Floor Statements

Mr. President, I join as a cosponsor of the bill just introduced because I think it really cuts the Gordian knot. There has been a deadlock on improving the shield law for the very reason that not all disclosures by Government officials to members of the press are equal. We certainly want to protect a whistleblower. We certainly want a person, if they work at the FDA and see that tests are being short- circuited and they go to higher-ups and get nowhere, to be able to go to the press and expose it. It is a far different matter when something is prohibited by statute from being made public, such as with grand jury minutes. Frankly, that dealt with the Plame case. In both cases making that information public was a violation of law. There was a public policy against disclosure, which there is not in the typical whistleblower case.

I believe the reason that the legislation my colleagues from Indiana and Connecticut put in didn't get as much support is that it failed to distinguish that difference. We need to protect the press, especially with a large Government that keeps things secret more and more. But we also have to have some respect for the fact that there are certain things that should not be made public by statute in open debate.

As I said, this legislation cuts the Gordian knot. It protects those matters that should not be made public and doesn't put them under the shield of law but strengthens the protections for whistleblowers and others who might want to expose Government wrongdoing when there is no other way to expose it.

This is a large step forward. It is legislation I am proud to cosponsor. I am very glad that the deadlock has been broken by this thoughtful legislation, which I now believe will garner enough support to become law. Whereas, the previous legislation, as sweeping as it was, would not.

I compliment my colleagues from Indiana, Connecticut, Pennsylvania, and South Carolina, with whom I join as lead cosponsors because it is going to make our country a better place.

Mr. President, I ask unanimous consent that I be ceded 15 minutes from our side's time.

Mr. President, everyone here knows we are going to vote on a $70 billion reconciliation bill later today, and it is far different from the bipartisan bill that originally passed the Senate. I would like all of America to please pay attention to this bill because if anything ever showed the differences between the two parties, this is it. We want to help the middle class; they want to help the richest people in America who are doing very well already. That is the fundamental difference between the bill that left the Senate with bipartisan support and the new bill that is coming back.

My good friend from Texas said: Help the people who earn it. Far too much of this bill goes to the people who make over $1 million a year; far too much. If there were no harm to the middle class, that would be great. But too many provisions that affect the middle class are hurt, and the one that I am going to focus on is one of the best provisions we have passed under this new President, and that is making tuition tax deductible for people whose incomes go up to about $150,000. That is gone. That is not extended for 1 new year or 2 new years; it is gone. And in its place are tax benefits for the wealthy and, worst of all, the removal of $5.1 billion of tax increases on the oil companies which are making record profits. No one likes to tax anybody, but I ask America: Oil companies or middle-class students? Whom do you pick? The leadership, the Republicans, and the President chose the oil companies. Democrats choose middle-class students struggling for college.

It is not just this issue. That is a metaphor for why Americans are looking for change. That is a metaphor for what they finally understand--that the trickle-down economics, which gives the overwhelming benefit of the tax cuts to the wealthy with a few crumbs for the middle class, doesn't work anymore.

Politics is a tough and tricky business, but sometimes you get handed an issue that is so crystal-clear, you want to make sure everybody knows about it. And this tax bill so perfectly shows the Republican majority's misplaced priorities that I think the American people are going to see it the way most of my colleagues and I see it. This bill shows the true colors of the Republican Party, which is far more interested in helping the very wealthy--God bless them--than hard- working middle-class Americans.

Make no mistake about it. There is a choice. There is a choice. You can't do both. And when people on the other side of the aisle, whether they are up for reelection this year or not, vote against our proposals and vote for this tax bill, they will be taking away from the middle class one of the best benefits we have given the middle class in recent years.

Let me talk a little bit about this issue. Several months ago, the Senate passed its version of the tax bill with 66 votes, 17 Democrats, myself among them. Our bill contained AMT relief, which this bill does, but it also contained college tuition. The extender package, including a 4-year extension of college tuition deductibility, which I was proud to author, was in the Senate bill, but because, again, the White House, the House leadership, and Senate leadership said: No, no, no, big oil comes above middle class students, it is gone. To refresh everyone's memory, since our Republican conferees seem to have forgotten, the 2001 tax cut contained a provision that made college tuition deductible for the first time. The deduction, modeled on a bill I championed with Senators Snowe, Biden, Smith, Bayh, and Durbin--bipartisan--allowed middle-class families to deduct $3,000 from their tax return and that deduction was raised to $4,000 a year in 2004.

Last year, single filers who made up to $65,000 and joint filers with income up to $130,000 qualified for the full deduction, and there was also a smaller $2,000 deduction for those with higher incomes.

For the first time, the middle class would get some relief. You know, we help the poor go to college. We help the working poor go to college with Federal grants. That is a great thing. But in every one of our States, middle-class people came to us and said: What about us? I may make $70,000 or $80,000 or $90,000 a year, but I can't afford tuition. We finally came to their aid. It is gone. It is gone because the other side wanted to extend tax cuts that are already there in the outyears for capital gains and dividends.

I am all for reducing the tax on capital gains and dividends, but it is there already. And the cavalier attitude--do something for 2009 and 2010 and take away something from the middle class this year--again, bespeaks volumes as to why the American people are turning away from the majority and the President and turning to us. I have consistently worked with my colleagues to try to expand the deduction. But as I said, this deduction is not in the report.

The conference report is also interesting for what it includes that was not in the Senate version, as I mentioned: the 2003 tax cuts on dividends and capital gains for those earning $1 million a year. We did not include those in the Senate version because the Senate believed that those tax cuts that have already expired, such as the tuition deduction, should take priority over tax cuts that are not scheduled to expire for 3 more years.

I offered a resolution with Senator Menendez, a sense of the Senate, and got 73 votes. There will probably be 20 people who voted for that resolution saying support college tuition, not extend dividend and interest income deductions which go to the very wealthy, that are already on the books, and they are going to flip-flop when they vote for this bill.

Some of my other colleagues are going to speak of the distributional inequities, but I want to speak of the real choices we have with tuition, even assuming that it was a good idea to extend the capital gains and dividends tax cut. As I said, I believe that those taxes should be reduced. I do believe they create growth. But there was another alternative, because in the Senate bill was $5.1 billion which changed the accounting and created revenues from big oil. Again, that was taken out. If it had been kept in, we could have had the dividend cut, we could have had the capital gains cut, we could have had the AMT cut, and we could have saved the tuition deductibility for middle-class students.

So the choice was clear: Big oil or middle-class students. The other party couldn't help itself. They had to side with big oil. That they are going to live with, certainly, through the 2006 elections.

Do you think half of America would choose big oil over college student tax deductions? Do you think a quarter of America would choose that? Do you think 5 percent of America would choose that? Absolutely not. But as in the past, my colleagues on the other side of the aisle think they are insulated from the argument. They think by saying ``tax cuts,'' no one can show which tax cuts they have chosen over others. It is not true anymore. The tuition deductibility is a tax cut just like the other tax cuts in this bill, and it is not there anymore.

The oil provisions should have stayed in. The first related to an accounting method that the oil companies use. Along with Senator Snowe, I added a provision that disallowed the oil companies from using LIFO, which means when the costs of your inputs are rising--in other words, the price of oil--using LIFO allows the oil companies to make their income appear lower than it is so they pay less tax; and oil costs are rising. So this would have simply restored some equity and made sure they paid a fair amount of tax. But the President and the Republican leadership hated this one because they have to protect big oil above the interests of middle-class students.

The Senate passed our provisions with 66 votes, and I suppose the conferees thought that in the dark of night they could put them back.

There was a third provision added by my colleague from Oregon, Senator Wyden, in addition to the two that I offered--one with LIFO and one with profits they make overseas. They didn't put that one back either. President Bush actually spoke out against it a few weeks ago.

So the bottom line is simple, and there is an amazing coincidence. What was the cost of the oil tax breaks? It was $5.1 billion. What would be the cost of extending tuition deductibility for 3 years to middle-class people? It would be $5.1 billion.

America, whom do you choose? If you choose big oil, continue to vote for the other side. If you choose students, vote for us. This bill could have had the exact same provisions in it with all of the arguments made by others about needing the capital gains and dividends tax cuts, if simply the other side had the guts to tell big oil you are still going to make record profits, but we are not going to allow you this extra $5.1 billion. Instead, they are telling hard-working, middle-class families who are struggling to pay tuition: Tough luck. The oil companies come first.

This is a sad day for the middle class. It is a sad day for those of us who know that a college education is crucial for the future for America to stay No. 1. It is a sad day when this Senate turns its back on the interests of others. The Republican majority will try to spin this bill as a boon to the middle class. The facts show it is not true, and we are not going to let them get away with it anymore. Democrats are not afraid to face these issues because we know there are choices. When we convey the choices to the American people, we are confident they will decide we need new leadership in Congress and the White House. We need change. Because a party that once heralded itself as friends of the middle class has turned its back on that middle class for the special interests.

I yield the floor.

Mr. President, yesterday I was pleased to introduce,

along with 21 of my Senate colleagues from diverse political, geographic, and ethnic backgrounds, a bipartisan and bicameral bill to reauthorize the Voting Rights Act of 1965.

The Senate Judiciary Committee has had a very busy year. Last Fall, while the House was beginning its hearings on the Voting Rights Act, we were just finishing our hearings and final vote on the nomination of John G. Roberts, Jr. to be Chief Justice of the Supreme Court. Soon after that, we began preparing for hearings on the nomination of Harriet Miers to replace Justice O'Connor on the Supreme Court. When that nomination was withdrawn, we had to start over with a new nominee, Samuel Alito. We held hearings for Justice Alito in January, and since then, we've had a very full schedule which has included several hearings on the legality of the President's domestic spying program and, of course, countless hours marking up comprehensive immigration legislation.

So, we are just now beginning our work on the Voting Rights Act. But our relatively late start here in the Senate should not be interpreted to suggest that the Voting Rights Act is not a priority compared to the other matters we have had to address. To the contrary, the actions we take with respect to the Voting Rights Act--like the actions we took during the Supreme Court confirmation hearings--will dramatically impact the rights and lives of American citizens for generations to come.

The Voting Rights Act has been hailed as the single most effective piece of civil rights legislation that we have ever passed. The Act does not simply guarantee the right to vote, but it ensures the effective exercise of that fundamental right. In 1965, when President Johnson signed the bill into law, there were only 300 minorities elected to State, local, or federal office. Today, just 4 decades later, there are some 10,000 minorities serving as elected public officials.

Leaders from both parties, including President Bush and Attorney General Gonzales, have said they support reauthorization. Today, leaders from both parties of both houses of Congress have come together to introduce this reauthorization bill.

The magic of the Voting Rights Act is apparent in my own hometown, New York City. New York City is one of the most diverse cities in the country, and the Voting Rights Act has been extremely effective in ensuring that all of our citizens are able to participate equally in the political process. But many of the Act's successes in New York have come only since the last time we renewed its major provisions.

For example, the first African American mayor of New York City wasn't elected until 1989, and the first African American wasn't elected to statewide office until 1994. In 2002, the first Asian American was elected to the New York City Council. And finally, just last year, a mayoral candidate became the first Latino to win his party's nomination.

These strides are important, but they are too few and too recent to say for certain that the goals of the Voting Rights Act have been met. There is still a lot of work to do, and as a member of the Judiciary Committee, I look forward to reviewing the evidence and testimony that is going to be presented at our hearings in the weeks to come, and to working with my colleagues from both Houses and on both sides of the aisle to ensure that this bill is passed well before the deadline.

Mr. President, I ask unanimous consent to lay aside the pending amendments.

Mr. President, I send two amendments to the desk en bloc.

Mr. President, I ask unanimous consent that reading of the amendments be dispensed with.

Mr. President, I will be brief and explain the amendments. I thank my friend from Texas and others for allowing me to go ahead.

Amendment No. 3723

The first amendment is a very simple one. It asks the GAO for a report that includes a review of the mergers between ExxonMobil, ChevronTexaco, ConocoPhillips, and other significant mergers in the oil industry that have occurred since 1990, to look at the impact that vitiating the mergers would have on market concentration, market power, wholesale and retail petroleum prices, and an assessment of the impact of prohibiting any one company from simultaneously owning assets in each of the oil industry sectors: exploration, refining, and distribution.

To me, very simply put, one of the problems--not the only one--we have is we have allowed the oil industry to become too concentrated, letting the No. 1 and No. 2 companies merge because there was a lull in the market at a given time, and then letting No. 3 and No. 4 merge. The second largest foreign company, which I think is the sixth largest American company, all created too much concentration. I think it is one of the reasons that these days we see the price as high as it is.

The prices are sticking. When the spot market goes up, the price immediately goes up; when the spot market goes down, the price takes a long time to go down. When Katrina affected Tennessee, Kentucky, Ohio, and Illinois, and they get most of their oil from the gulf, the price goes up the same amount in California.

I think it is high time that we reviewed these mergers. I don't know if they can be undone. I don't know what the effect would be, but to sit here and shrug our shoulders at this recent phenomenon of mergers doesn't make much sense. This amendment asks that a review be done.

The amendment would also provide more funding to the Energy Information Agency to assure accurate, real-time collection of price and data supply. I think we are not getting that kind of accurate information.

The big oil companies like to be shielded behind the wall of conflicting data and interesting jargon. It is too easy for them to pull the wool over consumers' eyes. The EIA is a nonpartisan governmental agency. This amendment would allow better information to come forward and make sure that we do the right thing.

Amendment No. 3724

The second amendment deals with port security. I know my colleague from New Jersey has offered one. I have been involved in this issue for a long time, as has he. When I went with my friend from South Carolina, Senator Graham, to Hong Kong to visit the ports there, I was utterly amazed at the port security system they have. It showed that we could have speed both in commerce and security. Their checking of containers for nuclear and

other types of devices, checking in a variety of different ways, and having computers crossmatch those ways is incredible.

My amendment would require that the system we saw--not the specific system but what the system does that we saw--be implemented at all container security initiative ports around the world within 3 years. There are 43 CSI ports. They account for 80 percent of worldwide container traffic. It would be a huge boon to preventing the worst that could befall our country, and that is a nuclear weapon be smuggled into our ports.

The amendment mandates that every container pass through the same type of layered screening system, as at the terminal port in Hong Kong. Every container must pass through an advanced radiation portal, internal imaging system, be tagged and cataloged with a label, an RRFI, or a GPS device. It would make us far more secure.

The second amendment also requires that Homeland Security send to Congress within 180 days a detailed plan on how to deploy this system.

Those are the two amendments. I look forward to debating them as we move forward.

I thank my colleagues from Mississippi, Washington, and Texas for their courtesy.

I yield the floor.

I have no objections to the amendment of the Senator from New Hampshire and would be fully supportive of it.

I will speak on another issue for about 5 minutes. I thank my colleague from West Virginia, our great leader, for ceding the time.

From one end of New York to the other, all the talk this past week has been on the high price of gasoline, the high price of oil, the high price of all petroleum products. Oil prices went up to $75 a barrel. Gasoline went up 40 cents in 1 month.

This is not only burning a hole in people's wallets and pocketbooks, but it is also putting a real crimp in our economy. In upstate New York, in New York City, we depend on tourism. Fewer people will drive, fewer people will come. People are making decisions not to buy that extra outfit of clothes for youngsters, not to take the trip to see the grandkids because of the high price of gas and oil.

Yet, today, when the President spoke about this issue for the first time, we did not hear what we needed to hear. The President seems to think that gouging is a problem of the corner gas station. It is not. It is a problem of the dwindling number of large behemoth oil companies. We did not hear from the President the five words we need to hear: Get tough with big oil.

That is the problem. Of course we have a supply and demand problem. We know that. The big oil companies, faced with no competition, take advantage of every twist and turn. Katrina occurs and the price naturally would have gone up, but it goes up higher, stays high longer, and spreads to more areas than need be because the oil companies are taking advantage.

Now we have had the changeover to summer fuels. Again, that cuts down production for a short period of time. But the big oil companies take advantage and keep the price high for too long. Over the last 5 years, never has production been as low as it has been today and stayed so low.

The bottom line is simple. We let--and this happened under Republican and Democratic Presidents--we let 20 oil companies become only 5. When there are so few, there is no competition. And who pays the price? The American consumer and the American economy.

The record profits are not an accident or part of free market capitalism. When you have so few energy producers, you are going to be taken advantage of. That is what the average citizen has found.

To ask for an FTC investigation, as the President did, about gouging, without mentioning big oil, does not make sense because it sure as heck is not the corner gasoline station.

The bottom line is we need to do three things: First, we most definitely need to conserve much more than we have. The fact that China's miles per gallon standards are higher than ours--and China is hardly an environmental country; they are doing it for economic purposes--should make us hang our heads in shame. We need a crash program to find new energy sources.

I, for one, am not averse to finding more fossil fuels while we wait for the new energy source to come online. The amount of money the President has proposed in this budget to do that is paltry.

Finally, we should, for the first time, seriously consider breaking up the big oil companies. As long as they have a stranglehold on us, we are not going to solve this problem. As long as they want to have fossil fuels be the dominant way we power ourselves and keep the prices high as possible and work in cahoots with places such as OPEC, we are not going to solve this problem. When there were 20 competitors, we always faced the fact that 2 or 3 would say I am going to expand market share by keeping the price a little lower. Not anymore. It does not happen.

When you ask, why have things gotten so much worse with oil prices and gasoline prices, part of it is supply and demand, but part of it is we let the antidote to collusion and gouging--good old-fashioned American competition--go by the wayside in the oil industry.

At some point I will be offering an amendment that we do a serious study about whether to and how to break up big oil as was once done about 100 years ago. I don't think there is any other solution that makes sense.

From President Bush, we finally heard some talk. But talk is cheap. The price of gasoline is not. We need serious action on conservation, on new energy sources, and on dealing with big oil if we are going to solve this problem and keep America as strong as possible.

I thank my colleague from West Virginia and yield the floor.

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

I ask unanimous consent to go off the ethics bill for 5 minutes to speak in morning business to introduce a bill.

Madam President, I suggest the absence of a quorum.

Mr. President, one of the issues that has been hovering over this Chamber--and this country, of course--is the NSA program, the President's program to do wiretaps on American citizens if part of the call originated in a foreign country.

First, let me stress that I think most of us in this Chamber, Democrat and Republican--certainly myself--believe the President should be given the tools he needs to fight terror. In this brave new world, the tools are different, and because a rule worked in 1960 or 1980 does not necessarily mean it works in 2005 or 2006 or 2004. We have to be flexible. I think you can be flexible in a way that both protects our security and protects our liberty. In most issues, this does not conflict. My watchword on most of these issues is: Have a debate, have a standard, and have an independent arbiter check that that standard is being met.

That worked, for instance, in wiretaps. Before 1971, it was a mess. J. Edgar Hoover was listening in on whomever he chose. There was a debate on this issue. There was a standard--probable cause--and there is an independent arbiter, a federal judge, who determines whether probable cause is met. And it works. Neither the prosecutors nor the defense bar have any complaints.

We could come to the same exact conclusion in the new world we face, where warrants are needed far more quickly regarding many more people. If you are doing information gathering where you look for patterns, that might be needed. Again, because one way worked in the past doesn't mean it still works, and I think most Members, myself included, want to be flexible. The problem is when the executive branch arrogates this issue to itself and says, We can decide to do whatever we want, either under the constitutional executive power--that is pretty broad--or even under a grant of war powers, a grant to use force which, as most know, I supported back when the President asked for it in 2001.

Now there is a great debate. The President and his supporters say he was allowed to do these wiretaps without changing the law, without congressional approval. Some on the other side say he never should have been allowed to do it. I think that is a small minority. Many others say: Yes, he should be allowed to do it, but there ought to be a congressional debate, a change in the law, and perhaps a standard would be applied.

Right now we are deadlocked on that issue. We are deadlocked because, whether it is the Intelligence Committee, the Judiciary Committee on which I serve, this body in general, or the Nation--nobody knows, did the President go outside the ambit of the law about asking for a warrant? Some think yes, and they are pretty sure of that. Some think no, and they are pretty sure of it. They are pretty sure that he couldn't. Many are not sure at all.

I ask you, who is the logical group or person to make that determination? The executive branch generally through our history has had a lean to expand executive power. That is natural.

The legislative branch has had a lean on the other side. That is how the Founding Fathers set up our Government in their wisdom and it seems to have worked very well ever since 1789. To say we should just go along with what the executive branch wants is not going to work. Frankly, even though I am a Senator and believe in protecting the legislative prerogative, if we only did what the legislative branch wanted, that probably wouldn't work, either; and, needless to say, we are divided on this.

The most logical place for this to be settled is in the U.S. Supreme Court. They don't side with executive or legislative power, necessarily. They are authoritative, they are respected, in a sense they are the supreme arbiters, and they could put this question to rest and we could move on.

There is one difficulty. There will be people who will challenge these wiretaps through the normal process and we might get to the Supreme Court in 3 or 4 years. During all that time, the gridlock and deadlock we face on this issue, and the concomitant gridlock and deadlock that occurs in other issues related to this, would be hanging over this body. So I tried to figure out how can we get the Supreme Court to hear this case quickly.

The bill I am introducing right now will do just that. We have consulted some expert authorities and there are two basic problems--one easier, one harder. The easier is to simply expedite the judicial process, to grant expedited review. The minute a case is decided in the district court, it goes right up to the Supreme Court because time is of the essence--and I believe it is here. We have good precedent for this. It was done recently so the Supreme Court could hear on an expedited basis McCain-Feingold, and they came to a conclusion, and elections could be held and we moved forward. That is a typical example of where you would do that.

Our bill does grant such expedited review. But what about standing? How do you quickly get into the district court to do this? And, by the way, I have a feeling very few in this body would want to grant an expedited hearing to someone who might be participating in or accused of terrorism. So you have a dilemma that, while you want expedited review and it would seem logical that the Supreme Court should be the place, the cases that are out there are not the ones that would seem to merit that kind of expedited review--a special case; particularly if someone is accused of terrorism. We in New York know better than anywhere else that is a dastardly act.

What we have done--frankly, in consultation with some leading experts on this--is we have granted standing to a

very narrow class of citizens who actually have refrained from making overseas calls because of a fear that they might be listened to under the NSA program. But these are not people who are accused of terrorism in any way. These are, rather, people who maybe would be--and it is a small class--business people who would regularly call, say, Afghanistan. Maybe they are importing rugs, who knows? But they are afraid to because their calls might be listened in to.

It might be academics, maybe a professor of linguistics who might be doing research into the Pashtun language, and now has refrained from making calls. These are people who have been chilled by the reports that their calls might be listened in to. They are American citizens calling the foreign country and would have standing.

Our bill gives those people standing, gives them a right to go to district court quickly and then with expedited review to the Supreme Court, so we could actually get a decision, very possibly, on whether the President's wiretapping was under the ambit of the law very quickly. It is very authoritative. It might break through the dilemmas we face.

I am introducing this legislation this afternoon and I ask my colleagues to give it careful consideration. It is clearly not partisan legislation. Given the current composition of the Supreme Court and the two new Justices who have just been added, it is hardly a liberal or Democratic court, and it could settle the issue once and for all so our country could achieve some comity on this issue and move on and discuss other issues.

I urge my colleagues and everyone else in this great country of ours to examine this legislation, see if they wish to support this legislation or something close to it, and maybe we can move this kind of bill on the floor quickly so we could get the kind of expedited review that I think many of us would seek from the one body that would have the authority to make such review ultimately, and that is the U.S. Supreme Court.

The bill will be handed to the desk for introduction.

Mr. President, one of the issues that has been hovering over this Chamber--and this country, of course--is the NSA program, the President's program to do wiretaps on American citizens if part of the call originated in a foreign country.

First, let me stress that I think most of us in this Chamber, Democrat and Republican--certainly myself--believe the President should be given the tools he needs to fight terror. In this brave new world, the tools are different, and because a rule worked in 1960 or 1980 does not necessarily mean it works in 2005 or 2006 or 2004. We have to be flexible. I think you can be flexible in a way that both protects our security and protects our liberty. In most issues, this does not conflict. My watchword on most of these issues is: Have a debate, have a standard, and have an independent arbiter check that that standard is being met.

That worked, for instance, in wiretaps. Before 1971, it was a mess. J. Edgar Hoover was listening in on whomever he chose. There was a debate on this issue. There was a standard--probable cause--and there is an independent arbiter, a federal judge, who determines whether probable cause is met. And it works. Neither the prosecutors nor the defense bar have any complaints.

We could come to the same exact conclusion in the new world we face, where warrants are needed far more quickly regarding many more people. If you are doing information gathering where you look for patterns, that might be needed. Again, because one way worked in the past doesn't mean it still works, and I think most Members, myself included, want to be flexible. The problem is when the executive branch arrogates this issue to itself and says, We can decide to do whatever we want, either under the constitutional executive power--that is pretty broad--or even under a grant of war powers, a grant to use force which, as most know, I supported back when the President asked for it in 2001.

Now there is a great debate. The President and his supporters say he was allowed to do these wiretaps without changing the law, without congressional approval. Some on the other side say he never should have been allowed to do it. I think that is a small minority. Many others say: Yes, he should be allowed to do it, but there ought to be a congressional debate, a change in the law, and perhaps a standard would be applied.

Right now we are deadlocked on that issue. We are deadlocked because, whether it is the Intelligence Committee, the Judiciary Committee on which I serve, this body in general, or the Nation--nobody knows, did the President go outside the ambit of the law about asking for a warrant? Some think yes, and they are pretty sure of that. Some think no, and they are pretty sure of it. They are pretty sure that he couldn't. Many are not sure at all.

I ask you, who is the logical group or person to make that determination? The executive branch generally through our history has had a lean to expand executive power. That is natural.

The legislative branch has had a lean on the other side. That is how the Founding Fathers set up our Government in their wisdom and it seems to have worked very well ever since 1789. To say we should just go along with what the executive branch wants is not going to work. Frankly, even though I am a Senator and believe in protecting the legislative prerogative, if we only did what the legislative branch wanted, that probably wouldn't work, either; and, needless to say, we are divided on this.

The most logical place for this to be settled is in the U.S. Supreme Court. They don't side with executive or legislative power, necessarily. They are authoritative, they are respected, in a sense they are the supreme arbiters, and they could put this question to rest and we could move on.

There is one difficulty. There will be people who will challenge these wiretaps through the normal process and we might get to the Supreme Court in 3 or 4 years. During all that time, the gridlock and deadlock we face on this issue, and the concomitant gridlock and deadlock that occurs in other issues related to this, would be hanging over this body. So I tried to figure out how can we get the Supreme Court to hear this case quickly.

The bill I am introducing right now will do just that. We have consulted some expert authorities and there are two basic problems--one easier, one harder. The easier is to simply expedite the judicial process, to grant expedited review. The minute a case is decided in the district court, it goes right up to the Supreme Court because time is of the essence--and I believe it is here. We have good precedent for this. It was done recently so the Supreme Court could hear on an expedited basis McCain-Feingold, and they came to a conclusion, and elections could be held and we moved forward. That is a typical example of where you would do that.

Our bill does grant such expedited review. But what about standing? How do you quickly get into the district court to do this? And, by the way, I have a feeling very few in this body would want to grant an expedited hearing to someone who might be participating in or accused of terrorism. So you have a dilemma that, while you want expedited review and it would seem logical that the Supreme Court should be the place, the cases that are out there are not the ones that would seem to merit that kind of expedited review--a special case; particularly if someone is accused of terrorism. We in New York know better than anywhere else that is a dastardly act.

What we have done--frankly, in consultation with some leading experts on this--is we have granted standing to a

very narrow class of citizens who actually have refrained from making overseas calls because of a fear that they might be listened to under the NSA program. But these are not people who are accused of terrorism in any way. These are, rather, people who maybe would be--and it is a small class--business people who would regularly call, say, Afghanistan. Maybe they are importing rugs, who knows? But they are afraid to because their calls might be listened in to.

It might be academics, maybe a professor of linguistics who might be doing research into the Pashtun language, and now has refrained from making calls. These are people who have been chilled by the reports that their calls might be listened in to. They are American citizens calling the foreign country and would have standing.

Our bill gives those people standing, gives them a right to go to district court quickly and then with expedited review to the Supreme Court, so we could actually get a decision, very possibly, on whether the President's wiretapping was under the ambit of the law very quickly. It is very authoritative. It might break through the dilemmas we face.

I am introducing this legislation this afternoon and I ask my colleagues to give it careful consideration. It is clearly not partisan legislation. Given the current composition of the Supreme Court and the two new Justices who have just been added, it is hardly a liberal or Democratic court, and it could settle the issue once and for all so our country could achieve some comity on this issue and move on and discuss other issues.

I urge my colleagues and everyone else in this great country of ours to examine this legislation, see if they wish to support this legislation or something close to it, and maybe we can move this kind of bill on the floor quickly so we could get the kind of expedited review that I think many of us would seek from the one body that would have the authority to make such review ultimately, and that is the U.S. Supreme Court.

The bill will be handed to the desk for introduction.

I ask unanimous consent the privilege of the floor be granted to Rebecca Kelly of my staff.

Mr. President, since I offered the amendment on the Dubai Ports World, a lot has happened. In fact, Dubai Ports World has agreed to sell its U.S. operations, and so it will have no control over them. That will happen over the next several months. The administration has agreed that should be what happens.

Obviously, we are going to keep a watchful eye on the deal, and should for some reason--and I have no expectation this will occur--the deal not be allowed, we would want to bring the amendment back to the floor. The majority leader has graciously agreed that we would be allowed to do so, although I have no expectation that will happen.

So I ask unanimous consent to withdraw the pending amendment.

Mr. President, first I thank my colleague from New Hampshire. He is a tough old New Englander, but he has a heart of gold, even when he is wrong on the merits.

Mr. President, I salute my colleague from New Jersey for offering this amendment. It says one thing loudly and clearly. Even though, as we hope and believe, the Dubai Ports World deal is now scuttled as far as American ports, we have miles and miles to go on port security. This is not new to this Chamber. I have introduced amendment after amendment. I know my colleague from Washington, Patty Murray, and the Senator from Maine, Susan Collins, and others have all tried to do more for port security. This amendment does much of the job. We have to inspect more than 5 percent of the containers. We need a crash research project so we can develop devices that can scan for nuclear or biological or chemical weapons. We need our ports to have employees who cannot forge documents and get a job for bad purposes.

Mr. President, we need to make sure, for those who operate the ports, when they are checked for security that it is a real check and they can't forge documents or sneak in.

There are so many things to do on port security. Even if every port were owned by an American company that had the best of intentions, we would not be doing close to enough.

So I urge my colleagues to support the amendment of my colleague from New Jersey because we have such a long way to go on port security. It is a neglected stepchild of our homeland security project, and you cannot do it, you cannot do it without the dollars the Senator from New Jersey has suggested.

I urge my colleagues to support this amendment to make sure more cargo is scanned, to have better screening equipment, tighter security among employees, and the other many good things this amendment does.

I yield my remaining time back to my colleague from New Jersey.

Madam President, I thank my colleagues, particularly my good friend from Connecticut, as well as the minority leader, for laying out our position. Before I begin, I do want to thank the Senator from Maine, the Senator from Connecticut, his colleague, the other Senator from Connecticut, as well as the Senator from Mississippi for their hard work on this issue. Nobody gainsays the importance of doing ethics reform. I certainly have been a member of the Rules Committee and involved in it. The bottom line is very simple: Doing ethics reform and dealing with the Dubai issue are not mutually exclusive. We can do both. We can do both this week. The motion made by the minority leader makes that perfectly clear. The two are not mutually exclusive. Nothing would make us happier on this side of the aisle than working out an agreement where we would be given time to debate this amendment, separately or as part of the bill, whichever would be the majority's preference, and then move back to the very important, thoughtfully worked-out legislation on ethics reform.

We have to deal with the Dubai ports issue not in April or May but now. That is not only what the American people want, it is important to every one of us. I come from New York. We went through 9/11. Ever since that day, ever since the next day, when I put on this flag which I wear every day in memory of those who were lost, I have said: We have to do everything we can to make sure it doesn't happen again. That doesn't mean it should be No. 16 or No. 17 or even Nos. 3 or 4 on the list. It should be No. 1.

When we heard that Dubai Ports World was going to take over our ports, it naturally raised alarms, not because the country was an Arab country but because the country had had a long nexus with terrorism. The more you look at the deal, the worse it gets. That is the problem.

First, we find out that the review done by the CFIUS committee was cursory, quick. They didn't even call the port authorities, such as New York, New Jersey, and ask about it. The letter that my friend from South Carolina first procured, Senator Graham, given to Senator Reid and myself, lays out very clearly how an operator of a port can have a great deal to do with security. Then not only did we find out that the review was cursory and casual, it seemed that the wheels were greased to let this deal go through. Everything was quick. Everything was secret. Everything was quiet.

A group of us--myself, my colleague from North Dakota, both colleagues from New Jersey, my colleague from New York, both colleagues from Connecticut, many others from the metropolitan areas--said: We have to do something. We have to move because we can't wait. The bipartisan legislation that we introduced said: Put the deal on hold. Do the 45-day review.

Make sure the report goes to Congress. We get to see it; a nonclassified version goes to the American people. And then we get the right, if we choose, to disapprove.

The 45-day review was going forward, but none of the other conditions have been met. Right now the law would be such that the 45-day review would go forward. We wouldn't know how thorough it would be because it would be secret. The Congress and the American people would never know the results of the review, and the President would get to say ``yes'' or ``no.'' The President has already said ``yes.'' If the President had said: I am going to take a new look at this after the 45-day review, it might give us some hope. But he didn't. It is Alice in Wonderlandlike-- verdict first, trial second.

Then, this weekend, a few more things occurred. The head of Dubai Ports World was on national television in America on a CNN show. And when asked by Wolf Blitzer, chief correspondent in Dubai, how many containers do you inspect here in Dubai, he answered: I don't know.

When asked what kind of security guarantees do you have about the employees who might work on the perimeter or with the cargo manifests, he didn't even care. He simply said: We have to make our British shareholders happy. That has been the whole trouble with this process. That has been the trouble with the CFIUS process. It seems that economics and diplomacy trump security.

In fact, I have been around the CFIUS process for a while, being a member of the House Banking Committee and now the Senate Banking Committee. I have been on the Banking Committees for every one of my 26 years in Congress. Basically, it was passed before I got here, but the CFIUS process was basically done to give national security cover and allow economic deals to go forward. Because in the 1980s and the 1990s, the greatest concern we had was not security but economics. After 9/11, all that changed, but the CFIUS process did not.

Many of us have come to the same conclusion that Jerry Lewis in the House came to, and I guess 62 of the 64 Appropriations Committee members, bipartisan, in the House Appropriations Committee, that this deal should be stopped.

We don't have the luxury of waiting. That appropriations bill may not get over here until April, the supplemental. It may not be voted on until May. The deal will be consummated and done. And then they will say: You can't undo it. There will be constitutional and legal problems.

We have to act now. There are a variety of ways to act. I have chosen one. There is no monopoly on that. Maybe there is another. And certainly there are a variety of procedures. We can vote, as Senator Reid offered, as a separate standing bill today, tomorrow, early next week. We can do it as part of this bill. We can make an arrangement and make it somewhere else. But the voice of the Senate must be heard. Lobbying reform is important, yes, but so is security. Lobbying reform has some time urgency, given everything we have seen, yes, but not more time urgency than this deal which might engender our security.

Let me be clear: We can do both. This Chamber can walk and chew gum at the same time. We can spend some time debating this, go back to lobbying reform and accomplish both our goals. But let me make one thing clear: We will use whatever parliamentary means we can to make sure there is a vote on this issue. In recent months and years, the Senate has changed. It is much harder to offer amendments. The tree is filled up. There are agreements that amendments cannot be germane. Cloture is filed. Our job, my job, as I represent 19 million New Yorkers, is to see that they are secure, above all. Therefore, I believe that we must vote on this amendment soon, quickly, and move on to other business.

I tell my colleagues, certainly this Senator from New York and, I think, many of my colleagues, will do everything we can to make sure that there is a vote on Dubai Ports World, a meaningful vote that ends the deal before it is too late.

I yield the floor.

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

Mr. President, I ask unanimous consent that I be given 5 minutes of the minority's time on this.

Thank you, very much, Mr. President. We are approaching this cloture vote at 2 o'clock.

One thing is very clear; that is, that doing ethics reform and dealing with the Dubai issue are not mutually exclusive. We can easily do both this week, and the motion made earlier by the minority leader makes that perfectly clear. The two are not mutually exclusive.

Mr. President, the Senator from Virginia has asked that he speak before me, which I will accede to. He has always been gracious on the floor. So I ask unanimous consent that immediately following his time I be given 5 minutes of the minority's time.

Mr. President, first, let me thank my colleague from Virginia for his unfailing efforts to try to find a solution here that would solve the many different goals and needs of the situation of the purchase by Dubai Ports World of British P&O.

I believe the words that were mentioned in Mr. Bilkey's letter--I tried to write them down here--were that DP World will ``transfer fully'' to a U.S. entity.

Could I ask my colleague to yield for a question? Did I get the words exactly right? I would be happy to yield for a question. I just want to make sure I got the words right in the letter which my friend from Virginia just read--that DP World will ``transfer fully.''

Obviously, this is a promising development, but of course the devil is in the details. I think those of us who feel strongly about this issue believe that the U.S. part of the British company should have no connection to the United Arab Emirates or DP World, which is fully owned by the United Arab Emirates.

So therefore, we would have to examine their proposal.

The bottom line is, again, if U.S. operations are fully independent in every way, that could indeed be promising. If, on the other hand, there is still ultimate control exercised by DP World, I don't think our goals will be accomplished. Obviously, we will need to study this agreement carefully.

I again thank my colleague from Virginia for his unstinting efforts, like everything he does, to try to come up with a fair and reasonable compromise.

In the meantime, I urge my colleagues to join in voting against cloture at this point in time. Obviously, the vote occurs at 2 o'clock, and this brief statement by Mr. Edward Bilkey is something which has to be studied.

At this point in time, the amendment I have offered, along with so many of my colleagues on this side of the aisle, should remain in play.

I make a couple of points about that. First, I believe strongly in ethics reform. I believe this Senate can do both at once, ethics reform and deal with the Dubai issue. They are not mutually exclusive.

The bottom line is we have offered to take a few hours off ethics reform, vote on my amendment as a freestanding bill, and then go back to ethics reform. It is truly the actions of the other side--invoking cloture, refusing to let this amendment come up--if cloture is not invoked, which I believe it will not be, that will be slowing down ethics reform. It is the intention of those on this side--and I know our minority leader will speak to this--to turn to ethics reform when we can but not in exclusion, not in place of, getting a vote on this particular issue.

The bottom line is very simple. There have been too many concerns raised about DP Ports World and its views of security, its actions in regard to security. We cannot any longer play roll-the-dice. We cannot roll the dice when it comes to the security of our Nation. The way this deal was approved initially, the secret nature by which this investigation occurred--casual, cursory--is simply not good enough. We have to examine the whole issue of port security.

I have been pushing that issue for many years, ever since September 11. Hopefully, out of this sorry mess, we will look at that. In the meantime, this deal should not go through. This deal creates too many unanswered questions. To simply allow the President, who has already said he is for the deal even before the investigation is completed, to have the only and final say is wrong.

I urge a vote against cloture.