Coal Ash Recycling and Oversight Act of 2012

Mr. President, I thank the Senator from North Dakota for allowing me to take a few moments to speak when he was waiting his turn.

I wish to also say Senator Hoeven has been a terrific member of our Agriculture Committee, coming in, in his first term, and has made a significant difference. He and our chairman of the Budget Committee, Senator Conrad, have been terrific powerhouses, and they never let me forget that 90 percent of the land in North Dakota is farmland. I thank him for allowing me to take a moment.

Agriculture and the Drought

Mr. President, I am not sure the House has completed the vote yet on a partial disaster assistance program, but I am rising to urge colleagues in the House to join with us in passing the Agricultural Reform Food and Jobs Act, commonly known as the farm bill.

I wish to commend the chairman and ranking member in the House for doing what we did in Senate, which is to work together on a bipartisan basis. They worked very hard with their committee and reported out a bill. We have some differences with that bill, but they worked very hard together, and I know we can come to agreement on something that is a compromise between the House and the Senate. I commend them for doing that.

I am very concerned and very disappointed that the Speaker and the House leadership did not support their efforts to bring this to the floor in July. I was on the Agriculture Committee in the House. This is my fourth farm bill. I have never heard of a situation where there was a bipartisan farm bill reported out of committee and not taken up on the floor. It is very concerning. But nonetheless, I support the chairman and ranking member in the House and look forward to working with them to actually get this done.

My colleagues, of course, remember the long and intense debate we had on this bill, both in committee and on the floor, with more than 70 amendments. I wish to again greatly thank our majority leader for understanding the significance of this bill to the economy and to rural America and to jobs across the country. The majority leader and the Republican leader both allowed us the time to do that, and I very much appreciate that.

We passed the bill, as we all know, with an overwhelming bipartisan vote, 64 to 35. The Senate came together and did what the Senate is supposed to do, and we worked very hard together to be able to get that done.

Especially given the drought and the disaster farmers are dealing with--not just drought but other disasters--it is critical the House follow our lead and both pass a comprehensive disaster assistance program but in the context of real reform and a 5-year farm bill.

The House Agriculture Committee passed their bill. I am anxious and I am, frankly, disappointed they did not have the support they needed to be able to bring it up, bring to the Senate, and put us in a situation where we are able to go to a formal conference committee, which I would like very much to do to resolve differences.

But we do intend to begin that process, speaking together, listening to each other, negotiating in the next few weeks to see if we can't come together informally, to be able to offer a compromise bill to the House and the Senate for consideration.

I wish to remind my colleagues that the farm bill is a jobs bill. Sixteen million people work in our country because of our agricultural economy and our food industry. We have the safest, most affordable food supply in the world. The bright spot is agriculture. Export surplus is in agriculture. We should be doing everything possible to support agriculture, our farmers, our ranchers, both in the short term for disaster assistance but also looking down the road on a 5-year farm bill.

Second, the farm bill expires on September 30, less than 2 months away. We need to get it done. We are racing against the clock right now.

We also know that this year our Nation is experiencing the worst drought in a generation. You turn on the news, and you see serious wildfires in Colorado, Nebraska, Utah, Oklahoma, Arizona, and Montana, among others. You look in Michigan and you see a fruit disaster that relates from warmth and then freeze. We have more than half of the counties in the United States that have been declared disaster areas not just because of drought, which is what the House has addressed partially, but because of weather disasters. That is 1,584 counties across the country, 82 of them in Michigan. We have only one county in Michigan that has not been declared a disaster area. Eighty percent of the country is now experiencing abnormally dry, moderate, or extreme drought, 22 percent of the country is facing extreme doubt, and so on.

As an emergency measure, USDA has opened 3.2 acres of conservation land for grazing and haying, but we know there is a lot more to be done. That is what I want to speak about because when we look at this, all the disasters--and we understand we have to address drought. We have to address what is happening to livestock. I am very proud of what we have done in the Senate, what we passed, which is a stronger Livestock Disaster Assistance Program. It is permanent--not just for a couple of months, it is permanent. But we also understood that there are other kinds of disasters. For those fruit growers and cherry growers in Michigan who have no access to crop insurance--it is not available to them--we made sure there was support for them. For apple growers, for sweet cherries, for juice grapes, for others across the country, we have put in place provisions in the Senate bill.

Frankly, I believe we need to do more and can do more as we look at how this has developed. We need to have the next few weeks to fully look at all that has happened, whether it is livestock in the drought, whether it is wildfires, whether it is what is happening to fruit growers, and put together a comprehensive effort in the context of passing a 5-year farm bill.

But when we look at all this, these are the disaster areas, but most of Michigan is not helped by what the House is doing because it does not include the efforts to help those who currently do not have crop insurance, the fruit growers. Michigan is not helped. The Northeast, again, with fruit, or Florida with fruit, or out West, whether it is California or Oregon or in this whole area--not helped by what the House is doing. I appreciate the first step, and I certainly understand that the agriculture leadership in the House is trying to do whatever they can to take a step, and I commend them for that. But it does not cover this. It covers a good share, but it does not cover every kind of disaster we have before us. And frankly, it doesn't cover disasters waiting to happen because of inaction on a 5-year farm bill.

Let me go through the differences right now between what the House and the Senate have done. We passed a comprehensive 5-year farm bill as well as a comprehensive disaster assistance bill. I will underscore again that I believe that after looking through the next few weeks and looking at everything that has happened, we ought to be looking at what else we can do--not less, as the House did, but potentially more.

Both the House and the Senate have extended the livestock disaster program to 2012. We extend it permanently.

On tree assistance, if you lose the entire tree in an orchard, you are helped--not if you just lose the food, like most of our growers, but the entire tree. These things are the same, so we have sort of disaster-lite up here.

Then, in the Senate bill, we increase payments for livestock producers facing severe drought, so we actually have a stronger payment system and safety net for our livestock producers.

As I said before, we help fruit growers impacted by frost and freeze. We create new crop insurance options so that, going forward, we don't have to be back here every year because we strengthen crop insurance and create opportunities for fruit growers who do not have insurance now to be able to

have crop insurance--which, by the way, producers pay into, and there is no payout unless you have a loss.

We also address urgently needed dairy reforms to save dairies from bankruptcy. In 2009, under the current dairy policy, we lost farms across the country. If we do not act in a 5-year farm bill, in the area of dairy, of milk producers, it is a disaster waiting to happen. So we need to have a comprehensive farm bill that deals with dairy reforms because that is part of avoiding the next disaster.

There is permanent funding, as I said, for livestock disaster assistance and conservation efforts to prevent another dust bowl. One of the reasons we don't have a dust Bowl in many areas where the drought has been horrible, just horrible, is because of conservation efforts that we put in place that have worked. We need to strengthen those.

We give the Forest Service tools to protect and improve forest health and deal with another disaster not dealt with here, which is forest fires all across the country.

We improve crop insurance to protect against disasters, and finally, we provide farmers and ranchers with long-term certainty. They want to know going forward not only what help they will receive this year--and they need it, and we will make sure that happens--but they want to make sure going forward that they have long-term certainty.

I appreciate in my own home State that the commodity growers are very concerned--strongly supportive of the Senate bill, want to support the Senate disaster assistance efforts. In fact, the Michigan Farm Bureau came out today opposing what the House is doing because, from a Michigan perspective, it just doesn't cut it. It is just not enough.

We have gone through efforts that, in fact, will allow us to solve the problem long term and to also address the short term. What we need, after hearing from farmers and ranchers across the country, is a bipartisan farm bill that gives producers long-term certainty so they can make business decisions without worrying about risk-management provisions that are going to expire on September 30--which, by the way, is just 58 days away.

I would like all my colleagues to know that we have really a dual strategy right now, knowing how important this issue is all across the country to rural America and really to everybody--everybody who eats. I think that is everybody. We all have a stake in having a strong agricultural policy, nutrition policy, conservation policy that maintains our position as the world leader in access to safe, affordable food. With or without official conferees and so on, it is our intent to have conversations to see if we might come together on something that would bridge the differences between House and Senate agricultural perspectives.

We know there are things we need to work on together. We are proud of the fact that we passed a farm bill on a strong bipartisan basis, but we understand we need to work with our colleagues and listen. It is our goal to do one of two things: to either have the opportunity to come together in September and offer something that would be a compromise with the House and the Senate that we could offer and look for an opportunity to pass--that is the best thing. It includes comprehensive disaster assistance as part of that. That is far and away what we are hearing from farm country and what we are hearing from those across the country whose livelihood depends on agricultural production in the food economy.

If for some reason we are not able to succeed, we need to assess all of what has to happen in the next 4 weeks and come back together and do what we need to do in September to pass a very strong, comprehensive disaster assistance program--not just for livestock, as important as that is, but for all of our communities in every State where there has, in fact, been a disaster.

We will work with colleagues. We will be offering a bipartisan effort. I am extremely hopeful that we can come together around what really needs to get done, which is a 5-year farm bill. If not, we certainly will make sure that in September we have the opportunity to work together.

As I close, let me just indicate the reason--what happens if we do not do the whole farm bill. We lose deficit reduction. The only thing we voted on in a bipartisan way with deficit reduction, we passed here together. I see colleagues of mine who played a tremendous role in this. The former head of the Department of Agriculture, the Secretary of Agriculture from Nebraska, the distinguished Senator from South Dakota--North Dakota--we did this on a bipartisan basis, $23 billion deficit reduction. We repealed subsidies that we all agreed from a taxpayers perspective we should not be doing anymore. We made some difficult decisions on that. We want to make sure we support farmers for what they grow but not give a payment for what they don't grow. And the number of reforms we did around payment limits and other things, including going through every part of this bill and doing what everybody says we ought to do, some of which is look for duplication, what doesn't work, what ought to be eliminated--and we actually eliminated more than 100 programs and authorizations.

If we don't do a real farm bill, all of this goes away. I suppose you can say the folks who do not want reform would be trying to stop us from passing a 5-year farm bill--certainly the Senate bill--people who do not want reform, people who would like to keep status quo and would like to continue with a system that has not worked for many growers and ranchers. We in the Senate have come together, and we think that is not the right way to go.

I am committed to working with my colleague, the ranking member from Kansas, who I know cares deeply as well about what is happening to livestock producers in his State. We have talked. I know how committed he is to making sure we have the right help to be able to support them. We are committed to doing that. But let's not do half a disaster assistance bill. Let's not do something short term that is less than what producers across the country are counting on us to do. They have sent a loud message. They want us to get it done. There is no reason we cannot. We did it here in the Senate. I believe that if we work in good faith, if we listen to each other, if we trust each other, we can get the whole thing done in September and have, really, something to celebrate and to offer to all of those in rural America, all of those who count on us, every one of the 16 million people who have a job because of agriculture and our food industry.

Mr. President, I yield the floor. My colleague from North Dakota has been extremely patient, and I am very much appreciative of his willingness to allow me to speak.

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

Mr. President, it was reported today that Iraq has denied the request of the United States to extradite senior Hezbollah field commander and confessed terrorist Ali Mussa Daqduq, who was recently ordered released by the Iraqi court after our government turned him over to Iraqi custody when our troops left the country.

The administration had years to transfer Daqduq to our detention facility at Guantanamo Bay, but because the President seemed to lack the political will to do so--I think because of campaign promises he improvidently made--one of the most dangerous, reprehensible terrorists ever in our custody will likely be allowed to go free. We should never have been in this position.

I and others saw this coming and we pleaded with the administration not to allow it to happen. Sadly, our warnings fell on deaf ears and, sadly, we were proven correct. Daqduq is responsible for the torture and murder of five American servicemen in Karbala, Iraq, including PVT Jonathan Millican of Locust Fork, AL, who was posthumously awarded the Silver Star for gallantry in action as he attempted to protect his comrades from Daqduq's terrorist actions outside the rules of war. Daqduq and his followers wore American uniforms--an action that he directed. His actions were clearly against the laws of war and he can be held not only as a prisoner of war but as a violator of the rules of war and can be tried and should have been tried before an American military commission.

When U.S. forces captured Daqduq, then the most senior Hezbollah figure in U.S. custody, he provided detailed testimony about the support and training provided by Iran to Iraqi insurgents and admitted to violating the laws of war. He is not a criminal defendant. He is not a member of an organized crime syndicate or some drug dealer. He is a confessed terrorist who committed atrocities against American soldiers during a war duly authorized by Congress. That makes him an unlawful enemy combatant who may be detained until the conclusion of the war or subjected to trial by a military commission. He could be imprisoned for up to life or he could be executed.

Once the military determined he was no longer of use for intelligence purposes when he was in Iraq, he should have been brought to Guantanamo Bay. That was the perfect place for him to be detained. This should have been an open-and-shut case. But President Obama and Attorney General Holder have obstinately clung to the failed law enforcement approach to counterterrorism. They just have. It has been a dispute all the way through the campaign and since they took office. They believe in treating foreign enemy combatants as normal criminal defendants entitled to U.S. constitutional protections and civilian trials. This is contrary to history and contrary to the laws of war. It is contrary to our treaty obligations. Other nations don't do this.

The problem began when, upon taking office, the President decided to ban any new additions to the prisoner population at Guantanamo Bay. We remember that. He didn't like Guantanamo Bay. He thought that was some bad place. So if he transferred Daqduq, or anyone else, for that matter, to Gitmo, he would anger certain of his supporters and violate some of his improvident campaign promises, one of which was to the effect that Gitmo was a cause of terrorism, not a way to prevent terrorism and prevent terrorists from murdering innocent civilians and attacking our military.

So when the report surfaced that the administration planned to transfer Daqduq to the United States for a civilian trial--that was the first report, that he would be brought here for a civilian trial--my colleagues and I wrote to the Attorney General urging him to reconsider and try him before a military commission. For a time, the Attorney General appeared to have relented. But a few months later, it was reported that instead of transferring him to Gitmo, the administration decided to release Daqduq to Iraqi custody.

This time, we wrote to Secretary of Defense Panetta asking him to reconsider that decision. We warned that the Iraqi Government previously had released terrorists who later returned to the battlefield to kill American servicemen. Yet as the deadline for the United States withdrawal from Iraq approached, it became clear the President had no intention of removing Daqduq from Iraq.

The President then struck a deal with Prime Minister al-Maliki to charge Daqduq before an Iraqi criminal court for his acts of terrorism, forgery, and illegal entry, and other offenses.

Now the Iraqi court has had a trial and ordered him released, in spite of the volume of evidence turned over by the United States to be used in the trial, including his uncoerced confessions detailing his role in training the insurgents and his role in the Karbala massacre that I referred to. It appears that it is only a matter of time before he will now be set free.

Recent press reports indicate that the Iraqi authorities are trying to find a way to release Daqduq without angering the White House or embarrassing the President ahead of the election. Well, no one should be surprised that Iraq will not turn him over. We were concerned from the beginning that this would happen.

The administration knew well before it handed over Daqduq that its decision was an abdication of its responsibility to prosecute a terrorist for war crimes against American soldiers--the murder of American soldiers. The administration knew if the Iraqi courts failed to bring him to justice, we may never get a second chance. That was known. And they knew that Iraq would not agree to an extradition request. That has been their policy. So the fact of the matter is we wouldn't be in this position if we had prosecuted Daqduq when we had the opportunity. But now, not only is justice perverted, but he could be returned to the battlefield to kill more Americans, Iraqis, and others.

Unfortunately, Daqduq was not the first, nor will he be the last, example of this administration's unwillingness to confront dangerous terrorists effectively and to process them effectively.

In July of 2009, Senator Jon Kyl and I wrote President Obama urging him to adhere to this Nation's longstanding policy of not negotiating with terrorists and not to release the Khazali brothers--two of the top Iraqi terrorists trained by Daqduq who were complicit in the Karbala massacre in 2009; but they went forward--in exchange for the release of British hostages held by the terrorist organization called the League of the Righteous.

President Obama authorized the Khazalis' release as part of what the Iraqi Government called its ``reconciliation efforts'' with insurgent groups.

But in reality, this release was a thinly veiled ploy to use Iraq as a middleman in a terrorist-for-hostage exchange in direct violation of President Reagan's policy not to negotiate with terrorists. In fact, there was an Executive order he issued to that effect.

When Iraq released the Khazalis to the League of the Righteous, the terrorist group responded by releasing five British hostages, but, sadly, four of them had already been executed. Qais Khazali immediately, upon his release, resumed his position as leader of the terrorist group and orchestrated the kidnapping of a U.S. civilian contractor in Baghdad less than a month after his release, and Abdul Reza Shahlai, an Iranian Quds Force officer now in Iraq--the Quds Force is one of the most loyal and vicious parts of the Iranian regime-- helped Khazali and Daqduq plan the Karbala massacre and helped coordinate the attempt to assassinate the Saudi Arabian Ambassador to the United States on U.S. soil. Do you remember that? That is the same guy.

Despite this alarming track record and the obvious lessons to be learned from its previous mistakes, the administration recently insisted on engaging in negotiations with the Taliban to release five terrorist detainees from Guantanamo Bay--detainees who were categorized previously as ``too dangerous to transfer'' by the administration's own Guantanamo Review Task Force--and they were to be released in exchange for the Taliban's promise in Afghanistan to ``begin'' talks with the Afghan Government.

Negotiating, I suggest, with terrorists is not a profitable enterprise, and in effect that is what that was. Three of the five have ties to al-Qaida. Another met with Iranian officials on behalf of the Taliban immediately following 9/11 to discuss Iran's offer of weapons and support to attack U.S. forces in Afghanistan. Another detainee then under consideration, Mohammad Fazl, is a close friend of the supreme Taliban commander, Mullah Omar, who is accused of killing thousands of Afghan Shiites, and who was responsible for the prison revolt that claimed the life of CIA Officer Johnny Michael Spann, the first American killed in Afghanistan and, incidentally, another brave Alabamian.

As time has passed, it has become clear that the policy of not negotiating with terrorists is sound and essential, and the administration's actions in violation of that policy have failed and they are dangerous.

Indeed, the administration's failed terrorist detention policies appear to have led to a policy that favors killing rather than capture and interrogation of enemy combatants. It is an odd event, but it does appear to have some truth to it.

So today we face a situation in Afghanistan that is similar to that which we faced in Iraq in 2009. Parwan Prison currently houses roughly 2,000 to 3,000 individuals, including high-value detainees.

In August 2011, the Washington Post--last August--reported:

U.S. officials say that giving Afghans control over the

fates of suspected insurgents would allow dangerous Taliban

fighters to slip through the cracks of an undeveloped legal

system.

I will tell you what that means. It means they will not be able to keep them in those jails. History shows that. They will get their way out of there--through violence, through bribery, through threats, or some other mechanism, and that is what is continuing to happen. It is a big concern of the military. As a Federal prosecutor, who observed this particular issue over the years in Iraq and Afghanistan, it has been a source of concern to me.

In March of this year, the administration agreed to a gradual transfer of control of the prison to the Afghan Government over a period of 6 months, with the United States holding veto power over the release of certain prisoners. However, the Washington Post reported in May--just May of this year--that the administration has been secretly releasing high-value detainees held in Afghanistan in exchange for certain ``promises of support'' from leaders of insurgent groups.

Now, how long do you think that will last? Once we release the prisoner, they are out, but the promises by some Taliban or some terrorists are not going to be honored. Not only do some of these prisoners have ties to Iran or al-Qaida and other terrorist organizations that continue to attack our troops, but their release is not even conditioned on them severing their contact with the insurgent groups.

According to the Washington Post, the administration has approved these releases in part because they do not require congressional approval. That is what they report. It also has been reported that the administration is attempting to repatriate some of the 50 most dangerous militants over which the United States currently retains custody to Pakistan and other Arab countries--this in the face of reports from the Director of National Intelligence that nearly 28 percent of former Gitmo detainees are either confirmed or suspected to have returned to the battlefield to attack America and our allies. That is 28 percent. How many are doing so and we have not yet proven that they have been in the game? I suspect many more than that 28 percent.

So the question inevitably arises: When American detention operations in Afghanistan come to an end, where will the administration take those 50 or so dangerous prisoners, assuming it has not already negotiated with other insurgent groups for their release? If they are not going to release them, what are they going to do with them?

Once again, the administration has kicked the can down the road, just as it did in Iraq, which eventually culminated in the Daqduq mess.

The country cannot afford to continue down this dangerous path, especially in light of the impending withdrawal of our troops from Afghanistan and the administration's agreement to transfer detainees in U.S. custody to the Kabul Government. The same unacceptable result will surely occur.

The President is the Commander in Chief. He has serious responsibilities, and one is to defend the honor, the dignity, and the credibility of the United States. I do not believe we are doing so when we are dealing with terrorists who double-cross us at every turn. He has a duty to those magnificent troops who have answered his call to go into harm's way to execute U.S. policy.

Part of that duty is not to give away what they have fought and bled for, not to give it away after they fought and bled for it, and captured these people. That includes not giving up prisoners whom these soldiers, at great risk and effort, have captured--terrorists who seek to destroy what we have, terrorists we have worked so hard to capture, terrorists who may return to kill more Americans and more Afghans.

This policy cannot be defended. It has to end. So I urge the President and his team to act forcefully now. It may not be too late. With strong action we may be able to ensure that Daqduq is not released, that he is able to be tried for the murders he committed and the American soldiers he killed.

I thank the Presiding Officer and suggest the absence of a quorum.

Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant.

Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court.

At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation.

The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.''

This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as:

Such evidence as, in the judgment of the law, is sufficient

to establish a given fact and which if not rebutted or

contradicted, will remain sufficient. [Prima facie evidence],

if unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but [it]

may be contradicted by other evidence.

In a recent concurring and dissenting opinion, Justice Scalia went so far as to describe this definition of ``prima facie evidence'' as ``canonical.'' He also stated:

The established meaning in Virginia, then, of the term

``prima facie evidence'' appears to be perfectly orthodox: It

is evidence that suffices, on its own, to establish a

particular fact. But it is hornbook law that this is true

only to the extent that the evidence goes unrebutted. ``Prima

facie evidence of a fact is such evidence as, in judgment of

law, is sufficient to establish the fact; and, if not

rebutted, remains sufficient for the purpose.'' 7B Michie's

Jurisprudence of Virginia and West Virginia Sec. 32, 1998,

(emphasis added).

Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part.

Other Federal courts continue to use this definition of ``prima facie evidence:''

``A prima facie showing simply means evidence of such

nature as is sufficient to establish a fact and which, if

unrebutted, remains sufficient for that purpose.'' Cumulus

Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d

1167, 1176 n.13, 11th Cir. 2002.

``Under [the prima facie evidence] standard, it is

plaintiff's burden to demonstrate the existence of every fact

required to satisfy both the forum's long-arm statute and the

Due Process Clause of the Constitution. The prima facie

showing must be based upon evidence of specific facts set

forth in the record. To meet this requirement, the plaintiff

must go beyond the pleadings and make affirmative proof.

However, in evaluating whether the prima facie standard has

been satisfied, the district court is not acting as a

factfinder; rather, it accepts properly supported proffers of

evidence by a plaintiff as true and makes its ruling as a

matter of law. When the district court employs the prima

facie standard appellate review is de novo.'' United States

v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir.

2001, citations and quotations omitted.

``Prima facie evidence consists of specific factual

information which, in the absence of rebuttal, is sufficient

to show that a fairness doctrine violation exists. * * * * In

general terms, prima facie evidence is evidence which is

sufficient in law to sustain a finding in favor of a claim,

but which may be contradicted.'' American Security Council

Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24,

D.C. Cir. 1979.

``A prima facie case is established by evidence adduced by

the plaintiff in support of his case up to the time such

evidence stands unexplained and uncontradicted. The words

`prima facie,' when used to describe evidence, ex vi termini

imply that such evidence may be rebutted by competent

testimony. The term prima facie evidence' implies evidence

which may be rebutted and overcome, and simply means that in

the absence of explanatory or contradictory evidence the

finding shall be in accordance with the proof establishing

the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282,

289-90, 7th Cir. 1949, citations and quotations omitted.

``The term prima facie evidence means * * * * [e]vidence

good and sufficient on its face; such evidence as, in the

judgment of the law, is sufficient to establish a given fact,

or the group or chain of facts constituting the party's claim

or defense, and which if not rebutted or contradicted, will

remain sufficient. Prima facie evidence is evidence which, if

unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but which

may be contradicted by other evidence.''' Gibson v. Zant, 547

F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law

Dictionary, 5th Edition.

`Prima facie evidence' is evidence which, if unrebutted or

unexplained, is sufficient to establish the fact to which it

is related. It proves the fact until other proof contradicts

or overcomes the factual hypothesis initially set up by the

presumption.'' DAL Int'l Trading Co. v. The SS Milton J.

Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern.

The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that:

Some courts have developed criteria for determining whether

the activities and products of corporations constitute

matters of public interest. As previously indicated, matters

of public interest include such essentials of life as food

and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623

F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc.,

supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American

Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863.

Widespread effects of a product are yet another indicator

that statements about the product are in the public interest.

Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th

Cir.1971) (possible causes of cancer are a matter of public

concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp.

at 156, article on an arthritis cure is in public interest

because significant portion of population is afflicted with

arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet

Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90,

1974, flammability of 25,000 baby cribs held to be matter of

public interest; Krebiozen Research Found. v. Beacon Press,

Inc., 334 Mass. 86,

----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct.

65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter

of public concern. Still another criterion is substantial

government regulation of business activities and products.

The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers.

Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense.

Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C. Sec. 1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C. Sec. 205, which allows removal of disputes that appear to be covered by an international arbitration agreement.

Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.''

The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal- question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)).

In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that

``[t]he judicial power * * * * was not to be exercised

exclusively for the benefit of parties who might be

plaintiffs, and would elect the national forum, but also for

the protection of defendants who might be entitled to try

their rights, or assert their privileges, in the same

forum,'' and further noting that ``we are referred to the

power which it is admitted congress possess to remove suits

from state courts to the national courts.''

The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority.

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

Mr. President, as Congress prepares to adjourn for the August State work period, nearly 50 million students are preparing to head back to approximately 100,000 elementary and secondary public schools across the country. What a great responsibility it is for us in Congress and our partners at the State and local levels to engage with parents and teachers to ensure that these 50 million students are well educated. When I travel back to Louisiana this month, I will be visiting students and schools throughout the State, from Lafayette to New Orleans to Bogalusa. I am looking forward to watching stimulating lessons, meeting enthusiastic students and teachers, and learning more about the successes and challenges of Louisiana's schools.

The National Center for Education Statistics estimates that $544.3 billion will be spent in public education this upcoming school year. That is an estimated $11,000 per student. Are we making the most of those dollars? In Congress, we perennially debate the amount of Federal funds we should invest in our public school students. We recognize that many of our States' education systems are underpreparing young people for the changing workforce and increasing global competition. Yet we cannot agree on the appropriate amounts to invest at the Federal level to ensure that all students receive the opportunity for an excellent education. All too often, the debate has been about ``How much?'' rather than about ``How to get better results?'' with existing resources.

Over the last several years, Federal, State, and local governments have taken helpful steps to change the way taxpayer dollars are invested to ensure that our limited resources are driven toward high- impact solutions in education. Mayors and governors across the country are increasingly using data and evidence to steer public dollars to more effectively address the educational needs of their communities and States. At the Federal level, innovation funds have been created to invest in and scale proven solutions. Some of these Federal programs, such as the Social Innovation Fund, Investing in Innovation, and the High-Quality Charter Schools Replication and Expansion Program, provide competitive grants to nonprofit organizations in order to grow promising, evidence-based solutions.

The Social Innovation Fund in particular focuses on three priority areas: economic opportunity, healthy futures, and youth development. Its unique Federal funding model requires all grantees and subgrantees to match Federal resources 1:1, thereby increasing the return on taxpayer dollars and strengthening local support. This program relies on outstanding existing grant-making ``intermediaries'' to select high- impact community organizations rather than building new government infrastructures. Additionally, it emphasizes rigorous evaluations of program results.

In my home State of Louisiana, the Social Innovation Fund recently provided the Capital Area United Way with $2 million to replicate and expand effective early childhood development programs to increase school readiness among children in low-income and rural parishes within the Greater Baton Rouge area. We know that education does not begin in kindergarten, education begins in a child's earliest years of life. New Profit, Inc., received a Social Innovation Fund grant of $15 million over 3 years to collaborate with innovative youth-focused, nonprofit organizations in helping young people navigate the increasingly complex path from high school to college and productive employment. The project will expand the reach of these nonprofits to improve the lives of nearly 8,000 young people in low-income communities throughout the country.

Another program investing in what works is the Investing in Innovation Fund, commonly known as the i3 Program. This program provides competitive grants to local school districts and nonprofit organizations with records of success to help them leverage public- private partnerships to implement education practices that have demonstrated positive impacts on student achievement. Since 2010, the U.S. Department of Education has awarded competitive i3 grants to 72 local school districts and nonprofit organizations in 26 States and Washington, DC.

I am proud that New Schools for New Orleans, in partnership with the Louisiana Recovery School District and Tennessee Achievement School District, received $28 million in i3 funds in 2010 to significantly increase the number of high-quality charter schools in New Orleans and ultimately improve education outcomes for New Orleans' students. With these funds, New Schools for New Orleans is replicating Sci Academy, a high-performing charter high school that New Schools for New Orleans incubated four years ago. Sci Academy just graduated its first class of seniors--with 96 percent matriculating to 7-year colleges. Two new high schools modeled after Sci Academy will open this fall. With the i3 grant, New Schools for New Orleans is also funding the turnaround of a K-8 school, Craig Elementary School in the Treme neighborhood. Dr. Doris Hicks, who runs the very successful Dr. Martin Luther King Charter School in the Lower Ninth Ward, will be overseeing the turnaround of Craig Elementary School, lending her expertise and community credibility to the effort.

The High-Quality Charter Schools Replication and Expansion Program provides competitive grants to successful nonprofit charter management organizations to allow them to increase enrollment at existing charter schools or open one or more new charter schools based on their successful model. Both Rocketship Education out of California and KIPP, Knowledge is Power Program, out of Houston, TX, have received critical funds from this competition in order to expand their reach and serve more students. Both of these well-known and highly popular charter management organizations are opening and operating charter schools in Louisiana and other States across the United States.

On May 18, 2012, the Office of Management and Budget issued a ``Memorandum to Heads of Executive Departments and Agencies'' asking them to demonstrate the use of evidence throughout their fiscal year 2014 budget submissions. This is exactly the right kind of directive-- one which taxpayers will be happy to hear. In particular, I am enthusiastic about the potential impact of the provisions in the memo that urge agencies to propose new types of evaluations and consider how evidence can be used in both formula and competitive grant-making programs.

For the Federal Government to make this shift toward requiring more evidence of impact and prioritizing the investment of taxpayer dollars in proven programs, I recognize that there are a number of challenges to address, including a lack of agreement about what constitutes ``evidence'' of impact; the difficulty of measuring certain kinds of interventions or their desired outcomes; the resources it takes to conduct the most rigorous evaluations; a concern that those communities most in need will be unable to compete and, therefore, fall further behind; and a concern that many well-intentioned organizations will lose public funding because they do not currently have the evidence necessary to prove their impact. These are very valid concerns, and I encourage the Office of Management and Budget and all Federal departments and agencies to address them through a thoughtful design of policy approaches.

I strongly encourage my colleagues in the Senate to visit a variety of public schools in their home States this month. Talk with students, parents, teachers, and school leaders. Learn more about their successes and challenges, and consider this question: What is truly working in education and how can the Federal Government be more strategic about investing in evidence-based solutions in our classrooms?

We need to be smarter about how we invest in education if we are going to close the achievement gap, prepare students for the 21st century workforce, and compete in the global arena. Joel Klein, Condoleezza Rice, and a Council on Foreign Relations-sponsored task force recently produced a report called ``U.S. Education Reform and National Security.'' According to the report, ``Educational failure puts the United States' future economic prosperity,

global position, and physical safety at risk. Leaving large swaths of the population unprepared also threatens to divide Americans and undermine the country's cohesion, confidence, and ability to serve as a global leader. . . . The United States will not be able to keep pace-- much less lead--globally unless it moves to fix the problems it has allowed to fester for too long.''

I yield the floor.

Mr. President, it has been 2 years since Congress passed legislation that provided for transparency in the mineral industry. It was a provision that was included in the Dodd-Frank bill. It was included as an amendment on which Senator Lugar and I worked. I wish to thank Senator Lugar for his incredible leadership on this issue-- transparency--as well as so many other issues that affect the security of not only America but global security.

The provision is something we worked on to provide transparency in developing countries. It provided a visible sign of U.S. leadership, that we are going to do everything we can to promote good governance around the world; to demonstrate that we understand that for the stability of America, we need countries that have good governance.

The United States spends more money than any other country in the world on our national security budget. In fact, we spend more than most of the other countries combined spend on national defense. We have the ability to use our military for our national defense, but it is much better if we can develop stable countries around the world. The way to develop stable countries is to help them build a stable economy, to help them build wealth, and to help them have good governance.

It is impossible to see the type of progress we want in the developing countries unless they have good governance. I might say that the more we can help in this regard, the more we promote good governance and economic growth, the better off we will be. Our direct security burdens will be reduced, and we will have new markets, which will create economic opportunities for America.

As the Presiding Officer knows, this is the guiding principle of the Organization for Security and Cooperation in Europe. We used the Helsinki Commission as our implementing arm. The Helsinki Accords that were signed in 1975 between Europe--all of the countries of Europe--the United States, and Canada recognized that it was in our national security interests to support stable countries that respect human rights and have good governance.

This is the reason the Cardin-Lugar amendment was so important in the Dodd-Frank Wall Street reform legislation. Let me explain what it does. It requires mineral companies to list the payments they make to extract the minerals they take out of a country. Whether we are talking about gas or oil, whether it is diamonds or copper--the companies need to divulge their individual payments to foreign countries in their reports to the Securities and Exchange Commission, SEC.

We did that for many reasons.

One reason, quite frankly, is that although many countries in the world have vast sums of mineral wealth, these are some of the poorest countries in the world. We call it the ``resource curse'' because the natural resource wealth of the country isn't just being denied to the people for their economic growth, it is being used to fuel corruption within their own country. So one of the reasons for the provision we incorporated in the Dodd-Frank bill was to provide transparency so that the people of the country, along with the international community, will know exactly where payments are being made for the extraction of mineral wealth in a country.

Senator Lugar and I also thought that such information would be important for U.S. investors, too. If someone is going to invest in a mineral company, he or she has a right to know where that company is signing contracts and paying money for access to the natural resource(s).

It is also important for U.S. interests. We need stable mineral reserves. As the Presiding Officer knows, we have gone to war over the need for oil. We need stable markets so that we do not jeopardize our own economic progress.

So the Cardin-Lugar provision gives us a chance to follow the money, as the saying goes, in a particular country.

For all of these reasons, Mr. President, we passed a provision as part of the Dodd-Frank legislation that requires every company that is involved in extracting minerals to list those payments specifically by project in their SEC filings.

It was pretty clear as to what needed to be done. We gave the authority to the SEC to issue the necessary regulations. Well, we have been waiting 2 years for these regulations--2 years. We are now well beyond the time limit that was spelled out in the legislation for the SEC to issue its regulations. Yet the SEC still hasn't issued final regulations.

I have read the statute over and over again. I helped write the statute. Senator Lugar has read the statute. We do not understand the difficulty. It was not a complicated provision. It said exactly what the companies have to do. So we are somewhat puzzled why it has taken this length of time for the SEC to issue its final regulations. In the meantime, we are being denied the benefit of this law. We are being denied the opportunity to protect our investors. We are being denied the opportunity to follow the money, to help promote good governance abroad. All that has been delayed as a result of the SEC's failure to issue regulations.

I must say that it also jeopardizes U.S. leadership. Yes, there are other countries interested in following what the United States is doing. We have heard from Europe, and we have heard from Asia. They want to adopt similar laws. They do not know what to pass because they are still waiting for the SEC to act. So the failure to act isn't just affecting our ability; it is also affecting other countries. Collectively, between Asia, Europe, and the United States, we can pretty much cover all of the international extractive companies and therefore have a real, major impact on transparency on this issue.

I might say that one of the criticisms I have heard is about why we have a separate bill. We already have what is known as the Extractive Industries Transparency Initiative, or EITI. There is an international organization that is voluntary. Countries can join. The United States has participated in the EITI. EITI participants help countries with best practices for developing the governance to deal with how they handle their mineral wealth. EITI is an important program. It is a voluntary program. It works well.

The Cardin-Lugar provision in the Dodd-Frank legislation complement the EITI. The two work together. Between the two, the EITI and our legislation, there's a way that we can really require companies to make the information available in an open way. The EITI gives developing countries the technical assistance they need to manage their mineral wealth in the most effective way for the benefit of their own people, to elevate their wealth and to have a more sustainable economy.

This delay has caused a great deal of concern to many of us. Quite frankly, Oxfam, for example, has filed suit against the SEC for its failure to issue regulations, and I am very sympathetic to that lawsuit.

I wish to inform Senators that we have now been told the SEC will finally issue its regulations on August 22, in just a few weeks. SEC officials have formally responded to the Oxfam lawsuit, saying the agency will issue regulations on August 22. I have received a letter from the SEC indicating the same thing. It is long overdue.

I am looking forward to seeing the regulations from the SEC. I hope the SEC follows the letter and spirit of the legislation. It is up to Congress to pass the laws. SEC needs to implement the laws under direction and guidance from Congress. We have made it clear that we want openness and transparency. I know some oil companies may not like that, but they do not write the laws, we do. It is up to the SEC now to promulgate the regulations that carry out the intent of our law and help us move forward so that the resource wealth of countries in the developing world become a real asset, a real benefit, as they develop sustainable economies and good governance, which helps global stability and helps the global economy.

We will be watching the SEC. I know we will be in recess on the 22nd, but we will be watching the SEC. I hope that Congress and the SEC will be working

together and that the United States will continue exercising its leadership, so that we will see other countries follow suit where we really can make a difference in the wealth and growth of countries around the world that for too long have been suffering even though they have enormous mineral wealth.

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