[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Pages 10640-10654]
[From the U.S. Government Publishing Office, www.gpo.gov]




          AMERICAN JOBS AND CLOSING TAX LOOPHOLES ACT OF 2010

  Mr. BAUCUS. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The clerk will report the pending business.
  The legislative clerk read as follows:

       Motion to concur in the House amendment to the Senate 
     amendment to H.R. 4213, an act to amend the Internal Revenue 
     Code of 1986 to extend certain expiring provisions, and for 
     other purposes.

  Pending:

       Baucus motion to concur in the amendment of the House to 
     the amendment of the Senate to the bill, with Baucus 
     amendment No. 4301 (to the amendment of the House to the 
     amendment of the Senate to the bill), in the nature of a 
     substitute.
       Franken amendment No. 4311 (to amendment No. 4301), to 
     establish the Office of the Homeowner Advocate for purposes 
     of addressing problems with the Home Affordable Modification 
     Program.
       Sanders amendment No. 4318 (to amendment No. 4301), to 
     amend the Internal Revenue Code of 1986 to eliminate big oil 
     and gas company tax loopholes and to use the resulting 
     increase in revenues to reduce the deficit and to invest in 
     energy efficiency and conservation.
       Vitter amendment No. 4312 (to amendment No. 4301), to 
     ensure that any new revenues to the Oil Spill Liability Trust 
     Fund will be used for the purposes of the fund and not used 
     as a budget gimmick to offset deficit spending.
       Reid amendment No. 4344 (to amendment No. 4301), to amend 
     the Internal Revenue Code of 1986 to extend the time for 
     closing on a principal residence eligible for the first-time 
     home buyer credit.
       Thune/McConnell amendment No. 4333 (to amendment No. 4301), 
     of a perfecting nature.

  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, George Santayana wrote:

       Those who cannot remember the past are condemned to repeat 
     it.

  Today, we must remember the past. We must learn from past mistakes, 
and we must do our best to avoid repeating them.
  In its response to the Great Depression of the 1930s, the Federal 
Government made a serious mistake. It is important to remember this 
past so we are not condemned to repeat it. The stock market crashed in 
1929. By 1933, the unemployment rate reached a high of 25 percent. A 
few years later--4 years later, to be precise--in 1937, the economy was 
rebounding. The unemployment rate had fallen to 14 percent, gross 
domestic product was growing at an average rate, if you can believe it, 
of 9 percent a year, and the stock market had more than doubled over 
the past 4 years. That was 1937. The economy was on the road to 
recovery. But this exceptional economic growth did not just happen. It 
resulted from strong actions by the Federal Government. From 1933 to 
1937, for example, the United States dramatically increased the money 
supply. Lower interest rates and greater credit availability helped to 
stimulate spending and economic growth. New Deal programs also helped. 
Spending was modest but significant compared to the magnitude of the 
Great Depression. But the response provided a notable boost to the 
economy, and it helped instill confidence in the Federal Government's 
ability to tackle the Depression.
  But in 1937, after 4 years of growth, the government made a mistake. 
Concerned about short-term deficits, what did it do? It began to cut 
spending and it began to raise taxes. A bonus for World War I veterans, 
which provided a boost in consumer spending, was allowed to expire in 
1937. Social security taxes were collected for the first time in 1937. 
And marginal tax rates increased dramatically. What happened? This 
premature attempt to reduce deficits pushed the economy back over the 
edge. It was premature. The jobless rate shot back up to 19 percent. In 
1938, gross domestic product fell by 3 percent. Shortsighted policy 
decisions caused a double-dip. The mistaken desire to balance the 
budget too quickly effectively lengthened the Great Depression by 2 
more years.
  I understand the desire today to reduce deficits. I share that 
desire. We do need to put in place deficit reduction that will take 
effect after the recovery has kicked in. But we must also learn from 
the 1937 history. We must not repeat the mistake that led to the 
double-dip downturn of the late 1930s. If we were to dramatically cut 
spending or increase taxes to reduce the deficit in the short run, it 
would run the risk of causing a double-dip in this great recession.
  Today, the economy remains too fragile to begin cutting back. 
Unemployment stands at 9.7 percent. The May jobs report was 
disappointing. The private sector created only 41,000 new jobs. In 
total, 15 million Americans still remain out of work, and half those 
unemployed have been unemployed for more than 6 months. Gross domestic 
product grew 3 percent in the first quarter of 2010, but this was down 
from 5.6 percent in the fourth quarter of 2009.
  Just as in 1937, we are in a recovery period. That is true. And just 
as in 1937, it is a recovery that is showing signs of weakness. If we 
act recklessly today, we risk a double-dip recession. If we adopt a 
constrictive fiscal policy in the short run, we risk prolonging the 
great recession for years to come. We cannot act without regard to the 
consequences of our actions.
  Make no mistake, we must tackle and should tackle our long-term 
deficits. That is clear. And that is why one of the goals of the 
President's Commission on Fiscal Responsibility and Reform is to 
``achieve fiscal sustainability over the long run.'' We do need to act 
aggressively to reduce our long-term deficits as the economy enters a 
phase of expansion. But first we must pull ourselves out of this great 
recession.
  One of the best things we can do to facilitate the delicate recovery 
is to pass the American Jobs and Closing Tax Loopholes Act before us 
today. This bill extends tax cuts for families and businesses that will 
help them in these difficult times, and this bill sustains vital social 
safety net programs that will also help foster economic growth.
  We have made the mistake of cutting back too soon once before, and we 
must not make it again. The Thune amendment, which will be before us in 
the not to distant future this week, will move in the wrong direction. 
Instead of helping to create economic demand, the Thune amendment would 
curtail aggregate demand by more than $50 billion. Instead of 
continuing the good the Recovery Act has done, the Thune amendment 
would chop it off.
  The Thune amendment would, among other things, cancel unspent and 
unallocated mandatory spending in the Recovery Act--stop it. That 
spending is working. The Recovery Act is working. The Federal Reserve 
and many independent economists have credited the Recovery Act with 
playing an important role in stabilizing the economy.
  This is what the nonpartisan Congressional Budget Office said in its 
most recent report:

       CBO estimates that in the first quarter of calendar year 
     2010, [the Recovery Act's] policies raised the level of real 
     . . . gross domestic product . . . by between 1.7 percent and 
     4.2 percent, lowered the unemployment rate by between 0.7 
     percentage points and 1.5 percentage points, increased the 
     number of people employed by between 1.2 million and 2.8 
     million, and increased the number of full-time equivalent 
     jobs by 1.8 million to 4.1 million compared with what those 
     amounts would have been otherwise.

  That is what CBO says about the recovery. And the Congressional 
Budget Office projects that the Recovery Act will continue to create 
jobs. It projects that the Recovery Act will create the peak number of 
jobs in the third quarter of this year and then begin to taper

[[Page 10641]]

off. But we do not want to abruptly cut that job creation off. In this 
fragile economy, the last thing we should do is to cut back on this 
proven job creator. It works. It has been working.
  We passed the Recovery Act to give a needed boost to our economy. The 
bill was designed to work over 2 years. That was the intent of it. We 
have successfully started down the road to recovery, but if we were to 
withdraw these critical funds, we would risk causing further damage to 
our fragile economy. Revoking the Recovery Act funds now would send 
exactly the wrong signal to the American economy and to unemployed 
Americans.
  The Thune amendment would also cut other valuable spending programs. 
The Thune amendment's spending cuts are arbitrary and they are 
restrictive. For example, one provision in the Thune substitute 
amendment would freeze the salaries of all Federal employees except for 
Members of the armed services. But what about civilian defense workers? 
What about law enforcement? What about border protection?
  Another provision would cap the total number of Federal employees at 
current levels. If an agency needed to hire a new employee, it would 
first need to find an existing employee to fire. This would 
dramatically reduce the flexibility of agencies to make hiring 
decisions.
  The Thune substitute amendment would also cut discretionary spending 
by 5 percent across the board for all agencies except the Department of 
Veterans Affairs and the Department of Defense. Apparently, this 5-
percent cut would apply to the Department of Homeland Security. It 
would apply to Immigration and Customs Enforcement. Apparently, it 
would apply to all the intelligence agencies, just to name a few.
  The Thune amendment would also, by the way, rescind $80 billion in 
appropriated but unspent Federal funds. But just because the funds have 
not yet been obligated does not mean they are superfluous. For example, 
when money is appropriated to build a battleship, it does not all get 
obligated in the first year. By cutting funds that have not yet been 
obligated, it would adversely affect the construction of that 
battleship.
  I support finding ways to make our government more efficient, but 
these cuts are arbitrary. They are inappropriately restrictive.
  The Thune amendment would also make changes to the new health care 
law that would leave more Americans without insurance. The Thune 
amendment does this by expanding the affordability exception to the 
individual mandate for purchasing health insurance. This expansion 
would eliminate coverage for millions of Americans. It would strike at 
the heart of health care reform. And the Congressional Budget Office 
tells us it would also increase premiums for everybody else.
  The Thune amendment, just to repeat, would increase premiums for 
millions of Americans who would have health insurance. The irony of 
this proposal in the Thune amendment is that it raises money for the 
government because the government would not provide as much in tax 
credits to Americans to help them buy insurance. That is the irony. But 
Congress has just enacted health care reform. Congress just expressed 
our Nation's commitment to helping all Americans to buy health 
insurance. We should let the new health care law take effect.
  The Thune amendment would also propose changes to our medical 
liability system that the Senate has rejected many times over the 
years. The Thune amendment would cap damages and make other changes to 
State laws. This is not the solution to medical malpractice.
  While the Congressional Budget Office says these kinds of ideas would 
generate savings, we should ask: What is the cost of those savings? 
What would be the cost to patients? What would be the cost to States?
  The same studies upon which CBO relied in calculating its cost 
estimate point out that certain tort reform policies may also increase 
the number of risky procedures performed. And these policies may lead 
to more patient injuries and more patient deaths.
  One study upon which CBO relied said that these policies would lead 
to a 0.2-percent increase in mortality.
  That sounds an awfully high price to pay.
  Imposing national tort reform standards flies in the face of our 
Nation's civil liability system. That system has always been forged at 
the State level. And national damage caps would put patient safety at 
risk.
  The Thune amendment employs some of the offsets that it does because 
it drops the oilspill liability tax. Imagine that: The proponents of 
the Thune amendment would rather put the recovery at risk by cutting 
back the Recovery Act, they would rather cut health insurance coverage 
in health reform, and they would rather expose patients to greater 
risk. They would rather do all these things than raise taxes on big 
oil, to pay for oilspills.
  And the Thune amendment employs some of the offsets that it does, 
because it drops some of the tax loophole closers in the underlying 
substitute amendment. The underlying substitute amendment closes 
loopholes in the Tax Code that unfairly benefit certain individuals.
  One such loophole is carried interest. The underlying substitute 
removes an inequity of the Tax Code that allows investment managers who 
operate through partnerships to have the income that they earn for 
their services taxed at half the tax rate of other working individuals.
  Here's how the carried interest tax loophole works. An investment 
manager joins a partnership with some investors. But the investment 
manager does not provide any capital. The investment manager provides 
services.
  The investment manager contracts to receive compensation not in the 
form of wage income, but in the form of a share of the partnership. 
That way, the investment manager gets to pay lower capital gains tax 
rates on the investment manager's income, rather than the higher wage 
tax rates that the rest of Americans pay.
  The underlying substitute says: No longer should we allow investment 
managers to have a better tax rate than teachers or doctors or 
firefighters. Our amendment plugs this tax loophole. But the Thune 
amendment would strike that provision. The Thune amendment would allow 
that tax loophole to continue.
  The underlying substitute also includes an important provision that 
closes another serious inequity in the Tax Code.
  Lawyers, doctors, and other professionals who operate as partners or 
sole proprietors are currently subject to Social Security taxes on 
their service income up to $106,800. And they are subject to Medicare 
taxes on all their service income. Everybody is. But some doctors and 
lawyers organize themselves as an S corporation and they can pay 
themselves an artificially low salary. That way, they can avoid paying 
Social Security or Medicare taxes on much of the income generated by 
their services. That is just not fair.
  And what is more, it hurts the Social Security and Medicare trust 
funds.
  The choice of entity should not affect an individual's tax liability 
for his or her services.
  Unfortunately, Senator Thune's amendment does not close this 
loophole. The Thune amendment would strike this loophole closer in the 
underlying substitute.
  The underlying substitute would also close several foreign tax 
loopholes.
  The Senate Finance Committee developed these loophole closers jointly 
with the House Ways and Means Committee, with the assistance of the 
Treasury Department.
  These loophole-closers would shut down highly structured and complex 
transactions implemented by multinational corporations to avoid paying 
U.S. tax.
  These tax benefits claimed by the multinational corporations were 
clearly not contemplated when Congress passed the tax law.
  Closing these loopholes would preserve and create jobs here in 
America. Closing these loopholes would discourage U.S. multinational 
corporations from shipping American jobs overseas.

[[Page 10642]]

  Permitting the continued exploitation of these loopholes would only 
encourage U.S. multinationals to invest additional capital overseas, 
rather than here in America. Allowing these loopholes to continue would 
result in the loss of American jobs.
  The underlying substitute amendment tackles these loopholes. Senator 
Thune's amendment, on the other hand, ignores them. By not addressing 
them, the Thune amendment would allow this irresponsibility to 
continue.
  And so, the Thune amendment would put the recovery at risk by 
curtailing the Recovery Act. It would cut the number of Americans with 
health insurance and raise premiums. It would nationalize medical 
malpractice law, putting patients at risk. And it would protect big oil 
and multinational corporations that ship their jobs overseas.
  I urge my colleagues to oppose the Thune amendment.
  And I urge my colleagues to support the bill before us. Let us 
protect and strengthen this fragile economic recovery. Let us preserve 
and create jobs, here in America. And let us enact the American Jobs 
and Closing Tax Loopholes Act.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I know Senator Thune will be here in a 
moment. I saw him just a while ago.
  One of the things hurting our economy is that Congress is sending no 
message whatsoever that we are serious about reducing the 
uncontrollable debt that every economist says is unsustainable, and 
that this is a cloud over our economic recovery. The sooner we quit 
thinking we can make the economy rebound by just spending a few more 
billion dollars and increasing our debt, the better off we will be and 
we will get on a sound track to go forward.
  I know good people can disagree, but I believe very strongly in this, 
and I just wanted to share that thought.


                          Oilspill in Alabama

  I would like to make a few brief comments about the oilspill in the 
Gulf of Mexico, and my home State of Alabama. I was there Friday and 
visited Orange Beach, Gulf Shores, Dauphin Island, and Bayou La Batre, 
examined the beaches and talked with our good mayors and other 
officials who are there. There are a few things I would like to share 
that indicate we are not where we need to be.
  I have not been one who wants to run out and blame the President for 
everything. But I do believe as we are now going into day 57 that we 
need to understand our response is not working well. It could be much 
better.
  For example, I visited Mayor Tony Kennon and his team in Orange 
Beach. Perdido Pass has a very strong current. You would think you 
could put up boom and stop oil from coming in. They told us oil was out 
there. They were expecting it to come in, maybe the biggest amount they 
had expected since the beginning of the spill. It was expected to hit 
the coast this past Saturday or Sunday, and it did indeed hit. The city 
is developing their own plan with their own engineer about how to deal 
with the currents and the flow of oil to keep it out of the estuaries 
that are inside of Perdido Pass.
  It is complicated. They had a top engineer, Henry Seawell, one of 
Alabama's best. He was there working on it. I just happen to know him. 
But the Coast Guard was not there; BP was not there. The mayor said:

       You know, we feel like we are not even at the table, we are 
     not at the children's table. They are not talking to us. But 
     we know more about how to deal with this pass than anybody 
     else in the U.S. Government because we have been working on 
     it, it is our area, and we are trying to protect it.

  Sure enough, the oil came. We were behind schedule. They started 
late. Nobody had done anything until the city started, apparently a 
good bit of oil got in and that is not good. It also got on the beach. 
We can clean that up pretty quickly, however a lot hit the beach.
  Then a little further down the beach, at Gulf Shores, we had a 
similar discussion. I went to Fort Morgan, across the mouth of the 
Mobile Bay where Admiral Farragut sailed in, and we went across to 
Dauphin Island. The mayor there, Jeff Collier, had some of the same 
concerns as Mayor Robert Craft in Gulf Shores. Then I went up and met 
with Mayor Stan Wright, the mayor of Bayou La Batre, himself a seafood 
processor. He noted to me, and has repeatedly stated, that Bayou La 
Batre probably represents the largest seafood processing on the entire 
gulf coast. They are basically being shut down, and a lot of people who 
work there are losing their jobs. They are low-income workers who do 
not have extra money to live on, and they are hurting, really hurting. 
If we are going to receive money from BP, they need to get it out there 
to the people right now, before they lose their homes or have their 
power cut off. The mayor told me how people are calling him about their 
electricity being cut off. It is not a little matter. The whole 
situation is a big deal.
  I am glad the President has gone to the gulf coast. I am hopeful 
tonight we will hear some good ideas for progress. I just wanted to 
share one thing that struck me very vividly. Mayor Kennon's team in 
Orange Beach told us they had seen a strip of compact oil from the air 
and a boat about 6 miles offshore. It had the red color, thick 
process--a strip about 30 miles wide and 2 miles long. This was Friday 
morning. It was expected to hit Friday night or early Saturday morning. 
Nobody knew for sure. But it had been out there for a number of days.
  So we are asking, Why don't we put a skimmer there? This is the only 
thing coming in that threatens the beaches. Apparently there were two 
strips of this offshore at some distance. It represents a significant 
threat. You could see that threat getting closer and closer. The 
obvious thought--Mr. President, having been from Alaska, you know the 
importance of these matters--if you had a good skimmer--where two boats 
pull the boom and direct the oil into a central location, then you can 
get it out and put it in a barge or tanker.
  There was not any. It would have been rather easy, I suggest, with a 
good skimmer, to have gone out, with plenty of time to scoop up almost 
all of that oil or at least a big portion of it. That was not done. It 
kept coming in, and coming in, and basically by Saturday it was hitting 
the beaches.
  You ask, where are they? We are not talking with one another enough, 
it seems to me. It does appear there are more skimmers, more boom, more 
vessels, equipment, and pumps available around the world that could be 
called on to assist, and we have not accepted all offers of assistance. 
Nor have we, apparently, sought to lease, buy or purchase the boom, 
pumps, and skimmers that might help us.
  I was just looking at a press release today that stated, Admiral 
Allen, the national incident commander, Provides Guidance to Ensure 
Expedited Jones Act Waiver Processing Should It Be Needed.''
  He says he will process any requests for waivers of the Jones Act.
  For some reason the admiral is still talking about waivers and 
offering to expedite them. Who is requesting them? Why doesn't he 
request it? If there is a ship that can skim, it can be brought down to 
the gulf coast, and it would make a big difference. In fact, I saw the 
admiral, I believe, the day before yesterday on the television say we 
need to do a better job. This would have been Monday. We need to do a 
better job of intercepting the oil between the spill site and the 
shore.
  Good. I thought it might be harder to do. I thought it might be 
little splotches here and there, all over, and it would be impossible 
to scoop it all up. But if it is moving, and it tends to move in lines 
and fairly compact 30-foot strips, then with good equipment we can make 
a big dent and just stop it.
  So I don't know what the problem is. But we do know 17 countries have 
offered to help, however we only have two skimmers, as I understand it, 
in the gulf, and those are from Mexico--which we are glad to have. 
Pumps have been offered. I do not believe we have taken advantage of 
that. It takes some pretty good pumping equipment to get this oil 
soaked up, and only 600,000 feet of boom have been received from 
abroad. The UK has also offered us dispersants, which we have not 
taken.

[[Page 10643]]

  I don't know what all the details are, but it seems to me that we can 
and must do a better job of coordinating. We need to ensure people who 
need resources are paid now, and we need to understand that there is 
great potential for effective skimming to occur where the oil has 
formulated and configured in groups so it can be skimmed. That 
apparently is more feasible than a lot of people understand. We need to 
be focusing on that.
  The people along the gulf coast are upset about it. One mayor told 
me: I am a man of good judgment. I am worried about BP's slow response. 
They talk about responding. They talk about paying, but not enough 
payment is actually getting out where we have clear cases of 
substantial losses. Of course, the economy is not where it has been and 
where we need to see it develop. The beach areas probably wouldn't have 
been as strong this year as previous years because of the economic 
downturn. But the testimony from people at public meetings I have 
attended is crystal clear that we have almost a 50-percent drop in 
reservations, a 50-percent drop in bookings, and this ripples through 
the entire community. We already have real estate problems. We already 
have a little decline in beach attendance. Now we have all this 
horrible news on the TV and large amounts of cancellations. Some people 
do need money now. This process needs to be accelerated, and I hope we 
will hear something in some of what the President tells us tonight. I 
think he has heard that. He has been down to the gulf coast. He has 
talked to people. He probably has a better understanding today, after 
we are 2 months into it, than he previously had.
  Maybe we can make this system work a little better. I don't only want 
to complain. I am thankful the President is showing attention. I am 
thankful he has stepped out and is showing some leadership. But for 
some reason, there still seems to be a lack of connection between the 
talk up at the top and what is happening on the ground. I have been 
there. I have talked to people. People are not getting money. People 
are in serious crisis already, people who would be entitled to receive 
moneys. I don't think BP should pay out money fraudulently. They don't 
need to pay those who don't deserve it. They ought to be careful in how 
they handle these payments. But for the most part, people are making 
legitimate claims. Some of them are desperate now. I don't think we 
have a unified effective plan to intercept as much of the oil as we 
could offshore. Nor have we had the kind of support from the Federal 
Government we would like to see, with scientifically determined 
processes, placing boom and skimming equipment to stop the flow of the 
oil, particularly into our estuaries, including Mobile Bay.
  Mobile Bay is not that wide of an opening. People thought we could 
stop it. You could put boom across and stop it. The truth is, with the 
tides, it is a strong current. Anchors won't hold it. When water moves 
in, it will go over or under or even break the boom. It is not an easy 
thing. We need some sort of Chevron-like layers of boom outside the 
entrance to try to catch as much as we can before it comes in. A 
little, but I don't think enough, effort has been made. In fact, we now 
had a significant amount of oil that have gotten into that great 
estuary.
  I wanted to share those thoughts. I believe we can do better. I 
believe oil production in the gulf is essential for the national 
interest. I believe this spill, this accident should not have happened. 
I believe if people had been exceedingly careful and competent in what 
they did, this would not have happened. I believe after this accident, 
there is going to be a complete review by every company out there. I 
think we will have an even lower possibility of accidents in the 
future. But we need more confidence that blowout preventers work, and 
that we have safety mechanisms in place. We need more confidence that 
this will happen. We need to understand there is always a possibility 
that some sort of blowout or spill will occur, but we can do better to 
prevent it. We can do better about plugging the leak or capturing the 
oil where it comes out of the pipe. I believe all of these are 
possible.
  I am not happy. I am disappointed that we weren't better prepared in 
case such an accident did occur. Very disappointed. I believe the oil 
industry, in particular BP's plan, as the Mobile Press Register has 
pointed out, was not well thought out. Their plan talked about what to 
do with walruses and things such as that. We don't have any walruses on 
the gulf coast. This was not a well thought out plan. Criticism is 
justified in many different areas.
  I thank the Chair for the opportunity to share my thoughts. Again, I 
appreciate the President visiting the gulf coast. Hopefully, they are 
breaking down some of these dysfunctional areas to get us to a higher 
level of response and effectiveness, and maybe they will also be able 
to continue to make progress in reducing the amount of flow coming out 
of this well. Obviously, that is the most critical point.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Gillibrand). The clerk will call the 
roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BARRASSO. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BARRASSO. Madam President, the tax extenders bill includes a 
settlement that involves a class action lawsuit that is known as Cobell 
v. Salazar. The total cost of this settlement is about $3.4 billion. 
This settlement will affect hundreds of thousands of Indian people 
across the United States who are class members in this lawsuit. It was 
signed last December by the Obama administration with the lead 
plaintiffs and their attorneys. Part of the settlement provides $1.4 
billion to individual Indians whose trust assets have been mismanaged 
by the Federal Government for over 100 years. Another $2 billion would 
be used by the Department of the Interior to consolidate Indian land 
ownership to prevent a repeat of these claims.
  On Wednesday, June 9, 2010, Attorney General Holder and Secretary 
Salazar sent letters to the Senate leaders opposing an amendment I 
filed on Tuesday, June 8. My amendment corrects serious flaws in the 
settlement. I am going to respond to their letter as well as explain my 
amendment.
  The Attorney General and the Secretary argue that the amendment makes 
material changes to the settlement that would render it void. To begin 
with, I must point out that the parties have changed their settlement 
in material ways several times--several times--since it was announced 
that the agreement had been reached. Whenever they deem fit, they 
change it. For the reasons I am about to go into, they should change it 
again. If they don't, then Congress should act.
  In their letter to leadership, the Attorney General and Secretary 
Salazar say:

       The nature of any settlement agreement is that no one gets 
     everything they asked for.

  I know the Cobell case has waged on and on in the courts for 14 
years. It has been up and down on appeal many times--too many times. In 
fact, it is on appeal right now. So I support settling this case. I 
support providing fair compensation to people harmed by decades of 
Federal mismanagement. I support consolidating the fractionated 
ownership of land to prevent the recurrence of problems that led to 
this court case. But I cannot support the settlement as drafted by the 
administration. It has flaws, and I believe some of them are very 
serious. All of them can and should be fixed without making major 
changes to its overall structure. Leaders in Indian country agree.
  I ask unanimous consent that a letter dated June 11, 2010, from the 
National Congress of American Indians to Senator Dorgan and to me be 
printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BARRASSO. Madam President, the National Congress of American 
Indians' letter states that the changes in my amendment address 
legitimate concerns that have been raised by tribal

[[Page 10644]]

leaders and Indian people. The NCAI letter references resolutions 
passed by the Affiliated Tribes of Northwest Indians and the Great 
Plains Tribal Chairmen's Association supporting my amendment.
  So what does my amendment do? It addresses five significant 
weaknesses in the settlement. The first issue is attorneys fees. This 
settlement was signed by the Department of Justice and two of the 
plaintiffs on December 7, 2009. Originally, the settlement said that 
Congress had to approve it in 24 days--by New Year's Eve. Well, 
supporters said there was no time for a hearing; Congress had to act 
immediately. I disagreed. Any $3.4 billion settlement paid for by 
taxpayers that affects the lives of hundreds of thousands of people 
should have a hearing before Congress.
  I requested that the Committee on Indian Affairs hold a hearing on 
the settlement. Chairman Dorgan scheduled one nearly 6 months ago and 
that hearing was December 17, 2009. During the hearing, it was 
disclosed that the parties had entered into a separate agreement 
covering attorneys fees. In the side agreement, the plaintiffs' lawyers 
agreed not to ask the court for more than $99.9 million in 
presettlement attorneys' fees and costs, and the administration agreed 
not to argue that the attorneys should get anything less than $50 
million. So, in effect, the two parties quietly agreed that the 
plaintiffs' attorneys should be paid between $50 million and $100 
million.
  This separate agreement also provided that when attorneys asked the 
court for presettlement fees, the attorneys must provide 
contemporaneous time records, but they said only ``where available.'' 
This is a very remarkable agreement, especially for a court case that 
was pretty much all about inadequate government recordkeeping in the 
first place.
  What the government has done is agreed not to demand 
contemporaneously prepared time records when the attorneys ask the 
court for their fees--fees that will be taken directly out of the funds 
that are supposed to be distributed to the class members in the suit. 
This settlement should be about compensating the individual Indians who 
were harmed by government mismanagement. My amendment requires 
production of contemporaneous records and it caps the fees at $50 
million. Fifty million dollars is an amount that both parties agreed 
would not be appealed. It is their number, so it must be fair.
  Besides the issue of attorneys fees, there have been other concerns 
raised about the settlement--about the possibility of a multimillion 
dollar incentive award to named plaintiffs; about the qualification of 
the bank where the money will be deposited; about the role of Indian 
tribes and the land consolidation aspect of the settlement; and about 
the formula for distributing the money. My amendment addresses each of 
these issues.
  The amendment would also require that any ``incentive awards'' to 
named plaintiffs be justified by documented expenses. Leading the case 
of Indian landowners against the government for 14 years has 
undoubtedly been an exhausting burden and an expensive burden. The 
named plaintiffs should be allowed to ask the court to have those 
expenses reimbursed. My amendment would limit any such award to an 
aggregate amount of $15 million and only for the expenses incurred by 
the class representatives. This is the amount the plaintiffs told us is 
their total estimated out-of-pocket expenses. The amendment would allow 
full reimbursement of these expenses.
  My amendment also addresses the selection of the bank that will hold 
the $1.4 billion in settlement funds. The settlement is especially lax 
in setting standards to ensure the safety of these funds--lax, I 
believe, to the point of being irresponsible. My amendment simply 
requires the court to consider certain factors when approving a 
proposed bank: experience, a history of regulatory compliance, plus 
competitive interest rates and fees. These factors are important 
because if anything happens to the money, then the class members bear 
the risk of the loss. I cannot fathom why asking the court to simply 
consider these commonsense protections will void the settlement.
  The amendment I have offered will require the Secretary of the 
Interior to consult with Indian tribes on implementation of the Indian 
land consolidation program. In order for this $2 billion consolidation 
program to succeed, the tribal governments should be partners in 
implementation. The amendment would require that to happen.
  Finally, my amendment would provide relief for certain class members 
for whom the pro rata formula used in the settlement does not work. 
This formula is simple and will be easy to use. That is why the 
administration likes it. In many cases, the formula won't work and will 
lead to unfair results. It is necessary that we create a system for 
individual class members with unique circumstances to petition the 
court for a nonstandard settlement payment.
  Under my amendment, the court would be provided with broad 
flexibility to make discretionary awards in appropriate cases.
  In closing, I urge Members of the Senate to support this amendment to 
the Cobell settlement provisions in this measure. My amendment doesn't 
change the structure of the settlement. It does improve, however, the 
agreement for the hundreds of thousands of class members covered by the 
settlement.
  What my amendment doesn't do is void the agreement. Let me repeat, my 
amendment does not void the agreement; it does not void the settlement. 
Plaintiffs have the ability to void the settlement if they don't 
believe the changes are in the best interests of the class members. The 
administration can void it if they don't believe there should be 
financial standards for selection of the bank that will hold and manage 
$1.4 billion of settlement funds. By passing this amendment, we will 
not void the agreement.
  Congress has the obligation to never rubberstamp an agreement and to 
not rubberstamp this agreement.
  Adopting my amendment is the right thing to do.
  I yield the floor.

                               Exhibit 1

                                                 National Congress


                                          of American Indians,

                                    Washington, DC, June 11, 2010.
     Re Cobell Settlement and Senator Barrasso's Amendment 4313 to 
         the American Jobs and Closing Tax Loopholes Act of 2010.

     Hon. Byron Dorgan,
     Chair, Committee on Indian Affairs, U.S. Senate, Washington, 
         DC.
     Hon. John Barrasso,
     Vice Chair, Committee on Indian Affairs, U.S. Senate, 
         Washington, DC.
       Dear Chairman Dorgan and Vice Chairman Barrasso: As you 
     know, a very important vote may soon occur in the Senate. 
     Currently the Senate is considering H.R. 4213, the American 
     Jobs and Closing Tax Loopholes Act of 2010. For Indian people 
     across the country the most important provision in the 
     legislation is Section 607, which would authorize the 
     settlement of the Cobell v. Salazar litigation over federal 
     mismanagement of Indian trust funds. Senator Barrasso has 
     proposed an amendment that would address some concerns about 
     the settlement that have been raised by tribal leaders and 
     Indian people. These are legitimate concerns that have come 
     from the grassroots in Indian country, and it is our hope 
     that the parties and the Senate try to find common ground on 
     these concerns.
       The National Congress of American Indians has long 
     supported a settlement of this litigation because it is time 
     to bring justice to Indian people and because the contentious 
     litigation has distracted from efforts to address the many 
     other issues that Indian country faces. When the settlement 
     was first announced in December of 2009, there was a general 
     feeling of elation and relief throughout Indian country. We 
     are extremely grateful to the Administration and to Eloise 
     Cobell and her team for working so hard on this settlement 
     and bringing it to the brink of resolution.
       However, we also believe that Ms. Cobell described it well 
     when she said that this is a ``bittersweet victory'' for 
     Indian country. There is no doubt that the injuries to Indian 
     people have been much greater than the compensation they will 
     receive. In addition, over the past several months, Indian 
     tribes and Indian people have had an opportunity to more 
     closely examine the details of the settlement. Hearings have 
     been held in Congress, and meetings have taken place on 
     reservations across the country. As might be expected with a 
     class action settlement of this size and complexity, the 
     details have generated considerable discussion and some 
     disagreements.

[[Page 10645]]

       Senator Barrasso has solicited the views of tribal leaders 
     on the details of the settlement and has filed a proposed 
     amendment. The Affiliated Tribes of Northwest Indians and the 
     Great Plains Tribal Chairman's Association, two large and 
     well respected regional tribal organizations, have both 
     passed resolutions favoring Senator Barrasso's amendment. A 
     similar resolution has been submitted to NCAI for 
     consideration during our Midyear Session during the week of 
     June 20. However, NCAI's consideration of the resolution may 
     happen after Congress has voted.
       As you know, both the Administration and the Cobell 
     plaintiffs have raised concerns that any amendments to the 
     Cobell settlement legislation would render the settlement 
     null and void. We understand the need for the parties to a 
     difficult settlement to adopt this posture. However, we have 
     little doubt that if Congress were to make modest and 
     reasonable adjustments, the parties will readily amend the 
     settlement agreement to conform to the implementing 
     legislation.
       NCAI's interest is that Congress passes a settlement that 
     is responsive to legitimate concerns raised by tribal leaders 
     and members of the class, and that a contested floor vote on 
     these issues may not be conducive to our shared goal of 
     settling the litigation. I will briefly address the elements 
     of Senator Barrasso's amendment. Amendment 4313 would:
       1. Cap attorneys' fees at $50 million and incentive awards 
     at expenses up to $15 million. The settlement was accompanied 
     by a side agreement that the federal government would not 
     contest an award of attorney's fees in a range between $50 to 
     $100 million. These attorneys' fees have generated 
     considerable discussion. Most account holders will receive an 
     award in the range of $1500, which is less than what was 
     expected. Over the years, the Cobell plaintiffs have 
     frequently estimated the size of the damages in the hundreds 
     of billions, so disappointment at the size of the award has 
     combined with views about the size of the attorneys' fees. 
     This is a difficult issue because we also recognize that the 
     Cobell attorneys have worked very hard on the litigation for 
     the last 14 years, and class action attorneys in Indian law 
     cases should be fairly compensated on a par with similar 
     class actions. We suggest that the numbers are not far apart, 
     and an accommodation could be reached.
       2. Require that a special master select the bank that will 
     handle the $1.4 billion award. The settlement agreement 
     indicates that the award will be deposited in a bank selected 
     by the plaintiffs and approved by the court. Senator 
     Barrasso's amendment would require that court should consider 
     certain criteria for experience in the handling of large 
     deposits, compliance with banking laws, and competitiveness 
     of fees. This appears to be a reasonable provision to ensure 
     competent and efficient management of the funds.
       3. Allow tribes to participate in the land consolidation 
     program that will occur on their reservations. NCAI strongly 
     supports Senator Barrasso's proposal to permit tribes to 
     participate in the land consolidation program that will be 
     funded by the settlement. Land consolidation is critical for 
     addressing trust management problems created by fractionation 
     and preventing future mismanagement. However, Indian tribes 
     have had concerns about the ability of the Bureau of Indian 
     Affairs to administer the land consolidation program on the 
     scale and in the timeframe required by the settlement. Since 
     1975, Indian tribes have been able to contract with the BIA 
     to manage BIA programs on their reservations. The Indian Land 
     Consolidation Program is one of the few programs that does 
     not allow tribal participation in this way. We believe that 
     allowing tribal governments to participate in land 
     consolidation will greatly benefit the program because tribes 
     have the greatest interest in its success, and because tribes 
     know the local conditions on their reservations much better 
     than a centrally-located BIA.
       4. Set aside a $50 million fund for class members who may 
     not be fairly compensated by the formula distribution. The 
     inclusion of natural resource mismanagement claims within the 
     settlement has been controversial within Indian country 
     because it was not a part of the original Cobell claim, and 
     because the formula would be unfair to some landowners. 
     Although the resource mismanagement settlement allows an opt-
     out, it would be extraordinarily difficult for Indian 
     landowners to pursue mismanagement claims on their own. 
     Senator Barrasso's amendment would set-aside $50 million out 
     of the settlement to make equitable adjustments for certain 
     landowners who would not be adequately compensated by the 
     formula. So long as it does not substantially slow down the 
     operation of the formula distribution, we believe it is 
     reasonable to set aside a small portion of the settlement to 
     smooth out some of the inequities of the formula system.
       Thank you very much for considering our views on this 
     important issue. We greatly appreciate the enormous efforts 
     that all of you have put into resolving the Indian trust 
     funds litigation.
           Sincerely,
                                                   Jefferson Keel,
                                                   NCAI President.

  Mr. BARRASSO. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. KAUFMAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KAUFMAN. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Arthur S. Flemming Awards 2009

  Mr. KAUFMAN. Madam President, I rise today once again to recognize 
some of our Nation's great Federal employees.
  This week, the Trachtenberg School at the George Washington 
University announced the winners of the annual Arthur S. Flemming 
Awards. These distinguished awards for public service have been 
bestowed upon outstanding Federal employees for the past 61 years. The 
Flemming Awards recognize career Federal employees, both civilian and 
military, who have served between 3 and 15 years in government. 
Nominees come from across the many departments, agencies, and service 
branches. Notable winners include former Senators Elizabeth Dole and 
Daniel Patrick Moynihan, Defense Secretary Robert Gates, former Federal 
Reserve Chairman Paul Volcker, astronaut Neil Armstrong, among others.
  The awards are named for Arthur S. Flemming, who had a long and 
exemplary career in public service which spanned from 1939 until his 
death in 1996. He served in a number of important roles, including 
Secretary of Health, Education, and Welfare under President Eisenhower.
  Secretary Flemming also served on the U.S. Civil Service Commission 
under Presidents Roosevelt and Truman, the National Advisory Committee 
on the Peace Corps under Presidents Kennedy and Johnson, and as 
Chairman of the U.S. Commission on Civil Rights under Presidents Nixon, 
Ford, Carter, and Reagan. President Clinton awarded him the Medal of 
Freedom in 1994.
  It is fitting that these awards, which were originally bestowed by 
the DC Jaycees, are named for Flemming. His lifetime of dedication to 
public service continues to inspire so many.
  The Flemming Awards are divided into three categories: applied 
science, engineering, and mathematics; basic science; and managerial or 
legal achievement. These categories highlight some of the most 
outstanding and exciting accomplishments by our public servants who are 
helping to lead the way in scientific discovery, efficient public 
management, and upholding justice.
  This year's medals in applied science, engineering, and mathematics 
were won by a trio of brilliant individuals who are keeping America at 
the forefront of STEM research.
  Dr. Lynn Antonelli is leading the way in developing laser-based 
sensors for the Navy. The sensors she and her team created have found 
commercial and medical applications, in addition to providing our Navy 
vessels with extended optics and sensing underwater.
  Dr. Steven Brown of the National Institute of Standards and 
Technology--or NIST--also works with light. He and his team have made 
great strides in the field of light measurement that have enabled more 
detailed environmental imaging of the Earth. His work is 
revolutionizing the ability to detect minute changes in the environment 
as a result of climate change.
  Also winning the applied science, engineering, and mathematics award 
is Dr. John Kitching. John has been leading the world's top research 
program in atomic measurement. He and his team developed ultra-
miniature devices that can improve the accuracy of GPS, 
telecommunications, and medical imaging. They even have important 
national security uses, including in the more accurate detection of 
chemical toxins.
  The three Federal employees who won this year's award for basic 
science are pioneers on the cutting edge of science research.

[[Page 10646]]

  Dr. Dietrich Leibfried is one of NIST's leading experts on quantum 
computing. This exciting field could lead to supercomputers faster and 
more powerful than the best ones we have today. Dietrich Leibfried is 
responsible for many innovations in quantum computing, including the 
successful demonstration of a simple, fully programmable quantum 
computer, the first step in a long-term effort to build supercomputers 
that can handle nationally important applications, such as weather 
prediction, secure data encryption, and developing new drugs.
  The basic science award is also going to Dr. Shyam Sharan of the 
National Cancer Institute at the National Institutes of Health. He has 
developed a simple and reliable way to analyze genetic mutations that 
increase a patient's chances of developing breast cancer. This will 
help doctors identify those who have the highest risk of cancer and 
treat them preventively.
  Sharing the award with them is Dr. Eite Tiesinga, who works at NIST 
on ultra-cold atoms. By manipulating these atoms, scientists can 
carefully tune the quantum gases that might one day power quantum 
computers. Eite is frequently asked by researchers around the world to 
consult on their measurements and findings, and his work on ultra-cold 
atoms has put the United States ahead in the race to achieve successful 
quantum computing.
  Four outstanding public employees were chosen for this year's 
managerial and legal achievement medal.
  Angela Clowers works at the Government Accountability Office, and she 
led the GAO's efforts to audit transportation investments made under 
the Recovery Act. Her careful analysis and testimony before Congress 
prompted the Department of Transportation to refocus some of its 
investments in order to stimulate additional job growth. Angela also 
led the GAO's audit of government assistance to the American auto 
industry under TARP.
  Another who won this award is Dr. Marla Dowell of NIST'S laboratory 
in Boulder, CO. Marla leads the world's most comprehensive research 
program in laser metrology. She won this award for outstanding 
management skills and for leading a team that is developing lasers for 
highly accurate measurement of manufacturing equipment. This will have 
profound and positive effects on both defense programs and high-tech 
businesses.
  Kana Enomoto won the award for a distinguished career working on 
mental health access. She served as a leader in this area in the 
aftermath of Hurricane Katrina through her work at the Substance Abuse 
and Mental Health Services Administration. Kana also spearheaded 
efforts to improve the agency's operations, human resource management, 
and other critical functions as the Acting Deputy Administrator.
  The fourth winner of this award is Natalie Harrop of the Air Force 
Global Logistics Center in Utah. Natalie distinguished herself as a 
lead budget analyst for the Air Force's 748th Supply Chain Management 
Group. She revolutionized the group's financial management, and her new 
system is being implemented across the 448th Supply Chain Management 
Wing. It is saving hundreds of work hours and over $5 million.
  These 10 men and women are not an exception, they are exemplary. They 
represent the norm of excellence of our civil service. They have 
achieved great things and now join the ranks of those who share the 
Arthur S. Flemming Award for their great contribution to our Nation.
  I hope my colleagues will join me in congratulating the winners of 
the 2009 Arthur S. Flemming Awards and thanking them all for their 
service. They are all truly great Federal employees.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BEGICH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Kaufman). Without objection, it is so 
ordered.
  Mr. BEGICH. Mr. President, I ask unanimous consent that the following 
amendments be debated concurrently for the total time specified in this 
agreement: Sanders, 4318; Vitter, 4312; Franken, 4311; that the Franken 
amendment be modified with the changes at the desk; with the debate 
time divided as follows: 20 minutes equally divided between Senators 
Sanders and Inhofe; 20 minutes equally divided between Senators Baucus 
and Vitter or their designees; and 20 minutes equally divided between 
Senators Franken and Vitter or their designees, with no intervening 
amendments in order; that each of the listed amendments in this 
agreement be subject to an affirmative 60-vote threshold; and that if 
the amendment, as modified where applicable, achieves that threshold, 
then it be agreed to and the motion to reconsider be laid upon the 
table; that if the amendment does not achieve that threshold, then it 
be withdrawn; that prior to each vote, there be 2 minutes of debate, 
equally divided and controlled, and that after the first vote, the 
succeeding votes be limited to 10 minutes each; that upon the use or 
yielding back of the total time specified above, the Senate proceed to 
vote in relation to the amendments in the order listed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4311), as modified, is as follows:

       At the appropriate place, insert the following:

               TITLE __--OFFICE OF THE HOMEOWNER ADVOCATE

     SEC. _01. OFFICE OF THE HOMEOWNER ADVOCATE.

       (a) Establishment.--There is established in the Department 
     of the Treasury an office to be known as the ``Office of the 
     Homeowner Advocate'' (in this subtitle referred to as the 
     ``Office'').
       (b) Director.--
       (1) In general.--The Director of the Office of the 
     Homeowner Advocate (in this subtitle referred to as the 
     ``Director'') shall report directly to the Assistant 
     Secretary of the Treasury for Financial Stability, and shall 
     be entitled to compensation at the same rate as the highest 
     rate of basic pay established for the Senior Executive 
     Service under section 5382 of title 5, United States Code.
       (2) Appointment.--The Director shall be appointed by the 
     Secretary, after consultation with the Secretary of the 
     Department of Housing and Urban Development, and without 
     regard to the provisions of title 5, United States Code, 
     relating to appointments in the competitive service or the 
     Senior Executive Service.
       (3) Qualifications.--An individual appointed under 
     paragraph (2) shall have--
       (A) experience as an advocate for homeowners; and
       (B) experience dealing with mortgage servicers.
       (4) Restriction on employment.--An individual may be 
     appointed as Director only if such individual was not an 
     officer or employee of either a mortgage servicer or the 
     Department of the Treasury during the 4-year period preceding 
     the date of such appointment.
       (5) Hiring authority.--The Director shall have the 
     authority to hire staff, obtain support by contract, and 
     manage the budget of the Office of the Homeowner Advocate.

     SEC. _02. FUNCTIONS OF THE OFFICE.

       (a) In General.--It shall be the function of the Office--
       (1) to assist homeowners, housing counselors, and housing 
     lawyers in resolving problems with the Home Affordable 
     Modification Program of the Making Home Affordable initiative 
     of the Secretary, authorized under the Emergency Economic 
     Stabilization Act of 2008 (in this subtitle referred to as 
     the ``Home Affordable Modification Program'')
       (2) to identify areas, both individual and systematic, in 
     which homeowners, housing counselors, and housing lawyers 
     have problems in dealings with the Home Affordable 
     Modification Program;
       (3) to the extent possible, to propose changes in the 
     administrative practices of the Home Affordable Modification 
     Program, to mitigate problems identified under paragraph (2);
       (4) to identify potential legislative changes which may be 
     appropriate to mitigate such problems; and
       (5) to implement other programs and initiatives that the 
     Director deems important to assisting homeowners, housing 
     counselors, and housing lawyers in resolving problems with 
     the Home Affordable Modification Program, which may include--
       (A) running a triage hotline for homeowners at risk of 
     foreclosure;
       (B) providing homeowners with access to housing counseling 
     programs of the Department of Housing and Urban Development 
     at no cost to the homeowner;

[[Page 10647]]

       (C) developing Internet tools related to the Home 
     Affordable Modification Program; and
       (D) developing training and educational materials.
       (b) Authority.--
       (1) In general.--Staff designated by the Director shall 
     have the authority to implement servicer remedies, on a case-
     by-case basis, subject to the approval of the Assistant 
     Secretary of the Treasury for Financial Stability.
       (2) Resolution of homeowner concerns.--The Office shall, to 
     the extent possible, resolve all homeowner concerns not later 
     than 30 days after the opening of a case with such homeowner.
       (c) Commencement of Operations.--The Office shall commence 
     its operations, as required by this subtitle, not later than 
     3 months after the date of enactment of this Act.
       (d) Sunset.--The Office shall cease operations as of the 
     date on which the Home Affordable Modification Program ceases 
     to operate.

     SEC. _03. RELATIONSHIP WITH EXISTING ENTITIES.

       (a) Transfer.--The Office shall coordinate and centralize 
     all complaint escalations relating to the Home Affordable 
     Modification Program.
       (b) Hotline.--The HOPE hotline (or any successor triage 
     hotline) shall reroute all complaints relating to the Home 
     Affordable Modification Program to the Office.
       (c) Coordination.--The Office shall coordinate with the 
     compliance office of the Office of Financial Stability of the 
     Department of the Treasury and the Homeownership Preservation 
     Office of the Department of the Treasury.

     SEC. _04. RULE OF CONSTRUCTION.

       Nothing in this section shall prohibit a mortgage servicer 
     from evaluating a homeowner for eligibility under the Home 
     Affordable Foreclosure Alternatives Program while a case is 
     still open with the Office of the Homeowner Advocate. Nothing 
     in this section may be construed to relieve any loan services 
     from otherwise applicable rules, directives, or similar 
     guidance under the Home Affordable Modification Program 
     relating to the continuation or completion of foreclosure 
     proceedings.

     SEC. _05. REPORTS TO CONGRESS.

       (a) Testimony.--The Director shall be available to testify 
     before the Committee on Banking, Housing, and Urban Affairs 
     of the Senate and the Committee on Financial Services of the 
     House of Representatives, not less frequently than 4 times a 
     year, or at any time at the request of the Chairs of either 
     committee.
       (b) Reports.--Once annually, the Director shall provide a 
     detailed report to Congress on the Home Affordable 
     Modification Program. Such report shall contain full and 
     substantive analysis, in addition to statistical information, 
     including, at a minimum--
       (1) data and analysis of the types and volume of complaints 
     received from homeowners, housing counselors, and housing 
     lawyers, broken down by category of servicer, except that 
     servicers may not be identified by name in the report;
       (2) a summary of not fewer than 20 of the most serious 
     problems encountered by Home Affordable Modification Program 
     participants, including a description of the nature of such 
     problems;
       (3) to the extent known, identification of the 10 most 
     litigated issues for Home Affordable Modification Program 
     participants, including recommendations for mitigating such 
     disputes;
       (4) data and analysis on the resolutions of the complaints 
     received from homeowners, housing counselors, and housing 
     lawyers;
       (5) identification of any programs or initiatives that the 
     Office has taken to improve the Home Affordable Modification 
     Program;
       (6) recommendations for such administrative and legislative 
     action as may be appropriate to resolve problems encountered 
     by Home Affordable Modification Program participants; and
       (7) such other information as the Director may deem 
     advisable.

     SEC. _06. FUNDING.

       Amounts made available for the costs of administration of 
     the Home Affordable Modification Program that are not 
     otherwise obligated shall be available to carry out the 
     duties of the Office. Funding shall be maintained at levels 
     adequate to reasonably carry out the functions of the Office.

     SEC. _07. PROHIBITION ON PARTICIPATION IN MAKING HOME 
                   AFFORDABLE FOR BORROWERS WHO STRATEGICALLY 
                   DEFAULT.

       No mortgage may be modified under the Making Home 
     Affordable Program, or with any funds from the Troubled Asset 
     Relief Program, unless the servicer of the mortgage loan has 
     determined, in accordance with standards and requirements 
     established by the Secretary of the Treasury, that the 
     mortgagor cannot afford to make payments under the terms of 
     the existing mortgage loan. The Secretary of the Treasury, in 
     consultation with the Secretary of Housing and Urban 
     Development, shall issue rules to carry out this section not 
     later than 90 days after the date of enactment of this Act.

     SEC. _08. PUBLIC AVAILABILITY OF INFORMATION.

       (a) Public Availability of Data.--The Secretary of the 
     Treasury shall revise the guidelines for the Home Affordable 
     Modification Program of the Making Home Affordable initiative 
     of the Secretary of the Treasury, authorized under the 
     Emergency Economic Stabilization Act of 2008 (Public Law 110-
     343), to establish that the data collected by the Secretary 
     of the Treasury from each mortgage servicer and lender 
     participating in the Program is made public in accordance 
     with subsection (2).
       (b) Content.--Not more than 60 days after each monthly 
     deadline for submission of data by mortgage servicers and 
     lender participating in the program, the Treasury shall make 
     all data tables available to the public at the individual 
     record level. This data shall include but not be limited to--
       (1) higher risk loans, including loans made in connection 
     with any program to provide expanded loan approvals, shall be 
     reported separately;
       (2) disclose--
       (A) the rate or pace at which such mortgages are becoming 
     seriously delinquent;
       (B) whether such rate or pace is increasing or decreasing;
       (C) if there are certain subsets within the loans covered 
     by this section that have greater or lesser rates or paces of 
     delinquency; and
       (D) if such subsets exist, the characteristics of such 
     subset of mortgages;
       (3) with respect to the loss mitigation efforts of the 
     loan--
       (A) the processes and practices that the reporter has in 
     effect to minimize losses on mortgages covered by this 
     section; and
       (B) the manner and methods by which such processes and 
     practices are being monitored for effectiveness;
       (4) disclose, with respect to loans that are or become 60 
     or more days past due, (provided that for purposes of 
     disclosure under this paragraph that each loan should have a 
     unique number that is not the same as any loan number the 
     borrower, originator, or servicer uses), the following 
     attributes--
       (A) the original loan amount;
       (B) the current loan amount;
       (C) the loan-to-value ratio and combined loan-to-value 
     ratio, both at origination and currently, and the number of 
     liens on the property;
       (D) the property valuation at the time of origination of 
     the loan, and all subsequent property valuations and the date 
     of each valuation;
       (E) each relevant credit score of each borrower obtained at 
     any time in connection with the loan, with the date of the 
     credit score, to the extent allowed by existing law;
       (F) whether the loan has any mortgage or other credit 
     insurance or guarantee;
       (G) the current interest rate on such loan;
       (H) any rate caps and floors if the loan is an adjustable 
     rate mortgage loan;
       (I) the adjustable rate mortgage index or indices for such 
     loan;
       (J) whether the loan is currently past due, and if so how 
     many days such loan is past due;
       (K) the total number of days the loan has been past due at 
     any time;
       (L) whether the loan is subject to a balloon payment;
       (M) the date of each modification of the loan;
       (N) whether any amounts of loan principal has been deferred 
     or written off, and if so, the date and amount of each 
     deferral and the date and amount of each writedown;
       (O) whether the interest rate was changed from a rate that 
     could adjust to a fixed rate, and if so, the period of time 
     for which the rate will be fixed;
       (P) the amount by which the interest rate on the loan was 
     reduced, and for what period of time it was reduced;
       (Q) if the interest rate was reduced or fixed for a period 
     of time less than the remaining loan term, on what dates, and 
     to what rates, could the rate potentially increase in the 
     future;
       (R) whether the loan term was modified, and if so, whether 
     it was extended or shortened, and by what amount of time;
       (S) whether the loan is in the process of foreclosure or 
     similar procedure, whether judicial or otherwise; and
       (T) whether a foreclosure or similar procedure, whether 
     judicial or otherwise, has been completed.
       (c) Guidelines and Regulations.--The Secretary of the 
     Treasury shall establish guidelines and regulations 
     necessary--
       (1) to ensure that the privacy of individual consumers is 
     appropriately protected in the reports under this section;
       (2) to make the data reported under this subsection 
     available on a public website with no cost to access the 
     data, in a consistent format;
       (3) to update the data no less frequently than monthly;
       (4) to establish procedures for disclosing such data to the 
     public on a public website with no cost to access the data; 
     and
       (5) to allow the Secretary to make such deletions as the 
     Secretary may determine to be appropriate to protect any 
     privacy interest of any loan modification applicant, 
     including the deletion or alteration of the applicant's name 
     and identification number.
       (d) Exception.--No data shall have to be disclosed if it 
     voids or violates existing contracts between the Secretary of 
     Treasury

[[Page 10648]]

     and mortgage servicers as part of the Making Home Affordable 
     Program.

  Mr. BEGICH. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. Mr. President, this country has a $13 trillion national 
debt and a record-breaking deficit, and it is time we began to address 
that issue.
  This country has the potential now to transform our energy system 
away from fossil fuel, away from offshore drilling into energy 
efficiency and sustainable energy, and when we do that, we create 
millions of good-paying jobs over a period of years. That is what this 
amendment does.
  Over the last decade, the five 
largest oil companies in America--
ExxonMobil, Chevron, ConocoPhillips, BP, and Shell--made over $750 
billion in profits. These profitable companies do not deserve to 
continue to have major tax breaks that in some cases not only prevent 
them from paying anything in taxes but enable them to get huge tax 
refunds from the IRS.
  What the Sanders-Menendez-Whitehouse-Wyden-Lautenberg amendment would 
do is eliminate three major loopholes. It would bring $35 billion into 
our coffers over a 10-year period. It would use $25 billion of those 
$35 billion for deficit reduction. It would use $10 billion to fund 
energy conservation and sustainable energy and in the process create 
over 100,000 new jobs over a period of years.
  It may make sense to somebody, but it does not make sense to me that 
we have a company such as ExxonMobil, which has been the most 
profitable company in the history of the world, making huge profits and 
last year not only paying nothing in taxes but getting a refund from 
the Treasury of $156 million. Let me repeat that. ExxonMobil, the most 
profitable corporation in the history of the world--year after year, 
huge profits--last year not only paid nothing in taxes but received a 
$156 million check from the taxpayers of this country to help them. 
That is absurd.
  ExxonMobil is not the only company to enjoy that kind of outrageous 
tax treatment. Chevron received a $19 million tax refund; Valero 
Energy, a $157 million refund; and ConocoPhillips received over $450 
million in tax breaks from the oil and gas manufacturing deduction over 
the past 3 years.
  I am going to yield the floor in a moment because I want to refute 
some of what my friend from Oklahoma will be saying.
  Here is what the bottom line is. The bottom line is we have a huge 
deficit and huge tax breaks for profitable corporations. We have the 
opportunity now to do what President Obama put into his 2011 budget and 
eliminate those tax breaks, bring $35 billion more into the Treasury--
$25 billion for deficit reduction and $10 billion to create over 
100,000 new jobs as we make our country more energy efficient and we 
move to sustainable energy.
  With that, I yield the remainder of my time.
  Mr. INHOFE. The Senator is yielding the remainder of is time?
  Mr. SANDERS. I reserve the remainder of my time. I reserve the 
remainder of my time.
  Mr. INHOFE. I thank my friend from Vermont. I know my friend from 
Vermont would not intentionally say something that is not true. 
Sometimes he does not have and sometimes I do not have the actual 
facts, so inadvertently we might misrepresent.
  Let me just say as far as Exxon is concerned that from 2004 to 2008, 
they paid more than $18 billion in U.S. Federal income taxes, and that 
is just some of the taxes they pay.
  I have to say this, though. The whole discussion on this--the Sanders 
bill would effectively put the small and the marginal producers in 
America out of business. Before I go into that in any detail, let me 
just share this. It is interesting, when I listen to liberals talk 
about doing away with drilling, with oil and gas and coal and nuclear--
if you do that, you cannot run this machine called America. Every time 
they talk about doing something to stop production, as they are doing 
right now in the gulf--a lot of these people are using and exploiting 
the tragedy in the gulf to try to retard or stop all production in 
America. Consequently, this is something where we would be in a 
position where we would be so rationed in oil and gas that we would 
have to be more dependent on many of these countries on which we do not 
want to be dependent.
  We did a study. I think this would surprise the Chair. If we didn't 
have any political restrictions on what we could do in North America, 
we could completely eliminate our reliance upon the Middle East for any 
gas or oil within 4 years. That is pretty shocking. Our problem is not 
that we do not have enough oil and gas. We have more reserves than any 
other country. A CRS report came out with that just the other day.
  What I want to do is give my honorable friend a chance to respond to 
my statement, and then I will reserve the remainder of my time to 
discuss in a little more detail how this affects the very small, 
marginal operators in America.
  Mr. SANDERS. I will take just a few minutes now.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. I will reserve the remainder of my time. But let me say 
this to my friend from Oklahoma, who I know is an honest guy. We 
disagree. We have differences of opinion. It was not my suggestion that 
ExxonMobil did not pay taxes over those years. That was not my 
suggestion. But let me say this. He mentioned that they do pay taxes, 
which is true. But let's understand that ExxonMobil was the most 
profitable corporation in the history of the world from 2006 through 
2008, making $40 billion in profits in 2006, $41 billion in 2007, and 
$45 billion in 2008. In the midst of a recession, my understanding is 
they made $19 billion in profits last year.
  Would my friend from Oklahoma deny that despite making these huge 
profits last year, $19 billion, they received--they paid zero in 2009 
and in fact received a $156 million refund from the taxpayers of this 
country? I hope my friend from Oklahoma would comment on whether that 
is good public policy.
  With that, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, I would say first of all, whether that is 
good policy--I think you have to have the accurate input before you 
make a policy determination. The oil and gas industry is very 
complicated. In order for them to go out and risk their capital, they 
have to plow this money back in. Frankly, most of it is plowed back 
into exploration.
  What I wanted to get across, which I think is important, is that the 
Sanders amendment repeals three things--first of all, expensing for 
intangible drilling costs; that is IDC. It repeals percentage depletion 
for marginal oil and gas wells. It repeals the manufacturing deduction 
for oil and gas.
  I predicted a long time ago, when the gulf spill took place, that 
people were going to try to parlay this into something to punish oil 
and gas. This is what they have been trying to do for a long time. It 
could very well be that tonight, when the President makes his big 
speech, he is going to talk about, now we are going to have to look at 
cap and trade, as if there is some relationship between what happened 
in the gulf and cap and trade.
  Repealing expensing of intangible drilling costs eliminates the 
ability to expense intangible drilling and development costs, which 
would force at least a 25- to 30-percent reduction in drilling budgets, 
leading to lost jobs, lost production, and higher prices to consumers. 
On the floor of the Senate yesterday, I spent some time talking about 
how many jobs actually would be lost in the State of Louisiana. But the 
IDC is an expensing-out item that has been in our Tax Code since 1913. 
It really only applies to the smaller operators, so they are the ones 
who are singled out for oil and gas production.
  Likewise, since 1926 small producers and millions of royalty owners 
have had the option to utilize percentage depletion to both simplify 
and account

[[Page 10649]]

for the decline in the value of minerals from a property. As you know, 
they do deplete as you produce minerals.
  Who is going to pay the most for this? I will share with you who pays 
for this, but right now I will yield the floor and reserve the 
remainder of my time.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. Let me say to my friend from Oklahoma, who talked about 
the oil companies plowing their money back into new wells, that the big 
five oil companies spent $270 billion over the past decade buying back 
their own stock--about $100 billion more than they spent on oil 
exploration.
  My friend from Oklahoma talks about jobs. That is obviously an 
important issue. I would concede there may be some job loss here, but 
it is matched by an investment in sustainable energy that will create 
far more employment than the relatively small number of jobs that might 
be lost.
  I would mention Dr. Krueger, the Chief Economist at the Treasury 
Department. He has estimated that repealing these tax breaks would lead 
to a decline in employment in oil and gas production of less than one-
half of 1 percent at most. That translates into the potential loss of 
1,650 jobs in the oil and gas industry. I do not mean to minimize that. 
One job lost is one job too many. But on the other hand, in this bill 
we put $10 billion into the Energy Efficiency and Conservation Block 
Grant Program, where the estimate is we can create 140,000 jobs over 
the same period of time. On one hand, we might lose 1,600 jobs; on the 
other hand, we gain 140,000 jobs.
  With that, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Let me mention one thing I want to make sure I get in 
here before we run out of time. We went through this class warfare once 
back in 1980. We had Jimmy Carter as President of the United States. He 
had the windfall profits tax. I am sure my friend from Vermont 
remembers that at that time. I remember it well. That is when they were 
going to have a windfall profits tax on the oil and gas industry. The 
results of that:

       The WPT reduced domestic production between 3 and 6 percent 
     and increased oil imports from 8 to 16 percent. . . . This 
     made the United States more dependent upon imported oil.

  That is the Congressional Research Service, which is nonpartisan.
  That is a major issue here in terms of our dependence on other 
countries for our ability to run this machine called America.
  Let's get back to the percentage depletion. The percentage depletion 
is particularly important for the production of America's over 600,000 
low-volume marginal wells. The average marginal well produces 2 barrels 
a day.
  Let me tell you what that is so my colleagues, when they get ready to 
vote, will really understand whom they are affecting. A marginal well 
is a well producing under 15 barrels per day. The average is 2 barrels 
a day. My friend is talking about all these big giants. I am not nearly 
as concerned about the big five and the majors as I am about my 
marginal operators in my State of Oklahoma. With an average of 2 
barrels a day, the marginal producers actually account for 28 percent 
of all domestic production in the lower 48 States--28 percent. These 
are all small people.
  If you are concerned also about whom you are affecting by this 
legislation, look at the royalty owners. There are literally millions 
of royalty owners. They have maybe a small piece of property, maybe 
their homestead. They are the ones who would be denied the use of their 
land. By putting the small ones out of business, they are the ones you 
are damaging.
  I will reserve the remainder of my time.
  Mr. SANDERS. Mr. President, how much time does Senator Inhofe have?
  The PRESIDING OFFICER. The Senator from Oklahoma has 1\1/2\ minutes 
and the Senator from Vermont 3 minutes.
  Mr. SANDERS. I have 3 minutes?
  The PRESIDING OFFICER. Yes.
  Mr. SANDERS. Mr. President, what we are talking about now is 
beginning to address the deficit issue in a significant way, and $25 
billion over a 10-year period is a good start. I think we cannot 
continue to have people coming down to the floor of the Senate and 
saying: Think about the legacy we are leaving our children and 
grandchildren. And then when it really comes to the point of doing 
something, of saying to ExxonMobil, which made $19 billion in profit 
last year and got a $156 million refund from the IRS, you can't have it 
both ways, this is a time to stand up and do the right thing. Again, it 
is not just ExxonMobil. It is Chevron, which received a $19 million 
refund from the IRS. It is Valero Energy, the 25th largest company in 
America with $68 billion of sales last year and received a $157 million 
refund check.
  What we have the opportunity to do now is to, in fact, address the 
deficit crisis--$25 billion over a 10-year period; create over 100,000 
new jobs over that period as we move into energy efficiency and 
sustainable energy.
  With that, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Let me correct this again. I had already stated that the 
statement my good friend from Vermont made was a false statement, 
inadvertently, in terms of Exxon and what they had paid. I commented 
that they paid more than $18 billion in the years between 2004 and 
2008. He returned and said in 2009 is when they have not paid any. They 
have already paid $\1/2\ billion in 2009 in U.S. Federal income tax, 
and they will not know the final liability until they file a return 
later this year. So they are still doing it. The information that my 
good friend has is false.
  Getting back to the bill and who this affects, it doesn't affect 
Exxon, BP, and all these giant companies. It is the small producers 
that will be driven out of business. Without being able to do the 
deduction of the expenses on manufacturing, if this bill passes, this 
is going to single out the oil and gas industry, the only industry that 
does not enjoy the same deductions. They are punitive to this industry 
because right now it is quite obvious they are trying to exploit the 
tragedy in the gulf.
  It is my understanding I have a minute and a half remaining.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. INHOFE. I am timing it. It can't be expired.
  The PRESIDING OFFICER. The Senator had a minute and a half when he 
started this segment.
  Mr. INHOFE. Since my colleague has the last say, may I have 30 
seconds to finish? I was going to respond to the comment about the 
deficit. We ought to be concerned. I am concerned about the deficit. 
What is interesting about this debate, I am ranked by the National 
Journal as the most conservative Member of the Senate. I suggest my 
proud liberal friend from Vermont is probably on the other end of the 
spectrum.
  If we look at who is responsible for deficit spending, I think 
Members will find he would be more responsible than I would. I thank 
the Senator for the additional 30 seconds.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. I am not a liberal but a progressive. Sometime we will 
talk about the difference.
  Mr. President, I did not vote for the $3 trillion war in Iraq. I did 
not vote for the hundreds of billions of dollars in tax breaks. I did 
not vote for the Medicare Part D Program which drove up the deficit 
altogether as a matter of fact. I suspect my friend may have voted the 
other way on all of those issues which were not paid for.
  In terms of ExxonMobil, let's be clear. I don't know what ExxonMobil 
told my colleague, but I ask unanimous consent to have printed in the 
Record what ExxonMobil told the Securities and Exchange Commission, the 
SEC. What is reported by the SEC for 2009 is they received a $156 
million refund. That is the SEC.
  I ask unanimous consent to have this printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 10650]]



            United States Securities and Exchange Commission

      Form 10-K--Annual Report Pursuant to Section 13 or 15(d) of 
                  the Securities Exchange Act of 1934

                                   NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--18. INCOME, SALES-BASED AND OTHER TAXES
                                                                  [Millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      2009                                   2008                                   2007
                                    --------------------------------------------------------------------------------------------------------------------
                                         U.S.       Non-U.S.      Total         U.S.       Non-U.S.      Total         U.S.       Non-U.S.      Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Income taxes:
  Federal and non-U.S.:
    Current........................      $ (838)      $15,830      $14,992       $3,005      $31,377      $34,382       $4,666      $24,329      $28,955
    Deferred--net..................          650        (665)         (15)          168        1,289        1,457        (439)          415         (24)
  U.S. tax on non-U.S. operations..           32  ...........           32          230  ...........          230          263  ...........          263
    Total federal and non-U.S......        (156)       15,165       15,009        3,403       32,666       36,069        4,490       24,744       29,234
  State............................          110  ...........          110          461  ...........          461          630  ...........          630
    Total income taxes.............         (46)       15,165       15,119        3,864       32,666       36,530        5,120       24,744       29,864
  Sales-based taxes................        6,271       19,665       25,936        6,646       27,862       34,508        7,154       24,574       31,728
All other taxes and duties:
  Other taxes and duties...........          581       34,238       34,819        1,663       40,056       41,719        1,008       39,945       40,953
  Included in production and                 699        1,318        2,017          915        1,720        2,635          825        1,445        2,270
   manufacturing expenses..........
  Included in SG&A expenses........          197          538          735          209          660          869          215          653          868
    Total other taxes and duties...        1,477       36,094       37,571        2,787       42,436       45,223        2,048       42,043       44,091
      Total........................       $7,702      $70,924      $78,626      $13,297     $102,964     $116,261      $14,322      $91,361     $105,683
--------------------------------------------------------------------------------------------------------------------------------------------------------
All other taxes and duties include taxes reported in production and manufacturing and selling, general and administrative (SG&A) expenses. The above
  provisions for deferred income taxes include net credits for the effect of changes in tax laws and rates of $9 million in 2009, $300 million in 2008
  and $258 million in 2007.

  Mr. INHOFE. Will the Senator yield for a question?
  Mr. SANDERS. Allow me to finish my remarks. This is where we are. 
Where we are right now is a moment at which we either go forward or 
not, be serious or not. We hear day after day concerns about the 
deficit. What we know is the oil industry, year after year, has been 
enormously profitable. We know in 2009 a number of oil companies, 
including ExxonMobil, did not pay any taxes. Let's do something about 
it. Let's pass this amendment.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Louisiana.


                           Amendment No. 4312

  Mr. VITTER. Mr. President, I stand in strong support of my amendment 
No. 4312. I urge all colleagues, Democrats and Republicans, to come 
together to pass this commonsense amendment.
  What is this amendment about? It is about something that is of great 
concern to me, representing the State of Louisiana. It is about the Oil 
Spill Liability Trust Fund. It is about the ongoing crisis in the gulf. 
I am afraid what it is about is an example of that now famous quote of 
the White House Chief of Staff, Rahm Emanuel, who, around February 
2009, said: We are not going to let a good crisis go to waste. He was 
talking about the financial crisis. I am afraid that same attitude, 
that same politicization of real crises is going on with the ongoing 
oil disaster in the gulf.
  This is a real crisis, an ongoing crisis, an ongoing disaster. The 
flow continues. It is so significant--even subtracting out the amount 
of oil BP is capturing, it is so significant that it is like a whole 
new major oilspill each and every day. It goes on and on and on.
  What is the provision in this bill in relation to that crisis? In 
this bill there is a dramatic increase in the tax to fund the Oil Spill 
Liability Trust Fund from 8 cents per barrel to 41 cents, over a 
fivefold increase. If that were going into that liability trust fund, 
and if it were staying there for oil cleanup, we could come together 
and probably support that effort in a bipartisan way. But instead, what 
has happened?
  As soon as all of that new revenue goes into the trust fund, $15 
billion over 10 years, it is stolen. It is spent on unrelated spending. 
It isn't a true trust fund. It is spent on other government deficit 
spending. It is used essentially to hide deficit spending elsewhere. It 
is double counting, what I call Enron accounting. If a private company 
were doing this and putting this in their prospectus, putting this in 
their SEC reports, they would be prosecuted for criminal fraud.
  My amendment is simple. It says two things: Anything that goes into 
the Oil Spill Liability Trust Fund can only be used to clean up 
oilspills. Pretty basic, pretty simple. Secondly, it cannot be double 
counted, used as an offset for other unrelated government deficit 
spending. That is pretty simple. I think it is a minimum requirement we 
should ask in the midst of this ongoing crisis in the gulf.
  Again, are we going to treat that as a real crisis and address the 
challenge that is there or are we going to use and abuse that crisis in 
Washington to advance preexisting agendas such as big government 
spending, additional deficit, trying to mask and hide those? I suggest 
the only responsible thing to do is to treat the crisis for what it is, 
to respect the people of the gulf and to pass this Vitter amendment 
that says, No. 1, money into that trust fund can only be used to clean 
up oilspills; and, No. 2, it cannot be double counted to mask other 
deficit spending.
  I reserve the remainder of my time.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from Minnesota.


                           Amendment No. 4311

  Mr. FRANKEN. Mr. President, I rise to tell a very important story. 
Some of my colleagues have heard me talk previously about a woman named 
Tecora, a homeowner from south Minneapolis who is at risk of losing her 
home. Back in 2005, Tecora was looking for a mortgage and said she 
asked her bank for a conventional mortgage with fixed payments. 
Presented with a series of options, she unsurprisingly chose the 
cheapest one. Yet the simple option got her an exotic mortgage called 
an option ARM or an adjustable rate mortgage. Now her monthly payments 
have doubled over time and Tecora now owes $317,000 on a $288,000 loan.
  During the housing bust and paying double what she was initially 
paying on her mortgage, Tecora started having trouble with her 
payments. Hoping to save her home, Tecora entered President Obama's 
HAMP program which is intended for people who want to avoid 
foreclosure.
  One day, however, her mortgage servicer informed her that her file 
was closed because she ``voluntarily left the HAMP program.'' Here is 
the problem. She didn't. She never did. Tecora never asked that her 
file be closed. She never tried to leave the program. Now every day she 
worries anew about losing her home simply because her servicer made a 
mistake. Tecora worked hard her whole life, but now she looks to the 
future in fear.
  ``I'm squeaking by,'' she told the Minneapolis Star Tribune, ``by the 
plaque on my teeth.''
  As USA TODAY reported in March, these kinds of problems happen all 
too frequently. In an article entitled ``Homes Can Be Lost by Mistake 
When Banks Miscommunicate''--a headline that says exactly what it 
sounds like: homes can be lost by mistake when banks miscommunicate--
the author detailed a pattern of bank errors within HAMP that have led 
to people losing their homes or almost losing their homes. It should 
not have to be this way. That is why I have offered an amendment with 
Senators Snowe and

[[Page 10651]]

Murray, amendment No. 4311, to create an Office of the Homeowner 
Advocate for people who are struggling with problems in the HAMP 
program.
  This amendment is currently pending to the tax extenders bill. The 
tax extenders bill aims to help people who are suffering during this 
economic crisis. It includes extensions of unemployment insurance for 
people who have lost their job during the recession. It promotes 
American jobs by continuing the small business lending program which 
has helped create or retain over 650,000 jobs since its creation. It 
includes money for the national housing trust fund which will create 
jobs and help ensure people have affordable places to live.
  Our Office of the Homeowner Advocate would continue this effort to 
provide a safety net to people who are struggling economically. In 
particular, it would help one of the groups of people who have suffered 
the most during the recession--homeowners. Our Office of the Homeowner 
Advocate is modeled after the very successful Office of the Taxpayer 
Advocate at the IRS. It would ensure that homeowners participating in 
the HAMP program know that someone is on their side, someone with the 
authority to actually fix the mistakes created by mortgage servicers 
participating in HAMP. When homeowners call this office with concerns, 
the office has two important powers. First, it can make sure servicers 
actually obey the rules of the program or suffer the consequences. 
Second, it ensures that the bank would not be able to sell people's 
homes right away, giving the homeowner advocate time to actually solve 
the problem. The office is temporary, lasting only as long as HAMP 
does. But while it lasts, it ensures that homeowners would not be 
losing their homes because of simple errors.
  This amendment is supported by the Treasury Department. When we first 
filed the amendment to the Wall Street reform bill, the White House 
declared it one of the top 10 amendments that would improve the Wall 
Street reform bill. Unfortunately, the amendment didn't receive a vote. 
So we are bringing it to the Senate once again to ensure that 
homeowners in all of our States have the protections they need.
  The amendment is supported by consumer groups from around the 
country, ranging from Americans for Financial Reform to Consumers 
Union, SEIU, and the National Council of La Raza. It is also supported 
by the superintendent of the New York State banking system, who calls 
it a big step forward for homeowners.
  Significantly, Congress will not have to authorize any additional 
appropriations for this amendment. Let me say that again: Congress will 
not have to authorize any additional appropriations for this amendment. 
The office would be funded entirely by existing HAMP administrative 
funds. I am going to say it again. We will be helping homeowners 
without authorizing any new money at all--nothing, zero, zip.
  I was pleased to work with Senator Vitter, who just spoke, to make 
this amendment even stronger by ensuring that no homeowner can game the 
system and still participate in HAMP, and also by increasing the 
transparency of the program. These two changes are incorporated in this 
modification to our amendment, which also incorporates some changes 
suggested by Senator Shelby to ensure that the Homeowner Advocate 
process does not overly delay appropriate foreclosures.
  I hope my colleagues see that the Homeowner Advocate is an easy way 
to help homeowners in all our hometowns--in Minnesota, in Arkansas, all 
over this country--get the protections they need to keep their homes. 
Let's adopt this amendment and stand up for homeowners everywhere in 
this country.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Montana.


                           Amendment No. 4312

  Mr. BAUCUS. Mr. President, I wish to speak in opposition to the 
Vitter amendment.
  The Senator from Louisiana is essentially offering an amendment which 
has the effect of preventing the oilspill liability tax from going into 
effect. This is a head-scratching amendment. Why in the world would any 
Senator suggest there be no increase in the oilspill liability tax?
  Right now, beginning in about--let's see, what year was it?--1990, 
Congress, in the wake of the Exxon Valdez oilspill, enacted an Oil 
Spill Liability Trust Fund and oilspill liability tax, obviously, to 
pay for potential or future oilspills. The tax was set at 5 cents a 
barrel. In the 20 years since that time, the tax has been increased 
just 3 cents to 8 cents a barrel. At the same time, the price of oil 
has increased, since 1990, from the neighborhood of $20 a barrel to $72 
a barrel today. Within the last 2 years, oil has been as high as $147 a 
barrel.
  So with the increased evidence of the damage oilspills can create, 
and with the increased price of oil, we thought it was an appropriate 
time to raise the oilspill liability tax on oil companies to help pay 
for future spills. That is why we are doing this. In this bill, we 
propose to raise that tax to 41 cents a barrel. That is a very modest 
increase, where today oil in the market is roughly $72 a barrel.
  You hear this argument--it is not even an argument. It is like Alice 
in Wonderland stuff. I do not know where this stuff comes from. It is 
Alice in Wonderland stuff, that somehow we should not do this because 
it is double counting or something like that. The money that is raised 
from the oilspill liability tax goes to the Oil Spill Liability Trust 
Find. And our Federal Government has a cash flow system of accounting, 
so by definition we will start to lower the budget deficit. That is not 
double counting. That is just the way it works.
  It sounds as though the Senator from Louisiana either does not want 
to lower the budget deficit or he does not want to increase the tax on 
oil companies from 8 cents a barrel, which is so small. The fact is, 
what he is doing is saying this: He is saying that the Budget Office, 
for budget purposes, cannot count the oilspill liability tax to reduce 
the budget deficit. So, in effect, what he is saying is, there is no 
oilspill liability tax. What he is saying is the taxpayers should pay 
for the cleanup, not the oil companies. That is basically what he is 
saying. He is basically saying--by putting the kibosh on the Oil Spill 
Liability Trust Fund and the revenue coming from it--that he wants to 
protect the oil companies, protect the oil companies from any increase 
in the taxes from 8 cents a barrel up to 41 cents a barrel and, rather, 
have the taxpayers pay for the cleanup, not the oil companies that 
would pay the increase in the oilspill liability tax but the taxpayers.
  I do not think that is what the vast majority of Americans wish to 
see. I think that is over the top and I, therefore, urge my colleagues 
to roundly defeat the amendment from the Senator from Louisiana who, in 
effect, does not want the oilspill liability tax increased and, in 
effect, is saying, taxpayers, pay for the cleanup, not the oil 
companies.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 5 minutes 43 seconds--all on 
this amendment.
  Mr. VITTER. Mr. President, it is a little difficult to know where to 
start, since my good friend and colleague has said so many things that 
are flat out wrong.
  No. 1, my amendment does not prevent the tax increase. That is 
absolutely and perfectly clear. Let me say it again. My amendment does 
not block and does not prevent the tax increase.
  No. 2, my amendment does do two things. It says that any money in the 
Oil Spill Liability Trust Fund can only be used for oilspill cleanup 
and, secondly, that it cannot be used to offset other spending. That is 
exactly what is going on in this bill.
  My colleague knows that the $15 billion created by this tax increase 
is used as an offset in this bill. It masks spending in this bill of 
$15 billion. If it were

[[Page 10652]]

not for that money, the ``score'' of this bill would be $15 billion 
higher. It would go from $79 billion to $94 billion.
  What I am saying is simple. We should not be grabbing, stealing that 
oilspill liability money to mask other spending, to double count it, to 
essentially steal it from the trust fund.
  Again, my amendment does not prohibit the tax increase. By the way, 
if my colleague thinks the oil companies are paying that tax, not the 
consumer, I do not think he understands how the world works. But my 
amendment does not block that tax increase. It simply says money in the 
Oil Spill Liability Trust Fund has to be used for oilspill cleanup, and 
it cannot be used as an offset, cannot be double counted for other 
spending, as it is clearly in this bill.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. VITTER. Mr. President, if everyone else is amenable, I am 
prepared to yield back--if everyone else is yielding back.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I believe there is a Senator who might 
want to speak on this amendment. We are tracking him down right now. So 
I suggest we do not yield back the remainder of our time.
  Mr. VITTER. Then, Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. VITTER. 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. VITTER. Mr. President, I want to ensure that the quorum call does 
not run down my time.
  The PRESIDING OFFICER. The Senator would like the time divided 
evenly?
  Mr. VITTER. Yes, that would be my request, Mr. President.
  The PRESIDING OFFICER. Without objection, it is so ordered, on this 
amendment.
  Mr. VITTER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. VITTER. 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. VITTER. Mr. President, I ask unanimous consent that all time on 
all amendments be yielded back. I believe that is amenable to everyone.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Louisiana.


                       Vote On Amendment No. 4318

  Mr. VITTER. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the Sanders amendment No. 4318.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from South Dakota (Mr. Johnson) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Florida (Mr. LeMieux) and the Senator from Kansas (Mr. Roberts).
  The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 35, nays 61, as follows:

                      [Rollcall Vote No. 187 Leg.]

                                YEAS--35

     Boxer
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Harkin
     Kaufman
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Whitehouse
     Wyden

                                NAYS--61

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Brown (MA)
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hagan
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Kerry
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lugar
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Risch
     Sessions
     Shelby
     Snowe
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Wicker

                             NOT VOTING--4

     Byrd
     Johnson
     LeMieux
     Roberts
  The PRESIDING OFFICER. On this vote, the yeas are 35, the nays are 
61. Under the previous order, requiring 60 votes for the adoption of 
this amendment, the amendment is withdrawn.
  Mr. SPECTER. Madam President, I voted for the Sanders amendment on 
tax incentives for oil and natural gas production to H.R. 4213, the Tax 
Extenders Act.
  Pennsylvania is in the midst of a historic boom in natural gas 
production from the Marcellus Shale formation. This industry is on 
track to create hundreds of thousands of jobs in the Commonwealth, and 
billions of dollars in revenue, both of which are badly needed in my 
home State. But the development of one natural resource must proceed 
with the utmost care for two others: water and land. I know that the 
natural gas industry desires to maintain the tax incentives which would 
be removed by the Sanders amendment. President Obama has also proposed 
removing these tax incentives in his fiscal year 2011 budget proposal. 
However, I cannot support further incentives for natural gas until that 
industry agrees to full public disclosure of the chemical composition 
of its hydraulic fracturing fluids, which are used to break apart the 
shale deep underground and initiate the gas flow. There is placeholder 
language to this effect in the discussion draft of the Kerry-Lieberman 
American Power Act, and I hope that natural gas companies large and 
small will support these provisions as the bill, or another energy 
bill, moves forward into law. There are many issues that the natural 
gas industry must cooperate with the Commonwealth of Pennsylvania on, 
including hydraulic fracturing disclosure, wastewater recycling, 
responsible well development, and a severance tax. My support for 
incentives for natural gas will remain contingent on that industry 
demonstrating its commitment to developing the Marcellus Shale in a 
manner that all Pennsylvanians will look back on, generations from now, 
with pride.
  Mr. GRASSLEY. Madam President, I opposed the amendment of my friend 
from Vermont. Although I understand his frustration and his intentions, 
I could not agree with the effects of the amendment. Over the years, as 
chairman and ranking member of the Finance Committee, I have supported 
policy reforms in taxation of oil and gas income. Many times, the major 
oil firms have registered their objections. Also, in the area of 
corporate taxation, I pushed hard to curtail a practice that oil firms 
used to erode the U.S. tax base. That practice, known as corporate 
inversions, was curtailed in the 2004 FSC-ETI legislation.
  I re-doubled my efforts to make the reform applicable to four oil 
service firms but was rebuffed by the House of Representatives' 
leadership in the years 2004-2007.
  Chairman Baucus and I have been careful to not impair tax incentives 
for independent, smaller producer oil and gas production. We have 
differentiated the availability of these incentives for smaller 
producers and made clear that major oil and gas producers did not 
receive many of these incentives.
  The amendment of my friend from Vermont blurs that line and would 
adversely affect domestic production. We need to ensure an adequate 
supply of domestic oil and gas to keep the price

[[Page 10653]]

at the pump down. Together with incentives for alternative fuels, line 
ethanol and biodiesel, and conservation, these small producer 
incentives with hopefully reduce our reliance on imported oil. Chairman 
Baucus joins me in this view.
  For these reasons, I opposed the amendment of my friend from Vermont.
  Mr. CONRAD. Madam President, section 302(a) of S. Con. Res. 13, the 
2010 budget resolution, permits the chairman of the Senate Budget 
Committee to adjust the allocations of a committee or committees, 
aggregates, and other appropriate levels and limits in the resolution 
for legislation that invests in clean energy and preserves the 
environment, including legislation that encourages conservation and 
efficiency. This adjustment to S. Con. Res. 13 is contingent on the 
legislation not increasing the deficit over either the period of the 
total of fiscal years 2009 through 2014 or the period of the total of 
fiscal years 2009 through 2019.
  I find that Senate amendment No. 4318, an amendment offered by 
Senator Sanders to Senate amendment No. 4301, an amendment in the 
nature of a substitute to H.R. 4213, fulfills the conditions of the 
deficit-neutral reserve fund to invest in clean energy and preserve the 
environment. Therefore, pursuant to section 302(a), I am adjusting the 
aggregates in the 2010 budget resolution, as well as the allocation to 
the Senate Finance Committee.
  I ask unanimous consent that the following revisions to S. Con. Res. 
13 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


CONCURRENT RESOLUTION ON THE BUDGET FOR FISCAL YEAR 2010--S. CON. RES. 
 13; FURTHER REVISIONS TO THE CONFERENCE AGREEMENT PURSUANT TO SECTION 
   302(a) DEFICIT-NEUTRAL RESERVE FUND TO INVEST IN CLEAN ENERGY AND 
                        PRESERVE THE ENVIRONMENT

                        [In billions of dollars]

        Section 101
(1)(A) Federal Revenues:
    FY 2009...................................................1,532.579
    FY 2010...................................................1,612.278
    FY 2011...................................................1,942.056
    FY 2012...................................................2,146.937
    FY 2013...................................................2,329.824
    FY 2014...................................................2,579.743
(1)(B) Change in Federal Revenues:
    FY 2009.......................................................0.008
    FY 2010.....................................................-53.708
    FY 2011....................................................-146.575
    FY 2012....................................................-213.456
    FY 2013....................................................-185.513
    FY 2014.....................................................-53.915
(2) New Budget Authority:
    FY 2009...................................................3,675.736
    FY 2010...................................................2,907.837
    FY 2011...................................................2,860.866
    FY 2012...................................................2,833.668
    FY 2013...................................................2,993.128
    FY 2014...................................................3,206.977
(3) Budget Outlays:
    FY 2009...................................................3,358.952
    FY 2010...................................................3,015.541
    FY 2011...................................................2,976.851
    FY 2012...................................................2,879.495
    FY 2013...................................................2,993.782
3,183.027............................................................
                                  ____



CONCURRENT RESOLUTION ON THE BUDGET FOR FISCAL YEAR 2010--S. CON. RES. 
 13; FURTHER REVISIONS TO THE CONFERENCE AGREEMENT PURSUANT TO SECTION 
   302(a) DEFICIT-NEUTRAL RESERVE FUND TO INVEST IN CLEAN ENERGY AND 
                        PRESERVE THE ENVIRONMENT

                        [In millions of dollars]

Current Allocation to Senate Finance Committee:
    FY 2009 Budget Authority..................................1,178,757
     FY2009 Outlays...........................................1,166,970
    FY 2010 Budget Authority..................................1,247,336
    FY 2010 Outlays...........................................1,241,472
    FY 2010-2014 Budget Authority.............................6,865,787
    FY 2010-2014 Outlays......................................6,840,905
Adjustments:
    FY 2009 Budget Authority..........................................0
    FY 2009 Outlays...................................................0
    FY 2010 Budget Authority..........................................0
    FY 2010 Outlays...................................................0
    FY 2010-2014 Budget Authority.................................8,000
    FY 2010-2014 Outlays..........................................4,830
Revised Allocation to Senate Finance Committee:
    FY 2009 Budget Authority..................................1,178,757
    FY 2009 Outlays...........................................1,166,970
    FY 2010 Budget Authority..................................1,247,336
    FY 2010 Outlays...........................................1,241,472
    FY 2010-2014 Budget Authority.............................6,873,787
    FY 2010-2014 Outlays......................................6,845,735


                           Amendment No. 4312

  The PRESIDING OFFICER. There is 2 minutes of debate, evenly divided, 
prior to a vote in relation to the Vitter amendment No. 4312. Who 
yields time?
  The Senator from Montana is recognized.
  Mr. BAUCUS. Madam President, I don't see the proponent of the 
amendment on the Senate floor.
  There he comes.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. VITTER. Madam President, I urge support for the Vitter amendment. 
It does two very simple things: It says any money coming into the Oil 
Spill Liability Trust Fund can only be used to clean up oilspills. It 
also says the money cannot be used as an offset for unrelated spending, 
as it is in this bill. It cannot be used to mask other deficit spending 
or as an offset for unrelated spending.
  The amendment specifically does not negate or block the tax increase 
of funds into the Oil Spill Liability Trust Fund.
  I reserve the reminder of my time.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Madam President, this amendment is sheer sophistry. The 
effect of his amendment will say that not oil companies but the 
taxpayers will pay for cleanups.
  The effect of this amendment would mean no increase in oilspill 
liability tax from 8 cents a barrel today up to 41 cents. If there is 
no increase in the spill liability tax, oil companies aren't going to 
pay for future cleanups, the taxpayers will. He has this--I said 
``sophistry.'' So it is a sophistry kind of argument. It is fog and 
double counting and bead counting. That is not what is going on here.
  The bottom line is this amendment has the effect of taxpayers paying 
for the cleanup, not the oil companies. This will effectively repeal 
the increase up to 41 cents per barrel. I urge Senators to not support 
this amendment.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Madam President, how much time remains?
  The PRESIDING OFFICER. There is 21 seconds remaining.
  Mr. VITTER. My good friend and colleague's argument is not sophistry, 
it is just statements that are not true. This amendment does not block 
the tax increase, period. It does not. It simply says the money has to 
be used to clean up oil spills, and it cannot be used as an offset for 
other spending. Please support this amendment.
  The PRESIDING OFFICER. The time has expired on the amendment.
  Mr. VITTER. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The bill clerk called the roll.
  Mr. DURBIN, I announce that the Senator from West Virginia (Mr. Byrd) 
is necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Florida (Mr. LeMieux) and the Senator from Kansas (Mr. Roberts).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 48, nays 49, as follows:

                      [Rollcall Vote No. 188 Leg.]

                                YEAS--48

     Alexander
     Barrasso
     Begich
     Bennett
     Bond
     Brown (MA)
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dorgan
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hagan
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Landrieu
     Lieberman
     Lugar
     McCain
     McConnell
     Merkley
     Murkowski
     Nelson (NE)
     Nelson (FL)
     Risch
     Sessions

[[Page 10654]]


     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                                NAYS--49

     Akaka
     Baucus
     Bayh
     Bennet
     Bingaman
     Boxer
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Dodd
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--3

     Byrd
     LeMieux
     Roberts
  The PRESIDING OFFICER. On this vote, the yeas are 48, the nays are 
49. Under the previous order requiring 60 votes for the adoption of 
this amendment, the amendment is withdrawn.


                            vote explanation

  Mr. SPECTER. Madam President, I voted against the Vitter amendment on 
the Oil Spill Liability Trust Fund to H.R. 4213, the Tax Extenders Act, 
because no matter what the size of the trust fund, the party 
responsible for an oil spill must pay all costs of its cleanup, and is 
also responsible for economic damages caused by the spill. This 
amendment will not reduce in any way the available resources for 
combating the spill in the gulf, or any other future spill. The moneys 
in the Oil Spill Liability Trust Fund may be used to advance cleanup 
costs but that does not relieve British Petroleum as the primarily 
liable party for paying the full costs of the gulf spill cleanup which 
will reimburse the trust fund for any funds expended.


                           Amendment No. 4311

  The PRESIDING OFFICER. There will now be 2 minutes evenly divided 
prior to a vote in relation to the Franken amendment No. 4311.
  Who yields time?
  The Senator from Minnesota.
  Mr. FRANKEN. Madam President, let me tell you about this amendment. 
It comes from me and Senator Snowe, and it would create the Office of 
the Homeowner Advocate within HAMP. It is needed because people don't 
really have an advocate within HAMP. They get their questions answered 
from servicers who often make mistakes, and people have been losing 
their homes simply because of mistakes.
  The White House called this one of the 10 best amendments for the 
Wall Street reform bill. It didn't get a vote then. It costs nothing. 
No new money. It costs absolutely nothing. Senator Vitter weighed in 
and made it better by having me put in something about people who can 
afford their mortgage can't participate in HAMP, and it removes 
language that would delay foreclosures.
  I urge all my colleagues to vote--that was telling me I was out of 
time?
  The PRESIDING OFFICER. Order in the Chamber.
  Mr. FRANKEN. Oh, it was order in the Chamber.
  In that case, I will also say that it will make data public. Also, 
Senator Vitter and Senator Shelby weighed in on this and made it 
better. So it is safe for Members on both sides of the aisle to vote 
for this.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. FRANKEN. Thank you.
  The PRESIDING OFFICER. Who yields time in opposition.
  Mr. SHELBY. I yield back time, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer) 
and the Senator from West Virginia (Mr. Byrd) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Florida (Mr. LeMieux) and the Senator from Kansas (Mr. Roberts).
  The PRESIDING OFFICER (Mr. Udall of Colorado). Are there any other 
Senators in the Chamber desiring to vote?
  The result was announced--yeas 63, nays 33, as follows:

                      [Rollcall Vote No. 189 Leg.]

                                YEAS--63

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

                                NAYS--33

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Chambliss
     Coburn
     Cochran
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Lugar
     McCain
     McConnell
     Nelson (NE)
     Risch
     Sessions
     Shelby
     Thune
     Voinovich
     Wicker

                             NOT VOTING--4

     Boxer
     Byrd
     LeMieux
     Roberts
  The PRESIDING OFFICER. On this vote, the yeas are 63, the nays are 
33. Under the previous order requiring 60 votes for the adoption of 
this amendment, the amendment is agreed to.
  The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent to speak 9 
minutes as in morning business.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________