Floor Statements

Mr. President, I ask unanimous consent that Mary Future and Carter Burwell, detailees from the Department of Justice, be given the privileges of the floor during the 114th Congress.

Mr. President, the Committee on the Judiciary has adopted rules governing its procedures for the 114th Congress. Pursuant to rule XXVI, paragraph 2, of the Standing Rules of the Senate, I ask unanimous consent that a copy of the committee rules be printed in the Record.

Mr. President, I rise today to introduce, along with Senator Franken, the Family Farmer Bankruptcy Clarification Act of 2015. I thank Senator Franken for his work on this bill and for his support. We introduced identical legislation in the 113th Congress and similar legislation in the 112 Congress. Unfortunately, the Senate has never had the opportunity to consider these bills and the problem we seek to correct.

This bipartisan bill addresses the 2012 United States Supreme Court case Hall v. United States. In a 5-4 decision, the Supreme Court ruled that a provision I inserted into the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act didn't accomplish what we in Congress intended. The Family Farmer Bankruptcy Clarification Act of 2015 corrects this and clarifies that bankrupt family farmers reorganizing their debts are able to treat capital gains taxes owed to a governmental unit, arising from the sale of farm assets during a bankruptcy, as general unsecured claims. This bill will remove the Internal Revenue Service's veto power over a bankruptcy reorganization plan's confirmation, giving the family farmer a chance to reorganize successfully.

In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide a specialized bankruptcy process for family farmers. In 2005 Chapter 12 was made permanent. Between 1986 and 2005 we learned what aspects worked and didn't work for family farmers reorganizing in bankruptcy. One problematic area was where a family farmer needed to sell assets in order to generate cash for the reorganization. Specifically, a family farmer would have to sell portions of the farm to generate cash to fund a reorganization plan so that the creditors could receive payment. Unfortunately, in situations like this, the family farmer is selling land that has been owned for a very long time, with a very low cost basis. Thus, when the land is sold, the family farmer is hit with a substantial capital gains tax, which is owed to the Internal Revenue Service.

Under the Bankruptcy Code, taxes owed to the Internal Revenue Service receive priority treatment. Holders of priority claims must receive payment in full, unless the claim holder agrees to be treated differently. This creates problems for the family farmer who needs the cash to pay creditors to reorganize. However, since the Internal Revenue Service has the ability to require full payment, they hold veto power over a plan's confirmation, which means in many instances the plan will not be confirmed. This does not make sense if the goal is to give the family farmer a fresh start. Thus, in 2005 Congress said that in these limited situations, the taxes owed to the Internal Revenue Service would be

stripped of their priority and treated as general unsecured debt. This removed the government's veto power over plan confirmation and paved the way for family farmers to reorganize.

Unfortunately, in Hall v. United States, the Supreme Court ruled that despite Congress's express goal of helping family farmers, the language inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. The Hall case was one of statutory interpretation. There is no question what Congress was trying to do; rather, did Congress use the correct language? My goal, along with others at the time, was to relieve family farmers from having their reorganization plans fail because of huge tax liabilities to the Federal Government. Justice Breyer noted this in the dissent: ``Congress was concerned about the effect on the farmer of collecting capital gains tax debts that arose during (and were connected with) the Chapter 12 proceedings themselves. . . . The majority does not deny the importance of Congress' objective. Rather, it feels compelled to hold that Congress put the Amendment in the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897, 2012.

As a result of the Hall case, family farmers facing bankruptcy now find themselves caught in a tough spot. The rules have now been changed and must be corrected in order to provide certainty and clarity in the law. The Family Farmer Bankruptcy Clarification Act of 2015 will provide the clarity needed to help family farmers.

This bill adds a new section 1232 to title 11 of the United States Code. This new section, along with other conforming changes to the Bankruptcy Code, gives guidance and certainty to debtors, practitioners, and courts as to how these claims are to be treated during bankruptcy. I am pleased that the bill we are introducing today will help family farmers who are facing hard times. The Family Farmer Bankruptcy Clarification Act of 2015 ensures that what Congress sought to do in 2005 actually occurs. In the wake of the Hall decision, this bill is needed in order to help family farmers reorganize successfully.

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

Mr. President, I rise today to introduce, along with Senator Franken, the Family Farmer Bankruptcy Clarification Act of 2015. I thank Senator Franken for his work on this bill and for his support. We introduced identical legislation in the 113th Congress and similar legislation in the 112 Congress. Unfortunately, the Senate has never had the opportunity to consider these bills and the problem we seek to correct.

This bipartisan bill addresses the 2012 United States Supreme Court case Hall v. United States. In a 5-4 decision, the Supreme Court ruled that a provision I inserted into the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act didn't accomplish what we in Congress intended. The Family Farmer Bankruptcy Clarification Act of 2015 corrects this and clarifies that bankrupt family farmers reorganizing their debts are able to treat capital gains taxes owed to a governmental unit, arising from the sale of farm assets during a bankruptcy, as general unsecured claims. This bill will remove the Internal Revenue Service's veto power over a bankruptcy reorganization plan's confirmation, giving the family farmer a chance to reorganize successfully.

In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide a specialized bankruptcy process for family farmers. In 2005 Chapter 12 was made permanent. Between 1986 and 2005 we learned what aspects worked and didn't work for family farmers reorganizing in bankruptcy. One problematic area was where a family farmer needed to sell assets in order to generate cash for the reorganization. Specifically, a family farmer would have to sell portions of the farm to generate cash to fund a reorganization plan so that the creditors could receive payment. Unfortunately, in situations like this, the family farmer is selling land that has been owned for a very long time, with a very low cost basis. Thus, when the land is sold, the family farmer is hit with a substantial capital gains tax, which is owed to the Internal Revenue Service.

Under the Bankruptcy Code, taxes owed to the Internal Revenue Service receive priority treatment. Holders of priority claims must receive payment in full, unless the claim holder agrees to be treated differently. This creates problems for the family farmer who needs the cash to pay creditors to reorganize. However, since the Internal Revenue Service has the ability to require full payment, they hold veto power over a plan's confirmation, which means in many instances the plan will not be confirmed. This does not make sense if the goal is to give the family farmer a fresh start. Thus, in 2005 Congress said that in these limited situations, the taxes owed to the Internal Revenue Service would be

stripped of their priority and treated as general unsecured debt. This removed the government's veto power over plan confirmation and paved the way for family farmers to reorganize.

Unfortunately, in Hall v. United States, the Supreme Court ruled that despite Congress's express goal of helping family farmers, the language inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. The Hall case was one of statutory interpretation. There is no question what Congress was trying to do; rather, did Congress use the correct language? My goal, along with others at the time, was to relieve family farmers from having their reorganization plans fail because of huge tax liabilities to the Federal Government. Justice Breyer noted this in the dissent: ``Congress was concerned about the effect on the farmer of collecting capital gains tax debts that arose during (and were connected with) the Chapter 12 proceedings themselves. . . . The majority does not deny the importance of Congress' objective. Rather, it feels compelled to hold that Congress put the Amendment in the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897, 2012.

As a result of the Hall case, family farmers facing bankruptcy now find themselves caught in a tough spot. The rules have now been changed and must be corrected in order to provide certainty and clarity in the law. The Family Farmer Bankruptcy Clarification Act of 2015 will provide the clarity needed to help family farmers.

This bill adds a new section 1232 to title 11 of the United States Code. This new section, along with other conforming changes to the Bankruptcy Code, gives guidance and certainty to debtors, practitioners, and courts as to how these claims are to be treated during bankruptcy. I am pleased that the bill we are introducing today will help family farmers who are facing hard times. The Family Farmer Bankruptcy Clarification Act of 2015 ensures that what Congress sought to do in 2005 actually occurs. In the wake of the Hall decision, this bill is needed in order to help family farmers reorganize successfully.

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

Mr. President, before I speak, I have two unanimous consent requests: No. 1, that Senator Whitehouse be allowed to follow me and, No. 2, that my remarks not break up the debate on the pipeline bill.

Mr. President, I rise to speak about the issue of EPA regulation of waters of the United States rule. I see it as one of the biggest power grabs by an agency in a long time--particularly the EPA.

Before I speak on that issue, I wish to bring attention to some headlines that appeared both in Iowa and nationally on this issue. I will quote the Wall Street Journal: ``Watch Out For That Puddle, Soon It Could Be Federally Regulated.''

The next quote is from an Iowa Farm Bureau spokesman: ``Water rule is really about control of land.''

The next quote is from a Farm Bureau spokesman: ``Water rule intrudes on property rights, hurts conservation.''

Farm Bureau spokesman said: ``EPA proposal would regulate all water wherever it flows.''

Farm Bureau spokesman: ``Water rule threatens U.S. agriculture.''

The last quote is also from the a Farm Bureau spokesman: ``Rule is threat to conservation momentum . . . a flood of red tape.''

Last spring the EPA and Army Corps of Engineers published a proposed rule to define ``waters of the United States.'' This is part of a long history of attempts to determine the scope of the Federal Government's jurisdiction under the Clean Water Act. The latest proposal has generated no shortage of rhetoric from those concerned about the rule as well as those defending the rule. However, you would be hard pressed to call it a true debate.

Rather than making a serious attempt to address the numerous legitimate concerns with the rule, the Environmental Protection Agency and their allies in the professional advocacy community have attempted to push a narrative that tries to portray critics of the rule as misinformed, nutty or in favor of water pollution.

They, the advocacy community, claim the rule simply clarifies the jurisdiction of Federal agencies, and they also claim it does not expand that jurisdiction in any way. The EPA also promises that it will not interfere with the farmer's routine use of their own land.

Given its history of ignorance and indifference toward the needs of rural America, it is no wonder EPA's assurances are met with skepticism by many in America, but it is particularly met with skepticism by America's farmers.

The EPA will have another chance to consider the concerns of farmers and many other Americans as it reviews the formal comments it collected before issuing the final rule. Still, given the fact that EPA officials--starting with Administrator McCarthy--went out of their way to be dismissive of legitimate criticisms even while the comment period was still open, I am not going to hold my breath hoping for a change of heart on the part of the EPA.

First, it is important to understand that this debate is not about whether we should have clean water protections but which level of government is in the best position under our laws, and the intent of those laws, to manage which bodies of water.

Despite what some interest groups would have you believe, no one is arguing that farmers or anybody else should be allowed to dump pollutants in the waterway. There is also no question that there is a very important role for the Federal Clean Water Act to protect interstate bodies of water.

However, the Clean Water Act itself clearly states:

It is the policy of Congress to recognize, preserve, and

protect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution, to plan the

development and use (including restoration, preservation, and

enhancement) of land and water resources, and to consult with

the Administrator in the exercise of his authority under this

chapter.

That is in the law right now, and it has been there a long time. The complicated Federal clean water permitting process is appropriate if a factory is looking to discharge waste into a river, but does it make sense to require a farmer to apply for a Federal permit to build a fence on his own land?

There is clearly a limit to where Federal regulation is appropriate, where Federal regulation is effective, and where Federal regulation is legal. In fact, expanding the cumbersome Federal permitting process to cover lands it was not designed for would actually be counterproductive in my State of Iowa and probably a lot of other States as well.

Forcing farmers to file for a Federal permit would add significant redtape for Iowa farmers as they make routine decisions about how best to use their land. Ironically, that could delay or deter farmers from undertaking projects to improve water quality, and that is why I quoted some members of the Farm Bureau earlier.

There was one story that very specifically said farmers in Iowa were willing to spend a lot of their own money to do some conservation practices that everybody would be very happy with, but they are not going to spend their own money because they cannot even get an answer from the Corps and the EPA on whether they even need a permit. They are not going to pursue their conservation practices and invest all of their money if they could be violating a law, so you can see why they are very upset. Under the existing law, the EPA cannot even tell a farmer whether they need a permit, and they want to assume a lot more responsibility. It is kind of concerning considering that they cannot do their job right now.

Having to constantly apply for Federal permits just to farm their land would be unnecessarily burdensome to farmers, a waste of Federal resources, and an intrusion on State and local land use regulations. What about the EPA's assertion that its proposed rule simply clarifies its existing jurisdiction and restores it to what it used to be? The fact is that in the past, the EPA has attempted to claim nearly unlimited jurisdiction well beyond what the law says and well beyond even an expansive reading of the Federal Government's constitutional authority to regulate interstate commerce. However, those attempts were repeatedly struck down by our U.S. Supreme Court.

The Court decisions in 2001 and 2006 made very clear that the Federal Government does not have unlimited authority over all bodies of water but left the precise division between State and Federal or local jurisdictions somewhat unclear.

In response, the U.S. Army Corps of Engineers and the EPA issued guidance in December 2008 in an attempt to comply with the Supreme Court's rulings but did not engage in any formal rulemaking. Significantly, legislation was routinely proposed in Congress by those who wanted to push aside the Supreme Court rulings and give the EPA unlimited jurisdiction, but it never garnered enough support.

While legislation would not have resolved the constitutional limitations to the EPA's authority, it is important to know Congress passed on several opportunities to amend the Clean Water Act to expand Federal jurisdiction.

Nevertheless, in April 2011, the Obama administration proposed to replace the existing guidance with revised guidance that provided a very expansive reading of Federal authority, leaving very little land under State and local control.

This unilateral reassertion of expansive authority--in defiance of the other two branches of government--was made even more egregious by being proposed through guidance outside of the formal rulemaking process. Fortunately, the outcry from the Republican Congress against this power grab caused the administration to scrap guidance and pursue a formal rule with public comment.

I do believe we need clarity about what is and is not covered by the Clean Water Act, and particularly its permitting process, and that a formal rule with public comments is the best route.

However, the proposed rule that was formally published in April of 2014 once again asserted an extremely expansive view of Federal authority. This would increase the Federal Government's jurisdiction to regulate waters that had previously been the sole jurisdiction of States and local governments. Moreover, rather than clarifying points of uncertainty remaining from original guidance, court decisions, and precedents, the proposed rule would create a whole new definition of waters of the United States that opens new areas of uncertainty and confusion.

Rather than fixing the problem, this rule would make it much worse. It would lead to another round of court cases and overwhelm the Federal agencies with requests for jurisdictional determinations, diverting scarce Federal resources away from enforcement in more critical areas.

The EPA and the Corps should withdraw the proposed rule and work collaboratively with the States and other stakeholders to craft a sensible rule that will ensure clean water and provide much needed clarity about the scope of the Federal Clean Water Act jurisdiction.

Mr. President, Members of the Senate, in a few hours, maybe within this day or tomorrow, the Senate will be voting on several nominees to be district judges. I come to the floor to speak about one of these, Stephen Bough, of Missouri, for a seat on the District Court of the Western District of Missouri.

As I do with every nominee, I thoroughly examined Mr. Bough's record with an eye at giving him and others the benefit of the doubt if problematic issues arose. After full consideration of that record, I am regrettably unable to support this nominee. There are just too many data points--red flags, if you will--which tell me that Mr. Bough doesn't have what it takes to serve in a lifetime appointment on the Missouri District Court.

These red flags all relate to one troubling question the nominee's record raises: whether Mr. Bough has the temperament to be a Federal judge. I have come to the conclusion that he doesn't have that type of temperament. So I would explain my conclusion.

First, there is the issue of this nominee's professional conduct. A specific incident from last year demonstrates how Mr. Bough has engaged in what I

believe to be unethical behavior that precludes him from service on a Federal bench.

Last October, a member of the Mississippi bar drew my attention to the nominee's participation in a civil case in Federal District Court. The presiding judge on that case was the nominee's former employer, Senior District Judge Scott O. Wright.

About a week before the nominee signed on to the case, the plaintiff's attorney asked the court to transfer the case to another judge. Judge Wright denied that motion the next day. Then, just 1 week later, the nominee entered his appearance in the case. Mere hours after that, Judge Wright recused himself without any motion from the parties.

Now why did Judge Wright do that? Well, when Mr. Bough joined the case, he created a conflict of interest with Judge Wright. You see, Mr. Bough was Judge Wright's law clerk and remains his close personal friend today. In fact, Judge Wright had added the nominee to his personal conflicts list in January 2006, and Mr. Bough was well aware that he was on the conflicts list. So Mr. Bough knew that by joining the case Judge Wright was guaranteed to recuse himself--and that is exactly what the plaintiffs tried unsuccessfully to do just 1 week before Mr. Bough signed on and forced that recusal by creating the conflict with the judge.

Now we can reasonably ask, why is this significant? Well, what the nominee did here is known as judge shopping. It is an unethical litigation practice that has been strongly criticized by courts throughout the country. Essentially, it is when a lawyer knowingly creates a conflict with a judge in order to get the judge kicked off a case and replaced with a new and perhaps more favorable judge. That is the shopping part.

The Michigan Supreme Court has explained that judge shopping ``exposes the legal profession and the courts to contempt and ridicule.'' The Fifth Circuit calls judge shopping ``sheer manipulation of the justice system.'' Another Federal court has noted that the practice is ``universally condemned.''

This isn't the kind of professional conduct we can accept in a nominee to the Federal bench.

I gave Mr. Bough several opportunities to explain his conduct in questions for the record that I submitted to him. What I learned from his responses was this: The nominee knew that by joining the case he created conflict requiring Judge Wright's recusal.

I also asked the nominee to provide our Judiciary Committee with the work he says he did while he was an attorney on that case. You see, I wanted to know whether the nominee joined the case in good faith to work and to do it for the client, or joined just to create a conflict with the judge.

Mr. Bough responded that he provided advice and edits on only three documents. I requested those documents twice, and I told the nominee to redact any content protected by attorney-client privilege. The nominee has refused to provide those documents to me. The nominee has not provided to me memorandums, billing records, or any other materials to support his claim that he actually was working on that case; nor did the nominee attend any depositions or other pretrial hearings in that case. He made no filings with the court.

In short, Mr. Bough has provided me with almost nothing to support his claim that he actually did substantial work on the case during the 7 months he represented the client.

It is for this reason and for the circumstances I have already described that I am led to believe that the nominee's entry of appearance was not in good faith. It looks to me like a textbook case of judge shopping.

But the judge shopping is only one of many red flags. Let me discuss another that gives me serious pause.

The nominee has been active in Democratic Party politics in the Kansas City area for a number of years. Now I want to make it very clear that I don't hold that against him. I have said frequently over the years that I never disqualify a judicial nominee just because he or she has been politically active. Instead, the issue for me is whether a nominee has shown that they can shift gears and put aside their previous political advocacy once they put on the judge's robe. This nominee's record makes it abundantly clear that he wouldn't be able to make the switch from political advocate to impartial arbiter of law.

I will give you an example. In recent years the nominee has written a number of blogs and those posts have been about national politics. I have read his posts. I would say some are of a stridently political nature. Those don't bother me. Others though are simply too crude and sexist for me to quote. I challenge any Democrat who is voting for this nominee to read those blogs aloud to the public. I am confident none of my colleagues will do that. So I will just say that the sheer coarseness of those posts led me and other members of our Judiciary Committee to question whether Mr. Bough has a temperament suited to the lifetime judicial service.

Unfortunately it is not just the blog posts that make me ask that question. The nominee has shown in other contexts that he is first and foremost a political operative rather than a zealous advocate for a client or officer of the court. For example, Mr. Bough has lodged two obviously frivolous and abusive complaints with the Federal Elections Commission against a congressional candidate whom he opposed ideologically. In 2008 the Commission dismissed the first of these complaints in a brief opinion. But in 2012, Mr. Bough redoubled his efforts and filed a second 93-page complaint against the same candidate. This time the Commission responded with a lengthy and meticulous opinion that is striking in its strong language dismissing each of Mr. Bough's allegations.

The Commission criticized Mr. Bough's allegations as ``vague and speculative'' and said any violation which may have occurred was so minor as to not merit consideration. The opinion concluded that Mr. Bough's complaint had no basis for its allegations and was without merit. So the bottom line is that the nominee was using a government agency as a tool to harass a political opponent.

As I said earlier, that is behavior indicative of a political operative, someone who is not going to be able to put it all aside and consider cases objectively once he becomes a judge.

From time to time some of my colleagues on the Judiciary Committee have commented that the best evidence for the type of judge a nominee will be is the type of lawyer they have been. So I think there is a lot of wisdom in that view. With this nominee we know what kind of lawyer he has been, defending an unsavory client or representing an unpopular cause is one thing; we expect lawyers to do that--our system in fact demands that they do that--but acting as a political operative is an entirely different matter, and that is the kind of lawyer this nominee's record shows him to have been: a lawyer steeped in bare- knuckled political combat.

I said at the beginning of this statement that I am inclined to give nominees the benefit of the doubt when I come across something in their record that raises my eyebrows. I probably would have done that with this nominee, too, if there had been just an isolated issue or a noncharacteristic lapse in judgment. But that is not what we have here with Mr. Bough. Not only do we have unethical judge shopping, to that we have to add a number of crass, sexist, and insulting blog posts, and to that we also add a pair of frivolous complaints that abused the jurisdiction of a government agency in order to harass a political opponent.

There are too many red flags for me to support this nominee.

I yield the floor and suggest the absence of a quorum.

Madam President, I wish to clarify my understanding of the following report language included with H.R. 83, the Omnibus Appropriations Act:

The Secretary is directed to operate the marketing

assistance loan program in a way that encourages redemption

and minimizes forfeitures of loan commodities to the Federal

government, and enables the orderly marketing of loan

commodities throughout the year. Further, the Secretary shall

ensure that the marketing assistance loan program remains a

viable tool for all producers to use in marketing loan

commodities freely and competitively.

The Senate Agriculture Committee has confirmed this language simply intends to encourage USDA to better inform farmers of the status of any marketing loan gains they may receive during a marketing year for eligible commodities.

Furthermore, it was also conveyed by minority staff of the Senate Agriculture Committee that the referenced language in no way seeks to change implementation or enforcement of Section 1603 of the Agricultural Act of 2014.

Madam President, I rise to correct the Record on the claim that we typically confirm judges during a lameduck session. However, we do confirm judges during a lameduck if those judges were reported to the floor before the election. What we typically don't do is report judges out of committee during a lameduck and then also confirm them that same year, and that is what the majority is attempting to do here, and, of course, I object.

We need to follow precedent on these nominees. I will use 12 years as an example to illustrate what really happened.

In 2002, 20 judges were confirmed during the lameduck, but 18 of those judges had been reported out of committee before the midterm election. Only two of those judges were reported during the lameduck, and that was because these two judges waited for more than a year for a hearing.

In 2004, four judges were confirmed during the lameduck session, but none were reported out during that lameduck session.

In 2006, one judge was confirmed, but again, that judge was not reported out of committee during the lameduck session.

In 2008, there were no confirmations in the lameduck session.

In 2010, again, no judges were confirmed, but that year 15 judges were reported out of committee during the lameduck and every one of those 15 judges was returned to the White House.

Finally, in 2012, no judges were confirmed. That year, again, five judges

were reported out of committee during the lameduck, but all five were returned to the White House. That is the raw data.

The data confirms that since 2002, with only two exceptions for special circumstances, no judges have been reported out and confirmed during the lameduck session. The reason is simple. It gives our newly elected Senators the opportunity to have their voices heard, and that is what this is all about. That is the reason the judicial nominees, which are lifetime appointments, are typically returned to the President if they come out of committee during a lameduck session. It gives the new Members an opportunity to have their voices heard.

I am raising this objection today, although I know we are going to proceed, to protect the prerogatives of newly elected Members. Frankly, I am disappointed that the Members are not willing to stand up and protect those rights and prerogatives. I believe I have a pretty good reputation for working across the aisle on a lot of issues, and I expect that somebody would realize that next year these people would get a fair hearing just as they did before they were reported out of committee.

I yield the floor.

Mr. President, my colleagues who are waiting to speak to honor Senator Harkin, I am not going to take the amount of time I did on his birthday. I want to tell my colleagues that what I said on his birthday, on November 19, I probably should have waited and said today.

But I want to speak about our working relationship, and I want Senator Harkin to know that I have enjoyed my working relationship with him, together working for Iowa. I compliment him on the many accomplishments he has made. I consider him a friend. And as he goes back to Iowa, we will maintain that friendship, I am sure.

I would ask my colleagues if they would think about looking at what I said before on his birthday, because I am not going to repeat that here. But I think we ought to recognize that Senator Harkin worked hard up to his last day in the United States Senate, because one of his works over the last 25 years was on inhumane labor issues around the world, and he traveled to Oslo very recently to honor a person who received the Nobel Peace Prize for that crusade, as well as all the good work that Senator Harkin has done on it. And probably that person received the award because of Senator Harkin so long suggesting that the individual deserved that attention.

I am going to be very brief today, since my prior remarks outlined our friendship and his record in some detail. It is in the Congressional Record for posterity.

Senator Harkin and I have been a duo from our home State of Iowa for a long period of time. His voice is familiar. So is his point of view, so is his work ethic for the people of Iowa.

He has been a champion for individuals with disability, for the elderly, for early childhood education, nutrition, and wellness; for conservation, renewable energy, and the environment. We could go on and on about his passion for these causes, and many others.

Senator Harkin's legislative accomplishments are numerous. He leaves a lasting body of work that improves the quality of life for people who don't always have a high profile in the Halls of Congress.

One of Senator Harkin's greatest legacies is his ability to translate his drive and passion into legislative accomplishments. As the saying goes: He doesn't just talk the talk, he walks the walk.

Senator Tom Harkin lives and breathes the causes important to him, and the United States and Americans have a better quality of life because of it.

It will be a new era when the Senate doesn't see him rising to speak in his characteristic fiery delivery. And it may not have been so fiery today, but he did speak with emotion about the things he believes in.

I am grateful for his friendship and his long service to the people of Iowa and the Nation. While I will miss him around the Capitol, I am confident I will see him at home in Iowa. Senator Harkin is not one to turn off his enthusiasm for important issues, and I feel sure--and he has already told us today--he will continue his contribution to public service wherever and whenever the spirit moves him. And we know by his statement today it is already moving him. He has plans for the future to continue these crusades.

With that in mind, I will say so long rather than goodbye. Thank you.

I yield the floor.

Madam President, I have said before on the Senate floor that the proposed Environmental Protection Agency regulations to limit carbon dioxide are an example among far too many of Executive overreach by this administration.

Anyone who knows the history of the Clean Air Act--and I was here for the last major revision in 1990--or who has read the text of that law knows it was never intended to address greenhouse gases or climate change.

The Clean Air Act is designed to address traditional pollutants that have a direct impact on human health and the environment. However, when Congress declined to pass legislation supported by President Obama that would have created a cap-and-trade system targeted at greenhouse gases, the President gave a speech saying he would act on his own. In trying to regulate greenhouse gases under the Clean Air Act, which was not designed for that purpose, the EPA had to fit a square peg in a round hole.

As a result, when a number of key provisions in the Clean Air Act didn't say what the EPA would like them to say, the EPA simply reinterpreted those provisions to say something different or ignored them. In effect, the EPA was unconstitutionally rewriting a law passed by the Congress.

We all know what article I, section 1 of the U.S. Constitution says: ``All legislative Powers herein granted shall be vested in a Congress of the United States . . . ''

Regardless of where you stand on climate change, we ought to be able to agree that it is not appropriate for the EPA or, for that matter, any administrative agency to twist the law passed by Congress to mean something other than what it says. This isn't a partisan position, and you don't have to take my word for it. Just listen to what President Obama's Harvard professor, renowned liberal constitutional scholar Lawrence Tribe, has written:

The defects in the Proposed Rule transcend political

affiliation and policy positions and cut across partisan

lines . . .

Continuing:

The central principle at stake is a rule of law--the basic

premise that EPA must comply with fundamental statutory and

constitutional requirements in carrying out its mission.

The Proposed Rule should be withdrawn. It is a remarkable

example of executive overreach and an administrative agency's

assertion of power beyond its statutory authority.

Indeed, the Proposed Rule raises serious constitutional

questions.

In addition to his reputation as one of the country's most prominent constitutional scholars, Professor Tribe is also a long-time Democratic Party activist. In fact, he served as a judicial adviser to President Obama's 2008 Presidential campaign, briefly worked in his administration, and has been a very vocal supporter of the President. When Professor Tribe says the Obama administration has exceeded its authority, you can take it to the bank.

I should also add, in response to concerns that the EPA regulations are not a legitimate or appropriate response to climate change, I often hear that at least EPA is doing something. Well, aside from the fact that regulatory approach is not legally justified, it is also ineffective.

As Professor Tribe points out on his treatise in this matter:

The Regulatory Impact Analysis (RIA) for the Proposed Rule

states that the impact of ``reduced climate effects'' has

been ``monetized'' but not ``quantified.'' In other words,

EPA does not claim that the Proposed Rule would affect the

climate. The mismatch and lack of social benefit distinguish

the Proposed Rule from other actions by EPA under the Clean

Air Act.

This isn't news. President Obama's first EPA Administrator, Lisa Jackson, confirmed in testimony before a Senate committee that: ``U.S. action alone will not impact world CO2 levels.''

So these regulations will have no measurable environmental benefit, but will have tremendous costs, particularly for the Midwest, given our energy mix.

The EPA rules are all pain and no gain.

This is not an argument about environmental policy. I am proud to be a leading advocate for renewable energy, and I believe there is room for some bipartisan agreement about diversifying our Nation's energy sources.

However, I want you all to know that I agree with Professor Tribe that regardless of the underlying policy goals, the rule of law must be respected and the proposed rule should be withdrawn. I hope President Obama will learn from his former Harvard professor and end with the President of the United States doing the right thing.

I yield the floor.

Mr. President, this week it seems that the Senate is finally ready to take up and pass a tax extenders bill. Congress' procrastination on tax extenders has been causing a lot of headaches and indigestion to many of my constituents back home in Iowa.

Small business owners and farmers want to know whether the enhanced expensing rules under section 179 will be extended so that they can invest in new machinery. Retirees want to know whether they can make a charitable donation from their IRA to meet their required minimum distribution. The renewable energy sector wants to know what investments they should make to increase production.

The Senate could have made strides towards answering these questions just this past spring. The Finance Committee acted in a bipartisan fashion to report an extenders package to the floor that would have extended all expiring provisions for 2 years. By all accounts, this package could have been passed by the Senate with broad support on both sides of the aisle.

Unfortunately, movement of this package in the Senate stalled in May due to procedural maneuvering on the Senate floor. That maneuvering was meant to prevent votes on all amendments--even those with broad, bipartisan support. With the Senate failing to take action, the hopes of getting the extenders done in a timely fashion faded last spring.

However, there were high hopes that a bipartisan deal could be worked out with the House that could provide individuals and businesses much- needed tax certainty. Before Thanksgiving, House and Senate negotiators were making real headway towards a bipartisan agreement that would have extended most provisions for 2 years and made several provisions permanent. The President then thwarted negotiations by threatening to veto that package before it was even finalized.

Why the President would threaten to veto a package that, by all accounts, recognized bipartisan priorities as well as priorities of the administration is beyond me. The President's stated complaint is that the deal was geared too heavily toward business. From an administration that has regularly been advocating business-only tax reform, this complaint rings hollow.

However, all of the business provisions that would have been made permanent under the proposed deal have had strong support from both sides of the aisle here in the Senate as well as from the White House. For instance, the President's fiscal package that was in the 2015 budget calls for both the research and development tax credit and the enhanced expensing rules under Section 179 to be made permanent.

The bipartisan deal would have accomplished this. The proposed deal also

included priorities specific to President Obama and many of my Democratic colleagues. For instance, the American opportunity tax credit enacted as part of the President's 2009 stimulus bill would have been made permanent. The President's other named priorities were the enhanced refundable child tax credit and the earned-income tax credit. But it was the President's own actions on immigration--using presidential edict--that made their inclusion a very tough sell. Many on my side of the aisle have long had concerns about fraud and abuse in both of these credits. The President's Executive action only served to enhance these concerns and added fuel to the fire by eroding established policy that prohibits undocumented immigrants from receiving their earned-income credit.

The President may have a phone and a pen. He says he has it, and it seems as if he is always using it. But the last time I checked, Congress is still a coequal branch of government under the Constitution. When the President acts unilaterally, it should not surprise him when Congress responds.

So it is true that the deal did not include everything the President wanted, but it didn't include everything Republicans wanted either. Nobody ever gets everything they want in bipartisan negotiations. The point of negotiating is to get something the majority of us can support.

By cutting off negotiations, the White House has left us with voting on something that is barely better than nothing for individuals and industries. This includes industries the President claims to be a priority of his, such as the renewable energy sector, which is very much a high priority for me.

Forward policy guidance is critically important to the renewable energy sector. The proposed deal would have provided certainty to wind energy through a multiyear phaseout that would have provided a glidepath to self-sustainability. Other renewable provisions would have been extended for 2 years. Instead, Congress is now faced with settling for a 1-year retroactive extension that fails to provide any meaningful incentive for the further development of renewable energy.

It also fails to provide certainty to other businesses and to individuals as well. These are provisions that will once again expire almost as soon as they go into law. I think we all agree that making tax law 1 year at a time in retroactive fashion is not the way to do business. Yet that is the reality we currently face because of this administration's refusal to compromise.

While I would prefer longer extensions of these provisions, that is no longer a viable option as we close down this Congress. As a result, I intend to support the House package. My only hope is that in the new Congress we can make strides toward putting some certainty back into the Tax Code.

I yield the floor.

Mr. President, I would like to take this time to honor an extraordinary Iowa teacher who has had a positive impact on a great many students. Ms. Clemencia Spizzirri was recently announced as the 2015 Iowa Teacher of the Year. This award honors the great work she has done as a foreign language teacher at Merrill Middle School in Des Moines, IA.

Ms. Spizzirri has been teaching Spanish to eager young minds at Merrill Middle School for 5 years. Despite her relatively short time there, her profound impact is evident. The high praise she receives from her students, colleagues, and community members are a testament to the work ethic and passion she displays in her classroom every schoolday.

As an immigrant herself, Ms. Spizzirri embodies the importance of a broad-based education that helps students understand the world beyond their own country. Born in Quito, Ecuador's capital city, Ms. Clemencia was the youngest of seven children. She learned quickly that success was nearly impossible without a quality education. This drove her to become a teacher. She witnessed firsthand the struggles that accompany poverty and knew she could make a difference through teaching. She started her career teaching English in Quito. When the conditions in her country began to worsen, she obtained a visa and moved to the United States. After immigrating to this country, Ms. Spizzirri received a bachelor's degree in New York. She then moved to Des Moines, IA, where she received her master's degree from Drake University.

Ms. Spizzirri attributes her passion for educating young minds to unfortunate circumstances she has witnessed in her own life. This passion ensures a quality education for all her students and contributes well-rounded citizens to the community. Great teachers are an invaluable resource to all of our communities and Ms. Spizzirri deserves nothing but praise for her tremendous work. I thank Ms. Spizzirri for her service to the people of her community and wish her nothing but the best in her future school years and beyond.

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

Mr. President, I come to the floor today to talk about ``Zero Dark Thirty''--not the movie but a report on the movie. The report was supposed to tell us how the movie's producers obtained top- secret information from the Federal Government, but the report never took us there.

The Department of Defense inspector general stumbled and fell and lost sight of the goal and the need for independence. People were exposed to harm, the taxpayers' money got wasted, and alleged misconduct by top officials was shielded by a policy that may have been abused. Bureaucratic bungling caused confusion, turmoil, and dissent. For certain, the whole thing was a fiasco.

The ``Zero Dark Thirty'' report was driven by the hemorrhage of leaks of highly classified information by senior administration officials after the Osama bin Laden raid. It was requested by the chairman of the House oversight committee, Congressman Peter King--a very good Congressman, very good on oversight.

He read a column in the New York Times which indicated that Hollywood filmmakers ``received top-level access to the most classified mission in history.'' Congressman King was concerned that those disclosures could undermine our ability to successfully conduct covert operations in the future, so in August 2011 Congressman King asked the inspectors general of the Central Intelligence Agency and the Department of Defense to answer five simple questions. My focus during these remarks will be on the Department of Defense IG's investigation.

I became involved, as you might expect, after whistleblowers contacted my office in December 2012 alleging that Acting and Deputy Inspector General Lynne Halbrooks was sitting on Congressman King's report. They alleged that she--Ms. Halbrooks--was suppressing the report to, No. 1, protect her boss, Secretary of Defense Panetta, and other senior officials from disciplinary action or prosecution, and No. 2, to further her candidacy to be the next inspector general.

Her nomination was vetted while the investigation was in progress. The convergence of those potential conflicts of interest grabbed my attention. They needed scrutiny. The independence of the Office of Inspector General could have been jeopardized. So my staff started digging. They interviewed key witnesses and examined documents provided by whistleblowers and official sources. Here is what we have found:

On December 16, 2011, the Department of Defense Office of Inspector General announced that its investigation would begin immediately and that it was to be coordinated with the CIA inspector general. It would be conducted by the Office of Intelligence and Special Program Assessments headed by a Mr. James Ives. That investigation took a year.

A draft report was submitted for classification review on October 24, 2012. The allegations were substantiated. No. 1, senior officials, including Defense Secretary Leon Panetta, his chief of staff Jeremy Bash, and Under Secretary of Intelligence Michael Vickers, allegedly made unauthorized disclosures of highly classified information on that raid. No. 2, these alleged disclosures may have placed special operations personnel and their families in harm's way.

One month later the draft report containing those allegations was declared unclassified. A coordination package was then developed. It included a publicly releasable version, talking points for reporters, and transmittal memos to the Defense Secretary and Chairman King.

This package was circulated internally for review and clearance. The

next and final step was submission to Deputy IG Halbrooks as a request for release. Now, by normal standards, the report was ready for issue. However, there was a major foul-up--a real show stopper. The review process was bungled from start to finish.

All references to unauthorized disclosures of highly classified information by senior officials had to be stripped from the report before it could be published. This draconian measure, which gutted the report and made it unfit for publication, was mandated by a longstanding department policy. This long standing department policy was known only to the two leaders of the investigation, Deputies Halbrooks and Ives. It was their responsibility to execute it at the front end of the review.

I want to make one point crystal clear. I don't support the policy of censoring reports. It is a bad policy that needs to be changed. My beef, though, is if that is the policy, then it should have been followed, but it wasn't followed until the last possible moment.

To make matters far worse, both Ives and Halbrooks failed to communicate the policy mandate to those who needed the information to ready the report for publication. Halbrooks and Ives kept the investigative team in the dark--like a bunch of mushrooms. So they had the mistaken notion the uncensored report was final and ready to go. This caused a great deal of turmoil.

Two factors set the stage for the bungled review process. First, the official assigned to lead the project, Mr. Ives, lacked relevant professional experience, and top management failed to actively supervise his day-to-day progress on the report to ensure that he followed established protocols. He needed guidance navigating his way through an unfamiliar process but received no guidance. Plus, his appointment was limited to 4 months on a project that took 2 years.

This was a recipe for disaster.

Second, the problem was compounded by a failure to coordinate with the CIA inspector general before the investigation got rolling. Effective coordination was essential. Congressman King's request crossed jurisdictional lines between two powerful agencies, the CIA and the Department of Defense.

The CIA's inspector general was ultimately responsible for the alleged misconduct because it occurred while Panetta and his Chief of Staff, Jeremy Bash, were CIA employees. The fact that they had moved to the Pentagon after the investigation started was irrelevant.

This was a no-brainer, but for inexplicable reasons the Department of Defense IG tackled the Panetta-Bash allegations. This was an irresponsible and wasteful action. It took over a year of groping down blind alleys for the reality to finally sink in. By then it was way too late.

The failure of the two agencies to coordinate effectively right up front had disastrous consequence. Just as the report was reaching critical mass in late 2012, the Panetta case had to be referred back to the CIA IG for investigation. Panetta's alleged misconduct was the heart and soul of the report.

It was suddenly gone, leaving the report hollow and empty. How could all this senseless blundering happen unless it was part of a plan to slow-roll or even torpedo the report. The blundering was coupled with unexplained delays.

Between mid-December and early January, Deputy Ives finally completed the mandated substantial review, which gutted the report. However, it did not regain forward motion until after Secretary Panetta retired February 27, 2013.

Halbrooks claims she did not receive or see a draft until March 25, 2013. Aside from a few minor edits, there is no record of significant edits between Mr. Ives' review and publication of the report. The 3- month delay in reaching her desk and subsequent delays until June remain unexplained and unaccounted for.

These facts create the perception that the review process was slowed by Halbrooks and others at her direction to shield Department of Defense officials from scrutiny. She claims her nomination was dead at that point and no longer a potential conflict, but she offers no evidence to back it up.

Moreover, this timeline fits with other relevant information. According to a whistleblower, she stated repeatedly that the report would not be issued until Panetta stepped down--and that is exactly what happened.

Finally, the bungled review process may have triggered whistleblowing. Whistleblowers thought the report was about to be issued in late 2012 when media talking points were circulated. When that didn't happen, they perceived a coverup. They contacted my office and then they leaked the report to the Project on Government Oversight, which is normally referred to around this town as POGO.

The uncensored version of the report appeared on POGO's Web site on June 4, 2013. Ten days later, the IG's office reacted by finally issuing a censured version of the report. If POGO had not acted, the report might never have seen the light of day. It might have been pigeonholed for good.

Immediately after the initial report was issued, Halbrooks launched a hunt for the mole. She wanted to know who leaked the reports to POGO. Extensive interviews were conducted and 33,269 emails were examined, but the leaker was not found.

However, during questioning, Mr. Dan Meyer, the DOD OIG Director of Whistleblowing and Transparency, admitted to giving a copy of the report to Congress. He was one of the many OIG employees who mistakenly believed the uncensored version of the report circulated in late 2012 for final review and clearance was, indeed, final.

He thought it was ready to go out the door. As the Director of Whistleblowing and Transparency, maybe he just thought he was doing his job and being--as every government official ought to be--very transparent because the public's business ought to be public. Around this town, however, that is not always the case.

Mr. Meyer's admission triggered swift and decisive action. He was accused of making false statements, placing his security clearance in jeopardy. This action had the potential of destroying his career. Now, fortunately--and this doesn't happen very often around this town--the new inspector general at the Department of Defense, Jon Rymer, intervened in Mr. Meyer's behalf and blocked those efforts.

The case against Mr. Meyer was very flimsy, though his clearance is still hanging fire. In the end, Mr. Meyer bore the brunt of blame for the POGO leak. The principal targets of the investigation--Panetta, Vickers, and Bash--skated. Mr. Meyer exposed their alleged misconduct, and yet he got hammered. Justice was turned upside down.

What happened during the 22 months between Chairman King's request and June 2013, when the report was finally issued, is a tangled bureaucratic mess. Despite exhaustive questioning, a satisfactory explanation hasn't been given. What I have presented today is just a brief summary of the facts and analysis laid out in greater detail in a staff report that I released today.

In that report my staff identified potential red flags pertaining to the way the Office of the Inspector General handled the ``Zero Dark Thirty'' report. These were boiled down to nine conclusions that fell into four broad categories: No. 1, impairment of IG independence and lack of commitment to the spirit and intent of the IG act; No. 2, weak leadership; No. 3, mismanagement; and No. 4, waste of time and taxpayers' money.

The staff findings suggest that some corrective action may be justified, including an appropriate measure of accountability. If misconduct and/or mismanagement occurred, then Deputies Lynne Halbrooks and James Ives, both of whom led the ``Zero Dark Thirty'' project, would appear to be chiefly responsible for whatever happened.

It is also recommended that the longstanding department policy--which earlier I told you I disagreed with--of censoring sensitive information from reports not be applied to cases involving alleged misconduct by top officials because agency heads and their senior deputies should be held to a higher standard. They should be subjected to greater public scrutiny. This policy needs review and possible modification.

When all is said and done, the proof is, of course, in the pudding, as they say. What good came from this effort? Its true value is reflected in the end product, the highly sanitized report that was finally issued June 14, 2013, 6 months after it was finished. I believe that it is a second-class piece of work

that is not worth the paper that it is written on.

Even Halbrooks seems to agree that the report's face value is close to zero. This is what she said during an interview with my staff. She said that once Ives removed all the derogatory information on Panetta and Vickers, the report was no longer interesting or important to me-- meaning her--and it just dropped off my radar screen--and words to that effect. She was talking about the report issued June 14, 2013.

Halbrooks is correct about the value of the report, but she is dead wrong about her responsibility as IG for the unfinished report. At that point, she appears to have lost sight of her core mission as the inspector general.

The report was about alleged misconduct by her boss, the Secretary of Defense. It was requested by the chairman of the House oversight committee, Mr. King.

She had a solemn duty to put it back on her radar screen and keep it there--front and center--until it was fixed. Once it was ready and up to standard, she should have presented it proudly and enthusiastically to the Congress and the Secretary of Defense--and done it properly and in restricted format, if necessary.

This project was an unmitigated disaster spawned by a series of top- level missteps and blunders. All the wasted energy and blundering produced nothing better than internal confusion, turmoil, dissent, and more alleged misconduct.

Two years's worth of hard work and money was more or less poured down a rat hole. To make matters far worse, a valued employee was threatened with termination. This person has unique and unparalleled knowledge of whistleblowing and a rock-solid commitment to fair treatment of whistleblowers.

Were it not for Inspector General Rymer, he would be out on the street this very day. Halbrooks' search for the mole was misguided.

The inspector general's office needs strong leadership that has the courage to tell it like it is and to report wrongdoing promptly to agency heads and even Congress with recommendations for corrective action. When the Secretary and the Under Secretary stand accused of misconduct, as in this case, the IG should double down and ensure public accountability. Thus far in this matter there has been none because truth was hidden behind a questionable policy that may have been abused.

There is an excellent case in point from just a few years back. Deputy Secretary of Defense and CIA Director John Deutsch allegedly mishandled highly classified information and got hammered for doing so. He lost his security clearance for 6 years and came very close to prosecution. Unlike this case--the ``Zero Dark Thirty'' leaks--the John Deutsch matter was dealt with effectively and it was aired publicly.

The ``Zero Dark Thirty'' model was wasteful of the taxpayers' money, it was harmful to morale, and harmful to the perceived independence of the IG's office. It should be used as an educational tool to teach Office of Inspector General employees in any department of government how not to conduct investigations of alleged misconduct by senior officials.

I yield the floor.

I yield back our time.