Congressional Record, Volume 161 Issue 164 (Wednesday, November 4, 2015)

[Congressional Record Volume 161, Number 164 (Wednesday, November 4, 2015)]
[Senate]
[Pages S7743-S7755]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2016--MOTION TO PROCEED

Mr. McCONNELL. Mr. President, I move to proceed to H.R. 2685.
The PRESIDING OFFICER. The clerk will report the motion.
The senior assistant legislative clerk read as follows:

Motion to proceed to Calendar No. 118, H.R. 2685, a bill
making appropriations for the Department of Defense for the
fiscal year ending September 30, 2016, and for other
purposes.

The PRESIDING OFFICER. The Senator from Texas.

Unanimous Consent Request--S. 2193

Mr. CRUZ. Mr. President, our country does many things well, but our
government in Washington often fails the people whom it exists to
protect. One of the best examples is the Obama administration's failure
to enforce our Nation's immigration laws, despite the American people's
continued demands that the Federal Government follow its duty to do so.
It is worth noting that just yesterday the voters of San Francisco
voted to replace the sheriff who had defended the sanctuary city
policy. That is a striking statement of where the American people are
on this issue.
Unfortunately, the Democrats in the Nation's Capitol refuse to listen
to the American people. Just 2 weeks ago, Senate Democrats blocked a
bill that would have imposed a 5-year minimum mandatory sentence on
criminal aliens who have illegally reentered the country. This issue is
too important to give up and this fight is far from over. That is why I
intend to call up Kate's Law for its urgent and immediate passage in
the Senate. This bill is named in honor of Kate Steinle, who died
tragically in the arms of her father on a San Francisco pier after
being fatally shot by an illegal alien who had been deported from the
United States multiple times.
When it comes to stopping sanctuary cities and protecting our safety,
we need governing, we need leadership, and we need elected officials in
Washington to listen to the people we are elected to represent. We need
to actually fix the problem. Enough hot air, let's demonstrate we can
come together and solve this problem. This ought to be a clear choice.
With whom do you stand? Do you stand with violent criminal illegal
aliens or do you stand with American citizens? Do you stand with our
sons and daughters and those at risk of violent crime? I hope my
colleagues in the Senate will come together and stand in bipartisan
support that we stand with the American people.
I will note that Bill O'Reilly has been tremendous, calling over and
over again on leaders of this body simply to pass Kate's Law. This is
not a partisan

[[Page S7744]]

issue, at least it should not be. We should stand with American
citizens. I am reminded of the heartbreaking words of Kate Steinle as
she lay in her father's arms. She simply said: ``Dad, help me.'' Well,
we have an opportunity to determine if we are willing to listen to her
dying words, if we are willing to stand with her. I would note, by the
way, this should not be a red State-blue State issue.
For the people of San Francisco to throw out of office the sheriff
responsible for the policies that led directly to Kate Steinle's murder
indicates that even in the bluest of blue cities and the bluest of blue
States, the American people are tired of politicians standing with
violent criminal illegal aliens. This should bring us together. We
should stand together and say we will protect the American citizens.
I will tell you, the Obama administration's record on this is
shocking. In 2013, the Obama administration released from detention
roughly 36,000 convicted criminal aliens who were awaiting the outcomes
of deportation proceedings. These criminal aliens were responsible for
193 homicide convictions. They were responsible for 426 sexual assault
convictions. They were responsible for 303 kidnapping convictions. They
were responsible for 1,075 aggravated assault convictions. They were
responsible for 16,070 drunk driving convictions.
On top of that, the Obama administration had another 68,000 illegal
immigrants with criminal convictions whom the Federal Government
encountered but never even bothered to take into custody for
deportation. That is over 104,000 criminal illegal aliens the Obama
administration is responsible for releasing to the public.
I ask my friends on the Democratic side of the aisle how you look in
the eyes of a father or mother who has lost their loved one because of
a violent criminal illegal alien, who has murdered, who has raped, who
has assaulted, who has kidnapped, who has brutalized your child? We are
responsible for the consequences of our actions. Kate's Law is
commonsense legislation. It is legislation that says: If a criminal
illegal alien who is an aggravated felon--who is the worst of the
worst--illegally reenters this country, comes in a second time, that
criminal illegal alien will face a mandatory minimum of 5 years in
prison.
If Kate's Law had been passed 5 years ago, Kate Steinle would still
be alive. That means every Democrat who stands up and blocks Kate's Law
needs to be prepared to explain why standing with violent criminal
illegal aliens is more important than protecting American citizens.
I am proud to have joining me as cosponsors of Kate's Law Senator
Grassley, Senator Vitter, Senator Rubio, and Senator Perdue. They are
all coming together in what should be bipartisan leadership to protect
the American citizens.
Mr. President, accordingly, I ask unanimous consent that the Senate
proceed to the immediate consideration of S. 2193; further, that the
bill be read a third time and passed and the motion to reconsider be
made and laid upon the table with no intervening action or debate.
The PRESIDING OFFICER. Is there objection?
Mr. CRUZ. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CRUZ. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
A unanimous consent request is pending before the body. Is there
objection?
Mr. REID. Mr. President, reserving the right to object.
The PRESIDING OFFICER. The Democratic leader.
Mr. REID. Mr. President, the new mandatory minimum sentences this
bill would create would have a crippling financial effect--that is an
understatement--with no evidence that they would actually deter future
violations of law. This legislation would require about 20,000 new
prison beds--20,000--12 new prisons and cost over $3 billion.
This is yet another attack on the immigrant. The reason this bill did
not go through the Judiciary Committee is because Republican Senators
objected to it going through the committee. In the House, Speaker Ryan
said he cannot trust the President to do immigration reform. In the
Senate, after passing a bipartisan bill in 2013, all we have seen from
Republican leaders and their caucus are bills to attack immigrants and
to tear families apart. So I object.
The PRESIDING OFFICER. Objection is heard.
Mr. CRUZ. Mr. President, you know I will tell you it is sad that the
Democratic leader chooses to stand with violent criminal illegal aliens
instead of American citizens, but even sadder is that he impugns legal
immigrants. When the Democratic leader suggests that incarcerating
aggravated felons, murderers, and rapists who illegally enter the
country is somehow a slight to immigrants--I am the son of an immigrant
who came legally from Cuba. There is no one in this Chamber who will
stand and fight harder for legal immigrants than I will. For the
Democratic leader to cynically suggest that somehow immigrants should
be lumped into the same bucket as murderers and rapists, it
demonstrates the cynicism of the modern Democratic Party, it
demonstrates just how out of touch the modern Democratic Party is.
You know who does not agree with the Democratic leader? The voters of
San Francisco--I would venture to say almost all of whom consider
themselves Democrats. Yet they just voted out the sheriff for saying
basically the same thing the Democratic leader did, for saying that the
Democratic Party stands with violent felon illegal immigrants instead
of the American citizens.
Let's listen to what the Democratic leader just said: Gosh, it would
cost too much to incarcerate aggravated felons who illegally reenter
the country. If it costs too much to lock up murderers, rapists,
kidnappers, then you know what, we need to spend the money it needs to
lock up every single murderer we can. I am sorry the Democratic Party
does not want to spend the money to lock up murderers, and instead
apparently it is cheaper to lose our sons and daughters. I think we
have the resources to lock up murderers. There should be no confusion
where the parties stand.
The Democratic leader suggested that locking up aggravated felons is
somehow disrespectful to immigrants. With all respect, as the son of an
immigrant, I believe immigrants who come here legally, who are not
criminals, should be treated markedly different from murderers and
rapists. Yet the Democratic Party chooses to stand with the murderers,
rapists, and violent criminals. That is unfortunate, indeed.

Unanimous Consent Request--S. Res. 224

Mr. President, I would now like to turn to a second matter. This is a
matter I have raised a number of times on the Senate floor and intend
to continue raising. It is the matter of the human rights abuses in the
People's Republic of China. I would like to talk about some specific
examples, starting with the one-child policy. I want to talk to you
about Feng Jianmei.
PRC officials forced Feng Jianmei, who was 7 months pregnant with her
second daughter, to undergo an abortion. While her husband Deng Jiyuan
was at work, five family planning officials abducted Ms. Feng on June
2, 2012. When she could not pay the fine of 40,000 RMB, they restrained
her and forcibly aborted her daughter.
As her husband recounted, ``At the hospital, they held her down. They
covered her head with a pillowcase. She could not do anything because
they were restraining her.'' The so-called ``medics'' forced her to
``sign'' an abortion consent form by inking her thumb and pressing it
against the paper. Then they proceeded to inject toxins into the brain
of her unborn daughter.
After the injection, Jianmei suffered excruciating contractions until
3 a.m. on June 4. Then, having received no anesthesia, she gave birth
to her deceased child. Jianmei said:

I could feel the baby jumping around inside me all the
time, but then she went still. It was much more painful than
my first childbirth. The baby was lifeless. She was all
purple and blue.

In an act of heartlessness that is difficult to comprehend, the so-
called doctors who performed this abortion left the lifeless body of
Feng's 7-month-old

[[Page S7745]]

baby on her bed beside her, leaving a bereaved mother with nothing but
the sight of what could have been. Feng Jianmei's father-in-law rushed
to the hospital, but family planning officials prevented him from
seeing Jianmei until after the abortion.
After seeing her mother for the first time after her forced abortion,
Feng's elder daughter innocently inquired, ``What happened to your
tummy? Where did the baby go?''
Reggie Littlejohn, a world-renowned human rights activist who broke
this story in the United States, stated in the wake of this tragic
story: ``This is an outrage. No legitimate government would commit or
tolerate such an act.''
China is among the leading nations in suicide rates. It is the only
nation where more women commit suicide than men. A large contributing
factor to this morose distinction is the totalitarian one-child policy.
Another example is the crackdown on lawyers. When the United States
engages with China in any sort of bilateral negotiation or agreement,
we have to understand that the rule of law is not a reality in the PRC.
Despite laws duly passed by the National People's Congress, and a
supposed Constitution, the reality since 1949 remains unchanged: China
has a ``rule of the party''--the Communist Party--and it is ready to
punish anyone who challenges its violation of the law within the legal
system.
The latest example is human rights lawyer Pu Zhiquiang. In early May
2014, Pu attended a small, private seminar where the participants
discussed the Tiananmen Square Massacre and the party's violent
suppression of students. Pu was a student leader during the infamous
1989 protests, so marking the auspicious occasion was no doubt of
personal importance to him.
The following month Pu was arrested and charged with ``illegally
obtaining personal information of citizens'' and ``picking quarrels and
provoking trouble.'' As the year progressed, PRC authorities added
additional charges ``inciting splittism'' and ``inciting ethnic
hatred.'' In May 2015, a Beijing court officially indicted Pu on two of
these charges, and he remains in custody today.
While legal officials cited Pu's criticisms of the PRC's treatment of
the Uighur ethnic minorities, his real offenses were taking cases and
representing victims of forced eviction and shining a light on China's
labor camps. His defendants included a who's who of China's prominent
political dissidents, including Liu Xiaobo--a brave, selfless action
that undoubtedly painted a target on Pu's back.
Prior to his arrest, the PRC praised Pu as a paragon of social
justice. The state-run China Newsweek magazine named Mr. Pu the most
influential person in promoting the rule of law in 2013. This is a
microcosm of life in authoritarian China: Compliance with the party and
compliance with the law are often at odds, and the party always wins.
In the past year, Beijing has detained and jailed hundreds of
activists standing for the rule of law, ideals the party ostensibly
espouses. Words are one thing; public embarrassment of public officials
is quite another. Xi Jinping and his cohorts cannot abide the erosion
of their credibility or anything that would threaten their legitimacy.
A third example is Pastor Zhang Shaojie. Under President Xi, the
atheist Communist Party of China has targeted Christianity for special
oppression. Using a campaign in Zhejiang--a province which President Xi
ran earlier in his career--to forcibly remove crosses from churches, in
some cases, the PRC has gone on to bulldoze entire churches and to
arrest pastors and congregants for standing boldly for their faith.
Persecution of Christianity is not confined to Zhejiang. One such
victim of this crackdown is Pastor Zhang Shaojie. On July 24, 2014, the
Nanle County People's Court, ignoring domestic and international due
process provisions, sentenced Pastor Zhang Shaojie to 12 years in
prison on a count of ``fraud'' and ``gathering a crowd to disrupt
public order.''
Again, arrest charges in China do not reflect reality. Prior to his
arrest, Pastor Zhang was defending the rights of his church in regard
to the land they had purchased. Pastor Zhang and his parishioners
traveled to Beijing three times in November 2013 seeking resolution of
the land dispute. Maybe this is what the People's Court meant by
``fraud.'' According to his congregants, the minister also had a
ministry of helping victims of legal injustice seek restitution.
Perhaps this is what the Communist Party referred to in its charge of
``disrupting public order.''
The following month, the Puyang Municipality Intermediate People's
Court rejected Zhang's appeal.
In October, the Nanle County Court threatened to auction off Zhang's
house to pay for a court-ordered fine, ordering Zhang's family to leave
the house by October 26. In response, Zhang's mother physically stood
between the Chinese officials and her home, holding gasoline in one
hand and a lighter in the other.
It is a sad reflection of China's supposed progress on human rights
when a citizen feels her only recourse against a dictatorial regime is
the threat of self-immolation.
His sister, having been detained, along with several of Pastor
Zhang's parishioners, suffered in one of China's most infamous black
prisons for 1\1/2\ years. Her words, penned in this letter, require no
substitute:

I am Zhang Cuijian, one of the Nanle County Christian
Church members detained in 2013. When my brother was
kidnapped, I went with other church members to the public
security bureau for information about his detention.
Unexpectedly, I became the target of arrest, as well as more
than a dozen other church members. We became prisoners who
were unprepared and innocent. The prison was hell on earth;
no other words can describe it.
In prison, I was very grateful. I truly felt that God was
with me, even though I suffered punishment in prison. I had a
thankful heart; I had joy from God. I deeply know my true and
living God. While my body suffered, my heart was free. God
let me learn different life lessons. I know that the more
persecution I endure, the greater the blessing.

In America, we should stand with victims of oppression. In America,
we should stand with Christians being persecuted by the brutal
Communist totalitarian dictatorship. In America, we should stand for
women's rights. Women being forced to have abortions are horrific acts
of brutality. They are inhumane. They are contrary not only to American
values but to human rights across the globe, and they are carried out
as a matter of policy in the People's Republic of China.
When it comes to Chinese oppression, when it comes to Communist
oppression, this is not an abstract or academic matter for me. My
family has been tortured at the hands of Communists in Cuba. My father
was imprisoned and tortured by Batista in Cuba, and my aunt was
imprisoned and tortured by Castro's Communist goons in Cuba.
Communist oppression is real, and we have a powerful example of what
America could do. When the Soviet Union was in power, this body renamed
the street in front of the Soviet Embassy ``Sakharov Plaza.'' Renaming
that was done by President Reagan.
Iowa Senator Chuck Grassley introduced the resolution in this body.
Every day the Soviet officials had to write on the address of their
Embassy: ``Sakharov Plaza,'' honoring the imprisoned dissident. This
resolution is to use the same power of moral clarity, the same power of
shaming, and the same power of speaking the truth to shine a light on
the oppression in China.
When Senator Grassley took the lead with Sakharov Plaza, that helped
shame the Soviet Union into changing their conduct. We should use the
same moral authority with respect to the People's Republic of China.
My resolution is cosponsored by Senator Rubio, Senator Toomey, and
Senator Sasse. It was on a path to being unanimously approved in this
body. Every Republican had signed off on it and initially every
Democrat had as well. Yet moments before it was about to pass the
Senate, unfortunately the senior Senator from California decided to
come to the floor and object.
After objecting, after blocking its passage, Senator Feinstein put
out a press release, a press release with which I agree emphatically.
Senator Feinstein observed, powerfully, that ``we urgently request the
Chinese government to allow Liu Xia to seek medical treatment abroad
and release Liu Xiabo, the world's only jailed Nobel Peace Prize
laureate.''
Senator Feinstein was exactly right. If anything should bring us
together in

[[Page S7746]]

bipartisan agreement, it should be against the Communist Party's
wrongful imprisonment and oppression of a Nobel Peace laureate. Yet
sadly, each time I have attempted to follow the successful pattern of
Sakharov Plaza, to rename the street in front of the Chinese Embassy
``Liu Xiabo Plaza,'' the senior Senator from California stood and
objected.
For the life of me I cannot understand why any Member of this body
would choose to stand with Communist Party oppressors against
dissidents, against human rights, against women's rights, against the
rights of those standing to speak for freedom.
Yes, we have to negotiate with the Chinese. Yes, we have to talk to
them. Just like in the Cold War, we negotiated at Reykjavik with
Gorbachev, but we did it from moral authority and truth.
If we are afraid of even embarrassing the Communist Party, if their
conduct doesn't embarrass them, we shouldn't shy away from speaking the
truth.
Mr. President, I ask unanimous consent that the Homeland Security and
Governmental Affairs Committee be discharged from further consideration
of and the Senate now proceed to the consideration of S. Res. 224. I
ask unanimous consent that the resolution be agreed to, the preamble be
agreed to, and the motions to reconsider be laid upon the table.
The PRESIDING OFFICER (Mr. Perdue). Is there objection?
The Senator from California.
Mrs. FEINSTEIN. Mr. President, reserving the right to object, and
this is the first time I will have objected, I would like--since my
name was raised and a communication of mine was read--to explain the
circumstances.
Yes, this is a press release that I wrote, and, yes, I do feel that
the wife of this man should be released from house arrest and the man
himself, the Nobel laureate, should be released by the Chinese. He has
certainly served time for a substantial period, and more than that I do
not believe it works to the benefit of China, the family, human rights
or the progress of the country.
Unlike the Senator from Texas, I have had a long experience with the
Chinese, going back more than 30 years. I know what can convince them
to move toward a goal and I know what will become a real stumbling
block and a point of opposition. To change the name of a street on
which the Chinese Embassy in the United States rests will only be a
greater stumbling block to achieving this goal, so I will object to
that.
Since my name was also raised--or San Francisco's name was raised in
his prior discussion, I would respectfully ask if I could make a few
remarks about Kate Steinle and the situation the Senator from Texas has
raised.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Thank you very much.
Respectfully, Senator, I do not believe that you know much about San
Francisco. I am a lifelong San Franciscan. I served the city as a mayor
for 9 years, president of the board of supervisors for 7 years, and
another 8 years as supervisor. I believe I know something about the
city of my birth, my education.
The reason for the defeat of the sheriff is multifaceted. It doesn't
just begin with one thing, and I want you to know that.
With respect to the situation we spoke about, which is whether a
local sheriff should in fact respond to a Federal Government request,
if that request is for a detainer, if that request is for a
communication, I believe very strongly that sheriff should do that. And
was that part of the campaign of the sheriff that is going to be the
sheriff-elect? I can't say with any specificity, but I can say that is
my belief.

I think going overboard and punishing everybody makes very little
sense. So I am hopeful the Department of Homeland Security, through its
efforts with the PEP program, will be able to secure cooperation from
the city and county of San Francisco. If it does not, then that is
another story. But I believe the Department is making headway in
discussions with other communities that are in fact sanctuary cities.
Since we are on the subject, in 1985, as mayor of the city, I was the
first person to be sought out by the archbishop who asked for a brief
reprieve or a reprieve for nuns from El Salvador, and that was the
first piece of legislation. It was small and it was restricted to a
country that was in a civil war with some terrible things happening.
Since that time, the sanctuary concept has expanded considerably and,
to some extent, I think far beyond what it should be. But I think the
way to do this is through hearings and discussion among the Members and
not with over-the-top rhetoric that moves visceral impulses--because we
have to live, Senator, by the public policy we espouse, and we have to
know that it is wise and prudent. I deeply believe that.
So I just wanted to clarify the record, and I thank the Senator for
allowing me to do so.
I yield the floor, and I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Texas.
Mr. CRUZ. Mr. President, I would note with regard to Kate's Law, the
senior Senator from California just said that going overboard and
punishing everyone is not something we should do. This is reprising the
same thing the Democratic leader said--that somehow incarcerating
aggravated felons is punishing everybody.
As the son of an immigrant, I take offense at the suggestion from the
Democratic Party that every immigrant is somehow an aggravated felon.
Incarcerating murderers and rapists is not punishing everybody.
Mrs. FEINSTEIN. Will the Senator allow a question?
Mr. CRUZ. I will be happy to.
Mrs. FEINSTEIN. I don't believe there is anything I said that related
to our letting aggravated murderers and others who would reap great
harm to our society. I do not favor that, and I would like the record
to clearly reflect that.
Mr. CRUZ. I would note the senior Senator from California
characterized Kate's Law--and this is a verbatim quote--as ``going
overboard and punishing everyone.'' Kate's Law is targeted only to
aggravated felons. It is only murderers and rapists and other violent
criminals--those who have committed aggravated felonies and have
reentered the country illegally.
So what the Democratic Party has attempted to do, what the Democratic
leader has attempted to do is to suggest that incarcerating illegal
immigrants who are murderers and rapists is somehow maligning or
impugning immigrants. To the contrary, it is targeting violent
criminals. I do not believe the millions of legal immigrants who
followed the rules, like my father did, are in any way swept into a law
that is targeting aggravated felons.
Aggravated felons is a discreet category. Had Kate's Law passed 5
years ago, Kate Steinle would still be alive today.
Mrs. FEINSTEIN. If I might respond--I think the Senator from Texas is
a member of the Judiciary Committee, I am a member of the Judiciary
Committee, and the chairman of the Judiciary Committee is on the floor.
It is something we ought to take a look at. I haven't reviewed the case
law, I don't think ever on this specific point, and I would like an
opportunity to do so. But what I really bristle to is the extreme
rhetoric and throwing everybody into the same basket as somebody who is
a violent criminal, because the immigrants whom I know in California by
and large are not violent criminals. They are family people. They
sustain the No. 1 agricultural industry in America. They work hard,
they pay their taxes, they get in line for legalization, they are good
citizens, and our economy is better for them, not worse. So I don't
want to impugn everybody, which your broad, sweeping language,
candidly, does.
Mr. CRUZ. With respect, I would note that the only overreaching
rhetoric that has been heard on this floor has come from the Democratic
leader, suggesting somehow that targeting violent criminals is
targeting all immigrants.
It is worth noting that Kate's Law addresses only aggravated felons.
So the suggestion of the senior Senator from California that we should
not assume aggravated felons are criminals is a statement that, on its
face, makes no sense. They are by definition. It is only the violent
criminals--the aggravated felons--that this is targeted to.
I will say I am encouraged, though, that the senior Senator from
California

[[Page S7747]]

stated she would become interested in the Judiciary Committee taking
this up. As she noted, the chairman of the Judiciary Committee is here.
There is unanimous support on the Republican side of the aisle, and it
would truly be significant if the senior Senator from California were
willing to join with Republicans in targeting actual aggravated felons,
which is what Kate's Law does.
The Senator from California says she doesn't want overheated
rhetoric. The rhetoric has been coming from the Democratic side. What I
have been saying is we should not be releasing violent criminal illegal
aliens. That is a commonsense proposition that the overwhelming
majority of the American people agree with.
Let me also make a point about the objection of the senior Senator
from California--for the third time now--to my effort to stand up to
Communist Chinese oppression. It is one thing for Members of this body
to give a good speech, to send a letter, and to put out a press
release. That is something Washington does a lot. It is something we
are really quite good at. It is another thing to act. We should be
acting. We should be leading.
Now, the Senator suggested this would be counterproductive. I would
note that the senior Senator from California did not address the fact
that when we followed the exact same strategy in the 1980s under
President Reagan, with Senator Grassley's leadership, in renaming the
street in front of the Soviet Embassy Sakharov Plaza, it had a very
positive effect. Now, the Soviets didn't like it. They howled mightily.
But the heat and light and attention of world scrutiny helped to change
their behavior and helped to win the Cold War.
To Liu Xiaobo, to Liu Xia, to all the human rights dissidents
imprisoned in China, to the mothers who faced forcible abortions, I
hope my words penetrate the dark prisons in which they are sitting. I
hope my words serve as light and encouragement to each of them.
I think back to when my father and my aunt were in Cuban prisons, and
how much I would have liked leadership in the United States to shine a
light of hope and encouragement.
Some months ago, I met with Natan Sharansky in Jerusalem. He
described how, in the dark of a Soviet gulag, President Ronald Reagan's
words shined into that darkness and prisoners passed from cell to cell:
Did you hear what President Reagan said? Evil empire, ash heap of
history, tear down this wall. Those words, that moral clarity, that
American leadership for human rights changed the world. If we stand
together, we can do the same thing with regard to China.
As much as I hope my words penetrate those cells, I pray the words
and actions of the senior Senator from California do not penetrate
those cells. It saddens me that, in the face of unspeakable brutality
and evil, the Democratic Senator chooses to align herself with the
Communist Party dictators rather than a Nobel Peace laureate.
My hope is that time and reflection will cause the senior Senator
from California to recognize that we should be united in a bipartisan
manner in support of human rights. It is my hope that we stand
together.
I intend to continue to submit this resolution over and over and
over, because every time the light is shined on the grotesque evil of
what China is doing, we are vindicating our values of who we are as
Americans. It is my hope, as I speak out to the Chinese American
citizens in California, in Texas, and across this country, that their
voices are heard by their senior Senator from California, that the
Chinese American citizens ask their senior Senator: Why is it that you
are standing and defending the Communist Government in China for its
human rights abuses?
That is not a question I would want to answer to my constituents whom
I am charged with representing. It is my hope that all of us say:
Listen, we can disagree on all sorts of political matters. We can
disagree on marginal tax rates. But when it comes to forced abortions,
when it comes to imprisoning and mistreating and torturing political
prisoners, including a Nobel Peace laureate, the United States Senate
stands in unanimity, 100 to nothing. That is my hope--that, in time,
truth will prevail.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Before I speak on the main subject for which I came to
the floor, I want to compliment the Senator from Texas for both of the
points he has made about the renaming of the street by the Chinese
Embassy and also for what he has done in regard to Kate's Law today.
Maybe something good has come out of his presentation on the floor,
even though he wasn't able to proceed, in that if there is a real
desire in the Judiciary Committee, which I chair, for a bipartisan
approach to getting mandatory sentences for criminal felons who have
been deported and have come back into the country, so that we don't
have 121 people murdered in the future, as we have had in the last 5
years--because of mandatory sentencing under Kate's Law--I would be
glad to pursue that.
The reason this bill didn't go through the committee in the first
place is that we felt there would be every effort to stop it from
getting out of committee.

Inspector General Empowerment Act

Before I go to my full prepared remarks, I want to tell my colleagues
why we ought to pass the legislation I am going to refer to. I will
summarize by saying that the 1978 inspectors general law says that an
inspector general is entitled to all material he needs in each agency
to do the work that he has to do.
Well, about 3 months ago, probably at the behest of the FBI, a single
person in the Justice Department, in the Office of Legal Counsel,
issued an opinion that said ``all'' doesn't mean all. So that means an
inspector general has to go through a lot of redtape in order to get
the material he or she needs to do their job.
I don't need to tell my colleagues how important inspectors general
are. They are important because they help us do our congressional job
of oversight to ferret out waste, fraud, and mismanagement.
Americans have a right to know when our government is misbehaving or
wasting taxpayer dollars. To ensure accountability and transparency in
government, Congress created inspectors general, sometimes referred to
as IGs, as their eyes and ears within the executive branch.
Those independent watchdogs are uniquely positioned to help Congress
and the public fight waste, fraud, and abuse in government. But IGs
cannot do their job without timely and without independent access to
all agency records. That is why ``all'' means all.
Agencies cannot be trusted to restrict the flow of potentially
embarrassing documents to the IGs who oversee them. Watchdogs need
access to those documents to do their job. They are mandated by law to
keep Congress fully informed about waste, fraud, and abuse problems. If
the agencies can keep IGs in the dark, then this Congress will be kept
in the dark as well. If given the chance, agencies will almost always
choose to hide their problems from scrutiny. In other words, the
public's business that ought to be public sometimes does not become
public and there is less accountability.

Getting back to the 1978 act, when Congress passed this act, we very
explicitly said that IGs should have access to all agency records.
Let's get back to what happened. What happened was one person in the
Department of Justice said that ``all'' doesn't mean all. Does it make
sense to have one person out of the entire bureaucracies of the United
States make a ruling that when Congress says ``all'' means all, all of
a sudden ``all'' doesn't mean all?
If inspectors general deem a document necessary to do their job, then
the agency should turn it over immediately. Inspectors General are
designed to be very independent but also to be a part of the agency.
They are inside so they can see when the laws aren't being followed,
when the money isn't being spent according to law. They are there to
help agency leadership identify and correct waste, fraud, and abuse. I
would hope every agency head appreciates a person whose main
responsibility is to help see that the law is followed.
Fights between an agency and its own inspector general over access to
documents are a waste of time and a

[[Page S7748]]

waste of taxpayers' money. The law of 1978 requires that inspectors
general have access to all agency records precisely to avoid these
costly and time-consuming disputes. However, since 2010 a handful of
agencies--led by the FBI, the law enforcement agency of the U.S.
Government--has refused to comply with this legal obligation that
``all'' means all. Agencies started to withhold documents and argued
that IGs are not entitled to ``all records'' even though that is
exactly what the law says.
In other words, it is pretty simple: ``All'' means all. But on this
island of DC, surrounded by reality, maybe common sense doesn't prevail
and maybe ``all'' doesn't mean all. The law was written to ensure that
agencies cannot pick and choose when to cooperate with the IGs and when
to withhold records. Unfortunately, that is precisely what several
agencies started doing after this single person in the Department of
Justice made this ruling.
The Justice Department claimed that the inspector general could not
access certain records until Department leadership gave them
permission. Requiring prior approval from any agency leadership for
access to agency information undermines the inspector general's
responsibilities and, most often, his independence. That is bad enough,
but it also causes wasteful delays. It effectively thwarts inspector
general oversight. This is exactly the very opposite of the way the law
is supposed to work.
After this access problem came to light, Congress took action. The
2015 Department of Justice Appropriations Act declares that ``no funds
provided in this Act shall be used to deny the Inspector General of the
Department of Justice timely access to all records, documents, and
other materials. . . . ''
The new law also directed the inspector general to report to Congress
within 5 days whenever there was failure to comply with that statutory
requirement. In other words, these people take an oath to uphold the
laws. The law says ``all'' means all, and somehow they can ignore it.
In February alone, the Justice Department's inspector general
notified Congress on three separate occasions in which the FBI failed
to provide access to records requested for oversight investigations.
IGs for the Environmental Protection Agency, for the Department of
Commerce, and for the Peace Corps have experienced similar
stonewalling. Then, in July, the Justice Department's Office of Legal
Counsel released a memo arguing that we did not really mean all records
when we put those words in the law of the United States of America.
That is the one person I am talking about. The Office of Legal Counsel
released this memo that says ``all'' doesn't mean all even though the
law says ``all'' means all. So let me be clear. We meant what we said
in the IG Act: All records really means, pretty simply, all records.
In early August, I chaired a hearing on this opinion and the
devastating impact it is already having on the work of inspectors
general across government. Multiple witnesses described how the opinion
handcuffed inspectors general and brought their important work to a
standstill. In fact, the Internal Revenue Service had already cited the
misguided Office of Legal Counsel opinion in order to justify stiff-
arming its IG access to all records.
Even the Justice Department's witness disagreed--get this--we had a
Justice Department official testify, and that witness disagreed with
the results of the Office of Legal Counsel opinion and directly told us
that we ought to support and initiate legislative action to solve the
problem.
Now, here is a high-level person, above the Office of Legal Counsel,
saying we ought to pass a bill to correct what that agency says had had
an impact that wasn't surmised would happen--that we ought to pass a
bill when they could just withdraw the Office of Legal Counsel ruling.
As a result of that testimony, following that hearing, 11 of my
colleagues and I sent a bipartisan, bicameral letter to the Department
of Justice and to the inspector general community of the various
agencies. In that letter, the chair and ranking member of the
committees of jurisdiction in both the House and Senate asked for
specific legislative language to reaffirm that ``all'' means all for
all inspectors general, every one of them.
It took the Justice Department 3 months to respond to that letter for
the very same thing they had testified about--that we ought to pass a
law to do it, and we asked them for their help. The language it
provided, however, fails to address the negative effects the Office of
Legal Counsel's opinion is already having on the ability of IGs to
access their agency records all across government. However, the
inspector general community throughout our bureaucracy responded to our
letter within 2 weeks and provided language that is actually responsive
to our request.
In September, a bipartisan group of Senators and I incorporated the
core of this language in S. 579, called the Inspector General
Empowerment Act of 2015--a bill we shouldn't even have to pass, if
Justice would just withdraw this Office of Legal Counsel opinion that
causes this problem in the first place.
Specifically, I was joined in this effort on this bill by 11 other
Members, including Senators McCaskill, Carper, Baldwin, and Mikulski.
Senator Mikulski serves as vice chair of both the Appropriations
Committee and the subcommittee which has jurisdiction over
appropriations for the Justice Department. She and Chairman Shelby were
the authors of the appropriations rider I recently spoke about.
In July, 1 week after the Office of Legal Counsel issued its awful
legal opinion, Senators Mikulski and Shelby sent a letter to the
Justice Department correcting the Office of Legal Counsel's misreading
of that appropriations rider, also known as section 218. I will read a
few excerpts from that letter from the two highest people on the
Appropriations Committee, who are in a pretty good position to tell
these bureaucrats where to go and particularly where to go when the law
is very clear and the Appropriations Committee is very clear that some
opinion by the Office of Legal Counsel isn't even justified. Quote:

We write to inform you that Office of Legal Counsel's
interpretation of Section 218--and the subsequent conclusion
of our Committee's intention--is wrong.
Surmising that multiple interpretations of section 218
created uncertainty, Office of Legal Counsel chose one of the
three rationales that most suited its own decision to
withhold information from the Office of Inspector General.
This conclusion was not consistent with the Committee's
intention at all. Rather, the Committee had only one goal in
drafting section 218. . . . to improve OIG access to
Department documents and information.
We expect the Department and all of its agencies to fully
comply with section 218, and to provide the Office of
Inspector General with full and immediate access to all
records, documents, and other material in accordance with
section 6(a) of the Inspector General Act. End Quote.

So there we have the appropriators saying what our bill is trying to
do, saying that it is wrong for one person in the Office of Legal
Counsel to overturn 30 years of law that we have had in the inspector
general's office.
I applaud my colleagues on this very important Appropriations
Committee for standing up for inspectors general, and I applaud my
colleagues who have joined me in sponsoring the legislation entitled
The Inspector General Empowerment Act of 2015.
I especially thank Senators Johnson and McCaskill for working with me
on this legislation from the very beginning and for their work in
getting this bill through their committee. Apparently the plain
language of the IG Act and the 2015 appropriations rider was somehow
not clear enough for the Office of Legal Counsel to understand, so the
Inspector General Empowerment Act includes further clarification that
Congress intended IGs to access all agency records--and these next
words are very important--notwithstanding any other provision of law
unless other laws specifically state that the IGs are not to receive
such access.
This ``notwithstanding any other provision of law'' language is what
the OLC opinion indicates would be necessary before OLC would believe
that Congress really means to ensure access to all records. But
overturning an OLC opinion that was roundly criticized by both sides of
the aisle is just the beginning. In addition, the legislation also
bolsters IG independence by preventing agency heads from placing them
on arbitrary and indefinite administrative leave.
The bill would also promote greater transparency by requiring IGs to
post

[[Page S7749]]

more of their reports online. The bill would increase accountability by
equipping IGs with tools to require testimony from contractors,
grantees, and other employees who have retired from the Government,
often while under investigation by an IG.
In September, we attempted to pass this bill via unanimous consent.
It has been more than a month since the leadership asked whether any
Senator would object. Not one Senator has put a statement in the Record
or come to the floor to object publicly. At the August Judiciary
Committee hearing, there was a clear consensus that Congress needed to
act legislatively and needed to overturn the Office of Legal Counsel
opinion as quickly as possible.
Senator Cornyn noted that the Office of Legal Counsel opinion is
``ignoring the mandate of Congress'' and undermining the oversight
authority that Congress has under the Constitution.
Senator Leahy said that this access problem is ``blocking what was
once a free flow of information'' and called for a permanent
legislative solution.
Senator Tillis stated that the need to fix this access problem was
``a blinding flash of the obvious'' and that ``we all seem to be in
violent agreement that we need to correct this.''
However, some have raised concerns about guaranteeing IG access to
certain national security information. I wish to explain why this bill
should not be held up for that reason.
First, this bill is cosponsored by a bipartisan group of Senators,
including Democrats and Republicans on the Intelligence Committee.
These people know something about the protection of national security.
These Senators are Senator Mikulski, Senator Lankford, and Senator
Collins.
Second, the inspector general of the intelligence community supports
the bill.
Third, the bill would not affect intelligence agencies under title
50, such as the CIA and the Office of the Director of National
Intelligence.
Fourth, the Executive orders restricting and controlling classified
information are issued under the President's constitutional authority.
This bill does not in any way attempt to limit that constitutional
authority at all. It clarifies that no law can prevent an IG from
obtaining documents from the agency it oversees unless the statute
explicitly states that IG access should be restricted. No one thinks
this statute could supersede the President's constitutional authority.
Fifth, there is already a provision in the law that allows the
Secretary of Defense and the Director of National Intelligence to halt
an inspector general review to protect vital national security
interests.
Nothing in the bill would change that already existing carve-out for
the intelligence community. All IGs should have the same level of
access to records that their agencies have, and all IGs are subject to
the same restrictions and penalties for disclosure of classified
information. No inspector general's office has ever violated those
restrictions. They have an unblemished record of protecting national
security information.
If there are changes that can be made to the bill so that it can pass
by unanimous consent, I am ready to consider those. However, any
changes or carve-outs for the intelligence community should not impact
other IGs. The point of the bill is to overturn the Office of Legal
Counsel opinion and restore complete, timely, and independent access
for IGs to agency records. That goal must be preserved.
We all lose when inspectors general are delayed or prevented in doing
their work. Every day that goes by without a fix is another day that
watchdogs across the Government can be stonewalled. I urge my
colleagues to support this bill.
Finally, I ask unanimous consent to have printed in the Record
letters that I mentioned earlier and a letter I received from the
inspector general community today showing why the Department of
Justice's proposed language is insufficient to solve the problem at
hand. I also ask unanimous consent to have printed in the Record an op-
ed that was recently published in the Washington Post in support of
this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Committee on Appropriations,

Washington, DC, July 30, 2015.
Hon. Sally Quillian Yates,
Deputy Attorney General, U.S. Department of Justice,
Washington, DC.
Dear Deputy Attorney General Yates: This letter is in
response to the Department's Office of Legal Counsel's (OLC)
memorandum dated July 20, 2015, that provides a legal opinion
on the Office of Inspector General's (OIG) access to
sensitive information throughout the Department. On July 23,
2015, the Department provided our Committee with a copy of
the memo, which includes an opinion on Division B, section
218 of the Consolidated and Further Continuing Appropriations
Act of 2015 (Public Law 113-235). We write to inform you that
OLC's interpretation of section 218--and the subsequent
conclusion of our Committee's intention--is wrong.
Specifically, OLC erroneously speculated that section 218
held one of three possible interpretations, one of which
included the supposed conclusion that Congress intended to
permit the Department to withhold information from the OIG.
Surmising that multiple interpretations of section 218
created uncertainty, OLC chose one of the three rationales
that most suited its own decision to continue to withhold
information from the OIG.
This conclusion was not consistent with the Committee's
intentions at all. Rather, the Committee had only one goal in
drafting section 218; therefore, there is only one correct
conclusion. As the explanatory statement accompanying the
fiscal year 2015 bill simply states, ``The Inspector General
shall report to the Committees on Appropriations not later
than 180 days after the date of enactment of this Act on the
impact of section 218 of this Act, which is designed to
improve OIG access to Department documents and information,''
Throughout this ongoing dispute between the Department and
the OIG about access to information, the Senate Committee on
Appropriations has shown clear concerns about the frequency
and abundance of material that the Department has chosen to
withhold from the OIG. In addition to the fiscal year 2015
language, the Committee raised concerns with the Attorney
General during a fiscal year 2016 hearing, which occurred
well in advance of OLC issuing its recent opinion. For OLC to
determine our intentions as anything other than supporting
the OIG's legal right to gain full access to timely and
complete information is disconcerting.
While the issue of the Inspector General's access to
information covers many areas of the law, and OLC's memo is
equally expansive on the matter, we feel compelled to set the
record straight regarding section 218. We were not contacted
by OLC to solicit our feedback in the formulation of their
memo to you. However, should you or anyone in the Department
request further information about this section or any other
areas of our fiscal year 2015 spending bill, we, and our
staff will be glad to assist.
Regardless, we expect the Department and all of its
agencies to fully comply with section 218, and to provide the
OIG with full and immediate access to all records, documents
and other material in accordance with section 6(a) of the
Inspector General Act.
Sincerely,
Richard C. Shelby,
Chairman, Senate Subcommittee on Commerce, Justice, Science
and Related Agencies.
Barbara A. Mikulski,
Vice Chairwoman, Senate Subcommittee on Commerce, Justice,
Science and Related Agencies.
____

Congress of the United States,

Washington, DC, August 13, 2015.
Hon. Sally Quillian Yates,
Deputy Attorney General, U.S. Department of Justice,
Washington, DC.
Hon. Michael Horowitz,
Inspector General, U.S. Department of Justice, Washington,
DC.
Dear Deputy Attorney General Yates and Inspector General
Horowitz: Last month, the Department of Justice (DOJ) made
public an Office of Legal Counsel (OLC) opinion that allows
DOJ to withhold access to certain records sought by DOJ's
Office of Inspector General. Under the OLC opinion, and
subsequent guidance provided by the Office of the Deputy
Attorney General, the DOJ Inspector General must now obtain
agency permission to access certain documents related to
grand jury testimony, Title III wiretaps, and the Fair Credit
Reporting Act. This opinion undermines the long-standing
presumption that Inspectors General have access to any and
all information that they deem necessary for effective
oversight, as specified in the Inspector General Act of 1978.
On August 5, 2015, the Senate Judiciary Committee convened
a hearing entitled, `` `All' Means `All': The Justice
Department's Failure to Comply with Its Legal Obligation to
Ensure Inspector General Access to All Records Needed for
Independent Oversight.'' This hearing brought to light
serious questions about the effect the OLC opinion would have
on the independence and effectiveness of the Office of
Inspector General, not just at the Department of Justice but
also across

[[Page S7750]]

the federal government. The opinion has already been relied
on by other federal agencies to prevent their Inspectors
General complete and timely access to documents necessary to
conduct audits and investigations. It is apparent that
Congress needs to act to ensure that Inspectors General have
complete and immediate access to all records in the
possession of their respective agencies, unless a statute
restricting access to documents expressly states that the
provision applies to Inspectors General.
We understand the Office of the Deputy Attorney General and
the Office of Inspector General have been working
collaboratively on legislative language to address this
issue. Accordingly, by no later than August 28, 2015, please
provide your recommended legislative language that would
ensure Inspectors General have access to all Department
records, notwithstanding limitations contained in any of the
potentially hundreds of provisions of law or any common-law
privilege that might otherwise arguably limit such
disclosure.
Thank you for your immediate attention to this matter.
Sincerely,
Charles E. Grassley, Chairman, U.S. Senate Committee on
the Judiciary; Patrick Leahy, Ranking Member, U.S.
Senate Committee on the Judiciary; Ron Johnson,
Chairman, U.S. Senate Committee on Homeland Security
and Governmental Affairs; Tom Carper, Ranking Member,
U.S. Senate Committee on Homeland Security and
Governmental Affairs; Bob Goodlatte, Chairman, U.S.
House of Representatives, Committee on the Judiciary;
John Conyers, Ranking Member, U.S. House of
Representatives, Committee on the Judiciary; Jason
Chaffetz, Chairman, U.S. House of Representatives,
Committee on Oversight and Government Reform; Elijah
Cummings, Ranking Member, U.S. House of
Representatives, Committee on Oversight and Government
Reform; John Cornyn, U.S. Senate Committee on the
Judiciary; Claire McCaskill, U.S. Senate Committee on
Homeland Security and Governmental Affairs; Thom
Tillis, U.S. Senate Committee on the Judiciary; Amy
Klobuchar, U.S. Senate Committee on the Judiciary.
____

Council of the Inspectors General on Integrity and
Efficiency,
November 4, 2015.
Hon. Charles E. Grassley,
Chairman, U.S. Senate Committee on the Judiciary.
Hon. Ron Johnson,
Chairman, U.S. Senate Committee on Homeland Security and
Governmental Affairs.
Hon. Bob Goodlatte,
Chairman, U.S. House of Representatives Committee on the
Judiciary.
Hon. Jason Chaffetz,
Chairman, U.S. House of Representatives Committee on
Oversight and Government Reform.
Hon. John Cornyn,
U.S. Senate Committee on the Judiciary.
Hon. Thom Tillis,
U.S. Senate Committee on the Judiciary.
Hon. Patrick Leahy,
Ranking Member, U.S. Senate Committee on the Judiciary.
Hon. Tom Carper,
Ranking Member, U.S. Senate Committee on Homeland Security
and Governmental Affairs.
Hon. John Conyers,
Ranking Member, U.S. House of Representatives Committee on
the Judiciary.
Hon. Elijah Cummings,
Ranking Member, U.S. House of Representatives Committee on
Oversight and Government Reform.
Hon. Claire McCaskill,
U.S. Senate Committee on Homeland Security and Governmental
Affairs.
Hon. Amy Klobuchar,
U.S. Senate Committee on the Judiciary.
Dear Chairmen, Ranking Members, and distinguished Senators:
On behalf of the Council of the Inspectors General on
Integrity and Efficiency (CIGIE), we write to express our
strong opposition to the proposal of the Department of
Justice (DOJ), sent to you in a letter dated November 3,
2015. The DOJ proposal would amend Section 8E of the
Inspector General Act of 1978 (5 U.S.C. App.) in response to
the July 2015 opinion of the DOJ's Office of Legal Counsel
(OLC). While the DOJ agrees with CIGIE that legislation is
needed and should be passed by Congress to reverse the impact
of the OLC opinion, the DOJ's proposal only applies to the
DOJ Inspector General's access to records and fails to ensure
that all other federal Inspectors General have the same
independent access at their respective agencies. As such,
DOJ's proposed legislative language is not acceptable.
Effective and independent oversight is the mission of all
Inspectors General and, therefore, all Inspectors General
require timely and independent access to agency information
necessary to carry out that responsibility. This is a bedrock
principle of the IG Act.
Three months ago, an OLC opinion determined that the words
``all records'' in Section 6(a) of the IG Act does not mean
``all records'' and therefore the IG Act did not give the DOJ
IG independent access to all records in the DOJ's possession
that are necessary to perform its oversight work. Section
6(a) is the cornerstone of the IG Act for federal Inspectors
General, and an opinion that undercuts its broad access
provision places our collective ability to have timely and
independent access to agency records and information at risk.
Yet the DOJ's proposal would restore access authority to only
one Office of Inspector General. The DOJ's proposal is
clearly inadequate and would leave in place a threat to the
independence of all other Offices of Inspector General.
Indeed, we have seen the impact of this threat at both the
Peace Corps and the Commerce Department. Inspectors General
at both agencies have faced claims by their agency's counsel
that they are not entitled to access all records in their
agency's possession.
We urge you and your colleagues to reject the DOJ's
proposal and proceed with the bipartisan substitute amendment
to Senate bill S. 579, the ``Inspector General Empowerment
Act of 2015.'' This bill amends Section 6 of the IG Act and
makes clear that no law or provision restricting access to
information applies to any applicable IG unless Congress
expressly so states, and that such IG access extends to ``all
records'' available to the agency. This is the only way to
effectively restore to all IGs the independence that has been
the lynchpin to our success for more than 35 years, and
ensure that we can continue to conduct effective oversight on
behalf of the American people.
Sincerely,
Michael E. Horowitz,
Inspector General, U.S. Department of Justice; Chair,
CIGIE.
Kathy A. Buller,
Inspector General, The Peace Corps; Chair, CIGIE
Legislation Committee.
____

[From the Washington Post, Oct. 31, 2015]

Let Inspectors General Do Their Jobs

(By Editorial Board)

A few years ago, the Justice Department's Office of
Inspector General was looking into how the department had
handled people detained as material witnesses after the 9/11
attacks. There had been complaints that civil liberties were
abused in some detentions. The inspector general made a
request for documents from the FBI that included grand jury
testimony by those detained--and hit a roadblock. In 2010,
the FBI refused to turn over the documents.
The Justice Department inspector general, Michael E.
Horowitz, has pointed to this refusal in appealing to
Congress to rectify a larger problem: Not only at Justice but
in other agencies, inspectors general are coming up against
hurdles to their independent investigations created by the
very departments they are supposed to keep an eye on.
Inspectors general, created by a 1976 law to be independent
watchdogs over government, are finding it increasingly
difficult to carry out their vital mission.
The original law said that inspectors general must have
access to ``all records, reports, audits, reviews, documents,
papers, recommendations or other material available'' for
their work. But the ``all'' in this language has been thrown
into doubt by the FBI's actions and by a subsequent opinion
by the department's Office of Legal Counsel, which suggested
that, in certain conditions, the inspector general should not
get ``all.'' According to Mr. Horowitz, every time he was
blocked, he turned to the attorney general or deputy attorney
general and asked for an override, which they provided. But
the result has been significant delays in the investigations,
including the probe into the use of the material witness
statute and another looking at Operation Fast and Furious,
the failed weapons sting operation. Mr. Horowitz has pointed
out that such objections to the release of documents for
investigations were not raised for many years after the
creation of his office, only beginning in 2010.
The inspector general should not have to pester the
attorney general for access that is already provided in the
law. As Mr. Horowitz argued recently in these pages, such
foot-dragging turns statutory language on its head, so that
the words ``all records'' do not mean all. This is
``fundamentally inconsistent with the independence that is
necessary for effective and credible oversight,''

[[Page S7751]]

he wrote. In August 2014, 47 inspectors general told Congress
that such roadblocks to independent probes had cropped up
elsewhere, too, including at the Environmental Protection
Agency and the Peace Corps. They said withholding documents
``risks leaving the agencies insulated from scrutiny and
unacceptably vulnerable to mismanagement and misconduct.''
Legislation pending in both chambers of Congress would
clarify this by making clear that all records mean all
records--and that inspectors general remain an important
mechanism of accountability and oversight. The legislation
has bipartisan support and deserves to be passed.

Mr. GRASSLEY. Mr. President, I see Senator Johnson on the floor. I
thank him very much for his leadership in this area.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. JOHNSON. Mr. President, I rise today to urge passage of S. 579,
the Inspector General Empowerment Act of 2015. I want to thank my
friend, Senator Grassley, who just spoke, for his work on this bill and
for his longstanding commitment and dedicated promotion of
accountability and transparency for efficient government.
It is an unfortunate reality that the executive branch today is more
powerful, more expansive, and less transparent than it has ever been.
Senator Grassley and I are privileged to be the chairmen of committees
that have expansive authorities and responsibilities to oversee the
executive branch and all of its programs. But we need help in our
efforts.
We are fortunate that Congress in 1978 created crucial partners for
us: independent watchdogs embedded in each agency, accountable only to
Congress and the American people. They are the American people's eyes
and ears, and they are our best partner in rooting out waste, fraud,
and abuse of taxpayers' hard-earned money.
This bill is about increasing agency accountability and transparency.
It exempts IGs from time-consuming and independence-threatening
requirements such as the computer matching and paperwork reduction
statutes.
The bill also allows inspectors general, in limited circumstances, to
compel the testimony of former agency employees or Federal contractors
whose information they need to pursue cases of fraud and abuse. But the
bill also ensures that inspectors general are made accountable to the
public and to Congress.
Earlier this year, I issued a subpoena to the inspector general of
the Department of Veterans Affairs, in part to produce the over 100
reports the inspector general had completed but not made public. One
report that the VA inspector general kept from the public was a report
on dangerous overprescription of opiates at the Tomah VA Medical Center
in Tomah, WI--practices that resulted in the death of at least one
Wisconsin veteran.
This is how important transparency is. The daughter of the Wisconsin
veteran who died from substandard care at that facility told me that
had she known about the practices at the facility--in other words, if
the report had been made public--she never would have taken her father
there, and he could be alive today.
I want that to sink in. The bottom line is transparency and
accountability in government can literally be a matter of life and
death. The VA inspector general is not the only offender. In 2013 the
Department of Interior Office of Inspector General closed over 400
investigations but released only 3 of those to the public. This should
not happen. The public deserves transparency and accountability.
An amendment that I offered in committee, and that was accepted
unanimously, requires inspectors general to publicly post their work on
their Web site within 3 days of providing the final report to the
agency. So this bill will ensure that findings of misconduct, waste,
and fraud are exposed to the public and to Congress.
The public also deserves an inspector general that is independent.
One of the greatest threats to inspector general independence is when
the President fails to nominate a permanent inspector general and
leaves an acting IG in place who wants the permanent job.
In 2014, when I was ranking member of the Financial and Contracting
Oversight Subcommittee, we found that the former acting inspector
general for the Department of Homeland Security, Charles Edwards, was
compromised because of his desire to curry favor with the
administration to get the permanent inspector general's job. We found
he changed and delayed findings of reports to protect senior officials.
That type of behavior is completely unacceptable.
In addition to using our powers as Members of Congress to call upon
the President to nominate permanent inspectors general, as I have done
for the Veterans Administration, this bill requires an independent
study of problems with acting IGs and recommends ways to address them.
We know that many agencies are not in the business of transparency,
and they often try to restrict their inspector general's work. As
Senator Grassley already explained so well, we shouldn't have to
clarify what was meant when we said IGs shall have access to all their
agency's documents so they can do their work. Nonetheless, this bill
will make it even clearer that ``all'' really does mean all.
This is a bipartisan cause. We want all inspectors general to be able
to do their jobs well. That is why the substitute amendment I filed in
September has 11 bipartisan cosponsors, spanning members of my
committee, the Committee on Homeland Security and Governmental Affairs,
the Judiciary Committee, the Armed Services Committee, and the
Intelligence Committee.
I want to thank my ranking member, Senator Tom Carper, for his
support and the other cosponsors for their assistance in getting this
bill passed. I urge my colleagues to support S. 579 and to support the
work our IG partners do every day to try to keep our Nation safe, our
agencies accountable, and our taxpayer dollars spent efficiently.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.

Justice For Former American Hostages In Iran Act

Mr. ISAKSON. Mr. President, 36 years ago today, 53 Americans in the
American Embassy in Tehran were captured, beaten, held hostage, and
tortured. As I speak on the floor of the Senate today, in the streets
of downtown Tehran, Iranian people are marching in the streets, burning
American flags, yelling ``Death to America'' and celebrating the
capture of our citizens 36 years ago today.
From the moment of their release in January of 1981, they have been
promised justice and compensation. But 5 administrations and 17
Congresses have gone by, and there has been no justice and there has
been no compensation. Unfortunately, cynicism has set in, and the
remaining 38 of the 53 who were originally held hostage wonder when
their justice is coming.
Many have suffered. One, a former CIA agent, committed suicide.
Another attempted suicide but failed. Many families have been torn
apart and asunder by PTSD and other ramifications of torture and
capture. It is a sad chapter in the history of our country, at the
hands of a tyrannical dictatorship in the nation of Iran. But don't
just take my word for it. Let me read you the words of two American
citizens who were taken hostage in Tehran 36 years ago.
William Daugherty from Savannah, GA, said the following:

I'd like to remind the Congress that the corporations and
banks have long ago received their ``compensation'' in
whatever form it took. I'd like to remind the Congress that
the Carter administration intended for us to be compensated.
They told us we would be, and today it's pretty much now or
never for many of us.

Their lives are passing.
Or there is Joe Hall of Lenox, GA, who told me:

35 years after our release from confinement, one fourth of
our group has passed away. Those who remain are aging,
ailing, and frustrated. Yet, they remain loyal, law-abiding,
and patriotic; the very characteristics they took to Iran
when they [were captured and] stepped forward to serve their
country, so many years ago.

Still there is no justice, still no reward.
Four years ago I introduced the Iranian Hostage Compensation Act. To
this date, it has been supported by every Member of the Senate and
House who I have talked to. Minority Leader Harry Reid came to me the
other day seeking help to make sure we get this bill passed. Ben
Cardin, the ranking member of the Foreign Relations Committee, Bob
Corker, the chairman of

[[Page S7752]]

the Foreign Relations Committee, the members of the House Foreign
Relations Committee--everyone I have talked to has said: Yes, it is
right for us to do this. The money is in the bank in the control of the
Department of Justice--Iranian money that is available to pay the
hostages the compensation they deserve. The amounts have been
negotiated--$6,750 per hostage per day of captivity. They are the only
American hostages ever held captured and never been recompensed for the
tragedy they suffered.
It is time for America to act now. While the Iranians celebrate in
the streets and burn our flag and say ``Death to America,'' we should
say to the survivors of the Iranian hostage crisis: We are going to see
to it that you get the compensation and the justice you deserve.
In the weeks ahead before this year ends, I will talk to each Member
of the Senate and to each Member of the House to find a way--whatever
way we can and whatever vehicle is necessary--to get that authorization
out of Congress and in the hands of the Justice Department and the
administration so each and every one of those survivors can be
compensated because they deserve it. They risked their lives for the
United States of America just as every State Department employee and
every Ambassador does around the world. We never need the State
Department employees or our Ambassadors to think that one day America
might look the other way if they are ever captured or taken hostage.
I appeal to my colleagues in the Senate and the House and to all the
people in the United States of America to come together and see to it
that those remaining hostages who have survived so far are compensated
for the horror and the terror they endured. While the Iranians
celebrate the capture and the horror they administered to their victims
in the streets, let's do what we as Congressmen and as Members of the
Senate came here to do and see to it that they get their justice and
compensation and that we do what America always does: stand by our
citizens who went in harm's way to protect our country.
I yield back the remainder of my time and suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr. Scott). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Religious Liberty In America

Mr. HATCH. Mr. President, freedom of religion is one of the
foundational principles of the Republic. It has long been central to
our identity as a self-governing people, and as a cause, it has long
enjoyed wide support across partisan and ideological divides for
generations.
Recently, however, religious liberty has come under coordinated
assault by those who would hastily discard one of our founding
principles to serve a narrow, transient political agenda. Given how
defending religious liberty has been one of the animating goals in my
public life, I feel compelled to speak out against this disturbing
development.
Since the end of the August recess, I have endeavored to speak
regularly on the subject to remind my colleagues of the need to
maintain our historic allegiance to this most American of values. So
far, I have addressed the first principles of why we should protect
religious freedom, as well as the legal and political history of the
concept. Today I aim to address the role of religion in public life and
its critical contribution to the preservation of freedom of religion.
One particular phrase has come to describe the relationship between
faith and public life in this country: ``the separation of church and
state.'' Over the years, the invocation of this phrase has become so
rote that many consider it axiomatic. While the phrase itself is quite
terse, it has become shorthand for a particular narrative about the
history and status of religion in American life. This narrative traces
back to Thomas Jefferson, who famously advocated for a ``wall of
separation between church and state.'' Under Jefferson's leadership,
Virginia passed the Law for the Establishment of Religious Freedom in
1786, which aimed to end state prescription and proscription of any
particular religion.
Anchored in a cursory reference to Jefferson, generations of
Americans have been brought up to believe that our founding principles
demand that faith be driven out of government and kept contained to a
private sphere with no role in public life and no semblance of
interaction with the state. This narrative is flatly inconsistent with
our history and our Constitution. Put plainly, the Jeffersonian model
of strict separation was a novel experiment that constituted a
decidedly minority viewpoint in the early Republic.
The dominant model at the time was embodied by the 1780 Massachusetts
Constitution drafted by John Adams, which largely protected religious
liberty but also instituted a ``mild and equitable establishment of
religion'' that enshrined Christian piety and virtue. In Adams' view,
as articulated by one scholar, ``Every polity must establish by law
some form of public religion, some image and ideal of itself, some
common values and beliefs to undergird and support the plurality of
protected private religions. The notion that a state could remain
neutral and purged of any public religion was [neither realistic nor
desirable].''
Jefferson himself acknowledged that the statute he crafted in
Virginia was a ``novel experiment'' that broke with practice not only
in the American colonies but also in the United Kingdom and the wider
Western world.
At the outbreak of the Revolution, the Anglican Church enjoyed
official established status in Georgia, Maryland, North Carolina, South
Carolina, Virginia, as well as in the New York City area. In
Connecticut, Massachusetts, and New Hampshire, the system of municipal
government empowered individual towns to choose a church to establish,
resulting in Congregationalism as the established religion throughout
most of New England. Only Delaware, New Jersey, Pennsylvania, and Rhode
Island lacked officially established churches. Nevertheless, even these
states without officially established churches--including famous havens
for religious dissenters, such as Pennsylvania and Rhode Island--
maintained significant ties between church and state, including in
matters of church finances, religious tests for public office, and
blasphemy laws.
While the Revolution brought about a number of new state
constitutions that officially disestablished a number of state
churches--particularly the Church of England after the severing of
political ties to the Crown--the advent of the new Republic did not
bring about universal disestablishment or adherence to the model of
strict separation.
At the time of the adoption of the First Amendment in 1791, about
half--depending on one's exact definition--of the 14 States then
admitted to the Union had an established church or allowed municipal
governments to establish such a church. Moreover, every single state
sponsored or supported one or more churches at the time. In the words
of Notre Dame's Gerard Bradley, even ``Rhode Island, that polar star of
religious liberty, maintained'' what would today constitute ``an
establishment at the time it ratified the First Amendment.''
My purpose for bringing up this history is not to advocate for states
to return to the era of officially established churches or to advocate
for any of the restrictive measures of that time. Indeed, as a Mormon,
I am keenly aware both of how the machinery of government can be used
to oppress religious minorities and of how a faith's flourishing comes
not from the State's sanction or promotion but rather from the
dedication and devotion of individuals, families, and communities.
Instead, my purpose is to note the plain incongruity between the
conventional wisdom of rigid separation between church and state
supposedly commanded since the founding by the establishment clause and
the actual history of religion in public life in the days of the early
Republic.
This apparent disconnect can be resolved by an examination of the
text of the Constitution. The text of the First Amendment reads:
``Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.'' Note the exact formulation:
``Congress shall make no law regarding the establishment of religion. .
. .'' On its face, the language

[[Page S7753]]

affects only one actor--Congress--not States and local governments and
not individual citizens. Put another way, at the time of its adoption,
the First Amendment neither created an individual right to be free from
religion nor limited the power of the States to establish religion; it
simply created a structural limit on Federal power.
The debates over the ratification of the Bill of Rights confirmed
this interpretation. As a general matter, the Establishment Clause
received relatively little attention in the ratification debates in the
state legislatures and among the public. Indeed, it hardly seems
tenable that States would have adopted a measure at odds with their
ongoing practices with little discussion or dispute. What attention the
establishment clause did receive made it clear that its language was
intended to prevent the Federal Government from choosing a preferred
religious secret--a logical move befitting a new nation made up of
states with a wide variety of religious traditions and approaches to
established religion.
Furthermore, the ratification debates clarify that the ratifiers
viewed official establishment of a particular church as direct
financial support for a preferred sect, wholly distinct from the
nondiscriminatory support and establishment of religion in general,
which the Establishment Clause was not thought to limit.
For a century and a half, this misunderstanding of the Establishment
Clause endured with little challenge. Before the Civil War, the Supreme
Court decided only three Establishment Clause cases of any
significance. Indeed, the major debate on the subject during the
intervening years revolved around a proposed change to the
Constitution: the 1875 Blaine amendment that sought to extend the
application of the Establishment Clause to the states and to ban
explicitly any church's access to public funds. This legislative
effort, borne largely out of anti-Catholic prejudice, failed--a failure
that further underscored the settled nature of the Establishment Clause
at that time.
Unfortunately, religion was not spared from the destructive judicial
activism of a Supreme Court that spun wildly out of control in the mid-
20th century. A new crop of justices, disinclined to follow the
traditional judicial role of applying the law as written, instead
sought to remake the law according to their left-wing worldview. From
inventing new rights for criminals to mandating nearly unlimited access
to abortion on demand, the Court in this period left few stones
unturned in its radical rewriting of the Constitution.
The longstanding understanding of the Establishment Clause was one of
the mid-century Court's first victims. Abandoning the understanding of
the clause I have previously detailed--an understanding that was
clearly supported by text, structure, history, and precedent--the Court
turned the Establishment Clause on its head.
In the error-filled words of Justice Black, the Court said in Everson
v. Board of Education that ``the establishment of religion clause of
the First Amendment means at least this: Neither a State nor the
Federal Government can set up a church. Neither can pass laws which aid
one religion, aid all religions, or prefer one religion over another.''
This pronouncement had no basis in text, history, or law. To the
contrary, it was diametrically opposed to the understanding of the
relationship between government and religion and between the federal
government and the states that had endured for much of America's
history. Justice Black justified the Court's entirely novel,
ahistorical view by turning to Jefferson: ``In the words of Jefferson,
the clause against establishment of religion by law was intended to
erect a wall of separation between church and state.'' Thus was born
the now-commonplace view that the establishment clause was meant to
create a high wall separating church and state.
This decision represents a complete inversion of the previously
settled, proper understanding of the establishment clause. The command
that Congress should make no law regarding an establishment provision
is turned from a structural protection against federal power into an
individual right to be free from religion. The text protecting the
states' power to decide whether and what church to establish is, in the
words of one scholar, paradoxically and perversely transformed into a
limitation on states' authority to make such a decision. The critical
distinction between official establishment of a particular church and
general support of religion without regard to particular sects is
casually discarded in favor of a blanket prohibition on religious
involvement in public life. In the words of two scholars, throughout
its decision, the Court ``not only ascribed to the establishment clause
separationist content; it imagined a past to confirm that
interpretation. Both majority and dissent treated the history of the
United States as if it were the history of Virginia. Despite
dissimilarity of language, the justices equated the establishment
clause with Virginia's statute on religious freedom, thereby
appropriating for the federal provision the separationist message and
rhetoric of the state enactment.''
As I have explained, the history of Virginia on the subject of state
establishment of religion is not the history of the United States.
Rather, Virginia was, as Jefferson said, a ``novel experiment'' on the
issue. Other states continued to support state-established churches.
The wall-of-separation doctrine, which the Court created out of whole
cloth in Everson, was not the American tradition. It was an
idiosyncrasy of Jefferson's.
Upon this fundamentally flawed foundation, the federal courts have
constructed a jurisprudence that threatens any place for religion in
the public sphere. Embracing the demonstrably false notion that ``the
three main evils against which the establishment clause was intended to
afford protection [were] sponsorship, financial support, and active
involvement of the sovereign and religious activity,'' the Supreme
Court soon adopted the so-called Lemon test for any law to withstand:
``First, the statute must have a secular legislative purpose; second,
its principal or primary effect must be one that neither advances nor
inhibits religion . . . finally, the statute must not foster an
excessive government entanglement with religion.''
In announcing this test, the Supreme Court sounded the note of
modesty, noting that the justices could ``only dimly perceive the lines
of demarcation in this extraordinarily sensitive area of Constitutional
law.'' This admission--though ironic, given the Court's ambition to
complete the transformation of the establishment clause away from its
historical and textual foundation--was, if anything, an understatement.
The Court's efforts to draw a line between the permissible and the
impermissible have completely failed. Justice Rehnquist rightly
diagnosed the cause of these bizarre results:
These difficulties arise because the Lemon test has no more grounding
in the history of the First Amendment than does the wall theory upon
which it rests. The . . . test represents a determined effort to craft
a workable rule from a historically faulty doctrine; but the rule can
only be as sound as the doctrine it attempts to service.
The Court has responded to these acknowledged difficulties not by
abandoning its flawed establishment clause jurisprudence but by
inventing new tests while never overturning Lemon or the flawed
understanding that undergirds it. By one scholar's estimation, the
Supreme Court has employed 9 alternate tests of impermissible
establishment of religion; another scholar identified 16. While the
exact count understandably varies, the result is the same: muddled law
that lacks any principled means of application. This lack of clarity
enables judicial activism. By liberating the judiciary from the
obligation to apply a clear rule, this muddied framework invites judges
and justices to implement their own policy views as law.
While this framework shows confusion in marginal cases, its overall
effect is clear: to squeeze religion out of government and to deny
religious organizations the opportunities afforded to secular
counterparts. While the addition of principled jurists to the Court has
turned momentum against previous excesses, the thrust of the Court's
misguided establishment clause jurisprudence remains dominant.
The Court's flawed wall-of-separation jurisprudence has kept religion
out of the public square and fed the idea that

[[Page S7754]]

religion is a private matter to be practiced within the confines of
one's church or home. Legal and social pressures have taken their toll,
and the results are stark: no prayer in school; no new Ten Commandments
displays--or even Christmas or Hanukkah displays--unless carefully
secularized; a widespread prejudice in many quarters against public
officials talking about God or about their beliefs in public; and even
the crusade every December to replace the phrase ``Merry Christmas''
with ``Happy Holidays.''
The conventional wisdom peddled by advocates for stringent exclusion
of religion from the public sphere is that aggressive enforcement of
their vision of the establishment clause enhances religious freedom.
Unfortunately, nothing could be further from the truth. The erroneous
wall-of-separation doctrine has narrowed the role of religion in public
discourse, fueling the view that religion is a private matter rather
than a fundamental precept of American civil society. Even members of
this esteemed body have fallen prey to the disturbing claim that
religious freedom does not extend much further than the church door.
Such an approach undermines religious liberty in numerous ways. It
counsels government to avoid any perceived entanglement with religion--
even accommodation of religious practice, at the core of the right to
free exercise. It tells the religious believer that in order to
participate fully in public life, he should cabin and hide his
religious devotion: Just abandon your religious affiliation, and the
government will partner with your school or charity. Just muzzle your
faith, and you can fully participate in representative government and
lawmaking. Just keep your religion private, and you won't face a swarm
of litigation.
Indeed, despite the hard-fought progress in recent years both in
protecting religious liberty and in restoring sanity to the courts'
approach to the establishment clause, this notion of strict separation
continues to exert a pernicious influence, shrinking the sphere of
acceptable religious exercise. In so doing, it undermines religious
liberty and limits the ways in which faith enriches our society.
Restoring a proper relationship between faith and public life must
continue to be a top priority as a key component of our broad reference
to protect religious liberty for future generations.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BOOZMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Waters of the United States Rule

Mr. BOOZMAN. Mr. President, I rise today as a strong supporter of the
resolution of disapproval we passed today. The WOTUS rule is a classic
example of overreach. Arkansans understand that we don't need DC
bureaucracies controlling our lands. That is why I stand with
homeowners, small businesses, and family farmers in Arkansas in
opposition to the WOTUS mandate.
Passage of this resolution today reflects the American people's
rejection of this heavyhanded mandate and shows our commitment to a
balanced and thoughtful approach to water quality protection. Congress
needs to send this resolution to the President. The President needs to
understand the opposition this power grab is facing is very real. Not
only is there strong bipartisan opposition to this mandate in Congress
but also in the courts and most importantly with the American people.
Last week I got an email from David in North Little Rock. David told
me that he works in construction, and his email was clear. He supports
protecting our Nation's waters, but David believes the Obama
administration's rule will create huge problems and uncertainty for the
construction industry. He said costs will increase, the industry will
lose jobs, and he and others will face unnecessary delays as a result
of the mandate that has nothing to do with protecting our waters.
Legal experts within the executive branch have doubts about this rule
too. At a recent EPW hearing, we heard that many career experts inside
the agencies, particularly the Corps of Engineers, believe this rule is
wrong, but each time the Corps expresses concern that the rule went too
far, the EPA and the rest of the administration refuse to make changes.
From puddles to irrigation ditches, the EPA wants jurisdiction over
every body of water in Arkansas, no matter the size. These are not
scare tactics, they are very real truths. In fact, the White House and
the EPA are the ones engaging in scare tactics to defend this power
grab. They falsely claim that this mandate is necessary to protect
drinking water.
Those protections are already in place with laws like the Safe
Drinking Water Act. For more than 40 years, the Safe Drinking Water Act
has fostered Federal-State cooperation. It has kept our drinking water
clean. It is an effective law, one I support. It does far more to
protect distribution water than anything in the EPA's power grab. In
case these false claims don't scare enough people into supporting this
unjustified power grab, the EPA has invoked rhetoric about rivers
catching on fire and claim there is rampant toxic pollution in our
waterways. Again, this is simply false.
Without waters of the United States, major rivers will continue to
receive Federal and State protection just as they have for decades.
Isolated nonnavigable waters will continue to be protected by State and
local efforts as they have in the past. The courts recognized how
misguided this mandate is and have issued a temporary halt to the
implementation of WOTUS. That injunction now extends to all 50 States.
I applaud the Arkansas attorney general, Leslie Rutledge, for helping
to lead that challenge in the courts. Senator Cotton and I stand arm in
arm with our State's attorney general in this fight. We are committed
to fighting this mandate legislatively, while supporting efforts to
stop it in the courts. That is why today's vote is so very important.
The resolution of disapproval will nullify the waters of the United
States mandate.
Arkansans understand how unnecessary this heavyhanded mandate is. We
already go to great lengths to protect our State's natural resources.
We must ensure that States, local communities, and private citizens
remain a vital part of the process instead of giving all of the power
to Washington. That is what this resolution of disapproval aims to do.
I am pleased we passed it today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
(The remarks of Mr. Merkley pertaining to the introduction of S. 2238
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from North Carolina.

Waters of the United States Rule

Mr. TILLIS. Mr. President, I hate to sound like a broken record, but
unfortunately that is the scenario the Obama administration and the
minority leader have led me to today. When I sought this position as a
Senator from North Carolina, I promised the voters back in my home
State that I was going to come up here and fix problems, fix
Washington, and get us back to work.
Yesterday an attempt to rein in the President and the EPA failed. It
failed along party lines. Today we had another chance to come together
and help protect Americans from Washington's continual power grab, to
ensure they are not subject to illegal Executive overreach, and to take
control of a bloated bureaucracy. Today's effort passed but only by a
slim margin. We must stand up to the President and to the Senate
minority leader and their efforts to continue implementing policies
that destroy our Nation's economy and in this case harm farmers and
small businesses in a variety of ways.
I want the voters to remember this day. I want them to remember who
stood against the illegal expansion of Federal control over their land
and their livelihood and remember those who did not. The waters of the
United States--we have acronyms for everything, it is called WOTUS--is
just another Washington power grab that has more to do with controlling
your property than ensuring access to clean water.
Leaders at the EPA claim that those who oppose WOTUS oppose clean

[[Page S7755]]

water. That seems like an absurd notion for anybody who is in this
body. This is a completely false and elitist claim. I firmly believe
that Members on both sides of the aisle can all agree we value clean
water. I love nothing more than going out on Lake Norman back in my
home State or spending time fly-fishing in the mountains of North
Carolina or spending time on the rivers near our coast, but under this
rule virtually every nook and cranny of the country would be subject to
EPA control. There is a risk that puddles in our backyards and ditches
and crop fields will be regulated in the same manner our States
regulate--properly--our beautiful lakes and rivers.
One thing is clear under the waters of the United States, WOTUS,
there is no clarity. There is complete uncertainty and layer upon layer
of bureaucratic redtape. Our landowners, our farmers, our ranchers, and
business owners across the country will be subject to compliance costs,
new fines, and the risk of litigation--all at the discretion of the
Environmental Protection Agency.
In March, the Senate agriculture committee held a hearing on the
waters of the United States, inviting stakeholders to discuss their
concerns. We were proud to have the secretary of the North Carolina
Department of Environment and Natural Resources, who told us in regard
to the rule: ``It's not absolutely clear what in the world it does say,
other than providing the EPA with a lot of discretion when determining
navigable waters.''
Navigable waters--not a ditch, not a depression that gets filled up
when it rains but navigable waters. How on Earth are Members of this
body, Senators, willing to allow such a horrible policy to plague our
farmers, our businesses and, I might add, our cities and towns that on
a bipartisan basis have expressed concern to me in my home State. It is
clear to me the Obama administration did not consult with our State
leaders, county leaders, and city leaders when choosing to redefine the
rule. We are at a moment where we must prevent this policy, putting our
landowners and job creators ahead of partisan politics.
It is not my goal to focus simply on North Carolina in this speech. I
know my colleagues from Colorado, Florida, Indiana, Iowa, Minnesota,
Missouri, Montana, New Mexico, Nevada, North Dakota, a number of States
have family and friends who will endure burdens if this bad policy
stands.
My State is a great example of just how detrimental this rule is to
our farmers and to families in North Carolina. North Carolina has over
300 miles of coastline, 17 major river basins, and roughly 37,000 miles
of freshwater streams--all places that North Carolina residents,
farmers, and businesses call home. Much of the eastern part of the
State, which runs along the Atlantic Ocean, is susceptible to flooding,
even after the lightest rainfall.
Earlier this week parts of the State were again hit hard with heavy
rainfall, compounding the effects of last month's historic flooding
associated with the hurricane. If the Environmental Protection Agency
moves forward with waters of the United States, it will severely
restrict the local government's ability to quickly react when we are
recovering from events.
Imagine this. Imagine a water event or a hurricane or a rain like we
had in South Carolina, which dumps 1 foot or 2 feet of water on an area
that has been cropland, cultivated, and harvested by farmers--let us
say in North Carolina or South Carolina. This rule is going to make it
almost impossible for that farmer to begin recovering immediately
because of the uncertainty of the regulations that come with waters of
the United States. Not only will they suffer the ravages of the storm,
they will also suffer the ravages of this poorly thought-out policy
overreach.
The policy raises many questions. For example, is a flooded ditch
considered a navigable water under waters of the United States? Many
people believe it is. What about a crop field that just had 2 feet of
rain? A standing pothole may actually be subject to waters of the
United States, which puts a farmer in the position where they may get
punitive measures imposed upon them by the EPA.
Don't get me wrong. I am a firm believer in ensuring clean water. It
is imperative to a flourishing agriculture industry and our local State
and national economies. In North Carolina we have a thriving brewery
industry out in the beautiful mountains of Asheville. They need access
to abundant, clean water.
In Eastern North Carolina, we have a thriving pharmaceutical
industry. They need access to abundant, clean water. There are a
variety of reasons why we have to make sure our water resources are
clean and abundant.
How can I tell our farmers that in ensuring clean water, we may fine
them for small flood puddles such as the one shown here? We need fair
practices that will help turn our economy around, not hinder the hard
work of our farmers, our ranchers, and small businesses across this
country. We need policies that will help families put food on their
kitchen tables and not penalize our land and homeowners.
Americans need clarity and they need fairness, not vague, ambiguous
rules such as the WOTUS, waters of the United States, which undercut
State authority, undercut local authority, and promote what I believe
is an illegal government overreach.
The Supreme Court has tried to rein in the EPA's misinterpretation of
``navigable water'' several times. Based on the result of our vote
earlier today, the majority of this Chamber and the House believe the
EPA has overreached--and the courts agree. Yet the President said he
will veto the bipartisan resolution that just passed out of this
Chamber today. This administration continues to disregard the will of
the Congress, the warnings of the courts, and the preferences of the
American people. How long will we continue to let the partisan Obama
administration dictate our course of action in the Congress and for the
country? We must stop this unfunded mandate and alleviate the burdens
on our farmers and business owners, not punish them.
If we do not stop the implementation of this egregious rule right
now, we are setting a dangerous precedent and we are betraying the
trust of many Americans. I urge my fellow colleagues today: Let us stay
strong on this bill. Let us send a message to the President that he
should sign this resolution into law and get back to healing this
economy.
Thank you.
The PRESIDING OFFICER (Mr. Scott). The Senator from Missouri.
Mr. BLUNT. Mr. President, I ask unanimous consent that the cosponsors
of the resolution I am about to call up and I be allowed to engage in a
colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.

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