Floor Statements

Madam President, I rise to speak on the current state of partisan budget negotiations.

For weeks now, the offices of the Senate majority leader, the House Speaker, and the White House have been engaged in serious talks seeking a long-term budget agreement. It has been a long hard process. There have been a lot of fits and starts in the negotiations. But it is no exaggeration to say that as of last week talks were on a smooth path toward a compromise. The Speaker's office was negotiating in good faith. The parties significantly narrowed the $51 billion gap on how much spending should be cut. House Republican leaders had agreed to come down from H.R. 1 and meet us halfway. We could begin to see light at the end of the tunnel.

But suddenly, at the end of last week, House Republicans did a strange thing: They pulled back from the talks. They changed their minds about what level of spending cuts they could accept. We were on the verge of a potential breakthrough, and they suddenly moved the goalposts. We felt a little bit like we were left at the altar. Not only did they abandon the talks, they started denying that they were ever close to a deal in the first place. Majority Leader Cantor issued a statement Friday saying that reports that progress was being made were ``far-fetched.'' It was as if they decided that even the appearance of a looming compromise was a political liability. It was surreal.

It is no surprise what happened. The headline of today's story in the National Journal says it all:

With Revolt Brewing, GOP Backs Off Deal.

Let me repeat that because that is really what is going on here and the news of the day in the last few days:

With Revolt Brewing, GOP Backs Off Deal.

The story reads:

Concerned about a revolt by the conservative, tea party-

wing of the party, GOP leaders have pulled back from a

tentative deal to cut roughly $30 billion in cuts from

current spending levels. The influence that tea-party

conservatives now exercise over the process put the chances

of a compromise seriously in doubt.

The story continues:

The GOP pulled back from that agreement last week after

House Majority Leader Eric Cantor, R-Va., and Majority Whip

Kevin McCarthy, R-Calif., warned House Speaker John Boehner,

R-Ohio, that the deal would trigger a revolt from tea-party

conservatives.

In other words, as soon as House Republican leaders took one step toward compromise, the tea party rebelled, so they took two steps back.

The National Journal story describes an offer that was put on the table by the White House that would have met House Republicans halfway. The offer falls squarely in the ballpark of Congressman Ryan's original budget proposal with roughly $70 billion in spending cuts compared to the President's budget request. This is a significant move in the Republicans' direction. These are more cuts than many on our side might support, but it shows how seriously the White House is about wanting a compromise to avert a shutdown. If they are planning to reject such an offer, it is clear they won't take ``yes'' for an answer and are seeking a shutdown. The Republican leadership in the House, with the tea party breathing down their back, won't take

``yes'' for an answer and won't support the original proposal made by Budget Chairman Ryan of roughly $70 billion in spending cuts. We know Congressman Ryan is hardly a liberal or a moderate. It shows how far to the right the Republican leadership is being forced to move by the tea party.

This level of spending cuts was good enough for House Republicans earlier this year when Hal Rogers released his original proposal. But the tea party hollered, and House Republicans were forced to double their proposed spending cuts to an extreme level of $61 billion. When that happened, Hal Rogers said the House was moving beyond what was reasonable and into territory where they could never get a deal. Tom Latham of Iowa agreed that in forcing H.R. 1 to go from $30 billion to $60 billion in cuts, the tea party was forcing Republicans to go beyond what was ``enactable.'' These are conservative Republicans saying that the present House proposal is not enactable, cannot pass. Just as the tea party forced mainstream Republicans into extreme territory before, they are doing so again. Anyone who looks at this objectively sees that is what is happening.

The Speaker has said all along that he wants to avoid a shutdown at all costs. I believe him. He is a good man. The problem is, a large percentage of those in his party don't feel the same way. They think ``compromise'' is a dirty word. They think taking any steps to avert a shutdown would mean being the first to blink. So Speaker Boehner is caught between a shutdown and a hard place. He has caught a tiger by the tail in the form of the tea party. There is even a tea party rally planned for later this week to pressure the Speaker not to budge off

I thank the chairman, and thank you, Mr. President.

First, I express my gratitude and thanks to the chairman of our Judiciary Committee, Senator Leahy. Senator Leahy has conducted his chairmanship, as head of the Judiciary Committee, with fairness and strength and honor, and he has tried to bend over backwards to get our colleagues on the other side of the aisle fair hearings and equality in a certain sense.

I regret that too many of our colleagues on the other side of the aisle are blocking judges. It is not fair and it is not right. I hope they would heed Senator Leahy's call to avoid tit for tat and bring more judges to the bench.

(Mr. LEAHY assumed the chair.)

As I said, I have not seen a chairman--now he is the Presiding Officer of the Senate for the moment--I have not seen a chairman try to be fairer and with more patience and more honor as chair of the Judiciary Committee than Senator Leahy. I hope my colleagues will heed his call because he is trying to be as fair and down the middle as possible at a time when we have a record number of vacancies in too many of our circuits.

I rise today to express my full support for Mae D'Agostino, the nominee for the United States District Court for the Northern District of New York. I am very hopeful we will confirm her with overwhelming support tonight, and I agree wholeheartedly with Chairman Leahy that we should proceed quickly to confirm the other nominees for the many long vacant seats across the country.

Mae D'Agostino's entire career is a tribute to her skill, her intelligence, and her pioneering spirit. When she is confirmed today, she will be the only woman sitting on the Federal bench in upstate New York, and only the second in the history of the region.

Mae D'Agostino has earned the distinction of being one of the most well respected and revered trial attorneys in the State of New York. When I suggested her name to President Obama, I was amazed--I knew she had a good reputation and, of course, I had interviewed her--I was amazed at the acclaim throughout the entire Northern District that nomination received. Mae D'Agostino's reputation as a fair-minded, honorable, practical lawyer is incredible. I am so glad she is here before us tonight, and I believe, should we confirm her, she will be an outstanding judge. The capital region and the central New York area, as well as the north country, are sort of exultant. That is the word I use to describe Mae's possible ascension to the bench tonight.

She was born in Albany, NY, and graduated summa cum laude from one of the capital region's great institutions, Siena College, and then from Syracuse University School of Law. I would say to the Orange, we did not get into the Sweet Sixteen, but at least Mae D'Agostino is getting on the bench tonight. Right from the get-go, Mae established herself in private practice as a gifted and hard-working trial lawyer, taking cases ranging from medical malpractice to negligence to labor disputes.

She formed her own firm, D'Agostino, Krackeler, Maguire & Cardona in 1997, and has remained at the pinnacle of our State's legal profession ever since.

Along the way, she was inducted into the prestigious American College of Trial Lawyers, and she has won awards that are too numerous to list in full for her service to her alma maters, the community, and for her position as a role model for other women in the profession.

In 1992, Mae D'Agostino helped to organize an experimental program in which the Albany County court instructed parties in 420 cases to reach a settlement agreement or prepare for trial. The program resulted in 50 negotiators settling over 150 pending cases. This is exactly the kind of dedication and creativity we need from our judges.

I have always said that my three criteria in choosing people to recommend for judgeships are excellence, moderation, and diversity, and Mae fits all three of those to a T.

It is particularly fitting that Mae D'Agostino, a groundbreaking nominee of such impeccable judgment and intelligence, is the first of President Obama's new nominees to receive a confirmation vote this Congress. I hope and expect that as the Judiciary Committee moves through nominees under the leadership of Chairman Leahy and Ranking Member Grassley, we will be able to approve many more of them quickly.

We have the best and fairest judicial system in the world, but it depends on good judges to populate the bench. Especially when one in nine spots is vacant--let me repeat that: one in nine spots is now vacant--nominees with bipartisan support should not languish on the floor of the Senate.

Mae D'Agostino's confirmation is a big step in the right direction, and we all must work to make sure there are many more to follow.

This is a great day for Mae and her family, for the State of New York, and for our great Nation.

Thank you. Before suggesting the absence of a quorum, I ask unanimous consent that the time be equally divided between both sides of the aisle.

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 rise to speak about the current debate over the current Federal budget. On Tuesday, a very telling and very troubling vote was held in the House of Representatives. In order to pass the 3-week continuing resolution needed to avert a government shutdown, which we are considering here in the Senate today, Speaker Boehner was forced to rely on votes from House Democrats.

He had to do so because conservative Republicans abandoned their party leadership in droves. They fumed that the measure lacked special interest add-ons dealing with ideological issues such as abortion, net neutrality, and global warming.

In all, 54 conservative Republicans rejected the measure--even though it was necessary to avert a shutdown, even though their own leadership negotiated the proposal, and even though it included $6 billion in additional cuts to domestic discretionary spending. This is a bad omen.

Last week, the Senate held two test votes: one on H.R. 1 and one on a Democratic alternative. We knew that neither proposal would have the votes to pass and, sure enough, both went down.

The purpose of those votes was to make it clear that both sides' opening bids in this debate were nonstarters and thus pave the way for a serious and good-faith compromise. But, unfortunately, an intense ideological tail continues to wag the dog over in the House of Representatives.

Speaker Boehner had hoped after H.R. 1 failed in the Senate, it would convince his conservatives of the need to compromise. Instead, those conservatives have only dug their heels in further, and that is no way to improve our Nation's fiscal footing.

Speaker Boehner has said in no uncertain terms that he wants to avoid a shutdown, and I believe him. He is a good, honest man. The problem is, a large percentage of those in his party think ``compromise'' is a four-letter word.

I do not envy the position the Speaker is in, but he is going to have to make a choice. This is not a yellow wood in Robert Frost's poem, but there are two divergent roads, and, sorry, Speaker Boehner cannot travel both. He can cater to the tea party element and, as Congressman Mike Pence has suggested, ``pick a fight'' that will inevitably cause a shutdown on April 8--that is one path--or he can abandon the tea party in these negotiations and forge a consensus among more moderate Republicans and a group of Democrats. I think we all know which road he should choose.

Speaker Boehner would not have been able to pass this short-term measure without Democratic votes, and he will not be able to pass a long-term one without Democratic votes either.

Throughout this debate, Democrats have repeatedly shown a willingness to negotiate, a willingness to meet Republicans somewhere in the middle, and yet the rank and file of the House GOP has been utterly unrelenting. They have wrapped their arms around the discredited, reckless approach advanced by H.R. 1, and they will not let

go. In fact, they just keep squeezing harder.

Worse, the last few days have taught us that spending cuts alone will not bring a compromise.

The new demand from the far right is that we go along with all their extraneous riders. These riders don't belong on a budget bill, but they were shoehorned into H.R. 1 anyway. Now the hard-liners want them in the final deal.

This is why a compromise has been so hard to come by in the budget. It is because Republicans want more than spending cuts; they want to impose their entire social agenda on the back of a must-pass budget.

Those on the right are entitled to their policy positions, but there is a time and a place to debate these issues, and this ain't it. If this debate were only about spending cuts we probably would come to an agreement before long, but we will have a hard time coming to an agreement if those on the hard right treat the budget as an opportunity to enact a far-ranging agenda.

Many Republicans in the House recognize the unreasonableness of the hard-liners, to their credit. Steve LaTourette of Ohio said passing the 3-week stopgap was ``exactly what people expect us to do--find cuts and continue to talk.''

Michael Grimm, a very bright freshman from my home State of New York, said the tea party lawmakers were making ``a big mistake.''

This is proof positive there are reasonable Republicans in the House, including some reasonable freshmen such as Mr. Grimm who, along with a group of Democrats, can provide Speaker Boehner with the way around the tea party. In order to avoid a dead end on these budget talks, Speaker Boehner should abandon the tea party and work to forge a bipartisan consensus. It is the only way out of this bind.

Thank you, Mr. President. I yield the floor.

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

Mr. President, I ask unanimous consent that at 2 o'clock I be given 5 minutes to speak, and the Senator from Texas, Mrs. Hutchison, speak immediately after me.

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 rise today to speak about the current debate over the Federal budget. Yesterday, we had a very telling and troubling vote in the House of Representatives. On the 3-week continuing resolution needed to avoid a government shutdown on March 18, Speaker Boehner was forced to rely on votes from House Democrats in order to pass a measure he himself had negotiated. The reason was that conservative Republicans abandoned their party leadership in droves out of anger that the measure lacks special interest add-ons dealing with ideological issues, such as abortion, global warming, and net neutrality.

In all, 54 conservative Republicans rejected the measure, even though it was necessary to avert a shutdown and even though it included $6 billion in cuts to domestic discretionary spending.

This is a bad omen. This was not supposed to happen. Last week, the Senate held two test votes--one on H.R. 1 and one on a Democratic alternative. We knew that neither one would have the votes to pass, but we held the votes anyway. And, sure enough, they both went down. The purpose of those votes was to make it clear that both sides' opening bids in this debate were nonstarters and thus pave the way for a serious, good-faith compromise. But, unfortunately, an intense ideological tail continues to wag the dog over in the House of Representatives. Speaker Boehner had hoped after H.R. 1 failed in the Senate that it would convince his conservatives of the need to compromise. Instead, those conservatives have only dug in further. Not only will they not budge off $61 billion in extreme cuts on the long- term measure and special-interest add-ons, but they also won't support any more stopgaps to avert a shutdown. So Speaker Boehner is now caught between a shutdown and a hard place.

The Speaker has said all along he wants to avoid a shutdown at all costs, and I believe him. He is a good man. The problem is, a large percentage of those in his party don't feel the same way. They think ``compromise'' is a dirty word. They think taking any steps to avert a shutdown would mean being the first to blink. And don't take my word for it. Here is what some in the other Chamber are saying: Conservative House Member Mike Pence said passing a 3-week bill to keep the government running would ``only delay a

confrontation that must come. I say, let it come now. It's time to take a stand.'' That is what Congressman Pence said. Michelle Bachmann said, ``If a Member votes for the continuing resolution, that vote effectively says, `I am choosing not to fight.' ''

Outside forces on the far right are also cheerleading a shutdown. Tea Party Nation, for example, has called on Republicans to oppose any more budget measures unless they repeal health care and do away with family planning.

The tea party element in the House is digging in its heels. That is putting the Speaker in a real bind. His need to avoid a shutdown is in conflict with his political desire to keep his tea party base happy.

I don't envy the position the Speaker is in, but he is going to have to make a choice one way or the other. There are two choices but only one of them is responsible. The Republican leadership can cater to the tea party element and, as Mike Pence has suggested, ``pick a fight'' that will inevitably cause a shutdown on April 8 or the leadership can abandon the tea party in these negotiations and forge a consensus among more moderate Republicans and a group of Democrats. I think we all know what the right answer is. Speaker Boehner wouldn't have been able to pass this short-term measure without Democratic votes, and he won't be able to pass a long-term one without Democratic votes either. It is clear that there is no path to compromise that goes through the tea party. We urge Speaker Boehner to push ahead without them. We are ready to work with him if he is willing to buck the extreme elements in his party.

Throughout this debate, Democrats have repeatedly shown a willingness to negotiate, a willingness to meet Republicans somewhere in the middle. Yet the rank-and-file of the House GOP has been utterly unrelenting. They have wrapped their arms around the discredited, reckless approach advanced by H.R. 1, and they won't let go. Worse, the last few days have taught us that spending cuts alone will not bring a compromise.

The new demand from the far right is that we go along with all their extraneous riders. They do not belong on a budget bill, but they were shoehorned onto H.R. 1 anyhow. Now these hardliners in the House want them in any deal. These measures are like a heavy anchor bogging down the budget.

In recent days, a number of rightwing interest groups, such as the Family Research Council, began encouraging Republicans to vote against any budget measure that doesn't contain some of these controversial policy measures. That is why a compromise has been so hard to come by on the budget. It is because hard-right Republicans want more than spending cuts; they want to impose their entire social agenda on the back of a must-pass budget. Those on the right are entitled to their policy positions, but there is a time and a place to debate these issues and, Mr. President, this ain't it.

If this debate were only about spending cuts, we could possibly come to an agreement before too long, but we will have a hard time coming to an agreement with those on the far right threatening the budget as an opportunity to enact a far-ranging social agenda.

The tea party lawmakers are putting a drag on the progress of these budget talks. Many Republicans in the House recognize the unreasonableness of the hardliners. Kevin McCarthy was reported to have gotten into a ``tense exchange'' with Mr. Pence, one of the lead defectors. Republican Mike Simpson acknowledged it was ``unexpected'' to have so many defections yesterday. Steve LaTourette of Ohio said passing the 3-week stopgap was ``exactly what people expect us to do-- find cuts and continue to talk.'' And Michael Grimm, from my home State of New York, said the tea party lawmakers were ``a big mistake.'' This shows there are enough commonsense conservatives in the House to go along with reasonable Democrats that Speaker Boehner can find a way around the tea party. In order to avoid a dead end on these budget talks, he should abandon the tea party and work to find a bipartisan consensus. It is the only way out of this bind.

Mr. President, I yield the floor.

Mr. President, I thank my colleague for his courtesy. I am not speaking about this issue. I saw he looked over in this direction. I will be brief.

I rise to speak about the current debate over the Federal debt. Last week, H.R. 1, the House Republican scorched-earth spending proposal that counts among its casualties such priorities as border security, cancer research, disaster preparedness, and much needed investments in domestic energy production, was summarily defeated in the

Senate. That same day, a Democratic alternative that would have cut spending by $10 billion, compared to current levels, and $51 billion, compared to the President's budget request, was also defeated. We were hopeful these failed votes would be an opportunity to start afresh. We thought it would allow us to hit the reset button on the negotiations.

The purpose of those votes was to make it clear that both sides' opening bids in this debate were nonstarters and thus pave the way for a serious, good-faith compromise.

Unfortunately, an intense ideological tail continues to wag the dog in the House of Representatives. One week after those test votes failed in the Senate, House conservatives are still showing no yield. We have moved $10 billion in their direction. They have not budged an inch off H.R. 1, even though H.R. 1 did not get a single Democratic vote in the Senate. In fact, the Republican conservatives in the House are digging in. In the last 48 hours, there has been a wave of hard-liners who are now rejecting even the 3-week stopgap measure negotiated last week. This measure is needed to avert a government shutdown this Friday. But in a vote occurring very shortly in the House, there is expected to be a number of rightwing defections on this short-term continuing resolution.

Look, Democrats agree this short-term solution is not ideal. Running the government 2 weeks at a time is not good for anyone. We prefer not to have to do another stopgap measure, but we recognize the need, the necessity of averting a government shutdown.

Throughout this debate, Democrats have shown a willingness to negotiate, a willingness to meet Republicans in the middle. Yet the rank and file of the House GOP has been utterly unrelenting. They have wrapped their arms around the discredited reckless approach advanced by H.R. 1, and they will not let go.

But why are House conservatives bucking their leadership by resisting even the stopgap measure? It certainly cannot be because it does not cut spending because it does by another $6 billion over just 3 weeks. The real reason many of the House conservative Republicans, particularly the freshmen, oppose the stopgap CR is clear. It is because it does not contain the extraneous riders they demand.

H.R. 1 was chock-full of ideological policy measures. These items deal with controversial issues such as abortion, global warming, and net neutrality. They do not belong on a budget bill, but they were shoehorned onto it anyway. These measures are akin to a heavy anchor bogging down the budget negotiations.

In recent days, a number of rightwing interest groups--the Heritage Foundation and the Family Research Council--began encouraging Republicans to vote against any budget measure that does not contain these controversial policy measures. This is what is driving the defections on the Republican side.

For example, Mike Pence explained he is voting no because the 3-week measure doesn't weigh in on abortion. He is the author of the controversial hard-right amendment to defund Planned Parenthood. Yesterday, he said he wouldn't mind a government shutdown if it meant he could succeed in passing his rider. Michele Bachmann said she is voting no because the short-term CR doesn't repeal the health care law. Tim Huelskamp, a freshman from Kansas on the Budget Committee, said he would oppose the stopgap measure because it lacked riders against EPA and against family planning.

We finally know why a compromise has been so hard to come by on the budget. It is because Republicans want more than spending cuts; they want to impose their entire social agenda on the back of a must-pass budget. They are entitled to their policy positions, but there is a time and place to debate these issues--and this ain't it.

We have seen this type of overreach before. In the recent battle in Wisconsin, where Governor Scott Walker went to war with the State's public workers. Governor Walker started out seeking concessions from the unions on their benefits in order to reduce Wisconsin 's budget shortfall. In the spirit of cooperation, unions agreed to reduce their benefits. But the Governor didn't take yes for an answer. He went further and insisted on ending collective bargaining entirely.

The budget fight going on right now in this Chamber is also about more than just budget cuts. The conservative Republicans in the House are showing themselves to be Scott Walker Republicans. They are using the budget to try to shoot the Moon on a wish list of far-right policy measures.

If this debate were only about spending cuts, we would probably come to an agreement before too long. But we will have a hard time coming to an agreement with these Scott Walker Republicans who are trying to use the budget to enact a far-right social agenda.

I urge Speaker Boehner to consider a path to a solution to this year's budget that may not go through the tea party. He should consider moving on without them and forge a consensus among more moderate Republicans and a group of Democrats because if these extraneous policy items are going to be a must-have on the budget, a compromise will be very, very, very hard to come by.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent to speak for up to 2 minutes and for Senator Leahy to be recognized following my remarks for 10 minutes.

Mr. President, I wouldn't mind the chart from my friend from Nevada staying up because it makes my point.

In a few hours, the Senate will hold an up-or-down vote on H.R. 1, the House Republicans' scorched earth spending proposal that counts among its casualties such critical priorities as border security, cancer research, and food safety inspectors. The House GOP proposal is a Trojan horse, and we will not be fooled by it. It speaks in the name of deficit reduction, but the dirty little secret about the Republican spending plan is that once the dust is settled, it would only decrease the deficit by $5 billion in fiscal year 2011. When we look at the CBO score of the continuing resolution we are operating under and compare that to the House spending bill, the difference by CBO in budget outlays only amounts to $5 billion in fiscal year 2011. We are talking about a difference of $1.36 trillion in budget outlays under the current CR versus $1.355 trillion in budget outlays under the Republican proposal, much as the chart of my colleague from Nevada has shown. In other words, all of the cuts the Republicans are currently proposing will shave a grand total of .3 percent from the deficit.

Some might say it is a start, but in relation to the damage these cuts will do, it is a meaningless start. Their cuts to domestic discretionary spending will do nothing to create jobs or spur short- term economic growth. In fact, the reverse is true. As numerous independent economists point out, we will see a reduction in economic growth almost immediately if H.R. 1 is enacted, and these cuts will harm our ability to prepare for the future because they gut the very priorities we need to invest in to help our economy grow: education, energy investment, technology, and infrastructure.

Mr. President, I ask unanimous consent I be given 2 additional minutes.

So if all these cuts will not improve the economy in the near term and will not help economic

growth in the longer term and will not cut the deficit, then exactly what will they do? They will satisfy a very small but vocal segment of the Republican Party. That is all.

So it is time for a reset. This morning I called for a reset of this budget debate. I think it is important that after today's votes both sides in the debate take a deep collective breath. We should all take stock of how the discussion up to now has become distorted and seek to reset the terms of the debate. It may not happen tomorrow, but in the coming weeks, as the negotiations led by the White House reconvene, we should approach the talks with fresh eyes and a new mindset.

Rather than continuing the fixation on domestic discretionary cuts, which at the same time do huge damage and cut the deficit very little just because of the way they are spent, the next offer and counteroffer should include mandatory cuts and revenue raisers such as oil royalties into the mix.

We will only put a dent in the deficit through shared sacrifice. Focusing simply on domestic discretionary and even leaving out the military will not achieve our goal of deficit reduction. Including mandatory cuts and revenue raisers such as oil royalties will.

The bottom line is this: The blame for the current breakdown in budget negotiations rests with our failure to think big. A bipartisan compromise simply will not be found in discretionary spending cuts alone. We must broaden the playing field. The solution will only come from putting other kinds of cuts, as well as revenue enhancements, on the table. Doing this will also set the table for the larger budget discussions still to come.

I see my colleague from Vermont, so I am ready to yield the floor to him.

Well, I yield the floor in any case, Mr. President.

Mr. President, I want to take the opportunity to explain further a few elements of the Schumer-Kyl provision in the patent bill. The Transitional Program for business method patents addresses a critical problem in the patent world, and it is crucial that it be administered and implemented appropriately by both the Patent and Trademark Office and the courts.

Business method patents are the bane of the patent world. The business method problem began in 1998 with the U.S. Court of Appeals for the Federal Circuit decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc. State Street created a sea-change in the patentability of business-methods, holding that any invention can be patented so long as it produces a ``useful, concrete, and tangible result'' and meets other requirements of the patent laws.

State Street launched an avalanche of patent applications seeking protection for common business practices. The quality of these business method patents has been much lower than that of other patents, as Justice Kennedy noted in his concurring opinion in eBay Inc. v. MercExchange. Justice Kennedy wrote about the ``potential vagueness and suspect validity'' of some of ``the burgeoning number of patents over business methods.'' Commentators like Rochelle Dreyfuss have also lamented ``the frequency with which the Patent Office issues patents on shockingly mundane business inventions.'' Malla Pollack pointed out that ``[M]any of the recently-issued business method patents are facially (even farcically) obvious to persons outside the USPTO.''

One of the main reasons for the poor quality of business method patents is the lack of readily accessible prior art references. Because business methods were not patentable prior to 1998 when the State Street decision was issued, the library of prior art on business method patents is necessarily limited--as opposed, say, to more traditional types of patents for which there can be centuries of patents and literature about them for the PTO to examine. Furthermore, information about methods of conducting business, unlike information about other patents, is often not documented in patents or published in journals. This means a patent examiner has significantly less opportunity than he might with a traditional patent to weed out undeserving applications. Unfortunately, that means the burden falls on private individuals and an expensive court process to clean up the mess.

The ability to easily obtain business method patents without a rigorous and thorough review in the Patent Office has created a flood of poor quality business method patents and a cottage industry of business method patent litigation. The Federal courts have recognized this problem, and indeed even the Supreme Court has begun to address it. In KSR Intl Co. v. Teleflex, Inc. and Bilski v. Kappos, the Court articulated a new standard for obviousness and made clear that abstract business methods are not patentable. While these legal developments are important, the leave in limbo the many patents that were issued by the PTO since State Street that are not in fact valid.

Litigation over invalid patents places a substantial burden on U.S. courts and the U.S. economy. Business-method inventions generally are not and have not been patentable in countries other than the United States. In order to reduce the burden placed on courts and the economy by this back-and-forth shift in judicial precedent, the Schumer-Kyl transitional proceeding authorizes a temporary administrative alternative for reviewing business method patents.

It is important to clarify two elements of the Schumer-Kyl program's operation in particular. First, there is the issue of how a district court should treat a motion for a stay of litigation in the event the PTO initiates a pilot program. Second, there is the issue of how the Federal circuit will treat interlocutory appeals from stay decisions. Finally, there is the issue of which patents should be considered to be covered business method patents.

The transition program created by the Schumer-Kyl amendment is designed to provide a cheaper, faster alternative to district court litigation over the validity of business-method patents. This program should be used instead of, rather than in addition to, civil litigation. To that end, the amendment expressly authorizes a stay of litigation in relation to such proceedings and places a very heavy thumb on the scale in favor of a stay being granted. It is congressional intent that a stay should only be denied in extremely rare instances.

When Congress initially created ex parte reexamination, it did not expressly provide for a stay of litigation pending the outcome of an ex parte reexamination proceeding. Rather, Congress relied on the courts' inherent power to grant stays and encouraged courts to liberally grant stays. However, relying on the courts' inherent

power to grant stays did not result in courts liberally granting stays. For example, one commentator who surveyed the grant rates on motions for stay pending reexamination, Matthew A. Smith, found that numerous district courts granted stays less than half the time. In fact, Eastern District of Texas grants stays only 20 percent of the time. Due to low grant rates for stays in several jurisdictions, this amendment instructs courts to apply the four-factor test first announced in Broadcast Innovation, L.L.C. v. Charter Communications when evaluating stay motions.

The amendment employs the Broadcast Innovation test, rather than other multifactor tests employed by other district courts, because this test properly emphasizes a fourth factor that is often ignored by the courts: ``whether a stay will reduce the burden of litigation on the parties and on the court.'' Too many district courts have been content to allow litigation to grind on while a reexamination is being conducted, forcing the parties to fight in two fora at the same time. This is unacceptable, and would be contrary to the fundamental purpose of the Schumer-Kyl amendment to provide a cost-efficient alternative to litigation.

Absent some exceptional circumstance, the institution of a business- methods proceeding--which requires a high up-front showing and will be completed in a relatively short period of time--should serve as a substitute for litigation, and result in a stay of co-pending district court litigation.

By adopting this four-factor test, rather than one of the three- factor tests used by other courts, the amendment also precludes the use of additional factors that are not codified here and that have occasionally been used by some district courts. For example, a few courts have occasionally employed a different de facto fourth factor: whether the challenger offers ``to forgo invalidity arguments based on prior art patents and/or printed publications considered during an ex parte reexamination process.'' The proceeding authorized by this amendment, at subsection (b)(1)(D), sets its own standard for determining what issues may still be raised in civil litigation if a patent survives PTO review. By codifying the exclusive set of factors that courts are to consider when granting stays, the amendment precludes courts from inventing new factors such as extra-statutory estoppel tests.

Several unique features of this proceeding further make it appropriate to grant stays in all but the most unusual and rare circumstances. These proceedings will only be instituted upon a high up-front showing of likely invalidity. The proceeding is limited to certain business method patents, which, as noted above, are generally of dubious quality because unlike other types of patents, they have not been thoroughly reviewed at the PTO due to a lack of the best prior art. And the proceeding will typically be completed within 1 year.

In summary, it is expected that, if a proceeding against a business method patent is instituted, the district court would institute a stay of litigation unless there were an extraordinary and extremely rare set of circumstances not contemplated in any of the existing case law related to stays pending reexamination. In the rare instance that a stay is not granted, the PTO should make every effort to complete its review expeditiously. We encourage the PTO Director to promulgate regulations to this effect to ensure that petitioners know that in extreme circumstance where a gay is not granted, the PTO will complete its review in a compressed timeframe, such as within 6 months.

To ensure consistent and rigorous application of the Broadcast Innovation standard, the amendment also allows the parties, as of right, to have the Federal Circuit closely review the application of this test in a manner that ensures adherence to these precedents and consistent results across cases. As such, either party may file an interlocutory appeal directly with the Federal Circuit. Because this amendment provides an automatic right to an interlocutory appeal, the district court does not need to certify the appeal in writing, as it would ordinarily need to do under 28 U.S.C. Sec. 1292(b). Also, unlike the discretion typically afforded an appellate court under 28 U.S.C. Sec. 1292(b), under this amendment the Federal Circuit may not decline to hear an interlocutory appeal.

Since the denial of a stay pending post-grant review under this amendment is an extraordinary and extremely rare circumstance, the filing of an interlocutory appeal should result in the stay of proceedings in the district court pending the appeal. Staying the lower court proceedings while the Federal Circuit reviews the question of whether the case should be stayed pending the post-grant review will help ensure that requests to stay are consistently applied across cases and across the various district courts.

On appeal the Federal Circuit can and should review the district court's decision de novo. It is expected that the Federal Circuit will review the district court's decision regarding a stay de novo, unless there are unique circumstances militating against a de novo review, such as subsequent requests for an interlocutory appeal in the same case. A de novo review is central to the purpose of the interlocutory appeal provision in the Schumer-Kyl amendment, which is to ensure consistent application of standards and precedents across the country and to avoid one particular court with a favorable bench becoming the preferred venue of business method patent plaintiffs.

The definition of covered business method patents in the transitional program was developed in close consultation with the PTO to capture all of the worst offenders in the field of business method patents, including those that are creatively drafted to appear to be true innovations when in fact they are not.

The amendment only applies to ``covered business method patents.'' If the PTO determines that a patent is a ``covered business method patent''--and the other applicable requirements of this amendment and Chapter 32 are met--the patent will be subject to post-grant review under this amendment regardless of whether the patent has been through prior PTO proceedings, such as ex parte reexamination, or current or prior litigation.

The definition of a ``covered business method patent'' includes ``a method or corresponding apparatus.'' The phrase ``method or corresponding apparatus'' is intended to encompass, but not be limited to, any type of claim contained in a patent, including, method claims, system claims, apparatus claims, graphical user interface claims, data structure claims--Lowry claims--and set of instructions on storage media claims--Beauregard claims. A patent qualifies as a covered business method patent regardless of the type or structure of claims contained in the patent. Clever drafting of patent applications should not allow a patent holder to avoid PTO review under this amendment. Any other result would elevate form over substance.

Not all business method patents are eligible for PTO review under this amendment. Specifically, ``patents for technological inventions'' are out of scope. The ``patents for technological inventions'' exception only excludes those patents whose novelty turns on a technological innovation over the prior art and are concerned with a technical problem which is solved with a technical solution and which requires the claims to state the technical features which the inventor desires to protect. It is not meant to exclude patents that use known technology to accomplish a business process or method of conducting business--whether or not that process or method appears to be novel. The technological invention exception is also not intended to exclude a patent simply because it recites technology. For example, the recitation of computer hardware, communication or computer networks, software, memory, computer-readable storage medium, scanners, display devices or databases, specialized machines, such as an ATM or point of sale device, or other known technologies, does not make a patent a technological invention. In other words, a patent is not a technological invention because it combines known technology in a new way to perform data processing operations.

The amendment covers not only financial products and services, but also the ``practice, administration and management'' of a financial product or service. This language is intended to

make clear that the scope of patents eligible for review under this program is not limited to patents covering a specific financial product or service. In addition to patents covering a financial product or service, the ``practice, administration and management'' language is intended to cover any ancillary activities related to a financial product or service, including, without limitation, marketing, customer interfaces, Web site management and functionality, transmission or management of data, servicing, underwriting, customer communications, and back office operations--e.g., payment processing, stock clearing.

The amendment also requires a patent to relate to a ``financial product or service.'' To meet this requirement, the patent need not recite a specific financial product or service. Rather the patent claims must only be broad enough to cover a financial product or service. For example, if a patent claims a general online marketing method but does not specifically mention the marketing of a financial product, such as a savings account, if that marketing method could be applied to marketing a financial product or service, the patent would be deemed to cover a ``financial product or service.'' Likewise, if a patent holder alleges that a financial product or service infringes its patent, that patent shall be deemed to cover a ``financial product or service'' for purposes of this amendment regardless of whether the asserted claims specifically reference the type of product of service accused of infringing.

In conclusion, I am very pleased that the Senate has adopted the Schumer-Kyl provision and trust that it will go a long way towards addressing the havoc that frivolous business method patent litigation has wreaked upon the courts and the economy. Indeed, Senator Kyl and I received a letter of thanks and appreciation from the Independent Community Bankers of America, who represent nearly 5,000 community banks. As they point out, the money they are required to spend defending litigation from business method patent trolls--and the capital they must reserve against these contingent liabilities--is money which ``cannot find its way into the hands of worthy borrowers, retarding economic growth and job creation at the time such activity is most needed.''

To that end, I would ask unanimous consent that the letter from the Independent Community Bankers of America be printed in the Record.

It's my understanding that the fiscal year 2010 appropriation included $70.7 million for the World Trade Center Health Program, but that the 2011 continuing resolution proposed by Senator Inouye does not specify an amount for the implementation of the new law.

Mr. President, I rise today as the chairman of the Joint Committee on Printing to recognize the Government Printing Office, GPO, on the occasion of its 150th anniversary. GPO opened its doors on March 4, 1861, the same day that President Abraham Lincoln took the oath of office for his first term. Since that time, the agency has used constantly changing technologies to meet the needs of the Congress, Federal agencies, and the public. During GPO's early days, employees relied on ink and paper to publish the text of President Lincoln's Emancipation Proclamation. Today, as another President from Illinois leads the Nation, GPO employees are using the latest digital technology to document the activities and decisions of our Government and to fulfill GPO's founding mission, which is ``Keeping America Informed.''

While GPO's past has been about printing, its present and future are being defined by electronic publishing. GPO has been investing for more than a generation in digital production and dissemination technology, an investment that has yielded significant improvements in productivity, capability, and savings for the taxpayers. The GPO estimates that converting to electronic, digital technology has resulted in a savings of 66 percent on the cost of congressional printing alone. Deploying such technology has also reduced the number of employees to fewer than at any time in the past century. And it has reduced dramatically the number of copies of official documents that are printed.

GPO's partnership with the printing industry supports tens of thousands of

jobs. At the same time, by using GPO as a central procurement agency, the Federal Government reduces substantially the cost of these contracts to the taxpayers.

GPO now has a range of products and services that could only have been dreamed of 30 years ago: Online databases of Federal documents with state-of-the-art search and retrieval capabilities available to the public without charge, Government publications available as e- Books, and a public presence not only on the Web but also on Twitter, Facebook, and You Tube. No longer is GPO primarily a publisher of printed government documents, but a fully integrated electronic publisher and clearinghouse whose products are available in many Internet-based locations. In addition, the State Department relies on GPO to provide highly secure U.S. passports containing sophisticated smart chips. GPO does this in conjunction with the private sector, which supplies certain critical components.

Another key function of GPO is its partnership with more than 1,200 Federal depository libraries across the country. These libraries, established by statute in all 50 States, make Federal documents available to millions of students, researchers, businesses, and others every year in both digital and print formats.

In short, GPO is responsible for the production and distribution of information products and services for all three branches of the Federal Government, including U.S. passports for the Department of State as well as the official publications of Congress, the White House, and other Federal agencies. In addition to publication sales, GPO offers permanent public access to Federal Government information at no charge through GPO's Federal Digital System--www.fdsys.gov_and through partnerships with approximately 1,200 libraries nationwide that are part of the Federal Depository Library Program.

I ask my colleagues to join me in congratulating the GPO on its 150th anniversary and on its contributions to keeping the public informed.

Mr. President, earlier this week the joint leadership group of the Senate made the following recommendation to Senate legal counsel regarding representation of two Senate employees in an upcoming judicial proceeding:

Recommendation of Action To Avoid Conflict or Inconsistency in the

Representation of Senate Parties

Having been notified of an apparent conflict of interest by

the Senate Legal Counsel pursuant to Sec. 710(a) of the

Ethics in Government Act of 1978, 2 U.S.C. Sec. 288i(a), and

as contemplated by Sec. 710(b) and (d) of that Act, 2 U.S.C.

Sec. 288i(b) and (d), it is recommended that the Senate Legal

Counsel take the following action in order to avoid a

potential conflict that could arise between the Legal

Counsel's responsibilities to the Select Committee on Ethics

and representation of Jean Manning and Erica Watkins, Senate

employees who are being subpoenaed to testify and produce

documents before a federal grand jury. In the event that Ms.

Manning or Ms. Watkins requests legal representation in

connection with her appearance before the grand jury, the

Senate Legal Counsel shall refer Ms. Manning and Ms. Watkins

to the Committee on Rules and Administration for assistance

in arranging for the employment of private counsel to

represent them with respect to official actions and

responsibilities.

The Joint Leadership Group

Ms. Manning and Ms. Watkins have now contacted the Committee on Rules and Administration for assistance in arranging for the employment of private counsel to represent them with respect to testimony and document production before the Federal grand jury in the District of Columbia.

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

Mr. President, I rise to speak in support of the America Invents Act generally and about the managers' amendment specifically. The America Invents Act, also known as the patent reform bill, has been pending for many years and has been the subject of extensive debate, negotiation, and revisions. In its current draft, it does much needed good to help protect the American innovation economy by updating and modernizing our patent system.

The patent system in the United States is designed to protect innovation and inventions and investment. But over the last several decades, the Patent and Trademark Office has become bogged down and overburdened by inefficient process and outdated law. The result is a heavy burden on the innovative work that is the engine of our economy.

I wish to commend Senator Leahy. He has gone the extra mile for this bill for many years. I am proud and glad he is seeing his work come to fruition as we finally debate the bill on the floor. Passage of the bill is in sight. I also wish to commend the ranking member of the Judiciary Committee, Senator Grassley, who worked with him, as well as Senator Kyl, who has taken a leading role on the Republican side, for their hard work in crafting a bill that effectively modernizes the patent system, while paying attention to the many and varied demands different sectors of the economy exert upon it.

I am particularly pleased the chairman has decided to adopt the Schumer-Kyl amendment on business method patents into the managers' amendment. It is a critical change that this bill finally begins to address the scourge of business method patents currently plaguing the financial sector. Business method patents are anathema to the protection the patent system provides because they apply not to novel products or services but to abstract and common concepts of how to do business.

Often, business method patents are issued for practices that have been in widespread use in the financial industry for years, such as check imaging or one-click checkout. Because of the nature of the financial services industry, those practices aren't identifiable by the PTO as prior art and bad patents are issued. The holders of business method patents then attempt to extract settlements from the banks by suing them in plaintiff-friendly courts and tying them up in years of extremely costly litigation.

This is not a small problem. Around 11,000 new applications for patents on business methods are filed every year, and financial patents are being litigated almost 30 times more than patents as a whole. This is not right, it is not fair, and it is taking desperately needed money and energy out of the economy and putting it into the hands of a few litigants. So I am very pleased Congress is going to fight it.

The Schumer-Kyl amendment, which was included in the managers' package we just adopted, will allow companies that are the target of one of these frivolous business method patent lawsuits to go back to the PTO and demonstrate, with the appropriate prior art, that the patent shouldn't have been issued in the first place. That way bad patents can be knocked out in an efficient administrative proceeding, avoiding costly litigation.

One of the most critical elements of this amendment has to do with the stay of litigation while review of the patent is pending at the PTO. The amendment includes a four-factor test for the granting of a stay that places a very heavy thumb on the scale in favor of the stay. Indeed, the test requires the court to ask whether a stay would reduce the burden of the litigation on the parties and the court. Since the entire purpose of the transitional program at the PTO is to reduce the burden of litigation, it is nearly impossible to imagine a scenario in which a district court would not issue a stay.

In response to concerns that earlier versions of the amendment were too broad, we have modified it so it is narrowly targeted. We want to make sure to capture the business method patents which are at the heart of the problem and avoid any collateral circumstances.

In conclusion, I believe the amendment takes an important step in the direction of eliminating the kinds of frivolous lawsuits the jurisprudence on business method patents have allowed. I am very grateful to the chairman and the ranking member, Senator Kyl, and I support the managers' amendment and the America Invents Act as a whole.

Finally, I would like to say a few words about Senator Coburn's proposal on fee diversion. I think his idea, which is incorporated in the managers' amendment, makes a lot of sense; that is, to let the PTO keep the fees they charge so they are self-funded and we don't have to spend taxpayer money to fund them every year.

Last year, when we were debating the Wall Street reform bill, Senator Jack Reed and I made a similar proposal for the SEC, which ultimately didn't make it into the final bill. I just wanted to

take this time to make a few points about this commonsense proposal.

First, for the last 15 years, the SEC hasn't spent a dime of taxpayer money. For 15 years, the SEC has had no impact on the deficit. This is because Congress, in 1996, amended the securities laws to provide that 100 percent of the SEC's funding comes from registration and filing fees charged by the Commission.

Second, even though the SEC collects more in fees every year than it spends, the amount of the SEC's annual budget is determined by Congress, which has continually shortchanged the SEC. The SEC's budget has been in the crosshairs for years, and their funding has been so inadequate that they have been compromised in their ability to pursue their core mission.

Third, the budget proposal in the House would continue the shortchanging of the SEC, cutting $40 million from its existing budget at a time when it needs resources more than ever.

Finally, a word about the current demands on the SEC. We gave that agency significant new responsibilities under the Dodd-Frank Act, in particular to oversee the previously unregulated derivative markets. That is an enormous undertaking that everybody agrees is necessary after seeing the role that unregulated derivatives played in the financial crisis.

In closing, I would strongly suggest to my colleagues that if self- funding makes sense for the PTO, it makes sense for the SEC. I am not going to call up my amendment now or my bill now, but I urge my colleagues to support this commonsense proposal Senator Reed and I are pushing and ensure it gets a full hearing in the Senate.

I thank the Chair for his time and attention.

Mr. President, I ask unanimous consent that at 11 a.m. on Wednesday, March 2, the Senate proceed to the immediate consideration of H.J. Res. 44, the 2-week continuing resolution which was received from the House and is at the desk; that the Senate then proceed to a vote on the passage of H.J. Res. 44, with no intervening action or debate; further, that the cloture motion on the motion to proceed to Calendar No. 11, H.R. 359, be vitiated.

Mr. President, I ask unanimous consent the Senate proceed to the immediate consideration of S. Res. 83 which was submitted earlier today.

Mr. President, I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.

Mr. President, I ask unanimous consent the Senate proceed to the immediate consideration of S. Res. 84, a resolution introduced earlier today by Senator Casey.

Mr. President, I ask the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.