TARP Recipient Ownership Trust Act of 2009

Mr. President, I sought recognition to comment on the forthcoming proceedings on the confirmation of Judge Sotomayor for the Supreme Court of the United States.

Judge Sotomayor comes to this position with an extraordinary record. Her academic standing at Princeton was summa cum laude, a graduate of the Yale Law School where she was a member of the Yale Law Journal Board of Editors.

Then in her practice, she was an assistant district attorney in Manhattan, a position which gives very extensive experience in many facets of the law,

something I know in my own experience years ago as an assistant district attorney.

She was in private practice with a very prestigious New York law firm, then served on the U.S. District Court, and more recently on the Court of Appeals for the Second Circuit.

The hearings will give Judge Sotomayor an opportunity to respond to a number of issues which have been raised about her background. I think Chairman Leahy was correct in moving the hearing dates so that the confirmation process could be concluded in time for Judge Sotomayor, if confirmed, to sit with the Court during September when the Court will decide what cases it will hear.

A great deal of the important work of the Supreme Court of the United States is decided on what cases they decide not to hear. And perhaps that in some ways is as important as the cases they do hear, the cases they do decide. It is during that period of time when the decision is made of a grant of certiorari with four Justices deciding which cases to hear where the presence of a new Justice could be very important.

Confirmation hearings at an early stage will give Judge Sotomayor an opportunity to respond to many questions which are highly publicized. It is a very noteworthy matter when a nominee is being considered for the Supreme Court. There is a lot of publicity, and some of it is controversial.

As a matter of fairness, the earlier a nominee can have an opportunity to respond to those issues--a question has been raised about her decision on the New Haven firefighters case. Well, the nuances of disparate impact do not lend themselves too well to brief newspaper articles nor sound bites on the talk shows. They are made for Supreme Court hearings.

Her decision on property rights following the Kelo decision has been subjected to certain comment. There again, the nuances require a hearing. Or her statement about ``a wise Latina woman'' has been widely commented upon. And there again, she ought to have an opportunity to speak to those issues.

There have been some questions raised about her decisions under the Second Amendment, membership in the Belizean Grove, and a lot of speculation. So let's bring on the hearings where there will be an opportunity for Judge Sotomayor to present her views.

Based on what I have studied in her opinions, an extensive meeting which I had with her, she is a powerful intellect and prospectively she is likely to be able to have good comments. But that is what the confirmation process is all about. So let's move forward on it to the July hearing dates so we can consider her nomination and she can have an opportunity to respond to those issues.

There have been contrary views about the value of confirmation hearings. There are some who say they have outlived their usefulness, pointing historically to the fact that prior to 1955 or thereabouts there were very few confirmation hearings, only when there was some extraordinary question.

In recent decades the confirmation hearings have been extensive. Having participated in some 11 of those confirmation hearings, it is my judgment that they are very worthwhile, from many points of view.

It presents an opportunity to have a public focus on the appropriate role of the Supreme Court, a lot of very major questions about the respective roles on the separation of powers between the courts and Congress, on fact finding, and on the record.

There are important questions on the relative authority of the executive versus the Court on the issues of detention, of habeas; important issues on the relative power of the Congress versus the executive, as exemplified by the conflict between the Foreign Intelligence Surveillance Act, and the powers of the President under article II of the Constitution as Commander in Chief.

There are also hearings where it is a public focus on a civics lesson as to what the Court does, and public attention is focused on the Court. My preference would be, as I have noted on legislation I have introduced, which has been passed out of the Judiciary Committee in prior congresses, to have the proceedings of the Supreme Court televised under certain circumstances. That has not yet been approved. But I think the day will come when the Supreme Court hearings will be televised. I think they could be televised without having showboating, and real insight by the public as to what happens at the Supreme Court of the United States, just as hearings of the House of Representatives and the Senate are televised.

There are a lot of quorum calls, but there are debates that go on here for the public to see, where very major matters of public policy are decided.

At least the confirmation hearings do bring the role of the Court into focused hearings, I think, to a very beneficial effect.

We had the hearings on Judge Bork widely commented upon, very extensive hearings on his writings, his view of original intent. There was an opportunity for the American people and the scholars to see what was involved.

There has grown a myth that in that proceeding, the nominee was ``Borked,'' turning his name into a verb. My own view is that is not so; that the decision made in rejecting the confirmation of Judge Bork turned on the record, turned on what happened in the Judiciary Committee proceedings. When we took a look at original intent, it was way outside the mainstream of constitutional law, way outside the constitutional continuum. If we look to what Congress intended in 1868, when the equal protection clause was passed in the 14th amendment in this Chamber, the galleries were segregated. African Americans were on one side and Caucasians were on another. So the intent of Senators certainly could not have been that equal protection meant integration. But after Brown v. Board of Education in 1954, there was no doubt equal protection did mean integration.

The confirmation proceedings of Chief Justice Rehnquist were very informative. Chief Justice Rehnquist had more than 30 votes cast against his nomination in 1986. The issue arose as to the adequacy of his answering questions as to the role of the Supreme Court contrasted with the role of Congress. Chief Justice Rehnquist had written an interesting article for the Harvard Law Record, back in 1959, when he was a young practicing attorney, criticizing the Senate for the confirmation hearings of Justice Whittaker, not asking probing questions about due process of law but only extolling Justice Whittaker's virtues because he represented both the State of Kansas and the State of Missouri, living in one State and practicing law in the other. When Chief Justice Rehnquist was asked questions about the authority of Congress to take away the jurisdiction of the Supreme Court, he answered, finally, that the Congress did not have the authority on first amendment issues but declined to answer about the fourth amendment, fifth, sixth or eighth or to answer a question as to why he would respond on the first amendment but not on others.

There are some issues which are so firmly established that they are outside the respected rule that we don't ask nominees to say how they will decide upon cases that might come before them. But where we deal with issues such as Marbury v. Madison or Brown v. Board of Education or the authority of the Congress to take away jurisdiction of the Supreme Court in derogation of Marbury v. Madison, there are questions which ought to be answered.

The confirmation hearings provide an opportunity to go into detail about the functioning of the Court. A few years ago, when the issue of judicial pay was before the Congress, a number of Senators were invited to confer with the Justices. It provided an opportunity for me to see the conference room. I had been a member of the bar of the Supreme Court, argued a few cases there but had never seen their conference room. Frankly, it was quite an eye-opener--a small room, plain table, modest chairs, very intimate, very austere, quite some insight as to how close the Justices are together. When we talk about diversity, how long it took to get an African American on the Court, Thurgood Marshall did not go to the Court until 1967. Justice Lewis Powell made a comment reportedly that just having Thurgood Marshall in the room made a difference in perspective. Surprising, perhaps scandalous, that it took until 1981 to have a woman

on the Supreme Court. Now there have only been two. When I was asked for recommendations for the current vacancy, I recommended four women. To say that a woman's point of view is different and valuable is trite. When I was elected to the Senate in 1980, Senator Kastenbaum was the only woman in the Chamber. Senator Hawkins was elected that year. Now we have 16 and growing. It has been a very great addition and improvement to the deliberations here to have more women. Another woman on the Supreme Court would be a plus there, if Judge Sotomayor is confirmed.

Also, the diversity on being a Hispanic is important. We live in a very diverse society. When one sees that small Supreme Court Chamber, they can see the intimacy and can almost visualize the intellectual discussions and the powerhouses in that room and how the big cases are decided, with the Court having the last word on life and death, a woman's right to choose, medicinal issues of attempted suicide, the death penalty in capital cases, all the cutting edge issues of our society.

The confirmation proceeding of Judge Sotomayor will give us an opportunity to inquire into some very important issues on executive versus judicial authority, on the authority of the Court versus the Congress. Toward that end, I wrote a letter to Judge Sotomayor, dated June 15. I ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.

As I note in the opening paragraph, our so-called courtesy call lasted more than an hour. At that time, I commented to her that I would be writing on other subjects on which I intended to comment at her hearing. She responded she would be glad to have that advance notice. The issue I focus on in this letter involves the respective authority of the Congress contrasted with the Court on the establishment of a record to warrant legislation which Congress enacts. I noted I had written to Chief Justice Roberts in a similar vein back on August 8, 2005, in advance of his confirmation hearings. I take up in my letter to Judge Sotomayor the same issue I took up with Chief Justice Roberts; that is, decisions of the Supreme Court in invalidating congressional enactments, declaring them unconstitutional, because of what the Court says is an insufficient record.

I note the case of United States v. Morrison, which involved legislation to protect women against violence, where the Court was denigrating, disrespectful to Congress, where the Court said the congressional findings were rejected because of our ``method of reasoning,'' as if there is some unique quality which comes to the nominee at the time of confirmation in walking across the green between the hearing room and the Supreme Court chambers.

A dissent by Justice Souter noted that the Court's judgment was ``dependent upon a uniquely judicial conference,'' as if the competence of the Congress was to a lesser extent. Justice Souter commented, in disagreeing with Chief Justice Rehnquist, who said there was an insufficient record, that ``the mountain of data assembled by Congress included a record on gender bias from a task force of 21 States, eight separate reports by the Congress.''

There was a similar finding by the Supreme Court of the United States in the case of Alabama v. Garrett, where the Supreme Court decided there was an insufficient record to support the enactment of title I of the Americans with Disabilities Act, even though there had been task force hearings in every State attended by more than 30,000 people, including thousands who had experienced discrimination, with more than 300 examples of discrimination by State Governments. Notwithstanding that, the Supreme Court in Garrett said there was an insufficient record.

In dissent, Justice Scalia called the test of congruence and proportionality a flabby test, a test that was ``an invitation to judicial arbitrariness and policy-driven decisionmaking.''

When we look to a standard of congruence and proportionality, it is very vague. Sharp divergence from the standard that Justice Harlan articulated in Maryland v. Wirtz in 1968, whether there was a rational basis for the congressional decision. So that as Justice Scalia noted in his dissent in Tennessee v. lane, the standard of congruence and proportionality was flabby. Justice Scalia went on to say:

Worse still, it casts this Court in the role of Congress's

task master. Under it the courts--and ultimately, this

Court--must regularly check Congress's homework to make sure

that it has identified sufficient constitutional violations

to make its remedy constitutional and proportional.

In the confirmation hearings of Chief Justice Roberts, he responded in a way very supportive of the role of Congress, where the Court should be deferential to the Congress. In response to a question by Senator DeWine, he said the Supreme Court ought to defer to congressional findings, and the answer will be in the Record with this letter.

In response to my questioning, Chief Justice Roberts said:

And I appreciate very much the difference in institutional

competence between the judiciary and the Congress, when it

comes to basic questions of fact finding, development of a

record and also the authority to make the policy decisions

about how to act on the basis of a particular record. It is

not just disagreement over a record. It is a question of

whose job it is to make a determination based on the record.

As a judge, that you are beginning to transgress into the

area of making a law is when you are in a position of

reevaluating legislative findings, because that doesn't look

like a judicial function.

There, the Chief Justice comes to grips with the dominant role of the Congress that ought to be deferred to and says, when the court takes over, it is judicial lawmaking, which is something which is generally recognized to be in an area which ought not to be transgressed. ``Transgression'' is Chief Justice Roberts' word, that it is up to Congress to make the laws and up to the Court to interpret them.

In a hearing on the Voting Rights Act on April 29, 2009, Northwest Austin Municipal Utility District v. Holder, on the issue of the sufficiency of the record, here we have 16,000 pages of testimony, 21 different hearings, 10 months of action. Congress, in 2006, reauthorized the Voting Rights Act. In listening to the Supreme Court argument and reading the record--you cannot draw any conclusions totally--but it looks very much as if the Court may be on the verge of finding the record insufficient.

Chief Justice Roberts had this to say in the course of the argument on the Voting Rights Act:

. . . one-twentieth of one percent of the submissions are

not precleared. That, to me, suggests that they are sweeping

far more broadly than they need to address the intentional

discrimination under the Fifteenth Amendment.

That's like the old elephant whistle. You know, I have this

whistle to keep away the elephants. You know, well, that's

silly. Well, there are no elephants, so it must work. I mean,

if you have 99.98 percent of those being precleared, why

isn't that reaching too broadly?

We will all be watching very closely to see what the Supreme Court of the United States does in the voting rights case and especially the opinion of Chief Justice Roberts, who has testified so emphatically at his confirmation hearing as to the role of the Congress being dominant, and it was, as he put it: ``. . . as a judge that you may be beginning to transgress into the area of making a law . . . ''

So those are issues which I am going to be addressing to Judge Sotomayor in the course of the confirmation hearings. I am not going to ask her how she is going to decide a case. That is outside the bounds. But I think it is fair to inquire as to what is the standard. Is it the Justice Harlan standard of rational basis or is it a standard of congruent and proportional--a standard which is of recent vintage in the City of Boerne v. Flores case, and having been applied in cases where it is very difficult to understand the conclusions of the Court, if you take Tennessee v. Lane, where one article of the Americans with Disabilities Act was upheld and contrast it with the Alabama v. Garrett case, where it was stricken.

Justice Scalia, in the argument of the voting rights case, took issue with the Congress on a 98-to-0 decision, suggesting if it is 98 to 0, it must not have been too carefully thought through.

It reminds me of the 98-to-0 vote Justice Scalia got on his confirmation and the many unanimous decisions of the

Supreme Court. I will ask to have printed in the Record a group of recent cases--10 or more--where Justice Scalia decided cases 9 to 0.

So if this legislative body--the Senate--votes 98 to 0 in favor of renewing the Voting Rights Act, relying upon the extensive record, which I have cited, that is not a sign of weakness. That is not a sign that the Senate does not know what it is doing with a 98-to-0 vote.

So the questions which I have posed for Judge Sotomayor are these:

First: Would you apply the Justice Harlan rational base standard or the congruent and proportionality standard?

Second: What are your views on Justice Scalia's characterization that the ``congruence and proportionality standard'' is a flabby test and an ``invitation to judicial arbitrariness and policy-driven decisionmaking,'' where Justice Scalia says that is the way for the courts to make law on a standard which is so vague?

Third: Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's ``method of reasoning''?

And fourth: Do you agree with the division of constitutional authority between Congress and the Supreme Court as articulated by Chief Justice Roberts in his responses, cited in this letter, to questions posed at his hearing by Senator DeWine and myself?

I do believe there will be an opportunity for very important issues to be presented to the nominee. Based on what I have seen of her, in reviewing her record, and the meeting I had with her--I have noted her excellent resume--I am looking forward to giving her an opportunity to answer the many questions that have been raised in the press, where she will have more of an opportunity than to have a sound bite but to give commentary on her record in support of her nomination.

I ask unanimous consent to have printed in the Record the material to which I referred.

I thank the Chair and yield the floor.

Exhibit 1

U.S. Senate,

Washington, DC, June 15, 2009.

Hon. Sonia Sotomayor,

The Department of Justice,

Washington, DC.

Dear Judge Sotomayor: When we concluded our meeting which

lasted more than an Hour, I commented that I would be writing

to you on other subjects which I intended to cover at your

hearing, and I appreciated your response that you would

welcome such advance notice.

In the confirmation hearing for Chief Justice Roberts,

there was considerable discussion about the adequacy of

congressional fact finding to support legislation. This issue

is again before the Supreme Court on the re-authorization of

the Voting Rights Act where the legislation is challenged on

the ground that there is an insufficient factual record. At

our hearing, I would uphold like your views on what legal

standards you would apply in evaluating the adequacy of a

Congressional record. In the 1968 case Maryland v. Wirtz,

Justice Harlan's rationale would uphold an act of Congress

where the legislature had a rational basis for reaching a

regulatory scheme. In later cases, the Court has moved to a

``congruence and proportionality standard.''.

In advance of the hearing for Chief Justice Roberts by

letter dated August 8, 2005. I wrote him in part:

``members of Congress are irate about the Court's

denigrating and, really, disrespectful statements about

Congress's competence. In U.S. v. Morrison, Chief Justice

Rehnquist, speaking for five members of the Court, rejected

Congressional findings because of ``our method of

reasoning''. As the dissent noted, the Court's judgment is

``dependent upon a uniquely judicial competence'' which

implicitly criticizes a lesser quality of Congressional

competence.

In Morrison, there was an extensive record on evidence

establishing the factual basis for enactment of the Violence

Against Women legislation. In dissent. Justice Souter noted .

. . the mountain of data assembled by Congress here showing

the effects of violence against women on interstate

commerce,'' and added:

``The record includes reports on gender bias from task

forces in 21 states and we have the benefit of specific

factual finding in eight separate reports issued by Congress

and its committees over the long course leading to its

enactment.''

In a subsequent letter to Chief Justice Roberts dated

August 23, 2005, I wrote concerning Alabama v. Garrett where

Title I of the Americans with Disabilities Act was based on

task force field hearings in every state attended by more

than 30,000 people including thousands who had experienced

discrimination with roughly 300 examples of discrimination by

state governments.

Notwithstanding those findings, the Garrett Court concluded

in a five to four decision:

``The legislative record of the Americans with Disabilities

Act, however, simply fails to show that Congress did in fact

identify a pattern of irrational state discrimination in

employment against the disabled.''

In another five to four decision, the Court in Lane v.

Tennessee concluded Title II of the Americans with

Disabilities Act met the ``congruence and proportionality

standard''. There, Justice Scalia dissented attacking the

``congruence and proportionality standard'' calling it a

``flabby test'' and ``invitation to judicial arbitrariness

and policy driven decision making'':

``Worse still, it casts this Court in the role of

Congress's taskmaster. Under it, the courts (and ultimately

this Court) must regularly check Congress's homework to make

sure that it has identified sufficient constitutional

violations to make its remedy constitutional and

proportional. As a general matter, we are ill-advised to

adopt or adhere to constitutional rules that bring us into

conflict with a coequal branch of Government.''

During the confirmation hearing of Chief Justice Roberts,

he testified extensively in favor of the Court's deferring to

Congress on fact finding. In response to questions from

Senator DeWine, he testified:

``. . . The reason that congressional fact finding and

determination is important in these cases is because the

courts recognize that they can't do that, Courts can't have,

as you said, whatever it was, the 13 separate hearings before

passing particular legislation. Courts--the Supreme Court

can't sit and hear witness after witness after witness in a

particular area and develop that kind of a record. Courts

can't make the policy judgments about what type of

legislation is necessary in light of the findings that are

made''. . . `We simply don't have the institutional expertise

or the resources or the authority to engage in that type of a

process. So that is sort of the basis for the deference to

the fact finding that is made. It's institutional competence.

The courts don't have it. Congress does. It's constitutional

authority. It's not our job. It is your job. So the defense

to congressional findings in this area has a solid basis.''

In response to my questioning, Chief Justice Roberts said:

``And I appreciate very much the differences in

institutional competence between the judiciary and the

Congress when it comes to basic questions of fact finding

development of a record, and also the authority to make the

policy decisions about how to act on the basic of a

particular record. It's not just disagreement over a record.

It's a question of whose job it is to make a determination

based on the record' . . . as a judge that you may be

beginning to transgress into the area of making a law is when

you are in a position of re-evaluating legislative findings,

because that doesn't look like a judicial function.''

The Supreme Court heard oral argument in Northwest Austin

Municipal Utility District v. Holder on April 29, 2009

involving the sufficiency of the Congressional record on

reauthorizing the Voting Rights Act. While too much cannot he

read into comments by justices at oral argument, Chief

Justice Roberts' statements suggested a very different

attitude on deference to Congressional fact finding than he

expressed at his confirmation hearing. Referring to the

argument that ``. . . action under Section 5 has to be

congruent and proportional to what it's trying to remedy,''

Justice Roberts said that:

``. . . one-twentieth of l percent of the submissions are

not precleared. That, to me, suggests that they are sweeping

far more broadly than they need to, to address the

intentional discrimination under the Fifteenth Amendment.''

Chief Justice Roberts went to say:

``Well, that's like the old--you know, it's the elephant

whistle. You know, I have this whistle to keep away the

elephants. You know, well, that's silly. well, there are no

elephants, so it must work. I mean if you have 99.98 percent

of these being precleared, why isn't that reaching far too

broadly.''

As a factual basis for the 2007 Voting rights Act, Congress

heard from dozens of witnesses over ten months in 21

different hearings. Applying the approach from Chief Justice

Roberts' confirmation hearing, that would appear to satisfy

the ``congruence and proportionality standard''.

My questions are:

1. Would you apply the Justice Harlan ``rational basis''

standard or the ``congruence and proportionality standard''?

2. What are your views on Justice Scalia's characterization

that the ``congruence and proportionality standard'' is a

``flabby test'' and ``an invitation to judicial arbitrariness

and policy driven decision making''?

3. Do you agree with Chief Justice Rehnquist's conclusion

that the Violence Against Women legislation was

unconstitutional because of Congress's ``method of

reasoning''?

4. Do you agree with the division of constitutional

authority between Congress and the Supreme Court articulated

by Chief Justice Roberts in his responses cited in this

letter to questions posed at his hearing by Senator DeWine

and me?

Sincerely,

Arlen Specter.

Mr. President, I want to follow up on what my colleague from North Dakota said regarding the financial regulatory issue. This is a huge problem.

In my office, I have a debt clock running. I put it there purposely so people can see what it is, and it is running at $11.5 trillion. At this point in time, it has a dizzying amount of numbers that are running on it. Usually my constituents come in and say: Good, I wanted to get out of the waiting room. That clock is driving me crazy, the numbers are going so fast. It is so huge, the numbers and the rate we are going.

What troubles me as well, as a member of the baby boomer generation, is that I look at this and I feel as though we are following on the heels of the ``greatest generation''--the World War II generation, with all the sacrifices and the things they did to make this country what it is. My predecessor in the seat I am in, Bob Dole, I think epitomizes the ``greatest generation''--the World War II generation--that sacrificed so much so the rest of us could live and do so well, and I am deeply appreciative of that. But I look at my generation, sometimes called the ``me generation.'' I don't know that that is particularly an applauding sort of title, saying it is more focused that way, but I think we need to, ourselves, step up a lot more for the country, for the people in this Nation, and deal with the problems we have.

One of the biggest ones, as far as the legacy we leave, is the mortgage that is growing on this country, this $11.5 trillion I started off talking about. When I first started in Congress in 1994, it was roughly 50 percent mandatory spending and 50 percent discretionary spending. This year, we are looking at 70 percent mandatory spending-- between 60 and 70 percent mandatory spending, depending on what ends up in the final package--and 30 to 40 percent discretionary spending. And of that discretionary, half of that is military. So we have this huge growth in entitlement programs and spending programs that are on autopilot and that are setting that clock to going faster and faster, at $11.5 trillion and up.

We are looking at a $1.8 trillion deficit this year alone. This is unsustainable and it is irresponsible. And it is irresponsible of the baby boomer generation, which has inherited and been given so much, not to step up and to start to deal with this. I feel very strongly about this, that it is something we need to start dealing with as a generation. I am not talking about from a party perspective, or even from a legislative perspective, but I am talking about it from a generational perspective. This is the sort of thing we need to start dealing with for our children's future and our grandchildren's future, so that when future generations come up and they look back and see the ``greatest generation'' of World War II, they don't then look at the baby boomer generation and say: Well, that is the generation that used a lot of it up. Rather, they say: No, that was the generation that used a lot, but then got it together and started to address the problems of fiscal irresponsibility--the fiscal irresponsibility that is taking place in this country and in this government today.

We have program spending that is out of control. Everybody is against waste, fraud, and abuse, but I have not found that line in the budget yet which allows us to X it out. What I am talking about here--and I will introduce at the end of my speech--is a bill that actually does start to get at that, and it does it via a mechanism that is a proven mechanism we have used before in this body which actually reduced government spending. It is called the Commission on Accountability and Review of Federal Agencies, CARFA. We have 20 original cosponsors, and it is a very simple concept that we have used before.

It is based on the BRAC Commission--the Base Realignment and Closure Commission--only it applies to the rest of government, not just military bases. You create a commission, and the commission says 300 bases should be closed. They send that to the administration to check off on that, and then it sends it to the Congress, requiring an up-or- down vote within a limited timeframe, no amendments and a set amount of time to debate. Yes or no, deal or no deal: Are we going to keep the bases or close the bases, which way is it?

That is the only mechanism I have ever seen us come up with in this body to actually cut Federal spending and to do the things we talk about all the time but in the trading nature of the legislative body never gets done. This one has actually done it, the BRAC Commission, on military bases, which is a substantial but certainly not all of our budget. So I am saying, let's take that mechanism and apply it to the rest of the budget, mandatory and discretionary spending, both pockets of this.

I am fully open to suggestions and ideas for amendment on this bill, but I would break the Federal Government into four different categories, to where every fourth year there is a CARFA commission which reviews one-fourth of the budget, and then that recommendation is sent to the Congress to either eliminate these pieces or to keep them.

I have a scorecard up here. It turns out that the OMB does a regular scoring of the effectiveness of Federal Government programs and then they assign a percentage out of 100 to each. I put the grade equivalent on it, and you can see the programs that were reviewed here: State Department has the highest score that I have up here, of C+ for effectiveness, at which the OMB scored it. The Education Department-- and I don't know what that says here--has scored below 50 percent and gets an F--the Education Department--on its scorecard. You can look through and these are the programs that are reviewed: 51 for the State Department; 93 for the Education Department.

So I am saying you would have this CARFA commission go through to do a similar type of review for effectiveness. Those programs that would fail would be put in an overall bill which would say: Okay, Congress, keep this entire package or eliminate this entire package.

If you eliminate them, the same year you can come back and reauthorize that bill and reappropriate the program if you believe it is effective. But this gives you an automatic culling process. It is a culling process that takes place on programs that have been put in the budget year after year and have somehow been sustained or have gotten supporters around them. Most programs have a number of different supporters around them, so they keep going on and on. Even though they are not particularly effective, the supporters like them, so they keep getting in the budget, even when we do an objective review of them and find out these are failed programs by our own standards.

This is something we need to do. It is something I would hope that the baby boomer generation could stand up and

start to say it is time for us to take fiscal responsibility for the situation that is being created and that is unsustainable in this country. We are already starting to see interest rates move up. That is likely to continue. We are seeing people beside themselves when looking at the level of Federal spending, and the waste in it, and saying: What is going on? Can't you guys get ahold of it?

Here is a way to actually get ahold of it and deal with it and be able to say to generations in future years that, yes, we stood up and took ownership and we dealt with the problem.

There was an article in the Wall Street Journal a week ago where a gentleman was saying that the unfunded obligations of the Federal Government today--these are things such as the entitlement programs, whether it is Medicare, Social Security, veterans' benefits, and pension guarantees that we have--are getting close to $100 trillion. Those are unfunded obligations existing on the part of the Federal Government today. That number seems high to me, but I know if you look at Medicare and a couple of other ones, we are looking at nearly $60 trillion in that category. To give some perspective, the total economy is $14 trillion, or thereabouts.

This is irresponsible to the highest degree, and it is irresponsible to future generations, and it is time to put a mechanism in place for us to deal with it. I urge my colleagues to join us in cosponsoring this bill. I am submitting it now to the desk, with 20 cosponsors. This is an idea whose time has come.

Mr. President, there is a stark choice looming before Congress. It is the choice between enacting a comprehensive reform bill that truly improves our health care system for the American people or enacting a mediocre reform bill that largely maintains the status quo--which is an ineffective and costly health care system run by the insurance industry. I know that most of my colleagues want the former--a 21st Century health care system that provides meaningful and affordable coverage for all, improves health outcomes, and brings accountability and responsibility back into health care.

I am absolutely convinced that the inclusion of a strong public health insurance plan option is the only way to guarantee that all consumers have affordable, adequate, and accountable options available in the insurance marketplace. It is for this reason that I rise today with my good friend, Senator Sherrod Brown of Ohio, to introduce the Consumers Health Care Act of 2009--legislation to provide a strong public plan option in the National Health Insurance Exchange.

One of the most contentious, yet critical, pieces of the national health care reform effort is whether or not Americans should have the option to buy their health insurance from a publicly run organization. In other words, in addition to choosing among numerous health plans run by private insurers, should consumers also have the option of choosing an affordable, stable, and transparent public plan when they are deciding what is best for them and their families? I believe consumers should have the option of choosing a public plan.

Opponents of giving Americans a public option regularly use alarmist rhetoric such as ``big government'' and ``socialized medicine.'' And, somehow, protecting the rights of private health insurers to make profits has become more important to some than offering Americans the choice of a plan that seeks to insure everyone, no matter how sick, that is less expensive, and that is responsible to the American people--not to private profit-seeking stockholders.

I'm not sure when the word ``public'' became such a bad word in the eyes of some of my colleagues. Public means acting in the interest of the general public--which is exactly what we should aspire to in comprehensive health reform.

The private health insurance market has significantly contributed to the broken nature of our health care system, with a long history of cutting coverage off or charging too much for too little. A public plan option--repeat, option--is an effective way to bring competition to the insurance market, hold down costs, and encourage innovation and quality improvements. To deny this option is not only shortsighted, but downright harmful.

Everyone knows the sobering statistics that have highlighted the need for comprehensive health reform. More than 45 million Americans are uninsured and another 25 million are underinsured. Since 1909, the average health insurance premium for a family has increased by 119 percent, from $5,791 in 1999 to $12,680 in 2008. Yet, Americans have seen their benefits decrease and have faced substantially larger out- of-pocket expenses. An estimated 62 percent of all personal bankruptcies involve medical expenses and 78 percent of the individuals who cited medical expenses in their bankruptcy claims had health insurance. Health care costs already consume 17 percent of the United State's gross domestic product, which everyone can agree is unsustainable.

However, representing the great state of West Virginia has shown me that the need for health reform is far more essential and personal than frightening statistics could ever show. I have listened at roundtable discussions where West Virginians described how the current health care system has failed them. One woman was really struggling to care for both herself and her son. She was uninsured because her son, who had a serious brain disorder, needed 24 hour a day, seven day a week, assistance. Another family wrote to me because their son, who was born with serious congenital heart defects, had reached the $1 million limit on his mother's insurance policy within the first nine months of his life. They were unsure of how to obtain lifesaving treatment for their son, now that the insurance company would no longer pay for his care. I have heard from countless other West Virginians who have been unable to find affordable health care, or have figured out too late that the health insurance they had was inadequate for what they needed.

As Congress works to achieve the transformative reform necessary to create a sustainable health care system, a vital component of this reform is the inclusion of a strong public plan option like the Consumer Choice Health Plan included in the Consumers Health Care Act. A public plan will help establish a new insurance framework, one that compels insurers to provide Americans with the best value for their health care at the best price, rather than the current insurance framework, which is focused on avoiding risk and increasing profits. The Consumer Choice Health Plan will be available for all individuals and small businesses, regardless of health status, and will not be concerned with paying a CEO salary or broker commissions.

The Consumers Health Care Act will increase transparency and accountability throughout the health insurance market, as well as give individuals guaranteed access to health care coverage should they be denied or priced out of affordable private insurance coverage. Currently, insurers are allowed to operate in a black box, with little oversight of their coverage and payment decisions. Individuals with pre-existing conditions are routinely denied access to affordable care. For years, United Health was able to underpay providers and overcharge patients for out-of-network services. The Consumers Health Care Act will address this and other issues by bringing greater transparency to the private health insurance market.

Consumer Choice Health Plans will serve as a vital safety-net of coverage for individuals and families that have been unable to obtain affordable and comprehensive health care coverage through the private market. A private insurance company's desire to earn greater profits will always trump over the need to make health care coverage affordable and accessible to all Americans, and greater insurance regulation is not enough. The Consumers Health Care Act is necessary in order to achieve the sustainable change that the health care system in this country needs.

I trust the good sense of the American public to choose the health coverage they want, and they deserve the choice of a public plan with lower costs and the guarantee of always being there when they need it. The American people trust us to get this right and deliver the best coverage options that will keep their families healthy and safe. The days of packaging half-baked legislation into a bill and calling it transformative reform when it is not have to end now, or the shame is on all of us:

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to discuss bipartisan legislation that I am cosponsoring with my colleague Senator Corker concerning the Federal Government's recently acquired ownership stake in a number of private companies.

I think we all know the taxpayers have been on a roller coaster ride for the past 9 months, and from their perspective, each twist and turn has left us more deeply invested in troubled markets and oftentimes troubled companies. Americans are concerned about getting their money back and want to keep politics out of how we manage these investments we have had to make over the last few months.

Last week, Senator Corker and I introduced S. 1280, the TARP Recipient Ownership Trust Act. What will this bill do? Three very simple things. First, it will remove politics from our management of taxpayer investments in private companies. Second, it will ensure these investments are managed in order to maximize taxpayer returns. Third, it will allow us to plan for removing the government from the private sector by setting a date certain for selling these investments.

To achieve these goals, Senator Corker and I are proposing that if the government owns more than 20 percent of a private company we place that ownership stake in an independent trust. This trust would be run with a fiduciary duty for taxpayers by three independent directors appointed by the President. These directors would agree to perform this work for free as a service to the country and in doing so would give the American taxpayers what they deserve: the upside of the massive investments they have provided over the past 9 months. The trust wouldn't be an open-ended ownership in these companies; the trust would have to sell all of these assets by the end of 2011, though they could ask for a brief extension if it were, again, in the interest of the taxpayers' return. In this way, taxpayers can know we won't own stock in these companies for the next 20 years. In practice, this means that taxpayer ownership of AIG, Citigroup, and General Motors would be managed in order to maximize the return on these taxpayer investments.

We have all seen how political and contentious the TARP program is becoming. I know back when we voted on this matter earlier this year how controversial it was. I still think it was unfortunate that we got into this circumstance but fortunately the right thing to do. While there are a lot of challenges about how we got into this program, if we did look around--actually, Steven Pearlstein of the Washington Post pointed out in an article recently that if 9 months ago, if 6 months ago, or even 3 months ago, back in the middle of March when the stock market was at its all-time low in terms of reacting to this crisis, any economist would have said by the end of June, would you be willing to look at a circumstance where the market was up 25, 30 percent--although it was a little bit down today--if many of the banks we had invested TARP funds in were actually trying to repay those TARP funds, and if we had seen the housing market, at least in many communities, start to stabilize, would we view that as a good outcome. Well, that is basically where we are. While we have enormous problems, we are seeing some progress. But one needs only to look at the number of TARP-related amendments that have been filed in the Senate in these past months. As a matter of fact, the leader was speaking today about the number of TARP amendments that could potentially be on the travel bill that we will have before us to know that this has become a lightning rod.

Some of the reasons for this concern are truly relevant and they are because the American people don't know when and how the TARP program is supposed to end. The American people, unfortunately, who invested in individual companies--some of the companies that now we have invested in--don't know how much we as the public will get back, or whether we, as the public investment, will politically interfere with the management of these companies. That is, again, why we need to implement this legislation Senator Corker and I have laid out that will put these ownership shares in this independent fiduciary trust.

I don't support cutting off TARP right now or limiting the tools it currently provides the administration, including the limited reuse of money that is repaid to the government. TARP already has a sunset date after which more funds cannot be spent, and since markets are not back to normal, even though there is improvement, we shouldn't prevent the use of the tools we currently have. But we do need to set parameters for managing our investments and winding them down in order to take the politics out of this program.

American taxpayers deserve to have their investments managed in order to maximize their returns. That is what the trust will do, and I hope we will consider using this model for other investments as well.

This trust will also help us take some of the politics out of the TARP program, and that is why I am proud of this legislation as bipartisan and led by my friend from Tennessee, Senator Corker. I hope my colleagues will join in supporting this bipartisan legislation, S. 1280, the TARP Recipient Ownership Trust Act. While this measure won't resolve all of our concerns surrounding TARP, I hope it can serve as a model to maximize the taxpayer returns on their investment.

Let me also take one additional moment to speak about another investment-related matter. Under the leadership of Senator Jack Reed from Rhode Island, when the initial investments and the initial TARP plan were put together, Senator Reed, I think appropriately, said if we invest in banks in addition to getting a traditional return, we, the public, who are taking

these risks ought to see some upside potential for taking the risks in terms of warrants. Luckily, the Congress went along with that and we did receive warrants from a number of the banks we invested in. I personally am very happy to see that a number of these banks are starting to repay the investments the public made. However, there remains the question: What are we going to do with the warrants? Senator Reed and I have asked Secretary Geithner a number of times, and we hope he would also consider placing these warrants into some type of independent trust as well so that, again, we, the taxpayers, can receive the upside of these investments.

We took the risks with these banks during these troubled times. I am happy to see these banks return these funds. However, for the banks to buy back or sell back these warrants at what I believe today is still a discounted price would not allow us, the taxpayers, to maximize our investments. So, again, I hope Secretary Geithner responds to the requests that Senator Reed and I have made in making sure that these warrants are appropriately put into the same type of independent fiduciary trusts that I am proposing for the private investments we have made under TARP.

I yield the floor.

Mr. President, I rise today to join with my colleague, Senator Boxer, to introduce the One Level of Safety Act. We have all become familiar with the events surrounding the terrible tragedy near Buffalo, New York--an accident that the National Transportation Safety Board categorized as the worst such incident since late 2001--that cost fifty lives, and shattered countless others. In the wake of the crash of Flight 3407, we have identified failures on a multiplicity of levels. For an agency that has consistently cited its commitment to ``one level of safety'' for all carriers as far back as 1995, this accident showcases that when it comes to regional carriers, the Federal Aviation Administration has done a poor job of enforcing that philosophy.

During its preliminary investigation of Flight 3407, the National Transportation Safety Board pointed out a number of issues specific to this accident that could be directly attributable to fatigue, with many pilots traveling all night over great distances just to reach their base of operations. For example, almost a quarter of Colgan Air pilots who operate out of Newark, New Jersey travel over one thousand miles simply to reach their designated duty station. At the same time, as we've witnessed with a number of regional carriers, pilots are often paid meager salaries--the first officer in Flight 3407 made barely twenty thousand dollars annually.

With such low pay, it is difficult for these pilots to provide for themselves and their families, much less afford a restful place to spend an evening; at a hotel, or an apartment in close proximity to their base of operations--as a result, they doze in airport lounges-- technically against most airline regulations--and subsequently are getting into the cockpit fatigued, with insufficient rest and, potentially, reduced situational awareness. With little oversight concerning the amount of rest these pilots receive, we face the terrible potential for another incident in the near future.

I was greatly encouraged by the efforts that the new Federal Aviation Administrator Babbitt undertook on Monday; his announcement to initiate rulemakings on fatigue management, the relationship between major and regional carriers, and training discrepancies, were all positive, proactive steps to help remedy a situation that for too long has gone ignored, and I commend his willingness to take the reins so early in his tenure. Unfortunately, as a recent series of hearings at the Senate Commerce Committee has shown us, rulemakings are typically long, drawn- out processes that in some cases are never completed. Simply put, this is insufficient.

In fact, a National Transportation Safety Board recommendation concerning pilot fatigue--clearly an underlying cause of the Flight 3407 crash--has been outstanding for nearly 2 decades! This recommendation was no small suggestion; it has been on the NTSB's highest profile publication, their Most Wanted List, for nineteen years! Given that four of the last six fatal accidents involving commercial carriers included fatigue as a contributing cause, I am stunned that this issue has not been addressed. But only one effort to tackle this issue has been made in the past 2 decades, and after encountering some resistance, that proposed rulemaking was shelved in 1995, and no second attempt was forthcoming. So, while the Federal Aviation Administration's comments yesterday were laudable, there are no guarantees when it comes to rulemakings. I believe it is incumbent on Congress to act and act now.

That is why Senator Boxer and I joined together to develop legislation that we believe will close many of the loopholes that jeopardize safety, those same loopholes spotlighted by the findings of the National Transportation Safety Board, the Department of Transportation Inspector General's office, and the victims' families of Flight 3407. Requiring the Federal Aviation Administration to complete a number of long-overdue rulemakings on issues as wide-ranging as fatigue management, minimum training standards for all carriers, and remedial training for deficient pilots is the first step. Ensuring the Federal Aviation Administration will perform adequate, unannounced inspections to guarantee these new rules are enforced, and requiring more rigorous inspections of flight schools like the Gulfstream Academy--whose parent company was recently assessed a civil penalty of $1.3 million for safety violations, and where many regional pilots receive their training--will go a long way towards closing the loopholes that still exist in our aviation safety network. In my view, these are all positive steps that will prevent another incident like the crash of Flight 3407.

Before I close, I would like to say a word to the families of the crash victims. I deeply empathize with your loss, and in large part, your efforts have been essential in the drafting of this legislation. Thank you for all your perseverance and invaluable contributions during what I know must be difficult times for all of you.