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

Vol. 156 WASHINGTON, FRIDAY, DECEMBER 10, 2010 No. 163 House of Representatives The House was not in session today. Its next meeting will be held on Monday, December 13, 2010, at 10 a.m. Senate FRIDAY, DECEMBER 10, 2010

The Senate met at 9:30 a.m. and was Let us pray. them from evil. Hold them in Your called to order by the Honorable MARK Sovereign Lord, we put our hope in hand and guide them with Your truth. R. WARNER, a Senator from the Com- You. Today, lead our lawmakers to God, be in their heads and in their un- monwealth of Virginia. strive to honor You. May they look to derstanding; be in their eyes and in You for wisdom and seek to do Your their looking; be in their mouths and PRAYER will, relying on Your protection and in their speaking; be in their hearts The Chaplain, Dr. Barry C. Black, of- guidance. Keep them from the slippery and in their thinking. fered the following prayer: places of temptation, as You deliver We pray in Your great Name. Amen.

NOTICE If the 111th Congress, 2d Session, adjourns sine die on or before December 23, 2010, a final issue of the Congres- sional Record for the 111th Congress, 2d Session, will be published on Wednesday, December 29, 2010, in order to permit Members to revise and extend their remarks. All material for insertion must be signed by the Member and delivered to the respective offices of the Official Reporters of Debates (Room HT–59 or S–123 of the Capitol), Monday through Friday, between the hours of 10:00 a.m. and 3:00 p.m. through Wednesday, December 29. The final issue will be dated Wednesday, December 29, 2010, and will be delivered on Thursday, December 30, 2010. None of the material printed in the final issue of the Congressional Record may contain subject matter, or relate to any event that occurred after the sine die date. Senators’ statements should also be submitted electronically, either on a disk to accompany the signed statement, or by e-mail to the Official Reporters of Debates at ‘‘[email protected]’’. Members of the House of Representatives’ statements may also be submitted electronically by e-mail, to accompany the signed statement, and formatted according to the instructions for the Extensions of Remarks template at http:// clerk.house.gov/forms. The Official Reporters will transmit to GPO the template formatted electronic file only after receipt of, and authentication with, the hard copy, and signed manuscript. Deliver statements to the Official Reporters in Room HT–59. Members of Congress desiring to purchase reprints of material submitted for inclusion in the Congressional Record may do so by contacting the Office of Congressional Publishing Services, at the Government Printing Office, on 512–0224, between the hours of 8:00 a.m. and 4:00 p.m. daily. By order of the Joint Committee on Printing. CHARLES E. SCHUMER, Chairman.

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

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We should stand ready to help indivisible, with liberty and justice for all. broad categories: first of all, Afghan build and develop these democratic in- governance; second, development and stitutions. f humanitarian efforts; and, finally, es- The 2009 Presidential election and APPOINTMENT OF ACTING tablishing a sustainable security envi- the 2010 parliamentary elections were PRESIDENT PRO TEMPORE ronment in Afghanistan. rife with problems that seriously un- Since the announcement of a new The PRESIDING OFFICER. The dermined the confidence of the inter- strategy in December of 2009 and the national community in Afghanistan’s clerk will please read a communication deployment of 30,000 additional troops, to the Senate from the President pro ability to conduct elections free of I have sought to carefully monitor U.S. fraud and manipulation. If the elec- tempore (Mr. INOUYE). progress toward its goals. As part of toral process remains deeply flawed, The assistant legislative clerk read this effort, I have paid special atten- the following letter: the Afghan people’s support for the tion to combating the top killer of U.S. democratic process itself may well U.S. SENATE, troops, which, of course, is improvised erode. PRESIDENT PRO TEMPORE, explosive devices. I chaired a Senate Washington, DC, December 10, 2010. While the government has said it Foreign Relations Committee hearing wants to develop a ‘‘strategy for long- To the Senate: on this topic on November 18 and will Under the provisions of rule I, paragraph 3, term electoral reform that addresses in of the Standing Rules of the Senate, I hereby continue to press our government and particular the sustainability of the appoint the Honorable MARK R. WARNER, a our leaders and governments in the re- electoral process,’’ few steps have been Senator from the Commonwealth of Vir- gion to do more to restrict the avail- taken in this direction. The election ginia, to perform the duties of the Chair. ability of components that make up law is in need of serious reform. The DANIEL K. INOUYE, these terrible weapons, especially, of executive branch has nearly exclusive President pro tempore. course, ammonium nitrate, which flows power over the Independent Election Mr. WARNER thereupon assumed the into Afghanistan every day of the week Commission and Electoral Complaints chair as Acting President pro tempore. to make IEDs that kill our troops. Commission. The single nontransfer- I am pleased significant progress has able vote system impedes the develop- f been made by the Department of State, ment of political parties, an essential the Department of Homeland Security, RECOGNITION OF THE MAJORITY long-term way to organize and rep- and the Department of Defense to co- LEADER resent the interests of the Afghan peo- ordinate an all-of-government ap- The ACTING PRESIDENT pro tem- proach to this problem. I wish to ap- ple. pore. The majority leader is recog- Corruption continues to be a serious plaud the recent efforts of the Afghan nized. issue that affects citizens across Af- security forces that seized one metric ghanistan, especially in the southern f ton of ammonium nitrate on Monday part of the country. A recent public in Zabul Province. All the key players SCHEDULE opinion survey conducted by the Wash- appear to be on the same page on this ington Post, ABC News, the BBC, and Mr. REID. Mr. President, following issue, but there still has not been a sig- ARD television in Germany showed leader remarks, if any, the Senate will nificant decrease of these deadly weap- turn to a period of morning business, ons in Afghanistan. I trust that the De- that 55 percent of respondents in with Senator SANDERS of Vermont to cember review by the administration Kandahar say they have been asked for be recognized at 10:15 a.m. to speak for will address the flow of ammonium ni- bribes from the police—55 percent— whatever time he feels appropriate. trate, and I look forward to continuing well above the national figure of 21 per- There will be no rollcall votes during to work closely with the administra- cent. Moreover, most Kandahar resi- today’s session of the Senate. The next tion on this issue. dents say their situation would only rollcall vote will be at 3 p.m. Monday, At a strategic level, too many ques- get worse if they exercised due process December 13, on the motion to invoke tions remain as we head into the De- and filed a complaint about a public of- cloture with respect to the tax agree- cember review. I would like to list ficial. ment. As I announced last night, that some of those right now. U.S. efforts to improve governance at vote will be held open longer than First of all, on the issue of govern- times compete with our security con- usual to allow Senators to make that ance, I have two questions I hope the cerns. There is an inherent tension be- most important vote. December review will address. First, do tween the United States and ISAF I have nothing further. we have a political strategy—a polit- forces in efforts to engage, to combat ical strategy—in place to ensure that extremist elements at the local level f the Afghan Government is prepared to and cooperation with warlords who RESERVATION OF LEADER TIME enact reforms that concretely show the rule over certain areas. While there is an imperative to collect intelligence The ACTING PRESIDENT pro tem- population it represents their key in- and conduct operations that may re- pore. Under the previous order, the terests and concerns? I believe our ef- quire cooperation with local power bro- leadership time is reserved. forts to pressure the Afghan Govern- ment have been at best uneven in this kers, I am concerned the long-term f area, due, in large part, to a reluctance cost of such interaction is very high. MORNING BUSINESS to pressure the Afghan leadership. Are we empowering another generation Any security gains in Afghanistan of local power brokers who have little The ACTING PRESIDENT pro tem- can be easily squandered without seri- regard for representing the interests of pore. Under the previous order, the ous progress on governance. The the local population? That is a ques- Senate will now be in a period of morn- United States, ISAF, and Afghan secu- tion that needs to be asked over and ing business. rity forces are sacrificing too much as over, and we need answers to that ques- The Senator from the Commonwealth the Afghan Government fails to enact tion. of Pennsylvania. reforms in the best interests of the Af- It is a simple fact, disaffection f ghan people. It will be difficult to suc- among Afghan citizens with the central ceed in Afghanistan without a strategy government and local power brokers AFGHANISTAN to help build the institutions of gov- provides recruiting opportunities for Mr. CASEY. Mr. President, this ernance, including the judiciary, polit- the Taliban. This is a serious concern month, the Obama administration will ical parties, and, of course, electoral because it gets to the heart of our en- submit its review of the war in Afghan- institutions. gagement in Afghanistan: Cooperation

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8731 with local warlords can provide short- First, some positive news on this goals. However, the Afghan National term security gains, but what is the issue. We do not hear enough about Army still has issues with attrition long-term impact? I hope the adminis- this. that may impact its ability to main- tration’s December review will address Under the leadership of Lieutenant tain its impressive growth in numbers. this issue. General Caldwell, the NATO Training This month’s review by the administra- Question No. 2: What is the state of Mission-Afghanistan, the so-called tion should clarify projections and de- the reconciliation process with the NTM-A, has been a source of real tail efforts to boost retention. Taliban? I have expressed serious con- progress. The Afghan National Army Literacy is a big problem. The lit- cerns about the impact of negotiations and Police are exceeding—exceeding— eracy rates are very low in the Afghan with the Taliban on women and other their recruitment goals. As of August Security Force and this must be ad- vulnerable groups in Afghanistan. My of this year, the Afghan National dressed. Consider this story from Lieu- concern grew—and I know others’ con- Army’s total strength had grown to tenant General Caldwell. He visited a cern as well—our concern grew in read- 138,164, exceeding the goal for October base in northern Afghanistan where 90 ing the poll numbers from Afghanistan 2010 by more than 8,000 troops. As of percent of the troops claimed they had recently. There was a 13-percent jump August, the Afghan National Police been unpaid for months. To limit cor- from last year among respondents who had an end strength of 119,639, exceed- ruption, the government has been pay- say women’s rights are suffering. ing the 2010 goal of 109,000. These re- ing the troops by electronic funds The December review should address cruitment numbers are an important transfer instead of cash. The troops the current state of play with respect sign of progress, but serious concerns had no idea, however, since they could to these negotiations. The recent Af- remain related to the quality of the not read their bank statements. ghan poll showed that nearly three- force, the retention rate, and the low Think about weapons security. How quarters of Afghans now believe their rate of literacy. can a soldier be sure he has been as- government should pursue negotiations The Afghan National Army has sig- signed a weapon if he cannot read the with the Taliban, with almost two- nificant shortages in officer and non- serial number? Illiteracy is widespread thirds willing to accept a deal allowing commissioned officer leadership. Effec- in the force: Only 11 percent of enlisted Taliban leaders to hold political office. tive junior leaders are essential to a personnel can read, write, or do simple Ultimately, there must be a political professional force since they control math. This creates significant chal- solution to end the war in Afghanistan. immediate on-the-ground situations. lenges in professionalizing the security I am not suggesting we are close at The Ministry of Defense and the force. In response, a huge literacy pro- this time to that result, but we need to training mission in Afghanistan are gram has grown around the fielding of know the degree to which the adminis- working to overcome a shortfall of the Afghan security forces. So we have tration and the Karzai government are more than 4,500 Afghan National Army much to do on that. coordinated and headed down the same officers. There are more Officer Can- I will move to the last part of our path. International engagement on any didate School units, twice as many concerns, and that is on development. negotiation process will be essential to seats in the Integration Mujahedeen A qualified Afghan soldier is much long-term success. Pakistan has a role Course, and larger classes at the Na- cheaper to train and equip on the field to play and is a necessary element to tional Military Academy. than an American, so the overall cost any long-lasting peace agreement. As for noncommissioned officers, the to U.S. taxpayers would certainly di- The next area, security. U.S. oper- Afghan National Army faces a shortage minish as the U.S. forces draw down. ations in southern Afghanistan appear of more than 10,500. Similar expansions But by investing in this large force, to be having a positive impact on Af- in training capacity and direct entry there are long-term implications. Do ghan public opinion. Sixty-seven per- programs are underway to address this we expect to pay for the Afghan secu- cent of the people in the Province of deficiency. According to a recent Pen- rity forces 10 years from now, 20 years Helmand describe their security as tagon report, the gap will not be closed from now? At what point will the Af- good, a 14-percent jump from December until the end of 2012. ghan Government be able to collect its 2009. Nearly two-thirds of Helmand The Pentagon also reports we face a own revenue to fund its security as residents state that Afghanistan is on shortfall of more than 900 international well as other priorities? the right track. trainers in Afghanistan. I hope our al- That is, again, why responsible Af- This is an indication that positive lies in ISAF can help to address this ghan governance is essential. While the momentum has been built in Afghani- very important training need. Many international community will shoulder stan’s most sensitive region. But such European countries have a proud his- much of the humanitarian and security gains can be short-lived, and in order tory of developing elite paramilitary burden in the short term, the Afghan to facilitate a sustainable security, we forces. This valued expertise is needed Government needs to take steps to in- must take a long-term approach to en- right now in Afghanistan. crease its domestic revenue collection, sure that the Afghan Government can While expanding capacity is critical as well as put into place a sound legis- provide for its own security. to growing the force, I hope the Decem- lative framework to encourage invest- The training of the Afghan National ber review by the administration will ment. They need to develop a minerals Security Forces is a key threshold address not just the efforts to grow framework law, and they also need to question. We cannot allow Afghanistan more leaders but also describe how put in place changes to bring about a to once again become a haven for al- these leaders are laying the foundation stronger infrastructure. Qaida or other extremist groups to for professionalizing the Afghan na- Let me close with a reflection upon launch attacks against the United tional security forces. our troops. We have the obligation here States. ISAF forces have denied al- Retention and attrition rates. For in the Senate to ask and have answers Qaida this haven since 2001. However, years, the Afghan national security to very critical questions, whether we cannot provide this security in per- force’s attrition rate has been an issue. they relate to development or govern- petuity. The Afghans have to assume Facilitating rapid growth while in- ance or security, and especially on the more responsibility for their own secu- creasing quality requires that reten- question of security. We also have an rity, and we must do all we can to pre- tion rates remain high. obligation to remember and keep in pare the Afghan National Security In January 2010, the Joint Coordina- mind the human toll. Forces for that day. tion and Monitoring Board approved SSG SEAN FLANNERY So where do we stand at this point? I the goal of developing a force of 305,600 In the State of Pennsylvania, as in a would have to say the view is decidedly personnel by October 2011. Recruiting lot of States, we have lost a lot of sol- mixed. For years, the international efforts compared with increased reten- diers. To date, we have lost 60 service- community exercised what can be char- tion have allowed the force to grow members since the beginning of the acterized as gross neglect in building ahead of schedule so far. Moving for- war in Afghanistan. In Iraq, we got to Afghan security forces, and only re- ward, projections remain uncertain. the number of about 196—just below cently have we begun to take on this The Defense Department reports the 200. Let me share one story as I con- task. police have met attrition and retention clude. Two weeks ago, Pennsylvania

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Undoubt- lative director, and in that position he evacuation helicopter. They stepped on edly, his work ethic and his straight- continued to excel and became a vital an improvised explosive device which forward approach to public service and integral part of my efforts here in killed Sean and another soldier. Staff have greatly benefited us all. Jace is the Senate. I grew to depend on him Sergeant Flannery was 29 years old. sorely missed by all of us on our staff more and more, and in January of 2008, After he graduated from Wyomissing and all of us in our office. He provided Jace took over as my Chief of Staff. High School in 1999 and Shippensburg strong leadership at a time when it was I used to joke with him that working University, he was determined to serve absolutely crucial to us. for me was only a hobby, because he his country. He was on his fourth tour To fully understand the void created didn’t need the money. Of course, any- of duty after having served two tours by Jace’s absence, one has to know a one who knew and worked with Jace in Iraq and a prior tour in Afghanistan. bit more about him. When you walked can attest that is simply not true. He He earned a Bronze Star because of his into Jace’s office, you were greeted by put his heart and soul into his work in heroism and then another commenda- proudly displayed Utah college and the Senate. For Jace, failure wasn’t tion last week. One of his high school university pennants. Aside from mak- permissible, so he spent early mornings classmates paid tribute to his friend at ing an interesting and welcoming envi- and late nights ensuring the work was a service earlier this week. He said: ronment, the banners proclaimed done and done right. His commitment His fellow soldiers talked about how much Jace’s passion for sports. Like me, he to me personally and to my work here they respected him and what a great leader spent his boyhood as an avid basketball in the Senate was rooted in his belief— he was and how they had true love for him, player. I regret we never had the oppor- a belief he reiterated at every oppor- and not a word of it surprised us. He was the tunity for a one-on-one game, but I am tunity—that what we were doing was type of guy everybody wants their son to still convinced I would have kicked his in the best interests of our country and be—loyal, humble, and generous. I was hon- tail and I would have won. Although for the people of Utah. ored to have him as a friend. when I think about it, he is in a lot I think what I appreciated most That is what Matt Rader, a class- better shape than I am. about Jace is his unwavering honesty. mate of Sean Flannery’s, said about His love of hoops led Jace to play In a town filled with people who only Sean. basketball at Snow College in central want to tell you what they want you to All of us are honored to represent Utah. Soon thereafter, Jace served a 2- hear, Jace was refreshingly direct and these young men and women who fight year mission for the Church of Jesus straightforward. I have always attrib- for us and some who die for this cause. Christ and Latter Day Saints in the uted this to the fact that he is, to put Today we pray for those families. We Philadelphia, PA area. Being from it bluntly, just a little bit smarter— pray for Sean and his family. But in smalltown Idaho, I can only imagine maybe not just a bit smarter, a whole the larger sense I guess we pray for the new experiences Philadelphia had lot smarter—than most people. People ourselves as well. We pray that we are to offer. It undoubtedly left quite an who don’t see the big picture and who worthy and can prove ourselves worthy impression. His wife Cori credits her can’t predict what might happen down of their valor. husband’s time in Philadelphia for his the line have the need to hedge bets, One of the ways Members of the Con- willingness to venture back to the east cover bases, and speak without com- gress can prove ourselves worthy of coast after college. mitting. Jace Johnson has never had that valor is to ask and demand an- Jace and Cori met while they were that problem. When a goal is identified swers to these very difficult questions, attending college at Brigham Young and a plan set in motion, he is usually no matter who the administration is University in Provo, UT. They have a few steps ahead of everyone else and and no matter what party, because we three wonderful children—Ashley, Ben- he can see where problems might arise. have to get this policy right. We have jamin, and Christian. Upon finishing Chances are he has already come up an obligation to get it right, for Sean school at BYU, Jace and Cori made the with solutions to those problems. An Flannery and for those who have loved move to Washington, DC, so he could individual with that kind of rare in- and lost, and for our country. attend graduate school at George sight and understanding has the license Mr. President, I yield the floor. Washington University and earn his to speak directly where others would The ACTING PRESIDENT pro tem- MBA. hem and haw. I was lucky enough to be pore. The Senator from Utah. While Jace was still in school, he ac- the beneficiary of Jace’s ability to Mr. HATCH. Mr. President, I ask tually worked in my office as an in- speak frankly and honestly, and on unanimous consent that at the conclu- tern. He didn’t stay long, however, be- more than one occasion that meant I sion of my remarks, the distinguished cause as the saying goes, he had bigger was on the receiving end. I think I can Senator from Rhode Island, Senator fish to fry. By the time he returned to speak for every Member of the Senate REED, be given time on the floor for his Capitol Hill to work on a more perma- when I say that that kind of support remarks. nent basis, he had already achieved re- from staff is a treasured commodity. The ACTING PRESIDENT pro tem- markable success in the business It is very clear I will miss Jace John- pore. Without objection, it is so or- world. After working for a few years at son on my staff. However, I think it dered. Visa International, he became the di- would be even more telling to hear f rector of finance at the Corvis Corpora- from some of the people of Utah who tion, a cutting-edge network and media TRIBUTE TO JACE JOHNSON have high praise for Jace and the serv- solutions company. Jace was the third ice he has rendered. Mr. HATCH. Mr. President, I wish to employee to be hired at Corvis when it Utah Governor Gary Herbert had this take a moment to pay tribute to some- was still a startup, and while he was to say: one who is very special and very dear there he helped secure financing for the Jace is a man of great insight and under- to me, my former Chief of Staff, Jace company as it prepared to go public in standing. He is able to think strategically Johnson. Over this past recess, I the year 2000. Jace’s contribution to and anticipate potential roadblocks, which learned that my Chief of Staff, Jace Corvis allowed the company to grow has, and will continue, to serve him well. I Johnson, would be leaving the Senate from a small startup employing a wish him the best of luck and success in his to pursue opportunities in the private handful of people into an international new position. sector. company with more than 3,000 employ- Jason Perry, Governor Herbert’s Change often catches us by surprise. ees and a value of $40 billion. Chief of Staff, said: As the Presiding Officer can imagine, I Jace joined my staff in 2002, coming I have had the opportunity to work with had come to rely on the talents and in- on as a legislative assistant, working Jace for many years. His uncanny ability to

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But KIT BOND has done a lot to casions for his keen insight, depth of wis- them, and to, in some small way, help ensure there is at least a capacity to dom, and wise counsel. He has proven to be them do what they have done so well— help people who need that kind of help. a tremendous resource and has truly made a represent their States with fidelity, I thank him for that and commend him difference for me, Senator HATCH, the people of the great State of Utah, and for our coun- with great effort, and to move the for so much of what he has done for the try. His legacy of service will stand as a agenda of the Nation forward. people of Missouri and the people of benchmark of excellence for years to come. EVAN BAYH this Nation. Former Utah Republican Party EVAN BAYH, a colleague and friend. SAM BROWNBACK Chairman Stan Lockhart said this: We served together on the Banking I congratulate Governor-elect SAM Jace Johnson is a class act. In positions of Committee and the Armed Services BROWNBACK. He has decided to leave responsibility and authority, he is approach- Committee. His lovely wife Susan and the rigors of the Senate for the tran- able and down to earth. In an environment of their two children have contributed ex- quility of being a Governor. I see our hardball politics, he maintains integrity. traordinarily to Indiana as a Governor, Presiding Officer, who enjoyed the With many issues to deal with on a daily and then as a Senator serving the Na- tranquility of being the Governor of basis, he understands the big picture and tion. Virginia. I know SAM is going to do small nuances of good policy. I always liked the fact that he understands the private sec- I can recall very early on in the oper- great, but I think at some moment he tor, with a successful background in the ations in Iraq, where it became clear to might mop his brow and say that it technology industry before he came to Wash- Senator BAYH that unless we armored wasn’t quite as hectic back in the Sen- ington, D.C. I’ll miss Jace. our humvee vehicles, thousands and ate. A prominent Salt Lake City lawyer thousands of soldiers would be at risk, Along with Mary and his family he and a political leader, Doug Foxley, in and also marines, sailors, and airmen. has distinguished himself. SAM is some- the State said about Jace: He fought tenaciously to ensure, one who is indefatigable when involved Behind that I-am-just-a-boy-from-Black- against initial opposition, that we were in an issue. He does it from principle foot-Idaho, was a keen, astute political mind able to begin to armor those vehicles, and conscience. We appreciate that. who always had Orrin’s interest at heart and begin to develop new generations of ar- I was pleased to work with him on had a quality of making everyone feel that mored vehicles to protect our soldiers. legislation I introduced, the Conquer he was their best friend. Not diminishing any So, quite literally, his efforts saved the Childhood Cancer Act, which became other person who has worked for Orrin, but lives of thousands of young Americans. law. That is one example of his great Jace was a delight and any trip to D.C. with- For that alone, we owe him a huge debt skills as a legislator. In foreign affairs out seeing Jace was not a trip. A true com- mitted conservative who was not an obnox- of gratitude. he was someone who kept watch on ious ideologue, but one who truly believed In every endeavor, from issues of areas of the world which otherwise what he espoused: hard work, honor, com- children’s health to education policy, might have been neglected. His efforts mitment, dedication to family, Church, and he brought a thoughtful, measured, and with respect to Darfur, striving to country and imbued with a belief in limited brilliant mind to bear that is hard to bring justice and peace to that region, government and in the private sector were match. I wish him the very best. are particularly commendable. I thank guiding principles. This, coupled with com- ROBERT BENNETT the Senator for his service and wish passion for those less fortunate, is the Jace him well as he assumes the daunting Johnson legacy. BOB BENNETT and I served together on the Banking Committee. His responsibilities as Governor of the Mr. President, that is high praise, thoughtful questioning and his deep State of Kansas. and we have lots of others who feel the knowledge of the subjects were critical JIM BUNNING same way. I will leave it at that. on so many different issues. I remem- Senator JIM BUNNING and I served to- During my time here in the Senate, I ber when we were trying to get the ex- gether for many years on the Banking have been extremely fortunate when it tension of the Terrorism Risk Insur- Committee. JIM and Mary Catherine comes to my staff. I have had the privi- ance Act completed so the markets— and their family brought so much to lege of serving with some of the most particularly the markets for large not only the Senate as an organization, gifted and devoted individuals our Na- properties—would not freeze up, he was but to the Senate as a group of individ- tion has to offer. Each of them has instrumental in getting that done. uals. JIM was one of the first and most brought something unique and impor- That is just one example of what he insightful observers and critics of the tant to the table. But I have to say has done throughout a career of public growing issues in the securities mar- that, even among the select fraternity service to the people of Utah and of ket. He did it based upon his experience of talented Senate staffers, Jace John- this Nation. I wish he and Joyce the as a financial stockbroker in the world son belongs in the hall of honor, an very best as they continue to serve, as of finance. He did it also with his grasp elite class that very few have been or I am sure they will, this Nation and of common sense and looking at things will be able to attain. I have no doubt that Jace will suc- their State of Utah. carefully and pragmatically, based on ceed in the new position. Success has KIT BOND Main Street not on financial centers. been the defining characteristic of KIT BOND and Linda Bond have served We worked together on the Securities every endeavor he has undertaken. with such distinction also. As a mem- Committee, and we did it in a way that While the selfish part of me wishes he ber of the Appropriations Committee, I enjoyed the collaboration immensely. would have stayed in the Senate just a he has made wise and judicious deci- A focus on the issues and their im- little bit longer, I want to wish Jace, sions about how we invest in this coun- portance to the country was also in the his wife Cori, and his whole family the try. In that process, he never forgot the forefront of his mind. He distinguished very best going forward. obligation to groups who are often himself immensely. I wish him well. I yield the floor. overlooked. ROLAND BURRIS The ACTING PRESIDENT pro tem- One of the areas where he has done so Senator Roland Burris brought a pore. The Senator from Rhode Island is much work, and so effectively, has great bit of vitality and energy to the recognized. been on the issue of homelessness. His Senate in his time here. I wish Roland f efforts, joined by our colleagues and and Berlean the very best. He has had friends, BARBARA MIKULSKI and PATTY a remarkable career in Illinois as TRIBUTES TO RETIRING MURRAY, have made a real difference in someone who was in the banking indus- SENATORS providing effective and efficient shelter try and then public service—been a Mr. REED. Mr. President, I rise for so many in our large communities pathbreaker in so many different ways. today to pay tribute to our colleagues and in our rural areas, who otherwise When he came to the Senate, he came

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JUDD GREGG To all of these colleagues and their BYRON DORGAN Senator JUDD GREGG and Kathleen families, my deepest appreciation and Next is BYRON and Kim DORGAN and are stalwarts in the Senate, with their my profoundest respect. Mr. President, I yield the floor. their family. Again, BYRON was an in- 18 years of service. I worked very close- The PRESIDING OFFICER (Mr. tegral part for many years in this Sen- ly with Judd on so many issues but most recently on the Dodd-Frank bill, REED). The Senator from Virginia. ate. He is one of those individuals Mr. WARNER. Mr. President, I ask where we worked collaboratively on whose wisdom you appreciate more and unanimous consent to speak as in this whole complex concept of deriva- more each day. He is someone who morning business for 5 minutes and tives. I was impressed with his intel- spoke years ago about the offshoring of that Senator SANDERS be recognized lect, his grasp, his balance, and I think jobs, and he spoke years ago about a upon the conclusion of my remarks. tax system that doesn’t reward invest- we both pushed ourselves to think The PRESIDING OFFICER. Without ment in American jobs but ironically harder, to do better, and to come up objection, it is so ordered. might encourage disinvestment of with a solution, frankly, that was f those jobs. He is someone who spoke much better than I know I could have with reason, candor, thoughtfulness, done individually. So I thank JUDD RECOGNIZING FEDERAL and facts about issues that the rest of GREGG for what he did there and on so EMPLOYEE us are beginning to recognize today are many other things. DEBORAH AUTOR critical to the future of this country. TED KAUFMAN Mr. WARNER. Mr. President, I rise We will also miss his steady hand on My dear friend Ted Kaufman and again to recognize the service of an- the Appropriations Committee, where Lynne. We traveled the world to- other great Federal employee. This is a he battled to ensure that the reason- gether—including Afghanistan mul- tradition that was started by our friend able priorities of this Nation were met. tiple times. He served with such dis- and former colleague, Senator Kauf- His support and help in terms of tinction. He took up the effort to en- man, and I am proud to carry on that LIHEAP funding and his help to me sure that our securities markets in tradition. But I want to first say that personally in so many different ways is particular are well regulated, espe- I appreciate the remarks of the Pre- deeply appreciated. I thank him for his cially in regard to the new phe- siding Officer about our colleagues who service. I know he will continue to pro- nomenon of high-frequency trading. are leaving this body, and I share his vide, in his writings and speeches, the And it is no coincidence that just this great respect for not only Senator wise and thoughtful insights that, week, we had a hearing on high-fre- Kaufman but all of the colleagues who again, as we look back, I think we quency trading. Ted has not let us for- are leaving the body at the end of this should have heeded with much more get that very critical issue for the fu- Congress. energy and enthusiasm when he spoke ture. Mr. President, oftentimes we forget them. GEORGE LEMIEUX that thousands of Federal employees RUSS FEINGOLD Senator GEORGE LEMIEUX and his go to work every day with the sole mis- Senator RUSS FEINGOLD—and this is wife Meike. Again, they served here for sion of making this country a safer said often, but it applies so accu- a short period of time but with such place to live. Ms. Deborah Autor is one rately—is a conscience of this body. He distinction, such character, and such of those employees. is someone who came here to fight for concern. I want to salute him. He and As we enter into the cold and flu sea- the principles in which he deeply be- I worked together on the Teacher and son, there is great concern about harm- lieves and would not deviate from that Principal Improvement Act. He is a ful medications that may fall into the very serious challenge. He did it with brilliant and a decent civil servant. I hands of our children or other loved skill, thoughtfulness, and gentility. I thank him. ones. As Director of the Food and Drug Administration’s Drug Compliance Of- appreciate that very much. He was a BLANCHE LINCOLN fice, Ms. Autor works to protect public champion for so many things—Pell BLANCHE LINCOLN. BLANCHE and I grants, making sure the opportunity served in the House together. She de- health by minimizing Americans’ expo- was still a watchword of this country. cided to raise her family and then came sure to unsafe, ineffective, and poor- What he was most famous for was his back to the Senate. I can say without quality drugs that enter the market- efforts in campaign finance reform. any hesitation that without her very place. Ms. Autor is particularly focused on Frankly, we will miss him dearly be- courageous stand with respect to some removing potentially dangerous pre- cause of that. of the aspects of the Dodd-Frank finan- scription medicines, including cough There is a growing concern in this cial legislation, it would not be as com- medicines, anti-inflammatory drugs, country that elections have become prehensive, as effective as it is today. antihistamines, and migraine medica- auctions, not about the quality of the She stood up and essentially demanded tions, just to name a few. Under her candidates and their positions, but that we create a structure where you leadership, the FDA has taken enforce- simply how much money can be funded could trade derivatives rather than ment action to remove more than 500 and by how many different sources. So simply clear them. That is a remark- unapproved prescription drugs from the at a time when we have to confront able achievement, and it is her market. She is also credited with de- again an even more serious challenge achievement. signing a program used to identify un- of campaign finance reform, we are los- ARLEN SPECTER approved drugs, evaluate the public ing one of the great voices and great Finally—and I beg the indulgence of health consequences, and explore any minds in that effort. I know he will be my colleague from Vermont, who I potential legal challenges. helping us in this effort going forward, know is scheduled to speak—let me say Many believe Ms. Autor is the brains and I thank him for that. to ARLEN SPECTER and Joan Specter, behind the FDA’s aggressive enforce- CARTE GOODWIN thank you for such service. Senator ment efforts. In conducting the re- Carte Goodwin served with us for a SPECTER is the champion of NIH. It is search for these remarks, we found a very brief period of time, but in that an incredible achievement, what he has quote from Mr. Steven Galson, a time, we saw the incredible talent of done to fund that over the years. former Acting U.S. Surgeon General, this young Senator—his skill, his judg- GEORGE VOINOVICH and this is what he had to say about ment, his ability to communicate with And also to Senator GEORGE Ms. Autor: everyone in this Senate. He has been VOINOVICH and Janet Voinovich, thank She developed the program under budget succeeded by another remarkable gen- you so much for what you have done. constraints, withstood scrutiny and criti- tleman, Senator MANCHIN, who is cer- GEORGE VOINOVICH has been someone cism from some in the drug industry and

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8735 Congress, successfully navigated the internal I am here today to take a strong breaks to the richest people in this FDA process and took aggressive action to stand against this bill, and I intend to country. We have been told not to clamp down on illegal drug marketers. tell my colleagues and the Nation ex- worry too much because the extension There are many others who have actly why I am in opposition to this of these tax breaks for the wealthy will sung her praises and highlighted her bill. You can call what I am doing only last 2 years—not to worry. Maybe commitment to public service. today whatever you want. You can call that is the case. But given the political Prior to work at the FDA, Ms. Autor it a filibuster. You can call it a very reality I have seen in Washington, my was a trial attorney for the Office of long speech. I am not here to set any guess is that 2 years from now these Consumer Litigation at the Depart- great records or to make a spectacle; I tax breaks for the wealthiest people in ment of Justice, where she served for 7 am simply here today to take as long this country will be extended again. years. In this role, she litigated civil as I can to explain to the American What happens around here is that the and criminal cases on behalf of the people the fact that we have to do a lot argument will be made that if you end FDA. better than this agreement provides. these tax breaks you are raising taxes. I hope my colleagues will join me in Let me enumerate some of the rea- That is what we are hearing right now. honoring Ms. Autor for her dedicated sons I am opposed to this agreement. I see no reason why, in the middle of a public service and important contribu- First, as everybody knows, this Na- Presidential election, those arguments tions to our Nation’s health and safety. tion has a recordbreaking $13.8 trillion I would also add that in these chal- will not be made again and I see no rea- national debt at the same time as the lenging fiscal times, as we approach son not to believe that those tax middle class is collapsing and poverty and go through the holiday season, I breaks will be extended again. is increasing. And I think it is impor- hope we all recognize the enormous (The ACTING PRESIDENT pro tem- tant to say a word—because I am not contribution all of our Federal employ- pore assumed the chair.) necessarily sure a lot of Americans Mr. SANDERS. Clearly, we have a ees make. The Presiding Officer many know this—about how we got to where number of Republicans who want to times reminds all of us of the enormous we are today in terms of the national make that extension permanent. role our men and women in the armed debt. Whether it will ever be made perma- services play, and our thoughts and I know there are some people who nent I don’t know. But the point is, prayers are with all of them. But I think this all began the day President when you hear folks say it is only a 2- think it is also important to recognize Obama took office. Well, that is not these great Federal employees such as year extension, I suggest you take that quite the case. When President Clinton Ms. Autor and literally the countless with a grain of salt. left office, this country was running, in Let me say, if in fact we do what the others who oftentimes—and sometimes fact, a very significant surplus, and the Republicans have wanted to do right at the disdain of folks in elective of- projections were that we were going to now as we enter this debate—they fice—are the folks who provide enor- wanted a 10-year extension—that would mous public service to all Americans. continue to run a surplus. During the 8 add $700 billion to our national debt. I So I hope we keep them in our years of President Bush’s administra- have four kids and I have six grand- thoughts as well during this holiday tion, for a number of reasons—the pri- season. mary reasons being the war in Iraq, the children. None of them has a whole lot Before I conclude my remarks, I also war in Afghanistan, huge tax breaks of money. I think it is grossly unfair to wish to thank my friend, the Senator for the wealthiest people in this coun- ask my kids and grandchildren and the from Vermont, who is a passionate ad- try, a Medicare Part D prescription children all over this country to be vocate for trying to end the growing drug program, the Wall Street bailout, paying higher taxes in order to provide income inequality in this country. I among other things, all of which were tax breaks for billionaires because we know he is going to be making some not paid for—we saw an almost dou- have driven up the national debt. That impassioned comments, and I appre- bling of the national debt. Since Presi- is plain wrong. I think the vast major- ciate his giving me a couple of mo- dent Obama has been in office, we have ity of the American people, whether ments to recognize this Federal em- passed a stimulus package which has they are progressives like myself or ployee, and I look forward to hearing also added to the deficit and national whether they are conservatives, per- his comments. debt. ceive that concept of giving tax breaks With that, Mr. President, I yield the But here we are today with a $13.8 to billionaires when we have such a floor. trillion national debt, a $1.4 trillion high national debt makes no sense at The PRESIDING OFFICER. The Sen- deficit, and almost all Americans are all. ator from Vermont. in agreement that this is a very serious Furthermore, it is important to point f issue. So the first point I would make out that extending income tax breaks is that it seems to me to be uncon- to the top 2 percent is not the only un- THE ECONOMY scionable—unconscionable—for my fair tax proposal in this agreement. Mr. SANDERS. Mr. President, let me conservative friends and for everybody This agreement between the President begin by thanking my friend from Vir- else in this country to be driving up and the Republican leadership also ginia for doing what is very important. this already too high national debt by calls for a continuation of the Bush era I think the essence of what he is saying giving tax breaks to millionaires and 15-percent tax rate on capital gains and is that today there are millions of Fed- billionaires who don’t need it, and in a dividends, meaning that those people eral employees, people in the Armed number of cases they don’t even want who make their living off their invest- Forces, who are doing the very best it. ments will continue to pay a substan- they can. In many instances, they are Here is one of the interesting ironies. tially lower tax rate than firemen, doing a great job to protect our coun- There are lists of many very wealthy teachers, nurses, carpenters, and vir- try, to keep it safe. And very often, to people who have come forward and tually all the other working people of be honest with you, these folks get said: Sure, I want a tax break. Every- this country. I do not think that is dumped on. So it is important that body wants a tax break. But you know fair. That is wrong. If this agreement people such as Senator WARNER come what, there are other priorities in this were to be passed, we would be con- here and point out individuals who are country, and I don’t need it. Two of the tinuing that unfair arrangement. doing a great job, people of whom we wealthiest people in the world—and On top of all that, this agreement in- are very proud. So I thank Senator these are billionaires—Bill Gates of cludes a horrendous proposal regarding WARNER for that. Microsoft and Warren Buffett of Berk- the estate tax. That is a Teddy Roo- Mr. President, as I think everyone shire, say: It is absurd. We don’t need a sevelt initiative. Teddy Roosevelt was knows, President Obama and the Re- tax break. talking about this in the early years of publican leadership have reached an All over the country, you hear a lot the 20th century. It was enacted in 1916 agreement on a very significant tax of folks who have a lot of money say- and it was enacted for a couple of rea- bill. In my view, the agreement they ing: Don’t drive up the deficit and force sons. Teddy Roosevelt and the people reached is a bad deal for the American our kids to pay higher taxes to pay off of that era thought it was wrong that people. I think we can do better. the national debt in order to give tax a handful of people could have a huge

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8736 CONGRESSIONAL RECORD — SENATE December 10, 2010 concentration of wealth and then give the attention it deserves—this agree- Even though Social Security contrib- that wealth, transmit that wealth to ment contains a payroll tax holiday uted nothing to the current economic their children. He did not think that which would cut $120 billion from So- crisis, it has been bartered in a deal was right. cial Security payroll taxes for workers. that provides deficit-busting tax cuts Furthermore, it was a source, a pro- There are a lot of folks out there who for the wealthy. Diverting $120 billion gressive and fair source, of revenue. say: This is pretty good. I am a worker, in Social Security contributions for a Under the agreement struck between my contribution will go from 6.2 per- so-called ‘‘tax holiday’’ may sound like the Republican leadership and the cent today down to 4.2 percent. I will a good deal for workers now, but it’s President, the estate tax rate, which have more money in my paycheck. It is bad business for the program that a was 55 percent under President Clin- a good idea. majority of middle-class seniors will ton—and let’s all remember, we had Let’s take a deep breath and let’s rely upon in the future. problems with the economy under think about it for a second and under- That is what the National Committee President Clinton but very few will stand what this whole thing is about. to Preserve Social Security and Medi- deny that during those years we were This payroll tax holiday concept, as I care says about that agreement and I creating a heck of a lot more jobs than understand it, originally started with agree with them. For all of us who un- we did under President Bush. That is conservative Republicans. I know the derstand that Social Security is life the fact—over 20 million jobs under Vice President recently made the point and death for tens of millions of Ameri- President Clinton. We lost 600,000 pri- this was originally a Republican idea. cans today and will be vitally impor- vate sector jobs under President Bush. Why did the Republicans come up with tant for working people as they reach During the Clinton era, the tax rate on this idea? These are exactly the same retirement age, it is important that we the estate tax was 55 percent. What people who do not believe in Social Se- understand that Social Security has this arrangement would do is lower curity. These are the same people who done a great job. A few minutes ago the that tax rate to 35 percent, with an ex- either want to make significant cuts in Presiding Officer was on the floor talk- emption on the first $5 million of an in- Social Security or else they want to ing about the strong work that our dividual’s estate and $10 million for privatize Social Security entirely. Here Federal employees do, and he is abso- is the point: They understand that if couples. lutely right. Sometimes we also take we divert funding that is supposed to Here is the important point I think for granted that Social Security has go into the Social Security trust fund, many people do not know. I have to been an enormous success. It has done which is what this payroll tax holiday confess my Republican friends and exactly what those people who created does, this is money that goes into the their pollsters and their language peo- it have wanted it to do—nothing more, Social Security trust fund that is now ple have done a very good job. This is nothing less. It has succeeded. It has being diverted, cut back, in order to the so-called death tax. I think all over taken millions of seniors out of pov- provide financial support for workers— America people say this is terrible. I erty and given them an element of se- but that is a lot of money not going have $50,000 in the bank and I want to curity. It has also helped people with leave that to my kids and the Govern- into the trust fund. What the President and others are disabilities maintain their dignity. ment is going to take 55 percent of Widows and orphans are also getting that, 35 percent of that. What an out- saying is not to worry because that money will be covered by the general help. rage. For 75 years it has worked well. It Let us be very clear: This tax applies fund. That is a very bad and dangerous precedent. Up until now, what Social has a $2.6 trillion surplus today and it only—only—to the top three-tenths of can pay out benefits for the next 29 1 percent of American families; 99.7 Security has been about is 100 percent years. It is strong. We want to make it percent of American families will not funding from payroll contributions, not stronger. This payroll tax holiday I am pay one nickel in an estate tax. This is from the general tax base. Once again, afraid is a step very much in the wrong not a tax on the rich, this is a tax on this is a 1-year program. The loss of direction and that is one of the impor- the very, very, very rich. revenue going into Social Security can If my Republican friends had been be covered by the general fund. But we tant reasons why this agreement be- successful in doing what they want to have a $13 trillion national debt. How tween the President and the Repub- do, which is eliminate this estate tax much longer will the general fund put licans should be defeated. Included in the agreement are a num- completely, it would have cost our money into Social Security? Is it a ber of business tax cuts. I am not going Treasury—raised the national debt by good idea for the general fund to be to be here to say that some of them $1 trillion over a 10-year period. Fami- doing that? lies such as the Walton family, of Wal- I would argue this is not a good idea. may not work. Some of them may Mart fame, would have received, just This is a very dangerous step forward work. Some will work better than oth- this one family, about a $30 billion tax for those of us who believe in Social ers. There is a whole list of them. But break. Security. But this is not just BERNIE this is what I will say. Economists on I find it hard to believe when we are SANDERS saying this. One of the more both ends of the political spectrum be- talking about massive cuts in pro- effective and I think important senior lieve that if we are serious about ad- grams for working families, when we groups in America is called the Na- dressing the horrendous economic cri- have this huge national debt, that any- tional Committee to Preserve Social sis we are in now, 9.8 percent unem- body would be agreeing to lowering the Security and Medicare. I don’t know ployment, there are far more effective estate tax rate to 35 percent. That is exactly how many but they have many ways of creating the jobs we have to what this agreement does and I think members all over this country. I know create than those tax proposals. With that is a very bad idea. they are active in the State of corporate America already sitting on Once again, while the agreement on Vermont. I want to read to you from a close to $2 trillion cash on hand, it is the estate tax is for 2 years—once press release they sent out the other not that our friends in corporate Amer- again, there is very little doubt in my day. This is the headline on it, from ica don’t have any money, we have to mind that the Republicans will con- the National Committee to Preserve help them. They have $2 trillion cash tinue to push for lower and lower es- Social Security and Medicare: ‘‘Cut- on hand. The problem is not in my view tate tax rates because that is what ting Contributions to Social Security that corporate taxes are too high; it is they want. I think Senator KYL has Signals the Beginning of the End. Pay- that the middle class simply doesn’t been pretty clear about this. They roll Tax Holiday Is Anything But.’’ have the money to purchase the goods want to permanently repeal that tax. This is what they say. This comes and products that make our economy That is $1 trillion in tax breaks to the from Barbara Kennelly. Barbara came go and create jobs. top three-tenths of 1 percent. I think from the House of Representatives. I I think if our goal is to create the we are down a bad path there and that have known her for years. She is now millions and millions of jobs we need, is another reason why this agreement the president and CEO of the National and if our goal is to make our country does not make a whole lot of sense. Committee to Preserve Social Security stronger internationally in a very Third—and this is a very important and Medicare, one of the strong senior tough global economy, I would much point that I think has not yet gotten groups in the country. prefer, and I think most economists

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8737 would agree with me that a better way try. You are making us more produc- there are positive and good agreements to do that, to create the millions of tive. It is not just creating jobs, it is in this. And what are they? What are jobs we have to create, is to invest creating jobs for very specific purposes, some of the positive aspects of this heavily in our infrastructure. which makes our Nation more produc- agreement? Let me just tick them off. The truth is—and I don’t think any- tive and efficient. No. 1, I believe very strongly, and I one disputes this, the infrastructure in Thirdly, let me tell you something. know the President does, it is abso- the United States is crumbling, and I As a former mayor, infrastructure does lutely imperative that we extend mid- will go into more detail about that not get better if you ignore it. You can dle-class tax cuts for 98 percent of the later. turn your back, if you are a mayor or American people. I do not think there I have some very good information Governor, on the roads and the high- has been any debate about that. on it. But you do not have to be a civil ways because you do not have the When median family income has gone engineer to know that. All you have to money to fix them today, but they are down by over $2,000 during the Bush do is get in your car today and drive not going to get better next year. At years, when millions of our people someplace in my State and all over some point, they are going to have to today are working longer hours for low this country. What you are going to see be repaired and fixed. We may as well wages, when people cannot afford to are roads that are in disrepair. You are do that right now. send their kids to college or to take going to see bridges that, in some So I believe the money, the very sub- care of childcare, I think it makes ab- cases, have actually been shut down. stantial sums of money in this agree- solute sense. I do not think anyone will You are going to see water systems—I ment between the President and the argue it is absolutely imperative that remember I was in Rutland, VT, the Republicans, which goes into tax we extend middle-class tax cuts. That second or third largest city in the breaks for corporate America, could be is what this provision does. That is the State of Vermont, and the mayor effectively spent on infrastructure. right thing. showed me a piece of pipe, an old piece The fifth point I want to make in op- Furthermore, in this agreement we of pipe. position to this agreement and what we have an extension of the earned-income He said: You know, the engineer who have heard from the President and oth- tax credit for working Americans, and helped develop this water system and ers is that this is a compromise. You the child and college tax credit are also lay this pipe, after he did this work for cannot get everything you want. Well, in there. Every one of these agree- Rutland, he went off to fight in the you cannot get everything you want ments is very important. These pro- war. around here is true, but one of the ex- grams will keep millions of Americans I knew there was a catch line com- amples of compromise is an extension from slipping out of the middle class ing. I said: What war was it? of unemployment benefits for 13 and into poverty. They will allow mil- He said: It was the Civil War. months. lions of Americans to send their kids to So you are talking about water pipe Well, let me be very clear. In the college. being in Rutland, VT—and this is true midst of a serious and major recession, So I am not here to say there is not all over the United States—laid in the at a time when millions of our fellow anything of value in this agreement be- Civil War. The result is, we lose an Americans are not only out of work tween the President and the Repub- enormous amount of clean water every through no fault of their own, but they licans. There are, and we have to fight day through leaks and water pipes have been out of work for a very long to make sure all of those programs re- bursting all over the United States of time, it would be, in my view, immoral main in the final package when it is America. and wrong to turn our backs on those passed—when the final package is Well, we can put people to work im- workers. Their unemployment benefits passed. But when we look at the over- proving our water systems, our waste- are going to be running out soon. It is all agreement, we must put it in a water plants. It is a very expensive absolutely imperative that we extend broader context; that is, what will the proposition to develop a good waste- those unemployment benefits for the 2 passage of this legislation mean for the water plant. I was a mayor, you were a million workers who would lose them. future of our country? Governor, Mr. President. It is an ex- But here is the point I want to make. In that area, if you look at it in that pensive proposition for roads, bridges. Some people say this is a compromise. context, I think the evidence is pretty Furthermore, I do not have to tell any- Well, the Republicans gave on unem- strong it is not just a good agreement body here, our rail system, which used ployment; the President gave on ex- and not something that should be to be the greatest rail system in the tending tax breaks for the rich, et passed. The passage of this agreement world, is now falling way behind every cetera. But here is the point. I do not would mean we would continue the other major country on Earth. believe, honestly, that the Republican Bush policy of trickle-down economics As a result of the stimulus package, support now for extending unemploy- for at least 2 more years. That is not a we did a whole lot of very good things ment benefits constitutes much of a good thing to do because, I think, as in the State of Vermont. One of the compromise because the truth is, for most Americans know, that philos- things we were able to do was use $50 the past 40 years, under both Demo- ophy, that economic approach, simply million of Federal funds and private cratic and Republican administrations, did not work. The evidence is quite money to make major repair on one of under the leadership in the Senate and overwhelming. I do not think there is our important railways in the State. the House of Democrats or Repub- much debate, when median family in- But we remain far behind most other licans, it has been bipartisan policy come during Bush’s 8 years goes down countries around the industrialized that whenever the unemployment rate by $2,200, when we end up losing over world. China is exploding in terms of has been above 7.2 percent, unemploy- 600,000 private sector jobs, and all of the number of high-speed rail lines ment insurance has always been ex- the job growth was in the Federal they have. We have to do better. Our tended. So what we have had is long- level, I do not see how anybody would airports need work. Our air controllers standing, bipartisan policy. That is want to continue that philosophy. But need to be updated in terms of the what we have always done. That is that, in essence, is what will happen if technology they have and use to make what we should be doing in the future. this agreement is passed. our flights safe. I do not regard Republicans now sup- Now, I want to make another point The point is, what most economists porting what their party has always about what happens if—if, and I will do would tell you is when you invest in in- supported, extending unemployment my best to prevent this from hap- frastructure, you get a bigger bang for benefits when unemployment becomes pening—but what would happen if this the buck. You create more jobs for very high—I do not see that as a com- agreement would pass? Does anybody your investment than, in most in- promise. I see that as what has been seriously believe our Republican col- stances, giving a variety of tax breaks going on in this country and in the leagues would then say: OK, well, we to the corporate world. Senate for four decades. have an extension of tax breaks for the Second of all, and not unimportantly, I have talked about the negative as- very richest people. We have lowered when you invest in infrastructure, you pects of this proposal. But I am going the tax rate on the estate tax. Those are improving the future of this coun- to be the first to admit that, of course, are good victories for millionaires and

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8738 CONGRESSIONAL RECORD — SENATE December 10, 2010 billionaires. We are going to go home families who have their kids in income of any major country on Earth. now. We are not going to continue the childcare. Cut. Cut. Cut. The top 1 percent earns 23 percent of fight. That is insanity. I am being honest all income in America, more than the I do not think so. We are already about it. So I would suggest their argu- bottom 50 percent. They don’t need hearing sounds about where our Repub- ment is that we have a high deficit and more tax breaks to be paid for by our lican friends want to go. The President a high national debt; that if we pass kids and grandchildren. put together what I thought was a very this agreement and the national debt The vast majority of people are be- poor deficit reduction commission. I goes higher, it only gives them more hind us on this issue, but they have to thought the folks on it were not reflec- impetus to go forward to cut programs make their voices heard to their Sen- tive of the American people. I thought that benefit working families and the ators, to their Congressmen. When there was very much a big business, middle class. they do, I believe we can come forward corporate partiality there. Let me also say there is no doubt in with an agreement which protects the The initiatives that came out of that my mind what many—not all but middle-class and working families and commission—which, fortunately, did many—of my Republican colleagues is not a boondoggle for the wealthiest not get the 14 votes they needed—sug- want to do; that is, they want to move people. gest to me that those of us who are this country back into the 1920s when It is important to put the agreement concerned about protecting the needs essentially we had an economic and po- the President struck with Republicans of the middle class and working fami- litical system which was controlled by in a broader context. We can’t just lies are going to have to push back big money interests; where working look at the agreement unto itself. We pretty hard for what is coming down people and the middle class had no pro- have to look at it within the context of what is going on in the country today, the pike. grams to sustain them when things got both economically and politically. I I think what we will be seeing is—if bad, when they got old, and when they think I speak for millions of Ameri- this proposal negotiated between the got sick; when labor unions were very cans. There is a war going on in this President and the Republicans is hard to come by because of antiworker country. I am not referring to the war passed, what you will be seeing within legislation. That is what they want. in Iraq or the war in Afghanistan. I am a few months are folks coming on the They do not believe in things like the talking about a war being waged by floor of the Senate, and this is what Environmental Protection Agency. some of the wealthiest and most power- they will say: You know what. The def- They do not believe in things like So- ful people against working families, icit is high. The national debt is too cial Security, Medicare, Medicaid, Fed- against the disappearing and shrinking high. And, yes—oh, yes—we drove the eral aid to education. That is the fight middle class of our country. The bil- national debt up by giving tax breaks we will be waging. lionaires of America are on the to millionaires. That is the way it I think to surrender on this issue is warpath. They want more and more goes. But we are going to have to deal to simply say we are going to be wag- and more. That has everything to do with our national debt. ing fight after fight, starting within a with this agreement reached between The Republicans will tell you: Oh, we couple of months. Republicans and the President. have a great plan to deal with it. We President Obama has said he fought In 2007, the top 1 percent of all in- are giving tax breaks to millionaires. as hard as he could against the Repub- come earners made 23.5 percent of all But now what we are going to have to lican tax breaks for the wealthy and income. Let me repeat that: The top 1 do is start making deep cuts in Social for an extension in unemployment. percent earned over 23 percent of all in- Security, and that deficit reduction Well, maybe. But the reality is that come; that is, more than the bottom 50 commission started paving the way for fight cannot simply be waged inside percent. One percent here; fifty percent that, very substantial cuts in Social the Beltway. Our job is to appeal to the here. But for the very wealthy, that is Security. vast majority of the American people apparently not enough. The percentage Maybe we will have to raise the re- to stand up and to say: Wait a minute. of income going to the top 1 percent tirement age in Social Security to 69 or I do not want to see our national debt nearly tripled since the 1970s. All over 70. Maybe we will have to make cuts in explode. I do not want to see my kids this country people are angry, frus- Medicare. Maybe we will have to make and grandchildren paying higher taxes trated. It is true in Vermont. I am sure cuts in Medicaid. I think we are begin- in order to give tax breaks to million- it is true in Virginia. It is true all over ning to see, in the State of Arizona aires and billionaires. America. But one of the reasons people now, what goes on when you make deep The vast majority of the American are angry and frustrated is they are cuts in Medicaid. people do not support that agreement working incredibly hard. In Vermont, I In Arizona right now there are people in terms of giving tax breaks to the can tell my colleagues, there are peo- who are in line who need transplants, very rich. Our job is to rally those peo- ple who don’t work one job, two jobs; who will die if they do not get trans- ple. I would like very much to see the there are people working three jobs and plants, as a result of legislation they American people saying to our Repub- four jobs, trying to cobble together an passed there. They are saying to peo- lican colleagues and some Democratic income in order to support their fami- ple, young people: Sorry, we cannot af- colleagues: Excuse me. Don’t force my lies. I suspect that goes on all across ford to give you a transplant, and you kids to have a lower standard of living the country. While people are working are going to have to die. in order to give tax breaks to the rich- harder and harder, in many cases their Well, is that what we are looking for- est people. income is going down. The fact is, 80 ward to saying all over America? I cer- What the President and all of us percent of all new income earned from tainly will do everything I can to pre- should be doing is going out and saying 1980 to 2005 has gone to the top 1 per- vent that. to those people: Call the Members of cent. Let me repeat that because that We are certainly going to see a tax the Senate, call the Members of the is an important fact. It explains why on environmental protection, on edu- House and say: Excuse me. How about the American people are feeling as cation. Some of us believe if this coun- representing the middle class and angry as they are. They are working try is going to prosper and succeed in working families, for a change, rather hard, but they are not going anyplace. the global economy, we have to have than the wealthiest people. That is In some cases, in many cases, their the best educational system in the what democracy is about. standard of living is actually going world from childcare through college. This fight is not going to be won in- down. Eighty percent of all income in Right now, it is extremely difficult side the beltway in a Senate debate. It recent years has gone to the top 1 per- for middle-class families to send their is going to be won when the American cent. The richer people become much kids to college. Does anyone have any people stand and say: Wait a second. richer, the middle class shrinks. Mil- doubt whatsoever that our Republican We cannot continue to give tax breaks lions of Americans fall out of the mid- friends are not going to come back here to people who are doing phenomenally dle class and into poverty. and say: Oh, we cannot afford to raise well right now. We cannot give tax That is not apparently enough for Pell Grants as we have in recent years. breaks to the rich when we already our friends at the top who have a reli- We cannot afford to support working have the most unequal distribution of gious ferocity in terms of greed. They

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Are American work- not quite sure how much they need. right of free speech and the right with- ers going to be able to compete against When will it stop? out disclosure—all of this is through desperate people who make 23 cents an Today, in terms of wealth as opposed the Citizens United Supreme Court de- hour? to income, the top 1 percent now owns cision—to put as much money as they So my view—and I think it reflects more wealth than the bottom 90 per- want into campaigns all over the coun- the views of the American people—is cent. When we went to school, we used try. In this last campaign, that is what that of course we want to see the peo- to read in the textbooks about Latin we saw: Billionaires, in secret, pouring ple of Bangladesh and the people of America, and they used to refer to money into campaigns all over the China do well. But they do not have to some of the countries there as ‘‘banana country. Does that sound like democ- do well at the expense of the American republics,’’ countries in which a hand- racy to anybody in America; that we middle class. We do not have to engage ful of families controlled the economic have a handful of billionaires probably in a race to the bottom. Our goal is to and political life of the nation. I don’t dividing up the country? I will put this bring them up, not us down. But one of wish to upset the American people, but amount in Virginia, California, wher- the results of our disastrous trade poli- we are not all that far away from that ever. cies is that in many instances wages in reality today. The top 1 percent has That is what they were able to do. the United States have gone down. seen a tripling of the percentage of in- The rich get richer, and they don’t sit I believe in the coming months you come they earn. Since the 1970s, the on this money. What they then do is are going to see an intensification of top 1 percent owning 23 percent of all use it to elect people who support them efforts to expand unfettered free trade. income, more than the bottom 50 per- and to unelect people who oppose their I think that will be a continuation of a cent. The top 1 percent now owns more agenda and they use their political disastrous policy for American work- wealth than the bottom 90 percent. power to get legislation passed which ers. That is not the foundation of a demo- makes the wealthy even wealthier. Let me personalize this a little bit. cratic society. That is the foundation One of the manifestations of that is, This gentleman, shown in this picture I for an oligarchic society. The rich get in fact, the agreement reached between have in the Chamber—I have no per- richer. The middle class shrinks. Pov- the President and the Republican lead- sonal animus toward him at all; I think erty increases. Apparently, God is not ership. The wealthy contribute huge I met him once in a large room. His good enough yet for some of the richest sums of money into campaigns. The name is James Dimon. He is the CEO of people. wealthy have all kinds of lobbyists JPMorgan Chase. Over the past 5 years, I say ‘‘some of the richest’’ because around here through corporate Amer- Mr. Dimon, who is the CEO of there are a lot of folks with a lot of ica. What they are going to get out of JPMorgan Chase, received $89 million money who do love this country, they this agreement are huge tax breaks in total compensation—a bank that we are not into greed, but there are some that benefit themselves. That is not now know received hundreds of billions who are. More, more more, that is what what we should be supporting. in low-interest loans and other finan- they need. We should understand this agreement cial assistance from the Federal Re- For example—this galls me and galls is just the beginning of an assault on serve and the Treasury Department. many of the people in this country— legislation and programs that have So Mr. Dimon received $89 million in the horrendous recession we are in benefited the American people for 70 or total compensation. His bank was right now, where millions and millions 80 years. Mark my words, there will be bailed out big time by the taxpayers. of people have lost their jobs, their sav- an intensive effort to privatize Social But under the legislation the President ings, their homes, this recession was Security and Medicare and Medicaid. negotiated with the Republicans, Mr. caused by the greed and recklessness Furthermore, it is part of the Repub- Dimon—I use him just as one example and illegal behavior on Wall Street. lican agenda. They want to expand— for thousands; nothing personal to Mr. These guys, through their greed, cre- and it is not only Republicans here, Dimon—will receive $1.1 million in tax ated the most severe economic reces- some Democrats as well—our disas- breaks. So $1.1 million in tax breaks sion since the Great Depression. The trous trade policies so large companies for a major CEO on Wall Street, who American people bailed them out. Now, can continue their efforts to outsource over the last 5 years received $89 mil- 2 years after the bailout, they are giv- American jobs to China and other low- lion in total compensation. ing themselves more compensation wage countries. Any objective analysis Meanwhile—just to contrast what is than they ever have. They are saying of our trade policies has shown it has going on here—2 days ago, I brought to the American people: Sorry we been a grotesque failure for ordinary before the Senate legislation which caused this recession because of our Americans. It is hard to calculate ex- would provide a $250 one-time check to greed. Sorry you are unemployed. actly, but I think it is fair to say we over 50 million seniors and disabled Sorry you lost your house. But that is have lost millions of decent-paying veterans, who for the last 2 years have not all that important. What is impor- jobs. During the Bush years alone, not received a COLA on their Social tant is that I, on Wall Street, continue some 48,000 factories shut down. We Security. Many of those seniors and to get millions of dollars in compensa- went from 19 million manufacturing disabled vets are trying to get by on tion and in bonuses, that I have big jobs to 12 million manufacturing jobs. $14,000, $15,000, $18,000 a year. The total parties. How can I get by on one house? Historically, in this country, manufac- package for that bill was approxi- I need 5 houses, 10 houses. I need three turing jobs were the backbone of the mately $14 billion that would go out to jet planes to take me all over the working class. That is how people made over 50 million seniors and disabled world. Sorry. We have the money. We it into the middle class. That is how vets. We won that vote on the floor of have the power. We have the lobbyists they had decent health care benefits the Senate 53 to 45. But just because here on Wall Street. Tough luck. That and pensions. Every day we are seeing you get 53 votes in the Senate does not is the world, get used to it. those jobs disappear because corporate mean you win. Because the Repub- The rich get richer. The middle class America would prefer to do business in licans filibustered, I needed 60 votes. I shrinks. Not enough, not enough. The China or other low-wage countries. could not get 60 votes. I could not get very rich seem to want more and more I returned from a trip to Vietnam one Republican vote to provide a $250 and more, and they are prepared to dis- last year, a beautiful country. People check to a disabled veteran trying to mantle the existing political and social there work for 25, 30 cents an hour. get by on $15,000 or $16,000 a year. order in order to get it. So we have the Sometimes when you go to a store, you But Mr. Dimon, who made $89 million economics and distribution of income may see a shirt made in Bangladesh. in the last 5 years, will get a $1 million and wealth as one thing, but then we That shirt, in all likelihood, is made by tax deduction if this agreement is must discuss politics. a young girl who came in from the passed. Now, that may make sense to

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In 2006, he re- asked the Fed Chairman, Mr. nancial institution, whose recklessness ceived a $40 million bonus, which at the Bernanke, to tell the American people and greed caused this great recession, time was the largest bonus ever given the names of the financial institutions no problem. You are going to receive a to a Wall Street executive. that received this unprecedented back- substantial amount of help from the Two years after receiving this bonus, door bailout from the Fed, how much taxpayers of this country. If you are a Morgan Stanley received some $2 tril- they received, and the exact terms of major American corporation, such as lion in low-interest loans and billions this assistance. I will never forget that. General Electric or McDonald’s or Cat- from the Treasury Department. Instead I asked Mr. Bernanke for that informa- erpillar or Harley-Davidson or Verizon, of losing his job, under this agreement, tion. He said: Senator, no, not going to no problem. You are going to receive a Mr. Mack will be receiving an esti- give it to you, not going to make it major handout from the U.S. Govern- mated $926,000 tax break next year. public. ment. Congratulations, Mr. Mack. You are Well, on that day, I introduced legis- But if you are a small business in doing fine. We could not get $250 for a lation to make that information pub- Vermont or California or Virginia, disabled vet. lic, working with a number of Members well, guess what, you are on your own Over the past 5 years, Ken Lewis, the of the House and the Senate. Some because right now we know one of the former CEO of Bank of America, re- strange bedfellows—conservatives and real impediments to the kind of job ceived over $165 million in total com- progressives—came together on this creation we need in this country is pensation. In 2008, Bank of America re- issue. We managed to get in the Wall that small businesses are not getting ceived hundreds of billions in taxpayer- Street reform bill a disclosure provi- the loans they need. backed loans from the Fed and a $45 sion, and on December 1—last week— Furthermore, what we now know is billion bailout from the Treasury De- that information was made public. Let the extent of the bailout for the large partment. me talk a little bit about what was in financial corporations. Goldman Sachs What will Mr. Lewis receive if the that information made public by the received nearly $600 billion. Morgan agreement negotiated between the Fed. Stanley received nearly $2 trillion. President and the Republicans goes After years of stonewalling, the Citigroup received $1.8 trillion. Bear forth? He will get a $713,000 tax cut. American people have learned the in- Stearns received nearly $1 trillion. And And on and on it goes. I did not mean credible, jaw-dropping details of the Merrill Lynch received some $1.5 tril- to specifically pick on these guys. Fed’s multimillion-dollar bailout of lion in short-term loans from the Fed. Some of the wealthiest people in the Wall Street and corporate America— But I think what is most surprising country will be receiving a million-dol- not just Wall Street. It is one of the for the American people is not just the lar-plus tax break. So we as a nation things we learned. As a result of this bailout of Wall Street and the financial have to decide whether that makes a disclosure, in my view—we are going to institutions, and the bailout of large lot of sense. I think it does not. get into what was in what we learned— American corporations such as General Let me mention that a couple weeks Congress has to take a very extensive Electric, but I think the American peo- ago the Fed, the Federal Reserve, pub- look at all aspects of how the Federal ple would find it very strange that at a lished on their Web site some 21,000 Reserve functions and how we can time when the American automobile transactions that took place during the make our financial institutions more sector was on the verge of collapse— Wall Street meltdown period. That dis- responsive to the needs of ordinary and goodness only knows how many closure was made possible as part of a Americans and small businesses. thousands and thousands of jobs we provision that I put into the financial What have we learned from the dis- have lost in automobile manufacturing reform bill because I thought it was closure of December 1? This is based on in this country—the Federal Reserve important the American people, for the an examination of over 21,000 separate was also bailing out Toyota and first time, lift the veil of secrecy at the Federal Reserve transactions. More Mitsubishi, two Japanese carmakers, Fed and get a sense of the kind of work, more research needs to be done. by purchasing nearly $5 billion worth money that was lent out by the Fed But this is what we have learned so far. of their commercial paper from Novem- and who received that money. As it turns out, while small business ber 5, 2008, through January 30, 2009. What is very interesting is that the owners in the State of Vermont and While virtually no American-made cars American people and the media have throughout this country were being or products of any kind are bought in focused on the $700 billion Wall Street turned down for loans, not only did Japan, I think the American people bailout now known as TARP. I happen large financial institutions—and I am would be shocked to learn that the Fed to have voted against that agreement, talking about every major financial in- extended over $380 billion to the Cen- but, in fairness, that agreement was stitution—receive substantial help tral Bank of Japan to bail out banks in pretty transparent. The Treasury De- from the Fed, but also some of the that country. partment put up on their Web site all largest corporations in this country— Furthermore, I think the American of those banks and financial institu- not financial institutions—also re- people are interested to know that the tions that received the money. If you ceived help in terms of very low inter- Fed bailed out the Korea Development want to know where the money went, est loans. Bank, the wholly owned, state-owned it is right up there on the Treasury De- So you have every major financial in- Bank of South Korea, by purchasing partment’s Web site. stitution, you have some of our largest over $2 billion of its commercial paper. But at the same time, a bigger trans- private corporations, but here is some- The sole purpose of the Korea Develop- action than TARP was taking place, thing we also learned, and that is that ment Bank is to finance and manage which got relatively little attention, this bailout impacted not just Amer- major industrial projects to enhance and that was the role the Fed was play- ican banks and corporations but also the national economy not of the United ing in terms of the Wall Street bailout. foreign banks and foreign corporations States of America but of South Korea. While the TARP issue was being de- as well, to the tune of many billions of I am not against South Korea. I wish bated during that period, Ben dollars. the South Koreans all the luck in the Bernanke, the Chairman of the Federal Then, on top of that, a number of the world. But it should not be the tax- Reserve, Tim Geithner, who was then wealthiest individuals in this country payers of the United States lending the president of the New York Fed, and also received a major bailout from the their banks’ money to create jobs in a handful of other very powerful people Fed. The ‘‘emergency response,’’ which South Korea. I would suggest maybe were sitting behind closed doors get- is what the Fed described their action we want to create jobs in the United ting ready to lend out trillions—under- as during the Wall Street collapse, ap- States of America. At the same time, line trillions—of taxpayer dollars to pears to any objective observer to have the Fed also extended over $40 billion

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8741 for the Central Bank of South Korea so what the Fed did during the financial economy. You have to lend money to that it had enough money to bail out crisis is whether the Fed has now be- small businesses to start creating jobs. its own banks. come the central bank of the world My office intends to investigate At a time when small businesses in without any debate on the floor of the whether these secret Fed loans, in Vermont and all over this country can- Senate or the Congress and without the some cases, turned out to be direct cor- not get the loans they need to expand knowledge of the American people. I porate welfare to big banks that may their businesses, I think the American think that is wrong. So I hope, out of have used those loans not to reinvest people would find it extremely—I don’t this effort in bringing disclosure and in the economy but, rather, to lend know what the word is—maybe amus- transparency to the Fed, that one of back to the Federal Government at a ing that the Fed bailed out the state- the things that will come will be more higher rate of interest by purchasing owned Bank of Bavaria—not Pennsyl- transparency at the Fed. Treasury securities. Now, we don’t vania, not California, but Bavaria—by As I indicated a moment ago, the Fed know that. Maybe that is true, maybe purchasing over $2.2 billion of its com- said this bailout was necessary in order it is not true, but we will take a look mercial paper. to prevent the world economy from at it. In other words, did the Fed give Furthermore, when we cannot get going over a cliff. But 3 years after the one-half of 1 percent loans to a bank support on the floor of this Senate to start of the recession, millions of and that bank then purchased a Treas- extend unemployment benefits to mil- Americans remain unemployed and ury security at 2 or 3 percent? If so, lions of Americans who are on the have lost their homes, their life sav- you have a 2-percent profit margin, and verge of seeing them expire, I think the ings, and their ability to send their that is nothing but corporate welfare. American people would find it incom- kids to college. Meanwhile, huge banks The goal of the bailout was not to prehensible that the Fed chose to bail and large corporations have returned make Wall Street richer; the goal was out the Arab Banking Corporation to making incredible profits and pay- to expand our economy and put people based in Bahrain by providing them ing their executives recordbreaking to work. with over $23 billion in loans with an compensation packages, as if the finan- Furthermore, we know that as part interest rate as low as one-quarter of 1 cial crisis they started never occurred. of the TARP agreement, there was an percent. So small businessmen all over What this recent disclosure tells us, effort to say to the financial institu- America: Maybe you have to run to among many other things, is that de- tions: We are not bailing you out in Bahrain and work with the Arab Bank- spite this huge taxpayer bailout, the order for you to get huge compensation ing Corporation there to get some pret- Fed did not make the appropriate de- packages. We are not going to give you ty good loans. But it would be nice if mands on these financial institutions Federal money so you can make all maybe the Fed would start to pay at- which would have been necessary to re- kinds of money. We put limitations on tention to banks in this country. Furthermore, the Fed extended over build our economy and protect the executive compensation. Did the Fed play the role of allowing $9.6 billion to the Central Bank of Mex- needs of ordinary Americans. In other some of the large financial institutions ico. words, what they simply did was give What is interesting about all of this out billions and billions of dollars to pay back the TARP money, use the is that we had a very vigorous debate which were used in the self-interests of Fed money, and then continue with here in the Senate and in the House these financial institutions rather than their very high executive compensa- over the $700 billion TARP program. saying: The American people who are tion? We don’t know, but it is worth in- Every person in America could turn on hurting are bailing you out, and now vestigating. C–SPAN and hear that debate. They that they have bailed you out, your re- Furthermore—and this is an issue I could hear what President Bush had to sponsibility is to do what you can to have worked on for a number of years. say, hear what then-Senator Obama create jobs and to improve the stand- We know every major religion on Earth—Christianity, Judaism, Islam, and Senator MCCAIN had to say. It was ard of living of the people, many of all pretty public. But what took place whose lives you have severely im- you name it—has always felt that at the Fed, which, in fact, amounted to pacted. usury is immoral. What we mean by a larger bailout, was done behind Let me give a few examples of what usury is that when someone doesn’t closed doors. Over $3 trillion was lent could have been done and what should have a lot of money and you loan them with zero transparency. In fact, as a re- be done. At a time when big banks have money, you don’t get blood out of a sult of this recent disclosure—this is nearly $1 trillion in excess reserves stone. You can’t ask for outrageously the first time we have gotten a glimpse parked at the Fed, the Fed has not re- high interest rates when somebody is of the magnitude and the particulars, quired these institutions to increase hurting. That is immoral. Every major the specificities of where that money lending to small and medium-sized religion, all great philosophers have was lent, and I think this is not a good businesses as a condition of the bail- written about this. Yet today we have thing for this country. Again, I voted out. In other words, instead of the Fed millions of people in our country—and against the bailout of Wall Street, but just giving money to these financial in- I hear from Vermonters every week on the debate was open and public. People stitutions, the Fed should have said: this issue—who are paying 25 percent wrote to their Senators and called We are giving you this money in order or 30 percent and in some cases even their Senators. That is called democ- to get it into the economy. Start pro- higher interest rates on their credit racy. After the TARP bailout took viding affordable loans to small busi- cards—20 percent, 30 percent interest place, all of the loans were put up on nesses. rates. That is getting blood out of a the Web site. Transparency—the Amer- At a time when large corporations stone. Yet many of the credit card ican people knew who got the money. are more profitable than ever, the Fed companies were bailed out by the tax- But the actions of the Fed were done did not demand that corporations that payers of this country. What the Fed behind closed doors, and, in my view— received this backdoor bailout create must do is say to those companies: it is an issue we are studying right jobs and expand the economy once they Sorry, you can’t continue to rip off the now—I think there were significant returned to profitability. So what is American people and charge them 25 conflicts of interest. I think we had going on in America? Unemployment is percent or 30 percent interest rates. people sitting there at the New York officially at 9.8 percent and in a real As it happens, the four largest banks Fed who were beneficiaries of this bail- sense probably at 15 or 16 percent, but in this country, which are Bank of out, and that is an issue we need to ex- Wall Street is now doing fine. America, JPMorgan Chase, Wells plore. I should tell my colleagues that A few years ago, Wall Street earned Fargo, and Citigroup, issue half of all as part of the provision we got into the some 40 percent of all profits in Amer- mortgages in this country. Four huge financial reform bill, the GAO is, in ica, and they are doing great. But what financial institutions issue half of all fact, doing just that—investigating the Fed should have done and should do mortgages in this country. That unto possible conflicts of interest at the Fed now is to tell Wall Street: You are part itself is a huge problem. They issue with regard to this bailout. of the economy. You are not an iso- half of all mortgages, two-thirds of all I think the question the American lated area just living for yourselves. credit cards. That speaks to another people are asking as they read about You have to be a part of the productive issue about the need to start bringing

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8742 CONGRESSIONAL RECORD — SENATE December 10, 2010 up these financial institutions. But lican leadership, which I think does not We can create jobs building the buses when you have a handful of banks that serve the American people well. One of and vans we need, making it easier and received huge bailouts from the Fed- the areas, as I mentioned earlier, where cheaper for workers in rural America eral Government that are issuing two- I think we could do a lot better in ad- to get to work. In urban areas, it is no thirds of the credit cards in this coun- dressing the crisis of high unemploy- different. Transit systems in Chicago, try, it seems to me to be somewhat ab- ment in this Nation is by investing the New York, and even here in Wash- surd that the Fed did not say to them: kinds of money we need in our infra- ington, DC, are in disrepair. Let’s im- Sorry, you can’t charge people 25 or 30 structure. prove and repair them. That makes us percent interest rates on your credit According to the American Society more efficient, more productive, and cards. The same principle applies to of Civil Engineers, they graded Amer- more competitive, and it creates jobs mortgages. I don’t have to tell anybody ica’s roads, public transit, and aviation now. Not one nickel, as far as I can un- in this country that we have seen mil- with a D. They said we must invest $2.2 derstand, has been invested in our in- lions of folks lose their homes through trillion over the next 5 years simply to frastructure in this agreement. foreclosure, and once again we see that get a passable grade. Unfortunately, in The United States invests just 2.4 the four largest banks in this coun- the agreement struck between the percent of GDP in infrastructure; try—Bank of America, JPMorgan President and the Republican leader- whereas, Europe invests twice that Chase, Wells Fargo, and Citigroup— ship, to the best of my knowledge, not amount. issue half of all mortgages. Four banks one nickel is going into investing in Here is something I think every issue two-thirds of the credit cards and our infrastructure. American should be keenly aware of half of the mortgages. We bail these fi- Let me tell you why we need to in- and very worried about. I don’t have to nancial institutions out. Don’t they vest in infrastructure. A, that is where tell anybody that the Chinese economy have some responsibility to the Amer- you can create the millions of jobs we is exploding every single day in almost ican people? How many more Ameri- desperately need in order to get us out every way. In China, they are investing cans could have remained in their of this recession. Second of all, we need almost four times our rate—or 9 per- homes if the Fed had required those to invest in infrastructure because, if cent—of their GDP annually in their bailed-out banks to reduce mortgage we don’t, we will become less and less infrastructure. Years ago, I was in payments as a condition of receiving competitive internationally. Shanghai, China. I was coming from these secret loans? According to the National Surface the airport to downtown as part of a In terms of the interest rates on Transportation Policy and Revenue congressional delegation. While we credit cards, a lot of people don’t know Study Commission, $225 billion is need- were on the bus coming in, my wife no- this, but right now the banks are able ed annually for the next 50 years to up- ticed something. She said: What was to charge as much as they want to grade our surface transportation sys- that? There was a blur that went by charge, but, in fact, credit unions are tem to a state of good repair and create the window. Of course, I didn’t notice not. a more advanced system. The Federal it; she did. It turned out that blur was Right now, we are looking at a situa- Highway Administration reports that an experimental train they were work- tion where over one-quarter of all cred- $130 billion must be invested annually ing on—high-speed rail, which is now it cardholders in this country are now for a 20-year period to improve our operational there, and other similar paying interest rates above 20 percent bridges and the operational perform- prototypes are being developed in and in some cases as high as 79 percent. ance of our highways. At present, one China. Here we are, the United States In my view, when credit card compa- in four of the Nation’s bridges is either of America, which for so many years nies charge over 20 percent interest, structurally deficient or functionally led the world in so many ways, and now they are not engaged in the business of obsolete. One in four of our bridges is you are seeing a newly developing making credit available to their cus- either structurally deficient or func- country such as China with high-speed tomers; they are involved in extortion tionally obsolete. Yet in this agree- rail all over their country, making and loan-sharking—nothing essentially ment struck by the President and the them more productive and efficient, different than gangsters who charge Republican leadership, to the best of and in our cities, our subways are outrageously high prices for their loans my knowledge, not one nickel is going breaking down. Amtrak is going 50, 60 and who break kneecaps when their into our infrastructure. We need to in- miles an hour, and the Chinese and Eu- victims can’t afford to pay them. So vest in our infrastructure. We need to ropeans have trains going hundreds of that is where we are right now. improve our infrastructure. When we miles an hour. I get calls—and I am sure every other do that, we can create millions of jobs. This is the United States of America. Senator gets calls—from constituents The Federal Transit Administration Maybe I am old-fashioned. I think we who are very upset. They are going says $22 billion must be invested annu- can do it too. I think we can rebuild deeper and deeper into debt because ally for a 20-year period to improve our rail system, make our country they can’t pay 25 or 30 percent interest conditions and performances for our more efficient and create jobs. rates on their credit cards. We bailed major transit systems. In Vermont, the China invested $186 billion in rail out the credit card companies. There situation is no different than in the from 2006 to 2009, and according to the was no provision that said: Stop rip- rest of the country. Thirty-five percent New York Times, within 2 years, they ping off the American people. Stop of Vermont’s 2,700 bridges—nearly 1,000 will open 42 new high-speed rail lines, these companies from committing bridges—are functionally obsolete. In with trains reaching speeds of 200 miles usury. recent years, we have had to shut down an hour. That is China. So I think if We are working on legislation that bridges, which caused a lot of incon- China can do it, the United States of would say to these private banks not to venience to people who live in those America can do it. That is the way to charge any more money for the credit areas, to workers who had to get to rebuild America, make us stronger and they provide than do the credit unions. work using a bridge. Nearly half the create jobs. It is going to be a tough fight because bridges in Vermont have structural de- By 2020, China plans to add 26,000 ad- the lobbyists from Wall Street are all ficiencies. Rural transit options are ditional miles of tracks for freight and over this place. Wall Street spends few and far between, making rural, travel, as well as 230,000 miles of new or huge amounts of money in campaign low-income Vermonters especially vul- improved roads, and 97 new airports—97 contributions, and it is going to be nerable to spikes in gas prices. In other new airports. Does anybody in America tough. But I think we need to pass words, in Vermont, and in other areas have the same problem I have when that. I think the Fed needs to be much of rural America, you have one choice you go to the airport, where you are more active, in terms of what kinds of in the vast majority of cases as to how waiting in line and you have to deal interest rates credit card companies you get to work. That one choice is with all the problems of older airports? should be paying. that you get in your car, you pay $3 for China is building 97 new ones. We are Today, I am going to focus a lot, ob- a gallon of gas, and that is it. That is not. If we are going to be effective in viously, on an agreement reached be- because rural transportation in this the international economy, and if our tween the President and the Repub- country is very weak. kids will have decent jobs, it is high

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8743 time we woke up and began investing of greenhouse gas emissions which are understand that while the middle class in our infrastructure. So that is not contributing to global warming. That pays its share of taxes, there are many only to improve the long-term strength is a win-win-win situation. Yet we are large corporations that not only are of America, our economic prowess, but not seeing that in this bill. paying nothing in taxes, they are get- it is also to create jobs right now that I wish to tell you something, Mr. ting rebates from the Federal Govern- we desperately need. President. I will get into this at great- ment. Unfortunately, in this bill, this tax er length later. When we talk about I will go into greater length later on, agreement between the President and our good friends in the oil industry— but as a member of the Budget Com- the Republican leadership, there are and I am not here to make a long mittee I can tell you we discuss quite many billions of dollars going into tax speech about BP and what they have often how every single year—every sin- breaks for corporations. But there is done in Louisiana, et cetera. I want ev- gle year—corporate interests and not a whole lot of money—in fact, zero erybody to know this. I will get into wealthy individuals stash away huge dollars—going into rebuilding our in- this at greater length later. Last year, amounts of money in tax savings in the frastructure. our friends at ExxonMobil—and Cayman Islands, Bermuda, and other Similarly—and I know there has been ExxonMobil has historically been the countries in order to avoid paying their debate since yesterday on this issue. most profitable corporation in the his- taxes in the United States of America. There may be a small breakthrough. I tory of the world. Last year, These are American corporations turn- don’t have to tell Americans, least of ExxonMobil had, for them, a very bad ing their back on the American people, saying—as Mrs. Helmsley said so many all the people in Vermont, about what year. They only made $19 billion in years ago, many of you remember— happens when the weather gets cold profit. Based on $19 billion, you might only small people pay taxes. Only the and you are forced to pay very high be surprised to know ExxonMobil not working stiffs out there pay taxes. prices for heating oil. The time is long only paid nothing in taxes, they got a overdue for us to make the invest- If you are a large corporation and $156 million return from the IRS. How you have a good lawyer or a good ac- ments we need to transform our energy is that? For those of you who are work- countant, you know what to do. You system away from coal, away from oil. ing in an office, working in a factory, invest your money in the Cayman Is- We are spending as a nation—and ev- earning your $30,000, $40,000, $50,000, lands and in Bermuda, and you don’t erybody in America has to appreciate $60,000 a year, you pay taxes. But if you have to pay American taxes. But, by this—$350 billion every single year—$1 are ExxonMobil, and you made $19 bil- the way, as the disclosure report last billion a day, roughly—importing oil lion in profits last year, not only did week indicated, no problem; you get from Saudi Arabia and other foreign you not pay any taxes this year, you bailed out. When things get bad, you countries, in order to make our econ- got $156 million in return. will be bailed out by the American tax- omy go and in order to keep people It is not just the large oil companies payers. On and on and on it goes. The warm. that do not pay their fair share of rich and large corporations get richer, Let me be very clear. The royal fam- taxes. I am going to get into this a lit- the CEOs earn huge compensation ily of Saudi Arabia, which is our major tle bit later, but when we try to under- packages, and when things get bad, source of oil, is doing just fine. Don’t stand why we have such a huge na- don’t worry; Uncle Sam and the Amer- worry about the royal family of Saudi tional debt and a $1.3 or $1.4 trillion ican taxpayers are here to bail you out. Arabia. They have zillions and zillions deficit, it is also important to under- But when you are in trouble, well, we of dollars. Maybe it is a good idea that stand that many large and profitable just can’t afford to help you, if you are we seek energy independence, that we corporations avoid virtually all of their in the working class or the middle break our dependence on fossil fuel, tax responsibility. class of this country. and become more energy efficient, In August 2008, the General Account- I want to return for a moment to the which, by the way, investing in public ability Office issued a report. Accord- agreement that the President and the transportation certainly will do, and ing to this report, two out of every Republican leadership negotiated be- we move to sustainable energy, such as three corporations in the United States cause I think that is the issue that all wind, solar, geothermal, and biomass. paid no Federal income taxes between of America is now talking about. The Guess what. China is doing that. Many 1998 and 2005. We have a $13.7 trillion President and the Republican leader- of the solar panels coming into this national debt, and according to a GAO ship say it is a good deal. Democrats in country are not made in the United report published in August of 2008 two the House yesterday said: Wait a sec- States but are made in China. They are out of every three corporations in the ond. It doesn’t look to us like it is a big into wind turbines. I think the time United States paid no Federal income good deal. In fact, we don’t even want is now for us to rebuild our infrastruc- taxes between 1998 and 2005. Amaz- to bring it up on the floor of the House. ture and create the jobs we desperately ingly, these corporations had a com- In the Senate, I can tell you there are need. bined $2.5 trillion in sales but paid no a number of us—I don’t know how Again, unfortunately, despite the income taxes to the IRS. many—who say: Wait a minute. This is enormous infrastructure needs we have Furthermore, according to a report not a good deal for the middle class, it in this country, this agreement, signed from Citizens For Tax Justice, 82 For- is not a good deal for our kids, and it by the President and the Republican tune 500 companies in America—I guess is not a good deal for our workers. We leadership, does not do that. When we that is 82 out of 500—paid zero or less in can negotiate a better deal. The reason talk about transforming our energy Federal income taxes in at least 1 year we are trying to delay passage of this system and moving away from fossil from 2001 to 2003. That is a report from agreement—and I hope very much it fuel and making our homes more en- Citizens For Tax Justice. And the Citi- doesn’t have the votes here—is we want ergy efficient and building solar pan- zens For Tax Justice report goes on to the American people to stand and say: els, moving toward solar thermal say: Wait a second, it makes no sense to us power, in the Southwest of this coun- In the years they paid no income tax, these to be giving huge tax breaks to the try—New Mexico, Arizona, Nevada—we companies earned $102 billion in U.S. profits. richest people in this country—lit- have some of the best solar exposure in But instead of paying $35.6 billion in income erally millionaires and billionaires— the entire world. There are estimates taxes, as the statutory 35 percent corporate and driving up the national debt so our that just in the Southwest of this coun- tax rate seems to require, these companies kids can pay more in taxes in order to try, on Federal land, we can provide 30 generated so many excess tax breaks that pay off that debt. percent of the electricity American they received outright tax rebate checks This is a transfer of wealth. It is homes need, if we move toward solar from the U.S. Treasury totaling $12.6 billion. Robin Hood in reverse. We are taking thermal. We need to invest in our That is from the Citizens For Tax from the middle class and working transmission lines. Justice report. families and we are giving it to the What we are talking about is massive So when we take a comprehensive wealthiest people in this country. I be- investment to create jobs, make us en- look at what is going on in this coun- lieve the agreement struck between the ergy independent, clean up the environ- try, why we have a $13.7 trillion na- President and the Republican leader- ment, and deal with the huge amount tional debt, it is terribly important to ship is a bad deal. There may be some

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8744 CONGRESSIONAL RECORD — SENATE December 10, 2010 good parts to it, but, by and large, it is tension because if we can’t tell our Re- cent, 45 percent, or 55 percent. I have not a good deal. We can do better, and publican colleagues that it is absurd to had people in Burlington, VT, come up the American people must stand up and continue giving tax breaks to million- to me and say: What are you doing? I work with us. They must get on their aires and billionaires—if we can’t do it have $30,000 in the bank that I want to phones and call their Senators and call now—what makes you think we will do leave to my kids. Why are you forcing their Congress men and women. They it in the midst of a Presidential elec- my kids to pay such a large tax? must make their voices heard and say: tion? So let me be very clear. The Repub- Enough is enough. The rich have it all I say that as somebody who admires licans have done a very good job in to- right now—the top 1 percent earns 231⁄2 and likes the President. The President tally distorting this issue. The estate percent of all income, more than the is a friend of mine. But his credibility tax is paid only by the top three-tenths bottom 50 percent—and it is absurd has been severely damaged. If he is of 1 percent of families in America. If that we continue to bail out people going to go forward, and if he is the you are in the middle class, even if you who do not need any help and who are Democratic nominee, I suspect he will are modestly wealthy, even if you are doing just fine. say: Yes, I extended it for 2 years wealthy, or if you are poor, if you are I am here to take a stand against against my will; but, don’t worry, I am lower middle class, you don’t pay a this bill, and I am going to do every- going to repeal them after 2 years. Tell nickel in estate tax if somebody in thing I can to defeat this bill. I am me, who will believe him? His credi- your family were to die and leave you going to tell my colleagues and the bility has been severely damaged. We wealth—not a nickel. This applies not American people exactly why, in my are caving in on this issue and we just to the rich but to the very, very view, this is not good legislation. Let should not be. rich. me just tick off some of the reasons I The polls show us the American peo- What the Republicans have been ar- think this bill does not serve the best ple do not believe millionaires and bil- guing for several years now is they interests of the disappearing middle lionaires need more tax breaks. If the want to repeal the estate tax entirely. class of this country. calls to my office are indicative of If they were successful in doing that, I don’t know what kind of telephone what is going on in this country, there that would mean increasing the na- calls the Presiding Officer is receiving is overwhelming opposition to that tional debt by $1 trillion over a 10-year from Colorado, but I can tell you that agreement. period and all of the benefits—not in the last 3 days alone, according to So I am saying that while the Presi- some, all of the benefits—go to the top my front desk staff both here in Wash- dent says don’t worry, that this is only three-tenths of 1 percent; 99.7 percent ington and in Vermont, we are over temporary, I don’t like it. But it is of the people do not gain one nickel. 5,000 telephone calls and e-mails, and I only 2 years. I have my doubts. I expect What is in this agreement is not believe well over 98 percent of those in 2 years, if this agreement goes for- what the Republicans ideally want, messages are against this agreement. I ward, it will be extended again. As you which is a repeal of the tax entirely, don’t know to what degree that is in- know, Mr. President, they wanted 10 but what they do get is a reduction to dicative of what is going on all over years on this extension of tax breaks 35 percent with an exemption on the this country, but I suspect it is not for the rich. I have my strong suspicion first $5 million of an individual’s es- radically different in other States. I that is exactly what will happen, if not tate. think the American people are saying, made permanent. This country cannot Here is a chart which indicates just with a $13.8 trillion national debt, let’s afford to give tax breaks to million- what I said a moment ago. ‘‘Repealing not give tax breaks to billionaires and aires and billionaires and have the the estate tax would add more than $1 drive up that national debt, forcing our middle class pay higher taxes to pay trillion to the deficit over 10 years.’’ It kids to pay more in taxes, and at the them off. is over $1 trillion, and the beneficiaries same time have Republicans coming I want to say also that while a lot of of it are just the very wealthy. forward to start slashing Medicare and attention has been focused on the per- Let me give an example of what the Medicaid and Social Security because sonal income tax issue, that is not the repeal of the estate tax would mean. I of this large debt that we are making only unfair tax proposal in this agree- will read it right off this chart. larger. ment. This agreement continues the Sam Walton’s family, the heirs to the Wal- I appeal to my conservative friends. I Bush era 15 percent tax rate on capital Mart fortune, are worth an estimated $86.8 am not a conservative, but many con- gains and dividends. billion. The Walton family would receive an servatives have spent their entire po- Let me be clear about what that estimated $32.7 billion tax break if the estate litical careers saying we cannot afford means. It means those people who tax was completely repealed. to drive up the national debt, that it is make their living off of their invest- This is what our Republican friends unsustainable. I agree with that. So ments—if you invest, if you earn divi- want. vote against this agreement because it dends—will continue to pay a substan- This agreement between the Presi- is driving up the national debt. In a tially lower tax rate than the average dent and the Republicans certainly significant way it is doing that by giv- American person in the working class, does not repeal the estate tax, but it ing tax breaks to people who abso- middle class—our firemen, our teach- does significantly lower the rates that lutely don’t need it. ers, our nurses. Those people are not the richest people, the very richest Once again, for those people who are going to pay 15 percent. They pay a people in this country, would have to earning $1 million a year or more, on higher rate than folks who have capital pay. average—on average—they will be get- gains and dividends. I think that is (Mr. UDALL of Colorado assumed the ting a $100,000-a-year tax break, and for wrong. This agreement extends those chair.) people earning $100 million a year, that provisions. Two days ago, I brought to the floor number will be a lot higher. Who be- Furthermore—and this is a point of the Senate a very simple piece of lieves that makes any sense at all? that has to be made over and over— legislation. I think how that legisla- Let me give some other reasons I this agreement between the President tion was treated speaks volumes about think this agreement is a bad agree- and the Republicans lowers the estate the debate we are having now. This leg- ment. The President says: Well, yes, we tax rate to 35 percent. Under this islation said that with over 50 million are going to extend tax breaks for all, agreement, the estate tax will decline senior citizens on Social Security and including the top 2 percent. But don’t to 35 percent. Under President Clinton, disabled vets for the second year in a worry, it is only going to be for 2 when the economy was much stronger, row not getting a cost-of-living adjust- years—not to worry, it is only going to the estate tax was 55 percent. ment, a COLA—over 50 million seniors be for 2 years. Now, I know the Republicans have on Social Security and disabled vets Well, maybe that will be the case. done a very good job in trying to con- not getting any COLA at all—despite But you know what. I doubt that very vince the American people this is a so- the fact their prescription drug costs much. I have been in Congress long called death tax; that in every family are going up and their health care enough to know if you extend a tax in America, when a loved one dies, the costs are going up, they got no COLA. break, it is very hard to undo that ex- family is going to have to pay 35 per- I said I think that in these tough

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8745 times, it is appropriate that we provide giving it to workers today. It is like aire a tax cut and charging it to our those folks—if we cannot get them a eating our seed. kids, who are paying taxes on, unfortu- COLA, let’s get them the equivalent of Rather than going into Social Secu- nately, in the last few years, declining a measly 2 percent COLA, a $250 check rity, the President says: Don’t worry, wages, is morally reprehensible. to all of our seniors and disabled vets. this is going to be covered this year by I know Senator SANDERS has been on That is what we did, by the way, in the the Federal Government. We have the floor 2 hours now talking about stimulus package. That is all. For over never seen that before. I don’t want So- this and how important it is and really 50 million people, a $250 check costs cial Security to be dependent on the analyzing it and educating about it and our government about $14 billion. Yet I Federal Government because the Fed- all that. I think about the economic could not get one Republican vote in eral Government has a $13.7 trillion na- policy, too, that this embodies. support of that. Republicans say: My tional debt. And what I worry about is Nine or 10 years ago, Senator SAND- goodness, imagine a senior or disabled this is not just a 1-year provision; this ERS and the Presiding Officer, when he vet living on $15,000 or $20,000 a year also could be extended. was a Member of the House, Senator getting a $250 check. What an outrage. Let me quote Barbara Kennelly. UDALL from Colorado, and I and others We have different priorities, they say. I am glad to see I am joined here on voted against the Bush tax cuts of 2001 We want to give a $1 million tax break the floor by one of the strongest fight- and 2003, principally because those tax to somebody who earns $50 million a ers for working families in the Senate, cuts overwhelmingly went to the year. That about says it all. If you are Senator Sherrod Brown of Ohio. I just wealthy and ended up adding to our na- very, very rich, the good news is you want to say this before I ask him a tional debt. We had a surplus then. We are going to get more tax breaks. But question or before he asks me a ques- sure don’t now. We had the largest sur- if you are a senior or disabled vet, we tion or whatever the protocol is. plus we ever had in 2001. It blew a hole can’t get you a $250 check. I want to quote what Barbara Ken- in that. But we passed those tax cuts I will say that the vote on the floor nelly, the president and CEO of the Na- under the belief, those who supported of the Senate was 53 people in favor of tional Committee to Preserve Social it—President Bush and Senator providing that one-time check, 45 Security and Medicare, said. This is MCCONNELL and so many others—under against—53 to 45: We won. But here in one of the largest senior citizens the belief that that kind of trickle- the Senate, majority does not rule. Re- groups in America. down economics would grow our econ- publicans filibuster almost everything, Even though Social Security contributed omy. and it requires 60 votes. We did not get nothing to the current economic crisis, it In the 8 years—and this is not par- the 60 votes, and seniors did not get has been bartered in a deal that provides def- tisan, this is not opinion, this is fact— that check. I am going to do my best to icit-busting tax cuts for the wealthy. from January 1, 2001, to January 1, 2009, President Bush’s 8 years, we actu- see that they do get it. We are going to Here is the key point: ally had private sector job loss in this bring that issue back and back again. Diverting $120 billion in Social Security country. Contrast that with a different I raise that issue to tell you that one contributions for a so-called ‘‘tax holiday’’ of the very weakest proposals in this may sound like a good deal for workers now, economic policy—January 1, 1993, to January 1, 2001, the Clinton 8 years. agreement, totally outrageous, is the but it’s bad business for a program that a Again, this isn’t partisan, this isn’t decrease in taxes for the estate tax. majority of middle-class seniors will rely There is another issue I want to upon in the future. opinion, this is fact. During the Clin- touch on. I am going to spend a lot of Barbara Kennelly, president and CEO ton 8 years, we had 21 million private time on this issue because it has not of the National Committee to Preserve sector jobs created—21 million private sector jobs created—and literally zero gotten the coverage and the attention I Social Security and Medicare. private sector jobs in the Bush 8 years think it deserves. I am joined by my very good friend This agreement deals with the so- from Ohio, and I want to ask him his of trickle-down economics. Why would we blow a hole in the called payroll tax holiday. I know the sense of this overall agreement. budget, which this bill does, for our Vice President and the President and Mr. BROWN of Ohio. My sense is kids to pay off? Why would we continue others have been touting this. They similar to yours. I was just on a TV an economic policy that clearly did not say this is really a good thing because show a minute ago. I was asked, the work for this country? It didn’t work it will put more money into the pock- liberals or the conservatives, what for the middle class. We saw middle- ets of the working people. What will they think about this. This really is class wages—not only no job increase happen—right now, if you are a worker, not a liberal-conservative issue. First during those 8 years, except for the of all, the tax cuts overwhelmingly go you put 6.2 percent into Social Secu- people at the very top, we saw actual to the wealthiest taxpayers. We are rity. It is going to be reduced for 1 year wage stagnation or worse. Most Ameri- seeing the kinds of tax cuts that mil- to 4.2 percent. You get the difference, cans did not get a raise during the 8 lionaires and billionaires get from the and this is really a good thing. All of Bush years. Most Americans simply income tax and from the estate tax. us want to see working people have saw their wages flat or in many cases But it is also equally important that it more money in their pockets. That is decline. The superwealthy saw a big in- blows a hole in our budget deficit. what we do. That is what we are fight- crease in their incomes and in their net In some sense, we are borrowing tens ing for. assets. And now we are going to give a But let me be clear that while on the of billions of dollars every year now—if tax break to them. surface this so-called payroll tax holi- this agreement becomes law, we are This is not class warfare. Lots of peo- day sounds like a good idea for working borrowing tens of billions of dollars ple I know have a lot of money. I don’t people, it is actually a very bad idea. every year from the Chinese, and we have any ill will for them. But why What the American people should un- are putting it on the credit cards of our would we help those people who have derstand is that this payroll tax holi- children and grandchildren for them to done so very well and then have our day originated from rightwing Repub- pay off who knows when, and then we children pay for it? licans whose ultimate goal, trust me, is are giving these tax cuts to million- Senator SANDERS just mentioned the not to put more money into the pock- aires and billionaires. In those simple letter from Barbara Kennelly from one ets of working families; it is the ulti- terms, it doesn’t make sense. It doesn’t of the largest seniors organizations in mate destruction of Social Security. make sense in our relationship with the country and what this will mean What they understand is that if we di- China. It doesn’t make sense in the lost for Social Security. Here is my fear. If vert funding that is supposed to go into jobs that come from that China trade this is passed, we are going to see our the Social Security trust fund, this policy. It doesn’t make sense in under- budget deficit increase, according to will ultimately weaken the long-term mining the middle class. It doesn’t the Congressional Budget Office, about financial viability of Social Security. make sense in terms of fairness in the $900 billion because of this package, In other words, what we are doing is, tax system. It doesn’t make sense for $800-some billion over the next couple for the very first time, diverting our children and grandchildren and the of years. money which is supposed to go into the burden they are going to have to bear As soon as it is signed by President Social Security trust fund and we are to pay off this debt. Giving a million- Obama, even though it was negotiated

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8746 CONGRESSIONAL RECORD — SENATE December 10, 2010 with the Republican Senate leadership question, it is on an issue the Senator am not accusing them of that, to be and overwhelming numbers of Repub- dealt with last night. Talk about the sure, but they were there for their rich licans in the Senate and House—I as- kind of priorities we have seen in the friends and their biggest contributors sume they are going to vote for it— Senate recently, where just a couple of and the wealthiest people in this coun- they are going to say: Look at the huge days ago the Senator and I worked try. But they were not there for a sen- budget deficit President Obama cre- very hard to try to make sure seniors ior citizen living on $1,200 a month that ated. From that day on, they are going on Social Security and disabled vets could use that extra $250. to go after ways to cut the budget. were able to get a $250 check at a cost I have met too many seniors, and I That is OK. I agree we need to deal of $14 billion, we could not get one Re- know the Presiding Officer, when he with spending and taxes and the whole publican vote for that, while at the travels to Colorado Springs or he goes picture. same time Republicans are pushing tax to Cimarron or he goes to Denver, I But I also know from watching Re- breaks of over $1 million a year for the know he hears seniors say: I cut my publicans—I saw them in the House richest people in this country. Does pills in half because I need my pre- when they moved toward Medicare pri- that seem—— scription to run for 2 months rather vatization in 2003, 2004, and 2005. They Mr. BROWN of Ohio. It tells a story. than 1 because I cannot afford it. Or I had some success. Fortunately, we I came to the floor right after that skipped my medicine today because my were able to beat back most of it. I re- vote. I had supported it all along. I co- house is too cold, and I do not have member that in 2005, after President sponsored Senator SANDERS’ effort to enough heat. We know seniors make Bush was reelected in a very close race, bring that to the floor, for the $250 those choices. We make choices here, he spoke repeatedly about privatizing check for all seniors and all disabled and the choice we made is 42 Repub- Social Security. I know that is what veterans, I might add, not just Social licans made it and blocked it because they want to do. In the 1990s, Speaker Security beneficiaries. But I came to we need 60 votes. We had a majority of Gingrich—fortunately beaten back by the floor right afterwards because I voters, an easy majority, for Senator President Clinton—tried to privatize was pretty amazed. SANDERS’ effort, 53 votes, 53 votes to do Medicare. I know there is partisanship here. I this, the $250, but we need 60 votes. That is the way they cut the budget, know some people think their whole So 42 Republican Senators engaged in they go after Medicare and Social Se- view of the world is to give tax cuts to their work stoppage saying: We are not curity. So this vote on this package— the richest people of the world and it doing anything until we get these tax to me, we need to call the President, will all trickle down and we will all do cuts for the rich. They said no to sen- write the President, work with the better, it will lift all boats. That is a iors. I am amazed by that, the callous- President to say: No deal, and this has pretty good economic theory you ness. I guess I am even more amazed to be something very different from might have learned at Harvard or you when you consider—what is today, the what it is now because it will cause might have learned at Johns Hopkins 10th—when you consider in 2 weeks it huge deficits our children and grand- near here or wherever. But it does not is Christmas Day. That does not seem children will have to bear. It will not work. It is a nice theory, but it does to bother them. It does not seem to help the economy appreciably because not work to lift all boats. bother them on unemployment bene- we saw what the trickle-down eco- So Senator SANDERS’ effort was to fits. And 85,000 Ohioans, a week and a nomic policies of the Bush years did. It provide a $250 check, one time, at a half ago, lost their unemployment ben- does not help the middle class enough. So it is pretty clear to me how this cost of $14 billion. But one time, not efits—85,000. Their holiday season is ru- jeopardizes Social Security, how it continued $14 billion—one time for sen- ined. jeopardizes Medicare, how it will force iors who had not had a cost-of-living But I guess all of us will go home. I more cuts and more pressure on those adjustment in 2 years. It just seemed want to go home and be with Connie programs that have lifted so many peo- to make so much sense when the aver- and my kids on Christmas. My children ple into the middle class. In 1965, when age senior in this country gets about a are grown. We have one grandchild. I Medicare was first passed, half of the $14,000-a-year Social Security check. I want to be with him for as much of senior citizens in this country had no think that is about $1,200 a month. Christmas as I can. But we have a job health insurance—half of the seniors That is not their entire income for to do today, this week and next week had no health insurance. Today 99 per- most seniors, but it is a big part of it. and this month and this year; and that cent of seniors have health insurance, Many seniors live only on that. Many is to extend unemployment benefits to something like that. more seniors live on that, but only an- people who have lost them, who are I know we are a country now that has other couple $300, $400 a month. looking for jobs as hard as they can in created a strong middle class. We have There is not inflation maybe for peo- a great majority of cases, and extend- seen that middle class—because of ple my age so much in this country, ing the tax cuts for the middle class these tax cuts for the wealthy, trickle- but if you are older and you have a lot and doing the right thing. So far, we down kind of economic policy, we have of health care costs, there is inflation have not done that. seen the middle class shrink in the last because the health care costs seem to I need to go to the airport. But I few years. I do not want that to keep go up higher than maybe anything but want to yield back to Senator SANDERS happening. That is why I am very con- higher education, and maybe as much for his work today. I hope next week, cerned about this. That is why I am as that. So it was important that $250 when we come back on Monday, we are working with the Senate to say: No be provided, we think, to every senior prepared to do whatever it takes to say deal. We need to much more seriously in the country and every disabled vet. no deal on this one and to make this focus on not running up a huge debt, on What was so amazing about it was work for the middle class, make it making sure Social Security is pro- that 42 Republican Senators signed a work for Social Security beneficiaries, tected, on an economic policy that letter saying they would do nothing, make it work for unemployed workers. works for the middle class, on a tax nothing in the Senate, until tax cuts Mr. SANDERS. I thank my good policy that is fair to the middle class. for the rich were approved, until they friend from Ohio, one of the real fight- That is why Senator SANDERS’ work were signed into law. ers for working families in the Senate, is so important on the floor today, tak- Now, I have never seen Senators en- not only for coming down here but for ing the floor for a longer period than gage in a work stoppage or a strike. I his years of efforts. But he makes a anybody I have seen since I have been mean, it was not quite a strike, which very important point. We have a job to in the Senate, in a filibuster kind of it is probably illegal for us to strike. I do and the job is—I know some people setting, where he is raising these ques- do not know, maybe. But it was a work do not believe it. It is a rather radical tions, asking these questions, edu- stoppage. concept. But our job is to represent cating the public, talking to people all They are saying: We are not doing working families, the middle class, and over the country, in this Chamber and anything until you give tax cuts to my not the wealthiest people in this coun- outside to change this policy. rich friends, and I might say also to try. Mr. SANDERS. If I could interrupt many people in the House and Senate I have four kids, six grandchildren. I my friend from Ohio and ask him a whose income is in that bracket too. I look forward to spending the holidays

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8747 with them. But you know what. We infrastructure. It creates jobs. It adds tion. To not extend that tax cut for 98 have a job to do, and if it means stay- long-term value to this country. Unfor- percent of America would be a trav- ing here through Christmas Eve, tunately, in this agreement, there is, esty. So we have to maintain those tax through New Year’s, that is our job. to the best of my knowledge, not one cuts, and that is a positive thing in the And let’s pass a proposal that works nickel going into infrastructure. It is agreement which obviously any future well for ordinary families and not just important that we, in fact, add provi- agreement must maintain. for the wealthiest people in this coun- sions which do invest in our infrastruc- Also in this agreement is the earned- try. ture and create jobs. income tax credit for working Ameri- I wanted to thank Senator SHERROD Another point that should be made cans, a very important provision, and BROWN for coming down. when we look at this so-called com- the child and college tax credits are What I want to say now is, when you promise agreement established by the also in this agreement. These proposals look at this agreement, we have talked President and the Republican leader- will keep millions of Americans from now about the absurdity, in the middle ship is that in the agreement there is slipping out of the middle class and of a time when we have a $13.7 trillion an extension of unemployment benefits into poverty, and they will allow mil- national debt, of giving tax breaks to for 13 months. Now, there is zero ques- lions of Americans to send their kids to people who do not need it. Senator tion, in my mind; that is something college. I am not here to say to the BROWN and I have talked about the that absolutely has to be done. Right President or the Vice President that dangers inherent in this payroll tax now—Senator BROWN made this point— there are not any good proposals and holiday and what it might mean for the we have millions of Americans who parts of this agreement. There are. But future of Social Security. But I also have, through no fault of their own, we can do much better. What the President says—and he wanted to make another point; that is, lost their jobs. Maybe their plants makes a valid point—show me the that there are many billions of dollars went to China. Maybe their companies votes; he is good at counting. We tried in this proposal going to a variety of could not get the loans they needed to a proposal here, where we only got 53 business tax cuts. Some of them, in stay in business. Small businesses are votes, which said we are going to ex- fact, might work; some of them, in going under, big businesses are shut- tend the tax breaks for the middle fact, might not work. But what is very ting plants. No question we have to ex- class and not the very rich. The Presi- clear is, if your goal is to create as tend unemployment benefits. dent knows, as everybody else knows, But what bothers me is that this pro- many jobs as possible for every dollar that around here Republicans filibuster of investment, this particular approach vision in this agreement, which is a everything. We need 60 votes, and he is not very effective. good provision, suggests that this is a said: Show me the votes. This is what When we talk about tax breaks for hard-won compromise; that the Repub- I would say: What our job right now is corporations and companies, what we licans conceded something and they about is reaching out to the American should be aware of is that corporate agreed to a 13-month extension of un- people from one end of the country to America today—today—is sitting on employment benefits. But here is the the other, from California to Vermont, close to $2 trillion in cash. They have fact. The fact is, for the last 40 years, including a lot of our very conservative that cash on hand. The problem is not when unemployment rates have gone States. Frankly, it is not a conserv- that they do not have the money, the above 7.2 percent, Republicans and ative approach to substantially in- problem is that working people do not Democrats, in a nonpartisan way, have crease the national debt by giving tax have the money to buy the products come together to say, of course, we are breaks to billionaires. How many times these guys are producing. I believe, and going to extend unemployment. This is have we been here on the floor hearing not just me but I think a variety of America. We are not going to let work- our Republican colleagues give long economists from across the board, it ing families who are suffering hard speeches about the danger and the makes a lot more sense if we are seri- times because, through no fault of unsustainability of a $13.7 trillion na- ous about creating jobs to invest in our their own, they have lost their jobs, we tional debt and a $1.4 trillion deficit? infrastructure. are not going to let them lose their We have heard it day after day. That is I say that for a number of reasons. homes or not enable them to feed their their mantra. If they believe that, why When you put money into roads and families. This is America. We are not are they voting for a proposal that sub- bridges and public transportation, you going to do that. stantially increases the national debt are creating, for every dollar you Republicans have said that for 40 for the very unproductive reason of spend, far more jobs than giving a vari- years. Democrats have said that for 40 giving tax breaks to the richest people ety of tax breaks. That is an economic years. Democratic and Republican who don’t need it? fact. Presidents, leaders in the House and The reason we have to defeat this Second of all, when you are investing Senate, have said that. So to say: Oh, proposal and fight for a much better in our infrastructure, not only are you my goodness, the Republicans made a one is, I would hope that people creating jobs short term, you are leav- major concession; they are going to throughout this country, from ing the country with long-term im- allow the extension of unemployment Vermont and Colorado, and many of provement that increases our competi- benefits for 13 months, that is not a our conservative States, would come tiveness in a very tough global econ- concession. That has been bipartisan forward and say: Wait a second. I do omy. I mentioned a moment ago, and public policy for the last 40 years. not want to see my kids and grand- we will get back to it later, China is in- Now, I have been expressing to you children pay more in taxes because we vesting huge amounts of money into and to the American people why I have borrowed money from China to in- high-speed rail, into their roads, into think this is not a good agreement, crease the national debt in order to their bridges. Yet if you drive around why I think this agreement should be give tax breaks to millionaires and bil- certain parts of America, you think we defeated and why I believe we can put lionaires who have done extraor- are a Third World nation. You have together a much better agreement. dinarily well in recent years and, by roads with all kinds of potholes. You I do want to be clear. There are posi- the way, have seen a significant decline have bridges which you cannot go tive aspects to this agreement which in their effective tax rate. across. You have rail systems where should be maintained in an improved I know the Chair has heard wealthy trains are going slower—there is a proposal. Let me mention some of people such as Warren Buffett make study out there that I am going to get them. This proposal, in addition to ex- the point over and over again that to later—where somebody said that tending unemployment benefits for 13 what he really pays in taxes, his effec- decades and decades ago, it took less months, extends the middle-class tax tive tax rate, is lower than his sec- time to go from various parts of this cuts. That is obviously something we retary’s. All over this country we have country to the other on trains than it have to do. The reality is that the mid- examples where very rich people are does today because our rail beds are in dle class is collapsing. During the Bush able to stash money in the Cayman Is- such bad shape. years we saw a $2,200 decline per year lands, take advantage of all types of So if we are going to make our coun- in median family income. Working loopholes, and are paying rather low ef- try competitive, we have to invest in families are hurting. There is no ques- fective tax rates, in many cases lower

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8748 CONGRESSIONAL RECORD — SENATE December 10, 2010 than police officers or firemen or country today. I know my father came cent already today owns more wealth teachers or nurses. Opposition to this to this country at the age of 17 without than the bottom 90 percent. How much agreement should be tripartisan. We a penny in his pocket. He became the more do they want? When is enough should have conservative Republicans, proudest American one could ever see. enough? Do they want it all? We al- liberal Democrats. He didn’t have much of an education, ready have millions of families today I am an independent progressive. I but he knew this country gave him a who have zero wealth. They owe more can tell my colleagues in the last 3 great opportunity. That is the Amer- than they own. Millions of families days my office has received probably ican story. That is what it is all about. have below zero wealth. We are living close to 3,000 phone calls, 98 percent of To millions and millions of families, in a situation where the top 1 percent them against this agreement, probably whether they came from other coun- owns more wealth than the bottom 90 higher than 98 percent, and a huge tries, whether they just made it on percent. The top 1 percent owns more number of e-mails also overwhelmingly their own—I know we have heard the wealth than the bottom 90 percent. against this agreement. I suspect—I majority leader HARRY REID talking That is simply unacceptable. don’t know it for a fact—that this is about his experience growing up in a This is something we must be abso- the kind of message the American peo- desperately poor family—that is what lutely ashamed about and have to ad- ple are sending us all over America. America is about. But there are a lot of dress, instead of giving tax breaks to But they have to continue to do so. folks out there who believe there is billionaires. Maybe we should appre- They have to make it clear so we can something wrong, and the facts back ciate the fact that about 25 percent of win over at least a handful of Repub- them up. our children are dependent on food licans and some wavering Democrats What is going on in this country is stamps. We should understand that in and say: Wait a second. We are not the middle class is collapsing. Poverty the industrialized world, the United going to hold hostage extending mid- is increasing. I have four kids and six States, as this chart shows, has the dle-class tax breaks in order to give tax grandchildren. I am not worried about highest rate of childhood poverty. Is breaks to billionaires. We will not hold me, but I am worried about what hap- this America? Is this America? The hostage extending unemployment for pens to my kids and my grandchildren. United States today has over 20 per- workers who have lost their jobs by We have some wonderful young pages cent of its kids living in poverty. In giving tax breaks to people who don’t here, and we worry about their futures Finland, the number is about 2 or 3 per- need it. as well. We don’t want to see our kids cent; Norway, maybe 4 percent; Swe- If the American people give voice to and grandchildren be the first genera- den, maybe 4.5 percent; Switzerland, 6 what they are feeling, that this is not tion in the modern history of America percent, whatever it may be. But here a good agreement, that we can do a lot to have a lower standard of living than we are. If people are watching on tele- better, I think we can defeat this pro- their parents. We don’t want to see this vision, what they are seeing is the red posal, and we can come back with a country’s economy move in the wrong line. Here is the United States, well much better proposal which protects way. We don’t want a race to the bot- over 20 percent. Here is the Nether- the unemployed, extends unemploy- tom. We want to see our kids live lands in second place. It looks to me ment benefits, protects the middle healthier and better lives than we do, like about 7 percent. This is the future class, extends the Bush tax cuts for 98 not have to work longer hours, not get- of America. So we are sitting here percent of the population, and protects ting a lower quality of education or talking about an agreement which a lot of important programs, making less education. That is not the history says: Let’s give huge tax breaks to bil- college more affordable, making of this great country. lionaires. And here is the reality. We childcare more affordable, and helping I want to talk about one aspect of have a rate of childhood poverty far us transform our energy system. what is going on that does not get the surpassing any other country on Earth. There is a lot we can do if we defeat kind of attention it deserves. There are This is the other half of the equation. this proposal. We are not going to do it obvious reasons why, having to do with What do my colleagues think happens inside the beltway. Republicans are who owns the media and corporate con- when we have millions of kids living in very united. But what we have to do is trol of the media, having to do with poverty? What do my colleagues think win at least a handful of them and who provides the campaign contribu- happens when we have kids who are some wavering Democrats to say: Mr. tions that elect Members of the House dropping out of school when they are 13 President, Republican leadership, you and Senate, having to do with all the or 14? I talked to a fellow in Vermont guys have to involve Congress in this lobbyists who surround this institu- who runs one of our jails. He said about discussion. tion. Wall Street and the oil companies half the kids who drop out of school I was pleased yesterday that the spend hundreds of millions of dollars end up in the penal system. That is Democratic caucus said: Sorry, we are on campaign contributions. The issue I what happens. The result is, the high- not bringing that proposal onto the wish to discuss is who is winning and est rate of childhood poverty in the in- floor. I applaud Speaker PELOSI and the who is losing in this economy. I come dustrialized world, and then what we Democratic caucus for saying so. That from New England. Everybody follows end up with is more people behind bars took courage. Congressman WELCH the Celtics. We follow the Red Sox, the than any other country on Earth. from the State of Vermont played an Patriots. What everyone asks is, who China is a Communist totalitarian important role. Congressman PETER won the game? Did the Patriots win or society, much larger than the United DEFAZIO played an important role. I lose? That is what we want to know. States, which is a democratic society. congratulate him. I congratulate the In fact, in America, it is pretty clear We have more people in jail than China caucus for saying we can do better in the economy who is winning and los- and more people in jail than any other than we are doing. ing. The vast majority of people, work- country. So what we end up doing, Let me be frank: We are not going to ing people, middle-class people, low-in- which seems to be not terribly bright, do better unless the American people come people are losing. That is who is is spending perhaps $50,000 a year keep- stand up and help us. We are going to losing. It is clear who is winning. The ing people in jail because they dropped need a lot of phone calls, a lot of e- wealthiest people are doing phenome- out of school. They never found a job. mails, a lot of messages so that all of nally well. They are winning the eco- They got hooked on drugs or whatever. our colleagues in the House and Senate nomic struggle. We pay to put them in jail rather than understand the American people do not In America today—we don’t talk investing in childcare, in education, in want to see their kids having to pay off about this too much, but it is time we sustaining their families. the debt incurred by giving tax breaks did—we have the most unequal dis- So when we look at the context in to billionaires. tribution of wealth and income in the which this agreement was reached, we This agreement doesn’t come out of industrialized world. I haven’t heard have to see that it takes place at a the blue. It comes within a context too many people talk about that issue. time when the rich are already doing that frightens many people. Many Why not? Our Republican colleagues phenomenally well, while we have the Americans have a sinking feeling that want huge tax breaks for the richest highest rate of childhood poverty in there is something very wrong in our people, but the reality is the top 1 per- the industrialized world.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00020 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8749 During the 8 years of President Bush, other large profitable corporations not only for the general population but the wealthiest 400 Americans—that is paid no Federal income taxes. even worse for our young people, kids not a lot of people, 400 families—saw So what you have is a tax system getting out of high school, young peo- their income more than double while which is totally distorted in the sense ple graduating college. their income tax rates dropped almost that it allows large profitable corpora- According to the Washington Post— in half. So you have 400 families—all of tions to pay, in some cases—in many this came from the Washington Post in whom are already multi-multimillion- cases—zero. In fact, last year—it would January: aires—where during the 8 years of be funny if it really was not pathetic— Middle-income households made less in President Bush their income more than as I understand it, ExxonMobil, which 2008, when adjusted for inflation, than they doubled while their income tax rates made $19 billion, paid nothing in taxes. did in 1999. . . . dropped almost in half. Bank of America—Bank of America got In other words, the American econ- I would say to my colleagues in the a huge bailout from the American tax- omy has turned into a nightmare for Senate, we do not have to worry about payer, paying their executives all kinds tens of millions of families. Imagine these guys. They are doing just fine. of fancy, huge compensation pack- that. They do not need an extension of tax ages—got a refund check from the IRS. Middle-income households made less in breaks. The wealthiest 400 Americans That is how absurd the situation is. 2008, when adjusted for inflation, than they now earn, on average, $345 million a And people say: Oh, my word, in order did in 1999—and the number is sure to have year, and they pay an effective tax rate to deal with our deficit, we are going to declined further during a difficult 2009. of 16.6 percent. How is that? All right. have to cut back on Medicare and Med- They did not have those numbers, The top 400 wealthiest people in this icaid and education. We cannot afford but because of the Wall Street collapse, country earn $345 million a year, and it. I guess we can afford to allow that certainly is the case. they pay an effective tax rate of 16.6 ExxonMobil, the most profitable cor- So what are we talking about? We percent. They do not need an extension poration in the history of the world, to are talking about, as I have just dem- of tax breaks. make huge sums of money and pay onstrated, the people on top seeing a By the way, for the United States of nothing in taxes. We can afford to do doubling of their income, while their America, this effective tax rate of 16.6 that, but we cannot afford to protect effective tax rates are going down. You percent, on average, is the lowest tax working families and the middle class. are seeing the middle class collapsing. rate for the very rich in America that In the year 2005, one out of every four What this agreement says is that we there has ever been. So we have al- large corporations in the United States are going to provide huge tax breaks ready given the wealthiest people in paid no Federal income tax on revenue for millionaires and billionaires. That this country the lowest effective tax of $1.1 trillion. Now, what do you is insane. Only within the beltway rates in the history of our country, at think? Maybe before we start cutting could an agreement such as that be ne- least since they have been keeping Social Security and Medicare and Med- gotiated. records. That is what we have done. So icaid and veterans programs, we would As I mentioned earlier, in the last 3 the idea of giving these guys—who are want to ask some of these very large days, we have received thousands and doing phenomenally well, who already and profitable corporations to pay at thousands and thousands of phone calls own more wealth than the bottom 90 least something in taxes? From 1998 to and e-mails to my office, and over 98 percent—more tax breaks is totally ab- 2005, two out of every three corpora- percent—I daresay 99 percent—say this surd. tions in the United States paid no Fed- is not a good agreement, do not sup- Under the 8 years of President Bush, eral income taxes, according to the port it. the wealthiest 400 Americans—we GAO report. Mr. President, I have been joined on talked about how they doubled their Sadly, the economic pain millions of the floor by the very distinguished incomes; income is what happens in 1 people are experiencing did not even Senator from the State of Louisiana. I year—under the 8 years of President begin as a result of the Wall Street ask unanimous consent that I be per- Bush, the wealthiest 400 Americans in- bailout. The middle class was col- mitted to enter into a colloquy with creased their wealth by more than $380 lapsing long before that. It is wrong to Senator LANDRIEU. billion. Four hundred families in- blame Bush for all the problems. He The PRESIDING OFFICER. Is there creased their wealth by $380 billion. contributed a lot to it but not all of it. objection? That averages to almost $1 billion a That trend has been going on for many Without objection, it is so ordered. family. Mr. President, $1 billion in 8 years. Mr. SANDERS. I thank Senator years. That is the average; some, obvi- As the Washington Post reported last LANDRIEU very much for joining us ously, more. January—let me quote from an article here. I wondered if the Senator could Collectively—I know this is not an because, again, I want to put the eco- give the American people her thoughts issue we talk about too much—the 400 nomic reality facing the middle class about this agreement and what has richest Americans have accumulated in contrast to the economic reality fac- been going on. $1.27 trillion in wealth. If any of them ing the very rich in the broad context Ms. LANDRIEU. Mr. President, I die this year, their heirs can receive, of this agreement signed by the Presi- thank the Senator from Vermont for right now, all of this money tax free dent and the Republican leadership. As his eloquent and passionate presen- because the inheritance tax has been the Washington Post reported last Jan- tation for hours this morning. He eliminated in 2010 as part of the Bush uary: clearly has presented to this Chamber estate tax repeal this year. and to the American people some stark Last year, the top 25 hedge fund man- The past decade— realities that are unpleasant. Some agers made a combined $25 billion in The Bush 8 years plus 2 years— people might even find them hard to income—a combined $1 billion per per- was the worst for the U.S. economy in mod- believe. But he has done his homework. son. OK. So if you are a hedge fund ern times. . . . He has documented what he said. In manager, you are doing pretty good. I It was, according to a wide range of data, that backdrop, it does make this agree- mentioned a moment ago that we tried a lost decade for American workers. ment, made between the Republican just the other day to get checks of $250 ‘‘A lost decade for American work- leadership and the President of the out for disabled vets and senior citizens ers.’’ Do you know why people are furi- United States, even harder for some of on Social Security who have not had a ous? Do you know why they are angry us to understand. COLA in 2 years. We could not get at Washington and everybody else? The I want to acknowledge, as the Sen- them that check. But last year the top last decade was, according to the Wash- ator said—I know there are pressures 25 hedge fund managers made a com- ington Post, a lost decade for American on all sides, and time is running out; bined $25 billion in income—$1 billion workers. we have to make a decision about tax per person. And our Republican friends There has been zero net job creation since cuts in a short period of time. We do say: Oh, my word, my word, we have to December 1999. not have the benefit of several months lower their taxes. Last year, Twelve years of zero job creation, or even half a year. I understand the ExxonMobil, Bank of America, and which is why unemployment is so high, pressures of time. But as the Senator

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00021 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8750 CONGRESSIONAL RECORD — SENATE December 10, 2010 from Vermont pointed out, how about they get three yachts and eight air- I don’t know if the Senator has an- the pressures on the middle class? planes, I guess, but there is a limit to other point before I go into a few What about these pressures? What what they can purchase. thoughts. about this pain? Ms. LANDRIEU. And there is a limit Mr. SANDERS. Let me ask the Sen- I was wondering, because I wanted to to what they can consume. ator—and I thank her very much and I ask the Senator from Vermont—I was What the Senator from Vermont is agree with what she has been saying. I not able to follow his entire presen- saying and what I am saying—I want to was mentioning earlier the calls com- tation this morning—did he quote from be very clear, because the Senator and ing in and the e-mails coming into my the report ‘‘Income Inequality and the I don’t agree on every piece of legisla- office are overwhelming: 99 percent Great Recession,’’ done by the U.S. tion. He tends to be a little bit more against this. Are you getting similar Congress Joint Economic Committee, liberal and progressive in his politics calls? led by CHARLES SCHUMER? I ask the than I am, but on this subject we are Ms. LANDRIEU. I am getting calls, Senator, did you quote from this re- both equally concerned about the and I am getting about 50 percent for port? shrinking of the middle class. From my and 50 percent against. The State of Mr. SANDERS. We quoted from a perspective—the Senator may have a Louisiana is a little different than the number of studies, but not that one, I different view—I am talking about the State of Vermont. Many of the calls say to the Senator. broad middle class: incomes of $50,000 coming in from around the country are Ms. LANDRIEU. I would like to add to $500,000. In my State, $500,000 of in- against giving—well, actually, let me in our colloquy, if the Senator is come—not net worth but income—is a say this: Most of the calls coming in aware, according to this report that huge amount of money. In fact, I are absolutely against giving tax cuts just came out in September of this brought a graph to show that 84 per- to people over $1 million. year: cent of the households in Louisiana— Mr. SANDERS. That is what I am when I talk about middle class—84 per- Income inequality has skyrocketed. Econo- talking about. mists concur that income inequality has cent of the households in Louisiana Ms. LANDRIEU. Overwhelmingly, risen dramatically over the past three dec- make less than $75,000. I said 84 per- people are calling in and saying, Is that ades. cent. Most people in Louisiana—most— really happening? In fact, my office Middle-class incomes stagnated under believe they are in the middle class, told me today that actually 10 people President Bush. During the recovery of the but 84 percent make below $75,000. called who had incomes over $1 million, 1990s under President Clinton, middle-class So when I use the term middle which I found very interesting, to say incomes grew at a healthy pace. However, class—and we all have a different during the jobless recovery of the 2000s under view—I am saying the broad middle they supported my position: Tell Sen- President Bush, that trend reversed course. class with incomes between $50,000 and ator LANDRIEU I make $1 million a year Middle-class incomes continued to fall well $500,000. If you have $500,000 in income, and I agree with her. So I know people into the recovery, and never regained their are listening. I thank those callers. 2001 high. you are quite wealthy in Louisiana, but I realize we are not New York, Con- They make $1 million every year and The report goes on to say—which is necticut, or California. Maybe if you they said, Please, use the money for frightening, which is why I have been make $500,000 or $400,000 in some of somebody else or something else. I am raising my voice in opposition so these places, you don’t consider your- doing fine. I am counting my blessings. strongly to some parts of this pack- self very wealthy or rich. I think by I survived the recession. They know age— Louisiana standards you would be, but that 33,000 people are getting ready to High levels of income inequality may pre- this is a big nation. So I want to be as run out of unemployment benefits in cipitate economic crises. broad as I can possibly be here. I am Louisiana alone if we don’t extend it. In other words, if the middle class not talking about the wealthy being They know middle-class families mak- cannot see light at the end of the tun- $400,000 or $500,000. That may not be the ing over $75,000 in income or $200,000 in nel and if the economy itself cannot case in California. But what we are income or even $500,000—you can have grasp a way for the middle class to talking about in this tax bill is bor- $300,000 of income in Louisiana and be grow, I say to the Senator, this reces- rowing $50 billion to give tax breaks to a strong businessperson and doing very sion may never end no matter how families earning over $1 million. So as well, and have eight children. The Pre- much money you give to the very the Senator from Vermont said, wheth- siding Officer has large families out in wealthy. This is the reality we are fac- er you put your mark at $250,000 or the West. We have very large families ing at this moment—how to end this $500,000—we can disagree about how in the South. No one ever gives us cred- recession. broad the middle class is, but is there it enough, I think, for that. People Republicans weren’t completely to anyone—anyone—anyone in this Cham- work very hard, a mother and a father. blame for it, Democrats weren’t com- ber on either side of the aisle from any Their income might be $200,000, pletely innocent, or vice versa. It is not State who believes seriously, giving $250,000, but with six children, that about who to blame, it is about how to what the Senator from Vermont just doesn’t go that far these days. I grew fix it. We are about to pick up a $980 outlined—which is really not debat- up in a neighborhood where we rou- billion hammer next week in an at- able; these economic studies are not tinely had 12 children in a house. How tempt to fix it. Are we hitting the nail just from one side of the aisle or an- much money do you think you have to right? We don’t have many $980 billion other—that we should actually next make to feed and clothe and send to hammers to pick up. We are borrowing week provide $50 billion in extended college 12 children? My father sent nine this one. So let’s get it right. This is an benefits for the families in America of us to college. We never made any- important issue before our country. I who are making more than $1 million a where near that money. I still think it think that is what the Senator is say- year? Should we do that when the in- was a miracle any of us ever got there. ing. equities are so great, when the needs of But, nonetheless, the issue is next Am I putting words into the Sen- the middle class are so great, when week we are going to debate this agree- ator’s mouth? Is this what the Senator there is no evidence to suggest from ment. I wish to say I support extending is trying to explain? any I have seen that is convincing that tax cuts to the middle class, to the Mr. SANDERS. Exactly. The point even after this tax cut the recession broad middle class. But there is some- cannot be understated. What Senator will end? We are doing this for 2 years. thing terribly wrong here in Denmark. LANDRIEU is saying is that if you have What happens if the recession doesn’t Something is not right in Denmark if a collapsing middle class and people end and we have borrowed all of this we are spending or borrowing $50 bil- are unable to purchase anything, it im- money to provide the extension of lion, which is about what it costs to ex- pacts the entire economy. The econ- these tax cuts, as well as giving $50 bil- tend income tax rates, the lower rate omy can’t grow. We can’t grow jobs if lion to the $1 million earners in this and the dividend rates, and the capital people don’t have enough money to buy country? What do we do then? Go bor- gains rates to people making over $1 products made by other people. If all or row another trillion and try it again? I million. a substantial part of the wealth in this think we have to try something dif- Someone on the radio today said, Nation accrues in the hands of a few, ferent. Well, Senator, don’t you think giving

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00022 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8751 tax cuts will stimulate the economy? I I understand, I say to the Senator What a happy time that was. We were said, No. I am not an economist, but from Vermont, that we can’t have paying for our Pell grants. We were every economist I have read on this tax every package exactly the way we be- paying for education. We were paying package says that is one of the least lieve. I understand that. I have had to for health care. We had surpluses in So- stimulative—am I correct, Senator— vote for some things that were hard for cial Security, the Senator will remem- one of the least stimulative provisions me to stomach, and I have done it be- ber, and we had a $128 billion surplus of the bill. cause there were other good things in that year alone, and surpluses as far as I want to know next week, when we the bill. That is the way the process the eye can see. This is before 9/11. are debating this, I would like at least works. But I actually cannot remember So the 12 of us—let me speak just for one Republican—just one—it could be a time on either an appropriations bill myself—I thought, what a situation the minority leader MITCH MCCONNELL, of this magnitude or a tax bill of this this is. Democrats had taken the tough it could be the budget chairman JUDD magnitude that we have been asked to vote. Not one Republican had voted for GREGG, it could be just one Repub- cast a vote for something that on its this budget reconciliation. As the lican—to give a passionate argument face is so reckless, so unnecessary, so Chair knows, as he was then in the for why they insisted this be in the sort of in your face to the poor, in your House and took a tough vote with the package. I would like to listen to it. I face to the middle class. We are going Democrats to put us on that path, the would like to hear it with my own ears. to take our money. Don’t you say a middle class was expanding. Jobs were What was it about it that they thought word about it. being created. We were creating mil- was so important that they had to have Who said that? Did Warren Buffett lionaires. Yes, I love creating more it in the package? Because I know, as come down here and ask for it? Did millionaires. It is why I got into poli- angry as I am with the President right Boone Pickens come down here and ask tics—one of the reasons. I like when now about some matters, I know the for it? Did the Gateses come down here people are successful. I love to hear President did not insist this be in the and ask for it? Who asked for it? Why stories about my constituents who package. I know enough about him to do you think you deserve it, and what came from poor families, whose moth- know that he didn’t call everybody in Senator put their name on it? ers were household servants, whose fa- the room and say, Oh, we forgot some- I have a few more things to say. I thers never went to high school—I love thing. Let’s make sure this tax exten- don’t want to keep the Senator from to hear about smart little girls from sion includes people making over $1 Vermont tied up. Gert Town who got straight As in million. I know he didn’t give that Mr. SANDERS. Quite the contrary. school, went down the street to Xavier speech. I want to know who did. Who The Senator from Louisiana is making did give it, because your constituents University, got their premed degree, some very important points. I appre- should know about it. And the Amer- and then went on to become a doctor, ciate it and I look forward to hearing ican people have a right to know. That and now they are millionaires. I don’t is one thing about our democracy, it is what she has to say. decry that. I celebrate it. I have fought Ms. LANDRIEU. Thank you. I wish open. It could be more open. We could for them to get their scholarships—not to say a few other things about this be like Britain where they all stand up individually but generally. It is what I and talk at one another in one of the whole situation, because the Senator do. It is what Senators and House rooms. It is very interesting. I find it from Vermont and I agree on some Members do. very interesting to watch sometimes. things and parts of this—obviously this I am so mad at people saying to me, We don’t do that, but at least if the part—but we had a big difference. I as a Democrat, that we don’t like peo- people of Britain want to know what wanted to show this from my perspec- ple who are rich; that we have some- their people are saying, they can hear tive. thing against them. Nothing could be them. I voted for the original tax cuts. I am further from the truth. Somebody said this. I would like to not sure the Senator from Vermont I love the book, ‘‘The Millionaire know who, and where, and when. Was it did. There were very good reasons on Next Door.’’ It talks about how it is a in the Oval Office? Was it in the cloak- both sides. I wish to take a minute, be- myth that most millionaires in Amer- room? Because I am going to be forced cause I have, as I said, critics on both ica have inherited their money. The to vote—because now, I think the Sen- sides, and I want to explain—not ex- fact is, we have created such a great ator understands, we aren’t going to plain, but share some thoughts about country over 250 years. We have actu- have any amendments, so I am going to that and make something very clear. ally found the way for poor people to be forced to vote and have to choose, I was one of 12 Democrats—there are go from nothing to huge wealth and to which is going to be a very tough only 7 of us left—in the Chamber today create a life-changing opportunity for choice, between extending tax cuts for who voted for the Bush tax cuts. We their children and grandchildren. We 84 percent of the people in my State were for the middle class and the poor celebrate it, write movies about it, and who make less than $75,000—which of and the wealthy. Everybody got in- our libraries are full of books about it. course I want to do. Even though we come tax relief, capital gains tax relief, There is nothing wrong with that. have to borrow the money to do it, we dividend tax relief. Senator LINCOLN So when we had a surplus, I thought can’t not do it. The economic cir- and I and others worked very hard to we should give tax breaks and use some cumstances are such that we have to make sure that in that package—even of that money. But, today, we are do it. But now, in order to get them though I would have designed it dif- being asked to provide tax cuts, when help, I have to say yes to something ferently if I could have done it myself, the deficit is—I want to get this num- that I have talked about—and I want to but there are no czars around here. ber correct because it is shocking—10 be serious about this; I am very serious This is a democracy. I understand that. times greater than the surplus; it is about it—that, for me, borders on I have been doing it for 30 years. We $1.294 trillion. That is what the annual moral recklessness. worked hard to shape that package the deficit is this year. When we did the I have been criticized on both sides of best we could to direct it and target it tax cuts, we were generating a $128 bil- this debate. How can you use words to the middle class. There are many lion surplus every year—surpluses as like this? I don’t know. I went to critics of that who say you didn’t do it far as the eye could see. We thought Catholic school. We went to mass al- well enough. You didn’t send it to the maybe we should give a third of this most every week. Every week the middle class. You sent it to the bounty in tax cuts, and we made in- priest would say, Don’t take more than wealthy. I disagree. I think we did as vestments in other things. But, today, you need. Don’t be greedy. Share with well as we could to send it to the mid- after what the Senator from Vermont others. Did I go to the wrong school? dle class, although the higher brackets has described as the economic inequal- So I would like to know. Maybe those were lowered as well. But I will tell my ity in the country, when we have no lessons were missed on the other side. colleagues the big difference was, it surplus in sight, the biggest, largest, I don’t normally speak like this. I have was paid for when we voted for it. most ferocious recession since the been criticized for it. I am very, very There was a $128 billion annual surplus. Great Depression, and we are running torn, because I like to be part of a In other words, we were spending $128 an annual deficit of $1.29 trillion— team. billion less than we were taking in. someone had the nerve on the other

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The Senator So when people say people are in pain Now, for that $50 billion, there are from West Virginia told me that in his and suffering and anxious and they lots of ways that we could save if we State it is 599 people who make over $1 can’t buy anything, you wonder why. could correct this deal. I don’t think million a year. Yet it looks like that is There is no cushion in a recession like we can. But if we could, as the Senator the package. this. How brutal is a recession to peo- knows, do we have men and women in We are going to be in a tough situa- ple who have so little a cushion? For a the military—does he know what their tion, without amendments, having to middle-class family of any race, if you COLA will be this year? I think it is vote for it. I will see what my constitu- lose your job, you can get unemploy- only 1.4 percent. ents are saying over the weekend. I ment, you have some equity in your Mr. SANDERS. That is what my un- want to say one more thing about this home, or maybe you have some savings derstanding is. I think a lot of the inequity and turn it back over to the you can fall back on. There is a cush- folks in the military are very upset Senator from Vermont. Besides the ion, and you can bounce back up. How about that. other things that were put into the brutal is this recession to millions of Ms. LANDRIEU. Every person in uni- RECORD about the inequality, the chal- families in America who have no cush- form is only getting a COLA this year lenges before our country right now, I ion? They are just hitting hard rock. of 1.4 percent. Did anybody over there came across some data, and I would They are hitting steel. There is no not think about this when they raised like the Senator to be on the floor to cushion there. You wonder why people their hand to say let’s give it to mil- listen to this. are angry. You wonder why this tea lionaires? Those in the military most Mr. SANDERS. I am not going any- party movement is festering, why peo- certainly deserve a bonus. They are where. You can take as much time as ple are so angry. I understand that coming back without eyes or legs; they you want. anger. I am so angry myself, I don’t are leaving some of their limbs in Iraq Ms. LANDRIEU. I wasn’t sure what know what to do. and Afghanistan. Did anybody over his time was. I am chair of the Small Mr. SANDERS. If I can interrupt my there think about that? Business Committee. I have many good friend, she is right. It is no great The senior citizens for whom the hearings, but I had one in the last 3 secret that her politics and mine aren’t Senator has been such an advocate are months and some of the testimony was the same on many issues. She is down not seeing the kind of COLA they nor- startling to me. I wanted to share this here speaking from her heart, coming mally get. Talk about stimulus, I think with the Senator. from the State of Louisiana, which is every dollar you give to a senior cit- It is in the 2000 census data. Someone not radically different from Vermont. izen—wouldn’t the Senator say—gets was testifying about why this recession We have a lot of struggling families. spent right away. They have to buy was taking so long to get over. They I want to reiterate a point. She has food with it. They are not going out pe- were giving figures about the status of been talking so effectively about the rusing a yacht or an airplane they the economy and the wealth or in- stress on the middle class and working could or could not buy. They need to comes of broad sections of the popu- families in her State and around the eat. They go to the corner drugstore; lation. They said sort of off the cuff— country. I want to reiterate this point. they need to get their medicine. They like, ho-hum, today is Monday. I am not here to pick on George W. spend it. Yes, we give money to the They said: By the way, the average Bush, but during his 8 years, the poor on the Democratic side and the net worth, the median net worth of wealthiest 400 Americans—pretty high middle class because it is the right households in America, the average— up guys; that ‘‘ain’t’’ the middle class thing to do. It actually happens to be median net worth—not income but net no matter how broadly you define also the smart thing to do for the econ- worth—of households is $67,000. That is that—their income more than dou- omy and for jobs. very interesting. I thought it would be bled—got that—while their income tax So when people say the Senator has higher than that. That is taking what rate dropped almost in half. flip-flopped on taxes, I don’t under- you own minus everything you owe, The wealthiest 400 Americans now stand how to say it differently. I voted and the difference is your net worth. I earn an average of $345 million a year for tax cuts when we had a surplus. I thought people might have more than and pay an effective tax rate of 16.6 am challenged about how to address that in terms of equity in their homes, percent, on average. That is the lowest this package—I most certainly want to a couple hundred thousand. That was tax rate for wealthy individuals on extend it for the middle class and to concerning to me. extend help for the unemployment. I said: Do you have that broken down record. People are unemployed not because by race, by any chance? So the point is, Senator LANDRIEU they are lazy, for Heaven’s sake. They They said: Yes, ma’am. and I are talking about the people out are unemployed because there are no I said: Would you share it? And they in the real world who are working jobs for them. It is some of the longest did. I will share it with you because I longer hours for lower wages. Median term unemployment we have had in have not recovered from what I heard. family income has declined. People are our Nation’s history. The gentlemen said to me: Well, for scared that for the first time in our So the other side is making us feel— White families in America, the average modern history their kids will have a they say: We gave you the unemploy- median—50 percent more, 50 percent lower standard of living than they had. ment, so surely you should give us the less—is $87,000. For Hispanic families, Is the Senator hearing that in Lou- tax breaks for millionaires. Is that it is $8,000. For African-American fami- isiana? really an equal trade? If somebody be- lies, it is $5,000. Ms. LANDRIEU. I am. lieves that actually—I have heard com- I want to repeat that. Fifty percent Mr. SANDERS. Senator LANDRIEU is mentators say it on different networks. of all families in America who are Cau- asking a simple question, and millions I have been on these news programs, casian, their net worth is $67,000 or of people are asking the same question. and they say: You got the unemploy- less. For Hispanic families in America, The wealthiest people are becoming ment, so that is a fair trade. 50 percent of all Hispanic households, much richer, the middle class is declin- If there is a Senator who thinks that, their net worth is $8,000. For African- ing, and poverty is increasing. Who de- I would love them to say that next American families today, in 2010—40 cided? Who said billionaires need an ex- week. I think that would be great to years after the peak of the civil rights tended tax break and a reduction in the have on the record. So this situation is movement and 150 years or so after the estate tax? It is a very simple question what the Louisiana families in my Civil War and all the things we think she is asking. It is a very profound State are facing. Obviously, I would we have done to try to get people in a question because it speaks to what this like to provide tax relief for these fam- more equal position in our society—it country is all about. I didn’t mean to ilies. We have less than 1.8 percent who is $5,000. That is including home eq- interrupt.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8753 Ms. LANDRIEU. I thank the Senator it, such as in the stimulus package, be- seen an explosion in income and wealth from Vermont. I commend to my col- cause in that instance, if we didn’t get to the people on top, while their tax leagues this report entitled ‘‘Income some spending going, we could slip fur- rates have already gone down—that we Inequality and the Great Recession’’ ther into a recession. Even conserv- drive up the national debt and ask our from Senator SCHUMER and the Joint ative economists counseled us on parts kids to pay higher taxes to pay off that Economic Committee. I ask unanimous of the stimulus package. debt in order to give tax breaks to peo- consent that the Executive Summary By the way, contrary to popular ple who don’t need them? That is the be printed in the RECORD. myth, that was about the same size as question Senator LANDRIEU is asking. I There being no objection, the mate- this package. This package is actually think the American people need an an- rial was ordered to be printed in the larger. This package is going to be $900 swer to that, and my hope is that mil- RECORD, as follows: billion. The stimulus was $800-some- lions of Americans will start calling INCOME INEQUALITY AND THE GREAT thing. It was less. But in that stimulus their Senators to ask that question. RECESSION package about a third was tax cuts. Re- Ms. LANDRIEU. Was it your idea? EXECUTIVE SUMMARY member that, Mr. President? A third of Whose idea was it? This week, the U.S. Census Bureau will re- that was tax cuts. It wasn’t all just Mr. SANDERS. Whose idea was it? lease new statistics on income inequality in spending. But every economist—con- The irony here—and I think Senator the United States, allowing for an assess- servative, liberal—said the government LANDRIEU made this point as well—is ment of the impact of the Great Recession has got to step up and spend in this that there are plenty of millionaires on our nation’s income distribution. In prep- economy because this place is shutting out there who say: I don’t need it. I am aration for that data release, the Joint Eco- more worried about the crumbling in- nomic Committee (JEC) analyzed income in- down—meaning the country—and so we equality in the United States in the years did. frastructure or our kids out there than preceding the Great Recession, and found: People will still argue on the other giving me a tax break I don’t need. Income inequality has skyrocketed. Econo- side that was the wrong thing to do and Thanks very much. That is what War- mists concur that income inequality has we shouldn’t have done it. But I am ren Buffett has said. It is what Bill risen dramatically over the past three dec- here to say that without the $2.8 billion Gates has said. Ben Cohen of Ben & ades. in tax cuts and spending that went to Jerry’s has said it. Many millionaires Middle-class incomes stagnated under President Bush. During the recovery of the Louisiana through that stimulus pack- have said it. We are giving some of 1990s under President Clinton, middle-class age—and my State legislature is strug- these guys something they do not even incomes grew at a healthy pace. However, gling to balance the budget, as I speak; want. during the jobless recovery of the 2000s under they have been in the budget com- I want to thank Senator LANDRIEU President Bush, that trend reversed course. mittee over the past couple of weeks— very much, not only for her being here Middle-class incomes continued to fall well I don’t know where we would be today. today—and please continue—but for into the recovery, and never regained their I don’t know how much went to raising these important issues. 2001 high. The first year of the Great Reces- Vermont or California or how much Ms. LANDRIEU. One more point, and sion dealt a sharp blow to middle-class fami- then I will turn this back over to the lies, who had not yet recovered from the pain went to Colorado, but people say it was of the last recession. a failure. Well, let me say that $2.8 bil- Senator. High levels of income inequality may pre- lion went to our State and it warded I was on the Greta Van Susteren cipitate economic crises. Peaks in income in- off some Draconian cuts that our cities show last night. I have said Greta is al- equality preceded both the Great Depression and counties and parishes would have ways a tough interviewer, but she is and the Great Recession, suggesting that had to make, and it warded off tax in- fair, so I am happy to go on her pro- high levels of income inequality may desta- creases so that Governors didn’t have gram. And it was a tough interview. bilize the economy as a whole. But we debated these things, and I Income inequality may be part of the root to raise taxes and mayors didn’t have cause of the Great Recession. Stagnant in- to raise taxes all over this country. think that is important. I think it is comes for all but the wealthiest Americans Some of them have done that, but they important to debate them here, on TV, meant an increased demand for credit, fuel- have tried to limit it because they and in townhall meetings. That is what ing the growth of an unsustainable credit know how fragile this middle class is. democracy is all about. But she said to bubble. Bank deregulation allowed financial I am not unmindful of the impor- me: Senator, we are so frustrated. No- institutions to create new exotic products in tance of providing tax cuts when we body ever hears anybody say they want which the ever-richer rich could invest. The can. But when we are asked to vote on to cut spending, or they want to elimi- result was a bubble-based economy that nate waste, fraud, and abuse. So let me came crashing down in late 2007. a package that has a provision such as Policymakers have a great deal of leverage this, that borders on moral reckless- concede this point. For me, I don’t in mitigating income inequality in order to ness, I have to catch my breath and think we do talk enough about elimi- stabilize the macro-economy. In the decades ask: Whose idea was this? I wish to nating the waste, eliminating the following the Great Depression, policy deci- know. fraud, and eliminating the abuse. I sions helped keep income inequality low It is going to be a long weekend. It think we should spend more time, and while allowing for continued economic will be a long 30 hours of debate. I am I am going to commit myself to that, growth. In contrast, policy decisions made glad the Senator from Vermont is because I know the American people during the economic expansion during the say: Every time we ask for a tax cut, Bush administration failed to keep income going to make sure we take every one inequality in check, and may have exacer- of those 30 hours postcloture, if we you say we can’t afford it. Why don’t bated the problem. Policymakers working to even get to cloture on this bill, because you cut some spending, et cetera. rebuild the economy in the wake of the I think the American people are going Let me state that I voted for tax Great Recession should heed these lessons to be waiting around to find out whose cuts. I am for tax cuts. I have even and pay particular attention to policy op- idea was that. given tax cuts to people who do make tions that mitigate economic inequality. Mr. SANDERS. If I can interrupt the higher than the $75,000 or $100,000 or Ms. LANDRIEU. Mr. President, I Senator from Louisiana, because she $250,000, when we had a surplus, when I want to go back to a point about this makes a very important point, we are a thought it was the fiscally responsible so that I am not misunderstood. I guess democracy and it is the American peo- thing to do. Other people can disagree, no matter what I say critics will take ple who make the decisions. I know she but this is the first time I am being it and do what they will with it, but I shares with me the belief that the asked to provide a tax cut for people am not against tax cuts. I voted for American people have to become en- earning over $1 million with this kind them many times in my life when we gaged in this very important debate, of deficit. had surpluses. I have even been pres- which has a lot to do with the future of But I will say this: I am going to sured to vote for things, and have done this country. commit myself to trying to find places so, when we didn’t have the surpluses, Senator LANDRIEU asks a very simple we can cut. I support the Federal but they were targeted and focused and question, which I would like—and I freeze. I support it in appropriations there actually had been some rational think the American people would this year. Senator INOUYE is taking thought attached to where we might like—an answer to: Whose brilliant down on the appropriations level $8 bil- need to borrow some money and spend idea was it—at a time when we have lion below the President’s budget, and

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00025 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8754 CONGRESSIONAL RECORD — SENATE December 10, 2010 if we need to go even further, perhaps There is no cushion left. There is no one person—I know young people will we can. But we have to be careful surplus left. We are down to below bot- not believe this, but it is true—years where we cut, and I ask people to be ra- tom. So when we do big things such as ago in the United States, before the tional about this. Do you want to cut this—and this is a big thing, this $980 great global economy, before robotics, Pell grants? I looked at this the other billion big package, it is almost $1 tril- before computers, one person could day, I say to the Senator from lion—we need to do it the best way we work 40 hours a week and earn enough Vermont, particularly, because of Clai- can do it. We can’t do it recklessly or money to pay the bills for the family. borne Pell. When the Pell grant went frivolously. We can’t do it for ideology, One person. Today, in Vermont and into effect, it was a grant to help kids for gosh almighty’s sakes. throughout this country, overwhelm- go to school. That is still what it does. I wish we could have fought harder ingly you have husbands and wives But in the 1970s, the Pell grant paid 100 for a better package. I have not yet de- both working. And in some instances percent of the average 2-year college. cided how I am going to vote, but I they are working very long hours. But It only pays 50 percent of that today. I have said if I vote, I am not voting here is the rub: Today, a two-income think I remember it paid almost 60 per- quietly. I may vote yes, I may vote no, family has less disposable income than cent of a 4-year public college. It only but I will vote with a loud voice about a one-income family did 30 years ago pays like 40 percent or less than that what I am concerned about, what I be- because wages have not kept up with today because we have not kept up lieve my constituents are concerned inflation, and because health care costs with it. about, and I will try my best to help have soared, the cost of education has A program such as the Pell grant is a them, to support them, and to make soared, housing has soared, and basic powerful tool to lift the middle class, the best decisions we can next week. necessities have soared. This is a de- or lift the poor out of poverty and ex- But this has been troubling me, and so scription of a country moving in the pand the middle class. So when we cut I wanted to come to the floor and wrong direction. programs, let’s be careful to cut the speak about it, and I thank the Sen- Thirty years ago, a one-income fam- waste, to cut the abuse, but let’s not ator from Vermont. ily had more disposable income than a cut the heart out of what we are argu- I yield the floor. two-income family does today. And ing for—effective tools to expand the Mr. SANDERS. I thank Senator there are a lot of reasons for that. middle class—or we will never get out LANDRIEU very much for coming, and I Maybe we will touch on them a little of this recession. Because I promise think she knows that on many issues bit later. But one of them, in my view, you, the few thousand people in this her views and mine are different, but has to do with our disastrous unfet- country—or few tens of thousands, I on this issue, I believe we are speaking tered free trade policy, which has re- don’t know how many who make more for the overwhelming majority of the sulted in the shutdown of tens of thou- than $1 million a year—are not going people, not just of Louisiana and sands of factories in this country. to lift this country out of a recession. Vermont but all over this country, who Under President Bush alone, we lost It is going to be the middle class. And cannot understand why we give tax some 48,000 factories. We went from 19 if we don’t help them get ahead, if we breaks to billionaires to drive up the million manufacturing jobs to 12 mil- don’t help them get training, this re- deficit and the national debt at a time lion manufacturing jobs, and in many cession will go on for a long time. when the deficit and the debt are so instances, those were good jobs. Mr. SANDERS. I want to add the idea large. I want to thank Senator Where did they go? Some shut down that when we think about cutting back LANDRIEU very much for her very ar- for a variety of reasons. But others on education—whether it is childcare, ticulate and heartfelt statements. I ap- shut down because we have trade laws primary school, or college—we are sim- preciate that very much. that say you have to be a moron not to ply cutting off our noses to spite our Mr. President, I was mentioning a shut down in America because if you go faces. The Senator is aware that where, moment ago the great contrast about to China, go to Vietnam, go to Mexico, at one time in this country, we used to what is happening in our economy be- go to a developing country, you pay lead the world in the number of our tween the people on top and everybody workers there a fraction of what you people who graduated college, we are else. I indicated that the top 400 fami- are paying the workers in America. now falling very significantly. How do lies during the Bush Presidency alone Why wouldn’t you go? Then you bring you become a great economy if you saw their income more than double, at your products right back into this don’t have the scientists, the engi- the same time, by the way, as their in- country. neers, the teachers, the professionals come tax rates dropped almost in half. A couple weeks ago, my wife and I out there, and many other countries So that is what is going on for the peo- did some Christmas shopping. Frank- around the world are having a higher ple on top, who would make out ex- ly—we went to couple stores—it is very percentage of their high school grad- tremely well under this agreement be- hard to find a product manufactured in uates going to college? That is some- tween the President and the Repub- the United States of America. You do thing we have to address. Anyone who lican leadership. not have to have a Ph.D. in economics comes forward and says cut education But I also talked about what is going to understand we are not going to have is moving us in exactly the wrong di- on with the middle class and working a strong economy unless we have a rection. families of this country. If you can be- strong manufacturing capability, un- Ms. LANDRIEU. Exactly. And I am lieve it—and this is quite amazing— less companies are reinvesting in Colo- for more accountability. If some of my since December of 1999—and this was in rado or Vermont, creating good jobs colleagues on the other side think a Washington Post article in January— here. You do not have an economic fu- some of that money is being wasted or there has been a zero net job creation— ture when virtually everything you are we are not getting our bang for the a zero net job creation. Middle-income buying is coming from China or an- buck, don’t come with an across-the- households made less in 2008, when ad- other country. board cut to Pell grants, come with a justed for inflation, than they did in We are not just talking about low- plan to change it, saying these are the 1999, and that number is sure to have end products. These are not sneakers requirements for our universities: You declined further in 2009. or a pair of pants. This is increasingly have to graduate 65 percent of the kids What does that mean? It means that high-tech stuff. We are forfeiting our who start or you have to have certain when you look at a 10-year period—and future as a great economic nation un- benchmarks before you can apply for people work very hard—in many in- less we rebuild our industrial base and these loans or for these grants. stances—actually, in the vast majority unless we create millions and millions This country is at a crossroads, and I of instances—you will have both hus- of jobs producing the goods and the know the President and his advisers bands and wives working and still not products we consume. We cannot con- understand the extraordinary chal- making enough money to pay the bills. tinue to just purchase products from lenges before this country. I hope the In fact, they have less money than the rest of the world. Members understand the economic dan- they used to have. When we talk about the collapse of ger, the minefield we are in here. We When I was a kid growing up, the ex- the middle class, it is important to also can’t make too many mistakes here. perience was that in the middle class recognize the fact, as reported in USA

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8755 Today last September, ‘‘the incomes of large China is and all the American middle class is collapsing, has a lot to the young and middle-aged—especially products they are going to buy over do with these disastrous trade policies. men—have fallen off a cliff since 2000, there to create all kinds of jobs in the I have to tell you, as we have been leaving many age groups poorer than United States. I never believed it for a talking about all day long, these poli- they were even in the 1970s.’’ The point moment. cies, these tax breaks, all this stuff being, for young workers, for example, I will tell you a story. I was in China emanates from corporate leaders whose when we had a manufacturing base in a number of years ago and as part of a sense of responsibility is such that America in the 1940s, 1950s, 1960s, you congressional delegation we went to they want themselves to become rich- could graduate high school and go out visit Walmart in China. The Walmart er, they want more and more profits and get a job in a factory. Was it a store, amazingly enough, looked a lot for their company, but they could care glamorous job? No. Was it a hard job? like Walmart in America—different less about the needs of the American Yes. Was it a dirty job? In some cases. products, but it looked like the same people. But if you worked in manufacturing, style. You walk up and down the aisles I remember there was one CEO of a and especially if you had a union be- and you see all these American prod- large, one of our largest American cor- hind you, the likelihood is you earned ucts. I remember Wilson basketballs, porations, and he said: When I look at wages to take your family into the Procter & Gamble soap products—dif- the future of General Electric, I see middle class, you had decent health ferent products there for the Chinese, China, China, China, and China. By the care coverage, and you might even but a lot of the products were Amer- way, we ended up bailing out that par- have a strong pension. Where are all ican products. They looked pretty fa- ticular corporation. He didn’t look to those jobs now? During the Bush years miliar. China to get bailed out, he looked to alone, we went from 19 million jobs in I asked the guy who was there with the taxpayers of this country. manufacturing to 12 million jobs, a us who was, I believe, the head of But the word has to get out to cor- horrendous loss of manufacturing jobs. Walmart Asia—the guy in charge of all porate America, they are going to have If you are a kid today in Colorado or the Walmarts in Asia—I asked him a to start reinvesting in the United Vermont and you are not of a mind, for simple question: Tell me, how many of States of America. They are going to whatever reason, to go to college—30 or these American company products are have to start building the products and 40 years ago you could go out, get a job actually manufactured in the United the goods the American people need in factory, and make some money. States? rather than run all over in search of Today, what are your options? You can He was a little bit sheepish and a lit- cheap labor. That is an absolute imper- get a minimum wage job at McDonald’s tle bit hesitant and he said: Well, about ative if we are going to turn this econ- or maybe at Walmart, where benefits 1 percent. Obviously, what everybody omy around. are minimal or nonexistent. That is a knew, it is a lot cheaper for the Amer- According to a Boston Globe article significant transition of the American ican companies to set up plants in published last year—let me quote what economy. China, hire Chinese workers at 50 cents they say. Again, I am trying to docu- I wish to tell you something else, an hour, 75 cents an hour, whatever it ment here what is happening to the when we talk about manufacturing. It is, and have them build the product for working class of America because I do did not get a whole lot of publicity, but the Chinese markets than it is to pay not want individual workers, somebody it is worth reporting. The good news is, American workers $15 an hour, $20 an who may be hearing this on the TV, the we have recently seen—after the loss of hour, provide health insurance, deal radio, to say: It is my fault. There is many thousands of jobs in the auto- with the union, deal with the environ- something wrong with me because I mobile industry—we have seen the ment. That is not a great revelation. I can’t go out and get a job. auto companies, Chrysler and others, think anybody could have figured that You are not alone. The entire middle starting to rehire. What I think has not one out. But the big money interests class is collapsing. Our economy is been widely reported is, the wages of around here pushed it and Congress and shedding millions and millions of jobs. the new workers who are being hired President Clinton, at that time, signed I know there are people out there try- are 50 percent of the wages of the older it and we were off and running. ing hard to find work, but that work is workers in the plant. You are going to When we look at why the middle just not there. That is why we have to have workers working side by side, class is in the shape it is—and it is im- rebuild the economy and create jobs. where an older worker who has been portant to make sure everybody under- This is what the Boston Globe said last there for years is making $25, $28 an stands it because one of the things that year: ‘‘The recession has been more hour, and right next to him a new hire happens in this world, it is human na- like a depression for blue-collar work- is making $14 an hour. If you under- ture I suppose, is that people feel very ers. . . .’’ This is an important point to be stand that the automobile industry guilty and responsible if they are not made here. When we talk about the was perhaps the gold standard for man- taking care of their families. Right economy we kind of lump everybody ufacturing in America, what do you now we know, with unemployment so together. That is wrong. The truth is think is going to happen to the wages high—this is not just cold statistics we right now in the economy people on top of blue-collar workers in the future? are throwing out. These are people who If all you can get with a union behind not only were earning an income that are doing very well. The unemploy- you in automobile manufacturing is $14 supported their families, they had a ment rate for upper income people is an hour today, what are you going to sense of worth. Every human being very low. They are doing OK. That as make in Colorado or in Vermont? Are wants to be productive. They want to opposed, as this Boston Globe article you going to make $10 an hour or $11 an produce something. They want to be points out, to what is happening to hour? Is that enough money on which part of something. They want to go to blue collar workers: ‘‘The recession has to raise a family? Are you going to work, earn a paycheck, bring it home. been more like a depression for blue- have any benefits? Unlikely. You feel good about that. collar workers, who are losing jobs That is what happens when your Do you know what it does to some- much more quickly than the nation as manufacturing base disappears and body’s sense of human worth when sud- a whole. . . .’’ that, to a significant degree, in my denly you are sitting home watching This is the working class of America. view, is a result of a disastrous trade the TV, you can’t go out and earn a liv- ‘‘ . . . the Nation’s blue-collar indus- policy. I have to tell you—and I think ing? It destroys people. People be come tries have slashed one in six jobs since in hindsight most people agree I was alcoholic. People commit suicide. Peo- 2007. . . .’’ Let me repeat that. It is just right—when I was in the House and all ple have mental breakdowns because astronomical, a fact. the corporations in the world were tell- they are not utilizing their skills. They . . . the nation’s blue-collar industries [man- ing us how great NAFTA would be, free ufacturing] have slashed one in six jobs since are no longer being a productive mem- 2007, compared with about one in 20 for all trade with Mexico, I did not buy it. I ber of society. That is what unemploy- industries, leaving scores of the unemployed was right. They would say: Oh, it is ment is about. competing for the rare job opening in con- going to be even better. We will have I think one of the reasons unemploy- struction or manufacturing, with many un- free trade with China. Think about how ment is so high, one of the reasons the likely to work in those fields again.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00027 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8756 CONGRESSIONAL RECORD — SENATE December 10, 2010 Never. According to an article in USA the value of their homes, retirement Up to 70 percent of up employed blue-collar Today, from the year 2,000 to 2007, mid- savings, and stocks plummet. workers have lost jobs permanently, mean- dle-class men—women have done bet- I want to say just one word again ing their old jobs won’t be there when the ter—middle-class men experienced an about Wall Street greed because I economy recovers. 11.2-percent drop in their incomes—a think for a variety of reasons we just That is the Boston Globe, last year. reduction of $7,700 after adjusting for do not talk about it enough. What you When we talk about the economy, what inflation. Middle-class women in this had was a situation in which a small we have to do is understand that blue- age group saw a 4.8-percent decline in number of folks at the head of huge fi- collar workers, middle-class, young their incomes as well. So they did pret- nancial institutions, through their workers are hurting very much. In the ty badly, but the men did even worse. greed, through the development of very context, again, of the debate we are So what we are seeing is an under- reckless policies, through illegal be- now having, the discussion of whether standing of why people are angry and havior, through pushing out financial we should approve the agreement why people think this country is mov- instruments which turned out in some reached between the President and the ing in the wrong direction. cases to be worthless—as a result of all Republicans on taxes, the idea of not I think most people understand that of that, they plunged this country into significantly investing in our economy today our country is experiencing the the worst recession we have seen since but, rather, giving tens of billions of worst economic crisis since the Great the Great Depression—from January. dollars to the very rich in more tax Depression of the 1930s. It is important That is at the end of the Bush Adminis- breaks makes no sense to many of us. to say that because, again, it is hard tration. When we talk about why people are enough when you do not have a job, It is very important to understand angry, why people, when asked the when you do not have income, when that the Wall Street crisis took us over question by pollsters: Do you think your dignity and self-respect are de- the wall in terms of precipitating the America is moving in the right direc- clining, but I don’t want people to be severe recession we are in, but we have tion, and overwhelmingly they think banging their own heads against the to remember that during those 8 years, not, let me tell you why they think wall blaming themselves for all of the as I mentioned earlier, the middle class not. This is just during the Presidency problems. Something has gone on in was also shrinking. So it was not: Oh of President Bush from 2001 through the Nation as a whole. You are not in my goodness, everything is going 2008. During that period alone—and by this alone. When we talk about work- great. Then you got the Wall Street the way, the pain is certainly con- ing-class families all across the coun- disaster, and now we are in the midst tinuing right now. I do not mean to try seeing a decline in their income, it of a terrible recession. This trend of a suggest otherwise. During those 8 years is not because people are lazy, it is not middle-class collapse went on long be- of Bush, over 8 million Americans because people do not work hard, it is fore Bush—precipitated significantly slipped out of the middle class and into not because people are not trying to during the Bush years, but it went on poverty. Today, nearly 40 million find jobs. What we have is an economy before as well, not just during the Bush Americans are living in poverty; 7.8 which is rotting in the middle, and we years. million Americans lost their health in- have to change the economy. Over the 8-year period of President surance, and that is continuing. If there is anything we can say about Bush, from 2001 to 2009, we lost 600,000 A recent study came out and suggests the American people, we work hard. private sector jobs. We lost 600,000 pri- that the uninsured now are about 50 We, in fact, work longer hours than do vate sector jobs, and only 1 million net million Americans. Fifty million the people of any other country, indus- new jobs were created, all of them in Americans have no health insurance trialized country, on Earth. We are not the government sector. So for my now. We hope health insurance reform a lazy people. We are a hard-working friends, my Republican colleagues, to will make a dent on that. I think it people. If the jobs are there, people will tell us that we need more tax breaks will. But as of today, without the take them. If people have to work 60 for the very rich because that is going major provisions of health care reform hours a week or 70 hours a week, that to create jobs—that is what trickle- being implemented, 50 million Ameri- is what they will do. But we have to re- down economics is all about—I would cans are without any health insurance. build this economy. We do not need tax say to them: You had your chance. It During that period—and we have not breaks for billionaires. We need to cre- failed. In case you don’t know, losing talked about this a whole lot—there is ate jobs for the middle class of this 600,000 private sector jobs in 8 years is another thing going on in the economy country so that we can put people back not good. That is very, very bad. That for the working class. Years and years to work. is an economic policy that has failed. ago, if you worked in a manufacturing Let me take a few minutes to discuss We don’t need to look at that movie plant, you had a union, you stood a how we got to where we are today and, again. We saw it. It stunk. It was a bad reasonable chance of having a pen- in my view, what policies we need to movie. Bad economic policy. More tax sion—a pension. During the Bush years, move this country forward to create breaks for the rich is not what our 3.2 million workers lost their pensions, the kinds of jobs we desperately need. economy needs. In fact, what every and about half of American workers in Let’s take a quick look back to economist will tell you is that is the the private sector have no pension cov- where we were in January of 2009—it least effective way to create jobs. erage whatsoever. The idea today of seems like a long time ago but just a During the Bush era, median income having a defined pension plan signifi- couple of years ago. That was the last dropped by nearly $2,200. That means cantly paid for by your employer is month of the administration of Presi- that a family in the middle, over an 8- going the way of the dinosaur. That is dent Bush. In that month, we lost over year period, saw their income drop by just not there anymore. 700,000 jobs. That is an absolutely in- $2,200 during the 8 years of Bush. Workers are more and more depend- credible number. In fact, during the I say all of these things just to tell ent on Social Security, which has been last 6 months of the Bush Presidency, you that we are not where we are today there for 75 years, which we have to we lost over 31⁄2 million jobs, all of just because of the Wall Street crisis. protect and demand that it will be which was caused by the greed and That took us over the cliff. That made there another 75 years because right recklessness and illegal behavior on a very bad situation much, much now millions of workers are losing Wall Street. worse. But it has been going on for a their pensions. I mean, I am throwing Our gross domestic product, which is long time. It has gone on before Bush. these statistics out, and the reason I the total sum of all our economy pro- It has gone on after Bush. am doing that is I want people to ap- duces, had gone down by nearly 7 per- During the 8 years of Bush, over 8 preciate that if you are hurting now, cent during the fourth quarter of 2008. million Americans slipped out of the stop being ashamed. It is not, yeah, we That was the biggest decline in more middle class and into poverty. We don’t can all do better. Every one of us can than a quarter century. Some $5 tril- talk about poverty in America any- do better. But you are in an economy lion of America’s wealth evaporated in more. We don’t talk about the home- which is contracting, especially for the a 12-week period, as the people in lessness in America very much any- middle class and working families. Vermont and all over this country saw more. Trust me, it is there. It is three

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8757 blocks away from where I am speaking that after seeing a doubling of their in- People should be mindful of this fact: right now, a very large homeless shel- comes under the Bush years, these peo- The last time that type of income dis- ter. It is in small towns in Vermont ple are in desperate need of another parity took place was in 1928. I think where people tell me that for the first million-dollar-a-year tax break? In we all know what happened in 1929. time they are seeing more and more 2007, the 400 top income earners in this That is the point Senator LANDRIEU families with kids needing emergency country made an average of $345 mil- was making a while back. What she un- shelter because they can’t afford hous- lion in 1 year. That is a pretty piece of derstands, quite correctly, is if work- ing. In Vermont, a lot of people have change. That is the average, $345 mil- ing people, the vast majority of the low-wage jobs making 10 bucks an lion. In terms of wealth, as opposed to people, don’t have the income to spend hour, and it is hard to find a decent income, the wealthiest 400 Americans money to buy products and goods and apartment or pay a mortgage on $10 an saw an increase in their wealth of some services, we can’t create the jobs. If all hour. That is true certainly all over $400 billion during the Bush years. of the money or a big chunk of the this country. Homelessness is going up. Imagine that. During an 8-year period, money ends up with a few people on During the Bush years, nearly 8 mil- the top 400 wealthiest people each saw top, there is a limit to how many lim- lion Americans lost their health insur- an increase, on average, of $1 billion ousines you can have and how many ance. One of the issues I will talk about apiece. Together, these 400 families homes you can have and how many in a little while is health care. It is re- have a collective net of $1.27 trillion. yachts you can have. So when we hit a lated to everything. We are the only Does anybody in America really be- situation where so few have so much, it country in the industrialized world lieve these guys need another tax is not only a moral issue, it is also an that does not guarantee health care to break so that our kids and our grand- economic issue. all people as a right of citizenship. Ac- children can pay more in taxes because A strong and growing middle class cording to Harvard University, 45,000 the national debt has gone up? I do not goes out, spends money, and creates Americans will die this year because think most Americans believe that. jobs. Grossly unequal distribution of they lack health insurance and are not That is why, in my view, most Ameri- income and wealth creates more eco- getting to a doctor when they should. cans are not supporting this agree- nomic shrinkage and loss of jobs be- During the Bush administration, 5 ment. cause people just don’t have the dispos- million manufacturing jobs dis- Let me also say that when we look at able income to go out and buy and cre- appeared, as companies shut down what is going on around the rest of the ate jobs. plants in the United States and moved world, what we have to appreciate is To add insult to injury in terms of to China, Mexico, Vietnam, and other that in the United States today—again, this agreement negotiated by the low-wage countries. As I mentioned this is not something we can be proud President and Republicans, while the earlier, it is profoundly important to of; it is something we have to address— very wealthiest people became much understand what is going on in Amer- we have the most unequal distribution wealthier and the deficit soared—and ica. In 2000, we had over 17,000 manu- of wealth and income of any other under President Bush the national debt facturing jobs in this country. By 2008, country on Earth. almost doubled—what else happened? we had less than 12,000. That is 17,000 to I remember talking not so long ago The tax rates for the very rich went 12,000 in 8 years. That is the loss of 5 to somebody from Scandinavia. I think down. The rich got richer; tax rates million manufacturing jobs—a 29-per- it was Finland. He was saying: Of went down. This was a result not only cent reduction—and the fewest number course, we have rich people in our of the tax breaks for the rich initiated of manufacturing jobs since the begin- country, but there is a level at which during the Bush administration but ning of World War II. they would become embarrassed. also, quite frankly, tax policy that Under President Bush, our trade def- America now has a situation where took place before President Bush. The icit with China more than tripled and the CEOs of large corporations make result is that from 1992 to 2007, from the overall trade deficit nearly dou- 300 times more than their workers. In the latest statistics we have, the effec- bled. many other countries, everybody wants tive Federal tax rate—what people Again, the point I am making now in to be rich, but there is a limit. You really pay—for the top 400 income the context of this agreement is that can’t become a billionaire stepping earners was cut almost in half. So we need agreements now that do not over children sleeping on the street. these cry babies, these multimillion- give tax breaks to millionaires or bil- That is not what this country is sup- aires and billionaires, these people who lionaires, that do not lower the tax posed to be about. Enough should be are making out like bandits, they are rates or the estate tax, which is appli- enough. crying and crying and crying, but the cable only to the top three-tenths of 1 The top 1 percent today earns 23.5 effective tax rate for the top 400 in- percent. We need an agreement that re- percent of all income. In the 1970s, that come earners was cut almost in half builds our infrastructure, rebuilds our number was 8 percent. In the 1990s, it from 1992 to 2007. manufacturing base, and creates the was approximately 16 percent. Now it The point that needs to be made is, millions of good-paying jobs the Amer- is 23.5 percent. So the people on top are when is enough enough? That is the es- ican people desperately want. getting a bigger and bigger chunk of all sence of what we are talking about. Again, I think the point has to be income. Furthermore, it is not only the Greed, in my view, is like a sickness. It made—and I have to make it over and top 1 percent, there are economists is like an addiction. We know people over—that when you look at the econ- who ask: You think the top 1 percent who are on heroin. They can’t stop. omy, it is one thing to say everybody is are doing well? It is really the top one- They destroy their lives. They need hurting. You know, sometimes that tenth of 1 percent. If you can believe more and more heroin. There are peo- happens. A terrible hurricane comes this, the top one-tenth of 1 percent— ple who can’t stop smoking. They have through and knocks down everybody’s and I don’t know how many people that problems with nicotine. They get ad- home. Well, the hurricane that has hit is, you can do the arithmetic, 300 mil- dicted to cigarettes. It costs them their America for the last 10, 20 years has lion into one-tenth of 1 percent—took health. People have problems with not impacted everybody; it has im- in 11 percent of total income, according food. We all have our share of addic- pacted the working class, it has im- to the latest data. One-tenth of 1 per- tions. But I would hope that these peo- pacted the middle class. The people on cent earned 11 percent of all income in ple who are worth hundreds of millions top are doing better than they ever America. of dollars will look around them and were. Our friends on Wall Street whose In the 1970s, the top 1 percent only say: There is something more impor- greed and illegal behavior caused this made something like 8 percent of total tant in life than the richest people be- recession are now making more money income. In the 1980s it rose to 10 to 14 coming richer when we have the high- than they ever did, after being bailed percent. In the late 1990s, it was 15 per- est rate of childhood poverty in the in- out by the middle class of this country. cent to 19 percent. In 2005 it passed 21 dustrialized world. Maybe they will un- During the Bush years, the wealthi- percent. And in 2010, the top 1 percent derstand that they are Americans, part est 400 Americans saw their incomes receive 23 percent of all the income of a great nation which is in trouble more than double. Do you really think earned in this country. today. Maybe they have to go back to

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00029 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8758 CONGRESSIONAL RECORD — SENATE December 10, 2010 the Bible, whatever they believe in, Then we bailed out Wall Street. The According to the American Society and understand there is virtue in shar- original cost was $700 billion. A lot of of Civil Engineers infrastructure report ing, in reaching out; that you can’t get that has been paid back, but there is card—and this is where we should be it all. expense there as well. investing, not tax breaks for the rich— I think this is an issue we have to So we add all these things together, Americans spend 4.2 billion hours a stay on and stay on and stay on. This normal governmental growth, and it year stuck in traffic. Think about that, greed, this reckless, uncontrollable turns out that the Bush administration 4.2 billion hours a year stuck in traffic, greed is almost like a disease which is turned a $236-billion-a-year surplus at a cost of $78 billion a year. Think hurting this country terribly. How can into a $1.3-trillion-a-year deficit. More about all of the pollution, all of the anybody be proud to say they are a or less, that is where we are right now. greenhouse gas emissions, all of the multimillionaire and are getting a In fact, the national debt nearly dou- frustration, all of the anxiety, all of huge tax break and one-quarter of the bled under President Bush, going from the road rage. People are stuck on kids in this country are on food $5.7 trillion to $10.6 trillion in 2009 and roads because our transportation sys- stamps? How can one be proud of that? now we are at $13.7 trillion, borrowing tem is totally inadequate, our roads, I don’t know. huge sums of money from China and our public transportation. It is not only income, it is wealth. other countries in order to maintain She then makes another interesting The top 1 percent owns more wealth our existence. That is where we are. point. When we talk about automobile than the bottom 90 percent. During the Have we been seeing in recent years accidents, what do we usually think? Bush years, the wealthiest 400 Ameri- some improvements in the economy? We think somebody is driving reck- cans saw their wealth increase by some We sure have. There has been some job lessly, maybe they are drunk. Those $400 billion. How much is enough? growth. Nowhere near enough. But we are serious issues. But she writes: In All of these things are related to the are surely not losing 700,000 jobs a year. studying car crashes across the coun- agreement the President and Repub- We are seeing some growth. But we try, the Transportation Construction licans worked out because we are all need to do much better. Coalition determined that badly main- concerned about the national debt and That takes me back to an issue I feel tained or managed roads are respon- deficit. In terms of the Federal budget, strongly about and one on which I want sible for $217 billion a year in car when President Bush first took office, to say a few words. In this agreement crashes, far more than headline-grab- he inherited a $236 billion surplus in the President negotiated with Repub- bing, alcohol-related accidents or 2001 and a projected 10-year surplus of licans, there is a substantial sum of speed-related pileups. $5.6 trillion. That is what Senator money going into various types of busi- In other words, if you want to know LANDRIEU was discussing. But then ness tax breaks. The theory, which has why we are seeing automobile crashes, some things happened. We all know certainly some validity, is that these the issue of bad roads is even more sig- that 9/11 was not his fault, but what business tax breaks will create jobs. nificant than drunk drivers or people happened is, we went to war in Afghan- The problem is that right now, busi- who are reckless drivers. I can remem- istan. We went to war in Iraq. The war nesses, the large corporations at least, ber—I think everybody has the same in Iraq was the fault of President Bush, are sitting on a huge bundle of money story—I was driving on a road in something I certainly did not support, already that they are not spending. Vermont, and, whoops, there was a nor do I think most Americans sup- The reason they are not investing that huge pothole, and the car went into it. ported. The war in Iraq, by the time money is they perceive that working It cost a few hundred dollars to repair our last veteran is taken care of, will families don’t have the money to buy the car. So we are spending as a nation their products and services. probably end up costing us something billions of dollars repairing our cars be- In saying this, I am not alone. I like $3 trillion, adding enormously to cause our roads are not in good shape. think most economists agree there is a When there is a traffic jam, people are our national debt. far more effective way we can create So when we talk about Iraq, it is not emitting all kinds of greenhouse gas jobs rather than just a number of tax only the terrible loss of life that our emissions. You are wasting gas. You breaks going to businesses. I touched soldiers and the Iraqi people have expe- are wasting money. If we invested in on this point before. I want to get into rienced, let’s not forget what it has our transportation system, we could go a little bit more detail. done to the deficit and the national a long way to addressing that. For this I am indebted to a very fine When we talk about transportation— debt. We did not pay for the war in book written by an old friend of mine, and, by the way, again, I bring this Iraq. We just put it on the credit card. Arianna Huffington. The title of her issue up because, in the bill agreed to President Bush gave out $700 billion book is ‘‘Third World America.’’ She in tax cuts for the wealthiest 1 percent by the President and the Republican used that word because basically the leadership, to the best of my knowl- of Americans. Where was the offset? theme of her book is, if we do not get There was none. He gave them tax edge, not one penny—not one penny—is our act together in terms of infrastruc- going into infrastructure, which, to breaks. That is it. It adds to the na- ture, in terms of education, in terms of me, does not make any sense at all. tional debt. health care, that is where we are head- Again, Arianna Huffington writes: The President and Republicans sup- ed. We are headed in the direction of ported a $400 billion Medicare Part D America’s railway system is speeding down being a Third World nation. the tracks in reverse. It is one of the few prescription drug program. I have al- She has an interesting chapter which technologies that has actually regressed over ways believed we need a strong pre- deals with one very important part of the past 80 years. scription drug program for seniors. But what is going on in America, and that Regressed. I am not talking about the program that was passed was writ- is the crumbling of our infrastructure. China, where they are building all ten by the pharmaceutical industry, She writes: these high-speed rail lines. Our rail sit- written by the insurance companies, From 1980 to 2005, the miles traveled by uation in terms of the amount of time and is nowhere near as cost-effective as automobiles increased 94 percent—for trucks it takes to go from location one to lo- it could be. As the President undoubt- mileage increased 105 percent—yet there was cation two has actually gotten longer. edly knows, we are not even negoti- only a 3.5 percent increase in highway lane She writes: ating prescription drug prices with the miles. Tom Vanderbilt of Slate.com— drug companies, a great expense and More and more cars, more and more Which is a very good Web site— great cost to the American people, traveling. We are not building roads. came across some pre-World War II train where drug prices are now much more But you don’t need these numbers to know timetables and made a startling discovery. expensive under Medicare Part D than that our roads are badly congested. Many train rides in the 1930s, 40s, and 50s they are in terms of what the Veterans’ Anybody who lives around Wash- took less time than those journeys would Administration or the Department of ington knows our roads are congested. take today. Defense purchases. So we passed that, It takes hours to get to work some- Can you imagine that? In the 1930s, unpaid for. Great idea. Just another times. 1940s, and 1950s, people were able to get $400 billion prescription drug program You see it and experience it every on a train and get to their destination unpaid for. day. in less time than is the case today.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8759 For instance, in 1934, the Burlington Zeph- done, it is going to have to be done cation Association estimates that it would yr would get you from Chicago to Denver— here at the Federal level. take $322 billion to bring America’s school From Chicago to Denver— I have to say that in Vermont we saw buildings into good repair. in around 13 hours. The same trip takes 18 some significant improvements as a re- I have been in schools in Vermont hours today. sult of the stimulus package. In fact, in and elsewhere which were old and crumbling, and I have been in schools I do not know if the Presiding Office Vermont, recently, we have put more which are new and state of the art. I is familiar with the Burlington Zephyr, money in rebuilding our roads and think anyone who has seen the con- which is a train that goes from Chicago bridges with very good success. I think trast in terms of the attitude of the to Denver, but what this writer is the people of Vermont see the dif- ference. In the last couple years, di- students in those types of schools will pointing out is that in 1934 it took 13 understand it is important to give hours to make that trip. Do you know rectly as a result of the stimulus pack- age, we have made significant improve- these kids good places in which to how long it takes today? It takes 18 learn and to grow. It means a lot to hours. So we are moving in the wrong ments on a number of bridges but no- where near enough. them when they see a building that is direction. new that has state-of-the-art equip- The point I want to make is that I know in Vermont—I do not have ment, as opposed to one that is crum- with our infrastructure collapsing, any statistics right in front of me but bling. It suggests to them what we as a with the American Society of Civil En- I can tell you—I believe very strong- society feel about them. ly—it takes longer to get from the gineers suggesting we need to spend Arianna Huffington writes: $2.2 trillion in the next 5 years just to southern part of the State to the Nothing is quickening our descent into northern part of the State than it used maintain where we are, we have an Third World status faster than our resound- to, and the frequency of the trips is agreement before us which puts zero ing failure to properly educate our children. less than they used to be. dollars in infrastructure. According to This failure has profound consequences for The trip from Chicago to Minneapolis via this book: our future, both at home and as we look to the Olympian Hiawatha, in the 1950s, took We need to invest $850 billion over the next compete with the rest of the world in the global economy. about 41⁄2 hours. Today, via Amtrak’s train, 50 years to get all of America’s bridges into the journey takes more than 8 hours. good shape. She writes: Historically, education has been the great It used to be 41⁄2. So in terms of our Trust me, we are not coming any- public transportation, not only are we where near that right now. equalizer. neglecting, not only are we not moving But it is not just our roads. It is not just That is certainly the case. forward, we are actually moving back- our public transportation. It is not just our That has been the incredible virtue of our wards. bridges. When we talk about infrastructure, public school system— At the moment, the only high-speed train we also have to talk about dams. What we have taken as kids, who in the United States is Amtrak’s Acela, On March 16, 2006, the Ka Loko Dam in spent—my father did not graduate which travels the Washington, New York, Kilauea, Hawaii, collapsed, and seven people from high school. My mother did. That Boston line. died when the Ka Loko Dam breached after was it. weeks of heavy rain, sending 1.6 million tons —and given millions of young people the op- And she writes: of water downstream. portunity to get a good education in school And I use the term ‘‘high-speed’’ very Dams are a vital part of America’s infra- and be able to go to college and use their po- loosely. While in theory the trains have a structure. They help provide for drinking, ir- tential. The springboard to the middle class peak speed of 150 miles per hour, the average rigation, and agriculture, and generate much and beyond has been education. It was a speed on that train is just about 71 miles per needed power, and often offer protection promise we made to all of our people. hour. from floods. Yet our dams are growing old. There are more than 85,000 dams in America, What we as a nation said is, regard- Once again, I read some statistics be- less of your income, we are going to fore, pointing out that China is build- and the average age is 51 years. At the same time, more and more people are moving into provide you with the best possible edu- ing thousands and thousands of miles developments located below dams that re- cation in order to succeed in life. That of high-speed rail. And here in the quire significantly greater safety standards. is something extraordinary, that no United States we are moving back- But we have had a hard time keeping up with matter what your income is, we are wards. It is taking us a longer time for the increase in the so-called high-hazard going to provide you with a great edu- various train rides than used to be the dams. Indeed, we are falling further and fur- cation. As a kid, I went to public ther behind. case. schools, and I did have a very good edu- But it is not just trains. It is not just So the point here is, we have a major cation. our roads. It is not just our bridges. agreement. People are concerned about But something has gone in recent years Well, it is also our bridges. Let me creating jobs. We are investing zero in terribly wrong, and we have slipped further say a word on bridges. I think we all our infrastructure, and dams are a very and further behind many other countries. remember 4 years ago, I think it was, important part of our infrastructure, Among 30 developed countries ranked by the the terrible tragedy in the Minneapolis as are levees. And I suspect Senator Organisation for Economic Co-operation and area, when one of their major bridges LANDRIEU, who was here a little while Development— collapsed and a number of people lost ago, would have something to say That is the OECD— their lives. That got the front-page about levees. the United States ranked 25th in math and headlines all over this country. I know All right. So we are talking about an 21st in science. in Vermont we closed down bridges. infrastructure which is collapsing. We So 25th in math, 21st in science. They are not safe to travel. are talking about China investing far Even the top 10 percent of the American According to the Department of Transpor- more in terms of their GDP into infra- students—our best and brightest—ranked tation, 1 in 4 of America’s bridges is either structure improvement than we are. only 24th in the world in math literacy. structurally deficient or functionally obso- We are talking about being in the There was another study, I think lete. The numbers are even worse when it midst of a major recession, where we probably just a more updated OECD comes to bridges in urban areas, where 1 in desperately want to grow jobs, and yet study, that came out just the other 3 bridges is deficient—no small matter given this proposal does not add one cent day, reported in the New York Times, the high levels of passengers and freight traf- where kids in Shanghai were leading fic in our Nation’s cities. into our infrastructure. Now, again, I am going back to the the world in these types of tests as So a huge amount of traffic—in very good book written by Arianna compared to our own students. They urban areas one in three bridges is defi- Huffington called ‘‘Third World Amer- are studied. They have better schools, cient, and in rural areas such as ica.’’ She writes: better teachers, more investments in Vermont, one in four. their education. And there is a culture How are these bridges going to be re- As bad as America’s sewers, roads, bridges, dams, and water power systems are, they there. There is a culture. It is not fair built? It is likely not going to be done pale in comparison to the crisis we are facing to blame the kids. by local and State governments that in our schools. I am not talking about the Does anyone seriously believe in the right now are experiencing enormous physical state of our dilapidated public United States of America we take in- economic crises. If it is going to be school buildings, although the National Edu- tellectual development seriously? I was

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Is anyone I remember there was a piece in one kind of educated people we need, be- going to suggest in a serious way we of the papers, I think it was in Ohio, cause of the inadequacies of our reward people who become childcare where after the worst of the recession, schools and childcare and so forth— workers or teachers? a lot of layoffs—I think it was Ohio— this almost becomes a national secu- We have childcare workers taking they were beginning to hire workers rity issue, if you like. Seventy-five per- care of little kids—which may be the and these were for sophisticated, high- cent of American youth who apply to most important job in our society be- tech jobs. They brought workers in and the military are ineligible to serve be- cause there is the brain development brought them in and brought them in, cause of low cognitive capacities, that takes place between zero and 3 and they couldn’t come up with the criminal records, or obesity. It gives that has a large part to do with what a number of workers they needed to fill me no pride, no happiness, to bring human being becomes—people leaving the jobs they had. What does that say forth these statistics. But as a nation, early childhood education in order to about our educational system? we are going to have to grasp these move up the economic ladder and get a Data from Alliance for Excellent things. Either we can ignore these job at McDonald’s because pay is so Education, 2009: 1,800 Vermont drop- things, either we can run away from re- low, benefits are so low. What are we outs cost the State $459 million of lost ality, put our heads underneath the doing as a nation? lifetime earnings for the State and carpet, or we can say we are not going She writes: $19.4 million in health care costs. In to allow America to become a Third A National Assessment of Educational other words, what everybody under- World nation, that we are going to turn Progress report found that just 33 percent of stands is if you don’t invest in your this country around. U.S. fourth graders and 32 percent eighth young people, they are not going to be- But we are not going to turn the graders were proficient in reading. come productive, tax-paying workers. country around unless we rethink our Et cetera, et cetera, et cetera. As often as not, they will get involved priorities. One of our priorities cannot So I think her point is that if we are in self-destructive activity—drugs, be more tax breaks for the richest peo- not going to become a Third World na- crime, whatever. They will end up in ple in this country. tion, we have to start investing in this jail, and we end up spending tens of From the 1960s to 2006, the United country—in our physical infrastruc- thousands of dollars keeping them in States fell from first to 18th out of 24 ture, in our human infrastructure, and jail rather than seeing them out there industrialized nations in high school in our educational infrastructure. as productive members of society con- graduation rates. What happens in to- Let me give you some examples of tributing their fair share in taxes. day’s economy if a kid does not grad- what this means in real terms. Today, The Urban Institute says we can re- uate high school? If my memory is cor- unemployment in our country—the of- duce child poverty—which I mentioned rect, about 30 percent of our kids—and ficial unemployment rate is 9.8 per- earlier is the highest in the industri- I know these figures are fuzzy because cent. For those without a high school alized world—by 35 percent if we pro- it is hard to determine who is dropping diploma, it is 15.6 percent, compared to vide childcare subsidies to families out and who is not, but my under- 5.6 percent for college graduates. Mr. with income less than 50 percent of standing is about 30 percent of our kids President, 67 percent of high school State median. drop out of high school. What happens graduates do not have enough of the This is an issue I feel very strongly to those kids? Where do they go? How skills required for success in college about. It is, to me, beyond comprehen- many of them end up in jail? How and the 21st century workforce. sion that in Vermont and throughout many of them do drugs? As a nation, I As many as 170,000 high school grad- this country, it is extremely difficult think we can do a lot better than that. uates each year are prepared to go on for working-class families to find af- We should not have gone from first to to college but cannot afford that. Let fordable, good quality childcare. We 18th out of 24 industrialized nations in me repeat that. About 170,000 young are not back in the 1950s where daddy high school graduation rates. Dropouts people in this country, who graduate went to work and mommy stayed home are eight times more likely to be incar- high school, who want to go to college, taking care of the kids. Mom is at cerated. In other words, when kids fail are unable to do it because they cannot work as well. And we have families all in school, they are going to end up in afford it. over this country—middle-class, work- jail—eight times more likely. Eighty- Are we nuts? What are we doing in ing-class families—saying, I cannot two percent of those in prison are high wasting the extraordinary intellectual find quality childcare. We are uncom- school dropouts. potential of all of these young people? fortable leaving our 2-year-old or 3- I will tell my colleagues a funny ex- What we are saying to them is because year-old. We can’t find childcare at a perience. I was in Burlington last you don’t have the money and because rate we can afford. week. I met this fellow. He came up college is so expensive, and because our In this area, again, we are far behind and was chatting with me. He said, I Federal Government is more busy giv- many other countries around the just got out of jail. What struck me is ing tax breaks to billionaires and fight- world. Kids who do not get intellectu- he was a well educated young man. He ing two wars, we are not investing in ally challenging early childhood edu- was very articulate. I suspect he had you. cation, kids who do not get the emo- gone to college. What struck me is how That makes no sense at all. When tional support they need from zero to 3 rare that is, as the statistics aptly you invest in your kids, you are invest- to 4, will enter school already quite be- demonstrate. The people who end up in ing in the future of America. They are hind other kids. Then, 5 years later, 10 jail overwhelmingly are high school America. And if they are not well edu- years later, they will be dropping out dropouts, people who don’t have the cated, how are they going to become of school and they will be doing drugs education to make it in the world. productive members of society? How and they will be ending up in jail at When we talk about the need to sub- are we going to compete against China great expense. How long does it take us stantially increase funding for early and Europe and other countries around to understand that investing in our childhood education, we should under- the world that are investing in edu- children, our youngest children, is stand that State-funded, pre-K pro- cation? enormously important for our country? grams currently serve 24 percent of 4- Here is something we don’t talk It is a good investment. It is much bet- year-olds and 4 percent of 3-year-olds. about enough: The fastest growing oc- ter to invest in childcare than in keep- In other words, there are millions of cupations are those that require higher ing people locked up in jails. families who would like to see their levels of education and greater tech- Seventy-five percent of American kids be able to access good quality nical competency. So we have a prob- youth who apply to the military are in- childcare but can’t find that in their lem—it is true in Vermont and it is eligible to serve because of low cog- States—again, in contrast to giving tax

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The agreement struck between levels and the health of disadvantaged Fargo—these are the largest banks in the President and the Republican lead- kids. One doesn’t need to be a psychol- America; the CEOs of these banks are ership continues the Bush era 15 per- ogist to understand that. If kids get off already making huge compensation. cent tax rate on capital gains and divi- to a good start in life, if they have the John Stumpf, who is the CEO of Wells dends, meaning those people who make intellectual support, the intellectual Fargo, would receive a $318,000 tax their living off of their investments development, and the emotional sup- break every single year. The CEO of will continue to pay a substantially port, those kids are much more likely Morgan Stanley, John Mack, whose lower tax rate than firemen, teachers, to do well in school, much less likely bank got a $10 billion bailout, would re- and nurses. So if you are a wealthy per- to drop out, much less likely to be a ceive a $926,000 a year tax break. The son and you earn money from divi- burden on society, much less likely to CEO of Aetna, Ronald Williams, would dends—I believe the overwhelming ma- end up in jail, much less likely to do receive a tax break worth $875,000. jority of those capital gains accrue to drugs, et cetera. This is an investment I contrast that, as I did earlier, to the top 1 percent—you are going to be we should be making. the fact that 2 days ago, the Presiding paying a tax on that income of 15 per- I wish to get back for a moment to Officer and I and a total of 53 Members cent, which is less than you pay if you the agreement the President made with of the Senate said, You know, maybe are a fireman, a police officer, a teach- the Republican leadership and why I we should provide a $250 check this er, or a nurse. So what we are doing think it is a bad agreement and why I year to seniors on Social Security and there is extending not only the per- believe we can do much better. The to disabled vets because they haven’t sonal income tax breaks for the very way we are going to improve this gotten a COLA for 2 years—a $250 rich but a host of other taxes as well. agreement is when millions of people check. People making $14,000, $15,000 a On top of all of that—and I know all over this country say, wait a sec- year desperately need a little bit of many of my colleagues have picked up ond. Wait a second. This was an agree- help. We couldn’t get one Republican on this and are extremely upset, and I ment reached behind closed doors. vote. But when it comes to the CEO of think that is one of the reasons the There are Members in the House and a major bank who is already a multi- Democrats in the House just yesterday the Senate who didn’t know about the millionaire—we are talking about $6 said they don’t want to bring this pro- agreement. What about the average million, $7 million, $8 million a year in posal to the floor for a vote—this American out there? I wonder how tax breaks—that is not what we should agreement includes a horrendous pro- many people believe it makes a lot of be doing as a nation. posal regarding the estate tax. sense, with a $13.7 trillion national Furthermore, I know President The estate tax is a proposal Teddy debt, to be giving huge tax breaks to Obama and others have said, Well, let’s Roosevelt talked about in the year the wealthiest people in this country? not worry, because these tax breaks 1906. It was eventually enacted in 1916. I have to tell my colleagues, the calls are just temporary—just temporary. Here is what Teddy Roosevelt said in my office are coming 98, 99 percent They are only going to be given for 2 about this issue in August of 1906—and to 1 against these agreements. People years. I have been in Washington long it is worth repeating this because what think we can do better and our job is to enough to know that when you give a the proposal struck between the Presi- do better. The way we do better is temporary tax break for 2 years, you dent and the Republican leadership when people all over this country stand are, in fact, giving a long-term tax does is lower the estate tax substan- up and say, Wait a minute, Congress. break or maybe even a permanent tax tially. Here is what Teddy Roosevelt Your job is to represent the middle break. Because 2 years from now, the said in 1906: class, to represent our kids, and not to exact same arguments will be made: if The absence of effective State, and, espe- cially, national, restraint upon unfair represent the wealthiest people in this you do away with those tax breaks for money-getting has tended to create a small country. the rich, you are raising taxes. Do you class of enormously wealthy and economi- I mentioned earlier, I think certainly want to raise taxes, a terrible thing to cally powerful men, whose chief object is to one of the major objections to this do? That same argument will be made. hold and increase their power. . . . agreement is that it provides tens of But there is one difference. The dif- This is Teddy Roosevelt, who by then billions of dollars to the wealthiest ference is that when President Obama had served as President of the United people in this country at a time when ran for President and since he has been States. the rich are already doing phenome- President, he has time and time again He continued: nally well and at a time when the come out against those tax breaks. He No man should receive a dollar unless that wealthiest people have already experi- does not believe in them. I believe him, dollar has been fairly earned. Every dollar enced huge tax breaks. I think most and I know that he doesn’t. But if he is received should represent a dollar’s worth of people think that does not make sense. the Democratic candidate for President service rendered—not gambling in stocks, Let me give an example, not to pick on and he says: Reelect me to be President but service rendered. particular individuals—that is not my because in the future I am going to This guy was pretty prophetic back goal—but so we know this. really get rid of these tax breaks, I am in 1910. According to the Citizens for Tax afraid his credibility is not very high He continues: Justice, if the Bush tax breaks for the because that is what he said last time. The really big fortune, the swollen fortune, by the mere fact of its size acquires qualities top 2 percent are extended, these are I guess there is a limit as to how many some of the people who will benefit and which differentiated in kind as well as in de- times you can cry wolf. gree from what is passed by men of rel- what kind of benefits they will receive: (Mr. LEVIN assumed the Chair.) atively small means. Therefore, I believe in Rupert Murdoch, the CEO of News Cor- Mr. SANDERS. If these tax breaks a graduated inheritance tax on big fortunes poration, would receive a $1.3 million for the wealthiest people are extended properly safeguarded against evasion and in- tax break next year. Mr. Murdoch is a for 2 years, there is a strong likelihood creasing rapidly in amount with the size of billionaire. Do we really think he needs they will be extended for many years the estate. that? Jamie Dimon, the head of beyond those 2 and perhaps even per- Wow, Teddy Roosevelt hit the nail on JPMorgan Chase, whose bank got a $29 manently. That brings us back to the the head. That was 100 years ago. He billion bailout from the Federal Re- Bush-era nonsense of believing that tax was worried that a small group of peo- serve, will receive a $1.1 million tax breaks for the rich and trickle-down ple with incredible money would be break. Trust me, Jamie Dimon, the economics are going to help the mid- able to pass that money on, and what head of JPMorgan Chase, is doing just dle-class and working families of this you would create would be an oligar- fine. Vikram Pandit, the CEO of country. chic form of government with a small

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Their dicted, is exactly what is happening. cannot do that, but somehow we can job is to do what the title of the orga- You have a handful of billionaires now afford to give $32.7 billion in tax breaks nization suggests, which is to preserve sitting around deciding how much of to one of the richest families in this Social Security and Medicare. Just the their fortune they are going to invest country. If that makes sense to any- other day, they sent out a news release, in political campaigns all over this body, please call my office. It doesn’t and the title of the news release was country to defeat people like me who make sense to me, and I don’t think it ‘‘Cutting Contributions to Social Secu- are opposed to their agenda and sup- makes sense to the vast majority of rity Signals the Beginning of the End; port other people who are in agreement the American people. Payroll Tax Holiday is Anything But.’’ with it. That is what Roosevelt talked Under this agreement, the estate tax Let me quote from Barbara Kennelly, about. That is exactly what is hap- rate, which was 55 percent under Presi- a former member of Congress, who is pening. dent Clinton, will decline to 35 percent, the president and CEO of the National So what we are looking at in this with an exemption on the first $5 mil- Committee to Preserve Social Security proposal is a situation where the estate lion of an individual’s estate, $10 mil- and Medicare. tax rate, which was 55 percent under lion for couples. Let’s remember again Even though Social Security contributed President Clinton, will decline to 35 that this tax applies only to the top nothing to the current economic crisis, it percent, with an exemption on the first three-tenths of 1 percent of the fami- has been bartered in a deal that provides def- $5 million of an individual’s estate, $10 lies in this country. This is not just a icit-busting tax cuts for the wealthy. Divert- million per couple. Here is the impor- tax break for the rich; it is a tax break ing $120 billion in Social Security contribu- tant point that has to be made. I think for the very, very rich. tions for a so-called tax holiday may sound a lot of people don’t understand this. like a good deal for workers now, but it is Again, this agreement says we are bad business for the program that a majority Certainly, our Republican friends have only going to extend this for 2 years. of middle-class seniors will rely upon in the done a very good job in distorting re- Well, frankly, I doubt that very much. future. ality on this one. There are millions of I suspect that 2 years from now the That, again, is a quote from Barbara Americans who believe that when they same argument will be made. They will Kennelly, President and CEO of the Na- die, their children will have to pay an be extending it. Frankly, our Repub- tional Committee to Preserve Social estate tax. That is absolutely and cat- lican colleagues, representing the rich- Security and Medicare. egorically incorrect. As this chart est people in the world, are hell-bent Mr. President, I think many of us shows, only a tiny fraction of estates on abolishing the estate tax com- should understand where this concept from deaths in 2009 owed any estate pletely. originated. This is not a progressive tax. That number is about .24 percent. Those are some of the reasons I think idea. This is an idea that came from Less than three-tenths of 1 percent of we should be voting against this agree- Republicans and conservatives who American families paid any tax on the ment. want to end Social Security. I want to Third—and this is an issue I have estates they were left. So 99.7 percent read an interesting quote from a gen- been talking about, and I am happy to of American families did not pay one tleman named Bruce Bartlett. Mr. hear there is more discussion about cent in estate taxes. That is the simple Bartlett was a former top adviser to this in the last few days—is the so- truth. The so-called death tax our Re- Presidents Reagan and George H.W. called payroll tax holiday. What that is publican friends talk about a whole lot Bush. This is what he wrote in opposi- about is that this would cut $120 billion is the estate tax, and 99.7 percent of tion to this payroll tax cut. families don’t pay a nickel on it. The in Social Security payroll tax for workers. On the surface, this sounds What are the odds that Republicans will people who do pay are not the rich; ever allow this 1-year tax holiday to expire? they are the very, very rich. like a very good idea because the work- They wrote the Bush tax cuts with explicit Let me give you one example of the er, instead of paying 6.2 percent into expiration dates. Then, when it came time absurdity of lowering the tax rate or, Social Security, pays 4.2 percent. If for the law they wrote to take effect, exactly even worse, ending the estate tax, as you think about it for 2 seconds, you as they wrote it, they said any failure to ex- some of our Republican colleagues really understand that it is not a good tend them permanently would constitute the would like to do. Here is this chart. idea because this is money being di- biggest tax increase in history. One example of what—well, this agree- verted from the Social Security trust So what Mr. Bartlett is saying—and I ment doesn’t do that; it lowers the fund. will go back to his quote in a second— rates. If they were to wipe it out com- Social Security, in my view, has been is what we all know to be true; that pletely, as Republicans want to do, the most successful Federal program in around here, in Congress, if you pro- Walmart owners, Sam Walton’s family, perhaps the history of our country. In vide a tax break for 1 year—in this case the heirs to the Walmart fortune, the last 75 years, whether in good or a payroll tax holiday—a year from which is worth—well, it may be more bad times, Social Security has paid out now, if you restore the old rates— or less now, but it is about $86 billion. every nickel owed to every eligible which are 6.2 percent—our Republican One family is worth $86 billion. They American. Today, Social Security has friends are going to say Democrats are are doing pretty good. If we abolish the a $2.6 trillion surplus. Today, Social raising your taxes. It ‘‘ain’t’’ gonna estate tax, as our Republican friends Security can pay out benefits for the happen. would have us do, the Walton family next 29 years. Our goal, and what we This 1-year extension could well be- alone would receive an estimated $32.7 must do, is make sure we extend it be- come a permanent extension, and if it billion tax break, if the estate tax was yond 29 years, for the next 75 years. becomes a permanent extension, you completely repealed—one family, $32.7 Well, if we divert $120 billion from the are diverting a huge amount of money billion. This is patently insane. This is Social Security trust fund and give it from Social Security and you are insane. Insane. to workers today, what you are doing weakening the entire financial struc- We have the highest rate of childhood is cutting back the viability—the long- ture of Social Security in this country, poverty in the industrialized world. We term viability—of Social Security. which I expect is exactly what some have massive unemployment. I am try- That is not just Bernie Sanders rais- would like to do. ing to get seniors—50-plus million peo- ing this issue. There are many people President Obama says: Well, not to ple—a $250 check, by the way, because representing millions of senior citizens worry. It is only 1 year. Don’t worry, we have not seen a COLA for the last 2 who are deeply concerned about this that 1 year is going to be covered by years for seniors and disabled vets. proposal—this provision in the agree- the Federal Government. That would cost, in 1 year, about $14 ment between the President and the So for the very first time, out of the billion. The Walton family itself would Republican leadership. Treasury Department, money is going

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8763 to come into Social Security, which Unfortunately, this agreement, did not extend unemployment benefits has always been 100 percent dependent, signed by the President and the Repub- for those workers for 13 months. Yet as it should be, on payroll taxes. For licans, doesn’t put one penny into in- the President sees this as a great sign the first time, we are breaking that. frastructure. So if we are serious about of compromise. Around here you do it once and it is creating jobs, if we are serious about I would argue the contrary. I would going to continue. making sure our economy can be com- suggest to you that for the past 40 Barbara Kennelly, the President of petitive in the global economy, we years, under both Democratic and Re- the National Committee to Preserve have to be watching what other coun- publican administrations and under Social Security and Medicare, says: tries are doing, and they are investing Democratic and Republican leadership Cutting these contributions to Social Se- far more than we are. in the Senate or in the House, when- curity signals the beginning of the end. The stimulus package, by the way, ever the unemployment rate has been So we should be very, very, very will help us very much in Vermont in above 7.2 percent, unemployment in- mindful of that. We should not support this area. Right now, if you were to surance has always been extended. In this payroll tax. It is one of the more drive around the State of Vermont— other words, this has been a bipartisan dangerous provisions in this agree- and I think in many other places in policy for 40 years. I don’t want to see ment. this country—and you took out your us seeing and accepting as a really But let me get back now, if I might, cell phone, you would find it very hard great give on the part of Republicans— to what Bruce Bartlett—a former top to make calls in a number of areas of something that they are giving us as adviser for Presidents Reagan and the State. A few months ago, I was lit- part of a compromise—when it has George H.W. Bush—recently wrote: erally a mile and a half away from our been bipartisan policy for 40 years If allowing the Bush tax cuts to expire is State capital in Montpelier, near under Democratic and Republican lead- the biggest tax increase in history—one that Northfield, VT. I could not make a ership. So I don’t accept this as a great Republicans claim would decimate a still telephone call with my cell phone. gift. I think the American people un- fragile economy—then surely the expiration That is true in many parts of Vermont derstand you don’t turn your backs on of a payroll tax holiday would also con- unemployed workers—people who have stitute a massive tax increase on the work- and in many areas of America. We are ing people of America. Republicans would lagging behind many other countries in been unemployed for long periods of prefer to destroy Social Security’s finances terms of the accessibility of cell phone time. You don’t allow those people to or permanently fund it with general reve- service and broadband—and broadband. lose their homes. You don’t force these nues than allow a once-suspended payroll tax So I am happy to say that in people out into the streets. You don’t to be reimposed. Arch Social Security hater Vermont we received a very generous take away what shreds of dignity they Peter Ferrara once told me that funding it grant through the stimulus package have remaining. That is not what you with general revenues was part of his plan to do. That has always been Republican destroy it by converting Social Security into that will help us, and other States did a welfare program rather than an earned the same. But those are areas where we philosophy as well as Democratic phi- benefit. have to invest. You have to invest in losophy. This is not a great gift. So I Once again, that is a quote from broadband and make sure cell phone do not accept this is a compromise. Bruce Bartlett, a former adviser to service is available in rural America— Let me be very clear. As I said ear- President Reagan and the first Presi- all over America. I talked a moment lier, I do believe there are positive dent Bush. So what he is saying is—and ago about our train services. There are parts of this agreement that must be maintained as we move forward toward this is maybe one of the sleeping issues train services today which are worse a better agreement. Let me cite some in this agreement between the Presi- than they were 30 or 40 years ago. It of them that make a lot of sense to me dent and the Republican leadership— takes longer to get from destination A and that I believe we have to retain we may be taking a huge step forward to destination B. China is investing huge sums of money building high- and build on. in destroying the most important pro- The obvious one, in addition to ex- gram in this country—which is Social speed rail at a rate that we could not even dream about. tending unemployment benefits, is we Security—by diverting now $120 billion, have to extend middle-class tax cuts and in the future hundreds and hun- So while in this agreement we do have money for business tax cuts, I do for 98 percent of Americans. As I have dreds of billions of dollars from this been documenting over and over again program so that, in fact, it will not be not think that is the best way to invest taxpayer money if we are serious about today, we are looking at a situation there for our kids and our grand- where the middle class in this country children. creating the jobs that we need. Cor- porate America already is sitting on is collapsing. Under President Bush, Mr. President, the fourth point I the median family income went down close to $2 trillion cash on hand. I don’t want to make in opposition to this by $2,200. People are losing their health know that more tax breaks are going agreement—and one that I have made care. It would be asinine, it would be to help them very much. I think that it before and read a little bit about—is unacceptable if the middle class did is a lot smarter—and I think most that while some of the business taxes not continue to receive the tax breaks in this agreement may work to create economists agree with me—to be in- that were developed in 2001 and 2003. jobs, some of them won’t. The more im- vesting in our infrastructure, both to That, to a large degree, is what this portant point is that economists on create jobs now and to improve our fight is about. We have to extend those both ends of the political spectrum be- competitiveness in years to come. tax breaks to the middle class but not lieve the better way to spur the econ- Further, Mr. President, I want to say tax breaks to the millionaires and bil- omy and to create the millions and a word on this—I mentioned this ear- lionaires. millions of jobs we must create is to re- lier today: President Obama talks Further, there are some other good build our crumbling infrastructure. about this being a compromise agree- provisions in this agreement—the Just a few minutes ago I read ex- ment; you can’t get everything you earned-income tax credit for working cerpts from a very good book by a want. I certainly understand that. But Americans and the child and college friend of mine, Arianna Huffington, en- one of the aspects of the compromise tax credits—and they are very impor- titled ‘‘Third World America.’’ The he points to is an extension of unem- tant. They will keep millions of our purpose of her book was to give us a ployment benefits for 13 months. Well, fellow Americans from slipping out of warning that if we as a nation do not let me be very clear. I think at a time the middle class and into poverty, and get our act together in a variety of when 2 million of our fellow Americans they will allow millions of our fellow ways, including our physical infra- are about to lose their unemployment, citizens to send their kids to college. structure, we are headed down the pike at a time when unemployment is ex- I just talked a moment ago about the to be a Third World nation. traordinarily high—long-term unem- fact that we have over 100,000 families According to the American Society ployment is, I think, higher than at in this country where kids graduate of Civil Engineers, we as a nation need any point on record, with people look- high school wanting to go to college to spend $2.2 trillion in the next 5 years ing for work month after month after but can’t afford to do so. This proposal alone in order to take care of our infra- month and not finding it—it would be will help them do that, and that is structure needs. morally unacceptable if this country right.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00035 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8764 CONGRESSIONAL RECORD — SENATE December 10, 2010 But despite the fact there are some only 2 years. These are not, in my time, I am going to be doing a little good and important provisions in this view, 2 years. If you do them for 2 repetition here. But as I mentioned proposal, when we look at the overall years, the same old argument will be earlier, you have a number of million- package, when we look at a $13.7 tril- back 2 years from now, and we will be aires and some of the richest people in lion national debt and a declining mid- in the midst of a Presidential election. this country who will benefit from dle class, I think what we have to say What our Republican friends will say, these tax breaks. Do you know what is this package just doesn’t do it. It is as sure as I am standing here—and I they are saying? Do you know what just not good enough. am glad we have a gentleman putting Warren Buffett is saying? Do you know The President says he knows how to this in the CONGRESSIONAL RECORD. I what Bill Gates is saying? Do you know count votes. I understand that. He want people to go back to the CONGRES- what Ben Cohen from Ben & Jerry’s is says: Well, you had a couple of votes SIONAL RECORD. I am sure I will be saying? Do you know what many other here to make sure that we would not proven right that 2 years from now our wealthy people are saying? Hey, thanks give tax breaks to millionaires. And Republican friends will come back and very much; I don’t need it. It is more the President has been very clear he they will say: Oh, my word, if you re- important that you invest in our chil- does not want to do that. I understand peal these tax breaks, you are going to dren. It is more important that we pro- that. But he says: What choice do I be raising taxes. We can’t do that. tect working families. We are doing have? What will make the situation even just fine, thanks. Our incomes have I think the answer is that we have to more difficult 2 years from now than soared, our tax rates have gone down, fight this issue. In my view, the solu- today is you have President Obama—if and we don’t need it. In other words, tion ultimately will not be resolved in- he is the Democratic candidate 2 years we have this absurd situation that not side the beltway, in the Senate or in from now, he will say: I don’t believe in only is this bad public policy, we are the House. It will be resolved when mil- these tax breaks for the rich, and I will actually forcing tax breaks on people lions of Americans get on their tele- do my best to repeal them. But his who don’t need them and don’t even phones, get on their computers, and let credibility has been damaged because want them. The richest people in this their Senators and their Members of that is what he said in the last cam- country—Bill Gates, Warren Buffett— the House of Representatives know paign. That is what he has been saying we don’t want it. Here is something else. Here is some- they are profoundly outraged that at a all along. The President does not be- thing else that needs to be understood. time when the rich never had it so lieve in extending these tax breaks for What the Republicans are doing in this good, and when we have a huge na- the wealthy. I know that. Everybody agreement is driving up the national tional debt, this agreement contains knows that. But if he caves in now, who is going to believe he is not going debt. You may think that is not what huge tax breaks for those people who the Republicans really believe in. They don’t need it. That is how we defeat to do the same thing 2 years from now? That is the damage. are supposed to be conservatives. They this. don’t want a high national debt. Why I am not sure that all alone here in Then I think what is even more trou- would they be giving tax breaks to the the debate I am going to turn any of blesome is that once we move down the rich and driving up the national debt? my Republican or even some Demo- path of more tax breaks for the very wealthy, we are accepting the heart There is a rationale. These guys are cratic colleagues around. But I do be- not dumb, and I think they know what lieve that, if people all over this coun- and soul of trickle-down economics, which has been, to my mind, a proven they are doing. Here is what the argu- try stand up and say: Wait a minute, ment is. If you drive up the national how much do the richest people in this disaster, a failure. I remind the lis- teners and my colleagues that these debt and the deficit, you then come country want? I just documented a few tax breaks have been in existence since back to the floor of the Senate and you moments ago that the top 400 wealthi- 2001. They were in existence through- say: You know what, this national debt est people in this country saw a dou- out almost all of President Bush’s ten- and deficit is unsustainable. The only bling of their income under President ure. The end result was that we lost way we can deal with it now is by cut- Bush—a doubling of their income—and 600,000 private sector jobs—lost 600,000 ting, cutting, cutting. We are already tax rates went down. When is enough private sector jobs, the worst job per- beginning to hear how some of those enough? How much do they need? thoughts are going to develop. I think and I would hope, by the way, formance record maybe in the history of this country. Trickle-down econom- There was, as you know, a deficit re- that this is certainly not just a pro- ics does not work. duction commission appointed by the gressive issue. I am a progressive. This Giving tax breaks to billionaires does President. When I heard who was going is a conservative issue. Year after year, not stimulate the economy. Helping to be chairing that commission and I have heard our conservative friends working families and the middle class cochairing it—Alan Simpson, a very telling us: My goodness, we just cannot get decent jobs and tax breaks for peo- nice gentleman but a very conservative continue to raise the national debt; we ple who need the money and are going gentleman who has attacked Social Se- have to do something about this to spend the money is what creates curity for a very long period of time, unsustainable deficit. This agreement jobs, not giving tax breaks to billion- and Erskine Bowles, a conservative grows, increases the national debt. aires who do not need it and who are Democrat—I had serious doubts about What kind of honest conservative can not going to spend it. what was going to come out of that vote to increase the national debt? And Again, the point I want to make here commission. The good news is, they if they do, please, no more lectures is that if people think, oh, this is just needed 14 votes to pass their rec- here on the floor of the Senate. Your temporary, this is just 2 years, I be- ommendations and they didn’t get the hypocrisy will be known to everybody. lieve they are kidding themselves. I be- 14. But a lot of the ideas that Senator Don’t tell us you are concerned about lieve that 2 years from now, the debate Simpson and Mr. Bowles developed are the national debt and give tax breaks will be about extending them or per- going to be filtering around this insti- to billionaires and raise the national haps even making them permanent. tution. debt so our kids and grandchildren in At a time, as I mentioned earlier, What the Republicans will say is that the middle class will have to pay high- where the top 1 percent has seen a huge when you have a huge debt—which er taxes in order to pay off the debt increase in the percentage of income they helped create—we are going to that was caused by you giving tax they earn in this country—going from 8 have to cut. What are we going to have breaks to millionaires. Please, no more percent in the 1970s to 23.5 percent to do? As you recall, that deficit reduc- lectures on that issue. Just say: OK, now—and where the top 1 percent now tion commission recommended a sav- rich people contributed to my cam- earns more income than the bottom 50 age cut—over 20 percent—in Social Se- paign; I have to do what they want. percent, it is totally absurd to be giv- curity benefits for young workers— That will be honest. Please, no more ing tax breaks to people who do not major cuts. There was talk about rais- lectures about your concern about the need them, and it is not good econom- ing the Social Security age up to, I national debt. ics, as well. think, 69. They are talking about cuts Again, I want to reiterate this point. Here is the other irony, as I also in Medicare, cuts in Medicaid, cuts in Everybody says: Don’t worry, these are mentioned earlier—I guess by this education.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00036 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8765 Right now—I think I have docu- needs. I think what is hurting them I think not only have we not ad- mented it a dozen times—it is a horren- more deeply is the kind of future they dressed this issue from an economic dous situation when so many of our are contemplating for their children. perspective the way we should, I have young people cannot afford to go to They are worried that, for the first to tell you, I know that during cam- college, and the others who do go to time in the modern history of America, paigns, a lot of Members of Congress college and graduate end up on average their kids will get jobs that will pay put their 30-second ads on the air say- something like $25,000 in debt. These them lower salaries than what the par- ing how concerned they are about out- guys on the deficit reduction commis- ents have earned. They are worried sourcing and our trade policy. But sion were recommending that the in- that unemployment will be much more somehow, the day after the election, I terest on that debt be accrued while likely for their kids than for them- didn’t hear that discussion resume on students are in college. selves. They are worried that while the floor of the House or the Senate. I Here we have us slipping behind the they were able to scrape through—in want to say this is true not just of Re- rest of the world in terms of our per- my case, I was able to scrape through publicans but of Democrats as well. centage of college graduates, and this college. I borrowed some money, did A lot of Democrats campaign on the recommendation is on young people, some jobs, and made it like millions of need for trade reform, but it does not who do not have a lot of money, who other people. They are worried that happen. In fact, I have been here in the were borrowing money, that they will with the high cost of a college edu- Senate now for almost 4 years. I have have to pay more to go to college. You cation and the reduction in their real not heard one serious—underline ‘‘seri- are going to see it. earnings, they are not going to be able ous’’—discussion to explain how in re- Here is the argument—good, it is to send their kids to college. I have re- cent years we have lost millions and going to be in the CONGRESSIONAL ceived e-mails—and I am sure you millions of manufacturing jobs, when RECORD. Check it out, see if I am right. have, Mr. President—the saddest thing those jobs were the backbone of the The argument will be: The deficit is in the world, where you have parents working class of this country, not pro- going up, the national debt is going up. who are saying: We have saved all of viding only decent wages but decent our lives for the thing we wanted the We have to attack and cut Social Secu- benefits, decent health care, decent most, which was to be able to send our rity, Medicare, Medicaid, veterans pro- pensions. grams. son or daughter to college, and we There was once a time in this coun- This year—Senator LANDRIEU from can’t do that now. That is the overall try when a manufacturing job was a Louisiana made this point a little context this agreement has to be ticket to the middle class. I have to while ago—and I think this is roughly placed within. say something because I remember not The issue is, again and again, the right—our soldiers, men and women in so many years ago, there were national richest people in this country do not the Armed Forces, are going to get a leaders saying: Well—to the young peo- need tax breaks. They are doing phe- 1.8-percent increase in their salaries ple—you do not have to worry about nomenally well. They have already this year, 1.8 percent for people putting that factory work anymore. You do not been given huge amounts of tax breaks. their lives on the line to defend this It is the middle class, it is the working have to be involved in production be- country. A $250 check for 50-plus mil- families, it is the lower income people cause, you know what. All of the jobs lion seniors and disabled vets—we we have to be worrying about and not in the future are going to be nice and couldn’t pass it; too much money—$14 just the wealthy and the powerful. clean in offices and on computers. billion. They are going to come back When we talk about why the middle I think we demeaned and insulted the and cut and cut in the name of trying class is declining, that is a tough issue. people who built the products we con- to deal with the high deficit which I am not here to suggest I know all of sumed. There is nothing wrong with a they are now increasing. That is an the answers. I surely don’t. It is a com- factory job if workers there earn a de- issue we must be addressing. plicated issue. Honest people have dif- cent wage and have a decent benefit. In my view, while there are some ferences of opinion. But let me touch Those are the jobs that built America. good parts of the proposal, it is cer- on a few areas that I think will explain I remember, and we should never for- tainly one that should be significantly why poverty is going up and the middle get—and we now have celebrated the improved. I believe the way it can be class is going down. One of them deals anniversary of Pearl Harbor. There was improved is by the American people be- with our trade policies. a speech that President Roosevelt gave ginning to get involved in the process. I can remember a number of years a day after Pearl Harbor, in a joint ses- I can tell you, as I said earlier, I ago I was in the House of Representa- sion to the Congress, when he declared don’t know how the calls are going tives, and I can remember the lobbyists war on Japan. today in my office because I have been and the big money interests coming I saw a video of that speech. It was a here, but for the last 3 days, we have around and saying: If you guys only remarkable speech because, at that received thousands of phone calls and pass NAFTA, this would create a whole moment, at that moment, the United e-mails, and over 98 percent of them lot of jobs in the United States because States was not only fighting Japan, have been against this proposal. The we would be able to ship products made and we knew the fight with Germany American people believe, the people in in America to Mexico. In fact, as I re- and Nazism was right around the cor- Vermont believe we can do a lot better call—it seems almost humorous now— ner, at that point we were having to job in crafting a proposal that rep- what they said is: If we pass NAFTA, it fight a war on two fronts: in Asia and resents the middle class and our kids would solve the problem of illegal im- in Europe. Hitler was on the march; and not just the wealthiest people in migration because the economy of the Japanese were in China. The Japa- this country. Mexico would be so strong that people nese had just attacked Pearl Harbor. When we talk about this proposal ne- would stay in their own country and Here we were, just about to enter the gotiated by the White House and Re- not try to sneak across the border. war. How could we possibly win that publican leadership, again, it has to be That is, as we look back on it, some- war? put within the broad context of what is what humorous, that that issue was Yet because of the manufacturing ca- going on in America. That context is even discussed. pabilities that we had at that time, and not a pretty picture. That context re- But one of the areas that, unfortu- this is an amazing story, literally in quires us to understand that the mid- nately, for a variety of reasons, we 21⁄2 years the war was essentially won, dle class, which has been the backbone have not dealt with is our disastrous obviously not completed until 1945. But of this country for so very long, is in trade policy. That is NAFTA; that is because of the incredible industrial ca- the process of disappearing. That con- permanent normal trade relations; that pabilities in this country, the ability text makes us understand that millions is trade policies which have encouraged to transform our manufacturing sector of families in this country are worried, large corporations in this country to from a consumer-oriented sector, from parents are worried, not just about send jobs abroad because they can find automobiles into tanks; from shirts their own lives—they are prepared to workers in other countries, in low- into uniforms; from hunting rifles into work 50 or 60 hours a week; they are wage countries, who are prepared to machine guns, within 2 or 3 years we prepared to cut back on their own work for pennies an hour. had essentially won that war. It was an

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00037 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8766 CONGRESSIONAL RECORD — SENATE December 10, 2010 incredible effort on the part of workers to take on some very powerful special This is the guy who was head of Gen- in this country who transformed our interests to turn this whole thing eral Electric before Immelt. He said: economy into an industrial force that around. Ideally, we would have every plant we own was able to supply our soldiers with Today I have devoted a lot of time to on a barge. the weapons that they needed to defeat our national debt, $13.7 trillion, and to Do you remember that quote? He Hitler and the Japanese. our deficit, which is $1.4 trillion. But said: Where are we today in terms of our we cannot ignore our trade deficit. In Ideally, we would have every plant we own manufacturing capabilities? As I men- 2008, our trade deficit was nearly $700 on a barge. tioned earlier, a couple of weeks ago, billion. Last year our trade deficit with What did he mean by that? What he my wife and I went shopping for Christ- China alone was almost $227 billion. In meant by that, if you are on a barge, mas presents, literally, in just a plain other words, we are purchasing a whole you can move your plant to any part of old department store. It is literally lot more products than we are selling. the world where the labor is cheapest. Sometimes I get a kick out of hear- very hard to find a product not manu- So if it gets too expensive in China, ing the defenders of our trade policy factured in China. It is very hard to and you have to pay people 75 cents an talk about all of the products we are find a product, a gift that we could buy hour, you go to Vietnam. If it gets too exporting. Well, yeah, we are exporting that was manufactured in the United expensive in Vietnam, maybe you can a lot, but we are importing a heck of a States of America. go to North Korea and have people I think people understand instinc- lot more. So I think what you have is work under marshal law. I do not tively that this country will not be a a major economic issue. That economic know. major economic player in years to issue is that we are losing millions of But what he was saying is, his goal come if we allow our manufacturing good-paying jobs because of our disas- was to make sure that GE would create base to continue to decline. Again, just trous trade policy. Furthermore, the jobs in those countries in the world under Bush, we went from 17 million jobs we have, on those jobs, we are see- where workers were paid the lowest manufacturing jobs down to 12 million ing a decline in wages and in benefits. possible wage. I think the bottom line of this is not jobs, in 8 years of Bush. How do we sur- Former GE executive vice president just an economic issue, it is a moral vive as a strong industrial power if our Frank Doyle said: manufacturing jobs disappear? issue as well, and that is when compa- Today there are fewer manufacturing nies such as General Electric and all We did a lot of violence to the expectations of the American workforce. We downsized, jobs in this country than there were in the rest—I do not mean to be picking a we delayered, and we outsourced. April of 1941, about 8 months before the lot on General Electric, but I have a He was honest enough to admit that. attack on Pearl Harbor; fewer manu- quote I want to make. This was a few But, again, I do not mean to just pick facturing jobs today than in April of years back. I think it is important be- on Jeff Immelt or General Electric. It 1941. Those manufacturing jobs that cause it applies not just to General is a history of corporations all over are left—that are left—in many cases Electric. But I want people to hear America. pay lower wages, with fewer benefits, this. GE is, of course, one of our major Let me just mention that the CEO of than they did a generation ago. corporations. The manufacturer’s re- Cisco, John Chambers—and this is In other words, we are moving not cent disclosure pointed out, the tax- what he says. You know, we tell the only in a decline in our manufacturing payers of this country, through the young people: The future is in informa- jobs but in the wages our workers earn Fed, provided $16 billion in bailout to tion technology. We want you guys to and the benefits they receive. General Electric during the recent cri- be smart. Learn how to use the com- I raise all of these issues to put this sis. This is what the head, the CEO of puters. You are not going to work in agreement between the President and General Electric, Jeffrey Immelt, said factories. the Republican leadership in a broader in 2002, December 6: This is what the CEO of Cisco, cer- context. Today—and this is just an in- When I am talking to GE managers, I talk credible fact, and it is absolutely China, China, China, China, China. You need tainly one of the large IT companies in frightening to the future of the middle to be there. You need to change the way peo- the United States, said: class in this country—today, entry ple talk about it and how they get there. I China will become the IT center of the level automobile workers at General am a nut on China. Outsourcing from China world. And we can have a healthy discussion about whether that’s in 2020 or 2040. What we Motors and Chrysler now earn half as is going to grow to 5 billion. We are building a tech center in China. Every discussion are trying to do is outline an entire strategy much, half as much as their peers made today has to center on China. The cost basis of becoming a Chinese company. just 1 year ago. Instead of making $28 is extremely attractive. You can take an 18- This was in 2004. an hour, a middle-class wage, they are cubic-foot refrigerator, make it in China, Furthermore— now making $14 an hour. This is in the land it in the United States, and land it for automobile industry which has always less than we can make an 18-cubic-foot re- He says, October 15, 2004—this is been the gold standard for manufac- frigerator today ourselves. Cisco: turing jobs in America. If workers with Gee. A couple of years ago when GE we believe in giving something back and a union in the automobile industry are had some difficult economic times, and truly becoming a Chinese company. making $14 an hour, what do you think they needed $16 billion to bail them Meanwhile, when Cisco needs tax workers in New Mexico are going to be out, I did not hear Mr. Immelt going to breaks, they get it from the taxpayers making without a strong union? China, China, China, China, China. I of the United States of America. Boy, So what you are seeing is a dissolu- did not hear that. I heard Mr. Immelt are they taking us for dummies. They tion of the middle class, wages are going to the taxpayers of the United outsource their jobs to China and so going down, and in this remarkable ex- States for his welfare check. forth. ample, a 50-percent reduction; the older So I say to Mr. Immelt, and I say to In the last campaign, one of the folks workers making good wages, new work- all of those CEOs who have been so who ended up getting a lot more pub- ers half the wages. quick to run to China, that maybe it is licity than he usually does is the presi- Is this the future of America? Is this time to start reinvesting in the United dent and CEO of the U.S. Chamber of what our kids have to look forward to, States of America. But it is not just Commerce, a gentleman named Tom that they are going to be earning half Mr. Immelt. I do not mean to just pick Donohue. the wages their fathers made, that on him. It is all of them. They all see (Mr. UDALL of New Mexico assumed their mothers made? Is that the fu- the future in China, in Vietnam, in the chair.) ture? In the midst of all of that, we run countries where people work for pen- Mr. SANDERS. Again, my point is up a huge national debt, send our jobs nies an hour. not to just pick on individuals. Every to China, and we give tax breaks to Mr. Immelt came to his decision in quote I am giving can be multiplied 50, millionaires? Is that the future these the footsteps of the former CEO of GE, 100 times over. This is what corporate kids have to look forward to? I cer- Jack Welsh. What Jack Welsh was fa- America believes. They believe it is to- tainly hope not. We are going to have mously quoted as saying: tally appropriate to throw American to be tough, and we are going to have Ideally— workers out on the street, move to low-

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00038 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8767 wage countries, China and other coun- moneyed people become implemented color. We have radiologists who are tries, pay people a few cents an hour, in policy which has to do a lot with reading X-rays in India. People behind and bring their products back into the lobbying and campaign contributions. the computer can do work in India as United States. Before I go there, I wish to give some well as here, and these corporate folks Mr. Tom Donohue is the president more examples about how business have taken advantage of that and sold and CEO of the U.S. Chamber of Com- leaders feel about the workers of this out the young people of this country merce. He got a lot of publicity during country and the young people. and the working class. the last election because the Chamber This, again, is a quote. I apologize. It It is virtually impossible to find any- of Commerce became the funnel for a is a few years old, from 2004, January thing in a Walmart or other stores lot of money that went into campaigns 19. This is from Alan Lacy, the CEO of such as that that is made in America around the country. They raised tens Sears Roebuck and Company at the today. This is essentially true for of millions of dollars, a lot of the time: clothing. An increasing amount of money, that was undisclosed. All the There are four or five times as many clothing comes from Bangladesh. rich folks and billionaires gave money smart, driven people in China than there are Today, there are 4,000 garment fac- to the Chamber of Commerce, and they in the United States. And there are another tories in Bangladesh making clothing were able to elect candidates who were four or five, three or four times as many peo- for Walmart, Gap, JC Penney, Levi sympathetic to their point of view. ple in India that are smarter or as smart or Strauss, Tommy Hilfiger, and many Let’s find out what their point of have more drive. And if technology is now others. Garment workers in Ban- view is. This is a quote going back to going to basically reduce location as a bar- rier to competition— gladesh, some 3.5 million of them—and 2004: the number is growing—are among the One job sent overseas, if it happens to be I.e., you have a World Wide Web and lowest paid workers in the world. They my job, is one too many. But the benefit of you can do your work in China or have difficulty buying enough food and offshoring jobs outweighs the cost. India— shelter for their own needs. That was Tom Donohue, president then essentially you have something like, The good news is the minimum wage and CEO of the largest business organi- whatever that was, seven or nine times more in Bangladesh was doubled. It went zation in America. They are in favor of smart, committed people than are now com- from 11.5 cents an hour to 23 cents an peting in this marketplace against certain offshoring American jobs. They think activities. hour. So when you buy your shirt made it is a good idea. They understand that in Bangladesh, you have young women So we are going to see, I think, a if corporations throw American work- there coming in from the countryside huge incentive to ship some of these ers out on the street and go to China who are now paid, because of a dou- more commoditylike knowledge work- and pay people there pennies an hour, bling of the minimum wage, 23 cents an ers’ jobs offshore. it will make more profits. Give them hour. Is that something our people So here we have our blue-collar jobs credit. They are upfront about it. We should be asked to compete against? decimated, and we told the kids not to don’t care about the United States of Should we say to the American worker: worry. You didn’t want to work in the America. We don’t care about young We can get you jobs. We are prepared factory anyhow. We have good informa- people. We don’t care about the future to invest in the United States. We are tion technology, computer-based jobs of this country. The future of the world an American company. You helped for you. But then you have the heads of is in China. make us great. Thank you for the work large corporations saying: Why do I Here is a quote that appeared in one you have done over the years. Thank want American young people to do of the papers: you for purchasing our products. this? I can have Indian young people do U.S. Chamber of Commerce President and Thank you for making go us strong. If it who will work for a fraction of the CEO Thomas Donohue urged American com- you are prepared to work for $1 an wages. We all see this. It is nothing panies to send jobs overseas. hour, $2 an hour, $3 an hour, we will new. You try to get a plane reservation That was in 2004. This is an AP story. come back. U.S. Chamber of Commerce President and and you are talking to somebody in By the way, in the last campaign, CEO Thomas Donohue— India. Please, do not hear me as being what did we hear rumblings of? Abol- This is the head of the largest busi- anti-Indian or anti-Chinese. That is the ishing the minimum wage. The min- ness organization in America. That is furthest thing I would want anyone to imum wage is now $7.25 an hour. There where all these businesses come to- think. We want to work with people all are people out there who say: Look, if gether to develop policy, to lobby us, over the world. But we don’t have to I can hire somebody in China for $2 or to provide campaign contributions— destroy the middle class of this coun- $3 an hour and you want a job in Amer- urged American companies to send jobs over- try to help people around the world. ica and I have to pay you $7.25 an hour, seas. You don’t have to be a corporate CEO why would I want to do that? If we That is really patriotic. That is to sell out your own people who built abolish the minimum wage, I may hire standing up for the United States. your company to run abroad. This Sen- you. ator is not anti-Chinese, far from it, Donohue said Wednesday that exporting What a wonderful prospect for our high-paid tech jobs to low-cost countries anti-Indian, anti-Vietnamese. I guess I young people to think about, working such as India, China, and Russia saves com- plead guilty to being pro-American. for $4 or $5 an hour. panies money. It’s no surprise that Donohue, Maybe that is suspect here. If we want to understand why the who tripled the Chamber of Commerce’s lob- The former CEO of Hewlett-Packard, middle class is collapsing, why unem- bying team since 1997 and aggressively pro- Carly Fiorina, ran for Senator. This is ployment is high, why our manufac- motes pro-business policies, endorses what she said when she was the CEO of turing base has been decimated, why it offshoring. The 3 million member organiza- Hewlett-Packard in 2004: tion, the Chamber of Commerce, the world’s is hard to purchase a product made in largest business consortium, champions tax There is no job that is America’s God-given the United States, it has a lot to do cuts, free trade, workers compensation re- right anymore. with our trade policies, which were form, and more liberal trade policies with I could go on and on and on, but I pushed by people such as Mr. Donohue China. think we have the point. The point is of the Chamber of Commerce and many What more do we need to understand that when things get rough for cor- others. why we have lost millions of good-pay- porate America, as they did recently But it is not just a disastrous trade ing manufacturing jobs, why wages are for General Electric, they run to the policy that has brought us to where we going down? What more do we need taxpayers in order to be bailed out. But are today. The immediate cause of this when the president of the Chamber of their overall philosophy is that their crisis is—and this gets me sick think- Commerce tells us he thinks it is good goal in life is to make as much money ing about it—what the crooks on Wall public policy to send jobs to China? I as they can in any way they can, and, Street have done to the American peo- don’t think there is much we have to therefore, you run to those countries ple. These people fought for a period of discover. They are telling us this. where wages are low. years to deregulate the banking indus- In a moment what I will be talking We are seeing it all the time. It is not try. These people said to us: Well, if about is how these ideas from the big- just blue collar; it is increasingly white you just would do away with Glass-

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00039 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8768 CONGRESSIONAL RECORD — SENATE December 10, 2010 Steagall, if you will just allow finan- at that meeting was: If you need the tutions in this country—hold about $7.4 cial institutions, commercial banks, money, why don’t you go to your trillion in assets, and that is equal to investor banks, insurance companies, if friends and get the money? Why don’t over half the Nation’s estimated total you allow them to merge, do away with you go to all your banker friends and output last year. Four financial insti- these walls which Glass-Steagall, since millionaire friends and billionaires tutions have assets worth more than 52 the Great Depression, established, my friends and get some of that money, percent of our total output last year. God, it will be just terrific. It will be and don’t go to the middle class of this Instead of breaking up these folks, good for the economy, good for the country that has already been harmed. these large institutions, we let them American people, good for our inter- In fact, we brought an amendment to get bigger. In fact, according to Simon national competitiveness. the floor of the Senate, which was one Johnson, the former chief economist of I remember those debates because I of the first amendments I brought as a the International Monetary Fund: was at that point in the House of Rep- Senator, which said that the top 2 per- As a result of the crisis and various gov- resentatives. I was a member of the Fi- cent should pay for the bailout, not the ernment rescue efforts, the largest 6 banks nancial Institutions Committee at that American people. It got defeated on a in our economy now have total assets in ex- point. I was on the committee that voice vote. cess [he claims] of 63 percent of GDP. . . . dealt with that. I remember all the So what happens on Wall Street is we This is a significant increase from even 2006, times Alan Greenspan came before the have seen a tremendous concentration when the same banks’ assets were around 55 committee and Robert Rubin. We had of ownership there, another issue we do percent of GDP. . . . Republicans, Democrats coming before not talk enough about. I know Senator Do you understand what this is the committee and saying: This is what BROWN and Senator Kaufman and I about? Four financial institutions own- you have to do. You have to deregu- worked on a proposal to try to break ing over half the assets of America. late. You have to let these guys merge. up these large financial institutions. I You talk about economic power, you Bigger is better. Against my votes. think we got 30-some-odd votes on talk about political power, that is what Somewhere on the Internet there is a that. We could not do it. we are talking about. discussion I had with Alan Greenspan So what the American people should Simon Johnson continues: This is ‘‘a when he came before our committee. I know now is, while we bailed out Wall complete transformation compared made it very clear to the people of Street, because they were too big to with the situation in the U.S. just 15 Vermont, to him and everybody else, fail, three out of the four largest finan- years ago—when the 6 largest banks that I did not think deregulation was a cial institutions—all of whom were had combined assets of only around 17 good idea, that I thought it would lead bailed out very significantly—are now percent of GDP.’’ to disaster. Someplace in this world larger today than they were before the So 15 years ago, 17 percent, six banks; there is a quote of mine which pretty bailout. today, four banks, and, he claims, 63 much predicts what was going to hap- Incredibly, since the start of the fi- percent of GDP. In other words, over pen. But needless to say, I was one nancial crisis, Wells Fargo has grown the last 15 years, the largest banks in vote. The majority of the Members in 43 percent bigger, JPMorgan Chase has this country have more than tripled in the House and Senate voted to deregu- grown 51 percent bigger, and Bank of size. late. The rest is, unfortunately, his- America is now 138 percent larger than Not only are too-big-to-fail financial tory. before the financial crisis began. institutions bad for taxpayers, the What we saw is people on Wall Street Can you imagine that? We bailed enormous concentration of ownership operating from a business model based these guys out because they were too in the financial sector has led to higher on fraud, based on dishonesty, under- big to fail, and now three out of the bank fees, usurious interest rates on standing that the likelihood of them four largest ones are much larger than credit cards, and fewer choices for con- ever getting caught was small, that if they were. How did that happen? Well, sumers. What do you think happens things got very bad, they would be in 2008, Bank of America—the largest when you have a few institutions, a bailed out by the taxpayers, under- commercial bank in this country— handful of institutions, controlling standing that they are too powerful to which received a $45 billion taxpayer mortgage lending or where people get ever be put in jail, to be indicted, un- bailout, purchased Countrywide, the their credit cards? derstanding that in this country when largest mortgage lender in this coun- Today, these huge financial institu- you are a CEO on Wall Street, you have try, and Merrill Lynch, the largest tions have become so big that accord- so much wealth and so much power and stock brokerage firm in the country. ing to the Washington Post: The four so many lawyers and so many friends That is how Bank of America ex- largest banks in America now issue one in Congress, you could do pretty much panded. They were too big to fail. out of every two mortgages, two out of anything you want and not much is Today they are much bigger. three credit cards, and hold $4 out of going to happen to you—and they did In 2008, JPMorgan Chase, which re- every $10 in bank deposits in the entire it. Their greed and recklessness and ceived a $25 billion bailout from the country. their illegal behavior destroyed this Bush Treasury Department and a $29 If any of these financial institutions economy. billion bridge loan from the Federal were to get into major trouble again, What they did to the American peo- Reserve, acquired Bear Stearns and taxpayers would be on the hook for an- ple is so horrible. Here we had a middle Washington Mutual, the largest sav- other substantial bailout. We cannot class which was already being battered ings and loan in the country. That is allow that to happen. So the whole rea- as a result of trade agreements, loss of how JPMorgan Chase, a huge bank, be- son for the bailout was that if any of manufacturing jobs, health care costs came even bigger. these financial institutions collapsed, going up, couldn’t afford to send their In 2008, the Treasury Department it would take down a significant part children to college—that had gone on provided an $18 billion tax break to of the economy and millions of jobs. for years—and then these guys started Wells Fargo to purchase Wachovia, al- We had to prop them up. We had to bail pushing worthless and complicated fi- lowing that bank to control 11 percent them out. It turns out that since we nancial instruments and the whole of all bank deposits in this country. bailed them out, these handful of finan- thing explodes. And they come crying Hear this because this is quite unbe- cial institutions are now even larger to the taxpayers of America to bail lievable: When we try to understand than they were before and we now them out. what is going on in the economy know they are enjoying very strong I will never forget—never forget— today—the rich getting richer, the poor profits and they are paying their CEOs Hank Paulson coming before the Demo- getting poorer, the middle class col- even more in compensation than they cratic caucus—I am an Independent lapsing—today, after we bailed out all did before the breakdown. and have long been serving as an Inde- these large banks, three out of four of In my view, if we are serious about pendent in Congress—saying that with- them are now much larger than they understanding why the middle class is in a few days he needed $700 billion or were before. Today, Bank of America, collapsing, if we are serious about get- the entire world’s financial system JPMorgan Chase, Citigroup, and Wells ting this economy moving again long would collapse. My suggestion to him Fargo—the four largest financial insti- term, we have to have the courage to

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8769 do exactly what Teddy Roosevelt did years ago, and in many ways, despite cial institutions easily dwarf their purported back in the trust-busting days and the passage of the financial reform bill, social and macroeconomic benefits. break up these banks. The point Roo- we are even more there now. The big, The risk posed by coddling too big to fail sevelt was making was, it is bad for the huge financial institutions we bailed banks is simply too great. economy when a handful of entities out are bigger, more huge today. Winston Churchill said that. He is control industry after industry. They Interestingly enough, on that issue, quoting Mr. Churchill: have a stranglehold on the economy. it is not just progressives such as my- In finance, everything that is agreeable is You have to break them up. Yet I have self who hold that view. There are unsound and everything that is sound is dis- heard very little discussion—I know some pretty conservative folks who are agreeable. there was an amendment from honest conservatives. The concentra- That is from Churchill. SHERROD BROWN and Ted Kaufman, and tion of ownership in a handful of enti- Mr. Fisher continues: I introduced legislation on this issue to ties; is that a conservative proposition? I think the disagreeable but sound thing to start breaking them up. But, frankly, Not in terms of my understanding of do regarding institutions that are too big to their lobbyists and their money are what conservatives are about. I do not fail is to dismantle them over time into in- such that it becomes very difficult to think so. stitutions that can be prudently managed You have at least three Federal Re- and regulated across borders. This should be do that. But that is exactly what we done before the next financial crisis because should be doing. serve Bank presidents who support we now know it surely cannot be done in the The legislation I introduced last breaking up too-big-to-fail banks. middle of a crisis. James Bullard, president and chief ex- year, S. 2746, the Too Big to Fail, Too That is Dallas Fed president Mr. ecutive of the Federal Reserve Bank of Big to Exist Act, would break up these Fisher. Saint Louis; Kansas City Fed president large financial institutions. That legis- They are already in the process of Thomas M. Hoenig; and Dallas Fed lation would require the Secretary of breaking up big banks in England. Ac- president Richard W. Fisher—these Treasury to identify every single finan- cording to the Washington Post: cial institution and insurance company guys do not have my political views. I am a proud progressive. My guess is The British government announced Tues- in this country that is too big to fail day— within 90 days; and after 1 year, the they are conservatives. But anybody Secretary of the Treasury would be re- with an ounce of brains in their head Not this Tuesday, way back last quired to break up these institutions so understands that four large financial year— their failure would not lead to the col- institutions that have assets that are that it will break up parts of major financial lapse of the U.S. or global economies. more than half the GDP of the United institutions bailed out by taxpayers. The I think that is pretty obvious. We States of America places us, A, in a British government, spurred on by European regulators, is forcing the Royal Bank of passed a financial reform bill, which I very dangerous position in terms of too Scotland, Lloyds Banking Group, and North- supported and got a major provision in big to fail, and, B, it is just bad for a ern Rock to sell off parts of their operations. there asking for disclosure at the Fed, competitive economy. Europeans are calling for more and smaller an investigation of conflicts of interest Is there any wonder why people are banks to increase competition and to elimi- at the Fed, and an audit of the Fed dur- paying 25 percent or 30 percent interest nate banks so large that they must be res- ing the financial crisis. But overall, I, rates on their credit cards? That is be- cued by taxpayers, no matter how they con- by no means, think that legislation cause these guys issue two-thirds of ducted their business, in order to avoid dam- went anywhere near far enough. I the credit cards in America. Is there aging the global financial system. think that is a modest piece of legisla- any reason why they were issuing A very interesting development oc- tion and an issue we have to revisit. fraudulent mortgage packages to peo- curred on October 15 of last year. On I worry very much about the future ple? Because there is not the kind of October 15—as I mentioned earlier, because I have a feeling in my stomach competition that should be there. Alan Greenspan, who was the chairman that day is going to come around But this is not just BERNIE SANDERS’ of the Fed before Mr. Bernanke, and I again, when these huge financial insti- point of view. Here is what Kansas City have had our run-ins. Mr. Greenspan, tutions are tottering, when they are Fed President Hoenig said. I am sorry along with Mr. Rubin and others, were going to go running to Washington, I do not have a date on that, but I the chief proponents—Larry Summers and they are going to say: Hey, you think it was fairly recently—last year. in there—were the chief proponents of have to bail us out. In my view, if an This is Kansas City Fed President deregulation of financial institutions, institution is too big to fail, it is too Hoenig: and Mr. Greenspan and I had more than big to exist. Let us break them up so I think they should be broken up. I think a few arguments. But on October 15 of we do not have to go through another there’s no reason why as we’ve done in other last year, Alan Greenspan, who admit- bailout of Wall Street. instances of [sic] finding the right mecha- ted his views on deregulation were Furthermore, I believe when you nism to break them into their components. wrong—and I give the man courage for ... at least admitting he was wrong. He have that kind of concentration of And in doing so, I think you’ll make the fi- ownership—when you have four large nancial system itself more stable. I think did a heck-of-a-lot of damage, but at financial institutions holding half the you will make it more competitive, and I least he had the courage to admit he mortgages in this country, controlling think you will have long-run benefits over was wrong. He was quoted in two-thirds of the credit cards, and our current system, [which] mixes it and Bloomberg News as saying: amassing 40 percent of all deposits— therefore leads to bailouts when crises occur. If they are too big to fail, they are too big. this is not good for a competitive econ- This is Thomas Hoenig, the head of In 1911, we broke up Standard Oil. So what omy. the Kansas City Fed. A very simple happened? The individual parts became more We are supposed to be living in free statement. He is absolutely right. valuable than the whole. market capitalism, real competition. But—and I am going to get to the rea- Maybe that’s what we need to do. This is not free market competition. son why in a little while—we have not Alan Greenspan, the architect of de- This is a huge concentration of owner- been able to do this. We have not been regulation, citing the fact that in 1911 ship, where a few people have enormous able to do this because Wall Street we broke up Standard Oil. So here we power over the economy, and with sends their lobbyists down here in have Greenspan, who helped cause this their wealth, the political life of this droves and Wall Street provides crisis, at least having the courage to country. zillions of dollars in campaign con- understand that now is the time to No single financial institution should tributions and Wall Street fights like begin breaking up these big financial be so large that its failure would cause the dickens to make sure that any institutions. They have enormous catastrophic risk to millions of Amer- strong provisions that some of us power over our economy. They have ican jobs or to our Nation’s economic might bring up are defeated. Here is enormous power over our political life. well-being. No single financial institu- what the President of the Dallas Fed, Their lobbyists are all over this place. tion should have holdings so extensive Mr. Fisher, said: You can’t walk down the hall without that its failure could send the world’s [B]ased on my experience at the Fed . . . bumping into some of their lobbyists. economy into crisis. We were there 2 the marginal costs of too-big-to-fail finan- So we have to start breaking them up

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00041 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8770 CONGRESSIONAL RECORD — SENATE December 10, 2010 and the American people have to be Wall Street banks should be split up, and So the Fed lent out billions and bil- prepared for a major fight to take on soon. lions of dollars to the largest financial these huge financial institutions. We have a lot of people, some con- institutions and offered it at less than Former Fed Chairman Paul Volcker, servatives, some progressives, who are 1 percent. That is American taxpayer who has advised the Obama adminis- saying the same thing. If we are going money—large corporations, less than 1 tration, supports breaking up big to rebuild the middle class, the way to percent. banks so they no longer pose systemic do that is, among other things, to But if you are a worker today and risk to the entire economy. change our disastrous trade policies, to you are having hard times—maybe you According to a recent article in the make it clear to corporate America are unemployed—you are going to pay New York Times, Volcker said: that they cannot continue to sell out 25 or 30 percent interest rates on your People say I’m old-fashioned and banks can the workers of this country by moving credit card, and sometimes more. You no longer be separated from nonbank activ- to China and other low-wage countries. have this Payday Lending where people ity. That argument brought us to where we We also have to have a much more are today. are paying outrageous sums of money. competitive economy, one in which all I think that is immoral. I think we Paul Volcker. I couldn’t agree more. large financial institutions do not own That is what I am talking about. We have to stop it, and it disturbs me very assets of more than half of the GDP of much that especially at a time when have to start breaking up four finan- this country. cial institutions which led us into the we bailed out these large financial in- On that point, I find it very inter- stitutions they are still able to charge economic disaster we are in right now esting that it is not just progressives that remain much too big to fail, that our people 25 or 30 percent. People who such as myself or Robert Reich, but we have bailed them out get hit the second we are going to have to bail out again have some conservative bankers—peo- and again and again, and that today time around by having to pay 25 to 30 ple who are heading Fed banks around percent interest rates. have a stranglehold on our economy. this country—who are saying pretty The New York Times says under Right now, it is not even 25 or 30 per- much the same thing. cent. As a matter of fact, the tenth Volcker’s plan: Also, when we talk about banks, I largest credit card issuer in this coun- JPMorganChase would have to give up wish to get back to a point I raised ear- try, an entity called Premier Bank, is their trading operations acquired from Bear lier. This is an issue I have been work- Stearns. Bank of America and Merrill Lynch now offering a credit card with a 79.9- ing on for years and years, and this is would go back to being separate companies. percent interest rate and a $300 credit the issue of usury. I mentioned earlier, Goldman Sachs could no longer be a bank limit. What do we make of that? The if you read the religious tenents of the holding company. tenth largest credit card issuer in this major religions throughout history, That is exactly what needs to be hap- country is charging 79 percent interest whether it is Christianity, Judaism, pening. rates, and we allow that to go on. Islam, and others, what you find is al- I come from a small State. We have These are crooks. These are no dif- most universal objection and disgust community banks. Here is the irony: ferent than the gangsters who beat up and a feeling of immorality in terms of The banks in Vermont, in the midst of people on street corners when they usury. When we talked about usury in all of this financial disaster, did just didn’t get payment back, except now the United States, what we usually fine. They are small, locally owned the gangsters are wearing three-piece talked about were thugs, gangsters banks. They know the people they lend suits and sitting in some fancy suite on working on street corners who lent out money to. The CEOs are not making Wall Street. hundreds of millions of dollars in prof- money at outrageously high interest rates to workers, and when that money Today, over one-quarter of all credit it. They know their community. They card holders in this country are now know what loans made sense. Now, I was not repaid back at the interest rates asked for, the thugs would beat paying interest rates above 20 percent may be old-fashioned like Mr. Volcker, and, as I indicated, as high as 79 per- but I think that is what banking is up the workers. In fact, I am thinking now about the cent. Let’s be clear. When credit card about: to lend out money to people in companies charge over 20 percent inter- the productive economy, to the busi- first movie of Rocky. I don’t know if the Presiding Officer saw the first est on credit cards, they are not en- ness community, who can use the gaged in the business of making credit money to expand and create jobs; to movie of Rocky with Sylvester Stallone, but before he became a suc- available. What they are involved in is homeowners who need that money to extortion and loan sharking—nothing buy a home, not to be living in your cessful fighter and the heavyweight champion of the world, that is what he essentially different than gangsters, own world engaged in a huge gambling except they dress a lot better. That is casino producing and selling worthless was: a big tough guy who beat up peo- ple who did not pay back the gangsters all it is. It is thievery and we tolerate products nobody understands. it, and we bail them out. The function of a bank is to be a mid- the high interest rates they were ask- dleman between people who need ing for. It is interesting in terms of these money and are producing real products Well, the world has changed. Now the high interest rates because for many and helping them get that money and people who are committing usury are years we have had States, including people who are investing in the banks. not the gangsters on street corners all the State of Vermont, saying: You are It is not supposed to be an island to over America. Their place has been not going to charge outrageously high itself. But in recent years what we taken by the CEOs of Wall Street fi- interest rates. For example, estab- have seen, incredibly, is that 40 percent nancial institutions who are lending lishing a usury law is not a radical con- of all profit in America went to the fi- out money to desperate Americans at cept, which is what we have to move nancial institutions with a small num- 25 or 30 percent interest rates. That, toward. We have to put a cap on inter- ber of people working there, relatively my friends, is called usury, and accord- est rates. In fact, between 1978 and small. They got 40 percent of the prof- ing to every religion on Earth, that is today, over 20 States in America had its because they live in a world that is immoral. What you are doing is going laws capping credit card interest rates. a huge gambling casino. up to people who are desperate, people In Alabama, the legal maximum We need financial institutions to go who are hurting, and you are saying: amount of interest is 8 percent; in back to the way banking used to be, You desperately need money, we are Alaska, it is 10.5 percent; in Arizona, it where the job of banks was to provide going to give you money, but there is a is 10 percent; in Idaho, 12 percent; Kan- affordable loans to the productive string attached. You are going to be sas, 15 percent; the State of Vermont, economy so we can produce real prod- charged an outrageous amount of in- my own State, the legal maximum in- ucts, real goods, and we can create real terest on that money. terest rate is 12 percent. But what hap- jobs when we do that. So here is the irony: The people who pened is all of those State interest rate Robert Reich, President Clinton’s are hurting the most pay the highest caps disappeared under the 1978 U.S. former Labor Secretary, said: interest rates. The people who need the Supreme Court decision known as the No important public interest is served by money the least are paying the lowest Marquette case, which allowed banks allowing giant banks to grow too big to fail. interest rates. to charge whatever interest rates they

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8771 wanted if they moved to a State with- health insurance, there is a gap be- I did this last year. I sent that e-mail out an interest rate law such as South tween the rich and everybody else, out to my constituents in Vermont, Dakota or Delaware. manufacturing is collapsing, and jobs and I said: Write back to me. Tell me So all of these companies moved to are going all over the world—China, in your own words what is going on in South Dakota. They moved to Dela- Mexico, India. We have to start pro- your lives. I cannot remember how ware. No interest rates. And they tecting the middle class of this coun- many we received, but there were hun- charged the people in Vermont or Ha- try. dreds and hundreds of responses. It waii or anyplace else 35 percent inter- There are a number of things we have quite amazed me. Frankly, it was hard est rates. to do. I think one simple thing we have to read these letters from decent, good So getting back to the original agree- to do is tell the crooks on Wall people about what was happening in ment—which I strongly disagree with— Street—and I use that word advisedly— their lives. that the President and the Republican history will prove that they knew what What I said to them was this: If it is leadership agreed to, I think that they were doing. They were dishonest. OK with you, we will publish what you agreement significantly helps the The business model is fraudulent. have written. We won’t use your upper income people by lowering the There are honest people who occasion- names, of course. I don’t want to em- tax rates for millionaires and billion- ally make a mistake, but there are barrass anybody. We will read some of aires, by lowering the interest rate on other businesses that are based on these stories on the floor of the Senate. the estate tax, and by providing some fraud and assume they are never going That is what I did. I didn’t read them business loans which are not the kinds to get caught. When they do get all, but I read some of them because it of investments that can best create caught, the penalty they have to pay is is important for us sitting here inside jobs. so little that it is worth it because the beltway not to forget what is going (The PRESIDENT pro tempore as- they end up getting caught 1 out of 10 on in the real world, whether it is Ha- sumed the chair.) times, but they make a whole lot of waii, Vermont, California, or anyplace. Here are letters from two mothers in One of the things we have to do to money, and then they pay a fine and Vermont. First is from a woman in a protect the middle class today is have somebody goes to jail—very rarely, rural area. The second is from a single a cap on interest rates because other- though—for a year. That is what you mother in a small city. In Vermont, wise people are getting a paycheck and are seeing on Wall Street. I think if it has worked very well for frankly, we don’t have too many big then going into debt and paying 25, 30 the credit unions, it can work for the cities. In my very beautiful State, percent on their interest rates, with private banks as well. where I expect the weather is very cold the money going to a handful of banks Mr. President, in the financial reform today, our largest city is all of 40,000 on Wall Street. bill, did we address this issue? Yes, we people. That is Burlington, VT, and I I have introduced legislation to put a did, and no, we didn’t. We said the was honored to have been the mayor of cap on interest rates, and it is not a credit card companies have to be clear- that city for 8 years. Certainly, the radical idea. Right now, credit unions er and more honest about their interest vast majority of our people live in in this country, by law, are not allowed rates and how much borrowing money towns of less than 1,000, and there are to charge more than 15 percent, except will actually cost because before they towns of 500. For a while, I lived in a under extraordinary circumstances. By would say: You will get a zero interest town called Stanton, up in the North- and large, that has worked for about 30 rate or a 2-percent interest rate, but east Kingdom of Vermont, which has years. So if you get a credit card most people didn’t read the small print probably 150 people in it, and that is through a credit union, you are going on page 4 that said they could raise in- not uncommon in Vermont. There are to be paying in almost every case no terest rates at any time. a lot of small towns. more than 15 percent. That was devel- We have made some progress on at Here are the two letters. oped by Federal law. least them being honest with the A woman in the rural area says: Do you know what. I have talked to American people about what their My husband and I have lived in Vermont the credit union people in Vermont and credit card costs will be, but that is our whole lives. We have two small children, all over the country. Credit unions are not enough. What we have to do is put a baby and a toddler, and have felt fortunate doing just fine. They are not the ones a cap on interest rates. It has worked to own our own house and land. But due to the increasing fuel prices, we have at times that came begging the American tax- for the credit unions. I believe it can payer for a huge bailout. So for 30 had to choose between baby food and diapers and should work for the big banks as and heating fuel. years they have survived just fine on a well. In Vermont, heating fuel gets up 15-percent cap. But our friends on Wall Mr. President, what I want to do now there when the weather gets 20 below Street who caused this recession, our is just give you some examples about— zero. It is an expensive proposition. friends on Wall Street who needed a you know, sometimes here—and I am Continuing: welfare check from the American peo- guilty of it as well—we talk in big We have run out of heating fuel three ple in order to survive, who today are numbers—a billion here and a trillion times so far, and the baby has ended up in earning more money than they did be- there—and it adds up. But I think it is the hospital with pneumonia two of the fore the bailout—we don’t have any cap also important to look at the flesh and times. We tried to keep the kids warm with on the interest rates they can charge. blood that is out there, the real suf- an electric space heater on those nights, but In my view, if the credit unions have fering people are experiencing. that just doesn’t do the trick. My husband survived and survived well with a 15- A while back, what I did was I sent does what he can just to scrape enough percent maximum interest rate cap— an e-mail out to people in Vermont. It money for car fuel each week, and we have was a very simple e-mail. It said: Tell gone from three vehicles to one just to try to the most they can charge—and it get by without going further into debt. We worked for credit unions, it can work me in your own words what is going on were going to sell the house and rent, but the for the private banks as well. That is in your family. What is going on in rent around here is higher than what we pay what we have to do. your lives, in the midst of this terrible for our mortgage and property taxes com- According to a recent article—this is recession? bined. Please help. a year ago—in the Los Angeles Times: Again, it is important. Yes, we know That is what she asked of me and her Chris Collver, legislative and regulatory unemployment is 9.8 percent and the government—‘‘Please help.’’ She didn’t analyst for the California Credit Union real unemployment is 16 percent, 50 ask me to lower taxes for billionaires. League, said that a rate cap hasn’t hurt busi- million people don’t have any health She is speaking for tens of millions of ness for nearly 400 credit unions represented insurance, median family income has people in this country who are in des- by his organization. ‘‘It hasn’t been an gone down, poverty has gone up, and 25 perate need of help. issue,’’ he said. ‘‘Credit unions are still able percent of our kids are on food stamps. Here is another letter that came to thrive.’’ It is important to know that stuff. But from a woman who lives in a larger Here is my point. The middle class is behind all of those statistics is flesh town: hurting. Unemployment is out- and blood and good people who are I am a single mother with a 9-year-old boy. rageously high, poverty is increasing, doing everything they can to survive We lived this past winter without any heat there are 50 million people with no with a shred of dignity in their lives. at all.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8772 CONGRESSIONAL RECORD — SENATE December 10, 2010 That is not a good position to be in and go visit him. However, I am finding it Vermont is better off today than a in Vermont in the winter. hard to save enough money to add to the number of States around this country. Fortunately, someone gave me an old wood extra gas I will need to get there. I am self- You have these stories, and multiply stove. I had to hook it up to an old unused employed with my own commercial cleaning them by 10 in every area of this coun- chimney we had in the kitchen. I couldn’t service and money is tight, not only with gas prices but with everything. I make more try. even afford a chimney liner. The price of lin- Here is another story: ers went up with the price of fuel. To stay than I did a year ago, and I don’t have enough to pay my property taxes this quar- Yesterday, I paid for our latest home heat- warm at night, my son and I would pull off ing fuel delivery— all the pillows from the couch and pile them ter for the first time in many years. They on the kitchen floor. I would hang a blanket are due tomorrow. Again, I am focusing now on the cost from the kitchen doorway, and we would Here is another letter that I think of fuel because in Vermont, where I sleep right there on the floor. By February, deserves to be read. Mr. President, I come from, it is a big deal. So she we ran out of wood, and I burned my moth- think it would not hurt this body if writes: er’s dining room furniture. I have no oil for every Member of the Senate—I know Yesterday, I paid for our latest home fuel hot water. We boil our water on the stove we all get letters like this—came down heating delivery—$1,100. I also paid my and pour it into the tub. I would like to here and spent a couple of days talking $2,000-plus credit card balance, much of order one of your flags and hang it upside which bought gas and groceries for the down at the Capitol building. We are cer- about what is going on with working month. tainly a country in distress. families in this country. Spouting sta- The point here, and then I will con- Mr. President, what I will without tistics is good, and dealing with tax tinue her letter, is that a lot of people doubt assure you is that those stories, deals of $900 billion is fine, but I think use their credit cards not just as a nice in different forms—and I know it is dif- we should reacquaint ourselves with and convenient way of not having to ferent in big cities than in a rural the reality of life in America today. use cash—when I go shopping, I am State such as Vermont, and I know it This is what another constituent of going to use my credit card and I will is different in Hawaii, where the Chair mine writes: pay it off at the end of the month. comes from, than in Boston, MA. But I My husband and I are retired and 65 years What a nice thing. No, people are using am absolutely sure that millions of of age. We would have liked to work longer, their credit cards to buy food, to buy but because of injuries caused at work and people in one way or another are tell- the closing of our factory to go to Canada, gas, and to buy the basic necessities of ing the same story. These are great we chose to retire early. Now, with oil prices life. It is their only line of credit open. Americans, people who want to work the way they are, we cannot afford to heat And then, as I mentioned earlier, they and do the best they can by their kids. our home unless my husband cuts and splits are charged 25 or 30 percent interest They are simply not making it right wood, which is a real hardship as he has had rates on what they owe. now. his back fused and should not be working She continues: This is the United States of America, most of the day to keep up with the wood. My husband and I are very nervous about in 2010, and people are going cold. Peo- Not only that, he has to get up two or three what will happen to us when we are old. Al- ple don’t have enough food. People are times each night to keep the fire going. though we have three jobs between us and homeless. My friends here are talking In other words, what she is talking participate in 403(b) retirement plans, we have not saved enough for a realistic post about huge tax breaks for billionaires. about, is that in Vermont a lot of peo- ple heat with wood—increasingly with worklife if we survive to our life expectancy. My friends here are talking about low- As we approach the traditional retirement ering rates on the estate tax for the pellets, an important source of fuel in age, we are slowly paying off our daughter’s top three-tenths of 1 percent of the the State of Vermont. What she is college tuition loan and trying to keep our American people. What are we talking talking about is her husband, who is 65, heads above water. We have always lived fru- about? What kinds of priorities are with a bad back, has to go out and cut gally. We buy used cars and store brand gro- those? wood, and in their case, his being old, ceries, recycle everything, walk or car pool, he has to get up two or three times a when possible, and plastic our windows each Here is another letter from Vermont. fall. This is not a woman in desperation. night to stoke the furnace that is keep- What that means is that, in Vermont, Those folks I just read from are. This ing the house warm. Again, I would re- if you don’t have good storm windows, woman says: mind people that in Vermont it occa- sionally gets 20 or 30 below zero. you put up plastic. It is a way to keep As a couple with one child, earning about the wind out and keep the home warm. $55,000 a year [which is, in Vermont, fairly She continues: decent] we have been able to eat out a bit, We also have a 2003 car that we only get to I know about that because I used to do buy groceries and health insurance, con- drive to get groceries or go to the doctor or that. tribute to our retirement funds, and live a to visit my mother in the nursing home Even so, if and when our son decides to at- relatively comfortable life financially. We three miles away. It now costs us $80 a tend college, we will be in deep debt at age have never accumulated a lot of savings, but month to go nowhere. We have 42,000 miles 65. Please— our bills were always paid on time, and we on a 5-year-old car. And here she ends this. never had any interest on our credit card. They can’t afford to even use the car. P.S. Please don’t use my name. I live in a Over the last year, even though we have I don’t know what the price of gas is in small town, and this is so embarrassing. tightened our belts, not eating out much, So embarrassing. We should be em- watching purchases at the grocery store, not Hawaii, Mr. President, but in Vermont buying extras like a new TV, and repairing it is now over $3 a gallon. A lot of peo- barrassed, not her. We should be em- the washer instead of buying a new one— ple in my State have to travel long dis- barrassed that we are for one second doing all those things, we find ourselves with tances to get to work. Their cars need talking about a proposal which gives over $7,000 of credit card debt and are trying repairs. Cars break down. Cars require, tax breaks to billionaires while we are to figure out how to pay for braces for our in Vermont, compulsory insurance. ignoring the needs of working families, son. I work 50 hours per week to help earn They have to spend a whole lot of low-income people, and the middle extra money to catch up. But that also takes money just getting to work. I think we class. We should be embarrassed that a toll on the family life. Not spending those we are not investing in our infrastruc- 10 hours at home with my husband and son forget about that here. We don’t need makes a big difference for all of us. My hus- tax breaks for billionaires, we need to ture, that we are not breaking up these band hasn’t had a raise in 3 years and his em- pay attention to these people. large financial institutions, that we ployer is looking to cut out any extra bene- She continues and concludes: are not putting a cap on interest rates, fits they can to lower their expenses, which I have Medicare, but I can’t afford pre- that we are the only country in the will increase ours. scription coverage unless I take my money world that does not have health care How many millions of Americans do out of an annuity, which is supposed to cover for all of our people—of major coun- you think are saying exactly the same the house payment when my husband’s pen- tries. We should be embarrassed, not thing? sion is gone. We only eat two meals a day to this wonderful woman who is trying to Let me read another story that conserve. maintain her dignity. comes from Vermont. This is not some Third World coun- Another letter from the State of My 90-year-old father in Connecticut has try. This is the United States of Vermont. recently become ill and asked me to visit Vermont—the United States of Amer- I too have been struggling to overcome the him. I want to drop everything I am doing ica, my State of Vermont, and increasing cost of gas, heating oil, food,

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00044 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8773 taxes, et cetera. I have to say that this is the house to enroll him in a school that had cur- who can’t afford to drive to church on toughest year financially that I have ever riculum available for his special needs. After Sunday because they can’t afford the experienced in my 41 years on this Earth. I 2 years on the market, my house never sold. price of a gallon of gas. Maybe we have what used to be considered a decent job. The property taxes have nearly doubled in 10 should remember who sent us here and I work hard, pinch my pennies, but the pen- years. nies have all but dried up. I am thankful who made this country. Let me pick up on that point. We She writes: that my employer understands that many of don’t deal with property taxes here—I us cannot afford to drive to work 5 days a I am making $10 an hour, and if I am lucky week. Instead, I work 3 15-hour days. I have did when I was a mayor—but if we are I get 35 hours a week of work. At this time, taken odd jobs to try to make ends meet. not adequately funding education, if we I am only getting 20 hours, as it is off season This winter, after keeping the heat just high do not adequately help cities and towns in Stowe. enough to keep my pipes from bursting— all over this country in terms of fire Stowe, VT, is a beautiful town. I One of the problems you have, when protection and in terms of police pro- hope everybody comes to visit us up you live in a rural State and it gets tection and housing, a lot of that bur- there. There is great skiing, but it is a cold, your pipes can burst, and then den falls on the very regressive prop- resort town. Big time in the winter. We you have to spend a fortune getting erty tax, which in my State of are doing better in the summer, but it them repaired. Vermont is very high. And you find it is a resort town. Resorts get more busi- She continues: referred to time and time again that ness in the winter than summer and The bedrooms are not heated and never go property taxes are going up. Property less time elsewhere. above 30 degrees. taxes are going up. So what she is talking about is that it is off season up there and she is only What happens in Vermont, if you She writes: Property taxes have nearly doubled in 10 getting 20 hours a week of work at $10 have a home, in the wintertime, and an hour. you don’t have a whole lot of money, years. And the oil to heat is prohibitive. To meet the needs of my son, I have left the She writes: you kind of close off rooms in the house sit and moved into an apartment near It does not take a mathematician to do the house because you can’t afford to heat his high school. I don’t go to church many figures. the whole house. So people live in a Sundays because the gasoline is too expen- I am sorry, this is a man, not a smaller area. sive to drive there. woman. She continues: Imagine: She doesn’t go to church on How are my wife and I supposed to live on I began selling off my woodworking tools, Sundays because the gasoline is too ex- a monthly take-home income of less than snow blower, pennies on the dollar, and fur- pensive to drive there. $800 a month? We do it by spending our hard- niture that had been handed down in my Every thought of an activity is dependent earned retirement savings. I am 50 and my family from the early 1800s just to keep the wife is 49. At the rate we are going, we will heat on. Today, I am sad, broken and very upon the cost. I can only purchase food from dented can stores. be destitute in just a few years. The situa- discouraged. I am thankful the winter cold is tion is so dire it is all that I can think about. behind us for a while but now gas prices are Does anybody in this Congress know Soon I will have to start walking to work— arising yet again. I just can’t keep up. what a dented can store is? Do you an 8-mile round trip—because the price of en- That is the story from one person in know that many people buy their gro- ergy is so high that it is either that or going Vermont. But that is the story for mil- ceries and they get them cheaper be- without heat. lions and millions of Americans. cause the cans are dented? Most Mem- This is a 50-year-old guy, making $10 Another story. And the reason I am bers of the Senate and the House, most an hour, 20 or 30 hours a week, and his reading these stories—and I appreciate Governors do not get their meals from choice is either walking 8 miles to and my staff bringing this booklet down dented cans, but huge numbers of from his job in Stowe or else not heat- here—is this puts flesh and blood and Americans do. ing his home. And this happens in real life into the statistics. The statis- She then concludes: Vermont all of the time. It is quite un- tics are frightening enough, but this I am stretched to the breaking point with believable. He says: tells us what happens when the middle no help in sight. As bad as our situation is, I know many in class of this country collapses. It tells By the way, the letters that I re- worse shape. We try to donate food when we us what happens when people lose de- do our weekly shopping, but now we are not ceived, when I asked for letters, came able to even afford to help our neighbors eat. cent-paying jobs. It tells us what hap- not just from the State of Vermont— What has this country come to? pens when the government does not most came from Vermont but some I don’t know about other parts of the provide the kind of basic support sys- came from other areas. I will read an- country. I am sure it is the same. But tem that it should for people in need. other from Vermont and then one from if you go to a grocery store, there is Here is another letter: rural Pennsylvania. often a bin out there in front where As a single parent, I am struggling every This one from Vermont: people buy food and they drop a can of day to put food on the table. Due to illness, my ability to work has been peas or a can of corn or something into Mr. President, this is the United severely limited. I am making $10 an hour, it. Here is a guy who is now faced with States of America and people are talk- and if I am lucky, I get 35 hours a week of the reality of having to walk 8 miles to work. ing, in my State of Vermont and all and from work and he is upset at him- over the country, about struggling to Let me pull away from the letter. self that he does not have the money to put food on the table. What comes to That is not an unusual wage in the buy food for his neighbors who he my mind now—and I don’t know if you State of Vermont. That is not an un- thinks are even worse off than he is. saw them, Mr. President—are some ar- usual wage all over America. That is That is the good people of Vermont and ticles in the paper that talked about what people earn, $10 an hour, times 40 America. They are all over this coun- because of the bailing out of Wall hours. He doesn’t get 40 hours. He try, good and decent people who do Street, and the fact that Wall Street is makes $350 a week. Ten times 40, 400, worry about their neighbors. now again profitable, these executives times 50, $21,000 a year. Shock of all Then you have the lobbyists here rep- there are now making more money shocks, that is reality. That is what resenting the largest corporations in than they made before the bailout, and people are trying to live on. Those are the world where the CEOs make tens of they go into restaurants and they pay the people that we should be helping, millions of dollars a year and their job thousands of dollars for a bottle of not the CEOs on Wall Street who will is to squeeze the middle class and these wine, pay hundreds and hundreds of get $1 million a year in a tax break if families harder and harder, cut back on dollars for some fancy dinner. Yet in this deal goes through. Not the people their benefits in order to give tax my State and all over this country who are in the top three-tenths of 1 breaks to the richest people in this there are people who are wondering percent, who our Republican friends country. What a difference in attitude: where their next meal is coming from. want to help by repealing the estate A poor man faced with the choice of ei- She continues: tax, which will cost us $1 trillion in 10 ther walking 8 miles to and from his Our clothing all comes from thrift stores. I years. Maybe we should concentrate on job or losing his heat, worried about have a 5-year-old car that needs work. My helping people who are trying to get by his neighbors, and you have the lobby- son is gifted and talented. I tried to sell my eating food from dented cans or people ists here worrying about the richest

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00045 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8774 CONGRESSIONAL RECORD — SENATE December 10, 2010 people in the world—and winning. And They take something out of you to we can win this thing. We can win this winning. hear people you know, good people, battle. It is not too late yet. That is Then I got a letter that comes not honest people—I hear from some of my what I hope will happen. from Vermont, it comes from rural colleagues here that people are lazy. When we talk about why things go on Pennsylvania: My God, people work so hard in the the way they are here in Washington, I am 55 years old and worse off than my State of Vermont. We have I don’t and why so many people back home— adult children. I have worked since age 16. I know how many thousands of people whether they are Democrats, Repub- don’t live from paycheck to paycheck, I live are not working just two or three jobs, licans, Independent—whether they are day to day. I can only afford to fill my gas they work four jobs. It is all over this conservatives, progressives, moderates, tank on my payday. Thereafter I put $5, $10, country. Whatever you say about the whatever they are—there is a huge whatever that I can. I cannot afford to buy feeling of anger and frustration and, in the food items that I would. I am riding United States of America, the people of around daily, to and from work, with a quar- our country are not lazy. That is one fact, disgust at what goes on here in ter of a tank of gas. This is very scary. I can thing you can say about them. Washington. see myself working until the day that I die. In fact, according to all of the blood- I have just read some letters from Trust me, the gentleman is talking less statistics, our people today work people. You can multiply those letters about getting older, worrying about longer hours than do the people of any by 1 million. People are saying: Don’t working until the day he dies. We are other major country on Earth. Did you you hear us? Don’t you know what is already seeing this. You go to grocery know that? I don’t know that a lot of going on in our lives? Don’t you know stores in Vermont and you see old peo- Americans know that. It used to be the worries we have for our kids, for ple, who should be sitting home with Japan. The Japanese are a very hard- our parents? Aren’t you listening to their grandchildren. Do you know what working people. Now it turns out that us? In many ways I am afraid the Senate they are doing? They are packing gro- our people work harder, longer hours is not listening to them, nor is the ceries. Then we have some geniuses on than do the people of any other coun- House, nor is our Government. What this deficit reduction commission, peo- try in the industrialized world. worries me so much about this growing ple who made their money on Wall When you think about that, when I concentration of wealth and income in Street, they have a brilliant idea: Let’s think about the books that I read when this country is that when the rich get raise the Social Security age to 68, 69 I was in elementary school—I remem- richer, they don’t just simply put their years old so that people like this will ber there were pictures up there. I money under the mattress. They don’t have to work, in fact, to the day they don’t know if you remember these pic- simply go out and buy yachts and die. tures. There were pictures where work- planes and 18 homes and all the things He continues. This is not from ers were demonstrating, and they said: rich people do. They do that, but they Vermont. This is from Pennsylvania: We want a 40-hour workweek. Do you remember seeing those pictures? We do something else. I do not have savings, no credit cards and want a 40-hour workweek. That was They say: I am not rich enough. I my only resources are through my employ- need to be richer. What motivates some ment. I have to drive to work as there are no back in the early 1900s. buses from my residence to work. I don’t Today, 100 years later, people still of these people is greed and greed and know how much longer I can do this. I am want a 40-hour workweek because they more greed. There is no end to it. So concerned as gas prices climb daily. I am are forced to work 50 or 60 hours a what they do is they do things like hire just tired. The harder that I work the harder week. They are working two jobs. They lobbyists—who are all over Capitol it gets. I work 12 to 14 hours daily and it just are working three jobs. Hill. These lobbyists, sometimes doesn’t help. What I want to do now, before I get former leaders of the Republican I am not saying every person in back to why I am on the Senate floor Party, former leaders of the Demo- America is experiencing these stories. today, and why I have been here for a cratic Party, former hotshot lawyers, They are not. A lot of people are doing few hours—which is to say the agree- bright people, their job is to make sure fine. They have good jobs. Their kids ment negotiated by the President and the legislation we pass—such as this are doing well. They are taking care of the Republican leadership is not a good major tax bill—that this legislation their parents. A lot of people are doing agreement. It is an agreement that we benefits not ordinary Americans, not just fine. But we would be fools and can improve upon. It is an agreement the people whose letters I have just dishonest not to understand the reality the American people can improve upon. read, not those people, but the wealthi- of what is going on in this country. It But what I am asking the American est people in this country and the larg- breaks my heart, and I know it breaks people to do is to stand up, let your est corporations. the hearts of millions of people in this Senators, let your Congressman know I want to just mention something. A country, to see what is going on in this how you feel. very good friend of mine and I do a great Nation of ours: that so many peo- Do you really believe millionaires radio show every Friday afternoon—I ple are hurting, that so many parents— and billionaires who have done phe- am afraid I missed it today—Tom Hart- I don’t know if I have that letter or if nomenally well in recent years need an man. Tom is the author of a number of it is in another booklet. I will never extended tax cut at a time when their wonderful books. forget one letter I received, and that is taxes have been lowered substantially In his latest book, which is called these people—my parents never went in recent years? Do we really need to ‘‘Rebooting the American Dream, 11 to college. My father never graduated give tax breaks to the rich in order to Ways to Rebuild Our Country,’’ Tom high school. They wanted their kids to drive up the national debt so our kids writes and he talks about lobbying, get an education; that is what they and grandchildren will pay higher which is an issue we have to deal with wanted—and we did. It was very impor- taxes in order to pay off that national in this country. He says, on page 104: tant, and how proud my mother was of debt caused by tax breaks for the rich? Given how lucrative lobbying is as an in- that. If you do not believe that, if you do vestment, it has become a huge business. We get letters from people who say: not think that is right, let the Presi- In other words, what he is talking You know, I dreamed that my kid, my dent of the United States know about about is, if you have a good lobbyist daughter, would go to college, and she it. Let your Senator know about it. Let and the lobbyist changes a few words in is not going to go to college now. She your Congressman know about it. We a bill, your company or you as an indi- is not going to go to college. need a handful, seven or eight Members vidual can end up with huge amounts It is just painful to even talk about of the Senate to hear from their people, of money just by changing a few words. and think about, the direction in which to say: Wait a minute. Don’t hold my In this case, language that we are this country is moving. So I want to kids hostage. Don’t force them to pay working on now is whether we extend now take a break from reading these higher taxes in order to give tax breaks the Bush tax breaks for the top 2 per- letters. Actually, the truth is, when to the very rich. cent, for many millionaires and billion- these letters came in a year ago I could If the American people stand up and aires. Some lobbyists, representing the not read more than a half dozen at a by the millions let their Senators and rich and the powerful, are determined time. They took too much out of me. Congressmen and the President know, to keep that language in there.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8775 So it is an investment. So you spend in America, huge role in the Internet, and, more importantly, the American a few million dollars, an organization and NBC is one of the largest media people, to say no to this agreement. If spends a few million dollars on a lob- conglomerates in America. What they we stand together, if the American peo- byist, but if you end up getting back are trying to do right now is to merge, ple write or e-mail or call their Sen- hundreds of millions of dollars in tax these two huge companies. ators and their Congress people, I breaks and corporate loopholes or I think the problem in America is we think we can turn this thing around. I have too few companies controlling other benefits, it is a very good invest- think we can come up with an agree- ment. That is what Tom Hartman is what goes on. We have too much of a concentration of ownership, and that ment that makes us all proud, rather writing. He says: than one that we have to be ashamed Given how lucrative lobbying is as an in- merger is bad. Well, I can assure you vestment it has become a huge business. In for a fact, they have all of these lobby- for. February, 2010, the Center for Responsive ists in the media industry, from com- I know there was an editorial back in Politics laid out which industries had in- munications, right here rallying, try- the State of Vermont which I saw. I do vested how much in Congress the previous ing to do their best to make sure this not remember the exact title, but year. Overall, it found that in 2009 the num- merger and other type mergers take something to the effect of: This agree- ber of registered lobbyists who actively place—$360 million from the commu- lobby Congress was 13,694 and the total lob- ment stinks, it is odious, but it is bet- nication and electronics industry. ter than nothing. Well, I do not think bying spending— Then we have other types of organi- that has to be the choice, awful or bet- Get this. Total lobbying spending in zations as well. Bottom line, in the ter than nothing. I think the choice 2009 was $3.47 billion, a 240-percent in- year 2009, they spent $3.47 billion, al- crease since 1999, 10 years, more than can actually be a good agreement. And most 31⁄2 billion, on lobbying. And you tripling it, I guess. In 2009 companies know what, you get what you pay for. I think if the American people stand spent $3.47 billion in lobbying. We have That is just lobbying. We are not with those of us who are opposing this 100 Members of the Senate, 435 Mem- talking about campaign contributions. agreement, we can pull this off. We can bers of the House. Listeners or viewers We are not talking about the huge defeat this agreement and come up can get out their calculating machine sums of money it now takes to run for with a much better one, one that does and divide it up, how much money the office in the United States, and we are not cause our kids and grandchildren big money interests are spending try- not talking about where that money to pay higher taxes in order to provide ing to influence Senator INOUYE or my- comes from. We are not talking about huge tax breaks for the richest people self or the other 98 Members of the the Citizens United horrendous deci- in this country. Senate or 435 Members of the House. sion reached by the Supreme Court In talking about the reasons I am op- They are flooding this institution with which allows billionaires and all of posed to this agreement, one of the money. these companies and their executives Let me give you just a breakdown of to put money into campaigns and not other reasons is that while the Presi- where that money is coming from. even have to be identified. We are not dent and the Republican leadership What they call miscellaneous business, even talking about that. This is just say, well, you know, this is just a tem- that is retail and manufacturing, et lobbying. porary extension, it is going to be for 2 cetera, $558 million in one year, 2009; So if you wonder why we are having years, just temporary, you know and I health care, $543 million. a serious discussion about whether we know that when you talk about tem- By the way, that was before health should give tax breaks to millionaires porary here, it becomes long term and care reform. My strong guess—I will be and billionaires while the middle class then perhaps becomes permanent. very surprised if that number did not is collapsing, and tens of millions of If we extend these tax breaks for the double. If you were a health care lob- people have no health insurance, and byist this year, trust me, you are doing top 2 percent now, my strong guess—I we have the highest rate of children in hope I am wrong. I certainly hope this very well. They were all over this poverty, and we have the most unequal proposal is defeated, but if we extend place, making sure we did not pass a distribution of wealth and income of them for 2 years, my strong guess is strong health care bill, for example, in any country, if you wonder how we Medicare for all, a single-payer pro- would consider for 1 minute talking they will be, 2 years from now, ex- gram, which I support. On top of that, about more tax breaks for the rich, tended again. And depending upon the you have the finance, insurance and then you do not know much about politics of what goes on here, they can real estate industries combined that what goes on here in Washington and be extended permanently. spent $465 million. you do not know about campaign con- Our Republican colleagues, as you And, again, that was before we dealt tributions and the degree to which big well know, wanted to extend them for with financial reform. I suppose the re- money buys and sells politicians. 10 years at a cost of $700 billion. An in- cent legislation we dealt with, health I want to review again—the reason I crease in our national debt. Our Repub- care reform and financial reform, was a am down here today, and I have been lican friends are fighting hard to com- real boon to the lobbyists around here, here for a few hours—and voice my pletely repeal the estate tax, which because they can go out and earn their very strong opposition to the agree- would cost us $1 trillion, $1 trillion in money. But that was before this. Fi- ment that was reached between the Re- 10 years in increased national debt. nance, insurance, real estate, only publican leadership and President spent $465 million in 1 year to influence Obama. I think the American people do So the point I have got to make—I 100 Members of the Senate and 435 not like this agreement. All I can tell want to emphasize this point, that Members of the House. you—I do not know what is going on in when people talk about these things Energy and natural resources. Well, your office, coming from Alaska, Mr. being short term, being temporary, as I mentioned earlier today, President, but I can tell you in the last take those thoughts with a grain of ExxonMobil last year made $19 billion, 3 days, between phone calls and e- salt. Maybe that is the case. I do not paid nothing in taxes, got a $156 mil- mails, I probably have gotten 5,000. We think it is. I think once you move over lion refund. ExxonMobil and other have heard from about 5,000 people, the cliff and make that decision to ex- companies are putting all kinds of many from Vermont, some from out of tend these tax breaks, they are going money into phony organizations telling State as well. to be extended long term. Here is the us that global warming is not real, we The opposition to this agreement is reason why. Right now the dynamic do not have to transform our energy probably 99 percent. People cannot un- here is the President campaigned system; costs a lot of money to do derstand why in a million years, with a against these tax breaks. The Presi- that. The energy and natural resources $13.7 trillion national debt, and a $1.4 dent does not believe in extending companies spent $408 million in 2009 trillion yearly deficit, we would be these tax breaks for the rich. But he alone. This is 1 year, folks, 1 year. thinking for one second, for one sec- felt he had to make the compromise. I Communications, electronics. Right ond, about giving tax breaks to the thought he made a bad compromise. now I am working on an issue which richest people in this country who are deals with the merger of Comcast and already doing fabulously well. But our Republican friends are say- NBC. I think it is a bad idea. Comcast I am down here today, and have been ing over and over that if you rescind, is the largest provider of cable services for a few hours, to urge my colleagues end these tax breaks to the rich, you

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8776 CONGRESSIONAL RECORD — SENATE December 10, 2010 are raising taxes 2 years from now in even more true today, hence the estate benefit only the top three-tenths of 1 the midst of a Presidential campaign, tax. percent. when President Obama, if he is the Unfortunately, under the agreement Again, if some of my Republican col- Democratic candidate, says: Do not reached by the President and the Re- leagues are successful in their desire— worry, I am going to oppose these ex- publicans, the estate tax rate, which and they are moving down the path—if tensions of tax breaks for the rich, his was 55 percent under President Clinton we repeal the estate tax entirely, credibility has been severely damaged, when the economy, by the way, was a which is what they want to do—it is and the American people know it. Can heck of a lot stronger than it is today, hard to believe, and some of the lis- they trust him? That is what he told will decline to 35 percent with an ex- teners out there think I am kidding, them then. That is what he will tell emption on the first $5 million of an in- but I am deadly serious—it will drive them in 2 years. Is he going to be be- dividual’s estate and $10 million for a up the national debt by $1 trillion over lieved? I do not think so. So these tax couple. a 10-year period. Lowering the estate breaks, while ostensibly for 2 years I made this point earlier, but I think tax rate and raising the exemption is may, in fact, be for a lot longer than it has got to be made over and over. clearly an onerous provision. that. Our Republican friends have renamed It is not only the Walton family of I would also say that while we have the estate tax the death tax. The impli- Walmart who will benefit. According to talked about—primarily the discussion cation of what they are saying, and Forbes magazine, there are 403 billion- has centered around extending the tax what many Americans believe, is that aires living in this country with a com- breaks, personal income tax breaks to if I have $100,000 in the bank or $50,000 bined net worth of $1.3 trillion. That is the very rich, there are other tax in the bank and I die, my kids are not shabby. That is pretty good. Any- breaks in this proposal which are going to have to pay a heavy estate tax one lucky enough to inherit this ex- equally odious. on what I left them. But that is abso- traordinary wealth would benefit the What this agreement between the lutely and categorically not the case. most from repealing the estate tax. President and the Republican leader- The estate tax applies only to the top As Robert Frank wrote in his book ship does is it extends the Bush era 15- three-tenths of 1 percent. This is not a ‘‘Richistan’’: percent tax rates on capital gains and tax on the rich. This is a tax on the The wealthiest people in this country accu- dividends, meaning that those people very, very, very rich. And under this mulated so much wealth that they have been who make their living off of their in- proposal, which benefits only the top competing to see who could own the largest vestments will continue to pay a sub- three-tenths of 1 percent, the President private yacht, who could own the most pri- stantially lower tax rate than firemen, and the Republicans agreed to lower vate jets, who could own the most expensive teachers, and nurses. the tax rate on the estate tax to 35 per- cars, jewelry, artwork, et cetera. In 1997, for cent, with an exemption on the first $5 example, Leslie Wexner, chairman of Lim- Think about that. You are a big-time ited Brands, the company that owns Vic- investor. You make most of your in- million. toria’s Secret— come off of capital gains or dividends, That is wrong. Let me give you an And none of us know what Victoria’s and you are paying a 15-percent tax example of who the folks are who will Secret is— rate. But if you are a worker doing benefit from doing this. Many of my something with your hands or you are Republican colleagues have been push- paid a German shipmaker to build what was ing very hard, not just to lower the tax then the largest private yacht in the United a teacher or a fireman or you are a cop States. It is called The Limitless. or nurse, a doctor, you are paying tax rate—by the way, this 35 percent is rates that are higher than that. We are lower, I think, than they ever dreamed There is a photo. It is a nice boat. It extending those 15-percent tax rates on they would get, with a $5 million ex- stretches 315 feet and has 3,000 square capital gains and dividends. emption, but what they wanted ulti- feet of teakwood and a gym. Then, on top of that, this agreement mately, and I suspect will continue to According to Forbes magazine, Mr. includes a horrendous proposal regard- fight for, is the complete repeal of the Wexner is one of the wealthiest 400 peo- ing the estate tax. The estate tax was estate tax. ple in this country, worth an estimated enacted in 1916, and it was a proposal To give one example—and I don’t $2.3 billion. Permanently repealing the strongly supported by Teddy Roo- mean to pick on the Walton family, but estate tax would allow Mr. Wexner’s sevelt, who believed very strongly that just as a flesh-and-blood example—Sam two children to inherit all of his wealth it was not healthy for America to have Walton’s family, the heirs to the without paying a nickel to help this an ongoing and evolving concentration Walmart fortune, are worth, give or country deal with the enormous prob- of ownership. Here is what Teddy Roo- take, $86 billion. That is a lot of lems we have. sevelt said in 1910: money. The Walton family would re- I wish Mr. Wexner—I don’t know him; I hope he is alive and well—a long The absence of effective State, and, espe- ceive an estimated $32.7 billion tax cially, national, restraint upon unfair break if the estate tax was completely life. But I believe strongly that in this money-getting has tended to create a small repealed. Does anybody in their right country, if we are going to see the mid- class of enormously wealthy and economi- mind believe that when this country dle class survive and our kids do well, cally powerful men, whose chief object is to has a national debt of $13.7 trillion and we cannot repeal the estate tax and we hold and increase their power. The prime when we have the highest rate of child- cannot lower estate tax rates. need is to change the conditions which en- hood poverty in the industrialized I wish to address another issue which able these men to accumulate power which is world and our unemployment rate is 9.8 I talked about earlier. I think there is not for the general welfare that they should some misunderstanding. The Presiding hold or exercise . . . No man should receive percent, can anybody for one second a dollar unless that dollar has been fairly fathom Members of the Senate saying Officer raised this issue at a recent earned. Every dollar received should rep- they want to give a $32 billion tax meeting we had. All over the country, resent a dollar’s worth of service rendered— break to one family? people say: Isn’t it great that we are not gambling in stocks, but service rendered. In terms of the estate tax, what we going to lower the payroll tax on work- The really big fortune, the swollen fortune, have done is made it even more regres- ers? We are going to go from 6.2 per- by the mere fact of its size acquires qualities sive. We have given substantial help to cent, which workers now pay, down to which differentiate it in kind as well as in exactly the people who need it the 4.2 percent. People are going to have degree from what is passed by men of rel- least. That is not what we should be more money in their pocket, which cer- atively small means. Therefore, I believe in a graduated income tax on big fortunes, and doing. Our job—and I know it is a rad- tainly is a good thing. It is going to in another tax which is far more easily col- ical idea—should be to represent the cost $120 billion in Social Security pay- lected and far more effective—a graduated vast majority of the people, the middle roll taxes. inheritance tax on big fortunes, properly class, the working families, and not Here is the point. Yes, we do want to safeguarded against evasion and increasing just the top 1 or 2 percent. This pro- put more money in workers’ pockets. rapidly in amount with the size of the estate. posal, this lowering of the estate tax, That is why many of us in the stimulus How is that? One hundred years ago. which will cost our government sub- package supported a $400-a-year tax That is what he said. I would say he stantial sums of money because the break for virtually every worker in got it right when he said that. It is revenue is not going to come in, will America. That is what we said. We

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8777 want people in these difficult times to tions for a so-called tax holiday may sound start diverting funds, for the next 29 have the money to take care of their like a good deal for workers now, but it is years, at which point it pays out about families. When they have that money, bad business for a program that a majority 78 percent of benefits. So our challenge they go out and spend it. When they of middle class seniors will rely upon in the in 29 years is to fill that 22-percent gap. future. spend it, it creates other jobs because That it is. Can we do it? Sure we can. people have to provide goods and serv- The headline is ‘‘Cutting Contribu- President Obama, when he was cam- ices for them. It has a good, stimula- tions to Social Security Signals the paigning, and I think he has repeated tive impact. We do want workers to Beginning of the End.’’ since, the very good suggestion that in- have more money in their pockets. This is not a good approach. Pro- stead of having a cap in terms of which While this idea of lowering the pay- viding and figuring out a way that we people contribute into the fund at roll tax sounds like a good idea, in can get more money into the hands of $106,000, what we should do is do a bub- truth, it really is not a good idea. This working people, as we did in the stim- ble, and people who make $250,000 or idea originated from very conservative ulus package, does make a lot of sense. more should contribute into the Social Republicans whose intention from the Going forward with a payroll tax holi- Security trust fund. If you did that and beginning was to destroy Social Secu- day is a backdoor method to end up nothing else, you have essentially rity by choking off the funds that go to breaking Social Security. It is not any- solved the Social Security problem for it. This is not just Bernie Sanders’ thing we should support. the next 75 years. Very easy. It is done. analysis. There was recently—I distrib- Let me mention a quote from a gen- So what this payroll tax holiday is uted it recently at a meeting we held— tleman who understands this issue very doing, in my view, is pretty dangerous. a news release that came from the Na- well. He understands the politics of I do not think enough people under- tional Committee to Preserve Social what is going on here. His name Bruce stand that. I think that is one of the Security and Medicare. The headline Bartlett, former adviser for Presidents strong reasons this agreement should on that press release is ‘‘Cutting Con- Reagan and George H.W. Bush. He re- be opposed. tributions to Social Security Signals cently wrote the following in opposi- Another reason I believe this agree- the Beginning of the End. Payroll Tax tion to this payroll tax cut. This is ment is not as good an agreement as Holiday is Anything But.’’ What the what Mr. Bartlett wrote: we can get is that it provides tens and National Committee to Preserve Social What are the odds that Republicans will tens of billions of dollars in tax cuts Security and Medicare, which is one of ever allow this one-year tax holiday to ex- for various types of businesses. I am pire? They wrote the Bush tax cuts with ex- the largest senior groups in America, not here to say these tax cuts cannot plicit expiration dates and then when it do some good. I suspect they can. But well understands is that there are peo- came time for the law they wrote to take ef- ple out there who want to destroy So- fect exactly as they wrote it, they said any I think there is a lot better way to cre- cial Security. And one way to do that failure to extend them permanently would ate the jobs we need than providing is to divert funds into the Social Secu- constitute the biggest tax increase in his- these particular business tax cuts. rity trust fund and they don’t get tory. . . . if allowing the Bush tax cuts to ex- Frankly, I think economists from al- there. pire is the biggest tax increase in history, most all political spectrums—conserv- What the President and others have one that Republicans claim would decimate ative to progressive—understand that a still-fragile economy, then surely expira- said is not to worry, this is just a 1- if we are serious about creating the tion of a payroll tax holiday would also con- kinds of jobs this economy desperately year program—just 1 year. In fact, they stitute a massive tax increase on the work- say, the General Treasury will pay the ing people of America. Republicans would needs and if we want to do that as rap- difference. So the Social Security trust prefer to destroy Social Security’s finances idly and as cost-effectively as we pos- fund is not going to lose funding. or permanently fund it with general reve- sibly can, the way to do that is not to The reason we have a $2.6 trillion nues— provide business tax cuts because right surplus today in Social Security and Switch the revenue base from the now—right now—corporate America is the reason Social Security is good for payroll tax to general revenues— sitting on close to $2 trillion cash on the next 29 years to pay out all benefits than allow a once-suspended payroll tax to hand. They have a ton of money. The is because it comes from the payroll be reimposed. Arch Social Security hater problem is the products they are cre- tax. It is not dependent upon the Peter Ferrara once told me that funding it ating are not being bought by the whims of the Congress and the Treas- with general revenues was part of his plan to American people because the American ury. destroy it by converting Social Security into people do not have the money to buy The President and Republicans said: a welfare program, rather than an earned those goods and services. benefit. He was right. This is just a 1-year program. Don’t So if we are serious about creating worry. In other words, what this issue is the jobs we need, I think what we have I do worry. I worry that once we es- about is breaking the bonds we have to do is start making significant in- tablish this 1-year payroll tax holiday, had since the inception of Social Secu- vestments in our crumbling infrastruc- next year our Republican friends will rity where Social Security was paid for ture; that is, rebuilding our bridges, say: Do you want to end that? You are by workers. You pay for it when you our roads, our water systems, going to be raising taxes on workers. are working, and you get the benefits broadband, cell phone service, public And enough people will support that when you are old. That is the deal. transportation, our rail system, dams. concept, and this 1-year payroll tax There is no Federal money coming in In every single one of these areas, we holiday will become permanent. And from the General Treasury. are seeing our infrastructure crum- when we do that, we will be choking This gentleman, Mr. Bartlett, former bling. off, over a period of years, trillions of adviser to Presidents Reagan and The point is, if you simply ignore a dollars that we need to make sure So- George H.W. Bush, thinks—and I sus- crumbling infrastructure—and I say cial Security is viable and is there for pect he is quite right—this is the be- this as a former mayor who dealt with our children and grandchildren. ginning of an effort to destroy Social this issue—if you simply ignore a But don’t listen to me. Listen to Security. crumbling infrastructure, do you know somebody who knows a lot more about The real debate about Social Secu- what, it does not get better all by this issue than I do. Barbara Kennelly rity is not one about finances. itself. is a former Congresswoman from Con- There has been a lot of misinforma- I know many mayors and Governors necticut. She is the president and CEO tion and disinformation out there. I would very much like to think they of the National Committee to Preserve hear from some of my friends on the could turn their backs on the infra- Social Security and Medicare. This is Republican side that Social Security is structure because it is not a sexy in- what Barbara Kennelly says: going bankrupt; it is not going to be vestment. It is not a sexy investment. there for our kids. That is absolutely But the reality is, if you do not pay at- Even though Social Security contributed nothing to the current economic crisis, it not true. Social Security today has a tention to it today, it only gets worse has been bartered in a deal that provides def- $2.6 trillion surplus. Social Security and it costs you more money. It is like icit busting tax cuts for the wealthy. Divert- can pay out every benefit owed to having a cavity. You can get your cav- ing $120 billion in Social Security contribu- every eligible American, if we do not ity filled. If you neglect it, as I have,

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00049 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8778 CONGRESSIONAL RECORD — SENATE December 10, 2010 and you end up doing a root canal, it is say that at this particular moment in It is good economics because what far more painful, far more expensive. American history, at this particular the economists tell us is the people That is what it is about. Do we main- moment, it makes a lot more sense to who will spend that money quickest tain our infrastructure? Clearly, we create, over a period of years, millions are people who receive unemployment have not. According to the American of jobs rebuilding our rail system, our compensation because that is all they Society of Civil Engineers, we should subways, our roads, our bridges, and have. They are going to go out and buy, be spending about $2.2 trillion in the our water systems, and many other as- and when they buy from the neighbor- next 5 years in order to maintain our pects of our infrastructure. hood store, they create jobs. So it is infrastructure. There are places in Vermont and good economics, and it is the moral I say to the Presiding Officer, I do throughout this country where people thing to do. not know about Alaska—I spent a very cannot today get decent-quality But, frankly, in my view, this is not broadband service, cannot get cell brief time in the Presiding Officer’s much of a compromise. This is just phone service. In that area, we are be- beautiful State—but I do know in continuing four decades of existing hind many other countries, not Vermont we have bridges all over our policies. State that are in desperate need of re- wealthy countries around the world. When we make those investments in As I said earlier, there are very clear- pair. It is fair to say that the stimulus ly positive parts of this agreement, no package has been very positive for my infrastructure, we not only create jobs, but we make our country stronger and question about it. I think almost every State. We are spending more money on American will tell you that it would be roads and bridges. But we have a long more productive, and we enable our- selves to compete effectively in the totally absurd—I know there are some way to go. So we are putting money who disagree, but I think the vast ma- into our roads and bridges. We are hir- international economy. Another one of my objections to this jority of Americans believe that in a ing people to do that work. That is proposal and why I think we can do a time when the middle class is col- what we should be doing all over the lot better is that I was really quite dis- lapsing, when median family income country. turbed to hear the President and oth- has gone down, when unemployment is But it is not just roads and bridges. ers, who defend this proposal, talk high, that it would be a real horror It is water systems. I told this story, I about that one of the ‘‘compromises’’ show if we did not extend the Bush tax guess a few hours ago now, about a that was struck was to extend unem- breaks for the middle class, for 98 per- mayor, the mayor of Rutland, VT, ployment benefits for 13 months. cent of the American people—98 per- which is the second largest city in the To my mind, as I have said earlier, at cent. That is what we want. State. I was in his office and he showed a time of deep recession, at a time of We could have crafted it much tight- me a pipe, and the pipe was in pretty terribly high unemployment, it would bad shape. He said: You know, this pipe er, couldn’t we have? We could have be absolutely wrong and immoral for said: Nobody above $100,000, nobody was laid by an engineer who then, after us to turn our backs on the millions of he did this, went off to war. And he above $150,000. That is pretty generous. workers who are about to lose their un- We said a family earning up to $250,000 said: What war do you think he went employment benefits. If we do that, it off to fight? And he said it was the should get an extension of these tax is hard to imagine what happens to breaks. That is 98 percent of the Amer- Civil War—the Civil War. So this was those families, for many of whom this ican people, and that is not good pipe laid in Rutland, VT, which is still is their only source of income. What do enough for our Republican friends. being used, which was laid, I am guess- they do? Do they lose their homes? Do They are fighting tooth and nail to ing, in the 1850s, maybe 1860s. And it is they move out onto the streets? How make sure the top 2 percent—the mil- not just Rutland, VT. do they take care of their kids? I do When I was mayor of Burlington, we not know. There are parts of this coun- lionaires and billionaires, the CEOs had to spend $50 million, back then, 20 try where it is very hard to get a job. who earn tens of millions a year—they years ago, I think, rebuilding our Extended unemployment is at the high- are fighting—it is as if they are at war. wastewater plants and making sure est level I think we have ever seen. You They are so engaged to make sure that a lot of pollution and filthy water cannot turn your backs on those fami- these fabulously wealthy people re- did not get into our beautiful lake, lies. ceive at least $1 million, in some cases. Lake Champlain. It was an expensive But I get upset when I hear that the For people who are making $1 million a proposition. But right now, we are Republican’s willingness to support an year, they are going to receive, on av- going to have to invest in that. It is extension of unemployment benefits erage, $100,000 a year in tax breaks. For our water systems, our dams, our lev- for 13 months is a major compromise. I the very, very wealthiest, it could be ees, our roads, our bridges. will tell you—I think a lot of the over $1 million a year. I mentioned earlier and contrasted American people do not know this— I say to the Presiding Officer, I know what was going on in infrastructure in that for the past 40 years—40 years, you joined me just 2 days ago in saying the United States as opposed to China, four decades—under both Democratic that at a time when senior citizens in and I quoted from a book called ‘‘Third and Republican administrations, when- this country and disabled vets, for 2 World America,’’ written by Arianna ever the unemployment rate has been years in a row, had not received any Huffington, who tells us, essentially, if above 7.2 percent—and today we are at COLA, that maybe it was the right we do not get our act together, that is 9.8 percent unemployment—always, thing to do—because we know that what we will become—a third world whether the Democrats were in con- health care costs and prescription drug country. trol, the Republicans were in control, costs are soaring—that maybe we She points out that compared to the President was Democrat, the Presi- should provide a $250 check for those countries such as China, our invest- dent was Republican, what people did seniors and disabled veterans one ments in rail are absolutely pathetic was say: We have to extend unemploy- time—one time. I could not get one Re- and inadequate. In China, right now, ment benefits. It is kind of common publican vote in support of that propo- that country is investing billions and sense. It is not partisan. So when you sition. We won 53 to 45, but around here billions of dollars in high-speed rail, have a program that has existed for 40 it does not take 50 votes to win; it does building thousands and thousands of years in a bipartisan effort, it sounds not take a majority to win; it takes 60 miles of high-speed rail. They are to me that it is not much of a com- votes. We could not get one Republican building over 100 new airports. And promise for the Republicans to say: vote. So here you have every Repub- what are we doing? OK, we will do what Democrats and Re- lican voting against a $250 check for a So one of my many objections to the publicans have done for 40 years. What disabled vet or a senior citizen who is proposal struck between the President a major compromise. It is not a com- living on $15,000, $16,000 a year. Cannot and the Republican leadership is I promise. It is just continuing existing afford it. But we can afford a million- think we can do better in job creation bipartisan policy, which is sensible. It dollar-a-year tax break for somebody than in business tax cuts. There is a is sensible from a moral perspective. who is worth hundreds of millions of time and a place for business tax cuts, You cannot leave fellow American fam- dollars. Now, somebody may under- and I am not against them. But I would ilies out high and dry. stand that rationale. I don’t. I really

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8779 don’t. I can’t understand it. I can’t un- economists to say how do we in a fair cial Security and Medicare and Med- derstand asking our kids and grand- way—in a fair way—address the deficit icaid and education and other pro- children to pay more in taxes, and the and national debt crisis. That wasn’t grams if this proposal is passed. national debt goes up in order to pro- what that commission did. So these So this is not only an important pro- vide tax breaks for the richest people folks are talking about major cuts in posal unto itself: $900 billion plus even in this country. Social Security, Medicare, Medicaid. in Washington is nothing to sneeze at. So while there are some good provi- At a time when it is so hard for But it is an important proposal in sions in this bill—certainly extending young people to afford to go to college, terms of the direction in which our the tax breaks for 98 percent of our they want to raise the costs by asking country goes into the future. If we ac- people, for the very broad middle class; our young people while they are in col- cept this proposal of a 2-year extension I think if the American people demand lege to be accruing the interest on for the richest people in America, I be- it, in our democracy we can do better. their loans. lieve it will eventually become either a I don’t know if the Presiding Officer or So I think if the President believes long-term extension or a permanent ex- I alone will be able to convince some of that if this agreement is passed, the tension. If we accept the proposal that our Republican friends or maybe some Republicans are going to come to the lowers the rates on the estate tax of our Democratic friends to make this table and we are all going to live hap- which benefits only the top three- into the kind of proposal we need for pily in the future, we are all going to tenths of 1 percent—99.7 percent of the working families of this country, work together in a nonpartisan way, I Americans get nothing—but if we give and for our children, for our next gen- think he is not understanding the re- them what they want, I believe over a eration. I don’t know if we can do it in- ality. These people are going to come period of years it will lead to the com- side this beltway. back and they are going to come back plete abolishment and ending of the es- As I said earlier, I think the way we very aggressively for major cuts in So- tate tax which will cost us over $1 tril- win this battle, the way we defeat this cial Security, Medicare, Medicaid, en- lion over a 10-year period. proposal and come back with a much vironmental protection, education, So I hope this issue is not one just better proposal is when millions of childcare, Pell grants, you name it, be- progressives or moderates feel strongly Americans start writing and e-mailing cause their belief is—I don’t quite un- about. I hope honest conservatives, and calling their Senators, their Con- derstand it—that it is somehow good who in their heart of hearts believe gress people, and say: Wait a second. public policy to give tax breaks for the this country is seriously in danger Are you nuts? Do you really think mil- wealthiest people in this country who, when we have unsustainable deficits lionaires and billionaires need a huge in many ways, have never had it so and a huge national debt, will tell their tax break at a time when this country good, while you cut programs that the elected officials here in Washington has a $13.7 trillion national debt? What middle class and working families of not to pass a piece of legislation which are you smoking? How could you for this country desperately depend upon. increases the national debt signifi- one second think that makes any sense So I would suggest that this big de- cantly and, in fact, will allow for the whatsoever? bate we are having right now on wheth- permanent—over years, in my view— I will tell the Presiding Officer some- er we should accept the proposal agreed extension of these tax breaks. thing. I don’t know what my phones to by the President and the Repub- So that is what this debate is about. are doing today in my office right now. licans is just the beginning of what is It is about fundamentally whether we But in the last 3 days we have gotten, coming down the pike. If we surrender continue the process by which the rich- I am guessing, 5,000 phone calls and e- now on this issue, we can expect next est people in this country become rich- mails, and about 99 percent of them are month and the following month an- er, at a time when we have the most in disagreement with this proposal. other governmental crisis, another unequal distribution of income and I am looking at a chart. We have got- threat of a shutdown, unless they get wealth of any major country on Earth. ten 2,100 calls that just came in today. their way. So I think rather than ask- As I have said earlier, this is not an I don’t know what kind of calls other ing the working families of this coun- issue that is discussed—I don’t know— Members of the Senate are getting, but try to have to compromise, instead of well, I do know why. It is just not an certainly those are the calls I am get- asking our kids to pay more in taxes to issue that people feel comfortable talk- ting. bail out billionaires, maybe—I know ing about because they don’t want to This point cannot be made strongly this is a radical idea—but maybe we give affront to their wealthy campaign enough: What our Republican friends should ask a handful of our Republican contributors or take on the lobbyists want to do—and they have been pretty friends to join us. Maybe a handful of who are out there. But that is the re- honest and up front about it, especially honest conservatives over there who ality. Throughout the entire world, the some of the extreme, rightwing people have been telling us for years their United States has the most unequal who have been running for office and, great concerns about deficit spending distribution of income. The top 1 per- in some cases, have won—they have and a huge national debt, maybe they cent is earning 23.5 percent of all in- been honest enough to say they want should be prepared to vote against the come. That is more than the bottom 50 to bring this country back to where we proposal which raises the national debt percent. That is not just immoral, it is were in the 1920s. Their ultimate aim is and our deficit by giving tax breaks to bad economics because if the middle the basic repeal of almost all of the some of the richest people in the world. class gets crushed entirely, who is provisions that have been passed in the Quite frankly, I don’t think I am going to be buying the goods and serv- last 70 years to protect working people, going to be able to convince them. I ices produced in this economy? the elderly, and children. They believe don’t know that the Presiding Officer So this piece of legislation, as impor- in a Darwinian-style society in which is going to be able to convince them. tant as it is unto itself—and it is very you have the survival of the fittest; But I think their constituents can con- important—is equally important in that we are not a society which comes vince them. I think the American peo- terms of what it says about where we together to take care of all of us. You ple can convince them. I think, as I are going into the future. Are we going take care of me in need and I take care said earlier, if the American people to protect the middle class and work- of you and your family; that we are one stand up, we can defeat this proposal ing families of our country? Are we people. Their strategy is pretty clear. and we can create a much better pro- going to make sure every young person They want to ultimately destroy So- posal. in America, regardless of income, has cial Security. Clearly, we must extend tax breaks the ability to go to college, or are we What we are beginning to hear more for the middle class. Clearly, we must going to allow college to become and more of is why don’t we raise the make sure unemployed workers con- unaffordable for hundreds and hundreds retirement age to 68 or 69. That deficit tinue to get the benefits they des- of thousands of bright, young people, reduction commission, which I thought perately need. But equally, clearly, we or else force them to leave school deep- was—the people on that commission must make sure we are not raising the ly in debt? were bad appointees by the President. national debt which, as sure as I am Are we going to create a health care We could have put together some good standing here, will result in cuts in So- system which guarantees health care

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00051 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8780 CONGRESSIONAL RECORD — SENATE December 10, 2010 to all of our people—high-quality good, charitable work he does, and good other provisions in there which I health care—or are we going to con- Warren Buffet and many others—who think are worthwhile. tinue a situation where 45,000 Ameri- are saying: I am doing just fine. I am a I think if the American people stand cans die each year because they don’t billionaire or a multimillionaire. I and agree with those of us who say no have access to a doctor? Are we going don’t need your tax breaks. I am wor- more tax breaks for the very wealthi- to invest in our energy system so we ried about the fact that we have the est people in this country, we can de- break our dependence on foreign oil? highest rate of childhood poverty; in- feat this proposal, and we can come up We spend about $350 billion a year im- vest in our children. I am worried that with a much better one that is fairer to porting oil from Saudi Arabia and our infrastructure is crumbling; invest the middle class of this country and is other foreign countries—almost $1 bil- in our infrastructure. I am worried fairer to our young children. lion a day—which should be used to that 45,000 Americans are dying this I do not want to see our young kids— make this country energy independent, year who don’t have access to health my children and grandchildren—have a which should be used to transform our care; invest in health care. I am wor- lower standard of living than their par- energy system away from fossil fuel ried about global warming; invest in ents. That is not what America is into energy efficiency and sustainable transforming our energy system. These about. What I think we have to do is energy, technologies such as wind, are patriotic Americans. They love defeat this proposal. I think we have to solar, geothermal, and biomass. their country. They are saying to us: urge our fellow Americans to stand and By the way, none of that has been ad- We don’t even want it. say no to tax breaks for those who dressed, as I understand it, in this pro- So we are giving money to people don’t need it. I think we have to work posal. who, in some cases, don’t even want it. in a very serious way about creating So my point is not just that this pro- I do know there are others out there the millions and millions of good-pay- posal is a bad proposal as it stands be- who do want it. I think if there is one ing jobs that this country desperately fore us now, but it is going to move us issue that we as a Congress and a gov- needs. I personally believe that is a far in the future in a direction that I do ernment have to address, it is the ex- more effective approach than giving not believe this country should be traordinary level of greed in this coun- the variety of business taxes that were going. try. We have to stand tall and draw a in this proposal at a time when cor- I mentioned earlier my own personal line in the sand and simply say: porate America is sitting on $2 million family’s history is the history of mil- Enough is enough. How much do you of unused cash. They have the money. lions and millions of Americans. My fa- want? How much do you need? How I think a much better approach, as I ther, as it happened, came to this coun- many yachts can you own? How many said earlier, is investing in our crum- try at the age of 17 without a nickel in homes can you have? Isn’t it enough bling infrastructure. I think that his pocket. He worked hard his whole that the top 1 percent now earns 23.5 makes us healthier and stronger as a life. He never made very much money, percent of the income in this country? nation for the future and in the global but he and my mom—my mom grad- How much more do they want? Do they economy. uated high school; she never went to I think it creates jobs quicker and in want 30 percent, 35 percent? Isn’t it college—had the satisfaction, the very a more cost-effective way than these enough that the top 1 percent owns significant satisfaction, of knowing tax cuts. I also think it is high time more wealth than the bottom 90 per- their kids got a college education. My the American people move—they want cent? How much more do they need? older brother Larry went to law school, I mentioned earlier, when I talked us to move in an entirely new direction and I graduated from the University of about the situation that got us into in terms of trade. I am always amazed how Republicans and Democrats Chicago. this horrendous recession—and that is I think what is going on in this coun- alike—and I speak as the longest serv- the collapse of Wall Street—I talked try and why the anxiety level is so ing Independent in Congress—come about what I think most Americans high is not just that people are worried election time, have ads on television understand very well; that is, the in- about themselves—parents worry more saying: Oh, we have to do something credible greed and recklessness and dis- about their kids than they do about about outsourcing and about our trade honesty that exists on Wall Street. We themselves. But what parents are sit- policy. But somehow, the day after the must not allow ourselves to encourage ting around and worrying about now is election, when corporate America con- and continue the kind of greed we have they are saying: Will, for the first time tinues to throw American workers out seen in recent years. It is an abomina- in the modern history of this country, on the street and moves to China, my kids have a lower standard of living tion that the people who caused this moves to other low-wage countries, than their parents? economic crisis—the worst recession that discussion ceases to exist and that Will my kids earn less income? Will since the Great Depression—that the legislation never seems to appear. my kids not have the education I have? people on Wall Street who caused it are So it seems to me we have to defeat Will my kids not have the opportunity now earning more money than they did this proposal, and that in defeating to travel and learn and grow as I have before we bailed them out. this, we are going to tell the American done? Are the best days of America be- Earlier today, I was reading some e- people there are at least some of us hind us? That is really the question. I mails that came to my office from here who understand what our jobs and don’t think that has to be the case. Vermonters who were struggling to obligations are; that is, that we are But I will tell my colleagues, as I keep their heads above water. They supposed to represent them, the middle mentioned earlier, if we are going to were terribly painful and poignant sto- class of the country, and not just change the national priorities in this ries about honest, good, decent people wealthy campaign contributors or bow country, if we are going to start devot- who are now choosing whether they to the interests of the lobbyists who ing our energy and our attention to the should put gas in their car or buy the are all over this place. needs of working families and the mid- food or prescription drugs they need. It When I talked a moment ago about dle class, we have to defeat this pro- is not just a Vermont story; it is an the need to invest in our infrastructure posal and we have to defeat similar American story. It is a reality out as a way to create jobs, being more types of proposals which come down there for tens of millions of Americans. cost-effective than some of these busi- the pike. When this country has a $13.7 In my view, we can negotiate a much ness tax breaks, I am looking now at a trillion national debt, it is insane— better agreement than the one Presi- Wall Street Journal article of Decem- nothing less than insane—to be talking dent Obama and the Republican leader- ber 9, 2010. Here is the headline: ‘‘Com- about huge tax breaks for people who ship did. There are some good parts of panies Clinging to Cash; Coffers Swell don’t need them. Again, as I mentioned that agreement, which obviously to 51-year High as Cautious Firms Put earlier, ironically, we have a lot of should be retained and perhaps even Off Investing in Growth.’’ these millionaires out there who appar- strengthened. Those include, of course, That is a story by Justin Lahart. ently love their country more than making sure we extend unemployment Here is the story. It makes the point I some of the people in this Chamber. benefits to those who need it and, of have been trying to express: You have some of the richest people course, that we extend tax breaks for Corporate America’s cash pile has hit its in America—Bill Gates and all the the middle class. There are some very highest level in half a century. Rather than

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8781 pouring their money into building plants or are supportive of the deal. You can do Harlan, Pineville and other cities in hiring workers, nonfinancial companies in the arithmetic on it. At least 95 per- the eastern Kentucky region knowl- the United States are sitting on $1.93 trillion cent of the calls I got today are saying edge of how their neighbors in sur- in cash— this is not a good deal. We can do bet- rounding towns are doing. WYMT has I said $2 trillion, but it is $1.93 tril- ter. also strived to balance the positive and lion in cash. I know that in the last 3 or 4 days we negative news stories that it covers in —and other liquid assets at the end of Sep- have gotten probably 6,000 or 7,000 calls the region, which has added to their tember, up from $1.8 trillion at the end of that say this. This is not just success over the years. June, the Federal Reserve said Thursday. Vermont—many of those calls come Cash accounted for 7.4 percent of the compa- I would like to personally thank nies’ total assets, the largest share since from out of State, by the way. But I think that is true all over this country. WYMT for the hard work they have put 1959. The cash buildup shows the deep cau- in over the years in covering current tion many companies feel about investing in Let me conclude. It has been a long expansion, while the economic recovery re- day. Let me simply say I believe the events in our Commonwealth in an mains painfully slow, and high unemploy- proposal that was developed by the honest and unbiased manner. The ef- ment and battered household finances con- President and the Republicans is no- fort they have put forth to unify the tinue to limit consumers’ ability to spend. where near as good as we can achieve. entire region of eastern Kentucky is What have we been talking about? I don’t know that we are able ourselves appreciated by many. I ask my col- The Wall Street Journal is not my fa- to get the handful of Republicans we leagues to rise and join me in con- vorite paper, but they are saying that need to say no to this agreement. I do gratulating them on this 25-year anni- the way you are going to get the econ- believe that if the American people versary. omy moving again is to put money in stand—by the way, it may not just be the hands of working people, who will Republicans. There may be some f then go out and buy the goods and Democrats as well. If the American services these companies produce. I people stand and say: We can do better TRIBUTES TO RETIRING have my doubts about whether these than this; we don’t need to drive up the SENATORS tax rates will, in fact, have the desired national debt by giving tax breaks to result. millionaires and billionaires, that if ARLEN SPECTER As I said earlier, and will say again, the American people are prepared to Mr. LEVIN. Mr. President, for five I think the most effective way to cre- stand and we are prepared to follow terms, longer than anyone in his ate jobs, and the most important way, them, I think we can defeat this pro- State’s proud history, ARLEN SPECTER is to rebuild our crumbling infrastruc- posal and come up with a better pro- has represented the State of Pennsyl- ture. That is our roads, bridges, rail posal which reflects the needs of work- vania in the U.S. Senate. Over that system, water system, wastewater ing-class and middle-class families of time, he distinguished himself greatly, plants, our dams, levees, and the need our country and, to me, most impor- from his commendable work on the Ju- to improve broadband to make sure tantly, the children of our country. diciary Committee to his recent efforts every community in America has ac- With that, I yield the floor and I sug- to reestablish legal protections against cess to good-quality broadband and ac- gest the absence of a quorum. fraud. We saw from the beginning of his The PRESIDING OFFICER (Mrs. cess to cell phone service. Unfortu- Senate service his impressive grasp of GILLIBRAND). The clerk will call the nately, as best as I can understand, issues. But as he prepares to leave the roll. there has not been one nickel appro- Senate, I would like to focus on two ex- priated in this proposed legislation The legislative clerk proceeded to amples from his time here that I be- that would go to infrastructure im- call the roll. lieve speak to his formidable char- provements. Mrs. GILLIBRAND. Mr. President, I I think this proposal should be de- ask unanimous consent that the order acter. feated because it is not a strong pro- for the quorum call be rescinded. In early 2008, our Nation faced its posal for the middle class. It is a pro- The PRESIDING OFFICER (Mr. most daunting economic situation in posal that gives much too much to peo- SANDERS). Without objection, it is so decades. It was clear that private de- ple who don’t need it, and it is a pro- ordered. mand in the economy was fading in the posal that I think sets the stage for f face of a devastating financial crisis. similar-type proposals down the pike. I RECOGNIZING WYMT Economists across the political spec- apologize to anybody who has been lis- Mr. MCCONNELL. Mr. President, I trum were convinced that Federal fis- tening for any length of time. I know I rise today to recognize the employees cal stimulus was desperately needed as have been, to say the least, a bit rep- and friends of WYMT-TV as they cele- part of a strategy to keep recession etitious. brate 25 years as a news station in Haz- from turning into depression. And yet But the concern is that when the ard, KY. WYMT is much more than a there was significant doubt as to President and some of my Republican media outlet; rather, it is a success whether Congress could summon the colleagues talk about some of these tax story. In 1985, when talk of starting political will to do what was necessary. breaks being temporary, we are just WYMT first sparked, many people were Without at least a handful of Repub- going to extend them for 2 years, talk- opposed to the idea, as it was thought lican supporters in the Senate, the des- ing about this payroll tax holiday that the station would not be pros- perately needed economic rescue pack- being just 1 year, I have been in Wash- perous or competitive. However, age would not pass. ington long enough to know that asser- thanks to a few who saw what this At that moment, under immense po- tion doesn’t fly; that what is tem- news station could bring to eastern litical pressure, Senator SPECTER was porary today is long-term tomorrow Kentucky, WYMT was born. one of just three Republicans willing to and is permanent the next day. I fear My good friend Neil Middleton is cur- vote for the American Recovery and very much that this proposal is bad on rently the news director at WYMT and Reinvestment Act. Thanks to the fore- the surface. I fear very much that this has been there for most of its exist- sight of these Senators, millions of proposal will lead us down a very bad ence. From a time where two-way ra- Americans have jobs today who other- track in terms of more trickle-down dios were used in lieu of cell phones, wise would be unemployed. We should economics, which benefits the tricklers and 75 pound cameras were used for all be grateful for Senator SPECTER’s and not the ordinary Americans. I filming, to the age of the Internet and determination to do what the country think it is a proposal that should be de- acquiring footage on cell phones, Neil needed. feated. has seen many drastic changes. The point I wish to make is that is The dawn of the Internet allowed Senator SPECTER has faced down not just my point of view. I think it WYMT to connect more personally more dire circumstances than those should be defeated. I think we can do a with its viewers, as well as unify east- surrounding the stimulus vote. In 1993, lot better. I have to tell you the calls ern Kentucky, which has been the sta- he was diagnosed with a brain tumor— that are coming into my office are— tion’s mission from the first day on the one neurosurgeon told him he had just here is what we got today: 2,122 calls air. The birth and existence of WYMT weeks to live. In 2005 and again in 2008, oppose the deal, and I think 100 calls have given the people of Prestonsburg, he coped with Hodgkin’s disease.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8782 CONGRESSIONAL RECORD — SENATE December 10, 2010 In each of these cases, Senator SPEC- nees also fill out SF–86 personnel forms number ‘‘will clear before the session is TER not only faced down a deadly dis- as part of the executive branch’s re- over.’’ I hope this assurance is true. I ease, but he pushed the limits of phys- view of a potential nomination. One look forward to working with Senator ical and mental endurance to remain question on the form asks—under SESSIONS to ensure that the Senate deeply engaged in his Senate work. oath—whether: acts before adjourning. Work, for him, was integral to recov- There [is] anything in your personal life He is right: The overwhelming major- ery. As he wrote in an inspirational that could be used by someone to coerce or ity of the judicial nominees awaiting book on his health experiences, ‘‘Good blackmail you? Is there anything in your life final action have strong bipartisan sup- health is a precious possession that is that could cause an embarrassment to you or port. This makes the Republican ob- often taken for granted. The same is to the President if publicly known? If so, struction of their confirmation all the true of the time we have been given to please provide full details . . . more mystifying. Twenty-nine of the contribute to the world around us. The FBI also asks potential nominees judicial nominees whose confirmations Poor health may limit our time and ca- whether they are concealing any activ- are being stonewalled were not opposed pacity for achievement, but I firmly ity or conduct that could be used to in- by any Senator, Republican or Demo- believe that vigorous work provides the fluence, pressure, coerce or com- crat, during Judiciary Committee con- best way to overcome a health chal- promise them in any way or that would sideration. Two others had only one or lenge.’’ impact negatively on their character, two votes in opposition. Committee Re- Senator SPECTER, thank you for the reputation, judgment or discretion. publicans voted in lockstep to oppose inspiring example of your determina- Judge Porteous answered no to all of only 4 of the 38 pending nominations. I tion. Thank you for a long and produc- these questions. believe that if debated by the Senate, tive career in this body, a career that I am concerned about the vagueness those nominations, too, would be con- has meant much to the Senate, to and catchall nature of these questions firmed. Pennsylvania, and to the Nation. and its responses being the basis of an Had we adhered to the Golden Rule, f Article of Impeachment. I could under- the judicial nominees who have been stand an Article of Impeachment based delayed for weeks and months would PORTEOUS IMPEACHMENT on a response that hides information already be confirmed. That had been Mr. CARDIN. Mr. President, one of that if discovered later would be the our practice and tradition. Democratic the most solemn obligations of Sen- basis of impeachment and where a sep- Senators did not stall the nominees of ators is try impeachments. The Con- arate Article of Impeachment using President Bush in this way. Senate Re- stitution provides that the Senate these specific facts was not presented publicans should end their across the shall have the ‘‘sole power to try all to the Senate by the House of Rep- board blockade of noncontroversial ju- impeachments,’’ and that ‘‘all civil of- resentatives. Also, I would have under- dicial nominees. With 111 vacancies—a ficers of the United States shall be re- stood if the statements in article IV historically high number—plaguing our moved from office on impeachment’’ were included as part of article I. Such Federal courts today, the American for various offenses. Senators also take was not the case here. people cannot afford this gamesman- a special oath when hearing an im- For this reason, I voted not guilty on ship. peachment case before the Senate article IV. Despite these skyrocketing vacan- holds an impeachment trial. f cies, the Senate has not been permitted I recently heard evidence in the case by Republicans to consider a single ju- JUDICIAL NOMINATIONS of Judge Porteous, who would have dicial nomination since September 13, lifetime tenure under the Constitution Mr. LEAHY. Mr. President, I have when we confirmed Jane Stranch of unless he resigns or is removed by the been urging Republicans and Demo- Tennessee to the Sixth Circuit. Only Senate. The House of Representatives crats in the Senate to come together after 10 months of delay was the Sen- impeached Judge Porteous on four dif- and take action to begin to end the va- ate permitted to act. The Stranch nom- ferent articles. After deliberation, I cancy crisis that is threatening the ad- ination was the only nomination we voted to convict Judge Porteous of ministration of justice by our Federal were permitted to consider that entire three of the four articles, but voted courts. I asked only that Senators fol- work period. In fact, the Republican against conviction on one of the arti- low the Golden Rule. Regrettably that blockade of judicial nominations has cles. I rise to explain my not guilty has not happened. Now 38 judicial been so complete that the Senate has vote on one of the articles. nominees whose qualifications are well been permitted to confirm only five Article I stated that Judge Porteous established are being delayed. They Federal circuit and district court engaged in a pattern of conduct that is should be confirmed before we adjourn. nominations since the fourth of July incompatible with the trust and con- Adherence to the Golden Rule, a sim- recess. While one in eight Federal fidence placed in him as a Federal ple step, would help us return to our judgeships remains vacant, Senate Re- judge. The Senate voted that Judge Senate traditions, and allow the Sen- publicans consented to confirm only a Porteous was guilty on this count by a ate to better fulfill its responsibilities single judicial nomination in July. unanimous vote of 96 to 0. to the American people and the Federal They consented to consider only four Article IV stated that Judge judiciary. judicial nominations before the August Porteous knowingly made material I was encouraged last week when recess, despite 21 nominations then on false statements about his past both to Senator SESSIONS, the Judiciary Com- the calendar. We have considered only the U.S. Senate and to the Federal Bu- mittee’s ranking Republican, provided the Stranch nomination since return- reau of Investigation, in order to ob- assurance that the many judicial nomi- ing from that recess. I do not recall a tain the office of U.S. district court nees who have been stalled for months time when one party so thoroughly judge. The Senate voted to convict and months without Senate action will prevented the Senate from acting on Judge Porteous on this count by a vote be confirmed before we adjourn. He is consensus nominees with bipartisan of 90 to 6. in a position to know. As the Repub- support. I voted against article IV because, in lican leader on the committee, he I have been trying to end this ob- my view, it was duplicative of article I. works directly with the Republican struction, yet it continues. Democratic As a member of the Senate Judiciary leadership that continues to hold up Senators have sought agreement on the Committee, I regularly review the virtually all judicial nominees, just as floor to debate and consider nomina- questionnaire and nomination mate- it has for months and months. At our tions, but the Republican leadership rials for Federal judicial nominees who Judiciary Committee business meeting has objected time and time again. The are nominated for lifetime appoint- on December 1, Senator SESSIONS said: Democratic cloakroom has sought con- ments. One question we ask nominees ‘‘The truth is except for a few nomi- sent from the Republican cloakroom to on our committee questionnaire— nees, the overwhelming majority have move nominations, but there has been under oath—is whether there was ‘‘any moved with bipartisan unanimous sup- no consent. unfavorable information that may af- port and will be confirmed on the The Judiciary Committee has favor- fect your nomination.’’ Judicial nomi- floor.’’ He went on to predict that a ably reported 80 of President Obama’s

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8783 Federal circuit and district court with the support of their home State Graves of Mississippi was reported nominees. Due to Republican obstruc- Senators, both Republicans and Demo- unanimously to serve on the Fifth Cir- tion we have been able to consider only crats. The Judiciary Committee has cuit. These are not nominees whose ju- 41 of these. That is barely half. This is not proceeded with a single nominee dicial philosophy Republicans even in sharp contrast to the first 2 years of who was not supported by both home question. President Bush’s first term when I was State Senators, and I have worked with The President noted in his September chairman of the Judiciary Committee all Republican Senators to ensure that letter to Senate leaders that the ‘‘real and the Senate confirmed all 100 of the they were included in the process. harm of this political game-playing judicial nominations reported by the Democrats have worked to restore falls on the American people, who turn Judiciary Committee to the Senate. In comity to the process. to the courts for justice’’ and that the 2002, we proceeded in the lameduck ses- Regrettably, despite these efforts and unnecessary delay in considering these sion after the election to confirm 20 of the outstanding nominees before us, noncontroversial nominations ‘‘is un- President Bush’s judicial nomi- the Senate is not promptly considering dermining the ability of our courts to nees.This year by contrast none have judicial nominations. To the contrary, deliver justice to those in need . . . been considered since the November as the President has pointed out, nomi- from working mothers seeking timely elections. nees are being stalled who, if allowed compensation for their employment I have also urged for many months to be considered, would receive unani- discrimination claims to communities that the Senate debate and vote on mous or near unanimous support, be hoping for swift punishment for per- those few nominees that some Repub- confirmed, and be serving in the ad- petrators of crimes to small business lican Senators decided to oppose in ministration of justice throughout the owners seeking protection from unfair committee. These nominees include country. and anticompetitive practices.’’ If the Senate were allowed to con- Benita Pearson of Ohio, William Mar- The North Carolina Bar Association sider the 38 judicial nominees that are tinez of Colorado, Louis Butler of Wis- recently urged the Senate to consider one of the nominees who was reported currently on the Senate’s Executive consin, Edward Chen of California, Calendar, their confirmations would John McConnell of Rhode Island, and by the Judiciary Committee in a unan- imous rollcall vote—19 to zero. Repub- raise the total from the historically Goodwin Liu of California. I have re- low level of 41, where it currently viewed their records and considered licans have objected to his consider- ation since January 28. For more than stands, to almost 80. That would be in their character, background and quali- the range of judicial confirmations fications. I have heard the criticisms of 10 months, Judge Albert Diaz, a re- spected and experienced jurist who during President George H.W. Bush’s the Republican Senators on the Judici- first 2 years, 70, while resting below ary Committee as they have voted served in the Armed Forces, has been prevented from serving the people of President Reagan’s first 2 years, 87, and against this handful of nominees. I dis- pale in comparison to the 100 confirmed agree, and believe the Senate would North Carolina and the Fourth Circuit. He is nominated to fill a judicial emer- in the first 2 years of the George W. vote, as I have, to confirm them. Each Bush administration or those con- gency vacancy on the Fourth Circuit. of these nominees has been reported fa- firmed during President Clinton’s first He has the support of both his home vorably by the Judiciary Committee, 2 years, 127. several of them two or three times, and state Senators, one a Democrat and In the 17 months I chaired the Judici- each deserves an up or down vote. That one a Republican. Senator BURR asked ary Committee during President Bush’s they will not be conservative activist nearly a year ago that the Judiciary first 2 years in office, I scheduled 26 judges should not disqualify them from Committee ‘‘look for an expedited re- hearings for the judicial nominees of a serving. view and referral to the full Senate so Republican President and the Judici- But that is not what is happening. that that deficiency on the fourth cir- ary Committee worked diligently to We are not debating the merits of those cuit can be filled.’’ The Senators who consider them. During the 2 years of nominations, as Democratic Senators serve on the Judiciary Committee from the Obama administration, I have tried did when we opposed the most extreme South Carolina and Maryland, states to maintain that same approach. The handful of nominees of President Bush. also within the Fourth Circuit, also committee held 25 hearings for Presi- What is new and particularly damaging support him. The American Bar Asso- dent Obama’s Federal circuit and dis- about this Republican strategy of ob- ciation rated him well qualified. The trict court nominees this Congress. I struction is that dozens of nominees re- North Carolina Bar Association de- have not altered my approach and nei- ported unanimously by the Senate Ju- scribes him as ‘‘very qualified and ther have Senate Democrats. What has diciary Committee, without Repub- highly regarded.’’ When will the block- changed is that Senate Republicans, lican opposition, are still being de- ade be lifted so that the Senate can who used to contend that every judicial layed. confirm Judge Albert Diaz of North nominee reported by the Judiciary The Senate has received letters from Carolina? Committee is entitled to a vote, have Chief Judges of the Ninth Circuit Court Judge Diaz and six other consensus reversed themselves and reverted to of Appeals and the United States Dis- nominees to the circuit courts are the practices they followed in obstruct- trict Courts in California, Colorado, Il- stalled on the Senate Executive Cal- ing President Clinton’s judicial nomi- linois and the District of Columbia. endar. Judge Ray Lohier of New York nees. The bottom line is that the Sen- They have all pleaded with us to end would fill one of the four current va- ate has been allowed to consider and the blockade and confirm judges nomi- cancies on the United States Court of confirm just 41 Federal circuit and dis- nated to fill vacancies in their courts. Appeals for the Second Circuit. He is trict court nominees. That is less than The vacancies on the Federal courts another former prosecutor with sup- half of the 100 such nominees we pro- around the country have doubled over port from both sides of the aisle. His ceeded to confirm during President the last 2 years and now are at the his- confirmation has been stalled for no Bush’s first 2 years. torically high level of 111. Fifty-one of good reason for more than 6 months. When I became chairman of the Judi- these vacancies have been deemed judi- Scott Matheson is a nominee from ciary Committee midway through cial emergency vacancies by the non- Utah supported by Senator HATCH; he President Bush’s first tumultuous year partisan Administrative Office of the was reported without opposition. Mary in office, I worked very hard to make U.S. Courts. Due to the Republicans’ Murguia, a nominee from Arizona sup- sure Senate Democrats did not perpet- obstruction, we have not been able to ported by Senator KYL, was reported uate the ‘‘judge wars’’ as tit-for-tat. By keep up with attrition over the last 2 without opposition. Judge Kathleen refusing to proceed on President Clin- years. O’Malley of Ohio is nominated to the ton’s nominations while judicial vacan- No one can accuse this President of Federal Circuit and was reported with- cies skyrocketed during the 6 years selecting nominees to meet an ideolog- out opposition. Susan Carney of Con- they controlled the pace of nomina- ical agenda. Senator SESSIONS has ac- necticut was reported with the bipar- tions, Senate Republicans allowed judi- knowledged that a vast majority of tisan support of 17 of the 19 Senators cial vacancies to rise to 110 by the end these nominees are consensus nomi- on the Judiciary Committee to serve of the Clinton administration. As a re- nees. These are well-qualified nominees on the Second Circuit. Justice James sult of their strategy, Federal circuit

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8784 CONGRESSIONAL RECORD — SENATE December 10, 2010 court vacancies doubled. When Demo- Miceli, who passed away on September joined Community Bank. Later, in 2002, crats regained the Senate majority 16, 2010. He was a champion of justice, he became the executive director of the halfway into President Bush’s first leader of city restoration projects, and Blount County-Oneonta Chamber of year in office, we turned away from preserver of the history of the city of Commerce, a position that brought him these bad practices. As a result, overall Riverside, CA—his adopted hometown joy and satisfaction. He was deeply judicial vacancies were reduced during for which he worked diligently for committed to his community and I the Bush years from more than 10 per- nearly half a century. know that he enjoyed promoting it cent to less than 4 percent. During the After graduating from the University through his position with the chamber. Bush years, the Federal court vacan- of Pittsburgh Law School in 1952 and While Charles had great success in cies were reduced from 110 to 34 and serving as the judge advocate general his career, he was first and foremost a Federal circuit court vacancies were in the U.S. Army, Vincent Miceli relo- family man. He was devoted to his reduced from a high of 32 down to sin- cated to Riverside in 1961. He opened a cherished wife and son and enjoyed gle digits. private civil practice, which he main- spending time with his extended fam- This progress has not continued with tained until he was appointed by Gov- ily. He is survived by his wife Brenda a Democratic President back in office. ernor George Deukmejian to the Supe- Maynor Carr of Union Grove; son Jona- Instead, Senate Republicans have re- rior Court in 1986. Throughout his ten- than Elliott Carr of Washington, DC; turned to the strategy they used during ure, during which he served as a pre- and two brothers, Jim Carr of Oneonta the Clinton administration of blocking siding judge, he rendered decisions in and Ken Carr of Houston, TX. the nominations of a Democratic Presi- many high-profile cases, including I ask my colleagues to join me in rec- dent, again leading to skyrocketing va- those involving local politics, city ognizing and honoring the life of my cancies. Last year the Senate con- growth, and environmental issues. friend, Charles Carr. He will be greatly firmed only 12 Federal circuit and dis- Judge Miceli’s civic involvement in- missed by all who knew him.∑ trict court judges, the lowest total in cluded establishing Federal and State f 50 years. This year we have yet to con- appellate courthouses in downtown firm 30 Federal circuit and district Riverside, shaping this area as a jus- MESSAGE FROM THE HOUSE judges. We are not even keeping up tice center enhanced by $100 million in ENROLLED BILLS SIGNED with retirements and attrition. As a re- new construction. He also spearheaded sult, judicial vacancies are now at 111, restoration of the historic 1903 Beaux At 10:03 a.m., a message from the again more than 10 percent. Arts courthouse on the city’s Main House of Representatives, delivered by Regrettably, the Senate is not being Street and contributed to the restora- Mrs. Cole, one of its reading clerks, an- allowed to consider the consensus, tion and preservation of the city’s his- nounced that the Speaker has signed mainstream judicial nominees favor- toric Evergreen Cemetery. In the words the following enrolled bills: ably reported from the Judiciary Com- of retired appellate Judge John S. 3998. An act to extend the Child Safety mittee. It has taken nearly five times Gabbert: ‘‘His contributions to the City Pilot Program. and County of Riverside have just been H.R. 4994. An act to extend certain expiring as long to consider President Obama’s provisions of the Medicare and Medicaid pro- judicial nominations as it did to con- beyond measure.’’ grams, and for other purposes. sider President Bush’s during his first 2 I extend my heartfelt condolences to The enrolled bills were subsequently years in office. During the first 2 years Judge Miceli’s family, friends, and col- signed by the President pro tempore of the Bush administration, the 100 leagues. He will be truly missed.∑ (Mr. INOUYE). judges confirmed were considered by f f the Senate an average of 25 days from REMEMBERING CHARLES RAY being reported by the Judiciary Com- CARR mittee. The average time for confirmed MEASURES READ THE FIRST TIME circuit court nominees was 26 days. By ∑ Mr. SHELBY. Mr. President, I wish The following bill was read the first contrast, if the Senate were allowed to to pay tribute to Charles Carr, who time: consider the 34 judicial nominees being passed away on December 2, 2010, fol- S. 4023. A bill to provide for the repeal of stalled by Republican objection and lowing a life dedicated to service, fam- the Department of Defense policy concerning they were all confirmed this week, the ily, and his community. He was a per- homosexuality in the Armed Forces known average time Federal circuit and dis- sonal friend and, along with his family, as ‘‘Don’t Ask, Don’t Tell’’. I mourn his passing. trict and circuit court judges have been f forced to wait after being considered A native of Blount County, AL, and favorably recommended by the Ju- Charles was a graduate of Oneonta ENROLLED BILL PRESENTED High School and Snead State Junior diciary Committee since President The Secretary of the Senate reported College. After earning his bachelor’s Obama took office would be five times that on today, December 10, 2010, she and master’s degree in education from that of those confirmed during the first had presented to the President of the Auburn University, Charles began his 2 years of the Bush administration. United States the following enrolled distinguished career as an educator in Time is running out in this Congress bill: for Republicans to turn away from the the Blount County public schools. Later, he taught at Snead State Junior S. 3998. An act to extend the Child Safety disastrous strategy of blocking nomi- Pilot Program. nations across the board. The Senate’s College and Wallace State Community longstanding traditions demand that College. Charles was a well-liked and f we reject this practice of obstruction. admired educator by his former col- leagues and students. EXECUTIVE AND OTHER The Federal courts are suffering from COMMUNICATIONS rising vacancies and crushing case- After serving 13 years in the class- loads. The victims are the American room, his love of teaching and public The following communications were people who depend on the courts for service led him to Alabama’s State laid before the Senate, together with justice. capitol where he served on the staff accompanying papers, reports, and doc- and in the cabinet for Governors uments, and were referred as indicated: f George Wallace and Guy Hunt as the EC–8407. A communication from the Direc- ADDITIONAL STATEMENTS director of postsecondary education. tor of the Regulatory Management Division, There, he also served as a mentor to Office of Policy, Economics, and Innovation, many of those who would cross his path Environmental Protection Agency, transmit- REMEMBERING JUDGE VINCENT and give a helping hand to those who ting, pursuant to law, the report of a rule en- titled ‘‘Pesticide Tolerance Crop Grouping MICELI felt they did not have a voice. In doing ∑ Program II; Revisions to General Tolerance Mrs. BOXER. Mr. President, I ask my so, he built a wide network of friends Regulations’’ (FRL No. 8853–8) received in colleagues to recognize the extraor- across the State. the Office of the President of the Senate on dinary legacy of the late retired River- After leaving the government to December 7, 2010; to the Committee on Agri- side Superior Court Judge Victor work as a private consultant, Charles culture, Nutrition, and Forestry.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8785 EC–8408. A communication from the Direc- drawal of Regulatory Guide 1.39’’ (NRC–2010– General and Plastic Surgery Devices; Classi- tor of the Policy Issuances Division, Food 0354) received in the Office of the President fication of Non-Powered Suction Apparatus Safety and Inspection Service, Department of the Senate on December 7, 2010; to the Device Intended for Negative Pressure of Agriculture, transmitting, pursuant to Committee on Environment and Public Wound Therapy’’ (Docket No. FDA–2010–N– law, the report of a rule entitled ‘‘Permis- Works. 0513) received in the Office of the President sion to Use Air Inflation of Meat Carcasses EC–8417. A communication from the Direc- of the Senate on December 7, 2010; to the and Parts’’ (RIN0583–AD33) received in the tor of Congressional Affairs, Nuclear Regu- Committee on Health, Education, Labor, and Office of the President of the Senate on De- latory Commission, transmitting, pursuant Pensions. cember 7, 2010; to the Committee on Agri- to law, the report of a rule entitled ‘‘Mis- EC–8425. A communication from the Assist- culture, Nutrition, and Forestry. cellaneous Administrative Changes’’ ant Secretary, Bureau of Legislative Affairs, EC–8409. A communication from the Assist- ((RIN3150–AH49)(NRC–2009–0085)) received in Department of State, transmitting, pursuant ant Secretary, Office of Legislative Affairs, the Office of the President of the Senate on to law, the semiannual report on the contin- Department of State, transmitting, pursuant December 7, 2010; to the Committee on Envi- ued compliance of Azerbaijan, Kazakhstan, to law, a six-month periodic report relative ronment and Public Works. Moldova, the Russian Federation, to the national emergency that was declared EC–8418. A communication from the Direc- Tajikistan, and Uzbekistan with the 1974 in Executive Order 12938 with respect to the tor of Congressional Affairs, Nuclear Regu- Trade Act’s freedom of emigration provi- proliferation of weapons of mass destruction; latory Commission, transmitting, pursuant sions, as required under the Jackson-Vanik to the Committee on Banking, Housing, and to law, the report of a rule entitled ‘‘Notice Amendment; to the Committee on Foreign Urban Affairs. of Availability of Model Application and Relations. EC–8410. A communication from the Asso- Safety Evaluation for Plant-Specific Adop- EC–8426. A communication from the Chief ciate Director, Office of Foreign Assets Con- tion of TSTF–431, ’Change in Technical Spec- Financial Officer, Farm Credit System In- trol, Department of the Treasury, transmit- ifications End States (BAW–2441)’ ’’ (NUREG– surance Corporation, transmitting, pursuant ting, pursuant to law, the report of a rule en- 1430) received in the Office of the President to law, a report relative to the requirements titled ‘‘Global Terrorism Sanctions Regula- of the Senate on December 7, 2010; to the of the Federal Managers’ Financial Integrity tions; Terrorism Sanctions Regulations; For- Committee on Environment and Public Act and the Inspector General Act of 1978; to eign Terrorist Organizations Sanctions Reg- Works. the Committee on Homeland Security and ulations’’ (31 CFR Parts 594, 595, and 597) re- EC–8419. A communication from the Direc- Governmental Affairs. ceived in the Office of the President of the tor of the Regulatory Management Division, EC–8427. A communication from the Dis- Senate on December 7, 2010; to the Com- Office of Policy, Economics, and Innovation, trict of Columbia Auditor, transmitting, pur- mittee on Banking, Housing, and Urban Af- Environmental Protection Agency, transmit- suant to law, a report entitled, ‘‘Compara- fairs. ting, pursuant to law, the report of a rule en- tive Analysis of Actual Cash Collections to EC–8411. A communication from the Assist- titled ‘‘Action to Ensure Authority to Issue the Revised Revenue Estimate Through the ant to the Board of Governors of the Federal Permits under the Prevention of Significant 3rd Quarter of Fiscal Year 2010’’; to the Com- Reserve System, transmitting, pursuant to Deterioration Program to Sources of Green- mittee on Homeland Security and Govern- law, the report of a rule entitled ‘‘Regulation house Gas Emissions: Finding of Substantial mental Affairs. Z (Truth in Lending)—Interim Final Rule; Inadequacy and SIP Call’’ (FRL No. 9236–3) EC–8428. A communication from the Sec- Request for Public Comment’’ (Docket No. received in the Office of the President of the retary of Transportation, transmitting, pur- R–1394) received in the Office of the Presi- Senate on December 7, 2010; to the Com- suant to law, the Semi-Annual Report of the dent of the Senate on December 7, 2010; to mittee on Environment and Public Works. Inspector General for the period from April the Committee on Banking, Housing, and EC–8420. A communication from the Direc- 1, 2010 through September 30, 2010; to the Urban Affairs. tor of the Regulatory Management Division, Committee on Homeland Security and Gov- EC–8412. A communication from the Attor- Office of Policy, Economics, and Innovation, ernmental Affairs. ney, Office of the General Counsel, Federal Environmental Protection Agency, transmit- EC–8429. A communication from the Chair- Energy Regulatory Commission, transmit- ting, pursuant to law, the report of a rule en- man of the Broadcasting Board of Governors, ting, pursuant to law, the report of a rule en- titled ‘‘Methods for Measurement of Filter- transmitting, pursuant to law, the Semi- titled ‘‘System Personnel Training Reli- able PM10 and PM2.5 and Measurement of annual Report of the Board’s Inspector Gen- ability Standards’’ (Docket No. RM09–25–000) Condensable PM Emissions from Stationary eral for the period from April 1, 2010 through received in the Office of the President of the Sources’’ (FRL No. 9236–2) received in the Of- September 30, 2010; to the Committee on Senate on December 7, 2010; to the Com- fice of the President of the Senate on Decem- Homeland Security and Governmental Af- mittee on Energy and Natural Resources. ber 7, 2010; to the Committee on Environ- fairs. EC–8413. A communication from the Assist- ment and Public Works. EC–8430. A communication from the Sec- ant Secretary of Land and Minerals Manage- EC–8421. A communication from the Rail- retary of Health and Human Services, trans- ment, Bureau of Ocean Energy Management, road Retirement Board, transmitting, pursu- mitting, pursuant to law, the Department of Regulation, and Enforcement, Department of ant to law, the 2010 Annual Actuarial Report Health and Human Services Office of Inspec- the Interior, transmitting, pursuant to law, Required by Section 22 of the Railroad Re- tor General’s Semiannual Report for the pe- the report of a rule entitled ‘‘Increased Safe- tirement Act of 1974 and Section 502 of the riod of April 1, 2010 through September 30, ty Measures for Energy Development on the Railroad Retirement Solvency Act of 1983; to 2010; to the Committee on Homeland Secu- Outer Continental Shelf (OCS)’’ (RIN1010– the Committee on Health, Education, Labor, rity and Governmental Affairs. AD68) received in the Office of the President and Pensions. EC–8431. A communication from the Chair- of the Senate on December 7, 2010; to the EC–8422. A communication from the Direc- man of the Federal Maritime Commission, Committee on Energy and Natural Re- tor, Office of Labor-Management Standards, transmitting, pursuant to law, the Office of sources. Department of Labor, transmitting, pursu- Inspector General’s Semiannual Report for EC–8414. A communication from the Assist- ant to law, the report of a rule entitled ‘‘Re- the period of April 1, 2010 through September ant General Counsel for Legislation, Regula- scission of Form T–1, Trust Annual Report; 30, 2010; to the Committee on Homeland Se- tion and Energy Efficiency, Department of Requiring Subsidiary Organization Report- curity and Governmental Affairs. Energy, transmitting, pursuant to law, the ing on the Form LM–2, Labor Organization EC–8432. A communication from the Chair report of a rule entitled ‘‘Conduct of Em- Annual Report; Modifying Subsidiary Orga- of the U.S. Equal Employment Opportunity ployees and Former Employees; Exemption nization Reporting on the Form LM–3, Labor Commission, transmitting, pursuant to law, From Post-Employment Restrictions for Organization Annual Report; LMRDA Cov- the Semi-Annual Report of the Inspector Communications Furnishing Scientific or erage of Intermediate Labor Organizations; General for the period from April 1 , 2010 Technological Information’’ (RIN1990–AA31) Final Rule’’ (RIN1215–AB75; RIN1245–AA02) through September 30, 2010 and the Semi-An- received in the Office of the President of the received in the Office of the President of the nual Management Report for the period end- Senate on December 7, 2010; to the Com- Senate on December 7, 2010; to the Com- ing September 30, 2010; to the Committee on mittee on Energy and Natural Resources. mittee on Health, Education, Labor, and Homeland Security and Governmental Af- EC–8415. A communication from the Direc- Pensions. fairs. tor of Regulations, Social Security Adminis- EC–8423. A communication from the Sec- EC–8433. A communication from the Direc- tration, transmitting, pursuant to law, the retary of Health and Human Services, trans- tor, Office of Personnel Management, trans- report of a rule entitled ‘‘Regulations Re- mitting, pursuant to law, the Department’s mitting, pursuant to law, the Semiannual garding Income-Related Monthly Adjust- Fiscal Year 2007 Low Income Home Energy Report of the Inspector General for the pe- ment Amounts to Medicare Beneficiaries’ Assistance Program (LIHEAP) Report; to the riod from April 1, 2010 through September 30, Prescription Drug Coverage Premiums’’ Committee on Health, Education, Labor, and 2010 and the Management Response for the (RIN0960–AH22) received in the Office of the Pensions. period ending September 30 , 2010; to the President of the Senate on December 7, 2010; EC–8424. A communication from the Dep- Committee on Homeland Security and Gov- to the Committee on Finance. uty Director of Regulations and Policy Man- ernmental Affairs. EC–8416. A communication from the Direc- agement Staff, Food and Drug Administra- EC–8434. A communication from the Staff tor of Congressional Affairs, Nuclear Regu- tion, Department of Health and Human Serv- Director, United States Commission on Civil latory Commission, transmitting, pursuant ices, transmitting, pursuant to law, the re- Rights, transmitting, pursuant to law, the to law, the report of a rule entitled ‘‘With- port of a rule entitled ‘‘Medical Devices; report of the appointment of members to the

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00057 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8786 CONGRESSIONAL RECORD — SENATE December 10, 2010 Kentucky Advisory Committee; to the Com- President of the Senate on December 9, 2010; of Homeland Security, transmitting, pursu- mittee on the Judiciary. to the Committee on Commerce, Science, ant to law, the report of a rule entitled EC–8435. A communication from the Acting and Transportation. ‘‘Drawbridge Operation Regulation; Atlantic Director of the Office of Sustainable Fish- EC–8443. A communication from the Attor- Intracoastal Waterway, Beufort, SC’’ eries, National Marine Fisheries Service, De- ney Advisor, U.S. Coast Guard, Department ((RIN1625–AA09) (Docket No. USCG–2009– partment of Commerce, transmitting, pursu- of Homeland Security, transmitting, pursu- 1075)) received in the Office of the President ant to law, the report of a rule entitled ant to law, the report of a rule entitled of the Senate on December 9, 2010; to the ‘‘Fisheries of the Exclusive Economic Zone ‘‘Safety Zone; Blue Angels at Kaneohe Bay Committee on Commerce, Science, and Off Alaska; Pacific Cod in the Western Regu- Air Show, Oahu, HI’’ ((RIN1625–AA00) (Dock- Transportation. latory Area of the Gulf of Alaska’’ (RIN0648– et No. USCG–2010–0705)) received in the Office EC–8452. A communication from the Attor- XA051) received in the Office of the President of the President of the Senate on December ney Advisor, U.S. Coast Guard, Department of the Senate on December 7, 2010; to the 9, 2010; to the Committee on Commerce, of Homeland Security, transmitting, pursu- Committee on Commerce, Science, and Science, and Transportation. ant to law, the report of a rule entitled ‘‘No- Transportation. EC–8444. A communication from the Attor- tification of Arrival in U.S. Ports; Certain EC–8436. A communication from the Acting ney Advisor, U.S. Coast Guard, Department Dangerous Cargoes’’ ((RIN1625–AA93) (Dock- Director of the Office of Sustainable Fish- of Homeland Security, transmitting, pursu- et No. USCG–2004–19963)) received in the Of- eries, National Marine Fisheries Service, De- ant to law, the report of a rule entitled fice of the President of the Senate on Decem- partment of Commerce, transmitting, pursu- ‘‘Safety Zone; Monte Foundation Firework ber 9, 2010; to the Committee on Commerce, ant to law, the report of a rule entitled Display, Monterey, CA’’ ((RIN1625–AA00) Science, and Transportation. ‘‘Fisheries of the Exclusive Economic Zone (Docket No. USCG–2010–0620)) received in the f Off Alaska; Big Skate in the Central Regu- Office of the President of the Senate on De- latory Area of the Gulf of Alaska’’ (RIN0648– cember 9, 2010; to the Committee on Com- REPORTS OF COMMITTEES XA066) received in the Office of the President merce, Science, and Transportation. The following reports of committees of the Senate on December 7, 2010; to the EC–8445. A communication from the Attor- Committee on Commerce, Science, and ney Advisor, U.S. Coast Guard, Department were submitted: Transportation. of Homeland Security, transmitting, pursu- By Mr. LIEBERMAN, from the Committee EC–8437. A communication from the Acting ant to law, the report of a rule entitled on Homeland Security and Governmental Af- Director of the Office of Sustainable Fish- ‘‘Safety Zone; Interstate 5 Bridge Repairs, fairs: eries, National Marine Fisheries Service, De- Columbia River, Portland, OR’’ ((RIN1625– Special Report entitled ‘‘Activities of the partment of Commerce, transmitting, pursu- AA00) (Docket No. USCG–2010–0895)) received Committee on Homeland Security and Gov- ant to law, the report of a rule entitled in the Office of the President of the Senate ernmental Affairs’’ (Rept. No. 111—360). ‘‘Fisheries of the Exclusive Economic Zone on December 9, 2010; to the Committee on By Mrs. BOXER, from the Committee on Off Alaska; Longnose Skate in the Western Commerce, Science, and Transportation. Environment and Public Works, with an Regulatory Area of the Gulf of Alaska’’ EC–8446. A communication from the Attor- amendment in the nature of a substitute: (RIN0648–XA067) received in the Office of the ney Advisor, U.S. Coast Guard, Department S. 787. A bill to amend the Federal Water President of the Senate on December 7, 2010; of Homeland Security, transmitting, pursu- Pollution Control Act to clarify the jurisdic- to the Committee on Commerce, Science, ant to law, the report of a rule entitled tion of the United States over waters of the and Transportation. ‘‘Safety Zone; IJSBA World Finals, Lower United States (Rept. No. 111—361). EC–8438. A communication from the Attor- Colorado River, Lake Havasu, AZ’’ By Mr. ROCKEFELLER, from the Com- ney Advisor, U.S. Coast Guard, Department ((RIN1625–AA00) (Docket No. USCG–2010– mittee on Commerce, Science, and Transpor- of Homeland Security, transmitting, pursu- 0509)) received in the Office of the President tation, with an amendment in the nature of ant to law, the report of a rule entitled ‘‘Se- of the Senate on December 9, 2010; to the a substitute: curity Zones; Sabine Bank Channel, Sabine Committee on Commerce, Science, and S. 1748. A bill to establish a program of re- Pass Channel and Sabine-Neches Waterway, Transportation. search, recovery, and other activities to pro- TX’’ ((RIN1625–AA87) (Docket No. USCG– EC–8447. A communication from the Attor- vide for the recovery of the southern sea 2009–0316)) received in the Office of the Presi- ney Advisor, U.S. Coast Guard, Department otter (Rept. No. 111—362). dent of the Senate on December 9, 2010; to of Homeland Security, transmitting, pursu- S. 3605. A bill to invest in innovation the Committee on Commerce, Science, and ant to law, the report of a rule entitled through research and development, to im- Transportation. ‘‘Safety Zone; New York Air Show at Jones prove the competitiveness of the United EC–8439. A communication from the Attor- Beach State Park, Atlantic Ocean Off of States, and for other purposes (Rept. No. ney Advisor, U.S. Coast Guard, Department Jones Beach, Wantagh, NY’’ ((RIN1625–AA00) 111—363). of Homeland Security, transmitting, pursu- (Docket No. USCG–2010–0138)) received in the By Mr. LIEBERMAN, from the Committee ant to law, the report of a rule entitled ‘‘Se- Office of the President of the Senate on De- on Homeland Security and Governmental Af- curity Zone, in the vicinity of the Michoud cember 9, 2010; to the Committee on Com- fairs, with an amendment in the nature of a Slip Position....’’ ((RIN1625–AA87) (Docket merce, Science, and Transportation. substitute: No. USCG–2010–0846)) received in the Office of EC–8448. A communication from the Attor- S. 3806. A bill to protect Federal employees the President of the Senate on December 9, ney Advisor, U.S. Coast Guard, Department and visitors, improve the security of Federal 2010; to the Committee on Commerce, of Homeland Security, transmitting, pursu- facilities and authorize and modernize the Science, and Transportation. ant to law, the report of a rule entitled Federal Protective Service. EC–8440. A communication from the Attor- ‘‘Natchez Fireworks Safety Zone; Lower Mis- f ney Advisor, U.S. Coast Guard, Department sissippi River, Mile Marker 365.5 to Mile of Homeland Security, transmitting, pursu- Marker 363, Natchez, MS’’ ((RIN1625–AA00) INTRODUCTION OF BILLS AND ant to law, the report of a rule entitled ‘‘Se- (Docket No. USCG–2010–0872)) received in the JOINT RESOLUTIONS curity Zones; Captain of the Port Buffalo Office of the President of the Senate on De- The following bills and joint resolu- Zone; Technical Amendment’’ ((RIN1625– cember 9, 2010; to the Committee on Com- AA87) (Docket No. USCG–2010–0821)) received merce, Science, and Transportation. tions were introduced, read the first in the Office of the President of the Senate EC–8449. A communication from the Attor- and second times by unanimous con- on December 9, 2010; to the Committee on ney Advisor, U.S. Coast Guard, Department sent, and referred as indicated: Commerce, Science, and Transportation. of Homeland Security, transmitting, pursu- By Mr. LIEBERMAN (for himself, Mr. EC–8441. A communication from the Attor- ant to law, the report of a rule entitled UDALL of Colorado, Mrs. GILLIBRAND, ney Advisor, U.S. Coast Guard, Department ‘‘Shipping; Technical, Organizational, and Ms. COLLINS, Mrs. LINCOLN, Mrs. of Homeland Security, transmitting, pursu- Conforming Amendments’’ ((RIN1625–ZA27) FEINSTEIN, Mr. LEAHY, Mr. REID, Mr. ant to law, the report of a rule entitled (Docket No. USCG–2010–0759)) received in the FRANKEN, Mr. BINGAMAN, Mrs. MUR- ‘‘Navigation and Navigable Waters; Tech- Office of the President of the Senate on De- RAY, Mr. LAUTENBERG, Mr. COONS, nical, Organizational, and Conforming cember 9, 2010; to the Committee on Com- Mr. KERRY, Mr. DODD, Mr. AKAKA, Amendments, Sector Puget Sound, WA; Cor- merce, Science, and Transportation. Mr. CARDIN, Mr. WHITEHOUSE, Mrs. rection’’ ((RIN1625–ZA25) (Docket No. USCG– EC–8450. A communication from the Attor- BOXER, Mr. UDALL of New Mexico, 2010–0351)) received in the Office of the Presi- ney Advisor, U.S. Coast Guard, Department Mr. BENNET, Mr. HARKIN, Mr. MENEN- dent of the Senate on December 9, 2010; to of Homeland Security, transmitting, pursu- DEZ, Mr. LEVIN, Mr. MERKLEY, Mr. the Committee on Commerce, Science, and ant to law, the report of a rule entitled DURBIN, Mr. WYDEN, and Mr. BROWN Transportation. ‘‘Regulated Navigation Area; Reserved Chan- of Ohio): EC–8442. A communication from the Attor- nel, Boston Harbor, Boston, MA’’ ((RIN1625– S. 4023. A bill to provide for the repeal of ney Advisor, U.S. Coast Guard, Department AA00) (Docket No. USCG–2010–0886)) received the Department of Defense policy concerning of Homeland Security, transmitting, pursu- in the Office of the President of the Senate homosexuality in the Armed Forces known ant to law, the report of a rule entitled on December 9, 2010; to the Committee on as ‘‘Don’t Ask, Don’t Tell″; read the first ‘‘Safety Zone; Ledge Removal Project, Bass Commerce, Science, and Transportation. time. Harbor, Maine’’ ((RIN1625–AA00) (Docket No. EC–8451. A communication from the Attor- By Mr. WYDEN (for himself and Ms. USCG–2010–0806)) received in the Office of the ney Advisor, U.S. Coast Guard, Department SNOWE):

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00058 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8787 S. 4024. A bill to reduce the costs of pre- Enhancements for Needed Drugs Act, velopment; and for any fallback pre- scription drugs for Medicare beneficiaries the MEND Act, with my colleague, scription plan that Medicare must pro- and to guarantee access to comprehensive Senator OLYMPIA SNOWE. One of the vide. In addition, this legislation re- prescription drug coverage under part D of most important promises of the origi- quires the Secretary to provide a fall- the Medicare program, and for other pur- poses; to the Committee on Finance. nal Medicare Part D debate, and from back plan if there is not comprehensive By Mr. MENENDEZ (for himself, Mr. the more recent health reform debate, coverage, including coverage for the HARKIN, Mr. KERRY, Mr. LEVIN, Mr. is to drive cost containment in the so-called ‘‘doughnut hole’’, available in LIEBERMAN, Ms. STABENOW, Ms. MI- field of prescription drugs. Allowing a region. KULSKI, and Mr. DODD): Medicare to negotiate for drug prices I have always believed that negoti- S.J. Res. 41. A joint resolution proposing would be a groundbreaking cost con- ating is not a one-size-fits-all propo- an amendment to the Constitution of the tainment measure for a senior who sition. That is why my good friend, United States relative to equal rights for might otherwise be bankrupted by Senator SNOWE, and I have repeatedly men and women; to the Committee on the proposed language that includes no Judiciary. their prescription drug costs. The legis- lation introduced today clearly pro- uniform formulary. This legislation f hibits price setting or the creation of a emphasizes the concept of ‘‘bargaining SUBMISSION OF CONCURRENT AND uniform formulary. It simply allows power’’—not price controls, not rules SENATE RESOLUTIONS the Medicare program to be a smart set in Washington, DC, not a one-size- The following concurrent resolutions shopper by allowing Medicare to go fits-all approach, nothing that would and Senate resolutions were read, and into the market and use its clout just discourage innovation among pharma- referred (or acted upon), as indicated: like any other big purchaser. ceutical companies, but simply ‘‘bar- Certainly, there is a significant gaining power.’’ By Mr. SCHUMER (for himself and Mr. All Americans are affected by pre- BENNETT): group of special interests in this town S. Res. 700. A resolution to provide for the that do not want the Federal Govern- scription drug costs. Particularly hard approval of final regulations issued by the ment to be a smart shopper. The num- hit are older people, particularly low- Office of Compliance to implement the Vet- ber of lobbyists that have worked income older people, and people with erans Employment Opportunities Act of 1998 against this legislation over the years large prescription drug bills. AARP that apply to the Senate and employees of has been just staggering. For example, publishes an annual Rx Watchdog re- the Senate; considered and agreed to. the Center for Responsive Politics esti- port. They note that for the nearly 200 By Mr. SCHUMER (for himself and Mr. mated that last year the pharma- brand-name medications most com- BENNETT): S. Con. Res. 77. A concurrent resolution to ceutical industry spent over $250 mil- monly used by older people, the costs provide for the approval of final regulations lion for lobbying to squash initiatives of those medicines had gone up by 9.7 issued by the Office of Compliance to imple- such as this. And make no mistake percent over a recent 12-month period, ment the Veterans Employment Opportuni- about what the special interests who even though the general inflation rate ties Act of 1998 that apply to certain legisla- oppose this legislation want to do. was below 1 percent. This situation is tive branch employing offices and their cov- They would rather soak senior citizens unreasonable and unsustainable, and it ered employees; considered and agreed to. and the taxpayers and add to the budg- is hurting our most vulnerable citizens. f et deficit than to have to negotiate As noted by AARP, seniors are affected ADDITIONAL COSPONSORS with the Federal Government. more than any other segment of the According to CMS actuaries, the U.S. population by prescription drug S. 167 Medicare Part D drug benefit is already cost. Every dollar we can save for a At the request of Mr. KOHL, the name funded with over $50 billion a year in senior citizen is also a dollar saved for of the Senator from Pennsylvania (Mr. taxpayer dollars and will cost the the taxpayers, and when you are talk- CASEY) was added as a cosponsor of S. country substantially more in the fu- ing about nearly 30 million seniors en- 167, a bill to amend the Omnibus Crime ture. To be good stewards of taxpayer rolled in Part D coverage, that starts Control and Safe Streets Act of 1968 to dollars, to be able to strengthen the to add up to real money for the Medi- enhance the COPS ON THE BEAT program and to help seniors truly save, care program. grant program, and for other purposes. Congress must look toward using every If we can save even a little bit we S. 3073 logical tool to lower costs. The Con- owe it to seniors to do just that. There At the request of Mr. LEVIN, the gressional Budget Office has indicated are seniors who have to pay thousands name of the Senator from Illinois (Mr. that the type of targeted approach to of dollars for a cancer drug when there KIRK) was added as a cosponsor of S. negotiating drug pricing in the MEND are no other options for treatment. In- 3073, a bill to amend the Federal Water Act could potentially generate cost terestingly, some of these life-saving Pollution Control Act to protect and savings for the Medicare program and drugs have been developed with our tax restore the Great Lakes. for beneficiaries. It would be irrespon- dollars, through research sponsored by S. 4020 sible for the Congress not to try and Federal agencies such as the NIH. At the request of Mr. WICKER, the potentially achieve savings for a pro- Whenever I am in Oregon at a town name of the Senator from Oklahoma gram that so many Americans rely on. hall meeting, I am always asked, ‘‘How (Mr. COBURN) was added as a cosponsor The legislation that Senator SNOWE many times do we have to pay for of S. 4020, a bill to protect 10th Amend- and I put forward today is a common- drugs? Our tax dollars go toward re- ment rights by providing special stand- sense proposal. Having the Secretary search and development, and then tax- ing for State government officials to negotiate for more competitive drug payers have to pay again when the challenge proposed regulations, and for pricing is an idea that has broad public drug is patented and put on the open other purposes. support. An AARP poll reported that 87 market.’’ In cases where substantial f percent of United States adult resi- Federal research dollars went into cre- dents support government negotiation ating the drug, I believe the Secretary STATEMENTS ON INTRODUCED of prescription drug prices for the ought to step in and see what kind of a BILLS AND JOINT RESOLUTIONS Medicare benefit. Young, old, rich, better deal can be garnered on behalf of By Mr. WYDEN (for himself and poor, Democrat, Republican—our citi- seniors. Ms. SNOWE): zens strongly support this approach I would like to acknowledge Senator S. 4024. A bill to reduce the costs of and probably wonder why it has taken SNOWE’s efforts on behalf of our Medi- prescription drugs for Medicare bene- so long to implement it. care beneficiaries and taxpayers. She ficiaries and to guarantee access to Under the MEND Act, the Secretary and I have worked on this particular comprehensive prescription drug cov- could negotiate in any circumstance, issue for a number of years. This bipar- erage under part D of the Medicare pro- but must negotiate in several in- tisan proposal is an effort to follow up gram, and for other purposes; to the stances: for single source drugs for on the promise she and I made to our Committee on Finance. which there is no therapeutic equiva- citizens back home to improve the Part Mr. WYDEN. Mr. President, today, I lent; drugs for which taxpayer funding D drug benefit. I thank Senator SNOWE, am pleased to reintroduce the Medicare was substantial in its research and de- who is always trying to find common,

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00059 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8788 CONGRESSIONAL RECORD — SENATE December 10, 2010 bipartisan ground, which is, of course, pharmacies, and more. So seniors can tions required by section 304(a)(2)(B)(i) of the the only way you get important work vote with their pocketbooks, and we Congressional Accountability Act of 1995 (2 done in the Senate. This legislation can see their choices in the market in- U.S.C. 1384(a)(2)(B)(i)), the portions of the issued regulations that are unclassified or certainly qualifies as important work. fluence the kind of benefit they re- classified with an ‘‘S’’ designation shall I urge my colleagues to join with us in ceive. That is not the same as a system apply to the Senate and employees of the supporting this bipartisan legislation in which the government sets prices, Senate. to contain prescription drug costs for and that is why our legislation specifi- (b) DEFINITION.—In this section, the term our Nation’s seniors. cally bans such a practice. Under our ‘‘employee of the Senate’’ has the meaning Ms. SNOWE. Mr. President, I join legislation, the Federal Government given the term in section 101 of the Congres- with my colleague and friend. Senator sional Accountability Act of 1995 (2 U.S.C. cannot set either prices or 1301), except as limited by the regulations (as RON WYDEN, to introduce legislation formularies—that is absolutely clear. corrected under section 3). which we have sponsored since 2004 to What I believe most of us desire to do SEC. 3. TECHNICAL CORRECTIONS. ensure the sound fiscal management of is give the current system the best (a) CURRENT NAMES OF OFFICES AND HEADS the Medicare prescription drug benefit. tools to achieve success. That means OF OFFICES.—A reference in the issued regu- Unquestionably, this new benefit that the Secretary must have an over- lations— marks a milestone for Medicare. Today sight role. Our legislation rescinds the (1) to the Capitol Guide Board or the Cap- millions of American seniors are at noninterference clause and directs the itol Guide Service (which no longer exist) last receiving assistance with the high shall be considered to be a reference to the Secretary to negotiate for any nec- Office of Congressional Accessibility Serv- cost of prescription drugs. For so essary fallback plan, and in addition, ices; many, that will make a difference be- to respond to requests for help from (2) to the Capitol Police Board shall be tween choosing whether to take needed plans which cannot obtain reasonable considered to be a reference to the Capitol medications and providing the other negotiation. Police; necessities of life. We have indeed come We have also added two areas in (3) to the Senate Restaurants (which are a very long way. We look forward to re- which the Secretary must negotiate. no longer public entities) shall be dis- alizing the many benefits of this cov- First, as the CBO has stated that nego- regarded; and erage as we see the results of more af- (4) in sections 1.110(b) and 1.121(c), to the tiation of single-source drugs could director of an employing office shall be con- fordable access to prescription drugs— yield savings, our legislation directs sidered to be a reference to the head of an better health for our seniors and sub- the Secretary to engage in negotiation employing office. stantial health care savings. regarding those unique products. We (b) CROSS REFERENCES TO PROVISIONS OF At the same time, there is no doubt also know that some drugs exist be- REGULATIONS.—A reference in the issued reg- that this benefit can be improved. We cause the taxpayer provides substan- ulations— have heard estimates that the average tial support to see them developed. The (1) in paragraphs (l) and (m) of section 1.102, to subparagraphs (3) through (8) of senior is saving an average of $1,000 per public deserves a fair price on those year, but we should ask how that sav- paragraph (g) of that section shall be consid- products it made possible, so the Sec- ered to be a reference to paragraph (g) of ing is being achieved. The discovery by retary should weigh-in in those cases. that section; many seniors—when they reached the Finally, our bill protects bene- (2) in section 1.102(l), to subparagraphs (aa) doughnot hole—that their cost of medi- ficiaries by assuring that seniors will through (dd) of section 1.102(g) shall be con- cations was the same or even higher have access to a comprehensive cov- sidered to be a reference to subparagraphs than what they paid prior to enrolling erage option—at least one plan in each (aa) through (dd) of that section (as specified in Part D—that should be a red flag region must provide the option to in the regulations classified with an ‘‘H’’ classification); that we may not be seeing the pur- avoid the coverage gap, dreaded dough- chasing power of seniors harnessed for (3) in section 1.102(m), to subparagraphs nut hole. Today, 47 percent of plans (aa) through (ee) of section 1.102(g) shall be the savings they deserve. offer no coverage, 30 percent only cover considered to be a reference to subpara- Our system is working well in terms generics, and 23 percent cover generics graphs (aa) through (ee) of that section (as of subsidy, but certainly needs to im- and some brand name drugs. specified in the regulations classified with prove in terms of negotiating substan- The bottom line is that our bill pro- an ‘‘S’’ classification); tial discounts. As Senator WYDEN and I tects both beneficiaries and taxpayers (4) in section 1.111(d), to section 1.102(o) learned from GAO reports we have re- within the public-private partnership shall be considered to be a reference to sec- tion 1.102(p); and ceived, the prices of drugs used by sen- on which this benefit rests. I call on iors have inexorably increased since (5) in section 1.112, to section 1.102(h) shall my colleagues to join us in this effort. be considered to be a reference to section 2000 at two to three times the inflation f 1.102(i). rate. According to the New York (c) CROSS REFERENCES TO OTHER PROVI- Times, last year’s brand drug price in- SUBMITTED RESOLUTIONS SIONS OF LAW.—A reference in the issued reg- crease average of over 9 percent rep- ulations— resents the highest annual rate of in- (1) to the Veterans Employment Opportu- flation for drug prices since 1992. SENATE RESOLUTION 700—TO PRO- nities Act shall be considered to be a ref- So the costs of this program will re- VIDE FOR THE APPROVAL OF erence to the Veterans Employment Oppor- main a concern. Most of us envisioned FINAL REGULATIONS ISSUED BY tunities Act of 1998; (2) to 2 U.S.C. 43d(a) shall be considered to that not only would the taxpayer con- THE OFFICE OF COMPLIANCE TO be a reference to section 105(a) of the Second tribute to helping seniors with drug ex- IMPLEMENT THE VETERANS EM- Supplemental Appropriations Act, 1978; penses, but we also would realize sub- PLOYMENT OPPORTUNITIES ACT (3) to 2 U.S.C. 1316a(3) shall be considered stantial savings from lower prices on OF 1998 THAT APPLY TO THE to be a reference to section 4(c)(3) of the Vet- prescription drugs. SENATE AND EMPLOYEES OF erans Employment Opportunities Act of 1998; That is why Senator WYDEN and I THE SENATE (4) to 5 U.S.C. 2108(3)(c) shall be considered to be a reference to section 2108(3)(C) of title proposed to achieve some balance in Mr. SCHUMER (for himself and Mr. the public-private partnership which is 5, United States Code; BENNETT) submitted the following reso- (5) to the Americans with Disabilities Act Part D today, and it is why today we lution; which was considered and shall be considered to be a reference to the are again introducing the Medicare En- agreed to: Americans with Disabilities Act of 1990; hancements for Needed Drugs Act—the (6) to the Soil Conservation and Allotment S. RES. 700 MEND Act. In this drug benefit the Act shall be considered to be a reference to HHS Secretary should have a proper Resolved, That the following regulations the Soil Conservation and Domestic Allot- issued by the Office of Compliance on March ment Act; and role in negotiation—negotiation, not 21, 2008, and stated in section 4, with the price setting. (7) to the Agricultural Adjustment Act technical corrections described in section 3 shall be considered to be a reference to the It is clear that what the Congress in- and to the extent applied by section 2, are tended to do was to create a true pub- Agricultural Adjustment Act, reenacted with hereby approved: amendments by the Agricultural Marketing lic-private partnership, utilizing com- SEC. 2. APPLICATION OF REGULATIONS. Agreement Act of 1937. petitive forces to bring more choices to (a) IN GENERAL.—For purposes of applying (d) OTHER CORRECTIONS.—In the issued reg- seniors—in drugs, benefit plan designs, the issued regulations as a body of regula- ulations—

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00060 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8789 (1) in section 1.102(g)(1) (in the regulations it may afford to preference eligible individ- allowances in the armed forces, except (1) for classified with an ‘‘S’’ classification), the uals. training or for determining physical fitness ‘‘and’’ at the end shall be disregarded; H Regs: (c) Scope of Regulations. The def- and (2) for service in the Reserves or Na- (2) section 1.102(g)(7) (in the regulations inition of ‘‘covered employee’’ in Section 4(c) tional Guard. classified with an ‘‘S’’ classification) shall be of the VEOA limits the scope of the statute’s (d) Appointment means an individual’s ap- considered to have an ‘‘or’’ at the end; applicability within the Legislative branch. pointment to employment in a covered posi- (3) section 1.109 shall be considered to have The term ‘‘covered employee’’ excludes any tion, but does not include any personnel ac- an ‘‘and’’ after paragraph (a); employee: (1) whose appointment is made by tion that an employing office takes with re- (4) the second sentence of section 1.116 the President with the advice and consent of gard to an existing employee of the employ- shall be disregarded; the Senate; (2) whose appointment is made ing office. (5) section 1.118(b) shall be considered to by a Member of Congress within an employ- (e) Armed forces means the United States have an ‘‘and’’ after paragraph (2) rather ing office, as defined by Sec. 101 (9)(A–C) of Army, Navy, Air Force, Marine Corps, and than paragraph (1); the CAA, 2 U.S.C. § 1301 (9)(A–C) or; (3) whose Coast Guard. (6) a reference in sections 1.118(c)(1) and appointment is made by a committee or sub- (f) Board means the Board of Directors of the Office of Compliance. 1.120(b)(1) to veterans’ ‘‘preference eligible’’ committee of either House of Congress or a H Regs: (g) Covered employee means any shall be considered to be a reference to joint committee of the House of Representa- employee of (1) the House of Representatives; ‘‘preference eligible’’; tives and the Senate; or (4) who is appointed and (2) the Senate; (3) the Capitol Guide (7) sections 1.118(c) and 1.120(b) shall be to a position, the duties of which are equiva- Board; (4) the Capitol Police Board; (5) the considered to have an ‘‘and’’ after paragraph lent to those of a Senior Executive Service Congressional Budget Office; (6) the Office of (1); and position (within the meaning of section the Architect of the Capitol; (7) the Office of (8) section 1.121(b)(6)(B) shall be considered 3132(a)(2) of title 5, United States Code). Ac- the Attending Physician; and (8) the Office of to have an ‘‘and’’ at the end. cordingly, these regulations shall not apply Compliance, but does not include an em- SEC. 4. REGULATIONS. to any employing office that only employs ployee (aa) whose appointment is made by When approved by the House of Represent- individuals excluded from the definition of the President with the advice and consent of atives for the House of Representatives, covered employee. the Senate; (bb) whose appointment is made these regulations will have the prefix ‘‘H.’’ S Regs: (c) Scope of Regulations. The defi- by a Member of Congress; (cc) whose appoint- When approved by the Senate for the Senate, nition of ‘‘covered employee’’ in Section 4(c) ment is made by a committee or sub- these regulations will have the prefix ‘‘S.’’ of the VEOA limits the scope of the statute’s committee of either House of Congress or a When approved by Congress for the other em- applicability within the Legislative branch. joint committee of the House of Representa- ploying offices covered by the CAA, these The term ‘‘covered employee’’ excludes any tives and the Senate; or (dd) who is ap- regulations will have the prefix ‘‘C.’’ employee: (1) whose appointment is made by pointed to a position, the duties of which are In this draft, ‘‘H&S Regs’’ denotes the provi- the President with the advice and consent of equivalent to those of a Senior Executive sions that would be included in the regula- the Senate; (2) whose appointment is made Service position (within the meaning of sec- tions applicable to be made applicable to the or directed by a Member of Congress within tion 3132(a)(2) of title 5, United States Code). House and Senate, and ‘‘C Reg’’ denotes the an employing office, as defined by Sec. The term covered employee includes an ap- provisions that would be included in the reg- 101(9)(A–C) of the CAA, 2 U.S.C. § 1301 (9)(A–C) plicant for employment in a covered position ulations to be made applicable to other em- or; (3) whose appointment is made by a com- and a former covered employee. ploying offices. mittee or subcommittee of either House of S. Regs: (g) Covered employee means any PART 1—Extension of Rights and Protec- Congress or a joint committee of the House employees of (1) the House of Representa- tions Relating to Veterans’ Preference Under of Representatives and the Senate; (4) who is tives; and (2) the Senate; (3) the Capitol Title 5, United States Code, to Covered Em- appointed pursuant to 2 U.S.C. § 43d(a); or (5) Guide Board; (4) the Capitol Police Board; (5) ployees of the Legislative Branch (section who is appointed to a position, the duties of the Congressional Budget Office; (6) the Of- 4(c) of the Veterans Employment Opportuni- which are equivalent to those of a Senior Ex- fice of the Architect of the Capitol; (7) the ties Act of 1998) ecutive Service position (within the meaning Office of the Attending Physician; and (8) the SUBPART A—MATTERS OF GENERAL APPLICA- of section 3132(a)(2) of title 5, United States Office of Compliance, but does not include an BILITY TO ALL REGULATIONS PROMULGATED Code). Accordingly, these regulations shall employee (aa) whose appointment is made by UNDER SECTION 4 OF THE VEOA not apply to any employing office that only the President with the advice and consent of Sec. employs individuals excluded from the defi- the Senate; (bb) whose appointment is made 1.101 Purpose and scope. nition of covered employee. or directed by a Member of Congress; (cc) 1.102 Definitions. C Reg: (c) Scope of Regulations. The defi- whose appointment is made by a committee 1.103 Adoption of regulations. nition of ‘‘covered employee’’ in Section 4(c) or subcommittee of either House of Congress 1.104 Coordination with section 225 of the of the VEOA limits the scope of the statute’s or a joint committee of the House of Rep- Congressional Accountability applicability within the Legislative branch. resentatives and the Senate; (dd) who is ap- Act. The term ‘‘covered employee’’ excludes any pointed pursuant to 2 U.S.C. § 43d(a); or (ee) SEC. 1.101. PURPOSE AND SCOPE. employee: (1) whose appointment is made by who is appointed to a position, the duties of (a) Section 4(c) of the VEOA. The Veterans the President with the advice and consent of which are equivalent to those of a Senior Ex- ecutive Service position (within the meaning Employment Opportunities Act (VEOA) ap- the Senate; (2) whose appointment is made of section 3132(a)(2) of title 5, United States plies the rights and protections of sections by a Member of Congress or by a committee Code). The term covered employee includes 2108, 3309 through 3312, and subchapter I of or subcommittee of either House of Congress an applicant for employment in a covered chapter 35 of title 5 U.S.C., to certain cov- or a joint committee of the House of Rep- position and a former covered employee. ered employees within the Legislative resentatives and the Senate; or (3) who is ap- pointed to a position, the duties of which are C Reg: (g) Covered employee means any branch. employee of (1) the Capitol Guide Service; (2) (b) Purpose of regulations. The regulations equivalent to those of a Senior Executive the Capitol Police; (3) the Congressional set forth herein are the substantive regula- Service position (within the meaning of sec- tion 3132(a)(2) of title 5, United States Code). Budget Office; (4) the Office of the Architect tions that the Board of Directors of the Of- of the Capitol; (5) the Office of the Attending fice of Compliance has promulgated pursuant Accordingly, these regulations shall not apply to any employing office that only em- Physician; or (6) the Office of Compliance, to section 4(c)(4) of the VEOA, in accordance but does not include an employee: (aa) whose with the rulemaking procedure set forth in ploys individuals excluded from the defini- tion of covered employee. appointment is made by the President with section 304 of the CAA (2 U.S.C. § 1384). The the advice and consent of the Senate; or (bb) purpose of subparts B, C and D of these regu- SEC. 1.102. DEFINITIONS. whose appointment is made by a Member of lations is to define veterans’ preference and Except as otherwise provided in these regu- Congress or by a committee or sub- the administration of veterans’ preference as lations, as used in these regulations: committee of either House of Congress or a applicable to Federal employment in the (a) Accredited physician means a doctor of joint committee of the House of Representa- Legislative branch. (5 U.S.C. § 2108, as applied medicine or osteopathy who is authorized to tives and the Senate; or (cc) who is ap- by the VEOA). The purpose of subpart E of practice medicine or surgery (as appropriate) pointed to a position, the duties of which are these regulations is to ensure that the prin- by the State in which the doctor practices. equivalent to those of a Senior Executive ciples of the veterans’ preference laws are in- The phrase ‘‘authorized to practice by the Service position (within the meaning of sec- tegrated into the existing employment and State’’ as used in this section means that the tion 3132(a)(2) of title 5, United States Code). retention policies and processes of those em- provider must be authorized to diagnose and The term covered employee includes an ap- ploying offices with employees covered by treat physical or mental health conditions plicant for employment in a covered position the VEOA, and to provide for transparency without supervision by a doctor or other and a former covered employee. in the application of veterans’ preference in health care provider. (h) Covered position means any position covered appointment and retention deci- (b) Act or CAA means the Congressional that is or will be held by a covered employee. sions. Provided, nothing in these regulations Accountability Act of 1995, as amended (Pub. (i) Disabled veteran means a person who shall be construed so as to require an em- L. 104–1, 109 Stat. 3, 2 U.S.C. §§ 1301–1438). was separated under honorable conditions ploying office to reduce any existing vet- (c) Active duty or active military duty from active duty in the armed forces per- erans’ preference rights and protections that means full-time duty with military pay and formed at any time and who has established

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the present existence of a service-connected (t) VEOA means the Veterans Employment SUBPART B—VETERANS’ PREFERENCE— disability or is receiving compensation, dis- Opportunities Act of 1998 (Pub. L. 105–339, 112 GENERAL PROVISIONS ability retirement benefits, or pensions be- Stat. 3182). Sec. cause of a public statute administered by the (u) Veterans means persons as defined in 5 1.105 Responsibility for administration of Department of Veterans Affairs or a military U.S.C. § 2108(1), or any superseding legisla- veterans’ preference. department. tion. 1.106 Procedures for bringing claims under (j) Employee of the Office of the Architect SEC. 1.103. ADOPTION OF REGULATIONS. the VEOA. of the Capitol includes any employee of the (a) Adoption of regulations. Section SEC. 1.105. RESPONSIBILITY FOR ADMINISTRA- Office of the Architect of the Capitol, the Bo- 4(c)(4)(A) of the VEOA generally authorizes TION OF VETERANS’ PREFERENCE. tanic Gardens, or the Senate Restaurants. the Board to issue regulations to implement Subject to section 1.106, employing offices (k) Employee of the Capitol Police Board section 4(c). In addition, section 4(c)(4)(B) of with covered employees or covered positions includes any member or officer of the Cap- the VEOA directs the Board to promulgate are responsible for making all veterans’ pref- itol Police. regulations that are ‘‘the same as the most erence determinations, consistent with the (l) Employee of the House of Representa- relevant substantive regulations (applicable VEOA. tives includes an individual occupying a po- with respect to the Executive branch) pro- SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS sition the pay of which is disbursed by the mulgated to implement the statutory provi- UNDER THE VEOA. Clerk of the House of Representatives, or an- sions referred to in paragraph (2)’’ of section Applicants for appointment to a covered other official designated by the House of 4(c) of the VEOA. Those statutory provisions position and covered employees may contest Representatives, or any employment posi- are section 2108, sections 3309 through 3312, adverse veterans’ preference determinations, tion in an entity that is paid with funds de- and subchapter I of chapter 35, of title 5, including any determination that a pref- rived from the clerk-hire allowance of the United States Code. The regulations issued erence eligible applicant is not a qualified House of Representatives but not any such by the Board herein are on all matters for applicant, pursuant to sections 401–416 of the individual employed by any entity listed in which section 4(c)(4)(B) of the VEOA requires CAA, 2 U.S.C. §§ 1401–1416, and provisions of a regulation to be issued. Specifically, it is subparagraphs (3) through (8) of paragraph law referred to therein; 206a(3) of the CAA, 2 the Board’s considered judgment based on (g) above nor any individual described in U.S.C. §§ 1401, 1316a(3); and the Office’s Proce- the information available to it at the time of subparagraphs (aa) through (dd) of paragraph dural Rules. (g) above. promulgation of these regulations, that, (m) Employee of the Senate includes any with the exception of the regulations adopt- SUBPART C—VETERANS’ PREFERENCE IN employee whose pay is disbursed by the Sec- ed and set forth herein, there are no other APPOINTMENTS retary of the Senate, but not any such indi- ‘‘substantive regulations (applicable with re- Sec. vidual employed by any entity listed in sub- spect to the Executive branch) promulgated 1.107 Veterans’ preference in appointments to paragraphs (3) through (8) of paragraph (g) to implement the statutory provisions re- restricted covered positions. above nor any individual described in sub- ferred to in paragraph (2)’’ of section 4(c) of 1.108 Veterans’ preference in appointments to paragraphs (aa) through (ee) of paragraph (g) the VEOA that need be adopted. non-restricted covered posi- above. (b) Modification of substantive regula- tions. H Regs: (n) Employing office means: (1) tions. As a qualification to the statutory ob- 1.109 Crediting experience in appointments to the personal office of a Member of the House ligation to issue regulations that are ‘‘the covered positions. of Representatives; (2) a committee of the same as the most substantive regulations 1.110 Waiver of physical requirements in ap- House of Representatives or a joint com- (applicable with respect to the Executive pointments to covered posi- mittee of the House of Representatives and branch)’’, section 4(c)(4)(B) of the VEOA au- tions. the Senate; or (3) any other office headed by thorizes the Board to ‘‘determine, for good SEC. 1.107. VETERANS’ PREFERENCE IN APPOINT- a person with the final authority to appoint, cause shown and stated together with the MENTS TO RESTRICTED POSITIONS. hire, discharge, and set the terms, condi- regulation, that a modification of such regu- In each appointment action for the posi- tions, or privileges of the employment of an lations would be more effective for the im- tions of custodian, elevator operator, guard, employee of the House of Representatives or plementation of the rights and protections and messenger (as defined below and collec- the Senate. under’’ section 4(c) of the VEOA. tively referred to in these regulations as re- S Regs: (n) Employing office means: (1) (c) Rationale for Departure from the Most stricted covered positions) employing offices the personal office of a Senator; (2) a com- Relevant Executive Branch Regulations. The shall restrict competition to preference eli- mittee of the Senate or a joint committee of Board concludes that it must promulgate gible applicants as long as qualified pref- the House of Representatives and the Senate; regulations accommodating the human re- erence eligible applicants are available. The or (3) any other office headed by a person source systems existing in the Legislative provisions of sections 1.109 and 1.110 below with the final authority to appoint, or be di- branch; and that such regulations must take shall apply to the appointment of a pref- rected by a Member of Congress to appoint, into account the fact that the Board does not erence eligible applicant to a restricted cov- hire, discharge, and set the terms, condi- possess the statutory and Executive Order ered position. The provisions of section 1.108 tions, or privileges of the employment of an based government-wide policy making au- shall apply to the appointment of a pref- employee of the House of Representatives or thority underlying OPM’s counterpart VEOA erence eligible applicant to a restricted cov- the Senate. regulations governing the Executive branch. ered position, in the event that there is more C Reg: (n) Employing office means: the OPM’s regulations are designed for the com- than one preference eligible applicant for the Capitol Guide Board, the Capitol Police petitive service (defined in 5 U.S.C. position. Board, the Congressional Budget Office, the § 2102(a)(2)), which does not exist in the em- Custodian—One whose primary duty is the Office of the Architect of the Capitol, the Of- ploying offices subject to this regulation. performance of cleaning or other ordinary fice of the Attending Physician, and the Of- Therefore, to follow the OPM regulations routine maintenance duties in or about a fice of Compliance. would create detailed and complex rules and government building or a building under (o) Office means the Office of Compliance. procedures for a workforce that does not Federal control, park, monument, or other (p) Preference eligible means veterans, exist in the Legislative branch, while pro- Federal reservation. spouses, widows, widowers or mothers who viding no VEOA protections to the covered Elevator operator—One whose primary meet the definition of ‘‘preference eligible’’ Legislative branch employees. We have cho- duty is the running of freight or passenger in 5 U.S.C. § 2108(3)(A)–(G). sen to propose specially tailored regulations, elevators. The work includes opening and (q) Qualified applicant means an applicant rather than simply to adopt those promul- closing elevator gates and doors, working el- for a covered position whom an employing gated by OPM, so that we may effectuate evator controls, loading and unloading the office deems to satisfy the requisite min- Congress’ intent in extending the principles elevator, giving information and directions imum job-related requirements of the posi- of the veterans’ preference laws to the Legis- to passengers such as on the location of of- tion. Where the employing office uses an en- lative branch through the VEOA. fices, and reporting problems in running the trance examination or evaluation for a cov- SEC. 1.104. COORDINATION WITH SECTION 225 OF elevator. ered position that is numerically scored, the THE CONGRESSIONAL ACCOUNT- Guard—One whose primary duty is the as- term ‘‘qualified applicant’’ shall mean that ABILITY ACT. signment to a station, beat, or patrol area in the applicant has received a passing score on Statutory directive. Section 4(c)(4)(C) of a Federal building or a building under Fed- the examination or evaluation. the VEOA requires that promulgated regula- eral control to prevent illegal entry of per- (r) Separated under honorable conditions tions must be consistent with section 225 of sons or property; or required to stand watch means either an honorable or a general dis- the CAA. Among the relevant provisions of at or to patrol a Federal reservation, indus- charge from the armed forces. The Depart- section 225 are subsection (f)(1), which pre- trial area, or other area designated by Fed- ment of Defense is responsible for admin- scribes as a rule of construction that defini- eral authority, in order to protect life and istering and defining military discharges. tions and exemptions in the laws made appli- property; make observations for detection of (s) Uniformed services means the armed cable by the CAA shall apply under the CAA, fire, trespass, unauthorized removal of public forces, the commissioned corps of the Public and subsection (f)(3), which states that the property or hazards to Federal personnel or Health Service, and the commissioned corps CAA shall not be considered to authorize en- property. The term guard does not include of the National Oceanic and Atmospheric Ad- forcement of the CAA by the Executive law enforcement officer positions of the Cap- ministration. branch. itol Police Board.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00062 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8791 Messenger—One whose primary duty is the the notification. The director of the employ- (3) a preference eligible covered employee supervision or performance of general mes- ing office may, by providing written notice who is a retired member of a uniformed serv- senger work (such as running errands, deliv- to the preference eligible applicant, shorten ice is considered a preference eligible only if ering messages, and answering call bells). the period for submitting a response with re- (A) his/her retirement was based on dis- SEC. 1.108. VETERANS’ PREFERENCE IN APPOINT- spect to an appointment to a particular cov- ability— MENTS TO NON-RESTRICTED COV- ered position, if necessary because of a need (i) resulting from injury or disease re- ERED POSITIONS. to fill the covered position immediately. ceived in line of duty as a direct result of (a) Where an employing office has duly Should the preference eligible applicant armed conflict; or adopted a policy requiring the numerical make a timely response, the highest ranking (ii) caused by an instrumentality of war scoring or rating of applicants for covered individual or group of individuals with au- and incurred in the line of duty during a pe- positions, the employing office shall add thority to make employment decisions on riod of war as defined by sections 101 and 1101 points to the earned ratings of those pref- behalf of the employing office shall render a of title 38; erence eligible applicants who receive pass- final determination of the physical ability of (B) his/her service does not include twenty ing scores in an entrance examination, in a the preference eligible applicant to perform or more years of full-time active service, re- manner that is proportionately comparable the duties of the position, taking into ac- gardless of when performed but not including to the points prescribed in 5 U.S.C. § 3309. For count the response and any additional infor- periods of active duty for training; or example, five preference points shall be mation provided by the preference eligible (C) on November 30, 1964, he/she was em- granted to preference eligible applicants in a applicant. When the employing office has ployed in a position to which this subchapter 100-point system, one point shall be granted completed its review of the proposed dis- applies and thereafter he/she continued to be in a 20-point system, and so on. qualification on the basis of physical dis- so employed without a break in service of (b) In all other situations involving ap- ability, it shall send its findings to the pref- more than 30 days. pointment to a covered position, employing erence eligible applicant. The definition of ‘‘preference eligible’’ as offices shall consider veterans’ preference (c) Nothing in this section shall relieve an set forth in 5 U.S.C § 2108 and section 1.102(o) eligibility as an affirmative factor in the em- employing office of any obligations it may of these regulations shall apply to waivers of ploying office’s determination of who will be have pursuant to the Americans with Dis- physical requirements in determining an em- appointed from among qualified applicants. abilities Act (42 U.S.C. § 12101 et seq.) as ap- ployee’s qualifications for retention under SEC. 1.109. CREDITING EXPERIENCE IN APPOINT- plied by section 102(a)(3) of the Act, 2 U.S.C. section 1.114 of these regulations. MENTS TO COVERED POSITIONS. § 1302(a)(3). H&S Regs: (e) Reduction in force is any When considering applicants for covered termination of a covered employee’s employ- SUBPART D—VETERANS’ PREFERENCE IN positions in which experience is an element ment or the reduction in pay and/or position REDUCTIONS IN FORCE of qualification, employing offices shall pro- grade of a covered employee for more than 30 vide preference eligible applicants with cred- Sec. days and that may be required for budgetary it: 1.111. Definitions applicable in reductions in or workload reasons, changes resulting from (a) for time spent in the military service force. reorganization, or the need to make room for (1) as an extension of time spent in the posi- 1.112. Application of preference in reductions an employee with reemployment or restora- tion in which the applicant was employed in force. tion rights. The term ‘‘reduction in force’’ immediately before his/her entrance into the 1.113. Crediting experience in reductions in does not encompass a termination or other military service, or (2) on the basis of actual force. personnel action: (1) predicated upon per- duties performed in the military service, or 1.114. Waiver of physical requirements in re- formance, conduct or other grounds attrib- (3) as a combination of both methods. Em- ductions in force. utable to an employee, or (2) involving an ploying offices shall credit time spent in the 1.115. Transfer of functions. employee who is employed by the employing military service according to the method SEC. 1.111. DEFINITIONS APPLICABLE IN REDUC- office on a temporary basis, or (3) attrib- that will be of most benefit to the preference TIONS IN FORCE. utable to a change in party leadership or ma- eligible applicant. (a) Competing covered employees are the jority party status within the House of Con- (b) for all experience material to the posi- covered employees within a particular posi- gress where the employee is employed. tion for which the applicant is being consid- tion or job classification, at or within a par- C Reg: (e) Reduction in force is any ter- ered, including experience gained in reli- ticular competitive area, as those terms are mination of a covered employee’s employ- gious, civic, welfare, service, and organiza- defined below. ment or the reduction in pay and/or position tional activities, regardless of whether he/ (b) Competitive area is that portion of the grade of a covered employee for more than 30 she received pay therefor. employing office’s organizational structure, days and that may be required for budgetary SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS as determined by the employing office, in or workload reasons, changes resulting from IN APPOINTMENTS TO COVERED PO- which covered employees compete for reten- reorganization, or the need to make room for SITIONS. tion. A competitive area must be defined an employee with reemployment or restora- (a) Subject to (c) below, in determining solely in terms of the employing office’s or- tion rights. The term ‘‘reduction in force’’ qualifications of a preference eligible for ap- ganizational unit(s) and geographical loca- does not encompass a termination or other pointment, an employing office shall waive: tion, and it must include all employees with- personnel action: (1) predicated upon per- (1) with respect to a preference eligible ap- in the competitive area so defined. A com- formance, conduct or other grounds attrib- plicant, requirements as to age, height, and petitive area may consist of all or part of an utable to an employee, or (2) involving an weight, unless the requirement is essential employing office. The minimum competitive employee who is employed by the employing to the performance of the duties of the posi- area is a department or subdivision of the office on a temporary basis. tion; and employing office within the local commuting (f) Undue interruption is a degree of inter- (2) with respect to a preference eligible ap- area. ruption that would prevent the completion plicant to whom it has made a conditional (c) Position classifications or job classi- of required work by a covered employee 90 offer of employment, physical requirements fications are determined by the employing days after the employee has been placed in a if, in the opinion of the employing office, on office, and shall refer to all covered positions different position under this part. The 90-day the basis of evidence before it, including any within a competitive area that are in the standard should be considered within the al- recommendation of an accredited physician same grade, occupational level or classifica- lowable limits of time and quality, taking submitted by the preference eligible appli- tion, and which are similar enough in duties, into account the pressures of priorities, cant, the preference eligible applicant is qualification requirements, pay schedules, deadlines, and other demands. However, physically able to perform efficiently the du- tenure (type of appointment) and working work generally would not be considered to be ties of the position; conditions so that an employing office may unduly interrupted if a covered employee (b) Subject to (c) below, if an employing of- reassign the incumbent of one position to needs more than 90 days after the reduction fice determines, on the basis of evidence be- any of the other positions in the position in force to perform the optimum quality or fore it, including any recommendation of an classification without undue interruption. quantity of work. The 90-day standard may accredited physician submitted by the pref- (d) Preference Eligibles. For the purpose of be extended if placement is made under this erence eligible applicant, that an applicant applying veterans’ preference in reductions part to a program accorded low priority by to whom it has made a conditional offer of in force, except with respect to the applica- the employing office, or to a vacant position. employment is preference eligible as a dis- tion of section 1.114 of these regulations re- SEC. 1.112. APPLICATION OF PREFERENCE IN RE- abled veteran as described in 5 U.S.C. garding the waiver of physical requirements, DUCTIONS IN FORCE. § 2108(3)(c) and who has a compensable serv- the following shall apply: Prior to carrying out a reduction in force ice-connected disability of 30 percent or (1) ‘‘active service’’ has the meaning given that will affect covered employees, employ- more is not able to fulfill the physical re- it by section 101 of title 37; ing offices shall determine which, if any, quirements of the covered position, the em- (2) ‘‘a retired member of a uniformed serv- covered employees within a particular group ploying office shall notify the preference eli- ice’’ means a member or former member of a of competing covered employees are entitled gible applicant of the reasons for the deter- uniformed service who is entitled, under to veterans’ preference eligibility status in mination and of the right to respond and to statute, to retired, retirement, or retainer accordance with these regulations. In deter- submit additional information to the em- pay on account of his/her service as such a mining which covered employees will be re- ploying office, within 15 days of the date of member; and tained, employing offices will treat veterans’

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Should the preference eligi- its veterans’ preference policies as it deems erence eligible employee’s performance has ble covered employee make a timely re- necessary or appropriate, so long as the re- not been determined to be unacceptable. sponse, the highest ranking individual or sulting policies are consistent with the Provided, a preference eligible employee who group of individuals with authority to make VEOA and these regulations. is a ‘‘disabled veteran’’ under section 1.102(h) employment decisions on behalf of the em- SEC. 1.117. PRESERVATION OF RECORDS MADE above who has a compensable service-con- ploying office, shall render a final deter- OR KEPT. nected disability of 30 percent or more and mination of the physical ability of the pref- An employing office that employs one or whose performance has not been determined erence eligible covered employee to perform more covered employees or that seeks appli- to be unacceptable by an employing office is the duties of the covered position, taking cants for a covered position shall maintain entitled to be retained in preference to other into account the evidence before it, includ- any records relating to the application of its preference eligible employees. Provided, this ing the response and any additional informa- veterans’ preference policy to applicants for section does not relieve an employing office tion provided by the preference eligible. covered positions and to workforce adjust- of any greater obligation it may be subject When the employing office has completed its ment decisions affecting covered employees to pursuant to the Worker Adjustment and review of the proposed disqualification on for a period of at least one year from the Retraining Notification Act (29 U.S.C. § 2101 the basis of physical disability, it shall send date of the making of the record or the date et seq.) as applied by section 102(a)(9) of the its findings to the preference eligible covered of the personnel action involved or, if later, CAA, 2 U.S.C. § 1302(a)(9). employee. one year from the date on which the appli- cant or covered employee is notified of the SEC. 1.113. CREDITING EXPERIENCE IN REDUC- (c) Nothing in this section shall relieve an TIONS IN FORCE. employing office of any obligation it may personnel action. Where a claim has been In computing length of service in connec- have pursuant to the Americans with Dis- brought under section 401 of the CAA against an employing office under the VEOA, the re- tion with a reduction in force, the employing abilities Act (42 U.S.C. § 12101 et seq.) as ap- spondent employing office shall preserve all office shall provide credit to preference eligi- plied by section 102(a)(3) of the CAA, 2 U.S.C. personnel records relevant to the claim until ble covered employees as follows: § 1302(a)(3). final disposition of the claim. The term ‘‘per- (a) a preference eligible covered employee SEC. 1.115. TRANSFER OF FUNCTIONS. sonnel records relevant to the claim’’, for ex- who is not a retired member of a uniformed (a) When a function is transferred from one ample, would include records relating to the service is entitled to credit for the total employing office to another employing of- veterans’ preference determination regard- length of time in active service in the armed fice, each covered employee in the affected ing the person bringing the claim and forces; position classifications or job classifications records relating to any veterans’ preference (b) a preference eligible covered employee in the function that is to be transferred shall determinations regarding other applicants be transferred to the receiving employing of- who is a retired member of a uniformed serv- for the covered position the person sought, fice for employment in a covered position for ice is entitled to credit for: or records relating to the veterans’ pref- which he/she is qualified before the receiving (1) the length of time in active service in erence determinations regarding other cov- employing office may make an appointment the armed forces during a war, or in a cam- ered employees in the person’s position or from another source to that position. paign or expedition for which a campaign job classification. The date of final disposi- (b) When one employing office is replaced badge has been authorized; or tion of the charge or the action means the by another employing office, each covered (2) the total length of time in active serv- latest of the date of expiration of the statu- employee in the affected position classifica- ice in the armed forces if he is included tory period within which the aggrieved per- tions or job classifications in the employing under 5 U.S.C. § 3501(a)(3)(A), (B), or (C); and son may file a complaint with the Office or office to be replaced shall be transferred to (c) a preference eligible covered employee in a U.S. District Court or, where an action the replacing employing office for employ- is entitled to credit for: is brought against an employing office by ment in a covered position for which he/she (1) service rendered as an employee of a the aggrieved person, the date on which such is qualified before the replacing employing county committee established pursuant to litigation is terminated. section 8(b) of the Soil Conservation and Al- office may make an appointment from an- other source to that position. SEC. 1.118. DISSEMINATION OF VETERANS’ PREF- lotment Act or of a committee or association ERENCE POLICIES TO APPLICANTS of producers described in section 10(b) of the SUBPART E—ADOPTION OF VETERANS’ PREF- FOR COVERED POSITIONS. Agricultural Adjustment Act; and ERENCE POLICIES, RECORDKEEPING & INFOR- (a) An employing office shall state in any (2) service rendered as an employee de- MATIONAL REQUIREMENTS. announcements and advertisements it makes scribed in 5 U.S.C. § 2105(c) if such employee Sec. concerning vacancies in covered positions moves or has moved, on or after January 1, 1.116. Adoption of veterans’ preference pol- that the staffing action is governed by the 1966, without a break in service of more than icy. VEOA. 3 days, from a position in a nonappropriated 1.117. Preservation of records made or kept. (b) An employing office shall invite appli- fund instrumentality of the Department of 1.118. Dissemination of veterans’ preference cants for a covered position to identify Defense or the Coast Guard to a position in policies to applicants for cov- themselves as veterans’ preference eligible the Department of Defense or the Coast ered positions. applicants, provided that in doing so: Guard, respectively, that is not described in 1.119. Information regarding veterans’ pref- (1) the employing office shall state clearly 5 U.S.C. § 2105(c). erence determinations in ap- on any written application or questionnaire SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS pointments. used for this purpose or make clear orally, if IN REDUCTIONS IN FORCE. 1.120. Dissemination of veterans’ preference a written application or questionnaire is not (a) If an employing office determines, on policies to covered employees. used, that the requested information is in- the basis of evidence before it, that a covered 1.121. Written notice prior to a reduction in tended for use solely in connection with the employee is preference eligible, the employ- force. employing office’s obligations and efforts to ing office shall waive, in determining the SEC. 1.116. ADOPTION OF VETERANS’ PREF- provide veterans’ preference to preference el- covered employee’s retention status in a re- ERENCE POLICY. igible applicants in accordance with the duction in force: No later than 120 calendar days following VEOA; and (1) requirements as to age, height, and Congressional approval of this regulation, (2) the employing office shall state clearly weight, unless the requirement is essential each employing office that employs one or that disabled veteran status is requested on to the performance of the duties of the posi- more covered employees or that seeks appli- a voluntary basis, that it will be kept con- tion; and cants for a covered position shall adopt its fidential in accordance with the Americans (2) physical requirements if, in the opinion written policy specifying how it has inte- with Disabilities Act (42 U.S.C. § 12101 et seq.) of the employing office, on the basis of evi- grated the veterans’ preference requirements as applied by section 102(a)(3) of the CAA, 2 dence before it, including any recommenda- of the Veterans Employment Opportunities U.S.C. § 1302(a)(3), that refusal to provide it tion of an accredited physician submitted by Act of 1998 and these regulations into its em- will not subject the individual to any ad- the employee, the preference eligible covered ployment and retention processes. Upon verse treatment except the possibility of an employee is physically able to perform effi- timely request and the demonstration of adverse determination regarding the individ- ciently the duties of the position. good cause, the Executive Director, in his/ ual’s status as a preference eligible applicant (b) If an employing office determines that her discretion, may grant such an employing as a disabled veteran under the VEOA, and a covered employee who is a preference eligi- office additional time for preparing its pol- that any information obtained in accordance ble as a disabled veteran as described in 5 icy. Each such employing office will make with this section concerning the medical U.S.C. § 2108(3)(c) and has a compensable its policies available to applicants for ap- condition or history of an individual will be service-connected disability of 30 percent or pointment to a covered position and to cov- collected, maintained and used only in ac- more is not able to fulfill the physical re- ered employees in accordance with these reg- cordance with the Americans with Disabil- quirements of the covered position, the em- ulations. The act of adopting a veterans’ ities Act (42 U.S.C. § 12101 et seq.) as applied ploying office shall notify the preference eli- preference policy shall not relieve any em- by section 102(a)(3) of the CAA, 2 U.S.C. gible covered employee of the reasons for the ploying office of any other responsibility or § 1302(a)(3).

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00064 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8793 (3) the employing office shall state clearly that are relevant and non-confidential con- the Congressional Accountability Act of 1995 that applicants may request information cerning the employing office’s veterans’ pref- (2 U.S.C. 1384(a)(2)(B)(iii)), the portions of about the employing office’s veterans’ pref- erence policies and practices. the issued regulations that are unclassified erence policies as they relate to appoint- SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUC- or classified with a ‘‘C’’ designation shall ments to covered positions, and shall de- TION IN FORCE. apply to all covered employees that are not scribe the employing office’s procedures for (a) Except as provided under subsection (c), employees of the House of Representatives or making such requests. a covered employee may not be released due employees of the Senate, and employing of- (c) Upon written request by an applicant to a reduction in force, unless the covered fices that are not offices of the House of Rep- for a covered position, an employing office employee and the covered employee’s exclu- resentatives or the Senate. shall provide the following information in sive representative for collective-bargaining (b) DEFINITIONS.—In this section, the terms writing: purposes (if any) are given written notice, in ‘‘employee of the House of Representatives’’, (1) the VEOA definition of veterans’ ‘‘pref- conformance with the requirements of para- ‘‘employee of the Senate’’, ‘‘covered em- erence eligible’’ as set forth in 5 U.S.C. § 2108 graph (b), at least 60 days before the covered ployee’’, and ‘‘employing office’’ have the or any superseding legislation, providing the employee is so released. meanings given the terms in section 101 of actual, current definition in a manner de- (b) Any notice under paragraph (a) shall in- the Congressional Accountability Act of 1995 signed to be understood by applicants, along clude— (2 U.S.C. 1301), except as limited by the regu- with the statutory citation; (1) the personnel action to be taken with lations (as corrected under section 3). (2) the employing office’s veterans’ pref- respect to the covered employee involved; SEC. 3. TECHNICAL CORRECTIONS. erence policy or a summary description of (2) the effective date of the action; (a) CURRENT NAMES OF OFFICES AND HEADS the employing office’s veterans’ preference (3) a description of the procedures applica- OF OFFICES.—A reference in the issued regu- policy as it relates to appointments to cov- ble in identifying employees for release; lations— ered positions, including any procedures the (4) the covered employee’s competitive (1) to the Capitol Guide Board or the Cap- employing office shall use to identify pref- area; itol Guide Service (which no longer exist) erence eligible employees; (5) the covered employee’s eligibility for shall be considered to be a reference to the (3) the employing office may provide other veterans’ preference in retention and how Office of Congressional Accessibility Serv- information to applicants regarding its vet- that preference eligibility was determined; ices; erans’ preference policies and practices, but (6) the retention status and preference eli- (2) to the Capitol Police Board shall be is not required to do so by these regulations. gibility of the other employees in the af- considered to be a reference to the Capitol (d) Employing offices are also expected to fected position classifications or job classi- Police; answer questions from applicants for covered fications within the covered employee’s com- positions that are relevant and non-confiden- (3) to the Senate Restaurants (which are petitive area, by providing: tial concerning the employing office’s vet- no longer public entities) shall be dis- (A) a list of all covered employee(s) in the erans’ preference policies and practices. regarded; and covered employee’s position classification or (4) in sections 1.110(b) and 1.121(c), to the SEC. 1.119. INFORMATION REGARDING VET- job classification and competitive area who ERANS’ PREFERENCE DETERMINA- director of an employing office shall be con- TIONS IN APPOINTMENTS. will be retained by the employing office, sidered to be a reference to the head of an Upon written request by an applicant for a identifying those employees by job title only employing office. covered position, the employing office shall and stating whether each such employee is (b) CROSS REFERENCES TO PROVISIONS OF promptly provide a written explanation of preference eligible, and REGULATIONS.—A reference in the issued reg- the manner in which veterans’ preference (B) a list of all covered employee(s) in the ulations— was applied in the employing office’s ap- covered employee’s position classification or (1) in paragraphs (l) and (m) of section pointment decision regarding that applicant. job classification and competitive area who 1.102, to subparagraphs (3) through (8) of Such explanation shall include at a min- will not be retained by the employing office, paragraph (g) of that section shall be consid- imum: identifying those employees by job title only ered to be a reference to paragraph (g) of (a) the employing office’s veterans’ pref- and stating whether each such employee is that section; erence policy or a summary description of preference eligible. (2) in section 1.102(l), to subparagraphs (aa) the employing office’s veterans’ preference (7) a description of any appeal or other through (dd) of section 1.102(g) shall be con- policy as it relates to appointments to cov- rights which may be available. sidered to be a reference to subparagraphs ered positions; and (c) The director of the employing office (aa) through (dd) of that section (as specified (b) a statement as to whether the applicant may, in writing, shorten the period of ad- in the regulations classified with an ‘‘H’’ is preference eligible and, if not, a brief vance notice required under subsection (a), classification); statement of the reasons for the employing with respect to a particular reduction in (3) in section 1.102(m), to subparagraphs office’s determination that the applicant is force, if necessary because of circumstances (aa) through (ee) of section 1.102(g) shall be not preference eligible. not reasonably foreseeable. considered to be a reference to subpara- SEC. 1.120. DISSEMINATION OF VETERANS’ PREF- (d) No notice period may be shortened to graphs (aa) through (ee) of that section (as ERENCE POLICIES TO COVERED EM- less than 30 days under this subsection. specified in the regulations classified with PLOYEES. (a) If an employing office that employs one f an ‘‘S’’ classification); or more covered employees provides any (4) in section 1.111(d), to section 1.102(o) written guidance to such employees con- SENATE CONCURRENT RESOLU- shall be considered to be a reference to sec- cerning employee rights generally or reduc- TION 77—TO PROVIDE FOR THE tion 1.102(p); and tions in force more specifically, such as in a APPROVAL OF FINAL REGULA- (5) in section 1.112, to section 1.102(h) shall written employee policy, manual or hand- TIONS ISSUED BY THE OFFICE be considered to be a reference to section book, such guidance must include informa- 1.102(i). OF COMPLIANCE TO IMPLEMENT (c) CROSS REFERENCES TO OTHER PROVI- tion concerning veterans’ preference under THE VETERANS EMPLOYMENT the VEOA, as set forth in subsection (b) of SIONS OF LAW.—A reference in the issued reg- this regulation. OPPORTUNITIES ACT OF 1998 ulations— (b) Written guidances described in sub- THAT APPLY TO CERTAIN LEGIS- (1) to the Veterans Employment Opportu- section (a) above shall include, at a min- LATIVE BRANCH EMPLOYING OF- nities Act shall be considered to be a ref- imum: FICES AND THEIR COVERED EM- erence to the Veterans Employment Oppor- (1) the VEOA definition of veterans’ ‘‘pref- PLOYEES tunities Act of 1998; erence eligible’’ as set forth in 5 U.S.C. § 2108 (2) to 2 U.S.C. 43d(a) shall be considered to or any superseding legislation, providing the Mr. SCHUMER (for himself and Mr. be a reference to section 105(a) of the Second actual, current definition along with the BENNETT) submitted the following con- Supplemental Appropriations Act, 1978; statutory citation; current resolution; which was consid- (3) to 2 U.S.C. 1316a(3) shall be considered (2) the employing office’s veterans’ pref- ered and agreed to: to be a reference to section 4(c)(3) of the Vet- erence policy or a summary description of erans Employment Opportunities Act of 1998; S. CON. RES. 77 the employing office’s veterans’ preference (4) to 5 U.S.C. 2108(3)(c) shall be considered policy as it relates to reductions in force, in- Resolved by the Senate (the House of Rep- to be a reference to section 2108(3)(C) of title cluding the procedures the employing office resentatives concurring), That the following 5, United States Code; shall take to identify preference eligible em- regulations issued by the Office of Compli- (5) to the Americans with Disabilities Act ployees. ance on March 21, 2008, and stated in section shall be considered to be a reference to the (3) the employing office may provide other 4, with the technical corrections described in Americans with Disabilities Act of 1990; information in its guidances regarding its section 3 and to the extent applied by section (6) to the Soil Conservation and Allotment veterans’ preference policies and practices, 2, are hereby approved: Act shall be considered to be a reference to but is not required to do so by these regula- SEC. 2. APPLICATION OF REGULATIONS. the Soil Conservation and Domestic Allot- tions. (a) IN GENERAL.—For purposes of applying ment Act; and (c) Employing offices are also expected to the issued regulations as a body of regula- (7) to the Agricultural Adjustment Act answer questions from covered employees tions required by section 304(a)(2)(B)(iii) of shall be considered to be a reference to the

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00065 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8794 CONGRESSIONAL RECORD — SENATE December 10, 2010 Agricultural Adjustment Act, reenacted with H Regs: (c) Scope of Regulations. The def- and (2) for service in the Reserves or Na- amendments by the Agricultural Marketing inition of ‘‘covered employee’’ in Section 4(c) tional Guard. Agreement Act of 1937. of the VEOA limits the scope of the statute’s (d) Appointment means an individual’s ap- (d) OTHER CORRECTIONS.—In the issued reg- applicability within the Legislative branch. pointment to employment in a covered posi- ulations— The term ‘‘covered employee’’ excludes any tion, but does not include any personnel ac- (1) section 1.109 shall be considered to have employee: (1) whose appointment is made by tion that an employing office takes with re- an ‘‘and’’ after paragraph (a); the President with the advice and consent of gard to an existing employee of the employ- (2) the second sentence of section 1.116 the Senate; (2) whose appointment is made ing office. shall be disregarded; by a Member of Congress within an employ- (e) Armed forces means the United States (3) section 1.118(b) shall be considered to ing office, as defined by Sec. 101 (9)(A–C) of Army, Navy, Air Force, Marine Corps, and have an ‘‘and’’ after paragraph (2) rather the CAA, 2 U.S.C. § 1301 (9)(A–C) or; (3) whose Coast Guard. than paragraph (1); appointment is made by a committee or sub- (f) Board means the Board of Directors of (4) a reference in sections 1.118(c)(1) and committee of either House of Congress or a the Office of Compliance. 1.120(b)(1) to veterans’ ‘‘preference eligible’’ joint committee of the House of Representa- H Regs: (g) Covered employee means any shall be considered to be a reference to tives and the Senate; or (4) who is appointed employee of (1) the House of Representatives; ‘‘preference eligible’’; to a position, the duties of which are equiva- and (2) the Senate; (3) the Capitol Guide (5) sections 1.118(c) and 1.120(b) shall be lent to those of a Senior Executive Service Board; (4) the Capitol Police Board; (5) the considered to have an ‘‘and’’ after paragraph position (within the meaning of section Congressional Budget Office; (6) the Office of (1); and 3132(a)(2) of title 5, United States Code). Ac- the Architect of the Capitol; (7) the Office of (6) section 1.121(b)(6)(B) shall be considered cordingly, these regulations shall not apply the Attending Physician; and (8) the Office of to have an ‘‘and’’ at the end. to any employing office that only employs Compliance, but does not include an em- SEC. 4. REGULATIONS. individuals excluded from the definition of ployee (aa) whose appointment is made by When approved by the House of Represent- covered employee. the President with the advice and consent of the Senate; (bb) whose appointment is made atives for the House of Representatives, S Regs: (c) Scope of Regulations. The defi- these regulations will have the prefix ‘‘H.’’ nition of ‘‘covered employee’’ in Section 4(c) by a Member of Congress; (cc) whose appoint- When approved by the Senate for the Senate, of the VEOA limits the scope of the statute’s ment is made by a committee or sub- these regulations will have the prefix ‘‘S.’’ applicability within the Legislative branch. committee of either House of Congress or a When approved by Congress for the other em- The term ‘‘covered employee’’ excludes any joint committee of the House of Representa- ploying offices covered by the CAA, these employee: (1) whose appointment is made by tives and the Senate; or (dd) who is ap- regulations will have the prefix ‘‘C.’’ the President with the advice and consent of pointed to a position, the duties of which are In this draft, ‘‘H&S Regs’’ denotes the provi- the Senate; (2) whose appointment is made equivalent to those of a Senior Executive sions that would be included in the regula- or directed by a Member of Congress within Service position (within the meaning of sec- tions applicable to be made applicable to the an employing office, as defined by Sec. tion 3132(a)(2) of title 5, United States Code). House and Senate, and ‘‘C Reg’’ denotes the 101(9)(A–C) of the CAA, 2 U.S.C. § 1301 (9)(A–C) The term covered employee includes an ap- provisions that would be included in the reg- or; (3) whose appointment is made by a com- plicant for employment in a covered position ulations to be made applicable to other em- mittee or subcommittee of either House of and a former covered employee. S. Regs: (g) Covered employee means any ploying offices. Congress or a joint committee of the House employees of (1) the House of Representa- PART 1—Extension of Rights and Protec- of Representatives and the Senate; (4) who is tions Relating to Veterans’ Preference Under tives; and (2) the Senate; (3) the Capitol appointed pursuant to 2 U.S.C. § 43d(a); or (5) Title 5, United States Code, to Covered Em- Guide Board; (4) the Capitol Police Board; (5) who is appointed to a position, the duties of ployees of the Legislative Branch (section the Congressional Budget Office; (6) the Of- which are equivalent to those of a Senior Ex- 4(c) of the Veterans Employment Opportuni- fice of the Architect of the Capitol; (7) the ecutive Service position (within the meaning ties Act of 1998) Office of the Attending Physician; and (8) the of section 3132(a)(2) of title 5, United States Office of Compliance, but does not include an SUBPART A—MATTERS OF GENERAL APPLICA- Code). Accordingly, these regulations shall employee (aa) whose appointment is made by BILITY TO ALL REGULATIONS PROMULGATED not apply to any employing office that only the President with the advice and consent of UNDER SECTION 4 OF THE VEOA employs individuals excluded from the defi- the Senate; (bb) whose appointment is made Sec. nition of covered employee. or directed by a Member of Congress; (cc) 1.101 Purpose and scope. C Reg: (c) Scope of Regulations. The defi- whose appointment is made by a committee 1.102 Definitions. nition of ‘‘covered employee’’ in Section 4(c) 1.103 Adoption of regulations. or subcommittee of either House of Congress of the VEOA limits the scope of the statute’s 1.104 Coordination with section 225 of the or a joint committee of the House of Rep- applicability within the Legislative branch. Congressional Accountability resentatives and the Senate; (dd) who is ap- The term ‘‘covered employee’’ excludes any Act. pointed pursuant to 2 U.S.C. § 43d(a); or (ee) employee: (1) whose appointment is made by SEC. 1.101. PURPOSE AND SCOPE. who is appointed to a position, the duties of the President with the advice and consent of (a) Section 4(c) of the VEOA. The Veterans which are equivalent to those of a Senior Ex- the Senate; (2) whose appointment is made Employment Opportunities Act (VEOA) ap- ecutive Service position (within the meaning by a Member of Congress or by a committee plies the rights and protections of sections of section 3132(a)(2) of title 5, United States or subcommittee of either House of Congress 2108, 3309 through 3312, and subchapter I of Code). The term covered employee includes or a joint committee of the House of Rep- chapter 35 of title 5 U.S.C., to certain cov- an applicant for employment in a covered resentatives and the Senate; or (3) who is ap- ered employees within the Legislative position and a former covered employee. pointed to a position, the duties of which are branch. C Reg: (g) Covered employee means any (b) Purpose of regulations. The regulations equivalent to those of a Senior Executive employee of (1) the Capitol Guide Service; (2) set forth herein are the substantive regula- Service position (within the meaning of sec- the Capitol Police; (3) the Congressional tions that the Board of Directors of the Of- tion 3132(a)(2) of title 5, United States Code). Budget Office; (4) the Office of the Architect fice of Compliance has promulgated pursuant Accordingly, these regulations shall not of the Capitol; (5) the Office of the Attending to section 4(c)(4) of the VEOA, in accordance apply to any employing office that only em- Physician; or (6) the Office of Compliance, with the rulemaking procedure set forth in ploys individuals excluded from the defini- but does not include an employee: (aa) whose section 304 of the CAA (2 U.S.C. § 1384). The tion of covered employee. appointment is made by the President with purpose of subparts B, C and D of these regu- SEC. 1.102. DEFINITIONS. the advice and consent of the Senate; or (bb) lations is to define veterans’ preference and Except as otherwise provided in these regu- whose appointment is made by a Member of the administration of veterans’ preference as lations, as used in these regulations: Congress or by a committee or sub- applicable to Federal employment in the (a) Accredited physician means a doctor of committee of either House of Congress or a Legislative branch. (5 U.S.C. § 2108, as applied medicine or osteopathy who is authorized to joint committee of the House of Representa- by the VEOA). The purpose of subpart E of practice medicine or surgery (as appropriate) tives and the Senate; or (cc) who is ap- these regulations is to ensure that the prin- by the State in which the doctor practices. pointed to a position, the duties of which are ciples of the veterans’ preference laws are in- The phrase ‘‘authorized to practice by the equivalent to those of a Senior Executive tegrated into the existing employment and State’’ as used in this section means that the Service position (within the meaning of sec- retention policies and processes of those em- provider must be authorized to diagnose and tion 3132(a)(2) of title 5, United States Code). ploying offices with employees covered by treat physical or mental health conditions The term covered employee includes an ap- the VEOA, and to provide for transparency without supervision by a doctor or other plicant for employment in a covered position in the application of veterans’ preference in health care provider. and a former covered employee. covered appointment and retention deci- (b) Act or CAA means the Congressional (h) Covered position means any position sions. Provided, nothing in these regulations Accountability Act of 1995, as amended (Pub. that is or will be held by a covered employee. shall be construed so as to require an em- L. 104–1, 109 Stat. 3, 2 U.S.C. §§ 1301–1438). (i) Disabled veteran means a person who ploying office to reduce any existing vet- (c) Active duty or active military duty was separated under honorable conditions erans’ preference rights and protections that means full-time duty with military pay and from active duty in the armed forces per- it may afford to preference eligible individ- allowances in the armed forces, except (1) for formed at any time and who has established uals. training or for determining physical fitness the present existence of a service-connected

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00066 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8795 disability or is receiving compensation, dis- (u) Veterans means persons as defined in 5 1.105 Responsibility for administration of ability retirement benefits, or pensions be- U.S.C. § 2108(1), or any superseding legisla- veterans’ preference. cause of a public statute administered by the tion. 1.106 Procedures for bringing claims under Department of Veterans Affairs or a military SEC. 1.103. ADOPTION OF REGULATIONS. the VEOA. department. (a) Adoption of regulations. Section SEC. 1.105. RESPONSIBILITY FOR ADMINISTRA- (j) Employee of the Office of the Architect 4(c)(4)(A) of the VEOA generally authorizes TION OF VETERANS’ PREFERENCE. of the Capitol includes any employee of the the Board to issue regulations to implement Subject to section 1.106, employing offices Office of the Architect of the Capitol, the Bo- section 4(c). In addition, section 4(c)(4)(B) of with covered employees or covered positions tanic Gardens, or the Senate Restaurants. the VEOA directs the Board to promulgate are responsible for making all veterans’ pref- (k) Employee of the Capitol Police Board regulations that are ‘‘the same as the most erence determinations, consistent with the includes any member or officer of the Cap- relevant substantive regulations (applicable VEOA. itol Police. with respect to the Executive branch) pro- SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS (l) Employee of the House of Representa- mulgated to implement the statutory provi- UNDER THE VEOA. tives includes an individual occupying a po- sions referred to in paragraph (2)’’ of section Applicants for appointment to a covered sition the pay of which is disbursed by the 4(c) of the VEOA. Those statutory provisions position and covered employees may contest Clerk of the House of Representatives, or an- are section 2108, sections 3309 through 3312, adverse veterans’ preference determinations, other official designated by the House of and subchapter I of chapter 35, of title 5, including any determination that a pref- Representatives, or any employment posi- United States Code. The regulations issued erence eligible applicant is not a qualified tion in an entity that is paid with funds de- by the Board herein are on all matters for applicant, pursuant to sections 401–416 of the rived from the clerk-hire allowance of the CAA, 2 U.S.C. §§ 1401–1416, and provisions of House of Representatives but not any such which section 4(c)(4)(B) of the VEOA requires law referred to therein; 206a(3) of the CAA, 2 individual employed by any entity listed in a regulation to be issued. Specifically, it is U.S.C. §§ 1401, 1316a(3); and the Office’s Proce- subparagraphs (3) through (8) of paragraph the Board’s considered judgment based on dural Rules. (g) above nor any individual described in the information available to it at the time of subparagraphs (aa) through (dd) of paragraph promulgation of these regulations, that, SUBPART C—VETERANS’ PREFERENCE IN (g) above. with the exception of the regulations adopt- APPOINTMENTS (m) Employee of the Senate includes any ed and set forth herein, there are no other Sec. employee whose pay is disbursed by the Sec- ‘‘substantive regulations (applicable with re- 1.107 Veterans’ preference in appointments to retary of the Senate, but not any such indi- spect to the Executive branch) promulgated restricted covered positions. vidual employed by any entity listed in sub- to implement the statutory provisions re- 1.108 Veterans’ preference in appointments to paragraphs (3) through (8) of paragraph (g) ferred to in paragraph (2)’’ of section 4(c) of non-restricted covered posi- above nor any individual described in sub- the VEOA that need be adopted. tions. paragraphs (aa) through (ee) of paragraph (g) (b) Modification of substantive regula- 1.109 Crediting experience in appointments to above. tions. As a qualification to the statutory ob- covered positions. H Regs: (n) Employing office means: (1) ligation to issue regulations that are ‘‘the 1.110 Waiver of physical requirements in ap- the personal office of a Member of the House same as the most substantive regulations pointments to covered posi- of Representatives; (2) a committee of the (applicable with respect to the Executive tions. House of Representatives or a joint com- branch)’’, section 4(c)(4)(B) of the VEOA au- SEC. 1.107. VETERANS’ PREFERENCE IN APPOINT- mittee of the House of Representatives and thorizes the Board to ‘‘determine, for good MENTS TO RESTRICTED POSITIONS. the Senate; or (3) any other office headed by cause shown and stated together with the In each appointment action for the posi- a person with the final authority to appoint, regulation, that a modification of such regu- tions of custodian, elevator operator, guard, hire, discharge, and set the terms, condi- lations would be more effective for the im- and messenger (as defined below and collec- tions, or privileges of the employment of an plementation of the rights and protections tively referred to in these regulations as re- employee of the House of Representatives or under’’ section 4(c) of the VEOA. stricted covered positions) employing offices the Senate. (c) Rationale for Departure from the Most shall restrict competition to preference eli- S Regs: (n) Employing office means: (1) Relevant Executive Branch Regulations. The gible applicants as long as qualified pref- the personal office of a Senator; (2) a com- Board concludes that it must promulgate erence eligible applicants are available. The mittee of the Senate or a joint committee of regulations accommodating the human re- provisions of sections 1.109 and 1.110 below the House of Representatives and the Senate; source systems existing in the Legislative shall apply to the appointment of a pref- or (3) any other office headed by a person branch; and that such regulations must take erence eligible applicant to a restricted cov- with the final authority to appoint, or be di- into account the fact that the Board does not ered position. The provisions of section 1.108 rected by a Member of Congress to appoint, possess the statutory and Executive Order shall apply to the appointment of a pref- hire, discharge, and set the terms, condi- based government-wide policy making au- erence eligible applicant to a restricted cov- tions, or privileges of the employment of an thority underlying OPM’s counterpart VEOA ered position, in the event that there is more employee of the House of Representatives or regulations governing the Executive branch. than one preference eligible applicant for the the Senate. OPM’s regulations are designed for the com- position. C Reg: (n) Employing office means: the petitive service (defined in 5 U.S.C. Custodian—One whose primary duty is the Capitol Guide Board, the Capitol Police § 2102(a)(2)), which does not exist in the em- performance of cleaning or other ordinary Board, the Congressional Budget Office, the ploying offices subject to this regulation. routine maintenance duties in or about a Office of the Architect of the Capitol, the Of- Therefore, to follow the OPM regulations government building or a building under fice of the Attending Physician, and the Of- would create detailed and complex rules and Federal control, park, monument, or other fice of Compliance. procedures for a workforce that does not Federal reservation. (o) Office means the Office of Compliance. exist in the Legislative branch, while pro- Elevator operator—One whose primary (p) Preference eligible means veterans, viding no VEOA protections to the covered duty is the running of freight or passenger spouses, widows, widowers or mothers who Legislative branch employees. We have cho- elevators. The work includes opening and meet the definition of ‘‘preference eligible’’ sen to propose specially tailored regulations, closing elevator gates and doors, working el- in 5 U.S.C. § 2108(3)(A)–(G). rather than simply to adopt those promul- (q) Qualified applicant means an applicant evator controls, loading and unloading the gated by OPM, so that we may effectuate elevator, giving information and directions for a covered position whom an employing Congress’ intent in extending the principles office deems to satisfy the requisite min- to passengers such as on the location of of- of the veterans’ preference laws to the Legis- fices, and reporting problems in running the imum job-related requirements of the posi- lative branch through the VEOA. tion. Where the employing office uses an en- elevator. SEC. 1.104. COORDINATION WITH SECTION 225 OF trance examination or evaluation for a cov- Guard—One whose primary duty is the as- THE CONGRESSIONAL ACCOUNT- signment to a station, beat, or patrol area in ered position that is numerically scored, the ABILITY ACT. term ‘‘qualified applicant’’ shall mean that a Federal building or a building under Fed- Statutory directive. Section 4(c)(4)(C) of eral control to prevent illegal entry of per- the applicant has received a passing score on the VEOA requires that promulgated regula- the examination or evaluation. sons or property; or required to stand watch tions must be consistent with section 225 of at or to patrol a Federal reservation, indus- (r) Separated under honorable conditions the CAA. Among the relevant provisions of means either an honorable or a general dis- trial area, or other area designated by Fed- section 225 are subsection (f)(1), which pre- eral authority, in order to protect life and charge from the armed forces. The Depart- scribes as a rule of construction that defini- ment of Defense is responsible for admin- property; make observations for detection of tions and exemptions in the laws made appli- fire, trespass, unauthorized removal of public istering and defining military discharges. cable by the CAA shall apply under the CAA, (s) Uniformed services means the armed property or hazards to Federal personnel or and subsection (f)(3), which states that the forces, the commissioned corps of the Public property. The term guard does not include CAA shall not be considered to authorize en- Health Service, and the commissioned corps law enforcement officer positions of the Cap- forcement of the CAA by the Executive of the National Oceanic and Atmospheric Ad- itol Police Board. ministration. branch. Messenger—One whose primary duty is the (t) VEOA means the Veterans Employment SUBPART B—VETERANS’ PREFERENCE— supervision or performance of general mes- Opportunities Act of 1998 (Pub. L. 105–339, 112 GENERAL PROVISIONS senger work (such as running errands, deliv- Stat. 3182). Sec. ering messages, and answering call bells).

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00067 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8796 CONGRESSIONAL RECORD — SENATE December 10, 2010 SEC. 1.108. VETERANS’ PREFERENCE IN APPOINT- spect to an appointment to a particular cov- (i) resulting from injury or disease re- MENTS TO NON-RESTRICTED COV- ered position, if necessary because of a need ceived in line of duty as a direct result of ERED POSITIONS. to fill the covered position immediately. armed conflict; or (a) Where an employing office has duly Should the preference eligible applicant (ii) caused by an instrumentality of war adopted a policy requiring the numerical make a timely response, the highest ranking and incurred in the line of duty during a pe- scoring or rating of applicants for covered individual or group of individuals with au- riod of war as defined by sections 101 and 1101 positions, the employing office shall add thority to make employment decisions on of title 38; points to the earned ratings of those pref- behalf of the employing office shall render a (B) his/her service does not include twenty erence eligible applicants who receive pass- final determination of the physical ability of or more years of full-time active service, re- ing scores in an entrance examination, in a the preference eligible applicant to perform gardless of when performed but not including manner that is proportionately comparable the duties of the position, taking into ac- periods of active duty for training; or to the points prescribed in 5 U.S.C. § 3309. For count the response and any additional infor- (C) on November 30, 1964, he/she was em- example, five preference points shall be mation provided by the preference eligible ployed in a position to which this subchapter granted to preference eligible applicants in a applicant. When the employing office has applies and thereafter he/she continued to be 100-point system, one point shall be granted completed its review of the proposed dis- so employed without a break in service of in a 20-point system, and so on. qualification on the basis of physical dis- more than 30 days. (b) In all other situations involving ap- ability, it shall send its findings to the pref- The definition of ‘‘preference eligible’’ as pointment to a covered position, employing erence eligible applicant. set forth in 5 U.S.C § 2108 and section 1.102(o) offices shall consider veterans’ preference (c) Nothing in this section shall relieve an of these regulations shall apply to waivers of eligibility as an affirmative factor in the em- employing office of any obligations it may physical requirements in determining an em- ploying office’s determination of who will be have pursuant to the Americans with Dis- ployee’s qualifications for retention under appointed from among qualified applicants. abilities Act (42 U.S.C. § 12101 et seq.) as ap- section 1.114 of these regulations. SEC. 1.109. CREDITING EXPERIENCE IN APPOINT- plied by section 102(a)(3) of the Act, 2 U.S.C. H&S Regs: (e) Reduction in force is any MENTS TO COVERED POSITIONS. § 1302(a)(3). termination of a covered employee’s employ- When considering applicants for covered SUBPART D—VETERANS’ PREFERENCE IN ment or the reduction in pay and/or position positions in which experience is an element REDUCTIONS IN FORCE grade of a covered employee for more than 30 of qualification, employing offices shall pro- Sec. days and that may be required for budgetary vide preference eligible applicants with cred- 1.111. Definitions applicable in reductions in or workload reasons, changes resulting from it: force. reorganization, or the need to make room for (a) for time spent in the military service 1.112. Application of preference in reductions an employee with reemployment or restora- (1) as an extension of time spent in the posi- in force. tion rights. The term ‘‘reduction in force’’ tion in which the applicant was employed 1.113. Crediting experience in reductions in does not encompass a termination or other immediately before his/her entrance into the force. personnel action: (1) predicated upon per- military service, or (2) on the basis of actual 1.114. Waiver of physical requirements in re- formance, conduct or other grounds attrib- duties performed in the military service, or ductions in force. utable to an employee, or (2) involving an (3) as a combination of both methods. Em- 1.115. Transfer of functions. employee who is employed by the employing ploying offices shall credit time spent in the SEC. 1.111. DEFINITIONS APPLICABLE IN REDUC- office on a temporary basis, or (3) attrib- military service according to the method TIONS IN FORCE. utable to a change in party leadership or ma- that will be of most benefit to the preference (a) Competing covered employees are the jority party status within the House of Con- eligible applicant. covered employees within a particular posi- gress where the employee is employed. (b) for all experience material to the posi- tion or job classification, at or within a par- C Reg: (e) Reduction in force is any ter- tion for which the applicant is being consid- ticular competitive area, as those terms are mination of a covered employee’s employ- ered, including experience gained in reli- defined below. ment or the reduction in pay and/or position gious, civic, welfare, service, and organiza- (b) Competitive area is that portion of the grade of a covered employee for more than 30 tional activities, regardless of whether he/ employing office’s organizational structure, days and that may be required for budgetary she received pay therefor. as determined by the employing office, in or workload reasons, changes resulting from SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS which covered employees compete for reten- reorganization, or the need to make room for IN APPOINTMENTS TO COVERED PO- tion. A competitive area must be defined an employee with reemployment or restora- SITIONS. solely in terms of the employing office’s or- tion rights. The term ‘‘reduction in force’’ (a) Subject to (c) below, in determining ganizational unit(s) and geographical loca- does not encompass a termination or other qualifications of a preference eligible for ap- tion, and it must include all employees with- personnel action: (1) predicated upon per- pointment, an employing office shall waive: in the competitive area so defined. A com- formance, conduct or other grounds attrib- (1) with respect to a preference eligible ap- petitive area may consist of all or part of an utable to an employee, or (2) involving an plicant, requirements as to age, height, and employing office. The minimum competitive employee who is employed by the employing weight, unless the requirement is essential area is a department or subdivision of the office on a temporary basis. to the performance of the duties of the posi- employing office within the local commuting (f) Undue interruption is a degree of inter- tion; and area. ruption that would prevent the completion (2) with respect to a preference eligible ap- (c) Position classifications or job classi- of required work by a covered employee 90 plicant to whom it has made a conditional fications are determined by the employing days after the employee has been placed in a offer of employment, physical requirements office, and shall refer to all covered positions different position under this part. The 90-day if, in the opinion of the employing office, on within a competitive area that are in the standard should be considered within the al- the basis of evidence before it, including any same grade, occupational level or classifica- lowable limits of time and quality, taking recommendation of an accredited physician tion, and which are similar enough in duties, into account the pressures of priorities, submitted by the preference eligible appli- qualification requirements, pay schedules, deadlines, and other demands. However, cant, the preference eligible applicant is tenure (type of appointment) and working work generally would not be considered to be physically able to perform efficiently the du- conditions so that an employing office may unduly interrupted if a covered employee ties of the position; reassign the incumbent of one position to needs more than 90 days after the reduction (b) Subject to (c) below, if an employing of- any of the other positions in the position in force to perform the optimum quality or fice determines, on the basis of evidence be- classification without undue interruption. quantity of work. The 90-day standard may fore it, including any recommendation of an (d) Preference Eligibles. For the purpose of be extended if placement is made under this accredited physician submitted by the pref- applying veterans’ preference in reductions part to a program accorded low priority by erence eligible applicant, that an applicant in force, except with respect to the applica- the employing office, or to a vacant position. to whom it has made a conditional offer of tion of section 1.114 of these regulations re- SEC. 1.112. APPLICATION OF PREFERENCE IN RE- employment is preference eligible as a dis- garding the waiver of physical requirements, DUCTIONS IN FORCE. abled veteran as described in 5 U.S.C. the following shall apply: Prior to carrying out a reduction in force § 2108(3)(c) and who has a compensable serv- (1) ‘‘active service’’ has the meaning given that will affect covered employees, employ- ice-connected disability of 30 percent or it by section 101 of title 37; ing offices shall determine which, if any, more is not able to fulfill the physical re- (2) ‘‘a retired member of a uniformed serv- covered employees within a particular group quirements of the covered position, the em- ice’’ means a member or former member of a of competing covered employees are entitled ploying office shall notify the preference eli- uniformed service who is entitled, under to veterans’ preference eligibility status in gible applicant of the reasons for the deter- statute, to retired, retirement, or retainer accordance with these regulations. In deter- mination and of the right to respond and to pay on account of his/her service as such a mining which covered employees will be re- submit additional information to the em- member; and tained, employing offices will treat veterans’ ploying office, within 15 days of the date of (3) a preference eligible covered employee preference as the controlling factor in reten- the notification. The director of the employ- who is a retired member of a uniformed serv- tion decisions among such competing cov- ing office may, by providing written notice ice is considered a preference eligible only if ered employees, regardless of length of serv- to the preference eligible applicant, shorten (A) his/her retirement was based on dis- ice or performance, provided that the pref- the period for submitting a response with re- ability— erence eligible employee’s performance has

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00068 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8797 not been determined to be unacceptable. sponse, the highest ranking individual or sulting policies are consistent with the Provided, a preference eligible employee who group of individuals with authority to make VEOA and these regulations. is a ‘‘disabled veteran’’ under section 1.102(h) employment decisions on behalf of the em- above who has a compensable service-con- ploying office, shall render a final deter- SEC. 1.117. PRESERVATION OF RECORDS MADE OR KEPT. nected disability of 30 percent or more and mination of the physical ability of the pref- whose performance has not been determined erence eligible covered employee to perform An employing office that employs one or to be unacceptable by an employing office is the duties of the covered position, taking more covered employees or that seeks appli- entitled to be retained in preference to other into account the evidence before it, includ- cants for a covered position shall maintain preference eligible employees. Provided, this ing the response and any additional informa- any records relating to the application of its section does not relieve an employing office tion provided by the preference eligible. veterans’ preference policy to applicants for of any greater obligation it may be subject When the employing office has completed its covered positions and to workforce adjust- to pursuant to the Worker Adjustment and review of the proposed disqualification on ment decisions affecting covered employees Retraining Notification Act (29 U.S.C. § 2101 the basis of physical disability, it shall send for a period of at least one year from the et seq.) as applied by section 102(a)(9) of the its findings to the preference eligible covered date of the making of the record or the date CAA, 2 U.S.C. § 1302(a)(9). employee. of the personnel action involved or, if later, SEC. 1.113. CREDITING EXPERIENCE IN REDUC- (c) Nothing in this section shall relieve an one year from the date on which the appli- TIONS IN FORCE. employing office of any obligation it may cant or covered employee is notified of the In computing length of service in connec- have pursuant to the Americans with Dis- personnel action. Where a claim has been tion with a reduction in force, the employing abilities Act (42 U.S.C. § 12101 et seq.) as ap- brought under section 401 of the CAA against office shall provide credit to preference eligi- plied by section 102(a)(3) of the CAA, 2 U.S.C. an employing office under the VEOA, the re- ble covered employees as follows: § 1302(a)(3). spondent employing office shall preserve all (a) a preference eligible covered employee SEC. 1.115. TRANSFER OF FUNCTIONS. personnel records relevant to the claim until who is not a retired member of a uniformed (a) When a function is transferred from one final disposition of the claim. The term ‘‘per- service is entitled to credit for the total employing office to another employing of- sonnel records relevant to the claim’’, for ex- length of time in active service in the armed fice, each covered employee in the affected ample, would include records relating to the forces; position classifications or job classifications veterans’ preference determination regard- (b) a preference eligible covered employee in the function that is to be transferred shall ing the person bringing the claim and who is a retired member of a uniformed serv- be transferred to the receiving employing of- records relating to any veterans’ preference ice is entitled to credit for: fice for employment in a covered position for determinations regarding other applicants (1) the length of time in active service in which he/she is qualified before the receiving for the covered position the person sought, the armed forces during a war, or in a cam- employing office may make an appointment or records relating to the veterans’ pref- paign or expedition for which a campaign from another source to that position. erence determinations regarding other cov- badge has been authorized; or (b) When one employing office is replaced ered employees in the person’s position or (2) the total length of time in active serv- by another employing office, each covered job classification. The date of final disposi- ice in the armed forces if he is included employee in the affected position classifica- tion of the charge or the action means the under 5 U.S.C. § 3501(a)(3)(A), (B), or (C); and tions or job classifications in the employing latest of the date of expiration of the statu- (c) a preference eligible covered employee office to be replaced shall be transferred to tory period within which the aggrieved per- is entitled to credit for: the replacing employing office for employ- son may file a complaint with the Office or (1) service rendered as an employee of a ment in a covered position for which he/she in a U.S. District Court or, where an action county committee established pursuant to is qualified before the replacing employing is brought against an employing office by section 8(b) of the Soil Conservation and Al- office may make an appointment from an- the aggrieved person, the date on which such lotment Act or of a committee or association other source to that position. litigation is terminated. of producers described in section 10(b) of the SUBPART E—ADOPTION OF VETERANS’ PREF- SEC. 1.118. DISSEMINATION OF VETERANS’ PREF- Agricultural Adjustment Act; and ERENCE POLICIES, RECORDKEEPING & INFOR- ERENCE POLICIES TO APPLICANTS (2) service rendered as an employee de- MATIONAL REQUIREMENTS. FOR COVERED POSITIONS. scribed in 5 U.S.C. § 2105(c) if such employee Sec. (a) An employing office shall state in any moves or has moved, on or after January 1, 1.116. Adoption of veterans’ preference pol- announcements and advertisements it makes 1966, without a break in service of more than icy. concerning vacancies in covered positions 3 days, from a position in a nonappropriated 1.117. Preservation of records made or kept. that the staffing action is governed by the fund instrumentality of the Department of 1.118. Dissemination of veterans’ preference VEOA. Defense or the Coast Guard to a position in policies to applicants for cov- the Department of Defense or the Coast ered positions. (b) An employing office shall invite appli- Guard, respectively, that is not described in 1.119. Information regarding veterans’ pref- cants for a covered position to identify 5 U.S.C. § 2105(c). erence determinations in ap- themselves as veterans’ preference eligible SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS pointments. applicants, provided that in doing so: IN REDUCTIONS IN FORCE. 1.120. Dissemination of veterans’ preference (1) the employing office shall state clearly (a) If an employing office determines, on policies to covered employees. on any written application or questionnaire the basis of evidence before it, that a covered 1.121. Written notice prior to a reduction in used for this purpose or make clear orally, if employee is preference eligible, the employ- force. a written application or questionnaire is not ing office shall waive, in determining the SEC. 1.116. ADOPTION OF VETERANS’ PREF- used, that the requested information is in- covered employee’s retention status in a re- ERENCE POLICY. tended for use solely in connection with the duction in force: No later than 120 calendar days following employing office’s obligations and efforts to (1) requirements as to age, height, and Congressional approval of this regulation, provide veterans’ preference to preference el- weight, unless the requirement is essential each employing office that employs one or igible applicants in accordance with the to the performance of the duties of the posi- more covered employees or that seeks appli- VEOA; and tion; and cants for a covered position shall adopt its (2) the employing office shall state clearly (2) physical requirements if, in the opinion written policy specifying how it has inte- that disabled veteran status is requested on of the employing office, on the basis of evi- grated the veterans’ preference requirements a voluntary basis, that it will be kept con- dence before it, including any recommenda- of the Veterans Employment Opportunities fidential in accordance with the Americans tion of an accredited physician submitted by Act of 1998 and these regulations into its em- with Disabilities Act (42 U.S.C. § 12101 et seq.) the employee, the preference eligible covered ployment and retention processes. Upon as applied by section 102(a)(3) of the CAA, 2 employee is physically able to perform effi- timely request and the demonstration of U.S.C. § 1302(a)(3), that refusal to provide it ciently the duties of the position. good cause, the Executive Director, in his/ will not subject the individual to any ad- (b) If an employing office determines that her discretion, may grant such an employing verse treatment except the possibility of an a covered employee who is a preference eligi- office additional time for preparing its pol- adverse determination regarding the individ- ble as a disabled veteran as described in 5 icy. Each such employing office will make ual’s status as a preference eligible applicant U.S.C. § 2108(3)(c) and has a compensable its policies available to applicants for ap- as a disabled veteran under the VEOA, and service-connected disability of 30 percent or pointment to a covered position and to cov- that any information obtained in accordance more is not able to fulfill the physical re- ered employees in accordance with these reg- with this section concerning the medical quirements of the covered position, the em- ulations. The act of adopting a veterans’ condition or history of an individual will be ploying office shall notify the preference eli- preference policy shall not relieve any em- collected, maintained and used only in ac- gible covered employee of the reasons for the ploying office of any other responsibility or cordance with the Americans with Disabil- determination and of the right to respond requirement of the Veterans Employment ities Act (42 U.S.C. § 12101 et seq.) as applied and to submit additional information to the Opportunity Act of 1998 or these regulations. by section 102(a)(3) of the CAA, 2 U.S.C. employing office within 15 days of the date of An employing office may amend or replace § 1302(a)(3). the notification. Should the preference eligi- its veterans’ preference policies as it deems (3) the employing office shall state clearly ble covered employee make a timely re- necessary or appropriate, so long as the re- that applicants may request information

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00069 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8798 CONGRESSIONAL RECORD — SENATE December 10, 2010 about the employing office’s veterans’ pref- cerning the employing office’s veterans’ pref- H.R. 4853, to amend the Internal Revenue erence policies as they relate to appoint- erence policies and practices. Code of 1986 to extend the funding and ex- ments to covered positions, and shall de- SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUC- penditure authority of the Airport and Air- scribe the employing office’s procedures for TION IN FORCE. way Trust Fund, to amend title 49, United making such requests. (a) Except as provided under subsection (c), States Code, to extend authorizations for the (c) Upon written request by an applicant a covered employee may not be released due airport improvement program, and for other for a covered position, an employing office to a reduction in force, unless the covered purposes; which was ordered to lie on the shall provide the following information in employee and the covered employee’s exclu- table. writing: sive representative for collective-bargaining SA 4762. Ms. LANDRIEU (for herself, Mr. (1) the VEOA definition of veterans’ ‘‘pref- purposes (if any) are given written notice, in VITTER, and Mr. WICKER) submitted an erence eligible’’ as set forth in 5 U.S.C. § 2108 conformance with the requirements of para- amendment intended to be proposed to or any superseding legislation, providing the graph (b), at least 60 days before the covered amendment SA 4753 proposed by Mr. REID actual, current definition in a manner de- employee is so released. (for himself and Mr. MCCONNELL) to the bill signed to be understood by applicants, along (b) Any notice under paragraph (a) shall in- H.R. 4853, supra; which was ordered to lie on with the statutory citation; clude— the table. (2) the employing office’s veterans’ pref- (1) the personnel action to be taken with SA 4763. Mr. BROWN of Ohio (for himself erence policy or a summary description of respect to the covered employee involved; and Ms. STABENOW) submitted an amendment the employing office’s veterans’ preference (2) the effective date of the action; intended to be proposed to amendment SA policy as it relates to appointments to cov- (3) a description of the procedures applica- 4753 proposed by Mr. REID (for himself and ered positions, including any procedures the ble in identifying employees for release; Mr. MCCONNELL) to the bill H.R. 4853, supra; employing office shall use to identify pref- (4) the covered employee’s competitive which was ordered to lie on the table. erence eligible employees; area; f (3) the employing office may provide other (5) the covered employee’s eligibility for information to applicants regarding its vet- veterans’ preference in retention and how TEXT OF AMENDMENTS erans’ preference policies and practices, but that preference eligibility was determined; is not required to do so by these regulations. (6) the retention status and preference eli- SA 4759. Mr. WICKER submitted an (d) Employing offices are also expected to gibility of the other employees in the af- amendment intended to be proposed to answer questions from applicants for covered fected position classifications or job classi- amendment SA 4753 proposed by Mr. positions that are relevant and non-confiden- fications within the covered employee’s com- REID (for himself and Mr. MCCONNELL) tial concerning the employing office’s vet- petitive area, by providing: to the bill H.R. 4853, to amend the In- erans’ preference policies and practices. (A) a list of all covered employee(s) in the ternal Revenue Code of 1986 to extend SEC. 1.119. INFORMATION REGARDING VET- covered employee’s position classification or the funding and expenditure authority ERANS’ PREFERENCE DETERMINA- job classification and competitive area who TIONS IN APPOINTMENTS. will be retained by the employing office, of the Airport and Airway Trust Fund, Upon written request by an applicant for a identifying those employees by job title only to amend title 49, United States Code, covered position, the employing office shall and stating whether each such employee is to extend authorizations for the air- promptly provide a written explanation of preference eligible, and port improvement program, and for the manner in which veterans’ preference (B) a list of all covered employee(s) in the other purposes; which was ordered to was applied in the employing office’s ap- covered employee’s position classification or lie on the table; as follows: pointment decision regarding that applicant. job classification and competitive area who At the end, add the following: Such explanation shall include at a min- will not be retained by the employing office, imum: identifying those employees by job title only TITLE l—OIL RECOVERY ZONE (a) the employing office’s veterans’ pref- and stating whether each such employee is SEC. ll1. SHORT TITLE. erence policy or a summary description of preference eligible. This title may be cited as the ‘‘Oil Recov- the employing office’s veterans’ preference (7) a description of any appeal or other ery Zone Act’’. policy as it relates to appointments to cov- rights which may be available. SEC. ll2. RECOVERY ZONE; GULF OIL SPILL. ered positions; and (c) The director of the employing office For purposes of this title— (b) a statement as to whether the applicant may, in writing, shorten the period of ad- (1) RECOVERY ZONE.—The term ‘‘Recovery is preference eligible and, if not, a brief vance notice required under subsection (a), Zone’’ means the following counties and par- statement of the reasons for the employing with respect to a particular reduction in ishes under the unified Coast Guard com- office’s determination that the applicant is force, if necessary because of circumstances mand that responded to the Gulf oil spill: not preference eligible. not reasonably foreseeable. (A) The counties of Escambia, Santa Rosa, SEC. 1.120. DISSEMINATION OF VETERANS’ PREF- (d) No notice period may be shortened to Okaloosa, Walton, Bay, Gulf, Franklin, and ERENCE POLICIES TO COVERED EM- less than 30 days under this subsection. PLOYEES. Wakulla in the State of Florida. (a) If an employing office that employs one f (B) The counties of Mobile and Baldwin in or more covered employees provides any AMENDMENTS SUBMITTED AND the State of Alabama. written guidance to such employees con- PROPOSED (C) The counties of Hancock, Harrison, and cerning employee rights generally or reduc- Jackson in the State of Mississippi. tions in force more specifically, such as in a SA 4759. Mr. WICKER submitted an amend- (D) The parishes of Orleans, St. Tammany, written employee policy, manual or hand- ment intended to be proposed to amendment St. Bernard, Plaquemines, Jefferson, book, such guidance must include informa- SA 4753 proposed by Mr. REID (for himself Lafourche, Terrebonne, St. Mary, Iberia, tion concerning veterans’ preference under and Mr. MCCONNELL) to the bill H.R. 4853, to Vermilion, and Cameron in the State of Lou- the VEOA, as set forth in subsection (b) of amend the Internal Revenue Code of 1986 to isiana. this regulation. extend the funding and expenditure author- (2) GULF OIL SPILL.—The term ‘‘Gulf oil (b) Written guidances described in sub- ity of the Airport and Airway Trust Fund, to spill’’ means the discharge of oil by reason of section (a) above shall include, at a min- amend title 49, United States Code, to extend the explosion on, and sinking of, the mobile imum: authorizations for the airport improvement offshore drilling unit Deepwater Horizon. (1) the VEOA definition of veterans’ ‘‘pref- program, and for other purposes; which was SEC. ll3. NON-RECOGNITION OF INCOME FROM erence eligible’’ as set forth in 5 U.S.C. § 2108 ordered to lie on the table. INSURANCE PROCEEDS WHICH ARE or any superseding legislation, providing the SA 4760. Mrs. GILLIBRAND (for Mr. AKAKA REINVESTED IN THE RECOVERY actual, current definition along with the (for himself, Ms. COLLINS, Mr. GRASSLEY, Mr. ZONE. statutory citation; LIEBERMAN, and Mr. VOINOVICH)) proposed an (a) IN GENERAL.—For purposes of the Inter- (2) the employing office’s veterans’ pref- amendment to the bill S. 372, to amend chap- nal Revenue Code of 1986, amounts received erence policy or a summary description of ter 23 of title 5, United States Code, to clar- from any qualified Gulf oil spill payment the employing office’s veterans’ preference ify the disclosures of information protected shall be recognized only to the extent that policy as it relates to reductions in force, in- from prohibited personnel practices, require the amount realized exceeds the qualified in- cluding the procedures the employing office a statement in nondisclosure policies, forms, vestments made by the taxpayer with re- shall take to identify preference eligible em- and agreements that such policies, forms, spect to such qualified Gulf oil spill pay- ployees. and agreements conform with certain disclo- ment. (3) the employing office may provide other sure protections, provide certain authority (b) QUALIFIED GULF OIL SPILL PAYMENT.— information in its guidances regarding its for the Special Counsel, and for other pur- For purposes of this section, the term veterans’ preference policies and practices, poses. ‘‘qualified Gulf oil spill payment’’ means— but is not required to do so by these regula- SA 4761. Ms. LANDRIEU (for herself, Mr. (1) any proceeds or payments from insur- tions. VITTER, and Mr. WICKER) submitted an ance received in connection with the Gulf oil (c) Employing offices are also expected to amendment intended to be proposed to spill, or answer questions from covered employees amendment SA 4753 proposed by Mr. REID (2) any payment for damages attributable that are relevant and non-confidential con- (for himself and Mr. MCCONNELL) to the bill to the Gulf oil spill under section 1002 of the

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Oil Pollution Act of 1990 (33 U.S.C. 2702) or (B) SAFE HARBOR FOR CERTAIN SMALL BUSI- SECTION 1. SHORT TITLE. from the Gulf Coast Claims Facility in con- NESSES.—In the case of any taxpayer oper- This Act may be cited as the ‘‘Whistle- nection with the Gulf oil spill. ating a trade or business in the recovery blower Protection Enhancement Act of (c) QUALIFIED INVESTMENT.—For purposes zone the gross revenues of whom for any tax- 2010’’. of this section— able year ending after April 20, 2010, and be- TITLE I—PROTECTION OF CERTAIN DIS- (1) IN GENERAL.—The term ‘‘qualified in- fore October 1, 2011, do not exceed $5,000,000, CLOSURES OF INFORMATION BY FED- vestment’’ means, with respect to any quali- such term means the amount of the net oper- ERAL EMPLOYEES fied Gulf oil spill payment, the sum of the ating loss (as so defined) of such business for qualified recovery zone investments which SEC. 101. CLARIFICATION OF DISCLOSURES COV- such taxable year. ERED. are made by the taxpayer before the date (C) COORDINATION WITH QUALIFIED DISASTER which is 6 months after the later of— (a) IN GENERAL.—Section 2302(b)(8) of title LOSSES.—Such term shall not include any 5, United States Code, is amended— (A) the date of the qualified Gulf oil spill qualified disaster loss (as defined in section payment, or (1) in subparagraph (A)(i)— 172(j) of the Internal Revenue Code of 1986). (A) by striking ‘‘a violation’’ and inserting (B) the date of the enactment of this Act. (2) COORDINATION WITH SUBSECTION (b)(2).— In the case of any qualified recovery zone in- ‘‘any violation’’; and For purposes of applying section 172(b)(2) of (B) by adding ‘‘except for an alleged viola- vestment made with respect to a qualified such Code, a qualified oil spill loss for any recovery zone trade or business described in tion that is a minor, inadvertent violation, taxable year shall be treated in a manner and occurs during the conscientious carrying paragraph (3)(A), the preceding sentence similar to the manner in which a specified li- shall be applied by substituting ‘‘5 years’’ for out of official duties,’’ after ‘‘regulation,’’; ability loss (as defined in section 172(f) of and ‘‘6 months’’. such Code) is treated. (2) QUALIFIED RECOVERY ZONE INVEST- (2) in subparagraph (B)(i)— (3) ELECTION.— (A) by striking ‘‘a violation’’ and inserting MENT.—The term ‘‘qualified recovery zone in- (A) IN GENERAL.—Any taxpayer entitled to vestment’’ means sum of— ‘‘any violation (other than a violation of this a carryback under subsection (a) from any section)’’; and (A) amounts paid or incurred for tangible loss year may elect to have the carryback property (to which section 168 of the Internal (B) by adding ‘‘except for an alleged viola- period with respect to such loss year deter- tion that is a minor, inadvertent violation, Revenue Code of 1986 applies) acquired by mined without regard to subsection (a). purchase (within the meaning of section and occurs during the conscientious carrying (B) PROCEDURE.—Any election under sub- out of official duties,’’ after regulation,’’. 179(d)(2) of such Code) for use in the active section (a) or subparagraph (A) shall be made (b) PROHIBITED PERSONNEL PRACTICES conduct of a qualified recovery zone trade or in such manner as may be prescribed by the UNDER SECTION 2302(b)(9).— business, plus Secretary and shall be made by the due date (1) TECHNICAL AND CONFORMING AMEND- (B) amounts paid or incurred for start-up (including extensions of time) for filing the MENTS.—Title 5, United States Code, is expenditures (as defined in section 195(c)) in taxpayer’s return for the taxable year of the connection with a qualified recovery zone amended in subsections (a)(3), (b)(4)(A), and net operating loss. Such election, once made (b)(4)(B)(i) of section 1214, in subsections (a), trade or business. for any taxable year, shall be irrevocable for (3) QUALIFIED RECOVERY ZONE TRADE OR (e)(1), and (i) of section 1221, and in sub- such taxable year. BUSINESS section (a)(2)(C)(i) of section 2302, by insert- .—The term ‘‘qualified recovery (d) CERTAIN TAXPAYERS EXCLUDED.—Sub- ing ‘‘or section 2302(b)(9) (A)(i), (B), (C), or zone trade or business’’ means— section (a) shall not apply to any taxpayer (D)’’ after ‘‘section 2302(b)(8)’’ or ‘‘(b)(8)’’ (A) any commercial or charter fishing busi- that, during calendar year 2010, owned, oper- ness, or ated, or had a contract to operate the mobile each place it appears. (B) any hotel, lodging, recreation, enter- offshore drilling unit Deepwater Horizon. (2) OTHER REFERENCES.—(A) Title 5, United tainment, or restaurant business located in (e) EFFECTIVE DATE.— States Code, is amended in subsection the recovery zone. (1) IN GENERAL.—Except as otherwise pro- (b)(4)(B)(i) of section 1214 and in subsection (d) REDUCTION IN BASIS.—For purposes of vided in this subsection, this section shall (e)(1) of section 1221, by inserting ‘‘or pro- section 1016 of the Internal Revenue Code of apply to net operating losses (as so defined) tected activity’’ after ‘‘disclosure’’ each 1986, the basis in any qualified investment arising in taxable years ending after April 20, place it appears. shall be reduced (but not below zero) by the 2010. (B) Section 2302(b)(9) of title 5, United amount of qualified gulf oil spill payments (2) TRANSITION RULE.—In the case of a net States Code, is amended— not recognized under this section. The Sec- operating loss (as so defined) for a taxable (i) by striking subparagraph (A)and insert- retary of the Treasury shall issue guidance year ending before the date of the enactment ing the following: providing for the allocation of the reduction of this Act— ‘‘(A) the exercise of any appeal, complaint, of basis among qualified investments. (A) notwithstanding subsection or grievance right granted by any law, rule, SEC. ll4. 5-YEAR NET OPERATING LOSS or regulation— CARRYBACK FOR CERTAIN OIL (b)(1)(H)(iii)(II) or (b)(3) of section 172 of the Internal Revenue Code of 1986, any election ‘‘(i) with regard to remedying a violation SPILL-RELATED LOSSES. of paragraph (8); or (a) IN GENERAL.—For purposes of the Inter- made under such subsections with respect to ‘‘(ii) with regard to remedying a violation nal Revenue Code of 1986, in the case of a such loss may be revoked before the applica- of any other law, rule, or regulation;’’; and taxpayer which has a qualified oil spill loss ble date, (ii) in subparagraph (B), by inserting ‘‘(i) (as defined in subsection (c)) for a taxable (B) any election made under subsection (a) or (ii)’’ after ‘‘subparagraph (A)’’. year, such qualified oil spill loss shall be a with respect to such loss shall (notwith- net operating loss carryback under section standing such section) be treated as timely (C) Section 2302 of title 5, United States 172 of such Code to the elected number of made if made before the applicable date, and Code, is amended by adding at the end the taxable years preceding the taxable year of (C) any application under section 6411(a) of following: such loss. such Code with respect to such loss shall be ‘‘(f)(1) A disclosure shall not be excluded (b) ELECTED NUMBER OF TAXABLE YEARS.— treated as timely filed if filed before the ap- from subsection (b)(8) because— For purposes of subsection (a), the elected plicable date. ‘‘(A) the disclosure was made to a person, including a supervisor, who participated in number of taxable years is any whole num- For purposes of this paragraph, the term ber elected by the taxpayer which is more an activity that the employee or applicant ‘‘applicable date’’ means the date which is 60 reasonably believed to be covered by sub- than 2 and less than 6. days after the date of the enactment of this (c) QUALIFIED OIL SPILL LOSSES.—For pur- section (b)(8)(A)(ii); Act. poses of this section— ‘‘(B) the disclosure revealed information (1) DEFINITION.— SA 4760. Mrs. GILLIBRAND (for Mr. that had been previously disclosed; (A) IN GENERAL.—Except as otherwise pro- ‘‘(C) of the employee’s or applicant’s mo- AKAKA (for himself, Ms. COLLINS, Mr. vided in this paragraph, the term ‘‘qualified tive for making the disclosure; oil spill loss’’ means the lesser of— GRASSLEY, Mr. LIEBERMAN, and Mr. ‘‘(D) the disclosure was not made in writ- (i) the excess of— VOINOVICH)) proposed an amendment to ing; (I) the amount of losses in a taxable year the bill S. 372, to amend chapter 23 of ‘‘(E) the disclosure was made while the em- ending after April 20, 2010, and before Octo- title 5, United States Code, to clarify ployee was off duty; or ber 1, 2011, incurred by any trade or business the disclosures of information pro- ‘‘(F) of the amount of time which has operating in the recovery zone and attrib- tected from prohibited personnel prac- passed since the occurrence of the events de- utable to the Gulf oil spill, over tices, require a statement in nondisclo- scribed in the disclosure. (II) amounts received during such taxable sure policies, forms, and agreements ‘‘(2) If a disclosure is made during the nor- year as payments for lost profits and earning that such policies, forms, and agree- mal course of duties of an employee, the dis- capacity under section 1002(b)(2)(E) of the Oil closure shall not be excluded from sub- Pollution Act of 1990 (33 U.S.C. 2702(b)(2)(E)) ments conform with certain disclosure section (b)(8) if any employee who has au- or from the Gulf Coast Claims Facility in protections, provide certain authority thority to take, direct others to take, rec- connection with the Gulf oil spill, or for the Special Counsel, and for other ommend, or approve any personnel action (ii) the amount of the net operating loss purposes; as follows: with respect to the employee making the dis- (as defined in section 172(c) of the Internal In lieu of the matter proposed to be in- closure, took, failed to take, or threatened Revenue Code of 1986) for such taxable year. serted, insert the following: to take or fail to take a personnel action

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8800 CONGRESSIONAL RECORD — SENATE December 10, 2010 with respect to that employee in reprisal for tion), or any successor thereto; Executive SEC. 106. DISCIPLINARY ACTION. the disclosure.’’. Order 12968 (60 Fed. Reg. 40245; relating to ac- Section 1215(a)(3) of title 5, United States SEC. 102. DEFINITIONAL AMENDMENTS. cess to classified information), or any suc- Code, is amended to read as follows: Section 2302(a)(2) of title 5, United States cessor thereto; section 7211 of title 5, United ‘‘(3)(A) A final order of the Board may im- Code, is amended— States Code (governing disclosures to Con- pose— (1) in subparagraph (B)(ii), by striking gress); section 1034 of title 10, United States ‘‘(i) disciplinary action consisting of re- ‘‘and’’ at the end; Code (governing disclosure to Congress by moval, reduction in grade, debarment from (2) in subparagraph (C)(iii), by striking the members of the military); section 2302(b)(8) Federal employment for a period not to ex- period at the end and inserting ‘‘; and’’; and of title 5, United States Code (governing dis- ceed 5 years, suspension, or reprimand; (3) by adding at the end the following: closures of illegality, waste, fraud, abuse, or ‘‘(ii) an assessment of a civil penalty not to ‘‘(D) ‘disclosure’ means a formal or infor- public health or safety threats); the Intel- exceed $1,000; or mal communication or transmission, but ligence Identities Protection Act of 1982 (50 ‘‘(iii) any combination of disciplinary ac- does not include a communication con- U.S.C. 421 et seq.) (governing disclosures that tions described under clause (i) and an as- cerning policy decisions that lawfully exer- could expose confidential Government sessment described under clause (ii). cise discretionary authority unless the em- agents); and the statutes which protect ‘‘(B) In any case brought under paragraph ployee or applicant providing the disclosure against disclosures that could compromise (1) in which the Board finds that an em- reasonably believes that the disclosure evi- national security, including sections 641, 793, ployee has committed a prohibited personnel dences— 794, 798, and 952 of title 18, United States practice under section 2302(b)(8), or 2302(b)(9) ‘‘(i) any violation of any law, rule, or regu- Code, and section 4(b) of the Subversive Ac- (A)(i), (B), (C) , or (D), the Board may impose lation, except for an alleged violation that is tivities Control Act of 1950 (50 U.S.C. 783(b)). disciplinary action if the Board finds that a minor, inadvertent violation, and occurs The definitions, requirements, obligations, the activity protected under section during the conscientious carrying out of offi- rights, sanctions, and liabilities created by 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) cial duties; or such Executive order and such statutory pro- was a significant motivating factor, even if ‘‘(ii) gross mismanagement, a gross waste visions are incorporated into this agreement other factors also motivated the decision, for of funds, an abuse of authority, or a substan- and are controlling.’ ’’. the employee’s decision to take, fail to take, tial and specific danger to public health or (2) NONDISCLOSURE POLICY, FORM, OR AGREE- or threaten to take or fail to take a per- safety.’’. MENT IN EFFECT BEFORE THE DATE OF ENACT- sonnel action, unless that employee dem- onstrates, by preponderance of evidence, SEC. 103. REBUTTABLE PRESUMPTION. MENT.—A nondisclosure policy, form, or that the employee would have taken, failed Section 2302(b) of title 5, United States agreement that was in effect before the date to take, or threatened to take or fail to take Code, is amended by amending the matter of enactment of this Act, but that does not the same personnel action, in the absence of following paragraph (12) to read as follows: contain the statement required under sec- ‘‘This subsection shall not be construed to tion 2302(b)(13) of title 5, United States Code, such protected activity.’’. authorize the withholding of information (as added by this Act) for implementation or SEC. 107. REMEDIES. from Congress or the taking of any personnel enforcement— (a) ATTORNEY FEES.—Section 1204(m)(1) of action against an employee who discloses in- (A) may be enforced with regard to a cur- title 5, United States Code, is amended by formation to Congress. For purposes of para- rent employee if the agency gives such em- striking ‘‘agency involved’’ and inserting graph (8), any presumption relating to the ployee notice of the statement; and ‘‘agency where the prevailing party was em- ployed or had applied for employment at the performance of a duty by an employee whose (B) may continue to be enforced after the time of the events giving rise to the case’’. conduct is the subject of a disclosure as de- effective date of this Act with regard to a (b) DAMAGES.—Sections 1214(g)(2) and fined under subsection (a)(2)(D) may be re- former employee if the agency posts notice of the statement on the agency website for 1221(g)(1)(A)(ii) of title 5, United States Code, butted by substantial evidence. For purposes are amended by striking all after ‘‘travel ex- of paragraph (8), a determination as to the 1-year period following that effective date. penses,’’ and inserting ‘‘any other reasonable whether an employee or applicant reason- and foreseeable consequential damages, and ably believes that such employee or appli- (c) RETALIATORY INVESTIGATIONS.— compensatory damages (including interest, cant has disclosed information that evi- (1) AGENCY INVESTIGATION.—Section 1214 of reasonable expert witness fees, and costs).’’ dences any violation of law, rule, regulation, title 5, United States Code, is amended by each place it appears. gross mismanagement, a gross waste of adding at the end the following: SEC. 108. JUDICIAL REVIEW. funds, an abuse of authority, or a substantial ‘‘(h) Any corrective action ordered under (a) IN GENERAL.—Section 7703(b) of title 5, and specific danger to public health or safety this section to correct a prohibited personnel United States Code, is amended by striking shall be made by determining whether a dis- practice may include fees, costs, or damages the matter preceding paragraph (2) and in- interested observer with knowledge of the es- reasonably incurred due to an agency inves- serting the following: sential facts known to and readily ascertain- tigation of the employee, if such investiga- ‘‘(b)(1)(A) Except as provided in subpara- able by the employee could reasonably con- tion was commenced, expanded, or extended graph (B) and paragraph (2) of this sub- clude that the actions of the Government in retaliation for the disclosure or protected section, a petition to review a final order or evidence such violations, mismanagement, activity that formed the basis of the correc- final decision of the Board shall be filed in waste, abuse, or danger.’’. tive action.’’. the United States Court of Appeals for the SEC. 104. PERSONNEL ACTIONS AND PROHIBITED (2) DAMAGES.—Section 1221(g) of title 5, Federal Circuit. Notwithstanding any other PERSONNEL PRACTICES. United States Code, is amended by adding at provision of law, any petition for review (a) PERSONNEL ACTION.—Section the end the following: shall be filed within 60 days after the Board 2302(a)(2)(A) of title 5, United States Code, is ‘‘(4) Any corrective action ordered under issues notice of the final order or decision of amended— this section to correct a prohibited personnel the Board. ‘‘(B) During the 5-year period beginning on (1) in clause (x), by striking ‘‘and’’ after practice may include fees, costs, or damages the semicolon; and the effective date of the Whistleblower Pro- reasonably incurred due to an agency inves- tection Enhancement Act of 2010, a petition (2) by redesignating clause (xi) as clause tigation of the employee, if such investiga- (xii) and inserting after clause (x) the fol- to review a final order or final decision of tion was commenced, expanded, or extended the Board that raises no challenge to the lowing: in retaliation for the disclosure or protected ‘‘(xi) the implementation or enforcement Board’s disposition of allegations of a pro- activity that formed the basis of the correc- hibited personnel practice described in sec- of any nondisclosure policy, form, or agree- tive action.’’. ment; and’’. tion 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), (b) PROHIBITED PERSONNEL PRACTICE.— SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT. or (D) shall be filed in the United States (1) IN GENERAL.—Section 2302(b) of title 5, Court of Appeals for the Federal Circuit or United States Code, is amended— Section 2302(a)(2)(C) of title 5, United any court of appeals of competent jurisdic- (A) in paragraph (11), by striking ‘‘or’’ at States Code, is amended by striking clause tion as provided under paragraph (2).’’. the end; (ii) and inserting the following: (b) REVIEW OBTAINED BY OFFICE OF PER- (B) in paragraph (12), by striking the pe- ‘‘(ii)(I) the Federal Bureau of Investiga- SONNEL MANAGEMENT.—Section 7703(d) of riod and inserting ‘‘; or’’; and tion, the Central Intelligence Agency, the title 5, United States Code, is amended to (C) by inserting after paragraph (12) the Defense Intelligence Agency, the National read as follows: following: Geospatial-Intelligence Agency, the National ‘‘(d)(1) Except as provided under paragraph ‘‘(13) implement or enforce any nondisclo- Security Agency, the Office of the Director (2), this paragraph shall apply to any review sure policy, form, or agreement, if such pol- of National Intelligence, and the National obtained by the Director of the Office of Per- icy, form, or agreement does not contain the Reconnaissance Office; and sonnel Management. The Director of the Of- following statement: ‘These provisions are ‘‘(II) as determined by the President, any fice of Personnel Management may obtain consistent with and do not supersede, con- executive agency or unit thereof the prin- review of any final order or decision of the flict with, or otherwise alter the employee cipal function of which is the conduct of for- Board by filing, within 60 days after the obligations, rights, or liabilities created by eign intelligence or counterintelligence ac- Board issues notice of the final order or deci- Executive Order 13526 (75 Fed. Reg. 707; relat- tivities, provided that the determination be sion of the Board, a petition for judicial re- ing to classified national security informa- made prior to a personnel action; or’’. view in the United States Court of Appeals

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00072 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8801 for the Federal Circuit if the Director deter- rights, apart from those described in sub- (ii) the disclosure is made to the Special mines, in the discretion of the Director, that section (a), to which an individual described Counsel, or to the Inspector General of an the Board erred in interpreting a civil serv- in subsection (a) might otherwise be entitled agency or another person designated by the ice law, rule, or regulation affecting per- under law.’’. head of the agency to receive such disclo- sonnel management and that the Board’s de- (b) TECHNICAL AND CONFORMING AMEND- sures, consistent with the protection of cision will have a substantial impact on a MENT.—The table of sections for chapter 23 of sources and methods. civil service law, rule, regulation, or policy title 5, United States Code, is amended by (2) DISCLOSURES NOT EXCLUDED.—A disclo- directive. If the Director did not intervene in striking the items relating to sections 2304 sure shall not be excluded from paragraph (1) a matter before the Board, the Director may and 2305, respectively, and by inserting the for any reason described under section not petition for review of a Board decision following: 2302(f)(1) or (2) of title 5, United States Code. under this section unless the Director first ‘‘2304. Prohibited personnel practices affect- (3) RULE OF CONSTRUCTION.—Nothing in this petitions the Board for a reconsideration of ing the Transportation Secu- section shall be construed to imply any limi- its decision, and such petition is denied. In rity Administration. tation on the protections of employees and addition to the named respondent, the Board ‘‘2305. Responsibility of the Government Ac- applicants afforded by any other provision of and all other parties to the proceedings be- countability Office. law, including protections with respect to fore the Board shall have the right to appear ‘‘2306. Coordination with certain other provi- any disclosure of information believed to be in the proceeding before the Court of Ap- sions of law.’’. evidence of censorship related to research, peals. The granting of the petition for judi- (c) EFFECTIVE DATE.—The amendments analysis, or technical information. cial review shall be at the discretion of the made by this section shall take effect on the SEC. 111. CLARIFICATION OF WHISTLEBLOWER Court of Appeals. date of enactment of this section. RIGHTS FOR CRITICAL INFRASTRUC- ‘‘(2) During the 5-year period beginning on TURE INFORMATION. the effective date of the Whistleblower Pro- SEC. 110. DISCLOSURE OF CENSORSHIP RELATED Section 214(c) of the Homeland Security tection Enhancement Act of 2010, this para- TO RESEARCH, ANALYSIS, OR TECH- Act of 2002 (6 U.S.C. 133(c)) is amended by NICAL INFORMATION. graph shall apply to any review obtained by adding at the end the following: ‘‘For pur- (a) DEFINITIONS.—In this subsection— the Director of the Office of Personnel Man- poses of this section a permissible use of (1) the term ‘‘agency’’ has the meaning agement that raises no challenge to the independently obtained information includes given under section 2302(a)(2)(C) of title 5, Board’s disposition of allegations of a pro- the disclosure of such information under sec- United States Code; hibited personnel practice described in sec- tion 2302(b)(8) of title 5, United States (2) the term ‘‘applicant’’ means an appli- tion 2302(b) other than practices described in Code.’’. cant for a covered position; section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), SEC. 112. ADVISING EMPLOYEES OF RIGHTS. (3) the term ‘‘censorship related to re- or (D). The Director of the Office of Per- Section 2302(c) of title 5, United States search, analysis, or technical information’’ sonnel Management may obtain review of Code, is amended by inserting ‘‘, including means any effort to distort, misrepresent, or any final order or decision of the Board by how to make a lawful disclosure of informa- suppress research, analysis, or technical in- filing, within 60 days after the Board issues tion that is specifically required by law or notice of the final order or decision of the formation; Executive order to be kept classified in the Board, a petition for judicial review in the (4) the term ‘‘covered position’’ has the interest of national defense or the conduct of United States Court of Appeals for the Fed- meaning given under section 2302(a)(2)(B) of foreign affairs to the Special Counsel, the In- eral Circuit or any court of appeals of com- title 5, United States Code; spector General of an agency, Congress, or petent jurisdiction as provided under sub- (5) the term ‘‘employee’’ means an em- other agency employee designated to receive section (b)(2) if the Director determines, in ployee in a covered position in an agency; such disclosures’’ after ‘‘chapter 12 of this the discretion of the Director, that the and title’’. (6) the term ‘‘disclosure’’ has the meaning Board erred in interpreting a civil service SEC. 113. SPECIAL COUNSEL AMICUS CURIAE AP- law, rule, or regulation affecting personnel given under section 2302(a)(2)(D) of title 5, PEARANCE. management and that the Board’s decision United States Code. Section 1212 of title 5, United States Code, will have a substantial impact on a civil (b) PROTECTED DISCLOSURE.— is amended by adding at the end the fol- service law, rule, regulation, or policy direc- (1) IN GENERAL.—Any disclosure of informa- lowing: tive. If the Director did not intervene in a tion by an employee or applicant for employ- ‘‘(h)(1) The Special Counsel is authorized matter before the Board, the Director may ment that the employee or applicant reason- to appear as amicus curiae in any action not petition for review of a Board decision ably believes is evidence of censorship re- brought in a court of the United States re- under this section unless the Director first lated to research, analysis, or technical in- lated to any civil action brought in connec- petitions the Board for a reconsideration of formation— tion with section 2302(b) (8) or (9), or as oth- its decision, and such petition is denied. In (A) shall come within the protections of erwise authorized by law. In any such action, addition to the named respondent, the Board section 2302(b)(8)(A) of title 5, United States the Special Counsel is authorized to present and all other parties to the proceedings be- Code, if— the views of the Special Counsel with respect fore the Board shall have the right to appear (i) the employee or applicant reasonably to compliance with section 2302(b) (8) or (9) in the proceeding before the court of appeals. believes that the censorship related to re- and the impact court decisions would have The granting of the petition for judicial re- search, analysis, or technical information is on the enforcement of such provisions of law. view shall be at the discretion of the court of or will cause— ‘‘(2) A court of the United States shall appeals.’’. (I) any violation of law, rule, or regulation, grant the application of the Special Counsel SEC. 109. PROHIBITED PERSONNEL PRACTICES except for an alleged violation that is a to appear in any such action for the purposes AFFECTING THE TRANSPORTATION minor, inadvertent violation, and occurs dur- described under subsection (a).’’. SECURITY ADMINISTRATION. ing the conscientious carrying out of official SEC. 114. SCOPE OF DUE PROCESS. (a) IN GENERAL.—Chapter 23 of title 5, duties; or (a) SPECIAL COUNSEL.—Section United States Code, is amended— (II) gross mismanagement, a gross waste of 1214(b)(4)(B)(ii) of title 5, United States Code, (1) by redesignating sections 2304 and 2305 funds, an abuse of authority, or a substantial is amended by inserting ‘‘, after a finding as sections 2305 and 2306, respectively; and and specific danger to public health or safe- that a protected disclosure was a contrib- (2) by inserting after section 2303 the fol- ty; and uting factor,’’ after ‘‘ordered if’’. lowing: (ii) such disclosure is not specifically pro- (b) INDIVIDUAL ACTION.—Section 1221(e)(2) ‘‘§ 2304. Prohibited personnel practices affect- hibited by law or such information is not of title 5, United States Code, is amended by ing the Transportation Security Adminis- specifically required by Executive order to inserting ‘‘, after a finding that a protected tration be kept classified in the interest of national disclosure was a contributing factor,’’ after ‘‘(a) IN GENERAL.—Notwithstanding any defense or the conduct of foreign affairs; and ‘‘ordered if’’. other provision of law, any individual hold- (B) shall come within the protections of SEC. 115. NONDISCLOSURE POLICIES, FORMS, ing or applying for a position within the section 2302(b)(8)(B) of title 5, United States AND AGREEMENTS. Transportation Security Administration Code, if— (a) IN GENERAL.— shall be covered by— (i) the employee or applicant reasonably (1) REQUIREMENT.—Each agreement in ‘‘(1) the provisions of section 2302(b) (1), (8), believes that the censorship related to re- Standard Forms 312 and 4414 of the Govern- and (9); search, analysis, or technical information is ment and any other nondisclosure policy, ‘‘(2) any provision of law implementing or will cause— form, or agreement of the Government shall section 2302(b) (1), (8), or (9) by providing any (I) any violation of law, rule, or regulation, contain the following statement: ‘‘These re- right or remedy available to an employee or except for an alleged violation that is a strictions are consistent with and do not su- applicant for employment in the civil serv- minor, inadvertent violation, and occurs dur- persede, conflict with, or otherwise alter the ice; and ing the conscientious carrying out of official employee obligations, rights, or liabilities ‘‘(3) any rule or regulation prescribed duties; or created by Executive Order 13526 (75 Fed. under any provision of law referred to in (II) gross mismanagement, a gross waste of Reg. 707; relating to classified national secu- paragraph (1) or (2). funds, an abuse of authority, or a substantial rity information), or any successor thereto; ‘‘(b) RULE OF CONSTRUCTION.—Nothing in and specific danger to public health or safe- Executive Order 12968 (60 Fed. Reg. 40245; re- this section shall be construed to affect any ty; and lating to access to classified information), or

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00073 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8802 CONGRESSIONAL RECORD — SENATE December 10, 2010 any successor thereto; section 7211 of title 5, or not the United States Merit Systems Pro- appeal has been duly submitted, unless the United States Code (governing disclosures to tection Board, the Federal Circuit Court of Board determines that the employee, former Congress); section 1034 of title 10, United Appeals, or any other court determined the employee, or applicant for employment en- States Code (governing disclosure to Con- allegations to be frivolous or malicious; gaged in conduct intended to delay the gress by members of the military); section (C) an analysis of the outcome of cases de- issuance of a final order or decision by the 2302(b)(8) of title 5, United States Code (gov- scribed under subparagraph (A) that were de- Board; and erning disclosures of illegality, waste, fraud, cided by a United States District Court and ‘‘(C) such employee, former employee, or abuse, or public health or safety threats); the impact the process has on the Merit Sys- applicant provides written notice to the the Intelligence Identities Protection Act of tems Protection Board and the Federal court Board of filing an action under this sub- 1982 (50 U.S.C. 421 et seq.) (governing disclo- system; and section before the filing of that action. sures that could expose confidential Govern- (D) any other matter as determined by the ‘‘(4) This paragraph applies in any case in ment agents); and the statutes which protect Comptroller General. which— against disclosure that may compromise the (b) MERIT SYSTEMS PROTECTION BOARD.— ‘‘(A) an employee, former employee, or ap- national security, including sections 641, 793, (1) IN GENERAL.—Each report submitted an- plicant for employment — 794, 798, and 952 of title 18, United States nually by the Merit Systems Protection ‘‘(i) seeks corrective action from the Merit Code, and section 4(b) of the Subversive Ac- Board under section 1116 of title 31, United Systems Protection Board under section tivities Act of 1950 (50 U.S.C. 783(b)). The States Code, shall, with respect to the period 1221(a) based on an alleged prohibited per- definitions, requirements, obligations, covered by such report, include as an adden- sonnel practice described in section 2302(b) rights, sanctions, and liabilities created by dum the following: (8) or (9) (A)(i), (B), (C), or (D) for which the such Executive order and such statutory pro- (A) Information relating to the outcome of associated personnel action is an action cov- visions are incorporated into this agreement cases decided during the applicable year of ered under section 7512 or 7542; or and are controlling.’’. the report in which violations of section ‘‘(ii) files an appeal under section 7701(a)(1) (2) ENFORCEABILITY.— 2302(b) (8) or (9) (A)(i), (B)(i), (C), or (D) of alleging as an affirmative defense the com- (A) IN GENERAL.—Any nondisclosure policy, title 5, United States Code, were alleged. mission of a prohibited personnel practice form, or agreement described under para- (B) The number of such cases filed in the described in section 2302(b) (8) or (9) (A)(i), graph (1) that does not contain the state- regional and field offices, the number of peti- (B), (C), or (D) for which the associated per- ment required under paragraph (1) may not tions for review filed in such cases, and the sonnel action is an action covered under sec- be implemented or enforced to the extent outcomes of such cases. tion 7512 or 7542; such policy, form, or agreement is incon- (2) FIRST REPORT.—The first report de- ‘‘(B)(i) within 30 days after the date on sistent with that statement. scribed under paragraph (1) submitted after which the request for corrective action or (B) NONDISCLOSURE POLICY, FORM, OR the date of enactment of this Act shall in- appeal was duly submitted, such employee, AGREEMENT IN EFFECT BEFORE THE DATE OF clude an addendum required under that sub- former employee, or applicant for employ- ENACTMENT.—A nondisclosure policy, form, paragraph that covers the period beginning ment files a motion requesting a certifi- or agreement that was in effect before the on January 1, 2009 through the end of the fis- cation consistent with subparagraph (C) to date of enactment of this Act, but that does cal year 2009. the Board, any administrative law judge ap- pointed by the Board under section 3105 of not contain the statement required under SEC. 117. ALTERNATIVE REVIEW. paragraph (1)— this title and assigned to the case, or any (a) IN GENERAL.—Section 1221 of title 5, employee of the Board designated by the (i) may be enforced with regard to a cur- United States Code, is amended by adding at rent employee if the agency gives such em- Board and assigned to the case; and the end the following: ‘‘(ii) such employee has not previously ployee notice of the statement; and ‘‘(k)(1) In this subsection, the term ‘appro- (ii) may continue to be enforced after the filed a motion under clause (i) related to priate United States district court’, as used that request for corrective action; and effective date of this Act with regard to a with respect to an alleged prohibited per- former employee if the agency posts notice ‘‘(C) the Board, any administrative law sonnel practice, means the United States dis- judge appointed by the Board under section of the statement on the agency website for trict court for the judicial district in the 1-year period following that effective 3105 of this title and assigned to the case, or which— any employee of the Board designated by the date. ‘‘(A) the prohibited personnel practice is (b) PERSONS OTHER THAN GOVERNMENT EM- Board and assigned to the case certifies alleged to have been committed; or PLOYEES.—Notwithstanding subsection (a), a that— nondisclosure policy, form, or agreement ‘‘(B) the employee, former employee, or ap- (i) under the standard applicable to the re- that is to be executed by a person connected plicant for employment allegedly affected by view of motions to dismiss under rule 12(b)(6) with the conduct of an intelligence or intel- such practice resides. of the Federal Rules of Civil Procedure, in- ligence-related activity, other than an em- ‘‘(2)(A) An employee, former employee, or cluding rule 12(d), the request for corrective ployee or officer of the United States Gov- applicant for employment in any case to action (including any allegation made with ernment, may contain provisions appropriate which paragraph (3) or (4) applies may file an the motion under subparagraph (B)) would to the particular activity for which such doc- action at law or equity for de novo review in not be subject to dismissal; and ument is to be used. Such policy, form, or the appropriate United States district court ‘‘(ii)(I) the Board is not likely to dispose of agreement shall, at a minimum, require that in accordance with this subsection. the case within 270 days after the date on the person will not disclose any classified in- ‘‘(B) Upon initiation of any action under which a request for that corrective action formation received in the course of such ac- subparagraph (A), the Board shall stay any has been duly submitted; or tivity unless specifically authorized to do so other claims of such employee, former em- ‘‘(II) the case— by the United States Government. Such non- ployee, or applicant pending before the ‘‘(aa) consists of multiple claims; disclosure policy, form, or agreement shall Board at that time which arise out of the ‘‘(bb) requires complex or extensive dis- also make it clear that such forms do not bar same set of operative facts. Such claims covery; disclosures to Congress or to an authorized shall be stayed pending completion of the ac- ‘‘(cc) arises out of the same set of opera- official of an executive agency or the Depart- tion filed under subparagraph (A) before the tive facts as any civil action against the ment of Justice that are essential to report- appropriate United States district court and Government filed by the employee, former ing a substantial violation of law, consistent any associated appellate review. employee, or applicant pending in a Federal with the protection of sources and methods. ‘‘(3) This paragraph applies in any case in court; or SEC. 116. REPORTING REQUIREMENTS. which— ‘‘(dd) involves a novel question of law. (a) GOVERNMENT ACCOUNTABILITY OFFICE.— ‘‘(A) an employee, former employee, or ap- ‘‘(5) The Board shall grant or deny any mo- (1) REPORT.—Not later than 40 months plicant for employment— tion requesting a certification described after the date of enactment of this Act, the ‘‘(i) seeks corrective action from the Merit under paragraph (4)(ii) within 90 days after Comptroller General shall submit a report to Systems Protection Board under section the submission of such motion and the Board the Committee on Homeland Security and 1221(a) based on an alleged prohibited per- may not issue a decision on the merits of a Governmental Affairs of the Senate and the sonnel practice described in section 2302(b) request for corrective action within 15 days Committee on Oversight and Government (8) or (9) (A)(i), (B), (C), or (D) for which the after granting or denying a motion request- Reform of the House of Representatives on associated personnel action is an action cov- ing certification. the implementation of this title. ered under section 7512 or 7542; or ‘‘(6)(A) Any decision of the Board, any ad- (2) CONTENTS.—The report under this para- ‘‘(ii) files an appeal under section 7701(a) ministrative law judge appointed by the graph shall include— alleging as an affirmative defense the com- Board under section 3105 of this title and as- (A) an analysis of any changes in the num- mission of a prohibited personnel practice signed to the case, or any employee of the ber of cases filed with the United States described in section 2302(b) (8) or (9) (A)(i), Board designated by the Board and assigned Merit Systems Protection Board alleging (B), (C), or (D) for which the associated per- to the case to grant or deny a certification violations of section 2302(b) (8) or (9) of title sonnel action is an action covered under sec- described under paragraph (4)(ii) shall be re- 5, United States Code, since the effective tion 7512 or 7542; viewed on appeal of a final order or decision date of this Act; ‘‘(B) no final order or decision is issued by of the Board under section 7703 only if— (B) the outcome of the cases described the Board within 270 days after the date on ‘‘(i) a motion requesting a certification under subparagraph (A), including whether which a request for that corrective action or was denied; and

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00074 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8803 ‘‘(ii) the reviewing court vacates the deci- any party, grant a motion for summary judg- ‘‘(B) appoint an Assistant Inspector Gen- sion of the Board on the merits of the claim ment when the Board or the administrative eral for Investigations who shall have the re- under the standards set forth in section law judge determines that there is no gen- sponsibility for supervising the performance 7703(c). uine issue as to any material fact and that of investigative activities relating to such ‘‘(B) The decision to deny the certification the moving party is entitled to a judgment programs and operations; and shall be overturned by the reviewing court, as a matter of law.’’. ‘‘(C) designate a Whistleblower Protection and an order granting certification shall be (b) SUNSET.— Ombudsman who shall educate agency em- issued by the reviewing court, if such deci- (1) IN GENERAL.—Except as provided under ployees— sion is found to be arbitrary, capricious, or paragraph (2), the amendments made by this ‘‘(i) about prohibitions on retaliation for an abuse of discretion. section shall cease to have effect 5 years protected disclosures; and ‘‘(C) The reviewing court’s decision shall after the effective date of this Act. ‘‘(ii) who have made or are contemplating not be considered evidence of any determina- (2) PENDING CLAIMS.—The amendments making a protected disclosure about the tion by the Board, any administrative law made by this section shall continue to apply rights and remedies against retaliation for judge appointed by the Board under section with respect to any claim pending before the protected disclosures. 3105 of this title, or any employee of the Board on the last day of the 5-year period de- ‘‘(2) The Whistleblower Protection Om- Board designated by the Board on the merits scribed under paragraph (1). budsman shall not act as a legal representa- of the underlying allegations during the tive, agent, or advocate of the employee or SEC. 119. DISCLOSURES OF CLASSIFIED INFOR- course of any action at law or equity for de MATION. former employee. novo review in the appropriate United States ‘‘(3) For the purposes of this section, the (a) PROHIBITED PERSONNEL PRACTICES.— district court in accordance with this sub- requirement of the designation of a Whistle- Section 2302(b)(8) of title 5, United States blower Protection Ombudsman under para- section. Code, is amended— ‘‘(7) In any action filed under this sub- graph (1)(C) shall not apply to— (1) in subparagraph (A), by striking ‘‘or’’ section— ‘‘(A) any agency that is an element of the after the semicolon; ‘‘(A) the district court shall have jurisdic- intelligence community (as defined in sec- (2) in subparagraph (B), by adding ‘‘or’’ tion without regard to the amount in con- tion 3(4) of the National Security Act of 1947 after the semicolon; and troversy; (50 U.S.C. 401a(4))); or (3) by adding at the end the following: ‘‘(B) at the request of either party, such ‘‘(B) as determined by the President, any ‘‘(C) any communication that complies action shall be tried by the court with a executive agency or unit thereof the prin- with subsection (a)(1), (d), or (h) of section jury; cipal function of which is the conduct of for- 8H of the Inspector General Act of 1978 (5 ‘‘(C) the court— eign intelligence or counter intelligence ac- U.S.C. App);’’. ‘‘(i) subject to clause (iii), shall apply the tivities.’’. (b) INSPECTOR GENERAL ACT OF 1978.—Sec- standards set forth in subsection (e); and (b) TECHNICAL AND CONFORMING AMEND- tion 8H of the Inspector General Act of 1978 ‘‘(ii) may award any relief which the court MENT.—Section 8D(j) of the Inspector Gen- (5 U.S.C. App) is amended— considers appropriate under subsection (g), eral Act of 1978 (5 U.S.C. App.) is amended— (1) in subsection (a)(1), by adding at the except— (1) by striking ‘‘section 3(d)(1)’’ and insert- end the following: ‘‘(I) relief for compensatory damages may ing ‘‘section 3(d)(1)(A)’’; and ‘‘(D) An employee of any agency, as that (2) by striking ‘‘section 3(d)(2)’’ and insert- not exceed $300,000; and term is defined under section 2302(a)(2)(C) of ing ‘‘section 3(d)(1)(B)’’. ‘‘(II) relief may not include punitive dam- title 5, United States Code, who intends to (c) SUNSET.— ages; and report to Congress a complaint or informa- (1) IN GENERAL.—The amendments made by ‘‘(iii) notwithstanding subsection (e)(2), tion with respect to an urgent concern may this section shall cease to have effect on the may not order relief if the agency dem- report the complaint or information to the date that is 5 years after the date of enact- onstrates by a preponderance of the evidence Inspector General (or designee) of the agency ment of this Act. that the agency would have taken the same of which that employee is employed.’’; (2) RETURN TO PRIOR AUTHORITY.—Upon the personnel action in the absence of such dis- (2) in subsection (c), by striking ‘‘intel- date described in paragraph (1), section 3(d) closure; and ligence committees’’ and inserting ‘‘appro- and section 8D(j) of the Inspector General ‘‘(D) the Special Counsel may not rep- priate committees’’; Act of 1978 (5 U.S.C. App.) shall read as such resent the employee, former employee, or ap- (3) in subsection (d)— sections read on the day before the date of plicant for employment. enactment of this Act. ‘‘(8) An appeal from a final decision of a (A) in paragraph (1), by striking ‘‘either or district court in an action under this sub- both of the intelligence committees’’ and in- TITLE II—INTELLIGENCE COMMUNITY section shall be taken to the Court of Ap- serting ‘‘any of the appropriate commit- WHISTLEBLOWER PROTECTIONS peals for the Federal Circuit or any court of tees’’; and SEC. 201. PROTECTION OF INTELLIGENCE COM- appeals of competent jurisdiction. (B) in paragraphs (2) and (3), by striking MUNITY WHISTLEBLOWERS. ‘‘(9) This subsection applies with respect to ‘‘intelligence committees’’ each place that (a) IN GENERAL.—Chapter 23 of title 5, any appeal, petition, or other request for term appears and inserting ‘‘appropriate United States Code, is amended by inserting corrective action duly submitted to the committees’’; after section 2303 the following: Board, whether under section 1214(b)(2), the (4) in subsection (h)— ‘‘§ 2303A. Prohibited personnel practices in preceding provisions of this section, section (A) in paragraph (1)— the intelligence community 7513(d), section 7701, or any otherwise appli- (i) in subparagraph (A), by striking ‘‘intel- ‘‘(a) DEFINITIONS.—In this section— cable provisions of law, rule, or regulation.’’. ligence’’; and ‘‘(1) the term ‘agency’ means an executive (b) SUNSET.— (ii) in subparagraph (B), by inserting ‘‘or department or independent establishment, as (1) IN GENERAL.—Except as provided under an activity involving classified information’’ defined under sections 101 and 104, that con- paragraph (2), the amendments made by this after ‘‘an intelligence activity’’; and tains an intelligence community element, section shall cease to have effect 5 years (B) by striking paragraph (2), and inserting except the Federal Bureau of Investigation; after the effective date of this Act. the following: ‘‘(2) the term ‘intelligence community ele- (2) PENDING CLAIMS.—The amendments ‘‘(2) The term ‘appropriate committees’ ment’— made by this section shall continue to apply means the Permanent Select Committee on ‘‘(A) means— with respect to any claim pending before the Intelligence of the House of Representatives ‘‘(i) the Central Intelligence Agency, the Board on the last day of the 5-year period de- and the Select Committee on Intelligence of Defense Intelligence Agency, the National scribed under paragraph (1). the Senate, except that with respect to dis- Geospatial-Intelligence Agency, the National SEC. 118. MERIT SYSTEMS PROTECTION BOARD closures made by employees described in Security Agency, the Office of the Director SUMMARY JUDGMENT. subsection (a)(1)(D), the term ‘appropriate of National Intelligence, and the National (a) IN GENERAL.—Section 1204(b) of title 5, committees’ means the committees of appro- Reconnaissance Office; and United States Code, is amended— priate jurisdiction.’’. ‘‘(ii) any executive agency or unit thereof (1) by redesignating paragraph (3) as para- SEC. 120. WHISTLEBLOWER PROTECTION OM- determined by the President under section graph (4); BUDSMAN. 2302(a)(2)(C)(ii) of title 5, United States Code, (2) by inserting after paragraph (2) the fol- (a) IN GENERAL.—Section 3 of the Inspector to have as its principal function the conduct lowing: General Act of 1978 (5 U.S.C. App.) is amend- of foreign intelligence or counterintelligence ‘‘(3) With respect to a request for correc- ed by striking subsection (d) and inserting activities; and tive action based on an alleged prohibited the following: ‘‘(B) does not include the Federal Bureau personnel practice described in section ‘‘(d)(1) Each Inspector General shall, in ac- of Investigation; and 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for cordance with applicable laws and regula- ‘‘(3) the term ‘personnel action’ means any which the associated personnel action is an tions governing the civil service— action described in clauses (i) through (x) of action covered under section 7512 or 7542, the ‘‘(A) appoint an Assistant Inspector Gen- section 2302(a)(2)(A) with respect to an em- Board, any administrative law judge ap- eral for Auditing who shall have the respon- ployee in a position in an intelligence com- pointed by the Board under section 3105 of sibility for supervising the performance of munity element (other than a position of a this title, or any employee of the Board des- auditing activities relating to programs and confidential, policy-determining, policy- ignated by the Board may, with respect to operations of the establishment; making, or policy-advocating character).

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‘‘(b) IN GENERAL.—Any employee of an sion is needed before a final decision on de- ‘‘(ii) gross mismanagement, a gross waste agency who has authority to take, direct nial or revocation to prevent imminent harm of funds, an abuse of authority, or a substan- others to take, recommend, or approve any to the national security. tial and specific danger to public health or personnel action, shall not, with respect to ‘‘Any limitation period applicable to an safety; such authority, take or fail to take a per- agency appeal under paragraph (7) shall be ‘‘(B) any disclosure to the Inspector Gen- sonnel action with respect to any employee tolled until the head of the agency (or in the eral of an agency or another employee des- of an intelligence community element as a case of any component of the Department of ignated by the head of the agency to receive reprisal for a disclosure of information by Defense, the Secretary of Defense) deter- such disclosures, of information which the the employee to the Director of National In- mines, with the concurrence of the Director employee reasonably believes evidences— telligence (or an employee designated by the of National Intelligence, that the policies ‘‘(i) a violation of any law, rule, or regula- Director of National Intelligence for such and procedures described in paragraph (7) tion, except for an alleged violation that is a purpose), or to the head of the employing have been established for the agency or the minor, inadvertent violation, and occurs dur- agency (or an employee designated by the Director of National Intelligence promul- ing the conscientious carrying out of official head of that agency for such purpose), which gates the policies and procedures under para- duties; or the employee reasonably believes evi- graph (7). The policies and procedures for ap- ‘‘(ii) gross mismanagement, a gross waste dences— peals developed under paragraph (7) shall be of funds, an abuse of authority, or a substan- ‘‘(1) a violation of any law, rule, or regula- comparable to the policies and procedures tial and specific danger to public health or tion, except for an alleged violation that— pertaining to prohibited personnel practices safety; ‘‘(A) is a minor, inadvertent violation; and defined under section 2302(b)(8) of title 5, ‘‘(C) any communication that complies ‘‘(B) occurs during the conscientious car- United States Code, and provide— with— rying out of official duties; or ‘‘(A) for an independent and impartial fact- ‘‘(i) subsection (a)(1), (d), or (h) of section ‘‘(2) mismanagement, a gross waste of finder; 8H of the Inspector General Act of 1978 (5 funds, an abuse of authority, or a substantial ‘‘(B) for notice and the opportunity to be U.S.C. App.); and specific danger to public health or safe- heard, including the opportunity to present ‘‘(ii) subsection (d)(5)(A), (D), or (G) of sec- ty. relevant evidence, including witness testi- tion 17 of the Central Intelligence Agency ‘‘(c) ENFORCEMENT.—The President shall mony; Act of 1949 (50 U.S.C. 403q); or provide for the enforcement of this section in ‘‘(C) that the employee or former employee ‘‘(iii) subsection (k)(5)(A), (D), or (G), of a manner consistent with applicable provi- may be represented by counsel; section 103H of the National Security Act of sions of sections 1214 and 1221. ‘‘(D) that the employee or former employee 1947 (50 U.S.C. 403-3h); ‘‘(d) EXISTING RIGHTS PRESERVED.—Noth- has a right to a decision based on the record ‘‘(D) the exercise of any appeal, complaint, ing in this section shall be construed to— developed during the appeal; or grievance right granted by any law, rule, ‘‘(1) preempt or preclude any employee, or ‘‘(E) that not more than 180 days shall pass or regulation; applicant for employment, at the Federal from the filing of the appeal to the report of ‘‘(E) testifying for or otherwise lawfully Bureau of Investigation from exercising the impartial fact-finder to the agency head assisting any individual in the exercise of rights currently provided under any other or the designee of the agency head, unless— any right referred to in subparagraph (D); or law, rule, or regulation, including section ‘‘(i) the employee and the agency con- ‘‘(F) cooperating with or disclosing infor- 2303; cerned agree to an extension; or mation to the Inspector General of an agen- ‘‘(2) repeal section 2303; or ‘‘(ii) the impartial fact-finder determines cy, in accordance with applicable provisions ‘‘(3) provide the President or Director of in writing that a greater period of time is re- of law in connection with an audit, inspec- National Intelligence the authority to revise quired in the interest of fairness or national tion, or investigation conducted by the In- regulations related to section 2303, codified security; spector General, in part 27 of the Code of Federal Regula- ‘‘(F) for the use of information specifically if the actions described under subparagraphs tions.’’. required by Executive order to be kept clas- (D) through (F) do not result in the employee (b) TECHNICAL AND CONFORMING AMEND- sified in the interest of national defense or or applicant unlawfully disclosing informa- MENT.—The table of sections for chapter 23 of the conduct of foreign affairs in a manner tion specifically required by Executive order title 5, United States Code, is amended by in- consistent with the interests of national se- to be kept classified in the interest of na- serting after the item relating to section 2303 curity, including ex parte submissions if the tional defense or the conduct of foreign af- the following: agency determines that the interests of na- fairs. ‘‘2303A. Prohibited personnel practices in the tional security so warrant; and ‘‘(2) RULE OF CONSTRUCTION.—Consistent intelligence community.’’. ‘‘(G) that the employee or former employee with the protection of sources and methods, SEC. 202. REVIEW OF SECURITY CLEARANCE OR shall have no right to compel the production nothing in paragraph (1) shall be construed ACCESS DETERMINATIONS. of information specifically required by Exec- to authorize the withholding of information (a) IN GENERAL.—Section 3001(b) of the In- utive order to be kept classified in the inter- from the Congress or the taking of any per- telligence Reform and Terrorism Prevention est of national defense or the conduct of for- sonnel action against an employee who dis- Act of 2004 (50 U.S.C. 435b(b)) is amended— eign affairs, except evidence necessary to es- closes information to the Congress (1) in the matter preceding paragraph (1), tablish that the employee made the disclo- ‘‘(3) DISCLOSURES.— by striking ‘‘Not’’ and inserting ‘‘Except as sure or communication such employee al- ‘‘(A) IN GENERAL.—A disclosure shall not be otherwise provided, not’’; leges was protected by subparagraphs (A), excluded from paragraph (1) because— (2) in paragraph (5), by striking ‘‘and’’ (B), and (C) of subsection (j)(1).’’. ‘‘(i) the disclosure was made to a person, after the semicolon; (b) RETALIATORY REVOCATION OF SECURITY including a supervisor, who participated in (3) in paragraph (6), by striking the period CLEARANCES AND ACCESS DETERMINATIONS.— an activity that the employee reasonably be- at the end and inserting ‘‘; and’’; and Section 3001 of the Intelligence Reform and lieved to be covered by paragraph (1)(A)(ii); (4) by inserting after paragraph (6) the fol- Terrorism Prevention Act of 2004 (50 U.S.C. ‘‘(ii) the disclosure revealed information lowing: 435b) is amended by adding at the end the that had been previously disclosed; ‘‘(7) not later than 180 days after the date following: ‘‘(iii) of the employee’s motive for making of enactment of the Whistleblower Protec- ‘‘(j) RETALIATORY REVOCATION OF SECURITY the disclosure; tion Enhancement Act of 2010— CLEARANCES AND ACCESS DETERMINATIONS.— ‘‘(iv) the disclosure was not made in writ- ‘‘(A) developing policies and procedures ‘‘(1) IN GENERAL.—Agency personnel with ing; that permit, to the extent practicable, indi- authority over personnel security clearance ‘‘(v) the disclosure was made while the em- viduals who challenge in good faith a deter- or access determinations shall not take or ployee was off duty; or mination to suspend or revoke a security fail to take, or threaten to take or fail to ‘‘(vi) of the amount of time which has clearance or access to classified information take, any action with respect to any employ- passed since the occurrence of the events de- to retain their government employment sta- ee’s security clearance or access determina- scribed in the disclosure. tus while such challenge is pending; and tion because of— ‘‘(B) REPRISALS.—If a disclosure is made ‘‘(B) developing and implementing uniform ‘‘(A) any disclosure of information to the during the normal course of duties of an em- and consistent policies and procedures to en- Director of National Intelligence (or an em- ployee, the disclosure shall not be excluded sure proper protections during the process ployee designated by the Director of Na- from paragraph (1) if any employee who has for denying, suspending, or revoking a secu- tional Intelligence for such purpose) or the authority to take, direct others to take, rec- rity clearance or access to classified infor- head of the employing agency (or employee ommend, or approve any personnel action mation, including the provision of a right to designated by the head of that agency for with respect to the employee making the dis- appeal such a denial, suspension, or revoca- such purpose) by an employee that the em- closure, took, failed to take, or threatened tion, except that there shall be no appeal of ployee reasonably believes evidences— to take or fail to take a personnel action an agency’s suspension of a security clear- ‘‘(i) a violation of any law, rule, or regula- with respect to that employee in reprisal for ance or access determination for purposes of tion, except for an alleged violation that is a the disclosure. conducting an investigation, if that suspen- minor, inadvertent violation, and occurs dur- ‘‘(4) AGENCY ADJUDICATION.— sion lasts no longer than 1 year or the head ing the conscientious carrying out of official ‘‘(A) REMEDIAL PROCEDURE.—An employee of the agency certifies that a longer suspen- duties; or or former employee who believes that he or

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Defense Intelligence Agency, the National within 90 days after the issuance of notice of ‘‘(F) DE NOVO DETERMINATION.—The Board Geospatial-Intelligence Agency, the National such decision, appeal that decision within shall make a de novo determination, based Security Agency, or the National Reconnais- the agency of that employee or former em- on the entire record and under the standards sance Office, the Committee on Armed Serv- ployee through proceedings authorized by specified in paragraph (4), of whether the em- ices of the Senate and the Committee on paragraph (7) of subsection (a), except that ployee or former employee received an ad- Armed Services of the House of Representa- there shall be no appeal of an agency’s sus- verse security clearance or access deter- tives. pension of a security clearance or access de- mination in violation of paragraph (1). In ‘‘(ii) RECOMMENDATIONS.—If the agency termination for purposes of conducting an considering the record, the Board may weigh head and the head of the entity selected investigation, if that suspension lasts not the evidence, judge the credibility of wit- under subsection (b) do not follow the longer than 1 year (or a longer period in ac- nesses, and determine controverted ques- Board’s recommendation to reinstate a cordance with a certification made under tions of fact. In doing so, the Board may con- clearance, the head of the entity selected subsection (b)(7)). sider the prior fact-finder’s opportunity to under subsection (b) shall notify the com- ‘‘(B) CORRECTIVE ACTION.—If, in the course see and hear the witnesses. mittees described in subclauses (I) through of proceedings authorized under subpara- ‘‘(G) ADVERSE SECURITY CLEARANCE OR AC- (V) of clause (i). graph (A), it is determined that the adverse CESS DETERMINATION.—If the Board finds that ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec- security clearance or access determination the adverse security clearance or access de- tion shall be construed to permit or require violated paragraph (1) of this subsection, the termination violated paragraph (1), it shall judicial review of any— agency shall take specific corrective action then separately determine whether rein- ‘‘(A) agency action under this section; or to return the employee or former employee, stating the security clearance or access de- ‘‘(B) action of the appellate review board as nearly as practicable and reasonable, to termination is clearly consistent with the established under section 204 of the Whistle- the position such employee or former em- interests of national security, with any blower Protection Enhancement Act of 2010. ployee would have held had the violation not doubt resolved in favor of national security, ‘‘(7) PRIVATE CAUSE OF ACTION.—Nothing in occurred. Such corrective action shall in- under Executive Order 12968 (60 Fed. Reg. this section shall be construed to permit, au- clude reasonable attorney’s fees and any 40245; relating to access to classified infor- thorize, or require a private cause of action other reasonable costs incurred, and may in- mation) or any successor thereto (including to challenge the merits of a security clear- clude back pay and related benefits, travel any adjudicative guidelines promulgated ance determination.’’. expenses, and compensatory damages not to under such orders) or any subsequent Execu- (c) ACCESS DETERMINATION DEFINED.—Sec- exceed $300,000. tive order, regulation, or policy concerning tion 3001(a) of the Intelligence Reform and ‘‘(C) CONTRIBUTING FACTOR.—In deter- access to classified information. Terrorism Prevention Act of 2004 (50 U.S.C. mining whether the adverse security clear- ‘‘(H) REMEDIES.— 435b(a)) is amended by adding at the end the ance or access determination violated para- ‘‘(i) CORRECTIVE ACTION.—If the Board finds following: graph (1) of this subsection, the agency shall that the adverse security clearance or access ‘‘(9) The term ‘access determination’ find that paragraph (1) of this subsection was determination violated paragraph (1), it means the process for determining whether violated if a disclosure described in para- shall order the agency head to take specific an employee— graph (1) was a contributing factor in the ad- corrective action to return the employee or ‘‘(A) is eligible for access to classified in- verse security clearance or access deter- former employee, as nearly as practicable formation in accordance with Executive mination taken against the individual, un- and reasonable, to the position such em- Order 12968 (60 Fed. Reg. 40245; relating to ac- less the agency demonstrates by a prepon- ployee or former employee would have held cess to classified information), or any suc- derance of the evidence that it would have had the violation not occurred. Such correc- cessor thereto, and Executive Order 10865 (25 taken the same action in the absence of such tive action shall include reasonable attor- Fed. Reg. 1583; relating to safeguarding clas- disclosure, giving the utmost deference to ney’s fees and any other reasonable costs in- sified information with industry); and the agency’s assessment of the particular curred, and may include back pay and re- ‘‘(B) possesses a need to know under that threat to the national security interests of lated benefits, travel expenses, and compen- Order.’’. the United States in the instant matter. satory damages not to exceed $300,000. The (d) RULE OF CONSTRUCTION.—Nothing in ‘‘(5) APPELLATE REVIEW OF SECURITY CLEAR- Board may recommend, but may not order, section 3001 of the Intelligence Reform and ANCE ACCESS DETERMINATIONS BY DIRECTOR OF reinstatement or hiring of a former em- Terrorism Prevention Act of 2004 (50 U.S.C. NATIONAL INTELLIGENCE.— ployee. The Board may order that the former 435b), as amended by this Act, shall be con- ‘‘(A) DEFINITION.—In this paragraph, the employee be treated as though the employee strued to require the repeal or replacement term ‘Board’ means the appellate review were transferring from the most recent posi- of agency appeal procedures implementing board established under section 204 of the tion held when seeking other positions with- Executive Order 12968 (60 Fed. Reg. 40245; re- Whistleblower Protection Enhancement Act in the executive branch. Any corrective ac- lating to classified national security infor- of 2010. tion shall not include the reinstating of any mation), or any successor thereto, and Exec- ‘‘(B) APPEAL.—Within 60 days after receiv- security clearance or access determination. utive Order 10865 (25 Fed. Reg. 1583; relating ing notice of an adverse final agency deter- The agency head shall take the actions so or- to safeguarding classified information with mination under a proceeding under para- dered within 90 days, unless the Director of industry), or any successor thereto, that graph (4), an employee or former employee National Intelligence, the Secretary of En- meet the requirements of section 3001(b)(7) of may appeal that determination to the Board. ergy, or the Secretary of Defense, in the case such Act, as so amended. ‘‘(C) POLICIES AND PROCEDURES.—The of any component of the Department of De- SEC. 203. REVISIONS RELATING TO THE INTEL- Board, in consultation with the Attorney fense, determines that doing so would endan- LIGENCE COMMUNITY WHISTLE- General, Director of National Intelligence, ger national security. BLOWER PROTECTION ACT. (a) IN GENERAL.—Section 8H of the Inspec- and the Secretary of Defense, shall develop ‘‘(ii) RECOMMENDED ACTION.—If the Board and implement policies and procedures for finds that reinstating the employee or tor General Act of 1978 (5 U.S.C. App.) is amended— adjudicating the appeals authorized by sub- former employee’s security clearance or ac- (1) in subsection (b)— paragraph (B). The Director of National In- cess determination is clearly consistent with (A) by inserting ‘‘(1)’’ after ‘‘(b)’’; and telligence and Secretary of Defense shall the interests of national security, it shall (B) by adding at the end the following: jointly approve any rules, regulations, or recommend such action to the head of the ‘‘(2) If the head of an establishment deter- guidance issued by the Board concerning the entity selected under subsection (b) and the mines that a complaint or information procedures for the use or handling of classi- head of the affected agency. transmitted under paragraph (1) would cre- fied information. ‘‘(I) CONGRESSIONAL NOTIFICATION.— ate a conflict of interest for the head of the ‘‘(D) REVIEW.—The Board’s review shall be ‘‘(i) ORDERS.—Consistent with the protec- establishment, the head of the establishment on the complete agency record, which shall tion of sources and methods, at the time the shall return the complaint or information to be made available to the Board. The Board Board issues an order, the Chairperson of the the Inspector General with that determina- may not hear witnesses or admit additional Board shall notify— tion and the Inspector General shall make evidence. Any portions of the record that ‘‘(I) the Committee on Homeland Security the transmission to the Director of National were submitted ex parte during the agency and Government Affairs of the Senate; Intelligence. In such a case, the require- proceedings shall be submitted ex parte to ‘‘(II) the Select Committee on Intelligence ments of this section for the head of the es- the Board. of the Senate; tablishment apply to the recipient of the In- ‘‘(E) FURTHER FACT-FINDING OR IMPROPER ‘‘(III) the Committee on Oversight and spector General’s transmission. The Director DENIAL.—If the Board concludes that further Government Reform of the House of Rep- of National Intelligence shall consult with fact-finding is necessary or finds that the resentatives; the members of the appellate review board agency improperly denied the employee or ‘‘(IV) the Permanent Select Committee on established under section 204 of the Whistle- former employee the opportunity to present Intelligence of the House of Representatives; blower Protection Enhancement Review Act evidence that, if admitted, would have a sub- and of 2010 regarding all transmissions under this stantial likelihood of altering the outcome, ‘‘(V) the committees of the Senate and the paragraph.’’; the Board shall remand the matter to the House of Representatives that have jurisdic- (2) by designating subsection (h) as sub- agency from which it originated for addi- tion over the employing agency, including in section (i); and

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SAVINGS CLAUSE. complaint or information to an Inspector to security clearance access determinations Nothing in this Act shall be construed to General under this section may notify any described in section 3001(j) of the Intel- imply any limitation on any protections af- member of Congress or congressional staff ligence Reform and Terrorism Prevention forded by any other provision of law to em- member of the fact that such individual has Act of 2004 (50 U.S.C. 435b), as added by this ployees and applicants. made a submission to that particular Inspec- Act; and SEC. 302. EFFECTIVE DATE. tor General, and of the date on which such (B) that shall include a subpanel that re- This Act shall take effect 30 days after the submission was made.’’. flects the composition of the intelligence date of enactment of this Act. (b) CENTRAL INTELLIGENCE AGENCY.—Sec- committee, which shall be composed of intel- tion 17(d)(5) of the Central Intelligence Agen- ligence community elements and inspectors SA 4761. Ms. LANDRIEU (for herself, cy Act of 1949 (50 U.S.C. 403q) is amended— general from intelligence community ele- Mr. VITTER, and Mr. WICKER) submitted (1) in subparagraph (B)— ments, for the purpose of hearing cases that an amendment intended to be proposed (A) by inserting ‘‘(i)’’ after ‘‘(B)’’; and arise in elements of the intelligence commu- to amendment SA 4753 proposed by Mr. (B) by adding at the end the following: nity. ‘‘(ii) If the Director determines that a com- REID (for himself and Mr. MCCONNELL) (c) REPORT ON THE STATUS OF IMPLEMENTA- plaint or information transmitted under to the bill H.R. 4853, to amend the In- TION OF REGULATIONS.—Not later than 2 paragraph (1) would create a conflict of in- years after the date of enactment of this ternal Revenue Code of 1986 to extend terest for the Director, the Director shall re- Act, the Director of National Intelligence the funding and expenditure authority turn the complaint or information to the In- shall submit a report on the status of the im- of the Airport and Airway Trust Fund, spector General with that determination and plementation of the regulations promulgated to amend title 49, United States Code, the Inspector General shall make the trans- under subsection (b) to the congressional to extend authorizations for the air- mission to the Director of National Intel- oversight committees. ligence. In such a case the requirements of port improvement program, and for this subsection for the Director apply to the (d) NONAPPLICABILITY TO CERTAIN TERMI- other purposes; which was ordered to recipient of the Inspector General’s submis- NATIONS.—Section 2303A of title 5, United lie on the table; as follows: sion; and’’; and States Code, as added by this Act, and sec- On page 72, line 4, strike ‘‘2012’’ and insert (2) by adding at the end the following: tion 3001 of the Intelligence Reform and Ter- ‘‘2013’’. ‘‘(H) An individual who has submitted a rorism Prevention Act of 2004 (50 U.S.C. complaint or information to the Inspector 435b), as amended by this Act, shall not SA 4762. Ms. LANDRIEU (for herself, General under this section may notify any apply to adverse security clearance or access Mr. VITTER, and Mr. WICKER) submitted member of Congress or congressional staff determinations if the affected employee is an amendment intended to be proposed concurrently terminated under— member of the fact that such individual has to amendment SA 4753 proposed by Mr. made a submission to the Inspector General, (1) section 1609 of title 10, United States Code; REID (for himself and Mr. MCCONNELL) and of the date on which such submission to the bill H.R. 4853, to amend the In- was made.’’. (2) the authority of the Director of Na- ternal Revenue Code of 1986 to extend SEC. 204. REGULATIONS; REPORTING REQUIRE- tional Intelligence under section 102A(m) of MENTS; NONAPPLICABILITY TO CER- the National Security Act of 1947 (50 U.S.C. the funding and expenditure authority TAIN TERMINATIONS. 403–1(m)), if— of the Airport and Airway Trust Fund, (a) DEFINITIONS.—In this section— (A) the Director personally summarily ter- to amend title 49, United States Code, (1) the term ‘‘congressional oversight com- minates the individual; and to extend authorizations for the air- mittees’’ means the— (B) the Director— port improvement program, and for (i) determines the termination to be in the (A) the Committee on Homeland Security other purposes; which was ordered to and Government Affairs of the Senate; interest of the United States; (B) the Select Committee on Intelligence (ii) determines that the procedures pre- lie on the table; as follows: of the Senate; scribed in other provisions of law that au- On page 72, line 4, strike ‘‘2012’’ and insert (C) the Committee on Oversight and Gov- thorize the termination of the employment ‘‘2013’’. ernment Reform of the House of Representa- of such employee cannot be invoked in a tives; and manner consistent with the national secu- SA 4763. Mr. BROWN of Ohio (for (D) the Permanent Select Committee on rity; and himself and Ms. STABENOW) submitted Intelligence of the House of Representatives; (iii) not later than 5 days after such termi- an amendment intended to be proposed and nation, notifies the congressional oversight to amendment SA 4753 proposed by Mr. (2) the term ‘‘intelligence community ele- committees of the termination; REID (for himself and Mr. MCCONNELL) ment’’— (3) the authority of the Director of the to the bill H.R. 4853, to amend the In- (A) means— Central Intelligence Agency under section ternal Revenue Code of 1986 to extend (i) the Central Intelligence Agency, the De- 104A(e) of the National Security Act of 1947 the funding and expenditure authority fense Intelligence Agency, the National (50 U.S.C. 403–4a(e)), if— Geospatial-Intelligence Agency, the National (A) the Director personally summarily ter- of the Airport and Airway Trust Fund, Security Agency, the Office of the Director minates the individual; and to amend title 49, United States Code, of National Intelligence, and the National (B) the Director— to extend authorizations for the air- Reconnaissance Office; and (i) determines the termination to be in the port improvement program, and for (ii) any executive agency or unit thereof interest of the United States; other purposes; which was ordered to determined by the President under section (ii) determines that the procedures pre- lie on the table; as follows: 2302(a)(2)(C)(ii) of title 5, United States Code, scribed in other provisions of law that au- On page 72, after line 26, add: to have as its principal function the conduct thorize the termination of the employment Subtitle E—Extension of Health Coverage of foreign intelligence or counterintelligence of such employee cannot be invoked in a Improvement activities; and manner consistent with the national secu- (B) does not include the Federal Bureau of rity; and SEC. 771. IMPROVEMENT OF THE AFFORDABILITY Investigation. (iii) not later than 5 days after such termi- OF THE CREDIT. (a) IN GENERAL.—Section 35(a) is amended (b) REGULATIONS.— nation, notifies the congressional oversight by striking ‘‘January 1, 2011’’ and inserting (1) IN GENERAL.—The Director of National committees of the termination; or Intelligence shall prescribe regulations to (4) section 7532 of title 5, United States ‘‘January 1, 2012’’. (b) CONFORMING AMENDMENT.—Section ensure that a personnel action shall not be Code, if— 7527(b) is amended by striking ‘‘January 1, taken against an employee of an intelligence (A) the agency head personally terminates 2011’’ and inserting ‘‘January 1, 2012’’. community element as a reprisal for any dis- the individual; and (c) EFFECTIVE DATE.—The amendments closure of information described in section (B) the agency head— made by this section shall apply to coverage 2303A(b) of title 5, United States Code, as (i) determines the termination to be in the months beginning after December 31, 2010. added by this Act. interest of the United States; SEC. 772. PAYMENT FOR THE MONTHLY PRE- (2) APPELLATE REVIEW BOARD.—Not later (ii) determines that the procedures pre- MIUMS PAID PRIOR TO COMMENCE- than 180 days after the date of enactment of scribed in other provisions of law that au- MENT OF THE ADVANCE PAYMENTS this Act, the Director of National Intel- thorize the termination of the employment OF CREDIT. ligence, in consultation with the Secretary of such employee cannot be invoked in a (a) IN GENERAL.—Section 7527(e) is amend- of Defense, the Attorney General, and the manner consistent with the national secu- ed by striking ‘‘January 1, 2011’’ and insert- heads of appropriate agencies, shall establish rity; and ing ‘‘January 1, 2012’’. an appellate review board that is broadly (iii) not later than 5 days after such termi- (b) EFFECTIVE DATE.—The amendment representative of affected Departments and nation, notifies the congressional oversight made by this section shall apply to coverage agencies and is made up of individuals with committees of the termination. months beginning after December 31, 2010.

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SEC. 773. TAA RECIPIENTS NOT ENROLLED IN (b) EFFECTIVE DATE.—The amendment PN2217 COAST GUARD nomination of An- TRAINING PROGRAMS ELIGIBLE FOR made by this section shall apply to certifi- drew C. Kirkpatrick, which was received by CREDIT. cates issued after December 31, 2010. the Senate and appeared in the Congres- (a) IN GENERAL.—Section 35(c)(2)(B) is f sional Record of September 23, 2010. amended by striking ‘‘January 1, 2011’’ and PN2266 COAST GUARD nominations (6) be- inserting ‘‘January 1, 2012’’. EXECUTIVE SESSION ginning Julia A. Hein, and ending Susan L. (b) EFFECTIVE DATE.—The amendment Subocz, which nominations were received by made by this section shall apply to coverage the Senate and appeared in the Congres- months beginning after December 31, 2010. EXECUTIVE CALENDAR sional Record of September 29, 2010. SEC. 774. TAA PRE-CERTIFICATION PERIOD RULE PN2267 COAST GUARD nominations (59) FOR PURPOSES OF DETERMINING Mrs. GILLIBRAND. Mr. President, I beginning Thomas Allan, and ending Aylwyn WHETHER THERE IS A 63-DAY LAPSE IN CREDITABLE COVERAGE. ask unanimous consent that the Sen- S. Young, which nominations were received (a) IRC AMENDMENT.—Section 9801(c)(2)(D) ate proceed to executive session to con- by the Senate and appeared in the Congres- is amended by striking ‘‘January 1, 2011’’ and sider en bloc Calendar Nos. 1174, 1175, sional Record of September 29, 2010. inserting ‘‘January 1, 2012’’. 1176, 1177, 1178, 1179, 1204, 1214, and all PN2355 COAST GUARD nominations (182) (b) ERISA AMENDMENT.—Section nominations on the Secretary’s desk in beginning JOSEPH B. ABEYTA, and ending 701(c)(2)(C) of the Employee Retirement In- DAVID K. YOUNG, which nominations were the Coast Guard and NOAA; that the received by the Senate and appeared in the come Security Act of 1974 (29 U.S.C. nominations be confirmed en bloc and 1181(c)(2)(C)) is amended by striking ‘‘Janu- Congressional Record of November 18, 2010. ary 1, 2011’’ and inserting ‘‘January 1, 2012’’. the motions to reconsider be laid upon PN2356 COAST GUARD nominations (135) (c) PHSA AMENDMENT.—Section the table en bloc; that any statements beginning STEPHEN ADLER, and ending 2701(c)(2)(C) of the Public Health Service Act relating to the nominations be printed SCOTT A. WOOLSEY, which nominations (42 U.S.C. 300gg(c)(2)(C)) is amended by strik- in the RECORD; that the President be were received by the Senate and appeared in ing ‘‘January 1, 2011’’ and inserting ‘‘January immediately notified of the Senate’s the Congressional Record of November 18, 1, 2012’’. action, and the Senate then resume 2010. (d) EFFECTIVE DATE.—The amendments legislative session. NATIONAL OCEANIC AND ATMOSPHERIC made by this section shall apply to plan ADMINISTRATION years beginning after December 31, 2010. The PRESIDING OFFICER. Without objection, it is so ordered. PN2301 NATIONAL OCEANIC AND AT- SEC. 775. CONTINUED QUALIFICATION OF FAM- MOSPHERIC ADMINISTRATION nomina- ILY MEMBERS AFTER CERTAIN The nominations considered and con- tions (12) beginning DENISE J. GRUCCIO, EVENTS. firmed were as follows: and ending LINDSAY R. KURELJA, which (a) IN GENERAL.—Section 35(g)(9) is amend- DEPARTMENT OF JUSTICE nominations were received by the Senate and ed by striking ‘‘January 1, 2011’’ and insert- Ripley Rand, of North Carolina, to be appeared in the Congressional Record of No- ing ‘‘January 1, 2012’’. vember 17, 2010. (b) CONFORMING AMENDMENT.—Section United States Attorney for the Middle Dis- 173(f)(8) of the Workforce Investment Act of trict of North Carolina for the term of four f years. 1998 (29 U.S.C. 2918(f)(8)) is amended by strik- LEGISLATIVE SESSION ing ‘‘January 1, 2011’’ and inserting ‘‘January Charles M. Oberly III, of Delaware, to be 1, 2012’’. United States Attorney for the District of The PRESIDING OFFICER. Under (c) EFFECTIVE DATE.—The amendments Delaware for the term of four years. the previous order, the Senate will re- made by this section shall apply to months William Conner Eldridge, of Arkansas, to turn to legislative session. beginning after December 31, 2010. be United States Attorney for the Western f SEC. 776. EXTENSION OF COBRA BENEFITS FOR District of Arkansas for the term of four CERTAIN TAA-ELIGIBLE INDIVID- years. CAPTA REAUTHORIZATION ACT OF UALS AND PBGC RECIPIENTS. Frank Leon-Guerrero, of Guam, to be 2010 (a) ERISA AMENDMENTS.— United States Marshal for the District of (1) PBGC RECIPIENTS.—Section 602(2)(A)(v) Guam and concurrently United States Mar- Mrs. GILLIBRAND. Mr. President, I of the Employee Retirement Income Secu- shal for the District of the Northern Mariana ask that the Chair lay before the Sen- rity Act of 1974 (29 U.S.C. 1162(2)(A)(v)) is Islands for the term of four years. ate a message from the House of Rep- amended by striking ‘‘December 31, 2010’’ and Charles Thomas Weeks II, of Oklahoma, to resentatives with respect to S. 3817. inserting ‘‘December 31, 2011’’. be United States Marshal for the Western The PRESIDING OFFICER laid be- (2) TAA-ELIGIBLE INDIVIDUALS.—Section District of Oklahoma for the term of four fore the Senate the following message years. 602(2)(A)(vi) of such Act (29 U.S.C. from the House of Representatives. 1162(2)(A)(vi)) is amended by striking ‘‘De- Kenneth F. Bohac, of Illinois, to be United cember 31, 2010’’ and inserting ‘‘December 31, States Marshal for the Central District of Il- Resolved, That the bill from the Senate (S. 2011’’. linois for the term of four years. 3817) entitled ‘‘An Act to amend the Child Abuse Prevention and Treatment Act, the (b) IRC AMENDMENTS.— IN THE AIR FORCE (1) PBGC RECIPIENTS.—Section Family Violence Prevention and Services The following named officer for appoint- 4980B(f)(2)(B)(i)(V) is amended by striking Act, the Child Abuse Prevention and Treat- ment in the United States Air Force to the ‘‘December 31, 2010’’ and inserting ‘‘Decem- ment and Adoption Reform Act of 1978, and grade indicated while assigned to a position ber 31, 2011’’. the Abandoned Infants Assistance Act of 1988 of importance and responsibility under title (2) TAA-ELIGIBLE INDIVIDUALS.—Section to reauthorize the Acts, and for other pur- 10, U.S.C., section 601: 4980B(f)(2)(B)(i)(VI) is amended by striking poses’’, do pass with an amendment. ‘‘December 31, 2010’’ and inserting ‘‘Decem- To be general The amendment is printed in the ber 31, 2011’’. Gen. Claude R. Kehler RECORD of December 8, 2010, at page H (c) PHSA AMENDMENTS.—Section IN THE COAST GUARD 8114.) 2202(2)(A)(iv) of the Public Health Service The following named officers for appoint- Act (42 U.S.C. 300bb-2(2)(A)(iv)) is amended Mr. HARKIN. Mr. President, I want ment in the United States Coast Guard to by striking ‘‘December 31, 2010’’ and insert- to start by thanking my friend and col- the grade indicated under title 14, U.S.C., ing ‘‘December 31, 2011’’. league Senator DODD. Throughout his section 271: (d) EFFECTIVE DATE.—The amendments career in the Senate, he has always made by this section shall apply to periods of To be rear admiral (lower half) made it a priority to protect and sup- coverage which would (without regard to the Captain Bruce D. Baffer port America’s children and families. I amendments made by this section) end on or Captain David R. Callahan am delighted to reauthorize the Child after December 31, 2010. Captain Richard T. Gromlich Abuse Prevention and Treatment Act, SEC. 777. ADDITION OF COVERAGE THROUGH Captain Frederick J. Kenney Family Violence Prevention and Serv- VOLUNTARY EMPLOYEES’ BENE- Captain Marshall B. Lytle FICIARY ASSOCIATIONS. Captain Stephen P. Metruck ices Act, the Adoption Opportunity Act (a) IN GENERAL.—Section 35(e)(1)(K) is Captain Fred M. Midgette and the Abandoned Infants Assistance amended by striking ‘‘January 1, 2011’’ and NOMINATIONS PLACED ON THE SECRETARY’S Act as we celebrate the congressional inserting ‘‘January 1, 2012’’. DESK legacy of the distinguished senior Sen- (b) EFFECTIVE DATE.—The amendment ator from Connecticut. Children and made by this section shall apply to coverage IN THE COAST GUARD families will benefit from these and im- months beginning after December 31, 2010. PN2216 COAST GUARD nominations (2) be- SEC. 778. NOTICE REQUIREMENTS. ginning GREGORY J. HALL, and ending JO- provements in the system designed to (a) IN GENERAL.—Section 7527(d)(2) is SEPH T. BENIN, which nominations were re- prevent and serve victims of child amended by striking ‘‘January 1, 2011’’ and ceived by the Senate and appeared in the abuse and neglect, as well as family, inserting ‘‘January 1, 2012’’. Congressional Record of September 23, 2010. domestic, and dating violence.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00079 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8808 CONGRESSIONAL RECORD — SENATE December 10, 2010 I would also like to thank the Sen- I want to take a moment to mention pertise and on-the-ground knowledge ator from Wyoming, Mr. ENZI, and the those who have worked so hard on my that these groups possess. Senator from Tennessee, Mr. ALEX- staff. I would like to thank Dan Smith The numbers of children abused or ANDER, for working with us and show- and Pam Smith, who do a great job on neglected and individuals affected by ing a true commitment to getting this all of the undertakings of our com- domestic and dating violence are as- done. The efforts of the Senators and mittee. I would like to thank Bethany tounding and intolerable. In fiscal year their staff were invaluable. Little, David Johns, and Ashley Eden 2008, 772,000 children were victims of The legislation that was just passed of my staff. David has been working on abuse and neglect, 1,740 children died and is being sent to the President is a this for over 3 years; I especially appre- due to abuse or neglect, and 38 percent step forward in improving child safety ciate his diligence and effort. I would of victims of abuse did not receive and strengthening critical services for also like to thank Senator DODD’s staff postinvestigative services. Nearly one children and families. At a time when Jim Fenton and Averi Pakulis. Also, as in four women is abused by a partner in there is little talk of successful bipar- I mentioned, this has been a bipartisan her adult life, three women are killed tisan effort in Congress, this legisla- effort, and I would also like to thank by a partner each day in this country, tion is a reflection of changes we are Senator ENZI’s staff, Beth Buehlmann and 15.5 million children are exposed to able to make on behalf of American and Kelly Hastings as well as David domestic violence each year. We can- citizens when we work together, to do Cleary from Senator ALEXANDER’s not be complacent on these issues with better for our Nation’s children and staff. I am also grateful to Chairman numbers like this. families. MILLER and Ranking Member JOHN The programs authorized under The need for this reauthorization is KLINE of the House Committee on Edu- CAPTA and FVPSA provide vital di- real. In my home State of Iowa, after a cation and Labor and their excellent rect services and prevention efforts to 2-year drop, the rates of child abuse staff for the impressive work they did the victims they target. I am pleased rose 11 percent in 2009. The CAPTA Re- moving this bill quickly through the with some of the improvements we authorization Act of 2010 will help com- House. I appreciate the assistance of were able to make to these programs in munities better meet the needs of our Lynn Rosenthal, the White House Ad- this reauthorization bill. children. This reauthorization encour- viser on Violence Against Women, in CAPTA funds State and discre- ages states to provide high-quality pre- improving the Family Violence Pre- tionary grants designed to help States vention services to reduce abuse and vention and Services Act. Vice Presi- strengthen their child protective serv- neglect, ensures that investigations of ice agencies to prevent and treat child allegations protect children and reduce dent BIDEN has long been, and con- abuse and neglect, including research, trauma, and directs vital resources to tinues to be, a leader in this area and home visitation, outreach, and edu- communities that need them most. Lynn assisted him ably in this effort. cation. It also funds community-based Each of these enhancements should ul- This is a major undertaking, and to be efforts to develop, operate, expand, en- timately result in improved systems able to get this kind of joint effort at for training and supporting adults time like this is a great tribute to all hance, and coordinate initiatives charged with identifying, preventing, of those who have worked so hard. As aimed at strengthening and supporting and responding to reports of abuse, ne- always, we could not work without the families in the prevention of child mal- glect, and maltreatment; stronger co- excellent services of the Senate Office treatment, and to foster an under- ordination among service providers; of Legislative Counsel, especially Liz standing of diverse populations to more and a renewed focus on the need to re- King. effectively prevent and treat child spond to the conditions that lead to This is a critical step forward to en- abuse and neglect. abuse, neglect, and maltreatment in suring the safety of America’s children, For CAPTA, our bill encourages order to prevent them from occurring. youth and adults—let’s keep walking States to adopt a differential response These are important steps, but we forward together. model in working with at-risk families still have a lot of work to do. Rates of Mr. DODD. Mr. President, today the to improve their outcomes and prevent child abuse and neglect are still far too Senate passed the CAPTA Reauthoriza- child abuse and neglect from ever oc- high across the country. Each year, an tion Act of 2010, S. 3817, and cleared it curring; addresses the co-occurrence of estimated 794,000 children are victims for the President’s signature. This bill child abuse and neglect along with do- of child abuse or neglect. In its Child reauthorizes several important stat- mestic violence, mental health prob- Maltreatment 2008 Report on Child utes—the Child Abuse Prevention and lems, and substance abuse disorders; Abuse and Neglect, the U.S. Depart- Treatment Act, CAPTA, and the Fam- strengthens data collection regarding ment of Health and Human Services re- ily Violence Prevention and Services our child protection service systems in ported that, each year, 141,700 children Act, FVPSA, the Adoption Opportuni- States; and increases parental involve- are seriously injured, 18,000 are se- ties Act, and the Abandoned Infants ment in the planning and implementa- verely disabled, and 1,760 children die Assistance Act. I would like to thank tion of programs under these grants, to as a result of abuse or neglect. Children Chairman HARKIN for his work on this better meet the needs of children. younger than 6 years of age accounted reauthorization, and for his tireless ef- FVPSA is the primary Federal fund- for 76 percent of child fatalities. Babies forts on behalf of abused and neglected ing stream for domestic violence shel- younger than one year of age ac- children and victims of domestic and ters and direct services to victims of counted for 42 percent of child fatali- dating violence. I would also like to domestic violence and their children. ties. Each of these children is one too thank the ranking member of our com- Over 2,000 shelters and programs re- many children who have suffered. mittee, Senator ENZI, and the ranking ceive grant funding under FVPSA, Similarly, we cannot ignore the 1.5 member of my Subcommittee on Chil- which provide emergency shelters, hot- million women and 900,000 men who are dren and Families, Senator ALEX- lines, counseling and advocacy, and raped or physically assaulted by a part- ANDER. They have been good partners primary and secondary prevention for ner every year in the United States. in this process. I also thank Chairman victims of domestic violence. For Last year over 247,000 victims and their MILLER, who brought this bill to the FVPSA, our bill recognizes dating vio- children were turned away because House floor this week and worked hard lence victims as recipients of FVPSA shelters were full or programs lacked to ensure that we passed it before ad- services, and acknowledges that women resources. The services provided for journing for the year. between the ages of 16 and 24 are at through this reauthorization are essen- I would also like to thank the great greatest risk for being victims of do- tial. In one day alone in 2009, more work of the advocate communities that mestic violence; addresses the needs of than 65,000 victims of domestic vio- work constantly to protect children underserved populations that find it lence and their children received life- and victims of domestic and dating vio- challenging to access FVPSA services; saving services from local domestic vi- lence, including the National Child and codifies a program to provide serv- olence programs because of the serv- Abuse Coalition and the National Task ices for children exposed to violence in ices provided through FVPSA. By pass- Force to End Violence Against Women. their homes and communities. ing this reauthorization we have taken Work on this reauthorization would The Abandoned Infants Assistance steps toward providing a better system. not have been possible without the ex- Act provides assistance to abandoned

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The GYNECOLOGIC CANCER ORGANIZATIONS.—In car- MENTS.—Title 5, United States Code, is amended Adoption Opportunities program is de- rying out the national campaign under this sub- in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) signed to promote adoption, eliminate section, the Secretary shall consult with non- of section 1214, in subsections (a), (e)(1), and (i) profit gynecologic cancer organizations, with a of section 1221, and in subsection (a)(2)(C)(i) of barriers to adoption, and provide per- mission both to conquer ovarian or other section 2302, by inserting ‘‘or section manent, loving homes for children, es- gynecologic cancer and to provide outreach to 2302(b)(9)(A)(i), (B)(i), (C), or (D)’’ after ‘‘sec- pecially children with special needs. State and local governments and communities, tion 2302(b)(8)’’ or ‘‘(b)(8)’’ each place it ap- Adoption promotion and post-adoption for the purpose of determining the best practices pears. support are both critical components for providing gynecologic cancer information (2) OTHER REFERENCES.—(A) Title 5, United in successfully achieving the goals of and outreach services to varied populations.’’. States Code, is amended in subsection the program and I am pleased that our Mrs. GILLIBRAND. I ask unanimous (b)(4)(B)(i) of section 1214 and in subsection bill reauthorizes these two programs as consent that the committee-reported (e)(1) of section 1221, by inserting ‘‘or protected activity’’ after ‘‘disclosure’’ each place it ap- well. substitute amendment be agreed to, pears. We have an enormous responsibility the bill, as amended, be read a third (B) Section 2302(b)(9) of title 5, United States to provide for some of our most vulner- time and passed, the motions to recon- Code, is amended— able citizens—children who have been sider be laid upon the table with no in- (i) by striking subparagraph (A)and inserting abused or neglected, victims of domes- tervening action or debate, and any the following: tic violence and their children, chil- statements related to the bill be print- ‘‘(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or reg- dren who have been abandoned, and ed in the RECORD. ulation— those awaiting adoption. The programs The PRESIDING OFFICER. Without ‘‘(i) with regard to remedying a violation of reauthorized under S. 3817 represent objection, it is so ordered. paragraph (8); or some of the Federal Government’s best The committee amendment in the ‘‘(ii) with regard to remedying a violation of approaches for addressing these issues nature of a substitute was agreed to. any other law, rule, or regulation;’’; and and challenges and I am pleased to see The amendment was ordered to be (ii) in subparagraph (B), by inserting ‘‘(i) or this Chamber recognizing their impor- engrossed and the bill to be read a (ii)’’ after ‘‘subparagraph (A)’’. tance. third time. (C) Section 2302 of title 5, United States Code, I would again like to thank my col- The bill (H.R. 2941), as amended, was is amended by adding at the end the following: ‘‘(f) A disclosure shall not be excluded from leagues for their work on this impor- read the third time and passed. subsection (b)(8) because— tant bill and pledge to continue to do f ‘‘(1) the disclosure was made during the nor- the work we need to and have the re- WHISTLEBLOWER PROTECTION mal course of the duties of the employee; sponsibility to do to prevent child ‘‘(2) the disclosure was made to a person, in- ENHANCEMENT ACT OF 2009 abuse and neglect, and domestic and cluding a supervisor, who participated in an ac- dating violence in this country. Mrs. GILLIBRAND. Mr. President, I tivity that the employee or applicant reasonably Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the Sen- believed to be covered by subsection (b)(8)(A)(ii); ask unanimous consent that the Sen- ate proceed to Calendar No. 219, S. 372. ‘‘(3) the disclosure revealed information that The PRESIDING OFFICER. The had been previously disclosed; ate concur in the House amendment, ‘‘(4) of the employee or applicant’s motive for the motion to reconsider be laid upon clerk will report the bill by title. making the disclosure; the table, with no intervening action The legislative clerk read as follows: ‘‘(5) the disclosure was not made in writing; or debate, and any statements related A bill (S. 372) to amend chapter 23 of title ‘‘(6) the disclosure was made while the em- to the bill be printed in the RECORD. 5, United States Code, to clarify the disclo- ployee was off duty; or The PRESIDING OFFICER. Without sures of information protected from prohib- ‘‘(7) of the amount of time which has passed objection, it is so ordered. ited personnel practices, require a statement since the occurrence of the events described in in nondisclosure policies, forms, and agree- the disclosure.’’. f ments that such policies, forms, and agree- SEC. 102. DEFINITIONAL AMENDMENTS. JOHANNA’S LAW ments conform with certain disclosure pro- (a) DISCLOSURES.—Section 2302(a)(2) of title 5, REAUTHORIZATION ACT tections, provide certain authority for the United States Code, is amended— Special Counsel, and for other purposes. Mrs. GILLIBRAND. Mr. President, I (1) in subparagraph (B)(ii), by striking ‘‘and’’ There being no objection, the Senate at the end; ask unanimous consent that the Sen- proceeded to consider the bill, which (2) in subparagraph (C)(iii), by striking the ate proceed to the immediate consider- had been reported from the Committee period at the end and inserting ‘‘; and’’; and ation of Calendar No. 676, H.R. 2941. on Homeland Security and Govern- (3) by adding at the end the following: The PRESIDING OFFICER. The ‘‘(D) ‘disclosure’ means a formal or informal clerk will report the bill by title. mental Affairs, with an amendment to communication or transmission, but does not in- The legislative clerk read as follows: strike all after the enacting clause and clude a communication concerning policy deci- A bill (H.R. 2941) to reauthorize and en- insert in lieu thereof the following: sions that lawfully exercise discretionary au- hance Johanna’s Law to increase public SECTION 1. SHORT TITLE. thority unless the employee or applicant pro- awareness and knowledge with respect to This Act may be cited as the ‘‘Whistleblower viding the disclosure reasonably believes that gynecologic cancers. Protection Enhancement Act of 2009’’. the disclosure evidences— TITLE I—PROTECTION OF CERTAIN DIS- ‘‘(i) any violation of any law, rule, or regula- There being no objection, the Senate tion, except for an alleged violation that is a proceeded to consider the bill, which CLOSURES OF INFORMATION BY FED- ERAL EMPLOYEES minor, inadvertent violation, and occurs during had been reported from the Committee the conscientious carrying out of official duties; on Health, Education, Labor, and Pen- SEC. 101. CLARIFICATION OF DISCLOSURES COV- or ERED. sions, with an amendment to strike all ‘‘(ii) gross mismanagement, a gross waste of (a) IN GENERAL.—Section 2302(b)(8) of title 5, funds, an abuse of authority, or a substantial after the enacting clause and insert in United States Code, is amended— and specific danger to public health or safety.’’. lieu thereof the following: (1) in subparagraph (A)(i)— (b) CLEAR AND CONVINCING EVIDENCE.—Sec- H.R. 2941 (A) by striking ‘‘a violation’’ and inserting tions 1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, ‘‘any violation’’; and SECTION 1. REAUTHORIZATION AND ENHANCE- United States Code, are amended by adding at (B) by adding ‘‘except for an alleged violation MENT OF JOHANNA’S LAW. the end the following: ‘‘For purposes of the pre- that is a minor, inadvertent violation, and oc- (a) IN GENERAL.—Section 317P(d) of the Pub- ceding sentence, ‘clear and convincing evidence’ curs during the conscientious carrying out of of- lic Health Service Act (42 U.S.C. 247b–17(d)(4)) is means the degree of proof that produces in the ficial duties,’’ after ‘‘regulation,’’; and amended— mind of the trier of fact a firm belief as to the (2) in subparagraph (B)(i)— (1) in paragraph (4), by inserting after ‘‘2009’’ allegations sought to be established.’’. the following: ‘‘and $18,000,000 for the period of (A) by striking ‘‘a violation’’ and inserting fiscal years 2012 through 2014’’; and ‘‘any violation (other than a violation of this SEC. 103. REBUTTABLE PRESUMPTION. (2) by redesignating paragraph (4) as para- section)’’; and Section 2302(b) of title 5, United States Code, graph (6). (B) by adding ‘‘except for an alleged violation is amended by amending the matter following (b) CONSULTATION WITH NONPROFIT that is a minor, inadvertent violation, and oc- paragraph (12) to read as follows: GYNECOLOGIC CANCER ORGANIZATIONS.—Section curs during the conscientious carrying out of of- ‘‘This subsection shall not be construed to au- 317P(d) of such Act (42 U.S.C. 247b–17(d)), as ficial duties,’’ after regulation,’’. thorize the withholding of information from amended by subsection (a), is further amended (b) PROHIBITED PERSONNEL PRACTICES UNDER Congress or the taking of any personnel action by inserting after paragraph (3) the following: SECTION 2302(B)(9).— against an employee who discloses information

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00081 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8810 CONGRESSIONAL RECORD — SENATE December 10, 2010 to Congress. For purposes of paragraph (8), any may include fees, costs, or damages reasonably a petition to review a final order or final deci- presumption relating to the performance of a incurred due to an agency investigation of the sion of the Board shall be filed in the United duty by an employee who has authority to take employee, if such investigation was commenced, States Court of Appeals for the Federal Circuit. or direct others to take, recommend, or approve expanded, or extended in retaliation for the dis- Notwithstanding any other provision of law, any personnel action may be rebutted by sub- closure or protected activity that formed the any petition for review shall be filed within 60 stantial evidence. For purposes of paragraph basis of the corrective action.’’. days after the Board issues notice of the final (8), a determination as to whether an employee (2) DAMAGES.—Section 1221(g) of title 5, order or decision of the Board. or applicant reasonably believes that such em- United States Code, is amended by adding at the ployee or applicant has disclosed information end the following: ‘‘(B) During the 5-year period beginning on that evidences any violation of law, rule, regu- ‘‘(4) Any corrective action ordered under this the effective date of the Whistleblower Protec- lation, gross mismanagement, a gross waste of section to correct a prohibited personnel practice tion Enhancement Act of 2009, a petition to re- funds, an abuse of authority, or a substantial may include fees, costs, or damages reasonably view a final order or final decision of the Board and specific danger to public health or safety incurred due to an agency investigation of the that raises no challenge to the Board’s disposi- shall be made by determining whether a disin- employee, if such investigation was commenced, tion of allegations of a prohibited personnel terested observer with knowledge of the essential expanded, or extended in retaliation for the dis- practice described in section 2302(b) other than facts known to and readily ascertainable by the closure or protected activity that formed the practices described in section 2302(b)(8), or employee could reasonably conclude that the ac- basis of the corrective action.’’. 2302(b)(9)(A)(i), (B)(i), (C), or (D) shall be filed tions of the Government evidence such viola- SEC. 105. EXCLUSION OF AGENCIES BY THE in the United States Court of Appeals for the tions, mismanagement, waste, abuse, or dan- PRESIDENT. Federal Circuit or any court of appeals of com- ger.’’. Section 2302(a)(2)(C) of title 5, United States petent jurisdiction as provided under paragraph SEC. 104. PERSONNEL ACTIONS AND PROHIBITED Code, is amended by striking clause (ii) and in- (2).’’. PERSONNEL PRACTICES. serting the following: (b) REVIEW OBTAINED BY OFFICE OF PER- (a) PERSONNEL ACTION.—Section 2302(a)(2)(A) ‘‘(ii)(I) the Federal Bureau of Investigation, SONNEL MANAGEMENT.—Section 7703(d) of title 5, of title 5, United States Code, is amended— the Central Intelligence Agency, the Defense In- (1) in clause (x), by striking ‘‘and’’ after the telligence Agency, the National Geospatial-In- United States Code, is amended to read as fol- semicolon; and telligence Agency, the National Security Agen- lows: (2) by redesignating clause (xi) as clause (xii) cy, the Office of the Director of National Intel- ‘‘(d)(1) Except as provided under paragraph and inserting after clause (x) the following: ligence, and the National Reconnaissance Of- (2), this paragraph shall apply to any review ‘‘(xi) the implementation or enforcement of fice; and obtained by the Director of the Office of Per- any nondisclosure policy, form, or agreement; ‘‘(II) as determined by the President, any ex- sonnel Management. The Director of the Office and’’. ecutive agency or unit thereof the principal of Personnel Management may obtain review of (b) PROHIBITED PERSONNEL PRACTICE.— function of which is the conduct of foreign in- any final order or decision of the Board by fil- (1) IN GENERAL.—Section 2302(b) of title 5, telligence or counterintelligence activities, if the ing, within 60 days after the Board issues notice United States Code, is amended— determination (as that determination relates to (A) in paragraph (11), by striking ‘‘or’’ at the of the final order or decision of the Board, a pe- a personnel action) is made before that per- end; tition for judicial review in the United States sonnel action; or’’. (B) in paragraph (12), by striking the period Court of Appeals for the Federal Circuit if the and inserting ‘‘; or’’; and SEC. 106. DISCIPLINARY ACTION. Director determines, in the discretion of the Di- (C) by inserting after paragraph (12) the fol- Section 1215(a)(3) of title 5, United States rector, that the Board erred in interpreting a lowing: Code, is amended to read as follows: civil service law, rule, or regulation affecting ‘‘(3)(A) A final order of the Board may im- ‘‘(13) implement or enforce any nondisclosure personnel management and that the Board’s de- policy, form, or agreement, if such policy, form, pose— ‘‘(i) disciplinary action consisting of removal, cision will have a substantial impact on a civil or agreement does not contain the following service law, rule, regulation, or policy directive. statement: ‘These provisions are consistent with reduction in grade, debarment from Federal em- ployment for a period not to exceed 5 years, sus- If the Director did not intervene in a matter be- and do not supersede, conflict with, or other- fore the Board, the Director may not petition for wise alter the employee obligations, rights, or li- pension, or reprimand; ‘‘(ii) an assessment of a civil penalty not to review of a Board decision under this section abilities created by Executive Order No. 12958; exceed $1,000; or unless the Director first petitions the Board for section 7211 of title 5, United States Code (gov- ‘‘(iii) any combination of disciplinary actions a reconsideration of its decision, and such peti- erning disclosures to Congress); section 1034 of described under clause (i) and an assessment de- tion is denied. In addition to the named re- title 10, United States Code (governing disclo- scribed under clause (ii). spondent, the Board and all other parties to the sure to Congress by members of the military); ‘‘(B) In any case brought under paragraph (1) proceedings before the Board shall have the section 2302(b)(8) of title 5, United States Code in which the Board finds that an employee has right to appear in the proceeding before the (governing disclosures of illegality, waste, committed a prohibited personnel practice under Court of Appeals. fraud, abuse, or public health or safety threats); section 2302(b)(8), or 2302(b)(9)(A)(i), (B)(i), (C), ‘‘(2) During the 5-year period beginning on the Intelligence Identities Protection Act of 1982 or (D), the Board shall impose disciplinary ac- the effective date of the Whistleblower Protec- (50 U.S.C. 421 et seq.) (governing disclosures tion if the Board finds that the activity pro- tion Enhancement Act of 2009, this paragraph that could expose confidential Government tected under section 2302(b)(8), or agents); and the statutes which protect against 2302(b)(9)(A)(i), (B)(i), (C), or (D) was a signifi- shall apply to any review obtained by the Direc- disclosures that could compromise national se- cant motivating factor, even if other factors also tor of the Office of Personnel Management that curity, including sections 641, 793, 794, 798, and motivated the decision, for the employee’s deci- raises no challenge to the Board’s disposition of 952 of title 18, United States Code, and section sion to take, fail to take, or threaten to take or allegations of a prohibited personnel practice 4(b) of the Subversive Activities Control Act of fail to take a personnel action, unless that em- described in section 2302(b) other than practices 1950 (50 U.S.C. 783(b)). The definitions, require- ployee demonstrates, by preponderance of evi- described in section 2302(b)(8), or ments, obligations, rights, sanctions, and liabil- dence, that the employee would have taken, 2302(b)(9)(A)(i), (B)(i), (C), or (D). The Director ities created by such Executive order and such failed to take, or threatened to take or fail to of the Office of Personnel Management may ob- statutory provisions are incorporated into this take the same personnel action, in the absence tain review of any final order or decision of the agreement and are controlling.’ ’’. of such protected activity.’’. Board by filing, within 60 days after the Board (2) NONDISCLOSURE POLICY, FORM, OR AGREE- SEC. 107. REMEDIES. issues notice of the final order or decision of the MENT IN EFFECT BEFORE THE DATE OF ENACT- (a) ATTORNEY FEES.—Section 1204(m)(1) of Board, a petition for judicial review in the MENT.—A nondisclosure policy, form, or agree- title 5, United States Code, is amended by strik- United States Court of Appeals for the Federal ment that was in effect before the date of enact- Circuit or any court of appeals of competent ju- ment of this Act, but that does not contain the ing ‘‘agency involved’’ and inserting ‘‘agency where the prevailing party is employed or has risdiction as provided under subsection (b)(2) if statement required under section 2302(b)(13) of the Director determines, in the discretion of the title 5, United States Code, (as added by this applied for employment’’. (b) DAMAGES.—Sections 1214(g)(2) and Director, that the Board erred in interpreting a Act) for implementation or enforcement— civil service law, rule, or regulation affecting (A) may be enforced with regard to a current 1221(g)(1)(A)(ii) of title 5, United States Code, personnel management and that the Board’s de- employee if the agency gives such employee no- are amended by striking all after ‘‘travel ex- cision will have a substantial impact on a civil tice of the statement; and penses,’’ and inserting ‘‘any other reasonable (B) may continue to be enforced after the ef- and foreseeable consequential damages, and service law, rule, regulation, or policy directive. fective date of this Act with regard to a former compensatory damages (including interest, rea- If the Director did not intervene in a matter be- employee if the agency posts notice of the state- sonable expert witness fees, and costs).’’ each fore the Board, the Director may not petition for ment on the agency website for the 1-year period place it appears. review of a Board decision under this section following that effective date. SEC. 108. JUDICIAL REVIEW. unless the Director first petitions the Board for (c) RETALIATORY INVESTIGATIONS.— (a) IN GENERAL.—Section 7703(b) of title 5, a reconsideration of its decision, and such peti- (1) AGENCY INVESTIGATION.—Section 1214 of United States Code, is amended by striking the tion is denied. In addition to the named re- title 5, United States Code, is amended by add- matter preceding paragraph (2) and inserting spondent, the Board and all other parties to the ing at the end the following: the following: proceedings before the Board shall have the ‘‘(h) Any corrective action ordered under this ‘‘(b)(1)(A) Except as provided in subpara- right to appear in the proceeding before the section to correct a prohibited personnel practice graph (B) and paragraph (2) of this subsection, court of appeals.’’.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00082 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8811 SEC. 109. PROHIBITED PERSONNEL PRACTICES (ii) of section 2302(b)(8)(A) of title 5, United No. 12958; section 7211 of title 5, United States AFFECTING THE TRANSPORTATION States Code; and Code (governing disclosures to Congress); sec- SECURITY ADMINISTRATION. (C) shall come within the protections of sec- tion 1034 of title 10, United States Code (gov- (a) IN GENERAL.—Chapter 23 of title 5, United tion 2302(b)(8)(B) of title 5, United States Code, erning disclosure to Congress by members of the States Code, is amended— if— military); section 2302(b)(8) of title 5, United (1) by redesignating sections 2304 and 2305 as (i) the conditions under subparagraph (A) of States Code (governing disclosures of illegality, sections 2305 and 2306, respectively; and this paragraph are satisfied; and waste, fraud, abuse, or public health or safety (2) by inserting after section 2303 the fol- (ii) the disclosure is made to an individual re- threats); the Intelligence Identities Protection lowing: ferred to in the matter preceding clause (i) of Act of 1982 (50 U.S.C. 421 et seq.) (governing dis- ‘‘§ 2304. Prohibited personnel practices affect- section 2302(b)(8)(B) of title 5, United States closures that could expose confidential Govern- ing the Transportation Security Adminis- Code, for the receipt of disclosures. ment agents); and the statutes which protect tration (2) APPLICATION.—Subsection (a) shall apply against disclosure that may compromise the na- ‘‘(a) IN GENERAL.—Notwithstanding any other to any disclosure of information by an employee tional security, including sections 641, 793, 794, provision of law, any individual holding or ap- or applicant without restriction to time, place, 798, and 952 of title 18, United States Code, and plying for a position within the Transportation form, motive, context, forum, or prior disclosure section 4(b) of the Subversive Activities Act of Security Administration shall be covered by— made to any person by an employee or appli- 1950 (50 U.S.C. 783(b)). The definitions, require- ‘‘(1) the provisions of section 2302(b)(1), (8), cant, including a disclosure made in the ordi- ments, obligations, rights, sanctions, and liabil- and (9); nary course of an employee’s duties. ities created by such Executive order and such ‘‘(2) any provision of law implementing sec- (3) RULE OF CONSTRUCTION.—Nothing in this statutory provisions are incorporated into this tion 2302(b) (1), (8), or (9) by providing any right section shall be construed to imply any limita- agreement and are controlling.’’. or remedy available to an employee or applicant tion on the protections of employees and appli- (2) ENFORCEABILITY.— for employment in the civil service; and cants afforded by any other provision of law, (A) IN GENERAL.—Any nondisclosure policy, ‘‘(3) any rule or regulation prescribed under including protections with respect to any disclo- form, or agreement described under paragraph any provision of law referred to in paragraph sure of information believed to be evidence of (1) that does not contain the statement required (1) or (2). censorship related to research, analysis, or tech- under paragraph (1) may not be implemented or ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this nical information. enforced to the extent such policy, form, or section shall be construed to affect any rights, SEC. 111. CLARIFICATION OF WHISTLEBLOWER agreement is inconsistent with that statement. apart from those described in subsection (a), to RIGHTS FOR CRITICAL INFRASTRUC- (B) NONDISCLOSURE POLICY, FORM, OR AGREE- which an individual described in subsection (a) TURE INFORMATION. MENT IN EFFECT BEFORE THE DATE OF ENACT- might otherwise be entitled under law.’’. Section 214(c) of the Homeland Security Act of MENT.—A nondisclosure policy, form, or agree- (b) TECHNICAL AND CONFORMING AMEND- 2002 (6 U.S.C. 133(c)) is amended by adding at ment that was in effect before the date of enact- MENT.—The table of sections for chapter 23 of the end the following: ‘‘For purposes of this sec- ment of this Act, but that does not contain the title 5, United States Code, is amended by strik- tion a permissible use of independently obtained statement required under paragraph (1)— ing the items relating to sections 2304 and 2305, information includes the disclosure of such in- (i) may be enforced with regard to a current respectively, and by inserting the following: formation under section 2302(b)(8) of title 5, employee if the agency gives such employee no- ‘‘2304. Prohibited personnel practices affecting United States Code.’’. tice of the statement; and the Transportation Security Ad- SEC. 112. ADVISING EMPLOYEES OF RIGHTS. (ii) may continue to be enforced after the ef- ministration. Section 2302(c) of title 5, United States Code, fective date of this Act with regard to a former ‘‘2305. Responsibility of the Government Ac- is amended by inserting ‘‘, including how to employee if the agency posts notice of the state- countability Office. make a lawful disclosure of information that is ment on the agency website for the 1-year period ‘‘2306. Coordination with certain other provi- specifically required by law or Executive order following that effective date. sions of law.’’. to be kept secret in the interest of national de- (b) PERSONS OTHER THAN GOVERNMENT EM- (c) EFFECTIVE DATE.—The amendments made fense or the conduct of foreign affairs to the PLOYEES.—Notwithstanding subsection (a), a by this section shall take effect on the date of Special Counsel, the Inspector General of an nondisclosure policy, form, or agreement that is enactment of this section. agency, Congress, or other agency employee des- to be executed by a person connected with the SEC. 110. DISCLOSURE OF CENSORSHIP RELATED ignated to receive such disclosures’’ after conduct of an intelligence or intelligence-related TO RESEARCH, ANALYSIS, OR TECH- ‘‘chapter 12 of this title’’. activity, other than an employee or officer of NICAL INFORMATION. SEC. 113. SPECIAL COUNSEL AMICUS CURIAE AP- the United States Government, may contain pro- (a) DEFINITIONS.—In this subsection— PEARANCE. visions appropriate to the particular activity for (1) the term ‘‘agency’’ has the meaning given Section 1212 of title 5, United States Code, is which such document is to be used. Such policy, under section 2302(a)(2)(C) of title 5, United amended by adding at the end the following: form, or agreement shall, at a minimum, require States Code; ‘‘(h)(1) The Special Counsel is authorized to that the person will not disclose any classified (2) the term ‘‘applicant’’ means an applicant appear as amicus curiae in any action brought information received in the course of such activ- for a covered position; in a court of the United States related to any ity unless specifically authorized to do so by the (3) the term ‘‘censorship related to research, civil action brought in connection with section United States Government. Such nondisclosure analysis, or technical information’’ means any 2302(b) (8) or (9), or as otherwise authorized by policy, form, or agreement shall also make it effort to distort, misrepresent, or suppress re- law. In any such action, the Special Counsel is clear that such forms do not bar disclosures to search, analysis, or technical information; authorized to present the views of the Special Congress or to an authorized official of an exec- (4) the term ‘‘covered position’’ has the mean- Counsel with respect to compliance with section utive agency or the Department of Justice that ing given under section 2302(a)(2)(B) of title 5, 2302(b) (8) or (9) and the impact court decisions are essential to reporting a substantial violation United States Code; would have on the enforcement of such provi- of law. (5) the term ‘‘employee’’ means an employee in sions of law. SEC. 116. REPORTING REQUIREMENTS. a covered position in an agency; and ‘‘(2) A court of the United States shall grant (6) the term ‘‘disclosure’’ has the meaning (a) GOVERNMENT ACCOUNTABILITY OFFICE.— the application of the Special Counsel to appear given under section 2302(a)(2)(D) of title 5, (1) REPORT.—Not later than 40 months after in any such action for the purposes described United States Code. the date of enactment of this Act, the Comp- under subsection (a).’’. (b) PROTECTED DISCLOSURE.— troller General shall submit a report to the Com- (1) IN GENERAL.—Any disclosure of informa- SEC. 114. SCOPE OF DUE PROCESS. mittee on Homeland Security and Governmental tion by an employee or applicant for employ- (a) SPECIAL COUNSEL.—Section Affairs of the Senate and the Committee on ment that the employee or applicant reasonably 1214(b)(4)(B)(ii) of title 5, United States Code, is Oversight and Government Reform of the House believes is evidence of censorship related to re- amended by inserting ‘‘, after a finding that a of Representatives on the implementation of this search, analysis, or technical information shall protected disclosure was a contributing factor,’’ Act. come within the protections of section after ‘‘ordered if’’. (2) CONTENTS.—The report under this para- 2302(b)(8)(A) of title 5, United States Code, if— (b) INDIVIDUAL ACTION.—Section 1221(e)(2) of graph shall include— (A) the employee or applicant reasonably be- title 5, United States Code, is amended by insert- (A) an analysis of any changes in the number lieves that the censorship related to research, ing ‘‘, after a finding that a protected disclosure of cases filed with the United States Merit Sys- analysis, or technical information is or will was a contributing factor,’’ after ‘‘ordered if’’. tems Protection Board alleging violations of sec- cause— SEC. 115. NONDISCLOSURE POLICIES, FORMS, tion 2302(b)(8) or (9) of title 5, United States (i) any violation of any law, rule, or regula- AND AGREEMENTS. Code, since the effective date of this Act; tion, except for an alleged violation that is a (a) IN GENERAL.— (B) the outcome of the cases described under minor, inadvertent violation, and occurs during (1) REQUIREMENT.—Each agreement in Stand- subparagraph (A), including whether or not the the conscientious carrying out of official duties; ard Forms 312 and 4414 of the Government and United States Merit Systems Protection Board, or any other nondisclosure policy, form, or agree- the Federal Circuit Court of Appeals, or any (ii) gross mismanagement, a gross waste of ment of the Government shall contain the fol- other court determined the allegations to be friv- funds, an abuse of authority, or a substantial lowing statement: ‘‘These restrictions are con- olous or malicious; and specific danger to public health or safety; sistent with and do not supersede, conflict with, (C) an analysis of the outcome of cases de- (B) the disclosure and information satisfy the or otherwise alter the employee obligations, scribed under subparagraph (A) that were de- conditions stated in the matter following clause rights, or liabilities created by Executive Order cided by a United States District Court and the

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00083 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8812 CONGRESSIONAL RECORD — SENATE December 10, 2010 impact the process has on the Merit Systems plicant pending before the Board at that time later than 15 days before issuing a decision on Protection Board and the Federal court system; which arise out of the same set of operative the merits of a request for corrective action. and facts. Such claims shall be stayed pending com- ‘‘(6) Any decision of the Board, any adminis- (D) any other matter as determined by the pletion of the action filed under subparagraph trative law judge appointed by the Board under Comptroller General. (A) before the appropriate United States district section 3105 of this title and assigned to the (b) STUDY ON REVOCATION OF SECURITY court and any associated appellate review. case, or any employee of the Board designated CLEARANCES.— ‘‘(3) This paragraph applies in any case by the Board and assigned to the case to grant (1) STUDY.—The Council of the Inspectors that— or deny a certification under this paragraph General on Integrity and Efficiency, including ‘‘(A) an employee, former employee, or appli- shall be reviewed only on appeal of a final order the Inspectors General of the Department of cant for employment— or decision of the Board under section 7703, if— Justice, the Office of the Director of National ‘‘(i) seeks corrective action from the Merit Sys- ‘‘(A) the reviewing court determines that the Intelligence, and the Office of Personnel Man- tems Protection Board under section 1221(a) decision by the Board on the merits of the al- agement, shall conduct a study of security based on an alleged prohibited personnel prac- leged prohibited personnel described in section clearance revocations of Federal employees at a tice described in section 2302(b)(8) for which the 2302(b)(8) or (9) (A)(i), (B)(i), (C), or (D) failed select sample of executive branch agencies and associated personnel action is an action covered to meet the standards of section 7703(c); and the appeals process in place at those agencies under section 7512 or 7542; or ‘‘(B) the decision to deny the certification and at the Intelligence Community Whistle- ‘‘(ii) files an appeal under section 7701(a)(1) shall be overturned by the reviewing court if blower Protection Board. The study shall con- alleging as an affirmative defense the commis- such decision is found to be arbitrary, capri- sist of an examination of the number of security sion of a prohibited personnel practice described cious, or an abuse of discretion; and clearances revoked, the process employed by in section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or ‘‘(C) shall not be considered evidence of any each agency in revoking a clearance, the pay (D) for which the associated personnel action is determination by the Board, any administrative and employment status of agency employees an action covered under section 7512 or 7542; law judge appointed by the Board under section during the revocation process, how often such ‘‘(B) no final order or decision is issued by the 3105 of this title, or any employee of the Board revocations result in termination of employment Board within 270 days after the date on which designated by the Board on the merits of the un- or reassignment, how often such revocations are a request for that corrective action or appeal derlying allegations during the course of any based on an improper disclosure of information, has been duly submitted; and action at law or equity for de novo review in the how often security clearances are reinstated fol- ‘‘(C) such employee, former employee, or ap- appropriate United States district court in ac- lowing an appeal, how often security clearances plicant provides written notice to the Board of cordance with this subsection. remain revoked following a finding of retalia- filing an action under this subsection before the ‘‘(7) In any action filed under this sub- tion for making a disclosure, and such other filing of that action. section— ‘‘(A) the district court shall have jurisdiction factors the Inspectors General determine appro- ‘‘(4) This paragraph applies in any case in without regard to the amount in controversy; priate. which— ‘‘(A) an employee, former employee, or appli- ‘‘(B) at the request of either party, such ac- (2) REPORT.—Not later than 18 months after tion shall be tried by the court with a jury; the date of enactment of this Act, the Inspectors cant for employment — ‘‘(i) seeks corrective action from the Merit Sys- ‘‘(C) the court— General shall submit to the Committee on Home- ‘‘(i) subject to clause (iii), shall apply the land Security and Governmental Affairs of the tems Protection Board under section 1221(a) based on an alleged prohibited personnel prac- standards set forth in subsection (e); and Senate and the Committee on Oversight and ‘‘(ii) may award any relief which the court tice described in section 2302(b) (8) or (9) (A)(i), Government Reform of the House of Representa- considers appropriate under subsection (g), ex- (B)(i), (C), or (D) for which the associated per- tives a report on the results of the study re- cept— sonnel action is an action covered under section quired under this paragraph. ‘‘(I) relief for compensatory damages may not 7512 or 7542; or (c) MERIT SYSTEMS PROTECTION BOARD.— exceed $300,000; and ‘‘(ii) files an appeal under section 7701(a)(1) (1) IN GENERAL.—Each report submitted annu- ‘‘(II) relief may not include punitive damages; ally by the Merit Systems Protection Board alleging as an affirmative defense the commis- and under section 1116 of title 31, United States sion of a prohibited personnel practice described ‘‘(iii) notwithstanding section (e)(2), may not Code, shall, with respect to the period covered in section 2302(b) (8) or (9) (A)(i), (B)(i), (C), or order relief if the agency demonstrates by a pre- by such report, include as an addendum the fol- (D) for which the associated personnel action is ponderance of the evidence that the agency lowing: an action covered under section 7512 or 7542; would have taken the same personnel action in (A) Information relating to the outcome of ‘‘(B)(i) within 30 days after the date on which the absence of such disclosure; and cases decided during the applicable year of the the request for corrective action or appeal was ‘‘(D) the Special Counsel may not represent report in which violations of section 2302(b)(8) duly submitted, such employee, former em- the employee, former employee, or applicant for or (9) of title 5, United States Code, were al- ployee, or applicant for employment files a mo- employment. leged. tion requesting a certification consistent with ‘‘(8) An appeal from a final decision of a dis- (B) The number of such cases filed in the re- subparagraph (C) to the Board, any administra- trict court in an action under this subsection gional and field offices, the number of petitions tive law judge appointed by the Board under shall be taken to the Court of Appeals for the for review filed in such cases, and the outcomes section 3105 of this title and assigned to the Federal Circuit or any court of appeals of com- of such cases. case, or any employee of the Board designated petent jurisdiction. by the Board and assigned to the case; and (2) FIRST REPORT.—The first report described ‘‘(9) This subsection applies with respect to ‘‘(ii) such employee has not previously filed a under paragraph (1) submitted after the date of any appeal, petition, or other request for correc- motion under clause (i) related to that request enactment of this Act shall include an adden- tive action duly submitted to the Board, wheth- for corrective action; and dum required under that subparagraph that er under section 1214(b)(2), the preceding provi- ‘‘(C) the Board, any administrative law judge covers the period beginning on January 1, 2009 sions of this section, section 7513(d), section appointed by the Board under section 3105 of through the end of the fiscal year 2009. 7701, or any otherwise applicable provisions of this title and assigned to the case, or any em- law, rule, or regulation.’’. SEC. 117. ALTERNATIVE REVIEW. ployee of the Board designated by the Board (b) SUNSET.— (a) IN GENERAL.—Section 1221 of title 5, and assigned to the case certifies that— (1) IN GENERAL.—Except as provided under United States Code, is amended by adding at the ‘‘(i) the Board is not likely to dispose of the paragraph (2), the amendments made by this end the following: case within 270 days after the date on which a section shall cease to have effect 5 years after ‘‘(k)(1) In this subsection, the term ‘appro- request for that corrective action has been duly the effective date of this Act. priate United States district court’, as used with submitted; (2) PENDING CLAIMS.—The amendments made respect to an alleged prohibited personnel prac- ‘‘(ii) the case— by this section shall continue to apply with re- tice, means the United States district court for ‘‘(I) consists of multiple claims; spect to any claim pending before the Board on the judicial district in which— ‘‘(II) requires complex or extensive discovery; the last day of the 5-year period described under ‘‘(A) the prohibited personnel practice is al- ‘‘(III) arises out of the same set of operative paragraph (1). leged to have been committed; facts as any civil action against the Government SEC. 118. MERIT SYSTEMS PROTECTION BOARD ‘‘(B) the employment records relevant to such filed by the employee, former employee, or appli- SUMMARY JUDGMENT. practice are maintained and administered; or cant pending in a Federal court; or (a) IN GENERAL.—Section 1204(b) of title 5, ‘‘(C) the employee, former employee, or appli- ‘‘(IV) involves a novel question of law; or United States Code, is amended— cant for employment allegedly affected by such ‘‘(iii) under standards applicable to the review (1) by redesignating paragraph (3) as para- practice resides. of motions to dismiss under rule 12(b)(6) of the graph (4); ‘‘(2)(A) An employee, former employee, or ap- Federal Rules of Civil Procedure, including rule (2) by inserting after paragraph (2) the fol- plicant for employment in any case to which 12(d), the request for corrective action (includ- lowing: paragraph (3) or (4) applies may file an action ing any allegations made with the motion under ‘‘(3) With respect to a request for corrective at law or equity for de novo review in the ap- subparagraph (B)) would not be subject to dis- action based on an alleged prohibited personnel propriate United States district court in accord- missal. practice described in section 2302(b)(8) or ance with this subsection. ‘‘(5) The Board shall grant or deny any mo- (9)(A)(i), (B)(i), (C), or (D) for which the associ- ‘‘(B) Upon initiation of any action under sub- tion requesting a certification described under ated personnel action is an action covered under paragraph (A), the Board shall stay any other paragraph (4)(ii) within 90 days after the sub- section 7512 or 7542, the Board, any administra- claims of such employee, former employee, or ap- mission of such motion and, in any event, not tive law judge appointed by the Board under

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00084 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8813 section 3105 of this title, or any employee of the spector General Act of 1978 (5 U.S.C. App.) or ‘‘(III) 2 members shall have a term of 4 years. Board designated by the Board may, with re- any other provision of law, the amendment ‘‘(ii) A member designated under paragraph spect to any party, grant a motion for summary made by subsection (a) shall apply to each Of- (1)(B) shall be ineligible to serve on the Board if judgment when the Board or the administrative fice of Inspector General of an element of the in- that member ceases to serve as an inspector gen- law judge determines that there is no genuine telligence community (as defined in section 3(4) eral for an agency or department of the United issue as to any material fact and that the mov- of the National Security Act of 1947 (50 U.S.C. States. ing party is entitled to a judgment as a matter 401a(4))). ‘‘(iii) A member of the Board may serve on the of law.’’. TITLE II—INTELLIGENCE COMMUNITY Board after the expiration of the term of that (b) SUNSET.— WHISTLEBLOWER PROTECTIONS member until a successor for that member has (1) IN GENERAL.—Except as provided under taken office as a member of the Board. SEC. 201. PROTECTION OF INTELLIGENCE COM- ‘‘(iv) An individual appointed to fill a va- paragraph (2), the amendments made by this MUNITY WHISTLEBLOWERS. section shall cease to have effect 5 years after cancy occurring, other than by the expiration of (a) IN GENERAL.—Title I of the National Secu- a term of office, shall be appointed only for the the effective date of this Act. rity Act of 1947 (50 U.S.C. 402 et seq.) is amend- (2) PENDING CLAIMS.—The amendments made unexpired term of the member that individual ed by adding at the end the following: by this section shall continue to apply with re- succeeds. spect to any claim pending before the Board on ‘‘SEC. 120. INTELLIGENCE COMMUNITY WHISTLE- ‘‘(5) Three members shall constitute a quorum BLOWER PROTECTION BOARD. the last day of the 5-year period described under of the Board. ‘‘(a) ESTABLISHMENT.—There is established paragraph (1). ‘‘(c) RESOURCES AND AUTHORITY.—(1) The Of- within the Office of the Director of National In- fice of the Director of National Intelligence shall SEC. 119. DISCLOSURES OF CLASSIFIED INFOR- telligence the Intelligence Community Whistle- provide the Board with appropriate and ade- MATION. blower Protection Board (in this section referred (a) PROHIBITED PERSONNEL PRACTICES.—Sec- quate office space, together with such equip- to as the ‘Board’) . ment, office supplies, and communications fa- tion 2302(b)(8) of title 5, United States Code, is ‘‘(b) MEMBERSHIP.—(1) The Board shall con- amended— cilities and services as may be necessary for the sist of— operation of the Board, and shall provide nec- (1) in subparagraph (A), by striking ‘‘or’’ ‘‘(A) a Chairperson who shall be appointed by after the semicolon; essary maintenance services for the Board and the President, by and with the advice and con- the equipment and facilities located therein. (2) in subparagraph (B), by adding ‘‘or’’ after sent of the Senate (in this section referred to as the semicolon; and ‘‘(2)(A) For each fiscal year, the Chairperson the ‘Chairperson’); shall transmit a budget estimate and request to (3) by adding at the end the following: ‘‘(B) 2 members who shall be designated by the ‘‘(C) any communication that complies with the Director of National Intelligence. The budg- President— subsection (a)(1), (d), or (h) of section 8H of the et request shall specify the aggregate amount of ‘‘(i) from individuals serving as an inspectors funds requested for such fiscal year for the op- Inspector General Act of 1978 (5 U.S.C. App);’’. general of any agency or department of the (b) INSPECTOR GENERAL ACT OF 1978.—Section erations of the Board. United States who have been appointed by the 8H of the Inspector General Act of 1978 (5 U.S.C. ‘‘(B) In transmitting a proposed budget to the President, by and with the advice and consent App) is amended— President for approval, the Director of National of the Senate; and (1) in subsection (a)(1), by adding at the end Intelligence shall include— ‘‘(ii) after consultation with members of the ‘‘(i) the amount requested by the Chairperson; the following: Council of Inspectors General on Integrity and ‘‘(D) An employee of any agency, as that term and Efficiency; and ‘‘(ii) any comments of the Chairperson with is defined under section 2302(a)(2)(C) of title 5, ‘‘(C) 2 members who shall be appointed by the United States Code, who intends to report to respect to the amount requested. President, by and with the advice and consent ‘‘(3) Subject to applicable law and the policies Congress a complaint or information with re- of the Senate, after consultation with the Attor- of the Director of National Intelligence, the spect to an urgent concern may report the com- ney General, the Director of National Intel- Chairperson, for the purposes of enabling the plaint or information to the Inspector General, ligence, and the Secretary of Defense. Board to fulfill its statutorily assigned func- or designee, of the agency of which that em- ‘‘(D)(i) A member of the Board who serves as tions, is authorized to select, appoint, and em- ployee is employed;’’; and the inspector general of an agency or depart- ploy such officers and employees as may be nec- (2) in subsection (h), by striking paragraph ment shall recuse themselves from any matter essary for carrying out the functions, powers, (2), and inserting the following: brought to the Board by a former employee, em- and duties of the Office. ‘‘(2) The term ‘intelligence committees’ means ployee, or applicant of the agency or depart- ‘‘(4) In consultation with the Attorney Gen- the Permanent Select Committee on Intelligence ment for which that member serves as inspector eral, the Director of National Intelligence, and of the House of Representatives and the Select general. the Secretary of Defense, the Board may pro- Committee on Intelligence of the Senate, except ‘‘(2) The President shall designate 2 alternate mulgate rules, regulations, and guidance and that with respect to disclosures made by employ- members of the Board from individuals serving issue orders to fulfill its functions. The Director ees described in subsection (a)(1)(D), the term as an inspector general of an agency or depart- of National Intelligence, Secretary of Defense, ‘intelligence committees’ means the committees ment of the United States. If a member of the and Attorney General shall jointly approve any of appropriate jurisdiction.’’. Board recuses themselves from a matter pending rules, regulations, or guidance issued under sec- SEC. 120. WHISTLEBLOWER PROTECTION OM- before the Board, an alternate shall serve in tion 121(c)(1)(B). BUDSMAN. place of that member for that matter. ‘‘(5) The number of individuals employed by (a) IN GENERAL.—Section 3(d) of the Inspector ‘‘(3) The members of the Board shall be indi- or on detail to the Board shall not be counted General Act of 1978 (5 U.S.C. App.) is amend- viduals of sound and independent judgment against any limitation on the number of per- ed— who shall collectively possess substantial experi- sonnel, positions, or full-time equivalents in the (1) in paragraph (1), by striking ‘‘and’’ after ence in national security and personnel matters. Office of the Director of National Intelligence. the semicolon; ‘‘(4)(A) The Chairperson shall be compensated ‘‘SEC. 121. INTELLIGENCE COMMUNITY WHISTLE- (2) in paragraph (2), by striking the period at a rate equal to the daily equivalent of the an- BLOWER PROTECTIONS. and inserting ‘‘; and’’; and nual rate of basic pay prescribed for level III of ‘‘(a) DEFINITIONS.—In this section: (3) by adding at the end the following: the Executive Schedule under section 5314 of ‘‘(1) The term ‘agency’ means an Executive ‘‘(3) designate a Whistleblower Protection Om- title 5, United States Code, plus 3 percent for department or independent establishment, as de- budsman who shall advocate for the interests of each day (including travel time) during which fined under sections 101 and 104 of title 5, agency employees or applicants who make pro- the Chairperson is engaged in the performance United States Code, that contains an intel- tected disclosures of information, educate agen- of the duties of the Board. ligence community element. cy personnel about prohibitions on retaliation ‘‘(B) The members designated under para- ‘‘(2) The term ‘intelligence community ele- for protected disclosures, and advise agency em- graph (1)(B) and alternate members designated ment’ means— ployees, applicants, or former employees who under paragraph (2) shall serve without com- ‘‘(A) the Federal Bureau of Investigation, the have made or are contemplating making a pro- pensation in addition to that received for their Central Intelligence Agency, the Defense Intel- tected disclosure.’’. services as inspectors general. ligence Agency, the National Geospatial-Intel- (b) CENTRAL INTELLIGENCE AGENCY.—Section ‘‘(C) The members appointed under paragraph ligence Agency, the National Security Agency, 17(e) of the Central Intelligence Agency Act of (1)(C) shall— the Office of the Director of National Intel- 1949 (50 U.S.C. 403q(e)) is amended by adding at ‘‘(i) perform their duties for a period not to ex- ligence, and the National Reconnaissance Of- the end the following: ceed 130 days during any period of 365 consecu- fice; and ‘‘(9) The Inspector General shall designate a tive days; and ‘‘(B) any executive agency or unit thereof de- Whistleblower Protection Ombudsman who shall ‘‘(ii) shall be compensated at the rate of pay termined by the President under section advocate for the interests of agency employees for the Chairperson specified in paragraph (A). 2302(a)(2)(C)(ii) of title 5, United States Code, to or applicants who make protected disclosures of ‘‘(D)(i) The members of the Board shall serve have as its principal function the conduct of information, educate agency personnel about 4-year terms at the pleasure of the President, ex- foreign intelligence or counterintelligence activi- prohibitions on retaliation for protected disclo- cept that of the members first appointed or des- ties, if the determination (as that determination sures, and advise agency employees, applicants, ignated— relates to a personnel action) is made before or former employees who have made or are con- ‘‘(I) the Chairperson shall have a term of 6 that personnel action. templating making a protected disclosure.’’. years; ‘‘(3) The term ‘personnel action’— (c) APPLICATION TO INTELLIGENCE COMMU- ‘‘(II) 2 members shall have a term of 5 years; ‘‘(A) means any action taken against an em- NITY.—Notwithstanding section 8K of the In- and ployee of an intelligence community element

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00085 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8814 CONGRESSIONAL RECORD — SENATE December 10, 2010 that would be considered a personnel action, as ‘‘(D) of the employee or applicant’s motive for sonable attorney’s fees and any other reason- defined in section 2302(a)(2)(A) of title 5, United making the disclosure; able costs incurred, and may include back pay States Code, if taken against an employee sub- ‘‘(E) the disclosure was not made in writing; and related benefits, travel expenses, and com- ject to such section 2302; and ‘‘(F) the disclosure was made while the em- pensatory damages not to exceed $300,000. Un- ‘‘(B) shall not include the denial, suspension, ployee was off duty; or less the employee, former employee, or applicant or revocation of a security clearance or denying ‘‘(G) of the amount of time which has passed consents, no more than 60 days shall pass from access to classified or sensitive information or a since the occurrence of the events described in the submission of the report by the impartial suspension with pay pending an investigation. the disclosure. fact-finder to the agency head and the final de- ‘‘(4) The term ‘prohibited personnel practice’ ‘‘(3) Nothing in this subsection shall be con- cision by the agency head or the designee of the means any action prohibited by subsection (b) of strued to authorize the withholding of informa- agency head. this section. tion from the Congress or the taking of any per- ‘‘(3) In determining whether the employee, ‘‘(b) PROHIBITED PERSONNEL PRACTICES.—(1) sonnel action against an employee who discloses former employee, or applicant has been sub- No person who has authority to take, direct oth- information to the Congress. jected to a prohibited personnel practice, the ers to take, recommend, or approve any per- ‘‘(c) REMEDIAL PROCEDURE.—(1)(A) An em- agency head or the designee of the agency head sonnel action, shall, with respect to such au- ployee, applicant, or former employee of an in- shall find that a prohibited personnel practice thority— telligence community element who believes that occurred if a disclosure described in subsection ‘‘(A) take or fail to take, or threaten to take such employee, applicant, or former employee (b) was a contributing factor in the personnel or fail to take, a personnel action with respect has been subjected to a prohibited personnel action which was taken against the individual, to any intelligence community element employee practice may petition for an appeal of the per- unless the agency demonstrates by clear and or applicant for employment because of— sonnel action to the agency head or the designee convincing evidence that it would have taken ‘‘(i) any disclosure of information to an offi- of the agency head within 60 days after dis- the same personnel action in the absence of such cial of an agency by an employee or applicant covery of the alleged adverse personnel action. disclosure. which the employee or applicant reasonably be- ‘‘(B) The appeal shall be conducted within the ‘‘(4)(A) Any employee, former employee, or ap- lieves evidences— agency according to rules of procedure issued by plicant adversely affected or aggrieved by a ‘‘(I) any violation of law, rule, or regulation the Intelligence Community Whistleblower Pro- final order or decision of the agency head or the except for an alleged violation that is a minor, tection Board under section 120(c)(4). Those designee of the agency head under paragraph inadvertent violation, and occurs during the rules shall be based on those pertaining to pro- (1) may appeal that decision to the Intelligence conscientious carrying out of official duties; or hibited personnel practices defined under sec- Community Whistleblower Protection Board ‘‘(II) gross mismanagement, a gross waste of tion 2302(b)(8) of title 5, United States Code, and within 60 days after the issuance of such order. funds, an abuse of authority, or a substantial provide— Such appeal shall be conducted under rules of and specific danger to public health or safety, ‘‘(i) for an independent and impartial fact- procedure issued by the Board under section finder; if such disclosure is not specifically prohibited 120(c)(4). ‘‘(ii) for notice and the opportunity to be ‘‘(B) The Board’s review shall be on the agen- by law and if such information is not specifi- heard, including the opportunity to present rel- cy record. The Board may not hear witnesses or cally required by Executive order to be kept se- evant evidence, including witness testimony; admit additional evidence. Any portions of the cret in the interest of national defense or the ‘‘(iii) that the employee, applicant, or former record that were submitted ex parte during the conduct of foreign affairs; employee may be represented by counsel; ‘‘(ii) any disclosure to the inspector general of agency proceedings shall not be disclosed to the ‘‘(iv) that the employee, applicant, or former employee, former employee, or applicant during an agency or another employee designated by employee has a right to a decision based on the the head of the agency to receive such disclo- proceedings before the Board. record developed during the appeal; ‘‘(C) If the Board concludes that further fact- sures, of information which the employee or ap- ‘‘(v) that, unless agreed to by the employee finding is necessary or finds that the agency im- plicant reasonably believes evidences— and the agency concerned, not more than 180 properly denied the employee, former employee, ‘‘(I) any violation of law, rule, or regulation, days shall pass from the filing of the appeal to or applicant the opportunity to present evidence except for an alleged violation that is a minor, the report of the impartial fact-finder to the that, if admitted, would have a substantial like- inadvertent violation, and occurs during the agency head or the designee of the agency head; lihood of altering the outcome, the Board conscientious carrying out of official duties; or ‘‘(vi) for the use of information specifically re- shall— ‘‘(II) gross mismanagement, a gross waste of quired by Executive order to be kept secret in ‘‘(i) remand the matter to the agency from funds, an abuse of authority, or a substantial the interest of national defense or the conduct which it originated for additional proceedings in and specific danger to public health or safety; of foreign affairs in a manner consistent with accordance with the rules of procedure issued or the interests of national security, including ex by the Board; or ‘‘(iii) any communication that complies with parte submissions where the agency determines ‘‘(ii) refer the matter to another agency for subsection (a)(1), (d), or (h) of section 8H of the that the interests of national security so war- additional proceedings in accordance with the Inspector General Act of 1978 (5 U.S.C. App.) or rant; and rules of procedure issued by the Board. that complies with subparagraphs (A), (D), or ‘‘(vii) that the employee, applicant, or former ‘‘(D) The Board shall make a de novo deter- (H) of section 17(d)(5) of the Central Intelligence employee shall have no right to compel the pro- mination, based on the entire record, of whether Agency Act of 1949 (50 U.S.C. 403q); or duction of information specifically required by the employee, former employee, or applicant suf- ‘‘(B) take or fail to take, or threaten to take Executive order to be kept secret in the interest fered a prohibited personnel practice. In consid- or fail to take, any personnel action against any of national defense or the conduct of foreign af- ering the record, the Board may weigh the evi- intelligence community element employee or ap- fairs, except evidence necessary to establish that dence, judge the credibility of witnesses, and de- plicant for employment because of— the employee made the disclosure or communica- termine controverted questions of fact; in doing ‘‘(i) the exercise of any appeal, complaint, or tion such employee alleges was protected by sub- so, the Board may consider the prior fact-find- grievance right granted by subsection (c); section (b)(1)(A). er’s opportunity to see and hear the witnesses. ‘‘(ii) testifying for or otherwise lawfully as- ‘‘(C) If the Board certifies that agency proce- ‘‘(E) On the basis of the agency record, the sisting any individual in the exercise of any dures in effect on the date of enactment of this Board shall determine whether the employee, right referred to in clause (i); or section, including procedures promulgated former employee, or applicant has been sub- ‘‘(iii) cooperating with or disclosing informa- under section 2303 of title 5, United States Code, jected to a prohibited personnel practice, and tion to the inspector general of an agency in before that date, adequately provide guaranties shall either issue an order denying relief or shall connection with an audit, inspection, or inves- required under subparagraph (B)(i) through order the agency head to take specific corrective tigation conducted by the inspector general, in (vi), the appeal may be conducted according to action to return the employee, former employee, accordance with applicable provisions of law, those procedures. or applicant, as nearly as practicable and rea- if the actions described under clauses (i), (ii), ‘‘(2) On the basis of the record developed dur- sonable, to the position such employee, former and (iii) do not result in the employee or appli- ing the appeal, the impartial fact-finder shall employee, or applicant would have held had the cant unlawfully disclosing information specifi- prepare a report to the agency head or the des- prohibited personnel practice not occurred. Such cally required by Executive order to be kept se- ignee of the agency head setting forth findings, corrective action shall include reasonable attor- cret in the interest of national defense or the conclusions, and, if applicable, recommended ney’s fees and any other reasonable costs in- conduct of foreign affairs or any other informa- corrective action. After reviewing the record and curred, and may include back pay and related tion the disclosure of which is specifically pro- the impartial fact-finder’s report, the agency benefits, travel expenses, and compensatory hibited by law. head or the designee of the agency head shall damages not to exceed $300,000. The Board may ‘‘(2) A disclosure shall not be excluded from determine whether the employee, former em- recommend, but may not order, reinstatement or paragraph (1) because— ployee, or applicant has been subjected to a pro- hiring of a former employee or applicant. The ‘‘(A) the disclosure was made during the nor- hibited personnel practice, and shall either issue agency head shall take the actions so ordered, mal course of the duties of the employee; an order denying relief or shall implement cor- unless the President determines that doing so ‘‘(B) the disclosure was made to a person, in- rective action to return the employee, former em- would endanger national security. Unless the cluding a supervisor, who participated in an ac- ployee, or applicant, as nearly as practicable employee, former employee, or applicant con- tivity that the employee or applicant reasonably and reasonable, to the position such employee, sents, no more than 180 days shall pass from the believed to be covered by paragraph (1)(A)(ii); former employee, or applicant would have held filing of the appeal with the Board to the final ‘‘(C) the disclosure revealed information that had the prohibited personnel practice not oc- decision by the Board. Any period of time dur- had been previously disclosed; curred. Such corrective action shall include rea- ing which the Board lacks a sufficient number

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00086 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8815 of members to undertake a review shall be ex- ‘‘(ii) determines that the procedures prescribed nial, suspension, or revocation, except that cluded from the 180-day period. in other provisions of law that authorize the ter- there shall be no appeal of an agency’s suspen- ‘‘(F) In determining whether the employee, mination of the employment of such employee sion of a security clearance or access determina- former employee, or applicant has been sub- cannot be invoked in a manner consistent with tion for purposes of conducting an investiga- jected to a prohibited personnel practice, the the national security; and tion, if that suspension lasts no longer than 1 agency head or the designee of the agency head ‘‘(iii) notifies the congressional oversight com- year, including such policies and procedures for shall find that a prohibited personnel practice mittees of such termination within 5 days after appeals based on those pertaining to prohibited occurred if a disclosure described in subsection the termination; or personnel practices defined under section (b) of this section was a contributing factor in ‘‘(4) section 7532 of title 5, United States Code, 2302(b)(8) of title 5, United States Code, and the personnel action which was taken against if— that provide— the individual, unless the agency demonstrates ‘‘(A) the agency head personally summarily ‘‘(i) for an independent and impartial fact- by clear and convincing evidence that it would terminates the individual; and finder; have taken the same personnel action in the ab- ‘‘(B) the agency head— ‘‘(ii) for notice and the opportunity to be sence of such disclosure. ‘‘(i) determines the termination to be in the in- heard, including the opportunity to present rel- ‘‘(5)(A)(i) During the 5-year period beginning terest of the United States, evant evidence, including witness testimony; on the effective date of the Whistleblower Pro- ‘‘(ii) determines that the procedures prescribed ‘‘(iii) that the employee, applicant, or former tection Enhancement Act of 2009, an employee, in other provisions of law that authorize the ter- employee may be represented by counsel; ‘‘(iv) that the employee, applicant, or former former employee, applicant, or an agency may mination of the employment of such employee employee has a right to a decision based on the file a petition to review a final order of the cannot be invoked in a manner consistent with record developed during the appeal; Board in the United States Court of Appeals for the national security; and ‘‘(v) that, unless agreed to by the employee the Federal Circuit or the United States court of ‘‘(iii) notifies the congressional oversight com- and the agency concerned, no more than 180 appeals for a circuit in which the reprisal is al- mittees of such termination within 5 days after days shall pass from the filing of the appeal to leged in the order to have occurred. Notwith- the termination. the report of the impartial fact finder to the standing any other provision of law, any peti- ‘‘(f) If an employee, former employee, or appli- agency head or the designee of the agency head; tion for review shall be filed within 60 days after cant seeks to challenge both a prohibited per- ‘‘(vi) for the use of information specifically re- the date of issuance of the final order of the sonnel practice under this section and an ad- quired by Executive order to be kept secret in Board. verse security clearance or access determination the interest of national defense or the conduct ‘‘(ii) After the 5-year period described under under section 3001(j) of the Intelligence Reform of foreign affairs in a manner consistent with clause (i), a petition to review a final order de- and Terrorism Prevention Act of 2004 (50 U.S.C. the interests of national security, including ex scribed under that clause shall be filed in the 435b(j)), the employee shall bring both claims parte submissions if the agency determines that United States Court of Appeals for the Federal under the procedure set forth in 3001(j) of that the interests of national security so warrant; Circuit. Act for challenging an adverse security clear- and ‘‘(B) The court of appeals shall review the ance or access determination. If the Board ‘‘(vii) that the employee, applicant, or former record and hold unlawful and set aside any awards compensatory damages for such claim or employee shall have no right to compel the pro- agency action, findings, or conclusions found to claims, the total amount of compensatory dam- duction of information specifically required by be— ages ordered shall not exceed $300,000.’’. Executive order to be kept secret in the interest ‘‘(i) arbitrary, capricious, an abuse of discre- (b) REPEAL OF SECTION 2303.— of national defense or the conduct of foreign af- tion, or otherwise not in accordance with law; (1) IN GENERAL.—Title 5, United States Code is fairs, except evidence necessary to establish that ‘‘(ii) obtained without procedures required by amended— the employee made the disclosure or communica- law, rule, or regulation having been followed; or (A) by striking section 2303; and tion such employee alleges was protected by sub- ‘‘(iii) unsupported by substantial evidence. (B) by striking the item relating to section paragraphs (A), (B), and (C) of subsection ‘‘(C) Any portions of the record that were sub- 2303 in the table of sections for chapter 23 of (j)(1).’’. mitted ex parte during the agency proceedings that title. (b) RETALIATORY REVOCATION OF SECURITY shall be submitted ex parte to the Board and (2) EFFECTIVE DATE.—This paragraph shall CLEARANCES AND ACCESS DETERMINATIONS.— any reviewing court. take effect on the date on which rules are issued Section 3001 of the Intelligence Reform and Ter- ‘‘(D) At the time the Board issues an order, as required under section 121(c)(1)(B) of the Na- rorism Prevention Act of 2004 (50 U.S.C. 435b) is the Chairperson shall notify the chairpersons tional Security Act of 1947 (as added by this amended by adding at the end the following: and ranking members of— Act). ‘‘(j) RETALIATORY REVOCATION OF SECURITY ‘‘(i) the Committee on Homeland Security and (c) TECHNICAL AND CONFORMING AMEND- CLEARANCES AND ACCESS DETERMINATIONS.— Government Affairs of the Senate; MENT.—The table of contents for the National ‘‘(1) IN GENERAL.—Agency personnel with au- ‘‘(ii) the Select Committee on Intelligence of Security Act of 1947 (50 U.S.C. 401 note) is thority over personnel security clearance or ac- the Senate; amended by inserting after the item relating to cess determinations shall not take or fail to ‘‘(iii) the Committee on Oversight and Govern- section 119B the following: take, or threaten to take or fail to take, any ac- ment Reform of the House of Representatives; ‘‘Sec. 120. Intelligence Community Whistle- tion with respect to any employee or applicant’s and blower Protection Board. security clearance or access determination be- ‘‘(iv) the Permanent Select Committee on In- ‘‘Sec. 121. Intelligence community whistleblower cause of— telligence of the House of Representatives. ‘‘(A) any disclosure of information to an offi- protections.’’. ‘‘(d) Except as expressly provided in this sec- cial of an Executive agency by an employee or tion, there shall be no judicial review of agency SEC. 202. REVIEW OF SECURITY CLEARANCE OR applicant which the employee or applicant rea- actions under this section. ACCESS DETERMINATIONS. sonably believes evidences— ‘‘(e) This section shall not apply to termi- (a) IN GENERAL.—Section 3001(b) of the Intel- ‘‘(i) a violation of any law, rule, or regula- nations executed under— ligence Reform and Terrorism Prevention Act of tion, except for an alleged violation that is a ‘‘(1) section 1609 of title 10, United States 2004 (50 U.S.C. 435b(b)) is amended— minor, inadvertent violation, and occurs during Code; (1) in the matter preceding paragraph (1), by the conscientious carrying out of official duties; ‘‘(2) the authority of the Director of National striking ‘‘Not’’ and inserting ‘‘Except as other- or Intelligence under section 102A(m) of this Act, wise provided, not’’; ‘‘(ii) gross mismanagement, a gross waste of if— (2) in paragraph (5), by striking ‘‘and’’ after funds, an abuse of authority, or a substantial ‘‘(A) the Director personally summarily termi- the semicolon; and specific danger to public health or safety, nates the individual; and (3) in paragraph (6), by striking the period at if such disclosure is not specifically prohibited ‘‘(B) the Director— the end and inserting ‘‘; and’’; and by law and if such disclosure does not reveal in- ‘‘(i) determines the termination to be in the in- (4) by inserting after paragraph (6) the fol- formation specifically authorized under criteria terest of the United States; lowing: established by statute, Executive Order, Presi- ‘‘(ii) determines that the procedures prescribed ‘‘(7) not later than 30 days after the date of dential directive, or Presidential memorandum in other provisions of law that authorize the ter- enactment of the Whistleblower Protection En- to be kept secret in the interest of national de- mination of the employment of such employee hancement Act of 2009— fense or the conduct of foreign affairs; cannot be invoked in a manner consistent with ‘‘(A) developing policies and procedures that ‘‘(B) any disclosure to the Inspector General the national security; and permit, to the extent practicable, individuals of an agency or another employee designated by ‘‘(iii) notifies the congressional oversight com- who challenge in good faith a determination to the head of the agency to receive such disclo- mittees of such termination within 5 days after suspend or revoke a security clearance or access sures, of information which the employee or ap- the termination; to classified information to retain their govern- plicant reasonably believes evidences— ‘‘(3) the authority of the Director of the Cen- ment employment status while such challenge is ‘‘(i) a violation of any law, rule, or regula- tral Intelligence Agency under section 104A(e) of pending; and tion, except for an alleged violation that is a this Act, if— ‘‘(B) developing and implementing uniform minor, inadvertent violation, and occurs during ‘‘(A) the Director personally summarily termi- and consistent policies and procedures to ensure the conscientious carrying out of official duties; nates the individual; and proper protections during the process for deny- or ‘‘(B) the Director— ing, suspending, or revoking a security clear- ‘‘(ii) gross mismanagement, a gross waste of ‘‘(i) determines the termination to be in the in- ance or access to classified information, includ- funds, an abuse of authority, or a substantial terest of the United States; ing the provision of a right to appeal such a de- and specific danger to public health or safety;

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00087 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8816 CONGRESSIONAL RECORD — SENATE December 10, 2010 ‘‘(C) any communication that complies with preponderance of the evidence that it would former employee or applicant, and any relief subsection (a)(1), (d), or (h) of section 8H of the have taken the same action in the absence of shall not include the reinstating of any security Inspector General Act of 1978 (5 U.S.C. App.) or such disclosure, giving the utmost deference to clearance or access determination. The agency that complies with subsection (d)(5)(A), (D), or the agency’s assessment of the particular threat head shall take the actions so ordered, unless (H) of section 17 of the Central Intelligence to the national security interests of the United the President determines that doing so would Agency Act of 1949 (50 U.S.C. 403q); States in the instant matter. endanger national security. ‘‘(D) the exercise of any appeal, complaint, or ‘‘(4) REVIEW BY THE INTELLIGENCE COMMUNITY ‘‘(ii) RECOMMENDED ACTION.—If the Board grievance right granted by any law, rule, or reg- WHISTLEBLOWER PROTECTION BOARD.— finds that reinstating the employee, former em- ulation; ‘‘(A) APPEAL.—Within 60 days after receiving ployee, or applicant’s security clearance or ac- ‘‘(E) testifying for or otherwise lawfully as- notice of an adverse final agency determination cess determination is clearly consistent with the sisting any individual in the exercise of any under a proceeding under paragraph (3), an em- interests of national security, it shall rec- right referred to in subparagraph (D); or ployee, former employee, or applicant for em- ommend such action to the head of the entity se- ‘‘(F) cooperating with or disclosing informa- ployment may appeal that determination to the lected under subsection (b) and the head of the tion to the inspector general of an agency, in Intelligence Community Whistleblower Protec- affected agency. accordance with applicable provisions of law in tion Board. ‘‘(H) CONGRESSIONAL NOTIFICATION.— connection with an audit, inspection, or inves- ‘‘(B) POLICIES AND PROCEDURES.—The Board, ‘‘(i) ORDERS.—At the time the Board issues an tigation conducted by the inspector general, in consultation with the Attorney General, Di- order, the Chairperson of the Board shall notify if the actions described under subparagraphs rector of National Intelligence, and the Sec- the chairpersons and ranking members of— (D) through (F) do not result in the employee or retary of Defense, shall develop and implement ‘‘(I) the Committee on Homeland Security and applicant unlawfully disclosing information policies and procedures for adjudicating the ap- Government Affairs of the Senate; ‘‘(II) the Select Committee on Intelligence of specifically authorized under criteria estab- peals authorized by subparagraph (A). The Di- the Senate; lished by Executive Order, statute, Presidential rector of National Intelligence and Secretary of ‘‘(III) the Committee on Oversight and Gov- Directive, or Presidential memorandum to be Defense shall jointly approve any rules, regula- ernment Reform of the House of Representa- kept secret in the interest of national defense or tions, or guidance issued by the Board con- tives; and the conduct of foreign affairs. cerning the procedures for the use or handling of classified information. ‘‘(IV) the Permanent Select Committee on In- Nothing in this paragraph shall be construed to ‘‘(C) REVIEW.—The Board’s review shall be on telligence of the House of Representatives. authorize the withholding of information from the complete agency record, which shall be made ‘‘(ii) RECOMMENDATIONS.—If the agency head the Congress or the taking of any personnel ac- available to the Board. The Board may not hear and the head of the entity selected under sub- tion against an employee who discloses informa- witnesses or admit additional evidence. Any section (b) do not follow the Board’s rec- tion to the Congress. portions of the record that were submitted ex ommendation to reinstate a clearance, the head ‘‘(2) DISCLOSURES.—A disclosure shall not be parte during the agency proceedings shall be of the entity selected under subsection (b) shall excluded from paragraph (1) because— submitted ex parte to the Board. notify the chairpersons and ranking members of ‘‘(A) the disclosure was made during the nor- ‘‘(D) FURTHER FACT-FINDING OR IMPROPER DE- the committees described in subclauses (I) mal course of the duties of the employee; NIAL.—If the Board concludes that further fact- through (IV) of clause (i). ‘‘(B) the disclosure was made to a person, in- finding is necessary or finds that the agency im- ‘‘(5) JUDICIAL REVIEW.—Nothing in this sec- cluding a supervisor, who participated in an ac- properly denied the employee or former em- tion should be construed to permit or require ju- tivity that the employee or applicant reasonably ployee the opportunity to present evidence that, dicial review of agency or Board actions under believed to be covered by paragraph (1)(A)(ii); if admitted, would have a substantial likelihood this section. ‘‘(C) the disclosure revealed information that of altering the outcome, the Board shall— ‘‘(6) NONAPPLICABILITY TO CERTAIN TERMI- had been previously disclosed; ‘‘(i) remand the matter to the agency from NATIONS.—This section shall not apply to ad- ‘‘(D) of the employee or applicant’s motive for which it originated for additional proceedings in verse security clearance or access determina- making the disclosure; accordance with the rules of procedure issued tions if the affected employee is concurrently ‘‘(E) the disclosure was not made in writing; by the Board; or terminated under— ‘‘(F) the disclosure was made while the em- ‘‘(ii) refer the case to an intelligence commu- ‘‘(A) section 1609 of title 10, United States ployee was off duty; or nity agency for additional proceedings in ac- Code; ‘‘(G) of the amount of time which has passed cordance with the rules of procedure issued by ‘‘(B) the authority of the Director of National since the occurrence of the events described in the Board. Intelligence under section 102A(m) of the Na- the disclosure. ‘‘(E) DE NOVO DETERMINATION.—The Board tional Security Act of 1947 (50 U.S.C. 403–1(m)), ‘‘(3) AGENCY ADJUDICATION.— shall make a de novo determination, based on if— ‘‘(A) APPEAL.—An employee, former employee, the entire record, of whether the employee, ‘‘(i) the Director personally summarily termi- or applicant for employment who believes that former employee, or applicant received an ad- nates the individual; and he or she has been subjected to a reprisal pro- verse security clearance or access determination ‘‘(ii) the Director— hibited by paragraph (1) of this subsection may, in violation of paragraph (1). In considering the ‘‘(I) determines the termination to be in the within 60 days after the issuance of notice of record, the Board may weigh the evidence, judge interest of the United States; ‘‘(II) determines that the procedures pre- such decision, appeal that decision within the the credibility of witnesses, and determine con- scribed in other provisions of law that authorize agency of that employee, former employee, or troverted questions of fact. In doing so, the the termination of the employment of such em- applicant through proceedings authorized by Board may consider the prior fact-finder’s op- ployee cannot be invoked in a manner con- paragraph (8) of subsection (b), except that portunity to see and hear the witnesses. there shall be no appeal of an agency’s suspen- ‘‘(F) ADVERSE SECURITY CLEARANCE OR ACCESS sistent with the national security, and ‘‘(III) notifies the congressional oversight sion of a security clearance or access determina- DETERMINATION.—If the Board finds that the tion for purposes of conducting an investiga- adverse security clearance or access determina- committees of such termination within 5 days tion, if that suspension lasts no longer than 1 tion violated paragraph (1), it shall then sepa- after the termination; ‘‘(C) the authority of the Director of the Cen- year. rately determine whether reinstating the secu- tral Intelligence Agency under section 104A(e) of ‘‘(B) CORRECTIVE ACTION.—If, in the course of rity clearance or access determination is clearly the National Security Act of 1947 (50 U.S.C. 403– proceedings authorized under subparagraph consistent with the interests of national secu- 4a(e)), if— (A), it is determined that the adverse security rity, with any doubt resolved in favor of na- ‘‘(i) the Director personally summarily termi- clearance or access determination violated para- tional security, under Executive Order 12968 (in- nates the individual; and graph (1) of this subsection, the agency shall cluding any adjudicative guidelines promul- ‘‘(ii) the Director— take specific corrective action to return the em- gated under such orders) or any subsequent Ex- ‘‘(I) determines the termination to be in the ployee, former employee, or applicant, as nearly ecutive order, regulation, or policy concerning interest of the United States; as practicable and reasonable, to the position access to classified information. ‘‘(II) determines that the procedures pre- such employee, former employee, or applicant ‘‘(G) REMEDIES.— scribed in other provisions of law that authorize would have held had the violation not occurred. ‘‘(i) CORRECTIVE ACTION.—If the Board finds the termination of the employment of such em- Such corrective action shall include reasonable that the adverse security clearance or access de- ployee cannot be invoked in a manner con- attorney’s fees and any other reasonable costs termination violated paragraph (1), it shall sistent with the national security; and incurred, and may include back pay and related order the agency head to take specific corrective ‘‘(III) notifies the congressional oversight benefits, travel expenses, and compensatory action to return the employee, former employee, committees of such termination within 5 days damages not to exceed $300,000. or applicant, as nearly as practicable and rea- after the termination; or ‘‘(C) CONTRIBUTING FACTOR.—In determining sonable, to the position such employee, former ‘‘(D) section 7532 of title 5, United States whether the adverse security clearance or access employee, or applicant would have held had the Code, if— determination violated paragraph (1) of this violation not occurred. Such corrective action ‘‘(i) the agency head personally summarily subsection, the agency shall find that para- shall include reasonable attorney’s fees and any terminates the individual; and graph (1) of this subsection was violated if a dis- other reasonable costs incurred, and may in- ‘‘(ii) the agency head— closure described in paragraph (1) was a con- clude back pay and related benefits, travel ex- ‘‘(I) determines the termination to be in the tributing factor in the adverse security clear- penses, and compensatory damages not to ex- interest of the United States; ance or access determination taken against the ceed $300,000. The Board may recommend, but ‘‘(II) determines that the procedures pre- individual, unless the agency demonstrates by a may not order, reinstatement or hiring of a scribed in other provisions of law that authorize

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00088 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8817 the termination of the employment of such em- tions? Am I correct that this provision blower cases and provide additional ployee cannot be invoked in a manner con- does not in any way reduce or elimi- protections to intelligence community sistent with the national security; and nate current protections against retal- employees and officers of the Transpor- ‘‘(III) notifies the congressional oversight iatory investigations? tation Security Administration. It will committees of such termination within 5 days after the termination.’’. Mr. AKAKA. The Senator from Iowa also correct the Federal circuit court’s is correct. Remedies in S. 372 provide SEC. 203. REVISIONS RELATING TO THE INTEL- repeated misinterpretations of the LIGENCE COMMUNITY WHISTLE- relief for the consequences of prelimi- whistleblower law and suspend that BLOWER PROTECTION ACT. nary retaliatory investigations when court’s sole jurisdiction over Federal (a) IN GENERAL.—Section 8H of the Inspector an employee prevails in litigation employee whistleblower cases for 5 General Act of 1978 (5 U.S.C. App.) is amend- against a prohibited personnel prac- years. ed— tice. This provision does not in any Whistleblowers have proven to be im- (1) in subsection (b)— (A) by inserting ‘‘(1)’’ after ‘‘(b)’’; and way reduce or eliminate jurisdiction to portant catalysts for much needed gov- (B) by adding at the end the following: challenge a retaliatory investigation ernment change over the years. From ‘‘(2) If the head of an establishment deter- before a formal personnel action oc- corporate fraud to governmental mis- mines that a complaint or information trans- curs. conduct to media integrity, whistle- mitted under paragraph (1) would create a con- In legislative history for 1994 amend- blowers have played an integral role in flict of interest for the head of the establish- ments to the Whistleblower Protection galvanizing reform. In these difficult ment, the head of the establishment shall return Act, Representative McCloskey stated financial times, we must be especially the complaint or information to the Inspector that alleged harassment can be a General with that determination and the In- vigilant to ensure that public resources spector General shall make the transmission to threatened personnel action if it ‘‘is are not lost to waste, fraud, and abuse. the Chair of the Intelligence Community Whis- discriminatory, or could have a Restoring credibility to our whistle- tleblower Protection Board. In such a case, the chilling effect on merit system duties blower laws is an important part of requirements of this section for the head of the and responsibilities.’’ Congress specifi- that work. Before Congress adjourns, I establishment apply to the recipient of the In- cally included retaliatory investiga- hope the House of Representatives will spector General’s transmission. The Chair shall tions initiated because of protected ac- quickly consider this legislation, and consult with the other members of the Intel- tivity among the illustrations for send it to the President to be signed ligence Community Whistleblower Protection ‘‘threatened personnel actions,’’ be- Board regarding all transmissions under this into law. paragraph.’’; cause they can be ‘‘preludes or pre- Mrs. GILLIBRAND. I ask consent the (2) by designating subsection (h) as subsection conditions to’’ the entire list of formal committee-reported substitute amend- (i); and personnel actions in section 2302(a)(2) ment be considered, the Akaka amend- (3) by inserting after subsection (g), the fol- of title 5. Jurisdiction to challenge re- ment at the desk be agreed to and the lowing: taliatory investigations as threatened committee-reported substitute amend- ‘‘(h) An individual who has submitted a com- personnel actions has been upheld re- ment, as amended, be agreed to, and plaint or information to an inspector general peatedly. The Office of Special Counsel under this section may notify any member of the bill as amended be read a third Congress or congressional staff member of the also has used this authority to avoid time and passed, the motions to recon- fact that such individual has made a submission the need for prolonged, costly litiga- sider be laid upon the table with no in- to that particular inspector general, and of the tion while employees are off the job tervening action or debate, and any date on which such submission was made.’’. from subsequent termination. statements be printed in the RECORD. (b) CENTRAL INTELLIGENCE AGENCY.—Section Mr. LEAHY. Mr. President, today, The PRESIDING OFFICER. Without 17(d)(5) of the Central Intelligence Agency Act the Senate will finally pass the bipar- objection, it is so ordered. of 1949 (50 U.S.C. 403q) is amended— tisan Whistleblower Protection En- The amendment (No. 4760, in the na- (1) in subparagraph (B)— hancement Act of 2010, S. 372. I thank (A) by inserting ‘‘(i)’’ after ‘‘(B)’’; and ture of a substitute, was agreed to. (B) by adding at the end the following: Senator AKAKA and Senator COLLINS (The amendment is printed in today’s ‘‘(ii) If the Director determines that a com- for their dedication to this legislation RECORD under ‘‘Text of Amendments.’’) plaint or information transmitted under para- and for working with me and Senator The committee amendment in the graph (1) would create a conflict of interest for GRASSLEY on key changes to make the nature of a substitute, as amended, was the Director, the Director shall return the com- bill even stronger in its protection of agreed to. plaint or information to the Inspector General whistleblowers. I have worked for years The bill (S. 372), as amended, was or- with that determination and the Inspector Gen- to protect whistleblowers from retalia- dered to be engrossed for a third read- eral shall make the transmission to the Chair of tion, whether by government or cor- the Intelligence Community Whistleblower Pro- ing, was read the third time, and tection Board. In such a case— porate employers, and this bill is an passed, as follows: ‘‘(I) the requirements of this subsection for the important step forward in that ongoing S. 372 Director apply to the recipient of the Inspector process. Be it enacted by the Senate and House of Rep- General’s submission; and Whistleblowers are instrumental in resentatives of the United States of America in ‘‘(II) the Chairperson shall consult with the alerting the public and Congress to Congress assembled, other members of the Intelligence Community wrongdoing in Federal agencies. In SECTION 1. SHORT TITLE. Whistleblower Protection Board regarding all many cases, their willingness to step This Act may be cited as the ‘‘Whistle- submissions under this section.’’; and forward has resulted in important gov- blower Protection Enhancement Act of (2) by adding at the end the following: 2010’’. ‘‘(H) An individual who has submitted a com- ernmental reform, and has even saved plaint or information to the Inspector General lives. Congress must encourage Federal TITLE I—PROTECTION OF CERTAIN DIS- under this section may notify any member of employees with reasonable beliefs CLOSURES OF INFORMATION BY FED- Congress or congressional staff member of the about government misconduct to re- ERAL EMPLOYEES fact that such individual has made a submission port such fraud or abuse by offering SEC. 101. CLARIFICATION OF DISCLOSURES COV- to the Inspector General, and of the date on meaningful protection to those who ERED. which such submission was made.’’. blow the whistle, rather than leaving (a) IN GENERAL.—Section 2302(b)(8) of title TITLE III—EFFECTIVE DATE 5, United States Code, is amended— them vulnerable to reprisals. (1) in subparagraph (A)(i)— SEC. 301. EFFECTIVE DATE. Unfortunately, whistleblower laws (A) by striking ‘‘a violation’’ and inserting This Act shall take effect 30 days after the have been weakened by many court de- ‘‘any violation’’; and date of enactment of this Act. cisions that have ignored congressional (B) by adding ‘‘except for an alleged viola- RETALIATORY INVESTIGATION PROVISIONS intent and eroded employee protec- tion that is a minor, inadvertent violation, Mr. GRASSLEY. Mr. President, the tions. The Whistleblower Protection and occurs during the conscientious carrying Whistleblower Protection Enhance- Enhancement Act will help restore and out of official duties,’’ after ‘‘regulation,’’; ment Act, S. 372, will strengthen and expand the protections for Federal em- and modernize protections for Federal (2) in subparagraph (B)(i)— ployees envisioned by the original (A) by striking ‘‘a violation’’ and inserting whistleblowers. May I ask the Senator Whistleblower Protection Act of 1989. ‘‘any violation (other than a violation of this from Hawaii to clarify the intent of the Key provisions of the Whistleblower section)’’; and provision providing relief for the con- Protection Enhancement Act will offer (B) by adding ‘‘except for an alleged viola- sequences of retaliatory investiga- additional methods to appeal whistle- tion that is a minor, inadvertent violation,

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and occurs during the conscientious carrying tial and specific danger to public health or (2) NONDISCLOSURE POLICY, FORM, OR AGREE- out of official duties,’’ after regulation,’’. safety.’’. MENT IN EFFECT BEFORE THE DATE OF ENACT- (b) PROHIBITED PERSONNEL PRACTICES SEC. 103. REBUTTABLE PRESUMPTION. MENT.—A nondisclosure policy, form, or UNDER SECTION 2302(b)(9).— Section 2302(b) of title 5, United States agreement that was in effect before the date (1) TECHNICAL AND CONFORMING AMEND- Code, is amended by amending the matter of enactment of this Act, but that does not MENTS.—Title 5, United States Code, is following paragraph (12) to read as follows: contain the statement required under sec- amended in subsections (a)(3), (b)(4)(A), and ‘‘This subsection shall not be construed to tion 2302(b)(13) of title 5, United States Code, (b)(4)(B)(i) of section 1214, in subsections (a), authorize the withholding of information (as added by this Act) for implementation or (e)(1), and (i) of section 1221, and in sub- from Congress or the taking of any personnel enforcement— section (a)(2)(C)(i) of section 2302, by insert- action against an employee who discloses in- (A) may be enforced with regard to a cur- ing ‘‘or section 2302(b)(9) (A)(i), (B), (C), or formation to Congress. For purposes of para- rent employee if the agency gives such em- (D)’’ after ‘‘section 2302(b)(8)’’ or ‘‘(b)(8)’’ graph (8), any presumption relating to the ployee notice of the statement; and each place it appears. performance of a duty by an employee whose (B) may continue to be enforced after the (2) OTHER REFERENCES.—(A) Title 5, United conduct is the subject of a disclosure as de- effective date of this Act with regard to a States Code, is amended in subsection fined under subsection (a)(2)(D) may be re- former employee if the agency posts notice (b)(4)(B)(i) of section 1214 and in subsection butted by substantial evidence. For purposes of the statement on the agency website for (e)(1) of section 1221, by inserting ‘‘or pro- of paragraph (8), a determination as to the 1-year period following that effective tected activity’’ after ‘‘disclosure’’ each whether an employee or applicant reason- date. place it appears. ably believes that such employee or appli- (c) RETALIATORY INVESTIGATIONS.— (B) Section 2302(b)(9) of title 5, United cant has disclosed information that evi- (1) AGENCY INVESTIGATION.—Section 1214 of States Code, is amended— dences any violation of law, rule, regulation, title 5, United States Code, is amended by (i) by striking subparagraph (A)and insert- gross mismanagement, a gross waste of adding at the end the following: ing the following: funds, an abuse of authority, or a substantial ‘‘(h) Any corrective action ordered under ‘‘(A) the exercise of any appeal, complaint, and specific danger to public health or safety this section to correct a prohibited personnel or grievance right granted by any law, rule, shall be made by determining whether a dis- practice may include fees, costs, or damages or regulation— interested observer with knowledge of the es- reasonably incurred due to an agency inves- ‘‘(i) with regard to remedying a violation sential facts known to and readily ascertain- tigation of the employee, if such investiga- of paragraph (8); or able by the employee could reasonably con- tion was commenced, expanded, or extended ‘‘(ii) with regard to remedying a violation clude that the actions of the Government in retaliation for the disclosure or protected of any other law, rule, or regulation;’’; and evidence such violations, mismanagement, activity that formed the basis of the correc- (ii) in subparagraph (B), by inserting ‘‘(i) waste, abuse, or danger.’’. tive action.’’. or (ii)’’ after ‘‘subparagraph (A)’’. SEC. 104. PERSONNEL ACTIONS AND PROHIBITED (2) DAMAGES.—Section 1221(g) of title 5, (C) Section 2302 of title 5, United States PERSONNEL PRACTICES. United States Code, is amended by adding at Code, is amended by adding at the end the (a) PERSONNEL ACTION.—Section the end the following: following: 2302(a)(2)(A) of title 5, United States Code, is ‘‘(4) Any corrective action ordered under ‘‘(f)(1) A disclosure shall not be excluded amended— this section to correct a prohibited personnel from subsection (b)(8) because— (1) in clause (x), by striking ‘‘and’’ after practice may include fees, costs, or damages ‘‘(A) the disclosure was made to a person, the semicolon; and reasonably incurred due to an agency inves- including a supervisor, who participated in (2) by redesignating clause (xi) as clause tigation of the employee, if such investiga- an activity that the employee or applicant (xii) and inserting after clause (x) the fol- tion was commenced, expanded, or extended reasonably believed to be covered by sub- lowing: in retaliation for the disclosure or protected section (b)(8)(A)(ii); ‘‘(xi) the implementation or enforcement activity that formed the basis of the correc- ‘‘(B) the disclosure revealed information of any nondisclosure policy, form, or agree- tive action.’’. that had been previously disclosed; ment; and’’. ‘‘(C) of the employee’s or applicant’s mo- SEC. 105. EXCLUSION OF AGENCIES BY THE (b) PROHIBITED PERSONNEL PRACTICE.— PRESIDENT. tive for making the disclosure; (1) IN GENERAL.—Section 2302(b) of title 5, Section 2302(a)(2)(C) of title 5, United ‘‘(D) the disclosure was not made in writ- United States Code, is amended— States Code, is amended by striking clause ing; (A) in paragraph (11), by striking ‘‘or’’ at (ii) and inserting the following: ‘‘(E) the disclosure was made while the em- the end; ‘‘(ii)(I) the Federal Bureau of Investiga- ployee was off duty; or (B) in paragraph (12), by striking the pe- tion, the Central Intelligence Agency, the ‘‘(F) of the amount of time which has riod and inserting ‘‘; or’’; and Defense Intelligence Agency, the National passed since the occurrence of the events de- (C) by inserting after paragraph (12) the Geospatial-Intelligence Agency, the National scribed in the disclosure. following: Security Agency, the Office of the Director ‘‘(2) If a disclosure is made during the nor- ‘‘(13) implement or enforce any nondisclo- of National Intelligence, and the National mal course of duties of an employee, the dis- sure policy, form, or agreement, if such pol- Reconnaissance Office; and closure shall not be excluded from sub- icy, form, or agreement does not contain the ‘‘(II) as determined by the President, any section (b)(8) if any employee who has au- following statement: ‘These provisions are executive agency or unit thereof the prin- thority to take, direct others to take, rec- consistent with and do not supersede, con- cipal function of which is the conduct of for- ommend, or approve any personnel action flict with, or otherwise alter the employee eign intelligence or counterintelligence ac- with respect to the employee making the dis- obligations, rights, or liabilities created by tivities, provided that the determination be closure, took, failed to take, or threatened Executive Order 13526 (75 Fed. Reg. 707; relat- made prior to a personnel action; or’’. to take or fail to take a personnel action ing to classified national security informa- with respect to that employee in reprisal for tion), or any successor thereto; Executive SEC. 106. DISCIPLINARY ACTION. the disclosure.’’. Order 12968 (60 Fed. Reg. 40245; relating to ac- Section 1215(a)(3) of title 5, United States SEC. 102. DEFINITIONAL AMENDMENTS. cess to classified information), or any suc- Code, is amended to read as follows: Section 2302(a)(2) of title 5, United States cessor thereto; section 7211 of title 5, United ‘‘(3)(A) A final order of the Board may im- Code, is amended— States Code (governing disclosures to Con- pose— (1) in subparagraph (B)(ii), by striking gress); section 1034 of title 10, United States ‘‘(i) disciplinary action consisting of re- ‘‘and’’ at the end; Code (governing disclosure to Congress by moval, reduction in grade, debarment from (2) in subparagraph (C)(iii), by striking the members of the military); section 2302(b)(8) Federal employment for a period not to ex- period at the end and inserting ‘‘; and’’; and of title 5, United States Code (governing dis- ceed 5 years, suspension, or reprimand; (3) by adding at the end the following: closures of illegality, waste, fraud, abuse, or ‘‘(ii) an assessment of a civil penalty not to ‘‘(D) ‘disclosure’ means a formal or infor- public health or safety threats); the Intel- exceed $1,000; or mal communication or transmission, but ligence Identities Protection Act of 1982 (50 ‘‘(iii) any combination of disciplinary ac- does not include a communication con- U.S.C. 421 et seq.) (governing disclosures that tions described under clause (i) and an as- cerning policy decisions that lawfully exer- could expose confidential Government sessment described under clause (ii). cise discretionary authority unless the em- agents); and the statutes which protect ‘‘(B) In any case brought under paragraph ployee or applicant providing the disclosure against disclosures that could compromise (1) in which the Board finds that an em- reasonably believes that the disclosure evi- national security, including sections 641, 793, ployee has committed a prohibited personnel dences— 794, 798, and 952 of title 18, United States practice under section 2302(b)(8), or 2302(b)(9) ‘‘(i) any violation of any law, rule, or regu- Code, and section 4(b) of the Subversive Ac- (A)(i), (B), (C), or (D), the Board may impose lation, except for an alleged violation that is tivities Control Act of 1950 (50 U.S.C. 783(b)). disciplinary action if the Board finds that a minor, inadvertent violation, and occurs The definitions, requirements, obligations, the activity protected under section during the conscientious carrying out of offi- rights, sanctions, and liabilities created by 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) cial duties; or such Executive order and such statutory pro- was a significant motivating factor, even if ‘‘(ii) gross mismanagement, a gross waste visions are incorporated into this agreement other factors also motivated the decision, for of funds, an abuse of authority, or a substan- and are controlling.’ ’’. the employee’s decision to take, fail to take,

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00090 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8819 or threaten to take or fail to take a per- graph shall apply to any review obtained by (1) the term ‘‘agency’’ has the meaning sonnel action, unless that employee dem- the Director of the Office of Personnel Man- given under section 2302(a)(2)(C) of title 5, onstrates, by preponderance of evidence, agement that raises no challenge to the United States Code; that the employee would have taken, failed Board’s disposition of allegations of a pro- (2) the term ‘‘applicant’’ means an appli- to take, or threatened to take or fail to take hibited personnel practice described in sec- cant for a covered position; the same personnel action, in the absence of tion 2302(b) other than practices described in (3) the term ‘‘censorship related to re- such protected activity.’’. section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), search, analysis, or technical information’’ SEC. 107. REMEDIES. or (D). The Director of the Office of Per- means any effort to distort, misrepresent, or sonnel Management may obtain review of (a) ATTORNEY FEES.—Section 1204(m)(1) of suppress research, analysis, or technical in- title 5, United States Code, is amended by any final order or decision of the Board by formation; filing, within 60 days after the Board issues striking ‘‘agency involved’’ and inserting (4) the term ‘‘covered position’’ has the notice of the final order or decision of the ‘‘agency where the prevailing party was em- meaning given under section 2302(a)(2)(B) of Board, a petition for judicial review in the ployed or had applied for employment at the title 5, United States Code; United States Court of Appeals for the Fed- time of the events giving rise to the case’’. (5) the term ‘‘employee’’ means an em- eral Circuit or any court of appeals of com- (b) DAMAGES.—Sections 1214(g)(2) and ployee in a covered position in an agency; petent jurisdiction as provided under sub- and 1221(g)(1)(A)(ii) of title 5, United States Code, section (b)(2) if the Director determines, in are amended by striking all after ‘‘travel ex- (6) the term ‘‘disclosure’’ has the meaning the discretion of the Director, that the given under section 2302(a)(2)(D) of title 5, penses,’’ and inserting ‘‘any other reasonable Board erred in interpreting a civil service and foreseeable consequential damages, and United States Code. law, rule, or regulation affecting personnel (b) PROTECTED DISCLOSURE.— compensatory damages (including interest, management and that the Board’s decision (1) IN GENERAL.—Any disclosure of informa- reasonable expert witness fees, and costs).’’ will have a substantial impact on a civil tion by an employee or applicant for employ- each place it appears. service law, rule, regulation, or policy direc- ment that the employee or applicant reason- SEC. 108. JUDICIAL REVIEW. tive. If the Director did not intervene in a ably believes is evidence of censorship re- (a) IN GENERAL.—Section 7703(b) of title 5, matter before the Board, the Director may lated to research, analysis, or technical in- United States Code, is amended by striking not petition for review of a Board decision formation— the matter preceding paragraph (2) and in- under this section unless the Director first (A) shall come within the protections of serting the following: petitions the Board for a reconsideration of section 2302(b)(8)(A) of title 5, United States ‘‘(b)(1)(A) Except as provided in subpara- its decision, and such petition is denied. In Code, if— graph (B) and paragraph (2) of this sub- addition to the named respondent, the Board (i) the employee or applicant reasonably section, a petition to review a final order or and all other parties to the proceedings be- believes that the censorship related to re- final decision of the Board shall be filed in fore the Board shall have the right to appear search, analysis, or technical information is the United States Court of Appeals for the in the proceeding before the court of appeals. or will cause— Federal Circuit. Notwithstanding any other The granting of the petition for judicial re- (I) any violation of law, rule, or regulation, provision of law, any petition for review view shall be at the discretion of the court of except for an alleged violation that is a shall be filed within 60 days after the Board appeals.’’. minor, inadvertent violation, and occurs dur- issues notice of the final order or decision of SEC. 109. PROHIBITED PERSONNEL PRACTICES ing the conscientious carrying out of official the Board. AFFECTING THE TRANSPORTATION SECURITY ADMINISTRATION. duties; or ‘‘(B) During the 5-year period beginning on (II) gross mismanagement, a gross waste of the effective date of the Whistleblower Pro- (a) IN GENERAL.—Chapter 23 of title 5, United States Code, is amended— funds, an abuse of authority, or a substantial tection Enhancement Act of 2010, a petition (1) by redesignating sections 2304 and 2305 and specific danger to public health or safe- to review a final order or final decision of as sections 2305 and 2306, respectively; and ty; and the Board that raises no challenge to the (2) by inserting after section 2303 the fol- (ii) such disclosure is not specifically pro- Board’s disposition of allegations of a pro- lowing: hibited by law or such information is not hibited personnel practice described in sec- specifically required by Executive order to ‘‘§ 2304. Prohibited personnel practices affect- tion 2302(b) other than practices described in be kept classified in the interest of national ing the Transportation Security Adminis- section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), defense or the conduct of foreign affairs; and tration or (D) shall be filed in the United States (B) shall come within the protections of Court of Appeals for the Federal Circuit or ‘‘(a) IN GENERAL.—Notwithstanding any section 2302(b)(8)(B) of title 5, United States other provision of law, any individual hold- any court of appeals of competent jurisdic- Code, if— ing or applying for a position within the tion as provided under paragraph (2).’’. (i) the employee or applicant reasonably Transportation Security Administration (b) REVIEW OBTAINED BY OFFICE OF PER- believes that the censorship related to re- shall be covered by— SONNEL MANAGEMENT.—Section 7703(d) of search, analysis, or technical information is ‘‘(1) the provisions of section 2302(b) (1), (8), title 5, United States Code, is amended to or will cause— read as follows: and (9); ‘‘(2) any provision of law implementing (I) any violation of law, rule, or regulation, ‘‘(d)(1) Except as provided under paragraph except for an alleged violation that is a (2), this paragraph shall apply to any review section 2302(b) (1), (8), or (9) by providing any right or remedy available to an employee or minor, inadvertent violation, and occurs dur- obtained by the Director of the Office of Per- ing the conscientious carrying out of official sonnel Management. The Director of the Of- applicant for employment in the civil serv- ice; and duties; or fice of Personnel Management may obtain (II) gross mismanagement, a gross waste of review of any final order or decision of the ‘‘(3) any rule or regulation prescribed under any provision of law referred to in funds, an abuse of authority, or a substantial Board by filing, within 60 days after the and specific danger to public health or safe- Board issues notice of the final order or deci- paragraph (1) or (2). ‘‘(b) RULE OF CONSTRUCTION.—Nothing in ty; and sion of the Board, a petition for judicial re- this section shall be construed to affect any (ii) the disclosure is made to the Special view in the United States Court of Appeals rights, apart from those described in sub- Counsel, or to the Inspector General of an for the Federal Circuit if the Director deter- section (a), to which an individual described agency or another person designated by the mines, in the discretion of the Director, that in subsection (a) might otherwise be entitled head of the agency to receive such disclo- the Board erred in interpreting a civil serv- under law.’’. sures, consistent with the protection of ice law, rule, or regulation affecting per- (b) TECHNICAL AND CONFORMING AMEND- sources and methods. sonnel management and that the Board’s de- MENT.—The table of sections for chapter 23 of (2) DISCLOSURES NOT EXCLUDED.—A disclo- cision will have a substantial impact on a title 5, United States Code, is amended by sure shall not be excluded from paragraph (1) civil service law, rule, regulation, or policy striking the items relating to sections 2304 for any reason described under section directive. If the Director did not intervene in and 2305, respectively, and by inserting the 2302(f)(1) or (2) of title 5, United States Code. a matter before the Board, the Director may following: (3) RULE OF CONSTRUCTION.—Nothing in this not petition for review of a Board decision ‘‘2304. Prohibited personnel practices affect- section shall be construed to imply any limi- under this section unless the Director first ing the Transportation Secu- tation on the protections of employees and petitions the Board for a reconsideration of rity Administration. applicants afforded by any other provision of its decision, and such petition is denied. In ‘‘2305. Responsibility of the Government Ac- law, including protections with respect to addition to the named respondent, the Board countability Office. any disclosure of information believed to be and all other parties to the proceedings be- ‘‘2306. Coordination with certain other provi- evidence of censorship related to research, fore the Board shall have the right to appear sions of law.’’. analysis, or technical information. in the proceeding before the Court of Ap- (c) EFFECTIVE DATE.—The amendments SEC. 111. CLARIFICATION OF WHISTLEBLOWER peals. The granting of the petition for judi- made by this section shall take effect on the RIGHTS FOR CRITICAL INFRASTRUC- cial review shall be at the discretion of the date of enactment of this section. TURE INFORMATION. Court of Appeals. SEC. 110. DISCLOSURE OF CENSORSHIP RELATED Section 214(c) of the Homeland Security ‘‘(2) During the 5-year period beginning on TO RESEARCH, ANALYSIS, OR TECH- Act of 2002 (6 U.S.C. 133(c)) is amended by the effective date of the Whistleblower Pro- NICAL INFORMATION. adding at the end the following: ‘‘For pur- tection Enhancement Act of 2010, this para- (a) DEFINITIONS.—In this subsection— poses of this section a permissible use of

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00091 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8820 CONGRESSIONAL RECORD — SENATE December 10, 2010 independently obtained information includes graph (1) that does not contain the state- (B) The number of such cases filed in the the disclosure of such information under sec- ment required under paragraph (1) may not regional and field offices, the number of peti- tion 2302(b)(8) of title 5, United States be implemented or enforced to the extent tions for review filed in such cases, and the Code.’’. such policy, form, or agreement is incon- outcomes of such cases. SEC. 112. ADVISING EMPLOYEES OF RIGHTS. sistent with that statement. (2) FIRST REPORT.—The first report de- Section 2302(c) of title 5, United States (B) NONDISCLOSURE POLICY, FORM, OR scribed under paragraph (1) submitted after Code, is amended by inserting ‘‘, including AGREEMENT IN EFFECT BEFORE THE DATE OF the date of enactment of this Act shall in- how to make a lawful disclosure of informa- ENACTMENT.—A nondisclosure policy, form, clude an addendum required under that sub- tion that is specifically required by law or or agreement that was in effect before the paragraph that covers the period beginning Executive order to be kept classified in the date of enactment of this Act, but that does on January 1, 2009 through the end of the fis- interest of national defense or the conduct of not contain the statement required under cal year 2009. foreign affairs to the Special Counsel, the In- paragraph (1)— SEC. 117. ALTERNATIVE REVIEW. spector General of an agency, Congress, or (i) may be enforced with regard to a cur- (a) IN GENERAL.—Section 1221 of title 5, other agency employee designated to receive rent employee if the agency gives such em- United States Code, is amended by adding at such disclosures’’ after ‘‘chapter 12 of this ployee notice of the statement; and the end the following: title’’. (ii) may continue to be enforced after the ‘‘(k)(1) In this subsection, the term ‘appro- SEC. 113. SPECIAL COUNSEL AMICUS CURIAE AP- effective date of this Act with regard to a priate United States district court’, as used PEARANCE. former employee if the agency posts notice with respect to an alleged prohibited per- Section 1212 of title 5, United States Code, of the statement on the agency website for sonnel practice, means the United States dis- is amended by adding at the end the fol- the 1-year period following that effective trict court for the judicial district in lowing: date. ‘‘(h)(1) The Special Counsel is authorized which— (b) PERSONS OTHER THAN GOVERNMENT EM- ‘‘(A) the prohibited personnel practice is to appear as amicus curiae in any action PLOYEES.—Notwithstanding subsection (a), a brought in a court of the United States re- alleged to have been committed; or nondisclosure policy, form, or agreement ‘‘(B) the employee, former employee, or ap- lated to any civil action brought in connec- that is to be executed by a person connected tion with section 2302(b) (8) or (9), or as oth- plicant for employment allegedly affected by with the conduct of an intelligence or intel- such practice resides. erwise authorized by law. In any such action, ligence-related activity, other than an em- the Special Counsel is authorized to present ‘‘(2)(A) An employee, former employee, or ployee or officer of the United States Gov- applicant for employment in any case to the views of the Special Counsel with respect ernment, may contain provisions appropriate to compliance with section 2302(b) (8) or (9) which paragraph (3) or (4) applies may file an to the particular activity for which such doc- action at law or equity for de novo review in and the impact court decisions would have ument is to be used. Such policy, form, or on the enforcement of such provisions of law. the appropriate United States district court agreement shall, at a minimum, require that ‘‘(2) A court of the United States shall in accordance with this subsection. the person will not disclose any classified in- grant the application of the Special Counsel ‘‘(B) Upon initiation of any action under to appear in any such action for the purposes formation received in the course of such ac- subparagraph (A), the Board shall stay any described under subsection (a).’’. tivity unless specifically authorized to do so other claims of such employee, former em- by the United States Government. Such non- SEC. 114. SCOPE OF DUE PROCESS. ployee, or applicant pending before the disclosure policy, form, or agreement shall (a) SPECIAL COUNSEL.—Section Board at that time which arise out of the also make it clear that such forms do not bar 1214(b)(4)(B)(ii) of title 5, United States Code, same set of operative facts. Such claims disclosures to Congress or to an authorized is amended by inserting ‘‘, after a finding shall be stayed pending completion of the ac- that a protected disclosure was a contrib- official of an executive agency or the Depart- tion filed under subparagraph (A) before the uting factor,’’ after ‘‘ordered if’’. ment of Justice that are essential to report- appropriate United States district court and (b) INDIVIDUAL ACTION.—Section 1221(e)(2) ing a substantial violation of law, consistent any associated appellate review. of title 5, United States Code, is amended by with the protection of sources and methods. ‘‘(3) This paragraph applies in any case in inserting ‘‘, after a finding that a protected SEC. 116. REPORTING REQUIREMENTS. which— disclosure was a contributing factor,’’ after (a) GOVERNMENT ACCOUNTABILITY OFFICE.— ‘‘(A) an employee, former employee, or ap- ‘‘ordered if’’. (1) REPORT.—Not later than 40 months plicant for employment— SEC. 115. NONDISCLOSURE POLICIES, FORMS, after the date of enactment of this Act, the ‘‘(i) seeks corrective action from the Merit AND AGREEMENTS. Comptroller General shall submit a report to Systems Protection Board under section (a) IN GENERAL.— the Committee on Homeland Security and 1221(a) based on an alleged prohibited per- (1) REQUIREMENT.—Each agreement in Governmental Affairs of the Senate and the sonnel practice described in section 2302(b) Standard Forms 312 and 4414 of the Govern- Committee on Oversight and Government (8) or (9) (A)(i), (B), (C), or (D) for which the ment and any other nondisclosure policy, Reform of the House of Representatives on associated personnel action is an action cov- form, or agreement of the Government shall the implementation of this title. ered under section 7512 or 7542; or contain the following statement: ‘‘These re- (2) CONTENTS.—The report under this para- ‘‘(ii) files an appeal under section 7701(a) strictions are consistent with and do not su- graph shall include— alleging as an affirmative defense the com- persede, conflict with, or otherwise alter the (A) an analysis of any changes in the num- mission of a prohibited personnel practice employee obligations, rights, or liabilities ber of cases filed with the United States described in section 2302(b) (8) or (9) (A)(i), created by Executive Order 13526 (75 Fed. Merit Systems Protection Board alleging (B), (C), or (D) for which the associated per- Reg. 707; relating to classified national secu- violations of section 2302(b) (8) or (9) of title sonnel action is an action covered under sec- rity information), or any successor thereto; 5, United States Code, since the effective tion 7512 or 7542; Executive Order 12968 (60 Fed. Reg. 40245; re- date of this Act; ‘‘(B) no final order or decision is issued by lating to access to classified information), or (B) the outcome of the cases described the Board within 270 days after the date on any successor thereto; section 7211 of title 5, under subparagraph (A), including whether which a request for that corrective action or United States Code (governing disclosures to or not the United States Merit Systems Pro- appeal has been duly submitted, unless the Congress); section 1034 of title 10, United tection Board, the Federal Circuit Court of Board determines that the employee, former States Code (governing disclosure to Con- Appeals, or any other court determined the employee, or applicant for employment en- gress by members of the military); section allegations to be frivolous or malicious; gaged in conduct intended to delay the 2302(b)(8) of title 5, United States Code (gov- (C) an analysis of the outcome of cases de- issuance of a final order or decision by the erning disclosures of illegality, waste, fraud, scribed under subparagraph (A) that were de- Board; and abuse, or public health or safety threats); cided by a United States District Court and ‘‘(C) such employee, former employee, or the Intelligence Identities Protection Act of the impact the process has on the Merit Sys- applicant provides written notice to the 1982 (50 U.S.C. 421 et seq.) (governing disclo- tems Protection Board and the Federal court Board of filing an action under this sub- sures that could expose confidential Govern- system; and section before the filing of that action. ment agents); and the statutes which protect (D) any other matter as determined by the ‘‘(4) This paragraph applies in any case in against disclosure that may compromise the Comptroller General. which— national security, including sections 641, 793, (b) MERIT SYSTEMS PROTECTION BOARD.— ‘‘(A) an employee, former employee, or ap- 794, 798, and 952 of title 18, United States (1) IN GENERAL.—Each report submitted an- plicant for employment — Code, and section 4(b) of the Subversive Ac- nually by the Merit Systems Protection ‘‘(i) seeks corrective action from the Merit tivities Act of 1950 (50 U.S.C. 783(b)). The Board under section 1116 of title 31, United Systems Protection Board under section definitions, requirements, obligations, States Code, shall, with respect to the period 1221(a) based on an alleged prohibited per- rights, sanctions, and liabilities created by covered by such report, include as an adden- sonnel practice described in section 2302(b) such Executive order and such statutory pro- dum the following: (8) or (9) (A)(i), (B), (C), or (D) for which the visions are incorporated into this agreement (A) Information relating to the outcome of associated personnel action is an action cov- and are controlling.’’. cases decided during the applicable year of ered under section 7512 or 7542; or (2) ENFORCEABILITY.— the report in which violations of section ‘‘(ii) files an appeal under section 7701(a)(1) (A) IN GENERAL.—Any nondisclosure policy, 2302(b) (8) or (9) (A)(i), (B)(i), (C), or (D) of alleging as an affirmative defense the com- form, or agreement described under para- title 5, United States Code, were alleged. mission of a prohibited personnel practice

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00092 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8821 described in section 2302(b) (8) or (9) (A)(i), ‘‘(A) the district court shall have jurisdic- (2) in subparagraph (B), by adding ‘‘or’’ (B), (C), or (D) for which the associated per- tion without regard to the amount in con- after the semicolon; and sonnel action is an action covered under sec- troversy; (3) by adding at the end the following: tion 7512 or 7542; ‘‘(B) at the request of either party, such ‘‘(C) any communication that complies ‘‘(B)(i) within 30 days after the date on action shall be tried by the court with a with subsection (a)(1), (d), or (h) of section which the request for corrective action or jury; 8H of the Inspector General Act of 1978 (5 appeal was duly submitted, such employee, ‘‘(C) the court— U.S.C. App);’’. former employee, or applicant for employ- ‘‘(i) subject to clause (iii), shall apply the (b) INSPECTOR GENERAL ACT OF 1978.—Sec- ment files a motion requesting a certifi- standards set forth in subsection (e); and tion 8H of the Inspector General Act of 1978 cation consistent with subparagraph (C) to ‘‘(ii) may award any relief which the court (5 U.S.C. App) is amended— the Board, any administrative law judge ap- considers appropriate under subsection (g), (1) in subsection (a)(1), by adding at the pointed by the Board under section 3105 of except— end the following: this title and assigned to the case, or any ‘‘(I) relief for compensatory damages may ‘‘(D) An employee of any agency, as that employee of the Board designated by the not exceed $300,000; and term is defined under section 2302(a)(2)(C) of Board and assigned to the case; and ‘‘(II) relief may not include punitive dam- title 5, United States Code, who intends to ‘‘(ii) such employee has not previously ages; and report to Congress a complaint or informa- filed a motion under clause (i) related to ‘‘(iii) notwithstanding subsection (e)(2), tion with respect to an urgent concern may that request for corrective action; and may not order relief if the agency dem- report the complaint or information to the ‘‘(C) the Board, any administrative law onstrates by a preponderance of the evidence Inspector General (or designee) of the agency judge appointed by the Board under section that the agency would have taken the same of which that employee is employed.’’; 3105 of this title and assigned to the case, or personnel action in the absence of such dis- (2) in subsection (c), by striking ‘‘intel- any employee of the Board designated by the closure; and ligence committees’’ and inserting ‘‘appro- Board and assigned to the case certifies ‘‘(D) the Special Counsel may not rep- priate committees’’; that— resent the employee, former employee, or ap- (3) in subsection (d)— ‘‘(i) under standard applicable to the re- plicant for employment. (A) in paragraph (1), by striking ‘‘either or view of motions to dismiss under rule 12(b)(6) ‘‘(8) An appeal from a final decision of a both of the intelligence committees’’ and in- of the Federal Rules of Civil Procedure, in- district court in an action under this sub- serting ‘‘any of the appropriate commit- cluding rule 12(d), the request for corrective section shall be taken to the Court of Ap- tees’’; and action (including any allegations made with peals for the Federal Circuit or any court of (B) in paragraphs (2) and (3), by striking the motion under subparagraph (B)) would appeals of competent jurisdiction. ‘‘intelligence committees’’ each place that ‘‘(9) This subsection applies with respect to not be subject to dismissal; and term appears and inserting ‘‘appropriate any appeal, petition, or other request for ‘‘(ii)(I) the Board is not likely to dispose of committees’’; corrective action duly submitted to the the case within 270 days after the date on (4) in subsection (h)— Board, whether under section 1214(b)(2), the which a request for that corrective action (A) in paragraph (1)— preceding provisions of this section, section has been duly submitted; or (i) in subparagraph (A), by striking ‘‘intel- 7513(d), section 7701, or any otherwise appli- ‘‘(II) the case— ligence’’; and cable provisions of law, rule, or regulation.’’. ‘‘(aa) consists of multiple claims; (b) SUNSET.— (ii) in subparagraph (B), by inserting ‘‘or ‘‘(bb) requires complex or extensive dis- (1) IN GENERAL.—Except as provided under an activity involving classified information’’ covery; paragraph (2), the amendments made by this after ‘‘an intelligence activity’’; and ‘‘(cc) arises out of the same set of opera- section shall cease to have effect 5 years (B) by striking paragraph (2), and inserting tive facts as any civil action against the after the effective date of this Act. the following: Government filed by the employee, former (2) PENDING CLAIMS.—The amendments ‘‘(2) The term ‘appropriate committees’ employee, or applicant pending in a Federal made by this section shall continue to apply means the Permanent Select Committee on court; or with respect to any claim pending before the Intelligence of the House of Representatives ‘‘(dd) involves a novel question of law. Board on the last day of the 5-year period de- and the Select Committee on Intelligence of ‘‘(5) The Board shall grant or deny any mo- scribed under paragraph (1). the Senate, except that with respect to dis- tion requesting a certification described closures made by employees described in SEC. 118. MERIT SYSTEMS PROTECTION BOARD under paragraph (4)(ii) within 90 days after SUMMARY JUDGMENT. subsection (a)(1)(D), the term ‘appropriate the submission of such motion and the Board (a) IN GENERAL.—Section 1204(b) of title 5, committees’ means the committees of appro- may not issue a decision on the merits of a United States Code, is amended— priate jurisdiction.’’. request for corrective action within 15 days (1) by redesignating paragraph (3) as para- SEC. 120. WHISTLEBLOWER PROTECTION OM- after granting or denying a motion request- graph (4); BUDSMAN. ing certification. (2) by inserting after paragraph (2) the fol- (a) IN GENERAL.—Section 3 of the Inspector ‘‘(6)(A) Any decision of the Board, any ad- lowing: General Act of 1978 (5 U.S.C. App.) is amend- ministrative law judge appointed by the ‘‘(3) With respect to a request for correc- ed by striking subsection (d) and inserting Board under section 3105 of this title and as- tive action based on an alleged prohibited the following: signed to the case, or any employee of the personnel practice described in section Board designated by the Board and assigned ‘‘(d)(1) Each Inspector General shall, in ac- 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for cordance with applicable laws and regula- to the case to grant or deny a certification which the associated personnel action is an described under paragraph (4)(ii) shall be re- tions governing the civil service— action covered under section 7512 or 7542, the ‘‘(A) appoint an Assistant Inspector Gen- viewed on appeal of a final order or decision Board, any administrative law judge ap- of the Board under section 7703 only if— eral for Auditing who shall have the respon- pointed by the Board under section 3105 of sibility for supervising the performance of ‘‘(i) a motion requesting a certification this title, or any employee of the Board des- was denied; and auditing activities relating to programs and ignated by the Board may, with respect to operations of the establishment; ‘‘(ii) the reviewing court vacates the deci- any party, grant a motion for summary judg- sion of the Board on the merits of the claim ‘‘(B) appoint an Assistant Inspector Gen- ment when the Board or the administrative eral for Investigations who shall have the re- under the standards set forth in section law judge determines that there is no gen- 7703(c). sponsibility for supervising the performance uine issue as to any material fact and that of investigative activities relating to such ‘‘(B) The decision to deny the certification the moving party is entitled to a judgment shall be overturned by the reviewing court, programs and operations; and as a matter of law.’’. ‘‘(C) designate a Whistleblower Protection and an order granting certification shall be (b) SUNSET.— Ombudsman who shall educate agency em- issued by the reviewing court, if such deci- (1) IN GENERAL.—Except as provided under ployees— sion is found to be arbitrary, capricious, or paragraph (2), the amendments made by this ‘‘(i) about prohibitions on retaliation for an abuse of discretion. section shall cease to have effect 5 years protected disclosures; and ‘‘(C) The reviewing court’s decision shall after the effective date of this Act. ‘‘(ii) who have made or are contemplating not be considered evidence of any determina- (2) PENDING CLAIMS.—The amendments making a protected disclosure about the tion by the Board, any administrative law made by this section shall continue to apply rights and remedies against retaliation for judge appointed by the Board under section with respect to any claim pending before the protected disclosures. 3105 of this title, or any employee of the Board on the last day of the 5-year period de- Board designated by the Board on the merits scribed under paragraph (1). ‘‘(2) The Whistleblower Protection Om- of the underlying allegations during the SEC. 119. DISCLOSURES OF CLASSIFIED INFOR- budsman shall not act as a legal representa- course of any action at law or equity for de MATION. tive, agent, or advocate of the employee or novo review in the appropriate United States (a) PROHIBITED PERSONNEL PRACTICES.— former employee. district court in accordance with this sub- Section 2302(b)(8) of title 5, United States ‘‘(3) For the purposes of this section, the section. Code, is amended— requirement of the designation of a Whistle- ‘‘(7) In any action filed under this sub- (1) in subparagraph (A), by striking ‘‘or’’ blower Protection Ombudsman under para- section— after the semicolon; graph (1)(C) shall not apply to—

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00093 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8822 CONGRESSIONAL RECORD — SENATE December 10, 2010 ‘‘(A) any agency that is an element of the ‘‘(2) mismanagement, a gross waste of ‘‘(B) for notice and the opportunity to be intelligence community (as defined in sec- funds, an abuse of authority, or a substantial heard, including the opportunity to present tion 3(4) of the National Security Act of 1947 and specific danger to public health or safe- relevant evidence, including witness testi- (50 U.S.C. 401a(4))); or ty. mony; ‘‘(B) as determined by the President, any ‘‘(c) ENFORCEMENT.—The President shall ‘‘(C) that the employee or former employee executive agency or unit thereof the prin- provide for the enforcement of this section in may be represented by counsel; cipal function of which is the conduct of for- a manner consistent with applicable provi- ‘‘(D) that the employee or former employee eign intelligence or counter intelligence ac- sions of sections 1214 and 1221. has a right to a decision based on the record tivities.’’. ‘‘(d) EXISTING RIGHTS PRESERVED.—Noth- developed during the appeal; (b) TECHNICAL AND CONFORMING AMEND- ing in this section shall be construed to— ‘‘(E) that not more than 180 days shall pass MENT.—Section 8D(j) of the Inspector Gen- ‘‘(1) preempt or preclude any employee, or from the filing of the appeal to the report of eral Act of 1978 (5 U.S.C. App.) is amended— applicant for employment, at the Federal the impartial fact-finder to the agency head (1) by striking ‘‘section 3(d)(1)’’ and insert- Bureau of Investigation from exercising or the designee of the agency head, unless— ing ‘‘section 3(d)(1)(A)’’; and rights currently provided under any other ‘‘(i) the employee and the agency con- (2) by striking ‘‘section 3(d)(2)’’ and insert- law, rule, or regulation, including section cerned agree to an extension; or ing ‘‘section 3(d)(1)(B)’’. 2303; ‘‘(ii) the impartial fact-finder determines (c) SUNSET.— ‘‘(2) repeal section 2303; or in writing that a greater period of time is re- (1) IN GENERAL.—The amendments made by ‘‘(3) provide the President or Director of quired in the interest of fairness or national this section shall cease to have effect on the National Intelligence the authority to revise security; date that is 5 years after the date of enact- regulations related to section 2303, codified ‘‘(F) for the use of information specifically ment of this Act. in part 27 of the Code of Federal Regula- required by Executive order to be kept clas- (2) RETURN TO PRIOR AUTHORITY.—Upon the tions.’’. sified in the interest of national defense or date described in paragraph (1), section 3(d) (b) TECHNICAL AND CONFORMING AMEND- the conduct of foreign affairs in a manner and section 8D(j) of the Inspector General MENT.—The table of sections for chapter 23 of consistent with the interests of national se- title 5, United States Code, is amended by in- Act of 1978 (5 U.S.C. App.) shall read as such curity, including ex parte submissions if the serting after the item relating to section 2303 sections read on the day before the date of agency determines that the interests of na- the following: enactment of this Act. tional security so warrant; and ‘‘2303A. Prohibited personnel practices in the TITLE II—INTELLIGENCE COMMUNITY ‘‘(G) that the employee or former employee intelligence community.’’. WHISTLEBLOWER PROTECTIONS shall have no right to compel the production SEC. 202. REVIEW OF SECURITY CLEARANCE OR of information specifically required by Exec- SEC. 201. PROTECTION OF INTELLIGENCE COM- ACCESS DETERMINATIONS. MUNITY WHISTLEBLOWERS. utive order to be kept classified in the inter- (a) IN GENERAL.—Section 3001(b) of the In- est of national defense or the conduct of for- (a) IN GENERAL.—Chapter 23 of title 5, telligence Reform and Terrorism Prevention eign affairs, except evidence necessary to es- United States Code, is amended by inserting Act of 2004 (50 U.S.C. 435b(b)) is amended— after section 2303 the following: tablish that the employee made the disclo- (1) in the matter preceding paragraph (1), sure or communication such employee al- ‘‘§ 2303A. Prohibited personnel practices in by striking ‘‘Not’’ and inserting ‘‘Except as leges was protected by subparagraphs (A), the intelligence community otherwise provided, not’’; (B), and (C) of subsection (j)(1).’’. ‘‘(a) DEFINITIONS.—In this section— (2) in paragraph (5), by striking ‘‘and’’ (b) RETALIATORY REVOCATION OF SECURITY ‘‘(1) the term ‘agency’ means an executive after the semicolon; CLEARANCES AND ACCESS DETERMINATIONS.— department or independent establishment, as (3) in paragraph (6), by striking the period Section 3001 of the Intelligence Reform and defined under sections 101 and 104, that con- at the end and inserting ‘‘; and’’; and Terrorism Prevention Act of 2004 (50 U.S.C. tains an intelligence community element, (4) by inserting after paragraph (6) the fol- 435b) is amended by adding at the end the except the Federal Bureau of Investigation; lowing: following: ‘‘(2) the term ‘intelligence community ele- ‘‘(7) not later than 180 days after the date ‘‘(j) RETALIATORY REVOCATION OF SECURITY ment’— of enactment of the Whistleblower Protec- CLEARANCES AND ACCESS DETERMINATIONS.— ‘‘(A) means— tion Enhancement Act of 2010— ‘‘(1) IN GENERAL.—Agency personnel with ‘‘(i) the Central Intelligence Agency, the ‘‘(A) developing policies and procedures authority over personnel security clearance Defense Intelligence Agency, the National that permit, to the extent practicable, indi- or access determinations shall not take or Geospatial-Intelligence Agency, the National viduals who challenge in good faith a deter- fail to take, or threaten to take or fail to Security Agency, the Office of the Director mination to suspend or revoke a security take, any action with respect to any employ- of National Intelligence, and the National clearance or access to classified information ee’s security clearance or access determina- Reconnaissance Office; and to retain their government employment sta- tion because of— ‘‘(ii) any executive agency or unit thereof tus while such challenge is pending; and ‘‘(A) any disclosure of information to the determined by the President under section ‘‘(B) developing and implementing uniform Director of National Intelligence (or an em- 2302(a)(2)(C)(ii) of title 5, United States Code, and consistent policies and procedures to en- ployee designated by the Director of Na- to have as its principal function the conduct sure proper protections during the process tional Intelligence for such purpose) or the of foreign intelligence or counterintelligence for denying, suspending, or revoking a secu- head of the employing agency (or employee activities; and rity clearance or access to classified infor- designated by the head of that agency for ‘‘(B) does not include the Federal Bureau mation, including the provision of a right to such purpose) by an employee that the em- of Investigation; and appeal such a denial, suspension, or revoca- ployee reasonably believes evidences— ‘‘(3) the term ‘personnel action’ means any tion, except that there shall be no appeal of ‘‘(i) a violation of any law, rule, or regula- action described in clauses (i) through (x) of an agency’s suspension of a security clear- tion, except for an alleged violation that is a section 2302(a)(2)(A) with respect to an em- ance or access determination for purposes of minor, inadvertent violation, and occurs dur- ployee in a position in an intelligence com- conducting an investigation, if that suspen- ing the conscientious carrying out of official munity element (other than a position of a sion lasts no longer than 1 year or the head duties; or confidential, policy-determining, policy- of the agency certifies that a longer suspen- ‘‘(ii) gross mismanagement, a gross waste making, or policy-advocating character). sion is needed before a final decision on de- of funds, an abuse of authority, or a substan- ‘‘(b) IN GENERAL.—Any employee of an nial or revocation to prevent imminent harm tial and specific danger to public health or agency who has authority to take, direct to the national security. safety; others to take, recommend, or approve any ‘‘Any limitation period applicable to an ‘‘(B) any disclosure to the Inspector Gen- personnel action, shall not, with respect to agency appeal under paragraph (7) shall be eral of an agency or another employee des- such authority, take or fail to take a per- tolled until the head of the agency (or in the ignated by the head of the agency to receive sonnel action with respect to any employee case of any component of the Department of such disclosures, of information which the of an intelligence community element as a Defense, the Secretary of Defense) deter- employee reasonably believes evidences— reprisal for a disclosure of information by mines, with the concurrence of the Director ‘‘(i) a violation of any law, rule, or regula- the employee to the Director of National In- of National Intelligence, that the policies tion, except for an alleged violation that is a telligence (or an employee designated by the and procedures described in paragraph (7) minor, inadvertent violation, and occurs dur- Director of National Intelligence for such have been established for the agency or the ing the conscientious carrying out of official purpose), or to the head of the employing Director of National Intelligence promul- duties; or agency (or an employee designated by the gates the policies and procedures under para- ‘‘(ii) gross mismanagement, a gross waste head of that agency for such purpose), which graph (7). The policies and procedures for ap- of funds, an abuse of authority, or a substan- the employee reasonably believes evi- peals developed under paragraph (7) shall be tial and specific danger to public health or dences— comparable to the policies and procedures safety; ‘‘(1) a violation of any law, rule, or regula- pertaining to prohibited personnel practices ‘‘(C) any communication that complies tion, except for an alleged violation that— defined under section 2302(b)(8) of title 5, with— ‘‘(A) is a minor, inadvertent violation; and United States Code, and provide— ‘‘(i) subsection (a)(1), (d), or (h) of section ‘‘(B) occurs during the conscientious car- ‘‘(A) for an independent and impartial fact- 8H of the Inspector General Act of 1978 (5 rying out of official duties; or finder; U.S.C. App.);

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00094 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8823 ‘‘(ii) subsection (d)(5)(A), (D), or (G) of sec- ployee would have held had the violation not doubt resolved in favor of national security, tion 17 of the Central Intelligence Agency occurred. Such corrective action shall in- under Executive Order 12968 (60 Fed. Reg. Act of 1949 (50 U.S.C. 403q); or clude reasonable attorney’s fees and any 40245; relating to access to classified infor- ‘‘(iii) subsection (k)(5)(A), (D), or (G), of other reasonable costs incurred, and may in- mation) or any successor thereto (including section 103H of the National Security Act of clude back pay and related benefits, travel any adjudicative guidelines promulgated 1947 (50 U.S.C. 403–3h); expenses, and compensatory damages not to under such orders) or any subsequent Execu- ‘‘(D) the exercise of any appeal, complaint, exceed $300,000. tive order, regulation, or policy concerning or grievance right granted by any law, rule, ‘‘(C) CONTRIBUTING FACTOR.—In deter- access to classified information. or regulation; mining whether the adverse security clear- ‘‘(H) REMEDIES.— ‘‘(E) testifying for or otherwise lawfully ance or access determination violated para- ‘‘(i) CORRECTIVE ACTION.—If the Board finds assisting any individual in the exercise of graph (1) of this subsection, the agency shall that the adverse security clearance or access any right referred to in subparagraph (D); or find that paragraph (1) of this subsection was determination violated paragraph (1), it ‘‘(F) cooperating with or disclosing infor- violated if a disclosure described in para- shall order the agency head to take specific mation to the Inspector General of an agen- graph (1) was a contributing factor in the ad- corrective action to return the employee or cy, in accordance with applicable provisions verse security clearance or access deter- former employee, as nearly as practicable of law in connection with an audit, inspec- mination taken against the individual, un- and reasonable, to the position such em- tion, or investigation conducted by the In- less the agency demonstrates by a prepon- ployee or former employee would have held spector General, derance of the evidence that it would have had the violation not occurred. Such correc- taken the same action in the absence of such tive action shall include reasonable attor- if the actions described under subparagraphs disclosure, giving the utmost deference to ney’s fees and any other reasonable costs in- (D) through (F) do not result in the employee the agency’s assessment of the particular curred, and may include back pay and re- or applicant unlawfully disclosing informa- threat to the national security interests of lated benefits, travel expenses, and compen- tion specifically required by Executive order the United States in the instant matter. satory damages not to exceed $300,000. The to be kept classified in the interest of na- ‘‘(5) APPELLATE REVIEW OF SECURITY CLEAR- Board may recommend, but may not order, tional defense or the conduct of foreign af- ANCE ACCESS DETERMINATIONS BY DIRECTOR OF reinstatement or hiring of a former em- fairs. NATIONAL INTELLIGENCE.— ployee. The Board may order that the former ‘‘(2) RULE OF CONSTRUCTION.—Consistent ‘‘(A) DEFINITION.—In this paragraph, the employee be treated as though the employee with the protection of sources and methods, term ‘Board’ means the appellate review were transferring from the most recent posi- nothing in paragraph (1) shall be construed board established under section 204 of the tion held when seeking other positions with- to authorize the withholding of information Whistleblower Protection Enhancement Act in the executive branch. Any corrective ac- from the Congress or the taking of any per- of 2010. tion shall not include the reinstating of any sonnel action against an employee who dis- ‘‘(B) APPEAL.—Within 60 days after receiv- security clearance or access determination. closes information to the Congress. ing notice of an adverse final agency deter- The agency head shall take the actions so or- ‘‘(3) DISCLOSURES.— mination under a proceeding under para- dered within 90 days, unless the Director of ‘‘(A) IN GENERAL.—A disclosure shall not be graph (4), an employee or former employee National Intelligence, the Secretary of En- excluded from paragraph (1) because— may appeal that determination to the Board. ergy, or the Secretary of Defense, in the case ‘‘(i) the disclosure was made to a person, ‘‘(C) POLICIES AND PROCEDURES.—The of any component of the Department of De- including a supervisor, who participated in Board, in consultation with the Attorney fense, determines that doing so would endan- an activity that the employee reasonably be- General, Director of National Intelligence, ger national security. lieved to be covered by paragraph (1)(A)(ii); and the Secretary of Defense, shall develop ‘‘(ii) RECOMMENDED ACTION.—If the Board ‘‘(ii) the disclosure revealed information and implement policies and procedures for finds that reinstating the employee or that had been previously disclosed; adjudicating the appeals authorized by sub- former employee’s security clearance or ac- ‘‘(iii) of the employee’s motive for making paragraph (B). The Director of National In- cess determination is clearly consistent with the disclosure; telligence and Secretary of Defense shall the interests of national security, it shall ‘‘(iv) the disclosure was not made in writ- jointly approve any rules, regulations, or recommend such action to the head of the ing; guidance issued by the Board concerning the entity selected under subsection (b) and the ‘‘(v) the disclosure was made while the em- procedures for the use or handling of classi- head of the affected agency. ployee was off duty; or fied information. ‘‘(I) CONGRESSIONAL NOTIFICATION.— ‘‘(vi) of the amount of time which has ‘‘(D) REVIEW.—The Board’s review shall be ‘‘(i) ORDERS.—Consistent with the protec- passed since the occurrence of the events de- on the complete agency record, which shall tion of sources and methods, at the time the scribed in the disclosure. be made available to the Board. The Board Board issues an order, the Chairperson of the ‘‘(B) REPRISALS.—If a disclosure is made may not hear witnesses or admit additional Board shall notify— during the normal course of duties of an em- evidence. Any portions of the record that ‘‘(I) the Committee on Homeland Security ployee, the disclosure shall not be excluded were submitted ex parte during the agency and Government Affairs of the Senate; from paragraph (1) if any employee who has proceedings shall be submitted ex parte to ‘‘(II) the Select Committee on Intelligence authority to take, direct others to take, rec- the Board. of the Senate; ommend, or approve any personnel action ‘‘(E) FURTHER FACT-FINDING OR IMPROPER ‘‘(III) the Committee on Oversight and with respect to the employee making the dis- DENIAL.—If the Board concludes that further Government Reform of the House of Rep- closure, took, failed to take, or threatened fact-finding is necessary or finds that the resentatives; to take or fail to take a personnel action agency improperly denied the employee or ‘‘(IV) the Permanent Select Committee on with respect to that employee in reprisal for former employee the opportunity to present Intelligence of the House of Representatives; the disclosure. evidence that, if admitted, would have a sub- and ‘‘(4) AGENCY ADJUDICATION.— stantial likelihood of altering the outcome, ‘‘(V) the committees of the Senate and the ‘‘(A) REMEDIAL PROCEDURE.—An employee the Board shall remand the matter to the House of Representatives that have jurisdic- or former employee who believes that he or agency from which it originated for addi- tion over the employing agency, including in she has been subjected to a reprisal prohib- tional proceedings in accordance with the the case of a final order or decision of the ited by paragraph (1) of this subsection may, rules of procedure issued by the Board. Defense Intelligence Agency, the National within 90 days after the issuance of notice of ‘‘(F) DE NOVO DETERMINATION.—The Board Geospatial-Intelligence Agency, the National such decision, appeal that decision within shall make a de novo determination, based Security Agency, or the National Reconnais- the agency of that employee or former em- on the entire record and under the standards sance Office, the Committee on Armed Serv- ployee through proceedings authorized by specified in paragraph (4), of whether the em- ices of the Senate and the Committee on paragraph (7) of subsection (a), except that ployee or former employee received an ad- Armed Services of the House of Representa- there shall be no appeal of an agency’s sus- verse security clearance or access deter- tives. pension of a security clearance or access de- mination in violation of paragraph (1). In ‘‘(ii) RECOMMENDATIONS.—If the agency termination for purposes of conducting an considering the record, the Board may weigh head and the head of the entity selected investigation, if that suspension lasts not the evidence, judge the credibility of wit- under subsection (b) do not follow the longer than 1 year (or a longer period in ac- nesses, and determine controverted ques- Board’s recommendation to reinstate a cordance with a certification made under tions of fact. In doing so, the Board may con- clearance, the head of the entity selected subsection (b)(7)). sider the prior fact-finder’s opportunity to under subsection (b) shall notify the com- ‘‘(B) CORRECTIVE ACTION.—If, in the course see and hear the witnesses. mittees described in subclauses (I) through of proceedings authorized under subpara- ‘‘(G) ADVERSE SECURITY CLEARANCE OR AC- (V) of clause (i). graph (A), it is determined that the adverse CESS DETERMINATION.—If the Board finds that ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec- security clearance or access determination the adverse security clearance or access de- tion shall be construed to permit or require violated paragraph (1) of this subsection, the termination violated paragraph (1), it shall judicial review of any— agency shall take specific corrective action then separately determine whether rein- ‘‘(A) agency action under this section; or to return the employee or former employee, stating the security clearance or access de- ‘‘(B) action of the appellate review board as nearly as practicable and reasonable, to termination is clearly consistent with the established under section 204 of the Whistle- the position such employee or former em- interests of national security, with any blower Protection Enhancement Act of 2010.

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‘‘(7) PRIVATE CAUSE OF ACTION.—Nothing in terest for the Director, the Director shall re- years after the date of enactment of this this section shall be construed to permit, au- turn the complaint or information to the In- Act, the Director of National Intelligence thorize, or require a private cause of action spector General with that determination and shall submit a report on the status of the im- to challenge the merits of a security clear- the Inspector General shall make the trans- plementation of the regulations promulgated ance determination.’’. mission to the Director of National Intel- under subsection (b) to the congressional (c) ACCESS DETERMINATION DEFINED.—Sec- ligence. In such a case the requirements of oversight committees. tion 3001(a) of the Intelligence Reform and this subsection for the Director apply to the Terrorism Prevention Act of 2004 (50 U.S.C. recipient of the Inspector General’s submis- (d) NONAPPLICABILITY TO CERTAIN TERMI- 435b(a)) is amended by adding at the end the sion; and’’; and NATIONS.—Section 2303A of title 5, United following: (2) by adding at the end the following: States Code, as added by this Act, and sec- ‘‘(H) An individual who has submitted a ‘‘(9) The term ‘access determination’ tion 3001 of the Intelligence Reform and Ter- complaint or information to the Inspector means the process for determining whether rorism Prevention Act of 2004 (50 U.S.C. an employee— General under this section may notify any 435b), as amended by this Act, shall not ‘‘(A) is eligible for access to classified in- member of Congress or congressional staff formation in accordance with Executive member of the fact that such individual has apply to adverse security clearance or access Order 12968 (60 Fed. Reg. 40245; relating to ac- made a submission to the Inspector General, determinations if the affected employee is cess to classified information), or any suc- and of the date on which such submission concurrently terminated under— cessor thereto, and Executive Order 10865 (25 was made.’’. (1) section 1609 of title 10, United States Fed. Reg. 1583; relating to safeguarding clas- SEC. 204. REGULATIONS; REPORTING REQUIRE- Code; sified information with industry); and MENTS; NONAPPLICABILITY TO CER- (2) the authority of the Director of Na- ‘‘(B) possesses a need to know under that TAIN TERMINATIONS. tional Intelligence under section 102A(m) of Order.’’. (a) DEFINITIONS.—In this section— the National Security Act of 1947 (50 U.S.C. (1) the term ‘‘congressional oversight com- (d) RULE OF CONSTRUCTION.—Nothing in 403–1(m)), if— mittees’’ means the— section 3001 of the Intelligence Reform and (A) the Director personally summarily ter- (A) the Committee on Homeland Security Terrorism Prevention Act of 2004 (50 U.S.C. minates the individual; and and Government Affairs of the Senate; 435b), as amended by this Act, shall be con- (B) the Select Committee on Intelligence (B) the Director— strued to require the repeal or replacement of the Senate; (i) determines the termination to be in the of agency appeal procedures implementing (C) the Committee on Oversight and Gov- interest of the United States; Executive Order 12968 (60 Fed. Reg. 40245; re- ernment Reform of the House of Representa- (ii) determines that the procedures pre- lating to classified national security infor- tives; and scribed in other provisions of law that au- mation), or any successor thereto, and Exec- (D) the Permanent Select Committee on thorize the termination of the employment utive Order 10865 (25 Fed. Reg. 1583; relating Intelligence of the House of Representatives; of such employee cannot be invoked in a to safeguarding classified information with and manner consistent with the national secu- industry), or any successor thereto, that (2) the term ‘‘intelligence community ele- rity; and meet the requirements of section 3001(b)(7) of ment’’— (iii) not later than 5 days after such termi- such Act, as so amended. (A) means— nation, notifies the congressional oversight SEC. 203. REVISIONS RELATING TO THE INTEL- (i) the Central Intelligence Agency, the De- committees of the termination; LIGENCE COMMUNITY WHISTLE- fense Intelligence Agency, the National (3) the authority of the Director of the BLOWER PROTECTION ACT. Geospatial-Intelligence Agency, the National Central Intelligence Agency under section (a) IN GENERAL.—Section 8H of the Inspec- Security Agency, the Office of the Director 104A(e) of the National Security Act of 1947 tor General Act of 1978 (5 U.S.C. App.) is of National Intelligence, and the National (50 U.S.C. 403–4a(e)), if— amended— Reconnaissance Office; and (A) the Director personally summarily ter- (1) in subsection (b)— (ii) any executive agency or unit thereof minates the individual; and (A) by inserting ‘‘(1)’’ after ‘‘(b)’’; and determined by the President under section (B) the Director— (B) by adding at the end the following: 2302(a)(2)(C)(ii) of title 5, United States Code, (i) determines the termination to be in the ‘‘(2) If the head of an establishment deter- to have as its principal function the conduct interest of the United States; mines that a complaint or information of foreign intelligence or counterintelligence (ii) determines that the procedures pre- activities; and transmitted under paragraph (1) would cre- scribed in other provisions of law that au- (B) does not include the Federal Bureau of ate a conflict of interest for the head of the thorize the termination of the employment Investigation. establishment, the head of the establishment of such employee cannot be invoked in a (b) REGULATIONS.— shall return the complaint or information to manner consistent with the national secu- the Inspector General with that determina- (1) IN GENERAL.—The Director of National Intelligence shall prescribe regulations to rity; and tion and the Inspector General shall make (iii) not later than 5 days after such termi- the transmission to the Director of National ensure that a personnel action shall not be taken against an employee of an intelligence nation, notifies the congressional oversight Intelligence. In such a case, the require- committees of the termination; or ments of this section for the head of the es- community element as a reprisal for any dis- closure of information described in section (4) section 7532 of title 5, United States tablishment apply to the recipient of the In- 2303A(b) of title 5, United States Code, as Code, if— spector General’s transmission. The Director added by this Act. (A) the agency head personally terminates of National Intelligence shall consult with (2) APPELLATE REVIEW BOARD.—Not later the individual; and the members of the appellate review board than 180 days after the date of enactment of (B) the agency head— established under section 204 of the Whistle- this Act, the Director of National Intel- (i) determines the termination to be in the blower Protection Enhancement Review Act ligence, in consultation with the Secretary interest of the United States; of 2010 regarding all transmissions under this of Defense, the Attorney General, and the (ii) determines that the procedures pre- paragraph.’’; heads of appropriate agencies, shall establish scribed in other provisions of law that au- (2) by designating subsection (h) as sub- an appellate review board that is broadly thorize the termination of the employment section (i); and representative of affected Departments and of such employee cannot be invoked in a (3) by inserting after subsection (g), the agencies and is made up of individuals with manner consistent with the national secu- following: expertise in merit systems principles and na- rity; and ‘‘(h) An individual who has submitted a tional security issues— (iii) not later than 5 days after such termi- complaint or information to an Inspector (A) to hear whistleblower appeals related nation, notifies the congressional oversight General under this section may notify any to security clearance access determinations committees of the termination. member of Congress or congressional staff described in section 3001(j) of the Intel- member of the fact that such individual has ligence Reform and Terrorism Prevention TITLE III—SAVINGS CLAUSE; EFFECTIVE made a submission to that particular Inspec- Act of 2004 (50 U.S.C. 435b), as added by this DATE tor General, and of the date on which such Act; and submission was made.’’. (B) that shall include a subpanel that re- SEC. 301. SAVINGS CLAUSE. (b) CENTRAL INTELLIGENCE AGENCY.—Sec- flects the composition of the intelligence Nothing in this Act shall be construed to tion 17(d)(5) of the Central Intelligence Agen- committee, which shall be composed of intel- imply any limitation on any protections af- cy Act of 1949 (50 U.S.C. 403q) is amended— ligence community elements and inspectors forded by any other provision of law to em- (1) in subparagraph (B)— general from intelligence community ele- (A) by inserting ‘‘(i)’’ after ‘‘(B)’’; and ments, for the purpose of hearing cases that ployees and applicants. (B) by adding at the end the following: arise in elements of the intelligence commu- SEC. 302. EFFECTIVE DATE. ‘‘(ii) If the Director determines that a com- nity. plaint or information transmitted under (c) REPORT ON THE STATUS OF IMPLEMENTA- This Act shall take effect 30 days after the paragraph (1) would create a conflict of in- TION OF REGULATIONS.—Not later than 2 date of enactment of this Act.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00096 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8825 PROVIDING FOR THE APPROVAL (b) CROSS REFERENCES TO PROVISIONS OF PART 1—Extension of Rights and Protec- OF FINAL REGULATIONS ISSUED REGULATIONS.—A reference in the issued reg- tions Relating to Veterans’ Preference Under BY THE OFFICE OF COMPLIANCE ulations— Title 5, United States Code, to Covered Em- (1) in paragraphs (l) and (m) of section TO IMPLEMENT THE VETERANS ployees of the Legislative Branch (section 1.102, to subparagraphs (3) through (8) of 4(c) of the Veterans Employment Opportuni- EMPLOYMENT OPPORTUNITIES paragraph (g) of that section shall be consid- ties Act of 1998) ACT OF 1998 ered to be a reference to paragraph (g) of SUBPART A—MATTERS OF GENERAL APPLICA- Mrs. GILLIBRAND. Mr. President, I that section; BILITY TO ALL REGULATIONS PROMULGATED ask unanimous consent that the Sen- (2) in section 1.102(l), to subparagraphs (aa) UNDER SECTION 4 OF THE VEOA through (dd) of section 1.102(g) shall be con- ate proceed to the immediate consider- Sec. sidered to be a reference to subparagraphs ation of S. Con. Res. 77, submitted ear- 1.101 Purpose and scope. (aa) through (dd) of that section (as specified 1.102 Definitions. lier today. in the regulations classified with an ‘‘H’’ The PRESIDING OFFICER. The 1.103 Adoption of regulations. classification); 1.104 Coordination with section 225 of the clerk will report the concurrent resolu- (3) in section 1.102(m), to subparagraphs Congressional Accountability tion by title. (aa) through (ee) of section 1.102(g) shall be Act. considered to be a reference to subpara- The legislative clerk read as follows: SEC. 1.101. PURPOSE AND SCOPE. graphs (aa) through (ee) of that section (as A concurrent resolution (S. Con. Res. 77) to (a) Section 4(c) of the VEOA. The Veterans specified in the regulations classified with provide for the approval of final regulations Employment Opportunities Act (VEOA) ap- an ‘‘S’’ classification); issued by the Office of Compliance to imple- plies the rights and protections of sections (4) in section 1.111(d), to section 1.102(o) ment the Veterans Employment Opportuni- 2108, 3309 through 3312, and subchapter I of shall be considered to be a reference to sec- ties Act of 1998 that apply to certain legisla- chapter 35 of title 5 U.S.C., to certain cov- tion 1.102(p); and tive branch employing offices and their cov- ered employees within the Legislative (5) in section 1.112, to section 1.102(h) shall ered employees. branch. be considered to be a reference to section There being no objection, the Senate (b) Purpose of regulations. The regulations 1.102(i). set forth herein are the substantive regula- proceeded to consider the concurrent (c) CROSS REFERENCES TO OTHER PROVI- tions that the Board of Directors of the Of- resolution. SIONS OF LAW.—A reference in the issued reg- Mrs. GILLIBRAND. Mr. President, I ulations— fice of Compliance has promulgated pursuant to section 4(c)(4) of the VEOA, in accordance ask unanimous consent the concurrent (1) to the Veterans Employment Opportu- nities Act shall be considered to be a ref- with the rulemaking procedure set forth in resolution be agreed to, the motion to section 304 of the CAA (2 U.S.C. § 1384). The reconsider be laid upon the table, and erence to the Veterans Employment Oppor- tunities Act of 1998; purpose of subparts B, C and D of these regu- that any statements be printed in the (2) to 2 U.S.C. 43d(a) shall be considered to lations is to define veterans’ preference and RECORD. be a reference to section 105(a) of the Second the administration of veterans’ preference as The PRESIDING OFFICER. Without Supplemental Appropriations Act, 1978; applicable to Federal employment in the objection, it is so ordered. (3) to 2 U.S.C. 1316a(3) shall be considered Legislative branch. (5 U.S.C. § 2108, as applied The concurrent resolution (S. Con. to be a reference to section 4(c)(3) of the Vet- by the VEOA). The purpose of subpart E of Res. 77) was agreed to, as follows: erans Employment Opportunities Act of 1998; these regulations is to ensure that the prin- (4) to 5 U.S.C. 2108(3)(c) shall be considered ciples of the veterans’ preference laws are in- S. CON. RES. 77 tegrated into the existing employment and Resolved by the Senate (the House of Rep- to be a reference to section 2108(3)(C) of title 5, United States Code; retention policies and processes of those em- resentatives concurring), That the following ploying offices with employees covered by regulations issued by the Office of Compli- (5) to the Americans with Disabilities Act shall be considered to be a reference to the the VEOA, and to provide for transparency ance on March 21, 2008, and stated in section in the application of veterans’ preference in 4, with the technical corrections described in Americans with Disabilities Act of 1990; (6) to the Soil Conservation and Allotment covered appointment and retention deci- section 3 and to the extent applied by section sions. Provided, nothing in these regulations 2, are hereby approved: Act shall be considered to be a reference to the Soil Conservation and Domestic Allot- shall be construed so as to require an em- SEC. 2. APPLICATION OF REGULATIONS. ment Act; and ploying office to reduce any existing vet- (a) IN GENERAL.—For purposes of applying (7) to the Agricultural Adjustment Act erans’ preference rights and protections that the issued regulations as a body of regula- shall be considered to be a reference to the it may afford to preference eligible individ- tions required by section 304(a)(2)(B)(iii) of Agricultural Adjustment Act, reenacted with uals. the Congressional Accountability Act of 1995 (c) Scope of Regulations. The def- amendments by the Agricultural Marketing H Regs: (2 U.S.C. 1384(a)(2)(B)(iii)), the portions of inition of ‘‘covered employee’’ in Section 4(c) Agreement Act of 1937. the issued regulations that are unclassified (d) OTHER CORRECTIONS.—In the issued reg- of the VEOA limits the scope of the statute’s or classified with a ‘‘C’’ designation shall ulations— applicability within the Legislative branch. apply to all covered employees that are not (1) section 1.109 shall be considered to have The term ‘‘covered employee’’ excludes any employees of the House of Representatives or an ‘‘and’’ after paragraph (a); employee: (1) whose appointment is made by employees of the Senate, and employing of- (2) the second sentence of section 1.116 the President with the advice and consent of fices that are not offices of the House of Rep- shall be disregarded; the Senate; (2) whose appointment is made resentatives or the Senate. (3) section 1.118(b) shall be considered to by a Member of Congress within an employ- (b) DEFINITIONS.—In this section, the terms have an ‘‘and’’ after paragraph (2) rather ing office, as defined by Sec. 101 (9)(A–C) of ‘‘employee of the House of Representatives’’, than paragraph (1); the CAA, 2 U.S.C. § 1301 (9)(A–C) or; (3) whose ‘‘employee of the Senate’’, ‘‘covered em- (4) a reference in sections 1.118(c)(1) and appointment is made by a committee or sub- ployee’’, and ‘‘employing office’’ have the 1.120(b)(1) to veterans’ ‘‘preference eligible’’ committee of either House of Congress or a meanings given the terms in section 101 of shall be considered to be a reference to joint committee of the House of Representa- the Congressional Accountability Act of 1995 ‘‘preference eligible’’; tives and the Senate; or (4) who is appointed (2 U.S.C. 1301), except as limited by the regu- (5) sections 1.118(c) and 1.120(b) shall be to a position, the duties of which are equiva- lations (as corrected under section 3). considered to have an ‘‘and’’ after paragraph lent to those of a Senior Executive Service SEC. 3. TECHNICAL CORRECTIONS. (1); and position (within the meaning of section (a) CURRENT NAMES OF OFFICES AND HEADS (6) section 1.121(b)(6)(B) shall be considered 3132(a)(2) of title 5, United States Code). Ac- OF OFFICES.—A reference in the issued regu- to have an ‘‘and’’ at the end. cordingly, these regulations shall not apply lations— to any employing office that only employs SEC. 4. REGULATIONS. (1) to the Capitol Guide Board or the Cap- When approved by the House of Represent- individuals excluded from the definition of itol Guide Service (which no longer exist) atives for the House of Representatives, covered employee. shall be considered to be a reference to the these regulations will have the prefix ‘‘H.’’ S Regs: (c) Scope of Regulations. The defi- Office of Congressional Accessibility Serv- When approved by the Senate for the Senate, nition of ‘‘covered employee’’ in Section 4(c) ices; these regulations will have the prefix ‘‘S.’’ of the VEOA limits the scope of the statute’s (2) to the Capitol Police Board shall be When approved by Congress for the other em- applicability within the Legislative branch. considered to be a reference to the Capitol ploying offices covered by the CAA, these The term ‘‘covered employee’’ excludes any Police; regulations will have the prefix ‘‘C.’’ employee: (1) whose appointment is made by (3) to the Senate Restaurants (which are In this draft, ‘‘H&S Regs’’ denotes the provi- the President with the advice and consent of no longer public entities) shall be dis- sions that would be included in the regula- the Senate; (2) whose appointment is made regarded; and tions applicable to be made applicable to the or directed by a Member of Congress within (4) in sections 1.110(b) and 1.121(c), to the House and Senate, and ‘‘C Reg’’ denotes the an employing office, as defined by Sec. director of an employing office shall be con- provisions that would be included in the reg- 101(9)(A–C) of the CAA, 2 U.S.C. § 1301 (9)(A–C) sidered to be a reference to the head of an ulations to be made applicable to other em- or; (3) whose appointment is made by a com- employing office. ploying offices. mittee or subcommittee of either House of

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00097 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8826 CONGRESSIONAL RECORD — SENATE December 10, 2010 Congress or a joint committee of the House S. Regs: (g) Covered employee means any of Representatives; (2) a committee of the of Representatives and the Senate; (4) who is employees of (1) the House of Representa- House of Representatives or a joint com- appointed pursuant to 2 U.S.C. § 43d(a); or (5) tives; and (2) the Senate; (3) the Capitol mittee of the House of Representatives and who is appointed to a position, the duties of Guide Board; (4) the Capitol Police Board; (5) the Senate; or (3) any other office headed by which are equivalent to those of a Senior Ex- the Congressional Budget Office; (6) the Of- a person with the final authority to appoint, ecutive Service position (within the meaning fice of the Architect of the Capitol; (7) the hire, discharge, and set the terms, condi- of section 3132(a)(2) of title 5, United States Office of the Attending Physician; and (8) the tions, or privileges of the employment of an Code). Accordingly, these regulations shall Office of Compliance, but does not include an employee of the House of Representatives or not apply to any employing office that only employee (aa) whose appointment is made by the Senate. employs individuals excluded from the defi- the President with the advice and consent of S Regs: (n) Employing office means: (1) nition of covered employee. the Senate; (bb) whose appointment is made the personal office of a Senator; (2) a com- C Reg: (c) Scope of Regulations. The defi- or directed by a Member of Congress; (cc) mittee of the Senate or a joint committee of nition of ‘‘covered employee’’ in Section 4(c) whose appointment is made by a committee the House of Representatives and the Senate; of the VEOA limits the scope of the statute’s or subcommittee of either House of Congress or (3) any other office headed by a person applicability within the Legislative branch. or a joint committee of the House of Rep- with the final authority to appoint, or be di- The term ‘‘covered employee’’ excludes any resentatives and the Senate; (dd) who is ap- rected by a Member of Congress to appoint, employee: (1) whose appointment is made by pointed pursuant to 2 U.S.C. § 43d(a); or (ee) hire, discharge, and set the terms, condi- the President with the advice and consent of who is appointed to a position, the duties of tions, or privileges of the employment of an the Senate; (2) whose appointment is made which are equivalent to those of a Senior Ex- employee of the House of Representatives or by a Member of Congress or by a committee ecutive Service position (within the meaning the Senate. or subcommittee of either House of Congress of section 3132(a)(2) of title 5, United States C Reg: (n) Employing office means: the or a joint committee of the House of Rep- Code). The term covered employee includes Capitol Guide Board, the Capitol Police resentatives and the Senate; or (3) who is ap- an applicant for employment in a covered Board, the Congressional Budget Office, the pointed to a position, the duties of which are position and a former covered employee. Office of the Architect of the Capitol, the Of- equivalent to those of a Senior Executive C Reg: (g) Covered employee means any fice of the Attending Physician, and the Of- Service position (within the meaning of sec- employee of (1) the Capitol Guide Service; (2) fice of Compliance. tion 3132(a)(2) of title 5, United States Code). the Capitol Police; (3) the Congressional (o) Office means the Office of Compliance. Accordingly, these regulations shall not Budget Office; (4) the Office of the Architect (p) Preference eligible means veterans, apply to any employing office that only em- of the Capitol; (5) the Office of the Attending spouses, widows, widowers or mothers who ploys individuals excluded from the defini- Physician; or (6) the Office of Compliance, meet the definition of ‘‘preference eligible’’ tion of covered employee. but does not include an employee: (aa) whose in 5 U.S.C. § 2108(3)(A)–(G). appointment is made by the President with (q) Qualified applicant means an applicant SEC. 1.102. DEFINITIONS. for a covered position whom an employing Except as otherwise provided in these regu- the advice and consent of the Senate; or (bb) whose appointment is made by a Member of office deems to satisfy the requisite min- lations, as used in these regulations: imum job-related requirements of the posi- (a) Accredited physician means a doctor of Congress or by a committee or sub- committee of either House of Congress or a tion. Where the employing office uses an en- medicine or osteopathy who is authorized to trance examination or evaluation for a cov- practice medicine or surgery (as appropriate) joint committee of the House of Representa- tives and the Senate; or (cc) who is ap- ered position that is numerically scored, the by the State in which the doctor practices. term ‘‘qualified applicant’’ shall mean that The phrase ‘‘authorized to practice by the pointed to a position, the duties of which are equivalent to those of a Senior Executive the applicant has received a passing score on State’’ as used in this section means that the the examination or evaluation. provider must be authorized to diagnose and Service position (within the meaning of sec- tion 3132(a)(2) of title 5, United States Code). (r) Separated under honorable conditions treat physical or mental health conditions means either an honorable or a general dis- without supervision by a doctor or other The term covered employee includes an ap- plicant for employment in a covered position charge from the armed forces. The Depart- health care provider. ment of Defense is responsible for admin- (b) Act or CAA means the Congressional and a former covered employee. (h) Covered position means any position istering and defining military discharges. Accountability Act of 1995, as amended (Pub. that is or will be held by a covered employee. (s) Uniformed services means the armed L. 104–1, 109 Stat. 3, 2 U.S.C. §§ 1301–1438). (i) Disabled veteran means a person who forces, the commissioned corps of the Public (c) Active duty or active military duty was separated under honorable conditions Health Service, and the commissioned corps means full-time duty with military pay and from active duty in the armed forces per- of the National Oceanic and Atmospheric Ad- allowances in the armed forces, except (1) for formed at any time and who has established ministration. training or for determining physical fitness the present existence of a service-connected (t) VEOA means the Veterans Employment and (2) for service in the Reserves or Na- disability or is receiving compensation, dis- Opportunities Act of 1998 (Pub. L. 105–339, 112 tional Guard. ability retirement benefits, or pensions be- Stat. 3182). (d) Appointment means an individual’s ap- (u) Veterans means persons as defined in 5 cause of a public statute administered by the pointment to employment in a covered posi- U.S.C. § 2108(1), or any superseding legisla- Department of Veterans Affairs or a military tion, but does not include any personnel ac- tion. department. tion that an employing office takes with re- (j) Employee of the Office of the Architect SEC. 1.103. ADOPTION OF REGULATIONS. gard to an existing employee of the employ- of the Capitol includes any employee of the (a) Adoption of regulations. Section ing office. Office of the Architect of the Capitol, the Bo- 4(c)(4)(A) of the VEOA generally authorizes (e) Armed forces means the United States tanic Gardens, or the Senate Restaurants. the Board to issue regulations to implement Army, Navy, Air Force, Marine Corps, and (k) Employee of the Capitol Police Board section 4(c). In addition, section 4(c)(4)(B) of Coast Guard. includes any member or officer of the Cap- the VEOA directs the Board to promulgate (f) Board means the Board of Directors of itol Police. regulations that are ‘‘the same as the most the Office of Compliance. (l) Employee of the House of Representa- relevant substantive regulations (applicable H Regs: (g) Covered employee means any tives includes an individual occupying a po- with respect to the Executive branch) pro- employee of (1) the House of Representatives; sition the pay of which is disbursed by the mulgated to implement the statutory provi- and (2) the Senate; (3) the Capitol Guide Clerk of the House of Representatives, or an- sions referred to in paragraph (2)’’ of section Board; (4) the Capitol Police Board; (5) the other official designated by the House of 4(c) of the VEOA. Those statutory provisions Congressional Budget Office; (6) the Office of Representatives, or any employment posi- are section 2108, sections 3309 through 3312, the Architect of the Capitol; (7) the Office of tion in an entity that is paid with funds de- and subchapter I of chapter 35, of title 5, the Attending Physician; and (8) the Office of rived from the clerk-hire allowance of the United States Code. The regulations issued Compliance, but does not include an em- House of Representatives but not any such by the Board herein are on all matters for ployee (aa) whose appointment is made by individual employed by any entity listed in which section 4(c)(4)(B) of the VEOA requires the President with the advice and consent of subparagraphs (3) through (8) of paragraph a regulation to be issued. Specifically, it is the Senate; (bb) whose appointment is made (g) above nor any individual described in the Board’s considered judgment based on by a Member of Congress; (cc) whose appoint- subparagraphs (aa) through (dd) of paragraph the information available to it at the time of ment is made by a committee or sub- (g) above. promulgation of these regulations, that, committee of either House of Congress or a (m) Employee of the Senate includes any with the exception of the regulations adopt- joint committee of the House of Representa- employee whose pay is disbursed by the Sec- ed and set forth herein, there are no other tives and the Senate; or (dd) who is ap- retary of the Senate, but not any such indi- ‘‘substantive regulations (applicable with re- pointed to a position, the duties of which are vidual employed by any entity listed in sub- spect to the Executive branch) promulgated equivalent to those of a Senior Executive paragraphs (3) through (8) of paragraph (g) to implement the statutory provisions re- Service position (within the meaning of sec- above nor any individual described in sub- ferred to in paragraph (2)’’ of section 4(c) of tion 3132(a)(2) of title 5, United States Code). paragraphs (aa) through (ee) of paragraph (g) the VEOA that need be adopted. The term covered employee includes an ap- above. (b) Modification of substantive regula- plicant for employment in a covered position H Regs: (n) Employing office means: (1) tions. As a qualification to the statutory ob- and a former covered employee. the personal office of a Member of the House ligation to issue regulations that are ‘‘the

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00098 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8827 same as the most substantive regulations 1.110 Waiver of physical requirements in ap- immediately before his/her entrance into the (applicable with respect to the Executive pointments to covered posi- military service, or (2) on the basis of actual branch)’’, section 4(c)(4)(B) of the VEOA au- tions. duties performed in the military service, or thorizes the Board to ‘‘determine, for good SEC. 1.107. VETERANS’ PREFERENCE IN APPOINT- (3) as a combination of both methods. Em- cause shown and stated together with the MENTS TO RESTRICTED POSITIONS. ploying offices shall credit time spent in the regulation, that a modification of such regu- In each appointment action for the posi- military service according to the method lations would be more effective for the im- tions of custodian, elevator operator, guard, that will be of most benefit to the preference plementation of the rights and protections and messenger (as defined below and collec- eligible applicant. under’’ section 4(c) of the VEOA. tively referred to in these regulations as re- (b) for all experience material to the posi- (c) Rationale for Departure from the Most stricted covered positions) employing offices tion for which the applicant is being consid- Relevant Executive Branch Regulations. The shall restrict competition to preference eli- ered, including experience gained in reli- Board concludes that it must promulgate gible applicants as long as qualified pref- gious, civic, welfare, service, and organiza- regulations accommodating the human re- erence eligible applicants are available. The tional activities, regardless of whether he/ source systems existing in the Legislative provisions of sections 1.109 and 1.110 below she received pay therefor. branch; and that such regulations must take shall apply to the appointment of a pref- SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS into account the fact that the Board does not erence eligible applicant to a restricted cov- IN APPOINTMENTS TO COVERED PO- possess the statutory and Executive Order ered position. The provisions of section 1.108 SITIONS. based government-wide policy making au- shall apply to the appointment of a pref- (a) Subject to (c) below, in determining thority underlying OPM’s counterpart VEOA erence eligible applicant to a restricted cov- qualifications of a preference eligible for ap- regulations governing the Executive branch. ered position, in the event that there is more pointment, an employing office shall waive: OPM’s regulations are designed for the com- than one preference eligible applicant for the (1) with respect to a preference eligible ap- petitive service (defined in 5 U.S.C. position. plicant, requirements as to age, height, and § 2102(a)(2)), which does not exist in the em- Custodian—One whose primary duty is the weight, unless the requirement is essential ploying offices subject to this regulation. performance of cleaning or other ordinary to the performance of the duties of the posi- Therefore, to follow the OPM regulations routine maintenance duties in or about a tion; and would create detailed and complex rules and government building or a building under (2) with respect to a preference eligible ap- procedures for a workforce that does not Federal control, park, monument, or other plicant to whom it has made a conditional exist in the Legislative branch, while pro- Federal reservation. offer of employment, physical requirements viding no VEOA protections to the covered Elevator operator—One whose primary if, in the opinion of the employing office, on Legislative branch employees. We have cho- duty is the running of freight or passenger the basis of evidence before it, including any sen to propose specially tailored regulations, elevators. The work includes opening and recommendation of an accredited physician rather than simply to adopt those promul- closing elevator gates and doors, working el- submitted by the preference eligible appli- gated by OPM, so that we may effectuate evator controls, loading and unloading the cant, the preference eligible applicant is Congress’ intent in extending the principles elevator, giving information and directions physically able to perform efficiently the du- of the veterans’ preference laws to the Legis- to passengers such as on the location of of- ties of the position; lative branch through the VEOA. fices, and reporting problems in running the (b) Subject to (c) below, if an employing of- SEC. 1.104. COORDINATION WITH SECTION 225 OF elevator. fice determines, on the basis of evidence be- THE CONGRESSIONAL ACCOUNT- Guard—One whose primary duty is the as- fore it, including any recommendation of an ABILITY ACT. signment to a station, beat, or patrol area in accredited physician submitted by the pref- Statutory directive. Section 4(c)(4)(C) of a Federal building or a building under Fed- erence eligible applicant, that an applicant the VEOA requires that promulgated regula- eral control to prevent illegal entry of per- to whom it has made a conditional offer of tions must be consistent with section 225 of sons or property; or required to stand watch employment is preference eligible as a dis- the CAA. Among the relevant provisions of at or to patrol a Federal reservation, indus- abled veteran as described in 5 U.S.C. section 225 are subsection (f)(1), which pre- trial area, or other area designated by Fed- § 2108(3)(c) and who has a compensable serv- scribes as a rule of construction that defini- eral authority, in order to protect life and ice-connected disability of 30 percent or tions and exemptions in the laws made appli- property; make observations for detection of more is not able to fulfill the physical re- cable by the CAA shall apply under the CAA, fire, trespass, unauthorized removal of public quirements of the covered position, the em- and subsection (f)(3), which states that the property or hazards to Federal personnel or ploying office shall notify the preference eli- CAA shall not be considered to authorize en- property. The term guard does not include gible applicant of the reasons for the deter- forcement of the CAA by the Executive law enforcement officer positions of the Cap- mination and of the right to respond and to branch. itol Police Board. submit additional information to the em- SUBPART B—VETERANS’ PREFERENCE— Messenger—One whose primary duty is the ploying office, within 15 days of the date of GENERAL PROVISIONS supervision or performance of general mes- the notification. The director of the employ- Sec. senger work (such as running errands, deliv- ing office may, by providing written notice 1.105 Responsibility for administration of ering messages, and answering call bells). to the preference eligible applicant, shorten the period for submitting a response with re- veterans’ preference. SEC. 1.108. VETERANS’ PREFERENCE IN APPOINT- 1.106 Procedures for bringing claims under MENTS TO NON-RESTRICTED COV- spect to an appointment to a particular cov- the VEOA. ERED POSITIONS. ered position, if necessary because of a need SEC. 1.105. RESPONSIBILITY FOR ADMINISTRA- (a) Where an employing office has duly to fill the covered position immediately. TION OF VETERANS’ PREFERENCE. adopted a policy requiring the numerical Should the preference eligible applicant Subject to section 1.106, employing offices scoring or rating of applicants for covered make a timely response, the highest ranking with covered employees or covered positions positions, the employing office shall add individual or group of individuals with au- are responsible for making all veterans’ pref- points to the earned ratings of those pref- thority to make employment decisions on erence determinations, consistent with the erence eligible applicants who receive pass- behalf of the employing office shall render a VEOA. ing scores in an entrance examination, in a final determination of the physical ability of SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS manner that is proportionately comparable the preference eligible applicant to perform UNDER THE VEOA. to the points prescribed in 5 U.S.C. § 3309. For the duties of the position, taking into ac- Applicants for appointment to a covered example, five preference points shall be count the response and any additional infor- position and covered employees may contest granted to preference eligible applicants in a mation provided by the preference eligible adverse veterans’ preference determinations, 100-point system, one point shall be granted applicant. When the employing office has including any determination that a pref- in a 20-point system, and so on. completed its review of the proposed dis- erence eligible applicant is not a qualified (b) In all other situations involving ap- qualification on the basis of physical dis- applicant, pursuant to sections 401–416 of the pointment to a covered position, employing ability, it shall send its findings to the pref- CAA, 2 U.S.C. §§ 1401–1416, and provisions of offices shall consider veterans’ preference erence eligible applicant. law referred to therein; 206a(3) of the CAA, 2 eligibility as an affirmative factor in the em- (c) Nothing in this section shall relieve an U.S.C. §§ 1401, 1316a(3); and the Office’s Proce- ploying office’s determination of who will be employing office of any obligations it may dural Rules. appointed from among qualified applicants. have pursuant to the Americans with Dis- abilities Act (42 U.S.C. § 12101 et seq.) as ap- SUBPART C—VETERANS’ PREFERENCE IN SEC. 1.109. CREDITING EXPERIENCE IN APPOINT- plied by section 102(a)(3) of the Act, 2 U.S.C. APPOINTMENTS MENTS TO COVERED POSITIONS. § 1302(a)(3). Sec. When considering applicants for covered 1.107 Veterans’ preference in appointments to positions in which experience is an element SUBPART D—VETERANS’ PREFERENCE IN restricted covered positions. of qualification, employing offices shall pro- REDUCTIONS IN FORCE 1.108 Veterans’ preference in appointments to vide preference eligible applicants with cred- Sec. non-restricted covered posi- it: 1.111. Definitions applicable in reductions in tions. (a) for time spent in the military service force. 1.109 Crediting experience in appointments to (1) as an extension of time spent in the posi- 1.112. Application of preference in reductions covered positions. tion in which the applicant was employed in force.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00099 Fmt 4637 Sfmt 0655 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8828 CONGRESSIONAL RECORD — SENATE December 10, 2010 1.113. Crediting experience in reductions in does not encompass a termination or other paign or expedition for which a campaign force. personnel action: (1) predicated upon per- badge has been authorized; or 1.114. Waiver of physical requirements in re- formance, conduct or other grounds attrib- (2) the total length of time in active serv- ductions in force. utable to an employee, or (2) involving an ice in the armed forces if he is included 1.115. Transfer of functions. employee who is employed by the employing under 5 U.S.C. § 3501(a)(3)(A), (B), or (C); and SEC. 1.111. DEFINITIONS APPLICABLE IN REDUC- office on a temporary basis, or (3) attrib- (c) a preference eligible covered employee TIONS IN FORCE. utable to a change in party leadership or ma- is entitled to credit for: (a) Competing covered employees are the jority party status within the House of Con- (1) service rendered as an employee of a covered employees within a particular posi- gress where the employee is employed. county committee established pursuant to tion or job classification, at or within a par- C Reg: (e) Reduction in force is any ter- section 8(b) of the Soil Conservation and Al- ticular competitive area, as those terms are mination of a covered employee’s employ- lotment Act or of a committee or association defined below. ment or the reduction in pay and/or position of producers described in section 10(b) of the (b) Competitive area is that portion of the grade of a covered employee for more than 30 Agricultural Adjustment Act; and employing office’s organizational structure, days and that may be required for budgetary (2) service rendered as an employee de- as determined by the employing office, in or workload reasons, changes resulting from scribed in 5 U.S.C. § 2105(c) if such employee which covered employees compete for reten- reorganization, or the need to make room for moves or has moved, on or after January 1, tion. A competitive area must be defined an employee with reemployment or restora- 1966, without a break in service of more than solely in terms of the employing office’s or- tion rights. The term ‘‘reduction in force’’ 3 days, from a position in a nonappropriated ganizational unit(s) and geographical loca- does not encompass a termination or other fund instrumentality of the Department of tion, and it must include all employees with- personnel action: (1) predicated upon per- Defense or the Coast Guard to a position in in the competitive area so defined. A com- formance, conduct or other grounds attrib- the Department of Defense or the Coast petitive area may consist of all or part of an utable to an employee, or (2) involving an Guard, respectively, that is not described in employing office. The minimum competitive employee who is employed by the employing 5 U.S.C. § 2105(c). area is a department or subdivision of the office on a temporary basis. SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS employing office within the local commuting (f) Undue interruption is a degree of inter- IN REDUCTIONS IN FORCE. area. ruption that would prevent the completion (a) If an employing office determines, on (c) Position classifications or job classi- of required work by a covered employee 90 the basis of evidence before it, that a covered fications are determined by the employing days after the employee has been placed in a employee is preference eligible, the employ- office, and shall refer to all covered positions different position under this part. The 90-day ing office shall waive, in determining the within a competitive area that are in the standard should be considered within the al- covered employee’s retention status in a re- same grade, occupational level or classifica- lowable limits of time and quality, taking duction in force: tion, and which are similar enough in duties, into account the pressures of priorities, (1) requirements as to age, height, and qualification requirements, pay schedules, deadlines, and other demands. However, weight, unless the requirement is essential tenure (type of appointment) and working work generally would not be considered to be to the performance of the duties of the posi- conditions so that an employing office may unduly interrupted if a covered employee tion; and reassign the incumbent of one position to needs more than 90 days after the reduction (2) physical requirements if, in the opinion any of the other positions in the position in force to perform the optimum quality or of the employing office, on the basis of evi- classification without undue interruption. quantity of work. The 90-day standard may dence before it, including any recommenda- (d) Preference Eligibles. For the purpose of be extended if placement is made under this tion of an accredited physician submitted by applying veterans’ preference in reductions part to a program accorded low priority by the employee, the preference eligible covered in force, except with respect to the applica- the employing office, or to a vacant position. employee is physically able to perform effi- tion of section 1.114 of these regulations re- SEC. 1.112. APPLICATION OF PREFERENCE IN RE- ciently the duties of the position. garding the waiver of physical requirements, DUCTIONS IN FORCE. (b) If an employing office determines that the following shall apply: Prior to carrying out a reduction in force a covered employee who is a preference eligi- (1) ‘‘active service’’ has the meaning given that will affect covered employees, employ- ble as a disabled veteran as described in 5 it by section 101 of title 37; ing offices shall determine which, if any, U.S.C. § 2108(3)(c) and has a compensable (2) ‘‘a retired member of a uniformed serv- covered employees within a particular group service-connected disability of 30 percent or ice’’ means a member or former member of a of competing covered employees are entitled more is not able to fulfill the physical re- uniformed service who is entitled, under to veterans’ preference eligibility status in quirements of the covered position, the em- statute, to retired, retirement, or retainer accordance with these regulations. In deter- ploying office shall notify the preference eli- pay on account of his/her service as such a mining which covered employees will be re- gible covered employee of the reasons for the member; and tained, employing offices will treat veterans’ determination and of the right to respond (3) a preference eligible covered employee preference as the controlling factor in reten- and to submit additional information to the who is a retired member of a uniformed serv- tion decisions among such competing cov- employing office within 15 days of the date of ice is considered a preference eligible only if ered employees, regardless of length of serv- the notification. Should the preference eligi- (A) his/her retirement was based on dis- ice or performance, provided that the pref- ble covered employee make a timely re- ability— erence eligible employee’s performance has sponse, the highest ranking individual or (i) resulting from injury or disease re- not been determined to be unacceptable. group of individuals with authority to make ceived in line of duty as a direct result of Provided, a preference eligible employee who employment decisions on behalf of the em- armed conflict; or is a ‘‘disabled veteran’’ under section 1.102(h) ploying office, shall render a final deter- (ii) caused by an instrumentality of war above who has a compensable service-con- mination of the physical ability of the pref- and incurred in the line of duty during a pe- nected disability of 30 percent or more and erence eligible covered employee to perform riod of war as defined by sections 101 and 1101 whose performance has not been determined the duties of the covered position, taking of title 38; to be unacceptable by an employing office is into account the evidence before it, includ- (B) his/her service does not include twenty entitled to be retained in preference to other ing the response and any additional informa- or more years of full-time active service, re- preference eligible employees. Provided, this tion provided by the preference eligible. gardless of when performed but not including section does not relieve an employing office When the employing office has completed its periods of active duty for training; or of any greater obligation it may be subject review of the proposed disqualification on (C) on November 30, 1964, he/she was em- to pursuant to the Worker Adjustment and the basis of physical disability, it shall send ployed in a position to which this subchapter Retraining Notification Act (29 U.S.C. § 2101 its findings to the preference eligible covered applies and thereafter he/she continued to be et seq.) as applied by section 102(a)(9) of the employee. so employed without a break in service of CAA, 2 U.S.C. § 1302(a)(9). (c) Nothing in this section shall relieve an more than 30 days. SEC. 1.113. CREDITING EXPERIENCE IN REDUC- employing office of any obligation it may The definition of ‘‘preference eligible’’ as TIONS IN FORCE. have pursuant to the Americans with Dis- set forth in 5 U.S.C § 2108 and section 1.102(o) In computing length of service in connec- abilities Act (42 U.S.C. § 12101 et seq.) as ap- of these regulations shall apply to waivers of tion with a reduction in force, the employing plied by section 102(a)(3) of the CAA, 2 U.S.C. physical requirements in determining an em- office shall provide credit to preference eligi- § 1302(a)(3). ployee’s qualifications for retention under ble covered employees as follows: SEC. 1.115. TRANSFER OF FUNCTIONS. section 1.114 of these regulations. (a) a preference eligible covered employee (a) When a function is transferred from one H&S Regs: (e) Reduction in force is any who is not a retired member of a uniformed employing office to another employing of- termination of a covered employee’s employ- service is entitled to credit for the total fice, each covered employee in the affected ment or the reduction in pay and/or position length of time in active service in the armed position classifications or job classifications grade of a covered employee for more than 30 forces; in the function that is to be transferred shall days and that may be required for budgetary (b) a preference eligible covered employee be transferred to the receiving employing of- or workload reasons, changes resulting from who is a retired member of a uniformed serv- fice for employment in a covered position for reorganization, or the need to make room for ice is entitled to credit for: which he/she is qualified before the receiving an employee with reemployment or restora- (1) the length of time in active service in employing office may make an appointment tion rights. The term ‘‘reduction in force’’ the armed forces during a war, or in a cam- from another source to that position.

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The date of final disposi- promptly provide a written explanation of by another employing office, each covered tion of the charge or the action means the the manner in which veterans’ preference employee in the affected position classifica- latest of the date of expiration of the statu- was applied in the employing office’s ap- tions or job classifications in the employing tory period within which the aggrieved per- pointment decision regarding that applicant. office to be replaced shall be transferred to son may file a complaint with the Office or Such explanation shall include at a min- the replacing employing office for employ- in a U.S. District Court or, where an action imum: ment in a covered position for which he/she is brought against an employing office by (a) the employing office’s veterans’ pref- is qualified before the replacing employing the aggrieved person, the date on which such erence policy or a summary description of office may make an appointment from an- litigation is terminated. the employing office’s veterans’ preference other source to that position. SEC. 1.118. DISSEMINATION OF VETERANS’ PREF- policy as it relates to appointments to cov- ERENCE POLICIES TO APPLICANTS ered positions; and UBPART DOPTION OF ETERANS PREF S E—A V ’ - FOR COVERED POSITIONS. (b) a statement as to whether the applicant ERENCE POLICIES, RECORDKEEPING & INFOR- (a) An employing office shall state in any is preference eligible and, if not, a brief MATIONAL REQUIREMENTS. announcements and advertisements it makes statement of the reasons for the employing Sec. concerning vacancies in covered positions office’s determination that the applicant is 1.116. Adoption of veterans’ preference pol- that the staffing action is governed by the not preference eligible. icy. VEOA. SEC. 1.120. DISSEMINATION OF VETERANS’ PREF- 1.117. Preservation of records made or kept. (b) An employing office shall invite appli- ERENCE POLICIES TO COVERED EM- 1.118. Dissemination of veterans’ preference cants for a covered position to identify PLOYEES. policies to applicants for cov- themselves as veterans’ preference eligible (a) If an employing office that employs one ered positions. applicants, provided that in doing so: or more covered employees provides any 1.119. Information regarding veterans’ pref- (1) the employing office shall state clearly written guidance to such employees con- erence determinations in ap- on any written application or questionnaire cerning employee rights generally or reduc- pointments. used for this purpose or make clear orally, if tions in force more specifically, such as in a 1.120. Dissemination of veterans’ preference a written application or questionnaire is not written employee policy, manual or hand- policies to covered employees. used, that the requested information is in- book, such guidance must include informa- 1.121. Written notice prior to a reduction in tended for use solely in connection with the tion concerning veterans’ preference under force. employing office’s obligations and efforts to the VEOA, as set forth in subsection (b) of SEC. 1.116. ADOPTION OF VETERANS’ PREF- provide veterans’ preference to preference el- this regulation. ERENCE POLICY. igible applicants in accordance with the (b) Written guidances described in sub- No later than 120 calendar days following VEOA; and section (a) above shall include, at a min- Congressional approval of this regulation, (2) the employing office shall state clearly imum: each employing office that employs one or that disabled veteran status is requested on (1) the VEOA definition of veterans’ ‘‘pref- more covered employees or that seeks appli- a voluntary basis, that it will be kept con- erence eligible’’ as set forth in 5 U.S.C. § 2108 cants for a covered position shall adopt its fidential in accordance with the Americans or any superseding legislation, providing the written policy specifying how it has inte- with Disabilities Act (42 U.S.C. § 12101 et seq.) actual, current definition along with the grated the veterans’ preference requirements as applied by section 102(a)(3) of the CAA, 2 statutory citation; of the Veterans Employment Opportunities U.S.C. § 1302(a)(3), that refusal to provide it (2) the employing office’s veterans’ pref- Act of 1998 and these regulations into its em- will not subject the individual to any ad- erence policy or a summary description of ployment and retention processes. Upon verse treatment except the possibility of an the employing office’s veterans’ preference timely request and the demonstration of adverse determination regarding the individ- policy as it relates to reductions in force, in- good cause, the Executive Director, in his/ ual’s status as a preference eligible applicant cluding the procedures the employing office her discretion, may grant such an employing as a disabled veteran under the VEOA, and shall take to identify preference eligible em- office additional time for preparing its pol- that any information obtained in accordance ployees. icy. Each such employing office will make with this section concerning the medical (3) the employing office may provide other its policies available to applicants for ap- condition or history of an individual will be information in its guidances regarding its pointment to a covered position and to cov- collected, maintained and used only in ac- veterans’ preference policies and practices, ered employees in accordance with these reg- cordance with the Americans with Disabil- but is not required to do so by these regula- ulations. The act of adopting a veterans’ ities Act (42 U.S.C. § 12101 et seq.) as applied tions. (c) Employing offices are also expected to preference policy shall not relieve any em- by section 102(a)(3) of the CAA, 2 U.S.C. answer questions from covered employees ploying office of any other responsibility or § 1302(a)(3). that are relevant and non-confidential con- requirement of the Veterans Employment (3) the employing office shall state clearly cerning the employing office’s veterans’ pref- Opportunity Act of 1998 or these regulations. that applicants may request information erence policies and practices. An employing office may amend or replace about the employing office’s veterans’ pref- erence policies as they relate to appoint- SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUC- its veterans’ preference policies as it deems TION IN FORCE. necessary or appropriate, so long as the re- ments to covered positions, and shall de- scribe the employing office’s procedures for (a) Except as provided under subsection (c), sulting policies are consistent with the a covered employee may not be released due VEOA and these regulations. making such requests. (c) Upon written request by an applicant to a reduction in force, unless the covered SEC. 1.117. PRESERVATION OF RECORDS MADE for a covered position, an employing office employee and the covered employee’s exclu- OR KEPT. shall provide the following information in sive representative for collective-bargaining An employing office that employs one or writing: purposes (if any) are given written notice, in more covered employees or that seeks appli- (1) the VEOA definition of veterans’ ‘‘pref- conformance with the requirements of para- cants for a covered position shall maintain erence eligible’’ as set forth in 5 U.S.C. § 2108 graph (b), at least 60 days before the covered any records relating to the application of its or any superseding legislation, providing the employee is so released. veterans’ preference policy to applicants for actual, current definition in a manner de- (b) Any notice under paragraph (a) shall in- covered positions and to workforce adjust- signed to be understood by applicants, along clude— ment decisions affecting covered employees with the statutory citation; (1) the personnel action to be taken with for a period of at least one year from the (2) the employing office’s veterans’ pref- respect to the covered employee involved; date of the making of the record or the date erence policy or a summary description of (2) the effective date of the action; of the personnel action involved or, if later, the employing office’s veterans’ preference (3) a description of the procedures applica- one year from the date on which the appli- policy as it relates to appointments to cov- ble in identifying employees for release; cant or covered employee is notified of the ered positions, including any procedures the (4) the covered employee’s competitive personnel action. Where a claim has been employing office shall use to identify pref- area; brought under section 401 of the CAA against erence eligible employees; (5) the covered employee’s eligibility for an employing office under the VEOA, the re- (3) the employing office may provide other veterans’ preference in retention and how spondent employing office shall preserve all information to applicants regarding its vet- that preference eligibility was determined; personnel records relevant to the claim until erans’ preference policies and practices, but (6) the retention status and preference eli- final disposition of the claim. The term ‘‘per- is not required to do so by these regulations. gibility of the other employees in the af- sonnel records relevant to the claim’’, for ex- (d) Employing offices are also expected to fected position classifications or job classi- ample, would include records relating to the answer questions from applicants for covered fications within the covered employee’s com- veterans’ preference determination regard- positions that are relevant and non-confiden- petitive area, by providing: ing the person bringing the claim and tial concerning the employing office’s vet- (A) a list of all covered employee(s) in the records relating to any veterans’ preference erans’ preference policies and practices. covered employee’s position classification or determinations regarding other applicants SEC. 1.119. INFORMATION REGARDING VET- job classification and competitive area who for the covered position the person sought, ERANS’ PREFERENCE DETERMINA- will be retained by the employing office, or records relating to the veterans’ pref- TIONS IN APPOINTMENTS. identifying those employees by job title only erence determinations regarding other cov- Upon written request by an applicant for a and stating whether each such employee is ered employees in the person’s position or covered position, the employing office shall preference eligible, and

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00101 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8830 CONGRESSIONAL RECORD — SENATE December 10, 2010 (B) a list of all covered employee(s) in the (2) to the Capitol Police Board shall be SEC. 4. REGULATIONS. covered employee’s position classification or considered to be a reference to the Capitol When approved by the House of Represent- job classification and competitive area who Police; atives for the House of Representatives, will not be retained by the employing office, (3) to the Senate Restaurants (which are these regulations will have the prefix ‘‘H.’’ identifying those employees by job title only no longer public entities) shall be dis- When approved by the Senate for the Senate, and stating whether each such employee is regarded; and these regulations will have the prefix ‘‘S.’’ preference eligible. (4) in sections 1.110(b) and 1.121(c), to the When approved by Congress for the other em- (7) a description of any appeal or other director of an employing office shall be con- ploying offices covered by the CAA, these rights which may be available. sidered to be a reference to the head of an regulations will have the prefix ‘‘C.’’ (c) The director of the employing office employing office. In this draft, ‘‘H&S Regs’’ denotes the provi- may, in writing, shorten the period of ad- (b) CROSS REFERENCES TO PROVISIONS OF sions that would be included in the regula- vance notice required under subsection (a), REGULATIONS.—A reference in the issued reg- tions applicable to be made applicable to the with respect to a particular reduction in ulations— House and Senate, and ‘‘C Reg’’ denotes the force, if necessary because of circumstances (1) in paragraphs (l) and (m) of section provisions that would be included in the reg- not reasonably foreseeable. 1.102, to subparagraphs (3) through (8) of ulations to be made applicable to other em- (d) No notice period may be shortened to paragraph (g) of that section shall be consid- ploying offices. less than 30 days under this subsection. ered to be a reference to paragraph (g) of PART 1—Extension of Rights and Protec- that section; f tions Relating to Veterans’ Preference Under (2) in section 1.102(l), to subparagraphs (aa) Title 5, United States Code, to Covered Em- PROVIDING FOR THE APPROVAL through (dd) of section 1.102(g) shall be con- ployees of the Legislative Branch (section OF FINAL REGULATIONS ISSUED sidered to be a reference to subparagraphs 4(c) of the Veterans Employment Opportuni- BY THE OFFICE OF COMPLIANCE (aa) through (dd) of that section (as specified ties Act of 1998) in the regulations classified with an ‘‘H’’ SUBPART A—MATTERS OF GENERAL APPLICA- TO IMPLEMENT THE VETERANS classification); BILITY TO ALL REGULATIONS PROMULGATED EMPLOYMENT OPPORTUNITIES (3) in section 1.102(m), to subparagraphs UNDER SECTION 4 OF THE VEOA ACT OF 1998 (aa) through (ee) of section 1.102(g) shall be considered to be a reference to subpara- Sec. Mrs. GILLIBRAND. Mr. President, I 1.101 Purpose and scope. ask unanimous consent that the Sen- graphs (aa) through (ee) of that section (as specified in the regulations classified with 1.102 Definitions. ate proceed to the immediate consider- an ‘‘S’’ classification); 1.103 Adoption of regulations. ation of S. Res. 700 submitted earlier (4) in section 1.111(d), to section 1.102(o) 1.104 Coordination with section 225 of the today. shall be considered to be a reference to sec- Congressional Accountability The PRESIDING OFFICER. The tion 1.102(p); and Act. clerk will report the resolution by (5) in section 1.112, to section 1.102(h) shall SEC. 1.101. PURPOSE AND SCOPE. title. be considered to be a reference to section (a) Section 4(c) of the VEOA. The Veterans The legislative clerk read as follows: 1.102(i). Employment Opportunities Act (VEOA) ap- (c) CROSS REFERENCES TO OTHER PROVI- plies the rights and protections of sections A resolution (S. Res. 700) to provide for the SIONS OF LAW.—A reference in the issued reg- 2108, 3309 through 3312, and subchapter I of approval of final regulations issued by the ulations— chapter 35 of title 5 U.S.C., to certain cov- Office of Compliance to implement the Vet- (1) to the Veterans Employment Opportu- ered employees within the Legislative erans Employment Opportunities Act of 1998 nities Act shall be considered to be a ref- branch. that apply to the Senate and employees of erence to the Veterans Employment Oppor- (b) Purpose of regulations. The regulations the Senate. tunities Act of 1998; set forth herein are the substantive regula- There being no objection, the Senate (2) to 2 U.S.C. 43d(a) shall be considered to tions that the Board of Directors of the Of- proceeded to consider the resolution. be a reference to section 105(a) of the Second fice of Compliance has promulgated pursuant Mrs. GILLIBRAND. Mr. President, I Supplemental Appropriations Act, 1978; to section 4(c)(4) of the VEOA, in accordance ask unanimous consent the resolution (3) to 2 U.S.C. 1316a(3) shall be considered with the rulemaking procedure set forth in be agreed to, the motion to reconsider to be a reference to section 4(c)(3) of the Vet- section 304 of the CAA (2 U.S.C. § 1384). The erans Employment Opportunities Act of 1998; purpose of subparts B, C and D of these regu- be laid upon the table, and that any (4) to 5 U.S.C. 2108(3)(c) shall be considered lations is to define veterans’ preference and statements be printed in the RECORD. to be a reference to section 2108(3)(C) of title the administration of veterans’ preference as The PRESIDING OFFICER. Without 5, United States Code; applicable to Federal employment in the objection, it is so ordered. (5) to the Americans with Disabilities Act Legislative branch. (5 U.S.C. § 2108, as applied The resolution (S. Res. 700) was shall be considered to be a reference to the by the VEOA). The purpose of subpart E of agreed to, as follows: Americans with Disabilities Act of 1990; these regulations is to ensure that the prin- ciples of the veterans’ preference laws are in- S. RES. 700 (6) to the Soil Conservation and Allotment Act shall be considered to be a reference to tegrated into the existing employment and Resolved, That the following regulations the Soil Conservation and Domestic Allot- retention policies and processes of those em- issued by the Office of Compliance on March ment Act; and ploying offices with employees covered by 21, 2008, and stated in section 4, with the (7) to the Agricultural Adjustment Act the VEOA, and to provide for transparency technical corrections described in section 3 shall be considered to be a reference to the in the application of veterans’ preference in and to the extent applied by section 2, are Agricultural Adjustment Act, reenacted with covered appointment and retention deci- hereby approved: amendments by the Agricultural Marketing sions. Provided, nothing in these regulations SEC. 2. APPLICATION OF REGULATIONS. Agreement Act of 1937. shall be construed so as to require an em- (a) IN GENERAL.—For purposes of applying (d) OTHER CORRECTIONS.—In the issued reg- ploying office to reduce any existing vet- the issued regulations as a body of regula- ulations— erans’ preference rights and protections that tions required by section 304(a)(2)(B)(i) of the (1) in section 1.102(g)(1) (in the regulations it may afford to preference eligible individ- Congressional Accountability Act of 1995 (2 classified with an ‘‘S’’ classification), the uals. U.S.C. 1384(a)(2)(B)(i)), the portions of the ‘‘and’’ at the end shall be disregarded; H Regs: (c) Scope of Regulations. The def- issued regulations that are unclassified or (2) section 1.102(g)(7) (in the regulations inition of ‘‘covered employee’’ in Section 4(c) classified with an ‘‘S’’ designation shall classified with an ‘‘S’’ classification) shall be of the VEOA limits the scope of the statute’s apply to the Senate and employees of the considered to have an ‘‘or’’ at the end; applicability within the Legislative branch. Senate. (3) section 1.109 shall be considered to have The term ‘‘covered employee’’ excludes any (b) DEFINITION.—In this section, the term an ‘‘and’’ after paragraph (a); employee: (1) whose appointment is made by ‘‘employee of the Senate’’ has the meaning (4) the second sentence of section 1.116 the President with the advice and consent of given the term in section 101 of the Congres- shall be disregarded; the Senate; (2) whose appointment is made sional Accountability Act of 1995 (2 U.S.C. (5) section 1.118(b) shall be considered to by a Member of Congress within an employ- 1301), except as limited by the regulations (as have an ‘‘and’’ after paragraph (2) rather ing office, as defined by Sec. 101 (9)(A–C) of corrected under section 3). than paragraph (1); the CAA, 2 U.S.C. § 1301 (9)(A–C) or; (3) whose SEC. 3. TECHNICAL CORRECTIONS. (6) a reference in sections 1.118(c)(1) and appointment is made by a committee or sub- (a) CURRENT NAMES OF OFFICES AND HEADS 1.120(b)(1) to veterans’ ‘‘preference eligible’’ committee of either House of Congress or a OF OFFICES.—A reference in the issued regu- shall be considered to be a reference to joint committee of the House of Representa- lations— ‘‘preference eligible’’; tives and the Senate; or (4) who is appointed (1) to the Capitol Guide Board or the Cap- (7) sections 1.118(c) and 1.120(b) shall be to a position, the duties of which are equiva- itol Guide Service (which no longer exist) considered to have an ‘‘and’’ after paragraph lent to those of a Senior Executive Service shall be considered to be a reference to the (1); and position (within the meaning of section Office of Congressional Accessibility Serv- (8) section 1.121(b)(6)(B) shall be considered 3132(a)(2) of title 5, United States Code). Ac- ices; to have an ‘‘and’’ at the end. cordingly, these regulations shall not apply

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The defi- the Senate; (bb) whose appointment is made (g) above nor any individual described in nition of ‘‘covered employee’’ in Section 4(c) by a Member of Congress; (cc) whose appoint- subparagraphs (aa) through (dd) of paragraph of the VEOA limits the scope of the statute’s ment is made by a committee or sub- (g) above. applicability within the Legislative branch. committee of either House of Congress or a (m) Employee of the Senate includes any The term ‘‘covered employee’’ excludes any joint committee of the House of Representa- employee whose pay is disbursed by the Sec- employee: (1) whose appointment is made by tives and the Senate; or (dd) who is ap- retary of the Senate, but not any such indi- the President with the advice and consent of pointed to a position, the duties of which are vidual employed by any entity listed in sub- the Senate; (2) whose appointment is made equivalent to those of a Senior Executive paragraphs (3) through (8) of paragraph (g) or directed by a Member of Congress within Service position (within the meaning of sec- above nor any individual described in sub- an employing office, as defined by Sec. tion 3132(a)(2) of title 5, United States Code). paragraphs (aa) through (ee) of paragraph (g) 101(9)(A–C) of the CAA, 2 U.S.C. § 1301 (9)(A–C) The term covered employee includes an ap- above. or; (3) whose appointment is made by a com- plicant for employment in a covered position H Regs: (n) Employing office means: (1) mittee or subcommittee of either House of and a former covered employee. the personal office of a Member of the House Congress or a joint committee of the House S. Regs: (g) Covered employee means any of Representatives; (2) a committee of the of Representatives and the Senate; (4) who is employees of (1) the House of Representa- House of Representatives or a joint com- appointed pursuant to 2 U.S.C. § 43d(a); or (5) tives; and (2) the Senate; (3) the Capitol mittee of the House of Representatives and who is appointed to a position, the duties of Guide Board; (4) the Capitol Police Board; (5) the Senate; or (3) any other office headed by which are equivalent to those of a Senior Ex- the Congressional Budget Office; (6) the Of- a person with the final authority to appoint, ecutive Service position (within the meaning fice of the Architect of the Capitol; (7) the hire, discharge, and set the terms, condi- of section 3132(a)(2) of title 5, United States Office of the Attending Physician; and (8) the tions, or privileges of the employment of an Code). Accordingly, these regulations shall Office of Compliance, but does not include an employee of the House of Representatives or not apply to any employing office that only employee (aa) whose appointment is made by the Senate. employs individuals excluded from the defi- the President with the advice and consent of S Regs: (n) Employing office means: (1) nition of covered employee. the Senate; (bb) whose appointment is made the personal office of a Senator; (2) a com- C Reg: (c) Scope of Regulations. The defi- or directed by a Member of Congress; (cc) mittee of the Senate or a joint committee of nition of ‘‘covered employee’’ in Section 4(c) whose appointment is made by a committee the House of Representatives and the Senate; of the VEOA limits the scope of the statute’s or subcommittee of either House of Congress or (3) any other office headed by a person applicability within the Legislative branch. or a joint committee of the House of Rep- with the final authority to appoint, or be di- The term ‘‘covered employee’’ excludes any resentatives and the Senate; (dd) who is ap- rected by a Member of Congress to appoint, employee: (1) whose appointment is made by pointed pursuant to 2 U.S.C. § 43d(a); or (ee) hire, discharge, and set the terms, condi- the President with the advice and consent of who is appointed to a position, the duties of tions, or privileges of the employment of an the Senate; (2) whose appointment is made which are equivalent to those of a Senior Ex- employee of the House of Representatives or by a Member of Congress or by a committee ecutive Service position (within the meaning the Senate. or subcommittee of either House of Congress of section 3132(a)(2) of title 5, United States C Reg: (n) Employing office means: the or a joint committee of the House of Rep- Code). The term covered employee includes Capitol Guide Board, the Capitol Police resentatives and the Senate; or (3) who is ap- an applicant for employment in a covered Board, the Congressional Budget Office, the pointed to a position, the duties of which are position and a former covered employee. Office of the Architect of the Capitol, the Of- equivalent to those of a Senior Executive C Reg: (g) Covered employee means any fice of the Attending Physician, and the Of- Service position (within the meaning of sec- employee of (1) the Capitol Guide Service; (2) fice of Compliance. tion 3132(a)(2) of title 5, United States Code). the Capitol Police; (3) the Congressional (o) Office means the Office of Compliance. Accordingly, these regulations shall not Budget Office; (4) the Office of the Architect (p) Preference eligible means veterans, apply to any employing office that only em- of the Capitol; (5) the Office of the Attending spouses, widows, widowers or mothers who ploys individuals excluded from the defini- Physician; or (6) the Office of Compliance, meet the definition of ‘‘preference eligible’’ tion of covered employee. but does not include an employee: (aa) whose in 5 U.S.C. § 2108(3)(A)–(G). appointment is made by the President with SEC. 1.102. DEFINITIONS. (q) Qualified applicant means an applicant the advice and consent of the Senate; or (bb) Except as otherwise provided in these regu- for a covered position whom an employing whose appointment is made by a Member of lations, as used in these regulations: office deems to satisfy the requisite min- Congress or by a committee or sub- (a) Accredited physician means a doctor of imum job-related requirements of the posi- committee of either House of Congress or a medicine or osteopathy who is authorized to tion. Where the employing office uses an en- joint committee of the House of Representa- practice medicine or surgery (as appropriate) trance examination or evaluation for a cov- tives and the Senate; or (cc) who is ap- by the State in which the doctor practices. ered position that is numerically scored, the pointed to a position, the duties of which are The phrase ‘‘authorized to practice by the term ‘‘qualified applicant’’ shall mean that equivalent to those of a Senior Executive State’’ as used in this section means that the the applicant has received a passing score on Service position (within the meaning of sec- provider must be authorized to diagnose and the examination or evaluation. tion 3132(a)(2) of title 5, United States Code). treat physical or mental health conditions (r) Separated under honorable conditions The term covered employee includes an ap- without supervision by a doctor or other means either an honorable or a general dis- plicant for employment in a covered position health care provider. charge from the armed forces. The Depart- and a former covered employee. ment of Defense is responsible for admin- (b) Act or CAA means the Congressional (h) Covered position means any position Accountability Act of 1995, as amended (Pub. istering and defining military discharges. that is or will be held by a covered employee. (s) Uniformed services means the armed L. 104–1, 109 Stat. 3, 2 U.S.C. §§ 1301–1438). (i) Disabled veteran means a person who forces, the commissioned corps of the Public (c) Active duty or active military duty was separated under honorable conditions Health Service, and the commissioned corps means full-time duty with military pay and from active duty in the armed forces per- of the National Oceanic and Atmospheric Ad- allowances in the armed forces, except (1) for formed at any time and who has established ministration. training or for determining physical fitness the present existence of a service-connected (t) VEOA means the Veterans Employment and (2) for service in the Reserves or Na- disability or is receiving compensation, dis- Opportunities Act of 1998 (Pub. L. 105–339, 112 tional Guard. ability retirement benefits, or pensions be- Stat. 3182). (d) Appointment means an individual’s ap- cause of a public statute administered by the (u) Veterans means persons as defined in 5 pointment to employment in a covered posi- Department of Veterans Affairs or a military U.S.C. § 2108(1), or any superseding legisla- tion, but does not include any personnel ac- department. tion. tion that an employing office takes with re- (j) Employee of the Office of the Architect gard to an existing employee of the employ- of the Capitol includes any employee of the SEC. 1.103. ADOPTION OF REGULATIONS. ing office. Office of the Architect of the Capitol, the Bo- (a) Adoption of regulations. Section (e) Armed forces means the United States tanic Gardens, or the Senate Restaurants. 4(c)(4)(A) of the VEOA generally authorizes Army, Navy, Air Force, Marine Corps, and (k) Employee of the Capitol Police Board the Board to issue regulations to implement Coast Guard. includes any member or officer of the Cap- section 4(c). In addition, section 4(c)(4)(B) of (f) Board means the Board of Directors of itol Police. the VEOA directs the Board to promulgate the Office of Compliance. (l) Employee of the House of Representa- regulations that are ‘‘the same as the most H Regs: (g) Covered employee means any tives includes an individual occupying a po- relevant substantive regulations (applicable employee of (1) the House of Representatives; sition the pay of which is disbursed by the with respect to the Executive branch) pro- and (2) the Senate; (3) the Capitol Guide Clerk of the House of Representatives, or an- mulgated to implement the statutory provi- Board; (4) the Capitol Police Board; (5) the other official designated by the House of sions referred to in paragraph (2)’’ of section Congressional Budget Office; (6) the Office of Representatives, or any employment posi- 4(c) of the VEOA. Those statutory provisions the Architect of the Capitol; (7) the Office of tion in an entity that is paid with funds de- are section 2108, sections 3309 through 3312, the Attending Physician; and (8) the Office of rived from the clerk-hire allowance of the and subchapter I of chapter 35, of title 5,

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Specifically, it is CAA, 2 U.S.C. §§ 1401–1416, and provisions of eligibility as an affirmative factor in the em- the Board’s considered judgment based on law referred to therein; 206a(3) of the CAA, 2 ploying office’s determination of who will be the information available to it at the time of U.S.C. §§ 1401, 1316a(3); and the Office’s Proce- appointed from among qualified applicants. promulgation of these regulations, that, dural Rules. SEC. 1.109. CREDITING EXPERIENCE IN APPOINT- with the exception of the regulations adopt- SUBPART C—VETERANS’ PREFERENCE IN MENTS TO COVERED POSITIONS. ed and set forth herein, there are no other APPOINTMENTS When considering applicants for covered ‘‘substantive regulations (applicable with re- Sec. positions in which experience is an element spect to the Executive branch) promulgated 1.107 Veterans’ preference in appointments to of qualification, employing offices shall pro- to implement the statutory provisions re- restricted covered positions. vide preference eligible applicants with cred- ferred to in paragraph (2)’’ of section 4(c) of 1.108 Veterans’ preference in appointments to it: the VEOA that need be adopted. non-restricted covered posi- (a) for time spent in the military service (b) Modification of substantive regula- tions. tions. As a qualification to the statutory ob- 1.109 Crediting experience in appointments to (1) as an extension of time spent in the posi- ligation to issue regulations that are ‘‘the covered positions. tion in which the applicant was employed same as the most substantive regulations 1.110 Waiver of physical requirements in ap- immediately before his/her entrance into the (applicable with respect to the Executive pointments to covered posi- military service, or (2) on the basis of actual branch)’’, section 4(c)(4)(B) of the VEOA au- tions. duties performed in the military service, or thorizes the Board to ‘‘determine, for good SEC. 1.107. VETERANS’ PREFERENCE IN APPOINT- (3) as a combination of both methods. Em- cause shown and stated together with the MENTS TO RESTRICTED POSITIONS. ploying offices shall credit time spent in the regulation, that a modification of such regu- In each appointment action for the posi- military service according to the method lations would be more effective for the im- tions of custodian, elevator operator, guard, that will be of most benefit to the preference plementation of the rights and protections and messenger (as defined below and collec- eligible applicant. under’’ section 4(c) of the VEOA. tively referred to in these regulations as re- (b) for all experience material to the posi- (c) Rationale for Departure from the Most stricted covered positions) employing offices tion for which the applicant is being consid- Relevant Executive Branch Regulations. The shall restrict competition to preference eli- ered, including experience gained in reli- Board concludes that it must promulgate gible applicants as long as qualified pref- gious, civic, welfare, service, and organiza- regulations accommodating the human re- erence eligible applicants are available. The tional activities, regardless of whether he/ source systems existing in the Legislative provisions of sections 1.109 and 1.110 below she received pay therefor. branch; and that such regulations must take shall apply to the appointment of a pref- SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS into account the fact that the Board does not erence eligible applicant to a restricted cov- IN APPOINTMENTS TO COVERED PO- possess the statutory and Executive Order ered position. The provisions of section 1.108 SITIONS. based government-wide policy making au- shall apply to the appointment of a pref- (a) Subject to (c) below, in determining thority underlying OPM’s counterpart VEOA erence eligible applicant to a restricted cov- qualifications of a preference eligible for ap- regulations governing the Executive branch. ered position, in the event that there is more pointment, an employing office shall waive: OPM’s regulations are designed for the com- than one preference eligible applicant for the (1) with respect to a preference eligible ap- petitive service (defined in 5 U.S.C. position. plicant, requirements as to age, height, and § 2102(a)(2)), which does not exist in the em- Custodian—One whose primary duty is the weight, unless the requirement is essential ploying offices subject to this regulation. performance of cleaning or other ordinary to the performance of the duties of the posi- Therefore, to follow the OPM regulations routine maintenance duties in or about a tion; and would create detailed and complex rules and government building or a building under (2) with respect to a preference eligible ap- procedures for a workforce that does not Federal control, park, monument, or other plicant to whom it has made a conditional exist in the Legislative branch, while pro- Federal reservation. offer of employment, physical requirements Elevator operator—One whose primary viding no VEOA protections to the covered if, in the opinion of the employing office, on duty is the running of freight or passenger Legislative branch employees. We have cho- the basis of evidence before it, including any elevators. The work includes opening and sen to propose specially tailored regulations, recommendation of an accredited physician closing elevator gates and doors, working el- rather than simply to adopt those promul- submitted by the preference eligible appli- evator controls, loading and unloading the gated by OPM, so that we may effectuate cant, the preference eligible applicant is elevator, giving information and directions Congress’ intent in extending the principles physically able to perform efficiently the du- to passengers such as on the location of of- of the veterans’ preference laws to the Legis- ties of the position; fices, and reporting problems in running the lative branch through the VEOA. (b) Subject to (c) below, if an employing of- SEC. 1.104. COORDINATION WITH SECTION 225 OF elevator. Guard—One whose primary duty is the as- fice determines, on the basis of evidence be- THE CONGRESSIONAL ACCOUNT- fore it, including any recommendation of an ABILITY ACT. signment to a station, beat, or patrol area in accredited physician submitted by the pref- Statutory directive. Section 4(c)(4)(C) of a Federal building or a building under Fed- erence eligible applicant, that an applicant the VEOA requires that promulgated regula- eral control to prevent illegal entry of per- to whom it has made a conditional offer of tions must be consistent with section 225 of sons or property; or required to stand watch employment is preference eligible as a dis- the CAA. Among the relevant provisions of at or to patrol a Federal reservation, indus- abled veteran as described in 5 U.S.C. section 225 are subsection (f)(1), which pre- trial area, or other area designated by Fed- § 2108(3)(c) and who has a compensable serv- scribes as a rule of construction that defini- eral authority, in order to protect life and ice-connected disability of 30 percent or tions and exemptions in the laws made appli- property; make observations for detection of more is not able to fulfill the physical re- cable by the CAA shall apply under the CAA, fire, trespass, unauthorized removal of public quirements of the covered position, the em- and subsection (f)(3), which states that the property or hazards to Federal personnel or ploying office shall notify the preference eli- CAA shall not be considered to authorize en- property. The term guard does not include gible applicant of the reasons for the deter- forcement of the CAA by the Executive law enforcement officer positions of the Cap- mination and of the right to respond and to branch. itol Police Board. Messenger—One whose primary duty is the submit additional information to the em- SUBPART B—VETERANS’ PREFERENCE— supervision or performance of general mes- ploying office, within 15 days of the date of GENERAL PROVISIONS senger work (such as running errands, deliv- the notification. The director of the employ- Sec. ering messages, and answering call bells). ing office may, by providing written notice 1.105 Responsibility for administration of SEC. 1.108. VETERANS’ PREFERENCE IN APPOINT- to the preference eligible applicant, shorten veterans’ preference. MENTS TO NON-RESTRICTED COV- the period for submitting a response with re- 1.106 Procedures for bringing claims under ERED POSITIONS. spect to an appointment to a particular cov- the VEOA. (a) Where an employing office has duly ered position, if necessary because of a need SEC. 1.105. RESPONSIBILITY FOR ADMINISTRA- adopted a policy requiring the numerical to fill the covered position immediately. TION OF VETERANS’ PREFERENCE. scoring or rating of applicants for covered Should the preference eligible applicant Subject to section 1.106, employing offices positions, the employing office shall add make a timely response, the highest ranking with covered employees or covered positions points to the earned ratings of those pref- individual or group of individuals with au- are responsible for making all veterans’ pref- erence eligible applicants who receive pass- thority to make employment decisions on erence determinations, consistent with the ing scores in an entrance examination, in a behalf of the employing office shall render a VEOA. manner that is proportionately comparable final determination of the physical ability of SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS to the points prescribed in 5 U.S.C. § 3309. For the preference eligible applicant to perform UNDER THE VEOA. example, five preference points shall be the duties of the position, taking into ac- Applicants for appointment to a covered granted to preference eligible applicants in a count the response and any additional infor- position and covered employees may contest 100-point system, one point shall be granted mation provided by the preference eligible adverse veterans’ preference determinations, in a 20-point system, and so on. applicant. When the employing office has

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00104 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8833 completed its review of the proposed dis- applies and thereafter he/she continued to be et seq.) as applied by section 102(a)(9) of the qualification on the basis of physical dis- so employed without a break in service of CAA, 2 U.S.C. § 1302(a)(9). ability, it shall send its findings to the pref- more than 30 days. SEC. 1.113. CREDITING EXPERIENCE IN REDUC- erence eligible applicant. The definition of ‘‘preference eligible’’ as TIONS IN FORCE. (c) Nothing in this section shall relieve an set forth in 5 U.S.C § 2108 and section 1.102(o) In computing length of service in connec- employing office of any obligations it may of these regulations shall apply to waivers of tion with a reduction in force, the employing have pursuant to the Americans with Dis- physical requirements in determining an em- office shall provide credit to preference eligi- abilities Act (42 U.S.C. § 12101 et seq.) as ap- ployee’s qualifications for retention under ble covered employees as follows: plied by section 102(a)(3) of the Act, 2 U.S.C. section 1.114 of these regulations. (a) a preference eligible covered employee § 1302(a)(3). H&S Regs: (e) Reduction in force is any who is not a retired member of a uniformed termination of a covered employee’s employ- SUBPART D—VETERANS’ PREFERENCE IN service is entitled to credit for the total ment or the reduction in pay and/or position REDUCTIONS IN FORCE length of time in active service in the armed grade of a covered employee for more than 30 Sec. forces; days and that may be required for budgetary (b) a preference eligible covered employee 1.111. Definitions applicable in reductions in or workload reasons, changes resulting from who is a retired member of a uniformed serv- force. reorganization, or the need to make room for ice is entitled to credit for: 1.112. Application of preference in reductions an employee with reemployment or restora- (1) the length of time in active service in in force. tion rights. The term ‘‘reduction in force’’ the armed forces during a war, or in a cam- 1.113. Crediting experience in reductions in does not encompass a termination or other paign or expedition for which a campaign force. personnel action: (1) predicated upon per- badge has been authorized; or 1.114. Waiver of physical requirements in re- formance, conduct or other grounds attrib- (2) the total length of time in active serv- ductions in force. utable to an employee, or (2) involving an ice in the armed forces if he is included 1.115. Transfer of functions. employee who is employed by the employing under 5 U.S.C. § 3501(a)(3)(A), (B), or (C); and SEC. 1.111. DEFINITIONS APPLICABLE IN REDUC- office on a temporary basis, or (3) attrib- TIONS IN FORCE. utable to a change in party leadership or ma- (c) a preference eligible covered employee (a) Competing covered employees are the jority party status within the House of Con- is entitled to credit for: covered employees within a particular posi- gress where the employee is employed. (1) service rendered as an employee of a tion or job classification, at or within a par- C Reg: (e) Reduction in force is any ter- county committee established pursuant to ticular competitive area, as those terms are mination of a covered employee’s employ- section 8(b) of the Soil Conservation and Al- defined below. ment or the reduction in pay and/or position lotment Act or of a committee or association (b) Competitive area is that portion of the grade of a covered employee for more than 30 of producers described in section 10(b) of the employing office’s organizational structure, days and that may be required for budgetary Agricultural Adjustment Act; and as determined by the employing office, in or workload reasons, changes resulting from (2) service rendered as an employee de- which covered employees compete for reten- reorganization, or the need to make room for scribed in 5 U.S.C. § 2105(c) if such employee tion. A competitive area must be defined an employee with reemployment or restora- moves or has moved, on or after January 1, solely in terms of the employing office’s or- tion rights. The term ‘‘reduction in force’’ 1966, without a break in service of more than ganizational unit(s) and geographical loca- does not encompass a termination or other 3 days, from a position in a nonappropriated tion, and it must include all employees with- personnel action: (1) predicated upon per- fund instrumentality of the Department of in the competitive area so defined. A com- formance, conduct or other grounds attrib- Defense or the Coast Guard to a position in petitive area may consist of all or part of an utable to an employee, or (2) involving an the Department of Defense or the Coast employing office. The minimum competitive employee who is employed by the employing Guard, respectively, that is not described in area is a department or subdivision of the office on a temporary basis. 5 U.S.C. § 2105(c). employing office within the local commuting (f) Undue interruption is a degree of inter- SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS area. ruption that would prevent the completion IN REDUCTIONS IN FORCE. (c) Position classifications or job classi- of required work by a covered employee 90 (a) If an employing office determines, on fications are determined by the employing days after the employee has been placed in a the basis of evidence before it, that a covered office, and shall refer to all covered positions different position under this part. The 90-day employee is preference eligible, the employ- within a competitive area that are in the standard should be considered within the al- ing office shall waive, in determining the same grade, occupational level or classifica- lowable limits of time and quality, taking covered employee’s retention status in a re- tion, and which are similar enough in duties, into account the pressures of priorities, duction in force: qualification requirements, pay schedules, deadlines, and other demands. However, (1) requirements as to age, height, and tenure (type of appointment) and working work generally would not be considered to be weight, unless the requirement is essential conditions so that an employing office may unduly interrupted if a covered employee to the performance of the duties of the posi- reassign the incumbent of one position to needs more than 90 days after the reduction tion; and any of the other positions in the position in force to perform the optimum quality or (2) physical requirements if, in the opinion classification without undue interruption. quantity of work. The 90-day standard may of the employing office, on the basis of evi- (d) Preference Eligibles. For the purpose of be extended if placement is made under this dence before it, including any recommenda- applying veterans’ preference in reductions part to a program accorded low priority by tion of an accredited physician submitted by in force, except with respect to the applica- the employing office, or to a vacant position. the employee, the preference eligible covered tion of section 1.114 of these regulations re- SEC. 1.112. APPLICATION OF PREFERENCE IN RE- employee is physically able to perform effi- garding the waiver of physical requirements, DUCTIONS IN FORCE. ciently the duties of the position. the following shall apply: Prior to carrying out a reduction in force (b) If an employing office determines that (1) ‘‘active service’’ has the meaning given that will affect covered employees, employ- a covered employee who is a preference eligi- it by section 101 of title 37; ing offices shall determine which, if any, ble as a disabled veteran as described in 5 (2) ‘‘a retired member of a uniformed serv- covered employees within a particular group U.S.C. § 2108(3)(c) and has a compensable ice’’ means a member or former member of a of competing covered employees are entitled service-connected disability of 30 percent or uniformed service who is entitled, under to veterans’ preference eligibility status in more is not able to fulfill the physical re- statute, to retired, retirement, or retainer accordance with these regulations. In deter- quirements of the covered position, the em- pay on account of his/her service as such a mining which covered employees will be re- ploying office shall notify the preference eli- member; and tained, employing offices will treat veterans’ gible covered employee of the reasons for the (3) a preference eligible covered employee preference as the controlling factor in reten- determination and of the right to respond who is a retired member of a uniformed serv- tion decisions among such competing cov- and to submit additional information to the ice is considered a preference eligible only if ered employees, regardless of length of serv- employing office within 15 days of the date of (A) his/her retirement was based on dis- ice or performance, provided that the pref- the notification. Should the preference eligi- ability— erence eligible employee’s performance has ble covered employee make a timely re- (i) resulting from injury or disease re- not been determined to be unacceptable. sponse, the highest ranking individual or ceived in line of duty as a direct result of Provided, a preference eligible employee who group of individuals with authority to make armed conflict; or is a ‘‘disabled veteran’’ under section 1.102(h) employment decisions on behalf of the em- (ii) caused by an instrumentality of war above who has a compensable service-con- ploying office, shall render a final deter- and incurred in the line of duty during a pe- nected disability of 30 percent or more and mination of the physical ability of the pref- riod of war as defined by sections 101 and 1101 whose performance has not been determined erence eligible covered employee to perform of title 38; to be unacceptable by an employing office is the duties of the covered position, taking (B) his/her service does not include twenty entitled to be retained in preference to other into account the evidence before it, includ- or more years of full-time active service, re- preference eligible employees. Provided, this ing the response and any additional informa- gardless of when performed but not including section does not relieve an employing office tion provided by the preference eligible. periods of active duty for training; or of any greater obligation it may be subject When the employing office has completed its (C) on November 30, 1964, he/she was em- to pursuant to the Worker Adjustment and review of the proposed disqualification on ployed in a position to which this subchapter Retraining Notification Act (29 U.S.C. § 2101 the basis of physical disability, it shall send

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00105 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE S8834 CONGRESSIONAL RECORD — SENATE December 10, 2010 its findings to the preference eligible covered of the personnel action involved or, if later, the employing office’s veterans’ preference employee. one year from the date on which the appli- policy as it relates to appointments to cov- (c) Nothing in this section shall relieve an cant or covered employee is notified of the ered positions, including any procedures the employing office of any obligation it may personnel action. Where a claim has been employing office shall use to identify pref- have pursuant to the Americans with Dis- brought under section 401 of the CAA against erence eligible employees; abilities Act (42 U.S.C. § 12101 et seq.) as ap- an employing office under the VEOA, the re- (3) the employing office may provide other plied by section 102(a)(3) of the CAA, 2 U.S.C. spondent employing office shall preserve all information to applicants regarding its vet- § 1302(a)(3). personnel records relevant to the claim until erans’ preference policies and practices, but SEC. 1.115. TRANSFER OF FUNCTIONS. final disposition of the claim. The term ‘‘per- is not required to do so by these regulations. (a) When a function is transferred from one sonnel records relevant to the claim’’, for ex- (d) Employing offices are also expected to employing office to another employing of- ample, would include records relating to the answer questions from applicants for covered fice, each covered employee in the affected veterans’ preference determination regard- positions that are relevant and non-confiden- position classifications or job classifications ing the person bringing the claim and tial concerning the employing office’s vet- in the function that is to be transferred shall records relating to any veterans’ preference erans’ preference policies and practices. determinations regarding other applicants be transferred to the receiving employing of- SEC. 1.119. INFORMATION REGARDING VET- for the covered position the person sought, fice for employment in a covered position for ERANS’ PREFERENCE DETERMINA- or records relating to the veterans’ pref- which he/she is qualified before the receiving TIONS IN APPOINTMENTS. erence determinations regarding other cov- employing office may make an appointment Upon written request by an applicant for a ered employees in the person’s position or covered position, the employing office shall from another source to that position. job classification. The date of final disposi- (b) When one employing office is replaced promptly provide a written explanation of tion of the charge or the action means the by another employing office, each covered the manner in which veterans’ preference latest of the date of expiration of the statu- was applied in the employing office’s ap- employee in the affected position classifica- tory period within which the aggrieved per- tions or job classifications in the employing pointment decision regarding that applicant. son may file a complaint with the Office or Such explanation shall include at a min- office to be replaced shall be transferred to in a U.S. District Court or, where an action the replacing employing office for employ- imum: is brought against an employing office by (a) the employing office’s veterans’ pref- ment in a covered position for which he/she the aggrieved person, the date on which such is qualified before the replacing employing erence policy or a summary description of litigation is terminated. the employing office’s veterans’ preference office may make an appointment from an- SEC. 1.118. DISSEMINATION OF VETERANS’ PREF- other source to that position. policy as it relates to appointments to cov- ERENCE POLICIES TO APPLICANTS ered positions; and FOR COVERED POSITIONS. SUBPART E—ADOPTION OF VETERANS’ PREF- (b) a statement as to whether the applicant (a) An employing office shall state in any ERENCE POLICIES, RECORDKEEPING & INFOR- is preference eligible and, if not, a brief announcements and advertisements it makes MATIONAL REQUIREMENTS. statement of the reasons for the employing Sec. concerning vacancies in covered positions that the staffing action is governed by the office’s determination that the applicant is 1.116. Adoption of veterans’ preference pol- not preference eligible. icy. VEOA. (b) An employing office shall invite appli- SEC. 1.120. DISSEMINATION OF VETERANS’ PREF- 1.117. Preservation of records made or kept. ERENCE POLICIES TO COVERED EM- 1.118. Dissemination of veterans’ preference cants for a covered position to identify themselves as veterans’ preference eligible PLOYEES. policies to applicants for cov- applicants, provided that in doing so: (a) If an employing office that employs one ered positions. or more covered employees provides any 1.119. Information regarding veterans’ pref- (1) the employing office shall state clearly on any written application or questionnaire written guidance to such employees con- erence determinations in ap- used for this purpose or make clear orally, if cerning employee rights generally or reduc- pointments. a written application or questionnaire is not tions in force more specifically, such as in a 1.120. Dissemination of veterans’ preference written employee policy, manual or hand- policies to covered employees. used, that the requested information is in- tended for use solely in connection with the book, such guidance must include informa- 1.121. Written notice prior to a reduction in tion concerning veterans’ preference under force. employing office’s obligations and efforts to provide veterans’ preference to preference el- the VEOA, as set forth in subsection (b) of SEC. 1.116. ADOPTION OF VETERANS’ PREF- igible applicants in accordance with the this regulation. ERENCE POLICY. VEOA; and (b) Written guidances described in sub- No later than 120 calendar days following (2) the employing office shall state clearly section (a) above shall include, at a min- Congressional approval of this regulation, that disabled veteran status is requested on imum: each employing office that employs one or a voluntary basis, that it will be kept con- (1) the VEOA definition of veterans’ ‘‘pref- more covered employees or that seeks appli- fidential in accordance with the Americans erence eligible’’ as set forth in 5 U.S.C. § 2108 cants for a covered position shall adopt its with Disabilities Act (42 U.S.C. § 12101 et seq.) or any superseding legislation, providing the written policy specifying how it has inte- as applied by section 102(a)(3) of the CAA, 2 actual, current definition along with the grated the veterans’ preference requirements U.S.C. § 1302(a)(3), that refusal to provide it statutory citation; of the Veterans Employment Opportunities will not subject the individual to any ad- (2) the employing office’s veterans’ pref- Act of 1998 and these regulations into its em- verse treatment except the possibility of an erence policy or a summary description of ployment and retention processes. Upon adverse determination regarding the individ- the employing office’s veterans’ preference timely request and the demonstration of ual’s status as a preference eligible applicant policy as it relates to reductions in force, in- good cause, the Executive Director, in his/ as a disabled veteran under the VEOA, and cluding the procedures the employing office her discretion, may grant such an employing that any information obtained in accordance shall take to identify preference eligible em- office additional time for preparing its pol- with this section concerning the medical ployees. icy. Each such employing office will make condition or history of an individual will be (3) the employing office may provide other its policies available to applicants for ap- collected, maintained and used only in ac- information in its guidances regarding its pointment to a covered position and to cov- cordance with the Americans with Disabil- veterans’ preference policies and practices, ered employees in accordance with these reg- ities Act (42 U.S.C. § 12101 et seq.) as applied but is not required to do so by these regula- ulations. The act of adopting a veterans’ by section 102(a)(3) of the CAA, 2 U.S.C. tions. preference policy shall not relieve any em- § 1302(a)(3). (c) Employing offices are also expected to ploying office of any other responsibility or (3) the employing office shall state clearly answer questions from covered employees requirement of the Veterans Employment that applicants may request information that are relevant and non-confidential con- Opportunity Act of 1998 or these regulations. about the employing office’s veterans’ pref- cerning the employing office’s veterans’ pref- An employing office may amend or replace erence policies as they relate to appoint- erence policies and practices. its veterans’ preference policies as it deems ments to covered positions, and shall de- SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUC- necessary or appropriate, so long as the re- scribe the employing office’s procedures for TION IN FORCE. sulting policies are consistent with the making such requests. (a) Except as provided under subsection (c), VEOA and these regulations. (c) Upon written request by an applicant a covered employee may not be released due SEC. 1.117. PRESERVATION OF RECORDS MADE for a covered position, an employing office to a reduction in force, unless the covered OR KEPT. shall provide the following information in employee and the covered employee’s exclu- An employing office that employs one or writing: sive representative for collective-bargaining more covered employees or that seeks appli- (1) the VEOA definition of veterans’ ‘‘pref- purposes (if any) are given written notice, in cants for a covered position shall maintain erence eligible’’ as set forth in 5 U.S.C. § 2108 conformance with the requirements of para- any records relating to the application of its or any superseding legislation, providing the graph (b), at least 60 days before the covered veterans’ preference policy to applicants for actual, current definition in a manner de- employee is so released. covered positions and to workforce adjust- signed to be understood by applicants, along (b) Any notice under paragraph (a) shall in- ment decisions affecting covered employees with the statutory citation; clude— for a period of at least one year from the (2) the employing office’s veterans’ pref- (1) the personnel action to be taken with date of the making of the record or the date erence policy or a summary description of respect to the covered employee involved;

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00106 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — SENATE S8835 (2) the effective date of the action; their farewell remarks on the dates and DEPARTMENT OF JUSTICE (3) a description of the procedures applica- times indicated: RIPLEY RAND, OF NORTH CAROLINA, TO BE UNITED ble in identifying employees for release; Senator GREGG, 25 minutes at 2:15 STATES ATTORNEY FOR THE MIDDLE DISTRICT OF (4) the covered employee’s competitive p.m., Tuesday, December 14; Senator NORTH CAROLINA FOR THE TERM OF FOUR YEARS. area; CHARLES M. OBERLY III, OF DELAWARE, TO BE UNITED BAYH, 20 minutes at 10 a.m., Wednes- STATES ATTORNEY FOR THE DISTRICT OF DELAWARE (5) the covered employee’s eligibility for day, December 15; Senator LINCOLN, 30 FOR THE TERM OF FOUR YEARS. veterans’ preference in retention and how WILLIAM CONNER ELDRIDGE, OF ARKANSAS, TO BE that preference eligibility was determined; minutes at 2:30 p.m., Wednesday, De- UNITED STATES ATTORNEY FOR THE WESTERN DIS- cember 15; further, that if rule XXII is TRICT OF ARKANSAS FOR THE TERM OF FOUR YEARS. (6) the retention status and preference eli- FRANK LEON-GUERRERO, OF GUAM, TO BE UNITED gibility of the other employees in the af- in effect that the time be charged ac- STATES MARSHAL FOR THE DISTRICT OF GUAM AND fected position classifications or job classi- cordingly. CONCURRENTLY UNITED STATES MARSHAL FOR THE The PRESIDING OFFICER. Without DISTRICT OF THE NORTHERN MARIANA ISLANDS FOR fications within the covered employee’s com- THE TERM OF FOUR YEARS. petitive area, by providing: objection, it is so ordered. CHARLES THOMAS WEEKS II, OF OKLAHOMA, TO BE (A) a list of all covered employee(s) in the f UNITED STATES MARSHAL FOR THE WESTERN DISTRICT covered employee’s position classification or OF OKLAHOMA FOR THE TERM OF FOUR YEARS. KENNETH F. BOHAC, OF ILLINOIS, TO BE UNITED job classification and competitive area who ORDERS FOR MONDAY, DECEMBER STATES MARSHAL FOR THE CENTRAL DISTRICT OF ILLI- will be retained by the employing office, 13, 2010 NOIS FOR THE TERM OF FOUR YEARS. identifying those employees by job title only Mrs. GILLIBRAND. Mr. President, I and stating whether each such employee is IN THE AIR FORCE ask unanimous consent that when the preference eligible, and THE FOLLOWING NAMED OFFICER FOR APPOINTMENT (B) a list of all covered employee(s) in the Senate completes its business today, it IN THE UNITED STATES AIR FORCE TO THE GRADE INDI- adjourn until 2 p.m. on Monday, De- CATED WHILE ASSIGNED TO A POSITION OF IMPORTANCE covered employee’s position classification or AND RESPONSIBILITY UNDER TITLE 10, U.S.C., SECTION job classification and competitive area who cember 13; that following the prayer 601: will not be retained by the employing office, and pledge, the Journal of proceedings identifying those employees by job title only be approved to date, the morning hour To be general and stating whether each such employee is be deemed expired, the time for the two GEN. CLAUDE R. KEHLER preference eligible. leaders be reserved for their use later IN THE COAST GUARD (7) a description of any appeal or other in the day, and that following any lead- rights which may be available. THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT (c) The director of the employing office er remarks, the Senate resume consid- IN THE UNITED STATES COAST GUARD TO THE GRADE IN- DICATED UNDER TITLE 14, U.S.C., SECTION 271: may, in writing, shorten the period of ad- eration of the motion to concur with vance notice required under subsection (a), respect to H.R. 4853, the vehicle for the To be rear admiral (lower half) with respect to a particular reduction in tax compromise, with the time until 3 CAPTAIN BRUCE D. BAFFER force, if necessary because of circumstances p.m. equally divided and controlled be- CAPTAIN DAVID R. CALLAHAN not reasonably foreseeable. tween the two leaders or their des- CAPTAIN RICHARD T. GROMLICH (d) No notice period may be shortened to ignees; and that at 3 p.m. the Senate CAPTAIN FREDERICK J. KENNEY less than 30 days under this subsection. CAPTAIN MARSHALL B. LYTLE proceed to a vote, as provided for under CAPTAIN STEPHEN P. METRUCK f the previous order. CAPTAIN FRED M. MIDGETTE The PRESIDING OFFICER. Without COAST GUARD NOMINATIONS BEGINNING WITH GREG- MEASURE READ THE FIRST ORY J. HALL AND ENDING WITH JOSEPH T. BENIN, WHICH TIME—S. 4023 objection, it is so ordered. NOMINATIONS WERE RECEIVED BY THE SENATE AND AP- f PEARED IN THE CONGRESSIONAL RECORD ON SEP- Mrs. GILLIBRAND. Mr. President, I TEMBER 23, 2010. understand that S. 4023, introduced PROGRAM COAST GUARD NOMINATION OF ANDREW C. KIRK- PATRICK, TO BE LIEUTENANT. earlier today by Senator LIEBERMAN, is Mrs. GILLIBRAND. Mr. President, COAST GUARD NOMINATIONS BEGINNING WITH JULIA at the desk and I ask for its first read- A. HEIN AND ENDING WITH SUSAN L. SUBOCZ, WHICH there will be a rollcall vote at 3 p.m. on NOMINATIONS WERE RECEIVED BY THE SENATE AND AP- ing. Monday on the motion to invoke clo- PEARED IN THE CONGRESSIONAL RECORD ON SEP- The PRESIDING OFFICER. The ture on the motion to concur with the TEMBER 29, 2010. COAST GUARD NOMINATIONS BEGINNING WITH THOM- clerk will read the title of the bill for Reid-McConnell amendment in the AS ALLAN AND ENDING WITH AYLWYN S. YOUNG, WHICH the first time. House amendment to the Senate NOMINATIONS WERE RECEIVED BY THE SENATE AND AP- PEARED IN THE CONGRESSIONAL RECORD ON SEP- The legislative clerk read as follows: amendment to H.R. 4853. TEMBER 29, 2010. A bill (S. 4023) to provide for the repeal of f COAST GUARD NOMINATIONS BEGINNING WITH JOSEPH the Department of Defense policy concerning B. ABEYTA AND ENDING WITH DAVID K. YOUNG, WHICH ADJOURNMENT UNTIL MONDAY, NOMINATIONS WERE RECEIVED BY THE SENATE AND AP- homosexuality in the Armed Forces known PEARED IN THE CONGRESSIONAL RECORD ON NOVEMBER as ‘‘Don’t Ask, Don’t Tell’’. DECEMBER 13, 2010, AT 2 P.M. 18, 2010. COAST GUARD NOMINATIONS BEGINNING WITH STE- Mrs. GILLIBRAND. Mr. President, I Mrs. GILLIBRAND. Mr. President, if PHEN ADLER AND ENDING WITH SCOTT A. WOOLSEY, now ask for its second reading and ob- there is no further business to come be- WHICH NOMINATIONS WERE RECEIVED BY THE SENATE AND APPEARED IN THE CONGRESSIONAL RECORD ON NO- ject to my own request. fore the Senate, I ask unanimous con- VEMBER 18, 2010. The PRESIDING OFFICER. Objec- sent that it adjourn under the previous tion having been heard, the bill will re- order. NATIONAL OCEANIC AND ATMOSPHERIC ceive its second reading on the next There being no objection, the Senate, ADMINISTRATION legislative day. at 7:12 p.m., adjourned until Monday, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRA- December 13, 2010, at 2 p.m. TION NOMINATIONS BEGINNING WITH DENISE J. GRUCCIO f AND ENDING WITH LINDSAY R. KURELJA, WHICH NOMI- f NATIONS WERE RECEIVED BY THE SENATE AND AP- ORDER OF PROCEDURE PEARED IN THE CONGRESSIONAL RECORD ON NOVEMBER CONFIRMATIONS 17, 2010. Mrs. GILLIBRAND. Mr. President, I THE ABOVE NOMINATIONS WERE APPROVED SUBJECT TO THE NOMINEES’ COMMITMENT TO RESPOND TO RE- ask unanimous consent that the fol- Executive nominations confirmed by QUESTS TO APPEAR AND TESTIFY BEFORE ANY DULY lowing Senators be recognized to make the Senate, December 10, 2010: CONSTITUTED COMMITTEE OF THE SENATE.

VerDate Mar 15 2010 02:48 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00107 Fmt 4637 Sfmt 9801 E:\RECORD10\RECFILES\S10DE0.REC S10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE Friday, December 10, 2010 Daily Digest Senate the nature of a substitute, and the following amend- Chamber Action ment proposed thereto: Pages S8809–24 Routine Proceedings, pages S8729–S8835 Gillibrand (for Akaka) Amendment No. 4760, in Measures Introduced: Two bills and three resolu- the nature of a substitute. Page S8817 tions were introduced, as follows: S. 4023–4024, S.J. Veterans Employment Opportunities Act: Senate Res. 41, S. Res. 700, and S. Con. Res. 77. agreed to S. Con. Res. 77, to provide for the ap- Pages S8786–87 proval of final regulations issued by the Office of Measures Reported: Compliance to implement the Veterans Employment Special Report entitled ‘‘Activities of the Com- Opportunities Act of 1998 that apply to certain leg- mittee on Homeland Security and Governmental Af- islative branch employing offices and their covered fairs’’. (S. Rept. No. 111–360) employees. Pages S8825–30 S. 787, to amend the Federal Water Pollution Veterans Employment Opportunities Act: Senate Control Act to clarify the jurisdiction of the United agreed to S. Res. 700, to provide for the approval States over waters of the United States, with an amendment in the nature of a substitute. (S. Rept. of final regulations issued by the Office of Compli- No. 111–361) ance to implement the Veterans Employment Op- S. 1748, to establish a program of research, recov- portunities Act of 1998 that apply to the Senate and ery, and other activities to provide for the recovery employees of the Senate. Pages S8830–35 of the southern sea otter, with an amendment in the House Messages: nature of a substitute. (S. Rept. No. 111–362) CAPTA Reauthorization Act: Senate concurred S. 3605, to invest in innovation through research in the amendment of the House of Representatives and development, to improve the competitiveness of to S. 3817, to amend the Child Abuse Prevention the United States, with an amendment in the nature and Treatment Act, the Family Violence Prevention of a substitute. (S. Rept. No. 111–363) and Services Act, the Child Abuse Prevention and S. 3806, to protect Federal employees and visitors, Treatment and Adoption Reform Act of 1978, and improve the security of Federal facilities and author- the Abandoned Infants Assistance Act of 1988 to re- ize and modernize the Federal Protective Service, authorize the Acts. Pages S8807–09 with an amendment in the nature of a substitute. Airport and Airway Extension Act—Agree- Page S8786 ment: A unanimous-consent agreement was reached Measures Passed: providing that at approximately 2 p.m., on Monday, Johanna’s Law: Senate passed H.R. 2941, to re- December 13, 2010, Senate resume consideration of authorize and enhance Johanna’s Law to increase the amendment of the House of Representatives to public awareness and knowledge with respect to the amendment of the Senate to H.R. 4853, to gynecologic cancers, after agreeing to the committee amend the Internal Revenue Code of 1986 to extend amendment in the nature of a substitute. Page S8809 the funding and expenditure authority of the Airport Whistleblower Protection Enhancement Act: Sen- and Airway Trust Fund, to amend title 49, United ate passed S. 372, to amend chapter 23 of title 5, States Code, to extend authorizations for the airport United States Code, to clarify the disclosures of in- improvement program, with the time until 3 p.m. formation protected from prohibited personnel prac- equally divided and controlled between the two tices, require a statement in nondisclosure policies, Leaders, or their designees; and that at 3 p.m., Sen- forms, and agreements that such policies, forms, and ate vote on the motion to invoke cloture on Reid agreements conform with certain disclosure protec- motion to concur in the amendment of the House tions, provide certain authority for the Special Coun- to the amendment of the Senate to the bill, with sel, after agreeing to the committee amendment in Reid/McConnell Amendment No. 4753. Page S8835 D1181

VerDate Mar 15 2010 02:49 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\RECORD10\RECFILES\D10DE0.REC D10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE D1182 CONGRESSIONAL RECORD — DAILY DIGEST December 10, 2010 Senators Farewell Remarks—Agreement: A Kenneth F. Bohac, of Illinois, to be United States unanimous-consent-time agreement was reached pro- Marshal for the Central District of Illinois for the viding that the following Senators be recognized to term of four years. make their farewell remarks on the dates and times 1 Air Force nomination in the rank of general. indicated: Senator Gregg at 2:15 p.m., on Tuesday, 7 Coast Guard nominations in the rank of admi- December 14, 2010, for 25 minutes; Senator Bayh ral. at 10 a.m., on Wednesday, December 15, 2010, for Routine lists in the Coast Guard, and National 20 minutes; and Senator Lincoln at 2:30 p.m., on Oceanic and Atmospheric Administration. Wednesday, December 15, 2010, for 30 minutes; Pages S8807, S8835 provided further, that if rule XXII is in effect, then Messages from the House: Page S8784 Page S8835 the time be charged accordingly. Measures Read the First Time: Pages S8784, S8835 Nominations Confirmed: Senate confirmed the fol- Enrolled Bills Presented: Page S8784 lowing nominations: Frank Leon-Guerrero, of Guam, to be United Executive Communications: Pages S8784–86 States Marshal for the District of Guam and concur- Additional Cosponsors: Page S8787 rently United States Marshal for the District of the Statements on Introduced Bills/Resolutions: Northern Mariana Islands for the term of four years. Pages S8787–98 Charles Thomas Weeks II, of Oklahoma, to be Additional Statements: Page S8784 United States Marshal for the Western District of Oklahoma for the term of four years. Amendments Submitted: Pages S8798–S8807 Ripley Rand, of North Carolina, to be United Adjournment: Senate convened at 9:30 a.m. and States Attorney for the Middle District of North adjourned at 7:12 p.m., until 2 p.m. on Monday, Carolina for the term of four years. December 13, 2010. (For Senate’s program, see the Charles M. Oberly III, of Delaware, to be United remarks of the Acting Majority Leader in today’s States Attorney for the District of Delaware for the Record on page S8835.) term of four years. William Conner Eldridge, of Arkansas, to be Committee Meetings United States Attorney for the Western District of Arkansas for the term of four years. (Committees not listed did not meet) No committee meetings were held. h House of Representatives Chamber Action NEW PUBLIC LAWS (For last listing of Public Laws, see DAILY DIGEST, p. D1159) The House was not in session today. The House is scheduled to meet at 10 a.m. on Monday, Decem- H.R. 4783, Claims Resolution Act of 2010. ber 13, 2010 in pro forma session. Signed on December 8, 2010. (Public Law 111–291) H.R. 1722, to require the head of each executive agency to establish and implement a policy under Committee Meetings which employees shall be authorized to telework. No committee meetings were held. Signed on December 9, 2010. (Public Law 111–292) H.R. 5283, to provide for adjustment of status for certain Haitian orphans paroled into the United Joint Meetings States after the earthquake of January 12, 2010. Signed on December 9, 2010. (Public Law 111–293) No joint committee meetings were held. H.R. 5566, to amend title 18, United States Code, to prohibit interstate commerce in animal crush videos. Signed on December 9, 2010. (Public Law 111–294)

VerDate Mar 15 2010 02:49 Jun 10, 2011 Jkt 099060 PO 00000 Frm 00002 Fmt 0627 Sfmt 0627 E:\RECORD10\RECFILES\D10DE0.REC D10DE0 bjneal on DSK2TWX8P1PROD with CONG-REC-ONLINE December 10, 2010 CONGRESSIONAL RECORD — DAILY DIGEST D1183 S. 3689, to clarify, improve, and correct the laws Government of the United States of America and the relating to copyrights. Signed on December 9, 2010. Government of the Republic of Rwanda Concerning the (Public Law 111–295) Encouragement and Reciprocal Protection of Investment, signed at Kigali on February 19, 2008 (Treaty Doc. f 110–23), international Treaty on Plant Genetic Resources CONGRESSIONAL PROGRAM AHEAD for Food and Agriculture, adopted by the Food and Agri- culture Organization of the United Nations on November Week of December 13 through December 18, 3, 2001, and signed by the United States on November 2010 1, 2002 (the ‘‘Treaty’’) (Treaty Doc. 110–19), and the Senate Chamber nominations of Thomas R. Nides, of the District of Co- lumbia, to be Deputy Secretary for Management and Re- On Monday, at 2 p.m., Senate will resume consid- sources, William R. Brownfield, of Texas, to be Assistant eration of the amendment of the House of Rep- Secretary for International Narcotics and Law Enforce- resentatives to the amendment of the Senate to H.R. ment Affairs, Suzan D. Johnson Cook, of New York, to 4853, Airport and Airway Extension Act, and after be Ambassador at Large for International Religious Free- a period of debate, vote on the motion to invoke clo- dom, Larry Leon Palmer, of Georgia, to be Ambassador ture on Reid motion to concur in the amendment of to the Bolivarian Republic of Venezuela, Gregory J. the House to the amendment of the Senate to the Nickels, of Washington, to be an Alternate Representa- bill, with Reid/McConnell Amendment No. 4753, at tive to the Sixty-fifth Session of the General Assembly of 3 p.m. During the balance of the week, Senate may the United Nations, Carol Fulp, of Massachusetts, to be a Representative to the Sixty-fifth Session of the General consider any cleared legislative and executive busi- Assembly of the United Nations, Jeanne Shaheen, of New ness. Hampshire, to be a Representative to the Sixty-fifth Ses- Senate Committees sion of the General Assembly of the United Nations, and Roger F. Wicker, of Mississippi, to be a Representative (Committee meetings are open unless otherwise indicated) to the Sixty-fifth Session of the General Assembly of the Committee on Banking, Housing, and Urban Affairs: De- United Nations, all of the Department of State, Paige Eve cember 14, business meeting to consider the nomination Alexander, of Georgia, to be an Assistant Administrator of Joseph A. Smith, Jr., of North Carolina, to be Director of the United States Agency for International Develop- of the Federal Housing Finance Agency, Time to be an- ment, and Alan J. Patricof, of New York, and Mark nounced, S–216, Capitol. Green, of Wisconsin, both to be a Member of the Board Committee on Foreign Relations: December 14, business of Directors of the Millennium Challenge Corporation, meeting to consider S. 2982, to combat international vio- and a routine list in the Foreign Service, 2:15 p.m., lence against women and girls, S. 3688, to establish an S–116, Capitol. international professional exchange program, S. 1633, to Select Committee on Intelligence: December 16, to hold require the Secretary of Homeland Security, in consulta- closed hearings to examine certain intelligence matters, tion with the Secretary of State, to establish a program 2:30 p.m., SH–219. to issue Asia-Pacific Economic Cooperation Business Travel Cards, S. 3798, to authorize appropriations of House Committees United States assistance to help eliminate conditions in foreign prisons and other detention facilities that do not Committee on Agriculture, December 15, Subcommittee meet minimum human standards of health, sanitation, on General Farm Commodities and Risk Management, and safety, S. Con. Res. 71, recognizing the United States hearing to review implementation of provisions of the national interest in helping to prevent and mitigate acts Dodd-Frank Wall Street Reform and Consumer Protec- of genocide and other mass atrocities against civilians, tion Act relating to position limits, 10 a.m., 1300 Long- and supporting and encouraging efforts to develop a worth. whole of government approach to prevent and mitigate Committee on the Judiciary, December 15, to continue such acts, S. Res. 680, supporting international tiger con- hearings on Foreclosed Justice: Causes and Effects of the servation efforts and the upcoming Global Tiger Summit Foreclosure Crisis—Part II, 10 a.m., 2141 Rayburn. in St. Petersburg, Russia, S.J. Res. 37, calling upon the December 16, hearing on the Espionage Act and the President to issue a proclamation recognizing the 35th Legal and Constitutional Issues Raised by WikiLeaks, anniversary of the Helsinki Final Act, Treaty between the 9:30 a.m., 2141 Rayburn.

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Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 2 p.m., Monday, December 13 10 a.m., Monday, December 13

Senate Chamber House Chamber Program for Monday: Senate will resume consideration Program for Monday: The House will meet in a pro of the amendment of the House of Representatives to the forma session at 10 a.m. amendment of the Senate to H.R. 4853, Airport and Air- way Extension Act, and after a period of debate, vote on the motion to invoke cloture on Reid motion to concur in the amendment of the House to the amendment of the Senate to the bill, with Reid/McConnell Amendment No. 4753, at 3 p.m.

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