S10614 CONGRESSIONAL RECORD — SENATE October 21, 2009 The clerk will report the motion to The legislative clerk read as follows: standards and testing that have re- invoke cloture. Conference report to accompany H.R. 2647, sulted from the Columbia Accident In- The legislative clerk read as follows: a bill to authorize appropriations for fiscal vestigation Board, I would ask? Is CLOTURE MOTION year 2010 for military activities of the De- there any evidence that the cargo rock- We, the undersigned Senators, in accord- partment of Defense, to prescribe military ets, promised to execute their first ance with the provisions of rule XXII of the personnel strengths for fiscal year 2010, and servicing mission sometime in 2010, are Standing Rules of the Senate, hereby move for other purposes. better than the manned rockets that to bring to a close debate on the motion to The PRESIDING OFFICER. The Sen- have been under development for over 4 proceed to Calendar No. 178, S. 1776, the ator from Alabama is recognized. years? What do the experts say? Medicare Physician Fairness Act of 2009. Mr. SHELBY. Mr. President, I ask NASA’s own Aerospace Safety Advi- Harry Reid, Debbie Stabenow, Roland W. unanimous consent that I be allowed to Burris, Patty Murray, Mark Udall, sory Panel issued a report in April of Mark Begich, Frank R. Lautenberg, speak as in morning business for about this year that stated that ‘‘Commercial Amy Klobuchar, Jack Reed, Carl 10 minutes. Orbital Transportation Services vehi- Levin, Jeff Bingaman, Sherrod Brown, The PRESIDING OFFICER. Without cles are not proven to be appropriate to Sheldon Whitehouse, Barbara Boxer, objection, it is so ordered. transport NASA personnel.’’ Will the Kirsten E. Gillibrand, Charles E. Schu- NASA AND THE FUTURE OF HUMAN SPACE current Administrator, Mr. Bolden, mer, Jeanne Shaheen, Richard Durbin. FLIGHT who helped write these words, now con- The PRESIDING OFFICER. By unan- Mr. SHELBY. Mr. President, I would tradict his statement 6 months after imous consent, the mandatory quorum like to take the opportunity to expand putting his name to them? call has been waived. upon some of my earlier comments, Further, I would ask, what happened The question is, Is it the sense of the and those of other Members of the Sen- to the April report findings in the Au- Senate that debate on the motion to ate, in relation to NASA and the future gustine Commission recommendations? proceed to S. 1776, the Medicare Physi- of human space flight. Have there been findings since April cian Fairness Act of 2009, shall be I am concerned with aspects of the that were available to the Augustine brought to a close? Augustine Commission’s report that Commission that the Aerospace Safety The yeas and nays are required under add credibility to far-reaching options Advisory Panel was not privy to? If so, the rule. for furthering our manned space flight I would certainly look forward to re- The clerk will call the roll. program. If Congress and the public are viewing this new data. The legislative clerk called the roll. to be asked to spend more for change, The Augustine Commission states in The yeas and nays resulted—yeas 47, then it should be change that will give its own report that while human safety nays 53, as follows: us the best chance to succeed and to can never be absolutely assured, it is [Rollcall Vote No. 325 Leg.] continue to lead the world in human ‘‘not discussed in extensive detail be- YEAS—47 space exploration. cause any concepts falling short in Akaka Gillibrand Mikulski The Chairman of the Review of U.S. human safety have simply been elimi- Baucus Hagan Murray Human Space Flight Plans Committee, nated from consideration.’’ Yet we see Begich Harkin Nelson (NE) the vehicles currently deemed unsafe Bennet Inouye Pryor Norm Augustine, announced that safe- Bingaman Johnson Reed ty would be paramount. Yet, from re- for our astronauts being used in the Boxer Kaufman Reid viewing the preliminary information, Augustine Commission’s report as a Brown Kerry Rockefeller there is only one area where mission viable option to go to low Earth orbit. Burris Kirk Sanders When asked on September 15, 2009, Cantwell Klobuchar safety was examined in the report. The Schumer Cardin Landrieu about the readiness of emerging space Shaheen Augustine report contained no safety Carper Lautenberg contractors to provide manned space Specter Casey Leahy comparison for the various vehicles Stabenow considered by the panel and no risk as- flights, former NASA Administrator Dodd Levin Mike Griffin said: Durbin Lincoln Udall (CO) sessment based on each option. The Udall (NM) Feinstein Menendez only safety issue identified was an as- To confuse the expectation that one day a Franken Merkley Whitehouse commercial transport of crew will be there, sessment of how ‘‘hard’’ the panel NAYS—53 to confuse that expectation with the assump- thought each overall mission would be tion of its existence today or in the near Alexander Dorgan McCaskill to achieve—not the safest means to term I think is—is risky in the extreme. Barrasso Ensign McConnell complete the mission successfully. Bayh Enzi Murkowski Current and former NASA Adminis- Bennett Feingold Nelson (FL) Since safety is the most important trators are on record registering their Bond Graham Risch issue, these omissions are starling to doubts regarding the safety of these Brownback Grassley Roberts some of us. Bunning Gregg new commercial contractors. Sessions When making comparisons on the Companies that are new contractors Burr Hatch Shelby Byrd Hutchison safety and performance of the various Snowe within the aerospace community have Chambliss Inhofe Tester options, fundamental design dif- been provided a pathway that could po- Coburn Isakson Thune ferences cannot be lumped together Cochran Johanns tentially lead to billions in govern- Collins Kohl Vitter and considered to be equal. Without an ment funding to pursue opportunities Conrad Kyl Voinovich honest and thorough examination of to support International Space Station Warner Corker LeMieux the safety and reliability aspects of the operations, starting with cargo. I be- Cornyn Lieberman Webb Crapo Lugar Wicker various designs and options, the find- lieve the contractors wishing to pursue DeMint McCain Wyden ings of this report are worthless. I human launches to low Earth orbit The PRESIDING OFFICER. On this would like to know why this blue rib- should prove they can establish a reli- vote, the yeas are 47, the nays are 53. bon panel did not examine these safety able record of meeting the cargo and Three-fifths of the Senators duly cho- aspects. trash hauling responsibilities to sup- sen and sworn not having voted in the Constellation’s vehicles have been port the station before we turn over affirmative, the motion is rejected. planned and scrutinized by multiple the Nation’s human space flight future The Senator from Alabama is recog- stakeholders, all with a single goal in to them. nized. mind: to provide a safe and reliable Pretty slides and unproven promises human space flight system for our Na- will not show us you have the right f tion. stuff to be entrusted with the lives of NATIONAL DEFENSE AUTHORIZA- Flashy PowerPoint presentations and our astronauts. If these companies can TION ACT FOR FISCAL YEAR boisterous claims by potential com- be successful—and there is no reason to 2010—CONFERENCE REPORT—Re- mercial providers about their easy and doubt that eventually, someday, some- sumed simple science solutions to human how they will be—then NASA, the Con- Mr. SHELBY. What is the pending travel into space sound like the answer gress, and the public might be willing business? to all of our problems. What sounds too to hand over launches to low Earth The PRESIDING OFFICER. The good to be true usually is. Are these orbit. That day is not today and it will clerk will report the pending business. proposals subject to the same safety not be for years to come.

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.042 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10615 But until that day arrives, I believe sure that this provision would go for- the crimes committed against people we should follow the path that has the ward as part of the conference report, because of sexual orientation, their safest manned vehicle, the vehicle fur- and I congratulate Senate Majority gender, their gender identity or their thest along in development, and, as Leader REID for his essential role in disability, which are much needed pro- mentioned several times by the Augus- this matter. tections. In addition, the legislation tine Commission itself, the program If I might, as I look over where my will provide resources to State, local, that, given appropriate funding, will dear friend and colleague, Senator Ken- and tribal law enforcement to address successfully provide a system that can nedy, sat for decades on this floor, I hate crimes. not only go to the space station but to wish to take the opportunity to re- President Obama has worked closely the Moon and beyond. member Senator Ted Kennedy, who with us to facilitate the quick passage Mr. President, I yield the floor. provided steadfast leadership on this of this vital hate crimes legislation. In Mr. LEAHY. Mr. President, yester- issue for more than a decade. I wish he his first few months in office, he has day, the Senate majority leader was re- could have been here to see this bill, acted to ensure that Federal benefits quired to file cloture to end a Repub- about which he was so passionate, fi- are awarded more equitably, regardless lican filibuster against the Department nally get enacted. I wish he was here in of sexual orientation, and now to en- of Defense authorization bill. We are in any event, but I am honored to be able sure that this hate crimes legislation two wars. We are in two wars, and we to see it through to the finish line for becomes law. Unlike previous years, are about to send, from my State of him. I know it meant a lot to him. I this bipartisan hate crimes bill does miss him, but I think this is a way we Vermont, 1,500 members of our Na- not face a veto threat. We have a Presi- can say to Senator Kennedy his good tional Guard to Afghanistan. We have dent who understands that crimes mo- work goes on. all kinds of things the Defense author- tivated by bias are particularly per- ization bill is designed for, including to Earlier this month was the 11th anni- versary of the brutal murder of Mat- nicious crimes and affect more than protect Americans serving abroad in just the victims and the victims’ fami- harm’s way. Yet the Republicans have thew Shepard. He was a college student who was beaten to death solely because lies. They affect all of us. They affect filibustered against the Department of us as a society. They weaken us and de- Defense authorization bill. The Senate of his sexual orientation. Matthew’s parents worked courageously and tire- mean us as a society, and we should all is going to vote on that tomorrow, pur- be opposed to such crimes. I expect the suant to our rules. I hope we will have lessly for this legislation, which aims to ensure this kind of despicable act President to sign this legislation with- a bipartisan vote proceeding to con- out delay. clude the debate on the conference re- will never be tolerated in this country. The bill was named for Matthew as Hate crimes instill fear in those who port which has been adopted by the well as for James Byrd, Jr. Mr. BYRD have no connection to the victim other House. I expect the Senate, on both was a Black man who was killed in 1998 than a shared characteristic, such as sides of the aisle, will vote to provide because of his race—another awful race or sexual orientation. For nearly the authorities necessary for our men crime which I will not even describe 150 years, we have responded as a na- and women in uniform. because it was so gruesome—but it gal- tion to deter and to punish violent de- I wonder what it would be like if you vanized the Nation against hateful vio- nials of civil rights by enacting Fed- were a soldier, a marine out on the lence. We appreciate and honor the im- eral laws to protect the civil rights of front lines in Afghanistan, and you get portant contribution of James Byrd’s all our citizens. The Matthew Shepard some news back home that one polit- family, as they have worked so hard for and James Byrd, Jr. Hate Crimes Pre- ical party is holding up the Depart- this legislation. vention Act of 2009 continues that ment of Defense authorization bill—the Unfortunately, the years since these great and honorable tradition—Mat- authorization for your equipment, the two horrific crimes have made clear thew Shepard, who was murdered be- authorization for your body armor, the that hate crimes remain a serious and cause of his sexual orientation; James authorization for your ammunition, growing problem. Only a few weeks Byrd, who was murdered because of his the authorization for your going for- ago, we saw—just a few blocks from race. In passing this legislation, we can ward. What would you think as the bul- this Capitol—a shooting at the Holo- say to them and everybody else that at lets are whizzing toward you? I know caust Memorial Museum, a place that last we in the Senate, the body that what I would think. I know what I should be sacred ground because of should be the conscience of the Nation, would have thought when my young what it remembers. We saw a vicious will show, once again, that America son was in the Marine Corps and got hate crime, with a man dying trying to values tolerance and protects all its called for service in the Middle East. I defend the Holocaust Memorial Mu- people. know what I would have thought of seum. I think this bipartisan legisla- The PRESIDING OFFICER. The Sen- people holding up the authorization for tion will help law enforcement respond ator from Wyoming is recognized. the equipment he needed. more effectively to this problem. It is a Also, as part of that conference re- Mr. ENZI. Mr. President, I ask unani- testament to the importance of this mous consent that Senator BARRASSO port, we are going to be adopting the legislation that the Attorney General Hate Crimes Prevention Act, including and I be permitted to speak as in morn- of the United States, Eric Holder, came ing business to offer some comments the provision added by the ranking Re- to the Judiciary Committee in June to publican on the Senate Judiciary Com- about Senator Cliff Hansen, who passed testify in favor of it. We have been away last night, and to agree to a reso- mittee, Senator SESSIONS, to create a urged to pass this bill by State and lution. new criminal offense for attacks local law enforcement organizations against servicemembers because of The PRESIDING OFFICER. Without and dozens of leaders in the faith and objection, it is so ordered. their service. I would hope we will be civil rights communities. I wish, when (The remarks of Mr. ENZI and Mr. moving forward on that. I had been a prosecutor in the State of BARRASSO are printed in today’s After more than a decade, Congress is Vermont, that we had had such legisla- RECORD under ‘‘Morning Business.’’) finally set to pass the Matthew tion so we could have called on it when Mr. ENZI. I suggest the absence of a Shepard and James Byrd, Jr. Hate we needed help. Crimes Prevention Act of 2009 as an This historic hate crimes legislation quorum. amendment to the Defense Authoriza- will improve existing law by making it The ACTING PRESIDENT pro tem- tion Act. I know the President will easier for Federal authorities to inves- pore. The clerk will call the roll. sign this, and I am proud the Congress tigate and prosecute crimes of racial or The assistant legislative clerk pro- has come together to show that vio- ethnic or religious violence. Victims ceeded to call the roll. lence against members of any group be- will no longer have to engage in a nar- Mr. MERKLEY. Mr. President, I ask cause of who they are is not going to be row range of activities, such as serving unanimous consent that the order for tolerated in our country. I thank Sen- as a juror, to be protected under Fed- the quorum call be rescinded. ator COLLINS for cosponsoring the eral law. The PRESIDING OFFICER (Mr. amendment with me. I commend Sen- It also focuses the attention and re- BURRIS). Without objection, it is so or- ator LEVIN for working so hard to en- sources of the Federal Government on dered.

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.045 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10616 CONGRESSIONAL RECORD — SENATE October 21, 2009 UNEMPLOYMENT It is paid for through extending a fee remind my colleagues and all Ameri- Mr. MERKLEY. Mr. President, I rise employers are already paying. So it cans about the fiscal realities in which to address the devastating jobs crisis puts no additional pressure on business we find ourselves. I promised I would hitting my home State of Oregon. Last but provides a critical safety net to our continue these efforts until we did Monday, we got new job numbers. On out-of-work Americans. something to address this crisis, so my the face, it was good news. The rate of Before I close, I wish to add one colleagues are going to see a lot of me unemployment dropped from 12.2 per- point: This bill will help these families between now and the end of the year. cent to 11.5 percent. Of course, we and workers get by, but it will also Hopefully something will get done on would all expect this is because there help our economy as a whole by put- this issue before the end of the year. were more jobs. ting money into the hands of those who Unfortunately, I return today to tell As it turns out, that is not the case. need it most. Unemployment benefits my colleagues that the bill to repeal Oregon lost 10,300 jobs in September. rapidly turn into bags of groceries, new the Medicare physician payment for- The unemployment rate dropped sim- and secondhand school clothes, needed mula the Senate considered earlier ply because, in the face of so much un- home repairs. All of that has a big im- today is a step in the opposite direc- employment, many Oregonians are giv- pact on small businesses in Douglas tion, and I was very pleased with the ing up in their search for a job. A year County and small towns such as vote on that. There were 47 votes for ago, 121,000 Oregonians were unem- Roseburg, Sutherlin, and Myrtle Creek. cloture and 53 votes in opposition, so ployed. This September, 211,000 Orego- That is why economists say extend- we had more opposed than we had for nians were out of work. Jobs are hard ing unemployment insurance is about cloture. to find in my home State right now. the best job-creating step the Federal When I spoke here earlier this fall, I The reasons for this are many. We Government could take. I understand discussed one of my children’s favorite are an export State that has seen our some of my colleagues on the other stories, ‘‘The Emperor’s New Clothes’’ trading partners hit hard with their side of the aisle are objecting to con- by Hans Christian Anderson. This little own economic problems, countries such sideration of this bill. They do not piece of artwork I have in the Chamber as South Korea whose GDP, year over want that bill to come to this floor. is in that fairytale. year, dropped up to 20 percent. I think we need to look more closely In the tale, an emperor goes about Mexican penalty tariffs have hit Or- at this issue. A bill extending unem- the land wearing a nonexistent suit egon’s agricultural sector, our fruits ployment benefits to assist in shoring sold to him by a new tailor who con- and our Christmas trees, particularly up the financial foundations of our vinced the monarch the suit was made hard. One of our main industries, the working families while they are still of the finest silks. The tailors—two timber industry, which produces di- searching for those jobs is essential. swindlers—tell the emperor that the mensional lumber for construction all We need to have not partisan potshots threads of his robes will be so fine that across this great United States, has but real help for working families. they will look invisible to those dim- been wiped out by the collapse of con- I appreciate that some Members of witted or unfit for their position. The struction and housing sectors of our this Chamber may come from States emperor and his ministers, themselves economy. that are doing quite well right now. unable to see the clothing, lavish the Allow me to zero in on the county There may be some States in America tailor with praise for the suit because where I was born, Douglas County. In that are not in the middle of a jobs cri- they do not want to appear to be dim- September, Douglas County had a sea- sis, but far too many of our States are witted or incompetent. sonally adjusted unemployment rate of similar to Oregon, where families need Word spread across the kingdom of 16.1 percent. One out of every six adults assistance. The delay of providing an the emperor’s beautiful new clothes. To was out of a job. Douglas County is a extension of unemployment benefits show off the extraordinary suit, a pa- big timber county. There is no market will cause real pain to families in those rade was formed. People lined the for dimensional lumber right now. The States and slow down the effort for our streets to see the emperor show off his recovery package has helped some by economy as a whole to recover. new clothes. Again, afraid to appear creating jobs preventing wildfires in I urge my colleagues to join in sup- stupid or unfit, everyone pretends to porting the working families of Doug- choked and overgrown second-growth see the suit. It is only when a child las County, the working families of Or- forests, but that is not enough. cries out ‘‘the emperor wears no We need the housing markets to turn egon, the working families of the clothes’’ does the crowd acknowledge around. We need to diversify Douglas United States of America, and support that the emperor is, in fact, naked. County’s economic base by investing in job creation by supporting this exten- Mr. President, much like the emperor clean energy technology that will turn sion of unemployment benefits. in this story, America’s elected leaders I yield the floor. biomass from the forests into renew- know we face a fiscal train wreck, but The PRESIDING OFFICER. The Sen- able fuels. we are choosing to ignore our current ator from Minnesota is recognized. We are hard at work on both fronts, economic reality. The American people (The remarks of Ms. KLOBUCHAR per- attempting to stabilize housing and taining to the submission of S. Res. 317 know ‘‘we are naked,’’ and so does the crafting new clean energy legislation. rest of the world, and our credibility are located in today’s RECORD under But in the meantime, workers in Doug- ‘‘Submission of Concurrent and Senate and our credit are at risk, but we las County are hurting. There are not Resolutions.’’) refuse to acknowledge what is obvious: enough jobs. It is a crisis for the Doug- Ms. KLOBUCHAR. I suggest the ab- When it comes to fiscal responsibility, las County families. sence of a quorum. ‘‘the emperor wears no clothes.’’ Yet In a crisis, we help our neighbors. The PRESIDING OFFICER. The earlier today we had a vote on whether One of the best ways we can help our clerk will call the roll. to proceed to a bill that would have neighbors and friends in Douglas Coun- The legislative clerk proceeded to added $247 billion to our Nation’s debt. ty and other counties throughout Or- call the roll. The interest alone adds another $50 bil- egon and other counties throughout Mr. VOINOVICH. Mr. President, I ask lion in debt over the next 10 years. We the United States of America is to pass unanimous consent that the order for are just going to put it on the national an extension of unemployment bene- the quorum call be rescinded. credit card and let our children and fits. The PRESIDING OFFICER. Without grandchildren take care of it. We are Let me be clear: Oregonians want objection, it is so ordered. the biggest credit card abusers in the jobs. That is our first and best answer. Mr. VOINOVICH. Mr. President, I ask world, and the credit cards we are If there are jobs out there, citizens will unanimous consent that I be permitted using are the credit cards of my chil- line up to get them. But when there are to speak as in morning business for up dren and grandchildren and other no jobs, we need to have help. The ex- to 10 minutes. Americans. I am pleased, as I said, that tension of unemployment benefits is The PRESIDING OFFICER. Without a majority of my colleagues joined me such help. It would extend benefits for objection, it is so ordered. in opposing moving forward with this 14 weeks for all States and 20 weeks for MEDICARE PHYSICIAN PAYMENT FIX legislation. high unemployment States such as the Mr. VOINOVICH. Mr. President, sev- The President has said the health State of Oregon. eral weeks ago I came to the floor to care reform bill would not add one

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We need to take a comprehen- unsustainable course, we are going to I suppose it is easy to make claims sive look at the program. see interest rates start to skyrocket in about health care reform legislation I will be the first to admit we must this country. Over half our debt is in not adding to the deficit when Congress honor our commitment to our Nation’s the hands of the Chinese and the Indi- takes the parts that cost money off the seniors and ensure they have access to ans and the OPEC nations and Japan. table, but to do so is fiscally irrespon- quality health care services. I have We are in bad shape. The public under- sible and morally corrupt. heard it firsthand from family and stands it. They understand. They un- The physician fix was left out of the friends that in some places in Ohio, derstand that the emperor has no Finance Committee, I suspect, not be- Medicare beneficiaries face delays for clothes. We are not doing anything cause my colleagues do not agree it is physician services right now. In fact, about the problem, and they get it a fundamental part of health care re- 6.8 percent of Ohioans live in a des- today. form but because it would have cost ignated primary care shortage area. We I happen to believe that the undertow money my colleagues did not want to need more doctors and nurses. The sit- that is out there in the country today account for in the bill. If the Finance uation is only going to get worse. Thir- in terms of health care reform and in Committee would have included the fix ty-nine percent of physicians are over terms of climate change is the fact in their bill, the $81 billion surplus the age of 50 and considering limiting that the American people understand they say the bill will create would have the amount of time they see patients. that things aren’t right. The American quickly turned into a deficit. That is For these reasons, I have been advo- people in the Presiding Officer’s State, unacceptable, and I am not the only cating for the past several years that in my State, do you know what they one who feels that way. The Wash- we need a permanent and commonsense are doing? They are buying less. They ington Post discussed the effort to take fix for the flawed sustainable growth are not putting it on their cards. They the fix for the sustainable growth for- rate formula, which we refer to as the are trying to save some money. They know they have been on a binge. They mula—the formula that calculates re- doc fix. I do not think there is anyone look to us and they say, What are you imbursement for physicians under on either side of the aisle who dis- doing? What are you doing? We care Medicare—out of the larger health care agrees. We need to do that. Yet this about ourselves, but we also care about bill as a ‘‘shell game’’ and ‘‘budgetary bill we just considered is not the way our children and grandchildren. It is smoke and mirrors.’’ This is just an- to do it. Any fix must be part of a larg- not fair to those individuals to do what other illustration of our out-of-control er conversation, and it must be done in we are doing. spending that has caused our national a way that does not simply add to the We have a moral obligation to do debt to skyrocket. burden we are already placing on our what we can to try to make sure this One of the reasons I ran for the Sen- children and grandchildren. generation’s standard of living will not ate and came to Washington a long I am pleased that in a letter last be less than those who came before time ago was to reduce the Federal week to Senator REID, 10 Senate Demo- them. Many people believe that is debt and balance our budgets. That is crats joined me in this conclusion, ask- going to be the case. The passage of the what I did when I was mayor of Cleve- ing the majority leader that he get se- legislation to fix the physician pay- land. That is what I did when I was rious about the Federal debt and tax ment formula by borrowing more Governor of Ohio. When I arrived in the and entitlement reform. They believe, money will only help guarantee that Senate in 1999, the gross national debt as I do, that we cannot continue to they are right. stood at $5.6 trillion, or 61 percent of keep spending without consequence. As We have a serious problem. I will be the GDP. Today, the gross national I have been advocating, we must give coming to the floor over and over to debt is nearly $11.8 trillion, and the larger reform serious thought before it see if we can’t do it. I am going to do President will be coming before us to is too late. We must act on the tough what I can to convince the President raise the national debt to, I think, over issues today. that he ought to participate in setting $12 trillion. The 2009 deficit stands at As Gerald Seib noted in the Wall up this commission, working with Sen- about $1.4 trillion. Street Journal yesterday: ator GREGG and Senator KENT CONRAD, I just got back 2 weeks ago from Ath- Administration officials also know they to see if we can’t get them together to ens, Greece, and an Organization for have little choice but to start showing early agree on what this commission would Security and Co-operation meeting in next year that they take the deficit seri- look like. We are hoping the President Athens. When I shared with my col- ously, for both political and economic rea- sons. is alert enough to know that if he leagues that we borrowed $1.4 trillion doesn’t deal with this problem, it is not to run the government—and they were That is why Senator LIEBERMAN and only a substantive problem that needs all asking for help—they were as- I have introduced legislation called Se- to be dealt with but a major political tounded. They just could not believe it. curing America’s Future Economy, problem that he is going to have. The I also reminded them that debt was which basically creates a bipartisan American public demands that we start like the debt we racked up during the commission that would deal with the talking about doing something about Second World War. In other words, that deficit and deal with tax reform; that if this problem and they know we are is the period to which you can compare a supermajority of those agree to the running out of time. it. So the 2009 deficit stands at $1.4 tril- solution, that would get expedited pro- I yield the floor. lion and at $9.1 trillion over the next cedure on the floor of the Senate and The PRESIDING OFFICER. The Sen- decade, which does not include the bor- move to an up-or-down vote, very much ator from North Dakota is recognized. rowing from the trust funds and which like we do with the BRAC process. We INTERNET NEUTRALITY is three times the largest deficit in our have been trying to do this now for 4 Mr. DORGAN. Mr. President, tomor- history. years. We have talked to the OMB Di- row at the Federal Communications It does not take an economist to re- rector, Peter Orszag. It is interesting. Commission there will be a vote on a alize our current course is Two years ago he was with a lot of proposed rulemaking. It is a rule- unsustainable. The Medicare Program former CBO Directors and said, We making on something called net neu- is scheduled to be bankrupt by 2017. I have to have a commission. It is the trality. Let me put that in English, if cannot understand why we are not only way we are going to deal with en- I might. It is about Internet freedom. I talking about that. That means the titlements; it is the only way we are wish to talk for a moment about the supply of money coming in is not going going to deal with tax reform, yet we importance of this. to be enough to take care of the de- are not able to convince the adminis- One would think, given the reaction mand—just what is happening now in tration to move forward with us to by some and dozens and dozens of let- Social Security. In the next couple tackle this very heavy responsibility. ters that are now going to the FCC,

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.050 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10618 CONGRESSIONAL RECORD — SENATE October 21, 2009 that what is going to happen tomorrow I said: What are you doing? can set up a toll booth. Anyone has is some unbelievable vote on some con- Well, I have a business, she said. freedom and access anywhere on the troversial proposal that has had no dis- I said: Well, what kind of business do Internet. cussion. It is not that at all. It is a no- you have? That is the way the Internet was de- tice of proposed rulemaking. It is the Well, I sell on the Internet. I pur- veloped. That is its origin and that is beginning of a process to describe a chase jewelry and then I sell it on the the way most of its life has existed. rulemaking on what is called net neu- Internet. Then the Federal Communications trality or the principle of non- Sure enough, in the little porch com- Commission came along and said, We discrimination with respect to the ing into the home she had cardboard are going to redefine the Internet as an Internet. boxes and tape and the kinds of things information service rather than a tele- I wish to describe how important you would do to box something up and phone service and the result is the non- that is. The Internet is an unbelievable send it. Here in this little town in discrimination rules fell off the chart new invention in our lifetime. It was southwestern North Dakota, a town of because they attached to the telephone created by the Federal Government. A 300 people, a woman, in the home I service. So some of us have said, Well, bunch of scientists and engineers in the grew up in, was running a business. we certainly want to maintain and con- Federal Government described this I said: How do you do? tinue nondiscrimination rules. I mean, method of communicating one to an- She said: Pretty well. This income who would be for discrimination, right? other with computer technology and it supplements my husband’s income. She So we want to maintain the non- became the Internet. The Internet de- said: I sell on eBay. discrimination rules. We want to, with veloped over a number of years in a Well, you know what? In that little what is called network neutrality or completely free and open architecture. kitchen, anybody in the world can find net neutrality, restore the non- That meant that anyone could go to her business—anybody in the world can discrimination rules and the basic free- anyplace and see anybody on the Inter- find that business. Why? Because the dom under which the Internet devel- net. So the stories are legend. Internet is open. The architecture has oped in the first instance. That has It was, I believe, 11 years ago when never been closed. The whole notion of been our effort. That is what the Chair- Larry and Sergey, two young men in the Internet is this notion of freedom, man of the Federal Communications college in a dormitory room started a of liberty to go anywhere you want to Commission is attempting to do. It is company. They moved it to a garage go. In the last 31⁄2 years I have written to begin tomorrow with a notice of pro- that had a garage door opener, and it two books and I have discovered in the posed rulemaking. It doesn’t mean he had eight employees, and they had this writing of books how unbelievable the is saying, Here is exactly what we are idea, a new company, a new search en- Internet is to be able to go to anywhere going to do; it is saying, Let’s propose gine. It had eight employees and it was in the world and do research. If you a rulemaking and that rulemaking in a garage with a garage door opener want to know something, go there, and process will allow everybody to weigh 11 years ago. Well, now it is called nobody is going to stop you from going in, to make comments, to be involved Google. wherever you wish to go. Put it in a with the question of exactly what kind But it is not just Larry and Sergey search engine, go find it, and you will of a rule they may or may not write. having a dream and a vision. It is so find it in some crevice on the Internet. I think what the Federal Commu- many others as well. It is Jeff Bezos Somebody out there has put it on the nications Commission is doing tomor- who drove to California with an idea Internet for you to see. It is the most row is exactly the right thing. I know and that idea became Amazon.com, unbelievable research tool I have ever there are some who are pushing back. selling books, and then selling almost found. In fact, there are some who have said, everything. Or it became someone with So, yes, it is Google, it is Amazon, it We want to set up a toll booth. There an idea about having an auction on the is eBay, it is the big companies, but are some CEOs of some large compa- Internet, and it became eBay, and most much more than that, it is the back- nies who have suggested, You know of us know about eBay. Or it became bone that allows people all over this what. Those wires belong to us. We Mark Zuckerberg who had an idea of country and the world to do business. want to be able to have some toll something called Facebook. Well, I am Yes, from their kitchen, from their ga- booths and so on. talking about huge successes. But for rage. Some of those businesses will I don’t believe they should be able to every one of those—Facebook, eBay, grow to become names we don’t now set up any impediments. By that I am Amazon, Google—for every one of those know but will, because they will be not suggesting they don’t have a right large companies that have now grown successful. They will be the next inven- to have security for their networks; on the Internet, there are millions of tion, the next opportunity on this they certainly do. I am not suggesting people out there who are conducting a thing called the Internet. they don’t have a right to do certain business in their kitchen, in their dorm Here is the question: The Internet kinds of inspections to make sure that room, in their garage, because they are was created under circumstances that the kinds of things that are prohib- the next enterprising person to succeed required rules of nondiscrimination. ited—child pornography and others— on the Internet. For the first portion of its birth and are stopped on the Internet. But what I The question is this: If there is some- then origin, it was an Internet that was am saying is the architecture under one in my hometown—and let me de- described as a telephone service and it which the Internet itself was created is scribe that someone, because it hap- was subject to rules that had non- an architecture all of us should aspire pened to be someone who is now occu- discrimination, so no one could dis- to continue, and that is nondiscrimina- pying the home that I grew up in; a criminate. It was completely open, tion rules and transparency. This is very small, two-bedroom home in a completely free. Its architecture was very simple. So tomorrow there will be small town of 300 people. I had not been available to anyone at any time. Any- a vote at the FCC. I would say to the back for some long while to see the body can go anywhere at any time. No- chairman of the FCC and to all of the home. So I knocked on the front door. body has a toll booth, nobody is a gate- Commissioners that you are doing the When the woman answered, I asked if I keeper. It is completely open and free. right thing by proceeding to make cer- could see the home that I grew up in, The biggest company over here and the tain that the future of the Internet is where I spent my first 17 years, and she smallest enterprise over here—big cor- open and has free access with non- said: Of course. Come on in. So I came porate executives wearing gray suits discrimination rules and transparency. in and she was doing something that I making lots of money, and two people Here are a couple of letters I wish to found kind of interesting. She had in in a dorm room or someone in a small have printed in the RECORD, if I might the small kitchen on the table a cam- kitchen in a small town—they are ask unanimous consent. One is a letter era, and the camera was pointed at an equal. Anybody has access to both to Chairman Genachowski and this let- aperture with an arm and on the arm sites, or all sites. That is called non- ter is dated October 19th: was hanging a bracelet, a little gold discrimination and the nondiscrimina- We write to express our support for your bracelet, and she was taking a picture tion rules say no one can set up a bar- announcement that the FCC will begin a of the gold bracelet. rier. No one can set up a gate. No one process to adopt rules to preserve an open

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.051 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10619 Internet. We believe a process that results in Netflix, Inc.; Stan Glasgow, President new tools and opportunities for communica- common sense baseline rules is critical to & COO, Sony Electronics; Carl J. tion, education, health care, business, and ensuring that the Internet remains a key en- Grivner, CEO, XO Communications; every other human endeavor. gine of economic growth, innovation, and Ashwin Navin, Co-Founder, BitTorrent, We look forward to working with you in global competitiveness. Founding Partner, i/o Ventures; Kevin developing clear rules to protect the open Let me not read it all, but let me Rose, Founder, Digg; Mark Zuckerberg, Internet, and in building together a frame- work to secure its future and promote its read the final paragraph of this letter: Founder & CEO, Facebook; Reid Hoff- man, Executive Chairman, Linkedin; continued growth. America’s leadership in the technology Howard Janzen, CEO, One Communica- Sincerely, space has been due, in large part, to an open tions; Thomas S. Rogers, President & Immad Akhund, Co Founder, Heyzap; Internet. We applaud your leadership in ini- CEO, TiVo Inc. Brian Ascher, Venrock; Aneel Bhusri, tiating a process to develop rules that ensure Steven Chen, Founder, YouTube; James Partner, Greylock Partners (and Co- the qualities that have made the Internet so F. Geiger, Chairman & CEO, Cbeyond; Founder and Co-CEO, Workday); Matt successful are protected. John Donahoe, CEO, eBay, Inc.; Blumberg, Chairman & CEO, Return That is a letter from a large group of Caterina Fake, Founder, Flickr; Scott Path, Inc.; Brad Burnham, Union people who run Internet companies and Heiferman, CEO & Co-Founder, Square Ventures; Stewart Butterfield, applications, from Craigslist, Meetup; David Ulevitch, Founder, Co-Founder, Flickr; Ron Conway, Founder, SV Angel LLC; John Doerr, EchoStar, Google, Mozilla, Skype, OpenDNS; Evan Williams, Co-Founder & CEO, Twitter; Mark Pincus, CEO, Partner, Kleiner Perkins Caufield & Amazon, Expedia, Netflix, Sony Elec- Zynga. Byers; Timothy Draper, Founder and tronics, XO Communications, Mr. DORGAN. Mr. President, this is a Managing Director, Draper Fisher Facebook, eBay, and so many others; letter from the largest venture capital Jurvetson; Caterina Fake, Co-Founder, Twitter, and Meetup, so many different Flickr & Hunch. funds in the country that have made folks who know of what they are Brad Feld, Co-Founder, Foundry Group; substantial investments in these com- speaking. I support this letter and Peter Fenton, Benchmark Partners; panies that have helped the Internet commend it to the Chairman of the Eyal Goldwerger, CEO, TargetSpot; grow; Jude Gomila, Co founder, Heyzap; FCC. Again, I ask unanimous consent Dear Chairman Genachowski: We write to Mark Gorenberg, Managing Director, that it be printed in the RECORD. express our support for the Commission’s on- Hummer Winblad; Jordan Greenhall, There being no objection, the mate- going efforts to adopt rules to safeguard the Founder of Divx; Bill Gurley, Bench- rial was ordered to be printed in the open Internet. As business investors in tech- mark Partners; Jed Katz, Managing Di- RECORD, as follows: nology companies, we have first-hand experi- rector, Javelin Venture Partners; Dany OCTOBER 19, 2009. ence with the importance of guaranteeing an Levy, Founder, DailyCandy; Mario Hon. JULIUS GENACHOWSKI, open market for new applications for serv- Marino, Member, Executive Advisory Chairman, Federal Communications Commis- ices on the Internet. Clear rules to protect Board, General Atlantic LLC. sion, Washington, DC. and promote innovation at the edges of the Jason Mendelson, Managing Director, DEAR CHAIRMAN GENACHOWSKI: We write to Internet will reinforce the core principles Mobius Venture Capital; Michael express our support for your announcement that led to its extraordinary social and eco- Moritz, Sequoia Capital; Kim Polese, that the Federal Communications Commis- nomic benefits. Open markets for Internet CEO of Spike Source, Inc.; Avner sion will begin a process to adopt rules that content will drive investment, entrepreneur- Ronen, CEO of Boxee; Pete Sheinbaum, preserve an open Internet. We believe a proc- ship and innovation. For these reasons, Net Former CEO of Daily Candy; Ram ess that results in common sense baseline Neutrality policy is pro-investment, pro- Shriram, Founder, Sherpalo; David rules is critical to ensuring that the Internet competition, and pro-consumer. Sze, Partner, Greylock Partners; Al- remains a key engine of economic growth, I ask unanimous consent to have bert Wenger, Union Square Ventures; innovation, and global competitiveness. Steve Westly, Managing Director, The printed in the RECORD this letter from Westly Group; Fred Wilson, Union For most of the Internet’s history, FCC the venture capital firms that know a rules have ensured that consumers have been Square Ventures. able to choose the content and services they lot about the Internet. Mr. DORGAN. Mr. President, finally, want over their Internet connections. Entre- There being no objection, the mate- I ask unanimous consent to have print- rial was ordered to be printed in the preneurs, technologists, and venture capital- ed in the RECORD a letter from the ists have previously been able to develop new RECORD, as follows: folks who created the Internet. The list online products and services with the guar- OCTOBER 21, 2009. is headed by Vinton Cerf, who is often antee of neutral, nondiscriminatory access Hon. JULIUS GENACHOWSKI, called the ‘‘father of the Internet.’’ I by users, which has fueled an unprecedented Chairman, Federal Communications Commis- era of economic growth and creativity. Ex- sion, Washington, DC. know Vint Cerf. He is an extraordinary isting businesses have been able to leverage DEAR CHAIRMAN GENACHOWSKI: We write to man. Others signing this letter include the power of the Internet to develop innova- express our support for the Commission’s on- Stephen Crocker, David Reed, Lauren tive product lines, reach new consumers, and going efforts to adopt rules to safeguard the Weinstein, and Daniel Lynch: these are create new ways of doing business. open Internet. As business investors in tech- all Internet pioneers. They were there An open Internet fuels a competitive and nology companies, we have first-hand experi- at the beginning. They created this un- efficient marketplace, where consumers ence with the importance of guaranteeing an believable engine of opportunity for make the ultimate choices about which open market for new applications and serv- the American people. They write a products succeed and which fail. This allows ices on the Internet. Clear rules to protect businesses of all sizes, from the smallest and promote innovation at the edges of the similar letter saying: startup to larger corporations, to compete, Internet will reinforce the core principles As individuals who have worked on the yielding maximum economic growth and op- that led to its extraordinary social and eco- Internet and it predecessors continuously be- portunity. nomic benefits. Open markets for Internet ginning in the late 1960s, we are very con- America’s leadership in the technology content will drive investment, entrepreneur- cerned that access to the Internet be both space has been due, in large part, to the open ship and innovation. For these reasons, Net open and robust. We are very pleased by your Internet. We applaud your leadership in ini- Neutrality policy is pro-investment, pro- recent proposal to initiate a proceeding for tiating a process to develop rules to ensure competition, and pro-consumer. the consideration of safeguards to that end. that the qualities that have made the Inter- Permitting network operators to close net- This is a letter to Chairman net so successful are protected. work platforms or control the applications Genachowski from the folks I men- Sincerely, market by favoring certain kinds of content tioned. I ask unanimous consent to Jared Kopf, Chairman & President, would endanger innovation and investment have printed in the RECORD this letter. AdRoll.com; Craig Newmark, Founder, in an investment sector which represents There being no objection, the mate- Craigslist; Charles E. Ergen, Chairman many billions of dollars in economic activ- & CEO, EchoStar Corporation; Eric ity. The Commission is absolutely correct to rial was ordered to be printed in the Schmidt, CEO, Google Inc.; John Lilly, propose clear rules that require competition. RECORD, as follows: CEO, Mozilla Corporation; Josh Silver- The promise of permanently securing an OCTOBER 15, 2009. man, CEO, Skype; Gilles BianRosa, open Internet will deliver consumers and Hon. JULIUS GENACHOWSKI, CEO, Vuze, Inc.; Jeff Bezos, Founder & innovators a perfect free market that drives Chairman, Federal Communications Commis- CEO, Amazon.com; Jay Adelson, CEO, investment, job creation, and consumer wel- sion, Washington, DC. Digg; Erik Blachford, Former CEO, fare. These principles should apply across all DEAR MR. CHAIRMAN: We appreciate the op- Expedia. Internet access networks, wired or wireless. portunity to send you this letter. As individ- Barry Diller, Chairman & CEO, IAC; Investment and innovation at the edge of uals who have worked on the Internet and its Reed Hastings, Co-Founder & CEO, the network will create not just jobs but also predecessors continuously beginning in the

VerDate Nov 24 2008 03:33 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.052 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10620 CONGRESSIONAL RECORD — SENATE October 21, 2009 late 1960s, we are very concerned that access is a controversial issue, although it ramifications for our ability to detain to the Internet be both open and robust. We should not be. foreign nationals safely outside our are very pleased by your recent proposal to The basic principle of freedom on the borders during wartime at the U.S. initiate a proceeding for the consideration of Internet, open architecture on the naval station at Guantanamo Bay, safeguards to that end. In particular, we believe that your net- Internet, the openness with which this Cuba. The case also provides insight work neutrality proposal’s key principles of Internet was created ought to persuade into the question of the best place to ‘‘nondiscrimination’’ and ‘‘transparency’’ are everyone to say: Yes, let’s restore the detain and try foreign terrorists. necessary components of a pro-innovation conditions under which the Internet The case involves a group of ethnic public policy agenda for this nation. This has always operated, up until recently; Chinese Uighurs who are detained at initiative is both timely and necessary, and that is, nondiscrimination and trans- Guantanamo Bay. The Uighurs won we look forward to a data-driven, on-the- parency. their habeas corpus petition to be re- record proceeding to consider all of the var- There are some interests in this leased from custody. Many of these ious options. country, I understand, some economic We understand that your proposal, while Uighurs, however, had received ter- not even yet part of a public proceeding, al- interests that say: No, we don’t want rorist training in the Tora Bora Moun- ready is meeting with strong and vocal re- that. We want some opportunity to tains of Afghanistan, including weap- sistance from some of the organizations that perhaps go a different direction. We ons training on AK–47 assault rifles at the American public depends upon for had one CEO in this country say: You a camp run by the head of a group that broadband access to the Internet. As you know what. I want some of these com- our State Department has designated a know, the debate on this topic has been panies on the Internet to pay me for terrorist organization and that the lengthy, and many parties opposing the con- the right to move on my lines. Once United Nations has listed as a group cept have systematically mischaracterized that starts, once we go down that road the views of those who endorse and support associated with Osama bin Laden, al- your position. with those who have the muscle or the Qaida, or the Taliban. We believe that the existing Internet ac- strength to decide who is going to cross Not surprisingly, it has not been easy cess landscape in the U.S. provides inad- and who is not, who can get by their to find countries eager to accept the equate choices to discipline the market toll booth and who cannot, then I am Uighurs into their civilian populations. through facilities-based competition alone. telling you there are Larrys and So the Uighurs sued to be released into Your network neutrality proposals will help Sergeys in a dorm room out there the United States. Federal District protect U.S. Internet users’ choices for and someplace or a woman in a kitchen Court Judge Ricardo Urbina granted freedom to access all available Internet serv- ices, worldwide, while still providing for re- with a small business that is not going the Uighurs’ request and ordered them sponsible network operation and manage- to succeed. And that innovation, that released in our country. It did not mat- ment practices, including appropriate pri- new company, that new business for ter to Judge Urbina that the Uighurs vacy-preserving protections against denial of this country, the expansion of the did not have an immigration status or service and other attacks. Internet and opportunity that comes that they had received military-style One persistent myth is that ‘‘network neu- with it will not exist. Why? Because we weapons training or that they had as- trality’’ somehow requires that all packets failed to continue the open architec- sociated with a terrorist group. He was be treated identically, that no prioritization ture and the basic freedoms on which persuaded by their argument that jus- or quality of service is permitted under such a framework, and that network neutrality the Internet was created and on which tice required that they be released would forbid charging users higher fees for we still ought to govern the future of right here in the United States. faster speed circuits. To the contrary, we be- the Internet. Fortunately, the DC Circuit Court re- lieve such features are permitted within a What Julius Genachowski, the new versed Judge Urbina. It ruled that even ‘‘network neutral’’ framework, so long they chairman, is doing tomorrow at the though the Uighurs had won their ha- are not applied in an anti-competitive fash- FCC is exactly the right thing. He is beas corpus petition, they did not have ion. not mandating some specific menu. He a right to be released into the United We believe that the vast numbers of inno- is beginning a rulemaking process States. In other words, it ruled that vative Internet applications over the last decade are a direct consequence of an open which, at the end, in my judgment, will even if the government had to release and freely accessible Internet. Many now- result in the restoration of two basic them, it did not have to release them successful companies have deployed their principles: nondiscrimination on the into Alexandria or Annandale or Falls services on the Internet without the need to Internet and transparency. Is there Church or anywhere else in Northern negotiate special arrangements with Inter- anyone who believes those principles Virginia that the Uighurs might like to net Service Providers, and it’s crucial that are not fair, are not reasonable? I don’t go. future innovators have the same oppor- think so. The DC Circuit’s ruling is important tunity. We are advocates for ‘‘permissionless There has been a flurry of protests, to national security in general and to innovation’’ that does not impede entrepre- an unbelievable dust created by a lot of the debate over where we should try neurial enterprise. We commend your initiative to protect and noise, a lot of crowd noise around this foreign terrorists in particular. The DC maintain the Internet’s unique openness, and issue. I hope perhaps the chairman and Circuit noted that the Supreme Court support the FCC process for considering the those on the Commission who believe has held that foreign nationals, with- adoption of your proposed nondiscrimination we ought to move in this direction un- out property or presence in the United and transparency principles. derstand there is very substantial sup- States, have fewer legal rights than Respectfully, port for what they are trying to do. foreign nationals who are present on VINTON G. CERF, That support exists in a letter I am American soil. Internet Pioneer. sending today with some of my col- The DC Circuit also noted that the STEPHEN D. CROCKER, Internet Pioneer. leagues to say that support is here. Supreme Court has repeatedly ruled DAVID P. REED, Work that Senator SNOWE and I have that a sovereign has a right to control Internet Pioneer. done on this issue will be reflected as its borders, and that means it has a LAUREN WEINSTEIN, well in a message tomorrow. right to bar from being released into Internet Pioneer. I just want the Chairman to know: its territory foreign nationals whom it DANIEL LYNCH, Keep going. You are doing the right has not admitted onto its soil. Internet Pioneer. thing. Don’t worry about some of the In short, because these detainees re- Mr. DORGAN. Mr. President, let me dust that is out there. Do the public main at Guantanamo outside our bor- finally say this: I understand this issue business, do the right thing, and this ders, they have fewer legal rights than has been controversial. I and Senator country will be best served. they would have if they were brought SNOWE have worked on this issue for a Mr. President, I yield the floor. within our borders, including the right long while. The only time it has been The PRESIDING OFFICER. The Re- to be released into our civilian popu- voted on in the Congress was an at- publican leader. lation. tempt by us to add an amendment in a SUPREME COURT APPEAL We don’t know how the DC Circuit Commerce Committee markup. This Mr. MCCONNELL. Mr. President, yes- would have ruled if the Uighurs had was about 21⁄2 years ago. We had an 11- terday the Supreme Court announced been present on U.S. soil. But we do to-11 tie. Why was there a tie vote? It it would hear a case that has critical know a couple of things. First, the DC

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\A21OC6.009 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10621 Circuit’s reason for not releasing them leaves them at Guantanamo and tries a building in Springfield, Ill., is only the lat- into the United States was that they them at the modern, multimillion-dol- est example of that problem. had not been brought into the United lar courtroom at Guantanamo Bay Moreover, the rules for conducting crimi- nal trials in federal courts have been fash- States. Let me say that again. The DC under the very military commission ioned to prosecute conventional crimes by Circuit’s reason for not releasing them rules it has now rewritten to its liking conventional criminals. Defendants are in the United States was that they had and which we will soon vote on when granted access to information relating to not been brought here. Second, other we consider the Defense authorization their case that might be useful in meeting foreign nationals who have committed conference report. the charges and shaping a defense, without murder and other serious crimes who The Supreme Court should affirm the regard to the wider impact such information were in the United States have been re- DC Circuit Court’s decision and let the might have. That can provide a cornucopia of valuable information to terrorists, both leased here when our government could political branches maintain control those in custody and those at large. not transfer them to another country, over our borders, including deciding Thus, in the multidefendant terrorism either because they did not want to go whether and how foreign nationals out- prosecution of Sheik Omar Abdel Rahman to another country or because other side our borders may be admitted with- and others that I presided over in 1995 in fed- countries did not want to take them. in them. eral district court in Manhattan, the govern- The administration and its defenders If it does, it will bring clarity to the ment was required to disclose, as it is rou- in the Senate say that because we have debate over whether terrorist detainees tinely in conspiracy cases, the identity of all known co-conspirators, regardless of whether tried terrorists in civilian courts be- at Guantanamo Bay ought to be trans- they are charged as defendants. One of those fore, we should do so again. They say ferred to the United States. That clar- co-conspirators, relatively obscure in 1995, there is no problem with us doing so ity is this: If we want certitude that was Osama bin Laden. It was later learned because the administration would foreign terrorists detained at Guanta- that soon after the government’s disclosure never release detainees into the United namo Bay are not released into the the list of unindicted co-conspirators had States, by which they really mean to United States, then do not bring them made its way to bin Laden in Khartoum, say the administration would not in- here in the first place. Sudan, where he then resided. He was able to Mr. President, I repeat. We could try learn not only that the government was tentionally release detainees into the aware of him, but also who else the govern- United States. Both assertions miss terrorists in the United States—we ment was aware of. the mark. could do that—but the issue is should It is not simply the disclosure of informa- First, whether we can try terrorists we do that. The answer is no. tion under discovery rules that can be useful here is not the issue. The issue is I yield the floor. to terrorists. The testimony in a public trial, whether we should try terrorists here. EXHIBIT 1 particularly under the probing of appro- priately diligent defense counsel, can elicit We can try them here, but should we? [From the Wall Street Journal, Oct. 19, 2009] evidence about means and methods of evi- Before he became Attorney General, CIVILIAN COURTS ARE NO PLACE TO TRY dence collection that have nothing to do Michael Mukasey was a noted Federal TERRORISTS with the underlying issues in the case, but trial judge who presided over civilian (By Michael B. Mukasey) which can be used to press government wit- trials of terrorists such as the trial of The Obama administration has said it in- nesses to either disclose information they the so-called Blind Sheik, Omar Abdel tends to try several of the prisoners now de- would prefer to keep confidential or make it Rahman, for the 1993 World Trade Cen- tained at Guantanamo Bay in civilian courts appear that they are concealing facts. The ter bombing. He has written that there in this country. This would include Khalid alternative is to lengthen criminal trials be- Sheikh Mohammed, the mastermind of the yond what is tolerable by vetting topics in are very good reasons we should not closed sessions before they can be presented try terrorists in a civilian court. This Sept. 11, 2001 terrorist attacks, and other de- tainees allegedly involved. The Justice De- in open ones. is a judge who presided over a terrorist partment claims that our courts are well In June, Attorney General Eric Holder an- trial in a U.S. civilian court, and this suited to the task. nounced the transfer of Ahmed Ghailani to is what he says: We should not try ter- Based on my experience trying such cases, this country from Guantanamo. Mr. Ghailani rorists in civilian court, including the and what I saw as attorney general, they was indicted in connection with the 1998 additional legal rights terrorists will aren’t. That is not to say that civilian courts bombing of U.S. Embassies in Kenya and cannot ever handle terrorist prosecutions, Tanzania. He was captured in 2004, after oth- receive if they are brought here. ers had already been tried here for that I ask unanimous consent to have but rather that their role in a war on ter- ror—to use an unfashionable harsh phrase— bombing. printed in the RECORD at the conclu- Mr. Ghailani was to be tried before a mili- should be, as the term ‘‘war’’ would suggest, tary commission for that and other war sion of my remarks General Mukasey’s a supporting and not a principal role. crimes committed afterward, but when the recent op-ed on the topic. The challenges of a terrorism trial are Obama administration elected to close Guan- The PRESIDING OFFICER. Without overwhelming. To maintain the security of tanamo, the existing indictment against Mr. objection, it is so ordered. the courthouse and the jail facilities where Ghailani in New York apparently seemed to (See Exhibit 1.) defendants are housed, deputy U.S. marshals offer an attractive alternative. It may be as must be recruited from other jurisdictions; Mr. MCCONNELL. Mr. President, sec- well that prosecuting Mr. Ghailani in an al- ond, once the administration brings de- jurors must be selected anonymously and es- ready pending case in New York was seen as tainees into the United States—right corted to and from the courthouse under an opportunity to illustrate how readily here in our country—it is no longer armed guard; and judges who preside over those at Guantanamo might be prosecuted in such cases often need protection as well. All simply a matter for the administra- civilian courts. After all, as Mr. Holder said such measures burden an already overloaded in his June announcement, four defendants tion. In other words, once they get justice system and interfere with the han- here, the administration cannot en- were ‘‘successfully prosecuted’’ in that case. dling of other cases, both criminal and civil. It is certainly true that four defendants al- tirely control the issue of whether they Moreover, there is every reason to believe ready were tried and sentenced in that case. are going to be released. It is no longer that the places of both trial and confinement But the proceedings were far from exem- about what it will or will not do. It is for such defendants would become attractive plary. The jury declined to impose the death also about what a Federal judge will or targets for others intent on creating may- penalty, which requires unanimity, when one will not do. hem, whether it be terrorists intent on in- juror disclosed at the end of the trial that he As we saw with Judge Urbina and the flicting casualties on the local population, or could not impose the death penalty—even lawyers intent on filing waves of lawsuits Uighurs, a judge may very well agree though he had sworn previously that he over issues as diverse as whether those cap- could. Despite his disclosure, the juror was with the legal arguments of Guanta- tured in combat must be charged with permitted to serve and render a verdict. namo detainees and order them re- crimes or released, or the conditions of con- Mr. Holder failed to mention it, but there leased right here in the United States. finement for all prisoners, whether convicted was also a fifth defendant in the case, In other words, no matter what the ad- or not. Mamdouh Mahmud Salim. He never partici- ministration’s intention may be, once Even after conviction, the issue is not pated in the trial. Why? Because, before it we bring them here, they do not con- whether a maximum-security prison can began, in a foiled attempt to escape a max- hold these defendants; of course it can. But trol the situation; the courts do. imum security prison, he sharpened a plastic their presence even inside the walls, as comb into a weapon and drove it through the Those risks do not exist if the Obama proselytizers if nothing else, is itself a dan- eye and into the brain of Louis Pepe, a 42– administration does not bring the ger. The recent arrest of U.S. citizen Michael year-old Bureau of Prisons guard. Mr. Pepe Guantanamo detainees into the United Finton, a convert to Islam proselytized in was blinded in one eye and rendered nearly States. That risk does not exist if it prison and charged with planning to blow up unable to speak.

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.055 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10622 CONGRESSIONAL RECORD — SENATE October 21, 2009 Salim was prosecuted separately for that did just that after the first World Trade Cen- in 1935, the Hatch Act in 1939, the crime and found guilty of attempted murder. ter bombing, after the plot to blow up air- Smith-Connelly Act in 1943, the Taft- There are many words one might use to de- liners over the Pacific, and after the em- Hartley Act of 1947, the Long Act in scribe how these events unfolded; ‘‘success- bassy bombings in Kenya and Tanzania. fully’’ is not among them. In return, we got the 9/11 attacks and the 1968, the Federal Election Campaign The very length of Mr. Ghailani’s deten- murder of nearly 3,000 innocents. True, this Act in 1974, and the bipartisan Cam- tion prior to being brought here for prosecu- won us a great deal of goodwill abroad—peo- paign Reform Act in 2002 are just some tion presents difficult issues. The Speedy ple around the globe lined up for blocks out- of the reforms enacted by Congress Trial Act requires that those charged be side our embassies to sign the condolence over the years to address corruption in tried within a relatively short time after books. That is the kind of goodwill we can do our government and in our campaigns. they are charged or captured, whichever without. Simply put, history has proven Jus- comes last. Even if the pending charge The PRESIDING OFFICER. The Sen- tice Scalia wrong in his assessment against Mr. Ghailani is not dismissed for vio- ator from Arizona is recognized. lation of that statute, he may well seek ac- that Congress will not act in anything cess to what the government knows of his CAMPAIGN FINANCE REFORM but a self-serving manner. activities after the embassy bombings, even Mr. MCCAIN. Mr. President, I am Justice Scalia’s statement was also if those activities are not charged in the joined by my friend and colleague and remarkable in that it exposed his belief pending indictment. Such disclosures could fellow warrior, Senator FEINGOLD. He that when it comes to issues relating seriously compromise sources and methods and I both have some remarks to make. to campaign reform, he somehow is a of intelligence gathering. I was chosen to go first, and then Sen- better arbiter of what is needed to re- Finally, the government (for undisclosed form the electoral process than the reasons) has chosen not to seek the death ator FEINGOLD, I know, will also want penalty against Mr. Ghailani, even though to address what we think is a very im- Congress or the American people. With that penalty was sought, albeit unsuccess- portant issue. This is the issue of the all due respect, that is not the job of fully, against those who stood trial earlier. U.S. Supreme Court case Citizens the judicial branch. Judges who stray The embassy bombings killed more than 200 United v. Federal Election Commis- beyond their constitutional role to try people. sion. and take Congress’s place as policy- Although the jury in the earlier case de- On September 9, the U.S. Supreme makers falsely believe that judges clined to sentence the defendants to death, Court heard oral arguments from both somehow have a greater insight into that determination does not bind a future what legislation is necessary and prop- jury. However, when the government deter- sides in the Citizens United v. Federal mines not to seek the death penalty against Election Commission. The implications er than representatives who are duly a defendant charged with complicity in the of this case are very serious, and the elected by the people and accountable murder of hundreds, that potentially distorts Supreme Court’s decision could result to them every several years. every future capital case the government in the unraveling of over 100 years of Activist judges—regardless of wheth- prosecutes. Put simply, once the government congressional action and judicial er it is liberal or conservative activ- decides not to seek the death penalty against precedent with respect to corporate ism—assume the judiciary is a super- a defendant charged with mass murder, how spending in political campaigns. Sen- legislature of moral philosophers, enti- can it justify seeking the death penalty tled to support Congress’s policy against anyone charged with murder—how- ator FEINGOLD and I were present in ever atrocious—on a smaller scale? the Supreme Court chamber for the ar- choices whenever they choose. I believe Even a successful prosecution of Mr. guments in this case. I commend both this judicial activism is wrong and is Ghailani, with none of the possible obstacles sides for presenting their case in a contrary to the Constitution. described earlier, would offer no example of thoughtful, intelligent manner. How- Our Constitution is very clear in its how the cases against other Guantanamo de- ever, there was one part of the argu- delineation and dispersement of power. tainees can be handled. The embassy bomb- ment I found particularly disturbing. It solely tasks the Congress with cre- ing case was investigated for prosecution in While responding to a question from ating law, not the courts. I have a long a court, with all of the safeguards in han- history of opposing activist judges. Ju- dling evidence and securing witnesses that Justice Alito, the Solicitor General attend such a prosecution. By contrast, the was interrupted by Justice Scalia, who dicial activism demonstrates a lack of charges against other detainees have not said: respect for the popular will, and that is been so investigated. Congress has a self-interest. I mean, we— at fundamental odds with our repub- It was anticipated that if those detainees we are suspicious of Congressional action in lican system of government. I believe a were to be tried at all, it would be before a the First Amendment area precisely because judge should seek to uphold all acts of military commission where the touchstone we—at least I am— Congress and State legislatures, unless for admissibility of evidence was simply rel- Here is the interesting part, when they clearly violate a specific section evance and apparent reliability. Thus, the of the Constitution, and refrain from circumstances of their capture on the battle- Justice Scalia said: field could be described by affidavit if nec- I doubt that one can expect a body of in- interpreting the law in a manner which essary, without bringing to court the par- cumbents to draw election restrictions that creates new law. That is a fundamen- ticular soldier or unit that effected the cap- do not favor incumbents. Now is that exces- tally conservative position I have held ture, so long as the affidavit and surrounding sively cynical of me? I don’t think so. throughout my career. I wish Justice circumstances appeared reliable. No such Yes, I think it is excessively cynical. Scalia shared that position. procedure would be permitted in an ordinary I take great exception to Justice Let us be very clear. At stake in the civilian court. Scalia’s statement, as should every Citizens United case are the voices of Moreover, it appears likely that certain Member of both Houses of Congress. It millions and millions of Americans charges could not be presented in a civilian court because the proof that would have to is an affront to the thousands of good, that could be drowned out by large cor- be offered could, if publicly disclosed, com- decent, honorable men and women who porations if the decades-old restric- promise sources and methods of intelligence have served this Nation in these Halls tions on corporate electioneering are gathering. The military commissions regi- for well over 200 years. Not only was rescinded. Overturning Supreme Court men established for use at Guantanamo was Justice Scalia’s statement excessively precedent would open the floodgates to designed with such considerations in mind. cynical, it showed his unfortunate lack unlimited corporate and union spend- It provided a way of handling classified in- of understanding of the facts and his- ing during elections and undermine formation so as to make it available to a de- tory of campaign reform. Throughout election laws across the country. Those fendant’s counsel while preserving confiden- tiality. The courtroom facility at Guanta- our history, America has faced periods able to spend tens of millions of dol- namo was constructed, at a cost of millions of political corruption, and in every in- lars, such as a Fortune 500 company or of dollars, specifically to accommodate the stance, Congress has risen above its a big labor union, are much more like- handling of classified information and the own self-interest and enacted the nec- ly to be heard during an election than heightened security needs of a trial of such essary reforms to address the scandals the average American voter is. For this defendants. and corruption that have plagued our reason, I have always advocated laws Nevertheless, critics of Guantanamo seem democratic institutions over time and that would prevent big-moneyed spe- to believe that if we put our vaunted civilian justice system on display in these cases, throughout our history. The Tillman cial interests from drowning out the then we will reap benefits in the coin of Act in 1907, the Publicity Act of 1910, voices of individual American citizens world opinion, and perhaps even in that part the Federal Corrupt Practices Act in in elections and dominating the deci- of the world that wishes us ill. Of course, we 1925, the Public Utilities Holding Act sionmaking process of our government.

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\A21OC6.010 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10623 Contrary to some of my critics, I am a This reform movement, combined with law prohibited nationally chartered firm believer in the first amendment. allegations of financial impropriety in banks and corporations from contrib- For more than 100 years, laws have the 1904 Presidential election, resulted uting to campaigns. In the report to stood to limit corporate donations to in the enactment of significant re- accompany the Senate version of the political candidates and campaigns— forms. legislation, dated April 27, 1906, the for more than 100 years. The concern On October 1, 1904, Joseph Pulitzer Senate Committee on Privileges and about corporate involvement in cam- published an editorial in the New York Elections wrote: paigns is not new in America. On Sep- World questioning President Roo- The evils of the use of money in connection tember 3, 1897, in a speech on govern- sevelt’s ties to many of the large cor- with political elections are so generally rec- ment and citizenship, Elihu Root, who porations that had donated to his cam- ognized that the committee deems it unnec- would go on to become Theodore Roo- paign. Those questions led Roosevelt’s essary to make any argument in favor of the sevelt’s Secretary of State and a Nobel opponent, Judge Alton Parker, to de- general purpose of this measure. It is in the Peace Prize winner, said: scribe the donations as blackmail and interest of good government and calculated insinuated there was a quid pro quo in- to promote purity in the selection of public The idea . . . is to prevent the great officials.’’ moneyed corporations of the country from volved. President Roosevelt responded furnishing the money with which to elect angrily, calling the accusations mon- Following passage of the Tillman members of the legislature . . . in order that strous and said: Act, Roosevelt again addressed the those members of the legislature may vote The assertion that there has been any issue in his Seventh Annual Message to to protect the corporations. It is to prevent blackmail, direct or indirect . . . is a false- Congress in December, 1907. He said: the great railroad companies, the great in- hood. The assertion that there has been Under our form of government voting is surance companies, the great telephone com- made any pledge or promise or that there not merely a right but a duty, and, more- panies, the great aggregations of wealth, has been any understanding as to future im- over, a fundamental and necessary duty if a from using their corporate funds, directly or munities or benefits, in recognition from any man is to be a good citizen. It is well to pro- indirectly, to send members of the legisla- source is a wicked falsehood. vide that corporations shall not contribute ture to these halls, in order to vote for their President Roosevelt, not wanting to to Presidential or National campaigns, and protection and the advancement of their in- give the appearance of improper influ- furthermore to provide for the publication of terests as against those of the public. both contributions and expenditures. It strikes, Mr. Chairman, at a constantly ence, directed his staff to return a growing evil in our political affairs, which $100,000 contribution from the Standard Although the Tillman Act con- has, in my judgment, done more to shake the Oil Corporation. In his memo he wrote: stituted a landmark in Federal law, ac- confidence of the plain people of small means We cannot under any circumstances afford cording to campaign finance expert An- in our political institutions, than any other to take a contribution which can be even im- thony Corrado, ‘‘its adoption did not practice which has ever obtained since the properly construed as putting us under an quell the cries for reform. Eliminating foundation of our government. improper obligation. corporate influence was only one of the Remember, this was in 1897. He went The allegations of impropriety also ideas being advanced at this time to on to say: led Roosevelt to call for an end to cor- clean up political finance.’’ In the And I believe that the time has come when porate donations to campaigns. In his years following the passage of the Till- something ought to be done to put a check fifth annual message to the Congress man Act, reducing the influence of upon the giving of $50,000 or $100,000 by a on December 5, 1905, Roosevelt said: wealthy individuals and labor unions great corporation toward political purposes, The power of the Government to protect upon the understanding that a debt is cre- became a concern and reformers pushed the integrity of the elections of its own offi- for further limits on donations. ated from a political party to it; a debt to be cials is inherent and has been recognized and recognized and repaid with the votes of rep- affirmed by repeated declarations of the Su- Consequently, in 1947, Congress en- resentatives in the legislature and in Con- preme Court. There is no enemy of free gov- acted the Taft-Hartley Act, which ex- gress, or by the action of administrative or ernment more dangerous and none so insid- plicitly banned corporate and labor executive officers who have been elected in a ious as the corruption of the electorate. union expenditures in Federal cam- measure through the use of the money so He warned: paigns. In doing so, Senator Robert contributed. If [legislators] are extorted by any kind of Taft made clear that the purpose of the Additionally, one can make the case pressure or promise, express or implied, di- new language was simply to affirm that the concern about corporate influ- rect or indirect, in the way of favor or immu- what had been understood to always be ence extends as far back as our Found- nity, then the giving or receiving becomes the case—that the 1907 corporate ban ing Fathers. In 1816, Thomas Jefferson not only improper but criminal. All con- had prohibited corporate expenditures, wrote: tributions by corporations to any political committee or for any political purpose or indirect contributions, as well as di- I hope we shall crush in its birth the aris- should be forbidden by law; directors should rect corporate contributions. tocracy of our moneyed corporations which not be permitted to use stockholders money A ban on corporate expenditures in dare already to challenge our government in for such purposes; and, moreover, a prohibi- campaigns has been consistently a trial of strength, and bid defiance to the tion of this kind would be, as far as it went, laws of our country. upheld by the Supreme Court as con- an effective method of stopping the evils stitutional and as ‘‘firmly embedded in Kentucky was the first State to ban aimed at in the corrupt practices acts. Not our law.’’ corporations from spending their funds only should both the national and the sev- The constitutionality of the ban on in State elections in 1891, and by 1897 eral State legislatures forbid any officer of a corporate campaign expenditures was Florida, Missouri, Nebraska, and Ten- corporation from using the money of the cor- upheld by the Supreme Court in the nessee had all enacted similar cor- poration in or about any election, but they Austin v. Michigan Chamber of Com- porate spending prohibitions in their should also forbid such use of money in con- nection with any legislation. merce decision in 1990 and reaffirmed State elections. While some States Again, the following year, in his by the Court in the McConnell v. Fed- began enacting limits on the influence sixth annual message to Congress in eral Election Commission decision in of money on politics during the Civil December 1906, President Roosevelt 2003. And the corporate expenditure War era, Congress did not begin to pass tried to limit corporate influence, stat- ban had been commented on favorably major campaign finance regulations ing: by the Court in earlier cases. until some decades later. By that time, In 1990, in the Austin case, the Su- political contributions by major cor- I again recommend a law prohibiting all corporations from contributing to the cam- preme Court acknowledged the impor- porate interests and business leaders paign expenses of any party. Such a bill has tance of maintaining the integrity of dominated campaign fundraising, and already passed one House of Congress. Let the political process. From the Court’s this development sparked the first individuals contribute as they desire . . . opinion: major movement for national reform. I repeat what he said: Michigan identified as a serious danger the Progressive reformers, such as Presi- Let individuals contribute as they desire; dent Theodore Roosevelt and investiga- significant possibility that corporate polit- but let us prohibit in effective fashion all ical expenditures will undermine the integ- tive journalists, charged that these corporations from making contributions for rity of the political process, and it has im- business interests were attempting to any political purpose, directly or indirectly. plemented a narrowly tailored solution to gain special access and favors; thereby, In January 1907, Theodore Roosevelt that problem. By requiring corporations to corrupting the democratic process. signed into law the Tillman Act. This make all independent political expenditures

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If anyone has doubts about the influ- paign discourse becomes dominated not by In the McConnell case, the Supreme ence of big-moneyed special interests individual citizens—whose right it is to se- lect their political representatives—but by Court recognized its long-standing sup- on policy makers in this town, let me corporate and union war-chests amassed as a port for the constitutionality of bans relay a personal observation. During result of the special benefits the government on corporate campaign expenditures the Senate Commerce Committee’s confers on these artificial ‘‘persons.’’ That going back to its Buckley decision in consideration of the 1996 Telecommuni- concern remains a compelling justification 1976. From the Court’s decision: cations Act, every company affected by for restrictions on using corporate treasury Since our decision in Buckley, Congress’ the legislation had purchased a seat at funds for electoral advocacy—constraints power to prohibit corporations and unions the table with soft money. Con- that ban no speech but only require that it from using funds in their treasuries to fi- sequently, the bill attempted to pro- be funded by individuals who have chosen to nance advertisements expressly advocating do so. tect them all, a goal that is obviously The holdings of Austin and McConnell— the election or defeat of candidates in fed- incompatible with competition. Con- that it is constitutional to require business eral elections has been firmly embedded in sumers, who only give us their votes, corporations to use segregated funds contrib- our law. had no seat at the table, and the lower uted by shareholders, officers and employees Additionally, in 1982, in the National prices that competition produces never for express candidate advocacy or its func- Right to Work Committee case, the Su- materialized. Cable rates went up. tional equivalent—remain sound today. The preme Court, in an opinion authored by Phone rates went up. And huge broad- interests in preventing actual or apparent corruption of the electoral process and pro- Chief Justice William Rhenquist, stat- casting giants received billions of dol- ed regarding the Federal ban on cor- tecting shareholders provide compelling jus- lars in digital spectrum, property that tification for such requirements, which nei- porate and labor union expenditures: belonged to the American people, for ther unduly burden nor overbroadly inhibit The careful legislative adjustment of the free. They got it for free, billions of protected speech. federal electoral laws, in a cautious advance, dollars worth of spectrum. The corporate PAC option, moreover, is step by step, to account for the particular Information gathered from various ideally suited to balancing the First Amend- legal and economic attributes of corpora- sources in the press at the time indi- ment interests of corporate entities and tions and labor organizations warrants con- their shareholders. It allows the corporation siderable deference. [I]t also reflects a per- cated that the special interest groups to direct political spending only to the ex- missible assessment of the dangers posed by involved spent nearly $150 million to tent shareholders have personally decided to those entities to the electoral process. lobby Congress on telecommunications contribute for that specific purpose. It thus In order to prevent both actual and appar- reform—and they all came out on top— ensures that the corporation may have a ent corruption, Congress aimed a part of its at the expense of the American con- voice, but one that is not subsidized regulatory scheme at corporations. The stat- sumer. unwillingly by those who may disagree with ute reflects a legislative judgment that the Similarly, the pharmaceutical indus- its electoral message. And there is no basis special characteristics of the corporate try has spent millions of dollars to in the record for concluding that PACs are structure require particularly careful regula- inadequate or unduly burdensome for busi- tion. Nor will we second guess a legislative sway lawmakers against the idea of ness corporations, whatever may be true of determination as to the need for prophy- drug importation. In the 2008 election certain ideological nonprofit corporations. lactic measures where corruption is the evil cycle, pharmaceutical companies gave Indeed, PAC requirements pale in compari- feared. As we said in California Medical As- almost $30 million in campaign con- son with the detailed recordkeeping and ac- sociation v. FEC, the ‘‘differing structures tributions to Members of Congress. counting otherwise required of corporations and purposes; of different entities ‘may re- Just this year, according to an article and unions. quire different forms of regulation in order published in the June 3 edition of The The ability of corporate campaign to protect the integrity of the electoral proc- Hill, the prescription drug industry has expenditures to buy influence with ess . . .’ ’’ Federal officeholders, and to create the The governmental interest in preventing given more than one million dollars to both actual corruption and the appearance of both Republicans and Democrats. And appearance of such influence-buying is corruption of elected representatives has these contributions were from the lim- sadly evident in nearly every aspect of long been recognized, First National Bank of ited funds of corporate PACs—a frac- the legislative process. This fact was Boston v. Bellotti, supra, and there is no rea- tion of the flood of money that could recognized in the McConnell case. son why it may not in this case be accom- be spent out of corporate treasuries if The brief filed in the McConnell case plished by treating unions, corporations and the Supreme Court changes the law by by me and my colleagues stated: similar organizations different from individ- judicial fiat. Not surprisingly, the McConnell record uals. As my colleagues know, for many provided strong corroboration that corporate In 1986, in the Massachusetts Citizens years my colleague from Wisconsin, and union expenditures on ads that were the functional equivalent of express advocacy for Life case, the Supreme Court stated Senator FEINGOLD and I fought to ban created the appearance of corruption. Based regarding the Federal ban on corporate soft money—the large, unregulated do- expenditures in campaigns: on that record, Judge Kollar-Kotelly found nations from corporations, labor that such expenditures ‘‘permit corporations This concern over the corrosive influence unions, and wealthy individuals—from and labor unions to inject immense aggrega- of concentrated corporate wealth reflects the Federal elections. As the sponsors of tions of wealth into the process’’ and ‘‘radi- conviction that it is important to protect the Bipartisan Campaign Finance Re- cally distort the electoral landscape.’’ She the integrity of the marketplace of political form Act, we submitted, together with further found that candidates are ‘‘acutely ideas . . . Direct corporate spending on polit- aware of’’ and ‘‘appreciate’’ such expendi- ical activity raises the prospect that re- our colleagues from the House, Rep- resentatives Shays and Meehan, a brief tures, and ‘‘feel indebted to those who spend sources amassed in the economic market- money to help get them elected.’’ She con- place may be used to provide an unfair ad- for the court. In this brief we stated: cluded that ‘‘the record demonstrates that vantage in the political marketplace . . . More fundamentally, Austin and McCon- candidates and parties appreciate and en- The resources in the treasury of a business nell were correctly decided. Unlimited ex- courage corporations and labor unions to de- corporation . . . are not an indication of pop- penditures supporting or opposing candidates ploy their large aggregations of wealth into ular support for the corporation’s political may create at least the appearance of cor- the political process,’’ and that ‘‘the record ideas. They reflect instead the economically ruption, as Caperton v. A.T. Massey Coal Co. presents an appearance of corruption stem- motivated decisions of investors and cus- illustrates. The tremendous resources busi- ming from the dependence of officeholders tomers. The availability of these resources ness corporations and unions can bring to and parties on advertisements run by these may make a corporation a formidable polit- bear on elections, and the greater magnitude outside groups.’’ ical presence, even though the power of the of the resulting apparent corruption, amply According to the Solicitor General’s corporation may be no reflection of the justify treating corporate and union expendi- power of its ideas. tures differently from those by individuals brief, the record in the McConnell case By requiring that corporate independent and ideological nonprofit groups. showed that: expenditures be financed through a political So, too, does the countervailing free- Federal officeholders and candidates were committee expressly established to engage speech interest of the many shareholders aware of and felt indebted to corporations

VerDate Nov 24 2008 03:33 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\A21OC6.012 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10625 and unions that financed electioneering ad- contributions of officers and shareholders being, invisible, intangible.’’ Therefore, vertisements on their behalf or against their who agree with its political statements. he stated, ‘‘Being the more creature of opponents. The Solicitor General’s brief further law, it possesses only those properties The brief further stated: stated: which the charter of its creation con- [T]he record compiled in the McConnell Corporate participation in candidate elec- fers upon it, either expressly or as inci- case indicated that corporate spending on tions creates a substantial risk of corruption dental to its very existence.’’ candidate-related speech, even if conducted or the appearance thereof. Corporations can Essential to a corporation’s existence independent of candidates, had come to be use electoral spending to curry favor with is a first amendment right to speak used as a means of currying favor with and particular candidates and thus to acquire attempting to influence Federal office-hold- about their products and services. Es- undue influence over the candidates’ behav- sential to a corporation’s existence is ers. ior once in office. It is important for us to remember The record in McConnell, which is by far the right to sue for the theft of its in- that this case does not affect solely the the most extensive body of evidence ever tellectual property. Essential to a cor- integrity of Federal elections. The compiled on these issues, indicates that dur- poration’s existence is the right to States also have a great deal at stake ing the period leading up to BCRA’s enact- enter into contracts. Not essential to a ment, Federal office-holders and candidates in this case. In a brief filed in the Citi- corporation’s existence is the ability to were aware of and felt indebted to corpora- contribute unlimited funds to political zens United case, 26 State attorneys tions and unions that financed election- general wrote that ‘‘Courts have re- candidates. eering advertisements on their behalf or It is for this reason and others that peatedly upheld these State and Fed- against their opponents. eral corporate electioneering restric- The nature of business corporations makes the Supreme Court has repeatedly and tions from their inception.’’ corporate political activity inherently more consistently upheld a ban on direct In their brief, the attorneys general likely than individual advocacy to cause contributions to political candidates wrote: quid pro quo corruption or the appearance of by corporations and unions. Chief Jus- such corruption. Even minor modifications This case does not concern the traditional tice Roberts stated at one point during in complex legislation have great potential the argument in the Citizens United regulation of corporate spending by State to benefit or burden particular companies, Laws. Instead it presents the application of a case that: ‘‘We do not put our First industries, or sectors. The economic stake of Amendment rights in the hands of FEC recent Federal statute to a novel form of po- corporations in the nuances of such matters litical campaigning through the medium of as industry-specific tax credits, subsidies, or bureaucrats.’’ I agree. And that is why video-on-demand and the message of a nine- tariffs generally dwarfs that of any set of in- the Court has repeatedly upheld bans ty-minute film. These and other political dividuals. passed by the Congress of the United campaign innovations present an occasion to And when those benefits can be obtained States and by the State legislators on draw on State law experiments, not end through a game of ‘‘pay to play,’’ corpora- them. The court cannot reach the validity of unlimited corporate or union spending tions are better suited than individuals to af- in elections. these laws under Austin without departing ford the ante. Corporate managers need not from its conventional approach to constitu- Under current law, corporations are assemble a coalition of the like-minded; they free to give to political candidates tional avoidance and as-applied review of can draw on the firm’s entire capitalization campaign finance statutes, and ignoring its without seeking the approval of share- through political action committees. cautions against facial challenges in election holders. If only businesses can afford the in- In an editorial in the Boston Globe en- law generally. vestment necessary to pursue rents in this titled ‘‘Corporations Aren’t People Austin follows a century of campaign fi- way, only businesses can reap the (even larg- Yet,’’ the editorial board rightly nance law at the State and Federal level er) reward. And the public perception that honed by six decades of this Court’s holdings. states: ‘‘Even under current financial businesses reap such rewards from legisla- Those decisions, and the State and Federal restrictions, health care industry tors whom they support in campaigns cre- laws that gave rise to and rely on them, de- groups are pouring millions of dollars ates an appearance of corruption that cor- lineate a workable segregated-fund require- into Congressional campaigns in the rodes popular confidence in our democracy. ment for corporate electioneering that is hope of thwarting reforms that might embedded in campaign laws and practice at At the heart of the Citizens United constrain their members.’’ the Federal and State level. While imposing case is a critical question: Do the cher- A September 10, 2009 editorial in the minimal burdens on corporations, the seg- ished individual rights protected by the Philadelphia Inquirer stated: regated fund protects the integrity of the po- Constitution extend in the same man- litical process from the corrupting influence Allowing corporations to flood elections ner to corporations? Corporations, with their aggregate corporate wealth would of corporate executives funding political after all, are artificial creations of law, campaigns that have no proven support from place a heavy thumb on the scales of democ- the shareholders or customers whose money provided for by acts of Congress and racy. If a certain industry did not like the pays for the advocacy. The flourishing of the State legislaturs, and endowed way a Senator voted on environmental regu- corporate speech through PACs, and contin- under these laws with perpetual exist- lations, for example, there would be nothing ued harms of direct corporate electioneering, ence, special tax status, and other to stop that industry from dumping $200 mil- has vindicated rather than undermined Aus- privileges, all for the sole purpose of lion into the campaign of that Senator’s op- ponent. tin’s approval of segregated funds. economic gain. The resolution of this It is clear that the Austin and question in the affirmative will have The editorial goes on to say: McConnell cases were correctly decided wide-ranging and unpredictable results If the high court rules now that corpora- on the merits and those decisions re- for our legal system. tions have the same political speech rights main sound today. According to the For example, if the Court determines as individuals, average citizens will have that much more trouble being heard . . . the brief filed by the U.S. Solicitor Gen- corporations have first amendment distinction between corporate speech and in- eral: rights, it will be logical that corpora- dividual speech is clear enough, and the im- The Court in Austin held that corporations tions also have fifth amendment rights portance of limiting the undue influence of may constitutionally be prohibited from fi- against self-incrimination. Is a cor- money and politics is significant enough nancing electoral advocacy with funds de- poration ‘‘endowed by its creator with that the court, in all its wisdom, should rived from business activities. That holding inalienable rights’’? Just last year the leave well enough alone. was correct when issued and should not be Court found that the second amend- I agree. overturned now. Use of corporate treasury funds for electoral advocacy is inherently ment right to bear arms is a personal In conclusion, the Court should not likely to corrode the political system both right. If the Court were to determine overturn precedent and Congress’s by actually corrupting political officeholders that corporations had the same rights clear intent to limit corporate con- and by creating the appearance of corrup- as persons, would corporations have tributions to political candidates. In tion. Moreover, such use of corporate funds the right to arm themselves? Would summary, there are three simple points diverts shareholders’ money to the support lobbies of Fortune 500 companies con- raised by the Court’s consideration of of candidates who the shareholders may op- tain grand weapon caches? The absurd- the Citizens United case. First, what- pose. ity of the argument should be apparent ever one thinks of a first amendment Congress’s interest in preventing these per- nicious consequences is compelling, and Con- to the members of the Court. right for corporations, it is not appro- gress has chosen a valid message of achiev- John Marshall, former Chief Justice priate for a nondemocratic branch of ing it, requiring a corporation to fund its of the Supreme Court, wrote in 1819 government to raise a question of the electoral advocacy through the voluntary that corporations were ‘‘an artificial broadest scope at the last minute when

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.061 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10626 CONGRESSIONAL RECORD — SENATE October 21, 2009 such a question was not raised in the been proud to be associated with on these longstanding laws will be in jeop- trial court and there is no ability to issues such as these that are important ardy. build a record. to the integrity of the institution that I certainly hope the Court steps back Congress is the most democratically we both try to serve with honor. from the brink. A decision to overturn elected branch of government and I yield the floor. the Austin decision would open the should be able to make laws that do The PRESIDING OFFICER. The Sen- door to corporate spending on elections not stand in the face of the Constitu- ator from Wisconsin. the likes of which this Nation truly has tion whether or not the members of the Mr. FEINGOLD. Mr. President, I never seen. Our elections would become Court would themselves support such thank the Senator from Arizona for all like NASCAR races—underwritten by legislation if they served in the elected the work he has done over these many companies. Only in this case, the cor- branches of government. years to improve our campaign finance porate underwriters wouldn’t just be Secondly, the principle enshrined in system. We have been partners in this seeking publicity, they would be seek- law for many years was that corpora- effort for over a decade. In fact, it will ing laws and policies that the can- tions, because of their artificial legal soon be 15 years. Of course, there is no didates have the power to provide. nature and special privileges, including one in this body whom I admire more We were headed well down that road perpetual existence, pose a unique than JOHN MCCAIN. in the soft money system that BCRA threat to our democracy. However, the In early September, Senator MCCAIN stopped. It may seem like a long time current court seems poised to find that and I had the opportunity to walk ago, but the Senator from Arizona and Thomas Jefferson, Theodore Roosevelt, across the street to the Supreme Court I remember that hundreds of millions and others were wrong despite there and hear the oral argument in the Citi- of dollars were contributed by corpora- being no record built on this point in zens United case. It was a morning of tions and unions to the political par- this case. In McConnell, there was a firsts: The first case that Justice Sonia ties between 1988 and 2002. The system record built to support the decision. Sotomayor has heard since the Senate led to scandals like the White House Here, the trial court never examined confirmed her nomination to become coffees and the sale of overnight stays the idea of corporations having broad only the third woman to sit on our Na- in the Lincoln bedroom. The appear- first amendment rights. The Court is tion’s highest court. And the first oral ance of corruption was well docu- reaching to find such a conclusion as argument that Solicitor General Elena mented in congressional hearings and part of the Citizens United case. Kagan has done since becoming the fully justified the step that Congress Lastly, I stress again to my col- first woman to hold that important po- took in 2002—prohibiting the political leagues the implications of the deci- sition in our government. parties from accepting soft money con- sion the Court may reach in this case. And it was the first time since the tributions. The Court is considering a question Tillman Act was passed in 1907 prohib- Before BCRA was passed, corpora- that may lead to corporations being iting spending by corporations on elec- tions were making huge soft money do- treated as ‘‘persons’’ under the Con- tions, and the Taft-Hartley Act in 1947 nations. They were also spending stitution, would allow corporations to clarified and strengthened that prohi- money on phony issue ads. That is assert a fifth amendment right to bition, that a majority of the Court has what title II was aimed at. But what refuse to testify under oath and to suggested it is prepared to hold that they were not doing was running elec- keep documents from lawful investiga- Congress and the many State legisla- tion ads that expressly advocated the tions, and would allow corporations to tures that have passed similar laws election or defeat of a candidate. That be subject to individual tax brackets. have violated the Constitution. Such a has been prohibited in this country for Are my colleagues prepared to pro- decision could have a truly calamitous at least 60 years, though it is arguable vide such rights to corporations? Are impact on our democracy. that the Tillman Act in 1907 prohibited my colleagues prepared to pass legisla- Until a few months ago, as the Sen- it 40 years before that. So it is possible tion that taxes corporations and per- ator from Arizona pointed out, no one that the Court’s decision will not just sons at the same rate? If the Court pro- had any idea that the Citizens United take us back to a pre-McCain-Feingold vides full first amendment rights to case would potentially become the ve- era, but back to the era of the robber corporations, there is no reason that hicle for such a wholesale uprooting of baron in the 19th century. That result corporations could not receive the ben- the principles that have governed the should frighten every citizen of this efits as well as the responsibilities of financing of our elections for so long. country. The Court seems poised to ig- being a person. The case started out as a simple chal- nite a revolution in campaign financ- Justice Sandra Day O’Connor wrote lenge to the application of title II of ing with a stroke of its collective pen in the McConnell decision, and I think the law that Senator MCCAIN and I that no one contemplated even 6 with such accuracy, that ‘‘money, like sponsored, the Bipartisan Campaign months ago. water, will always find an outlet,’’ and Reform Act of 2002. The issue was While I have disagreed with many that the government was therefore jus- whether the provisions of BCRA relat- Supreme Court decisions, I have great tified in taking steps to prevent ing to so-called issue ads could con- respect for that institution and for the schemes developed to get around the stitutionally be applied to a full-length men and women who serve on the contribution limits. Again, Justice feature film about then-Presidential Court. But this step would be so dam- O’Connor knew better than most ju- candidate Hillary Clinton. The movie aging to our democracy and is so un- rists, as a former Arizona State Sen- was to be distributed solely as video on warranted and unnecessary that I must ator, and majority leader of the Ari- demand. speak out. That is why Senator MCCAIN zona State Senate. I hope and wish Yet somehow at the end of its last and I have taken the unusual step of that the current Court heeds the words term, instead of deciding the case on coming to the floor today. of this brilliant jurist who had real-life the basis of the briefs and arguments To overrule the Austin decision in experiences in politics. submitted by the parties early this this case, the Court would have to ig- Needless to say, I am very concerned year, the Court reached out and asked nore several time-honored principles about the integrity of our elections for supplemental briefing on whether it that have served for the past two cen- should the Supreme Court rule to over- should overturn its decisions in McCon- turies to preserve the public’s respect turn the Austin decision. I sincerely nell v. FEC, the case that upheld BCRA for and acceptance of its decisions. hope that the Justices will practice re- in 2003, and Austin v. Michigan Cham- First, it is a basic tenet of constitu- straint and rule in a manner consistent ber of Commerce, a 1991 decision that tional law that the Court will not de- with judicial precedent and the Con- upheld a State statute prohibiting cor- cide a case on constitutional grounds stitution of the United States of Amer- porate funding of campaign ads ex- unless absolutely necessary, and that if ica. pressly advocating the election or de- there is no choice but to reach a con- I again want to, as I have on many feat of a candidate. That set the stage stitutional issue, the Court will decide occasions, thank my friend from Wis- for the recent special session to hear the case as narrowly as possible. consin, a man of courage and a man of reargument in the case. And now we This is the essence of what some have integrity, and a man I have always await the Court’s verdict on whether called ‘‘judicial restraint.’’ What seems

VerDate Nov 24 2008 03:33 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.061 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10627 to be happening here though is the an- cause the legal standard under pre- was $23.5 trillion, and after-tax profits tithesis of judicial restraint. The Court vailing first amendment law is whether were nearly $1 trillion. During the 2008 seems ready to decide the broadest pos- the statute is designed to address a election cycle, Fortune 100 companies sible constitutional question—the con- compelling State interest and is nar- alone had profits of $605 billion. That is stitutionality of all restrictions on cor- rowly tailored to achieve that result. quite a war chest that may be soon un- porate spending in connection with My colleagues may recall that when we leashed on our political system. Just elections in an obscure case in which passed the McCain-Feingold bill, a for comparison, spending by can- many far more narrow rulings are pos- massive legislative record was devel- didates, outside groups, and political sible. oped to demonstrate the corrupting in- parties on the last Presidential elec- The second principle is known as fluence of soft money. And the facial tion totaled just over $2 billion. Fed- stare decisis, meaning that the Court constitutional challenge to that bill eral and State parties spent about $1.5 respects its precedents and overrules led to months of depositions and the billion on all Federal elections in 2008. them only in the most unusual of building of an enormous factual record PACs spent about $1.2 billion. That cases. Chief Justice John Roberts, for the court. None of that occurred usually sounds like a lot of money, but whom many believe to be the swing here. And furthermore, the over 20 it is nothing compared to what cor- justice in this case, made grand prom- States whose laws would be upended if porations and unions have in their ises of what he called ‘‘judicial mod- Austin is overruled were given no op- treasuries. So we are talking here esty,’’ when he came before the Senate portunity to defend their legislation about a system that could very easily Judiciary Committee in 2005. Respect and show whatever legislative record be completely transformed by cor- for precedent was a key component of had been developed when their statutes porate spending in 2010. were enacted. the approach that he asked us to be- Does the Supreme Court really be- Instead, the Court seems to be ready lieve he possessed. Here is what he lieve that the first amendment requires to rely on its intuition, its general the American people to accept a sys- said: sense of the political process. From I do think that it is a jolt to the legal sys- tem where banks and investment firms, what I observed at oral argument, that having just taken our country into its tem when you overrule a precedent. Prece- intuition is sorely lacking. One Justice worst economic collapse since the dent plays an important role in promoting blithely asserted that the 100-year-old stability and evenhandedness. It is not Great Depression, can spend millions congressional decision to bar corporate enough—and the court has emphasized this upon millions of dollars of ads directly expenditures must have been moti- on several occasions—it is not enough that advocating the defeat of those can- vated by the self-interest of Members you may think the prior decision was wrong- didates who didn’t vote to bail them ly decided. That really doesn’t answer the of Congress as incumbent candidates, out or want to prevent future economic question, it just poses the question. And you ignoring the fact that the modern Con- disaster by imposing strict new finan- do look at these other factors, like settled gress prohibited soft money contribu- cial services regulations? I say that be- expectations, like the legitimacy of the tions even though the vast majority of cause that is where we are headed. Is court, like whether a particular precedent is those contributions were used to sup- workable or not, whether a precedent has port incumbents. Another Justice the Court really going to say that oil been eroded by subsequent developments. All companies that oppose action on global of those factors go into the determination of opined that it was paternalistic for Congress to be concerned about cor- warming are constitutionally entitled whether to revisit a precedent under the to spend their profits to elect can- principles of stare decisis. porations using their shareholders’ didates who will oppose legislation to So said then Judge Roberts. Talk money for political purposes, even though most Americans invest through address that problem? about a jolt to the legal system. It is The average winning Senate can- mutual funds and have little or no idea hard to imagine a bigger jolt than to didate in 2008 spent $8.5 million. The what corporations their money has ac- strike down laws in over 20 States and average House winner spent a little a Federal law that has been the corner- tually gone to. For the Court to overrule Austin and under $1.4 million. A single major cor- stone of the Nation’s campaign finance McConnell in this case would require it poration could spend three or four system for 100 years. The settled expec- to reject these three important prin- times those amounts without causing tations that would be upset by this de- ciples of judicial modesty. It would even a smudge on its balance sheet. cision are enormous. And subsequent amount to the unelected branch of gov- This is not about the self-interest of developments surely have not shown ernment reaching out to strike down legislators who will undoubtedly fear that the Austin decision is unworkable. carefully considered and longstanding the economic might that might be Indeed, the Court relied on it as re- judgments of the most democratic brought against them if they vote the cently as 2003 in the McConnell case branch. It would be, in my view, a com- wrong way. This is about the people and even cited it in the Wisconsin pletely improper exercise of judicial they represent, who live in a democ- Right to Life decision just 2 years ago, power. racy and who deserve a political sys- written by none other than Chief Jus- Let me discuss for a moment the con- tem where their views and their inter- tice Roberts. To be sure, there are Jus- sequences of this decision. A funda- ests are not completely drowned out by tices on the Court who dissented from mental principle of our democracy is corporate spending. the Austin decision when it came down that the people elect their representa- At the oral arguments last month, and continue to do so today. But if tives. Each citizen gets just one vote. one Justice seemed to suggest it is per- stare decisis means anything, a prece- Our system of financing campaigns fectly acceptable for a tobacco com- dent on which so many State legisla- with private money obviously gives pany to try to defeat a candidate who tures and the American people have re- people of means more influence than wants to regulate tobacco and to use lied should not be cast aside simply be- average voters, but Congress over the its shareholders’ money to do so. This cause a few new Justices have arrived years has sought to provide some rea- is the system the Supreme Court may on the Court. sonable limits and preserve the impor- bequeath to this country if it does not Third, the courts decide cases only tance of individual citizens’ votes. One turn back. on a full evidentiary record so that all of the most important and long- Some will say that corporate inter- sides have a chance to put forward standing limits is that only individuals ests already have too much power and their best arguments and the court can can contribute to candidates or spend that Members of Congress listen to the be confident that it is making a deci- money in support of or against can- wishes of corporations instead of their sion based on the best information didates. Corporations and unions are constituents. I will not defend the cur- available. In this case, precisely be- prohibited from doing so, except rent system, but I will say: Imagine cause the Supreme Court reached out through their PACs, which themselves how much worse things would be in a to pose a broad constitutional question raise money only from individuals. The system where every decision by a Mem- that had not been raised below, there is Supreme Court may very well be about ber of Congress that contradicts the no record whatsoever to which the to change that forever. wishes of a corporation could unleash a Court can turn. None. The question According to a 2005 IRS estimate, the tsunami of negative advertising in the here demands a complete record be- total net worth of U.S. corporations next election.

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\A21OC6.015 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10628 CONGRESSIONAL RECORD — SENATE October 21, 2009 In light of the immense wealth a cor- ability to enforce antitrust laws many years, United Health Care, a poration can bring to bear on such a against them, and the Supreme Court massive health insurance company, project, I frankly wonder how our de- ruled that the insurance business was owned and operated a computerized mocracy would function under such a subject to antitrust laws just like ev- pricing system that was used by almost system. We are talking about a polit- erybody else. In response, insurance every other health insurer. The New ical system where corporate wealth companies came to Congress, where York attorney general recently found rules in a way that we have simply they launched a massive lobbying cam- that the system was designed to sys- never seen in our history. paign, pressuring Congress to invali- tematically underpay doctors for their So, once again, I certainly want to date the Supreme Court’s decision—not services and that this had been going thank my friend from Arizona for his unlike the current lobbying barrage on for years. United Health paid $400 friendship and his courage. We will they are aiming at killing health care million to settle lawsuits by the State, continue to fight for a campaign fi- reform. That campaign back in 1944 but if the Federal Trade Commission or nance system that allows the American was successful. In March 1945, the the U.S. Department of Justice had people’s voices to be heard. McCarran-Ferguson Act exempted in- tried to bring suit under the Federal Mr. President, I yield the floor and surance companies entirely from the antitrust laws, they would have been suggest the absence of a quorum. reach of America’s antitrust laws. If blocked by McCarran-Ferguson. The PRESIDING OFFICER (Mr. BEN- that exemption ever made sense, it no Finally, ironically, health insurers NET). The clerk will call the roll. longer does, especially when it comes threaten and sue doctors all the time The legislative clerk proceeded to to health insurance coverage. under these same antitrust laws while call the roll. Today, Americans pay ever-higher protecting their own exemption from Mr. WHITEHOUSE. Mr. President, I premiums for less care because a small the laws they seek to impose on the ask unanimous consent that the order group of wealthy, powerful companies providers and the doctors whom they for the quorum call be rescinded. control the health insurance market. torment. The PRESIDING OFFICER. Without Just consider these numbers: A study One might ask how this exemption objection, it is so ordered. by the American Medical Association has survived so long. A certain school HEALTH INSURANCE INDUSTRY ANTITRUST shows that 94 percent of metropolitan of political thought holds that the only ENFORCEMENT ACT areas—virtually every one—has a proper relationship of government to Mr. WHITEHOUSE. Mr. President, I health insurance market that is ‘‘high- the market is hands off, that any gov- come to the floor to speak in strong ly concentrated,’’ as measured by De- ernment involvement in the market- support of the Health Insurance Indus- partment of Justice standards. This place is unnatural and unwelcome. But try Antitrust Enforcement Act, intro- means that if the Department of Jus- with respect to antitrust enforcement, duced by the senior Senator from tice’s Antitrust Division had enforce- we crossed that Rubicon long ago, and ment authority over the health insur- Vermont, the chairman of our Judici- every industry in the country is re- ance industry, it would be carefully ary Committee, Mr. PATRICK LEAHY. I quired to play by rules that support the scrutinizing this market for signs of believe this bill is an important part of market by increasing competition, anticompetitive conduct that hurts health care reform, and I am hopeful it again, except insurance. Experience in consumers. But due to the antitrust ex- can be included in the final reform bill those other areas has shown that the emption, the Department of Justice as it makes its way through this body. government referee on the field of play Our antitrust laws embody the proud cannot do that job. That same study creates a better environment for com- American idea that democracy shapes shows that, in 39 States 2 health insur- petition, and the public wins. ers control at least half of the health capitalism and not vice versa; that vig- Think of the benefits of a competi- insurance market and in 9 States a sin- orous economic competition is not an tive health insurance market. Insurers gle insurer controls at least 70 percent amoral, Hobbesian contest but dis- would have to compete on price, low- ciplined by a strong rule of law tradi- of the market. Back in 1945, the insurance industry ering premiums for individuals and tion; and that ours is not a society in small businesses purchasing insurance, which might makes right and only the argued that it should be exempted from the antitrust laws because the market and work hard to lower those unneces- powerful write the rule book. sary administrative costs. New com- The great Supreme Court jurist and was heavily localized and not con- petitors would be able to enter more antitrust crusader William O. Douglas, centrated. Well, if that were true then, easily and offer better consumer serv- wrote: it is not true now. Overhead for private insurers is an ice, quicker claims processing, stream- Industrial power should be decentralized. lined enrollment—competition that is It should be scattered into many hands so astounding 20 to 27 percent—charges that the fortunes of the people will not be that consumers pay for in higher pre- desperately needed in a market where dependent on the whim or caprice, the polit- miums. A Commonwealth Fund report 36 percent of physician overhead is con- ical prejudices, the emotional stability of a indicates that private insurer adminis- sumed by fighting with the insurance few self-appointed men. . . . That is the phi- trative costs increased 109 percent from industry over inappropriate denial and losophy and the command of the Sherman 2000 to 2006—109 percent in those 6 delay of health insurance claims. [Antitrust] Act. years—and the McKinsey Global Insti- Senator LEAHY’s Health Insurance The passage of the Sherman Anti- tute estimates that Americans spend Industry Antitrust Enforcement Act trust Act and the Clayton Antitrust roughly $150 billion annually on what would repeal the unique and peculiar Act and the creation of the Federal the report calls ‘‘excess administrative exemption for health insurance and Trade Commission and the Antitrust overhead’’ in the private health insur- medical malpractice insurance compa- Division at the Department of Justice ance market. Mr. President, $150 bil- nies. The bill ensures that these com- demonstrated a Federal commitment lion a year in ‘‘excess administrative panies are no longer permitted to en- to a level economic playing field. overhead.’’ Clearly, this is not a com- gage in the most egregious forms of Small businessmen and entrepreneurs, petitive market. If it were, companies antitrust violations—price fixing, bid shouldering the enormous task of would be driven to cut these costs in rigging, and market allocations—while starting and sustaining a new enter- order to compete effectively in the preserving insurers’ ability to share prise, would know that powerful com- marketplace. statistical information with each other petitors could not collude to keep them Without competition and without in a procompetitive manner, with ap- out of the market. Consumers could economic incentive to avoid massive propriate approvals. rest assured that prices were not being administrative costs, health insurance Let me conclude with the words of a fixed artificially high by scheming mo- premiums have increased 120 percent— distinguished Senator, one of the nopolists. Every industry, ever vector more than doubled—in one decade, greatest advocates for the elderly, ill, of American business, was made sub- while insurance industry profits in- and disabled this Chamber has seen, ject to these rules of the road—except creased 428 percent in the same pe- Senator Claude Pepper. Senator Pep- for one: the insurance industry. riod—428 percent. per, at the time, strongly opposed the In 1944, insurance companies chal- Doctors and other health care pro- McCarran-Ferguson antitrust exemp- lenged the Federal Government’s very viders have been hurt as well. For tion for the insurance industry, and he

VerDate Nov 24 2008 03:33 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.065 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE October 21, 2009 CONGRESSIONAL RECORD — SENATE S10629 warned of the ‘‘carte blanche authority and influence public policy to meet nancial services companies spending . . . which had been contained in no their ends. The consequences of such a unlimited money to defeat Members of previous legislation . . . [and] which decision by our Supreme Court could Congress who have the nerve to want for the first time gives the States carte be nightmarish. to reform the way things are done on blanche to legitimize the very vices Federal laws restricting corporate Wall Street; defense contractors over- against which the Clayton Act and the spending on campaigns have a long whelming candidates who dare ques- Sherman Act were directed.’’ pedigree. Back in 1907, the Tillman Act tion a weapons program they build. It It appears to me the exemption for restricted corporate spending on polit- would become government of the CEOs, the insurance industry was a mistake ical campaigns. While various loop- by the CEOs, and for the CEOs. then, and it is assuredly unwise now. holes have come and gone over the Nothing in the history of the first Let’s repeal this unfair law and give years, the principle embodied in that amendment requires the protection of health insurance consumers the same law that corporations aren’t free to such activities. To the contrary, Con- benefits of free, open, and fair competi- spend unlimited dollars to influence gress long has been understood to hold tion that all Americans enjoy. political campaigns is a cornerstone of the power to protect the electoral proc- Let me finally add that the state of our American system of government. ess from the corrupting flood of cor- the health insurance market reinforces That principle now appears to be at porate money. This is because, as the the need to which I have spoken, and so risk as the Supreme Court may be Supreme Court long has recognized, a many of my colleagues have spoken be- poised to open the floodgates now hold- corporation holds no inalienable right fore, for an efficient, nonprofit public ing back corporate cash. to participate in an election. Unlike health insurance option. The health in- In September, the Supreme Court the people from whom the sovereign surance industry has been artificially heard oral argument in Citizens United power of the State is drawn, a corpora- sheltered by government for decades, v. The Federal Election Commission. tion is created by and subject to the building huge profit margins, massive Citizens United is an organization that sovereign power of the State. Indeed, market share, and colossal overhead accepts, channels, and funnels cor- as Chief Justice John Marshall ex- and administrative costs. Now these porate funding. It sought to broadcast plained in 1809, only 18 years after rati- fication of the first amendment, a cor- same companies argue vehemently a documentary attacking our former poration is ‘‘a mere creature of the against the public option on the colleague, Senator Clinton, now Sec- law, invisible, intangible, and incorpo- grounds that it would amount to gov- retary of State Clinton, at the time a real and certainly not a citizen.’’ ernment interference—government in- candidate for President, on On Demand In 1906, a century later, the Supreme terference with their government pro- cable broadcasts. Current law prohibits Court explained that: tection from competition. That irony the broadcast of this kind of corporate The corporation is a creature of the state. just doesn’t pass the laugh test. advocacy on the eve of an election. It is presumed to be incorporated for the According to the AMA study I quoted Citizens United filed a lawsuit arguing benefit of the public. It receives certain spe- in the beginning of my remarks, Rhode that the law infringed on its first cial privileges and franchises, and holds Island is the second most concentrated amendment rights. them subject to the laws of the state and the health insurance market in the coun- Many observers expected the Court limitations of its charter. Its powers are lim- try. Just two insurers control 95 per- to rule narrowly on the case, perhaps ited by law. cent of the market. My constituents focusing on whether McCain-Feingold Corporations are created by govern- desperately would like the chance to applies to On Demand broadcasts. In- ment charter. They are legal fictions, choose a public option and would ben- stead, after hearing oral argument, the tools for organizing human behavior. efit from a more competitive health in- Court asked for an additional briefing Neither logic nor history justifies surance market, one in which vigorous and a new round of oral argument, unleashing them from the bonds of gov- competition brings down costs and im- something the Supreme Court does ernment to master and control the proves the quality of care and encour- very rarely, to consider whether the very government that created them— ages health insurers to treat people de- first amendment bans such restrictions new monsters on the political land- cently. on corporate campaign spending. There scape, bending public wealth to their Mr. President, I have concluded the is some indication that the activist peculiar private purposes. How might they do that? Well, let’s remarks on the McCarran-Ferguson ex- conservative wing of the Court believes look at one recent case involving Bank emption. I wish to turn to another it does. We may be on the verge of an- topic, but I see the majority whip on of America. other effort by a Roberts court to ad- All of us remember in September of the Senate floor, and I would be de- vance its ideologically charged view of 2008, Bank of America announced that lighted to yield to him if he wishes to the Constitution. In so doing, the it would buy Merrill Lynch for $50 bil- take a moment. Court would overturn its own long- lion. In August of this year, the Securi- I will continue, then. I thank the dis- standing precedents, opinions such as ties and Exchange Commission filed a tinguished majority whip. Austin v. Michigan State Chamber of civil suit against the Bank of America BIPARTISAN CAMPAIGN REFORM ACT Commerce where Justice Thurgood alleging that it had made a misrepre- Mr. President, I wish now to say a Marshall warned of ‘‘the corrosive and sentation to its shareholders that Mer- few words about the colloquy that took distorting effects of immense aggrega- rill Lynch would not pay bonuses to its place between Senator MCCAIN and tions of wealth that are accumulated executives in 2008 when, in fact, Bank Senator FEINGOLD on the Senate floor a with the help of the corporate form and of America had agreed that Merrill few moments ago over the need to pro- that have little or no correlation to the Lynch could pay up to $5.8 billion in tect our Nation’s political system from public support for the corporation’s po- bonuses to its executives. That is the the influence of corporate money. litical ideas.’’ background. For more than a decade, Senators Should the Court upturn so much Bank of America and the Securities MCCAIN and FEINGOLD have been stal- long-settled law, it would upend our and Exchange Commission submitted a wart defenders of the integrity of our entire political system and we could proposed final consent judgment pro- political system, and they achieved a see a new era of corporate influence posing to resolve that case by giving hard-fought victory in 2002 with the over politics not seen in the history of $33 million of shareholder money to the passage of the Bipartisan Campaign our Republic. Securities and Exchange Commission. Reform Act, which everybody around Imagine for a moment what our po- The U.S. District Court in New York here knows as the McCain-Feingold litical system would look like if the took a look at this proposal and threw law. As they said in their remarks, we Court takes the fateful step of allowing it out. The judge rightfully rejected it face a real danger that an activist Su- corporations to unrestrictedly spend as neither fair nor reasonable nor ade- preme Court will strike down portions money to influence campaigns. Cor- quate. The Court said it well; I can’t of that law, overturn the will of Con- porate polluters under investigation by improve on the Court’s decision: gress and the American people, and the Department of Justice, running un- The parties were proposing that the man- allow corporations to spend freely in limited advertisements for a more agement of Bank of America—having alleg- order to elect and defeat candidates sympathetic Presidential candidate; fi- edly hidden from the bank’s shareholders

VerDate Nov 24 2008 01:36 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.066 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10630 CONGRESSIONAL RECORD — SENATE October 21, 2009 that as much as $5.8 billion of their money, kets. In other words, they can make chines and equipment, and now have shareholder money, would be given as bo- good on their threat 2 weeks ago that depleted their savings and do not know nuses to the executives of Merrill who had they are going to raise health insur- where to turn, and they are frightened. run that company nearly into bankruptcy— Listen to the words a husband and fa- would settle the legal consequences of their ance premiums if we pass health care lying by paying the SEC $33 million more of reform in America. There is nothing we ther from Joliet, IL, has written to me: their shareholders’ money. can do to stop them, short of creating I am one of the millions who has become a competitive model where they might dependent on my unemployment benefits to As the Court noted, this was all done help carry our family from week to week. ‘‘at the expense not only of the share- have an actual competitor in markets such as Rhode Island and Illinois. It is I’ve been employed full time since I was le- holders, but also of the truth.’’ gally old enough to work and have always That is a pretty stark example of known as the public option. Some peo- had a job. corporate management trying to use ple brand it as socialism or some wild I worked at the same company for 8 years shareholder money to serve its own French idea, but what it comes down to before losing my job due to lack of work. ends, even against shareholder inter- is basic competition—something the Confident that I’d find a job right away, I ests. Well, guess whose interests cor- health insurance companies loathe. Be- didn’t sweat it. But I haven’t. Eighteen cause of the antitrust exemption, months later and I’m still unemployed and porate managers would pursue politi- terrified because I’m about to receive my cally if they could open the spigots of McCarran-Ferguson, they have not last unemployment check. shareholder money in elections. been held to the same standards as any I have two young children, a modest house, Longstanding statutes and judicial other business in America. one vehicle and a lot of bills. I’m horrified at precedents that limit corporate in- I believe Senator LEAHY is on the the thought that I won’t be able to pay my volvement in campaigns rests on the right track. It is part of the health bills or put food on our table. We just got hit well-established and long-accepted rec- care reform. I know he is supported by with unforeseen medical bills that the insur- ance company has decided not to cover (ap- ognition that corporations and their Senator HARRY REID, the majority parently vaccinating children falls under the corrupting self-interests must be con- leader, that we should repeal the ‘‘unimportant’’ category), my truck needs trolled. There is no reason now for a McCarran-Ferguson antitrust legisla- tires and brakes, but we can’t afford to pay fundamental rethinking of such a plain tion as it exists today. for either, and my refrigerator is threatening and well-settled principle. The right- I concur with Senator WHITEHOUSE as to die on me. wing of the Supreme Court will be hard well on the notion that the case which My entire world feels like it’s crumbing pressed to justify departing from such is now pending before the U.S. Supreme around me but I was confident that the gov- settled understandings of the first Court could, in my mind, completely ernment, my government, would be there to destroy our political climate and cam- back us up and I’m appalled that this exten- amendment, from the century-long tra- sion is being held up. dition of controlling corporate spend- paigning in America. If we allow cor- Without this extension, things are going to ing, to invent new constitutional porations to be exempt from limita- get much worse. I’m scared. Please don’t let rights for corporations against real tions in their involvement in this polit- us fall through the cracks. human beings. ical process, it is virtually the end of I say to the Senator from Rhode Is- In closing, I stand with my col- campaigns as we have known them. land, I am sure he has received similar leagues, Senator MCCAIN and Senator It is time for us to not only endorse messages from his State, and I am sure FEINGOLD, in readiness to do what it the position that has been expressed by our Republican colleagues have re- takes to protect our system of cam- Senator MCCAIN, Senator FEINGOLD, ceived similar messages. They have paign finance laws from the danger of and Senator WHITEHOUSE, but also step held us up in our attempt to extend un- corporate corruption. I look forward to back and take an honest look at this employment benefits to millions of working with them and my other col- system, which I think is unsustainable people just like the man who wrote to leagues to ensure that our elections re- and intolerable. me from Joliet, IL. main enlivened by a robust debate I have introduced legislation with Here is something I just learned. The among human participants in which Senator SPECTER calling for public fi- Republicans say: We cannot go onto CEOs don’t have favored princely sta- nancing of campaigns. When will we unemployment benefits because we tus because they can direct corporate ever reach the conclusion that this sys- want to offer some amendments. This funds to drown out people’s voices. tem, if it is not corrupt, is corrupting? is a common plank we hear from them, I thank the Presiding Officer, and I In order to take the big money out of that they don’t have enough of a yield the floor. politics, whether from corporations or chance to offer amendments. I have not The PRESIDING OFFICER. The ma- from individuals, we need to move to a seen the amendments, but they were jority whip is recognized. model that has been embraced by described to me. I think the Senator Mr. DURBIN. Mr. President, let me States that are more progressive in from Rhode Island may be surprised to say at the outset the Senator from their outlooks. The States of Maine learn that two of the amendments they Rhode Island has addressed two issues and Arizona have moved in this direc- want to offer—the reason they are that are timely and important. I cer- tion. We should as well. holding up unemployment benefits is tainly concur with him and cosponsor I support public financing, and I hope because they want to take another the legislation offered by the chairman our Rules Committee can consider a whack at ACORN. Think about that. of the Senate Judiciary Committee, hearing on this important measure The Republican Senate leadership has Senator PATRICK LEAHY, which would soon. reached the point where they would repeal the McCarran-Ferguson Act as UNEMPLOYMENT INSURANCE BENEFITS consider amendments on the organiza- it relates to health insurance compa- Yesterday, I came to the Senate floor tion of ACORN as an alternative or at nies and medical malpractice insurers. to talk about a Republican hold on our least holding up even the most basic The McCarran-Ferguson Act, since the efforts to extend unemployment insur- unemployment benefits for unem- 1940s, if I am not mistaken, has ex- ance benefits to millions of Americans. ployed workers across America. empted the insurance industry from These are people who have worked hard ACORN is a controversial organiza- antitrust regulation, which literally their entire adult lives and are strug- tion. I know that as well as anyone. I means those insurance companies, ex- gling now to make ends meet. Some of said the people who were disclosed on a empt from the supervision of the Jus- them earned six-figure salaries and video several weeks ago should be held tice Department, can engage in con- others more modest incomes, and now accountable. I know they have been duct absolutely illegal and unaccept- they are struggling to put food on the fired. And if they have broken laws, able by any other corporation in Amer- table. Some had high-ranking bank they should be prosecuted, period. I ica, save one. Organized baseball is jobs, others more mundane and routine called for an investigation of ACORN’s given the same basic exemption for jobs. But they are all in trouble, and involvement with the Federal Govern- reasons that are lost in the pages of they are counting on us to let them ment to find out if there has been history. But I will say that under the have the money they put into a fund wrongdoing and misuse of Federal current McCarran-Ferguson law, the for their unemployment. funds. We have gone even further on health insurance companies have the These people worked for years on fac- the floor of the Senate to actually bar- power to fix prices, to allocate mar- tory floors, building expertise in ma- ring ACORN from doing business with

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The hate crimes bill now being When you look at this, this is such a lies. These are families we value in this considered would expand coverage so vacuous, frivolous, embarrassing out- country. These are families who de- that hate crimes could be prosecuted come that we would say to people like serve a fighting chance. wherever they take place. Federal pros- the man who has just written to me: I say to my Republican colleagues ecutors would no longer be limited to Sorry, we cannot give you the peace of who have stopped the Democrats from these six narrow categories. mind you get with an unemployment extending unemployment insurance Second, the bill would expand the check; we have to take another whack benefits: What are you waiting for? categories of people covered under the at ACORN and we have to hold up the Don’t you receive the same e-mails, Federal hate crimes law. The current bill for weeks until we satisfy a few mail, and phone calls we receive? You law provides no coverage for hate Senators who cannot get enough of this have unemployed people in your State. crimes based on the victim’s sexual ori- exercise. I don’t think it is responsible. Clearly, they need help. entation, gender, gender identity, or I sure don’t think it is fair. And I can Mr. President, 50,000 families in Illi- disability. Unfortunately, statistics tell you that the people who are suf- nois will lose their unemployment in- tell us that hate crimes based on sex- fering because they lost their jobs and surance, while they look for work, by ual orientation are the third most com- are feeling the pain and frustration are the end of the year if the Senate does mon after those based on race and reli- not going to be satisfied to know a few not act. Some seem to be worried about gion. About 15 percent—one out of six Republican Senators want to offer an- how to pay for this extension, but we or seven—of all hate crimes is based on other amendment on ACORN. have paid into this for years. Workers sexual orientation. We cannot ignore Listen to the frustration and pain of put in a little bit of money out of their this reality. a veteran from Cicero, IL. He writes: paychecks, and employers as well. It Let me address one or two arguments My age is 61. I have been unemployed since goes right into a fund to cover unem- made against this bill. March 2008. I am actively looking for work. ployment. So it is not as if the money Many have written to me and said It has been more than 6 months since I’ve is not there; it is just the political will they believe this bill would be an in- even had an interview. is lacking. Unfortunately, there are fringement on religious speech. Their When I’ve had interviews, I feel that once other things that are more important the interviewer sees my gray hair, I am concern is that a minister in a reli- eliminated from competition, saying I’m to some people on the other side of the gious setting could be prosecuted if he over qualified. aisle. sermonizes against homosexuality and I’m realistic, and willing to take a cut in I say to my colleagues in the Senate, then a member of his congregation as- pay to [get a job]. it is time for us—in fact, it is over time saults someone on the basis of their What I’m writing about is the extension of for us—to pass extension of unemploy- sexual orientation. I certainly under- unemployment benefits. I’ve received notices ment benefits. stand this, but their concern is mis- from the State of Illinois my extended bene- HATE CRIMES LEGISLATION fits and emergency benefits from the State placed. of Illinois have expired. Mr. President, the Defense authoriza- The chair of the Senate Judiciary I understand that the House [of Represent- tion bill includes hate crimes language Committee, Senator LEAHY, held a atives in Washington] has voted to extend which for several years has been passed hearing a few months ago with Attor- benefits by an overwhelming majority. But by both the House and the Senate only ney General Eric Holder. I attended the the extension is being held up in the Senate. to see it blocked by filibuster threats hearing, and I asked the Attorney Gen- Sir, I am facing losing my home and all my or by the threat of a veto. What a dif- eral of the United States pointblank possessions that I can’t pack in my car. ference a year has made. When Con- I must urge you once again to look posi- whether a religious leader could be tively and in a timely manner to a vote in gress took up the hate crimes bill last prosecuted under the facts I just de- the Senate. Now, I must also ask you to con- Congress, President George W. Bush scribed. This is what the Attorney Gen- sider extending relief to those who no longer called it ‘‘unnecessary and constitu- eral said in response to the hypo- have benefits. tionally questionable.’’ He said he thetical question I raised: I have now applied for State welfare bene- would veto it. This bill seeks to protect people from con- fits. I am now waiting for my scheduled The American people said last No- duct that is motivated by bias. It has noth- interview to have my application reviewed. vember that they wanted a new Presi- ing to do with regard to speech. The minister All of these people have been helped dent and a change. They wanted our who says negative things about homosex- by unemployment insurance. All of country to move in a different direc- uality, about gay people, this is a person I them are at risk of losing that lifeline. tion. President Obama is doing that. In would not agree with, but is not somebody Since I spoke on the floor yesterday this case, he is supporting the hate who would be under the ambit of this stat- about the Republican obstructionism crimes legislation. ute. stopping us from bringing up unem- This bill has another important This clear representation from the ployment benefits, 7,000 people have champion who sadly is no longer with Nation’s top law enforcement officer lost their unemployment insurance, us. Senator Ted Kennedy of Massachu- puts to rest, in my mind and the mind 7,000 more will lose it today and 7,000 setts was our leader on this issue for of any reasonable person listening to more tomorrow. Why? So that several over a decade. I only wish he were here it, any misunderstanding people might Senators can have another amendment to vote and join us on the passage of have about how this law would work. attacking ACORN. Does that make any this important legislation. Nobody It is also important to note that the sense? Is that fair or just? These Sen- spoke to this issue with more author- hate crimes bill requires bodily injury ators ought to go home to their States ity and clarity than Senator Ted Ken- before prosecution. Words are not and tell the people who are out of work nedy. He was the heart and soul of the enough. It does not apply to speech or and not receiving unemployment: Senate, and passing this bill will honor harassment. It does not apply to those Sorry, we can’t help you yet because the great work he gave in his public ca- who would carry signs with messages we have a few more political items to reer to the cause of civil rights. which exhibit their religious belief. At- work on, an agenda. I generally believe Congress should torney General Holder assured the Sen- Republicans in this body, unfortu- be careful in federalizing crime, but in ate that unless there is bodily injury nately—some of them—are too con- the case of hate crimes, there is a dem- involved, no hate crimes prosecution cerned about the political agenda and onstrated problem and a carefully could be brought. I don’t know how he not concerned enough about the human crafted solution. could have been clearer and more de- agenda of hard-working Americans out There are two parts to this problem. finitive. People who listen to his state- of work. Mr. President, 1.3 million First, the existing Federal hate crimes ment in good faith will understand it.

VerDate Nov 24 2008 01:39 Oct 22, 2009 Jkt 089060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\G21OC6.068 S21OCPT1 tjames on DSKG8SOYB1PROD with SENATE S10632 CONGRESSIONAL RECORD — SENATE October 21, 2009 I also note that 24 States, nearly half It has been over 10 years since Matthew and Bible band as well as Bible study. the States in our Nation, have hate Shepard was left to die on a fence in Wyo- The House of Holiness may best be de- crime laws on the books that include ming because of who he was. It has also been scribed by a verse of Scripture which sexual orientation, and religious lead- 10 years since this bill was initially consid- attests ‘‘Holiness becometh thine ered by Congress. In those 10 years, we have ers are not being prosecuted in those gained the political and public support that house o Lord for ever.’’ It is clear that States. is needed to make this bill into law. Today, Reverend Sanders and his wife are holy That is not the purpose of the hate we have a President who is prepared to sign people who try to live as lights for God crimes law. Prosecutors aren’t looking hate crimes legislation into law, and a Jus- in our world. to put ministers in jail for their reli- tice Department that is willing to enforce it. President Obama once said ‘‘Focus- gious beliefs. To the contrary, the hate We must not delay the passage of this bill. ing your life solely on making a buck crimes bill will actually help religious Now is the time to stand up against hate-mo- shows a certain poverty of ambition. It communities. Understand, 20 percent of tivated violence and recognize the shameful asks too little of yourself. Because it’s damage it has done to our Nation. all hate crimes that are committed in only when you hitch your wagon to the United States are committed on We will honor the memory and leg- something larger than yourself that the basis of religion. This bill would acy of Senator Edward Kennedy by you realize your true potential.’’ This eliminate the narrow requirements passing this Defense authorization con- ideal is exemplified by Reverend Sand- that currently prevent Federal pros- ference report, which includes the hate ers and Emma, as together they serve ecutors from bringing certain hate crimes law language. We need to send others and help make Nevada a better crimes cases motivated by religious this to President Obama, who has place. Whether it be through their vol- bias. promised he will sign it into law. I urge unteer efforts with the Salvation Army Another criticism of the legislation my colleagues to join me in support of or by way of their many other selfless is there is no need to pass a Federal this important legislation. endeavors, the Sanders help to better hate crimes law because some States I yield the floor and suggest the ab- their community. are already doing it on their own. This sence of a quorum. The Sanders and the House of Holi- argument is similar to one we faced be- The PRESIDING OFFICER. The ness Church have a bright future on fore. Almost a century ago, when Con- clerk will call the roll. their horizon. I congratulate the Sand- gress debated an antilynching law be- The legislative clerk proceeded to ers on 57 years of loving marriage and tween 1881 and 1964, almost 5,000 people call the roll. 40 years of saintly service to the Las were lynched in the United States. The Mr. DURBIN. Mr. President, I ask Vegas community. victims were mostly—but not exclu- unanimous consent that the order for f sively—African American. Yet Con- the quorum call be rescinded. HONORING OUR ARMED FORCES gress resisted addressing this problem The PRESIDING OFFICER. Without for generations. Criminal law is pri- objection, it is so ordered. CAPTAIN BENJAMIN A. SKLAVER marily a State and local function. I un- f Mr. LIEBERMAN. Mr. President, I wish pay tribute to CPT Benjamin A. derstand that. An estimated 95 percent MORNING BUSINESS of prosecutions for crimes occur at Sklaver, U.S. Army, of Hamden, CT, that level. But in some areas of crimi- Mr. DURBIN. Mr. President, I ask who died of injuries sustained when an nal law, the Federal Government can unanimous consent that the Senate improvised explosive device detonated and should step in to help. proceed to a period of morning busi- near his dismounted patrol in Murcheh, We have 4,000 Federal criminal laws, ness, with Senators permitted to speak Afghanistan, on October 2, 2009. 600 of which have been passed in the for up to 10 minutes each. Captain Sklaver was assigned to last 10 years. Hate crimes are a sad and The PRESIDING OFFICER. Without Headquarters Company, 422nd Civil Af- tragic reality in America. The killing objection, it is so ordered. fairs Battalion, U.S. Army Reserve, of this past summer of an African-Amer- f Greensboro, NC. Ben Sklaver was a remarkable young ican security guard at the Holocaust TRIBUTE TO REV. AND MRS. man. He lived not only as a true pa- Museum here in Washington, DC, was a MELVIN SANDERS reminder that hate-motivated violence triot and defender of our Nation’s prin- still plagues our Nation. Mr. REID. Mr. President, I rise today ciples of freedom and justice but as a Earlier this year, in my home State to honor Rev. Melvin Sanders and his compassionate ambassador of good will of Illinois, two White men in the town wife Emma Sanders for 40 years of and humanitarian assistance to thou- of Joliet used a garbage can to beat a service to the Las Vegas community. sands in need. 43-year-old Black man outside a gas Mr. SANDERS and his wife moved to Las Though he was called ‘‘Captain’’ by station, while yelling racial epithets Vegas, NV, from Arizona in 1954. Mr. those soldiers around him, he was and stating: ‘‘This is for Obama.’’ The and Mrs. Sanders entered the business known as ‘‘Moses Ben’’ to thousands of victim sustained serious injuries, lac- field successfully and have remained Ugandans who now have clean water erations, and bruises to his head. involved for over 40 years. thanks to Ben’s efforts. After serving Just 2 weeks ago, in Springfield, in Reverend Sanders and Emma Sanders in Africa and being struck by the num- my hometown, three University of Illi- are known all over Las Vegas for their ber of deaths and illnesses resulting nois students were arrested for vi- generosity and warmth toward their from dirty drinking water, he returned ciously beating and punching two men neighbors. He and his wife assisted home and founded ClearWater Initia- while yelling antigay slurs at them. multiple families in financial need and tive. In the short time since its incep- These are incidents in my home have also provided ministerial and tion, with the aid of his parents Laura State, a State I am proud to represent, spiritual outreach to the people of the and Gary, ClearWater Initiative con- but I am not proud of this criminal Las Vegas Valley. The Sanders are structed wells for more than 6,500 peo- conduct, and I don’t think America known as Mom and Dad to literally ple, primarily in northern Uganda. should be proud of it. hundreds of Nevadans. Reverend Sand- Captain Sklaver served as a mes- According to FBI data, based on vol- ers and his beloved wife have been mar- senger of high justice and idealism in untary reporting, there are 8,000 hate ried for 57 years and are the proud par- the best tradition of American prin- crimes annually in America. Some ex- ents of six children, one of whom trag- ciples and patriotism. Our Nation ex- perts think the number is closer to ically preceded them in death. The tends its heartfelt condolences to his 50,000. The hate crimes bill would not Sanders’ church has been in existence mother and father, Laura and Gary eliminate hate crimes, but it will help for 40 years. Sklaver, his brother Samuel, sister ensure these crimes do not go The House of Holiness Church has Anna, and fiance Beth, whom I have unpunished. been open to its congregation for 40 known since she was a baby because In closing, I wish to quote the words years, and may best be described as a she is the daughter of my dear friends of Senator Kennedy when he intro- vibrant and joyful place of worship. Jim and Barbara Segaloff. duced the hate crimes bill in April. The church has Sunday school, after- To Ben’s family and the people he This is what he said: noon service, evening service, prayer touched during his life, we extend our

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