[Congressional Record Volume 165, Number 37 (Thursday, February 28, 2019)]
[Senate]
[Pages S1595-S1602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. REED (for himself, Ms. Collins, Mr. Warner, Mr. Kennedy,
and Mr. Jones):
S. 592. A bill to amend the Securities and Exchange Act of 1934 to
promote transparency in the oversight of cybersecurity risks at
publicly traded companies; to the Committee on Banking, Housing, and
Urban Affairs.
[[Page S1596]]
Mr. REED. Mr. President, today I am reintroducing the Cybersecurity
Disclosure Act along with two members of the Select Committee on
Intelligence, Senator Collins, and the ranking member, Senator Warner,
in addition to Senator Kennedy and Senator Jones, who also serve with
me on the Senate Banking Committee. In response to data breaches of
various companies that exposed the personal information of millions of
customers, our legislation asks each publicly traded company to
include--in Securities and Exchange Commission, SEC, disclosures to
investors--information on whether any member of the board of directors
is a cybersecurity expert, and if not, why having this expertise on the
board of directors is not necessary because of other cybersecurity
steps taken by the publicly traded company. To be clear, the
legislation does not require companies to take any actions other than
to provide this disclosure to its investors.
In Deloitte's 11th Global Risk Management Survey of financial
services institutions, published last month, ``sixty-seven percent of
respondents named cybersecurity as one of the three risks that would
increase the most in importance for their business over the next two
years, far more than for any other risk. Yet, only about one-half of
the respondents felt their institutions were extremely or very
effective in managing this risk.'' According to the 2018-2019 National
Association of Corporate Directors Public Company Governance Survey,
only 52 percent of directors ``are confident that they sufficiently
understand cyber risks to provide effective cyber-risk oversight,'' and
58 percent ``believe their boards collectively know enough about cyber
risk to provide effective oversight.'' Indeed, Yahoo, in its 2016
annual report, disclosed, ``the Independent Committee found that
failures in communication, management, inquiry and internal reporting
contributed to the lack of proper comprehension and handling of the
2014 Security Incident. The Independent Committee also found that the
Audit and Finance Committee and the full board were not adequately
informed of the full severity, risks, and potential impacts of the 2014
Security Incident and related matters.'' The 2014 Security Incident
here refers to the fact that ``a copy of certain user account
information for approximately 500 million user accounts was stolen from
Yahoo's network in late 2014.''
This is particularly troubling given that data breaches expose more
and more records containing personally identifiable information.
Indeed, according to the Identity Theft Resource Center, the number of
these types of records exposed by data breaches in the business
industry grew from 181,630,520 in 2017 to 415,233,143 in 2018 and in
the medical and healthcare industry from 5,302,846 in 2017 to 9,927,798
last year. Across all industries, the number of records containing
personally identifiable information exposed by data breaches rose 126
percent, from 197,612,748 in 2017 to 446,515,334 in 2018.
Investors and customers deserve a clear understanding of whether
publicly traded companies are prioritizing cybersecurity and have the
capacity to protect investors and customers from cyber related attacks.
Our legislation aims to provide a better understanding of these issues
through improved SEC disclosure.
In testimony given to the Senate Banking Committee last June, Harvard
Law Professor John Coates, who also practiced securities law as a
partner at Wachtell, Lipton, Rosen & Katz, expressed support for our
legislation by stating that ``[the Cybersecurity Disclosure Act] is
well designed. It does not attempt to second-guess SEC guidance and
rules regarding disclosures generally, or even as to cyber-risk
overall. The bill simply asks publicly traded companies to disclose
whether a cybersecurity expert is on the board of directors, and if
not, why one is not necessary. To be clear, the bill does not require
every publicly traded company to have a cybersecurity expert on its
board. Publicly traded companies will still decide for themselves how
to tailor their resources to their cybersecurity needs and disclose
what they have decided. Some companies may choose to hire outside cyber
consultants. Some may choose to boost cybersecurity expertise on staff.
And some may decide to have a cybersecurity expert on the board of
directors. The disclosure required would typically amount to a sentence
or two.''
While this legislation is a matter for consideration by the Banking
Committee, of which I am a member, this bill is also informed by my
service on the Armed Services Committee and the Select Committee on
Intelligence. Through this Banking-Armed Services-Intelligence
perspective, I see that our economic security is indeed a matter of our
national security, and this is particularly the case as our economy
becomes ever more dependent on technology and the internet.
Indeed, General Darren W. McDew, the former commander of U.S.
Transportation Command, which is charged with moving our military
assets to meet our national security objectives in partnership with the
private sector, offered several sobering assessments during an April
10, 2018 hearing before the Senate Armed Services Committee. He stated
that ``cyber is the number one threat to U.S. Transportation Command,
but I believe it is the number one threat to the nation . . . in our
headquarters, cyber is the commander's business, but not everywhere
across our country is cyber a CEO's business . . . in our cyber
roundtables, which is one of the things we are doing to raise our level
of awareness, some of the CEO's chief security officers cannot even get
to the see the board, they cannot even . . . see the CEO. So that is a
problem.''
In my view, this is a real problem because, if we are attacked, the
first strike will likely not be a physical one against the military but
a cyber strike against the infrastructure of movement, logistics, and
other critical assets in the civilian space.
With growing cyber threats, we all need to be more proactive in
ensuring our Nation's cybersecurity before there are additional serious
breaches. This legislation seeks to take one step towards that goal by
encouraging publicly traded companies to be more transparent to their
investors and customers on whether and how their boards of directors
and senior management are prioritizing cybersecurity.
I thank the bill's supporters, including the North American
Securities Administrators Association, the Council of Institutional
Investors, the National Association of State Treasurers, the California
Public Employees' Retirement System, the Bipartisan Policy Center, MIT
Professor Simon Johnson, Columbia Law Professor Jack Coffee, Harvard
Law Professor John Coates, K&L Gates LLP, and the Consumer Federation
of America, and I urge my colleagues to join Senator Collins, Senator
Warner, Senator Kennedy, Senator Jones, and me in supporting this
legislation.
______
By Mr. THUNE (for himself, Mr. Brown, Ms. Baldwin, Mr. Barrasso,
Mr. Blumenthal, Mr. Booker, Ms. Cantwell, Ms. Collins, Ms.
Cortez Masto, Mr. Crapo, Mr. Cruz, Ms. Ernst, Ms. Hassan, Mr.
Hoeven, Mr. Isakson, Mr. King, Ms. Klobuchar, Mr. Leahy, Mrs.
Murray, Mr. Portman, Mr. Reed, Mr. Schatz, Mrs. Shaheen, Mr.
Tillis, Mr. Toomey, Mr. Van Hollen, Mr. Whitehouse, Mr. Wicker,
Mrs. Hyde-Smith, Mr. Murphy, Mr. Peters, Mr. Risch, and Mr.
Lee):
S. 604. A bill to limit the authority of States to tax certain income
of employees for employment duties performed in other States; to the
Committee on Finance.
Mr. THUNE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 604
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mobile Workforce State
Income Tax Simplification Act of 2019''.
SEC. 2. LIMITATIONS ON STATE WITHHOLDING AND TAXATION OF
EMPLOYEE INCOME.
(a) In General.--No part of the wages or other remuneration
earned by an employee who performs employment duties in more
than one State shall be subject to income tax in any State
other than--
[[Page S1597]]
(1) the State of the employee's residence; and
(2) the State within which the employee is present and
performing employment duties for more than 30 days during the
calendar year in which the wages or other remuneration is
earned.
(b) Wages or Other Remuneration.--Wages or other
remuneration earned in any calendar year shall not be subject
to State income tax withholding and reporting requirements
unless the employee is subject to income tax in such State
under subsection (a). Income tax withholding and reporting
requirements under subsection (a)(2) shall apply to wages or
other remuneration earned as of the commencement date of
employment duties in the State during the calendar year.
(c) Operating Rules.--For purposes of determining penalties
related to an employer's State income tax withholding and
reporting requirements--
(1) an employer may rely on an employee's annual
determination of the time expected to be spent by such
employee in the States in which the employee will perform
duties absent--
(A) the employer's actual knowledge of fraud by the
employee in making the determination; or
(B) collusion between the employer and the employee to
evade tax;
(2) except as provided in paragraph (3), if records are
maintained by an employer in the regular course of business
that record the location of an employee, such records shall
not preclude an employer's ability to rely on an employee's
determination under paragraph (1); and
(3) notwithstanding paragraph (2), if an employer, at its
sole discretion, maintains a time and attendance system that
tracks where the employee performs duties on a daily basis,
data from the time and attendance system shall be used
instead of the employee's determination under paragraph (1).
(d) Definitions and Special Rules.--For purposes of this
Act:
(1) Day.--
(A) Except as provided in subparagraph (B), an employee is
considered present and performing employment duties within a
State for a day if the employee performs more of the
employee's employment duties within such State than in any
other State during a day.
(B) If an employee performs employment duties in a resident
State and in only one nonresident State during one day, such
employee shall be considered to have performed more of the
employee's employment duties in the nonresident State than in
the resident State for such day.
(C) For purposes of this paragraph, the portion of the day
during which the employee is in transit shall not be
considered in determining the location of an employee's
performance of employment duties.
(2) Employee.--The term ``employee'' has the same meaning
given to it by the State in which the employment duties are
performed, except that the term ``employee'' shall not
include a professional athlete, professional entertainer,
qualified production employee, or certain public figures.
(3) Professional athlete.--The term ``professional
athlete'' means a person who performs services in a
professional athletic event, provided that the wages or other
remuneration are paid to such person for performing services
in his or her capacity as a professional athlete.
(4) Professional entertainer.--The term ``professional
entertainer'' means a person of prominence who performs
services in the professional performing arts for wages or
other remuneration on a per-event basis, provided that the
wages or other remuneration are paid to such person for
performing services in his or her capacity as a professional
entertainer.
(5) Qualified production employee.--The term ``qualified
production employee'' means a person who performs production
services of any nature directly in connection with a State
qualified, certified or approved film, television or other
commercial video production for wages or other remuneration,
provided that the wages or other remuneration paid to such
person are qualified production costs or expenditures under
such State's qualified, certified or approved film incentive
program, and that such wages or other remuneration must be
subject to withholding under such film incentive program as a
condition to treating such wages or other remuneration as a
qualified production cost or expenditure.
(6) Certain public figures.--The term ``certain public
figures'' means persons of prominence who perform services
for wages or other remuneration on a per-event basis,
provided that the wages or other remuneration are paid to
such person for services provided at a discrete event, in the
nature of a speech, public appearance, or similar event.
(7) Employer.--The term ``employer'' has the meaning given
such term in section 3401(d) of the Internal Revenue Code of
1986 (26 U.S.C. 3401(d)), unless such term is defined by the
State in which the employee's employment duties are
performed, in which case the State's definition shall
prevail.
(8) State.--The term ``State'' means any of the several
States.
(9) Time and attendance system.--The term ``time and
attendance system'' means a system in which--
(A) the employee is required on a contemporaneous basis to
record his work location for every day worked outside of the
State in which the employee's employment duties are primarily
performed; and
(B) the system is designed to allow the employer to
allocate the employee's wages for income tax purposes among
all States in which the employee performs employment duties
for such employer.
(10) Wages or other remuneration.--The term ``wages or
other remuneration'' may be limited by the State in which the
employment duties are performed.
SEC. 3. EFFECTIVE DATE; APPLICABILITY.
(a) Effective Date.--This Act shall take effect on January
1 of the second calendar year that begins after the date of
the enactment of this Act.
(b) Applicability.--This Act shall not apply to any tax
obligation that accrues before the effective date of this
Act.
______
By Mr. DURBIN (for himself, Mr. Whitehouse, Ms. Warren, Mr. Reed,
Mr. Brown, Mr. Blumenthal, Ms. Hirono, and Mr. Markey):
S. 608. A bill to provide that chapter 1 of title 9 of the United
States Code, relating to the enforcement of arbitration agreements,
shall not apply to enrollment agreements made between students and
certain institutions of higher education, and to prohibit limitations
on the ability of students to pursue claims against certain
institutions of higher education; to the Committee on Health,
Education, Labor, and Pensions.
Mr. DURBIN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 608
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Court Legal Access and
Student Support (CLASS) Act of 2019''.
SEC. 2. INAPPLICABILITY OF CHAPTER 1 OF TITLE 9, UNITED
STATES CODE, TO ENROLLMENT AGREEMENTS MADE
BETWEEN STUDENTS AND CERTAIN INSTITUTIONS OF
HIGHER EDUCATION.
(a) In General.--Chapter 1 of title 9 of the United States
Code (relating to the enforcement of arbitration agreements)
shall not apply to an enrollment agreement made between a
student and an institution of higher education.
(b) Definition.--In this section, the term ``institution of
higher education'' has the meaning given such term in section
102 of the Higher Education Act of 1965 (20 U.S.C. 1002).
SEC. 3. PROHIBITION ON LIMITATIONS ON ABILITY OF STUDENTS TO
PURSUE CLAIMS AGAINST CERTAIN INSTITUTIONS OF
HIGHER EDUCATION.
Section 487(a) of the Higher Education Act of 1965 (20
U.S.C. 1094(a)) is amended by adding at the end the
following:
``(30) The institution will not require any student to
agree to, and will not enforce, any limitation or restriction
(including a limitation or restriction on any available
choice of applicable law, a jury trial, or venue) on the
ability of a student to pursue a claim, individually or with
others, against an institution in court.''.
SEC. 4. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take
effect 1 year after the date of enactment of this Act.
______
By Mr. GRASSLEY (for himself and Mr. Wyden):
S. 617. A bill to amend the Internal Revenue Code of 1986 to extend
certain expiring provisions, to provide disaster tax relief, and for
other purposes; read the first time.
Mr. GRASSLEY. Mr. President, before the Presidents Day recess, I
announced that I would introduce legislation if the tax extenders
weren't included in the legislation that we passed at that time that
would keep government open.
Today I am following through on that promise with a bill that I am
introducing with Finance Committee ranking member Senator Wyden of
Oregon.
It is fitting that I am taking this step in the same month as
Groundhog Day, as the subject of my remarks is something that Congress
has had to deal with too many times already.
Next to me is a depiction from the movie ``Groundhog Day,'' which is
about a man named Phil who must relive the same day over and over until
he gets everything right. While we still need to break the cycle of
repetitive short-term extensions, the right thing to do right now is to
extend these already-expired provisions for 2018 and 2019.
As I have said before, the tax extenders are a collection of
temporary tax
[[Page S1598]]
incentives that have required extension on a very regular basis in
order to keep them available to the taxpayers. Currently, there are 26
provisions. At one time there were as many as 50-some. We have done
away with some of them and made some of those laws permanent, but these
26 provisions expired at the end of 2017. They need to be extended, as
well as three others that expired at the end of last year.
Today we are in the middle of filing season for 2018 tax returns, and
taxpayers affected by these expired provisions need a resolution so
that they can file. I want to stress that I want to find a long-term
resolution so that we don't have to have temporary tax policy, but it
is critical we make it clear to the taxpayers that these provisions are
available for the 2018 filing season and extending them for this year
will give us room to take a needed long-term view of this temporary tax
policy.
Many of the tax extenders are intended to be incentives, and to be
successful, then, these incentives need to be in effect before
decisions can be made. That is why we should provide extensions for at
least 2 years, to maximize that incentive effect. But it is also
important that we extend these provisions for 2018, even though the
year has obviously already ended. We have developed a very bad policy
and a very bad habit of extending these tax provisions year after year,
and people and businesses have come to expect that the extension will
happen.
As a result, decisions were made by various businesses in 2018 based
upon the expectation of extension, and that is a reasonable expectation
because we have done it over decades. In other words, people did what
we wanted them to do in their business decisions when these provisions
were created. We should not retroactively punish these businesspeople
for Congress's inaction.
Today, a diverse group of organizations, including the National
Biodiesel Board, the American Trucking Associations, and the National
Corn Growers Association, among others, sent a letter to congressional
leaders requesting that the expired provisions be extended through 2019
as quickly as possible. I want to quote a few sentences from that
letter:
Providing taxpayers with a predictable planning outlook as
it pertains to tax rules is conducive to increased private
sector investment and economic activity. Accordingly, we
respectfully ask that you act to retroactively extend these
expired tax provisions through 2019 on the first appropriate
legislative vehicle.
Mr. President, I ask unanimous consent that the complete letter be
printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
February 28, 2019.
Hon. Nancy Pelosi,
Speaker of the U.S. House,
Washington, DC.
Hon. Kevin McCarthy,
U.S. House Republican Leader,
Washington, DC.
Hon. Mitch McConnell,
U.S. Senate Majority Leader,
Washington, DC.
Hon. Charles Schumer,
U.S. Senate Democratic Leader,
Washington, DC.
Hon. Richard Neal,
Chairman, U.S. House Committee on Ways and Means,
Washington, DC.
Hon. Kevin Brady,
Ranking Republican Member, U.S. House Committee on Ways and
Means,
Washington, DC.
Hon. Charles Grassley,
Chairman, U.S. Senate Finance Committee,
Washington, DC.
Hon. Ron Wyden,
Ranking Democratic Member, U.S. Senate Finance Committee,
Washington, DC.
Dear Speaker Pelosi, Republican Leader McCarthy, Majority
Leader McConnell, Democratic Leader Schumer, Chairman Neal,
Ranking Member Brady, Chairman Grassley and Ranking Member
Wyden: The following organizations, representing diverse
business, energy, transportation, real estate and agriculture
sectors, are writing to you regarding the pressing need to
address the expired tax provisions (``tax extenders''). We
respectfully ask that at a minimum, the House and Senate
retroactively extend these provisions through 2019 promptly
in order to minimize potentially severe disruptions to the
recently opened tax filing season.
These temporary tax provisions have remained lapsed since
the end of 2017. This has created confusion for the numerous
industry sectors that utilize these tax incentives and has
threatened thousands of jobs in the U.S. economy. The
continued uncertainty with regard to eventual congressional
action on tax extenders is undermining the effectiveness of
these incentives and stands as a needless barrier to
additional job creation and economic growth in the private
sector.
Providing taxpayers with a predictable planning outlook as
it pertains to tax rules is conducive to increased private
sector investment and economic activity. Accordingly, we
respectfully ask that you act to retroactively extend these
expired tax provisions through 2019 on the first appropriate
legislative vehicle.
We sincerely appreciate your attention to this matter, and
stand ready to work with you to achieve this important
objective.
Sincerely,
Advanced Biofuels Association; Advanced Biofuels Business
Council; Air Conditioning Contractors of America (ACCA); Air-
Conditioning, Heating, and Refrigeration Institute; Algae
Biomass Organization; Alliantgroup; American Biogas Council;
American Council of Engineering Companies; American Council
On Renewable Energy (ACORE); American Horse Council; American
Public Gas Association; American Public Transportation
Association; American Short Line and Regional Railroad
Association; American Soybean Association; American Trucking
Associations; American Veterinary Medical Association;
Association of American Railroads; Biomass Power Association;
Biotechnology Innovation Organization; Business Council for
Sustainable Energy; CCIM Institute; Citizens for Responsible
Energy Solutions; Coalition for Energy Efficient Jobs &
Investment; Coalition for Renewable Natural Gas (RNG
Coalition); Community Transportation Association of America;
Copper Development Association; Directors Guild of America;
E2 (Environmental Entrepreneurs); Education Theatre
Association EDTA; Electric Drive Transportation Association;
Energy Recovery Council; Fuel Cell and Hydrogen Energy
Association; Growth Energy; and Hearth, Patio & Barbecue
Association.
Independent Electrical Contractors; Independent Film and
Television Alliance; Independent Fuel Terminal Operators
Association; Institute of Real Estate Management;
NAESCO (National Association of Energy Service Companies);
National Association of Home Builders; NAHB; National
Association of REALTORS; National Association of
State Energy Officials (NASEO); National Association of
Truckstop Operators; National Biodiesel Board; National Corn
Growers Association; National Council of Farmer Cooperatives;
National Employment Opportunity Network (NEON); National
Hydropower Association; National Lumber and Building Material
Dealers Association; National Propane Gas Association;
National Railroad Construction and Maintenance Association;
National Real Estate Investors Association; National
Renderers Association; National Thoroughbred Racing
Association; NEFI; NGVAmerica; Pellet Fuels Institute;
Renewable Fuels Association; South West Transit Association;
The American Society of Cost Segregation Professionals; The
Railway Engineering-Maintenance Suppliers Association
(REMSA); The Sheet Metal and Air Conditioning Contractors
National Association (SMACNA); Tile Roofing Industry
Alliance; U.S. Canola Association.
Mr. GRASSLEY. Mr. President, another very important point I want to
make has to do with the question about whether an extender package
should be offset or not. Around here, the word ``offset'' means if you
have tax provisions that might lose revenue, then do you have other
revenue coming in to take its place? The House has decided that is what
you should do--pay as you go, or PAYGO, as they might call it. It is a
rule of the House.
I have a long record of promoting budget responsibility, and I am as
concerned about the deficit and debt as anyone. However, we also have
bipartisan precedent for treating the extension of temporary tax
policy, like these extenders, just as we treat the extension of annual
spending policy. In neither case do we need offset for such extensions.
In other words, it is all right to spend more money or continue to
spend the same amount of money after a program has expired, and you
don't have to offset it when you have tax law that has been on the
books for a couple of decades, and it is sunset. Why should you have to
sunset that? There are a few people around here who think it is all
right to spend money without offsets, but it is wrong to do tax policy
unless you have offsets.
There are a few specific items in this legislation that I want to
take time to mention. Significant work has already been done to provide
long-term solutions on two extenders--the short line railroad tax
credit and the biodiesel tax credit.
The bill I am introducing extends those credits at their current
levels for 2018 and 2019. I want my colleagues to
[[Page S1599]]
know that I still remain committed to enacting the compromises that
several of our colleagues and I worked with the stakeholders to
achieve.
The bill also includes an extension of a proposal adopted last
Congress that would extend the 7.5-percent floor for itemized
deductions of medical expenses. Without this provision, the floor on
deductions will be 10 percent for 2019. This means that without this
provision, individuals with chronic illnesses and high medical expenses
would have to pay more for healthcare before that excess can be
deducted in the expenses on their 2019 tax returns.
This proposal is a very important priority for one of our best
colleagues, Senator Collins. She deserves a lot of credit for getting
what has turned into a bipartisan proposal to help many Americans
facing catastrophic medical expenses.
Finally, the legislation includes provisions to assist Americans who
have been affected by natural disasters in 2018. This package includes
proposals that we have adopted in prior years to help Americans recover
from natural disasters across our country. For example, the package
would allow increased access to retirement funds and relax restrictions
around charitable giving. I am sure everyone here would like to help
people affected by these natural disasters as soon as we are able to.
I don't want my comments today to imply that each tax extender should
be permanently extended, but the right thing to do now is to provide
extensions for at least 2018 and 2019. In the long term, Congress needs
to decide if these provisions should be allowed to expire or if they
should be phased out or if they should be made permanent as current tax
policy or modified in some way beyond expiring, phasing out, or being
made permanent.
Those decisions need to be made after we resolve the short-term
crisis caused by the current lapse. These provisions have support of
Members on both sides of the aisle. For people who think that things
around here get done only with Republicans fighting Democrats or vice
versa, these provisions have wide bipartisan support.
There is a solid foundation for a long-term package consisting of
many of these provisions in one form or another. We need to get past
today so that we can chart the course for a reliable future for the tax
extenders and give business some certainty.
Just as Phil wants to stop living the same day over and over again, I
think all of us want to break the cycle of short-term extensions of, in
many cases, very popular tax policy. The legislation I introduce today
with the ranking member, Senator Wyden of Oregon, is a critical first
step toward helping taxpayers complete their 2018 returns and helping
us begin work on a long-term solution to temporary tax policy.
I have asked our majority leader to rule XIV this bill onto the
calendar, and I urge the House to send us a tax bill to address the
extenders without further delay.
Just this morning, I had discussions with Iowa Congressmen of both
political parties about this issue to contact the leadership of the
House and the leadership of the Ways and Means Committee on the
importance of moving legislation since the Constitution doesn't allow
the Senate to move tax legislation in the first place.
______
By Mr. CARPER (for himself, Mrs. Capito, Mr. Peters, Mr. Tillis,
Ms. Stabenow, Mr. Rubio, Mr. Merkley, Mr. Gardner, Mr. Reed,
Ms. Murkowski, Mrs. Shaheen, Mr. Burr, Mr. Bennet, Mr. Manchin,
Mr. Schumer, Mr. Udall, Mr. Heinrich, Ms. Hassan, Mrs.
Gillibrand, and Ms. Baldwin):
S. 638. A bill to require the Administrator of the Environmental
Protection Agency to designate per- and polyfluoroalkyl substances as
hazardous substances under the Comprehensive Environmental Response,
Compensation, Liability Act of 1980, and for other purposes; to the
Committee on Environment and Public Works.
Mr. CARPER. Mr. President, during the debate on the nomination of
Andrew Wheeler to be Administrator of the Environmental Protection
Agency I came to the floor to express concerns on a number of issues,
including EPA's regulation of per- and poly-fluorinated alkyl
substances--PFAS.
PFAS are a class of man-made chemicals developed in the 1940s. PFAS
can be found across industries in many products, including food
packaging, nonstick pans, clothing, furniture, and firefighting foam
used by the military. These chemicals have a long and tragic history--
suffice it to say that their widespread use resulted too many Americans
without access to safe drinking water.
This very issue is a matter of some controversy as EPA has failed to
provide meaningful and swift action on these chemicals under this
administration. That is why I am here today to introduce a bipartisan
bill to designate PFAS chemicals as hazardous substances under the
Federal superfund law. The Carper-Capito-Peters-Tillis-Stabenow-Rubio-
Merkley-Gardner-Reed-Murkowski-Shaheen-Burr-Bennet-Manchin bill will
force EPA to begin the rulemaking process to protecting Americans from
overexposure to these harmful chemicals and hold polluters accountable.
It is very similar to legislation that has already been introduced in
the House of Representatives by Congresswoman Debbie Dingell.
In his confirmation hearing, Andrew Wheeler said, and I quote:
It is these Americans that President Trump and his
Administration are focused on, Americans without access to
safe drinking water or Americans living on or near hazardous
sites, often unaware of the health risks they and their
families face. Many of these sites have languished for years,
even decades. How can these Americans prosper if they cannot
live, learn, or work in healthy environments? The answer is
simple. They cannot. President Trump understands this and
that is why he is focused on putting Americans first.
One would think those words might mean that there could be some
common ground at least on addressing PFAS. After all, who wouldn't
agree that we should be acting with urgency to address contamination
from these hazardous chemicals?
According to one 2017 study, drinking water supplies for 6 million
U.S. residents have exceeded the EPA's lifetime health advisory for
these chemicals.
Another 2018 study performed by the Environmental Working Group
reports that up to 110 million Americans could have PFAS-contaminated
water.
In 2016, the Department of Defense announced that it was assessing
the risk of groundwater contamination from firefighting foam at dozens
of fire and crash testing sites across the country. It is likely that
they are all contaminated.
Just last year, the town of Blades in my home State of Delaware
alerted its 1,250 residents, as well as businesses and schools that use
public water, to stop using public water for drinking an cooking
because PFAS chemicals were present at nearly twice the Federal health
advisory level. Reportedly, 36 of 67 sampled groundwater wells on Dover
Air Force Base showed dangerously high levels of PFOA and PFOS. And it
is not just Delaware--contamination is widespread, in red States and
blue States, in small water systems and large ones, on military sites
and in residential areas, from Maine to Alaska.
It is essential that we legislate to require EPA to designate PFOA
and PFOS as ``hazardous substances,'' which means that polluters could
be held responsible for cleaning it up under the superfund law. In its
recently released PFAS Action Plan, EPA has said again that it would
issue this proposal in the future but did not indicate how long it will
take to complete. Unfortunately, it has no sense of urgency to address
these emerging contaminants and to protect American's from harmful
levels of contamination.
EPA had an opportunity to take action to address PFAS chemicals in a
real and comprehensive way; however, time and again, it has failed to
move in an expeditious and meaningful way. That is why this bill is so
important. Designating these chemicals as hazardous substances will, at
a minimum, start the process to getting these contaminated sites
cleaned up. This not the silver bullet to the broader contamination
problems, but it is a start.
______
By Mr. CARPER (for himself, Mr. Merkley, Mr. Markey, Mr. Coons,
Mr. Whitehouse, Mr. Jones, Mr. Schatz, Mr. Booker, Mr. Schumer,
Mr. Bennet,
[[Page S1600]]
Mr. Reed, Mr. Van Hollen, Ms. Stabenow, Mr. Murphy, Mr.
Manchin, Mr. Heinrich, Ms. Baldwin, Mr. Brown, Mrs. Murray,
Mrs. Feinstein, Ms. Klobuchar, Mr. Blumenthal, Mrs. Gillibrand,
Mr. Cardin, Mr. Warner, Mr. Leahy, Ms. Rosen, Ms. Smith, Mr.
Wyden, Mrs. Shaheen, Ms. Hirono, Ms. Duckworth, Mr. Durbin, Ms.
Hassan, Mr. Casey, Mr. Peters, Mr. Menendez, Ms. Cortez Masto,
Mr. Sanders, Mr. Kaine, Mr. Tester, Ms. Harris, Ms. Cantwell,
Ms. Sinema, Ms. Warren, Mr. King, and Mr. Udall):
S.J. Res. 9. A joint resolution calling on the United States and
Congress to take immediate action to address the challenge of climate
change; to the Committee on Environment and Public Works.
Mr. SCHUMER. Mr. President, I am joined this morning by a group of my
Democratic colleagues to talk about the greatest threat facing our
country and our planet--climate change. Despite the gravity and scale
of the problem, at no time in the past 5 years have Republicans brought
even a single bill to the floor to meaningfully address climate change.
They brought CRAs to the floor to repeal critical environmental
protections that limited the emission of greenhouse gases like methane.
They brought legislation to open up more Federal lands to oil drilling,
but they haven't brought forward a single meaningful bill to address
climate change.
Ironically, the first bill Leader McConnell would bring to the floor
on climate change is a bill that he and his party intend to vote
against. What a ridiculous sham; what a pathetic political stunt. It
would be a stunt on its own from a leader who just a month ago claimed
he didn't bring sham bills to the floor, but it is an even greater
stunt because they have nothing positive to say about dealing with this
climate crisis.
So today, Democrats will be introducing a resolution to steer the
direction of this conversation about climate change back in the right
direction--all 47 Democrats, every single one.
We are introducing a resolution that affirms three simple things:
First, climate change is real; second, climate change is changed by
human activity; and third, Congress must act immediately to address
this problem. These are three simple things--three things that the vast
majority of the American people agree with. Two are plain facts, and
the third is just a statement that Congress should take action in light
of those two facts.
Our resolution does not prescribe what action we should take. It
doesn't say that someone has to be for this solution or that solution.
It simply states that climate change is happening, and we ought to do
something about it. It is like saying that opioid abuse is a problem,
and we should do something. Surely every Senator agrees with that.
In an ideal world, every single Republican Senator would sign on to
our climate change resolution because there should be nothing
controversial about it at all. But because one political party in
America largely denies the science or, as I am sure my colleague from
Rhode Island will address, is so in the pocket of Big Oil that it
refuses to admit the severity of it, I suspect many of our Republican
colleagues will not sign on, and what a shame--what a shame--that would
be. At least the American people will know which of their Senators
denies the overwhelming consensus of the scientific community.
So if and when Leader McConnell moves to proceed to the Green New
Deal, Democrats will demand a vote on our resolution, and we will see
if Leader McConnell is so eager to take that vote.
Again, I have asked him every day; I asked him earlier this morning:
Leader McConnell, do you believe climate change is real? Leader
McConnell, do you believe it is caused by human activity? And, Leader
McConnell, do you believe Congress has to act to deal with climate
change? We have simply heard silence from the leader and from just
about every other Republican so far.
So we are going to push this resolution, and we hope the American
people will let their Senators who are not on this resolution know that
they should be on it. It is the first step to moving something in a
positive direction because we intend to go on offense on climate.
______
By Mr. UDALL (for himself, Ms. Collins, Mrs. Shaheen, and Ms.
Murkowski):
S.J. Res. 10. A joint resolution relating to a national emergency
declared by the President on February 15, 2019; to the Committee on
Armed Services.
Mr. UDALL. Thank you for the recognition, Madam President.
Today I rise to call on this body to defend the Constitution, to
protect the separation of powers, and to safeguard Congress's role as a
coequal branch of government.
Today I am introducing a bipartisan resolution with my Senate
colleagues to terminate the President's declaration of a national
emergency to build his border wall.
My partners in this effort include Senator Collins, who is with me
today. She will be here momentarily. Also partners are Senator
Murkowski and Senator Shaheen.
I just want to say to Senator Collins that I commend her on her
principled stance and on standing up for the Constitution.
The vote we will take on this resolution is historic. This is no
longer about the President's wall. This is not about party. This is not
about protecting the very heart of our American system. This is about
protecting the very heart of our American system of governance.
Congress--and only Congress--holds the power of the purse. Article I,
section 9 of the Constitution clearly states: ``No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law.''
The Constitution is absolutely clear.
Congress's power to make spending decisions is very clear. There is
no ambiguity. Deciding how to spend public funds is among our most
fundamental powers and responsibilities under the Constitution. The
Founders gave this power to the legislative body, not the executive, to
ensure there is a broad support for how public funds are spent.
Consequential and far-reaching decisions about spending taxpayer
money are not left to one person, not even the President.
This body has rejected the President's request to give him $5.7
billion for his wall along the southern border with Mexico. On February
14, not 2 weeks ago, we passed the Consolidated Appropriations Act of
2019 by a vote of 83 to 16. That compromise bill did not include the
$5.7 billion the President wanted to build his wall.
Whether you believe Congress should fund the President's wall is not
at issue. This is a question about the strength of the rule of law in
this country and about the separation of powers, which forms the
foundation of our American government.
The President's declaration of a national emergency is an end-run
around Congress's power to appropriate--plain and simple. To quote
Senator Collins, the President is ``usurping congressional authority.''
We are the representatives of the people. The people do not want to
spend $5.7 billion on the President's wall, and we must protect their
will.
Let's be clear. This emergency declaration has serious implications
for States all across the country. To build this wall, the White House
will raid $3.6 billion from the Department of Defense's military
construction budget and $2.5 billion from that Department's drug
interdiction program, but the White House apparently failed to realize
there are only about $80 million in the drug interdiction account. So
we should be prepared for a raid on other accounts or taking even more
from military construction funding.
These are military construction funds that Congress already has
appropriated for specific projects necessary to support the national
security priorities of the United States. I am privileged to serve on
the Appropriations Committee. I understand the hard and careful work
that goes into these funding decisions.
From my home State of New Mexico, Congress allocated some $85 million
to construct a formal training unit at Holloman Air Force Base in the
south-central part of New Mexico for unmanned aerial vehicles. This
investment in technology tracks terrorists
[[Page S1601]]
and protects our national security. We allocated $40 million to the
White Sands Missile Range to build an information systems facility
badly needed for next-generation research and development activities at
the range. Both of these projects were vetted over several years and
deemed important to our national security.
New Mexico is not alone. Many States' military bases and regional
economies will be impacted. Colorado, for example, is at risk of losing
almost $100 million for construction projects at Fort Carson near
Colorado Springs. Ohio risks $61 million for the first installment for
building at the National Air and Space Intelligence Center at Wright-
Patterson Air Force Base.
Military construction projects totaling $210 million are at risk in
Florida, $520 million in Texas, $81 million in Utah, and the list goes
on and on. Projects in every corner of the country will be impacted.
According to the 1976 Senate report from the National Emergencies
Act, the President's emergency power may ``be utilized only when actual
emergencies exist.'' As a border Senator, I am here to tell you that
there is no actual national security emergency at our southern border
necessitating a massive wall along the southern border, as this body
has already determined. This is a matter where the President and
Congress have disagreed and the President is trying to overrule
Congress by fiat.
A bipartisan group of 58 former national security officials are
sounding the alarm. They write: ``Under no plausible assessment of the
evidence is there a national emergency today that entitles the
president to tap into funds appropriated for other purposes to build a
wall at the southern border.''
The evidence speaks for itself. The number of border apprehensions
has decreased dramatically. Since the early 2000s, southern border
apprehensions have dropped 81 percent. The number of apprehensions at
the end of fiscal year 2017 was the lowest it has been since 1971--a
46-year low. We have the lowest number of undocumented immigrants in
our country that we have had in over a decade.
The Pew Research Center estimated recently that the total number of
undocumented immigrants residing in the United States is far less than
since 2004. That is a 14-year low. And more people emigrate to Mexico
from the United States than immigrate from Mexico to here. That is
right. We have a negative net migration rate with Mexico.
I am one of the four States that border Mexico--one of the four
States that will be the most directly affected by a wall. I know for an
absolute fact that there is no national security emergency along my
State's border with Mexico. It is quite the opposite.
New Mexico's border communities are thriving. International commerce
is thriving. Our multicultural communities are thriving. Crime rates
are low.
A wall like the President wants would be disastrous for a State like
New Mexico. It will seize away private property and carve up family
ranches, farms, and homesteads. It will harm the beautiful but fragile
environment there on the border.
Again, whether you support the President's wall is not at issue on
this vote. As Senator Tillis put it in an op-ed in the Washington Post,
``I support President Trump's vision on border security. But I would
vote against the emergency.''
Another Senate Republican Senator recently said, ``Congress has been
ceding far too much power to the executive branch for decades. We
should use this moment as an opportunity to start taking power back.''
Over 20 former Republican Senators and Representatives were compelled
to pen a letter opposing the emergency declaration. They state: ``It
has always been a Republican fundamental principle that no matter how
strong our policy preferences, no matter how deep our loyalties to
presidents and party leaders, in order to remain a constitutional
republic we must act within the borders of the Constitution.''
The time to act is now. Litigation has been filed, but Congress
should resolve the issue of our own constitutional authority and not
wait for the courts.
Let me repeat. The vote we will take will be historic. It is
imperative that all of us--Republican and Democrat--protect and defend
our Constitution and that we protect and defend the checks and balances
that unequivocally place the power of the purse with Congress and that
we affirm our powers--powers that are separate from the President's.
Our oath is to uphold the Constitution, and the Constitution is
clear. The Constitution does not empower the President to raid money by
decree just because Congress has already said no.
I will vote to terminate the President's declaration of the national
emergency to build his wall, and I will urge everyone in this Chamber
to protect our constitutional prerogative and to do so as well.
Ms. COLLINS. Mr. President, I rise today to speak on the resolution
that I am joining Senator Udall in introducing. It would reverse the
President's ill-advised decision to declare a national emergency and
commandeer funding provided for other purposes by Congress and instead
redirect it to construct a wall on our southern border.
I thank Senator Udall for his leadership and also recognize the
support we have received from our cosponsors, Senator Murkowski and
Senator Shaheen.
Let me be clear. The question before us is not whether to support or
oppose the wall. It is not whether to support or oppose President
Trump. Rather, it is this: Do we want the executive branch now or in
the future to hold a power that the Founders deliberately entrusted to
Congress?
It has been said that Congress's most precious power is the power of
the purse set out in plain language in article I, section 9 of our
Constitution. It reads as follows: ``No money shall be drawn from the
Treasury but in consequence of Appropriations made by law.''
Alexander Hamilton, in Federalist 72, made clear the Founders' view
that only the legislative branch commands this power, not the judiciary
and not the executive. James Madison, in Federalist 58, called the
power of the purse ``the most complete and effectual weapon with which
any constitution can arm the [ . . . ] representatives of the people.''
Congress's power was jealously guarded in the early days of our
Republic. No less an authority on our constitutional framework than
Supreme Court Justice Joseph Story, in his famous ``Commentaries,''
explained that ``[i]f it were otherwise, the executive would possess an
unbounded power over the public purse of the nation, and might apply
all its monied resources at his pleasure.''
Throughout our history, the courts have consistently held that ``only
Congress is empowered by the Constitution to adopt laws directing
monies to be spent from the U.S. treasury.''
I strongly support protecting the institutional prerogatives of the
U.S. Senate and the system of checks and balances that is central to
the structure of our government.
I support funding for better border security, including physical
barriers where they make sense. I understand the President is
disappointed that the funding he requested did not pass, but the
failure of Congress to pass funding in the amount the President prefers
cannot become an excuse for the President to usurp the powers of the
legislative branch.
This is not the first time I have made this argument against
Executive overreach. In 2015, I authored the Immigration Rule of Law
Act, legislation that would have provided a statutory basis for the
Dreamer population, while rolling back President Obama's 2014 Executive
orders expanding that program.
As I explained at the time, even though I supported comprehensive
immigration reform and was disappointed that it had not passed, I
rejected the notion that its failure could serve as the justification
for President Obama to implement by Executive fiat that which Congress
had refused to pass, regardless of the wisdom of Congress's decision.
I would now like to turn to a discussion of the National Emergencies
Act. This act was passed in 1976 to standardize the process by which
the President can invoke national emergency powers and Congress can
terminate the declaration through a joint resolution such as the one we
are introducing today.
[[Page S1602]]
The act is procedural in nature. It lays out the process the
President must follow to declare a national emergency but does not
provide the President with any additional powers. Instead, it requires
the President to specify where, in existing law, he has been granted
the authority for the powers he intends to exercise.
By itself, the National Emergencies Act does not give the President
the power to repurpose billions of dollars to build a wall. The
President must look elsewhere for that authority.
In his declaration, the President cites the authority provided by
title 10, section 2808 of the U.S. Code, which relates to
``Construction authority in the event of a declaration of war or
national emergency.'' But that authorization applies only to ``military
construction projects'' that are ``necessary to support [the] use of
the armed forces.'' I do not believe this provision can be fairly read
to bootstrap the presence of troops along the southern border into the
authority to build a wall as a military construction project.
The question isn't whether the President can act in an emergency but
whether he can do so in a manner that would undermine the congressional
power of the purse.
Here, I think we need a better understanding of what should qualify
as an emergency. One place we could turn is to a five-part test
originally developed by the Office of Management and Budget in 1991,
under former President George Herbert Walker Bush, to determine whether
requested funding merited an ``emergency spending'' designation under
our budget rules.
Under that test, a spending request was designated as an
``emergency'' only if all five of the following conditions were met:
First, expenditures had to be necessary; second, the need had to be
sudden, coming into being quickly, not building up over time; third,
the need had to be urgent; fourth, the need had to be unforeseen; and
fifth, the need could not be permanent.
I raise this test only by way of analogy, but it is fair to say that
whether or not you agree with the President that more should be done to
secure the southern border--and I do agree with the President's goal--
his decision to fund a border wall through a national emergency
declaration would not pass this five-part test.
The President's declaration also has practical implications for the
military construction appropriations process, as my colleague has
pointed out.
Last year, in testimony before the Appropriations Committee, the
Department of Defense said that the President's budget request for
military construction funding was crucial to support our national
defense, including construction projects to improve military readiness
and increase the lethality of the force. This includes missile defense,
improved facilities in Europe to deter Russian aggression, and
infrastructure to operationalize the F-35 stealth fighter.
This also included several important efforts at the Portsmouth Naval
Shipyard in Maine that are vital to the Navy conducting timely
maintenance and refueling of our Nation's submarines. Shifting funding
away from these vital projects is shortsighted and could have very real
national security implications.
We must defend Congress's institutional powers, as the Founders hoped
we would, even when doing so is inconvenient or goes against the
outcome we might prefer.
The gridlock we have experienced on difficult issues like border
security and immigration reform is not simply a failure to get our work
done but a reflection of the fact that we have yet to reach a
consensus.
The President's emergency declaration is ill-advised precisely
because it attempts to shortcut the process of checks and balances by
usurping Congress's authority. This resolution blocks that overreach,
and I hope, regardless of our colleague's position on the construction
of the border wall, that we will join together to assert Congress's
constitutional authority in the appropriations process.
I urge our colleagues to support this important resolution.
Mr. UDALL. Would the Senator yield?
Ms. COLLINS. I would be happy to.
Mr. UDALL. I just want to say, because we have both been here for a
bit talking on the floor about this, I want to thank Senator Collins
for standing up for principle. I want to thank her for standing up for
our Constitution. It is a real honor to join her in this resolution of
disapproval.
I also, as she just did, thank the two other Senators who are joining
us, Senator Murkowski and Senator Shaheen. I thank the Senator very
much.
Ms. COLLINS. Mr. President, I would thank the Senator for his
gracious comments. As always, it has been a great pleasure to work with
him, and I know he cares deeply about the constitutional principle that
brings us to the floor today. Let us defend the Constitution.
____________________