See Something, Say Something Act of 2009

Mr. President, I seek recognition today on behalf of myself, Senator Grassley and Senator Tester, to offer the Presidential Signing Statements Act of 2009. The purpose of this bill is to regulate the use of Presidential Signing Statements in the interpretation of Acts of Congress. This bill is similar in substance to two prior versions of this legislation: the Presidential Signing Statements Act of 2007, which I introduced on June 29, 2007; and the Presidential Signing Statements Act of 2006, which I introduced on July 26, 2006.

As I have stated before, I believe that this legislation is necessary to protect our constitutional system of checks and balances. This bill achieves that goal in the following ways.

First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing federal and state courts not to rely on, or defer to, presidential signing statements as a source of authority when determining the meaning of any Act of Congress.

Second, it grants Congress the power to participate in any case where the construction or constitutionality of any Act of Congress is in question and a presidential signing statement for that Act was issued by allowing Congress to file an amicus brief and present oral argument in such a case; instructing that, if Congress passes a joint resolution declaring its view of the correct interpretation of the statute, the Court must admit that resolution into the case record; and providing for expedited review in such a case.

Since the days of President James Monroe, Presidents have issued statements when signing bills. It is widely agreed that there are legitimate uses for signing statements. For example, Presidents may use signing statements to instruct executive branch officials how to administer a law or to explain to the public the likely effect of a law. There may be a host of other legitimate uses.

It is clear, however, that the President cannot use a signing statement to rewrite the words of a statute, nor can he use a signing statement to selectively nullify those provisions he does not like. This much is clear from our Constitution. The Constitution grants the President a specific, defined role in enacting legislation. Article I, section 1 of the Constitution vests ``all legislative powers . . . in a Congress.'' Article I, section 7 of the Constitution provides that, when a bill is presented to the President, he may either sign it or veto it with his objections. He may also choose to do nothing, thus rendering a so-called pocket veto. But the President cannot veto part of a bill--he cannot veto certain provisions he does not like.

The Framers had good reason for constructing the legislative process as they did. According to The Records of the Constitutional Convention, the veto power was designed to protect citizens from a particular Congress that might enact oppressive legislation. However, the Framers did not want the veto power to be unchecked, and so, in Article I, section 7, they balanced it by allowing Congress to override a veto by 2/3 vote.

As I stated when I initially introduced this legislation in 2006, this is a finely structured constitutional procedure that goes straight to the heart of our system of checks and balances. Any action by the President that circumvents this procedure is an unconstitutional attempt to usurp legislative authority. If the President is permitted to re-write the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by the Framers. The Supreme Court has affirmed that the Constitutional process for enacting legislation must be safeguarded. As the Court explained in INS v. Chahda, ``It emerges clearly that the prescription for legislative action in Article I, Section 1 and 7 represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.'' 462 U.S. 919, 951, 1982.

It is well within Congress's power to enact rules of statutory interpretation intended to preserve this constitutional structure. This power flows from Article I, section 8, clause 18 of the Constitution, which gives Congress the power ``To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the U.S., or in any department or officer thereof.'' Rules of statutory interpretation are ``necessary and proper'' to execute the legislative power.

Several scholars have agreed: Jefferson B. Fordham, a former Dean of the University of Pennsylvania Law School said, ``[I]t is within the legislative power to lay down rules of interpretation for the future;'' Mark Tushnet, a Professor at Harvard Law School explained, ``In light of the obvious congressional power to prescribe a statute's terms (and so its meaning), congressional power to prescribe interpretive methods seems to me to follow;'' Michael Stokes Paulsen, an Associate Dean of the University of Minnesota Law School noted, ``Congress is the master of its own statutes and can prescribe rules of interpretation governing its own statutes as surely as it may alter or amend the statutes directly.'' Finally, J. Sutherland, the author of the leading multi- volume treatise for the rules of statutory construction has said, ``There should be no question that an interpretive clause operating prospectively is within legislative power.''

Indeed, recent experience shows why such legislation is ``necessary.'' The use of signing statements has risen dramatically in recent years. President Clinton issued 105 signing statements; President Bush issued 161. What is more alarming than the sheer numbers, is that President Bush's signing statements often raised constitutional concerns and other objections to several provisions of a law. The President used those statements in a way that threatened to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced. Even where Congress managed to negotiate checks on executive power, the President used signing statements to override the legislative language and defy congressional intent.

Two prominent examples make the point. In 2006, I spearheaded the delicate negotiations on the PATRIOT Act Reauthorization, which included months of painstaking efforts to balance national security and civil liberties, disrupted by the dramatic disclosure of the Terrorist Surveillance Program. The final version of the bill featured a carefully crafted compromise necessary to secure the act's passage. Among other things, it included several oversight provisions designed to ensure that the FBI did not abuse special terrorism-related powers permitting it to make secret demands for business records. The President dutifully signed the measure into law, only to then enter a signing statement insisting he could withhold any information from Congress required by the oversight provisions if he decided that disclosure would ``impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties.''

The second example arose in 2005. Congress overwhelmingly passed Senator John McCain's amendment to ban all U.S. personnel from inflicting ``cruel, inhuman or degrading'' treatment on any prisoner held by the United States. There was no ambiguity in Congress's intent; in fact, the Senate approved it 90 to 9. However, after signing the bill into law, the President quietly issued a signing statement asserting that his Administration would construe it ``in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.''

Many understood this signing statement to undermine the legislation. In a January 4, 2006 article titled, ``Bush could bypass new torture ban: Waiver right is reserved,'' the Boston Globe cited an anonymous ``senior administration official'' as saying, ``the president intended to reserve the right to use harsher methods in special situations involving national security.''

As outrageous as these signing statements are, intruding on the Constitution's delegation of ``all legislative powers'' to the Congress, it is even more outrageous that Congress has done nothing to protect its constitutional powers. In 2006 and 2007, the legislation I introduced giving Congress standing to challenge the constitutionality of these signing statements failed to muster the veto-proof majority it would have surely required.

With a new administration, I believe the time has come to pass this important legislation. This bill does not seek to limit the President's power, and it does not seek to expand Congress's power. Rather, this bill simply seeks to safeguard our Constitution. In this Congress, it has a better chance of mustering a majority vote and being signed into law by the new President.

That said, two days after criticizing President Bush's signing statements, President Obama issued one of his own regarding the Omnibus Appropriations Act of 2009. Citing among others his ``commander in chief'' and ``foreign affairs'' powers, he refused to be bound by at least eleven specific provisions of the bill including one long- standing rider to appropriations bills designed to aid congressional oversight. As I told The Wall Street Journal, ``We are having a repeat of what Democrats bitterly complained about under President Bush.'' I hope this will be the exception rather than the rule.

In the meantime, this bill seeks to implement measures that will safeguard the constitutional structure of enacting legislation. In preserving this structure, this bill reinforces the system of checks and balances and separation of powers set out in our Constitution.

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

Mr. President, I have sought recognition to reintroduce legislation that would substitute the United States in the place of electronic communications service providers who were sued for violating the Foreign Intelligence Surveillance Act, FISA, and other statutory and constitutional provisions.

FISA reform legislation passed the Senate in February and July of 2008, both times by a vote of 68 to 29, before being signed into law by President Bush on July 10, 2008. This legislation made many necessary changes to FISA to enhance our intelligence collection capabilities, but it also included a controversial provision giving retroactive immunity to telecommunications companies for their alleged cooperation with the warrantless surveillance program authorized by the President after September 11, 2001. The legislation stripped the Federal courts of jurisdiction to decide more than 40 consolidated cases involving claims of violations of FISA and related statutes, even though most Members of Congress had not been briefed on the program, and despite the fact that the judge handling the cases, Chief Judge Vaughn Walker of the Northern District of California, had questioned the legality of the program in a related opinion issued just days before the final Senate debate.

During the February and July FISA debates, I sought to keep the courts open as a way to check executive branch excesses. Through both a stand-alone bill, S. 2402, considered by the Senate Judiciary Committee and an amendment, SA 3927 to S. 2248, offered during the Senate's February debate on the FISA reform bill, I proposed to substitute the U.S. Government for the telephone companies facing lawsuits for their alleged cooperation with the Terrorist Surveillance Program, TSP. Just as in 2008, I propose legislation that would place the Government in the shoes of the telephone companies, with the same defenses no more and no less. Thus, under the bill, plaintiffs get their day in court and may hold the Government accountable for unlawful activity, if any, related to the surveillance program. At the same time, the carriers themselves avoid liability stemming from their efforts to be good citizens.

I fought hard in 2008 to keep the courts open on the question of the TSP, and urged my colleagues to improve the FISA bill. I continue that fight today with a new Administration in office. During the prior floor debate I said: ``Although I am prepared to stomach this bill, if I must, I am not yet ready to concede that the debate is over. Contrary to the conventional wisdom, I don't believe it is too late to make this bill better.''

As I observed on the floor last year, it is necessary for Congress to support intelligence collection efforts because of the continuing terrorist threat. No one wants to be blamed for another 9-11. Indeed, as I acknowledged during the debate, my own briefings on the telephone companies' cooperation with the Government convinced me of the program's value. Nevertheless, I tried to impress upon my colleagues the importance and historical context of our actions. I said:

We are dealing here with a matter that is of historic

importance. I believe that years from now, historians will

look back on this period from 9/11 to the present as the

greatest expansion of Executive authority in history--

unchecked expansion of authority. The President disregards

the National Security Act of 1947 mandating notice to the

Intelligence Committee; he doesn't do it. The President takes

legislation that is presented by Congress and he signs it,

and then he issues a signing statement disagreeing with key

provisions. There is nothing Congress can do about it.

The Supreme Court of the United States has gone absent

without leave on the issue, in my legal opinion. When the

Detroit Federal judge found the terrorist surveillance

program unconstitutional, it was [reversed] by the Sixth

Circuit on a 2-to-1 opinion on grounds of lack of standing.

Then the Supreme Court refused to review the case. But the

very formidable dissenting opinion laid out all of the

grounds where there was ample basis to grant standing. Now we

have Chief Judge Walker declaring the [surveillance illegal].

The Congress ought to let the courts fulfill their

constitutional function.

It is not too late to provide for judicial review of controversial post-9/11 intelligence surveillance activities. The cases before Judge Vaughn Walker are still pending and, even if he were to dismiss them under the statutory defenses dubbed retroactive immunity, Congress can and should permit the cases to be refiled against the Government, standing in the shoes of the carriers.

This legislation substitutes the U.S. in place of any electronic communication service provider who provided communications in connection with an intelligence activity that was: authorized by the President between September 11, 2001, and January 17, 2007; and designed to detect or prevent a terrorist attack against the U.S. In order for substitution to apply, the electronic communications service provider must have received a written request from the Attorney General or the head of an element of the intelligence community indicating that the activity was authorized by the President and determined to be lawful. If the provider assisted the Government beyond what was requested in writing, this legislation will provide no relief to the service provider.

The legislation also establishes a limited waiver of sovereign immunity that only applies to ``covered civil actions'' essentially, the 40 cases currently pending before the U.S. District Court in the Northern District of California. This is to prevent the Government from asserting immunity in the event it is substituted for the current defendants.

We can still pass legislation substituting the Government for the various telecom defendants and have a judicial assessment of the constitutionality and legality of the controversial surveillance. Such a judicial assessment is necessary to resolve the clash between the Executive and Legislative branches over the legality and constitutionality of the surveillance program.

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

Mr. President, I have sought recognition to introduce legislation that will mandate Supreme Court review of challenges to the warrantless wiretapping program authorized by President Bush after 9/ 11, commonly known as the Terrorist Surveillance Program or TSP.

While the Supreme Court generally exercises discretion as to whether it will review a case or grant ``certiorari,'' there are precedents for Congress to direct Supreme Court review on constitutional issues-- including the statutes forbidding flag burning and requiring Congress to abide by Federal employment laws--and the gravity of this issue merits Congressional action.

In August 2006, Judge Anna Diggs Taylor of the U.S. District Court for

the Eastern District of Michigan issued a 43-page opinion finding the TSP unconstitutional. At the time, many applauded and many others criticized her decision, but we have yet to see appellate review on the merits. Instead, in July 2007, the U.S. Court of Appeals for the 6th Circuit overturned the district court's decision on other grounds. By a 2-1 vote, in ACLU v. NSA, it declined to rule on the legality of the program, finding that the plaintiffs lacked standing to bring the suit. The Supreme Court then declined to hear the case, even though the doctrine of standing has enough flexibility, as demonstrated by the dissent in the 6th Circuit, to have enabled it to take up this fundamental clash between Congress and the President.

With the Supreme Court abstaining, another lone district judge took a stand. In In re National Security Agency Telecommunications Records Litigation, Chief Judge Vaughn Walker in the Northern District of California considered a case brought by an Islamic charity that claims to have been a subject of the surveillance program. In a 56-page opinion he held that Congress's enactment of the Foreign Intelligence Surveillance Act of 1978, FISA, had constrained the President's inherent authority--if any--to conduct warrantless wiretapping: ``Congress appears clearly to have intended to--and did--establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities.'' Nevertheless, this finding is preliminary.

Whatever Chief Judge Walker ultimately decides, my bill will permit any party who is disaffected by a subsequent decision in the Ninth Circuit to have the case heard by the Supreme Court by eliminating discretionary review. Under my bill, the Supreme Court would also have to review appeals concerning the constitutionality or legality of: the Terrorist Surveillance Program writ large; the statutory immunity for telecommunications providers created by Title II of the FISA Amendments Act of 2008; and any other intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending at such time as the activity was approved by a Federal court.

Relying on similar precedents, the bill requires the High Court to expedite its consideration of such cases. The bill, however, is limited to circumstances where the Court has not previously decided the question at issue. Thus, it does not create a permanent right of review for all similarly situated parties, but it does require the Court to take up the matter in the first instance.

Congress clearly has the power to require appellate review by the Supreme Court under Article III, Section 2 of the Constitution, and it has exercised this prerogative. For example, 28 U.S.C. Sec. 3904 provides for direct appeal to the Supreme Court of decisions ``upon the constitutionality'' of the Congressional Accountability Act if the Court ``has not previously ruled on the question'' and requires the Court to ``expedite the appeal.'' Congress used nearly identical language to provide for direct appeal and expedited Supreme Court review of the constitutionality of a ban on flag burning in 18 U.S.C. Sec. 700.

I propose similar action here. It is hard to conceive of a better case to have finally decided in the Supreme Court than one which challenges the legality of warrantless wiretapping--or the constitutionality of the retroactive statutory defenses passed by Congress last year.

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

Mr. President, I seek recognition to speak on legislation I am introducing with Senator Casey that will require the Secretary of Agriculture to determine the price of all manufactured milk, classified as Class II milk, using the national average cost of production. At a time when the dairy farmers in Pennsylvania and across the country are seeing record low prices for their milk, this legislation is necessary to bring the price of milk back to a level where farmers can earn a living and provide for their families.

Over the past year, farmers in my state have seen the average price for a hundredweight, cwt, of milk drop from around $24 in July 2008, to hovering around $10 this February. This dramatic price decrease has been the result of a perfect storm of factors, including record high fuel prices last summer, which increased the cost of feed and other supplies, and a decrease in demand for dairy products abroad, where cases of melamine in milk have caused a severe drop in demand.

Last year, Sen. Casey and I worked diligently to increase the Milk Income Loss Contract, MILC, Program in the 2008 Farm Bill. We were successful in

including a cost of production increase to all MILC payments. These direct payments from the federal government are triggered when the price of milk per cwt falls below $16.94. When the average price of milk for a given month falls below this trigger, farmers are paid 45 percent of the difference between the actual price of milk and the trigger price. With the 2008 Farm bill's inclusion of the cost of production to these payments, farmers are seeing higher MILC payments than they otherwise would.

However, this is not enough. I have heard numerous reports from my constituents that the price of milk has fallen so low that they are fearful of having to sell their farms in order to provide for their families. Many of the dairy farms in Pennsylvania are small, family- owned farms, which, once sold, will be lost forever. We cannot let this happen. The dairy industry is critical not only to Pennsylvania's economy, but to the economy of the U.S. and to the security of our nation.

The Federal Milk Marketing Improvement Act will not only use a national average cost of production to determine Class II milk, but will also keep the Secretary of Agriculture engaged in protecting farmers from falling milk prices. This legislation would require the Secretary to adjust the value of milk four times a year, ensuring that price volatilities in the fuel sector will not unfairly hurt this industry, as we have seen it do in the past year.

Finally, this legislation provides an exemption for new dairy producers, up to 3 million pounds of milk during the first year of production, to encourage growth in the industry. With recent losses across the country of so many dairy farms, this provision is important to spurring new farmers and producers to enter the dairy industry.

I look forward to working with my colleagues to advance this and other legislation which will help a vital industry to this country. Our dairy farmers are the backbone of the agricultural community, and they deserve our support.

Mr. President, I rise today to introduce El Rio Grande Del Norte National Conservation Area Establishment Act. This legislation will designate approximately 235,980 acres of public land managed by the Bureau of Land Management in Taos and Rio Arriba counties as a National Conservation Area. The conservation area includes two new wilderness areas--the 13,420-acre Cerro del Yuta Wilderness on the east-side and the 8,000-acre Rio San Antonio Wilderness in the west.

The conservation area will protect and enhance cultural, ecological, and scenic resources in an area with premier recreational opportunities important to the region's economy. It incorporates the upper reaches of the Rio Grande Gorge, previously designated as a Wild and Scenic River, and protects elk wintering grounds and migratory corridors along the plateau between Ute Mountain to the east and San Antonio Mountain to the west. The conservation area will protect breeding habitat for other game species like deer and antelope and for birds of prey that hunt throughout the area, including peregrine falcons, golden eagles, and bald eagles. The riparian area along the Rio Grande also provides important habitat for brown trout and the federally-listed endangered southwestern willow flycatcher.

The Cerro del Yuta Wilderness will add protections to Ute Mountain, a mountainous and forested extinct volcano which rises to more than 10,000 feet from an elevation of about 7,600 feet at its base. From its peak Ute Mountain offers views of the Sangre de Cristo Mountains to the east, the deep canyon walls of the Rio Grande Gorge at its western base, and the high mesa sagebrush-grasslands interspersed with pinon juniper woodlands that form the majority of the conservation area to its west. Known as Tah Ha Bien to members of the Taos Pueblo and Cerro del Yuta to the earliest Hispanic settlers of the region, Ute Mountain was named for the historic Ute tribe that traversed this area along its route to the eastern plains. The mountain has a long history both geologically and culturally speaking, and evidence of human interaction with Ute Mountain can be still be found, including prehistoric hunting stations, historic

sheep herding camps, and important sacred sites on the mountain. As a relatively new addition to the public domain, the Bureau of Land Management has only begun to account for all the cultural resources that may be present on Ute Mountain.

The Rio San Antonio Wilderness Area lies northwest of San Antonio Mountain and is currently managed as a Wilderness Study Area by the Bureau of Land Management. Composed of grassland vegetation similar to the majority of the conservation area, its unique character is shaped by the 200-foot-deep canyon formed by the waters of the Rio San Antonio that bisects the wilderness area. The canyon provides important riparian habitat to wildlife and offers visitors opportunities for solitude and primitive and unconfined recreation. A favorite pastime of locals and visitors alike is the outstanding opportunity for fly fishing the Rio San Antonio. By affirmatively designating this area as wilderness, we can help preserve its natural character that draws visitors to the area.

This legislation seeks to protect the valuable natural and cultural resources found in the area while also recognizing that the history of these lands is still being written by the local community, composed of Pueblo Indians, descendents of Hispanic and American settlers, and new generations of settlers drawn to the area for similar reasons as those who came before them. Residents maintain a strong connection to these public lands and are interested in preserving the traditional ways in which they have used them. A good example of this is the importance to the local community to ensure that the continued and sustainable collection of pinon nuts and firewood from the public lands is permitted. Based on this input, earlier drafts were revised to make specific mention that these uses are permissible within the conservation area. In addition, existing grazing within the conservation area will be preserved consistent with current management practices.

Visitors and residents of northern New Mexico also enjoy these public lands for recreational purposes, including hiking, camping, mountain biking, river rafting, skiing, hunting, fishing, photography and bird watching, among many others. The local economy benefits greatly from the tourists who visit this area to take in the scenic beauty and natural character of the region, and it is my hope that this designation will further highlight the region as a premier destination in the State, nationally and internationally.

This bill is the culmination of more than 2 years of work with members of the local community to craft language that achieves the balance vital to ensure a thriving economy, the preservation of the region's natural resources, and a sustained way of life for residents of northern New Mexico. Without the constructive input from the local community, this bill would look very different from the one that I am privileged to introduce today. I am also pleased that my colleague Senator Tom Udall is a cosponsor of this legislation, and I look forward to working with him and other members of the Senate toward its ultimate passage.

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

Mr. President, when our States and cities lease their tolled highways to private parties, American taxpayers almost always experience significant fee increases at the toll booth. But our taxpayers' contribution does not end there. Under current tax law, the Federal Treasury subsidizes private lessors through exceedingly generous depreciation and amortization deductions. Meanwhile, Federal funding continues to flow to the state government--as though the highway had never been privatized. Today, I rise to introduce two bills that would put an end to this fleecing of the American taxpayer. I am pleased that Senator Grassley, the Ranking Member of the Senate Finance Committee, is joining me in introducing both bills.

I'd like to take a moment to set the stage, by explaining where we find ourselves. There is no denying the seriousness of our nation's surface transportation funding challenges. Among the solutions that have been offered are so-called Public-Private Partnerships, or PPPs. Under one PPP model, a state or local government leases existing highways to a private party, often on a very long-term basis. We have already seen two existing highways sold off to private companies. In 2004, Chicago sold Macquarie of Australia concession rights to the Chicago Skyway for 99 years, in exchange for $1.8 billion. In 2006, Indiana sold concession rights to the Indiana Toll Road to a partnership between Cintra of Spain and Macquarie for 75 years, in exchange for $3.8 billion. Both deals have generated significant interest from the press and the financial community. Now, investors are approaching state and local governments across the country, seeking a piece of what is believed to be a very lucrative pie. For instance, last year Governor Ed Rendell proposed a $12.8 billion deal for a 75- year sale of concession rights to the Pennsylvania Turnpike, which, if ratified, would represent the largest privatization of highway infrastructure in U.S. history.

While I agree that States should have some latitude to determine how to operate their own highways, that doesn't mean that the Federal taxpayer should subsidize leasing these highways. But as we uncovered at a Finance Subcommittee on Energy, Natural Resources and Infrastructure hearing that I convened last year, the Federal government--and taxpayers in all states--now subsidizes these PPPs through exceedingly generous tax provisions. To take advantage of the Tax Code's 15-year cost recovery period for highway infrastructure, a private lessor must obtain constructive ownership of the road. Constructive ownership is generally attained by entering a lease that exceeds the 45-year period that the Bureau of Economic Affairs, BEA, says is a road's ``useful life.'' Once they attain this constructive ownership, the private lessor can recover most of its costs over the first 15 years of the lease--or one-third as long as BEA says the highway infrastructure can be expected to last. The end result? Private operators demand exceptionally long lease lengths, to ensure they can take advantage of the Tax Code's subsidy.

These Tax Code provisions are of interest not just because the Senate must prudently shepherd our Nation's tax revenues, but also because there are considerable transportation policy dangers to these very long-term leases. Chicago signed a 99-year lease for the Skyway, a road that, at the time of the lease, had only a 47 operating history. Indiana signed a 75-year lease for its Toll Road, a highway that, at the time of the lease, had only a 49 history. With respect to a critical artery of transportation, how can a State or city possibly predict its future needs for a period that is twice that artery's operating history? It is impossible to envision how transportation will change in the next hundred years. As a point of reference, the Model T is 101 years old--can we even pretend to imagine what the next century will bring? These very long lease lengths are all the more troubling because these deals often contain non-compete clauses, which make it difficult for public transportation agencies to address safety and congestion problems on highways and adjacent streets.

It is true that private lessors are merely following the letter of the law. But when cost-recovery rules subsidize forms of investment that contravene the public interest, Congress should change those rules. Indeed, public policy concerns have already led Congress to alter cost-recovery rules for other assets, such as luxury cars, sport utility vehicles, and sports franchises.

Senator Grassley and I agree that to protect the American taxpayer, such an alteration is also necessary here. It's time for the tax tail to stop wagging the dog, by cutting off Federal tax subsidies to companies that privatize existing American highways. Our first bill, the Transportation Access for All Americans Act, would do just that. It would allow a private operator of an existing highway to depreciate costs associated with tangible highway infrastructure on a 45-year period, in line with Bureau of Economic Analysis estimates, and to amortize the intangible right to collect tolls on a schedule that is no shorter than the lease's actual length. By making these changes to the Tax Code, our bill eliminates the unjustifiable subsidy that the U.S. taxpayer is now asked to provide directly to the private operators.

Our second bill, S. 885, the Transportation Equity for All Americans Act, deals with the highway funding that is provided for a privatized road. As I understand it, when a road is privatized, all responsibility for maintaining the road, collecting tolls, paying the investors' profit, and so forth are taken on by the private entity. It simply makes no sense that the road should continue to qualify for highway funding if the road is privately operated. Similarly, it makes no sense that the formulae that distribute the Federal highway funding should reflect any credit for privatized roads--it would be like the users paying twice, once at the toll booth and again in the taxes they already pay to use the Nation's highways.

Under current law, all roads, including interstate highways, national highways, and other major state and local roads in the federal-aid system are included in the calculation of the federal highway funds. The lane-miles and vehicle-miles-traveled on all these roads are used directly to apportion the federal highway funds for the Interstate Maintenance Program, the National Highway Program, and the Surface Transportation Program. The calculation currently includes roads that are publicly or privately operated. Our second bill is very simple; it subtracts from these calculations the lane-miles and vehicle-miles- traveled for any privatized highway, thus eliminating the double payments. The bill also corrects the Equity Bonus program to reflect properly the changes in the formula calculations.

This year Congress must reauthorize the Federal surface transportation programs. I look forward to working with Finance Chairman Baucus and Senator Grassley and EPW Chairman Boxer and Senator Inhofe to complete a new transportation bill that meets the needs of my State and the Nation.

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

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

Mr. President, today I am pleased to join Senators Brownback and Durbin as an original cosponsor of the Congo Conflict Minerals Act of 2009. The purpose of this bill is to bring greater attention and transparency to the way in which the trade in three minerals--columbite-tantalite, cassiterite, or wolframite--is intertwined with the ongoing violence, displacement and human rights abuses in the eastern Democratic Republic of Congo. The metals derived from these three minerals are used widely in the electronic products that we use daily, from cell phones to laptops to digital cameras. By working to ensure the raw materials used in those products are not benefiting armed groups, we can have a positive impact on ending armed conflict and human rights abuses in the Congo.

Specifically, this bill charges the State Department to support the work of the United Nations Group of Experts to further investigate and provide companies with guidance on the links between natural resources and the financing of armed groups. It also charges the State Department with developing a strategy to help break these linkages, while helping governments in the region to establish the necessary frameworks and institutions to monitor and regulate the cross-border trade of these minerals. Then, this bill requires U.S.-registered companies selling products containing those three minerals to disclose the country of origin of those minerals and, if they come from Congo or neighboring countries, to give further information, including the mine of origin. This requirement will compel companies to take responsibility for their suppliers and thus bring greater transparency to the trade in these minerals, which may enable more targeted actions down the road. Finally, this bill encourages USAID to expand programs seeking to improve the conditions and livelihood prospects for communities affected by this violence in Congo. We must not forget that the long- term goal is not to shut this trade down, but to support a conflict- free mining economy that benefits the Congolese people.

The United Nations Group of Experts has reported over the years that various illegal armed groups in eastern Congo profit greatly from the region's vast natural resources. In February 2008, the Group of Experts stated, ``individuals and entities buying mineral output from areas of the eastern part of the Democratic Republic of Congo with a strong rebel presence are violating the sanctions regime when they do not exercise due diligence to ensure their mineral purchases do not provide assistance to illegal armed groups.'' They defined due diligence as determining the precise identify of the deposits from which the minerals have been mined, establishing whether or not these deposits are controlled and/or taxed by illegal armed groups, and refusing to buy minerals known to originate--or suspected to originate--from deposits controlled/taxed by these armed groups. In December 2008, the United Nations Security Council unanimously adopted Resolution 1857, broadening existing sanctions relating to Congo to include individuals or entities supporting the illegal armed groups through the illicit trade of natural resources. The resolution also encouraged member countries to ensure that companies handling minerals from Congo exercise due diligence with their suppliers.

The U.S. has invested financial resources and diplomacy over recent years in trying to bring peace and stability to eastern Congo, and there have been some successes. However, our efforts have ultimately been hindered by a failure to directly address the underlying causes of conflict. A study by the Government Accountability Office released in 2007 found that U.S. efforts in Congo are undermined by weak governance and mismanagement of natural resources. The plunder and unregulated trade of eastern Congo's rich mineral base continues to make war a profitable enterprise. This legislation attempts to finally confront and address that problem. It commits the United States government and those companies under our jurisdiction to shed light on the dynamics of eastern Congo's mineral economy and to take actions to reduce its exploitation by armed groups. This can be an important step--perhaps even a transitional one--as we work with our regional partners to help them establish and implement better frameworks for regulation and oversight.

Some may say the bill goes too far, while others may argue that this bill does not go far enough; that it has loopholes and lacks sufficient ``teeth.'' This bill is not perfect. However, we must realize the conflict mineral problem is a complex one. This legislation is just a first step to bring greater transparency to that problem, which will then enable more comprehensive, robust and targeted measures down the road. At the same time, we must tread carefully because there are many communities in eastern Congo whose livelihoods are intertwined with the mining economy. All-out prohibitions or blanket sanctions could be counterproductive and negatively affect the very people we seek to help. I am confident that this bill is sensitive to that complex reality. It tasks the Government Accountability Office, within two years, with assessing any problems resulting from the implementation of this Act, determining any adverse impacts on local Congolese communities, and making recommendations for improving its effectiveness. It also urges USAID to expand its programs to work with these communities and improve their livelihood prospects.

I also realize that some others may argue that this bill goes too far; that it imposes impractical or onerous requirements on companies who end-use these minerals. Similar arguments were made in the early days of the Kimberley Process. I appreciate that these three minerals often pass through extensive supply chains and processing stages before the relevant metals are used in technological products. Bringing transparency to those supply chains may not be easy, but it is something we can and should expect of industry when certain commodities are known to be fueling human rights violations. Industry itself has acknowledged this. In February 2009, the Electronic Industry Citizenship Coalition, which includes several major U.S. electronic companies, put out a statement saying that companies can and should uphold responsible practices in their operations and work with suppliers to meet social and environmental standards with respect to the raw materials used in the manufacture of their products. That was a bold statement and I want to work with companies to make it a reality with respect to Congo.

I traveled in 2007 to eastern Congo and saw firsthand the grave suffering of people who have lived through a decade of conflict and humanitarian crisis. The numbers are staggering: an estimated 5.4 million deaths over the last decade--making it the deadliest conflict since the Second World War. In addition, millions of people are still displaced from their homes, living in squalid camps where children are subject to forced recruitment and women suffer unspeakable levels of sexual violence. In my travels to many parts of Africa over the years, the suffering of women and girls in eastern Congo particularly stands out. I met with women and girls there who had been gang raped, often leaving them with horrific physical and psychological damage. I met with women who had lost their husbands, their homes, and their livelihoods and yet against all odds they refused to give up--if only for the sake of their children. I believe this bill will make attaining peace for these women and their families a little easier and that is one of the reasons why I am supporting it.

In 2006, under the leadership of then-Senator Obama and Senator

Brownback, the U.S. Congress passed the Democratic Republic of Congo Relief, Security and Democracy Promotion Act. That bill committed the United States to work comprehensively toward peace, prosperity and good governance in the Congo. The Congo Conflict Minerals Act of 2009 seeks to move us a step closer toward those goals. I urge my colleagues to support it, and thank Senators Brownback and Durbin for their leadership on this important issue.

Mr. President, today I rise to introduce the Nunn-Lugar Cooperative Threat Reduction Improvement Act of 2009.

The proliferation of weapons of mass destruction remains the number one national security threat facing the United States and the international community. Our success in responding to this threat depends on cooperation with other nations and on maintaining a basic consensus on non-proliferation principles. The Nunn-Lugar Program has become the primary tool through which the U.S. works to safely destroy nuclear, chemical, and biological warfare capacity. Through Nunn-Lugar, the U.S. has eliminated more nuclear weapons than the combined arsenals of the United Kingdom, France, and China. When the Soviet Union dissolved Ukraine, Kazakhstan and Belarus emerged as the third, fourth and eighth largest nuclear weapons powers in the world. Today they are nuclear weapons free.

I am delighted that President Obama made the Nunn-Lugar Cooperative Threat Reduction Program such a high profile issue during his campaign. In 2005, then-Senator Obama and I traveled to Russia to see the Nunn- Lugar Program in action. We visited the Russian nuclear warhead storage facility at Saratov and the mobile missile dismantlement facility near Perm. This experience gives him a unique vantage point to take important steps to revitalize and expand the program.

The Nunn-Lugar Program has accumulated an impressive list of accomplishments. To date it has deactivated 7,504 strategic nuclear warheads, 742 intercontinental ballistic missiles, ICBMs, destroyed, 496 ICBM silos eliminated, 143 ICBM mobile launchers destroyed, 633 submarine launched ballistic missiles, SLBMs, eliminated, 476 SLBM launchers eliminated, 31 nuclear submarines capable of launching ballistic missiles destroyed, 155 bomber eliminated, 906 nuclear air- to-surface missiles, ASMs, destroyed, 194 nuclear test tunnels eliminated, 422 nuclear weapons transport train shipments secured, upgraded security at 24 nuclear weapons storage sites, and built and equipped 16 biological monitoring stations.

While originally focused on the states of the former Soviet Union,

Nunn-Lugar has also produced results outside of Russia. The program eliminated a formerly secret chemical weapons stockpile in Albania. Other governments, such as Pakistan, Afghanistan, Congo, the Philippines, and Indonesia are now inquiring about Nunn-Lugar assistance with dangerous weapons and materials.

Mr. President, last month the National Academy of Sciences, NAS, released a report on the future of the Nunn-Lugar Program. It provided a critically important set of recommendations that should guide the Obama Administration's efforts to expand the Nunn-Lugar Program around the world.

The report was required by the 2008 National Defense Authorization Act to recommend ways to strengthen and expand the Defense Department's Nunn-Lugar Cooperative Threat Reduction program. The report argues persuasively that the Nunn-Lugar Program should be expanded geographically, updated in form and function and supported as an active tool of foreign policy. Over the last 16 years Nunn-Lugar has been focused heavily on the destruction and dismantlement of massive Soviet weapons systems and the facilities that developed them. In the future, the program will be asked to address much more complex and diverse security threats. The changing security environment means that the magnitude of projects focused on former Soviet weapons threats are likely to be the exception and not the norm. As a result, the NAS report argues that the program must be less cumbersome and bureaucratic so it can be more agile, flexible, and responsive to ensure timely contributions across a larger number of countries. It concludes by saying ``that expanding the nation's [Nunn-Lugar] cooperative threat reduction programs beyond the former Soviet Union, as proposed by Congress, would enhance U.S. national security and global stability.'' The report argues that Nunn-Lugar ``should be expanded geographically, updated in form and function . . . and supported as an active tool of foreign policy by engaged leadership from the White House and the relevant cabinet secretaries.''

Specifically, the NAS Report recommends that the Pentagon take the following steps: Remove any remaining geographic limitations on the program and streamline contracting procedures. Request from Congress limited ``notwithstanding authority'' to give Nunn-Lugar the flexibility it needs for future engagements in unexpected locations. Request that Congress exempt the Nunn-Lugar Program from the Miscellaneous Receipts Act to enable the program to accept funds from foreign countries and to co-mingle those with program funds to accomplish nonproliferation and disarmament goals. Review the legal and policy underpinnings of the Nunn-Lugar Program because many are cumbersome, dated, limiting, and often diminish value and hinder success. In addition to supporting traditional arms control and nonproliferation goals, Nunn-Lugar should be used to advance other multilateral instruments such as the Proliferation Security Initiative and United Nations Security Council Resolution 1540. While the Nunn- Lugar Program grew through the 1990s there was little corresponding growth in the size of the staff that guided policy--the office must be expanded. Engage broader military components, including the Unified Combatant Commands, to ensure full coordination and effective implementation of Nunn-Lugar.

The majority of these items do not require legislation but rather simple Executive Branch management actions and improvements. As a result, I have written to Under Secretary of Defense for Policy, Michele Flournoy, and the new WMD Coordinator at the White House, Gary Samore, urging them to adopt these important recommendations. But the granting of limited notwithstanding authority for the Nunn-Lugar Program and its exemption from the Miscellaneous Receipts Act does require Congressional authorization. The bill I am introducing today is focused on accomplishing this task.

One of the most striking points made by the report's authors was that the Nunn-Lugar Program has suffered from a lack of leadership. It states that ``since 1995, the level of leadership in DoD has been downgraded from a high priority program managed by a Deputy Assistant Secretary of Defense for Cooperative Threat Reduction, and Special Assistant to the Secretary of Defense, to a CTR Policy Office under a Director for the CTR Program.'' An even more stark contrast is the time and diplomacy that former Secretaries Perry and Cohen committed to visiting project sites and engaging foreign capitals when compared to their successors. I am confident this is a trend that can be reversed quickly by the Obama administration with proper leadership. Under Secretary Flournoy, the Deputy Secretary of Defense, and Secretary Gates should make visiting Nunn-Lugar sites a high priority and offer their personal diplomacy to assisting the program in meetings its goals.

The Nunn-Lugar Program has made critically important contributions to US national security through the elimination of strategic weapons systems and platforms arrayed against us. Even as the threat changes, I am confident that it will continue to serve US interests with the right leadership and direction. I commend the members of the NAS committee for an insightful and invigorating set of recommendations. I ask my colleagues here in the Senate to support this legislation and I am hopeful that the Obama administration will use the report's recommendations as a resource as they move to expand the program.

In sum, we must take every measure possible in addressing threats posed by weapons of mass destruction. We must eliminate those conditions that restrict us or delay our ability to act. The US has the technical expertise and the diplomatic standing to dramatically benefit international security. American leaders must ensure that we have the political will and the resources to implement programs devoted to these ends.

Mr. President, The Tlingit and Haida people, the first people of Southeast Alaska, were perhaps the first group of Alaska natives to organize for the purpose of asserting their aboriginal land claims. The native land claims movement in the rest of Alaska did not gain momentum until the 1960s when aboriginal land titles were threatened by the impending construction of the Trans Alaska Pipeline. In Southeast Alaska, the taking of Native lands for the Tongass National Forest and Glacier Bay National Monument spurred the Tlingit and Haida people to fight to recover their lands in the early part of the 20th Century.

One of the first steps in this battle came with the formation of the Alaska Native Brotherhood in 1912. In 1935, the Jurisdictional Act, which allowed the Tlingit and Haida Indians to pursue their land claims in the U.S. Court of Claims, was enacted by Congress.

After decades of litigation, the native people of Southeast Alaska received a cash settlement in 1968 from the Court of Claims for the land previously taken to create the Tongass National Forest and the Glacier Bay National Monument. Yes, there was a cash settlement of $7.5 million, but the Native people of Southeast Alaska have long believed that it did not adequately compensate them for the loss of their lands and resources.

Beware of the law of unintended consequences. When the native people of Southeast Alaska chose to pursue their land claims in court they could not have foreseen that Congress would ultimately settle the land claims of all of Alaska's native people through the Alaska Native Claims Settlement Act of 1971. Nor could they have foreseen that they would be disadvantaged in obtaining the return of their aboriginal lands because of their early, and ultimately successful, effort to litigate their land claims. Sadly this was the case.

The Alaska Native Claims Settlement Act of 1971 imposed a series of highly prescriptive limitations on the lands that Sealaska Corporation, the regional Alaska Native Corporation formed for Southeast Alaska, could select in satisfaction of the Tlingit and Haida land claim. None of the other 11 Alaska-based regional native corporations were subject to these limitations. Today, I join with my Alaska colleague, Sen. Mark Begich, cosponsored by Sens. Daniel Akaka and Daniel Inouye to introduce legislation to right this wrong.

For the most part, Sealaska Corporation has agreed to live within the constraints imposed by the 1971 legislation. It has taken conveyance of roughly 290,000 acres from the pool of lands it was allowed to select under the 1971 act. As Sealaska moves to finalize its land selections it has asked the Congress for flexibility to receive title to certain lands that it was not permitted to select under the prescriptive, and as Sealaska believes, discriminatory, limitations contained in the 1971 legislation.

The legislation we are introducing today would allow Sealaska to select its remaining entitlement from outside of the withdrawal areas permitted in the 1971 legislation. It allows the Native Corporation to select up to 3,600 acres of its remaining land entitlement from lands with sacred, cultural, traditional or historical significance throughout the Alaska Panhandle. Substantial restrictions will be placed on the use of these lands.

Up to 5,000 acres of land could be selected for non-timber related economic development. These lands are called ``Native Futures'' Sites in the bill. Other lands referred to as ``economic development lands'' in the bill could be used for timber related and non-timber related economic development. These lands are on Prince of Wales Island, on nearby Kosciusko Island.

Sealaska observes that if it were required to take title to lands within the constraints prescribed by the 1971 legislation it would take title to large swaths of roadless acres in pristine portions of the Tongass National Forest. The lands it proposes to take for economic uses under this legislation are predominantly in roaded and less sensitive areas of the Tongass National Forest.

The pools of lands that would be available to Sealaska under this legislation are depicted on a series of maps referred to in the bill. It must be emphasized that not all of the lands depicted on these maps will end up in Sealaska's ownership. Sealaska cannot receive title to lands in excess of its remaining acreage entitlement under the 1971 legislation and this legislation does not change that entitlement.

Early in the 110th Congress, several of our friends in the other body introduced H.R. 3560 to address these issues. Later in September 2008 I introduced legislation similar to this bill to give all parties time to thoroughly review the measure. Over the past two years, Sealaska, and the communities of Southeast Alaska have worked collaboratively in good faith to identify issues that may arise from the transfer of lands on which those communities have relied for subsistence and recreation out of the Tongass National Forest and into native corporation ownership. My colleagues in the Alaska congressional delegation and I have devoted a great deal of time in reaching out and encouraging comment from Southeast Alaska on this new bill. Sealaska has itself conducted numerous public meetings on the bill throughout the region. I believe that these efforts have helped us to formulate a bill that addresses the concerns we most frequently heard.

The legislation we are introducing today in the 111th Congress is different from the original bill in numerous respects. In some cases, the lands open to Sealaska selection have changed from those that were available in the first House bill to accommodate community concerns. For example, this bill, compared to last September's version, reduces the economic development timber land selection pool to about 78,000 acres from 80,000 to protect additional boat anchorages by retention of shoreline timber in Shipley Bay on northern Prince of Wales Island and at Cape Pole on southwest Kosciusko Island. It eliminates the Lacy Cover Native Futures Site on northern Chichagof Island, it provides full public access across sacred sites and historic trail conveyances near Yakutat and Kake. It addresses the concern of the Huna Indian Association for management of sacred sites in Glacier Bay and it deals with a complaint about the original

bill by the U.S. Forest Service. Our conversations have led to precedent setting commitment by the Sealaska Corporation to maintain public access to the economic development lands it receives on Prince of Wales Island for subsistence uses and recreational access. These commitments are laid out in section 4(d) of this bill.

Sealaska also has offered a series of commitments to ensure that the benefits of this legislation flow to the broader Southeast Alaska economy and not just to the Corporation and its native shareholders. These commitments are memorialized in a letter from Sealaska's chairman, Alaska State Senator Albert Kookesh, and its president and chief executive officer, Chris E. McNeil, Jr.

We all hope that after 38 years that this measure can advance to passage this Congress and resolve the last 65,000 to 85,000 acres of entitlement that southeast Alaska's 23,000 Native shareholders have long had a right to receive. It is impossible to expect Alaska's native corporations to provide meaningful assistance to Alaska's native community if they continue to be denied the lands that Congress intended them to receive to utilize to provide economic benefits for the native people's of the State. I hope this measure can pass and become law before the 40th anniversary of the claims settlement act in 2011. Justice delayed truly is justice denied.

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

There being no ojbection, the text of the bill was ordered to be