[Congressional Record (Bound Edition), Volume 155 (2009), Part 17]
[Senate]
[Pages 23555-23571]
[From the U.S. Government Publishing Office, www.gpo.gov]




             DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2010

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of H.R. 3326, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 3326) making appropriations for the Department 
     of Defense for the fiscal year ending September 30, 2010, and 
     for other purposes.

  Pending:

       Coburn amendment No. 2565, to ensure transparency and 
     accountability by providing that each Member of Congress and 
     the Secretary of Defense has the ability to review 
     $1,500,000,000 in taxpayer funds allocated to the National 
     Guard and Reserve components of the Armed Forces.
       Barrasso amendment No. 2567, to prohibit the use of funds 
     for the Center on Climate Change and National Security of the 
     Central Intelligence Agency.
       Franken amendment No. 2588, to prohibit the use of funds 
     for any Federal contract with Halliburton Company, KBR, Inc., 
     any of their subsidiaries or affiliates, or any other 
     contracting party if such contractor or a subcontractor at 
     any tier under such contract requires that employees or 
     independent contractors sign mandatory arbitration clauses 
     regarding certain claims.
       Franken (for Bond/Leahy) amendment No. 2596, to limit the 
     early retirement of tactical aircraft.
       Franken (for Coburn) amendment No. 2566, to restore 
     $166,000,000 for the Armed Forces to prepare for and conduct 
     combat operations, by eliminating low-priority 
     congressionally directed spending items for all operations 
     and maintenance accounts.
       Sanders/Dorgan amendment No. 2601, to make available from 
     Overseas Contingency Operations $20,000,000 for outreach and 
     reintegration services under the Yellow Ribbon Reintegration 
     Program.
       Lieberman modified amendment No. 2616, relating to the two-
     stage ground-based interceptor missile.

  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Am I correct to assume that the first 30 minutes has been 
equally divided?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. INOUYE. I yield myself 10 minutes.
  At the beginning of the year, the chairman of the House 
Appropriations Committee and I announced earmark reforms that go far 
beyond the transparency requirements enacted in 2007.
  These reforms include a requirement for Members to post their earmark 
requests on their Web sites, make substantial reductions in the number 
and amount of earmarks compared to prior years' appropriations bills, 
and early and prompt committee announcements on which projects are 
funded in each of the annual appropriations bills.
  There has never been as much transparency in the earmark process as 
there is today. In most cases, the public has had several months to 
review their elected Representatives' requests for funding. The bill on 
the floor today has 200 fewer projects and $300 million less in funding 
for Member projects than last year's bill.
  I believe this is a considerable improvement to how Congress does its 
business.
  As chairman of the Appropriations Committee, I welcome any 
constructive suggestions on how to improve the operations and 
efficiency of the ways in which the committee accomplishes its vital 
work.
  However, those suggestions should not compromise the constitutional 
principle that the power of the purse is invested in the Congress, and 
not the executive.

[[Page 23556]]

  We must retain the checks and balances and keep the Congress and the 
executive as separate and co-equal branches of government.
  That is why I must oppose the amendment offered by the Senator from 
Arizona. It purports to increase transparency of congressional earmarks 
by subjecting all of them to full and open competition.
  In reality, it exempts congressional priorities from the normal, 
lawful process of how the Department of Defense purchases equipment, 
engages services, and develops new technologies.
  For example, we have included a number of earmarks for which the 
Department has negotiated contracts already in place. These contracts 
were negotiated in full compliance with the law.
  Simply because Congress added funds to accelerate important programs, 
such as the TB-33 towed sonar array, handheld radios for Special 
Operations Command, advanced radars for the F-15 fighter, and virtual 
interactive training equipment for National Guard units around the 
country, the McCain amendment would require a new competition to take 
place.
  This would disrupt important programs, delay procurement of valuable 
equipment, and cost the taxpayer more money.
  The McCain amendment also disregards the fact that sometimes the 
Pentagon gets it wrong. There are many programs which are now in use on 
the battlefield that would not be there if the Defense Department's 
views had prevailed years ago.
  Congress directed funds to the Predator unmanned aerial vehicle, 
lifesaving Chitosan bandages, and the V-22--programs that would not 
exist if Congress had not directed funds to those specific purposes.
  I ask my colleagues, What do they suppose would have happened to 
those programs if the Pentagon's bureaucracy had put these programs 
through the redtape required by the McCain amendment? Would the 
Predator be attacking our enemies in Afghanistan and Iraq? Or might it 
still be an exquisite, complex system that remains on the drawing board 
year after year?
  Ultimately the McCain amendment establishes two sets of acquisition 
laws: one for items requested by the President, which may be subject to 
full and open, limited or no competition at all; and another set of 
rules for items added by the Congress.
  The amendment rests on the faulty assumption that the Defense 
Department is unable to conduct oversight on congressionally directed 
spending, and that earmarks do not serve valid military purposes.
  In 2008, the Inspector General of the Department of Defense reviewed 
219 earmarks from the fiscal year 2007 Defense Appropriations Act.
  The Inspector General determined:

       The DOD personnel we interviewed and the respondents to our 
     data call said that DOD performs oversight of earmarks 
     identical to the oversight of other expenditures.

  Furthermore, of the 219 earmarks that were reviewed by the Inspector 
General, all but 4 were found to ``advance the primary mission and 
goals of the Department of Defense.''
  None of these four earmarks is contained in this year's bill. Even if 
they were, none of them would be competed under the McCain amendment 
because each of those earmarks was awarded to a nonprofit institution.
  Due to these shortcomings in the amendment which has been offered, I 
have proposed an alternative amendment.
  My amendment insures that each earmark added by Congress to benefit a 
for-profit entity shall be subject to the very same acquisition 
regulations that apply to items requested by the President in his 
annual budget request. This proposal applies the rules of the road 
equally to Congress and the President.
  The amendment I propose also contains the standard exceptions to 
competition, including small business set-asides. The McCain amendment, 
on the other hand, would eliminate these standard exemptions to 
competition for earmarks that support small businesses, minority-owned 
businesses, women-owned businesses, and service-connected disabled 
veteran-owned businesses.
  My amendment is a reasonable and fair approach to balancing the 
acquisition rules as they apply to congressional spending items and 
items requested by the President. It insures that all spending items 
that are funded in this bill, regardless of who proposed them, are 
subject to the same rules for competition. I urge my colleagues to 
support my amendment and oppose the McCain amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I thank the distinguished chairman of our 
committee, Senator Inouye, for his leadership and the bipartisan way he 
has gone about managing his responsibilities as chairman of the Defense 
Appropriations Subcommittee. The committee has carefully reviewed the 
President's budget request in public hearings, calling before the 
committee representatives of the various service departments and also 
opening the opportunity for any outside interest to come to talk about 
what our needs are. In my judgment it has been a very careful, prudent, 
and workmanlike way to approach this very solemn and important 
responsibility. So he has brought us to where we are today, scheduled a 
vote, finally, on final passage later today, providing funding for our 
national security agencies, the Department of Defense, the men and 
women who have volunteered to put themselves in harm's way, to wear the 
uniform of our country and to defend our country against aggression 
here and abroad.
  The Department is currently being funded by a continuing resolution. 
Although forcing the Department to operate under a temporary resolution 
is not a very good way to provide funding for a department charged with 
protecting our national security interests, it is the best we could do. 
I applaud the leadership of Senator Inouye for bringing a bill before 
us that will cover the entire Department of Defense for the remainder 
of the fiscal year, and for working with our counterparts in the House 
to begin resolving differences between the two bodies so that a bill 
can soon be presented to the President for signature.
  There has been much discussion about earmarks. The chairman raised 
the issue. Later this afternoon we will vote on an earmark-related 
amendment or two. There are those who have been striving to inject 
additional earmark reforms and other ways of doing business. We think 
we have carefully reviewed all the requests for spending, all of the 
provisions that permit spending in this bill, to be sure they are 
warranted, justified, in the national interest, and is not there only 
to serve some special interest or private interest of a Member of 
Congress.
  Congress has worked, the House and Senate together, to improve and 
make significant changes in the process, adding procedures to 
facilitate the closest possible scrutiny of congressionally directed 
spending. In addition, the Appropriations Committee has gone beyond 
those requirements and imposed additional disclosure requirements and 
limitations on earmarking. But I am not going to support any suggested 
changes that will take away from the Congress or diminish the power of 
the Congress specifically to carry out its responsibilities under the 
Constitution to direct spending.
  The committee has recommended, and the Senate has acted in its wisdom 
to approve or reject certain provisions of the bill. We have 
entertained all amendments. There is no closed rule. There is no 
specified number of amendments. There is no prohibition against any 
amendment of any Senator. So anyone who has a problem with this bill or 
any provision has had a right to say what it is, offer a change in the 
way of an amendment, and to have the Senate vote on it. That is the way 
we conduct business in the Senate on earmarks. It is an open process.
  There is nothing in the procurement history of the Department of 
Defense to support the notion that the Department has been infallible 
in cost effectively procuring solutions for our Defense Department 
needs, and doing so

[[Page 23557]]

in a fair, open, and evenhanded manner. The inspector general and GAO 
reports are replete with examples of poor judgment in Defense 
Department activities having nothing to do with congressionally 
directed spending. The GAO has upheld protests in recent years in which 
the Department did not perform its acquisition responsibilities in a 
lawful and appropriate manner.
  So there are a lot of checks and balances that are at work in the 
process, and I think we have to remind ourselves how thorough and 
diligent many people are in assuring that the things that are approved 
in this bill serve the public interest, not just the private interests 
or whims of Members of Congress.
  We have increased funding for the requirement that the Department of 
Defense identified over the summer for Mine Resistant Ambush Protected 
vehicles for our men and women serving in Afghanistan. We have imposed 
new requirements to help protect our soldiers in uniform and on the 
battlefield. We have included an additional $1.2 billion for the MRAP 
program, and it is above what the administration has requested. I think 
we have acted responsibly, and I strongly defend the decision the 
committee has made on this subject. I have no doubt including funding 
for the procurement of these additional vehicles will save American 
lives.
  Congressionally directed defense initiatives should be subject to the 
closest scrutiny of the Appropriations Committee, and of the 
legislative process as a whole including the authorizing procedure 
which precedes the appropriations process. The activities of the 
Department of Defense were carefully scrutinized by the Armed Services 
Committee, which shares responsibilities for making these decisions, as 
well as the Appropriations Committee. But I do not think Members of 
this body should feel ashamed or embarrassed to promote the passage of 
this bill. It is a good bill. It enhances our national security, and it 
supports the efforts we are making to protect the security interests of 
this great country.
  I thank the Senate for allowing me to make these comments and the 
distinguished Senator from Hawaii for being an active, responsible 
partner in the development of this legislation.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I thank my distinguished colleague from 
Mississippi, the vice chairman of this committee, for his generous 
remarks.
  I would like to point out to the Senate, this bill represents 
thousands of manhours of study, of research, of discussion, of debate. 
It contains spending of $636.6 billion. It is a huge amount. We take 
our vows and responsibilities very seriously. It might be interesting 
to note that this measure--this huge measure--was passed by the 
Appropriations Committee by a vote of 30 to 0. It is a bipartisan bill. 
It was passed unanimously. These things do not happen every day, Mr. 
President. It demonstrates and I think it illustrates what 
bipartisanship can do, what work can do, and what investigation can do.
  Senator Cochran and I are proud to present this measure to the 
Senate, to our colleagues, and we hope it will be passed accordingly.
  Mr. President, I would like to take this opportunity to discuss the 
Defense Subcommittee's recommendations regarding the fiscal year 2010 
missile defense programs. This bill supports the administration's 
request, stays at the authorized funding levels, and, most importantly, 
recommends changes that augment programs that this Congress has been 
championing year after year.
  The committee strongly supports the near-term missile defense 
programs, including ground-based missile defense, Aegis sea-based 
missile defense, and theater high altitude area defense. The committee 
added funding to the budget request in order to enhance each of these 
initiatives and ensure that the administration remains focused on these 
programs that are supporting the warfighter today.
  The committee provides an additional $50 million above the budget 
request for the ground-based missile defense, GMD, program. After the 
administration submitted its budget for GMD, the Department of Defense 
approved a new integrated master test plan for the Missile Defense 
Agency, MDA. This plan requires seven additional ground-based 
interceptors that were not part of the budget request.
  The Department informed the committee that additional funding was 
needed to sustain the production line in fiscal year 2010 in order to 
avoid costs associated with reconstituting the line in future years. 
The committee agreed with the Department and increased the funding.
  This bill also provides funds above the budget request that will 
support the administration's new missile defense architecture in 
Europe. I strongly endorse the new plan. This new approach will enhance 
the protection of our allies in Europe, U.S. forces and their families 
deployed abroad, and the U.S. homeland from ballistic missile attack 
sooner than the previous program.
  Some of my colleagues have stated that we are cancelling missile 
defense in Europe. Those indictments are simply inaccurate. Earlier 
this month, Secretary Gates responded to those types of criticisms as 
``either misinformed or misrepresenting the reality of what we are 
doing.'' I would have to agree with him.
  Under the prior administration's approach, the missile defense system 
would not be capable of protecting against Iranian missiles until at 
least 2017. Under the new plan, the more threatened areas of Europe and 
the U.S. forces stationed there will have protection by the end of 
2011. Given Iran's brazen missile tests late last month and its recent 
disclosure of a new, secret uranium enrichment facility, we need to get 
the right capability fielded sooner.
  The 10 interceptors that would have been emplaced in Poland under the 
previous plan were only capable of engaging five ballistic missiles 
from Iran. Any number greater than five overwhelmed the proposed 
system, thereby rendering the U.S. homeland, U.S. allies and partners, 
as well as our deployed troops and their families, vulnerable. 
Furthermore, these interceptors are not effective against short- and 
medium-range missiles that are proliferating around the world.
  The system proposed under the new plan is more robust. It will 
provide the U.S. and its allies with the protection necessary to 
counter today's real ballistic missile threats. The new plan is more 
responsive to the increasingly pervasive short- and medium-range 
missile threat and is adaptable to respond to longer range threats in 
the future.
  The new architecture focuses on using the proven standard Missile-3 
on Aegis ships and on the land together with additional sensor 
capability to provide more effective protection for ourselves and our 
allies.
  I am pleased to say that the Defense appropriations bill provides 
over $130 million in additional funding to support this new initiative:
  The current inventory of SM-3 missiles is woefully inadequate to 
outfit the fleet of Aegis ballistic missile defense ships. The 
committee adds nearly $60 million to procure an additional 6 SM-3 
interceptors to ensure that more missiles are available. This funding 
will bring production capacity up to the current level.
  The bill adds over $40 million to begin procurement of an additional 
TPY-2 radar that could be deployed to Southern Europe. This is 
precisely what the new plan calls for. The additional sensor coverage 
will support protection of our European allies and deployed forces. It 
will also enhance the defense of the United States since it can provide 
early and precise tracking data for the U.S. ground-based interceptors 
emplaced in Alaska and California.
  Finally, the committee provides an additional $35 million to continue 
development of SM-3 interceptors. This increased funding will 
accelerate the future upgrades of SM-3. These advancements are intended 
to increase the range and lethality of the SM-3 missiles on Aegis ships 
and the land-based component of the new European

[[Page 23558]]

architecture. This is a critical component to counter the threat of 
Iranian longer range missiles in the future.
  In order to stay at the authorized level for missile defense, while 
at the same time adding funds to robustly support the near-term missile 
defense programs and the new European missile defense plan, the 
committee had to make difficult trade-offs.
  The committee reduced programs that are technically challenging and 
uncertain to show promise for years to come.
  The committee also reduced funds that were not needed in fiscal year 
2010. For instance, several of my colleagues have expressed concern 
that this bill reduces funding for tests and targets by $150 million. 
Our committee strongly supports a robust test program for missile 
defense, but we do not support funding that cannot be executed next 
year. The committee reduced funds that are premature for fiscal year 
2010 and will not be required until later years. Let me explain.
  In fiscal year 2009, the Congress appropriated nearly $920 million 
for test and targets. According to data provided by the Missile Defense 
Agency, as of August 31, they have only spent $360 million of those 
funds. This means that the Agency will carry forward into fiscal year 
2010 about $560 million.
  The fiscal year 2010 request for test and targets is nearly $970 
million, a $50 million increase over last year's funding.
  The committee believes that a $150 million reduction will not impact 
the testing program in fiscal year 2010. With the unexpended funds from 
fiscal year 2009 and this committee's recommendation for fiscal year 
2010, MDA will have over $1.3 billion for testing purposes.
  Furthermore, some of my colleagues will say that the reduction in the 
test and target budget line will stop testing of the two-stage ground-
based interceptor that was intended for Poland under the prior 
administration's plan. That is simply not the case. Nowhere in this 
bill does the committee deny funding for the two-stage interceptor 
tests.
  Indeed, the bulk of funding for these two tests is not in the test 
and target line of the budget request. Most of the funds for these 
tests are being carried forward from fiscal year 2009 for the European 
third site and are included in the $50.5 million request in fiscal year 
2010 for the European capability.
  Let me close by saying that this bill responsibly and robustly funds 
the missile defense programs that Congress has supported for years. It 
provides additional funding for GMD, Aegis and TPY-2 radars. It 
provides funding that is strongly aligned with the administration's new 
plan for missile defense in Europe. I strongly urge my colleagues to 
support the committee's recommendation.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be charged equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  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 OFFICER. Is there objection?
  Without objection, it is so ordered.


                           Amendment No. 2588

  Mr. SESSIONS. Mr. President, I would like to speak about the Franken 
amendment if it is OK with the bill managers.
  The amendment would impose the will of Congress on private 
individuals and companies in a retroactive fashion, in validating 
employment contracts without due process of law. It is a political 
amendment, really at bottom, representing sort of a political attack 
directed at Halliburton, which is politically a matter of sensitivity.
  Notwithstanding, the Congress should not be involved in writing or 
rewriting private contracts. That is just not how we should handle 
matters in the Senate, certainly without a lot of thought and care, and 
without the support or at least the opinion of the Department of 
Defense.
  Senator Franken offered this amendment because he apparently does not 
like the fact there are arbitration agreements in employment contracts. 
I would suggest that is common all over America today.
  The Supreme Court of the United States has already resolved that 
arbitration agreements contained in employment contracts are not only 
valid but in most instances beneficial. In most instances, arbitration 
is considered to be beneficial. In fact, employees tend to win more 
arbitration disputes than they do lawsuits in court. So I think that is 
a matter we should consider.
  This is what Justice Kennedy on the Supreme Court wrote in Adams v. 
Circuit City:

       Arbitration agreements allow parties to avoid the cost of 
     litigation, a benefit that may be of particular importance in 
     employment litigation, which often involves smaller sums of 
     money than disputes concerning commercial contracts.

  So I believe that instead of eliminating arbitration, we should 
probably be looking for ways to utilize mediation and arbitration more 
in these kinds of disputes.
  Indeed, in a recent JAMS article published in June of 2009, entitled 
``Arbitrators Less Prone to Grant Dispositive Motions Than Courts,'' 
the author made the following points:

       [A]rbitrators are generally much more reluctant than courts 
     to grant dispositive motions--

  That is, to wipe out a lawsuit altogether--

     whether they are motions to dismiss a complaint or 
     arbitration demand, or motions for summary judgment. Indeed, 
     the rules of most major arbitration providers are silent 
     about whether an arbitrator may entertain dispositive 
     motions.

  It goes on to say:

       While courts have held that arbitrators have the inherent 
     power to grant dispositive motions, the lack of explicit 
     rules on the issue reflects the hesitance that most 
     arbitrators feel in granting dispositive motions without a 
     fact hearing.

  It goes on to say:

       There are at least three institutional reasons, which also 
     highlight some of the advantages of arbitration:

  The article says:

       First, while every litigant is entitled to appeal the grant 
     of a dispositive motion in federal or state court, a final 
     decision in arbitration is subject to far less review. 
     Moreover, appellant court review of such a grant is de novo, 
     with the allegations or evidence, as the case may be, read in 
     the light most favorable to the plaintiff. In addition, to 
     the extent that the trial court has interpreted the law, the 
     reviewing court is free to interpret and apply the law 
     differently.

  Basically, they are saying a person who has filed a complaint about 
their employment termination or agreement has a better shake of getting 
to court and having their matter heard than if they had filed a lawsuit 
because the strict rules of summary judgment often toss a lot of these 
lawsuits at an early stage.
  It goes on to say:

       The second difference between courts and arbitrators that 
     explains why courts are more likely to grant motions to 
     dismiss [an employee's lawsuit] is a differing level of 
     concern about discovery. In the U.S. Supreme Court's recent 
     decision in Twombly, for instance, ``the Court placed heavy 
     emphasis on the `sprawling, costly, and hugely time-
     consuming' discovery that would ensue in permitting a bare 
     allegation of an antitrust conspiracy to survive a motion to 
     dismiss, and expressed concern that such discovery'' will 
     push cost-conscious defendants to settle even anemic cases. 
     Discovery is much more limited in arbitrations and, thus, a 
     denial of a motion to dismiss is less likely to result in 
     such extensive discovery.
       Finally, some commentators and judges have noted that the 
     pressure of the increasing caseload that federal and state 
     courts have seen over the last two decades makes the courts 
     more tempted to dispose of cases on a motion, instead of 
     after a trial on the merits. . . . [arbitrators have] reacted 
     in precisely the opposite way--by constricting, not 
     expanding, the use of dispositive motions.

  In effect, allowing more cases to be fully heard.
  There is no doubt that contracts are a property right. We do not have 
any allegations that the contracts Senator Franken is trying to 
invalidate were imposed on employees or that fraud or coercion was 
involved in creating them.
  To invalidate these contracts would violate not only the due process 
rights of employers but the employees as

[[Page 23559]]

well. Employees could, indeed, benefit from arbitration rather than 
having to go to Federal court. The Congress is in no position to 
determine whether an employee negotiated for additional compensation in 
exchange for signing an arbitration agreement----
  The PRESIDING OFFICER. The minority time has expired.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to have one 
additional moment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I would conclude by saying that I do 
believe this is an important issue; that the Department of Defense is 
not asking for this. It is a reaction to some specific event, I assume, 
that has not justified changing Federal law. Arbitration in itself can 
be better for employees than filing an expensive lawsuit in Federal 
court. I believe we ought to at least dig into the issue far more in 
depth than we have before we up and pass such legislation as this.
  I thank the Chair and yield the floor.
  Mr. FRANKEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Hawaii controls the time.
  Mr. INOUYE. I yield.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. FRANKEN. Mr. President, article I, section 8 of our Constitution 
gives Congress the power to spend money for the welfare of our 
citizens. Because of this, Chief Justice Rehnquist wrote:

       Congress may attach conditions on the receipt of Federal 
     funds, and has repeatedly employed that power to further 
     broad policy objectives.

  That is why Congress could pass laws cutting off highway funds to 
States which didn't raise their drinking age to 21. That is why this 
whole bill is full of limitations on contractors--what bonuses they can 
give and what kinds of health care they can offer. The spending power 
is a broad power, and my amendment is well within it.
  But don't take my word for it. I asked three of our Nation's top 
constitutional scholars--Akhil Amar, Laurence Tribe, and Erwin 
Chemerinsky, authorities regularly cited by everyone from Justice 
Scalia to Justice Stevens--what they thought about this amendment. Let 
me read their joint conclusion from this letter, which I ask unanimous 
consent to have printed in the Record:

       Congress' power of the purse is expansive. S.A. 2588 falls 
     squarely within its purview, and clearly does not infringe 
     any constitutional prohibition.

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Dear Members of the United States Senate: Pursuant to a 
     request from Senator Franken, we have reviewed his pending 
     amendment (S.A. 2588) to the Department of Defense 
     Appropriations Act of 2010 (H.R. 3326). Senator Franken 
     invited us to consider whether any aspect of this amendment 
     could arguably be found unconstitutional. We are confident 
     that S.A. 2588 is well within the bounds of Congress' power 
     under the Spending Clause. We are also confident that it 
     raises no separate constitutional concerns.
       The Constitution empowers Congress to ``pay the Debts and 
     provide for the common Defence and general Welfare of the 
     United States.'' Art. I, Sec. 8, cl. 1. As Chief Justice 
     Rehnquist wrote in South Carolina v. Dole, 483 U.S. 203, 206 
     (1987), ``[i]ncident to this power, Congress may attach 
     conditions on the receipt of federal funds, and has 
     repeatedly employed the power `to further broad policy 
     objectives[.]''' In South Carolina v. Dole, for example, the 
     Supreme Court upheld the National Minimum Drinking Age Act, a 
     law that limited federal highway funds to states that did not 
     adopt a minimum drinking age of twenty-one. This amendment is 
     precisely the kind of ``general welfare'' legislation that 
     the Spending Clause, as interpreted by South Carolina v. 
     Dole, would permit.
       Of course, the Spending Clause does not permit actions that 
     are barred by other provisions of the Constitution. See, 
     e.g., Buckley v. Valeo, 424 U.S. 1, 91 (1976) (per curiam). A 
     review of the proposed measure reveals no such barriers.
       This measure could conceivably impair government 
     performance on certain federal contracts. The Contracts 
     Clause of the Constitution, however, which prohibits passage 
     of any ``Law impairing the Obligation of Contracts,'' 
     explicitly and exclusively applies to the states, not the 
     federal government. See Art. I, 10, cl. 1 (``No State shall . 
     . .''). Hence, the Contracts Clause could not provide the 
     basis for a constitutional challenge to this amendment.
       Similarly, S.A. 2588 is not remotely a Bill of Attainder. 
     Instead of naming or describing a specific group of entities 
     to be covered, the amendment erects a ``generically 
     applicable rule'' for de-funding: the practice of requiring 
     mandatory arbitration of certain claims. See United States v. 
     Brown, 381 U.S. 437, 450 (1965). Moreover, denial of federal 
     funding to an entity that declines to bring itself into 
     compliance with purely prospective funding guidelines is a 
     far cry from the punitive conduct that the Bill of Attainder 
     clause was written to prohibit. If anything, while the 
     ``distinguishing feature of a Bill of Attainder is the 
     substitution of a legislative for a judicial determination of 
     guilt,'' this amendment empowers the courts as the only fora 
     for the resolution of certain claims. De Veau v. Braisted, 
     363 U.S. 144, 160 (1960).
       The Ex Post Facto Clause is also unavailing. Independent of 
     the fact that the restriction of funding in S.A. 2588 is 
     conditioned on present or future conduct, it is long-settled 
     that the Ex Post Facto Clause applies exclusively to criminal 
     penalties. See Calder v. Bull, 3 U.S. 386 (1798).
       Nor could it be plausibly argued that S.A. 2588 effects an 
     unconstitutional ``regulatory taking'' without just 
     compensation under the Fifth Amendment Takings Clause. The 
     Takings Clause addresses only the physical seizure of private 
     property and the regulatory destruction of particularly 
     identifiable property rights or interests--air rights, mining 
     rights, intellectual property, and the like. While a 
     plurality of the Supreme Court has once voted to strike down 
     federal legislation under the Takings Clause even where the 
     statute did not seize any identifiable piece of private 
     property or render worthless any particular property 
     interest, it has done so only where the law in question 
     imposed a ``substantial and particularly far reaching'' 
     retroactive monetary liability that unforeseeably brought 
     about a ``considerable financial burden.'' Eastern 
     Enterprises v. Appel, 524 U.S. 498, 529-537 (1998). S.A. 
     2588, in contrast, is entirely unrelated to property, imposes 
     no financial liability, and is in any event of purely 
     prospective effect. Moreover, this measure cannot be said to 
     impose on a narrowly targeted group burdens that in ``justice 
     and fairness,'' Andrus v. Allard, 444 U.S. 51, 65 (1979), 
     ought to be borne by the public as a whole--the singular vice 
     of takings of private property without ``just compensation.''
       Someone unfamiliar with the jurisprudence of the past six 
     decades might also allege that S.A. 2588 would violate 
     substantive due process. However, the post-Lochner Supreme 
     Court has consistently and wisely expressed an unwillingness 
     to invalidate economic legislation on any such basis so long 
     as it is at least arguably rational. See, e.g., Ferguson v. 
     Skrupa, 372 U.S. 726, 731 (1963). In fact, the Supreme Court 
     in the post-1937 era has invalidated economic legislation on 
     the basis of substantive due process only where the 
     legislature has acted in an indisputably ``arbitrary and 
     irrational'' manner. Usery v. Turner Elkhorn Mining Co., 428 
     U.S. 1, 15 (1976). This amendment does not even remotely fall 
     within that narrow prohibition.
       Congress' power of the purse is expansive. S.A. 2588 falls 
     squarely within its purview, and clearly does not infringe 
     any constitutional prohibition.
           Respectfully submitted,
     Akhil Reed Amar,
       Sterling Professor of Law, Yale Law School.
     Erwin Chemerinsky,
       Founding Dean, University of California at Irvine School of 
     Law.
     Laurence H. Tribe,
       Carl M. Loeb University Professor, Harvard Law School.

  Mr. FRANKEN. Mr. President, I also asked the Congressional Research 
Service, Congress's nonpartisan research arm, to take a look. They also 
did not find any cause for constitutional concern.
  Senator Sessions says my amendment violates the due process clause. 
But as Professors Amar, Chemerinsky, and Tribe explain in their letter, 
the Supreme Court hasn't struck down economic laws on these grounds 
since 1937--unless the legislation is ``arbitrary and irrational.'' 
Their conclusion: ``This amendment does not even remotely fall within 
that narrow prohibition.''
  Let me be clear. This amendment does not single out any contractor. 
The text of the amendment does not list a single contractor by name, 
and if you read the amendment, you would know it. This amendment would 
defund any contractor who refused to give the victims of rape and 
discrimination their day in court.
  Let me tell my colleagues how I think this amendment does speak to 
the Constitution. The Constitution

[[Page 23560]]

gives everybody the right to due process of law. Today, defense 
contractors are using fine print in their contracts to deny women such 
as Jamie Leigh Jones their day in court. But it is not just Jamie Leigh 
Jones. This isn't about one instance, as Senator Sessions said. This is 
about many women across this country who have been victims of sexual 
assault and rape in Iraq and who have been hired by contractors and who 
have been forced to arbitrate by contractors. So women are not given 
their day in court. Instead, they are forcing them behind the closed 
doors of arbitration where the Federal Rules of Evidence don't apply, 
where decisions are binding and secret, and where decisions are issued 
by a private arbitrator often paid by the company itself.
  This amendment does not seek to eliminate arbitration. It seeks to 
eliminate arbitration in cases of rape and sexual assault. The 
victim's----
  The PRESIDING OFFICER. The majority time has expired.
  Mr. FRANKEN. I ask unanimous consent for another 20 seconds.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. FRANKEN. Mr. President, the victims of rape and discrimination 
deserve their day in court. Congress plainly has the constitutional 
power to make that happen. I ask my colleagues to vote in support of my 
amendment.
  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote in relation to 
amendment No. 2567 offered by the Senator from Wyoming, Mr. Barrasso.
  Mr. INOUYE. 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.
  Mr. COBURN. Mr. 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. 2566

  Mr. COBURN. Mr. President, later we are going to vote on an amendment 
I have that is a prohibition on taking earmarked money from the 
operation and maintenance account of our armed services. Operation and 
maintenance--not procurement, not research, but operation and 
maintenance. The very key thing that funds the ability of our 
warfighters and our Defense Department to do what they do is being used 
to pay for some very good projects, some not very good projects, most 
of which all are parochial; in other words, directed toward State 
benefit, through the operation and maintenance account.
  Last year, I would remind my colleagues, the Navy ran out of 
operation and maintenance money. We had to supplement it. Why did we 
supplement it? Because we took their money last year and put it into 
earmarks instead of giving the Navy what it needed. I would remind the 
people listening to these words that when we do a supplemental, we 
charge the money to our kids and our grandkids. We don't have to live 
within the budget parameters.
  So as we vote for this, earmark is another question. The question is: 
Where do you take the money when you go to earmark? When we take it 
from the very things that support, equip, and protect the people who 
are defending this country, and we put them at risk by not having the 
amount of dollars that are necessary for that, I think we are sending a 
terrible signal not just to the American people but to our troops that 
our parochial desires are more important than their well-being.
  When the amendment comes up, I will defer saying anything else so we 
can move on. But the American people need to know. This is a couple 
hundred million bucks that is going to be taken away from the very 
necessary things they need. There are a couple of other gimmicks in 
here that actually lessen that account that allow for other things to 
be done in terms of not looking into inflation correctly, but we will 
pass on those amendments. But the fact is we ought not be playing games 
with the money that goes to protect our troops.
  With that, I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. INOUYE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.


                           Amendment No. 2567

  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes of debate, equally divided, on the Barrasso amendment No. 2567.
  The Senator from Wyoming is recognized.
  Mr. BARRASSO. Mr. President, my amendment is simple. It prevents the 
Central Intelligence Agency from using any funds from the fiscal year 
2010 Defense Appropriations bill to create or operate a center on 
climate change and national security.
  To me, this center is redundant to activity already conducted by the 
CIA and other Federal agencies. There is no reason to create an 
additional center to do work already being done.
  We don't need to duplicate the work of others. Leave the task of 
gathering and analyzing climate change information to the agencies that 
do that work. Let them pass that information on to the analysts at the 
CIA to incorporate it into their assessments.
  The experts at the CIA should focus work on foreign intelligence 
gathering to prevent the next terrorist attack. That is what they are 
trained and equipped to do.
  I urge adoption of the amendment.
  Mr. BOND. Mr. President, I rise today to express my support for the 
amendment, introduced by Senator Barrasso, to strike the funding for 
the Central Intelligence Agency's Center on Climate Change and National 
Security. Climate change and the role of the intelligence community has 
been the subject of many lively discussions before the Select Committee 
on Intelligence.
  As the vice chairman of this committee, I have worked with the 
chairman, Senator Dianne Feinstein, to resolve many issues of 
importance to the intelligence community. Unfortunately, on this issue 
of climate change, I have and will continue to disagree respectfully 
with the chairman.
  I recognize that many Members on both sides of the aisle have strong 
beliefs about global climate change, its causes, and its possible 
consequences. Regardless of how you come down on this issue, however, 
our intelligence agencies are not the appropriate venue for dealing 
with it.
  Members who support the creation of this center at CIA have cited the 
national security implications of global climate change. I agree that 
global climate change could have national and global security 
implications and that elements of the U.S. Government and private 
sector should be studying it, but the intelligence community is not one 
of those elements. Other government entities, such as the Environmental 
Protection Agency and the National Oceanic and Atmospheric 
Administration, are far better suited to study this issue.
  The intelligence community is not a think tank. Its job, put simply, 
is to steal secrets and provide analysis of those secrets. There are no 
secrets to steal or to analyze when studying current weather patterns 
and estimating the geopolitical effects of an event 20 or more years in 
the future as this new CIA center would be asked to do.
  The Senate Intelligence Committee is constantly reminded by various 
commissions, and the intelligence community itself, that our Nation's 
intelligence analysts are overtasked, overworked, and do not have 
adequate time to devote to long-term assessments, even on the important 
countries and issues they currently cover on a daily basis, such as 
terrorism, proliferation, Iran, Iraq, and China.
  To those who support this center, I would ask a simple question: As 
we face continued threats in Afghanistan, Iraq, and Iran, which 
analysts are going to be pulled from their current responsibilities to 
analyze the implications of climate change? Adequately

[[Page 23561]]

covering all of the geopolitical implications of global climate change 
would require analysis on dozens of countries by analysts who are 
familiar with some or all of those countries. In short, it would 
require drawing on a substantial part of our analytic corp.
  Can we really afford to have these analysts redirected from their 
current responsibilities to work on global climate change, especially 
when our nation is at war? I strongly doubt that terrorist leaders or 
rogue nations will stop plotting against us while our analysts take 
time off to ponder the potential implications of global climate change.
  Through my many discussions with Senator Feinstein, I am familiar 
with the motivation for this center. While I will vote in favor of 
Senator Barrasso's amendment, I would be willing to work with Senator 
Feinstein and others to find alternative avenues to obtain the 
information being sought through this center.
  The bottom line is this--at a time when our Nation is fighting wars 
on two fronts, terrorists continue to plot attacks on our homeland, and 
the threat of proliferation grows, we cannot afford for our overtaxed 
intelligence agencies to take time off to ponder climate change.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. INOUYE. Mr. President, I rise in opposition to the Barrasso 
amendment.
  The mission of the CIA's Center for Climate Change and National 
Security is fully consistent with that of the intelligence community.
  Creating this center does not require any additional CIA resources. 
It rearranges ongoing programs within the CIA so that existing funding 
can be more prudently spent.
  The work of this center will not divert resources from other 
missions. It will not divert case officers or the tasking of 
satellites.
  This center will continue in the traditional role of the intelligence 
community to support policymakers on national security issues related 
to climate change.
  Therefore, I urge my colleagues to oppose this amendment.
  I yield the floor.
  Mr. BARRASSO. Mr. President, I ask for the yeas and nays on my 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Pennsylvania (Mr. Specter) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 38, nays 60, as follows:

                      [Rollcall Vote No. 307 Leg.]

                                YEAS--38

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Voinovich
     Wicker

                                NAYS--60

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2567) was rejected.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized.
  Mr. COCHRAN. I move to table the motion to reconsider.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oklahoma is recognized.


                    Amendment No. 2618, as Modified

  Mr. INHOFE. I ask unanimous consent to call up amendment No. 2618. I 
send a modification to the desk for its consideration. It would not 
require a rollcall vote.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Oklahoma [Mr. Inhofe] proposes an 
     amendment numbered 2618, as modified.

  The amendment is as follows:

    (Purpose: To ensure sustainment, readiness, and acquisition of 
  ammunition for all United States military services in order to meet 
             long term peacetime and wartime requirements)

       On page 245, between lines 8 and 9, insert the following:
       Sec. 8104. None of the funds appropriated or otherwise made 
     available by this Act may be used by the Secretary of the 
     Army to transfer by sale, lease, loan, or donation 
     government-owned ammunition production equipment or 
     facilities to a private ammunitions manufacturer until 60 
     days after the Secretary submits a certification to the 
     congressional defense committees that the transfer will not 
     increase the cost of ammunition procurement or negatively 
     impact national security, military readiness, government 
     ammunition production or the United States ammunition 
     production industrial base. The certification shall include, 
     the Secretary of the Army's assessment of the following:
       (1) A cost-benefit risk analysis for converting government-
     owned ammunition production equipment or facilities to 
     private ammunition manufacturers, including cost-savings 
     comparisons.
       (2) A projection of the impact on the ammunition production 
     industrial base in the United States of converting such 
     equipment or facilities to private ammunition manufacturers.
       (3) A projection of the capability to meet current and 
     future ammunition production requirements by both government-
     owned and private ammunition manufacturers, as well as a 
     combination of the two sources of production assets.
       (4) Potential impact on national security and military 
     readiness.

  Mr. INHOFE. Mr. President, back in August of 2008 there was a 
directive that we should try to privatize as many of the Army Corps as 
possible. All this does is say, before any more are privatized, the 
Army should have to certify that--two things--it would not increase the 
cost or negatively impact national security. It has been cleared on 
both sides. I urge its adoption.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is on agreeing to the amendment.
  The amendment (No. 2618), as modified, was agreed to.
  Mr. COCHRAN. I move to table the motion to reconsider.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COCHRAN. I thank the Chair.


                           Amendment No. 2588

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote in relation to 
amendment No. 2588, offered by the Senator from Minnesota, Mr. Franken.
  The Senator from Minnesota is recognized.
  Mr. FRANKEN. Mr. President, when she was 19, Jamie Leigh Jones was 
drugged, gang-raped, and locked in a shipping container while working 
for KBR in Iraq. She tried to sue, but KBR pointed to the fine print in 
her contract and forced her into arbitration. Jamie Leigh, who came to 
Washington for this vote, has spent 3 years fighting just to get her 
day in court.
  This is not just Jamie Leigh's story. It is the story of Mary 
Kineston of Ohio, Pamela Jones of Texas, and women around this country.
  Fifty-eight groups across this country have taken a stand by 
supporting my amendment. As the National Alliance to End Sexual 
Violence said:

       Asking a victim to enter arbitration with someone who raped 
     her, or with a company that wouldn't protect her, is 
     outrageous.

  I agree. Victims of sexual assault and discrimination at least 
deserve their day in court. My amendment would make sure all military 
contractors, not just KBR, give victims that basic right.

[[Page 23562]]

  I urge you to support this amendment.
  Mr. NELSON of Florida. Mr. President, in December 2007, I became 
involved in an issue that I continue to work on today. The issue is our 
government's failure to prosecute multiple incidents of sexual assault 
against American civilians working alongside our military in Iraq and 
Afghanistan.
  After surviving sometimes brutal attacks, these civilians too often 
found themselves in a legal blackhole. No one could tell them how to 
report the crime. No one knew who should investigate, putting precious 
time and evidence at risk. And perhaps worst of all, no one could 
guarantee their personal safety. Their attackers, meanwhile, usually 
fell outside the Uniform Code of Military Justice, UCMJ, the legal code 
that our men and women in uniform must obey, and beyond the effective 
reach of our criminal laws.
  Over the last 2 years, I have been in frequent contact with the 
Departments of Defense, State, and Justice to ascertain the scope of 
this problem. Although these agencies have, on the whole, cooperated 
with my requests, I am not satisfied that we have a full picture of the 
number of sexual assaults perpetrated against Americans--contractors 
and military--in Iraq and Afghanistan. Nor do I believe that the 
respective departments have clear policies in place to address crimes 
committed by and against U.S. contractors serving in the war zones.
  In April 2008, I chaired a hearing in the Foreign Relations Committee 
that included harrowing testimony from Mary Beth Kineston and Dawn 
Leamon, who were former civilian contractors for Kellogg Brown & Root, 
better known as KBR, which is a former subsidiary of Halliburton. These 
patriots testified that they were sexually assaulted while working for 
KBR in Iraq. In written testimony submitted to the committee, another 
woman, Jamie Leigh Jones, wrote of being drugged and gang-raped by her 
coworkers, also while working for KBR in Iraq. When she reported the 
crime to her superiors, Ms. Jones was locked in a shipping container. 
Not until her father was able to contact Congressman Ted Poe was Ms. 
Jones rescued from captivity.
  When similar crimes are committed within the United States, on a 
permanent military base, or at one of our embassies overseas, the 
authority and responsibility to prosecute these crimes is clear. Yet 
because these crimes were committed abroad and the victims were 
civilians, their stories never see the light of day. There is no jury, 
no public record and no transcript.
  Additionally, in many cases the victims' employer has moved for such 
cases to be heard in private arbitration. At the hearing, Dawn Leamon 
stated that there was an arbitration clause in the employment agreement 
she signed, and that KBR used that clause to prevent her from seeking 
justice in a court of law. These arbitration clauses, which have become 
all too common, protect the companies from accountability when a crime 
occurs.
  In response to the hearing and testimony of these courageous women, I 
offered an amendment in mark-up of the 2009 National Defense 
Authorization Act that later became law, Public Law 110-417. That 
amendment required government contractors to report crimes committed by 
or against employees in Iraq or Afghanistan to the appropriate U.S. 
government authorities. The law now requires contractors to have in 
place resources to assist victims and witnesses of crimes, so that 
there is a place to go for help. I also attempted to include a 
provision that would prevent contractors from requiring employees to 
enter into mandatory arbitration contracts.
  I am pleased that Senator Franken has taken an interest in this 
important issue, and I am cosponsoring the Franken amendment, Senate 
amendment No. 2588, which denies funding to Department of Defense 
contractors who continue to use mandatory arbitration clauses to force 
sexual assault victims into arbitration. If adopted, this important 
amendment would close the legal loophole that prevents the victims of 
sexual assault from getting the justice they deserve. It is my hope 
that justice for these women will encourage reform to the entire 
system.
  I encourage my colleagues to join us in unanimously adopting this 
amendment. It is my hope that such a showing of support will urge its 
adoption in the final conference bill. It is imperative that this 
provision become law.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, first of all, with regard to this 
lawsuit, although it took some time, the court, the Fifth Circuit, has 
ruled that this matter is not arbitrable and this lady is entitled to a 
court trial because it goes outside normal employment matters.
  The Department of Defense let me know to oppose this amendment. There 
are a number of reasons: because it goes far beyond the issue raised by 
my colleague from Minnesota. It eliminates arbitration for any claim 
under title VII of the Civil Rights Act, any claim resulting from 
negligent hiring, negligent supervision or retention of an employee--
virtually any employment dispute that is now resolvable under 
arbitration, which the U.S. Supreme Court has said is good. Statistics 
show that employees get final judgment and actually win more cases 
under arbitration than they do going to the expense of a Federal court 
trial.
  I think we should listen to the Department of Defense and vote no on 
this amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  Mr. FRANKEN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Pennsylvania (Mr. Specter) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 68, nays 30, as follows:

                      [Rollcall Vote No. 308 Leg.]

                                YEAS--68

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Grassley
     Hagan
     Harkin
     Hatch
     Hutchison
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     LeMieux
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--30

     Alexander
     Barrasso
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Gregg
     Inhofe
     Isakson
     Johanns
     Kyl
     McCain
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2588) was agreed to.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote.
  Mr. BOND. I move to lay that motion upon the table.
  The motion to lay upon the table was agreed to.


                           Amendment No. 2596

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate, equally divided, prior to a vote in relation to 
amendment No. 2596 offered by the Senator from Missouri, Mr. Bond.
  Mr. BOND. Mr. President, the January report of the Governmental 
Accountability Office said the Air Force had a couple of major 
challenges in sustaining the air sovereignty alert capabilities; that 
is, the air structure that keeps our homeland safe.
  They say the Air Force has not developed plans because it is focused 
on

[[Page 23563]]

other priorities. Retiring these planes would result in a lack of 
aircraft to meet the vital ASA mission. And 16 of the 18 sites across 
the Nation are manned by Air National Guard.
  Senator Leahy and I, as cochairs, have introduced this amendment, 
which is supported by the Guard, which says that we do not retire any 
more fourth-generation aircraft until the Secretary tells the Congress 
how it is going to ensure the capability of the ASA mission.
  Mr. LEAHY. Mr. President, I rise in support of the amendment offered 
by Senator Bond to temporarily suspend the retirement of tactical 
aircraft by the U.S. Air Force.
  For months, Senator Bond and I as co-chairs of the Senate National 
Guard Caucus have repeatedly questioned Air Force and Department of 
Defense leadership about what it was doing to address a looming 
shortfall in available aircraft for Air National Guard Units. The Air 
Force acknowledges this issue and I know has spent a great deal of time 
studying options on how to address the shortfall.
  But, after numerous requests at hearings and briefings for a concrete 
plan, at the start of the fiscal year 2010 fiscal year today, we still 
do not have a plan.
  That is why Senator Bond and I have proposed an amendment that 
temporarily suspends the retirement of tactical aircraft until the 
Secretary of the Air Force provides Congress with a roadmap that 
resolves the looming tactical aircraft shortfall.
  I hope this amendment prompts the Air Force to conclude its 
deliberations so that our National Guard and Reserves never get to 
point where there are units that have the best trained pilots and 
technicians in the world but there are no aircraft on the tarmac.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. I have no opposition to this amendment, nor am I aware of 
anyone on our side who opposes this. I am prepared for a voice vote.
  Mr. BOND. Mr. President, there may be a request for a vote on this 
side.
  There is objection on this side to having a voice vote.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second. The question is on agreeing to the 
amendment. The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), and the Senator from Pennsylvania (Mr. Specter) are necessarily 
absent.
  The PRESIDING OFFICER (Mr. Kaufman). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 91, nays 7, as follows:

                      [Rollcall Vote No. 309 Leg.]

                                YEAS--91

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

                                NAYS--7

     Coburn
     Graham
     Gregg
     Johanns
     Kyl
     McCain
     Sessions

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2596) was agreed to.
  Mr. INOUYE. Mr. President, I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2565

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote in relation to 
amendment No. 2565 offered by the Senator from Oklahoma, Mr. Coburn.
  The Senator from Oklahoma.
  Mr. COBURN. This is a simple amendment. I am appreciative of the fact 
that the National Guard and Army Reserve will get additional funds. All 
the amendment says is, run that by the Defense Department. They don't 
get to approve it or disapprove it, but they ought to get to see it. 
And so should we. Every one of us has National Guard units. Many of us 
have Army Reserve units. Why should we not have access to information 
as to how they will spend the money? It is about transparency. The 
American people ought to see how they will spend the money. I want to 
see how it will be spent in Oklahoma. All Senators should be able to 
see how it is spent. The Secretary of Defense will not be able to stop 
it. It only says he is knowledgeable and responsible, when utilizing 
those forces overseas, for their deployment and equipment.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, the Coburn amendment, which would impose an 
additional layer of bureaucracy to the National Guard and Reserve's 
spending decisions, is unnecessary and burdensome. This proposal 
mandates a new component of review and assessment in a process where a 
high level of accountability already exists.
  As is already required by law, the Assistant Secretary of Defense for 
Reserve Affairs sends reports to Congress, including the four 
committees which oversee defense spending.
  These reports explain, in detail, how the various Reserve component 
chiefs have determined to spend the funds provided.
  The Guard plays a unique role in our country; they defend us here at 
home and, as has been the case all too often in recent years, they 
fight for us abroad. This special status directly effects the Guard's 
spending priorities, and in recent years they have focused on buying 
``dual use'' equipment that is good for both foreign war and for 
domestic missions.
  Based on this reality, it is important that Congress maintain the 
Reserve component chief's level of influence so they can spend funds 
based on their most urgent requirements and unique needs.
  Finally, creating statutory requirement for an additional ``thorough 
review,'' involving the Secretary of Defense and other officials, will 
likely delay access to these funds. At a time when our Guard is called 
upon more frequently at home and is being relied upon so heavily in 
Iraq and Afghanistan, to risk underresourcing them and not providing 
the full support of Congress is irresponsible and negligent.
  I call upon my colleagues to support the Guard and Reserves and 
reject this amendment.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 2565.
  The clerk will call the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), and the Senator from Pennsylvania (Mr. Specter) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 28, nays 70, as follows:

                      [Rollcall Vote No. 310 Leg.]

                                YEAS--28

     Barrasso
     Bunning
     Burr
     Carper
     Chambliss
     Coburn
     Collins
     Corker
     DeMint
     Ensign
     Enzi
     Graham
     Gregg
     Hatch
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     McCain
     McCaskill
     McConnell
     Murkowski
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

[[Page 23564]]



                                NAYS--70

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Burris
     Cantwell
     Cardin
     Casey
     Cochran
     Conrad
     Cornyn
     Crapo
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Grassley
     Hagan
     Harkin
     Hutchison
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2565) was rejected.
  Mr. REID. Mr. President, I move to reconsider the vote.
  Mr. INOUYE. I move to lay that motion on the table. The motion to lay 
on the table was agreed to.


                           Amendment No. 2566

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes equally divided prior to a vote in relation to amendment No. 
2566, offered by the Senator from Oklahoma, Mr. Coburn.
  The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I spoke earlier on this amendment and will 
yield my time to the Senator from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, this is a pretty simple amendment. It 
prohibits the spending of $165 million on earmarks. We would free up 
$165 million and return it to the general pool of operation and 
maintenance funding. So it is very clear the administration, on the 
operation and maintenance account, says the bill cuts the O&M account, 
and this restores some of it.
  I again would like to point out that operation and maintenance is one 
of the most critical aspects of our defense of this Nation. This 
amendment simply prohibits expenditures on any earmarks in the 
operation and maintenance account.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, the Senator from Oklahoma has proposed an 
amendment to strip the Defense bill of the earmarks in the O&M 
appropriations. As I have said previously, the Defense Subcommittee 
reviews the entire budget and adjusts funds based on that review. Funds 
in the O&M budget are not reduced with the intent to fund earmarks.
  Earmarks in O&M provide additional funds to repair facilities and 
enhance security on our military bases, augment maintenance efforts, 
and equip our military members with personal protection devices.
  During this debate, the Senator from Oklahoma has spoken about his 
concerns to provide adequate funding for the National Guard. I share 
that concern. I would point out that if this amendment is adopted, it 
would decrease funding in excess of $75 million provided by this 
subcommittee to National Guard units in nearly 20 States.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. INOUYE. I hope my colleagues will vote against it.
  Mr. COBURN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Pennsylvania (Mr. Specter) are necessarily absent.
  The result was announced--yeas 25, nays 73, as follows:

                      [Rollcall Vote No. 311 Leg.]

                                YEAS--25

     Barrasso
     Bayh
     Bunning
     Burr
     Chambliss
     Coburn
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Feingold
     Grassley
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McCaskill
     Risch
     Sessions
     Thune
     Vitter

                                NAYS--73

     Akaka
     Alexander
     Baucus
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feinstein
     Franken
     Gillibrand
     Graham
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2566) was rejected.
  Mr. INOUYE. Mr. President, I move to reconsider the vote and to lay 
that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.


                           Amendment No. 2601

  Mr. SANDERS. Mr. President, my amendment is supported by Senators 
Dorgan and Leahy, the National Guard Association, the U.S. Air Force 
Association, and the U.S. Army and Reserve Officers Association.
  This is a simple amendment. Many of the men and women are coming home 
from Iraq and Afghanistan with PTSD and TBI. While the DOD and the 
Veterans' Administration have done a good job in providing services to 
the men and women, not everybody is accessing the services.
  This amendment provides $20 million for outreach efforts so that 
State by State we can send people out to talk to them and make sure 
they understand the facilities that are there and available to them to 
help them with PTSD and TBI.
  My understanding is that this amendment has been accepted. I thank 
the chairman and the ranking member.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. INOUYE. Mr. President, there is no opposition to the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to the amendment.
  The amendment (No. 2601) was agreed to.
  Mr. INOUYE. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.


                     Senator Baucus's 11,000th Vote

  Mr. REID. Mr. President, if I can have the attention of the Senate, I 
had a chance to go to Montana with Senator Baucus. I had never been 
there. Nevada is a huge State area-wise, but Montana is twice as big as 
Nevada. We are the seventh largest State and Montana is the fourth 
largest. I can remember flying in that airplane and thinking it is 
unbelievable how big that State is. Well, that is kind of like Max 
Baucus. He always does things in the form of a marathon. As I have 
indicated, Montana is the fourth largest State in the Union. It is 
called Big Sky Country, and it is. It is such a beautiful State.
  The first time Max ran statewide, he walked the State of Montana--820 
miles he walked. I was always very satisfied that I was a marathoner, 
but I talked to Baucus, and, of course, he has run more of them than I 
have and faster than I have. I dropped the subject quickly when I 
learned he isn't satisfied with a marathon that is 26\1/4\ miles. He 
runs 50 miles. That shows the grit this man has. During one of his 50-
milers, at 8 miles he fell very hard. He hit his head. There was blood 
all over. But he got up and ran another 42 miles in that race. He had 
hurt himself. A

[[Page 23565]]

few weeks later, he had to be hospitalized as a result of that injury 
he suffered falling down. So it is pretty easy to understand why this 
marathon he has been involved in with health care has been fairly 
simple compared to some in which he has been involved.
  I am here to congratulate Max Baucus on the next vote, which will be 
his 11,000th vote in the Senate. He has had a distinguished career in 
the House and in the Senate. He has been chairman of the Environment 
and Public Works Committee and is now chairman of the Finance 
Committee.
  I have such great respect for Senator Baucus. There are a lot of 
career highlights, and I could list a lot of them. But for me, the most 
significant thing he did is not a bill you will see in the archives; it 
is his having stepped forward at a time when nobody thought it could be 
done, and in the face such opposition, he helped stop the privatization 
of Social Security. That was done by a lot of people, but it could 
never have been done without Max Baucus.
  The people of Montana love Max Baucus because they know he is a 
marathoner, he is a man of strength and courage, and he understands the 
State of Montana.
  It is hard for me to articulate the relationship I have with Senator 
Baucus. It is a relationship I prize. He is my friend and my confidant. 
He has a very tough job running the Finance Committee. Every big issue 
that comes before the Senate winds up in the Finance Committee because 
we have to figure out a way to pay for it. He runs that committee with 
an iron hand. We all know how tough he can be on that committee, but we 
also know how fair he can be. I learned that working on the Children's 
Health Insurance Program. That was a bipartisan piece of legislation. 
As a result of the work he did on that committee, we have more than 14 
million children now who are able to participate in that program who 
would not have been able to do so otherwise. It was done on a 
bipartisan basis.
  I join with everybody here in congratulating Max Baucus, who is, to 
me, what a Senator should be. He understands the significance of being 
a Senator, the significance of representing his State, and in the 
process he has become a great U.S. Senator.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, I say congratulations from this side of 
the aisle to the distinguished Senator from Montana on his 11,000th 
vote, which he is about to cast. The majority leader pointed out his 
great physical prowess in running these marathons. As he also 
indicated, presiding over the Finance Committee in the last few weeks 
has certainly qualified him for another long run.
  For over 30 years, Senator Baucus has represented Montana in the 
State legislature, in the U.S. House of Representatives, and in the 
U.S. Senate. He grew up on his great-grandfather's ranch, and he has 
always fought hard for the people of the Big Sky State. He has had a 
simple message: Montana comes first. He has fought to strengthen our 
Nation's transportation infrastructure. As we have seen over the past 
couple of weeks, he has a pretty strong work ethic, which should not 
surprise any of us for a guy who, as the majority leader pointed out, 
walked across the entire length of Montana.
  Senator Baucus has given three decades of dedicated service and has 
kept his pledge to put Montana first. I join the majority leader in 
congratulating him on his 11,000th vote.
  (Applause.)
  The PRESIDING OFFICER. The junior Senator from Montana is recognized.
  Mr. TESTER. Mr. President, I wish to add a few comments to those of 
the majority leader and the Republican leader.
  I say to Max Baucus, congratulations on your 11,000th vote. You have 
done such a great job over the many years you have served the people of 
the great State of Montana--me being one of those.
  I give Max a bad time, saying when he came to the Senate, I was just 
a child. Well, when he came to the Senate, he was just a child too. I 
have a lot of respect for this man.
  Folks say Max is a lucky guy, and he is. But he creates that luck 
with hard work. He works very hard not only for the people of Montana 
but for this Nation.
  I thank you, Max. Congratulations, and all the best.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, as the Member of the Senate who has 
worked closely with Senator Baucus over the last 10 years--either he 
has been chairman of the committee or I have been--I congratulate him 
on this 11,000th vote. But more important, I thank him for the close 
working relationship we have had, which I think people back home in our 
respective States probably don't observe, which is that there is a 
great deal of bipartisanship that goes on in Congress. I think Senator 
Baucus and I have established a close working relationship that refutes 
that everything in Washington is political. I thank him for that close 
working relationship and, more importantly, I thank him for putting up 
with a lot of problems I have created for him.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, I am very honored by all the comments of 
the majority leader, who is a good friend; Senator McConnell; my good 
friend Jon Tester; and the Senator from Iowa, Mr. Grassley. I am also 
honored to have served in this body.
  Everyone here cares a lot about public service and about people. We 
are all here because we care. I very much appreciate working with all 
of you. There are a lot of characters here, different personalities. 
The bottom line is that everybody is here for their State and the 
Nation.
  I feel as if I am the luckiest guy in the world. I think this is the 
best job one could have. I have 900,000 of the world's greatest bosses, 
the people of Montana. They are terrific and wonderful. I am just a 
hired hand working for them.
  Combined with all of you and all the staff here, you are all people 
here who care about our great country. I thank you very much. I could 
not be more touched and appreciative. Thank you.
  (Applause.)


                           Amendment No. 2580

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate, equally divided, prior to a vote in relation to 
amendment No. 2580 to be offered by the Senator from Arizona, Mr. 
McCain.
  The clerk will report.
  The legislative clerk read as follows:
  The Senator from Arizona [Mr. McCain] proposes an amendment numbered 
2580.
  Mr. McCAIN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To strike amounts available for procurement of C-17 aircraft 
 in excess of the amount requested by the President in the budget for 
                           fiscal year 2010)

       At the appropriate place, insert the following:
       Sec. __.  The amount appropriated by title III under the 
     heading ``Aircraft Procurement, Air Force'' is hereby reduced 
     by $2,500,000,000, the amount equal to the amount by which 
     the amount available under that heading for the procurement 
     of C-17 aircraft exceeds the amount requested by the 
     President in the budget for the Department of Defense for 
     fiscal year 2010 for the procurement of such aircraft.

  Mr. McCAIN. Mr. President, President Eisenhower warned us about the 
military-industrial complex. Well, we don't have to worry about the 
military anymore; it is now just the industrial complex and the 
lobbyists.
  This amendment strikes the $2.5 billion for 10 C-17 aircraft. Again, 
it used to be the military-industrial complex; now it is the industrial 
complex. The President, the Secretary of Defense, the Chairman of the 
Joint Chiefs, the Chief of Staff and Secretary of the Air Force, the 
commander of U.S. Transportation Command, and the chairmen and ranking 
members of the Senate and House Armed Services Committees have all 
agreed with the Secretary of Defense, who says that the ``205 C-17s

[[Page 23566]]

in the force and on order, together with the existing fleet of C-5 
aircraft, are sufficient to meet the Department's future airlift 
needs--even under the most stressing situations.''
  Mr. President, the spending goes on, the beat goes on, and at some 
time the American people are going to say ``enough.''
  Mr. DODD. Mr. President, it may feel like Ground Hog Day for some of 
us. We soundly defeated a similar amendment proposed by the Senator 
from Arizona last week, by a vote of 34-64. The reasons are clear, and 
have remained unchanged.
  The C-17 has proven its worth to our troops in Iraq and Afghanistan, 
to our taxpayers that foot the bill, and to the workers that labor day 
in and day out to provide our military with these critical planes. Our 
need for these planes is not shrinking--in fact, it is growing. Since 
the last formal assessment of our military's airlift requirements 4 
years ago, our forces have been expanded by 92,000 troops. Our overseas 
commitments have dramatically increased, resulting in many C-17s flying 
nearly double the flight hours that were planned for. Why? Because the 
C-17 is the most versatile and capable airlift plane in our arsenal.
  Despite these facts, the Senator from Arizona insists that we extend 
the life of our 40-year-old C-5 fleet, at a high cost to our taxpayer. 
Over the administration's objections, he coauthorized a bill recently 
that was approved by this body that actually prohibits the military 
from retiring C-5s. According to the Air Force, the C-5B has already 
reached 147 percent of planned life expectancy. This is a fleet we must 
begin to replace.
  I urge my colleagues to join me in defeating amendment No. 2580, for 
the sake of our troops, our taxpayers, and America's workers.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I rise to oppose this amendment which 
seeks to eliminate funding on the C-17. I am certain the Senate is 
aware that Vice Chairman Cochran and I proposed and the committee 
unanimously accepted our recommendation to reallocate $2.5 billion to 
procure 10 additional C-17s.
  Last week, the Senate voted overwhelmingly to defeat the Senator's 
amendment which would have deleted funding for the C-17 program. I 
believe the sense of the Senate is very clear. Continuing with the C-17 
program is a high priority. It is a critical national security enabler, 
providing the airlift our forces need for today's fight and for years 
to come.
  I oppose the amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
2580.
  Mr. COCHRAN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Pennsylvania (Mr. Specter) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 30, nays 68, as follows:

                      [Rollcall Vote No. 312 Leg.]

                                YEAS--30

     Alexander
     Barrasso
     Bennet
     Cardin
     Carper
     Coburn
     Conrad
     Corker
     Dorgan
     Enzi
     Feingold
     Franken
     Gregg
     Kaufman
     Klobuchar
     Kohl
     Kyl
     LeMieux
     Levin
     Lugar
     McCain
     McConnell
     Merkley
     Sanders
     Sessions
     Thune
     Udall (CO)
     Voinovich
     Warner
     Webb

                                NAYS--68

     Akaka
     Baucus
     Bayh
     Begich
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Casey
     Chambliss
     Cochran
     Collins
     Cornyn
     Crapo
     DeMint
     Dodd
     Durbin
     Ensign
     Feinstein
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kerry
     Kirk
     Landrieu
     Lautenberg
     Leahy
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Schumer
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Udall (NM)
     Vitter
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2580), was rejected.


                           Amendment No. 2623

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote in relation to 
amendment No. 2623, to be offered by the Senator from Hawaii, Mr. 
Inouye. The Senator from Hawaii is recognized.
  Mr. INOUYE. Mr. President, the McCain amendment rests on the 
assumption that congressional earmarks are for special treatment in 
awarding these contracts. But DOD's own inspector general concluded 
that the Department conducts identical oversight on earmarks and items 
funded in the President's budget. The McCain amendment also eliminates 
small business set-asides for earmarks. These set-asides benefit 
minority-owned, women-owned, disabled-veteran-owned businesses.
  My amendment applies competitive contracting to earmarks for for-
profit entities on the same basis as items in the President's budget, 
and protects funding for small businesses. The items funded by Congress 
or the President ought to be awarded using the same rules of the road.
  I urge Senators to support my amendment.
  The amendment is No. 2623. I call that up.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Hawaii [Mr. Inouye] proposes an amendment 
     numbered 2623.

  Mr. INOUYE. I ask further reading be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To provide full and open competition for congressionally 
                        directed spending items)

       At the appropriate place, insert the following:
       Sec. __. (a) Nature of Full and Open Competition for 
     Congressionally Directed Spending Items.--Each 
     congressionally directed spending item specified in this Act 
     or the report accompanying this Act that is intended for 
     award to a for-profit entity shall be subject to acquisition 
     regulations for full and open competition on the same basis 
     as each spending item intended for a for-profit entity that 
     is contained in the budget request of the President.
       (b) Exceptions.--Subsection (a) shall not apply to any 
     contract awarded--
       (1) by a means that is required by Federal statute, 
     including for a purchase made under a mandated preferential 
     program;
       (2) pursuant to the Small Business Act (15 U.S.C. 631 et 
     seq.); or
       (3) in an amount less than the simplified acquisition 
     threshold described in section 302A(a) of the Federal 
     Property and Administrative Services Act of 1949 (41 U.S.C. 
     252a(a)).
       (c) Congressionally Directed Spending Item Defined.--In 
     this section, the term ``congressionally directed spending 
     item'' means the following:
       (1) A congressionally directed spending item, as defined in 
     rule XLIV of the Standing Rules of the Senate.
       (2) A congressional earmark for purposes of rule XXI of the 
     House of Representatives.

  The PRESIDING OFFICER. Who yields time in opposition?
  The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, the side-by-side here is to basically 
neuter the intent of my amendment, which calls for competition for 
earmarks that are intended for for-profit companies. That is all it is, 
pure and simple. It is very well known how jealously the appropriators 
guard their earmarking, pork-barreling projects. My amendment, which is 
a side-by-side, would say we just put earmarks up for competition. The 
amendment of Senator Inouye will gut that provision.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  Mr. INOUYE. I ask for the yeas and nays.

[[Page 23567]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Pennsylvania (Mr. Specter) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 77, nays 21, as follows:

                      [Rollcall Vote No. 313 Leg.]

                                YEAS--77

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Cochran
     Collins
     Conrad
     Cornyn
     Dodd
     Dorgan
     Durbin
     Feinstein
     Franken
     Gillibrand
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--21

     Barrasso
     Bunning
     Burr
     Coburn
     Corker
     Crapo
     DeMint
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Johanns
     Kyl
     LeMieux
     McCain
     McCaskill
     Risch
     Sessions
     Thune
     Vitter

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2623) was agreed to.


                           Amendment No. 2560

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote on amendment No. 2560 
offered by the Senator from Arizona.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from Arizona [Mr. McCain] proposes an amendment 
     numbered 2560.

  The amendment is as follows:


                           amendment no. 2560

 (Purpose: To require that earmarks for for-profit entities be subject 
                     to full and open competition)

       At the appropriate place, insert the following:
       Sec. ___.  Any specific project contained in the Joint 
     Explanatory statement accompanying this Act that is 
     considered a congressional earmark for purposes of clause 9 
     of rule XXI of the Rules of the House of Representatives or a 
     congressionally directed spending item as defined in rule 
     XLIV of the Standing Rules of the Senate, when intended to be 
     awarded to a for-profit entity, shall be awarded under full 
     and open competition.

  Mr. McCAIN. I ask for a voice vote on this amendment.
  Mr. COCHRAN. Mr. President, I urge the Senate to oppose amendment No. 
2560 offered by the Senator from Arizona.
  This amendment would require all congressionally directed spending 
items to be competed but would allow items requested by the President 
to be executed with limited or no competition.
  In practice, this amendment would create separate acquisition 
criteria for items funded in the bill. It does not allow for 
traditional exceptions to the competitive process for such programs as 
small business set-asides, socially and disadvantaged firms, or women-
owned businesses.
  I urge my colleagues to vote ``no'' on the McCain amendment.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, the McCain amendment purports to save tax 
dollars by requiring competition for earmarks for all businesses. 
However, it should be noted that if this amendment passes, small 
businesses would have to be competed against the big companies; women 
businesses will have to be competed; business by small Indian 
companies, Native Americans, will have to be competed, and disabled 
veterans. We have a choice here.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 2560) was rejected.


                           Amendment No. 2583

  The PRESIDING OFFICER. The next amendment is amendment No. 2583 from 
the Senator from Arizona.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from Arizona [Mr. McCain] proposes an amendment 
     numbered 2583.

  The amendment is as follows:


                           amendment no. 2583

   (Purpose: To strike funding for the MARIAH Hypersonic Wind Tunnel 
                          Development Program)

       At the appropriate place, insert the following:
       Sec. __. (a) MARIAH Hypersonic Wind Tunnel Development 
     Program.--The amount appropriated by title IV under the 
     heading ``Research, Development, Test, and Evaluation, Army'' 
     is hereby reduced by $9,500,000, with the amount of the 
     reduction to be allocated to amounts available for the MARIAH 
     Hypersonic Wind Tunnel Development Program.

  Mr. McCAIN. Mr. President, this would strike an unrequested $9.5 
million earmark for a hypersonic wind tunnel research project called 
MARIAH. It is up to now some $90 million has been spent; nothing to 
show for it.
  It is an Army program and here is what the Army says:

       There are no current operational requirements for a 
     hypersonic missile program within the Army. No Army missions 
     currently require flight technologies. The Army does not have 
     the need for a hypersonic wind tunnel.

  It is hard to be more clear than that. So let's have the pork 
barrelers vote for it again.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. TESTER. Mr. President, the Air Force Material Command said last 
year that:

       Hypersonic military and commercial flight vehicles, 
     including space asset vehicles, global research, and missile 
     defense systems, are envisioned future needs.

  We are talking about the future, we are not talking about the past. 
The United States lacks capability to adequately test hypersonic 
propulsion. The MARIAH Project will fix that gap in research and 
development.
  Russia, China, and others are aggressively developing a new type of 
missile that is believed to be too fast for the U.S. missile defense. 
India and Russia have a joint venture engaged in laboratory testing of 
supersonic cruise missiles capable of speeds beyond Mach V.
  The fact is, folks, we need to look at the future. We need to look at 
what is going to happen in the next 5 or 10 years. MARIAH is about 
seeing a potential threat to our national defense that is on the 
horizon and finding a way to defeat it.
  I would encourage you to vote against the McCain amendment. It is 
vital to our national security to defeat this amendment.
  The PRESIDING OFFICER. All time is yielded back. The question is on 
agreeing to the amendment.
  Mr. KYL. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a subject second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Pennsylvania (Mr. Specter) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 43, nays 55, as follows:

                      [Rollcall Vote No. 314 Leg.]

                                YEAS--43

     Alexander
     Barrasso
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McCaskill
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

[[Page 23568]]



                                NAYS--55

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--2

     Byrd
     Specter
       
  The amendment (No. 2583) was rejected.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 2616, as Modified

  The PRESIDING OFFICER. We will now proceed to 2 minutes equally 
divided on the Lieberman amendment, No. 2616, as modified.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, on behalf of my cosponsor, Senator 
Sessions, I want to speak briefly on the amendment, and then we will 
withdraw our request for a rollcall. The chairman and ranking member 
have agreed to accept the amendment on a voice vote.
  To put this as simplistically and briefly as I can, as we all know, 
the administration has decided to terminate the ground-based midcourse 
ballistic missile defense system that was to go in Poland and the Czech 
Republic and substitute for it the so-called SM-3 system, an 
alternative system, to provide defense from missiles that are of short 
and medium range that would be fired from Iran, to protect our allies 
in Europe and the Middle East. Senator Sessions and I have been 
concerned that in doing so, we have put ourselves in a position where 
we do not have the guarantee of an adequate defense for that day and 
the next decade when Iran will have completed its development of a 
long-range missile, an intercontinental ballistic missile that it could 
fire at the United States.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The time of the 
Senator has expired.
  Mr. LIEBERMAN. Mr. President, you were too happy telling me that. I 
ask unanimous consent for an additional 30 seconds.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LIEBERMAN. I thank the Chair.
  Bottom line, we have developed a ground-based intercepter that was to 
go in Poland. We have it. It is ready to be tested. The alternative the 
administration is proposing to give the United States of America, our 
homeland, protection from a missile fired from Iran is basically on 
paper. If it is fully developed, it will give us protection.
  But Senator Sessions and I offer this amendment to make sure we set 
money aside so we continue to test the ground-based intercepter as a 
hedge against a failure of this alternative system, to be ready to 
protect the United States of America. That is why we offer this 
amendment, why I thank the leadership of the committee for being 
willing to accept it, and why I hope it will remain in conference when 
the bill returns to the Senate.
  I thank the Chair.
  Mr. HATCH. Mr. President, today I rise in strong support of Senator 
Lieberman's and Senator Sessions' amendment No. 2616 which will provide 
$151 million for the research and development of the two-stage ground-
based interceptor missile.
  I have always believed in having a plan B. Throughout my life I have 
learned the colloquial wisdom found in the saying ``do not put all your 
eggs in one basket'' has great merit.
  In fact, in its most simplistic form, our Nation's strategic 
deterrent has been based upon the principle that you always need a 
backup plan. Specifically, for over 45 years our Nation's ultimate 
security guarantee for ourselves and our allies has been our Nation's 
nuclear triad composed of intercontinental ballistic missiles, bombers 
and submarine-launched intercontinental ballistic missiles. The idea 
was simple: If one leg of our defense system was knocked out or somehow 
rendered inoperable, the two other legs would maintain a more then 
credible deterrent.
  Times have changed. But the continuing need for the triad was 
recently reaffirmed by Dr. James Schlesinger who was one of the 
principal members of the recently published final report of the 
Congressional Commission on the Strategic Posture of the United States.
  However, the events of September 11 only underscored a new threat 
phenomena that is referred to in military circles as the asymmetric 
threat. Simply put, an asymmetric threat is the tactics which are used 
by our new adversaries, such as terrorists and rogue regimes, to 
counterbalance our Nation's traditional strengths in conventional 
warfare. The example which is seared in the mind of each American was 
the hijacking and crashing of civilian airliners on September 11.
  Asymmetric threats are not just limited to terrorist activity and 
those nations which support it. It is also found in those nations which 
are developing ever more sophisticated ballistic missiles and even the 
ultimate weapon, the nuclear bomb.
  But the asymmetric threat that I wish to discuss today is Iran's 
ballistic missile program. Though the President argues the Iranians are 
a decade away from deploying an intercontinental ballistic missile, 
this was not what our military experts were telling us just a few 
months ago. Specifically, the Air Force's National Air and Space 
Intelligence Center published an unclassified version of its Ballistic 
and Cruise Missile Threat report in April 2009--just 5 months ago--that 
``Iran has an ambitious ballistic missile and space launch development 
programs and, with sufficient foreign assistance, Iran could develop 
and test an Intercontinental Ballistic Missile capable of reaching the 
United States by 2015.''
  The report goes on to say ``in late 2008 and early 2009 it launched 
the Safir, a multi-stage space launch vehicle, that can serve as a test 
bed for long-range ballistic missile technologies. The [Iranian] 2009 
test successfully placed a satellite in orbit.''
  These conclusions are supported by the testimony of General Craddock, 
who while still Commander of U.S. European Command stated this March 
that ``Iran already possesses ballistic missiles that can reach parts 
of Europe and is developing missiles that can reach most of Europe . . 
. By 2015 Iran may also deploy an Intercontinental Ballistic Missile 
capable of reaching all of Europe and parts of the U.S.''
  These are serious assessments and no doubt the President has good 
reason to believe the threat has changed and therefore made the 
decision to drop plans to deploy our ground-based midcourse 
interceptor, called GBI, to Europe. However, I am also mindful of the 
point the distinguished Senator from Connecticut made when he 
introduced his amendment. He astutely reminded the Senate that in 1998 
the North Koreans tested their long range Taepodong missile just 7 days 
after our intelligence community concluded that North Korea was 3 years 
away from having that capability.
  Which brings us back to the question: should we have a plan B?
  We did until 2 weeks ago.
  That plan B was to deploy a European-based GBI system to intercept 
intercontinental ballistic missiles fired from the Middle East at the 
United States and our European allies. According to the Bush 
administration this system was scheduled to be completed by 2013--2 
years before our intelligence estimates, until recently, believed Iran 
would have an intercontinental ballistic missile.
  However, under the new strategy, which relies on the continued 
development of the SM-3 missile, we and our allies must wait until 2018 
to have a similar capability as planned by the previous administration 
and offered by the GBI in 2013. We also must remember the 2018 SM-3 
deployment date can

[[Page 23569]]

only be reached if everything goes according to plan--an all too rare 
occurrence in modern weapons development.
  Not much of a plan B when one remembers that Iran has received 
extensive outside assistance in developing their ballistic missiles. 
For example, the National Intelligence Center concluded the Iranian 
Shahab-3, which has a range of 1,200 miles is based on the North Korean 
No Dong missile. In addition, Anthony Cordesman and Martin Kleiber in 
their 2007 book titled ``Iran's Military Forces and Warfighting 
Capabilities'' wrote that as early as October 1997 ``Russia began 
training Iranian engineers on missile production for the Shahab-3.'' 
The authors also pointed out that allegations have been made that 
various Chinese companies had assisted in Shahab-3s final development.
  This, of course, begs the question what other outside assistance 
could the Iranians receive which could speed their development of an 
intercontinental ballistic missile?
  That is why Senator Lieberman and Senator Sessions' amendment is so 
important. It provides us with a plan B. It continues the deployment of 
a two-stage GBI. This is not a pie-in-the-sky plan. Our Nation has 
already deployed a three-stage GBI in Alaska and California and until 
10 months ago the Department of Defense believed the two-stage system 
could be deployed by 2013.
  Therefore, I urge my colleagues to support the Lieberman-Sessions 
amendment to provide funding for a plan B which could provide us with 
capabilities to intercept Middle East ICBMs launched against our 
interests and allies years before the President's plan.
  The PRESIDING OFFICER. Who yields time in opposition?
  If all time is yielded back, the question is on agreeing to the 
amendment, as modified.
  The amendment (No. 2616), as modified, was agreed to.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote.
  Mr. INOUYE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Hawaii.


                           Amendment No. 2605

  Mr. INOUYE. Mr. President, I ask unanimous consent that amendment No. 
2605 be called up.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The bill clerk read as follows:

       The Senator from Hawaii [Mr. Inouye], for Mr. Bingaman, for 
     himself and Mr. Udall of New Mexico, proposes an amendment 
     numbered 2605.

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

   (Purpose: To make available from Research, Development, Test, and 
Evaluation, Air Force, $5,000,000 to carry out evaluations and analyses 
                       of certain laser systems)

       At the appropriate place, insert the following:
       Sec. __. (a) Amount for Evaluations of Certain Laser 
     Systems.--Of the amount appropriated or otherwise made 
     available by title IV under the heading ``Research, 
     Development, Test and Evaluation, Air Force'' and available 
     for Advanced Weapons Technology (PE# 0603605F), up to 
     $5,000,000 may be available to carry out the evaluations and 
     analyses required by subsection (b).
       (b) Evaluations and Analyses of Certain Laser Systems.--The 
     Secretary of Defense shall, in a manner consistent with the 
     October 8, 2008, report of the Air Force Scientific Advisory 
     Board entitled ``Airborne Tactical Laser (ATL) Feasibility 
     for Gunship Operations''--
       (1) carry out additional enhanced user evaluations of the 
     Advanced Tactical Laser system on a variety of instrumented 
     targets; and
       (2) enter into an agreement with a federally funded 
     research and development center under which the center 
     shall--
       (A) conduct an analysis of the feasibility of integrating 
     solid state laser systems onto C-130, B-1, and F-35 aircraft 
     platforms to provide close air support; and
       (B) estimate the cost per unit of such laser systems and 
     the cost of operating and maintaining each such platform with 
     such laser systems.

  Mr. INOUYE. Mr. President, this amendment has been cleared by both 
sides. I ask unanimous consent that the amendment be agreed to.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 2605) was agreed to.


                             HMMWV Funding

  Mr. DURBIN. Mr. President, I wish to engage my colleague, Senator 
Inouye, the chairman of the Appropriations Committee, in a colloquy.
  I would first like to thank Senator Inouye and Senator Cochran for 
their hard work in developing the fiscal year 2010 Department of 
Defense appropriations bill.
  As the chairman knows, the budget amendment submitted by the White 
House in August 2009 reduced the proposed spending for high mobility 
multipurpose wheeled vehicle, HMMWV, from the initial request level by 
$375 million, leaving less than $1.2 billion in the program in fiscal 
year 2010. This year's reduction is in addition to a $162 million 
reduction taken in the fiscal year 2009 supplemental appropriations 
bill.
  HMMWVs provide enhanced protection for our troops and are much more 
mobile and versatile than older models of the vehicle. There are still 
extensive requirements for HMMWVs throughout all the Services because 
the vehicle operates as a platform for numerous systems that perform 
multiple missions.
  The National Guard still has a majority of the older HMMWVs that 
cannot meet current military, homeland security, or State disaster 
missions. Recently, the Adjutants General reported that by fiscal year 
2011, 63 percent of their HMMWV fleet will be over 20 years old.
  These critical military vehicles also provide high-paying 
manufacturing jobs in the heart of the Midwest. The HMMWV supports over 
1,600 suppliers across 40 States--the majority of which are located in 
Illinois, Indiana, Ohio, and Michigan. These are skilled automotive 
workers and suppliers that have faced serious job losses over the last 
2 years.
  I am concerned that repeated funding reductions could erode the 
manufacturing base for this critical military vehicle and adversely 
affect our country's manufacturing capacity.
  I would encourage the chairman to closely consider this situation as 
we move to a conference committee with the House.
  Mr. INOUYE. I fully understand the Senator's concerns and support 
funding to meet our Nation's requirements for the HMMWV fleet. The 
HMMWV has proven its value over the years deployed in combat, in 
training at home and in homeland defense missions. I can assure you 
that we will carefully consider these factors as the fiscal year 2010 
bill is completed.
  Mr. FEINGOLD. Mr. President, I would like to address the growing 
interest in the Army's recent contract award to the Oshkosh Corporation 
for the family of medium tactical vehicles, which is currently being 
reviewed by the Government Accountability Office, GAO. A number of my 
colleagues in Congress have expressed their concern about the contract. 
They have registered their concern and desire for greater oversight on 
the floor of the Senate, as well as with the Department of Defense and 
GAO.
  I have long called for greater congressional oversight of the defense 
acquisitions process. Our acquisitions process is broken and costs are 
spiraling out of control. This has undermined our ability to provide 
the equipment our troops need when they need it. We must have full and 
fair competition in order to contain costs and ensure proper 
performance of defense contractors. To this end, I was a strong 
supporter of enacting the Weapons Systems Acquisition Reform Act 
earlier this year.
  However, I am concerned about the manner and timing of my colleagues' 
statements on this issue. The GAO is currently conducting an 
independent review of the contract. Congress should not be doing 
anything to foreclose or prejudice the GAO process, which would both 
undermine the GAO's independence and set a bad precedent for future 
protests. I am afraid that some of the public statements that have been 
made during the ongoing review,

[[Page 23570]]

as well as letters to the GAO, may exceed Congress' proper role and 
could have the effect of undermining GAO's independence.
  I, for one, am delighted that a company in my home State with a 
strong track record of providing vehicles to the military was awarded 
the contract. Wisconsinites take justifiable pride in the high-quality 
trucks and other products that Oshkosh Corporation designs and builds. 
I understand that some Members of Congress would have preferred a 
different outcome, and I respect that. But we must all recognize that 
the needs of the men and women of our armed services come first. The 
Armed Forces are best equipped to make decisions about their 
acquisition needs, as they have the expertise and experience needed to 
make decisions about the equipment needs of our troops. We should not 
try to substitute our judgments for those of experts in our military 
and at the GAO. I strongly urge my colleagues to refrain from passing 
judgment on the contract until we all have the opportunity to review 
the GAO's expert analysis. There should not be any room for politics in 
the acquisition process--our goal is to get the best product for the 
taxpayers' dollars.
  Mr. DODD. Mr. President, I would like to take a moment to discuss a 
very important amendment that was adopted by the Senate. This 
amendment, which I was proud to cosponsor, expresses the sense of the 
Senate that the joint surveillance target attack radar system, known as 
Joint STARS, is one of the most effective and heavily tasked 
intelligence, surveillance, and reconnaissance assets in our Air Force. 
These aircraft provide critical imagery of tens of thousands of square 
miles to our troops every day, helping to protect the lives of our 
troops who are protecting our country so bravely overseas.
  The Joint STARS fleet, although only 17 aircraft in size, has 
demonstrated immeasurable success in Iraq and Afghanistan. So far, they 
have flown over 55,000 combat hours, tracking the location and movement 
of enemy troops and discovering hundreds of improvised explosive 
devices. These aircraft consistently provide our troops on the ground 
with critical intelligence that helps them prepare for their missions 
in enemy territory.
  The Joint STARS fleet has been protecting our troops for decades, and 
with that service has incurred expected wear and tear. With no aircraft 
being designed to replace them, it is absolutely critical that we 
provide the military with the funds they need to keep up with their 
heavy deployment cycles. These aircraft are in dire need of new 
engines, which are now more than 40 years old. Failure to do so will 
cost the taxpayer billions of dollars in maintenance and operating 
costs. According to Air Force estimates, however, replacing the engines 
will pay for itself within 8 years. This is the only sensible solution.
  Workers in Norwalk, CT, have been working on the radar for this 
aircraft for years. This unique technology provides overall images of 
the battle space, ensuring our troops receive the most complete and 
accurate intelligence possible, from camouflaged insurgent camps and 
enemy vehicles to incoming cruise missiles. It is an incredible product 
which lends itself to some of the most industrious and dedicated 
workers in the field. There are hundreds of workers across the country 
like those in Norwalk that labor day in and day out to ensure that the 
Joint STARS fleet is able to continue to protect our brave men and 
women in uniform.
  Our troops cannot afford a lapse in the critical surveillance 
capability provided by our Joint STARS fleet. Our warfighters depend on 
this cutting edge technology every day, and we must ensure that we do 
not deny our troops the intelligence they need to successfully and 
safely execute their missions overseas.
  Mr. REID. Mr. President, I rise in support of the passage of H.R. 
3326, the fiscal year 2010 Defense appropriations bill.
  The legislation before us will fund critical priorities in the 
Department of Defense designed to protect our Nation from current 
threats and develop cutting-edge warfighting technologies for the 
future. It will provide the essential resources, equipment, and support 
for the nearly 200,000 military servicemembers now serving in Iraq and 
Afghanistan. And it will fund more than $89 million in projects to 
create jobs in Nevada and help support Nevada's role in keeping our 
country safe.
  During the course of the Senate's debate on this bill, we considered 
an amendment relating to U.S. operations in Afghanistan. The Obama 
administration is currently in the midst of an extremely important 
examination of our strategy in Afghanistan.
  Getting that strategy right is critical. To make sure we have the 
right strategy, the President has rightly undertaken consultation with 
a wide range of military, civilian, and intelligence community 
officials, as well as with Members of Congress.
  The amendment we considered was an attempt to cut off those 
discussions, to force the President's hand. This amendment was the 
wrong approach at the wrong time.
  Right now, there are hundreds of servicemembers and civilians from my 
home State of Nevada serving courageously in Afghanistan. Many of these 
troops have been serving in the military since the 9-11 terrorist 
attacks on our country.
  These troops have, in many cases, been deployed overseas three, four, 
and sometimes even five times. That means 3, 4, or more years that they 
have been taken away from their families and loved ones during the last 
8 years.
  Many of them have missed the births of their children, or their 
babies' first steps. Many have been pulled away from their civilian 
jobs, and have taken significant pay cuts. And, unfortunately, many 
troops in Nevada and throughout the Nation have made the ultimate 
sacrifice in service to our mission in Afghanistan.
  We owe these troops a rigorous and deliberative debate on the proper 
strategy in Afghanistan. We owe it to them to make sure we have 
examined every possible option so that we give them the best chance to 
win and to stay out of harm's way. To rush this process is to undercut 
the President's effort to protect to accomplish these objectives.
  Unfortunately, a number of Senators have sought to do just that. They 
have called for military commanders to begin testifying about our 
strategy in Afghanistan before that strategy is set by the Commander in 
Chief. That approach is a blatant attempt to force the President's 
hand, to circumvent the rigorous, deliberative review that a decision 
of this magnitude demands. It would short-circuit the administration's 
review of our Afghanistan strategy, and it would cut many important 
voices out of the picture. Our troops and our national security cannot 
afford such a rash step.
  Now, I agree that GEN Stanley McChrystal, Commander of U.S. Forces in 
Afghanistan, should testify to Congress about our strategy in 
Afghanistan. But, as his counterpart, GEN David Petraeus, did when this 
Chamber was debating our strategy in Iraq, I think it is appropriate 
for that testimony to occur after his Commander in Chief has arrived at 
a decision.
  In the last several days, I have had the opportunity to meet with 
Secretary of Defense Robert Gates and GEN Jim Jones, the President's 
National Security Adviser, to discuss the questions now facing us on 
Afghanistan. Today, I had the opportunity, along with several of my 
colleagues, to have a similar discussion with the President.
  All three of these officials have made it clear that they are in the 
midst of a vigorous, healthy discussion in which military commanders, 
including General Petraeus and General McChrystal, have key seats at 
the table. They are working through a disciplined and deliberate 
process in which they will determine a strategy that will best advance 
the security interests of the United States and then determine the 
appropriate resources to allocate in implementing that strategy.
  Talking about changes in troop levels or other resources before we 
have worked out the right strategy simply puts the cart before the 
horse. Now is

[[Page 23571]]

not the time for such an irresponsible approach. Now is the time for 
all the best minds on the administration's national security team to 
take a hard look at our policy in Afghanistan, free from politics and 
other interference, and make sure we get it right.
  As we move forward in this debate, my foremost priority will be to 
ensure that, no matter what the strategy, the brave servicemembers from 
Nevada and across America who are serving in Afghanistan have the 
support and resources they need to succeed in their mission. I am 
confident that the bill before us today takes an important step toward 
that goal, and I urge my colleagues to support it.
  The PRESIDING OFFICER. Under the previous order, the committee-
reported substitute, as amended, is agreed to and the motion to 
reconsider is considered made and laid upon the table.
  The question is on the engrossment of the committee amendment in the 
nature of a substitute, as amended, and third reading of the bill.
  The amendment was ordered to be engrossed and the bill to be read a 
third time.
  The bill was read the third time.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall the bill pass?
  Mr. COCHRAN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The result was announced--yeas 93, nays 7, as follows:

                      [Rollcall Vote No. 315 Leg.]

                                YEAS--93

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     Dodd
     Dorgan
     Durbin
     Ensign
     Feinstein
     Franken
     Gillibrand
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     LeMieux
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     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

                                NAYS--7

     Barrasso
     Coburn
     DeMint
     Enzi
     Feingold
     Graham
     McCain
  The bill (H.R. 3326), as amended, was passed.
  (The bill will be printed in a future edition of the Record.)
  Mr. INOUYE. Mr. President, I move to reconsider the vote.
  Mr. BENNETT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the Senate insists 
on its amendments, requests a conference with the House on the 
disagreeing votes of the two Houses, and the Chair is authorized to 
appoint the following conferees on the part of the Senate:
  The Presiding Officer appointed Mr. Inouye, Mr. Byrd, Mr. Leahy, Mr. 
Harkin, Mr. Dorgan, Mr. Durbin, Mrs. Feinstein, Ms. Mikulski, Mr. Kohl, 
Mrs. Murray, Mr. Specter, Mr. Cochran, Mr. Bond, Mr. McConnell, Mr. 
Shelby, Mr. Gregg, Mrs. Hutchison, Mr. Bennett, and Mr. Brownback, 
conferees on the part of the Senate.
  The PRESIDING OFFICER. The Senator from Hawaii.

                          ____________________