[Congressional Record Volume 167, Number 91 (Tuesday, May 25, 2021)]
[Senate]
[Pages S3413-S3416]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ENDLESS FRONTIER ACT--Continued
The PRESIDING OFFICER (Ms. Hassan). The Senator from Rhode Island.
Mr. WHITEHOUSE. Madam President, before I begin, let me just say a
word of thanks to my two colleagues from Oklahoma for this moment that
we have had on the Senate floor.
I was privileged to be waiting to give my remarks to hear them speak,
and I thought this was a wonderful moment. We have our challenges
around here, but if we had more moments like this, we would get through
our challenges better. I congratulate and thank both of my colleagues.
U.S. Supreme Court
Madam President, there is a scheme afoot, a scheme I will be talking
about in weeks ahead--a long-running, rightwing scheme to capture the
Supreme Court.
Special interests are behind the scheme. They control it through dark
money--hundreds of millions of dollars in anonymous hidden spending. We
will dwell in later speeches on how the scheme operates.
This first speech seeks its origins. The scheme is secret, and
because of its secrecy, it is hard to know exactly where the story
should begin.
The one place you could begin is with a corporate lawyer--the
Virginian Lewis Powell. An authorized biography of Lewis Powell by his
fellow Virginian, renowned UVA law professor John Jeffries, reveals
Powell to be a tough and incisive lawyer, willing and able to make
sharp, even harsh, decisions, but a man of courtly and decent matters,
well settled in the White male social and corporate elite of Richmond,
VA. There he developed his legal and business career through the 1950s
and 1960s.
A successful corporate law practice often entailed joining corporate
boards. Richmond was a home to Big Tobacco, and Powell's legal career
led him on to Richmond's tobacco and other corporate boards.
Richmond was Virginia's sibling rival to Charlottesville, which could
boast of Thomas Jefferson's nearby Monticello, his renowned University
of Virginia, and all the cultural and academic vibrancy bubbling around
that great university. Richmond--Richmond was the working sibling,
hosting the State's capitol and its political offices and serving as
its corporate center.
Powell was an ambitious Richmond corporate lawyer, and the turbulence
of the 1960s was broadly distressing to America's corporate elite. The
civil rights movement disrupted Jim Crow across the South, drawing out
and exposing to the Nation the racist violence that had long enforced
the social and legal norm of segregation and upsetting America's all-
White corporate suites and boardrooms.
Anti-war protesters derided Dow Chemical Company's manufacture of
napalm and scorned the entire military-industrial complex. Women's
rights protesters challenged all-male corporate management structures.
The environmental movement protested chemical leaks, toxic products,
and the poisons belching from corporate smokestacks. Public health
groups began linking the tobacco industry to deadly illnesses, and lead
paint companies to brain damage in children.
Ralph Nader criticized America's car companies for making automobiles
that were ``Unsafe at Any Speed'' and causing carnage on America's
highways. America's anxious corporate elite saw Congress respond with
new and unwelcome laws and saw courts respond with big and unwelcome
verdicts. Something had to be done.
Powell's prominence in Virginia's civic, legal, social, and corporate
circles had brought him attention in Washington, DC. And a new client
of his, the Washington, DC-based U.S. Chamber of Commerce, asked Powell
for his help. The Chamber commissioned from Powell a secret report, a
strategic plan for reasserting corporate authority over the political
arena.
The secret Powell report, titled ``Attack on American Free Enterprise
System,'' was telling. It was telling, first, for the apocalyptic
certainty of its tone. Powell's opening sentence was: ``No thoughtful
person can question that the American system is under broad attack.''
By that, he meant the American economic system, but that assertion was
footnoted with the parallel assertion that--and I am quoting him
again--``The American political system of democracy under the rule of
law is also under attack.''
This was, Powell asserted, ``quite new in [American history].''
``Business and the enterprise system are in deep trouble,'' he wrote,
``and the hour is late.''
The secret Powell report was an alarm.
The report is populated with liberal bogeymen: the bombastic lawyer
William Kunstler; the popular author of ``The Greening of America,''
Charles Reich; the consumer advocate Ralph Nader, whom Powell said
there should be, and I am quoting here, ``no hesitation to attack.''
Against them, Powell set establishment defenders like columnist
Stewart Alsop and conservative economist Milton Friedman. Powell
cloaked the concerns of corporate America as concerns of ``individual
freedom,'' a rhetorical framework for corporate political power that
persists to this day.
The battle lines were drawn. Indeed, the language in the Powell
report is the language of battle: ``attack,'' ``frontal assault,''
``rifle shots,'' ``warfare.'' The recommendations are to end compromise
and appeasement--his words: ``compromise'' and ``appeasement''--to
understand that, as he said, ``the ultimate issue may be survival''--
and he underlined the word ``survival''
[[Page S3414]]
in his report--and to call for ``the wisdom, ingenuity and resources of
American business to be marshaled against those who would destroy it.''
Well, for this, you had to have a plan, and the Powell plan was to go
big. Here is what he said:
``Strength lies in organization, in careful long-range planning and
implementation, in consistency of action over an indefinite period of
years, in the scale of financing available only through joint effort,
and in the political power available only through united action and
national organizations.''
Powell recommended a propaganda effort staffed with scholars and
speakers, a propaganda effort to which American business should devote
``10 percent of its total advertising budget,'' including an effort to
review and critique textbooks, especially in economics, political
science, and sociology.
``National television networks should be monitored in the same way
that textbooks should be kept under constant surveillance,'' he said.
Corporate America should aggressively insist on the right to be heard,
on ``equal time,'' and corporate America should be ready to deploy, and
I am quoting him here, ``whatever degree of pressure--publicly and
privately--may be necessary.'' This would be ``a long road,'' Powell
warned, ``and not for the fainthearted.''
In his section entitled ``The Neglected Political Arena,'' Powell
recommended using political influence to stem ``the stampedes by
politicians to support any legislation related to `consumerism' or to
the `environment.' '' And, yes, Powell put the word ``environment'' in
derogatory quote marks in the original.
``Political power,'' Powell wrote, ``is necessary; . . . [it] must be
assiduously cultivated; and . . . when necessary . . . must be used
aggressively and with determination.'' He concluded that ``it is
essential [to] be far more aggressive than in the past,'' with ``no
hesitation to attack,'' ``not the slightest hesitation to press
vigorously in all political arenas,'' and no ``reluctance to penalize
politically those who oppose'' the corporate effort. In a nutshell, no
holds barred.
And then came the section of the secret report that may have launched
the scheme to capture the court. It is called ``Neglected Opportunity
in the Courts.'' This section focused on what Powell called
``exploiting judicial action.'' He called it an ``area of vast
opportunity.''
He wrote: ``Under our constitutional system, especially with an
activist-minded Supreme Court''--I will intervene to say, of course, we
have today, as a result of the scheme, the most activist-minded Supreme
Court in American history, but back to his quote--``especially with an
activist-minded Supreme Court, the judiciary may be the most important
instrument for social, economic and political change.''
Powell urged that the Chamber of Commerce become the voice of
American business in the courts, with a ``highly competent staff of
lawyers,'' if ``business is willing to provide the funds.'' He
concludes: ``The opportunity merits the necessary effort.''
The secret report may well have been the single most consequential
piece of writing that Lewis Powell ever did in a long career of
consequential writings. The tone and content of the report actually
explain a lot of decisions in his future career. Yet this secret report
received no attention--not even a passing mention--in Professor
Jeffries' detailed, authoritative, and authorized Powell biography.
The secret chamber report was not disclosed to the U.S. Senate in
Senate confirmation proceedings when, shortly after delivering his
secret report to the U.S. Chamber of Commerce, Lewis Powell was
nominated to the U.S. Supreme Court by President Richard Nixon.
The secret report was dated August 23, 1971. Two months later, on
October 22, Nixon nominated Powell to the Supreme Court. Lewis Powell
was sworn in as an Associate Justice of the Supreme Court on January 7,
1972, less than 6 months after this secret report was delivered to the
chamber.
To be continued.
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. PORTMAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Ohio.
Safeguarding American Innovation Act
Mr. PORTMAN. Madam President, I rise today in strong support of the
Safeguarding American Innovation Act. This is legislation that has been
included in the substitute amendment to the bill we are working on this
week, called the Endless Frontier Act, or as it has now been called,
the U.S. Innovation and Competition Act.
Well, if our goal is to increase U.S. competitiveness and encourage
more U.S. innovation, we have to not only invest in research and
innovation, we have to be sure that we are keeping our investment in
research and intellectual property from being taken by our competitors
and used against us. That is what this legislation does.
By the way, that is just common sense, or so you would think, but
that is not what we found during a bipartisan investigation during the
Permanent Subcommittee on Investigations. Instead, during a yearlong
inquiry, we uncovered that our government and our research institutions
over the last couple of decades have permitted China to take advantage
of a lax U.S. approach to safeguarding our taxpayer-funded innovation,
be it in our college campuses or in our research labs, nor was law
enforcement, principally the FBI, doing anything significant to combat
this threat. In fact, at our hearing on the report about 18 months ago,
the FBI admitted in sworn testimony that they have been asleep at the
switch, essentially.
Our PSI investigation detailed the rampant theft of U.S. taxpayer-
funded research and intellectual property by China by way of their so-
called China recruitment programs, mainly the Thousand Talents Plan.
China uses these plans to systematically find promising researchers and
promising research that China is interested in, and they recruit those
researchers.
These programs have not been subtle. The Thousand Talents Plan is
perhaps the best understood of these programs, although there are
actually a couple hundred of them. Our PSI investigation documented how
the Thousand Talents Plan was used to target and steal taxpayer-funded
research and IP for at least two decades in this country, and much of
that research and innovation was taken from our labs to China and went
directly into fueling the rise of the Chinese economy and the Chinese
military.
While this is what China has done and continues to do, this is really
about us. We have to get our own house in order. Specifically, we found
that the Chinese Government has targeted promising U.S.-based research
and researchers. Often, this research is funded by U.S. taxpayers. We
spend about $150 billion a year on taxpayer-funded research in places
like the National Institutes of Health, the National Science
Foundation, and the Department of Energy for basic science research.
And with this legislation we are talking about tonight on the floor,
the Endless Frontier Act, we are talking about a huge increase in the
amount of Federal spending for this kind of research.
The annual $150 billion that has gone out over the years has been a
good investment of taxpayer dollars, I believe. Why? Because it has led
to some amazing things, from cures for everything from viruses to
particular kinds of cancer, to technologies that support our defense
base, to manufacturing technology that has made us more efficient as a
country. But it is not good if the U.S. taxpayer is paying for this
good research, and then China is taking it to fuel their own economic
and military rise.
China has not just stolen some of the research funded by U.S.
taxpayers; China has actually paid these grant recipients to take their
research over to China at Chinese universities--again, universities
affiliated with the Chinese Communist Party. They have been very clever
about it. They want to be sure that China is a stronger competitor
against us, and they take the research delivered from the United States
to what is referred to as shadow
[[Page S3415]]
labs in China, where they replicate the research.
Rather than pointing the finger at China, we ought to be looking at
our own government and our own institutions and doing a better job with
the things we can control. Again, let's get our own house in order. We
have made some progress in doing that.
Following our November 2019 PSI investigation I talked about and the
report we issued, in December of 2020, John Demers, the Assistant
Attorney General for National Security and head of the Justice
Department's China Initiative, announced that more than 1,000
researchers affiliated with China's military left the United States
following a crackdown on recipients of taxpayer-funded Federal grants
concealing their affiliation with China's Thousand Talents Program. One
thousand researchers left the United States.
That news followed multiple guilty pleas and a string of arrests of
academics affiliated with American universities for alleged crimes
related to concealing their participation in China's talent recruitment
programs while accepting American taxpayer funds and taking research to
China.
After two decades of allowing this activity to go on, over the past
18 months, we have finally begun to crack down. In my own State of
Ohio, in my home State, there have been some researchers who have been
arrested. However, as our investigation found and law enforcement told
us, the Federal Government is limited in the actions they can take
under current law. It is our responsibility in Congress to change that.
All of the arrests in connection with the Thousand Talents Plan have
been related to peripheral financial crimes, like wire fraud and tax
evasion, not the core issue of the conflict of commitment, conflict of
interest, the taking of American taxpayer research, and also taking
money from China. Why? Because it is not currently a crime to knowingly
hide foreign research funding on a Federal grant application, as an
example. In other words, if you are performing research funded by the
U.S. taxpayer and also being paid by China to do the same research,
there is no law that states you have to disclose that funding from
China. That is just wrong.
Since our report, the National Institutes of Health has started to
require that that information be disclosed. The NIH is alone so far in
requiring that. But even there, there is still no law requiring
disclosure.
The arrests made since our PSI report have not been about that core
issue of researchers hiding foreign funding from China and stealing our
research. So we need to change the laws so we can give our law
enforcement community the tools they need to go do the job that all of
us expect is being done.
The Safeguarding American Innovation Act goes directly to the root of
this problem and makes it punishable by law to knowingly fail to
disclose foreign funding on Federal grant applications. While this is a
criminal statute, it is really about transparency, which is a core
tenet of the U.S. research enterprise.
Our bill also makes other important changes informed by our
investigation. It requires the Office of Management and Budget, OMB, in
the executive branch to streamline and coordinate grant-making between
the Federal Agencies so there is more continuity, accountability, and
coordination when it comes to tracking the billions of dollars of
taxpayer-funded grant money that is being distributed.
Again, the underlying legislation here in the Chamber tonight is
about more money going into research. Let's be sure that there is
transparency and that we know how it is being distributed. We found in
our investigation that this kind of coordination and transparency was
sorely lacking and long overdue.
Our legislation also allows the Department of State to deny visas to
foreign researchers coming to the United States who they know are going
to exploit the openness of our research enterprise to acquire sensitive
and emerging technologies against the national security interests of
the United States and to benefit an adversarial foreign government.
This may surprise you, but the State Department can't do that now. It
is a loophole in the law. In finalizing our language for the
substitute, we worked very closely with career State Department
employees, who were desperate to get this authority to keep, say,
members from the People's Liberation Army, who are definitely connected
with the Chinese military, from coming over here and attending
conferences where sensitive, export controlled technology is being
talked about and distributed.
Our bill also requires foreign institutions and universities to tell
the State Department whether a foreign researcher will have access to
export controlled technologies and also to demonstrate to the State
Department that they have a plan to prevent unauthorized access to any
export controlled technologies at the research institution
That is really important. It seems like basic information that the
State Department would get here, that would have been provided all
along, but it hasn't been. Providing this information as part of the
visa process should also help streamline the process for the State
Department and for these research institutions. I think it is good for
both to make sure that this is clear and we know what the rules are.
We also require increased transparency in reporting foreign gifts and
contracts at our colleges and our universities. Those schools are now
going to need to report any foreign gift or contract worth $50,000 or
more. The current threshold is $250,000. More transparency is a good
thing.
We also empower the Department of Education to work with these
universities and research institutions to ensure that this can be
complied with in a way that doesn't create undue redtape and
expenditures. That is not the idea. The idea is to have transparency
but have it be something that is efficient. But we also allow the
Department of Education for the first time to fine universities that
repeatedly fail to disclose these gifts. We have actually found that
about 70 percent of universities weren't following the current law,
partly because there was no fine. There was really no accountability.
All of the changes that I have outlined are necessary to help keep
America on the cutting edge. In order to be globally competitive, we
have to be more effective at pushing back against the specific threat
from China and from other nations, like Russia, Iran, and North Korea,
looking to steal our research and our intellectual property.
Until we start to clean up our own house and take a firmer stance
against foreign influences here in this country trying to take our
research, we are going to keep losing the innovations that we create
here, and we will be less competitive. That is why the Safeguarding
American Innovation Act is so important to be included in this bill.
I will finish by noting that this has been truly a nonpartisan
effort--not just bipartisan but nonpartisan--from the start. We wanted
to ensure that, in a thoughtful, smart, and effective way, we were
responding to the very real threat that we identified from China and
other foreign adversaries.
I want to commend my partner in our PSI investigation and cosponsor
of our legislation, Senator Tom Carper. I also want to thank the
Presiding Officer tonight for her role in this, for her contributions
and her support. I also want to say that I appreciate Senators Peters
and Schumer and their staff for working with us to finalize the
language, as well as the State Department and other officials from the
Trump administration and the Biden administration who provided
important assistance.
Safeguarding American innovation is always a good idea, but it is
particularly important in the context of the legislation before us that
provides exceptionally large amounts of Federal money for research to
make us more competitive. I support that research, but I don't want the
taxpayer funds to go in the front door and then to have the research go
out the back door to China or other adversaries. That is not what this
should be about, and thanks to this legislation being included in this
law, I feel confident that it will not be about that.
I yield back my time.
The PRESIDING OFFICER. The majority leader.
S. 1260
Mr. SCHUMER. Madam President, in a moment, I will file cloture on
both
[[Page S3416]]
the substitute amendment of the competition bill and on the motion to
proceed to the House-passed legislation to create an independent
commission to investigate and report on the attack of January 6,
setting up a potential vote this week.
On the competition bill, this legislation is the product of at least
half a dozen Senate committees, working for months--months--in a
bipartisan way. That means that every single Member of the Senate has
had their fingerprints on it in one manner or another.
The Senate has been making great progress so far this week. To borrow
an expression that might appeal to my colleague and partner from
Indiana, Senator Young, we are approaching the final straightaway of
the race. We have completed a very efficient series of votes on six
amendments this afternoon, five of which were sponsored by Republicans.
That is in addition to four amendment votes we have already held and
literally dozens--dozens--of bipartisan amendments that were added to
the bill before it even reached the floor.
This is regular order in action. Members on both sides have clamored
that we bring bills to the floor, debate them, and ask for amendments.
That is what is happening here. This is a bipartisan bill that came out
of committees with overwhelming votes--21 to 1 in Foreign Relations and
22 to 4 in Commerce, with a lot of bipartisan input in both committees
and throughout--and now we are debating it on the floor.
I believe the depth of bipartisanship on this bill reveals two
things: one, just how much of a hunger there is on both sides of the
aisle to tackle the issue of American leadership in the 21st century.
It also shows a hunger to work in a bipartisan way, and we hope that
our colleagues will understand that as we seek now to invoke cloture on
the bill after we do several more amendments.
With the finish line in sight, we need to continue working together
to see this bill through. As I said, we will consider a few more
amendments tomorrow and Thursday, including a managers' amendment,
before final passage. If both sides continue to work in good faith to
schedule amendment votes, which has been the hallmark so far, there is
no reason we can't finish the competition bill by the end of the week.
And we will look for a signal from our Republican friends that, when we
cooperate, we will move forward and not move to block or delay
unnecessarily.
Now, of this bill, again, I cannot say how important it is to the
future of America. Investing in science and innovation has been a
hallmark of why this country has led the world in economic growth, in
good-paying jobs, in creating a brighter, sunnier, happier America. Our
failure to invest could lead to a real decline--a cloudiness over
America and its future. We have to move forward, and that is why this
bill has gotten such great support. This is not a minor bill. Just
because there is not partisan fighting doesn't mean it is not one of
the most important bills we have passed in a very long time, and we
will look back in history and say that this was a moment when America
got a grip back on itself and moved forward after several years of
languishing, at best.
January 6 Commission
I am also going to move to file cloture on the motion to proceed to
the House-passed legislation to create an independent commission to
investigate and report on the attack of January 6, setting up a
potential vote this week. We all know the commission is an urgent,
necessary idea to safeguard our democracy. What happened on January 6
was a travesty--a travesty. It risked America in ways we haven't seen
in decades, maybe even in our history altogether.
In the wake of January 6, unfortunately, too many Republicans in both
Chambers have been trying to rewrite history and sweep the despicable
attack on our democracy under the rug. If people believe the Big Lie--
if they believe that this election was not on the level, spread by the
Big Lie of Donald Trump and his legions in the press--our democracy
erodes. At the core of this democracy is the belief that we vote; the
process is fair; and then whoever is fairly elected we respect as our
leader. That has not happened for the first time in a long time.
I so respect our two Republican colleagues on the other side of the
aisle who say they will vote for this proposal. I hope many more will.
We have to get it passed. Each Member of the Senate is going to have to
stand up and decide: Are you on the side of truth and accountability or
are you on the side of Donald Trump and the Big Lie?
We cannot let this lie fester. We must get at the truth. We must
restore faith in this grand, wonderful, beautiful, evolving
experiment--the greatest democracy that has ever been seen on Earth. We
can't let that go away. By sweeping all of this under the rug and by
having so many people believe the lies, we could see the Sun begin to
set on America. I hope that doesn't happen. I pray that doesn't happen.
I don't believe it will happen because I believe we will rise to the
occasion and get at the truth.
Order of Business
Madam President, now I ask unanimous consent that when the Senate
resumes consideration of S. 1260 on Wednesday, May 26, the following
amendments be called up and reported by number: Durbin, 2014; Kennedy,
1710; Sullivan, 1911; further, that at 12 noon tomorrow, Wednesday, May
26, the Senate vote in relation to the Sullivan amendment and at 2:30
in relation to the Durbin and Kennedy amendments, with no amendments in
order to these amendments prior to a vote in relation to the amendment,
with 60 affirmative votes required for the adoption, with the exception
of the Sullivan amendment, and 2 minutes of debate equally divided
prior to each vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
Cloture Motion
Mr. SCHUMER. Madam President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Schumer
substitute amendment No. 1502 to Calendar No. 58, S. 1260, a
bill to establish a new Directorate for Technology and
Innovation in the National Science Foundation, to establish a
regional technology hub program, to require a strategy and
report on economic security, science, research, innovation,
manufacturing, and job creation, to establish a critical
supply chain resiliency program, and for other purposes.
Charles E. Schumer, Jacky Rosen, Patrick J. Leahy, Brian
Schatz, Richard J. Durbin, Benjamin L. Cardin, Robert
P. Casey, Jr., Christopher A. Coons, Gary C. Peters,
Angus S. King, Jr., Sheldon Whitehouse, Chris Van
Hollen, Maria Cantwell, Mazie K. Hirono, Tammy
Duckworth, Tina Smith, Ben Ray Lujan.
Cloture Motion
Mr. SCHUMER. Madam President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Calendar No. 58,
S. 1260, a bill to establish a new Directorate for Technology
and Innovation in the National Science Foundation, to
establish a regional technology hub program, to require a
strategy and report on economic security, science, research,
innovation, manufacturing, and job creation, to establish a
critical supply chain resiliency program, and for other
purposes.
Charles E. Schumer, Jacky Rosen, Patrick J. Leahy, Brian
Schatz, Richard J. Durbin, Benjamin L. Cardin, Robert
P. Casey, Jr., Christopher A. Coons, Gary C. Peters,
Angus S. King, Jr., Sheldon Whitehouse, Chris Van
Hollen, Maria Cantwell, Mazie K. Hirono, Tammy
Duckworth, Tina Smith, Ben Ray Lujan.
____________________