[Congressional Record (Bound Edition), Volume 149 (2003), Part 20]
[Senate]
[Pages 28104-28120]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  INTERNET TAX NON-DISCRIMINATION ACT

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of S. 150, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 150) to make permanent the moratorium on taxes 
     on Internet access and multiple and discriminatory taxes on 
     electronic commerce imposed by the Internet Tax Freedom Act.

  Pending:

       McCain Amendment No. 2136, in the nature of a substitute.

  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, I hope we can get things done here. There is 
so much to be done. I said last night, and I spoke from the heart, 
people in Nevada at our military bases, Fallon and Ellis, need this 
Military Construction bill passed. I don't know why we are not going to 
do it today. If it is brought up next Monday or Tuesday, nothing is 
going to happen on it, so let's get that done.
  The Syria Accountability bill--I understand what is going on here. 
There is an effort made so there will be a vote Monday night on Syria 
Accountability because there is a time limit on it. If that is the 
case, fine. Remember, this is an important piece of legislation that 
requires our immediate attention. I don't think we should be doing 
things that take away for 1 minute our going into Syria's 
accountability, supporting the Hezbollah, and all the other activities 
they do that simply are not appropriate.
  We are in a situation where we have bills that need to be passed and 
conference reports that need to be approved. It is not going to happen 
for reasons I don't understand.
  Mr. DORGAN. Will the Senator yield for a question?
  Mr. REID. I will be happy to yield.
  Mr. DORGAN. Mr. President, my colleague from Arizona, I know, did not 
intend to think that if I were here last night, I would have advanced 
the cause of his legislation. I have no amendment to offer to the 
legislation. I had an opportunity yesterday to speak on several 
amendments. I think he probably inartfully described his angst about 
last evening. I didn't cause this legislation to be delayed. I am sure 
he knows that.
  Aside from that, I wonder if the Senator from Nevada will tell me 
about the urgency of legislation on the floor. The majority leader 
expresses an interest in moving this Senate along on legislation we 
need to get done. I am pretty unimpressed with the plea to do that when 
we understand that next week we are going to find nearly 2 days taken 
in a carnival situation with judgeships, when we have approved 98 
percent of the judges who have been sent to us by the White House.
  Now, in the middle of next week, as we try to finish this session, we 
are told we are going to have 30 hours, or take the better part of 2 
days, to sit here around the clock to talk about the several judges we 
have not confirmed. I ask the Senator from Nevada if that seems to him 
like we have an urgent situation when somebody is going to take 30 
hours out of the middle of next week and move off to have a 30-hour 
discussion on judgeships.
  I am pretty unimpressed with the plea for cooperation and expedited 
procedures on these issues as long as somebody is going to take nearly 
2 days out of the middle of next week to do something that has nothing 
to do with moving appropriations bills.
  As I ask the question, I wish to make an additional comment. I am an 
appropriator as well. I am not very impressed with what has happened. 
We were supposed to have done the appropriations bills and finished by 
October 1. We have been off and on appropriations bills. Look, if this 
is a priority, let's get on appropriations bills and stay on 
appropriations bills. That is what we ought to do. Isn't that the case, 
I ask my friend from Nevada?

[[Page 28105]]


  Mr. REID. I will be happy to respond to my friend's question. As I 
indicated earlier, to my knowledge, no one works harder in the Senate 
than the Senator from North Dakota. He is an appropriator and 
authorizer, understanding from his long years in Congress, both in the 
House and the Senate, that the last few weeks and days of a legislative 
session can become very intense. That is why I am at a total, absolute 
loss to understand how we could do this. We have been told; we heard it 
on the news--I went home last night and my wife said it was on the news 
at 6 o'clock Wednesday night until 12 o'clock Thursday night, we are 
going to be on the Senate floor listening to a discussion of what bad 
legislators we are because we haven't approved 100 percent of the 
judges the President has requested--168 to 4--and we have been told 
they are going to bring up another failed nominee, Priscilla Owen, next 
week.
  I understand they are also going to bring up a woman by the name of 
Kuhl from California and a woman by the name of Brown from California. 
I don't know if this is an effort to try to somehow embarrass the two 
Democratic--
  Mr. McCAIN. Parliamentary inquiry, Mr. President.
  Mr. REID.--Senators from California or what the reason might be.
  The PRESIDENT pro tempore. Does the Senator yield for a parliamentary 
inquiry?
  Mr. REID. For a parliamentary inquiry? I will be happy to do that, 
without losing my right to the floor. Yes.
  The PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I have a parliamentary inquiry: Wouldn't 
rule XVIIII 1(b) begin to apply concerning proceedings while 
legislation is before the Senate?
  The PRESIDENT pro tempore. That is correct. Under the procedures of 
the Senate, there would be a warning issued to Senators speaking on 
matters other than the business before the Senate in the first 3 hours.
  Mr. REID. Mr. President, I appreciate that very much. I appreciate my 
friend from Arizona bringing that to my attention. What I am going to 
talk about for a while is the Internet tax problem. Internet tax is a 
difficult situation, of course. It is something with which we need to 
deal. We understand there is some confusion as to what we are really 
dealing with. Some believe it has something to do with sales tax. This 
legislation does not. It deals with access.
  It is a very important issue, but it seems to me this matter could be 
resolved in a matter of minutes. I am told the Presiding Officer's 
amendment, in effect, would extend the present law for a couple years. 
It is my understanding the distinguished Senator from Alaska has 
suggested this be extended for 2 years and, if I am not mistaken, there 
are others who believe it should be extended for 2 years.
  I believe that should happen. I hope we will extend this for a couple 
years and then during that period of time make a determination as to 
whether the legislation that is now before the Senate should be 
implemented. I understand that.
  Also, one of the real problems we have is this schedule, which makes 
it very difficult to deal with this legislation. My friend from Arizona 
suggested we deal with relevant amendments. This is not going to happen 
in this present atmosphere. There will certainly be efforts made to 
offer not only relevant amendments, but, I would assume, maybe some 
nongermane amendments. I don't know that to be the case, but I assume 
so because we have so few opportunities to amend different pieces of 
legislation as they come through.
  On appropriations bills, we have been cooperating the best we can. As 
I indicated last night, we have done everything we can to make sure we 
did not have amendments that were offered to appropriations bills that 
would slow down the process. We have worked very hard in doing that.
  I am not going to talk for a long time this morning.
  I have no intention of interfering this morning with people's 
schedules. I know there are a lot of schedules that we have to move 
along. I want to do that. People have airplane schedules to meet on 
Friday. We were told yesterday that there would not be anything after 
12 today. At least people on our side made arrangements that that 
would, in fact, be the case. If there is some change, we need to know 
about that.
  I am happy that we got the CR passed. I look forward at a later time 
today to cooperate and agree to bringing forth Commerce-State-Justice. 
We want to do that at the appropriate time. Until there is some 
decision made on how long we are going to be involved on the Internet 
tax situation, we are not going to be able to give that consent.
  Finally, responding to my friend from North Dakota in a very brief 
way, what is taking place here is something that I have never seen in 
the many years--more than two decades--I have served in the Congress, 
that we would have in the late days of a legislative session this 
carnival, as the Senator from North Dakota referred to it--this circus, 
as I referred to it--and that is what the American people will think of 
it.
  The PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I believe the Senators from Tennessee and 
Delaware have an amendment filed. We are ready to consider that 
amendment or other amendments, if Senators have amendments that they 
would bring them to the floor so we can move forward with legislation.
  I mention to my friend from North Dakota, who is an articulate and 
passionate defender of his point of view on the Internet tax issue, the 
reason why I mentioned his absence last night was I meant he would have 
contributed a good deal to the debate and discussion given his many 
years of involvement in this issue, which I have always enjoyed, not 
only on that issue but on numerous others.
  So I would ask if our colleagues would file their amendments, bring 
them forward, as well as amendments that may be applicable.
  I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDENT pro tempore. The Senator from South Carolina is 
recognized.
  Mr. HOLLINGS. Mr. President, let me weigh in here by acknowledging 
the mistake we made in the Commerce Committee. In light of that 
statement, let me first commend our colleague from Oregon, Senator 
Wyden. His intent is good. We followed it. We supported it in the 
Commerce Committee. We made certain that the Internet was allowed to 
expand and progress without any tax burden. In that light, we passed 
the temporary moratorium. The intent of the Commerce Committee, when we 
reported this measure that is now before us, was to make permanent that 
moratorium with respect to individual taxes.
  What occurred in reporting was that we realized there was a certain 
language difficulty there. The fact is that the CBO today cannot 
schedule or account for that language on the budgetary impact. We knew 
that shortly after the reporting. It was all reported out on a verbal 
vote. We said this is going to the Finance Committee. They have tax 
experts and they will clean up our act for us and get the intent of the 
full committee and the Congress to continue and make permanent this 
moratorium.
  The fact is, under the present language, the moratorium extends not 
just to the individual consumer, but it goes the entire way down the 
pipeline as a tax exemption, thereby invading the power of the States 
to tax or not tax; thereby becoming, as the Senator from Tennessee, Mr. 
Alexander, says, an unfunded mandate. So now we have before us not the 
intent of the Congress at all.
  I recently was in China, and I can tell you we do not have to worry 
about trying to control the Internet. It is not with taxes that the 
Chinese are trying to control the Internet and its usage, expansion, 
and its progress. On the contrary, they are trying by law to control 
it, and they cannot. That cat is out of the bag and it is going to 
grow.

[[Page 28106]]

  The fundamental problem is just what the Senator from Tennessee has 
spotted. We have now invaded States and the locals and their taxing 
power, and that is not right. Right is right and wrong is wrong, and we 
made a mistake. Over the horizon, some of these corporate America 
giants are piggybacked. They said, oh, now look at what we have. If we 
can get in on this kind of extension, we will do away with some $4 
billion to $8 billion in taxes. Of course, they are not passing it on 
to the consumer. It has nothing whatsoever to do with the expansion or 
the progress and success of the Internet. That is what we have 
confronting us.
  In that light, the Senator from Delaware, Mr. Carper, and the Senator 
from Tennessee, Mr. Alexander, have gotten together an amendment that 
the distinguished Chair has joined in, and this Senator from South 
Carolina has joined in, so that we can pass this bill and extend it. 
That is what we all want to do. We like the present law and that is 
what we in the Commerce Committee thought we were doing, we were 
protecting consumers by extending the present law to make it permanent. 
We could then send that over to the House side, and if we can send that 
to the House, we can dispose of this knotty problem and move on to more 
important legislation.
  I thank the distinguished Senator from North Dakota for handling this 
bill. Once again, I wish to acknowledge the leadership of Senator Wyden 
from Oregon. He has led us on this Internet effort for a long period of 
time. He has made absolutely certain that the Internet continues to 
progress and succeed. We cannot come in now and tell the States how to 
tax and what to tax and not to tax.
  We are not trying to give a tax cut to corporate America. We want to 
make sure there is not a tax increase to consumers on the Internet. 
That is what the present law did until it expired a few days ago, and 
that is what ought to be extended and made permanent.
  I thank the Senator from North Dakota for handling this measure and 
again commend my colleague on the committee, Senator Wyden, for his 
leadership.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I am going to be brief. I have appreciated 
the distinguished Senator from South Carolina working with me on this 
over the years.
  The distinguished Senator from South Carolina is absolutely right. 
The committee bill did the job right. The committee bill kept in place 
the technological neutrality that we have established over the years--
the Senator from South Carolina, Senator Stevens, who has now left the 
floor, Chairman McCain, and others. The reason we did that years ago is 
that we did not have technological neutrality. The Internet was subject 
to taxes that were not subject to other areas, such as the snail mail 
delivery of papers.
  What has happened, however, is under the substitute that is being 
offered by the distinguished Senator from Tennessee, Mr. Alexander, we 
get away from the competitive neutrality that the distinguished Senator 
from South Carolina has been advocating.
  I want to be very specific about how that is being done, because I 
think a lot of Members believe that if they vote for the proposal by 
the Senator from Tennessee that it is somehow a safe vote, that all 
they are doing is continuing the status quo and it is really kind of an 
innocuous approach. It is not a safe vote. It is a vote to increase 
taxes.
  I want to be very specific in explaining how that is the case. What 
has happened as a result of changes in technology over the last few 
years is you now have, in a number of jurisdictions, DSL--Internet 
access through DSL being taxed but Internet access through cable modems 
not being taxed. That is what has happened as a result of the changes 
in technology and the various changes in government policy. So you 
already have been moving away from the competitive neutrality we have 
sought with respect to this issue.
  Let me repeat that. Today, Internet access through DSL is being taxed 
in a number of jurisdictions and Internet access through cable modem 
can't be taxed anywhere.
  Unfortunately, what would happen under the proposal of the Senator 
from Tennessee is that you would make it easier to continue that 
competitive disadvantage and, particularly under the proposal of the 
Senator from Tennessee, it would be easier to tax wireless Blackberry 
services.
  I am of the view that with 391 separate taxes on telecommunications 
administered in 10,000 different jurisdictions, people across America 
who have these Blackberrys, which have wireless Internet access, would 
be subject to scores of new taxes.
  So I say to colleagues who are looking at this issue and thinking 
that somehow the idea of a 2-year proposal is kind of an innocuous safe 
haven and really not a tax increase--I ask them to think about what it 
is going to mean for Blackberry users across the country.
  These are wireless devices. In a number of jurisdictions where 
Internet access is obtained through DSL, those services are already 
being taxed. That would be expanded under the 2-year alternative.
  What I would like us to do is what I believe we sought to do 5 years 
ago when Senator Hollings, Senator McCain, and others got together, and 
that is to ensure strict neutrality with respect to technology. The 
Internet wouldn't get a preference; the Internet wouldn't be hurt. The 
problem now that wireless users are facing with respect to DSL will be 
compounded if this 2-year alternative goes forward. I hope my 
colleagues will reject it for the reasons I outlined this morning.
  The PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, shortly the sponsors will be proposing an 
amendment. In the meantime, I ask to speak as in morning business for 4 
minutes.
  The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so 
ordered.
  (The remarks of Mr. McCain are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator Nevada.
  Mr. REID. Let me say about this bill, no matter the merit of it, I 
know people feel very strongly about it. The Senator from Tennessee, 
who was here in the Chamber a few minutes ago, the Senator from Ohio, 
Mr. Voinovich, the Senator from Virginia, Mr. Allen, the distinguished 
Senator from Oregon, Mr. Wyden--they have strong feelings about this. 
Their views do not coincide. I know how strong their feelings are.
  But this legislation, with all due respect to the distinguished 
chairman of the Commerce Committee, isn't going to go anywhere today or 
Monday or Tuesday. I think there should be some effort made to resolve 
the issue. I am a member of the Commerce Committee. I don't understand 
all the issues, but I understand the issues on this floor and nothing 
is going to happen.
  I would say to the majority that if they are looking for votes today, 
they would be better off looking for votes to pass the most important 
piece of legislation that I see that we could vote on quickly, and that 
would be the vote on the conference report dealing with Military 
Construction. We could vote on that. We could have a vote with debate 
equally divided with 5 minutes each. We could pass it. We could go to 
the Syria Accountability Act. We agreed last night to reduce our time. 
There are 90 minutes. We have agreed to take one hour half each and 
divide it up, as we indicated last night, several different ways. It 
seems to me we could do that, and we could be out of here by 12 o'clock 
after 2 very important votes.
  Let me tell you what the problem is. There is an effort made so we 
have something to do on Monday and Tuesday. I say to everyone that as a 
result of the carnival which is going to be started at 6 o'clock on 
Wednesday, nothing is going to happen Monday and Tuesday of any 
significance. There may be a vote on the Syria Accountability Act 
because it would be an easy vote to get up. They may bring up Military 
Construction, and they may say,

[[Page 28107]]

Isn't it too bad that the minority, the Democrats, aren't allowing us 
to pass Military Construction. But remember: I have offered numerous 
times over several days to take this up by unanimous consent. So all 
the pleas of sorrow and concern next week about our not taking care of 
our military officers around the country certainly will speak volumes 
because it simply is without any foundation because we can do that 
right here.
  We are on the Internet tax bill. One of the things we need to talk 
about on this Internet tax bill is the importance of judges. Judges 
enforce these laws. We have been involved in passing out of this Senate 
168 judges. We have turned down four. If the Internet tax measure is 
worth talking about, why don't we just move a little bit to the 30 
hours which is going to begin next Wednesday and start talking about 
judges today? That is fine. I don't see any reason why we should not do 
that.
  We can talk about the record that was set and that we have the lowest 
vacancy rate in the judiciary in some 15 years. Is it necessary because 
we have the lowest rate in some 15 years to spend 30 hours--2 days of 
the Senate's time--talking about judges in the circus atmosphere that 
will be there? It is all planned. It is going to be quite a show. It 
has all been laid out in the press. They are going to have all 51 
Republicans here, and that way it will be very easy to discern whether 
or not there is a quorum present.
  I am gathering my thoughts.
  We will have a lot of time to spend on Internet tax.
  Mr. McCAIN. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. The Senate will come to order.
  Mr. REID. Thank you very much. I appreciate very much bringing the 
Senate to order.
  Mr. McCAIN. I am sorry to say the Senate is still not in order.
  The PRESIDING OFFICER. The Senate will be in order.
  Mr. REID. Mr. President, the point is if there needs to be a 
discussion on judges, we don't have to wait until Wednesday at 6 
o'clock. We can start talking right now on this legislation because 
judges have to enforce the law. It is a law we are talking about. They 
have to do it on a trial level and they have to do it on an appellate 
level.
  We have given this President 98 percent of the judges he wants--98 
percent of the judges he wants. People talk about the Constitution. We 
can talk about the Constitution also. The majority makes these 
statements that a filibuster is a brand new thing; it has never 
happened with judges; isn't it a terrible thing this is happening in 
the Senate. Of course, it is without foundation. There is no truth to 
it. Filibusters have taken place on previous occasions, and it will 
take place again long after we are gone.
  To think we have to wait until Wednesday to talk about judges--we 
don't have to wait until Wednesday. We can talk now. This is a 
complicated piece of legislation. Don't you think we are going to need 
judges to interpret the law? Of course we are. The record we have is 
pretty good. Do you think the advise-and-consent clause of the 
Constitution meant every judge the President suggested to us we just 
approve them? Would the President be happy if we had 100 percent of his 
judges? How about 99 percent or 99.5 percent? Ninety-eight percent 
isn't good enough. It is not good enough, so now we are going to spend 
30 hours talking about why it shouldn't be 98 percent, it should be 100 
percent. I don't know what the proper ratio is the President wants.
  I am just giving everyone a little idea that we don't have to wait 
until Wednesday at 6 o'clock to talk about judges. We will talk about 
them now. I am proud of what we have done here in the Senate dealing 
with judges.
  I am glad Miguel Estrada was not confirmed. He wouldn't answer the 
questions. He wouldn't allow us to look at his memoranda when he was at 
the Solicitor's Office.
  I am glad we did not approve Priscilla Owen who the President's own 
attorney, Mr. Gonzales, said was not a good judge when he served with 
her in the Texas Supreme Court.
  I am glad that twice we did not approve William Pryor from Alabama 
who is an embarrassment to the State of Nevada and this country and 
shouldn't be a judge.
  We have approved 168 judges. That is how many we have approved.
  Mr. DORGAN. Mr. President, will the Senator from Nevada yield for a 
question?
  Mr. REID. I would be happy to yield for a question.
  Mr. DORGAN. I wonder if perhaps next week when the other side wishes 
to take 30 hours in the middle of the week to talk about the handful of 
judges--I believe the four who have not been confirmed by the Senate--I 
wonder if perhaps we should not take the time next week to talk 
individually about the 168 we have confirmed. Perhaps we ought to go 
through each one and talk about all 168.
  If time is not the issue--if the majority leader says time is urgent 
to talk about all of these other bills but in the middle of next week 
they will use 30 hours to come to the floor and talk about the 4 who 
have not been confirmed--perhaps we ought to take 60 hours to talk 
about the 168 we have confirmed.
  Let us move on the things that matter now and scuttle the 30 hours 
next week and this 30-hour discussion of the handful of judges who have 
not been approved. That doesn't make any sense to me.
  Mr. McCAIN. Will my friend from Nevada yield for another 
parliamentary inquiry?
  Mr. REID. In just a minute.
  The Internet bill which we are talking about here on the Senate floor 
is an important piece of legislation. I was present last night and 
listened to the statements of the Senator from Oregon. The Senator from 
Oregon understands legislation. He understands the importance of this 
Internet tax bill. He understands the definition of access. He 
understands what unfunded mandates mean, which was talked about by the 
Senator from Tennessee at such great length. I think it is important we 
understand this Internet tax bill. It deals with some very important 
issues. It is a bill that seeks to protect the Internet access from 
taxation. As the lines between the Internet and the media continue to 
blur, there is some concern the law could lead to States losing some of 
their existing tax base over time. For example, some long distance 
telephone traffic is now carried on the Internet. Movies, videos, and 
music programming can be downloaded onto the Internet as well as being 
viewed over cable and broadcast media.
  I say to everyone within the sound of my voice someone needs to 
interpret this law. If we pass something here, we will need someone to 
interpret this law.
  I know this is Friday morning and there is a lot to do. But I simply 
wanted everyone to know this sham, this scam, this circus, this 
carnival that is going to begin on Wednesday at 6 o'clock is just as I 
have described it. What we are going to do, as the Senator from North 
Dakota indicated, if you want to talk about 4 judges, or maybe add 2 
more or 6, is we will talk about 168. We are happy to do that.
  I know I could talk a lot longer. I understand the Pastore rule. I 
have a lot of stuff which I could talk about--the Internet tax, and 
weave in the judges, but as kind of a relief to everybody, I am going 
to sit down for the time being.
  Mr. McCAIN. Mr. President, I thank the Senator from Nevada, who 
understands parliamentary procedures as well as anyone.
  There are some discussions going on about some agreement that might 
be reached on this issue with some of my colleagues. I hope we can make 
progress on that.
  I yield the floor.
  Mr. DORGAN. Mr. President, I have not spoken on this issue this 
morning. This is a very important issue. I have been a supporter of the 
moratorium. I have supported the initial moratorium and the extension 
of the moratorium and will support again a moratorium. As far as I am 
concerned, it could be permanent if the proposition is, let us not tax 
the connection to the Internet. That was the presumption from the

[[Page 28108]]

start. Let us not retard the growth of this industry. Let us not allow 
States to create some special tax that could be discriminatory or 
punitive with respect to the Internet itself.
  Having said that, it is very important we create a definition that is 
appropriate. We have a current law. That current law could just be 
extended. Some of my colleagues say, if you just extend that and do not 
do anything about the circumstance with DSL, then you have an 
unfairness. That is something I understand and I am certainly willing 
to deal with that. But if we do not deal with the issue of how you 
interpret or how you describe what it is you are exempting, you can 
have serious financial problems. We are talking about billions of 
dollars' worth of problems for State and local governments.
  When we passed this moratorium out of the Commerce Committee, my 
colleague, Senator Hollings, was absolutely correct. We passed it out, 
I believe, 31 to 0. But we did it by saying we understand the 
definition of what is going to be exempted is not yet right. There is 
great controversy about it. So we will move this bill to the Senate but 
will work on solving the problem of the definition and what it means 
and its consequences before we get to the Senate. We tried very hard to 
do that but regrettably that has not been done. I want people to 
understand the framework in which this comes to the floor. Yes, the 
Commerce Committee passed it 31 to 0, but with the caveat that the 
definition of what is exempt is not yet solved or at least not yet 
agreed. So between then and now we have tried hard to see if we could 
fix that. At this point, it is not yet fixed.
  Mr. BURNS. If the Senator will yield on that point, 9 times out of 
10, whenever we get in trouble in this body it is in dealing with 
definitions up front. That is our problem now.
  I know they are trying to work out some way over there to define 
certain parts of this, but there has to be something between the 
amendment pending and where we want to go. We are all in agreement that 
in this industry, when the moratorium was first put on--to allow this 
industry, this industry that was a baby industry, to build out--what we 
did was right. The second time we extended it was the right thing to 
do. We have seen an explosion in an industry.
  There are, however, some sections that are discriminatory. There were 
some loopholes found by the States. So we have an inequitable situation 
due to definition.
  I hope the parties can work this out to the satisfaction of the 
intent of the Commerce Committee when we passed it the first time, when 
we extended it the second time, and now when we want to extend it 
another time.
  Maybe status quo is not exactly right. But nonetheless, it is 
something we have to work on. The Senator from North Dakota and the 
Senator from South Carolina have a point that we have not worked on the 
definition and how it will be determined or defined in the taxing 
entities of the States, or even, for that matter, counties and cities.
  I appreciate the Senator from North Dakota allowing me this time.
  Mr. DORGAN. Mr. President, I agree with that view expressed by 
Senator Burns.
  Let me continue by saying definitions are everything. The reason the 
States are very concerned is if the definition is not correct--that is, 
if it is not specific in exactly what Congress proposes--we could see 
billions and billions of dollars lost to the State and local 
governments in revenue they otherwise would have expected.
  We have a situation where we have a moratorium that expired. The 
moratorium ought to be extended. I was prepared to extend it 
permanently if we could find a definition that would be acceptable. 
That has not yet proven to be the case. Some are now discussing, and I 
was in some discussions a few moments ago, about a shorter term 
extension, perhaps 4 years, and use the definition that exists in 
current law in the moratorium that expired November 1 and try to fix 
the position with respect to DSL, which is a problem. I don't know how 
this will come out, but we have a responsibility to try to get this 
right. We would not want to do something permanently that has a problem 
attached to it, that will be a growing problem for State and local 
governments.
  Let me describe something that was in the newspaper recently because 
it tells the dilemma we face if we get this wrong. We have been moving 
in information technology from the old circuit switch telephone network 
to an Internet-based network. Whether we communicate by voice, e-mail, 
wireless, instant message, the data is being transmitted over the 
Internet in digital packets.
  If anyone wonders what I mean, look at a story in the Minneapolis 
Star and Tribune. It is Quest Corporation announcing this past week 
that it will roll out an Internet-based telephone service in Minnesota. 
It describes that. That is the Internet-based service called VoIP, 
Voice Over Internet Protocol. They say the approach to moving this out 
over the Internet--that is, telephone service over the Internet--will 
save on regulatory expenses and other costs and break the regulatory 
logjam that exists. The article goes on to say:

       The Quest Internet phone service would also be exempt from 
     salestax if Congress, as expected, extended and expands a tax 
     ban on Internet access to include Internet telephone service.

  You can see the consequences. If you do not understand exactly what 
you are doing and you have a definition that is not articulate and not 
focused exactly on what you intend to accomplish, we can have very 
significant consequences for State and local governments.
  Let me end where I started by saying I happen to have supported both 
of the previous moratoriums, and I will support a moratorium now 
because I don't believe we want tax policy that retards the development 
of the Internet. I don't believe we want tax policy that in any way 
injures or interrupts the substantial expansion in technology and 
information technology that we have seen in a very short period of 
time.
  However, even as we do this, let's make sure that we do not injure or 
provide significant problems for State and local governments because 
while we want to exempt the connection to the Internet, we did not want 
to, with an unfunded mandate as my colleague from Tennessee calls it, 
or some other approach, we begin preempting a retinue of State and 
local taxes that have been legitimately allied to various kinds of 
services. It is not unusual to pay a tax on certain kinds of telephone 
services. It is not unusual. That is one of the methods by which State 
and local governments have developed a revenue base.
  We described a very specific area that is off limits. Let's make sure 
that description is appropriate, fair, and specific relating to how the 
Congress intends this to work.
  I know my colleague from California wishes to speak. I yield the 
floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the Senator from North Dakota.
  Mr. President, I very much hope we do not pass the underlying bill 
today. I believe it is premature. In my 10 years in the Senate, I have 
never heard from more California cities, specifically 104 of them, 
indicating their concerns about what the underlying bill would do to 
the budgets of their cities.
  Here in my hand are some of the letters. This issue has energized 
cities in my State like no other. City mayors are incensed that we 
would pass a law without knowing with certainty how it would impact 
local revenues.
  I have received letters from the League of California Cities, which 
represents all of California's 478 cities, from county administrators, 
police officer associations, firefighter associations, all of whom are 
concerned about this bill--and I cannot answer their questions about 
it.
  But, they understand the larger issue. They are telling us the bill 
contains language that threatens their ability to collect existing 
taxes on certain telecommunications services. And, again, I cannot 
answer these questions, and these questions cannot be answered on the 
floor of the Senate today. They are too complex.

[[Page 28109]]

  This is precisely why the Carper-Alexander amendment is the most 
appropriate approach: extend the moratorium for another 2 years and do 
a study. Bring the cities together with the professionals, and see 
exactly what taxes are impacted by the underlying bill.
  I want to take a moment to commend Senators Allen and Wyden for their 
work and also to thank Senators McCain and Hollings for guiding the 
issue through the Commerce Committee.
  I also know the minority and majority staff on the Commerce and 
Finance Committees have been working to provide the Senate with the 
information it needs to weigh the competing views, and I thank them. 
But the competing views are still there, and there are no answers for 
the cities.
  Since we originally passed the Internet Tax Freedom Act, we knew this 
day would come, the day when we would need either to extend the tax 
moratorium or allow the temporary moratorium to expire.
  California has a passionate interest in maintaining unfettered access 
to the Internet. We have a globally recognized concentration of high-
tech and telecommunications firms. We provide much of the 
infrastructure required to gain access to the Internet and many of the 
services that make the Internet so useful. However, we have to make 
sure that maintaining tax-free access to the Internet does not 
inadvertently destroy the budgets of cities and counties throughout my 
State and the Nation. Many of them have come to rely on a variety of 
telecommunications services fees and taxes as an important part of 
their revenue base.
  Now, I support the permanent extension of the Internet Tax Freedom 
Act, but if I had to vote today on it, I would have to vote no. I am a 
cosponsor of Senator Wyden's original legislation that would make 
permanent the current moratorium. But if I had to vote today on the 
Allen-Wyden bill, I would vote no because a number of uncertainties 
have arisen and nobody can answer those uncertainties.
  Additionally, as a letter circulating through the Senate today 
indicates, we have been told that we violate the Unfunded Mandates Act. 
I was here when that Act was passed in 1995. I voted for that Act. Now 
we hear from the Congressional Budget Office that the underlying bill 
would, in fact, create an unfunded mandate on States and local 
jurisdictions. I think we need to find out how and what can be done to 
prevent that from happening.
  If this bill's definition of telecommunications services is 
interpreted in an overly broad way, as many of us think it may be, it 
will negatively impact local budgets. It will lead to the possibility 
of reduced preparedness in our firehouses and our police stations and 
less money for our schools, and it will do so at a time when States and 
cities face large budget deficits.
  Right now, in San Diego, CA, a huge debate is going on as to whether 
the San Diego County firefighting forces are adequate; whether they 
have the vehicles, whether they have the training, whether they have 
the ability to really respond to fire conflagration. If we move ahead 
precipitously today, this bill will make that situation worse.
  I must tell you, as a former mayor, these are my concerns. For San 
Francisco, the city in which I served, the bill's current definition of 
telecommunications services could lead to a loss of $30 million 
annually. San Francisco, as their experts compute, will lose $30 
million of existing taxes if we pass this bill in its present form. 
That translates into 300 police and firefighters.
  In the city of Pasadena, the mayor, Bill Bogaard, says this would 
cost his city $11.4 million. That is the legislation before this body 
today. Let me quote from his letter:

       By using vague language to include broadband Internet 
     access under the moratorium, we fear that the bill will allow 
     telephone and cable companies to use that protection to avoid 
     paying local franchise or utility fees.

  He goes on to state:

       It is our understanding that it was not the intent of the 
     bill's sponsors to endanger local franchising authority, but 
     the legislation has yet to be changed to correct these 
     unintended consequences.

  Mr. President, this is not the first time in this debate we have 
heard someone mention unintended consequences. The distinguished 
Senator from New Jersey, Mr. Lautenberg, mentioned last night that 
since this debate has started we have been hearing it from all of our 
mayors and State officials all across this great land.
  I wish to quote from one more of the letters I have received from our 
mayors. This is from Judith Valles, the mayor of the City of San 
Bernardino, which was the focus of one of California's main wildfires. 
She wrote to me to point out, and I quote:

       Currently, 150 cities in California levy a utility users 
     tax, or what is called a UUT, which in many cases includes 
     telephone and cable television services. Utility users taxes 
     provide a critical contribution to local discretionary 
     revenue, on average 15 percent of general purpose revenues, 
     making the utility users tax vital in helping fund critical 
     city services, particularly public safety.

  This comes from a mayor who is still dealing with the threat that her 
city faced due to the recent California wildfires. And why? Because we 
are afraid to step back and give the telecommunications industry and 
cities more time to work out a solution to this issue with which they 
can both live?
  I appreciate Senator Wyden's frustration that if we let the debate 
rage on too long, it will never end. I appreciate that sometimes you 
have to make a decision, and that if it is not perfect, you fix it 
along the way. But this is not one of those times.
  If you run the risk of repealing taxes that are already in place, you 
unavoidably affect local budgets, and I am not willing to do that at 
this time. I believe people want their tax dollars used on the local 
level. They want better police. They want better fire protection. They 
want the emergency services for adequate protection, particularly at 
this point when America stands a risk from terror. And it makes no 
sense to rush to pass a bill when you have cities all across this 
country saying: Don't do it. It is going to inevitably impact what we 
now levy.
  This will not affect the telecommunications companies because the 
Carper-Alexander amendment extends the current law with minor changes. 
Just extend the moratorium for 2 years, do the study, permit the 
parties to come together and work this out.
  I do not think it is one Member's goal to undermine the existing tax 
base of local cities and counties across this great Nation in passing a 
permanent moratorium. We have never wanted to do that. We are told 
today that the underlying bill does, in fact, do that. So why--why--
rush to pass it? My goodness.
  I love my high-tech companies, but the cities and counties are where 
the people are, and they need police and fire and emergency services. 
In a day of cutbacks, it makes no sense, because we don't know what we 
are doing today--and to simply willy-nilly pass a bill that may well do 
that makes no sense. We then will have to shuffle around and find a way 
to correct it at some point in the future. In the meantime, budgets are 
upset all across the Nation. That is not good government, it is not 
good public policy, and it is not good legislation.
  I am here to add my support and the support of 104 cities in 
California to the Carper-Alexander amendment. I would be most happy to 
offer my services in any way I can to work with the committee chair, 
the ranking member, and Senators Wyden and Allen, to try to find a 
solution. It makes no sense to pass something without an adequate study 
and the reconciliation of the industries.
  I remember when we were working out a solution to the taxation of 
cellular phone calls. At that time, we told the parties that we needed 
them to develop a mutually agreeable solution to the problem of how to 
tax mobile phone calls and then present it to Congress. The cellular 
industry and local governments did exactly that. We now have a cellular 
phone tax standard in place that most people can live with. It is my 
understanding that the cities and States would be comfortable with this

[[Page 28110]]

same approach to Internet access taxes. That is the kind of approach I 
believe will make this debate much more productive.
  The debate on this issue should not be centered on who is right and 
who is wrong. Unfortunately, that is where we are today. On one side we 
have the telecommunications industry saying the cities are overreacting 
to the impact this bill will have on their budgets. On the other side, 
we have the cities saying the telecommunications industry is seeking 
special, nearly unprecedented, tax treatment.
  Why is it we would not want to give these two stakeholders time to 
put their heads together and bring Congress an agreement they can both 
live with?
  Let me be clear: I want a permanent extension but not at the cost of 
laying off firefighters, police officers, and teachers.
  Should the Carper-Alexander amendment not be adopted, I will offer my 
own amendment that simply strips out this confused language in the 
context of a permanent moratorium. While not a perfect solution to the 
complex problem we face, it is far better than forcing our cities and 
States to send out pink slips to public safety personnel. I am hoping 
it will not come to that. Cities and their technical experts have my 
attention. This is true throughout the rest of the United States.
  I hope the Carper-Alexander amendment will be passed and that the 
moratorium will continue for 2 years so a study can be conducted and a 
reconciliation of conflicts within this legislation settled so that we 
can move ahead knowing we have not inadvertently decimated up to 15 
percent of the tax base of local communities.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I ask unanimous consent that the letters 
which I have from cities around the State of California be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  City of Burbank,


                                   Office of the City Council,

                                  Burbank, CA, September 12, 2003.
     Re HR49 (Cox); SB52 (Wyden) and SB 150 (Allen)--Oppose.

     Hon. Dianne Feinstein,
     Hart Senate Building,
     Washington, DC.
       Dear Senator Feinstein: I am writing on behalf of the City 
     of Burbank to urge your opposition to provisions included in 
     the ``Internet Tax Non-Discrimination Act of 2003'' that 
     would modify the definition of ``Internet Access'' to include 
     telecommunications services ``to the extent such services are 
     used to provide Internet Access''. This expansion of the 
     definition would result in a loss of badly needed revenues 
     for California's cities and significantly affect our city's 
     ability to provide essential services. This is particularly 
     important during these tough economic times.
        Currently 150 cities in California levy a utility users 
     tax (UUT), which in many cases, including our city, includes 
     telephone and cable television services. The UUT provides a 
     critical contribution to local revenues (nearly 15% of 
     general fund revenues); in fact, it is our third largest 
     revenue source (behind sales tax and property tax), making 
     the UUT vital in helping fund critical city services, 
     particularly public safety. The City of Burbank, along with 
     other cities, are already experiencing flat growth in the UUT 
     due mostly to the intense competition between phone service 
     providers, particularly cellular. Therefore, any additional 
     reduction to our UUT (or any other revenue source for that 
     matter) will have dire fiscal consequences.
        The City of Burbank's UUT projection for Fiscal Year 2003-
     04 is $16.5MM which is needed to pay for essential safety and 
     human services programs. Although it is difficult to 
     segregate the impact of excluding the internet access portion 
     of our UUT revenues, here are some examples as to what total 
     UUT figure of $16.5MM can fund for one full year: Salaries 
     plus benefits for 36 fire fighters; salaries plus benefits 
     for 40 police officers; run our library program (salaries/
     benefits plus operating costs); run both the Daycamp/Summer 
     Parks/Teen Program and the Organized Sports program 
     (salaries/benefits plus operating costs); and run the Senior 
     Nutrition Program, the Human Services Program, the 
     Transportation Program, the Senior Recreation Program 
     (salaries/benefits plus operating costs).
        As you contemplate this limitation on local governments' 
     ability to raise local revenue, it is essential to put this 
     restriction in the context with other limitations California 
     local governments currently face as we try to meet critical 
     local service needs. Remember that over the past several 
     decades, cities' control of discretionary revenue sources has 
     been severely eroded by state actions.
        With the passage of Proposition 13, the state was given 
     control over the allocation of local property taxes. In the 
     early 1990s, the state exercised this control diverting 
     billions in dollars of local property taxes to meet the state 
     obligation to fund schools. In the 2003-04 fiscal year alone, 
     this shift is estimated to be a loss of $5.4 billion from 
     cities, counties and special districts.
        In addition, cities and counties are faced with a 
     shortfall of Vehicle License Fee revenues in the current 
     fiscal year due to the ``deferral'' of payment of $825 
     million in backfill owed until 2006. This will have a 
     critical impact on the ability to provide local services 
     during the current fiscal year. The utility users tax 
     represents one of the few local revenue discretionary revenue 
     sources with rates, exemptions and terms determined at the 
     local level to conform to community interests and needs.
        Although Burbank fully supports and recognizes the 
     importance of fostering the development of the Internet and 
     other new technologies, Congress must also recognize as it 
     considers this legislation that cities in California face 
     serious fiscal constraints at both the state and local level 
     already.
        We need your help to ensure that this legislation is 
     amended to remove this detrimental expansion of the 
     definition of ``Internet access.'' We look forward to working 
     closely with you on this urgent matter.
           Sincerely,
                                                    Stacey Murphy,
     Mayor.
                                  ____

                                                  City of Concord,


                                          Office of the Mayor,

                                     Concord, CA, October 1, 2003.
     Re S. 150--Internet Tax Non-Discrimination Act--Oppose/Amend.

     Hon. Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: The House has passed and the Senate 
     is poised to pass legislation (H.R. 49/S. 150) that, 
     according to the MultiState Tax Commission, will result in a 
     loss of revenue to state and local governments of up to $8.75 
     billion annually by 2006, and could be even greater as right-
     of-way rents from non-tax franchise and access line fees are 
     also lost.
       In a report released September 24, the MultiState Tax 
     Commission estimated that for every $1 billion these bills 
     cost state and local governments, our local communities will 
     lose: Almost 20,000 police officers; almost 20,000 
     firefighters; more than 27,000 hospital workers; almost 
     25,000 teachers; and more than 17,000 college instructors.
       The legislation began as a simple extension of the Internet 
     Sales Tax moratorium, which was scheduled to expire November 
     1, 2003. H.R. 49/S. 150 has been amended to make the tax 
     moratorium permanent and to expand the types of services that 
     cannot be taxed.
       Services for accessing the Internet that are taxable or 
     subject to franchise fees today--such as dial-up telephone 
     service, DSL and cable Internet services--would be exempt 
     from taxes and potentially free from franchise obligations.
       Under current law, Internet access, ``does not include 
     telecommunication services''. This bill would expand the 
     definition of Internet access and thereby impose not only a 
     permanent moratorium on Internet access fees but also on 
     traditional telecommunications taxes.
       I urge you to amend the bill to clarify that the moratorium 
     does not apply to traditional telecommunication services.
           Very truly yours,
                                                 Mark A. Peterson,
     Mayor.
                                  ____



                                               City of Covina,

                                     Covina, CA, October 21, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: The City of Covina is writing to 
     express our concerns with S. 150, the ``Internet Tax Non-
     Discrimination Act.'' We fear that the language of S. 150 
     will deprive municipalities nationwide of billions of dollars 
     in tax and fee revenues in the years ahead and, in the 
     meantime, will result in litigation and confusion. It has 
     been our experience that some industry participants will use 
     the language of S. 150 to avoid paying local 
     telecommunications and utility taxes, as well as franchise 
     fees and rights-of-way fees owed on infrastructure deployed 
     in the public rights-of-way.
       As currently worded, S. 150 poses a direct threat to two 
     traditional, yet separate and distinct, municipal powers. 
     These powers must be preserved. Municipal budgets are already 
     strapped by the recession, reduced federal and state budgets, 
     and the demands of homeland security. Local governments can 
     not afford to be hamstrung still further to the point where 
     vital municipal services are curtailed or eliminated 
     altogether.
       The first traditional municipal power that S. 150 threatens 
     is the ability of local governments to impose 
     telecommunications

[[Page 28111]]

     taxes or to apply local utility taxes to the provision of 
     telecommunications services. Municipalities in many states 
     are authorized to impose such taxes, and many municipalities 
     currently rely on such taxes as a critical part of their 
     budget. Now, by expanding the scope of the Internet tax 
     moratorium to include telecommunications services to the 
     extent they are used to access the Internet, S. 150 could 
     immunize the bulk of all future telecommunications services 
     from local telecommunications and utility taxes. That would 
     not only starve local budgets; it also would be highly 
     regressive and unfair: Poorer residents who lack a computer 
     or can afford only plain/traditional telephone service would 
     continue to be subject to local taxes, while businesses and 
     wealthier residents with computers, who can substitute e-mail 
     and future technologies like voice-over-Internet-protocol for 
     dial tone service, would be immune from local taxes.
       The second traditional municipal power that S. 150 
     threatens is the ability of local governments to impose 
     franchise fees as ``rent'' for use of public rights-of-way on 
     companies, such as telecommunications and cable service 
     providers that use public property for private profit. Over 
     one hundred years of court-supported municipal rights are at 
     stake here. In 1893, the Supreme Court clarified that right-
     of-way fees are not taxes but payments in the form of rent. 
     City of St. Louis v. Western Union Tel. Co., 148 US 92, 99, 
     13 S.CT. 485, 488 (1893). Ironically, the Supreme Court was 
     then considering whether the federal government could require 
     local governments to allow telegraph companies access to the 
     public right-of-way without compensation. More recently, the 
     5th Circuit in City of Dallas v. FCC, 118 F. 3d 393 (5th Cir. 
     1997) cited the holding of St. Louis when it found that a 
     franchise fee is not a tax, but an expense of doing business 
     that is essentially a form of rent. Covina receives a five 
     (5) percent franchise fee on incumbent local 
     telecommunication cable service providers as compensation for 
     use of local rights-of-way.
       Federal legislation requiring local governments to allow 
     private use of public property such as the right-of-way, free 
     from local fees and charges, could be viewed as 
     constitutionally suspect. Such legislation might constitute a 
     federal taking of local government property without 
     compensation, or federal commandeering of local government 
     property to implement a federal regulatory program. Please 
     consider these concerns in developing a program that achieves 
     federal goals without harming local governments.
       The City is prepared to work with you to:
       Clarify that in adopting S. 150 and its House counterpart 
     (H.R. 49), the Congress does not intend to interfere with or 
     in any way limit the imposition or collection of any 
     municipal telecommunications taxes or utility taxes 
     applicable to telecommunications, nor with any municipal 
     rights-of-way fees nor gross percentage fees collected in 
     lieu of right-of-way fees.
       Clarify that S. 150 does not preempt the imposition or 
     collection of excise taxes of general applicability 
     (including telecommunications and utility taxes) on services 
     that employ telecommunications, cellular or cable television 
     facilities, even if those services offer access to the 
     Internet.
       Without these clarifications, the adverse financial impact 
     of S. 150 on local governments will be immense: the loss of 
     billions of dollars in telecommunications fees and taxes in 
     the years ahead for cities across the nation--fees and taxes 
     that have been consistently upheld in court. If the 
     legislation is passed with the currently proposed language, 
     Covina can calculate the loss to its already-strained 
     municipal budget, with direct effects on the General Fund. 
     Municipalities in California and elsewhere have long imposed 
     gross receipt-based fees on telecommunications, cable 
     television and other providers' use of local rights-of-way 
     for private profit, and many municipalities across the nation 
     have imposed gross receipts-based taxes on the provision of 
     telecommunications service or utility services, including 
     telecommunications and cable television services. Federal 
     preemption of these rights, whether intended or not, will 
     result in immediate financial loss to Covina, and the size of 
     that loss will only grow in the future as more communications 
     shift to broadband, Internet-based technologies. We are 
     confident this is not the legacy you intend or desire. We are 
     offering to work with you in any way we can to avoid such an 
     unfortunate result.
           Sincerely,
                                                 Walter Allen III,
     Mayor.
                                  ____

                                                 City of Pasadena,


                                          Office of the Mayor,

                                 Pasadena, CA, September 26, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: The City of Pasadena has some 
     concerns with legislation that has been approved by the House 
     and is pending in the Senate (HR 49, S 150) that would extend 
     on a permanent basis the current moratorium on state and 
     local taxation of Internet access fees.
       While the City has not actively opposed the extension of 
     the 1998 Internet Tax Freedom Act moratorium (even though it 
     does represent a federal intrusion into an issue 
     traditionally handled on the local level), we do believe 
     there is room for interpretation regarding the manner in 
     which the legislation treats broadband Internet access. By 
     using vague language to include broadband Internet access 
     under the moratorium, we fear that the bill will allow 
     telephone and cable television companies to use that 
     protection to avoid paying local franchise or utility fees. 
     These fees are fair and equitable payments for a company's 
     use of the public right-of-way, and to lose that revenue 
     would be damaging to our local budgets that are already 
     strained.
       It is our understanding that it was not the intent of the 
     bill sponsors to endanger local franchising authority but the 
     legislation has yet to be changed to correct these unintended 
     consequences. I hope that you will urge your colleagues to 
     amend the legislation to extend the Internet tax moratorium 
     to ensure local franchising, utility fees, and right-of-way 
     authority are protected. Thank you for your assistance with 
     this important matter.
           Sincerely,
                                                     Bill Bogaard,
     Mayor.
                                  ____



                                             City of Lakeport,

                                   Lakeport, CA, October 14, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: The City of Lakeport seeks your 
     assistance in opposing language added to the Internet Tax 
     Non-Discrimination Act (S. 150) that would expand the 
     coverage of the moratorium by adding ``telecommunications 
     services'' to the definition of Internet access. It would 
     prohibit a local tax on any ``telecommunication service'' 
     that is used for Internet access. Nearly all telephone 
     services, including local dial up, wireless, satellite, and 
     broadband (DSL and cable modem), provide Internet access.
       This language would have a major adverse impact on our City 
     and the financing of its essential services, such as police, 
     fire, streets, and parks.
       Soon, major telephone and Internet service providers will 
     offer ``packages'' that bundle together Internet access and 
     unlimited telephone services. Unfortunately, under the 
     proposed language, such bundled services will likely be 
     considered ``tax-free'', which we find regressive and unfair. 
     Even if the average consumer would continue to be subject to 
     the local tax (UUT) on traditional telecommunication 
     services, those persons who could afford computers and high-
     speed Internet access (i.e., DSL and cable modem) would slip 
     through this loophole and permanently escape taxation on 
     similar services. No matter how much we wish to support the 
     continued growth of the Internet, discriminatory taxation, or 
     favoring the ``haves'' over the ``have-nots,'' is not the 
     answer.
       Finally, we want to assure you that we are in no way asking 
     for your opposition to this language as a way of helping us 
     achieve new tax revenues. We are only asking for help with 
     protecting our city's badly needed existing tax revenues on 
     telecommuncation services.
       Thank you for your attention to this urgent matter. If you 
     have any questions or need additional information, please 
     feel free to call the League of California Cities Executive 
     Director, Chris McKenzie, or your staff can contact the 
     League's Washington representative, Eve M. O'Toole.
           Sincerely,
                                                      R.E. Lamkin,
     Mayor.
                                  ____



                                             City of Monterey,

                                 Monterey, CA, September 15, 2003.
     Subject: Opposition to Internet Tax Non-Discrimination Act of 
         2003.

     Hon. Dianne Feinstein,
     U.S. Senator, Hart Building,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the City of Monterey, 
     I am writing to urge your opposition to provisions included 
     in the ``Internet Tax Non-Discrimination Act of 2003'' that 
     would modify the definition of ``Internet Access'' to include 
     telecommunications services ``to the extent such services are 
     used to provide Internet Access''. This expansion of the 
     definition would result in a loss of badly needed revenues 
     for California's cities and significantly affect out City's 
     ability to provide essential services.
       Utility users taxes provide a critical contribution to 
     local discretionary revenues making the UUT vital in helping 
     fund critical city services, particularly public safety. For 
     the City of Monterey this amounts to $2.4 million annually or 
     about 6% of the General Fund budget. This revenue source 
     directly supports police, fire, parks, streets and library 
     services. The significance of the UUT has only increased as 
     our City's other discretionary revenues have come under 
     siege.
       As you contemplate this limitation on local governments' 
     ability to raise discretionary revenue, it is essential to 
     put this restriction in the context with other limitations 
     California local governments currently face as we try to meet 
     critical local service needs. Remember that over the past 
     several

[[Page 28112]]

     decades, cities' control of discretionary revenue sources has 
     been severely eroded by state actions.
       With the passage of Proposition 13, the state was given 
     control over the allocation of local property taxes. In the 
     early 1990's, the state exercised this control diverting 
     billions in dollars of local property taxes to meet the state 
     obligation to fund schools. In the 2003-04 fiscal year alone, 
     this shift is estimated to be a loss of $5.4 billion from 
     cities, counties and special districts.
       In addition, cities and counties are faced with a shortfall 
     of Vehicle License Fee revenues in the current fiscal year 
     due to the ``deferral'' of payment of $825 million in 
     backfill owed until 2006. This will have a critical impact on 
     the ability to provide local services during the current 
     fiscal year. The utility users tax represents one of the few 
     local revenue discretionary revenue sources with rates, 
     exemptions and terms determined at the local level to conform 
     to community interests and needs.
       Although the City of Monterey fully supports and recognizes 
     the importance of fostering the developing of the Internet 
     and other new technologies, Congress must also recognize as 
     it considers this legislation that cities in California face 
     serious fiscal constraints at both the state and local levels 
     already.
       We need your help to ensure that this legislation is 
     amended to remove this detrimental expansion of the 
     definition of ``Internet access.'' We look forward to working 
     closely with you on this urgent matter.
           Sincerely,
                                                       Dan Albert,
     Mayor.
                                  ____

                                            City of Moreno Valley,


                                          Office of the Mayor,

                            Moreno Valley, CA, September 16, 2003.
     Subject: Internet Tax Non-Discrimination Act of 2003--Oppose.

     Hon. Dianne Feinstein,
     U.S. Senate, Hart Building,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the City of Moreno 
     Valley, I respectfully request that you oppose provisions 
     included in the Internet Tax Non-Discrimination Act of 2003 
     (H.R. 49 and S. 52) that would change the definition of 
     ``Internet access'' to include telecommunications services 
     ``to the extent that such services are used to provide 
     Internet access.'' This expansion of the definition would 
     result in the loss of badly needed revenues for California's 
     cities, and negatively affect our city's ability to provide 
     essential services.
        Moreno Valley is one of 150 cities in California that levy 
     a utility users tax (UUT), which in our case includes 
     telephone and cable television services. Utility users' taxes 
     contribute significantly to the health of these cities' 
     discretionary budgets. On average, the UUT comprises fifteen 
     percent (15%) of general-purpose revenues in cities where it 
     is collected. In Moreno Valley, the $9.4 million UUT 
     comprises twenty one percent (21%) of the city's general fund 
     revenue for fiscal year 2003/2004. Our largest general fund 
     expense, by far, is public safety; sixty one percent (61%) of 
     the city's general fund will be spent this year for police 
     and fire services. Exemption of telecommunications services 
     from taxation based solely on their relation to consumer 
     Internet use will greatly hinder our efforts to finance these 
     fundamental services.
        Please consider this particular limitation on local 
     governments' ability to raise discretionary revenues in 
     context with state legislative actions, which have 
     historically eroded local control of general-purpose funds. 
     With the passage of Proposition 13, the state assumed control 
     over the allocation of local property taxes. The state abused 
     this authority in the early 1990's by ``temporarily'' 
     shifting property tax dollars earmarked for local government, 
     to meet the state's obligation to fund schools. A decade 
     later, this shift results in a loss of $5.4 billion from 
     cities for fiscal year 2003/2004 alone.
        In the state budget for the current year, first-quarter 
     revenue payments from the Vehicle License Fee, another 
     constitutionally-protected revenue source for cities, have 
     been ``deferred'' until 2006. The result: an immediate loss 
     of $825 million for cities statewide, and $1.8 million for 
     Moreno Valley. Additionally, $135 million in property tax 
     revenue was shifted from local redevelopment agencies this 
     year, augmenting Moreno Valley's revenue losses by $300,000.
        Moreno Valley and other California cities have managed to 
     retain adequate service levels despite the poor fiscal 
     management practices of the state, primarily through the 
     development of new revenue sources. While the City fully 
     supports and recognizes the importance of fostering the 
     development of the Internet and other new technologies, we 
     hope the Senate recognizes that local governments cannot 
     maintain vital services if the state and Federal governments 
     continue to impair their ability to generate revenue.
        We need your help to ensure that this legislation is 
     amended to remove this detrimental expansion of the 
     definition of ``Internet access.'' If there is any additional 
     information we can offer you regarding this urgent matter, 
     please contact us.
           Sincerely,
                                              William H. Batey II,
     Mayor.
                                  ____



                                               City of Novato,

                                     Novato, CA, October 13, 2003.
     Senator Dianne Feinstein,
     Hart Building, U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the City of Novato, I 
     am writing to urge your opposition to provisions included in 
     the ``Internet Tax Non-Discrimination Act of 2003'' that 
     would modify the definition of ``Internet Access'' to include 
     telecommunications services ``to the extent such services are 
     used to provide Internet Access''. This expansion of the 
     definition would result in a loss of badly needed revenues 
     for California's cities and significantly affect our city's 
     ability to provide essential services.
       Currently 150 cities in California levy a utility users tax 
     (UUT), which in many cases includes telephone and cable 
     television services. Utility users taxes provide a critical 
     contribution to local discretionary revenues, on the average 
     15 percent of general-purpose revenues, making the UUT vital 
     in helping fund critical city services, particularly public 
     safety. Include how much revenue your City estimates is 
     collected from your UUT? And what services in your City do 
     these tax revenues support? Please be as specific as possible 
     and translate into terms of potential cuts to specific 
     programs or personnel. The significance of the UUT has only 
     increased as our City's other discretionary revenues have 
     come under siege.
       As you contemplate this limitation on local governments' 
     ability to raise discretionary revenue, it is essential to 
     put this restriction in the context with other limitations 
     California local governments currently face as we try to meet 
     critical local service needs. Remember that over the past 
     several decades, cities' control of discretionary revenue 
     sources has been severely eroded by state actions.
       With the passage of Proposition 13, the state was given 
     control over the allocation of local property taxes. In the 
     early 1990s, the state exercised this control diverting 
     billions in dollars of local property taxes to meet the state 
     obligation to fund schools. In the 2003-04 fiscal year alone, 
     this shift is estimated to be a loss of $5.4 billion from 
     cities, counties and special districts.
       In addition, cities and counties are faced with a shortfall 
     of Vehicle License Fee revenues in the current fiscal year 
     due to the ``deferral'' of payment of $825 million in 
     backfill owed until 2006. This will have a critical impact on 
     the ability to provide local services during the current 
     fiscal year. The utility users tax represents one of the few 
     local revenues discretionary revenue sources with rates, 
     exemptions and terms determined at the local level to conform 
     to community interests and needs.
       Although the City of Novato fully supports and recognizes 
     the importance of fostering the development of the Internet 
     and other new technologies, Congress must also recognize as 
     it considers this legislation that cities in California face 
     serious fiscal constraints at both the state and local level 
     already.
       We need your help to ensure that this legislation is 
     amended to remove this detrimental expansion of the 
     definition of ``Internet access.'' We look forward to working 
     closely with you on this urgent matter.
           Sincerely,
                                                 Roderick J. Wood,
     City Manager.
                                  ____



                                            City of Placentia,

                                   Placentia, CA, October 1, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC
       Dear Senator Feinstein: On behalf of the Citizens of 
     Placentia, I am writing to express my Concerns about S. 150, 
     the Internet Tax Non-Discrimination Act. I am very concerned 
     about language in the bill that expands the definition of 
     ``Internet access'' and thereby imposes a permanent 
     moratorium not only on state and local taxes on Internet 
     access fees but also on traditional telecommunications taxes. 
     I strongly urge that you amend the language to clarify that 
     the moratorium only applies to Internet access and to to 
     other taxable telecommunications services or products, or to 
     franchise or rights-of-way fees.
       Under current law, Internet access ``does not include 
     telecommunication services.'' The bill would change this to 
     ``does not include telecommunication services except to the 
     extent that such service is used for Internet access.'' While 
     this proposal may have been well intended in that it proposes 
     to ensure that the moratorium does not favor one form of 
     technology over another, the language is so broad it can be 
     interpreted to mean we will be prohibited from collecting 
     taxes on traditional telecommunications services.
       As you know, states and cities across America are suffering 
     from the most severe fiscal crisis since World War II. The 
     loss of our telecommunications revenue would be a significant 
     blow to Placentia. The city could lose an estimated $500,000 
     if this bill is enacted as currently drafted. We can not 
     afford such a loss.

[[Page 28113]]

       As reported by the Senate Commerce Committee, S. 150 is 
     unacceptable. Again, I urge you to amend the bill to clarify 
     that the moratorium does not apply to traditional 
     telecommunications services. If you have any questions, feel 
     free to contact me at 714/993-8117.
           Sincerely,
                                                   Robert D'Amato,
     City Administrator.
                                  ____

                                           City of San Bernardino,


                                          Office of the Mayor,

                           San Bernardino, CA, September 12, 2003.
     Hon. Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the City of San 
     Bernardino I am writing to urge your opposition to provisions 
     included in the ``Internet Tax Non-Discrimination Act of 
     2003'' that would modify the definition of ``Internet 
     Access'' to include telecommunications services ``to the 
     extent such services are used to provide Internet Access''. 
     This expansion of the definition would result in a loss of 
     badly needed revenues for California's cities and 
     significantly affect our city's ability to provide essential 
     services.
       Currently 150 cities in California levy a utility users tax 
     (UUT), which in many cases includes telephone and cable 
     television services. Utility users taxes provide a critical 
     contribution to local discretionary revenues, on the average 
     15% of general-purpose revenues, making the UUT vital in 
     helping fund critical city services, particularly public 
     safety. The significance of the UUT has only increased as our 
     City's other discretionary revenues have come under siege.
       As you contemplate this limitation on local governments' 
     ability to raise discretionary revenue, it is essential to 
     put this restriction in the context with other limitations 
     California local governments currently face as we try to meet 
     critical local service needs. Remember that over the past 
     several decades, cities' control of discretionary revenue 
     sources has been severely eroded by state actions.
       With the passage of Proposition 13, the state was given 
     control over the allocation of local property taxes. In the 
     early 1990s, the state exercised this control diverting 
     billions in dollars of local property taxes to meet the state 
     obligation to fund schools. In the 2003-04 fiscal year alone, 
     this shift is estimated to be a loss of $5.4 billion from 
     cities, counties and special districts.
       In addition, cities and counties are faced with a shortfall 
     of Vehicle License Fee revenues in the current fiscal year 
     due to the ``deferral'' of payment of $825 million in 
     backfill owed until 2006. This will have a critical impact on 
     the ability to provide local services during the current 
     fiscal year. The utility users tax represents one of the few 
     local discretionary revenue sources with rates, exemptions 
     and terms determined at the local level to conform to 
     community interests and needs.
       Although the City of San Bernardino fully supports and 
     recognizes the importance of fostering the development of the 
     Internet and other new technologies, Congress must also 
     recognize as it considers this legislation that cities in 
     California face serious fiscal constraints at both the state 
     and local level already.
       We need your help to ensure that this legislation is 
     amended to remove this detrimental expansion of the 
     definition of ``Internet access.'' We look forward to working 
     closely with you on this urgent matter.
           Sincerely,
                                                    Judith Valles,
     Mayor.
                                  ____

                                          City of San Luis Obispo,


                                   Office of the City Council,

                            San Luis Obispo, CA, October 10, 2003.
     Re: S. 150 Internet Tax Non-Discrimination Act Notice of 
         Opposition

     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: The City of San Luis Obispo seeks 
     your assistance in opposing language added to the Internet 
     Tax Non-Discrimination Act (S. 150) that would expand the 
     coverage of the moratorium by adding ``telecommunications 
     services'' to the definition of Internet access. It would 
     prohibit a local tax on any ``telecommunication service'' 
     that is used for Internet access. Nearly all telephone 
     services, including local dial up, wireless, satellite, and 
     broadband (DSL and cable modem), provide Internet access.
       This language would have a major adverse impact on our City 
     in funding essential services such as police, fire, streets 
     and parks. In our city, utility user taxes (UUT) are one of 
     our ``Top Five'' General Fund revenues, representing 12% of 
     general-purpose revenues. ``Telecommunication services'' 
     account for a significant portion of UUT revenues, bringing 
     in $1.3 million in 2002-03. This is the equivalent of 15 
     police officers. In these fiscally tough times, where we have 
     already made significant reductions in day-to-day public 
     safety services to balance the budget, any further revenue 
     cuts will result in crippling service reduction in our 
     community.
       And the impact will only get worse in the future. Soon, 
     major telephone and Internet service providers will offer 
     ``packages'' that bundle together Internet access and 
     unlimited telephone services. Unfortunately, under the 
     proposed language, such bundled services will likely be 
     considered ``tax-free,'' which we find regressive and unfair. 
     Even if the average consumer would continue to be subject to 
     the local tax (UUT) on traditional telecommunication 
     services, those persons who could afford computers and high-
     speed Internet access (such as DSL and cable modem) would 
     slip through this loophole and permanently escape taxation on 
     similar services. No matter how much we wish to support the 
     continued growth of the Internet, discriminatory taxation is 
     not the answer.
       Finally, we want to assure you that we are not asking for 
     your opposition to this language as a way of helping us 
     achieve new tax revenues: we are only asking for help in 
     protecting our City's badly needed existing tax revenues.
           Sincerely,
                                                  David F. Romero,
                                                            Mayor.

  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, this is a very important issue we have 
in front of us. I wish to pause for a moment and address an issue I saw 
in the Washington Post this morning that affects what we are doing here 
this morning and what we do every single day; that is, our ability to 
work together to ask questions on behalf of American taxpayers, on 
behalf of all of the people we represent, to be able to get answers 
from each other and from the administration, and to have the best 
information we can so we can make the right decisions.
  I was quite shocked this morning to see in the Washington Post a 
headline that says: ``White House Puts Limits On Queries from 
Democrats.'' Reading this more closely, it says:

       The Bush White House, irritated by pesky questions from 
     congressional Democrats about how the administration is using 
     taxpayers' money, has developed an efficient solution.

  It will not entertain any more questions from opposition lawmakers.

  I thought for sure I was not awake. So I rubbed my eyes again and 
looked at it again and read the same thing. It went on to say:

       The decision, one that Democrats and scholars say is highly 
     unusual, was announced in an e-mail on Wednesday to House and 
     Senate appropriations committees.

  Further down there is a comment from Norm Ornstein, a congressional 
specialist at the American Enterprise Institute. He said:

       I've not heard of anything like this happening before. This 
     is obviously an excuse to avoid providing information about 
     some of the things the Democrats are asking for.

  I appreciate that in these days of debate and the important issues we 
have in front of us, we have been asking some pesky questions of this 
administration. Pesky questions such as: How specifically will we spend 
$87 billion going to Iraq, and what specifically will be done to 
rebuild? What is the plan for our soldiers? What is the plan in terms 
of making sure we complete the mission and bring them home safely?
  We have asked pesky questions such as: Why is it that subsidiaries of 
Halliburton get billions of dollars in no-bid contracts when our own 
businesses and our own States are unable to find out about bidding 
processes and unable to participate in what should be an open, 
transparent process, given the fact these are American tax dollars, 
public tax dollars? And we have asked pesky questions about Bechtel.
  Mr. REID. Will the Senator yield for a question?
  Ms. STABENOW. I am honored to yield to my friend and leader from 
Nevada.
  Mr. REID. Is it true that you served in the House of Representatives 
before serving in the Senate?
  Ms. STABENOW. Yes.
  Mr. REID. During your tenure there, I am sure you had many occasions 
to send inquiries to the administration. Whether it was Veterans 
Affairs, the Social Security Administration, White House council, you 
have done that over the years; is that not true?
  Ms. STABENOW. Absolutely.
  Mr. REID. Over the years, it is true that you have received 
responses?
  Ms. STABENOW. Yes.

[[Page 28114]]


  Mr. REID. And there was never a question raised as to whether it was 
a Democratic Congressman or Senator or Republican House Member or 
Senator asking the question; isn't that right?
  Ms. STABENOW. Absolutely.
  Mr. REID. Didn't you always feel that no matter what political party 
the Member of Congress was who asked the question, it had no bearing on 
the answer? Isn't that true?
  Ms. STABENOW. Yes.
  Mr. REID. I read that article to which you refer. It seems there is 
now new criteria established at the White House, that only if you are a 
Republican will they answer questions of a Member of Congress. Is that 
what that article said?
  Ms. STABENOW. That is exactly what it says.
  Mr. REID. How many people live in the State of Michigan?
  Ms. STABENOW. We have over 9 million people in the State of Michigan.
  Mr. REID. And Michigan is represented by two Democratic Senators.
  Ms. STABENOW. That is correct.
  Mr. REID. The distinguished senior Senator, Carl Levin, who everyone 
acknowledges is one of the finest Senators ever to serve in this body.
  Ms. STABENOW. Absolutely.
  Mr. REID. He is an expert on issues relating to defense. I am sure on 
a weekly basis, if not more often, he makes inquiries at the Pentagon 
and other offices of the executive branch of Government as to questions 
he has in his role as the lead Democrat on the defense committee; is 
that right?
  Ms. STABENOW. In fact, I add that over the years, under Democratic 
and Republican Presidents, the senior Senator from Michigan asked very 
important questions about contracting. He was the first, I believe, to 
come forward with the acknowledgement and questions about the $600 
wrenches and other questions of excesses at the time in the past from 
the Pentagon. To Democratic or Republican Presidents, he has asked some 
pretty ``pesky'' questions.
  Mr. REID. What that article says is a State of 9 million people, 
which has democratically elected Democratic Senators, these two 
Senators would not be able to ask questions of that administration; is 
that what it does?
  Ms. STABENOW. That is how it appears. We have a lot of very serious 
questions our constituents want us to ask of the administration.
  Mr. REID. I direct this to the Senator in a way that I can only say 
is as sincere as I can be. I very much appreciate the Senator bringing 
this to the attention of the American people through the Senate. It is 
our ability to bring matters to the floor that make this country 
better--there are other ways of showing how great this country is, but 
certainly one is being able to bring matters to the Senate floor 
without getting permission of the administration.
  I applaud the Senator from Michigan for jumping on this issue very 
quickly, as the Senator has done on many other issues.
  Ms. STABENOW. In the State of Michigan, we have many questions being 
asked--a lot that we asked of the administration on homeland security, 
how we are funding our borders and keeping them secure. Why is it we 
are not providing more for our first responders? We have given some 
dollars but certainly a very small amount of what they need. Why are we 
not funding more for communications equipment that allows one city's 
police department to talk to another city's police department, or the 
police department to talk to the fire department, or the EMS workers to 
be able to do their job in a community? Why is it we are not providing 
more dollars directly for those kinds of responsibilities? They are 
right on the front lines. When you have a problem, when there is a 
serious crisis, whether it is homeland security or some other crisis in 
the community, you pick up and call 911, and we want to know people are 
prepared.
  Those are questions about appropriations. Those are questions we 
asked of the administration. How are you moving forward and designing 
and implementing a Department of Homeland Security? What are we doing 
at the borders?
  In my State, we have other questions we are asking that we are 
assuming the administration will endeavor to answer. It relates to the 
issues of Canadian trash trucks now coming across our borders into 
Michigan--about 200 a day--that are not being thoroughly inspected at 
the border because there is not a way to do it without putting an 
inspector in the back of every truck.
  We have serious concerns about what is happening in terms of homeland 
security. Those are questions. How can we work together? How can we 
make sure we are addressing those issues that will allow our citizens 
to be safe, as it relates to these trash trucks coming across the 
border. They need to be stopped.
  Over 165,000 people in my State signed an online petition to support 
my request to the EPA that they get involved in stopping these trucks 
and using the authority they have. Now, we go through the 
appropriations process on this matter. I have been very appreciative of 
the fact that we have worked together on a bipartisan basis in the 
Senate to address these issues and put more equipment at the border. I 
have been pleased to have the support of leaders on the other side of 
the aisle to support efforts to do that, to work together on behalf of 
the people we represent and make sure they are safe.
  But when I see things such as this kind of a story, that e-mails are 
going out saying the White House doesn't like our ``pesky'' questions 
about how dollars are spent and suggestions that maybe they could be 
spent differently and better and more wisely in our States--they don't 
like those questions, so they sent out an e-mail saying they are not 
going to answer them anymore. They are only going to answer the 
questions coming from the Republican committee chairs. They are not 
going to answer questions coming from us. This is deeply disturbing and 
it should be disturbing to every single one of the people we represent. 
It should be, frankly, disturbing to people on both sides of the aisle.
  I was in the House of Representatives for 4 years under a different 
administration. I asked a lot of tough questions of a lot of 
Departments and I expected answers. I expected that when my Republican 
colleagues asked questions of that Democratic administration, they 
would be given answers as well.
  We are a separate branch of Government. We are the appropriators, all 
of us. The Constitution didn't say, by the way, only the majority party 
can have access to information and only the majority party is 
responsible for appropriations and guaranteeing the wise use of 
American tax dollars. They said the Congress of the United States is 
responsible, and that is all of us.
  I think it is very important that we send a message very quickly from 
the Senate that we object to this, object to it together. We work hard 
on appropriations. We ask a lot of questions. We have a lot of give and 
take. Amendments are proposed; they rise, they fall. That is the 
process. We all respect each other and we all respect that process. At 
the end of the day, we assume that if we are asking, as they say, 
``pesky'' questions, we will get answers regardless of who we are. We 
may not agree with the answers.
  That is why we live in a democracy. That is the democratic process. 
We respect the fact there are differences in views, priorities, and 
values, but we do not accept--I do not accept--that we will be blocked 
from receiving information. It would be astounding if every time, as a 
Member of this body, I had to ask for a freedom of information request 
from the administration in order to get questions answered on items of 
importance to the people I represent--whether it be agriculture, 
manufacturing, homeland security, health care, education, the 
environment, or transportation. I could go on and on. We have critical 
issues we are responsible for addressing and responsible for doing it 
in the most efficient and effective way we can.
  There is only a limited amount of resources and we have to make sure 
we make wise decisions with those resources. That is our job.

[[Page 28115]]




                Amendment No. 2141 to Amendment No. 2136

  Ms. STABENOW. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Ms. Stabenow] proposes an 
     amendment numbered 2141.

  Ms. STABENOW. I ask unanimous consent that further reading of the 
amendment be dispensed with.
  The amendment is as follows:

       At the appropriate place insert the following:
       Since, Article I of the U.S. Constitution grants Congress 
     the power of the purse; and
       Since, Congressional oversight of Executive Branch 
     expenditures of public funds is essential in order to prevent 
     waste, fraud, and abuse of taxpayers dollars; and
       Since, Congress can only exercise its oversight 
     responsibilities if the White House and Executive Branch 
     agencies are responsive to requests for information about 
     public expenditures;
       Therefore it is the Sense of the Senate that,
       The White House and all Executive Branch agencies should 
     respond promptly and completely to all requests by Members of 
     Congress of both parties for information about public 
     expenditures.

  Ms. STABENOW. Mr. President, I simply say this is a very short 
amendment. In part, it indicates:

       Since, Congressional oversight of the Executive Branch 
     expenditures of public funds is essential in order to prevent 
     waste, fraud, and abuse of taxpayer dollars; and
       Since, Congress can only exercise its oversight 
     responsibilities if the White House and Executive Branch 
     agencies are responsive to requests for information about 
     public expenditures;
       Therefore, it is the Sense of the Senate that,
       The White House and all Executive Branch agencies should 
     respond promptly and completely to all requests by Members of 
     Congress of both parties for information about public 
     expenditures.

  I hope we will have unanimous support for this amendment and that we 
can quickly send a message to the White House and ask that they reverse 
the policy laid out this morning in this article.
  Mr. DURBIN. Mr. President, I wish to join the comments of the Senator 
from Michigan. It is, I am sure, painful and distracting for the 
administration to receive inquiries from Congress. It sure would be a 
lot easier if Congress wasn't around to mess up their work. I mean, we 
ask all these hard questions about what they are doing with the 
taxpayers' dollars. What are you doing to make America a safer place? I 
am sure if they did not have to answer those questions and be held 
accountable, they would have a lot more time to do other things.
  I think the reason for the questions gets down to a basic document 
called the Constitution. If I remember correctly from early lessons, we 
do have three coequal branches of Government and a system of checks and 
balances. This administration has decided that particular part of the 
Constitution is going to be ignored.
  Frankly, I don't think that serves our Nation very well. Whether it 
is a Democratic administration or a Republican administration, the fact 
is they have to be held accountable. The way they are held accountable 
is not only through an election, but through the operations of Congress 
which appropriates moneys, passes laws, and asks hard questions.
  Now we see the official policy of this administration is to say we 
are only going to answer Republican-approved questions. That, to me, is 
a sad commentary on this administration which has, frankly, written a 
record of concealment in the years they have been here.
  You recall the lawsuit that was involved when we drew up the Energy 
bill. We asked the Vice President of the United States, who was one of 
the designers of the administration's Energy bill, which special 
interest groups were sitting in the room when they wrote the bill. He 
said to Congress: It is none of your business. We don't have to tell 
you. We brought a suit against the administration asking for that 
information and we were unsuccessful.
  Today we know there were special interest groups present. We just 
don't know who they were. If you look at the bill, you can see who they 
likely were. They are the ones that were rewarded--oil companies and 
major energy companies. They are the ones who did very well with this 
Energy bill.
  When the Senator from Michigan raises this question as to what this 
new administration policy means, I think she really hits the nail on 
the head. Congress has an important constitutional role of oversight on 
this administration and any administration, and for this administration 
to decide that certain Senators and Congressmen cannot ask questions 
that will be answered, I think is going to set us back.
  I had the same experience with the Department of Justice. Attorney 
General John Ashcroft, who served in this Senate for years and asked 
many questions of previous administrations, really loathes to answer 
any questions that come particularly from Democratic Senators. That has 
caused a lot of, I guess, concern because some of us believe there are 
important questions that need to be asked and answered.
  The PATRIOT Act, for example, was a new delegation of authority 2 
years ago to the Government. It gave the Government more power than 
they had before, power that comes close to, if it doesn't, infringing 
on our rights and liberties. We asked some questions: How is this 
Department of Justice using the PATRIOT Act? Unfortunately, the 
Attorney General has not been responsive. One might say: Well, he comes 
to Congress, doesn't he? He submits himself to questions? If we look at 
the record, we will see this Attorney General's record of coming to 
Congress and being held accountable is a record that shows he doesn't 
care to do that either.
  They don't answer written inquiries, and the Attorney General does 
not appear personally. Frankly, that leads to mistrust, and it doesn't 
speak well of a democracy where that is the hallmark of their policy.
  It strikes me Congress has some important responsibilities here, and 
one of them is reflected in the issue raised by the Senator from 
Michigan. Another one is reflected in this so-called 30-hour debate, 
this one-sided debate which is to take place next week. It appears the 
Republican majority in the Senate, 51, believe they have been treated 
unfairly because the President has only had 168 of his judicial 
nominees approved while 4 have been held up. That is right, the score 
is 168 to 4, and they are arguing that is unfair, so unfair we need to 
tie up the Senate, we need to stop consideration of appropriations 
bills, we need to stop any consideration of bills that might help the 
men and women in uniform who are fighting for us in Iraq and 
Afghanistan. We don't have time for that, but we have to spend 30 
straight hours in a one-sided debate on the Republican side arguing 
that holding up 4 judges out of 172--4 out of 172--is somehow 
unconstitutional or unfair or unjust.
  It goes to the heart of this same document, our Constitution, which 
says the Senate is not a rubberstamp. The Senate has the power to not 
just consent to judges, but to advise and consent, and that advise-and-
consent role includes asking hard questions of judicial nominees.
  The four who have been held up so far from the Bush White House, I 
think, represent the most extreme of his nominees. But there are many 
others who have been approved who have philosophies entirely consistent 
with the President and his administration.
  Make no mistake, out of the 168 nominees who have gone through this 
Senate, a record number for any President, 168 have been approved. Of 
those, we will find many conservative Republicans with views much 
different than my own. We accept that. But for these 4, we think they 
have crossed a line, a line which really calls on us in our capacity as 
Senators with responsibility of the advise-and-consent clause to say at 
some point we have to say no for 4 judges out of 172.
  I might add on this bill that is before us, at a later moment I will 
be offering an amendment. It is an amendment which really doesn't 
appear to have much to do with the Internet tax question, but it is an 
amendment I am going to continue to offer on every

[[Page 28116]]

available bill until the Senate goes on record and passes it again and 
enacts it into law. It is an amendment which passed this Senate about 2 
weeks ago by a vote of 96 to 3. It is an amendment which says Federal 
employees who are members of our National Guard and Reserve units who 
are activated will have their Federal salaries protected while they are 
serving our country.
  This is exactly what happens to State employees in dozens of States 
and city and county employees across America where their units of 
government have said: If you go off to serve our Nation in the Guard 
and Reserve, we will stand behind you. We will make up the difference 
in your salary. We will protect your families' income while you are 
serving our Nation and risking your lives.
  Sadly, the same standard is not applied to Federal employees. Here we 
are with 10 percent of the Guard and Reserve in Federal employment--
120,000 of those who are in the Guard and Reserve are in Federal 
employment; 23,000 have been activated, and we do not make up the 
difference in their salaries while overseas.
  For some, there is no difference, but for some there is a big 
disparity. I offered this amendment on the floor, and it was adopted 96 
to 3.
  Mr. McCAIN. Will the Senator yield so I can make an announcement?
  Mr. DURBIN. Yes, without losing my right to the floor.
  The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so 
ordered.
  Mr. McCAIN. Madam President, for the benefit of my colleagues, we 
have been in some intense negotiations on the Internet tax issue. We 
have made significant progress. We still have one significant hurdle 
remaining where we can perhaps get all sides together. There is about a 
50-50 chance. But we should know in about 20 minutes as to whether we 
will reach this very important agreement which would basically 
eliminate any major issues associated with the Internet tax issue.
  I thank my colleague from Illinois for yielding. I yield the floor.
  Mr. WYDEN. Will the Senator yield?
  Mr. DURBIN. I will be happy to yield.
  Mr. WYDEN. Madam President, with the chairman of the Commerce 
Committee, and my friend from North Dakota, Senator Dorgan, who has 
worked with me on this now for 7 years, we have made some significant 
headway in the last half hour, 45 minutes. To get this done, there are 
some difficult choices that have to be made. One that would be very 
painful for me, given my involvement in the original law, would be to 
accept some sort of time limit rather than make it permanent.
  I say to the Senate, I am willing to look at that in the name of 
trying to find common ground. What we can't have as we go through this 
is to have DSLs, this tremendously exciting service which in so many 
instances is going to be the key for folks getting Internet access in a 
wireless fashion, hammered again and again in the future. We are going 
to see if we can find common ground.
  The point of this law more than 5 years ago was to ensure 
technological neutrality so the Internet and the various ways it is 
delivered would not, in some way, advance some at the expense of 
others. We still have to find a way for that technological neutrality.
  We may be able, given the fact that the staffs are working now to 
have a breakthrough on this in the next half an hour, but as the author 
of the original law in the Senate, I want to make it clear that I am 
open to trying to find some common ground and make some significant 
concessions to do it. That is what we are considering now.
  I thank the Senator from Illinois for yielding.
  Mr. DURBIN. I, of course, thank the Senator from Oregon. I appreciate 
the hard work of the Senator from North Dakota, the Senator from 
Arizona, and the Senator from Oregon on this important legislation.
  I mentioned earlier the reservist pay amendment which I will be 
offering at some point on this legislation, but there is another 
amendment which I will be offering which I would like to alert the 
sponsors of so it comes as no surprise. It is our understanding that if 
there is a tax moratorium on Internet operations, which I would support 
with carefully defined circumstances, it will result in a substantial 
savings to telecommunications companies across the United States. I am 
going to be offering an amendment during the course of consideration of 
this bill which says that the savings to these companies shall be 
passed on to the consumers in America.
  It strikes me that at a point in time when we are in a recession, 
when families are struggling, some facing unemployment, others trying 
to make ends meet, that if we are going to relieve this industry of 
substantial taxation, millions if not billions of dollars over time, 
the savings ought to go to families, the customers. I think that would 
be a good move on our part.
  So if we want to talk about invigorating the economy, then why not 
reduce the telephone bill or the tax bill that a family faces on a 
monthly basis?
  Mr. REID. Madam President, will the Senator yield for a question?
  Mr. DURBIN. I yield to the Senator for Nevada, without yielding the 
floor.
  Mr. REID. Madam President, I say to my friend from Illinois, in 
relation to the amendment that is pending, I asked the White House by 
letter to give me the breakdown of the cost of all of these trips they 
take around the country campaigning for people. Who pays for that? Is 
it paid for by the taxpayers of this country? Is it paid for by the 
Republican National Committee? The President is a rich man. Does he pay 
for it personally?
  It has been months and I have had no response. I think I am entitled 
to an answer to that most important question. People are concerned 
about that. The President goes to his ranch, he goes off on day trips 
campaigning only.
  Would the Senator agree with me that that is the direction of this 
amendment, and that I am entitled, as a Member of the Senate, to an 
answer to the question as to who is paying for these junkets around the 
country?
  Mr. DURBIN. Reclaiming my time, I say to the Senator from Nevada that 
is a perfect illustration as to why the Stabenow amendment should be 
enacted, because what Senator Stabenow is trying to achieve is the 
right of the Senator from Nevada and any Senator, Democrat or 
Republican, to ask legitimate questions about the expenditure of public 
funds. If we decide that is going too far and perhaps inconveniencing 
the administration by forcing them to be held accountable, then we 
might as well pack up and go home.
  As they say, if we are here in order to total up years for 
retirement, it is a pretty easy job; but if we want to come here and go 
to work to try to achieve good for this country and make certain that 
people who are misusing public resources are, in fact, held accountable 
for it, then it is hard work.
  Mr. REID. Will the Senator yield for another question?
  Mr. DURBIN. I would be happy to yield to the Senator from Nevada.
  Mr. REID. How many people live in the State of Illinois?
  Mr. DURBIN. About 12\1/2\ million.
  Mr. REID. I say to the Senator from Illinois, I spoke through the 
Chair to the distinguished junior Senator from Michigan about the State 
of Michigan. There are 9 million people in Michigan, two Democratic 
Senators. Under the rule that we have just learned about that the White 
House is not going to answer questions of Democrats, 9 million people 
who live in the State of Michigan in effect cannot have their Senators 
asking questions of the White House.
  The Senator from Illinois, who represents 12\1/2\ million people, 
there is a Democratic Senator and a Republican Senator who has 
announced his retirement, who is not going to run for reelection--the 
Senator who has announced his retirement and in effect is a lame duck, 
fine man that he is, can have his questions answered, but the Senator 
who was just reelected representing 12\1/2\ million people cannot have 
his questions answered. Does that seem fair?
  Mr. DURBIN. I say to the Senator from Nevada, it not only does not 
seem fair, it raises another question in my mind. Why would we on the 
Democratic side of the aisle approve any executive appointment of 
someone who is

[[Page 28117]]

going in the executive branch and from that point forward will never 
speak to us again? Now, if we are being asked by this administration to 
approve people to hold offices within this administration who have not 
answered all the questions in committee and having been approved on the 
Senate floor will from that point forward never communicate with us 
again, then, frankly, I think we are derelict in our responsibility.
  So I say to the administration, think this through. If they are 
saying that the people we appoint in the Senate are not going to answer 
the questions propounded by Democratic Senators, then, frankly, I think 
it is untoward of them to suggest that we should just approve all of 
these appointments.
  I think it is fair game for the President to fill vacancies, and I 
have supported the overwhelming majority of the President's requests. 
But if the policy is once approved by the Senate, these executive 
appointments, these people working in these agencies, will refuse to 
take telephone calls or answer letters of inquiry from Members of the 
Senate, refuse to be held accountable for their actions as public 
officials, then I think we are derelict in our responsibility to the 
people we represent.
  Mr. LEAHY. Will the Senator from Illinois yield for a question 
without losing his right to the floor?
  Mr. DURBIN. I would be happy to yield to the Senator from Vermont.
  Mr. LEAHY. Madam President, I ask my friend from Illinois, who serves 
with me on the Appropriations Committee--who served on a number of 
committees in the other body before he was in the Senate--who has as 
much knowledge of procedure as anyone having served in the other body 
and served in this body, it has been my experience in over a quarter of 
a century on 
the Appropriations Committee, through six administrations--President 
Ford, President Carter, President Reagan, former President Bush, 
President Clinton--that both Republicans and Democrats were able to ask 
questions and expect answers from the executive branch.
  Further, it was my experience that throughout all of these 
administrations, Republican and Democratic alike, there was not a 
restriction made because we were required to ask these questions. Is 
that the experience of the distinguished Senator from Illinois? Has the 
Senator had the same experience in both bodies--I am speaking now of 
appropriations but, of course, a lot of other committees are involved--
if we asked questions about where the money went, we received the 
answers irrespective of whether one was a Republican or Democratic?
  Mr. DURBIN. In reply, I say the Senator from Vermont is absolutely 
correct. Allow me to use another illustration. Just last weekend, there 
was the downing of the Chinook helicopter in Iraq with 15 of our 
soldiers killed initially and another soldier who has died just last 
night, I understand, so 16 soldiers died and 20 more were seriously 
injured. The pilot of that helicopter was from my home State. It was a 
National Guard helicopter.
  After that occurred, unsolicited I received communications from 
reliable military sources that suggested that the Guard helicopters in 
activated units were not adequately equipped and prepared to deal with 
shoulder-fired missiles. This is as serious a question as can be given 
to any Member of the Senate. Naturally, the families--the servicemen 
first and their families--wanted to know the answer. So what I did was 
to write a letter directly to the Secretary of Defense, Donald 
Rumsfeld, saying please look into this immediately; see if the National 
Guard units that have been activated are sufficiently protected with 
equipment.
  During the course of asking this question, more communications came 
my way. Now we have received a lot of communications suggesting that 
families all around Illinois, and even around the country, are telling 
us about deficiencies in the equipment available to our servicemen in 
Iraq and Afghanistan, and particularly to activated guardsmen and 
reserves.
  Consider that just yesterday, the President signed an $87 billion 
appropriation for the effort in Iraq and Afghanistan which, as I 
understand it, about $67 billion was for our men and women in uniform, 
which I supported. As much as I disagree with the President's foreign 
policy, I am not going to shortchange our men and women in uniform for 
the resources they need to be successful in their mission and come home 
safely.
  Having done that, having given the appropriation to the 
administration, now we have families and servicemen coming to me, as 
the Senator from Illinois, saying they do not think the money is being 
spent properly. I have a responsibility to their families and to my 
State to ask the hard questions of the administration. Are you doing 
all that you can to protect our servicemen? Frankly, I think that is 
why I was elected. If I am not given a chance to even ask that question 
or to have my inquiry answered, what, then, can I say to these families 
or to these servicemen who believe that I am their elected 
representative and have that responsibility?
  Senator Stabenow, in her amendment, says this new policy of the 
administration, of refusing to answer letters from Democratic Senators 
and Democratic Congressmen, takes away from the voice of those families 
and those servicemen and people across the United States who rely on us 
to stand up and hold any administration accountable, whether it is 
Democratic or Republican.
  I think, honestly, her amendment goes to the heart of why we are here 
doing business in the Chamber of the Senate. I support her very 
strongly. I urge my Republican colleagues who have been very loyal to 
their President, and that is understandable and admirable, to think 
long and hard about this policy. Things change in this town. The tide 
of politics can hit the shore and go back out to sea and come back 
again. You never know, a year, 2 years, 3 years from now, whether or 
not policies taken by this administration establish a precedent which 
is not healthy for our constitutional democracy. Certainly this 
decision by the administration to turn down inquiries and letters of 
request on matters as basic as the protection of our men and women in 
uniform and whether or not our helicopters are adequately protected--
their decision as a policy basis, which I understand has been included 
in an e-mail and sent across the administration--raises some important 
questions.
  I see the ranking member of the Senate Budget Committee, Senator 
Conrad, has taken the floor. Again, he is a perfect illustration of why 
this new policy of the administration, refusing to answer inquiries 
from Democratic Senators about their spending policies and taxing 
policies, make it impossible for him to do his job on the Budget 
Committee to make certain that every administration is held 
accountable.
  I am going to yield the floor and say to my friend and colleague from 
Michigan, thank you for bringing this issue up. This is not just a 
morning newspaper article. This is a serious constitutional question. I 
hope some of my colleagues on the Republican side of the aisle, after 
first reacting they want to stand by their administration, will think 
long and hard if this is a policy we in America should be asked to live 
with, when future Congresses and future Presidents are elected and we 
are all told we are trying to share a responsibility of accountability 
across our Government.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Madam President, I ask to speak as if in morning 
business for no longer than 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Lautenberg are printed in today's Record under 
``Morning Business.'')
  Mr. LAUTENBERG. 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. CONRAD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page 28118]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CONRAD. Mr. President, less than 6 months ago, we enacted the 
Jobs and Growth Tax Relief Reconciliation Act which contained $20 
billion in temporary State fiscal relief. Yet before us is legislation 
that may effectively take back a significant portion of that much-
needed relief for States. In my earlier career, I was tax commissioner 
in the State of North Dakota. My successor, a Republican, a man who 
currently holds the office, was in my office just a couple of weeks ago 
explaining the impact of the committee bill on our State. He estimated 
this bill would cost our State $20 million. That may not be a lot of 
money in Washington. I can tell you that is a lot of money in North 
Dakota. That is $20 million we would be taking away from the State of 
North Dakota they have every right to collect.
  Let me make absolutely clear that I am not for taxing access to the 
Internet. I am not for that. I have supported the moratorium. I will 
continue to support the moratorium. But as Senator Dorgan made clear on 
the floor this morning, definitions do matter. Unfortunately, the bill 
out of the committee has left a lot of open questions. Lawyers looking 
at it are telling us it would restrict the States far beyond a simple 
extension of the moratorium. I do not believe that is the intention of 
the Congress. I certainly hope it is not the intention of the committee 
to go beyond the definition of access we agreed to in 1998 and 
reaffirmed in 2001 in a way that would preempt States' abilities to 
levy taxes as its elected representatives see fit.
  On the floor of the Senate, we have seen a bipartisan effort to make 
certain what we do here is what we really mean. I have been very 
interested to see four distinguished former Governors--Senator 
Alexander, Senator Voinovich, Senator Carper, and Senator Graham, who 
are among our most respected colleagues on issues such as these, and 
all of them served successfully as Governors--warning Members of 
Congress the legislation before us has unintended consequences. I hope 
we listen carefully to our colleagues, Senator Alexander, Senator 
Voinovich, Senator Carper, and Senator Graham, and that we pause and 
get this right.
  We should not tax access to the Internet. That would inhibit its 
economic potential. It would reduce opportunity in our society. But at 
the same time we shouldn't be going beyond that principle and that 
concept in restricting the States' rights to levy taxes that are 
reasonable and appropriate. That is not the appropriate role of the 
Federal Government.
  I hope very much we will take a few moments and get this right so 
that this is not a rush to judgment and we not impose on hard-pressed 
States. We already know there is some $90 billion of shortfall by the 
States all across the country. The last thing they need is the Federal 
Government to come in here and take away legitimate sources of revenue 
from them. That makes no sense.
  I hope my colleagues are going to be sufficiently patient and that we 
get this right. As Senator Dorgan said--again, I want to emphasize--
earlier on the floor, definitions matter. I heard Senator McCain say 
the same thing last night; that it is important to get these concepts 
right, to get them carefully defined so we are not doing something 
other than what we really intend to do, which is to provide a 
continuing moratorium on the taxation for Internet access.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Madam President, I ask unanimous consent to speak in 
morning business for 10 minutes. I understand we have a lull on the 
Internet tax bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Allard are printed in today's Record under 
``Morning Business.'')
  Mr. ALLARD. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, I ask my friend from North Dakota--this 
is on the Stabenow amendment--we would like to have a couple-word 
change. If he would look at the amendment where it says, in the last 
paragraph, ``The White House and all Executive Branch agencies should 
respond promptly and completely to all requests by Members of 
Congress,'' that between ``all'' and ``requests,'' if we could add the 
two words ``constitutionally appropriate.'' Would that be agreeable to 
him, so it would read: ``completely to all constitutionally appropriate 
requests by Members of Congress''?
  I assume that most Members of Congress would not make 
unconstitutionally appropriate requests, but that seems to be 
perfecting language that some of my friends would like to have added.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I say to the Senator from Arizona, this is 
not my amendment, so I would have to consult with the author of the 
amendment.
  As you know, the amendment is prompted by a news story today from the 
White House suggesting they will not be answering inquiries except by 
certain Members of Congress. So that prompted her to offer this 
amendment.
  I will certainly consult with--she is on the Senate floor, so perhaps 
we can ask her directly.
  Mr. McCAIN. Madam President, do I still have the floor?
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I ask unanimous consent to ask a 
question of the Senator from Michigan.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, I ask the Senator from Michigan if she 
would be agreeable to a two-word addition in the last paragraph, that 
between the words ``all'' and ``requests'' the words ``constitutionally 
appropriate'' be added. I wonder if that would be agreeable to her. If 
it is not agreeable to her, I will not propose the amendment.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Madam President, the only question I have is the word 
``appropriate.'' We certainly want this to be within constitutional 
parameters. I would say, at this point, the question I would have would 
be about ``appropriate.'' Who decides what is ``appropriate,'' given 
the judgments the administration is making? Possibly we can work 
together to find something else other than that word. But at this point 
that would be my concern.
  Mr. McCAIN. I thank the Senator and yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, will the Senator from Michigan allow me to 
ask a question?
  Ms. STABENOW. Certainly.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. This amendment is offered by the Senator from Michigan, and 
it never took into consideration doing anything that was 
unconstitutional?
  Ms. STABENOW. That is correct.
  Mr. REID. Everything the Senator does is within the framework of the 
Constitution. So I would hope that the matter could be disposed of as 
written because it goes without saying that we want this to be 
constitutional. We would never try to do anything that would be outside 
the parameters of the Constitution.
  So I hope this amendment could be accepted. It appears to me it 
should be done by voice. If that is not the case, I know that a number 
of other people have more to talk about on this amendment. So I would 
hope the majority would make a decision quite soon as to what is to be 
done with this amendment.
  Several Senators addressed the Chair.

[[Page 28119]]

  The PRESIDING OFFICER. The Senator from Nevada has the floor.
  Mr. REID. I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Madam President, I mentioned that the event that has 
prompted this amendment, I understand, was in the newspaper this 
morning. It was apparently a report that the White House would limit 
their responses to questions from Members of Congress.
  I, at one point, chaired the appropriations subcommittee here in the 
Senate that actually funds the operations of the White House. We always 
work very closely with the White House. When they request the necessary 
funding, we provide it. We never have any difficulty. The same is true 
with respect to the agencies. We fund all of the agencies of the 
executive branch. We spend a great deal of money in doing that. We work 
together to find the appropriate number and the appropriate amount of 
resources that are needed.
  The White House is a little different. When they make the request, we 
fund the request. That is the way we deal with the White House.
  But with the executive agencies, of course, we have disagreements and 
differences from time to time, but we end up sending billions and 
billions--hundreds of billions--of dollars for expenditures through 
these agencies. If ever--if ever--the Members of the Congress are 
prevented from asking questions about how the money is used, how the 
money is spent, then there is something fundamentally broken.
  So I was as surprised as my colleague from Michigan to read the story 
in the newspaper this morning. I know it is nettlesome, I know it is a 
pain, it is a bur under the saddle to get questions from Members of 
Congress if you are a member of the executive branch.
  At one point, I was a member of the executive branch in State 
government, and all the State legislators were always peppering us with 
questions. Sure, that is a nuisance. Nobody likes that. But the fact 
is, the congressional actions here determine how much money is made 
available. The same is true in the State legislatures. They have every 
right--in fact, they have a responsibility--to the taxpayer to try to 
determine how that money is spent. If they have questions about it, 
they ask those questions. If they ask those questions, they darn well 
expect an answer, even if it is considered a nuisance by those who are 
receiving the questions.
  So my hope is they will just accept this amendment at some point 
today. I understand what has prompted the amendment.
  Let me just, for a moment, talk about the underlying proposition 
before the Senate; that is, the bill that is brought to the floor 
today, the moratorium on Internet taxation. I want to see us pass a 
piece of legislation. I do not think it is satisfactory to have the 
moratorium expire on November 1, and then to just let that be the word. 
That is not where I would like to see this end up.
  So we have a bill on the floor that came from the Commerce Committee. 
That legislation passed the Commerce Committee unanimously, but it was 
not quite the way it seemed when you take a look at that vote because 
we also agreed that the definition of that Internet tax moratorium was 
faulty or at least not agreed to, and we would work on it coming to the 
floor of the Senate.
  We have not yet reached a compromise. That definition is the key. It 
is the linchpin to this legislation. So we have to find a way to 
resolve that. We thought this morning perhaps there was a way to do 
that. That appears not to be the case. I think we still have some 
distance between the various thoughts about how one would craft this in 
a way that is helpful to not retard and not injure the buildout of the 
infrastructure for the Internet and, at the same time, be fair to State 
and local governments with respect to their revenue base and not be 
preempting the opportunity they need and they would have, as they have 
always had, to tax certain services. So we continue to try to talk and 
see if we can find a way to reach some kind of agreement on this 
definition.
  Now, I want to make an additional point because I think it is 
important to continue to make this point even as we work on these 
issues. We have this issue on the Senate floor today. I understand why 
that is the case, because this issue had a November 1 deadline by which 
the moratorium on Internet taxation expired.
  We have a responsibility to try to see if we can pass this 
legislation. So there was a deadline with respect to this legislation.
  But there was a deadline on appropriations bills as well. That 
deadline was October 1. It is now November. We still have 
appropriations bills that have not been considered in the Senate. 
Yesterday there was great urgency about an appropriations bill. 
Everybody cooperated to try to get that done. We are told today there 
is great urgency about legislation. We are told that the majority 
leader wants the Congress to work on Veterans Day and so on.
  Then we are told, despite the fact that there is this urgency to get 
appropriations bills done and they request cooperation, that beginning 
next Wednesday we will spend 30 hours so that the majority can talk 
about the four judges they have not been able to get confirmed.
  It seems to me perhaps we should talk about the 168 judges we have 
confirmed. If we are going to take time in the middle of next week, 
after having worked on Veterans Day, because we believe there is such 
an urgency--and I believe there is an urgency with appropriations 
bills; we should get them done--if we are going to take 30 hours in the 
middle of the week in order to try to convince the American people that 
the Congress is not moving forward on judgeship nominations, and they 
are going to take 30 hours to talk about four judges who didn't get 
confirmed by the Senate, I think perhaps then we need to take much more 
time to talk about the 168 judges we did confirm.
  I am a little miffed at having these talk shows and others get all 
their talking points about how the Senate is stalling on judgeships. We 
are not stalling on judgeships. Most all of the Federal judges who have 
been nominated by this President have been confirmed by this Senate.
  We have an advise and consent responsibility. The Constitution does 
not say the President has a right to pick somebody and say to that 
person: For the rest of your life you will be a Federal judge.
  That is not the way the Framers of the Constitution described it. 
This described a dual role. The President shall nominate; the U.S. 
Senate shall confirm--advise and consent. Even George Washington ran 
into some tough sledding. Even George Washington lost a Federal judge 
in the Senate because they wouldn't confirm one of George Washington's 
judgeship appointments or nominations. So it started with George 
Washington.
  But when you talk about cooperation, this Senate has provided 
extraordinary cooperation with this President. We have confirmed 168 
judges. We have tried in every way possible to be cooperative. We have 
the lowest vacancy rate in 15 years on the Federal bench. Why? Because 
this Senate has worked with the President to confirm 168 judges.
  I understand my colleague wishes me to yield. I do so without losing 
my right to the floor.
  The PRESIDING OFFICER (Mr. Allard). The Senator from Arizona.
  Mr. McCAIN. Mr. President, if my colleague would allow me to speak 
for 5 minutes in morning business about an important issue to me.
  Mr. DORGAN. Providing that I am recognized at the conclusion of the 
remarks of the Senator from Arizona.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. McCAIN are located in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. BROWNBACK. Mr. President, will the Senator from North Dakota 
yield for a question?

[[Page 28120]]


  Mr. DORGAN. Mr. President, I yield to the Senator from Kansas for a 
question.
  Mr. BROWNBACK. Mr. President, if I can ask for permission to speak up 
to 3 minutes on a personal tribute in morning business and that the 
floor not be lost to the Senator from North Dakota.
  Mr. DORGAN. I will agree, provided I am recognized following the 
presentation.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  (The remarks of Mr. Brownback are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Mr. President, I know my colleague from West Virginia is 
preparing to speak. I will not be long. I will make a couple of 
comments to finish what I was discussing about next week's schedule.
  It is true the minority party in the Senate does not schedule the 
Senate; the majority party does and the majority leader does. This 
Senate is 51 to 49. Some pretend it is 100 to zero. In the 
circumstances, for example, with the energy conference, I am a 
Democratic conferee, and we have been disinvited and not allowed to 
attend any of the conferences with respect to the Energy bill. That is 
the wrong way, in my judgment, to do business in the Senate. It 
pretends as if one-half of the Senate doesn't exist when you do that.
  Having said all that, I understand we don't schedule the Senate; the 
majority leader does. We find ourselves now in the first week in 
November, with a number of very important appropriations bills not yet 
completed, with stories earlier in this week that the majority may well 
want to put unfinished appropriations bills in another appropriations 
conference and create an omnibus bill, and bring it to the Senate as a 
conference report so Members of the Senate would be prevented from 
offering any amendments to the legislation.
  Well, that is not acceptable; it is not the way to do business. I 
don't know whether that is what is being planned. I can only tell you 
that is what I read early this week, as described by some majority 
party aides, I guess they are called.
  In addition to the urgency of getting appropriations bills completed, 
we are now told next week's schedule will include 30 hours of debate on 
judges. Actually, there won't be any business before the Senate to 
debate; it will just be an opportunity for the majority party to 
ruminate for 30 hours about how unfair it has been that 4 nominees have 
not been approved by the Senate--4. Mr. President, 168 judicial 
nominees sent to us by the President have been confirmed by the Senate, 
and 4 have not been. Yet you would be led to believe by all of the 
information spewed out of this Chamber, from all of the political vents 
that exist here, that somehow the Senate has just been unwilling to 
approve judgeships.
  We have the lowest vacancy rate on the Federal bench in 15 years. 
Why? Because this Senate has been cooperative with this President with 
respect to judgeships. He has nominated and we have confirmed 168. If 
next week they want to spend time, in a moment when it is urgent to 
finish our work on appropriations bills, instead to talk about the 4 
judges who were not confirmed by the Senate, I want to come to spend 
some time talking about the 168 judges, including 2 from my State, both 
Republicans, both of whom I supported and was pleased to do so--I want 
to talk about the 168 judges we did confirm. I want the American people 
to understand what our record is with judges.
  My colleague from West Virginia knows about the Constitution, perhaps 
more than anyone in this Chamber. He has studied it, he has lived it, 
and he carries it in his pocket every day. His copy of the Constitution 
is one I enjoy seeing when he pulls it out of his pocket during debate 
on the floor of the Senate, because he describes it in vivid detail and 
gives life to this fabric of American Government. The Constitution does 
not say the President has a right to put a man or woman on the Federal 
bench for the rest of their lives. That is not what the Constitution 
says. The Constitution says we will provide lifetime appointments to 
the judiciary in the following manner: The President shall nominate, 
and the Senate shall give its advice and consent. So there are two 
steps: The President shall nominate and the Senate shall decide yes or 
no.
  There are circumstances where a President might say: I want to put 
someone on a very important Federal bench who is way outside the norm 
in terms of behavior, thought, or experience, or whatever; and the 
Senate has a right to say in that circumstance we are sorry, that is a 
person we are simply not going to confirm, Mr. President.
  That is not terribly unusual. George Washington failed to get one of 
his nominees confirmed--America's first President. So it is not unusual 
for the Senate to say, no, this is not a candidate we agree should be 
put on the Federal bench for a lifetime.
  In most cases, the President has sent us nominees we are satisfied 
with, and 168 of them have been approved; 4 have not been. In the 
middle of this time, when time is so critical and the appropriations 
bills are so urgently needed to be completed, the majority wants to 
ruminate and vent for 30 hours in the middle of next week about the 4 
who have not been approved.
  I say, as my colleague from Nevada has, I make no excuses for 
deciding not to support the nomination of Mr. Estrada. I make no 
excuses for that. Mr. Estrada wouldn't answer the questions when asked 
by the Senate Judiciary Committee. How do I know that? Because the same 
day that he was a witness before that committee, the same day his 
nomination was considered by that committee, a nominee for a judgeship 
in North Dakota was there before the committee. That candidate from 
North Dakota, whom I supported--and, incidentally, is a Republican--is 
a fine judge. I was pleased to support him. He answered the very 
questions put to him by that committee that Mr. Estrada refused to 
answer.
  Mr. Estrada refused to answer questions. He and the administration 
refused to release information that was requested. I have no reason to 
make any excuses for deciding to vote against Mr. Estrada. I wouldn't 
have voted for him and didn't vote for him. I am not apologetic about 
that.
  If next week in the middle of all of this urgency we are going to 
take 30 hours and decide just to have the majority party ventilate 
about the four who did not get approved by the Senate, then I say--my 
colleague from Nevada is here--I would like to be part of a process 
that talks about the 168 Federal judges we did approve, all Republican 
incidentally--168 of them we did approve. We will get some pictures and 
get their story. I will talk about a few of them. I hope my colleagues 
will as well because the American people need to understand the story, 
and the story is not of the four who didn't get approved by the Senate.
  The story is the lowest vacancy rate in 15 years on the Federal bench 
because the Senate has moved forward on judgeships and because we have 
confirmed judges sent to us by this President and because we have 
succeeded in that effort. That is the story next week. If we are going 
to have 30 hours for the other side to ventilate about the 4 who didn't 
make it, I want 60 hours to talk about the 168 we did confirm.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I wish to take a couple of moments to 
do a few items cleared on both sides.

                          ____________________