Southwest Border Judgeship Expansion Act of 2011

Madam President, on June 27, 2010, President Obama made the following statement:

I hope some of those folks who are hollering about deficits

and debt will step up, because I'm calling their bluff.

I am stepping up. At the same time, I also want to call the President's bluff. I think we are at a serious point in time in our history, and we need to be realistic about what confronts us ahead of time.

The biggest bluff this year in the Congress was the 2012 budget presented by the President which did not take any of the recommendations from his own deficit commission--by the way, I was one of the Republicans who supported that--and instead locked in a 25.4- percent increase in spending over the last 2 years and made it permanent by calling it a freeze. It raises taxes in the outyears and dedicates a higher regulatory environment in the United States of America. None of that does anything to reduce the debt or the deficit. In fact, the President's budget actually makes it worse.

But it is fair to ask people to step up. The American people are asking us to step up. They want us to do what they have been doing in the last 3 years: sit around their kitchen table, reorganize their priorities, spend within their means, and reduce their debt and the deficit. The very least they should ask of their country is their country to do the same thing they have had to do. In large measure, we have been the contributor to the protracted nature of the current recession.

Now, everybody knows there are two ways to reduce the deficit in the short run and the debt in the long run. One way is to cut spending. But that is not the only way. Another way is to raise revenue and increase income. And that is not just by raising a tax, that is by improving business opportunity and the expansion of opportunity in America. There is a third way: by changing the processes by which we regulate and make decisions, by looking at reforms that in the outyears make a difference for all of us.

On the spending side, the spending cuts are going to be difficult. They are going to be modest compared to what our deficit really is. But they are going to send a signal to the world that we are finally going to get serious about our spending level, and the majority of the rest of the world already has--whether it is Great Britain or many of the other countries in the European Union.

So spending cuts are important. But spending cuts in and of themselves will not solve the entire problem. In fact, H.R. 1, in the House, which made reductions of $61 billion, was a modest start at a long-term process. But it sent us in the right direction, and it called the bluff the President was talking about by making real, significant proposals.

Secondly, in terms of raising revenue, we raise revenue by expanding opportunity, not by raising the rate of tax, but, as his deficit commission said, by lowering the rate of tax, doing away with deductions that are specialized and targeted in nature and giving business the encouragement to expand.

A funny thing happened to me on January 3 of this year in Atlanta, GA, right after the first of January. I went to the OK Cafe in downtown Buckhead, GA, for a breakfast. That is the gathering place for most Atlanta businesspeople on the north side of town. I was going to have a business meeting, and Steve Hennessy walked in, one of the largest automobile dealers in the United States. He happened to come up to me. He rushed toward me. He had his arms open. I thought I was going to get a good luck hug, a ``go to Washington and do a good job'' type speech. Instead, he put his finger right on my nose and said: Johnny, I just had to hire two compliance officers to comply with Dodd-Frank, and I lost a salesman. I am spending more money complying and less money producing.

That is one of the things this administration has done in tremendous quantity to put us in a very difficult situation. Every agency is promulgating rules and regulations at a rapid rate--regulations that to comply with cost new employees, more expense in operating a business, and less capital investment in what that business does.

It is very important that the President understand what happens; that is, regulation has consequences. Right now the regulatory volume of the United States being proposed by this administration is unsustainable. It is costly, and it increases the debt and the deficit of the United States of America. Quite frankly, it is a reach far beyond where government should go.

I am the first person to support occupational safety, the first person to support financial security, the first person to support transparency. I will always fight to see that our government is transparent and our rules are fair and our occupational safety is good. But to overreach, to go beyond our reach, is just wrong.

I will give you a couple of examples. Georgia is a large agricultural State. Yesterday I was with some cotton farmers who were bemoaning the fact of the most recent proposal to regulate agricultural dust. The EPA actually wants to regulate the dust created by a plow or a tractor or a truck on a dirt road on a farm, to say that the farmer must make sure that dust stays within the confines of his hedge row or his fence line--meaning we are going to try to control nature? Well, how is he going to do it? By hiring water trucks to follow behind his tractor to tamp down the dust? That is a reach too far.

To categorize milk as oil and to say farmers who run dairies have to have storage tanks for milk that are equivalent to storage tanks for petroleum, that is just crazy. It is a reach too far, and it makes the ability to do business tougher, the ability to make a profit more impossible, the amount of revenue produced less because it is less profitable, and it protracts our debt and our deficit problem.

So when the President talks about calling bluffs, I am willing to do it. I am willing to sit down and talk about the hard issues. In fact, I am willing to tell the story about how in certain measure myself and everybody else born after 1943 in America is an example of some of the things we need to do.

In 1983, I was 39 years old. Social Security sent out their annual report on the stability of the Social Security fund and said it was going broke; that if we did not do something we were going to run out of Social Security benefits in the early 2000s.

Well, that worried everybody. But Tip O'Neill, a great Speaker and a

Democrat, and Ronald Reagan got together at the White House, and they said: We have a problem.

Ronald Reagan said: Well, I don't want to raise the payroll tax.

Tip O'Neill said: I don't want to lower the amount of the benefit.

They looked at the actuary and said: What do we do? And he said: Recast the eligibility. Push it into the outyears, and that will get the system calibrated and back to actuarial soundness.

So they sat down with the actuaries at the table and said: I tell you what we are going to do. We are going to preserve everybody's Social Security eligibility today. But for those people born after 1943 and before 1947, we are pushing them out from age 65 to age 66. I was born in 1944. With a stroke of a pen, Ronald Reagan and Tip O'Neill changed my eligibility by 1 year. But they changed mine and millions of other Americans at the lead of the baby boomers, recalibrated the system, and put Social Security in actuarial soundness until 2050. Then they added 2-month increments for eligibility beyond, where eventually the law now takes Social Security eligibility to 67.

The President's commission recommended doing a similar thing over the next 50 to 75 years to push eligibility out so that benefits are not cut. Eligibility is changed but taxes do not go up. Eligibility is only changed, and when you become eligible to collect.

We already know that when Social Security was formed originally, most people did not live to the eligibility age of 65, and today most everybody does. Our lifespans are a longer time, and that is what has gotten the system actuarially unsound.

So I do not think it is right to say that nobody has answered the call on debt and deficit reduction. I do not think it is right to say that our bluff--we have not been bluffing anybody, neither did the President's debt and deficit commission. They called our hand by giving us consequential recommendations that work and in the long term make the future of America bright.

This problem is not a partisan problem; it is a bipartisan problem. The parties have contributed each to the other to cause the problem. We need to sit down together and begin solving it but not making it a political issue for the 2012 election with no solutions. Instead of bluffs, we ought to make constructive proposals. Instead of speeches on the floor that run time, we ought to be offering amendments on the floor that make a difference in terms of the debt and the deficit of the United States of America.

This is the greatest country on the face of this Earth, and it is because people trust it. But if we continue to look the other way as our debt and our deficit increases, that trust will dissipate and our interest rates will go up, the cost of goods and services will be inflated, and America will be in trouble.

I close by telling a brief story about a speech I made in Albany, GA, last year in November, when I was talking about the debt and the deficit, talking about some of the solutions we have talked about. I kept talking about a trillion this and trillion that, and saying one day soon we are going to owe $14 trillion.

A farmer at the back of the room at the rotary club raised his hand and said: Senator, I only went to Dougherty County High School. I don't know how much $1 trillion is. How much is it?

Well, I stumbled and I stammered, and finally, I said: Well, it is a lot. I could not think of how to quantify it.

I got home that night, and my wife said: What is wrong? I said: Well, I got stumped today.

She said: What was the question?

I said: The question was, how much is a trillion?

She said: What did you say?

I said: Well, it is a lot.

She said: Well, that was stupid.

I said: Well, give me a suggestion.

And she is always right.

She said: Well, why don't you just figure out how many years have to go by for 1 trillion seconds to pass. Then people will understand how much $1 trillion is.

So I did the math. I multiplied 60 seconds times 60 minutes times 24 hours times 365 days. I got on the calculator, and the calculator only went to 12 digits. So I had to go to the computer to get something that would go to 13 digits, which is a trillion. I divided that product into 1 trillion.

Do you know how many years have to pass for 1 trillion seconds to go by? Madam President, 31,709. And we owe $14 trillion. At a dollar a second, for over 400,000 years, we could solve our problem. That is a huge problem. But we have the benefit of the time value of money and the hope and opportunity of the greatest country on the face of this Earth.

So I call the President's bluff. Let's sit down together and talk about the tough things. Let's talk about the shared sacrifice. Let's talk about the benefit that comes from responsibility, frugality, and a commitment to the principles of our Founding Fathers and always remember the principle that less debt is better, and we should never be a country controlled by those we owe. Instead, we ought to be a country loved by those we protect.

Madam President, I yield the floor and suggest the absence of a quorum.

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

Madam President, I understand there are questions about what the tax strategies portion of the bill does and who it impacts. So I want to take a few minutes to address those questions.

In simple terms, a tax strategy is any method for reducing, avoiding, or deferring tax liability based upon the tax law--including interpretations and applications of the Internal Revenue Code, regulations, and related guidance.

A tax strategy can be as simple as a plan to buy tax-exempt bonds or invest in an IRA to reduce your tax liability or as complex as some sort of sale-leaseback tax shelter involving multiple domestic and foreign corporations and partnerships.

A tax strategy patent, which is what we are talking about in this bill, is just that--a patent on a particular tax strategy.

Madam President, I ask unanimous consent to have printed in the Record an article from a publication called the Tax Adviser. This article provides some examples of tax strategies that should not be patented.

Tax strategies are bad because they allow the tax law to be patented. A patent gives the holder the exclusive right to exclude others from using the patented invention. A tax strategy patent makes taxpayers choose between paying more than legally required in taxes or providing a windfall to a tax strategy patentholder by paying a royalty to comply with the tax law.

Tax strategy patents add another layer of complexity to the tax laws by requiring taxpayers or their advisers to conduct patent searches and exposing them to potential patent infringement lawsuits.

If a tax strategy patent is granted for a tax shelter designed to illegally evade taxes, the fact that a patent was granted may mislead unknowing taxpayers into believing the obvious: That the strategy is valid under the tax law when, in fact, it might not be.

Tax strategies are not like other inventions because everyone wants to pay less tax. Tax strategy patents are on the rise, which then means more and more legal tax strategies are unavailable or, obviously, more expensive for more and more taxpayers.

Madam President, I ask unanimous consent to have printed in the Record a letter. This letter, which is from a coalition of 15 consumer groups, including the umbrella group for public accountants, the Tax Justice Center, and the U.S. Public Interest Research Group, provides more information on why tax strategy patents are bad for taxpayers.

Section 14 of the bill, which has been before the Senate for the last week or more, prevents patenting of tax law. It provides that a strategy that relies on the tax law to reduce, to avoid, or to defer tax liability cannot be novel or nonobvious.

So a strategy for reducing, avoiding, or deferring tax liability will be deemed insufficient to differentiate a claimed invention from the prior art for purposes of evaluating an invention under section 102 or section 103 of the bill that is before us. This ensures that taxpayers and their advisers will then be guaranteed equal access to the tax laws, and that is obviously the fair way to do it. It is the commonsense way to do it.

So I wish to be clear that tax preparation software is not a tax strategy. Senior policy and examination staff from the Patent and Trademark Office agree that such software is not a tax strategy.

I also have letters from H&R Block, KPMG LLP, and Grant Thornton that state that the underlying language does not impact their software patents. Again, I ask unanimous consent to have these letters printed in the Record.

However, now, in order to allay the concerns of Intuit, makers of Turbo Tax, I have worked with Senator Baucus to make clear that tax preparation software such as Turbo Tax is not a tax strategy.

Financial management software, however, is a little murkier. While products such as Quicken and QuickBooks are not tax strategies, tax strategies can be embedded in financial management products and software. The investment banks and the law firms that have patented tax strategies often use software that could be deemed financial management software. The Tax Adviser article I mentioned earlier and got unanimous consent to have printed in the Record describes some of these. With financial management software, patent claims that include inventions that are severable from tax strategies may be entitled to patent protection, but the tax strategy itself will remain available to all taxpayers.

So it is important to protect intellectual property rights for true tax preparation and financial management software. However, we must be sure to protect the rights of taxpayers to have equal access to legal tax strategies.

I yield the floor, and I suggest the absence of a quorum.

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