[Congressional Record Volume 167, Number 212 (Wednesday, December 8, 2021)]
[Senate]
[Pages S9022-S9027]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Government Funding

  Mrs. CAPITO. Madam President, I come to the floor today to talk about 
the appropriations process for the fiscal year 2022, in particular, the 
Homeland Security bill, where I serve as ranking member of that 
subcommittee.
  Unfortunately, as I stand here today, as all of us know, in December, 
there is still no clear path for the fiscal year 2022 bills. And you 
know, that is a real shame, and I am going to talk about that.
  Every year, it is a challenge to come up with a bipartisan bill. It 
is difficult to fund the government. But every year, we manage to do 
it. The main reason being that we have agreed on certain rules--rules 
that transcend unique political situations, where both sides know that 
you are required in order to reach an agreement. We realize we have to 
give on each side.
  These rules are what Vice Chairman Shelby has been insisting we agree 
on now so we can proceed with meaningful negotiations. So I support 
Vice Chairman Shelby, and I encourage my Democrat colleagues to come to 
the table, akin to the Shelby-Leahy agreements of the past. This isn't 
a partisan demand, but, rather, an appeal that we all recognize at the 
outset what is so obviously necessary for us to achieve an outcome at 
the end of the day.
  As the ranking member of the Homeland Security Appropriations 
Subcommittee, I come today to address that bill. I have been pleased 
over the past year to work with our new chairman, Chairman Murphy, on 
our subcommittee. We have had several meetings. And, thankfully, there 
are vast areas of agreement between us on a majority of issues. I look 
forward to continuing to work with him to advance agreement for the 
FY22 Homeland Security bill.
  A full-year continuing resolution would be a massive challenge for 
the Department of Homeland Security. We know we have a continuing 
resolution going until February.
  Like all Agencies--and I argue probably more than most Agencies--DHS 
exists in a dynamic, ever-evolving threat environment, and its 
priorities and commensurate funding levels must be updated through the 
Appropriations Committee.
  Further, the DHS is personnel heavy, and we need to ensure that 
funding keeps up with the salaries and the benefits of the public 
servants in this Department who are striving every day to keep our 
Nation safe.
  We also need to invest in our Coast Guard and our Coast Guard 
readiness, which is a part of this bill, and ensure that its important 
procurement efforts remain on schedule. I think we have great agreement 
on all of that.
  So in the midst of the holiday season, we all know the critical work 
of the men and women of the TSA. And more recently, we, as a nation, 
are relying more and more on the constant diligence of the 
Cybersecurity and Infrastructure Security Agency--CISA--otherwise known 
as someone trying to keep us safe in cyber space.
  These Agencies and all those within the Department stand ready to 
protect the homeland. But we in Congress seem ill-prepared when it 
comes time to supporting and furthering their efforts.
  So that being said--and I know Chairman Murphy and I agree on this--I 
loathe the fact that a CR would enable and pretty much encourage the 
Department to reprogram money at their own will, aside from the 
intention of Congress.
  So let's secure a framework because, don't forget, we are talking 
here in the midst of a continuing crisis on our southern border. 
Democrats have cited the supposed reduction in border encounters as 
evidence that President Biden and Vice President Kamala Harris's 
immigration policies are working.
  It is true that encounters have gone down. They have gone down from 
record highs in July to record highs in October. That is right, this 
October's numbers, which are the last numbers that we have, were the 
highest recorded numbers of any October in history. And that is 
astonishing.
  You can see from the chart how the blue is the average from 2013 to 
2020 of encounters. And you can see from January on how exponentially 
higher all of these encounters have been. We have real problems, 
particularly at the border, that need to be addressed.
  So while a long-term CR would be bad, as I have already discussed, a 
full-year FY22 bill that does not address these real problems at our 
border is not reasonable either. But that is what the majority's 
Homeland bill does.
  Literally, the first sentence of the summary says: ``The fiscal year 
2022 Homeland Security bill provides discretionary funding of $71.7 
billion, which is $65 million less than [what] the President's . . . 
[asked in his budget] and $136 million less than the . . . 2021 enacted 
level'' that we are living under right now.
  That is right, the DHS bill, introduced by the majority that we are 
now told is better for the Department than a CR, actually reduces 
funding from last year's levels.
  For example, for Customs and Border Protection--they are on the front 
line--the bill provides $14.5 billion, $80 million below the 
President's budget request, and $501 million below fiscal year 2021 
enacted.
  So the DHS Agency directly responsible for border security, with 
these numbers right here--the one that is overwhelmed by these 
numbers--would receive less funding than requested by President Biden 
and, yes, less funding that is being provided right now under this 
continuing resolution.
  The same is true for Immigration and Customs, known as ICE, the 
Agency responsible for removing migrants who received due process and 
are ordered removed.
  Again, I quote, for ICE, ``the bill provides $7.9 billion, $58 
million below the President's budget request, and $40 million below'' 
the enacted level that we are operating under now in 2021.
  Once again, another account vital to enforcing our immigration laws 
cut from what we are operating under the CR.
  So what is in the majority's bill that is being sold as border 
security?
  This is what they have chosen to highlight: $175 million for medical 
services for migrants who arrive at the border--by the way, the 
Department of Health and Human Services has an enormous amount of money 
in their budget--$130 million for three new permanent processing 
facilities, and $25

[[Page S9023]]

million for increased transportation costs.
  All of these investments mistake border security with border crisis 
management. These numbers are not going to go down if this is where we 
put our dollars. Some of these may be necessary expenses--a reality of 
opening under what is ostensibly open border policies. But they will do 
nothing to stop illegal border crossings and maybe even facilitate the 
administration's catch-and-release programs.
  And what else would the majority bill do?
  It would rescind $1.9 billion in border wall system funding that we 
have had in the previous years.
  Is taking away money for a border wall system that our Border Patrol 
has been asking for decades and decades--is that border security?
  You know, this isn't just Trump's border wall. We also built miles 
and miles of extremely useful and effective border wall under President 
Obama--and it was wall that you could barely distinguish sometimes with 
the naked eye from recent border wall.
  Is rescinding that money good for border security?
  I say no.
  Is rescinding that money better for border security than a continuing 
resolution, which I must point out would actually provide an additional 
$1.375 for more border wall system?
  I will say it again, and you can see it on the chart: illegal border 
crossings remain at a record high. We need to squash this delusion that 
things are getting better. The American public is well aware that they 
aren't. Therefore, we need to provide the proper resources to the 
Agencies in charge to fix the problem, not perpetuate the crisis.
  So let me reiterate what I said at the start. Nobody wants a full-
year CR. We need to come together as Democrats and Republicans, in the 
spirit of true compromise, to avoid that outcome. We can only do that 
if we understand each other's true interests.
  Allow me to cite another telling line from the majority's Homeland 
Security summary that I have mentioned before. Listed in their key 
points and highlights for Homeland Security, the very first one that 
they list, is: ``Addressing impacts of Climate Change and Improving 
Climate Resilience.''
  They don't mention No. 1 border security. They don't mention No. 1 
cyber security. They don't mention No. 1 disaster relief and recovery, 
which is in Homeland Security. They don't mention the Coast Guard. They 
don't even mention the scourge we see on all of our States of drug 
overdoses. And this Homeland Security is charged with drug 
interdiction.
  To me, that says a lot. It says a lot, and it is not going to get us 
to the negotiation table.
  As I have said to the administration, as I say to my Democrat 
colleagues, as Chairman Murphy and I have talked about, I think we are 
both ready and willing to work towards a solution. Americans deserve 
our efforts to reach a bipartisan consensus, but that will only happen 
by following precedent and a willingness to compromise.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.


                   Unanimous Consent Request--S. 1520

  Mrs. GILLIBRAND. Madam President, I rise today to call for every 
Senator to have the opportunity to cast their vote on the Military 
Justice Improvement and Increasing Prevention Act.
  I started calling for this up-or-down vote since May 24, because I 
knew--sexual assault survivor advocates knew--that if the Armed 
Services Committee leadership had the chance, they would strip the 
provision out of the NDAA behind closed doors, despite the overwhelming 
support the bill has in both the Senate and House. That is exactly what 
has just happened.
  Time and time again, I have asked on this floor for the same 
opportunity to have an up-or-down vote. Time and time again, I have 
heard the same false promise that we would proceed under regular order 
and that the will of the Members of this body would be respected.
  I was told that ``the best way to move forward on this issue is to 
ensure that all 26 members of the Armed Services Committee have their 
voices heard and to consider this legislation in the course of the 
markup of the fiscal year 2022 Defense bill,'' and that it was ``the 
traditional means of making these decisions.''
  I was assured that ``fulsome debate during committee markup of the 
annual defense bill . . . is the hallmark of our committee. It ensures 
that everyone's voice is heard.'' And here on this very floor, I heard 
that ``all amendments offered by Senators on the committee will be 
fully considered during the full committee markup'' and ``that is, in 
fact, the tradition of the committee. If a Member wants a vote on 
amendments, we will vote.''
  So we took it to the committee, we had the fulsome debate, and we 
voted. The Military Justice Improvement and Increasing Prevention Act 
was included in the Senate Armed Services' NDAA bill and passed out of 
committee 23 to 3. That is a pretty decisive vote.
  But despite all of the claims that we would follow regular procedure 
and that everyone's voices would be heard, when the doors closed for 
the conference, the story changed. Our votes were not respected. Our 
voices were silenced. Those promises were broken. The House and Senate 
Armed Services leadership gutted our bipartisan military justice 
reforms, stripped them from the NDAA, and did a disservice to our 
servicemembers and our democracy.
  Committee leadership has ignored the will of a filibuster-proof 
majority in the Senate and a majority of the House in order to do the 
bidding of the Pentagon. This is an act of blatant disregard for the 
servicemembers, veterans, and survivors who have fought for an 
impartial and independent military justice system that is worthy of the 
sacrifice they make every day for our country.
  Committee leadership has also ignored President Biden, our Commander 
in Chief's public support for moving felonies from the chain of command 
and fallen short of even the limited reforms that Secretary of Defense 
Austin called for that would have removed sex crimes from the chain of 
command. Despite claims otherwise, the NDAA does not remove sex crimes 
from the chain of command because the commander remains the convening 
authority, a central role to the military justice system. Every single 
court-martial will still begin with the words:

       This court-martial was convened by order of the commander.

  Commanders can still pick the jury, select the witnesses, and allow 
servicemembers accused of crimes the option of separation from service 
instead of facing a court-martial--a total denial of justice.
  We know that removing convening authority from commanders is critical 
to providing a system that is fair and perceived to be fair by the 
servicemembers. To quote Secretary Austin's own panel:

       The DoD's Office of the Special Victim Prosecutor structure 
     must be, and must be seen as, independent of the chains of 
     command of the victim and of the accused all the way through 
     the Secretaries of the Military Departments. Anything less 
     will likely be seen as compromising what is designed to be an 
     independent part of the military justice process, thus 
     significantly undermining this recommendation. . . . Finally, 
     because of the breadth and depth of the lack of trust by 
     junior enlisted Service members in commanders--

  The IRC goes on--

     it was determined that the status quo or any variation on the 
     status quo that retained commanders as disposition 
     authorities in sexual harassment, sexual assault, and related 
     cases would fail to offer the change required to restore 
     confidence in the system.

  That was Secretary Austin's own panel.
  The NDAA bill does not provide meaningful change to the status quo. 
Our bill would provide it by moving serious crimes like sexual assault 
out of the chain of command completely, putting them in the hands of 
the most capable people in the military--those independent, impartial, 
highly trained, uniformed prosecutors. That is a system our 
servicemembers can trust. I know that because that is the reform that 
survivors have asked for over and over and over again.
  Since I started calling for this vote in May, we estimate that more 
than 11,000 servicemembers will have been raped or sexually assaulted 
and more will have been victims of other serious crimes. Two in three 
of those survivors will not even report those crimes because they know 
that under the current system, they are more likely to

[[Page S9024]]

face retaliation than to receive justice. It is clear we cannot wait 
for committee leadership to recognize the importance of this reform.
  Madam President, as if in legislative session, I ask unanimous 
consent that at a time to be determined by the majority leader in 
consultation with the Republican leader, the Senate Armed Services 
Committee be discharged from further consideration of S. 1520 and the 
Senate proceed to its consideration; that there be 2 hours of debate 
equally divided in the usual form; and that upon the use or yielding 
back of that time, the Senate vote on the bill with no intervening 
action or debate.
  The PRESIDING OFFICER. Is there objection?
  The Senator from South Carolina.
  Mr. GRAHAM. Reserving the right to object, to my colleague from New 
York, I want to compliment you for the effort you brought to the table 
on trying to reform the military justice system, tackling areas of 
sexual assault. I think we are making some real progress here.
  The one thing I don't like is basically taking the commander out of 
the loop when it comes to military justice in a fashion that basically 
says we can't trust our commanders to discipline their forces. A lot of 
the crimes that are being proposed here to be taken out of the military 
justice system have nothing to do with sexual assault.
  The theory is that our commanders are discriminatory, that there is 
racial bias in the system, and that we have a biased military justice 
system based on the color of your skin. Quite frankly, I don't believe 
that, and I am never going to say that. That would be taking us down 
that road.
  What Senators Inhofe and Reed have done, I think, makes a lot of 
sense. We have added to the list of crimes that would get special 
scrutiny--I think it is murder, kidnapping, and one other beyond the 
sexual assault crimes.
  When there is an allegation of sexual assault, there will be a new 
process that goes into whether or not the case goes to trial. One of 
the issues is, who should pick the jury? Well, the prosecutor can't 
pick the jury, the special prosecutor. You can't have the prosecutor 
picking the jury. The convening authority, the commander in charge of 
the units in question, will still be picking the jury, but the lawyers 
can strike members of the jury for cause and preemptory challenges. At 
the end of the day, I think we made a lot of progress.
  Senator Gillibrand's bill goes well beyond the stated purpose of what 
got us talking about this. I think it would destroy the military 
justice system as we know it and destroy the role of the commander. 
And, again, our commanders are the ones who decide who takes the most 
risks. Our commanders, again, have a lot of responsibility. They need 
to have the tools to make sure that unit is fit to fight. They will be 
under scrutiny, as they should be. But we want a military justice 
system that makes the military the most effective fighting force in the 
world, and you can't have a strong military without a strong command 
structure.

  I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from New York.
  Mrs. GILLIBRAND. I just want to thank the Senator from South Carolina 
for his work and support in this area. He has worked with me in trying 
to find common ground, and I appreciate that work very much. I just 
want to respond to a couple of his concerns.
  One of the reasons why we wanted to have a bright line at felonies is 
because we didn't want to marginalize women in the armed services. If 
you only remove a small number of crimes--just the 11 that are in this 
bill--that disproportionately affects women servicemembers.
  Oftentimes, there will be a belief that these changes are made to 
give special treatment just to women servicemembers. The reason why 
both Senator Joni Ernst and Senator Tammy Duckworth--two of the female 
armed service veterans in the U.S. Senate from both the Democratic and 
Republican Party--the reason they support this bill is because they 
believe that if you put the bright line at felonies and treat all 
servicemembers the same regardless of the crime, that you won't be 
further marginalizing women servicemembers. They won't be perceived as 
receiving special treatment. If they are being perceived as receiving 
special treatment, that is being perceived as a pink court, and we 
would like to avoid pink courts. We would like to avoid the perception 
of special treatment.
  We believe that if you are reforming the military justice system, as 
Secretary Austin has said, that it needs to be unbiased, it needs to be 
professionalized, and it needs to be independent of the chain of 
command; that what is good for this set of crimes is good for all sets 
of crimes, just as the IRC has recommended.
  Second, we know that this type of system actually strengthens 
commanders because it allows them to focus on winning wars and training 
troops. This bifurcated system under the NDAA is going to leave 
commanders without all authority to do what they would want to do and 
just some authority, so there will be a lot of bureaucracy that will 
take time and effort and may lead to undue command influence and 
unintended consequences.
  So a system that gives all that decisionmaking directly to trained, 
independent military prosecutors is preferable and a commander-friendly 
system. In fact, our allies chose to do a bright line at serious crimes 
for this very reason. UK, Israel, Australia, Netherlands, Canada, 
Germany--they did it specifically for both plaintiffs' and defendants' 
rights, so they had an equal justice system for all parties, and they 
allowed commanders to focus on commanding and doing the job of winning 
wars and training troops.
  Madam President, I ask unanimous consent to have printed in the 
Record a list of the roles that still remain with the commander, this 
larger list of what remains with the commander under this NDAA, as well 
as a list of the offenses the NDAA takes out of the chain of command, 
which is 11, versus our bill, which would have been 38, as well as an 
analysis that this is a less commander-friendly bill in current form.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       JUDICIAL ROLES OF COMMANDERS IN THE MILITARY JUSTICE SYSTEM
------------------------------------------------------------------------
                  MJIIPA                                NDAA
------------------------------------------------------------------------
Convening authority responsibilities for    Pre-trial restraint:
 misdemeanors and military-specific          restriction and confinement
 offenses ONLY                              Separation Authority
Pre-trial restraint: restriction and        Preliminary Inquiry
 confinement                                Convene Courts-Martial (of
                                             all types)
                                            Convene Preliminary Hearing
                                            Choose the members of jury
                                             panel
                                            Order Depositions
                                            Order warrants of attachment
                                             (compel compliance with a
                                             subpoena)
                                            Grant Immunity
                                            Approve delays (``excludable
                                             delay'')
                                            Determine incapacity of the
                                             accused
                                            Grant sentencing witnesses
                                            Order reconsideration of
                                             ``ambiguous'' sentence
                                            Approval of findings and
                                             sentence (subject to
                                             limitations)
                                            Grant of clemency
------------------------------------------------------------------------


------------------------------------------------------------------------
        NDAA text offenses included           MJIIPA offenses included
------------------------------------------------------------------------
 117a (distribution of intimate visual      93a (recruit maltreatment)
 images without consent),                   117a (distribution of
118 (murder),                                intimate visual images
119 (manslaughter),                          without consent),
120 (sexual assault),                       118 (murder),
120b (sexual assault of a child),           119 (manslaughter),
120c (indecent acts),                       119a-b (a: murder of a
125 (kidnapping),                            pregnant woman, b: child
128b (domestic violence),                    endangerment (excluding
130 (stalking),                              negligence)),
132 (retaliation),                          120 (sexual assault),
134 (child pornography)                     120a (obscene mailing),
                                            120b (sexual assault of a
                                             child),
                                            120c (indecent acts),
                                            121 (stealing),
                                            121a-b (credit card and
                                             false pretense theft (i.e.
                                             fraud)),
                                            122 (robbery),
                                            124 (fraud against the U.S.,
                                             BAH fraud, using false
                                             documents to claim
                                             benefit),
                                            124a-b (bribery, graft),
                                            125 (kidnapping),
                                            126 (arson),
                                            127 (extortion),
                                            128 (assault),
                                            128a (maiming),
                                            128b (domestic violence),
                                            130 (stalking),
                                            131 (perjury),
                                            131 a-g (obstruction of
                                             justice),
                                            132 (retaliation),
                                            134 (child pornography),
                                            134 (negligent homicide),
                                            134 (indecent conduct),
                                            134 (indecent language to a
                                             child under the age of 16),
                                            134 (pandering and
                                             prostitution)
------------------------------------------------------------------------

     NDAA Final Text Does Not Meaningfully Reform Military Justice


Commander retains convening authority under the NDAA, which means there 
is no true independence. Survivors' lack of trust in the system and the 
                    perception of bias will continue

       Table A below. Under the NDAA, the commander remains the 
     convening authority, a central role to the military justice 
     system. This is usually the same commander in the chain of 
     command of the accused and the survivor. Every single court-
     martial will still begin with the words, ``This court-martial 
     was convened by order of the commander.'' Commanders will 
     still pick the jury, select the witnesses, and allow service

[[Page S9025]]

     members accused of crimes the option of separation from 
     service instead of facing a court-martial.
       Removing convening authority from commanders is critical to 
     providing a system that is fair and perceived to be fair by 
     survivors and the accused. Only one-third of survivors of 
     sexual assault in the military are willing to come out of the 
     shadows to report their crime, showing a clear lack of trust 
     in the system. 44% of survivors indicated they would have 
     been more likely to come forward if a prosecutor were in 
     charge of the decision over whether to move forward with 
     their case. With commanders retaining convening authority 
     under the NDAA text, the Special Trial Counsel (``STC'') will 
     still be necessarily reliant on the commander for the 
     prosecution of a case. The perception and reality of 
     commanders influencing the outcome will be unavoidable.
       MJIIPA is the only provision that would empower impartial, 
     independent prosecutors to make the vital decisions necessary 
     for a criminal justice system shielded from systemic command 
     influence and other structural defects. It is the only system 
     that uses the UCMJ as it is designed to implement military 
     justice: empowering officers to execute convening authority.


                  NDAA text is not commander friendly

       Under the Special Trial Counsel program alone, there is a 
     lack of accountability for the system. Commanders remain in 
     charge as the convening authority, but their hands are tied 
     from making key decisions such as the referral of charges. 
     The STC has some of the decision-making authorities, such as 
     referral and the ability to make plea deals, but the 
     commander is ultimately responsible for creating the court-
     martial, approving witnesses, etc. Thus, there is not one 
     figure who can be held accountable for the military justice 
     process. Just as it would be unfair to send a commander into 
     combat without all the tools at their disposal, it is unfair 
     to commanders to keep them in charge of the court-martial but 
     limit their decision-making in this way. Under MJIIPA, 
     commanders are allowed to focus on warfighting, training, and 
     taking care of service members while independent military 
     lawyers take over the military justice system for serious, 
     non-military crimes.
       The STC program continues the risk of unlawful command 
     influence. Every year, appellate courts throw out convictions 
     for serious crimes because the commander oversteps their 
     bounds. If commanders are still in charge under the STC 
     program, but restricted in new ways, this will only increase 
     this risk.
       Under the STC program in the NDAA text, the commander will 
     be unable to give non-judicial punishment (``NJP'') to the 
     accused for lower-level conduct. If the STC decides not to 
     prosecute, the commander will be unable to credibly impose 
     NJP. For example, if the STC gets a stalking case and decides 
     not to prosecute it, the commander may want to do non-
     judicial punishment, but if the accused refuses, the 
     commander will be unable to send the case to court-martial. 
     That takes the teeth out of the NJP. The accused walks away 
     with no punishment.


 NDAA text creates an even bigger judicial bureaucracy that will slow 
                       down justice for survivors

       See Table B below. Some crimes will be prosecuted by 
     Special Trial Counsels while the majority of the crimes will 
     remain within the chain of command. The bifurcated system 
     will create complexity and unfairness due to different 
     processes for different crimes.
       Under the NDAA text, responsibilities will be divided 
     between the commander, the Special Trial Counsel, the Service 
     Secretaries and the TJAGs (the head Judge Advocate of every 
     Service), which will add layers of bureaucracy, slowing the 
     process down and making it take even longer for survivors to 
     see justice.


    NDAA language does NOT include all serious non-military crimes 
   (including sexual harassment and child endangerment), creating a 
          bifurcated, unequal system for survivors and accused

       See Table B. The NDAA also fails to draw a bright line at 
     all serious, non-military crimes. That bright line is 
     critical, because it avoids creating so-called ``pink 
     courts'' focused solely on sex crimes, which only further 
     stigmatizes survivors--something survivors have specifically 
     asked us to avoid doing. Drawing that bright line also avoids 
     creating an inherent inequality in the military justice 
     system.
       The crimes chosen for the STC program are seemingly random. 
     Although sexual assault and kidnapping are included, sexual 
     harassment (which was in both the House and Senate versions 
     of the NDAA), child endangerment, murder of a pregnant women, 
     and obscene mailing are not (to name a few). How does a 
     commander have more expertise on the prosecution of child 
     endangerment than an independent military prosecutor?
       Every victim and every accused offender in these serious 
     cases should be treated equally and have access to a system 
     that is professional and unbiased. It is unrealistic and 
     untenable to leave these complex legal decisions to 
     commanders whose expertise relates to warfighting, not the 
     minutiae of the law.


                   Other problems with the NDAA text

       Implementing the requirement that the senior STC be an O-7 
     will take years because there are few generals or admirals 
     with significant litigation experience. There is a very 
     limited number of military lawyers in the ranks of Admiral 
     and General, and most, if not all, of them are generalists 
     rather than military justice experts. It will take years for 
     the services to develop the officers necessary to fill this 
     role. MJIIPA on the other hand allows O-6s to fill these 
     roles. There are sufficient O-6s with military justice 
     experience currently in the services.


     Senator Gillibrand is calling for an up or down vote on MJIIPA

       The process is broken: MJIIPA was included in the Senate 
     Armed Services NDAA bill and passed out of committee 23 to 3. 
     It has 66 cosponsors in the Senate and 220 in the House. And 
     yet without a vote or debate on the floor, this bipartisan, 
     bicameral bill was gutted from the NDAA.
       MJIIPA and the new STC system can work well together, with 
     MJIIPA acting as the overall structure and STCs prosecuting 
     special victim cases.
       A good overall explainer: https://www.justsecurity.org/
79481/ndaa-a-missed-opportunity/
 Mrs. GILLIBRAND. I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.


                   Unanimous Consent Request--S. 3344

  Mr. KENNEDY. Madam President, I want to talk about the American 
Taxpayer and Medicare Act, of which I am a sponsor. Cosponsoring this 
legislation with me are Senator Graham, Senator Hagerty, Senator Tim 
Scott, Senator Rick Scott, Senator Blackburn, Senator Hawley, Senator 
Cotton, Senator Boozman, and others who are likely to join.
  I am going to make a few remarks about the bill, and a number of my 
colleagues would also like to comment about my bill, so I will be 
yielding to them. At the end of my colleagues' remarks, I will have a 
motion to make.
  As a result of the American Rescue Plan, working in conjunction with 
the Budget Control Act of 2011, there are cuts scheduled to take effect 
in 2022 with respect to Medicare and with respect to our farmers.
  Medicare specifically, unless my bill passes and unless this body 
takes action, will be cut $36 billion. Those Medicare cuts will 
include--but they are not limited to--they will include cuts to cancer 
treatments for our elderly. Those cuts would reduce laboratory fees and 
analyses that our seniors depend on every single day.
  For the reasons I just referenced, our farmers are also going to get 
cut unless we take action--specifically, the crop insurance programs on 
which our farmers rely.
  We are recovering from a pandemic, as we all know. Now is not the 
time, in my judgment, to put this burden on our seniors and on our 
farmers. Our seniors, part of the ``greatest generation,'' don't 
deserve them, and our farmers, the backbone of America, don't deserve 
these cuts either. In fact, America was born on the farm, and I think 
we ought to keep that in mind.
  At this time, I would yield to the senior Senator from Arkansas, 
Senator Boozman.
  Mr. BOOZMAN. Madam President, I want to thank Senator Kennedy for his 
help and his leadership in this effort. We simply have to support 
America's healthcare providers, farmers, and ranchers. Doctors and the 
entire medical community are still struggling after being unable to 
perform nonemergency procedures during the pandemic.
  With an aging population and more physicians not accepting Medicare 
because of insufficient payment, Medicare beneficiaries would face a 
reality of less access to quality care. That is why I introduced my own 
legislation to prevent these damaging cuts from harming our physicians, 
our providers. Our agriculture community is also struggling, and we 
must protect our farmers and ranchers by ensuring their operations can 
stay afloat and keep producing the most abundant and safest food supply 
in the world.
  For all of these reasons, I support Senator Kennedy's bill.
  I understand that my fellow Senator from Missouri also has some 
concerns, and so I yield to him.
  Mr. HAWLEY. Madam President, I rise to make a very simple point, 
which is that Medicare is too important to be held hostage to political 
games, and that is what is going on here now. We need to have a clean 
bill to fully fund and protect Medicare for the millions of Americans 
who rely on it, including over 1 million just in the State of Missouri.
  And that is why I am supporting Senator Kennedy's bill to fully 
protect and

[[Page S9026]]

secure Medicare, and I will support every amendment and bill and clean 
amendment and bill to fully protect and secure Medicare, including, I 
think, Senator Graham's that he's going to be offering shortly, which I 
am also privileged to cosponsor.
  And I would just say this: I call on the Members of both parties--
both parties--to stop using Medicare as a pawn in a political game. 
Let's fund Medicare. Let's do it on its own. Let's not hold it hostage 
to other agendas. Let's not hold it hostage to other programs. Let's 
not hold it hostage to others' individual ambitions, whatever they may 
be.
  But let's take the opportunity now with this bill to fully protect 
Medicare for our seniors all across this country. That should be 
something that we can all get behind, and for those reasons I am proud 
to support Senator Kennedy's legislation.
  And now I yield to Senator Hoeven.
  Mr. HOEVEN. I would like to thank my colleague from Missouri. As my 
colleagues have pointed out, we rise to support Senator Kennedy's UC--
unanimous consent request--his legislation, because we have 
consistently supported funding for Medicare and funding for our farmers 
and our ranchers who work hard to provide food, fuel, and fiber for our 
Nation.
  That is why I support both the UC request and the amendment that 
Senator Graham is sponsoring. I am cosponsoring that amendment as well. 
That would ensure that we fund these priorities.
  I do not support linking these funds with an increase in the debt 
ceiling, as the bill from the House would do, without our amendment.
  We should not be tying the debt ceiling to important legislation that 
ensures healthcare providers can continue to care for our seniors and 
protect our farmers who produce the highest quality, lowest cost food 
supply in the world.
  So I strongly support and have cosponsored the Graham amendment which 
would strike the fast-track debt ceiling process from this bill. As we 
are saying very clearly, we support the funding for Medicare. We 
support the funding for our farmers and ranchers.
  Now, Democrats, who control the White House, the Senate, and the 
House, are trying to use reconciliation to pass a trillion-plus tax-
and-spending bill on a purely partisan basis. Given that, they 
obviously can use reconciliation to pass a debt ceiling increase on 
their own. They do not need this House legislation to do it.
  And with that, I will yield to my colleague from Kansas.
  Mr. MARSHALL: I thank the Senator for yielding. I am honored to be 
here this evening to support my colleague from Louisiana. I want to 
take this Nation back to a year ago, a year ago this spring in April 
2020. COVID was on the rise--our first variant, our first wave ripping 
through this country. Our ERs were overflowing; the ICU beds were full; 
and doctors and nurses across this Nation ran to the sound of the 
battle.
  We didn't have vaccines. There weren't therapeutics, but we took an 
oath to take care of our fellow man. I joined those doctors. I went to 
an ICU in Southwest Kansas where we had 8 beds, 12 patients, and 9 
ventilators.
  So how are we going to reward those doctors today? We are going to 
cut their pay. We are going to cut most doctors' pay 2 to 11 percent. 
Even before COVID, there was a doctor shortage. There was doctor 
burnout. Because of this pay cut, even more doctors will quit. More 
doctors are going to stop taking Medicare.
  Yesterday, the leadership on the other side of the aisle just wanted 
to kick doctors, but today I found out they are kicking farmers in the 
shins as well. Holding doctors and farmers hostage is no way to run a 
government. I, too, am tired of seeing doctors and farmers used as 
pawns for political gain.
  I support Senator Kennedy's bill, and I am honored to turn it back to 
him.
  Mr. KENNEDY. Madam President, Americans may be poor since President 
Biden took office, but they are not stupid.
  They look around Washington, DC, and they see liars and they see 
frauds in every direction. Now, I don't think a single member of this 
body supports cutting Medicare or hurting our farmers, especially not 
at this moment. I don't. I don't.
  And I don't think any of my Republican colleagues or any of my 
Democratic colleagues do as well. But a deal has been made. A deal has 
been made to give us--some of us see it this way anyway--a choice 
between voting for a heart attack or cancer.
  You either have to give up your principles on the debt limit or you 
have to vote to cut Medicare and hurt our farmers, and no one wants to 
do that. I understand that people disagree over the debt limit, but 
there is no disagreement in this body over not cutting Medicare and not 
hurting our farmers.
  Now, I am labor. I am not part of management. I don't want to be part 
of management. I wouldn't be good at management because I don't always 
fit in. It is not one of my best qualities. In fact, it is my best 
quality, and that is why I brought this bill.
  As Senator Hawley said, much more eloquently than I could, the 
disagreement that reasonable people are having over the debt limit has 
been conflated in a cynical attempt to fool the American people by 
putting them both in a bill that we are going to shortly be asked to 
vote on. And we are going to be asked to give the American people 
either a heart attack or cancer. You have to choose. And I don't want 
to make that choice, and I am not going to make that choice. And that 
is why I brought this bill.
  I do not agree with my Democratic friends about the debt limit. I 
don't support Build Back Better. I understand many of my Democratic 
friends do. I understand President Biden does. I understand Senator 
Schumer does. I understand Speaker Pelosi does. And I respect that, but 
I don't support it.
  Now, they are going to try to pass Build Back Better, and they are 
going to try to implement it. But they can't do it without raising the 
debt ceiling. Now, if I don't support the Build Back Better bill, why 
would I want to allow them to borrow the money to implement the Build 
Back Better bill? I don't, and I am not going to break my word and vote 
to do that.
  If my colleagues want to do that, that is their business. I don't 
tell people how to vote. If I am ever asked how to vote, I rarely--I 
almost always say, follow your heart, but just take your brain with 
you. And that is why I brought this bill. And I want to make it very 
clear, and you can write this down and take it home to mama, I do not 
support cutting Medicare, and I do not support cutting farmers.
  I do support keeping my word to the American people. When I tell them 
I am going to do something, by God, I am going to stick. And I am not 
going to be scared away by some cynical deal that was made in 
Washington, DC.
  Now, Madam President, as in legislative session, I ask unanimous 
consent that the Senate proceed to the immediate consideration of S. 
3344--the bill about which I have been speaking, and my colleagues, 
Protecting the American Taxpayer and Medicare Act--at this time, it is 
at the desk. I further ask that the bill be considered read a third 
time and passed and that the motion to reconsider be considered made 
and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. WYDEN. Reserving the right to object, Madam President.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President and colleagues, I yield to no Senator in 
my support of this country's senior citizens. My background, 
colleagues, I was codirector of the Oregon Gray Panthers, the senior 
citizens group, for almost 7 years before I went into public life.
  And I know that there is no Senator here who doesn't support senior 
citizens, farmers, the extraordinarily important Americans that my 
colleagues have been talking about.
  But what really has not been explained here--because we all kind of 
talk this special lingo around here--is what my colleagues really seek 
to do in the Kennedy amendment.
  What my colleague from Louisiana wishes to do is rip up an agreement 
reached between Democrats and Republicans. Specifically, colleagues, 
Senators Schumer and McConnell. So what they did is reach a bipartisan 
agreement to defuse an economic timebomb by creating a process to avoid 
default.
  Senator Kennedy's proposal sticks a flame right back under that fuse. 
Now,

[[Page S9027]]

the two parties obviously have different approaches when it comes to 
gamesmanship around this country's financial commitments. Setting all 
of that aside, the fact is our country is now way too close to default 
for the Senate to be playing games.
  This debate is almost entirely about financial commitments made under 
past Presidents. It doesn't have anything to do with legislation that 
is still in the works. That is a fact. The reality is my colleague from 
Louisiana seeks to bring the country closer to default. The Senate 
ought to be clear on the consequences if that were to come to pass.
  Default would be an economic disaster for our country as well as for 
individual families and businesses. And, again, colleagues, since 
senior citizens came up so frequently, this has been my particular 
passion. It is why I went into public service. Social Security stops 
going out. Military could stop getting paid. Interest rates go into the 
stratosphere, making existing Federal debt even more expensive, if you 
go forward with this proposal.
  Costs go up for families who want to buy homes or buy cars. Getting a 
small business loan becomes more expensive. Jobs across the country are 
wiped out amid this turmoil. And all of that would happen right in the 
middle of the holidays, when Americans are simply trying to enjoy their 
time with families, go out and shop for presents, and enjoy their time 
together.

  My view is, after almost 2 years of pandemic and economic chaos, 
people have had it hard enough. And two leaders--a Democrat and a 
Republican--have come together because they understand the Senate 
doesn't need to add another catastrophe to their financial challenges, 
the challenges I just described--one, by the way, that would be 
entirely self-made.
  There is an agreement before the Senate, colleagues; an agreement 
between the Republican leader and the Democratic leader. That agreement 
brought the two sides together. My colleagues must not throw that 
agreement away. And I respect all my colleagues--all of them--but I 
just believe that this proposal from the Senator from Louisiana is 
misguided. It brings our country closer to default.
  Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Louisiana.
  Mr. KENNEDY. Madam President, I really appreciate my colleague's 
remarks, I do. I don't agree with his objection, but I appreciate it.
  I just want to say a couple more words. I didn't make a deal. Now, 
let me say it again. Let me say it a different way.
  I don't hate anybody. Lord knows I look for grace wherever I can find 
it. I like every one of my colleagues; I really do. The Senate is the 
most interesting group of people I have ever been around.
  I am not part of management. I am labor, and I meant what I said. I 
belong in labor because I don't always fit in, and I do believe it is 
one of my best qualities.
  The truth of the matter is--and this is what we are disagreeing 
over--President Biden, Senator Schumer, Speaker Pelosi, my other 
Democratic friends have proposed the Build Back Better bill.
  Now, any economist with a pulse will tell you that it is going to 
cost about $5 trillion without the gimmicks. It is going to raise taxes 
a couple of trillion. We will probably end up having to borrow another 
3 trillion to pay for it. We will have to borrow the money. We don't 
have the 3 trillion. We don't even have 5 percent of it.
  Now, I think that the bill represents a spending taxation and 
borrowing orgy that we don't need, but I understand my Democratic 
colleagues disagree. I get that.
  My Democratic friends can't pass and implement the bill without 
raising the debt limit. That is just a fact, because they won't be able 
to borrow the money.
  Now, if I don't support the bill, why do I want to support allowing 
them to borrow the money, especially when Senator Schumer--my friend 
Senator Schumer--can do it on his own?
  He can do it before the weekend is out. All he has got to do is do a 
simple amendment to the budget resolution.
  What am I missing here?
  And I know a deal has been made and some people are going to vote for 
it. You are not looking at one of them. And I respect their right to 
make a deal, but I didn't make a deal. But I have been put in the 
position of saying: OK, Kennedy, we are going to show you. You have got 
to choose between keeping your word to your people or cutting Medicare.
  And we wonder why Congress polls right up there with skim milk. That 
is why they look around, they see frauds and liars in every direction.
  I really regret that my bill didn't pass because it would have 
protected our elderly, and I do support protecting our elderly. And it 
would have protected our farmers, and I do support protecting our 
farmers. And this so-called deal puts them both at risk.
  The PRESIDING OFFICER. The Senator from South Carolina.