 
     comment received under subparagraph (A).
       (C) Submissions to court.--When moving that the court enter 
     a proposed covered consent decree or settlement agreement or 
     for dismissal pursuant to a proposed covered consent decree 
     or settlement agreement, an agency shall--
       (i) inform the court of the statutory basis for the 
     proposed covered consent decree or settlement agreement and 
     its terms;
       (ii) submit to the court a summary of the comments received 
     under subparagraph (A) and the response of the agency to the 
     comments;
       (iii) submit to the court a certified index of the 
     administrative record of the notice and comment proceeding; 
     and
       (iv) make the administrative record described in clause 
     (iii) fully accessible to the court.
       (D) Inclusion in record.--The court shall include in the 
     court record for a civil action the certified index of the 
     administrative record submitted by an agency under 
     subparagraph (C)(iii) and any documents listed in the index 
     which any party or amicus curiae appearing before the court 
     in the action submits to the court.
       (3) Public hearings permitted.--
       (A) In general.--After providing notice in the Federal 
     Register and online, an agency may hold a public hearing 
     regarding whether to enter into a proposed covered consent 
     decree or settlement agreement.
       (B) Record.--If an agency holds a public hearing under 
     subparagraph (A)--
       (i) the agency shall--

       (I) submit to the court a summary of the proceedings;
       (II) submit to the court a certified index of the hearing 
     record; and
       (III) provide access to the hearing record to the court; 
     and

       (ii) the full hearing record shall be included in the court 
     record.
       (4) Mandatory deadlines.--If a proposed covered consent 
     decree or settlement agreement requires an agency action by a 
     date certain, the agency shall, when moving for entry of the 
     covered consent decree or settlement agreement or dismissal 
     based on the covered consent decree or settlement agreement, 
     inform the court of--
       (A) any required regulatory action the agency has not taken 
     that the covered consent decree or settlement agreement does 
     not address;
       (B) how the covered consent decree or settlement agreement, 
     if approved, would affect the discharge of the duties 
     described in subparagraph (A); and
       (C) why the effects of the covered consent decree or 
     settlement agreement on the manner in which the agency 
     discharges its duties is in the public interest.
       (e) Submission by the Government.--
       (1) In general.--For any proposed covered consent decree or 
     settlement agreement that contains a term described in 
     paragraph (2), the Attorney General or, if the matter is 
     being litigated independently by an agency, the head of the 
     agency shall submit to the court a certification that the 
     Attorney General or head of the agency approves the proposed 
     covered consent decree or settlement agreement. The Attorney 
     General or head of the agency shall personally sign any 
     certification submitted under this paragraph.
       (2) Terms.--A term described in this paragraph is--
       (A) in the case of a covered consent decree, a term that--
       (i) converts into a nondiscretionary duty a discretionary 
     authority of an agency to propose, promulgate, revise, or 
     amend regulations;
       (ii) commits an agency to expend funds that have not been 
     appropriated and that have not been budgeted for the 
     regulatory action in question;
       (iii) commits an agency to seek a particular appropriation 
     or budget authorization;
       (iv) divests an agency of discretion committed to the 
     agency by statute or the Constitution of the United States, 
     without regard to whether the discretion was granted to 
     respond to changing circumstances, to make policy or 
     managerial choices, or to protect the rights of third 
     parties; or
       (v) otherwise affords relief that the court could not enter 
     under its own authority upon a final judgment in the civil 
     action; or
       (B) in the case of a covered settlement agreement, a term--
       (i) that provides a remedy for a failure by the agency to 
     comply with the terms of the covered settlement agreement 
     other than the revival of the civil action resolved by the 
     covered settlement agreement; and
       (ii) that--

       (I) interferes with the authority of an agency to revise, 
     amend, or issue rules under the procedures set forth in 
     chapter 5 of title 5, United States Code, or any other 
     statute or Executive order prescribing rulemaking procedures 
     for a rulemaking that is the subject of the covered 
     settlement agreement;
       (II) commits the agency to expend funds that have not been 
     appropriated and that have not been budgeted for the 
     regulatory action in question; or
       (III) for such a covered settlement agreement that commits 
     the agency to exercise in a particular way discretion which 
     was committed to the agency by statute or the Constitution of 
     the United States to respond to changing circumstances, to 
     make policy or managerial choices, or to protect the rights 
     of third parties.

       (f) Review by Court.--
       (1) Amicus.--A court considering a proposed covered consent 
     decree or settlement agreement shall presume, subject to 
     rebuttal, that it is proper to allow amicus participation 
     relating to the covered consent decree or settlement 
     agreement by any person who filed public comments or 
     participated in a public hearing on the covered consent 
     decree or settlement agreement under paragraph (2) or (3) of 
     subsection (d).
       (2) Review of deadlines.--
       (A) Proposed covered consent decrees.--For a proposed 
     covered consent decree, a court shall not approve the covered 
     consent decree unless the proposed covered consent decree 
     allows sufficient time and incorporates adequate procedures 
     for the agency to comply with chapter 5 of title 5, United 
     States Code, and other applicable statutes that govern 
     rulemaking and, unless contrary to the public interest, the 
     provisions of any Executive order that governs rulemaking.
       (B) Proposed covered settlement agreements.--For a proposed 
     covered settlement agreement, a court shall ensure that the 
     covered settlement agreement allows sufficient time and 
     incorporates adequate procedures for the agency to comply 
     with chapter 5 of title 5, United States Code, and other 
     applicable statutes that govern rulemaking and, unless 
     contrary to the public interest, the provisions of any 
     Executive order that governs rulemaking.
       (g) Annual Reports.--Each agency shall submit to Congress 
     an annual report that, for the year covered by the report, 
     includes--
       (1) the number, identity, and content of covered civil 
     actions brought against and covered consent decree or 
     settlement agreements entered against or into by the agency; 
     and
       (2) a description of the statutory basis for--
       (A) each covered consent decree or settlement agreement 
     entered against or into by the agency; and
       (B) any award of attorneys fees or costs in a civil action 
     resolved by a covered consent decree or settlement agreement 
     entered against or into by the agency.

     SEC. 4. MOTIONS TO MODIFY CONSENT DECREES.

       If an agency moves a court to modify a covered consent 
     decree or settlement agreement and the basis of the motion is 
     that the terms of the covered consent decree or settlement 
     agreement are no longer fully in the public interest due to 
     the obligations of the agency to fulfill other duties or due 
     to changed facts and circumstances, the court shall review 
     the motion and the covered consent decree or settlement 
     agreement de novo.

     SEC. 5. EFFECTIVE DATE.

       This Act shall apply to--
       (1) any covered civil action filed on or after the date of 
     enactment of this Act; and
       (2) any covered consent decree or settlement agreement 
     proposed to a court on or after the date of enactment of this 
     Act.
                                 ______
                                 
      By Mr. HATCH (for himself, Mr. Cornyn, Mr. Lee, Mr. McCain,

[[Page S780]]

        Mr. Enzi, Mr. Scott, Mr. Johnson, Mr. Inhofe, Mr. Blunt, Mr. 
        Moran, Mr. Isakson, Mr. Gardner, Mr. Hoeven, Mr. Barrasso, Mr. 
        Crapo, Mr. Wicker, Mr. Vitter, Mr. Heller, Mr. Alexander, Mr. 
        Toomey, Mr. Boozman, Ms. Ayotte, Mr. Thune, Mr. Kirk, Mr. 
        Roberts, Mr. Portman, Mr. Cruz, Mr. Graham, Mr. Cassidy, Mr. 
        Rubio, Ms. Murkowski, Mrs. Fischer, Mr. Flake, Mr. Risch, Mr. 
        Perdue, Mr. Cochran, Mr. Lankford, Mr. Burr, Mrs. Capito, Mr. 
        Sullivan, Mr. Daines, Mr. Rounds, Mr. McConnell, Mr. Grassley, 
        Mr. Coats, Mrs. Ernst, Mr. Tillis, Mr. Cotton, Ms. Collins, Mr. 
        Shelby, Mr. Corker, Mr. Paul, Mr. Sessions, and Mr. Sasse):
  S.J. Res. 6. A joint resolution proposing an amendment to the 
Constitution of the United States relative to balancing the budget; to 
the Committee on the Judiciary.
  Mr. HATCH. Mr. President, today I am introducing a resolution 
proposing a constitutional amendment to require that Congress and the 
President handle the American people's money more responsibly and 
balance the Nation's debt and budget. Like the last two Congresses, the 
entire Republican Conference has cosponsored this proposal.
  I know the Constitution sets a high threshold for Congress to propose 
an amendment, but it is critical we do so for three reasons:
  First, piling up more debt year after year is imposing greater and 
greater harm to our economy and to our society. Last week, 
Congressional Budget Office Director Douglas Elmendorf testified before 
the House Budget Committee, noting that the national debt is expected 
to swell by another $7.6 trillion--trillion with a T--over the next 10 
years. He said:

       Such large and growing national debt would have serious 
     negative consequences, including increasing Federal spending 
     for interest payments; restraining economic growth in the 
     long term; giving policymakers less flexibility to respond to 
     unexpected challenges; and eventually heightening the risk of 
     a fiscal crisis.

  He is the Director of the Federal budget office and he said that on 
January 21, 2015. Just think about that. And he is a Democrat. He has 
been a very good budget director, as far as I am concerned, and I have 
enjoyed looking at his analyses over the years.
  Our Nation is on an unsustainable path and we simply cannot wait any 
longer to make responsible decisions for our future.
  Second, Washington will not keep our fiscal house in order unless 
required to do so by the Constitution. Congress has pretended that good 
intentions alone would keep our checkbook balanced. Congress has tried 
putting limits in place by legislation or other rules. Congress has 
stuck its head in the sand or at other times cried that the sky would 
fall if we really did get our fiscal act together. Over many decades we 
have demonstrated that nothing short of a constitutional requirement 
will work.
  Third, the American people have the right to set rules for how 
Washington handles their money. The Constitution is a rulebook for 
government and it belongs to the American people. Proposing an 
amendment does not add it to the Constitution but only sends it to the 
States for debate and consideration. And while it takes two-thirds of 
Congress to propose an amendment to the Constitution, it takes three-
fourths of the States to ratify it. That high level of national 
consensus may or may not exist, but the American people deserve the 
opportunity to find out.
  On June 7, 1979, nearly 36 years ago, I stood on this floor when I 
introduced Senate Joint Resolution 86, my first balanced budget 
amendment. In today's dollars the budget deficit that year was $95 
billion and the national debt was $2.6 trillion, which was about 30 
percent of our gross domestic product. I said then that only in 
Washington could this situation be described as anything less than 
obscene.
  The more things change, the more they stay the same. I concede a few 
things have changed since 1979. For example, the deficit for the 
current fiscal year is six times higher than it was in 1979, and the 
national debt is seven times as large. To put that number in 
perspective, the national debt is now larger than our entire economy.
  The situation is not only getting worse, it is getting worse faster 
than ever. More than 40 percent of the national debt accumulated since 
our founding has piled up under President Obama, and he has 2 more 
years in office. While those things have changed, and changed for the 
worse, the choice before us remains the same.
  Some of my colleagues might disagree with the CBO Director and think 
that piling up trillions and trillions of dollars in debt is no big 
deal; that these are just numbers in the air with no impact on the real 
world. Perhaps they think our large and growing national debt won't 
have any negative consequences, won't impede economic growth, won't 
restrain policymakers' flexibility to respond to challenges, and won't 
heighten the risk of the fiscal crisis. Some of my colleagues might 
believe we have no obligation to handle the American people's money 
responsibly or perhaps they believe this money belongs to government 
and not the American people at all.
  Some of my colleagues might insist, despite decades of demonstrated 
failure, that Congress can somehow get its fiscal act together on its 
own. One definition of insanity is doing the same thing over and over 
and expecting different results.
  Some of my colleagues might say the American people should not be 
able to set fiscal rules for the government they elect. Perhaps they 
think the Federal Government should control the Constitution, not the 
other way around.
  I say to my colleagues who think those things: I can understand why 
you would oppose sending this balanced budget amendment to the States 
for consideration.
  But now a word to my other colleagues: If you think this growing 
mountain of debt is dangerous and must be stopped, if you believe we 
have exhausted every other means of stopping it, and if you say the 
American people have the right to decide how their government should 
operate, then I invite you to support this joint resolution, S.J. Res. 
6.
  The Senate has on four separate occasions voted on a balanced budget 
amendment since I introduced that proposal in 1979. You can see it on 
this chart. We actually passed one in 1982 when the national debt was 
$2.5 trillion. But the House, controlled by Democrats at the time, did 
not take it up.
  The Senate voted on another balanced budget amendment in 1994 when 
the national debt was $6.9 trillion. It fell a few votes short.
  Three years later, when the national debt was $7.9 trillion, we came 
within a single vote of passage in 1997.
  And in 2011, the fourth from the left there on the chart, we voted on 
the last balanced budget amendment I introduced. At that time, the 
national debt had grown to $15.1 trillion, and it is almost $3 trillion 
higher today.

  CBO tells us not only that the national debt will swell by an 
additional $7.6 trillion in the next 10 years, but that interest on 
that debt will be a larger and larger portion of the budget. The low 
interest rates we see today, after all, will not last forever.
  CBO warns that, on our current path, interest costs alone will 
quadruple from $200 billion today to nearly $800 billion in 10 years. 
In only 6 years, if we do not change course, spending on interest will 
surpass either defense or nondefense spending. Every dollar spent to 
service debt cannot be spent protecting our country or helping our 
citizens. This is the fiscal equivalent of fiddling while Rome burns. 
The debt keeps growing, the danger keeps building, while Congress keeps 
pretending and stalling.
  What if we had sent a balanced budget amendment to the States in the 
1970s, 1980s, or even 1990s? How different would the budget process be 
today?
  When I spoke here in June 1979, I offered two additional reasons for 
adopting a balanced budget amendment.
  First, I said a fixed spending ceiling ``requires that Congress think 
in order of budget priorities.''
  Second, I said:

       In my mind, a balanced budget or spending limitation 
     amendment offers the potential to impose new limits upon the 
     National Government, replacing those that have largely been 
     eroded over the years.


[[Page S781]]


  That is why the American people have never been able to use their 
Constitution to set fiscal rules for Washington--because doing so would 
set limits the national government does not want. But our liberty 
depends on setting and enforcing such limits.
  I will repeat what I said here in 1979:

       This is certainly not a trivial objective. Rather, it goes 
     to the heart of what our system of government is going to be 
     in the future.

  That is the choice before us, and before the American people.
  I have to say that if we look at the current budget, it is a fraud 
the President has submitted. It is pathetic. And even with that current 
budget, saying they are going to save us money, we are about a half 
trillion dollars in debt--in further debt, I might add. It is piling up 
in irreducible ways. It is something we have to do something about. We 
can no longer sit around and pretend that, somehow, Congress is going 
to take care of it, when Congress doesn't have the will to take care of 
it. A balanced budget amendment is an important part of changing that.
  I will speak later on the actual amendment and what it says and what 
it means and how it will work. I believe it is an appropriate way of 
bringing this country under control and getting us to live within our 
means. It will take time even if we start today. But we are not 
starting today.
  This administration cannot get anywhere near what it wants in this 
budget without a huge tax increase. We have had tax increase after tax 
increase after tax increase, and it never makes a dip in the Federal 
debt. We have to wake up around here and start doing some things right, 
or this country--the greatest country in the world--will not be able to 
remain so. But it has to.
  If we look at the rest of the world--we are in terrible shape 
throughout the rest of the world. There is no other country in this 
world that can lead like ours can--except for evil. There are countries 
that can really lead, but they would lead for evil. We have got to stop 
that. And the only way we can is to have a nation that lives within its 
means, does what is right, and balances its budget. It is going to take 
years, if we pass this amendment, to balance the budget. If the 
amendment gets passed and then is supported by three-quarters of the 
States--38 States--this amendment will do the job.
  Whatever we do, it is going to be tough. But that is better than a 
profligacy that is continuing to go along under all kinds of phony 
arguments that, when we look back on them, are really phony. They act 
as though they are really trying to do something about this, while 
spending us into bankruptcy, and more and more causing us to not be 
able to live within our means.
  We have got to change this, and I am convinced the only way we will 
is with a balanced budget amendment to the Constitution. It is the only 
way we can find enough people in this country who respect the 
Constitution to cause the result that we live--or at least start 
living--within our means.

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