[Congressional Record (Bound Edition), Volume 155 (2009), Part 19]
[Senate]
[Pages 25330-25349]
[From the U.S. Government Publishing Office, www.gpo.gov]




  NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010--CONFERENCE 
                            REPORT--Resumed

  Mr. SHELBY. What is the pending business?
  The PRESIDING OFFICER. The clerk will report the pending business.
  The legislative clerk read as follows:

       Conference report to accompany H.R. 2647, a bill to 
     authorize appropriations for fiscal year 2010 for military 
     activities of the Department of Defense, to prescribe 
     military personnel strengths for fiscal year 2010, and for 
     other purposes.

  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SHELBY. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business for about 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               NASA and the Future of Human Space Flight

  Mr. SHELBY. Mr. President, I would like to take the opportunity to 
expand upon some of my earlier comments, and those of other Members of 
the Senate, in relation to NASA and the future of human space flight.
  I am concerned with aspects of the Augustine Commission's report that 
add credibility to far-reaching options for furthering our manned space 
flight program. If Congress and the public are to be asked to spend 
more for change, then it should be change that will give us the best 
chance to succeed and to continue to lead the world in human space 
exploration.
  The Chairman of the Review of U.S. Human Space Flight Plans 
Committee, Norm Augustine, announced that safety would be paramount. 
Yet, from reviewing the preliminary information, there is only one area 
where mission safety was examined in the report. The Augustine report 
contained no safety comparison for the various vehicles considered by 
the panel and no risk assessment based on each option. The only safety 
issue identified was an assessment of how ``hard'' the panel thought 
each overall mission would be to achieve--not the safest means to 
complete the mission successfully. Since safety is the most important 
issue, these omissions are starling to some of us.
  When making comparisons on the safety and performance of the various 
options, fundamental design differences cannot be lumped together and 
considered to be equal. Without an honest and thorough examination of 
the safety and reliability aspects of the various designs and options, 
the findings of this report are worthless. I would like to know why 
this blue ribbon panel did not examine these safety aspects.
  Constellation's vehicles have been planned and scrutinized by 
multiple stakeholders, all with a single goal in mind: to provide a 
safe and reliable human space flight system for our Nation.
  Flashy PowerPoint presentations and boisterous claims by potential 
commercial providers about their easy and simple science solutions to 
human travel into space sound like the answer to all of our problems. 
What sounds too good to be true usually is. Are these proposals subject 
to the same safety standards and testing that have resulted from the 
Columbia Accident Investigation Board, I would ask? Is there any 
evidence that the cargo rockets, promised to execute their first 
servicing mission sometime in 2010, are better than the manned rockets 
that have been under development for over 4 years? What do the experts 
say?
  NASA's own Aerospace Safety Advisory Panel issued a report in April 
of this year that stated that ``Commercial Orbital Transportation 
Services vehicles are not proven to be appropriate to transport NASA 
personnel.'' Will the current Administrator, Mr. Bolden, who helped 
write these words, now contradict his statement 6 months after putting 
his name to them?
  Further, I would ask, what happened to the April report findings in 
the Augustine Commission recommendations? Have there been findings 
since April that were available to the Augustine Commission that the 
Aerospace Safety Advisory Panel was not privy to? If so, I would 
certainly look forward to reviewing this new data.
  The Augustine Commission states in its own report that while human 
safety can never be absolutely assured, it is ``not discussed in 
extensive detail because any concepts falling short in human safety 
have simply been eliminated from consideration.'' Yet we see the 
vehicles currently deemed unsafe for our astronauts being used in the 
Augustine Commission's report as a viable option to go to low Earth 
orbit.
  When asked on September 15, 2009, about the readiness of emerging 
space contractors to provide manned space flights, former NASA 
Administrator Mike Griffin said:

       To confuse the expectation that one day a commercial 
     transport of crew will be there, to confuse that expectation 
     with the assumption of its existence today or in the near 
     term I think is--is risky in the extreme.

  Current and former NASA Administrators are on record registering 
their doubts regarding the safety of these new commercial contractors.
  Companies that are new contractors within the aerospace community 
have been provided a pathway that could potentially lead to billions in 
government funding to pursue opportunities to support International 
Space Station operations, starting with cargo. I believe the 
contractors wishing to pursue human launches to low Earth orbit should 
prove they can establish a reliable record of meeting the cargo and 
trash hauling responsibilities to support the station before we turn 
over the Nation's human space flight future to them.
  Pretty slides and unproven promises will not show us you have the 
right stuff to be entrusted with the lives of our astronauts. If these 
companies can be successful--and there is no reason to doubt that 
eventually, someday, somehow they will be--then NASA, the Congress, and 
the public might be willing to hand over launches to low Earth orbit. 
That day is not today and it will not be for years to come.
  But until that day arrives, I believe we should follow the path that 
has the safest manned vehicle, the vehicle furthest along in 
development, and, as mentioned several times by the Augustine 
Commission itself, the program that, given appropriate funding, will 
successfully provide a system that can not only go to the space station 
but to the Moon and beyond.
  Mr. President, I yield the floor.
  Mr. LEAHY. Mr. President, yesterday, the Senate majority leader was 
required to file cloture to end a Republican filibuster against the 
Department of Defense authorization bill. We are in two wars. We are in 
two wars, and we are about to send, from my State of Vermont, 1,500 
members of our National Guard to Afghanistan. We have all kinds of 
things the Defense authorization bill is designed for, including to 
protect Americans serving abroad in harm's way. Yet the Republicans 
have filibustered against the Department of Defense authorization bill. 
The Senate is going to vote on that tomorrow, pursuant to our rules. I 
hope we will have a bipartisan vote proceeding to conclude the debate 
on the conference report which has been adopted by the House. I expect 
the Senate, on both sides of the aisle, will vote to provide the 
authorities necessary for our men and women in uniform.
  I wonder what it would be like if you were a soldier, a marine out on 
the front lines in Afghanistan, and you get some news back home that 
one political party is holding up the Department of Defense 
authorization bill--the authorization for your equipment, the

[[Page 25331]]

authorization for your body armor, the authorization for your 
ammunition, the authorization for your going forward. What would you 
think as the bullets are whizzing toward you? I know what I would 
think. I know what I would have thought when my young son was in the 
Marine Corps and got called for service in the Middle East. I know what 
I would have thought of people holding up the authorization for the 
equipment he needed.
  Also, as part of that conference report, we are going to be adopting 
the Hate Crimes Prevention Act, including the provision added by the 
ranking Republican on the Senate Judiciary Committee, Senator Sessions, 
to create a new criminal offense for attacks against servicemembers 
because of their service. I would hope we will be moving forward on 
that.
  After more than a decade, Congress is finally set to pass the Matthew 
Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 as an 
amendment to the National Defense Authorization Act, and I expect the 
President to sign it promptly. I am proud that Congress has come 
together to show that violence against members of any group because of 
who they are will not be tolerated in this country.
  I thank Senator Collins for cosponsoring the amendment with me. I 
commend Senator Levin for working so hard to ensure that this provision 
would go forward as part of the conference report. I congratulate the 
Senate majority leader, Senator Reid, for his essential role in this 
matter. In the House of Representatives, Speaker Pelosi and Congressman 
Clyburn were similarly instrumental in this enactment.
  I also want to take this opportunity to remember Senator Ted Kennedy 
who provided steadfast leadership on this issue for more than a decade. 
I wish he could have been here to see this bill, about which he was so 
passionate, finally enacted. I am honored to be able to see it through 
to the finish for him. I know it meant a lot to him. We miss him but 
his good work goes on.
  Earlier this month was the 11th anniversary of the brutal murder of 
Matthew Shepard, a college student who was beaten and killed solely 
because of his sexual orientation. Matthew's parents have worked 
courageously and tirelessly for this legislation, which aims to ensure 
that this kind of despicable act will never be tolerated in this 
country. The bill was named for Matthew, as well as for James Byrd, 
Jr., a Black man who was killed in 1998 because of his race in another 
awful crime that galvanized the Nation against hateful violence. We 
appreciate and honor the important contributions of James Byrd's family 
as they have worked hard for this legislation.
  Unfortunately, the years since these two horrific crimes have made 
clear that hate crimes remain a serious and growing problem. Most 
recently, the shooting at the Holocaust Memorial Museum showed that 
these vicious crimes continue to haunt our country. This bipartisan 
legislation will help law enforcement respond more effectively to this 
problem.
  It is a testament to the importance of this legislation that the 
Attorney General of the United States came to the Judiciary Committee 
in June to testify in favor of it. We have been urged to pass this bill 
by State and local law enforcement organizations, and dozens of leaders 
in the faith and the civil rights communities. Michael Lieberman of the 
Anti-Defamation League and my friend, Janet Langhart Cohen, among 
others, also testified passionately in favor of this legislation before 
the Senate Judiciary Committee earlier this year. I also very much 
appreciate the support of Wade Henderson of the Leadership Conference 
on Civil Rights and Joe Solmonese of the Human Rights Campaign, who 
have worked tirelessly to see this legislation passed.
  The answer to hate and bigotry has to ultimately be found in 
increased respect and tolerance for all our citizens. In the meantime, 
strengthening our Federal hate crimes legislation to give law 
enforcement the tools they need is a necessary step.
  The facts set out in several recent reports show that hate crimes and 
hate groups remain a major problem. Last June, the Leadership 
Conference for Civil Rights released a report finding that ``the number 
of hate crimes reported has consistently ranged around 7,500 or more 
annually, or nearly one every hour of the day.'' A recent report from 
the Southern Poverty Law Center found that hate groups have increased 
by 50 percent since 2000, from 602 hate groups in 2000, to 926 in 2008.
  This historic hate crimes provision will improve existing law by 
making it easier for Federal authorities to investigate and prosecute 
crimes of racial, ethnic, or religious violence. Victims will no longer 
have to engage in a narrow range of activities, such as serving as a 
juror, to be protected under Federal law. It also focuses the attention 
and resources of the Federal Government on the problem of crimes 
committed against people because of their sexual orientation, gender, 
gender identity, or disability, which are much needed protections. In 
addition, this legislation will provide resources to State, local, and 
tribal law enforcement to address hate crimes.
  In preparing this legislation and moving it through Congress, we have 
worked closely with the Justice Department to ensure that we are 
advancing legislation that is fair, constitutional, and effective in 
cracking down on brutal acts of hate-based violence. It ensures that 
Federal prosecutors are able to rely on evidence of limited and 
relevant additional conduct to prove that the violent act in question 
was motivated by bias. It would also strengthen Federal jurisdiction 
over hate crimes and clarify key certification requirements to allow 
the Federal Government to appropriately support, but not to substitute 
for, State and local law enforcement. As a former State prosecutor, I 
believe respect for local and State law enforcement is critical.
  This legislation was carefully crafted to respect constitutional 
limits and differences of opinion. It will combat acts of violence 
motivated by hatred and bigotry, but it does not target speech, however 
offensive or disagreeable, and it does not target religious expression.
  I wish there had been more Republican support for this important 
civil rights amendment. Nonetheless, in the Senate we worked to address 
bipartisan concerns and issues. We incorporated Republican amendments 
mandating guidelines for hate crimes prosecutions, further changing 
first amendment protections, and creating a new criminal offense for 
attacks against servicemembers because of their service.
  I am disappointed that the servicemembers provision contains a 
mandatory minimum sentence because I believe that mandatory minimum 
sentences can have unintended and unfortunate effects on sentencing and 
on our criminal justice system. However, I was pleased that we were 
able to limit the provision to one modest mandatory minimum sentence 
and require the United States Sentencing Commission to study the effect 
of mandatory minimum sentences. I am also glad that we were able to 
pass this bill without adding a new Federal death penalty, which would 
have needlessly inserted a divisive issue into this legislation.
  I want to note that the sponsors and supporters intend with its 
passage, to authorize Federal investigations and prosecutions of those 
hate crimes described to the fullest extent permitted by the 
Constitution. Section 4707(a) of the defense authorization bill, which 
creates Sec. 249(a)(2)(B) of the new hate crimes statute, is desired to 
apply to the full extent of congressional authority under the Commerce 
Clause. Similarly, section 249(a)(1) should be interpreted broadly, to 
the full extent of Congress's authority under the 13th amendment.
  Section 4710 of the bill sets out rules of construction for hate 
crimes legislation. These rules of construction are meant to be read as 
a collective whole. They simply confirm that the statute should be 
applied consistent with the first amendment and the Federal Rules of 
Evidence. They are not meant to prevent the admission of any evidence 
that is relevant, consistent with the

[[Page 25332]]

first amendment, and otherwise admissible under the Federal Rules of 
Evidence, including under rule 404(b).
  President Obama has worked closely with us to facilitate the quick 
passage of this vital hate crimes legislation. In his first few months 
in office, he has acted to ensure that Federal benefits are awarded 
more equitably, regardless of sexual orientation, and now to ensure 
that this hate crimes legislation becomes law. Unlike in previous 
years, our bipartisan hate crimes bill does not face a veto threat. We 
have a President who understands that crimes motivated by bias are 
particularly pernicious crimes that affect more than just their victims 
and those victims' families. I expect the President to sign this 
legislation without delay.
  Hate crimes instill fear in those who have no connection to the 
victim other than a shared characteristic such as race or sexual 
orientation. For nearly 150 years, we have responded as a Nation to 
deter and to punish violent denials of civil rights by enacting Federal 
laws to protect the civil rights of all of our citizens. The Matthew 
Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 
continues that great and honorable tradition. Passage of this 
legislation, at last, will show, once again, that America values 
tolerance and protects all of its people.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I ask unanimous consent that Senator 
Barrasso and I be permitted to speak as in morning business to offer 
some comments about Senator Cliff Hansen, who passed away last night, 
and to agree to a resolution.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Enzi and Mr. Barrasso are printed in today's 
Record under ``Morning Business.'')
  Mr. ENZI. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MERKLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burris). Without objection, it is so 
ordered.


                              Unemployment

  Mr. MERKLEY. Mr. President, I rise to address the devastating jobs 
crisis hitting my home State of Oregon. Last Monday, we got new job 
numbers. On the face, it was good news. The rate of unemployment 
dropped from 12.2 percent to 11.5 percent. Of course, we would all 
expect this is because there were more jobs.
  As it turns out, that is not the case. Oregon lost 10,300 jobs in 
September. The unemployment rate dropped simply because, in the face of 
so much unemployment, many Oregonians are giving up in their search for 
a job. A year ago, 121,000 Oregonians were unemployed. This September, 
211,000 Oregonians were out of work. Jobs are hard to find in my home 
State right now.
  The reasons for this are many. We are an export State that has seen 
our trading partners hit hard with their own economic problems, 
countries such as South Korea whose GDP, year over year, dropped up to 
20 percent.
  Mexican penalty tariffs have hit Oregon's agricultural sector, our 
fruits and our Christmas trees, particularly hard. One of our main 
industries, the timber industry, which produces dimensional lumber for 
construction all across this great United States, has been wiped out by 
the collapse of construction and housing sectors of our economy.
  Allow me to zero in on the county where I was born, Douglas County. 
In September, Douglas County had a seasonally adjusted unemployment 
rate of 16.1 percent. One out of every six adults was out of a job. 
Douglas County is a big timber county. There is no market for 
dimensional lumber right now. The recovery package has helped some by 
creating jobs preventing wildfires in choked and overgrown second-
growth forests, but that is not enough.
  We need the housing markets to turn around. We need to diversify 
Douglas County's economic base by investing in clean energy technology 
that will turn biomass from the forests into renewable fuels.
  We are hard at work on both fronts, attempting to stabilize housing 
and crafting new clean energy legislation. But in the meantime, workers 
in Douglas County are hurting. There are not enough jobs. It is a 
crisis for the Douglas County families.
  In a crisis, we help our neighbors. One of the best ways we can help 
our neighbors and friends in Douglas County and other counties 
throughout Oregon and other counties throughout the United States of 
America is to pass an extension of unemployment benefits.
  Let me be clear: Oregonians want jobs. That is our first and best 
answer. If there are jobs out there, citizens will line up to get them. 
But when there are no jobs, we need to have help. The extension of 
unemployment benefits is such help. It would extend benefits for 14 
weeks for all States and 20 weeks for high unemployment States such as 
the State of Oregon.
  It is paid for through extending a fee employers are already paying. 
So it puts no additional pressure on business but provides a critical 
safety net to our out-of-work Americans.
  Before I close, I wish to add one point: This bill will help these 
families and workers get by, but it will also help our economy as a 
whole by putting money into the hands of those who need it most. 
Unemployment benefits rapidly turn into bags of groceries, new and 
secondhand school clothes, needed home repairs. All of that has a big 
impact on small businesses in Douglas County and small towns such as 
Roseburg, Sutherlin, and Myrtle Creek.
  That is why economists say extending unemployment insurance is about 
the best job-creating step the Federal Government could take. I 
understand some of my colleagues on the other side of the aisle are 
objecting to consideration of this bill. They do not want that bill to 
come to this floor.
  I think we need to look more closely at this issue. A bill extending 
unemployment benefits to assist in shoring up the financial foundations 
of our working families while they are still searching for those jobs 
is essential. We need to have not partisan potshots but real help for 
working families.
  I appreciate that some Members of this Chamber may come from States 
that are doing quite well right now. There may be some States in 
America that are not in the middle of a jobs crisis, but far too many 
of our States are similar to Oregon, where families need assistance. 
The delay of providing an extension of unemployment benefits will cause 
real pain to families in those States and slow down the effort for our 
economy as a whole to recover.
  I urge my colleagues to join in supporting the working families of 
Douglas County, the working families of Oregon, the working families of 
the United States of America, and support job creation by supporting 
this extension of unemployment benefits.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  (The remarks of Ms. Klobuchar pertaining to the submission of S. Res. 
317 are located in today's Record under ``Submission of Concurrent and 
Senate Resolutions.'')
  Ms. KLOBUCHAR. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Medicare Physician Payment Fix

  Mr. VOINOVICH. Mr. President, several weeks ago I came to the floor 
to remind my colleagues and all Americans about the fiscal realities in 
which we find ourselves. I promised I would continue these efforts 
until we did

[[Page 25333]]

something to address this crisis, so my colleagues are going to see a 
lot of me between now and the end of the year. Hopefully something will 
get done on this issue before the end of the year.
  Unfortunately, I return today to tell my colleagues that the bill to 
repeal the Medicare physician payment formula the Senate considered 
earlier today is a step in the opposite direction, and I was very 
pleased with the vote on that. There were 47 votes for cloture and 53 
votes in opposition, so we had more opposed than we had for cloture.
  When I spoke here earlier this fall, I discussed one of my children's 
favorite stories, ``The Emperor's New Clothes'' by Hans Christian 
Anderson. This little piece of artwork I have in the Chamber is in that 
fairytale.
  In the tale, an emperor goes about the land wearing a nonexistent 
suit sold to him by a new tailor who convinced the monarch the suit was 
made of the finest silks. The tailors--two swindlers--tell the emperor 
that the threads of his robes will be so fine that they will look 
invisible to those dimwitted or unfit for their position. The emperor 
and his ministers, themselves unable to see the clothing, lavish the 
tailor with praise for the suit because they do not want to appear to 
be dimwitted or incompetent.
  Word spread across the kingdom of the emperor's beautiful new 
clothes. To show off the extraordinary suit, a parade was formed. 
People lined the streets to see the emperor show off his new clothes. 
Again, afraid to appear stupid or unfit, everyone pretends to see the 
suit. It is only when a child cries out ``the emperor wears no 
clothes'' does the crowd acknowledge that the emperor is, in fact, 
naked.
  Mr. President, much like the emperor in this story, America's elected 
leaders know we face a fiscal train wreck, but we are choosing to 
ignore our current economic reality. The American people know ``we are 
naked,'' and so does the rest of the world, and our credibility and our 
credit are at risk, but we refuse to acknowledge what is obvious: When 
it comes to fiscal responsibility, ``the emperor wears no clothes.'' 
Yet earlier today we had a vote on whether to proceed to a bill that 
would have added $247 billion to our Nation's debt. The interest alone 
adds another $50 billion in debt over the next 10 years. We are just 
going to put it on the national credit card and let our children and 
grandchildren take care of it. We are the biggest credit card abusers 
in the world, and the credit cards we are using are the credit cards of 
my children and grandchildren and other Americans. I am pleased, as I 
said, that a majority of my colleagues joined me in opposing moving 
forward with this legislation.
  The President has said the health care reform bill would not add one 
dime to the deficit. Yet the bill we voted on earlier today should be a 
larger part of reform legislation, and it is going to spend over $\1/4\ 
trillion without paying for it--that is what would have happened.
  I suppose it is easy to make claims about health care reform 
legislation not adding to the deficit when Congress takes the parts 
that cost money off the table, but to do so is fiscally irresponsible 
and morally corrupt.
  The physician fix was left out of the Finance Committee, I suspect, 
not because my colleagues do not agree it is a fundamental part of 
health care reform but because it would have cost money my colleagues 
did not want to account for in the bill. If the Finance Committee would 
have included the fix in their bill, the $81 billion surplus they say 
the bill will create would have quickly turned into a deficit. That is 
unacceptable, and I am not the only one who feels that way. The 
Washington Post discussed the effort to take the fix for the 
sustainable growth formula--the formula that calculates reimbursement 
for physicians under Medicare--out of the larger health care bill as a 
``shell game'' and ``budgetary smoke and mirrors.'' This is just 
another illustration of our out-of-control spending that has caused our 
national debt to skyrocket.
  One of the reasons I ran for the Senate and came to Washington a long 
time ago was to reduce the Federal debt and balance our budgets. That 
is what I did when I was mayor of Cleveland. That is what I did when I 
was Governor of Ohio. When I arrived in the Senate in 1999, the gross 
national debt stood at $5.6 trillion, or 61 percent of the GDP. Today, 
the gross national debt is nearly $11.8 trillion, and the President 
will be coming before us to raise the national debt to, I think, over 
$12 trillion. The 2009 deficit stands at about $1.4 trillion.
  I just got back 2 weeks ago from Athens, Greece, and an Organization 
for Security and Co-operation meeting in Athens. When I shared with my 
colleagues that we borrowed $1.4 trillion to run the government--and 
they were all asking for help--they were astounded. They just could not 
believe it. I also reminded them that debt was like the debt we racked 
up during the Second World War. In other words, that is the period to 
which you can compare it. So the 2009 deficit stands at $1.4 trillion 
and at $9.1 trillion over the next decade, which does not include the 
borrowing from the trust funds and which is three times the largest 
deficit in our history.
  It does not take an economist to realize our current course is 
unsustainable. The Medicare Program is scheduled to be bankrupt by 
2017. I cannot understand why we are not talking about that. That means 
the supply of money coming in is not going to be enough to take care of 
the demand--just what is happening now in Social Security. In the next 
couple years, the money coming in is not going to be adequate to take 
care of people who are on Social Security, so we are going to have to 
borrow that money in order to take care of their needs. We need to take 
a comprehensive look at the program.
  I will be the first to admit we must honor our commitment to our 
Nation's seniors and ensure they have access to quality health care 
services. I have heard it firsthand from family and friends that in 
some places in Ohio, Medicare beneficiaries face delays for physician 
services right now. In fact, 6.8 percent of Ohioans live in a 
designated primary care shortage area. We need more doctors and nurses. 
The situation is only going to get worse. Thirty-nine percent of 
physicians are over the age of 50 and considering limiting the amount 
of time they see patients.
  For these reasons, I have been advocating for the past several years 
that we need a permanent and commonsense fix for the flawed sustainable 
growth rate formula, which we refer to as the doc fix. I do not think 
there is anyone on either side of the aisle who disagrees. We need to 
do that. Yet this bill we just considered is not the way to do it. Any 
fix must be part of a larger conversation, and it must be done in a way 
that does not simply add to the burden we are already placing on our 
children and grandchildren.
  I am pleased that in a letter last week to Senator Reid, 10 Senate 
Democrats joined me in this conclusion, asking the majority leader that 
he get serious about the Federal debt and tax and entitlement reform. 
They believe, as I do, that we cannot continue to keep spending without 
consequence. As I have been advocating, we must give larger reform 
serious thought before it is too late. We must act on the tough issues 
today.
  As Gerald Seib noted in the Wall Street Journal yesterday:

       Administration officials also know they have little choice 
     but to start showing early next year that they take the 
     deficit seriously, for both political and economic reasons.

  That is why Senator Lieberman and I have introduced legislation 
called Securing America's Future Economy, which basically creates a 
bipartisan commission that would deal with the deficit and deal with 
tax reform; that if a supermajority of those agree to the solution, 
that would get expedited procedure on the floor of the Senate and move 
to an up-or-down vote, very much like we do with the BRAC process. We 
have been trying to do this now for 4 years. We have talked to the OMB 
Director, Peter Orszag. It is interesting. Two years ago he was with a 
lot of former CBO Directors and said, We have to have a commission. It 
is the

[[Page 25334]]

only way we are going to deal with entitlements; it is the only way we 
are going to deal with tax reform, yet we are not able to convince the 
administration to move forward with us to tackle this very heavy 
responsibility.
  Time is running out. The dollar is going down. People are talking 
about not using the dollar as an exchange anymore. Most of the economic 
experts say if we keep going on this unsustainable course, we are going 
to see interest rates start to skyrocket in this country. Over half our 
debt is in the hands of the Chinese and the Indians and the OPEC 
nations and Japan. We are in bad shape. The public understands it. They 
understand. They understand that the emperor has no clothes. We are not 
doing anything about the problem, and they get it today.
  I happen to believe that the undertow that is out there in the 
country today in terms of health care reform and in terms of climate 
change is the fact that the American people understand that things 
aren't right. The American people in the Presiding Officer's State, in 
my State, do you know what they are doing? They are buying less. They 
are not putting it on their cards. They are trying to save some money. 
They know they have been on a binge. They look to us and they say, What 
are you doing? What are you doing? We care about ourselves, but we also 
care about our children and grandchildren. It is not fair to those 
individuals to do what we are doing.
  We have a moral obligation to do what we can to try to make sure this 
generation's standard of living will not be less than those who came 
before them. Many people believe that is going to be the case. The 
passage of the legislation to fix the physician payment formula by 
borrowing more money will only help guarantee that they are right.
  We have a serious problem. I will be coming to the floor over and 
over to see if we can't do it. I am going to do what I can to convince 
the President that he ought to participate in setting up this 
commission, working with Senator Gregg and Senator Kent Conrad, to see 
if we can't get them together to agree on what this commission would 
look like. We are hoping the President is alert enough to know that if 
he doesn't deal with this problem, it is not only a substantive problem 
that needs to be dealt with but a major political problem that he is 
going to have. The American public demands that we start talking about 
doing something about this problem and they know we are running out of 
time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.


                          Internet Neutrality

  Mr. DORGAN. Mr. President, tomorrow at the Federal Communications 
Commission there will be a vote on a proposed rulemaking. It is a 
rulemaking on something called net neutrality. Let me put that in 
English, if I might. It is about Internet freedom. I wish to talk for a 
moment about the importance of this.
  One would think, given the reaction by some and dozens and dozens of 
letters that are now going to the FCC, that what is going to happen 
tomorrow is some unbelievable vote on some controversial proposal that 
has had no discussion. It is not that at all. It is a notice of 
proposed rulemaking. It is the beginning of a process to describe a 
rulemaking on what is called net neutrality or the principle of 
nondiscrimination with respect to the Internet.
  I wish to describe how important that is. The Internet is an 
unbelievable new invention in our lifetime. It was created by the 
Federal Government. A bunch of scientists and engineers in the Federal 
Government described this method of communicating one to another with 
computer technology and it became the Internet. The Internet developed 
over a number of years in a completely free and open architecture. That 
meant that anyone could go to anyplace and see anybody on the Internet. 
So the stories are legend.
  It was, I believe, 11 years ago when Larry and Sergey, two young men 
in college in a dormitory room started a company. They moved it to a 
garage that had a garage door opener, and it had eight employees, and 
they had this idea, a new company, a new search engine. It had eight 
employees and it was in a garage with a garage door opener 11 years 
ago. Well, now it is called Google.
  But it is not just Larry and Sergey having a dream and a vision. It 
is so many others as well. It is Jeff Bezos who drove to California 
with an idea and that idea became Amazon.com, selling books, and then 
selling almost everything. Or it became someone with an idea about 
having an auction on the Internet, and it became eBay, and most of us 
know about eBay. Or it became Mark Zuckerberg who had an idea of 
something called Facebook. Well, I am talking about huge successes. But 
for every one of those--Facebook, eBay, Amazon, Google--for every one 
of those large companies that have now grown on the Internet, there are 
millions of people out there who are conducting a business in their 
kitchen, in their dorm room, in their garage, because they are the next 
enterprising person to succeed on the Internet.
  The question is this: If there is someone in my hometown--and let me 
describe that someone, because it happened to be someone who is now 
occupying the home that I grew up in; a very small, two-bedroom home in 
a small town of 300 people. I had not been back for some long while to 
see the home. So I knocked on the front door. When the woman answered, 
I asked if I could see the home that I grew up in, where I spent my 
first 17 years, and she said: Of course. Come on in. So I came in and 
she was doing something that I found kind of interesting. She had in 
the small kitchen on the table a camera, and the camera was pointed at 
an aperture with an arm and on the arm was hanging a bracelet, a little 
gold bracelet, and she was taking a picture of the gold bracelet.
  I said: What are you doing?
  Well, I have a business, she said.
  I said: Well, what kind of business do you have?
  Well, I sell on the Internet. I purchase jewelry and then I sell it 
on the Internet.
  Sure enough, in the little porch coming into the home she had 
cardboard boxes and tape and the kinds of things you would do to box 
something up and send it. Here in this little town in southwestern 
North Dakota, a town of 300 people, a woman, in the home I grew up in, 
was running a business.
  I said: How do you do?
  She said: Pretty well. This income supplements my husband's income. 
She said: I sell on eBay.
  Well, you know what? In that little kitchen, anybody in the world can 
find her business--anybody in the world can find that business. Why? 
Because the Internet is open. The architecture has never been closed. 
The whole notion of the Internet is this notion of freedom, of liberty 
to go anywhere you want to go. In the last 3\1/2\ years I have written 
two books and I have discovered in the writing of books how 
unbelievable the Internet is to be able to go to anywhere in the world 
and do research. If you want to know something, go there, and nobody is 
going to stop you from going wherever you wish to go. Put it in a 
search engine, go find it, and you will find it in some crevice on the 
Internet. Somebody out there has put it on the Internet for you to see. 
It is the most unbelievable research tool I have ever found.
  So, yes, it is Google, it is Amazon, it is eBay, it is the big 
companies, but much more than that, it is the backbone that allows 
people all over this country and the world to do business. Yes, from 
their kitchen, from their garage. Some of those businesses will grow to 
become names we don't now know but will, because they will be 
successful. They will be the next invention, the next opportunity on 
this thing called the Internet.
  Here is the question: The Internet was created under circumstances 
that required rules of nondiscrimination. For the first portion of its 
birth and then origin, it was an Internet that was described as a 
telephone service and it was subject to rules that had 
nondiscrimination, so no one could discriminate. It was completely 
open,

[[Page 25335]]

completely free. Its architecture was available to anyone at any time. 
Anybody can go anywhere at any time. Nobody has a toll booth, nobody is 
a gatekeeper. It is completely open and free. The biggest company over 
here and the smallest enterprise over here--big corporate executives 
wearing gray suits making lots of money, and two people in a dorm room 
or someone in a small kitchen in a small town--they are equal. Anybody 
has access to both sites, or all sites. That is called 
nondiscrimination and the nondiscrimination rules say no one can set up 
a barrier. No one can set up a gate. No one can set up a toll booth. 
Anyone has freedom and access anywhere on the Internet.
  That is the way the Internet was developed. That is its origin and 
that is the way most of its life has existed. Then the Federal 
Communications Commission came along and said, We are going to redefine 
the Internet as an information service rather than a telephone service 
and the result is the nondiscrimination rules fell off the chart 
because they attached to the telephone service. So some of us have 
said, Well, we certainly want to maintain and continue 
nondiscrimination rules. I mean, who would be for discrimination, 
right? So we want to maintain the nondiscrimination rules. We want to, 
with what is called network neutrality or net neutrality, restore the 
nondiscrimination rules and the basic freedom under which the Internet 
developed in the first instance. That has been our effort. That is what 
the Chairman of the Federal Communications Commission is attempting to 
do. It is to begin tomorrow with a notice of proposed rulemaking. It 
doesn't mean he is saying, Here is exactly what we are going to do; it 
is saying, Let's propose a rulemaking and that rulemaking process will 
allow everybody to weigh in, to make comments, to be involved with the 
question of exactly what kind of a rule they may or may not write.
  I think what the Federal Communications Commission is doing tomorrow 
is exactly the right thing. I know there are some who are pushing back. 
In fact, there are some who have said, We want to set up a toll booth. 
There are some CEOs of some large companies who have suggested, You 
know what. Those wires belong to us. We want to be able to have some 
toll booths and so on.
  I don't believe they should be able to set up any impediments. By 
that I am not suggesting they don't have a right to have security for 
their networks; they certainly do. I am not suggesting they don't have 
a right to do certain kinds of inspections to make sure that the kinds 
of things that are prohibited--child pornography and others--are 
stopped on the Internet. But what I am saying is the architecture under 
which the Internet itself was created is an architecture all of us 
should aspire to continue, and that is nondiscrimination rules and 
transparency. This is very simple. So tomorrow there will be a vote at 
the FCC. I would say to the chairman of the FCC and to all of the 
Commissioners that you are doing the right thing by proceeding to make 
certain that the future of the Internet is open and has free access 
with nondiscrimination rules and transparency.
  Here are a couple of letters I wish to have printed in the Record, if 
I might ask unanimous consent. One is a letter to Chairman Genachowski 
and this letter is dated October 19th:

       We write to express our support for your announcement that 
     the FCC will begin a process to adopt rules to preserve an 
     open Internet. We believe a process that results in common 
     sense baseline rules is critical to ensuring that the 
     Internet remains a key engine of economic growth, innovation, 
     and global competitiveness.

  Let me not read it all, but let me read the final paragraph of this 
letter:

       America's leadership in the technology space has been due, 
     in large part, to an open Internet. We applaud your 
     leadership in initiating a process to develop rules that 
     ensure the qualities that have made the Internet so 
     successful are protected.

  That is a letter from a large group of people who run Internet 
companies and applications, from Craigslist, EchoStar, Google, Mozilla, 
Skype, Amazon, Expedia, Netflix, Sony Electronics, XO Communications, 
Facebook, eBay, and so many others; Twitter, and Meetup, so many 
different folks who know of what they are speaking. I support this 
letter and commend it to the Chairman of the FCC. Again, I ask 
unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 October 19, 2009.
     Hon. Julius Genachowski,
     Chairman, Federal Communications Commission, Washington, DC.
       Dear Chairman Genachowski: We write to express our support 
     for your announcement that the Federal Communications 
     Commission will begin a process to adopt rules that preserve 
     an open Internet. We believe a process that results in common 
     sense baseline rules is critical to ensuring that the 
     Internet remains a key engine of economic growth, innovation, 
     and global competitiveness.
       For most of the Internet's history, FCC rules have ensured 
     that consumers have been able to choose the content and 
     services they want over their Internet connections. 
     Entrepreneurs, technologists, and venture capitalists have 
     previously been able to develop new online products and 
     services with the guarantee of neutral, nondiscriminatory 
     access by users, which has fueled an unprecedented era of 
     economic growth and creativity. Existing businesses have been 
     able to leverage the power of the Internet to develop 
     innovative product lines, reach new consumers, and create new 
     ways of doing business.
       An open Internet fuels a competitive and efficient 
     marketplace, where consumers make the ultimate choices about 
     which products succeed and which fail. This allows businesses 
     of all sizes, from the smallest startup to larger 
     corporations, to compete, yielding maximum economic growth 
     and opportunity.
       America's leadership in the technology space has been due, 
     in large part, to the open Internet. We applaud your 
     leadership in initiating a process to develop rules to ensure 
     that the qualities that have made the Internet so successful 
     are protected.
           Sincerely,
         Jared Kopf, Chairman & President, AdRoll.com; Craig 
           Newmark, Founder, Craigslist; Charles E. Ergen, 
           Chairman & CEO, EchoStar Corporation; Eric Schmidt, 
           CEO, Google Inc.; John Lilly, CEO, Mozilla Corporation; 
           Josh Silverman, CEO, Skype; Gilles BianRosa, CEO, Vuze, 
           Inc.; Jeff Bezos, Founder & CEO, Amazon.com; Jay 
           Adelson, CEO, Digg; Erik Blachford, Former CEO, 
           Expedia.
         Barry Diller, Chairman & CEO, IAC; Reed Hastings, Co-
           Founder & CEO, Netflix, Inc.; Stan Glasgow, President & 
           COO, Sony Electronics; Carl J. Grivner, CEO, XO 
           Communications; Ashwin Navin, Co-Founder, BitTorrent, 
           Founding Partner, i/o Ventures; Kevin Rose, Founder, 
           Digg; Mark Zuckerberg, Founder & CEO, Facebook; Reid 
           Hoffman, Executive Chairman, Linkedin; Howard Janzen, 
           CEO, One Communications; Thomas S. Rogers, President & 
           CEO, TiVo Inc.
         Steven Chen, Founder, YouTube; James F. Geiger, Chairman 
           & CEO, Cbeyond; John Donahoe, CEO, eBay, Inc.; Caterina 
           Fake, Founder, Flickr; Scott Heiferman, CEO & Co-
           Founder, Meetup; David Ulevitch, Founder, OpenDNS; Evan 
           Williams, Co-Founder & CEO, Twitter; Mark Pincus, CEO, 
           Zynga.

  Mr. DORGAN. Mr. President, this is a letter from the largest venture 
capital funds in the country that have made substantial investments in 
these companies that have helped the Internet grow;

       Dear Chairman Genachowski: We write to express our support 
     for the Commission's ongoing efforts to adopt rules to 
     safeguard the open Internet. As business investors in 
     technology companies, we have first-hand experience with the 
     importance of guaranteeing an open market for new 
     applications for services on the Internet. Clear rules to 
     protect and promote innovation at the edges of the Internet 
     will reinforce the core principles that led to its 
     extraordinary social and economic benefits. Open markets for 
     Internet content will drive investment, entrepreneurship and 
     innovation. For these reasons, Net Neutrality policy is pro-
     investment, pro-competition, and pro-consumer.

  I ask unanimous consent to have printed in the Record this letter 
from the venture capital firms that know a lot about the Internet.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 October 21, 2009.
     Hon. Julius Genachowski,
     Chairman, Federal Communications Commission, Washington, DC.
       Dear Chairman Genachowski: We write to express our support 
     for the Commission's ongoing efforts to adopt rules to 
     safeguard the open Internet. As business investors in 
     technology companies, we have first-hand experience with the 
     importance of guaranteeing an

[[Page 25336]]

     open market for new applications and services on the 
     Internet. Clear rules to protect and promote innovation at 
     the edges of the Internet will reinforce the core principles 
     that led to its extraordinary social and economic benefits. 
     Open markets for Internet content will drive investment, 
     entrepreneurship and innovation. For these reasons, Net 
     Neutrality policy is pro-investment, pro-competition, and 
     pro-consumer.
       Permitting network operators to close network platforms or 
     control the applications market by favoring certain kinds of 
     content would endanger innovation and investment in an 
     investment sector which represents many billions of dollars 
     in economic activity. The Commission is absolutely correct to 
     propose clear rules that require competition. The promise of 
     permanently securing an open Internet will deliver consumers 
     and innovators a perfect free market that drives investment, 
     job creation, and consumer welfare. These principles should 
     apply across all Internet access networks, wired or wireless.
       Investment and innovation at the edge of the network will 
     create not just jobs but also new tools and opportunities for 
     communication, education, health care, business, and every 
     other human endeavor.
       We look forward to working with you in developing clear 
     rules to protect the open Internet, and in building together 
     a framework to secure its future and promote its continued 
     growth.
           Sincerely,
         Immad Akhund, Co Founder, Heyzap; Brian Ascher, Venrock; 
           Aneel Bhusri, Partner, Greylock Partners (and Co-
           Founder and Co-CEO, Workday); Matt Blumberg, Chairman & 
           CEO, Return Path, Inc.; Brad Burnham, Union Square 
           Ventures; Stewart Butterfield, Co-Founder, Flickr; Ron 
           Conway, Founder, SV Angel LLC; John Doerr, Partner, 
           Kleiner Perkins Caufield & Byers; Timothy Draper, 
           Founder and Managing Director, Draper Fisher Jurvetson; 
           Caterina Fake, Co-Founder, Flickr & Hunch.
         Brad Feld, Co-Founder, Foundry Group; Peter Fenton, 
           Benchmark Partners; Eyal Goldwerger, CEO, TargetSpot; 
           Jude Gomila, Co founder, Heyzap; Mark Gorenberg, 
           Managing Director, Hummer Winblad; Jordan Greenhall, 
           Founder of Divx; Bill Gurley, Benchmark Partners; Jed 
           Katz, Managing Director, Javelin Venture Partners; Dany 
           Levy, Founder, DailyCandy; Mario Marino, Member, 
           Executive Advisory Board, General Atlantic LLC.
         Jason Mendelson, Managing Director, Mobius Venture 
           Capital; Michael Moritz, Sequoia Capital; Kim Polese, 
           CEO of Spike Source, Inc.; Avner Ronen, CEO of Boxee; 
           Pete Sheinbaum, Former CEO of Daily Candy; Ram Shriram, 
           Founder, Sherpalo; David Sze, Partner, Greylock 
           Partners; Albert Wenger, Union Square Ventures; Steve 
           Westly, Managing Director, The Westly Group; Fred 
           Wilson, Union Square Ventures.

  Mr. DORGAN. Mr. President, finally, I ask unanimous consent to have 
printed in the Record a letter from the folks who created the Internet. 
The list is headed by Vinton Cerf, who is often called the ``father of 
the Internet.'' I know Vint Cerf. He is an extraordinary man. Others 
signing this letter include Stephen Crocker, David Reed, Lauren 
Weinstein, and Daniel Lynch: these are all Internet pioneers. They were 
there at the beginning. They created this unbelievable engine of 
opportunity for the American people. They write a similar letter 
saying:

       As individuals who have worked on the Internet and it 
     predecessors continuously beginning in the late 1960s, we are 
     very concerned that access to the Internet be both open and 
     robust. We are very pleased by your recent proposal to 
     initiate a proceeding for the consideration of safeguards to 
     that end.

  This is a letter to Chairman Genachowski from the folks I mentioned. 
I ask unanimous consent to have printed in the Record this letter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 October 15, 2009.
     Hon. Julius Genachowski,
     Chairman, Federal Communications Commission, Washington, DC.
       Dear Mr. Chairman: We appreciate the opportunity to send 
     you this letter. As individuals who have worked on the 
     Internet and its predecessors continuously beginning in the 
     late 1960s, we are very concerned that access to the Internet 
     be both open and robust. We are very pleased by your recent 
     proposal to initiate a proceeding for the consideration of 
     safeguards to that end.
       In particular, we believe that your network neutrality 
     proposal's key principles of ``nondiscrimination'' and 
     ``transparency'' are necessary components of a pro-innovation 
     public policy agenda for this nation. This initiative is both 
     timely and necessary, and we look forward to a data-driven, 
     on-the-record proceeding to consider all of the various 
     options.
       We understand that your proposal, while not even yet part 
     of a public proceeding, already is meeting with strong and 
     vocal resistance from some of the organizations that the 
     American public depends upon for broadband access to the 
     Internet. As you know, the debate on this topic has been 
     lengthy, and many parties opposing the concept have 
     systematically mischaracterized the views of those who 
     endorse and support your position.
       We believe that the existing Internet access landscape in 
     the U.S. provides inadequate choices to discipline the market 
     through facilities-based competition alone. Your network 
     neutrality proposals will help protect U.S. Internet users' 
     choices for and freedom to access all available Internet 
     services, worldwide, while still providing for responsible 
     network operation and management practices, including 
     appropriate privacy-preserving protections against denial of 
     service and other attacks.
       One persistent myth is that ``network neutrality'' somehow 
     requires that all packets be treated identically, that no 
     prioritization or quality of service is permitted under such 
     a framework, and that network neutrality would forbid 
     charging users higher fees for faster speed circuits. To the 
     contrary, we believe such features are permitted within a 
     ``network neutral'' framework, so long they are not applied 
     in an anti-competitive fashion.
       We believe that the vast numbers of innovative Internet 
     applications over the last decade are a direct consequence of 
     an open and freely accessible Internet. Many now-successful 
     companies have deployed their services on the Internet 
     without the need to negotiate special arrangements with 
     Internet Service Providers, and it's crucial that future 
     innovators have the same opportunity. We are advocates for 
     ``permissionless innovation'' that does not impede 
     entrepreneurial enterprise.
       We commend your initiative to protect and maintain the 
     Internet's unique openness, and support the FCC process for 
     considering the adoption of your proposed nondiscrimination 
     and transparency principles.
           Respectfully,
     Vinton G. Cerf,
       Internet Pioneer.
     Stephen D. Crocker,
       Internet Pioneer.
     David P. Reed,
       Internet Pioneer.
     Lauren Weinstein,
       Internet Pioneer.
     Daniel Lynch,
       Internet Pioneer.

  Mr. DORGAN. Mr. President, let me finally say this: I understand this 
issue has been controversial. I and Senator Snowe have worked on this 
issue for a long while. The only time it has been voted on in the 
Congress was an attempt by us to add an amendment in a Commerce 
Committee markup. This was about 2\1/2\ years ago. We had an 11-to-11 
tie. Why was there a tie vote? It is a controversial issue, although it 
should not be.
  The basic principle of freedom on the Internet, open architecture on 
the Internet, the openness with which this Internet was created ought 
to persuade everyone to say: Yes, let's restore the conditions under 
which the Internet has always operated, up until recently; that is, 
nondiscrimination and transparency.
  There are some interests in this country, I understand, some economic 
interests that say: No, we don't want that. We want some opportunity to 
perhaps go a different direction. We had one CEO in this country say: 
You know what. I want some of these companies on the Internet to pay me 
for the right to move on my lines. Once that starts, once we go down 
that road with those who have the muscle or the strength to decide who 
is going to cross and who is not, who can get by their toll booth and 
who cannot, then I am telling you there are Larrys and Sergeys in a 
dorm room out there someplace or a woman in a kitchen with a small 
business that is not going to succeed. And that innovation, that new 
company, that new business for this country, the expansion of the 
Internet and opportunity that comes with it will not exist. Why? 
Because we failed to continue the open architecture and the basic 
freedoms on which the Internet was created and on which we still ought 
to govern the future of the Internet.
  What Julius Genachowski, the new chairman, is doing tomorrow at the 
FCC is exactly the right thing. He is not mandating some specific menu. 
He is beginning a rulemaking process which, at the end, in my judgment, 
will result in the restoration of two basic

[[Page 25337]]

principles: Nondiscrimination on the Internet and transparency. Is 
there anyone who believes those principles are not fair, are not 
reasonable? I don't think so.
  There has been a flurry of protests, an unbelievable dust created by 
a lot of noise, a lot of crowd noise around this issue. I hope perhaps 
the chairman and those on the Commission who believe we ought to move 
in this direction understand there is very substantial support for what 
they are trying to do. That support exists in a letter I am sending 
today with some of my colleagues to say that support is here. Work that 
Senator Snowe and I have done on this issue will be reflected as well 
in a message tomorrow.
  I just want the Chairman to know: Keep going. You are doing the right 
thing. Don't worry about some of the dust that is out there. Do the 
public business, do the right thing, and this country will be best 
served.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Republican leader.


                          Supreme Court Appeal

  Mr. McCONNELL. Mr. President, yesterday the Supreme Court announced 
it would hear a case that has critical ramifications for our ability to 
detain foreign nationals safely outside our borders during wartime at 
the U.S. naval station at Guantanamo Bay, Cuba. The case also provides 
insight into the question of the best place to detain and try foreign 
terrorists.
  The case involves a group of ethnic Chinese Uighurs who are detained 
at Guantanamo Bay. The Uighurs won their habeas corpus petition to be 
released from custody. Many of these Uighurs, however, had received 
terrorist training in the Tora Bora Mountains of Afghanistan, including 
weapons training on AK-47 assault rifles at a camp run by the head of a 
group that our State Department has designated a terrorist organization 
and that the United Nations has listed as a group associated with Osama 
bin Laden, al-Qaida, or the Taliban.
  Not surprisingly, it has not been easy to find countries eager to 
accept the Uighurs into their civilian populations. So the Uighurs sued 
to be released into the United States. Federal District Court Judge 
Ricardo Urbina granted the Uighurs' request and ordered them released 
in our country. It did not matter to Judge Urbina that the Uighurs did 
not have an immigration status or that they had received military-style 
weapons training or that they had associated with a terrorist group. He 
was persuaded by their argument that justice required that they be 
released right here in the United States.
  Fortunately, the DC Circuit Court reversed Judge Urbina. It ruled 
that even though the Uighurs had won their habeas corpus petition, they 
did not have a right to be released into the United States. In other 
words, it ruled that even if the government had to release them, it did 
not have to release them into Alexandria or Annandale or Falls Church 
or anywhere else in Northern Virginia that the Uighurs might like to 
go.
  The DC Circuit's ruling is important to national security in general 
and to the debate over where we should try foreign terrorists in 
particular. The DC Circuit noted that the Supreme Court has held that 
foreign nationals, without property or presence in the United States, 
have fewer legal rights than foreign nationals who are present on 
American soil.
  The DC Circuit also noted that the Supreme Court has repeatedly ruled 
that a sovereign has a right to control its borders, and that means it 
has a right to bar from being released into its territory foreign 
nationals whom it has not admitted onto its soil.
  In short, because these detainees remain at Guantanamo outside our 
borders, they have fewer legal rights than they would have if they were 
brought within our borders, including the right to be released into our 
civilian population.
  We don't know how the DC Circuit would have ruled if the Uighurs had 
been present on U.S. soil. But we do know a couple of things. First, 
the DC Circuit's reason for not releasing them into the United States 
was that they had not been brought into the United States. Let me say 
that again. The DC Circuit's reason for not releasing them in the 
United States was that they had not been brought here. Second, other 
foreign nationals who have committed murder and other serious crimes 
who were in the United States have been released here when our 
government could not transfer them to another country, either because 
they did not want to go to another country or because other countries 
did not want to take them.
  The administration and its defenders in the Senate say that because 
we have tried terrorists in civilian courts before, we should do so 
again. They say there is no problem with us doing so because the 
administration would never release detainees into the United States, by 
which they really mean to say the administration would not 
intentionally release detainees into the United States. Both assertions 
miss the mark.
  First, whether we can try terrorists here is not the issue. The issue 
is whether we should try terrorists here. We can try them here, but 
should we? Before he became Attorney General, Michael Mukasey was a 
noted Federal trial judge who presided over civilian trials of 
terrorists such as the trial of the so-called Blind Sheik, Omar Abdel 
Rahman, for the 1993 World Trade Center bombing. He has written that 
there are very good reasons we should not try terrorists in a civilian 
court. This is a judge who presided over a terrorist trial in a U.S. 
civilian court, and this is what he says: We should not try terrorists 
in civilian court, including the additional legal rights terrorists 
will receive if they are brought here.
  I ask unanimous consent to have printed in the Record at the 
conclusion of my remarks General Mukasey's recent op-ed on the topic.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. McCONNELL. Mr. President, second, once the administration brings 
detainees into the United States--right here in our country--it is no 
longer simply a matter for the administration. In other words, once 
they get here, the administration cannot entirely control the issue of 
whether they are going to be released. It is no longer about what it 
will or will not do. It is also about what a Federal judge will or will 
not do.
  As we saw with Judge Urbina and the Uighurs, a judge may very well 
agree with the legal arguments of Guantanamo detainees and order them 
released right here in the United States. In other words, no matter 
what the administration's intention may be, once we bring them here, 
they do not control the situation; the courts do.
  Those risks do not exist if the Obama administration does not bring 
the Guantanamo detainees into the United States. That risk does not 
exist if it leaves them at Guantanamo and tries them at the modern, 
multimillion-dollar courtroom at Guantanamo Bay under the very military 
commission rules it has now rewritten to its liking and which we will 
soon vote on when we consider the Defense authorization conference 
report.
  The Supreme Court should affirm the DC Circuit Court's decision and 
let the political branches maintain control over our borders, including 
deciding whether and how foreign nationals outside our borders may be 
admitted within them.
  If it does, it will bring clarity to the debate over whether 
terrorist detainees at Guantanamo Bay ought to be transferred to the 
United States. That clarity is this: If we want certitude that foreign 
terrorists detained at Guantanamo Bay are not released into the United 
States, then do not bring them here in the first place.
  Mr. President, I repeat. We could try terrorists in the United 
States--we could do that--but the issue is should we do that. The 
answer is no.
  I yield the floor.

                               Exhibit 1

             [From the Wall Street Journal, Oct. 19, 2009]

             Civilian Courts Are No Place To Try Terrorists

                        (By Michael B. Mukasey)

       The Obama administration has said it intends to try several 
     of the prisoners now detained at Guantanamo Bay in civilian 
     courts

[[Page 25338]]

     in this country. This would include Khalid Sheikh Mohammed, 
     the mastermind of the Sept. 11, 2001 terrorist attacks, and 
     other detainees allegedly involved. The Justice Department 
     claims that our courts are well suited to the task.
       Based on my experience trying such cases, and what I saw as 
     attorney general, they aren't. That is not to say that 
     civilian courts cannot ever handle terrorist prosecutions, 
     but rather that their role in a war on terror--to use an 
     unfashionable harsh phrase--should be, as the term ``war'' 
     would suggest, a supporting and not a principal role.
       The challenges of a terrorism trial are overwhelming. To 
     maintain the security of the courthouse and the jail 
     facilities where defendants are housed, deputy U.S. marshals 
     must be recruited from other jurisdictions; jurors must be 
     selected anonymously and escorted to and from the courthouse 
     under armed guard; and judges who preside over such cases 
     often need protection as well. All such measures burden an 
     already overloaded justice system and interfere with the 
     handling of other cases, both criminal and civil.
       Moreover, there is every reason to believe that the places 
     of both trial and confinement for such defendants would 
     become attractive targets for others intent on creating 
     mayhem, whether it be terrorists intent on inflicting 
     casualties on the local population, or lawyers intent on 
     filing waves of lawsuits over issues as diverse as whether 
     those captured in combat must be charged with crimes or 
     released, or the conditions of confinement for all prisoners, 
     whether convicted or not.
       Even after conviction, the issue is not whether a maximum-
     security prison can hold these defendants; of course it can. 
     But their presence even inside the walls, as proselytizers if 
     nothing else, is itself a danger. The recent arrest of U.S. 
     citizen Michael Finton, a convert to Islam proselytized in 
     prison and charged with planning to blow up a building in 
     Springfield, Ill., is only the latest example of that 
     problem.
       Moreover, the rules for conducting criminal trials in 
     federal courts have been fashioned to prosecute conventional 
     crimes by conventional criminals. Defendants are granted 
     access to information relating to their case that might be 
     useful in meeting the charges and shaping a defense, without 
     regard to the wider impact such information might have. That 
     can provide a cornucopia of valuable information to 
     terrorists, both those in custody and those at large.
       Thus, in the multidefendant terrorism prosecution of Sheik 
     Omar Abdel Rahman and others that I presided over in 1995 in 
     federal district court in Manhattan, the government was 
     required to disclose, as it is routinely in conspiracy cases, 
     the identity of all known co-conspirators, regardless of 
     whether they are charged as defendants. One of those co-
     conspirators, relatively obscure in 1995, was Osama bin 
     Laden. It was later learned that soon after the government's 
     disclosure the list of unindicted co-conspirators had made 
     its way to bin Laden in Khartoum, Sudan, where he then 
     resided. He was able to learn not only that the government 
     was aware of him, but also who else the government was aware 
     of.
       It is not simply the disclosure of information under 
     discovery rules that can be useful to terrorists. The 
     testimony in a public trial, particularly under the probing 
     of appropriately diligent defense counsel, can elicit 
     evidence about means and methods of evidence collection that 
     have nothing to do with the underlying issues in the case, 
     but which can be used to press government witnesses to either 
     disclose information they would prefer to keep confidential 
     or make it appear that they are concealing facts. The 
     alternative is to lengthen criminal trials beyond what is 
     tolerable by vetting topics in closed sessions before they 
     can be presented in open ones.
       In June, Attorney General Eric Holder announced the 
     transfer of Ahmed Ghailani to this country from Guantanamo. 
     Mr. Ghailani was indicted in connection with the 1998 bombing 
     of U.S. Embassies in Kenya and Tanzania. He was captured in 
     2004, after others had already been tried here for that 
     bombing.
       Mr. Ghailani was to be tried before a military commission 
     for that and other war crimes committed afterward, but when 
     the Obama administration elected to close Guantanamo, the 
     existing indictment against Mr. Ghailani in New York 
     apparently seemed to offer an attractive alternative. It may 
     be as well that prosecuting Mr. Ghailani in an already 
     pending case in New York was seen as an opportunity to 
     illustrate how readily those at Guantanamo might be 
     prosecuted in civilian courts. After all, as Mr. Holder said 
     in his June announcement, four defendants were ``successfully 
     prosecuted'' in that case.
       It is certainly true that four defendants already were 
     tried and sentenced in that case. But the proceedings were 
     far from exemplary. The jury declined to impose the death 
     penalty, which requires unanimity, when one juror disclosed 
     at the end of the trial that he could not impose the death 
     penalty--even though he had sworn previously that he could. 
     Despite his disclosure, the juror was permitted to serve and 
     render a verdict.
       Mr. Holder failed to mention it, but there was also a fifth 
     defendant in the case, Mamdouh Mahmud Salim. He never 
     participated in the trial. Why? Because, before it began, in 
     a foiled attempt to escape a maximum security prison, he 
     sharpened a plastic comb into a weapon and drove it through 
     the eye and into the brain of Louis Pepe, a 42-year-old 
     Bureau of Prisons guard. Mr. Pepe was blinded in one eye and 
     rendered nearly unable to speak.
       Salim was prosecuted separately for that crime and found 
     guilty of attempted murder. There are many words one might 
     use to describe how these events unfolded; ``successfully'' 
     is not among them.
       The very length of Mr. Ghailani's detention prior to being 
     brought here for prosecution presents difficult issues. The 
     Speedy Trial Act requires that those charged be tried within 
     a relatively short time after they are charged or captured, 
     whichever comes last. Even if the pending charge against Mr. 
     Ghailani is not dismissed for violation of that statute, he 
     may well seek access to what the government knows of his 
     activities after the embassy bombings, even if those 
     activities are not charged in the pending indictment. Such 
     disclosures could seriously compromise sources and methods of 
     intelligence gathering.
       Finally, the government (for undisclosed reasons) has 
     chosen not to seek the death penalty against Mr. Ghailani, 
     even though that penalty was sought, albeit unsuccessfully, 
     against those who stood trial earlier. The embassy bombings 
     killed more than 200 people.
       Although the jury in the earlier case declined to sentence 
     the defendants to death, that determination does not bind a 
     future jury. However, when the government determines not to 
     seek the death penalty against a defendant charged with 
     complicity in the murder of hundreds, that potentially 
     distorts every future capital case the government prosecutes. 
     Put simply, once the government decides not to seek the death 
     penalty against a defendant charged with mass murder, how can 
     it justify seeking the death penalty against anyone charged 
     with murder--however atrocious--on a smaller scale?
       Even a successful prosecution of Mr. Ghailani, with none of 
     the possible obstacles described earlier, would offer no 
     example of how the cases against other Guantanamo detainees 
     can be handled. The embassy bombing case was investigated for 
     prosecution in a court, with all of the safeguards in 
     handling evidence and securing witnesses that attend such a 
     prosecution. By contrast, the charges against other detainees 
     have not been so investigated.
       It was anticipated that if those detainees were to be tried 
     at all, it would be before a military commission where the 
     touchstone for admissibility of evidence was simply relevance 
     and apparent reliability. Thus, the circumstances of their 
     capture on the battlefield could be described by affidavit if 
     necessary, without bringing to court the particular soldier 
     or unit that effected the capture, so long as the affidavit 
     and surrounding circumstances appeared reliable. No such 
     procedure would be permitted in an ordinary civilian court.
       Moreover, it appears likely that certain charges could not 
     be presented in a civilian court because the proof that would 
     have to be offered could, if publicly disclosed, compromise 
     sources and methods of intelligence gathering. The military 
     commissions regimen established for use at Guantanamo was 
     designed with such considerations in mind. It provided a way 
     of handling classified information so as to make it available 
     to a defendant's counsel while preserving confidentiality. 
     The courtroom facility at Guantanamo was constructed, at a 
     cost of millions of dollars, specifically to accommodate the 
     handling of classified information and the heightened 
     security needs of a trial of such defendants.
       Nevertheless, critics of Guantanamo seem to believe that if 
     we put our vaunted civilian justice system on display in 
     these cases, then we will reap benefits in the coin of world 
     opinion, and perhaps even in that part of the world that 
     wishes us ill. Of course, we did just that after the first 
     World Trade Center bombing, after the plot to blow up 
     airliners over the Pacific, and after the embassy bombings in 
     Kenya and Tanzania.
       In return, we got the 9/11 attacks and the murder of nearly 
     3,000 innocents. True, this won us a great deal of goodwill 
     abroad--people around the globe lined up for blocks outside 
     our embassies to sign the condolence books. That is the kind 
     of goodwill we can do without.

  The PRESIDING OFFICER. The Senator from Arizona is recognized.


                        Campaign Finance Reform

  Mr. McCAIN. Mr. President, I am joined by my friend and colleague and 
fellow warrior, Senator Feingold. He and I both have some remarks to 
make. I was chosen to go first, and then Senator Feingold, I know, will 
also want to address what we think is a very important issue. This is 
the issue of the U.S. Supreme Court case Citizens United v. Federal 
Election Commission.
  On September 9, the U.S. Supreme Court heard oral arguments from both

[[Page 25339]]

sides in the Citizens United v. Federal Election Commission. The 
implications of this case are very serious, and the Supreme Court's 
decision could result in the unraveling of over 100 years of 
congressional action and judicial precedent with respect to corporate 
spending in political campaigns. Senator Feingold and I were present in 
the Supreme Court chamber for the arguments in this case. I commend 
both sides for presenting their case in a thoughtful, intelligent 
manner. However, there was one part of the argument I found 
particularly disturbing.
  While responding to a question from Justice Alito, the Solicitor 
General was interrupted by Justice Scalia, who said:

       Congress has a self-interest. I mean, we--we are suspicious 
     of Congressional action in the First Amendment area precisely 
     because we--at least I am--

  Here is the interesting part, when Justice Scalia said:

       I doubt that one can expect a body of incumbents to draw 
     election restrictions that do not favor incumbents. Now is 
     that excessively cynical of me? I don't think so.

  Yes, I think it is excessively cynical. I take great exception to 
Justice Scalia's statement, as should every Member of both Houses of 
Congress. It is an affront to the thousands of good, decent, honorable 
men and women who have served this Nation in these Halls for well over 
200 years. Not only was Justice Scalia's statement excessively cynical, 
it showed his unfortunate lack of understanding of the facts and 
history of campaign reform. Throughout our history, America has faced 
periods of political corruption, and in every instance, Congress has 
risen above its own self-interest and enacted the necessary reforms to 
address the scandals and corruption that have plagued our democratic 
institutions over time and throughout our history. The Tillman Act in 
1907, the Publicity Act of 1910, the Federal Corrupt Practices Act in 
1925, the Public Utilities Holding Act in 1935, the Hatch Act in 1939, 
the Smith-Connelly Act in 1943, the Taft-Hartley Act of 1947, the Long 
Act in 1968, the Federal Election Campaign Act in 1974, and the 
bipartisan Campaign Reform Act in 2002 are just some of the reforms 
enacted by Congress over the years to address corruption in our 
government and in our campaigns.
  Simply put, history has proven Justice Scalia wrong in his assessment 
that Congress will not act in anything but a self-serving manner.
  Justice Scalia's statement was also remarkable in that it exposed his 
belief that when it comes to issues relating to campaign reform, he 
somehow is a better arbiter of what is needed to reform the electoral 
process than the Congress or the American people. With all due respect, 
that is not the job of the judicial branch. Judges who stray beyond 
their constitutional role to try and take Congress's place as 
policymakers falsely believe that judges somehow have a greater insight 
into what legislation is necessary and proper than representatives who 
are duly elected by the people and accountable to them every several 
years.
  Activist judges--regardless of whether it is liberal or conservative 
activism--assume the judiciary is a superlegislature of moral 
philosophers, entitled to support Congress's policy choices whenever 
they choose. I believe this judicial activism is wrong and is contrary 
to the Constitution.
  Our Constitution is very clear in its delineation and dispersement of 
power. It solely tasks the Congress with creating law, not the courts. 
I have a long history of opposing activist judges. Judicial activism 
demonstrates a lack of respect for the popular will, and that is at 
fundamental odds with our republican system of government. I believe a 
judge should seek to uphold all acts of Congress and State 
legislatures, unless they clearly violate a specific section of the 
Constitution, and refrain from interpreting the law in a manner which 
creates new law. That is a fundamentally conservative position I have 
held throughout my career. I wish Justice Scalia shared that position.
  Let us be very clear. At stake in the Citizens United case are the 
voices of millions and millions of Americans that could be drowned out 
by large corporations if the decades-old restrictions on corporate 
electioneering are rescinded. Overturning Supreme Court precedent would 
open the floodgates to unlimited corporate and union spending during 
elections and undermine election laws across the country. Those able to 
spend tens of millions of dollars, such as a Fortune 500 company or a 
big labor union, are much more likely to be heard during an election 
than the average American voter is. For this reason, I have always 
advocated laws that would prevent big-moneyed special interests from 
drowning out the voices of individual American citizens in elections 
and dominating the decisionmaking process of our government. Contrary 
to some of my critics, I am a firm believer in the first amendment.
  For more than 100 years, laws have stood to limit corporate donations 
to political candidates and campaigns--for more than 100 years. The 
concern about corporate involvement in campaigns is not new in America. 
On September 3, 1897, in a speech on government and citizenship, Elihu 
Root, who would go on to become Theodore Roosevelt's Secretary of State 
and a Nobel Peace Prize winner, said:

       The idea . . . is to prevent the great moneyed corporations 
     of the country from furnishing the money with which to elect 
     members of the legislature . . . in order that those members 
     of the legislature may vote to protect the corporations. It 
     is to prevent the great railroad companies, the great 
     insurance companies, the great telephone companies, the great 
     aggregations of wealth, from using their corporate funds, 
     directly or indirectly, to send members of the legislature to 
     these halls, in order to vote for their protection and the 
     advancement of their interests as against those of the 
     public.
       It strikes, Mr. Chairman, at a constantly growing evil in 
     our political affairs, which has, in my judgment, done more 
     to shake the confidence of the plain people of small means in 
     our political institutions, than any other practice which has 
     ever obtained since the foundation of our government.

  Remember, this was in 1897. He went on to say:

       And I believe that the time has come when something ought 
     to be done to put a check upon the giving of $50,000 or 
     $100,000 by a great corporation toward political purposes, 
     upon the understanding that a debt is created from a 
     political party to it; a debt to be recognized and repaid 
     with the votes of representatives in the legislature and in 
     Congress, or by the action of administrative or executive 
     officers who have been elected in a measure through the use 
     of the money so contributed.

  Additionally, one can make the case that the concern about corporate 
influence extends as far back as our Founding Fathers. In 1816, Thomas 
Jefferson wrote:

       I hope we shall crush in its birth the aristocracy of our 
     moneyed corporations which dare already to challenge our 
     government in a trial of strength, and bid defiance to the 
     laws of our country.

  Kentucky was the first State to ban corporations from spending their 
funds in State elections in 1891, and by 1897 Florida, Missouri, 
Nebraska, and Tennessee had all enacted similar corporate spending 
prohibitions in their State elections. While some States began enacting 
limits on the influence of money on politics during the Civil War era, 
Congress did not begin to pass major campaign finance regulations until 
some decades later. By that time, political contributions by major 
corporate interests and business leaders dominated campaign 
fundraising, and this development sparked the first major movement for 
national reform.
  Progressive reformers, such as President Theodore Roosevelt and 
investigative journalists, charged that these business interests were 
attempting to gain special access and favors; thereby, corrupting the 
democratic process. This reform movement, combined with allegations of 
financial impropriety in the 1904 Presidential election, resulted in 
the enactment of significant reforms.
  On October 1, 1904, Joseph Pulitzer published an editorial in the New 
York World questioning President Roosevelt's ties to many of the large 
corporations that had donated to his campaign. Those questions led 
Roosevelt's opponent, Judge Alton Parker, to describe the donations as 
blackmail and insinuated there was a quid pro quo involved. President 
Roosevelt responded angrily, calling the accusations monstrous and 
said:


[[Page 25340]]

       The assertion that there has been any blackmail, direct or 
     indirect . . . is a falsehood. The assertion that there has 
     been made any pledge or promise or that there has been any 
     understanding as to future immunities or benefits, in 
     recognition from any source is a wicked falsehood.

  President Roosevelt, not wanting to give the appearance of improper 
influence, directed his staff to return a $100,000 contribution from 
the Standard Oil Corporation. In his memo he wrote:

       We cannot under any circumstances afford to take a 
     contribution which can be even improperly construed as 
     putting us under an improper obligation.

  The allegations of impropriety also led Roosevelt to call for an end 
to corporate donations to campaigns. In his fifth annual message to the 
Congress on December 5, 1905, Roosevelt said:

       The power of the Government to protect the integrity of the 
     elections of its own officials is inherent and has been 
     recognized and affirmed by repeated declarations of the 
     Supreme Court. There is no enemy of free government more 
     dangerous and none so insidious as the corruption of the 
     electorate.

  He warned:

       If [legislators] are extorted by any kind of pressure or 
     promise, express or implied, direct or indirect, in the way 
     of favor or immunity, then the giving or receiving becomes 
     not only improper but criminal. All contributions by 
     corporations to any political committee or for any political 
     purpose should be forbidden by law; directors should not be 
     permitted to use stockholders money for such purposes; and, 
     moreover, a prohibition of this kind would be, as far as it 
     went, an effective method of stopping the evils aimed at in 
     the corrupt practices acts. Not only should both the national 
     and the several State legislatures forbid any officer of a 
     corporation from using the money of the corporation in or 
     about any election, but they should also forbid such use of 
     money in connection with any legislation.

  Again, the following year, in his sixth annual message to Congress in 
December 1906, President Roosevelt tried to limit corporate influence, 
stating:

       I again recommend a law prohibiting all corporations from 
     contributing to the campaign expenses of any party. Such a 
     bill has already passed one House of Congress. Let 
     individuals contribute as they desire . . .

  I repeat what he said:

       Let individuals contribute as they desire; but let us 
     prohibit in effective fashion all corporations from making 
     contributions for any political purpose, directly or 
     indirectly.

  In January 1907, Theodore Roosevelt signed into law the Tillman Act. 
This law prohibited nationally chartered banks and corporations from 
contributing to campaigns. In the report to accompany the Senate 
version of the legislation, dated April 27, 1906, the Senate Committee 
on Privileges and Elections wrote:

       The evils of the use of money in connection with political 
     elections are so generally recognized that the committee 
     deems it unnecessary to make any argument in favor of the 
     general purpose of this measure. It is in the interest of 
     good government and calculated to promote purity in the 
     selection of public officials.''

  Following passage of the Tillman Act, Roosevelt again addressed the 
issue in his Seventh Annual Message to Congress in December, 1907. He 
said:

       Under our form of government voting is not merely a right 
     but a duty, and, moreover, a fundamental and necessary duty 
     if a man is to be a good citizen. It is well to provide that 
     corporations shall not contribute to Presidential or National 
     campaigns, and furthermore to provide for the publication of 
     both contributions and expenditures.

  Although the Tillman Act constituted a landmark in Federal law, 
according to campaign finance expert Anthony Corrado, ``its adoption 
did not quell the cries for reform. Eliminating corporate influence was 
only one of the ideas being advanced at this time to clean up political 
finance.'' In the years following the passage of the Tillman Act, 
reducing the influence of wealthy individuals and labor unions became a 
concern and reformers pushed for further limits on donations.
  Consequently, in 1947, Congress enacted the Taft-Hartley Act, which 
explicitly banned corporate and labor union expenditures in Federal 
campaigns. In doing so, Senator Robert Taft made clear that the purpose 
of the new language was simply to affirm what had been understood to 
always be the case--that the 1907 corporate ban had prohibited 
corporate expenditures, or indirect contributions, as well as direct 
corporate contributions.
  A ban on corporate expenditures in campaigns has been consistently 
upheld by the Supreme Court as constitutional and as ``firmly embedded 
in our law.''
  The constitutionality of the ban on corporate campaign expenditures 
was upheld by the Supreme Court in the Austin v. Michigan Chamber of 
Commerce decision in 1990 and reaffirmed by the Court in the McConnell 
v. Federal Election Commission decision in 2003. And the corporate 
expenditure ban had been commented on favorably by the Court in earlier 
cases.
  In 1990, in the Austin case, the Supreme Court acknowledged the 
importance of maintaining the integrity of the political process. From 
the Court's opinion:

       Michigan identified as a serious danger the significant 
     possibility that corporate political expenditures will 
     undermine the integrity of the political process, and it has 
     implemented a narrowly tailored solution to that problem. By 
     requiring corporations to make all independent political 
     expenditures through a separate fund made up of money 
     solicited expressly for political purposes, the Michigan 
     Campaign Finance Act reduces the threat that huge corporate 
     treasuries amassed with the aid of favorable state laws will 
     be used to influence unfairly the outcome of elections.

  In the McConnell case, the Supreme Court recognized its long-standing 
support for the constitutionality of bans on corporate campaign 
expenditures going back to its Buckley decision in 1976. From the 
Court's decision:

       Since our decision in Buckley, Congress' power to prohibit 
     corporations and unions from using funds in their treasuries 
     to finance advertisements expressly advocating the election 
     or defeat of candidates in federal elections has been firmly 
     embedded in our law.

  Additionally, in 1982, in the National Right to Work Committee case, 
the Supreme Court, in an opinion authored by Chief Justice William 
Rhenquist, stated regarding the Federal ban on corporate and labor 
union expenditures:

       The careful legislative adjustment of the federal electoral 
     laws, in a cautious advance, step by step, to account for the 
     particular legal and economic attributes of corporations and 
     labor organizations warrants considerable deference. [I]t 
     also reflects a permissible assessment of the dangers posed 
     by those entities to the electoral process.
       In order to prevent both actual and apparent corruption, 
     Congress aimed a part of its regulatory scheme at 
     corporations. The statute reflects a legislative judgment 
     that the special characteristics of the corporate structure 
     require particularly careful regulation. Nor will we second 
     guess a legislative determination as to the need for 
     prophylactic measures where corruption is the evil feared. As 
     we said in California Medical Association v. FEC, the 
     ``differing structures and purposes; of different entities 
     `may require different forms of regulation in order to 
     protect the integrity of the electoral process . . .'''
       The governmental interest in preventing both actual 
     corruption and the appearance of corruption of elected 
     representatives has long been recognized, First National Bank 
     of Boston v. Bellotti, supra, and there is no reason why it 
     may not in this case be accomplished by treating unions, 
     corporations and similar organizations different from 
     individuals.

  In 1986, in the Massachusetts Citizens for Life case, the Supreme 
Court stated regarding the Federal ban on corporate expenditures in 
campaigns:

       This concern over the corrosive influence of concentrated 
     corporate wealth reflects the conviction that it is important 
     to protect the integrity of the marketplace of political 
     ideas . . . Direct corporate spending on political activity 
     raises the prospect that resources amassed in the economic 
     marketplace may be used to provide an unfair advantage in the 
     political marketplace . . . The resources in the treasury of 
     a business corporation . . . are not an indication of popular 
     support for the corporation's political ideas. They reflect 
     instead the economically motivated decisions of investors and 
     customers. The availability of these resources may make a 
     corporation a formidable political presence, even though the 
     power of the corporation may be no reflection of the power of 
     its ideas.
       By requiring that corporate independent expenditures be 
     financed through a political committee expressly established 
     to engage in campaign spending, section 441b seeks to prevent 
     this threat to the political marketplace. The resources 
     available to this fund, as opposed to the corporate treasury, 
     in fact reflect popular support for the political positions 
     of the committee.

  If anyone has doubts about the influence of big-moneyed special 
interests

[[Page 25341]]

on policy makers in this town, let me relay a personal observation. 
During the Senate Commerce Committee's consideration of the 1996 
Telecommunications Act, every company affected by the legislation had 
purchased a seat at the table with soft money. Consequently, the bill 
attempted to protect them all, a goal that is obviously incompatible 
with competition. Consumers, who only give us their votes, had no seat 
at the table, and the lower prices that competition produces never 
materialized. Cable rates went up. Phone rates went up. And huge 
broadcasting giants received billions of dollars in digital spectrum, 
property that belonged to the American people, for free. They got it 
for free, billions of dollars worth of spectrum.
  Information gathered from various sources in the press at the time 
indicated that the special interest groups involved spent nearly $150 
million to lobby Congress on telecommunications reform--and they all 
came out on top--at the expense of the American consumer.
  Similarly, the pharmaceutical industry has spent millions of dollars 
to sway lawmakers against the idea of drug importation. In the 2008 
election cycle, pharmaceutical companies gave almost $30 million in 
campaign contributions to Members of Congress. Just this year, 
according to an article published in the June 3 edition of The Hill, 
the prescription drug industry has given more than one million dollars 
to both Republicans and Democrats. And these contributions were from 
the limited funds of corporate PACs--a fraction of the flood of money 
that could be spent out of corporate treasuries if the Supreme Court 
changes the law by judicial fiat.
  As my colleagues know, for many years my colleague from Wisconsin, 
Senator Feingold and I fought to ban soft money--the large, unregulated 
donations from corporations, labor unions, and wealthy individuals--
from Federal elections. As the sponsors of the Bipartisan Campaign 
Finance Reform Act, we submitted, together with our colleagues from the 
House, Representatives Shays and Meehan, a brief for the court. In this 
brief we stated:

       More fundamentally, Austin and McConnell were correctly 
     decided. Unlimited expenditures supporting or opposing 
     candidates may create at least the appearance of corruption, 
     as Caperton v. A.T. Massey Coal Co. illustrates. The 
     tremendous resources business corporations and unions can 
     bring to bear on elections, and the greater magnitude of the 
     resulting apparent corruption, amply justify treating 
     corporate and union expenditures differently from those by 
     individuals and ideological nonprofit groups.
       So, too, does the countervailing free-speech interest of 
     the many shareholders who may not wish to support corporate 
     electioneering but have no effective means of controlling 
     what corporations do with what is ultimately the 
     shareholders' money. Austin was rightly concerned with the 
     corruption of the system that will result if campaign 
     discourse becomes dominated not by individual citizens--whose 
     right it is to select their political representatives--but by 
     corporate and union war-chests amassed as a result of the 
     special benefits the government confers on these artificial 
     ``persons.'' That concern remains a compelling justification 
     for restrictions on using corporate treasury funds for 
     electoral advocacy--constraints that ban no speech but only 
     require that it be funded by individuals who have chosen to 
     do so.
       The holdings of Austin and McConnell--that it is 
     constitutional to require business corporations to use 
     segregated funds contributed by shareholders, officers and 
     employees for express candidate advocacy or its functional 
     equivalent--remain sound today. The interests in preventing 
     actual or apparent corruption of the electoral process and 
     protecting shareholders provide compelling justification for 
     such requirements, which neither unduly burden nor 
     overbroadly inhibit protected speech.
       The corporate PAC option, moreover, is ideally suited to 
     balancing the First Amendment interests of corporate entities 
     and their shareholders. It allows the corporation to direct 
     political spending only to the extent shareholders have 
     personally decided to contribute for that specific purpose. 
     It thus ensures that the corporation may have a voice, but 
     one that is not subsidized unwillingly by those who may 
     disagree with its electoral message. And there is no basis in 
     the record for concluding that PACs are inadequate or unduly 
     burdensome for business corporations, whatever may be true of 
     certain ideological nonprofit corporations. Indeed, PAC 
     requirements pale in comparison with the detailed 
     recordkeeping and accounting otherwise required of 
     corporations and unions.

  The ability of corporate campaign expenditures to buy influence with 
Federal officeholders, and to create the appearance of such influence-
buying is sadly evident in nearly every aspect of the legislative 
process. This fact was recognized in the McConnell case.
  The brief filed in the McConnell case by me and my colleagues stated:

       Not surprisingly, the McConnell record provided strong 
     corroboration that corporate and union expenditures on ads 
     that were the functional equivalent of express advocacy 
     created the appearance of corruption. Based on that record, 
     Judge Kollar-Kotelly found that such expenditures ``permit 
     corporations and labor unions to inject immense aggregations 
     of wealth into the process'' and ``radically distort the 
     electoral landscape.'' She further found that candidates are 
     ``acutely aware of'' and ``appreciate'' such expenditures, 
     and ``feel indebted to those who spend money to help get them 
     elected.'' She concluded that ``the record demonstrates that 
     candidates and parties appreciate and encourage corporations 
     and labor unions to deploy their large aggregations of wealth 
     into the political process,'' and that ``the record presents 
     an appearance of corruption stemming from the dependence of 
     officeholders and parties on advertisements run by these 
     outside groups.''

  According to the Solicitor General's brief, the record in the 
McConnell case showed that:

       Federal officeholders and candidates were aware of and felt 
     indebted to corporations and unions that financed 
     electioneering advertisements on their behalf or against 
     their opponents.

  The brief further stated:

       [T]he record compiled in the McConnell case indicated that 
     corporate spending on candidate-related speech, even if 
     conducted independent of candidates, had come to be used as a 
     means of currying favor with and attempting to influence 
     Federal office-holders.

  It is important for us to remember that this case does not affect 
solely the integrity of Federal elections. The States also have a great 
deal at stake in this case. In a brief filed in the Citizens United 
case, 26 State attorneys general wrote that ``Courts have repeatedly 
upheld these State and Federal corporate electioneering restrictions 
from their inception.''
  In their brief, the attorneys general wrote:

       This case does not concern the traditional regulation of 
     corporate spending by State Laws. Instead it presents the 
     application of a recent Federal statute to a novel form of 
     political campaigning through the medium of video-on-demand 
     and the message of a ninety-minute film. These and other 
     political campaign innovations present an occasion to draw on 
     State law experiments, not end them. The court cannot reach 
     the validity of these laws under Austin without departing 
     from its conventional approach to constitutional avoidance 
     and as-applied review of campaign finance statutes, and 
     ignoring its cautions against facial challenges in election 
     law generally.
       Austin follows a century of campaign finance law at the 
     State and Federal level honed by six decades of this Court's 
     holdings. Those decisions, and the State and Federal laws 
     that gave rise to and rely on them, delineate a workable 
     segregated-fund requirement for corporate electioneering that 
     is embedded in campaign laws and practice at the Federal and 
     State level. While imposing minimal burdens on corporations, 
     the segregated fund protects the integrity of the political 
     process from the corrupting influence of corporate executives 
     funding political campaigns that have no proven support from 
     the shareholders or customers whose money pays for the 
     advocacy. The flourishing of corporate speech through PACs, 
     and continued harms of direct corporate electioneering, has 
     vindicated rather than undermined Austin's approval of 
     segregated funds.

  It is clear that the Austin and McConnell cases were correctly 
decided on the merits and those decisions remain sound today. According 
to the brief filed by the U.S. Solicitor General:

       The Court in Austin held that corporations may 
     constitutionally be prohibited from financing electoral 
     advocacy with funds derived from business activities. That 
     holding was correct when issued and should not be overturned 
     now. Use of corporate treasury funds for electoral advocacy 
     is inherently likely to corrode the political system both by 
     actually corrupting political officeholders and by creating 
     the appearance of corruption. Moreover, such use of corporate 
     funds diverts shareholders' money to the support of 
     candidates who the shareholders may oppose.
       Congress's interest in preventing these pernicious 
     consequences is compelling, and Congress has chosen a valid 
     message of achieving it, requiring a corporation to fund its

[[Page 25342]]

     electoral advocacy through the voluntary contributions of 
     officers and shareholders who agree with its political 
     statements.

  The Solicitor General's brief further stated:

       Corporate participation in candidate elections creates a 
     substantial risk of corruption or the appearance thereof. 
     Corporations can use electoral spending to curry favor with 
     particular candidates and thus to acquire undue influence 
     over the candidates' behavior once in office.
       The record in McConnell, which is by far the most extensive 
     body of evidence ever compiled on these issues, indicates 
     that during the period leading up to BCRA's enactment, 
     Federal office-holders and candidates were aware of and felt 
     indebted to corporations and unions that financed 
     electioneering advertisements on their behalf or against 
     their opponents.
       The nature of business corporations makes corporate 
     political activity inherently more likely than individual 
     advocacy to cause quid pro quo corruption or the appearance 
     of such corruption. Even minor modifications in complex 
     legislation have great potential to benefit or burden 
     particular companies, industries, or sectors. The economic 
     stake of corporations in the nuances of such matters as 
     industry-specific tax credits, subsidies, or tariffs 
     generally dwarfs that of any set of individuals.
       And when those benefits can be obtained through a game of 
     ``pay to play,'' corporations are better suited than 
     individuals to afford the ante. Corporate managers need not 
     assemble a coalition of the like-minded; they can draw on the 
     firm's entire capitalization without seeking the approval of 
     shareholders. If only businesses can afford the investment 
     necessary to pursue rents in this way, only businesses can 
     reap the (even larger) reward. And the public perception that 
     businesses reap such rewards from legislators whom they 
     support in campaigns creates an appearance of corruption that 
     corrodes popular confidence in our democracy.

  At the heart of the Citizens United case is a critical question: Do 
the cherished individual rights protected by the Constitution extend in 
the same manner to corporations? Corporations, after all, are 
artificial creations of law, provided for by acts of Congress and the 
State legislaturs, and endowed under these laws with perpetual 
existence, special tax status, and other privileges, all for the sole 
purpose of economic gain. The resolution of this question in the 
affirmative will have wide-ranging and unpredictable results for our 
legal system.
  For example, if the Court determines corporations have first 
amendment rights, it will be logical that corporations also have fifth 
amendment rights against self-incrimination. Is a corporation ``endowed 
by its creator with inalienable rights''? Just last year the Court 
found that the second amendment right to bear arms is a personal right. 
If the Court were to determine that corporations had the same rights as 
persons, would corporations have the right to arm themselves? Would 
lobbies of Fortune 500 companies contain grand weapon caches? The 
absurdity of the argument should be apparent to the members of the 
Court.
  John Marshall, former Chief Justice of the Supreme Court, wrote in 
1819 that corporations were ``an artificial being, invisible, 
intangible.'' Therefore, he stated, ``Being the more creature of law, 
it possesses only those properties which the charter of its creation 
confers upon it, either expressly or as incidental to its very 
existence.''
  Essential to a corporation's existence is a first amendment right to 
speak about their products and services. Essential to a corporation's 
existence is the right to sue for the theft of its intellectual 
property. Essential to a corporation's existence is the right to enter 
into contracts. Not essential to a corporation's existence is the 
ability to contribute unlimited funds to political candidates.
  It is for this reason and others that the Supreme Court has 
repeatedly and consistently upheld a ban on direct contributions to 
political candidates by corporations and unions. Chief Justice Roberts 
stated at one point during the argument in the Citizens United case 
that: ``We do not put our First Amendment rights in the hands of FEC 
bureaucrats.'' I agree. And that is why the Court has repeatedly upheld 
bans passed by the Congress of the United States and by the State 
legislators on unlimited corporate or union spending in elections.
  Under current law, corporations are free to give to political 
candidates through political action committees. In an editorial in the 
Boston Globe entitled ``Corporations Aren't People Yet,'' the editorial 
board rightly states: ``Even under current financial restrictions, 
health care industry groups are pouring millions of dollars into 
Congressional campaigns in the hope of thwarting reforms that might 
constrain their members.''
  A September 10, 2009 editorial in the Philadelphia Inquirer stated:

       Allowing corporations to flood elections with their 
     aggregate corporate wealth would place a heavy thumb on the 
     scales of democracy. If a certain industry did not like the 
     way a Senator voted on environmental regulations, for 
     example, there would be nothing to stop that industry from 
     dumping $200 million into the campaign of that Senator's 
     opponent.

  The editorial goes on to say:

       If the high court rules now that corporations have the same 
     political speech rights as individuals, average citizens will 
     have that much more trouble being heard . . . the distinction 
     between corporate speech and individual speech is clear 
     enough, and the importance of limiting the undue influence of 
     money and politics is significant enough that the court, in 
     all its wisdom, should leave well enough alone.

  I agree.
  In conclusion, the Court should not overturn precedent and Congress's 
clear intent to limit corporate contributions to political candidates. 
In summary, there are three simple points raised by the Court's 
consideration of the Citizens United case. First, whatever one thinks 
of a first amendment right for corporations, it is not appropriate for 
a nondemocratic branch of government to raise a question of the 
broadest scope at the last minute when such a question was not raised 
in the trial court and there is no ability to build a record.
  Congress is the most democratically elected branch of government and 
should be able to make laws that do not stand in the face of the 
Constitution whether or not the members of the Court would themselves 
support such legislation if they served in the elected branches of 
government.
  Secondly, the principle enshrined in law for many years was that 
corporations, because of their artificial legal nature and special 
privileges, including perpetual existence, pose a unique threat to our 
democracy. However, the current court seems poised to find that Thomas 
Jefferson, Theodore Roosevelt, and others were wrong despite there 
being no record built on this point in this case. In McConnell, there 
was a record built to support the decision. Here, the trial court never 
examined the idea of corporations having broad first amendment rights. 
The Court is reaching to find such a conclusion as part of the Citizens 
United case.
  Lastly, I stress again to my colleagues the implications of the 
decision the Court may reach in this case. The Court is considering a 
question that may lead to corporations being treated as ``persons'' 
under the Constitution, would allow corporations to assert a fifth 
amendment right to refuse to testify under oath and to keep documents 
from lawful investigations, and would allow corporations to be subject 
to individual tax brackets.
  Are my colleagues prepared to provide such rights to corporations? 
Are my colleagues prepared to pass legislation that taxes corporations 
and persons at the same rate? If the Court provides full first 
amendment rights to corporations, there is no reason that corporations 
could not receive the benefits as well as the responsibilities of being 
a person.
  Justice Sandra Day O'Connor wrote in the McConnell decision, and I 
think with such accuracy, that ``money, like water, will always find an 
outlet,'' and that the government was therefore justified in taking 
steps to prevent schemes developed to get around the contribution 
limits. Again, Justice O'Connor knew better than most jurists, as a 
former Arizona State Senator, and majority leader of the Arizona State 
Senate. I hope and wish that the current Court heeds the words of this 
brilliant jurist who had real-life experiences in politics.
  Needless to say, I am very concerned about the integrity of our 
elections should the Supreme Court rule to overturn the Austin 
decision. I sincerely

[[Page 25343]]

hope that the Justices will practice restraint and rule in a manner 
consistent with judicial precedent and the Constitution of the United 
States of America.
  I again want to, as I have on many occasions, thank my friend from 
Wisconsin, a man of courage and a man of integrity, and a man I have 
always been proud to be associated with on issues such as these that 
are important to the integrity of the institution that we both try to 
serve with honor.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I thank the Senator from Arizona for all 
the work he has done over these many years to improve our campaign 
finance system. We have been partners in this effort for over a decade. 
In fact, it will soon be 15 years. Of course, there is no one in this 
body whom I admire more than John McCain. 
  In early September, Senator McCain and I had the opportunity to walk 
across the street to the Supreme Court and hear the oral argument in 
the Citizens United case. It was a morning of firsts: The first case 
that Justice Sonia Sotomayor has heard since the Senate confirmed her 
nomination to become only the third woman to sit on our Nation's 
highest court. And the first oral argument that Solicitor General Elena 
Kagan has done since becoming the first woman to hold that important 
position in our government.
  And it was the first time since the Tillman Act was passed in 1907 
prohibiting spending by corporations on elections, and the Taft-Hartley 
Act in 1947 clarified and strengthened that prohibition, that a 
majority of the Court has suggested it is prepared to hold that 
Congress and the many State legislatures that have passed similar laws 
have violated the Constitution. Such a decision could have a truly 
calamitous impact on our democracy.
  Until a few months ago, as the Senator from Arizona pointed out, no 
one had any idea that the Citizens United case would potentially become 
the vehicle for such a wholesale uprooting of the principles that have 
governed the financing of our elections for so long. The case started 
out as a simple challenge to the application of title II of the law 
that Senator McCain and I sponsored, the Bipartisan Campaign Reform Act 
of 2002. The issue was whether the provisions of BCRA relating to so-
called issue ads could constitutionally be applied to a full-length 
feature film about then-Presidential candidate Hillary Clinton. The 
movie was to be distributed solely as video on demand.
  Yet somehow at the end of its last term, instead of deciding the case 
on the basis of the briefs and arguments submitted by the parties early 
this year, the Court reached out and asked for supplemental briefing on 
whether it should overturn its decisions in McConnell v. FEC, the case 
that upheld BCRA in 2003, and Austin v. Michigan Chamber of Commerce, a 
1991 decision that upheld a State statute prohibiting corporate funding 
of campaign ads expressly advocating the election or defeat of a 
candidate. That set the stage for the recent special session to hear 
reargument in the case. And now we await the Court's verdict on whether 
these longstanding laws will be in jeopardy.
  I certainly hope the Court steps back from the brink. A decision to 
overturn the Austin decision would open the door to corporate spending 
on elections the likes of which this Nation truly has never seen. Our 
elections would become like NASCAR races--underwritten by companies. 
Only in this case, the corporate underwriters wouldn't just be seeking 
publicity, they would be seeking laws and policies that the candidates 
have the power to provide.
  We were headed well down that road in the soft money system that BCRA 
stopped. It may seem like a long time ago, but the Senator from Arizona 
and I remember that hundreds of millions of dollars were contributed by 
corporations and unions to the political parties between 1988 and 2002. 
The system led to scandals like the White House coffees and the sale of 
overnight stays in the Lincoln bedroom. The appearance of corruption 
was well documented in congressional hearings and fully justified the 
step that Congress took in 2002--prohibiting the political parties from 
accepting soft money contributions.
  Before BCRA was passed, corporations were making huge soft money 
donations. They were also spending money on phony issue ads. That is 
what title II was aimed at. But what they were not doing was running 
election ads that expressly advocated the election or defeat of a 
candidate. That has been prohibited in this country for at least 60 
years, though it is arguable that the Tillman Act in 1907 prohibited it 
40 years before that. So it is possible that the Court's decision will 
not just take us back to a pre-McCain-Feingold era, but back to the era 
of the robber baron in the 19th century. That result should frighten 
every citizen of this country. The Court seems poised to ignite a 
revolution in campaign financing with a stroke of its collective pen 
that no one contemplated even 6 months ago.
  While I have disagreed with many Supreme Court decisions, I have 
great respect for that institution and for the men and women who serve 
on the Court. But this step would be so damaging to our democracy and 
is so unwarranted and unnecessary that I must speak out. That is why 
Senator McCain and I have taken the unusual step of coming to the floor 
today.
  To overrule the Austin decision in this case, the Court would have to 
ignore several time-honored principles that have served for the past 
two centuries to preserve the public's respect for and acceptance of 
its decisions. First, it is a basic tenet of constitutional law that 
the Court will not decide a case on constitutional grounds unless 
absolutely necessary, and that if there is no choice but to reach a 
constitutional issue, the Court will decide the case as narrowly as 
possible.
  This is the essence of what some have called ``judicial restraint.'' 
What seems to be happening here though is the antithesis of judicial 
restraint. The Court seems ready to decide the broadest possible 
constitutional question--the constitutionality of all restrictions on 
corporate spending in connection with elections in an obscure case in 
which many far more narrow rulings are possible.
  The second principle is known as stare decisis, meaning that the 
Court respects its precedents and overrules them only in the most 
unusual of cases. Chief Justice John Roberts, whom many believe to be 
the swing justice in this case, made grand promises of what he called 
``judicial modesty,'' when he came before the Senate Judiciary 
Committee in 2005. Respect for precedent was a key component of the 
approach that he asked us to believe he possessed. Here is what he 
said:

       I do think that it is a jolt to the legal system when you 
     overrule a precedent. Precedent plays an important role in 
     promoting stability and evenhandedness. It is not enough--and 
     the court has emphasized this on several occasions--it is not 
     enough that you may think the prior decision was wrongly 
     decided. That really doesn't answer the question, it just 
     poses the question. And you do look at these other factors, 
     like settled expectations, like the legitimacy of the court, 
     like whether a particular precedent is workable or not, 
     whether a precedent has been eroded by subsequent 
     developments. All of those factors go into the determination 
     of whether to revisit a precedent under the principles of 
     stare decisis.

  So said then Judge Roberts. Talk about a jolt to the legal system. It 
is hard to imagine a bigger jolt than to strike down laws in over 20 
States and a Federal law that has been the cornerstone of the Nation's 
campaign finance system for 100 years. The settled expectations that 
would be upset by this decision are enormous. And subsequent 
developments surely have not shown that the Austin decision is 
unworkable. Indeed, the Court relied on it as recently as 2003 in the 
McConnell case and even cited it in the Wisconsin Right to Life 
decision just 2 years ago, written by none other than Chief Justice 
Roberts. To be sure, there are Justices on the Court who dissented from 
the Austin decision when it came down and continue to do so today. But 
if

[[Page 25344]]

stare decisis means anything, a precedent on which so many State 
legislatures and the American people have relied should not be cast 
aside simply because a few new Justices have arrived on the Court.
  Third, the courts decide cases only on a full evidentiary record so 
that all sides have a chance to put forward their best arguments and 
the court can be confident that it is making a decision based on the 
best information available. In this case, precisely because the Supreme 
Court reached out to pose a broad constitutional question that had not 
been raised below, there is no record whatsoever to which the Court can 
turn. None. The question here demands a complete record because the 
legal standard under prevailing first amendment law is whether the 
statute is designed to address a compelling State interest and is 
narrowly tailored to achieve that result. My colleagues may recall that 
when we passed the McCain-Feingold bill, a massive legislative record 
was developed to demonstrate the corrupting influence of soft money. 
And the facial constitutional challenge to that bill led to months of 
depositions and the building of an enormous factual record for the 
court. None of that occurred here. And furthermore, the over 20 States 
whose laws would be upended if Austin is overruled were given no 
opportunity to defend their legislation and show whatever legislative 
record had been developed when their statutes were enacted.
  Instead, the Court seems to be ready to rely on its intuition, its 
general sense of the political process. From what I observed at oral 
argument, that intuition is sorely lacking. One Justice blithely 
asserted that the 100-year-old congressional decision to bar corporate 
expenditures must have been motivated by the self-interest of Members 
of Congress as incumbent candidates, ignoring the fact that the modern 
Congress prohibited soft money contributions even though the vast 
majority of those contributions were used to support incumbents. 
Another Justice opined that it was paternalistic for Congress to be 
concerned about corporations using their shareholders' money for 
political purposes, even though most Americans invest through mutual 
funds and have little or no idea what corporations their money has 
actually gone to.
  For the Court to overrule Austin and McConnell in this case would 
require it to reject these three important principles of judicial 
modesty. It would amount to the unelected branch of government reaching 
out to strike down carefully considered and longstanding judgments of 
the most democratic branch. It would be, in my view, a completely 
improper exercise of judicial power.
  Let me discuss for a moment the consequences of this decision. A 
fundamental principle of our democracy is that the people elect their 
representatives. Each citizen gets just one vote. Our system of 
financing campaigns with private money obviously gives people of means 
more influence than average voters, but Congress over the years has 
sought to provide some reasonable limits and preserve the importance of 
individual citizens' votes. One of the most important and longstanding 
limits is that only individuals can contribute to candidates or spend 
money in support of or against candidates. Corporations and unions are 
prohibited from doing so, except through their PACs, which themselves 
raise money only from individuals. The Supreme Court may very well be 
about to change that forever.
  According to a 2005 IRS estimate, the total net worth of U.S. 
corporations was $23.5 trillion, and after-tax profits were nearly $1 
trillion. During the 2008 election cycle, Fortune 100 companies alone 
had profits of $605 billion. That is quite a war chest that may be soon 
unleashed on our political system. Just for comparison, spending by 
candidates, outside groups, and political parties on the last 
Presidential election totaled just over $2 billion. Federal and State 
parties spent about $1.5 billion on all Federal elections in 2008. PACs 
spent about $1.2 billion. That usually sounds like a lot of money, but 
it is nothing compared to what corporations and unions have in their 
treasuries. So we are talking here about a system that could very 
easily be completely transformed by corporate spending in 2010.
  Does the Supreme Court really believe that the first amendment 
requires the American people to accept a system where banks and 
investment firms, having just taken our country into its worst economic 
collapse since the Great Depression, can spend millions upon millions 
of dollars of ads directly advocating the defeat of those candidates 
who didn't vote to bail them out or want to prevent future economic 
disaster by imposing strict new financial services regulations? I say 
that because that is where we are headed. Is the Court really going to 
say that oil companies that oppose action on global warming are 
constitutionally entitled to spend their profits to elect candidates 
who will oppose legislation to address that problem?
  The average winning Senate candidate in 2008 spent $8.5 million. The 
average House winner spent a little under $1.4 million. A single major 
corporation could spend three or four times those amounts without 
causing even a smudge on its balance sheet. This is not about the self-
interest of legislators who will undoubtedly fear the economic might 
that might be brought against them if they vote the wrong way. This is 
about the people they represent, who live in a democracy and who 
deserve a political system where their views and their interests are 
not completely drowned out by corporate spending.
  At the oral arguments last month, one Justice seemed to suggest it is 
perfectly acceptable for a tobacco company to try to defeat a candidate 
who wants to regulate tobacco and to use its shareholders' money to do 
so. This is the system the Supreme Court may bequeath to this country 
if it does not turn back.
  Some will say that corporate interests already have too much power 
and that Members of Congress listen to the wishes of corporations 
instead of their constituents. I will not defend the current system, 
but I will say: Imagine how much worse things would be in a system 
where every decision by a Member of Congress that contradicts the 
wishes of a corporation could unleash a tsunami of negative advertising 
in the next election.
  In light of the immense wealth a corporation can bring to bear on 
such a project, I frankly wonder how our democracy would function under 
such a system. We are talking about a political system where corporate 
wealth rules in a way that we have simply never seen in our history.
  So, once again, I certainly want to thank my friend from Arizona for 
his friendship and his courage. We will continue to fight for a 
campaign finance system that allows the American people's voices to be 
heard.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Bennet). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


          Health Insurance Industry Antitrust Enforcement Act

  Mr. WHITEHOUSE. Mr. President, I come to the floor to speak in strong 
support of the Health Insurance Industry Antitrust Enforcement Act, 
introduced by the senior Senator from Vermont, the chairman of our 
Judiciary Committee, Mr. Patrick Leahy. I believe this bill is an 
important part of health care reform, and I am hopeful it can be 
included in the final reform bill as it makes its way through this 
body.
  Our antitrust laws embody the proud American idea that democracy 
shapes capitalism and not vice versa; that vigorous economic 
competition is not an amoral, Hobbesian contest but disciplined by a 
strong rule of law tradition; and that ours is not a society in which 
might makes right and only the powerful write the rule book.
  The great Supreme Court jurist and antitrust crusader William O. 
Douglas, wrote:


[[Page 25345]]

       Industrial power should be decentralized. It should be 
     scattered into many hands so that the fortunes of the people 
     will not be dependent on the whim or caprice, the political 
     prejudices, the emotional stability of a few self-appointed 
     men. . . . That is the philosophy and the command of the 
     Sherman [Antitrust] Act.

  The passage of the Sherman Antitrust Act and the Clayton Antitrust 
Act and the creation of the Federal Trade Commission and the Antitrust 
Division at the Department of Justice demonstrated a Federal commitment 
to a level economic playing field. Small businessmen and entrepreneurs, 
shouldering the enormous task of starting and sustaining a new 
enterprise, would know that powerful competitors could not collude to 
keep them out of the market. Consumers could rest assured that prices 
were not being fixed artificially high by scheming monopolists. Every 
industry, ever vector of American business, was made subject to these 
rules of the road--except for one: the insurance industry.
  In 1944, insurance companies challenged the Federal Government's very 
ability to enforce antitrust laws against them, and the Supreme Court 
ruled that the insurance business was subject to antitrust laws just 
like everybody else. In response, insurance companies came to Congress, 
where they launched a massive lobbying campaign, pressuring Congress to 
invalidate the Supreme Court's decision--not unlike the current 
lobbying barrage they are aiming at killing health care reform. That 
campaign back in 1944 was successful. In March 1945, the McCarran-
Ferguson Act exempted insurance companies entirely from the reach of 
America's antitrust laws. If that exemption ever made sense, it no 
longer does, especially when it comes to health insurance coverage.
  Today, Americans pay ever-higher premiums for less care because a 
small group of wealthy, powerful companies control the health insurance 
market. Just consider these numbers: A study by the American Medical 
Association shows that 94 percent of metropolitan areas--virtually 
every one--has a health insurance market that is ``highly 
concentrated,'' as measured by Department of Justice standards. This 
means that if the Department of Justice's Antitrust Division had 
enforcement authority over the health insurance industry, it would be 
carefully scrutinizing this market for signs of anticompetitive conduct 
that hurts consumers. But due to the antitrust exemption, the 
Department of Justice cannot do that job. That same study shows that, 
in 39 States 2 health insurers control at least half of the health 
insurance market and in 9 States a single insurer controls at least 70 
percent of the market.
  Back in 1945, the insurance industry argued that it should be 
exempted from the antitrust laws because the market was heavily 
localized and not concentrated. Well, if that were true then, it is not 
true now.
  Overhead for private insurers is an astounding 20 to 27 percent--
charges that consumers pay for in higher premiums. A Commonwealth Fund 
report indicates that private insurer administrative costs increased 
109 percent from 2000 to 2006--109 percent in those 6 years--and the 
McKinsey Global Institute estimates that Americans spend roughly $150 
billion annually on what the report calls ``excess administrative 
overhead'' in the private health insurance market. Mr. President, $150 
billion a year in ``excess administrative overhead.'' Clearly, this is 
not a competitive market. If it were, companies would be driven to cut 
these costs in order to compete effectively in the marketplace.
  Without competition and without economic incentive to avoid massive 
administrative costs, health insurance premiums have increased 120 
percent--more than doubled--in one decade, while insurance industry 
profits increased 428 percent in the same period--428 percent.
  Doctors and other health care providers have been hurt as well. For 
many years, United Health Care, a massive health insurance company, 
owned and operated a computerized pricing system that was used by 
almost every other health insurer. The New York attorney general 
recently found that the system was designed to systematically underpay 
doctors for their services and that this had been going on for years. 
United Health paid $400 million to settle lawsuits by the State, but if 
the Federal Trade Commission or the U.S. Department of Justice had 
tried to bring suit under the Federal antitrust laws, they would have 
been blocked by McCarran-Ferguson.
  Finally, ironically, health insurers threaten and sue doctors all the 
time under these same antitrust laws while protecting their own 
exemption from the laws they seek to impose on the providers and the 
doctors whom they torment.
  One might ask how this exemption has survived so long. A certain 
school of political thought holds that the only proper relationship of 
government to the market is hands off, that any government involvement 
in the marketplace is unnatural and unwelcome. But with respect to 
antitrust enforcement, we crossed that Rubicon long ago, and every 
industry in the country is required to play by rules that support the 
market by increasing competition, again, except insurance. Experience 
in those other areas has shown that the government referee on the field 
of play creates a better environment for competition, and the public 
wins.
  Think of the benefits of a competitive health insurance market. 
Insurers would have to compete on price, lowering premiums for 
individuals and small businesses purchasing insurance, and work hard to 
lower those unnecessary administrative costs. New competitors would be 
able to enter more easily and offer better consumer service, quicker 
claims processing, streamlined enrollment--competition that is 
desperately needed in a market where 36 percent of physician overhead 
is consumed by fighting with the insurance industry over inappropriate 
denial and delay of health insurance claims.
  Senator Leahy's Health Insurance Industry Antitrust Enforcement Act 
would repeal the unique and peculiar exemption for health insurance and 
medical malpractice insurance companies. The bill ensures that these 
companies are no longer permitted to engage in the most egregious forms 
of antitrust violations--price fixing, bid rigging, and market 
allocations--while preserving insurers' ability to share statistical 
information with each other in a procompetitive manner, with 
appropriate approvals.
  Let me conclude with the words of a distinguished Senator, one of the 
greatest advocates for the elderly, ill, and disabled this Chamber has 
seen, Senator Claude Pepper. Senator Pepper, at the time, strongly 
opposed the McCarran-Ferguson antitrust exemption for the insurance 
industry, and he warned of the ``carte blanche authority . . . which 
had been contained in no previous legislation . . . [and] which for the 
first time gives the States carte blanche to legitimize the very vices 
against which the Clayton Act and the Sherman Act were directed.''
  It appears to me the exemption for the insurance industry was a 
mistake then, and it is assuredly unwise now. Let's repeal this unfair 
law and give health insurance consumers the same benefits of free, 
open, and fair competition that all Americans enjoy.
  Let me finally add that the state of the health insurance market 
reinforces the need to which I have spoken, and so many of my 
colleagues have spoken before, for an efficient, nonprofit public 
health insurance option. The health insurance industry has been 
artificially sheltered by government for decades, building huge profit 
margins, massive market share, and colossal overhead and administrative 
costs. Now these same companies argue vehemently against the public 
option on the grounds that it would amount to government interference--
government interference with their government protection from 
competition. That irony just doesn't pass the laugh test.
  According to the AMA study I quoted in the beginning of my remarks, 
Rhode Island is the second most concentrated health insurance market in 
the country. Just two insurers control 95 percent of the market. My 
constituents desperately would like the chance to

[[Page 25346]]

choose a public option and would benefit from a more competitive health 
insurance market, one in which vigorous competition brings down costs 
and improves the quality of care and encourages health insurers to 
treat people decently.
  Mr. President, I have concluded the remarks on the McCarran-Ferguson 
exemption. I wish to turn to another topic, but I see the majority whip 
on the Senate floor, and I would be delighted to yield to him if he 
wishes to take a moment.
  I will continue, then. I thank the distinguished majority whip.


                     Bipartisan Campaign Reform Act

  Mr. President, I wish now to say a few words about the colloquy that 
took place between Senator McCain and Senator Feingold on the Senate 
floor a few moments ago over the need to protect our Nation's political 
system from the influence of corporate money.
  For more than a decade, Senators McCain and Feingold have been 
stalwart defenders of the integrity of our political system, and they 
achieved a hard-fought victory in 2002 with the passage of the 
Bipartisan Campaign Reform Act, which everybody around here knows as 
the McCain-Feingold law. As they said in their remarks, we face a real 
danger that an activist Supreme Court will strike down portions of that 
law, overturn the will of Congress and the American people, and allow 
corporations to spend freely in order to elect and defeat candidates 
and influence public policy to meet their ends. The consequences of 
such a decision by our Supreme Court could be nightmarish.
  Federal laws restricting corporate spending on campaigns have a long 
pedigree. Back in 1907, the Tillman Act restricted corporate spending 
on political campaigns. While various loopholes have come and gone over 
the years, the principle embodied in that law that corporations aren't 
free to spend unlimited dollars to influence political campaigns is a 
cornerstone of our American system of government. That principle now 
appears to be at risk as the Supreme Court may be poised to open the 
floodgates now holding back corporate cash.
  In September, the Supreme Court heard oral argument in Citizens 
United v. The Federal Election Commission. Citizens United is an 
organization that accepts, channels, and funnels corporate funding. It 
sought to broadcast a documentary attacking our former colleague, 
Senator Clinton, now Secretary of State Clinton, at the time a 
candidate for President, on On Demand cable broadcasts. Current law 
prohibits the broadcast of this kind of corporate advocacy on the eve 
of an election. Citizens United filed a lawsuit arguing that the law 
infringed on its first amendment rights.
  Many observers expected the Court to rule narrowly on the case, 
perhaps focusing on whether McCain-Feingold applies to On Demand 
broadcasts. Instead, after hearing oral argument, the Court asked for 
an additional briefing and a new round of oral argument, something the 
Supreme Court does very rarely, to consider whether the first amendment 
bans such restrictions on corporate campaign spending. There is some 
indication that the activist conservative wing of the Court believes it 
does. We may be on the verge of another effort by a Roberts court to 
advance its ideologically charged view of the Constitution. In so 
doing, the Court would overturn its own longstanding precedents, 
opinions such as Austin v. Michigan State Chamber of Commerce where 
Justice Thurgood Marshall warned of ``the corrosive and distorting 
effects of immense aggregations of wealth that are accumulated with the 
help of the corporate form and that have little or no correlation to 
the public support for the corporation's political ideas.''
  Should the Court upturn so much long-settled law, it would upend our 
entire political system and we could see a new era of corporate 
influence over politics not seen in the history of our Republic.
  Imagine for a moment what our political system would look like if the 
Court takes the fateful step of allowing corporations to unrestrictedly 
spend money to influence campaigns. Corporate polluters under 
investigation by the Department of Justice, running unlimited 
advertisements for a more sympathetic Presidential candidate; financial 
services companies spending unlimited money to defeat Members of 
Congress who have the nerve to want to reform the way things are done 
on Wall Street; defense contractors overwhelming candidates who dare 
question a weapons program they build. It would become government of 
the CEOs, by the CEOs, and for the CEOs.
  Nothing in the history of the first amendment requires the protection 
of such activities. To the contrary, Congress long has been understood 
to hold the power to protect the electoral process from the corrupting 
flood of corporate money. This is because, as the Supreme Court long 
has recognized, a corporation holds no inalienable right to participate 
in an election. Unlike the people from whom the sovereign power of the 
State is drawn, a corporation is created by and subject to the 
sovereign power of the State. Indeed, as Chief Justice John Marshall 
explained in 1809, only 18 years after ratification of the first 
amendment, a corporation is ``a mere creature of the law, invisible, 
intangible, and incorporeal and certainly not a citizen.''
  In 1906, a century later, the Supreme Court explained that:

       The corporation is a creature of the state. It is presumed 
     to be incorporated for the benefit of the public. It receives 
     certain special privileges and franchises, and holds them 
     subject to the laws of the state and the limitations of its 
     charter. Its powers are limited by law.

  Corporations are created by government charter. They are legal 
fictions, tools for organizing human behavior. Neither logic nor 
history justifies unleashing them from the bonds of government to 
master and control the very government that created them--new monsters 
on the political landscape, bending public wealth to their peculiar 
private purposes.
  How might they do that? Well, let's look at one recent case involving 
Bank of America.
  All of us remember in September of 2008, Bank of America announced 
that it would buy Merrill Lynch for $50 billion. In August of this 
year, the Securities and Exchange Commission filed a civil suit against 
the Bank of America alleging that it had made a misrepresentation to 
its shareholders that Merrill Lynch would not pay bonuses to its 
executives in 2008 when, in fact, Bank of America had agreed that 
Merrill Lynch could pay up to $5.8 billion in bonuses to its 
executives. That is the background.
  Bank of America and the Securities and Exchange Commission submitted 
a proposed final consent judgment proposing to resolve that case by 
giving $33 million of shareholder money to the Securities and Exchange 
Commission. The U.S. District Court in New York took a look at this 
proposal and threw it out. The judge rightfully rejected it as neither 
fair nor reasonable nor adequate. The Court said it well; I can't 
improve on the Court's decision:

       The parties were proposing that the management of Bank of 
     America--having allegedly hidden from the bank's shareholders 
     that as much as $5.8 billion of their money, shareholder 
     money, would be given as bonuses to the executives of Merrill 
     who had run that company nearly into bankruptcy--would settle 
     the legal consequences of their lying by paying the SEC $33 
     million more of their shareholders' money.

  As the Court noted, this was all done ``at the expense not only of 
the shareholders, but also of the truth.''
  That is a pretty stark example of corporate management trying to use 
shareholder money to serve its own ends, even against shareholder 
interests. Well, guess whose interests corporate managers would pursue 
politically if they could open the spigots of shareholder money in 
elections.
  Longstanding statutes and judicial precedents that limit corporate 
involvement in campaigns rests on the well-established and long-
accepted recognition that corporations and their corrupting self-
interests must be controlled. There is no reason now for a fundamental 
rethinking of such a plain and well-settled principle. The rightwing of 
the Supreme Court will be hard pressed to justify departing from such 
settled understandings of the first

[[Page 25347]]

amendment, from the century-long tradition of controlling corporate 
spending, to invent new constitutional rights for corporations against 
real human beings.
  In closing, I stand with my colleagues, Senator McCain and Senator 
Feingold, in readiness to do what it takes to protect our system of 
campaign finance laws from the danger of corporate corruption. I look 
forward to working with them and my other colleagues to ensure that our 
elections remain enlivened by a robust debate among human participants 
in which CEOs don't have favored princely status because they can 
direct corporate funds to drown out people's voices.
  I thank the Presiding Officer, and I yield the floor.
  The PRESIDING OFFICER. The majority whip is recognized.
  Mr. DURBIN. Mr. President, let me say at the outset the Senator from 
Rhode Island has addressed two issues that are timely and important. I 
certainly concur with him and cosponsor the legislation offered by the 
chairman of the Senate Judiciary Committee, Senator Patrick Leahy, 
which would repeal the McCarran-Ferguson Act as it relates to health 
insurance companies and medical malpractice insurers. The McCarran-
Ferguson Act, since the 1940s, if I am not mistaken, has exempted the 
insurance industry from antitrust regulation, which literally means 
those insurance companies, exempt from the supervision of the Justice 
Department, can engage in conduct absolutely illegal and unacceptable 
by any other corporation in America, save one. Organized baseball is 
given the same basic exemption for reasons that are lost in the pages 
of history. But I will say that under the current McCarran-Ferguson 
law, the health insurance companies have the power to fix prices, to 
allocate markets. In other words, they can make good on their threat 2 
weeks ago that they are going to raise health insurance premiums if we 
pass health care reform in America. There is nothing we can do to stop 
them, short of creating a competitive model where they might have an 
actual competitor in markets such as Rhode Island and Illinois. It is 
known as the public option. Some people brand it as socialism or some 
wild French idea, but what it comes down to is basic competition--
something the health insurance companies loathe. Because of the 
antitrust exemption, McCarran-Ferguson, they have not been held to the 
same standards as any other business in America.
  I believe Senator Leahy is on the right track. It is part of the 
health care reform. I know he is supported by Senator Harry Reid, the 
majority leader, that we should repeal the McCarran-Ferguson antitrust 
legislation as it exists today.
  I concur with Senator Whitehouse as well on the notion that the case 
which is now pending before the U.S. Supreme Court could, in my mind, 
completely destroy our political climate and campaigning in America. If 
we allow corporations to be exempt from limitations in their 
involvement in this political process, it is virtually the end of 
campaigns as we have known them.
  It is time for us to not only endorse the position that has been 
expressed by Senator McCain, Senator Feingold, and Senator Whitehouse, 
but also step back and take an honest look at this system, which I 
think is unsustainable and intolerable.
  I have introduced legislation with Senator Specter calling for public 
financing of campaigns. When will we ever reach the conclusion that 
this system, if it is not corrupt, is corrupting? In order to take the 
big money out of politics, whether from corporations or from 
individuals, we need to move to a model that has been embraced by 
States that are more progressive in their outlooks. The States of Maine 
and Arizona have moved in this direction. We should as well.
  I support public financing, and I hope our Rules Committee can 
consider a hearing on this important measure soon.


                    Unemployment Insurance Benefits

  Yesterday, I came to the Senate floor to talk about a Republican hold 
on our efforts to extend unemployment insurance benefits to millions of 
Americans. These are people who have worked hard their entire adult 
lives and are struggling now to make ends meet. Some of them earned 
six-figure salaries and others more modest incomes, and now they are 
struggling to put food on the table. Some had high-ranking bank jobs, 
others more mundane and routine jobs. But they are all in trouble, and 
they are counting on us to let them have the money they put into a fund 
for their unemployment.
  These people worked for years on factory floors, building expertise 
in machines and equipment, and now have depleted their savings and do 
not know where to turn, and they are frightened.
  Listen to the words a husband and father from Joliet, IL, has written 
to me:

       I am one of the millions who has become dependent on my 
     unemployment benefits to help carry our family from week to 
     week. I've been employed full time since I was legally old 
     enough to work and have always had a job.
       I worked at the same company for 8 years before losing my 
     job due to lack of work. Confident that I'd find a job right 
     away, I didn't sweat it. But I haven't. Eighteen months later 
     and I'm still unemployed and terrified because I'm about to 
     receive my last unemployment check.
       I have two young children, a modest house, one vehicle and 
     a lot of bills. I'm horrified at the thought that I won't be 
     able to pay my bills or put food on our table. We just got 
     hit with unforeseen medical bills that the insurance company 
     has decided not to cover (apparently vaccinating children 
     falls under the ``unimportant'' category), my truck needs 
     tires and brakes, but we can't afford to pay for either, and 
     my refrigerator is threatening to die on me.
       My entire world feels like it's crumbing around me but I 
     was confident that the government, my government, would be 
     there to back us up and I'm appalled that this extension is 
     being held up.
       Without this extension, things are going to get much worse. 
     I'm scared. Please don't let us fall through the cracks.

  I say to the Senator from Rhode Island, I am sure he has received 
similar messages from his State, and I am sure our Republican 
colleagues have received similar messages. They have held us up in our 
attempt to extend unemployment benefits to millions of people just like 
the man who wrote to me from Joliet, IL.
  Here is something I just learned. The Republicans say: We cannot go 
onto unemployment benefits because we want to offer some amendments. 
This is a common plank we hear from them, that they don't have enough 
of a chance to offer amendments. I have not seen the amendments, but 
they were described to me. I think the Senator from Rhode Island may be 
surprised to learn that two of the amendments they want to offer--the 
reason they are holding up unemployment benefits is because they want 
to take another whack at ACORN. Think about that. The Republican Senate 
leadership has reached the point where they would consider amendments 
on the organization of ACORN as an alternative or at least holding up 
even the most basic unemployment benefits for unemployed workers across 
America.
  ACORN is a controversial organization. I know that as well as anyone. 
I said the people who were disclosed on a video several weeks ago 
should be held accountable. I know they have been fired. And if they 
have broken laws, they should be prosecuted, period. I called for an 
investigation of ACORN's involvement with the Federal Government to 
find out if there has been wrongdoing and misuse of Federal funds. We 
have gone even further on the floor of the Senate to actually barring 
ACORN from doing business with the Federal Government. But that is not 
enough on the Republican side of the aisle. In order to feed the mouths 
of the rightwing cable shows, they keep pushing ACORN down our throats 
at the expense of unemployment benefits for millions of Americans.
  When you look at this, this is such a vacuous, frivolous, 
embarrassing outcome that we would say to people like the man who has 
just written to me: Sorry, we cannot give you the peace of mind you get 
with an unemployment check; we have to take another whack at ACORN and 
we have to hold up the bill for weeks until we satisfy a few Senators 
who cannot get enough of this exercise. I don't think it is 
responsible. I sure don't think it is fair. And I can tell you that the 
people who are suffering because they lost their jobs and

[[Page 25348]]

are feeling the pain and frustration are not going to be satisfied to 
know a few Republican Senators want to offer another amendment on 
ACORN.
  Listen to the frustration and pain of a veteran from Cicero, IL. He 
writes:

       My age is 61. I have been unemployed since March 2008. I am 
     actively looking for work. It has been more than 6 months 
     since I've even had an interview.
       When I've had interviews, I feel that once the interviewer 
     sees my gray hair, I am eliminated from competition, saying 
     I'm over qualified.
       I'm realistic, and willing to take a cut in pay to [get a 
     job].
       What I'm writing about is the extension of unemployment 
     benefits. I've received notices from the State of Illinois my 
     extended benefits and emergency benefits from the State of 
     Illinois have expired.
       I understand that the House [of Representatives in 
     Washington] has voted to extend benefits by an overwhelming 
     majority. But the extension is being held up in the Senate.
       Sir, I am facing losing my home and all my possessions that 
     I can't pack in my car.
       I must urge you once again to look positively and in a 
     timely manner to a vote in the Senate. Now, I must also ask 
     you to consider extending relief to those who no longer have 
     benefits.
       I have now applied for State welfare benefits. I am now 
     waiting for my scheduled interview to have my application 
     reviewed.

  All of these people have been helped by unemployment insurance. All 
of them are at risk of losing that lifeline.
  Since I spoke on the floor yesterday about the Republican 
obstructionism stopping us from bringing up unemployment benefits, 
7,000 people have lost their unemployment insurance, 7,000 more will 
lose it today and 7,000 more tomorrow. Why? So that several Senators 
can have another amendment attacking ACORN. Does that make any sense? 
Is that fair or just? These Senators ought to go home to their States 
and tell the people who are out of work and not receiving unemployment: 
Sorry, we can't help you yet because we have a few more political items 
to work on, an agenda.
  Republicans in this body, unfortunately--some of them--are too 
concerned about the political agenda and not concerned enough about the 
human agenda of hard-working Americans out of work. Mr. President, 1.3 
million Americans will lose benefits by the end of the year if we do 
not pass the Democratic extension of unemployment benefits; 1.3 million 
Americans will suffer needless poverty and deprivation for their 
families because of this obstructionism. These are working-class 
families. These are families we value in this country. These are 
families who deserve a fighting chance.
  I say to my Republican colleagues who have stopped the Democrats from 
extending unemployment insurance benefits: What are you waiting for? 
Don't you receive the same e-mails, mail, and phone calls we receive? 
You have unemployed people in your State. Clearly, they need help.
  Mr. President, 50,000 families in Illinois will lose their 
unemployment insurance, while they look for work, by the end of the 
year if the Senate does not act. Some seem to be worried about how to 
pay for this extension, but we have paid into this for years. Workers 
put in a little bit of money out of their paychecks, and employers as 
well. It goes right into a fund to cover unemployment. So it is not as 
if the money is not there; it is just the political will is lacking. 
Unfortunately, there are other things that are more important to some 
people on the other side of the aisle.
  I say to my colleagues in the Senate, it is time for us--in fact, it 
is over time for us--to pass extension of unemployment benefits.


                        Hate Crimes Legislation

  Mr. President, the Defense authorization bill includes hate crimes 
language which for several years has been passed by both the House and 
the Senate only to see it blocked by filibuster threats or by the 
threat of a veto. What a difference a year has made. When Congress took 
up the hate crimes bill last Congress, President George W. Bush called 
it ``unnecessary and constitutionally questionable.'' He said he would 
veto it.
  The American people said last November that they wanted a new 
President and a change. They wanted our country to move in a different 
direction. President Obama is doing that. In this case, he is 
supporting the hate crimes legislation.
  This bill has another important champion who sadly is no longer with 
us. Senator Ted Kennedy of Massachusetts was our leader on this issue 
for over a decade. I only wish he were here to vote and join us on the 
passage of this important legislation. Nobody spoke to this issue with 
more authority and clarity than Senator Ted Kennedy. He was the heart 
and soul of the Senate, and passing this bill will honor the great work 
he gave in his public career to the cause of civil rights.
  I generally believe Congress should be careful in federalizing crime, 
but in the case of hate crimes, there is a demonstrated problem and a 
carefully crafted solution.
  There are two parts to this problem. First, the existing Federal hate 
crimes law, which was passed over 40 years ago in 1968 after the 
assassination of Dr. Martin Luther King Jr., only carries six narrow 
categories of conduct. The hate crime has to take place, for example, 
while using a public accommodation. The hate crimes bill now being 
considered would expand coverage so that hate crimes could be 
prosecuted wherever they take place. Federal prosecutors would no 
longer be limited to these six narrow categories.
  Second, the bill would expand the categories of people covered under 
the Federal hate crimes law. The current law provides no coverage for 
hate crimes based on the victim's sexual orientation, gender, gender 
identity, or disability. Unfortunately, statistics tell us that hate 
crimes based on sexual orientation are the third most common after 
those based on race and religion. About 15 percent--one out of six or 
seven--of all hate crimes is based on sexual orientation. We cannot 
ignore this reality.
  Let me address one or two arguments made against this bill.
  Many have written to me and said they believe this bill would be an 
infringement on religious speech. Their concern is that a minister in a 
religious setting could be prosecuted if he sermonizes against 
homosexuality and then a member of his congregation assaults someone on 
the basis of their sexual orientation. I certainly understand this, but 
their concern is misplaced.
  The chair of the Senate Judiciary Committee, Senator Leahy, held a 
hearing a few months ago with Attorney General Eric Holder. I attended 
the hearing, and I asked the Attorney General of the United States 
pointblank whether a religious leader could be prosecuted under the 
facts I just described. This is what the Attorney General said in 
response to the hypothetical question I raised:

       This bill seeks to protect people from conduct that is 
     motivated by bias. It has nothing to do with regard to 
     speech. The minister who says negative things about 
     homosexuality, about gay people, this is a person I would not 
     agree with, but is not somebody who would be under the ambit 
     of this statute.

  This clear representation from the Nation's top law enforcement 
officer puts to rest, in my mind and the mind of any reasonable person 
listening to it, any misunderstanding people might have about how this 
law would work.
  It is also important to note that the hate crimes bill requires 
bodily injury before prosecution. Words are not enough. It does not 
apply to speech or harassment. It does not apply to those who would 
carry signs with messages which exhibit their religious belief. 
Attorney General Holder assured the Senate that unless there is bodily 
injury involved, no hate crimes prosecution could be brought. I don't 
know how he could have been clearer and more definitive. People who 
listen to his statement in good faith will understand it.
  I also note that 24 States, nearly half the States in our Nation, 
have hate crime laws on the books that include sexual orientation, and 
religious leaders are not being prosecuted in those States.
  That is not the purpose of the hate crimes law. Prosecutors aren't 
looking to put ministers in jail for their religious beliefs. To the 
contrary, the hate crimes bill will actually help religious 
communities. Understand, 20 percent of all hate crimes that are 
committed in

[[Page 25349]]

the United States are committed on the basis of religion. This bill 
would eliminate the narrow requirements that currently prevent Federal 
prosecutors from bringing certain hate crimes cases motivated by 
religious bias.
  Another criticism of the legislation is there is no need to pass a 
Federal hate crimes law because some States are already doing it on 
their own. This argument is similar to one we faced before. Almost a 
century ago, when Congress debated an antilynching law between 1881 and 
1964, almost 5,000 people were lynched in the United States. The 
victims were mostly--but not exclusively--African American. Yet 
Congress resisted addressing this problem for generations. Criminal law 
is primarily a State and local function. I understand that. An 
estimated 95 percent of prosecutions for crimes occur at that level. 
But in some areas of criminal law, the Federal Government can and 
should step in to help.
  We have 4,000 Federal criminal laws, 600 of which have been passed in 
the last 10 years. Hate crimes are a sad and tragic reality in America. 
The killing this past summer of an African-American security guard at 
the Holocaust Museum here in Washington, DC, was a reminder that hate-
motivated violence still plagues our Nation.
  Earlier this year, in my home State of Illinois, two White men in the 
town of Joliet used a garbage can to beat a 43-year-old Black man 
outside a gas station, while yelling racial epithets and stating: 
``This is for Obama.'' The victim sustained serious injuries, 
lacerations, and bruises to his head.
  Just 2 weeks ago, in Springfield, in my hometown, three University of 
Illinois students were arrested for viciously beating and punching two 
men while yelling antigay slurs at them.
  These are incidents in my home State, a State I am proud to 
represent, but I am not proud of this criminal conduct, and I don't 
think America should be proud of it.
  According to FBI data, based on voluntary reporting, there are 8,000 
hate crimes annually in America. Some experts think the number is 
closer to 50,000. The hate crimes bill would not eliminate hate crimes, 
but it will help ensure these crimes do not go unpunished.
  In closing, I wish to quote the words of Senator Kennedy when he 
introduced the hate crimes bill in April. This is what he said:

       It has been over 10 years since Matthew Shepard was left to 
     die on a fence in Wyoming because of who he was. It has also 
     been 10 years since this bill was initially considered by 
     Congress. In those 10 years, we have gained the political and 
     public support that is needed to make this bill into law. 
     Today, we have a President who is prepared to sign hate 
     crimes legislation into law, and a Justice Department that is 
     willing to enforce it. We must not delay the passage of this 
     bill. Now is the time to stand up against hate-motivated 
     violence and recognize the shameful damage it has done to our 
     Nation.

  We will honor the memory and legacy of Senator Edward Kennedy by 
passing this Defense authorization conference report, which includes 
the hate crimes law language. We need to send this to President Obama, 
who has promised he will sign it into law. I urge my colleagues to join 
me in support of this important legislation.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________