Withholding Tax Relief Act of 2011

Mr. President, I ask the Chair to please inform me when I have spoken 10 minutes. For other people who want to speak, I don't think I will speak that long.

My amendment No. 860 is a good government amendment for which I hope we can get broad support. There are special interests in Washington making the rounds opposing this amendment. These groups have argued this amendment will unduly burden the Justice Department, take away grant money for worthy causes or erroneously ban grantees from future funds. These special interests are trying to protect their income streams of

Federal grants and don't want somebody looking over their shoulder to make sure they are spending taxpayer dollars wisely.

This amendment is a response to the lack of oversight, accountability, and responsibility for how American taxpayer dollars are spent by grant recipients. It is a response to my work in the Judiciary Committee, uncovering fraud, misappropriation of funds, offshore bank accounts by nonprofit organizations.

Can you understand that? Nonprofit organizations in America have offshore bank accounts, and many other shenanigans are occurring in grant programs administered by the Justice Department.

To fix this, my amendment includes an accountability and fraud prevention package for grants administered by the Department of Justice. I am glad to report the National Taxpayers Union, an independent nonpartisan advocate for taxpayers, supports the amendment.

For the last decade the inspector general has continuously labeled grant management at the Department of Justice a top management and performance challenge. That is from the inspector general. Despite the large sums of money the Department provides the grantees, the inspector general has repeatedly found inadequate controls on spending, inadequate oversight, and a general failure to ensure that taxpayer dollars are spent by grantees in accordance with the programs.

Each year, the inspector general audits only a small fraction of grants awarded by the Department. In fact, last year the inspector general audited 21 grant recipients. Keep the figure 21 in mind. The inspector general questioned more than one-quarter of all the taxpayer dollars these grantees received. These questioned costs occurred on a random selection of grantees and represent less than 1 percent of the total grant recipients. So we only audit--go over 1 percent, but of that 1 percent, 25 percent of them were found to have a waste of taxpayers' money or not proper accounting.

Perhaps the most concerning part of these audits is that they are randomly selected. If the inspector general's random selection of grantees universally uncovers unauthorized errors, then we can see why we have a much larger problem. If the findings of the audit from 2011 were extrapolated through all the grants, that would mean nearly $500 million in questionable costs annually.

My amendment requires the inspector general to audit 10 percent of the grants. It also requires the Attorney General to ban grantees for 2 years if they are found to have serious problems that have gone unremedied for longer than 6 months after the inspector general makes a negative finding. By requiring this remedy within 6 months, it ensures there is enough time to fix inadvertent mistakes but also ensures that truly bad actors are taken off the government rolls.

My amendment also requires the AG to reimburse the Federal Treasury from the Justice Department budget if funds are given to an excluded entity and then requires the Department to recoup lost grant money from those grantees. It also includes a limitation on conference spending at the Department. Just a few weeks ago, the inspector general issued an audit on conference spending at the Department.

We all heard about this audit, which revealed $16 muffins, the $32 Cracker Jack snacks, $5 cans of cola, the beef wellington appetizers, and other abuse of the money of the taxpayers by the Justice Department. What we have not heard is how, by this administration, spending at the Justice Department increased from $47 million in fiscal year 2008 to 1 year later $73 million and now 2 years later $91 million. Despite the biggest Federal deficit in history, the Justice Department, under this administration, has doubled spending on conferences in just 2 years. This is unacceptable, and it is why my amendment requires the Deputy Attorney General to sign off on all conference spending.

My amendment would prohibit the Attorney General from providing any grant to a nonprofit charity that holds money in offshore bank accounts for the purpose of evading Federal taxes. If it is nonprofit, one would think they would be using their money for nonprofit purposes.

This provision was the result of an investigation I conducted into the Boys and Girls Club of America, the national umbrella organization for thousands of local clubs. In response to my inquiry, the Boys and Girls Club of America admitted that, despite closing hundreds of clubs nationwide, it held nearly $222 million in investment, of which $54 million was in offshore investments and another $54 million in partnerships. When asked why this money was held offshore, I was told it was held to `` . . . avoid issues with unrelated Business Income Tax generated by hedge funds that use leverage.''

I support the mission of the Boys and Girls Clubs, truly I do. It is true nothing they did was illegal. However, given our current fiscal crisis, I cannot support Federal tax dollars being awarded as grants to those who hold millions of dollars offshore--I should say tens of millions of dollars offshore.

Finally, I will note that my amendment includes a 25-percent matching requirement for grantees, as I heard the special interest lobbyists have been calling and sending panicked messages to many Members in the Senate opposing the matching requirement, arguing it would shut off Federal money to many grantees.

This provision mirrors one recently included at a Judiciary Committee markup supported by all Judiciary Committee Democrats and some Republicans. Matching requirements are often required by grant programs that virtually all members have supported. The Government Accountability Office even reported in a 2006 report on grant management that to strengthen grant management, Congress should ``ensure mechanisms are of sufficient value'' when implementing grants. This is GAO speak for including a matching requirement so grantees are financially involved, not simply spending Federal taxpayer dollars.

That said, I wanted to modify my amendment and strike this provision. However, I understand people on the other side of the aisle objected to that request so it would be easier to defeat my amendment. Remember, this is an amendment Republicans and Democrats accepted in the Judiciary Committee. This is big money at stake with Federal grants. Talk about special interests, the special interests have spoken. Those who oppose my amendment oppose holding grantees accountable for how they spend taxpayer dollars. Those who oppose my amendment are supporting giving nonprofit charities with money in offshore bank accounts taxpayer dollars. It will be interesting to see who opposes this provision, especially given the fact that everyone should oppose giving taxpayer dollars to those who hold money offshore.

My amendment is a commonsense way to ensure that taxpayer dollars are protected. It is something we should have done long ago. I encourage all my colleagues to join me and send a signal that waste, fraud, and abuse of taxpayer dollars has no place in a Federal grant programs at the Department of Justice. That would include all of them but particularly to organizations that hold money offshore to avoid taxes.

I yield the floor.

Mr. President, this is a good-government amendment, and it goes after the Justice Department grant management program because the inspector general has had grant management at the top of his 10 major management challenges. The inspector general says that management of grants at the Justice Department is abominable, so this amendment is trying to take care of what the inspector general has said is needed to be done for a long period of time. Grant recipients would be held to basic principles of accountability. There are only a handful of grants audited each year, but out of that handful 25 percent talk about mismanagement, fraud, and things of that nature.

A vote against my amendment would be a vote to allow fraud, waste, and abuse of taxpayer-funded grant programs. A vote against my amendment would allow nonprofit charities to continue to hold money in offshore bank accounts for tax purposes and still receive Federal grants. I have a letter in my office that justifies $54 million in offshore accounts.

I hope my colleagues will vote for this good-government amendment.

It is supported by the National Taxpayers Union.

I ask for the yeas and nays.

Mr. President, I thank the Senator from Montana for speaking on behalf of the rural States. It is clear our Nation is facing two grave economic threats: a job crisis and a debt spiral. As much as some people may wish, we cannot ignore one threat over the other. For the sake of our Nation's economic future, we must work together, Democrats and Republicans, and try to find a commonsense solution that protects and creates jobs but does so without adding to our growing deficit and debt.

In a more sensible legislative process, we would be able to sit down and work out compromises that make sense. It is what legislators throughout the Nation's history have done.

Unfortunately, looking at where things stand now, it is clear the legislative process in Washington has gotten so dysfunctional that it doesn't make much sense at all.

I came here to try to fix things, not to make excuses. I sure didn't come here to play the blame game. I have never fixed a thing by blaming someone else. As I have said many times before, it is time for all of us who have been given the great privilege to serve to focus on what is right for the next generation, not worry about the next election.

It is why--as frustrating as this legislative process can be--I will not lose hope that we can make this legislation better.

With respect to the current Teachers and First Responders Back to Work Act, there is no doubt about the fact that our teachers and first responders have a critical role in our Nation. From the classroom where teachers educate our children to the streets where first responders put their lives on the line to keep our communities and Nation safe, these great Americans are so important to the future of this Nation.

They and the American people deserve better than a temporary 1-year legislative proposal that does nothing to fix the long-term fiscal problems that led so many States to lay off thousands of teachers and first responders in the first place.

What will we do next year when States come back again asking for more Federal money? Will we give out more money and go further in debt? Will we borrow more money? What will we do?

As it stands, without any changes, this bill will not solve the fiscal problem that will come once the aid ends. But this bill is not hopeless. It can be made better. I know it.

In my State of West Virginia, we didn't have major layoffs of teachers or first responders during this brutal recession. As difficult as it was, we balanced our budget based on our values and priorities. We made difficult decisions, but we kept our teachers in the classroom and our firefighters protecting our citizens.

Make no mistake, we cut back our spending, but we did so responsibly. We spent where it was needed--on our priorities.

That is the commonsense approach that works in West Virginia because that is how people run their lives. It is how they operate their small businesses, and it is how we should run this country.

We make budget choices based on what is important in our State, to our family, to our business, and to our country.

In West Virginia, this simple, commonsense approach paid off. Every year I was Governor, we ended the fiscal year with a surplus. Every year for the past 3 years, West Virginia has seen its credit rating upgraded.

But now, because of the impact of this recession and the fact that other States did not make the difficult decisions years ago, the taxpayers of West Virginia are being expected to foot this bill for other States.

I believe there is a better way. I believe there is a better way where we can balance the fiscal constraints that States face with the need to protect these vital jobs.

I believe there is a better way we can balance the need to keep teachers and firefighters working, while not asking West Virginia taxpayers--or any taxpayer in any State--to pay for more than is necessary.

That is why I am offering a commonsense amendment that would transform this $35 billion in funding to keep teachers and first responders working into a loan program instead of a grant.

The loan program would allow any State to borrow at very low--or no-- interest the money they need to keep teachers and firefighters employed and pay it back over time, when this recession basically ends.

I don't know of any State that wouldn't put their teachers and firefighters as one of the highest priorities and budget that first.

So this loan program would ensure that States are making the decisions on how much money they actually need and not the Federal Government's willingness to put us further into debt by giving away more money.

It would also ensure that States make smarter and more responsible decisions about what they can and cannot afford to do.

Such a loan program would help protect these jobs and would protect the fiscal future of States when they get in trouble. In short, it just makes common sense.

I encourage my Republican and Democratic colleagues to embrace this commonsense amendment. I encourage them to help me make it even better.

I hope they will support this cloture motion, not because they support the bill as it stands but because they believe in what this legislation could be if we all put politics aside and work to make it better.

If we can get past a filibuster, I hope the amendment process will be a testament to the great legislative moments this body has seen in the past.

As I have been assured by my leadership, this bill, if it gets to the floor, will have an open amendment process that will give us all an opportunity to make this legislation better. It is the

reason why I will vote for this motion to move on with debate.

To my Republican and Democratic friends who may not support this bill as it stands, I respectfully ask them to seize this opportunity to work together to make this bill better.

Trust me, I share many of their concerns. To be clear, if we cannot and do not adopt this commonsense approach that stops throwing money at the problems we have in this country, I will join them and vote against it.

This country is looking to us to do what is right. It is not about this vote or this bill. It is about the fact that so many Americans have lost confidence in this great body. They have lost confidence in the process that they see as broken and incapable of working. They have lost confidence in a legislative process that has become so political it doesn't matter what we do, it just seems all we care about is scoring political points to be used in the next election.

It is a fact that some folks in this town are so busy trying to make the other side look bad that they don't realize they are making us all look bad.

I don't believe for one minute that anybody in this Chamber-- Democratic or Republican--is rooting for our economy to fail or jobs to be lost. We just all have different ideas. While we should question each other's ideas and policies, we should never question each other's convictions.

Shame on us if the blame game is the best thing we can do. We are better than that. I came here to fix things, not to play politics. It is time for us to stop with the bickering and remember one thing: We may be members of different political parties, but we are all party to this great Nation. We are all Americans.

As difficult as it may seem, America and the future of the American people are more important than politics or an election.

I ask again, let's work together on commonsense, bipartisan ideas to get this country on a responsible financial path that will strengthen the economy and create jobs.

Let's work together on making America's future brighter--not just for us but for the next generation.

I yield the floor.

Yes.

Mr. President, I say to my friend that the way the system is set up and the bill, we are able to use this money where possible. An example of where money was used prior--we had two rounds of stimulus funding. This is our third. It was for a very worthy cause. For my State and your State, which didn't have the layoff of teachers or have the cutbacks in education, they would short that into their budget proposal, so when the Governor made his proposal, that money would backfill. That is how it was used. We only created 33 new jobs that first round, but that was $217 million.

The bottom line is--that is why I said we need a loan program. If spending money will fix our problems in America, we have no problems. We have to do it wisely. The Senator's amendments are appreciated, and I hope to support them.

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

Parliamentary inquiry: Has Pastore time expired?

Mr. President, I rise today to speak about the priorities facing Montana and this Nation, creating jobs, responsibly cutting our spending, cutting the deficit, rebuilding our economy. I appreciate the proposal that will be put forth I think later this evening to attempt to create jobs. When that proposal gets to the floor, I will vote to have the debate on S. 1723, because only then will I be able to offer my amendments to that bill, because as it is written, I cannot support that bill.

Having debate will allow us an opportunity to amend it so that it will guarantee jobs in Montana and across America. The perspective I bring to the table is a little different than most. I am someone who lives in, works in, represents a rural State. My responsibility is to make sure every decision I make works for not only Montana but the entire country.

I expect full accountability for every penny of taxpayer dollars we spend. I expect that when you invest in something, you get what you pay for. A lot of folks know I am a farmer, but many do not know I am also a former schoolteacher. I used to teach elementary music at Big Sandy Elementary, in Big Sandy, MT. I fully understand the importance of making sure all of our Nation's teachers have the resources they need to do their job, to lead our most important resource, our children.

As a teacher, I also know that when rural schools are asked to compete with urban schools for Federal funding, rural schools often get left behind. The same goes for emergency responders. Their service sometimes is--even as volunteers, it is very important to rural States such as Montana, whether it is firefighters, police officers, EMTs, they are on the clock whenever they are needed.

In Montana, as everywhere else, firefighters are respected for their courage and their hard work for doing whatever is expected of them to save property and save lives. But when Montana's rural fire departments and rural police departments have to compete for Federal funding, guess who often gets the short end of the stick. That is right, it is the emergency responders in rural States such as Montana, the folks who often do not have the professional grant writers to help them secure the basic equipment that they need to do their jobs safely.

That brings me to my proposal. I want to state again, as 1723 is written, I cannot support it. I am not convinced it will create the jobs it must create. And $30 billion in this bill is meant to go to States to boost education, to hire teachers. Yes, investing in education is a powerful short-term and long-term way to create jobs. But as written, this bill fails to give taxpayers any guarantee that their money would actually be used to hire teachers and invest in our schools.

The fact is, this money could be used to supplant funds instead of supplement funds. A State would get loads of money with little guidance that they spend the money on teachers. But we all know what happens. A lot of smart folks who work in State budget offices can find their way around guidance, because money is pretty darn easy to move from one budget account to another. In other words, there is no guarantee that this bill will create the jobs.

Montana is one of two States that has a budget surplus right now. We have been living within our means. There are other States such as Kansas that are considering broad-based tax cuts. That is fine. Kansas can do that if it wants. But I am not convinced that we should be writing checks to States so they can cut taxes. Montanans should not be paying for tax cuts for people in our States, nor should we be giving precious taxpayer money for States to build up their rainy day fund.

I am all for individual States making smart choices with their own money. But giving them Federal money and hoping they will use it for education and teachers, well, that is not good enough. With that kind of money, we need a guarantee. If the motion to proceed is adopted, I plan to offer two amendments to address my concerns. One will address the $5 billion in this bill meant to provide aid to the Nation's first responders. My amendment is a simple one. It requires that 20 percent of the competitive grant funding goes specifically for rural communities. That is only fair because rural communities make up 20 percent of our Nation.

The other amendment puts sideboards on the remainder of the money in this bill, to guarantee that it will be used in a way that it is supposed to be used, to create jobs in education, to invest in our kids. My amendment will prohibit States from pulling their own State money out of education programs when they take this Federal money. How? By putting the money into Part B of the Individual with Disabilities Education Act, IDEA, otherwise known locally as special education.

When I traveled around Montana after the passage of the Recovery Act in 2009, school administrators told me the money that made it to the ground was very much appreciated, but that special education was their top priority. IDEA funding is still one of the biggest unfunded mandates the Federal Government has on local school districts.

When it was first enacted, the Federal Government promised to pay 40 percent of the cost of this important law. Today, we pay less than half of that promise. This amendment will help bridge that gap somewhat. Special education funding is not only a top priority for the folks in Montana, it also guarantees that the funding gets to the local level.

It also guarantees that its funding gets to the local level. If the money in this bill is supposed to be for teachers, then let's make sure it ends up there. This amendment is a good way to do just that.

I ask unanimous consent that these two amendments be printed in the Record.

I would like to talk about one other thing that is missing from the bill, and that is a reauthorization of the Secure Rural Schools Program and the Payment-in-Lieu of Taxes Program, otherwise know as PILT.

These two programs will do more to ensure that thousands of teachers stay on the job than anything else we can do around here. Here is the kicker: In the middle of this partisan debate, Secure Rural Schools and PILT are bipartisan programs.

Under the leadership of Senators Bingaman, Murkowski, Baucus, Crapo, Wyden, and Risch, we have a bill that can pass right now--today.

It would keep 4,000 teachers on the job at a cost of $3.5 billion over the next 5 years. That is small potatoes compared to the $35 billion in the bill that is before us today.

It is a very reasonable bill. But because it is so reasonable, nobody wants to see it appear in the middle of such a partisan debate. Once again, too many folks in Washington are looking for ways to point fingers.

Quite frankly, I don't have as many fingers as most folks around here, so I would rather use mine to solve some problems. Only after this final bill is amended to guarantee job certainty will it be able to earn my vote.

In order to amend it, I am going to vote for the motion to proceed. My vote is a vote for a debate we ought to have. It is an important one, so we can truly create jobs and focus on rebuilding our economy.

I look forward to that debate.

With that, I yield to my friend from West Virginia.

Mr. President, will the Senator from West Virginia yield for a question?

Mr. President, I say to Senator Manchin that I think everybody in this body wants to have real job creation. They want to see this unemployment rate go down. I think most everybody realizes that if we cannot get the unemployment rate to go down, the chances of paying off our debt and getting the budget under control will be severely diminished. The Senator has offered some potential amendments to S. 1723, as I have--assuming we get cloture on this bill. In a previous life, the Senator from West Virginia was a Governor. When I was in the State legislature, oftentimes, money came to us from the Federal Government, and we very much appreciated it. But we took an administrative cost right off the top, as a natural procedure--anywhere from 3 to a much higher percentage rate than that. Is that something they did in West Virginia? How would the Senator's amendment impact things such as administrative costs and will you be able to get more of your money to the ground out of these dollars?

I thank the Chair.

Mr. President, I thank the distinguished assistant majority leader for his comments. And I will disagree, but I think we could agree, because my proposal is not to cut off anybody who ought to receive food stamps. My proposal wouldn't cut off any benefits to anybody who deserves food stamps. My proposal would not cut off anybody who qualifies for food stamps. It would say that just because you complied with the requirement for TANF or you complied with the requirement for LIHEAP or you sought assistance for some family planning issue, that those don't automatically qualify you. I don't think it is too much to ask someone who would be given thousands of dollars over a period of time in food stamps to fill out a form. That form would say what your income is and what your assets are. And if you have substantial assets that are higher than the food stamp law allows, you should not get it.

So I don't believe this proposal does anything but help tighten up the act. I don't believe it is too much to ask that somebody fill out a form to demonstrate they are qualified before they receive free money from the U.S. Government for the purchase of food, and certainly I would emphasize that dramatically.

I don't think the Senator disagrees that any program in the U.S. Government of any real size has surged faster than this program has. It has gone up, since 2010, $20 billion. In 2009 or so, unemployment hit 9.8 percent. It is now 9.1. It is too high, and people need food stamps and they should get them. And perhaps there are more people out there who qualify even than in 2009, or whenever our unemployment hit almost 10 percent. Maybe there are more people today. I don't know. But I don't think there are huge numbers more. You go from $59 billion to $79 billion, that is about a 38- or 40-percent increase in 2 years in this program. One of the reasons is we have made people automatically eligible.

So if you are eligible for any of these programs, you have received any assistance, you may not have even filled out a form that has anything like the same qualifications that the Food Stamp Act requires, you are automatically, categorically, qualified.

The Congressional Budget Office says if this change in the law that happened recently were to be eliminated, it would save $10 billion over 10 years. It would not reduce food stamps; it would just reduce a little bit the growth in food stamps. The $10 billion over 10 years represents $1 billion a year in the first year. It would be less than that, according to the score we have seen. But let's say in the first year that this program reduced spending by $1 billion, that is $1 billion out of the proposed $79 billion. So we are expecting to spend $79 billion this year, and we would only

spend $78 billion. But that adds up over time. And food stamps need to be looked at across the board much more carefully, because we don't have that many more people who are in poverty today than we have had. But we have many more people receiving food stamps.

I would stress that this year's increase in food stamps by another 14 percent is not an acceptable figure, because we know that there are problems within the program.

Amendment No. 753

Mr. President, I wish to say one thing briefly about Senator Ayotte's proposal on terrorism prosecution. As a Federal prosecutor for almost 15 years, I truly believe she is correct on this issue. It is something we have been debating in Congress for a long time. Congress has made clear its view about it.

I would simply say this. The Presiding Officer is a former Attorney General. But if you make the presumption that an individual who is arrested is to be tried in article III courts, even though they are an enemy combatant against the United States, against the laws of war, an unlawful enemy combatant, those individuals should be treated as warriors and they should be treated as enemies of the country, and they should be arrested and detained, and presumptively in military custody. This is the tradition of the United States from its founding. This is worldwide accepted law. And I do believe we need to understand the reason this is important.

An individual who is arrested attacking the United States and who is going to be tried in a Federal court must be given Miranda warnings before they are interrogated, must be provided a lawyer, must be promptly taken before a U.S. magistrate, must be provided discovery in the government's case, and must have a public hearing. You don't do that for people who are at war with you.

I would yield.

That is a very important question. This individual perhaps looks like he just fell off a turnip truck or something. He was not a very solid person and he decided to plead guilty, and that was good.

Many of these individuals are very tough, very clever, very devious. They have, we know for a fact, used the civil justice system to find discovery against us, how we discover their activities, what kind of surveillance techniques we use, and made the trials dangerous places and have made the trials showcases. So I think that just because one individual decided to plead guilty, it has no bearing on the overall principle that if you arrest people on the battlefield, they are not required to be taken immediately to a judge and given a lawyer.

I will be pleased to.

The Senator is so correct. We went through a number of actions. The Supreme Court found the law inadequate, and Congress responded to the Supreme Court's concerns and passed clear laws that are certainly adequate within the Constitution as described by the Supreme Court. We now have an entire system set up to meet the Supreme Court's concerns about the trial of these individuals. It is safe. It is secure. It is consistent with Supreme Court requirements and international law.

Absolutely correct. I think Senator Ayotte really reached out to Members of this Senate to make sure they knew there was an option to do it another way, and it does provide the President that option.

With regard to the FBI and their involvement, they are a great investigative agency. If they participate in the arrest of one of these individuals and they were turned over to the military, the FBI can still work with the military to investigate the case. It would just be tried under military commissions according to the lawful system Congress, in a bipartisan way, passed several years ago.

That is a very good question. Under the law of the United States, if you are to interrogate an individual who has been taken into custody, the police have to give them Miranda rights before they interrogate them. As long as that person is in custody, if you are going to try them in a civilian court--and Director Mueller of the FBI, in response to questions I asked him, acknowledged that if you are going to try the person in the civilian courts and you conduct interrogation, you must give them Miranda warnings.

There have been suggestions that somehow the terrorist cases would allow the interrogation to go on a few hours, but I have not seen any real authority that would justify that. The clear Miranda standard for any police officer in America is that if you arrest someone, before you ask them questions, they must have been given their Miranda rights. That is the rule in the trial of any Federal court. I think it would be very dangerous to assume the court is going to give some extraordinary new rights that they have never indicated they would.

I thank the Senator, the Republican leader, for his good questions.

I would just say I think Senator Ayotte has worked very hard on this amendment. She herself is a skilled prosecutor. I believe the legislation would be helpful to us.

I will just say that as a matter of policy, you can be absolutely sure it will be more difficult to prosecute a case, more likely to complicate matters significantly, if they are given Miranda warnings, if they are given lawyers, if they are brought publicly before a judge--perhaps revealing to the other coconspirators the fact that you have been arrested before they can be apprehended. It would cause many more difficulties than are necessary.

Of all people we ought not to give extra rights to, it would be terrorists bent on killing and maiming innocent Americans.

I yield the floor.

Mr. President, I am going to speak now against the pending amendment of Senator Ayotte, which would prohibit the prosecution of terrorists in Federal courts.

We need all available tools against terrorists, including the possibility of prosecution in Federal courts or before military commissions. While there is no doubt we have made use of military commissions in the course of previous wars, we have never enacted legislation closing the Federal courts to the prosecution of our enemies. We have always left it up to the executive branch to determine which tool best suits an individual case.

Indeed, both the Bush administration and the Obama administration have repeatedly used the Federal courts to bring terrorists to justice. For example, the Bush administration successfully used the Federal courts to prosecute Richard Reid, the so-called shoe bomber, in October of 2002. The Bush administration used the Federal courts to successfully prosecute Ahmed Omar Abu, who was convicted and sentenced to 30 years in 2005. The Bush administration used the Federal courts to prosecute and sentence Zacarias Moussaoui, the so-called twentieth hijacker, convicted in 2006, and sentenced to life in prison for his role in the 9/11 attacks.

The Obama administration successfully used the Federal courts when they prosecuted Najibulla Zazi in 2009 for his role in the New York subway bombing plot; when they prosecuted Faisal Shahzad in 2010 in connection with the Times Square bombing; and when they prosecuted Umar Farouk Abdulmutallab, the so-called underwear bomber, in 2011 in connection with the attempted Christmas Day bombing in Detroit.

If the Ayotte amendment had been law, these successful court prosecutions would have been thrown into doubt. In fact, prosecution might not have been possible in any forum, because if a court determined that a military commission lacked jurisdiction and if the Ayotte amendment precluded jurisdiction of a Federal court, there couldn't be prosecution in any forum whatsoever.

That could have actually been the outcome in the case of Ahmed Warsame, an accused member of the terrorist group al-Shabaab. He was indicted in Federal court earlier this

year on charges of providing material support to al-Shabaab and al- Qaida in the Arabian Peninsula. In the Warsame case, our national security and legal teams determined that the Federal courts provided the best forum in which to prosecute Warsame for his alleged crimes.

This decision was reached for two reasons:

One, Warsame is alleged to have violated a number of Federal statutes, including sections of the criminal code prohibiting trafficking in explosives, use of dangerous weapons, acts of international terrorism, providing material support to foreign terrorist organizations, and receiving military type training from foreign terrorist organizations. Only the Federal courts have jurisdiction to try violations of those sections. Those offenses are not listed as crimes under the Military Commissions Act.

There is a second reason why it was decided that Warsame was best prosecuted in a Federal court, which could not happen under the amendment of Senator Ayotte. Warsame appears to have engaged in acts of terrorism and material support to terrorism, both of which are crimes under the Military Commissions Act, but--and this is the problem--only if they are committed ``in the context of and associated with hostilities'' against the United States.

The administration concluded it would have been difficult to prove beyond a reasonable doubt before a military commission that Warsame met those jurisdictional thresholds. As a result, if the Ayotte amendment were law, it might be impossible for the United States to prosecute Warsame in any forum.

Our Federal prosecutors have a proven track record of prosecuting terrorists in Federal courts. Two years ago, the Justice Department informed us that there were 208 inmates in Federal prisons who had been sentenced for crimes relating to international terrorism, and an additional 139 inmates who had been sentenced for crimes related to domestic terrorism. Those were crimes which were prosecuted in Federal courts.

By contrast, only four enemy combatants have been convicted by military commissions since 9/11, two of them, by the way, as a result of plea agreements, sending them to Australia and to Canada.

Critics of the decision to try Warsame in Federal court apparently would prefer that he be tried before a military commission even though he might be less likely to be convicted there due to the jurisdictional issues.

The most appropriate forum for trial should be determined, as it was in Warsame, on the basis of the nature of the offense, the nature of the evidence, and the likelihood of successful prosecution. The executive branch officials who make these determinations are more likely to reach a sound conclusion after weighing those factors than would be the result of a one-size-fits-all legislative restriction that we would impose under the Ayotte amendment.

Yesterday afternoon we received a letter from the Secretary of Defense and the Attorney General expressing their ``strong opposition'' to the Ayotte amendment. The letter states as follows:

Whether a given case should be tried in an Article III

court or before a military commission is a decision that

should be based on the facts and circumstances of the case

and the overall national security interests of the United

States. It is a decision best left in the hands of

experienced national security professionals.

The letter continues:

If we are to safeguard the American people, we must be in a

position to employ every lawful instrument of national

power--including both courts and military commissions--to

ensure that terrorists are brought to justice and can no

longer threaten American lives. By depriving us of one of our

most potent weapons in the fight against terrorism, the

amendment would make it more likely that terrorists would

escape justice and innocent lives would be put at risk.

I ask unanimous consent that the text of the letter be printed in the Congressional Record immediately following my remarks.

This issue, as the Presiding Officer may recall, came up in the Armed Services Committee during our markup of the Defense Authorization Act. Our bill expressly allows the transfer of detainees for trial by a court or competent tribunal having lawful jurisdiction. The amendment of Senator Ayotte to delete that authority was defeated in the Armed Services Committee by a vote of 19 to 7.

The bottom line is that Congress has never before attempted to prevent the prosecution of terrorists in Federal court. We should not do so now. We should continue to use military commissions in cases where they are the best place for prosecution and for trial. We should not foreclose prosecution and trial in Federal courts.

Exhibit 1

Hon. Harry Reid,

Majority Leader, U.S. Senate,

Washington, DC.

Hon. Mitch McConnell,

Minority Leader, U.S. Senate,

Washington, DC.

Dear Leader Reid and Leader McConnell: We write to express

our strong opposition to the Ayotte amendment to H.R. 2112,

which would severely curtail the ability of the Executive

branch to prosecute alleged terrorists in Federal court.

The amendment represents an extreme and unprecedented

encroachment on the authority of the Executive Branch to

determine when and where to prosecute terrorist suspects.

Whether a given case should be tried in an Article III court

or before a military commission is a decision that should be

based on the facts and circumstances of the case and the

overall national security interests of the United States. It

is a decision best left in the hands of experienced national

security professionals.

If we are to safeguard the American people, we must be in a

position to employ every lawful instrument of national

power--including both courts and military commissions--to

ensure that terrorists are brought to justice and can no

longer threaten American lives. By depriving us of one of our

most potent weapons in the fight against terrorism, the

amendment would make it more likely that terrorists will

escape justice and innocent lives will be put at risk.

Leon E. Panetta,

Secretary of Defense.

Eric H. Holder, Jr.,

Attorney General.

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

Mr. President, for my colleagues who are here, I wish to explain the reason for an amendment which I have filed, No. 912, along with the cosponsors, my colleagues Senator McCain and Senator Cornyn from Texas, an amendment which seeks to add some money for the U.S. Marshals Service. I wish to explain why we think this is a good idea, but first to say that in speaking with Leader Reid, we are trying with our staff and the majority staff to see if we can work out the appropriate pay-fors for this in an appropriate amount of money that would assist the U.S. Marshals Service. Hopefully we can work something out. I am just trying to explain the basis for this at this time.

As you know, we have done a lot of work on the borders to try to secure them, and that has required us to add money for the U.S. Border Patrol and several other accounts in the Department of Homeland Security. We have added money for the Department of Justice. We need new judges, courtrooms, prosecutors, defenders. It has taken a lot of money to secure the border with all of the different aspects that are involved.

The one area we have not kept up with is the U.S. Marshals Service. All of us know the U.S. Marshals Service. It is a great organization. These people do tremendous work. But sometimes we forget them. And what we have learned here is that while we have an increased ability to apprehend illegal immigrants and to try them in court, and even jail space to hold them, the group that does the holding and the transporting and the keeping of the judges and the courtrooms safe during the process, the U.S. Marshals Service, has not had funding to keep up with this. As a result, they are way low in terms of both personnel and also some facilities that need to be upgraded to accept the much larger numbers of illegal immigrants and other prisoners who are in their custody.

To give you one illustration, when prisoners are brought to a courthouse, obviously there are huge security measures that have to be followed to ensure that jurors, judges, the public at large, witnesses, and so on, are not in jeopardy because of the existence of the prisoners. So they are generally brought in vehicles, appropriately accompanied, to secure facilities in the court building and then at the appropriate time brought to the courtroom, and all in the custody of the marshals, and with appropriate security for all.

However, because of these increased numbers, what we found is, by way of example, they bring the prisoners from the holding facility, the prison, the jail, wherever it might be. They literally have to disembark in a public parking lot where jurors are parking to come up to be involved in cases, where the public at large, where witnesses, where victims and families, judges and lawyers are coming to park to go to the courthouse, and go up the elevators and so on right with these same people. That is not a secure situation.

In most situations the marshals have the ability to take their prisoners directly to a secure port, a place in the courthouse where they can immediately put them into custody in a secure locked-down facility. Construction of some court buildings need to keep up with this demand, and it requires some money, in this case, about $16 million. I know this is a small matter in the overall budget that we are talking about. But for the Marshals Service to do its job, this is important for them.

They need additional personnel. The cost of that far exceeds $10 million. But that is what we thought we would try to ask for in this amendment to at least bring the Marshals Service up to a level where they can accommodate the new numbers of prisoners.

In our amendment, $20 million is provided for additional deputy marshals and security-related support staff to assist in overall Southwest border enforcement. We have narrowed this down to the five judicial districts on the border that have--well, in fact, these districts have about half--49.7 percent, to be exact, of all the prisoners nationwide brought into the custody of the Marshals Service are brought in by way of those five Southwest border judicial districts. And about half of those in the Marshals' custody along the Southwest border are or were held for immigration-related offenses.

So this is the need that we are trying to satisfy with this amendment. The Marshals Service employs only about 80 percent of what they need in terms of Marshals and support staff in these court facilities. A recent Department of Justice hiring freeze has prevented the Marshals Service from reaching even 90 percent of its personnel needs along the Southwest borders. To reach 100 percent of staffing would require $43 million, to hire an additional 162 deputy marshals and 71 support staff.

We all know the constraints we are all operating under here, so we cut that back to simply try to reach 90 percent of their requirement for hiring needs. And that, as I said, would require just about $20 million for these hiring purposes.

On the construction side of it, the amendment provides for $16.5 million for these detention upgrades at the Federal courthouses located in this border region. Of the $16.5 million, $1.5 million would specifically be allocated for courthouse security equipment. I have told you a little bit about the problem with the security at the courthouses. Some of this would obviously be used for construction of a port that would allow these vehicles to unload detainees and prisoners right next to cellblock doors and so on. I described that.

But this is the least we can do, both to protect the public and to assist the Marshals Service. There has been some dichotomy of views, shall I say, expressed by the Department of Justice and Department of Homeland Security about whether they have what they need to secure the border. We have heard the Secretary of Homeland Security say, we have all we need. But we also know that the Secretary has said, we have to prioritize our detention policy, for example, because we do not have the facilities and the money we need to detain and deport all of the people who are deportable, so we have to focus on the most serious crimes, the felons primarily, who are now the top target for deportation.

Obviously if you have to prioritize, we would agree with that prioritization. But what that means is that they do not have enough money to do all that they are trying to do. So on the one hand, it is kind of distressing that the Department says we have all we need and, on the other hand, we do not have enough, so we have to prioritize what we do.

What we are trying to do in this appropriations bill is to attack the one part of the problem that we can in this bill, and that is to help the U.S. Marshals. As I said, I do not think there is

one of us here that would not be supportive of that. I want to avoid the situation where, God forbid, someone is at a courthouse or entering the courthouse or whatever and innocent people are harmed because we did not have the appropriate security. That is what we are trying to provide in this amendment.

As I said, this is cosponsored by my colleagues Senator McCain and Senator Cornyn. Obviously the three of us are very aware of the problem that we have in our judicial districts on the border. So I reiterate, I appreciate the offer of the majority leader to make majority staff available to see if there is some way that with my staff we can work out some appropriate amount of money, with the appropriate pay-fors. I hope I will be able to announce that a little bit later on. I will not take any more of my colleagues' time right now.

But if anyone has questions about this and wishes to talk to us about it, since I am hoping that we will have something to support a little bit later on this evening, I would appreciate them either contacting me or Senator Cornyn or Senator McCain.

Would the Senator yield for a question?

I have heard it argued on the floor here in connection with this issue that somehow because the Christmas Day bomber pleaded guilty in an article III court, that was an argument for putting him in the article III court. As a distinguished former prosecutor, I wonder if my friend from Alabama could address the issue of whether because somebody happened to end up in an article III court and happened to plead guilty, how that was an argument for his placement there in the first place.

Will my friend further yield for a question?

I have heard it said on the floor that because a number of terrorists have been tried in article III courts in the past--and I have heard people add up the number of times--that is somehow an argument for continuing to do it.

Is it not the case, I ask my friend from Alabama, that we just set up these military commissions a few years ago at the insistence of the Supreme Court in order to deal with this issue, and only since that time have we had a defined alternative for dealing with these enemy combatants who are also not citizens of the United States?

I ask my friend, is it not also the case that the amendment of Senator Ayotte has in it a national security waiver? I have heard it said that we have eliminated all the President's options. Is it not the case that even if the amendment of the Senator from New Hampshire were adopted and the President felt strongly, for some reason--it's hard for me to contemplate such a set of circumstances, but it is possible--he could, in fact, issue a national security waiver and go ahead and do it anyway, could he not?

I have also heard it said--I am going to pose another question to my friend--that it is kind of ludicrous to assume this ultimately leads to reading Miranda rights to a foreign terrorist on foreign soil. I think it strikes the Senator from Kentucky that that might be the logical extension of where we are going. If, in fact, we are saying that, routinely, foreigners, enemy combatants are going to be mainstreamed into article III courts, when do these protections, if you will, we afford to American citizens under the Constitution attach?

So would it not be the case, then, that all of these issues in terms of the timing of the attachment of these rights would soon be before courts in the United States for interpretation-- ultimately, I guess, by the Supreme Court--as to at what point do these rights now afforded a foreign enemy combatant attach?

I thank the Senator from Alabama.

Mr. President, I am just going to make one final point on this issue, and then I want to address another amendment we will be voting on at some point.

One thing we have not discussed is what happens if the foreign enemy combatant in the article III court in the United States is actually acquitted. If he is, he, of course, has to be released. The deportation option is only available if some other country is willing to take him. There is not a whole lot of clamoring for these kinds of folks anywhere else in the world. We have had that experience. The courts then cannot keep them. They are released into the United States as a result of an acquittal in an article III court in the United States, and there is a situation where you cannot deport them because no one will take them.

I think the point is that this is all totally unnecessary. These are foreigners; these are not citizens of the United States. They have no right to be in an article III court. We don't dispute that the President can put them in an article III court, but why would he want to do that? We responded to the decision of the Supreme Court to set up these military commissions for this precise purpose, and it is clear this administration does not want to use them.

I also would like to make some brief comments about a matter we will be voting on later this evening. Everybody here in this body knows the American people want us to do something about the jobs crisis. What Republicans have been saying is that raising taxes on business owners is not the way to do it. So what we have done is we have combed through the President's latest stimulus bill looking for things we can actually support, for things that do not punish the very people we are counting on to create jobs. In other words, since the President never asked if there was anything in this legislation we could support, we have actually done it ourselves.

It turns out there is a very sensible provision in the President's second stimulus bill that would help businesses across the country. In fact, it is absolutely identical to a bill Senator Scott Brown of Massachusetts introduced with 30 cosponsors earlier this year, many of them Democrats, among them Senators Franken, Begich, Klobuchar, Pryor, Tester, and McCaskill. They are all cosponsors of Senator Scott Brown's bill.

What this bill does is it repeals an existing requirement that government agencies at the State, local, and Federal level withhold 3 percent of every payment to any contractor with whom they do business. This is money contractors may very well end up getting back from the IRS at some point long after the job is done, but in the meantime the government gets to hold on to it instead of allowing the businesses to invest it in jobs and the economy. This is money these companies could be putting toward hiring workers and growing their businesses, but it is going to the IRS instead, basically as a zero-interest loan to the Federal Government here in Washington.

I know Members on both sides of the aisle are hearing from constituents about how burdensome this regulation is. That is why President Obama himself already embraced delaying its implementation in his first stimulus bill and proposed delaying it again in his latest stimulus bill. That is why Senator Scott Brown got so many Democratic sponsors when he proposed a full repeal.

Like the President's bill, this bill is fully offset, and the offset we are proposing has been supported by our friends across the aisle. In fact, the last time I saw a vote, I think 81 Senators actually voted for it. So the bill we are proposing is bipartisan. The offset we are proposing is bipartisan. There is no reason in the world that our Democratic friends, including the President, certainly, should oppose it. If delaying this legislation was a good idea before, repealing it should be an even better idea now. The bill is supported by hundreds of business groups representing job creators across America. We should come together and act right now and make it easier for them to create jobs for a change, and not harder.

The President asked us to come together and pass pieces of this bill. Here

is one that all Senators should be able to agree on. Let's vote on it and prove the skeptics wrong by acting in a bipartisan fashion on something that the job creators in this country actually want.

I yield the floor.

Mr. President, I would ask my friend, did you propound a consent agreement?

Fair enough. I want to echo the comments of the majority leader. In my time in the Senate some of our best work has been done on Thursday night. Usually when we are passing bills around here, we are working on Thursdays into the evening and finishing them. It is my hope that we will continue on that path and finish this bill tonight. Frequently coming back on Friday is counterproductive, and I would encourage all of the Members to cooperate to the greatest extent possible. I think we were, the last time I checked, making progress toward getting a lot of amendments in the queue hopefully to be voted on tonight.

Mr. President, reserving the right to object, this would implement a tax increase. It also would be subject to the same blue-slip concern the majority leader expressed with regard to the vote we are going to have on the 3-percent withholding. Therefore, I object.

Mr. President, I rise in support of amendment No. 859, which is a germane amendment to the underlying bill. It is one I introduced that would restore fairness, encourage competition, and prevent many States around the country from seeing cost increases in the price of guardrails. This amendment specifically addresses the Transportation bill we are talking about and addresses one of the new provisions in the bill this year that is a mandate that I think is not appropriate.

A lot of States have infrastructure challenges right now, and the last thing we should be doing here in the Congress is making it more difficult for States to pay for their infrastructure with the limited transportation dollars they have. With the fiscal crisis we have, we have to make sure now more than ever that States have the flexibility to meet the requirements from the Federal Government.

At a time when unemployment is over 9 percent and we have over 14 million Americans out of work, we should be doing everything we can to protect jobs. This amendment would hurt jobs, and this amendment I am offering would give States more flexibility to help keep some jobs.

There are countless miles of guardrails in our country, and many of those are manufactured in my home State of Ohio. Those manufacturers galvanize the guardrails to prevent corrosion, and they have two options on the process they use to galvanize the metal as well as two options with regard to the thickness of the zinc they use in the galvanization process.

In terms of the galvanization process, the first method is called continuous galvanization, where a company treats the flat steel with zinc and then fabricates the guardrail afterward. The second method is called batch galvanization, where the company dips the final product in a zinc bath after they have completed the fabrication.

In addition, there are two types of zinc thickness options for the guardrail. Type 1 requires a thinner coat of zinc, and type 2 requires a thicker coat of zinc, which increases the life of the guardrail. A lot of States around the country, including Ohio, require type 2, which is the thicker kind of zinc, for all of their guardrails, and that is due to the harsher conditions that cause metal to erode more quickly. However, Ohio is one of those States that, although they require type 2, allow for continuous galvanization or the batch galvanization process--either one.

It was a great surprise to me to read the legislation before us. The underlying bill says the States are prohibited from using any kind of guardrail unless it is type 2, plus it is produced through this batch galvanization process. So it is a mandate. Again, it has never been in this legislation before. It says it has to be type 2, meaning the thicker type zinc, and has to be applied using a particular process, so it is micromanaging the process.

The life of a guardrail, as you can imagine, is entirely dependent on the thickness of the zinc but also on the environment into which it is placed.

There are 15 States that still approve type 1. These States have less extreme environments where corrosion occurs more slowly, and the extra thickness of zinc is not needed. Without this amendment, they would be forced to buy a more expensive product that they don't want and don't need. By the way, those States are Mississippi, Virginia, Delaware, Oklahoma, Missouri, Kansas, Nebraska, Iowa, New Jersey, Colorado, Utah, Texas, California, Montana, and Wyoming.

The U.S. Department of Transportation has weighed in on this issue. They have said:

Requiring all galvanized steel to meet type 2 could add

unnecessary expense for many States where the added thickness

of galvanization is not needed. We know that type 1

galvanizing will protect guardrail components in many

locations for the typical 20-year life design. The extra cost

of type 2 galvanizing may be unwarranted.

That is the U.S. Department of Transportation.

The Ohio Department of Transportation has said that while they only use type 2 materials, ``ODOT does not have a preference as to how galvanizing occurs.'' They do not have a preference for a particular species of guardrail, as both have been found to have very similar properties to one another. They would prefer that their flexibility to use both kinds remains intact. That is the Ohio Department of Transportation. They don't want to be told they can't use the process many of them use now, which is continuous galvanization.

The primary manufacturer of continuous galvanization guardrails is Gregory Industries, located in Canton, OH. It was founded in 1896. It is a privately owned company currently run by the fourth and fifth generations of the Gregory family. These guardrails make up about 75 percent of the Gregorys' business, and about 99 percent of the guardrails they make are made through this continuous galvanization process that would be prohibited under the legislation. In addition, about 30 percent of their sales come from type 1 guardrails, which would be prohibited under the legislation. So the language as it stands would be devastating for this one company and put 125 jobs in their Canton, OH, facility at risk.

By the way, the guardrails they produce are approved by the American Association of State Highway and Transportation Officials in a document called the M-180 that dictates what is acceptable and what is not.

The type of products the current language would prohibit, by the way, have been in use in all 50 States in the country, and the continuous process for galvanizing guardrails that would be prohibited has been around for 50 years.

The bottom line is that we should not give this Ohio company or any company an advantage. We should allow competition to determine this and let the States determine it. Why come up with a new mandate that micromanages this process at a time when we are all trying to save dollars and use them more efficiently? So this amendment seeks to strike the language that would limit the flexibility of States and place additional costs in cases where it does make sense to use type 1 or it does make sense to use this continuous galvanization.

I urge the Senate take a commonsense approach, and I urge all of my colleagues to support this legislation. I know my colleague may have some thoughts on this, but, in summary, I would ask through this amendment to strike the language that would limit the flexibilities of States and encourage support of amendment No. 859.

I ask unanimous consent that the pending amendment be set aside, and I call up my amendment No. 859.

I thank my colleague for his comments and look forward to working with him. Again, it is a simple amendment. It is a jobs amendment. It is perfectly germane to the bill. It is exactly the type of amendment that I think should not be blocked through this process.

I thank my colleague from Wisconsin.

I yield the floor.