Floor Statements

Mr. President, I wish to announce that the Committee on Rules and Administration will meet on Wednesday, September 29, 2010, at 10 a.m., to hear testimony on ``Examining the Filibuster: Ideas to Reduce Delay and Encourage Debate in the Senate.''

For further information regarding this meeting, please contact Lynden Armstrong at the Rules and Administration Committee on (202) 224-6352.

Mr. President, before the leader speaks, may I pose a question? What is the status of time in terms of the minority and the majority on this issue?

Mr. President, I would ask unanimous consent that the leader be allowed to speak for as long as he chooses and that I be given 5 minutes after that to conclude for the majority, and the vote be delayed until after that.

That would be fine with me, if that works. Does that still----

I thank the Senator.

Mr. President, first I would simply note that the bill before us has nothing to do with public financing of campaigns; it simply has to do with disclosure.

I rise today in support of DISCLOSE, the Democracy Is Strengthened by Casting Light on Spending in Elections Act, and I urge my colleagues to support this bill.

This bill is in direct response to Citizens United v. FEC in which the Supreme Court, led by Chief Justice Roberts and its activist majority, overruled almost a century of law and precedent and held that corporations have the same first amendment rights as people. As I have said before, because of this decision, the winner of every upcoming election won't be Democrats or Republicans; it will be special interests. And it will come at the expense of the voice of the ordinary American. The Court's decision lifted well-established restrictions on corporate and union spending in elections. This created a loophole in which these entities can now create anonymous groups to serve as a conduit to anonymously funnel money. The intent is to deceive the public and hide the real motives of those spending on these ads.

We have worked within the contours of the Court's decision in order to draft the DISCLOSE Act.

I ask those who support sunlight in campaign spending to work with us to pass this bill.

You think we are using this bill as a political tool to influence elections? OK. We will change the effective date to January 2011 so it won't apply to this November's election. We will welcome this change and encourage Republican amendments and debate on this bill because it is essential to the health of our democracy. We are also willing to consider paring the bill down, per the suggestion of my colleague, Senator Snowe, in her statement, and limiting it to the core provisions regarding enhanced disclosures and disclaimers.

Both disclosure and disclaimer were proclaimed to be constitutional and effective ways to regulate corporate and union spending by eight of the nine Justices in Citizens United and were upheld in a later decision, Doe v. Reed. The Court specifically stated that disclosure requirements ``do not prevent anyone from speaking''--do not prevent anyone from speaking--and found that there was strong governmental interest in ``providing the electorate with information about the sources of election-related funding.'' The Court also concluded that ``disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way'' and to ``give proper weight to different speakers and messages.'' To be clear, disclosure does not chill speech. We do not want to chill speech. We merely want the American public to have details about who is speaking. These disclosure and disclaimer provisions allow the American public to know exactly who is bankrolling campaign advertisements. The American public deserves nothing less.

I would note that a strong majority of the American public-- Democrats, Republicans, and Independents--disapproved of the Supreme Court's opinion in Citizens United and support disclosure and disclaimer provisions.

In removing the restrictions on corporate and union campaign spending, the Citizens United decision has opened a door for the creation of shadow groups whose spending is not clearly regulated. Neither the IRS, which has jurisdiction for nonprofits, nor the FEC provides oversight for these groups. That is a scary thought. In fact, one such group, American Crossroads, the leader in campaign spending in the Senate, was created by Karl Rove, who pledged to spend $50 million on just the 2010 election cycle. In fact, since our last vote on this issue, it has been reported that these shadow groups have raised $20 million.

A former Republican FEC Commissioner, Michael Toner, stated on the front page of the New York Times this week that, from his personal experience, ``the money is flowing.'' It is clear to us that the money is flowing; we just aren't permitted to know from whom it is coming. It is clear that this money isn't coming from the average voter. These groups are created, funded with secret donations, and then they disappear just as quickly as they appeared, all with no real disclosure. They are not created to be a voice of the people. It has been reported that the vast majority of American Crossroads funding is from four billionaires. Why are we letting the voice of these four people drown out the rest of America? This is outrageous.

In conclusion, the American people deserve to know what each and every one of us in this Chamber truly believes. Are we for openness, transparency, and giving the voters information they need to make their choices in the voting booth or do we really believe, despite our rhetoric, that it is OK for special interests to spend freely on all kinds of political advertising but keep the voters in the dark about who is paying for it?

The Supreme Court's decision this year has made it imperative for us to act now.

Mr. President, I yield the floor.

Cloture Motion

Mr. President, I wish to announce that the Committee on Rules and Administration will meet on Wednesday, September 22, 2010, at 10 a.m., to hear testimony on ``Examining the Filibuster: Legislative Proposals to Change Senate Procedures.''

For further information regarding this meeting, please contact Lynden Armstrong at the Rules and Administration Committee.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 617, submitted earlier today.

Mr. President, I would like to take this opportunity, and I think I speak on behalf of all of our colleagues, certainly in sentiment if not my exact words, about our friend and former colleague, Ted Stevens. On Tuesday we were all deeply saddened to learn about his tragic passing.

Ted's dedication to his Nation began with his valiant service in World War II and endured through six decades of public service. Ted helped secure statehood for his beloved Alaska and never stopped fighting for the people of the Pioneer State for over 40 years as its senior Senator.

Our thoughts are with Ted's wife Catherine and the entire Stevens family and all of those who lost their lives and were injured in this week's sad accident.

Mr. President, I want to personally add the thoughts of Senator Reid. I spoke with him last night. We spoke about Senator Stevens and remembered him fondly. Senator Reid particularly noted to me one of his prize possessions was a Hulk tie that Senator Stevens had given him, and he proudly still has it with him.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid on the table en bloc, and that any statements relating to the resolution be printed in the Record.

Mr. President, I ask unanimous consent that the Senate observe a moment of silence in memory of our former colleague, the late Senator from Alaska, Ted Stevens.

Mr. President, I understand there are two bills at the desk due for a second reading.

I object to any further proceedings with respect to these bills en bloc.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 6080, received from the House and at the desk.

Mr. President, today, I come to the floor to seek Unanimous Consent to pass a smart, tough, and effective $600 million bill that will significantly enhance the security and integrity of our Nation's southern border--which currently lacks the resources needed to fully combat the drug smugglers, gunrunners, human-traffickers, money launderers and other organized criminals that seek to do harm to innocent Americans along our border.

The Senate first passed this bill last week by unanimous consent. Last week's vote ended an impasse over how to pay for this package that all of us agree needed to be passed as soon as possible.

At first, the House proposed a border security bill that was not fully paid for and, thus, was unacceptable to many in the Senate.

And, here in the Senate, many of my colleagues on the other side of the aisle wanted to pay for this bill by diverting critical funds from the stimulus bill, The Recovery Act. This too was unacceptable because border security does not need to come at the expense of programs that create jobs for millions of Americans. As important as border security is, we should not be taking away jobs from firemen in Buffalo and teachers in Syracuse in order to hire more agents in El Paso. That is the worst kind of robbing Peter to pay Paul that was simply an unacceptable way to pay for increased border security.

Instead of raising the deficit--which we do not do in this bill--or diverting vital stimulus funds, the Senate ultimately agreed to pay for the border package by increasing visa fees on companies who hire foreign workers in a manner contrary to the original intent of the H-1B visa program.

After the Senate reached this compromise and unanimously approved this border package last week, the House approved the same substantive border package by voice vote on Tuesday.

But, regrettably, the House was unable to simply pass the Senate bill. According to House rules--because the Senate's offset did not originate in the House--it had to be approved by the House first, before the Senate's passage. So today, I again seek the unanimous consent of my colleagues to approve this border security bill and to finally provide President Obama and Secretary Napolitano with the boots on the ground and the resources necessary to combat the crime and violence that currently exists on our southern border.

I would like to thank the original cosponsors of this legislation: Senators McCaskill, Reid, Inouye, Murray, Feinstein, Bingaman, Udall of New Mexico, Casey, Merkley, Lincoln, Udall of Colorado, Begich, and Burris.

I would also particularly like to thank Senators McCain and Kyl for joining on as cosponsors prior to the Senate's original approval and for recognizing this bill as being significant border security legislation.

In addition to providing many vital resources for securing our southern border--all of which I will detail in a moment--this bill is also enormously important because it will clear the path for restarting the bipartisan discussions we absolutely need to have on how best to restore the rule of law to our entire immigration system.

Although we all agree that we must secure our borders, we will never fully resolve the problem of illegal immigration until we fix the entirety of what is wrong with our immigration system.

But those of us who currently support comprehensive immigration reform also believe in providing all of the resources our experts on the ground are telling us they need to secure the border right now. That is why this bill has received the support of the entire Senate.

We know that keeping our borders safe from dangerous gang members, drug dealers, and human traffickers is critical to restoring the public's confidence that the entirety of our focus with regard to immigration policy is geared toward restoring the rule of law to what has been a lawless system in the past.

That is why I commend the President and Secretary Napolitano for their tireless work in advocating for the passage of this package to give our people on the ground the tools they need to secure the border.

Here are all of the vital resources our border security package will provide:

First, we provide over $250 million to hire 1,000 new Border Patrol agents and 500 CBP officers to permanently patrol our southern border. These new agents will form a ``strike force'' that will be deployed in different areas of the southwest border depending on where the need is greatest at any particular moment. We will finally have the capability to deploy our manpower in a way where we can continuously and immediately change our tactics to respond to changes in the tactics of smugglers and traffickers.

Second, we will provide funding to deploy more unmanned drones to fly along our southern border to provide our agents on the ground with real-time information on unlawful border crossings.

We are currently deploying seven of these unmanned drones on our border. They have been proven to be very effective because they provide our border patrol agents with vast force multiplication through their ability to identify the exact locations of larger groups that disperse into smaller groups upon encountering border patrol agents on the ground.

These additional drones will help us gain operational control over a much larger segment of our southern border than we otherwise would have controlled because they provide miles of surveillance capability that is technologically impossible to achieve through other means.

Third, we will provide funds to improve communications capabilities between Federal border enforcement agents and state and local officers along the border. The issue here is crime. Officers with different areas of expertise and jurisdiction need to be able to communicate in order to have the best information possible to break up smuggling and trafficking rings that are embedded in local communities. These improved communication capabilities will lead to countless more apprehensions and prosecutions of big-time smugglers and traffickers.

As an example, if our border patrol suddenly begins encountering a surge of illegal border crossers from El Salvador with identical tattoos on their arms, it is important that they provide this information to State and local law enforcement on the ground so that we can immediately begin sharing intelligence to determine whether individuals with this description have recently been arrested. This coordination will help us determine the exact criminal intent of this group and their methods of operation so that they can be effectively combated.

Fourth, we will provide funds to construct forward operating bases for the border patrol to use that are actually located on the border itself rather than hundreds of miles away.

It is extremely inefficient for border patrol to apprehend individuals along the border and then have to drive hours to place that person in detention in a far-away base. These forward operating bases provide locations much closer to the border where detainees can be brought for processing so that patrol agents on the ground can spend much more time combating illegal activity on the border.

Fifth, we will provide funds for Immigration and Customs Enforcement to conduct investigations of drug-runners, money-launderers, and human traffickers along our border. It is almost impossible to find out the sources and uses of smuggling and trafficking funds without strong intelligence and investigation capabilities. This bill will provide ICE with the resources it needs to hunt down the major players in these cartels who are responsible for the majority of the illegality on the southern border.

Finally, we will provide over $200 million to increase the number of ATF, DEA, and FBI agents on our border and to bolster the number of prosecutors and court resources along our border so that wrongdoers can be immediately brought to justice.

We will dramatically reduce the incidences of illegal smuggling of guns, drugs, and currency along our borders so that the American people can feel far safer living in many of our border communities than they do today.

The best part of this border package is that it is fully paid for and does not increase the deficit by a single penny. In actuality, the Congressional Budget Office--the CBO--has determined that the bill will yield a direct savings to taxpayers of $50 million.

The emergency border funds we are passing today are fully paid for by assessing fees on certain types of companies who hire foreign workers using certain types of visas in a way that Congress did not intend.

I want to take a moment to explain exactly what we are doing in the bill a little further because I want everyone to clearly understand how these offsets

have been designed. There has been some discussion about this proposal, and I think we ought to lay it on the table and explain it clearly.

In 1990, the Congress realized the world was changing rapidly and that technological innovations, such as the Internet, were creating a high demand in the United States for high-tech workers to create new technologies and products. Consequently, Congress created the H-1B visa program to allow U.S. employers to hire foreign tech workers in special circumstances when they could not find an American citizen who was qualified.

Many of the companies that use this program today are using the program in exactly the way Congress intended; that is, these companies, such as Microsoft, IBM, and Intel, are hiring bright foreign students educated in our American universities to work in the United States for 6 or 7 years to invent new product lines and technologies so that Microsoft, IBM, and Intel can sell more products to the American public and hire more American workers. Then at the expiration of the H-1B visa period, these companies apply for these talented workers to earn green cards and stay with the company.

When the H-1B visa program is used in this manner, it is a good program for everyone involved. It is good for the company, it is good for the worker, and it is good for the American people who benefit from the products and jobs created by the innovation of the H-1B visa holder.

Every day companies such as Oracle, Cisco, Apple, and others use the H-1B visa program in the exact way I have described, and their use of the program has greatly benefited the country.

But recently some companies have decided to exploit an unintended loophole in the H-1B visa program to use the program in a manner that many in Congress, including myself, do not believe is consistent with the program's intent.

Rather than being a company that makes something or provides a service and simply needs to bring in a talented foreign worker to help innovate and create new technologies, these other companies are essentially creating multinational temp agencies that were never contemplated when the H-1B program was created.

The business model of these newer companies is not to make any new products or technologies such as Microsoft or Apple does. Instead, their business model is to, first, bring foreign tech workers into the United States who are willing to accept less pay than their American counterparts; two, place these workers into other companies in exchange for a consulting fee; and, three, transfer these workers from company to company in order to maximize profits from placement fees.

In other words, these companies are petitioning for foreign workers simply to then turn around and provide these same workers to other companies who need cheap labor for various short-term projects.

Don't take my word for it. If you look at the marketing materials of some of these companies that fall within the scope covered by today's legislation, their materials boast about their ``outsourcing expertise'' and say their advantage is their ability to conduct what they call ``labor arbitrage''--labor arbitrage; they say it--which is, in their own words, ``transferring work functions to a lower cost environment for increased savings.''

The business model used by these companies within the United States is creating three major negative side effects. First, it is ruining the reputation of the H-1B program, which is overwhelmingly used by good actors for beneficial purposes. Some of our colleagues have legislation to curtail H-1B because of these types of abuses.

Second, according to the Economic Policy Institute, it is lowering the wages for American tech workers already in the marketplace. And, third, it is also discouraging many of our smartest students from entering the technology industry in the first place. Students can see that paying hundreds of thousands of dollars for advanced schooling is not worth the cost when the market is being flooded with foreign temporary workers willing to do tech work for far less pay because their foreign education was cheaper and they intend to move back home when their visa expires to a country where the cost of living is far less expensive.

This type of use of the H-1B visa program will be addressed as part of comprehensive reform, and it is likely going to be dramatically restricted--certainly, if I have something to do about it. We will be reforming the legal immigration system to encourage the world's best and brightest to come to the United States to create new technologies and businesses that will employ countless American workers but will discourage businesses from using our immigration laws as a means to obtain temporary and less expensive foreign labor to replace capable American workers.

Let me say, in our proposal, the extra duty only goes on companies that are more than 50 percent foreign workers and 50 percent H-1B workers. The only companies that are 50 percent H-1B workers are those that are just doing the policy that I proposed--far, far from what we envisioned when H-1B was passed.

I say to those companies: If you do not change your ways--you should not be doing what you are doing, and this duty is appropriate for that purpose.

I do want to clarify a previous remark which mischaracterized these firms where I labeled them as ``chop shops.'' That statement was incorrect, and I wish to acknowledge that. In the tech industry, these firms are known as ``body shops.'' That is what I should have said, and that is what they are.

While I wholly oppose the manner in which these firms are using H-1B to accomplish objectives that Congress never intended, it would be unfortunate if anyone concluded from my remarks that these firms are engaging in illegal behavior.

But I also want to make clear that the purpose of this fee is not to target businesses from any particular country. Many news articles have reported that the only companies affected by this fee are companies based in India and that ipso facto the purpose of this legislation is to target Indian IT companies. It is simply untrue that the purpose of this legislation is to target Indian companies. We are simply raising fees for businesses that use the H-1B visa to do things that are contrary to the program's original intent, and that will be on any company from any country that does it.

Visa fees will only increase for companies with more than 50 workers who continue to employ more than 50 percent of their employees through the H-1B program. That was never even close to anyone's thought when H- 1B was passed. Congress does not want the H-1B program to be a vehicle for creating multinational temp agencies where workers do not know what projects they will be working on or what cities they will be working in when they enter the country. The fee is solely based upon the business model of the company, not the location of the company.

If they are using the H-1B visa to innovate new products and technologies, that is a good thing, regardless of whether the company was originally founded in India, Ireland, or Indiana. But if they are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of this program, I and my colleagues believe they should have to pay a higher fee to ensure that American workers are not losing their jobs because of the unintended uses of the visa program that were never contemplated when the program was created. This belief is consistent regardless of whether the company using these staffing practices was founded in Bangalore, Beijing, or Boston.

Raising the fees for companies hiring more than 50 percent of their workforce through foreign visas accomplishes two important goals: First, it will provide the necessary funds to secure our borders without raising taxes or adding to the deficit. Second, it will level the playing field for American workers so they do not lose out on good jobs in America because it is cheaper to bring in a foreign worker than hire an American worker.

Let me tell my colleagues what objective folks around the world are saying about the impact of this fee increase.

In an August 6, 2010, Wall Street Journal article, Avinash Vashistha, the CEO of a Bangalore-based offshoring advisory consulting firm, told the Journal the new fee in the bill ``would accelerate Indian firms'' plans to hire

more American-born workers in the U.S.'' What is wrong with that?

In an August 7, 2010, Economic Times article, Jeya Kumar, a CEO of a top IT company, said this bill would ``erode cost arbitrage and cause a change in the operational model of Indian offshore providers.'' Exactly. That is what we want.

The leaders of this business model are agreeing that our bill will make it more expensive to bring in foreign tech workers to compete with American tech workers for jobs in America. That means these companies are going to have to start to hire U.S. tech workers again.

This bill is not only a responsible border security bill, it has the dual advantage of creating more high-paying American jobs.

Finally, I want to be clear about one other thing. Even though passing this bill will secure our borders, I again say the only way to fully restore the rule of law to our entire immigration system is by passing comprehensive immigration reform.

In my many meetings with folks on the other side of the aisle to try to gain their support for comprehensive reform, I repeatedly heard them say that once we show we are serious about passing border security legislation, they would be able to begin working with us to fix all of the other aspects of our broken immigration system.

Make no mistake about it, our entire immigration system is broken. It is a patient that needs quadruple bypass surgery. A single bypass surgery of border security alone is important but not enough to cure the patient of its ailment. We also need to enact tough and smart immigration reform that will, A, end the jobs magnet to the United States by requiring that all legal workers show a secure Social Security card prior to obtaining a job; B, end visa overstays through robust interior enforcement; and, C, require that all persons here unlawfully make their presence known to us by registering with the Federal Government and then either getting right with the law or leaving the country.

It is my hope that the bill we are passing today will break the deadlock that has existed in Congress and will clear the path for us to finally resume bipartisan negotiations in good faith on reforming our broken immigration system. I intend to do everything I can to make that happen.

But negotiations cannot happen out of thin air. It will take serious Republicans working with serious Democrats to get this done. I urge my colleagues on both sides of the aisle to join in this very important task.

With this bill's passage today, we will clearly show we are serious about securing our Nation's borders. It is time for our colleagues on both sides of the aisle to join in fixing our entire broken immigration system.

The urgency for immigration reform cannot be overstated because it is so overdue. The time for excuses is now over. The time to get to work is now.

Mr. President, I ask unanimous consent that the bill be read three times, passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record.

Mr. President, I ask unanimous consent that after today, Thursday, August 12, Senator Landrieu be authorized to sign any duly enrolled bills and/or joint resolutions on any day until Friday, August 20, 2010.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn under the provisions of H. Con. Res. 307 and S. Res. 617, as a mark of further respect to the late Senator Ted Stevens, until 2:30 p.m., on Monday, September 13, as provided for under the previous order.

Mr. President, if there is no further business to come before the Senate, I ask that it adjourn under the previous order.

I am going to speak in support of Solicitor Elena Kagan for the Supreme Court in a minute, but just for a brief minute, I wish to speak about another very important issue, the legislation we are about to vote on, the legislation that will help teachers and police officers and firefighters and other workers retain their jobs.

I wish to thank my colleagues from Maine, Senator Olympia Snowe and Senator Susan Collins, for their courageous support of this measure. I would like to take a moment to talk about the critically important component of the legislation we will be voting on shortly.

That component is called the local share language that will send critical aid directly to county governments in any State. The counties in my State are always worried. When we send the money to Albany, they never see it or they see it much later and Albany takes a cut. But legislation that I have been able to put into the bill says: If the local area pays for part of Medicaid, then they should be reimbursed directly.

Anyone who is familiar with New York knows we have some of the highest property taxes in the Nation, way too high.

In fact, residents in West Chester County have the unfortunate distinction of having paid the most in property taxes in the entire country. Nassau County residents follow quickly. On the list of the top 20 counties with the highest property taxes, 5 are in New York. This provision, which will send a total of $530 million directly to local county governments, will have a tangible and important benefit for New Yorkers everywhere. Its No. 1 job is going to prevent counties from having to raise their already too high property taxes. County executives from one end of the State to the other--in Erie County, Nassau County, and others--have told me if they can get this money, this Medicaid relief--the Medicaid burden is so high--it will enable them to not raise property taxes. That is why I fought so hard to ensure this local share language was included in the first stimulus package and now in this bill. We know money sent to Albany far too often stays in Albany. The bill will not only provide property tax relief, it is an investment in our future. It will keep teachers in the classroom and cops on the beat and firefighters in the firehouses. A recession is no excuse to prevent the children from getting the best education they can get, no excuse for letting criminals get away from the dastardly crimes they commit.

Speaking of our children and their futures, I wish to mention one more important thing. We are making these investments without adding a dime to the Federal deficit. In fact, this bill, in addition to the benefits it contains, will reduce the deficit by over $1 billion. Congress should be focused like a laser on fighting unemployment and getting the economy humming on all cylinders again. This bill is part of that ongoing effort. For the good of the country, I implore my colleagues to support this sensible, important bill.

Kagan Nomination

Madam President, later today, we will confirm an exceptionally well- qualified candidate to be an Associate Justice of the Supreme Court, and average Americans will be a step closer to once again having their voices heard in the highest Court in the land. This is because Solicitor General Elena Kagan brings both moderation and practical experience to a Court sorely in need of both.

Why, then, are so many fighting over General Kagan, a nominee who is mainstream through and through? Why are so many fighting? Our judicial system is at the tipping point. Of the six most conservative Justices in living memory, four are on the Court right now. Two of those four were confirmed within the last 5 years. It didn't happen by accident. Many conservatives decry what they call liberal judicial activism, but what they want is judicial activism of the right. Make no mistake about that. There can be activists on the left and on the right. Both seek to impose their views rather than follow the law.

The supposedly staunch opposition to judicial activism on the right has shown its true colors in this debate over a truly moderate and mainstream candidate. They themselves want rightwing judicial activism to pull this country into the past.

I have always said the far right is using the only unelected branch of government to do what it cannot do through the two elected branches--turn back history to a time when corporations and large special interests had more say in our courts than ordinary people. The right has created a kind of judicial activism that is as pernicious as the activism on the left. But they do not see it that way. Activism is their very ideology.

When George Bush was President and conservative majorities in the House and Senate still couldn't pull America back 100 years, they said: We need to do it by the Supreme Court. Hence, extremely conservative nominees were nominated and approved. As a result, our Court is on a collision course with precedent, with the other branches of government and, frankly, with the American people. General Kagan is exactly the antidote we need to put the Court back on the level, to put the bubble back on the plumb. General Kagan is a 6 or 7 on a scale of conservative to liberal, with 1 being the most conservative and the most liberal being 10. The President's nominees were ones, with an occasional two. They were way over to the far right. That is what independent, objective, not Democratic, not Republican analyses show. Again, four of the five most conservative Justices are on the Court right now.

The American people are reaping the bitter harvest from new laws that have been made and old precedents that have been overturned. Put simply, in decision after decision, this conservative, activist Court has bent the law to suit an ideology. At the top of the list, of course, is the Citizens United case where an activist majority of the Court overturned a century of well-understood law that regulated the amount of money special interests could spend to elect their own candidates to public office.

In the Ledbetter case, the Court upended decades of settled law and an agency interpretation to hold that a woman who received less pay than a male colleague is only discriminated against by the first paycheck, not by the last. There are many other examples, over and over--on the Clean Water Act, punitive damages against the Exxon Valdez, antitrust law where, again, favoring the special interests and turning back the law, this conservative majority has become the most activist Court certainly in decades. These truly activist decisions show little respect for Congress, for the executive branch, and for the well-settled understandings the American people commonly hold about our democracy. Yet somehow they label General Kagan as an activist, because she wants to follow precedent. That is not fair, and it is not true.

The record shows that General Kagan's record is replete with cases, articles, opinions, and discussion that shows and proves she is well within the judicial mainstream. First, in the course of her nomination hearing, she answered more than 700 questions. She answered them with a degree of candor and specificity we simply did not see when either Justices Alito or Roberts were before us, nominees who, I submit, actually had conservative agendas to hide from the American people, unlike General Kagan who has nothing to hide. When she was asked her views on interpreting the Constitution, she gave reasoned, detailed answers, the most reasoned, detailed answers I can remember from a nominee. She gave candid and detailed answers about her views of specific precedent governing the right to privacy, the commerce clause, freedom of the press, the second amendment, civil rights, cameras in the courtroom, even about her role as Solicitor General.

When Justice Alito was asked about his views of the takings clause, he gave an opaque answer about the value of owning private property, not even close to the specificity that General Kagan gave. But here we have Members on this side of the aisle saying they won't vote for Kagan because she is not specific enough, when they were in full support of Alito and Roberts who gave far less specific answers. Why? We know why. Again, the view on the right that they want their own brand of activism, judicial activism of the right to pull the Court and the country away from the mainstream.

My colleagues' continuing insistence that General Kagan is hiding and outside the mainstream agenda says more about their agenda than hers. It appears to me the only way to explain some of my colleagues' opposition to General Kagan is, they will vote for only ones and maybe a few twos on the Supreme Court, people way over to the right side. And if one believes in judicial activism of the far right, that is exactly what one would do.

A second sort of evidence of General Kagan's moderation is her stunningly broad bipartisan support. Each of the Solicitors General to serve under Democratic and Republican Presidents for the last 25 years has endorsed her. While at Harvard she got a standing ovation from, of all people, the Federalist Society, the training grounds for many of President Bush's conservative judicial nominees. She bridged the wide ideological divide between conservative and liberal faculty members. She brought together a faculty that had been fighting with one another. They came together under her thoughtful, pragmatic, and moderate decisions. As a result, to a Harvard faculty generally regarded as liberal, she bought in many conservative apppointments.

Why then does General Kagan not have more bipartisan support within this body? Why will she get fewer votes today than all but two Justices in the history of the Court, Justices Alito and Thomas? Again, one need look no further than the sheer amount of law that has been undone by the current Court in the last few years, law that protects ordinary Americans against special interests and corporate interests.

These are the wages of a war that the far right has mounted in order to remake the law. But General Kagan will not be a soldier in their fight and, hence, despite her moderation, does not get their vote.

Having studied the Court's decision in Citizens United, I am increasingly convinced that their war will not be won until we return to 1905, to what legal historians call the Lochner era of Supreme Court jurisprudence. In 1905, squarely in the age of the robber barons, big railroads and even bigger oil, a very conservative majority of Justices held that the people of New York, my State, could not pass laws that limited the legal workweek to 60 hours. This is because the Justices found, somewhere in the due process clause of the 14th amendment, that business had an inherent right to conduct itself without any government regulation, even if public safety was at stake. One hundred years later in Citizens United--same country, different setting, different rules-- it does the same type of thing. Citizens United will go down as the 21st century example of 20th century Lochner. Allowing corporate and special interests, now because they have so much money, to pour that money into our political system without even disclosure, without even knowing who they are or what they are saying or why they are saying it, they are taking politics away, government away from the average person because of the influence of such large amounts of dollars.

Fortunately for Americans, General Kagan will be confirmed today, and gears of the time machine that is set to 1905 will be substantially slowed down. She will be confirmed with some bipartisan support, and I praise my colleagues on the other side who had the courage to break from the hard right. It takes courage to break from the extremes of either side. It is not easy. We all know that, no matter which party we are in. They have had the courage to do it. I salute them. She will be confirmed because she is mainstream, because enough of my colleagues recognize that her practical, real world experience will be a valuable asset to our judicial system and to our country.

And about practical experience, she has it in very real and tangible ways. She is an accomplished lawyer, first female dean of the Harvard Law School, a public servant who worked in all three branches of government. Yet some on the other side call her inexperienced. It is hard to believe. In fact, General Kagan's experience does measure up to her colleagues and predecessors. Like Justice Thomas and the late Justice Rehnquist, General Kagan held high-level political jobs in the executive branch. Like William O. Douglas and Felix Frankfurter, she spent much of her career in academia. And like 38 other Supreme Court Justices

before her, she does not have direct judicial experience, although like many of them, she clerked for a Supreme Court Justice.

Some of my colleagues have belittled General Kagan's experience as better suited to the backwaters of academia than a seat on the highest Court. I think this is wishful thinking on their part, perhaps because they know her real world experience will bring the Court back to the center.

And, in fact, it is clear that her experience at Harvard Law School demonstrates, rather than undermines, her qualifications.

Unlike every other current Justice on the Supreme Court, General Kagan ran a business. She understands much about how the real world functions that many of our current Justices simply do not.

She managed 500 employees and a budget of $160 million annually. Plus, this real world management experience was forged in an environment that was ideologically charged when she arrived.

But it was much less so when she left. Jack Goldsmith, whom Elena Kagan hired and who had been head of President Bush's Office of Legal Counsel, wrote of her:

It might seem over the top to say that Kagan combines

principle, pragmatism, and good judgment better than anyone I

have ever met. But it is true.

General Kagan's skills as a consensus builder are sorely needed on a fractious Court that often struggles to find the moderate ground between its two wings. A recent study showed that last term, the Court issued ``conservative'' opinions 65 percent of the time--more than any term in living memory.

The fact that the pull to the right is so demonstrable suggests also that these decisions are often quite broad--as in the Citizens United case, where the issues that were decided had not initially been briefed. Someone as persuasive and perceptive as General Kagan could help to narrow these decisions, to put together 5 to 4 majorities that issue mainstream, modest opinions.

An important component of General Kagan's pragmatic experience is her gender. As difficult as managing an ideologically diverse law school faculty is for anyone, General Kagan did it as the first woman. I have heard it said that Ginger Rogers did everything Fred Astaire did, but backwards and in high heels.

The exact details obviously don't apply to General Kagan, but the sentiment does.

Serving as the first female dean of Harvard, and the first female Solicitor General, has surely broadened her views and deepened her understanding of how Americans work and relate to one another. Her role as a woman in each of these institutions enriches the practical experience that she will bring to the Court.

This is the candidate whom many of my colleagues have branded as an out-of-the-mainstream liberal activist.

At the end of the day, it is fine to disagree with General Kagan's views and ideology. But labeling such a mainstream candidate as a liberal ideologue sets a troubling precedent. It moves the center further and further to the right.

I am confident that General Kagan is the right candidate for the Supreme Court at the right time. I will proudly cast my vote for her.

I yield the floor.

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

Madam President, I am going to ask unanimous consent for a proposal on the border. First, I will speak for a minute and then ask consent. I know my colleague from Arizona will then speak and offer some amendments to it.

Today, I join my cosponsors--Senators Reid, Inouye, Murray, Feinstein, Bingaman, McCaskill, Casey, Udall of Colorado, Begich, and Burris--to try to make our borders as secure as possible. We are asking unanimous consent to pass a smart and tough $600 million emergency border security appropriations package that will provide immediate relief to the border.

Here is what our border security package will do: It will provide over $250 million to hire 1,500 new agents to permanently patrol our southern border and ports of entry.

It will also create a strike force that will be deployed in different areas of the southwest border, depending on where the need is greatest at any particular moment.

It will provide funds to deploy unmanned drones to fly along our southern border and provide our patrol officers on the ground with real time information on unlawful border crossings. I believe there are seven working now. They have been very successful, and they should be expanded quickly and immediately.

It will provide funds to improve communications capabilities between Federal border enforcement and State and local officers along the border.

It will provide funds to construct forward operating bases for the Border Patrol to use that are actually located on the border instead of being hundreds of miles away.

It will provide funds for Immigration and Customs Enforcement to conduct investigations of drug runners, money launderers, and human traffickers along our border.

It will provide over $200 million to increase the number of ATF, DEA, and FBI agents on our border because the focus on drug dealing and crime on our border is very important and has to be coordinated with immigration enforcement and bolster the number of prosecutors and court resources along our border so wrongdoers can be immediately brought to justice.

The best part of this border package is it is fully paid for and will not increase the deficit by a single penny. The emergency border funds will be paid for by assessing fees on foreign

companies known as chop shops that outsource good, high-paying American technology jobs to lower wage, temporary immigrant workers from other countries. These are companies such as Infosys. But it will not affect the high-tech companies such as Intel or Microsoft that play by the rules and recruit workers in America.

This border package will, therefore, accomplish two important goals. It will make our border far more secure extremely quickly, and it will level the playing field for American companies and American workers to compete against these foreign companies known in the industry as using ``outsourcing visas.''

Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 5875, which is at the desk; that the Schumer substitute amendment, which is the text of S. 3721, a bill making emergency supplemental appropriations for border security for the fiscal year ending September 30, 2010, be agreed to, the bill, as amended, be read three times and passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record.

Yes; 1,000 Border Patrol and 500 ICE and DEA.

So far, exactly right.

Yes.

That is basically correct, yes.

The bottom line is this. I like the H-1B program, and I think it does a lot of good for a lot of American companies. In fact, in the immigration proposal I made, along with Senator Reid and Senator Menendez, as well as the outline with Senator Graham, we expand H-1B in a variety of ways.

There is a part of H-1B that is abused, and it is by companies that are not American companies or even companies that are making something. Rather, they are companies that take foreign folks, bring them here, and then they stay here for a few years, learn their expertise, and go back. We think we should increase the fees when they do that.

Madam President, first, I appreciate the spirit in which the Senator from Arizona has talked about the proposal. Let me try to be in the same spirit. I always said I believe in comprehensive immigration reform. I know my colleague from Arizona has focused on this issue for at least as long as I have. I was involved in the original legislation back in the late eighties with a great deal of care, a great deal of concern, and a great deal of focus.

I hope, even though I cannot accept these amendments, that maybe we could come together on something that we could bring back in September because I do believe we have to secure the border. Even in the comprehensive proposal that we made, we said we have to secure the border and do other things as well. It is my belief that securing the border alone will not solve our immigration problems; that until we have comprehensive reform, particularly in making sure employers do not hire illegal immigrants--which they now do, even though they do not know they are illegal immigrants because documents are so easily forged, that we have to do comprehensive. But we should do the border. To say we have to do comprehensive does not gainsay that we have to work on the border and work on it quickly and soon.

My problems with the amendments are as follows: First and foremost, taking funds from the stimulus is something I could not support. The reason is very simple. In my view--and it may be different than my colleague's--the stimulus creates jobs. I do not want to tell my constituents in Buffalo that they may be laid off or not have the opportunity for a job to work on a road, to be employed as a sheriff or firefighter or teacher because there are less stimulus dollars. I do not believe in robbing Peter to pay Paul.

I prefer our source, which is from these companies which are not, as I say--they are companies whose whole purpose is to bring people in on H-1B and the vast majority of them from other countries who go back to the other countries. That is a better funding source.

On the third amendment, I do believe we have that one, the $21 million for the center. I believe that is in our bill, the Law Enforcement Support Center. I believe that is in our proposal.

As for the second amendment, which is probably the one where we have a substantive disagreement, Operation Streamline is, first, expensive. If you are going to immediately incarcerate everyone who is apprehended at the border, you pay for their medicine, you pay for their health care, you pay for their food. It is over $100 a day. DHS has been using a different program. When they find someone crossing the border illegally, they bring them to the Mexican interior. Secretary Napolitano has shown some good documentation that works, and it is a lot cheaper.

Until proven otherwise, I think we ought to continue that program and maybe expand that program based on the agreement we have that there should be more people on the border so there are more apprehensions.

What we learned in a different area--asylum--is that building detention centers for all those who are caught creates problems.

In New York, we have a large number of asylees--and I support asylum in many justified cases--and it has proven to be very expensive. It has proven to be cumbersome, and oftentimes you don't have the supply of space to keep up with the demand.

So I would respectfully oppose the three amendments and urge that the original proposal be supported.

I yield to my colleague.

I believe so, yes.

I thank the Senator, and I am glad we were able to--

I yield to the Senator for a few thoughts.

I have been told they need to do some conferring in our cloakroom, so the Senator may speak and I will hold off for a minute.

Mr. President, we are waiting to see if there are other Members on our side who would like to come and speak, so I would like to either yield time to the Senator from Rhode Island, who has been waiting on another subject, and then come back to this, or suggest the absence of a

quorum, whichever would be OK with my colleague.

Mr. President, I temporarily yield the floor to my colleague from Rhode Island.

Mr. President, I renew my unanimous consent request.

Mr. President, I wish to thank my colleague. As you know, our goal--most of us on this side--is comprehensive reform. We believe securing the border is part of that, and this bipartisan effort can help move us in that direction. I hope we can move forward in a bipartisan way on many other parts of immigration reform beyond the border in the future.

I yield the floor.

Mr. President, I ask unanimous consent that Liz Saxe, Katharine McFarland, David Zayas, and Miles Clark, law clerks on the Jucidiary Committee staff of Senator Leahy, and Avi Zevin and Jacquelyn Stanley, law clerks on my Judiciary Committee staff, be granted the privileges of the floor for the remainder of the debate on the nomination of Elena Kagan to be Associate Justice for the U.S. Supreme Court.

Mr. President, I very much thank my colleague from Washington, who has been such a leader on

this issue and on so many issues involving our economy, jobs, and the middle class. I thank her for her leadership on this issue as on so many others.

Today, I rise in ardent support of the legislation before us. Let me be clear. This critical funding bill is about one thing and one thing only; that is, saving American jobs. Congress should be focused like a laser on fighting unemployment and getting the economy humming on all cylinders again. This bill is part of that ongoing effort.

Our economy is starting to show signs of life again, but we have a long, long way to go. We are on the road to recovery, but it is a rocky and uncertain one. Too many American families are still suffering from the immeasurable hardship and heartache wrought by the worst recession since the 1930s. We all know the unemployment rate is unacceptably high. What we cannot forget is that high unemployment is not a blue State problem or a red State problem; it is a national problem, and it demands immediate bipartisan attention. If there is only one issue on which we can find common ground this year, it should be jobs. Yet the minority party has blocked this bill at every turn.

There is no doubt about it, if we fail to pass this bill, hundreds of thousands of teachers and firefighters will lose their jobs. Nationwide, 140,000 teachers will be kicked out of the classroom if this bill does not become law. In my home State of New York, there are 7,100 teacher jobs on the line. From Watertown to Buffalo, from Oneida to Queens, every school district will have to make painful cuts. Will those cuts hurt only the teachers? Of course not. Our kids--their education is our future. They will have vital programs cut, their education will decrease, and we all know that a child who loses something in the third grade or the sixth grade or the ninth grade doesn't gain it back. How can you look a kid in the eye and explain that their beloved teacher, Mrs. Ross or Mr. O'Malley, is no longer able to teach this year? We must pass this bill for the good of our Nation's schoolchildren.

From coast to coast State budgets are bleeding. Many States have made tough, responsible choices--cutting important programs and making necessary revenue adjustments. We cannot afford to kick them while they are down by denying them the FMAP and teacher funding.

We are fighting hard to create private sector jobs, and we should. But to then allow so many public sector layoffs robs Peter to pay Paul. We will not be able to reduce unemployment unless both the public and private sectors are healthy.

The bill directly injects money into our economy, and the best thing about it is it saves jobs without adding a dime to the deficit. I say to my colleagues on the other side, again, it saves jobs without adding a dime to the deficit. We cut in other places to help save the jobs of firefighters and teachers. This bill is fully offset. It closes tax loopholes multinational companies use to dodge taxes abroad. We should do that on its own, but the fact that now we have that as the offset, to do something so necessary and so good, is important.

I ask my colleagues to think of this not in terms of macronumbers but in terms of individuals--individuals who have worked hard their whole lives and are now about to be laid off; kids in classrooms who, again, will not be able to have their teacher teach them. Maybe it is that special science class. Some schools are cutting football. Some people think that is frivolous. I think that is an important part of school life.

The greatness of this country depends on us overcoming our problems. Unemployment is a huge problem. The lack of having the best education in the world is a problem. Keeping our streets safe from fire and crime is a problem. We are running away from it here to hide behind ideological barriers.

Let me repeat, this bill saves hundreds of thousands of jobs, provides vital help to the States, and reduces the deficit. For the good of the country, I implore my colleagues on the other side of the aisle to support this sensible and important bill. It is the right thing to do. Maybe just this once, in a bipartisan way, we will rise to the occasion.