Marketplace Fairness Act

Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Madam President, I rise today to speak about the dire finances of this great Nation and the policies and laws of this government that are only weakening our fiscal standing for future generations.

A year ago, I was in a Senate Armed Services Committee meeting and then-Chairman of the Joint Chiefs of Staff ADM Mike Mullen was asked: What is the greatest threat to our Nation and our national security? I would have thought he would have said terrorism, the terrorists, al- Qaida, North Africa, could have been Iran, it could have been another rising military power, but he didn't hesitate in responding that the national debt is the greatest threat to our country.

That was one of the most sobering moments I have experienced since becoming a Senator. I thought more people would hear what he said and take this situation more seriously, but things have only gotten worse since then. Our debt ceiling is at a record here, $16.4 trillion. By 2022, according to the President's newly proposed budget, we will be $25.9 trillion in debt. That means every man, woman, and child will be responsible for more than $79,000 of debt. Our children and grandchildren will be paying more in interest on that debt than we spend on education, energy, and defense--combined. Our elected leaders should be negotiating solutions but instead everyone is

cooking up short-term Band-Aids that create long-term obligations that will take years for future generations to repay. They are trying to figure out how to point fingers at the other side.

There is not a person in West Virginia who can understand why politics is trumping our future fiscal stability. I don't think there is a person in America who understands why in Washington we cannot come together on a long-term fix to the problems we have. And for the life of me, I cannot imagine why our elected leaders from both sides of the aisle continue to play political football with our spending, our debt, and our children's future. This isn't how we reach a solution.

When I was Governor of the State of West Virginia, I didn't blame previous administrations for our problems. I took the responsibility for fixing them. And I didn't come here to blame anyone for our problems either. I came here to fix them. I didn't come here to put the next generation into more debt; I came here to get them out of it. I came here to serve my State and Washington because my parents and grandparents left me a country that was in very sound fiscal shape and I want to do the same for the next generation. I came here because in West Virginia, even during a recession, we lived within our means and had a surplus every year that I was Governor. The people of my State are proud of what our little State accomplished, and I know Americans can again feel that same pride in this great Nation of ours. I know we can put our fiscal house back in order.

I had those priorities in mind when I looked at the President's proposed budget, the projected deficits, the accumulated debt over the next decade and wondered, what in the world are we doing? This budget claims to be balanced, but only if we don't count the exploding interest we must pay on our ever-increasing debt. Including interest, there is not a single year that this budget is balanced. At the end of the decade, this budget puts an additional $6.7 trillion more on the debt. And I would ask anybody, how does that make sense?

This is not the first time I have shared my concerns about this country going down the wrong fiscal track, and I can already hear some folks saying: Oh, there goes Joe Manchin again blaming President Obama. Well, let me tell you, I am a proud Democrat, but I am a proud West Virginian and American first, and I will stand and speak my mind whether our President is a Democrat or Republican. I am trying to be as understanding and respectful as possible in my critique, but what we are doing doesn't make any sense at all to me, and I certainly cannot in good conscience tell the people of West Virginia any differently. And if we don't do anything to address this fiscal mess, the priorities of both Democrats and Republicans will face the consequences.

Standing here, I tell my Democratic friends that we must face the truth that the very programs we care so dearly about and fight so hard for will be destroyed unless we do something about this exploding debt. Standing here, I also tell my Republican friends that they too must face the truth or not only will the programs they care about be destroyed, they may be forced to one day support a massive tax increase to simply keep this country solvent. Both scenarios are unacceptable and preventable.

There is a commonsense solution to our Nation's dire fiscal woes within our grasp. We already have a template with substantial bipartisan support, split evenly between Democrats and Republicans in both the House and the Senate, that gives us a starting point with which to move forward. As I have said before, the Bowles-Simpson framework might not be perfect, but it has more support from both sides of the aisle than anything else I have seen since I came here. Not only that, it withstood the test of time better than any other proposal I have seen. It is a framework that cuts trillions from our debt, makes our tax system more fair, and raises revenue without raising tax rates. The only problem is that our country's leaders from both parties won't move forward with the recommendations of the Bowles-Simpson Commission. So instead of real solutions where we choose our priorities based on our values, we see political proposals that will only send this country further into a death spiral of debt.

Take for example the fact that this body will soon debate extending the so-called payroll tax cut for the remainder of this year, 10 more months. Let's call that what it really is: It truly is cutting funding to Social Security. This Congress has voted twice since I have been here to tell Americans that they don't have to pay their share as far as their obligation to Social Security. I voted for the idea the first time around because I thought, as it was proposed to me, it might create jobs or save jobs. But I don't think we have seen much evidence that that happened, so I decided to stop throwing good money after bad and stop jeopardizing Social Security. But, as I warned this fall, along with my dear friend Senator Mark Kirk, whom all of our prayers are with, now we are talking about extending this policy indefinitely because once something like this is enacted, even an act of Congress can't reverse it. It might take an act of God to reverse it.

I know going back home and saying we voted for tax cuts is popular. Everyone wants to be popular in this arena. But this is not a tax cut, this is a Social Security cut, plain and simple, and you cannot make it look any different. Knowing that we are adding 10,000 beneficiaries turning 65 years of age every day--and when you look at last year, Social Security was the first time we paid out more than we took in--it doesn't make any sense. Just what exactly will continuing this policy do to the long-term solvency of Social Security? The answer is very simple: It will be a disaster.

The so-called experts will tell you that everything will be right because we will backfill those contributions with revenue from the general fund. Let me remind you that this is the fourth straight year the general fund has operated with a deficit of more than $4 trillion. That has never happened in the life of this great country. We have accumulated $15.36 trillion of debt as of today, and the President just allowed that to grow to $16.4 trillion with a new debt ceiling. These are the same experts who tell us we can balance a budget if we simply ignore the fundamentals of math. Does that make sense?

When this body votes on whether to extend the so-called payroll tax cut or, as it should be more accurately described, the defunding of Social Security's revenue stream, I cannot in good conscience vote to undermine Social Security. I have taken this position because at the end of the day the people of West Virginia and this Nation must be told the truth, which is why the budget proposal the President offered this week is so disappointing and maddening.

Let's be clear. Both Republicans and Democrats are responsible for our budget problems. Everybody is responsible for where we are today. In fairness, this administration inherited a tremendous debt, falling revenues, and a terrible economy. Everyone was at fault, and the public spoke loudly and clearly. They changed things with the 2008 election, and they said: Fix it. But we haven't done it, and this budget doesn't do it either.

If we are going to address our fiscal nightmare and stop digging a deeper debt hole, we must have meaningful tax reform that not only ensures that everybody pays their fair share but that also strengthens our economy and creates jobs--good jobs. Instead, this budget is not balanced even once. Over the next decade, it would actually add an additional $6.7 trillion more debt on top of the $16.4 trillion debt ceiling we have now that the President just authorized. That is more than $23 trillion of debt by 2022. That is simply unsustainable.

This proposed budget relies too much on phantom accounting from so- called war savings from a war that should have been over when its purpose changed to what I call nation building.

In terms of energy investment--one area that business and labor both believe is critical to not only creating more jobs but keeping the good jobs we have--this administration continues to pick winners and losers. Take the role of coal, for example. As I just pointed out in the Energy and Natural Resources Committee, the administration's own Department of Energy forecasts that coal will play a major role in

the energy portfolio well into the coming decades, up through 2035. But this budget slashes funding for the research that would allow us to use coal more efficiently and cleanly with environmental standards for which we must be responsible. This doesn't make sense, and it puts the livelihoods of an awful lot of West Virginians and Americans in jeopardy. Those priorities defy common sense, especially when millions of people rely on coal for their jobs and the affordable, reliable electricity it produces.

We are spending more where we don't need to and less where we do. We are extending programs that do not work and going into debt to pay for them, and then we wonder why this great Nation faces such a dire fiscal future. So if and when the President's budget proposal comes up for a vote, I simply cannot support it. As always, though, I will continue to work diligently with my colleagues on both sides of the aisle to push for a more commonsense fiscal approach based on the bipartisan Bowles- Simpson template so we can finally and responsibly address the fiscal problems our Nation and our families face. I urge the President and my colleagues to do the same.

Madam President, allow me to close by saying I do travel my State, like most of my colleagues, and I am sure you do in Missouri. I meet with my constituents, as you do also, and I can tell you what I find out from them. There are a lot of issues they are worried about. There are some places where they disagree, but there is one issue that gets universal agreement and brings everybody together when they tell us, to a person, they are concerned that those of us in Washington are not listening to their cries to put the country ahead of our politics. They urge all of us to stand and do what is right for this country.

We must not let selfish ambitions about the next election cloud what must be done for the Nation that I know we all love. The challenge before us is a simple one. Over the course of our history, this Nation has succeeded because our parents and grandparents left our country better off than what they inherited from their parents and grandparents. We cannot be the first generation to fail to leave the United States in better shape for the next generation. I don't want to be a part of that. I do not intend to stand by and let a party or politics destroy the hopes of the next generation for this great country, and I urge all of our congressional leaders and our President to put politics aside and realize one simple fact: Whether we are Democrats or Republicans or Independents, we all belong to the same party, and that party is called America, and we will rise or fall together.

I thank the Chair.

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

Madam President, we hear a lot about tax breaks and tax loopholes around the Senate. I wish to talk about a tax loophole, a big one, that is on its way out. It is a $23 billion tax loophole. It is not a loophole in the tax code of Washington, DC. It is a loophole in virtually every State in the country. It is a loophole that prefers some taxpayers over other taxpayers. It subsidizes some businesses over other businesses. Because of that loophole, it causes tax rates in States to be higher, and it causes States to have less money to fund the universities or the State parks or the schools or the other expenses that are legitimate in the operation of a State.

I say it is a tax loophole that is on its way out because after 10 years, Senator Enzi of Wyoming and Senator Durbin of Illinois have produced a piece of legislation that is rare in Washington, DC. It is only 10 pages long. It is very simple. It is a States rights piece of legislation that gives each State the right to decide for itself how to collect its State sales tax from everybody who owes it, whether that person buys a pair of cowboy boots in Nashville or whether that person buys a pair of cowboy boots online.

Senator Enzi and Senator Durbin introduced the Marketplace Fairness Act 4 weeks ago. It has five Republican sponsors and five Democratic sponsors. I am one of those sponsors. This is the bill that solves the problem of the online sales tax loophole, the one I described a little earlier. I mentioned cowboy boots. Let me describe what I am talking about in practical terms.

I called the owner of the Nashville Boot Company a couple weeks ago. His name is Frank Harwell. He sold boots online, and he sells them to people who walk into his store in west Nashville. When he started the company, almost all of his boots were sold online. Here is what he says is happening to him today: People come into the store in Nashville and they try on cowboy boots. They find a pair they like and then they go home and buy the cowboy boots online in order to save the State sales tax.

They owe the sales tax. Many people don't know they owe it. They owe the sales tax as much as if they had bought the boots at the cowboy boot store in Nashville. They don't pay it. Why is that? Under the State law, when Frank Harwell sells a pair of cowboy boots in his store in Nashville, he collects the sales tax and sends it to the State.

But under the law, the Supreme Court said 20 years ago, the State of Tennessee or the State of Missouri or the State of Washington could not require an out-of-State seller to collect the same sales tax. They had a reason for doing so, and it was a good reason. They said it was so complicated to do that it put a burden on interstate commerce. But at the same time, the Supreme Court invited the Congress to fix the problem. By fixing the problem, that means the Congress could act in order to create a fair way for States to require retailers that are out-of-State to collect the same sales tax retailers on Main Street collect.

Over that 20 years, the online sales tax loophole got to be a big loophole. It subsidizes some businesses at the expense of others and, as I said earlier, prefers some taxpayers at the expense of others.

Last week, the Hudson Institute, a generally conservative organization, released a new report that explains how the subsidizing of out-of-State sellers works and how the Federal Government--those of us in Washington--are keeping States from closing this loophole. Hudson concludes that this online sales tax loophole is distorting the marketplace, and I urge my colleagues to take a serious look at the Hudson Institute report.

Governors and legislators are up in arms because they are being deprived of the right to enforce their own sales tax law. This is a little different loophole--actually, a little worse one. Usually, loopholes are written into the law. Those are the kind we are trying to change in our tax reform proposals in Washington. This is a tax that is already owed. This is a tax that is already owed that Governors and legislators want to collect. It is used to pay for the things States need to pay for or reduce a tax. In the State of Tennessee, which has a very high sales tax, if the State was allowed to collect sales tax from out-of-State retailers the same way it does from Main Street retailers, then we might postpone the day of a State income tax, which are probably three of the most hated words in the tax vocabulary in Tennessee.

I said, when Senator Enzi and Senator Durbin introduced their bill, that I believed they had solved the problem and that if I were an out- of-State retailer or an online retailer, I would begin to make plans to collect sales tax the same way Main Street collectors collect it today, and many have. For example, Amazon--which had opposed for a long time this kind of legislation because, in their view, it was too complicated for them to figure out what the tax might be--changed their mind, and said the Enzi-Durbin bill is a good bill and Amazon now supports it. That is not all. Mississippi Gov. Haley Barbour, a strong conservative Republican Governor and former chairman of the Republican Governors Association, wrote a letter on November 29 which I wish to quote:

In the early days of the Internet, the complexities of

collecting State sales taxes across thousands of State and

local sales tax jurisdictions were major obstacles. The

technology simply didn't exist to expect startups to comply

with the various tax compliance rules in every part of the

country. But today, e-commerce has grown, and there is simply

no longer a compelling reason for government to continue

giving online retailers special treatment over small

businesses who reside on the Main Streets across Mississippi

and the country.

Governor Barbour continues:

The time to level the playing field is now, as there are no

effective barriers to complying with state sales tax laws.

Here is what Governor Barbour is saying: Twenty years ago we didn't have the kind of software and information we do today. If I want to know what the weather is in Maryville, TN, where I live, I put in ``weather'' and my ZIP Code, 37886. Under this new bill and under the technology that exists today, States will be required to give out-of- State retailers or online retailers the software that will permit them to do the same thing. If I order a pair of cowboy boots, they can put in my name, the cost of the boots, and the ZIP Code, and the software will compute the tax and even find a way to send it on to the State. It will be just as easy, or maybe even easier, for the out-of-State retailers to collect the sales tax that is owed as it will be for a cowboy boots store selling it out of the front door in Nashville.

The National Governors Association sent a letter last week saying that the Enzi-Durbin bill represents a commonsense approach that will allow States to collect taxes they are owed, help businesses comply with different State tax laws, and provide fair competition between retailers that will benefit consumers.

Last week, the Judiciary Committee in the House of Representatives held an oversight hearing to discuss all three bills that have been introduced to address this issue and there was a lot of good discussion. I wish to share a few things that were said and I hope we can have a similar hearing in the Senate soon.

Mike Pence of Indiana, one of the leading conservatives in Congress and a fellow who knows a tax when he sees one, said:

I don't think Congress should be in the business of picking

winners and losers. Inaction by Congress today results in a

system that does pick winners and losers.

Congressman Pence also talked about something I want to make sure my colleagues understand. The Enzi-Durbin bill is not talking about taxing the Internet. It is not talking about creating a new tax. As far as the Internet access tax goes, the Senate debated that a few years ago. I was in the middle of that debate and I was in the middle of the solution that imposed a moratorium on the Internet access tax. That law is still there. We are not talking about an Internet access tax. Neither are we talking about a new tax. We are talking about the plain old State sales tax that already exists. It is very hard to imagine how anyone can say collecting a tax that is already owed is a new tax.

Governor Barbour and Congressman Pence are correct; 20 years ago the technology didn't exist. Today it does. About the only ones complaining are the taxpayers and businesses that enjoy being subsidized by other taxpayers and other businesses, and that, in our opinion, is not correct tax policy.

As Republicans, I believe our party should oppose government policies that prefer some taxpayers over others or some businesses over others. As Republicans, I believe we should support States rights, and our bill does that by giving the State the right to make the decision about how to collect its own taxes: Do you want to collect taxes from everybody who owes the tax, or do you not want to? Do you want to prefer some out-of-State businesses over in-State businesses, or do you not want to? Do you want to collect the tax, reduce tax rates, or spend the money on services? That is up to the States.

These sentiments are also shared by the late William F. Buckley and Al Cardenas, chairman of the American Conservative Union. Ten years ago William Buckley, who many people see as the father of the modern conservative movement, wrote in the National Review:

The mattress maker in Connecticut is willing to compete

with the company in Massachusetts, but doesn't like it if

out-of-State businesses are, in practical terms, subsidized;

that's what the non-tax amounts to. Local concerns are

complaining about traffic in mattresses and books and records

and computer equipment which, ordered through the Internet

come in, so to speak, duty free.

That is William F. Buckley.

Then Al Cardenas, the chairman of the American Conservative Union, a distinguished man from Florida, and the head of an outfit that is arguably as strong and influential as any conservative organization in Washington, said in his recent essay:

There is no more glaring example of misguided government

power than when taxes or regulations affect two similar

businesses completely differently.

As I have said many times before, I believe the Enzi-Durbin legislation solves the problem. I believe it is going to happen. I hope that out-of-State sellers and online sellers will move ahead to work with States to make voluntary agreements as, for example, Amazon has in Tennessee, and begin to allow States to enforce their tax policy properly.

Our bill is a remarkable feat in Washington, DC. I have mentioned it before and I wish to emphasize it again. It is only 10 pages long. It is only about allowing States to make a decision about whether they want to close a tax loophole. It is about stopping the subsidization of some taxpayers over others. It is about stopping the subsidization of some businesses over others. I am glad others are starting to share this view, and as more Senators learn about the Marketplace Fairness Act and look at the options it gives each State, I hope and I believe we will have more cosponsors.

Ten years ago the bills introduced weren't adequate to solve the problem. Fortunately, today, Senator Enzi and Senator Durbin have solved the problem. I agree, Democratic Senators agree, the chairman of the American Conservative Union agrees, a former chairman of the Republican Governors Association agrees, Congressman Mike Pence agrees: It is a matter of marketplace fairness.

I ask unanimous consent to have printed in the Record the letter to which I referred from Mississippi Governor Barbour, a letter from the National Governors Association, and the National Journal article published last week regarding the House Judiciary Committee hearing on this subject.

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

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 and would also ask unanimous consent that following my remarks, my colleague in this effort to fund transportation projects, Senator Hoeven, follow me.

Mr. President, we all understand that our country faces an array of major economic challenges, and I made the judgment quite some time ago that it was simply impossible to have big league economic wealth with little league transportation systems. All across the country--I know the distinguished Presiding Officer has seen this in Minnesota, where he has been doing good work on infrastructure and bridges--we have seen this in every corner.

When the Senator from North Dakota came to the Senate, I had the good fortune to begin to have discussions with him with respect to some new ways to address the question of how to generate funds for the critical transportation work that needs to be done and to generate those funds in a fashion that would be acceptable to the American people.

I think we all understand that with this kind of an economy and with skyrocketing gasoline prices, it is not very likely that folks will be marching outside our Senate offices anytime soon carrying signs saying: Senator, please raise the gas tax; that is what I hope you will spend your time doing. So we have this challenge given the fact that the traditional system of funding transportation--user fees--of course, in a tough economy, is going to be hard to suggest as a route to generate additional funds.

So for quite some time I have been devoted to the cause of trying to find a way to secure the possibility of getting additional funds through transportation bonds. They, of course, have been used at a variety of levels of government, particularly State and local, over the years.

About 8 years ago, I put forward the first proposal for looking at paying for transportation projects with our former colleague, Senator Jim Talent, a Republican from Missouri, and we called them Build America Bonds. Senator Talent and I thought at that time that this was an opportunity to come up with a fresh and attractive way to pay for transportation projects. We sought to work with the private sector to find some way to use Federal tax credit bonding for these projects, and over the years Senator Talent and I were able to attract a number of Senators on both sides of the aisle for this cause. To give an idea of just how bipartisan this effort has been over the years, Senator Thune, Senator Vitter, our former colleague Senator Dole, Senator Collins, Senator Wicker, and our former colleague Senator Coleman are just a few on the Republican side who were part of the effort. And on the Democratic side, Senator Klobuchar, our former colleague Senator Dayton, Senator Cardin, and Senator Rockefeller have been just a few of those who have supported the bonding efforts.

In 2009 the Congress decided to test a version of Build America Bonds. In effect, as a member of the Senate Finance Committee, I had brought it up so many times with Chairman Baucus and Senator Grassley, who was then the ranking member, I think the two of them said: Well, let's give this a try as part of the Recovery Act. In effect, it would essentially go from the middle of 2009 until the end of 2010.

Late in the evening, as Chairman Baucus and Senator Grassley were working to put together the details on the Recovery Act, I was asked what I thought might be the results of the Build America Bonds program, and I said: Well, it is not going to last all that long. It is going to take the Internal Revenue Service a period of time to put together the rules. And I said: I am just making this up, but why don't we just estimate that it might generate $6 billion to $10 billion worth of transportation and infrastructure investments.

Everybody said: It is an experimental program, sounds promising, go ahead. Let's give it a try.

Well, between April 2009 and the end of the program at the end of 2010, there was more than $181 billion worth of Build America Bonds issued. It was just a little bit more than 18 times what was predicted.

You don't often have this kind of challenge, but, in effect, one of the issues we had to deal with was Build America Bonds became so popular that there was an effort to use them for a variety of other kinds of projects, many of them very laudable but they were not projects that focused specifically on transportation, and, of course, that was the original intent of Build America Bonds. Also, there was no cap on them. Nobody realized they would be so popular.

So there was a concern that this was more than colleagues on both sides of the aisle had bargained for.

We do want to note that the Treasury Department issued their final report on Build America Bonds earlier this year, and they said that Build America Bonds issuers saved well over $20 billion in borrowing costs on a present value basis as compared to tax-exempt bonds.

So clearly there was something to work with in terms of trying to take the next step, and when the Senator from North Dakota arrived here, I said: It would be great to have an opportunity to work with a partner and look specifically at trying to rebuild the concept of focusing specifically on transportation in a way that would generate a substantial amount of new revenue and would be acceptable to colleagues across the political spectrum and those who follow these issues.

As the Senator from North Dakota knows, we have now come up with a new approach called Transportation and Regional Infrastructure Project Bonds. Chairman Baucus and Senator Hatch have been good enough to include them in the finance title of this year's Transportation Funding Program, and we wanted to take a few minutes to talk a little bit about how this would work.

Given the fact that we have been able to attract a number of folks on the progressive side of the political spectrum--folks in labor, for example--Doug Holtz-Eakin has issued a very helpful paper that I hope will also bring conservatives to this cause. We have shared that paper with Senators on both sides of the aisle.

The way the TRIP bonds would work is, first, they are tax credit bonds created specifically for transportation projects. We would allow infrastructure banks that already exist in nearly every State to issue these bonds. This time we are looking to really focus on the States. The States are the primary vehicle for ensuring that these projects would have local support and would really meet the long-term needs the States have identified.

We would pay for the bonds with a sinking fund comprised of State matching contributions and Customs user fees. In the proposal that was accepted by the Finance Committee, we would cap the total amount of bonds issued at $50 billion, giving each State 2 percent of the total. In effect, what the Finance Committee has done is put a placeholder in their bill for us to go forward with this effort.

Each State would get at least $1 billion in bonds to issue on projects at their discretion. States can also band together to bond for larger projects or ones that would have the benefit of addressing a concern of States in a region. This would give the States the incentive and the ability to invest in their own transportation and does so in a way that leverages private investment and costs little to our government in lost revenue.

We would give private investors who show a willingness to help build our roads, bridges, and rail systems a tax credit for their commitment. What Build America Bonds taught us is that there is a real market out there, and what we would like to do is look at a different approach now, focusing on the States, focusing on an approach that would drive these projects, not in Washington, DC but at the local level.

The Joint Committee on Taxation has told us this is an approach that would produce a particularly good deal for American taxpayers.

We can get a transportation bill done. We can put folks back to work. But we are going to have to find a way to come up with more creative approaches to generate additional revenue. If we do not, I think we are going to continue to see, in every corner of the country, critically needed projects simply go unaddressed. We are going to continue to see traffic jams in areas of the country nobody could have even dreamt a traffic jam would be.

I hope Senators, as we go forward with this debate, particularly after the President's Day break, will join my colleagues. Senator Begich has been very supportive of this approach as well. We think this is an approach with a proven track record given what we saw with Build America Bonds. We believe this is a chance to take the lessons we learned from that experience and, by changing the focus so it zeros in more directly, one, on transportation, two, on the States, and looks to some creative features--it is possible, for example, for someone to strip the credit from the underlying bond and to sell the credit--so this provides a lot more flexibility in terms of finding a way to get the private sector into the transportation area.

I hope my colleagues, when we come back, will be supportive of this effort. It has won, as I have indicated, support from across the political spectrum.

I want to thank my partner from the State of North Dakota. I have very much enjoyed working with him both on the Energy Committee and on this issue. As a former Governor, I think he understands particularly well the role of the States in terms of infrastructure.

We will be talking to colleagues between now and the time the Transportation bill comes up, and I thank my friend from North Dakota for his support.

With that, I yield the floor.

Mr. President, I ask unanimous consent to proceed for just 2 additional minutes. I see our friend from Iowa is in the Chamber.

Mr. President, I thank my colleague from North Dakota for his statement. This is bipartisan. It is a bicameral effort. My colleague's point at the end, in terms of our being open to additional ideas and suggestions, is particularly appropriate.

What the challenge is going to be on this transportation issue for years to come is to try to find a way to generate the additional money for the work that needs to be done in a fashion that is acceptable to the American people. If it was so easy, everybody would be just ripping through one idea after another.

The two of us have spent many months trying to take the lessons we have learned from the Build America bonds effort to try to come up with a fresh approach, a fresh bipartisan approach, that would be acceptable to colleagues on both sides of the aisle. We think we have done it. We do not think this is the only way. We are certainly open to ideas and suggestions. But the model of trying to focus on the States, to build on the support we have from folks in business and labor unions, and a whole host of groups at the local level--mayors and county commissioners--strikes us as the way to go.

We are open to additional ideas and suggestions. Our staffs will be working all through this week, the period of the President's Day recess, to refine our proposal, to deal with the various issues related to scoring. But this is a genuinely new approach to generating revenue. It is bipartisan; it is bicameral, with the support of folks in labor and business. We hope colleagues will be supportive, and we are interested in their ideas and suggestions over this period between now and when we start voting on the Transportation bill.

So, again, I thank my friend from North Dakota. It has been great to work with him.

I yield the floor.

Madam President, I thank my friend and colleague, the distinguished chair of the committee, for her work in managing this bill. This is a huge bill. It has many titles. It is a complex bill. It is a totally vital bill. Both on this floor and off this floor, she has been advocating and pushing and doing what is necessary. I want to say thank you very much to my friend and colleague, Senator Boxer.

Madam President, let me describe what happened in 2008 in Chatsworth, CA. On September 12, 2008, Metrolink commuter train 111, carrying more than 200 people, departed the Chatsworth train station about 4:20 p.m. Heading west, the commuter train ran through a train signal at 44 miles per hour at about 4:22 p.m. and 2 seconds. The train signal showed red, for stop.

At the same time, a Union Pacific freight train, weighing four times the weight of the commuter train, was heading east on the same track. It exited a tunnel with little time to react to the oncoming commuter train. Both trains were on the same track going in opposite directions, each going roughly 40 miles per hour. The trains collided head on.

The carnage was unspeakable; 25 people died. Their bodies, many torn to pieces, had to be extracted from heaps of steel and wreckage.

This is the scene. This is the commuter train. This is the freight train. This is the car that essentially chopped apart 25 people.

As Superior Court Judge Peter Lichtman wrote:

These were teachers, Federal, State, municipal employees,

business owners, executives, artists and students that were

all lost on that day.

Many families were left without any provider, not to

mention the loss of a mom or dad.

Another 101 people were injured, many of them very seriously. Volunteers and rescue crews worked valiantly to pull them from the wreckage.

You can see this overturned train here. You see the rescue crews. It was a terrible, terrible scene.

Judge Peter Lichtman described many of these injuries. Passengers seated at table seats suffered ``horrible abdominal injuries that could not be medically resolved.'' ``All of the bench passengers were launched head [or] face first into a bulkhead.'' ``Almost all of these passengers suffered traumatic brain injuries to varying degrees.''

Let me explain how and why this happened. Seconds before the crash, the train's engineer was text-messaging on his cell phone. He was the only personnel aboard that train when he looked down to send a text to a teenage boy. This was one of 21 text messages sent by this engineer this day. He received 20 secretaries messages and made four outgoing telephone calls, all while he was driving a large commuter train.

According to the NTSB's comprehensive report on the crash, this behavior distracted the engineer and caused the collision. It led to the train running red signals. In fact, NTSB found the passenger train's engineer never even hit the brakes before impact. NTSB found that a crash avoidance system would have stopped the train and prevented this disaster, but, unfortunately, the tracks in Los Angeles had and have no such system nor do most tracks in the United States.

As a result of this accident, 25 people died and 100 people were injured. The statistics about the Chatsworth disaster do not begin to tell the story. Perhaps I might be able to better put into words what is at stake in this debate in one of the votes we will be taking about positive train control by telling you a little bit about Kari Hsieh and Atul Vyas.

Eighteen-year-old Kari did not want to trouble her father to drive her from the family's Newhall home to a restaurant in Simi Valley, so she took the train. In October 2008 she became one of many young people killed in this crash. She was just starting her senior year at Hart High School and looking forward to a career in medicine, according to her family. She played tennis for the school and was well liked by her classmates who described her as warm and caring. ``Anyone who knew her can remember her by her beaming smile and infectious laugh,'' one of her classmates told the Los Angeles Times.

Here she is.

``She had such a positive outlook on life and always had something nice to say about everyone,'' wrote a parent of a varsity tennis player. ``I feel blessed to have been part of her life.''

Then there is Atul Vyas, a student at Claremont McKenna College, who was studying to become a doctor. At 20 years old, he was in the process of applying to graduate programs at MIT, Duke, and Harvard. He scored in the top 1 percent of his medical school entry exams, but he was having trouble answering one question on applications: Describe a hardship you have overcome.

``He said `I have not had any.' I have had a blessed life,'' explained his father. Atul never finished that application nor did he reach his goal of medical school. He took Metrolink train 111 home to visit his family as he did every 2 to 3 weeks, but he never made it home because an engineer was texting.

As the NTSB found, these young lives and the lives of 23 others could have been saved if crash avoidance technology, known as positive train control, had been in place. In 2008, Congress finally required railroads to deploy positive train control, which the National Transportation Safety Board had placed on its top 10 most wanted safety technologies listed since 1990. This body gave the railroad industry 7 years to deploy positive train control crash avoidance systems nationwide. The leaders of Southern California's Metrolink, Union Pacific, and BNSF railroads each committed to deploy positive train control systems in Los Angeles years earlier than the national mandate. These railroads are still on track to deploy the system next year.

I met yesterday with John Fenton, the new CEO of Metrolink, and Matt Rose, the CEO of BNSF. They both indicated their desire to make their highest priority positive train control, and I thank them. Metrolink is going to go ahead with it as soon as possible regardless. BNSF told us if they delay--if this bill delays it, they may take an additional year.

I salute both of them for their support of this program. However, I am very alarmed that others in the railroad industry and in Congress diminish the value of positive train control.

As a matter of fact, the bill we will most likely be voting on--in one of its titles, the commerce title--delays positive train control until 2018. The House bill delays it until 2020. When the technology is there, despite its complications of installation, when you have high- risk lines, freight lines and commuter lines traveling in opposite directions on the same track, and when you have human frailty--in this case one engineer texting aboard a commuter train of a couple of hundred people--the only answer to assure the safety to the commuter trains of this Nation, in my view, is positive train control. I view it as an emergency need. The NTSB views it as an emergency need.

According to them, scores of deadly accidents across the country since 1970 could have been prevented if positive train control in effect were installed. I agree strongly with the NTSB Chairman, Deborah Hersman, whom I happen to know, who recently wrote to the Congress that:

The NTSB will be disappointed if installation of this vital

safety system to prevent fatalities and injuries is delayed.

The need to extend the 2015 positive train control deployment deadline has not been demonstrated. The Senate Commerce Committee has held no hearings on this issue and no published reports investigating this question have recommended an extension, according to the NTSB experts.

Furthermore, every railroad has submitted an approved plan to meet the 2015 deadline to the Federal Railroad Administration, and the administration is preparing a report to Congress on positive train control deployment progress this year, which should provide us guidance on that effort to date.

I think Congress should consider the FRA's findings carefully before scaling back or delaying a system that can prevent crashes such as Chatsworth. And there have been three prior crashes that have taken lives on this Metrolink system. These are not isolated. They happen. We now have a technical system that can be 100 percent proof-positive to provide safety. So I am very concerned that without a national strategy, deployment of positive train control in southern California will become more difficult. There will be excuses, and there will be a lessening of effort. And both BNSF and Metrolink have made very strong efforts to comply with 2015. Why change it? The Los Angeles area is a huge commuter area, and when it is not necessary to change it, why do it? The national requirement to deploy the system by 2015 creates a substantial incentive for industry to develop new and cost-effective technology that lowers the deployment costs for everyone, including Metrolink.

The national strategy, which will hopefully be presented in the FRA's 2012 report to Congress, could play a significant role in addressing positive train control deployment barriers. This system can prevent human error from causing collisions, dangerous releases of hazardous materials, and passengers and train crews from being killed and injured.

So I make these remarks today in the hopes that there will be support in this body for the 2015 deadline. And I really appeal to the committee that right now it is locked in at 2018--we have tried, we have talked to the staff, and we have been rejected--to understand that what they are delaying is a device that saves lives, and there is no excuse for so doing. The case has not been made to do so. The hearings have not taken place, there was no markup to add this, and I strongly believe it should not be delayed in this bill. I hope Members will listen. I hope they will respond. Hundreds of thousands of commuters are at risk until this system is put into place.

I yield the floor.

Mr. President, today I have submitted an amendment to the pending surface transportation reauthorization bill.

Community colleges are a critical source of education and job training for many individuals. Nationwide, we have 1,655 community colleges, which enroll nearly 6 million students. These community colleges will play a big role in helping Americans develop the skills to be competitive in our 21st century economy.

In light of the President's call for job training assistance, it is imperative that we support programs that help workers meet the new demands of our economy. My amendment does just that.

This amendment ensures that transit agencies that partner with community colleges on job training programs are eligible for Federal grants.

By supporting collaborative job-training programs between community colleges and transit agencies, we support our workforce in gaining valuable technical skills, while also supporting industries that are facing a workforce shortage.

I will urge my colleagues to vote for this amendment to ensure that we are supporting our workers in getting a valuable education and supporting an industry that is facing a critical workforce shortage.

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

Mr. President, I am here on the floor today to talk a little bit about our economy and something that I think is very important that has been left unaddressed in this payroll tax compromise that I think is a real tragedy for our country and for my State, the State of Colorado, and, most importantly, for people who are suffering through this incredibly difficult economy.

It is not well understood by people--I think maybe even in this Chamber--that our country's gross domestic product--the economic output of our country--is actually higher today than it was before we went into this recession. We saw it rising all the way in the 1990s and 2000s, and then we had the worst recession since the Great Depression. Now we are seeing economic output that is actually at a level that is higher than it was before we went into the recession.

Our productivity is higher today than it has been at any time in the history of the United States of America. It has become fashionable to talk about what has happened or not happened since the founding of our country. Since the founding of our country, our economy has never been more productive than it is today, and there are several reasons for that. Competition from abroad that has become a daily occurrence-- something we have to fight hard every day to stay ahead of--has driven productivity. That is a good result. Technology has driven productivity. That is a good result. And the recession itself drove productivity straight up. As our business men and women of this country did what they had to do to get through this incredibly tough economic time to keep their businesses alive, to keep their doors open, to keep a promise to the next generation of Americans, productivity went ever skyward. That is a good result. That is progress. And we are only going to become more productive over time as we face competitive threats from around the world.

But we can see what else has happened over this period of time. Median family income has fallen over the last decade for the first time in our country's history. The middle class is earning less today in real dollars than in the early 1990s. And, as the President knows, we are producing this economic output with 23 or 24 million people who today are unemployed or underemployed in this economy. There are no jobs for these Americans in this economy even though our output is as high as it was before we went into this recession.

There are a lot of people smarter than I am who could figure out the answers to this, but there are at least two big ones we have to keep in mind. The first one is education because the worst the unemployment rate ever got for people with a college degree during this recession was 4.5 percent. That is the worst it got for people who had a college degree, who could compete in the 21st century, even in the worst recession since the Great Depression.

As I have said on the floor of this Chamber that has 100 seats, 100 desks, if we were poor children living in the United States of America today, only 9 of these 100 seats would represent college graduates because 91 of 100 poor children in the United States in the 21st century cannot get access to a college degree. So that is job No. 1, to keep a promise to the next generation of Americans.

I think job No. 2 needs to be driving innovation and job growth in this economy, which is what has brought me to the floor today because we are failing in this package, among other things, to extend the wind production tax credit which cuts right to the core of whether and how we want to compete in the 21st century in this global economy.

For people here or elsewhere who think these jobs aren't real in the wind industry, I brought some pictures. I brought some pictures of a manufacturing plant made in America--made in America--in this case, in Brighton, CO--a manufacturing plant, the towers from which wind turbines are going to be hung, driving electricity and jobs in the United States. So we are not talking about some fly-by-night, experimental industry. This credit has triggered enormous economic growth in Colorado and across the country.

Congressman Steve King, a Republican from Iowa, wrote today in an op- ed that he published that ``the production tax credit has driven as much as $20 billion in private investing.'' This isn't some Bolshevik trick, some Socialist trick; it is $20 billion in private investment in real American manufacturing jobs.

Wind power accounts for more than one-third of all new U.S. electric generation in recent years. In Colorado alone, I can tell you it has created 6,000 jobs in my State. It has moved our State toward a more diversified and cleaner energy portfolio, so that Colorado today is a leader among the 50 States in diversifying our portfolio.

Let's be clear. We have oil and we have coal and we have natural gas. We have abundant wind and abundant sun and entrepreneurial horsepower all across the Front Range. What we don't have is Washington's cooperation. What we don't have is the decency of people coming together and doing better than just keeping the flickering lights on in this place.

It is because they can't get any certainty out of Washington that developers and manufacturers are starting layoffs already in anticipation of the credit expiring at the end of this year. This is the result of nothing other than our political dysfunction in Washington.

Vestas, which has a huge manufacturing footprint in Colorado--from Windsor all the way south to Pueblo--is poised to lay off 1,600 workers if we fail to act. Iberdrola Renewables, also doing business in Colorado, has already laid off 50 employees for no reason other than our inability to get our work done. Nationally, 37,000 jobs are at risk, not to mention the ones we could have created after 2012 but won't if we let this credit expire.

I brought a couple of other pictures just to make sure people know this is distributed all over the United States.

This is Pennsylvania and Texas.

I know I sound like a broken record when I say this because I have said it over and over on this floor, but we should not be confused that the rest of the world is somehow waiting for us to get our act together, that they are somehow waiting for us to cure our politics and do something that will actually solve those curves that I mentioned earlier and put Americans back to work manufacturing in jobs that are actually driving middle-class family

income up, rather than down, which is what we are doing today.

Our largest single export from the United States of America is aircraft. We export $30 billion a year. China's export of solar panels last year was $15 billion--half our largest single export. They didn't export one solar panel 10 years ago, and we invented the technology here in the United States. In fact, some of us believe we invented that technology in the State of Colorado. I am sure the Chinese would love to have this business as well. And my concern is not that this is a temporary interruption in our wind industry but that this will become a permanent shutdown of our ability to drive economic growth across the United States. This is a perfect example of an industry that can move this employment level back up, an industry that we don't have today, one that is in its infancy but 50 years from now or 20 years from now may be driving significant employment growth across the United States of America. This is an industry that, by the way, would drive this curve up as well.

I met a young man in Logan County not long ago. He was working--he was giving me a tour on the top of a wind turbine. I was standing on the very top of the box. It was about 10,000 feet in the air--or it felt that way to me. I was wearing the shoes I am wearing right now on the floor of the Senate, which is not what you should wear when you are on the top of a wind turbine, swaying in the wind. He told me he would be unable to live in his home community and raise his family in his home community if it had not been for that job, a job he could not even have imagined there being 5 years ago. And there it is today.

These are high-quality, high-paying jobs in the United States of America. It would seem to me the Congress ought to figure out a way to support these industries. I actually do not believe any of these kinds of credits should be permanent. I want to be clear about that. I think we would be doing ourselves and the country a service if we designed them in a way that phased them out over time, because at a certain point every business has to sink or swim based on its merits. We are ``this close'' to being there with wind production and we are ``this close'' to turning it over to the rest of the world.

This is not a partisan issue. This is not a partisan issue. Last week Republicans and Democrats from the Colorado delegation came together in the House and the Senate to urge a quick extension as part of the payroll deal. I know my colleagues Senators Harkin and Grassley did the same with the delegation from Iowa.

I ask unanimous consent to have those letters printed in the Record.

As I recall, Senator Grassley actually was the one who wrote this to begin with. We have also recently filed an amendment, a bipartisan, fully paid for, 1-year extension of the credit to the surface transportation

bill. I thank Senator Moran, a Republican from Kansas, for joining me to lead on that amendment.

There is plenty of support out there for us to get this done. More important than that, if we do not act, there are thousands of people who are going to have to go home to their families and say they were laid off from their job for no reason other than the political dysfunction here in Washington, DC.

I think enough is enough. I cannot tell you how much I look forward to a time when we have a thoughtful, bipartisan, fact-based tax reform in this country; when we are thinking about our Tax Code and our regulatory code and asking ourselves: Are we driving job growth here in the United States with these policies? Are we driving up middle-class family income with these policies? Are we addressing the income inequality gap by having an economy that truly does lift all ships and, as the President would make the point, are we dealing with the fiscal challenges this country faces so we do not strap our kids with this mountain of debt?

I know there are people on both sides of the aisle who are anxious to work on this, but we have failed that test in this compromise measure. It is my hope that at some point in the near future we can get a vote on this amendment, Senator Moran's amendment, and we can put Americans back to work in these industries before we lose them forever.

Mr. President, I ask unanimous consent to speak as in morning business for 10 minutes and that I be followed by the Senator from Texas, Mr. Alexander.

What did I say? From Tennessee. Whatever I said, I apologize. I said Texas. I apologize.

Mr. President, I need to speak for a few minutes this morning about two important news events of this week: the budget that was submitted by the President and the news reports that the President is considering reducing our nuclear arsenal to dramatically lower levels than they are today. Let me speak to both those subjects briefly this morning, and then I will have more to say about them as time goes on.

In the President's budget, there is a specific part for the Department of Energy that funds the nuclear weapons program. Despite promises of the President that he would follow what is called the 1251 study over the course of his Presidency and request in the budget the sums of money for the Department that is called the NNSA--part of the Department of Energy--he reduced that this year by $372 million less than the target. The net result of that over 5 years is going to be $4.3 billion.

I know my colleague from Tennessee is very interested in this. Before the START treaty was debated, there was a big debate about whether the funding for the NNSA in the nuclear modernization program was adequate.

On the Veterans Day recess, before we began the debate on START, General Chilton, former head of STRATCOM, and Dr. Miller, the Assistant Secretary of Defense, flew to Phoenix and said to me: You were right. We were wrong. We have underfunded this by over $4 billion. We are going to add that to our 5-year budget profile.

This was the argument we had been making all along: You have underfunded the nuclear modernization program. You need to add between $4 billion and $5 billion to it. They agreed and that is what went into the revised 1251 report.

As a result of the budget request this year, we are right back where we started from before the revision--$4.3 billion below--and that is where we were when the administration came forward and said: You were right. We were wrong. Our previous figure was not enough.

So we have a problem, and it is going to cause some real disruptions.

One of the things we have to do is extend the life of one of our old weapons called the B 61. This is a 2-year delay now on that, a 2-year delay on another warhead called the W 76, at least a 5-year delay in the construction of the plutonium processing facility at Los Alamos Laboratory called the CMRR facility.

Why is that important? We knew prior to commitments the President made before the START treaty was debated that the CMRR was critical. We do not have a production capacity. Unlike Russia and China, for example, we cannot produce new nuclear weapons. We have to go back and revise the ones we have. One of the facilities that would enable us to do that is this CMRR facility. In fact, that is where a great deal of the work would be done.

What we were told was that the President was fully committed to constructing this facility on a timetable set out in the 1251 report. Some of us were a little dubious. The President's representative said: We will put it to you in writing. So he did. What he said in his message on the New START treaty to the Senate with regard to this facility--I will quote it; the letter related to his intent to modernize and replace the triad:

[To] accelerate to the extent possible, the design and

engineering phase of the Chemistry and Metallurgy Research

Replacement (CMRR) building and the Uranium Processing

Facility (UPF)--

That is the facility for uranium processing at Oak Ridge, TN--

[and to] request full funding, including on a multiyear basis

as appropriate, for the CMRR building and the UPF upon

completion of the design and engineering phase for such

facilities.

We were concerned he would not request the funding in the outyears and that they would not accelerate the construction of these facilities. So he said he would. He would accelerate it to the extent possible and request full funding, including on a multiyear basis.

The budget he submitted this year breaks that commitment to the Senate, and those Senators who voted for the treaty based upon these commitments are obviously going to be reevaluating their support for the treaty. There are things that can be done by the Congress, including our power of the purse, to deal with the issue, which I will hope to have time to speak to in a moment.

Former Secretary Gates reflected on the Senate's reliance on these commitments when he said:

This modernization program was very carefully worked out

between ourselves and the Department of Energy; and, frankly,

where we came out on that played a fairly significant role in

the willingness of the Senate to ratify the New START

agreement.

For those who relied on the administration's commitment, they have been broken. We are right back to where we started from before the treaty was taken up.

If you want to know specifically what the problems are, Dr. Charles McMillan, the Los Alamos Director said:

Without CMRR, there is an identified path to meet the

Nation's requirement of 50 to 80 pits per year . . . the

budget reduction in FY13 compounds an already difficult set

of FY12 budget challenges and raises questions about whether

we can meet the pace of the modernization path outlined in

the 2010 Nuclear Posture Review.

So we have a problem. Unless the President is willing to work with Members of Congress, and unless Members of Congress are willing to recognize that the Senate acted based upon some commitments the administration made and we have to keep our end of the bargain as well, we are going to find a huge problem with our modernization program, with our nuclear weapons

program, and all that portends with respect to our deterrent capability.

Now, let me turn to the other news of the week. The President's people confirmed that, yes, they are, in fact, studying whether we can reduce our nuclear warheads. Remember, we were at 1,500 for START, and an 80 percent reduction could take us down to 300. That is almost unthinkable, especially in today's environment where we have Russia and China with new production capacities. They are developing new nuclear weapons and producing them.

We are not designing or developing any new nuclear weapons. We have no plans to do so, and we have no production capacity to make them, even if we did. The capacity to refurbish the old ones is now going to be delayed another 5 years. So why would we be thinking about reducing our warheads even further under these circumstances? Well, some people say, with a robust missile defense program, and by upgrading our conventional capabilities, we might think about this. The problem with these two assumptions is, this budget cuts both of them dramatically as well. We are not enhancing conventional capabilities, we are drawing them down, which, by the way, is what has caused the Russians to rely much more heavily on their nuclear program.

What about the people who rely on our nuclear deterrence, the 32 countries that rely on our nuclear umbrella? If they see this, my guess is they are going to look at what they might do to develop their own weapons: So much for nonproliferation. What about the idea that countries that now have close to 300 weapons could become peers of the United States? How is that for strategy, to have Pakistan, which will soon have more weapons than Britain does, to have as many nuclear weapons as the United States?

That is not exactly the most stable place in the world today. Iran is developing its capability. North Korea already has it. The Chinese are already at roughly this level and improving their capability. Of course, Russia is much above it and talking about actually building more nuclear weapons, not fewer.

The Deputy Defense Minister in Russia recently said, on February 6:

I do not rule out that under certain circumstances, we will

have to boost, not cut our nuclear arsenal.

Now we are talking about reducing ours. How are we going to convince the Russians to reduce theirs? I presume this is all going to be done in some kind of additional treaty with the Russians, not likely to occur.

To me, what is most bothersome is that one of the arguments that nuclear opponents have always had is that we never want to get to a point where our doctrine, instead of holding hostage the military capability of any would-be adversary, would be to hold civilians hostage, innocent civilians. That is precisely what happens when instead of having enough nuclear weapons to cover all of the military targets of a potential adversary, we end up having only enough weapons to hold hostage the cities of our potential adversary and thus the civilian population of those countries.

That is not a moral deterrent. As a result, I think we have to think very carefully about this prospect of reducing our nuclear weaponry. We, obviously, have to do a lot more work on this issue in the Congress. As I said, we have some means of expressing our views to the administration. I think it needs to think very carefully about this. To the extent that it thinks it is going to solve or going to help with our financial crisis, reducing the number of warheads, unfortunately, does not reduce a lot of expense. It is a little bit like the BRAC Commission. So that cannot be cited as a reason to do this.

Finally, nor is there any prospect that we can serve as a moral example to other countries in the world by reducing our warheads to that level. The START treaty was supposed to be a new reset showing the world, through our moral example, the benefits of reducing warheads. Not a country in the world has reduced warheads since the signing of the New START treaty except the United States. Russia has not, China has not, Pakistan has not, our allies have not, and Iran and North Korea talk about expanding their programs.

So this is based on a very shaky proposition of benefits which are very unlikely to occur, and it is fraught with dangers that we must debate in this country before the President simply unilaterally decides to make such a drastic change in American policy.

We will have more time to discuss this in the future. Given the fact that these two events were kicked off this week--the President's budget and this latest announcement--I thought we should at least have a preliminary discussion of it on the floor of the Senate today.

I yield to my colleague from Tennessee.

Mr. President, are we in morning business or do I have to ask consent to speak as in morning business?

I ask unanimous consent to speak as in morning business.

Mr. President, I came to the floor previously to speak about President Obama's unconstitutional appointments of Richard Cordray as Director of the Consumer Financial Protection Bureau and of three new members to the National Labor Relations Board. I spoke about why this blatant overstep of executive authority violates the President's right to make recess appointments under article II, section 2 of the Constitution. I described its unequivocal reversal of years of precedent which the Obama Justice Department's Office of Legal Council has since defended, essentially stating that pro forma sessions no longer matter.

This issue is far from over. We cannot allow it simply to go away and the illegal appointments must eventually be set aside.

The 23-page Justice Department opinion, written by Assistant Attorney General Virginia A. Seitz, wrongly advises that, despite the convening of pro forma sessions, the President ``has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.'' Under this misguided opinion, the Obama administration is suggesting that the executive branch--not Congress--can determine when the legislative branch is in session. The egregious overreach undermines the checks and balances at the very heart of our Constitution.

I am deeply concerned that this presumptuous action by the President poses profound and dangerous implications. As others have suggested, President Obama's abuse of his recess appointment power could lead to unilateral ``recess'' appointments anytime, such as during lunch or in the middle of the night. This is not that far fetched.

As I said before, it is my hope that both parties will rise to defend the separated powers our Founders put in place to prevent tyranny and the misuse of authority.

It is worth repeating that the controversy surrounding the President's non-recess appointments has nothing to do with the personal character of Mr. Cordray or of those named to the National Labor Relations Board. Nor is the debate over appointments when the Senate is in recess. What the President has done transcends party issues and ideological divides.

A day after the appointments were made, former attorney general Edwin Meese III and former Office of Legal Counsel lawyer Todd Gaziano wrote in the Washington Post that President Obama's move is ``a constitutional abuse of a high order.'' It challenges 225 years of executive practice.

The Constitution is very clear in its delegation of powers. It explicitly grants the Senate the exclusive responsibility to give ``advice and consent'' on treaties and nominations. It endows the President with the right to fill vacancies when the Senate is not in session--a provision conceived by the Framers as a way to keep the government operational when the ability of Senators to communicate with the executive branch and travel back to the Capitol took much longer than today.

Of course, it is disappointing that President Obama has dismissed the will of the Senate, which rejected Mr. Cordray's nomination in December.

But never before has a President assumed the authority to issue recess appointments when the Senate is not in recess. In doing so, the President is violating the Constitution plain and simple, and invalidating the legitimacy of his appointees. It stands to reason that any decisions of the CFPB or NLRB will be subject to the same shroud of unconstitutionality and legal contest.

The Constitution and nearly a century of legal opinion provide a solid basis for determining the parameters of what qualifies as a legislative ``recess,'' which is required for the President to invoke his appointment privileges.

Under Article section 5, clause 4 of the Constitution, the House of Representatives must grant its consent in order for the Senate to adjourn longer than 3 days. The Senate must do the same for the House.

It is an undisputed fact that the House of Representatives did not give this chamber that consent and, in keeping with the Constitution, this Senate did not adjourn for more than 3 days.

The President's claim that a brief adjournment can be called a ``recess'' goes against 90 years of legal opinion. In 1921, President Harding's Attorney General Harry M. Daugherty had this to say about what defines a recess: ``[N]o one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment [of two days] is taken. Nor do I think an adjournment for 5 or even 10 days can be

said to constitute the recess intended by the Constitution.''

Since then, Attorneys General and Presidents of both parties have agreed that at least 10 days should pass before a recess is acknowledged.

And yet, as we are aware, there were not 10 days of adjournment when President Obama made his four appointments. We were holding pro forma sessions--proceeding just as the Senate did in 2007, when Majority Leader Reid wanted to block President Bush from making recess appointments--and succeeded in doing so. As Edwin Meese and Todd Gaziano acknowledged in their op-ed, ``Reid was right, whether or not his tactics were justified.''

Michael McConnell, a former Federal judge and director of the Constitutional Law Center at Stanford Law School, came to the same conclusion. Last month, he wrote in the Wall Street Journal:

Several years ago--under the leadership of Harry Reid and

with the vote of then-Sen. Obama--the Senate adopted a

practice of holding pro forma sessions every three days

during its holidays with the expressed purpose of preventing

President George W. Bush from making recess appointments

during intrasession adjournments. This administration must

think the rules made to hamstring President Bush do not apply

to President Obama. But an essential bedrock of any

functioning democratic republic is that the same rules apply

regardless of who holds office.

It is appalling that the Obama administration would call into question the entire legitimacy of pro forma sessions when, less than two weeks before the appointments, the President signed into law the payroll tax extension that the Senate had passed in such a session.

What makes the business conducted during the pro forma session on Dec. 23 any different from the pro forma sessions that came just days after? Based on this case, it appears the validity of a Senate session is subject to the President's whim. He signs legislation passed in one pro forma session. He concludes that another pro forma session did not exist at all.

In the same op-ed to the Washington Post, Edwin Meese and Todd Gaziano concluded:

If Congress does not resist, the injury is not just to its

branch but ultimately to the people. [And that is what is

important.] James Madison made clear that the separation of

powers was not to protect government officials' power for

their sake but as a vital check on behalf of individual

liberty.

Indeed, the forefathers of this country were candid about the crucial link between the separation of powers and freedom itself.

As Madison wrote in essay No. 48 of The Federalist:

It is agreed on all sides, that the powers properly

belonging to one of the departments ought not to be directly

and completely administered by either of the other

departments. It is equally evident, that none of them ought

to possess, directly or indirectly, an overruling influence

over the others, in the administration of their respective

powers. It will not be denied, that power is of an

encroaching nature, and that it ought to be effectually

restrained from passing the limits assigned to it.

As elected public servants, we are bound by our oath of office to uphold and preserve the principles of the Constitution.

To do that, we must guard the sanctity of the decisions made and privileges held by this chamber. Our government's separation of powers is not an antiquated idea but a timeless safeguard to liberty.

In 1985, Sen. Byrd, the Democratic Majority Leader from West Virginia, wrote in a letter to President Reagan:

Recess appointments should be limited to circumstances when

the Senate, by reason of a protracted recess, is incapable of

confirming a vitally needed public officer. Any other

interpretation of the Recess Appointments clause could be

seen as a deliberate effort to circumvent the Constitutional

responsibility of the Senate to advise and consent to such

appointments.

Where are the Robert Byrds today?

Those who served before us provided precedent and wisdom to address our problems today. They defended the constitutional duties we are now entrusted to protect. Is there not one Democratic Senator who will step forward to defend the constitutional principle of separation of powers?

The President has made no secret of his contempt for Congress in recent months. His campaign rhetoric is heavy with ``do-nothing'' accusations.

The President is certainly free to engage in election-year hyperbole. But he is not free to overstep the constitutional limits of his office. I can think of a number of other priorities demanding our undivided attention right now--fixing the economy and putting Americans back to work are top among them. Yet in order to address these challenges, we need a working relationship between the legislative and executive branches. The President's power grab undermines the very constitutional foundation of this relationship.

I urge Members from both sides of the aisle to call for President Obama to rescind these appointments. Regardless of our party allegiances, we are united by a pledge to serve the American people. That is what motivated Robert Byrd earlier, and it is what ought to motivate us today. Keeping that promise means standing for the sanctity of our country's founding document and the integrity of this institution.

I thank the Chair.

I yield the floor and note the absence of a quorum.

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

Mr. President, I have come to the floor to talk about a topic I spoke a little bit about yesterday.

I know all the focus right now is working on a solution to some of the things going on between the House and the Senate. I know that is what people are focused on today. I understand that probably sometime tomorrow there will be a vote on the highway bill, which is expected to fail, and then it is my understanding there will be some amendments brought forth to bring a finance bill, an EPW bill, a commerce bill, and a banking bill together that will actually be debated and, it is my sense, will ultimately pass, but that after the recess is over we will come back and deal with that.

I wish to speak to that topic now. I know I am beginning to sound a little

bit like a broken record on this, but we have had so many people down here on both sides of the aisle who have actually worked together, for a year and a half after the Bowles-Simpson report came out, on long- term deficit reduction, progrowth tax reform, and entitlement reform, and there seems to be a real seriousness about that issue. I think all those who have signed letters in support of it were very sincere. Yet I think what we are finding with this highway bill, in spite of the changes that are likely to take place with the finance component, is that what we are ending up with is a situation where we have 2 years' worth of spending that is taking place and we are using 10 years' worth of pay-fors.

I can tell you there is no one in this body who likes infrastructure more than me or has spent more time on the back of a paving machine or on a screed. Those are the kind of things I love to see happening. I know they create jobs and tremendous economic growth over the long haul. But I know the Presiding Officer remembers the debate we had for a long time in this body over health care, and I know he remembers the tremendous discussions that took place on the floor over the financing mechanisms. I don't think there is any question that people on my side of the aisle railed strongly--I might say as they should have--over the fact we had a pay-for formula where basically we were spending money over a 6-year period and paying for it over 10.

Ultimately, the bill passed, but there was tremendous divide in this body over mostly just the budget gimmickry that took place. Yet what I see getting ready to happen, in a large bipartisan way, is we are going to vote for a highway bill, possibly--I am not going to do that--that spends money over a 2-year period and recoups it over 10.

I am actually stunned by this. We talk about all the things we need to do in this body regarding Medicare and how we need to focus on reforms that make sure seniors in Vermont and seniors in Tennessee have these programs down the road, and we talk about Medicare in the same light. I think all of us want to make sure Social Security is here for future generations--for these young people in front of us. All of us know we have to figure out a way to solve that problem. The highway bill is simple. It is just math. It is unlike Medicare, it is unlike Medicaid, and it is unlike so many of the things we deal with around here that are so complex to get it just right. We have a highway bill that is not complicated. It is just math. There aren't all kinds of moving parts, as far as people providing health care and the incentives that are in place. But it feels to me like what we are getting ready to do as a body--and I hope this is not the case--is to pass a highway bill where we are going to do exactly what we have done with the sustainable growth rate for physicians in Medicare.

Back in 1997, we passed a bill here--I wasn't here at the time--that basically created a mechanism for paying physicians who dealt with seniors, and the formula was flawed. So what we have done every 18 months or every year is cause the medical community to be panicked and seniors to be panicked over whether this is going to be extended because the sustainable growth rate, as it was put forth, was going to call for huge reductions in payments to physicians.

We are actually dealing with that right now. It is one of the issues we are trying to work out with the House. What we did was to create a cliff. So every time we deal with this issue it gets more and more difficult to deal with it because we will not just sit down and do the long-term reforms on that one component that need to happen. We keep taking from Peter to pay Paul. We keep wrestling with this issue but we will not deal with it.

What we are getting ready to do with the highway bill is basically inject that same poisonous formula into the highway bill. What we are getting ready to do is to pass a highway bill that will fund highways through 2013, but at the end of that period of time we will have the same kind of cliff that we deal with regarding the SGR. We will have a $10 billion shortfall, instead of just dealing with a funding formula. If we don't think we are spending enough on infrastructure and people want to offer that in some way, now is the time to do it. Otherwise, if people don't want to go into a deficit situation, what we ought to do is spend the amount of money that is coming in.

But it feels to me as if we are getting ready, in a very bipartisan way, when we get back from recess, to show the country it is ridiculous to think this Congress will deal with the kind of reforms to Medicare to make it solvent, to do the kinds of things we need to do with Social Security--both of which are more complex--because this Congress will not even deal with this little program. It is a very important program, very important to my State and I am sure to Vermont. But we will not even deal with the reforms to it, in this time of great concern about our fiscal situation.

Again, I strongly support infrastructure funding. But I think what we will show the country, if we pass a bill like this, in a strong bipartisan way, is that there is very little hope Congress will ever deal with the more complex issues that challenge this country and which cause many seniors in our country to be concerned, which cause taxpayers to be very concerned, and certainly cause future generations to wonder whether this body is ever going to deal with the issues they know will haunt them down the road.

I came down to speak on this. I have done it daily in the lunch meetings we have with our own side. I just hope that sometime over the recess period, prior to coming to the floor, the Finance Committee will come up with a different package that actually either pays for this bill by offering funding formulas--which, by the way, is just math, it is not very difficult--or where we spend the amount of money that is actually coming in.

I will say that if we spent just the base moneys that are coming in, States such as Vermont and Tennessee and other places have the ability, if they choose, to generate gasoline taxes in their own States and do things with road money. Candidly, the way this program works, I think most people know that citizens send up $1 and they get back 98 cents. So it actually could be a more efficient way for this to work than sending it up to us and letting us get our hands on part of the money and figuring out what we are going to do with it.

I do believe this is one of the most irresponsible things we can do, especially when there may have been some criticisms over the President's budget. I haven't heard a lot of people speak on it because I don't think it has been taken up as a document that we will debate on this floor in a real way. But it is difficult to criticize the President's budget. I know the vote on last year's budget was 97 to 0 against it. But it is very difficult for people on either side of the aisle to criticize the President's budget if, in fact, there is a large bipartisan desire to pass a highway bill that does exactly the same thing.

I hope the Finance Committee will meet again and come up with a solution to this. It is not urgent. We have a recess period that is coming up. Surely, this Congress, this Senate, can show the ability to deal with an issue such as this, which, again, is so simple, and demonstrate to the American people, in a bipartisan way, that we have the ability to begin looking at these programs that are so important to people across our country in a way that doesn't take us down the fiscal tube.

I thank the Chair for listening. I know it is tough when there is not much happening down here.

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