May 4, 2011 CONGRESSIONAL RECORD — SENATE S2661 to the Senate Judiciary Committee, his [Rollcall Vote No. 64 Leg.] Mr. KYL. The following Senator is liberal judicial philosophy, including YEAS—52 necessarily absent: the Senator from his public antipathy toward private en- Baucus Harkin Nelson (FL) Oklahoma (Mr. COBURN). terprise, and his strong political activ- Begich Inouye Pryor The PRESIDING OFFICER (Mr. Bennet Johnson (SD) ism. For these reasons, I will not sup- Reed UDALL of New Mexico). Are there any Bingaman Kerry Reid port his nomination. Blumenthal Klobuchar Rockefeller other Senators in the Chamber desiring Shaping the judiciary through the Boxer Kohl Sanders to vote? appointment power is one of the most Brown (OH) Landrieu Schumer The yeas and nays resulted—yeas 63, Cantwell Lautenberg Shaheen important and solemn responsibilities Cardin Leahy nays 33, as follows: Stabenow a President has and certainly one that Carper Levin [Rollcall Vote No. 65 Ex.] Tester Casey Lieberman has a profound and lasting impact. The Udall (CO) YEAS—63 President is entitled to nominate those Conrad Manchin Coons McCaskill Udall (NM) Alexander Graham Murkowski whom he sees fit to serve on the Fed- Durbin Menendez Warner Baucus Hagan Murray eral bench, and unless the nominee Feinstein Merkley Webb Begich Harkin Nelson (NE) rises to ‘‘extraordinary cir- Franken Mikulski Whitehouse Bennet Inouye Nelson (FL) Gillibrand Murray Wyden Bingaman Isakson Pryor cumstances,’’ I have provided my con- Hagan Nelson (NE) Blumenthal Johnson (SD) Reed stitutional duty of ‘‘consent’’ for most Boxer Kerry Reid nominees. NAYS—44 Brown (MA) Kirk Rockefeller While I would not have chosen Mr. Alexander Enzi McConnell Brown (OH) Klobuchar Sanders Ayotte Graham Moran Cantwell Kohl Schumer McConnell as a nominee to the Federal Barrasso Grassley Murkowski Cardin Landrieu Shaheen bench if I were in a position to nomi- Blunt Hatch Portman Carper Lautenberg Snowe Casey Leahy Stabenow nate, I respect the President’s ability Boozman Hoeven Risch Chambliss Levin Tester Brown (MA) Hutchison Roberts to do so and therefore will vote for the Collins Lieberman Thune Burr Inhofe Rubio cloture motion on Mr. McConnell’s Conrad Manchin Udall (CO) Chambliss Isakson Sessions Coats Johanns Coons McCain Udall (NM) nomination, but will strongly oppose Shelby Cochran Johnson (WI) Durbin McCaskill Warner his nomination to the Federal bench. Snowe Collins Kirk Feinstein Menendez Webb Thune f Corker Kyl Franken Merkley Whitehouse Cornyn Lee Toomey Gillibrand Mikulski Wyden SBIR/STTR REAUTHORIZATION ACT Vitter Crapo Lugar NAYS—33 OF 2011 DeMint McCain Wicker Ayotte Enzi Moran CLOTURE MOTION NOT VOTING—3 Barrasso Grassley Paul The PRESIDING OFFICER. Under Akaka Coburn Paul Blunt Hoeven Portman the previous order, pursuant to rule Boozman Hutchison Risch The PRESIDING OFFICER. On this Burr Inhofe Roberts XXII, the Chair lays before the Senate vote, the yeas are 52, the nays are 44. Coats Johanns Rubio the pending cloture motion, which the Three-fifths of the Senators duly cho- Cochran Johnson (WI) Sessions clerk will state. sen and sworn not having voted in the Corker Kyl Shelby Cornyn Lee Toomey The bill clerk read as follows: affirmative, the motion is rejected. Crapo Lugar Vitter CLOTURE MOTION f DeMint McConnell Wicker We, the undersigned Senators, in accord- ANSWERED ‘‘PRESENT’’—1 ance with the provisions of rule XXII of the EXECUTIVE CALENDAR Hatch Standing Rules of the Senate, hereby move CLOTURE MOTION to bring to a close debate on Calendar No. 17, The PRESIDING OFFICER. By unan- NOT VOTING—2 S. 493, the SBIR and STTR Reauthorization imous consent, pursuant to rule XXII, Akaka Coburn Act of 2011. the Chair lays before the Senate the The PRESIDING OFFICER. On this Harry Reid, Mary L. Landrieu, John F. pending cloture motion, which the Kerry, Robert P. Casey, Jr., Michael F. vote, the yeas are 63, the nays are 33, Bennet, Al Franken, Jon Tester, Pat- clerk will report. with one Senator responding present. The assistant legislative clerk read rick J. Leahy, Carl Levin, Tom Harkin, Three-fifths of the Senators duly cho- as follows: Charles E. Schumer, Jack Reed, Maria sen and sworn having voted in the af- Cantwell, Kirsten E. Gillibrand, Ben- CLOTURE MOTION firmative, the motion is agreed to. jamin L. Cardin, Bill Nelson, Sheldon We, the undersigned Senators, in accord- Whitehouse, Ron Wyden. ance with the provisions of rule XXII of the f The PRESIDING OFFICER. By unan- Standing Rules of the Senate, hereby move EXECUTIVE SESSION to bring to a close debate on the nomination imous consent, the mandatory quorum of John J. McConnell, Jr., of Rhode Island, call has been waived. to be United States District Judge for the The question is, Is it the sense of the NOMINATION OF JOHN J. MCCON- District of Rhode Island. NELL, JR., TO BE U.S. DISTRICT Senate that debate on S. 493, a bill to Harry Reid, Patrick J. Leahy, John F. reauthorize and improve the SBIR and Kerry, Dianne Feinstein, Frank R. JUDGE FOR THE DISTRICT OF STTR programs, and for other pur- Lautenberg, Jack Reed, Sheldon RHODE ISLAND poses, shall be brought to a close? Whitehouse, Robert Menendez, Amy The PRESIDING OFFICER. The ma- The yeas and nays are mandatory Klobuchar, Barbara Boxer, Daniel K. jority leader is recognized. Inouye, Mark Begich, Mark R. Warner, Mr. REID. Mr. President, I wish to under the rule. Kent Conrad, John D. Rockefeller, IV, The clerk will call the roll. Richard J. Durbin, Ron Wyden. express my appreciation to my friends on the other side of the aisle for allow- The bill clerk called the roll. The PRESIDING OFFICER. By unan- ing cloture to be invoked on this nomi- Mr. DURBIN. I announce that the imous consent, the mandatory quorum nation. It is so important that we not Senator from Hawaii (Mr. AKAKA) is call is waived. necessarily absent. The question is, Is it the sense of the get into a position where we have to Mr. KYL. The following Senators are Senate that debate on the nomination file cloture on all these district court necessarily absent: the Senator from of John J. McConnell, Jr., to be U.S. judges. If there are real problems, there Oklahoma (Mr. COBURN) and the Sen- District Judge for the District of is the hearing process. That is where, ator from Kentucky (Mr. PAUL). Rhode Island, shall be brought to a when problems arise, it comes out in Further, if present and voting, the close? The yeas and nays are manda- the committee, and there is ample Senator from Kentucky (Mr. PAUL) tory under the rule. time to make a case if you don’t like would have voted ‘‘nay.’’ The clerk will call the roll. them personally for whatever reason. The PRESIDING OFFICER. Are there The assistant legislative clerk called But this is a good man. The biggest any other Senators in the Chamber de- the roll. problem he had is he is a trial lawyer— siring to vote? Mr. DURBIN. I announce that the a very fine trial lawyer. The yeas and nays resulted—yeas 52, Senator from Hawaii (Mr. AKAKA) is But I express my appreciation to nays 44, as follows: necessarily absent. those on the other side of the aisle who

VerDate Mar 15 2010 03:16 May 05, 2011 Jkt 099060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A04MY6.016 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE S2662 CONGRESSIONAL RECORD — SENATE May 4, 2011 did the right thing. This is going to This vote, I think, to many of my I also thank my Republican col- make the atmosphere around here so colleagues, was less about an indi- leagues, those who voted for cloture. much more pleasant. I am disappointed vidual and more about whether the Maybe that will help break some of the we weren’t able to get cloture on the Senate would conduct its business in a logjams here. I think it is very mean- small business jobs bill. That was an time-honored tradition with respect to ingful to us on this side of the aisle for important piece of legislation. I District Court nominees; whether the that to happen. It should happen, of thought we had been so very fair on viewpoints not just of individual Sen- course, but the fact that it did happen this legislation in allowing amend- ators from a particular State but the maybe says something—that this is a ments, and we are going to continue al- community of that State—the business day, after what happened over in Paki- lowing amendments. There will be rare leaders, the civic leaders, the members stan, that we can come together. It is occasions, as Senator MCCONNELL said of the bar—whether their views and meaningful. when we started this new Congress, their evaluation would be weighed suc- I thank Senator MCCONNELL as well. when he will not, without a cloture cessfully. He had his strong views, but obviously vote, allow us to proceed to a bill. But I thank everyone for the opportunity we know the respect his colleagues generally speaking, we have been able to move forward on this nomination. have for him and thank him as well for to move legislation, and that is impor- Again, I appreciate and respect the understanding that there will be dif- tant. I have said the same thing about principled debate and thoughtful de- fering views within both sides of the filling the tree. I will still fill the tree, bate of those who took a different posi- aisle as well as on both sides of the but it will be a rare occasion that we tion. But I think today is not just a aisle. will do that. I think that is going to case of an individual nomination; I DEATH OF OSAMA BIN LADEN make things around here a lot better. hope it sets the standard going for- I rise to speak on a different subject Again, I say thank you very much for ward—again, a standard that we as today, and that is about what happened allowing this to go forward. This is Democrats must respect. If a person is in Pakistan and the aftermath. very important that we are able to nominated to be a District Court judge, First, of course, the killing of Osama move on and have the nomination proc- if that person passes through the close bin Laden, the evil mastermind of the ess, as relates to judges, move forward scrutiny of the bar association, of the world’s bloodiest terrorist organiza- expeditiously. There is a lot of blame FBI, of the Judiciary Committee, and tion, was a thunderous strike for jus- to go around as to what has transpired comes to the floor, that District Court tice for the thousands of my fellow in years past. We are past that. Let us New Yorkers and citizens from all over nominee deserves an up-or-down vote. move on. There are things that prob- the world who were murdered on 9/11. It That is something we all have to ex- ably we as Democrats could have done took almost a decade, but the world’s pect. It cannot be a device of conven- a little differently, and there are most-wanted terrorist finally met his ience for the moment; it has to be a things the Republicans could have done fate 4 days ago. New York’s heart is practice of this institution. I think differently as it relates to judges. But still broken from the tragedy of 9/11, today we went a long way to institu- let us start now, as we have been but at least this brings some measure tionalize that. today, with a new day. of closure and consolation to the fami- I yield the floor for my distinguished Again, I say for the fourth time, this lies and victims. is a good day for the Senate. colleague from Rhode Island. When I spoke to the families, one of The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. The Sen- the things that they said galled them ator from Rhode Island is recognized. ator from Rhode Island is recognized. almost every day when they woke up Mr. WHITEHOUSE. Mr. President, I Mr. REED. Mr. President, I wish to was that their father or mother, broth- planned to present some similar thank all my colleagues, particularly er or sister, son or daughter, husband words—if my senior Senator would those who supported this motion to in- or wife was gone and bin Laden still stay just for one moment with me on voke cloture. Everyone brought to this lived. That kind of galling knowledge the floor. He spoke so eloquently that floor very vigorous arguments and very is no longer in their hearts and minds I am simply going to associate myself clear positions. because bin Laden, at least, has met I think what has been confirmed with his remarks, but I also want to his deserved fate. today is not just moving forward on add one additional point, which is how We owe a massive debt of gratitude the confirmation of one judge but re- much I appreciate his leadership and to our military. They have done an affirming a practice in the Senate that how hard he worked and the extent to amazing job. I sat in on the briefings. if the home State Senators submit a which the credibility he has built over Your jaw drops at their profes- District Court nominee who is then put years with his colleagues in this insti- sionalism, their excellence, their sac- forth by the President, and if that per- tution has helped to get us to this rifice, their courage, their dedication— son—that man or woman—receives the point. This was not preordained. unbelievable. appropriate evaluation by the bar asso- There are times here when it feels as That is also true of our civilian intel- ciation, the appropriate vetting by the if the interest groups that seek our at- ligence. The CIA, led by Leon Panetta, FBI, the appropriate scrutiny of the tention and our good wishes control should be incredibly proud. We know committee, and then the vote of the the day around here and there is not they are. It is an agency that gets too committee is to bring that District much of an institution. Today was a little of the acclaim their accomplish- Court nominee to the floor, that we day in which the institution stood up ments deserve. will move to an up-or-down vote on the for itself in all the ways Senator REED Finally, the job President Obama did merits of the individual District Court mentioned. Again, I associate myself should not be forgotten. His steely nominee. with his remarks and add my gratitude courage, his quiet courage was incred- There were extraordinary individuals and respect for him for his leadership ible. All one had to do was look at engaged in this discussion, and they through this process. some of the films from the Situation may view—in fact, I think they do The PRESIDING OFFICER. The Sen- Room and learn a little bit of the his- view—the merits quite differently than ator from New York is recognized. tory to know what an amazing feat this I. But what they had firmly in mind Mr. SCHUMER. Mr. President, I ask was for our President. He could have was not just this moment but the Sen- unanimous consent to speak as in taken the easy way out, in a certain ate as an institution going forward. I morning business and that my time be sense. He didn’t. The easy way out particularly wish to commend Senator counted against cloture. probably would have been an air bom- ALEXANDER, Senator GRAHAM, Senator The PRESIDING OFFICER. Without bardment, but we never would have COLLINS, Senator BROWN of Massachu- objection, it is so ordered. known certainly that bin Laden is setts, Senator MURKOWSKI, Senator Mr. SCHUMER. Mr. President, I wish gone, and there might have been—prob- MCCAIN, Senator SNOWE, Senator to add my kudos to Senator REED and ably would have been many unneces- THUNE, Senator SAXBY CHAMBLISS, Sen- Senator WHITEHOUSE from Rhode Is- sary civilian casualties. The President ator JOHNNY ISAKSON, and SENATOR land for their persistence and their suc- chose the right path. KIRK, as well as all my other colleagues cess today in getting a fine person to I want to say something about this who joined. the bench. President. He is not a chest thumper.

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Mr. President, I One such step occurred on October 26, lack of courage or a lack of strength. would like to take a few minutes to ac- 2001, when President Bush signed into This incident showed the true strength knowledge the steady efforts of our law the PATRIOT Act. It provided the of the man. His speech Sunday night— Armed Forces and our intelligence law enforcement and the intelligence modest but forceful, proud but under- community to eliminate the leader of community greater authority to track stated—was President Obama. There al-Qaida and to help bring some peace and intercept communications among has been a lot of talk of lack of deter- and relief to our Nation and to those suspected terrorists. This law has prov- mination or taking a side or focus. I who lost loved ones in the tragedy on en to be immeasurably valuable to the think the people who do that mistake 9/11. intelligence community. It has en- the President’s steel—often low key, I have heard some people say justice hanced our ability to find and capture often fact-based, often without chest has been done because the leader of terrorists. I hope we will be able to thumping or big slogans—for a lack of this terrorist organization has finally reach a bipartisan agreement to extend strength. They are so wrong. The ac- been killed. I am not one who is going the provisions of the PATRIOT Act tions show it. I think every American, to say justice has been done. I do not that are set to expire at the end of this regardless of political party, regardless consider taking out the leader of a ter- month. of political attitude and conviction and rorist organization who killed thou- As we have seen from various media ideology, should be proud of our mili- sands of Americans who just went to reports—and I look forward to getting tary and of our country but also of our work one day to do their jobs, to add to more details—the ability to monitor President. their quality of life and the lives of communications was a crucial lead I want to say one more thing about their families, an even trade. I do not used by analysts to determine the this. I read today’s newspapers, and consider it is enough. However, it is a eventual location of Osama bin Laden. there was a great deal of talk about first step to righting the wrong that As my colleagues are aware, the provi- how some of the facts that were re- was done by not only the leader of al- sions that are set to expire include the ported in the early moments after this Qaida but all of those he trained authorization for the FBI to use roving great victory were not exactly correct. through the years to give up their own wiretaps on surveillance targets be- There is certainly reason to correct lives in order to kill innocent people. cause at the time we took up the PA- facts, and they certainly are news, but He ruined the lives of so many Ameri- TRIOT Act, we were still having to get they should not displace the impor- cans, and he also ruined the lives of so permission from authorities to wiretap tance of what happened. For critics to many young Muslim followers who a telephone number—not keeping up dwell on the early discrepancies and gave up a productive life for one of ter- with the technology advances that over-exaggerate their importance rorism and murder. allow you to have a cell phone and would be an injustice to the magnitude I thank President George W. Bush for never have a landline and throw away of what really happened. It is only 2 his relentless efforts to put this accom- a cell phone every 15 minutes if you days after we learned early Monday plishment in motion. He is the Presi- think you are in danger of being under morning of what happened, and all of a dent who received the shock on 9/11, surveillance. sudden, it seems, oh, they messed up who had to deal with the immediate It also has a ‘‘lone wolf’’ provision this or they didn’t do that right or this aftermath, and he put in place the or- that allows for the investigation of in- and that. There were discrepancies and ganizations, the military control, and dividuals who are acting alone but who they should be made public, but to the intelligence gathering that have have been radicalized and are sympa- dwell on them, to listen to the morning brought us to this point today. thetic to terrorist organizations and news shows or to look at the headlines I commend President Obama for car- pose a significant national security blaring, may have us miss the main rying these principles through to com- threat. point, which is that a superb, profes- pletion. As things are unfolding more These are just two of the provisions sional, well-practiced, and almost flaw- and more we know President Obama that have enhanced our capabilities to less military mission and civilian ac- made a very tough and very decisive obtain information that has been cru- companiment got rid of the greatest and correct decision. I think both cial in capturing not only terrorists we terrorist in the world. President Bush and President Obama know have already plotted against us Let’s keep our priorities straight. deserve praise today. but also to uncover their plots before Let’s acknowledge, let’s find the facts I also especially say I am proud of they are able to do harm. and watch as they come out, let’s make the Navy SEALs who knowingly went We must not allow the provisions of sure some of the early comments that into harm’s way to take down Osama the PATRIOT Act to expire, especially were not right are corrected, but let’s bin Laden. Those are the troops who at a time when al-Qaida is reeling from not let that in any way detract from probably thought there was a chance the death of their leader and could be the greatness and magnitude of what they might not come back home, but plotting revenge. Stepping back our in- happened. Our focus should be on the they are among the most highly telligence efforts now could allow al- successful mission and on the message trained forces in the world. They oper- Qaida to regroup and launch additional it sends to the world, which is, to those ate in sea, air, and on land. Each and attacks against our Nation. who would test the resolve of the peo- every day they volunteer for some of Another very important step was ple of the United States of America: Do the most dangerous missions under the taken when President George W. Bush not doubt our resolve. If you do us most difficult circumstances, and with- signed the Intelligence Reform and harm, we will find you, we will mete out recognition. Normally, it is some- Terrorism Prevention Act in December out justice, and we will prevail. That is thing we never hear about that takes 2004. This act created the National where our focus should be and should us one step closer to wiping out the Counterterrorism Center. This center stay. terrorism we know in the world today. is the primary organization in the U.S. I yield the floor and suggest the ab- They are truly our Nation’s heroes. Government for integrating, analyzing, sence of a quorum. While much praise, deservedly, goes and sharing all intelligence from the The PRESIDING OFFICER. The to the two dozen Navy SEALs who CIA, FBI, Department of Defense, and clerk will call the roll. raided the terrorist stronghold using others which pertains to counterterror- The assistant legislative clerk pro- surprise and lethal speed, we should ism. This is a very important tool for ceeded to call the roll. not think that they went there alone compiling the various information that Mrs. HUTCHISON. Mr. President, I because they did not. Shortly after the was being gathered by many of the in- ask unanimous consent that the order world saw the brutality of Osama bin telligence organizations and putting it for the quorum call be rescinded. Laden’s savage plan unfold on Amer- through one grid and analysis. It was

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While things are getting bet- selected and highly trained for this makes America great: our freedom and ter, it is clear they have not gotten exact type of mission. They have our way of life. better enough. We have now created 1.8 gained fame in the last few decades I look forward to a day when we will million new jobs since we began adding through books and movies. But these not have to walk through a body scan private sector jobs. So we still have a heroes are real. or put our shoes on an x-ray machine shortfall of about 7 million jobs that I wish to point out that the com- to get on an airplane. I look forward to need to be created in order to get back mander of these elite warriors, VADM a day when we will not have to fight to where we were in November of 2007. William McRaven, is a proud Texan against an enemy who is living among Of course, there have been a lot of new from San Antonio, who is also an alum- us, an enemy who is plotting against us people who came into the job market ni of the University of Texas. Admiral in our own country, an enemy who is since then, so we need to create more McRaven is a highly decorated Navy willing to kill itself in order to kill in- jobs than that. SEAL who lives by the SEAL code and nocent people and destroy our way of We are encountering some strong ‘‘earns his trident every day.’’ Vice Ad- life. I look forward to a day when we headwinds in our effort to dig out of miral McRaven has been nominated by never see a casket at Dover, DE—one of the recession. The strongest headwind the President to receive his fourth star our military elite coming home having is the high price of oil and gas, which and, if confirmed, will lead U.S. Special made the ultimate sacrifice. is a tax on consumers, a tax on our Operations Command. I can think of no That day will only come if we as a businesses, and it comes at a very bad one better qualified to lead our special nation remain willing to fight to pro- time. We are all looking for ways to operations than he is. I look forward to tect the ideals of America—the founda- try to deal with that. Frankly, it is dif- supporting his confirmation on the tion that was laid by our Founding Fa- ficult to legislate a solution. Senate floor. thers and has been protected by every Another headwind is one of our own While these highly skilled com- generation since that time. Today is a creation; that is, the constant drum- mandos deserve every accolade that is day we reflect on those principles. It is beat we hear to cut spending at all lev- bestowed upon them, we cannot forget a day we renew our commitment to up- els of government—cut it in Wash- those who guided them to the target: hold them at all costs. ington, cut it at the State level, cut it the direct and indirect support per- I yield the floor. at the local level. My own strong view sonnel, the technicians, the analysts, The PRESIDING OFFICER. The Sen- is we should heed Professor Blinder’s the pilots and crews, and all those who ator from New Mexico is recognized. advice. We need to continue to work to have worked meticulously and atten- Mr. BINGAMAN. Mr. President, I ask keep investing in those things that will tively for years to finally put together unanimous consent that I be allowed to help us create good-paying jobs. Tim- all the pieces to get the SEALs to the speak for up to 10 minutes as in morn- ing is important. We clearly need to re- right place at the right time. ing business. duce the deficit, but we should adopt We have seen many changes in the The PRESIDING OFFICER. Without policies this year that will put us on a past 10 years. Departments and agen- objection, it is so ordered. long-term path to reduce the deficit. I cies have been consolidated or created, THE ECONOMY hope these policies will delay major military commanders have retired, and Mr. BINGAMAN. Mr. President, the cuts in spending and major increases in administrations have changed hands. country faces two large economic chal- taxes, until we can come out of this re- Most of the soldiers who conducted lenges. The first is growing our econ- cession some additional distance. that first raid in Afghanistan in Octo- omy, creating jobs, getting the econ- Let me talk about the deficits, the ber of 2001 are no longer wearing uni- omy back on track. The second major second challenge I talked about before. forms, just as most of those in the challenge is cutting the deficit. I wish We have a chart called ‘‘Federal Reve- military today were still in school in to briefly talk about both of those. nues and Outlays as a Percentage of September of 2001. Many of those I have four charts—one that relates Gross Domestic Product.’’ This is for a signed up to go into the military after to jobs and growing the economy and 40-year period, from 1970 to 2010. It is a 9/11 because they felt so much loyalty three that deal more specifically with chart the Congressional Budget Office to our country. the deficit. prepared and presented to us. I wish to acknowledge those who de- Unfortunately, in Washington, the Clearly, there are some important voted so many years to pursuing debate has shifted almost entirely to a points you can take away from this Osama bin Laden. To those who have discussion of the deficit. Too many chart. No. 1, on average, over the last retired or moved on to other profes- people in Washington are pretending 40 years, the Federal Government has sions, I want you to know we appre- our efforts to generate growth in the accounted for 20.7 percent of gross do- ciate you and your work was not in economy have been accomplished, that mestic product—spending by the Fed- vain. it is a done deal, that we have recov- eral Government—on average. Over Our leaders said from the beginning, ered from the recession, and we can that same period, on average, we have after September 11—that fateful day— now focus full time on how to cut the raised 18.1 percent of GDP in the form that we would get Osama bin Laden. deficit. of revenues. So, on average, we have Through the efforts of thousands, we The fact is, this is simply not true. been running a deficit of about 3 per- did. We have the most professional, the Professor Alan Blinder, an economist cent of GDP each year during this 40- best trained, the best equipped mili- at Princeton and former Deputy Chair year period. Today, that 3 percent of tary and intelligence agencies in the of the Federal Reserve, testified before GDP is about $450 billion. world. the Senate Finance Committee a cou- The one time during this 40 years While there are sighs of relief now ple weeks ago. He made the following when we achieved a balanced budget— from the public, our work is clearly not statement: and even ran a surplus for a 4-year pe- done. Al-Qaida is still plotting against The economic recovery is mediocre at best riod—was at the end of the 1990s and in our freedom. Other groups are just as and unemployment remains high. To me, the year 2000. How did we manage to do zealously dedicated to the mission of those conditions describe a bad time to put that? Well, beginning in 1990, the Con- destroying our way of life. So while the economy on a diet of either spending gress passed, and President George taking down the head of al-Qaida was a cuts or tax increases. H.W. Bush signed, a bill that both re- victory, it is also a stark reminder that Let me point to the first chart to un- strained spending and raised taxes. we must remain vigilant. derscore the point professor Blinder Again, in 1993 and again in 1997, Con- As we speak right now, our intel- made. The recession we have just gone gress passed and, in that case, Presi- ligence experts are employing, ana- through created a very deep hole. If dent Clinton signed, budget plans that

VerDate Mar 15 2010 02:41 May 05, 2011 Jkt 099060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G04MY6.023 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE May 4, 2011 CONGRESSIONAL RECORD — SENATE S2665 did even more to do what had been Afghanistan. Increased nondefense Mr. President, I yield the floor, and I done in 1990; that is, both of those spending caused 10 percent of the defi- suggest the absence of a quorum. plans restrained spending and raised cits we currently face; the Recovery The PRESIDING OFFICER (Mr. revenues. Act caused 6 percent; Medicare pre- MERKLEY). The clerk will call the roll. We enjoyed a strong economy during scription drug caused 2 percent. The bill clerk proceeded to call the those years in question and that, of The final chart I have shows how roll. course, helped to bring more revenue these policies have affected the deficit Mr. FRANKEN. Madam President, I into the government and get us to a over time. This is a chart which is la- ask unanimous consent that the order balanced budget and a surplus. beled ‘‘Why CBO’s debt projections for the quorum call be rescinded. What went wrong that caused us to, changed between 2001 and 2011,’’ the The PRESIDING OFFICER (Mrs. once again, fall into deficit? I will cite specific policies and drivers. I know HAGAN). Without objection, it is so or- three factors: this is very difficult for anyone to see dered. Mr. FRANKEN. Madam President, I First, the tax cuts Congress enacted on a television. Let me make the main ask unanimous consent to speak as in in the last decade. Beginning in 2001 points. and then again in 2003, Congress passed The main points are that the changes morning business. The PRESIDING OFFICER. Without what have come to be known as the caused by the legislation make up the objection, it is so ordered. Bush tax cuts. These fairly drastically large segments at the top of the chart, NET NEUTRALITY reduced the revenue coming to the Fed- including interest charges. They Mr. FRANKEN. Madam President, I eral Government. At the same time we caused 65 percent of the deficits when rise today to talk about the effort of were cutting taxes, we ramped up Fed- we look at these policy changes. The the House last month to repeal the eral spending, primarily for defense, remaining 35 percent of deficits are due Federal Communications Commission’s and that is a result of the Afghanistan mainly to the economic and technical net neutrality rules. Net neutrality is war and the Iraq war. The estimate adjustments to CBO’s projections pri- the very simple idea that all content there is that something like $1.3 tril- marily to reflect the lower revenue we and applications on the Internet should lion has gone into those efforts. In ad- have enjoyed because of the recessions. be treated the same regardless of who dition to defense, we ramped up spend- How do we dig out of the hole we are owns the content or the Web site. This ing on health care primarily by includ- in? I say simple obvious things. No. 1, is not a radical concept, in large part ing a prescription drug benefit in Medi- we need to keep the focus on growing because it is what we see and experi- the economy. As Professor Blinder care. All of that increased spending oc- ence every time we use the Internet. said, do not put the economy on a diet. curred without any increase in reve- But the House wants to change all of This is not the right time to do that. nues to pay for it. I repeat that none of that and effectively turn control of the Second, we need to agree, as we did this spending was offset with increased Internet over to a handful of very pow- in 1990 and 1993 and 1997, to a balanced revenues. erful corporations. The third factor, of course, that has package of spending cuts and tax in- I want to take a few moments today brought us into the very serious deficit creases that will, once again, put us on to tell you why I think the House’s we now face is the slowdown of eco- a path to a balanced budget. We have vote was a mistake, and why I am nomic activity. This contributed sub- some serious proposals to work from in going to do everything in my power to stantially to increased expenses for the achieving this deficit reduction plan. make sure we don’t make the same government and some of the entitle- Of course, the President’s deficit reduc- mistake in the Senate. But before I get ment programs—Medicaid, food tion commission, the Simpson-Bowles into those details, I think it is impor- stamps, and a variety of them—but commission, and Senator Domenici and tant to take a step back and talk about also the decreased revenues. When peo- Alice Rivlin, the former head of the the Internet we have today. ple are earning less money, they pay Congressional Budget Office, put out a Let’s be clear. The Internet we have less in taxes and less revenue comes to bipartisan commission report which is exists because it is free and open, be- the government to pay for those serv- very constructive. The President him- cause we have always had net neu- ices that the government is providing. self has given the framework for a trality throughout the entire existence The deficit, of course, has worsened plan. There is a bipartisan group of of the Internet. I have to give credit to substantially in the last 2 years be- Senators, the Gang of 6, who are work- my opponents on this issue who have cause of, first, reduced Federal taxes ing to come up with a proposal. And, of done a masterful job of manipulating being collected, largely a result of the course, Senator CONRAD, who chairs the American public into believing recession; second, increased Federal the Budget Committee, is putting to- that net neutrality is something that spending—both because there is more gether a proposed budget plan for that it is not. demand for government services as a committee’s consideration. Net neutrality is not about a govern- result of the recession and also because All of these plans I have mentioned ment takeover of the Internet. It is we passed the Recovery Act to stimu- follow the model used in the 1990s of simply the idea that all content, late the economy. I think most econo- combining both spending cuts and rev- whether it is a Web page, an e-mail, or mists would conclude it has helped enue increases. The only proposal that a movie we are downloading can load stimulate the economy. does not follow this model of a bal- onto our computers at home at the The Pew fiscal analysis initiative anced package of spending cuts and tax same speed, regardless of who owns or analyzed the policies and legislation increases is the budget that was passed controls that content. that have caused the surpluses of the by the House Republicans 2 weeks ago. This is not a radical idea. It is what late 1990s to become the deficits we see Rather than raising revenue while cut- we experience today when we use the today. They produced a list showing ting spending, it would cut revenue Internet. Right now, if we buy their conclusions. That list is on this while cutting spending. In my view, Rihanna’s latest song from iTunes, it chart. We can see these are in the order this cannot lead us to a lower deficit. downloads as quickly as a song from a of importance, the order in which they There is a lot of political polariza- friend who started a band in his or her contributed to the current deficit situ- tion in Washington. I remain hopeful garage. ation. that we can get a critical mass of If you send an e-mail to your mother, The top two drivers on this list are right-thinking people to do what is re- it arrives in her inbox just as quickly the 2001 and 2003 tax cuts—they ac- sponsible, to come together on a bal- as the e-mail she gets from President count for about 13 percent of what we anced package of spending cuts and Obama. If you start a Web site for your face today in deficits—and the Iraq and revenue increases that we can commit small business, your customers are Afghanistan wars, which account for to going forward. We should be able to able to access your Web site and place about 10 percent of what we face. agree on policies that grow the econ- orders for your products just as quick- All told, tax cuts caused 21 percent of omy and shrink the long-term deficit. ly as if they were buying from a multi- deficits since 2001; increased defense I pledge my best efforts to achieve national corporation. spending caused 15 percent of deficits. these objectives. I urge my colleagues I like to talk about YouTube’s early Two-thirds of that was due to Iraq and to work to do so as well. days as a startup because it is such a

VerDate Mar 15 2010 02:41 May 05, 2011 Jkt 099060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G04MY6.023 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE S2666 CONGRESSIONAL RECORD — SENATE May 4, 2011 powerful example of why net neutrality operated with an understanding that ACLU to advocate for the same policy is so critical and how this simple con- network providers must treat all con- of nondiscrimination on the Internet. cept helped create a billion-dollar com- tent the same and must interconnect But they all agree on net neutrality. pany practically overnight. YouTube’s the pipes they have to customers’ And so do the Catholic bishops. early headquarters were situated in a homes with the pipes that are owned Later today, I will receive 87,000 let- tiny space above a pizzeria and Japa- by other operators. This was a funda- ters opposing the House’s effort to nese restaurant in San Francisco, CA. mental design principle that was estab- undo the FCC’s open Internet rules. But just 6 months after the site was ac- lished by academics, engineers, and These letters came from Americans tivated, over 100 million people were computer scientists who designed the across the United States, including using YouTube to watch videos every earliest protocols for Internet traffic. 2,000 letters from Minnesotans who are day. Less than 2 years after it started, The fact is, the Internet started and worried about this issue. They want YouTube sold their business to Google grew because everyone realized they the Internet to stay the way it is—open for $1.6 billion. Isn’t that incredible? needed to cooperate and work together and free from corporate control. Well, I am here to tell you it would for customers to be able to have access I am confident as more Americans re- not have been possible without net to the content they wanted. They real- alize what is at stake, we will hear neutrality. At that time, Google had a ized that is what consumers needed to from more and more constituents who competing product, Google Video, create demand for Internet service, and will ask us to protect them from cor- which was the standard at the time but they realized that is what would lead porate takeover of the Internet. was widely seen as inferior. If Google to the most innovation on the Internet. What is most striking about this had been able to pay Comcast or The FCC isn’t trying to change that. issue, which seems to have gotten lost Verizon or any of the others large It has no interest in derailing free en- in the rhetoric that my opponents use, amounts of money to make its Web site terprise. Quite the contrary. The FCC is that experts from Bank of America, faster than YouTube’s, YouTube would is interested in protecting the Merrill Lynch, Goldman Sachs, still be floundering over that pizzeria innovators and entrepreneurs who have Citibank, Wells Fargo, and Raymond or most likely it would have ceased to made the Internet what it is today. Be- James have all stated they do not be- exist at all. Fortunately, Google cause of the Internet, you no longer lieve the FCC’s current rules will hurt couldn’t pay for priority access, and need a major studio to like your film investment. Citibank has called the the rest is history. or a television show you produce in rule ‘‘balanced’’ and Goldman Sachs What I am saying is, we take, and order to have people see it. You no said it is ‘‘a framework with a lot of have taken, this equality that longer need a major record deal to wiggle room’’ that is a ‘‘light touch’’ YouTube enjoyed—this basic fairness start distributing your music. You no by the FCC. Despite this broad and di- or neutrality—for granted in large part longer need a high school diploma or a verse coalition of businesses and inter- because that is how the Internet has fancy degree to launch a small business est groups, we are still arguing about always been. Unfortunately, many and sell your products online. We don’t something that should have been set- Members of the House have twisted want to change that. We want to pre- tled long ago. this concept and are misleading the serve that. Why is that? A lot has changed in the American public into believing that The FCC’s only goal is to make sure last couple of years. Control of the the government wants to take over the the Internet we know and love does not Internet has been placed in the hands Internet. That is simply not true. become corrupted and altered by a of a small number of players. Media One Member of the House actually small number of large corporations consolidation has raised the stakes for got up on the House floor and said this: controlling the last free and open dis- certain mega conglomerates which Over the last 10 years, over $500 billion— tribution channel we have in this coun- have a lot more to gain in a world billion with a ‘‘b’’—of private investment has try. without net neutrality. I was last year been made to develop broadband throughout As telecom companies have grown on the Senate floor talking about net the country. This is without any kind of tax- larger and fewer and started owning neutrality back in December when the payer money. not just the pipes but also the content, NBC-Comcast merger had not yet been He is wrong on that point, but let’s their incentives have changed. They approved by the FCC or the Depart- put that aside for now. He went on to are starting to care more about giving ment of Justice. At the time, I warned say: their own content a competitive advan- this would be the first in a cascade of This is private sector money being put into tage rather than promoting innovation media consolidation deals. Wouldn’t the marketplace to go and create jobs, to go and competition on the Internet. you know it, 2 months later, AT&T an- and create the kinds of technologies that The fight for net neutrality isn’t nounced another record-breaking $39 allow you to view and use all kinds of apps about changing the Internet, it is billion deal with T-Mobile. that are available on these kinds of devices. about creating a few rules of the road That merger, which Wall Street ap- That was done without net neutrality. They would tell you that they need net neutrality to keep it open and free, to keep it the plauded, is almost assuredly going to in order to have this innovation. Of course, same, and to continue the innovation be a raw deal for consumers. If ap- they fail to point out that net neutrality was and growth that is such a creator of proved, we will have a duopoly in wire- not in place when all this innovation hap- jobs and wealth. less telecommunications in this coun- pened. The fight for net neutrality is about try. Eighty percent of the wireless Yes, it was; it was in place. That is making sure large corporations are not space will be controlled by two compa- the whole point. All of this innovation allowed to put tollbooths on the infor- nies—AT&T and Verizon. occurred while net neutrality was in mation superhighway. This fight is I look forward to the hearing next place. We are not trying to change any- about making sure that the Internet week in the Antitrust Subcommittee of thing. We are keeping the Internet the stays the way it is—free, open, equal, the Judiciary Committee so we can fur- way it has been during this explosion available to everyone regardless of how ther explore the details of this deal. in innovation. much they can pay to get their con- But I think it is fair to say I am very Now, my fervent hope is that this tent. skeptical because it is likely to raise Member of Congress was just horribly, There was a time not so long ago prices and it certainly will reduce egregiously misinformed because not when net neutrality was a bipartisan choice for consumers. I have always only is his statement untrue, it is the issue that was not incredibly con- been skeptical of media consolidation opposite of true. It is 180 degrees oppo- troversial. Three years ago, Mike because at the end of the day, when site of the truth. Huckabee was talking about the need corporations have tremendous amounts Please, everyone understand this, I to keep the Internet a level playing of power to control prices and cripple beg you. Net neutrality has been in field. In 2006, 11 House Republicans competitors to benefit their bottom place since the beginning of the Inter- voted in favor of net neutrality on the line, everyone loses. net. floor. Rarely do you have the Gun Own- But the impact of media consolida- From the very beginning, during all ers of America and the Christian Coali- tion in telecommunications is about of that explosive growth, the Internet tion joining with moveon.org and the more than just consumer prices. We

VerDate Mar 15 2010 02:41 May 05, 2011 Jkt 099060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G04MY6.038 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE May 4, 2011 CONGRESSIONAL RECORD — SENATE S2667 have always known that large corpora- To claim that the FCC engaged in a and the wealthy even as it slashes in- tions have the power to influence elec- power grab is unfair and far from the vestments that undergird the middle tions. Last year, the Supreme Court’s truth. class in this country—everything from decision in Citizens United took a situ- The White House has said the Presi- education funding to Medicare and ation that was already terrible and dent will veto this resolution, but I Medicaid. Let me state the obvious: If made it worse—much worse. Now will be working hard in the coming working people in the middle class are AT&T, Verizon, Time Warner, and months to make sure that we have going to take a hit in tough times, it Comcast can spend unlimited amounts enough votes to stop this before it shouldn’t be to take a hit to pay for of money to support the candidate or reaches the President’s desk. tax breaks for millionaires and billion- campaign they care most about or try We are at a pivotal moment. If we do aires. to weaken or kill net neutrality. It not act to preserve the FCC’s open Let’s look at some of the particulars does not take a rocket scientist to re- Internet rules, the Internet as we know in this so-called deficit reduction plan alize that when a single corporation— it today may cease to exist. I hope my of the House Republicans. For starters, in this case AT&T—spends $15.3 million colleagues will recognize this and will never before have I heard of a deficit in a single year to influence Congress join with me in voting down the reduction plan that begins by demand- and has 93 full-time lobbyists on its House’s resolution of disapproval. ing trillions of dollars in new tax cuts, roster, Congress might churn out legis- Madam President, I yield the floor largely for corporations and the lation that AT&T likes. and suggest the absence of a quorum. wealthy. In addition to allowing the How can American consumers, stuck The PRESIDING OFFICER. The very wealthy to keep all of the benefits with rising cable, Internet, and cell clerk will call the roll. of the Bush-era tax cuts and to keep phone bills, ever be expected to counter The bill clerk proceeded to call the them permanently, the Republican that type of lobbying power? roll. budget would cut the top tax rate from With media consolidation, we have Mr. HARKIN. Madam President, I 35 percent down to 25 percent. Let’s seen a shift in the net neutrality talk- ask unanimous consent that the order again state the obvious: This doesn’t ing points of Members of Congress who for the quorum call be rescinded. reduce the deficit; it digs the deficit are also receiving large checks from The PRESIDING OFFICER. Without hole much deeper. Verizon, AT&T, and Comcast. Yet the objection, it is so ordered. Next, the Republican budget disman- irony here is that the open Internet THE BUDGET tles Medicare and Medicaid and lays rules passed by the FCC earlier this Mr. HARKIN. Madam President, ev- the groundwork for deep cuts to Social year are actually pretty weak and rid- eryone in this body agrees that we Security—changes that will devastate dled with loopholes. Actually, I think must take aggressive action to reduce the economic security of the middle that is the ‘‘wiggle room’’ to which the deficit, but we have to do it right. class in this country. Goldman Sachs was referring. Frankly, the best way to bring down The Republican budget says we can- These rules are, let’s be honest, a me- the deficit is to help 15 million unem- not cut one additional dime from the diocre compromise drafted to appease a ployed Americans get good middle- Pentagon budget because I guess to handful of powerful Internet service class jobs again. Those hard-working them there is no waste in the Pen- providers. Americans would be delighted to be on tagon, there are no unnecessary weap- I was not happy with these rules and the tax rolls and to be taxpayers once on systems, no troops based in Japan thought the FCC should have done again. But, regrettably, the tea party or Europe or elsewhere who could be more, particularly to cover wireless budget passed by the House Repub- brought home. Meanwhile, this tea Internet networks. But it did not. It licans last month takes us in the oppo- party Republican budget slashes Fed- did not in part because the Commission site direction—it would weaken our eral investments in everything from wanted companies such as AT&T to get economy and destroy jobs. education to infrastructure to law en- on board with its plan, and AT&T did— I have spoken previously on the Sen- forcement back to the levels of the more or less. AT&T did not think the ate floor about the grave flaws in the 1920s. Again, let me repeat that. It rules were ideal, but it acknowledged Republican budget. But beyond the slashes Federal investments in every- the framework is a compromise that misguided priorities in that budget, I thing from education to infrastructure gives its investors certainty. object to its premise. The premise of to law enforcement back to the levels That has not changed how the House the tea party Republican budget com- of the 1920s. is framing its rhetoric about this rule, ing over from the House is that Amer- It also repeals Wall Street reform which is one of the reasons I think the ica is poor and broke and we can no that we passed here, as well as the con- vote last month was a political stunt longer afford the investments that sumer protections in the affordable designed to misinform Americans and make possible a strong middle-class care act, including the ban on denying appease a small number of very vocal and world-class economy. Indeed, some coverage for preexisting conditions. critics. This is not what most Ameri- House Republicans take the radical What has that got to do with the def- cans, entrepreneurs, or small busi- view that government has no business icit? nesses want. They and I want a world investing in the middle class, period. I Their budget cuts funding for food where the future Twitters, eBays, and emphatically reject the defeatist safety, workplace safety, environ- Amazons of the world can grow and premise of this Republican budget. The mental protection, and guts the com- thrive without interference from big, United States of America is a wealthy monsense regulation of corporate mega conglomerates. Nation—the wealthiest Nation in world America. It tells Wall Street bankers Finally, regardless of how one feels history. The problem is how that and speculators, health insurance com- about the FCC’s rules, I think we can wealth has been shared or not shared panies, credit card companies, and all agree this issue requires thoughtful among the American people, with in- mortgage lenders: You are free to go debate and discussion, not the kind of come inequality that is the highest back to the reckless abusive practices uninformed rhetoric I quoted earlier among developed countries. Let me re- of the past. We will just trust you to do from the House debate. By forcing an peat that. Right now, income inequal- what is right for the American people. up-or-down vote through the Congres- ity in America is the highest among To appreciate just how extreme and sional Review Act, the House leader- developed countries. So the problem is ideological this budget is, look more ship short circuited the normal legisla- how our wealth has been invested or closely at the blueprint for replacing tive process and ignored the FCC’s misinvested, with trillions of dollars Medicare with a voucher system. The work on this issue. squandered by money manipulators on nonpartisan Congressional Budget Of- The FCC spent months examining Wall Street or funneled to those at the fice estimates that by 2030, future sen- this topic and meeting with tons of top through tax cuts. iors would have to pay two-thirds of stakeholders and Internet companies. Unfortunately, the tea party budget, the cost of their private health insur- It carefully considered and com- authored by Congressman RYAN, would ance. Their out-of-pocket costs would promised on a range of issues that I, make these problems far worse. It lav- average in excess of $12,000 per person, frankly, wish they had not budged on. ishes yet more tax cuts on corporations per year—more than double the current

VerDate Mar 15 2010 02:41 May 05, 2011 Jkt 099060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G04MY6.039 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE S2668 CONGRESSIONAL RECORD — SENATE May 4, 2011 cost to seniors. Yet this would pay for our current challenges without sacri- est level as a percentage of the econ- private plans that would provide only ficing our great middle class and with- omy in 60 years. half of current Medicare coverage. How out abandoning our seniors or people Let me repeat that—their lowest many seniors can afford to pay $12,000 with disabilities and the less fortunate level in 60 years. annually out of pocket for health in- among us. Of legislation passed since 2001, when surance that only gives them half the There is one important point of George W. Bush became President, coverage they have right now for Medi- agreement on both sides of the aisle about half of the negative impact on care? And good luck finding affordable here in the Senate: We agree the cur- deficits came from reductions in rev- coverage if you are a 70-year-old with a rent budget deficits are unacceptable. enue and nearly a quarter came from preexisting condition, such as heart We must bring these deficits under con- increases in defense spending. One-half disease. Good luck fighting endless bat- trol. came from reductions in revenue. tles with your private health insurance However, deficits are by no means I am talking now about what are the company over that one. our only urgent economic challenge. sources. What are the sources of the Madam President, does this tea party An even greater challenge—a greater deficit hole we are in? In 2001, we had Republican budget reflect our values challenge—is our fragile economy and huge surpluses. CBO said if we main- and priorities as Americans? Is this the the jobs crisis. Addressing this success- tained the same budget policies that by kind of country we want to live in, the fully will help reduce the deficit. Now, 2010 we would have paid off the entire kind of country we want to pass on to the unofficial unemployment rate is 8.8 national debt. 10 years later, in 2011, we our children? Of course not. Americans percent, but the real unemployment have a $1.4 trillion deficit. What hap- don’t want or expect a handout, but rate, including people who are under- pened? What decisions were made in they rightfully expect a government employed or who have dropped out of those 10 years that put us in that hole? that lends a helping hand, not one that the job market in frustration and are As I said, the article by Lori Mont- stands in their way and not one that no longer working, is a staggering 16 gomery in the Washington Post clearly destroys the essence of the middle percent. points out, and the CBO clearly points class. The American people want a gov- Meanwhile, our middle class is under out, that half of the hole we are in ernment that helps them to achieve re- siege. Our middle class is being dis- came from reductions in revenue, one- mantled as fast as big corporations can tirement security, a government that quarter came from increases in defense shift our manufacturing jobs overseas. makes sure that when we put money spending, and one-quarter from every- People are losing their savings, their away for retirement, it is going to be thing else. health care, their pensions, and in there when we retire. The American As the CBO analysis makes clear, we many cases losing even their homes. people want to maintain strong invest- do not just have a spending problem, With good reason, the American people ments in education and infrastructure. we have a revenue problem. The main To reduce deficits, the American peo- feel they are losing the American source of our current deficit problem is dream for themselves and for their ple want shared sacrifice, including an not the modest increase in domestic children. increase in revenues from those who spending beyond the one-time spending That is why we cannot look at the in the Recovery Act—which is rapidly can most afford it. They want an end deficit reduction challenge in isolation. coming to an end. The principal source to taxpayer subsidies to oil and gas We cannot just take a slash-and-burn of our deficits is the deep tax cuts and companies, and they want to cut Pen- approach to the budget. Smart coun- the surging Pentagon budget, 75 per- tagon spending. Yet the Republican tries do not just turn a chainsaw on cent of our current problems. budget does exactly the opposite in themselves. Instead of this tea party Yet now the tea party Republican every single respect. Republican budget, which is being sold Make no mistake, this tea party Re- budget calls for trillions of dollars and through fear and fatalism, we need a yet more new tax cuts, largely for publican budget puts us on a course of budget that reflects the hopes and aspi- those at the top. It refuses to cut Pen- disinvestment, drift, and decline. This rations of the American people. We tagon spending in any significant way. budget wreaks of pessimism and gloom need a budget that brings deficits It places almost the entire burden of and doom. As I said, its defeatist under control in a way that allows us deficit reduction on programs that sup- premise is that the United States is to continue investments that boost port the middle class, seniors, people poor and broke and we can no longer competitiveness, create jobs, and with disabilities, and those of low in- afford a strong and secure middle class, strengthen the middle class. we can no longer afford to prepare our I would add this: We need a deficit re- come. young or care for our elderly. Yet, duction plan that actually attacks the Americans are rightly asking some bizarrely, the Republicans insist that sources of our current deficits. What commonsense questions. If a principal we can afford—we can absolutely af- are those sources? Well, a remarkable source of our deficit problem has been ford—another enormous tax cut for article from the front page of Sun- deep tax cuts largely benefitting those millionaires and billionaires. day’s—May 1—Washington Post by at the top, shouldn’t a big part of our I totally reject their premise. I reject Lori Montgomery documented clearly deficit reduction plan include allowing this defeatist Ryan budget—the how the huge budget surpluses of the those unaffordable tax cuts to expire? premise that America is poor and Clinton years were turned into the $1 If ongoing domestic spending increases broke. trillion budget deficit President George are only a minor source of our deficit Here is the truth: The United States W. Bush passed on to President Obama. problem, why does this Republican is recovering from the largest eco- The article states: budget take a slash-and-burn approach nomic downturn since the Great De- Voices of caution were swept aside. Polit- to these programs which are so impor- pression and from the damage caused ical leaders chose to cut taxes, jack up tant to the middle class and to working by very unwise budget decisions made spending, and, for the first time in U.S. his- Americans? The answer, of course, is over the last decade, and we are grow- tory, wage two wars solely with borrowed the tea party Republican budget is not ing wealthier by the day. Our entrepre- funds. principally a deficit reduction plan. It neurial economy, our technology, our The article cites a new analysis by is an ideological manifesto that encom- universities and the arts are the envy the nonpartisan Congressional Budget passes the entire party wish list, every- of the world. Americans are still the Office which determined that ‘‘routine thing from more tax breaks for the rich best educated and most productive peo- increases in defense and domestic to dismantling Medicare and Medicaid. ple on Earth. spending account for only about 15 per- I have a simple test for judging any Most importantly, Americans con- cent of the financial deterioration. The budget plan. What does that plan do to tinue to be an optimistic, can-do peo- biggest culprit, by far, has been an ero- give hope and opportunity to middle- ple. We have faced national trauma, in- sion of tax revenue, triggered largely class Americans who have been hardest cluding depressions and wars and na- by two recessions and multiple rounds hit by the economic downturn? tional disasters, many times before, of tax cuts.’’ To speak in terms specific to my and we have always rebounded stronger The article also notes that Federal State of Iowa, what did it do for Web- and better than ever. We can overcome tax collections now stand at their low- ster City? Webster City is a community

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Real average incomes Recently, in Webster City, IA, the publican’s budget offers more pain and have not gone up since 1979, more than Electrolux plant that has been the no gain to the people of Webster City. three decades ago. Let me repeat that: town’s economic engine for over 80 Instead of increasing opportunity, it Average real incomes haven’t gone up years closed its doors. Production was sends a message of surrender and de- since 1979, more than three decades moved to Juarez, Mexico. In the final feat. Indeed, let’s speak the plain ago. In fact, over the last decade, the round of layoffs in March, 500 Iowans truth. With this tea party budget, Re- average income of working Americans lost their well-paying, middle-class publicans have taken their class war- has actually declined while those in jobs. fare to a new level. They have launched the top 10 percent of income earners This most recent factory closing an unprecedented assault on middle- and wealthy in America, their incomes comes on the heels of 222 plant closings class and working Americans. Their and their wealth has soared to new lev- just in Iowa last year, destroying near- message to struggling folks in Webster els. Vast wealth because of tax breaks ly 12,000 well-paying, middle-class jobs. City and communities like it across and other government preferences have As we all know, each of these plant clo- America is brutally clear: Tough luck. flowed to millionaires and money ma- sures reverberated on Main Street, I have mine. You are on your own. nipulators who pay a tax rate that is with many local stores and restaurants This Republican tea party budget lower than that paid by their chauf- falling on hard times or going out of would drive down our standard of liv- feurs and secretaries. business themselves. Let’s be clear, the ing, shred the economic safety net, re- In 2007, the top 25 hedge fund man- wrong kind of budget plan, one that in- duce access to health care and higher agers took home an average income of discriminately slashes funding for edu- education, and do damage to our public $892 million—yes, you heard that right, cation and job training, infrastructure schools’ ability to prepare our kids for $892 million each, average income for 1 and research, will deepen the plight of the jobs of the future. We can and must year. Over the last decade, the average Webster City and similar communities do better. income of the top 1 percent in America across America. Indeed, by accel- I have come to the floor to propose increased by an average of more than erating the erosion of the middle class an alternative approach to the Federal one-quarter of a million dollars a year. in this country, such a plan will make budget, a planned approach that will Again, let me repeat: The top 1 percent our fiscal situation even worse. There discipline the Federal budget and bring of income earners in America, their in- can be no sustainable economic recov- deficits under control while continuing come increased by an average of more ery in the United States without the to make critical investments in a than one-quarter of a million dollars a recovery of the middle class. There can stronger America. Best of all, we know year for 10 years. I ask, who in their be no sustainable solution to our budg- this approach can work because it is right mind believes these people need et challenges without a strong middle consciously modeled on the successful another giant tax cut? class, a middle class that is getting its budget policies of the 1990s. People do not hate the rich. To the fair share of rising national income. Under President Clinton’s leadership, contrary, most Americans aspire to do As I said earlier, we are growing Congress passed a bold economic plan well and to achieve financial independ- wealthier by the day in America. We that combined tough-minded spending ence. That is a big part of the Amer- are the wealthiest country in world cuts with smart investments and, yes, ican dream. But Americans do resent it history, and we are growing wealthier revenue increases. This created large when the wealthy and powerful manip- by the day. But what we ought to make budget surpluses and put us on a track ulate the political system to reap huge sure is that the middle class will get to completely eliminate the national advantages at the expense of working its fair share of that rising national in- debt within a decade. It created a brief people and the middle class. Ordinary come. era of shared prosperity for the middle people think the game is rigged and un- Again, I think the test of a budget class, with 22 million new jobs and 116 fair, and you know what? They are plan is this: Will it strengthen the mid- consecutive months of economic expan- right. Yet this tea party Republican dle class in America? Will it require sion, the longest in American history. budget says to middle-class Americans shared sacrifice with a promise of I say to the people across America, again: Hey, tough luck. I have mine. shared prosperity in the long run? I we can do this again. The key to re- You are on your own. Your retirement have applied this test to the tea party newing America and restoring our security is expendable. Your access to Republican budget and it comes up economy is to revitalize the middle woefully short. health care and college is expendable. This tea party Republican budget class. This means reducing deficits Your desire for quality public schools cuts the top tax rate for millionaires while continuing to invest in edu- is expendable. Your quest for a modern- and billionaires from 35 percent down cation, innovation, and infrastructure, ized transportation system is expend- to 25 percent. How will that help laid- boosting American competitiveness. It able. All these things, according to the off workers in Webster City? means restoring a level playing field Republican budget, are expendable in The Republican budget dismantling with fair taxation, an empowered order to create a Tax Code even more Medicare and replacing it with an ab- workforce, and a strong ladder of op- favorable to the rich and the powerful surdly inadequate voucher system, will portunity to give every American ac- and the privileged. that strengthen the retirement secu- cess to the middle class. This is deeply wrong. The middle rity of seniors in Webster City? We have the resources, both financial class is the backbone of this country, This budget of the Republican tea and human, to do these things. I repeat and it is time our leaders showed the party people guts Medicaid. Will that what I said earlier, the central false- backbone to defend it. We need an al- improve the lives of seniors and people hood in the tea party Republican budg- ternative, a budget that invests in edu- with disabilities who depend on Med- et is its assumption that America is cation and opportunity for all Ameri- icaid to pay for nursing home care and poor and broke; its assumption that we cans, a budget that invests in the re- home health care assistance? can no longer afford to invest in a pros- tirement security of the middle class The tea party Republican budget perous and secure middle class. Again, and, yes, a budget that does not aban- slashes funding for Pell grants. Will I say emphatically, we are not poor and don the less fortunate among us, in- that improve the prospect for kids in we are not broke. We have the highest cluding seniors and people with disabil- Webster City who plan to go to college per capita income of any major coun- ities. but whose parents are now unemployed try. As I said earlier, the problem is As we saw in the 1990s, we can do and without resources? how our wealth is distributed, how it is these things at the same time we are The tea party Republican budget managed, and how it has been in- bringing deficits under control. This makes Draconian cuts to everything vested—or should I say ‘‘misinvested.’’ will require smart, prudent reductions

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I hope I have set an example with We can and must build on the health The President’s budget proposes the my own appropriations subcommittee, care savings in the Affordable Care elimination of over $100 billion in the Subcommittee on Labor, Health Act. But my friends on the other side international tax breaks in this area. and Human Services, Education, and of the aisle want to repeal the Health A prudent but aggressive mix of Related Agencies of the Appropriations Reform Act. But they do not say where spending reductions and tax increases, Committee. The fiscal year 2011 spend- they are going to get the money to combined with stronger economic ing bill that was enacted last month make up the $1 trillion hole it will growth and an end to the wars in Iraq cuts spending in these areas by almost blow in the budget in the next decade. and Afghanistan, will bring Federal $6 billion and eliminates dozens of indi- The enormously successful deficit re- deficits under control. This will restore vidual programs. I also serve on the duction campaign of the 1990s insisted the fiscal discipline that was squan- Appropriations Subcommittee on De- on a balanced approach: spending cuts dered in the years after President Clin- fense. Of course, I believe we can make and revenue increases. Revenue in- ton left office. major spending cuts without harming creases were concentrated on the most Best of all, this restored fiscal foun- our national security. I agree with Sec- affluent Americans, those who could dation will allow us to continue mak- retary Gates, who has urged us to ter- most easily afford it, and who benefited ing critical investments in transpor- minate the additional C–17 cargo the most from the strong economy and tation and infrastructure, education planes and a new amphibious fighting the stock market that followed. This and energy, investments that will put vehicle. I would also save $12 billion by must be our template as we raise nec- Americans back to work, strengthen terminating the V–22 Osprey, which essary revenues to reduce future defi- our global competitiveness, and pre- even Dick Cheney labeled a turkey and cits. pare our workforce for the future. By all means, we must allow the Make no mistake, we have no time to tried to cancel it. waste. While the United States has I would also save $80 billion over the Bush era tax breaks for the wealthiest been distracted and weakened by fool- next decade by reducing the number of 10 percent of Americans to expire im- ish wars and speculative bubbles, our Active-Duty military personnel sta- mediately. To put it bluntly, they do competitors have been charging ahead. tioned in Europe and Japan. not need it, and we cannot afford it. Most importantly, it is time to save The fact is, high-income Americans did We have lost major ground to China hundreds of billions of dollars by speed- extremely well in the 1990s under the and to other rapidly growing econo- mies, including Brazil, South Korea. ing up the return of our troops from higher rates of the Clinton years, and We are playing catchup and the stakes Iraq and Afghanistan. It costs an esti- they will continue to do very well in are enormous. mated $1 million a year to deploy and the future, while contributing their fair share to bringing deficits under Across America, roads are crumbling, support each soldier deployed in those bridges are collapsing. Our formerly wars. That is an extravagance we can control. I also strongly agree with President world-class interstate highway system do without. Obama’s proposal to limit itemized de- is increasingly overwhelmed. Mass We can also make cuts close to home. ductions for the wealthiest 2 percent of transit systems, including Washing- I represent a farm State, and I have a Americans, a reform that would reduce ton’s once proud Metro system, have strong record of supporting a true farm the deficit by $320 billion over 10 years. fallen into disrepair. We have a back- income safety net. However, in this We need to end the outrageous gim- log of nearly $300 billion in school con- time of strong commodity prices, micks in our Tax Code. Just one exam- struction and modernization. record levels of net farm income, the ple. The ‘‘carried interest’’ loophole al- In infrastructure, we currently invest USDA—the Department of Agri- lows many hedge fund managers to pay less than one-third of what Western culture—is still paying out nearly $5 taxes at just a 15-percent rate on part Europe does as a percentage of GDP. billion a year in direct payments to of their bonuses, a far lower rate than China has tripled its investment in farmers, having no relationship to farm middle-class Americans pay. education, and is building hundreds of income or commodity prices or to what As I said earlier, in one recent year, new colleges and universities at a time they are even planting. No question, we the top 25 hedge fund mangers took when we are slashing school budgets can save some money here while still home an average income of $892 million and laying off teachers. making sure farmers have a good solid a year each. Let’s tax this income the The tea party Republican budget income safety net protection system. same way we tax the income of teach- makes this investment gap far worse. We also must find additional deficit ers and truckdrivers. It proposes to cut funding for transpor- reduction in the area of health care. In addition, I strongly favor a modest tation by 25 percent, and for education Once again, the tea party Republican speculation tax on certain types of fi- by 25 percent, and in future years budget flunks the test. It does not re- nancial transactions, a .25-percent would cut those investments even more duce spending on health care, it just tax—that is one-quarter of 1 percent deeply. Congressman RYAN has the au- shifts costs. It shifts the costs to sen- tax—on each stock transaction, and a dacity to tell us this is ‘‘a path to pros- iors and others by making them pay similar tax on options, futures, and perity.’’ Common sense tells us it is a most of the bills themselves. swap transactions. bridge to nowhere. By contrast, the new health reform In order to minimize the impact on These statistics are not abstractions. law actually cuts health care costs. ordinary American investors, this Investments in education, infrastruc- Again, according to CBO, it reduces the would exclude transactions in tax-ben- ture, and innovation directly translate deficit by hundreds of billions in the efited pension accounts such as 401(k)s into more and better jobs, higher in- first decade and by more than $1 tril- and IRAs and defined benefit plans. comes, stronger economic growth. That lion—the health reform bill cuts the Some might say, well, this sounds is why we need to get America moving deficit by more than $1 trillion in the kind of a pie in the sky. Well, Great again. second decade, while preserving and Britain currently levies a tax on stock For starters, we need a massive new strengthening Medicare, not dumping transactions that is twice as high as commitment to infrastructure expan- it on the backs of seniors. It does so by what I am proposing—twice as high as sion and modernization, truly a Mar- rewarding health care providers for the what I am proposing. There is no ques- shall plan for America. The first step is quality of care, not the quantity. It tion that Wall Street can easily bear to adopt a solid 6-year surface trans- does so by placing a sharp new empha- this modest tax. portation reauthorization bill that will sis on wellness and prevention, keeping John Bogle, the legendary founder of allow us to modernize our transpor- people out of the hospital in the first the Vanguard Mutual Fund Group, has tation system.

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This will lower our en- cure for cancer. serves the interests of clients who need ergy costs in the long term, and will Through our government, we come help, many of whom don’t have a voice reduce our dependence on some of the together to provide a ladder of oppor- themselves, or certainly the capability most unstable countries in the world. tunity to give every citizen a shot at of representing themselves, who need Early in the 20th century, we pro- the American dream, a ladder of oppor- somebody who can help them. vided the emerging oil energy with sub- tunity that includes quality public But I have to tell my colleagues that sidies to accelerate its growth. Today, schools and universities, Pell grants, it is because of my respect and admira- we must provide similar policies to ac- the GI bill, job training. Through our tion for the legal profession that it celerate America’s transition to a government, we come together to en- makes me angry when I see people clean energy economy, including long- sure that our citizens have a secure re- making a mockery out of the term tax credits for a renewable energy tirement with guaranteed access to foundational principles I just men- generation, and for infrastructure in- health care, and to ensure that the less tioned: the rule of law, ethics, and the vestments for biofuels, as well as smart fortunate among us are not abandoned fiduciary duty owed to a client. grid technologies to enable broader re- to the shadows of life. After I practiced law for a while, I newable energy use. The goal should be I am convinced that the great major- had the great honor of being elected to 25 percent of our energy from renew- ity of Americans share this positive and serving as a district judge in my able resources by 2025. can-do vision. We refuse to be dragged home city of San Antonio. So not only In the field of education, we need backward into a winner-take-all soci- did I represent clients as an advocate major new investments. This begins ety where the privileged and the power- in court, I had the responsibility of with Federal support for universal pre- ful seize even a greater share of the presiding over trials and making sure school education to ensure that every wealth, as the middle class struggles people were treated impartially, the child is ready to learn and succeed in and declines. same, and according to the rule of law; school. It means an ambitious reau- Americans are a tough and resilient that it was not a matter of who they thorization of the elementary and sec- and optimistic people. We can and will were or how much money they had but ondary education bill that close the work together to meet the great chal- that everybody could have access to gap between world-class schools in af- lenges of our day. We can and will, in- our system of justice. fluent suburbs, and struggling schools deed we must, restore the middle class Later I was honored to be elected to in poor urban and rural communities. as the backbone of a stronger, richer serve on the Texas Supreme Court for 7 It means providing resources to ensure and fairer America. years where I was an appellate judge that the goal of graduating students I yield the floor. and I wrote legal opinions, basically who are college and career ready ap- The PRESIDING OFFICER (Mr. grading the papers of some of those plies equally to students with disabil- MANCHIN.) The Senator from Texas. trial judges and making sure that in- ities. Mr. CORNYN. Earlier today we had a deed we had equal justice under the In closing, in my remarks today I cloture vote on the nomination of Jack law. Then I served as attorney general have offered not just an alternative ap- McConnell to be a United States Dis- for 4 years before I came here, during proach to bringing deficits under con- trict Judge for Rhode Island, and 63 which time I became acquainted with a trol but an alternative vision of the Senators voted to cut off debate and to certain class of entrepreneurial law- role of the Federal Government. Going move then to a final vote on confirma- yers whom I think threatened the very back to the 1930s, the American people tion which will occur, I am told, rule of law I have been talking about. have supported and strengthened an around 5:30, shortly. I previously talked about my objec- unwritten social contract. That social But first I wanted to come to the tions to Jack McConnell’s nomination contract says we will prepare our floor and expand a little bit on some of and confirmation to serve as a Federal young and care for our elderly. That my earlier comments with regard to judge because I believe he inten- social contract says if you work hard this nomination and why I am so tionally misrepresented certain facts and play by the rules, you will be able strongly opposed to it just to make a before the Senate Judiciary Com- to rise to the middle class or even be- few other comments. mittee. Mr. McConnell and his firm yond. That social contract says a car- Thirty-three years ago I became a have been sued in Ohio for stealing and dinal role of government is to provide a lawyer, a member of the legal profes- maintaining custody of certain stolen ladder of opportunity, so every Amer- sion. While I have heard as many law- documents in a lead paint lawsuit ican can realistically aspire to the yer jokes as a person can stand in a which I will speak about in a moment. American dream. lifetime, I am actually proud of the As a matter of fact, earlier today I in- In one fell swoop, this tea party Re- legal profession. What attracted me to troduced an article which dem- publican budget rips up that social con- it was study of the law, the rule of law, onstrates that legal dispute still is rag- tract. It replaces it with a winner-take- and the majesty of law being made by ing and is not yet resolved. Yet the all philosophy, again, that tells strug- elected representatives of the Amer- Senate is moving ahead and will likely gling, aspiring people and communities ican people speaking for the American confirm someone to a life-tenured job across America: I have got mine. You people themselves; a profession that as a Federal judge who may ultimately are on your own. observes a rule of ethics, that is not be found responsible. I don’t know, he As I said at the outset, the Repub- just who can get the most the fastest could be vindicated. But why are we lican budget is premised on the idea but one that actually requires lawyers taking the risk that this individual that America is poor and broke, that to practice according to a standard of who will be given a lifetime job as a our best days are behind us, that we ethics. Federal judge might ultimately be have no choice but to slash investment Third, the obligation and the respon- found culpable in something that is required in order to keep our middle sibility that comes with representing a certainly disqualifying if he is respon- class strong. I totally disagree. client; in other words, it is not the law- sible for it? America remains a tremendously yer who is speaking on his or her own But I wish to speak just a little bit wealthy and resourceful nation. We are behalf but a lawyer who is speaking on more about—well, I wish to tell a an optimistic, forward-looking people. behalf of a client, whether they have story. I think it helps make the point We are a purposeful and can-do people, been arrested and charged with a I wish to convey. and we expect our government to be on crime, whether they have been injured Once upon a time there was an enter- our side, the side of the middle class. in an accident and seeking compensa- prising lawyer and some of his law We expect it to be an instrument of na- tion for some wrongdoing and to deter partners who were trying to figure a tional greatness and purpose, allowing future acts, similar actions in the fu- new way to make a lot of money. One us to come together to achieve the big ture, whether it is a commercial dis- of them said: things we cannot achieve as individ- pute over a contract or some other re- ‘‘Well, I have a plan to do that. First, uals, things such as building an inter- lationship. I believe it is the rule of law we have to pick a product or sector of

VerDate Mar 15 2010 02:41 May 05, 2011 Jkt 099060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G04MY6.043 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE S2672 CONGRESSIONAL RECORD — SENATE May 4, 2011 the economy that is unpopular, even aren’t responsible—you still have to ultimately, from the standpoint of the though it is legal. For example, to- navigate the maze of litigation through company, bar any future lawsuits. The bacco.’’ the trial and the appellate and the Su- defendants agree rather than paying a ‘‘Exactly,’’ one of the lawyers said. preme Court. You know you might just lump sum settlement out of their cur- ‘‘We pick a product like tobacco, and win if you can outlast their adver- rent assets to pay hundreds of billions we sue the manufacturer and make a saries. But in the meantime, as I indi- of dollars to these lawyers and the lot of money.’’ cated earlier, the stock price takes a State out of future profits. ‘‘The problem is we have already beating, management is consumed with How do you make sure you don’t tried to do that in individual lawsuits defending the lawsuit rather than run- have to dip into your current assets? that are designed to compensate vic- ning the business, and millions of dol- Well, basically, the defendants agree tims and deter wrongdoing, but we lost lars are being spent on their own law- under this arrangement to raise the all of those lawsuits.’’ yers in order to defend this case. price of their product for consumers. ‘‘Well,’’ the enterprising young law- Well, in this story the law partners of So, ultimately, the consumers pay, and yer who suggested this plan said, ‘‘we this enterprising young lawyer say: the defendants will pay the attorney’s did, but now we have a new legal the- That sounds like a great plan. We could fees out of this same income stream. ory. We have a new approach. And it is earn a lot of money. Now, these lawyers in this story be- a legal theory that has never actually The lawyer proposing this says: Well, lieve this is really a stroke of genius. been embraced or accepted by the we can earn more than you can pos- While no person who has allegedly been courts.’’ sibly imagine because our compensa- injured by this product will receive a One of the other lawyers said, ‘‘Well, tion may well exceed $100,000 an hour. penny—and, indeed, as a result, the de- how does that work? What is the the- Well, how do you do that? No one can fendant will not be deterred from en- ory?’’ charge $100,000 an hour as a legal fee. gaging in that sort of conduct, nor will, To which the other responded, ‘‘Well, Well, this is the best part from their as I say, any victim be compensated— the theory really doesn’t matter be- perspective. They would not actually the State recovers a windfall of dam- cause this case will never be tried, but negotiate an hourly fee under the su- ages without having to appear to raise it will be settled for billions of dol- pervision of a judge that reflects pre- taxes, although the increased price for lars.’’ vailing ethical standards. Instead, they the product is passed along to con- That takes us to the second part of will negotiate a deal with this attorney sumers. the plan. The truth is, the client or the general for the State on a contingency As a result of this deal, the defend- person who would be represented is not fee basis in a no-bid, noncompetitive ant’s stock price rebounds, they can an individual victim who was harmed contract. So then they would get a per- stay in business essentially as a part- as a result of some wrongdoing by the centage of any amount of money recov- ner with this law firm whose legal fees manufacturer of the product, but in- ered in this bet-the-company lawsuit. will be paid out of future sales revenue, stead of that it is the State—a State. Since there are no costs up front for and the State official who agrees to How do you get hired to represent a the taxpayer, the State attorney gen- this ingenious scheme is elected to State? Well, you have to get the attor- eral would look like a hero, even if the higher office in part on the strength of ney general—my former job. You have lawsuit was unsuccessful. But if he suc- this David v. Goliath story. The only to get the attorney general, who is the ceeds, these lawyers would get a sig- problem with this story is that it is no chief law enforcement officer of the nificant percentage of an astronomical fairy tale. State, to basically hire you and then to sum of money. No funds would be ap- So who are these lawyers who delegate to you the sovereign law en- propriated by the legislature to finance dreamed up this ingenious scheme to forcement power of the State—in this the litigation, so the State official can partner with a State official to be able case to sue the makers of a product. make the ethically fallacious and ethi- to be delegated the sovereign power of Part of this scheme is you sue not just cally dubious claim that no tax dollars the State and collect fabulous wealth for damages to one individual or a will be used to pay legal fees. The offi- in the form of attorney’s fees that no group of individuals, you sue for essen- cial enters into this no-bid contract for judge will award and no jury will award tially everyone in the State, alleging legal services with lawyers whose fu- because it is part of this settlement? billions of dollars in damages. ture political support, including cam- Jack McConnell, the nominee, and his The key reason this is so important paign contributions, is assured. The of- law firm. to this scheme, of course, is because ficial can expect to be lauded as a pop- His Web site says: McConnell played this is a break-the-company lawsuit. ular hero in the press by his willing- a central role in the historic litigation By that I mean it is an existential ness to take on an unpopular industry. against the tobacco industry in which threat to the existence of this com- Now, as part of this scheme and $246 million in all was recovered, it pany, far bigger than any legal threat story, to leverage the chances for suc- says, on behalf of the State attorneys they may have faced in the past, be- cess, these lawyers then cherry-pick general, serving as a negotiator and cause the damages are enormous. the court where the lawsuit is filed, a primary drafter of the master settle- Every potential juror who would sit in court well known for being friendly to ment agreement. As a result, Mr. judgment of the case being a con- these sorts of claims. Seeing the hand- McConnell told us in the Judiciary stituent, a resident of that State, writing on the wall, ultimately as part Committee, he expects to collect be- would stand to benefit in some way or of this scheme, the plan would be that tween $2.5 million and $3.1 million a another by any judgment rendered the defendants, even though they are year from now through 2024. What is against this company. Then, of course, not—the chances of proving them re- more, Jack McConnell now finds him- there is the power of the State itself to sponsible are very thin, the risk of los- self nominated to be a Federal judge in launch, perhaps, a negative publicity ing and losing the company are so huge whose court future ingenious but ethi- campaign against this company or sec- that they decide to go to the settle- cally dubious schemes can be expected tor to erode the stock value of this ment table. to have a warm reception. company in order to compel them or Well, here is the deal. The plaintiff’s This is the type of thing Stuart Tay- force them into a settlement posture. lawyers say—under this scheme, and in lor—a well-respected legal commen- Well, part of this scheme is that even some ways it turns out to be a lifeline tator—called, he said: The rule of law though the chances of winning in court to the defendants—first, the good news: has now morphed into these sorts of are very slim, even a small risk of los- The defendants will survive. They schemes into the rule of lawyers. He ing everything—wiping out share- won’t be at risk of losing the com- has talked about the sequel to this liti- holders, retirees, pension funds, and pany—the employees, the stock price, gation I have described in this story employees—even that small risk is the pensioners, the retirees who depend which was the lead paint lawsuit, enough to cause the defendant to con- on the existence of the company. which we have talked about a little be- sider coming to the settlement table. Secondly, the business will continue fore, which was unanimously rejected True, even if you have a chance—liabil- to operate and—here is the best part— by the Rhode Island Supreme Court— ity is very thin and you think you the judgment that will be entered will frivolous litigation.

VerDate Mar 15 2010 02:41 May 05, 2011 Jkt 099060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G04MY6.044 S04MYPT1 tjames on DSKG8SOYB1PROD with SENATE May 4, 2011 CONGRESSIONAL RECORD — SENATE S2673 As a matter of fact, Mr. McConnell constituents, it is my responsibility to These two novel legal theories give the ad- and his law firm were assessed fees of the Senate, to express the strong objec- ministration extraordinary discretion to de- over $200,000. But Mr. Taylor said: It is tions I have to this nominee. Surely— cide who’s misleading the public and whose litigation of this type which has per- well, I know there are better people for products are defective. You might approve the outcomes in these two cases, but they es- verted the legal system for personal or the President to nominate in Rhode Is- tablish precedents for other cases you might political gain at the expense of every- land. Two of them serve in the Senate. find wildly unjust. one else. Strong words, hard words, but There are other qualified people who Worse, no judge will ever scrutinize these I think the Senate needs to know the could be nominated, and I believe this theories. The administration has no inten- type of nominee we are voting on, and ethically challenged nominee—who, ac- tion of seeing these lawsuits through to final the American people need to know cording to the words of Stuart Taylor, verdicts. The goal of both efforts is to what the record of this nominee is, so is among a class of lawyers who have threaten the industries with such large pen- then they can hold the Senators who perverted the legal system for personal alties that they’ll agree to a deal—for the cigarette makers, to pay a large amount of vote for his confirmation accountable. and political gain at the expense of ev- money to the federal government, coupled But this is not a partisan issue. It is eryone else—is the wrong person for perhaps with a steep increase in the price of not. This is not even about ideology. this job. So I will be voting against the a pack of cigarettes; and for the gun makers, This is about ethics. This is about up- nomination. to limit bulk purchases and put more safety holding the rule of law. I yield the floor. devices on guns. In announcing the lawsuit Mr. President, I ask unanimous con- EXHIBIT 1 against the gun makers, HUD Secretary An- sent that after the close of my re- [From the Wall Street Journal, Jan. 12, 2000] drew Cuomo assured the press that the whole effort was just a bargaining ploy: ‘‘If all par- marks, a Wall Street Journal article, DON’T DEMOCRATS BELIEVE IN DEMOCRACY? ties act in good faith we’ll stay at the nego- dated January 12, 2000, by Robert B. (By Robert B. Reich) tiating table.’’ Reich, be printed in the RECORD. If I had my way there would be laws re- But the biggest problem is that these law- The PRESIDING OFFICER. Without stricting cigarettes and handguns. But Con- suits are end runs around the democratic objection, it is so ordered. gress won’t even pass halfway measures. Cig- process. We used to be a nation of laws, but (See exhibit 1.) arette companies have admitted they this new strategy presents novel means of Mr. CORNYN. Mr. Reich was Sec- produce death sticks, yet Congress won’t lift legislating—within settlement negotiations retary of Labor during the Clinton ad- a finger to stub them out. Teenage boys con- of large civil lawsuits initiated by the execu- ministration, and he wrote an article tinue to shoot up high schools, yet Congress tive branch. This is faux legislation, which in the Wall Street Journal that I think won’t pass stricter gun controls. The politi- sacrifices democracy to the discretion of ad- is particularly appropriate to what I cally potent cigarette and gun industries ministration officials operating in secrecy. have got what they wanted: no action. Al- am talking about. The lead of the arti- It’s one thing for cities and states to go to most makes you lose faith in democracy, court (big tobacco has already agreed to pay cle from this prominent Democrat, a doesn’t it? the states $246 billion to settle state Med- Cabinet Secretary under Bill Clinton, Apparently that’s exactly what’s happened icaid suits, and 28 cities along with New is: ‘‘Don’t Democrats Believe in De- to the Clinton administration. Fed up with York state and Connecticut are now suing mocracy?’’ That is the title. I will not trying to move legislation, the White House the gun manufacturers; it’s quite another for read all of it, but I will read just a few is launching lawsuits to succeed where legis- the feds to bring to bear the entire weight of sentences. lation failed. The strategy may work, but at the nation. New York state isn’t exactly a In talking about this kind of govern- the cost of making our frail democracy even pushover, but its attorney general, Eliot weaker. Spitzer, says the federal lawsuit will finally ment-sponsored litigation by outsourc- The Justice Department is going after the ing the responsibilities of the sovereign pressure gun makers to settle. New York’s tobacco companies with a law designed to lawsuit is a small dagger, he says. ‘‘The feds’ government and the elected officials to fight mobsters—the 1970 Racketeer Influ- is a meat ax.’’ contingency fee lawyers, whose only enced and Corrupt Organizations chapter of The feds’ meat ax may be a good way to motive is maximizing their personal the Organized Crime Control Act. Justice al- get an industry to shape up, but its a bad profit, he said: leges that the tobacco companies violated way to get democracy to shape up. Yes, RICO by conspiring to create an illegal en- . . . the biggest problem is that these law- American politics is rotting. Special-interest terprise. They did this by agreeing to a ‘‘con- suits are end runs around the democratic money is oozing over Capitol Hill. The mak- certed public-relations campaign’’ to deny process. We used to be a nation of laws, but ers of cigarettes and guns have enormous any link between smoking and disease, sup- this new strategy presents novel means of clout in Washington, and they are bribing press internal research and engage in 116 legislating—within settlement negotiations our elected representatives to turn their ‘‘racketeering acts’’ of mail and wire fraud, of large civil lawsuits initiated by the execu- backs on these problems. which included advertisements and press re- tive branch. This is faux legislation, which But the way to fix everything isn’t to turn leases the companies knew to be false. sacrifices democracy to the discretion of ad- our backs on the democratic process and pur- A few weeks ago, the administration an- sue litigation, as the administration is ministration officials operating in secrecy. nounced another large lawsuit, this one Well, I agree with Secretary Reich. I doing. It’s to campaign for people who prom- against America’s gun manufacturers. Jus- ise to take action against cigarettes and think this is a threat to our democ- tice couldn’t argue that the gun makers had guns, and against the re-election of House racy. Again, I do not think it should be conspired to mislead the public about the and Senate members who won’t. And to fight viewed as a partisan issue, even though danger of their products, so it decided like hell for campaign finance reform. In he has that provocative headline and against using RICO in favor of offering short, the answer is to make democracy he is talking about members of his own ‘‘legal advice’’ to public housing authorities work better, not to give up on it. organized under the Department of Housing party who have endorsed and initiated and Urban Development, who are suing the Mr. GRASSLEY. Mr. President, I rise some of this type of litigation. gun makers on behalf of their three million today to speak in opposition to one of We had an earlier vote, as I said, tenants. The basis of this case is strict liabil- President Obama’s most controversial where 63 Senators voted to close off de- ity and negligence. The gun makers alleg- nominees, Mr. Jack McConnell, who bate, and we will have a vote here in edly sold defective products, or products has been nominated to be U.S. district short order. I know some Senators they knew or should have known would harm judge for the District of Rhode Island. have indicated they voted to close off people. He has dedicated his professional ca- debate because they felt that was the Both of these legal grounds—the mobster- like conspiracy of cigarette manufacturers reer, and enriched himself in the proc- appropriate vote to make, but they to mislead the public, and the defective as- ess, by bringing dubious mass tort liti- were going to vote against Mr. McCon- pects of guns or the negligence of their man- gation. I believe he has demonstrated a nell’s nomination. So we will see how ufacturers—are stretches, to say the least. If result-oriented view of the law. He has many votes he gets. But we know if it any agreement to mislead any segment of repeatedly demonstrated that he is is a party-line vote, there are 53 Demo- the public is a ‘‘conspiracy’’ under RICO, highly partisan. And given his history crats in this body and 46 Republicans. then America’s entire advertising industry is of intemperate and highly partisan re- If it is a party-line vote, Mr. McConnell in deep trouble, not to mention health main- marks, I do not believe he is capable of is going to be a Federal judge. But I tenance organizations, the legal profession, automobile dealers and the Pentagon. And if being an impartial jurist. think it is important to make the every product that might result in death or First, Mr. McConnell is an active par- RECORD crystal clear as to the type of serious injury is ‘‘defective,’’ you might as tisan, a little more so than most nomi- nominee Senators are voting on. I well say goodbye to liquor and beer, fatty nees recently before the Senate. Mr. think it is my responsibility to my foods and sharp cooking utensils. McConnell and his wife have donated at

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Partisan criticism made little reference to the agreement involved a commitment political activity is not disqualifying points of law. Rather, his major com- by DuPont to contribute over $12 mil- on its own. My concern is that Mr. plaint was simply that, in his view, lion to charity and a commitment by McConnell is so steeped in political ac- ‘‘justice was not served.’’ His op-ed the State of Rhode Island to dismiss tivity and ideology that it may be im- lambasted the court for ‘‘let[ting] the case against DuPont. DuPont re- possible for him to be an impartial ju- wrongdoers off the hook.’’ Not only fused to pay any attorneys’ fees be- rist—even if he earnestly believes that were these statements intemperate, cause they were disputing the permissi- he can. even for an advocate, but they reflect a bility of the State’s use of private We can legitimately question wheth- results-oriented view of judging. Mr. counsel on a no-bid contingency-fee er his partisanship will influence his McConnell did not focus on the court’s contract. Nonetheless, DuPont agreed judicial philosophy. He has made a analysis or argue that it wrongly ap- to make a sizeable donation to charity number of sharp partisan political plied the law. He argued that the to settle the case. statements, including one in which he ‘‘wrongdoers’’ weren’t punished. In In my view, the donation to the Bos- indicated that only Democrats fight for other words, the result didn’t fit with ton hospital is highly suspect. Settle- ‘‘economic and social justice and op- his notion of justice, so it was the ment money that was supposed to help portunity for all.’’ He has called for a wrong result. reduce lead poisoning in Rhode Island more ‘‘active government’’ and redis- Mr. McConnell was also deeply in- in effect was diverted to offset a debt of tribution of wealth, and claimed that volved in State lawsuits against to- Mr. McConnell’s law firm. The chair- ‘‘health care should be a right of citi- bacco companies. However, beyond liti- man of the Rhode Island Republican zenship.’’ When Republican Gov. Lin- gation, he has shown an open hostility Party described the problem as follows: coln Almond kept the Rhode Island to tobacco companies. He told the press ‘‘McConnell’s law firm had a $3 million government open during a snowstorm in 1999 that he would ‘‘like Congress to obligation to a Boston hospital, and so in 1996, Mr. McConnell commented to put the Cigarette makers out of busi- as part of the settlement, $2.5 million the press that the decision was ‘‘typ- ness.’’ He has even gone so far as to of that obligation was paid by Du- ical of the cold-hearted Republican at- compare people who opposed smoking Pont.’’ titude of disregarding workers’ needs.’’ bans in restaurants to the supporters of Mr. McConnell does not dispute this He went on to argue against the Gov- racial segregation, saying ‘‘some peo- characterization of the $2.5 million ernor’s appeal to the cost efficiency of ple might like having all-White res- payment. Despite claims by Attorney keeping agencies open by saying that taurants so they don’t have to sit with General Lynch that the payment would ‘‘[we] could bring child labor back, Blacks, but we don’t allow it.’’ not satisfy Motley Rice’s obligation to which would be cheaper, too.’’ A fourth concern relates to the man- the hospital, he said ‘‘I don’t see why it Mr. McConnell has often portrayed ner in which Mr. McConnell conducts shouldn’t, and I don’t see anything ne- his mass tort cases as movements his business. I am not suggesting ille- farious or wrong with that.’’ The con- against societal injustices. He has said gal or unethical behavior, but it is a troversy regarding the settlement in- that these cases represent ‘‘wrongs bit unseemly. He and his firm, Motley tensified when attorneys from another that need to be righted and that is how Rice, have often brought these con- firm who had worked on the case on a I see the law.’’ He has said that he is troversial mass tort litigations cases contingency fee basis disputed the pay- ‘‘an emotional person about injustice while representing State attorneys at any level—personal, societal, glob- ment, claiming it was a ‘‘legal fee’’ al.’’ These statements indicate an ac- general on no-bid contingency fee con- that they were not being allowed to tivist viewpoint. This is not what I tracts. According to an April 24, 2009, share in. Fifth, I am concerned that Mr. want in a Federal judge. Wall Street Journal editorial: Second, Mr. McConnell has a view of Mr. McConnell and his firm helped pioneer McConnell has approached this con- the law that I believe is outside the the practice of soliciting public officials to firmation process with either a lack of bring lawsuits in which private lawyers are mainstream of legal thought. Much of diligence or a lack of candor. I am par- paid a percentage of any judgment or settle- ticularly troubled by the way Mr. McConnell’s career has been devoted to ment. The law firms front the costs of litiga- bringing some of the most controver- McConnell handled himself before the tion and are compensated if the suit is suc- committee. I believe Mr. McConnell, at sial mass tort litigation of recent cessful. But such contingency-fee arrange- years. He has pursued the manufactur- ments inevitably raise questions of pay to best, misled the committee when he ers of asbestos, tobacco, and lead paint, play. And private lawyers with state power testified about his familiarity with a whose actions he believes to be ‘‘un- and a financial stake in the outcome of a set of stolen legal documents that his just.’’ In bringing many of these cases, case can’t be counted on to act in the inter- law firm obtained during the lead paint Mr. McConnell has often stretched est of justice alone. litigation. When asked about these doc- legal argument beyond its breaking There are numerous examples of uments during his committee hearing, point. An example is the ‘‘public nui- campaign contributions by Mr. McCon- he testified that he saw the documents sance’’ theory he pursued in the Rhode nell and/or his wife in States where he ‘‘briefly,’’ but that he was not familiar Island lead paint case. Well-respected or his firm was conducting or soliciting with them ‘‘in any fashion.’’ attorneys have said Mr. McConnell’s litigation. These include Rhode Island, But several months after his hearing, theory ‘‘just [did not] mesh with cen- Ohio, Washington, Vermont, and North Mr. McConnell was deposed, under turies of Anglo-American law’’ and a Dakota. oath, about those same documents. In former attorney general called the In another instance, as part of a set- his sworn deposition, Mr. McConnell lead-paint cases ‘‘a lawsuit in search of tlement in the Rhode Island lead paint testified that he was the first lawyer to a legal theory.’’ case, DuPont was to pay $2.5 million to receive the documents. He drafted a The Rhode Island Supreme Court the International Mesothelioma Pro- newspaper editorial citing information unanimously ruled against him in gram at a Boston hospital, which is run that came directly from those docu- State v. Lead Industries Associates, by a former Motley Rice expert asbes- ments. He testified that he reviewed Inc. In a well-reasoned opinion, the tos witness, Dr. David J. Sugarbaker. and signed a legal brief that incor- court found that there was no set of According to press reports, the pay- porated the stolen documents. And, facts that he could have proven to es- ment was intended to satisfy a $3 mil- even though he told the committee tablish that the defendants were liable lion pledge previously made by Motley that he was not familiar with the docu- in public nuisance. Rice to Dr. Sugarbaker to secure a seat ments ‘‘in any fashion,’’ during his dep- Mr. McConnell’s reaction to that on the executive advisory board of the osition he testified that he did not see opinion illustrates my third major con- program. any indication on the documents that

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Only could he know the documents were not as a personal injury lawyer and past state- one such Senator has spoken in opposi- confidential or secret, if, as he testified ments demonstrate his disregard for the rule tion since cloture was invoked. before the committee, he was not fa- of law, an activist judicial philosophy and With judicial vacancies at crisis lev- miliar with them ‘‘in any fashion’’? obvious bias against businesses. els, affecting the ability of courts to Given these facts, it is hard to square For the reasons I have articulated— provide justice to Americans around Mr. McConnell’s testimony before the one, his active partisanship which I be- the country, we should be debating and committee with his sworn deposition lieve he will carry with him into the voting on each of the 13 judicial nomi- testimony a couple months later. judiciary; two, his legal theories being nations reported favorably by the Judi- The litigation over these documents outside the mainstream; three, his lack ciary Committee and pending on the remains ongoing. We do not know how of judicial temperament; four, his ques- Senate’s Executive Calendar. No one it will conclude. We do not know tionable business practices; and five, should be playing partisan games and whether Mr. McConnell and his law his lack of candor with the com- obstructing while vacancies remain firm will be held liable for the theft of mittee—and other concerns which I above 90 in the Federal courts around these documents. But what is the Sen- have not expressed today, I shall op- the country. With one out of every nine ate going to do if we confirm this indi- pose this nomination. Federal judgeships still vacant, and ju- vidual, and at some later date he or his I will conclude by saying this. I have dicial vacancies around the country at law firm is found liable for theft? At supported the overwhelming majority 93, there is serious work to be done. that point, it will be too late. Members of President Obama’s judicial nomi- I will support the nomination of Jack will not be able to reconsider their nees. If it were up to me, I would not McConnell, just as I have each of the votes. The Wall Street Journal re- have nominated many of those individ- three times it was before the Judiciary cently opined that Mr. McConnell’s uals, but I supported them nonetheless. Committee. Mr. McConnell is an out- ‘‘changing story about his lead paint Mr. McConnell is in an entirely dif- standing lawyer. He is supported by his advocacy is enough by itself to dis- ferent category. I believe he misled the home State Senators, Senator REED qualify him from the bench.’’ I could committee when he testified before us. and Senator WHITEHOUSE. Each has not agree more. For that reason alone, I do not think spoken passionately and persuasively In another instance, I asked in writ- he should be rewarded with a lifetime in support of his nomination. ten questions the degree of awareness appointment to the Federal bench. As I noted earlier, Mr. McConnell’s or notification that he or his law firm Even if I did not have that concern, I nomination has been reported by a bi- had regarding rallies that were held could not support this nominee. partisan majority of the Judiciary outside or near the Superior Court in Mr. LEAHY. Mr. President, earlier Committee three times. His nomina- Providence during the lead-paint trials today, the Senate took a step toward tion also has bipartisan support from in September 2002. He replied ‘‘None.’’ restoring a longstanding tradition of those in his home State. Leading Re- However, there is email traffic that in- deference to home state Senators with publican figures in Rhode Island have dicates Mr. McConnell was, in fact, regard to Federal District Court nomi- endorsed his nomination. They include aware of the demonstrations. This nations. The Senate turned away from First Circuit Court of Appeals Judge email was produced in the lead paint what Senator REED rightly called a Bruce Selya; Warwick Mayor Scott litigation as part of Sherwin precipice. Eleven Republican Senators Avedisian; Rhode Island Chief Justice Williams’s motion for a new trial. In joined in voting to end a filibuster of Joseph Weisberger; former Rhode Is- other words, Mr. McConnell and his the nomination of Jack McConnell to land Attorneys General Jeffrey Pine firm had this in their possession when the District Court for the District of and Arlene Violet; former Director of he was asked about it by the com- Rhode Island. A supermajority of the the Rhode Island Department of Busi- mittee. Senate came together to reject a new Inconsistent answers were provided ness Barry Hittner; former Rhode Is- standard, which I believe is being un- land Republican Party Vice-Chair John with regard to Mr. McConnell’s rela- fairly applied to President Obama’s tionship with the ACLU as well. In re- M. Harpootian; and Third Circuit Court district court nominees. Now, more sponse to the question ‘‘Did you, in of Appeals Judge Michael Fisher. than a year after his nomination, near- fact, represent the ACLU in the mat- The strident opposition to this nomi- ly a year after his confirmation hear- ter?’’ Mr. McConnell said ‘‘I entered an nation has been fueled by the corporate ing, and after having had his nomina- appearance as counsel.’’ Yet in re- lobby, who oppose Jack McConnell be- tion reported positively by a bipartisan sponse to another question regarding cause he is a good lawyer. They oppose majority of the Judiciary Committee any matters in which he provided legal him because he successfully rep- three times, the nomination of Jack services to the ACLU or any affiliate resented plaintiffs, including the State McConnell will finally have an up-or- thereof, he replied, ‘‘I have never pro- of Rhode Island, in lawsuits against down vote in the Senate. vided legal services to the ACLU or any lead paint manufacturers. Some in the The Senate should have debate on ju- affiliate thereof.’’ I find this answer Senate may support the lead paint in- dicial nominations, and Senators confusing at best. dustry. Some in the Senate may oppose These types of responses indicate, at should be free to vote for or against those who wish to hold lead paint com- a minimum, a careless approach in his any nomination. A few hours ago the panies accountable for poisoning chil- response to the legitimate inquiries of Senate voted to invoke cloture and dren. That is their right. But as I said this committee. They could also be now we are proceeding to hold a final earlier in opposing the filibuster of this viewed as indicating a lack of candor. confirmation vote on this nomination. nomination, nobody should oppose Mr. Either way, they do not reflect the There was no need for cloture to be McConnell for doing what lawyers do— standard we should expect from an in- filed on this nomination. There were no vigorously represent clients. dividual who seeks confirmation to the ‘‘extraordinary circumstances’’ that I also hope no Senator opposes this Federal judiciary. held up this nomination for over a nomination based on what I believe to These concerns lead me to believe year. Why was the Senate not able to be a distortion of Mr. McConnell’s tes- this nominee is not qualified to serve reach a time agreement to debate and timony before the committee. As as a U.S. district judge. Finally, I note vote on this nomination last year? It chairman of the Judiciary Committee, Mr. McConnell received a low rating was the obstruction that prevented us I take seriously the obligation of nomi- from the ABA—a rating of substantial from doing so. It was wrong for the nees appearing before the Committee majority qualified, minority not quali- Senate to knuckle under to business to be truthful. I would be the first Sen- fied. lobbies and it was right for the Senate ator to raise an issue if there were any My concerns are shared by the U.S. to reject that opposition. legitimate question as to the accuracy Chamber of Commerce, and I take their In fact, in the days leading up to the of Mr. McConnell’s testimony. But views very seriously because the Cham- filibuster vote and in the hours since, there is not. ber only rarely takes positions on judi- no great number of Senators has spo- Far from establishing that Mr. cial nominations. In a letter to this ken in opposition to this nomination. McConnell was untruthful with the committee, the Chamber wrote: Only a handful of Senators from the committee, the deposition transcript

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There is no basis to be- necessarily absent: the Senator from of times I come to the Senate floor to lieve that Mr. McConnell did not an- Oklahoma (Mr. COBURN) and the Sen- speak about agriculture and to speak swer questions from members of the ator from Kansas (Mr. ROBERTS). about ethanol. What brings me to the committee truthfully. Some Senators The PRESIDING OFFICER (Mr. BEN- floor today is the ongoing crusade by may feel strongly that Mr. McConnell NET). Are there any other Senators in the Wall Street Journal, in an intellec- and his firm were wrong to sue lead the Chamber desiring to vote? tually dishonest way, to put out a lot paint companies, but there is simply no The result was announced—yeas 50, of facts about ethanol that are not basis for believing that Mr. McConnell nays 44, as follows: true. The latest barrage comes from an was untruthful with the committee. I [Rollcall Vote No. 66 Ex.] interview published last Saturday in hope other Senators will reject those YEAS—50 the Wall Street Journal with C. Larry conclusions. Baucus Harkin Nelson (FL) With more than 25 years of experi- Begich Inouye Pryor Pope, CEO of Smithfield Foods. In this Bennet Johnson (SD) article, there are a lot of ence as an outstanding litigator in pri- Reed Bingaman Kerry Reid misstatements about ethanol and vate practice, Mr. McConnell has been Blumenthal Klobuchar Rockefeller about ethanol causing the price of food endorsed by The Providence Journal, Brown (OH) Kohl Sanders to rise dramatically. I take the floor which wrote: ‘‘In his legal work and Cantwell Landrieu Schumer Cardin Lautenberg Shaheen now to rebut some of those community leadership [he] has shown Carper Leahy Stabenow misstatements and also to set the that he has the legal intelligence, char- Casey Levin Tester Conrad Lieberman record straight so that when a very acter, compassion, and independence to Udall (CO) Coons Manchin fine CEO such as Mr. Pope, even be a distinguished jurist.’’ This debate Udall (NM) Durbin McCaskill though I disagree with him on this ar- should focus on Mr. McConnell’s quali- Warner Feinstein Menendez ticle—he is a decent person, and he is a Franken Merkley Webb fications, experience, temperament, in- good corporate executive—the next tegrity, and character. Any fair evalua- Gillibrand Mikulski Whitehouse Hagan Nelson (NE) Wyden time, he will not speak. But I can also tion of his qualifications would reveal NAYS—44 say I do not like to have confronta- a nominee worthy of confirmation. tions with Smithfield Foods because Alexander Enzi McConnell I congratulate Jack McConnell and they do provide a lot of good-paying his family on his confirmation today. I Ayotte Graham Moran Barrasso Grassley Murkowski jobs in the Middle West, and they do a commend Senator REED and Senator Blunt Hatch Paul good job of adding value to agriculture. WHITEHOUSE for their steadfast support Boozman Hoeven Portman There has been a tradition at Smith- Brown (MA) Hutchison and all they have done to ensure that Risch field to kind of not appreciate Amer- the Senate vote on this nomination. Burr Inhofe Rubio Chambliss Isakson Sessions ican agriculture. It goes back to some The PRESIDING OFFICER. The Sen- Coats Johanns Shelby conversations I had with the previous Cochran Johnson (WI) ator from Rhode Island. Snowe Collins Kirk CEO by the name of Joe Luter. I re- Mr. REED. Mr. President, I ask unan- Thune Corker Kyl member Joe Luter coming to my office imous consent that the remaining time Cornyn Lee Toomey to try to explain to me some things he postcloture be yielded back and the Crapo Lugar Vitter Wicker thought I had misinterpreted of what Senate proceed to vote on the con- DeMint McCain he was really talking about regarding firmation of the nomination of John J. NOT VOTING—5 the family farmer and about the pro- McConnell, Jr., to be a U.S. District Akaka Coburn Roberts duction of hogs and whether he was Judge for the District of Rhode Island; Boxer Murray wanting to put the family farmer out that the motion to reconsider be con- The nomination was confirmed. of business. sidered made and laid upon the table The PRESIDING OFFICER. Under I remember just as if it was said to with no intervening action or debate; the previous order, the motion to re- me yesterday a statement he made that no further motions be in order to consider is considered made and laid when I said: You are running the fam- the nomination; that the President be upon the table, the President will be ily farmer, the family producer, the immediately notified of the Senate’s immediately notified of the Senate’s independent producer out of the hog action; the Senate then resume legisla- action, and the Senate will resume leg- business, and you want to control ev- tive session and proceed to a period of islative session. erything. He said to me something morning business for debate only until f along the lines: I do not want to put 7:30 p.m., with Senators permitted to your farmers out of business; I just speak for up to 10 minutes each. LEGISLATIVE SESSION want them feeding my pigs. He was ba- The PRESIDING OFFICER. Is there The PRESIDING OFFICER. Under sically saying he wanted the family objection? the previous order, the Senate will now farmer to be an employee of Smithfield Without objection, it is so ordered. return to legislative session. and not be an independent producer. The question is, Will the Senate ad- f Another point he tried to argue with vise and consent to the nomination of me—and I am referring to Mr. Pope’s John J. McConnell, Jr., of Rhode Is- MORNING BUSINESS predecessor, Mr. Luter—he also argued land, to be United States District The PRESIDING OFFICER. Under that Iowa farmers in a sense were not Judge for the District of Rhode Island? the previous order, the Senate is now smart enough to run a packing plant. Mr. WHITEHOUSE. Mr. President, I in a period for the transaction of morn- In fact, he offered to give a plant to a ask for the yeas and nays. ing business for debate only until 7:30 group of farmers and guaranteed it The PRESIDING OFFICER. Is there a p.m., with Senators permitted to speak would be out of business within 6 sufficient second? for up to 10 minutes each. months. There is a sufficient second. The Senator from Iowa. I do not know whether I have fault The clerk will call the roll. Mr. GRASSLEY. Mr. President, I ask with Mr. Pope as CEO of Smithfield The assistant legislative clerk called unanimous consent to speak for a and ethanol in this case as opposed to the roll. much longer period of time, for 45 min- Mr. Luter, his predecessor, and who is Mr. DURBIN. I announce that the utes. I may not use all that time, but going to raise pigs, but there may be Senator from Hawaii (Mr. AKAKA), the I would like to have permission to an institutional bias within the cor- Senator from California (Mrs. BOXER), speak for that time. poration of Smithfield.

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