[Congressional Record (Bound Edition), Volume 155 (2009), Part 13]
[Senate]
[Pages 18252-18282]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 1390, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 1390) to authorize appropriations for fiscal 
     year 2010 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 
     purposes.

  Pending:

       Thune amendment No. 1618, to amend chapter 44 of title 18, 
     United States Code, to allow citizens who have concealed 
     carry permits from the State in which they reside to carry 
     concealed firearms in another State that grants concealed 
     carry permits, if the individual complies with the laws of 
     the State.

  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.


                             Cap and Trade

  Mr. JOHANNS. Mr. President, I rise to discuss an Agricultural 
Committee hearing that is scheduled later on this week. It is an 
important topic. The hearing is titled ``The Role of Agriculture and 
Forestry in Global Warming Legislation.'' I look forward to 
participating. This is the committee's first effort this year to tackle 
the ongoing climate change debate. It is very important. Much of the 
discussion in both Houses of Congress has centered on potential new 
legislation and regulations relative to climate change. Any kind of new 
climate-related law would have sweeping consequences that touch every 
corner of American life. Thus, I have made it clear that any climate 
change legislation should require a robust, open, and extensive debate 
on the Senate floor.
  Numerous studies have now been released about cap and trade and 
affect on American life. Those studies also include agriculture. During 
last year's debate over cap and trade, the Fertilizer Institute 
released a study stating that the legislation would result in a $40 to 
$80 increase in the cost to produce an acre of corn. That means higher 
input costs for livestock producers as well. That same study indicated 
the cost of producing soybeans would increase from $10 to $20 an acre. 
Wheat would jump $16 to $32 an acre.
  According to one recent analysis, the Waxman-Markey cap-and-trade 
bill would also have a significant, if not severe, impact on 
agriculture. If the bill is enacted, farm income is estimated to 
decrease as much as $8 billion in the year 2012. By 2024, farmers stand 
to lose $25 billion. An eye-popping $50 billion would be lost by 
farmers by 2035. Gasoline and diesel costs are expected to increase by 
58 percent. Electric rates would soar maybe as high as 90 percent.
  Agriculture is an energy intensive industry. Those kinds of increased 
costs are certainly going to impact this business. These are not 
isolated studies. The American Farm Bureau Federation, the largest 
agricultural organization in the country, has also studied these costs. 
The Farm Bureau reported that if Waxman-Markey were to become law, 
input costs for agriculture would rise by $5 billion, compared to a 
continuation of current law. Other studies have indicated in various 
ways that the likely impact of cap and trade would include increased 
electricity and heating costs, construction costs, fertilizer prices, 
higher gas, and higher diesel prices. Different studies come up with 
varied numbers, but they all paint the same picture--agriculture loses.

[[Page 18253]]

  None of this should surprise anyone because the bill is specifically 
designed to increase the cost of energy.
  In fact, according to the Congressional Budget Office:

       Reducing emissions to the level required would be 
     accomplished mainly by stemming demand for carbon-based 
     energy by increasing its price.

  We also know farmers in America's heartland get hit worse by these 
high energy costs, and we know that USDA agrees. Last week, USDA 
officials indicated in testimony to the Senate Environment and Public 
Works Committee that as a result of cap-and-trade legislation:

       The agriculture sector will face higher energy and input 
     costs.

  At the very least, all of this tells us that this is an enormously 
complicated issue with significant economic ramifications, perhaps as 
complex as any we will deal with this Congress, not to mention very 
costly. Given the gloomy predictions about cap-and-trade proposals, it 
seems clear to me that we need to take an approach that is extensive, 
methodical, and well thought out. We need more specific and clear 
analysis to make sure we know--and, most importantly, the American 
people know--exactly what passage of this bill will mean.
  As I mentioned, USDA knows that cap and trade will increase energy 
prices. Here is the kicker: At the same time the Department also has 
indicated:

       USDA believes the opportunities for climate legislation 
     will likely outweigh the costs.

  Let me say that again: USDA says energy prices will increase, but 
they think the opportunities for climate change legislation will 
outweigh the costs. This kind of claim must be based on hard data or it 
is reckless to make the claim. Such a sweeping conclusion should not be 
drawn unless the impact is studied and analyzed. If USDA has conducted 
analysis of increases in farm input costs and weighed them against the 
measured opportunities, then I applaud their efforts. But if that is 
the case, it is mystifying that the Department has not shared the 
analysis, despite having testified before the Senate twice in the 2 
weeks preceding this week.
  Having served as the Secretary of Agriculture, I know that the USDA 
has an outstanding team of economists with expertise to do this kind of 
analysis. That is why last week I sent a letter to the current Ag 
Secretary, Tom Vilsack, who will testify at the Ag Committee hearing 
this week. The letter requested USDA to provide the following: A State-
by-State analysis of the cost of cap and trade on ag industries; a 
crop-specific analysis; an analysis of how the legislation would impact 
livestock producers; finally, USDA's assessment of how many acres will 
be taken out of production as a result of the bill and what impact this 
will have on food availability, the cost of food, fiber, feed, 
biofuels, and other ag products.
  Without detailed analysis, USDA's assertions about costs and benefits 
will simply ring hollow. Why wouldn't the USDA provide this 
information? Isn't this why the department exists? Agriculture is going 
to be directly impacted by the legislation. Yet we have no analysis 
from the people's department. If the people who feed the world are 
going to get hammered by this legislation, we should know about it. We 
should debate it, and we should vote on it on this floor.
  I hope the third time is the charm for the USDA, and they bring more 
than rhetoric to Wednesday's hearing. Cap and trade will not affect 
States, crops or regions equally. It will have a different impact on a 
corn farmer in Nebraska than on a chicken farmer in Arkansas. 
Similarly, it will impact a dairy farmer in New York differently than 
the orange grower in California. We need a State-by-State and 
commodity-by-commodity analysis. One-size-fits-all will not work. A 
national average would not paint a true picture. When one is camping, 
they can't put one foot in the cooler and one foot in the campfire and, 
on average, it is about right. The same goes for loose assessments that 
are riddled with averages.
  We have a responsibility to seek a full understanding of this 
legislation's impact on our Nation's farmers and related ag industries. 
The information I requested is critical to help the Senate and 
America's producers develop a clearer picture of cost increases for 
farmers, ranchers, and consumers.
  We need the impact analysis to tell us which parts of the country 
will be hit the hardest and which industries within agriculture will 
incur the greatest losses as a result of this legislation.
  I have asked for this analysis prior to the hearing. I believe it is 
necessary, and I hope we will have it before the hearing.
  I am puzzled by the passage of nearly a full week since my request 
and no analysis has been provided. I trust the administration has 
nothing to hide. I will remain engaged in the debate. I look forward to 
Wednesday's hearing.
  With that, Mr. President, I yield the floor.


                   Recognition Of The Minority Leader

  The ACTING PRESIDENT pro tempore. The Republican leader is 
recognized.
  Mr. McCONNELL. Mr. President, I am going to proceed on my leader 
time.
  The ACTING PRESIDENT pro tempore. The Senator is recognized.


                          Sotomayor Nomination

  Mr. McCONNELL. Mr. President, I want to begin by thanking the 
Judiciary Committee staff, as well as Senators Leahy and Sessions, for 
conducting a collegial, civil, and dignified hearing on the matter of 
the Supreme Court nomination. In my view, the hearing was in perfect 
keeping with the importance of the task before it.
  Article II, section 2 of the Constitution says the President ``shall 
nominate''--``by and with the Advice and Consent of the Senate''--
``Judges of the supreme Court.'' It is an obligation that all of us in 
the Senate take very seriously, even though Senators have not always 
agreed on the exact meaning of the phrase ``advise and consent.'' In 
fact, it has been the subject of significant disagreement and struggle 
over the years.
  I remember from my days as a young staffer on the Senate Judiciary 
Committee in the late 1960s and early 1970s, when the debate flared up 
over the nominations of Clement Haynsworth and Harrold Carswell after a 
full century in which appointments to the Supreme Court had more or 
less been a sleepy Presidential prerogative.
  It was during that time that I first grasped the danger of 
politicizing the process. By focusing on a nominees's ideology or 
political views above all else, I feared the Senate would end up 
distorting its traditional role of providing advice and consent and 
weaken the Presidential prerogative of making appointments to the 
Court.
  I was so concerned, in fact, about the potential dangers that I wrote 
a law review article on the topic, which I have repeatedly returned to 
over the years. Its purpose was to establish a meaningful standard for 
considering Supreme Court nominees that would bring some consistency to 
the process.
  In the course of developing that standard, I went back and looked at 
the history of nominations, and I noticed something interesting: Every 
time a Senator had opposed nominees in the past, the reason for doing 
so was almost always based on the nominees's ``fitness''--even if it 
was perfectly clear to everyone else that the Senator's opposition was 
based on political or ideological differences.
  What this polite fiction showed me, quite clearly, was that up until 
fairly recent history, ideology had never been viewed as an openly 
acceptable reason to oppose a nominee. And, in my view, this aversion 
to a political litmus test was a good convention and well worth 
following if we wanted to avoid gridlock every time the White House 
switched parties.
  So I developed a list of fairly standard criteria that I had hoped 
would govern the process: A nominee must be competent; have obtained 
some level of distinction; have a judicial temperament; violated no 
existing standard of ethical conduct; and have a clean record in his or 
her life off the bench.
  In short, a President should be given great deference on his choice 
of a

[[Page 18254]]

nominee, and these criteria certainly allowed that. As a Senator, I 
have consistently applied these criteria to Supreme Court nominees by 
Presidents of both parties.
  In adhering to this standard, I was confident I had history on my 
side. Despite a few notable exceptions, during the last century the 
Senate understood its advice and consent role to be limited to an 
examination of a nominee's qualifications, not his or her ideology. 
This attitude is consistent with the Framers' decision, after no little 
debate, to invest the President, not the Senate, with the power to 
nominate Justices. They did not want politics to interfere. And that is 
why it has always been my view that opposing a nominee to the Supreme 
Court because he or she has a different judicial philosophy than I do 
was not a valid reason for doing so.
  During the Clinton years, I had no illusions about the ideology or 
political views of Stephen Breyer or Ruth Bader Ginsburg. Justice 
Ginsburg's views on a number of contentious issues were well known and 
clearly different than my own, such as her view that Mother's Day 
should be abolished or that the Boy Scouts and Girl Scouts should be 
criticized for perpetrating false stereotypes about gender.
  Most Americans, and certainly most Kentuckians, do not think those 
kinds of things. Yet despite that, I and the vast majority of my 
Republican colleagues voted for Justice Ginsburg. Why? Because the 
Constitution gave the President the power to nominate. And, in my view, 
Justice Ginsburg met the traditional standards of competence, 
distinction, temperament, and ethical conduct.
  The vote in favor of Justice Ginsburg was 96 to 3. The vote in favor 
of Justice Breyer was 87 to 9. I voted for both, just as I had voted 
for every previous Republican nominee to the high Court since my 
election to the Senate--consistent with my criteria and based on their 
qualifications.
  In voting for nominees such as Ginsburg and Breyer, it was my hope 
that broad deference to a President's judicial nominees would once 
again become the standard. Even if the treatment of Republican 
nominees, such as Robert Bork and Clarence Thomas, suggested that many 
Democrats felt differently than I did, it was still possible at that 
time to imagine a day when the traditional standard would reemerge. As 
it turned out, that hopefulness was misplaced and short-lived.
  Things changed for good during the last administration. It was then 
that the Democrats turned their backs on the old standard once and for 
all. Ideology as a test would no longer be the exception but the rule. 
The new order was firmly established at a Democratic retreat in April 
2001 in which a group of liberal law professors laid out the strategy 
for blocking any high-level conservative judicial nominee. The strategy 
was reinforced during a series of hearings in which Senator Schumer 
declared that ideology alone--ideology alone--was sufficient reason to 
block judicial nominees.
  These events marked the beginning of a seismic procedural and 
substantive shift on judicial nominees, and the results were just as I 
had anticipated as a young staffer. Democrats would now block one 
highly qualified nominee after another to the appeals court for no 
other reason than the fact that they were suspected of being too 
conservative for their tastes.
  Miguel Estrada was one of the first victims of the new standard. 
Because he had been nominated by a Republican, Estrada got no points 
for his compelling personal story, despite the fact that he had come 
here as a child from Honduras, went to Harvard Law School, clerked on 
the U.S. Supreme Court, and served as a prosecutor in New York and at 
the Justice Department. He was blocked by seven leadership-led 
filibusters--an unprecedented action for an appeals court nominee.
  Opponents of the Estrada nomination were ruthless and eventually 
succeeded in driving him to withdraw from consideration after more than 
2 years of entrenched opposition. He was not alone. Democrats employed 
the filibuster strategy against an entire block of Republican nominees 
on the insistence of special interest groups and in complete 
contravention of Senate tradition--often relying on the flimsiest of 
pretexts for doing so.
  As a result, several widely respected, highly qualified nominees saw 
what should have been a high honor transformed into a humiliating and 
painful experience for themselves and for their families; the country 
was deprived of their service on the circuit court; and the standard I 
had articulated and applied throughout my career became increasingly 
irrelevant.
  Despite my efforts to preserve deference and keep ideology out of the 
process, the proponents of an ideological test had won the fight; they 
changed the rules. Filibustering nominees on the grounds of ideology 
alone was now perfectly acceptable. It was now Senate precedent.
  Some may argue that Republicans were no better since a few of them 
supported filibusters against two Clinton-era nominees, Richard Paez 
and Marsha Berzon. It is a flawed comparison. First, neither filibuster 
attempt got very far. And in both cases, the leadership--the 
leadership--of the Republican Party, including me, strongly opposed the 
effort.
  Senator Lott, the then-majority leader at the time, voted in favor of 
allowing an up-or-down vote on both nominees, even though he would 
ultimately vote against them as nominees to the Ninth Circuit, as did I 
and the vast majority of our conference. It was our view that a 
President--and in that instance President Clinton--deserved 
considerable deference and that therefore his nominees should not be 
filibustered.
  The new standard devolved even further during the Roberts nomination. 
Judge Roberts was a spectacular nominee, a man whose background and 
legal abilities, even according to Democrats, made him one of the most 
qualified Supreme Court nominees in the history of our country. For 
him, Democrats came up with an even more disturbing test.
  Ironically, no one Senator articulated this new test more forcefully 
than Senator Obama. In a floor speech announcing his opposition to John 
Roberts, Senator Obama was perfectly straightforward. Roberts was 
completely qualified, he said. But he still would not get his vote. 
Here is what Senator Obama said on the Senate floor:

       There is absolutely no doubt in my mind Judge Roberts is 
     qualified to sit on the highest court in the land. Moreover, 
     he seems to have the comportment and the temperament that 
     makes for a good judge. He is humble. He is personally 
     decent.

  The reason Senator Obama would vote against Judge Roberts, he said, 
rested not on any traditional standard, but on a new one, a standard 
which amounted to a kind of alchemy based on what he described as 
``one's deepest values, one's core concerns, one's broader perspectives 
on how the world works, and the depth and breadth of one's empathy''--
what has come to be known as the ``empathy standard.''
  So over the course of the Bush administration the rules completely 
changed. Not only had it become common practice to block nominees on 
the grounds of ideology, but now it was acceptable to reject someone 
based solely on the expectation that their feelings--their feelings--
would not lead them to rule in favor of certain groups. Suddenly, 
judges were not even expected to follow the fundamental principle of 
blind justice. Deference had eroded even more.
  As I have stated repeatedly throughout this debate, empathy is a very 
good quality in itself. And I have no doubt that Senator Obama--now 
President Obama--had good intentions, and that his heart was in the 
right place when he made this argument. But when it comes to judging, 
empathy is only good if you are lucky enough to be the person or group 
that the judge in question has empathy for. In those cases, it is the 
judge, not the law, who determines the outcome. And that is a dangerous 
road to go down if you believe, as I do, in a nation not of men but of 
laws--which brings us to Judge Sotomayor.
  Over the past several weeks, Judge Sotomayor has impressed all of us 
with her life story. And the confirmation

[[Page 18255]]

process is not easy. I admire anyone who goes through it, which is why 
I was gratified by Judge Sotomayor's statement at the conclusion of the 
hearing that she was treated fairly by everyone.
  But the first question I have to ask myself in deciding how to vote 
on this nominee is this: How stands the traditional standard for voting 
on nominees?
  Deference is still an important principle. But it was clearly eroded 
during the filibusters of appeals court nominees early in the Bush 
administration, and it was eroded even further when Senators voted 
against John Roberts and tried to filibuster Samuel Alito. Moreover, 
the introduction of a new standard--the empathy standard--forces us to 
reevaluate again the degree of deference a President should be granted. 
Isn't it incumbent upon even those of us who have always believed in 
deference to be even more cautious about approving nominees in this new 
environment? I believe it is.
  If empathy is the new standard, then the burden is on any nominee who 
is chosen on that basis to show a firm commitment to equal justice 
under law. In the past, such a commitment would have been taken for 
granted. Americans have always had faith that our judges would apply 
the law fairly--or at least always knew they should. Unfortunately, the 
new empathy standard requires a measure of reassurance about this. If 
nominees aren't even expected to apply equal justice, we can't be 
expected simply to defer to the President, especially if that nominee, 
as a sitting judge, no less, has repeatedly doubted the ability to 
adhere to this core principle.
  This doesn't mean I would oppose a nominee just because he or she is 
nominated by a Democrat. It means that, at a minimum, nominees should 
be expected to uphold the judicial oath that judges in this country 
have taken since the earliest days of our Nation; namely, that they 
will ``administer justice without respect to persons, and do equal 
right to the poor, to the rich, and . . . faithfully and impartially 
discharge and perform all the duties incumbent upon them under the 
Constitution and laws of the United States, so help [them] God.''
  Looked at in this light, Judge Sotomayor's record of written 
statements suggests an alarming lack of respect for the notion of equal 
justice and therefore, in my view, an insufficient willingness to abide 
by the judicial oath. This is particularly important when considering 
someone for the Supreme Court since, if she were confirmed, there would 
be no higher court to deter or prevent her from injecting into the law 
the various disconcerting principles that recur throughout her public 
statements. For that reason, I will oppose her nomination.
  Judge Sotomayor has made clear over the years that she subscribes to 
a number of strongly held and controversial beliefs that I think most 
Americans, and certainly most Kentuckians, would strongly disagree 
with, but that is not why I oppose her nomination; rather, it is her 
views on the essential question of the duty of a judge and the fact 
that there would be no check on those views were she to become a member 
of the Supreme Court.
  In her writings and in her speeches, Judge Sotomayor has repeatedly 
stated that a judge's personal experiences affect judicial outcomes. 
She has said her experiences will affect the facts she chooses to see 
as a judge. Let me say that again. She has said her experiences will 
affect the facts she chooses to see as a judge. She has argued that in 
deciding cases, judges should bring their sympathies and prejudices to 
bear. She has dismissed the ideal of judicial impartiality as an 
``aspiration''--an aspiration--that, in her view, cannot be met even in 
most cases. Taken together, these statements suggest not just a sense 
that impartiality is not just impossible but it is not even worth the 
effort.
  But there is more. It appears these views have already found 
expression in Judge Sotomayor's rulings from the bench. The clearest 
evidence of this is the judgment of the Supreme Court itself. The 
Supreme Court doesn't take easy cases. It only takes cases where there 
is no easy precedent, where the law is not crystal clear, cases where 
somebody's policy preferences can more easily make their way into an 
opinion. In this vein, it is worth noting that the Supreme Court has 
found that Judge Sotomayor misapplied the law in 9 of the 10 cases in 
which her rulings were brought before it. In this term, in fact, she is 
zero for three. Not only isn't this a record to be proud of, together 
with her statements about impartiality, it is a record to be scared of 
if you happen to find yourselves standing in front of Justice 
Sotomayor.
  Her most recent reversal by the Court is a perfect illustration of 
how her personal views can affect an outcome. I am referring to the 
Ricci case in which a majority of the Justices of the Supreme Court 
rejected Judge Sotomayor's decision, and all of them, all nine of them, 
agreed that her reading of the law was flawed.
  This was a case in which a group of firefighters who had studied hard 
and passed a written test for promotion were denied it because not 
enough minority firefighters had scored as well as they had. In a one-
paragraph opinion that a number of judges on her own court criticized 
as insubstantial and less than adequate given the seriousness of the 
circumstances, Judge Sotomayor flatly rejected an appeal by 
firefighters who had scored highly.
  Here was a case where Judge Sotomayor's long history of advocacy for 
group preferences appeared to overtake an evenhanded application of the 
law. Judge Sotomayor didn't empathize with the firefighters who had 
earned a promotion, and they suffered as a result. This is the real-
world effect of the empathy standard. If the judge has empathy for you, 
great, but if she has it for the other guy, it is not so good. That is 
why you can call this new standard a lot of things, but you certainly 
can't call it justice.
  Judge Sotomayor's record on the Second Circuit is troubling enough, 
but, as I have noted, at least on the circuit court there is a 
backstop. Her cases can be reviewed by the Supreme Court. This meant 
that in the Ricci case, for example, the firefighters whose promotions 
were unfairly denied could appeal the decision. Fortunately for them, 
the Supreme Court sided with them over Judge Sotomayor. If, however, 
Judge Sotomayor would become a Supreme Court Justice, her rulings would 
be final. She would be unencumbered by the obligation of lower court 
judges to follow precedent. She could act more freely on the kinds of 
views that animated her troubling and legally incorrect ruling in the 
Ricci case. That is not a chance I am willing to take.
  From the beginning of the confirmation process, I have said that 
Americans expect one thing when they walk into a courtroom, whether it 
is a traffic court or the Supreme Court, and that is equal treatment 
under the law. Over the years, Americans have accepted significant 
ideological differences in the kinds of men and women various 
Presidents have nominated to the Supreme Court, but one thing Americans 
will never tolerate in a nominee is a belief that some groups are more 
deserving of a fair shake than others. Nothing could be more offensive 
to the American sensibility than that.
  Judge Sotomayor is a fine person with an impressive story and a 
distinguished background. But above all else, a judge must check his or 
her personal or political agenda at the courtroom door and do justice 
evenhandedly, as the judicial oath requires. This is the most basic and 
therefore the most fundamental standard of all upon which judges in our 
country must be judged. Judge Sotomayor does not meet the test.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I congratulate the Republican leader on 
his statement. I think it was very thorough. I think it was very 
thoughtful, and I am sure it took a lot of hours of deliberation and 
observation not only of Judge Sotomayor's record but also of her 
testimony before the Judiciary Committee. So I congratulate the 
Republican leader on a very thoughtful statement and one that I think 
makes

[[Page 18256]]

very clear the reason he reached the difficult decision to oppose the 
nomination of Judge Sotomayor for the U.S. Supreme Court.
  I wish to say that we are supposed to be on the Department of Defense 
authorization bill. Obviously, we are not. We are on the hate crimes 
bill, which the majority leader decided was important enough to replace 
the proceedings of the Senate on the Defense authorization bill and the 
very urgent mission we have and obligation and duties we have as a 
Congress to authorize the means necessary to defend the security of 
this Nation and the men and women who are defending it. So we will be 
wrapped around the axle on amendments and which ones are allowed and 
time agreements. I am not saying this legislation would have moved 
forward smoothly; there are always some difficulties. But for many 
years now, I have been involved in the authorization bill, and this is 
the first time I ever saw the majority leader of the Senate come 
forward and propose a comprehensive piece of legislation which had not 
gone through the committee of authorization, and, of course, this side 
of the aisle then had to, as is our right, propose an amendment of our 
own. Of course, there is some reluctance on this side of the aisle to 
agree to a time agreement, and so we go back and forth. Meanwhile, the 
men and women of the military are in two wars and they don't quite 
understand why we don't just move forward and do what our oath of 
office requires us to do, and that is to support and defend the 
Constitution of the United States. So I will continue to work with the 
distinguished chairman, and I am hoping we will be able to work 
together to get the legislation moving again.
  I understand there are four amendments to be considered on the hate 
crimes bill and that a gun amendment has been introduced and there may 
be amendments on that, and time agreements. Meanwhile, the issue of the 
F-22 and whether we continue production of it is set aside while we 
debate nongermane amendments to the Defense authorization bill.
  So I guess what is probably going to happen, from previous 
experience--and I don't know--probably around Thursday, the majority 
leader will come to the floor and say that we haven't moved forward and 
we haven't made progress, blame it on this side of the aisle, and file 
cloture. Then we will have a vote on cloture. I would imagine that 
given--I don't know how that vote turns out; it depends on whether 
Members on both sides of the aisle feel their amendments or their views 
have been adequately addressed.
  But I am convinced that we would have moved forward with the 
authorization bill, that we probably could have addressed the issue of 
the F-22--and I do not say this side of the aisle is blameless, but I 
do understand why, when we knew hate crimes was going to be brought up, 
that those who feel strongly on this side of the aisle--including the 
fact that it never went through the Judiciary Committee; it has never 
been reported out but is added on a defense authorization bill--had 
their concerns. So it is unfortunate. It is unfortunate, and it is not 
really a good statement about the way we represent the American people, 
because if there is any legislation we should be moving forward on--and 
I will take responsibility on this side of the aisle too--that 
certainly is the Defense authorization bill.
  I believe there is an unbroken record of approval of the Defense 
authorization bill over a many-year period of time. I hope that, on 
behalf of the greater good, we can sit down and work out amendments and 
work through the hate crimes and the amendment by the Senator from 
South Dakota, and we can move forward and get this issue resolved. I 
don't think it is the right way to do business, particularly when we 
are talking about the defense of the Nation.
  So I pledge to my colleague from Michigan, the distinguished chairman 
whom I have had the great honor of working with for many years, to try 
to work through this. But I still maintain that the fact that the 
majority leader of the Senate felt it necessary to bring a hate crimes 
bill up before the Senate on a defense authorization bill, which is 
clearly not germane, triggered this situation we are in today.
  Having said that, it is what it is, and so I will go in the back now 
and see where we can work out amendments, see if we can work out an 
agreement to have the hate crimes vote, to have the gun vote, and then 
hopefully work with the target of tomorrow morning for voting on the F-
22 since, as we have discussed in the past on the floor of the Senate, 
the importance of that vote is far transcendent of any single weapons 
system. It is really all about whether we are going to have business as 
usual and spend taxpayers' money on what the President of the United 
States, the Secretary of Defense, the Chairman of the Joint Chiefs of 
staff, and our other military leaders think should be spent on the 
Joint Strike Fighter rather than further production of the F-22. From 
what I understand, it may be a close vote and a very interesting one. I 
wish we were spending more time debating that than hate crimes and gun 
amendments.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan is 
recognized.
  Mr. LEVIN. Mr. President, first of all, we are operating under a 
unanimous consent agreement. We have an agreement to vote on the F-22 
amendment after 2 hours of debate. We are attempting to schedule that 
now. People are getting the cooperation of Members for tomorrow 
morning. That is our goal.
  The pending amendments to the hate crimes provision are going to be 
disposed of this afternoon pursuant to that same unanimous consent 
agreement. There may be a difference as to how we got to where we are. 
There is a difference; it was the inability to get the F-22 amendment 
to a vote, to get a time agreement, which triggered the determination 
of the majority leader to offer an amendment that Senator Kennedy had 
offered about 2 years ago on a Defense authorization bill. It passed 
the Senate after a long debate.
  It is not the first time hate crimes was taken up by the Senate. It 
is not the first time the hate crimes amendment was offered on the 
Defense authorization bill. It was offered 2 years ago, and it passed 
on a 60-to-39 vote, I believe. It was Senator Kennedy's amendment. Of 
course, Senator Kennedy is not available now to offer his own 
amendment. The majority leader offered it because of Senator Kennedy's 
necessary absence.
  So now we are operating under a unanimous consent agreement. The 
pending amendment is Senator Thune's. It is not germane, but, again, it 
is not unusual that nongermane amendments are offered in the Senate. We 
try to keep them to a minimum--those who manage bills--in order to get 
through the bill.
  We are hoping that once the F-22 amendment and the amendment of 
Senator Thune are disposed of, we will then be able to get back to 
germane and relevant amendments. That is our hope. In order for that to 
happen, we need Members of the Senate to bring those amendments to the 
floor and tell us they are ready to proceed.
  We are working very hard, as we always do, and our staffs are working 
very hard, as they always do, to clear amendments. I believe we have 
about 20 amendments that have been cleared already and, at an 
appropriate time, I believe Senator McCain and I will be able to offer 
them as a package.
  Senator McCain was extremely helpful in getting us to the point where 
we could enter the unanimous consent agreement. A vote is scheduled 
today on our hate crimes-related amendment. We have a time agreement on 
the F-22 amendment, and a time for voting on that amendment is being 
discussed. It is my goal that we vote on that amendment tomorrow 
morning after we debate it.
  Please, colleagues, bring your amendments to the floor. We are here. 
We are ready to be notified of those amendments on which Members of the 
Senate believe we will need a rollcall vote. We will try to clear as 
many amendments as we can. We urge our colleagues to notify us now of 
the amendments they intend to offer.

[[Page 18257]]

  Mr. President, I ask unanimous consent that amendment No. 1614 be 
identified as a Kennedy amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEVIN. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BROWN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                        Moon Landing Anniversary

  Mr. BROWN. Mr. President, I rise to celebrate the historic event that 
took place on this date 40 years ago. On this day in 1969, Ohio native 
Neil Armstrong became the first human to step foot on the Moon.
  For those of us old enough to remember that day, it was a day when 
the stuff of dreams became reality. While that magical moment is still 
a source of inspiration for young people today, the times in which the 
landing took place are often forgotten. The United States and the 
Soviet Union were in the middle of the space race, but the Moon landing 
was about so much more than who could get there first.
  It was the height of a major progressive era in our Nation's history, 
which saw the establishment of Medicare and Medicaid; saw the Civil 
Rights and Voting Rights Act signed into law; the creation of Head 
Start; a time which saw the beginning of the environmental movement in 
our time, all within about a 5-year period, during that progressive 
era.
  It was also a time of turmoil for America. We were a nation at war. 
We bore witness to the assassinations, only a year before, of Dr. 
Martin Luther King and Robert Kennedy.
  When America needed heroes--and it did that summer in 1969--it found 
them in the crew of the Apollo 11 spacecraft.
  Despite uncertain times our Nation faced, we refused to succumb. We 
moved forward in the most American way--working to achieve what others 
said could not be done.
  I was 16 years old when Neil Armstrong took that historic first step. 
Neil Armstrong is from Wapakoneta, OH, in the western part of the 
State, with just shy of 10,000 people and a little more than 100 miles 
or about a 2-hour drive from where I grew up.
  I remember those days when I was 16. We had a black-and-white 
television, and my brother convinced my parents, because we were the 
only ones among our friends who still had a black-and-white TV, that 
they should go out and get a colored TV so we could watch the Moon 
landing. I think my brother knew--although I am not sure--that the Moon 
landing would be broadcast in black and white. But my brother convinced 
my parents to get that TV, on which we enjoyed watching Cleveland 
Indians baseball games and other things after that. Nonetheless, I am 
sure almost everybody of almost any age remembers, after watching that 
Moon landing, going outside on that late July night and looking up at 
the Moon and being private with our thoughts, wondering about these two 
Americans walking on the Moon, wondering about the other American in 
the space capsule--not at that time able to walk on the Moon. He was 
staying inside the space capsule.
  I remember, too, 7 years before Neil Armstrong landed on the Moon, 
similar to most Americans, watching John Glenn, from New Concord, OH, 
become the first American to orbit the Earth.
  So an Ohioan was the first one to orbit the Earth and an Ohioan was 
the first to walk on the Moon.
  Today, such as then, NASA continues to capture our Nation's 
imagination. While Neil Armstrong will forever be remembered as the 
Christopher Columbus of our time, his step for all humankind was a 
culmination of the efforts of thousands of Americans who dedicated 
themselves to landing on the Moon.
  It was more than his crew mates, Buzz Aldrin and Michael Collins. It 
was more than the hundreds of men and women at mission control. From 
what is now NASA Glenn Research Center in Cleveland to the hundreds of 
thousands of scientists and researchers around the Nation, the Moon 
landing was about the American spirit and know-how. The Apollo 11 Moon 
landing was a national collaborative success.
  As we look back on the past 40 years, we have seen a different 
country in a different time, with many of the same challenges. As our 
Nation struggles to pull itself out of the current economic downturn, 
we have debated what role the government should play in space 
exploration. While we debate the future of NASA, we must also remember 
the billions of dollars of economic benefit NASA has brought, and is 
still bringing, our Nation.
  The myth that the Federal Government is incapable of doing great 
things is shattered when one thinks of achievements such as the Moon 
landing--not to mention Medicare, Social Security, and all we talked 
about in that progressive era.
  From the six Apollo landings, to Skylab, to cooperation with the 
Soviet Union, to the shuttle program, to the Hubble telescope, to the 
space shuttle, and beyond, NASA has touched and improved nearly every 
aspect of our American way of life.
  Those who believe government should sit on the sidelines and merely 
be an observer in our Nation's future need not look back 40 years but 
can look at everything NASA has done and what it continues to do today.
  Today, NASA, in many ways, is more important than ever. As we work 
toward a carbon-free economy, we forget that NASA was building the 
first large-scale windmills in the 1970s. Much of the early work on 
wind turbine technology development was done at Plum Brook in northern 
Ohio, near Sandusky, part of NASA Glenn.
  In a modern version of the space race, the United States is in a 
sprint to lead the world in clean energy. NASA's alternative fuel 
research laboratory, and its solar-powered aircraft, Helios and 
Pathfinder Plus and its space solar program are just three of the many 
NASA clean energy programs.
  We can create a carbon-free world, and NASA can lead the way, just 
like it has in aeronautics and space flight. We must never forget the 
men and women of NASA and their work that enabled the United States to 
put Apollo 11 on the Moon.
  I am proud to cosponsor S. 951, which would authorize the President 
to award Congressional Gold Medals to Neil A. Armstrong, the first 
human to walk on the Moon; Edwin E. ``Buzz'' Aldrin, Jr., the pilot of 
the lunar module and second person to walk on the Moon; Michael 
Collins, the pilot of their Apollo 11 mission's command module; and the 
first American to orbit the Earth, John Herschel Glenn.
  The bill's sponsor is Senator Nelson of Florida, an American hero in 
his own right, who has a long history of service to our Nation and 
NASA.
  Today is a celebration of NASA, of the Apollo mission, and a 
celebration of our country. It is also a celebration of humankind's 
ability to do great things. Today is a celebration of reaching for the 
stars in every way.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICDER (Mr. Warner). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I am very concerned about legislation 
that has been added to the Defense bill, the so-called Hate Crimes Act. 
Certainly, none of us has any sympathy whatsoever for people who commit 
crimes of any kind, particularly those who would attack somebody 
because of their race, ethnicity, sexual orientation, or any other 
reason. I wish to take a few moments to explain why this is important 
and why this legislation is not good

[[Page 18258]]

and it ought not to be passed. Some of my remarks may appear to be 
technical, but they are very important, in my view, as a former Federal 
prosecutor for almost 15 years.
  I don't think it was ever appropriate that we bring this legislation 
to the floor and stick it on this Defense bill without having a markup 
in the committee without the ability to discuss it and improve it.
  For years legal commentators and jurists have expressed concern at 
the tendency of Congress, for the political cause of the moment, to 
persist in adding more and more offenses to the U.S. Criminal Code that 
were never Federal U.S. crimes before. This is being done at the same 
time that crime rates over the past decade or so have dropped and State 
and local police forces have dramatically improved their skills and 
technology. There are really fine police forces all over the country 
today. An extraordinary number of police officers have college degrees 
and many advanced degrees.
  I think two questions should be asked initially. First, is this a 
crime that uniquely affects a Federal interest, and can it be addressed 
by an effective and enforceable statute? Second, have local police and 
sheriffs' offices failed to protect and prosecute this vital interest?
  Most people do not understand that a majority of crimes--theft, rape, 
robbery, and assault--are not Federal crimes and are not subject to 
investigation by the FBI or any other Federal agency. They could not do 
so if they wanted to because they have no jurisdiction. They can only 
investigate Federal crimes. It has been this way since the founding of 
our country, and it fixes responsibility for law enforcement on local 
authorities where it should be.
  Americans have always feared a massive Federal Government police 
force. It is something that we have not ever favored. This is not 
paranoia but a wise approach, and I do not think it should be changed.
  Instead of administering justice without fear or favor, this 
legislation that has been placed on this bill creates a new system of 
justice for individuals because of their sexual orientation or gender 
identity, providing them with a special protection, while excluding 
vulnerable individuals, such as the elderly or police officers or 
soldiers, from such special protections. I don't think we can justify 
that.
  The purpose of the DOD reauthorization bill is to make sure the men 
and women who protect our freedoms have the necessary resources to 
continue to do the fabulous job they have been doing. We should not 
deviate from this path by addressing matters wholly unrelated to the 
defense of our Nation.
  A bill of such breadth and lack of clarity as this should be 
carefully reviewed with the opportunity for discussion and amendment in 
committee. Yet this legislation had no markup in any committee. In 
fact, no version of the bill has been marked up since 2001, and this 
version is quite different and more expansive than the 2001 bill.
  The committee did hold a quickly thrown-together hearing on June 25 
in which Attorney General Holder himself appeared. The Attorney 
General, however, failed to point to one single serious incident in the 
past 5 years, when I asked him that question, where the types of crimes 
that are referred to in the bill, to give special Federal protection to 
select individuals, were not being prosecuted by State and local 
governments.
  Additionally, the Attorney General refused to say attacks on U.S. 
soldiers predicated on their membership in the military by, for 
example, a Muslim fundamentalist, could be considered a hate crime.
  It is baffling to me, given previous opposition and serious concerns 
which have been raised about this legislation, that the act, instead of 
being constrained, is actually expanded in a vague and awkward way. It 
focuses on the perception of what someone might have been thinking when 
they committed the crime and includes categories which are undefined 
and exceedingly broad, such as gender-related characteristics and 
gender identity. From questions that have been raised, these categories 
do not have clear meaning. During the course of debate on hate crimes 
legislation--a debate that started in 2001--amendments have been 
offered to also protect our military men and women, where it is 
unquestioned they have been targeted. Those amendments were rejected.
  Mr. President, I will briefly outline my opposition to the 
legislation in the following ways:
  The hate crimes amendment is unwarranted, possibly unconstitutional--
certainly, I believe it is unconstitutional in certain parts--and it 
violates the basic principle of equal justice under the law. The hate 
crimes amendment to this bill has been said to cheapen the civil rights 
movement.
  When Congress passed the original civil rights statute in 1968, it 
criminalized violent and discriminatory actions directed at individuals 
because of race, color, religion, or national origin. There was, sadly, 
quite a substantial body of evidence that crimes were being committed 
against minorities and they were not being prosecuted. Section 245 that 
was then passed was never envisioned by Congress to be a hate crimes 
statute but one, rather, that would ensure access by minorities to 
specific activities legitimate to their freedom, such as enrolling in 
public schools, enjoying the benefit of programs administered by the 
State, or attending court as a juror.
  In 1968, care was taken to ensure that the underlying statute was 
carefully crafted and narrowly tailored to address the problem of 
access to ensure that criminal activity fell within the confines of the 
constitutional requirement that there be a Federal nexus with 
interstate commerce. The statute enumerates six instances in which a 
crime could be charged. That statute says this:

       Whoever, whether or not acting under the color of law, by 
     force or threat of force willfully injures, intimidates or 
     interferes with, or attempts to injure, intimidate or 
     interfere with any person because of his race, color, 
     religion or national origin and because he is or has been. . 
     . .

  And then it lists specific areas that would encompass a criminal 
offense.

       (a) enrolling in or attending any public school or public 
     college.

  So if anyone who was attempting to attend a public school or college 
was interfered with or intimidated because of their race, color, 
religion or national origin, that would be the offense.

       (b) participating in or enjoying any benefit, service, 
     privilege, program, facility or activity provided or 
     administered by any State or subdivision thereof.

  In other words, you can go to the city hall, you can go to the health 
department, and you cannot be discriminated against because of your 
race or background.
  Unfortunately, I have to say there were areas of the country--
particularly in my area of the South--where that was not so. People 
were being unfairly treated. In fact, in some other areas of the 
country also. I believe great care was taken with that act because, as 
I said, there was strong evidence to suggest that a Federal expansion 
of criminal law would be appropriate to deal with it.
  So the history of civil rights violations caused and fully justified 
Congress's passage of this statute. There was direct evidence, for 
example, that African Americans were being denied the right to vote or 
intimidated at voting precincts without State and local law enforcement 
protecting them. There was much evidence, sadly, that other rights of 
African Americans were not being protected.
  But that is not the case with this amendment, and I will talk about 
that in a minute. Gays and lesbians have not been denied basic access 
to things such as health or schooling or to the ballot box. They openly 
are able to advocate their positions today, which I think is certainly 
healthy, and have no difficulty in approaching government officials at 
whatever level.
  When Eric Holder testified a few weeks ago before the Judiciary 
Committee, I asked him point-blank for direct evidence that hate crimes 
against individuals over the past 5 years, because of their sexual 
orientation or otherwise, were not being prosecuted

[[Page 18259]]

by local authorities. Instead of answering the question, he referred me 
to four cases in his written testimony which he had delivered to the 
committee. Let me make the number clear as strong evidence that these 
cases are being prosecuted.
  The Attorney General could not come up with 4,000 cases or 400 or 40 
cases. He only named four cases in 5 years. So we took a look at those 
four cases he cited in his testimony, and this is what we found.
  In one case, Joseph and Georgia Silva assaulted an Indian-American 
couple on the beach. Although there was evidence that racial and ethnic 
slurs were used during the altercation, a California El Dorado County 
judge ruled that prosecutors failed to produce sufficient evidence that 
the alleged assault was motivated by racial prejudice. The prosecutor 
had pursued a hate crimes conviction, including charging Silva with a 
felony assault, punishable by up to 3 years in prison. The evidence, 
according to the judge, was that racial slurs were used in the heat of 
anger. There was no evidence the attack was initiated because of 
ethnicity.
  Both Joseph and Georgia Silva were convicted of assault, the basic 
crime that they committed, and Joseph Silva was sentenced to 6 months 
in prison and 3 months probation, while Georgia was sentenced to 1 year 
in prison.
  So the question is, was there an important Federal right left 
unaddressed that needed to be vindicated by charging this couple again 
for the crime arising from that assault? In other words, that is what 
this bill does. It says if we are unhappy with the result in State 
court under a select group of crimes, the Federal Government can try 
the case again.
  You might say, well, there is a double jeopardy clause in the 
Constitution; you can't be tried twice for the same crime. Good; if you 
asked that question, you get an A in constitutional law. However, there 
is an answer. It has long been established that the States are 
sovereign and the Federal Government is sovereign. So an individual can 
be tried by two separate sovereigns without implicating the double 
jeopardy clause of the Constitution. However, we have always understood 
that ought not to be done lightly. It ought not be done without a real 
justification because it violates the spirit of the double jeopardy 
clause of the Constitution.
  Attorney General Holder also cited a 2003 case in Holtsville, NY. In 
that case, three White men, while using racial slurs, assaulted a group 
of Latino teenagers as they entered a Chili's restaurant. One of the 
three defendants entered a guilty plea for his involvement in the 
assault and was sentenced to 15 months in prison. The other two 
defendants proceeded to trial and were acquitted because the jury 
apparently concluded there was insufficient evidence to prove beyond a 
reasonable doubt that the offense that occurred was to deny the victims 
access to the restaurant. So they had a trial, and one was convicted 
and two were not.
  The Attorney General cited a South Carolina case where a gay man was 
assaulted after leaving a bar. During the altercation, he fell and he 
suffered a fatal strike to the head from the concrete. Stephen Miller 
was convicted of involuntary manslaughter and sentenced to 5 years in 
prison.
  Finally, the Attorney General cited a case from here in the District 
of Columbia where a transgender prostitute was murdered. Apparently, 
after Derrick Lewis discovered that the prostitute he had picked up in 
his automobile was not female, and the prostitute refused to get out of 
his car, an altercation of some kind occurred--an argument--and he had 
a gun and shot and killed this transgender individual. He eventually 
pled guilty, gave a full statement of what happened, and was sentenced 
to 10 years in prison. The evidence showed they had begun fighting and 
that is when he pulled the gun and shot him. He said the individual 
would not get out of the car.
  Well, those are not insignificant crimes, but I can just advise my 
colleagues, if we just pause one moment and think, we know that at this 
very moment thousands, maybe 10,000 or more trials are ongoing in State 
and local courts all over America, and they do not always end as people 
would like them to end. What this bill does basically is it provides an 
opportunity for the Federal Government to pick and choose certain 
crimes they want to prosecute again to get the kind of justice they 
think might be likely. That is a broad power that we give to the 
Attorney General and a broad statute I don't believe is compelled by 
the facts that are happening in America today.
  When my staff followed up with the Office of the Attorney General to 
see why they listed just these cases, the response wasn't that State 
and local law enforcement were not doing their jobs but that the 
Attorney General believed the cases were under prosecuted. Citing four 
cases over 5 years as being underprosecuted is not the kind of evidence 
needed to justify the passage of such an expansive new piece of 
legislation that injects Federal prosecutors in areas of crime not 
heretofore occurring.
  After the Judiciary hearing, both Senator Coburn and I sent followup 
questions to the Attorney General to provide him an additional 
opportunity to demonstrate that the bill was necessary because of under 
prosecution, as he had testified. Senator Coburn asked this question:

       Precisely how many hate crimes is the Justice Department 
     aware of that have gone unprosecuted at the State and local 
     level?

  This is the answer we got from the U.S. Attorney General:

       The Department believes that our partners at all levels of 
     law enforcement share our commitment to effective hate crimes 
     enforcement. The Department does not have access to precise 
     statistics of hate crimes that have gone unprosecuted at the 
     State and local level, and we are unaware of any source for 
     such comprehensive information of unprosecuted offenses 
     generally. Federal jurisdiction over the violent bias-
     motivated offenses covered under S. 909 is needed as a 
     backstop for State and local law enforcement, to ensure that 
     justice is done in every case.

  So he is suggesting that, in a select group of cases that are on the 
front burner today, the Attorney General needs this legislation--S. 
909, which has now been attached to the Defense bill--as a backstop for 
State and local law enforcement to ensure that justice is done in every 
case.
  Well, there are many prosecutorial and jury decisions that are made 
in State courts every day with which one could disagree. The question 
is whether the Federal Government will be empowered to ensure justice 
is done in every case.
  I just want to share the reality of the world with my friends here, 
that anyone, I guess, can conclude that a case didn't end justly for 
them. One distinguished jurist is famously quoted as saying, ``To speak 
of justice is the equivalent of pounding the table. It just adds an 
element of emotion to the discussion.'' But whatever we mean by that 
word, it basically means the Attorney General gets to decide whatever 
he wants to do. I am not sure this is good legislation. I think 
legislation ought to be crisp and clear and set forth criteria by which 
a prosecution occurs or does not occur, leaving not so much broad 
discretion among the prosecutorial authorities.
  I submitted, after Senator Coburn--or at the same time, really--a 
similar question because I believed he had not been responsive to my 
question, and I asked this about our colleague, referring to Senator 
Hatch--of course a former chairman of the Judiciary Committee and who 
has worked on this issue for a number of years--and my question is 
this:

       Senator Hatch in the past has offered a complete substitute 
     to similar legislation, which would require that a study be 
     conducted to prove that there is an actual problem with hate 
     crimes not being prosecuted. Do not give me a general 
     response that there are some problems out there. I would like 
     you to provide the Committee with an exact and precise number 
     of hate crimes the Justice Department is aware of which have 
     gone unprosecuted at the State and local level. Please detail 
     every example you or anyone in the Department of Justice is 
     aware of where no prosecutorial effort took place.

  This was the answer we got:

       The Department is unable to provide an exact number of 
     cases in which State, local or tribal jurisdictions have 
     failed to prosecute hate crimes because we are not aware of 
     any such compilation of data.


[[Page 18260]]


  Senator Hatch has been offering this amendment for a study for a 
decade.
  The Attorney General goes on to say:

       When the Department receives complaints it clearly lacks 
     jurisdiction to prosecute, these matters generally are never 
     opened as investigations. . . .

  Let me just say, if this legislation is passed it will have one 
dramatic, undiscussed impact. Federal law enforcement agents--and there 
are not many. You may have a city with 300 police officers in it and 10 
FBI agents, another hundred sheriffs' deputies, another number of State 
officers. Now huge numbers of crimes will be coming across the desk of 
the FBI, which has terrorism, white-collar crime, bank fraud which they 
need to be working on today, violent crimes and drug smuggling. Now 
they are going to have to review hundreds of complaints about cases 
they had not heretofore had jurisdiction of and did not have to review. 
I just raise that point as an aside.
  Based on the Attorney General's response, I conclude that the bottom 
line is there is nowhere near the real evidence needed to justify this 
legislation. No one in this body has produced the evidence, and the 
Attorney General of the United States, who is promoting the bill, has 
not produced any. Attorney General Holder's response, instead of 
demonstrating the need for hate crimes legislation as written, provides 
verification that it is not necessary, and it raises a question of 
whether this is driven by political interests at this time. It is easy 
to complain that anybody who opposes a hate crimes bill favors hate. 
That is not a fair charge. I think most of our colleagues fully 
understand that. But politically that is the suggestion some have made 
when this legislation has been objected to by people with very valid 
concerns.
  As a matter of fact, one of the studies heavily relied on by the 
Attorney General in support of this bill is a 2008 report published by 
the National Coalition of Anti-Violence Programs, which is composed 
primarily of lesbian, gay, bisexual, and transgender groups. They have 
every right to do those studies and present them, but it is a coalition 
clearly with a vested interest in the legislation, and it should be 
examined carefully. The Attorney General had to rely on these types of 
reports because crime statistics do not support the notion that the 
incidence of hate crimes has increased. Even though we are doing a 
better job of reporting those today, still over the past 10 years the 
number is down, down slightly, even though population is up in our 
country.
  Furthermore, in a rushed attempt to provide answers to the committee 
prior to this amendment being filed, the Department seemed to put 
little thought into their responses to our questions. As a matter of 
fact, it appears the Attorney General didn't think the issue important 
enough to answer them himself. He let his staff people answer, when he 
was the one who appeared before the committee and we were following up 
on his personal testimony.
  A number of arguments and statements have been made, including those 
by the Attorney General, that there are quite a few of these incidents, 
tens of thousands of these incidents over the last number of years. But 
overwhelmingly these despicable incidents are of vandalism, many by 
juveniles. Let me make clear that even those incidents are significant 
and deserve prosecution and investigation and, where appropriate, stiff 
punishment. But let's look at the views of the members of the U.S. 
Commission on Civil Rights, our own U.S. Civil Rights Commission, who 
have examined this legislation carefully. Six of its eight members 
signed a strong letter to the President and to the Judiciary Committee 
to oppose hate crimes legislation. Did I mean to say the Civil Rights 
Commission wrote in favor it? No. But to oppose it. Their letter, dated 
June 16--just last month--addressed to the Members of the Senate and 
the President, said this:

       We believe that the MSHCPA [Matthew Shepard Hate Crimes 
     Prevention Act] will do little good and a great deal of harm. 
     Its most important effect will be to allow Federal 
     authorities to reprosecute a broad category of defendants who 
     have already been acquitted by State juries, as in the Rodney 
     King and Crown Heights cases more than a decade ago. Due to 
     the exception for prosecution by ``dual sovereigns,'' [that 
     is the two sovereign entities] such double prosecutions 
     technically are not violations of the double jeopardy clause 
     of the U.S. Constitution. But they are very much a violation 
     of the spirit that drove the Framers of the Bill of Rights, 
     who never dreamed that Federal criminal jurisdiction would be 
     expanded to the point where an astonishing portion of crimes 
     are now both State and Federal offenses. We regard the broad 
     federalization of crime as a menace to civil liberties. There 
     is no better place to draw the line on that process than with 
     a bill that purports to protect civil rights.

  They go on to say:

       While the title of MSHCPA suggests that it will apply only 
     to ``hate crimes,'' the actual criminal prohibitions 
     contained in it do not require that the defendant be inspired 
     by hatred or ill will in order to convict. It is sufficient 
     if he acts ``because of'' someone's actual or perceived race, 
     color, religion, national origin, gender, sexual orientation, 
     gender identity or disability.

  I am quoting from the Civil Rights Commission letter.

       Rapists are seldom indifferent to the gender of their 
     victims. They are virtually always chosen ``because of'' 
     their gender. A robber might well steal only from women or 
     the disabled because, in general, they are less able to 
     defend themselves. Literally they [these victims] are chosen 
     because of their gender or disability.

  The letter goes on to state their belief that every rape in America 
would now be declared a crime under this bill because it is an action 
taken against someone because of their gender.
  Professor Gail Heriot, a member of the U.S. Commission on Civil 
Rights, testified at our June 25 hearing. She made clear that all rapes 
would be covered under the bill and that, indeed, this was intentional. 
She said:

       This wasn't just sloppy draftsmanship. The language was 
     chosen deliberately. Officials understandably wanted 
     something susceptible to broad construction, in part because 
     it makes prosecutions easier. As a staff member of the Senate 
     Judiciary Committee back in 1998, I had conversations with 
     the Department of Justice representatives. They repeatedly 
     refused to disclaim the view that all rape would be covered, 
     and resisted efforts to correct any ambiguity by redrafting 
     the language. They wanted a bill with broad sweep. The last 
     thing they wanted was to limit the scope of the statute's 
     reach by requiring that the defendant be motivated by ill 
     will toward the victim's group.

  I think that is a serious charge made by a member of the Civil Rights 
Commission about the purpose of the Department of Justice in supporting 
this act.
  I would note, it is an inevitable delight of prosecutors to have more 
and more power and more and more ability to prosecute criminals. That 
is what they do. They are wonderful people. I never enjoyed anything 
more than being a prosecutor, wearing a white hat every day to work and 
trying to vindicate decent people from criminal acts. But that is just 
a tendency of the prosecutorial mindset that we ought not to forget.
  The truth is, during the recent hate crimes hearing, no one who 
testified in favor of the bill could point to a single incident where, 
I think, a valid hate crime was not pursued or prosecuted by State and 
local law enforcement officers.
  In the latest statistics that are available, of the 2006 hate crimes 
reported in 2007, only nine were classified as murder or nonnegligent 
manslaughter. That is certainly nine too many. I think every one should 
be prosecuted. But no complaints have been raised that any of these 
were not vigorously or fairly prosecuted. Indeed, two-thirds of the 
offenses involved property defacement, such as graffiti and name-
calling. Missing from the analysis is any evidence that the crimes are 
not being prosecuted at the State and local level. Indeed, 45 of the 50 
States and the District of Columbia already have and enforce hate 
crimes laws. Although the language is broad and some could criticize 
it, these States have passed these bills, and they are able to enforce 
them.
  Statistics show that these hate crimes, even with better reporting, 
have decreased slightly over the years. Forty-four States have stiffer 
penalties for violence related to race, religion, or ethnicity, and 31 
States have tougher penalties on violence related to sexual 
orientation.
  The question arises, do we have a basis for this massive and historic

[[Page 18261]]

change in Federal enforcement of what have been State crimes?
  Perhaps Mr. Andrew Sullivan--an openly gay man who has pioneered the 
effort to have gays in the military and is a well known and an able 
writer, provides the answer. Mr. Sullivan had this to say about the 
legislation.

       The real reason for hate crime laws is not the defense of 
     human beings from crimes. There are already laws against 
     that--and Matthew Shepard's murderers were successfully 
     prosecuted to the fullest extent of the law in a State that 
     had no hate crime law at the time.
       The real reason for the invention of hate crimes was a hard 
     left critique of conventional liberal justice and the 
     emergence of special interest groups which need boutique 
     legislation to raise funds for their large staffs and 
     luxurious buildings. Just imagine how many direct mail pieces 
     have gone out explaining that without more money, more gay 
     human beings will be crucified on fences. It is very, very 
     powerful as a money-making tool, which may explain why the 
     largely symbolic Federal bill still has not passed (if it 
     passes, however, I'll keep a close eye on whether it is ever 
     used.)

  This is a gay man expressing his opinion. No doubt he takes these 
issues very seriously, and symbolism is important in our political 
world, but we need to be careful that statutes that become a permanent 
part of our criminal code are supported by evidence and principle.
  I do not think our focus here is to deal with symbolic legislation 
that is broad and can expand Federal criminal jurisdiction beyond its 
historic role and where the facts do not support the need. In other 
words, more narrowly tailored legislation consistent with a 
constitutional right could very well be something this Congress would 
want to pass. To pass legislation so extremely broad again could give 
Federal jurisdiction for the first time in history to every rape that 
occurs in America. It ought to be looked at with great care and ought 
not to be stuck onto a defense bill and moved forward, in my opinion.
  The Constitution endows Congress with limited and enumerated powers. 
There is no general police power in the Federal Government. So at this 
point, I wish to raise issues with the constitutionality of the hate 
crimes provision.

       Congress's power is limited to what it can regulate under 
     the Commerce Clause. The proposed legislation is based upon 
     the idea that a discrete crime in a local community may have 
     an impact on interstate commerce. This is the same theory 
     that was rejected in both U.S. vs. Lopez and U.S. vs. 
     Morrison, where the Supreme Court essentially ruled that 
     intrastate violent conduct does not impact commerce normally.

  Nat Hentoff, a well-respected noted civil rights and civil 
libertarian attorney and writer recently wrote about some 
constitutional concerns he has with the legislation. This is what he 
said:

       In the definitive constitutional analysis of James B. 
     Jacobs and researcher Kimberly Potter, it is documented in 
     ``Hate Crimes: Criminal Law and Identity Politics'' that in 
     ``Grimm v. Churchill the arresting officer was permitted to 
     testify that the defendant had a history of making racial 
     remarks. Similarly, in People v. Lampkin, the prosecution 
     presented as evidence racist statements the defendant had 
     uttered six years before the crime for which he was on 
     trial,'' as specifically relating to the offense.
       As for the 14th Amendment's essential requirement that no 
     person be denied ``the equal protection of the laws,'' there 
     is carved above the entrance to the Supreme Court the words 
     ``Equal Justice Under Law.''
       This legislation, certain to be passed by the Senate, now 
     it seems will come to the Supreme Court.

  And I am quoting Mr. Nat Hentoff, the well-known and respected civil 
libertarian civil rights attorney. He says this:

       When it comes before the Supreme Court, I hope the Justices 
     will look up at the carving as they go into the building. 
     They should also remember that the Fifth Amendment makes 
     clear: ``nor shall any person be subject for the same offence 
     to be twice put in jeopardy.''
       But the House hate crime bill allows defendants found 
     innocent of that offense in a state court to be tried again 
     in federal court because of insufficiently diligent 
     prosecutors; or, as Attorney General Holder says, when state 
     prosecutors claim lack of evidence. It must be tried again in 
     federal court. Imagine Holder as the state prosecutor in the 
     long early stages of a Duke University lacrosse rape case.
       What also appalls me, as the new federal bill races toward 
     a presidential signature, is that for many years, and now, 
     the American Civil Liberties Union approves ``hate crimes'' 
     prosecutions. I have long depended on the ACLU's staff of 
     constitutional warriors to act persistently against 
     government abuses of our founding documents. And these 
     attorneys and analysts have been especially valuable in 
     opposing the results of executive branch lunges against the 
     separation of powers in the Bush-Cheney years, and still 
     under Obama.

  Then he says this:

       Is there no non-politically correct ACLU lawyer or other 
     staff worker or anyone in the ACLU affiliates around the 
     country or any dues-paying member outraged enough to demand 
     of the ACLU's ruling circle to at last disavow this 
     corruption of the Constitution?

  That is Mr. Hentoff's view of it.
  So this hate crimes amendment is a substantial overreach by Congress, 
I do believe. It is not carefully crafted or narrowly tailored. Unlike 
the historic civil rights statute, it seeks to federalize the violent, 
noneconomic conduct that is local in nature and has little or no 
Federal nexus.
  The Supreme Court has held that violent conduct that does not target 
economic activity is among the types of crimes that have the least 
connection to Congress's commerce power. However, this is precisely the 
sort of violent, noneconomic conduct that this amendment would 
federalize.
  If this approach were permissible, it would put Congress on a path to 
rely on the Commerce Clause and legislate any criminal law it wants. 
When it comes to criminal law, Congress would no longer be a body of 
limited and enumerated powers but would have plenary power to 
criminalize any and all conduct that is already criminalized by the 
States, a clear violation of our historical policy of not taking over 
State and local law enforcement.
  There are still a lot of complaints over the drug laws aggressively 
prosecuted when I was a Federal prosecutor, and many think that was an 
overreach. When drugs come in, the vast majority from outside the 
country, they move as interstate commerce, and the courts have held 
that up.
  But there is still intellectual criticism and concern about it. But 
in this case, you do not have the kind of dramatic nexus, and you also 
lack the evidence to suggest those cases are not being effectively 
prosecuted. So the sponsors have also tried to ease constitutional 
concerns by citing the 13th, 14th and 15th amendments.
  The 13th amendment provides Congress with the limited authority to 
abolish ``all badges and incidents of slavery in the United States.'' I 
hope my colleagues are not seriously attempting to argue that 
assaulting someone because of their religious views or gender is 
tantamount to slavery.
  The 14th and 15th amendments apply only to State actions, and since 
we have already established that States are vigorously prosecuting 
these actions and not ignoring them, I do not think this is a valid 
approach.
  Finally, I would note that the legislation raises questions 
concerning the constitutional imperative that there be ``equal justice 
under law.'' Is there a legitimate, justifiable reason to punish one 
rape differently than another rape simply because someone decides the 
first rape was committed out of hate or actually because of the gender 
of the victim? I think the victims would say the same thing, the 
criminal should be punished to the fullest extent of the law.
  This legislation would add a different element to certain crimes, and 
I know, as a former prosecutor, make it more difficult and more 
expensive to obtain a conviction, especially when you have to prove an 
individual's thought process as an underlying element to the offense.
  This bill at bottom tries to distinguish between assaults by 
declaring if someone assaults and kills his girlfriend because she 
broke up with him it is not a Federal offense, but if he kills her 
because she claims she wanted to explore her sexual orientation and he 
became upset and killed her, that would be a Federal offense.
  Senator Hatch offered a complete substitute on Thursday night. It was 
rejected. His proposal would require that a study be conducted so 
actual evidence can be obtained to see if there

[[Page 18262]]

is a real serious problem with States not prosecuting these matters.
  For some reason, even though Senator Hatch has been trying to get it 
passed for quite a number of years, the study has never been conducted, 
and all proposals for such a study have been rejected. I fear it is 
because perhaps Mr. Sullivan got it right. It is not so much about the 
failure of States to prosecute these crimes but about an underlying 
idea to pass a symbolic piece of legislation.
  There is no good reason to pass such a broad piece of legislation. To 
pass it would be unwise. No one believes that individuals should be 
assaulted because of their beliefs, their gender or their sexual 
orientation. That type of behavior is unacceptable and should be 
prosecuted.
  It has been prosecuted. I am sure State and local law enforcement 
officers will continue to do so. I believe that if my colleagues would 
study the legislation and think about what they are doing, they would 
see that this is more unwise and the objections they have heard have 
far more weight than they had thought initially.
  It seems like a good idea. Who would want to be against a crime that 
says it wants to punish hate? But there are serious matters and 
constitutional issues, as I noted from the Civil Rights Commission, 
from the civil rights attorneys such as Mr. Nat Hentoff.
  I think, in truth, the Attorney General should have been more 
balanced in his testimony before the Judiciary Committee. He came 
pushing this legislation without listening or expressing any concern. 
But I do think he should have pointed out that it represents one of the 
largest expansions of Federal law enforcement in history. He should be 
the first to point out and express that concern. He should not allow 
politics to drive law in America.
  I know most of my colleagues think this is the right thing to do. I 
wish I had been able to participate more in the debate before it was a 
done deal the other night. I was involved at the same time, of course, 
with the confirmation process.
  Hopefully, we can watch this legislation come with some ideas that 
curtail its potential for abuse and make it better. But, in reality, I 
want my colleagues to know it is time for us in Congress to step back 
and question carefully any proposal to create new or further expand 
federal criminal jurisdiction that would encroach upon the historic 
powers of our State and local law enforcement to enforce the law in 
their jurisdiction.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I ask unanimous consent that the Senator from Virginia be 
recognized next as in morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (Mr. Levin assumed the Chair.)
  The PRESIDING OFFICER. The Senator from Virginia is recognized.


                          Sotomayor Nomination

  Mr. WARNER. Mr. President, I rise to speak in support of the 
nomination of Judge Sonia Sotomayor to serve on the Supreme Court of 
the United States.
  First, I would like to applaud Chairman Leahy and Ranking Member 
Sessions for conducting a successful confirmation hearing. The hearings 
lasted 4 days, 15 witnesses testified, and thousands of people attended 
the hearing in person.
  The topics of discussion ranged from executive privilege to property 
rights. In the end, the reviews were that the hearing was constructive 
and fair. At the same time, millions of Americans all across the 
country tuned in to the confirmation hearings on television to find out 
who Justice Sotomayor is.
  As a U.S. Senator, I had the privilege of meeting with Judge 
Sotomayor in person and can say that the American people say what I 
witnessed firsthand, an individual with extensive judicial experience, 
a clear understanding of the law, and the judicial temperament to be an 
excellent Supreme Court Justice. Judge Sotomayor's nomination is a 
historic moment for several reasons. With 17 years as a Federal 
district and appellate court judge, Judge Sotomayor has more judicial 
experience than anyone confirmed for the Court in the past 100 years. 
She is also part of a small group of judges who have been nominated to 
the Federal judiciary by Presidents of different parties: President 
George H.W. Bush and President Bill Clinton. With the addition of 
President Obama, she will become the first person nominated by three 
Presidents to serve on the Federal judiciary.
  Judge Sotomayor is also the first Hispanic American nominated to 
serve on the Supreme Court in its 220-year history.
  Her family immigrated to the United States from Puerto Rico. The 
family didn't have a lot of money, but her mother valued education and 
hard work. Judge Sotomayor would go on to Princeton and Yale Law 
School, where she excelled academically. Judge Sotomayor did not have 
the benefit of a family name or wealth but she had ambition. She proved 
that one can improve their life in a single generation. I am confident 
many young men and women of all backgrounds are inspired by her 
example. Perhaps they will hit the books a little harder, practice 
their craft a little more, and not give up on reaching their own 
individual dreams.
  As Governor of Virginia and now U.S. Senator, I have carried out the 
responsibility of selecting, vetting, and nominating individuals to 
serve on the bench. It is an enormous responsibility, because the 
decisions judges make affect people's lives. Much has been said about 
Judge Sotomayor's judicial philosophy. In testimony before the Senate 
Judiciary Committee, she made clear to me that she fully understands 
the role of a judge. In her own words, her judicial philosophy is 
simple: ``Fidelity to the law'' and a ``rigorous commitment to 
interpreting the Constitution according to its terms.''
  Independent institutions can attest to this. The American Bar 
Association unanimously found Judge Sotomayor to be highly qualified, 
its highest rating. A number of other nonpartisan groups have found her 
constitutional decisions to be solidly in the mainstream. Judge 
Sotomayor's commitment to public service, extensive judicial 
experience, and fidelity to the law make her an excellent candidate to 
serve on the Supreme Court of the United States. I look forward to 
casting my vote in support of Judge Sotomayor and encourage my 
colleagues on both sides of the aisle to do the same.
  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. KYL. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mr. Warner). Without objection, it is so 
ordered.


                          Six Months in Office

  Mr. KYL. Mr. President, today marks President Obama's sixth month in 
office. The President began his term with an enormous amount of 
goodwill, high approval ratings and pledges to work in a bipartisan 
way. In the earliest days he reached out in a bipartisan way to secure 
passage of administration priorities and Republicans reciprocated. For 
example, I joined the President in supporting the release of the second 
tranche of financial stabilization money. But the administration has 
become increasingly partisan in the months since then. The 
effectiveness of the President's policies is increasingly questioned by 
the American people as spending and deficits have skyrocketed. 
Unemployment has gotten much worse since he took office, and America's 
interests abroad have been challenged with little response.
  Let me first speak to the issue of domestic policy, spending and 
debt. On domestic policy, President Obama's first 6 months in office 
have been characterized by unprecedented spending and debt 
accumulation. In 6 months, President Obama has put the country on a 
course to spend more and accrue more debt than any President in 
history; in fact, to take on more debt than all of the other Presidents 
in the history of the United States combined.

[[Page 18263]]

The President has at the same time exercised the power of government in 
unprecedented ways. The President knows this is greatly concerning to 
the American people. So on June 16, President Obama told an 
interviewer:

       I actually would like to see a relatively light touch when 
     it comes to government.

  But when it comes to the size and scope of the government, nothing 
President Obama has done in his first 6 months resembles a light touch. 
Time after time, he has pushed government intervention and takeovers 
and huge spending increases as the preferred solutions to various 
problems, whether it is to stimulate the economy, reform health care, 
or bail out bankrupt car companies.
  The President cites the economic downturn as a reason to clear the 
way for more and more new spending, but we still don't have any 
evidence that this record-breaking spending has actually helped the 
economy. Take the $1.2 trillion so-called stimulus bill. In pitching 
the stimulus to the Nation, the President pledged that ``a new wave of 
innovation, activity, and construction would be unleashed all across 
America.'' The administration also said it would help keep unemployment 
from topping 8 percent and ``save or create 3.5 million new jobs.'' He 
insisted Congress rush the bill through despite concerns about the cost 
and the Government's ability to disburse funds in a timely way.
  As we now know, since President Obama signed the legislation, far 
from stopping unemployment from exceeding 8 percent, unemployment has 
now reached over 9.5 percent and is headed to at least 10 percent. The 
economy has lost over 2 million jobs, including 433,000 last month. 
According to the White House Web site, which tracks stimulus spending, 
only 7.68 percent of the stimulus money has been funneled into the 
economy.
  In an article for the Washington Post, Michael Gerson explains why 
the stimulus is having such a negligible effect:

       Pouring money into the economy through a thirst sponge of 
     federal programs . . . is slow and inefficient.

  Just as Senate Republicans argued when we opposed this plan.
  The nonpartisan Congressional Budget Office projects less than a 
quarter of the funds earmarked for this bill will be spent by the end 
of this year, with the lion's share being distributed over the next 3 
years, by which time, hopefully, the recession will be over. If that is 
the case, the administration will no longer have a justification for 
this stimulus spending. But taxpayers will still be on the hook for the 
hundreds of billions of dollars the government will have to borrow to 
pay for it.
  Thanks to a new report by Senator Coburn, we know more about some of 
these wasteful projects that have been funded by the so-called stimulus 
or are awaiting funds, including a $23.5 million turtle tunnel in 
Florida, a $550,000 skateboard park in Rhode Island, and even $40,000 
to give someone a job in North Carolina to lobby for more stimulus 
funds. That is just a handful of the projects approved so far.
  So what has happened to the President's plan to spend wisely? That 
brings us to the budget. The President's $3.4 trillion 10-year budget 
also defies the idea of a light touch. In an editorial about the 
budget, the Wall Street Journal wrote:

       With [his] fiscal 2010 budget proposal, President Obama is 
     attempting not merely to expand the role of the federal 
     government, but to put it in such a dominant position that 
     its power can never be rolled back.

  So the spending is the means to an end, a bigger government that can 
never be tamed. To understand the magnitude of the budget the President 
proposed, consider: Federal spending will skyrocket to 27.7 percent of 
the gross domestic product in 2009. That is up from 21 percent of GDP 
in 2008. According to the CBO's monthly budget review, for the first 9 
months of the 2009 fiscal year, outlays are 21 percent higher than they 
were in the first three quarters of 2008, though revenues have fallen 
by 18 percent. Federal spending will make up a greater share of the 
economy in 2009 than in any year since 1945, when the country was still 
fighting World War II. It is also a greater share of the economy than 
during the Vietnam war or during the recessions of 1974-1975 or 1981-
1982.
  The debt created by his budget will be greater than the combined debt 
created by the budgets of each of the previous 43 Presidents, all the 
way back to President Washington. By the end of this fiscal year, our 
publicly held debt will amount to roughly 57 percent of the gross 
domestic product and deficits of $1 trillion every year are predicted 
for the next decade. This will drive the debt to 82 percent of the 
gross domestic product by the year 2019. Interest payments on this debt 
will soon make up the single largest item in the debt. In fact, as for 
the interest cost, beginning in 2012 and every year thereafter, the 
government will spend more than $1 billion a day on finance charges to 
holders of U.S. debt. That means Federal spending on finance charges 
for the government's debt will be a whopping $5,700 per household in 
2019.
  Americans are weary of this kind of debt, to say the least, and many 
don't think it is fair for Washington to overspend and then simply pass 
the bill on to our children and grandchildren.
  These levels of spending and debt would be reckless in the best of 
economic times, and they are not consistent with President Obama's 
pledge for a new era of fiscal responsibility.
  Let's turn to health care.
  The American people--and those of us in Congress--want health care 
reform. That is not in question. But President Obama is proposing a 
trillion-dollar health care program that would, according to the 
Congressional Budget Office, cause millions of Americans to lose their 
current care by providing an incentive to employers to drop their 
health care coverage.
  How is this consistent with the President's assurances that if 
Americans like their current insurance, they can keep it? Remember, 85 
percent of Americans have insurance and the vast majority of them like 
their coverage and they do not want to lose it.
  President Obama frames this huge new entitlement as a cost-saving, 
deficit-reducing measure. At a July 1 townhall meeting in Virginia, the 
President told participants:

       If we want to control our deficits, the only way for us to 
     do it is to control healthcare costs.

  But does anyone believe that creating a new trillion-dollar, 
Washington-run health care bureaucracy will reduce costs? When in 
history has a new government program ever reduced costs? Our two 
current government-run health care programs--Medicare and Medicaid--are 
both on financially unsustainable paths. Medicare alone has a $38 
trillion unfunded liability over the next 75 years and is in urgent 
need of reform.
  Some of the projected revenue for the President's plan comes from 
cuts in Medicare. How is it fair to cut seniors' care to pay for a new 
government-dominated system for nonseniors, especially since Medicare 
is already in financial trouble? This would ultimately lead to 
shortages, rationing, and the elimination of private plan choices--
something our seniors rightly fear.
  It does not make much sense to strip funds from those already 
participating in government health care and to then use the savings for 
the creation of a massive new government health care system that few 
people want. Americans rightly worry the President's proposals will 
lead to the kind of denial and delay that happens in Canada and Great 
Britain.
  The President has even said:

       What I think the government can do is be an honest broker 
     in assessing and evaluating treatments.

  That can only mean one thing: denial and delay of care. In that kind 
of system, Federal boards would dictate what is best for you and me, if 
our health care is worth the money, and drive a wedge between doctors 
and patients.
  President Obama said recently:

       When you hear the naysayers claim that I am trying to bring 
     about government-run healthcare . . . know this, they are not 
     telling the truth.

  Well, maybe the President does not like the term ``government-run 
health care'' because it is not popular with Americans. But a plan 
administered by

[[Page 18264]]

the government, with prices and policies and treatments evaluated and 
dictated by Washington bureaucrats, is government-run health care, 
plain and simple.
  On another issue, cap and trade: One of the President's oft-repeated 
campaign pledges was he would not raise taxes on middle-income 
Americans. But the cap-and-trade legislation he and congressional 
Democrats are backing would do just that.
  On June 26, the House of Representatives passed cap-and-trade 
legislation described by Harvard University economist Martin Feldstein 
as ``a stealth strategy for a massive long-term tax increase.''
  The bill would implement a cap-and-trade program with the goal of 
reducing carbon dioxide emissions into the atmosphere. Cap-and-trade 
programs set strict mandatory limits on carbon emissions from various 
sources, such as electric utilities. Those sources would then either 
reduce carbon emissions or buy or trade emission allowances to achieve 
the required overall emissions reductions.
  The energy bill would not directly raise taxes on Americans; that is, 
they will not necessarily see a larger income tax bill at tax time in 
April. Rather, cap and trade increases the cost of living for everyone 
by raising energy costs and consumer prices for virtually everything. 
The effect would be the same as if the IRS sent them a tax bill.
  When the nonpartisan Congressional Budget Office analyzed the cost of 
a reduction of carbon emissions by 15 percent below 2005 levels, it 
estimated a family's cost of living would increase by $1,600.

       To put that $1,600 carbon tax in perspective--

  Martin Feldstein wrote--

     a typical family of four with earnings of $50,000 now pays an 
     income tax of about $3,000. The tax imposed by the cap-and-
     trade system is, therefore, equivalent to raising the 
     family's income tax by about 50 percent

  That is $1,600 that families will not be able to spend or save for 
the future.
  In addition to the tax increase, cap and trade would retard economic 
growth. The Heritage Foundation analyzed the proposal and concluded it 
would slow long-term growth by almost $10 trillion over the next 26 
years. Jobs would be lost. The Heritage Foundation's analysis, in fact, 
found that my State of Arizona would lose thousands of jobs.
  Proponents of the cap-and-trade proposal argue that job losses will 
be offset by the creation of new green jobs. But it is not at all 
certain those jobs will materialize, let alone make up for the jobs 
that are lost. In Spain, where government has invested heavily in green 
jobs, two jobs are lost for every green job created, according to 
Spanish economist Gabriel Calzada.
  Especially at a time when the economy is shaky and unemployment has 
reached a 25-year high, I am disappointed the President is promoting 
this legislation that not only would violate his campaign promise but 
would cost taxpayers billions of dollars and harm jobs.
  Let me now address some issues that are not directly domestic: free 
trade issues and problems with Iran and North Korea.
  First, on free trade: I am very disappointed that the administration 
has not made free trade a top priority. It has failed in its first 6 
months to take any action on bilateral trade pacts with Colombia, 
Panama, and South Korea--all of which were signed under President Bush. 
These trade deals would provide a boost to the U.S. economy and would 
also strengthen U.S. partnerships in two important regions. Not only 
has the administration failed to move swiftly on these trade 
agreements, it has also supported a number of damaging protectionist 
measures, such as a ``Buy American'' provision in the stimulus package.
  These policies have angered U.S. trading partners and hurt America's 
credibility as a promoter of free trade liberalization. They have 
already triggered retaliation. For example, after the administration 
canceled a trucking program with Mexico--a program opposed by the 
Teamsters Union--the Mexican Government responded by slapping tariffs 
on a range of American imports, including wheat, beans, beef, and rice. 
A global recession is no time in which to start a trade fight.
  With Iran: There are few regions of the world as volatile as the 
Middle East. Yet the administration's approach to Iran has been 
regrettable, to say the least.
  When prodemocracy demonstrations were being suppressed in Tehran, the 
President offered barely a word of support for the people putting their 
lives on the line for their freedom.
  Iranian people were met with violence after they took to the streets 
to peacefully protest the validity of Iran's Presidential election in 
June to declare their support for free elections and oppose Iran's 
oppressive police state.
  The President likes to say: Words matter. Very true. But his initial 
statement referring to ``deep concerns about the election'' failed to 
condemn the Iranian theocracy and lacked moral fortitude. And even as 
pressure rose on the President to take a stronger stand, he declined to 
provide the leadership the world expects from America, the standard 
bearer for freedom and democracy.
  As the Weekly Standard recently editorialized:

       Since June 12, [President Obama has] done nothing to help 
     those Iranians who have been seeking, in the words of Thomas 
     Jefferson, `` . . . to assume the blessings and security of 
     self-government.''

  Explaining his reticence, the President said:

       It's not productive, given the history of U.S.-Iranian 
     relations to be seen as meddling--the U.S. president meddling 
     in Iranian elections.

  The United States should be lending full-throated voice to the 
democratic aspirations of the Iranian people, while seeking to impose 
sanctions on their oppressors. It is not meddling for the world's 
oldest and greatest democracy to stand with them.
  The administration's Iranian policy was flawed from the beginning. It 
came into office with the idea that it could negotiate a ``grand 
bargain'' with the mullahs on Iran's nuclear program and would meet 
with its rogue leader without preconditions. With the mullah's 
repression of dissent following Iran's flawed elections, that has all 
gone by the boards. Of course, it was always destined to fail.
  Was it ever realistic to believe this is a government with which we 
can successfully negotiate--a government that sponsors terrorism and 
murders peaceful student protesters and does not even have the mandate 
of its own people? What do we think we can give this government more 
than it wants a nuclear weapon?
  What is more, what message do we send to the Iranian people, many of 
whom have been arrested, tortured, and had family members killed, by 
negotiating with this regime while it robs its own people of their 
fundamental rights? I do not believe the United States can deal in good 
faith with a regime that so violently suppresses its own citizens. I 
hope the President will come to agree.
  With regard to North Korea, the administration's reaction to North 
Korea's recent activity is also of concern. As Pyongyang prepares for 
the transition of power from Kim Jong Il to his son Kim Jong Un, the 
regime's behavior has become increasingly belligerent and 
unpredictable.
  North Korea has pulled out of the six-party negotiations, restarted 
its nuclear program, test launched several ballistic missiles, and 
conducted a suspected underground nuclear test. The regime even 
declared that it has now abandoned the armistice that brought a cease-
fire to the Korean war.
  What has the Obama administration done in response to this threat to 
the security of other nations in the region and indeed to the very 
security of the United States? The answer is disappointing. It has cut 
missile defense.
  The President's budget cut the Missile Defense Agency's budget for 
fiscal year 2010 by $1.2 billion and decreased the planned number of 
Ground-Based Interceptor missiles in Alaska from 44 to 30. These 
proposals amount to almost a 15-percent cut in the Missile Defense 
Agency's budget and a major reduction in our missile defense 
portfolio--at the very moment we should be increasing our capability to 
defend ourselves and our allies from the North Korean threat.

[[Page 18265]]

  Finally, a word about the prison at Guantanamo Bay. I think this is 
important in evaluating the first 6 months of this administration 
because one of the very first acts of the President, after he was 
inaugurated 6 months ago, was his self-imposed deadline to close the 
facility at Guantanamo within 1 year.
  A majority of Americans strongly oppose the closure of Guantanamo. 
Congress has refused to support President Obama's arbitrary deadline to 
close the facility without a plan, for example, showing where he will 
relocate the terrorists. The administration has convinced Palau and 
Bermuda to take a few detainees, but this is not much of a solution if 
the President is determined to close the facility in just another 6 
months. Where will the rest of the detainees still housed at Guantanamo 
Bay go? We still do not know.
  Ultimately, the debate over Guantanamo has become a debate over 
geography. Both the new Attorney General and the new Solicitor General 
have endorsed the government's right to detain suspected terrorists 
indefinitely. Whether we can detain them at Guantanamo or at prisons on 
U.S. soil does not change the fundamental reality that this 
administration, similar to its predecessor, will be holding certain 
individuals without trial.
  We have been told that Guantanamo must be closed for symbolic 
reasons. But America should never make national security decisions 
based on symbolisms--or on false moral arguments.
  In conclusion, on the campaign trail and after his election, 
President Obama repeatedly promised ``change we can believe in'' and 
the end of partisan politics in Washington. He pledged to bring 
Republicans and Democrats together.
  On election night, he said:

       Let us resist the temptation to fall back on . . . 
     partisanship.

  But partisan politics looms larger than ever. Congress is urged to 
rush costly legislation through, despite frequent Republican concerns 
about the pricetag and the efficacy of the legislation. Indeed, the 
President's budget and stimulus both passed mainly on party lines.
  As Michael Barone recently wrote, the President:

       Brings [to Washington] the assumption that there will 
     always be a bounteous private sector that can be plundered on 
     behalf of political favorites. Hence, the takeover of 
     Chrysler and GM to bail out the United Auto Workers union.

  Six months later, President Obama continues to take unnecessary jabs 
at his predecessor. On his promise for change, more government debt, 
government bailouts, and large transfers of the economy from the 
private to the public sector are not what Americans are looking for.
  Americans want the President and Congress to support the private 
sector to help the economy get back on track, without tidal waves of 
spending, debt, and new taxes. They want real health care reform 
without a government takeover, and they want the President to lead us 
in this dangerous world, acknowledging the harsh reality that not every 
rogue regime will respond to smooth talk.
  In the next 6 months, and beyond, I hope the President will take a 
more sensible and, indeed, more bipartisan course so we can all 
accomplish what the American people seek.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as in 
morning business and that Senator Kaufman of Delaware be recognized 
after I have concluded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Thank you very much.
  Mr. President, I thank the minority whip for his statement on the 
floor. I would like to suggest I see things a little differently and 
suggest there are a couple items I would like to speak to.
  First, on Guantanamo:
  President Obama took office and realized we had a serious problem in 
Guantanamo Bay. It is a safe and secure facility, but it has become a 
recruiting tool for terrorists around the world. That is not just his 
conclusion; it is the conclusion of people I respect very much. Among 
those who called for the closing of Guantanamo include the following: 
GEN Colin L. Powell, former Chairman of the Joint Chiefs of Staff and 
Secretary of State under President George W. Bush; Republican Senators 
John McCain and Lindsey Graham; former Secretaries of State James 
Baker, Henry Kissinger, and Condoleezza Rice; Defense Secretary Robert 
Gates, who served President Bush and President Obama; ADM Mike Mullen, 
Chairman of the Joint Chiefs of Staff; and GEN David Petraeus.
  These are not politicians, these are people who represent both sides 
of the political aisle--Democrat and Republican--who have concluded 
that keeping Guantanamo open, unfortunately, is going to continue to 
give encouragement to the recruitment of terrorists around the world.
  President Obama announced that we should start to close Guantanamo, 
we should start deciding the fate of each of these prisoners, and it is 
high time we do.
  Under President George W. Bush, hundreds of Guantanamo Bay detainees 
were released. They were arrested, incarcerated, questioned, and 
released, no charges against them. It was accepted. We made mistakes on 
the battlefield. People came up collecting bounties for turning in 
prisoners who turned out not to be dangerous. These people were 
released. The overwhelming majority of these people didn't cause any 
trouble beyond that. Some did. That is a fact. I will not ignore it.
  Now comes the Republican side of the aisle arguing that it is unsafe 
for us to transfer Guantanamo prisoners from Guantanamo to Federal 
prisons in the United States. I have heard the arguments. They say it 
is unsafe in my community of Springfield, IL, to have a convicted 
terrorist; that it is a threat to all the people, the 12.5 million 
people who live in Illinois, and they believe that is the case around 
the country. But if we look at the facts, that argument doesn't stand 
up.
  Today, in the prisons of the United States, the Federal prisons, we 
have 355 convicted terrorists currently incarcerated, being held safely 
and securely. They are no threat to our safety. In my hometown of 
Springfield, not far away, just in southern Illinois, maybe a little 
over 100 miles, is Marion Federal Penitentiary. I visited there several 
weeks ago and talked to the men and women who are the guards and those 
running the prison, and they said to me: Senator Durbin, send them 
here. We have dealt with terrorists. We have terrorists now on our cell 
block. We have had crime syndicates. We have had people from the 
Colombian drug cartels. We can handle them.
  The mayor of Marion, IL, went out and said to the people: Are you 
frightened if these detainees come to Marion?
  They said: No.
  These guards know how to do their job. This is a Federal penitentiary 
that is safe. So the fear that is being espoused and bred by the other 
side of the aisle about Guantanamo Bay is not well placed. What the 
President is doing systematically and carefully is evaluating each of 
these prisoners.
  I know of one who received notice from our government last year, 
after having been held for 6 years as a prisoner, that we had no case 
against him. No charges were going to be pursued. He is still a 
prisoner. We are looking for a place to put him. He is from the Gaza, a 
bottled up area. There is a question about whether he goes back there. 
But the fact is, we have no reason to believe we can convict or 
prosecute this man for anything. He is being held. It will be his 
seventh year now. He came in at age 19. He may leave at age 26 or 27. 
His life is dramatically changed because, unfortunately, our early 
inclination that he was a danger to this country turned out not to be a 
basis for a crime that could be prosecuted. That is the reality.
  The President has addressed this issue. Just a few weeks ago he 
announced one of these detainees in Guantanamo Bay was finally going to 
face justice, and despite the protests of some on the other side of the 
aisle, he moved that prisoner to New York for a trial. It wasn't the 
first time the city

[[Page 18266]]

of New York has had the trial of a terrorist. It has happened before. 
They know how to hold these terrorists in jail during the course of the 
trial. We don't hear panic in the streets in New York over it. The only 
panic and fear we hear comes from the other side of the aisle in the 
Senate.
  The President is doing the right thing closing Guantanamo Bay and 
saying to the world: We will not engage in torture. We will close 
Guantanamo Bay. This is a new chapter and a new day for America. With 
this approach, we are closing down a recruiting tool for terrorists and 
opening the door for allies to come back to the side of the United 
States to join us in stopping the kind of extremism that led to the 
tragedy of 9/11.
  So I disagree with my colleague from Arizona who has argued that we 
shouldn't close Guantanamo Bay. I agree with GEN Colin L. Powell and 
other military leaders that closing it is in the best interests of the 
security of the United States.
  Senator Kyl initiated his remarks by noting that we have reached the 
6-month anniversary of the inauguration of President Obama. It is hard 
to imagine. It seems to have just been flying by if you are on the 
floor of the Senate with all of the activity and all of the business we 
have considered. But he made special notice of the stimulus bill.
  I wish to remind people what the President inherited when he took his 
oath of office 6 months ago. Our economy was losing on average 700,000 
jobs a month when President Obama took his oath of office. The growth 
rate was at a negative 6.3 percent, the worst since the 1982 recession. 
Home foreclosures, mortgage foreclosures were at record levels, and 
residential investment had fallen by more than 40 percent in just 18 
months. Banks were in crisis, freezing lending, and nearly $10 trillion 
in wealth had been lost in the stock market. Virtually all of us who 
had 401(k)s or savings involved in the stock market know exactly what 
happened to those savings. We lost a lot of value.
  As President Obama took office, this is what he inherited. He came to 
the Congress and said: We can't stand idly by. We have to do something. 
We have to try to energize this economy, create and save American jobs; 
give businesses and families a fighting chance. He asked for both sides 
of the aisle to cooperate.
  On the House side not a single Republican House Member would join the 
President in this effort, in this attempt at a bipartisan effort to 
deal with the economic situation in our country. On this side of the 
Rotunda, three Republican Senators stepped up and said they would work 
with the Democrats to try to find a way to help put our economy back on 
its feet--only three, despite the President's invitation for all of 
them to join in this conversation to try to find a compromise to work 
toward a solution to the problems we faced.
  At the end of the day, the bill was a $787 billion recovery and 
reinvestment bill to be spent over 2 years. We are now 4 months into 
that 2-year period--150 days, roughly, into that 2-year period--and 
Senators are coming to the Senate floor, as did the minority whip, and 
saying it has failed.
  Well, let's take a look and see what it has done. So far we have 
actually spent about $56 billion out of the $787 billion, a very small 
amount. We have obligated--which means we have promised to spend--up to 
$200 billion, 4 months into it. We are trying to address this carefully 
so taxpayers' funds are not wasted. But there are still those who voted 
against it initially who come to the Senate floor, as the previous 
Senator did, and say it was a failure; we shouldn't have done it.
  Several things should be noted. First, they had no alternative. They 
had no substitute. They had no option for the economy other than to 
stand idly by, take two Excedrin, try to take a nap, and hope it would 
be better in the morning. Not good enough.
  If we are going to deal with an economy with so many jobs lost, so 
many businesses failing, standing idly by waiting for the economy to 
work its way out would have been a disaster.
  This stimulus package from President Obama stopped what could have 
been the collapse of the U.S. economy and the global economy. We still 
have a long way to go. We are not out of this recession, but it could 
have been worse. For those who say we shouldn't have done it, let me 
tell my colleagues: Over 40 percent of the money in the stimulus 
package went back to tax breaks for working families in America. 
Ninety-five percent of working families across America will see the 
benefits of the Making Work Pay tax credit in their paychecks. Those 
dealing with job loss, unemployed people, got an additional $25 a week. 
It doesn't sound like much unless you have no other source of income.
  I take it from their statements those on the other side of the aisle 
think the tax breaks for working families should not have been enacted. 
They oppose the unemployment compensation benefit increases.
  We also gave a helping hand to unemployed families to keep health 
insurance for their kids and their families. That was part of the 
stimulus package, as well as money for nutrition assistance, food 
stamps for some of these unemployed families. So when the other side of 
the aisle says we shouldn't have done this, they are basically saying 
we shouldn't have helped these unemployed families and a lot of other 
families across America. I think it was the right thing to do.
  We are making investments in the infrastructure of America as well. 
Basically, we are trying to make an investment that will give us a 
recovery in jobs. We were losing about 25,000 jobs a day when this 
initially hit. Now we are trying to build back from that to create and 
save jobs across America. In my home State of Illinois, it means 
infrastructure projects, transportation infrastructure projects, and 
many others. So we are just beginning. We are moving in the right 
direction. We have stopped the worst from occurring in the economy. We 
are going to see a turnaround, I hope, sooner rather than later.
  The President's words warrant repeating: This is not going to happen 
overnight, and we have to be open to the idea that it is going to take 
some time for us to make the kind of recovery we absolutely need.
  Secondly, the Senator from Arizona talked about health care reform. 
Republican after Republican has come to the Senate floor--not all of 
them but many of them--and criticized the idea of health care reform, 
but they are ignoring the obvious. We have a serious problem with 
health care in America. We are spending twice as much per person as any 
nation on Earth for health care, and the results--the health care 
results don't show it. Many times countries spend far less, have far 
better outcomes in terms of curing diseases and life expectancy.
  So we should ask the hard questions: Shouldn't our money be better 
spent? Shouldn't it be more effectively spent? Then we take a look at 
what we face when it comes to health insurance premiums, and we find 
out that premiums over the last several years have been going up three 
times the increase in the average worker's wages in this country.
  We are falling further and further behind as the costs of health care 
go beyond the grasp of individual families and small businesses. So we 
have to tackle this, and the American people know we do. They 
understand this system is, unfortunately, out of control. They have 
called on us to fix what is broken and to preserve those parts of our 
system that are important.
  One of the things we want to make sure we do is to say: If you have a 
health insurance policy today you want to keep for your family or your 
business, you can keep it. Nothing we say or do in the law will change 
that. It is ultimately your decision.
  Secondly, we want to preserve the relationship between doctor and 
patient--the confidential relationship, the trust that has developed 
between them so that you can take a member of your family or yourself 
to a doctor and believe it is a confidential conversation and that 
doctor is giving the best advice possible for you. We want you to have 
that choice and make that decision.

[[Page 18267]]

  What we want to stop is the mistreatment of Americans and American 
families by health insurance companies. You know what I mean: If you 
happened to have had an illness last year and it becomes a preexisting 
condition this year and you find out your health insurance won't cover 
it, or if they are going to cover it but dramatically increase your 
premiums, in fact, they increase your premiums without notice or any 
kind of forewarning that it is going to occur, these sorts of things 
trouble people.
  The fact that their doctors have to get into a fight with health 
insurance clerks as to appropriate medical care and whether a person 
should be hospitalized; the fact that health insurance companies, 
private health insurance companies, have turned out to be some of the 
most profitable companies in America, even during the recession. All of 
these things are fair warning that if we don't do something about 
health care in this country, the costs are going to break the bank, not 
only for individuals, families, and businesses, but for governments at 
every single level.
  Today many Americans live in fear of the astronomical costs that will 
occur if they or their families experience a health care emergency. Two 
and a half Illinoisans in my State of 12.5 million, more than one out 
of every five under the age of 65, is in a family who must spend more 
than 10 percent of its income on health care costs. Among those, one-
fourth of those are spending more than 25 percent of their income on 
health care costs.
  The other side says: Just leave well enough alone. This isn't ``well 
enough.'' For these families, this is intolerable and unsustainable. It 
is an astounding burden. It is 30 percent more people than the number 
facing the 25-percent payment than faced it 8 years ago.
  There is also concern on the other side about cap and trade. Well, 
cap and trade is a bill that has passed the House to address global 
warming, to try to assign a value to carbon in our economy. Just last 
week we had the CEOs of three major companies come speak to us: Duke 
Energy, one of the largest energy companies in America, DuPont, and 
Siemens.
  They favor the establishment of a cost for carbon. They said: Give us 
a transition period so that we can make our plants cleaner, our 
processes more energy effective, and we can meet that goal. We have the 
creativity to do it.
  So we can reduce global warming and reduce the pollution and our 
dependence on foreign oil. In the meantime, we will create new 
businesses; new products; new technology that will be energy efficient; 
new jobs, 21st-century jobs that will pay well, and jobs we can keep 
right here in America. There are those who oppose this and say leave it 
as it is. Our continued dependence on foreign oil should be a source of 
concern to every single person.
  I am also genuinely concerned that the world I am leaving my grandson 
might be a compromised world because of some of the bad environmental 
decisions that have been made by my generation. We have an opportunity 
to change that, to make this a cleaner planet, to show ourselves as 
good stewards of the Earth that God gave us, and we can work together 
in a bipartisan fashion to find a way to encourage the right conduct 
and discourage bad conduct when it comes to these energy issues. Some 
don't want to touch it; they just want to criticize it. At the end of 
the day, we won't be judged as having met our responsibility if we do 
nothing.
  I know Senator Kaufman is on the floor and will ask for recognition 
at this time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.


                    Apollo Moon Landing Anniversary

  Mr. KAUFMAN. Mr. President, I rise today, on the 40th anniversary of 
the Apollo 11 Moon landing, to highlight the importance of scientific 
research and development to America's economic recovery.
  Forty years ago, astronauts Neil Armstrong and Buzz Aldrin took the 
first human steps on the Moon. It was, needless to say, a historic 
moment for the United States and the world.
  Eight years prior, President John F. Kennedy declared before a joint 
session of the Congress that the United States ``should commit itself 
to achieving the goal, before the decade is out, of landing a man on 
the moon.'' Armstrong's famous words, ``One small step for man, one 
giant leap for mankind,'' marked the fulfillment of President Kennedy's 
goal. That momentous step signaled the coronation of the United States 
as the world leader in the sciences--a distinction we held through the 
rest of the 20th century but which is now in jeopardy.
  Make no mistake, the dawn of a renewed American powerhouse economy 
will not come without the same determination that propelled America's 
journey to the Moon. The key to America's success in a global economy 
will be the research, innovation, and hard work of our Nation's 
scientists and engineers.
  Americans at the time were inspired by a sense of patriotism and 
dedication to explore the universe following the Soviets' successful 
launch of the Sputnik satellite. The race to the Moon launched a 
substantial Federal investment in scientific and technological research 
and development. Students across the country were inspired to study 
engineering, and I, a working engineer at the time, was among those 
inspired.
  This extraordinary investment in research and development helped fuel 
the Nation's economic growth and left an indelible mark on our society. 
The discoveries and innovations of this time created new opportunities, 
industries, companies, products and services, and new ways of 
delivering old products and services more efficiently.
  Unfortunately, since that time our investments in research and 
development have not kept up. Other nations may soon outpace us in 
pursuit of the technological and scientific discoveries that will 
define this generation. If we hope to assert our country's preeminence 
in these fields, we must again invest significantly and responsibily in 
research and development.
  The vitality of our economy rests with our ability to be the world's 
leader in innovation. As we face some of our greatest economic 
challenges, the scientific and engineering community has the greatest 
potential to find avenues for what we need most: new, sustainable jobs. 
That is why I am pleased President Obama has set the goal to devote 
more than 3 percent of our economy to research and development--a feat 
that will require significant Federal as well as private investment. 
The American Recovery and Reinvestment Act has already provided over 
$20 billion of Federal funds to reach this target, and it is our job to 
see that these resources are spent wisely in order to achieve the 
maximum economic benefit.
  But the national goal is also about research and development 
investment by private industry, which the government can help foster 
with pro-innovation policies. We also need to encourage a new 
generation of engineers through education policies that emphasize 
science and math.
  I am confident that engineers will continue to foster the research 
and innovation that will lead America on the path to economic recovery 
and prosperity. They will help us build a clean energy economy, stay 
competitive in a globalizing world, and drive the real-world 
applications from our Nation's health and science research to improve 
our quality of life. Moreover, these discoveries and innovations will 
create millions of new jobs and invest in our future.
  Just before Apollo 11 returned to Earth, Armstrong concluded that:

       The responsibility for this flight lies first with history 
     and with the giants of science who have preceded this effort; 
     next, with the American people, who have, through their will, 
     indicated their desire; next, with 4 administrations and 
     their Congresses, for implementing that will; and then, with 
     the agency and industry teams that built our spacecraft, the 
     Saturn, the Columbia, the Eagle, and the little EMU, the 
     spacesuit and backpack that was our small spacecraft out on 
     the lunar surface.

  Just as we all came together in the race to the Moon over 40 years 
ago, we

[[Page 18268]]

need a renewed urgency for science and engineering. The American 
people, the administration, Congress, agencies, and industries must 
unite to support the research and development that will lead us not 
only to new frontiers in health, energy, technology, and security, but 
to new jobs and, ultimately, a sustainable economic recovery.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida is recognized.
  Mr. NELSON of Florida. Mr. President, four decades ago, in this 
extraordinary feat we have recently seen repeated over and over with 
the death of Walter Cronkite--we have seen that time he was 
broadcasting live when we landed on the Moon. That restrained TV anchor 
exhibited extraordinary excitement at the landing on the Moon. That is 
what the entire world felt at the time.
  I was a lieutenant in the Army and happened to be behind the Iron 
Curtain at the particular time we lifted off. I went to the Embassy in 
Budapest, Hungary, and asked if they had a TV so that we could see the 
launch. They said no, but to take your shortwave radio and go outside 
of the city on those hills and put your radio antenna up, and you can 
get the BBC, which we did. They cut into NASA control, and we three 
young Americans stood on that hill cheering as Apollo 11 lifted off.
  We fulfilled the human dream of boundless flight to another celestial 
body. Neil Armstrong promised us that it was ``one small step for man, 
one giant leap for mankind.'' It was to be the first step on our way to 
Mars and beyond, toward new knowledge of our universe and, perhaps, the 
discovery of other life.
  Yet today we are mired in a debate about the direction of our space 
program. We had a little victory last week when we had unanimously 
confirmed the new Administrator and Deputy Administrator of NASA. But 
now we are in this debate of where the space program should go. The 
answer should be obvious: Our thirst for knowledge requires that we 
explore the universe. I often say that this country is built on the 
character we have and that we are, by nature, explorers and 
adventurers. When this country was founded, our frontier was westward. 
Now that frontier is upward or inward. Space flight--as we continue in 
pushing that frontier upward, what does it do? It grows science and 
technology. It grows education. It grows the economy.
  Earlier today, I was on one of the network talk shows, and the whole 
idea was, what does it do for education? My goodness, look at the 
competitive edge America has in the global economy today from our 
superiority in math, science, technology, and engineering that occurred 
over four decades ago. Why? Because young people were so inspired by 
the extraordinary feats we were accomplishing in our space program that 
they wanted to go into engineering, math, science, and technology. That 
produced a generation of these people from whom we are continuing to 
reap the benefits.
  Of course, space flight improves and enriches life here on Earth. How 
does it do that? Well, if you think about it, four decades ago what we 
did was--if we were going to the Moon, we had to have highly reliable 
systems that were small in volume and light in weight. That led to the 
revolution in microminiaturization. For instance, my watch is a part of 
the space program. All of the microminiaturization was spawned off of 
that necessity to get things smaller, more reliable, and light in 
weight. That is just one example of how it enriches life here on Earth.
  If you think back to the visionary President we had who started this 
whole thing, President Kennedy said the opening of the vistas of space 
would bring high costs and grave dangers. Indeed, it did. But he said 
that ``this country was not built by those who rested.''
  So today, on this historic anniversary, let us not rest. Our 
President needs to make space exploration a national priority. Our 
Nation needs a clear goal, and that is a lunar base, humans on Mars, 
and then beyond. It is up to us to continue the greatest adventure. It 
is up to us to reach for the stars.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


  Amendments Nos. 1614, as Modified, 1615, as Modified, and 1617, as 
                                Modified

  Mr. LEVIN. Mr. President, I ask unanimous consent that it be in order 
for the Senate to consider en bloc the following amendments: amendments 
Nos. 1614, 1615, and 1617.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I now call up amendments Nos. 1614, 1615, and 1617 and ask 
that the amendments be modified with changes at the desk and that once 
modified, the amendments be agreed to, as modified, and the motions to 
reconsider be laid upon the table en bloc.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments, as modified, were agreed to, as follows:


                    AMENDMENT NO. 1614, as modified

(Purpose: To limit prosecutions until the Attorney General establishes 
          standards for the application of the death penalty)

       At the appropriate place, insert the following:

     SEC. __. LIMITATION ON PROSECUTIONS.

       (a) In General.--All prosecutions under section 249 of 
     title 18, United States Code, as added by this Act, shall be 
     undertaken pursuant to guideline, issued by the Attorney 
     General--
       (1) to guide the exercise of the discretion of Federal 
     prosecutors and the Attorney General in their decisions 
     whether to seek death sentences under such section when the 
     crime results in a loss of life; and
       (2) that identify with particularity the type facts of such 
     cases that will support the classification of individual 
     cases in term of their culpability and death eligibility as 
     low, medium, and high.
       (b) Requirements for Death Penalty.--If the Government 
     seeks a death sentence in crime under section 249 of title 
     18, United States Code, as added by this Act, that results in 
     a loss of life--
       (1) the Attorney General shall certify with particularity 
     in the information or indictment how the facts of the case 
     support the Government's judgment that the case is properly 
     classified among the cases involving a hate crime that 
     resulted in a victim's death;
       (2) the Attorney General shall document in a filing to the 
     court--
       (A) the facts of the crime (including date of offense and 
     arrest and location of the offense), charges, convictions, 
     and sentences of all state and Federal hate crimes (committed 
     before or after the effective date of this legislation) that 
     resulted in a loss of life and were known to the Assistant 
     United States Attorney or the Attorney General; and
       (B) the actual or perceived race, color, national origin, 
     ethnicity, religion, gender, sexual orientation, gender 
     identity, or disability of the defendant and all victims; and
       (3)(A) the court, either at the close of the guilt trial or 
     at the close of the penalty trial, shall conduct a 
     proportionality review in which it shall examine whether the 
     prosecutorial death seeking and death sentencing rates in 
     comparable cases in Federal prosecutions are both greater 
     than 50 percent; and
       (B) if the United States fails to satisfy the test under 
     subparagraph (A), by a preponderance of the evidence, the 
     court shall dismiss the Government's action seeking a death 
     sentence in the case.


                    AMENDMENT NO. 1615, as modified

               (Purpose: To authorize the death penalty)

       At the apporpriate place insert the following:

     title, or both, and shall be subject to the penalty of death 
     in accordance with chapter 228 (if death results from the 
     offense), if--
       ``(i) death results from the offense; or
       ``(ii) the offense includes kidnapping or an attempt to 
     kidnap, aggravated sexual abuse or an attempt to commit 
     aggravated sexual abuse, or an attempt to kill.
       ``(2) Offenses involving actual or perceived religion, 
     national origin, gender, sexual orientation, gender identity, 
     or disability.--
       ``(A) In general.--Whoever, whether or not acting under 
     color of law, in any circumstance described in subparagraph 
     (B) or paragraph (3), willfully causes bodily injury to any 
     person or, through the use of fire, a firearm, a dangerous 
     weapon, or an explosive or incendiary device, attempts to 
     cause bodily injury to any person, because of the actual or 
     perceived religion, national origin, gender, sexual 
     orientation, gender identity or disability of any person--

[[Page 18269]]

       ``(i) shall be imprisoned not more than 10 years, fined in 
     accordance with this title, or both; and
       ``(ii) shall be imprisoned for any term of years or for 
     life, fined in accordance with this title, or both, and shall 
     be subject to the penalty of death in accordance with chapter 
     228 (if death results from the offense), if--


                    AMENDMENT NO. 1617, as modified

   (Purpose: To require that hate-crimes offenses be identified and 
        prosecuted according to neutral and objective criteria)

       At the appropriate place, insert the following:

     SEC. ___. GUIDELINES FOR HATE-CRIMES OFFENSES.

       Section 249(a) of title 18, United States Code, as added by 
     section ___ of this Act, is amended by adding at the end the 
     following:
       ``(4) Guidelines.--All prosecutions conducted by the United 
     States under this section shall be undertaken pursuant to 
     guidelines issued by the Attorney General, or the designee of 
     the Attorney General, to be included in the United States 
     Attorneys' Manual that shall establish neutral and objective 
     criteria for determining whether a crime was committed 
     because of the actual or perceived status of any person.''.

  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)
 Mr. KENNEDY. Mr. President, Senator Sessions has introduced an 
amendment that would create two new death penalty eligible offenses for 
crimes under the Matthew Shepard Act. I stand firmly in opposition to 
any new legislation that would radically expand the use of the death 
penalty, and I urge my colleagues in the Senate to oppose the Sessions 
amendment because it adds another new death penalty to the Federal 
Criminal Code.
  Since the reinstatement of the death penalty in the 1970s, the Death 
Penalty Information Center has reported that 135 people have been 
released from death row in the United States because of innocence--
approximately one exoneration for every nine executions. Some have 
attempted to argue that the large number of death row exonerations 
demonstrates that the system is working. Yet in many cases, fatal 
mistakes were avoided only because of discoveries made by students or 
journalists, not the courts.
  In the last 6 months, there have already been five exonerations in 
death penalty cases in four different States. Ronald Kitchen was freed 
from prison in Illinois after the State dismissed all charges against 
him on July 7. He had spent 13 years on death row and a total of 21 
years in prison. Herman Lindsey was freed from Florida's death row on 
July 9 after the State supreme court unanimously ruled for his 
acquittal from a 2006 conviction. As the court said:

       [T]he State failed to produce any evidence in this case 
     placing Lindsey at the scene of the crime at the time of the 
     murder. . . . Indeed, we find that the evidence here is 
     equally consistent with a reasonable hypothesis of innocence.

  There have also been three other exonerations of death row prisoners, 
including Nathson Fields in Illinois, Paul House in Tennessee, and 
Daniel Moore in Alabama.
  This high number of exonerations has led many observers, both liberal 
and conservative, to express concern about the fairness of the death 
penalty's administration. As former Supreme Court Justice Sandra Day 
O'Connor has stated ``if statistics are any indication, the system may 
well be allowing some innocent defendants to be executed.'' How can we 
continue to expand a system that likely leads to the execution of 
innocent defendants?
  The U.S. Government should not be in the business of taking the lives 
of innocent Americans. Supreme Court Justice Arthur Goldberg once said 
that the deliberate institutionalized taking of human life by the state 
is the greatest degradation of the human personality imaginable. We 
must not expand this flawed system by accepting Senator Sessions' broad 
amendment.
  In 2007, New Jersey became the first State to repeal the death 
penalty since the modern era of capital punishment began in the 1970s. 
New Mexico followed in 2009. The number of States without a death 
penalty has now increased to 15. States have begun to recognize that 
flawed administration of the death penalty has dire consequences--no 
matter how slight or unintentional that flaw may be.
  The American public has also recognized the danger created by a 
society that supports the death penalty. A 2008 Gallup poll found that 
support for the death penalty is at its lowest level in the last 30 
years. American citizens are deciding that they will not tolerate this 
archaic form of punishment.
  Furthermore, there is no denying that there is a pattern of racial 
bias in death sentencing. A study in California found that those who 
killed Whites were over three times more likely to be sentenced to 
death than those who killed Blacks, and over four times more likely 
than those who killed Latinos. In addition, a study found that in 96 
percent of the States where there have been reviews of race and the 
death penalty, there was a pattern of either race-of-victim or race-of-
defendant discrimination, or both. Administration of the death penalty 
is flawed, and that flaw disproportionately affects racial minorities.
  The average cost of defending a Federal murder case when the death 
penalty is sought is $620,000. That is about eight times the cost of a 
Federal murder case in which the death penalty is not sought. It has 
been shown time and time again that sentencing an individual to life in 
prison is far cheaper than the administration of the death penalty. For 
example, the California death penalty system costs taxpayers $114 
million a year beyond the costs of keeping convicts locked up for life. 
Taxpayers have paid more than $250 million for each of the State's 
executions. While the monetary costs of seeking the death penalty are 
high, the possibility of executing an innocent American is the ultimate 
cost.
  Some argue in favor of the death penalty because they believe it 
deters individuals from committing some of the most severe crimes. 
According to a survey of the former and current presidents of the 
Nation's top academic criminology societies, 88 percent of these 
experts rejected the notion that the death penalty acts as a deterrent 
to murder. In addition, a Hart Research Poll of police chiefs in the 
U.S. found that the majority of the chiefs do not believe that the 
death penalty is an effective law enforcement tool. If the death 
penalty does not deter violent crime, we shouldn't ask our government 
to play executioner.
  Stephen Bright is a preeminent scholar on the death penalty. In his 
law review article Will the Death Penalty Remain Alive in the Twenty-
First Century?, he states:

       If we here in the United States examine our own system, 
     face its flaws, and think about what kind of society we want 
     to have, we will ultimately conclude that, like slavery and 
     segregation, the death penalty is a relic of another era, 
     that it represents the dark side of the human spirit, and 
     that we are capable of more constructive approaches to the 
     problem of crime in our society.

  All violent crime is reprehensible and deserves to be punished. 
However, as Stephen Bright points out, we are capable of more 
constructive approaches to dealing with crime than by using the death 
penalty. The death penalty is a relic of the past. It has been proven 
to lead to wrongful executions where innocent lives are lost at the 
hand of their government. Although most developed nations in the world 
have abandoned the death penalty, the United States, which purports to 
be a leader in the protection of human rights, continues to increase 
the number of death-eligible offenses that are on the statute books.
  The Kennedy amendment being offered will ensure consistency with 
existing federal law and Supreme Court precedent by setting forth clear 
standards for the use of the federal death penalty only in hate crimes 
cases where a murder occurs. Given concerns regarding the well-
documented mistakes and racial disparities associated with death 
penalty cases, this amendment adds appropriate safeguards in cases 
where the federal government seeks the ultimate--and irreversible--
penalty of death. In a hate crime prosecution involving the death 
penalty, the amendment will empower the trial court to determine 
whether the case was properly considered to be among the most 
aggravated of death-eligible hate crimes.
  The Kennedy amendment is modeled after an existing Nebraska State 
law,

[[Page 18270]]

and will establish a system of meaningful proportionality review in 
capital hate crime prosecutions. If the court determines that a case is 
not among the ``worst of the worst'' of hate crimes resulting in a 
homicide, it can dismiss the government's request for a death penalty 
at the conclusion of the guilt trial or at the conclusion of the 
penalty trial, before the sentencing decision is submitted to the jury. 
Under the Kennedy amendment, the test applied by the trial court to 
determine whether a case is among the ``worst of the worst'' is whether 
death sentences are sought and imposed more than half the time in 
similar Federal cases. This information will enable the court to assess 
the extent to which race or other inappropriate factors may have been a 
systemic factor in prior capital charging and sentencing decisions in 
hate crimes that have resulted in the victim's death. The Kennedy 
amendment's requirements are a significant improvement over existing 
Federal practice in death penalty cases.
  Senator Sessions' amendment increases the number of death-eligible 
offenses. It expands the use of the death penalty to two new offenses--
those created by the Matthew Shepard Act. It is time to stand up 
against expansion of the death penalty. With this statement, I submit 
several letters of opposition to the Sessions amendment and other 
amendments proposed by Senator Sessions. I urge my colleagues to vote 
against Senator Sessions' amendment and to support the Kennedy 
amendment to correct the flaws in Senator Sessions' proposal.
  In addition, Senator Sessions has introduced an amendment that 
creates a new Federal criminal offense for cases involving assaults or 
battery of a U.S. serviceman--or a member of the serviceman's immediate 
family. It creates a new Federal crime to punish individuals who 
knowingly destroy or injure the property of an active or retired 
serviceman or the property of an immediate family member, or conspires 
to do so. Crimes against veterans, members of the armed service are 
reprehensible. It is undeniable that our Nation is held together by the 
protection that these brave men and women provide each day. This 
amendment places another mandatory minimum in our Federal code. 
Mandatory minimums are unjust, unwise and unnecessary. Such sentences 
tie the court's hand to review the facts of an individual case. I hope 
that problems with the broad language of this amendment and the 
inclusion of a mandatory minimum can be worked out in conference.
  Finally, I appreciate that we were able to work with Senator Sessions 
to make some modifications to his amendment regarding the issuance of 
Attorney General guidelines for hate crime offenses. For over 40 years, 
the Justice Department's record demonstrates objective decisionmaking 
when selecting hate crime cases for prosecution--regardless of the 
administration in charge.
  DOJ guidance and professional responsibility rules already guard 
against any nonmeritorious prosecution. As originally drafted, Senator 
Sessions' amendment could have prevented ``mistake of fact'' cases--
such as an attack against a White person whom the defendant believed to 
be African American or cases based upon associations--in which a White 
woman is targeted because her spouse is African American. In addition, 
there was concern about whether the amendment could also impede 
prosecutions where a hate crimes victim was perceived to be African 
American, Latino, or gay because the amendment covers a more narrow 
class of victims than those covered under the hate crimes bill. With 
the cooperation and assistance from Chairman Leahy's staff along with 
Senator Sessions' staff, I believe that the modified version of this 
amendment will address these concerns so that the amendment will not be 
interpreted in any way to limit the scope of victims who are protected 
under the Matthew Shepard Act.
  Mr. President, I ask to have the letters to which I referred printed 
in the Record.
  The letters follow.

                               American Civil Liberties Union,

                                    Washington, DC, July 20, 2009.
     Re: ACLU urges ``No'' vote on SA 1615--Sessions Death Penalty 
         Amendment to Hate Crimes Amendment in Defense 
         Authorization Bill (S. 1390); Sessions amendment is 
         unconstitutional.

       Dear Senator: On behalf of the American Civil Liberties 
     Union (ACLU), a non-partisan organization with more than a 
     half million members, countless activists and supporters, and 
     fifty-three affiliates nationwide, we write to urge you to 
     oppose Senate Amendment 1615, being offered by Senator Jeff 
     Sessions (R-AL) to the National Defense Authorization Act (S. 
     1390). This unconstitutional and misguided amendment seeks to 
     expand the reach of the federal death penalty, including to 
     non-homicide crimes, by adding it to a hate crimes provision 
     that the Senate adopted by unanimous consent on Thursday 
     night.
       Capital punishment has been proven to be an unreliable and 
     expensive means of punishment and Congress should oppose any 
     effort to expand its scope and reach. According to the Death 
     Penalty Information Center, 135 innocent people have been 
     exonerated from death row since 1973, including five so far 
     in 2009 alone. Such a high error rate illustrates the 
     fallibility of our nation's death penalty system. Indeed, 
     chronic problems, including inadequate defense counsel and 
     racial disparities, have always plagued the death penalty 
     system in the United States. In a 2003 report entitled 
     ``Death by Discrimination--The Continuing Role of Race in 
     Capital Cases,'' Amnesty International found that even though 
     blacks and whites are murder victims in nearly equal numbers 
     of crimes, 80 percent of people executed since the death 
     penalty as reinstated have been executed for murders 
     involving white victims. More than 20 percent of black 
     defendants who have been executed were convicted by all-white 
     juries. Even if one supports the death penalty in theory, 
     there is no justifiable reason to expand our system of 
     capital punishment while such discriminatory impacts continue 
     to exist.
       A troubling record of the death penalty being imposed on 
     defendants who were later found to be innocent, along with a 
     long history of racial and geographic disparities in its use, 
     have spurred states to move away from its use. In 2007 and 
     2008, New Jersey and New Mexico, respectively, abolished the 
     death penalty, bringing to 15 the number of states (including 
     the District of Columbia) that currently have no death 
     penalty. In addition, in recent years, the number of death 
     sentences returned by juries has declined precipitously--from 
     around 300 a year in the 1990s to approximately 120 in the 
     past few years.
       The ACLU is also concerned that the Sessions Amendment 
     would unconstitutionally expand the reach of the federal 
     death penalty to include certain non-homicide crimes. The 
     United States Supreme Court has already held that the death 
     sentence is an unconstitutional penalty for kidnapping (see 
     Eberheart v. Georgia); sexual abuse (see Coker v. Georgia and 
     Kennedy v. Louisiana); and attempted murder (see Enmund v. 
     Florida and Tison v. Arizona), all crimes included in the 
     scope of the Session amendment. To now expand the reach of 
     the federal death penalty to these non-homicide crimes would 
     be clearly unconstitutional, under recent Supreme Court 
     precedent.
       The ACLU has a long history of supporting civil rights 
     legislation, including legislation responding to criminal 
     civil rights violations. While we did not support the 
     underlying hate crimes provision in the defense authorization 
     bill because of First Amendment weaknesses, an expansion of 
     the federal death penalty stands in stark contrast to 
     furthering the cause of civil rights in the United States.
       The ACLU urges you to oppose the Sessions Amendment (S.A. 
     1615) to the defense authorization bill and to vote ``NO'' 
     when it comes to the floor. The ACLU will score this vote. 
     Please do not hesitate to contact Chris Anders at (202) 675-
     2308 if you have any questions regarding this amendment or 
     the underlying hate crimes provision.
           Sincerely,
     Michael W. Macleod-Ball,
       Interim Director, ACLU Washington Legislative Office.
     Christopher E. Anders,
       Senior Legislative Counsel.
     Jennifer Bellamy,
       Legislative Counsel.
                                  ____

                                                        Leadership


                                   Conference on Civil Rights,

                                    Washington, DC, July 20, 2009.
       Dear Senator: On behalf of the civil rights, religious, 
     professional, civic, and educational groups below, we write 
     to urge you to oppose two unnecessary and harmful amendments 
     offered by Senator Sessions to S. 1390, the FY 2010 
     Department of Defense Authorization bill.
       As strong supporters of S. 909, the Matthew Shepard Hate 
     Crimes Prevention Act (HCPA), we supported the addition of 
     this legislation as an amendment to S. 1390 last week. At a 
     time when Congress is poised to advance civil rights 
     protection by promoting

[[Page 18271]]

     new Federal-state partnerships and providing new tools to 
     address bias-motivated violence, the proposed amendments by 
     Senator Sessions (a staunch opponent of the HCPA) would be a 
     disturbing step backward--and raise the prospects of unequal, 
     politically-motivated, shifting standards of justice in 
     applying the new hate crime law in the future.
       One amendment offered by Senator Sessions, S.Amdt. 1615, 
     would add the death penalty to the provisions of the HCPA. We 
     strongly oppose this amendment.
       The HCPA was first introduced in 1997, but no version of 
     the bill has ever included the death penalty. Senate and 
     House sponsors of the bill and the very broad coalition of 
     supporters have always opposed adding the death penalty to 
     this legislation. The House of Representatives approved its 
     very similar version of this measure, HR 1913, the Local Law 
     Enforcement Hate Crime Prevention Act, without the death 
     penalty on April 29 by a vote of 249-175. An amendment to add 
     the death penalty was defeated at the House Judiciary 
     Committee markup.
       Supporters of the HCPA should oppose this amendment. The 
     death penalty is irreversible and highly controversial--with 
     significant doubts about its deterrent effect and clear 
     evidence of disproportionate application against poor people. 
     Moreover, there are serious, well-documented concerns about 
     unequal and racially biased application of the death penalty. 
     According to the Justice Department's Bureau of Justice 
     Statistics, since 1977, blacks and whites have been the 
     victims of murders in almost equal numbers, yet 80% of the 
     people executed in that period were convicted of murders 
     involving white victims.
       Importantly, the vast majority of hate crimes are 
     prosecuted by state and local officials. Failure to include 
     the death penalty in the HCPA, which will be codified at 18 
     U.S.C. 249, will not impact state action. States with the 
     death penalty are free to pursue that option.
       We also urge you to oppose another amendment, SA 1617, 
     offered by Senator Sessions. This amendment would require the 
     Attorney General to promulgate guidelines with ``neutral and 
     objective criteria for determining whether a crime was 
     motivated by the status of the victim.'' This amendment is 
     unnecessary and injects politics into the Justice Department 
     decision-making process in these cases. Senators should be 
     especially concerned that this additional Attorney General 
     guidance could vary from Administration to Administration, 
     resulting in uncertainty and, at worst, an unequal 
     application of this important law.
       Moreover, the amendment is redundant. The HCPA already 
     requires the Attorney General to certify that a crime meets 
     the requirement of the statute before initiating any 
     prosecution:
       (A) the State does not have jurisdiction;
       (B) the State has requested that the Federal Government 
     assume jurisdiction;
       (C) the verdict or sentence obtained pursuant to State 
     charges left demonstratively unvindicated the Federal 
     interest in eradicating bias-motivated violence; or
       (D) a prosecution by the United States is in the public 
     interest and necessary to secure substantial justice.
       This language tracks the very similar certification 
     requirement from an existing statute, 18 U.S.C. Sec. 245. FBI 
     investigators and Justice Department prosecutors have had 
     forty years of experience under this parallel statute to 
     develop well-established procedures governing the conduct of 
     prosecutors--and for determining whether a case is bias-
     motivated and whether the Justice Department has jurisdiction 
     to pursue it. There is no record of abuse by the Justice 
     Department in selective prosecutions or in using its 
     authority capriciously or arbitrarily. Therefore, there is no 
     need to burden these prosecutions with another layer of 
     guidance and another procedural obstacle.
       The time for action to update and expand federal hate crime 
     law is now. These amendments offered by Senator Sessions are 
     unnecessary and harmful and we urge you to oppose them.
       Please contact Michael Lieberman, Anti-Defamation League 
     Director, Civil Rights Policy Planning Center or Nancy 
     Zirkin, LCCR Executive Vice President with any questions. 
     Thank you in advance for your support.
           Sincerely,
         Anti-Defamation League; Human Rights Campaign; Leadership 
           Conference on Civil Rights; National Council of Jewish 
           Women; American Association of People with 
           Disabilities; American Association of University Women 
           (AAUW); American Federation of Labor-Congress of 
           Industrial Organizations (AFL-CIO) American Federation 
           of Teachers.
         American Jewish Committee; Amputee Coalition of America; 
           Asian American Justice Center; Association of 
           University Centers on Disability; Bazelon Center for 
           Mental Health Law; B'nai B'rith International; 
           DignityUSA; Disability Rights Education and Defense 
           Fund.
         Family Equality Council; GLSEN--The Gay, Lesbian and 
           Straight Education Network; Helen Keller National 
           Center National Coalition on Deaf-Blindness; Hindu 
           American Foundation; Human Rights Campaign; Human 
           Rights First; Jewish Council for Public Affairs; Legal 
           Momentum.
         NAACP; NA'AMUT USA; National Advocacy Center of the 
           Sisters of the Good Shepherd; National Center for 
           Transgender Equality; National Coalition for the 
           Homeless; National Coalition on Deaf-Blindness; 
           National Coalition to Abolish the Death Penalty; 
           National Congress of Black Women.
         National Council of La Raza; National Disability Rights 
           Network; National Gay and Lesbian Task Force Action 
           Fund; National Urban League; Orthodox Church in 
           America; Parents, Families and Friends of Lesbians and 
           Gays (PFLAG) National; People for the American Way; 
           Religious Institute.
         School Social Work Association of America; Sikh American 
           Legal Defense and Education Fund; The American-Arab 
           Anti-Discrimination Committee (ADC); Union for Reform 
           Judaism; Unitarian Universalist Association of 
           Congregations; United Methodist Church, General Board 
           of Church and Society; Women of Reform Judaism; YWCA 
           USA.
                                  ____



                                     American Bar Association,

                                    Washington, DC, July 20, 2009.
       Dear Senator: I write on behalf of the American Bar 
     Association to urge you to vote against the Sessions 
     Amendment (No. 1615) to create a death penalty offense for 
     what are now non-capital hate crimes. We understand that the 
     amendment will be offered during consideration of S. 1390, 
     Department of Defense authorization legislation.
       For decades, the American Bar Association has studied the 
     administration of the death penalty in the United States and 
     identified serious concerns that must be addressed by all 
     jurisdictions that seek to impose it. Among these concerns 
     are: (1) the lack of competent counsel in capital cases; (2) 
     the need for proper procedures for adjudicating claims in 
     capital cases (including the availability of federal habeas 
     corpus); and (3) racial discrimination in the administration 
     of capital punishment. The ABA has called for reforms that 
     are consistent with many longstanding ABA policies intended 
     to ensure that death penalty cases are administered fairly 
     and impartially, in accordance with due process, and to 
     minimize the risk that innocent persons may be executed.
       The proposed Sessions Amendment to S. 1390 (``Amendment'') 
     fails to address the profound concerns articulated by the ABA 
     and others about the lack of fairness and due process in the 
     federal death penalty system. To expand an already ``broken 
     system'' without first addressing the serious flaws in the 
     system would risk the execution of innocent persons and other 
     acts of injustice.
       The Amendment would also result in an unprecedented and 
     unconstitutional expansion of the federal death penalty. 
     Unlike every other state death penalty statute in the United 
     States, a death sentence pursuant to this Amendment is 
     available for an offense that did not result in the death of 
     a victim. The United States Supreme Court has definitively 
     ruled that a death sentence is inappropriate when the offense 
     did not result in the death of the victim. Kennedy v. 
     Louisiana, 554 US        (2008). The Court held that none of 
     these laws, where the crime against an individual involved no 
     murder, were in keeping with the national consensus 
     restricting the death penalty to the worst offenses. The ABA 
     is thus concerned that the proposed Amendment is not 
     consistent with constitutional principles or Supreme Court 
     precedent.
       The ABA strongly condemns hate crimes; we adopted policy in 
     1987 that states that ``the ABA condemns crimes of violence 
     including those based on bias or prejudice against the 
     victim's race, religion, sexual orientation, or minority 
     status, and urges vigorous efforts by federal, state, and 
     local officials to prosecute the perpetrators and to focus 
     public attention on this growing national problem.'' 
     Likewise, ABA supports the aggressive prosecution and 
     deterrence of these offenses. However, in light of its 
     experiences, studies, and policies on the death penalty, the 
     ABA opposes an expansion of the current federal death penalty 
     system so that these crimes would carry a potential death 
     sentence for offenders.
       The American Bar Association thus urges you to vote against 
     this Amendment when it is considered on the Senate floor.
           Sincerely,
                                                 Thomas M. Susman,
                    Director, Governmental Affairs Office.


                           Amendment No. 1616

  Mr. LEVIN. Mr. President, I ask unanimous consent that the Sessions 
amendment No. 1616 now be the pending business, and that at 4:10 p.m., 
the Senate proceed to vote in relation to the amendment, with the time 
until then equally divided and controlled in the usual form.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:


[[Page 18272]]

       The Senator from Michigan [Mr. Levin], for Mr. Sessions, 
     proposes an amendment numbered 1616.

  Mr. LEVIN. Mr. President, I ask unanimous consent, with the 
permission of the Senator from Alabama, that the reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To prohibit assault or battery of a United States serviceman 
 on account of the military service of the United States serviceman or 
                        status as a serviceman)

       At the appropriate place, insert the following:

     SEC. __. ATTACKS ON UNITED STATES SERVICEMEN.

       (a) In General.--Chapter 67 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1389. Prohibition on attacks on United States 
       servicemen on account of service

       ``(a) In General.--Whoever knowingly assaults or batters a 
     United States serviceman or an immediate family member of a 
     United States serviceman, or who knowingly destroys or 
     injures the property of such serviceman or immediate family 
     member, on account of the military service of that serviceman 
     or status of that individual as a United States serviceman, 
     or who attempts or conspires to do so, shall--
       ``(1) in the case of a simple assault, or destruction or 
     injury to property in which the damage or attempted damage to 
     such property is not more than $500, be fined under this 
     title in an amount not less than $500 nor more than $10,000 
     and imprisoned not more than 2 years;
       ``(2) in the case of destruction or injury to property in 
     which the damage or attempted damage to such property is more 
     than $500, be fined under this title in an amount not less 
     than $1000 nor more than $100,000 and imprisoned not more 
     than 5 years; and
       ``(3) in the case of a battery, or an assault resulting in 
     bodily injury, be fined under this title in an amount not 
     less than $2500 and imprisoned not less than 16 months nor 
     more than 10 years.
       ``(b) Exception.--This section shall not apply to conduct 
     by a person who is subject to the Uniform Code of Military 
     Justice.
       ``(c) Definitions.--In this section--
       ``(1) the term `Armed Forces' has the meaning given that 
     term in section 1388;
       ``(2) the term `immediate family member' has the meaning 
     given that term in section 115; and
       ``(3) the term `United States serviceman'--
       ``(A) means a member of the Armed Forces; and
       ``(B) includes a former member of the Armed Forces during 
     the 5-year period beginning on the date of the discharge from 
     the Armed Forces of that member of the Armed Forces.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 67 of title 18, United States Code, is 
     amended by adding at the end the following:

``1389. Prohibition on attacks on United States servicemen on account 
              of service.''.

  Mr. LEVIN. I yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Alabama.
  Mr. SESSIONS. Did we get an agreement on the time before we vote?
  The PRESIDING OFFICER. The time is equally divided until 4:10 p.m.
  Mr. SESSIONS. Madam President, I thank Senator Levin. It is always a 
pleasure to work with him and others who work with us to make sure that 
when we prosecute a hate crime that results in death, that it is 
possible to have the death penalty in Federal court. I think that is 
appropriate in those instances where it may be appropriate for the 
Federal Government to proceed with such a death penalty prosecution. It 
would be odd that it would not be possible and a crime could have 
resulted--easily in multiple murders--by one of the most vicious 
criminals one can imagine.
  The next amendment I call the soldiers amendment. It is distinct from 
the hate crimes legislation we have been discussing. It expands the 
protections that the United States of America provides to its soldiers. 
Remember, we provide protections now to Federal officers, postmen--any 
Federal officer of the United States is protected, and so are soldiers 
in certain circumstances.
  This amendment would create a new Federal crime which puts members of 
the U.S. military on equal footing with other protected classes. It 
makes it a crime to knowingly assault, batter a serviceman or immediate 
family member or knowingly destroy or injure their property ``on 
account of the military service or status of that individual as a 
United States serviceman . . . ''
  It is not a total expansion of Federal law, but it says if you are 
attacked or assaulted, battered, or your family members are simply 
because you are a member of the U.S. military serving your country, 
then the Federal Government would obviously have the ability to 
prosecute because it is a high duty, and no higher responsibility, for 
the U.S. Government to protect its soldiers from assaults arising from 
their service to our country.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. Madam President, we have had problems with these 
assaults on our military officers. This will be a good step in 
correcting that situation.
  I thank the Chair for the opportunity to speak. I hope my colleagues 
will support the amendment.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first, I thank the Senator from Alabama 
for this amendment. He is a valued member of the Armed Services 
Committee. He knows, as we all know, because of our work on the Armed 
Services Committee, how our men and women in uniform protect us, and we 
should do everything we can when it comes to our criminal laws to 
protect them and their families. This amendment is aimed at doing this. 
It would create a new Federal crime. It is appropriate we do that. I 
support the amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. Without objection, the clerk will call the 
roll.
  The bill clerk proceeded to call the roll.
  Mr. LEVIN. 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. LEVIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to amendment No. 1616.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from Massachusetts (Mr. Kennedy), the Senator from 
Louisiana (Ms. Landrieu), and the Senator from Maryland (Ms. Mikulski) 
are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Utah (Mr. Bennett), the Senator from Missouri (Mr. Bond), the 
Senator from Florida (Mr. Martinez), and the Senator from Alaska (Ms. 
Murkowski).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 92, nays 0, as follows:

                      [Rollcall Vote No. 234 Leg.]

                                YEAS--92

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--8

     Bennett
     Bond
     Byrd
     Kennedy
     Landrieu
     Martinez
     Mikulski
     Murkowski
  The amendment (No. 1616) was agreed to.
  The PRESIDING OFFICER. The Senator from South Carolina.

[[Page 18273]]


  Mr. DeMINT. I ask unanimous consent I be allowed to speak for 5 
minutes and Senator Hutchison to follow me.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. I was going to inquire of the Senator whether he is 
speaking on the bill? It is morning business.
  Mr. McCAIN. For how long?
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                           Health Care Reform

  Mr. DeMINT. Madam President, I know we are debating the Defense 
Authorization bill and a myriad of other things we are sticking into 
the bill. Nationally, Americans are focused on health care and what the 
President and the majority are trying to push through in a mad rush 
that we seem to have been in all year long under this guise of crisis. 
It is pretty amazing in that the legislation we are talking about would 
not take effect for several years, so it is incredible we are being 
told we need to pass this in the next couple of weeks before we go home 
in August.
  The last time the President made grand promises and demanded passage 
of a bill before it could be reviewed or even read, we ended up with 
the colossal stimulus failure and unemployment near 10 percent. Now we 
are being told they misread the economy. But we were urged to pass this 
within a day or two because we had to do it in order to keep 
unemployment below 8 percent.
  Now the President wants Americans to trust him again but he cannot 
back up the utopian promises he is making about a government takeover 
of health care. He insists his health care plan will not add to our 
Nation's deficit, despite the nonpartisan Congressional Budget Office 
saying exactly the opposite.
  Today we learned that the President is refusing to release a critical 
report on the state of our economy which contains facts essential to 
this debate. What is he hiding? If the actual legislation came close to 
matching the President's rhetoric, he would have no problem passing 
this bill, with huge Democratic majorities in both Chambers. But 
Americans are not being fooled and we are discovering the truth about 
his plan, which includes rationed care, trillions in new costs and high 
taxes, and penalties which will destroy jobs, and even government-
funded abortion.
  In addition, we are looking at a deficit increased by hundreds of 
billions of dollars and billions in new taxes on small businesses. It 
could destroy over 4 million more jobs, according to a model by the 
President's own chief economic adviser, and it could force 114 million 
Americans to lose their health care, according to a nonpartisan group.
  Let's be clear. There is no one in this debate advocating that we do 
nothing, despite the President's constant straw man arguments. 
Republicans have offered comprehensive health care reform solutions 
that cover millions of the uninsured without exploding costs, raising 
taxes, and rationing care. Since I have been in Congress, we have 
introduced a number of proposals that would help the uninsured buy 
their own policies.
  We have introduced bills that would allow them to deduct it from 
their taxes just as businesses do, but our Democratic colleagues have 
killed it. We have introduced legislation that would allow Americans to 
buy health insurance anywhere in the country, to make it more 
competitive and more affordable, but the Democrats have killed it. We 
have introduced legislation that would allow Americans to use money in 
their health savings accounts to pay for an insurance premium, but the 
Democrats have killed it. We have introduced legislation that would 
stop all these frivolous and wasteful lawsuits that cause the cost of 
medicine to go up, but the Democrats have killed it. We have introduced 
association health plans that would allow small businesses to come 
together so they could buy policies less expensively, but the Democrats 
have killed it. Now they want to come back and say the government needs 
to take over health care.
  It makes absolutely no sense at all. We can give every American 
access to affordable health insurance plans if we get out of the way 
and allow the market to work.
  This is no time to rush into another government takeover of another 
part of the American economy, spending billions of dollars we do not 
have and raising taxes on the small businesses that create jobs.
  There are good solutions. I introduced one a couple of weeks ago that 
would give people fair treatment. If you do not get your insurance at 
work or you are unemployed, we will give you $5,000 a year to buy 
health insurance. That is fair treatment. It is the same basic benefit 
we give people who get insurance at work, good insurance that does not 
cost any more money.
  I would encourage the President to stop the rhetoric, let us take 
some time for debate, let's reform health care in a way that makes it 
possible for every American to have a health insurance plan they can 
afford and own and keep. We do not need the government to take it over.
  I yield for the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas is recognized.


                         Apollo 11 Anniversary

  Mrs. HUTCHISON. Madam President, today I rise to speak and 
commemorate a great milestone; that is, Apollo 11, the anniversary of 
its landing.
  Forty years ago today, on a hot Sunday afternoon in Texas, three 
astronaut families and close friends in the Houston suburb of El Lago 
were gathered around television sets in the privacy of their homes 
watching grainy broadcasts and listening to the sounds from a small 
loudspeaker wired from Mission Control conveying the voices of 
astronaut Charlie Duke's conversation with the Apollo 11 astronauts 
during the final moments leading to the first landing on the Moon.
  It was an intensely personal experience for all of them and yet one 
shared by much of the world. Everyone was glued to their televisions, 
those who could get to a television at that moment, and waiting for the 
word, wherever they were. It was 3:18 p.m. Houston time when Neil 
Armstrong announced: ``Houston, Tranquility Base here, The Eagle has 
landed.''
  A baseball game in Yankee Stadium in New York was stopped, and the 
announcement made that America had put men on the Moon. The audience 
erupted in applause and then burst into singing ``The Star Spangled 
Banner.'' In college dormitories, in workplaces, in living rooms across 
the world, people gathered to watch this broadcast of the ``giant leap 
for mankind'' that Neil Armstrong made, and Buzz Aldrin following him 
onto the surface of the Moon, that attracted and compelled millions of 
people throughout the world.
  The Apollo 11 landing is forever etched in the minds of those who 
watched it or heard it. They are bound together in the history of 
mankind in a stunning milestone in the advancement of humanity.
  The Apollo Program gave us the very first view through the eyes of 
human beings, captured and transmitted by their cameras, of the Earth, 
our own spaceship against the infinite backdrop of space. It gave us 
great advancement in technology, new industries, capabilities 
benefitting everyone on Earth, especially medical science and quality 
of life.
  Most importantly, it gave us a new vision of ourselves as a nation 
and the sense of our ability to accomplish things that once seemed 
utterly impossible and probably were not even thought about but yet had 
just happened.
  The anniversary we celebrate today comes at a time when we need to be 
reminded that we can overcome challenges and achieve great things when 
we are committed and dedicated and prepared to step up to the plate. We 
face enormous challenges as a nation and as part of the global 
community: finding solutions to our current economic crisis; ensuring 
our national security; finding solutions to the many domestic issues we 
face in health care, unemployment, energy, and the environment.
  What many may not recall is that in May of 1961, President Kennedy 
spoke to Congress on ``urgent national needs.'' He spoke of issues 
strikingly

[[Page 18274]]

similar to those we face today. He began with a focus on ``the great 
battleground for the defense of freedom'' being in Asia, Latin America, 
Africa, and the Middle East, and of enemies of freedom whose 
``aggression is more often concealed than open.''
  Remember this is 1961, and the President is talking about issues that 
relate to us today. Yet, he said, as he turned to the economy, he 
described the need ``to turn recession into recovery'' and meeting 
``the task of abating unemployment and achieving a bold use of our 
resources.'' He spoke of shoring up our international allegiances and 
providing aid to developing countries seeking to establish themselves 
as democratic states. He spoke of reshaping our military to better meet 
unconventional threats and mobility and flexibility in response and the 
need to ensure effective and accurate intelligence.
  This sounds so familiar because we are talking about a Moon landing, 
but yet we are facing all of these domestic, international, and 
security issues at the same time. But yet we do not lose that zeal to 
command something that is beyond the parameters we have known.
  President Kennedy spoke of the need to expand efforts in civil 
defense, what we might now call homeland security, to ensure the safety 
of our citizens at home. He spoke of renewed calls for arms control and 
reductions in nuclear arsenals across the globe.
  Finally, he focused his concluding remarks on the challenge of space 
exploration saying:

       Now is the time . . . for a great new American enterprise--
     time for this Nation to take a clearly leading role in space 
     achievement which, in many ways, may hold the key to our 
     future on earth.

  He went on to use those words that are perhaps the most familiar from 
that speech.

       I believe this Nation should commit itself to achieving the 
     goal, before this decade is out, of landing a man on the moon 
     and returning him safely to the earth.

  President Kennedy made that commitment for U.S. leadership in space 
and set the highest possible goal for establishment of that leadership 
with the Apollo Program at a time when the Nation faced challenges not 
unlike those we face today. I believe he did so because he saw that 
space exploration was something that could elevate the entire national 
spirit and enhance its broader economy and national security.
  As we celebrate the anniversary of the lunar landing, we honor the 
vision, the courage, and the accomplishments of all of the men and 
women of Apollo, whether astronauts, engineers, flight directors, or 
assembly workers, and their families. We thank them for two generations 
of excellence and leadership in science and technology.
  How do we best honor that legacy? We can do it by continuing our 
Nation's commitment to space exploration and to sustain the leadership 
role they won for us in those early pioneering days. We must recognize, 
as President Kennedy did, that space exploration was an important and 
urgent national need, not an activity to be short-changed or sacrificed 
in the face of other pressing economic and security concerns.
  We must make the investment needed to ensure that the United States 
has the ability to launch humans into space. Today, we are looking at a 
few more missions of our space shuttle, and then we are looking at up 
to 5 years in which America will not be able to put men and women in 
space at all.
  This is, as Charles Krauthammer said in a recent article: Five years 
in which we are going to beg Russia or even China for space on their 
spaceships to be able to put men and women in space.
  Forty years ago America did something that changed our country and 
the world. It gave us new technology. It gave us the dominance of space 
for our national security purposes. It gave us the ability to have 
satellite-guided missiles that can now go into a window from miles away 
and stop the collateral damage and the death of innocent humans when we 
are in a war situation. It has given us so much. Forty years later we 
are sitting here with a space program where we are going to have 5 
years in which we cannot put men and women into space with our own 
vehicle. That is not what we should be celebrating on this 40th 
anniversary. We should be celebrating a renewal of the commitment to 
space exploration.
  We should be celebrating that we are going to finish out an 
international space station in which many of our international partners 
have invested billions, as have we, and that we are committed to 
putting people in that space station that is now designated as a 
national laboratory--our part is--to have the scientific exploration 
capability to be able to take the next step in medical research that 
cannot be done on Earth because we have that national lab.
  The idea that we would make that investment and then not be able to 
put people there for 5 years is unthinkable. That is what it is, it is 
unthinkable.
  So I want to remember the words of President Kennedy, and I have to 
say I want to remember another speech that President Kennedy made. It 
was at Rice University. He was talking about why we are committed to 
putting people on the Moon, why we are committed to things that are so 
visionary for the future.
  He said: Why would we put people into space? Why would Rice play 
Texas? Not because it is easy but because it is hard.
  That very next year, Rice tied the University of Texas in football. 
It was not in the same league as putting men on the Moon. It was not. 
But he had the vision and he also had the humor to convey it. He knew 
what made our country the best country in the world was the vision of 
doing things that would be seemingly impossible and having the capacity 
and commitment to do it.
  That is what President Kennedy led us to do 40 years ago. Today we 
must renew that commitment. That is the only way we can show we are 
worthy of all that has gone on before us that led to Neil Armstrong's 
famous words: ``One small step for man, one giant leap for mankind.''
  I hope with all of the remembrances we are making that the real 
effort that will be made is what Charlie Bolden said when he was in our 
committee last week. The chairman of the committee asked Charlie: 
``NASA's deteriorating. Tell me why we should support it?''
  Charlie Bolden, the new Administrator of NASA, said:

       I am committed to doing it and doing it right. We have to 
     have the commitment of Congress to make it happen.

  He knows what is right. He is a former astronaut, he is an engineer, 
he is a great Texan who is a visionary and the person who can implement 
that vision, and we are going to support him in every way.
  I hope all of my colleagues in Congress will do the same thing on the 
eve of the anniversary of one of the great achievements of America and 
all mankind.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. LAUTENBERG. Madam President, I commend the Secretary from Texas 
for her commemoration of this spectacular day when Americans went to 
the Moon. One of them was a fellow named Buzz Aldrin, who lived in the 
town of Montclair, NJ, the town that I inhabited for many years.
  Mrs. HUTCHISON. I thank the Senator from New Jersey because, of 
course, Buzz Aldrin is going to be at that commemoration tomorrow and 
has been one of the leaders in trying to make sure America does not 
flag in its enthusiasm and commitment to space exploration and all that 
it will bring us.
  So I thank the Senator for remembering Buzz Aldrin as well because he 
was a great astronaut and one of the leaders still today for that very 
important mission.
  Mr. LAUTENBERG. It looked as though it were a fairly simple mission. 
Now as we study it more thoroughly and realize what conditions were 
like there--the dust was threatening to the people, to the machinery, 
to the ship that took them there, to the spaceship

[[Page 18275]]

that took them there--it was a remarkable event. I join the 
distinguished Senator from Texas in her tribute.
  Mrs. HUTCHISON. I thank the Senator from New Jersey.


                           Amendment No. 1618

  Mr. LAUTENBERG. Madam President, this past Friday, five policemen 
from a city in New Jersey, Jersey City, were shot by a single gunman. 
On the previous Wednesday, only a few hundred feet from the steps of 
this Senate, a gunman fired an assault weapon at Capitol policemen. 
Despite this point in time, after all of that mayhem last week, we have 
seen the prospect for more gun violence offered by the Senator from 
South Dakota.
  He has offered an amendment that would gut State public safety laws 
and make it easier to carry concealed weapons across State lines, 
regardless of the laws of that State. Currently 48 States do allow some 
sort of concealed carried weapons. The standards vary from State to 
State based on each State's law enforcement needs and challenges. But 
under this new idea, this amendment would permit a concealed carry 
permit from one State to simply override the rules in other States. If 
I get a permit in State A, I can go to State B, C, D, any one I choose, 
with a weapon on my back, on my hip, wherever I want it. And I don't 
think it matters how many guns one carries.
  Understand this thoroughly, that despite a State's laws on 
availability of concealed guns, Congress would override them. The State 
says no. Congress would say: No, we want the Federal Government to be 
able to tell you what to do. That is unusual, because I think the 
offeror of this amendment is more often a States rights person. But now 
he wishes Congress to override State laws and make one's own State 
follow this mandate. It would deprive one's State from making its own 
decisions on the issue. One's constituents would not be able to say 
they don't want this to happen. In fact, this amendment would allow 
some people to carry concealed assault weapons, multifiring, multishell 
firing weapons in States where those assault weapons are not even 
permitted.
  The amendment before us is more about the right of States to make 
their own decisions about how they keep families in their States safe 
from gun violence. This amendment would allow almost anyone anywhere to 
carry a concealed firearm regardless of that State's law. Strangers 
coming into town carrying a hidden weapon have an open sesame 
opportunity to go anywhere they darn please--into town, into a school, 
into a sporting event, into a shopping mall, anywhere they wish to go 
regardless of what that State's laws are. Because under this amendment 
it is clear: If you have a license for a permit from a State in the Far 
West and you want to carry it to the eastern part of our country, you 
can do so. Just take away the public safety laws in that State and 
essentially erase the fact that they are now in the laws.
  The amendment declares to State governments that they don't know how 
to take care of themselves. The gun lobby in Washington is the best 
place to go to find out what you should or can do. We can't tolerate 
such an insult.
  Here are some of the State concealed weapon requirements that would 
be wiped out by the amendment. Eighteen States prohibit alcohol abusers 
from receiving carry permits, including South Dakota. Under the Thune 
amendment, these 18 States would have to allow alcohol abusers from 
other States to carry a weapon into their State. Twenty-four States 
prohibit those convicted of certain misdemeanor crimes, including 
Pennsylvania, which does not allow those convicted of impersonating a 
police officer, to carry concealed weapons. Under this amendment, those 
prohibitions would be violated. Nineteen States require those seeking 
concealed carry permits to complete gun safety programs. Under this 
amendment, those States would have to allow untrained, untested gun 
users from other States to carry concealed firearms. It is an outrage.
  The proponents of this amendment claim they are respecting each 
State's concealed carry laws. That is simply not true. Not only does 
the Thune amendment override a State's concealed weapons law, it also 
overrides State laws restricting the type of guns that can be possessed 
in that State, such as assault weapons. Think about that; the type of 
guns that are restricted in the State, that rule would be obviated, and 
you would have to permit the licensed gun owner from a far different 
State to come in.
  I have a letter from 400 mayors opposed to the Thune amendment. Over 
400 mayors wrote to the Congress and said: Vote no on the Thune 
amendment, including 106 from Pennsylvania, 51 from Florida, 50 from 
Ohio, 13 from Wisconsin--the list goes on--from Louisiana, from 
Missouri, from South Carolina, from almost every State in the country 
that has its own gun laws. They have written and said: Don't do this.
  As these mayors explained in their letter:

       Each state ought to have the ability to decide whether to 
     accept concealed carry permits issued in other states.

  I ask unanimous consent that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    July 17, 2009.
     Re: 400 mayors call on Congress to respect State autonomy and 
         protect public safety by voting no on the Thune Concealed 
         Carry Amendment.

     Hon. Nancy Pelosi,
     Office of the Speaker,
     Washington, D.C.
     Hon. Harry Reid,
     Senate Majority Leader,
     Washington, D.C.
       Dear Speaker Pelosi and Majority Leader Reid: As members of 
     Mayors Against Illegal Guns, a bi-partisan coalition of more 
     than 400 mayors representing more than 56 million Americans, 
     we are writing to express our strong opposition to 
     Congressional bills pushing for the Thune Concealed Carry 
     Amendment. If passed, this legislation will infringe upon the 
     ability of state and local governments to protect their 
     citizens with sensible, constitutional, community-specific 
     laws and regulations regarding the carrying of hidden 
     handguns. It will empower gun traffickers, making it easier 
     for them to transport the guns they sell to criminals without 
     being apprehended by law enforcement. Finally, the bill 
     threatens the safety of our police officers by making it far 
     more difficult to distinguish between legal and illegal 
     firearm possession.
       The Mayors Against Illegal Guns coalition has long believed 
     that the issue of concealed carry regulation is one best left 
     to cities and states. Our coalition believes that what state 
     officials, law enforcement and legislators decide are the 
     best policies for rural areas may not be the best for big 
     cities--and vice-versa.
       It is very common for states to set standards for carrying 
     guns on city streets that go beyond simply whether an 
     applicant is able to pass a federal background check. Many 
     states, including those with strong gun rights traditions, 
     have enacted common sense concealed carry laws that prohibit 
     carrying by persons regarded as unusually dangerous and 
     criminals convicted of certain misdemeanors, or that require 
     safety training for anyone who wants to carry concealed 
     firearms. For example:
       At least 31 states prohibit alcohol abusers from obtaining 
     a concealed carry permit, including South Carolina, which 
     prevents ``habitual drunkards'' from carrying guns.
       At least 35 states prohibit persons convicted of certain 
     misdemeanor crimes from carrying concealed firearms, 
     including Pennsylvania, which bars carrying by those who have 
     been convicted of impersonating a law enforcement officer and 
     other misdemeanor offenses.
       At least 31 states require the completion of a gun safety 
     program prior to the issuance of a permit, including Nevada, 
     which requires a 40-question written exam and live fire 
     training from three different positions with a certified 
     instructor as components of their required gun safety course.
       This legislation would eviscerate all of these standards, 
     moving concealed carry permitting to a new national lowest 
     common denominator.
       Each state ought to have the ability to decide whether to 
     accept concealed carry permits issued in other states. 9 
     states have chosen to allow concealed carrying by all out-of-
     state permit holders. However, 12 states choose not to 
     recognize any out-of-state permits. And 29 states recognize 
     permits only from selected states--typically from states with 
     equivalent or higher standards. Any of these options should 
     be available--and it should be each state's choice to make.

[[Page 18276]]

       This legislation will also aid and abet gun traffickers. In 
     December 2008, Mayors Against Illegal Guns issued a first-of-
     its-kind report illustrating how traffickers already rely on 
     states with weak laws as a source for the guns they sell 
     illegally. In fact, the report showed that 30% of crime guns 
     crossed state lines before they were recovered, meaning 
     traffickers and straw purchasers often purchase guns in one 
     state and then drive them to their destinations, often major 
     cities hundreds of miles away. This bill would frustrate law 
     enforcement by allowing criminal traffickers to travel to 
     their rendezvous with loaded handguns in the glove 
     compartment. Even more troubling is that a trafficker holding 
     an out-of-state permit would be able to walk the streets of 
     their city with a backpack full of loaded guns, enjoying 
     impunity from police unless he or she was caught in the act 
     of selling a firearm to another criminal.
       Finally, this law would not only frustrate our police 
     officers, it would endanger them. Policing our streets and 
     confronting the risks inherent in even routine traffic stops 
     is already perilous enough without increasing the number of 
     guns that officers encounter. Ambiguity as to the legality of 
     firearm possession could lead to confusion among police 
     officers that could result in catastrophic incidences. 
     Congress should be working to make the job of a police 
     officer more safe--not less.
       We urge every member of Congress who respects the 
     prerogatives of local law enforcement, wishes to shield 
     communities from gun trafficking, and strives to protect our 
     nation's police officers to take immediate action to oppose 
     and vote against this legislation.
           Sincerely,
     Thomas M. Menino,
       Mayor of Boston, Coalition Co-Chair.
     Michael R. Bloomberg,
       Mayor of New York City, Coalition Co-Chair.

  Mr. LAUTENBERG. As the mayors make clear, the Thune amendment savages 
the rights of States to enact their own laws. Unfortunately, this 
dangerous amendment doesn't end there. It would unleash total havoc by 
suddenly letting dangerous and unstable people carry weapons into other 
States and across State lines. Supporters of this amendment claim that 
only ``law-abiding citizens'' get their hands on concealed weapons 
permits. That is not true. Over the 2-year period from May 2007 to 
April 2009, concealed carry permit holders killed seven law enforcement 
officers with guns. In fact, the Florida Sun Sentinel did an 
investigation of concealed carry permit holders in Florida and found 
that Florida granted concealed carry weapons to more than 1,400 people 
who pled guilty or no contest to a felony; 216 people with outstanding 
warrants were allowed to carry a gun; 120 people with active domestic 
violence injunctions; and 6 registered sex offenders.
  I worked very hard some years ago--going back to 1996--to get a rule 
on issuing guns that would say to those convicted of misdemeanor 
spousal abuse should be unable to get guns. It was scoffed at by some 
who were here at that time who said: This isn't a gun matter. It is 
nothing too serious and why bother. I am pleased to tell the Senate 
that with Supreme Court affirmation about 6 months ago, saying that the 
law prohibiting gun permits to spousal abusers stood, 150,000 of these 
people were denied guns.
  When I look at these things, it raises a question. While a State such 
as Florida works to correct these problems, should every other State be 
forced to allow felons, domestic abusers, and sex offenders to carry 
guns within their States? I don't want it in my State.
  This is a reckless amendment that would force States from coast to 
coast to comply with the weakest conceal carry laws. A few months ago 
in Alabama, a person holding a concealed carry license went on a 
murderous rampage that lasted almost a full hour and spanned two 
communities. First he shot and killed his mother in Coffee County, AL. 
He then put on a vest loaded with firearms and ammunition, got into his 
car and drove into town. Once there he shot and murdered 10 innocent 
people--we can't forget that--including two young mothers, a father, 
and an 18-month-old child. It was later discovered that this killer had 
qualified and been issued a concealed weapons permit from the Coffee 
County sheriff's department.
  A few weeks after Mr. Mclendon's murderous rampage in Alabama, there 
was a premeditated shooting spree in upstate New York. The gunman drove 
his car up to a citizenship services center in Binghamton, NY, 
barricaded the backdoor with his car, and then burst through the front 
entrance with two handguns and a bag full of ammunition. In what would 
become the worst mass shooting since the tragic assault at Virginia 
Tech, the assailant opened fire, killing one receptionist and wounding 
another.
  He then entered a classroom where he sprayed gunfire, killing 12 more 
innocent people and wounding 7 others. The gunman then committed 
suicide. The killer was no stranger to guns. He was a firearms 
enthusiast and even though he had been convicted of a misdemeanor, he 
held a license to carry concealed weapons.
  The day after the city of Binghamton was terrorized by a gunman, two 
police officers arrived at a house in Pittsburgh to quell a domestic 
conflict between a man and his mother. When the two officers entered, 
they were ambushed and killed. The assailant was carrying three 
firearms and wearing a bulletproof vest and murdered the policemen with 
an AK-47.
  Minutes later, the gunman shot and killed a third officer who arrived 
at the scene. The attacker held the police at bay for 4 hours before 
surrendering. It was later learned the killer had been arrested for 
domestic abuse against his girlfriend but held a concealed weapons 
permit.
  We have to face up to this. This amendment would let more brutal 
people carry concealed weapons legally-- and not just in their own town 
or in their own State but in other States and across State lines.
  This amendment would also open the floodgates for gun trafficking. A 
gun dealer who sells firearms to criminals would be free to travel 
across the country with a car full of loaded weapons as long as the 
driver had a concealed weapons permit from some other State. The fact 
is, if the police were to discover the pile of guns in the trafficker's 
trunk, the police could do nothing about it.
  The prospect of this scenario is no exaggeration. Last year, a report 
showed that one-third of firearms sold on the black market came from 
States with weak gun safety laws. The Thune amendment would simply 
exacerbate this problem and make it easier for gun traffickers to 
supply known criminals--including terrorists--with weapons.
  The scourge of gun violence and gun deaths is a menace this Chamber 
must take seriously. Think about it. All of us here represent a State--
all of us, two per State--and we are being told by one of our Members 
that what we ought to do is let the Federal Government decide how we 
care for our people: decide, the Federal Government, how safe our 
streets ought to be; decide, the Federal Government, to ignore or 
obviate laws we have on our books, and say: We are going to override 
your books. We know best what is good for you.
  Well, those in other States--whether Illinois or San Francisco, CA, 
or Houston, TX--do not know better about what we ought to do in New 
Jersey than we do about them, and we should not allow this to take 
place.
  Just look at the toll gun violence takes on our most innocent and 
defenseless in our country. Every single day, 8 children die because of 
gun violence, while another 48 kids are shot. They, however, manage to 
survive their gun injuries. Think about it: over 50 kids shot each and 
every day. It is a tragedy in America.
  The Thune amendment would place our communities in danger in further 
danger than we already have. That is why law enforcement leaders--the 
very people who put their lives on the line to combat criminals and 
keep families safe--are against the Thune amendment. I have a letter 
from the International Association of Chiefs of Police opposing this 
amendment. As the letter explains, the police chiefs urge Congress to 
``act quickly and take all necessary steps to defeat this dangerous and 
unacceptable legislation.'' The Association of Chiefs of Police--if 
anybody ought to know what is good for

[[Page 18277]]

their communities, it should be the chiefs of police.
  Madam President, I ask unanimous consent that this letter be printed 
in the Record directly following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LAUTENBERG. It is no wonder that when police departments are in 
charge of issuing concealed weapons permits, they are very conservative 
about whom they allow to have these permits. Nevertheless, the 
amendment from Senator Thune would defer to the weakest--think this 
through--would defer to the weakest concealed permit laws. So now 
untrained, amateur gun owners will be free to carry a hidden firearm in 
other States and across State lines.
  Do we want to completely disregard State law enforcement officers' 
decisions or do we want criminals wandering our streets with pistols in 
their backpacks or carrying them on their sides or do we want unstable 
drivers stuck in rush hour with guns in the front seats of their cars? 
I do not.
  These are critical questions, and they should not be resolved by an 
amendment tacked onto a Defense authorization bill--defense. We have 
our soldiers, and the toll keeps rising in Afghanistan. By no means is 
Iraq a safe place to be. They should not have to be further jeopardized 
or have their health threatened. We see what conditions are like. We 
see the reports from the war front. This bill ought to be moved along 
just on the Defense authorization.
  On Thursday, the Judiciary Committee is going to hold hearings on 
Senator Thune's proposal. That hearing will give everyone a fair 
opportunity to get all the facts, hear from both sides of the issue, 
and learn from the testimony of experts. The hearing will include law 
enforcement officers testifying against this legislation. They deserve 
to have their voices heard. We should not shortcut the legislative 
process and the vital work of the Judiciary Committee.
  Before I close, I wish to make one thing crystal clear: This 
amendment has nothing to do with individuals' rights to protect 
themselves in their own homes. A concealed weapons permit is a separate 
and special privilege that lets gun owners hide their firearms in a 
jacket or a bag as they travel in the community and go out in public. 
Whether they are riding in a bus or a car or walking down the street, 
they can have that weapon.
  Why in our world is it necessary to make sure those who want to carry 
a concealed weapon can go anyplace they want with this weapon? You know 
what happens. We read about fights occurring in cafes all the time. To 
just allow people to come in there with weapons and see what happens 
after alcohol or too much celebration? Bad idea, and we should not 
allow it.
  States and local communities must be allowed to choose who has earned 
this privilege, based on what is in the best interest of that 
particular State or community. Unfortunately, this amendment takes the 
power away from the local community, away from the State capitals, and 
leaves the decision about what is in the public interest to the gun 
lobby and the politicians here in town--lobbyists in many cases.
  The Thune amendment poses extreme danger to our country, and it 
blatantly nullifies State laws and State rights in favor of a radical 
agenda. I strongly urge my colleagues to vote no on the Thune 
amendment.
  I recently was traveling with my wife out West, and we were 
interested in seeing a particular baseball team play. We know the 
owners of the team. The hotel had a gun show.
  By the way, I carried a gun. It was not concealed. I did it in a 
uniform during a war, and I loved that weapon. But it had a mission. It 
had a mission to kill somebody else before they killed me. That is not 
what we typically see with concealed weapons.
  In this case, we were at this hotel gun show, and people were buying 
ammunition for their purpose. There was lots of activity. Lots of 
ammunition was being put in the back of cars. The State, though, in 
that case permitted it. There could not be any objection. The State 
decided what was best for its citizens and its communities, and they 
did just that. I do not agree with that, but I cannot object. If that 
State wants to do it that way, they are entitled to do it that way, and 
who am I, from the State of New Jersey, to tell them how they should 
conduct themselves in those moments? I have no right to do that.
  So here we are. We are faced with an amendment that says nobody in 
the State knows what is better for their people than does the gun 
lobby, the NRA, the gun manufacturers. We disagree with that, and I 
hope we will show the American people we care enough about them and 
respect their intelligence--respect the fact they have their own 
structure in their States to take care of their needs as they see them. 
We do not want to see intruders carrying guns coming into those 
States--not mine, not yours, not anybody's--who do not pass the test 
that is required within that State's jurisdiction before they go around 
town with their weapons.

                               Exhibit 1

                                         International Association


                                          of Chiefs of Police,

                                    Alexandria, VA, July 17, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Majority Leader Reid: On behalf of the International 
     Association of Chiefs of Police (IACP), I am writing to 
     express our strong opposition to S. 845, the Respecting 
     States Rights and Concealed Carry Reciprocity Act of 2009. 
     This bill would weaken existing state laws by allowing an 
     individual to carry concealed firearms when visiting another 
     state or the District of Columbia as long as the individual 
     was entitled to carry concealed firearms pursuant to the laws 
     of his or her home state.
       It is the IACP's belief that S. 845 would severely 
     undermine state concealed carry licensing systems by allowing 
     out of state visitors to carry concealed firearms even if 
     those visitors have not met the standards for carrying a 
     concealed weapon in the state they are visiting. For example, 
     some states require a person to show that they know how to 
     use a firearm or meet minimum training standards before 
     obtaining a concealed carry license. These states would be 
     forced to allow out of state visitors to carry concealed 
     weapons even if they do not meet that state's concealed 
     licensing standards.
       It is the IACP's belief that states and localities should 
     have the right to determine who is eligible to carry firearms 
     in their communities. It is essential that state, local and 
     tribal governments maintain the ability to legislate 
     concealed carry laws that best fit the needs of their 
     communities--private citizens as well as active and former 
     law enforcement personnel.
       The IACP urges you to act quickly and take all necessary 
     steps to defeat this dangerous and unacceptable legislation.
       Thank you for your attention to this matter. Please let me 
     know how we can be of assistance.
           Sincerely,
                                                 Russell B. Laine,
                                                        President.

  Mr. LAUTENBERG. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. THUNE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1618

  Mr. THUNE. Madam President, the business pending before the Senate is 
the amendment I have offered to the Defense authorization bill. I think 
it is close to nearing an agreement with both sides about a process for 
proceeding to have debate on this amendment and then perhaps, 
hopefully, a vote sometime as early as Wednesday of this week.
  I think it is important to note for the record--because many have 
already or some at least have come down already and spoken on this 
amendment--that I had hoped to offer this amendment as a second-degree 
amendment to the hate crimes amendment that has been on the floor now 
for the past week. The Defense authorization bill was brought up early 
last week. Immediately, this hate crimes amendment was offered. It is a 
nongermane amendment. It is not relevant, obviously, to the underlying 
content of the bill.

[[Page 18278]]

  The Defense bill sets priorities for our national security interests 
for the coming year. Yet the Democratic leadership chose to make the 
hate crimes amendment the first amendment to be debated and voted upon. 
When they did that, it had been my intention to offer as a second-
degree amendment the concealed carry amendment, which is now the 
pending amendment before the Senate. It makes sense in a lot of ways, 
to me, to do that simply because one of the best ways to help prevent 
hate crimes against potential victims of hate crimes is to allow them 
to defend themselves. The concealed carry permit is something most 
States across the country have. What my amendment simply does is it 
allows those who have concealed carry permits in their own States to be 
able to move across State lines to other States that also allow 
concealed carry permits. Obviously, they also have to respect the laws 
of those individual States if there are restrictions on the exercise of 
that right.
  I think it is important in the debate over hate crimes to point out 
that the victims of those crimes ought to have at their disposal as 
many ways of defending themselves as is possible. Frankly, there are 
lots of organizations that have come out in support of this amendment 
for that reason, because they believe if you want to prevent those 
types of violent crimes, those types of hate crimes from being 
committed in this country, one way to do that is to allow individuals 
who are the potential victims of those types of crimes to be able to 
have a concealed carry permit in order to deter a crime from being 
committed.
  It is also important to point out that there are a number of 
arguments that have been raised against this amendment which just, 
frankly, are not true.
  First of all, my amendment does not create a national concealed carry 
permit system or standard. My amendment does not allow individuals to 
conceal and carry within States that do not allow their own citizens to 
do so. My amendment does not allow citizens to circumvent their home 
State's concealed carry permit laws. If an individual is currently 
prohibited from possessing a firearm under Federal law, my amendment 
would continue to prohibit them from doing so. When an individual with 
a valid concealed carry permit from their home State travels to a State 
that allows their citizens to conceal and carry, the visitor must 
comply with the restrictions of the State they are in.
  It has been suggested that somehow this preempts State laws. That is 
not the case. The restrictions an individual State imposes upon 
concealed carry laws that have been enacted by that State must be 
followed by any individual who has a concealed carry permit in their 
own State. In other words, the individual who travels to that State 
will be required to live under the laws that are on the books in that 
State.
  But it does get at an issue which I think many have raised regarding 
people who travel across State lines all the time--truckdrivers, for 
instance, who on any given day take a cargo load from one State across 
several States in this country and want to be able to protect 
themselves as they do so. In many cases, they stay overnight in 
truckstops or pull over for a nap somewhere. Being able to possess a 
firearm that would enable them to have some level of self-protection 
and to deter crimes from being committed makes a lot of sense.
  So the amendment is very straightforward and very simple. It is 
simply tailored to allow individuals to protect themselves while at the 
same time respecting States rights. So individual States can continue 
to enact restrictions on that, and every State has those. They may be 
place restrictions, and I think most States--I know my State of South 
Dakota has restrictions regarding courthouses, schools, and those sorts 
of places where there are restrictions against concealed carry. Many 
States have those types of laws which would apply to anyone who has a 
concealed carry permit in their own State of residence and moves into 
another State that also has a concealed carry permit law. So they would 
have to live under the laws of those States. So I want to make very 
clear what the amendment does and doesn't do.
  I have heard it said here that somehow this is going to be used to 
circumvent or to preempt State laws. That certainly is not the case. 
But it does get at the heart of what is a constitutional right in this 
country. The second amendment of the Constitution allows people to keep 
and bear arms. That is a constitutional right, and it should not be 
infringed upon. Like I said before, an individual State can enact 
statutes that impose restrictions on that. That is something most 
States have, and every State treats the situation a little differently. 
But an individual should be able to exercise their second amendment 
constitutional right and be able to travel through individual States as 
long as they live by the laws of those States.
  So that is essentially what the amendment does. It is very simple, 
very straightforward, and not particularly complicated, as I said. It 
certainly doesn't do many of the things that have been proposed here on 
the floor that it does. So I thought it was important to set the record 
straight.
  Obviously, we will have a debate about this in the next couple of 
days. I think we will probably have a debate on the defense amendment 
here first, and then we will get to this particular issue. But I hope 
my colleagues, as they listen to that debate, will do their best to 
ferret out and to differentiate facts from myth and facts from fiction 
because there are a lot of statements that are being made that are not 
consistent with the facts, and the facts on this are very clear.
  So I look forward to having the opportunity to make that case and to 
have this issue debated. As I said before, I had hoped to be able to 
offer this as a second-degree amendment to the hate crimes amendment 
because I think it fits very nicely there. As I said before, it ties in 
to the overall theme of protecting potential victims from hate crimes 
by allowing them to have a deterrent. Obviously, a concealed carry 
permit acts as a deterrent and has been proven over time, both in terms 
of the data you look at as well as a lot of anecdotal examples, to have 
the desired effect, which is to prevent many of these crimes from 
occurring in the first place.
  Because the Democratic leadership filled the tree--in other words, 
precluded or prevented my offering a second-degree amendment to the 
hate crimes amendment--we are now offering it as a first-degree 
amendment and understand completely the importance of moving the 
Defense bill forward. So I think, on Wednesday, after we have had a 
certain amount of time to debate, we will bring it to a vote, and I 
hope my colleagues would support this. I think it is an amendment that 
has broad bipartisan support. I already have 22 or 23 cosponsors on 
this amendment from both sides of the aisle, and I hope that number 
grows because it is common sense. It has been very effective in many 
States across the country.
  We want to use as many tools as we can to deter crime, particularly 
violent crimes that are committed against individuals in this country. 
It seems to me it makes sense in having a concealed carry permit law 
that allows an individual who has a valid concealed carry permit in 
their individual State of residence an opportunity to move freely 
across this country and to have that constitutional right protected.
  With that, Madam President, I yield the balance of my time and look 
forward in the next day or two, as this issue is debated further, to 
having a discussion with my colleagues here in the Senate in hopes that 
we can get this amendment enacted on this bill. So I hope my colleagues 
will vote for it when the time comes.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I just want to say how much I 
appreciate the Senator's efforts. It is consistent with the retired law 
enforcement officers bill we passed, as I recall, not long ago that 
allowed them to carry their weapons in other States under certain

[[Page 18279]]

circumstances. When people are traveling, they many times feel more 
vulnerable and they feel a greater need to protect themselves.
  I think it is a sound and reasonable approach--limited but 
important--and I thank Senator Thune for offering that amendment.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Madam President, notwithstanding the order of July 16, 
2009, I ask unanimous consent that the Levin-McCain F-22 amendment be 
considered on Tuesday, July 21, beginning immediately after the opening 
of the Senate on that day and extending for up to 2 hours, and the vote 
on the amendment occur upon the use or yielding back of time, as 
provided for under the previous order which established the parameters 
of considering the amendment, with the other provisions of the July 16 
order governing consideration of the Levin-McCain F-22 amendment 
remaining in effect; further, that on Wednesday, July 22, at 9:30 a.m., 
after opening of the Senate, the Senate then resume consideration of S. 
1390 and the Thune amendment No. 1618, with the time until 12 noon for 
debate with respect to amendment No. 1618, and the time equally divided 
and controlled between Senators Thune and Durbin or their designees, 
with no amendments in order to the Thune amendment during its pendency; 
that adoption of the Thune amendment requires an affirmative 60-vote 
threshold; further, that if the amendment achieves that threshold, then 
it be agreed to and the motion to reconsider be laid upon the table; 
that if it does not achieve that threshold, then it be withdrawn; that 
at 12 noon, the Senate proceed to vote in relation to the amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Madam President, for the information of the Senate, on 
Tuesday the Senate will convene at 10 a.m.; therefore, the vote on the 
Levin-McCain amendment is expected to occur around 12 noon. That is 
expected to be the first vote of the day.
  Mr. SESSIONS. Madam President, we have been busy in the Judiciary 
Committee with the Sotomayor hearing. I have not been able to 
participate in the debate over the hate crimes legislation. I want to 
follow up a little bit more on what I said earlier today. I have an 
obligation to assert a principle that I think is important in Federal 
criminal law.
  I was a Federal prosecutor for 15 years and was very familiar with 
the jurisdiction issues that are involved in Federal criminal law. We 
need to do this right. I do not think we have done that right.
  The bill has basically been made a part of this Defense bill already, 
so in one sense I guess the die is cast, but I will share a few 
thoughts.
  To repeat briefly, I will quote from the letter from six, I believe, 
of the eight members of the U.S. Commission on Civil Rights that was 
received June 16, was sent to the President and members of the 
Judiciary Committee. They said:

       We believe the MSHCPA--

  That is the so-called hate crimes legislation, this is their opinion, 
six of the eight members--

     will do little good and a great deal of harm. Provisions in 
     the bill ``are very much a violation of the spirit that drove 
     the framers of the Bill of Rights, who never dreamed that 
     federal criminal jurisdiction would be expanded to the point 
     where an astonishing proportion of crimes are now both state 
     and federal offenses. We regard the broad federalization of 
     crime as a menace to civil liberties. There is no better 
     place to draw the line on that process than with a bill that 
     purports to protect civil rights.

  In other words, this is an official commission of the U.S. 
Government, appointed by Presidents, and that is what they sent to us.
  Gail Heriot, who is a member of the commission, testified at our 
judiciary hearing a couple of weeks ago. She testified that:

       The proposed hate crimes legislation, which is being touted 
     as a response to murders, should not have been treated as a 
     mere photo opportunity. It is real legislation with real 
     world consequences--and not all of them are good. A close 
     examination of its consequences, especially its consequences 
     for federalism and double jeopardy protections, is therefore 
     in order.
       Given the many civil liberties issues that would raise, 
     including the routine potential for double jeopardy 
     prosecutions, this is a step that members of the Senate 
     should think twice before they take.

  Bob Knight, a senior fellow--I guess I am going to show some members, 
liberal lawyers and conservative advocates, also sharing concern over 
this legislation. I hope my colleagues have not treated these concerns 
too lightly.
  It is hard to vote against legislation that purports to fight hate. 
You do not want to be somebody defending hate crimes. I certainly do 
not. Neither do these good people who have expressed their concern.
  Bob Knight, a senior fellow at the American Civil Rights Union, said 
this:

       The proposed law, whatever its sponsors' good intentions, 
     is a grave threat to the constitutional guarantee of equal 
     protection under the law. America's legal heritage of judging 
     actions rather than thoughts or beliefs, and it will 
     politicize law enforcement by making some crime victims' 
     cases more important than others.
       Beyond the obvious unfairness of excluding some groups from 
     enhanced protections, such as the elderly, homeless, veterans 
     and children--

  They are not given enhanced protections of the hate crimes bill--

     the proposed law advances an underlying ambitious agenda to 
     punish individuals and groups that hold traditional values.

  This law:

       . . . lays the groundwork for the concept of ``thought 
     crime,'' in which someone's views or beliefs are 
     criminalized. Violent acts are already illegal and punished 
     under criminal law. This law adds penalties based on thought. 
     In order to prove that the defendant holds particular beliefs 
     that motivated a criminal act, his or her speech, writing, 
     reading materials and organizational memberships would become 
     key evidence.

  Brian Walsh, a senior fellow at the conservative Heritage Foundation, 
says this:

       The criminal justice system is in great need of principled 
     reform . . . this reform should not be driven by some 
     partisan politics. Unfortunately, the HCPA fails to measure 
     up to this standard and would substantially undermine 
     constitutional federalism and the high regard in which the 
     American public should hold Federal criminal law.

  The three main problems with this amendment are that:

     . . . the Act's new ``hate crimes'' offenses are far broader 
     and more amorphous than any properly defined criminal offense 
     should be--

  I agree with that, parenthetically. He goes on to say:

     --and they thus invite prosecutorial abuse, politically 
     motivated prosecutions, and related injustices. The Act's 
     ``hate crimes'' offenses violate constitutional federalism by 
     asserting Federal law-enforcement power to police truly local 
     conduct over which the Constitution has reserved sole 
     authority to the 50 states. The Act's ``hate crimes'' 
     offenses would be counterproductive, for nearly all States 
     have--tough ``hate crimes'' laws and the violent conduct 
     underlying the Act's ``hate crimes'' offenses has always been 
     criminalized in all 50 states.

  Nat Hentoff is a famous civil rights and libertarian attorney, a 
writer well known in the country as being a passionate advocate for 
civil liberties from an objective, I would say, point of view. He has 
respect from both conservatives and liberals, but I guess his 
background has mostly been on a more liberal approach to law.
  He starts off saying:

       Why is the press remaining mostly silent about the so-
     called ``hate crimes law'' that passed the House on April 29? 
     The Local Law Enforcement Hate Crime Prevention Act passed in 
     a 249-175 vote--17 Republicans joined with 231 Democrats. 
     These Democrats should have been tested on their knowledge of 
     the First Amendment, equal protection of the laws . . . and 
     the prohibition of double jeopardy. . . . No American can be 
     prosecuted twice for the same crime or offense. If they had 
     been, they would have known that this proposal, now headed 
     for a Senate vote-- violates all these constitutional 
     provisions.
       This bill would make it a federal crime to willfully cause 
     bodily injury--or try to--because of the victim's actual or 
     perceived ``race, color, religion, national origin, gender, 
     sexual orientation, gender identity or disability''--as 
     explained on the White House Web Site, signaling the 
     president's approval. A defendant convicted on these grounds 
     would be charged with a ``hate crime'' in addition to the 
     original crime and would get extra prison time.
       The extra punishment applies only to these ``protected 
     classes.''

  He quotes a Denver, CO criminal defense lawyer:


[[Page 18280]]

       As Denver criminal defense lawyer Robert J. Corry Jr. asked 
     . . . ``Isn't every criminal act that harms a person a hate 
     crime?'' Then, regarding a Colorado ``hate crime'' law, one 
     of 45 such state laws, Corry wrote:
       ``When a Colorado gang engaged in an initiation ritual 
     specifically seeking out a `white woman' to rape, the Boulder 
     prosecutor declined to pursue ``hate crime'' charges. She was 
     not enough of one of its protected classes.''
       Corry adds that the State ``hate crime'' law--like the 
     newly expanded House of Representatives Federal bill--``does 
     not apply equally,'' as the 14th amendment requires, 
     essentially instead:
       ``Criminalizing only politically incorrect thoughts 
     directed against politically incorrect victim categories.''

  Hentoff concluded:

       Whether you're Republican or Democrat, think hard about 
     what Corry adds:
       ``A government powerful enough to pick and choose which 
     thoughts to prosecute is a government too powerful.''

  David Rittgers of the CATO Institute, a libertarian group, said this:

       The Federal hate crimes being considered in the Senate 
     undermines the rule of law and shows casual disregard, if not 
     outright hostility, for the principles of limited government 
     and equality under the law. The bill Federalizes violent acts 
     against victims by reason of their actual or perceived race, 
     color, religion, national origin, gender, sexual orientation, 
     gender identity or disability.
       Never mind that these acts are already prosecuted by the 
     states--45 of which have their own hate crime laws--and that 
     violent crimes of this nature are universally perceived as an 
     affront to justice. Matthew Shepard, a gay man brutally 
     killed in Wyoming, has provided one of the rallying cries for 
     passage of this legislation. His killers both received two 
     consecutive life sentences from a state court. James Byrd, 
     Jr., the African-American man dragged to death behind a truck 
     in Texas, is cited as another reason to pass the law. His 
     killers received death sentences or life imprisonment.
       The federal government would also be authorized to 
     prosecute whenever ``the verdict or sentence obtained 
     pursuant to State charges left demonstratively unvindicated 
     the Federal interest in eradicating bias-related violence.'' 
     While this doesn't violate the letter of the Supreme Court's 
     double jeopardy jurisprudence--the federal and state 
     governments are considered separate sovereigns--it certainly 
     violates its spirit.

  The National Religious Broadcasters write they are opposed to the 
concept as well as the current legislative permutations of the so-
called ``hate crimes.'' This legislation takes any conduct that is 
viewed as a threat to homosexuals or bisexuals or a threat to persons 
who want to immunize their religion from public debate and turns that 
threat or perceived threat into a species of criminal felony. As a 
consequence, this legislation will inevitably stifle the free exercise 
of religion and freedom of speech, and brings with it the very real 
likelihood of abusive prosecutions. Federal ``hate crimes'' laws also 
ignore the fact that the underlying core offense, the causing of bodily 
injury to another, is already criminalized in all 50 states.
  The Research Council says this:

       Hate crimes laws force the courts to guess the thoughts and 
     beliefs which lie behind a crime, instead of looking at the 
     crime itself.

  The Family Research Council believes that all crimes should be 
prosecuted to the fullest extent of the law, and that every violent 
crime has some form of hate behind it. All around the country, crimes 
are being prosecuted in the State justice systems. American justice is 
being done. There is simply no need for a Federal hate crimes law.
  Violent attacks upon people or property are already illegal, 
regardless of the motive behind them. With hate crime laws, however, 
people are essentially given one penalty for the action they engage in 
and an additional penalty for the particular and highly selective 
attitudes and thoughts that motivated these actions.
  Motive-based analysis and intent-based analysis are not the same 
thing. For example, with the crime of manslaughter, intent-based 
analysis looks at whether the perpetrator intended the result. Hate 
crime legislation takes into account what the offender thinks, feels, 
or believes about the victim regardless of whether the perpetrator 
intended the result. This is why hate crimes may be referred to as 
``thought crimes.''
  The Traditional Values Coalition says:

       The so-called hate crimes bill will be used to lay the 
     legal foundation and framework to investigate and prosecute 
     and persecute pastors, business owners, Bible teachers, 
     Sunday School teachers, youth leaders, Christian counselors, 
     religious broadcasters, and anyone else whose actions are 
     based upon and reflect the truths found in the Bible, which 
     have been protected by the first amendment.

  That is not accurate? Well, they are concerned about that. And they 
object to the legislation.
  The Concerned Women for America note that:

       The legislation would violate genuine constitutional rights 
     in an attempt to address a nonissue, create a caste system of 
     victims, violate the spirit of the Double Jeopardy Clause of 
     the Constitution, and unintentionally extend privileges to 
     individuals who engage in illegal sexual acts even against 
     children.

  I would share those thoughts and say that this is why this 
legislation has been controversial. The predicate for this legislation 
is the interstate commerce tag that is very weak. The Supreme Court has 
already found several Federal statues do not have sufficient interstate 
nexus to justify prosecuting a crime in Federal court.
  I would say if a few people walk out in the pasture and one finds a 
rock and murders a person, as a Federal prosecutor for 15 years I will 
tell you, there is no jurisdiction federally to try and prosecute that 
case. It is a criminal case in the State court only. And to make it a 
Federal case, you have to have some sort of peg to hang your hat on, so 
to speak.
  In that case, I do not think there is any. But if you are on a 
railroad train and you are traveling and you are in interstate 
commerce, you murder someone, that can be a Federal crime. If you steal 
from an interstate shipment, that can be a Federal crime. If you murder 
a postman, that is a Federal crime--or a Federal civil servant, and so 
forth. Those are Federal crimes. But normal murder, rape, robbery, 
theft, that occur by the tens of thousands every day all over America 
are not Federal crimes. They are not prosecutable in Federal court.
  The very small number of FBI agents, compared to the massive numbers 
of police and sheriffs, deputies, and State law enforcement officers is 
such that there is no way they can ever begin to prosecute or 
investigate these crimes. They have to focus on those crimes that are 
uniquely Federal, vindicate a uniquely Federal interest.
  With regard to the Civil Rights Act that was passed in the 1960s, it 
has some similarities, although it is more tightly written.
  I will conclude with these thoughts: There was a demonstrable record 
of failure to prosecute violations of civil rights against African 
Americans in the South, sad to say, and in other places in this 
country. It appeared that local law enforcement was ineffective, 
sometimes unwilling, to vindicate those rights, and so the Civil Rights 
Act said: If you are going to school or a legal activity at the city or 
county or Federal Government or voting and you are interfered with, 
that can be a Federal offense.
  There was a clear record to justify the need for Federal involvement 
in those cases. And most of those cases, I think virtually all, have 
been upheld as being sufficiently tied to interstate commerce to be a 
legitimate Federal crime to prosecute.
  We asked the Attorney General at a hearing recently, can he name any 
cases? He did not name a single one. But he said in his statement there 
were four. After the hearing we submitted questions to the Attorney 
General: Did he have any cases to show that these prosecutions are not 
being effectively prosecuted locally?
  He stood by the four. That is all we ever got over a period, I think, 
of 5 years. At least that is what I asked him for. And the four cases 
were very insubstantial. In each one of the four cases prosecutions 
were initiated. I think in all but one convictions were obtained.
  Some people were not happy with the results of the case, and they 
would have liked the Federal Government to take it over and prosecute 
it again. But as I said, there are tens of thousands of cases 
prosecuted every day, and many victims in those cases felt that the 
outcome of the case was not sufficient.

[[Page 18281]]

They would like also for the Federal Government to prosecute it again. 
But they might not have been in these ``special classes'' that got this 
``special benefit'' in this bill.
  Do you see then what it is all about? It is basically saying that the 
Federal Government sits up and hovers above the criminal justice 
system, and it can decide whenever, based on the length of the 
chancellor's foot, I suppose, when a case has not effectively resulted 
in justice.
  They said in their answer, they want to make sure that there is 
justice every time. That is a pretty high goal, I have got to tell you, 
especially when people might not agree. Juries make decisions. I hope 
we in this Congress will understand the huge responsibility we have to 
the historic concept that crimes of a local nature should be prosecuted 
locally, and that the Federal Government does not need to be involved 
in everything to try to ensure perfect justice.
  Indeed, it is not involved in every case and it never has been. It 
should not be. I wanted to make these quotes a part of the Record, and 
call on the Members of the Senate as we go forward in the future to 
make sure that the legislation we pass is consistent with our heritage, 
which understands that the Federal Government does not have a general 
criminal power, has only narrow limited enumerated power to make crimes 
Federal, and we ought not overreach and create a situation in which, 
according to the U.S. Civil Rights Commission in their letter to us: 
Every single rape would be a Federal crime because the action would 
have been carried out as a result of the gender of the person being 
assaulted.
  Ms. Heriot said she had talked with the Department of Justice in 
previous years about this, before she was on the Commission, and they 
refused to narrow the language because they wanted that broader 
language.
  I think that is too broad. This bill is too amorphous and too broad 
and should not become law.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HAGAN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.
  Mrs. HAGAN. I ask unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mrs. Hagan pertaining to the introduction of S. 1473 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. LEAHY. Mr. President, it reflects well upon this body that the 
Senate late last week voted to include the Matthew Shepard Hate Crimes 
Prevention Act of 2009 as an amendment to the Defense authorization 
bill with a strong bipartisan vote. This important legislation has also 
passed the Senate in 2007, 2004, 2000, and 1999. I am hopeful and 
optimistic that this time it will make it to the President's desk and 
be signed into law.
  This legislation will help to address the serious and growing problem 
of hate crimes. The recent tragic events at the Holocaust Museum, on 
top of many other recent hateful and devastating acts, have made clear 
that these vicious crimes continue to haunt our country. This 
bipartisan bill is carefully designed to help law enforcement most 
effectively respond to this problem. It has been stalled for far too 
long. The Senate's action last week was the right step and long 
overdue.
  I thank Senator Collins, Senator Snowe, and the other bipartisan 
cosponsors for their support. I particularly thank Senator Ted Kennedy, 
for whom this important civil rights measure has long been a priority, 
and I commend him for his steadfast leadership over the last decade in 
working to expand our Federal hate crimes laws.
  I wish he could have been here for the vote on Thursday, but I know 
he was proud of what the Senate did. I thank the many staff members who 
helped with this effort--Roscoe Jones, Joe Thomas, Elise Burditt, Leila 
George-Wheeler, Matt Smith, Noah Bookbinder, Kristine Lucius, and Bruce 
Cohen on my staff--as well as the staff for Senator Kennedy--Christine 
Leonard and Ty Cobb--who worked so hard on this legislation.
  I appreciate that Republicans were willing to come to an agreement to 
let this hate crimes amendment move forward. As part of that agreement, 
today we vote on several additional related amendments from Senator 
Sessions.
  Senator Sessions proposed an amendment creating a new criminal 
statute for attacks against U.S. servicemembers. While servicemembers 
are already appropriately covered by strong legal protections, I agree 
with the purpose of this amendment, and I appreciate Senator Sessions' 
willingness to work with us to improve it. I will support this 
amendment.
  Senator Sessions was also willing to work with us on another 
amendment of his which would require that all hate crimes prosecutions 
be undertaken pursuant to guidelines promulgated by the Attorney 
General. With the improvements that we worked out, I am happy to 
support this amendment as well.
  Finally, Senator Sessions proposed an amendment to apply the death 
penalty to a broad swath of hate crimes. This amendment, as offered, 
would have applied the death penalty even to cases involving offenses 
like attempted kidnapping where there was no intent to kill any person. 
Such a broad application would have clearly violated the Constitution 
as set out in ruling Supreme Court precedent.
  With regard to the death penalty, the Supreme Court recently held 
that, ``As it relates to crimes against individuals, . . . the death 
penalty should not be expanded to instances where the victim's life was 
not taken.''
  Whether or not Senators agree with that sentiment, we should not 
purposefully pass legislation that we know to be unconstitutional. As a 
result of my criticism, I understand that Senator Sessions will be 
modifying his amendment, and I appreciate that.
  Adding an expansive death penalty provision to hate crime statutes 
would also add new costs to enforcement since death penalty cases are 
consistently far more expensive and difficult for the government to 
litigate. Those increased costs could reduce the number of important 
hate crime investigations and prosecutions the government could 
conduct.
  We should be facilitating more hate crime investigations and 
prosecutions, not restricting the number the government can bring. I 
should also note that many proponents of hate crimes legislation, 
particularly in the House, as well as other influential House Members, 
strongly oppose the death penalty.
  The Leadership Conference on Civil Rights has written us to oppose 
this death penalty amendment, and I know several of my fellow Senators 
share my concerns with this amendment.
  Senator Kennedy has proposed a further amendment which would add 
important guidelines about when the death penalty could be used. I 
support this commonsense measure.
  I hope all Senators will join me in doing everything we can to ensure 
that effective, meaningful hate crimes legislation can be signed into 
law this summer.
  Mr. NELSON of Nebraska. Mr. President, I come to the floor to express 
my disappointment that the Senate failed to take advantage of an 
opportunity to debunk a false argument against the Matthew Shepard Hate 
Crimes Prevention Act. If it were up to me, the debate never would have 
gone in this direction, but since it has I have tried to do my best to 
address the concern--though I believe it to be unfounded--that this 
legislation protects ``pedophiles.''
  Some, including some constituents of mine in Nebraska, are concerned 
that a term used in this legislation, ``sexual orientation,'' could be 
interpreted as including ``pedophiles.'' This is obviously not the 
intent of the bill, nor is it possible that any of the categories 
protected by the bill could be read to include pedophiles. In short, 
nothing in

[[Page 18282]]

this legislation is intended, nor can it be construed, to protect 
pedophiles.
  The Attorney General, the chief law enforcement officer in the United 
States, has rejected the argument that this bill covers pedophiles. In 
fact, the ranking member of the Judiciary Committee, Senator Sessions, 
explicitly asked Attorney General Eric E. Holder a question for the 
record of the Judiciary Committee's hearing on this bill, which makes 
clear that the bill, as written, could not possibly be read to include 
pedophiles. As the Attorney General stated:

       Proposed U.S.C. Sec.  249(a)(2) would cover violent crimes 
     motivated by bias against the ``actual or perceived religion, 
     national origin, gender, sexual orientation, gender identity, 
     or disability of any person.'' This legislation would only 
     cover groups falling under these categories. The Department 
     [of Justice] does not believe that any group falling under 
     these categories should be excluded. The Department does not 
     believe that any of the listed categories could possibly be 
     read to include pedophiles, and therefore we do not believe 
     an amendment to exclude pedophiles is necessary.

  Despite this assurance, my colleague from South Carolina offered just 
such an amendment, and I signed on as a cosponsor to express 
sensitivity to the concern he raises, even though I do not believe this 
legislation protects pedophiles in any way.
  Existing Federal law, codified at 28 U.S.C Sec.  534 defines sexual 
orientation as consensual homosexuality or heterosexuality. A similar 
definition can be found in any dictionary of the English language. That 
and nothing more is what we are addressing in this bill.
  I might add that in my view to claim that this law could somehow be 
used to protect pedophiles shows a lack of confidence in and respect 
for local law enforcement, and the groups, such as the International 
Association of Chiefs of Police, the National Sheriffs Association, and 
the National District Attorneys Association, which are strongly 
supporting this bill and asking us to pass this legislation to help 
them do their jobs in investigating and prosecuting these heinous 
crimes.
  In order for the hate crimes law to be used in the manner some groups 
claim it could, a chief of police or local sheriff would have to 
decide, in conjunction with the county attorney or district attorney, 
that it was in their best interest and the best interest of the 
community to bring such a prosecution, in contravention of existing 
Federal laws that protect children from predators. Federal law 
enforcement, which serves as a backstop to local efforts under this 
bill, would also not use the law in this way because the Department of 
Justice has already stated their policy that this legislation does not 
protect pedophiles. As I quoted above, the Attorney General, the 
Nation's top law enforcement official, made the Department's policy 
crystal clear in Congressional testimony: ``the Department does not 
believe that any of the listed categories could possibly be read to 
include pedophiles.''
  We can have an honest debate about this bill. I have heard several 
arguments of reasons why this bill should be opposed, and I appreciate 
and respect the concerns which underlie those arguments. However, I 
feel the need to reaffirm that in no way is this bill intended to, or 
can be construed as, protecting pedophiles.
  Mr. REID. Mr. President, I ask unanimous consent that the July 15, 
2009, letter from Attorney General Holder to Senator McConnell and 
myself be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Office of the Attorney General,

                                    Washington, DC, July 15, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     Washington, DC.
       Dear Senators Reid and McConnell: I understand that S. 909, 
     the Matthew Shepard Hate Crimes Prevention Act, is now before 
     the Senate in the form of an amendment to pending 
     legislation. On behalf of the Administration, I strongly urge 
     the Senate to approve this vital legislation.
       As I stated in testimony before the Senate Judiciary 
     Committee on June 25, hate crimes victimize not only 
     individuals, but entire communities. Perpetrators of hate 
     crimes seek to deny the humanity we all share, regardless of 
     the color of our skin, the God to whom we pray, or whom we 
     choose to love.
       Bias-motivated acts of violence divide our communities, 
     intimidate our most vulnerable citizens, and damage our 
     collective spirit. The FBI reported 7,624 hate crime 
     incidents in 2007, the latest year for which the FBI has 
     compiled such data. Recent numbers also suggest that hate 
     crimes against certain groups, such as individuals of 
     Hispanic national origin, are on the rise. Between 1998 and 
     2007, more than 77,000 hate crime incidents were reported to 
     the FBI. That is nearly one hate crime every hour of every 
     day over the span of a decade.
       Most hate crimes in the United States are investigated and 
     prosecuted by our partners in state, local, and tribal law 
     enforcement, and this legislation will not change that 
     reality. Rather, this bill will give law enforcement 
     authorities at all levels the tools they need to effectively 
     investigate, prosecute and deter bias-motivated violence. 
     First, it will enable the Department of Justice to provide 
     our non-federal partners with technical, forensic, 
     prosecutorial, and financial assistance to bolster their hate 
     crimes enforcement efforts. Second, it will eliminate the 
     antiquated and burdensome requirement under existing Federal 
     law that prosecutors prove that a hate crime was motivated by 
     a victim's participation in one of six enumerated federally 
     protected activities. Third, it will expand coverage beyond 
     violent acts motivated by actual or perceived race, color, 
     religion, or national origin to those motivated by actual or 
     perceived gender, disability, sexual orientation and gender 
     identity.
       Although local law enforcement agencies will continue to 
     play the primary role in the investigation and prosecution of 
     hate crimes, federal jurisdiction is a necessary backstop. 
     Federal resources may be better suited to address crimes 
     involving multiple jurisdictions, and there may be times when 
     local authorities request Federal involvement.
       There also may be rare circumstances in which local 
     officials are unable or unwilling to bring appropriate 
     charges, or when prosecutions, even when successful, do not 
     fully serve the interests of justice. At the same time, there 
     are safeguards, both in the legislation and in the 
     Department's internal policies, to ensure that crimes will be 
     prosecuted at the Federal level only when necessary to 
     achieve justice in a particular case.
       Some have raised concerns that Congress lacks the 
     constitutional authority to enact this legislation, as well 
     as concerns that it could infringe on First Amendment rights. 
     The Department addressed these issues at length in a June 23, 
     2009, views letter to Senator Edward Kennedy. As we explain 
     in that letter, the legislation is constitutional and would 
     not infringe on First Amendment rights because it would 
     criminalize no speech or association, but only bias-motivated 
     violent acts resulting in bodily injury (or attempts to 
     commit such violent acts). Finally, the legislation is 
     carefully tailored to address violence targeting members of 
     communities that have suffered a long history of bias and 
     prejudice.
       This Administration strongly supports S. 909, the Matthew 
     Shepard Hate Crimes Prevention Act, and I urge its passage 
     without further delay. Now is the time to provide justice to 
     victims of bias-motivated violence and to redouble our 
     efforts to protect our communities from heinous acts of 
     violence based on bigotry and prejudice.
           Sincerely,
                                              Eric H. Holder, Jr.,
                                                 Attorney General.

  Mrs. HAGAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. HAGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________