[Congressional Record (Bound Edition), Volume 157 (2011), Part 14]
[Senate]
[Pages 19193-19209]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          LEGISLATIVE SESSION

                                 ______
                                 

          MIDDLE CLASS TAX CUT ACT OF 2011--MOTION TO PROCEED

  The PRESIDING OFFICER (Mr. Bingaman).  Under the previous order, the 
Senate will resume legislative session and the motion to proceed to S. 
1944, which the clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to the bill (S. 1944) to create jobs by 
     providing payroll tax relief for middle-class families and 
     businesses, and for other purposes.

  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. LEE. I ask unanimous consent to enter into a colloquy with my 
Republican colleagues for up to 30 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEE. Mr. President, I stand today to urge my colleagues to 
support efforts to bring forward a balanced budget amendment, one that 
can be passed out of both Houses of Congress and submitted to the 
States for ratification.
  Article V of the Constitution gives us the power to change the 
Constitution from time to time, to modify our laws, that 224-year-old 
document that has fostered the development of the greatest civilization 
the world has ever known.
  We have done this 27 times. We have done it at times in order to 
protect and preserve the Nation our ancestors fought so valiantly to 
create and later again to defend. We have to modify our government, the 
manner in which we do business, in order to preserve that system, in 
order to make it strong, in order to ensure that it will continue to be 
strong for future generations.
  We made it stronger when, for example, we added the Bill of Rights 
shortly after the ratification of the Constitution. We made it stronger 
again when, for example, we added the so-called Civil War amendments, 
amendments XIII, XIV, and XV, ending slavery and the badges and 
incidents thereof. We made it stronger when we made clear that women 
must always be given the right to vote. We have made it stronger a 
number of times. And the time to make it stronger has come yet again.
  It is time to modify the Constitution to limit--to restrict--
Congress's current power granted by article I, section 8, clause 2 of 
the Constitution to borrow money on credit of the United States. The 
reason we need to do this is because this power has been so severely 
abused over such a prolonged period of time that it is causing 
devastating consequences for our economy and for our ability to fund 
the operations of the government.
  We have now accumulated over $15 trillion in debt as a country. That 
works out to about $50,000 for every man, woman, and child in America. 
It works out, arguably, to about $120,000 to $150,000 for every 
taxpayer in America. This is lot of money. It also represents between 
90 and 100 percent of our gross domestic product annually, depending on 
whose statistics you follow. This is troubling, given that there is an 
abundant amount of research indicating that once a country's sovereign 
debt-to-GDP ratio crosses the significant 90-percent threshold--which 
we have now done--economic growth tends to slow, tends to slow to a 
point that an economy as large as ours can expect to lose as many as 1 
million jobs a year. We can't afford to lose jobs, especially when we 
know one of the major causes is our national debt. It is time we change 
the way we do business. It is time to change the manner in which 
Congress acquires new debt.
  This is no longer an issue that is either Republican or Democrat, 
that is either liberal or conservative. It is simply American. I remind 
my colleagues, whether you are concerned on the one hand about 
preserving America's leading edge, its ability to fund its national 
defense program or, on the other hand, if you are most concerned about 
funding our entitlement programs, you should want a balanced budget 
amendment because this is what we need to do, this is what we have to 
do in order to protect our ability to fund both of those things and 
everything else we do, you see, because by the end of this decade, 
according to the White House's own numbers, we will be paying close to 
$1 trillion every year to pay the interest on our national debt. Just 
the interest alone. We are currently spending a little over $200 
billion a year on interest--still a lot of money but about $800 billion 
lower than what we are likely to be spending by the end of this decade.
  Where will that additional $800 billion every single year come from? 
This isn't a discretionary sum. This is money we have to pay. It is the 
first thing we have to pay. Where will that $800 billion difference be 
made up? At that point, we can't expect simply to raise taxes to make 
up that difference. I am not aware of any tax increase plan that could 
bring in that much additional revenue every year, without stagnating 
our economy to the point

[[Page 19194]]

that we might, within 1 year or 2 years, bring in less revenue rather 
than more--certainly not $800 billion more. Nor am I aware of any plan 
whereby we could simply borrow an additional $800 billion to pay that 
interest, because doing so, of course, would cause our interest rates 
to skyrocket, grow out of control, and our interest payments would be 
even more significant at that point, thus further impairing our ability 
to fund everything from defense to entitlements. So at that point, the 
only option on the table would be dramatic, severe, abrupt, even 
Draconian cuts to everything from defense to entitlements and 
everything in between. We don't want this. There is a better way. And 
the better way forward consists of a severe permanent structural 
spending reform that can be achieved only through a balanced budget 
amendment.
  Let me explain what I mean by that. And, more importantly, let me 
explain what I don't mean by that.
  We have to be aware of things that masquerade as balanced budget 
amendments, things that will actually do the job instead of purporting 
to do the job, distracting the public's attention away from the need to 
do this while in effect doing nothing. We need to be aware of what I 
sometimes call the Trojan horse balanced budget amendment proposal.
  There are a few hallmarks of what a real, effective balanced budget 
amendment would accomplish. First and foremost, it has to apply to all 
spending in requiring Congress to provide a supermajority vote for any 
borrowing authority. There are some who have suggested we should have a 
balanced budget amendment that exempts certain categories of 
entitlement spending. But, of course, as we all know, it is entitlement 
spending that continues to consume a larger and larger share of our 
national budget each and every year. It is entitlement spending that is 
anticipated to have shortfalls for sums that will have to be expended 
for Americans alive today. It could range anywhere from $50- to $60- to 
$110 trillion in unfunded entitlement liabilities. So simply exempting 
entire categories of entitlements is one of these hallmarks of a Trojan 
horse balanced budget amendment. We can't do that. We need it to apply 
to all Federal outlays, all Federal spending.
  Second, an effective balanced budget amendment must cap spending at 
the average historic level of Federal revenue. Over the last 40 years, 
our average take, our average income as a percentage of GDP, has been 
about 18 to 18.5 percent of our gross domestic product. We need to make 
sure we are not spending more than that; that Congress can't, without a 
supermajority vote, spend more than 18 percent of GDP in any given 
year. Otherwise, we run the risk that Congress will find a way through 
tricky accounting schemes to circumvent the restrictions to make sure 
it is not spending more than it takes in.
  Third, the supermajority requirement must apply to the folks in both 
Houses of Congress every time Congress wants to spend more than it 
takes in. Any balanced budget amendment proposal that allows for a 
simple majority to bring about an exception to these spending 
limitations is one that Congress can and will use to circumvent the 
amendment entirely. Let me explain what I mean.
  We have had in the past certain statutory legislative limitations on 
Congress's spending and borrowing power. Some of these have been known 
as the Graham-Rudman-Hollings legislation, and also the pay-go rules. 
But because Congress makes those laws and because they haven't been 
reduced to a constitutional amendment, just as Congress giveth, 
Congress taketh away, and Congress has seen fit to exempt itself of 
those rules. A balanced budget amendment, even while enshrined in our 
Constitution, becomes no more effective than those statutory or 
internal rules unless every time Congress wants to get around those 
limitations Congress is required to cast a supermajority vote to 
justify that excess.
  Finally, an effective balanced budget amendment must require that 
Congress cast a supermajority vote anytime we raise the debt limit. 
This will give us an additional guarantee that tricky accounting 
mechanisms will not be used to circumvent some of these most important 
restrictions. Without these restrictions, Congress will continue to 
spend out of control, because Members of Congress tend to be rewarded 
when they spend and they tend to be criticized when they cut, and 
political pressures are such that I fear this spending will continue 
out of control in perpetuity until that moment in which we reach our 
natural mathematical borrowing limit--not our statutory debt limit, our 
natural mathematical borrowing limit. It is at that point when the most 
abrupt, the most painful, the most Draconian cuts will have to be made. 
We can do this in a way that makes sense. We can do this in a way that 
is sensitive to the needs of the most vulnerable Americans, those who 
have become the most dependent upon our entitlement State, most 
dependent for their day-to-day existence on these very programs. Those 
programs will have to be cut abruptly and in a most painful manner 
unless we take the necessary steps right now and start moving onto a 
smooth glidepath toward a balanced budget amendment.
  We may not be able to balance our budget overnight, but we can do it 
over the course of a few years. That is exactly what this would allow 
us to do.
  I have worked closely with a number of my Republican colleagues in 
supporting S.J. Res. 10, a balanced budget amendment proposal that has 
the support of all 47 Republicans. One of my close allies in this 
endeavor has been my friend and colleague, the junior Senator from 
Kentucky. I would like to ask him to share his perspective on why this 
is necessary.
  So I ask Senator Paul why does he think this is so important for us 
to have this amendment right now.
  Mr. PAUL. I think Congress has failed. We have not passed a budget in 
2 years, much less a balanced budget. We cannot even pass a budget 
under the normal procedures, and we are showing no signs of being able 
to balance our own budget.
  They say the American public, when we ask them are they for a 
balanced budget, 70 to 75 percent of the people are for it--
Republicans, Democrats, and Independents. Congress currently has about 
a 10-percent approval rating. My thought is maybe our approval rating 
is so low because we are not listening to what the people want. The 
people want us to balance our budget. They want us to do the 
responsible thing. But they also do not want to say: Oh, Social 
Security, we are going to put that off to the side. They want the 
Social Security fund to be sound too.
  What are we doing right now? We are reducing the funding to Social 
Security. We are doing exactly the things we should not be doing. So it 
is important, as my colleague said, that the balanced budget amendment 
include all spending, and we need to balance our budget.
  Mr. LEE. If the Congress is consisting of a Senate and House, and the 
Members of the Senate and House are elected representatives of the 
people who stand for reelection at regular intervals, and if the 
American voting public overwhelmingly supports a balanced budget 
amendment, why haven't we then passed it and given the States an 
opportunity to ratify such an amendment?
  Mr. PAUL. The big driving force here is the entitlements. If we look 
at the revenue coming into the government, it is all being spent on 
entitlements and interest. Forty percent of every dollar is borrowed, 
but that means we have to borrow all the money for national defense, 
for our roads, all the rest of government. Forty percent of every 
dollar, $40,000 a second, is being borrowed. Why don't we come to an 
agreement?
  I have been asking many people on the other side that, and they say 
we will not fix entitlements until we have a $1 trillion tax increase. 
If that is the starting point, we are never going to fix entitlements 
because many of us think raising taxes is a mistake, in the middle of a 
recession, and we think more money left in the private sector would be 
better spent for jobs.

[[Page 19195]]

  We have the balanced budget debate as part of this debate on how to 
reduce spending on the entitlement programs because they consume 60 
percent of the budget. But there is this unwillingness up here. I think 
people would like us to find solutions. When I go home to my State, it 
doesn't matter whether they are a Republican or Democrat or 
Independent; they want us to fix the entitlement programs. They don't 
want it to be dependent on increasing taxes on everyone also.
  Mr. LEE. What is my colleague's sense as to how the various State 
legislatures are likely to respond to a constitutional amendment 
proposed by both Houses of Congress? Does he think they would likely 
ratify such an amendment by the necessary three-fourths margin?
  Mr. PAUL. In the last year, I spoke before my State legislature to a 
joint session of the House and Senate, and there was overwhelming 
support for a balanced budget amendment. I think there is actually a 
movement out there to do it if we do not do it. There is so much 
feeling among the public that this enormous debt is hurting us.
  When I go home and talk to people, I say: Look, the people the debt 
hurts the worst are those on fixed incomes, senior citizens, and those 
in the working class. Those are the people who are being hurt by this 
debt because it causes rising prices. As we print the new money, those 
people are hurt every time they go buy gas at the pump, every time they 
go to the grocery store. The rising prices are hurting senior citizens 
and the working class. The only way we are going to fix it is to have 
rules that must be obeyed.
  Mr. LEE. So they are paying for Washington's fiscal irresponsibility 
in the form of job losses and in the form of increased prices for goods 
and services and in the form of inflation.
  It is likewise my experience with my State legislature that they seem 
to be very supportive of it. In fact, I have a document here signed by 
the legislative leaders of my State: by Governor Gary Herbert, by Utah 
house of representatives speaker Rebecca Lockhart, and by Utah State 
Senate President Michael Waddoups. It concludes essentially as follows:

       We urge the United States Senate and House of 
     Representatives to pass a balanced budget amendment and send 
     it to the states for ratification. Additionally, we urge 
     Congress to make Utah's current resolution part of the 
     Congressional Record.

  They also proceed to explain why they feel so strongly about this. 
They say:

       Not only for our own sake, but for future generations as 
     well, the states must now combine in an unwavering resolve 
     with convincing action to put the nation's financial house in 
     order. Passage of your own state's resolution urging the 
     support for a balanced budget amendment can help make this 
     happen. Please join with Utah to call upon Congress to 
     immediately pass a balanced budget amendment. We respectfully 
     encourage you to urge your congressional delegation to act in 
     your behalf.

  They are calling not only on Congress but also their fellow State 
legislators throughout the country to urge this same action from 
Congress. In the same breath, they also adopt it, and they supported 
wholeheartedly the specific balanced budget amendment proposal that is 
found in S.J. Res. 10.
  I thank them for doing that. I think they reflect the views of so 
many of our State legislatures which balance their budgets every single 
year. Most of them do. It is not news when they do it. It is not news 
because it is what is expected. It is expected because that is what 
they do.
  I look forward to the day and age when it is no longer news when 
Congress balances its budget.
  I would like to ask Senator Paul another question. Why is it that so 
many are fond of saying, as our President has recently said, ``We don't 
need a balanced budget amendment; what we need is for Congress to just 
do its job''? Why isn't that enough to carry the day?
  Mr. PAUL. The problem is, in the past we have had rules--as the 
Senator mentioned, Gramm-Rudman-Hollings, pay as you go. I think pay as 
you go, which was passed in the late 1990s, was broken 700 times. There 
doesn't seem to be the spine or willpower here to say no. Everybody 
wants something from government, but they do not realize that by 
getting things from government we do not pay for has ramifications.
  Admiral Mullens said last year that the biggest threat to our 
national security right now is our debt. Erskine Bowles, head of the 
Debt Commission, said the most predictable crisis in our history is 
going to be a debt crisis.
  For those on the other side who will oppose a balanced budget, they 
will need to explain to the American people when chaotic situations 
come and we are having trouble paying for those things that come from 
government, when the value of the money is destroyed and when prices 
are rising dramatically, they will have to explain to the American 
people why they thought it was not necessary to balance the budget.
  I have seen no willpower to attack entitlements. There are simple 
ways. We could gradually raise the age of the entitlement eligibility 
and means test the benefits. We could fix Social Security tomorrow. We 
could fix Medicare tomorrow. But the other side is unwilling to talk 
about entitlement reform unless--they believe they are owed some 
obligation of raising taxes by $1 trillion. That would be a disaster 
for the economy, and it is beyond me why the other side will not say 
let's fix Social Security.
  What would it take to fix Social Security? What would it take to fix 
Medicare? I think we could fix all of these problems, but I do not 
think the dialog is there. I have been trying to ask questions to the 
other side for months now, and we are not getting anywhere.
  Mr. LEE. I think most Members of Congress would acknowledge that 
their constituents want the Federal budget balanced. Why is it not 
enough for us just to tell Members of Congress: Please balance it. We 
don't want to have to restrict your authority. We don't want to have to 
take the keys away from the irresponsible driver. We just want you to 
be responsible. Why doesn't that work?
  Mr. PAUL. I think because so much of government spending is 
considered to be mandatory, so it just keeps enlarging and expanding. 
Also, because people have great big hearts and they want to help 
everyone, but they do not realize the ramifications of accumulating 
such a massive debt. As we accumulate this debt there are 
ramifications. There are higher prices and the threat of an economic 
collapse.
  Greece is going under. Italy is behind them. Portugal, Spain--they 
are struggling under this burden of debt. They say when a country's 
debt equals its economy, when it is about 100 percent of its gross 
domestic product, it is losing 1 million jobs a year.
  Our debt is stealing American jobs, it is making us weaker as a 
country, making us vulnerable, making our national security vulnerable. 
But we have to do something. There is no evidence in this body we can 
even pass a budget, much less a balanced budget.
  I think everything about this body shows a failure to be fiscally 
responsible and we need stronger rules.
  Mr. LEE. Perhaps it is inherent in the institution itself, in the 
forces at play, that have made Congress uniquely vulnerable to this 
kind of massive deficit spending. Whatever the reason, we know Congress 
is not willing, is not able, or at least in recent years has not been 
inclined except in rare, unusual circumstances to balance its own 
budget.
  That being the case, we cannot assume that Congress will all of a 
sudden start doing its job, as those who have used this argument have 
insisted. Part of Congress's job, as Congress has come to perceive it, 
is to engage in deficit spending. One of Congress's powers, as Members 
of Congress who read the Constitution will point out, is to borrow 
money on the credit of the United States. So it is not enough to simply 
tell Congress to do its job because it has regarded this kind of 
massive deficit as consistent with that mandate, consistent with that 
injunction.
  Meanwhile, Congress is continuing to occupy a larger and larger share 
of the American economy. We have to remember that for the first 150 
years or

[[Page 19196]]

so of our Republic's existence, we were spending between 1 percent and 
4 percent of gross domestic product at the Federal national level, with 
only two brief exceptions--once during the Civil War and once during 
and then the immediate aftermath of World War I. But that all started 
to change in the 1930s when we broke into double digits for the first 
time ever during peacetime. We have never really gone back.
  Now the Federal Government is spending about 25 percent of GDP 
annually. Roughly a quarter out of every dollar that moves through the 
American economy every year is taken out of the real economy by 
Washington. It is absorbed within the Federal morass that is our 
government. That is a problem. That needs to change.
  I fear, I suspect, I firmly believe that it will not change until we 
take this power away, until we at least impose severe restrictions on 
Congress's borrowing power because it has become part of Congress's 
nature to engage in this kind of out-of-control deficit spending.
  I would like to ask Senator Paul another question. How does he think 
it would impact the lives of Americans, of Kentuckians, on a day-to-day 
basis, if we were to pass an amendment such as this and have it 
ratified by the States?
  Mr. PAUL. People maintain that they are for jobs, for getting the 
economy growing again. If we were to pass a balanced budget amendment 
and send it to the States this year, it would create more jobs and 
create a better psychology than we have had in this country in decades. 
I think we would see a rise in the stock market like we have never seen 
before if we said to Wall Street and said to investors worldwide: We 
are going to balance our budget; we are not going to spend more than we 
take in.
  I think we would see an economic recovery begin as we have never seen 
in this country. I think we would see millions of jobs created. That is 
why we have to do this. That is what the American people want.
  What amazes me about this debate is we are going to have this debate 
and have this vote and the vast majority of the other side said they 
will not vote for a balanced budget amendment.
  I say take that home. Tell your people at home that you are opposed 
to balancing the budget, and let's run on that. Let's see who wins the 
elections in the future because our country's future depends on 
balancing our budget and controlling the debt. I hope we do not wake up 
when it is too late.
  Mr. LEE. I could not agree more with that assessment. It is important 
for us to remind our colleagues of that because according to a recent 
CNN poll, the American people overwhelmingly support this by a margin 
of about 75 percent. Those who oppose it, those who are Members of this 
body, those who are Members of our sister body--the House of 
Representatives--who choose not to support it, will cast their ``no'' 
vote at their own political peril because the American people are 
standing and they are demanding more. They understand that, in the 
words of Benjamin Franklin: ``He'll cheat without scruple who can 
without fear.''
  When Congress is free to spend more than it takes in every single 
year without political consequence, bad things happen. When Congress 
starts to manipulate more and more of the economy, that is something 
the American people understand is hurtful rather than helpful to them, 
to the people on the ground, to the person who is unemployed and 
looking for a job, to the person who is underemployed or underpaid for 
the work he does, to the single mother who is just worried about taking 
care of her children, to the grandparents who are worried about the 
future of their grandchildren, worried about the fact that for the 
first time in American history, Americans fear their posterity will 
enjoy a lower standard of living than what they have enjoyed.
  All this is due to the fact that Congress has no real boundaries to 
its authority and recognizes no real limits on its ability to spend our 
hard-earned money. This has real consequences. We can forestall those 
negative consequences right now if we will act to restrict, on a 
permanent and structural basis, Congress's ability to engage in deficit 
spending.
  Accept no imitations, beware of the Trojan horse balanced budget 
amendment, the one that can be circumvented easily by a simple majority 
vote. Beware of the balanced budget amendment that limits, as a 
percentage of GDP, Congress's ability to spend money. Look out for 
these principles. If we get this balanced budget amendment passed, 
submit it to the States for ratification. They will ratify it, and we 
will find our best days, as Americans, are yet ahead of us.
  I urge my colleagues to cast a vote in favor of S.J. Res. 10.
  I thank the Chair.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Brown of Ohio). The Senior Senator from 
Iowa.


                         Health Care Litigation

  Mr. GRASSLEY. Mr. President, in a few minutes, the Supreme Court will 
be addressing four issues in connection with the constitutionality of 
the Obama health care law. Previously, I spoke about the 
unconstitutionality of the individual mandate. Today, I wish to discuss 
the second issue of four: how much of the law must be struck down if 
the Court finds the individual mandate to be unconstitutional. This 
legal question is called severability.
  When a court rules a law is unconstitutional, it can strike down only 
those parts it considers unconstitutional. It can strike down the parts 
that are intertwined with the unconstitutional provision or it can 
strike down the whole law. Its action will depend upon whether the 
remainder of the law can function as Congress intended when it passed 
it.
  There are rules governing severability. Normally, when only parts of 
a law are held to be unconstitutional, only those parts of the law are 
struck down by the Court. But when a statute's unconstitutional 
provisions are severed, the whole law falls when Congress would not 
have passed the constitutional provisions without the unconstitutional 
ones being in it as well.
  It is not enough that some of the remaining provisions are 
constitutional. The Supreme Court has asked whether the remaining 
provisions ``would function in a manner consistent with . . . the 
original legislative bargain.''
  The lower courts have reached four different conclusions concerning 
the health care reform law; first, that the individual mandate can be 
severed from the rest of the bill; second, that the individual mandate 
can be severed but only if the law's related provisions that require 
mandatory issue and community ratings are also severed; third, the 
opposite position, that the mandate and the related provisions are not 
severable; and, finally, that the mandate is not severable and that the 
whole law must fall.
  One of my Judiciary Committee colleagues has stated, for the 
Democrats, ``worst-case scenario, the mandate falls.'' But even the 
Obama administration does not take that view. The administration argues 
that if the mandate falls, the guaranteed issue and community rating 
provisions must also be struck down. The President's administration 
says health insurance markets will not function if all Americans are 
not forced to buy health insurance and insurance companies must, 
nonetheless, insure everyone who seeks coverage at prices that do not 
reflect their health risk.
  If the mandate falls, keeping any of this law would violate the 
original legislative bargain. I would like to remind my colleagues of 
that original legislative bargain. The health care law passed because 
the majority party--in its own partisan way--was going to pass this 
bill by any means necessary. The individual mandate was very critical 
to the ability to pass this law and to particularly pass it only by 
partisan considerations.
  We considered an amendment in the Finance Committee that would have 
granted exemptions from the individual mandate to everybody who asked 
for that exemption. My good friend, the chairman--and that is Senator 
Baucus, as we all know--correctly stated: ``The system won't work if 
this amendment passes.'' He further called

[[Page 19197]]

it ``an amendment which guts and kills health reform.'' He commented 
that ``if we are serious about making sure that the Americans have 
health insurance, we all have to participate. . . .'' So the bill's 
sponsors knew the whole operation of the law depended upon this very 
important provision that the Court is now considering on the individual 
mandate and whether that issue was constitutional.
  Let me repeat that. The people promoting this legislation that passed 
on a partisan vote knew the whole operation of the law depended upon 
the compulsion of the individual mandate. The legislative bargain also 
showed this law would not have passed if a single comma had been 
changed. Congress could not have enacted any part of this law without 
the individual mandate or any other provision. That situation comes 
about from the fact that the bill passed the Senate by one vote and 
individual Senators were able to extract specific provisions that 
benefited their State in return for agreeing to provide their deciding 
vote for the bill. I think we all know the outrage that came from the 
grassroots of America over some of those very special provisions. We 
also know the American people were disgusted by these deals. But 
without those arrangements and deals, none of the law would have 
passed.
  Those deals were one of the reasons why the Democrats lost their 60-
vote majority in the last election. So when the other body could pass a 
bill only by accepting the Senate bill, they blocked any amendments 
that would have changed so much as a comma. Had anything changed, the 
new 59-vote Senate majority would have prevented passage. The bill was 
offered on a take-it-or-leave-it basis, all or nothing. If the 
individual mandate is struck down, then the whole law must fall. 
Although it is not conclusive, it is certainly relevant that the law 
does not contain a severability clause. This is one more indication 
Congress thought the law was a unified whole.
  It is simply not reasonable to argue that the law should survive 
without the mandate. The most important political accomplishment of the 
law is the additional coverage, not the lower costs we were promised. 
Without the mandate, coverage under the law evaporates.
  Does anyone believe that without the coverage in the law, Congress 
could have passed the massive Medicaid expansion? Does anyone believe 
that without the coverage in the law, Congress could have passed the 
Draconian cuts in Medicare? Does anyone believe that without the 
coverage in the law, Congress could have passed hundreds of billions of 
dollars in new taxes? Of course not. It is simply not a legitimate 
argument that the rest of the bill could have ever stood on its own 
without the individual mandate enabling additional coverage.
  I am pleased the Supreme Court has granted oral arguments devoted to 
the severability question all by itself. In the past, the Supreme Court 
has issued very activist severability rulings in which it rewrote a 
statute in a way Congress never would have passed it.
  For instance, it completely rewrote the campaign finance laws in the 
1976 Buckley v. Valeo decision in a way that produced an unworkable 
system that no Member of Congress would have ever voted for. In the 
Booker case, the Supreme Court rewrote the sentencing laws in a way 
that produced a very unworkable system that no Member of Congress would 
have voted for. This time, the Supreme Court should not use the 
severability doctrine to rewrite the health care law into something 
Congress never would have passed in the first place. It should strike 
down the entirety of the law in keeping with the law on this subject. 
Such a ruling would give us the chance to do what we did not do before: 
work in a truly bipartisan way to address these issues.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.


                       Las Vegas Helicopter Crash

  Mr. REID. Mr. President, I am saddened to have learned this morning 
that five people were killed late yesterday in the terrible helicopter 
crash just a few miles outside Las Vegas. My sympathy is with the 
families of those who died, including pilot Landon Nield and four 
passengers. My thoughts are with them as the recovery efforts continue 
this morning and as they lay their lost loved ones to rest.
  Reports indicate the aircraft was on a tour of Hoover Dam. It crashed 
into a remote and rocky terrain in the River Mountains between Lake 
Mead and Henderson, NV, a few miles from Las Vegas.
  I have taken those helicopter tours. It is an exciting trip. People 
don't realize this, but we are just a few miles from the Grand Canyon 
there in Las Vegas. It takes just a short time to travel to that 
beautiful canyon to see where millions of people go every year to see 
the Grand Canyon. Hundreds of thousands of tourists come from Las Vegas 
to see it.
  I am truly grateful for the efforts of the National Park Service 
rangers, the metropolitan police department, the search-and-rescue 
team, and the Henderson fire departments that responded rapidly to the 
scene of the accident.
  The Federal Aviation Administration and the National Transportation 
Safety Board are investigating this accident as we speak. I will 
continue to monitor the investigation as well as the recovery efforts 
that are in progress.
  Hundreds of thousands of tourists, I repeat, enjoy these helicopter 
tours each year. I am sorry innocent people lost their lives in such a 
rare tragedy. Nevada puts great stock in protecting the safety of its 
tourists, whether flying over the Grand Canyon or walking down the Las 
Vegas strip. I hope the inquiry into the cause of this crash will help 
us better protect helicopter pilots and passengers in the future.
  Again, my heart goes out to the families as they mourn this awful 
tragedy.
  I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. 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. GRASSLEY. If the Democrats aren't going to take their time, I 
would like to take 5 or 6 minutes on another subject, and I ask 
unanimous consent to do so.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Broken Accounting System

  Mr. GRASSLEY. Mr. President, I come to the floor today to commend 
Secretary of Defense Leon Panetta for personally focusing top-level 
attention to what has been a festering problem, and I think it is fair 
for me to say a festering problem for decades. I am talking about the 
Defense Department's broken accounting system and lack of financial 
accountability.
  Secretary Panetta has grabbed the bull by the horns and told the 
military services to get on the stick and move out smartly. He wants 
them to fix the problem now, not later. Secretary Panetta's bold 
initiative is laid out in a Department-wide memorandum dated October 11 
this year. In this document, he calls for an all-hands-on-deck priority 
effort to accelerate plans to create a modern, fully integrated finance 
and accounting system. Such a system, if it ever comes to be, would be 
designed to generate reliable, accurate, and complete financial 
information. Such a system should be capable of producing credible 
financial statements that can earn clean opinions from independent 
auditors. If that happens, the Department will achieve what is called 
full audit readiness. But now I want to warn Secretary Panetta about 
what has happened to so many well-intentioned Secretaries of Defense. 
That could be a big ``if.''
  Under the Chief Financial Officers Act of 1990, all government 
agencies were supposed to reach full audit readiness 15 years ago. As I 
understand it, the Defense Department is now the only delinquent 
agency. After the passage of so much time, how is it, then, that the 
Pentagon cannot provide an accurate accounting of all the money it 
spends? Doing it is a constitutional responsibility. Not doing it is 
unacceptable. Why are the military services

[[Page 19198]]

dragging their feet as they are? What is the problem? Are all of the 
petty fiefdoms entrenched in Pentagon bureaucracy causing the problem? 
Is it because they do not want to surrender control of the money to a 
centralized financial authority?
  This is a festering problem Secretary Panetta has tackled. As a 
former chairman of the House Budget Committee and Director of the 
Office of Management and Budget, he has the necessary knowledge and the 
necessary experience to get this job done.
  The magic date for achieving full audit readiness at Defense was set 
in concrete 2 years ago. Unfortunately, this goal has a long and 
elusive history, and that long and elusive history is best 
characterized by relentless slippage. It is a rolling target date, and 
most experts believe the 2017 deadline is unattainable.
  I am sure our tax-paying public doesn't understand why the Federal 
Government wouldn't have the best accounting system in the world, but 
they don't, particularly in the Defense Department.
  Under Secretary Panetta's leadership, I hope all the slippage comes 
to a screeching halt and all the bureaucratic roadblocks are torn down. 
He has definitely turned up the heat and turned up the pressure. He has 
drawn a line in the sand. He wants to see results and see results now. 
He is calling for a revised plan for achieving audit readiness. It is 
due on his desk December 13. So Army, Navy, Air Force, Marines, Coast 
Guard, and everybody else--well, the Coast Guard is not involved but 
everybody else--get on the stick because that is next week. He has set 
a near-term goal. He wants the Department to produce partial financial 
statements by 2014.
  As a first step, Secretary Panetta has called for the production of 
statements of budgetary resources by 2014. A statement of budgetary 
resources is just one component of a financial statement, but it 
represents a big important chunk of the whole. If credible statements 
of budgetary resources can be produced 3 years ahead of schedule, then 
maybe the full audit readiness by 2017 is, indeed, possible.
  I also understand that Secretary Panetta's near-term goal is being 
incorporated in legislation working its way through Congress right now. 
That should help to move the ball further down the field.
  Secretary Panetta's decision to set a preliminary goal of 2014 will 
be a good gauge--a good test--of what is and is not possible. Can the 
Defense Department achieve full audit readiness by 2017? We won't have 
to wait 6 years to find that out under the process Secretary Panetta is 
instituting. If problems surface early on, we in Congress can help the 
Department take corrective action to keep this effort on track and 
moving in the right direction.
  A willingness and a commitment on the part of the Secretary of 
Defense to take on this problem goes way beyond the production of 
credible financial statements required by the Chief Financial Officers 
Act of the late 1970s. It goes right to the heart of a much larger 
constitutional issue; that is, whether the Department of Defense is 
going to be held accountable.
  The Department must be able to provide a full and accurate accounting 
of all the money it spends. Under article I, section 9 of the 
Constitution, such an accounting must be published from time to time. 
The taxpayers expect and deserve nothing less than that. Today, DOD 
can't do that. The status quo is unacceptable.
  While I began conducting oversight of the Defense Department 
financial management issues more than 20 years ago, I did not come to 
fully appreciate the true understanding of the root cause issue until 3 
years ago.
  After receiving a series of anonymous letters alleging misconduct and 
mismanagement within the inspector general's audit office, I initiated 
an in-depth oversight review of audit reporting. Early on in the 
review, there was a startling revelation: One all-important, central 
element was adversely affecting every facet of the inspector general's 
audit effort, and that was the Department's broken accounting system. 
This dysfunctional system is driving the audit freight train. The 
success or failure of an audit turns on the quality of the financial 
data available for audit by competent examiners. The record clearly 
shows the quality of financial data presented for audit by the 
Department should be rated poor--or maybe I ought to say even worse 
than poor. This is what I call the ``no audit trail'' scenario. It is 
frequently encountered by auditors trying to examine Department of 
Defense books of account. That is the exact problem Secretary Panetta 
is attempting to address.
  All my audit oversight work tells me that fixing the accounting 
machinery is the first step to audit readiness. Once a modern, fully 
integrated system is up and running, it should be a simple matter of 
punching the right computer buttons and credible financial statements 
will roll off of the printer. Doing routine oversight audits should be 
a piece of cake. Today's labor-intensive and time-consuming audit trail 
reconstruction work which auditors now endure in the absence of 
reliable accounting records will be a thing of the past. Most 
importantly, effective internal controls will be in place to protect 
the taxpayers' money against fraud, theft, and waste.
  What I am saying to my colleagues is this: Secretary Panetta is on 
the right track. He is trying to take us to a place where we need to go 
and go soon. I want to help him lead us there, so I am here today to 
encourage and support this courageous effort to clean up the books. I 
admire and respect his personal commitment to such a noble cause.
  I am also here to reinforce the words of encouragement contained in a 
letter that my friend from Oklahoma, Dr. Coburn, and I penned to 
Secretary Panetta on November 17. We, being Senator Coburn and I, want 
to work with him to achieve this most worthy goal. And in the process 
of these remarks to the Senate, I hope other Members of the Senate, 
particularly those who are on the Armed Services Committee, will also 
give Secretary Panetta encouraging words of support and thanks.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Order of Procedure

  Mr. DURBIN. Mr. President, on behalf of the majority leader, I ask 
unanimous consent that the time until 2:30 p.m. be equally divided 
between the two leaders or their designees for debate on the Reid 
motion to proceed to Calendar No. 251, S. 1944; that at 2:30 p.m., the 
Senate vote on the motion to proceed to S. 1944; that upon disposition 
of the Reid motion to proceed, it be in order for the Republican leader 
or his designee to move to proceed to Calendar No. 244, S. 1931; that 
there be 2 minutes of debate equally divided between the two leaders or 
their designees prior to the vote; that both motions to proceed be 
subject to a 60-vote threshold; finally, that the cloture motion 
relative to the motion to proceed to S. 1944 be vitiated.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                       Balanced Budget Amendment

  Mr. DURBIN. Mr. President, a little earlier today the junior Senator 
from Utah, Mr. Lee, came to the floor to discuss the balanced budget 
amendment. Under the budget agreement agreed to in Congress in August, 
both the House and Senate were required to vote on a constitutional 
amendment to balance the budget before the end of this calendar year. 
The House has already taken the vote. The measure failed. The Senate 
still has a responsibility to take it up, which we will do in the 
closing hours of the session this calendar year.
  There are at least two proposals before us for a constitutional 
amendment, and my subcommittee, the Subcommittee on the Constitution, 
Civil Rights and Human Rights of the Committee on the Judiciary, held a 
hearing last week asking questions about these approaches to the 
Constitution.
  The leading approach on the Republican side comes from both Senators 
Hatch and McConnell. I am not certain which they will offer or whether 
the language might change at the last minute, but it would enshrine in 
our

[[Page 19199]]

Constitution a disciplinary mechanism to reduce the budget deficit. 
This has been brought before the Senate and the House before many 
times. This particular proposed constitutional amendment would:
  Require that in each fiscal year Federal outlays shall not exceed 
receipts unless two-thirds of each House votes to waive.
  It caps outlays at 18 percent of gross domestic product each year 
unless two-thirds of each House votes to waive.
  It requires a two-thirds vote in each House for any tax or revenue-
raising measure.
  It requires a three-fifths vote in each House for raising the debt 
limit.
  It allows for waiver of the amendment in times of declared war or 
serious military conflict.
  It prohibits courts from ordering any increase in revenue to enforce 
the amendment.
  It directs Congress to enforce the amendment through appropriate 
legislation.
  It takes effect 5 years after ratification.
  This is far more extreme than the clean House balanced budget 
amendment, which failed to pass in that Chamber on November 18.
  The testimony before our subcommittee from experts in the field said 
that this amendment, proposed by Senators Hatch and McConnell, will 
require Draconian cuts in Social Security, Medicare, Medicaid, our 
military retirement system, and many programs important to working 
families.
  It will make Republican fiscal policies the constitutional law of the 
land, giving protection to those in higher income categories from any 
tax increase forever, without an extraordinary vote in either House.
  It would delegate the task of resolving budget disputes to our court 
system.
  It would make recessions worse by requiring cuts in countercyclical 
safety-net programs such as food stamps and unemployment just at the 
time when those expenditures are most needed.
  It would increase the likelihood of debt limit standoffs each year.
  It would lead to increased burdens on our States.
  During the course of the hearings, several people came forward to 
testify. I recommend to my colleagues that they carefully read these 
testimonies, which are available on the Senate Judiciary Committee 
website.
  The first was Robert Greenstein, president of the Center on Budget 
and Policy Priorities. Mr. Greenstein, who is well recognized and 
respected on Capitol Hill, spoke about the countercyclical aspect and 
said that if you cut spending in the midst of a recession, you will not 
have the resources you need to provide unemployment benefits, food 
stamps, and the things that save families when they are out of work or 
making very little money.
  I ask unanimous consent that Mr. Greenstein's statement be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Testimony of Robert Greenstein, Before the Subcommittee on the 
   Constitution, Civil Rights and Human Rights Hearing Entitled, ``A 
Balanced Budget Amendment: The Perils of Constitutionalizing the Budget 
                      Debate,'' November 30, 2011

       Thank you for the invitation to testify today. I am Robert 
     Greenstein, president of the Center on Budget and Policy 
     Priorities, a policy institute that focuses both on fiscal 
     policy and on policies affecting low- and moderate-income 
     Americans. We, like most others who analyze fiscal policy 
     developments and trends, believe that the nation's fiscal 
     policy is on an unsustainable course. As part of our work, we 
     have been analyzing proposed changes in budget procedures for 
     more than 20 years. We have conducted extensive analyses of 
     proposals to write a balanced-budget requirement into the 
     Constitution, among other proposals.
       The purpose of changing our fiscal policy course is to 
     strengthen our economy over the long term and to prevent the 
     serious economic damage that would likely occur if the debt 
     explodes in future decades as a share of the economy. But we 
     need to choose our fiscal policy instruments carefully. We 
     want to avoid ``destroying the village in order to save it.''
       The goal of a constitutional balanced budget amendment is 
     to address our long-term fiscal imbalance. Unfortunately, a 
     constitutional balanced budget amendment would be a highly 
     ill-advised way to try to do that and likely would cause 
     serious economic damage. It would require a balanced budget 
     every year regardless of the state of the economy, unless a 
     supermajority of both houses overrode that requirement. This 
     is an unwise stricture that large numbers of mainstream 
     economists have long counseled against, because it would 
     require the largest budget cuts or tax increases precisely 
     when the economy is weakest. It holds substantial risk of 
     tipping faltering economies into recessions and making 
     recessions longer and deeper. The additional job losses would 
     likely be very large.
       When the economy weakens, revenue growth drops and revenues 
     may even contract. And as unemployment rises, expenditures 
     for programs like unemployment insurance--and to a lesser 
     degree, food stamps and Medicaid--increase. These revenue 
     declines and expenditure increases are temporary; they 
     largely disappear as the economy recovers. But they are 
     critical for helping to keep struggling economies from 
     falling into a recession and for moderating the depth and 
     length of recessions that do occur.
       When the economy weakens, consumers and businesses spend 
     less, which in turn causes further job loss. The drop in tax 
     collections and increases in unemployment and other benefits 
     that now occur automatically when the economy weakens 
     cushions the blow, by keeping purchases of goods and services 
     from falling more. That is why economists use the term 
     ``automatic stabilizers'' to describe the automatic declines 
     in revenues and automatic increases in UI and other benefits 
     that occur when the economy turns down; these actions help 
     stabilize the economy.
       A constitutional balanced budget amendment, however, 
     effectively suspends the automatic stabilizers. It requires 
     that federal expenditures be cut or taxes increased to offset 
     the effects of the automatic stabilizers and prevent a 
     deficit from occurring--the opposite course from what sound 
     economic policy calls for.
       Over the years, leading economists have warned of the 
     adverse effects of a constitutional balanced budget 
     amendment. In Congressional testimony in 1992, Robert 
     Reischauer--then director of the Congressional Budget Office 
     and one of the nation's most respected experts on fiscal 
     policy--explained: ``[I]f it worked [a constitutional 
     balanced budget amendment] would undermine the stabilizing 
     role of the federal government.'' Reischauer noted that the 
     automatic stabilizing that occurs when the economy is weak 
     ``temporarily lowers revenues and increases spending on 
     unemployment insurance and welfare programs. This automatic 
     stabilizing occurs quickly and is self-limiting--it goes away 
     as the economy revives--but it temporarily increases the 
     deficit. It is an important factor that dampens the amplitude 
     of our economic cycles.'' Under the constitutional amendment, 
     he explained, these stabilizers would no longer operate 
     automatically.
       Similarly, when a constitutional balanced budget amendment 
     was under consideration in 1997, more than 1,000 economists 
     including 11 Nobel laureates issued a joint statement that 
     said, ``We condemn the proposed `balanced-budget' amendment 
     to the federal Constitution. It is unsound and unnecessary. 
     The proposed amendment mandates perverse actions in the face 
     of recessions. In economic downturns, tax revenues fall and 
     some outlays, such as unemployment benefits, rise. These so-
     called `built-in stabilizers' limit declines of after-tax 
     income and purchasing power. To keep the budget balanced 
     every year would aggravate recessions.'' This summer, five 
     Nobel laureates in economics issued a new statement opposing 
     a constitutional balanced budget amendment for this reason.
       Earlier this year, the current CBO director, Douglas 
     Elmendorf, sounded a similar warning when asked about a 
     constitutional balanced budget amendment at a Senate Budget 
     Committee hearing. Elmendorf observed:
       ``Amending the Constitution to require this sort of balance 
     raises risks . . . [t]he fact that taxes fall when the 
     economy weakens and spending and benefit programs increase 
     when the economy weakens, in an automatic way, under existing 
     law, is an important stabilizing force for the aggregate 
     economy. The fact that state governments need to work . . . 
     against these effects in their own budgets--need to take 
     action to raise taxes or cut spending in recessions--undoes 
     the automatic stabilizers, essentially, at the state level. 
     Taking those away at the federal level risks making the 
     economy less stable, risks exacerbating the swings in 
     business cycles.''
       Finally, a month ago, Macroeconomic Advisers (MA) analyzed 
     the economic impacts of a constitutional balanced budget 
     amendment. One of the nation's preeminent private economic 
     forecasting firms, Macroeconomic Advisers provides analysis 
     to major corporations and government entities, such as the 
     President's Council of Economic Advisors under Presidents of 
     both parties, including Presidents Reagan and George W. Bush.
       MA concluded that if a constitutional balanced budget 
     amendment had already been

[[Page 19200]]

     ratified and were now being enforced for fiscal year 2012, 
     ``the effect on the economy would be catastrophic.'' If the 
     2012 budget were balanced through spending cuts, MA found, 
     those cuts would total about $1.5 trillion in 2012 alone--and 
     would throw about 15 million more people out of work, double 
     the unemployment rate from 9 percent to approximately 18 
     percent, and cause the economy to shrink by about 17 percent 
     instead of growing by an expected 2 percent.
       Even if a BBA were implemented when the budget was already 
     in balance, MA concluded, it would still put ``new and 
     powerful uncertainties in play. The economy's `automatic 
     stabilizers' would be eviscerated [and] discretionary 
     counter-cyclical fiscal policy would be unconstitutional . . 
     . . Recessions would be deeper and longer.''
       MA also warned that ``The pall of uncertainty cast over the 
     economy if it appeared a BBA could be ratified and enforced 
     in the middle of recession or when the deficit was still 
     large would have a chilling effect on near-term economic 
     growth.'' MA concluded that a BBA would have detrimental 
     effects on economic growth in both good times and bad.
       Proponents of a constitutional amendment often respond to 
     these admonitions by noting that the proposed constitutional 
     amendment would allow the balanced-budget requirement to be 
     waived by a vote of three-fifths of the House and the Senate, 
     so the BBA would be set to the side in recessions. But this 
     response is too facile, and the three-fifths waiver provision 
     does not solve the problem. It is difficult to secure three-
     fifths votes for anything; consider the paralysis that marks 
     much of the work of the Senate. Moreover, it may take months 
     after a downturn begins before sufficient data are available 
     to convince three-fifths of the members of both houses of 
     Congress that a recession is underway. Furthermore, it is all 
     too likely that even after the evidence for a downturn is 
     clear, a minority in the House or Senate would hold a waiver 
     vote hostage to demands for concessions on other matters 
     (such as new, permanent tax cuts). By the time that a 
     recession were recognized to be underway and three-fifths 
     votes were secured in both chambers, if such support could be 
     obtained at all, extensive economic damage could have been 
     done and hundreds of thousands or millions of additional jobs 
     unnecessarily lost.
       The bottom line is that the automatic stabilizers need to 
     continue to be able to work automatically to protect American 
     businesses and workers. The balanced budget amendment 
     precludes that.
       Nor is a recession the only concern. Consider the savings 
     and loan crisis of the 1980s, or the financial meltdown of 
     the fall of 2008. A constitutional balanced budget amendment 
     would have hindered swift federal action to rescue the 
     savings and loan industry or to rapidly put the Troubled 
     Assets Relief Program in place. In both cases, history 
     indicates that federal action helped save the economy from 
     what otherwise likely would have been far more dire problems.
       Moreover, the federal government provides deposit insurance 
     for accounts of up to $250,000; this insurance--and the 
     confidence it engenders among depositors--is critical to the 
     sound functioning of our financial system so that we avoid 
     panics involving a run on financial institutions, as occurred 
     in the early 1930s. A constitutional prohibition of any 
     deficit spending (unless and until a supermajority of both 
     houses of Congress voted to authorize it) could seriously 
     weaken the guarantee that federal deposit insurance provides. 
     That is a risk we should not take.
       These are illustrations of why fiscal policy should not be 
     written into the Constitution.
       A parallel problem is that the proposed constitutional 
     amendment would make it even harder than it already is to 
     raise the debt limit, by requiring a three-fifths vote of 
     both the House and Senate to raise the limit. This is playing 
     with fire. It would heighten the risk of a federal government 
     default. A default would raise our interest costs and could 
     damage the U.S. economy for years to come.


               Mistaken Analogies to States and Families

       Proponents of a constitutional amendment sometimes argue 
     that states and families must balance their budgets every 
     year and the federal government should do so, too. But 
     statements that the constitutional amendment would align 
     federal budgeting practices with those of states and families 
     are mistaken.
       While states must balance their operating budgets, they can 
     borrow to finance their capital budgets--to finance roads, 
     schools, and other projects. Most states do so. States also 
     can build reserves during good times and draw on them in bad 
     times without counting the drawdown from reserves as new 
     spending that unbalances a budget.
       Families follow similar practices. They borrow--they take 
     out mortgages to buy a home or student loans to send a child 
     to college. They also draw down savings when times are tight, 
     with the result that their expenditures in those periods 
     exceed their current incomes.
       But the proposed constitutional amendment would bar such 
     practices at the federal level. The total federal budget--
     including capital investments--would have to be balanced 
     every year, with no borrowing allowed for infrastructure or 
     other investments that can boost future economic growth. And 
     if the federal government ran a surplus one year, it could 
     not draw it down the next year to help balance the budget.
       I would also note that the fact that states must balance 
     their operating budgets even in recessions makes it all the 
     more important from the standpoint of economic policy that 
     the federal government not be subject to the same stricture. 
     American Enterprise Institute analyst Norman Ornstein 
     addressed this matter in an article earlier this year, where 
     he wrote: ``Few ideas are more seductive on the surface and 
     more destructive in reality than a balanced budget amendment. 
     Here is why: Nearly all our states have balanced budget 
     requirements. That means when the economy slows, states are 
     forced to raise taxes or slash spending at just the wrong 
     time, providing a fiscal drag when what is needed is 
     countercyclical policy to stimulate the economy. In fact, the 
     fiscal drag from the states in 2009-2010 was barely countered 
     by the federal stimulus plan. That meant the federal stimulus 
     provided was nowhere near what was needed but far better than 
     doing nothing. Now imagine that scenario with a federal drag 
     instead.''


         S.J. Res. 10 and S.J. Res. 23 Raise Additional Issues

       The foregoing concerns apply to all versions of the 
     balanced budget amendment that have been introduced. Some 
     versions of the balanced budget amendment, such as S.J. Res. 
     10 and S.J. Res. 23, which are identical, raise additional 
     concerns, because they would write into the Constitution new 
     barriers to raising any revenues--including closing wasteful 
     tax loopholes--to help balance the budget and also would 
     prohibit federal expenditures in any year from exceeding a 
     figure such as 18 percent of the Gross Domestic Product in 
     the previous calendar year. These constitutional requirements 
     could be overridden only by supermajority votes in both the 
     House and the Senate.
       This requirement for a supermajority to raise taxes would 
     be extremely unwise. It would protect what President Reagan's 
     former chief economic advisor, Harvard economist Martin 
     Feldstein, has called the biggest area of wasteful government 
     spending in the federal budget--what economists call ``tax 
     expenditures'' and Alan Greenspan has called ``tax 
     entitlements.''
       In 2010, tax expenditures amounted to $1.1 trillion, more 
     than the cost of Medicare and Medicaid combined (which was 
     $719 billion), Social Security ($701 billion), defense ($689 
     billion, including expenditures in Iraq and Afghanistan), or 
     non-defense discretionary spending ($658 billion, including 
     expenditures from the Recovery Act). Many of these tax 
     expenditures are fully the equivalent of government spending. 
     Let me use child care as an example.
       If you are low- or moderate-income, you may get a federal 
     subsidy to help cover your child care costs, and the subsidy 
     is provided through a spending program. If you are higher on 
     the income scale, you still get a government subsidy that 
     reduces your child care costs, but it is delivered through 
     the tax code, as a tax credit. (Moreover, if you are a low- 
     or moderate-income parent with child care costs, you likely 
     will miss out because the spending programs that provide 
     child care subsidies are not open ended and can only serve as 
     many people as their capped funding allows. By contrast, if 
     you are a higher income household--and there is no limit on 
     how high your income can be--your child care subsidy is 
     guaranteed, because the tax subsidy that you get operates as 
     an open-ended entitlement.) It is difficult to justify making 
     the tax-code subsidy sacrosanct and the program subsidy a 
     deficit-reduction target merely because one is delivered 
     through a ``spending'' program and the other is delivered 
     through the code.
       And as the child care example illustrates, sharply 
     distinguishing between subsidies delivered through the tax 
     code and those delivered through programs on the spending 
     side of the budget also has a ``reverse Robin Hood'' aspect. 
     Low- and moderate-income households receive most of their 
     government assistance through spending programs; affluent 
     households receive most of their federal subsidies through 
     tax expenditures. Effectively barring reductions in tax 
     expenditures from contributing to deficit reduction is a 
     prescription for placing the greatest burden of deficit 
     reduction on those who can least afford to bear it.
       The problems do not stop there. If it requires a 
     supermajority to raise any revenue, another likely outcome is 
     a proliferation of tax loopholes. New loopholes--including 
     loopholes that Congress did not intend but that high-priced 
     tax lawyers and accountants have found ways to create--could 
     become untouchable once they appeared, because it would 
     require a supermajority of the House and Senate to raise any 
     revenue. It would become more difficult to close tax 
     loopholes that opened up, since (under S.J. Res. 10 and S.J. 
     Res. 23) special-interest lobbyists could block such action 
     simply by securing the votes of one-third plus one member in 
     one chamber.
       Finally, as noted, S.J. Res. 10 and S.J. Res. 23 would bar 
     federal spending from exceeding

[[Page 19201]]

     18 percent of GDP in the prior calendar year, which 
     translates into a limit of about 16.6 percent of the current 
     fiscal year's GDP. To hit that level would require cuts of a 
     truly draconian nature. Consider the austere budget that the 
     House of Representatives passed on April 15, sometimes 
     referred to as the Ryan budget. Under that budget, Medicare 
     would be converted to a voucher system under which, the 
     Congressional Budget Office has said, beneficiaries' out-of-
     pocket health-care costs would nearly triple by 2030 
     (relative to what those costs would be that year under the 
     current Medicare program). CBO also has written that under 
     the Ryan budget, federal Medicaid funding in 2030 would be 49 
     percent lower than it would be if the Affordable Care Act's 
     Medicaid expansion were repealed but Medicaid otherwise was 
     unchanged. And funding for non-security discretionary 
     programs would be cut more than one-third below its real 2010 
     level. Yet CBO says that under this budget, total federal 
     spending would be 20\3/4\ percent of GDP in 2030, so it would 
     breach the allowable limit under S.J. Res. 10 and S.J. Res. 
     23 by four percentage points of GDP. This illustrates the 
     draconian nature of the proposed 16.6 percent-of-current-GDP 
     requirement.
       Another way to look at this stricture is to examine federal 
     expenditures under Ronald Reagan. Under President Reagan, who 
     secured deep budget cuts at the start of his term, federal 
     expenditures averaged 22 percent of GDP. And that was at a 
     time before any members of the baby boom generation had 
     retired and when health care expenditures throughout the U.S. 
     health care system (including the private sector) were one-
     third lower as a share of GDP than they are today. It also 
     was before the September 11 terrorist attacks led 
     policymakers to create a new category of homeland security 
     spending, and before the wars in Iraq and Afghanistan led to 
     increases in veterans' health-care costs that will endure for 
     a number of decades.


Estimating the Effects of Spending Cap in S.J. Res. 10 and S.J. Res. 23

       To provide a more precise and detailed analysis of the 
     impact that the spending cap in S.J. Res. 10 and S.J. Res. 23 
     would have, we recently conducted an analysis of its effects, 
     using the latest Congressional Budget Office ten-year budget 
     projections. We considered the impact if the balanced budget 
     requirement would take effect in fiscal year 2018, as would 
     occur if Congress approved it now and the requisite number of 
     states ratified it by September 30, 2013. Here are the 
     results.
       --Congress would have to cut all programs (except interest 
     on the debt) by an average of 24.9 percent in 2018. It would 
     have to cut programs by $1.1 trillion in 2018 alone, and by 
     $6.1 trillion through 2021.
       --If all programs were cut by the same percentage, Social 
     Security would be cut $265 billion in 2018 alone and $1.7 
     trillion through 2021; Medicare would be cut $168 billion in 
     2018 and $1.1 trillion through 2021; and Medicaid and the 
     Children's Health Insurance Program (CHIP) would be cut $115 
     billion in 2018 and $724 billion through 2021.
       --Veterans disability payments, compensation, and other 
     such benefits would be cut $19 billion in 2018 and $122 
     billion through 2021.
       --Defense spending would be cut $141 billion in 2018 and 
     $879 billion through 2021, on top of the reductions made to 
     comply with the discretionary spending caps that the Budget 
     Control Act establishes and the reductions made under the 
     sequestration order that is expected to be issued in January 
     2013, pursuant to that act.
       Congress would not, of course, have to cut all programs by 
     the same percentage and likely would not do so. But if 
     Congress chose to spare certain programs, others would have 
     to be cut even more deeply. For example, if Social Security 
     were spared, the average cut to all other programs would rise 
     by more than one third, from 24.9 percent in 2018 to 34.2 
     percent. Similarly, if the defense budget were increased by 
     placing it at 4 percent of GDP (exclusive of war costs) and 
     maintaining it at that level, as presidential candidate Mitt 
     Romney has proposed, then all other programs--including 
     Social Security--would have to be cut an average of 38.2 
     percent in 2018 under S.J. Res. 10 and S.J. Res. 23.
       Even if the so-called ``plain vanilla'' version of the BBA 
     is pursued, rather than S.J. Res. 10 and S.J. Res. 23, the 
     required level of budget cuts would be massive, assuming 
     taxes are not raised to help balance the budget. Congress 
     would have to cut everything an average of 17.3 percent in 
     2018, an average of 23.8 percent if Social Security were 
     protected, and an average of 29.4 percent if the defense 
     budget were set at 4 percent of GDP and Social Security were 
     not protected.


                               Conclusion

       Policymakers need to begin to change our fiscal trajectory. 
     As various recent commissions have indicated, we need to 
     stabilize the debt as a share of GDP in the coming decade and 
     to keep it stable after that (allowing for some fluctuation 
     over the business cycle). But establishing a balanced budget 
     amendment in the Constitution would be exceedingly unwise. It 
     would likely exact a heavy toll on the economy and on 
     American businesses and workers in the years and decades 
     ahead. It is not the course that the nation should follow.

  Mr. DURBIN. Mr. President, another testimony that I thought was 
extremely compelling came from Alan Morrison. Alan Morrison is an 
accomplished attorney and has argued many cases before the U.S. Supreme 
Court. He is the Lerner Family Associate Dean for Public Interest & 
Public Service Law at George Washington University Law School.
  Professor Morrison really asked us to think through what we are 
doing. In fact, he asked us the most important question: If you put an 
amendment to the Constitution that requires a balanced budget, who will 
enforce it? Who will make it work? Who will decide if you have lived up 
to its terms? He concluded, based on his background in constitutional 
law and arguing before the Supreme Court, not the President. The 
President is not in that position to do it. The President, of course, 
with his budget, has his own favorites when it comes to spending and 
revenue.
  Professor Morrison said this case ultimately has to find its way to 
our court system. But he made it clear that any constitutional balanced 
budget amendment must expressly give to the Federal courts the standing 
to decide the question. He raised a question that without that 
expressed language, he really was doubtful that the courts would take 
it up. They might view it as just a political question to be resolved 
by Congress itself.
  Now, Senator Lee, who spoke on the floor earlier, has a version of 
the balanced budget amendment that expressly gives standing to Members 
of Congress, if I am not mistaken. But the point made by Professor 
Morrison is that any balanced budget amendment has to expressly give to 
our Federal court system the power of judicial review. In other words, 
who is going to call the fouls, the balls, the strikes, and the outs? 
It is going to have to be the court system when it comes to whether the 
balanced budget amendment is being complied with.
  That is the first question but certainly not the last question.
  Professor Morrison then went on to say: Now, put this in the real 
world. In the real world, where Congress has passed a budget, 
appropriations bills, and now someone is arguing that what Congress did 
does not comply with the new provision of the Constitution requiring a 
balanced budget--arguing that, in fact, Congress is overspending the 
amount it is allowed to spend, for example--then, of course, that case 
has to find its way from the Capitol Building to the President, who 
signed the bill, and then over to the court system.
  Keep in mind, while we are in doubt about the outcome on 
appropriations bills and the budget, there is a serious question about 
how we will continue to fund our government, whether we can continue to 
make important payments to military retirees, Social Security 
recipients, Medicare recipients. All of it is in doubt while there is a 
question raised as to whether the budget passed by the Congress is 
unconstitutional.
  This is the thicket we are being led into by those who very glibly 
say: All we need to do is mandate in the Constitution a balanced 
budget, and it will just flow naturally from that mandate.
  Well, listen to what Professor Morrison said:

       The federal courts will (rightly) be extremely reluctant to 
     wade into these budget battles and thus will want to be sure 
     that there is likely to be a violation before agreeing to 
     decide the merits. But budgets are inherently uncertain in 
     their impact, depending on such factors as whether revenue 
     targets are met, whether the demand for entitlements is 
     higher or lower than anticipated, whether discretionary 
     spending is fully realized, and whether an existing war winds 
     down or a new one starts, each with great uncertainties 
     accompanying them. Thus, it will be far from clear on October 
     1st of a given fiscal year whether a duly enacted budget will 
     or will not be in balance, assuming that the question is 
     reasonably close, as it is likely to be in at least some 
     years. Unless Congress makes it clear, either in the 
     [constitutional] amendment or perhaps by subsequent 
     legislation, that the courts should resolve all doubts in 
     favor of finding claims ripe, the courts are likely to be 
     very reluctant to reach the merits even for those persons who 
     are expressly given standing in the amendment.

  Then, of course, is the question of a remedy. What if Congress passes 
a budget and appropriations bills, the

[[Page 19202]]

President signs them, and they are challenged in court, and the court 
says: Yes, in fact, Congress has overspent beyond the requirements of 
the Constitution. What is next? What remedy would the courts order? 
What can the court do?

       Can they order the recipients (of salaries, social security 
     benefits, Medicare payments, payments under Government 
     contracts etc) to ``pay back'' [a certain percentage]? Or can 
     it order Congress to rectify the balance in the next year's 
     budget, which would almost certainly trigger a new lawsuit? 
     To be sure, the courts will not dismiss as moot claims that 
     are capable of repetition, yet evade review because the 
     duration of the violation is so limited that the courts 
     cannot decide its legality before it has ceased.

  Professor Morrison asks us to get beyond the bumper stickers and to 
think twice before we amend our Constitution.
  In the 220 years since the enactment of the Bill of Rights, we have 
amended this Constitution precious few times. We have done it for 
compelling national reasons. We have done it to extend the right to 
vote to women. We have done it to make it clear that African Americans 
treated as slaves will be treated as citizens in the United States. We 
have done it to deal with questions of Presidential disability and 
succession. These are things which were compelling, major, national 
issues which could be resolved in a clear, definitive way by our 
Congress, working with the States for ratification.
  Now comes the flavor of the day. In the midst of the deficit crisis 
debate, there are those who are arguing that we should not accept our 
responsibility in the Senate and the House to balance the budget. No, 
we should just put in the Constitution that we are required to do it. 
And then they go further. If we are going to address it, they say, we 
are going to draw certain lines that future Congresses, forever, as 
long as this constitutional amendment applies, will be bound by--to 
make it more difficult to raise taxes on anyone in the United States; 
to make it imperative, if not mandatory, that cuts be made in programs 
such as Social Security and Medicare. These are questions that should 
be decided by Congress and the President on a timely basis.
  I have been involved in the past 2 years with a lot of debate about 
our national budget deficit, both on the Bowles-Simpson Commission and 
with the voluntary effort by six Democratic and Republican Senators. It 
is not easy. It is very hard. But it can be done if the political will 
is there.
  I think we need to summon the courage, the political courage and the 
will to do it. But we should reject--summarily reject these efforts to 
amend our Constitution. They are not well thought out. The Constitution 
is too important a document, a historical guidepost for our Nation, and 
an inspiration for nations around the world to put in a fatally flawed 
constitutional balanced budget amendment in the heat of the moment.
  This is a significant vote. Those of us--and that includes every 
single Member of the Senate--who have sworn to uphold and defend the 
Constitution need to take that document very, very seriously. Those who 
want to amend it in quick fashion, changing their amendment language by 
the day, should be dismissed. If they do not show the reverence for 
this document that it deserves, if they do not take the time to make 
certain their proposals are consistent with the sanctity and importance 
of this document, they should not be taken seriously.
  I do not believe any of my colleagues can go home having voted for 
that amendment and expect wild applause from audiences across America. 
They will understand that this was just a political reaction to a very 
important issue. Let's not amend the Constitution with a balanced 
budget amendment.
  (Mrs. HAGAN assumed the chair.)
  Mr. DURBIN. Madam President, I would like to make one additional 
brief statement. I see the Senator from Ohio in the Chamber.
  The holiday season is upon us, and a lot of us are thinking about our 
families, and we are thinking about being with them as quickly as we 
can. It is a time of year that has a special significance for so many 
of us. But what was made clear by President Obama yesterday--and my 
colleagues should take note--we are not going home for Christmas, 
Hanukkah, or any holiday season until we have done our job for the 
people of this country.
  Millions of people in Illinois and across America are counting on 
Congress to extend the payroll tax cut. What does it mean in my State? 
With an average income of $50,000 a year, it is worth more than $1,000 
a year to those families. It is worth about $125 to $150 a month to 
have a payroll tax cut--money that working families, struggling from 
paycheck to paycheck, desperately need to fill the gas tank, to pay the 
utility bills, to provide clothing for their kids, to make sure they 
can stay in their home. These are the basics.
  No Member of Congress is going to be allowed to go home and ignore 
the imposition of such a new payroll tax on America. President Obama 
met with the Democratic leaders of the Senate yesterday, and he said 
point-blank--he has told the First Lady, Michelle, and his girls that, 
if necessary, they can have their Christmas vacation in Hawaii, which 
they go to each year, by themselves, and he will wait here until this 
job is done. I hope that does not happen for the sake of his family or 
for the sake of any family of any Member of Congress, but in order to 
avoid that, we have to do the right and responsible thing.
  This afternoon, there will be a vote on the payroll tax cut offered 
by Senator Casey of Pennsylvania. It is a payroll tax cut that would 
help millions of America's working families have more to spend and help 
the economy to recover. And he pays for it. He does not add to the 
deficit. He pays for it by imposing a surtax--listen closely--on the 
second million dollars earned by a person in a year, not the first 
million. You do not pay a penny on the first million you earn. On the 
second million, you will pay a surtax, and I think it is 2 percent, 
maybe less.
  The Republicans have said: Absolutely unacceptable. We will not allow 
you to impose this onerous tax on these people.
  People who are already making $20,000 a week, we cannot ask them to 
pay 2 percent more on the next dollar they make? I do not think it is 
unreasonable. And if it leads to a payroll tax cut that helps families 
across this country, if the economy continues to recover even at a 
faster pace, if we see more business activity and business life and 
more people working, do you know what is going to happen? Those same 
wealthy people will prosper again, as they always do. It is in their 
best interests for this economy to get well. For our Republican friends 
to fold their arms and say: We are just not going to let you touch the 
wealthiest people in America, is an irresponsible position.
  Senator Casey has led this effort. It is the second effort we have 
made. We had one last week. The Republicans offered their alternative 
last week. It had 20 votes on the floor of the Senate--20 out of 47 
Republican Senators. Twenty voted for it. They want to bring it up 
again today. They will probably get more than 20 votes this time, but 
it is pretty clear that the Republican Senators are halfhearted in 
their support of this Republican alternative.
  One Republican Senator from Maine had the courage to step across the 
aisle last week and join us. We salute Senator Collins for doing that. 
We hope others will do it today.
  We can bring this challenge to a close the right way by extending the 
payroll tax cut, paying for it with a tax on the wealthiest people in 
America. We can do our job and go home and be with our families. If 
Republicans will not come to the table to work with us on a reasonable 
compromise, I am afraid the American people will know very clearly who 
is to blame for continuing a tax on working families across America.
  The facts are that we want working Americans to have a good year, get 
through a difficult time, and the economy to recover.
  We should be doing this on a bipartisan basis. The President said: 
Roll out your Christmas trees and blankets

[[Page 19203]]

here in the Senate because you are going to stay here, even through the 
holidays if necessary. We are not going to go home to celebrate until 
we can celebrate with American families who are counting on us across 
America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN of Ohio. Madam President, I go home every weekend, back to 
northeast Ohio where I live in a town called Avon in Lorain County. I 
want to go home at Christmas. I want to be with my 3-year-old grandson 
and my three daughters and son. But I also think our obligation, as 
Senator Durbin said, the assistant majority leader, is to stay here and 
get our work done. And ``get our work done'' means extend the payroll 
tax cut and extend unemployment benefits.
  If we do not do that, frankly, we are ruining the holiday season for 
tens of thousands and dozens of tens of thousands, if you will, of 
Ohioans and Illinoisans and North Carolinians. If we do not do that, we 
do not deserve to be able to go home and be with our families. I am not 
trying to be a martyr, but I think it is shameful a group of people, in 
order to protect the highest income taxpayers in this country--those 
making over $1 million a year--continue to block an extension, a 
continuation, if you will, of this tax cut for working families.
  In my State the average tax cut that we will vote for today, and 
continue until it happens is about $100, $110, $120 per family per 
month. It is absolutely unconscionable not to do that.
  Senator Durbin also talked about the constitutional amendment to 
balance the budget. I want to recount something I heard earlier today 
on the Senate floor. Two of my conservative colleagues--one from 
Kentucky, one from Utah--spoke about the importance of a balanced 
budget amendment. I supported a balance budget amendment in the past 
when I was in the House of Representatives. In here I have actually 
voted--it was part of an effort to get us to a balanced budget in 
reality in the 1990s. When President Bush took office we had the 
largest budget surplus. We balanced the budget and then some. We had 
the largest budget surplus in American history.
  I was part of that. I was proud of that. We accomplished what we set 
out to do. We accomplished what we said we would, and we accomplished 
something very important for our country. It was then in the first 
years of the last decade--in 2001, 2002, and 2003--that we went to war, 
two wars, Afghanistan and Iraq, and we did not pay for them.
  President Bush, in those days, pushed through two tax cuts--one in 
2001, one in 2003--that went overwhelmingly to the wealthiest 
Americans, without paying for it, without offsets, cuts, or other 
taxes. Then President Bush also pushed through--at a very close, 
middle-of-the-night vote in the House of Representatives, by, I 
believe, one vote or two votes--a Medicare privatization bill that 
basically was a bailout for the drug companies and the insurance 
companies and did not pay for that. That is why we got to this 
situation, unfortunately, where we have had this terrible budget 
problem.
  What I wanted to address is what the solution of a couple of my 
colleagues seems to be. To their minds, there seems to be sort of a 
moral equivalent of, on the one hand, asking millionaires, people 
making a million dollars and up, to pay their fair share and making 
Medicare beneficiaries and Social Security beneficiaries take big cuts.
  So I heard my two colleagues basically say this: that if the 
Democrats were serious about moving toward a balanced budget--and, 
again, 15 years ago we did it. We absolutely did it with President 
Clinton, got to a balanced budget, got to a surplus.
  They said if the Democrats are serious about that, they will raise 
the retirement age for Social Security, and they will raise the 
eligibility age of Medicare. Let me tell you why that is a bad thing. I 
was in Youngstown not too long ago at a townhall meeting. A 63-year-old 
woman stood up and said--62, 63 years old.
  She said: I just need to stay healthy and stay alive until I am 65 so 
I have health insurance. I need to be able to stay alive for another 
couple of years so I can get on Medicare and have health insurance.
  Imagine living your life that way, when you are thinking: I just have 
to stay alive until I am 65. Then I will have good government Medicare 
health insurance. So some people here say: Well, tough luck. We are 
going to have to raise the eligibility age of Medicare to 66, 67, 68, 
whatever my very conservative colleagues are proposing--from Utah and 
Kentucky--raise the eligibility age for Medicare as if that is going to 
make them better.
  When you think about it--I want 62-year-olds--one reason we passed 
the health care reform, I want 62-year-olds to have health insurance. 
One, it is good for them. Second, it is way better for the country, 
including taxpayers, that they get health care before they get sicker 
and sicker and end up in the emergency room or end up with cobbled-
together health care that is much more expensive, let alone what it 
does to this lady and her family.
  Second, they proposed to raise the eligibility age for Social 
Security. Now, it is easy for people around here to dress like this 
who, for all intents and purposes, talk for a living--work hard at what 
we do but talk for a living and work in offices and, you know, do not 
do heavy lifting and are not exposed to the elements and all of that. 
It is easy for us to say: Let's raise the Social Security age to 70 
because, God willing, we will still be here if the voters vote us in 
and we can keep doing this. Most of us are pretty healthy and do not 
work around asbestos and are not doing heavy lifting, are not working 
in the snow, in the rain, in the heat.
  Well, when I think about raising the retirement age to 70, here is 
who I think about. I think about construction workers. I think about 
women who cut hair. I think about a waitress who works at a diner. I 
think about someone who works at a factory in Brunswick, OH. I think 
about people who walk the floors in retail. We are going to tell them 
that--we who dress like this, we who have jobs like this are going to 
tell those constituents--and there are millions in my State and tens 
and tens and tens of millions around the country, working-class 
citizens of this country who simply cannot work until they are 70.
  If you are cutting hair, if you are changing sheets in a hotel, 
cleaning out bathrooms in a hotel, if you are working as a carpenter or 
a laborer or sheet metal worker, if you are working as an auto worker, 
a steel worker or nonunion in a tool-and-die or machine shop, you 
probably cannot work until you are 70. Your body probably will not be 
able to function in the workplace, with the physical and mental demands 
now to work in the workplace until 70. Yet people here think it is OK 
to do that.
  The people here, I would add, can retire if they have 20 or 25 years 
in the House and Senate. They can retire at 60 or 62 or whatever and 
get a full pension. That is why I have introduced legislation--not 
opposed to their balanced budget amendment. I think it has all kinds of 
mechanisms in it that lock in low tax rates for the richest people in 
this country. I will not get into that. Senator Durbin talked about 
that.
  But I have introduced the legislation that simply says if we raise 
the retirement age to 70, then Members of Congress cannot retire with a 
pension until 70. Why should Members of Congress be able to get a 
pension at 62 or 58 if they served enough years, but a Social Security 
beneficiary should not until a decade or so later?
  So it is important, as we talk about balancing the budget, as we talk 
about our fiscal situation, not to make a moral equivalence between the 
richest people, the richest 1 percent in this country paying their fair 
share in taxes, making that a moral equivalence to Social Security and 
Medicare beneficiaries having to endure significant cuts.
  Some people around here call Medicare and Social Security 
entitlements. They can be dismissive: We have to fix entitlements. 
Well, talk to a 72-year-

[[Page 19204]]

old in Dayton or a 68-year-old in Zanesville or an 81-year-old woman in 
Xenia or Springfield, OH, and they will tell you oftentimes this is not 
really an entitlement, this is an investment. They paid into Social 
Security. They paid into Medicare. They want to make sure the 
government fulfills the covenant that we made over the last 75 years in 
the case of Social Security, 45 years in the case of Medicare, the 
covenant that we made between our government and the citizens of this 
country. That is the importance of that. We need to think twice.
  That is why my legislation was introduced, in part, that Congressmen 
and Congresswomen cannot receive a pension before the same retirement 
age as Social Security beneficiaries. We need to think twice before we 
are going to tell a carpenter or a barber or a retail worker or a steel 
worker that we are going to raise the retirement age and make them work 
until 70 so they can receive Social Security benefits.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. COBURN. 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. COBURN. I ask unanimous consent that I be allowed to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Making Tough Choices

  Mr. COBURN. I am coming to the floor now because we will not have an 
opportunity to debate on the payroll tax cuts because the vote is going 
to be at 2:30 and that time is taken.
  I think it is important for the American public to look at what is 
happening in Washington right now. There is not a disagreement in 
Washington about whether we want people to continue to receive this tax 
cut. The disagreement is, should it come out of Social Security? Should 
we continue to undermine Social Security or should we do it a different 
way? That is No. 1.
  No. 2 is, if we are going to borrow $117 billion against our children 
knowing that we have significant waste, fraud, abuse, and duplication 
in the Federal Government of in excess of $350 billion a year, should 
we not eliminate some of that, pay for this rather than borrow the 
money?
  So we have the posturing between the two parties based on the 
election that is coming to create a predicate that some people only 
care for the rich and some people only care for those who are less 
fortunate, which is all smoke and mirrors. There is unanimity that we 
want this to continue. So what the American people are not hearing is 
the real debate.
  The real debate is, should we eliminate some of the waste, some of 
the stupidity, some of the duplication in the Federal Government and 
actually do that to be able to pay for this so that as we do this thing 
that we all want to do--in other words, keep this $1,000 to $2,000 per 
family in the economy now--that we do not do that by crippling the 
children of the very people who are in the economy.
  You know it is a zero-sum game. Somebody is going to pay the bill 
sometime. If it is us who refuse to do the hard work of ferreting out 
waste, duplication, fraud, then our service will have been in vain 
because what we are really doing is transferring to our children the 
responsibility for us today. Actually, it is going to come doublefold 
because the way this bill is lined out is we are going to borrow the 
money in the market to pay for this continued decrease in Social 
Security taxes.
  We have already stolen $2.6 trillion from Social Security, Congresses 
have the last 20 years. When we borrow that money and put it back in, 
there is no reduction in what is owed, so our kids are actually going 
to get to pay for it twice. They are going to pay for it now with the 
new debt that we are taking, and the fact that new payment was not 
recognized as a reduction, they are going to get to pay it again.
  So it is going to cost our children a quarter of a trillion dollars. 
There is a lack of honesty in talking plainly with the American people. 
They know we are in trouble. The question is, Will we be honest with 
them, treat them as adults in terms of how we go about solving the 
problem? We hear the mess. The press takes advantage of that. There is 
not a lot of difference between the Senator from Ohio who just spoke, 
in terms of what we want to do in terms of protecting seniors. But the 
politics surrounding it and the game playing poorly serves our country.
  So for all the press that is watching, we are going to get this done. 
I know it is the game Blood Sport that is happening right now, with the 
press saying: Will they or will they not? It is going to happen. We are 
going to fix unemployment so that we have a continuation of that. The 
real question is, Will we fix the real things that the country needs 
fixed or are we just going to kick the can down the road?
  What we are doing is kicking the can down the road because we won't 
make the tough choices to pay for it. We won't pay for the unemployment 
benefits. The first 26 weeks is what is earned; that is what people 
contributed to. We are up to 99 weeks, and that comes directly from the 
American taxpayer--it actually comes from the future American taxpayer.
  Some real questions ought to be asked. What is the game being played 
in Washington by both sides--trying to get advantage in the next 
election? As our country drowns in debt, we continue to further 
mortgage our children's future, and we continue to treat the American 
people like children rather than the adults they are. Everybody knows 
we are all going to have to sacrifice. Does that mean we are going to 
abandon the social safety net? No, it doesn't. Does that mean a 62-
year-old who is trying to get on Social Security is not going to get 
there? No; they are. Those are the tactics of fear that something will 
not be there. As a fiscal conservative or a constitutional 
conservative, I want us to fulfill our obligation to the promises we 
have made and to our oath, which is to uphold the Constitution. Thomas 
Jefferson said you should never borrow money which you have not laid a 
tax to pay for. He is a Founder--one of the Founders of our country. We 
would do well to go back and revisit the wise and prudent advice of our 
Founders. You don't see that or hear that much anymore in the U.S. 
Congress.
  These are big problems our country is facing. I am 63--soon to be 
64--years old. We have never faced anything close to what we are facing 
today. How we react and how we respond is going to make all the 
difference in the world--not only for our short-term future but also 
for our long-term future.
  I hope the American people who are listening right now understand 
that we are going to do what is necessary to help get the economic 
process of our country running again in a better and viable way. I hope 
you will dismiss the partisan rhetoric and the class warfare rhetoric 
that is all too commonplace today. If we will focus on what the problem 
is rather than the next election, we will have a great deal more 
success in coming together and forging solutions the American people 
can be proud of and we will actually move our country ahead.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BEGICH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Cordray Nomination

  Mr. BEGICH. Madam President, first, I want to comment on the Cordray 
appointment that was attempted a little bit ago, and then I want to 
bring up some more good news on the economic front.
  First, I was somewhat disappointed in the vote of 54 to 45, garnering 
only 1 Republican from the other side--only 1--and on such an important 
agency that ensures the protection of consumers in a variety of areas. 
It seems illogical to me that we would not find

[[Page 19205]]

compromise in a vote to appoint someone to run an agency that this 
body, in a 60-vote margin, approved to help protect consumers, 
particularly considering what has happened over the last several years 
and the glaring problems and challenges consumers have had to endure 
with the financial institutions of this country as well as from other 
entrepreneurs, such as pawnshops and payroll check cashers. All of 
these institutions would have firm regulations and provide the consumer 
an opportunity to respond, or those who get abused by those programs.
  I am a little disappointed. I wasn't intending to come and speak on 
that issue, but I wanted to have my voice on the floor that I was 
disappointed that an appointment could not happen, which I believe is 
raw politics. It has nothing to do with the individual's ability to 
make this agency run properly. They didn't want to appoint him because 
they didn't like the agency--the 45 or so who didn't vote for it. And I 
think it all boils down to one very simple thing: Consumers are now, 
once again, left without someone running an agency that will help 
protect them against these people who prey on individuals in the 
financial arena.


                              The Economy

  Again, Madam President, I am somewhat disappointed, but let me get to 
the real reason I came to the floor. I came down yesterday and had a 
lot to say about the economy and where we are and the headlines that 
were reported yesterday. And in less than 48 hours--27 hours--there are 
more good news headlines.
  These are some of the headlines I talked about yesterday: ``Jobless 
Rate Dips to Lowest Level in More Than 2 Years.'' New York Times. CNN: 
``Dow Closes With the Largest Gain Since March 2009.'' ``Private Sector 
Jobs Soar. Payroll Forecasts Rise.'' That is Reuters. The Wall Street 
Journal: ``Online Sales Reached Record $1.25 Billion on Cyber Monday.''
  On top of that, we had record sales for Thanksgiving weekend--Black 
Friday they call it, and Small Business Saturday. Again, an incredible 
impact for our economy.
  What this tells me--even though we get a lot of criticism from the 
other side and others who complain maybe we are not doing our job and 
are frustrated that Washington isn't working as well as it could--and I 
agree there are a lot of areas where we are not able to move forward, 
such as the appointment I mentioned a few minutes ago--is there are 
good examples of policies we have worked through over the last 3 years 
during this great recession. We have fought kind of a lonely war to get 
these policies in place.
  Once again, more good news, and let me read off a couple. This week's 
Time magazine has a whole article entitled ``How America Started 
Selling Cars Again.'' Why is this important? Because this is a 
manufacturing base for our country. It employs people not only in jobs 
in the automobile industry but it trickles all the way through the 
economy of the country. It doesn't matter if they are at a port, for 
example.
  I remember meeting recently with the folks from the Detroit Port 
Authority talking about ships and the movement of product from the 
automobile industry across this country, but also manufacturing and 
other activities throughout the country that support the automobile 
industry. It is moving forward. It is growing.
  We took a dramatic step and got a lot of criticism for it. As a 
matter of fact, no one wants to even mention the words, because 
everyone is so nervous about it. Some call it an auto bailout. And, 
yes, we did do that. That result is a healthy, strong, profitable 
industry that is bringing jobs to America and creating jobs in America. 
As a matter of fact, there was an article in the Wall Street Journal 
not long ago talking about how we are importing jobs from Japan and 
China back to the United States, to the automobile industry, because it 
is successful.
  And, oh, by the way, they are paying back all those loans they got 
from the Federal Government with interest. So the taxpayers are getting 
their money back in full. The net result is, because we helped at the 
right time, we have ensured we are still a player in the automobile 
industry not only in this country but in the world market. So for those 
who want to continue to complain and to demonize that action, the net 
result is we are bringing jobs back to the United States in this 
industry.
  The Cash for Clunkers Program was another piece of legislation that 
barely passed. Again, many of us on this side of the aisle took that 
lonely road because we thought it was the right thing to help move this 
economy forward. Again, the net result is this industry is profiting 
more in the last several years. They are producing more jobs not only 
in their industry directly but indirectly. And the naysayers on the 
other side rarely bring this up anymore, because in less than 3 years--
really, less than 2 years--this industry has turned itself around 
because of American ingenuity and with the help and support from the 
U.S. Government, and that help and support is being paid back with 
interest in the good old American way.
  So from my perspective, once again, this is a great story, and I 
commend Time magazine for talking about the future.
  Let me also talk about another one. This is from CNBC. I pulled this 
off because I like looking at all the business magazines and Web sites 
every morning. I glance through quickly to see what is happening, what 
the markets are doing, what the industry is doing, who is investing, 
what are the new businesses, and what is happening out there. Here is 
this one: ``U.S. Mortgage Applications Jumped Last Week.''
  This is the industry that fell apart in the beginning of the great 
recession--the housing industry. A lot of people say that was the main 
reason the economy collapsed. It was a significant portion of it, no 
question about it. But let me read this.

       The Mortgage Bankers Association said its seasonally 
     adjusted index of mortgage application activity, which 
     includes both refinancing and home purchase demand, spiked 
     12.8 percent in the week December 2. The MBA's seasonally 
     adjusted index of refinancing applications also jumped, 
     gaining 15.3 percent, while the gauge of loan requests for 
     home purchases rose 8.3 percent.

  By loan requests, these are people who are now saying, I want to 
think about buying a home. I want to purchase today. I want to start 
examining what is out there.
  Here is what the Mortgage Bankers Association's vice president of 
research and economics said. These are his words:

       Applications increased significantly as mortgage rates 
     dropped to their lowest levels in about 2 months.

  Actually, overall, it is the lowest level in decades. But we now 
measure things by an eighth of a point. So when you are at 4.125 or 
4.25, we are now measuring which is lower overall, but it is lower for 
the last several decades. Incredible.
  Let me read another one. This is from Politico, but it is reporting 
on the Bloomberg Global Poll--which they started doing in 2009 to sort 
of see where foreign investors will put their money. Where will they 
invest? Where will they take the dollars they have accumulated or will 
gather through investors and shareholders and so forth? Where are they 
going to put their money?

       More than . . . 41 percent, said they expect the U.S. will 
     have one of the strongest performing economies in the world 
     in the coming year--the highest percentage the country has 
     seen since the Bloomberg Global Poll began in October 2009.

  Here is another one. Today, again MSNBC. ``Jobless claims drop to 9-
month low.''

       . . . jobless claims dropped 23,000 to adjusted 381,000--

  That is actually below the magical threshold of 400,000, which people 
watch. The question is, Will it be consistently under 400,000? We have 
received more of these under 400,000 recently than in the last 3 years. 
That is a good signal that the economy is moving.
  I know some will say it is not enough. Well, when I came here, half a 
million people were losing their jobs every single month. So we have 
now had 21 consecutive months of job growth in the private sector. That 
is a

[[Page 19206]]

great statement for us as an economy, this 21 consecutive months of job 
growth. It is an indication our economy is moving.
  Do we want it to move faster? Of course we do. That is what America 
is about. We want to see things happen right now--today. But this has 
been called a great recession. Yet we are pulling ourselves out of it. 
It takes time and it takes good policy. And, yes, it takes some 
opportunity and taking a little risk, and we did some of that here. We 
made some decisions that were tough and were not necessarily very 
popular at times.
  I remember many of the calls I received on some of these issues. But 
what is the end result? That is what we have to measure by. Leadership 
is not about waiting for a poll to tell us what is right or wrong or 
waiting for someone to say, here is the right move because your 
constituency will vote for you if you do this thing this way. It is 
about leadership. Sometimes the leadership role is tough. It means 
getting a few trucks running over you a little bit, leaving some tire 
tracks on your back, but the end result is what we look for.
  Today, where we are, we have job growth--not as significant as we 
want but job growth. Where were we? Half a million jobs a month 
disappearing.
  Let me cite another one. This is a big issue people are concerned 
about. As a former mayor, managing a city, you are always looking at 
the revenues because the revenues tell you how your local economy or, 
if it is State revenue, how your State is doing. If you remember, at 
the end of 2008, 2009, and beginning of 2010, there was incredible 
concern about local governments collapsing under the debt and deficit 
spending and unable to manage.
  As a matter of fact, the markets were concerned about municipal and 
State debt and what that might mean. Oddly enough--and I wish I had 
brought that article--it hasn't panned out as people thought. Local 
governments, State governments are doing better than people 
anticipated. It is still a tough road, no question about it. We still 
have firefighters, police officers, and teachers who have been laid 
off. We tried to pass a bill here to help that out, but that didn't 
happen because too many on the other side opposed it.
  But for State and local governments, here is the latest State revenue 
report by the Nelson A. Rockefeller Institute of Government, University 
at Albany, NY: ``Overall Tax Revenues Show Strong Growth in Second 
Quarter.'' The article speaks to State tax revenues growing by 10.8 
percent in the second quarter of 2011.
  As a matter of fact, the year ending June 2011--which is the end of a 
lot of fiscal years for State and local governments--the period 
corresponding to 46 States--almost all of the States' fiscal years--
total State collections increased by $58 billion in that year, or 8.4 
percent, from the previous year, the strongest annual gain since 2005.
  What does that mean? That means local economies, State governments, 
are starting to recover. It is still a rough road but starting to 
recover. Good signs. That means there is more economic activity within 
their communities. It means businesses are replanting and redesigning 
their opportunities in those communities. People are buying homes, as I 
mentioned, which means they are paying property taxes, which means 
those local governments can hire police and fire and paramedics and 
teachers.
  Again, I could probably come here every day and give this kind of 
good news. Because what we all hear--today, the market is down. I 
forget what it is--70, 80 points, maybe 100 today--but the headlines 
will be: market crashes or market dips significantly.
  Here is the reality. Since March of 2009, the market is up, even with 
today's activity, 81 percent. That means my son's 529 account is better 
today than it was 3 years ago. That is good because that means my wife 
and I can afford to make sure he can go to college someday. But it also 
means retirement accounts have more resources in them today than they 
did 2\1/2\ or 3 years ago. It means public pension programs and 
investment retirement programs that invest in these kinds of markets 
also are doing better. But, again, the headline will be that the sky is 
falling because that is what people like to do. They like to prey on 
fear rather than opportunity.
  I think a lot of us on this side believed in the opportunity, in the 
future of this great country 3 years ago when we sat here and made some 
tough decisions over the first 18 months in my term. Tough decisions. 
But we believed in what was possible. We believed that this economy 
would turn around with a little help from the people who live here, 
work here, and see the future.
  We also knew we had to do a little bit. We had to do something 
extraordinary to create the opportunities for the future of this great 
country. As I mentioned, private sector jobs increased, the automobile 
industry better than ever before, home sales doing better than they 
were 2\1/2\ years ago, the market is up by 80 percent--all good news. 
But we don't hear a lot of those as the front-page, above-the-fold, 
big, bold headlines because they are not sexy. They are not 
controversial. But that is what is happening. If a lot of us around 
here had more belief in the potential, it would be incredible what 
could happen.
  Let me end on this note; that is, we are in the middle of the debate 
on continuing tax relief for the folks who are working every day, the 
people I just talked about who are buying homes, buying cars, paying 
taxes. We are saying to them: We want to make sure you continue to 
receive the dollars in your pocket.
  In my State, that is $300 million--just in my State, $300 million 
with the payroll tax deduction that they get to keep for 400,000 
Alaskans instead of the IRS taking it. I don't know about you, but I 
think that is a good thing.
  I know some will say: We have no proof this works. Well, I just gave 
proof. I will give proof every day if necessary. Yes, we can't say this 
certain industry came back because of this one little item. But I will 
tell you, if we put $300 million in my State into the hands of 400,000, 
Alaskans, a little over $1,000 per person, the net result is they are 
going to spend that money in the economy. They are going to buy that 
car, that washing machine, or go on that vacation. They are going to 
spend that money in this economy. Yes, there is no fancy report that 
said this business succeeded because we gave them this special tax 
break--which we shouldn't do. We gave to the people of this country an 
incredible opportunity to take their money and put it to work.
  Mr. President, 160 million families will benefit--160 million 
families will benefit by this action today. People making $50,000 or 
less will put back about $1,000 into their pockets again--not in the 
IRS's pocket but into the consumers' pockets that they will spend.
  Again, I will hear from the other side how bad it is, that there is 
no proof, that this may not work. It is working. They can deny it all 
they want, but I will continue to lay all the facts down. It is not me 
producing this out of some government document. It is mostly some very 
conservative publications reporting on the good news.
  I hope the folks on the other side--and I know we picked up a 
Republican from when we had this before. This is a modified, 
compromised version that didn't pass last week to say: OK, we are 
trying to compromise. But we are keeping it simple and trying to do it 
in a way that ensures that middle-class Americans, and Alaskans whom I 
represent, put more money in their pockets, people who are working 
every day, making a difference in the economy--not people who are just 
on the top end of the cycle. I know that is the great debate, and we 
differ and I differ with several people on the other side.
  I do believe people who make $1 million or more should pay a little 
bit more. I don't have any heartburn over that. It is 235,000 people we 
are talking about versus 160 million. That is who I want to put my 
investment in because I know those people, who are individuals, 
families, and a significant portion of small businesspeople who will 
continue to build this economy.
  As a matter of fact, the best growth period and growth pattern right 
now is

[[Page 19207]]

small business. They are the ones that are the backbone of this 
economy. Those are the ones that we need to help. That is what this 
bill does. I hope we find the magical success.
  I wish we would have 50 majority votes like the rest of this world 
operates under. For some reason, this place has to have special rules 
and make it complicated and hard for anything to get done. But maybe 
there will be some people who join and want to support the American 
people and support giving them tax relief and making sure their lives 
are better, especially at this time of year with Christmas around the 
corner. I would love to give them a good Christmas gift. I think all of 
us would. Let's do it. Let's do it today. Let's do it for the American 
people. Let's do it for my constituency in Alaska, for your 
constituency, Mr. President, and all the rest in this room.
  Mr. President, if there is one thing I look for, if it makes a 
difference for Alaska, if it is about Alaska, I am there. This is not 
only about Alaska, it is about this country. It is about the middle 
class. Not only am I there, I am double there, and I hope we find 
opportunity in this Chamber to do the right thing.
  Mr. President, I ask unanimous consent that any time spent during a 
quorum call between now and 2:30 p.m. be equally divided.
  The PRESIDING OFFICER (Mr. Blumenthal). Without objection, it is so 
ordered.
  The Senator from Nevada.
  Mr. HELLER. Mr. President, today the Senate will consider my 
legislation again to extend the temporary payroll tax cut.
  This week, the Senate has been given another opportunity to do the 
right thing and provide much needed relief to the American worker.
  It shouldn't be news to anyone that Americans are desperate for 
solutions. Millions of Americans are unemployed, underemployed, or have 
simply given up looking for a job.
  In between looking for a job or higher paying employment, Americans 
are busy trying to figure out how to handle high health care costs, 
looming bankruptcy, and the threat of foreclosure.
  As a Senator from Nevada, I understand how difficult it is, perhaps 
more than any of my other colleagues. My State has the unfortunate 
distinction of leading the Nation in unemployment, in bankruptcies, and 
in foreclosures. I hear from my constituents every day on these issues. 
Nevadans--Democrats, Independents, and Republicans--are looking to 
Congress for answers, and they are frustrated that they are not getting 
them.
  Even with the economic difficulty Americans across the country are 
experiencing, Congress appears to be prepared to stage a partisan 
standoff rather than extending a payroll tax cut for hard-working 
Americans. I cannot allow this to happen. Americans deserve solutions.
  The plan I have introduced to extend the payroll tax cut is a 
workable solution that will provide relief for Americans responsibly. 
In fact, the solution I am proposing today borrows a cost-cutting idea 
from the bipartisan Simpson-Bowles Commission that can actually pass 
Congress and be signed into law.
  My proposal allows American taxpayers to hold on to more of their 
hard-earned wages while not punishing the Nation's job creators as the 
majority proposes. Under my plan, American taxpayers will not see a tax 
increase. In fact, my plan prevents a tax increase on those already 
receiving a payroll tax credit. Today, Congress can do the right thing 
by allowing employers to continue to invest in their businesses so they 
can plan for the future and, of course, hire more workers.
  I understand that Democrats would prefer to pay for the payroll 
extension by raising taxes on employers. But treating tax dollars 
responsibly is absolutely necessary if we are going to see long-term 
economic growth in this country. In this case, we can extend the 
payroll tax cut and still pay for it.
  I also understand that not all Republicans support my plan. To be 
honest, I disagree with some of my colleagues who claim a payroll tax 
holiday is not necessary. I believe that we should allow more Americans 
to hold on to their hard-earned wages. For those who are already 
struggling to live within their means, this payroll tax cut will 
continue some much needed relief.
  Today, I am asking my Republican and Democratic colleagues to come 
together and join me to help continue the payroll tax holiday without 
raising taxes on businesses in America. This will help preserve long-
term job growth in the future.
  My proposal is a workable solution containing provisions endorsed by 
both the majority and my colleagues in the House of Representatives. 
This is the only version of the payroll tax cut that has the potential 
to pass Congress and to be signed into law.
  My proposal pays for the payroll tax cut by reducing government 
spending where it is no longer needed and requires the richest 
Americans to pay higher premiums for Medicare. This will allow us to 
strengthen and preserve Medicare for those Americans who rely on the 
program the most.
  This is the same approach endorsed by Democrats who say the richest 
Americans should do more. Americans want solutions. They do not want 
more partisan bickering.
  This week Congress has another opportunity to do the right thing to 
help hard-working Americans extend the payroll tax cut holiday.
  I make calls back to my home State every week. In those calls, I ask 
Nevadans if they think their children will have access to a better, 
brighter future than their own. For the first time in history, a 
majority of Americans and a majority of Nevadans believe their children 
will have less opportunity. By continuing down this path of 
partisanship, Congress is robbing the American people of the dream for 
their children. This needs to stop.
  We in this body need to seriously consider the high stakes of the 
political games that continue to unfold on this Senate floor. American 
workers need solutions and they need relief right now. Congress should 
come together today, put partisanship aside, and pass meaningful 
legislation that will benefit all Americans.
  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. CASEY. 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. CASEY. Mr. President, I also ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CASEY. Mr. President, I rise this afternoon to speak about an 
issue we will be voting on today and we have been discussing and 
debating now for a number of days. We are into our second week of 
debate about a cut in the payroll tax. Just by way of review--and so 
many Americans have been following this debate--here is where it 
basically stands between what we did last year and what we are trying 
to do this year.
  Last year, as part of a larger tax bill, we reduced the payroll tax 
for employees across the country from 6.2 percent to 4.2. So that 2-
percent reduction meant millions of American families were able to have 
about $1,000 in their pocket of take-home pay they wouldn't have had 
otherwise absent that action in the tax bill. What we are trying to do 
this year--and I should start with what I tried to do last week, and we 
got 51 votes for this--is to say we should not only continue or extend 
that cut in the payroll tax but we should expand it. So instead of 
saying it should go from 6.2 to 4.2, we take it down to 3.1. In 
essence, what we tried to do last week was cut in half the payroll 
taxes that relate to employees. We wanted to add to that cutting in 
half the payroll tax for small businesses, and they would benefit 
disproportionately. Thirdly, we wanted to add to that a tax credit so 
that if an employer hired or increased wages for employees, if an 
employer expands their payroll in one of several ways, they can get a 
tax credit equal to an elimination of the payroll tax. So instead of 
the usual 6.2,

[[Page 19208]]

you would be down to zero. So the combination of those three would mean 
we would be helping employees by cutting their payroll tax in half, 
helping employers by cutting their payroll contribution in half, and 
then have this third element as well for employers who actually hired 
people or added to their wage base.
  Unfortunately, in the Senate, because we needed 60 votes and got 51, 
we knew at that point we couldn't get enough support from the other 
side of the aisle. So what I did, in working with our leadership and 
working with folks in the Senate, was to refashion the legislation so 
that we made it smaller. We reduced the cost of the overall proposal by 
some $80 billion. We also concentrate on just the element we worked on 
together last year, which was the employee side.
  Here is where we are in this debate about cutting the employee 
payroll taxes. It is down to this question: Should we cut it to 4.2, as 
we did last year, or should we cut it further and reduce it in half? I 
believe we should, and I think most Americans believe that.
  Here is what it means to folks out there. Instead of saying we will 
continue what we did last year--which would be about $1,000 per worker, 
in essence, per family, on average--if we cut it in half, we can get 
that number up to $1,500. So it is not just putting money in people's 
pockets and continuing to do that for another year, but it is more 
money. It would go from roughly $1,000 to approximately $1,500.
  That is where we are. Unfortunately, we are not yet sure we can get 
the support we need to do that.
  Here is what it means to Americans. It means more money in their 
pockets, more take-home pay, but it also means that if we don't, at a 
minimum, extend the payroll tax cut from last year--here is what it 
means on two issues: GDP--gross domestic product--and jobs. According 
to Mark Zandi of Moody's--someone we have quoted often on both sides of 
the aisle and relied on his expertise--not extending the payroll tax at 
least to the 4.2 level would reduce 2012 growth of real GDP in a State 
such as Pennsylvania, by way of example, by 0.52 percentage points. 
That means we are talking about gross domestic product or gross State 
product, in a sense, in a State such as Pennsylvania, cutting it in 
half instead of allowing it to grow. So this has a real adverse 
consequence for Pennsylvania and for the country if we don't do what we 
did last year.
  Of course, if we did more than we did last year, as I think we should 
and I think most people do, we could not only not fall behind, but we 
could move forward dramatically.
  Here is another way to look at it: Jobs. According to Mark Zandi, not 
extending the payroll tax cut will cost Pennsylvania 19,700 payroll 
jobs in the calendar year 2012. For context, in the State of 
Pennsylvania last year, the payroll tax job creation number--or payroll 
jobs added last year--was 54,500. So we created last year in a State 
such as Pennsylvania almost 55,000 jobs. But if we don't extend the 
payroll tax cut this year, we are talking about losing as many as 
almost 20,000 jobs. This is a substantial factor in the discussion 
about our economy. It would have a substantially adverse impact if we 
don't keep the payroll tax cut in place.
  As I said before, we should do more than we did last year. We should 
cut it in half. It would give people across the country peace of mind 
in two time periods: The next couple weeks when they are going out and 
shopping and enjoying the holidays. We want people to spend as much as 
they feel they can, and if they know they are going to get $1,000 to 
$1,500, they can spend more in this upcoming holiday season. But it is 
especially important for 2012. Why should taxpayers have to live with a 
tax increase because Washington just didn't get along and the same old 
political games were played in Washington instead of saying let's come 
together in a bipartisan way and extend and expand the payroll tax cut 
from last year.
  We have lots to do in the next couple days and weeks. But maybe the 
most important thing we can do in the next few days is to make sure we 
cut the payroll tax again. Because this is about whether we are going 
to give people peace of mind as we head into a new year and whether we 
are going to put more money in their pockets in order to jump-start the 
economy, to give the economy the jolt we got at the end of last year. 
Last year, we came together and passed a tax bill and we had average 
job growth from February, March, and April 2011--those 3 months--
average private sector job growth of just about 240,000 jobs. We need 
another 3-month period similar to that. In fact, we need another 6 or 7 
or 8 months similar to that. But the only way to get there is to put in 
place this payroll tax cut.
  I hope when we vote later today, we will get at least 60 votes for 
this effort to make sure we are giving Americans peace of mind and more 
money in their pockets.
  With that, I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sanders). Without objection, it is so 
ordered.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent to speak 
despite the expiration of the majority's time.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. BLUMENTHAL. Thank you, Mr. President.
  Mr. President, I begin by thanking my colleagues, many of whom served 
in the last Congress. I thank them for extending the payroll tax cut at 
that time, providing a payroll tax cut from 6.2 percent to 4.2 percent. 
I thank them on behalf of myself. I was not a Member of this body at 
that time. I thank them on behalf of the American people. They are due 
that thanks and appreciation for that vision and courage in extending 
that measure in cutting the payroll tax so as to lessen the recession. 
We have only to listen to the virtually unanimous opinion of economists 
to the effect that we saved the Nation, this body saved the Nation from 
a deeper recession.
  Now I ask my colleagues to undertake a similar mission, to accomplish 
the same goal, to once again save the Nation from a deeper recession. 
The recovery of this Nation's economy has been fragile and slow. Many 
economists--notably, Mark Zandi, who has been quoted by my 
distinguished colleague from Pennsylvania--say that a failure to extend 
it will mean a new recession. We are talking about average Americans, 
ordinary people who are hurting and struggling. They are hurting 
economically and struggling to find jobs. They are struggling to stay 
in their homes and keep their families together at a time of year when 
joy and satisfaction ought to be the quality of their lives. They 
deserve this measure of peace of mind, as my colleague from 
Pennsylvania, Bob Casey, has referred to it. But all of us--the entire 
Nation--deserve the economic security, which is a matter of national 
security.
  Rescuing this country from continuing debt and deficit means 
returning to full employment. Twenty-five percent of our deficit can be 
eliminated by going back to lower rates of unemployment.
  Economic recovery is a means to countering and curtailing what the 
former Chairman of the Joint Chiefs of Staff called a national crisis 
and a security threat.
  Economic recovery depends on consumer demand. As I go around the 
State of Connecticut, businesspeople tell me what they need most is 
consumer demand. Their confidence and certainty about the future of the 
economy, their willingness to invest, depends on consumer demand. That 
kind of factor, that need is what ought to motivate all of my 
colleagues--every Member of this body--to vote for this measure, not 
only extending that payroll tax cut but also reducing it by 3.1 
percent.
  We are talking about anywhere from $1,400 to $1,500 or more in the 
pockets

[[Page 19209]]

of people around the country, people around the State of Connecticut. 
The average middle-class family in Connecticut earns $83,797 per year 
and would save $1,676 in taxes under the current payroll tax cut. Let 
me give you those numbers again. The average middle-class family in 
Connecticut earns $83,797 per year--back in their pockets $1,676 in 
taxes under the current payroll tax cut as proposed in this measure.
  We are talking here about a compromise. Our side of the aisle has 
modified this bill to make it about one-third smaller in size and cost. 
This legislation will no longer give employers a tax break. We have 
pulled back on the magnitude of this measure. But it will still affect 
160 million workers who will receive nearly $1,500 in additional take-
home pay.
  This bill will be paid for by measures that were coming from the 
deficit reduction proposals contained in a number of the 
supercommittee's ideas. It is paid for by fees charged by Fannie Mae 
and Freddie and by a proposal suggested by my colleague, the Republican 
leader. The cost-saving reform suggested by him would make millionaires 
ineligible for unemployment compensation and food stamps.
  This legislation also levies a surcharge, a temporary 10-year 
surcharge, on the highest earners in American society, who can well 
afford it when their own interests would be extraordinarily well served 
by the consumer demand and economic recovery that would be generated.
  I know many of my colleagues, including the Presiding Officer, are 
concerned about the effect on Social Security, and so am I. The Social 
Security trust fund is a trust, a sacred trust that we are honor bound 
to protect. And I would not vote for this measure if I thought it 
created a threat, a real threat, to the viability of that fund. But I 
believe the assurance we have received from the chief actuary of that 
fund--and it is contained in a letter to Secretary Geithner and to 
Jacob Lew, it was printed in the Congressional Record yesterday by 
Senator Casey, and it assures that the effect would be negligible. In 
fact, it says the trust funds would be ``unaffected.'' It uses that 
word, and I will quote directly from the letter.

       We estimate that the projected level of the OASI and DI 
     Trust Funds would be unaffected by enactment of this 
     provision.

  That letter comes from the chief actuary of the trust fund, and I am 
prepared to rely on that assurance and to say that I believe this kind 
of measure is the responsible thing to do at this point in our economic 
history to make sure our recovery is continuing.
  The effects of failing to do so: The economists differ whether the 
rate of growth will suffer by .5 percent, which is Mark Zandi; or .66 
percent, Goldman Sachs; or 1 percent, RBC Capital Markets; or 1.5 
percent, Michael Pond. Whatever the specific percentage, we know it 
will be grave and serious in the damage to our economy if we fail to 
extend and enlarge the tax cut.
  So I urge my colleagues to heed the voices they are hearing back 
home, as I am hearing from ordinary citizens, middle-class families.
  We are talking about a middle-class family measure that will benefit 
people like Marilyn in Bloomfield, who writes to me:

       I believe these cuts need to remain in effect in order to 
     avoid deepening the recession we are in. I urge you to 
     support the President's jobs plan and pass as much of it as 
     you can in upcoming legislative sessions, for the benefit of 
     struggling families.

  She writes and she says ``to urge you to vote in favor of extending 
the payroll tax cut for workers beyond Dec 31. . . . ''
  Listen to people like Ginny. They are in every one of our States. 
Ginny, who is from Southport, CT, writes:

       I know you will do the right thing when the payroll tax cut 
     and increasing the taxes of only the 2nd million and above of 
     wealthy Americans comes up for a vote. I have faith in you.
       With the economy still struggling to recover and millions 
     of Americans struggling to put food on the table this holiday 
     season, we cannot afford to raise taxes on working Americans.

  Those voices from middle-class families are reaching this body every 
day. We have heard them before. This body heeded them last year in 
enacting this tax cut. I thank every Member who voted for it. It was a 
bipartisan vote. I hope this one will be as well. I will be proud to 
join Members from both sides of the aisle, and I hope this measure will 
have support--overwhelming support--from both sides of the aisle in 
showing the American people we can come together, bridge our 
differences, and compromise.
  This measure reflects a compromise on both sides. I hope it will be 
passed later in the day.
  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. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. I thank the Chair.
  The PRESIDING OFFICER. Under the previous order, the question occurs 
on agreeing to the motion to proceed to S. 1944, which is subject to a 
60-affirmative-vote threshold.
  Mr. WHITEHOUSE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kerry) and the Senator from Wisconsin (Mr. Kohl) are necessarily 
absent.
  The PRESIDING OFFICER (Mrs. McCaskill). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 50, nays 48, as follows:

                      [Rollcall Vote No. 224 Leg.]

                                YEAS--50

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Klobuchar
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--48

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Kyl
     Lee
     Lugar
     Manchin
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sanders
     Sessions
     Shelby
     Snowe
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--2

     Kerry
     Kohl
  The PRESIDING OFFICER. On this vote, the yeas are 50, the nays are 
48. Under the previous order requiring 60 votes for the adoption of 
this motion, the motion is rejected.
  The Republican leader.

                          ____________________