[Congressional Record (Bound Edition), Volume 160 (2014), Part 5]
[Senate]
[Pages 6175-6184]
[From the U.S. Government Publishing Office, www.gpo.gov]




 NOMINATION OF MICHELLE T. FRIEDLAND TO BE UNITED STATES CIRCUIT JUDGE 
                    FOR THE NINTH CIRCUIT--Continued

  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the 
Senator from North Carolina and I be allowed to engage in a colloquy 
for 20 minutes, and following that the Senator from Iowa be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Student Athletes

  Mr. ALEXANDER. Mr. President, the Senator from North Carolina and I 
were both involved in intercollegiate athletics. He was a scholarship 
athlete at Wake Forest University and I was a nonscholarship track 
person at Vanderbilt University several years before that.
  We are here today to make a few comments on the recent ruling by a 
regional director of the National Labor Relations Board that defines 
student athletes as employees of the university. It affects only 
private universities for now--not the University of Tennessee. But it 
would affect Wake Forest, where the Senator from North Carolina was an 
outstanding football player, and it would affect Vanderbilt, where I 
attended.
  I guess our message to the NCAA and intercollegiate athletes is: We 
hope they will understand the opinion of one regional director of the 
National Labor Relations Board is not the opinion of the entire Federal 
Government. That is the message I would like to deliver.
  I would refer back--and then I will go to the Senator from North 
Carolina--to 25 years ago, when I was the president of the University 
of Tennessee, and I was asked to serve on the Knight Commission on 
Intercollegiate Athletics. It was headed by the president of North 
Carolina, Bill Friday, and the head of Notre Dame, Father Hesburgh--a 
pretty distinguished group of individuals from around the country--to 
take a look at intercollegiate athletics.
  The major conclusion they came to was that presidents need to assert 
more institutional control over athletics. But here is something that 
this group of university presidents and others emphasized. They said:

       We reject the argument that the only realistic solution to 
     the problem [of intercollegiate athletics]--

  And there have always been some--

     is to drop the student-athlete concept, put athletes on the 
     payroll, and reduce or even eliminate their responsibilities 
     as students.
       Such a scheme has nothing to do with education, the purpose 
     for which colleges and universities exist. Scholarship 
     athletes are already paid in the most meaningful way 
     possible: with a free education. The idea of intercollegiate 
     athletics is that the teams represent their institutions as 
     true members of the student body, not as hired hands. Surely 
     American higher education has the ability to devise a better 
     solution to the problems of intercollegiate athletics than 
     making professionals out of the players, which is no solution 
     at all but rather an unacceptable surrender to despair.

  This was the Knight Commission 25 years ago.
  I would ask the Senator from North Carolina, does he not think that 
while there may be some issues with intercollegiate athletics--and we 
could talk about what some of those are--that unionization of 
intercollegiate athletics is not the solution to the problem?
  Mr. BURR. Let me say to my good friend, the Senator from Tennessee--
who not only was a walk-on track member at Vanderbilt, but was the 
president of the University of Tennessee, the Governor of Tennessee, 
the Secretary of Education, and now is a Senator--his credentials allow 
him to say whatever he wants to on this issue with a degree of 
knowledge.
  It was Teddy Roosevelt who identified the challenge of college 
football, and through his attempt to get Harvard and Yale and a couple 
of other universities to address the risk, the NCAA was created.
  The amazing thing to Senator Alexander and myself is that we have 
this governing body today that by all practical observations has done a 
great job of regulating college sports. It is the reason we have 
fabulous playoffs. It is the reason we have integrity in the 
scholarship system. But, more importantly, it is the reason we have 
top-quality athletes who go into these schools, where less than 1 
percent become pros. Ninety-nine percent of them are reliant on a great 
education for a fabulous outcome in life. To do anything that changes 
the balance of what they have been able to create is ludicrous and I 
think what troubles me, and I think it troubles Senator Alexander.
  These are not some misguided college football players. This is the 
United Steelworkers. Let me say that again because I do not think 
people understand it. This is the United Steelworkers who have put up 
the money so that these players from Northwestern would go to the NLRB 
and say: We want to unionize at Northwestern University. Well, on the 
face of it, it creates a great inequity between public and private 
schools, where we have a governing body that tries to make this process 
as equitable as it can.
  But let me make this point: If you want to drive the rest of the 
schools out of major sports, then do this. Only 10 percent of our 
Nation's athletic programs make money. That means 90 percent of them 
lose in the athletic department. But for the quality of life of all 
students, not just athletes, they continue and their alumni continue to 
subsidize it.
  I agree with my good friend from Tennessee. This would be a huge 
mistake, and it is time for those players at Northwestern to think 
about more than those individuals who have fronted them the money to 
bring this case.
  Mr. ALEXANDER. I thank the Senator from North Carolina.
  The question should be obvious: What does a student at Wake Forest or 
Vanderbilt or--and we are using the private universities, again, 
because those are the only ones affected by this decision for now--but 
if you are at Vanderbilt University, according to the vice chancellor, 
the total scholarship could

[[Page 6176]]

be nearly $60,000. That is the value each year of your athletic 
scholarship. Times four--so you are up to one-quarter of a million 
dollars.
  The College Board says--roughly estimates--that a college degree adds 
$1 million to your earnings during a lifetime.
  So the idea that student athletes do not get anything in return for 
their playing a sport is financially wrong. And just speaking as one 
individual who had the privilege to participate for 2 years as a 
student athlete without getting anything--I had scholarships, but they 
were not athletic scholarships--the discipline, the memories, the 
competition, the chance to be in the Southeastern Conference 
Tournament--that is very important to me. It was then, just as 
athletics always is. It is a rare privilege to participate in 
intercollegiate athletics.
  The presidents have looked at the problems of intercollegiate 
athletics. And there are some. But people forget--and I know the 
Senator from North Carolina is aware of this. But let's say you are at 
Vanderbilt and you have a $58,000 scholarship--tuition, room and board 
but your total costs are over $60,000 and let's say you come from a 
poor family that has no money and you are put in the embarrassing 
position of not having walking-around money, money to go out and get a 
hamburger, or whatever you want to do.
  Forty percent of student athletes in America also have a Pell grant 
similar to 40 percent of all students in America have a Pell grant, and 
the Pell grant can be, on average, $3,600. So that is $300 a month that 
could be added.
  Now, perhaps there are other issues that ought to be addressed. But I 
wonder if the Senator from North Carolina would speak more about one 
thing he talked about. I imagine Florida State, the University of 
Tennessee, Stanford, maybe Wake Forest--they will all be fine with a 
more expensive athletic program. But what is going to happen to the 
smaller schools? What is going to happen to the minor sports? What is 
going to happen to the title IX women's sports if for some reason a 
union forces universities to have a much more expensive athletic 
program for a few sports?
  Mr. BURR. Well, let me say to my good friend from Tennessee, I will 
quote the words of Wake Forest President Nathan Hatch, a former provost 
at Notre Dame, in an editorial he wrote in the Wall Street Journal just 
this week.
  He says:

       To call student-athletes employees is an affront to those 
     players who are taking full advantage of the opportunity to 
     get an education. Do we really want to signal to society and 
     high-school students that making money is the reason to play 
     a sport in college, as opposed to getting an education that 
     will provide a lifetime benefit?

  President Patrick Harker, president of the University of Delaware, in 
the same article said:

       Turning student athletes into salaried employees would 
     endanger the existence of varsity sports on many college 
     campuses. Only about 10 percent of Division I college sports 
     programs turn a profit, and most of them, like our $28 
     million athletic program at the University of Delaware, lose 
     money. Changing scholarship dollars into salary would almost 
     certainly increase the amount schools have to spend on 
     sports, since earnings are taxed and scholarships are not. In 
     order just to match the value of a scholarship, the 
     university would have to spend more.

  At Wake Forest, let me say, today a scholarship is worth $45,600 in 
tuition in fees, $15,152 in room and board, $1,100 in books. I will say 
to my good friend from Tennessee, I am not sure if there is still $15 
of laundry money a month that exists under a scholarship. That is what 
it was when I was there. I daresay I hope it is more than that today 
because I do not think you can do laundry for $15 a month.
  Mr. ALEXANDER. I wonder if I can ask the Senator to reflect a little 
bit on some of the practical consequences of a student athlete suddenly 
finding himself thought of as an employee of the university. I wonder, 
for example, would the employee of the university, the quarterback or 
whatever position he plays, have to pay taxes on his income? I would 
think so.
  I was thinking about the recent changes in Federal labor law that 
allow for micro-unions. Almost any little group can petition the 
National Labor Relations Board, under the Obama administration's views, 
to become a union. I wonder if quarterbacks would become a micro-union. 
They would say: We are more important. Look at the NFL. They get paid a 
lot more. We want a bigger scholarship than others.
  I wondered about five-star recruits. Let's say there is a terrific 
defensive back--as I am sure Senator Burr was when he was in high 
school. He had five stars from all the recruiting services. Would the 
private schools who are unionized go out and compete to see who could 
pay the highest compensation to the five-star recruits, a lot less to 
the walk-on, maybe less for a three-star. What are the practical 
consequences of a student athlete suddenly finding himself defined as 
an employee of the university under the National Labor Relations Act?
  Mr. BURR. Let me say to my good friend, as one who remembers August 
practices in the South--hottest time of the year, three practices a 
day--the first thing I would bargain out for all players is that I 
would have to get my ankles taped at 4:30 in the morning, that I would 
have to go all day and most of the night, and that I could not take 
that tape off until 8:30 after three practices.
  I would negotiate away the smell of dead grass in August, a memory 
every college football player, as a matter of fact every football 
player, has of that dead grass in summer practice in hot weather.
  I plead with those who play today: Do you truly believe you can form 
a team if in fact you have individuals who negotiate individual things 
for themselves? If quarterbacks negotiate they cannot be hit, how good 
is the club? But where is the team? If individuals find that it is 
advantageous to them because they are stars and they can negotiate it, 
where have we lost the sense of team sports?
  The Senator from Tennessee mentioned this to begin with: College 
sports is a lot about the experience. It builds character. It builds 
integrity. It builds drive. It builds resilience. It is not the only 
thing in life that does it, but to me, for many individuals, for many 
young men and women, this is the most effective way for them to become 
leaders. I might say it is very much the style of our training in the 
military. As we raise those young officers, they go through a very 
regimented training.
  Imagine what it would be like if we allowed the military to 
collectively bargain. Let me tell you, none of us would feel safe at 
night because we don't know exactly what they have gone through. Today 
we feel safe because we know they have all gone through the same thing.
  Mr. ALEXANDER. Mr. President, I think our time is coming toward a 
close, but we have about 5 minutes left. Then we will be looking 
forward to the comments of the Senator from Iowa. We thank him for his 
courtesy in allowing us to go ahead.
  I guess the message--I particularly enjoyed hearing the Senator from 
North Carolina. The message today is directed at two groups. One is to 
the NCAA, which is to say, do not think that the attitude of one 
Regional Director of the National Labor Relations Board reflects the 
view of the U.S. Government. It does not. The other is to the student 
athletes. Think about the value of the opportunity you have.
  Here are two former student athletes of varying talents who benefited 
enormously from that. There are many others who would say the same. The 
university does not owe us anything. We owe the university--at least 
that is the way I feel about it--for the privilege of competing, for 
the privilege of attending. If I had a scholarship, that would have 
been even better--just the privilege of participating.
  To the NCAA, the members of the NCAA have talked about issues such as 
should we provide more expense money for athletes. I mentioned earlier 
that 40 percent of them have Pell grants which can go up to $5,600 a 
year in addition to their $55,000 or $60,000 of football scholarships. 
So think about that. That was considered by the NCAA and voted

[[Page 6177]]

down because the small schools said: It will hurt us. Women's programs 
said: We will have to drop women's programs.
  So this is more complicated than it would seem at first. What about 
health care? Of course, a student athlete can be covered by his 
parents' health care insurance. Under the Affordable Care Act, I am 
sure many on the other side would be quick to say, they would always be 
able to be insured for any sort of preexisting condition, but these are 
issues that can be properly looked at by the NCAA.
  Unionization, in my opinion, would destroy intercollegiate athletics 
as we know it. I think we should look back to the opinion of the Knight 
Commission, headed by Bill Friday of North Carolina and Ted Hesburgh of 
Notre Dame, and reaffirm that the student athlete is not a 
professional, not a hired hand. He or she is a student. One percent of 
the athletes in this country--there may be problems to solve, but the 
universities and the NCAA can address those problems. Unionization is 
not the way to do it.
  Mr. BURR. I just wanted to address one last thing; that is, the claim 
that this case was all about health care. The Senator from Tennessee 
has pointed out as well the options that we have today. But let me 
speak from a firsthand experience: a college athlete, four operations--
two knees, an elbow, a finger. Probably the only record I hold at Wake 
Forest is the total number of inches of scars on my body. Because of 
modern medicine, that record will not be broken because they do not do 
surgery that way anymore.
  But I think it is best summed up by our current Secretary of 
Education, Arne Duncan, when he said this:

       When sports are done right, when priorities are in order, 
     there is no better place to teach invaluable life lessons 
     than on a playing field or court. . . . Discipline, 
     selflessness, resilience, passion, courage, those are all on 
     display in the NCAA.

  Why would we do anything to risk that? Not only do I believe this is 
risky, I think just a consideration of it is enough to make us--or 
should make us reject this quickly, not embrace it.
  I thank my colleague from Tennessee.
  Mr. ALEXANDER. I thank my colleague from North Carolina.
  I thank the Senator from Iowa for his courtesy in allowing us to go 
ahead.
  Some 50 years ago, I had the opportunity to compete in track and 
field for Vanderbilt University. Unlike my colleague from North 
Carolina, who as a fine defensive back at Wake Forest University, there 
was no athletic scholarship available for me. But I was fortunate 
enough to be a member of a record setting team.
  Twenty-five years ago, while I was president of the University of 
Tennessee, I was asked to serve on the Knight Commission on 
Intercollegiate Athletics. The Knight Commission was created in October 
1989 in response to a series of scandals in college sports. After 18 
months of careful study, our 22-member commission issued a report 
called ``Keeping the Faith with the Student-Athlete: A New Model for 
Intercollegiate Athletics.''
  Our central recommendation was that college presidents needed to 
exercise stronger control of their athletics programs to ensure their 
academic and financial integrity. And our guiding principle in making 
that recommendation was that athletes are students first, not 
professionals. We wrote:

       We reject the argument that the only realistic solution to 
     the problem is to drop the student-athlete concept, put 
     athletes on the payroll, and reduce or even eliminate their 
     responsibilities as students.
       Such a scheme has nothing to do with education, the purpose 
     for which colleges and universities exist. Scholarship 
     athletes are already paid in the most meaningful way 
     possible: with a free education. The idea of intercollegiate 
     athletics is that the teams represent their institutions as 
     true members of the student body, not as hired hands. Surely 
     American higher education has the ability to devise a better 
     solution to the problems of intercollegiate athletics than 
     making professionals out of the players, which is no solution 
     at all but rather an unacceptable surrender to despair.

  The Knight Commission's perspective on student athletes could not be 
more different to the perspective in the recent decision, issued by a 
regional director of the National Labor Relations Board in Chicago, to 
treat athletes as employees and permit them to form a union.
  Student athletes are found throughout all levels and at all types of 
colleges--small through large, but those that receive athletic 
scholarships are only at division I and II schools. Division III 
schools are not allowed to award athletic scholarships.
  For the purposes of the NLRB decision, we are talking about an even 
smaller subset of athletes--scholarship athletes at private 
institutions like Notre Dame, Vanderbilt, and Stanford. For example, as 
a non-scholarship athlete at Vanderbilt, I would not have been able to 
unionize. Senator Burr, on the other hand was given a scholarship to 
play defensive back at Wake Forest. He would be allowed to unionize.
  In 2011, there were roughly 25 million undergraduate students; 9 
million Pell recipients, which is approximately 36 percent of 
undergraduate students. In addition, there were 177,000 scholarship 
athletes enrolled in bachelor programs at public and private 
institutions. This is approximately 1.7 percent of all students in 
bachelor's programs. Of those, 71,000 received Pell Grants, 
approximately 40 percent of scholarship athletes. The number of 
scholarship athletes at private institutions enrolled in a bachelor's 
program was 104,000, approximately 4.2 percent of private students in 
bachelor's programs. Of those, 43,700 received Pell Grants, 
approximately 42 percent of private scholarship athletes.
  The total number of division I and II schools is 662 of which 283 are 
private institutions. In division I the total is 350 with 119 of them 
being private, while the division II total is 312 with 164 private.
  Athletic scholarships are limited to only tuition and fees, room and 
board, and required course-related books. At Vanderbilt the total 
scholarship could be as much as $58,520 which is a combination of 
$42,768 for tuition, $14,382 for room and board, and $1,370 for books. 
At Stanford the total scholarship could be as much as $59,240 which is 
a combination of $44,184 for tuition, $13,631 for room and board, and 
$1,425 for books.
  Contrast that with the University of Tennessee where the scholarship 
total could be up to $21,900 consisting of $11,194 for in-state 
tuition, $9,170 for room and board, and $1,536 for books.
  Scholarship athletes may also combine other sources of financial aid, 
namely Federal or State need-based aid or earned entitlements, in order 
to cover the full cost of attendance. These include, Pell Grants, 
Supplemental Education Opportunity Grants, work-study, State grants 
based on need using Federal need calculations such as Tennessee's HOPE 
Scholarship and veterans programs such GI Bill or post
9/11 GI Bill.
  Athletic scholarships are awarded in most cases by the athletic 
department which encourages an athlete to complete the federal 
application. If an athlete is determined to have a need, then the 
financial aid office awards the need-based aid, Federal, State, or 
both. A student athlete is restricted to the institutional cost of 
attendance when combining other aid with their scholarship, unless they 
are using their Pell Grant or a veterans benefit. Thus a student 
athlete with need could receive a full scholarship covering all costs 
and receive additional funds.
  Only 1 percent of student athletes will ever play professional 
sports. For the remainder, their college degree is the primary benefit 
of participating in college sports. According to the College Board, the 
value of a college degree is $1 million over an individual's lifetime. 
As a former student athlete, who wasn't on scholarship, I can speak 
from experience that the value of college athletics goes beyond the 
money. It can enrich every aspect of our education, teaching lessons 
and developing habits that will pay dividends no matter what a student 
pursues in life.
  Unfortunately, the problems the Northwestern football players are 
concerned with are not unique to Northwestern and they are not new. 
These problems include: the NCAA does not

[[Page 6178]]

currently allow a full-ride athletic scholarship to cover the actual 
full cost of attendance; Other expenses include: transportation costs; 
health fees; student activity and recreation fees and personal expenses 
allowable under Federal financial aid rules.
  For example, a full-ride scholarship at Vanderbilt University is 
worth $58,520 but the full cost of attendance is calculated by the 
school to be $62,320. The difference must be made up by the student.
  For some student athletes, the lingering effects and potential 
disabilities will be felt for many years after their playing days are 
over. Some students are asking for long term medical coverage to help 
them cover costs of treating these injuries. Schools could provide for 
some form of additional medical coverage.
  While playing sports has certain inherent risks, we do know more now 
than ever before about how injuries can be avoided. Better protections 
from injury--football concerns with concussions. Schools can take, and 
some are taking, steps to improve the safety of their student athletes.
  Some students are asking for help to finish their education even when 
athletic eligibility has run out.
  There is money available to address these concerns and take care of 
our student athletes without unions.
  The NCAA and the member universities do need to reform their rules 
and guidance; and they will.
  Earlier this week we spoke to David Williams, Vanderbilt University's 
athletic director, who had this to say:

       The NCAA and its member universities have the authority and 
     the responsibility to correct the flaws that exist in the 
     system today, many of which are mentioned by the student 
     athletes at Northwestern University. The question is do we 
     have the will to do so. I believe we do and that we will.

  Mark Emmert the President of the NCAA, quoted in a recent Meet the 
Press interview said:

       We have twice now had the board of the N.C.A.A. pass an 
     allowance to allow schools to provide a couple of thousand 
     dollars in what we call ``miscellaneous expense'' allowances. 
     . . . The board's in favor of it. The membership, the more 
     than a thousand colleges and universities that are out there, 
     the 350 of them that are in division one had voted that down. 
     We're in the middle right now of reconsidering all that. I 
     have every reason that that's going to be in place sometime 
     this coming year.

  What would actually happen if college sports teams were unionized? 
Well, David Williams, Vanderbilt's athletic director, said:

       The decision by the NLRB regional board has the power to 
     change the structure, dynamics and maybe the effectiveness of 
     college athletics. It may ultimately end college athletics as 
     we know it today.

  I agree with this statement. And think those who support turning 
college athletes into employees and unionize them should consider the 
potential consequences. One potential consequence relates to taxes. 
This recent decision, in essence, may require the entire scholarship to 
be treated as compensation thus making the whole amount taxable.
  Another consequence of potential collegiate unionization relates to 
labor. One of the most commonly thought of traits when a union 
represents a workforce is the right to strike. Section 13 of the 
National Labor Relations Act, NLRA, expressly provides the right of 
employees to strike, with some exceptions. If a unionized college 
baseball team doesn't like the coaches' decision to switch practice 
times, they could decide to walk off the field right before the first 
pitch is thrown, and call a strike.
  The NLRA requires the union and employer to bargain over wages, 
hours, and other conditions of employment. If a football team joins a 
union, will the union negotiate different compensation amounts 
depending on the player's position or contribution to the team? For 
example, a five star quarterback in high school could decide to attend 
Notre Dame, because the players' union promises to negotiate a larger 
scholarship package for him, but the one star, offensive lineman may 
only get the bare minimum. This could lead to a team and its union 
making value judgments based on the on-field contributions of a player.
  What about when a coach decides to change the offensive scheme from a 
pro-style offense to the wish-bone. A union wide receiver might have a 
grievance because this could effect the ``condition of employment,'' in 
that his role on the team could be diminished. Under the NLRA, a 
decision like that would have to be bargained for. A coach could not 
unilaterally change the playbook without approval of the union.
  But let's say that a wide receiver decides to go directly to the 
coach to discuss his grievance about switching offensive schemes. Under 
the act, that conversation will not be a one-on-one between the coach 
and the player. Instead, a union representative has the right to be 
present at that meeting. And instead of resolving the issue internally, 
the Federal government through the NLRB, or possibly the Federal courts 
could have the final say.
  The current NLRB has struck down several employee conduct policies 
and handbooks, because they violate an employee's section 7 right to 
``concerted activity'' under the NLRA. Will the NLRB now turn its 
attention to and interfere with the player conduct policies that 
schools require of their players?
  The NLRB issued a 2011 decision in Specialty Healthcare, that 
permitted unions to organize, multiple, small groups of employees 
within a single workplace, known as ``micro-unions.'' It is conceivable 
that every different position on the football team could decide to have 
their own bargaining unit. The quarterbacks in one unit, the lineman in 
another unit, and the linebackers in another, etc. The university would 
then have to separately bargain with multiple different unions, all 
with different demands.
  Universities require its athletes to maintain a 2.0 grade point 
average, GPA, to keep an athletic scholarship. Would the NLRA consider 
a minimum grade point average as a condition of employment under the 
law that must be bargained for? Schools and players' unions could 
bargain a lower GPA.
  What if a coach benches the star point guard, who is a union member, 
on the basketball team, and replaced him with a non-scholarship, walk-
on point guard? Could the team be accused of retaliating against a 
union player in violation of the NLRA? Under the NLRA it is unlawful to 
discharge, discipline or otherwise discriminate against an employee for 
engaging in protected concerted activities. If that star player could 
show that the benching came after he had been discussing a team related 
issue with his fellow teammates it would be considered retaliation.
  The bottom line, is that importing the sometimes head-scratching 
rulings of the NLRB into a competitive, team atmosphere is recipe for 
disaster.
  Do they now hire athletes and not worry if they are students? Mark 
Emmert, NCAA President, said:

       To unionize them, you have to say, These are employees. If 
     you're going to do that, it completely changes the 
     relationship. I don't know why you'd want them to be 
     students. If they're employees and they're playing basketball 
     for you, don't let calculus get in the way.

  Yesterday, the Senate voted against cloture on the Paycheck Fairness 
Act. This is a bill that would amend the Equal Pay Act to make it 
easier to sue for pay discrimination based on gender by limiting an 
important employer defense.
  Under the bill, the employer would have to prove any difference in 
pay would be job-related and consistent with a business necessity; If 
these student athletes are now considered ``employees'' under the eyes 
of a regional director in Chicago, they would theoretically be entitled 
to protection under statutes like the Equal Pay Act; And if the 
Paycheck Fairness Act were to become law, it is conceivable 
universities could be liable for any differences in compensation that 
they provide the football team, versus the women's soccer team;
  Then there is the effect on smaller schools. Big schools with big 
budgets may have the ability to negotiate with a union for better 
benefits for their student athletes. If a football union at Notre Dame 
negotiates for higher compensation that may set a standard the

[[Page 6179]]

school must match for other athletes as well. I imagine that there is 
enough money coming into the Notre Dame or Stanford athletic 
departments to allow them to adjust to the realities of unionized 
college athletics.
  But what about smaller schools? They will have to make cuts 
somewhere. If they preserve their football program, it will likely be 
at the cost of other sports.
  Another consideration that must be taken into account are public 
universities versus private universities. Because the NLRB regional 
director's decision only applies to private universities, it creates a 
different set of rules for private universities than for public 
universities.
  The private schools with athlete unions may ultimately be forced to 
negotiate salaries or other benefits that violate NCAA rules; to 
continue competing, they would have to set up their own conference or 
association. The departure of schools from the NCAA to this new, union 
friendly association, would fracture the foundations of collegiate 
sports.
  And what about possible title IX implications? As title IX was 
enforced related to college athletics, institutions made difficult 
choices to eliminate many athletic programs. Title IX is focused on 
improving equal access to education. If athletes are employees, then it 
is unclear how the requirements and protections of title IX will apply 
to them.
  Due to the current limited nature of the ruling, if football players' 
compensation are considered salaries and not scholarships, then would 
one of the possible effects be a reduction in the number of women's 
scholarships that title IX requires the university to offer? Or would 
title IX require that any new benefits received by a football team 
under their collective bargaining be shared equitably with the women's 
sports at the university?
  With limited resources and title IX requiring both proportional 
opportunity for athletes and pay, the recent decision may result in 
further reductions of athletic programs and opportunities on college 
campuses.
  The Knight Commission's executive director, Amy Privette Perko, 
recently wrote in the New York Times that:

       The commission supports many of the benefits being sought 
     for college athletes by groups like the College Athletes 
     Players Association, but unions are not needed to guarantee 
     those benefits. Colleges can enact proposals long recommended 
     by the commission for colleges to restore the educational 
     role of athletics and improve athletes' experiences.

  I continue to believe that athletes are students first, not 
professionals. Some of the concerns raised by these college athletes 
are legitimate but unions are not the solution. They can and should be 
addressed by the schools and the NCAA.
  The PRESIDING OFFICER. The Senator from Iowa.


                       Whistleblower Protections

  Mr. GRASSLEY. Mr. President, 25 years ago today the Whistleblower 
Protection Act of 1989 was signed into law. To mark that anniversary, I 
come to the floor to discuss some of the history that led to that 
legislation, the lessons learned over the past 25 years, and the work 
that still needs to be done to protect whistleblowers.
  I emphasize that last part because there still needs to be a lot of 
work done to protect whistleblowers. The Whistleblower Protection Act 
was the result of years of effort to protect Federal employees from 
retaliation. Eleven years before it became law in 1989, Congress tried 
to protect whistleblowers as part of the Civil Service Reform Act of 
1978.
  I was then in the House of Representatives. There I met a person 
named Ernie Fitzgerald, who had blown the whistle on the Lockheed C-5 
aircraft program going $2.3 billion over budget. Ernie was fired by the 
Air Force for doing that, and as he used to say: He was fired for the 
act of ``committing truth.''
  When the Nixon tapes became public after Watergate, they revealed 
President Nixon personally telling his Chief of Staff to get rid of 
that SOB. That is how a famous whistleblower who pointed out the waste 
of $2.3 billion was treated.
  The Civil Service Commission did not reinstate Ernie until 12 years 
later. In the meantime, he was instrumental in helping get the Civil 
Service Reform Act of 1978 passed. Yet it soon became very clear that 
law did not do enough to protect whistleblowers. In the early 1980s, 
the percentage of employees who did not report government wrongdoing 
due to fear of retaliation nearly doubled.
  Some whistleblowers still had the courage to come forward. In the 
spring of 1983, I became aware of a document in the Defense Department 
known as the Spinney report. The report exposed the unrealistic 
assumptions being used by the Pentagon in its defense budgeting. Those 
unrealistic assumptions were the basis for add-ons later on so defense 
contractors could bid up the cost. It was written by Chuck Spinney, a 
civilian analyst in the Defense Department's Program Evaluation Office.
  I asked to meet with Chuck Spinney but was stonewalled by the 
Pentagon. When I threatened a subpoena, we finally got them to agree to 
a Friday afternoon hearing in March 1983. The Pentagon hoped the 
hearing would get buried in the end-of-the-week news cycle. Instead, on 
Monday morning the newsstands featured a painting of Chuck Spinney on 
the front cover of Time magazine.
  It labeled him as ``a Pentagon Maverick.'' I called him what he ought 
to be called, the ``conscience of the Pentagon.'' The country owes a 
debt of gratitude to people such as Ernie Fitzgerald and Chuck Spinney. 
It takes real guts to put your career on the line, to expose waste and 
fraud, and to put the taxpayers ahead of Washington bureaucrats.
  In the mid-1980s, we dusted off an old Civil War-era measure known as 
the False Claims Act, as a way to encourage whistleblowers to come 
forward and report fraud. We amended that Civil War law in 1986 to 
create the modern False Claims Act, which has resulted in over $40 
billion in taxpayers' money being recovered for the Federal Treasury. 
We made sure when we passed it that it contained very strong 
whistleblower protections. Those provisions helped to build up support 
for whistleblowing.
  People such as Chuck Spinney and Ernie Fitzgerald helped capture the 
public imagination and showed what whistleblowers could accomplish.
  However, that didn't mean the executive branch stopped trying to 
silence whistleblowers. For example, in the spring of 1987 the 
Department of Defense asked Ernie to sign a nondisclosure form. It 
would have prohibited him from giving out classifiable--as opposed to 
classified--classifiable information without prior written 
authorization. That, of course, would have prevented those of us in 
Congress from getting that information so we couldn't do our oversight 
work.
  Further, the term ``classifiable'' didn't only cover currently 
classified information, it also covered any information that could 
later be classified.
  The governmentwide nondisclosure form arguably violated the Lloyd-
LaFollette Act of 1912. That law states that ``the right of employees . 
. . to furnish information to . . . Congress . . . may not be 
interfered with or denied.''
  Just to make sure, I added the so-called anti-gag appropriations 
rider that passed Congress in December 1987. That rider, the anti-gag 
rider, said that no money could be used to enforce any nondisclosure 
agreements that interferes with the right of individuals to provide 
information to Congress. It remained in every appropriations bill until 
2013. I then worked to get that language into statute in 2012 through 
the passage of the Whistleblower Protection Enhancement Act.
  By the time of the first anti-gag rider in 1987, there was widespread 
recognition that all Federal employees ought to be protected if they 
disclosed waste and fraud to the Congress or for a lot of other reasons 
as well.
  Meanwhile, I had also worked with Senator Levin of Michigan to 
coauthor what we called the Whistleblower Protection Act. It was 
introduced in February 1987. There were hearings on our bill in the 
summer of 1987 and the spring of 1988. It proceeded to pass the Senate 
by voice vote in August. Then

[[Page 6180]]

the House unanimously did that in October. After reconciling the 
differences, we sent the bill to the White House. However, President 
Reagan failed to sign it. That meant we had to start all over again in 
the next Congress.
  We didn't let President Reagan's inaction--because that was a pocket 
veto--stand in the way. Senator Levin and I moved forward again. When 
we reintroduced the bill in January 1989, I came to the floor to make 
the following statement:

       We're back with this legislation in the 101st Congress, and 
     this time, we're going to make it stick.
       Congress passed this bill last fall after extensive 
     discussions with members of the Reagan administration.
       But in spite of the compromise we worked out, this bill 
     fell victim to President Reagan's pocket veto.
       Whistleblowers are a very important part of government 
     operations. By exposing waste, fraud, and abuse, they work to 
     keep government honest and efficient. And for their loyalty, 
     they are often penalized--they get fired, demoted, and 
     harassed. . . . Under the current system, the vast majority 
     of employees choose not to disclose the wrongdoing they see. 
     They are afraid of reprisals and the result is a gross waste 
     of taxpayers' dollars.
       Government employers should not be allowed to cover up 
     their misdeeds by creating such a hostile environment.

  That is the end of the quote from the statement I made on the 
introduction of that bill in January 1989.
  Once again, the bill passed the Senate and the House without 
opposition. Working with George H.W. Bush, this time we got the 
President to sign it. On April 10, 1989, the Whistleblower Protection 
Act became law.
  We left part of the work undone 25 years ago. The Civil Service 
Reform Act of 1978 had exceptions for the FBI, the CIA, the NSA, and 
other parts of the intelligence community. The Whistleblower Protection 
Act left employees of those agencies unprotected, and so have the laws 
that followed it. I am very pleased that the preconferenced 
intelligence authorization bill released today will remedy that for the 
intelligence community.
  Back in 2012 I championed the addition of intelligence whistleblower 
protections to the Whistleblower Protection Enhancement Act. The 
provisions I authored prohibited various forms of retaliation, 
including changing an employee's access to classified information. 
Working closely with the Senate Select Committee on Intelligence, we 
got that language into the bill that passed the Senate by unanimous 
consent May 8, 2012. However, it was not included in the bill the House 
passed on September 28, 2012.
  Prior to the differences being reconciled on October 10, 2012, 
President Obama issued Presidential Policy Directive 19. It provided 
certain limited protections for whistleblowers with access to 
classified information. Yet that Executive order by President Obama was 
weaker than the provisions I had authored in the Whistleblower 
Protection Enhancement Act. Unfortunately, President Obama's actions 
undercut support for those provisions by suggesting that statutory 
protection was now necessary. The final law that passed in November 
left intelligence whistleblowers at the mercy of the Presidential 
directive.
  Now, much of the language I had championed is in the Intelligence 
authorization bill currently under consideration. It is certainly a 
step up from Presidential Policy Directive 19. Making any protections 
statutory is very significant. The bill also has better substantive 
protections than the Presidential directive.
  It does still have some gray areas, I am sorry to say. It leaves some 
of the policy and procedure development to the discretion of the 
executive branch, and that is a mistake we know exists because we had a 
similar thing happen with the FBI because in 1989 the protections of 
the Whistleblower Protection Act didn't apply to the FBI. That turned 
out to be a big mistake.
  Yet that law did require the Attorney General to implement 
regulations for FBI whistleblowers consistent with those in the 
Whistleblower Protection Act. However, it soon became clear that was a 
little like putting the fox in charge of the henhouse. The Justice 
Department and the FBI simply ignored that part of the law for nearly 
10 years. Not until 1997 did the Attorney General finally implement 
regulations for whistleblowers at the FBI.
  The Justice Department was pushed into finally issuing those 
regulations by an FBI employee by the name of Dr. Fred Whitehurst. Dr. 
Whitehurst was considered by the FBI to be its leading forensic 
explosive expert in the 1990s.
  What I am about to show you is that by being a good, patriotic 
American and blowing the whistle when something is wrong, you can ruin 
yourself professionally.
  Shortly after the Whistleblower Protection Act was passed in 1989, 
Dr. Whitehurst disclosed major problems with the FBI crime lab. From 
1990 to 1995 he wrote close to 250 letters to the Justice Department 
inspector general about these problems. In other words, he tried to be 
loyal to the agency he was in and work within that agency to expose 
wrongdoing but didn't get very far.
  In January 1996 he formally requested that the President implement 
regulations as required by the Whistleblower Protection Act. Only after 
Fred was suspended in 1997 did the White House finally issue such a 
memo to the Attorney General. It instructed the Attorney General to 
create a process for FBI whistleblowers as directed by the 
Whistleblower Protection Act. Fred Whitehurst's case dragged on for 
another year until the FBI finally agreed to settle with him in 
February 1998. He got more than a $1 million settlement out of that 
just because he was trying to do the right thing. But he got his badge 
and his gun taken away from him, and he was, in a sense, ridiculed for 
doing what a patriotic American ought to do.
  Fred Whitehurst is not alone in the FBI as far as people having 
problems. Over the years, others--such as Mike German, Bassem Youssef, 
Jane Turner, and Robert Kobus--have blown the whistle from within the 
FBI. Even after the inspector general issued findings in their favor, 
several had to navigate a never-ending Kafkaesque internal appeals 
process. It seemed designed to grind down these patriotic Americans 
into submission through years of inaction.
  Now history has started to repeat itself. As Congress was passing the 
Whistleblower Protection Enhancement Act in 2012, President Obama 
issued Presidential Policy Directive 19. He tasked Attorney General 
Holder with reevaluating the same FBI whistleblower procedures that 
Fred Whitehurst helped get in place in 1997. The Attorney General was 
given 6 months to report back.
  When the Attorney General didn't report back and didn't issue that 
report at the 6-month mark, I asked the Government Accountability 
Office to do its own independent evaluation of the FBI whistleblower 
protections.
  Now 18 months after the President's directive, Attorney General 
Holder still hasn't released his report. This is a person appointed by 
the President of the United States, directed by the President of the 
United States to do something in 6 months, presumably loyal to the 
President of the United States, and he isn't doing what the Chief 
Executive of our great country told him to do.
  Potential whistleblowers should not have to wait a decade, as they 
did with the first set of regulations. It appears that the Justice 
Department is simply sitting on its hands once again.
  The example of the FBI should be instructive. Unlike the 
Whistleblower Protection Act, the Intelligence authorization bill is 
much more detailed about the protections Congress intends. It puts a 
time limit on how long the intelligence community has to create their 
procedures, giving them 6 months. However, remember that is exactly the 
same amount of time President Obama gave Attorney General Holder to 
come up with regulations, and it still hasn't happened 18 months later. 
Congress needs to be vigilant about getting both the intelligence 
community and the Attorney General to act.
  In the meantime, the FBI fiercely resists any efforts at 
congressional oversight, especially on whistleblower matters. For 
example, 4 months ago I sent

[[Page 6181]]

a letter to the FBI requesting its training materials on the insider 
threat program. When we just want copies of training materials, would 
that be difficult for a bureaucracy to present to a Member of Congress?
  That program happened to be announced by the Obama administration in 
October of 2011. It was intended to train Federal employees to watch 
out for insider threats among their colleagues. Public news reports 
indicated that this program might not do enough to distinguish between 
true insider threats and legitimate whistleblowers. I relayed these 
concerns in my letter. I also asked for copies of the training 
materials. I said I wanted to examine whether they adequately 
distinguished between insider threats and whistleblowers so it didn't 
become a damper on whistleblowing.
  In response, an FBI legislative affairs official told my staff that a 
briefing might be the best way to answer my questions. It was scheduled 
for last week. Staff of both Chairman Leahy and myself attended. The 
FBI brought the head of their insider threat program. Yet the FBI 
didn't bring the insider threat training materials as we had requested. 
However, the head of the insider threat program told the staff of both 
Senator Leahy and myself there was no need to worry about whistleblower 
communications.
  They are telling me that at a time when we have decades of history of 
whistleblowers being treated like skunks at a picnic? This gentleman 
said whistleblowers had to register in order to be protected and the 
insider threat program would know to avoid these people.
  I have never heard of whistleblowers ever being required to 
``register,'' in order to be protected. The idea of such a requirement 
should be pretty alarming to all Americans. We are talking about 
patriotic Americans wanting to make sure the government does what the 
law says it should do and spend money the way Congress intended it be 
spent. They have to register to be protected just because they are a 
patriotic American? The reason they can't do that is because sometimes 
confidentiality is the best protection a whistleblower has.
  Unfortunately, neither my staff nor Chairman Leahy's staff was able 
to learn more because after only 10 minutes--only 10 minutes--in the 
office and into the briefing, the FBI got up and abruptly walked out.
  It might be one thing to walk out on Republican staff, but they 
walked out on the staff of a Democratic chairman of one of the most 
powerful committees in the U.S. Senate as well--Chairman Leahy's staff.
  FBI officials simply refused to discuss any whistleblower 
implications in its insider threat program and left the room. These are 
clearly not the actions of an agency that is genuinely open to 
whistleblowers or whistleblower protection.
  Like the FBI, the intelligence community has to confront the same 
issue of distinguishing a true insider threat from legitimate 
whistleblowers. This issue will be impacted by title V of the current 
Intelligence authorization bill, which includes language about 
continuous monitoring of security clearance holders.
  Director of National Intelligence James Clapper seems to have talked 
about such procedures when he appeared before the Senate Armed Services 
Committee on February 11 of this year. In his testimony he said this:

       We are going to proliferate deployment of auditing and 
     monitoring capabilities to enhance our insider threat 
     detection. We're going to need to change our security 
     clearance process to a system of continuous evaluation. . . . 
     What we need is . . . a system of continuous evaluation, 
     where we have a way of--

  Now, get this.

     --monitoring their behavior, both their electronic behaviors 
     on the job as well as off the job, to see if there is a 
     potential clearance issue.

  Director Clapper's testimony gives me major pause, as I hope it does 
my colleagues. It sounds as though this type of monitoring would likely 
capture the activity of whistleblowers communicating with Congress.
  To be clear, I believe the Federal Government is within its right in 
monitoring employee activity on worker computers. That applies all the 
more in the intelligence community. However, as I testified before the 
House Oversight and Government Reform Committee recently, there are 
areas where the executive branch should be very cautious.
  The House oversight committee held a hearing on electronic monitoring 
that the U.S. Food and Drug Administration had done of certain 
whistleblowers in that agency. This monitoring was not limited to work-
related activity. The Food and Drug Administration allows its employees 
to check personal email accounts at work. As a result, the FDA's 
whistleblower monitoring captured personal email account passwords. It 
also captured attorney-client communications and confidential 
communications to Congress and the Office of Special Counsel.
  Some of these communications are legally protected. If an agency 
captures such communications as a result of monitoring, it needs to 
think about how to handle them very differently; otherwise, it would be 
the ideal tool to identify and retaliate against whistleblowers. 
Without precautions, that kind of monitoring could effectively shut 
down legitimate whistleblower communications.
  It wouldn't surprise me, considering the culture of some of these 
agencies, that is exactly what they want to do, because there is a 
great deal of peer pressure to go along to get along within these 
agencies. Whistleblowers, as I said, are kind of like a skunk at a 
picnic.
  There could be safeguards, however. For example, whistleblower 
communications could be segregated from other communications. Access 
could be limited to only certain personnel rather than all of the upper 
management. In any case, whistleblowing disclosures to Congress or the 
special counsel can't just be routed back to the official accused of 
wrongdoing.
  As the 1990 Executive order made clear, whistleblowing is a Federal 
employee's duty. It should be considered part of their official 
responsibilities and something they can do on work time. However, that 
doesn't mean they aren't allowed to make their protected disclosures 
confidentially to protect against the usual retaliation. A Federal 
employee has every right to make protected disclosures anonymously, 
whether at work or off the job.
  Every Member of this body should realize that without some safeguards 
there is a chance their communications with whistleblowers may be 
viewed by the executive branch.
  These same considerations apply to the intelligence community. The 
potential problems are heightened if electronic monitoring extends off 
the job, such as Director Clapper mentioned in the quote I gave. We 
have to balance detailing insider threats with letting whistleblowers 
know their legitimate whistleblower communications are protected.
  With continuous monitoring in place, any whistleblower would 
understand their communications with the inspector general or Congress 
would likely be seen by their agency and punishment could follow. They 
might perhaps even be seen by those they believe are responsible for 
waste, fraud, or abuse, and punishment to follow. That leaves the 
whistleblower open to retaliation.
  Even with the protections of this bill, we should all understand it 
is difficult to prevent retaliation because it is so indigenous in the 
culture of most government agencies. It requires a lengthy process for 
an individual to try to prove the retaliation and get any remedy. It is 
far better, where possible, to take precautions that prevent the 
likelihood of retaliation even occurring; otherwise, it will make it 
virtually impossible for there even to be such a thing as an 
intelligence community whistleblower. Fraud and waste would then go 
unreported. No one would dare take the risk.
  To return to the theme I started with, whistleblowers need protection 
from retaliation today just as much as they did 25 years ago when the 
Whistleblower Protection Act was passed on April 10 of that year. I 
have always said whistleblowers are too often treated like a skunk at a 
picnic. You have

[[Page 6182]]

now heard it for the third time. You can't say it too many times. I 
have seen too many of them retaliated against.
  However, 25 years after the Whistleblower Protection Act, the data on 
whistleblowing is in, and the debate on whether to protect 
whistleblowers is over. There is widespread public recognition that 
whistleblowers perform a very valuable public service.
  Earlier this year PricewaterhouseCoopers found that 31 percent of 
serious fraud globally was detected by whistleblowing systems or other 
tipoffs. According to a 2012 report from another organization, that 
number is even higher when looking just in the United States, with 51 
percent of the fraud tips coming from a company's own employees.
  In 2013, of U.S. workers who had observed misconduct and blown the 
whistle, 40 percent said the existence of whistleblower protection had 
made them more likely to report misconduct.
  Whistleblowers are particularly vital in government, where 
bureaucrats only seem to work overtime when it comes to resisting 
transparency and accountability.
  A year and a half after the Whistleblower Protection Act, President 
Bush issued Executive Order 1990 that said all Federal employees 
``shall disclose waste, fraud, abuse and corruption to appropriate 
authorities.'' That should have changed the entire culture of these 
agencies that are antiwhistleblower, but it hasn't. But that is what 
the directive says.
  Federal employees are still under obligations this very day. They are 
fulfilling a civic duty when they blow the whistle.
  I encouraged President Reagan and every President after him that we 
should have a Rose Garden ceremony honoring whistleblowers. If you do 
that, it sends a signal from the highest level of the U.S. Government 
to the lowest level of the U.S. Government that whistleblowing is 
patriotic. Unfortunately, there isn't a single President who has taken 
me up on my suggestion.
  Further, while the Obama administration promised to be the most 
transparent in history, it has, instead, cracked down on whistleblowers 
as never before.
  Last week, the Supreme Court denied a petition to hear an appeal from 
a case named Kaplan v. Conyers. The Obama administration's position in 
that case, if allowed to stand, means untold numbers of Federal 
employees may lose some of the very same appeal rights we tried to 
strengthen in the Whistleblower Protection Act. There could be half or 
more of the Federal employees impacted. Such a situation would undo 130 
years of protection for civil servants dating back to the Pendleton 
Civil Service Reform Act of 1883.
  We all remember that President Obama promised to ensure that 
whistleblowers have full access to the courts and due process. However, 
his administration has pursued the exact opposite goal here. That ought 
to be unacceptable to all of us.
  I think it is important to send a loud and clear signal that waste, 
fraud, and abuse won't be tolerated in government, and that is why I am 
pleased to announce I will officially be forming a whistleblower 
protection caucus at the beginning of the 114th Congress. Until then, I 
will be talking to my colleagues and encouraging them to join me as we 
start putting together an agenda for that caucus in a new Congress.
  As we celebrate the 25th anniversary of this very important bill 
called the Whistleblower Protection Act, we should all recognize 
whistleblowers for the sacrifices they make. Those who fight waste, 
fraud, and abuse in the government should be lauded for patriotism. 
Whistleblower protections are only worth anything if they are enforced.
  Just because we have passed good laws does not mean we can stop 
paying attention to the issue. There must be vigilance and oversight by 
the Congress.
  The best protection for a whistleblower is a culture of understanding 
and respecting the right to blow the whistle. I hope this whistleblower 
caucus will send the message that Congress expects that kind of 
culture.
  I call on my colleagues to help me make sure whistleblowers continue 
to receive the kind of protection they need and deserve.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    STOP Identity Theft Act of 2013

  Ms. KLOBUCHAR. Mr. President, I rise today to urge my colleagues to 
pass the Stopping Tax Offenders and Prosecuting Identity Theft Act of 
2013. With tax day coming upon us on Tuesday, the time is now to pass 
this bipartisan legislation.
  I worked on the STOP Identity Theft Act to address the growing 
problems of tax identity theft and to protect taxpayers against fraud. 
From the beginning this bill has been bipartisan. Senator Sessions is 
the lead Republican on this bill, and in fact recently this bill passed 
the Senate Judiciary Committee on a vote of 18-0. Given the number of 
members on the committee with very different views on issues, that is 
an accomplishment and shows what a pressing problem this is.
  I think people will be pretty shocked, as you will be, Mr. President, 
when you hear these numbers. Criminals are increasingly filing false 
tax returns using stolen identity information in order to claim 
victims' refunds. You might think that would be a rare incident, but as 
a former law enforcement person, as the attorney general for the State 
of New Mexico, I think you know anything can happen. This is a problem 
where more than anything is happening.
  In 2012 alone, identity thieves filed 1.8 million fraudulent tax 
returns, almost double the number confirmed in 2011. The numbers and 
the documents in these cases may be forged, but the dollars behind them 
are real, because in 2012 there was another 1.1 million fraudulent tax 
returns that slipped through the cracks, and our U.S. Treasury paid out 
$3.6 billion in the fraudulent returns--$3.6 billion. That is the 
number coming from the IRS. That is your taxpayer dollars going down 
the drain to people who are actually stealing taxpayers' identities, 
putting them on returns, filing returns, and getting back the money.
  When criminals file these tax returns, it is not just the Treasury 
that loses out. Everyday people are the real victims here, because when 
someone else uses your identity, when someone else fakes your identity, 
people are then forced to wait months and sometimes even years before 
receiving their actual refund.
  So what is going on? Well, we are having double refunds, right? First 
they go to the thief. This is happening millions of times. Then the 
real taxpayer says: Wait a minute, where is my refund, and files a 
return. The government has to check this out and figure out the first 
one and they then pay twice. This is what is happening in the United 
States of America.
  In 2012, Alan Stender, a retired businessman from the 5,000-person 
town of Circle Pines, MN, was working to file his taxes on time just as 
people are doing right now. After completing all the forms and sending 
in his tax returns, Alan heard from the IRS that there was a major 
problem. So he gets it done on time and files the return and finds out 
from the IRS there is a problem. Someone had stolen his identity and 
used his personal information to fraudulently file his taxes and steal 
his tax return.
  Just last week 25 people were arrested in Florida for using thousands 
of stolen identities to claim $36 million in fraudulent tax refunds. 
This included the arrest of a middle school food service worker who 
sold the identities of more than 400 students, if you can believe it. 
Those victims are just kids, and criminals are stealing their 
identities to file fake returns.
  Are you ready for this one? Attorney General Eric Holder recently 
revealed

[[Page 6183]]

that he was a victim of tax return identity theft. This came out this 
week. Two young adults used his name, his date of birth, and Social 
Security number to file a fraudulent tax return. They got caught. They 
were prosecuted. But if you can imagine that this can happen to the 
Attorney General of the United States--at least we got action there--
think about some guy in Circle Pines, MN, who has it happen. As I said, 
it is happening over a million times every year, from a retired man in 
Minnesota to middle school students in Florida, to the Attorney General 
of the United States. It is clear that identity theft can happen to 
anyone.
  We also know this crime can victimize our most vulnerable citizens, 
victims such as seniors living on fixed incomes or people with 
disabilities who depend on tax returns to make ends meet and cannot 
financially manage having their tax returns stolen. There is a lot at 
stake here and action is needed. That is why I put forward the 
bipartisan legislation a few years back with Republican Senator Jeff 
Sessions of Alabama, to take on this problem and crack down on the 
criminals committing this crime. There was also significant bipartisan 
work in the House last year. A very similar bill was passed in the 
House that did the same thing, passed bipartisan bills in the House of 
Representatives. It happened. And the Senate now, as we know, passed it 
18-0 out of the Judiciary Committee.
  This critical legislation will take important steps to streamline law 
enforcement resources and strengthen penalties for tax identity theft. 
The STOP Identity Theft Act will direct the Justice Department to 
dedicate additional resources to address tax identity theft. It also 
directs the Department to focus on parts of the country with especially 
high rates of tax return identity theft and to boost protections for 
vulnerable populations such as seniors, minors, and veterans.
  We also urge the Justice Department to cooperate fully and coordinate 
investigations with State and local law enforcement organizations.
  Identity thieves have become more creative and have expanded from 
stealing identities of individuals to stealing that of businesses and 
organizations. My bill recognizes this change and broadens the 
definitions of tax identity theft to include businesses, nonprofits, 
and other similar organizations. This is important because once a 
company or an organization's tax information is stolen, it can be used 
to create fraudulent tax returns and claim false refunds.
  Finally, we need to crack down on the criminals committing this 
crime. This bill would strengthen tax identity theft penalties by 
raising the maximum jail sentences from 15 to 20 years. I believe this 
bill goes a long way in helping law enforcement use their resources 
more efficiently and effectively and it is time to bring it to the 
floor.
  In recent weeks we have made significant progress, as I said, by 
passing the bill out of the Senate Judiciary Committee unanimously on 
an 18-0 vote. It doesn't happen often. I thank all of my colleagues on 
the committee and all of my friends across the aisle for joining with 
us to vote for this bill. After a long discussion we had amendments. We 
got this bill. Every single member of the Judiciary Committee voted for 
this bill, including Senator Cruz, Senator Schumer, Senator Feinstein, 
and Senator Hatch. It was a unanimous 18-0 vote.
  Now I want to bring this bill to the full Senate. I would love to get 
this done before tax day. I know there is a holdup on the other side of 
the aisle, and it is time for people to understand that this is a bill 
that passed the House of Representatives, it passed on an 18-0 vote out 
of Judiciary, and we simply need to get this done.
  When the Attorney General of the United States of America is having 
his identity stolen and his identity is used to file fake tax returns, 
we have a problem. We have a problem that involves a lot of money. We 
have a problem that involves 1.8 million fraudulent tax returns in 2012 
alone, double the number in 2011. We have a problem that also involves 
a lot of money. We have a problem that involves $3.6 billion in 1 year 
alone in 2012, paid out by the U.S. Government. What do you think 
taxpayers think when they hear that, that $3.6 billion went to thieves 
and we have a bill that passed out of the Judiciary Committee 18-0? I 
would want someone explaining why they are holding up this bill.
  It is time to get this bill done. I would love to see it happen 
before we go back to our home State so I can explain it to my 
constituents, and I hope our colleagues on the other side of the aisle 
will work with us. Because with tax season upon us, it is time to pass 
this bipartisan legislation, to crack down on identity thieves and 
protect the hard-earned tax dollars of innocent Americans. The time to 
do it is now.
  I again thank Senator Jeff Sessions for being the Republican on this 
bill, and I thank all my colleagues for passing it through the 
committee. I thank the House for getting it done over there. It is now 
the time to pass it in the Senate.
  Thank you, Mr. President. I yield the floor.
  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.
  Mr. PORTMAN. I would ask unanimous consent that the quorum call be 
rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. PORTMAN. I wish to speak as if in morning business.


                              The DATA Act

  Mr. President, I was not able to be here earlier on the Senate floor 
when my colleague Senator Warner got unanimous consent to pass the DATA 
Act. This is the Digital Accountability and Transparency Act, something 
we have been working on over the last couple of years.
  It is a good bill, and it is about good government and I am glad we 
were able to pass it this afternoon in the Senate. I now hope it will 
go to the House for passage and get to the President's desk, because it 
will help to give all the taxpayers a better view into our government.
  Specifically, it improves Federal financial transparency and data 
quality, both of which are going to help identify and illuminate the 
ways we spend--certainly something we should be focused on with the 
huge deficits and all the pressure we are facing.
  It will also ease the compliance burden with the people working in 
the Federal Government and recipients of Federal funds. At the same 
time it improves the data that they send to the Federal Government. It 
is a win/win for the taxpayer, for the government, at getting at the 
issue of waste, fraud, and abuse.
  It is an issue that transcends party lines. I want to thank my friend 
Senator Coburn because he has been a leader in the Governmental Affairs 
Committee and also the chairman of the committee, Senator Tom Carper. 
Without their help, Senator Warner and I would not have been able to 
get this bill to the floor today. We also have a number of other 
cosponsors on a bipartisan basis.
  We all know that the Federal Government spends a lot of money--over 
$3 trillion a year. The goal is to know more about how that money is 
spent so we can ensure it is being spent on the right things. This 
legislation, the DATA Act, picks up on lessons we learned about how to 
make it more accountable and more transparent so taxpayers have a 
better understanding of how the money is being used. This has to do 
with grants and contracts. I think it is something that is going to 
help ensure that we are not just spending the money right but also 
eliminating fraud and abuse that we otherwise would not find.
  I first got involved in this issue when I was at the Office of 
Management and Budget. I supported it and then was tasked with 
implementing a 2006 bill that was introduced by Senator Coburn and 
Senator Obama at the time. It was called the Federal Funding 
Accountability and Transparency Act, FFATA--an unfortunate acronym in 
my view.

[[Page 6184]]

  FFATA worked in the sense that it led to something which is called 
usaspending.gov. Back then a lot of Federal agencies thought this could 
not be done; that we wouldn't be able to improve our transparency up to 
the standards that were established in FFATA, and we proved them wrong, 
thanks to a lot of hard work by a lot of folks in the agencies and at 
the Office of Management and Budget where I served as Director. It 
ended up with the ability of taxpayers to get a wealth of information 
online, again, about Federal grants and Federal contracts so they could 
better understand how their tax dollars were spent.
  It was a good start. It also helped us learn some lessons about how 
to improve fiscal data quality and transparency even more. We learned 
that the usaspending.gov can be more comprehensive, more accurate, more 
reliable, and more timely.
  By the way, if you have not gone on this Web site, usaspending.gov, I 
recommend it. If we pass this legislation, you will like it even more 
because the data you will be seeing will be more understandable, will 
be more uniform across the agencies, and will enable us all, as 
taxpayers, to get a better view into the government.
  What does it do? First, it makes it easier to compare spending across 
the Federal agencies by requiring establishment of these governmentwide 
standards, such as financial data standards, which is very difficult to 
do, as I learned when I was at the Office of Management and Budget. It 
sounds easy, but it is hard and it pays off. It promotes consistency 
and reliability in data. Second, it strengthens the Federal financial 
transparency by reforming and significantly improving the Web site 
itself. It requires more frequent updates--quarterly financial updates 
of spending by each Federal agency on their programs and at the object 
class-level basis. It is basically more specific data and more up-to-
date so it refreshes the Web site more to make it more useful.
  Third, it empowers the inspector general and the GAO to hold agencies 
accountable. I think putting the inspectors general into this is a good 
idea because it has another level of accountability. This will make 
them more accountable for completeness, timeliness, quality, and 
accuracy of the data they are submitting to the usaspending.gov. This 
is new and will make the Web site work even better.
  Fourth, it simplifies the reporting requirements by recipients of 
Federal funds, eliminating unnecessary duplication and burdensome 
regulations. It basically streamlines what people have to provide to 
the Federal Government. This will actually make it easier for us to 
understand what is going on with these contractors, again, as taxpayers 
doing oversight, but it also makes it easier to do business with the 
Federal Government. It makes it less complicated for them and gives 
more transparency for taxpayers, so it is another good aspect of this 
legislation.
  I think each of these reforms will enhance Federal financial 
accountability in real ways by allowing citizens to track government 
spending better, allowing agencies to more easily identify improper 
payments and unnecessary spending.
  We have a big issue around here with spending. We spend more than we 
take in every year to the tune of hundreds of billions of dollars. We 
have a debt that is at least $17 trillion. It is time to make sure we 
are not wasting money that could be applied to that debt or it could 
pay for programs that are a top priority. This bipartisan legislation 
will help us get there.
  I am very pleased we were able to get it passed today. Again, I will 
be working hard with Senator Warner and others to ensure that we get 
this through the House and to the President's desk for signature so we 
can indeed begin to help all of us as citizens have a better view into 
our Federal Government.
  I yield the floor and 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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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