[Congressional Record (Bound Edition), Volume 158 (2012), Part 7]
[Senate]
[Pages 9749-9755]
[From the U.S. Government Publishing Office, www.gpo.gov]




         FOOD AND DRUG ADMINISTRATION SAFETY AND INNOVATION ACT


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the Reid motion to 
     concur in the House amendment to S. 3187, the FDA Safety and 
     Innovation Act.
         Harry Reid, Tom Harkin, Sheldon Whitehouse, Kent Conrad, 
           Jack Reed, Christopher A. Coons, Mark Begich, John F. 
           Kerry, Charles E. Schumer, Barbara A. Mikulski, 
           Benjamin L. Cardin, Robert Menendez, Joseph I. 
           Lieberman, Mary L. Landrieu, Richard Blumenthal, Patty 
           Murray, Tom Carper.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to concur in the House amendment to S. 3187, a bill to amend the 
Federal Food, Drug, and Cosmetic Act to revise and extend the user-fee 
programs for prescription drugs and medical devices, to establish user-
fee programs for generic drugs and biosimilars, and for other purposes, 
shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New Hampshire (Mrs. 
Shaheen) and the Senator from Colorado (Mr. Udall) are necessarily 
absent.
  Mr. THUNE. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn), the Senator from Utah (Mr. Hatch), the 
Senator from Illinois (Mr. Kirk), the Senator from Arizona (Mr. Kyl), 
the Senator from Alaska (Ms. Murkowski), and the Senator from Florida 
(Mr. Rubio).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 89, nays 3, as follows:

                      [Rollcall Vote No. 166 Leg.]

                                YEAS--89

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Schumer
     Sessions
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--3

     Burr
     Paul
     Sanders

                             NOT VOTING--8

     Coburn
     Hatch
     Kirk
     Kyl
     Murkowski
     Rubio
     Shaheen
     Udall (CO)
  The PRESIDING OFFICER. On this vote, the yeas are 89, the nays are 3. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. GRASSLEY. Mr. President, 2 years ago a constituent of mine named 
David Rozga committed suicide shortly after smoking a product called 
K2--a synthetic form of marijuana.
  A week before he passed away David had graduated from Indianola High 
School.
  He was looking forward to attending my alma mater, the University of 
Northern Iowa, that fall.
  David and his friends spent the week after graduation going to 
parties and celebrating their achievements.
  Some of David's friends heard about K2 from some other friends who 
were home from college.
  They were told that if you smoked this product like marijuana you 
could get a high.
  David and his friends were about to go to a concert and thought 
smoking K2 before would be nothing but harmless fun.

[[Page 9750]]

  However, shortly after smoking K2, David became highly agitated and 
terrified.
  His friends tried to calm him down and once he appeared calmer he 
decided to go home instead of going out with them.
  Tragically, David took his own life shortly after returning home--
only about 90 minutes after smoking K2 for the first time.
  The only chemicals in his system at the time of his death were those 
that comprised K2.
  David's tragic death is one of the first in what has been a rapidly 
growing drug abuse trend.
  In the past 2 years, the availability and popularity of synthetic 
drugs like K2, Spice, Bath Salts, and 2C-E has exploded.
  These drugs are labeled and disguised as legitimate products to 
circumvent the law.
  They are easily purchased online, at gas stations, in shopping malls 
and in other novelty stores.
  Poison control centers and emergency rooms around the country are 
reporting skyrocketing cases of calls and visits resulting from 
synthetic drug use.
  The physical effects associated with this use include increased 
agitation, elevated heart rate and blood pressure, hallucinations, and 
seizures.
  A number of people across the country have acted violently while 
under the influence of the drug, dying or injuring themselves and 
others.
  Just a few weeks ago a man in Miami, Florida attacked a homeless man 
and ate nearly half his face before police had to shoot him to stop 
him.
  Two weeks ago, police in upstate New York tazered a woman who was 
choking her 3-year-old son after smoking bath salts.
  These ongoing and mounting tragedies underscore the fact that 
Congress must take action to stop these drugs from causing further 
damage to our society.
  I introduced the David Mitchell Rozga Act a year ago last March to 
ban the drugs that comprised K2.
  My colleagues Senators Schumer, Klobuchar, and Portman have also 
joined me to ban synthetic drugs including bath salts and 2-CE 
compounds.
  Today our separate bills are included as part of the House and Senate 
agreement on the FDA User Fee bill we will be voting on shortly.
  I thank all who have worked very hard to get my bill, as well as the 
other bills banning synthetic drugs, through Congress.
  I especially want to thank Mike and Jan Rozga and their family for 
their tireless efforts to prevent more tragedy from befalling other 
families.
  This legislation will drastically help to remove these poisons from 
the store shelves and protect our children from becoming more victims. 
I urge my colleagues to support cloture on this bill.
  The PRESIDING OFFICER. The Senator from Connecticut.


                       Nomination of Donna Murphy

  Mr. LIEBERMAN. Madam President, I thank my friend and colleague from 
Washington, Senator Murray, for yielding to me for a moment to make a 
unanimous consent request regarding the nomination of Donna Murphy of 
the District of Columbia to be an associate judge on the DC Superior 
Court.
  This nomination was favorably reported by the Homeland Security and 
Governmental Affairs Committee on June 29, 2011. That is almost 1 year 
ago. For that year, this nomination has been stopped from a vote. I 
come to the floor today to say it is time for this to stop.
  In fairness to this able nominee, she deserves an up-or-down vote. 
She would bring a wealth of talent and experience to the job.
  Donna Murphy has been a career attorney in the Department of Justice 
for four administrations--two Democratic and two Republican--and has 
received strong support from senior officials for whom she worked in 
each one of those administrations.
  John Dunne, the Assistant Attorney General for Civil Rights under 
President George H.W. Bush praised Ms. Murphy as ``extremely smart, 
hard-working, and fair-minded.''
  Bill Lee, the Assistant Attorney General for Civil Rights under 
President Clinton recalls Ms. Murphy as ``one of the best lawyers in 
the Division who was known for her fairness, integrity, smarts, legal 
skills, dedication and exceedingly hard work.''
  Wan J. Kim, the Deputy Assistant Attorney General and Assistant 
Attorney General for Civil Rights under President George W. Bush 
recommended Ms. Murphy for the D.C. Superior Court believing that she 
possessed the qualities he has seen in exemplary jurists. Under Mr. 
Kim, Donna Murphy received the division's highest award in 2007, the 
John Doar Award for Excellence and Dedication, an award that was 
established under the first Bush administration.
  So there is no rational reason at all to continue to deny this 
nominee an up or down vote.
  A native of Norristown, PA, Ms. Murphy fell in love with Washington, 
DC during a visit when she was just 12 years old. She moved here to 
attend college at American University, where she received her Bachelor 
of Science in Political Science in 1986.
  From American University, she went to Yale Law School--a decision I 
naturally admire--and received her law degree in 1989.
  Since October 1990, she has worked for the Justice Department's Civil 
Rights Division on a variety of cases, including voting rights, 
discrimination in credit, housing and public accommodations, and 
allegations of police misconduct.
  It is her work on these police cases that has brought about some 
criticism, but not much.
  Both prior to the Committee's approval of Ms. Murphy's nomination and 
afterwards, Committee staff investigated the criticism and found no 
evidence to support the charge that she would be negative to police.
  In fact, we have received letters of support for Ms. Murphy from 
leading police officials, including one group in Los Angeles, CA, for 
her work in negotiating and implementing consent decrees regarding 
allegations that the Los Angeles Police Department had been 
systematically violating people's civil rights.
  The Committee received a letter from Gerald Chaleff, the Special 
Assistant for Constitutional Policing for the LAPD who negotiated the 
consent decree between the LAPD and Department of Justice. Mr. Chaleff 
wrote that during negotiation and implementation of the consent decree 
Ms. Murphy earned the respect and admiration of LAPD personnel with 
whom she dealt. Mr. Chaleff also notes that contrary to the vague and 
unsubstantiated allegations made against her, Ms. Murphy at all times 
acted honorably, ethically, and intelligently.
  We have similar letters from law enforcement officials praising her 
work negotiating similar consent decrees with the Pittsburgh Bureau of 
Police, the city of Steubenville, OH, and the New Jersey State Police.
  It is past time the Senate approve this nomination and send this 
qualified nominee to the bench and let her serve the city that has been 
her home for more than 20 years.
  Mr. President, I ask unanimous consent that these letters, as well as 
the letters from former Justice Department officials that I cited 
earlier, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                        Civil Rights Division,

                                  Washington, DC, August 24, 2011.
     Hon. Joseph Lieberman,
     Chairman, Senate Homeland Security and Governmental Affairs 
         Committee, Washington, DC.
       Dear Mr. Chairman: I write this letter to strongly 
     recommend Donna Murphy to the Superior Court of Washington, 
     DC. I started in the Civil Rights Division at the Department 
     of Justice as an Honors Program hire in 1989, where I served 
     as a prosecutor in the Criminal Section. I have also served 
     as Deputy Assistant Attorney General in the Division, and I 
     now have the privilege of serving as the Assistant Attorney 
     General. During this extensive experience working in the 
     Division, I have had the pleasure of working with Ms. Murphy, 
     who joined the Division in 1990, shortly after I was hired.

[[Page 9751]]

       Ms. Murphy has also held a variety of positions during her 
     tenure in the Civil Rights Division, including serving as 
     both a trial attorney and also as a manager. Although she 
     began in the Voting Section, she has also served in the 
     Special Litigation Section and the Housing and Civil 
     Enforcement Section. The breadth and depth of her experience 
     in the Division enforcing many of our nation's most cherished 
     civil rights laws is nearly unparalleled. While working with 
     her over the last two decades, I have witnessed her 
     professionalism, intellect, and extraordinary judgment at 
     work. Ms. Murphy treats everyone with respect, and has shown 
     uncommon abilities as a leader. Her tactical and analytical 
     legal skills have allowed her to quickly master new, and 
     complex, areas of the law. The breadth of her experience 
     across three different Sections of the Division illustrates 
     her extraordinary abilities in this regard.
       Her commitment to the Department of Justice and to the 
     enforcement of our nation's promise of equal opportunity has 
     been apparent to me from the beginning of my experiences 
     working with her, and it has been apparent to the leadership 
     of the Division in both Democratic and Republican 
     administrations. For example, in 2007, she received the 
     Division's John Doar Award, which is the Division's highest 
     overall award. She has also received the Division's highest 
     litigation award, the Walter W. Barnett Award, in 1995. In 
     addition, Ms. Murphy has consistently received performance 
     awards recognizing her outstanding contributions to the 
     Division's work.
       When I returned to the Civil Rights Division in October 
     2009, I was pleased to find that Ms. Murphy had remained in 
     the Division, as I knew she was someone I could rely upon in 
     helping to ensure full and fair enforcement of civil rights 
     laws. I have the highest regard for her abilities and know 
     her to be a person of great character.
       Please do not hesitate to contact me if you have any 
     questions about my experience working with Ms. Murphy.
           Sincerely,
                                                  Thomas E. Perez,
     Assistant Attorney General.
                                  ____



                                Los Angeles Police Department,

                           Los Angeles, California, July 14, 2011.
     Re Donna M. Murphy.

     Hon. Joseph I. Lieberman, Chairman,
     Senate Homeland Security and Governmental Affairs Committee, 
         Dirksen Senate Office Building, Washington, DC.
     Hon. Susan M. Collins, Ranking Member,
     Senate Homeland Security and Governmental Affairs Committee, 
         Dirksen Senate Office Building Washington, DC.
       Dear Senators Lieberman and Collins: I write in strong 
     support of the nomination of Donna M. Murphy to the Superior 
     Court of Washington, D.C. I am a senior police executive in 
     the Los Angeles Police Department (LAPD). I had a substantial 
     number of dealings with Ms. Murphy in her capacity as Deputy 
     Chief of the Special Litigation Section of the Civil Rights 
     Division of the United States Department of Justice (DOJ) in 
     connection with negotiation and implementation of a Consent 
     Decree with the LAPD and the City of Los Angeles, relating to 
     the conduct and operation of the police department. Ms. 
     Murphy's and the DOJ objective was to improve the LAPD and 
     she at all times acted honorably, ethically, and 
     intelligently. She never exhibited prejudice or bias or 
     rigidity of position. As a lawyer, I can ensure you that Ms. 
     Murphy will have an exemplary judicial temperament, is highly 
     intelligent, and will render equal justice to all, without 
     bias or favor. Her decisions will be firmly based in the law 
     and will be seen by all sides as fair and just.
       I was President of the Los Angeles Board of Police 
     Commissioners and a member of the team that conducted the 
     negotiations with DOJ. These negotiations took six months 
     during which Ms. Murphy conducted herself with 
     professionalism and in the manner that all attorneys should 
     when in a similar situation. After the negotiations concluded 
     and the decree approved by the court, I returned to private 
     practice. When William Bratton was appointed Chief of the Los 
     Angeles Police Department (Department), he requested that I 
     join the Department and assist in the Department's compliance 
     with the decree. In that capacity I had the opportunity to 
     observe the conduct of Ms. Murphy and again found her to be 
     professional, intelligent and fair. It has been suggested 
     that because Ms. Murphy worked in the Special Litigation 
     Section, she is somehow biased against the police. Throughout 
     the Consent Decree negotiations and implementation, she 
     manifested a clear understanding of the issues facing the 
     LAPD and, where possible, she suggested resolutions that 
     demonstrated her understanding of the job of the police and 
     the pressures facing the officers performing their duties and 
     never exhibited any indication of prejudice against police 
     officers or the Department. She earned the respect and 
     admiration of the LAPD personnel with whom she dealt. As the 
     LAPD's executive in charge of implementation of the Consent 
     Decree, I can assure that as difficult as it was, Ms. Murphy 
     never did anything to cause anyone to feel anyway other than 
     that she was fair and only trying to assist.
       The Consent Decree was negotiated in perfect good faith by 
     the Special Litigation Section and that the goals and 
     intentions of the Consent Decree were in no way a reflection 
     of anti-police bias. Indeed, the Decree augmented police 
     professionalism, promoted officer safety, helped to restore 
     public trust and confidence, and made the LAPD an even 
     stronger law enforcement agency.
       Please let me know if you have any questions about the 
     foregoing. I am available at (213) 486-8730.
           Very truly yours,
                                                     Charlie Beck,
                                                  Chief of Police.
                                                Gerald L. Chaleff,
     Special Assistant for Constitutional Policing.
                                  ____

                                             Lewis, Feinberg, Lee,


                                      Renaker & Jackson, P.C.,

                            Oakland, California, October 28, 2011.
     Re Nomination of Ms. Donna Murphy to the D.C. Superior Court.

     Hon. Joseph Lieberman, Chairman,
     Senate Homeland security and Governmental Affairs Committee,
     U.S. Senate, Washington, DC.
     Hon. Susan Collins, Ranking Member,
     Senate Homeland Security and Governmental Affairs Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Lieberman and Ranking Member Collins: I write 
     in support of the nomination of Ms. Donna Murphy to be a 
     judge of the Superior Court of the District of Columbia. I 
     was Assistant Attorney General for Civil Rights from the end 
     of 1997 to the beginning of 2001 where I became familiar with 
     the work of Ms. Murphy who was an attorney in the Voting 
     Rights and the Special Litigation Sections, two Sections that 
     enforce important civil rights protections. After my time, I 
     understand Ms. Murphy worked in the Housing and General 
     Litigation Section, another high profile Section.
       I recall Ms. Murphy as one of the best lawyers in the 
     Division who was known for her fairness, integrity, smarts, 
     legal skills, dedication, and exceedingly hard work. Ms. 
     Murphy was recognized for her skills and abilities by being 
     assigned some of the most significant and sensitive 
     investigations and cases and for being assigned managerial 
     duties supervising teams of other lawyers. I particularly 
     remember her excellent work in supervising a team of lawyers 
     who prepared and filed a police misconduct case against the 
     Los Angeles Police Department. Back then the LAPD was a 
     police department rife with problems that resulted in harm to 
     minority communities as well as lack of law enforcement for 
     those communities. Today the LAPD is appropriately lauded as 
     a department that deals with minority communities with 
     sensitivity and fairness. Much of the credit for the dramatic 
     difference is attributable to the role played by the Division 
     in the case that Ms. Murphy had so much to do with both in 
     its beginnings, the negotiation of a pioneering consent 
     decree and the implementation of the decree with LAPD 
     leaders.
       I am happy to join predecessors and successors as former 
     Assistant Attorneys General for Civil Rights from several 
     different Administrations who have joined together to support 
     Ms. Murphy's nomination.
       If I can be helpful to the Committee, please feel free to 
     call me.
           Sincerely,
     Bill Lann Lee.
                                  ____



                                Whiteman Osterman & Hanna LLP,

                                Albany, New York, October 7, 2011.
     Re Nomination of Donna Murphy to the Superior Court of the 
         District of Columbia.

     Hon. Joseph Lieberman, Chairman,
     Senate Homeland Security and Governmental Affairs Committee,
     U.S. Senate, Washington, DC.
     Hon. Susan Collins, Ranking Member,
     Senate Homeland Security and Governmental Affairs Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Lieberman and Senator Collins: I write to 
     support the nomination of Ms. Donna Murphy to be a Judge on 
     the Superior Court of the District of Columbia. From 1990 
     until 1993 I worked with Ms. Murphy in the Civil Rights 
     Division of the U.S. Department of Justice where I served as 
     Assistant Attorney General of the Division. During that time, 
     Ms. Murphy was an attorney in the Voting Rights Section and I 
     met regularly with her, reviewing a number of her reports and 
     recommendations concerning very complex and sensitive pre-
     clearance applications pursuant to Section 5 of the Voting 
     Rights Act.
       From those personal interactions, I became very impressed 
     by her legal intellect and her knowledge and commitment to 
     the Division's mission and work. She is extremely smart, 
     hardworking and fair-minded.
       In 2007, for her significant contributions to the work of 
     the Division, Ms. Murphy received the Division's highest 
     award--the John Doar Award for Excellence and Dedication. 
     When, as Assistant Attorney General, I initiated that award, 
     I had in mind a recipient with qualities which Ms. Murphy has 
     faithfully demonstrated in the various assignments she has 
     discharged with distinction.

[[Page 9752]]

       I strongly recommend your confirmation of her nomination 
     and, if I can be of any assistance, would welcome your 
     request.
           Respectfully,
     John R. Dunne.
                                  ____

                                                  August 21, 2011.
     Re: Donna M. Murphy.

     Hon. Joseph I. Lieberman,
     Chairman, U.S. Senate Homeland Security and Governmental 
         Affairs Committee,
     Washington, DC.
     Hon. Susan M. Collins,
     Ranking Member, U.S. Senate Homeland Security and 
         Governmental Affairs Committee,
     Washington, DC.
       I am pleased to write this letter in support of the 
     nomination of Donna M. Murphy to the Superior Court of 
     Washington, D.C. I am a retired police chief and a Past 
     President of the International Association of Chiefs of 
     Police. Since 1998 I have been working with the Special 
     Litigation Section of the Civil Rights Division of the United 
     States Department of Justice (DOJ) in a variety of capacities 
     dealing with police practices and reform. It was during one 
     such assignment that I met and worked with Donna Murphy.
       In 1997, the U.S. DOJ and the City of Steubenville, Ohio 
     entered in to a Consent Decree regarding police practices. I 
     was appointed as an agent of the Federal Court to audit 
     compliance with the Decree. As one can imagine, even though 
     the Decree was negotiated and agreed upon by the parties (the 
     City and DOJ) there was considerable institutional resistance 
     to the changes in police practices outlined in its several 
     requirements. Donna Murphy was the supervisor overseeing line 
     attorneys assigned this matter during the period 2000-03, 
     which was a time when there was heightened resistance to the 
     Decree requirements since the easier tasks had been 
     accomplished and we were moving into an area of serious 
     substantive change.
       There is little doubt that the persistence and leadership 
     of Donna Murphy; moreover her patience and understanding of 
     the issues and obstacles of concern to the City, and to the 
     members of the Police Department, were the basis for much of 
     the progress made with Decree compliance during her tenure. 
     She consistently sought information to insure she had a clear 
     understanding of the organizational and operational 
     difficulties faced by the police and in my opinion, made 
     decisions that were professional and fair to all concerned. 
     Accordingly, I am pleased to add my support for her 
     appointment to the Superior Court of Washington, D.C.
       Please let me know if you have any questions regarding this 
     information.
     Very truly yours,
                                              Charles D. Reynolds,
     Police Practices Consultant.
                                  ____

                                         Blacks in Law Enforcement


                                                   of America,

                               Washington, DC, September 26, 2011.
     Re Ms. Donna M. Murphy.

     Hon. Joseph I. Lieberman,
     Chairman, U.S. Senate Homeland Security and Governmental 
         Affairs Committee, Washington, D.C. 20510
     Hon. Susan M. Collins,
     Ranking Member, U.S. Senate Homeland Security and 
         Governmental Affairs Committee, Washington, DC.
       I am pleased to offer this letter in support of the 
     nomination of Ms. Donna M. Murphy to the Superior Court of 
     Washington, D.C. I am a retired D.C. Metropolitan Police 
     Officer and retired Executive Director of the National Black 
     Police Association (NBPA). The NBPA is an advocacy 
     organization established to work on behalf of African 
     Americans in Law Enforcement involving the prevention and 
     intervention of police abuse and misconduct as well as other 
     criminal justice policies and practices that have a negative 
     impact on people and communities of color.
       After the establishment of the Special Litigation Section 
     of the Civil Rights Division, the organization began to work 
     very closely with the section and its staff attorneys. Ms. 
     Murphy was assigned to work with a variety of cases involving 
     the investigation of police practices in cities that the NBPA 
     had brought to the attention of the Department of Justice.
       Ms. Donna M. Murphy and her staff worked during that time 
     against a great deal of resistance to the necessary changes 
     needed for our nations police departments which most were the 
     results of court ordered consent decree. The National Black 
     Police Association was honored to work with Ms. Murphy and 
     found her very dedicated to the creation of fairness and 
     justice for all involved the consent decree compliance.
       So, as a result of the positive and productive 
     relationships created during my tenure as Executive Director 
     of the National Black Police Association, I am please to add 
     my support to the nomination of Donna M. Murphy to the 
     Superior Court of Washington, D.C.
       Please let me know if there any additional questions 
     regarding this correspondence.
           Sincerely,
                                                Ronald E. Hampton,
                                                         Director.


                       Unanimous Consent Request

  Mr. LIEBERMAN. Madam President, I ask unanimous consent that at a 
time to be determined by the majority leader, in consultation with the 
Republican leader, the Senate proceed to executive session to consider 
the following nominations: Calendar No. 231; that there be 2 hours for 
debate equally divided in the usual form; that upon the use or yielding 
back of time, the Senate proceed to a vote without intervening action 
or debate on Calendar No. 231; that the motion to reconsider be 
considered made and laid upon the table, with no intervening action or 
debate; that no further motions be in order, that any related 
statements be printed in the Record, that the President be immediately 
notified of the Senate's action, and the Senate then resume legislative 
session.
  The PRESIDING OFFICER. Is there objection.
  Mr. McCONNELL. Madam President, Senator DeMint has some concerns 
about this nomination. Therefore, at his request, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LIEBERMAN. Madam President, I am going to keep returning to the 
floor of the Senate in fairness on this nomination. She is such a 
deserving nominee and at least deserves a vote up or down.
  I yield the floor.
  Mrs. MURRAY. Madam President, I ask unanimous consent that following 
my remarks, the Senator from Ohio, Mr. Brown, be recognized, and 
following that, Senator Whitehouse be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  (The remarks of Mrs. Murray pertaining to the introduction of S. 3340 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')


                            The Highway Bill

  Mr. BROWN of Ohio. Madam President, I come to the floor this evening 
to discuss the bipartisan transportation jobs bill that has been 
lingering since March 14. March 14 was pretty early in the construction 
season. If the House had moved as quickly as they should have, if the 
House were not, apparently, held hostage by some tea party members who 
think transportation should be a State issue and the Federal Government 
shouldn't be involved, there would have been so many more jobs created 
in the Presiding Officer's State of North Carolina and in Ohio and 
elsewhere. Those tea party members should think about President 
Eisenhower's legacy when they talk about transportation being a State 
and not a Federal issue.
  The Senate passed this job-creating economic development bill more 
than 100 days ago, but this historically bipartisan highway bill 
remains stalled. We know investments in infrastructure mean jobs 
directly. We know investments in infrastructure mean economic 
development in the future. President Eisenhower and Congress 
established the Interstate Highway System not too many years after I 
was born, in the 1950s. A generation of Americans was set to work 
carving freeways, paving new roads, building bridges and tunnels across 
our great country that allowed people and products to travel across the 
48 States.
  In the 1950s, the 1960s, the 1970s, and the 1980s, we had an 
infrastructure which was the envy of the world--an infrastructure the 
likes of which the world had never seen. Since then, we have not done 
quite so well. Our Nation used our postwar infrastructure boom to 
become an economic superpower, similar to how the GI bill helps 
millions of families who take advantage of it--soldiers, veterans, and 
families--yet at the same time creating prosperity for the whole 
country. Infrastructure building helps those men and women who are 
actually doing the construction, doing the work on the highways and 
bridges and water and sewer systems, but it also helps the companies 
and the workers who are manufacturing the steel and the concrete and 
the glass that goes into infrastructure, and it also helps the 
prosperity of society as a whole.
  A truck leaving Toledo, OH, could be in Miami, FL, in less than a 
day. A

[[Page 9753]]

family could drive from one corner of Ohio--from Conneaut, the county 
my wife was born in--to North Bend on the other end of the State in 
several hours instead of a whole day.
  We know infrastructure investments are forward thinking, with payoffs 
that last for decades, yet also benefit our Nation--our small 
businesses, our workers--both today and for generations to come. So it 
is unacceptable that at a time of still too high unemployment--even 
though the unemployment rate in my State has dropped between 2 and 3 
percent in the last 3 years, it is still too high--Washington 
politicians, for whatever reason, continue to block progress on this 
bill.
  No one in this Congress should be proud of the condition of our roads 
or the safety of our bridges. No one in this Congress should be proud 
of the fact the world's newest airports and most modern train stations 
are not in the United States of America, as they were in the 1950s, 
1960s, the 1970s, and the 1980s. They are being built overseas. No one 
in this Congress should be proud of creating new hurdles to progress, 
of obstruction, when the need is so great for us to create new jobs.
  Historically, infrastructure has been a bipartisan issue. There is no 
so such thing as a Democratic or Republican bridge. The most recent 
extension is slated to expire Saturday at midnight. We can't afford to 
keep passing short-term extensions. We need to think about consequences 
for businesses that plan for the long term. Because Congress keeps 
passing inch-by-inch, month-by-month extensions, businesses can't plan, 
workers can't plan, State departments of transportation can't plan. It 
hurts the contractor, who is unsure whether she will have the funds to 
buy a new bulldozer; the crane operator, who is unsure of where his 
next job will be; and it hurts the small business owner who sells 
aggregate to the construction industry. We cannot afford to keep 
passing the buck with these short-term extensions and disrupting the 
ability of businesses to plan for the future.
  This past weekend I visited El Meson Restaurante, a family-owned 
restaurant located near the I-75 modernization project in West 
Carrollton in Montgomery County, OH, in southwest Ohio, near Dayton. I 
spoke with the owner Bill Castro. I asked him: What happens if the bill 
expires and this project is delayed? He tells me that construction 
surrounding the restaurant has already cut into El Meson's profits. I 
have eaten at that restaurant three or four times. It has always been 
crowded. The food is good, the hospitality is great, and the owners are 
friendly and embracing. It is a great place. But because of this 
delay--which happens from time to time, I understand, and should--he 
has had to scale back his own salary, rather than lower his workers' 
wages and reduce the staff. He knows this is good for Montgomery 
County, for Dayton, and for the Miami Valley, but it is clear if this 
project gets delayed it will do serious damage to his restaurant and to 
the other small businesses in the area.
  It is clear business owners in my State are doing their jobs. It is 
time the House of Representatives does its job and works with us to 
pass this highway bill, then get it back to the Senate and the House so 
we can vote on it. We know what is at stake: Jobs created by 
infrastructure investments are almost always good-paying middle-class 
jobs. Whether they are the construction jobs or the manufacturing jobs 
producing the products that go into the construction, these jobs 
typically provide workers with health care and retirement benefits and 
are the kinds of jobs our neighbors need to create a strong middle 
class. These jobs enable people to buy a home, to save for their 
children's college education, and plan for the future.
  These investments not only create construction jobs, they improve our 
Nation's economic efficiency, obviously creating more prosperity. This 
bill is about rebuilding our infrastructure as much as it is about 
rebuilding our middle class. It is time for Congress to pass the 
highway bill. There is simply too much at stake not to.
  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. WHITEHOUSE. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Supreme Court Decisions

  Mr. WHITEHOUSE. Madam President, this is the week for the Supreme 
Court to release opinions from dozens of cases that it has been 
considering over the past term. In most of these important cases, the 
Court followed its usual practice of allowing the parties to file 
detailed legal briefs and to present oral arguments to make their side 
of the case before the Court reached its decision. In one case, 
however, it decided an issue vital to the ongoing function of our 
democracy, and it decided that case without even allowing the parties 
the opportunity to write legal briefs on the merits and to argue their 
case before the Court.
  In the Montana case, American Tradition Partnership v. Bullock, the 
Court's five-man conservative bloc doubled down on a historic error 
they made 2 years ago in Citizens United. Citizens United, I am 
confident, will mark one of the lowest points in the Supreme Court's 
history.
  The case will ultimately stand alongside Lochner v. New York and 
other such decisions in the Supreme Court gallery of horrible 
decisions.
  A telltale of these horrible court decisions is that they create 
rights of the powerful against the powerless, turning the very concept 
of ``rights'' inside out. Ordinarily, a right is something that stands 
against power. That is why it is carved out as a right; it is because 
it offends against the power structure, and yet we value it and we 
defend it. And our courts have as their very purpose in our system of 
government the purpose to be the guardians of those rights, the 
guardians of those rights against whatever the structure of power is in 
our society. That is why we give judges long or lifetime tenure. That 
is why conflicts of interest in the judiciary are so particularly 
concerning. That is why some decisions we take away from officialdom 
entirely and give them to a jury of our peers. That is why it is a 
crime to tamper with a jury. We do all of those because we want 
courtrooms insulated from power so that courts can do the essential 
work of protecting rights against the predations of power.
  Look at the Lochner decision, for instance, and see how that Court 
turned the whole question of rights inside out. Seeking to defend the 
prevailing economic power structure, the Supreme Court held that bakers 
had a constitutional right--under a theory of freedom to contract--to 
agree to work whatever hours their employers wanted to make them work, 
without overtime, without rest, a right on the part of the bakers to 
enter into a contract where their employers could tell them they could 
make them work whatever they wanted. Looking back now, that seems 
almost silly, but if you were a judge affiliated with an economic 
structure that saw workers as essentially disposable, this question of 
workers' rights to work reasonable hours seems, well, unreasonable. And 
the Lochner decision justifiably lies on the junk pile of judicial 
history, a broken monument to the prejudice and error of that Court.
  Citizens United and now the Montana decision join this gallery of 
judicial horribles. Here, the right they turned inside out is the right 
of free speech, and the power structure served is the vast and 
unprecedented corporate power structure that exists today.
  Under Citizens United, under this inside-out right they have created, 
you now enjoy the free speech right to hear as much corporate speech as 
they want to bombard you with. If you are a regular human, you are on 
your own. If you are a CEO, you can access your corporate treasury to 
drown out the voices of all of your workers. If you are a massive 
multinational corporation or if you are a billionaire or a 
multibillionaire, you now have a right to dominate the paid media 
airwaves, and we have the free speech right to have to listen to all of 
that.
  At least if you are a billionaire, you are still a human being. And I 
don't

[[Page 9754]]

say this judgmentally; this is a legal fact. If you are a corporation, 
you have no soul, you have no conscience, you have no altruism. You 
have none of the characteristics that are special to humankind. You are 
a legal fiction. You are a financial mechanism created for the massing 
and the efficient use of capital. In the economic sphere, the value of 
that corporate structure is immense, there is no doubt about it. It has 
provided great value to our society. But in the political sphere, it is 
dangerous. But for these five Justices who constantly support corporate 
interests, to protect the power that comes from being able to provide 
or promise or threaten massive anonymous expenditures on political 
attack ads, well, that is just how you see the world.
  One day the Citizens United decision will lie next to Lochner on the 
junk pile of judicial error and prejudice. There is too much wrong with 
it for it ultimately to survive. But, sadly, today is not that day, and 
the five conservative Justices have chosen, instead of correcting their 
error, to double-down on it.
  The central and deeply flawed premise of Citizens United was the 
conservative majority's declaration that vast corporate independent 
expenditures ``do not give rise to corruption or the appearance of 
corruption.'' They had no record on which to make that decision. None 
had ever run in an election before. They had no basis for making that 
decision, but that was the declaration they issued.
  First, whether independent expenditures by corporations pose dangers 
of corruption or dangers of the appearance of corruption is a factual 
question that depends on the actual workings of the electoral system. 
Supreme courts aren't supposed to make findings of fact. So one of the 
first errors in the Citizens United decision was that they drove off 
the road of proper judicial procedure, across the rumble strip, and 
they started making findings of fact--and they did so in a very 
dangerous way.
  The peculiar way the conservative Justices brought the Citizens 
United question before the Court deprived the Court of any opportunity 
to consider a record. Ordinarily, the Supreme Court has a record that 
comes up to it from the court decisions below. But, as my colleagues 
may recall, the parties in Citizens United did not ask the Court to 
consider the constitutionality of limiting corporate independent 
expenditures. That was not addressed below. What happened is that the 
conservative Supreme Court Justices took it upon themselves to ask a 
new question and to answer that question they themselves had asked. In 
doing it this way, the Justices simply declared, with no factual basis, 
that massive, independent corporate expenditures posed no risk of 
corruption to our elections. They were wrong, as is obvious to most 
people.
  The case the Court decided today, American Tradition Partnership, 
created an opportunity for the Court to have dug itself out from the 
colossal mistake it made in Citizens United. It is an interesting 
background in comparison to Citizens United because the case came out 
of Montana, where there is an extensive record within the State of 
Montana of historical evidence of immense corruption created in that 
State by corporate influence and corporate campaign money dating all 
the way back to the copper barons who bought and sold Montana State 
government in the bad old days. The Montana court also found 
substantial evidence that Montana voters believe that corporate 
election expenditures lead to corruption and that this belief has 
contributed in Montana to widespread cynicism and low voter turnout. 
Those were findings of fact based on an actual record, and the Montana 
Supreme Court carefully reviewed those findings of fact. That is what 
it is supposed to do--not make findings of fact but review them. The 
Montana court concluded that the State had a compelling interest 
justifying the law based on the evidence in the record.
  The corporations then came in and asked the U.S. Supreme Court to 
overrule the Montana Supreme Court's decision, arguing that it was 
inconsistent with Citizens United. At that point, I joined with Senator 
John McCain, who has long been a national leader on campaign finance 
issues, in filing a bipartisan amicus brief with the Supreme Court. In 
our brief, Senator McCain and I challenged that central premise in 
Citizens United--that phony premise about the corrupting potential of 
outside political expenditures being nonexistent. The extensive factual 
record developed in Montana and the facts that have developed since 
Citizens United on the ground nationally provided the Court with plenty 
of evidence--evidence that it lacked because of the way it had 
approached Citizens United.
  Our brief showed that Citizens United stood on a pair of false and 
flawed factual assumptions about our elections. First, the Citizens 
United decision assumed that outside political expenditures were going 
to be independent, that they were not going to be coordinated with 
political campaigns. Second, the Citizens United majority assumed that 
there would be disclosure of what special interests were paying for the 
ads. Both of these assumptions are demonstrably wrong. The ongoing 
Presidential and congressional races reveal close coordination between 
campaigns and these so-called independent expenditures. Wealthy donors, 
who have maxed out their contributions to the candidate, now can use 
candidate-specific super PACs as convenient proxies to make the 
functional equivalent of excess campaign contributions. Campaigns and 
their super PACs have closely connected staff, they have shared 
consultants, they openly coordinate on fundraising, and they work 
together on advertising, with super PACs acting, actually, as the 
successful surrogates for the candidates in States where the candidate 
has made few appearances or spent little money on advertising. Indeed, 
in the Republican Presidential primary a candidate-specific super PAC 
for Senator Santorum spent millions and won the Minnesota primary for 
Senator Santorum when the candidate himself had no money to spend.
  These vast expenditures are not just coordinated closely with 
candidates and campaigns, they are anonymous, with the special 
interests behind the ads keeping themselves secret from the American 
public. As everybody in this Chamber and every American who has a 
television set knows, the decision in Citizens United opened the 
floodgates to unlimited corporate and special interest money pouring 
into our elections. Using phony shell corporations, 501(c) 
organizations, and super PACs, outside groups can now spend--or, 
importantly, they can credibly threaten to spend because that can have 
a big effect in politics--overwhelming amounts of money in support of 
or against a candidate without any publicly disclosed paper trail.
  Although the secretive interests behind the anonymous spending may be 
hidden from voters, they may be hidden from regulators, they may be 
hidden from prosecutors, they may be hidden from the media, they will 
not be hidden from the candidate. They will be well known to the 
candidate. That alone allows for an undetectable quid pro quo 
corruption, as the wealthy outside interests can award a candidate with 
massive, anonymous spending.
  Worse than that is a type of corruption I touched on a moment ago 
when I talked about threats--a corruption made possible by the Citizens 
United decision that went completely unconsidered by the U.S. Supreme 
Court. They never even mentioned it. That is the ability to threaten 
large and secret expenditures without actually having to make them. A 
candidate could be quietly warned that if they don't take the right 
position on this issue, if they don't vote right when the amendment or 
the bill comes up, they will be punished with a large expenditure 
against them.
  Now, how is that a threat under Citizens United? Before Citizens 
United, if a corporation wanted to threaten a politician, the threat 
would mean a $5,000 PAC contribution to the politician's opponent. It 
would mean maybe some fundraising and bundling by the corporate 
executives and by the corporate lobbyists. I suppose that is something 
a

[[Page 9755]]

candidate wouldn't necessarily want, but it is not a very big deal. It 
happens all the time. And I don't think it throws much weight around 
here.
  Today, after Citizens United, the threat isn't of $5,000 and a couple 
of fundraisers, the threat is of unlimited, anonymous corporate 
spending against you--enough to defeat or elect a candidate. And if 
this threat succeeds, the real danger is that there is no record 
whatsoever of the corrupt deal for regulators, prosecutors, and media 
outlets to track.
  Sherlock Holmes famously talked in one of his decisions about the dog 
that didn't bark. In political corruption, we need to be concerned 
about the ad that didn't run--the ad that didn't run because the 
politician obediently did what he or she was told.
  The brief Senator McCain and I authored laid all of this before the 
Court. We documented the close coordination between campaigns and this 
so-called independent spending. We detailed the tangled web of 
corporate 501(c) and super PAC relationships that allow wealthy 
interests, special interests, to hide their spending from the public, 
and we explained the various ways these forms of coordinated identity 
laundering by special interests create the real threat of quid pro quo 
corruption. As we said in our brief, ``The campaign finance system 
assumed by Citizens United is no longer a reality, if it ever was.'' 
And, frankly, I don't think it ever was.
  Confronted with the actual facts on the ground in Montana and 
nationally, the Supreme Court's conservatives decided they were going 
to ignore the evidence. There is a blindfold on Lady Justice. But the 
blindfold on Lady Justice as she holds her scales aloft is supposed to 
be blindness to the parties who are before her. It is supposed to be 
blindness to what the interests are. It is not supposed to be a 
considered and deliberate blindness to the evidence and the facts. But 
in this case, that is the blindness the Supreme Court has deliberately 
imposed on itself--or at least the five conservative Justices have.
  This conservative bloc has decided to perpetuate the error of 
Citizens United without considering the facts. Montana will not have an 
opportunity to file briefs on the merits, explaining the importance of 
its laws to protect against the corruption that is its historic 
experience. The attorney general of Montana will not have the 
opportunity to stand before the Justices to defend his State's law. 
Once again, the Court has kept from itself any relevant record that 
might present uncomfortable facts.
  In Citizens United, the conservative Justices asked themselves to 
decide a major constitutional case without any lower court record. And 
now that they have a fully developed lower court record to proceed on 
that happens to show how wrong they were, they have no interest in even 
looking at that record.
  We need to act now to fix our broken campaign finance system. The 
Supreme Court had the chance to correct its error. These five 
conservative Justices refused to correct their error. They doubled down 
on their error. They have ignored the evidence of their error that we 
all see around us, so we cannot wait. We know why they are doing it. We 
know what is going on. We know it is not going to happen from this 
Supreme Court, not from those five Justices, so we need to fix this on 
our own. Americans of all political stripes, whether you are an 
occupier or tea party, they are disgusted by the influence of unlimited 
and anonymous corporate cash pouring into our elections, and by 
campaigns that succeed or that fail depending on how many billionaires 
support the candidate.
  More and more, people in my home State of Rhode Island and around the 
country believe their government responds only to wealthy special 
interests. They see jobs disappear and wages stagnate and bailouts and 
special deals for the big guys and they lose faith that elected 
officials here in Washington are listening to them.
  (Mr. MERKLEY assumed the Chair.)
  For now we are left with one weapon in the fight against the 
overwhelming tide of secret special interest money, and that one weapon 
is disclosure. Let the sun shine in. At least let the American public 
know who is behind these massive expenditures.
  Earlier this year I introduced the DISCLOSE Act of 2012. I had 
immense help from the Presiding Officer, Senator Merkley, in doing that 
work. We call it DISCLOSE 2.0. This legislation will shine a bright 
light on all of this spending by these powerful special interests.
  With this legislation, which now has 44 Senators cosponsoring it, 
every citizen will know who is spending these great sums of money to 
get their candidates elected and to influence our elections. Passing 
this law would begin to remove the dark cloud of unlimited secret money 
that the Supreme Court has cast over our American elections.
  The DISCLOSE Act includes a narrow and reasonable set of provisions. 
We have trimmed it down so that it should have wide support from 
Democrats and Republicans. A great number of my Republican colleagues 
in this body are on record that disclosure and transparency are 
essential in campaign finance, so we have made every effort to craft an 
effective and a fair proposal while imposing the least possible burden 
on the covered organizations.
  As Trevor Potter, a Republican, former Chairman of the Federal 
Election Commission, said in a statement submitted to the Rules 
Committee: Disclose 2.0 is ``appropriately targeted, narrowly tailored, 
clearly constitutional and desperately needed.''
  The same cannot be said for the conservative majority's holding in 
Citizens United, echoed again today in American Tradition Partnership. 
The conservative Justices' desire to maintain their error and to keep 
the corporate money flowing represents a sad, sad day in the history of 
the Court. It will, as I said earlier, one day be corrected. One day, 
Citizens United will lie next to Lochner v. New York and other 
decisions that have disgraced the Court in the past on the junk heap of 
judicial history. But until that day, it is up to all of us to work 
together to restore control of our elections, to restore control of our 
democracy, to put it back in the hands of the American people, to 
assure that we continue a government of the people, by the people, and 
for the people--not a government of the big corporations, by the big 
corporations, and for the big corporations.
  I yield the floor.

                          ____________________