A resolution to express the sense of the Senate in support of permitting the televising of Supreme Court proceedings.

Mr. President, I have sought recognition to again alert my

colleagues to what I consider to be a very important matter, and that is that the Supreme Court of the United States is materially changing the traditional separation of powers and that, as a result, the Congress of the United States continues to lose very substantial power in the Federal scheme under the Constitution of the United States. This is a theme I have submitted over the course of the last 30 years, since 1981, with the confirmation proceedings of Justice Sandra Day O'Connor. And in now the 12th proceeding that I will personally have participated in, I raise this issue again to urge my colleagues to take a stand.

The only opportunity we have to influence the process is through the confirmation of Supreme Court Justices. But we have witnessed a series of cases where instead of the traditional doctrine of separation of power, there has been a very material concentration of power which has gone principally through the Court and secondarily to the executive branch.

The Framers put the Congress under Article I. It was thought at the time the Constitution was adopted that Congress would be the foremost branch representing the people. The executive branch is Article II, and the judiciary branch is Article III. Were the Constitution to be written today, I think we would find the course inverted. But what we have seen here is that recent decisions of the Supreme Court have abrogated the traditional deference given by the judicial branch to findings of fact and the determination of public policy arising from what Congress finds in its extensive legislative hearings, with the Court substituting its judgment with a variety of judicial doctrines. During the confirmation process where we examine the nominees, we continue to receive lip service about congressional authority but, once confirmed, we find that the nominees have a very different attitude and engage in very substantial jolts to the constitutional law in effect.

The generalized standard for what would be the basis for upholding an act of Congress was articulated by Justice Harlan in Maryland v. Wirtz in 1968 interpreting the commerce clause, saying:

Where we find that the legislation as a rational basis for

finding a chosen regulatory scheme necessary to the

protection of commerce, our investigation is at an end.

That is the general legislative standard which had been adopted by the Court in reviewing acts of Congress until the case of City of Boerne v. Flores in 1997. There, the Supreme Court adopted a new standard. They articulated it as congruence and proportionality, with the Supreme Court of the United States reviewing the act of Congress to decide whether it was congruent and proportional to what the Congress sought to achieve, and that entailed an analysis of the record, giving very little deference to what Congress had found.

On its face, the standard of congruence and proportionality suggests that the Court can come out anywhere it chooses. That was the view of a very strong dissent by Justice Scalia in a subsequent case, where he said:

The congruence and proportionality standard, like all such

flabby tests, is a standing invitation to judicial

arbitrariness and policy-driven decisionmaking.

So that when you take a standard of that sort and undercut the traditional deference to congressional fact-finding, you end up with the Court making law instead of interpreting law. Under that decision, we have seen a whole torrent of Supreme Court decisions declaring acts of Congress unconstitutional. Illustrative are the Morrison case, involving the Violence Against Women Act, the Garrett case under the Americans With Disabilities Act, and repeatedly the issue was undercut.

As a result, in the confirmation hearings, many of us--this Senator included--sought to establish an understanding of a nominee's approach to giving the deference to congressional findings. Illustratively--and I have spoken on this subject before--Chief Justice Roberts and Justice Alito used all the right language, but when we find the application of the language, they have done a reverse course. Justice Roberts spoke eloquently about the need for modesty and for the Court not to jolt the system, but to follow stare decisis. With respect to fact-finding, this is what Chief Justice Roberts had to say in his confirmation hearing:

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 basis 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. . . .

[A]s a judge, you may be beginning to transgress into the

area of making a law . . . when you are in a position of re-

evaluating legislative findings, because that doesn't look

like a judicial function.

So there you have a very flat statement by the nominee saying that it is not the Court's role to transgress into the area of lawmaking, which is what does happen in reevaluating legislative findings.

Justice Alito said about the same thing. This is his testimony in his confirmation hearing:

I think that the judiciary should have great respect for

findings of fact that are made by Congress. The judiciary is

not equipped at all to make findings about what is going on

in the real world--not these sort of legislative findings.

And Congress, of course, is in the best position to do that.

Congress can have hearings and examine complex social issues,

receive statistical data, hear testimony from experts,

analyze that and synthesize that, and reduce that to

findings. And when Congress makes findings on questions that

have a bearing on the constitutionality of legislation, I

think they are entitled to great respect.

The decision in Citizens United found the Court reversing recent decisions in the Austin and McConnell cases. Instead of giving the deference to the congressional findings, which was articulated by Chief Justice Roberts and Justice Alito, they did an about-face.

In raising this consideration, I do not challenge the good faith of Chief Justice Roberts or Justice Alito. I recognize and acknowledge the difference between testifying in a confirmation hearing and what happens during the course of a decision when deciding a specific case in controversy. But when we take a look at what happened in Citizens United--and again, this is a matter of the illustration--we have the enormous record that was created by the Congress in enacting McCain- Feingold and the findings of fact there to support what the Congress did, which was invalidated by the Supreme Court of the United States in Citizens United, which upset 100 years of precedent in allowing corporations to engage in political advertising.

The scope and detail of the congressional findings were outlined by Justice Stevens in his dissenting opinion in Citizens United. The statement of facts by Justice Stevens on commenting on the record is not a matter of disagreeing on opinions. People are entitled to their own opinions but not to their own facts, as has been reiterated so frequently. This is what Justice Stevens noted on the congressional fact-finding:

Congress crafted in the McCain-Feingold legislation ``in

response to a virtual mountain of research on the corruption

that previous legislation failed to avert.'' The Court now

negates Congress's efforts without a shred of evidence on how

section 203 or its State law counterparts have been affecting

any entity other than Citizens United.

Justice Stevens said this to emphasize not only that the Court's holding ran counter to outstanding congressional judgment but also ``the common sense of the American people,'' who have recognized a need to prevent corruption from undermining self governing since the founding and who have fought against the distinctive corrupting potential of corrupt electioneering since the days of Theodore Roosevelt.

Justice Stevens went on to point out that the record compiled in the context of the congressional legislation was more than 100,000 pages long. He noted that judicial deference is particularly warranted, whereas here we deal with the congressional judgment that has remained essentially unchanged throughout a century of legislative adjustment.

Now, as a result of what happened in Citizens United, we found that, illustratively, Chief Justice Roberts did substantially differently when on the Court in contrast with what he did in his confirmation hearing. In the confirmation hearing, Chief Justice Roberts did acknowledge that the act was a product of an ``extraordinarily extensive legislative record.''

``My reading of the Court's opinion,'' Chief Justice Roberts went on, ``is that

was the case where the Court's decision was driven in large part by the record that had been compiled by Congress. The determination there was based on the extensive record carrying a lot of weight with the justices.''

The matter was particularly problemsome. As Justice Stevens noted:

The Congress relied upon the decision of the Supreme Court

in the Austin case.

Stevens noted that overruling Austin was especially significant because Congress had specifically relied on that decision in drafting the McCain-Feingold Act.

So essentially what you have here is relatively recent decisions by the Supreme Court of the United States in Austin and McConnell. You have a very extensive congressional record, which sets forth the factors about the need to avoid corrupt practices and electioneering brought about by money and, beyond the actual corrupt practices, the appearance of corruption, and the legislative effort to set this kind of a factual basis. And you have Justices in confirmation hearings committing to respecting and being deferential to congressional findings. But when the decision comes, 100 years of precedent is overturned. You don't have a modest decision; you have a decision which jolts the system.

It is a difficult matter where we proceed candidly as to where we go beyond getting the most positive assurances we can from the nominees. I suggest to my colleagues that when we begin the confirmation process with Solicitor General Kagan next week, this should be a focus of attention because what is happening is that the power of Congress is being diluted. If you have legislative findings that go for 100,000 pages and then you have Justices who have under oath said that they will give deference to congressional findings; you have Congress enacting the McCain-Feingold law based upon the standards set by the Supreme Court of the United States in the Austin case; you have the relatively recent precedents of Austin and McConnell, for instance, the Federal Election Commission; and then you have a case like Citizens United coming down, that ought to be a sharp focus of attention.

My sense is that the reality is that this body and our counterpart across the Rotunda pay relatively little attention to what the Supreme Court of the United States does. They have the final say. It is often noted that they are right only because they are final. When we have an opportunity, through the confirmation process, to focus on these issues, I suggest to my colleagues that it is high time we do so.

There is a second area where the authority of Congress has been very materially undermined. It has been where the Supreme Court of the United States declines to decide cases. We have a situation where the Court hears and decides relatively few cases. This is against the backdrop where, historically, the Supreme Court of the United States decided many more cases. Going back to 1886, the Supreme Court of the United States had on its docket 1,396 cases and decided 451 cases. In 1987, the Supreme Court issued 146 majority opinions. In 2006, less than 20 years later, the Supreme Court heard arguments in only 78 cases and handed down opinions in only 68 cases. A year later, 2007, the Supreme Court heard arguments in 75 cases and handed down opinions in only 67 cases. In 2008, arguments in 78 cases, decisions in 65 cases. This is in a context where Chief Justice Roberts testified in his confirmation hearing that he thought the Court ought to hear more cases.

In a letter I will submit for the Record, there is a detailing of the tremendous number of important circuit splits where the Supreme Court of the United States does not decide which circuit is correct or you have one circuit deciding a case one way or another circuit deciding a case another way, and then the situation arises in yet a third circuit, and there is no guiding precedent. There is confusion, and I suggest that the Court really has the duty to take up these circuit splits and make a definitive decision so that the law is clarified, so that litigants and lawyers can know where the law stands on a specific case. Stated simply and directly, the Court is not too busy to take up these circuit splits.

There are other major cases where the Court declines to hear cases, which I respectfully submit that the Court ought to hear. Illustrative of one of the major constitutional conflicts in the history of the United States has been the controversy over warrantless wiretaps. You have the Foreign Intelligence Surveillance Act of 1978, which in very emphatic terms says the exclusive way a wiretap may be obtained would be through a warrant, where the Federal investigative authorities filed an affidavit of probable cause with a Federal judge or a Federal magistrate, and only after that permission is granted may the wiretap be activated. That is to protect the very basis of privacy and the very strong interdiction of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure.

It has been 5 years since it was disclosed that the executive branch, under the so-called Terrorist Surveillance Program, was undertaking warrantless wiretapping. The activity was being undertaken under the contention that the President had power as Commander-in-Chief, executive authority under Article II to disregard the act of Congress.

It is standard hornbook law. The Congress cannot legislate in violation of the Constitution. But if, in fact, the President of the United States, under certain circumstances, has the authority as Commander-in-Chief to engage in conduct, Congress may not proscribe it, may not eliminate it, may not limit the power of the President that the President has under constitutional authority.

But 5 years have passed and there has been no decision in the case. A Federal district court judge in Detroit declared the act unconstitutional. The case was appealed to the Court of Appeals for the Sixth Circuit, and in a 2-to-1 decision the court decided that there was no standing, which is a popular doctrine for declining to hear a case and ducking the issue.

I believe any fair analysis of the opinion of the court of the dissenting opinion gave much additional weight to the dissenters or, in any event, a very close question, one of paramount importance that ought to have been decided by the Sixth Circuit.

The case was then taken to the Supreme Court of the United States, which denied certiorari. Those issues are still very much in play.

In a case in the U.S. district court in San Francisco, Judge Vaughn Walker has declared the act unconstitutional. It is questionable whether that is a final ruling in the case. But the Supreme Court of the United States, with as many law clerks as they have--four and five each; many more than they have had in earlier days--and with the very light docket they have, there is no reason that a case such as the Terrorist Surveillance Program should not be adjudicated by the Supreme Court so we would know what the law was on that subject.

Another case which I have spoken about on the floor of the Senate involves the litigation brought by survivors of the September 11 attacks on the United States where some 3,000 people were killed. A lawsuit was begun to get damages from the Government of Saudi Arabia, from five Saudi princes, from a Saudi charitable organization which was an instrumentality of the government, and other defendants.

The Congress of the United States in the sovereign immunity law specifically decided that the sovereign should not have immunity in any case where there was a domestic tort involved, such as the conduct involved in 9/11.

The Court of Appeals for the Second Circuit decided the legislation did not apply because it applied only in situations where a nation had been declared a terrorist state. That exception is nowhere in the statute. It had no place in the decision.

When application was made for certiorari to have the case considered by the Supreme Court, the Solicitor General's Office, headed by Solicitor General Kagan, took the position that the Second Circuit was wrong but urged the Court not to take the case on the ground that there were important foreign policy questions involved. Solicitor General Kagan took the position that where no acts occurred within the United States, the Foreign Sovereign Immunities Act did not apply.

Again, this reading was pulled literally out of thin air. Nothing in legislative history or background would

suggest that the victims of 9/11 ought not have a case against the Government of Saudi Arabia and the princes and the charitable organization, an instrumentality of the state. Under those circumstances, no distinction between the acts occurred, but there was plenty of repercussion and plenty of consequence from that tortious conduct when America was attacked. Here the Supreme Court of the United States has denied to hear the case, which leaves the Congress subservient to the executive branch.

The business about being deferential to foreign powers, in my judgment, is not an adequate basis for disregarding the legitimate claims of the people who were killed on 9/11, not sufficient to disregard the congressional enactment which held that there ought not to be sovereign immunity where there is tortious conduct involved; that the doctrine of sovereign immunity ought to apply to commercial transactions but not to conduct such as was evidenced on 9/11.

Again, we have as an adjunct of what happens when the Court disregards congressional findings. You have the action of the Court in declining to hear cases such as the Terrorist Surveillance Program, such as the litigation brought by the survivors of the victims of 9/11 where the authority of Congress is materially undercut.

There has been other action taken by the Supreme Court of the United States. It is hard to pick the description which is sufficiently forceful, whether it is surprising or whether it is astounding. But litigation was brought in a case captioned McComish v. Bennett where the district court in Arizona held that Arizona's Citizens Clean Elections Act was unconstitutional.

In that case, the State of Arizona had decided to provide for matching funds in order to deal with the problems of campaign financing, trying to deal with the issues of corrupting influence of money, both the fact of corruption and the appearance of corruption.

I am not going to take the time now to go through the long list of cases where Members of Congress have been convicted of illegal campaign contributions which rose to the level of being a quid pro quo and a bribe. But the Federal district court in Arizona said the Arizona legislation, captioned the Citizens Clean Elections Act, was not supported by a compelling State interest, not narrowly tailored, and not the least restrictive alternative and, therefore, was unconstitutional under the First Amendment.

The Court of Appeals for the Ninth Circuit reversed saying there was an ample record to support the legislative enactment.

On June 1 of this year, 20 days ago, the Supreme Court of the United States denied an application to vacate the stay. The Court of Appeals for the Ninth Circuit had stayed the decision of the district court so that the Arizona elections could go forward pursuant to the Arizona Citizens Clean Elections Act.

When the Ninth Circuit heard the case, the Ninth Circuit issued a stay that stopped the carrying out of the district court decision on unconstitutionality so that the elections in Arizona this year could proceed under that act. The losing parties in the Ninth Circuit decision then applied to the Supreme Court to eliminate the stay so the district court opinion would remain in effect.

The Supreme Court, on June 1, denied the application to vacate the stay ``without prejudice to a renewed application if the parties represent that they intend to file a timely petition for a writ of certiorari.''

A week later, the Court reversed course and granted the application to vacate the stay on the district court's injunction ``pending filing and disposition of a petition for writ of certiorari.''

This is complex legalese, but what it does is reinstate the conclusion of the Federal district court in Arizona that the Arizona law is unconstitutional and may not be enforced.

It is a little hard to fathom how the Court can do that without even the filing of a petition for a writ of certiorari.

What we essentially have is the Supreme Court was deciding the Arizona case without the submission of a petition for a writ of certiorari, without following the rules of the Supreme Court for the filing of briefs, or without an argument before a decision was made. It has all the earmarks of a flagrant denial of due process of law.

It is true technically that the Supreme Court may reverse and remand and enter judgment as they choose. But in a contest where the procedures are established, in case after case the practice of the Court--you want to have the Supreme Court of the United States review a case? File a petition for writ of certiorari. Then you have to prepare a brief, then you appear before the Court for argument, and then the Court makes a determination, after hearing the case, what ought to be done.

Here we have the Arizona elections disrupted by a conclusion of the Supreme Court of the United States. It is not even a judgment. It is a reinstatement of a stay.

We have the Supreme Court of the United States today on issues of enormous importance--the election of Federal, State, and local officials, an Arizona law trying to deal in a sensible way with the problems of having candidates spend so much of their time on electioneering. A recent study showed those of us in Congress spent about 25 percent of our time on raising money. I think that is a fairly realistic estimate. I think I saw an affirmative nod from the Presiding Officer, the Senator from Virginia.

I would say that is not much off the mark from my own experiences. My first campaign cost less than $2 million, and the last campaign cost some $23 million. We all have offices away from our office so we comply with the law which prohibits us from making telephone calls to raise money or undertaking any of it on Federal property. It takes a lot of time.

We have a number of former Members of Congress who are in jail today across this land, and we have a lot of public skepticism about the influence of money on congressional decisions. We had eight Members of the House of Representatives in one of the Hill newspapers last week about an investigation of a House Ethics Committee where there was an appearance of some issue where votes were changed in the wake of campaign contributions.

Here we have the Supreme Court eliminating the Arizona law without even having a hearing in the case but reinstating the stay. That is a subject I intend to ask Nominee Kagan about next week.

I have submitted a series of letters to Solicitor General Kagan, one dated May 25, one dated June 15, and I am sending another one today, and I ask unanimous consent to have printed in the Record the full text of these letters.

Mr. President, a good bit of the substance of the questions

which I have been directing toward Solicitor General Kagan involves the question as to whether she would have voted to grant cert. I believe that is an appropriate question, whether she would agree that a case ought to be heard. There is a view that questions ought not to be asked as to what a nominee would do once a case is pending before the Court. I think even that doctrine has some limitations. I think cases such as Brown v. Board of Education, cases such as McCulloch v. Maryland, cases which are well established in the law of the land, ought to be the subject for commitment. But I think there is no doubt--in my opinion, there is no doubt--we should ask her whether she would take a case such as the Terrorist Surveillance Program, or a case such as the litigation involving the claims brought by the survivors of victims of 9/11.

The hearings next week on Solicitor General Kagan will give us an opportunity to move deeply into a great many of these important subjects. While it is true that in many instances we do not get a great deal of information from the nominees, I think the hearings are very important to inform the public as to what goes on with the Court. This is in line with the efforts which I have made to provide for legislation which would call for televising the Supreme Court. The Judiciary Committee has twice passed out of committee, by significant votes--once 12 to 6 and once 13 to 6--legislation which would call for the Supreme Court to be televised.

The Congress of the United States has the authority to make directives on administrative matters--things such as how many Justices constitute a quorum, when they begin their term, how many members there are of the Supreme Court. Congress has the authority to mandate what cases the Supreme Court will hear, and--in the cases which I intend to ask Solicitor General Kagan, such as the terrorist surveillance program--whether she would have granted cert.

There are underlying concerns, which I have raised today, of a certain disrespect which characterizes a good many of the Supreme Court opinions. For example, the opinion by Chief Justice Rehnquist in striking down the legislation protecting women against violence, notwithstanding a very voluminous record--a radical change in the interpretation of the Commerce Clause--where the Court, through Chief Justice Rehnquist, said that the Court disagreed with Congress's ``method of reasoning.''

It is a little hard to understand how the method of reasoning is so much improved when you move across the green from the Judiciary Committee hearing room past confirmation; or where you have the language used by Justice Scalia--and I have quoted some of it earlier-- in the case of Tennessee v. Lane, where Justice Scalia had objected to the congruence and proportionality standard, which he said was a flabby test and a standing invitation to traditional arbitrariness and policy decisionmaking.

Then he went on to criticize his colleagues for, as Justice Scalia said, inappropriate criticism of an equal branch. This is what he had to say about the proportionality and congruent standard

.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 congruent and proportional. As a general matter,

we are ill-advised to adopt or adhere to constitutional rules

that bring us into constant conflict with the coequal branch

of government. And when such conflict is unavoidable, we

should not come to do battle with the United States Congress

armed only with a test of congruence and proportionality that

has no demonstrable basis in the text of the Constitution and

cannot objectively be shown to have been met or failed.

So that is fairly strong language in disagreeing with what the Court has done in establishing the test. And Justice Stevens minced no words in his criticism of Citizens United in saying that the decision by the Supreme Court showed a disrespect for Congress. There the Court, in Citizens United, overruled both McConnell v. Federal Elections Commission and the Austin case. Overruling Austin was very significant, Justice Stevens noted, because Congress specifically relied on that decision in drafting McCain-Feingold. Justice Stevens then said that pulling out the rug beneath Congress in this matter ``shows great disrespect for a coequal branch.''

Well, my colleagues, the Congress has an opportunity to assert itself, to demand the appropriate respect which the Constitution calls for and has been implemented under the doctrine of separation of powers. We can find ways to make sure that commitments about respected congressional fact-finding will be observed, or that the rule of stare decisis will be respected; that when there are major decisions coming before the Supreme Court of the United States which involve the power of Congress vis-a-vis the executive branch, that those decisions will be made.

So let's sharpen our lines of questioning, colleagues, as we move forward to the hearings on Solicitor General Kagan a week from today.

I thank the Chair, and I yield the floor.

I had noticed my colleague standing there. I hope I haven't kept him waiting too long.

I thank the Chair.

Mr. President, very shortly, we will vote on cloture on the CJS bill. As the chairperson of the committee, I wish to say that we want to finish this today so we can move forward with the blessing and the business of funding--Mr. President, I have to yield the floor a moment. I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, reclaiming my time as the manager of the bill, I wish to bring to my colleagues' attention that at 12:25 p.m. today, we are going to vote on cloture of the Commerce-Justice-Science appropriations bill. We wish to finish this bill today. When I say ``we,'' I mean Senator Shelby, my ranking member, and myself.

This bill is the result of a rigorous bipartisan effort to fund the Department of Justice, including the FBI and DEA, the Commerce Department, and major science agencies that propel our country in the area of innovation and technology development, such as the National Science Foundation and the National Space Agency.

We want the Senate to be able to deal with this and then move on to other business.

After the cloture vote, it is our intention to dispose of any pending amendments that are germane to the bill. This bill has been public since June. It has been on the floor already for 4 days and over 20 hours. Senators have had ample time to draft and call up their amendments. Senator Shelby and I hope to be able to move through the amendments in a well-paced but brisk fashion.

We hope our colleagues will cooperate and have any decisions relating to the funding of these important agencies be decided on robust debate and the merits of the argument rather than delay and dither, delay and dither, delay-and-dither tactics of the other side. We don't want to delay. We don't want to dither. We want to proceed, debate germane amendments, and bring our bill to a prompt closure.

Mr. President, I reserve the remainder of my time.

I object, Mr. President. The intention is to vote on cloture and dispose of pending germane amendments. The Senator's amendment is not pending, so I do object, with all courtesy because of my respect for the Senator.

Will the Senator yield for a question?

Is the Senator offering an amendment or giving a speech about the desire to offer an amendment?

Mr. President, I object to the amendment. The intention is to vote on cloture and dispose of pending germane amendments. The Senator's amendment is not pending, so I object.

Mr. President, I object to the Senator's amendment, and I object to the arguments he has made.

First of all, we adopt cloture so that we can proceed on amendments that are germane. Second, in terms of the inaccurate accusation that we are plowing ahead and forging forward, we were on this bill for 4 days, with over 20 hours of debate. There was plenty of time to talk about this amendment, and I was here and ready to engage.

The other thing is that there have been other times--since my bill was pulled from the floor--called morning business, when a Senator could talk for any length of time on any topic he or she wants. Yet silence, silence, silence. So don't use the cloture vote as a way to say there wasn't enough time.

Now let's go to being asleep at the switch. Two accusations were made--the ballooning of the census cost. Well, one of the reasons and the main reason the cost is exploding is that the party in power prior to 2008 was asleep at the switch with the census. They completely dropped the ball on the new technology for being able to go door to door to get a count. It turned into a big techno-boondoggle. It finally took the Secretary of Commerce to uncover that under that rock was another rock, and under that rock were a lot of buckets of malfunctioning microchips. So we had to bail out Secretary Gutierrez and the census because of the techno-boondoggle because the other party was asleep at the switch in maintaining strict quality controls.

Now let's go to the asking of another question. The Senator from Louisiana says he wants to stand up for his State. I agree, we have to stand up for the States, but the time to stand up was in April of 2007. Did you know that the Census is mandated by law to submit the questionnaires to Congress--and they did? So for 1 year, from April 1, 2007, to the close of the review by Congress 1 year later, April 2008, there was plenty of time to say: We don't like the questionnaire; we want to add a citizenship question. That was the time and the place. When you are going to stand up for your State, stand up at the right time to make a difference and not try to amend the law in a way that is going to create administrative havoc.

We can debate the merits of the question, but I am here as an appropriator on the process. The Census Bureau did meet its statutory responsibility. It submitted the questionnaire to the Congress on April 1, 2007. It did not come by stealth in the night, it was not written in invisible ink, it was written in English here for all to see--and also in other languages we could test and use--to say: Do you, Congress, like this questionnaire? Do you have any comments? For all those who want to stand up, that was the time to do it and the time to make a change.

Let's talk about the consequences. It will delay the census so we could essentially not meet our constitutional mandate of having the census done in a timely way. No. 2, it will cost, if we did not do it, another $1 billion and wreak, again, administrative havoc.

Let's go into this whole claim about citizens and noncitizens. The census already tracks the number of citizens and noncitzens through a separate survey. We could talk about what this will mean in reapportionment and so on. Those questions are for debates that lie with the Judiciary Committee.

We are not going to vote up or down on the Vitter amendment, we are going to vote on cloture. Why is cloture important? So we do not have distracting amendments that are better offered on the appropriate substance of the bill. We have to fund the State, Commerce, Justice, Science agencies. The FBI needs us to fund this agency. The Marshals Service needs us to fund this agency. Federal law enforcement, our Federal prisons--you might not like whom the Obama administration puts in Federal prisons, but we need Federal prisons. So we need to pass cloture so we can dispose of germane amendments and move democracy forward.

Mr. President, how much time do I have?

I wish to reserve my time. Did the Senator from Kansas have a question?

Mr. President, we are not prepared to yield back any time. I reserve the remainder of my time.

Certainly.

That is one heck of an argument, I respond to the Senator from Kansas. I have great admiration for the Marine Corps. If the Semper Fi guys call and you need to cut the cake, I will certainly be willing to cooperate.

Seriously, our congratulations to the U.S. Marine Corps on their birthday. We value them for what they have done in their most recent conflicts and their incredible history. They are truly Semper Fi. In the spirit of what I hope will be the comity of the day, the civility of

the day, we yield back our time in order to permit the vote.

I ask for the regular order.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, our colleague from Pennsylvania, Senator Specter, just gave an eloquent speech on why the Supreme Court should be televised and how it would provide greater openness and transparency were decisions being made in the public's eye. I think that argument was very interesting. But there is one institution that is absolutely on television already, and that is the Congress of the United States. Through C-SPAN, what goes on in this Chamber and often in the committee rooms goes out all over America. We get phone calls, in many instances, from the C-SPAN watchers. I think it is an outstanding tool.

Someone watching what is going on all day would wonder: What are they doing? We have kind of lost sight, given some of the amendments that were offered, of just what is the pending business on the floor of the Senate today. As the person who chairs the Appropriations Subcommittee on Commerce, Justice and Science, I would like to remind the American people watching, and my colleagues, what is the pending business.

The pending business is how should we best fund those important agencies at the Commerce Department that promote trade and scientific innovation; also the Justice Department, rendering impartial justice, enforcing the laws that are on the books; to important science agencies, such as the American space program. What the appropriations bill does is it determines what goes in the Federal checkbook to fund these programs.

I am very proud of the way we, in our subcommittee, have worked on a bipartisan basis to bring a bill to the Senate floor that we believe reflects national priorities. I have worked hand in hand with my ranking member, the Republican Senator from Alabama, Mr. Shelby, and we wrote good legislation.

What do we like about it? First of all, what we like about it is that we want to promote innovation and competition in our society. We are in a terrible economic mess. Our economy is rocking and rolling. The fact is, we still do not have jobs. What about these jobs? What do we do? I want to talk about the role of the Commerce Department in coming up with new ideas, making sure we have innovation from the government. Innovation is important because it is the new ideas that create the new products that create the new jobs.

I note the Presiding Officer is from the State of Ohio. There, as in my State, manufacturing has been very hard hit. Many of the traditional ways of life are not there. We have to look ahead to what is promoting innovation-friendly government. Right there in the Commerce Department is the Bureau of Industry and Security, which makes sure we are able to provide exports of our technology. We have the Patent and Trademark Office, which is guardian of our intellectual property around the world. It protects ideas and those who come up with inventions as private property, the hallmark of capitalism--the ability to own private

property and benefit from the fruits of your labor in an open and competitive marketplace. We would fund that.

When you come up with new products, you also have to have standards so a yardstick is the same in the United States as in any other country--or the metric system. What the National Institute of Standards does is it sets standards for products that will enable the private sector to compete among themselves and around the world. I am proud of them. They are located in Maryland, but even if they were located in Utah or Wyoming I would be proud of them because it is there that they set the standards which help set the pace for America to compete.

Much is said about our arms race, but one of the races we have been in is the race for America's future. One of the agencies that is the greatest inventor of technology has been the National Space Agency. We have all been thrilled to watch our astronauts go into space. Many of us, particularly this summer, were excited about the bold and courageous astronauts because they were able to retrofit Hubble with new batteries and a new camera so we could do the scientific work needed to send Hubble on its final journey. It is at the National Space Agency, though, that so much invention of new technology occurs.

As someone who has spoken out so much for women's health, and also the desire to prevent breast cancer, one of the things I am proud of is out of NASA's x-ray technology we have been able to develop other products for the civilian population, such as digital mammography.

A few months ago I broke my ankle and then wore a boot that looked like a space boot. It looked like a space boot because it maybe was-- well, not mine. I would love to wear a space boot worn by Sally Ride or one of the great women astronauts. But the fact is, it is because of the technology that was developed to protect our astronauts that we now know how to protect us on Earth. This is what we are talking about.

Should we fund these agencies? Should we be able to make public investments that lead to private sector jobs? While we are fighting over should we have this prisoner over at Gitmo or other kinds of provocative social questions, we have a duty to promote those agencies that promote private sector jobs.

The other area I am very proud of in this bill is our support of law enforcement. Yes, we support Federal law enforcement, our FBI, our Marshal Service, as well as our Bureau of Alcohol, Tobacco, Firearms and Explosives. But I am also proud that we support that thin blue line of local law enforcement. For many of our communities, mayors and county executives are stretched to the limit. Sometimes people who commit crimes are better armed and have the latest technology, more than our cops on the beat. Through a program called the Byrne grants they are able to apply for Federal funds to be able to modernize themselves.

We don't want to hold up the funding. We want this bill to go ahead. We want things to happen. That is what this bill is. We have worked hard. Senator Shelby and I held hearings, we held meetings, we met with local law enforcement.

We took the time to meet with people who have been victims, battered women. We fund the Violence Against Women Act. Do you know, since Joe Biden created that program, over 1 million people have called on the hotline; that we have protected over 1 million women from being abused and maybe even facing violence of such a degree that it threatened their lives?

This is not only about spending. These are about public investments that protect our communities and protect American jobs. I hope my colleagues will come and agree to complete discussion on their amendments so we can complete votes and bring this to a close so we can go to a conference with the House.

I note the Senator from Louisiana is on the Senate floor. I want to single her out, as they say in the colloquial: Do a shout-out. The Senator is well known for her work on adoption, and I salute her for that. Also, international adoption, making sure the laws are made and making sure, as people seek international adoption, there is not the exploitation of those children. We work with that in our bill. We also make sure we protect missing and exploited children in their own country.

You know, we see horrific, ghoulish, and grisly things done to young people who have been picked up. But thanks to the Adam Walsh Act, the Missing Children and Exploitation Act, we are stopping that. We have tough laws now against sexual predators and a way to keep them off the streets and to keep them registered. We have the money in the Federal checkbook to do that.

I really like this subcommittee because it does protect American jobs. It does protect American communities. It does protect the American people. I hope that today we can conclude our debate on the five pending amendments, move to a vote and try to get our country and our economy back again.

I yield the floor.

I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, as the chairman of the Commerce, Justice, Science Committee, I ask unanimous consent that all postcloture time be yielded back, except the 10 minutes specified for debate as noted in this agreement; that the Senate now resume the Coburn amendments Nos. 2631 and 2667, and that prior to the votes in relation to each amendment in the order listed, there be 2 minutes of debate, equally divided and controlled in the usual form; that upon the use or yielding back of time, the Senate proceed to vote in relation to the amendments; that upon the disposition of the Coburn amendments, the Senate resume consideration of the Graham amendment No. 2669, and that prior to a vote in relation to the amendment, there be 4 minutes of debate, equally divided and controlled between Senators Graham and Leahy or their designees; that upon the use or yielding back of time, the Senate proceed to vote in relation to the amendment; that upon disposition of the Graham amendment, the Senate then resume the Ensign amendment No. 2648, as modified; that there be 2 minutes of debate, equally divided and controlled in the usual form, prior to a vote in relation to the amendment; that upon disposition of the Ensign amendment, the Senate resume the Johanns amendment No. 2393; that the amendment be agreed to and the motion to reconsider be laid upon the table, with no amendments in order to the aforementioned amendments; that no further amendments be in order; that the substitute amendment, as amended, be agreed to, the bill, as amended, be read a third time, and the Senate then proceed to vote on passage of the bill; that upon passage, the Senate insist on its amendment, request a conference with the House on the disagreeing votes of the two Houses, and that the Chair be authorized to appoint conferees, with the subcommittee plus Senators Byrd and Cochran appointed as conferees; that if a point of order is raised and sustained against the substitute amendment, then it be in order for a new substitute to be offered, minus the offending provisions but including any amendments previously agreed to; that the new substitute be considered and agreed to, no further amendments be in order, the bill, as amended, be read a third time, with the provisions of this agreement after adoption of the original substitute amendment remaining in effect; and that the cloture motion on the bill be withdrawn; and that the order commence after the remarks of Senator Chambliss.

Mr. President, as in executive session, I ask unanimous consent that upon disposition of H.R. 2847, the Senate proceed to executive session and immediately proceed to vote on confirmation of the nomination of Calendar No. 462, and that upon confirmation, the motion to reconsider be considered made and laid upon the table; that no further motions be in order, the President be immediately notified of the Senate's action, and the Senate then resume legislative session.

Mr. President, what is the pending amendment?

Mr. President, I vigorously and unabashedly oppose the Coburn amendment. It eliminates not only the dollars from the science program at the National Science Foundation, it specifically targets the $9 million cut in the area of funding for research by political scientists.

The very first American woman to win the Nobel Prize for economics ever has received 28 awards from the National Science Foundation, the science program offered to political science professors. It shows what groundbreaking work can be done.

This amendment is an attack on science. It is an attack on academia. We need full funding to keep America innovative, and I urge my colleagues to vote no on this amendment.

Mr. President, I yield back the remainder of our time, and I ask for the yeas and nays.

Mr. President, I share the concerns of the Senator from Oklahoma about oversight at the Department of Commerce. That is why the bill already funds the inspector general at $25.8 million, the same as the President's request. There is an additional $6 million furnished through the stimulus.

This amendment does cut the Hoover Building and it would only delay the renovations to meet basic health and safety standards. I oppose the amendment. The amendment would cause the CJS bill to exceed its allocation. Therefore, I make a point of order that the amendment violates section 302(f) of the Congressional Budget Act of 1974.

Mr. President, I support every comment made by my ranking member. I believe this amendment will cause the CJS bill to exceed its allocation, therefore I make a point of order the amendment violates section 302(f) of the Congressional Budget Act of 1974.

Mr. President, I ask unanimous consent that it be in order to make a point of order against the remaining amendments.

I make a point of order en bloc that amendments Nos. 2644, 2627, 2646, 2625, 2642, and 2632 are either not germane postcloture or violate rule XVI.

Mr. President, not withstanding the order regarding the passage of H.R. 2847, I now ask unanimous consent that amendment No. 2647, as modified, be agreed to and the motion to reconsider be laid upon the table.

Yes, I am aware of these two important initiatives I know from the COMPETES Act, which I was integrally involved in with the Senator, that one of the more important policy questions is what effect research and development has on gross domestic product. There are many estimates that it is substantial and it is an important question for Congress to consider.

Yes, I am aware of the initiative and it is important we understand how the recent prices increases for the energy we use affects the overall gross domestic product.

I thank Senator Bingaman. I will work with the House and Senate conferees to give these two important initiatives the consideration they deserve.

Mr. President, I appreciate Senator Levin allowing me to speak now. I know we are going back and forth. I appreciate that.

To my friend, Senator Durbin, it is my honest desire that as we move forward with what to do with Guantanamo Bay, we can find some bipartisanship and close the facility. I am one of the few Republicans who expressed that thought, simply because I have listened enough to our commanders to know--General Petreaus, Admiral Mullen, and others-- that Guantanamo Bay has become a symbol for recruitment and propaganda usage against American forces in the war on terror.

It is probably the best run jail in the world right now, to those of us who have been down there. To the ground forces, I wish to acknowledge your patriotism and your service. It is a tough place to do duty because there are some pretty tough characters down there.

At the end of the day, I have tried to be helpful where I could, and I will tell you in a little detail why I am offering this amendment. But my hope was that when President Obama was elected, we could find a way to reform Guantanamo Bay policy, detainee policy, because I have been a military lawyer for 25 years. I do understand detainee policy affects the war effort. If we mess it up, if we abuse detainees, we can turn populations against us that will be helpful in winning the war.

One of the great things that happened in World War II is that we had over 400,000 German prisoners, Japanese prisoners housed in the United States. We took 40,000 hard-core Nazis from the British and put them in American military jails in the United States. So this idea that we can't find a place for 200 detainees in America, I don't agree with. We have done that before. These people are not 10 feet tall. They are definitely dangerous, but as a nation I believe we could start over.

By closing Guantanamo Bay in a logical, rational way, we would be improving our ability to effect the outcome of the war in the Mideast because we would be taking a tool away from the enemy.

President Obama and Senator McCain both, when they were candidates, agreed with the idea of closing Guantanamo Bay and reforming interrogation policy.

To most Americans, it is kind of: Why are we worried about what we do with these guys, because they would cut our heads off. You are absolutely right. It is not lost upon me or any other military member out there that the enemy we are dealing with knows no boundaries and they are barbarians and brutal.

The question is not about them but about us. The fact that we are a civilized people is not a liability, it is an asset. So when you capture a member of al-Qaida, I have always believed it becomes about us, not them. We need interrogation techniques that will allow us to get good intelligence and make the country safe. We need to understand we are at war, and the people we are dealing with are some of the hardest, meanest people known since the Nazis.

But if you try to say, in the same breath, that anything goes to get that information, it will come back to haunt you. So some of the interrogation techniques we have used that come from the Inquisition got us some information, but I can assure you it has created a problem. Ask anybody in the Mideast who has to deal with America. They will tell you this has been a problem. You don't need to do that to protect this country. You can have interrogation techniques that get you good information but also adhere to all your laws.

As to the trials, some people wonder: Why do we care about this? They wouldn't give us a trial. You are absolutely right. The fact that our country will give the worst terrorist in the world a trial with a defense attorney, for free; a judge who is going to base his decision on facts and law and not prejudice; a jury, where the press can show up and watch the trial; and the ability to appeal the result, makes us stronger, not weaker. So count me in for starting over with Guantanamo Bay, with a new legal process that recognizes we have had abuses in the past and we are going to chart a new course.

Regarding the Military Commission Act that just passed the Congress, I wish to say publicly that Senator Levin was a great partner to work with. The military commission system we have in place today has been reformed. I think it is a model justice system that I will put up against any in the world, including the International Criminal Court at the Hague, in terms of due process rights for detainees. It also recognizes we are at war. This military commission system, while transparent, with the ability to appeal all verdicts to the civilian system, has safeguards built in it to recognize we are at war and how you handle evidence and access the evidence and intelligence sources are built into that military system that are not built into civilian courts.

Since this country was founded, we have historically used military commissions as a venue to try suspected war criminals caught on battlefields. Why have I brought forth this amendment? I have been told by too many people, with reliable access, that the administration is planning on trying Khalid Shaikh Mohammed--the mastermind of 9/11, the perpetrator of the attacks against our country in Washington, Pennsylvania, and New York--in Federal court in the lower district of Manhattan. If that is true, you have lost me as a partner.

Why do I say that? It would be the biggest mistake we could possibly make, in my view, since 9/11. We would be giving constitutional rights to the mastermind of 9/11, as if he were any average, everyday criminal American citizen. We would be basically saying to the mastermind of 9/ 11, and to the world at large, that 9/11 was a criminal act, not an act of war.

I do believe in prosecutorial discretion and executive branch discretion. I introduced this amendment reluctantly but with all the passion and persuasion I can muster to tell my colleagues: Act now, so we will get this right later. Congress said we are not going to fund the closing of Gitmo. Well, is Congress meddling in the ability of the Commander in Chief to run a military jail? Hell, yes, because we don't know what the plan is. We have an independent duty as Members of Congress to make sure there is balance. This Nation is at war. It is OK for us to speak up. As a matter of fact, it has been too much passing-- too many passes during the Bush administration, where Congress sort of sat back and watched things happen. Don't watch this happen. Get on the record now, before it is too late, to tell the President we are not going to sit by as a body and watch the mastermind of 9/11 go into civilian court and criminalize this war. If he goes to Federal court, here is what awaits: a chaos zoo trial.

Yes, we have taken people into Federal court before for acts of terrorism. We took the Blind Sheik--the first guy to try to blow up the World Trade Center--and put him in civilian court. We treated these people as common criminals. What a mistake we made. What if we had treated them as warriors rather than a guy who robbed a liquor store? Where would we have been in 2001 if we had the foresight in the 1990s to recognize that we are at war and these people are not some foreign criminal cartel; they are warriors bent on our destruction who have been planning for

years to attack this country and are planning, as I speak, to attack us again?

We are not fighting crime. We are fighting a war. The war is not over. What happened in the Blind Sheik trial? Because it was a civilian court, built around trying common criminals, the court didn't have the protections military commissions will have to protect this Nation's secrets and classified information. As a result of that trial, the unindicted coconspirator list was provided to the defense as part of discovery in a Federal civilian criminal court. That unindicted coconspirator list was an intelligence coup for the enemy. It went from the defense counsel, to the defendant, to the Mideast. Al-Qaida was able to understand, from that trial, whom we were looking at and whom we had our eye on.

During the 1990s, we tried to treat these terrorist warriors as just some other form of crime. It was a mistake. Don't repeat it. If you take Khalid Shaikh Mohammed, the mastermind of 9/11, and put him in Federal civilian court, you will have learned nothing from the 1990s. You will have sent the wrong signal to the terrorists and to our own people.

Judge Mukasey, who presided over the Blind Sheik trial, wrote an op- ed piece about how big a mistake it would be to put the 9/11 coconspirators into Federal court. He went into great detail about the problems you would have trying these people in a civilian court. He became our Attorney General. So if you don't listen to me, listen to the judge who presided over the trial in the 1990s.

I don't know what they are going to do in the Obama administration. If I believed they were going to do something other than take Khalid Shaikh Mohammed to Federal court in New York, I would not introduce this amendment. I know this is not a cavalier thing to do. I have taken some grief for trying to help the President form new policies with Guantanamo Bay and reject the arguments made by some of my dear friends that these people are too dangerous to bring to the United States. We can find a way to bring them to the United States; we just have to be smart about it.

To our military men and women who will be administering the commission, my biggest fear has always been that the military commission system will become a second-class justice system. Nothing could be further from the truth. The men and women who administer justice in the military commission system are the same judge advocates and jurors who administer justice to our own troops. The Judge Advocate General of the Navy said the new military commission system is such that he would not hesitate to have one of our own tried in it.

We will gain nothing, in terms of improving our image, by sending the mastermind of 9/11 to a New York civilian court, giving him the same constitutional rights as anybody listening to me in America who is a citizen. The military commission system will be transparent. He will have his say in court. He will have the ability to appeal a conviction to our civilian judges. He will be defended by a military lawyer--or private attorney, if he wants to be. He will be presumed innocent until found guilty. It will be required by the ``beyond a reasonable doubt'' standard for him to be found guilty of anything.

For those who are wondering about military commissions, I can tell you the bill we have produced I will put up against any system in the world. To those who think it is no big deal to send Khalid Shaikh Mohammed to Federal court, I could not disagree with you more. What you will have done is set in motion the dynamic that led to criminalizing the war in the 1990s. You will have lost focus, yet again. You will have been lured into the sense that we are not at war, that these are just a bunch of bad people committing crimes. The day we take the mastermind of 9/11 and put him in Federal court, who the hell are you going to try in the military commission? How can you tell that detainee you are an enemy combatant, you are a bad guy? You are at war, but the guy who planned the whole thing is just a common criminal. What a mistake we would make.

It is imperative this Nation have a legal system that recognizes we are at war and that we have rules to protect this country's national security balance against the interests and the rights of the accused detainee. The military commission forum has created that balance. It is a system built around war, a system built around the rules of military law, a system that recognizes the difference between a common criminal and a warrior, a system that understands military intelligence is different than common evidence. If we do not use that system for the guy who planned 9/11, we will all regret it.

My amendment is limited in scope. It is a chance for you, as a Member of the Senate, to speak up about what you would like to see happen as this Nation moves forward and our desire to correct past mistakes and defend this Nation, which is still at war this very day. It is a chance for you to have a say, on behalf of your constituents, as to how they would like to see this Nation defend itself.

I argue that most Americans--not just the 9/11 families--would be very concerned to learn that the man who planned the attacks that killed 3,000 of our fellow citizens--who would do it again tomorrow--is going to be treated the same as any other criminal. No good will come from that. You will have compromised the military commission system beyond repair. You will have adopted the law enforcement model that failed us before, and we will not be a better people.

I, along with Senator Levin, was at Guantanamo Bay the day Khalid Shaikh Mohammed appeared before the Combat Status Review Tribunal. We were in the next room. We listened on a monitor. You could see him and could hear the chains rattle next door when he went through great detail about 9/11 and all the other acts of terrorism he planned against our country.

I never will forget when he told the military judge that he was a high-ranking commander in the al-Qaida military organization and he appreciated being referred to as a military commander. Some would say: You don't want to elevate this guy. What I would say is you want to understand who he is. If you think he is a common criminal, no different than any other person who wants to hurt people, you have made a mistake.

Khalid Shaikh Mohammed is bent on our destruction. He did not attack us for financial gain. He attacked us because he hates us. He is every bit as dangerous as the Nazis. These people we are fighting are very dangerous people. I am insistent they get a trial consistent with our values, that they do not get railroaded, that they get a chance to defend themselves. The media will see how the trial unfolds and you can see most of it, if not all of it. But I am also insistent that we not take our eye off the ball. It has been a long time since we have been attacked. For a lot of people--those who were on the front lines of 9/ 11--they relive it every night. It replays itself over and over every night of their lives.

For the rest of us, please do not lose sight of the fact that this country is engaged in an armed conflict with an enemy that knows no boundaries, has no allegiance to anything beyond their radical religion, and is conspiring to attack us as I speak.

When we try them, we need to understand that the trial itself is part of the war effort. How we do the trial can make us safer or it can make us weaker. If we criminalize this war, it would take the man who planned the attacks of 9/11 and put him in civilian court. It is going to be impossible with a straight face to take somebody under him and put him in a military court. And the day you put him back in civilian court, you are going to create the problems Judge Mukasey warned us against. You are going to have evidence compromised and you are going to regret it.

I hope to continue to work with the administration to find a way to close Guantanamo Bay, to create a transparent legal system that will allow every detainee their day in court, due process rights they deserve based on our law, not based on what they have done but based on who we are as a people.

The 20th hijacker said this in Federal court--the victims were allowed to testify about the impact of 9/11. They had a U.S. Navy officer talking about being at the Pentagon and the impact on her

life and on her friends. During the testimony, the officer started to cry. Here is what the defendant said, Moussaoui, the 20th hijacker:

I think it was disgusting for a military person to pretend

that they should not be killed as an act of war. She is

military.

It was a Navy female officer.

She should expect that the people who are at war with her

will try to kill her.

This is the 20th hijacker in civilian court:

I will never, I will never cry because an American bombed

my camp.

If you have any doubt that we are at war, the one thing you ought to be certain of, they have no doubt that they are at war with us.

The one thing the men and women who go off to fight this war should expect of their government and of their Congress is to watch their back the best we can. We would be doing those men and women a great disservice if we put the mastermind of 9/11, who killed the friends of this Navy officer, in a civilian court that could lead to compromising events that would make their job harder. We would be doing them a disservice to act on our end as if we are not at war.

Mr. President, I say to my colleagues, they have a chance to speak. They have a chance to be on the record for their constituents to send a signal that needs to be sent before it is too late. Here is what I ask them to say with their vote: I believe we are at war and that the legal system we are going to use to try people who attacked this country and killed 3,000 American citizens should be a military legal system, consistent with us being at war. I will not, with my vote, go back to the law enforcement model that jeopardized our national security back in the nineties. I will insist that these detainees have a full and fair trial and that they be treated appropriately. But I will not, with my vote, take the mastermind of 9/11, the man who planned the attacks, who would do it tomorrow, and give him the same constitutional rights as an average, everyday American in a legal system that is not built around being at war.

If they will say that, we will get a good outcome. If they equivocate, we are slowly but surely going to create a legal hodgepodge that will come back to haunt us.

I yield the floor.

Colleagues, we are about to take a vote. It is a tough vote, and I regret we are having to do this, but at the end of the day, I have a view that this country is at war. I think most of you share it. Our civilian court system serves us well, but we have had a long history of having military commission trials when the Nation is at war. The military commission bill which this Congress wrote is reformed. It is new, it is transparent, and it is something I am proud of.

This amendment says that the six coconspirators who planned 9/11-- Khalid Shaikh Mohammed at the top of the list--will not be tried in Federal court because the day you do that, you will criminalize this war.

In the first attack on the World Trade Center, the Blind Sheik was tried in Federal court, and the unindicted coconspirators list wound up in the hands of al-Qaida.

Military commissions are designed to administer justice in a fair and transparent way, but they know and understand we are at war. Our civilian courts are not designed to deal with war criminals; the military system is.

Khalid Shaikh Mohammed, the mastermind of 9/11, didn't rob a liquor store; he didn't commit a crime under domestic criminal law; he took this Nation to war and he killed 3,000 of our citizens. He needs to have justice rendered in the system that recognizes we are at war.

Please support this idea of not criminalizing the war the second time around.

To my dear friend, this is the biggest issue of the day: Are they criminals? Are they warriors? Does it matter? These people are not criminals, they are warriors, and they need to be dealt with in a legal system that recognizes that.

And to the 214 9/11 families who support my amendment, I understand that the people who killed your family members are at war with us. I hope the Senate will understand that so we don't have another.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent to speak as in morning business for up to 20 minutes.

Mr. President, I rise today because I am deeply concerned that just over 1 year since the collapse of Lehman Brothers, a failure that helped send us to the brink of depression, Wall Street is essentially unchanged. Congress and the SEC have not enacted any reform, and the American people remain at risk of another financial debacle--not just because the same practices that led to the crisis 14 months ago are continuing but from new practices that are leading to new problems and new systemic risks.

Last year, the financial world almost came to an end. Yet most of Wall Street then believed that no government review or additional regulation was necessary--right up until the moment government had to step in and save it.

We had been assured that the system was sound. We were assured that a host of checks and balances were in place that would suffice. We were assured that companies have to report their financial holdings with full disclosure and transparency. We were assured that accountants have to verify those assets. We were assured that due diligence is conducted on every deal and transaction. We were assured that boards of directors have a fiduciary duty to undertake prudent risk management. We were sure that management wanted their companies to thrive

over the long term. Most important, we were assured that regulatory bodies and law enforcement agencies are in place to police the system. But those safeguards did not prevent the disaster.

In the past 10 years or more, one of the most important safeguards-- the regulators--had simply given up on the importance of regulation. We believed and they believed that markets could police themselves, they would self-regulate, and so in effect we pulled the regulators off the field.

We now know the confluence of events that led to the disaster, and there is blame enough to go around. We failed to regulate the derivatives market. Government-backed agencies, such as Fannie Mae and Freddie Mac, pushed to make housing available for greater numbers of people; unscrupulous mortgage brokers pushed subprime mortgages at every opportunity; and investment bankers pooled and securitized those subprime mortgages by the trillions of dollars and sold them like hotcakes. Rating agencies, left unmonitored by the SEC, incredibly stamped these pools with AAA ratings.

The SEC, which changed the capital-to-leverage ratio level for investment banks from 30-and-50-to-1, allowed these banks to buy huge pools of these soon-to-be toxic assets, and investment banks wrote credit default swaps and then hedged those risks without any central clearinghouse, without any understanding of who was writing how much or what it all meant--all of this, incredible to believe, without any regulation or oversight.

This chart conveys that banks were involved in high-risk return investments that were largely unregulated. Then, crash--the housing bubble burst and a disaster of truly monumental proportions struck. Americans lost $20 trillion in housing and equity value during the ensuing financial meltdown. The economy lurched into free fall, and the GDP shrunk by a staggering percentage not seen since the 1950s.

What happened next? The American taxpayer, the deep-pocket lender of last resort, had to ride to the rescue. We can barely even count the trillions of dollars in taxpayer money that have gone into bailing out the banks, AIG, and a number of other financial institutions. That is not including the billions of taxpayer dollars we had to spend to stimulate the economy.

We must never let this happen again. Yet here we are 1 year later, with no immediate crisis at hand, and we are falling back into complacency. The credit default swap market remains unregulated. The credit rating agencies have not yet been reformed. The banks are back to their old habits--paying out billions of dollars in bonuses for employees who are still engaged in high-risk, high-reward practices.

What is the great lesson we should have learned from the financial disaster of 2008? When markets develop rapidly and change dramatically, when they are not regulated, and when they are not fully transparent, it can lead to financial disaster. That is what happened in the credit default swap market--rapid and dramatic change in the market, no regulation, and opaqueness, which equaled disaster. This must never happen again.

I look forward to working with my colleagues to regulate the derivatives markets, to ensure that credit default swaps are traded on an exchange or at least cleared through a central clearinghouse with appropriate safeguards enforced, and to enact meaningful financial regulatory reforms.

At the same time, we need to be looking carefully to see if these three deadly ingredients--rapid technological development, lack of transparency, and a lack of regulation--are appearing again in other markets. There is no question in my mind that in today's stock markets, those three disastrous ingredients do exist.

Due to rapid technological advances in computerized trading, stock markets have changed dramatically in recent years. They have become so highly fragmented that they are opaque--beyond the scope of effective surveillance--and our regulators have failed to keep pace.

The facts speak for themselves. We have gone from an era dominated by a duopoly of the New York Stock Exchange and Nasdaq to a highly fragmented market of more than 60 trading centers.

Dark pools, which allow confidential trading away from the public eye, have flourished, growing from 1.5 percent to 12 percent of market trades in under 5 years.

Competition for orders is intense and increasingly problematic. Flash orders, liquidity rebates, direct access granted to hedge funds by the exchanges, dark pools, indications of interest, and payment for order flow are each a consequence of these 60 centers all competing for market share.

Moreover, in just a few short years, high-frequency trading, which feeds everywhere on small price differences in the many fragmented trading venues, has skyrocketed from 30 percent to 70 percent of the daily volume.

Indeed, the chief executive of one of the country's biggest block trading dark pools was quoted 2 weeks ago as saying that the amount of money devoted to high-frequency trading could ``quintuple between this year and next.''

Let's put the last chart back up for a second. Again, we have learned that if you have rapid and dramatic change, opaqueness, and no effective regulation, which is exactly what exists in the high frequency trading markets, we have a disaster. We should look at this in terms of high-frequency trading. We have no effective regulation in these markets.

Last week, Rick Ketchum, the chairman and CEO of the Financial Industry Regulatory Authority--the self-regulatory body governing broker-dealers--gave a very thoughtful and candid speech, which I applaud. In it, Mr. Ketchum admitted that we have inadequate regulatory market surveillance.

His candor was refreshing but also ominous:

There is much more to be done in the areas of front-

running, manipulation, abusive short selling, and just having

a better understanding of who is moving the markets and why.

Mr. Ketchum went on to say:

[T]here are impediments to regulatory effectiveness that

are not terribly well understood and potentially damaging to

the integrity of the markets . . . The decline of the primary

market concept, where there was a single price discovery

market whose on-site regulator saw 90-plus percent of the

trading activity, has obviously become a reality. In its

place are now two or three or maybe four regulators all

looking at an incomplete picture of the market--

And this is important--

and knowing full well that this fractured approach does not

work.

At the same time that we have no effective regulatory surveillance, we have also learned about potential manipulation by high-frequency traders.

Last week, the Senate Banking Subcommittee for Securities, Insurance, and Investment held a hearing on a wide range of important market structure issues. At the hearing, Mr. James Brigagliano, co-acting director of the Division of Trading and Markets, testified that the Commission intends to do a ``deep dive'' into high-frequency trading issues due to concerns that some high-frequency programs may enable possible front-running and manipulation.

Mr. Brigagliano's testimony about his concerns was troubling:

. . . if there are traders taking position and then

generating momentum through high frequency trading that would

benefit those positions, that could be manipulation which

would concern us. If there was momentum trading designed--or

that actually exacerbated intra-day volatility--that might

concern us because it could cause investors to get a worse

price. And the other item I mentioned was if there were

liquidity detection strategies that enabled high frequency

traders to front-run pension funds and mutual funds, that

also would concern us.

Reinforcing the case for quick action, several panelists acknowledged that it is a daily occurrence for dark pools to exclude certain possible high-frequency manipulators. For example, Robert Gasser, president and CEO of Investment Technology Group, asserted that surveillance is a ``big challenge'' and that improving market surveillance must be a regulatory priority.

He said:

I can tell you that there are some frictional trades going

on out there that clearly look as if they are testing the

boundaries of liquidity provision versus market manipulation.

But none of the panelists, when asked, felt responsible to report any of their suspicions of manipulative activity to the SEC. That is up to the regulators and their surveillance to stop, they believe.

Finally, at the end of the hearing, Subcommittee Chairman Reed asked about the reported arrest of a Goldman Sachs employee who allegedly had stolen code from Goldman used for their high-frequency trading programs.

A Federal prosecutor, arguing that the judge should set a high bail, said he had been told that with this software, there was the danger that a knowledgeable person could manipulate the markets in unfair ways.

The SEC has said it intends to issue a concept release to launch a study of high-frequency trading. According to news reports, this will happen next year. I do not believe next year is soon enough. We need the SEC to begin its study immediately. Where is the sense of urgency?

Our stock markets are also opaque. Again, I refer to Chairman Ketchum's speech:

There are impediments to regulatory effectiveness that are

not terribly well understood and potentially damaging to the

integrity of the markets.

He went on to say:

We need more information on the entities that move

markets--the high frequency traders and hedge funds that are

not registered. Right now, we are looking through a

translucent veil, and only seeing the registered firms, and

that gives us an incomplete--if not inaccurate--picture of

the markets.

Senator Schumer echoed this theme at last week's hearing. He said:

Market surveillance should be consolidated across all

trading venues to eliminate the information gaps and

coordination problems that make surveillance across all the

markets virtually impossible today.

Let me repeat: `` . . . market surveillance across all the markets virtually impossible today.'' I totally agree with that, and none of the industry witnesses disagreed with Senator Schumer. That is why the SEC must not let months go by without taking meaningful action. We need the Commission to report now on what it should be doing sooner to discover and stop any such high-frequency manipulation.

Where is the sense of urgency?

We must also act urgently because high-frequency trading poses a systemic risk. Both industry experts and SEC Commissioners have recognized this threat. One industry expert has warned about high- frequency malfunctions:

The next LongTerm Capital meltdown would happen--

And get this--

in a five-minute time period . . .

``The next LongTerm Capital meltdown would happen in a five-minute time period.''

At 1,000 shares per order and an average price of $20 per

share, $2.4 billion of improper trades could be executed in

[a] short timeframe.

This is a real problem. We have unregulated entities--hedge funds-- using high-frequency trading programs, interacting directly with the exchanges.

As Chairman Reed said at last week's hearing, nothing requires that these people even be located within the United States. Known as ``sponsored access,'' hedge funds use the name of a broker-dealer to gain direct trading access to the exchange but do not have to comply with any of the broker-dealer rules or risk checks.

SEC Commissioner Elisse Walter has recognized this threat:

[Sponsored access] presents a variety of unique risks and

concerns, particularly when trading firms have unfiltered

access to the markets. These risks could affect several

market participants and potentially threaten the stability of

the markets.

Let me repeat that:

These risks could affect several marketing participants and

potentially threaten the stability of the markets.

This is from a member of the SEC. Even those on Wall Street responsible for overseeing their firms' high-frequency programs are not up to speed on the risks involved, according to a recent study conducted by 7city Learning. In a survey of quantitative analysts who design and implement high-frequency trading algorithms, two-thirds asserted their supervisors ``do not understand the work they do.''

And though the quants and risk managers played a central role exacerbating last year's financial crisis, 86 percent of those surveyed indicated their supervisor's ``level of understanding of the job of a quant is the same or worse than it was a year ago,'' and 70 percent said the same thing about their institutions as a whole.

I agree with the market expert and 7city director Paul Wilmott who said:

These numbers are alarming. They indicate that even with

the events of the past year, financial institutions are still

not taking the importance of financial education seriously.

Let me repeat that.

. . . They indicate that even with the events of the past

year, financial institutions are still not taking the

importance of financial education seriously.

Where is the urgency? Time is of the essence. We must act now.

I ask unanimous consent that the Senator from Louisiana be recognized for 3 minutes and then I follow with the 30 minutes I had allotted.

Mr. President, I am going to spend about 20 minutes talking about amendments I have that are germane and we will be voting on. But they are small amendments. There is nothing big here. They are amendments that are designed to make a point.

We ran, by a factor of two, the largest deficit in the history of this country. Of the money we spent in the 2009 fiscal year, we borrowed 43 percent of it: 43 cents out of every dollar we expended, 43 cents we borrowed from our children and our grandchildren.

We have before us a bill, the Commerce-Justice-Science bill, that will go up almost 13 percent, 12.6 percent this year, on the back of a 15.5-percent increase last year. The latest inflation numbers are deflation, a minus four-tenths of 1 percent.

The question America has to ask itself, after we pass $800 billion of stimulus spending for which this agency got billions which are not reflected in any of these increases, is how is it that when we can spend $1.4 trillion we do not have, we can come to the floor and continue to have double-digit increases in almost everything we pass?

It does not take a lot of math to figure out that if we keep doing what we are doing, in 4\1/2\ years the size of the Federal Government doubles. If you do this for another 4 years, we will double the size of the Federal Government. So there is absolutely no fiscal restraint within the appropriations bills that are going through this body with the exception of one, and that is the Defense Department, probably the one that is most important to us in terms of our national security, in terms of where there is no question we have waste but where we need to make sure that we are prepared for the challenges that face us.

If you look at what we passed through the body, and you look at 2008, 2009, you go 10, 9.9, 9.4, 13.0, 13.3, 14.1, 15.7--that was last year-- and now we are going to go 5.7, 7.2, 1.4, 12.6, 22.5, 16.2, and 12.6.

Not only are we on an unsustainable course as far as mandatory programs such as Social Security and Medicare--by the way, we have now borrowed from Social Security, stolen from Social Security, $2.4 trillion which we do not even recognize we owe. We do not put it on our balance sheet. We have stolen $758 billion from the Medicare trust fund, which we do not even recognize. So we borrowed $3 trillion from funds that were supposed to be there for our seniors and our retirees which our children--not us; our children and our grandchildren--will have to repay.

I saw this the other day on the Internet. It speaks a million words to me. Here is a little girl, a toddler with a pacifier in her mouth. She has got a sign hanging around her neck. She says: I am already $38,375 in debt and I only own a doll house.

The problem with that is that she way understates what she is in debt for. That is just the recognized external debt. That does not count what we borrowed internally from our grandchildren. It does not count the unfunded liabilities she through her lifetime will never get any benefit from but will pay because we have stolen the benefit for us, without being good stewards of the money that has been given to us.

If you go through this and you look at it, by the time she is 40, she will be responsible for the $1,119,000 worth of debt we have accumulated for payments for Medicare, Social Security, and Medicaid that she got absolutely zero benefit from.

Then if you think about a $1 million debt for a little girl like this and what it costs, what the interest is to fund that debt, if you just said 6 percent, she has got to make $60,000 first to pay the interest on that debt before she pays any taxes, her share of the taxes, and before she has the capability to have a home and have children and have a college education, own a car. We are absolutely, with bills such as this, strangling her. We are strangling her.

I am reminded what one of our Founders said, and it is so important. I love the Senator from Maryland. She said we had plenty of money in the checkbook to do this. We do not have plenty of money in the checkbook to do this. What we have is an unlimited credit card that we keep putting into the machine and saying, we will take the money and our kids will pay later. That is what we are doing.

Thomas Jefferson said, ``I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.''

When we are seeing 12.6 and 15 percent increases in the nonmandatory side, the non-Social Security, the non-Medicare, the non-Medicaid side of the budget, we have fallen into the trap Thomas Jefferson was worried about.

I know my colleagues are sick of me talking about this. But you know what, the American people are not sick of us talking about it. They get it. They realize that we refuse to make hard choices. Every one of them is making hard choices today with their families about their future based on their income. Yet we have the gall to bring to the floor double-digit spending at a time when people, 10 percent of Americans, are out of work, seeking work, another 5 percent have given up, and we are saying, that is fine if we have a 12-percent increase. It is fine. No problem. There is plenty of money in the checking account.

There is no money in the checking account. We are perilously close to having our foreign policy dictated to us by those who own our bonds, people outside of this country. The time to start changing that is now.

I have two little amendments, and one is very instructive. The political science community is hot and bothered because I would dare to say that maybe in a time of $1.4 trillion deficits, maybe at a time when we have 10 percent unemployment, maybe at a time when we are at the worst financial condition we have ever been in our country's history, maybe we ought not spend money asking the questions why politicians give vague answers, or how we can do tele-townhall meetings and raise our numbers. Maybe we ought not to spend this money on those kinds of things right now.

You see, it is instructive because those who are getting from the Federal Government now do not care about their grandchildren. What they want is what they are getting now. Give me now; it doesn't matter what happens to the rest of the generations that follow us.

So we have the political science community all in an uproar, not because I am against the study of political science but because I think now is not the time to spend money on that. Now is the time to spend money we absolutely have to spend, on things which are absolute necessities, as every family in America is making those decisions today. We do not have the courage to do it because it offends individual interest groups that are getting money from the Federal Government for a priority that is much less than the defense of this country, protecting people, securing the future, taking care of their health care, and making sure we have law and order.

You see, Alexander Tyler warned of this as he studied why republics fail. He said, ``All republics fail.'' They fail because when people learn they can vote themselves money from the public treasury, all of the other priorities go out the window. They become totally self- focused, self-centered on what is in it for them, with no long-range vision, only parochial vision, no vision for the country as a whole, but only what is good for them. It is called self-centeredness. It is called selfishness. And we perpetuate it in this body by bringing bills to the floor that are resistant to amendments that say: Maybe this is not a priority right now.

I would bet if you polled the American public and said, we are going to run another $1.4 trillion deficit this year, we probably would not want to spend $12 million telling politicians how to stay elected. We probably would not.

The fact is, it is major universities that get this small amount of money are in debt in excess of $50 billion.

They have plenty of money to fund this if they wanted, but they don't do it because they are getting from the person who is out of work. They are getting from the person who didn't get that job because the economy is on its back, because we are borrowing $1.4 trillion and competing with the capital that is required to create a job. It is just a small amount of money. It by itself won't make any difference. But supporting this amendment will build on confidence with the American people that says, he is right, we ought to be about priorities.

We ought to be about doing what is most important first and cutting out what is least important because the times call for discipline so we don't further hamstring the generation of children to which this young lady belongs. If you take $5 or $6 million and do it once, pretty soon, if you have done it 10 times, you have $60 million. You do it another 10 times, you have $600 million. Pretty soon, we have billions of dollars we are not spending because it is low priority and we are not borrowing it against our children. All of a sudden, the value of the dollar starts to rise. Confidence around the world in the dollar starts increasing. Competition for capital by the Federal Government competing in the private sector for the capital goes down. The cost of capital goes down. Credit flows and job opportunities are created. We don't connect that because we have always done it that way. We have a budget allocation. As long as we are under that budget allocation, everything is fine.

Where is the leadership in our country today that says we are going to model a leadership that we know the American people expect of us-- make hard choices, take the heat to eliminate things that are lower priority so that we can preserve the priority of this child and those of her generation? The fact is, that leadership is nonexistent. There is no reason for anyone to doubt why confidence in the Congress is at alltime lows. We are not realists. We are not listening.

The message out there, the No. 1 concern with fear isn't health care; it is economic. Am I going to have a job tomorrow? Am I going to be able to pay my bills? Will I be able to pay my mortgage? There are thousands of items in every appropriations bill just like this one, just like that amendment that we could eliminate tomorrow. It might create some small hardship but nothing compared to the hardship we are transferring to the following generation.

I have no doubt of the outcome of the votes on my amendments. I understand we are a resistant, recalcitrant body that refuses to recognize the will and direction of the American people in terms of commonsense priorities. I understand that. But what we must understand is, they are awake now, they are listening, and they are watching. It is time to respond to the desires of the American people and stop responding to the special interests of those who are getting money from the Federal Government that are low priority in terms of what really counts and really matters for our future.

I have one other amendment we will be voting on that transfers money to increase the money at the inspector general. It will not slow down the conversion of the Hoover Building at all. We have been told that. But it will help to make good government.

Part of our problem in government is about 10 percent of everything we do is pure waste, pure fraud, or pure duplication. If we are going to invest dollars in something, we ought to invest in the transparency and accountability mechanisms we have already set up.

I find myself encouraged by the attitude of the American people, yet discouraged by the attitude of my colleagues. Nobody wants to take and make the hard choices, the hard choices that say we are going to get heat if we start prioritizing. The easiest is to do nothing. The easiest is to continue to let the programs run whether they are high priority or not. That is easy. But America is having a rumble right now. The ground is shaking. The American people are paying attention. They are going to watch votes just like this one. Then we are going to be called to account as to, why won't you make priority choices, why won't you take the heat.

If there ought to be any political science study done, it is, why are Members of Congress such cowards? That is the thing we ought to study. We ought to study why we refuse to do the right thing because it puts our job at risk. We ought to be doing the right thing when it does put our job at risk and when it doesn't.

I will finish up by reminding us of what our oath is. Our oath never mentions our State. Our oath never mentions our special interest. Our oath never mentions our campaign contributors. What our oath mentions is that we are Senators of the United States--not from Oklahoma, not from Delaware, not from Maryland, not from Ohio. We are Senators of the United States; we just happen to be from those places. Our oath is to the long-term best interest of the country, never a parochial interest.

As you go through these bills, what you see are parochial interests trumping the long-term best interests of the country. That is not to demean the fine job the Senator from Maryland has done. She came in with the number that was given her. There is no question that she probably made some tough choices as she did that. But we haven't made enough. This kind of increase in this kind of bill is absurd. It is obscene. It is obscene at a time when the average family's income is declining, their ability to have the freedom to make choices, relaxed choices about what they do versus very stern choices about what is a necessity. We have not gotten the message.

I yield the floor.

Mr. President, this is a straightforward amendment that actually increases the funding for the IG. One of our weaknesses is waste, fraud, and abuse. According to GSA, this will not affect the renovations whatsoever at the Hoover Building. We are simply transferring funds.

I understand a point of order is going to be made against this amendment. But if my colleagues want control and have accurate work done by our IGs, we need to fund them appropriately, and this amendment is intended to do that.

Mr. President, I move to waive the applicable section of the Budget Act with respect to my amendment, and I ask for the yeas and nays.