[Congressional Record Volume 170, Number 40 (Wednesday, March 6, 2024)]
[Senate]
[Pages S2233-S2236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

                                 ______
                                 

                 CONSOLIDATED APPROPRIATIONS ACT, 2024

  Mrs. MURRAY. Mr. President, I move to proceed to legislative session.
  The PRESIDING OFFICER. The question is on agreeing to the motion.
  The motion was agreed to.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I ask the Chair to lay before the Senate a message from 
the House of Representatives on H.R. 4366.
  The PRESIDING OFFICER. The Chair lays before the Senate the following 
message from the House of Representatives on H.R. 4366, which the clerk 
will report for the information of the Senate.
  The senior assistant legislative clerk read the message as follows:

       Resolved, That the bill from the House of Representatives 
     (H.R. 4366) entitled ``An Act making appropriations for 
     military construction, the Department of Veterans Affairs, 
     and related agencies for the fiscal year ending September 30, 
     2024, and for other purposes.'', do pass with an amendment.

  The PRESIDING OFFICER. The majority leader.


                            Motion to Concur

  Mr. SCHUMER. I move that the Senate concur in the House amendment to 
the Senate amendment.


                             Cloture Motion

  Mr. SCHUMER. Mr. 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 senior assistant 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 the motion to 
     concur in the House amendment to the Senate amendment to H.R. 
     4366, a bill making appropriations for military construction, 
     the Department of Veterans Affairs, and related agencies for 
     the fiscal year ending September 30, 2024, and for other 
     purposes.

[[Page S2234]]

         Charles E. Schumer, Patty Murray, Brian Schatz, Tammy 
           Duckworth, Jack Reed, Tim Kaine, Christopher A. Coons, 
           Benjamin L. Cardin, Margaret Wood Hassan, Richard J. 
           Durbin, Sheldon Whitehouse, Jeanne Shaheen, Richard 
           Blumenthal, Angus S. King, Jr., John W. Hickenlooper, 
           Tina Smith, Alex Padilla.


                Motion to Concur with Amendment No. 1618

  Mr. SCHUMER. I move to concur in the House amendment with an 
amendment numbered 1618, which is at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant legislative clerk read as follows:

       The Senator from New York [Mr. ScHumer] moves to concur in 
     the House amendment to the Senate amendment with an amendment 
     numbered 1618.

  The amendment is as follows:

                  (Purpose: To add an effective date)

       At the end add the following:

     SEC. EFFECTIVE DATE.

       This Act shall take effect on the date that is 1 day after 
     the date of enactment of this Act.

  Mr. SCHUMER. I ask that further reading be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. I ask for the yeas and nays on the motion to concur with 
the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.


                Amendment No. 1619 to Amendment No. 1618

  Mr. SCHUMER. I have an amendment to amendment No. 1618, which is at 
the desk.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant legislative clerk read as follows:

       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 1619 to amendment No. 1618.

  The amendment is as follows:

                  (Purpose: To add an effective date)

       On page 1, line 3, strike ``1 day'' and insert ``2 days''.

  Mr. SCHUMER. I ask that further reading be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Motion to Refer with Amendment No. 1620

  Mr. SCHUMER. I move to refer the House message to the Committee on 
Appropriations with instructions to report back forthwith with an 
amendment numbered 1620.
  The PRESIDING OFFICER. The clerk will report the motion.
  The senior assistant legislative clerk read as follows:

       The Senator from New York [Mr. Schumer] moves to refer the 
     bill H.R. 4366 to the Committee on Appropriations with the 
     instructions to report back forthwith an amendment numbered 
     1620.

  The amendment is as follows:

                  (Purpose: To add an effective date)

       At the end add the following:

     SEC. EFFECTIVE DATE.

       This Act shall take effect on the date that is 3 days after 
     the date of enactment of this Act.

  Mr. SCHUMER. I ask that further reading be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. I ask for the yeas and nays on my motion.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.


                           Amendment No. 1621

  Mr. SCHUMER. I have an amendment to the instructions, which is at the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant legislative clerk read as follows:

       The Senator from New York [Mr. ScHumer] proposes an 
     amendment numbered 1621 to the instructions of the motion to 
     refer H.R. 4366 to the Committee on Appropriations.

  The amendment is as follows:

                  (Purpose: To add an effective date)

       On page 1, line 3, strike ``3 days'' and insert ``4 days''.
  Mr. SCHUMER. I ask that further reading be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. I ask for the yeas and nays on my amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.


                Amendment No. 1622 to Amendment No. 1621

  Mr. SCHUMER. I have an amendment to amendment No. 1621, which is at 
the desk.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant legislative clerk read as follows:

       The Senator from New York [Mr. ScHumer] proposes an 
     amendment numbered 1622 to amendment No. 1621.

  The amendment is as follows:

                  (Purpose: To add an effective date)

       On page 1, line 1, strike ``4 days'' and insert ``5 days''.
  Mr. SCHUMER. I ask that further reading of the amendment be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I am back today for the 29th time on 
my ``scheme'' series to explain to the American people how the 
rightwing managed to capture the Supreme Court. Today, I would like to 
discuss the scheme's deliverables--how the Court rewarded its big 
donors with favorable outcomes that benefited partisan Republican or 
corporate interests and, particularly today, how the Roberts Court used 
false facts to produce decisions like Shelby County and Citizens 
United.
  This speech is the short form. For the full analysis or the long 
form, you can read my recently published law review article in the Ohio 
State Law Journal, 84 Ohio St. L.J. 837 (2023).
  False factfinding is the trick that has enabled the Court to do a lot 
of damage in recent years. Let's start with some basic principles about 
how factfinding is supposed to work in the American judicial system.
  Facts are an important part of every case, and it matters to get them 
right, and it also matters that courts stay within their constitutional 
boundaries. To achieve those two purposes, the American system has 
facts ascertained at the trial court level--the trial court level.
  First, the trial judge is closest to the facts on the ground. That is 
where the evidence comes in. That is where each party can challenge 
each other's facts, where facts receive robust adversarial scrutiny. 
That is where the judge can evaluate credibility and dedicate the time 
to compiling a robust factual record.
  In all of this, one key point is that the judge relies on the parties 
to bring the facts to the court. With only limited exceptions, a court 
isn't supposed to venture off looking for its own facts.
  Once the trial court makes its decision and assembles its record of 
the facts, that record travels with the case when a party appeals to a 
higher court.
  As to facts, an appellate court is not supposed to find its own; it 
is supposed to give the lower court a lot of deference.
  A lower court's factfinding can usually be overturned only if there 
was what is called clear error--a very hard standard to meet, as any 
lawyer will tell you. Even after a clear error finding, the ordinary 
rule is that the case is remanded back to the trial court for whatever 
further factfinding is required to comply with the appellate court's 
edict.
  These rules make our system honest and efficient. They allow robust 
challenge to the facts at trial but deference to the judge's findings 
on appeal. They do not set appellate courts up as factfinders. 
Appellate courts focus on questions of law using the record established 
by the trial court.
  These factfinding rules also protect our American separation of 
powers. Under the Constitution, courts are limited to deciding only 
what the Constitution calls ``cases or controversies.'' By obvious 
implication, that means actual cases or controversies with their actual 
facts. Without that,

[[Page S2235]]

judges could make decisions based on hypothetical facts--in effect, 
offer unconstitutional advisory opinions.
  A court can't honor the Constitution's case or controversy 
requirement without cabining its decision to the actual facts of the 
case or controversy and to this established factfinding process. If 
that limitation did not exist, appellate judges could become, as one 
famous judge warned, ``a knight-errant, roaming at will in pursuit of 
his own ideal of beauty or of goodness.''
  One other factfinding body needs to be mentioned, and that is 
Congress. Congress is the Constitution's policymaking body--that is our 
job--not because we are geniuses but because if our ideals of beauty or 
of goodness don't match the public's, the public can throw us out. That 
is democracy. The democratic process provides the public protection.
  Congress has its own factfinding authority under the Constitution. We 
often find facts ourselves, creating a legislative record--not the 
trial record of a trial court, a legislative record of the proceedings 
leading to a bill. This factfinding authority merits deference from 
courts--again, not because we are smarter, but because we are 
correctible through democratic process.
  Which brings us to the mischief at the Roberts Court. For more than a 
decade now, the Roberts Court has violated these basic principles, 
replacing facts found by Congress and facts found by lower courts with 
fake facts that they made up on their own--fake facts that over and 
over just happen to suit the big donors who put so many Republican-
appointed Justices on the Supreme Court.
  Shelby County and Citizens United--both of those decisions--stood 
upon falsehoods presented as facts. These weren't just drive-by errors 
in passing, of no moment; these were false factual findings that were 
essential to prop up the logic of the Court's holdings. No false facts; 
no desired outcome.
  Tellingly, even after events thoroughly disproved the false facts, 
the Republican Supreme Court refused to correct its mistakes, and so 
these faulty decisions founded on false facts live on like zombies 
plaguing our democracy.
  Let me talk about those two cases because they are probably the worst 
examples.
  In Shelby County, the Supreme Court said that the most important part 
of the Voting Rights Act--the part that required States with a history 
of racist voter suppression to get clearance before new voting laws 
went into effect--was no longer justified. That part of the law was 
just no longer justified because ``things had changed.''
  According to Chief Justice Roberts, conditions in those States had 
improved so much that Congress should no longer screen their laws for 
racist voter suppression. That false fact was key to the analysis 
overturning this part of the Voting Rights Act, but there was no record 
support for that false fact. It just popped out of the heads of the 
Justices who wrote that decision.
  In actuality, in Shelby County, Congress had compiled thousands of 
pages of evidence, a record of facts collected through extensive 
hearings and research regarding the danger of minority voter 
suppression in those so-called preclearance States. The Court ignored 
that.
  Worse still, preclearance States, no longer subject to these Voting 
Rights Act protections, immediately proved that the dangers that the 
Court said weren't there were, in fact, there, that these dangers were 
true, moving immediately to enact laws that targeted minority voters 
``with almost surgical precision,'' as one court put it. Despite the 
evidence before and after disproving the Court's so-called finding in 
Shelby County that everything was OK now, the Roberts Court has refused 
to budge, leaving that zombie decision in place.

  The trick was even clearer in Citizens United. The bipartisan 
campaign finance law at issue was supported again by a robust 
congressional, factual record. Congress had held hearings, gathered 
firsthand accounts, and wrote lengthy reports on the problems plaguing 
our campaign finance system. Lower courts had also assembled similar 
records with evidence of these problems, many of which suggested 
corruption. All of that was ignored.
  The Republican-appointed Justices in Citizens United had a problem. 
Congress gets to legislate to protect the integrity of elections. We 
get to legislate to protect elections from either corruption or the 
appearance of corruption. So to get around that--to keep Congress out 
of protecting the integrity of our elections--the Justices had to come 
up with a way of arguing that unlimited political spending in politics 
wouldn't and, indeed, couldn't harm election integrity. They had to 
manufacture that finding to subvert Congress' power, and to get there, 
they had to make two factual findings.
  First, they argued that there was no risk of corruption or even the 
appearance of corruption because all this new spending they were going 
to unleash would be independent--independent--from the campaigns the 
spending was supporting. Well, that has been proven abundantly false.
  Even more obviously, they said that all this new political spending 
they were unleashing would be transparent--not just independent but 
also transparent. The voters would know who was behind the big, 
unlimited political spending and could make their decisions 
accordingly; and therefore, the danger of corruption was lifted by the 
fact that the voters would know whose money was behind the ads.
  Well, folks, it is nondebatable that that fact is false. Partisan 
billionaires and corporate special interests have spent billions in 
dark money. This is so widely reported and incontestable that an honest 
court could probably even take judicial notice of the billions in 
nontransparent and, therefore, corrupting political spending. A lot of 
this money is supposedly independent, but in reality, the groups that 
spend it use all sorts of well-documented loopholes to coordinate with 
candidates and campaigns right in broad daylight. The tsunami of dark 
money that Citizens United unleashed has, as predicted, corrupted our 
democracy.
  The Court didn't have to wait for the newspaper to know that the 
facts it found were false. Shortly after Citizens United, a State 
campaign finance case came to the Supreme Court from Montana. The 
Montana Supreme Court upheld a 100-year old State campaign finance law 
on the basis of an extensive factual record about the history of 
campaign corruption specific to Montana. John McCain and I submitted a 
bipartisan brief to the Supreme Court in that case. Our brief pointed 
out the factual falsity of the Citizens United decision--that the 
spending was not independent; that the spending was not transparent; 
and, therefore, those factual predicates of Citizens United failed, and 
the decision should fall.
  Not only did the Republican-appointed Justices summarily reverse the 
Montana Supreme Court, not even allowing oral argument where, perhaps, 
this false factfinding might have been pointed out, the Court did so on 
the grounds that the Montana decision was inconsistent with Citizens 
United--no mention of the problem that Citizens United was inconsistent 
with the truth. Talk about a zombie decision. Since then, the Court has 
stubbornly refused to reexamine its false facts despite several billion 
instances of disproof of the transparency of the funding.
  Worse, a couple of terms ago, these Federalist Society Justices 
started paving the way even for a constitutional right to spend dark 
money. The billionaire rightwing donors who packed the Court did very 
well by these two decisions--by Shelby County and Citizens United. The 
suppression of minority voters across the South post-Shelby County 
likely flipped some elections to the Republican Party. The flood of 
dark money by billionaires and corporate interests was, for years, 
essentially entirely dedicated to funding Republicans in elections.
  If you want a specific example of corruption, look at how fossil fuel 
industry dark money has, since Citizens United, stopped Congress from 
passing any serious bipartisan climate legislation. I was here in 2007, 
2008, and 2009 when climate legislation was very current in the Senate 
and very bipartisan--three or four major bills being worked on, strong 
bills, that would have helped solve the climate problem. Then came 
January of 2010, that date of infamy when Citizens United was decided. 
Since then, that is it--no serious bipartisan climate bill.

[[Page S2236]]

  These cases happened because the Court disregarded rules about proper 
factfinding, ignored mountains of evidence that Congress and that lower 
courts had assembled, and made up facts--just made up their own facts--
that helped them strike down the laws, delivering those big wins for 
Republican donor political interests.
  This free-range factfinding problem at the Court is going to get 
worse after the Court's recent move in cases like Dobbs and Bruen to 
base constitutional decisions under their new theory of history and 
tradition. This new theory opens whole new fields to judicial 
factfinding knight-errantry, cherry-picking historical facts to get the 
outcomes that they want to reach.
  Dobbs, the case that overruled Roe v. Wade, stood on dubious 
historical sources--like a 1600s treatise by someone who sentenced 
accused witches to death and defended marital rape--to subject women's 
reproductive autonomy to the whims of State legislatures.
  Bruen, the guns case, stood on an NRA-funded version of history that 
one historian called an ``ideological fantasy'' to put the 
proliferation of guns on our streets behind constitutional protection.
  When the Supreme Court goes on these last-minute, no-argument, ``made 
it up in our chambers,'' ``no chance of correction'' factfinding 
expeditions, there is no one to tell them: Hey, you got some stuff 
wrong. There is no one else the parties can appeal to. The factual 
errors slipped in at the end are protected from correction, and then 
the zombie cases march on.
  I wrote my law review article because this factfinding trickery 
hasn't gotten the attention it deserves either here in Congress or by 
professors and judges. There is no shortage of mess to clean up at the 
Supreme Court, whether it is the Court's ethics crisis or the phony 
front group amici curiae, who often show up to offer those false facts 
to the Court without any transparency or vetting themselves. My Supreme 
Court Ethics, Recusal, and Transparency Act would clean up a lot of the 
mess. But even if we passed that law and it helped clean up the ethics 
mess and even if we managed to unpack the Court that dark money built, 
these zombie decisions standing on false facts would remain effectual 
unless--unless--we have the legal theory to address them. My article 
proposes one way to scrub away these tainted decisions--by returning to 
the historic, basic, well-established factfinding principles of the 
American system of justice.
  Why should we in Congress not confront the false facts of this 
stubbornly wrong Court? Why should lower court judges be expected to 
blindly adopt false facts that never went through proper factfinding 
procedures? Why should Congress honor decisions that are, on their 
face, founded on false facts?
  Remember in Marbury v. Madison that the Supreme Court famously gets 
to say what the law is, but it is not the last word on what the facts 
are. Nothing in the Constitution says: We in Congress have to pretend 
that we really live in the alternative bizarro world of the Supreme 
Court's false facts. Congress need not be an idiot and accept rulings 
that we plainly see could not stand without indisputably false facts 
propping them up. The fact that the Supreme Court won't go back and 
clean up its false facts mess should not disable us from addressing the 
zombie decisions. If this requires circumscribing the Court's 
authority, as far as I am concerned, too bad. Better that than to have 
citizens have to obey flawed decisions founded on false facts just 
because the Court liked who the winners were.
  This should not even be an issue. These factfinding rules have stood 
for centuries. It is only this politically driven Court that has 
stepped outside the bounds of history and tradition to go on these 
false factfinding galivants that have no proper role in judicial 
factfinding and that violate the boundaries of separation of powers. 
Reining it back in, in that circumstance, is a proper response, and if 
the Court doesn't like this, I would say: Heal thyself; quit breaking 
the historic process of factfinding, and quit finding obviously false 
facts, and go back and clean up those false-fact decisions.
  That is one option. They could do it, but, of course, the Federalist 
Society Justices won't because this is a captured Court, and the false 
fact outcomes are the outcomes the billionaires who pack the Court 
want.
  To be continued.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Hassan). The Senator from Rhode Island.

                          ____________________