PROTECT IP Act of 2011

Mr. President, just over a month ago, on December 17, the Senate entered into a unanimous consent agreement to consider the nomination of John M. Gerrard, of Nebraska, to be United States District Judge for the District of Nebraska. We are proceeding with this nomination, which I will support, despite the President's actions on recess appointments. During the last session we acted responsibly in considering the President's nominees. Even the Majority Leader acknowledged this. He stated, ``We have done a good job on nominations the last couple of months. Actually, in the last 3 months, we have accomplished quite a bit.''

I will have more to say about the recess appointments. But with regard to this nomination I hope my colleagues understand that even though we are proceeding under regular order today, it is only because this unanimous consent agreement was locked in before the President demonstrated his monarchy mentality by making those appointments. I am not going to hold this nominee accountable for the outrageous actions of the President.

However, as this is a matter of concern to my Republican colleagues, as it should be for all Senators, we must consider how we will respond to the President and restore a Constitutional balance. Since the adoption of the unanimous consent agreement governing the nomination before us, President Obama has upset the nominations process. Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers.

First, it provides that the President nominates, and by and with the advice and consent of the Senate, appoints various officers. Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess. On January 4, the President made four appointments. They were purportedly based on the Recess Appointments Clause. He took this action even though the Senate was not in recess. This action is of the utmost seriousness to all Americans.

These appointments were blatantly unconstitutional. They were not made with the advice and consent of the Senate. And they were not made ``during the recess of the Senate.''

Between the end of December and today, the Senate has been holding sessions every 3 days. It did so precisely to prevent the President from making recess appointments. It followed the same procedure as it had during the term of President Bush. Honoring the Constitution and the desire of the Senate President Bush declined to make recess appointments during these periods. But President Obama chose to make recess appointments despite the existence of these Senate sessions.

In addition to being unconstitutional, these so-called recess appointments break a longstanding tradition. They represent an attempted presidential power grab against this body.

A President has not attempted to make a recess appointment when Congress has not been in recess for more than 3 days in many decades. In fact, for decades, the Senate has been in recess at least 10 days before the President has invoked this power.

Other parts of the Constitution beyond Article II, Section 2 show that these purported appointments are invalid. Article I, Section 5 provides, ``Each House may determine the Rules of its Proceedings. . . .''

In December and January, we provided that we would be in session every 3 days. The Senate was open and provided the opportunity to conduct business. That business included passing legislation and confirming nominations. In fact, the Senate did pass legislation, which the President signed. According to the Constitution--each House--not the President determines whether that House is in session. The Senate said we were in session. The President recognized that fact by signing legislation passed during the session.

Article I, Section 5 also states, ``Neither House, shall, during the session of Congress, without the consent of the other, adjourn for more than 3 days. . . .'' The other body did not consent to our recess for more than 3 days. No concurrent resolution authorizing an adjournment was passed by both chambers. Under the Constitution, we could not recess for more than 3 days. We did not do so. The President's erroneous belief that he can determine whether the Senate was in session would place us in the position of acting unconstitutionally. If he is right, we recessed for more than 3 days without the consent of the other body. By claiming we were in recess, the President effectively dares us to say that we failed to comply with our oath to adhere to the Constitution. Yet, it is the President who made appointments without the advice and consent of the Senate while the Senate was in session. It is the President who has violated the Constitution.

Of course, the President does not admit that he violated the Constitution. He has obtained a legal opinion from the Office of Legal Counsel at his own Department of Justice.

That opinion reached the incredible conclusion that the President could make these appointments, notwithstanding our December and January sessions. That opinion is entirely unconvincing. For instance, to reach its conclusion that the Senate was not available as a practical matter to give advice and consent, it relies on such unpersuasive material as statements from individual Senators.

The text of the Constitution is clear. It allows no room for the Department to interpret it in any so-called ``practical'' way that departs from its terms.

The Justice Department also misapplied a Judiciary Committee report from 1905 on the subject of recess appointments. That report said that a Senate ``recess'' occurs when ``the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions;

when its Members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.''

Obviously, that report does not support the Department of Justice. During these days, the Senate was sitting in session. It could discharge executive functions. The Chamber was not empty. It could receive communications. It could participate as a body in making appointments. In fact, it sat in regular session and passed legislation.

There is nothing in the 1905 report that justifies the President substituting his judgment for the Senate's regarding whether the Senate is in session. In any event, a Senate Judiciary Committee report from 1905 does not govern the United States Senate; in 2012. The Senate; as constituted today; decides its rules and proceedings.

The Department is on shaky legal ground when it claims that ``whether the House has consented to the Senate's adjournment of more than 3 days does not determine the Senate's practical availability during a period of pro forma sessions and thus does not determine the existence of a `Recess' under the Recess Appointments Clause.''

There is no basis--none--for treating the same pro forma sessions differently for the purposes of the 2 clauses. The Department simply cannot have it both ways.

The Justice Department's opinion contains other equally preposterous arguments. For instance, the opinion claims that the Administration's prior statements to the Supreme Court--through former Solicitor General Elena Kagan--that recess appointments can be made only if the Senate is in recess for more than 3 days are somehow distinguishable from its current opinion, or that the pocket veto cases do not apply.

Or even if they did, the ``fundamental rights'' of individuals that the courts described in those cases include the right of the President to make recess appointments.

There was a time when Presidents believed that they could take action only when the law gave them the power to do so. They obtained advice from the Justice Department on the question whether there was legal authority to justify the action they wished to take. But Theodore Roosevelt started to change the way Presidents viewed power. He believed that the President could do anything so long as the Constitution did not explicitly preclude him from acting. When he used that theory to create wildlife refuges against a rapidly expanding industrial base, there was no objection. But a dangerous precedent was set. When he claimed that he could make recess appointments during a ``constructive recess'' of the Senate, the Senate rejected this view in that 1905 report.

When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say that the Constitution does not stand in the way. At that point, a President is no longer a constitutional figure with limited powers as the founders intended. Quite the contrary, the President looks more and more like a king that the Constitution was designed to replace.

This OLC opinion reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power. Formerly, the Justice Department gave legal advice to the President based on an objective reading of texts and judicial opinions. It was not an offshoot of the White House Counsel's office.

This more objective view of the limits of Presidential power also provided a level of protection for individual liberty, the principle at the core of our constitutional separation of powers. The President might refuse to accept the advice. He might choose to fire the officer who gave him advice with which he disagreed. He could seek to appoint a new officer who would provide the advice he preferred. But he risked paying a political price for doing so. An official who thought that loyalty to the Constitution exceeded his loyalty to the President could refuse to comply, at great personal risk. That is what Elliot Richardson did during the Saturday Night Massacre of the Watergate era.

During the Reagan Administration, OLC issued opinions that concluded that the President lacked the power to undertake certain acts to implement some of his preferred policies. The President did not undertake those unilateral actions.

President Obama originally submitted a nominee for OLC that was wholly objectionable. The Senate had good reason to believe that she would not interpret the law without regard to ideology. We refused to confirm her.

The President ultimately withdrew her nomination and nominated instead Virginia Seitz. We asked important questions at her confirmation hearing and thorough questions for the record.

Ms. Seitz responded that OLC should adhere to its prior decisions in accordance with the doctrine of stare decisis. And she stated that if the administration contemplated taking action that she believed was unconstitutional, she would not stand idly by. Relying on those assurances, the Senate confirmed Ms. Seitz.

Ms. Seitz is the author of this wholly erroneous opinion that takes an unprecedented view of the Recess Appointments Clause. And I suppose it is literally true that Ms. Seitz did not stand idly by when the administration took unconstitutional action: rather, she actively became a lackey for the administration. She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law.

That opinion, and her total deviation from the statements she made during her confirmation process, show extreme disrespect for the institution of the Senate and the constitutional separation of powers. I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination. However, after reading this misguided and dangerous legal opinion, I am sorry the Senate confirmed her. It's likely to be the last confirmation she ever experiences.

The Constitution outlines various powers that are divided among the different branches of our Federal government. Some of these powers are vested in only one branch, such as granting pardons or conducting impeachment proceedings. Other powers are shared, such as passing and signing or vetoing bills. The appointment power is a shared power between the President and the Congress. When one party turns a shared power into a unilateral power, the fabric of the Constitution is itself violated, and a response is called for.

In Federalist 51, Madison wrote that the separation of powers is more than a philosophical construct. He wrote that the ``separate and distinct exercise of the different powers of government'' is ``essential to the preservation of liberty.''

The Framers of the Constitution wrote a document that originally contained no Bill of Rights. They believed that liberty would best be protected by preventing government from harming liberty in the first place. That was the reason for the separation of powers. They designed a working separation of powers through checks and balances to ensure a limited government that protected individual rights. Madison wrote, ``Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.''

That is what the Framers intended in a case such as this. When the President unconstitutionally usurped the power of the Senate, the Senate's ambition would check the President's. In this way, the Constitution is preserved. The power of the government is limited. And the liberties of the people are protected. But the Framers did not anticipate the modern Presidency. It took Justice Jackson's famous concurrence in the Youngstown case to address presidential powers in today's world. When the Judiciary Committee held its confirmation hearings on President Bush's Supreme Court nominations, my friends on the other side of the aisle posed many questions about the Jackson concurrence. That opinion sheds light on these so-called recess appointments.

For instance, President Obama argued in a nationally televised rally that his actions were justified because ``[e]very day that Richard [Cordray] waited to be confirmed . . . was another day when millions of Americans were left unprotected. . . . And I refuse to take `no' for an answer.''

Justice Jackson anticipated these hyperbolic statements. He wrote: ``The tendency is strong to emphasize the transient results upon policies. . . . and lose sight of enduring consequences upon the balanced power structure of our Republic.'' President Obama has definitely let transient policy goals overtake the Constitution. His argument is that the end justifies the means.

His argument is that he can say no to the Constitution. Or, in essence, that the Constitution does not apply to him. But the Constitution demands that the means justify the ends, and that adherence to established procedure is the best protection for liberty. A monarch or a king could say no to the Constitution. But under our Constitution, the President may not. It is the Constitution, and not the President, that refuses to take no for an answer.

Justice Jackson was also aware that the modern President's actions ``overshadow any others [and] that, almost alone, he fills the public eye and ear.'' By virtue of his influence on public opinion, he wrote, the President ``exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.''

Some people believe that President Obama challenged the Senate for partisan purposes. But Justice Jackson understood the true partisan dynamic that is now playing out. He recognized that the President's powers are political as well as legal. Many presidential powers derive from his position as head of a political party. Jackson wrote: ``Party loyalties and interests sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution.'' Finally, he concluded, ``[O]nly Congress itself can prevent power from slipping through its fingers.''

Outside these walls, in the reception room, are portraits of great Senators of the past. The original portraits were selected by a committee that was headed by then Senator John F. Kennedy. They included such figures as Webster, Clay, Calhoun, LaFollette, and Taft. Yes, these Senators were partisans. But they were selected because of the role they played in maintaining the unique institution that is the Senate in our constitutional system. In particular, they protected the Senate and the country from the excessive claims of presidential power that were made by the chief executives of their time. Where are such Members today?

Where is a member of the President's party today who is like a more recent Senate institutionalist--Robert C. Byrd? He defended the powers of the Senate when Presidents overreached--even Presidents of his own party. Where are the Members who recognized that our sessions every 3 days rightly prevented President Bush from making recess appointments but who stand idly by as President Obama makes recess appointments without a recess?

I remind my colleagues of my experiences as chairman or ranking member of the Finance Committee. I refused to process nominees to positions that passed through that committee to whom President Bush gave recess appointments. That is how I used the authority that I had to protect the rights of the Senate.

I do not believe we should let the powers vested in the elected representatives of the American people slip through our fingers because we place partisan interests above the Constitution. I have shown how the Framers understood that supposedly expedient departures from the Constitution risked individual liberty. The constitutional text in this situation is clear. It must be upheld. We must take appropriate action to see that it is done.

Nor should we wait for the courts.

Although the NLRB appointments are already the subject of litigation, we should take action ourselves rather than rely on others. The stakes are too high. On the other hand, even the OLC opinion recognizes, as it must, the litigation risk to the President.

For more than 200 years, Presidents have made very expansive claims of power under the Recess Appointments Clause. The President and the Senate have worked out differences to form a working government.

Now, the Obama administration seeks to upend these precedents and that working relationship. It may well find, as did the Bush administration, that when overbroad claims of presidential power find their way to court, that not only does the President lose, but that expansive arguments of presidential power that had long been a part of the public discourse can no longer be made.

Although I believe that this ironic result will ultimately occur here as well, the Senate must defend its constitutional role on its own, as intended by the framers of the Constitution that we all swore an oath to uphold.

Mr. President, John M. Gerrard is nominated to be United States District Judge for the District of Nebraska. Judge Gerrard received his B.S. degree from Nebraska Wesleyan University in 1975 and his J.D. from Pacific McGeorge School of Law in 1981.

He began his legal career in private practice as an associate for the Nebraska law firm of Jewell, Otte, Gatz, Collins & Domina. A year later, Judge Gerrard joined in a new law firm where he conducted primarily a general litigation practice. In 1990, Judge Gerrard and two partners formed a new law office. For the next 5 years, before being appointed to the bench, he engaged in an active trial practice and administrative law/school law practice.

In 1995, then-Governor Nelson appointed Judge Gerrard to the Nebraska Supreme Court. He has been retained (by election) in 1998, 2004, and 2010. He has written roughly 480 opinions, 450 of which are published. The opinions cover a variety of legal issues, including homicide appeals, tort issues, and evidentiary disputes. While serving on the State's highest court, Judge Gerrard has served on a number of committees, including those focusing on issues pertaining to gender, race and the judicial system.

The American Bar Association Standing Committee on the Federal Judiciary has rated Judge Gerrard with a unanimous ``Well Qualified'' rating.

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

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

Mr. President, I ask for the yeas and nays.

Mr. President, I have come to the Senate floor today to introduce, on behalf of 34 Senators, the Job Protection Act.

The Job Protection Act is occasioned by a decision by the acting general counsel of the National Labor Relations Board that filed a complaint to stop the Boeing Company from building airplanes at a nonunion plant in South Carolina, suggesting that a unionized American company cannot expand its operations in 1 of 22 States with a right-to- work law.

The right-to-work law protects workers' rights to join or not join a union. For example, in Tennessee we are a right-to-work State. In the case of a Saturn employee, where United Auto Workers is the bargaining agent, a worker doesn't have to join the union or pay dues, but he has to accept the UAW as his bargaining agent.

At the Nissan plant a few miles away from the General Motors plant, workers have three times elected not to have a union as their bargaining agent. That is what a right-to-work State is. There are 22 of them. The State of New Hampshire is in the process of deciding whether to become the 23rd. Their legislature is of one view, and their Governor is of the other view.

The Job Protection Act, which I introduce today on behalf of 34 Senators, would preserve the Federal law's current protection of State right-to-work laws in the National Labor Relations Act and provide necessary clarity to prevent the NLRB from moving forward in their case against Boeing or attempting a similar strategy against other companies.

Specifically, the Job Protection Act would, first, explicitly clarify that the board cannot order an employer to relocate jobs from one location to another; two, it guarantees an employer the right to decide where to do business within the United States; and, three, it protects an employer's free speech regarding the costs associated with having a unionized workforce without fear of such communication being used as evidence in an anti-union discrimination suit.

Mr. President, I ask unanimous consent to have printed in the Record the names of the 34 Senators who are original cosponsors of the Job Protection Act.

Mr. President, I ask unanimous consent to have printed in the Record at the end of my remarks two articles by the Wall Street Journal, the first written by me on April 29 and the second written by the president of the Boeing Company, Jim McNerney, who is also chairman of President Obama's Export Council.

Mr. President, now to make a few remarks about the actions that have caused this.

I just left a hearing in the Health, Education, Labor, and Pensions Committee on the middle class. One of the witnesses was the general counsel of the Boeing Company. As might be expected, given the notoriety of this case and the breathtaking scope of it, he got a lot of questions.

Let me first say why there is such a breathtaking scope here. Up until the filing of the complaint, one would assume that a manufacturing company, such as Boeing or a smaller company that wanted to open a new plant to create new jobs could make its own decision about where to do that. Then in doing so, it could take into account such factors as the cost of labor. It could take into account such factors as the labor relations within a State, as well as the geographical location of the State and many other factors.

The reason the decision by the acting general counsel has attracted so much attention is it basically says--or at least it suggests--to any company manufacturing a product in a State which is not a right-to-work State, such as Washington, that you better think twice before you open a new production line in one of the right-to-work States.

Let me talk for a moment about why that has an impact on the middle class in America. Thirty years ago I was Governor of Tennessee. We were the third poorest State. My goal was to raise family incomes and to create an environment in which they could be raised. I was a young Governor, but I knew enough to know the government did not raise the incomes but it might create a good environment for that to happen.

I went to my first White House dinner with the President of the United States. The President was then Jimmy Carter. The President said to us Governors at a very nice dinner--just the Governors and their spouses and the President and Mrs. Carter: Governors, go to Japan. Persuade them to make in the United States what they sell in the United States. I remember I called Dean Rusk, who had been Secretary of State, and asked him to visit with me. I talked to him about how to do this.

Off I went to Japan, which is not something I planned to do when I was walking across Tennessee trying to be the Governor. I met with the Nissan officials in Tokyo in the fall of 1979. At that time, Japanese companies seemed so powerful that there were books coming out saying they might take over the United States economy, but they were not making here what they sold here. They were making Nissan cars and trucks in Japan. They were making a decision about where to locate in our country. I took with me a photograph of the United States at night taken from a satellite. They asked: Where is Tennessee? I said: It is right in the middle of the lights. That reduced the shipping and transportation costs. Then the next decision was: Where in the center did they want to go? Every State north of us did not have a right-to- work law. Tennessee and the States around us did. Nissan chose Tennessee, and they and the General Motors plant that later came and the Volkswagen plant and thousands of suppliers have helped our middle class raise incomes over the last 30 years. A third of our jobs are auto manufacturing jobs because we provided an environment in which automakers can compete in the world marketplace.

Nissan said today that soon they will be making in the United States 85 percent of what they sell in the United States, which makes them a very American company. That is what we want. But this decision says we throw a big wet blanket over all the auto suppliers and manufacturers who might be thinking about moving into Tennessee or opening new plants in Tennessee or suppliers who might be wishing to follow Boeing to South Carolina because it says you cannot make that decision.

We have never had that kind of law in the United States. We have had a right-to-work law on the books since 1947. States have a right to adopt it or not to adopt it. The legislation I am offering today on behalf of 34 Senators does not change that, but it does preserve the right of States to adopt a right-to-work law, the right of employees to join or not to join a union, and the right of employers to make decisions about where to locate their plants and their ability to speak in public about what they are doing.

This is a most consequential decision. It is one that deserves the attention of every Senator because as the Boeing chairman, who is the head of President Obama's Export Council,

wrote in the Wall Street Journal this week, a union State would not be able to attract a manufacturer because a manufacturer might be afraid that any expansion could never be done in a right-to-work State. By simple mathematics, if Boeing, which is our largest exporter--155,000 employees in the United States, another 15,000 around the world--has a disincentive or if it cannot expand a new production line in a right- to-work State and if it might think twice about expanding in any other State, then where is it going to go? It is going to go to some other country.

This decision by the acting general counsel of the National Labor Relations Board is the single most important action I have seen in years that would rush American jobs overseas in pursuit of an environment in which they can build and manufacture competitively. It is just the reverse of what President Carter said to the Governors 30 years ago when he said: Governors, go to Japan. Persuade them to make here what they sell here.

We did that. They came here. They are making 85 percent of what they sell here. We want Volkswagen to do that. We want General Motors to do that. We want Ford to do that. We want Boeing to do that. And if we say to them, But we are going to tell you, the Federal Government is going to tell you where you have to locate your plants, you are going to override section 14(b) of the Taft-Hartley Act which was passed in 1947 and which has created an environment which has permitted American manufacturing to succeed.

All one has to do is read David Halberstam's book ``The Reckoning'' in the late 1980s to see that if our entire auto industry were still locked in Detroit, it would not be as competitive as it is today--cars made in America. I know that firsthand because I saw it happen when Nissan came to Tennessee. They did not hire a bunch of people from Japan to run the plant. They went to Detroit. They got Ford executives who knew how to run a plant but were not allowed to by the environment there, and they put them at a start-from-scratch place and created the most efficient automobile plant in North America.

We welcome also the General Motors plant and the United Auto Workers to their Spring Hill location in Tennessee. That is what a right-to- work State is where you can choose to join a union or not to join a union. Both can operate. Employees make the decision.

But when the Federal Government starts telling any company--a Boeing or a Boeing supplier, an auto company or an auto supplier or any manufacturing company--you cannot locate in a right-to-work State, they probably will not locate in a non-right-to-work State. Where are they likely to go? Mexico, Europe, Japan. Boeing sells airplanes all around the world. It can make airplanes all around the world. If we persist in policies such as this, instead of having a situation where our largest exporter has 170,000 employees, more than 150,000 of which are in the United States, we will turn that right upside down and they will be making 85 percent of their airplanes in the countries where they sell them, and the United States will have a lot fewer jobs.

This is a consequential matter that I hope attracts Democratic as well as Republican support. It preserves the right-to-work law. It preserves the choices of employees. It preserves the decision of corporations to make their own decisions about where to locate. It would stop a Federal Government regulation which is the single most effective action I know about to chase American jobs overseas and lower family incomes.

Exhibit 1

[From the Wall Street Journal, Apr. 29, 2011]

The White House vs. Boeing: A Tennessee Tale

(By Lamar Alexander)

The National Labor Relations Board has moved to stop Boeing

from building airplanes at a nonunion plant in South

Carolina, suggesting that a unionized American company cannot

expand its operations into one of the 22 states with right-

to-work laws, which protect a worker's right to join or not

join a union. (New Hampshire's legislature has just approved

its becoming the 23rd.)

This reminds me of a White House state dinner in February

1979, when I was governor of Tennessee. President Jimmy

Carter said, ``Governors, go to Japan. Persuade them to make

here what they sell here.''

``Make here what they sell here'' was then the union battle

cry, part of an effort to slow the tide of Japanese cars and

trucks entering the U.S. market.

Off I flew to Tokyo to meet with Nissan executives who were

deciding where to put their first U.S. manufacturing plant. I

carried with me a photograph taken at night from a satellite

showing the country at night with all its lights on.

``Where is Tennessee?'' the executives asked. ``Right in

the middle of the lights,'' I answered, pointing out that

locating a plant in the population center reduces the cost of

transporting cars to customers. That center had migrated

south from the Midwest, where most U.S. auto plants were, to

Kentucky and Tennessee.

Then the Japanese examined a second consideration:

Tennessee has a right-to-work law and Kentucky does not. This

meant that in Kentucky workers would have to join the United

Auto Workers union. Workers in Tennessee had a choice.

In 1980 Nissan chose Tennessee, a state with almost no auto

jobs. Today auto assembly plants and suppliers provide one-

third of our state's manufacturing jobs. Tennessee is the

home for production of the Leaf, Nissan's all-electric

vehicle, and the batteries that power it. Recently Nissan

announced that 85% of the cars and trucks it sells in the

U.S. will be made in the U.S.--making it one of the largest

``American'' auto companies and nearly fulfilling Mr.

Carter's request of 30 years ago.

But now unions want to make it illegal for a company that

has experienced repeated strikes to move production to a

state with a right-to-work law. What would this mean for the

future of American auto jobs? Jobs would flee overseas as

manufacturers look for a competitive environment in which to

make and sell cars around the world.

It's happened before. David Halberstam's 1986 book, ``The

Reckoning''--about the decline of the domestic American auto

industry--tells the story. Halberstam quotes American Motors

President George Romney, who criticized the ``shared

monopoly'' consisting of the Big Three Detroit auto

manufacturers and the UAW. ``There is nothing more vulnerable

than entrenched success,'' Romney warned. Detroit ignored

upstarts like Nissan who in the 1960s began selling funny

little cars to American consumers. We all know what happened

to employment in the Big Three companies.

Even when Detroit sought greener pastures in a right-to-

work state, its ``partnership'' with the United Auto Workers

could not compete. In 1985, General Motors located its $5

billion Saturn plant in Spring Hill, Tenn., 40 miles from

Nissan, hoping side-by-side competition would help the

Americans beat the Japanese. After 25 years, nonunion Nissan

operated the most efficient auto plant in North America. The

Saturn/UAW partnership never made a profit. GM closed Saturn

last year.

Nissan's success is one reason why Volkswagen recently

located in Chattanooga, and why Honda, Toyota, BMW, Kia,

Mercedes-Benz, Hyundai and thousands of suppliers have chosen

southeastern right-to-work states for their plants. Under

right-to-work laws, employees may join unions, but mostly

they have declined. Three times workers at the Nissan plant

in Smyrna, Tenn., rejected organizing themselves like Saturn

employees a few miles away.

Our goal should be to make it easier and cheaper to create

private-sector jobs in this country. Giving workers the right

to join or not to join a union helps to create a competitive

environment in which more manufacturers like Nissan can make

here 85% of what they sell here.

Few issues unite the United States Chamber of Commerce and the AFL-CIO; the National Association of Manufacturers and the Teamsters; the cable industry and the broadcast industry. By targeting the worst-of-the-worst and protecting the integrity of the Internet, we have been able to create a broad ranging coalition of support of the PROTECT IP Act. Along with law enforcement groups, more than 400 companies, associations, and unions have come together to support this targeted, bipartisan legislation to combat foreign rogue websites.

Protecting American intellectual property and the American jobs that depend on it is important. Last year we were able to reform our patent laws to unleash American innovators and help boost our economic recovery. Now we need to confront the threat to our economic recovery posed by Internet piracy.

As I have demonstrated throughout my service in the Senate and again during the last two years, I have remained flexible in terms of the legislative language in order to best meet our goals of stemming the criminality when protecting legitimate activities and guarding against doing anything to undercut innovation or fetter free discussion. I have urged those with concerns to come forward and to work with us. We adjusted the very definitions in the bill to narrow them as Senator Wyden had suggested. I announced two weeks ago that I took seriously the concerns about the domain name system provisions and would fix it as part of a manager's amendment when the bill was considered by the Senate.

I regret that the Senate will not be proceeding this week to debate the legislation, and any proposed amendments. I thank the Majority Leader for seeking to schedule that debate on this serious economic threat. I understand that when the Republican leader recently objected and Republican Senators who had cosponsored and long supported this effort jumped ship, he was faced with a difficult decision. My hope is that after a brief delay, we will, together, confront this problem. Everyone says they want to stop the Internet piracy. Everyone says that they recognize that stealing and counterfeiting are criminal and serious matters. This is the opportunity for those who want changes in the bill to come forward, join with us and work with us. This is the time to suggest improvements that will better achieve our goals. The PROTECT IP Act is a measure that has been years in the making, and which has been twice reported unanimously by the Senate Judiciary Committee to better enforce American intellectual property rights and protect American consumers. It has been awaiting Senate action since last May. Today the rogue foreign websites based in Russia that are stealing Americans' property are delighted to continue their operations and counterfeiting sweatshops in China are the beneficiaries of Senate delay. People need to understand that the PROTECT IP Act would only affect websites that have been judged by a federal court to have no significant use other than engaging in theft whether through stolen content or the selling of counterfeits. It is narrowly targeted at the worst-of-the-worst. Websites that have some infringing content on their sites but have uses other than profiting from infringement are not covered by the legislation. Websites like Wikipedia and YouTube that have obvious and significant uses are among those that would not be subject to the provisions of the bill. That Wikipedia and some other websites decided to ``go dark'' on January 18 was their choice, self imposed and was not caused by the legislation and could not be.

It was disappointing that sites linked to descriptions of this legislation that were misleading and one-sided. The Internet should be a place for discussion, for all to be heard and for different points of view to be expressed. That is how truth emerges and democracy is served. Last week, however, many were subjected to false and incendiary charges and sloganeering designed to inflame emotions. I am concerned that while critics of this legislation engage in hyperbole about what the bill plainly does not do, organized crime elements in Russia, in China, and elsewhere who do nothing but peddle in counterfeit products and stolen American content are laughing at their good fortune that congressional action is being delayed.

Nothing in PROTECT IP can be used to cut off access to a blog. Nothing in PROTECT IP can be used to shut off access to sites like YouTube, Twitter, Facebook or eBay. Nothing in PROTECT IP requires anyone to monitor their networks. Nothing in PROTECT IP criminalizes links to other websites. Nothing in PROTECT IP imposes liability on anyone. Nothing in PROTECT IP can be required without a court order, first, and without providing the full due process of our Federal court system to the defendants before a final judgment is rendered. I also note that the guarantees of due process provided in the PROTECT IP Act are those likewise provided every defendant in every Federal court proceeding in the United States, no less. The PROTECT IP Act requires notice to the defendant. If the plaintiff seeks an injunction, the court must apply Federal Rule of Civil Procedure 65, which is the standard for all courts in determining whether to issue an injunction, including whether to issue the injunction as a temporary restraining order for a limited period of time. When stealing of copyrights are involved, such court orders can be made if, upon a factual showing, a court finds that serious harm would otherwise occur and it is in the public interest to do so while the case is more fully considered.

The PROTECT IP Act is directed at the foreign websites that are the worst-of-the-worst thieves of American intellectual property and operate from outside the United States and the jurisdiction of our courts. These website operators prey on American consumers, steal from our creators and economy, but are currently beyond the jurisdiction of U.S. courts.

The Obama administrative officials were right in a recent post saying ``existing tools are not strong enough to root out the worst online pirates beyond our borders.'' They called on Congress ``to pass sound legislation this year that provides prosecutors and rights-holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined. . . . We should never let criminals hide behind a hollow embrace of legitimate American values.'' That is what we are trying to do with the PROTECT IP Act.

What the PROTECT IP Act does is provide tools to prevent websites operated overseas that do nothing but traffic in infringing material or counterfeits from continuing to profit from piracy with impunity. The Internet needs to be free, but not a lawless marketplace for stolen commerce and not a haven for criminal activities.

In the flash of interest surrounding this bill last week, those who were forgotten were the millions of individual artists, the creators and the companies in Vermont and elsewhere who work hard every day only to find their works available online for free, without their consent. There are factory workers whose wages are cut or jobs are lost when low-quality counterfeit goods are sold in place of the real thing they worked so diligently to produce. There are men and women of our National Guard and military who put their lives on the line for all of us every day, and for whom a counterfeit part can literally be a matter of life and death. There are the seniors who are struggling to be able to afford medications and order from what appears to them to be a reputable site, only to find that a foreign website has sent them an untested counterfeit drug that will not control their blood pressure or diabetes or heart problem.

At the end of the day, this debate boils down to a simple question. Should Americans and American companies profit from what they produce and be able to provide American jobs, or do we want to continue to let thieves operating overseas steal that property and sell it to unsuspecting American consumers? I hope that in the coming days the Senate will focus on stopping that theft that is undercutting our economic recovery. I remain committed to confronting this problem. And I appreciate the efforts of Senator Kyl, Senator Alexander and others who want to continue to work in a thoughtful manner with all interested parties to find an effective solution to eliminate online theft by foreign rogue websites. I thank those Senators who called me in Vermont and back here this past week when I got back to Washington to offer their help--Senators on both sides of the aisle. It means a lot.

I know the senior Senator from Nebraska is waiting to speak about the judicial nominee from his State. I will say what I said to him privately because I know this is his last year in the Senate. I have always enjoyed working with him. He has worked hard. He has represented the people of his State well. He has been very honest in his dealings with me. He has been diligent with respect to judicial nominations for vacancies in Nebraska. He has tirelessly pressed to fill vacancies there to ensure cases before the Federal court are not needlessly delayed. He did that to protect everybody in Nebraska, Republicans and Democrats, to make sure the courts are open for them.

I am sorry the confirmation of Justice Gerrard, one he so strongly supported, has been so needlessly delayed for more than 3 months, but I say to the people of Nebraska they are very fortunate to have been represented by the senior Senator from Nebraska, my friend Ben Nelson, who has been there fighting for them. He fought for the people of Nebraska every day from the day he took the oath of office. This may be his last year here, but based on past performance I think it is safe to say he will fight for Nebraska right up until the moment that adjournment bell sounds.

Mr. President, I ask unanimous consent a January 19 article from the Wall Street Journal and a January 22 article from the Washington Post be printed in the Record.

Mr. President, I rise this afternoon to discuss an important piece of bipartisan legislation that I am introducing today with my friend and fellow New Englander, Senator Snowe, to establish a national endowment for the study, conservation, and restoration of our Nation's oceans, coasts, and Great Lakes.

Let me begin with a particular thank-you to our original cosponsors: the chairman of the Commerce Committee, Senator Rockefeller of West Virginia; the chairman of the Appropriations Committee, Senator Inouye of Hawaii; my colleague from the great State of Michigan, Senator Stabenow; and two colleagues from the Gulf of Mexico region, Senator Bill Nelson of Florida and Senator Landrieu from Louisiana.

As any Rhode Islander can tell you, the ocean is central to our State's way of life. I tell colleagues that Rhode Island's coast is one of the most beautiful places on Earth. But we don't call Rhode Island the Ocean State just because it is beautiful. We are the Ocean State because from our earliest days we have relied on the ocean and our beloved Narragansett Bay for trade, for food, for recreation, and for jobs in the shipbuilding, shipping, fishing, and tourism industries.

And we are not alone--across America, our oceans and coasts directly provide over $130 billion to our country's gross domestic product, and support 2.3 million America jobs. But one impact goes far beyond that.

Our coastal zone areas generate nearly 50 percent of our Nation's gross domestic product and support more than 28 million jobs.

In part, it is Americans' love of and reliance on the oceans that drives the need now to protect and restore them. Coastal America is experiencing a huge population boom, leading to more and more construction that puts significant pressure on our natural coastline and our wetlands.

Worldwide demand for seafood grows at a pace that our fish stocks cannot keep pace with, and our demand for energy leads us ever deeper into the ocean in search of fuel.

There is an old adage, that nothing focuses the mind like a crisis. If this is true, it must be time to focus on taking care of our oceans, because I believe that our oceans are facing what can be characterized as nothing less than a crisis. Our oceans are facing an array of threats, from marine debris aggregating in gyres the size of Texas, to whales so full of bio-accumulative toxins that they constitute swimming hazardous waste.

These are just a few of the headlines from just the past year:

This spring, we have watched in horror as Japan, already suffering from a terrible earthquake and tsunami--and our hearts go out to them-- battled to keep the Fukushima Nuclear Plant intact. Leaks from the plant have sent harmful levels of radiation into the ocean.

In July of 2010, the Midwest experienced its largest oil spill ever, after a leaking Michigan pipeline poured oil into the Kalamazoo River and thence into the Great Lakes.

Last June, the journal Science published a literature review by researchers from the University of Queensland

and UNC Chapel Hill, revealing mounting evidence that:

Rapidly rising greenhouse gas concentrations are driving

ocean systems toward conditions not seen for millions of

years, with an associated risk of fundamental and

irreversible ecological transformation.

In my home State of Rhode Island, the Narragansett Bay has witnessed a 4-degree increase in average annual winter water temperature, causing what amounts to a full ecosystem shift.

And of course, in April 2010, we witnessed the horrific explosion of the Deepwater Horizon, the tragic loss of life, and the unfolding of the largest environmental disaster our country has ever seen. The Gulf of Mexico, and the people who depend on this ecosystem for their sustenance and livelihoods, are still struggling to recover.

We are now 13 months beyond the Deepwater Horizon explosion. Lives are still shattered; livelihoods reliant on the gulf ecosystem are still threatened. But we are within the window of action. It is not too late to provide for short-term restoration of the gulf coast to enact legislation that reduces the risk of future oilspills, and as my cosponsors and I seek to provide dedicated funding to study, protect, and restore the marine and coastal ecosystems within the United States' boundaries.

The National Endowment for the Oceans is our proposal to meet this last challenge. The Endowment would make grants available to coastal and Great Lakes States, local government agencies, regional planning bodies, academic institutions, and nonprofit organizations so these entities could embark on projects to learn more about and do a better job of protecting our precious natural resource. Projects that allow researchers to hire technicians, mechanics, computer scientists and students. Projects that put people to work relocating critical public infrastructure jeopardized by sea level rise. Projects that solve resource management problems and restore our natural ecosystems. Projects that protect jobs by restoring commercial fisheries habitat, and creating new fisheries gear for sustainable and profitable fishing.

The National Oceanic Atmospheric Administration received $167 million for coastal restoration projects under the Recovery Act. More than 800 proposals for shovel-ready construction and engineering projects came in, totaling $3 billion worth of work. But NOAA could only fund 50 of the 800.

The National Endowment for the Oceans would help us move forward with these projects and others that protect our oceans and drive our economy. As I stand here today, more than a year after the beginning of the oilspill in the gulf, and in the face of mounting evidence that our oceans and coasts are truly facing a crisis, I understand the feelings of concern and frustration. But, again, I believe it is not too late.

In fact, I believe the time is now to pass legislation that will help to restore the gulf ecosystem. The time is now to pass legislation that will reduce the risk of future oilspills. And it is time now to provide dedicated funding for the study, restoration, and protection of our Nation's ocean and coastal resources.

We need to put the stewardship of our natural resources, our ocean resources, at the forefront of our national agenda. The National Endowment for the Oceans, as I said, is bipartisan. I thank Senator Olympia Snowe for her leadership in this effort. This legislation is science based, with much of the money made available through a competitive grant program. This legislation is cost effective, coordinating existing efforts of Federal, local, and private programs, reducing duplication of research efforts, and crossing political borders to ensure that every dollar is spent with the greatest possible effect.

Finally, this legislation is appropriately paid for with revenue generated from the Oil Spill Liability Trust Fund, a portion of royalties from Outer Continental Shelf energy development, and fines and damages collected for violations of Federal law off our coastline. Put simply, a small portion of the revenue we extract from our oceans and great waters will be reinvested to now protect the long-term viability of those oceans and great waters.

The ocean provides us with great bounty, and we will continue to take advantage of that, as we should. We will fish, we will sail, and we will trade. We will dispose of waste. We will extract fuel and construct wind farms. Navies and cruise ships, sail boats and supertankers will plow the ocean surface. We cannot change how reliant we are on our ocean. What we can change is what we do in return.

We can for the first time give back. We can become stewards of our oceans, not just takers but caretakers. The oceans contain immense potential for new discoveries, immense potential for new jobs, and immense potential for new solutions to the emerging oceans crisis. But to meet the demands of this moment, we must respond to the challenges before us. We must heed the alarm bells that are ringing from the arctic seas to our tropic oceans, from the top of the food chain to the bottom, alarm bells indeed are ringing.

I urge my colleagues to join Senator Snowe and myself in support of the National Endowment for the Oceans. Let ours be the generation that tips the increasingly troubling balance between mankind and our oceans a little bit back toward the benefit of our oceans for the long-term benefit of mankind.

Mr. President, last weekend we observed Mother's Day and celebrated our families. When we reflect on our own mothers, many of us think about the woman who nursed us when we were sick, took us to the doctor for checkups, and cared for our grandparents as they aged, while at the same time working to put food on the table.

These balancing acts are hard enough. But for many moms, and dads, across the country, juggling all these roles means making impossible choices. This is especially true for people who do not have the basic right of paid sick days. For these workers, missing work due to an illness, injury, or doctor's appointment can mean putting their job and their family's financial security in jeopardy. So they are forced to choose between the jobs they need and the families they love. In these difficult economic times, no one should have to make that choice.

But for a huge segment of the American workforce, these difficult choices are a daily reality. Four in ten U.S. workers have no paid sick days, they cannot miss a day of work with the guarantee of their pay or the assurance that their job will be there when they come back. What is more, 2/3 of low-wage workers, those who can least afford to lose a paycheck or a job, have no paid sick days. This means many of these workers report to work sick or send their children to school or day care sick, spreading their illness to others.

This robs workers of their basic dignity, and that shouldn't happen in a country as wealthy and successful as America. In fact, the U.S. is the only developed country that does not guarantee paid sick days to its workers, and our workers are the most productive in the world! America's workers deserve to earn a decent living; a living where they can provide for their families without being punished when they or their children catch the flu. America's workers deserve paid sick days.

Lack of access to paid sick days isn't just a crisis for individual families--it's a public health crisis as well. Health officials urge people with contagious illnesses to stay home from work to avoid spreading disease. But the workers in industries with the most contact with the public, such as food service and hospitality, are the least likely to have paid sick days. A recent survey shows that nearly two- thirds of restaurant workers, 3/4 of whom don't have paid sick days, report cooking or serving food while sick. This puts the health of all of us in jeopardy. And not having paid sick days puts these workers in the terrible position of choosing between the health of their customers and their family's health and economic security.

But this doesn't have to be the case. We can give working people the tools they need to protect their health and their families' health while also safeguarding the public health. Workers want to do the right thing and stay home when they are ill or stay home with their sick children rather than sending them to school. But our current laws simply do not protect them.

This is why Congresswoman Rosa DeLauro and I are introducing the Healthy Families Act, which will allow U.S. workers to earn up to 7 paid sick days per year to recover from short-term illness, care for a sick family member, seek routine medical care, or seek help if they are victims of domestic violence. This important legislation will provide much-needed security for hardworking families struggling to balance the obligations of work and family. It will improve public health and decrease health costs by preventing the spread of disease and giving employees the access they need to obtain preventive care and treatment. It will also help victims of domestic violence to protect their families and their futures.

Providing paid sick days to workers will be good for working people and their families, and good for our businesses and our economy as well. Allowing workers to tend to their health or their families' engenders good will and loyalty, and boosts morale at the workplace. Businesses will save because the greatest cause of lost productivity due to illness is not absenteeism but ``presenteeism,'' the practice of sick workers coming to work, infecting their colleagues, and being less productive themselves. Businesses whose workers have paid sick days will also benefit from reduced turnover, and its high associated costs, when workers can hold on to their jobs. Experience bears this out, in San Francisco, where workers have had guaranteed paid sick days since 2007, surveys show that 6 out of 7 employers found no negative effect on profit. Indeed, 4 years after implementation, two-thirds of surveyed employers were supportive of the city's paid sick days law.

The overall economy will benefit from reduced health costs as well. Ensuring that workers are able to seek preventive care as well as care in a doctor's office, rather than the ER, will minimize health care costs. Reducing the spread of contagious illnesses by allowing workers or children to stay at home where they won't infect their coworkers or classmates will also reduce health costs by keeping more people healthy in the first place.

Most of all, workers will have peace of mind and financial security. They won't be faced with a potentially long search for new work, while collecting unemployment benefits. They won't face reduced income and having to cut back on their spending on food, medicine, and other necessities bought in their local communities. Working people will have the security of knowing that if illness strikes, they will be able to tend to their families without losing their jobs or their paychecks.

The Healthy Families Act has had the strongest of Senate champions who have led the fight for workers' rights, Senator Kennedy and Senator Dodd. I am proud to be the new leader for this vital piece of legislation. I thank my colleagues who are joining me today as original cosponsors, and I encourage all Senators to join us in supporting the Healthy Families Act. This bill will provide health, peace of mind, and security for America's workers and their families. At a time when the American Dream and the middle class seem to be slipping away, these goals could never be more important.

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