E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 111 CONGRESS, FIRST SESSION

Vol. 155 WASHINGTON, MONDAY, JULY 20, 2009 No. 109 Senate The Senate met at 1 p.m. and was U.S. SENATE, McCain amendment relating to the F– called to order by the Honorable MARK PRESIDENT PRO TEMPORE, 22s. BEGICH, a Senator from the State of Washington, DC, July 20, 2009. I yield the floor. Alaska. To the Senate: Under the provisions of rule I, paragraph 3, f of the Standing Rules of the Senate, I hereby PRAYER appoint the Honorable MARK BEGICH, a Sen- RESERVATION OF LEADER TIME The Chaplain, Dr. Barry C. Black, of- ator from the State of Alaska, to perform The ACTING PRESIDENT pro tem- fered the following prayer: the duties of the Chair. pore. Under the previous order, the Let us pray. ROBERT C. BYRD, leadership time is reserved. Shepherd of souls, who neither slum- President pro tempore. f bers nor sleeps, we seek the complete- Mr. BEGICH thereupon assumed the ness that can only be found in You. chair as Acting President pro tempore. NATIONAL DEFENSE AUTHORIZA- Lift us above Earth’s strident noises f TION ACT FOR FISCAL YEAR 2010 until we hear Your still small voice in RECOGNITION OF THE ACTING The ACTING PRESIDENT pro tem- our inmost being. MAJORITY LEADER pore. Under the previous order, the Lord, give the Members of this body Senate will resume consideration of S. The ACTING PRESIDENT pro tem- the wisdom to permit their deep needs 1390, which the clerk will report. pore. The Senator from Michigan. to drive them to You. Give them the The assistant legislative clerk read wisdom to heal divisions and to lib- f as follows: erate the oppressed. May Your presence SCHEDULE A bill (S. 1390) to authorize appropriations break down every divisive wall and Mr. LEVIN. Mr. President, following for fiscal year 2010 for military activities of bring a spirit of unity. Silence disrup- the Department of Defense, for military con- tive voices that would ignite and in- the remarks of the leader, the Senate struction, and for defense activities of the flame disunity. Today we again ask will resume consideration of the De- Department of Energy, to prescribe military Your choicest blessings upon our mili- partment of Defense authorization bill. personnel strengths for such fiscal year, and tary men and women and their families Under an agreement reached last week, for other purposes. who give so much to keep us free. there will be up to 40 minutes for de- Pending: We pray in the Name of Him who bate prior to votes in relation to Thune amendment No. 1618, to amend came to set us free. Amen. amendments relating to hate crimes. chapter 44 of title 18, United States Code, to Those votes would be in relation to one allow citizens who have concealed carry per- f amendment offered by Senator LEAHY mits from the State in which they reside to or his designee and three amendments carry concealed firearms in another State offered by Senator SESSIONS. It is my that grants concealed carry permits, if the PLEDGE OF ALLEGIANCE understanding that we may be able to individual complies with the laws of the The Honorable MARK BEGICH led the dispose of the Leahy amendment by a State. Pledge of Allegiance, as follows: voice vote and that the managers are The ACTING PRESIDENT pro tem- I pledge allegiance to the Flag of the working on the Sessions amendment pore. The Senator from Nebraska. United States of America and to the Repub- regarding Attorney General regula- CAP AND TRADE lic for which it stands, one Nation under tions. Upon the use or yielding back of Mr. JOHANNS. Mr. President, I rise God, indivisible, with liberty and justice for all debate time, the Senate will pro- to discuss an Agricultural Committee all. ceed to a series of at least two rollcall hearing that is scheduled later on this votes and possibly up to four rollcall week. It is an important topic. The f votes. The votes could occur in the 4 hearing is titled ‘‘The Role of Agri- p.m. range. After the Senate disposes culture and Forestry in Global Warm- APPOINTMENT OF ACTING of those amendments, we will resume ing Legislation.’’ I look forward to par- PRESIDENT PRO TEMPORE debate on the gun amendment offered ticipating. This is the committee’s The PRESIDING OFFICER. The by Senator THUNE. Second-degree first effort this year to tackle the on- clerk will please read a communication amendments are in order to the gun going climate change debate. It is very to the Senate from the President pro amendment. Also under the agreement important. Much of the discussion in tempore (Mr. BYRD). reached last week, upon disposition of both Houses of Congress has centered The assistant legislative clerk read the Thune amendment, Senator LEVIN on potential new legislation and regu- the following letter: will be recognized to offer the Levin- lations relative to climate change. Any

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Nov 24 2008 04:11 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\A20JY6.000 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7668 CONGRESSIONAL RECORD — SENATE July 20, 2009 kind of new climate-related law would mention very costly. Given the gloomy than the orange grower in California. have sweeping consequences that touch predictions about cap-and-trade pro- We need a State-by-State and com- every corner of American life. Thus, I posals, it seems clear to me that we modity-by-commodity analysis. One- have made it clear that any climate need to take an approach that is exten- size-fits-all will not work. A national change legislation should require a ro- sive, methodical, and well thought out. average would not paint a true picture. bust, open, and extensive debate on the We need more specific and clear anal- When one is camping, they can’t put Senate floor. ysis to make sure we know—and, most one foot in the cooler and one foot in Numerous studies have now been re- importantly, the American people the campfire and, on average, it is leased about cap and trade and affect know—exactly what passage of this bill about right. The same goes for loose on American life. Those studies also in- will mean. assessments that are riddled with aver- clude agriculture. During last year’s As I mentioned, USDA knows that ages. debate over cap and trade, the Fer- cap and trade will increase energy We have a responsibility to seek a tilizer Institute released a study stat- prices. Here is the kicker: At the same full understanding of this legislation’s ing that the legislation would result in time the Department also has indi- impact on our Nation’s farmers and re- a $40 to $80 increase in the cost to cated: lated ag industries. The information I produce an acre of corn. That means USDA believes the opportunities for cli- requested is critical to help the Senate higher input costs for livestock pro- mate legislation will likely outweigh the and America’s producers develop a ducers as well. That same study indi- costs. clearer picture of cost increases for cated the cost of producing soybeans Let me say that again: USDA says farmers, ranchers, and consumers. would increase from $10 to $20 an acre. energy prices will increase, but they We need the impact analysis to tell Wheat would jump $16 to $32 an acre. think the opportunities for climate us which parts of the country will be According to one recent analysis, the change legislation will outweigh the hit the hardest and which industries Waxman-Markey cap-and-trade bill costs. This kind of claim must be based within agriculture will incur the great- would also have a significant, if not se- on hard data or it is reckless to make est losses as a result of this legislation. vere, impact on agriculture. If the bill the claim. Such a sweeping conclusion I have asked for this analysis prior to is enacted, farm income is estimated to should not be drawn unless the impact the hearing. I believe it is necessary, decrease as much as $8 billion in the is studied and analyzed. If USDA has and I hope we will have it before the year 2012. By 2024, farmers stand to lose conducted analysis of increases in farm hearing. $25 billion. An eye-popping $50 billion input costs and weighed them against I am puzzled by the passage of nearly would be lost by farmers by 2035. Gaso- the measured opportunities, then I ap- a full week since my request and no line and diesel costs are expected to in- plaud their efforts. But if that is the analysis has been provided. I trust the crease by 58 percent. Electric rates case, it is mystifying that the Depart- administration has nothing to hide. I would soar maybe as high as 90 per- ment has not shared the analysis, de- will remain engaged in the debate. I cent. spite having testified before the Senate look forward to Wednesday’s hearing. Agriculture is an energy intensive in- twice in the 2 weeks preceding this With that, Mr. President, I yield the dustry. Those kinds of increased costs week. floor. are certainly going to impact this busi- Having served as the Secretary of Ag- RECOGNITION OF THE MINORITY LEADER ness. These are not isolated studies. riculture, I know that the USDA has an The ACTING PRESIDENT pro tem- The American Farm Bureau Federa- outstanding team of economists with pore. The Republican leader is recog- tion, the largest agricultural organiza- expertise to do this kind of analysis. nized. tion in the country, has also studied That is why last week I sent a letter to Mr. MCCONNELL. Mr. President, I these costs. The Farm Bureau reported the current Ag Secretary, Tom am going to proceed on my leader time. that if Waxman-Markey were to be- Vilsack, who will testify at the Ag The ACTING PRESIDENT pro tem- come law, input costs for agriculture Committee hearing this week. The let- pore. The Senator is recognized. would rise by $5 billion, compared to a ter requested USDA to provide the fol- SOTOMAYOR NOMINATION continuation of current law. Other lowing: A State-by-State analysis of Mr. MCCONNELL. Mr. President, I studies have indicated in various ways the cost of cap and trade on ag indus- want to begin by thanking the Judici- that the likely impact of cap and trade tries; a crop-specific analysis; an anal- ary Committee staff, as well as Sen- would include increased electricity and ysis of how the legislation would im- ators LEAHY and SESSIONS, for con- heating costs, construction costs, fer- pact livestock producers; finally, ducting a collegial, civil, and dignified tilizer prices, higher gas, and higher USDA’s assessment of how many acres hearing on the matter of the Supreme diesel prices. Different studies come up will be taken out of production as a re- Court nomination. In my view, the with varied numbers, but they all paint sult of the bill and what impact this hearing was in perfect keeping with the the same picture—agriculture loses. will have on food availability, the cost importance of the task before it. None of this should surprise anyone of food, fiber, feed, biofuels, and other Article II, section 2 of the Constitu- because the bill is specifically designed ag products. tion says the President ‘‘shall nomi- to increase the cost of energy. Without detailed analysis, USDA’s nate’’—‘‘by and with the Advice and In fact, according to the Congres- assertions about costs and benefits will Consent of the Senate’’—‘‘Judges of the sional Budget Office: simply ring hollow. Why wouldn’t the supreme Court.’’ It is an obligation Reducing emissions to the level required USDA provide this information? Isn’t that all of us in the Senate take very would be accomplished mainly by stemming this why the department exists? Agri- seriously, even though Senators have demand for carbon-based energy by increas- culture is going to be directly im- not always agreed on the exact mean- ing its price. pacted by the legislation. Yet we have ing of the phrase ‘‘advise and consent.’’ We also know farmers in America’s no analysis from the people’s depart- In fact, it has been the subject of sig- heartland get hit worse by these high ment. If the people who feed the world nificant disagreement and struggle energy costs, and we know that USDA are going to get hammered by this leg- over the years. agrees. Last week, USDA officials indi- islation, we should know about it. We I remember from my days as a young cated in testimony to the Senate Envi- should debate it, and we should vote on staffer on the Senate Judiciary Com- ronment and Public Works Committee it on this floor. mittee in the late 1960s and early 1970s, that as a result of cap-and-trade legis- I hope the third time is the charm for when the debate flared up over the lation: the USDA, and they bring more than nominations of Clement Haynsworth The agriculture sector will face higher en- rhetoric to Wednesday’s hearing. Cap and Harrold Carswell after a full cen- ergy and input costs. and trade will not affect States, crops tury in which appointments to the Su- At the very least, all of this tells us or regions equally. It will have a dif- preme Court had more or less been a that this is an enormously complicated ferent impact on a corn farmer in Ne- sleepy Presidential prerogative. issue with significant economic rami- braska than on a chicken farmer in Ar- It was during that time that I first fications, perhaps as complex as any we kansas. Similarly, it will impact a grasped the danger of politicizing the will deal with this Congress, not to dairy farmer in New York differently process. By focusing on a nominees’s

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.001 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7669 ideology or political views above all Most Americans, and certainly most of Republican nominees on the insist- else, I feared the Senate would end up Kentuckians, do not think those kinds ence of special interest groups and in distorting its traditional role of pro- of things. Yet despite that, I and the complete contravention of Senate tra- viding advice and consent and weaken vast majority of my Republican col- dition—often relying on the flimsiest the Presidential prerogative of making leagues voted for Justice Ginsburg. of pretexts for doing so. appointments to the Court. Why? Because the Constitution gave As a result, several widely respected, I was so concerned, in fact, about the the President the power to nominate. highly qualified nominees saw what potential dangers that I wrote a law re- And, in my view, Justice Ginsburg met should have been a high honor trans- view article on the topic, which I have the traditional standards of com- formed into a humiliating and painful repeatedly returned to over the years. petence, distinction, temperament, and experience for themselves and for their Its purpose was to establish a meaning- ethical conduct. families; the country was deprived of ful standard for considering Supreme The vote in favor of Justice Ginsburg their service on the circuit court; and Court nominees that would bring some was 96 to 3. The vote in favor of Justice the standard I had articulated and ap- consistency to the process. Breyer was 87 to 9. I voted for both, plied throughout my career became in- In the course of developing that just as I had voted for every previous creasingly irrelevant. standard, I went back and looked at Republican nominee to the high Court Despite my efforts to preserve def- the history of nominations, and I no- since my election to the Senate—con- erence and keep ideology out of the ticed something interesting: Every sistent with my criteria and based on process, the proponents of an ideolog- time a Senator had opposed nominees their qualifications. ical test had won the fight; they in the past, the reason for doing so was In voting for nominees such as Gins- changed the rules. Filibustering nomi- almost always based on the nominees’s burg and Breyer, it was my hope that nees on the grounds of ideology alone ‘‘fitness’’—even if it was perfectly clear broad deference to a President’s judi- was now perfectly acceptable. It was to everyone else that the Senator’s op- cial nominees would once again become now Senate precedent. position was based on political or ideo- the standard. Even if the treatment of Some may argue that Republicans logical differences. Republican nominees, such as Robert were no better since a few of them sup- What this polite fiction showed me, Bork and Clarence Thomas, suggested ported filibusters against two Clinton- quite clearly, was that up until fairly that many Democrats felt differently era nominees, Richard Paez and Mar- recent history, ideology had never been than I did, it was still possible at that sha Berzon. It is a flawed comparison. viewed as an openly acceptable reason time to imagine a day when the tradi- First, neither filibuster attempt got to oppose a nominee. And, in my view, tional standard would reemerge. As it very far. And in both cases, the leader- this aversion to a political litmus test turned out, that hopefulness was mis- ship—the leadership—of the Republican was a good convention and well worth placed and short-lived. Party, including me, strongly opposed following if we wanted to avoid grid- Things changed for good during the the effort. lock every time the White House last administration. It was then that Senator Lott, the then-majority switched parties. the Democrats turned their backs on So I developed a list of fairly stand- leader at the time, voted in favor of al- the old standard once and for all. Ide- ard criteria that I had hoped would lowing an up-or-down vote on both ology as a test would no longer be the govern the process: A nominee must be nominees, even though he would ulti- exception but the rule. The new order competent; have obtained some level of mately vote against them as nominees was firmly established at a Democratic distinction; have a judicial tempera- to the Ninth Circuit, as did I and the ment; violated no existing standard of retreat in April 2001 in which a group vast majority of our conference. It was ethical conduct; and have a clean of liberal law professors laid out the our view that a President—and in that record in his or her life off the bench. strategy for blocking any high-level instance President Clinton—deserved In short, a President should be given conservative judicial nominee. The considerable deference and that there- great deference on his choice of a strategy was reinforced during a series fore his nominees should not be filibus- nominee, and these criteria certainly of hearings in which Senator SCHUMER tered. allowed that. As a Senator, I have con- declared that ideology alone—ideology The new standard devolved even fur- sistently applied these criteria to Su- alone—was sufficient reason to block ther during the Roberts nomination. preme Court nominees by Presidents of judicial nominees. Judge Roberts was a spectacular nomi- both parties. These events marked the beginning nee, a man whose background and legal In adhering to this standard, I was of a seismic procedural and substantive abilities, even according to Democrats, confident I had history on my side. De- shift on judicial nominees, and the re- made him one of the most qualified Su- spite a few notable exceptions, during sults were just as I had anticipated as preme Court nominees in the history of the last century the Senate understood a young staffer. Democrats would now our country. For him, Democrats came its advice and consent role to be lim- block one highly qualified nominee up with an even more disturbing test. ited to an examination of a nominee’s after another to the appeals court for Ironically, no one Senator articu- qualifications, not his or her ideology. no other reason than the fact that they lated this new test more forcefully This attitude is consistent with the were suspected of being too conserv- than Senator Obama. In a floor speech Framers’ decision, after no little de- ative for their tastes. announcing his opposition to John bate, to invest the President, not the Miguel Estrada was one of the first Roberts, Senator Obama was perfectly Senate, with the power to nominate victims of the new standard. Because straightforward. Roberts was com- Justices. They did not want politics to he had been nominated by a Repub- pletely qualified, he said. But he still interfere. And that is why it has al- lican, Estrada got no points for his would not get his vote. Here is what ways been my view that opposing a compelling personal story, despite the Senator Obama said on the Senate nominee to the Supreme Court because fact that he had come here as a child floor: he or she has a different judicial phi- from Honduras, went to Harvard Law There is absolutely no doubt in my mind losophy than I do was not a valid rea- School, clerked on the U.S. Supreme Judge Roberts is qualified to sit on the high- son for doing so. Court, and served as a prosecutor in est court in the land. Moreover, he seems to During the Clinton years, I had no il- New York and at the Justice Depart- have the comportment and the temperament lusions about the ideology or political ment. He was blocked by seven leader- that makes for a good judge. He is humble. views of Stephen Breyer or Ruth Bader ship-led filibusters—an unprecedented He is personally decent. Ginsburg. Justice Ginsburg’s views on action for an appeals court nominee. The reason Senator Obama would a number of contentious issues were Opponents of the Estrada nomination vote against Judge Roberts, he said, well known and clearly different than were ruthless and eventually succeeded rested not on any traditional standard, my own, such as her view that Moth- in driving him to withdraw from con- but on a new one, a standard which er’s Day should be abolished or that sideration after more than 2 years of amounted to a kind of alchemy based the Boy Scouts and Girl Scouts should entrenched opposition. He was not on what he described as ‘‘one’s deepest be criticized for perpetrating false alone. Democrats employed the fili- values, one’s core concerns, one’s stereotypes about gender. buster strategy against an entire block broader perspectives on how the world

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.003 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7670 CONGRESSIONAL RECORD — SENATE July 20, 2009 works, and the depth and breadth of edly doubted the ability to adhere to were brought before it. In this term, in one’s empathy’’—what has come to be this core principle. fact, she is zero for three. Not only known as the ‘‘empathy standard.’’ This doesn’t mean I would oppose a isn’t this a record to be proud of, to- So over the course of the Bush ad- nominee just because he or she is nomi- gether with her statements about im- ministration the rules completely nated by a Democrat. It means that, at partiality, it is a record to be scared of changed. Not only had it become com- a minimum, nominees should be ex- if you happen to find yourselves stand- mon practice to block nominees on the pected to uphold the judicial oath that ing in front of Justice Sotomayor. grounds of ideology, but now it was ac- judges in this country have taken since Her most recent reversal by the ceptable to reject someone based solely the earliest days of our Nation; name- Court is a perfect illustration of how on the expectation that their feelings— ly, that they will ‘‘administer justice her personal views can affect an out- their feelings—would not lead them to without respect to persons, and do come. I am referring to the Ricci case rule in favor of certain groups. Sud- equal right to the poor, to the rich, and in which a majority of the Justices of denly, judges were not even expected to . . . faithfully and impartially dis- the Supreme Court rejected Judge follow the fundamental principle of charge and perform all the duties in- Sotomayor’s decision, and all of them, blind justice. Deference had eroded cumbent upon them under the Con- all nine of them, agreed that her read- even more. stitution and laws of the United ing of the law was flawed. As I have stated repeatedly through- States, so help [them] God.’’ This was a case in which a group of out this debate, empathy is a very good Looked at in this light, Judge firefighters who had studied hard and quality in itself. And I have no doubt Sotomayor’s record of written state- passed a written test for promotion that Senator Obama—now President ments suggests an alarming lack of re- were denied it because not enough mi- Obama—had good intentions, and that spect for the notion of equal justice nority firefighters had scored as well as his heart was in the right place when and therefore, in my view, an insuffi- they had. In a one-paragraph opinion he made this argument. But when it cient willingness to abide by the judi- that a number of judges on her own comes to judging, empathy is only good cial oath. This is particularly impor- court criticized as insubstantial and less than adequate given the serious- if you are lucky enough to be the per- tant when considering someone for the ness of the circumstances, Judge son or group that the judge in question Supreme Court since, if she were con- Sotomayor flatly rejected an appeal by has empathy for. In those cases, it is firmed, there would be no higher court firefighters who had scored highly. the judge, not the law, who determines to deter or prevent her from injecting Here was a case where Judge the outcome. And that is a dangerous into the law the various disconcerting Sotomayor’s long history of advocacy road to go down if you believe, as I do, principles that recur throughout her for group preferences appeared to over- in a nation not of men but of laws— public statements. For that reason, I take an evenhanded application of the which brings us to Judge Sotomayor. will oppose her nomination. law. Judge Sotomayor didn’t Judge Sotomayor has made clear Over the past several weeks, Judge empathize with the firefighters who over the years that she subscribes to a Sotomayor has impressed all of us with had earned a promotion, and they suf- number of strongly held and controver- her life story. And the confirmation fered as a result. This is the real-world process is not easy. I admire anyone sial beliefs that I think most Ameri- effect of the empathy standard. If the who goes through it, which is why I cans, and certainly most Kentuckians, judge has empathy for you, great, but was gratified by Judge Sotomayor’s would strongly disagree with, but that if she has it for the other guy, it is not statement at the conclusion of the is not why I oppose her nomination; so good. That is why you can call this hearing that she was treated fairly by rather, it is her views on the essential new standard a lot of things, but you everyone. question of the duty of a judge and the certainly can’t call it justice. But the first question I have to ask fact that there would be no check on Judge Sotomayor’s record on the myself in deciding how to vote on this those views were she to become a mem- Second Circuit is troubling enough, nominee is this: How stands the tradi- ber of the Supreme Court. but, as I have noted, at least on the cir- tional standard for voting on nomi- In her writings and in her speeches, cuit court there is a backstop. Her nees? Judge Sotomayor has repeatedly stated cases can be reviewed by the Supreme Deference is still an important prin- that a judge’s personal experiences af- Court. This meant that in the Ricci ciple. But it was clearly eroded during fect judicial outcomes. She has said her case, for example, the firefighters the filibusters of appeals court nomi- experiences will affect the facts she whose promotions were unfairly denied nees early in the Bush administration, chooses to see as a judge. Let me say could appeal the decision. Fortunately and it was eroded even further when that again. She has said her experi- for them, the Supreme Court sided Senators voted against John Roberts ences will affect the facts she chooses with them over Judge Sotomayor. If, and tried to filibuster Samuel Alito. to see as a judge. She has argued that however, Judge Sotomayor would be- Moreover, the introduction of a new in deciding cases, judges should bring come a Supreme Court Justice, her rul- standard—the empathy standard— their sympathies and prejudices to ings would be final. She would be forces us to reevaluate again the de- bear. She has dismissed the ideal of ju- unencumbered by the obligation of gree of deference a President should be dicial impartiality as an ‘‘aspira- lower court judges to follow precedent. granted. Isn’t it incumbent upon even tion’’—an aspiration—that, in her She could act more freely on the kinds those of us who have always believed in view, cannot be met even in most of views that animated her troubling deference to be even more cautious cases. Taken together, these state- and legally incorrect ruling in the about approving nominees in this new ments suggest not just a sense that im- Ricci case. That is not a chance I am environment? I believe it is. partiality is not just impossible but it willing to take. If empathy is the new standard, then is not even worth the effort. From the beginning of the confirma- the burden is on any nominee who is But there is more. It appears these tion process, I have said that Ameri- chosen on that basis to show a firm views have already found expression in cans expect one thing when they walk commitment to equal justice under Judge Sotomayor’s rulings from the into a courtroom, whether it is a traf- law. In the past, such a commitment bench. The clearest evidence of this is fic court or the Supreme Court, and would have been taken for granted. the judgment of the Supreme Court that is equal treatment under the law. Americans have always had faith that itself. The Supreme Court doesn’t take Over the years, Americans have accept- our judges would apply the law fairly— easy cases. It only takes cases where ed significant ideological differences in or at least always knew they should. there is no easy precedent, where the the kinds of men and women various Unfortunately, the new empathy stand- law is not crystal clear, cases where Presidents have nominated to the Su- ard requires a measure of reassurance somebody’s policy preferences can preme Court, but one thing Americans about this. If nominees aren’t even ex- more easily make their way into an will never tolerate in a nominee is a pected to apply equal justice, we can’t opinion. In this vein, it is worth noting belief that some groups are more de- be expected simply to defer to the that the Supreme Court has found that serving of a fair shake than others. President, especially if that nominee, Judge Sotomayor misapplied the law in Nothing could be more offensive to the as a sitting judge, no less, has repeat- 9 of the 10 cases in which her rulings American sensibility than that.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.004 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7671 Judge Sotomayor is a fine person and whether we continue production of the President of the United States, the with an impressive story and a distin- it is set aside while we debate non- Secretary of Defense, the Chairman of guished background. But above all else, germane amendments to the Defense the Joint Chiefs of staff, and our other a judge must check his or her personal authorization bill. military leaders think should be spent or political agenda at the courtroom So I guess what is probably going to on the Joint Strike Fighter rather door and do justice evenhandedly, as happen, from previous experience—and than further production of the F–22. the judicial oath requires. This is the I don’t know—probably around Thurs- From what I understand, it may be a most basic and therefore the most fun- day, the majority leader will come to close vote and a very interesting one. I damental standard of all upon which the floor and say that we haven’t wish we were spending more time de- judges in our country must be judged. moved forward and we haven’t made bating that than hate crimes and gun Judge Sotomayor does not meet the progress, blame it on this side of the amendments. test. aisle, and file cloture. Then we will Mr. President, I yield the floor. Mr. President, I yield the floor. have a vote on cloture. I would imagine The ACTING PRESIDENT pro tem- The ACTING PRESIDENT pro tem- that given—I don’t know how that vote pore. The Senator from Michigan is pore. The Senator from Arizona. turns out; it depends on whether Mem- recognized. Mr. MCCAIN. Mr. President, I con- bers on both sides of the aisle feel their Mr. LEVIN. Mr. President, first of gratulate the Republican leader on his amendments or their views have been all, we are operating under a unani- statement. I think it was very thor- adequately addressed. mous consent agreement. We have an ough. I think it was very thoughtful, But I am convinced that we would agreement to vote on the F–22 amend- and I am sure it took a lot of hours of have moved forward with the author- ment after 2 hours of debate. We are at- deliberation and observation not only ization bill, that we probably could tempting to schedule that now. People of Judge Sotomayor’s record but also have addressed the issue of the F–22— are getting the cooperation of Members of her testimony before the Judiciary and I do not say this side of the aisle is for tomorrow morning. That is our Committee. So I congratulate the Re- blameless, but I do understand why, goal. publican leader on a very thoughtful when we knew hate crimes was going The pending amendments to the hate statement and one that I think makes to be brought up, that those who feel crimes provision are going to be dis- very clear the reason he reached the strongly on this side of the aisle—in- posed of this afternoon pursuant to difficult decision to oppose the nomi- cluding the fact that it never went that same unanimous consent agree- nation of Judge Sotomayor for the U.S. through the Judiciary Committee; it ment. There may be a difference as to Supreme Court. has never been reported out but is how we got to where we are. There is a I wish to say that we are supposed to added on a defense authorization bill— difference; it was the inability to get be on the Department of Defense au- had their concerns. So it is unfortu- the F–22 amendment to a vote, to get a thorization bill. Obviously, we are not. nate. It is unfortunate, and it is not time agreement, which triggered the We are on the hate crimes bill, which really a good statement about the way determination of the majority leader the majority leader decided was impor- we represent the American people, be- to offer an amendment that Senator tant enough to replace the proceedings cause if there is any legislation we KENNEDY had offered about 2 years ago of the Senate on the Defense authoriza- should be moving forward on—and I on a Defense authorization bill. It tion bill and the very urgent mission will take responsibility on this side of passed the Senate after a long debate. we have and obligation and duties we the aisle too—that certainly is the De- It is not the first time hate crimes have as a Congress to authorize the fense authorization bill. was taken up by the Senate. It is not means necessary to defend the security I believe there is an unbroken record the first time the hate crimes amend- of this Nation and the men and women of approval of the Defense authoriza- ment was offered on the Defense au- who are defending it. So we will be tion bill over a many-year period of thorization bill. It was offered 2 years wrapped around the axle on amend- time. I hope that, on behalf of the ago, and it passed on a 60-to-39 vote, I ments and which ones are allowed and greater good, we can sit down and work believe. It was Senator KENNEDY’s time agreements. I am not saying this out amendments and work through the amendment. Of course, Senator KEN- legislation would have moved forward hate crimes and the amendment by the NEDY is not available now to offer his smoothly; there are always some dif- Senator from South Dakota, and we own amendment. The majority leader ficulties. But for many years now, I can move forward and get this issue re- offered it because of Senator KEN- have been involved in the authoriza- solved. I don’t think it is the right way NEDY’s necessary absence. tion bill, and this is the first time I to do business, particularly when we So now we are operating under a ever saw the majority leader of the are talking about the defense of the unanimous consent agreement. The Senate come forward and propose a Nation. pending amendment is Senator comprehensive piece of legislation So I pledge to my colleague from THUNE’s. It is not germane, but, again, which had not gone through the com- Michigan, the distinguished chairman it is not unusual that nongermane mittee of authorization, and, of course, whom I have had the great honor of amendments are offered in the Senate. this side of the aisle then had to, as is working with for many years, to try to We try to keep them to a minimum— our right, propose an amendment of work through this. But I still maintain those who manage bills—in order to get our own. Of course, there is some reluc- that the fact that the majority leader through the bill. tance on this side of the aisle to agree of the Senate felt it necessary to bring We are hoping that once the F–22 to a time agreement, and so we go back a hate crimes bill up before the Senate amendment and the amendment of and forth. Meanwhile, the men and on a defense authorization bill, which Senator THUNE are disposed of, we will women of the military are in two wars is clearly not germane, triggered this then be able to get back to germane and they don’t quite understand why situation we are in today. and relevant amendments. That is our we don’t just move forward and do Having said that, it is what it is, and hope. In order for that to happen, we what our oath of office requires us to so I will go in the back now and see need Members of the Senate to bring do, and that is to support and defend where we can work out amendments, those amendments to the floor and tell the Constitution of the United States. see if we can work out an agreement to us they are ready to proceed. So I will continue to work with the dis- have the hate crimes vote, to have the We are working very hard, as we al- tinguished chairman, and I am hoping gun vote, and then hopefully work with ways do, and our staffs are working we will be able to work together to get the target of tomorrow morning for very hard, as they always do, to clear the legislation moving again. voting on the F–22 since, as we have amendments. I believe we have about I understand there are four amend- discussed in the past on the floor of the 20 amendments that have been cleared ments to be considered on the hate Senate, the importance of that vote is already and, at an appropriate time, I crimes bill and that a gun amendment far transcendent of any single weapons believe Senator MCCAIN and I will be has been introduced and there may be system. It is really all about whether able to offer them as a package. amendments on that, and time agree- we are going to have business as usual Senator MCCAIN was extremely help- ments. Meanwhile, the issue of the F–22 and spend taxpayers’ money on what ful in getting us to the point where we

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.005 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7672 CONGRESSIONAL RECORD — SENATE July 20, 2009 could enter the unanimous consent Despite uncertain times our Nation is shattered when one thinks of agreement. A vote is scheduled today faced, we refused to succumb. We achievements such as the Moon land- on our hate crimes-related amendment. moved forward in the most American ing—not to mention Medicare, Social We have a time agreement on the F–22 way—working to achieve what others Security, and all we talked about in amendment, and a time for voting on said could not be done. that progressive era. that amendment is being discussed. It I was 16 years old when Neil Arm- From the six Apollo landings, to is my goal that we vote on that amend- strong took that historic first step. Skylab, to cooperation with the Soviet ment tomorrow morning after we de- Neil Armstrong is from Wapakoneta, Union, to the shuttle program, to the bate it. OH, in the western part of the State, Hubble telescope, to the space shuttle, Please, colleagues, bring your amend- with just shy of 10,000 people and a lit- and beyond, NASA has touched and im- ments to the floor. We are here. We are tle more than 100 miles or about a 2- proved nearly every aspect of our ready to be notified of those amend- hour drive from where I grew up. American way of life. ments on which Members of the Senate I remember those days when I was 16. Those who believe government believe we will need a rollcall vote. We We had a black-and-white television, should sit on the sidelines and merely will try to clear as many amendments and my brother convinced my parents, be an observer in our Nation’s future as we can. We urge our colleagues to because we were the only ones among need not look back 40 years but can notify us now of the amendments they our friends who still had a black-and- look at everything NASA has done and intend to offer. white TV, that they should go out and what it continues to do today. Mr. President, I ask unanimous con- get a colored TV so we could watch the Today, NASA, in many ways, is more sent that amendment No. 1614 be iden- Moon landing. I think my brother important than ever. As we work to- tified as a Kennedy amendment. knew—although I am not sure—that ward a carbon-free economy, we forget The ACTING PRESIDENT pro tem- the Moon landing would be broadcast that NASA was building the first large- pore. Without objection, it is so or- in black and white. But my brother scale windmills in the 1970s. Much of dered. convinced my parents to get that TV, the early work on wind turbine tech- Mr. LEVIN. Mr. President, I suggest on which we enjoyed watching Cleve- nology development was done at Plum the absence of a quorum. land Indians baseball games and other Brook in northern Ohio, near San- The ACTING PRESIDENT pro tem- things after that. Nonetheless, I am dusky, part of NASA Glenn. pore. The clerk will call the roll. sure almost everybody of almost any In a modern version of the space The assistant legislative clerk pro- age remembers, after watching that race, the United States is in a sprint to ceeded to call the roll. Moon landing, going outside on that lead the world in clean energy. NASA’s Mr. BROWN. Mr. President, I ask late July night and looking up at the alternative fuel research laboratory, unanimous consent that the order for Moon and being private with our and its solar-powered aircraft, Helios the quorum call be rescinded. thoughts, wondering about these two and Pathfinder Plus and its space solar The ACTING PRESIDENT pro tem- Americans walking on the Moon, won- program are just three of the many pore. Without objection, it is so or- dering about the other American in the NASA clean energy programs. dered. space capsule—not at that time able to We can create a carbon-free world, Mr. BROWN. Mr. President, I ask walk on the Moon. He was staying in- and NASA can lead the way, just like unanimous consent to speak as in side the space capsule. it has in aeronautics and space flight. I remember, too, 7 years before Neil morning business. We must never forget the men and Armstrong landed on the Moon, similar The ACTING PRESIDENT pro tem- women of NASA and their work that to most Americans, watching John pore. Without objection, it is so or- enabled the United States to put Apol- Glenn, from New Concord, OH, become dered. lo 11 on the Moon. MOON LANDING ANNIVERSARY the first American to orbit the Earth. So an Ohioan was the first one to I am proud to cosponsor S. 951, which Mr. BROWN. Mr. President, I rise to orbit the Earth and an Ohioan was the would authorize the President to award celebrate the historic event that took first to walk on the Moon. Congressional Gold Medals to Neil A. place on this date 40 years ago. On this Today, such as then, NASA continues Armstrong, the first human to walk on day in 1969, Ohio native Neil Arm- to capture our Nation’s imagination. the Moon; Edwin E. ‘‘Buzz’’ Aldrin, Jr., strong became the first human to step While Neil Armstrong will forever be the pilot of the lunar module and sec- foot on the Moon. remembered as the Christopher Colum- ond person to walk on the Moon; Mi- For those of us old enough to remem- bus of our time, his step for all human- chael Collins, the pilot of their Apollo ber that day, it was a day when the kind was a culmination of the efforts of 11 mission’s command module; and the stuff of dreams became reality. While thousands of Americans who dedicated first American to orbit the Earth, John that magical moment is still a source themselves to landing on the Moon. Herschel Glenn. of inspiration for young people today, It was more than his crew mates, The bill’s sponsor is Senator NELSON the times in which the landing took Buzz Aldrin and Michael Collins. It was of Florida, an American hero in his place are often forgotten. The United more than the hundreds of men and own right, who has a long history of States and the Soviet Union were in women at mission control. From what service to our Nation and NASA. the middle of the space race, but the is now NASA Glenn Research Center in Today is a celebration of NASA, of Moon landing was about so much more Cleveland to the hundreds of thousands the Apollo mission, and a celebration than who could get there first. of scientists and researchers around of our country. It is also a celebration It was the height of a major progres- the Nation, the Moon landing was of humankind’s ability to do great sive era in our Nation’s history, which about the American spirit and know- things. Today is a celebration of reach- saw the establishment of Medicare and how. The Apollo 11 Moon landing was a ing for the stars in every way. Medicaid; saw the Civil Rights and national collaborative success. I yield the floor and suggest the ab- Voting Rights Act signed into law; the As we look back on the past 40 years, sence of a quorum. creation of Head Start; a time which we have seen a different country in a The ACTING PRESIDENT pro tem- saw the beginning of the environ- different time, with many of the same pore. The clerk will call the roll. mental movement in our time, all challenges. As our Nation struggles to The assistant legislative clerk pro- within about a 5-year period, during pull itself out of the current economic ceeded to call the roll. that progressive era. downturn, we have debated what role Mr. SESSIONS. Mr. President, I ask It was also a time of turmoil for the government should play in space unanimous consent that the order for America. We were a nation at war. We exploration. While we debate the future the quorum call be rescinded. bore witness to the assassinations, of NASA, we must also remember the The PRESIDING OFFICDER (Mr. only a year before, of Dr. Martin Lu- billions of dollars of economic benefit WARNER). Without objection, it is so ther King and Robert Kennedy. NASA has brought, and is still bring- ordered. When America needed heroes—and it ing, our Nation. Mr. SESSIONS. Mr. President, I am did that summer in 1969—it found them The myth that the Federal Govern- very concerned about legislation that in the crew of the Apollo 11 spacecraft. ment is incapable of doing great things has been added to the Defense bill, the

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.006 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7673 so-called Hate Crimes Act. Certainly, do the fabulous job they have been rolling in public schools, enjoying the none of us has any sympathy whatso- doing. We should not deviate from this benefit of programs administered by ever for people who commit crimes of path by addressing matters wholly un- the State, or attending court as a any kind, particularly those who would related to the defense of our Nation. juror. attack somebody because of their race, A bill of such breadth and lack of In 1968, care was taken to ensure that ethnicity, sexual orientation, or any clarity as this should be carefully re- the underlying statute was carefully other reason. I wish to take a few mo- viewed with the opportunity for discus- crafted and narrowly tailored to ad- ments to explain why this is important sion and amendment in committee. Yet dress the problem of access to ensure and why this legislation is not good this legislation had no markup in any that criminal activity fell within the and it ought not to be passed. Some of committee. In fact, no version of the confines of the constitutional require- my remarks may appear to be tech- bill has been marked up since 2001, and ment that there be a Federal nexus nical, but they are very important, in this version is quite different and more with interstate commerce. The statute my view, as a former Federal pros- expansive than the 2001 bill. enumerates six instances in which a ecutor for almost 15 years. The committee did hold a quickly crime could be charged. That statute I don’t think it was ever appropriate thrown-together hearing on June 25 in says this: that we bring this legislation to the which Attorney General Holder himself Whoever, whether or not acting under the floor and stick it on this Defense bill appeared. The Attorney General, how- color of law, by force or threat of force will- without having a markup in the com- ever, failed to point to one single seri- fully injures, intimidates or interferes with, mittee without the ability to discuss it ous incident in the past 5 years, when or attempts to injure, intimidate or interfere and improve it. I asked him that question, where the with any person because of his race, color, For years legal commentators and ju- types of crimes that are referred to in religion or national origin and because he is or has been. . . . rists have expressed concern at the the bill, to give special Federal protec- tendency of Congress, for the political tion to select individuals, were not And then it lists specific areas that cause of the moment, to persist in add- being prosecuted by State and local would encompass a criminal offense. ing more and more offenses to the U.S. governments. (a) enrolling in or attending any public Criminal Code that were never Federal Additionally, the Attorney General school or public college. U.S. crimes before. This is being done refused to say attacks on U.S. soldiers So if anyone who was attempting to at the same time that crime rates over predicated on their membership in the attend a public school or college was the past decade or so have dropped and military by, for example, a Muslim interfered with or intimidated because State and local police forces have dra- fundamentalist, could be considered a of their race, color, religion or national matically improved their skills and hate crime. origin, that would be the offense. technology. There are really fine police It is baffling to me, given previous (b) participating in or enjoying any ben- forces all over the country today. An opposition and serious concerns which efit, service, privilege, program, facility or extraordinary number of police officers have been raised about this legislation, activity provided or administered by any have college degrees and many ad- that the act, instead of being con- State or subdivision thereof. vanced degrees. strained, is actually expanded in a In other words, you can go to the city I think two questions should be vague and awkward way. It focuses on hall, you can go to the health depart- asked initially. First, is this a crime the perception of what someone might ment, and you cannot be discriminated that uniquely affects a Federal inter- have been thinking when they com- against because of your race or back- est, and can it be addressed by an effec- mitted the crime and includes cat- ground. tive and enforceable statute? Second, egories which are undefined and ex- Unfortunately, I have to say there have local police and sheriffs’ offices ceedingly broad, such as gender-related were areas of the country—particularly failed to protect and prosecute this characteristics and gender identity. in my area of the South—where that vital interest? From questions that have been raised, was not so. People were being unfairly Most people do not understand that a these categories do not have clear treated. In fact, in some other areas of majority of crimes—theft, rape, rob- meaning. During the course of debate the country also. I believe great care bery, and assault—are not Federal on hate crimes legislation—a debate was taken with that act because, as I crimes and are not subject to inves- that started in 2001—amendments have said, there was strong evidence to sug- tigation by the FBI or any other Fed- been offered to also protect our mili- gest that a Federal expansion of crimi- eral agency. They could not do so if tary men and women, where it is un- nal law would be appropriate to deal they wanted to because they have no questioned they have been targeted. with it. jurisdiction. They can only investigate Those amendments were rejected. So the history of civil rights viola- Federal crimes. It has been this way Mr. President, I will briefly outline tions caused and fully justified since the founding of our country, and my opposition to the legislation in the Congress’s passage of this statute. it fixes responsibility for law enforce- following ways: There was direct evidence, for example, ment on local authorities where it The hate crimes amendment is un- that African Americans were being de- should be. warranted, possibly unconstitutional— nied the right to vote or intimidated at Americans have always feared a mas- certainly, I believe it is unconstitu- voting precincts without State and sive Federal Government police force. tional in certain parts—and it violates local law enforcement protecting them. It is something that we have not ever the basic principle of equal justice There was much evidence, sadly, that favored. This is not paranoia but a wise under the law. The hate crimes amend- other rights of African Americans were approach, and I do not think it should ment to this bill has been said to not being protected. be changed. cheapen the civil rights movement. But that is not the case with this Instead of administering justice When Congress passed the original amendment, and I will talk about that without fear or favor, this legislation civil rights statute in 1968, it in a minute. Gays and lesbians have that has been placed on this bill cre- criminalized violent and discrimina- not been denied basic access to things ates a new system of justice for indi- tory actions directed at individuals be- such as health or schooling or to the viduals because of their sexual orienta- cause of race, color, religion, or na- ballot box. They openly are able to ad- tion or gender identity, providing them tional origin. There was, sadly, quite a vocate their positions today, which I with a special protection, while exclud- substantial body of evidence that think is certainly healthy, and have no ing vulnerable individuals, such as the crimes were being committed against difficulty in approaching government elderly or police officers or soldiers, minorities and they were not being officials at whatever level. from such special protections. I don’t prosecuted. Section 245 that was then When Eric Holder testified a few think we can justify that. passed was never envisioned by Con- weeks ago before the Judiciary Com- The purpose of the DOD reauthoriza- gress to be a hate crimes statute but mittee, I asked him point-blank for di- tion bill is to make sure the men and one, rather, that would ensure access rect evidence that hate crimes against women who protect our freedoms have by minorities to specific activities le- individuals over the past 5 years, be- the necessary resources to continue to gitimate to their freedom, such as en- cause of their sexual orientation or

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.012 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7674 CONGRESSIONAL RECORD — SENATE July 20, 2009 otherwise, were not being prosecuted dence to prove beyond a reasonable forcement. The Department does not have by local authorities. Instead of answer- doubt that the offense that occurred access to precise statistics of hate crimes ing the question, he referred me to four was to deny the victims access to the that have gone unprosecuted at the State and local level, and we are unaware of any cases in his written testimony which restaurant. So they had a trial, and one source for such comprehensive information he had delivered to the committee. Let was convicted and two were not. of unprosecuted offenses generally. Federal me make the number clear as strong The Attorney General cited a South jurisdiction over the violent bias-motivated evidence that these cases are being Carolina case where a gay man was as- offenses covered under S. 909 is needed as a prosecuted. saulted after leaving a bar. During the backstop for State and local law enforce- The Attorney General could not altercation, he fell and he suffered a ment, to ensure that justice is done in every come up with 4,000 cases or 400 or 40 fatal strike to the head from the con- case. cases. He only named four cases in 5 crete. Stephen Miller was convicted of So he is suggesting that, in a select years. So we took a look at those four involuntary manslaughter and sen- group of cases that are on the front cases he cited in his testimony, and tenced to 5 years in prison. burner today, the Attorney General this is what we found. Finally, the Attorney General cited a needs this legislation—S. 909, which In one case, Joseph and Georgia Silva case from here in the District of Co- has now been attached to the Defense assaulted an Indian-American couple lumbia where a transgender prostitute bill—as a backstop for State and local on the beach. Although there was evi- was murdered. Apparently, after Der- law enforcement to ensure that justice dence that racial and ethnic slurs were rick Lewis discovered that the pros- is done in every case. used during the altercation, a Cali- titute he had picked up in his auto- Well, there are many prosecutorial fornia El Dorado County judge ruled mobile was not female, and the pros- and jury decisions that are made in that prosecutors failed to produce suf- titute refused to get out of his car, an State courts every day with which one ficient evidence that the alleged as- altercation of some kind occurred—an could disagree. The question is whether sault was motivated by racial preju- argument—and he had a gun and shot the Federal Government will be em- dice. The prosecutor had pursued a and killed this transgender individual. powered to ensure justice is done in hate crimes conviction, including He eventually pled guilty, gave a full every case. charging Silva with a felony assault, statement of what happened, and was I just want to share the reality of the punishable by up to 3 years in prison. sentenced to 10 years in prison. The world with my friends here, that any- The evidence, according to the judge, evidence showed they had begun fight- one, I guess, can conclude that a case was that racial slurs were used in the ing and that is when he pulled the gun didn’t end justly for them. One distin- heat of anger. There was no evidence and shot him. He said the individual guished jurist is famously quoted as the attack was initiated because of would not get out of the car. saying, ‘‘To speak of justice is the ethnicity. Well, those are not insignificant equivalent of pounding the table. It Both Joseph and Georgia Silva were crimes, but I can just advise my col- just adds an element of emotion to the convicted of assault, the basic crime leagues, if we just pause one moment discussion.’’ But whatever we mean by that they committed, and Joseph Silva and think, we know that at this very that word, it basically means the At- was sentenced to 6 months in prison moment thousands, maybe 10,000 or torney General gets to decide whatever and 3 months probation, while Georgia more trials are ongoing in State and he wants to do. I am not sure this is was sentenced to 1 year in prison. local courts all over America, and they good legislation. I think legislation So the question is, was there an im- do not always end as people would like ought to be crisp and clear and set portant Federal right left unaddressed them to end. What this bill does basi- forth criteria by which a prosecution that needed to be vindicated by charg- cally is it provides an opportunity for occurs or does not occur, leaving not so ing this couple again for the crime the Federal Government to pick and much broad discretion among the pros- arising from that assault? In other choose certain crimes they want to ecutorial authorities. words, that is what this bill does. It prosecute again to get the kind of jus- I submitted, after Senator COBURN— says if we are unhappy with the result tice they think might be likely. That is or at the same time, really—a similar in State court under a select group of a broad power that we give to the At- question because I believed he had not crimes, the Federal Government can torney General and a broad statute I been responsive to my question, and I try the case again. don’t believe is compelled by the facts asked this about our colleague, refer- You might say, well, there is a dou- that are happening in America today. ring to Senator HATCH—of course a ble jeopardy clause in the Constitution; When my staff followed up with the former chairman of the Judiciary Com- you can’t be tried twice for the same Office of the Attorney General to see mittee and who has worked on this crime. Good; if you asked that ques- why they listed just these cases, the re- issue for a number of years—and my tion, you get an A in constitutional sponse wasn’t that State and local law question is this: law. However, there is an answer. It enforcement were not doing their jobs Senator HATCH in the past has offered a has long been established that the but that the Attorney General believed complete substitute to similar legislation, States are sovereign and the Federal the cases were under prosecuted. Citing which would require that a study be con- Government is sovereign. So an indi- ducted to prove that there is an actual prob- four cases over 5 years as being under- lem with hate crimes not being prosecuted. vidual can be tried by two separate prosecuted is not the kind of evidence Do not give me a general response that there sovereigns without implicating the needed to justify the passage of such an are some problems out there. I would like double jeopardy clause of the Constitu- expansive new piece of legislation that you to provide the Committee with an exact tion. However, we have always under- injects Federal prosecutors in areas of and precise number of hate crimes the Jus- stood that ought not to be done lightly. crime not heretofore occurring. tice Department is aware of which have gone It ought not be done without a real jus- After the Judiciary hearing, both unprosecuted at the State and local level. Please detail every example you or anyone in tification because it violates the spirit Senator COBURN and I sent followup of the double jeopardy clause of the the Department of Justice is aware of where questions to the Attorney General to no prosecutorial effort took place. Constitution. provide him an additional opportunity This was the answer we got: Attorney General Holder also cited a to demonstrate that the bill was nec- 2003 case in Holtsville, NY. In that essary because of under prosecution, as The Department is unable to provide an case, three White men, while using ra- exact number of cases in which State, local he had testified. Senator COBURN asked or tribal jurisdictions have failed to pros- cial slurs, assaulted a group of Latino this question: ecute hate crimes because we are not aware teenagers as they entered a Chili’s res- Precisely how many hate crimes is the of any such compilation of data. taurant. One of the three defendants Justice Department aware of that have gone Senator HATCH has been offering this entered a guilty plea for his involve- unprosecuted at the State and local level? amendment for a study for a decade. ment in the assault and was sentenced This is the answer we got from the The Attorney General goes on to say: to 15 months in prison. The other two U.S. Attorney General: When the Department receives complaints defendants proceeded to trial and were The Department believes that our partners it clearly lacks jurisdiction to prosecute, acquitted because the jury apparently at all levels of law enforcement share our these matters generally are never opened as concluded there was insufficient evi- commitment to effective hate crimes en- investigations. . . .

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.013 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7675 Let me just say, if this legislation is whelmingly these despicable incidents Department of Justice representatives. They passed it will have one dramatic, are of vandalism, many by juveniles. repeatedly refused to disclaim the view that undiscussed impact. Federal law en- Let me make clear that even those in- all rape would be covered, and resisted ef- forcement agents—and there are not cidents are significant and deserve forts to correct any ambiguity by redrafting the language. They wanted a bill with broad many. You may have a city with 300 prosecution and investigation and, sweep. The last thing they wanted was to police officers in it and 10 FBI agents, where appropriate, stiff punishment. limit the scope of the statute’s reach by re- another hundred sheriffs’ deputies, an- But let’s look at the views of the mem- quiring that the defendant be motivated by other number of State officers. Now bers of the U.S. Commission on Civil ill will toward the victim’s group. huge numbers of crimes will be coming Rights, our own U.S. Civil Rights Com- I think that is a serious charge made across the desk of the FBI, which has mission, who have examined this legis- by a member of the Civil Rights Com- terrorism, white-collar crime, bank lation carefully. Six of its eight mem- mission about the purpose of the De- fraud which they need to be working on bers signed a strong letter to the Presi- partment of Justice in supporting this today, violent crimes and drug smug- dent and to the Judiciary Committee act. gling. Now they are going to have to to oppose hate crimes legislation. Did I I would note, it is an inevitable de- review hundreds of complaints about mean to say the Civil Rights Commis- light of prosecutors to have more and cases they had not heretofore had ju- sion wrote in favor it? No. But to op- more power and more and more ability risdiction of and did not have to re- pose it. Their letter, dated June 16— to prosecute criminals. That is what view. I just raise that point as an aside. just last month—addressed to the they do. They are wonderful people. I Based on the Attorney General’s re- Members of the Senate and the Presi- never enjoyed anything more than sponse, I conclude that the bottom line dent, said this: being a prosecutor, wearing a white hat is there is nowhere near the real evi- We believe that the MSHCPA [Matthew every day to work and trying to vindi- dence needed to justify this legislation. Shepard Hate Crimes Prevention Act] will do cate decent people from criminal acts. No one in this body has produced the little good and a great deal of harm. Its most But that is just a tendency of the pros- important effect will be to allow Federal au- evidence, and the Attorney General of ecutorial mindset that we ought not to the United States, who is promoting thorities to reprosecute a broad category of defendants who have already been acquitted forget. the bill, has not produced any. Attor- The truth is, during the recent hate ney General Holder’s response, instead by State juries, as in the Rodney King and Crown Heights cases more than a decade ago. crimes hearing, no one who testified in of demonstrating the need for hate Due to the exception for prosecution by favor of the bill could point to a single crimes legislation as written, provides ‘‘dual sovereigns,’’ [that is the two sovereign incident where, I think, a valid hate verification that it is not necessary, entities] such double prosecutions tech- crime was not pursued or prosecuted by and it raises a question of whether this nically are not violations of the double jeop- State and local law enforcement offi- is driven by political interests at this ardy clause of the U.S. Constitution. But cers. time. It is easy to complain that any- they are very much a violation of the spirit that drove the Framers of the Bill of Rights, In the latest statistics that are avail- body who opposes a hate crimes bill fa- able, of the 2006 hate crimes reported in vors hate. That is not a fair charge. I who never dreamed that Federal criminal ju- risdiction would be expanded to the point 2007, only nine were classified as mur- think most of our colleagues fully un- where an astonishing portion of crimes are der or nonnegligent manslaughter. derstand that. But politically that is now both State and Federal offenses. We re- That is certainly nine too many. I the suggestion some have made when gard the broad federalization of crime as a think every one should be prosecuted. this legislation has been objected to by menace to civil liberties. There is no better But no complaints have been raised people with very valid concerns. place to draw the line on that process than that any of these were not vigorously with a bill that purports to protect civil As a matter of fact, one of the stud- or fairly prosecuted. Indeed, two-thirds ies heavily relied on by the Attorney rights. They go on to say: of the offenses involved property de- General in support of this bill is a 2008 facement, such as graffiti and name- While the title of MSHCPA suggests that it report published by the National Coali- calling. Missing from the analysis is tion of Anti-Violence Programs, which will apply only to ‘‘hate crimes,’’ the actual criminal prohibitions contained in it do not any evidence that the crimes are not is composed primarily of lesbian, gay, being prosecuted at the State and local bisexual, and transgender groups. They require that the defendant be inspired by ha- tred or ill will in order to convict. It is suffi- level. Indeed, 45 of the 50 States and have every right to do those studies cient if he acts ‘‘because of’’ someone’s ac- the District of Columbia already have and present them, but it is a coalition tual or perceived race, color, religion, na- and enforce hate crimes laws. Although clearly with a vested interest in the tional origin, gender, sexual orientation, the language is broad and some could legislation, and it should be examined gender identity or disability. criticize it, these States have passed carefully. The Attorney General had to I am quoting from the Civil Rights these bills, and they are able to enforce rely on these types of reports because Commission letter. them. crime statistics do not support the no- Rapists are seldom indifferent to the gen- Statistics show that these hate tion that the incidence of hate crimes der of their victims. They are virtually al- crimes, even with better reporting, has increased. Even though we are ways chosen ‘‘because of’’ their gender. A have decreased slightly over the years. doing a better job of reporting those robber might well steal only from women or the disabled because, in general, they are Forty-four States have stiffer penalties today, still over the past 10 years the for violence related to race, religion, or number is down, down slightly, even less able to defend themselves. Literally they [these victims] are chosen because of ethnicity, and 31 States have tougher though population is up in our country. their gender or disability. penalties on violence related to sexual Furthermore, in a rushed attempt to orientation. provide answers to the committee prior The letter goes on to state their be- The question arises, do we have a to this amendment being filed, the De- lief that every rape in America would basis for this massive and historic partment seemed to put little thought now be declared a crime under this bill change in Federal enforcement of what into their responses to our questions. because it is an action taken against have been State crimes? As a matter of fact, it appears the At- someone because of their gender. Professor Gail Heriot, a member of Perhaps Mr. Andrew Sullivan—an torney General didn’t think the issue the U.S. Commission on Civil Rights, openly gay man who has pioneered the important enough to answer them him- testified at our June 25 hearing. She effort to have gays in the military and self. He let his staff people answer, made clear that all rapes would be cov- is a well known and an able writer, pro- when he was the one who appeared be- ered under the bill and that, indeed, vides the answer. Mr. SULLIVAN had fore the committee and we were fol- this was intentional. She said: this to say about the legislation. lowing up on his personal testimony. A number of arguments and state- This wasn’t just sloppy draftsmanship. The The real reason for hate crime laws is not ments have been made, including those language was chosen deliberately. Officials the defense of human beings from crimes. understandably wanted something suscep- There are already laws against that—and by the Attorney General, that there tible to broad construction, in part because Matthew Shepard’s murderers were success- are quite a few of these incidents, tens it makes prosecutions easier. As a staff fully prosecuted to the fullest extent of the of thousands of these incidents over member of the Senate Judiciary Committee law in a State that had no hate crime law at the last number of years. But over- back in 1998, I had conversations with the the time.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.014 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7676 CONGRESSIONAL RECORD — SENATE July 20, 2009 The real reason for the invention of hate ertarian civil rights attorney. He says being effectively prosecuted. So the crimes was a hard left critique of conven- this: sponsors have also tried to ease con- tional liberal justice and the emergence of When it comes before the Supreme Court, I stitutional concerns by citing the 13th, special interest groups which need boutique hope the Justices will look up at the carving legislation to raise funds for their large 14th and 15th amendments. staffs and luxurious buildings. Just imagine as they go into the building. They should The 13th amendment provides Con- how many direct mail pieces have gone out also remember that the Fifth Amendment gress with the limited authority to explaining that without more money, more makes clear: ‘‘nor shall any person be sub- abolish ‘‘all badges and incidents of gay human beings will be crucified on fences. ject for the same offence to be twice put in slavery in the United States.’’ I hope jeopardy.’’ It is very, very powerful as a money-making my colleagues are not seriously at- tool, which may explain why the largely But the House hate crime bill allows de- fendants found innocent of that offense in a tempting to argue that assaulting symbolic Federal bill still has not passed (if someone because of their religious it passes, however, I’ll keep a close eye on state court to be tried again in federal court whether it is ever used.) because of insufficiently diligent prosecu- views or gender is tantamount to slav- tors; or, as Attorney General Holder says, This is a gay man expressing his ery. when state prosecutors claim lack of evi- The 14th and 15th amendments apply opinion. No doubt he takes these issues dence. It must be tried again in federal only to State actions, and since we very seriously, and symbolism is im- court. Imagine Holder as the state pros- have already established that States portant in our political world, but we ecutor in the long early stages of a Duke are vigorously prosecuting these ac- need to be careful that statutes that University lacrosse rape case. become a permanent part of our crimi- What also appalls me, as the new federal tions and not ignoring them, I do not nal code are supported by evidence and bill races toward a presidential signature, is think this is a valid approach. Finally, I would note that the legis- principle. that for many years, and now, the American I do not think our focus here is to Civil Liberties Union approves ‘‘hate lation raises questions concerning the crimes’’ prosecutions. I have long depended constitutional imperative that there be deal with symbolic legislation that is on the ACLU’s staff of constitutional war- broad and can expand Federal criminal ‘‘equal justice under law.’’ Is there a le- riors to act persistently against government gitimate, justifiable reason to punish jurisdiction beyond its historic role abuses of our founding documents. And these and where the facts do not support the attorneys and analysts have been especially one rape differently than another rape need. In other words, more narrowly valuable in opposing the results of executive simply because someone decides the tailored legislation consistent with a branch lunges against the separation of pow- first rape was committed out of hate or constitutional right could very well be ers in the Bush-Cheney years, and still under actually because of the gender of the something this Congress would want to Obama. victim? I think the victims would say pass. To pass legislation so extremely Then he says this: the same thing, the criminal should be broad again could give Federal juris- Is there no non-politically correct ACLU punished to the fullest extent of the diction for the first time in history to lawyer or other staff worker or anyone in the law. every rape that occurs in America. It ACLU affiliates around the country or any This legislation would add a different ought to be looked at with great care dues-paying member outraged enough to de- element to certain crimes, and I know, and ought not to be stuck onto a de- mand of the ACLU’s ruling circle to at last as a former prosecutor, make it more disavow this corruption of the Constitution? fense bill and moved forward, in my difficult and more expensive to obtain opinion. That is Mr. Hentoff’s view of it. a conviction, especially when you have The Constitution endows Congress So this hate crimes amendment is a to prove an individual’s thought proc- with limited and enumerated powers. substantial overreach by Congress, I do ess as an underlying element to the of- There is no general police power in the believe. It is not carefully crafted or fense. Federal Government. So at this point, narrowly tailored. Unlike the historic This bill at bottom tries to distin- I wish to raise issues with the constitu- civil rights statute, it seeks to fed- guish between assaults by declaring if tionality of the hate crimes provision. eralize the violent, noneconomic con- someone assaults and kills his Congress’s power is limited to what it can duct that is local in nature and has lit- girlfriend because she broke up with regulate under the Commerce Clause. The tle or no Federal nexus. him it is not a Federal offense, but if proposed legislation is based upon the idea The Supreme Court has held that vio- he kills her because she claims she that a discrete crime in a local community lent conduct that does not target eco- wanted to explore her sexual orienta- may have an impact on interstate com- nomic activity is among the types of tion and he became upset and killed merce. This is the same theory that was re- crimes that have the least connection her, that would be a Federal offense. jected in both U.S. vs. Lopez and U.S. vs. to Congress’s commerce power. How- Morrison, where the Supreme Court essen- Senator HATCH offered a complete tially ruled that intrastate violent conduct ever, this is precisely the sort of vio- substitute on Thursday night. It was does not impact commerce normally. lent, noneconomic conduct that this rejected. His proposal would require Nat Hentoff, a well-respected noted amendment would federalize. that a study be conducted so actual civil rights and civil libertarian attor- If this approach were permissible, it evidence can be obtained to see if there ney and writer recently wrote about would put Congress on a path to rely is a real serious problem with States some constitutional concerns he has on the Commerce Clause and legislate not prosecuting these matters. with the legislation. This is what he any criminal law it wants. When it For some reason, even though Sen- said: comes to criminal law, Congress would ator HATCH has been trying to get it In the definitive constitutional analysis of no longer be a body of limited and enu- passed for quite a number of years, the James B. Jacobs and researcher Kimberly merated powers but would have ple- study has never been conducted, and Potter, it is documented in ‘‘Hate Crimes: nary power to criminalize any and all all proposals for such a study have Criminal Law and Identity Politics’’ that in conduct that is already criminalized by been rejected. I fear it is because per- ‘‘Grimm v. Churchill the arresting officer the States, a clear violation of our his- haps Mr. SULLIVAN got it right. It is was permitted to testify that the defendant torical policy of not taking over State not so much about the failure of States had a history of making racial remarks. and local law enforcement. to prosecute these crimes but about an Similarly, in People v. Lampkin, the pros- ecution presented as evidence racist state- There are still a lot of complaints underlying idea to pass a symbolic ments the defendant had uttered six years over the drug laws aggressively pros- piece of legislation. before the crime for which he was on trial,’’ ecuted when I was a Federal pros- There is no good reason to pass such as specifically relating to the offense. ecutor, and many think that was an a broad piece of legislation. To pass it As for the 14th Amendment’s essential re- overreach. When drugs come in, the would be unwise. No one believes that quirement that no person be denied ‘‘the vast majority from outside the coun- individuals should be assaulted because equal protection of the laws,’’ there is carved try, they move as interstate commerce, above the entrance to the Supreme Court the of their beliefs, their gender or their words ‘‘Equal Justice Under Law.’’ and the courts have held that up. sexual orientation. That type of behav- This legislation, certain to be passed by But there is still intellectual criti- ior is unacceptable and should be pros- the Senate, now it seems will come to the cism and concern about it. But in this ecuted. Supreme Court. case, you do not have the kind of dra- It has been prosecuted. I am sure And I am quoting Mr. Nat Hentoff, matic nexus, and you also lack the evi- State and local law enforcement offi- the well-known and respected civil lib- dence to suggest those cases are not cers will continue to do so. I believe

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.015 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7677 that if my colleagues would study the person and can say that the American The PRESIDING OFFICER. The legislation and think about what they people say what I witnessed firsthand, clerk will call the roll. are doing, they would see that this is an individual with extensive judicial The legislative clerk proceeded to more unwise and the objections they experience, a clear understanding of call the roll. have heard have far more weight than the law, and the judicial temperament Mr. KYL. I ask unanimous consent they had thought initially. to be an excellent Supreme Court Jus- that the order for the quorum call be It seems like a good idea. Who would tice. Judge Sotomayor’s nomination is rescinded. want to be against a crime that says it a historic moment for several reasons. The PRESIDING OFFICER (Mr. WAR- wants to punish hate? But there are se- With 17 years as a Federal district and NER). Without objection, it is so or- rious matters and constitutional appellate court judge, Judge dered. issues, as I noted from the Civil Rights Sotomayor has more judicial experi- SIX MONTHS IN OFFICE Commission, from the civil rights at- ence than anyone confirmed for the Mr. KYL. Mr. President, today marks torneys such as Mr. Nat Hentoff. Court in the past 100 years. She is also President Obama’s sixth month in of- I think, in truth, the Attorney Gen- part of a small group of judges who fice. The President began his term with eral should have been more balanced in have been nominated to the Federal ju- an enormous amount of goodwill, high his testimony before the Judiciary diciary by Presidents of different par- approval ratings and pledges to work in Committee. He came pushing this leg- ties: President George H.W. Bush and a bipartisan way. In the earliest days islation without listening or expressing President Bill Clinton. With the addi- he reached out in a bipartisan way to any concern. But I do think he should tion of President Obama, she will be- secure passage of administration prior- have pointed out that it represents one come the first person nominated by ities and Republicans reciprocated. For of the largest expansions of Federal three Presidents to serve on the Fed- example, I joined the President in sup- law enforcement in history. He should eral judiciary. porting the release of the second be the first to point out and express Judge Sotomayor is also the first tranche of financial stabilization that concern. He should not allow poli- Hispanic American nominated to serve money. But the administration has be- tics to drive law in America. on the Supreme Court in its 220-year come increasingly partisan in the I know most of my colleagues think history. months since then. The effectiveness of this is the right thing to do. I wish I Her family immigrated to the United the President’s policies is increasingly had been able to participate more in States from Puerto Rico. The family questioned by the American people as the debate before it was a done deal the didn’t have a lot of money, but her spending and deficits have sky- other night. I was involved at the same mother valued education and hard rocketed. Unemployment has gotten time, of course, with the confirmation work. Judge Sotomayor would go on to much worse since he took office, and process. Princeton and Yale Law School, where America’s interests abroad have been Hopefully, we can watch this legisla- she excelled academically. Judge challenged with little response. tion come with some ideas that curtail Sotomayor did not have the benefit of Let me first speak to the issue of do- its potential for abuse and make it bet- a family name or wealth but she had mestic policy, spending and debt. On ter. But, in reality, I want my col- ambition. She proved that one can im- domestic policy, President Obama’s leagues to know it is time for us in prove their life in a single generation. first 6 months in office have been char- Congress to step back and question I am confident many young men and acterized by unprecedented spending carefully any proposal to create new or women of all backgrounds are inspired and debt accumulation. In 6 months, further expand federal criminal juris- by her example. Perhaps they will hit President Obama has put the country diction that would encroach upon the the books a little harder, practice their on a course to spend more and accrue historic powers of our State and local craft a little more, and not give up on more debt than any President in his- law enforcement to enforce the law in reaching their own individual dreams. tory; in fact, to take on more debt than their jurisdiction. As Governor of Virginia and now U.S. all of the other Presidents in the his- I yield the floor. tory of the United States combined. The PRESIDING OFFICER. The Sen- Senator, I have carried out the respon- The President has at the same time ex- ator from Michigan. sibility of selecting, vetting, and nomi- ercised the power of government in un- Mr. LEVIN. I ask unanimous consent nating individuals to serve on the precedented ways. The President that the Senator from Virginia be rec- bench. It is an enormous responsibility, knows this is greatly concerning to the ognized next as in morning business for because the decisions judges make af- American people. So on June 16, Presi- up to 10 minutes. fect people’s lives. Much has been said The PRESIDING OFFICER. Without about Judge Sotomayor’s judicial phi- dent Obama told an interviewer: objection, it is so ordered. losophy. In testimony before the Sen- I actually would like to see a relatively (Mr. LEVIN assumed the Chair.) ate Judiciary Committee, she made light touch when it comes to government. The PRESIDING OFFICER. The Sen- clear to me that she fully understands But when it comes to the size and ator from Virginia is recognized. the role of a judge. In her own words, scope of the government, nothing SOTOMAYOR NOMINATION her judicial philosophy is simple: ‘‘Fi- President Obama has done in his first 6 Mr. WARNER. Mr. President, I rise delity to the law’’ and a ‘‘rigorous com- months resembles a light touch. Time to speak in support of the nomination mitment to interpreting the Constitu- after time, he has pushed government of Judge Sonia Sotomayor to serve on tion according to its terms.’’ intervention and takeovers and huge the Supreme Court of the United Independent institutions can attest spending increases as the preferred so- States. to this. The American Bar Association lutions to various problems, whether it First, I would like to applaud Chair- unanimously found Judge Sotomayor is to stimulate the economy, reform man LEAHY and Ranking Member SES- to be highly qualified, its highest rat- health care, or bail out bankrupt car SIONS for conducting a successful con- ing. A number of other nonpartisan companies. firmation hearing. The hearings lasted groups have found her constitutional The President cites the economic 4 days, 15 witnesses testified, and thou- decisions to be solidly in the main- downturn as a reason to clear the way sands of people attended the hearing in stream. Judge Sotomayor’s commit- for more and more new spending, but person. ment to public service, extensive judi- we still don’t have any evidence that The topics of discussion ranged from cial experience, and fidelity to the law this record-breaking spending has actu- executive privilege to property rights. make her an excellent candidate to ally helped the economy. Take the $1.2 In the end, the reviews were that the serve on the Supreme Court of the trillion so-called stimulus bill. In hearing was constructive and fair. At United States. I look forward to cast- pitching the stimulus to the Nation, the same time, millions of Americans ing my vote in support of Judge the President pledged that ‘‘a new all across the country tuned in to the Sotomayor and encourage my col- wave of innovation, activity, and con- confirmation hearings on television to leagues on both sides of the aisle to do struction would be unleashed all across find out who Justice Sotomayor is. the same. America.’’ The administration also As a U.S. Senator, I had the privilege I yield the floor and suggest the ab- said it would help keep unemployment of meeting with Judge Sotomayor in sence of a quorum. from topping 8 percent and ‘‘save or

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.016 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7678 CONGRESSIONAL RECORD — SENATE July 20, 2009 create 3.5 million new jobs.’’ He in- 1945, when the country was still fight- care to pay for a new government- sisted Congress rush the bill through ing World War II. It is also a greater dominated system for nonseniors, espe- despite concerns about the cost and the share of the economy than during the cially since Medicare is already in fi- Government’s ability to disburse funds Vietnam war or during the recessions nancial trouble? This would ultimately in a timely way. of 1974–1975 or 1981–1982. lead to shortages, rationing, and the As we now know, since President The debt created by his budget will elimination of private plan choices— Obama signed the legislation, far from be greater than the combined debt cre- something our seniors rightly fear. stopping unemployment from exceed- ated by the budgets of each of the pre- It does not make much sense to strip ing 8 percent, unemployment has now vious 43 Presidents, all the way back to funds from those already participating reached over 9.5 percent and is headed President Washington. By the end of in government health care and to then to at least 10 percent. The economy has this fiscal year, our publicly held debt use the savings for the creation of a lost over 2 million jobs, including will amount to roughly 57 percent of massive new government health care 433,000 last month. According to the the gross domestic product and deficits system that few people want. Ameri- White House Web site, which tracks of $1 trillion every year are predicted cans rightly worry the President’s pro- stimulus spending, only 7.68 percent of for the next decade. This will drive the posals will lead to the kind of denial the stimulus money has been funneled debt to 82 percent of the gross domestic and delay that happens in Canada and into the economy. product by the year 2019. Interest pay- Great Britain. In an article for the Washington ments on this debt will soon make up The President has even said: Post, Michael Gerson explains why the the single largest item in the debt. In What I think the government can do is be stimulus is having such a negligible ef- fact, as for the interest cost, beginning an honest broker in assessing and evaluating treatments. fect: in 2012 and every year thereafter, the Pouring money into the economy through government will spend more than $1 That can only mean one thing: denial a thirst sponge of federal programs . . . is billion a day on finance charges to and delay of care. In that kind of sys- slow and inefficient. holders of U.S. debt. That means Fed- tem, Federal boards would dictate Just as Senate Republicans argued eral spending on finance charges for what is best for you and me, if our when we opposed this plan. the government’s debt will be a whop- health care is worth the money, and The nonpartisan Congressional Budg- ping $5,700 per household in 2019. drive a wedge between doctors and pa- et Office projects less than a quarter of Americans are weary of this kind of tients. President Obama said recently: the funds earmarked for this bill will debt, to say the least, and many don’t be spent by the end of this year, with think it is fair for Washington to over- When you hear the naysayers claim that I am trying to bring about government-run the lion’s share being distributed over spend and then simply pass the bill on healthcare . . . know this, they are not tell- the next 3 years, by which time, hope- to our children and grandchildren. ing the truth. fully, the recession will be over. If that These levels of spending and debt Well, maybe the President does not is the case, the administration will no would be reckless in the best of eco- like the term ‘‘government-run health longer have a justification for this nomic times, and they are not con- care’’ because it is not popular with stimulus spending. But taxpayers will sistent with President Obama’s pledge Americans. But a plan administered by still be on the hook for the hundreds of for a new era of fiscal responsibility. the government, with prices and poli- billions of dollars the government will Let’s turn to health care. cies and treatments evaluated and dic- have to borrow to pay for it. The American people—and those of tated by Washington bureaucrats, is Thanks to a new report by Senator us in Congress—want health care re- government-run health care, plain and COBURN, we know more about some of form. That is not in question. But simple. these wasteful projects that have been President Obama is proposing a tril- On another issue, cap and trade: One funded by the so-called stimulus or are lion-dollar health care program that of the President’s oft-repeated cam- awaiting funds, including a $23.5 mil- would, according to the Congressional paign pledges was he would not raise lion turtle tunnel in Florida, a $550,000 Budget Office, cause millions of Ameri- taxes on middle-income Americans. skateboard park in Rhode Island, and cans to lose their current care by pro- But the cap-and-trade legislation he even $40,000 to give someone a job in viding an incentive to employers to and congressional Democrats are back- North Carolina to lobby for more stim- drop their health care coverage. ing would do just that. ulus funds. That is just a handful of the How is this consistent with the Presi- On June 26, the House of Representa- projects approved so far. dent’s assurances that if Americans tives passed cap-and-trade legislation So what has happened to the Presi- like their current insurance, they can described by Harvard University econo- dent’s plan to spend wisely? That keep it? Remember, 85 percent of mist Martin Feldstein as ‘‘a stealth brings us to the budget. The Presi- Americans have insurance and the vast strategy for a massive long-term tax dent’s $3.4 trillion 10-year budget also majority of them like their coverage increase.’’ defies the idea of a light touch. In an and they do not want to lose it. The bill would implement a cap-and- editorial about the budget, the Wall President Obama frames this huge trade program with the goal of reduc- Street Journal wrote: new entitlement as a cost-saving, def- ing carbon dioxide emissions into the With [his] fiscal 2010 budget proposal, icit-reducing measure. At a July 1 atmosphere. Cap-and-trade programs President Obama is attempting not merely townhall meeting in Virginia, the set strict mandatory limits on carbon to expand the role of the federal government, President told participants: emissions from various sources, such as but to put it in such a dominant position If we want to control our deficits, the only electric utilities. Those sources would that its power can never be rolled back. way for us to do it is to control healthcare then either reduce carbon emissions or So the spending is the means to an costs. buy or trade emission allowances to end, a bigger government that can But does anyone believe that cre- achieve the required overall emissions never be tamed. To understand the ating a new trillion-dollar, Wash- reductions. magnitude of the budget the President ington-run health care bureaucracy The energy bill would not directly proposed, consider: Federal spending will reduce costs? When in history has raise taxes on Americans; that is, they will skyrocket to 27.7 percent of the a new government program ever re- will not necessarily see a larger income gross domestic product in 2009. That is duced costs? Our two current govern- tax bill at tax time in April. Rather, up from 21 percent of GDP in 2008. Ac- ment-run health care programs—Medi- cap and trade increases the cost of liv- cording to the CBO’s monthly budget care and Medicaid—are both on finan- ing for everyone by raising energy review, for the first 9 months of the cially unsustainable paths. Medicare costs and consumer prices for virtually 2009 fiscal year, outlays are 21 percent alone has a $38 trillion unfunded liabil- everything. The effect would be the higher than they were in the first three ity over the next 75 years and is in ur- same as if the IRS sent them a tax bill. quarters of 2008, though revenues have gent need of reform. When the nonpartisan Congressional fallen by 18 percent. Federal spending Some of the projected revenue for the Budget Office analyzed the cost of a re- will make up a greater share of the President’s plan comes from cuts in duction of carbon emissions by 15 per- economy in 2009 than in any year since Medicare. How is it fair to cut seniors’ cent below 2005 levels, it estimated a

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.017 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7679 family’s cost of living would increase When prodemocracy demonstrations son Kim Jong Un, the regime’s behav- by $1,600. were being suppressed in Tehran, the ior has become increasingly belligerent To put that $1,600 carbon tax in perspec- President offered barely a word of sup- and unpredictable. tive— port for the people putting their lives North Korea has pulled out of the Martin Feldstein wrote— on the line for their freedom. six-party negotiations, restarted its a typical family of four with earnings of Iranian people were met with vio- nuclear program, test launched several $50,000 now pays an income tax of about lence after they took to the streets to ballistic missiles, and conducted a sus- $3,000. The tax imposed by the cap-and-trade peacefully protest the validity of Iran’s pected underground nuclear test. The system is, therefore, equivalent to raising Presidential election in June to declare regime even declared that it has now the family’s income tax by about 50 percent their support for free elections and op- abandoned the armistice that brought That is $1,600 that families will not pose Iran’s oppressive police state. a cease-fire to the Korean war. be able to spend or save for the future. The President likes to say: Words What has the Obama administration In addition to the tax increase, cap matter. Very true. But his initial done in response to this threat to the and trade would retard economic statement referring to ‘‘deep concerns security of other nations in the region growth. The Heritage Foundation ana- about the election’’ failed to condemn and indeed to the very security of the lyzed the proposal and concluded it the Iranian theocracy and lacked United States? The answer is dis- would slow long-term growth by al- moral fortitude. And even as pressure appointing. It has cut missile defense. most $10 trillion over the next 26 years. rose on the President to take a strong- The President’s budget cut the Mis- Jobs would be lost. The Heritage Foun- er stand, he declined to provide the sile Defense Agency’s budget for fiscal dation’s analysis, in fact, found that leadership the world expects from year 2010 by $1.2 billion and decreased my State of Arizona would lose thou- America, the standard bearer for free- the planned number of Ground-Based sands of jobs. dom and democracy. Interceptor missiles in Alaska from 44 Proponents of the cap-and-trade pro- As the Weekly Standard recently edi- to 30. These proposals amount to al- posal argue that job losses will be off- torialized: most a 15-percent cut in the Missile De- set by the creation of new green jobs. fense Agency’s budget and a major re- But it is not at all certain those jobs Since June 12, [President Obama has] done nothing to help those Iranians who have duction in our missile defense port- will materialize, let alone make up for been seeking, in the words of Thomas Jeffer- folio—at the very moment we should be the jobs that are lost. In Spain, where son, ‘‘ . . . to assume the blessings and secu- increasing our capability to defend our- government has invested heavily in rity of self-government.’’ selves and our allies from the North green jobs, two jobs are lost for every Explaining his reticence, the Presi- Korean threat. green job created, according to Spanish dent said: Finally, a word about the prison at economist Gabriel Calzada. Especially at a time when the econ- It’s not productive, given the history of Guantanamo Bay. I think this is im- U.S.-Iranian relations to be seen as med- omy is shaky and unemployment has portant in evaluating the first 6 dling—the U.S. president meddling in Ira- months of this administration because reached a 25-year high, I am dis- nian elections. appointed the President is promoting one of the very first acts of the Presi- The United States should be lending this legislation that not only would dent, after he was inaugurated 6 full-throated voice to the democratic violate his campaign promise but months ago, was his self-imposed dead- aspirations of the Iranian people, while would cost taxpayers billions of dollars line to close the facility at Guanta- seeking to impose sanctions on their and harm jobs. namo within 1 year. Let me now address some issues that oppressors. It is not meddling for the A majority of Americans strongly op- are not directly domestic: free trade world’s oldest and greatest democracy pose the closure of Guantanamo. Con- issues and problems with Iran and to stand with them. gress has refused to support President North Korea. The administration’s Iranian policy Obama’s arbitrary deadline to close the First, on free trade: I am very dis- was flawed from the beginning. It came facility without a plan, for example, appointed that the administration has into office with the idea that it could showing where he will relocate the ter- not made free trade a top priority. It negotiate a ‘‘grand bargain’’ with the rorists. The administration has con- has failed in its first 6 months to take mullahs on Iran’s nuclear program and vinced Palau and Bermuda to take a any action on bilateral trade pacts would meet with its rogue leader with- few detainees, but this is not much of with Colombia, Panama, and South out preconditions. With the mullah’s a solution if the President is deter- Korea—all of which were signed under repression of dissent following Iran’s mined to close the facility in just an- President Bush. These trade deals flawed elections, that has all gone by other 6 months. Where will the rest of would provide a boost to the U.S. econ- the boards. Of course, it was always the detainees still housed at Guanta- omy and would also strengthen U.S. destined to fail. namo Bay go? We still do not know. partnerships in two important regions. Was it ever realistic to believe this is Ultimately, the debate over Guanta- Not only has the administration failed a government with which we can suc- namo has become a debate over geog- to move swiftly on these trade agree- cessfully negotiate—a government that raphy. Both the new Attorney General ments, it has also supported a number sponsors terrorism and murders peace- and the new Solicitor General have en- of damaging protectionist measures, ful student protesters and does not dorsed the government’s right to de- such as a ‘‘Buy American’’ provision in even have the mandate of its own peo- tain suspected terrorists indefinitely. the stimulus package. ple? What do we think we can give this Whether we can detain them at Guan- These policies have angered U.S. government more than it wants a nu- tanamo or at prisons on U.S. soil does trading partners and hurt America’s clear weapon? not change the fundamental reality credibility as a promoter of free trade What is more, what message do we that this administration, similar to its liberalization. They have already trig- send to the Iranian people, many of predecessor, will be holding certain in- gered retaliation. For example, after whom have been arrested, tortured, dividuals without trial. the administration canceled a trucking and had family members killed, by ne- We have been told that Guantanamo program with Mexico—a program op- gotiating with this regime while it robs must be closed for symbolic reasons. posed by the Teamsters Union—the its own people of their fundamental But America should never make na- Mexican Government responded by rights? I do not believe the United tional security decisions based on sym- slapping tariffs on a range of American States can deal in good faith with a re- bolisms—or on false moral arguments. imports, including wheat, beans, beef, gime that so violently suppresses its In conclusion, on the campaign trail and rice. A global recession is no time own citizens. I hope the President will and after his election, President Obama in which to start a trade fight. come to agree. repeatedly promised ‘‘change we can With Iran: There are few regions of With regard to North Korea, the ad- believe in’’ and the end of partisan pol- the world as volatile as the Middle ministration’s reaction to North Ko- itics in Washington. He pledged to East. Yet the administration’s ap- rea’s recent activity is also of concern. bring Republicans and Democrats to- proach to Iran has been regrettable, to As Pyongyang prepares for the transi- gether. say the least. tion of power from Kim Jong Il to his On election night, he said:

VerDate Nov 24 2008 03:21 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.018 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7680 CONGRESSIONAL RECORD — SENATE July 20, 2009 Let us resist the temptation to fall back These are not politicians, these are question about whether he goes back on . . . partisanship. people who represent both sides of the there. But the fact is, we have no rea- But partisan politics looms larger political aisle—Democrat and Repub- son to believe we can convict or pros- than ever. Congress is urged to rush lican—who have concluded that keep- ecute this man for anything. He is costly legislation through, despite fre- ing Guantanamo open, unfortunately, being held. It will be his seventh year quent Republican concerns about the is going to continue to give encourage- now. He came in at age 19. He may pricetag and the efficacy of the legisla- ment to the recruitment of terrorists leave at age 26 or 27. His life is dra- tion. Indeed, the President’s budget around the world. matically changed because, unfortu- and stimulus both passed mainly on President Obama announced that we nately, our early inclination that he party lines. should start to close Guantanamo, we was a danger to this country turned As Michael Barone recently wrote, should start deciding the fate of each out not to be a basis for a crime that the President: of these prisoners, and it is high time could be prosecuted. That is the re- Brings [to Washington] the assumption we do. ality. that there will always be a bounteous pri- Under President George W. Bush, The President has addressed this vate sector that can be plundered on behalf hundreds of Guantanamo Bay detainees issue. Just a few weeks ago he an- of political favorites. Hence, the takeover of were released. They were arrested, in- nounced one of these detainees in Chrysler and GM to bail out the United Auto Guantanamo Bay was finally going to Workers union. carcerated, questioned, and released, no charges against them. It was accept- face justice, and despite the protests of Six months later, President Obama ed. We made mistakes on the battle- some on the other side of the aisle, he continues to take unnecessary jabs at field. People came up collecting boun- moved that prisoner to New York for a his predecessor. On his promise for ties for turning in prisoners who turned trial. It wasn’t the first time the city change, more government debt, govern- out not to be dangerous. These people of New York has had the trial of a ter- ment bailouts, and large transfers of were released. The overwhelming ma- rorist. It has happened before. They the economy from the private to the jority of these people didn’t cause any know how to hold these terrorists in public sector are not what Americans trouble beyond that. Some did. That is jail during the course of the trial. We are looking for. a fact. I will not ignore it. don’t hear panic in the streets in New Americans want the President and York over it. The only panic and fear Congress to support the private sector Now comes the Republican side of the aisle arguing that it is unsafe for us to we hear comes from the other side of to help the economy get back on track, the aisle in the Senate. without tidal waves of spending, debt, transfer Guantanamo prisoners from Guantanamo to Federal prisons in the The President is doing the right and new taxes. They want real health thing closing Guantanamo Bay and care reform without a government United States. I have heard the argu- ments. They say it is unsafe in my saying to the world: We will not engage takeover, and they want the President in torture. We will close Guantanamo community of Springfield, IL, to have to lead us in this dangerous world, ac- Bay. This is a new chapter and a new a convicted terrorist; that it is a threat knowledging the harsh reality that not day for America. With this approach, to all the people, the 12.5 million peo- every rogue regime will respond to we are closing down a recruiting tool ple who live in Illinois, and they be- smooth talk. for terrorists and opening the door for lieve that is the case around the coun- In the next 6 months, and beyond, I allies to come back to the side of the try. But if we look at the facts, that ar- hope the President will take a more United States to join us in stopping the gument doesn’t stand up. sensible and, indeed, more bipartisan kind of extremism that led to the trag- Today, in the prisons of the United course so we can all accomplish what edy of 9/11. the American people seek. States, the Federal prisons, we have 355 So I disagree with my colleague from The PRESIDING OFFICER. The Sen- convicted terrorists currently incarcer- Arizona who has argued that we ator from Illinois. ated, being held safely and securely. shouldn’t close Guantanamo Bay. I Mr. DURBIN. Mr. President, I ask They are no threat to our safety. In my agree with GEN Colin L. Powell and unanimous consent to speak as in hometown of Springfield, not far away, other military leaders that closing it is morning business and that Senator just in southern Illinois, maybe a little in the best interests of the security of KAUFMAN of Delaware be recognized over 100 miles, is Marion Federal Peni- the United States. after I have concluded. tentiary. I visited there several weeks Senator KYL initiated his remarks by The PRESIDING OFFICER. Without ago and talked to the men and women noting that we have reached the 6- objection, it is so ordered. who are the guards and those running month anniversary of the inauguration Mr. DURBIN. Thank you very much. the prison, and they said to me: Sen- of President Obama. It is hard to imag- Mr. President, I thank the minority ator DURBIN, send them here. We have ine. It seems to have just been flying whip for his statement on the floor. I dealt with terrorists. We have terror- by if you are on the floor of the Senate would like to suggest I see things a lit- ists now on our cell block. We have had with all of the activity and all of the tle differently and suggest there are a crime syndicates. We have had people business we have considered. But he couple items I would like to speak to. from the Colombian drug cartels. We made special notice of the stimulus First, on Guantanamo: can handle them. bill. President Obama took office and re- The mayor of Marion, IL, went out I wish to remind people what the alized we had a serious problem in and said to the people: Are you fright- President inherited when he took his Guantanamo Bay. It is a safe and se- ened if these detainees come to Mar- oath of office 6 months ago. Our econ- cure facility, but it has become a re- ion? omy was losing on average 700,000 jobs cruiting tool for terrorists around the They said: No. a month when President Obama took world. That is not just his conclusion; These guards know how to do their his oath of office. The growth rate was it is the conclusion of people I respect job. This is a Federal penitentiary that at a negative 6.3 percent, the worst very much. Among those who called for is safe. So the fear that is being es- since the 1982 recession. Home fore- the closing of Guantanamo include the poused and bred by the other side of closures, mortgage foreclosures were at following: GEN Colin L. Powell, former the aisle about Guantanamo Bay is not record levels, and residential invest- Chairman of the Joint Chiefs of Staff well placed. What the President is ment had fallen by more than 40 per- and Secretary of State under President doing systematically and carefully is cent in just 18 months. Banks were in George W. Bush; Republican Senators evaluating each of these prisoners. crisis, freezing lending, and nearly $10 JOHN MCCAIN and LINDSEY GRAHAM; I know of one who received notice trillion in wealth had been lost in the former Secretaries of State James from our government last year, after stock market. Virtually all of us who Baker, Henry Kissinger, and having been held for 6 years as a pris- had 401(k)s or savings involved in the Condoleezza Rice; Defense Secretary oner, that we had no case against him. stock market know exactly what hap- Robert Gates, who served President No charges were going to be pursued. pened to those savings. We lost a lot of Bush and President Obama; ADM Mike He is still a prisoner. We are looking value. Mullen, Chairman of the Joint Chiefs for a place to put him. He is from the As President Obama took office, this of Staff; and GEN David Petraeus. Gaza, a bottled up area. There is a is what he inherited. He came to the

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.019 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7681 Congress and said: We can’t stand idly We also gave a helping hand to unem- Secondly, we want to preserve the re- by. We have to do something. We have ployed families to keep health insur- lationship between doctor and pa- to try to energize this economy, create ance for their kids and their families. tient—the confidential relationship, and save American jobs; give busi- That was part of the stimulus package, the trust that has developed between nesses and families a fighting chance. as well as money for nutrition assist- them so that you can take a member of He asked for both sides of the aisle to ance, food stamps for some of these un- your family or yourself to a doctor and cooperate. employed families. So when the other believe it is a confidential conversation On the House side not a single Repub- side of the aisle says we shouldn’t have and that doctor is giving the best ad- lican House Member would join the done this, they are basically saying we vice possible for you. We want you to President in this effort, in this attempt shouldn’t have helped these unem- have that choice and make that deci- at a bipartisan effort to deal with the ployed families and a lot of other fami- sion. economic situation in our country. On lies across America. I think it was the What we want to stop is the mis- this side of the Rotunda, three Repub- right thing to do. treatment of Americans and American lican Senators stepped up and said they We are making investments in the in- families by health insurance compa- would work with the Democrats to try frastructure of America as well. Basi- nies. You know what I mean: If you to find a way to help put our economy cally, we are trying to make an invest- happened to have had an illness last back on its feet—only three, despite ment that will give us a recovery in year and it becomes a preexisting con- the President’s invitation for all of jobs. We were losing about 25,000 jobs a dition this year and you find out your them to join in this conversation to try day when this initially hit. Now we are health insurance won’t cover it, or if to find a compromise to work toward a trying to build back from that to cre- they are going to cover it but dramati- solution to the problems we faced. ate and save jobs across America. In cally increase your premiums, in fact, At the end of the day, the bill was a my home State of Illinois, it means in- they increase your premiums without $787 billion recovery and reinvestment frastructure projects, transportation notice or any kind of forewarning that bill to be spent over 2 years. We are infrastructure projects, and many oth- it is going to occur, these sorts of now 4 months into that 2-year period— ers. So we are just beginning. We are 150 days, roughly, into that 2-year pe- things trouble people. moving in the right direction. We have The fact that their doctors have to riod—and Senators are coming to the stopped the worst from occurring in Senate floor, as did the minority whip, get into a fight with health insurance the economy. We are going to see a clerks as to appropriate medical care and saying it has failed. turnaround, I hope, sooner rather than Well, let’s take a look and see what and whether a person should be hos- later. it has done. So far we have actually pitalized; the fact that health insur- The President’s words warrant re- spent about $56 billion out of the $787 ance companies, private health insur- peating: This is not going to happen billion, a very small amount. We have ance companies, have turned out to be overnight, and we have to be open to obligated—which means we have prom- some of the most profitable companies the idea that it is going to take some ised to spend—up to $200 billion, 4 in America, even during the recession. time for us to make the kind of recov- months into it. We are trying to ad- All of these things are fair warning ery we absolutely need. that if we don’t do something about dress this carefully so taxpayers’ funds Secondly, the Senator from Arizona are not wasted. But there are still health care in this country, the costs talked about health care reform. Re- those who voted against it initially are going to break the bank, not only publican after Republican has come to who come to the Senate floor, as the for individuals, families, and busi- the Senate floor—not all of them but previous Senator did, and say it was a nesses, but for governments at every many of them—and criticized the idea failure; we shouldn’t have done it. single level. of health care reform, but they are ig- Several things should be noted. First, Today many Americans live in fear of noring the obvious. We have a serious they had no alternative. They had no the astronomical costs that will occur problem with health care in America. substitute. They had no option for the if they or their families experience a We are spending twice as much per per- economy other than to stand idly by, health care emergency. Two and a half son as any nation on Earth for health take two Excedrin, try to take a nap, Illinoisans in my State of 12.5 million, care, and the results—the health care and hope it would be better in the more than one out of every five under results don’t show it. Many times morning. Not good enough. the age of 65, is in a family who must countries spend far less, have far better If we are going to deal with an econ- spend more than 10 percent of its in- outcomes in terms of curing diseases omy with so many jobs lost, so many come on health care costs. Among and life expectancy. businesses failing, standing idly by those, one-fourth of those are spending waiting for the economy to work its So we should ask the hard questions: Shouldn’t our money be better spent? more than 25 percent of their income way out would have been a disaster. on health care costs. This stimulus package from Presi- Shouldn’t it be more effectively spent? The other side says: Just leave well dent Obama stopped what could have Then we take a look at what we face enough alone. This isn’t ‘‘well been the collapse of the U.S. economy when it comes to health insurance pre- enough.’’ For these families, this is in- and the global economy. We still have miums, and we find out that premiums tolerable and unsustainable. It is an as- a long way to go. We are not out of this over the last several years have been tounding burden. It is 30 percent more recession, but it could have been worse. going up three times the increase in people than the number facing the 25- For those who say we shouldn’t have the average worker’s wages in this done it, let me tell my colleagues: Over country. percent payment than faced it 8 years 40 percent of the money in the stimulus We are falling further and further be- ago. package went back to tax breaks for hind as the costs of health care go be- There is also concern on the other working families in America. Ninety- yond the grasp of individual families side about cap and trade. Well, cap and five percent of working families across and small businesses. So we have to trade is a bill that has passed the America will see the benefits of the tackle this, and the American people House to address global warming, to Making Work Pay tax credit in their know we do. They understand this sys- try to assign a value to carbon in our paychecks. Those dealing with job loss, tem is, unfortunately, out of control. economy. Just last week we had the unemployed people, got an additional They have called on us to fix what is CEOs of three major companies come $25 a week. It doesn’t sound like much broken and to preserve those parts of speak to us: Duke Energy, one of the unless you have no other source of in- our system that are important. largest energy companies in America, come. One of the things we want to make DuPont, and Siemens. I take it from their statements those sure we do is to say: If you have a They favor the establishment of a on the other side of the aisle think the health insurance policy today you cost for carbon. They said: Give us a tax breaks for working families should want to keep for your family or your transition period so that we can make not have been enacted. They oppose the business, you can keep it. Nothing we our plants cleaner, our processes more unemployment compensation benefit say or do in the law will change that. energy effective, and we can meet that increases. It is ultimately your decision. goal. We have the creativity to do it.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.020 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7682 CONGRESSIONAL RECORD — SENATE July 20, 2009 So we can reduce global warming and ment in scientific and technological re- Just as we all came together in the reduce the pollution and our depend- search and development. Students race to the Moon over 40 years ago, we ence on foreign oil. In the meantime, across the country were inspired to need a renewed urgency for science and we will create new businesses; new study engineering, and I, a working en- engineering. The American people, the products; new technology that will be gineer at the time, was among those administration, Congress, agencies, energy efficient; new jobs, 21st-century inspired. and industries must unite to support jobs that will pay well, and jobs we can This extraordinary investment in re- the research and development that will keep right here in America. There are search and development helped fuel the lead us not only to new frontiers in those who oppose this and say leave it Nation’s economic growth and left an health, energy, technology, and secu- as it is. Our continued dependence on indelible mark on our society. The dis- rity, but to new jobs and, ultimately, a foreign oil should be a source of con- coveries and innovations of this time sustainable economic recovery. cern to every single person. created new opportunities, industries, I yield the floor. I am also genuinely concerned that companies, products and services, and The PRESIDING OFFICER. The Sen- the world I am leaving my grandson new ways of delivering old products ator from Florida is recognized. might be a compromised world because and services more efficiently. Unfortunately, since that time our Mr. NELSON of Florida. Mr. Presi- of some of the bad environmental deci- dent, four decades ago, in this extraor- sions that have been made by my gen- investments in research and develop- ment have not kept up. Other nations dinary feat we have recently seen re- eration. We have an opportunity to peated over and over with the death of change that, to make this a cleaner may soon outpace us in pursuit of the technological and scientific discoveries Walter Cronkite—we have seen that planet, to show ourselves as good stew- time he was broadcasting live when we ards of the Earth that God gave us, and that will define this generation. If we hope to assert our country’s pre- landed on the Moon. That restrained we can work together in a bipartisan TV anchor exhibited extraordinary ex- fashion to find a way to encourage the eminence in these fields, we must again invest significantly and responsibily in citement at the landing on the Moon. right conduct and discourage bad con- That is what the entire world felt at duct when it comes to these energy research and development. The vitality of our economy rests the time. issues. Some don’t want to touch it; with our ability to be the world’s lead- I was a lieutenant in the Army and they just want to criticize it. At the er in innovation. As we face some of happened to be behind the Iron Curtain end of the day, we won’t be judged as our greatest economic challenges, the at the particular time we lifted off. I having met our responsibility if we do scientific and engineering community went to the Embassy in Budapest, Hun- nothing. has the greatest potential to find ave- gary, and asked if they had a TV so I know Senator KAUFMAN is on the nues for what we need most: new, sus- that we could see the launch. They said floor and will ask for recognition at tainable jobs. That is why I am pleased no, but to take your shortwave radio this time. and go outside of the city on those hills I yield the floor. President Obama has set the goal to The PRESIDING OFFICER. The Sen- devote more than 3 percent of our econ- and put your radio antenna up, and you ator from Delaware is recognized. omy to research and development—a can get the BBC, which we did. They feat that will require significant Fed- cut into NASA control, and we three APOLLO MOON LANDING ANNIVERSARY eral as well as private investment. The young Americans stood on that hill Mr. KAUFMAN. Mr. President, I rise American Recovery and Reinvestment cheering as Apollo 11 lifted off. today, on the 40th anniversary of the Act has already provided over $20 bil- Apollo 11 Moon landing, to highlight We fulfilled the human dream of lion of Federal funds to reach this tar- the importance of scientific research boundless flight to another celestial get, and it is our job to see that these and development to America’s eco- body. Neil Armstrong promised us that resources are spent wisely in order to nomic recovery. it was ‘‘one small step for man, one achieve the maximum economic ben- Forty years ago, astronauts Neil giant leap for mankind.’’ It was to be efit. Armstrong and Buzz Aldrin took the the first step on our way to Mars and But the national goal is also about beyond, toward new knowledge of our first human steps on the Moon. It was, research and development investment needless to say, a historic moment for universe and, perhaps, the discovery of by private industry, which the govern- other life. the United States and the world. ment can help foster with pro-innova- Eight years prior, President John F. Yet today we are mired in a debate tion policies. We also need to encour- Kennedy declared before a joint session about the direction of our space pro- age a new generation of engineers gram. We had a little victory last week of the Congress that the United States through education policies that empha- ‘‘should commit itself to achieving the when we had unanimously confirmed size science and math. the new Administrator and Deputy Ad- goal, before the decade is out, of land- I am confident that engineers will ministrator of NASA. But now we are ing a man on the moon.’’ Armstrong’s continue to foster the research and in- in this debate of where the space pro- famous words, ‘‘One small step for novation that will lead America on the gram should go. The answer should be man, one giant leap for mankind,’’ path to economic recovery and pros- obvious: Our thirst for knowledge re- marked the fulfillment of President perity. They will help us build a clean quires that we explore the universe. I Kennedy’s goal. That momentous step energy economy, stay competitive in a often say that this country is built on signaled the coronation of the United globalizing world, and drive the real- the character we have and that we are, States as the world leader in the world applications from our Nation’s by nature, explorers and adventurers. sciences—a distinction we held through health and science research to improve the rest of the 20th century but which our quality of life. Moreover, these dis- When this country was founded, our is now in jeopardy. coveries and innovations will create frontier was westward. Now that fron- Make no mistake, the dawn of a re- millions of new jobs and invest in our tier is upward or inward. Space flight— newed American powerhouse economy future. as we continue in pushing that frontier will not come without the same deter- Just before Apollo 11 returned to upward, what does it do? It grows mination that propelled America’s Earth, Armstrong concluded that: science and technology. It grows edu- journey to the Moon. The key to Amer- The responsibility for this flight lies first cation. It grows the economy. ica’s success in a global economy will with history and with the giants of science Earlier today, I was on one of the be the research, innovation, and hard who have preceded this effort; next, with the network talk shows, and the whole idea work of our Nation’s scientists and en- American people, who have, through their was, what does it do for education? My gineers. will, indicated their desire; next, with 4 ad- goodness, look at the competitive edge Americans at the time were inspired ministrations and their Congresses, for im- America has in the global economy by a sense of patriotism and dedication plementing that will; and then, with the today from our superiority in math, agency and industry teams that built our to explore the universe following the spacecraft, the Saturn, the Columbia, the science, technology, and engineering Soviets’ successful launch of the Sput- Eagle, and the little EMU, the spacesuit and that occurred over four decades ago. nik satellite. The race to the Moon backpack that was our small spacecraft out Why? Because young people were so in- launched a substantial Federal invest- on the lunar surface. spired by the extraordinary feats we

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.023 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7683 were accomplishing in our space pro- added by this Act, shall be undertaken pur- penalty of death in accordance with chapter gram that they wanted to go into engi- suant to guideline, issued by the Attorney 228 (if death results from the offense), if— neering, math, science, and technology. General— AMENDMENT NO. 1617, AS MODIFIED That produced a generation of these (1) to guide the exercise of the discretion of (Purpose: To require that hate-crimes of- Federal prosecutors and the Attorney Gen- people from whom we are continuing to fenses be identified and prosecuted accord- eral in their decisions whether to seek death ing to neutral and objective criteria) reap the benefits. sentences under such section when the crime Of course, space flight improves and results in a loss of life; and At the appropriate place, insert the fol- enriches life here on Earth. How does it (2) that identify with particularity the lowing: do that? Well, if you think about it, type facts of such cases that will support the SEC. lll. GUIDELINES FOR HATE-CRIMES OF- classification of individual cases in term of FENSES. four decades ago what we did was—if Section 249(a) of title 18, United States we were going to the Moon, we had to their culpability and death eligibility as low, medium, and high. Code, as added by section lll of this Act, have highly reliable systems that were is amended by adding at the end the fol- (b) REQUIREMENTS FOR DEATH PENALTY.—If small in volume and light in weight. lowing: the Government seeks a death sentence in ‘‘(4) GUIDELINES.—All prosecutions con- That led to the revolution in micro- crime under section 249 of title 18, United ducted by the United States under this sec- miniaturization. For instance, my States Code, as added by this Act, that re- tion shall be undertaken pursuant to guide- watch is a part of the space program. sults in a loss of life— lines issued by the Attorney General, or the All of the microminiaturization was (1) the Attorney General shall certify with designee of the Attorney General, to be in- particularity in the information or indict- spawned off of that necessity to get cluded in the United States Attorneys’ Man- ment how the facts of the case support the things smaller, more reliable, and light ual that shall establish neutral and objective Government’s judgment that the case is in weight. That is just one example of criteria for determining whether a crime was properly classified among the cases involv- how it enriches life here on Earth. committed because of the actual or per- ing a hate crime that resulted in a victim’s ceived status of any person.’’. If you think back to the visionary death; President we had who started this (2) the Attorney General shall document in (At the request of Mr. REID, the fol- whole thing, President Kennedy said a filing to the court— lowing statement was ordered to be the opening of the vistas of space (A) the facts of the crime (including date of printed in the RECORD.) would bring high costs and grave dan- offense and arrest and location of the of- ∑ Mr. KENNEDY. Mr. President, Sen- gers. Indeed, it did. But he said that fense), charges, convictions, and sentences of ator SESSIONS has introduced an ‘‘this country was not built by those all state and Federal hate crimes (com- amendment that would create two new who rested.’’ mitted before or after the effective date of this legislation) that resulted in a loss of life death penalty eligible offenses for So today, on this historic anniver- and were known to the Assistant United crimes under the Matthew Shepard sary, let us not rest. Our President States Attorney or the Attorney General; Act. I stand firmly in opposition to any needs to make space exploration a na- and new legislation that would radically tional priority. Our Nation needs a (B) the actual or perceived race, color, na- expand the use of the death penalty, clear goal, and that is a lunar base, hu- tional origin, ethnicity, religion, gender, and I urge my colleagues in the Senate mans on Mars, and then beyond. It is sexual orientation, gender identity, or dis- to oppose the Sessions amendment be- up to us to continue the greatest ad- ability of the defendant and all victims; and cause it adds another new death pen- venture. It is up to us to reach for the (3)(A) the court, either at the close of the guilt trial or at the close of the penalty alty to the Federal Criminal Code. stars. trial, shall conduct a proportionality review Since the reinstatement of the death I yield the floor, and I suggest the ab- in which it shall examine whether the pros- penalty in the 1970s, the Death Penalty sence of a quorum. ecutorial death seeking and death sen- Information Center has reported that The PRESIDING OFFICER. The tencing rates in comparable cases in Federal 135 people have been released from clerk will call the roll. prosecutions are both greater than 50 per- death row in the United States because The bill clerk proceeded to call the cent; and of innocence—approximately one exon- roll. (B) if the United States fails to satisfy the eration for every nine executions. Mr. LEVIN. Mr. President, I ask test under subparagraph (A), by a preponder- Some have attempted to argue that the unanimous consent that the order for ance of the evidence, the court shall dismiss the Government’s action seeking a death large number of death row exonera- the quorum call be rescinded. sentence in the case. tions demonstrates that the system is The PRESIDING OFFICER. Without working. Yet in many cases, fatal mis- AMENDMENT NO. 1615, AS MODIFIED objection, it is so ordered. takes were avoided only because of dis- (Purpose: To authorize the death penalty) AMENDMENTS NOS. 1614, AS MODIFIED, 1615, AS coveries made by students or journal- MODIFIED, AND 1617, AS MODIFIED At the apporpriate place insert the fol- ists, not the courts. Mr. LEVIN. Mr. President, I ask lowing: In the last 6 months, there have al- unanimous consent that it be in order title, or both, and shall be subject to the ready been five exonerations in death for the Senate to consider en bloc the penalty of death in accordance with chapter penalty cases in four different States. following amendments: amendments 228 (if death results from the offense), if— Ronald Kitchen was freed from prison ‘‘(i) death results from the offense; or Nos. 1614, 1615, and 1617. ‘‘(ii) the offense includes kidnapping or an in Illinois after the State dismissed all The PRESIDING OFFICER. Without attempt to kidnap, aggravated sexual abuse charges against him on July 7. He had objection, it is so ordered. or an attempt to commit aggravated sexual spent 13 years on death row and a total Mr. LEVIN. I now call up amend- abuse, or an attempt to kill. of 21 years in prison. Herman Lindsey ments Nos. 1614, 1615, and 1617 and ask ‘‘(2) OFFENSES INVOLVING ACTUAL OR PER- was freed from Florida’s death row on that the amendments be modified with CEIVED RELIGION, NATIONAL ORIGIN, GENDER, July 9 after the State supreme court changes at the desk and that once SEXUAL ORIENTATION, GENDER IDENTITY, OR unanimously ruled for his acquittal modified, the amendments be agreed DISABILITY.— from a 2006 conviction. As the court ‘‘(A) IN GENERAL.—Whoever, whether or not to, as modified, and the motions to re- acting under color of law, in any cir- said: consider be laid upon the table en bloc. cumstance described in subparagraph (B) or [T]he State failed to produce any evidence The PRESIDING OFFICER. Without paragraph (3), willfully causes bodily injury in this case placing Lindsey at the scene of objection, it is so ordered. to any person or, through the use of fire, a the crime at the time of the murder. . . . In- The amendments, as modified, were firearm, a dangerous weapon, or an explosive deed, we find that the evidence here is equal- agreed to, as follows: or incendiary device, attempts to cause bod- ly consistent with a reasonable hypothesis of innocence. AMENDMENT NO. 1614, AS MODIFIED ily injury to any person, because of the ac- tual or perceived religion, national origin, There have also been three other ex- (Purpose: To limit prosecutions until the At- gender, sexual orientation, gender identity torney General establishes standards for onerations of death row prisoners, in- or disability of any person— cluding Nathson Fields in Illinois, Paul the application of the death penalty) ‘‘(i) shall be imprisoned not more than 10 At the appropriate place, insert the fol- years, fined in accordance with this title, or House in Tennessee, and Daniel Moore lowing: both; and in Alabama. SEC. ll. LIMITATION ON PROSECUTIONS. ‘‘(ii) shall be imprisoned for any term of This high number of exonerations has (a) IN GENERAL.—All prosecutions under years or for life, fined in accordance with led many observers, both liberal and section 249 of title 18, United States Code, as this title, or both, and shall be subject to the conservative, to express concern about

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.023 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7684 CONGRESSIONAL RECORD — SENATE July 20, 2009 the fairness of the death penalty’s ad- vey of the former and current presi- whether a case is among the ‘‘worst of ministration. As former Supreme Court dents of the Nation’s top academic the worst’’ is whether death sentences Justice Sandra Day O’Connor has stat- criminology societies, 88 percent of are sought and imposed more than half ed ‘‘if statistics are any indication, the these experts rejected the notion that the time in similar Federal cases. This system may well be allowing some in- the death penalty acts as a deterrent information will enable the court to as- nocent defendants to be executed.’’ to murder. In addition, a Hart Re- sess the extent to which race or other How can we continue to expand a sys- search Poll of police chiefs in the U.S. inappropriate factors may have been a tem that likely leads to the execution found that the majority of the chiefs systemic factor in prior capital charg- of innocent defendants? do not believe that the death penalty is ing and sentencing decisions in hate The U.S. Government should not be an effective law enforcement tool. If crimes that have resulted in the vic- in the business of taking the lives of the death penalty does not deter vio- tim’s death. The Kennedy amendment’s innocent Americans. Supreme Court lent crime, we shouldn’t ask our gov- requirements are a significant im- Justice Arthur Goldberg once said that ernment to play executioner. provement over existing Federal prac- the deliberate institutionalized taking Stephen Bright is a preeminent tice in death penalty cases. of human life by the state is the great- scholar on the death penalty. In his Senator SESSIONS’ amendment in- est degradation of the human person- law review article Will the Death Pen- creases the number of death-eligible of- ality imaginable. We must not expand alty Remain Alive in the Twenty-First fenses. It expands the use of the death this flawed system by accepting Sen- Century?, he states: penalty to two new offenses—those cre- ated by the Matthew Shepard Act. It is ator SESSIONS’ broad amendment. If we here in the United States examine In 2007, New Jersey became the first our own system, face its flaws, and think time to stand up against expansion of State to repeal the death penalty since about what kind of society we want to have, the death penalty. With this state- the modern era of capital punishment we will ultimately conclude that, like slav- ment, I submit several letters of oppo- ery and segregation, the death penalty is a began in the 1970s. New Mexico fol- sition to the Sessions amendment and relic of another era, that it represents the other amendments proposed by Senator lowed in 2009. The number of States dark side of the human spirit, and that we SESSIONS. I urge my colleagues to vote without a death penalty has now in- are capable of more constructive approaches against Senator SESSIONS’ amendment creased to 15. States have begun to rec- to the problem of crime in our society. and to support the Kennedy amend- ognize that flawed administration of All violent crime is reprehensible and ment to correct the flaws in Senator the death penalty has dire con- deserves to be punished. However, as SESSIONS’ proposal. sequences—no matter how slight or un- Stephen Bright points out, we are ca- In addition, Senator SESSIONS has in- intentional that flaw may be. pable of more constructive approaches troduced an amendment that creates a The American public has also recog- to dealing with crime than by using new Federal criminal offense for cases nized the danger created by a society the death penalty. The death penalty is involving assaults or battery of a U.S. that supports the death penalty. A 2008 a relic of the past. It has been proven serviceman—or a member of the serv- Gallup poll found that support for the to lead to wrongful executions where iceman’s immediate family. It creates death penalty is at its lowest level in innocent lives are lost at the hand of a new Federal crime to punish individ- the last 30 years. American citizens are their government. Although most de- uals who knowingly destroy or injure deciding that they will not tolerate veloped nations in the world have the property of an active or retired this archaic form of punishment. abandoned the death penalty, the serviceman or the property of an im- Furthermore, there is no denying United States, which purports to be a mediate family member, or conspires that there is a pattern of racial bias in leader in the protection of human to do so. Crimes against veterans, death sentencing. A study in California rights, continues to increase the num- members of the armed service are rep- found that those who killed Whites ber of death-eligible offenses that are rehensible. It is undeniable that our were over three times more likely to be on the statute books. Nation is held together by the protec- sentenced to death than those who The Kennedy amendment being of- tion that these brave men and women killed Blacks, and over four times fered will ensure consistency with ex- provide each day. This amendment more likely than those who killed isting federal law and Supreme Court places another mandatory minimum in Latinos. In addition, a study found precedent by setting forth clear stand- our Federal code. Mandatory mini- that in 96 percent of the States where ards for the use of the federal death mums are unjust, unwise and unneces- there have been reviews of race and the penalty only in hate crimes cases sary. Such sentences tie the court’s death penalty, there was a pattern of where a murder occurs. Given concerns hand to review the facts of an indi- either race-of-victim or race-of-defend- regarding the well-documented mis- vidual case. I hope that problems with ant discrimination, or both. Adminis- takes and racial disparities associated the broad language of this amendment tration of the death penalty is flawed, with death penalty cases, this amend- and the inclusion of a mandatory min- and that flaw disproportionately af- ment adds appropriate safeguards in imum can be worked out in conference. fects racial minorities. cases where the federal government Finally, I appreciate that we were The average cost of defending a Fed- seeks the ultimate—and irreversible— able to work with Senator SESSIONS to eral murder case when the death pen- penalty of death. In a hate crime pros- make some modifications to his alty is sought is $620,000. That is about ecution involving the death penalty, amendment regarding the issuance of eight times the cost of a Federal mur- the amendment will empower the trial Attorney General guidelines for hate der case in which the death penalty is court to determine whether the case crime offenses. For over 40 years, the not sought. It has been shown time and was properly considered to be among Justice Department’s record dem- time again that sentencing an indi- the most aggravated of death-eligible onstrates objective decisionmaking vidual to life in prison is far cheaper hate crimes. when selecting hate crime cases for than the administration of the death The Kennedy amendment is modeled prosecution—regardless of the adminis- penalty. For example, the California after an existing Nebraska State law, tration in charge. death penalty system costs taxpayers and will establish a system of meaning- DOJ guidance and professional re- $114 million a year beyond the costs of ful proportionality review in capital sponsibility rules already guard keeping convicts locked up for life. hate crime prosecutions. If the court against any nonmeritorious prosecu- Taxpayers have paid more than $250 determines that a case is not among tion. As originally drafted, Senator million for each of the State’s execu- the ‘‘worst of the worst’’ of hate crimes SESSIONS’ amendment could have pre- tions. While the monetary costs of resulting in a homicide, it can dismiss vented ‘‘mistake of fact’’ cases—such seeking the death penalty are high, the the government’s request for a death as an attack against a White person possibility of executing an innocent penalty at the conclusion of the guilt whom the defendant believed to be Af- American is the ultimate cost. trial or at the conclusion of the pen- rican American or cases based upon as- Some argue in favor of the death pen- alty trial, before the sentencing deci- sociations—in which a White woman is alty because they believe it deters indi- sion is submitted to the jury. Under targeted because her spouse is African viduals from committing some of the the Kennedy amendment, the test ap- American. In addition, there was con- most severe crimes. According to a sur- plied by the trial court to determine cern about whether the amendment

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.022 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7685 could also impede prosecutions where a expand the reach of the federal death penalty ible and highly controversial—with signifi- hate crimes victim was perceived to be to include certain non-homicide crimes. The cant doubts about its deterrent effect and African American, Latino, or gay be- United States Supreme Court has already clear evidence of disproportionate applica- cause the amendment covers a more held that the death sentence is an unconsti- tion against poor people. Moreover, there are tutional penalty for kidnapping (see serious, well-documented concerns about un- narrow class of victims than those cov- Eberheart v. Georgia); sexual abuse (see equal and racially biased application of the ered under the hate crimes bill. With Coker v. Georgia and Kennedy v. Louisiana); death penalty. According to the Justice De- the cooperation and assistance from and attempted murder (see Enmund v. Flor- partment’s Bureau of Justice Statistics, Chairman LEAHY’s staff along with ida and Tison v. Arizona), all crimes included since 1977, blacks and whites have been the Senator SESSIONS’ staff, I believe that in the scope of the Session amendment. To victims of murders in almost equal numbers, the modified version of this amend- now expand the reach of the federal death yet 80% of the people executed in that period ment will address these concerns so penalty to these non-homicide crimes would were convicted of murders involving white that the amendment will not be inter- be clearly unconstitutional, under recent Su- victims. preme Court precedent. Importantly, the vast majority of hate preted in any way to limit the scope of The ACLU has a long history of supporting crimes are prosecuted by state and local offi- victims who are protected under the civil rights legislation, including legislation cials. Failure to include the death penalty in Matthew Shepard Act. responding to criminal civil rights viola- the HCPA, which will be codified at 18 U.S.C. Mr. President, I ask to have the let- tions. While we did not support the under- 249, will not impact state action. States with ters to which I referred printed in the lying hate crimes provision in the defense the death penalty are free to pursue that op- RECORD. authorization bill because of First Amend- tion. The letters follow. ment weaknesses, an expansion of the federal We also urge you to oppose another amend- AMERICAN CIVIL LIBERTIES UNION, death penalty stands in stark contrast to ment, SA 1617, offered by Senator Sessions. Washington, DC, July 20, 2009. furthering the cause of civil rights in the This amendment would require the Attorney Re: ACLU urges ‘‘No’’ vote on SA 1615—Ses- United States. General to promulgate guidelines with ‘‘neu- sions Death Penalty Amendment to Hate The ACLU urges you to oppose the Ses- tral and objective criteria for determining Crimes Amendment in Defense Author- sions Amendment (S.A. 1615) to the defense whether a crime was motivated by the status ization Bill (S. 1390); Sessions amend- authorization bill and to vote ‘‘NO’’ when it of the victim.’’ This amendment is unneces- ment is unconstitutional. comes to the floor. The ACLU will score this sary and injects politics into the Justice De- DEAR SENATOR: On behalf of the American vote. Please do not hesitate to contact Chris partment decision-making process in these Civil Liberties Union (ACLU), a non-partisan Anders at (202) 675–2308 if you have any ques- cases. Senators should be especially con- organization with more than a half million tions regarding this amendment or the un- cerned that this additional Attorney General members, countless activists and supporters, derlying hate crimes provision. guidance could vary from Administration to and fifty-three affiliates nationwide, we Sincerely, Administration, resulting in uncertainty write to urge you to oppose Senate Amend- MICHAEL W. MACLEOD- and, at worst, an unequal application of this ment 1615, being offered by Senator Jeff Ses- BALL, important law. sions (R–AL) to the National Defense Au- Interim Director, Moreover, the amendment is redundant. thorization Act (S. 1390). This unconstitu- ACLU Washington The HCPA already requires the Attorney tional and misguided amendment seeks to Legislative Office. General to certify that a crime meets the re- expand the reach of the federal death pen- CHRISTOPHER E. ANDERS, quirement of the statute before initiating alty, including to non-homicide crimes, by Senior Legislative any prosecution: adding it to a hate crimes provision that the Counsel. (A) the State does not have jurisdiction; Senate adopted by unanimous consent on JENNIFER BELLAMY, (B) the State has requested that the Fed- Thursday night. Legislative Counsel. eral Government assume jurisdiction; Capital punishment has been proven to be (C) the verdict or sentence obtained pursu- an unreliable and expensive means of punish- LEADERSHIP ant to State charges left demonstratively ment and Congress should oppose any effort CONFERENCE ON CIVIL RIGHTS, unvindicated the Federal interest in eradi- to expand its scope and reach. According to Washington, DC, July 20, 2009. cating bias-motivated violence; or the Death Penalty Information Center, 135 DEAR SENATOR: On behalf of the civil (D) a prosecution by the United States is innocent people have been exonerated from rights, religious, professional, civic, and edu- in the public interest and necessary to se- death row since 1973, including five so far in cational groups below, we write to urge you cure substantial justice. 2009 alone. Such a high error rate illustrates to oppose two unnecessary and harmful This language tracks the very similar cer- the fallibility of our nation’s death penalty amendments offered by Senator Sessions to tification requirement from an existing stat- system. Indeed, chronic problems, including S. 1390, the FY 2010 Department of Defense ute, 18 U.S.C. § 245. FBI investigators and inadequate defense counsel and racial dis- Authorization bill. Justice Department prosecutors have had parities, have always plagued the death pen- As strong supporters of S. 909, the Matthew forty years of experience under this parallel alty system in the United States. In a 2003 Shepard Hate Crimes Prevention Act statute to develop well-established proce- report entitled ‘‘Death by Discrimination— (HCPA), we supported the addition of this dures governing the conduct of prosecutors— The Continuing Role of Race in Capital legislation as an amendment to S. 1390 last and for determining whether a case is bias- Cases,’’ Amnesty International found that week. At a time when Congress is poised to motivated and whether the Justice Depart- even though blacks and whites are murder advance civil rights protection by promoting ment has jurisdiction to pursue it. There is victims in nearly equal numbers of crimes, 80 new Federal-state partnerships and pro- no record of abuse by the Justice Depart- percent of people executed since the death viding new tools to address bias-motivated ment in selective prosecutions or in using its penalty as reinstated have been executed for violence, the proposed amendments by Sen- authority capriciously or arbitrarily. There- murders involving white victims. More than ator Sessions (a staunch opponent of the fore, there is no need to burden these pros- 20 percent of black defendants who have been HCPA) would be a disturbing step back- ecutions with another layer of guidance and executed were convicted by all-white juries. ward—and raise the prospects of unequal, po- another procedural obstacle. Even if one supports the death penalty in litically-motivated, shifting standards of The time for action to update and expand theory, there is no justifiable reason to ex- justice in applying the new hate crime law in federal hate crime law is now. These amend- pand our system of capital punishment while the future. ments offered by Senator Sessions are unnec- such discriminatory impacts continue to One amendment offered by Senator Ses- essary and harmful and we urge you to op- exist. sions, S.Amdt. 1615, would add the death pen- pose them. A troubling record of the death penalty alty to the provisions of the HCPA. We Please contact Michael Lieberman, Anti- being imposed on defendants who were later strongly oppose this amendment. Defamation League Director, Civil Rights found to be innocent, along with a long his- The HCPA was first introduced in 1997, but Policy Planning Center or Nancy Zirkin, tory of racial and geographic disparities in no version of the bill has ever included the LCCR Executive Vice President with any its use, have spurred states to move away death penalty. Senate and House sponsors of questions. Thank you in advance for your from its use. In 2007 and 2008, New Jersey and the bill and the very broad coalition of sup- support. New Mexico, respectively, abolished the porters have always opposed adding the Sincerely, death penalty, bringing to 15 the number of death penalty to this legislation. The House Anti-Defamation League; Human Rights states (including the District of Columbia) of Representatives approved its very similar Campaign; Leadership Conference on that currently have no death penalty. In ad- version of this measure, HR 1913, the Local Civil Rights; National Council of Jew- dition, in recent years, the number of death Law Enforcement Hate Crime Prevention ish Women; American Association of sentences returned by juries has declined Act, without the death penalty on April 29 People with Disabilities; American As- precipitously—from around 300 a year in the by a vote of 249–175. An amendment to add sociation of University Women 1990s to approximately 120 in the past few the death penalty was defeated at the House (AAUW); American Federation of years. Judiciary Committee markup. Labor-Congress of Industrial Organiza- The ACLU is also concerned that the Ses- Supporters of the HCPA should oppose this tions (AFL–CIO) American Federation sions Amendment would unconstitutionally amendment. The death penalty is irrevers- of Teachers.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.022 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7686 CONGRESSIONAL RECORD — SENATE July 20, 2009 American Jewish Committee; Amputee has definitively ruled that a death sentence damage or attempted damage to such prop- Coalition of America; Asian American is inappropriate when the offense did not re- erty is not more than $500, be fined under Justice Center; Association of Univer- sult in the death of the victim. Kennedy v. this title in an amount not less than $500 nor sity Centers on Disability; Bazelon Louisiana, 554 US (2008). The Court held more than $10,000 and imprisoned not more Center for Mental Health Law; B’nai that none of these laws, where the crime than 2 years; B’rith International; DignityUSA; Dis- against an individual involved no murder, ‘‘(2) in the case of destruction or injury to ability Rights Education and Defense were in keeping with the national consensus property in which the damage or attempted Fund. restricting the death penalty to the worst of- damage to such property is more than $500, Family Equality Council; GLSEN—The fenses. The ABA is thus concerned that the be fined under this title in an amount not Gay, Lesbian and Straight Education proposed Amendment is not consistent with less than $1000 nor more than $100,000 and im- Network; Helen Keller National Center constitutional principles or Supreme Court prisoned not more than 5 years; and National Coalition on Deaf-Blindness; precedent. ‘‘(3) in the case of a battery, or an assault Hindu American Foundation; Human The ABA strongly condemns hate crimes; resulting in bodily injury, be fined under this Rights Campaign; Human Rights First; we adopted policy in 1987 that states that title in an amount not less than $2500 and Jewish Council for Public Affairs; ‘‘the ABA condemns crimes of violence in- imprisoned not less than 16 months nor more Legal Momentum. cluding those based on bias or prejudice than 10 years. NAACP; NA’AMUT USA; National Advo- against the victim’s race, religion, sexual ‘‘(b) EXCEPTION.—This section shall not cacy Center of the Sisters of the Good orientation, or minority status, and urges apply to conduct by a person who is subject Shepherd; National Center for vigorous efforts by federal, state, and local to the Uniform Code of Military Justice. Transgender Equality; National Coali- officials to prosecute the perpetrators and to ‘‘(c) DEFINITIONS.—In this section— tion for the Homeless; National Coali- focus public attention on this growing na- ‘‘(1) the term ‘Armed Forces’ has the tion on Deaf-Blindness; National Coali- tional problem.’’ Likewise, ABA supports the meaning given that term in section 1388; tion to Abolish the Death Penalty; Na- aggressive prosecution and deterrence of ‘‘(2) the term ‘immediate family member’ tional Congress of Black Women. these offenses. However, in light of its expe- has the meaning given that term in section National Council of La Raza; National riences, studies, and policies on the death 115; and Disability Rights Network; National penalty, the ABA opposes an expansion of ‘‘(3) the term ‘United States serviceman’— Gay and Lesbian Task Force Action the current federal death penalty system so ‘‘(A) means a member of the Armed Forces; Fund; National Urban League; Ortho- that these crimes would carry a potential and dox Church in America; Parents, Fami- death sentence for offenders. ‘‘(B) includes a former member of the lies and Friends of Lesbians and Gays The American Bar Association thus urges Armed Forces during the 5-year period begin- (PFLAG) National; People for the you to vote against this Amendment when it ning on the date of the discharge from the American Way; Religious Institute. is considered on the Senate floor. Armed Forces of that member of the Armed School Social Work Association of Amer- Sincerely, Forces.’’. ica; Sikh American Legal Defense and THOMAS M. SUSMAN, (b) TECHNICAL AND CONFORMING AMEND- ∑ Education Fund; The American-Arab Director, Governmental Affairs Office. MENT.—The table of sections for chapter 67 of Anti-Discrimination Committee (ADC); AMENDMENT NO. 1616 title 18, United States Code, is amended by Union for Reform Judaism; Unitarian Mr. LEVIN. Mr. President, I ask adding at the end the following: Universalist Association of Congrega- unanimous consent that the Sessions ‘‘1389. Prohibition on attacks on United tions; United Methodist Church, Gen- amendment No. 1616 now be the pend- States servicemen on account eral Board of Church and Society; of service.’’. Women of Reform Judaism; YWCA ing business, and that at 4:10 p.m., the USA. Senate proceed to vote in relation to Mr. LEVIN. I yield the floor. the amendment, with the time until The PRESIDING OFFICER (Mrs. AMERICAN BAR ASSOCIATION, then equally divided and controlled in HAGAN). The Senator from Alabama. Washington, DC, July 20, 2009. the usual form. Mr. SESSIONS. Did we get an agree- DEAR SENATOR: I write on behalf of the The PRESIDING OFFICER. Without American Bar Association to urge you to ment on the time before we vote? objection, it is so ordered. The PRESIDING OFFICER. The time vote against the Sessions Amendment (No. The clerk will report. 1615) to create a death penalty offense for The legislative clerk read as follows: is equally divided until 4:10 p.m. what are now non-capital hate crimes. We Mr. SESSIONS. Madam President, I The Senator from Michigan [Mr. LEVIN], understand that the amendment will be of- EVIN for Mr. SESSIONS, proposes an amendment thank Senator L . It is always a fered during consideration of S. 1390, Depart- pleasure to work with him and others ment of Defense authorization legislation. numbered 1616. For decades, the American Bar Association Mr. LEVIN. Mr. President, I ask who work with us to make sure that has studied the administration of the death unanimous consent, with the permis- when we prosecute a hate crime that penalty in the United States and identified sion of the Senator from Alabama, that results in death, that it is possible to serious concerns that must be addressed by have the death penalty in Federal all jurisdictions that seek to impose it. the reading of the amendment be dis- pensed with. court. I think that is appropriate in Among these concerns are: (1) the lack of those instances where it may be appro- competent counsel in capital cases; (2) the The PRESIDING OFFICER. Without need for proper procedures for adjudicating objection, it is so ordered. priate for the Federal Government to claims in capital cases (including the avail- The amendment is as follows: proceed with such a death penalty ability of federal habeas corpus); and (3) ra- (Purpose: To prohibit assault or battery of a prosecution. It would be odd that it cial discrimination in the administration of United States serviceman on account of would not be possible and a crime could capital punishment. The ABA has called for the military service of the United States have resulted—easily in multiple mur- reforms that are consistent with many long- serviceman or status as a serviceman) ders—by one of the most vicious crimi- standing ABA policies intended to ensure At the appropriate place, insert the fol- nals one can imagine. that death penalty cases are administered lowing: fairly and impartially, in accordance with The next amendment I call the sol- ll due process, and to minimize the risk that SEC. . ATTACKS ON UNITED STATES SERVICE- diers amendment. It is distinct from MEN. innocent persons may be executed. the hate crimes legislation we have (a) IN GENERAL.—Chapter 67 of title 18, The proposed Sessions Amendment to S. United States Code, is amended by adding at been discussing. It expands the protec- 1390 (‘‘Amendment’’) fails to address the pro- the end the following: tions that the United States of Amer- found concerns articulated by the ABA and ‘‘§ 1389. Prohibition on attacks on United ica provides to its soldiers. Remember, others about the lack of fairness and due we provide protections now to Federal process in the federal death penalty system. States servicemen on account of service To expand an already ‘‘broken system’’ with- ‘‘(a) IN GENERAL.—Whoever knowingly as- officers, postmen—any Federal officer out first addressing the serious flaws in the saults or batters a United States serviceman of the United States is protected, and system would risk the execution of innocent or an immediate family member of a United so are soldiers in certain cir- persons and other acts of injustice. States serviceman, or who knowingly de- cumstances. The Amendment would also result in an stroys or injures the property of such serv- This amendment would create a new unprecedented and unconstitutional expan- iceman or immediate family member, on ac- Federal crime which puts members of sion of the federal death penalty. Unlike count of the military service of that service- the U.S. military on equal footing with every other state death penalty statute in man or status of that individual as a United the United States, a death sentence pursuant States serviceman, or who attempts or con- other protected classes. It makes it a to this Amendment is available for an of- spires to do so, shall— crime to knowingly assault, batter a fense that did not result in the death of a ‘‘(1) in the case of a simple assault, or de- serviceman or immediate family mem- victim. The United States Supreme Court struction or injury to property in which the ber or knowingly destroy or injure

VerDate Nov 24 2008 03:21 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\A20JY6.006 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7687 their property ‘‘on account of the mili- [Rollcall Vote No. 234 Leg.] care. He insists his health care plan tary service or status of that indi- YEAS—92 will not add to our Nation’s deficit, de- vidual as a United States serviceman Akaka Enzi Menendez spite the nonpartisan Congressional ... ’’ Alexander Feingold Merkley Budget Office saying exactly the oppo- It is not a total expansion of Federal Barrasso Feinstein Murray site. law, but it says if you are attacked or Baucus Franken Nelson (NE) Today we learned that the President Bayh Gillibrand Nelson (FL) assaulted, battered, or your family Begich Graham Pryor is refusing to release a critical report members are simply because you are a Bennet Grassley Reed on the state of our economy which con- member of the U.S. military serving Bingaman Gregg Reid tains facts essential to this debate. Boxer Hagan your country, then the Federal Govern- Risch What is he hiding? If the actual legisla- Brown Harkin Roberts Brownback Hatch tion came close to matching the Presi- ment would obviously have the ability Rockefeller Bunning Hutchison to prosecute because it is a high duty, Sanders dent’s rhetoric, he would have no prob- Burr Inhofe Schumer lem passing this bill, with huge Demo- and no higher responsibility, for the Burris Inouye Sessions U.S. Government to protect its soldiers Cantwell Isakson cratic majorities in both Chambers. from assaults arising from their service Cardin Johanns Shaheen But Americans are not being fooled and Carper Johnson Shelby to our country. Snowe we are discovering the truth about his Casey Kaufman plan, which includes rationed care, tril- The PRESIDING OFFICER. The Sen- Chambliss Kerry Specter ator’s time has expired. Coburn Klobuchar Stabenow lions in new costs and high taxes, and Mr. SESSIONS. Madam President, we Cochran Kohl Tester penalties which will destroy jobs, and Collins Kyl Thune have had problems with these assaults Udall (CO) even government-funded abortion. Conrad Lautenberg In addition, we are looking at a def- on our military officers. This will be a Corker Leahy Udall (NM) good step in correcting that situation. Cornyn Levin Vitter icit increased by hundreds of billions of I thank the Chair for the opportunity Crapo Lieberman Voinovich dollars and billions in new taxes on to speak. I hope my colleagues will DeMint Lincoln Warner small businesses. It could destroy over Dodd Lugar Webb support the amendment. Dorgan McCain Whitehouse 4 million more jobs, according to a The PRESIDING OFFICER. The Sen- Durbin McCaskill Wicker model by the President’s own chief eco- ator from Michigan. Ensign McConnell Wyden nomic adviser, and it could force 114 Mr. LEVIN. Madam President, first, I NOT VOTING—8 million Americans to lose their health thank the Senator from Alabama for Bennett Kennedy Mikulski care, according to a nonpartisan group. this amendment. He is a valued mem- Bond Landrieu Murkowski Let’s be clear. There is no one in this ber of the Armed Services Committee. Byrd Martinez debate advocating that we do nothing, He knows, as we all know, because of The amendment (No. 1616) was agreed despite the President’s constant straw our work on the Armed Services Com- to. man arguments. Republicans have of- mittee, how our men and women in The PRESIDING OFFICER. The Sen- fered comprehensive health care re- uniform protect us, and we should do ator from South Carolina. form solutions that cover millions of everything we can when it comes to Mr. DEMINT. I ask unanimous con- the uninsured without exploding costs, our criminal laws to protect them and sent I be allowed to speak for 5 minutes raising taxes, and rationing care. Since their families. This amendment is and Senator HUTCHISON to follow me. I have been in Congress, we have intro- aimed at doing this. It would create a The PRESIDING OFFICER. Is there duced a number of proposals that new Federal crime. It is appropriate we objection? would help the uninsured buy their do that. I support the amendment. Mr. LEVIN. I was going to inquire of own policies. I suggest the absence of a quorum. the Senator whether he is speaking on We have introduced bills that would The PRESIDING OFFICER. Without the bill? It is morning business. allow them to deduct it from their objection, the clerk will call the roll. Mr. MCCAIN. For how long? taxes just as businesses do, but our The bill clerk proceeded to call the The PRESIDING OFFICER. Is there Democratic colleagues have killed it. roll. objection? We have introduced legislation that Mr. LEVIN. Madam President, I ask Without objection, it is so ordered. would allow Americans to buy health insurance anywhere in the country, to unanimous consent that the order for HEALTH CARE REFORM make it more competitive and more af- the quorum call be rescinded. Mr. DEMINT. Madam President, I fordable, but the Democrats have The PRESIDING OFFICER. Without know we are debating the Defense Au- killed it. We have introduced legisla- objection, it is so ordered. thorization bill and a myriad of other tion that would allow Americans to use Mr. LEVIN. I ask for the yeas and things we are sticking into the bill. Na- money in their health savings accounts nays. tionally, Americans are focused on The PRESIDING OFFICER. Is there a to pay for an insurance premium, but health care and what the President and sufficient second? the Democrats have killed it. We have There appears to be a sufficient sec- the majority are trying to push introduced legislation that would stop ond. through in a mad rush that we seem to all these frivolous and wasteful law- The question is on agreeing to have been in all year long under this suits that cause the cost of medicine to amendment No. 1616. guise of crisis. It is pretty amazing in go up, but the Democrats have killed The clerk will call the roll. that the legislation we are talking it. We have introduced association The legislative clerk called the roll. about would not take effect for several health plans that would allow small Mr. DURBIN. I announce that the years, so it is incredible we are being businesses to come together so they Senator from West Virginia (Mr. told we need to pass this in the next could buy policies less expensively, but BYRD), the Senator from Massachusetts couple of weeks before we go home in the Democrats have killed it. Now they (Mr. KENNEDY), the Senator from Lou- August. want to come back and say the govern- isiana (Ms. LANDRIEU), and the Senator The last time the President made ment needs to take over health care. from Maryland (Ms. MIKULSKI) are nec- grand promises and demanded passage It makes absolutely no sense at all. essarily absent. of a bill before it could be reviewed or We can give every American access to Mr. KYL. The following Senators are even read, we ended up with the colos- affordable health insurance plans if we necessarily absent: the Senator from sal stimulus failure and unemployment get out of the way and allow the mar- Utah (Mr. BENNETT), the Senator from near 10 percent. Now we are being told ket to work. Missouri (Mr. BOND), the Senator from they misread the economy. But we This is no time to rush into another Florida (Mr. MARTINEZ), and the Sen- were urged to pass this within a day or government takeover of another part ator from Alaska (Ms. MURKOWSKI). two because we had to do it in order to of the American economy, spending The PRESIDING OFFICER. Are there keep unemployment below 8 percent. billions of dollars we do not have and any other Senators in the Chamber de- Now the President wants Americans raising taxes on the small businesses siring to vote? to trust him again but he cannot back that create jobs. The result was announced—yeas 92, up the utopian promises he is making There are good solutions. I intro- nays 0, as follows: about a government takeover of health duced one a couple of weeks ago that

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.026 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7688 CONGRESSIONAL RECORD — SENATE July 20, 2009 would give people fair treatment. If Most importantly, it gave us a new President Kennedy made that com- you do not get your insurance at work vision of ourselves as a nation and the mitment for U.S. leadership in space or you are unemployed, we will give sense of our ability to accomplish and set the highest possible goal for es- you $5,000 a year to buy health insur- things that once seemed utterly impos- tablishment of that leadership with the ance. That is fair treatment. It is the sible and probably were not even Apollo Program at a time when the Na- same basic benefit we give people who thought about but yet had just hap- tion faced challenges not unlike those get insurance at work, good insurance pened. we face today. I believe he did so be- that does not cost any more money. The anniversary we celebrate today cause he saw that space exploration I would encourage the President to comes at a time when we need to be re- was something that could elevate the stop the rhetoric, let us take some minded that we can overcome chal- entire national spirit and enhance its time for debate, let’s reform health lenges and achieve great things when broader economy and national secu- care in a way that makes it possible for we are committed and dedicated and rity. every American to have a health insur- prepared to step up to the plate. We As we celebrate the anniversary of ance plan they can afford and own and face enormous challenges as a nation the lunar landing, we honor the vision, keep. We do not need the government and as part of the global community: the courage, and the accomplishments to take it over. finding solutions to our current eco- of all of the men and women of Apollo, I yield for the Senator from Texas. nomic crisis; ensuring our national se- whether astronauts, engineers, flight The PRESIDING OFFICER. The Sen- curity; finding solutions to the many directors, or assembly workers, and ator from Texas is recognized. domestic issues we face in health care, their families. We thank them for two APOLLO 11 ANNIVERSARY unemployment, energy, and the envi- generations of excellence and leader- Mrs. HUTCHISON. Madam President, ronment. ship in science and technology. today I rise to speak and commemorate What many may not recall is that in How do we best honor that legacy? a great milestone; that is, Apollo 11, May of 1961, President Kennedy spoke We can do it by continuing our Na- tion’s commitment to space explo- the anniversary of its landing. to Congress on ‘‘urgent national Forty years ago today, on a hot Sun- needs.’’ He spoke of issues strikingly ration and to sustain the leadership day afternoon in Texas, three astro- similar to those we face today. He role they won for us in those early pio- naut families and close friends in the began with a focus on ‘‘the great bat- neering days. We must recognize, as Houston suburb of El Lago were gath- tleground for the defense of freedom’’ President Kennedy did, that space ex- ered around television sets in the pri- being in Asia, Latin America, Africa, ploration was an important and urgent national need, not an activity to be vacy of their homes watching grainy and the Middle East, and of enemies of short-changed or sacrificed in the face broadcasts and listening to the sounds freedom whose ‘‘aggression is more of other pressing economic and secu- from a small loudspeaker wired from often concealed than open.’’ rity concerns. Mission Control conveying the voices Remember this is 1961, and the Presi- dent is talking about issues that relate We must make the investment need- of astronaut Charlie Duke’s conversa- ed to ensure that the United States has tion with the Apollo 11 astronauts dur- to us today. Yet, he said, as he turned to the economy, he described the need the ability to launch humans into ing the final moments leading to the space. Today, we are looking at a few first landing on the Moon. ‘‘to turn recession into recovery’’ and meeting ‘‘the task of abating unem- more missions of our space shuttle, and It was an intensely personal experi- then we are looking at up to 5 years in ence for all of them and yet one shared ployment and achieving a bold use of our resources.’’ He spoke of shoring up which America will not be able to put by much of the world. Everyone was men and women in space at all. glued to their televisions, those who our international allegiances and pro- viding aid to developing countries This is, as Charles Krauthammer said could get to a television at that mo- in a recent article: Five years in which ment, and waiting for the word, wher- seeking to establish themselves as democratic states. He spoke of reshap- we are going to beg Russia or even ever they were. It was 3:18 p.m. Hous- China for space on their spaceships to ton time when Neil Armstrong an- ing our military to better meet uncon- ventional threats and mobility and be able to put men and women in space. nounced: ‘‘Houston, Tranquility Base Forty years ago America did some- here, The Eagle has landed.’’ flexibility in response and the need to ensure effective and accurate intel- thing that changed our country and the A baseball game in Yankee Stadium world. It gave us new technology. It in New York was stopped, and the an- ligence. This sounds so familiar because we gave us the dominance of space for our nouncement made that America had national security purposes. It gave us put men on the Moon. The audience are talking about a Moon landing, but yet we are facing all of these domestic, the ability to have satellite-guided erupted in applause and then burst into missiles that can now go into a window singing ‘‘The Star Spangled Banner.’’ international, and security issues at the same time. But yet we do not lose from miles away and stop the collat- In college dormitories, in workplaces, eral damage and the death of innocent in living rooms across the world, peo- that zeal to command something that is beyond the parameters we have humans when we are in a war situa- ple gathered to watch this broadcast of tion. It has given us so much. Forty the ‘‘giant leap for mankind’’ that Neil known. President Kennedy spoke of the need years later we are sitting here with a Armstrong made, and Buzz Aldrin fol- to expand efforts in civil defense, what space program where we are going to lowing him onto the surface of the we might now call homeland security, have 5 years in which we cannot put Moon, that attracted and compelled to ensure the safety of our citizens at men and women into space with our millions of people throughout the home. He spoke of renewed calls for own vehicle. That is not what we world. arms control and reductions in nuclear should be celebrating on this 40th anni- The Apollo 11 landing is forever versary. We should be celebrating a re- etched in the minds of those who arsenals across the globe. Finally, he focused his concluding re- newal of the commitment to space ex- watched it or heard it. They are bound marks on the challenge of space explo- ploration. together in the history of mankind in a We should be celebrating that we are ration saying: stunning milestone in the advancement going to finish out an international of humanity. Now is the time . . . for a great new Amer- ican enterprise—time for this Nation to take space station in which many of our The Apollo Program gave us the very a clearly leading role in space achievement international partners have invested first view through the eyes of human which, in many ways, may hold the key to billions, as have we, and that we are beings, captured and transmitted by our future on earth. committed to putting people in that their cameras, of the Earth, our own He went on to use those words that space station that is now designated as spaceship against the infinite backdrop are perhaps the most familiar from a national laboratory—our part is—to of space. It gave us great advancement that speech. have the scientific exploration capa- in technology, new industries, capabili- I believe this Nation should commit itself bility to be able to take the next step ties benefitting everyone on Earth, es- to achieving the goal, before this decade is in medical research that cannot be pecially medical science and quality of out, of landing a man on the moon and re- done on Earth because we have that life. turning him safely to the earth. national lab.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.028 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7689 The idea that we would make that in- So I thank the Senator for remem- State’s law. Strangers coming into vestment and then not be able to put bering Buzz Aldrin as well because he town carrying a hidden weapon have an people there for 5 years is unthinkable. was a great astronaut and one of the open sesame opportunity to go any- That is what it is, it is unthinkable. leaders still today for that very impor- where they darn please—into town, So I want to remember the words of tant mission. into a school, into a sporting event, President Kennedy, and I have to say I Mr. LAUTENBERG. It looked as into a shopping mall, anywhere they want to remember another speech that though it were a fairly simple mission. wish to go regardless of what that President Kennedy made. It was at Now as we study it more thoroughly State’s laws are. Because under this Rice University. He was talking about and realize what conditions were like amendment it is clear: If you have a li- why we are committed to putting peo- there—the dust was threatening to the cense for a permit from a State in the ple on the Moon, why we are com- people, to the machinery, to the ship Far West and you want to carry it to mitted to things that are so visionary that took them there, to the spaceship the eastern part of our country, you for the future. that took them there—it was a re- can do so. Just take away the public He said: Why would we put people markable event. I join the distin- safety laws in that State and essen- into space? Why would Rice play guished Senator from Texas in her trib- tially erase the fact that they are now Texas? Not because it is easy but be- ute. in the laws. cause it is hard. Mrs. HUTCHISON. I thank the Sen- The amendment declares to State That very next year, Rice tied the ator from New Jersey. governments that they don’t know how University of Texas in football. It was AMENDMENT NO. 1618 to take care of themselves. The gun not in the same league as putting men Mr. LAUTENBERG. Madam Presi- lobby in Washington is the best place on the Moon. It was not. But he had dent, this past Friday, five policemen to go to find out what you should or the vision and he also had the humor from a city in New Jersey, Jersey City, can do. We can’t tolerate such an in- to convey it. He knew what made our were shot by a single gunman. On the sult. country the best country in the world previous Wednesday, only a few hun- Here are some of the State concealed was the vision of doing things that dred feet from the steps of this Senate, weapon requirements that would be would be seemingly impossible and a gunman fired an assault weapon at wiped out by the amendment. Eighteen having the capacity and commitment Capitol policemen. Despite this point States prohibit alcohol abusers from to do it. in time, after all of that mayhem last receiving carry permits, including That is what President Kennedy led week, we have seen the prospect for South Dakota. Under the Thune us to do 40 years ago. Today we must more gun violence offered by the Sen- amendment, these 18 States would have renew that commitment. That is the ator from South Dakota. to allow alcohol abusers from other only way we can show we are worthy of He has offered an amendment that States to carry a weapon into their all that has gone on before us that led would gut State public safety laws and State. Twenty-four States prohibit to Neil Armstrong’s famous words: make it easier to carry concealed ‘‘One small step for man, one giant those convicted of certain mis- weapons across State lines, regardless demeanor crimes, including Pennsyl- leap for mankind.’’ of the laws of that State. Currently 48 I hope with all of the remembrances vania, which does not allow those con- States do allow some sort of concealed we are making that the real effort that victed of impersonating a police offi- carried weapons. The standards vary will be made is what Charlie Bolden cer, to carry concealed weapons. Under from State to State based on each said when he was in our committee last this amendment, those prohibitions week. The chairman of the committee State’s law enforcement needs and would be violated. Nineteen States re- asked Charlie: ‘‘NASA’s deteriorating. challenges. But under this new idea, quire those seeking concealed carry Tell me why we should support it?’’ this amendment would permit a con- permits to complete gun safety pro- Charlie Bolden, the new Adminis- cealed carry permit from one State to grams. Under this amendment, those trator of NASA, said: simply override the rules in other States would have to allow untrained, I am committed to doing it and doing it States. If I get a permit in State A, I untested gun users from other States right. We have to have the commitment of can go to State B, C, D, any one I to carry concealed firearms. It is an Congress to make it happen. choose, with a weapon on my back, on outrage. He knows what is right. He is a my hip, wherever I want it. And I don’t The proponents of this amendment former astronaut, he is an engineer, he think it matters how many guns one claim they are respecting each State’s is a great Texan who is a visionary and carries. concealed carry laws. That is simply the person who can implement that vi- Understand this thoroughly, that de- not true. Not only does the Thune sion, and we are going to support him spite a State’s laws on availability of amendment override a State’s con- in every way. concealed guns, Congress would over- cealed weapons law, it also overrides I hope all of my colleagues in Con- ride them. The State says no. Congress State laws restricting the type of guns gress will do the same thing on the eve would say: No, we want the Federal that can be possessed in that State, of the anniversary of one of the great Government to be able to tell you what such as assault weapons. Think about achievements of America and all man- to do. That is unusual, because I think that; the type of guns that are re- kind. the offeror of this amendment is more stricted in the State, that rule would I yield the floor. often a States rights person. But now be obviated, and you would have to per- The PRESIDING OFFICER. The Sen- he wishes Congress to override State mit the licensed gun owner from a far ator from New Jersey is recognized. laws and make one’s own State follow different State to come in. Mr. LAUTENBERG. Madam Presi- this mandate. It would deprive one’s I have a letter from 400 mayors op- dent, I commend the Secretary from State from making its own decisions posed to the Thune amendment. Over Texas for her commemoration of this on the issue. One’s constituents would 400 mayors wrote to the Congress and spectacular day when Americas went not be able to say they don’t want this said: Vote no on the Thune amend- to the Moon. One of them was a fellow to happen. In fact, this amendment ment, including 106 from Pennsylvania, named Buzz Aldrin, who lived in the would allow some people to carry con- 51 from Florida, 50 from Ohio, 13 from town of Montclair, NJ, the town that I cealed assault weapons, multifiring, Wisconsin—the list goes on—from Lou- inhabited for many years. multishell firing weapons in States isiana, from Missouri, from South Mrs. HUTCHISON. I thank the Sen- where those assault weapons are not Carolina, from almost every State in ator from New Jersey because, of even permitted. the country that has its own gun laws. course, Buzz Aldrin is going to be at The amendment before us is more They have written and said: Don’t do that commemoration tomorrow and about the right of States to make their this. has been one of the leaders in trying to own decisions about how they keep As these mayors explained in their make sure America does not flag in its families in their States safe from gun letter: enthusiasm and commitment to space violence. This amendment would allow Each state ought to have the ability to de- exploration and all that it will bring almost anyone anywhere to carry a cide whether to accept concealed carry per- us. concealed firearm regardless of that mits issued in other states.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.029 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7690 CONGRESSIONAL RECORD — SENATE July 20, 2009 I ask unanimous consent that this able—and it should be each state’s choice to at that time who said: This isn’t a gun letter be printed in the RECORD. make. matter. It is nothing too serious and There being no objection, the mate- This legislation will also aid and abet gun why bother. I am pleased to tell the rial was ordered to be printed in the traffickers. In December 2008, Mayors Senate that with Supreme Court affir- Against Illegal Guns issued a first-of-its- RECORD, as follows: mation about 6 months ago, saying kind report illustrating how traffickers al- JULY 17, 2009. ready rely on states with weak laws as a that the law prohibiting gun permits to Re: 400 mayors call on Congress to respect source for the guns they sell illegally. In spousal abusers stood, 150,000 of these State autonomy and protect public safe- fact, the report showed that 30% of crime people were denied guns. ty by voting no on the Thune Concealed guns crossed state lines before they were re- When I look at these things, it raises Carry Amendment. covered, meaning traffickers and straw pur- a question. While a State such as Flor- Hon. NANCY PELOSI, chasers often purchase guns in one state and ida works to correct these problems, Office of the Speaker, then drive them to their destinations, often should every other State be forced to Washington, D.C. major cities hundreds of miles away. This allow felons, domestic abusers, and sex Hon. HARRY REID, bill would frustrate law enforcement by al- offenders to carry guns within their Senate Majority Leader, lowing criminal traffickers to travel to their Washington, D.C. rendezvous with loaded handguns in the States? I don’t want it in my State. DEAR SPEAKER PELOSI AND MAJORITY LEAD- glove compartment. Even more troubling is This is a reckless amendment that ER REID: As members of Mayors Against Ille- that a trafficker holding an out-of-state per- would force States from coast to coast gal Guns, a bi-partisan coalition of more mit would be able to walk the streets of to comply with the weakest conceal than 400 mayors representing more than 56 their city with a backpack full of loaded carry laws. A few months ago in Ala- million Americans, we are writing to express guns, enjoying impunity from police unless bama, a person holding a concealed our strong opposition to Congressional bills he or she was caught in the act of selling a carry license went on a murderous pushing for the Thune Concealed Carry firearm to another criminal. rampage that lasted almost a full hour Amendment. If passed, this legislation will Finally, this law would not only frustrate and spanned two communities. First he infringe upon the ability of state and local our police officers, it would endanger them. shot and killed his mother in Coffee governments to protect their citizens with Policing our streets and confronting the sensible, constitutional, community-specific risks inherent in even routine traffic stops is County, AL. He then put on a vest laws and regulations regarding the carrying already perilous enough without increasing loaded with firearms and ammunition, of hidden handguns. It will empower gun the number of guns that officers encounter. got into his car and drove into town. traffickers, making it easier for them to Ambiguity as to the legality of firearm pos- Once there he shot and murdered 10 in- transport the guns they sell to criminals session could lead to confusion among police nocent people—we can’t forget that— without being apprehended by law enforce- officers that could result in catastrophic including two young mothers, a father, ment. Finally, the bill threatens the safety incidences. Congress should be working to and an 18-month-old child. It was later of our police officers by making it far more make the job of a police officer more safe— discovered that this killer had quali- difficult to distinguish between legal and il- not less. fied and been issued a concealed weap- legal firearm possession. We urge every member of Congress who re- The Mayors Against Illegal Guns coalition spects the prerogatives of local law enforce- ons permit from the Coffee County has long believed that the issue of concealed ment, wishes to shield communities from sheriff’s department. carry regulation is one best left to cities and gun trafficking, and strives to protect our A few weeks after Mr. Mclendon’s states. Our coalition believes that what state nation’s police officers to take immediate murderous rampage in Alabama, there officials, law enforcement and legislators de- action to oppose and vote against this legis- was a premeditated shooting spree in cide are the best policies for rural areas may lation. upstate New York. The gunman drove not be the best for big cities—and vice-versa. Sincerely, his car up to a citizenship services cen- It is very common for states to set stand- THOMAS M. MENINO, ards for carrying guns on city streets that go ter in Binghamton, NY, barricaded the Mayor of Boston, Coa- backdoor with his car, and then burst beyond simply whether an applicant is able lition Co-Chair. through the front entrance with two to pass a federal background check. Many MICHAEL R. BLOOMBERG, states, including those with strong gun Mayor of New York handguns and a bag full of ammuni- rights traditions, have enacted common City, Coalition Co- tion. In what would become the worst sense concealed carry laws that prohibit car- Chair. mass shooting since the tragic assault rying by persons regarded as unusually dan- Mr. LAUTENBERG. As the mayors at Virginia Tech, the assailant opened gerous and criminals convicted of certain fire, killing one receptionist and misdemeanors, or that require safety train- make clear, the Thune amendment sav- ages the rights of States to enact their wounding another. ing for anyone who wants to carry concealed He then entered a classroom where firearms. For example: own laws. Unfortunately, this dan- he sprayed gunfire, killing 12 more in- At least 31 states prohibit alcohol abusers gerous amendment doesn’t end there. nocent people and wounding 7 others. from obtaining a concealed carry permit, in- It would unleash total havoc by sud- The gunman then committed suicide. cluding South Carolina, which prevents ‘‘ha- denly letting dangerous and unstable bitual drunkards’’ from carrying guns. The killer was no stranger to guns. He people carry weapons into other States At least 35 states prohibit persons con- was a firearms enthusiast and even and across State lines. Supporters of victed of certain misdemeanor crimes from though he had been convicted of a mis- this amendment claim that only ‘‘law- carrying concealed firearms, including Penn- demeanor, he held a license to carry sylvania, which bars carrying by those who abiding citizens’’ get their hands on have been convicted of impersonating a law concealed weapons. concealed weapons permits. That is not The day after the city of Binghamton enforcement officer and other misdemeanor true. Over the 2-year period from May offenses. was terrorized by a gunman, two police At least 31 states require the completion of 2007 to April 2009, concealed carry per- officers arrived at a house in Pitts- a gun safety program prior to the issuance of mit holders killed seven law enforce- burgh to quell a domestic conflict be- a permit, including Nevada, which requires a ment officers with guns. In fact, the tween a man and his mother. When the 40-question written exam and live fire train- Florida Sun Sentinel did an investiga- two officers entered, they were am- ing from three different positions with a cer- tion of concealed carry permit holders bushed and killed. The assailant was tified instructor as components of their re- in Florida and found that Florida carrying three firearms and wearing a quired gun safety course. granted concealed carry weapons to bulletproof vest and murdered the po- This legislation would eviscerate all of more than 1,400 people who pled guilty these standards, moving concealed carry per- licemen with an AK–47. mitting to a new national lowest common or no contest to a felony; 216 people Minutes later, the gunman shot and denominator. with outstanding warrants were al- killed a third officer who arrived at the Each state ought to have the ability to de- lowed to carry a gun; 120 people with scene. The attacker held the police at cide whether to accept concealed carry per- active domestic violence injunctions; bay for 4 hours before surrendering. It mits issued in other states. 9 states have and 6 registered sex offenders. was later learned the killer had been chosen to allow concealed carrying by all I worked very hard some years ago— arrested for domestic abuse against his out-of-state permit holders. However, 12 going back to 1996—to get a rule on states choose not to recognize any out-of- girlfriend but held a concealed weapons state permits. And 29 states recognize per- issuing guns that would say to those permit. mits only from selected states—typically convicted of misdemeanor spousal We have to face up to this. This from states with equivalent or higher stand- abuse should be unable to get guns. It amendment would let more brutal peo- ards. Any of these options should be avail- was scoffed at by some who were here ple carry concealed weapons legally—

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.030 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7691 and not just in their own town or in (See exhibit 1.) about what is in the public interest to their own State but in other States and Mr. LAUTENBERG. It is no wonder the gun lobby and the politicians here across State lines. that when police departments are in in town—lobbyists in many cases. This amendment would also open the charge of issuing concealed weapons The Thune amendment poses extreme floodgates for gun trafficking. A gun permits, they are very conservative danger to our country, and it blatantly dealer who sells firearms to criminals about whom they allow to have these nullifies State laws and State rights in would be free to travel across the coun- permits. Nevertheless, the amendment favor of a radical agenda. I strongly try with a car full of loaded weapons as from Senator THUNE would defer to the urge my colleagues to vote no on the long as the driver had a concealed weakest—think this through—would Thune amendment. weapons permit from some other State. defer to the weakest concealed permit I recently was traveling with my wife The fact is, if the police were to dis- laws. So now untrained, amateur gun out West, and we were interested in cover the pile of guns in the traf- owners will be free to carry a hidden seeing a particular baseball team play. ficker’s trunk, the police could do firearm in other States and across We know the owners of the team. The nothing about it. State lines. hotel had a gun show. The prospect of this scenario is no Do we want to completely disregard By the way, I carried a gun. It was exaggeration. Last year, a report State law enforcement officers’ deci- not concealed. I did it in a uniform dur- showed that one-third of firearms sold sions or do we want criminals wan- ing a war, and I loved that weapon. But on the black market came from States dering our streets with pistols in their it had a mission. It had a mission to with weak gun safety laws. The Thune backpacks or carrying them on their kill somebody else before they killed amendment would simply exacerbate sides or do we want unstable drivers me. That is not what we typically see this problem and make it easier for gun stuck in rush hour with guns in the with concealed weapons. traffickers to supply known crimi- front seats of their cars? I do not. In this case, we were at this hotel nals—including terrorists—with weap- These are critical questions, and they gun show, and people were buying am- ons. should not be resolved by an amend- munition for their purpose. There was The scourge of gun violence and gun ment tacked onto a Defense authoriza- lots of activity. Lots of ammunition deaths is a menace this Chamber must tion bill—defense. We have our sol- was being put in the back of cars. The take seriously. Think about it. All of diers, and the toll keeps rising in Af- State, though, in that case permitted us here represent a State—all of us, ghanistan. By no means is Iraq a safe it. There could not be any objection. two per State—and we are being told place to be. They should not have to be The State decided what was best for its by one of our Members that what we further jeopardized or have their citizens and its communities, and they ought to do is let the Federal Govern- health threatened. We see what condi- did just that. I do not agree with that, ment decide how we care for our peo- tions are like. We see the reports from but I cannot object. If that State wants ple: decide, the Federal Government, the war front. This bill ought to be to do it that way, they are entitled to how safe our streets ought to be; de- moved along just on the Defense au- do it that way, and who am I, from the cide, the Federal Government, to ig- thorization. State of New Jersey, to tell them how nore or obviate laws we have on our On Thursday, the Judiciary Com- they should conduct themselves in books, and say: We are going to over- mittee is going to hold hearings on those moments? I have no right to do ride your books. We know best what is Senator THUNE’s proposal. That hear- that. good for you. ing will give everyone a fair oppor- So here we are. We are faced with an Well, those in other States—whether tunity to get all the facts, hear from amendment that says nobody in the Illinois or San Francisco, CA, or Hous- both sides of the issue, and learn from State knows what is better for their ton, TX—do not know better about the testimony of experts. The hearing people than does the gun lobby, the what we ought to do in New Jersey will include law enforcement officers NRA, the gun manufacturers. We dis- than we do about them, and we should testifying against this legislation. agree with that, and I hope we will not allow this to take place. They deserve to have their voices show the American people we care Just look at the toll gun violence heard. We should not shortcut the leg- enough about them and respect their takes on our most innocent and de- islative process and the vital work of intelligence—respect the fact they fenseless in our country. Every single the Judiciary Committee. have their own structure in their day, 8 children die because of gun vio- Before I close, I wish to make one States to take care of their needs as lence, while another 48 kids are shot. thing crystal clear: This amendment they see them. We do not want to see They, however, manage to survive has nothing to do with individuals’ intruders carrying guns coming into their gun injuries. Think about it: over rights to protect themselves in their those States—not mine, not yours, not 50 kids shot each and every day. It is a own homes. A concealed weapons per- anybody’s—who do not pass the test tragedy in America. mit is a separate and special privilege that is required within that State’s ju- The Thune amendment would place that lets gun owners hide their fire- risdiction before they go around town our communities in danger in further arms in a jacket or a bag as they travel with their weapons. danger than we already have. That is in the community and go out in public. EXHIBIT 1 why law enforcement leaders—the very Whether they are riding in a bus or a INTERNATIONAL ASSOCIATION people who put their lives on the line car or walking down the street, they OF CHIEFS OF POLICE, to combat criminals and keep families can have that weapon. Alexandria, VA, July 17, 2009. safe—are against the Thune amend- Why in our world is it necessary to Hon. HARRY REID, ment. I have a letter from the Inter- make sure those who want to carry a Majority Leader, U.S. Senate, national Association of Chiefs of Police concealed weapon can go anyplace they Washington, DC. opposing this amendment. As the letter want with this weapon? You know DEAR MAJORITY LEADER REID: On behalf of explains, the police chiefs urge Con- what happens. We read about fights oc- the International Association of Chiefs of curring in cafes all the time. To just Police (IACP), I am writing to express our gress to ‘‘act quickly and take all nec- strong opposition to S. 845, the Respecting essary steps to defeat this dangerous allow people to come in there with States Rights and Concealed Carry Reci- and unacceptable legislation.’’ The As- weapons and see what happens after al- procity Act of 2009. This bill would weaken sociation of Chiefs of Police—if any- cohol or too much celebration? Bad existing state laws by allowing an individual body ought to know what is good for idea, and we should not allow it. to carry concealed firearms when visiting their communities, it should be the States and local communities must another state or the District of Columbia as chiefs of police. be allowed to choose who has earned long as the individual was entitled to carry Madam President, I ask unanimous this privilege, based on what is in the concealed firearms pursuant to the laws of best interest of that particular State his or her home state. consent that this letter be printed in It is the IACP’s belief that S. 845 would se- the RECORD directly following my re- or community. Unfortunately, this verely undermine state concealed carry li- marks. amendment takes the power away from censing systems by allowing out of state The PRESIDING OFFICER. Without the local community, away from the visitors to carry concealed firearms even if objection, it is so ordered. State capitals, and leaves the decision those visitors have not met the standards for

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.034 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7692 CONGRESSIONAL RECORD — SENATE July 20, 2009 carrying a concealed weapon in the state the country have. What my amend- tailored to allow individuals to protect they are visiting. For example, some states ment simply does is it allows those themselves while at the same time re- require a person to show that they know how who have concealed carry permits in specting States rights. So individual to use a firearm or meet minimum training their own States to be able to move States can continue to enact restric- standards before obtaining a concealed carry across State lines to other States that tions on that, and every State has license. These states would be forced to allow out of state visitors to carry concealed also allow concealed carry permits. Ob- those. They may be place restrictions, weapons even if they do not meet that viously, they also have to respect the and I think most States—I know my state’s concealed licensing standards. laws of those individual States if there State of South Dakota has restrictions It is the IACP’s belief that states and lo- are restrictions on the exercise of that regarding courthouses, schools, and calities should have the right to determine right. those sorts of places where there are who is eligible to carry firearms in their I think it is important in the debate restrictions against concealed carry. communities. It is essential that state, local over hate crimes to point out that the Many States have those types of laws and tribal governments maintain the ability victims of those crimes ought to have which would apply to anyone who has a to legislate concealed carry laws that best at their disposal as many ways of de- concealed carry permit in their own fit the needs of their communities—private citizens as well as active and former law en- fending themselves as is possible. State of residence and moves into an- forcement personnel. Frankly, there are lots of organiza- other State that also has a concealed The IACP urges you to act quickly and tions that have come out in support of carry permit law. So they would have take all necessary steps to defeat this dan- this amendment for that reason, be- to live under the laws of those States. gerous and unacceptable legislation. cause they believe if you want to pre- So I want to make very clear what the Thank you for your attention to this mat- vent those types of violent crimes, amendment does and doesn’t do. ter. Please let me know how we can be of as- those types of hate crimes from being I have heard it said here that some- sistance. committed in this country, one way to how this is going to be used to cir- Sincerely, cumvent or to preempt State laws. RUSSELL B. LAINE, do that is to allow individuals who are President. the potential victims of those types of That certainly is not the case. But it does get at the heart of what is a con- Mr. LAUTENBERG. Madam Presi- crimes to be able to have a concealed stitutional right in this country. The dent, I suggest the absence of a carry permit in order to deter a crime second amendment of the Constitution quorum. from being committed. allows people to keep and bear arms. The PRESIDING OFFICER. The It is also important to point out that That is a constitutional right, and it clerk will call the roll. there are a number of arguments that The assistant legislative clerk pro- have been raised against this amend- should not be infringed upon. Like I ceeded to call the roll. ment which just, frankly, are not true. said before, an individual State can Mr. THUNE. Madam President, I ask First of all, my amendment does not enact statutes that impose restrictions unanimous consent that the order for create a national concealed carry per- on that. That is something most States the quorum call be rescinded. mit system or standard. My amend- have, and every State treats the situa- The PRESIDING OFFICER. Without ment does not allow individuals to con- tion a little differently. But an indi- objection, it is so ordered. ceal and carry within States that do vidual should be able to exercise their not allow their own citizens to do so. second amendment constitutional right AMENDMENT NO. 1618 My amendment does not allow citizens Mr. THUNE. Madam President, the and be able to travel through indi- to circumvent their home State’s con- vidual States as long as they live by business pending before the Senate is cealed carry permit laws. If an indi- the laws of those States. the amendment I have offered to the vidual is currently prohibited from pos- So that is essentially what the Defense authorization bill. I think it is sessing a firearm under Federal law, amendment does. It is very simple, close to nearing an agreement with my amendment would continue to pro- very straightforward, and not particu- both sides about a process for pro- hibit them from doing so. When an in- larly complicated, as I said. It cer- ceeding to have debate on this amend- dividual with a valid concealed carry tainly doesn’t do many of the things ment and then perhaps, hopefully, a permit from their home State travels that have been proposed here on the vote sometime as early as Wednesday to a State that allows their citizens to floor that it does. So I thought it was of this week. conceal and carry, the visitor must important to set the record straight. I think it is important to note for the comply with the restrictions of the Obviously, we will have a debate record—because many have already or State they are in. about this in the next couple of days. I some at least have come down already It has been suggested that somehow think we will probably have a debate and spoken on this amendment—that I this preempts State laws. That is not on the defense amendment here first, had hoped to offer this amendment as a the case. The restrictions an individual and then we will get to this particular second-degree amendment to the hate State imposes upon concealed carry issue. But I hope my colleagues, as crimes amendment that has been on laws that have been enacted by that they listen to that debate, will do their the floor now for the past week. The State must be followed by any indi- best to ferret out and to differentiate Defense authorization bill was brought vidual who has a concealed carry per- facts from myth and facts from fiction up early last week. Immediately, this mit in their own State. In other words, because there are a lot of statements hate crimes amendment was offered. It the individual who travels to that that are being made that are not con- is a nongermane amendment. It is not State will be required to live under the sistent with the facts, and the facts on relevant, obviously, to the underlying laws that are on the books in that this are very clear. content of the bill. State. So I look forward to having the op- The Defense bill sets priorities for But it does get at an issue which I portunity to make that case and to our national security interests for the think many have raised regarding peo- have this issue debated. As I said be- coming year. Yet the Democratic lead- ple who travel across State lines all fore, I had hoped to be able to offer this ership chose to make the hate crimes the time—truckdrivers, for instance, as a second-degree amendment to the amendment the first amendment to be who on any given day take a cargo load hate crimes amendment because I debated and voted upon. When they did from one State across several States in think it fits very nicely there. As I said that, it had been my intention to offer this country and want to be able to before, it ties in to the overall theme of as a second-degree amendment the con- protect themselves as they do so. In protecting potential victims from hate cealed carry amendment, which is now many cases, they stay overnight in crimes by allowing them to have a de- the pending amendment before the truckstops or pull over for a nap some- terrent. Obviously, a concealed carry Senate. It makes sense in a lot of ways, where. Being able to possess a firearm permit acts as a deterrent and has been to me, to do that simply because one of that would enable them to have some proven over time, both in terms of the the best ways to help prevent hate level of self-protection and to deter data you look at as well as a lot of an- crimes against potential victims of crimes from being committed makes a ecdotal examples, to have the desired hate crimes is to allow them to defend lot of sense. effect, which is to prevent many of themselves. The concealed carry per- So the amendment is very straight- these crimes from occurring in the first mit is something most States across forward and very simple. It is simply place.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A20JY6.014 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7693 Because the Democratic leadership of S. 1390 and the Thune amendment The proposed hate crimes legislation, filled the tree—in other words, pre- No. 1618, with the time until 12 noon which is being touted as a response to mur- cluded or prevented my offering a sec- for debate with respect to amendment ders, should not have been treated as a mere photo opportunity. It is real legislation with ond-degree amendment to the hate No. 1618, and the time equally divided real world consequences—and not all of them crimes amendment—we are now offer- and controlled between Senators are good. A close examination of its con- ing it as a first-degree amendment and THUNE and DURBIN or their designees, sequences, especially its consequences for understand completely the importance with no amendments in order to the federalism and double jeopardy protections, of moving the Defense bill forward. So Thune amendment during its pendency; is therefore in order. I think, on Wednesday, after we have that adoption of the Thune amendment Given the many civil liberties issues that would raise, including the routine potential had a certain amount of time to de- requires an affirmative 60-vote thresh- for double jeopardy prosecutions, this is a bate, we will bring it to a vote, and I old; further, that if the amendment step that members of the Senate should hope my colleagues would support this. achieves that threshold, then it be think twice before they take. I think it is an amendment that has agreed to and the motion to reconsider Bob Knight, a senior fellow—I guess I broad bipartisan support. I already be laid upon the table; that if it does am going to show some members, lib- have 22 or 23 cosponsors on this amend- not achieve that threshold, then it be eral lawyers and conservative advo- ment from both sides of the aisle, and withdrawn; that at 12 noon, the Senate cates, also sharing concern over this I hope that number grows because it is proceed to vote in relation to the legislation. I hope my colleagues have common sense. It has been very effec- amendment. not treated these concerns too lightly. tive in many States across the coun- The PRESIDING OFFICER. Is there It is hard to vote against legislation try. objection? that purports to fight hate. You do not We want to use as many tools as we Without objection, it is so ordered. want to be somebody defending hate can to deter crime, particularly violent Mr. REID. Madam President, for the crimes. I certainly do not. Neither do crimes that are committed against in- information of the Senate, on Tuesday these good people who have expressed dividuals in this country. It seems to the Senate will convene at 10 a.m.; their concern. me it makes sense in having a con- therefore, the vote on the Levin- Bob Knight, a senior fellow at the cealed carry permit law that allows an McCain amendment is expected to American Civil Rights Union, said this: individual who has a valid concealed occur around 12 noon. That is expected The proposed law, whatever its sponsors’ carry permit in their individual State to be the first vote of the day. good intentions, is a grave threat to the con- of residence an opportunity to move Mr. SESSIONS. Madam President, we stitutional guarantee of equal protection under the law. America’s legal heritage of freely across this country and to have have been busy in the Judiciary Com- mittee with the Sotomayor hearing. I judging actions rather than thoughts or be- that constitutional right protected. liefs, and it will politicize law enforcement With that, Madam President, I yield have not been able to participate in the by making some crime victims’ cases more the balance of my time and look for- debate over the hate crimes legisla- important than others. ward in the next day or two, as this tion. I want to follow up a little bit Beyond the obvious unfairness of excluding issue is debated further, to having a more on what I said earlier today. I some groups from enhanced protections, discussion with my colleagues here in have an obligation to assert a principle such as the elderly, homeless, veterans and children— the Senate in hopes that we can get that I think is important in Federal this amendment enacted on this bill. criminal law. They are not given enhanced protec- So I hope my colleagues will vote for it I was a Federal prosecutor for 15 tions of the hate crimes bill— when the time comes. years and was very familiar with the the proposed law advances an underlying am- The PRESIDING OFFICER. The Sen- jurisdiction issues that are involved in bitious agenda to punish individuals and groups that hold traditional values. ator from Alabama. Federal criminal law. We need to do Mr. SESSIONS. Madam President, I this right. I do not think we have done This law: just want to say how much I appreciate that right. . . . lays the groundwork for the concept of the Senator’s efforts. It is consistent The bill has basically been made a ‘‘thought crime,’’ in which someone’s views or beliefs are criminalized. Violent acts are with the retired law enforcement offi- part of this Defense bill already, so in one sense I guess the die is cast, but I already illegal and punished under criminal cers bill we passed, as I recall, not long law. This law adds penalties based on ago that allowed them to carry their will share a few thoughts. thought. In order to prove that the defendant weapons in other States under certain To repeat briefly, I will quote from holds particular beliefs that motivated a circumstances. When people are trav- the letter from six, I believe, of the criminal act, his or her speech, writing, read- eling, they many times feel more vul- eight members of the U.S. Commission ing materials and organizational member- nerable and they feel a greater need to on Civil Rights that was received June ships would become key evidence. protect themselves. 16, was sent to the President and mem- Brian Walsh, a senior fellow at the I think it is a sound and reasonable bers of the Judiciary Committee. They conservative Heritage Foundation, approach—limited but important—and said: says this: I thank Senator THUNE for offering We believe the MSHCPA— The criminal justice system is in great that amendment. That is the so-called hate crimes leg- need of principled reform . . . this reform The PRESIDING OFFICER. The ma- islation, this is their opinion, six of the should not be driven by some partisan poli- tics. Unfortunately, the HCPA fails to meas- jority leader. eight members— ure up to this standard and would substan- Mr. REID. Madam President, not- will do little good and a great deal of harm. tially undermine constitutional federalism withstanding the order of July 16, 2009, Provisions in the bill ‘‘are very much a vio- and the high regard in which the American I ask unanimous consent that the lation of the spirit that drove the framers of public should hold Federal criminal law. Levin-McCain F–22 amendment be con- the Bill of Rights, who never dreamed that The three main problems with this federal criminal jurisdiction would be ex- sidered on Tuesday, July 21, beginning amendment are that: immediately after the opening of the panded to the point where an astonishing proportion of crimes are now both state and . . . the Act’s new ‘‘hate crimes’’ offenses are Senate on that day and extending for federal offenses. We regard the broad fed- far broader and more amorphous than any up to 2 hours, and the vote on the eralization of crime as a menace to civil lib- properly defined criminal offense should be— amendment occur upon the use or erties. There is no better place to draw the I agree with that, parenthetically. He yielding back of time, as provided for line on that process than with a bill that goes on to say: under the previous order which estab- purports to protect civil rights. —and they thus invite prosecutorial abuse, lished the parameters of considering In other words, this is an official politically motivated prosecutions, and re- the amendment, with the other provi- commission of the U.S. Government, lated injustices. The Act’s ‘‘hate crimes’’ of- sions of the July 16 order governing appointed by Presidents, and that is fenses violate constitutional federalism by consideration of the Levin-McCain F–22 what they sent to us. asserting Federal law-enforcement power to police truly local conduct over which the amendment remaining in effect; fur- Gail Heriot, who is a member of the Constitution has reserved sole authority to ther, that on Wednesday, July 22, at commission, testified at our judiciary the 50 states. The Act’s ‘‘hate crimes’’ of- 9:30 a.m., after opening of the Senate, hearing a couple of weeks ago. She tes- fenses would be counterproductive, for near- the Senate then resume consideration tified that: ly all States have—tough ‘‘hate crimes’’ laws

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.036 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7694 CONGRESSIONAL RECORD — SENATE July 20, 2009 and the violent conduct underlying the Act’s Shepard, a gay man brutally killed in Wyo- tian counselors, religious broadcasters, and ‘‘hate crimes’’ offenses has always been ming, has provided one of the rallying cries anyone else whose actions are based upon criminalized in all 50 states. for passage of this legislation. His killers and reflect the truths found in the Bible, Nat Hentoff is a famous civil rights both received two consecutive life sentences which have been protected by the first and libertarian attorney, a writer well from a state court. James Byrd, Jr., the Afri- amendment. can-American man dragged to death behind a That is not accurate? Well, they are known in the country as being a pas- truck in Texas, is cited as another reason to sionate advocate for civil liberties concerned about that. And they object pass the law. His killers received death sen- to the legislation. from an objective, I would say, point of tences or life imprisonment. view. He has respect from both con- The federal government would also be au- The Concerned Women for America servatives and liberals, but I guess his thorized to prosecute whenever ‘‘the verdict note that: background has mostly been on a more or sentence obtained pursuant to State The legislation would violate genuine con- liberal approach to law. charges left demonstratively unvindicated stitutional rights in an attempt to address a He starts off saying: the Federal interest in eradicating bias-re- nonissue, create a caste system of victims, lated violence.’’ While this doesn’t violate violate the spirit of the Double Jeopardy Why is the press remaining mostly silent the letter of the Supreme Court’s double Clause of the Constitution, and unintention- about the so-called ‘‘hate crimes law’’ that jeopardy jurisprudence—the federal and ally extend privileges to individuals who en- passed the House on April 29? The Local Law state governments are considered separate gage in illegal sexual acts even against chil- Enforcement Hate Crime Prevention Act sovereigns—it certainly violates its spirit. dren. passed in a 249–175 vote—17 Republicans I would share those thoughts and say joined with 231 Democrats. These Democrats The National Religious Broadcasters should have been tested on their knowledge write they are opposed to the concept that this is why this legislation has of the First Amendment, equal protection of as well as the current legislative per- been controversial. The predicate for the laws . . . and the prohibition of double mutations of the so-called ‘‘hate this legislation is the interstate com- jeopardy. . . . No American can be pros- crimes.’’ This legislation takes any merce tag that is very weak. The Su- ecuted twice for the same crime or offense. If conduct that is viewed as a threat to preme Court has already found several they had been, they would have known that homosexuals or bisexuals or a threat to Federal statues do not have sufficient this proposal, now headed for a Senate vote— persons who want to immunize their interstate nexus to justify prosecuting violates all these constitutional provisions. This bill would make it a federal crime to religion from public debate and turns a crime in Federal court. willfully cause bodily injury—or try to—be- that threat or perceived threat into a I would say if a few people walk out cause of the victim’s actual or perceived species of criminal felony. As a con- in the pasture and one finds a rock and ‘‘race, color, religion, national origin, gen- sequence, this legislation will inevi- murders a person, as a Federal pros- der, sexual orientation, gender identity or tably stifle the free exercise of religion ecutor for 15 years I will tell you, there disability’’—as explained on the White House and freedom of speech, and brings with is no jurisdiction federally to try and Web Site, signaling the president’s approval. it the very real likelihood of abusive prosecute that case. It is a criminal A defendant convicted on these grounds prosecutions. Federal ‘‘hate crimes’’ case in the State court only. And to would be charged with a ‘‘hate crime’’ in ad- make it a Federal case, you have to dition to the original crime and would get laws also ignore the fact that the un- extra prison time. derlying core offense, the causing of have some sort of peg to hang your hat The extra punishment applies only to these bodily injury to another, is already on, so to speak. ‘‘protected classes.’’ criminalized in all 50 states. In that case, I do not think there is He quotes a Denver, CO criminal de- The Research Council says this: any. But if you are on a railroad train fense lawyer: Hate crimes laws force the courts to guess and you are traveling and you are in interstate commerce, you murder As Denver criminal defense lawyer Robert the thoughts and beliefs which lie behind a J. Corry Jr. asked . . . ‘‘Isn’t every criminal crime, instead of looking at the crime itself. someone, that can be a Federal crime. act that harms a person a hate crime?’’ The Family Research Council be- If you steal from an interstate ship- Then, regarding a Colorado ‘‘hate crime’’ lieves that all crimes should be pros- ment, that can be a Federal crime. If law, one of 45 such state laws, Corry wrote: ecuted to the fullest extent of the law, you murder a postman, that is a Fed- ‘‘When a Colorado gang engaged in an ini- and that every violent crime has some eral crime—or a Federal civil servant, tiation ritual specifically seeking out a form of hate behind it. All around the and so forth. Those are Federal crimes. ‘white woman’ to rape, the Boulder pros- But normal murder, rape, robbery, ecutor declined to pursue ‘‘hate crime’’ country, crimes are being prosecuted in charges. She was not enough of one of its the State justice systems. American theft, that occur by the tens of thou- protected classes.’’ justice is being done. There is simply sands every day all over America are Corry adds that the State ‘‘hate crime’’ no need for a Federal hate crimes law. not Federal crimes. They are not pros- law—like the newly expanded House of Rep- Violent attacks upon people or prop- ecutable in Federal court. resentatives Federal bill—‘‘does not apply erty are already illegal, regardless of The very small number of FBI equally,’’ as the 14th amendment requires, the motive behind them. With hate agents, compared to the massive num- essentially instead: crime laws, however, people are essen- bers of police and sheriffs, deputies, ‘‘Criminalizing only politically incorrect and State law enforcement officers is thoughts directed against politically incor- tially given one penalty for the action rect victim categories.’’ they engage in and an additional pen- such that there is no way they can ever alty for the particular and highly se- begin to prosecute or investigate these Hentoff concluded: crimes. They have to focus on those Whether you’re Republican or Democrat, lective attitudes and thoughts that motivated these actions. crimes that are uniquely Federal, vin- think hard about what Corry adds: dicate a uniquely Federal interest. ‘‘A government powerful enough to pick Motive-based analysis and intent- and choose which thoughts to prosecute is a based analysis are not the same thing. With regard to the Civil Rights Act government too powerful.’’ For example, with the crime of man- that was passed in the 1960s, it has David Rittgers of the CATO Insti- slaughter, intent-based analysis looks some similarities, although it is more tute, a libertarian group, said this: at whether the perpetrator intended tightly written. the result. Hate crime legislation takes I will conclude with these thoughts: The Federal hate crimes being considered There was a demonstrable record of in the Senate undermines the rule of law and into account what the offender thinks, shows casual disregard, if not outright hos- feels, or believes about the victim re- failure to prosecute violations of civil tility, for the principles of limited govern- gardless of whether the perpetrator in- rights against African Americans in ment and equality under the law. The bill tended the result. This is why hate the South, sad to say, and in other Federalizes violent acts against victims by crimes may be referred to as ‘‘thought places in this country. It appeared that reason of their actual or perceived race, crimes.’’ local law enforcement was ineffective, color, religion, national origin, gender, sex- sometimes unwilling, to vindicate ual orientation, gender identity or dis- The Traditional Values Coalition says: those rights, and so the Civil Rights ability. Act said: If you are going to school or Never mind that these acts are already The so-called hate crimes bill will be used prosecuted by the states—45 of which have to lay the legal foundation and framework to a legal activity at the city or county or their own hate crime laws—and that violent investigate and prosecute and persecute pas- Federal Government or voting and you crimes of this nature are universally per- tors, business owners, Bible teachers, Sun- are interfered with, that can be a Fed- ceived as an affront to justice. Matthew day School teachers, youth leaders, Chris- eral offense.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.039 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE July 20, 2009 CONGRESSIONAL RECORD — SENATE S7695 There was a clear record to justify years about this, before she was on the we vote on several additional related the need for Federal involvement in Commission, and they refused to nar- amendments from Senator SESSIONS. those cases. And most of those cases, I row the language because they wanted Senator SESSIONS proposed an think virtually all, have been upheld as that broader language. amendment creating a new criminal being sufficiently tied to interstate I think that is too broad. This bill is statute for attacks against U.S. serv- commerce to be a legitimate Federal too amorphous and too broad and icemembers. While servicemembers are crime to prosecute. should not become law. already appropriately covered by We asked the Attorney General at a I yield the floor and I suggest the ab- strong legal protections, I agree with hearing recently, can he name any sence of a quorum. the purpose of this amendment, and I cases? He did not name a single one. The PRESIDING OFFICER. The appreciate Senator SESSIONS’ willing- But he said in his statement there were clerk will call the roll. ness to work with us to improve it. I four. After the hearing we submitted The legislative clerk proceeded to will support this amendment. questions to the Attorney General: Did call the roll. Senator SESSIONS was also willing to he have any cases to show that these Mrs. HAGAN. I ask unanimous con- work with us on another amendment of prosecutions are not being effectively sent that the order for the quorum call his which would require that all hate prosecuted locally? be rescinded. crimes prosecutions be undertaken pur- He stood by the four. That is all we The PRESIDING OFFICER (Mr. suant to guidelines promulgated by the ever got over a period, I think, of 5 MERKLEY). Without objection, it is so Attorney General. With the improve- years. At least that is what I asked ordered. ments that we worked out, I am happy him for. And the four cases were very Mrs. HAGAN. I ask unanimous con- to support this amendment as well. insubstantial. In each one of the four sent to speak as in morning business. Finally, Senator SESSIONS proposed cases prosecutions were initiated. I The PRESIDING OFFICER. Without an amendment to apply the death pen- think in all but one convictions were objection, it is so ordered. alty to a broad swath of hate crimes. obtained. (The remarks of Mrs. HAGAN per- This amendment, as offered, would Some people were not happy with the taining to the introduction of S. 1473 have applied the death penalty even to results of the case, and they would are located in today’s RECORD under cases involving offenses like attempted have liked the Federal Government to ‘‘Statements on Introduced Bills and kidnapping where there was no intent take it over and prosecute it again. But Joint Resolutions.’’) to kill any person. Such a broad appli- as I said, there are tens of thousands of Mr. LEAHY. Mr. President, it re- cation would have clearly violated the cases prosecuted every day, and many flects well upon this body that the Sen- Constitution as set out in ruling Su- victims in those cases felt that the out- ate late last week voted to include the preme Court precedent. come of the case was not sufficient. Matthew Shepard Hate Crimes Preven- With regard to the death penalty, the They would like also for the Federal tion Act of 2009 as an amendment to Supreme Court recently held that, ‘‘As Government to prosecute it again. But the Defense authorization bill with a it relates to crimes against individuals, they might not have been in these strong bipartisan vote. This important . . . the death penalty should not be ex- ‘‘special classes’’ that got this ‘‘special legislation has also passed the Senate panded to instances where the victim’s benefit’’ in this bill. in 2007, 2004, 2000, and 1999. I am hopeful Do you see then what it is all about? life was not taken.’’ and optimistic that this time it will Whether or not Senators agree with It is basically saying that the Federal make it to the President’s desk and be Government sits up and hovers above that sentiment, we should not purpose- signed into law. the criminal justice system, and it can fully pass legislation that we know to This legislation will help to address be unconstitutional. As a result of my decide whenever, based on the length of the serious and growing problem of the chancellor’s foot, I suppose, when a criticism, I understand that Senator hate crimes. The recent tragic events case has not effectively resulted in jus- SESSIONS will be modifying his amend- at the Holocaust Museum, on top of tice. ment, and I appreciate that. They said in their answer, they want many other recent hateful and dev- Adding an expansive death penalty to make sure that there is justice astating acts, have made clear that provision to hate crime statutes would every time. That is a pretty high goal, these vicious crimes continue to haunt also add new costs to enforcement I have got to tell you, especially when our country. This bipartisan bill is since death penalty cases are consist- people might not agree. Juries make carefully designed to help law enforce- ently far more expensive and difficult decisions. I hope we in this Congress ment most effectively respond to this for the government to litigate. Those will understand the huge responsibility problem. It has been stalled for far too increased costs could reduce the num- we have to the historic concept that long. The Senate’s action last week ber of important hate crime investiga- crimes of a local nature should be pros- was the right step and long overdue. tions and prosecutions the government ecuted locally, and that the Federal I thank Senator COLLINS, Senator could conduct. Government does not need to be in- SNOWE, and the other bipartisan co- We should be facilitating more hate volved in everything to try to ensure sponsors for their support. I particu- crime investigations and prosecutions, perfect justice. larly thank Senator TED KENNEDY, for not restricting the number the govern- Indeed, it is not involved in every whom this important civil rights meas- ment can bring. I should also note that case and it never has been. It should ure has long been a priority, and I com- many proponents of hate crimes legis- not be. I wanted to make these quotes mend him for his steadfast leadership lation, particularly in the House, as a part of the RECORD, and call on the over the last decade in working to ex- well as other influential House Mem- Members of the Senate as we go for- pand our Federal hate crimes laws. bers, strongly oppose the death pen- ward in the future to make sure that I wish he could have been here for the alty. the legislation we pass is consistent vote on Thursday, but I know he was The Leadership Conference on Civil with our heritage, which understands proud of what the Senate did. I thank Rights has written us to oppose this that the Federal Government does not the many staff members who helped death penalty amendment, and I know have a general criminal power, has with this effort—Roscoe Jones, Joe several of my fellow Senators share my only narrow limited enumerated power Thomas, Elise Burditt, Leila George- concerns with this amendment. to make crimes Federal, and we ought Wheeler, Matt Smith, Noah Book- Senator KENNEDY has proposed a fur- not overreach and create a situation in binder, Kristine Lucius, and Bruce ther amendment which would add im- which, according to the U.S. Civil Cohen on my staff—as well as the staff portant guidelines about when the Rights Commission in their letter to for Senator KENNEDY—Christine Leon- death penalty could be used. I support us: Every single rape would be a Fed- ard and Ty Cobb—who worked so hard this commonsense measure. eral crime because the action would on this legislation. I hope all Senators will join me in have been carried out as a result of the I appreciate that Republicans were doing everything we can to ensure that gender of the person being assaulted. willing to come to an agreement to let effective, meaningful hate crimes legis- Ms. Heriot said she had talked with this hate crimes amendment move for- lation can be signed into law this sum- the Department of Justice in previous ward. As part of that agreement, today mer.

VerDate Nov 24 2008 01:44 Jul 21, 2009 Jkt 079060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G20JY6.041 S20JYPT1 jbell on DSKDVH8Z91PROD with SENATE S7696 CONGRESSIONAL RECORD — SENATE July 20, 2009 Mr. NELSON of Nebraska. Mr. Presi- it could, a chief of police or local sher- vide our non-federal partners with technical, dent, I come to the floor to express my iff would have to decide, in conjunction forensic, prosecutorial, and financial assist- disappointment that the Senate failed with the county attorney or district ance to bolster their hate crimes enforce- to take advantage of an opportunity to attorney, that it was in their best in- ment efforts. Second, it will eliminate the antiquated and burdensome requirement debunk a false argument against the terest and the best interest of the com- under existing Federal law that prosecutors Matthew Shephard Hate Crimes Pre- munity to bring such a prosecution, in prove that a hate crime was motivated by a vention Act. If it were up to me, the contravention of existing Federal laws victim’s participation in one of six enumer- debate never would have gone in this that protect children from predators. ated federally protected activities. Third, it direction, but since it has I have tried Federal law enforcement, which serves will expand coverage beyond violent acts to do my best to address the concern— as a backstop to local efforts under motivated by actual or perceived race, color, though I believe it to be unfounded— this bill, would also not use the law in religion, or national origin to those moti- that this legislation protects this way because the Department of vated by actual or perceived gender, dis- ‘‘pedophiles.’’ Justice has already stated their policy ability, sexual orientation and gender iden- tity. Some, including some constituents of that this legislation does not protect Although local law enforcement agencies mine in Nebraska, are concerned that a pedophiles. As I quoted above, the At- will continue to play the primary role in the term used in this legislation, ‘‘sexual torney General, the Nation’s top law investigation and prosecution of hate crimes, orientation,’’ could be interpreted as enforcement official, made the Depart- federal jurisdiction is a necessary backstop. including ‘‘pedophiles.’’ This is obvi- ment’s policy crystal clear in Congres- Federal resources may be better suited to ad- ously not the intent of the bill, nor is sional testimony: ‘‘the Department dress crimes involving multiple jurisdic- it possible that any of the categories does not believe that any of the listed tions, and there may be times when local au- protected by the bill could be read to categories could possibly be read to in- thorities request Federal involvement. include pedophiles. In short, nothing in clude pedophiles.’’ There also may be rare circumstances in this legislation is intended, nor can it We can have an honest debate about which local officials are unable or unwilling be construed, to protect pedophiles. to bring appropriate charges, or when pros- this bill. I have heard several argu- ecutions, even when successful, do not fully The Attorney General, the chief law ments of reasons why this bill should serve the interests of justice. At the same enforcement officer in the United be opposed, and I appreciate and re- time, there are safeguards, both in the legis- States, has rejected the argument that spect the concerns which underlie lation and in the Department’s internal poli- this bill covers pedophiles. In fact, the those arguments. However, I feel the cies, to ensure that crimes will be prosecuted ranking member of the Judiciary Com- need to reaffirm that in no way is this at the Federal level only when necessary to mittee, Senator SESSIONS, explicitly bill intended to, or can be construed as, achieve justice in a particular case. asked Attorney General Eric E. Holder protecting pedophiles. Some have raised concerns that Congress a question for the record of the Judici- Mr. REID. Mr. President, I ask unan- lacks the constitutional authority to enact this legislation, as well as concerns that it ary Committee’s hearing on this bill, imous consent that the July 15, 2009, which makes clear that the bill, as could infringe on First Amendment rights. letter from Attorney General Holder to The Department addressed these issues at written, could not possibly be read to Senator MCCONNELL and myself be length in a June 23, 2009, views letter to Sen- include pedophiles. As the Attorney printed in the RECORD. ator Edward Kennedy. As we explain in that General stated: There being no objection, the mate- letter, the legislation is constitutional and Proposed U.S.C. § 249(a)(2) would cover vio- rial was ordered to be printed in the would not infringe on First Amendment lent crimes motivated by bias against the RECORD, as follows: rights because it would criminalize no ‘‘actual or perceived religion, national ori- speech or association, but only bias-moti- OFFICE OF THE ATTORNEY GENERAL, gin, gender, sexual orientation, gender iden- vated violent acts resulting in bodily injury Washington, DC, July 15, 2009. tity, or disability of any person.’’ This legis- (or attempts to commit such violent acts). Hon. HARRY REID, lation would only cover groups falling under Finally, the legislation is carefully tailored Majority Leader, U.S. Senate, these categories. The Department [of Jus- to address violence targeting members of Washington, DC. tice] does not believe that any group falling communities that have suffered a long his- Hon. MITCH MCCONNELL, under these categories should be excluded. tory of bias and prejudice. Minority Leader, U.S. Senate, The Department does not believe that any of This Administration strongly supports S. the listed categories could possibly be read Washington, DC. DEAR SENATORS REID AND MCCONNELL: I 909, the Matthew Shepard Hate Crimes Pre- to include pedophiles, and therefore we do understand that S. 909, the Matthew Shepard vention Act, and I urge its passage without not believe an amendment to exclude Hate Crimes Prevention Act, is now before further delay. Now is the time to provide jus- pedophiles is necessary. the Senate in the form of an amendment to tice to victims of bias-motivated violence Despite this assurance, my colleague pending legislation. On behalf of the Admin- and to redouble our efforts to protect our from South Carolina offered just such istration, I strongly urge the Senate to ap- communities from heinous acts of violence an amendment, and I signed on as a co- prove this vital legislation. based on bigotry and prejudice. sponsor to express sensitivity to the As I stated in testimony before the Senate Sincerely, concern he raises, even though I do not Judiciary Committee on June 25, hate crimes ERIC H. HOLDER, Jr., Attorney General. believe this legislation protects victimize not only individuals, but entire pedophiles in any way. communities. Perpetrators of hate crimes Mrs. HAGAN. Mr. President, I sug- Existing Federal law, codified at 28 seek to deny the humanity we all share, re- gest the absence of a quorum. gardless of the color of our skin, the God to The PRESIDING OFFICER. The U.S.C § 534 defines sexual orientation whom we pray, or whom we choose to love. as consensual homosexuality or hetero- Bias-motivated acts of violence divide our clerk will call the roll. sexuality. A similar definition can be communities, intimidate our most vulner- The assistant legislative clerk pro- found in any dictionary of the English able citizens, and damage our collective spir- ceeded to call the roll. language. That and nothing more is it. The FBI reported 7,624 hate crime inci- Mrs. HAGAN. Mr. President, I ask what we are addressing in this bill. dents in 2007, the latest year for which the unanimous consent that the order for I might add that in my view to claim FBI has compiled such data. Recent numbers the quorum call be rescinded. also suggest that hate crimes against certain that this law could somehow be used to The PRESIDING OFFICER. Without protect pedophiles shows a lack of con- groups, such as individuals of Hispanic na- tional origin, are on the rise. Between 1998 objection, it is so ordered. fidence in and respect for local law en- and 2007, more than 77,000 hate crime inci- forcement, and the groups, such as the dents were reported to the FBI. That is near- f International Association of Chiefs of ly one hate crime every hour of every day Police, the National Sheriffs Associa- over the span of a decade. MORNING BUSINESS tion, and the National District Attor- Most hate crimes in the United States are neys Association, which are strongly investigated and prosecuted by our partners Mrs. HAGAN. Mr. President, I ask supporting this bill and asking us to in state, local, and tribal law enforcement, unanimous consent that the Senate and this legislation will not change that re- proceed to a period of morning busi- pass this legislation to help them do ality. Rather, this bill will give law enforce- their jobs in investigating and pros- ment authorities at all levels the tools they ness, with Senators permitted to speak ecuting these heinous crimes. need to effectively investigate, prosecute for up to 10 minutes each. In order for the hate crimes law to be and deter bias-motivated violence. First, it The PRESIDING OFFICER. Without used in the manner some groups claim will enable the Department of Justice to pro- objection, it is so ordered.

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