[Congressional Record Volume 162, Number 143 (Wednesday, September 21, 2016)]
[Senate]
[Pages S5915-S5921]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     LEGISLATIVE BRANCH APPROPRIATIONS ACT, 2017--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to H.R. 5325, which the 
clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to Calendar No. 516, H.R. 5325, a bill 
     making appropriations for the Legislative Branch for the 
     fiscal year ending September 30, 2017, and for other 
     purposes.

  The PRESIDING OFFICER. The Senator from Illinois.


                              Wells Fargo

  Mr. DURBIN. Mr. President, every morning paper and most of the 
newscasts this morning focused in on a hearing of the Senate Banking 
Committee yesterday. It was a hearing where the President of the Wells 
Fargo bank was called on to testify. At issue was a recent disclosure 
that over a period of many years, Wells Fargo bank was enrolling its 
customers, without their knowledge, in the ownership of bank accounts 
and credit cards. Many times they faced penalties and charges which 
they did not understand because they had not asked to be enrolled in 
these programs. The employees at Wells Fargo bank did it in an effort 
to win favor within their corporate ranks and even to receive bonuses.
  This defrauding of thousands of Wells Fargo customers was finally 
unearthed by the media and by the Consumer Financial Protection Bureau. 
As a result, a substantial fine of millions of dollars was paid by 
Wells Fargo bank, and the President, Mr. Stumpf, was called before the 
committee yesterday to explain the situation. He faulted the over 5,000 
employees of Wells Fargo bank, who he said were not honest in their 
dealings with their customers, and they were dismissed. There were 
questions asked of Mr. Stumpf about the responsibility of the 
management of Wells Fargo bank for this terrible miscarriage of justice 
and apparently very few, if any, managers were held accountable.
  One particular woman who was in a management capacity had been 
allowed to leave the bank under extremely positive circumstances. She 
was given a golden parachute of over $100 million when leaving the 
bank. So while 5,300 people, making around $12 an hour, were being 
dismissed because of their lack of ethics, this managing woman was, in 
fact, rewarded with a golden parachute of over $100 million as she 
left.
  Questions were raised by many of my colleagues, including Senator 
Brown, and even Republican colleagues were skeptical of this Wells 
Fargo presentation. Senator Elizabeth Warren was particularly poignant 
in her remarks that so many of the lower echelon employees were found 
morally culpable and paid a heavy price, while those at the highest 
ranks, including Mr. Stumpf himself, were compensated grandly for their 
leadership during this terrible time. It is an indication of what it 
takes to bring real justice to a free market system.
  I am a person who believes America is lucky to have the economy it 
has, but I also know that throughout history, there have been excesses 
where people have had to step in--sometimes the media with disclosure 
and many times the government with oversight and regulation--to right 
the wrongs which occur in runaway, rampant capitalism. We saw it, of 
course, in the recession that hit our country in 2008. Many of the 
largest banks in this country took advantage of individuals and 
families and businesses. At the end of it, many people lost their 
savings, their homes, and their jobs because of the greed of Wall 
Street, but what we are talking about in the area of justice doesn't 
just apply to financial institutions, it applies to health insurance as 
well.


                          Affordable Care Act

  Mr. President, on a regular basis now, the leadership on the 
Republican side of the aisle has come forward to condemn the Affordable 
Care Act. It apparently is a big issue which they want to take into the 
election in November. I hope the American people listen carefully to 
what we have just heard from Senator McConnell, the Republican leader 
in the Senate.
  Day after day, week after week, month after month, and year after 
year, for the last 5 years, Republicans have come to the floor and 
said: Let's abolish ObamaCare. Let's end the Affordable Care Act. I am 
still waiting for the first Republican to come to the floor and say: 
And here is what we will replace it with.
  There is a saying in downstate Illinois--I will clean it up a little 
bit--that any mule can kick down a barn door, but it takes a carpenter 
to build one. In this situation, the Republicans can't wait to kick 
down the Affordable Care Act, but they don't have any plans to build a 
replacement.
  So here is what they want to do. They want to go back to what they 
consider the good old days of health insurance in America.
  Six years ago, let me tell me colleagues, health insurance in America 
was no picnic for most American families. Not only was there a steady 
increase in premiums year after year, but health insurance companies 
were very picky about the people they would insure. If you happened to 
be the parents of a child who had weathered the storm and survived 
cancer treatment, your child had a preexisting condition. If you could 
get health insurance, you paid a lot for it. The same thing was true if 
your wife had survived a heart attack, for example, and was now on the 
mend and doing well. She had a preexisting condition.
  So preexisting conditions became the basis for discriminating against 
American consumers. Who among us comes from such a perfect family 
without any health record that we can say there are no preexisting 
conditions in my family. If you don't have one today, you might have 
one tomorrow.
  One of the things about the Affordable Care Act is, we said health 
insurance companies cannot discriminate against people because of 
preexisting conditions. In the bad old days, which the Republicans 
would return to, they could. Under the Affordable Care Act, they 
cannot.
  We also said that lifetime limits on health insurance policies were 
unacceptable. So $100,000 may sound like a lot of money until you are 
diagnosed with cancer, and then you realize the course of treatment is 
going to blow through that $100,000 before you are ultimately going to 
get what the doctor has ordered. So we eliminated the lifetime caps on 
these policies that were, in fact, creating poverty among many 
Americans families because of medical diagnoses.
  We also eliminated discrimination based on gender. Why was it that a 
man applying for a health insurance policy was paying less than a woman 
applying for a health insurance policy? That discrimination was allowed 
under the bad old days of health insurance that the Republicans want to 
return to.
  We went further and said: If you are parents and have a young son or 
daughter, they can stay under your family health insurance plan until 
they reach the age of 26. Why is this important? Because kids out of 
college are still looking for work. They may not get a full-time job, 
they may not get health care benefits, but families want the peace of 
mind to know they are covered

[[Page S5916]]

until age 26, until they can have a chance to develop their own health 
insurance coverage. Under the bad old days, that coverage was not 
there. The Republicans would like to go back to that. That is a mistake 
as far as I am concerned.
  We also basically said as well that if you are a senior citizen in 
America, you are not going to be burdened by what was known as the 
doughnut hole. People in Medicare are given a benefit for prescription 
drugs, but as the law was originally written, there was a gap in 
coverage in that benefit called the doughnut hole. You would be covered 
for the first few months of the year on expensive drugs; then you would 
be on your own to either pay out of your savings or not take the drugs 
for several months before coverage started again. We are closing the 
doughnut hole as part of the Affordable Care Act. The Republicans would 
take us back to the days of the doughnut hole, where individual retired 
Americans would face expenses of $2,000 or more for drugs each year. We 
are in the process of closing that doughnut hole. The Republicans would 
take us back to the bad old days when we didn't have that closure.
  They would eliminate the coverage of health insurance brought on by 
the Affordable Care Act for over 20 million Americans--20 million 
Americans. Senator McConnell would say: Sorry, we are going back to the 
bad old days. You and your family don't get health care coverage.
  There is something we discovered. Even families without health 
insurance get sick, and when they do get sick and, in the worst of 
circumstances, turn up at the doctor or the hospital, they are treated, 
and many times can't pay for it. Who pays for that care? Everyone else. 
Everyone else who is paying health insurance will pay for it.
  We think it is better under the Affordable Care Act. We achieved 
this: More and more Americans have their own health insurance, both for 
care when they are sick as well as for preventive care. We provide 
preventive care under the Affordable Care Act, particularly for senior 
citizens so they will avoid serious illnesses that get very expensive 
down the line.
  So what has been the net result of this? Not only are there 20 
million more people who have health insurance in America because of the 
Affordable Care Act, but also the fact is, the rate of increase in 
costs in health care has slowed down--slower than at any time in recent 
records or modern memory. It has extended the life of Medicare for 
another 12 or 13 years because the cost of health care is not rising as 
quickly as we thought it might.
  The Republicans would take us back to the bad old days when the cost 
of health care was going up even more rapidly. I don't think most 
Americans would sign up for that.
  We also understand that when it comes to the Affordable Care Act, 
there are ways to improve it. I signed on to one of the provisions that 
Senator McConnell took exception to this morning. It is a provision for 
us to consider a public option when it comes to health insurance. I am 
all for private health insurance companies competing, doing their best, 
trying to win the support and the enrollment of American families, but 
what is wrong with creating a Medicare-like proposal that is a not-for-
profit entity providing health insurance along the style of Medicare?
  Senator McConnell was pretty critical of that this morning. He hadn't 
asked most Americans what they think about Medicare. He should. Many of 
them thank God we have it. For many of them, it meant health insurance 
when they had no place to turn. The creation of Medicare over 50 years 
ago was liberating to many seniors. Now they finally have affordable, 
quality health care after they retire. So putting that on as a public 
option to be considered by those who are signing up for health 
insurance would let them shop and let them compete. That to me is 
consistent with what we want to achieve when it comes to health care in 
this country.

  So we listen time and again to these attacks and critiques of the 
Affordable Care Act. We have yet to see the Republican alternative. The 
only alternative they suggest is going back to the bad old days when 
health insurance cost too much, when health insurance discriminated 
against people with preexisting conditions, and when health insurance 
was a gamble as to whether you would have it from this year to the 
next.
  There are ways to improve the Affordable Care Act. I won't come to 
argue and will be the last to say that it is perfect as written, but in 
order to improve it, we need bipartisan cooperation, which we don't 
have. On the Republican side of the aisle, there have been 60 or 70 
votes to abolish it, but not 1 vote to step up and try to improve it, 
which I would be happy to join in on a bipartisan basis. That is what 
the American people expect of us.
  The last point I would like to make on the issue of health care is to 
state for the Record of the U.S. Senate that we had a meeting yesterday 
on medical research. This is a good news story, and there aren't a lot 
of them on Capitol Hill. But we moved forward on a bipartisan basis to 
make substantial increases in the medical research budgets of the 
National Institutes of Health. This is the premier medical research 
facility for the world, and we are lucky to have it right here in the 
Washington area.
  Dr. Francis Collins heads it up. He told me years ago that if he 
could get 5-percent real growth in medical research for a number of 
years, we could make dramatic advances when it comes to medical 
research and cures for diseases. I took him up on that, and I enlisted 
a joint effort--first with Patty Murray, my colleague from the State of 
Washington, who is in a key position on the Appropriations Committee 
and the authorizing committee in the area of medical research and is 
totally committed to the effort, and on the Republican side Senator 
Blunt of Missouri and Senator Alexander of Tennessee. Then Senator 
Lindsey Graham of South Carolina joined me to cochair the NIH Caucus.
  Here are some things you may not know about medical research and how 
important it is. There was a briefing yesterday on diabetes. I didn't 
realize until I walked into that briefing that one-third of the annual 
expenditure for Medicare is for the treatment of diabetes. In addition 
to that, 20 percent of the annual expenditure for Medicare is for 
Alzheimer's. So for two diseases, diabetes and Alzheimer's, more than 
50 percent of our Medicare budget is being spent each year. If we could 
develop new drugs, new treatments, new approaches that deal with 
diabetes and Alzheimer's, it would not only spare the people from the 
suffering they are going through and from the need for medical care, 
but it would greatly help our Medicare Program to be more solvent for 
years to come.
  Is medical research a good investment? I think it is the best 
investment. We have seen it pay off over and over and over again. Do 
you remember not too long ago when we were talking about people who 
were making their last trek down to Plains, GA, in the hopes that they 
would see former President Jimmy Carter for the last time because of 
his cancer diagnosis? Then, do you remember when President Jimmy Carter 
held a press conference and said: I am cancer-free. It was because of 
the development of drugs and medical treatments through medical 
research. That has given him back his life. For many Americans, it is 
the same story every day.
  We may do a lot of things wrong in Washington, but let's not get 
medical research wrong. Let's get it right. Let's make it bipartisan, 
and let's invest in it. I can't think of a better investment for future 
generations in this country.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. (Mr. Cotton). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak for 
up to 17 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Climate Change

  Mr. WHITEHOUSE. Mr. President, I am here for the 147th time in my 
series of speeches urging the Senate to wake up to the consequences of 
climate change and also to the motives of the outside forces that lull 
the Senate into persistent somnambulism.

[[Page S5917]]

  Outside this Chamber, every major scientific society, every one that 
I know of, of my colleagues' home State universities, all of America's 
National Labs, our military and security professionals, and NOAA and 
NASA all agree on the basic science of climate change and broadly 
support responsible climate action. There may be uncertainty about 
exactly what year sea level rise will hit what floodmark, for instance, 
but on the basic idea that climate change is causing seas to rise and 
floods to come, it is game over.
  NASA reported that August 2016 was the warmest August in 136 years of 
recordkeeping. August tied July as the hottest month the world has seen 
in the 136 years we have been measuring. More notable, August marked 
the 11th record-setting month in a row in NASA's data set. Why, in the 
face of all of that, does this Chamber slumber? Thank the dark 
influence of the fossil fuel industry.
  For years, Big Oil and its allies funded outright denial of manmade 
climate change. The Union of Concerned Scientists issued this report 
last year: ``The Climate Deception Dossiers: Internal Fossil Fuel 
Industry Memos Reveal Decades of Corporate Disinformation.'' The report 
documents how the big polluters contributed to front organizations and 
paid scientists to put out junk science contradicting what real, peer-
reviewed science and even the industry's own experts knew about how 
burning fossil fuels affects the environment.
  Take ExxonMobil, for example. According to the company's own 
documents, as recently as 2015, ExxonMobil was still funding 
organizations that promote climate science disinformation, including 
the American Legislative Exchange Council, which peddled legislation to 
State legislatures that included a finding that human-induced global 
warming ``may lead to . . . possibly beneficial climatic changes.''
  At the Hoover Institution, a senior fellow, not a climate scientist, 
argued that climate data since 1880 supports a conclusion that it would 
take as long as 500 years to reach a 4-degree centigrade of global 
warming.
  At the Manhattan Institute of Policy Research, a senior fellow 
writing about climate change said: ``The science is not settled, not by 
a long shot.''
  The CEO of the so-called National Black Chamber of Commerce claimed 
that ``there has been no global warming detected for the last 18 
years.'' Tell that to NASA.
  Let's not forget the Pacific Legal Foundation, where a senior 
attorney attacked EPA's authority to even regulate CO2, in 
part because it is a ``ubiquitous natural substance essential to life 
on Earth.''
  All of those pronouncements by Exxon-backed organizations, as reports 
in both InsideClimate News and the Los Angeles Times have confirmed, 
run counter to what real scientists know. Yet, according to the public 
affairs guy at ExxonMobil, the company has supported mainstream climate 
science for decades. Their PR guy said: ``Frankly, we made the call 
that we needed to back away from supporting the groups that were 
undercutting the actual risk'' of climate change. Well, that doesn't 
actually seem to be true.
  ExxonMobil's campaign of falsehoods has the attention of several 
attorneys general, and in today's newspaper, it is revealed that it 
also has the attention of the Securities and Exchange Commission. Their 
questions are not unreasonable: Is ExxonMobil actively advancing the 
notion that its products have little or no effect on the Earth's 
environment, while at the same time suppressing its own internal 
research on the effects of carbon pollution, deceiving consumers into 
buying ExxonMobil products based on false claims? Is the company 
misleading its investors about its developable oil reserves and long-
term prospects in a climate-changed world? It breaks the law to 
knowingly mislead consumers and shareholders about something material, 
and climate change is certainly material to ExxonMobil.
  As Senator Warren and I recently wrote in the Washington Post, 
investigations by States attorneys general are making ExxonMobil 
nervous, and their Republican friends in Congress are riding to the 
rescue. House Science, Space, and Technology Committee chairman Lamar 
Smith and his fellow committee Republicans have issued subpoenas 
demanding that the attorneys general fork over all materials relating 
to their investigations.
  I asked the Congressional Research Service, and as far as they could 
find, no committee has ever subpoenaed documents in an ongoing State AG 
investigation.
  Setting aside the federalism problem of Congress going after States 
in a sovereign State function, if they tried this stuff with our 
Federal Attorney General, they would be rebuffed.
  The committee subpoenas also targeted eight organizations, including 
the Union of Concerned Scientists, the Rockefeller Family Fund, and 
Greenpeace, ordering them to turn over their internal communications 
related to what Chairman Smith describes as ``coordinated efforts to 
deprive ExxonMobil of its First Amendment rights.''
  Take a moment to absorb that. States attorneys general are 
investigating whether a fraud has been committed--something State AGs 
do every day. As Rhode Island's AG, that is what I did. Sometimes we 
would uncover fraud and sometimes not. Ultimately, if the evidence 
warranted it and if the attorney general pursued the case to trial, the 
question of fraud would be resolved in open court.
  Instead of praising the State AGs for doing their jobs within our 
system of checks and balances, congressional Republicans have leapt in 
to obstruct the investigation before any evidence becomes public. So 
far, both the subpoenaed attorneys general and the eight organizations 
have refused to comply with those subpoenas. I say, good for them. If 
the committee moves to enforce its subpoenas, the matter will then come 
before a judge. If that happens, I hope those attorneys general will 
question whether the committee subpoenas reflect a legitimate 
governmental effort or are issued on behalf of a private party--indeed, 
the very private party which is the subject of those attorney general 
investigations. The law is clear that a legislative committee may 
pursue even an unworthy legislative purpose, but it is not clear that a 
legislative committee can lend itself to a private party. Let the court 
determine whether the House committee is acting as the de facto agent 
of ExxonMobil.

  What might that court consider? Well, first, this is a committee 
whose chairman has received nearly $685,000 in campaign contributions 
since 1989 from the oil and gas industry. The remaining committee 
majority have received over $2.9 million in campaign contributions. I 
expect that is admissible evidence.
  What else might the court consider? The committee asserts ExxonMobil 
has a First Amendment right that it needs to step in to protect. 
Interestingly, the shoe has been on the other foot when an attorney 
general of Virginia was tormenting a climate scientist--indeed, 
tormenting him so badly that the University of Virginia took that 
attorney general all the way to the Virginia Supreme Court to make him 
stop. The committee took no interest in that. Theirs is a First 
Amendment concern that only surfaces when the fossil fuel industry is 
the subject of investigation.
  What else might the court consider? How about that the entire First 
Amendment argument the committee makes is a crock. Ken Kimmell, 
president of the Union of Concerned Scientists, noted that the 
committee ``makes no allegation that UCS violated any laws or 
regulations, and [the] claim, that providing information to attorneys 
general infringes on ExxonMobil's rights, is nonsense.'' Mr. Kimmell is 
right. It is well-established law that there is a clear line between 
fraud and First Amendment-protected speech. The dean of the Yale Law 
School has published an article explaining this. Mr. President, I ask 
unanimous consent that this article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From The Washington Post, June 24, 2016]

               Exxon-Mobil Is Abusing the First Amendment

                            (By Robert Post)

       Global warming is perhaps the single most significant 
     threat facing the future of humanity on this planet. It is 
     likely to wreak havoc on the economy, including, most 
     especially, on the stocks of companies that sell

[[Page S5918]]

     hydrocarbon energy products. If large oil companies have 
     deliberately misinformed investors about their knowledge of 
     global warming, they may have committed serious commercial 
     fraud.
       A potentially analogous instance of fraud occurred when 
     tobacco companies were found to have deliberately misled 
     their customers about the dangers of smoking. The safety of 
     nicotine was at the time fiercely debated, just as the threat 
     of global warming is now vigorously contested. Because 
     tobacco companies were found to have known about the risks of 
     smoking, even as they sought to convince their customers 
     otherwise, they were held liable for fraud. Despite the 
     efforts of tobacco companies to invoke First Amendment 
     protections for their contributions to public debate, the 
     U.S. Court of Appeals for the D.C. Circuit found: ``Of course 
     it is well settled that the First Amendment does not protect 
     fraud.''
       The point is a simple one. If large corporations were free 
     to mislead deliberately the consuming public, we would live 
     in a jungle rather than in an orderly and stable market.
       ExxonMobil and its supporters are now eliding the essential 
     difference between fraud and public debate. Raising the 
     revered flag of the First Amendment, they loudly object to 
     investigations recently announced by attorneys general of 
     several states into whether ExxonMobil has publicly 
     misrepresented what it knew about global warming.
       The National Review has accused the attorneys general of 
     ``trampling the First Amendment.'' Post columnist George F. 
     Will has written that the investigations illustrate the 
     ``authoritarianism'' implicit in progressivism, which seeks 
     ``to criminalize debate about science.'' And Hans A. von 
     Spakovsky, speaking for the Heritage Foundation, compared the 
     attorneys general to the Spanish Inquisition.
       Despite their vitriol, these denunciations are wide of the 
     mark. If your pharmacist sells you patent medicine on the 
     basis of his ``scientific theory'' that it will cure your 
     cancer, the government does not act like the Spanish 
     Inquisition when it holds the pharmacist accountable for 
     fraud.
       The obvious point, which remarkably bears repeating, is 
     that there are circumstances when scientific theories must 
     remain open and subject to challenge, and there are 
     circumstances when the government must act to protect the 
     integrity of the market, even if it requires determining the 
     truth or falsity of those theories. Public debate must be 
     protected, but fraud must also be suppressed. Fraud is 
     especially egregious because it is committed when a seller 
     does not himself believe the hokum he foists on an unwitting 
     public.
       One would think conservative intellectuals would be the 
     first to recognize the necessity of prohibiting fraud so as 
     to ensure the integrity of otherwise free markets. 
     Prohibitions on fraud go back to Roman times; no sane market 
     could exist without them.
       It may be that after investigation the attorneys general do 
     not find evidence that ExxonMobil has committed fraud. I do 
     not prejudge the question. The investigation is now entering 
     its discovery phase, which means it is gathering evidence to 
     determine whether fraud has actually been committed.
       Nevertheless, ExxonMobil and its defenders are already 
     objecting to the subpoena by the attorneys general, on the 
     grounds that it ``amounts to an impermissible content-based 
     restriction on speech'' because its effect is to ``deter 
     ExxonMobil from participating in the public debate over 
     climate change now and in the future.'' It is hard to 
     exaggerate the brazen audacity of this argument.
       If ExxonMobil has committed fraud, its speech would not 
     merit First Amendment protection. But the company 
     nevertheless invokes the First Amendment to suppress a 
     subpoena designed to produce the information necessary to 
     determine whether ExxonMobil has committed fraud. It thus 
     seeks to foreclose the very process by which our legal system 
     acquires the evidence necessary to determine whether fraud 
     has been committed. In effect, the company seeks to use the 
     First Amendment to prevent any informed lawsuit for fraud.
       But if the First Amendment does not prevent lawsuits for 
     fraud, it does not prevent subpoenas designed to provide 
     evidence necessary to establish fraud. That is why when a 
     libel plaintiff sought to inquire into the editorial 
     processes of CBS News and CBS raised First Amendment 
     objections analogous to those of ExxonMobil, the Supreme 
     Court in the 1979 case Herbert v. Lando unequivocally held 
     that the Constitution does not preclude ordinary discovery of 
     information relevant to a lawsuit, even with respect to a 
     defendant news organization.
       The attorneys general are not private plaintiffs. They 
     represent governments, and the Supreme Court has always and 
     rightfully been extremely reluctant to question the good 
     faith of prosecutors when they seek to acquire information 
     necessary to pursue their official obligations. If every 
     prosecutorial request for information could be transformed 
     into a constitutional attack on a defendant's point of view, 
     law enforcement in this country would grind to a halt. 
     Imagine the consequences in prosecutions against terrorists, 
     who explicitly seek to advance a political ideology.
       It is grossly irresponsible to invoke the First Amendment 
     in such contexts. But we are witnessing an increasing 
     tendency to use the First Amendment to unravel ordinary 
     business regulations. This is heartbreaking at a time when we 
     need a strong First Amendment for more important democratic 
     purposes than using a constitutional noose to strangle basic 
     economic regulation.

  Mr. WHITEHOUSE. As the attorney general of New York correctly states, 
``Fraud is not protected by the First Amendment.''
  A number of high-profile legal scholars sent a letter last week to 
Chairman Smith, condemning the subpoenas as ``misguided.'' The letter 
argues that the subpoenas are ``invalid and constitutionally 
impermissible.'' It turns out, according to these scholars, that the 
First Amendment actually works the other way:

       The Subpoenas, and the threat of future sanctions, 
     themselves threaten the First Amendment--directly inhibiting 
     the rights of their recipients to speak, to associate and to 
     petition state officials without interference from Congress.

  A copy of the legal scholars' letter to Chairman Smith can be 
accessed at the Yale Law School website at http://tinyurl.com/
yaleletter.
  Rhode Island attorney general Peter Kilmartin and his colleagues have 
also urged Chairman Smith to withdraw the subpoenas. ``Your 
interference in our colleagues' work ignores a `vital consideration' 
under our constitutional system of dual sovereignty; the preservation 
of comity between the federal government and the states.''
  Mr. President, I ask unanimous consent that a copy of the Attorney 
General's letter to Chairman Smith be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                State of Maryland,


                               Office of the Attorney General,

                                   Baltimore, MD, August 11, 2016.
     Hon. Lamar Smith,
     Chairman, Committee on Science, Space and Technology, 
         Washington, DC.
       Dear Chairman Smith: We write to express our profound 
     concern with the subpoenas issued on July 13, 2016 to our 
     colleagues, the attorneys general of Massachusetts and New 
     York. Through these subpoenas, which we understand you issued 
     without a vote of the Committee, you seek the production of 
     materials developed by the attorneys general in the course of 
     their ongoing respective investigations of potential 
     violations by the ExxonMobil Corporation of state securities 
     and consumer protection laws. You have framed this 
     intervention as ``vigorous oversight'' of state attorneys 
     general and their investigative work. Such oversight would 
     exceed Congress' constitutional authority, and the July 13 
     subpoenas should therefore be withdrawn.
       Your interference in our colleagues' work ignores a ``vital 
     consideration'' under our constitutional system of dual 
     sovereignty: the preservation of comity between the federal 
     government and the states. See Younger v. Harris, 401 U.S. 
     37, 44-45 (1971). ``Comity,'' Justice Black wrote for the 
     Supreme Court in Younger, means ``a proper respect for state 
     functions, a recognition of the fact that the entire country 
     is made up of a Union of separate state governments, and a 
     continuance of the belief that the National Government will 
     fare best if the States and their institutions are left free 
     to perform their separate functions in their separate ways.'' 
     Id. Any claim of a congressional right to ``oversee'' the 
     work of state constitutional law enforcement officers in 
     fulfilling their core responsibilities under state law 
     disrupts this comity and tears at the essential fabric of our 
     national Constitution.
       As attorneys general, we each hold offices established in 
     our states' constitutions or statutes. Our offices are 
     critical to the functioning of our states' governments, and 
     they have deep historical roots. Some of us, like the 
     attorneys general of Massachusetts and New York, hold offices 
     whose origins precede the founding of our country. The state 
     attorney general has been described by the Florida courts, 
     for example, as ``the attorney and legal guardian of the 
     people. . . . His duties pertain to the Executive Department 
     of the State, and it is his duty to use means most effectual 
     to the enforcement of the laws, and the protection of the 
     people, whenever directed by the proper authority, or when 
     occasion arises.'' State of Florida v. Exxon Corp., 526 F.2d 
     266, 270 (5th Cir. 1976) (quoting Attorney General v. 
     Gleason, 12 Fla. 190, 212 (Fla. 1868)) (holding that Attorney 
     General of Florida had legal authority to pursue federal 
     antitrust action against Exxon and other oil companies 
     without authorization of government agencies allegedly 
     injured by conduct at issue). Several state supreme courts, 
     recognizing the broad discretion conferred on state attorneys 
     general by state constitutions, have aptly described the 
     office of attorney general as a ``public trust.'' See, e.g., 
     Gleason, 12 Fla. at 214; Attorney General v. Morita, 41 Haw. 
     1, 15 (Haw. Terr. 1955); Commonwealth v. Burrell, 7 Pa. 34, 
     39 (1847).
       In fulfilling this public trust, we are each accountable in 
     multiple ways to the people of our states. Most of us were 
     elected directly to our offices by the people we serve. State 
     legislatures write and enact most of the laws that our 
     offices enforce, including securities and consumer protection 
     laws like

[[Page S5919]]

     the ones that give rise to the investigations in New York and 
     Massachusetts that you have proposed to ``oversee.'' 
     Moreover, we are accountable to the courts of our states, 
     which, on innumerable occasions over the course of our 
     states' histories, have ruled both for and against us and our 
     predecessors on issues of federal and state constitutional 
     law, on issues of statutory interpretation, and on other 
     issues.
       ``[O]ur Constitution establishes a system of dual 
     sovereignty between the States and the Federal Government.'' 
     Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). Under that 
     system, the federal government is one of limited powers, and, 
     under the Tenth Amendment, ``[t]he powers not delegated to 
     the United States by the Constitution, nor prohibited by it 
     to the States, are reserved to the States respectively, or to 
     the people.'' It is fundamental to our system of dual 
     sovereignty that, as the Supreme Court has said, ``States are 
     not mere political subdivisions of the United States.'' New 
     York v. United States, 505 U.S. 144, 188 (1992). Indeed, 
     ``State governments are neither regional offices nor 
     administrative agencies of the Federal Government. The 
     positions occupied by state officials appear nowhere on the 
     Federal Government's most detailed organizational chart. The 
     Constitution instead `leaves to the several States a 
     residuary and inviolable sovereignty.' '' Id. (quoting The 
     Federalist No. 39).
       In light of our nation's commitment to the preservation of 
     a system of dual sovereignty, it is not surprising that, 
     despite centuries of investigative and prosecutorial activity 
     by state attorneys general in which constitutional objections 
     have been raised, you have not identified a single valid 
     precedent, from any period of our country's history, for the 
     ``vigorous oversight'' of state attorneys general that you 
     are now proposing to undertake. Difficult enough are cases 
     where Congress proposes to regulate subject matters arguably 
     reserved to the states, and where there may be some 
     analytical difficulty entailed in drawing ``distinction[s] 
     between what is truly national, and what is truly local.'' 
     United States v. Morrison, 529 U.S. 598, 617 (2000). Your 
     investigation, though, would go further. The stated purpose 
     of your investigation is to oversee state constitutional 
     officers themselves and the manner in which they fulfill 
     their responsibilities under state law. Who oversees state 
     officials is a matter ``of the most fundamental sort for a 
     sovereign entity,'' because it is ``through the structure of 
     its government'' that ``a State defines itself as 
     sovereign.'' Gregory v. Ashcroft, 501 U.S. at 460 (holding 
     that Congress could not, through laws prohibiting age 
     discrimination, regulate the retirement age for state 
     judges). Our national Constitution and our respective states' 
     constitutions neither anticipate nor tolerate a structure 
     under which Congress arrogates to itself the authority to 
     oversee investigations conducted by state attorneys general.
       Your proposed ``vigorous oversight'' does not merely 
     interfere with our work and the work of our colleagues. You 
     also purport to supplant the role of state legislatures and 
     state courts. We cannot understand on what basis you seem to 
     assume, for example, that state courts in Massachusetts will 
     be unable to resolve the constitutional objections that 
     ExxonMobil, through skilled counsel, has already lodged 
     there. State courts, not Congress, are the appropriate 
     arbiters of any state law claims brought by the attorneys 
     general of Massachusetts and New York against ExxonMobil and 
     of any constitutional objections that ExxonMobil might 
     assert.
       The Constitution establishes ``a system in which there is 
     sensitivity to the legitimate interests of both State and 
     National Governments, and in which the National Government, 
     anxious though it may be to vindicate and protect federal 
     rights and federal interests, always endeavors to do so in 
     ways that will not unduly interfere with the legitimate 
     activities of the States.'' Younger, 401 U.S. at 44. Your 
     proposed oversight of state constitutional officers cannot be 
     squared with these essential principles of federalism, nor 
     can your attempt to oversee the resolution of alleged 
     constitutional issues arising from the ongoing investigative 
     activities of state attorneys general undertaken under state 
     law. We therefore urge you to withdraw your subpoenas, 
     refrain from attempting to exercise further oversight, and 
     allow state attorneys general and state courts to perform 
     their constitutionally prescribed roles.
           Sincerely,
         Brian E. Frosh, Maryland Attorney General; George Jepsen, 
           Connecticut Attorney General; Douglas Chin, Hawaii 
           Attorney General; Jim Hood, Mississippi Attorney 
           General; Peter F. Kilmartin, Rhode Island Attorney 
           General; Kamala D. Harris, California Attorney General; 
           Karl A. Racine, District of Columbia Attorney General; 
           Janet T. Mills, Maine Attorney General; Ellen F. 
           Rosenblum, Oregon Attorney General; William H. Sorrell, 
           Vermont Attorney General; Mark R. Herring, Virginia 
           Attorney General; Bob Ferguson, Washington Attorney 
           General.

  Mr. WHITEHOUSE. Congressional investigations and hearings have a 
unique ability to focus a nation's attention and bring facts of public 
importance to light. These subpoenas, however, appear intended to 
impede lawful State investigations. They do not advance the First 
Amendment, they trample on it.
  Senator Warren and I offered a suggestion to the House committee in 
our Washington Post piece:

       If this House Committee is so concerned about the First 
     Amendment rights of ExxonMobil, call a hearing, invite 
     ExxonMobil executives to testify, and give them the 
     opportunity to speak. What better way to protect a person's 
     right to speak freely than to give that person a forum to 
     speak, right here in Congress?

  They can come in, say whatever they want to say, and answer 
questions. I know I would love to hear what they have to say.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.


                Tribute to David Doss and Nicole Hebert

  Mr. VITTER. Mr. President, I rise to honor two of my longest serving 
staff members who have been tremendous team leaders in our office: 
David Doss, my State director, and Nicole Hebert, my deputy State 
director. They are both, sadly, departing the Senate later this month 
to start exciting new careers.
  Nicole Hebert started with our team when I was first running for the 
U.S. Senate in 2004. Nicole is a Lafayette native and a native of the 
Acadiana region--or, Cajun country, as it is known--which was a key 
battleground in our election in 2004, in part because we were running 
against a local Cajun candidate in our jungle primary who was supported 
by my predecessor who was also from Acadiana. With Nicole's help, we 
shocked the entire State that year, winning with over 50 percent of the 
vote in the primary, forgoing the need for any runoff and winning 
Acadiana against a Cajun candidate--and Nicole was a big, important 
part of that victory.
  Nicole and her husband Tommy and Nicole's parents Lynne and Joey 
Durel were all incredibly helpful then and ever since then in helping 
me navigate the region and have always made me--as a guy from southeast 
Louisiana--feel right at home in that important part of the State.
  Nicole, Tommy, and Lynne have all been on my staff at one point or 
another, and all of them were just great at helping me loosen up, take 
off my tie, and relax. They were also great at helping explain the 
Boudreaux and Thibodaux jokes that everyone was laughing so hard at and 
I could barely even understand them.
  In Acadiana politics, you are nobody unless you are invited to a 
supper hosted by somebody named Trey, T-boy--or something like that, 
and I can't even count how many of those informal suppers I have been 
to and enjoyed with Nicole and her family. I will tell you, I have 
experienced some of the best food in the world at those great events--
boudin, crawfish pie, etouffe, and alligator sauce piquante--and, of 
course, all the festivals in Acadiana. I have been on so many pickup 
trucks and firetrucks--including an infamous one that broke down in the 
mud--for all of those Acadiana festivals: the Rice Festival, the Sugar 
Festival, the Frog Festival, the Crawfish Festival, and the Shrimp and 
Petroleum Festival. The fun list goes on and on.
  Even though it is technically work, I certainly enjoyed all that time 
with Nicole and the Hebert family, and often found myself with a 
stomach cramp when I left the region, not because I ate or drank too 
much--although that happened too--but because I was always laughing so 
hard in their company.
  Nicole and Tommy, their parents, and their two girls Hannah and 
Meredith, whom I have really enjoyed watching grow up, have all been a 
huge part of our Vitter family life. Wendy and I count them as dear 
friends, and we certainly will keep up with them through the rest of 
our lives.
  David Doss, our State director, was one of my earliest hires when I 
was first elected to the U.S. House. He is my State director and before 
that served as my district director in the U.S. House. I know all of 
our colleagues here can attest to the fact that having a great State 
director on top of things, really managing the State offices properly, 
is a key element of success in any Senate office.
  State directors are on the frontlines of everything. They always have 
to know what is on constituents' minds

[[Page S5920]]

and what is happening around the State, and David has proven one of the 
great State directors in the country.
  We have dealt with more than our share of disasters in Louisiana, and 
there is no one else I would have guiding our office through all that 
than David. Following Katrina, he organized a mobile office so our 
State staff could get around to impacted areas. That continued 
following other disasters. After the BP oilspill, David organized an 
incredibly effective and efficient casework operation to help assist 
people with those important claims.
  David does it all. He has never been above any task, from seeing 
casework all the way through to the best possible outcome, to answering 
phones, to sorting through the mail when necessary, even to helping 
drive and getting me around the State.
  David manages our seven State offices--which, by the way, is more 
than any other Senator from our State has ever had. We have an office 
in the seven biggest metropolitan locations around the State. So that 
is no easy task for him to manage. He has to coordinate our staff's 
driving schedule from New Orleans to Lake Charles, to Shreveport, to 
Monroe--all that in the same day sometimes--to get me to every parish, 
every Congress, for townhall meetings, a pledge I made when I first ran 
for the Senate in 2004.
  Others have chosen to fly on private jets to get around the State, 
but David always organized for us to drive each leg of each journey to 
save taxpayer dollars and so we can see what is really happening on the 
ground in every parish of our great State. Sometimes David would be 
doing that driving himself.
  There was one time, of course, when we had to take away David's 
driving privileges for a while after he backed into a street sign with 
me in the car, but don't worry, no injuries--except possibly to David's 
pride for a while. Other than that minor accident, I would describe 
David's leadership of our State staff as really steady--a great 
leading, guiding influence, always a steady hand, always has an open 
line of communication, always listens well, always leads with that 
reassuring, steady hand.
  There are very few community meetings, ribbon cuttings, or luncheons, 
or events all around our State where we don't have our State staff in 
attendance, and David has really helped build and run that well-oiled 
State staff machine and that well-oiled constituent service machine.
  I have often said, the most fulfilling parts of my career are the 
relationships and friendships Wendy and I have built, including with 
our great staff. Wendy and I often consider staff an extension of our 
family. That is absolutely true for David and his wife Anne Mary and 
their daughters Julie and Jennifer.
  We wish them all the best as they start an exciting part of their 
lives. I thank Nicole and David for their wonderful service to 
Louisiana and for their friendship. We wish them all the best again as 
they start new parts of their careers. They are great individuals, they 
are great team leaders, and they are also great representatives of a 
wonderful State staff.
  I mentioned before we have seven offices around Louisiana. Each 
office has a strong presence in their regions and their communities. I 
think our State staff, in that presence, has created the gold standard 
for constituent service, in part because of David and Nicole's 
leadership, but we have also built a great team, without exception, in 
all seven of those offices. To me, success in Congress is not measured 
by how many bills or amendments you introduce or pass but how many 
people you help and impact in a positive way. And our staff has 
countless success stories through their important casework--really 
important casework wins--which sometimes actually changes people's 
lives in a major way for the better. It is because of this gold 
standard that our great State staff has developed that we decided to 
memorialize what we have collected as best practices in terms of 
constituent service. We are putting that into a guidebook related to 
constituent service, and I will be sending that guidebook to all of the 
major candidates who are running to fill this Senate seat. In the 
guidebook, we will go through those best practices on constituent 
casework, on helping people and organizations in the State navigate the 
Federal process applying for grants and the like. As to the important 
need of being open and accessible, how a Senate office can do that 
effectively, and maintaining constant lines of communication with our 
fellow Louisiana citizens, all of those best practices and good ideas 
will be going into this guidebook that will be available to my 
successor.

  Again, I want to thank David and Nicole and our entire State staff 
team for their years of dedicated service and success serving, really 
going above and beyond in serving the people of Louisiana.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sullivan). The Senator from Nebraska.


                              The Economy

  Mrs. FISCHER. Mr. President, I rise today to call attention to a very 
troubling issue, and we hear about it often. Sadly, there is a lack of 
leadership from the executive branch with regard to it. I am talking 
about the state of the American economy. Many families across Nebraska 
and across our Nation are worried. Whether they are hardworking parents 
trying to make ends meet or grandparents who are concerned about their 
grandchildren's future, there is no shortage of anxiety.
  As many of my colleagues have pointed out, the economy is not 
recovering quickly enough. In fact, we are slogging through the slowest 
economic recovery since the 1960s. By way of reference, in 1961 Kennedy 
was President, a gallon of gas cost 31 cents, and Roy Orbison was in 
Billboard's top five.
  In every economic recovery since that time, the American economy grew 
an average of 3.7 percent per year. Since 2009, however, this growth 
has averaged a mere 2.1 percent per year. This year, it slowed to just 
1 percent. Last quarter, the economy grew by a pitiful 1.2 percent. 
Again, things are not getting better quickly enough.
  There are some real obstacles before us. The share of Americans in 
the workforce has fallen below 63 percent. That is nearly three 
percentage points below where we were when the recovery began. Another 
concern is the growing number of expensive and burdensome regulations. 
Rulemaking under the Obama administration has skyrocketed. Federal 
regulations cost an estimated $1.9 trillion per year. That is more than 
$15,000 for each American household. These figures are worrisome.
  Here is one that should truly be frightening for us. At the same 
time, we have seen our national debt reach a staggering $19.5 trillion. 
Just last year, the United States spent $223 billion, or 6 percent of 
the Federal budget, to pay interest on that national debt. This year, 
the nonpartisan Congressional Budget Office estimates that our deficit 
will be $590 billion. This means that we are going to be spending 
almost $600 billion more than we take in.
  If we don't change course, the CBO estimates that these deficits are 
going to skyrocket over the next decade, reaching $1 trillion in 2024, 
and they will only continue to grow from there. These numbers paint us 
a very dark picture, but I do have some good news. There is still time 
for us to change course. In fact, this body has taken several good 
steps.
  Since taking office, I have worked with my colleagues to reduce some 
wasteful spending and some burdensome regulations. In 2015, I 
introduced the Grants Oversight and New Efficiency Act, or the GONE 
Act. This bill, which was signed into law in January, will save 
millions of dollars by closing expired grant accounts and increasing 
oversight over Federal grant programs.
  I have also introduced and pushed for votes on several waste-cutting 
amendments during the appropriations process, including one to wind 
down an outdated and ineffective stimulus-era program. These are good 
steps, and here are a few others. We passed a highway bill, which will 
provide much needed certainty for States, businesses, families, and the 
traveling public. By prioritizing our infrastructure, we are investing 
in our economy's ability to grow.
  In the same vein, last week, we passed the Water Resources 
Development Act. This is another key infrastructure bill that will 
enable our economy to grow by modernizing our ports and our waterways. 
So we do have tools available for us to meet these fiscal challenges.

[[Page S5921]]

  We have to exercise restraint, and we have to exercise that restraint 
among ourselves. The appropriations process is a critical way for us to 
do this. It is the only way that our citizens can truly hold their 
elected representatives accountable for this spending. It allows the 
American people to see the true priorities of their elected 
representatives.
  There is one last point before I close. Reducing the national debt 
does not mean that we stop investing. It simply forces us to make 
smarter choices. Some things we need to prioritize, and we know what 
those are. We need to keep our families and our communities safe. We 
must invest in infrastructure to promote commerce and grow this 
economy. We must reduce wasteful spending and prioritize prudent 
spending. We must reduce the national debt. We must get government out 
of the way so opportunities can be created for our families and for our 
young people, but we have to be responsible stewards of taxpayer money. 
We must make those responsible choices.
  I believe that our very best days as a nation are before us, and that 
is because of my unwavering faith in the fundamental goodness, 
tenacity, and the creativity of the American people.
  I yield the floor.
  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. MURPHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________