[Congressional Record (Bound Edition), Volume 156 (2010), Part 12]
[Senate]
[Pages 16657-16661]
[From the U.S. Government Publishing Office, www.gpo.gov]




  CREATING AMERICAN JOBS AND ENDING OFFSHORING ACT--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to S. 3816, which the 
clerk will report.
  The assistant legislative clerk read as follows:

       Motion to proceed to consider Calendar No. 578, S. 3816, a 
     bill to amend the Internal Revenue Code of 1986 to create 
     American jobs and to prevent the offshoring of such jobs 
     overseas.

  The PRESIDING OFFICER. Under the previous order, there will be 20 
minutes of debate, equally divided, between the two leaders or their 
designees prior to a vote on the motion to invoke cloture.
  The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, in a few minutes, the Senate will be 
voting on the motion to invoke cloture on the motion to proceed to a 
bill that has been mislabeled the ``Creating American Jobs and Ending 
Offshoring Act.''
  The part of the bill that is attracting the most attention is the 
repeal of deferral for the income of foreign subsidiaries for importing 
into the United States. Deferral is the policy that allows U.S. 
corporations to defer paying U.S. tax on the earnings of its foreign 
subsidiaries until those earnings are sent back to the United States 
when, at that point, they are going to be taxed just like every other 
corporate income.
  In general, deferral is not allowed if the income is earned offshore 
and the reason for it being offshore is solely to avoid tax. What is 
bad about the bill is it would deny deferral for income that a foreign 
subsidiary legitimately earns from the sale of goods into the U.S. 
market.
  The problem is that there has been no finding that such income is 
earned outside the United States by a motivation to simply avoid U.S. 
taxes. So this bill is completely contrary to a whole half century of 
bipartisan thinking as to when it is appropriate to deny deferral and 
when it is not. That bipartisanship goes back to President John F. 
Kennedy's administration, when there was a bipartisan agreement within 
the Congress and between the President and the Congress that this is 
the tax policy we should have to make American manufacturing 
competitive with foreign competition.
  To the contrary, there are obviously many reasons for a foreign 
subsidiary of a U.S. corporation selling goods into the United States. 
There could be a need to be near to a certain overseas market or the 
good in question may not be found in appreciable quantities within the 
United States. Yesterday, I referred to chromium not being available in 
the United States, as one example.
  There could be many reasons having nothing to do with tax policy. But 
the sponsors of this bill don't seem to understand that fact, that 
American manufacturing ought to be competitive with overseas 
competition or, obviously, we are going to lose business and lose jobs 
in the process or perhaps the bill's sponsors would admit that curbing 
tax avoidance is not the point. Perhaps they would instead claim it is 
all about an effort to create American jobs.
  That would be a very good goal, but it is unlikely to create jobs. I 
fear it would have the opposite effect. The bill may lead to fewer 
headquarters jobs in the United States, if a corporation, for 
uncompetitive reasons, decided to move totally offshore and take those 
headquarters jobs with them. The bill could lead to a loss of American 
jobs assembling finished products from parts assembled outside the 
United States.
  In the words of the late Senator Moynihan, who was, for a long time, 
chairman of the Senate Finance Committee, in speaking in opposition to 
this very same proposal 14 years ago:

       Investment abroad that is not tax driven is good for the 
     United States.

  In other words, what he is saying there is, if there is investment 
abroad but it is not solely to avoid U.S. taxation but has economic 
substance behind it, that is good for the United States.
  He did not say this. Contrariwise, if there is money offshore simply 
to avoid U.S. taxation, then obviously that is wrong. As an example, 
Senator Baucus and I have been involved in the Stanley Corporation 
doing that 6, 7 years ago, and we plugged those loopholes.
  I agree with Senator Baucus when he was recently quoted as to this 
bill saying:

       I think it puts the United States at a competitive 
     disadvantage. That's why I'm concerned.

  If there is any doubt about whether I agree with that statement of 
Senator Baucus, the Democratic leader of our committee, I agree with 
Senator Baucus.
  In addition, there are procedural defects concerning this bill. I 
wish to start this part of my remarks by relying on a statement Senator 
Reid said to me privately--he might deny he made this statement, but 
soon after the 2006 election, when the Senate became a Democratic 
majority rather than a Republican majority, he said something like this 
to me: You and Senator Baucus work so well together. I want you to know 
I am going to let the committees continue to function as they always 
have, particularly in your case because you have such a close working 
relationship.
  With that as background, things have changed very recently so that 
every bill seems to be written in Senator Reid's office, not in 
committee.
  This bill before us has not been vetted by the Finance Committee. 
Does anyone believe that if my friend the chairman were to put this 
bill before the Finance Committee, it would be approved in the form it 
is right now? If the idea in this bill had the kinds of merits claimed 
by their proponents, then they should welcome the Finance Committee 
reviewing it. Let members ask questions as they review the language. 
Test the strength of ideas through the committee process.
  The Democratic leadership has short-circuited the opportunity to 
methodically test the bill as good tax policy. Unfortunately, this 
process defect has been more the rule than the exception. Since the 
stimulus bill in January of 2009, the Finance Committee has only marked 
up one tax policy bill, and that was the health care reform bill.
  My sense is the Democratic leadership simply does not want this bill 
to undergo scrutiny of a regular-order process--in other words, the way 
the Senate normally does business. This bill is presented as a ``take 
it or leave it'' proposition. Republicans are not supporting cloture 
because they are not being offered the opportunity to amend this bill 
with amendments that go to the supposed purposes of the bill. No 
amendments are allowed on any tax incentives for job creation. No 
amendments are allowed on measures to prevent offshoring of jobs. In 
other words, the Senate being a deliberative body of a bicameral 
Congress--and, obviously, the House is not a deliberative body--the 
purpose of this body is being neutered by the procedure this bill is 
going through. For instance, I have amendments dealing directly with 
the offshoring of jobs. They are bipartisan amendments. But if I vote 
for cloture, I have no assurance from the Democratic leadership that 
these amendments will be in order. I will describe these amendments.
  The first amendment mirrors a bill the junior Senator from Vermont 
and I have coauthored. It is the Employ America Act. It would prevent 
any companies engaged in the mass layoff of American labor from 
importing cheaper labor from abroad through temporary guest worker 
programs if they lay somebody off.
  The second amendment I filed today mirrors a bill the senior Senator 
from Illinois, a Democrat, and I have worked on for several years. It 
is the H-1B and L-1 Visa Reform Act of 2009. It would improve two key 
visa provisions while rooting out abuse while making sure Americans 
have the first chance of obtaining high-skilled jobs in this country.

[[Page 16658]]

  Many Americans are unemployed. Yet we still allow companies to import 
thousands of foreign workers. These businesses should be asked to look 
first at Americans to fill those jobs, and they should be held 
accountable for displacing Americans to hire cheaper foreign labor.
  These two amendments go directly to the concerns about job creation 
and the prevention of offshoring of U.S. jobs. Both amendments are 
bipartisan. Yet if cloture is invoked, these amendments would fall on 
the Senate cutting room floor.
  Furthermore, I have no confidence, even if the Democratic leadership 
were to follow regular order for floor purposes, that we could expect 
anything like a conference committee to work out the issues between the 
House and the Senate.
  In sum, the bill's substance would more likely lead to an increase in 
offshoring of American jobs and would make American companies less 
globally competitive. The bill's procedure is very irregular and not in 
the thoughtful traditions that so dignify the Senate.
  For purposes of the contents of the amendments, as well as this 
procedure, I ask that we vote against this bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Michigan is recognized.
  Ms. STABENOW. Mr. President, I rise today asking that we vote to 
proceed to this measure so that we can have a full discussion and 
debate and work on the issues that are so important to middle-class 
families related to incentives for jobs being shipped overseas versus 
incentives to have jobs in America.
  I agree with my distinguished colleague from Iowa--we have worked 
together on many issues--that there is a larger set of issues. It is 
very important that in the next Congress we focus on comprehensive tax 
reform. Permanently extending the research and development tax credit, 
as the President has proposed, which I strongly support, is very 
important to us for long-term innovation and the ability to invest in 
America. I believe it is important to have fair trade agreements, 
agreements that are enforced. When we look at a country such as South 
Korea, where our manufacturers have been blocked from selling into 
South Korea, where automakers have been at a disadvantage, we need to 
make sure those issues are fixed before that trade agreement or any 
trade agreement moves forward. There are many issues on which we need 
to focus under the whole commitment that we want to export products, 
not jobs.
  I will talk about specifically what is in this bill, this piece of 
it, because this goes to the question of whether, in Michigan or in any 
State, if there is a decision made to close operations and take it to 
another country, lay off people in Michigan and move those jobs 
overseas, whether the workers, their families, Americans should 
subsidize that through a tax system that provides that you can take a 
deduction, a loss, or a credit for amounts paid in connection with 
reducing or ending an operation in America if you are starting the same 
kind of operation overseas--in other words, shipping your jobs 
overseas. Right now, you shut down, you get business tax deductions for 
what it costs you to shut down the operation and start it up somewhere 
else. To add insult to injury, we have workers training folks to take 
their place. We heard over and over what a challenging, humiliating, 
angering situation that is for too many of our workers.
  The question is, on this policy, knowing there is much more that 
needs to be done, which I support--and I do support looking at the 
entire tax system and how we are competing in a global economy and 
making sure our businesses in America have every advantage, every 
opportunity to compete successfully. But the question is, the single 
question on this vote that is coming up very shortly is whether we are 
going to allow companies that shut down operations and start similar 
operations abroad to write off their American taxes, whether the same 
people who are losing their jobs are going to have to help pay for the 
jobs going overseas. That is No. 1. We say no. We say that as a basic 
premise, that is wrong.
  No. 2, the question is whether we should end Federal tax subsidies 
that reward firms that move their production overseas under something 
called deferral. This bill says no.
  No. 3, the question is whether we are going to provide incentives--
among many incentives we have and need to have--whether we will say: If 
in the next 3 years you as a company choose to bring back jobs from 
overseas and hire Americans, we want to provide an incentive by giving 
a 24-month, a 2-year payroll tax holiday for those workers--if you are 
bringing jobs back from overseas.
  That is simply what this is. It is not everything, but it is a very 
important piece of the puzzle. That is what this is all about.
  For me, this is a fight about whether we are going to make products 
in America. If we make a commitment, as we have begun to do through the 
Recovery Act, through the advanced manufacturing tax credit, through 
the focus on manufacturing that has begun to get business moving again, 
we are going to have the ability to make it in America. And when we 
make it in America, we are going to make a lot of it in Michigan. The 
reason I am very committed to strengthening our manufacturing base is 
because I know that is going to strengthen Michigan because we have the 
engineers, we have the skilled workforce, we have the know-how, we have 
the innovation and the ingenuity. If we make it in America, we are 
going to be making a lot of that in Michigan.
  We are committed more broadly to doing that. We cannot have a middle 
class if we do not make products. If we do not make products and grow 
products and add value to it as a country, we will not have a middle 
class. The reason we are losing our middle class is because there has 
been in the last decade much more interest in how cheaply we can buy 
something rather than where it is made. Every other country has 
understood that it matters where it is made. China thinks it matters 
where it is made. India thinks it matters where it is made. Germany, 
Brazil, Japan--go around the globe. They look at us. They look at what 
created the middle class of this country. They want that, so they are 
focusing on manufacturing. They are putting in place their own 
barriers--and China, of course, wins the prize on this--to keep our 
companies out, to say, you have to make it in China, to say it has to 
be a Chinese patent, you have to turn over your technology, and so on.
  This bill is part of our effort to say that we are committed to fight 
for America, American businesses, American workers. This is not about 
punishing folks; this is about fighting for America. It is about 
fighting for a way of life. It is about fighting for the middle class 
of this country. We want to make it in America, and this bill sends a 
very simple message: Stop shipping our jobs overseas. Stop having 
loopholes in the law, incentives in the law that ship our jobs 
overseas.
  We have lost over 4.7 million manufacturing jobs in the last decade. 
We can debate the 8 years of the former Presidency and the incentives 
that caused job loss and too many of those in my State of Michigan. We 
know that if we focus on making products in America, we will bring 
those jobs back; that if we close loopholes, if we create incentives, 
we will bring jobs back.
  One example, and then I will close--I see my colleague from Ohio is 
here--when we focus on the right incentives, we do bring jobs back. In 
the last Energy bill, section 136--which I was pleased to author on 
tooling older plants to help businesses get retooling loans--caused 
Ford Motor Company to bring jobs back from Mexico to Wayne, MI. The 
jobs came back because of the right incentives. This bill is about the 
right kinds of incentives and closing the wrong kinds of incentives.
  I ask our colleagues to give us the opportunity to get to this bill, 
to work together to stop the bleeding, stop the shipping of jobs 
overseas, and give us

[[Page 16659]]

the opportunity to make it in America again.
  Mr. BROWN of Ohio. Mr. President, will the Senator from Michigan 
yield?
  Ms. STABENOW. Yes, I will be happy to.
  Mr. BROWN of Ohio. Mr. President, I thank the Senator from Michigan 
for her work on this legislation--she was here late in the evening 
yesterday--and the effort she has put forward.
  It was 10 years ago this month that the Senate passed permanent 
normal trade relations with China. Initially, that was called most-
favored-nation status, as Senator Stabenow remembers. They dressed it 
up, cleaned it up, put lipstick on the pig, and decided they should 
call it something else. We know what it has done to our country. We had 
a trade deficit with China in the fairly low double digits back 10 
years ago. Today, our bilateral trade deficit with China is $260 
billion. I believe last year it was $240 billion.
  The first President Bush said that $1 billion in trade deficit 
translates into 13,000 jobs. So if we have a trade surplus of $1 
billion, it means we are selling a lot more than buying and have gained 
13,000 jobs. If we have a trade deficit of $1 billion, we have a 13,000 
job loss. Well, we have a trade deficit with China alone of $260 
billion, so we know what that means.
  Look at what this PNTR with China has done. Look at what our tax laws 
and trade laws have done, and this legislation will begin to fix the 
tax laws. Look at what tax laws and trade laws have done to the middle 
class, to our manufacturing base in Toledo, OH, and Monroe, MI, and 
points north and south of there. It has all been based on this sort of 
cynical business plan. Not since colonial times have we seen the world 
where a company--an industry--will close their manufacturing in our 
country, they will move their production line and build factories in 
another country and then sell back their products to the United States. 
Never before have large numbers of businesses and industries done that, 
to my knowledge. Now we are seeing what damage it has caused to the 
middle class. We see the manufacturing job loss. We went from 1 million 
manufacturing jobs 10 years ago to, during the Bush years, that number 
shrinking to 600,000 manufacturing jobs in this country.
  We are seeing progress. This legislation is progress. Clearly, I am 
hopeful our Republican colleagues won't object, as they typically have. 
They know people who have lost jobs, I assume, and they understand 
that. But we have also seen the President begin to enforce trade laws.
  Mr. LEAHY. Mr. President, I strongly support the Creating American 
Jobs and Ending Offshoring Act. These clearly justified reforms will 
close wasteful tax loopholes for firms that move jobs overseas and 
provide real incentives for firms to bring jobs back to the United 
States. I am proud to join Senators Dick Durbin, Harry Reid, Byron 
Dorgan, Barbara Boxer, Chuck Schumer, Sherrod Brown, and Sheldon 
Whitehouse in cosponsoring this bill.
  For the past two decades our country has witnessed a disturbing trend 
towards outsourcing American jobs abroad. What began as a way for 
domestic manufacturers to cut labor costs has blown into a full-fledged 
sprint by some U.S. manufacturing and service companies to move as much 
production offshore as possible.
  The devastating effects of global offshoring have hit large, 
manufacturing States like Ohio, Michigan, Indiana, and California with 
particular hurt, but smaller States like Vermont are not immune to the 
global realities of corporate outsourcing and consolidation. 
Unfortunately, there is quite a list of companies in recent years that 
have either left our State or gone out of business entirely because 
they moved jobs overseas or were squeezed out of the market by 
competitors using cheap, foreign labor.
  That is why the Senate must move forward with considering the 
Creating American Jobs and Ending Offshoring Act.
  First, the bill will eliminate the perverse tax subsidies that U.S. 
taxpayers provide to firms that move facilities offshore. Specifically, 
it prohibits a firm from taking any deduction, loss, or credit for 
amounts paid in connection with reducing or ending the operation of a 
trade or business in the United States and starting or expanding a 
similar trade or business overseas.
  Second, the bill will close the tax loophole that rewards U.S. firms 
that move their production overseas and then turn around and import 
those now foreign-made products back to the United States for sale. Not 
only will this help keep good manufacturing jobs here at home, it will 
save American taxpayers more than $15 billion in revenue over the next 
decade.
  Finally, to encourage businesses to create jobs in the United States, 
the bill will provide businesses with payroll tax relief for each new 
job that they bring back onshore.
  During these trying economic times, too many Vermonters are 
struggling to find goods jobs and pay their bills. The economic 
collapse came swiftly, and we have all seen that there are no quick 
fixes to turn around our economic troubles. We staved off greater 
economic disaster with an essential economic rescue plan, and we have 
tried to jump-start the economy with a bold economic recovery plan. But 
employment opportunities here at home are hampered when employers push 
more and more jobs overseas.
  Last year, Congress helped lay the groundwork for a renewed and 
vibrant economy by enacting tax relief for working families and 
businesses and making needed investments in broadband deployment, job 
training, electrical smart grids, water and transportation 
infrastructure, better schools, housing, first responders, and new 
energy sources. We need to ensure that these important investments by 
U.S. taxpayers benefit businesses and workers here at home.
  Mr. LEVIN. Mr. President, the American people understand a simple 
truth: Our Tax Code should not encourage U.S. companies to send their 
jobs overseas. That is why we have proposed the Creating American Jobs 
and Ending Offshoring Act. This legislation would take important steps 
to prevent American workers from losing their jobs because American 
companies get tax breaks when they move jobs overseas.
  I thank Senators Reid, Durbin, Schumer, and Dorgan for introducing 
this legislation. It would eliminate tax deductions that corporations 
claim for expenses related to sending U.S. jobs overseas. It would end 
the tax breaks companies receive on income earned by foreign 
subsidiaries established to do work they once did with American 
workers. And in a bid to turn around the twisted incentives in our Tax 
Code, incentives that now encourage companies to send jobs overseas, it 
would provide incentives for companies to bring those jobs back home.
  I understand some of my colleagues oppose this legislation because 
they fear it might violate our treaty obligations. It is difficult to 
have sympathy for this position, given the thousands of U.S. jobs lost 
because our trading partners fail to live up to their treaty 
obligations. I am in favor of trade, but I strongly oppose unilateral 
disarmament when it comes to trade. It is our obligation to defend the 
interests of U.S. workers. Ending the tax incentives that cost 
thousands of those workers their jobs is one way we can fulfill that 
obligation.
  U.S. companies that do the right thing by their U.S. workers should 
not be at a disadvantage over those companies that ship jobs overseas. 
U.S. tax law should not encourage companies to fire hard-working 
Americans. We should pass this legislation and end the distorted 
incentives that are costing Americans their jobs.
  Mr. GRASSLEY. Mr. President, very soon, the Senate will be asked to 
vote on the motion to invoke cloture on the majority leader's motion to 
proceed to a bill that is mislabeled the ``Creating American Jobs and 
Ending Offshoring Act.''
  The process for this bill illustrates how the Democratic leadership 
has dumbed down any efforts to seriously legislate any tax policy 
issues. To show how far, as a body, we have run off the rails in 
legislating, let's compare the legislative track record of this bill

[[Page 16660]]

with the last major piece of tax legislation designed to deal with 
domestic job creation.
  I am referring to the bill that responded to a World Trade 
Organization ruling against a domestic manufacturing benefit known, at 
that time, as the foreign sales corporation or FSC program. Dangerous 
tariffs were pending with respect to many American products. How was 
that legislation handled?
  First of all, the Finance Committee members and staff engaged in a 
lot of due diligence in crafting the replacement regime, the domestic 
manufacturing deduction. On a bipartisan basis, Finance Committee 
staff, principally the tax and trade staffs, met with the interested 
parties, including officials from the litigating group, the European 
Union.
  Finance Committee staff, Republican and Democrat, negotiated a bill 
that took the revenue generated from repealing the FSC benefit, added 
revenue from shutting down tax shelters like the so-called SILO/LILO 
schemes, and channeled that revenue back into a new broader based 
domestic manufacturing incentive. That incentive is a 9 percent 
deduction for domestic manufacturing activity. It is a substantial tax 
incentive. The Joint Committee on Taxation estimates it is worth $10 
billion annually in terms of reduced taxes to domestic manufacturers, 
large and small. The chairman's mark was a joint mark between my 
friend, then-ranking Democratic member, Max Baucus, and me.
  Ranking Member Baucus and I came up with a bill title. It was the 
Jump Start Our Business Strength or JOBS bill. The bill went through 
the usual transparent Finance Committee markup process. Over several 
days, Finance Committee members reviewed the language, asked questions, 
and prepared and filed amendments. When I gaveled the committee to 
order, several amendments were debated. Some were defeated. Some were 
modified and accepted. Others were discussed and withdrawn. Every 
Finance Committee member played a role in shaping the bill the 
committee approved. And it should be noted the only dissents were two 
members on the then majority side.
  When the bipartisan JOBS bill was scheduled for floor debate, then 
majority leader Bill Frist brought up the Finance Committee bill. Both 
my friend, Senator Baucus, and I were consulted on the floor bill's 
contents. At that time the Democratic leadership filibustered efforts 
to effectively process the bill. Keep in mind there was no dissent in 
the Finance Committee on the substance of the bill on the Democratic 
side. As I said before, two members of my leadership, on very 
principled grounds, voted against this popular bill. Despite opposing 
the bill in committee, those two members supported the majority 
leader's efforts to bring the time-sensitive legislation to the floor 
and process it in a timely fashion.
  It took three cloture votes to process the JOBS bill. That is right. 
Three cloture votes. The basis for the multiple filibusters of the JOBS 
bill was not opposition to material in the bill. The Democratic 
leadership filibustered over items not in the bill that they wanted to 
offer as amendments. The Republican leadership did something we seldom, 
if ever, see from the Democratic leadership. Majority Leader Frist 
yielded by allowing votes on those issues, which were not in the bill, 
but controversial with many in the Republican Conference. Many votes 
were held on the JOBS bill. Some were designed by those close to the 
Democratic campaign operation solely to score political points. The 
Republican Conference, as the majority party at the time, recognized 
multiple votes were the price to pay to push part of the majority's 
agenda.
  Even if that agenda consisted of doing the people's business by 
processing a bill with more support on the other side.
  The conference committee that considered the JOBS bill was fully 
open. There was a chairman's mark and several days of amendments 
between the House and Senate. In the end, a conference report was 
produced that garnered a majority of Senate conferee signatures from 
each side. The conference report passed with overwhelming bipartisan 
support.
  Compare that JOBS bill process with the one for this bill which, as I 
said at the start of my remarks, is a jobs bill in name only. In the 
Senate, I have found over the years, that legislative substance and 
legislative process are symbiotic.
  That is, the quality of the process often affects the quality of the 
substance and vice versa.
  Here we are debating a bill whose proponents claim will make a 
material difference with job creation incentives. We are also told that 
this bill will materially curtail the offshoring of U.S. jobs. If it 
were only that simple, I am sure the bill would pass with the 
overwhelming bipartisan margin the JOBS bill did some 6 years ago.
  I have previously discussed the defects in the bill before the 
Senate. I will not do it again here. But I will say this: Does anybody 
on the other side really believe if my friend, the chairman, were to 
put this bill before the Finance Committee that it would be approved in 
the form that is before the body today? I can tell you this Senator has 
several amendments that he thinks would improve this bill dramatically.
  I would expect those amendments might pass with bipartisan support. 
This bill, like so many others, was crafted in the majority leader's 
office and is largely the singular work of two senior members of his 
leadership. That is not to say anything negative about those members or 
their interest or work in the area of tax legislation. My point is 
that, if the ideas in this bill had the kind of merit claimed by their 
proponents, why avoid the Finance Committee? Why not let the public see 
it in committee. Let members ask questions as they review the language. 
Test the strength of the ideas through the amendment process. If the 
proponents answer by blaming Republican Leader McConnell, I would point 
out that Senator McConnell isn't on the Finance Committee. If the 
proponents answer by blaming partisanship, I would ask them to take a 
look at the Finance Committee ratio.
  It has been the most favorable to the majority since the early part 
of the 1990s. By intentionally skipping the committee of jurisdiction, 
the Democratic leadership has deliberately short-circuited the 
opportunity to methodically test the bill as tax policy. Unfortunately, 
this process defect has been more the rule than the exception. Since 
the stimulus bill in January of 2009, the Finance Committee has only 
marked up one tax policy bill, the health care reform bill. As a former 
chairman, I know the current chairman would not want to proceed this 
way. Nope. My sense is the Democratic leadership simply doesn't want 
this bill to undergo the extra scrutiny of a regular order process.
  Unlike the 2004 JOBS bill, this bill is being presented as a take-it-
or-leave-it proposition. Republicans are not supporting cloture because 
they are not being offered the opportunity to amend this bill with 
amendments that go to the supposed purposes of the bill. No amendments 
allowed on other tax incentives for job creation. No amendments allowed 
on measures to prevent offshoring of jobs. I have amendments dealing 
directly with the offshoring of jobs question. They are bipartisan 
amendments. If I vote for cloture, I have no assurances from the 
Democratic leadership that these amendments will be in order. Any look 
back on the way in which tax bills have been processed this year tells 
me I have good reasons for doubting that a full debate would occur. I 
would like to briefly describe the two amendments I filed earlier.
  The first amendment mirrors a bill that the junior Senator from 
Vermont and I have coauthored. Known as the Employ America Act, this 
amendment would prevent any company engaged in a mass layoff of 
American workers from importing cheaper labor from abroad through 
temporary guest worker programs. Companies that are truly facing labor 
shortages would not be impacted by this legislation and could continue 
to obtain employer-sponsored visas. Only companies that are laying

[[Page 16661]]

off a large number of Americans would be barred from importing foreign 
workers through guest worker programs.
  Since the recession started in December of 2007, nearly 8 million 
Americans have lost their jobs and the unemployment rate has nearly 
doubled. In total, 15 million Americans are officially unemployed, 
another 8.8 million Americans are working part-time only because they 
cannot find a full-time job, and more than 1 million workers have given 
up looking for work altogether.
  At the same time, some of the very companies that have hired tens of 
thousands of guest workers from overseas have announced large scale 
layoffs of American workers. The high-tech industry, a major employer 
of H-1B guest workers, has announced over 330,000 job cuts since 2008. 
The construction industry, a major employer of H-2B guest workers, has 
laid off 1.9 million workers since December of 2007.
  The second amendment I filed yesterday mirrors a bill that the senior 
Senator from Illinois and I have worked on for several years. Known as 
the H-1B and L-1 Visa Reform Act of 2009, this amendment would improve 
two key visa programs by rooting out fraud and abuse while making sure 
Americans have the first chance of obtaining high-skilled jobs in this 
country.
  The amendment does several things, including: one, requiring 
employers to try and recruit U.S. workers before hiring H-1B visa 
holders; two, requiring employers to pay a better wage to visa holders 
who take these jobs; three, expanding the powers of the federal 
government to go after abusers; four, creating new rules regarding the 
outsourcing and outplacement of H-1B and L-1 workers by their employers 
to secondary employers in the United States; and five, establishing a 
new database that employers can use to advertise positions for which 
they intend to hire an H-1B worker.
  Too many American workers are unemployed today. Yet we still allow 
companies to import hundreds, even thousands, of foreign workers with 
very little strings attached. These businesses should be first asked to 
look at Americans to fill vacant positions, and they should be held 
accountable for displacing Americans to hire cheaper foreign labor.
  These two amendments go directly to the concerns about job creation 
and prevention of offshoring of U.S. jobs. Both amendments are 
bipartisan. Yet if cloture is invoked, these amendments would fall on 
the Senate cutting room floor.
  Unlike the 2004 JOBS bill, I have no confidence that, even if the 
Democratic leadership were to follow regular order for floor purposes, 
that we could expect anything like a conference committee to work out 
the issues between the House and the Senate.
  We find ourselves in a very disappointing situation today. Two 
serious issues are supposed to be addressed in the legislation before 
the Senate: The first is tax incentives for job creation; the second is 
measures to prevent offshoring of jobs. No doubt the people who send us 
here expect us to take these weighty matters seriously. With all the 
economic pain Americans are enduring, we shouldn't be playing political 
games. But here we are. We have a bill whose proponents claim is a 
serious effort.
  The Democratic leadership skipped the Finance Committee, and we are 
presented with a take-it-or-leave-it bill that is really nothing more 
than a political label. We can do better.


                             Cloture Motion

  The PRESIDING OFFICER. All time for debate has expired.
  Under the previous order and pursuant to rule XXII, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 578, S. 3816, the Creating American 
     Jobs and Ending Offshoring Act of 2010.
         Richard J. Durbin, Charles E. Schumer, Tom Harkin, 
           Sheldon Whitehouse, Debbie Stabenow, Barbara A. 
           Mikulski, Roland W. Burris, Bernard Sanders, Tom Udall, 
           Mark Begich, Daniel K. Akaka, Jeff Merkley, Benjamin L. 
           Cardin, Edward E. Kaufman, Christopher J. Dodd, Arlen 
           Specter, Sherrod Brown, Amy Klobuchar, Byron L. Dorgan, 
           Barbara Boxer.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 3816, a bill to amend the Internal Revenue Code 
of 1986 to create American jobs and to prevent the offshoring of such 
jobs overseas shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Arkansas (Mrs. Lincoln), 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent, the Senator 
from Alaska (Ms. Murkowski).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 53, nays 45, as follows:

                      [Rollcall Vote No. 242 Leg.]

                                YEAS--53

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

                                NAYS--45

     Alexander
     Barrasso
     Baucus
     Bennett
     Bond
     Brown (MA)
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lieberman
     Lugar
     McCain
     McConnell
     Nelson (NE)
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Tester
     Thune
     Vitter
     Voinovich
     Warner
     Wicker

                             NOT VOTING--2

     Lincoln
     Murkowski
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
45. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________