Formula Act

Reserving the right to object.

One of Congress's most basic jobs is the power of the purse. Americans rely on this body to provide Federal funds for programs that support national defense, small businesses, border defenses, conservation of public lands, food assistance for the poor, and so much more.

And as a longstanding member of the Appropriations Committee, I am proud of the work that the Appropriations Committee has done to meet the needs of this Nation. And as a senior Senator from New Hampshire, when I talk to small business owners, educators, healthcare professionals, community leaders across my State, it is unfortunate that not all of the needs of our State are being met.

And for years, New Hampshire, like most small States in this country, has received among the lowest apportionments in the country from formula grant programs that are administered by our Federal Agencies.

Congress has long used earmarks or congressionally directed spending to address funding gaps and inequities between the States. And, in fact, Senator Judd Gregg--whom I had the pleasure of serving with both when he was Governor and I was in the State senate and then when he was in the Senate and I got elected--was a big supporter of congressionally directed spending because he believed, like I do, that I know better how money should be spent in New Hampshire than a bureaucrat here who was making decisions about how to spend Federal dollars.

Congressionally directed spending levels the playing field for States like New Hampshire, and even for Indiana, to ensure that our communities can get their fair share to address our local needs.

Unfortunately, back in 2011, when Congress instituted a ban on congressionally directed spending, we ceded the power of the purse to unelected officials in the executive branch. And while I know that many of these individuals are dedicated bureaucrats, they are public servants. They don't necessarily understand the needs of New Hampshire in the same way that I do as somebody who has represented that State for decades.

So that is why I was very pleased that under the leadership of Chairman Leahy and Ranking Member Shelby, Congress once again passed a bipartisan bill to include congressionally directed spending in our budget process.

And when we did that, the Appropriations Committee instituted some major reforms to improve accountability and transparency in the process of congressionally directed spending.

I am going to talk about some of those reforms because while I appreciate the perspective of my colleague from Indiana, I think he has not pointed out the reforms that exist in the process of congressionally directed spending.

First of all, Members are required to certify that neither we nor any member of our immediate family would financially benefit from the requests that are made. Secondly, those congressionally directed spending requests have to be made in writing and posted online by the Member and the Appropriations Committee so that the public has every opportunity to view the name and location of the project, the intended recipient, and the purposes of that request. For example, the requests for fiscal year 2023 are available online right now before they would be available if this government, this administration, were determining how to spend that money.

So the Senator from Indiana doesn't have to wait until those Senate bills are posted to inspect congressionally directed spending projects.

The reforms also include a 1-percent cap on discretionary spending for CDS items and a ban on congressionally directed spending items to for-profit entities.

Finally, the Appropriations Committee requires the Government Accountability Office to audit a sample of enacted congressionally directed spending items to ensure that Congress is being held accountable for these projects.

The chair and ranking member instituted these reforms to restore the trust of the American people in the appropriations process, and I believe it is

working. And I can tell you, as I travel around New Hampshire, it is one of the things that I hear from people in our communities that they are interested in.

They want to know about the appropriations process, and they want to know what other opportunities are there to support initiatives that may not fit within some grant program, that they may not be able to raise money in the private sector for but that are very important for our communities.

The resolution sponsored by the Senator from Indiana would require the chair of the Senate Appropriations Committee to certify that not just Senate earmarks have been disclosed but that all House earmarks have been disclosed.

I think that bill is a solution in search of a problem. The House already has its own rule that governs congressionally directed spending items, and it is required to identify these items.

It knows what its Members have requested, and it is responsible for disclosing them. Requiring the Senate to confirm that the House has done its job before we can consider a message from the House is unnecessary, and it could stop consideration of appropriations bills before they ever get here.

The resolution sponsored by my colleague from Indiana would change Senate rule 44 in ways that could have unintended consequences and could delay critical funding for projects that are important in my home State of New Hampshire and in so many States across this country.

So given all of those concerns, I object.

Mr. President, I ask unanimous consent that at 1:45 p.m., the Senate proceed to executive session and the Senate immediately vote on confirmation of Executive Calendar No. 902, the nomination of Shereef Elnahal.

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

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 8351) to amend the Harmonized Tariff Schedule of the United States to suspend temporarily rates of duty on imports of certain infant formula products, and for other purposes.

Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous material on the bill under consideration.

Madam Speaker, I yield myself such time as I may consume.

The news about supply chain disruptions have filled the news, but none is more compelling and urgent for communities across America than facing challenges due to the infant formula shortage. This is an urgent issue for our families.

Between supply chain issues due to the pandemic and the closure of a Michigan infant formula plant, out-of-stock rates have reached perilous levels. The out-of-stock rate was 31 percent in mid-April and rose to 90 percent in 10 States by the end of May. In my State, Oregon, we faced an out-of-stock rate higher than 85 percent.

While these numbers alone tell a horrific story, there is no number that can capture the fear and frustration felt by families who are searching for formula to serve their babies. As a parent and grandparent, I can assure you that there is nothing as anxiety- and anger-

inducing as not being able to properly care for your child.

I have heard stories of families going store to store or posting on social media asking for help as they try to find the formula their family needs. Families have enough to worry about without worrying about how to feed their baby.

The Federal Government must provide the support needed to help these children and families and explore every possible option. This administration and Congress has made significant progress by invoking the Defense Production Act, increasing flexibility for the WIC program, and easing restrictions on imports to fill supply chain shortages.

While the FDA has exercised enforcement discretion to increase imports, imported infant formula remains subject to high tariffs. These tariffs, which increase the cost of the formula imports by an estimated 27 percent, only exaggerate the suffering families face at this time.

It is unacceptable that families would be taxed on a product that they need and have no other way of getting in the midst of this crisis. Our Ways and Means Trade Subcommittee is committed to leveraging our jurisdiction to reduce these costs.

I especially appreciate my colleague Suzan DelBene for her partnership and leadership on this legislation. She was integral to this effort, and we wouldn't be here today without her.

The Formula Act reaffirms Congress' constitutional authority to regulate commerce from foreign nations by temporarily suspending tariffs on imported infant formula through the end of this year. This change should help make formula more affordable and accessible to families in every State.

I am grateful for the support of Chairman Neal; Ranking Member Brady; Ranking Member Smith, who is managing the bill for the Republicans; and the Ways and Means Committee in bringing this bipartisan legislation to the floor today.

Madam Speaker, I urge my colleagues to support the legislation, and I reserve the balance of my time.

Madam Speaker, I yield such time as she may consume to the gentlewoman from Washington (Ms. DelBene), a committee member and a leader on this issue.

Madam Speaker, I yield 3 minutes to the gentleman from Michigan (Mr. Kildee), a senior member of the Ways and Means Committee.

Madam Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

Madam Speaker, I yield myself such time as I may consume.

I appreciate the partnership with my good friend, Mr. Smith. We have been able to move this expeditiously. I do appreciate his observation that there are challenges that we meet, and we would hope that our government and the various agencies that are involved are able to respond quickly. That, of course, is something that we need to empower them to do, these partnerships.

Sometimes there is a little tension about the role and nature of government agencies, but this is an example, admittedly, where we want to get ahead of the curve, and the powers that agencies have can be used constructively.

I am pleased that our committee, for example, sprang into action dealing with the invasion of Ukraine by Russia to suspend tariff advantages for Russia, and we moved that quickly on a bipartisan basis. Particularly in this case we have 26 members of the Ways and Means Committee who are cosponsoring this legislation, and it was able to move quickly.

Unlike what often happens with things we pass in the House that linger in the Senate, it looks like the Senate is poised to be able to act quickly in response to our action here today.

So I hope we come together. I hope we have a unanimous vote that would suspend this 27 percent additional cost on families struggling to meet the needs of their children. I hope that we can continue to look at areas where we need to refine tools to make sure that things like this don't happen again and we work together to try to hit the right balance.

In the meantime, I think we have hit the right balance with this legislation. I appreciate the partnership, and I look forward to its passage today.

Madam Speaker, I yield back the balance of my time.

Mr. President, I rise today to fix a troubling loophole in our earmark rules. Earmarks are something I strongly oppose. I believe they breed corruption, overspending, waste, and abuse.

There has been bipartisan concern about the earmarking process for decades. In 2007, the process got so out of control that even earmarking's biggest supporters decided we needed guardrails.

The Senate passed the Honest Leadership and Open Government Act. The bill created Senate standing rule 44, which requires the authors of any bill considered by the Chamber to do this: identify each earmark contained in the bill and ensure that the text is publicly available at least 48 hours prior to proceeding to the bill.

These two protections helped shine light on the earmarking process. There was significant bipartisan support for the protections in rule 44.

In 2007, on the Senate floor, Senator Hillary Clinton said that rule 44 would help curb wasteful spending by creating greater transparency ``in the earmark process.'' It was nearly unanimous, including the two Senators from New Hampshire.

I want to read a portion of her comments.

I believe we can improve accountability by mandating

publication of the earmark for a minimum period of time prior

to any vote on the underlying measure, ensuring that both

other elected officials and the general public have the

opportunity to scrutinize the sponsored outlay. Taking these

common-sense steps would ensure that legislators are made to

answer for the spending they cosponsor.

A quote from Hillary Clinton. I couldn't agree more, in this case. But the drafters of Senate rule 44 left something out. The rule does not apply to legislation brought to the floor as an amendment from the House.

This means that a determined majority can ignore the protections offered under the rule simply by using a common procedural mechanism.

The bill I seek to pass today closes this loophole. Senator Durbin commented about how important it was back then as well.

Congress should abide by the rules it created for itself. We recently saw the consequences of this loophole. The Omnibus appropriations bill considered in March contained nearly 5,000 earmarks, totaling nearly $10 billion. The Senate passed the bill less than 48 hours after receiving the text, in violation of the spirit of rule 44.

As Dr. Tom Coburn used to say in this Chamber, earmarks are a ``gateway drug.'' We must close this unintended loophole before the situation gets worse. In fiscal year 2010, the last year of earmarking before the congressional ban, Congress passed 11,000 earmarks at a sum of $32 billion. We cannot go back there.

Earmarks give Congress a personal incentive to vote for the huge spending bills that are dragging America into bankruptcy. I talked about it last night when I introduced my own budget to try to go the other direction.

Return of earmarks will mean the return of earmark scandals and earmark corruption much sooner than you think. Let's do the minimum to prevent this.

I ask unanimous consent that the Committee on Rules and Administration be discharged from further consideration and the Senate now proceed to S. Res. 687; further, that the resolution be agreed to and that the motion to reconsider be considered made and laid upon the table.

Mr. President, with all due respect to the Senator from New Hampshire, Senator Shaheen, back in 2007, both New Hampshire Senators Gregg and Sununu as well as all 98 Senators who voted back then I think intended not only for the letter of the law but they wanted the spirit of the law to be aligned with it.

We now have a new way, something that can come over here that violates a standing rule of the Senate. I am guessing it will probably be used again down the road where we have to get something, we have no time to look at it. I think the spirit of the law would say that we need the 48 hours and the ability to know who is on it and who isn't.

And then in the bigger picture, I would ask this question--and the American public ought to listen, ask it themselves--is this place getting more responsible or are we giving better value to you? Do we budget? Do we use regular order? And most importantly, are we creating more and more deficit and more and more debt?

We know what the answer is. I talked about it for 15 minutes yesterday evening. We are doing everything we can to avoid the rules, pay attention to the spirit of the law. And in what we are delivering, it is a product I think that shows less and less responsibility out of a body that should not be making rules that make it easier to run deficits and go into debt. It ought to be the opposite.

And if we don't, I think future generations will hold us accountable for the things that we seem to do best, which are the gimmicks to get around budgeting, avoiding the rules on a technicality.

The American public deserves better.

I yield the floor.

Mr. President, for months now, American babies have endured an unprecedented and prolonged formula shortage. Some doctors have called this the worst crisis of their careers. It has become so widespread that nearly everyone knows someone who has been personally affected. Desperate parents have scoured online marketplaces. They reached out to family and friends for help. They paid exorbitant markups just to feed their babies. In some worst-case scenarios, some have even resorted to dangerous homemade formulas. In the U.S.A., no parent should be left to wonder how they are going to feed their newborn baby.

After months of work and bipartisan collaboration with my colleagues in the House and the Senate, I rise to pass needed reforms that will finally provide relief to hungry babies. Today, we can take action to alleviate a crisis largely of the Federal Government's own creation.

Poor governance has crippled our domestic formula market. Tariffs and regulations have prevented safe foreign formulas from entering the United States, even while we are experiencing this acute shortage at home.

Currently, the government imposes a 17.5-percent minimum tariff on formula imports. This tariff has stifled competition. But it doesn't have to be that way. We can lift these substantial tariffs on the importation of baby formulas and reduce the costs borne by retailers to provide access to safe, affordable formula. Doing so will expand the severely limited formula options for American consumers. This modified version of the Formula Act does just that by waiving these tariffs through the end of this year.

While passing my bill won't provide immediate relief, our work is far from complete. I am committed to doing everything I can not only to provide this relief now but also to make the necessary permanent reforms to our system to ensure that a crisis like this never arises again.

We still have work to do, and we must further our efforts by allowing WIC recipients to buy whatever brand of formula might be available. We must make meaningful reforms to how the FDA regulates the formula industry. Passing this bill today is the first step. In the meantime, I am actively working on expanding the list of products to receive temporary relief from tariffs. While this is an important first step, it is certainly not the last.

This crisis is such that American babies cannot wait any longer than they already have. We have a moral obligation to these infants to say that we did everything we possibly could to fight for them.

Passing the Formula Act will be an incredible win for families and hungry babies everywhere. It will make meaningful headway that is so desperately needed today. By suspending the tariff on formula imports, we are providing cheaper access to individual consumers and to retailers alike. This relief has been long overdue and long overdue especially for Utahns, who have the largest families, the most children per capita, and the highest birth rate.

I am grateful for the countless hours of behind-the-scenes work and successful negotiations with my colleagues, Democrats and Republicans alike, in the House and in the Senate, which have resulted in a win for our most vulnerable Americans--babies. I look forward to continuing this important work with them.

Passing my Formula Act today is a victory for families and for babies everywhere.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 8351.

I ask unanimous consent that the bill be considered read a third time.

I know of no further debate on the bill.

I ask unanimous consent that the motion to reconsider be considered made and laid upon the table.

Mr. President, I wish to submit to the Senate a budget scorekeeping report. The report, which covers fiscal year 2022, was prepared by my staff on the Budget Committee and the Congressional Budget Office pursuant to section 308(b) and in aid of section 311 of the Congressional Budget Act of 1974, as amended. This information allows the Senate Budget Committee to determine if budgetary points of order lie against pending legislation.

The report shows the effect on spending and revenues of congressional action through September 15, 2022, as compared to the levels the Senate agreed to in the budget resolution for fiscal year 2022, S. Con. Res. 14. Since my last scorekeeping report on April 28, seven laws with significant budgetary effects have been signed by the President, and I have revised the levels in the budget resolution two times for legislation.

The Democratic staff of the Budget Committee prepared tables 1 and 2. Table 1 compares the mandatory spending of each authorizing committee against the enforceable allocations under section 302 of the Congressional Budget Act. It shows 10 of the 16 authorizing committees are in compliance with their allocations, either because no legislation with significant budgetary costs was enacted or the legislation qualified under the budget resolution for an allocation adjustment. Most of the spending above allowable levels is attributed to either the CHIPS Act of 2022 or the Honoring our PACT Act of 2022.

Table 2 shows the Senate pay-as-you-go--PAYGO--scorecard tallying enacted legislation with significant effects on mandatory spending and revenues. The scorecard shows a savings of $4.7 billion in 2022, a deficit of $174 billion over the 2022-2026 period, and a deficit of $528 billion over the 2022-2031 period. When compared to the allowable amounts on the PAYGO scorecard last adjusted on September 12, there is a deficit of $1.3 billion on the scorecard for 2022, $185 billion over the 2022-2026 period, and $667 billion over the 2022-2031 period.

In addition to these tables, I am submitting a letter from the Congressional Budget Office with further detail. For fiscal year 2022, current budgetary levels are within allowed amounts. Current law budget authority is $2.6 billion below the maximum allowed in the revised budget resolution, outlays are $17 billion below the allowed maximum, and revenues are $68 million above the allowed minimum. The tables also show that there has been no net change for Social Security.

I ask unanimous consent that the letter and accompanying tables from CBO be printed in the Congressional Record.