To make available $5,000,000 for grants to community-based organizations and State and local government entities to conduct outreach to veterans in under-served areas.

MILITARY CONSTRUCTION, VETERANS AFFAIRS AND RELATED AGENCIES
APPROPRIATIONS ACT, 2010

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 3082, which the clerk will
report.
The assistant legislative clerk read as follows:

A bill (H.R. 3082) making appropriations for military
construction, the Department of Veterans Affairs, and related
agencies for the fiscal year ending September 30, 2010, and
for other purposes.

Pending:

Johnson-Hutchison amendment No. 2730, in the nature of a
substitute.
Udall (NM) amendment No. 2737 (to amendment No. 2730), to
make available from Medical Services, $150,000,000 for
homeless veterans comprehensive service programs.
Johnson amendment No. 2733 (to amendment No. 2730), to
increase by $50,000,000 the amount available for the
Department of Veterans Affairs for minor construction
projects for the purpose of converting unused Department of
Veterans Affairs structures into housing with supportive
services for homeless veterans, and to provide an offset.
Franken-Johnson amendment No. 2745 (to amendment No. 2730),
to ensure that $5,000,000 is available for a study to assess
the feasibility and advisability of using service dogs for
the treatment or rehabilitation of veterans with physical or
mental injuries or disabilities.
Inouye amendment No. 2754 (to amendment No. 2730), to
permit $68,500,000, as requested by the Missile Defense
Agency of the Department of Defense, to be used for the
construction of a test facility to support the Phased
Adaptive Approach for missile defense in Europe, with an
offset.
Coburn amendment No. 2757 (to amendment No. 2730), to
require public disclosure of certain reports.
Durbin amendment No. 2759 (to amendment No. 2730), to
enhance the ability of the Department of Veterans Affairs to
recruit and retain health care administrators and providers
in underserved rural areas.
Durbin amendment No. 2760 (to amendment No. 2730), to
designate the North Chicago Veterans Affairs Medical Center,
Illinois, as the ``Captain James A. Lovell Federal Health
Care Center.''
Johanns amendment No. 2752 (to amendment No. 2730),
prohibiting use of funds to fund the Association of Community
Organizations for Reform Now (ACORN).
Akaka amendment No. 2740 (to amendment No. 2730), to extend
the authority for a regional office of the Department of
Veterans Affairs in the Republic of the Philippines.
Menendez amendment No. 2741 (to amendment No. 2730), to
provide, with an offset, an additional $4,000,000 for grants
to assist States in establishing, expanding, or improving
State veterans cemeteries.
DeMint (for Inhofe) amendment No. 2774 (to amendment No.
2730), to prohibit the use of funds appropriated or otherwise
made available by this act to construct or modify a facility
in the United States or its territories to permanently or
temporarily hold any individual held at Guantanamo Bay, Cuba.
DeMint amendment No. 2779 (to amendment No. 2730), to
prohibit the use of funds for the transfer or detention in
the United States of detainees at Naval Station Guantanamo
Bay, Cuba, if certain veterans programs for fiscal year 2010
are not fully funded.

Mr. JOHNSON. Mr. President, as we come back from the Veterans Day
recess, the Senate resumes consideration of the MILCON-VA
appropriations bill. As I have stated several times on the floor during
this debate, this is a vital piece of legislation that needs to be
passed as quickly as possible.
As I speak, the VA is operating under a stopgap funding measure.
Funding the VA in that manner is far from ideal and interrupts planning
and hiring at VA hospitals. The bill before the Senate today protects
against this sort of problem in the future by providing $48.2 billion
in advance appropriations for VA medical care. This is something that
is supported by both sides of the aisle. In fact, this bill is one of
the most bipartisan measures that we take up every year. That is why it
mystifies me that we seem to be in a holding pattern.
One of the most critical parts of this bill is medical care for our
Nation's vets. The VA is expecting to treat almost 6.1 million patients
in fiscal year 2010, an increase of 2.1 percent over last year.
Moreover, the Department estimates it will see the number of Iraq and
Afghanistan war vets rise to 419,000 this year, a 61-percent increase
in patient load since 2008. With these facts in mind, the bill targets
the vast majority of discretionary funding for vets' medical care. The
bill provides a total of $44.7 billion for medical care. Additionally,
it provides $580 million for vital medical and prosthetic research.
This is one of the many reasons why we need to get this bill passed and
sent to conference as soon as possible.
In addition, hundreds of urgent military construction projects are on
hold awaiting passage of this bill.
Under a unanimous consent agreement entered into last Monday, there
are 27 amendments in order to this bill and one motion. As I understand
it, we will soon be voting on one of the amendments and the motion to
commit. Between now and the time of the vote, I wish to try to clear
some of the other amendments that are in order to the bill. I have read
all these amendments, and the vast majority are not controversial. It
seems to me we should be able to clear them. If there are objections to
any of these amendments, I urge my colleagues to come to the floor and
express what objections they may have.
Taking care of our vets and our military troops and their families is
one of the most important tasks of this body. Surely, we can all work
together and pass this bill quickly.

Amendment No. 2781 to Amendment No. 2779

Mr. JOHNSON. Mr. President, on behalf of Senator Durbin, I send a
second-degree amendment to the desk.
The ACTING PRESIDENT pro tempore. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from South Dakota [Mr. Johnson], for Mr.
Durbin, proposes an amendment numbered 2781 to amendment
2779.

Mr. JOHNSON. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

At the end of the amendment, add the following:
The provision of the amendment shall become effective 1 day
after enactment.

Mr. JOHNSON. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LeMIEUX. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

[[Page S11363]]

Mr. LeMIEUX. Mr. President, I ask unanimous consent to speak as in
morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Guantanamo Prisoners

Mr. LeMIEUX. Mr. President, I am here to speak about the recent
decision of the Obama administration to bring five terrorists allegedly
responsible and who admitted being responsible for planning and
executing the 9/11 attacks and having them tried in a criminal court in
New York. This is the group of Khalid Shaikh Mohammed and four other
alleged 9/11 plotters.
The reason I stand before you today is to ask you the question: Why?
Why are we bringing enemy combatants, terrorists, to trial in a civil
venue in New York? The decision of the Attorney General does not make
sense to me. It is not sound in terms of our historical precedent for
these types of hearings, and it puts our national security at risk for
the future.
Criminal trials for terrorists are different and should be different
than criminal trials of those who commit crimes in this country. After
all, we afford our citizens who commit crimes the presumption of
innocence. It is part of the bargain we have with our citizens, that we
will not presume them guilty. We afford them rights--rights that are
set forth in our Bill of Rights, rights that are guaranteed
constitutionally. We do not guarantee these rights for people who are
not U.S. citizens. More importantly, we do not guarantee these rights
for terrorists who attack our country in an act of war.
Right now, we are fighting this war in two theaters--in Afghanistan
and Iraq. These are enemy combatants. They are not U.S. citizens. They
were not resident in the United States when they committed this crime.
I wish to go through the rights we afford the criminally accused in a
normal prosecution in this country and show why they are not suited for
a terrorist.
We extend the right to remain silent; the right to have that silence
not used against you; the right to choose between a public trial before
a judge or jury; the right to summon and compel the attendance of
witnesses to testify on the accused's behalf; the right to a speedy
trial; the right to see all the evidence collected against the accused;
the right to learn how the evidence was collected; and the right to
appeal not only the verdict but almost every ruling a judge performs in
the case.
Why are we extending these rights to enemy combatants who killed
nearly 3,000 innocents on 9/11 through an act of war? They did not wear
a military uniform, and the planes they flew were not the planes of
foreign countries with foreign flags. But there is no difference
between the war we are in with them and wars we have had against other
countries.
The precedent of what may happen when we afford these rights to these
terrorists is not good. Former Attorney General Michael Mukasey talked
about what happened when we tried terrorists in U.S. criminal courts.
During the trial of Ramzi Yousef, the mastermind of the 1993 World
Trade Center bombing, a part of testimony which we thought was
innocuous at the time that came out in the public courtroom talked
about the delivery of a cell phone battery. It tipped off the
terrorists still at large that one of their communication links had
been compromised. Mukasey said that link, which had been monitored by
the government and provided enormous, valuable intelligence, was
immediately shut down and lost in our war on terror.
Mukasey also noted that ``In the multidefendant terrorism prosecution
of Sheik Omar Abdel Rahman, [also known as ``the Blind Sheik'' for his
role in the 1993 World Trade Center bombings] . . . the government was
required to disclose, as it is routinely in conspiracy cases,'' the
names of the unindicted coconspirators, one of whom was Osama bin
Laden.
We are giving information in these public trials, which were never
meant for terrorism, which was never meant for people we are at war
with, that may be used against us in a future terrorist attack.
Why are we doing this? What is the purpose? We have military
tribunals to perform this function. This is not something new to this
country. We have been using military tribunals since the time of George
Washington. He used it during the American Revolution to deal with
British spies. None other than Franklin Delano Roosevelt used them in
World War II. We had eight German agents who sneaked ashore with the
intent to plant explosives at railroad facilities and bridges.
Roosevelt used military tribunals to try and convict those Germans who
came across in World War II, and the Supreme Court upheld it. These
military tribunals are not something new. They have to be done right.
They have to give due process.
We used them against the driver of Osama bin Laden, and one of the
charges was dismissed against him. So they are a fair process.
Why are we bringing the 9/11 terrorists to a criminal court in New
York? These are not bank robbers. These are people with whom we are at
war. Why are we affording them extra rights? Why are we affording them
extra rights when the information that is revealed during the discovery
process in Federal court may compromise our national security and lead
to additional terrorist attacks? Why are we doing this? It doesn't make
any sense to me. It defies history, and it is going to present and
possibly provide future challenges to our national security.
Finally, let's think about what these trials are going to be like. We
are giving these terrorists an international reality show where they
are going to be able to have a platform each and every day to talk
about their war against our country and our values. I wish to quote
from David Brooks in his column in the Washington Post. He said:

Terrorism is an act of propaganda. So now [Khalid Sheik
Mohammed] gets to commit the original act of propaganda,
which was the attack, and now he's going to have a long
trial, an international reality show, which will be followed
here, but more importantly, followed around the world. So
he's getting a second bite of the apple at spreading his
propaganda message.

What happens if because of all of the rights that are afforded to a
person who is tried in a criminal court in the United States, what
happens if because one of those rights and all of the presumptions
there are against being found guilty, presumptions that we afford to
our citizens because they are part of our constitutional democracy,
what happens if Khalid Shaikh Mohammed, the mastermind of 9/11, is
acquitted on a technicality? Then what? What are we going to do with
him? Are we going to release him? Are we going to let him off on the
streets in New York? I don't think so. Then we are going to hold him
again. What does that say to the international community? He had a
trial, he was acquitted, but we are still going to hold him because we
think he is a threat. That is going to backfire on this administration.
In conclusion, I cannot understand why we are doing this. I cannot
understand, when we have a historical precedent of a military tribunal
that we have used since the time of George Washington, that we used
during World War II, why we are going to bring these terrorists who
killed or were responsible for killing nearly 3,000 innocents on
September 11, why we are going to try them in Federal court as
criminals and not understand what they truly are, which are terrorists
with whom we are at war.
Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Amendment No. 2746 to Amendment No. 2730

Mr. FEINGOLD. Mr. President, I ask unanimous consent to set aside the
pending amendment so I can call up amendment No. 2746.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 2746 to amendment No. 2730.

[[Page S11364]]

Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be
dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To require reporting on alternatives to major construction
projects related to the security of strategic nuclear weapons
facilities)

On page 27, between lines 3 and 4, insert the following:
Sec. 128. (a) During each of fiscal years 2010 through
2014, the Secretary of Defense shall submit to the
congressional defense committees a report analyzing
alternative designs for any major construction projects
requested in that fiscal year related to the security of
strategic nuclear weapons facilities.
(b) The report shall examine, with regard to each
alternative--
(1) the costs, including full life cycle costs; and
(2) the benefits, including security enhancements.

Mr. FEINGOLD. Mr. President, my amendment would enhance the security
of our strategic nuclear weapons arsenal and help ensure that the
Defense Department makes the best use of taxpayer dollars. I am pleased
it has the support of the chairmen of both the Military Construction
Appropriations subcommittee and the Armed Services Committee.
The amendment would require the department to submit an analysis of
alternative designs for any major military construction projects to
secure our nuclear weapons that it plans to initiate. GAO recently
found that the Navy initiated two significant new projects without
fully analyzing all of the alternatives. Therefore, we cannot be sure
that we have found the safest and most cost effective means of
protecting our nuclear weapons.
Ensuring the security of our nuclear materials and weapons is more
important today that it has ever been. The Commission on the Strategic
Posture of the United States recently concluded that the threat posed
by the danger of terrorists accessing nuclear materials is greater than
the threat that a foreign government would choose to use such weapons
against us. Unfortunately, in the face of this new threat, our
stewardship of our own arsenal has grown lax in recent years. All of my
colleagues are aware of the serious breakdown in leadership which
resulted in the unintentional shipment of nuclear-related
intercontinental ballistic missile parts to Taiwan. They are likely
also aware that a B-52 bomber flew across the continental United States
mistakenly loaded with five nuclear warheads. These incidents led to
the resignation of the Air Force Chief of Staff and Air Force
Secretary. Just recently, a wing commander was relieved of command for
substandard performance during several nuclear surety inspections at
Minot Air Force Base. Clearly, this is an area that warrants sustained
congressional oversight.
I recently wrote to the Assistant Secretary of Defense for Global
Strategic Affairs, Dr. Michael Nacht, asking him to include in the
Nuclear Posture Review an analysis of the ideal means to secure our
domestic nuclear complex from a terrorist attack. Securing nuclear
materials is not just about command and control--it is also about
ensuring the physical security needed to ward off an attack. In 2008,
the Department of Energy's Office of Independent Oversight conducted an
evaluation, including a mock terrorist attack, of a U.S. lab that
stores weapons-grade nuclear materials. The oversight office found that
the lab's security program had significant weaknesses. In light of
these numerous security incidents, Congress must step up its efforts to
conduct oversight of our nuclear weapons complex.
This amendment is a small step in that direction. As the Defense
Department completes the Nuclear Posture Review and stands up a new
command in the Air Force to handle nuclear weapons, it is important
that we send a message that we want a careful analysis of the best
means to secure our nuclear weapons.
The Defense Department spends roughly a billion dollars annually on
nuclear weapons security, including about $50 million annually on
military construction. GAO recently found that ``the Navy plans to
spend about $1.1 billion on security improvements to protect ballistic
missile submarines while in transit, but selected one alternative
without considering the full life cycle costs of the available
alternatives.'' In particular, the ``Navy did not consider the military
construction costs of building new facilities to support the new
security measures. . . .'' In another case, the Navy interpreted DOD
guidance as ``precluding the considerations of costs and benefits.''
This amendment will ensure that this does not happen again.
GAO also found that DOD occasionally cited costs ``as a criterion for
deviations from security requirements.'' This amendment will ensure
that the Department conducts a full cost benefit analysis and provides
it to Congress. That way we can ensure that DOD is not deviating from
security requirements unnecessarily for cost.
I urge my colleagues to support this amendment.

Amendment No. 2748 to Amendment No. 2730

Mr. FEINGOLD. Mr. President, if I could, I would like to move on, set
that amendment aside in favor of bringing up amendment No. 2748.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Wisconsin [Mr. Feingold], for himself and
Mr. Sanders, proposes an amendment numbered 2748 to amendment
No. 2730.

Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be
dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To make available $5,000,000 for grants to community-based
organizations and State and local government entities to conduct
outreach to veterans in under-served areas)

On page 52, after line 21, add the following:
Sec. 229.  Of the amounts appropriated or otherwise made
available by this title, the Secretary shall award $5,000,000
in competitively-awarded grants to community-based
organizations and State and local government entities with a
demonstrated record of serving veterans to conduct outreach
to ensure that veterans in under-served areas receive the
care and benefits for which they are eligible.

Mr. FEINGOLD. Mr. President, this amendment would establish a pilot
program to give grants to community-based organizations to conduct
outreach for veterans. Many veterans are not aware of care and benefits
available to them through the VA or need help navigating the VA
bureaucracy to access those benefits.
The VA has recognized the need to conduct additional outreach to
veterans but does not have the presence in certain underserved
communities, including rural areas, to do so directly. This amendment
would ensure the VA makes grants to organizations, including State and
local governmental entities, that have a presence in the community and
experience working with veterans.
This amendment is based on my Veterans Outreach Improvement Act,
which I first introduced over 5 years ago. That bill has been endorsed
by the American Legion; Veterans of Foreign Wars; Paralyzed Veterans of
America; Vietnam Veterans of America; National Guard Association of the
United States; Wounded Warrior Project; and the National Association of
State Directors of Veterans Affairs. The companion bill has already
passed the House.
The Senate Veterans Affairs Committee has endorsed the idea of a
pilot grant program and has authorized the program in the pending
Caregivers and Veterans Omnibus Health Services Act of 2009.
The amendment would set aside $5 million in funding for the grants.
CBO has certified that the amendment has no score and is deficit-
neutral.
The grants would be awarded on a competitive basis. A wide variety of
groups could apply for the grants. State departments of veterans
affairs could apply for the grants. In Wisconsin, the Department of
Veterans Affairs runs a ``supermarket'' of benefits where veterans can
come and learn about programs available to them through the VA. In the
first several years of the program, over 10,000 Wisconsin veterans
learned about VA programs for which they were eligible. If that many
veterans in Wisconsin alone were unaware of these programs, you can
imagine the need for greater outreach nationwide.

[[Page S11365]]

Other groups that may apply for grants include the county veteran
service officers who are present in counties throughout most States.
These individuals have a presence in many rural communities where the
VA's presence is minimal. Rather than hiring contractors that know
nothing about veterans issues to conduct outreach by phone to veterans,
as the VA has done, this amendment would allow the VA to leverage
existing expertise in the community. Both State and local governmental
entities are currently conducting outreach notwithstanding the fact
that this is a Federal responsibility. Given the current strain on
State and local budgets, we cannot assume that they will continue to be
able to offer these services.
Community-based nonprofits with experience working with veterans will
also be eligible for the grants. These organizations may have special
skills for working with underserved veterans, such as expertise in
assisting those with mental disabilities.
Given the high number of service members returning from Afghanistan
and Iraq, it is essential that we conduct outreach to these veterans
now to ensure that they get the services they need from the VA. I urge
my colleagues to support this amendment.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. I ask unanimous consent that the order for the quorum
call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Nomination of David F. Hamilton

Mr. SESSIONS. Mr. President, I rise to share some thoughts about the
Hamilton nomination in particular and some thoughts about the idea that
judges can be subject to a filibuster. It is a matter that has been the
subject of discussion in the Senate for a number of years. I wish to
share with my colleagues how it all came about, where I think we are
today, and why Mr. Hamilton does not deserve to be confirmed as a
Federal judge.
I recognize he has many qualities, and I am not saying anything about
him personally. But his approach to the law is unacceptable and is
activist and evidences a philosophy that indicates he would not be
serving under the law and under the Constitution but, as he has said, a
judge is free to write footnotes to the Constitution. I don't think
judges are empowered to write footnotes to the Constitution. According
to their oath, judges serve under the Constitution. They don't get to
amend it or footnote it, and they are not above it.
Back when President Clinton was in office, he nominated a number of
judges who were activist. I voted for over 90 percent of his nominees.
But I believed a number were activists, and I opposed them. There was
much discussion about it. Nominees such as Marsha Berzon and Richard
Paez I believed, were not going to be faithful to the law if confirmed.
My instincts in that regard have been proven correct. This was in the
1990s.
Regardless, I remember then-majority leader Trent Lott, a Republican,
moved for cloture on Berzon and Paez. We had votes. I and an
overwhelming number of Republicans voted for cloture; that is, voted to
bring up the nominees for a vote. Then a number of us voted against
them. We didn't think they should be confirmed. But we didn't adhere to
the view that filibustering was appropriate. That is when President
Clinton, a Democrat, was in the White House.
Then, my Democratic colleagues in the Senate opposed filibusters and
made all kinds of speeches against filibusters and against delaying
votes.
Then President Bush, a Republican, got elected. In January, before he
actually took office or about the time he took office, my Democratic
colleagues had a retreat. At the retreat they met with legal scholars:
Laurence Tribe, Cass Sunstein, and Marcia Greenberg. They advised them
they should no longer follow tradition but should change the ground
rules. In fact, they did so in a lot of areas. The New York Times
reported that the decision at this meeting was about changing the
ground rules on confirmations.
When President Bush started nominating judges, they were suddenly
subject to filibuster--consistent, sustained filibusters, vote after
vote. I believe there were 30 different cloture votes filed to move his
nominees forward. That is what happened. We ended up with a series of
nominees who were fabulous nominees President Bush had submitted, and
they couldn't get a vote. Priscilla Owen, a member of the Texas Supreme
Court, was given the highest possible rating by the ABA; Judge Bill
Pryor, now Justice Bill Pryor from Alabama, a fabulous, brilliant
nominee; Miguel Estrada; Janice Rogers Brown, an African-American woman
who had been elected to the California Supreme Court and was a fabulous
nominee. I remember her particularly since she had been born in
Alabama. We couldn't bring them up for a vote. It went on and on.
Finally, the only thing that then-majority leader Bill Frist could do
was to change the rules of the Senate to allow us to vote. He finally
got the situation to the point that that appeared to be likely to
occur.
It was at that point that the Gang of 14--seven Republican and seven
Democratic Senators--got together and basically said: Too many nominees
are being filibustered. We are abusing the filibuster rule, but we
don't think we ought to eliminate the filibuster altogether, but only
in extraordinary circumstances. If you really think this is not a good
nominee who should not serve on the bench, vote no. But only if you
strongly believe there is some serious flaws in this nominee's
background, only then should you participate in a filibuster. It is
legitimate if there is extraordinary circumstances. That is what they
said.
A number of the judges got through. Several did not. There were 8 or
10 in controversy at that time for the circuit bench. Priscilla Owen,
Bill Pryor, and Janice Rogers Brown were confirmed, but several others
didn't make it from that group.
Now we have a Democratic President, and his nominees are coming up.
Justice Sotomayor, whom he nominated to the Supreme Court, was a nice
person, a capable person. She made some speeches that were troubling.
We all analyzed that and studied that a good bit. What we concluded
was--at least what I concluded, I think most of my colleagues did too--
that while we may have serious doubts about whether she should be
confirmed for the Supreme Court, we didn't think there were
extraordinary circumstances that would justify a filibuster. So she was
given an up-or-down vote. I voted against her nomination, but she was
confirmed.
That is normally the way things have happened. Robert Bork's
nomination failed on an up-or-down vote. Justice Clarence Thomas was
confirmed on an up-or-down vote. However, President Bush's nominee for
the Supreme Court, Justice Alito, was filibustered. He was a fabulous
nominee who was so impressive in committee, almost as impressive as
President Bush's other nominee, Chief Justice John Roberts. He should
not have been filibustered, but he was. President Obama was one who led
the filibuster and participated in it. But it failed, and Justice Alito
was confirmed.
In 1997, when a Democratic President was in office and they were
trying to move his nominees forward, Senator Boxer said:

It is not the role of the Senate to obstruct the process
and prevent numbers of highly qualified nominees from even
being given a vote on the Senate floor.

That is being denied an up-or-down vote by filibuster. She opposed
that. Yet when President Bush was nominating judges, she voted 35 times
to block his nominees by filibuster.
During the Clinton administration, Senator Schumer said:

I also plead with my colleagues to move judges with
alacrity--vote them up or down. This delay makes a mockery of
the Constitution, makes a mockery of the fact that we are
here working, and makes a mockery of the lives of very
sincere people. . . .

Senator Schumer later voted 34 times to keep President Bush's
nominees from having an up-or-down vote, in other words, to filibuster
his nominees.
Our distinguished chairman of the Judiciary Committee, Senator Leahy,
likewise made similar statements. I will not go into all of those, but
I can do so. I can definitely state time after

[[Page S11366]]

time, Senator after Senator who opposed filibusters when President
Clinton was sending nominees to the Senate led the filibusters against
President Bush's nominees.
The Democrats have a clear majority in the Senate, 60 Members.
Senator Reid recently came to the Chamber to demand a time agreement
for Judge David Hamilton's nomination to the Seventh Circuit Court of
Appeals. Apparently, he was not happy that some of us wanted to have
more debate about it. He said:

We are going to do Judge David Hamilton [for the] Seventh
Circuit, who has been waiting since April. We have agreed to
time agreements. Do you want an hour, 2 hours, 5 hours, 10
hours of debate? No, we don't want anything.

He is speaking for the Republicans.

They don't want a time agreement. This is so important that
we will spend 2 days debating it if we can have a vote. But
that is not good enough. No time is sufficient.

That is what he grumbled about. He has a lot on his plate. But
Senator Reid has a short memory. When Senator Reid was in the middle of
filibustering Priscilla Owen, a fabulous nominee, and Senator Bob
Bennett made a unanimous consent request that the Senate commit 10
hours to debating her nomination and then give her an up-or-down vote,
Senator Reid objected. When Senator Bennett asked how much time would
be sufficient for the nomination, Senator Reid responded by saying:

[T]here is not a number [of hours] in the universe that
would be sufficient.

Later, Senator McConnell sought a time agreement on Judge Owen.
Senator Reid responded by saying:

We would not agree to a time agreement . . . of any
duration.

Majority Leader Reid voted 27 times to filibuster President Bush's
nominees. There are a number of other statements I could cite that
demonstrate how some of my Democratic colleagues have forgotten the
factual record.
The truth is, my colleagues on the Democratic side fought against
moving to cloture on 17 of President Bush's judicial nominees on 30
separate occasions. In doing so, they changed 214 years of Senate
tradition. That is a fact.
I remember, as a new Member of the Senate, when President Clinton was
in office. I believed the Senate should abide by those rules. I
remember voting for cloture to move two nominations--Berzon and Paez.
Although I voted against them, I did not support a filibuster. I did
not think we should change the Senate tradition.
Once those debates started--colleagues will remember--it was a pretty
hot debate. We believed strongly that there was no basis to block a lot
of these nominees. The only thing these judges had in common was that
they believed a judge should strictly apply the law, that they should
be objective, that they should not allow their personal feelings to
enter into their decision-making, or their empathies, and that they
would be faithful to the law even if they didn't like the law. If it
was passed by some legislature or the Congress, they ought to be
enforcing it regardless of what they personally thought. They were not
elected to make the law; they were elected to enforce the law. The
American people agreed with that overwhelmingly.
One night we debated all night. We went all night long to try to
encourage colleagues to give up on the filibusters. But they didn't.
That is how we got the Gang of 14 came about and made the rule change.
So my Democratic colleagues are sort of suggesting, it seems to me,
that it is somehow improper that on any nominee Republicans would
demand they achieve a 60-vote margin to move to an up-or-down vote--
what they have been doing time after time. I will just say if we allow
that to happen, this is the effect of it. It would mean for a
Republican President who nominates a judge to the bench, his nominee
would have to get 60 votes in the Senate to be confirmed. But if a
Democrat is in office, and Republicans are not able to filibuster, it
would only take 51 votes to get them confirmed.
That is the kind of situation we are in. So the answer becomes, to
me, pretty obvious, and I think to others on our side. We had a full
debate. We had a real battle. We went on for several years. We debated
the rules of the Senate, and the Senate, in effect, established a new
rule. The new rule is, filibusters are legitimate, but only if there
are extraordinary circumstances. I think that is not totally improper.
I guess we are stuck with it. That is where we are, and I think that is
probably where we are going to stay for a while.
So as we go forward today, we will be asking--maybe each of us--what
``extraordinary circumstances'' is. There is no exact definition of it.
When is it appropriate to vote against cloture on a judicial nominee?
What does ``extraordinary circumstances'' mean? Each Senator will make
up their own mind. There is no firm definition.
In my view, Judge Hamilton is an example of a nominee who does fit
the ``extraordinary circumstances'' standard for a number of reasons.
It is difficult for Members on this side of the aisle to vote to end
debate on a nominee as controversial as Judge Hamilton. Indeed, we have
had no debate on him at all on the floor to date. No one on this side
of the aisle has made a statement similar to the one Senator Reid made
about there not being enough time in the universe to debate the
nominee.
If we look back and see how the decision was made on the nominees who
came through when the rule was changed, maybe we can get some feeling
for the appropriate way to view--based at least on what happened
before--the meaning of ``extraordinary circumstances.''
As to Judge Bill Pryor, the Democrats forced three cloture votes.
They blocked him three times. Many of my colleagues who are now arguing
against a filibuster, saying Judge Hamilton should not be filibustered,
did not hesitate to vote to block an up-or-down vote on Judge Pryor.
During his confirmation, then Alabama Attorney General Pryor was
criticized because he had pro-life personal views, although he had a
record of showing that he criticized an Alabama law, as attorney
general, that was anti-abortion, when he felt it was unconstitutional.
As attorney general, he said it was unenforceable. It was a close
question, but the Supreme Court had ruled on it, and Bill Pryor said: I
am a man of the law. Even though I am pro-life, I cannot enforce this
law.
That was not good enough. They thought he, as a strong and practicing
Catholic, was too religious. So now, if we look at Judge Hamilton--I am
not sure what his religious beliefs are, and it certainly is not a
matter that is important--but in Hinrichs v. Bosma, in the district
court where he is a Federal district judge, in 2005, Judge Hamilton
prohibited prayers in the Indiana House of Representatives that
expressly mentioned Jesus Christ, saying they violated the
Establishment Clause of the United States. Yet he would have allowed
prayers which mentioned Allah. They had an imam pray at the legislature
too.
Mr. President, I will wrap up.
In Grossbaum v. Indianapolis-Marion County Building Authority, he
denied a rabbi's plea to allow a Menorah to be part of the Indianapolis
Municipal Building's holiday display. The Seventh Circuit reversed him
unanimously.
So I would ask, between the criticism of Judge Pryor and Judge
Hamilton, who is out of the mainstream? Where is the extraordinary
circumstance?
Then there was Priscilla Owen, some of my Democratic colleagues found
extraordinary her dissents in close, split cases, dealing with parental
consent. Judge Owen was concerned that a 16-year-old in Texas could get
an aspirin at school without parental consent but, under Texas law,
could have an abortion without any parental involvement. She voted to
uphold the ruling of the lower court judge that parents should be at
least notified before their daughters underwent an operation, and my
colleagues did not like that.
Judge Hamilton, on the other hand, succeeded in blocking the
enforcement of an Indiana informed consent law for 7 years. In
reversing him, the Seventh Circuit noted that Judge Hamilton had abused
his judicial discretion. The court of appeals said this:

[F]or seven years Indiana has been prevented from enforcing
a statute materially identical to a law held valid by the
Supreme Court in Casey, by this court in Karlin, and by the
Fifth Circuit in Barnes. No court anywhere in the country
(other than one district judge in Indiana)--

They were talking about Judge Hamilton--

[[Page S11367]]

has held any similar law invalid in the years since Casey. .
. . Indiana (like Pennsylvania and Wisconsin)--

According to the Court--

is entitled to put its law into effect and have that law
judged by its own consequences.

So between the criticisms of Judge Owen and Judge Hamilton, which one
is outside the mainstream?
Well, there are other issues we could talk about and will talk about
as the debate goes forward. But I just wanted to share that to say I am
not one who believes we should lightly oppose a nominee. I think they
should be given some deference, whatever a Senator believes. I believe
a President's nominee should be given deference. But we are not a
rubberstamp. We are being asked to give this nominee a lifetime
appointment. If they believe they have the power to frustrate
legislative will and popular will, when what the legislature did is not
in violation of the Constitution, they do not need to be on the bench.
That is my view and I think a lot of others' view too.
The American people are unhappy with judges who believe they can
allow their feelings, their empathies to cause them to render opinions
that do not follow the law. The great American heritage is an objective
view of the law, and the oath that a judge takes is to be impartial and
to serve under the Constitution and the laws of the United States.
Because I am deeply troubled by Mr. Hamilton's record--not by his
personal qualities, but his record and his speeches--I will be opposing
the nomination and not voting for cloture.
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mrs. Hagan). The Senator from Indiana.
Mr. LUGAR. Madam President, I ask unanimous consent to speak as in
morning business for up to 20 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Nomination of Judge David Hamilton

Mr. LUGAR. Madam President, I rise today to speak on behalf of Judge
David Hamilton whom the President has nominated to serve on the U.S.
Court of Appeals for the Seventh Circuit.
I first had the pleasure of supporting David Hamilton almost 15 years
ago when he was nominated to the Federal district court. I said then
that ``the high quality of his education, legal experience, and
character well prepare him for this position'' and expressed my belief
that ``his keen intellect and strong legal background will make him a
great judge.'' This confidence in David Hamilton's character and
abilities was shared by all who knew him regardless of political
affiliation throughout Indiana's legal and civic communities.
I have known David since his childhood. His father, the Reverend
Richard Hamilton, was our family's pastor at St. Luke's United
Methodist Church in Indianapolis where his mother was the soloist in
the choir. Knowing firsthand his family's character and commitment to
service, it has been no surprise to me that David's life has borne
witness to the values learned in his youth.
David graduated with honors from Pennsylvania's Haverford College,
won a Fulbright Scholarship to study in Germany, and then earned his
law degree at Yale. After clerking for the Seventh Circuit Court, David
joined the Indianapolis office of Barnes & Thornburg where he became a
partner and acquired extensive litigation experience in the Indiana and
Federal judicial systems.
When our colleague, Senator Evan Bayh, was elected Governor of
Indiana, he asked David to serve as his chief legal counsel. Among
other achievements in that role, David supervised the overhaul of State
ethics rules and guidelines and coordinated judicial and prosecutorial
appointments.
In the latter capacity, David worked closely with Judge John Tinder,
then a President Reagan appointee to the district bench, whom President
Bush recently appointed to the Seventh Circuit with the unanimous
support of the Judiciary Committee and the full Senate.
When David was nominated to the district court, Judge John Tinder
wrote to me that David was ``meticulous in asking the difficult
questions of and about judicial nominees.'' He said his approach to
these duties ``typifies the deliberate and sensitive way in which he
approaches matters in his professional life.''
The same is true of David's approach to his judicial duties. Leading
members of the Indiana bar testify to his brilliance and, as important,
to his character, dedication, and fairness. Geoffrey Slaughter,
president of the Indiana Federalist Society, also endorsed Judge
Hamilton's nomination, saying:

I regard Judge Hamilton as an excellent jurist with a
first-rate intellect. He is unfailingly polite to lawyers. He
asks tough questions to both sides, and he is very smart. His
judicial philosophy is left of center, but well within the
mainstream.

His colleagues on the Southern District of Indiana bench--a talented
and exceptionally collegial group from both parties--unanimously
endorse that conclusion.
I recognize some of my colleagues do not share this view. Specific
charges have been levied that Judge Hamilton has used his position on
the Federal courts to drive a political agenda. I believe a closer look
at his record will reveal that Judge Hamilton has not been a judicial
activist and has ruled objectively and within the judicial mainstream.
Upon receiving a letter from my good friend and colleague, the
ranking member of the Senate Judiciary Committee, I asked Indianapolis
attorney and former Associate Counsel to President Ronald Reagan,
namely, Peter Rusthoven, to review concerns raised regarding David
Hamilton's nomination.
Judge Hamilton has been criticized for a speech delivered in 2003
when he cited that judges ``write a series of footnotes to the
Constitution.''
It has been suggested that this comment is evidence of a judicial
activist philosophy. However, Judge Hamilton never wrote that judicial
decisions are an appropriate means to change the Constitution. The
footnotes comment means simply that judicial decisions illustrate how
the Constitution applies to particular circumstances. For example,
Chief Justice Marshall's seminal Marbury v. Madison decision,
establishing judicial authority to pass on the constitutionality of
actions by the political branches, illustrates a vital aspect of how
the Constitution applies, but does not assert judicial power to amend
the Constitution, much less based on a judge's personal views.
Another charge levied is that Judge Hamilton prohibited public
prayers involving Jesus Christ but allowed prayers invoking Allah.
However, Judge Hamilton did not say, as some suggest, that prayers in
the Indiana Legislature ``Allah'' as the Muslim deity were permissible
while prayers to Jesus Christ were not. He in fact said that using
Allah as a generic reference to the deity could theoretically be
permissible in nonsectarian prayer, as would be true of using the word
for God in any language. Judge Hamilton was clear that legislative
prayer advancing the religion of Islam would be prohibited. I support a
more permissive approach to public prayer than Judge Hamilton, but
clearly his ruling comports with Supreme Court authority. As Justice
Antonin Scalia explained, government-sponsored endorsements of religion
are sectarian if they ``specify details upon which men and women who
believe in a benevolent, omnipotent Creator and Ruler of the world are
known to differ, for example, the divinity of Jesus Christ.''
Also contrary to certain charges, Judge Hamilton's ruling on the
issue was not reversed. The Seventh Circuit's later reversal did not
involve the merits, but the separate, procedural issue of whether the
taxpayer plaintiffs had legal standing to challenge the legislative
practice. In this case, a subsequent Supreme Court ruling created a new
precedent which led to the reversal.
A similar reversal situation occurred regarding an effort to compel
local officials to include a Menorah as part of a holiday display in
the Indianapolis City-County Building. The Seventh Circuit opinion by
Reagan appointee Judge Ripple makes this point in its opening
paragraph, saying Judge Hamilton's ruling had been made ``without the
benefit of the Supreme Court's recent guidance in this area.''
There have have also been claims, citing the Almanac of the Federal
Judiciary, that Judge Hamilton is one of the most lenient judges in his
district in criminal matters. However, the Almanac cited
extraordinarily high

[[Page S11368]]

praise for Judge Hamilton. The Almanac summary states: ``Hamilton is
fair when it comes to sentencing, according to lawyers.'' Practitioners
consistently stated that he is objective and shows no bias.
In demonstrating this alleged leniency, critics have cited a case in
which Judge Hamilton ``used his opinion to request clemency for a
police officer who pled guilty to two counts of producing child
pornography.'' Judge Hamilton in fact imposed the 15-year sentence
required by sentencing guidelines even though he believed it excessive
in the circumstances. Doing what the law requires even when a judge may
personally disagree is a textbook example of judicial restraint.
Further, there were, indeed, circumstances in the case that might
properly be considered in a later executive clemency request, which is
all that the unpublished decision was pointing out. In other cases with
different circumstances, Judge Hamilton has imposed rigorous sentences
for child pornography as long as 100 years.
Critics also point to another case in which they argue that Judge
Hamilton disregarded an earlier conviction in order to avoid imposing a
life sentence on a repeat offender. In this particular case, Judge
Hamilton made a mistake and has admitted it. Judge Hamilton initially
imposed a 25-year sentence for drug and firearms offenses on a 55-year-
old man taking into account a 10-year-old prior conviction. The issue
was whether the sentence should be further enhanced based on a 35-year-
old prior conviction on marijuana charges under the now repealed
Federal Youth Corrections Act. Judge Hamilton now believes the Seventh
Circuit was correct to apply a sentence enhancement, and he imposed a
life sentence on remand.
Another complaint is that Judge Hamilton used his position to
purposely delay enforcement of Indiana's informed consent abortion laws
for 7 years. Judge Hamilton's analysis in the Indiana case differs from
my own, but his actions were defensible in the context of what lower
courts must do in the field of abortion law jurisprudence.
As those who believe Roe v. Wade was fundamentally mistaken would
argue, ``undue burden'' issues of the sort Judge Hamilton and the
Seventh Circuit wrestled with in the Indiana litigation are an
unfortunate, inevitable consequence of what Justice Scalia has called
the Supreme Court's continued effort to craft an ``abortion code''
without grounding in the text of the Constitution. Hence, it is hardly
surprising that jurists will come out on different sides of undue
burden inquiries. They necessarily entail judges weighing what is or is
not undue by a standard that is unguided by any constitutional
language. The Supreme Court itself continues to struggle to articulate
tests that will elucidate this matter of law.
One illustration of that point is that five members of the full
Seventh Circuit--including Judge Posner, a Reagan appointee--voted to
grant rehearing en banc of the 2-1 decision reversing Judge Hamilton's
ruling. Further, even in reversing, the Seventh Circuit did not hold
that Judge Hamilton's fact findings were ``clearly erroneous,'' which
is the pertinent appellate review standard on evidentiary questions.
The delay assertion unfairly ignores that the delay was due in very
large part to litigation decisions made by the State of Indiana itself.
Judge Hamilton's preliminary injunction decision in 1995 was
immediately appealable by the State as a matter of right; but the State
chose not to appeal. The same was true of Judge Hamilton's 1997
decision modifying that injunction; again, the State chose not to
appeal. Thereafter, the State as well as the plaintiffs sought
continuances of the trial, including to permit further discovery on
complex statistical issues that are an aspect of the undue burden
analysis. The notion that Judge Hamilton was in any way trying
personally to delay the case, whether based on his personal views on
any issue or for any other reason, is unfounded.
Allow me to close with a few further thoughts on our nominations
process. When I introduced now Chief Justice John Roberts to the Senate
Judiciary Committee in 2005, I expressed my concern that the Federal
judiciary is seen by many as another political branch. The confirmation
process is often accompanied by the same oversimplifications and
distortions that are disturbing even in campaigns for offices that are,
in fact, political. This phenomenon is most pronounced at the Supreme
Court level, and traces to several causes that I will not try to
address today. I mention this, however, to underscore my commitment to
a different view of judicial nominations, which I believe comports with
the proper role of the judiciary in our constitutional framework.
I do not view our Federal courts as the forum for resolving political
disputes that the legislative and executive branches cannot, or do not
want to, resolve.
This is why I believe our confirmation decisions should not be based
on partisan considerations, much less on how we hope or predict a given
judicial nominee will rule on particular issues of public moment or
controversy. I have instead tried to evaluate judicial candidates on
whether they have the requisite intellect, experience, character and
temperament that Americans deserve from their judges, and also on
whether they indeed appreciate the vital, and yet vitally limited, role
of the Federal judiciary faithfully to interpret and apply our laws,
rather than seeking to impose their own policy views. I support Judge
Hamilton's nomination because he is superbly qualified under both sets
of criteria.
Finally, permit me to thank my colleague from Indiana, Senator Evan
Bayh, on the thoughtful, cooperative, merit-driven attitude that has
marked his own approach to recommending prospective judicial nominees
from our State. The two most recent examples are his strong support for
President Bush's nominations of Judge Tinder for the Seventh Circuit
and of Judge William Lawrence for the Southern district of Indiana.
Thank you for this opportunity to express my support for Judge David
Hamilton. I am hopeful that my colleagues will vote tomorrow to end
debate on this important nomination.
Madam President, I yield the floor, and I note the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. JOHNSON. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JOHNSON. I have a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will so state.
Mr. JOHNSON. How much time is remaining on both sides?
The PRESIDING OFFICER. On the minority side, 16\1/2\ minutes; on the
majority side, 46\1/2\ minutes.
Mr. JOHNSON. I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. JOHNSON. Madam President, I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COBURN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Motion to Commit

Mr. COBURN. Madam President, I know we are going to vote at 5:30 on
an amendment and on a motion to commit. I send a motion to commit to
the desk at this time.
The PRESIDING OFFICER. The clerk will report the motion.
The bill clerk read as follows:

The Senator from Oklahoma [Mr. Coburn] moves to commit the
bill H.R. 3082 to the Committee on Appropriations of the
Senate with instructions to report the same back to the
Senate with changes to reprioritize spending within the bill
in order to provide sufficient funding to ensure coverage of
medically necessary care and payment of caregivers for
disabled veterans, including but not limited to those who
fought in World War II, the Korean War, the Vietnam War,
Operation Desert Shield, Operation Desert Storm, Operation
Enduring Freedom, Operation Iraqi Freedom, and any combat
zone in the War on Terrorism, and that such funding for
veterans' assistance should be paid for with reductions in
spending for earmarks for less urgent projects and other
unnecessary programs not requested by the Commander in Chief.

[[Page S11369]]

Mr. COBURN. Madam President, I think under the agreement I will have
30 minutes to discuss this and the other amendment I have; is that
correct?
The PRESIDING OFFICER. Without objection, the Senator may consume 30
minutes.
Mr. COBURN. I thank the Chair. I will try not to consume that amount
of time to move this along.
Last weekend, the Senate, prior to Veterans Day, had the urgency of
passing a bill that will, in fact, help a specified group of veterans,
but it won't help veterans who have identical needs to that group of
veterans because they were excluded from it.
The Caregivers Act also will require, at a minimum, $3.7 billion in
spending over the next 5 years, and none of it--there was no decision
to make in terms of that bill on any priorities about what we get rid
of. As a matter of fact, the intent, as stated by the majority whip,
was that we needed to pass this before last Wednesday so that people
could get care. Well, the truth is, no care will come about if there is
no money in this bill for that program.
The whole purpose for this motion to commit is to do two things: One,
send the committee back and eliminate the discrimination against
veterans in the first gulf war, against veterans in the Vietnam war,
the Korean war, and World War II who have identical needs that require
family caregivers and include them in it. The second aspect of the
motion to commit is to find it from the available funds we have today.
We suggest some opportunity for that but don't mandate where it comes
from. But we should reduce spending somewhere else to pay for this. The
reason that is important is, this past year, 43 cents out of every
dollar we spent we borrowed from our grandchildren.
So in making a motion to commit this bill, we are doing three
essential things. No. 1 is that we are actually being truthful that we
really want to take care of this need and will do it in this fiscal
year. No. 2 is that we are not discriminating against other veterans
who have identical needs. No. 3 is that we are not discriminating
against our children and grandchildren by not making hard choices to
pay for it within existing funds.
I have no illusions that this motion to commit will succeed. But it
doesn't change the very real facts that are in front of this Nation--
that we cannot continue to spend money without making choices about
what is most important. None of us disagree that taking care of those
who have sacrificed for us has to become No. 2 behind the defense of
this Nation in terms of the priorities for this country. Nothing else
is higher in priority. Yet the bill we have before us doesn't make that
a priority and the authorizing language doesn't make that a priority.
As a matter of fact, the bill before us asks the VA to study this issue
rather than actually go on and fund this issue by making the
appropriate changes.
There is a significant increase in this bill, and outside of foreign
expenditures, it is over 5.5 percent. It is not objectionable that it
would be there, that kind of increase, given the demand our troops have
had and their injuries and what they have suffered in terms of
defending this country and fighting two ongoing wars. However, some of
that money ought to be winnowed down so that we can take care of the
very people who protect us.
We have had these tremendous speeches on why we have to do it now. If
those speeches aren't going to ring hollow, we ought to commit the bill
to make sure we have money for the Veterans Caregiver Act.

Amendment No. 2757

The other area I wish to spend time on is that in this bill we also
have various and sundry reports that have been requested by the
committee of different branches of the Federal Government. One of the
most important ways to build trust in the Congress today is for us to
create and increase the level of transparency for the American people
to see our actions. This amendment is simply an amendment that says any
reports that do not divulge or put at risk national security data
should be made available to all the Senators, all the Congress, and all
of the American people. This has been in several of the appropriations
bills we have passed in the Senate. Unfortunately, rarely has it stayed
in the conference report because there are those who don't want the
American people to see what we are doing and how we are doing it.
I will sum up. We find ourselves in a big pickle right now as a
nation. We soon will be voting in this body to increase the debt limit
to $12.1 trillion. That figures out as a significant amount of money
for every individual in this country--well over $35,000--but it is a
very small amount compared to what is getting ready to happen in the
next 9 years as our debt triples. Our debt will triple in the next 9
years, which means we will go from 30-some thousand dollars per
individual to very close to $100,000 per individual.
That doesn't compare to the unfunded liability. If you take everybody
in this country who is 25 years of age and younger--that is 103 million
Americans--and you ask what is the consequence to those young Americans
20 years from now, the consequence is that they are going to be paying
for another $1 million in debt for which they got no benefit, and the
interest costs on that alone will be over $70,000 per year, per
individual under age 25 today and under 45 20 years from now and all
their kids.
The idea that we ought to pay for the new things we do by eliminating
the things that aren't important, that we ought to pay for the new
things we do by eliminating some of the $300 billion worth of waste,
fraud, and duplication in the Federal Government every year is not a
novel idea outside Washington; it is only a novel idea inside
Washington--the very fact that the next generation will be put at a
disadvantage because we lack the same courage and clarity of moral
character our troops have in terms of making tough choices.
My hope is that with the motion to commit, in fact, the body will
look and say we really can fund this and find waste and we can make
choices about what is most important versus what is not most important,
and not only will we help the veterans who are deserving of our
assistance at this time, but we will also help the veterans' children
and grandchildren by not plugging a credit card in and saying: Whatever
we are going to do for veterans today, we are going to charge to you.
Instead, I hope that we are going to carry the load and that we are
going to embrace the heritage of our country, the heritage of sacrifice
and of creating opportunity that is better for the generations that
follow than the opportunities that were given to us. That is not
happening right now in our country. We are going to have a larger
deficit next year than we have this year. We are going to take 43 cents
out of every dollar we actually spend next year and we are going to
charge that all to those two generations that follow us. That is not
what made this country strong. That is not what our veterans fought
for. That is not the country they want to see in the future. It is time
we made some hard choices.
The resistance will be: I don't want to eliminate my earmark; I don't
want to eliminate the parochial things I have done for my State to take
care of veterans. They will not come out and say that, but that will be
the result of the vote. The vote is, take care of the politicians, say
you are taking care of the veterans, but undermine the future of the
next two generations. That is what the vote is going to be about on the
motion to commit--a lot of controversy and emotion associated with not
doing things on time. But I would rather do things right and do things
that will secure the future rather than destroy it. I would rather do
things that honor the sacrifice rather than dishonor the sacrifice.
We can claim all we want when we pass a veterans caregiver bill, but
if we don't fund it and there is no money for it, it is an announcement
that we care but no action behind it. If we don't cover all the
veterans who have the same need, we know it is political only. The
motion to commit makes sure that we cover all veterans, that we treat
them all equally, and if they have the same kinds of needs, they will
get the same kinds of service--not because they are young and served in
the war on terror but because they served this great Nation and
preserved it with their courage, valor, and commitment.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.

[[Page S11370]]

Mr. JOHNSON. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JOHNSON. Madam President, I ask unanimous consent that no
amendments be in order to the Coburn amendment or motion.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JOHNSON. Madam President, the MILCON-VA bill before the Senate
today funds critically important programs for our Nation's military
forces and their families and for our vets. Most of the funding was
requested by the President, but certain programs were enhanced or
augmented by the committee after careful consideration and evaluation
of the budget request. Let me give two examples of the funding in this
bill that was not requested by the President that would be stripped out
under the mandate of the motion to commit: $50 million for community-
based outpatient clinics for vets in rural areas underserved by VA
medical centers. These clinics serve as medical lifelines for vets in
rural areas who do not have ready access to a VA Hospital.
There is $50 million in a pending amendment to renovate excess
buildings on VA medical campuses for homeless vets shelters and
services. An estimated 131,000 vets are homeless on any given night.
Secretary Shinseki has made it a priority to eliminate homelessness
among vets, and this bill supports that effort.
There is $300 million to complete the funding requirement for the
expanded Homeowners Assistance Program for military personnel, to
protect military families under orders to move during the current
mortgage crisis from disastrous losses on home sales and to shield
wounded warriors and surviving spouses from the financial ravages of
the mortgage crisis.
There is $7.5 million for a chapel center at Dover Air Force Base,
DE, to replace a wood-frame chapel built in 1956. The existing chapel
has asbestos in the ventilation system, the roof is too unstable for
maintenance personnel to walk on, and the Chaplain Command has rated
the current chapel as the worst in the command. Yet this decrepit
facility serves as the primary site for hosting families waiting to
view the dignified transfer of the fallen from the wars in Iraq and
Afghanistan. This project was not included in the President's budget
request but was added by the committee.
These are but a few examples of the types of programs and projects
funded in the bill that were not requested by the President. They are
not, as this motion would suggest, less urgent or unnecessary simply
because they were not requested by the President. They are the product
of careful analysis and evaluation by the committee of jurisdiction and
developed in close consultation with the authorizing committees.
I urge my colleagues to support the committee-passed version of the
MILCON-VA bill and reject the motion to commit it to the committee.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. HUTCHISON. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Madam President, I know my colleague, the chairman of
the Veterans Affairs and Military Construction Subcommittee, has
already spoken on the bill. I rise to make a couple of points.
First, I thank the Senate for not meeting on this bill last Tuesday,
when it was scheduled to be taken up and passed and, instead, allowing
so many of our colleagues to go to the memorial service at Fort Hood in
Killeen. It was a wonderful service. So many of our colleagues were in
attendance from all over the country to show their support for the
troops, to show sympathy for the families. There were approximately 200
family members there. Of course, the President and Mrs. Obama were
there. There were many House Members. It showed to the base and to the
thousands of troops who attended how much we care about them. I am
grateful to my colleagues for that gesture.
We have a good bill. My colleague Senator Johnson and I have worked
together on this bill. We have stayed within our budget. We have tried
to make sure we are covering the needs of our veterans.
The emphasis in the veterans section is in health care. We know we
must do more for the mental health and getting people who have been in
Afghanistan or Iraq back into the mainstream so they can lead normal
lives. We have done that. We have put over $4 billion into mental
health funding. We are setting up centers now for mental health
excellence. I am pleased we are making that a priority.
In addition, spinal cord and traumatic brain injuries. We know so
many of our wounded soldiers suffer traumatic injuries. We need to make
sure we have the ability to give them all of the rehabilitation
necessary for them to reenter a life of quality. We are adding one more
tier 1 polytrauma center. We have four. We are adding one more in San
Antonio, TX, in the VA center, which we are very pleased to be able to
do.

The homeless veterans program is also being augmented in this bill,
and I applaud Senator Johnson's efforts for creating the initiative
last year to increase the VA footprint in our rural areas for our
health care facilities. I think this is very helpful and warranted.
On the military construction side, this morning I was at Dyess Air
Force Base, where we broke ground on two incredible facilities. One
will be a maintenance facility for both the B-1 bombers and also the C-
130s and new C-130Js that are going to be coming into our system next
year. It is going to be a great facility, and we are very excited about
that. We have a Reserve training headquarters there at Dyess, as well,
and we broke ground on that building today.
In addition, our BRAC has been fully funded. That was a priority of
mine because I thought it was very important we fully fund our BRAC.
The PRESIDING OFFICER. The Senator's time has expired.
Mrs. HUTCHISON. Thank you, Madam President. I wish to go ahead to the
vote because I know it is important. But I will just say, I fully
support our bill and look forward to working on the amendments and
passing this bill, finally, tomorrow.

Amendment No. 2757

The PRESIDING OFFICER. There will now be 2 minutes of debate, evenly
divided, on Coburn amendment No. 2757.
The Senator from South Dakota.
Mr. JOHNSON. Madam President, I support the amendment from the
Senator from Oklahoma, amendment No. 2757, disclosure of reports. Our
side was willing to agree to this amendment by unanimous consent or
voice vote.
I urge my colleagues to support this amendment.
I yield back my time.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Madam President, I also support this amendment. I
think the reporting requirements are absolutely the right thing to do.
Madam President, I yield back the rest of my time and ask for the
vote to commence.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Byrd), the Senator from Delaware (Mr. Kaufman), the Senator from
Connecticut (Mr. Lieberman), and the Senator from Rhode Island (Mr.
Whitehouse) are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Kaufman) would vote ``yea.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. Graham), the Senator from Georgia (Mr.
Isakson), and the Senator from Louisiana (Mr. Vitter).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 93, nays 0, as follows:

[[Page S11371]]

[Rollcall Vote No. 344 Leg.]

YEAS--93

Akaka
Alexander
Barrasso
Baucus
Bayh
Begich
Bennet
Bennett
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Burr
Burris
Cantwell
Cardin
Carper
Casey
Chambliss
Coburn
Cochran
Collins
Conrad
Corker
Cornyn
Crapo
DeMint
Dodd
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Franken
Gillibrand
Grassley
Gregg
Hagan
Harkin
Hatch
Hutchison
Inhofe
Inouye
Johanns
Johnson
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
LeMieux
Levin
Lincoln
Lugar
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Specter
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Wicker
Wyden

NOT VOTING--7

Byrd
Graham
Isakson
Kaufman
Lieberman
Vitter
Whitehouse
The amendment (No. 2757) was agreed to.
Mr. JOHNSON. Madam President, I move to reconsider the vote.
Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Motion to Commit

The PRESIDING OFFICER. There are now 2 minutes evenly divided on the
Coburn motion to commit.
The Senator from Oklahoma is recognized.
Mr. COBURN. Madam President, this motion to commit is based on the
fact that we have a need among veterans that has an upcoming
authorization bill but there is no money in this bill for it. The
motion to commit would instruct the conferees to expand those eligible
to all veterans who have the same need, to find the money to pay for
the first year of this in that bill and not charge it to the next
generation.
The idea behind the motion to commit is that our veterans are a
priority, and if they are, we ought to defund things that are less of a
priority and make sure we take care of them. The obligation for us to
fulfill our commitment to veterans is not obviated by the lack of our
obligation to fulfill our commitment to the generation that follows.
I would appreciate the support of my colleagues on the motion to
commit.
The PRESIDING OFFICER. Who yields time on the motion? The Senator
from South Dakota.
Mr. JOHNSON. Madam President, as I have indicated before, I strongly
oppose the motion to commit this bill with instructions.
This bill funds programs that are vitally important to America's
military troops and their families and to our Nation's veterans. Most
of these programs were funded in the budget request but not all. This
bill includes additional funding for such programs as housing for
homeless veterans, rural clinics for veterans in underserved areas,
mortgage relief for military personnel under orders to move during the
current mortgage crisis, and for wounded veterans and surviving spouses
and funding for an array of regionally needed military construction
projects not included in the budget request.
The MILCON-VA bill before the Senate is a good piece of legislation.
Likewise, the veterans caregiver assistance authorization bill is
important legislation. The two bills should not be confused. Congress
should pass both the MILCON/VA appropriations bill and the caregivers
assistance authorization bill without further delay.
Madam President, I yield the floor.
Mr. COBURN. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be.
The question is on agreeing to the motion.
The clerk will call the roll.
The bill clerk called the roll.
The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in
the Chamber desiring to vote?
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Byrd), the Senator from Delaware (Mr. Kaufman), the Senator from
Connecticut (Mr. Lieberman), and the Senator from Rhode Island (Mr.
Whitehouse) are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Kaufman) would vote ``nay.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. Graham), the Senator from Georgia (Mr.
Isakson), and the Senator from Louisiana (Mr. Vitter).
The result was announced--yeas 24, nays 69, as follows:

[Rollcall Vote No. 345 Leg.]

YEAS--24

Barrasso
Bayh
Brownback
Bunning
Burr
Chambliss
Coburn
Cornyn
Crapo
DeMint
Ensign
Enzi
Grassley
Hutchison
Johanns
Kyl
LeMieux
McCain
McCaskill
McConnell
Risch
Roberts
Sessions
Thune

NAYS--69

Akaka
Alexander
Baucus
Begich
Bennet
Bennett
Bingaman
Bond
Boxer
Brown
Burris
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Conrad
Corker
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Gregg
Hagan
Harkin
Hatch
Inhofe
Inouye
Johnson
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lugar
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Shelby
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Wicker
Wyden

NOT VOTING--7

Byrd
Graham
Isakson
Kaufman
Lieberman
Vitter
Whitehouse
The motion was rejected.
Mr. JOHNSON. Madam President, I move to reconsider the vote.
Mr. PRYOR. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. JOHNSON. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BARRASSO. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BARRASSO. Madam President, I ask unanimous consent to be allowed
to speak as in morning business for up to 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Congressional Award Act 30th Anniversary

Mr. BARRASSO. Madam President, today I rise to recognize the 30th
anniversary of Public Law 96-114, which is the Congressional Award Act.
My predecessor, Senator Malcolm Wallop of Wyoming, was a champion of
this program.
In 1979, the late Congressman James Howard of New Jersey and Senator
Wallop introduced the Congressional Award Act legislation.
Thirty years ago, as you recall, America was still living with the
Cold War. The country was in the middle of a serious national
conversation, one that would require America's young people to
participate in a period of national service. It was a controversial
concept, in part because the country had eliminated the armed services
draft. Legislation to establish the congressional award had been
introduced in Congress for several sessions, but no action had yet been
taken. When Senator Wallop was approached as someone who might have an
interest, he quickly understood and embraced the core of the program.
Our Nation's young people have worthy contributions to make to the
world around it, he thought and he said, and the process required to
earn an award was a productive path to determine their future. Senator
Wallop felt that if America was thinking about requiring national
service, then Congress should recognize and thank America's youth for
their positive contributions made through the course of their own
lives. He saw the congressional award as the perfect opportunity to do
this.
When Senator Wallop agreed to serve as a sponsor of the congressional
award, he made it a full commitment. The legislation quickly moved
through

[[Page S11372]]

Congress, and it became law in his very first term of the three terms
he spent in the Senate.
The congressional award is available to any young person in our
country aged 14 to 23, no matter their life circumstances or their
current abilities. Through goal setting, participants move from where
they are to where they can be, providing service to others and
exploring their own interest in the process.
Recipients of the award are not selected for it. The recipients of
the award earn it. It has been my privilege to witness the success of
this program both in my home State of Wyoming and around the country. I
thank all of the Members of Congress who are involved in the
congressional award in their own States and districts. I encourage
those who have not yet done so to bring this program to their young
constituents. And most of all today, I thank our former colleague,
Senator Malcolm Wallop, for his gift--a gift of opportunity for
America's young people through the creation of a congressional award,
an award that was signed into law 30 years ago today.
Madam President, I yield the floor and suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BROWN. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so
ordered.

Health Care Reform

Mr. BROWN. Madam President, I have come to the Chamber pretty often
in the last 3 months, as we continue the debate on health care, to
share letters from people from Ohio, from Steubenville, from Wauseon,
from Ashtabula, from Hamilton and Middletown, people who write me
concerned with the direction of our health care system.
What I find in almost every one of these letters that have come from
Ohioans and people I mostly don't know, although I hear these stories
in person--last night I heard them in Cleveland, a few days in
Columbus; I have heard them from all over the State--is that so many
people, a year ago, if you had asked these same people who wrote the
letters, are you happy with your health care plan, they would have said
yes. But something happened in the last year.
Maybe they had a child born with a preexisting condition. Maybe they
got really sick and their insurance was canceled because it cost the
insurance company too much money or their premiums were high or they
owned a small business with 20 employees and one of their employees got
especially sick and the insurance price spiked and they could no longer
afford the insurance for any of their 20 employees.
The other thing I hear over and over is--a lot of people who send me
letters who have lost their insurance, they are my age or a little bit
older. I turned 57 last week. These are letters from people who are 57
or 62, particularly in their early sixties. They say it is so important
to them to turn 65 so they will have insurance. Think of that: I can't
wait until I am a little older so I can then have the security and
peace of mind and put that anxiety behind me. We have a health care
system now where people think they want to be a little bit older so
they can qualify for Medicare, to have the stability of Medicare.
Something is wrong with that. Those are the two things I hear over and
over: I need to be 65 so I can get Medicare because I know it is
reliable and stable or I used to be satisfied with my insurance but
look what happened.
Let me share some of these letters. Karen from Mahoning Valley,
around Youngstown, Poland, Austintown, that area of Ohio. She writes:

I am a high school art teacher. Last week I was speaking to
one of my students who said she had a health issue. I
suggested she go see a doctor but she said she can't because
her family doesn't have health insurance. I have suggested
she at least go see the school nurse but I know she needs
regular visits to a physician. I am appalled at the lack of
concern shown by many Members of Congress and by the special
interests trying to control the health reform process. Please
make the changes for the people who elected you and reap the
benefit of seeing positive change in our country.

Do you know what will happen? I don't know the student's health
problem, but what people would say about this is, if her student gets
sick, she can go to the emergency room and get health care. But that is
not the best way to deliver health care. But forget about the best way
to deliver it. What happens to the student? Maybe the student has
asthma. My wife almost died of asthma when she was a teenager, but she
had good health insurance because her dad carried a union card and
worked for a local utility company and was able to make sure she got
the care she needed. This young woman, say she had asthma. She would
only get coverage in the emergency room if she had an asthma attack.
She wouldn't get any help from the emergency room to manage her asthma
or any of the medicines she needs for asthma or any of the kinds of
things my wife's insurance pays for for her asthma and so many others
who have insurance. So what we are doing is jeopardizing this girl's
life and her health, and we are also costing the system more money
because instead of managing the asthma, she has to go for acute care.

So the emergency room does not mean everybody has health care
coverage in this country. It means they will take care of you if you
are really sick and you have some acute attack of something. They will
not take care of you to manage your diabetes or manage your asthma or
manage your heart disease. They only take care of you--the emergency
room--when you have a heart attack, if you are uninsured. What kind of
health care system is that? It is not as humane as it should be, and it
is way more expensive and it jeopardizes people's lives.
Margaret is from Clermont County, the whole other end of the State.
Clermont County is on the Ohio River, just east of Cincinnati, Batavia,
that part of Ohio.

My oral cancer was diagnosed in 2005. It came back in
December 2007, September 2008, and February 2009.
We've been lucky and found it early each time, which
allowed me to avoid radiation therapy--so far.
I worry all the time that eventually I won't be able to
work and would lose my health insurance.
My husband will retire in 2011, when he qualifies for
Medicare. But I'm only 61 and have to wait four years before
enrolling in Medicare.
I don't understand how opponents of reform can be
unsympathetic to the plight of millions of people who have
preexisting conditions or have to lose everything to qualify
for Medicaid.
We need reform now.

So here is another example. Margaret from southwest Ohio says: I am 4
years away from Medicare. My husband can retire and get Medicare. I am
still 4 years away. What are my options? Do we spend everything we
have--basically spend whatever their net worth is--to qualify for
Medicaid, which is available to many low-income people, or do I just
hope my cancer does not act up again before I turn 65? But again, she
needs maintenance of care, some medication to help her so she can make
it through this time.
Margaret, as Karen's student and Karen's student's family, could
benefit from a public option because it would give them more choice.
In Clermont County in southwest Ohio, two insurance companies have 85
percent of the insurance business in that area, that, I believe, four
county area: Hamilton, Clermont, Butler, and Warren Counties. Two
companies have 85 percent of the business. That means the quality of
insurance is less and the cost of the insurance is more. That always
happens when there is no real competition. So that is why it is so
important people have the public option, so Margaret can get insurance,
she can choose the public option or she can choose Aetna or WellPoint
or Cigna or Medical Mutual--any company she wants.
But it also means the public option will keep the price down because
more competition means better quality; more competition means keeping
the price down. As the Presiding Officer, the Senator from Oregon, said
in a meeting I was just in, one of the things the public option does
is--we tell people: You need to get insurance. There are a number of
people who, I am sure, have come up to him in Eugene or Portland or
places in Oregon, as they have come up to me in Mansfield and Ashland
and Galion and Crestline, OH, and said: You are going to make me

[[Page S11373]]

buy insurance. I don't want my insurance dollars to go to a private
company. I want the choice of letting them go to the public option, a
Medicare-like plan, so I have that choice and I can direct my insurance
dollars to the place I want them to go.
A third letter I will read--I have two more to share with my
colleagues--is from Bill from Cuyahoga County, which is the Cleveland
area. Bill writes:

My spouse was diagnosed with breast cancer over two years
ago. She worked for a commercial airline for 36 years, but
along with other employees in their mid-50s, she was asked to
take early retirement or face the possibility of reduced
retirement benefits.
She took the early retirement package and subsequently
found a part-time job with a local bank.
The health insurance coverage is inadequate and barely pays
any benefits.
We have been together for more than 10 years, and during
that time she didn't have so much as a cold.
But boom, the next thing you know she is sick with breast
cancer, with chemo and medications that weaken her.
After her treatment sessions, she would then go off to work
because she needed to keep her health benefits.
But finally, a few weeks ago, se quit her job. She's on
COBRA now which we hope will last until she turns 65 years
old and is eligible for Medicare.
My wife paid her [insurance] premiums for 36 years--

When she was with the airline--

while she was healthy but now that she is older and needs
insurance, the benefits are cut or non-existent.

Bill's story is what we hear over and over, and it is in this same
letter. Bill's story is: My wife paid for insurance all these years. We
thought we had good insurance, and we did have good insurance until we
needed it, until my wife got sick. Then the insurance was not so good.
And Bill's story, with his wife, is: She looks forward to being 65 so
she can have Medicare coverage.
Again, what kind of health care system does that? The insurance is OK
until you really need it, and then they cut you off if you are too
expensive, they cut you off if you have a preexisting condition, or
they cut your son or daughter off because a baby is born with a
preexisting condition. What kind of health care system says: Boy, I
can't wait until I am 3 years older so I can have that good government
plan, that Medicare plan that will mean stability and predictability?
We clearly need to help people get through this anxiety that so many
Americans have because they just hope they do not get sick before they
turn 65 or they hope they do not get too expensively sick, if you will,
because they are going to lose their insurance because their insurance
company will cut them off. That is why we need the public option. We
need insurance reform. We need no more preexisting condition
exclusions. We have done that in the bill.
No more discrimination based on gender or disability or race or age
or geography. We have done that in the bill. No more disqualifications
or annual cap because your health care costs too much, you spent too
many days in the hospital, went to too many expensive doctors, had too
much treatment. It is so expensive the insurance company is going to
cancel your insurance. We are going to say: No more of insurance
companies gaming the system.
We know--and the Senator from Oregon was on the floor with me a
couple weeks ago and talked then--that insurance companies are making
more and more profits, a 400-percent increase from 7 years ago.
Insurance company CEOs' salaries--the Aetna CEO makes $24 million a
year. The CEOs of the 10 largest insurance companies in the country
average $11 million in pay.
How are they doing that? They are doing that by cutting off people
such as Bill's wife. They are doing that by using preexisting
conditions and keeping people from getting insurance. That is why the
public option for Bill and his wife would mean they would be in a
situation where they could have more choice--those insurance reforms I
talked about. The public option would help to enforce those insurance
reforms so Aetna and Blue Cross and WellPoint and these companies could
not game the system the way they have so they can pay these huge
salaries and have these increasingly huge profits. The public option
will simply give people more choice. And it is only an option.
Mr. DURBIN. Mr. President, will the Senator yield for a question?
Mr. BROWN. Sure.
Mr. DURBIN. I tell the Senator, I was back home in Illinois during
the break and went to southern Illinois, which is an area the Senator
would be familiar with in a second. It is a small town, rural area. I
love it. That is where my roots are in our State. I stopped at a hotel
in the area of Marion, IL, and there is a nice lady who fixes breakfast
in the morning for the guests. Her name is Judy. She could not be any
kinder and nicer and always has a warm greeting.

She came up to me, as she was getting a cup of coffee, and said: Is
this health care thing going to help me?
I said: Do you have health insurance?
She said: Oh, no. I've never had health insurance.
Judy, I am guessing, is about 60 years old.
I said: Well, I can tell you, if you just give me an idea about
yourself, I will give you kind of an idea of what you might expect.
She said: Well, they keep cutting our hours at the hotel here. I am
down to 30 hours a week, and I get paid about $8 an hour.
So I said: Well, I'll do a quick calculation. I think you make about
$12,000 a year.
She said: Yeah.
Imagine, living on $12,000 a year, which is what her gross income is.
I said: By most of the bills that are going through Congress now,
unless you are making over $14,000 or $15,000 a year, you will be
covered by Medicaid, which means you are going to have health insurance
for the first time in your life through Medicaid.
She said: I don't have to pay for it?
I said: No. You're in a low-income situation. You wouldn't have to
pay for it at $12,000 a year.
I say to the Senator, I thought, as the Senator was just speaking,
what if she were making $15,000 a year and her employer did not offer
health insurance? As I understand it, at that point, most of the bills
say: It is time for you to find a way to find health insurance. And the
insurance exchange will give you some options from which to choose.
What the Senator is saying--what I believe, and I think what the vast
majority of our people believe--is, one of those options should be a
not-for-profit plan, the lowest cost for Judy to buy into. As the
Presiding Officer pointed out in an earlier meeting we had, if we were
to say we are going to impose an obligation on people to buy health
insurance but only give them private health insurance options, I think
most people would say: Wait a minute. If you are going to impose an
obligation on me to buy health insurance, give me some affordable
options.
Our support for a public option is to come up with a not-for-profit
plan that is not trying to please shareholders, that is not advertising
on radio and television, and that does not hire lots of people, clerks
to say no. That, to me, is a sensible outcome for the obligation to buy
health insurance because it gives people choices.
I salute Senator Harry Reid because, as our Democratic leader, he
said maybe there are some Governors, some States, some people who just
do not want a public option. Let them decide to opt out of the system.
They can opt out. They are not going to be forced in. They can opt out.
I think that is a reasonable way to move.
So I say to the Senator from Ohio, you probably have a lot of your
constituents, just like mine--like Judy who works down at this hotel--
who are uninsured at the moment. She has diabetes, incidentally. She
told me she had some medical issues and could not even go to a doctor,
see a doctor, because she just does not make enough money. That is the
reality of life for a lot of hard-working people in Illinois, and in
Ohio, I am sure.
Mr. BROWN. Mr. President, I thank Assistant Majority Leader Durbin.
That story is so common. I was in a restaurant in Columbus one day
and had breakfast with my daughter, who lives there. The young woman
who waited on us, who is working probably about the same number of
hours--she is waiting tables. She is doing a little better than that, I
think, in terms of her income. She is also tutoring some music students
because she went to college and got a degree in music. She hopes to
turn that into a business. She

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is making more money than what would qualify her for Medicaid. With the
legislation, she would get the opportunity.
She said: Are you going to pass this bill?
I said: Yes.
She said: Are you going to have a public option?
I said: Majority Leader Reid is putting the public option in the
bill. The House passed a bill with the public option. So I believe we
are going to have a public option in the bill.
So again, as Senator Durbin said, depending on their income, people
will take their personal money, adding it to help they get from the
government, to be able to pay the premiums. Let them decide for
themselves. We do not want to tell them they have to go into a
Medicare-like public option. We do not want to tell them they have to
go to Aetna or Cigna or Blue Cross or WellPoint. Give them that chance
and give them that choice. They can compare on cost. They can compare
what kind of service they get, what kind of illnesses are covered.
Then, as Senator Durbin pointed out, one of the things with private
health insurance is that a big part of their profits--and their profits
have gown, as have their salaries for the top executives--a big part of
their profits comes from hiring bureaucrats who deny care. They first
try not to insure you by invoking a preexisting condition or something
so you cannot get insurance. They hire a bunch of people to deny you
even getting the insurance.
Then, if you are able to qualify for insurance because you do not
have a preexisting condition, and you get sick, then they hire a bunch
of bureaucrats who process your claim and many times turn you down.
About a third--almost a third--of claims initially are turned down by
an insurance company. More of them are accepted after you appeal.
But, for example, take Judy in Marion, IL, who the Senator just
talked about. If she were to have coverage from a private health
insurance company--you know how hard people work in hotels, whether
cleaning rooms or waiting tables, or being at the front desk or
whatever they are doing, and doing maintenance work there. They are
working so hard. They are very tired at the end of the day, as are most
Americans. They file a health care claim that is legitimate. The
insurance company tells them no. Then they have to find the time during
the work day, if they work when the insurance companies' lines are
open, to call and call and call.
Some of them call their Congressman or Senator, and we try to help
people all the time push the insurance companies. They will talk to us.
We are much more likely to be able to help them than they can help
themselves when we call in. But why should that be? Why should they
have to call their Members of Congress or call Senator Durbin or
Senator Merkley or me to help fight an insurance company?
When people are sick, the last thing they want to do is fight an
insurance company to get reimbursed.
We know what the President said during the 2008 Presidential race
about his own mother, that she was dying from cancer and had to fight
with insurance companies. It is simply not the kind of health care
system we should have.
I have met so many Judys from Marion, IL, in places such as
Steubenville and Cambridge and Lima and Findlay, OH, who work so hard
and cannot get insurance and cannot manage their care, cannot manage
their health. People like that die younger than people who dress like
this and have good insurance. People like that so often--Judy has not
been able to take care of her diabetes. My son-in-law has diabetes. He
was diagnosed with type I diabetes at the age of 29. That was about 5
years ago. He works for Ohio State. He has a good health care plan. He
takes really good care of himself, but he has the support of a health
care system to do it. He is in the capital city with great private
hospitals and public hospitals, with good insurance, but there are so
many who can't go to those hospitals unless they are so acutely sick.
Then they go to the emergency room. Why do we want people with diabetes
or asthma or a heart condition to wait until they are sick to go to an
emergency room instead of managing their care?

Our health care system in this country, as good as it is to so many
people who have good insurance, is the worst anywhere. Let me put it
this way: We have more people in the hospital who have chronic
conditions such as diabetes and heart disease and asthma, conditions
that one can manage outside a hospital at a much lower cost. In this
country, they are more likely to end up in a hospital than in any other
country in the world, and that is one of the things our legislation
will fix.
Let me share one last letter, and I appreciate Senator Durbin joining
us. This is from Deborah from Columbiana County, a county just like
Marion, IL; a small, rural county; a pretty low-income county, a lot of
job loss, just south of Youngstown along the Ohio River. Deborah is a
56-year-old wife of a disabled retiree who suffers from a heart
condition, arthritis, and three ruptured discs in his back.
Within 1 month of his retirement, the steel company he worked for
filed for bankruptcy and went out of business. This left them with a
reduced monthly pension and the loss of all health care coverage that
he worked for 33 years to earn. They went without insurance from 2003
until he qualified for Social Security disability and Medicare in 2008.
Deborah doesn't qualify, however, for either Social Security disability
or Medicare. She has tried to get private health care coverage, but
they can't afford the $2,400 to $3,000 a month for premiums.
She says:

My question is this: In the health care reform, will there
be a public option that doesn't disqualify me because of my
preexisting condition? Will I have to continue trying to
purchase coverage from private insurance companies?

Exactly what Senator Durbin said: You never hear of Medicare denying
somebody coverage because of a preexisting condition. We are certainly
hearing about it from Wellpoint and CIGNA. We certainly hear about it
from other private insurance companies. But we are never going to hear
about the public option--once we enact it as part of U.S. law, we are
never going to hear about the public option disqualifying people
because of a preexisting condition.
So what Deborah wants and needs is the choice. She can choose a
private plan or she can choose the public option. But she can be
assured the public option will not disqualify her or her husband or
anybody else with a preexisting condition. She knows even if she gets
sick and she spends a lot of money for her health care and for
hospitals and treatments and doctors visits that her insurance would
not be cut off because her care costs so much money. That is the beauty
of the public option. It brings in competition, it keeps prices down,
and it protects the public from being denied care because of a
preexisting condition or illness.
In the next few weeks, Senator Reid plans to bring this bill to the
Senate floor. It will include a strong public option with a State opt-
out, as Senator Durbin said, so if a State such as Arkansas or Nebraska
or wherever decides this is not for them, they can go and talk to their
Governor and to their legislature and they can opt out of it. I don't
think very many States will because I think the public option will
matter for millions and millions of Americans. I believe hundreds of
thousands of people in my State will decide they want to be in the
public option. But even if they don't, they will understand--people
will know their private insurance will be better, it will be a higher
quality and less cost because of the competition from the public
option.
I thank the President, and I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, I speak with gratitude to Senator Brown
from Ohio who regularly comes to the Senate floor to address this issue
which will be pending soon before the Senate and which may be the most
important issue we will face during our lifetime. So I am glad his
leadership is demonstrated again this evening on this issue.

Guantanamo Bay

When people are asked about our troops on Veterans Day, there is a

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warm feeling about the sacrifice and courage they show by volunteering
to serve our country. We were all saddened by the tragedy at Fort Hood.
We are saddened to learn that even more soldiers are dying overseas. We
are worried about the multiple deployments and the conditions they face
overseas. We are worried, when they come home, to keep our promise to
them that they get the medical care they need.
One of the issues that relates directly to our troops and their
safety is the issue of Guantanamo. Guantanamo is a detention facility
that was created by the previous President after 9/11 in an effort to
try to gather those we thought were dangerous to the United States and
other places and hold them safely. That facility was opened and
expanded at considerable expense, but, unfortunately, during the course
of its early history it became controversial, particularly overseas.
Guantanamo came to symbolize in the minds of many overseas an image of
the United States of which they were critical. Whether that was just or
unjust, it is a fact.
As a result, GEN Colin L. Powell, who served as Chairman of our Joint
Chiefs of Staff, as well as Secretary of State under President George
Bush, said--and I paraphrase him--I wouldn't close Guantanamo tomorrow,
I would close it this afternoon. Similar statements have been made by
Admiral Mullen, who is now Chairman of our Joint Chiefs of Staff, about
the danger that Guantanamo poses as long as it is open. GEN David
Petraeus, who has served and commanded our troops overseas and knows
terrorism, as it has stared him in the face, and who has seen its
results, has said Guantanamo should be closed. Former President George
W. Bush on eight different occasions called for the closure of
Guantanamo. It has been a strongly held position by the former
President and many in his Cabinet, a position shared by many of us in
Congress, and a position which was the leading position taken by our
new President when he was elected earlier this year--the closure of
Guantanamo.
The obvious question was, What do we do with the remaining prisoners?
Some of them are safe to release; others are not. What happens to those
who are not? We have had a debate back and forth on the floor of the
Senate. The position taken by most on the Republican side of the aisle
is to oppose the closure of Guantanamo. They oppose the position taken
by General Powell and General Petraeus and so many others, but that is
their right to do. Many of them have challenged this President, if he
is going to close Guantanamo, to say what he would do with these
detainees.
Over the weekend there was a disclosure of a plan the President is
developing. They have not made a final decision on where these
detainees will go, but one of the options they are considering is in my
home State of Illinois. It is in a small community called Thomson, IL,
in Carroll County. You will find it on the northwest corner of our
State about 50 or 60 miles north of the Quad Cities, Rock Island area,
about 50 or 60 miles southwest of Rockford. It is a very rural county.
It is a county that has faced enormous difficulties in the past and
faces high unemployment today.
About 8 or 9 years ago, the State of Illinois built a state-of-the-
art, maximum security prison in Thomson, IL. It holds 1,600 beds and
the latest technology to safely contain the prisoners who were sent
there. Then my State fell on hard times and couldn't open the prison,
and it sat there. The town of Thomson, Carroll County, made
infrastructure investments in anticipation of this prison coming and
new employment coming to the area. Now, for the last 8 years, they have
paid the bills on that infrastructure but have had very few jobs at the
prison.
Currently, there are about 100 inmates being held in a minimum
security setting. The prison has not been utilized as it should be or
could be. So the mayor of the town, who is a very good man--we call him
Village President back in Illinois--Jerry ``Duke'' Hebeler, wrote a
letter to me and to Governor Patrick Quinn and to the President and
said: I hope you will consider our empty prison sitting in Thomson, IL,
as a place for Federal prisoners, including the detainees at
Guantanamo.
Well, I saw this letter and thought that may be the answer. I
submitted the letter to the administration. Governor Quinn hand carried
it to the President of the United States and asked him to consider the
Thomson facility.

They are now, as of today, on the ground looking at what they would
do to convert this into a Federal prison, but also a prison that would
house the Guantanamo detainees. It is a little complicated because
under the Geneva Convention, those who are arrested in war have to be
held in a setting separate from the ordinary corrections facilities of
our government. So the Department of Defense maintains a military
prison at Guantanamo and would at Thomson as part of that prison
facility, but it is separate. It is run by the Department of Defense,
not by the Bureau of Prisons.
So the idea is to take about one-fourth of the Thomson facility and
set it aside for the Guantanamo detainees. I don't know the exact
number we would have transferred there, but we are told it would be
fewer than 100 prisoners. That leaves the rest of the facility with
over 1,000 beds to alleviate some of the overcrowding we have in
Federal prisons today.
The net result of this would be dramatic in terms of the local
economy. It is estimated it would create anywhere between 1,800 to
3,200 jobs, some 1,800 at the prison itself and others in the community
for businesses that would support the prison. The economic activity
associated with this new prison is estimated to be over $200 million a
year, which means in a 4-year period of time anywhere from $800 million
to $1 billion will be spent in this community.
I need not tell the Presiding Officer, as you reflect on your own
home State of Oregon, what it means for a small town in a rural
community to have that kind of influence of people and spending. Twenty
percent of the jobs will likely go to people living in Iowa across the
river, easily accessible, 80 percent on the Illinois side. That is just
the best estimate. But the net result of it would be a positive
injection of jobs and economic activity into a very tough environment
economically.
When we talk about creating jobs, most of us would turn cartwheels as
Senators and Congressmen to announce 100 jobs coming to any town. The
notion of 2,000 to 3,000 jobs coming is unimaginable, and it is a once-
in-a-lifetime opportunity.
Governor Pat Quinn has endorsed it. I have endorsed it as well. We
are working out the details and getting questions answered to see if we
can move forward and do it on a timely basis.
Not surprisingly, critics have appeared, some within our own State.
The Republican--not all of the Republicans in Congress in our State,
but many of them--have held press conferences opposing the sale of the
Thomson prison to the Federal Government. They are entitled to their
point of view, and I respect them even though we may disagree. But I
will tell my colleagues that several of the arguments they are making
against the use of the Thomson prison are just plain wrong.
One of them--I think the overriding argument--is that we should be
afraid of what it means to bring Guantanamo detainees to the United
States, on our soil. What they fail to acknowledge is that currently we
have 340 convicted terrorists in America's prisons today, and 35 in the
State of Illinois, some of them convicted for al-Qaida activities. It
has not endangered the people living near those prisons. In fact, they
may not even be the most dangerous people in these prisons. The fact
is, they are there. The idea of bringing in fewer than 100 into the
Thomson prison is not going to change this calculus much, if any. There
will still be terrorists held in other prisons in our State, and
terrorists would be held there, and that is something our prison people
do, and do well. The guards and the administrators know how to handle
these prisons safely and securely.
When this Thomson prison is reconfigured, if it is chosen, it will be
safer than any supermax facility in the United States, and there has
never been an escapee from a supermax facility. That is a fact.
The second argument made by one of the Congressmen is one that is
troubling because he said he feared that

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these detainees would be released into the United States. That
Congressman should know better. We have passed two bills signed by
President Obama which prohibit releasing detainees from Guantanamo into
the United States. It is not going to happen. It shouldn't happen. So
that is a fear that should be dispelled.
The third argument this Congressman made was that under the rules,
every detainee would be entitled to 10 visitors a year, which meant if
there is 100 detainees there would be 1,000, as he called them, Islamic
followers, jihad followers, coming into the State of Illinois, landing
at O'Hare and heading over across our State to the Thomson area.
Well, he is just plain wrong. The detainees currently held at
Guantanamo are not entitled to any visits from family and friends.
None. The only visits come from attorneys, their legal counsel, and
that rule would still apply at the Thomson prison. So this notion of a
thousand jihadist visitors coming to Illinois isn't going to happen. It
wouldn't happen.

The fourth point that has been raised is one that I really think gets
to the heart of the issue. It is the argument that if we brought these
detainees to the United States and put them in a prison, there would be
retaliation against the United States.
This one Congressman has gone so far as to pinpoint specific
buildings in Chicago in which he thinks the terrorists would try to
destroy and kill innocent people. I think that kind of designation of
specific buildings crosses a line we should not cross. I don't know
that it gives ideas to terrorists, but to speak of this so casually is
wrong. I wish he hadn't said that. Think about what he is arguing. He
argues that if we capture, prosecute, and incarcerate those who would
terrorize the United States, we run the risk of retaliation. His
argument is: Let's not make them mad. Well, I couldn't disagree with
him more. As heartbreaking as 9/11 was, after that day we came forward
with a determination to tell the world that the United States was going
to make those responsible answer for the violence of that day and any
other violence perpetrated upon the United States. That is what we are
doing.
We have 340 terrorists currently incarcerated across America. The
fact that we have successfully prosecuted 195 of them since 9/11 says
we are going to use our system of justice to bring justice to this
situation. If we are going to cower in fear, believing the enforcement
of our laws and the incarceration of terrorists will provoke more
terrorism, then we will have lost our way as a nation. We need to show
the courage of our convictions to let people know the rule of law will
be applied in the United States to all who harm us. That is what this
incarceration at Thomson would do.
I don't know if President Obama will make the final decision to send
these detainees to his home State of Illinois. I believe we can work
with the Bureau of Prisons and the Department of Defense to make
certain that they are held safely, that they pay the price for what
they have done, and that they are held as long as necessary to avoid
any danger to people of the United States. We can do this in a humane
fashion, and we can do it in a professional fashion. We don't have to
apologize or run scared, as some of the critics of this idea are today.
In conclusion, I am proud of the people of Carroll County in Thomson,
IL, for stepping up and realizing they desperately need help
economically, seeing a great asset in that community that can be
utilized to not only serve our State but to serve our Nation and to put
our best foot forward to show we will apply standards of justice there
that are applied across America--standards that are fair, standards
that recognize the basic freedoms we hold dear and the system of
justice we hold dear that says those who are guilty of crime will pay a
price.
Mr. President, I yield the floor.

____________________