Floor Statements

Madam President, I ask unanimous consent to speak for 25 minutes.

Madam President, the proceedings on the amendment before us show just how broken the Senate is under the current leadership.

Yesterday the majority leader stated:

We're going to have a cloture vote to stop debate on this.

[Republicans] say, well, great, we'll go ahead and support

that because we can stall.

He also said:

There will be no amendments. Either you're for campaign

spending reform or not. So my Republican colleagues, they can

stall for time here.

This is an ``Alice in Wonderland,'' upside-down world the majority leader is describing. You can bet that if Republicans were blocking Democrats from describing this amendment, we would be accused of obstruction. But when we vote to proceed to this amendment, as we did yesterday, we are also accused of obstruction. It goes to show that whatever Republicans do, we will be accused of obstruction. That is a catch-22. That is the majority's game plan--bring up partisan measures for political posturing, avoid working together to solve problems, and blame the other side no matter what the other side does. That is why the Senate is broken.

The amendment before us would amend the Bill of Rights and do it for the first time. It would amend one of the most important of those rights--the right of free speech. The First Amendment provides that Congress shall make no law abridging freedom of speech. The proposed amendment would give Congress and States the power to abridge that freedom of free speech. According to the amendment, it would allow them to impose reasonable limits, whatever those reasonable limits might be, on contributions and expenditures--in other words, limiting speech that influences elections. It would allow speech by corporations that would influence elections to be banned altogether.

This amendment is as dangerous as anything Congress could pass. Passing for the first time an amendment to the Constitution amending the Bill of Rights is a slippery slope. Were it to be adopted--and I believe it will not be--the damage done could be reversed only if two- thirds of both Houses of Congress voted to repeal it through a new constitutional amendment, with three-fourths of the States ratifying that new amendment.

So let's start with first principles. The Declaration of Independence states

that everyone is endowed by their Creator with unalienable rights that governments are created to protect. Those preexisting rights include the right to liberty.

The Constitution was adopted to secure the blessings of liberty to Americans. Americans rejected the view that the structural limits on governmental power contained in the original Constitution would adequately protect the liberties they had fought in that revolution to preserve. So before the Colonies would approve the Constitution, the Colonies--or then the States under the Articles of Confederation-- insisted on the adoption--or the addition to the original Constitution--of the Bill of Rights.

The Bill of Rights protects individual rights regardless of whether the government or a majority approves of their use. The First Amendment in the Bill of Rights protects the freedom of speech. That freedom is basic to self-government. Other parts of the Constitution foster equality or justice or representative government, but the Bill of Rights is only about individual freedom.

Free speech creates a marketplace of ideas in which citizens can learn, debate, and persuade fellow citizens on the issues of the day. At its core, it enables our citizenry to be educated, to cast votes, to elect their leaders.

Today freedom of speech is threatened as it has not been in many decades. Too many people do not seem to want to listen and debate and persuade. Instead, they want to punish, intimidate, and silence those with whom they disagree. For instance, a corporate executive who opposed same-sex marriage--the same position President Obama held at that very time--is to be fired. Universities that are supposed to be fostering academic freedom cancel graduation speeches by speakers some students find offensive. Government officials order other government officials not to deviate from the party line concerning proposed legislation.

The resolution before us--the proposed constitutional amendment cut from the same cloth--would amend the Constitution for the first time to diminish an important right of Americans that is contained in the Bill of Rights. In fact, it will cut back on one of the most important of those rights--core free speech about who should be elected to govern.

The proposed constitutional amendment would enable governments to limit funds contributed to candidates and funds spent to influence elections. That would give the government the ability to limit speech. The amendment would allow the government to set the limit at low levels. There could be little in the way of contributions or election spending. There would be restrictions on public debate on who should be elected. For sure, incumbents--those of us who sit in this body--would find that outcome to be acceptable because it would weaken possible opposition. They would know no challenger could run an effective campaign against them.

What precedent would this amendment create? Suppose Congress passed limits on what people could spend on abortion or what doctors or hospitals could spend to perform them. What if Congress limited the amount of money people can spend on guns or limited how much people could spend of their own money on health care? Under this amendment Congress could do what the Citizens United decision rightfully said it could not; example: Make it a criminal offense for the Sierra Club to run an ad urging the public to defeat a Congressman who favors logging in the national forests; another example: Prohibiting the National Rifle Association from publishing a book seeking public support for a challenger to a Senator who favors a handgun ban or for the ACLU to post on its Web site a plea for voters to support a Presidential candidate because of his stance on free speech. Nobody wants a government that powerful which could enforce those examples I just gave as well as other examples.

Don't take my word for it. In fact, at oral argument in Citizens United, the Obama administration told the Court it would be legal for a corporation to be prosecuted for publishing a book that expressly advocated for or against the election of a candidate. Sounds impossible, but that is what was said. Consequently, the Obama administration and the Democratic leadership support banning books they don't agree with. Consequently, that should be a frightening prospect for all of us.

Under this amendment, Congress and the States could limit campaign contributions and expenditures without complying with existing constitutional provisions. Congress could pass a law limiting expenditures by Democrats but not by Republicans, by opponents of ObamaCare but not by its supporters.

What does the amendment mean when it says Congress can limit funds spent to influence elections? If an elected official says he or she plans to run again, long before any election, Congress under this amendment could criminalize criticism of that official as spending to influence elections. A Senator on the Senate floor, as I am right now, appearing on C-SPAN free of charge, could, with constitutional immunity, defame a private citizen. The Member could say the citizen was buying elections. If the citizen spent what Congress said was too much money to rebut that charge, he could possibly go to jail. We would be back to the days when criticism of elected officials was a criminal offense. If people think that cannot happen, it did happen in 1798 when the Alien and Sedition Acts were passed--and that is since our country was formed and since our Constitution has been governing our relationships.

Yet the supporters of this constitutional amendment say this amendment is necessary for democracy. That is outrageous. The only existing right the amendment says it will not harm is freedom of the press. So Congress and the States could limit the speech of anyone except the corporations that control the media. In other words, under this amendment, some corporations are OK and other corporations are not OK. That would produce an Orwellian world in which every speaker is equal, but some speakers are more equal than others. Freedom of the press has never been understood to give the media special constitutional rights denied to others.

Even though the amendment by its terms would not affect freedom of the press, I was heartened to read that the largest newspaper in my State, the Des Moines Register, editorialized against this proposed constitutional amendment. They cited testimony from the Judiciary Committee hearing, and they recognized the threat the proposed amendment poses to freedom.

But in light of recent Supreme Court decisions, an amendment soon may not be needed at all. Four Justices right now would allow core political speech to be restricted. Were a fifth Justice with this same view to be appointed, there would be no need to amend the Constitution to cut back on this political freedom.

Justice Breyer's dissent for these four Justices in the McCutcheon decision does not view freedom of speech as an end in itself, as was so important to our Founding Fathers. He thinks free political speech is about advancing, in his words, ``the public's interest in preserving a democratic order in which collective speech matters.''

To be sure, individual rights often do advance socially desirable goals, but our constitutional rights do not depend on whether unelected judges believe they advance democracy as they conceive it. Our constitutional rights are individual. They are not ``collective''--the word the Justice used. Never in 225 years has any Supreme Court opinion described our rights as collective. Our rights come from God and not from the government or from the public, and if they did, they could be taken away from us at any time. So I don't put much stock in the comment from one Justice quoted on the floor today that the Court's campaign finance decisions are wrong.

Consider the history of the last 100 years. Freedom has flourished where rights belonged to individuals that governments were bound to respect. Where rights were collective and existed only at the whim of a government that determines when they serve socially desirable purposes, the results in those countries have been literally horrific.

We should not move even 1 inch in the direction the liberal Justices and this amendment would take us. The stakes could not be higher for all Americans who value their rights and their freedoms.

Speech concerning who the people's elected representatives should be,

speech setting the agenda for public discourse, speech designed to open and change the minds of our fellow citizens, speech criticizing politicians, speech challenging government policies--all of these forms of speech are vital rights. This amendment puts all of those examples in jeopardy upon penalty of imprisonment.

It would make America no longer America.

Contrary to the arguments of its supporters, the amendment would not advance self-government against corruption and the drowning out of voices of ordinary citizens. Quite the opposite. It would harm the rights of ordinary citizens, individually and in free association, to advance their political views and to elect candidates who support their views. By limiting campaign speech, it would limit the information voters receive in deciding how to vote, and it would limit the amount people can spend on advancing what they consider to be the best political ideas.

Its restrictions on speech apply to individuals. Politicians could apply the same rules to individuals who govern corporations. Perhaps individuals cannot be totally prohibited from speaking, but the word ``reasonable'' is in this amendment. Reasonable limits can mean almost anything. Incumbents likely would set a low limit on how much an individual can spend to criticize him. Then the individual will have to risk criminal prosecution in deciding whether to speak, hoping a court would later find the limit he or she exceeded was unreasonable. That would create not a chilling effect on speech but a freezing effect.

This does not further democratic self-government like we are used to in this country.

When supporters such as the Senator from Illinois say that those who spend money in campaigns silence their critics, they have it exactly backwards. One person speaking does not silence anyone, but the government prosecuting people for speaking does.

My friend says that candidates, unlike individual groups, ``abide by strict rules on . . . how much is being spent.'' This is simply not so. That Senator is factually wrong. The rules are the same. The First Amendment requires that candidates be able to spend as much as they want. That is true for individuals, corporations, and unions as well. Individuals are limited in current law on how much they can contribute to candidates. Corporations cannot contribute to candidates at all.

The rules for expenditures are different. Candidate expenditures are expenditures by others independent of the candidate and are unlimited because they are simply free expression. Individuals and corporations cannot and, in fact, do not make unlimited campaign contributions under current law.

My friend also discussed fraud in voting, which he says does not exist, and opposed voter ID laws. The amendment before us has nothing to do with voting. Even if it did, polls consistently show that about 75 percent of Americans support a requirement that voters produce photo

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

Mr. President, with all the problems facing the country and the world, the majority has decided the time has come to cut back on the Bill of Rights to be amended for the first time in our history.

We hear from the other side repeatedly that they revere the Constitution. But they want to restrict the core of free speech. That is speech that allows a self-governing people to choose in elections the people who will represent them. This proposed amendment would enshrine in our Constitution the ability of elected officials to criminally punish those who would dare to criticize them more than the elected officials think is reasonable.

Today Americans are free to spend unlimited money on behalf of candidates and political issues and messages of their choice. The amendment being proposed would put those who would engage in political speech on notice that they may be prosecuted for being active citizens in our democracy. That threat of criminal prosecution would not just chill speech, it would freeze political speech. This proposed amendment would be the biggest threat to free speech that Congress would have enacted since the Alien and Sedition Acts of 1798.

The First Amendment creates a marketplace of ideas. When people disagree on political speech, competing voices respond to each other and the public then decides. When speech is free, people are not shut up with the threat of jail if the government thinks they speak too much.

Since the 1970s, the Supreme Court has ruled repeatedly that because effective speech can only occur through the expenditure of money, government cannot restrict campaign expenditures by candidates or anybody else. The Court has recognized that effective campaign speech requires that individuals have the right to form groups that

might actually spend money on campaign speech.

The proposed amendment is very radical. It would not overturn just 1 or 2 but it would overturn 12 Supreme Court decisions. That was the testimony before the Judiciary Committee of the country's foremost First Amendment lawyer, Floyd Abrams.

The other side may think the Senate can simply filibuster the motion to proceed and then move on to some other political vote they may want to have us take. Proposals to amend our fundamental charter of liberty, the Bill of Rights, should be treated more seriously. We should have debate on this important amendment. The majority should be made to answer for why they want to silence their critics under threat of criminal prosecution.

I look forward to supporting the vote to move to that debate, and I now yield the floor.

Madam President, the majority leader has brought a $3.5 billion emergency supplemental spending bill to the floor at the request of President Obama. This bill, while it shaves off $1 billion from the President's original request, is still a blank check that does not solve the crisis along our southern border.

This Democratic spending bill isn't a solution, and it is not a reasonable or responsible request. The majority in the Senate want taxpayers to fund a bandaid that is needed because of the President's own policies and practices.

Not only does the President want a blank check, but he wants unfettered authority to keep people unlawfully in the country from being returned to their home country. While we are facing a crisis, President Obama is looking at ways to weaken our immigration laws.

I understand that there are a variety of reasons that people come here--to be with family, to find work, and to have a better life. We are a compassionate country, and we provide a safe haven for people who need it. But we are also a country based on the rule of law.

That rule of law has been a principle of our country since its founding. This principle means that the government will enforce the laws it writes. People need to be able to trust their government and trust that it will be fair.

Today, people don't trust the government to enforce the laws. They see lawlessness at the border. Individuals--including both children and adults--are crossing the border without repercussions, and instead of taking responsibility for it, the President wants to fuel the fire and provide them with more benefits.

Instead of providing a blank check, Republicans have come forward with solutions. Today, Senators Cornyn, McConnell, Flake and I are introducing a humanitarian solution to the problem. We provide funding while changing the law to ensure speedy repatriation of unaccompanied minors to their home country.

We provide equal treatment to young children of noncontiguous countries to voluntarily return to their home country when apprehended by a border agent. Today, these young people can't voluntarily return. They wait 6 or 12 months until they go before an immigration judge. They are released, and we can only hope that they will show up for their court date.

Our bill provides a new and special process for unaccompanied children to have an immediate court proceeding. This new process would be conducted within 7 days, and children would remain in protective custody.

We also require expedited removal--meaning, no opportunity for formal removal proceedings--of criminals, gang members, those who have previously violated our immigration laws, and those who have fraudulently claimed to be an unaccompanied alien child. Expedited removal is a tool that will help border agents return people who don't have a right to be here, and it will avoid an influx of individuals going through our lengthy court system.

Our efforts, unfortunately, are only worthwhile if the home countries cooperate. We would require the President to certify that the Governments of El Salvador, Guatemala, and Honduras are cooperating in taking back their nationals. Moreover, we tie taxpayer dollars to their cooperation.

In addition to fixing the immigration court system for children, our alternative approach requires information sharing between Federal partners, including the Departments of Homeland Security and Health and Human Services.

It requires information sharing between the Federal Government and States, providing transparency and notice to States about individuals released. This administration has an abysmal record with transparency, and many States are left wondering how they are going to deal with the influx of undocumented children in their schools and health systems.

By the end of this fiscal year, up to 90,000 children will have entered the country. People are rightly concerned that they are being released into our communities. They are also being released to nonrelatives and people without lawful immigration status. Our bill fixes that. It requires children to be in the government's protective custody unless their parent is in legal status and undergoes a criminal background check.

Our bill prohibits the government from placing children with sex offenders or traffickers. Doesn't that just make sense. We are talking about vulnerable young people, and we need to be careful about who is taking custody of them.

Why are these young people coming? Aside from President Obama's weak policies, there is reason to believe that they are being trafficked and used as a commodity by drug traffickers. There are serious gang issues in some of these countries. And these issues are seeping into our country.

Our bill ensures that alien gang members are not provided a safe haven in the United States by rendering them inadmissible and deportable, requiring the government to detain them, and it prohibits alien gang members from gaining U.S. immigration benefits such as asylum or temporary protected status.

Border Patrol agents are being strained during this crisis. They are being taken off the line to care for children and adults. States along the border are stepping up and paying the price. Our bill supports State and local governments by reimbursing the costs they have had to bear.

Our bill ensures that Customs and Border Protection agents are provided access to Federal lands along the border. It also increases the penalties for smuggling offenses.

Finally, our bill deals with the lawless policies of this President and his administration. Over the last few years, the President has shown an astonishing disregard for the Constitution, the rule of law, and the rights of American citizens and legal residents. He has made promises and threats to go around Congress by using his phone and pen.

Well, today we are exercising our constitutional right in cutting off funding for the President to expand his administrative amnesties. Our bill would stop him from expanding the deferred action for childhood arrivals. It would stop other legalization programs that President Obama is contemplating. Congress has a role to play in reforming our immigration system. He should not circumvent the process and go against the will of the American people.

Again, our bill is a reasonable alternative to a blank check. We have a solution that provides due process for minors who illegally enter our country. We are being responsible and showing leadership on this issue, and I encourage my fellow colleagues to seriously consider our proposal so that we can humanely deal with this crisis.

I request the yeas and nays.

Mr. President, I ask unanimous consent that Kelli Andrews and Carter Burwell, who have been detailed to my staff, be granted floor privileges for the remainder of this Congress.

Mr. President, today I come to the floor to speak about the unconscionable way in which the Drug Enforcement Administration treated Daniel Chong, a San Diego college student, back in 2012. Unfortunately, the American people still do not know all the facts. They do not know what lasting changes are being made to make sure something like this never happens again. And they do not know what is being done to hold the DEA agents involved accountable because if people are not held accountable, there are not going to be any changes made. Most of the time, for people to be held accountable, heads have to roll, and there is no evidence that is the case in this particular case. But here is what we do know. It is a story that you might expect to hear set in some Third World country but never in the United States of America. So here it is.

Back in April 2012, Daniel Chong, a college student at the University of California, San Diego, was arrested by law enforcement conducting a sweep for drugs at a college party. He was taken into custody by the DEA and transported to the local DEA field office. He was questioned by the agents who had arrested him, and the agents apparently concluded that there was no basis to charge him with a crime. The young man may well have simply been in the wrong place at the wrong time.

The agents told him he was going to be released. But Daniel Chong was not

released. Instead, he was taken back to a holding cell in handcuffs, and he was left there for dead for 5 days--5 days without food, 5 days without water, 5 days without sunlight, 5 days without any basic necessities of life, in a holding cell not much larger than a bathroom stall. He cried out for help. He kicked and banged on the door of the cell but to no avail. He became so desperate and dehydrated that he even drank his own urine in an effort to survive. Incredibly, the one thing Daniel Chong found in his cell that he tried to live on turned out to be some methamphetamine. That is right, he found an illegal drug in the DEA's own holding cell. Apparently, it was never searched before Mr. Chong was tossed inside. It got so bad that this young man tried to kill himself. He tried to carve the words ``sorry Mom'' into his own skin. He intended it to be the last message for anyone to pass on who might one day discover his lifeless body in that DEA holding cell.

After 5 days someone finally responded to Daniel Chong's call for help. He was taken immediately to the hospital. He was found to be suffering from extreme dehydration, hypothermia, kidney failure, and cuts and bruises on his wrists. It took 4 days to nurse him back to health.

This all occurred in April 2012. Soon after I learned of it, I sent a letter to the DEA Administrator demanding to know what could have led to such a calamity. I asked how, in a modern age of computers and surveillance cameras, it was possible that an innocent person could be left for dead in a DEA holding cell. I asked about the DEA policies and procedures in place to help prevent this from ever happening again. And I asked whether those responsible for what happened to Mr. Chong were going to be held accountable.

It took the DEA more than a year to respond to my questions--more than a year. In June 2013 the DEA trotted out the familiar response we so often hear from bureaucrats when they do not want to tell you what really happened. They said at that time the DEA could not comment on many aspects of the matter because the Department of Justice's own inspector general was conducting a review. The DEA assured me that, in their words, an ``interim'' policy had been adopted to make sure no other innocent people would be abandoned in a prison cell and left for dead. But the American people would have to wait for a permanent policy change and a full accounting until after the inspector general finished its investigation.

Just a month later, in July 2013, the DEA announced it would be handing over $4.1 million to Daniel Chong to settle his lawsuit. Mr. President, $4.1 million of taxpayer money--almost $1 million for each day he spent forgotten and also ignored in that dark and drug-infested DEA holding cell.

Now, up to date, finally, just this month and more than 2 years after this debacle, the Department of Justice's inspector general finally issued its report of the investigation. We still do not know the full truth about what happened to Daniel Chong. In many ways the inspector general's report raises more questions than it answers, and what the report does tell us is quite disturbing.

According to the report, Daniel Chong was not just forgotten by the agents who arrested him; he was ignored by other DEA employees who knew he was there but assumed he was somebody else's problem.

And the report suggests the DEA may have tried to cover up the whole event.

According to the report, there were three DEA agents and a supervisor directly responsible for making sure this young man was not abandoned in that holding cell. So it is obvious these four agents failed miserably in their responsibilities. But it gets even worse. According to the report, at least four other agents passed in and out of the holding cell area during the 5 days Daniel Chong was imprisoned. These four agents admitted they had either seen or heard Chong in his cell, but they simply assumed someone else was going to take care of him--in other words, he was somebody else's problem.

Daniel Chong was arrested on a Saturday. One of those agents saw him in the cell on Sunday, and one saw him there on Monday, and another two agents either saw him or heard him on Wednesday, but nothing compelled these law enforcement officers to address his plight because they did not believe anything was amiss.

I hope to all my colleagues that what I just told you is very difficult to believe.

In addition, Daniel Chong's holding cell was near a workspace area used by dozens of DEA personnel. According to the report, anyone in that workspace could have clearly heard banging and yelling from inside the cell.

But not a single one of the 25 DEA employees interviewed by the inspector general who worked this area could recall hearing any unusual noises during the time Daniel Chong was imprisoned there. So this is very difficult to believe. It defies all common sense. It contradicts what Daniel Chong says he did by crying out for help and banging on his holding cell door. It contradicts what his injuries tell us he did. It contradicts what anyone left in a holding cell without the basic necessities of life for days would do.

Why did no one respond to Daniel Chong's cries for help? The report does not even attempt to answer that question.

These eight DEA agents were in some way responsible for this young man's wrongful captivity. The report does not say what happened to these agents. This is where you get into accountability. Who is responsible? Are heads going to roll so this behavior changes? Are these agents still working for the DEA? Have they been disciplined? Are they still arresting other people, tossing them behind bars and leaving them for dead?

The problem does not stop here. According to the report, the DEA may have tried to cover up this entire event. The inspector general learned about what happened to Daniel Chong from an anonymous whistleblower who called one of its field offices.

This is another example of the value of whistleblowers, heroes who stand up for what is right, sometimes at great personal risk. According to the IG's report, the whistleblower indicated that the DEA ``was trying to contain this matter locally.'' That is another way of saying, essentially, that a coverup could be in the works.

Incredibly, as it turns out the DEA office in San Diego assigned the very agents who were responsible for Daniel Chong's captivity to process the holding cell area where Chong was held for days. That is right. The agents who left Chong behind bars for 5 days were assigned to investigate their own egregious mistakes--kind of like the fox guarding the chicken house.

DEA management also decided that it was going to conduct its own internal management review of the incident; that is, it would conduct it is own interviews and investigations before DEA notified anybody else. DEA management justified this decision by telling the inspector general that it assumed the conduct ``which resulted in Chong's detention did not amount to misconduct and was not criminal.'' But, of course, as the inspector general found, it should have been readily apparent to DEA management that this was not true. Of course, DEA management may have calculated that undertaking its own investigation could head off an independent outside review; indeed, perhaps the investigation could even be contained ``locally.'' How many other DEA misdeeds have been similarly contained?

So it is obvious what happened. It is outrageous. How it was handled is outrageous. We need to know more about why the inspector general was not called in immediately--that is, even as DEA policy requires--rather than having people who conducted the wrongdoing investigating, in a sense, themselves. We need to know if indeed this was a deliberate attempt to sweep this dereliction of duty under the rug.

The DEA is entrusted with a lot of responsibility and authority. We ask the DEA to enforce our drug laws. We ask the DEA to protect our communities. The DEA has a very tough job. The Obama administration is not making that job any easier because this administration is undermining the DEA by turning a blind eye to illegal marijuana trafficking. It is trying to release convicted drug dealers from our prisons. It is trying to reduce the criminal penalties and minimum mandatory sentences for drug dealers who are still on the streets peddling death in our communities. So I understand

these are very challenging times for the DEA.

When the DEA or any law enforcement agency neglects its responsibilities and then possibly even covers up wrongdoing, then those who are responsible must be held accountable. So I have to ask, if the employees at DEA are not held accountable, what needs to happen in order for action to be taken? Do we need to wait until someone dies?

The DEA's conduct in this case is inexcusable. After 2 years and more than $4 million of taxpayer money, the DEA owes the American people more answers. The American people deserve answers to the questions I posed in my letter to the DEA back in May of 2012, so, not getting a proper answer, I will be writing to the DEA again this week to pose additional questions, including about the possibility of a coverup.

Most importantly, the American people deserve to know that those responsible for the detention and the mistreatment of Daniel Chong will be held accountable for this horrendous event.

Constitutional Amendment

I come to the floor also to discuss a constitutional amendment the Judiciary Committee has just reported to the Senate. The amendment would amend the Bill of Rights for the first time. Let me repeat that. The amendment would amend the Bill of Rights for the first time. I think that is a slippery slope. It would amend one of the most important of those rights--the right of free speech.

The first amendment provides that Congress shall make no laws abridging freedom of speech. The proposed amendment would give Congress and the States the power to abridge free speech. It would allow them to impose reasonable limits--whatever the word ``reasonable'' might mean at a particular time--on contributions and expenditures. By so doing, that has to be putting limits on speech, particularly speech that is very valuable in this country--political speech; in other words, trying to influence the direction of our country through elections. It would allow speech by corporations that would influence the elections to be banned altogether.

This amendment is as dangerous as anything Congress could pass. Were it to be adopted--I believe it will not be adopted--the damage done could be reversed only if two-thirds of both Houses of Congress voted to repeal it through a new constitutional amendment. Then, of course, three-fourths of the States ratify that new amendment.

I would like to start with some basic first principles. The Declaration of Independence states that everyone is endowed by their Creator with unalienable rights that governments are created to protect. Those preexisting rights include the right to liberty.

The Constitution was adopted to secure the blessings of liberty to Americans. Americans rejected the view that the structural limits on government power contained in the original Constitution would adequately protect the liberties they had fought the Revolution to preserve. So when the people came to the conclusion that the original Constitution would not protect their liberties, the people living in the States at that time insisted on the adoption of this very important Bill of Rights.

The Bill of Rights protects individual rights regardless of whether the government or the majority approve of their use. The first amendment in the Bill of Rights protects freedom of speech. That freedom is basic to self-government. Other parts of the Constitution foster equality or justice or representative government, but it is the Bill of Rights--that Bill of Rights is only about individual freedom. Free speech creates a marketplace of ideas in which citizens can learn, debate, persuade fellow citizens on the issues of the day. At its core it enables the citizenry to be educated, to cast votes, to elect our leaders.

Today freedom of speech is threatened as it has not been in many decades. Too many people will not listen and debate and persuade. Instead, they want to punish, intimidate, and silence those with whom they might disagree.

A corporate executive who opposes same-sex marriage--the same position that President Obama held at the very time--is to be fired. Universities that are supposed to foster academic freedom cancel graduation speeches by speakers some students find offensive. Government officials order other government officials not to deviate from the party line concerning proposed legislation.

This resolution filed by the Judiciary Committee, S.J. Res. 19, is cut from the same cloth. It would amend the Constitution for the first time to diminish an important right of Americans; that is, a right contained in the Bill of Rights. In fact, it would cut back on the most important of these rights--core free speech about who should be elected to govern us.

The proposed constitutional amendment would enable government to limit funds contributed to candidates and funds spent influencing the election. That would give the government the ability to limit speech. The amendment would allow the government to set the limit at low levels. There could be little in the way of contributions or election spending. There could be restrictions on public debate on who should be elected. Incumbents would find that outcome--well, you guessed it--to be very successful because it protects incumbents. They would know that no challengers could run an effective campaign against them.

What precedent would this amendment create? Suppose Congress passed limits on what people could spend on abortions or what doctors or hospitals could spend to perform them? What if Congress limited the amount of money people could spend on guns or limited how much people could spend of their own money on health care?

Under this amendment Congress could do what the Citizens United decision rightfully said it could not--make it a criminal offense for the Sierra Club to run an ad urging the public to defeat a Congressman who favors logging in the national forest or for the National Rifle Association to publish a book seeking public support for a challenger to a Senator who favors a handgun ban or for the ACLU to post on its Web site a plea for voters to support a Presidential candidate because of his stance on free speech. That should, for everybody, be a frightening prospect.

Under this amendment, Congress and the States could limit campaign contributions and expenditures without even complying with the existing constitutional provisions. Congress could pass a law limiting expenditures by Democrats, but not by Republicans--by opponents of ObamaCare, but not by its supporters.

What does the amendment mean when it says that Congress can limit funds spent to influence elections? If an elected official says he or she plans to run again, long before any election, Congress, under this amendment, could criminalize criticism of that official as spending to influence the elections.

A Senator on the Senate floor appearing on C-SPAN, free of charge could, with immunity, defame a private citizen. The Member could say that the citizen was buying the elections. If the citizen spent what Congress has said was too much money to rebut the charge, he could go to jail. We would be back to the days when criticism of elected officials was a criminal offense during the Alien and Sedition Acts. Yet its supporters say that this amendment is necessary to preserve democracy.

The only existing right that the amendment says it will not harm is freedom of the press. So Congress and the States could limit the speech of anyone except corporations that control the media. That would produce an Orwellian world in which every speaker is equal but some speakers are more equal than others.

Freedom in the press has never been understood to give the media special constitutional rights denied to others. Even though the amendment by its terms would not affect freedom of the press, I was heartened to read that the largest newspaper in my State, the Des Moines Register, editorialized against this amendment amending the Bill of Rights. They cited testimony from our hearing, and they recognize the threat that the proposed amendment poses to freedom.

But in light of recent Supreme Court decisions, an amendment soon may not be needed at all. Four Justices right now would allow core political speech to be restricted. Were a fifth Justice with this view to be appointed, there would be no need to amend the Constitution to cut back on the freedom.

Justice Breyer's dissent for these four Justices in the McCutcheon decision does not view freedom of speech as an end in itself the same way that our Founding Fathers did. He thinks free political speech is about advancing ``the public's interest in preserving a democratic order in which collective speech matters.''

To be sure, individual rights often advance socially desired goals, but our constitutional rights do not depend on whether unelected judges believe they advance democracy as they conceive it. Our constitutional rights are individual, not collective, as Justice Breyer says. Never in 225 years has any Supreme Court opinion described our rights as collective. Our rights come from God and not from the government or the public. At least that is what the writers of the Declaration of Independence said.

Consider the history of the past 100 years. Freedom has flourished where rights belong to individuals that governments were bound to respect. Where rights are collective and existed only at the whim of a government that determines when they serve socially desirable purposes, the results have been literally horrific: no freedom, no democracy.

We should not move even 1 inch in that direction that the liberal Justices did and that simultaneously this amendment would take us. The stakes could not be higher for all Americans who value their rights and freedoms. Speech concerning who the people's elected representative should be, speech setting the agenda for public discourse, speech designed to open and change the minds of our fellow citizens, speech criticizing politicians, and speech challenging government and its policies are all vital rights. This amendment puts all of them in jeopardy upon the penalty of imprisonment. It would make America no longer America.

Contrary to the arguments of its supporters, the amendment would not advance self-government against corruption and the drowning out of voices of ordinary citizens. No, just the opposite. It would harm the rights of ordinary citizens--individually, as well as in free associations--to advance their political views and to elect candidates who support their views.

By limiting campaign speech, it would limit the information that voters receive in deciding how to vote. It would limit the amount that people can spend on advancing what they consider to be the best political ideas. Its restrictions on speech apply to individuals. Politicians could apply the same rules to individuals who govern corporations. Perhaps individuals cannot be totally prohibited from speaking, but the word ``reasonable'' is in the amendment but that word limits can mean anything. Incumbents likely would set a low limit on how much an individual can spend to criticize them; that is, incumbents protecting their office. Then the individual would have to risk criminal prosecution in deciding whether to speak, hoping that a court would later find that the limit he or she exceeded was unreasonable.

This would create not a chilling effect on speech, but, in fact, a very freezing effect.

This does not further democratic self-government. The amendment would apply to some campaign speech that cannot give rise to corruption.

For instance, under current law, an individual could spend any amount of his or her own money to run for office. An individual could not corrupt himself with his own money and could not be bought by others if he or she did not rely on outside money, but the amendment would allow Congress and the States to strictly limit what even an individual could contribute to or spend on his or her own campaign. That would make beating the incumbent, who would benefit from the new powers to restrict speech, much more difficult.

In practice, individuals seeking to elect candidates in the democratic process must exercise their First Amendment freedom of association to work together with others. This amendment could prohibit that altogether.

It would permit Congress and the States to prohibit ``corporations or artificial entities . . . from spending money to influence elections.'' Now, that even means labor unions. That means nonprofit corporations such as the NAACP Legal Defense and Educational Fund. That means political parties.

The amendment will allow Congress to prohibit political parties from spending money to influence elections. If they can't spend money on elections, then they would be rendered as a mere social club.

The prohibition on political spending by for-profit corporations also does not advance democracy.

Were this amendment to take effect, a company that wanted to advertise beer or deodorant would be given more constitutional protection than a corporation of any kind that wanted to influence an election.

The philosophy of the amendment is very elitist. It says the ordinary citizen cannot be trusted to listen to political arguments and evaluate which ones are persuasive.

Instead, incumbent politicians interested in securing their own reelections are trusted to be high-minded. Surely, they would not use this new power to develop rules that could silence not only their actual opposing candidates, but associations of ordinary citizens who have the nerve to want to vote them out of office.

As First Amendment luminary Floyd Abrams told our committee: ``[P]ermitting unlimited expenditures from virtually all parties leads to more speech from more candidates for longer time periods, and ultimately more competitive elections.''

Isn't that the goal that we should seek through the political process? Having parties led to more speech from more candidates for longer periods of time and ultimately more competitive elections.

Incumbents are unlikely to use this new power to welcome that competition.

In fact, the committee report indicates that State and Federal legislators are not the only people who would have the ability to limit campaign speech under this amendment.

It says that the States and the Federal Government can promulgate regulations to enforce the amendment. So you have unelected State and Federal bureaucrats, who do not answer to anyone, being empowered to regulate what is now the freedom of speech of individuals and entities that for 230 years has been protected by the Bill of Rights. That all makes a mockery of the idea that this proposed amendment would advance democracy and that argument is used by its proponents.

Another argument for the amendment--some voices should not drown out others--also runs counter to free speech. It also is elitist. It assumes that voters will be manipulated into voting against their interests because large sums will produce so much speech as to drown out others and blind them to the voters' true interests.

Tell that to the voters in Virginia's Seventh Congressional District. That incumbent Congressman outspent his opponent 26 to 1. Newspaper reports state that large sums were spent on independent expenditures on the incumbent's behalf, many by corporations. No independent expenditures were made for their opponent, but yet his opponent won.

That doesn't seem to be drowning out people making their own decisions in the ballot box, and it is not some undue influence that proponents of this amendment want you to believe that this constitutional amendment can do away with undue influence. Just think, 26 to 1, trying to convince people to vote for an incumbent Congressman, and he loses.

Let me say this. The exact amount of money that the winner of that primary spent was just over $200,000 to win 55 percent of that vote.

Since a limit that allowed a challenger to win would presumably be reasonable under the amendment, Congress or the States could limit spending on House primaries to as little as $200,000, all by the candidate with no obviously unnecessary outside spending allowed.

The second set of unpersuasive arguments concerns the Supreme Court decision Citizens United. That case has been mischaracterized as activist.

Again, I wish to say what Mr. Abrams testified before the committee. He said that case continues a view of free speech rights by unions and corporations that was expressed by President Truman and by liberal Justices in the 1950s.

What the Citizens United overruled was the departure from precedent. And Citizens United did not give rise to unfettered campaign spending.

The Supreme Court case in 1976, in Buckley v. Valeo, ruled that independent expenditures could not be limited. That decision was not the work of a supposed conservative judicial activist. Wealthy individuals have been able to spend unlimited amounts since then. And corporations and others have been able to make unlimited donations to 501(c)(4) corporations since then as well.

As Mr. Abrams 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.

And it is this amendment, not Citizens United, that fails to respect precedent. It does not simply overturn one case. As Mr. Abrams responded, it overturns 12 cases, some of which date back almost 40 years. As the amendment has been redrafted, it may be 11\1/2\ now, depending upon what the word ``reasonable'' means.

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. Some members of the committee may not like the long-established broad protections for free speech that the Supreme Court has reaffirmed, but that does not mean there are five activists on the Supreme Court. The Court ruled unanimously in more cases this year than it has in 60 or 75 years, depending on whose figures you use. Its unanimity was frequently demonstrated by rejecting arguments of the Obama administration.

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

The fact that the committee reported this amendment is a very great testimony to the wisdom of our Founding Fathers in insisting on and adopting the Bill of Rights in the first place. As 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 rights to free speech. We must not allow officials to diminish and ration any one of the Bill of Rights, but especially the first one, which is so important. We must not let the proposal become the supreme law of the land.

I yield the floor.

Madam President, last week I explained why I oppose the nomination of Pamela Harris to the Fourth Circuit. I wish to raise several other aspects of her record that I find troubling, but before I address the specifics of this nominee, I need to place this nomination in context.

Last November, when the distinguished majority leader decided to toss aside an institution almost as old as the Senate itself, he claimed that breaking the rules was necessary because of an imminent crisis in the DC Circuit--not a judicial emergency; the numbers made it plain there was no judicial emergency, but a crisis that required radical action. That was after we had already confirmed the President's first nominee to the DC Circuit by a unanimous vote of 97 to 0. As I said in November, there was no crisis.

According to the Administrative Office of the U.S. Courts, as of September 2013, the DC Circuit had 149 pending appeals for each active judge, by far the lightest caseload of any of the Nation's 13 circuit courts of appeals. The number of cases filed in that circuit decreased by almost 5 percent during the year 2013. So the only crisis the distinguished majority leader was responding to was one he and the Obama White House had manufactured. Instead, in an exercise of raw political power he decided to stack the DC Circuit by ramming through three of the President's nominees simultaneously. It turns out that the crisis was just an excuse for a political power grab, plain and simple, and everyone knew it. Despite the denials from the other side, all the signs were there for anyone and anybody who cared to see those signs.

In May of last year the distinguished majority leader said the DC Circuit was ``wreaking havoc with the country'' and that he was going ``to do something about it.'' I am not going to recount how many of my Democratic colleagues repeatedly blocked President Bush's nominees to that court when they were in the minority. Those were and remain nominees of the highest quality who deserved a vote but never got such a vote. Suffice it to say then that during the Bush administration, when the parliamentary shoe was on the other foot, the distinguished Democratic leader claimed the filibuster was a sacred institution. Times surely have changed.

So now after the other side has succeeded in stacking the DC Circuit, Democratic appointees outnumber Republican appointees by a 7-to-4 majority among active judges. The distinguished majority leader wasn't going to leave anything to fortune and he rammed those three nominees through.

I am recounting how the majority leader took the Senate nuclear because it all came to another head last week. You see, on Tuesday the three-judge panel of the DC Circuit decided the Halbig v. Burwell case, the most significant ObamaCare ruling since the Supreme Court upheld the constitutionality of the law in 2012. Halbig is a straightforward case of statutory interpretation under the Administrative Procedures Act and the DC Circuit panel got it right. As the panel held, the text of the Affordable Care Act states on its face that tax credits are available only to individuals--individuals--who purchase their insurance plans through an exchange established by a State. So the IRS cannot make the tax credits available as the law clearly says to those who bought plans through the Federal exchange. You don't have to take my word for it. Putting aside the ample evidence mustered by the DC Circuit's opinion, as early as 2009, the former Democratic chair of our Finance Committee suggested that tax credits were aimed to cover only State exchanges. Additionally, economist Jonathan Gruber, one of the key architects of ObamaCare, has been very clear on this question.

According to the New York Times, Mr. Gruber's role in designing ObamaCare was so crucial that ``the White House lent him to Capitol Hill to help Congressional staff members draft the specifics of the legislation.''

What did the administration's own expert economist have to say about the availability of tax credits under ObamaCare? Here is his quote from 2012 explaining how credits were intended as a political pressure tactic on our 50 States:

I think what's important to remember politically about

this, is if you are a state and you don't set up an Exchange,

that means your citizens don't get their tax credits. But

your citizens still pay the taxes that support this bill. So

you're essentially saying to your citizens, you're going to

pay all the taxes to help all the other states in the

country. I hope that's a blatant enough political reality

that states will get their act together and realize that

there are billions of dollars at stake here in setting up

these Exchanges, and that they'll do it. But you know, once

again, the politics can get ugly around this.

Mr. Gruber is right. The politics have gotten very ugly around this.

After the panel ruled against the HHS Secretary in Halbig last week, it only took the administration about an hour to announce that it would seek en banc review by the full DC Circuit. That is where the majority's power grab is paying off. Breaking the Senate's longstanding rules and stacking the DC Circuit was a premeditated political calculation from the very beginning. So last week when asked whether his decision to stack the courts was vindicated by the Halbig decision, the distinguished majority leader told the press: ``I think if you look at simple math, it does. Simple math, you bet.''

Simple math was the other side's calculation. The simple math is stacking the DC Circuit with leftwing judges who will do in a court what the President and the other side have been unable to do through the legislative process. It is what they have been unable to do through the proper channels of government designated by the Constitution to resolve these issues through the Congress. But the President has been complaining for years that he cannot accomplish his legislative agenda that way, so he went looking for alternatives to that constitutional process, where the Constitution says the legislative branch shall legislate, and the Constitution says that the executive branch should only execute. Faithfully executing the laws is not something this President concerns himself with. By now everybody has heard the President's boast about his pen and his phone. As of July 18 of this year, the President wielding that pen and dialing that phone has unconstitutionally amended ObamaCare by executive or administrative fiat a grand total of 24 times, and that could be a very conservative estimate of everything he has done. The President's unilateral Executive actions were not minor. They unconstitutionally altered basic aspects of the law's design and operation. Things as fundamental as delaying the individual mandate, ordering the IRS to make subsidies available through Federal exchanges in direct contravention of the law, extending noncompliant plans, delaying the employer mandate--not once but twice--and exempting unions from reinsurance fees which will create costs that will be passed on to consumers who aren't fortunate enough to be employed by the President's political allies--all of these and more in violation of law. By his own admission the President has used these aggressive and lawless tactics because he cannot prevail in the legislative process. But time has shown that Executive action has been insufficient to realize a failed legislative agenda. So the

President turned to the courts to do what he couldn't otherwise do legislatively, what he couldn't do within constitutional constraints, because it is all about just ``simple math.''

That is not the way the Constitution works. High school students know otherwise. The President isn't entitled to a rubberstamp from a Congress on unpopular legislation, and he is not entitled to stack the courts with radically liberal judges when his political initiatives fail legislatively.

So I want the other side to remember how politics works when they inevitably find themselves in the minority once again. I want them to remember the new realities of the so-called simple math that they resorted to in order to accomplish legislative projects through judicial proxies instead of through the democratic process.

The DC Circuit wasn't the only appeals court to rule on the ObamaCare subsidies issue last week, and that brings me back to Professor Harris's nomination that we will be voting on today. The Fourth Circuit has ruled, but in contrast to the DC Circuit, it upheld the administration's subsidies regime in a case called the King case, and that is where this nominee comes in. As I explained to my colleagues last week, the timing of the vote on this nomination is not coincidence. Professor Harris is being fast-tracked to the Fourth Circuit just in time for another en banc appeal, should one materialize.

The professor, one of the President's most stridently liberal nominees to date, is jumping ahead of other circuit nominees on the Executive Calendar. Why? For one simple reason: The administration is betting on more simple math to defend ObamaCare in the Fourth Circuit, just like they are betting on simple math to save them in the DC Circuit.

My colleagues need to face the facts. Professor Harris is a rock- solid vote for saving ObamaCare's unlawful subsidy regime which many commentators have described as the economic linchpin of the entire law. All we need to do is look at the nominee's record, which shows time and again how this nominee confuses politics with the law.

For years prior to her confirmation hearing she advocated a legal philosophy in which leftwing politics actively guides and actively shapes judicial decisionmaking. She has explained in detail that she believes the Constitution is made and remade over and over again by political movements at the so-called constitutionally critical junctures. So do we even need to ask whether Professor Harris thinks that passage of ObamaCare was one such critical juncture and that the law is worth preserving at all costs? The question answers itself.

Just look at Professor Harris's record. Before my colleagues vote I want them to have a clear picture of what this nominee stands for, so I am going to mention a few truly remarkable positions she has taken in addition to the many I discussed with my colleagues last week. Professor Harris is on record that extralegal considerations should influence how a judge rules. She also expressed her belief that the personal characteristics of the judge should matter as well.

I think it is fair to say that she is acutely concerned with the personal characteristics of the judge. In 2010 she even told the Los Angeles Times that the President should consider a judicial nominee's religious beliefs when filling Supreme Court vacancies, even though our Constitution says there can be no religious test for any office. She said:

It is hard for me to see religion as especially different

than all other things that presidents take into account.

I don't even know where to start with that, and perhaps the less said about it the better. But I would be interested to know which religions the nominee thinks are suitable or unsuitable for representation on the Federal bench.

I will leave you with another example of how out of mainstream this nominee is. Professor Harris is an outspoken advocate for abortion rights. Over the years she has made a number of controversial statements about abortion and the Supreme Court's abortion precedent. Shockingly, on one occasion last year she described partial-birth abortion as merely a ``late-ish'' kind of abortion. The nominee also suggested that States ``gin up medical controversies'' intentionally and in bad faith in order to justify restrictions on late-term abortions.

She denigrated restrictions on partial-birth abortion because, in her view, ``you could find one guy to say `I don't know it's safe to create medical uncertainty that will allow state regulation.' ''

Those are definitely not the views of mainstream nominees.

My colleagues need to understand this nominee's views fully before they cast their votes. This is a nominee who describes herself as a ``profoundly liberal person'' and who thinks the Constitution is a ``profoundly progressive document.'' This is a nominee who actually thinks the Constitution embodies her personal leftwing philosophy and has said it is ``pretty close to where I am.'' This is a nominee who suggested that a judicial nominee's religious faith is a valid consideration for service on the Federal bench. This is a nominee who thinks partial-birth abortion is just a ``late-ish'' kind of abortion and criticizes State partial-birth abortion laws ginned up by fake controversies and bogus data.

I explained earlier, a vote for this nominee is a vote in favor of ObamaCare, and that is why she is being hurried onto the Fourth Circuit ahead of nominees to other courts of appeal. It is the distinguished majority leader's simple math.

This is perhaps the most liberal judicial nominee we have seen from this President so far, which is why I am going to vote no on this nominee and urge my colleagues to do likewise.

I yield the floor.

Mr. President, last year, I cosponsored the United States-Israel Strategic Partnership Act of 2013. The sponsor of the bill is reintroducing the bill with some modifications. While I am again cosponsoring this new bill, I wanted to remind my colleagues of my concerns related to the visa waiver section of the bill. The Visa Waiver Program is a benefit to other countries, and they are allowed to participate after meeting certain conditions, which are laid out in statute. A section in the United States-Israel Strategic Partnership Act provides authority to the Secretary of Homeland Security to waive the requirements and allow Israel to participate in the program. Specifically, under the legislation, Israel would not have to abide by the low nonimmigrant visa refusal rate standard. As I stated previously, I am concerned about this section of the bill because it sets a precedent for other countries not to have to abide by all the terms of the program. Neither Congress or the executive branch should be making exceptions to the rules. I support the bill because it reaffirms the United States' partnership with Israel, however, we need to be cautious in relaxing the rules regarding the Visa Waiver Program.

Madam President, similar to my colleague from Maryland, I come to the floor to discuss the nomination of Professor Pamela Harris to the Fourth Circuit. I come for another reason, to give my reasons for opposition.

Contemplating my vote on this nominee has been a particularly memorable process. That is because as I reviewed the professor's writings, statements, and legal briefs, it seemed as though I was reviewing the record of not one but two nominees. The size of those two nominees' records was rather unequal. On the one hand, there is the record of the pre-nomination Professor Harris. That is the record reaching all the way back to her graduation from law school in 1990, a record rich in public statements and writings. It is a record long enough to develop a distinct and stridently left-wing philosophy. That is one record.

Then, on the other hand, there is the record of the post-nomination Professor Harris. It is a dramatically shorter record. That record only began a few weeks ago at the professor's confirmation hearing on June 24. It is a record that consists of the professor's testimony before the Judiciary Committee and of course her responses to questions for the record from my colleagues and from this Senator. It is a record of a jurist who will be faithful to the statutory text and constitutional precedents, a record with comments that could be mistaken for those of Justice Scalia or Justice Thomas.

But what is so unbelievable to me is how totally at odds the record of the pre-nomination professor is with the record of the post- nomination professor. As I said before, it is as if there were two entirely distinct nominees vying for this single seat on the Fourth Circuit.

So for the next few minutes I would like to share with my colleagues some excerpts from the record of the pre-nomination Professor Harris and some excerpts from the post-nomination professor. There is no question that the professor spent her entire legal career, before nomination to the Federal bench, that is, consistently and aggressively advocating for a liberal interpretation of the Constitution that is well outside the mainstream of constitutional jurisprudence. That is the pre-nomination record. But as I said, that all changed when she testified before the committee.

I would start with the professor's pre-nomination views on constitutional interpretation. She has spoken with unusual clarity and forthrightness on the topic. That is in part because she served for many years on the board of the left-wing American Constitution Society. That ironically named group spends a lot of time developing theories of interpretation that are designed to attack and redefine key constitutional principles. The professor was at the forefront of those discussions in many years. So how exactly did the pre-nomination Professor Harris view the sources of constitutional meaning?

Here is a statement she made before the American Constitution Society in 2008:

I just don't think that any account of the Constitution

that even seems to privilege the Constitution as it was

originally ratified is consistent with the way we should

think about the Constitution. Yes, the values, the

principles, on some level of generality, are there at the

beginning, but they take their meaning--and they should take

their meaning--from what comes after.

We should pause for a moment because she said a lot in that quote. First, we hear how the professor rejects out of hand the idea that the Constitution as originally ratified should guide its interpretation. Instead she sees only ambiguous principles. Those principles, according to the professor, are more or less empty and meaningless by themselves. That is because those principles, as she formulates them, take their meaning primarily from subsequent developments. Then the professor goes on to specify exactly what subsequent developments she is talking about.

She explains that her interpretive ``source of legitimacy most particularly,'' is ``what the People do'' at what she calls ``critical junctures,'' including ``the civil rights movement, the women's movement, the gay rights movement.'' According to the professor, these movements ``reconstitute what it is we're talking about when we talk about American constitutional tradition, when we say words like equality and liberty, when we change what they mean.''

We need to pause and unpack that statement. First, the professor explicitly identifies for herself ``a source of legitimacy'' to be used in constitutional interpretation. That source of legitimacy is not the Constitution's text, nor its structure, nor its history, nor its original intent, nor any other established interpretive method. It is something outside the law altogether, and that happens to be social and political movements.

I will put it this way: They are the social and political movements that Professor Harris chooses for inspiration. They are the social and political movements Professor Harris has decided to raise all the way to constitutional status. It is these extralegal sources that she says change the scope of the Constitution's guarantees of equality and liberty.

I am sure you are going to say this sounds as though I am making it up, but I am not. The professor literally said, ``We change what they mean.'' Who is the ``we'' the professor is talking about? I suspect it is the people in social movements that Professor Harris finds particularly inspirational. I suspect it is also the people who share her view that the Constitution's original guarantees are merely empty vessels which can be filled with whatever political or social ideas a judge might ``privilege,'' as the professor puts it.

In other contexts, Professor Harris said the meaning of the Constitution changes based on things such as ``an evolving and changing public understanding,'' ``the consequences of constitutional rulings,'' and ``the circumstances on the ground.'' Note the absence of any legal standard on that list which seems to be the basis of the rule of law or the basis of stare decisis.

I will finish up with the professor's quote.

I think that constitutional legitimacy comes, even in part,

from the fact that it does reflect these social movements and

what happens at these particular moments when the people come

together and force this kind of change in the way we think

about ourselves and what it means to be American. And I think

there's something about originalism at least as it's commonly

understood that's inconsistent with that. And that's why I'm

not an originalist, even now.

Let's recap. The Constitution derives some of its legitimacy, as the professor put it, from social movements at particular moments. Again, how are we to know which particular moments rise to the level of constitutional significance? We will have to ask Professor Harris because there is absolutely no principled or objective way of making that kind of a decision. It is certainly not a legal decision. It happens to be a matter of personal preference.

What else can we take away from that quote? Well, we also learned the professor is definitely not an originalist. She literally says: ``I'm not an originalist.'' I want you to keep that in mind because what I have to say shows how quickly she can change her views.

Let's turn now to what the post-nomination professor thinks about constitutional interpretation. As I said before, the contrast is so striking that it is almost as if we are dealing with two different nominees for the single seat on the Fourth Circuit. Does the post- nomination professor still think constitutional principles change with the times?

In a response to my question for the record, Professor Harris wrote:

I do not believe that the Constitution's provisions and

principles change or evolve, other than by the amendment

process in Article V. They are fixed and enduring and judges

are not free to change them whether by incorporating public

preferences or their own policy views.

That is astounding. It is like a night-and-day difference with the judicial philosophy I have previously quoted from the pre-nomination Professor Harris, and it is totally incompatible with the philosophy which Professor Harris has developed over the decades. Now we suddenly hear that the professor believes in unchanging and in fixed--dare I say eternal--principles that cannot be changed except by an Article V amendment.

All of a sudden there are no more social movements. All of a sudden there are no more ``critical junctures.'' All of a sudden there is no more ``what the people do.'' All of a sudden there is no more ``privileging'' or ``reconstituting''--those are her words. So no more ``privileging'' or ``reconstituting'' constitutional meaning. All of a sudden the meanings are now fixed in our Constitution. All that other stuff she previously said happens to be in the rearview mirror.

Now judges are forbidden from incorporating public preferences to change constitutional principles. Public preferences as interpreted by the judge, of course. But just a few years ago that was at the very core of her interpretative philosophy.

I have another post-nomination quote.

I would never suggest that a justice of the Supreme Court,

or any judge, should change his or her opinions based on

public opinion. That is not the way I view the role of a

judge.

That happens to be the way I view the role of a judge, and now she says that is the way she sees the role of a judge, but it is completely contrary to what she had thought for decades before this nomination.

The post-nomination Professor Harris added that courts should be ``especially cautious on social issues when the political branches and political institutions are deeply and rapidly engaged in those issues'' and ``leave as much to the democratic process.'' That statement is also a massive sea-change.

For the pre-nomination professor, the democratic process went hand- in-glove with the judicial process. Now, however, with her confirmation on the line, the post-nomination professor sees a wall between politics and the courts.

Let's return to the pre-nomination professor for another quote on judicial decisionmaking. Here is what she candidly told a gathering of the American Constitution Society about that issue in 2009:

I always feel unapologetically, you know, left to my own

devices, my own best reading of the Constitution. It's pretty

close to where I am.

Where exactly is the Constitution, in her view? She tells us flatly: ``I think the Constitution is a profoundly progressive document. I think it's born of a progressive impulse.'' Well, if that is where the Constitution is, where then is the professor? Again, there is no mystery here because she is very upfront with that answer: ``I'm a profoundly liberal person so we''--she is talking about herself and the Constitution as one--``we match up pretty well. I make no apologies for that.''

Think for a moment about what the professor is saying. I frankly cannot recall a judicial nominee who has actually expressed her belief that the Constitution embodies the nominee's personal political philosophy, but that is exactly what Professor Harris does in that statement.

Think about how she put it: The Constitution is pretty much where she is as a liberal. It is almost in sync with her views. That was a crystal-clear explanation of how the pre-nomination Professor Harris viewed her beliefs and the Constitution.

But what does the post-nomination Professor Harris have to say? At her hearing, she told our Judiciary Committee:

I do not believe that it is the view of a judge ever to

import his or her personal values into judicial

decisionmaking.

Again, the post-nomination statement is strikingly at odds with the pre-nomination views. Or, perhaps we should actually take the post- nomination statement at face value. After all, Professor Harris doesn't need to import her own views when interpreting the Constitution. As she explained, it just happens to be almost as liberal as she is. So that is a fortunate coincidence, I suppose.

What about the professor's views on a particular judicial philosophy? Remember earlier her pre-nomination criticism of originalism and her assertion that she is definitely not an originalist.

That happens to be out the window as well.

Here is her post-nomination testimony: ``I do not reject originalism as an interpretive method.''

Those are just a few of the contradictory quotes from the pre- and post-nomination Professor Harris which strikingly illustrate almost unbelievable inconsistencies in her judicial philosophy and understanding of constitutional interpretation.

The quotations also point to issues that are deeply troubling about this nominee, and I'll discuss a few of them. First, this nominee has made many statements suggesting that if confirmed, she would pursue a results-oriented, whatever-it-takes approach to deciding cases. From this nominee's past commentary, we know that she is not only a devoted liberal, but she would also strive to move the courts leftward to suit her ideological preferences.

For example, in discussing the Warren Court, the professor said she wondered ``whether we almost have, by now, a stunted sense of what the legal choices really are, what really is a liberal legal outcome.''

Just listen to that phrasing again: ``liberal legal outcome.'' Is there any doubt this nominee views the courts as simply a third political branch?

I will quote again:

If Chief Justice Warren came out a certain way, that must

be as liberal as it gets. That's not right! I think that

we've stunted the spectrum of legal thought in a way that

removes the possibility that there could have been more

progressive readings of the Fourth Amendment and the Fifth

Amendment.

It seems Professor Harris doesn't think the Warren court was nearly liberal enough. That is a fairly astonishing view in itself.

I often hear liberals and some of our nominees talk about the so- called living Constitution. Well, it is clear to me this nominee sees not a living Constitution but a profoundly political Constitution. She said so herself. She sees judges as proxies engaged in a tug-of-war who use judicial power as an instrument of political control. Her statements, as I explained a few minutes ago, also are a clear indication of her belief that the role of a judge is to reflect those political and social forces.

For example, speaking about Justice Kennedy's stance on gay marriage, the professor said that the Justice ``should be changing the same way the whole country is changing.''

That is the language of politics, not the language of law.

She has said so many things to this effect that I find myself asking this question: Will this nominee even consider the law when deciding a case or is it all progressive outcomes, social movements, and critical junctures?

So it is clear there are two Professor Harrises: the pre-nomination professor and the post-nomination professor.

Let's not be naive about which Professor Harris will sit on the Federal bench--for life--if confirmed, because no one else is being naive about that question.

Take, for example, an article published last May in New Republic gushing that the professor is a ``champion of liberal jurisprudence'' and will be a ``sympathetic vote for liberal causes.'' We know that will be the case from the pre-nomination professor's long record of impassioned liberal advocacy.

The article also observes--accurately, in my view--that Professor Harris ``clearly has an interest in using her voice to project a liberal jurisprudence perspective.'' That quotation pretty much sums it up. All anyone needs to do to confirm that claim is to read the pre- nomination professor's public statements, because they are all out there. It is not a secret what this nominee thinks about the law and what she thinks about the courts. And it is no secret what kind of a judge this nominee will be if she takes the bench.

So it seems pretty clear to me that the timing of the vote on this nominee is not purely coincidental. We know this because of this week's ObamaCare decisions handed down by the DC Circuit and the Fourth Circuit.

Last November, when the majority changed the cloture rule on judicial nominees, I told my colleagues the decision was a blatant attempt to stack the DC circuit with judges who would view sympathetically the administration's arguments in upcoming ObamaCare lawsuits.

The other side dismissed the notion that the rules change was designed to tilt the court in the President's direction and to salvage ObamaCare. Well, as we all know, a three-judge panel of the DC Circuit decided the Halbig case this week against the administration, and it only took the administration about an hour to announce that it would seek a rehearing by the en banc DC Circuit, which now includes four of the President's nominees.

As we all know, our distinguished majority leader rushed through three of those four nominees immediately after the rules change. And yesterday the distinguished majority leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear. He said: ``I think if you look at simple math, it does.''

So the distinguished majority leader isn't even trying to disguise his intent, and that is exactly what happened with this nominee on her way to the Fourth Circuit.

This nomination is being considered ahead of other circuit nominees on the executive calendar. Why is this Fourth Circuit nomination being fast-tracked? Why fast-track one of the most liberal nominees we have considered to date? If history is any guide, the answer is simple. It is all about saving ObamaCare. The other side wants to stack the Fourth Circuit just like the DC Circuit, because the Fourth Circuit hears a disproportionate number of significant cases involving Federal law and regulations, as does the DC Circuit.

So my colleagues should understand a vote for this nominee is also a solid vote for the Affordable Care Act as the cases make their way through the court.

I am voting ``no'' on this nominee and I urge my colleagues to do the same. I yield the floor.

Unanimous Consent Agreement--Executive Calendar

Madam President, I yield back our time.

Madam President, I ask for the yeas and nays.

Mr. President, later we will be voting on a judge for the Eastern District of Missouri. I come to the Senate floor today to explain why, regrettably, I am unable to support the nominee.

As my colleagues know, Justice Ronnie White was originally nominated by President Clinton during the 105th Congress. This body voted on and rejected his nomination in 1999. After careful consideration of his record, I voted against Justice White's nomination at that time. Since 1999, Justice White completed a term as chief justice of the Missouri Supreme Court and has returned to private practice. So today I would like to revisit a few aspects of Justice White's legal and judicial career that first led me to vote against his nomination. I will also discuss developments since 1999. Unfortunately, his record since that time has only reinforced my concerns.

First, I begin with some troubling aspects of Justice White's record during his days on the Missouri Supreme Court in the 1990s. I only need to point to a few cases to illustrate my concerns.

In the 1998 Johnson case, Justice White was the sole dissenter on the State's high court. It was a capital appeal case involving a claim of ineffective assistance of counsel. The case was heartbreaking. The defendant shot four people to death--three Missouri sheriffs and one of the sheriffs' wives. The facts were stark and very clear-cut. This was not a close case.

The defendant was convicted based upon the overwhelming evidence of his guilt. Justice White conceded there was more than sufficient evidence to sustain the conviction on appeal, but he went out of his way to create a standard that was not based on Missouri law when he evaluated the conduct of the defense attorney. Unsurprisingly, not a single member of the State court agreed with Justice White's dissenting opinion. That is because it was obvious there was no reasonable probability that anything the defense attorney did would have

changed the outcome of the trial. That is the applicable legal standard. It is straightforward--very straightforward. In that case, every member of the State supreme court applied it correctly, except Justice White.

Unfortunately, Justice White's dissent in that case was not an isolated example. On a number of other occasions throughout his judicial career, Justice White misapplied standards of review or considered issues that were not germane to the law when he was deciding cases. Justice White has even admitted as much. Discussing his judicial philosophy, he said in 2005 that he thinks it is appropriate for judges to let their opinions be ``shaped by their own life experiences.'' I think the personal characteristics of any judge--what this nominee calls his ``own life experiences''--should play absolutely no role whatsoever in the process of judicial decisionmaking. I know my colleagues on our Judiciary Committee share that view as well.

Let me get back to the nominee's judicial track record. Justice White was the sole dissenter in another case that the Missouri Supreme Court decided in 1997. That case raised the question of whether the defendant was entitled to an additional evidentiary hearing. In his dissent, joined by none of his colleagues, Justice White again ignored a straightforward standard of review and wrote that the defendant should have the hearing because Justice White thought it would cause ``little harm.'' Here again we see Justice White's personal preferences creeping into what should be objective, law-based decisionmaking--something pretty elementary to being a judge at any level, Federal or State, in our system of jurisprudence.

Those are just two examples of what led me, after consideration of the nominee's record as a whole, to vote against his nomination in 1999.

Unfortunately, my concerns about Justice White's first nomination have only been reaffirmed by his subsequent record. For instance, I am troubled by Justice White's concurrence in the Eighth Amendment case of Roper v. Simmons. That case was first heard by the Missouri Supreme Court, was appealed to the Supreme Court, and was eventually affirmed. But the affirmance is not what my colleagues should focus on. What should concern my colleagues is the opinion that Justice White concurred in, which ignored binding Supreme Court precedent. That precedent was the Stanford v. Kentucky case. I will explain.

In 2003, when Justice White's court decided Roper, binding Supreme Court precedent at that time permitted applying the death penalty to individuals if they committed their crimes when they were under 18. Nonetheless, Justice White concurred in the State court opinion that simply ignored that precedent. Justice White concurred even though the Supreme Court had reaffirmed the Stanford principle twice in 2002, the year before Justice White's state court decision.

Moreover, in 2003 the Supreme Court rejected an appeal raising legal arguments that were identical to the ones Justice White endorsed. That is the very same year Justice White's court ruled in Roper and ignored Stanford outright.

My colleagues on our Judiciary Committee often ask nominees about their commitment to Supreme Court precedent and their faithfulness to the doctrine of stare decisis. Nominees who appear before us routinely repeat the mantra that they will unfailingly apply precedent and nothing else--in other words, leave out personal views. Justice White did as much at his hearing as well. But--and this is what I find so troubling--when I asked him about the Stanford case, he admitted that Stanford was, in fact, binding on his state court at the time he concurred in Roper. What he did not explain--what he could not explain--was why he ignored that binding precedent as a State supreme court justice. He could not explain why he thought it was appropriate for him to concur in a State court opinion that, in effect, overruled U.S. Supreme Court precedent.

I do not doubt that Justice White has always done what he thought was right and that he ruled the way he thought best to achieve justice for the litigants before him. But in my view that is not an appropriate role for a Federal district judge. Judicial decisionmaking requires a disinterested and objective approach that never takes into account the judge's life experiences or policy preferences. From the careful look I have taken at Justice White's 13-year track record as a judge, I have too many questions about his ability to keep his personal considerations separate from his judicial opinions.

Finally, it is worth noting that there continues to be opposition to this nominee from law enforcement.

Specifically, both the National Sheriffs' Association and the Missouri Sheriffs' Association oppose this nominee.

I always try to give judicial nominees the benefit of doubt when I have questions about their records, but in this nominee's case, I simply can't ignore so many indications that the nominee isn't the right person to occupy a lifetime appointment to the Federal bench.

I sincerely hope I am wrong about Justice White, and I reluctantly vote no on the nominee.

I ask unanimous consent to have printed in the Record a letter from Missouri Sheriffs' Association Training Academy and National Sheriffs' Association.

I yield the floor.

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

I wish to ask my colleagues as well as myself to think about how many times we have made pessimistic-sounding statements about America's future. I want to remind my colleagues and myself about what I see as excessive pessimism about our great country, because as public figures often what we say maybe has consequences--sometimes positive, sometimes negative. Our attitudes matter and the policies shaped by those attitudes can have an enormous impact for better or for worse on the lives of Americans.

President Ronald Reagan often expressed that America's best days were yet to come. Twenty-five years later I still believe in Reagan's optimism for America. In fact, President Reagan even ended his final letter to the American people: ``I know that for America there will always be a bright dawn ahead.'' His agenda reflected that optimism and his policies worked towards a freer, more prosperous America.

But it seems such optimism about America's future might be out of fashion these days. Instead of searching for a silver lining, many pundits and politicians see nothing but clouds. For instance, after decades of hearing about how we are about to run out of fossil fuel, making energy in the future much more expensive and scarce, improved technologies have unleashed enormous reserves of natural gas. This increase in supply has driven down costs and caused electrical generation to switch from coal to natural gas. That in turn has led to substantial reductions in U.S. greenhouse gas emissions. That seems to be a silver lining.

Now there are clouds on the horizon. However, rather than to celebrate the fact that the free market is achieving one of their long- held goals, many environmentalists want to ban the technology that led to the shale gas revolution based on unscientific claims of potential groundwater contamination. It seems that it would be a terrible shame to let all of that planning for scarcity of energy to go to waste. So I guess we better not take advantage of this Nation's resources.

On another matter, we hear a lot of hand-wringing about the decline in manufacturing jobs, but this is partly due to advances in manufacturing process which seems to require fewer more-skilled and therefore higher-paying jobs. The growth in American advanced manufacturing will require job training to fill those higher-skilled, higher-paying jobs, and of course we have community colleges throughout our country

that are rising to that challenge. This is an opportunity to do insource jobs that might otherwise be done overseas. That is good news for American economic competitiveness and from the standpoint of wanting higher paying jobs for Americans. That seems to me to be a silver lining.

Now the clouds: The decliners are so heavily invested in the story of the decline of American manufacturing that it is easier to bemoan the lack of economically inefficient low-skilled jobs which are the hallmark not of Americans but of underdeveloped countries.

On another matter, the bursting of the economic bubble has forced Americans to spend less and as a result to save more. ``Spend less, save more'' seems to me to be good news. Now clouds are forming because we have economic pundits saying that ``spend less, save more'' shows a lack of consumer confidence. You could look at it as a reality check in the face of unsustainable credit card debt financing spending or is it our national goal to get people to go back to saving less in the future and spending more today? Live for today and forget about tomorrow. You would think so, based upon what you hear in the news shows.

American entrepreneurs still produce a disproportionate share of the world's major innovations. Still, we are cautioned by people who always see clouds hanging over America, that America is not graduating enough people with science and technology degrees and the best and brightest in developing countries may soon decide to stay at home to build their companies instead of coming to America.

Doomsayers have existed throughout our history. It seems to be a sign of sophistication and intellectual refinement to predict the inevitable decline of your own society.

Using 20/20 hindsight, the eventual decline of all of history's great civilizations somehow seems to be inevitable. So isn't it logical then to think our great Nation will decline as well? Perhaps the so-called great recession is a sign that America's best days are in fact already behind us. Many people in the media and government seem so caught up in this narrative they cannot see any other possibility but our decline. This fever is starting to spread to the general public as polls show a record number of Americans who think the next generation will be less well off than this generation. As a result there is a tremendous amount of energy being devoted to figuring out how to manage America's decline. This is kind of a historical determinism and pessimism that is very alien to the American character.

The rise of America as the most prosperous Nation on Earth was hardly inevitable 200 years ago. We owe our current level of prosperity to the entrepreneurial spirit and hard work of our forefathers and, yes, to their unbounded optimism in the future of this great country. An excessive focus, then, on managing decline risks becoming a self- fulfilling prophecy.

For instance, there is a lot of concern about the decline of the middle class, but instead of talking about how to unharness the entrepreneurial spirit that made America an economic super power and grew the great American middle class that we know, all the ideas from our friends across the aisle seem to focus on expanding dependency on government and more government programs. While a succession of new EPA regulations rain down on businesses causing them to pull back from expanding and hiring more people, the Democrats' solution is to keep people on unemployment benefits for a long, long time. Expensive health care reform mandates threaten to force small businesses to reduce the hours of employment and maybe not even hire more than 49 people, because when you get to 50 people there are other requirements in health care reform that kick in.

So what is the answer? Many people in this body would mandate that small business pay a much higher minimum wage. Minimum wage jobs ought to be seen as a stepping stone for low-skilled workers to begin climbing the economic ladder. However, when the economic engine stalls, the ladder of opportunity becomes harder to climb. It happens that more and more people get stuck trying to make ends meet with low wage jobs and no opportunity to get ahead. And it seems that people are concerned about tackling this problem by putting more people on food stamps.

So you get back to the American dream. The American dream is about an opportunity to work hard and earn your own success in life. Proposals to expand the welfare state to the middle class assume the American dream is somehow dead and the best we can hope for is anemic economic growth with high levels of government dependency. That is a defeatist attitude that reflects a distinct lack of faith in our great country. This is the old European model, which the experience of Greece showed to be unsustainable.

In fact, the poster child for an expensive European welfare state, Sweden, has in fact taken a new route to cut taxes and reform entitlement programs--a lesson that we ought to be looking at in America. But who would ever think that we would look to Sweden as an example to teach us how to lower taxes and reform entitlement programs? If we keep planning for decline, we will get it. But if we recover our faith in America's potential and redirect our energy towards removing barriers to economic growth and opportunity, America's best days are still ahead of us.

That leads me to repeat what Ronald Reagan said 25 years ago in that letter to the American people: ``America's best days are still ahead of her.''

Madam President, I want to speak to my colleagues on another issue as well, and that is something that came out of our Judiciary Committee a long time ago and is still on the calendar but probably will be brought to the Senate floor. A few weeks ago some were calling for the majority leader to bring up the so-called Smarter Sentencing Act to the Senate floor for a vote. So I come to the floor today to express my strong opposition to this bill and argue against taking the Senate's time to consider it.

In the past I pointed out that this bill would put at risk our hard- won national drop in crime. It would also reduce penalties for importing and distributing heroin, a drug that is currently devastating our communities with an epidemic of addiction and a rising number of deaths from overdoses. In part, for these reasons many law enforcement professionals have come out against this legislation. The National Association of Assistant U.S. Attorneys, Federal law enforcement officers associations, and a long list of former high-level officials-- in Republican and Democratic administrations alike--are all opposed to it. Indeed page A12 of this morning's New York Times contains an article entitled: ``Second Thoughts on Lighter Sentences for Drug Smugglers.'' According to the New York Times, the sentencing changes that the administration has already pushed for are ``raising questions of whether the pendulum has swung too far.'' ``Some prosecutors say that couriers have little to no incentive to cooperate anymore.''

Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment. And judges who once denounced the harsh sentencing guidelines are now having second thoughts.

Today I point out another perhaps less understood effect of the bill which puts our national security at increased risk.

According to the Drug Enforcement Administration, terrorists are increasingly funneling illegal drugs into America, raising large sums of money to fund their activities while simultaneously harming our communities. Undoubtedly, the Obama administration's unwillingness to control our border--which we have seen recently--contributes to the problem.

Derek Maltz, Director of the Special Operations Division at the Drug Enforcement Administration, called this a two-for-one deal for terrorists: ``Poison gets distributed in the West, and they make millions in the process.''

According to a DEA spokesperson, ``Most people talk about the drug issue as a health issue, a parenting issue, an addiction issue. But the truth is, it's really a national security issue.''

In 2006, Congress took specific action to address this issue. When it reauthorized the PATRIOT Act, Congress also

made it a separate crime to manufacture or distribute illegal drugs to benefit terrorists or terrorist organizations. The law is codified at title 21, section 960(a) of the U.S. Code. It is often called the narcoterrorism law.

Just as important, Congress created mandatory minimum sentences applicable to narcoterrorism. Those sentences are set at ``not less than twice the minimum punishment'' applicable to the underlying drug trafficking offenses which are codified in title 21, section 841. However, the Smarter Sentencing Act would drastically cut the mandatory minimum sentences that apply to these underlying drug trafficking offenses. What this means is that by slashing in half the mandatory minimum sentences for the local drug dealer down the block, the Smarter Sentencing Act also slashes in half the mandatory minimum sentences for members of the Taliban, Al Qaeda or Hezbollah who deal drugs to fund their acts of terrorism.

For example, terrorists who currently face a mandatory minimum sentence of 20 years in prison for narcoterrorism would instead face only 10 years if the Smarter Sentencing Act were to become law. By cutting the mandatory minimum sentences for trafficking drugs to fund terrorism, the Smarter Sentencing Act weakens a very important tool that can be used to gain the cooperation of narcoterrorists facing prosecution. This cooperation leads to more arrests, more drug seizures, more terrorists off the streets, and more intelligence that could help prevent further attacks.

Indeed, law enforcement authorities have been supportive of the mandatory minimum sentences that apply to the narcoterrorism statute for this very reason. For example, the Assistant Administrator for Intelligence at the Drug Enforcement Administration testified before Congress that ``the robust sentencing provisions in these statutes provide incentives for defendants to cooperate with investigators, promoting success in investigations.''

The last thing we should do is weaken the leverage law enforcement currently has to win a terrorist defendant's cooperation, but that is what the Smarter Sentencing Act would in fact do.

Indeed, in opposing the bill, Federal prosecutors wrote that ``mandatory minimums . . . help gain the cooperation of defendants in lower level roles in criminal organizations to pursue higher-level targets.''

The same principle is true--and even more important--when our national security is at stake. These threats to our safety and security are not theoretical, they are very real, and the narcoterrorism law is not just a statute on the books, it is a tool that is actively used by prosecutors to protect our Nation.

For example, in 2008, Khan Mohammed, a member of the Taliban, was convicted under the narcoterrorism law of distributing heroin and opium to finance attacks against American troops in Afghanistan.

Chillingly, Mohammed was just as concerned with killing American civilians with drugs as he was with financing rocket attacks against our troops. The opium he agreed to sell was to be processed into heroin and imported into the United States. As a result, Mohammed was caught on tape exclaiming ``Good, may God turn all the infidels into dead corpses.''

He later expounded on his deadly intentions:

May God eliminate them right now, and we will eliminate

them too. Whether it is by opium or by shooting, this is our

common goal.

Similarly, the narcoterrorism law was used to prosecute Afghan heroin kingpin Haji Bagcho in 2012. He was also trafficking heroin to America and funneled the proceeds to the Taliban. The evidence at trial showed that in 2006 his drug trafficking organization produced almost 20 percent of the world's opium and, similar to Mohammed, he targeted Americans. He reportedly encouraged Afghan farmers to ``grow opium so we can make heroin to kill the infidels.''

Perhaps it is little wonder, according to the Drug Enforcement Administration, heroin overdoses resulting in death in the United States increased 45 percent between 2006 and 2010.

It should go without saying that these are not individuals whose mandatory minimum sentences should be cut in half. But the authors of the Smarter Sentencing Act apparently think otherwise because that is what the bill says or maybe they don't understand what they are doing. Either way, the American people should be extremely concerned about this bill that unbelievably was reported out of the Judiciary Committee.

Some may assume that the Department of Justice has other tools to go after defendants such as these, but the only other charges that Mohammed and Bagcho faced were for unlawfully importing these illegal drugs into the United States. Unbelievably, the Smarter Sentencing Act cuts the mandatory minimum sentences for that crime in half as well.

In addition to these two cases, the Department of Justice has brought prosecutions against other narcoterrorists. Many of these individuals were linked to Hezbollah, one of the most notorious terrorist organizations in the world. In at least one instance associates of Al Qaeda were also brought to justice for their role in drug trafficking schemes.

In many of these cases, the narcoterrorism law and the ban on importing illegal drugs played a vital role in their prosecution. We should not be weakening these laws at this critical time by cutting the penalties associated with those acts of crime. Of course, if possible, I would rather these terrorists be treated as enemy combatants and not be subject to the civilian criminal justice system at all, but on those occasions when they are prosecuted in our criminal justice system, I want authorities to have the strongest tools available to address the threat these criminals pose.

According to the U.S. attorney for the Southern District of New York, who has brought many of these cases, ``there is a growing nexus between drug trafficking and terrorism, a nexus that increasingly poses a clear and present danger to our national security. Combating this lethal threat requires a bold and proactive approach.'' Cutting the mandatory minimum sentences for narcoterrorists is moving in precisely the opposite direction of what the U.S. attorney for the Southern District of New York said and I just quoted.

Trafficking in illegal drugs has long been understood to be a way that these terrorist organizations raise funds, but it is now equally clear that this activity is also a way for them to target our fellow citizens directly. In effect, drug trafficking is a method of waging war against the United States. It is a way to terrorize our communities with poison without firing a shot. It is a way to threaten the lives of Americans just as surely as using a bomb, a gun or a hijacked plane.

Terrorists are wielding another tool in their efforts to destroy and defeat our country. This is not the moment to weaken one of the tools we have to actually stop them. This is no time to let down our defenses. It is no time for the Senate to take up the misnamed Smarter Sentencing Act.

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