Floor Statements

Mr. President, I ask for the yeas and nays.

I ask unanimous consent that the order for the quorum call be rescinded.

Just before our August recess, this body passed S. Res. 525.

I thank Senator Wyden, the vice chair of the Whistleblower Protection Caucus I am starting next year, for being an original cosponsor of the resolution.

S. Res. 525 recognized July 31 as National Whistleblower Appreciation Day. On that day way back in 1778, the Continental Congress passed the first whistleblower law in the United States. I would like to quote it:

Resolved,

That it is the duty of all persons in the service of the

United States . . . to give the earliest information to

Congress or other proper authority of any misconduct, frauds

or misdemeanors committed by any officers or persons in the

service of these states, which may come to their knowledge.

This resolution was passed by the Continental Congress in 1778 without a recorded dissent.

Then and now, Congress's control of the purse strings has given us an obligation to guard against wasteful and fraudulent spending.

On this past July 31, whistleblower groups met to honor some of our colleagues on the Hill for their support of whistleblowers who report waste or fraud. I was not able to be there because the House of Representatives Judiciary Committee held a hearing on oversight of the False Claims Act. I am always wary when I hear the biggest violators of a law hire people to talk about ``strengthening'' the False Claims Act. So at the House of Representatives, I had an opportunity to comment on a chamber of commerce release of a report on the False Claims Act. It claims the act ``plainly is not getting the job done'' since ``the government has recovered only $35 billion since 1987.'' The current number as of

today is actually $42 billion that has been recovered under the False Claims Act of 1986, and that surely is nothing to sneeze at--at least where I come from it is not.

The fact is that since 1986 no other law on the books has been more effective in battling fraud. Before the 1986 amendments, the False Claims Act only brought in about $40 million a year. At that rate it would have recovered only $1 billion in the past 25 years. So thanks to the 1986 amendments, it brought back 42 times as much.

Clearly, I say to the U.S. Chamber of Commerce, the False Claims Act is working, and it is working fantastically. The chamber's report says the law is ``ineffective at preventing fraud.'' Yet my staff have met with some of the authors of that chamber report, and I have to say to you that the chamber had no concrete proposals for preventing fraud more effectively than the False Claims Act.

Now, the chamber people meeting with my staff talked about ``a gold- standard compliance certification program,'' but to me and my staff it is just a pie-in-the-sky idea with no specifics. They told my staff, ``We deliberately left this vague.'' So that is the problem. They lack details on who would create the program, who would enforce the program. Basically, they lacked details about everything. But they want this Senate to believe that once this pipe dream is in place, it will magically increase the amount of taxpayer dollars the government recovers.

In exchange, the report proposes hefty concessions for its big corporate sponsors. For starters, they want to eliminate the use of exclusion or debarment. These happen to be some of the government's strongest tools in deterring fraud. The chamber report would require whistleblowers to report internally 180 days before any whistleblower can file a False Claims Act suit. Yet, in most corporations, reporting internally just puts a huge target on the back of the employee blowing the whistle, just as it does on the back of a Federal whistleblower within the Federal bureaucracy. We should trust whistleblowers to use their common sense to know the safest place to report. Internal reporting and a 6-month head start on retaliation before the whistleblower gets a chance to be heard in court is a recipe guaranteed to reduce disclosures of fraud.

I have long advocated companies developing strong internal compliance programs, so I see nothing wrong with having those compliance programs. However, having one of these programs is not a reason to get a ``get out of jail free'' pass. I am skeptical that companies will self-report violations. Certification of a compliance program will not turn up the cold hard facts on whether they do or do not self-report. Even when a corporation does come forward, the company line is never going to be the complete picture. That is why the False Claims Act incentivizes whistleblowers, and, in fact, it has worked.

Further, some corporations have actually been using compliance programs as a trap for muzzling whistleblowers. By making their compliance program an arm of their legal department, anything a whistleblower reports is protected as confidential information covered under the attorney-client privilege. Many corporations also require employees who provide tips to their compliance departments to then sign nondisclosure agreements. This has a major chilling effect on whistleblowers contemplating filing a False Claims Act suit. Whistleblowers brave enough to file then find themselves the subject of legal action claiming they have violated attorney-client privilege or nondisclosure agreements. Now, a very simple question: Is this how we ought to treat whistleblowers?

This report's recommendations contradict its assertion that the False Claims Act has failed by not recovering enough money. The report proposes to limit government recoveries across the board, regardless of participation in any compliance certification program. That makes no sense.

In the last 5 years the Federal Government has grown larger and larger and spending has gotten more and more out of control. The Federal Government now spends about $1 trillion in contracts and grants each year. Inspectors general, the Government Accountability Office, and congressional oversight committees simply have not been able to keep up. Whistleblowers using the False Claims Act have played a very key role in checking fraud and wasteful spending. Annual recoveries under the False Claims Act have increased dramatically in just the past 5 years. Last year the Justice Department recovered $2.6 billion in just health care fraud through the False Claims Act. The False Claims Act is clearly doing exactly what we intended it to do, and that is to recover taxpayers' money being lost to fraud.

State attorneys general around the country have used State false claims acts to successfully recover billions of dollars for their States. I will give some examples.

Last October--that is, October of 2013--then-Virginia attorney general Ken Cuccinelli recovered $37 million for the State of Virginia from a drug company that was inflating its prices to scam taxpayer dollars from Medicare. The next month, in 2013, Cuccinelli recovered $21 million in two health care fraud settlements with multinational pharmaceutical giant Johnson & Johnson, which was paying millions of dollars in kickbacks to the Nation's largest pharmacy. Yet, just days before Cuccinelli announced the settlements, Health and Human Services Secretary Kathleen Sebelius also made an announcement. She revealed that this administration did not intend to treat ObamaCare as a Federal health care program, exempting it from antikickback laws. Precisely because of the fraud opportunities under ObamaCare, one provision Congress added to the law made a violation of antikickback law an automatic violation of the False Claims Act. This administration has chosen to ignore that part of ObamaCare.

Congress must step forward and reiterate that ObamaCare is no less subject to the antikickback law and False Claims Act than other Federal health care programs. Congress should strongly consider strengthening the False Claims Act's connection with suspension and debarment. That would keep repeat offenders away from the taxpayer dollars they have defrauded in the first place.

This issue, then, is really one about law and order. If we really want to improve the False Claims Act--not go the direction of the U.S. Chamber of Commerce--we should make a judgment or settlement under the law result in an automatic review for suspension or debarment. That would capitalize on the success of the law while increasing its deterrent effect.

The False Claims Act has already provided a crucial check during a time of growing government and outofcontrol Federal spending. Whistleblowers have been the key to the government finding out about fraud when it happens. We have to do all we can to honor them for the patriotic service they provide to the taxpayers and protect them from those who resist the role they play.

Mr. President, I continue my objection to consideration of the nomination of Nani Coloretti to be the Deputy Secretary of the Department of Housing and Urban Development.

In keeping with my efforts to end secret holds, I have been very open about the reason I put a hold on this nomination. The Obama administration isn't giving me the same consideration.

In May, I found out about questionable hiring practices at the Financial Crimes Enforcement Network, known as FinCEN. FinCEN is an agency within the Treasury Department that collects and analyzes financial reports for law enforcement agencies to use in their money laundering investigations.

FinCEN has been hiring additional personnel to beef up its enforcement division. The problem occurred when the agency posted the job requirements but then disqualified candidates for a criterion that was never in the original job posting: a law degree.

This is illegal under Federal hiring guidelines.

I also learned that FinCEN rejected qualified veterans who applied for the positions. Veterans' preference doesn't guarantee veterans a job but it does give them extra consideration for jobs for which they are qualified.

The unemployment rate for post-9/11 veterans is significantly higher than

the rate for the general population. These men and women are extremely capable. They have an array of job skills to offer in the workplace.

It is inexcusable for FinCEN, or any other Federal agency, to reject qualified veterans who faithfully served our country.

The Office of Personnel Management already determined that the FinCEN hiring practices were illegal and referred the case to both the U.S. Office of Special Counsel and the Treasury Department's Inspector General. The investigations need to cover whether Treasury Department officials knew about the hiring problems and did nothing until OPM forced their hand. And if FinCEN tried to game the system to shortchange our Nation's veterans Congress needs to know. In addition, whoever is responsible must be held accountable.

To find out what happened, I requested all emails sent between the Treasury Department and FinCEN on this matter.

As the Treasury Assistant Secretary for Management, Ms. Coloretti oversees the Treasury's human resources department and may have known about the illegal hiring practices, or was at least in a position to know. If she did, she certainly shouldn't be rewarded with a promotion. However, regardless of her involvement, the Treasury Department needs to come clean.

As I said earlier, I have requested emails from the Treasury Department to help me get to the bottom of this. So far, I have received four emails.

Instead of open transparency, the Obama administration is once again obstructing access to the information I need to conduct proper congressional oversight.

The Treasury Department tried to convince me that no other relevant emails exist but I am not convinced. Their search was limited to only the 8 months when the vacancy announcements were open. This excluded any email communications that took place in preparation for posting the announcements or during 2014 when problems with the announcements were found. That is unacceptable. So I will continue my objection to consideration of Ms. Coloretti's nomination.

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

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

Mr. President, I rise to recognize National Rural Health Day. I would like to take a moment to recognize our rural health care providers and all they do for this country.

Approximately 62 million Americans live in rural areas and they depend on an ever-shrinking number of health care providers. Rural providers play a very important role in improving the health of their communities and supporting local economies.

I thank our rural providers--individuals, hospitals, and clinics--for all they do. Rural providers support a population that makes invaluable contributions to this country through food production, manufacturing, and other vital industries.

Yet more people in rural areas are living below the poverty line than their urban counterparts. Rural hospitals are struggling to continue providing care due to declining payments, many exacerbated by the Affordable Care

Act. The past few years have been marked by increasing rural hospital closures, with 27 hospitals shutting their doors in the past 2 years.

The trend is concerning and deserves attention as many more facilities and communities are at risk. Once a hospital is gone, the devastating impact on the community cannot be undone. The economic impact is unmistakable.

The typical, critical access hospital creates over 140 jobs in primary employment and $6.8 million in local wages while serving a population of over 14,000. When facilities close, the consequences of traveling great distances for medical care are much more than just mere inconvenience. The delays in obtaining care can mean the difference between life and death. According to the U.S. News & World Report, that was the case for an infant in Texas who choked on a grape and died after the only hospital in the county had closed just a few months before.

There are a number of similarly tragic stories, and they will continue to mount if we fail to take action.

In 1946, Congress recognized the importance of rural health care providers and worked to build the rural health care infrastructure that exists today. It is called the Hill-Burton Act. The country has changed dramatically since 1946 and thoughtful action to improve the distribution and capabilities of our rural health care system is overdue. We need to act now to support our rural providers and facilitate a responsible transition to a modernized health care system.

Rural America is facing what I would call an arbitrary attrition of providers. The hospital closures are a function of no specific design. It is all about balance sheets strained to the breaking point of continual payment cuts. It is not about where providers need to be to serve populations. We need to take a thoughtful look then at what the future of rural health care needs to be.

We need to be willing to consider bold steps to ensure that rural America has access to high-quality health care. Health care coverage, whether through private insurance, Medicare or Medicaid, without access to providers of that care is meaningless.

We need to put a stop to the arbitrary process now and work forward in designing a better, sustainable future for rural health care.

I close, once again, by thanking all of America's rural providers. I am committed to working with all stakeholders to transition to a better future and protect access to health care in America.

Tax Extenders

I would like to speak about the tax extenders bill that is being worked on between the House and the Senate in an informal conference and to explain why I am concerned about the direction it might be taking, particularly as it relates to alternative energy and as it relates to wind energy tax production credit.

Here we are in another lameduck session of Congress, working to finish the business we failed to complete the previous year or two.

One of those critical pieces of legislation that must be enacted is a tax extender bill. It seems as though nearly every year in recent memory we have put off the extension of expired tax provisions until the very last minute.

In 2012 revision provisions remained expired for an entire year before we finally extended them in January of 2013. Similarly, the previous extension of prior provisions did not occur until the middle of December.

Now, once again, we find ourselves heading into the month of December with tax extenders having been expired for nearly 11 months, and there is a lot of uncertainty that causes a slowdown to the economy when people don't know what the tax provisions are.

This is no way to do business. Such late action by Congress results in complications during filing season for taxpayers. That is a big problem for the IRS. We need to do something right now. It is almost too late to get tax preparers to know what to do for the next tax season. Obviously, tax season is unpleasant enough without our adding to it by failing to do our job in a timely fashion.

Once again, we have created a lot of headaches and uncertainty for individuals and businesses. This uncertainty harms investment and business growth; in other words, slowing the economy, as I previously said. This is bad for economic growth and does nothing to create the jobs that can come when we have more certainty for people who invest in capital and want to provide jobs.

The lapse of renewable energy incentives has also created a lot of uncertainty and slowed growth in the renewable energy. This only serves to hamper the strides made toward a viable, self-sustainable renewal energy sector.

It didn't have to be this way. The Senate Finance Committee, under the leadership of Chairman Wyden and Ranking Member Hatch, did its job. We marked up an extenders package in early April. The Senate never took up that package because the majority leader refused to allow Republicans to offer amendments. And it happens that even a couple of amendments that were going to be adopted had wide bipartisan support. Rather than consider and advance the Finance Committee bill, the majority leader shelved the extenders bill because of fear that Members of his party might have to take tough votes.

With the election behind us, it is now time to get to work and get the extenders bill done. I understand that negotiations are ongoing between the House and Senate on this issue. I am encouraged by reports of progress being made. However, I am concerned about rumors that some are working to leave out or shorten the extension of the wind energy tax credit.

I fought this issue in the Finance Committee when one of the Members on my side of the aisle tried to strike that provision. But we had a bipartisan vote of 18 to 5 to defeat that amendment that would have struck the wind production tax credit from the bill that is now before the Senate.

It seems as though opponents of wind energy have tried at every turn to undermine this industry, and so I am not surprised that we are at it again, even considering the 18-to-5 vote in the Finance Committee.

I agree the Tax Code has gotten too cluttered with too many special interest provisions. That is the reason many of us have been clamoring for tax reform for years now. But just because we haven't cleaned up the Tax Code in a very comprehensive way doesn't mean we should pull the rug out from under domestic renewable energy producers. Doing so would cost jobs, harm our economy, the environment, and our national security.

I am glad to defend the wind energy production tax credit and continue to defend it. In fact, I can tell you that 22 years ago, when I first got this passed through the Congress to become law, I didn't think it would become the big thing it is. But there is a tremendous amount of energy being generated today by wind energy. Wind energy supports tens of thousands of American jobs. It has spurred billions in private investment in the United States, and it displaces more expensive and more polluting sources of energy.

More than 70 percent of U.S. wind turbines value is now produced in the United States, compared to just 25 percent prior to 2005.

Once again, opponents of the renewable energy provisions want to have this debate in a vacuum. They disregard the many incentives and subsidies that exist for other sources of energy and are permanent law. For example, the 100-year-old oil and gas industry continues to benefit from tax preferences that aren't generally throughout the economy for all businesses but only benefit their industry.

These are not general business tax provisions--I want to say that again--they are specific to oil and gas business. A few examples: Expensing for intangible drilling costs, deductions for tertiary injectants, percentage depletion for oilwells, special amortization for geological costs.

I am not going to find fault with that, but I will find fault with people who justify that, yet take on wind energy. These are four tax preferences for a single energy resulting in the loss of more than $4 billion annually in tax revenue.

Nuclear energy is another great example. The first nuclear powerplant came online in the United States in 1958. That is 56 years ago. Nuclear receives special tax treatment for interest from decommissioning trust funds.

Congress created a production tax credit for this mature industry in 2005,

which is going to be available until 2020. Nuclear also benefits from Price-Anderson Federal liability insurance that Congress provided. That was supposed to be a temporary measure in 1958, but this temporary measure has been renewed through 2025. Nuclear energy has also received $74 billion of Federal research and development dollars since 1950.

Are those crony capitalist handouts? Well, nobody seems to be attacking them. Is it time to end the market distortions for nuclear power? Well, nobody is talking about that. But they are talking about wind energy.

We had a Cato study about nuclear energy that said:

In truth, nuclear power has never made economic sense and

exists purely as a creature of government.

People are saying that about wind energy, but I don't hear the same people saying it about nuclear power.

I don't understand the argument that repealing a subsidy for oil and gas or nuclear energy production is a tax increase like the accusation against wind, while repealing an incentive on alternative or renewable energy is not a tax increase. So it is not intellectually honest.

As I said before, we have had wind incentives since 1992, and I am the father of that. I suppose now, after 22 years, you might say I am the grandfather of it. I know it won't go on forever. In fact, it was never meant to go on forever. And people in the wind energy even admit that today and talk about phaseouts.

I am happy to discuss a responsible multiyear phaseout of that wind tax credit. In 2012, the wind energy was the only industry to put forward such a phaseout plan. But any phaseout must be done in the context of comprehensive tax reform where all energy tax provisions are on the table, not just wind solely. And it should be done responsibly, over a few years, to provide certainty and ensure a viable industry.

It is time to put an end to the annual kabuki dance that is tax extenders. Good tax policy requires certainty that can only come from long-term predictable tax law. Businesses need the certainty in the Tax Code so they can plan and invest accordingly.

Moreover, taxpayers deserve to know that the Tax Code is not just being used as another way to dole out funds to politically favored groups. However, the only sound way to reach this goal is through comprehensive tax reform.

I agree there are provisions in extenders that ultimately should be left on the cutting room floor. But it is in tax reform--comprehensive tax reform--where we should consider the relative merits of individual provisions. Targeting certain provisions for elimination now makes little sense for those of us who want to reduce tax rates as much as possible.

Tax reform provides an opportunity to use realistic baselines that will allow the revenue generated from cutting back provisions to be used to pay for reductions in individual and corporate tax rates.

I look forward to working with my colleagues in the future to enact tax reform and put an end to the headaches and uncertainty created by the regular expiration of tax provisions. Right now our focus must be on extending current expired or expiring provisions to give us room to work towards that goal.

It is my hope that we can move quickly to reach a bipartisan, bicameral agreement that can quickly be enacted and that includes the wind energy tax provisions. Taxpayers have already waited too long.

What really gripes me about this whole argument is that people say they are for all of the above. I am for all of the above, I can say. You know, that means fossil fuels, that means all sorts of alternative energy, it probably includes conservation, and it includes nuclear. But when I see the people fighting the wind energy tax credit coming from petroleum and natural gas and from coal, I think of these people who say they are for all of the above, they are really for all of the below but for none of the above. And that is wrong and inconsistent.

I want a consistent, uniform tax policy for all forms of energy being extended right now.

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

Mr. President, I rise today to celebrate the 75th birthday of my friend and longtime colleague from our home State of Iowa, Senator Tom Harkin.

As the Presiding Officer knows, Senator Harkin will be retiring from public office in a few weeks. At the end of the 113th Congress, Senator Harkin will then close a chapter on public service that spans more than a half century, including four decades in Congress. He also served 27 years in the U.S. Navy and U.S. Naval Reserves, 10 years in the House of Representatives, and 30 years here in the U.S. Senate.

Now, I think anybody looking at that would say that is a remarkable and distinguished record of public service. After 40 years of representing Iowans in Congress, my friend Tom soon will leave behind the Halls of the U.S. Capitol. He also will leave behind a legacy of fiery floor speeches, passionately delivered on behalf of individuals with disabilities, also for Iowa farmers, also for the elderly, also for child laborers, and for many causes that he championed such as early childhood education, nutrition and wellness, conservation, renewable energy and the environment, and probably lots of others. But those are things everybody knows that he has worked hard on.

Throughout the years Tom and I have served side-by-side in Washington for the good of our home State. For three terms we worked together in the U.S. House of Representatives. It was here in the Senate our shared commitment to give rural America a voice at the policymaking table was sown, and for many years we worked together on the Senate agriculture committee, looking out for the millions of Americans who choose to work and earn a living in rural America. We worked together to advocate for rural infrastructure and investment, access to health care, housing, technology, and transportation.

For the last three decades we have served alongside one another in this distinguished body, the U.S. Senate, an institution that both of us hold near and dear to our hearts. Although some of our silver- tongued critics over the years may have ascribed Tom's views as those of a bleeding-heart liberal or mine mischaracterized as that of a cold- hearted conservative, we both, Tom and I, know that our hearts have always been in the right place.

Neither of us was born with a silver spoon in our mouth and we learned early on to appreciate the work ethic of our parents and grandparents. Each of us raised our families with the hopes that our children and grandchildren would achieve the promise of America's prosperity and grow up to enjoy the pursuits of happiness.

As Iowa's U.S. Senators, we have worked to keep alive the dream of hard-working Iowan families.

Now of course it is true that we have vastly different views on the government's influence on America's ladder of opportunity. However, we do wholeheartedly agree it is an honor and a privilege to serve the people of our State. For some reason our respective reelections every 6 years have actually confounded political observers. Many couldn't seem to square the notion that Iowans would continue to elect two U.S. Senators from opposite sides of the political spectrum for the last three decades.

So to explain--or perhaps I don't have to because it is widely understood--Iowans are not casual political

observers. Our electorate takes pride in retail politicking and it is first in the Nation's political caucuses. We certainly have given Iowan voters a night-and-day choice between these two U.S. Senators. So while we may not see eye-to-eye on politics and ideology, we do see eye-to- eye when it comes to working for Iowa's best interests. Although our voting records may reflect night-and-day positions on some public policy, you wouldn't see the light of day between us when we worked together on matters that are of most importance to Iowans, including but not limited to natural disasters such as the tremendous floods of 1993 and 2008, Iowa farmers and agriculture, notably recovering from the farm crisis. Renewable energy and rural infrastructure have been our mutual interest. We have also enjoyed welcoming economic development leaders and constituents to the Nation's Capital.

Between the famous Siouxland steak dinner in Washington and the Harkin steak fry in Indianola, there is no doubt Tom will miss staking out Iowans to discuss politics and policy. However, I have no doubt my home State colleague will continue to champion the causes for which he has devoted a lifetime of service. In fact, I have read in news media about his retirement of what he intends to pursue, and so I have no doubt he is going to pursue out of the Senate what he has pursued in the Senate.

To his credit, my colleague's legacy reflects the priorities he set out to achieve decades ago, to make a difference for those on the downside of advantage.

My wife Barbara and this Senator extend our warmest wishes to Tom and his wife Ruth, and of course to the entire Harkin family, as he starts life's next chapter. I see my colleague on the floor, so I can look at him.

As you start life's next chapter, may you enjoy the blessings of hearth and home, health and happiness. Although Tom is retiring from public office, I am confident he is not retiring from serving the public interest. From one constituent to another, I thank you for your lifetime of public service and I wish you good luck and Godspeed.

I yield the floor.

I thank my colleague for his kind remarks and for being here and for serving the people of Iowa.

Mr. President, I wish to take 4 more minutes to speak on another subject.

Mr. President, on Saturday, many children and families around the country will celebrate National Adoption Day. It's a day that many adoptions are finalized and youth find their forever families.

It's very comforting and fitting that this day helps kick off the holiday season. Families will be formed and strengthened. This Thanksgiving, many children will celebrate with their new families and not have to worry about their next placement or their next meal. And this month, we give thanks to the men and women who make their dreams come true.

Since the first National Adoption Day in 2000, nearly 50,000 children have joined ``forever families'' during National Adoption Day. In 2013 alone, adoptions for 4,500 children were finalized through 400 National Adoption Day events across the country.

These are impressive numbers--numbers that make us proud of the work being done to help children in foster care find loving families. But there is always more work to be done.

Today, there are over 102,000 children in the foster care system. Iowa alone has over 6,200 children in foster care, many of whom are waiting for a loving family to adopt them.

There are so many issues facing foster youth--in addition to being torn apart from their families. They face serious trauma. They are likely to be treated differently and don't get to do the same activities as other kids. They transition from home to home and school to school. They don't know normalcy, and they may never know permanency. And, after years of challenges, some are forced to transition to adulthood on their own. Unfortunately, each year over 23,000 youth age out of care in the U.S.

Too many older children in foster care, especially those with special needs, are often the ones who wait the longest to leave foster care. Foster youth simply desire to have what so many of us were blessed to have--a home with caring, loving parents and siblings. These kids are less likely than younger children to find ``forever homes.''

That is why I helped form the Senate Caucus on Foster Youth. I wanted to draw attention to the challenges that older foster youth face. The caucus has allowed congressional leaders to become more aware of the issues faced by young people and families who are involved in the foster care system.

The caucus cannot function without the input and insight from foster youth. These children are the experts on the foster care system. They tell us what works or what needs to change. They share their experiences and provide us with real world stories about how our policies truly affect them.

The caucus and the youth who share their experiences remind us that no child is unadoptable. No child should be without a mom and dad, and we must remember that foster care should be a layover, not a destination.

November is National Adoption Month, a time to raise national awareness of adoption and celebrate families, advocates, and volunteers involved in adoption. It's also a time to devote more attention to policies and practices that protect the safety and well-being for all children.

I am hopeful that Congress will continue to look for ways to improve the foster care system and promote adoptions. I am glad Congress worked to enact a bill this year to renew the adoption incentives program and to do more to screen and help foster youth who may be trafficked. We must continually examine how the system is treating youth and whether the policies in place are strengthening families.

There are many youth who will celebrate this holiday season without a permanent family. Hopefully, our celebration of National Adoption Month will raise awareness of the issues they face and the need to find them a mom and a dad. We need to keep working together to break down the barriers to adoption.

So today, I thank all those who have adopted or who have fostered children who needed it, and I thank the many individuals and organizations that work to make permanency possible for children. I know many dreams will come true this Saturday, and I wish the very best to the youth as they begin their journey with their new families.

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

Mr. President, I ask unanimous consent that Mary Futcher, a detailee on my staff from the Department of Justice, be granted the privilege of the floor for the remainder of this session of Congress.

I will speak for 20 to 25 minutes.

Mr. President, in his State of the Union Address last January, President Obama announced what he called a year of action. Armed with pen and phone, he promised to take action where Congress wouldn't. At the time, I warned that these threats were a gathering danger to the separation of powers established in our Constitution.

The President is now threatening to implement a mass amnesty from our immigration laws by Executive fiat. He plans to act without the support of Congress or the American people. In fact, he has conveniently waited until after the recent elections to do so in order to avoid being punished at the ballot box. This Executive order will be the culmination of his self-proclaimed year of action.

The President may think of this Executive action as a political victory in a year filled with so many failures and defeats for him and his party, but history will surely view it as a serious blow to the systems of checks and balances established by the Framers. In reality, this was a year in which the President's abuse of Executive power came into clear focus.

Today I would like to review President Obama's pattern of unconstitutional Executive action this year. I would like to explain why the mass amnesty he has been threatening is merely the latest in a long list of abuses of his Executive authority. And I would like to offer a few thoughts about what the Senate can do about these kinds of abuses.

After the President's State of the Union Address, I wrote to the Attorney General on January 31. I wrote that I was ``gravely concerned that the system of checks and balances enshrined in the Constitution [was] threatened by the President's determination to take unilateral action.'' In short, I made clear that ``while the President has a pen and phone, we have a Constitution that places limits on his use of them to issue Executive Orders.'' Indeed, my concern about the President's threat to take action on his own was ``heightened by the administration's record of failing to discharge his constitutional duties to `take Care that the Laws be faithfully executed.' ''

By then, President Obama had already failed to execute the laws in many areas. For example, the administration was rewriting ObamaCare's deadlines at will and was making little effort to enforce the Controlled Substances Act in some States. These abuses rang like alarm bells--alarm bells in the night--even before the so-called year of action began.

Indeed, in December of 2013 a liberal law professor testified before the House Judiciary Committee that ``despite the fact that I once voted for President Obama, personal admiration is no substitute for the constitutional principles at stake in this controversy.''

The professor went on:

When a President claims the inherent power of both

legislation and enforcement, he becomes a virtual government

unto himself. He is not simply posing a danger to the

constitutional system; he becomes the very danger that the

Constitution was designed to avoid.

Against this backdrop, I asked the President to defend the legal basis for the actions he was threatening. In my letter I asked the Attorney General to direct the Justice Department's Office of Legal Counsel to publicly disclose its opinions concerning the lawfulness of the Executive orders proposed by the President. That is what the Office of Legal Counsel does--it reviews all Executive orders to determine whether they are constitutional and lawful. Many of its opinions have been made public in the past. I hoped this transparency would allow Congress and then the American people to better understand the alleged legal basis for these orders and challenge them, if necessary.

Providing Congress and the American people with the legal opinions supporting his unilateral actions seemed like a reasonable request of a President who had claimed to support ``an unprecedented level of openness'' and transparency in government. But February passed, March as well, April came and went, winter turned into spring, and summer was around the corner. Finally, on May 20 I received a response from the Justice Department. In summary, the Department told me no, they wouldn't disclose these opinions to the public. However, the Department assured me that if I had questions about particular Office of Legal Counsel advice documents, it would assist me in understanding them--in their words--to the fullest extent possible. In short, the administration stonewalled legitimate questions from Congress, as it often does, and stymied this Congress from carrying out its constitutional responsibility of oversight.

As it turned out, within a few weeks I and many others in Congress had very serious questions about a specific Executive action and its effect on our national security, and we had questions about the advice provided by the Office of Legal Counsel. The American people had the same questions as well.

In early June the President decided to release five Taliban detainees held at Guantanamo Bay in exchange for SGT Bowe Bergdahl, a U.S. soldier who had been captured in 2009. The detainees were reportedly senior-level Taliban commanders. Some had direct links to Al Qaeda, and all were reportedly determined to be a high risk to the United States and were recommended for continued detention. Nonetheless, President Obama decided to free these prisoners from Guantanamo.

There was one problem, however: The National Defense Authorization Act required the administration to notify Congress 30 days before any detainee could be transferred from Guantanamo. Under this statute, the notification was required to include lots of detailed information about the basis for the transfer--why it was in our national security interests and any actions taken to prevent detainees from returning to the battlefield. In fact, none of this information was provided to the Congress before these detainees were released, as the very law requires. And perhaps not coincidentally, this was information that Members of Congress and the American people were very interested in learning. There were and still are serious questions about whether releasing these detainees from Guantanamo was a good idea.

So the President decided to act alone, without regard to Congress's role in our system of checks and balances and directly contrary to a law the President had recently signed.

Then the administration began changing its story about why it broke the law. First, they said it was Sergeant Bergdahl's health that required his release--his release without notifying Congress. Then they said it was operational security surrounding the release itself. Then they said it was the nature of the negotiations with the Taliban.

But there was one point administration officials were clear about-- the Department of Justice had provided legal advice that justified transferring these detainees from Guantanamo without informing Congress as the law required. This was difficult to square with the limited powers of the Executive established in the Constitution.

In Youngstown Sheet & Tube Company v. Sawyer, otherwise known as the steel seizure case, the Supreme Court set a clear precedent establishing what a President can and cannot do. In that case the Supreme Court held that President Truman's Executive order seizing steel mills to avoid a strike during the Korean war was unconstitutional. In doing so, the Court emphasized that the Executive isn't above the law as written by Congress.

The Founders of this Nation entrusted the lawmaking powers

to the Congress alone in both good and bad times. It would do

no good to recall the historical events, the fears of power

and the hopes for freedom that lay behind their choice. Such

a review would but confirm our holding that this seizure

order cannot stand.

Moreover, Justice Jackson emphasized that point here:

When the President takes measures incompatible with the

expressed or implied will of Congress, the authority of the

President is at its lowest [ebb].

Just as the Supreme Court held that President Truman had unlawfully seized the steel mills, President Obama's release of the Taliban detainees without a required notification effectively rewrote the law contrary to the will of Congress.

In short, there didn't seem to be a lawful basis for what the President had done. In fact, it seemed plainly illegal.

So I took the Department up on its offer. In a letter to the Attorney General dated June 5, I requested that he direct the Office of Legal Counsel to make public ``its opinions, analyses, and conclusions concerning the lawfulness'' of the transfer without compliance with the statute that required congressional notification. I went on to say:

It is obviously too late for Congress to express its

concerns about these transfers in time to prevent them.

However, this measure of transparency will at least allow the

American people to better understand the Administration's

purported basis for ignoring the legal requirement that

Congress be notified in advance, and shed additional light on

this controversial decision.

It is now 6 months later, and the Attorney General hasn't given me the courtesy of a response to my letter. We still don't know how the Department justified the release of these detainees. We don't know the legal basis or the underlying facts that were relied upon. That should not be acceptable to anyone, but sadly it has become commonplace with the Obama administration.

It turns out that to this Justice Department, assisting me ``to the fullest extent possible'' is actually indistinguishable from ignoring my request completely.

Shortly thereafter, in August, the Government Accountability Office concluded that the administration acted illegally when it released these senior-level Taliban commanders from Guantanamo without notifying Congress, as the law recently signed by the President demanded.

Let's be clear. That wasn't a Member of Congress reaching that conclusion. It wasn't a political operative or a talking head on television. It was an independent, nonpartisan government agency. So the GAO effectively said: President Obama, you broke the law.

So perhaps it makes sense that the Department of Justice couldn't respond to my letter. Maybe even the very smart lawyers in the Office of Legal Counsel couldn't come up with a justification for what happened that could pass the laugh test.

But that wasn't the only rebuke the President suffered this year after trampling on Congress's role under the Constitution. The Supreme Court was forced to rein in President Obama as well in a dispute over his powers to make recess appointments.

Article II, section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers. First, it provides that the President nominates and, with the advice and consent of the Senate, appoints various officers. Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.

Back in 2012, President Obama made four appointments to various executive branch positions. They were purportedly based on the recess appointments clause. But he took this action even though they weren't made, in the words of the Constitution, ``during the recess of the Senate'' because the Senate was still in session.

No President in history had ever tried to make recess appointments when the Senate said it was in session, but this President once again decided to go around Congress.

In June of this year, the Supreme Court struck down these appointments as unconstitutional. It wasn't a split decision. It wasn't 5 to 4 along party lines. It was unanimous. Every Justice agreed--those appointed by both Republicans and Democrats. That included two Justices appointed by President Obama himself. It was the Supreme Court's biggest rebuke to any President since 1974, when it ordered President Nixon to produce the Watergate tapes.

This was a case where the Office of Legal Counsel's opinion didn't pass the laugh test again. So the Supreme Court unanimously said: President Obama, you broke the law.

So this purported year of action has brought into focus a President with little respect for the roles of the coequal branches of government, unwilling to explain the legal basis for his actions, and rebuked by the courts and independent agencies for overstepping his bounds--quite out of character with somebody who proudly says he is a professor of constitutional law.

Now, again, the President is threatening to act unilaterally on immigration. If we thought this year's events so far would have given the President pause about his ``go it alone'' approach, apparently we would be wrong.

Of course one of the reasons I oppose mass amnesty is because it is bad policy. Immigration reform should begin with securing our borders. Border security is among the most basic responsibilities of any country and somewhat the definition of what sovereignty is all about.

But this administration hasn't done that. To the contrary, according to recent news reports it has freed alleged kidnappers, rapists, and murderers into communities in the United States rather than deport them. It has sacrificed public safety in order to provide relief for people who are here illegally.

But the President's unilateral action on immigration isn't just bad policy, it is contrary to the rule of law. It is unconstitutional for the executive branch to nullify or even unilaterally rewrite the immigration laws that the people of the United States through their elected representatives have chosen to enact.

We have been hearing about the possibility of an Executive action on immigration for many months. It will apparently involve steps to allow millions of people illegally present in the United States to live, work, and collect benefits here.

The Democratic leadership wants to compare what is being threatened here to the Executive actions of past Presidents on immigration, but the actions of Presidents Reagan and Bush were merely tying up loose ends, carrying out a law Congress at that time had just passed. They established policies that were later put in the statute in 1990. President Obama is threatening to act directly against the wishes of Congress and on a far greater scope and scale. That is why I and 21 other Senators wrote to the President on April 24 to express our grave concerns about the lawfulness of what was reportedly under consideration, and apparently our warnings were not heeded.

Now, if the President acts after repeated calls by congressional leaders not to do so, it will severely damage his relationship with the new Congress elected by the American people.

But the core issue is this: Under our Constitution, the Congress makes the law. Under article II, section 3, the President is charged with taking care that these laws are faithfully executed. But if President Obama effectively legalizes people who are here unlawfully, no one will be able to reasonably argue that he is faithfully executing our laws. Once again, that doesn't pass the laugh test.

So, like the Government Accountability Office and the Supreme Court earlier this year, I say: President Obama, if you take this Executive action on immigration, you will be breaking the law, and even more than that, you will be violating the Constitution.

And the President knows this. Just a few years ago he conceded:

This notion that somehow I can just change the laws

unilaterally is just not true. The fact of the matter is

there are laws on the books that I have to enforce. And I

think there's been a great disservice done to the cause of

getting . . . comprehensive [immigration] legislation passed

by perpetrating the notion that somehow, by myself, I can go

and do these things. It's just not true. We live in a

democracy. We have to pass bills through the legislature, and

then I can sign it.

That is the end of a quote of the President that speaks to exactly what the responsibilities of a President happen to be and how they should be viewed and how he ought to be acting now. The President was right then, even if he doesn't want to live by his own words now. There are no shortcuts to following the Constitution.

Now what we are likely to hear from the administration is that this Executive action is simply a lawful exercise of enforcement discretion. It is not. It is simply not an exercise of enforcement discretion. Lawful enforcement discretion is exercised on an individual case-by- case basis. So whether enforcement action takes place is informed by a careful evaluation of the facts in a particular case as each case presents itself. Lawful enforcement discretion isn't selecting entire categories of individuals and telling them that going forward the law won't be applied to them. That is what President Obama is threatening to do.

This shouldn't only concern constitutional scholars and lawyers. It is no exaggeration to say that the freedom of the American people is at stake. That is what the Framers believed. Listen to Federalist Paper 51. James Madison wrote that ``separate and distinct exercise of different powers of government'' is ``essential to the preservation of liberty.''

Moreover, in the Steel Seizure case I quoted, Justice Frankfurter warned that ``the accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.''

President Obama's actions this year wreak of unchecked disregard for the restrictions of his authority. In his remarks after the recent elections, President Obama repeatedly emphasized that his Executive actions would be lawful, but, as this year has shown, he has repeatedly acted illegally even though the Department of Justice evidently had assured him otherwise. The Office of Legal Counsel doesn't appear to be providing independent legal advice to the President; it is simply rubberstamping whatever he wants to do. So it is cold comfort for the President to assure us that anything he will do is legal.

Let's go back to the bedrock principles of our country's Founders. The Framers of the Constitution knew an abusive Executive when they saw one. They sent the Declaration of Independence to a King who had ignored and abused their legislatures and laws. The Framers would also have recognized the specific kinds of Executive abuses as reflected in President Obama's mass amnesty. They would have referred to them as the royal suspending and dispensing powers. But George III didn't even try to abuse colonists with these powers. Why? Because Parliament had denied them to the King 100 years before the American Revolution.

You see, the Kings of England had traditionally asserted the power to suspend the operation of certain laws or to grant dispensations prospectively excusing particular individuals from compliance. But as deference to the King's authorities eroded, these powers became more controversial.

As part of the Glorious Revolution in the late 17th century, these royal powers were terminated. The first two articles in the English Bill of Rights of 1689 made it illegal for the King to exercise the ``pretended power of suspending the laws and dispensing with the laws.'' This happened a century before our own Constitutional Convention. So when the Framers met in Philadelphia, these were abuses long since remedied in England. Instead, the Framers charged the President with the constitutional duty to take care that the laws are faithfully executed.

With his talk now of mass amnesty, President Obama is threatening to abandon his constitutional duty. He is threatening to reassert royal powers that even the Framers thought were long abolished. He is threatening to take our country backward a century before the American Revolution.

When talking about immigration policy, the President has acknowledged that he isn't a King, so common sense tells me he shouldn't act like one.

During the President's remaining 2 years in office, how should the Senate respond to his illegal Executive action on immigration or any other Executive abuses? In some cases we can use the power of the purse to defund them. In other cases we may use our congressional oversight tools to expose them. In still other cases, we may be able to pass legislation to do away with them completely. These tools have been available to the Senate since President Obama was elected. It should come as no surprise that the Democrats in the majority didn't use them to confront his abuses of power. So in the 114th Congress, we Republicans intend to use that.

The best course of action for the President is this: Learn from President Clinton. He lost control of the Congress 2 years after he became President. He decided to show leadership and work with the Congress of the United States. Great things happened with a Republican Congress and a Democratic President. We had welfare reform. We had 40 percent of the people leave the welfare rolls. We had tax reform. We had budgets that were balanced and paid down $568 billion on the national debt. There are things we can do together very early.

The President wants patent trolling and corporate tax reform. There are a lot of things we can work on together.

I have been led to believe that the President is very much a free trade person, and I believe he is. We could pass trade promotion authority. We could work together with the President in the early months of next year and we could gain credibility. Under his leadership, we could reform an immigration system that needs reform. But, no, I think the President is going to take another route and retard the cooperation that is potentially available to him just as it was when President Clinton was President.

I hope the President will rethink what he wants to do and show the same leadership that President Clinton did so we can get off to a very good start next year.

I yield the floor.

Mr. President, I intend to object to consideration of the nomination of Lourdes Castro Ramirez to be the Assistant Secretary of the Department of Housing and Urban Development, HUD, for the Office of Public and Indian Housing.

Over the last 4 years, I have been raising concerns about serious problems at public housing authorities and HUD's failure to address them. The Office of Public and Indian Housing is responsible for overseeing the public housing authority program.

I recently learned that HUD is negotiating new, 10-year contracts with the 39 housing authorities participating in the Moving to Work, MTW, demonstration program. The Office of Public and Indian Housing is also responsible for administering this program but has failed to conduct proper oversight for years.

The current contracts don't expire until 2018 so there is no need to rush into signing new contracts. Instead, I recommend HUD takes serious steps to address the program deficiencies and determine if this demonstration should continue.

A group of housing advocacy organizations sent a letter to HUD on November 7, 2014, raising concerns about the lack of transparency in the MTW contract negotiations. I am requesting that a copy of this letter be included with my statement in the Record. These organizations represent the people directly impacted by HUD decisions. They are asking questions that would strengthen the program and protect funding from abuse. But HUD is blocking them from participating in the process. Only the MTW agencies are allowed to review the contracts and comment on the proposed changes.

According to HUD briefing materials, the MTW housing authorities operate about 14 percent of the Nation's housing stock and receive over $3 billion in funding per year, equal to about 20 percent of total program funding. Yet HUD has failed to require any meaningful accountability or transparency.

This has led to financial abuses at the Chicago Housing Authority and other MTW housing authorities. On October 23, I sent a letter to HUD about the Chicago Housing Authority (CHA), a Moving to Work participant. CHA has diverted approximately $432 million in Federal funding into a reserve fund instead of issuing over 13,500 vouchers to Chicago families who need affordable housing assistance.

For example, the Atlanta Housing Authority has at least 20 employees receiving annual compensation ranging between $150,000 and $300,000 per year. The executive director explained that these high salaries are necessary ``to both `attract and retain' competent staff.''

The executive director of the Philadelphia Housing Authority also received a high salary over $300,000 per year. He also threw lavish parties, provided patronage to friends and supporters, and secretly paid sexual harassment claims.

Instead of providing safe, affordable housing for those in need, housing authority officials are using Federal

funding to feather their own nests. HUD tells me these problems are anomalies, which lead me to believe the Department may be turning a blind eye to program failures no matter what the costs.

Both the HUD inspector general and the Government Accountability Office, or GAO, audited the MTW program. Both determined that little program oversight is actually being done. HUD has no procedures to verify agency self-reported performance data and HUD officials weren't even aware that they were required to perform annual risk assessments. HUD also has no program-wide performance indicators that would help determine if this program is a success or failure.

Worse yet, HUD never performed mandatory program evaluations to determine if the agencies complied with their MTW agreements or whether they should still be in the program. Department officials said they lack the funding to performing the evaluations. Under the current budget climate, additional funding may not be available anytime soon. In other words, HUD can't tell me if the Moving to Work program actually works or if it will work in the future.

GAO officials informed me that the agency may be close to closing three recommendations. For the other five recommendations, they are waiting for HUD to provide additional documentation about what steps are being taken or what is needed to close each of them. Instead of taking steps to improve program performance and provide more effective oversight, the Agency is, instead, rushing to extend contracts for an additional ten years.

I expect a lot more answers and accountability before there is a vote on Ms. Castro Ramirez's nomination. HUD must also refrain from adding new housing authorities to the MTW program until the agency provides GAO with the requested information and a definitive timeline for closing the outstanding recommendations.

Mr. President, on Thursday this country will commemorate the 13th anniversary of the September 11 terrorist attacks.

We learned many lessons from that day. One key lesson was that terrorists can and will exploit our immigration system and policies to enter and remain in the United States and now and into the future potentially harm Americans.

The 9/11 attacks were carried out by 19 hijackers, some of whom entered on student visas and trained in flight schools in the United States. The 19 individuals applied for 23 visas. They lied on their applications. They failed to abide by the terms of their visas. This was a wake-up call that we needed better oversight of our visa programs, especially student visas. But this wasn't our first wake-up call.

In 1993 the American people were confronted with the first terrorist attack on the World Trade Center. One of the instigators of that attack was on an expired student visa.

Since 1993 we have mandated the tracking of foreign students and gave schools and universities a responsibility to help us monitor these programs while these students are on U.S. soil. Unfortunately, while this tracking system is up and running today, it is still antiquated and the Federal Government remains incapable of ensuring that those students who enter the country are truly attending our educational institutions.

Today nearly 10,000 schools across the country accept foreign students, and those schools are responsible for communicating with our government about the whereabouts of these students. Enrollment of foreign students is increasing.

According to the Brookings Institution, the number of foreign students on F-1 visas in U.S. colleges and universities grew from 110,000 in 2001 to 524,000 in 2012. Despite this overwhelming increase, the technology and oversight of the student visa program has insufficiently improved.

Now, 13 years after 9/11, we have sham schools setting up in strip malls with no real classrooms. We have foreign nationals entering the United States with the intent to study but then disappear and never attend a class. I will give just two examples of sham schools.

In 2011, Tri-Valley University reported that they would bring in less than 100 students but actually brought in over 1,500. Tri-Valley University officials were caught giving F-1 visas to undercover agents posing as foreign nationals who explicitly professed no intention of ever attending classes. Students paid $5,400 per semester in tuition to the school to obtain those student visas until that school was shut down.

On May 29 this year, the Micropower Career Institute in New York was raided by Federal officials. Its top officials were arrested on student visa fraud. Allegedly, school officials did not report foreign nationals when they didn't attend classes, and they falsified those student records so the school could continue to collect Federal education dollars for those students. But despite the indictment of officials at this so-called school, it still remains open for business.

The Government Accountability Office reported to Congress in 2012 that sham schools posed a problem. We put a lot of faith in the work of the Government Accountability Office. The GAO said the Immigration and Customs Enforcement does not have a process to identify and analyze risks across schools. Immigration and Customs Enforcement has overlooked

major indicators of fraud, and they cannot follow trends or predict abuse. Two years later the problems continue to exist and the Obama administration just fiddles while the problem burns.

ABC News investigated the student visa program and made it public last week. They said 6,000 foreign nationals on student visas have disappeared. An ICE official acknowledged that they had ``blended into the landscape somewhere.'' Yet this number of 6,000 is not the total number of student visa overstays. This is the number of students that the Immigration and Customs Enforcement is trying to locate. That ought to be alarming news that it is only 6,000.

It is time to close the loopholes and clamp down on schools that have a poor track record with regard to foreign students. So this week I am introducing legislation that requires schools to be certified in order to bring in foreign students, and it would suspend schools if there are noncompliance issues. My bill would increase penalties for those who perpetrate fraud and require background checks and training for school officials. It would also put an immediate end to a flight school's participation in the foreign student program if they are not FAA approved.

Finally, it would require the Department of Homeland Security to deploy an upgrade to the existing tracking system. This upgrade can be paid for by using fees from student visas and the schools that participate.

What I just said aren't new ideas. These are provisions that were taken from a 2012 bipartisan bill led by the senior Senator from New York. That bill never passed the Senate. When the Gang of 8 wrote their misguided immigration bill, they failed to include these reforms. So I offered an amendment during committee consideration of the immigration bill last summer and it was included in the bill that passed the Senate.

The bill I am introducing today is the exact same language. It has been debated. It was accepted by unanimous consent in the Judiciary Committee.

I hope my colleagues will seriously consider the bill I am introducing. It is well past time that we close loopholes and be more vigilant in the foreign student visa program, especially with the growing terrorist threat we face.

Remembering James M. Jeffords

Madam President, I wish to pay tribute to Senator Jeffords of Vermont, who passed away last month.

Senator Jeffords died this last August while the Senate was in recess. Yesterday, the Senate appropriately adopted a resolution commemorating the former Senator.

Senator Jeffords is probably best known for switching parties, from being a Republican to an Independent and caucusing with the Democrats back in 2001. As much as that switch hurt at the time, I always held Jim in very high regard and I knew him to be a very honorable man.

Jim and I were both so-called Watergate babies--two of the very few new Republican House Members who survived the 1974 election after Nixon's resignation and subsequent pardon. So we joined the House of Representatives together and became friends then.

It wasn't only a tough political environment back then, it was also a physical challenge for us. During that campaign year I had surgery on my leg and was walking on crutches. Jim had been in a car accident and had a neck brace as a result of that accident.

An amusing story has been reported about the two of us. I didn't hear it myself, but it had been brought up in a report on the funeral. The amusing story is about the two of us walking down the aisle of the House to be sworn in as freshmen after that devastating election for Republicans--this Senator on crutches and Jim with his neck brace.

Somewhere in the Chamber, a Democratic Member yelled out, ``There's two more that we almost got!''

The two of us laughed for years about that because of course we had the last laugh, serving for many years and being elected to the Senate and both becoming chairmen of committees in this body.

One of the most honorable things Jim did for me and, I believe, for the country was in regard to the 2001 tax relief bill that was by some measures the largest tax cut in history. Not many know the history of that bill. I was chairman of the Finance Committee and so was in charge of putting the bill together and getting it passed in the Senate. The process started with a budget resolution with reconciliation instructions to our Finance Committee.

The Bush administration pressed that year for a $1.6 trillion tax cut. Senator Jeffords and others insisted that the number had to be cut by $300 billion because they feared the money wouldn't be there in the end. Of course, as we now know from history, they ended up being right on that point a few years later when we sank into years of deficit spending, but we needed their votes. I made it clear to President Bush and our leadership that if we wanted to get something done and have a historic tax cut, we had to lower our sights some and still get most of what we wanted.

Unfortunately, I took a lot of criticism from my side for supporting Senator Jeffords and others, but I knew where the votes were and where the votes weren't. I remember a bunch of House Members even had a press conference saying some not-so-nice things about me and the idea of only accepting a $1.3 trillion tax package. But our Senate Republican leadership wanted a good result, and they agreed to compromise in order to get it. That is not something you see nowadays around here on very big bills. If the majority cannot have their way, they just file cloture and let the bill die, which is why we don't get much done around here anymore.

But the pivotal point on the 2001 tax bill came right before the time Senator Jeffords switched political parties. I could never really blame Jim for his decision. I didn't agree with that decision, but I know he felt he had been mistreated by some in our party and had strong disagreements with some of us on issues.

During floor consideration of the tax bill that year, we were near the end, and the Democratic minority at that time was offering amendment after amendment to stall the bill. We had gotten to the point where they were just changing a few words in an amendment and offering the same amendment again.

At that point I walked over to then-minority whip--who happens to be the current majority leader--Senator Reid and asked what was going on. He said: Well, we think things may be changing around here very soon. Of course, I didn't know what he was talking about and I assumed that some votes were going to change. But of course he was talking about the impending party switch that none of us knew anything about involving Senator Jeffords. Remember, at that time we were split 50/50. Of course, what that meant was the Senate leadership would change and presumably the new Democratic leadership would pull the tax bill from the floor and kill it. So it was important for the Democrats to stall as long as they could on the bill, anticipating the Jeffords switch. But to his great credit, Senator Jeffords came to me and told me that out of respect for me and the way I worked with him on this tax bill, he would not officially change parties until after the tax bill was passed. So we were able to finish that historic bill and get it signed into law.

This little-known episode demonstrates what an honorable man and true friend Jim Jeffords was. He didn't let politics dictate whatever he was determined to do, and he stood by his word. I only wish we could see more of that now in today's Senate. If we did, we would all certainly be better off, it would be a better place, our policies would be a lot better, and we would be more productive.

I commemorate Senator Jeffords in his death. My sympathies are with his family. I will miss him, and I wish him Godspeed.

I yield the floor.

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

Mr. President, as we all know, we are discussing a constitutional amendment sponsored by 45 members of the Democratic Party to restrict free speech.

This constitutional amendment pending before the Senate is a real threat to one of the two most vital developments in our Nation's legal and constitutional history.

One of those legal successes was the development of a body of civil rights laws to protect the basic freedoms of all Americans. That took a long time and required massive effort and even bloodshed as well as judicial rulings. The second development was the enhancement of free speech as protected by the First Amendment. That process also required massive time and effort and judicial rulings.

Both of these struggles were made necessary because the Supreme Court failed to give effort to the intent of the authors of the First and 14th Amendments in guaranteeing liberty and equality. It took President Jefferson assuming office--not the courts interpreting the First Amendment--to address the criminalization of free speech under the Alien and Sedition Acts.

When Congress in the 1830s and 1840s denied the right to petition for redress of grievances to those who opposed slavery, it took John Quincy Adams and Congress--not a court relying on the First Amendment--to change those rules.

The reality is the First Amendment had a very limited scope until well into the 20th century. After a judicial sea change, the courts now give broad protection to free speech.

Political speech is now constitutionally protected unless the government has a compelling interest, and the restriction is narrowly tailored to further that compelling interest. Those free speech battles took many years to win. If the arguments that proponents of this constitutional amendment are making were adopted, we would be turning the clock back on 100 years of progress of protecting free speech. The constitutional amendment before us is a content-based restriction on free speech.

Speech influencing campaigns for elective office would be restricted. No other speech content, however, would be restricted. Some of that speech by corporations and other entities could be prohibited entirely, and those who engage in such speech could be criminally prosecuted.

The Supreme Court has allowed content-based restrictions on speech in only a very few cases, such as obscenity, defamation, child pornography, and threats.

The proposed constitutional amendment would restrict the most important speech the First Amendment protects--and that happens to be core political speech. It would treat that speech as if it were like child pornography.

In the Judiciary Committee, one Democrat actually compared core political speech to child pornography. It is incredible that would be said. Comparing the core political speech the Bill of Rights protects to the video recording of an unspeakable crime against a child doesn't make any sense.

That same Senator and the sponsor of the amendment on the floor both argued that campaign-related speech can be restricted because free speech doesn't include the right to falsely shout fire in a crowded theater. This is the argument that would reduce free speech protection in this country to the minimal level that it enjoyed 100 years ago, before there was expansion of protection under the First Amendment.

When Justice Holmes made that famous fire statement in that case, the Supreme Court wasn't being asked to rule on the legality of a conviction of someone who had falsely yelled fire in a crowded theater. Rather, the case involved a man who was convicted of distributing leaflets urging young men not to comply with the draft laws during World War I.

Justice Holmes compared that peaceful protest to a shout that would immediately lead to serious bodily injury and perhaps loss of life for larger numbers of people. That is obviously a false analogy.

Those who speak in support or opposition to candidates are comparable then to those who pass out leaflets in opposition to government policy. It is obviously false analogy to compare that speech designed to persuade fellow citizens in their voting to falsely yelling fire in a crowded theater.

It is easy for the government to determine whether a cry of fire is true or false, but a campaign ad isn't often clearly false. Even a false ad doesn't create the risk of death. When a government prosecutes those who falsely cry fire in a crowded theater, that prosecution will have the beneficial effect of deterring others from engaging in that same conduct. But when government criminalizes ads that it determines are false or limits how much can be spent on those ads, backed up by criminal penalties, that in fact will produce the harm of reducing the likelihood that others will speak about important public subjects-- hence, weakening our democracy.

Justice Holmes quickly came to realize the errors of his ways. In subsequent Supreme Court decisions, he and Justice Brandeis dissented when the majority applied the clear and present danger test that the fire-in-the-theater analogy supported. They voted to protect peaceable free speech. They understood that in a free country, the way to address controversial speech was through speech by others with different views--not by shutting up people with the threat of jail.

It took a long 50 years for the Court to adopt the protections for free speech that Justice Holmes and Judge Learned Hand had advocated to no avail. And if this constitutional amendment passes, that glorious history of the understanding of the importance of free speech in a democracy will be undone.

It was only a few years after its 1969 ruling providing strong constitutional protections of free political speech that the Supreme Court ruled on its first campaign speech case; that is, Buckley v. Valeo. In that case the Court ruled that the independent expenditures could be limited. The decision wasn't the work of supposed conservative judicial activists. Wealthy individuals have been able to spend unlimited amounts on campaign-related speech since then. That isn't a novel development that dates only to Citizens United. Buckley also permitted nonprofit corporations to engage in independent expenditures designed to influence campaigns. Corporations and others could contribute to these nonprofit entities.

In context, Citizens United represents an advance over the prior law, especially in promoting transparency. Floyd Abrams, the Nation's foremost First Amendment litigator, wrote to the Judiciary Committee in questions for the record:

What Citizens United did do, however, is permit

corporations to contribute to PACs that are required to

disclose all donors and engage only in independent

expenditures.

If anything, Citizens United is a pro-disclosure ruling

which brought corporate money further into the light.

So I don't think my colleagues are correct in saying this amendment is about so-called ``dark money.'' And limiting speech is totally separate from disclosure of speech. This amendment says nothing about disclosure.

It is the constitutional amendment, not Citizens United, that fails to respect precedent. It doesn't simply overturn one case. The Supreme Court has repeatedly found that engaging in campaign speech is fully protected by the Bill of Rights. Time after time it has ruled correctly that because effective speech can only occur through the expenditure of money, government cannot restrict campaign expenditures by candidates or others. Repeatedly, the Court has recognized that effective campaign speech requires that individuals have the right to form groups that

will spend money on campaign speech. Those Supreme Court decisions were joined and sometimes written by great liberal Justices.

This proposal represents a radical departure from long-established free speech protections. It is at war with an entire body of jurisprudence. It extends well beyond corporations.

Despite the sponsors of this amendment limiting their criticism to one or two cases, the amendment would overturn not just those few cases but 12 Supreme Court decisions, according to that expert, Mr. Abrams. As the amendment has been redrafted, it may be only 11.5 cases now, depending upon what the word ``reasonable'' means. And why the word ``reasonable'' was left out in the first place and why it was included now, I don't know, but it is included now because people realize the extremities to which this constitutional amendment would take it. But even with the word ``reasonable,'' that extreme position would take us down a slippery slope, amending the Bill of Rights, and I don't think we want to go down that slope.

Justice Stevens, whom the committee Democrats relied on at length in support of the amendment, voted with the majority in three of the cases the amendment would overturn.

It is hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed. That is why the arguments made here on the Senate floor that matters were fine before Citizens United 4 years ago are beside the point.

Also off-point is the argument by another Democrat that the debate here concerns only whether Citizens United was correctly decided under the First Amendment and that the overall protection of free speech is not at issue whatsoever. The amendment before us doesn't just reverse Citizens United. It doesn't just take us back 4 years. It reverses decades of precedent that gave broad protection to free speech. That is why the stakes are so high and why we are spending so much time debating this constitutional amendment.

Yet another argument was raised on the floor that overturning Citizens United through a constitutional amendment is comparable to overturning earlier Supreme Court decisions on women's suffrage or poll taxes. In response to a written question from the Judiciary Committee, the same scholar, Mr. Abrams, forcefully rejected any such comparison. He wrote this back to us Senators:

The notion that a Supreme Court opinion protecting First

Amendment rights should be viewed as comparable to one

depriving slaves or women of their rights is both

intellectually flawed and morally repugnant.

How can constitutional amendments assuring freedom of

slaves or equality for women possibly be viewed as analogous

to taking away--

Emphasis on ``taking away''--

citizens' First Amendment rights?

This morning the lead sponsor of the amendment contended that the amendment wouldn't lead to banning books or putting people in jail. He also claimed that Congress had not provided for such results in earlier years and would not do so now. He said that even if Congress tried, it would be very unlikely that both Houses would pass such a measure. He maintained that even if such extreme measures were enacted, the Supreme Court would strike down them as unreasonable. It reminds you that the alien and sedition laws never put anybody in prison. But this sponsor did not deny that Congress could, in fact, pass legislation that would have the effect the opponents have raised. What does he think would happen if someone violated the reasonable spending limits? Some government agency would have to enforce them with criminal penalties. Violating them would subject people to jail for speaking. The Obama Justice Department, which would enforce those criminal laws, told the Supreme Court that if Citizens United had been decided as the sponsors of the amendment desire, it would prosecute book publishers.

In this country constitutional rights do not depend on the kindness of politicians not infringing them. Otherwise, we wouldn't have had the Alien and Sedition Acts. Those limits prevent Congress from violating rights in the first place.

The Bill of Rights was adopted precisely because the citizens rejected the argument that the Constitution's difficult passage to legislative enactment by itself was adequate to protect fundamental liberties such as free speech. And it is cold comfort that after the election is over and they have been barred from speaking, citizens can spend money to ask the Supreme Court to reverse their convictions.

I have made clear that this amendment abridges fundamental freedoms that are the birthright of Americans. The arguments made to support it are very unconvincing. The amendment will weaken, not strengthen, democracy. It will not reduce corruption but will open the door for elected officials to bend democracy rules to benefit themselves, and that is benefiting incumbency.

The fact that the Senate is considering such a dreadful amendment is a great testament to the wisdom of our Founding Fathers in insisting upon and adopting the Bill of Rights in the first place, a necessary forerunner to whether the Colonies would approve the Constitution in the first place.

Justice Jackson famously wrote:

The very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political

controversy, to place them beyond the reach of majorities and

officials and to establish them as legal principles to be

applied by the courts.

One's right to life, liberty, and property, to free speech,

a free press, freedom of worship and assembly, and other

fundamental rights may not be submitted to vote; they depend

on the outcome of no elections.

We must preserve our Bill of Rights, including our right to free speech. We must not allow officials to diminish or ration that right. We must not let this proposal become part of the supreme law of the land.

I yield the floor.