Floor Statements

Mr. President, it was a very sad weekend and will be for a long period of time in Aurora, CO. I heard the remarks of the majority and minority leaders today expressing condolence for the victims and their families. I wish to associate myself with those remarks and offer my condolences to all the people of Aurora but particularly to those who have deceased family members and those who are hospitalized because of this tragic event that happened there.

Mr. President, I support the nomination of Michael A. Shipp to be U.S. district judge for the District of New Jersey, currently serving as a U.S. magistrate and coming out of committee on voice vote. I am not aware of any controversy regarding this nominee, and I expect he will be confirmed with an overwhelming vote.

There has been a bit of discussion regarding whether the cloture vote that had been scheduled on today's nominee was some sort of escalation of Presidential election politics or an indication of a partisan fight over judicial confirmations. Those are raised as speculation or misreading what is happening in the Senate. The fact is that the cloture vote, which is now vitiated, had nothing to do with the judicial confirmation process in general or this nominee in particular.

There is, unfortunately, an element of partisan gridlock that is affecting this nomination, but it is not because of a Republican desire to block this nominee or to shut down the Senate floor. Republicans, in fact, have been demanding more access to the Senate floor. That gridlock is the majority leader's tactics to block amendments on the Senate floor.

Time after time the majority uses parliamentary procedure to prohibit amendments, block votes, and deny or limit debate. For example, last Thursday the Republican leader asked the majority leader if the anticipated business coming before the Senate, the Stabenow-Obama campaign tax bill, would be open for amendment. The majority leader responded that would be ``very doubtful.'' These actions, although they may be permitted by Senate rules, are contrary to the spirit of the Senate.

Certainly we are far from being the world's greatest deliberative body at this time. So when a Senator who seeks a vote on his amendment is stymied time after time, it is not surprising that the Senator would use Senator rules and procedures to bring pressure on the majority leader for a vote--in other words, to do exactly what the Senate was set up under the Constitution to do. There is a bit of sad irony that Senators who are facing obstructionism are the ones who are labeled obstructionist when they are persistent in trying to bring a matter to a vote, which is customary in the Senate.

Unfortunately, we are now seeing this obstructionism strategy creep into committee activity as well. Again, last Thursday the Judiciary Committee marked up an important national security bill. The bill was open to amendment but apparently only amendments the chairman agreed with. In the Judiciary Committee, we have a longstanding practice of voting up or down on difficult, controversial issues. What happened last week undermined the responsibility of the committee to debate and address important issues--in this case, national security. The Judiciary Committee is a forum for these debates.

The bill that was on the agenda is one of the few vehicles that will likely be passed before the end of the year, so it was an important and appropriate vehicle for addressing such issues once the chairman opened the amendment process by adopting his own substitute amendment. Instead, the partisan gridlock, driven by the majority leader's tactics to block amendments on the Senate floor, has now spread to the committee level with made-up germaneness rules and tabling motions forced on amendments, some of which had received bipartisan support from members of the Judiciary Committee in the past. The only conclusion that can be drawn is that the Senate majority leadership wants to protect its members at every step of the legislative process from having to make difficult votes, and the majority leadership will employ any procedure it can to duck debates and to govern.

Even as we turn to the 154th nominee of this President to be confirmed to the district or circuit courts, we continue to hear unsubstantiated charges of obstructionism. The fact is we have confirmed over 78 percent of President Obama's district nominees. At this point in his Presidency, 75 percent of President Bush's nominees had been confirmed. President Obama, in other words, is running ahead of President Bush on district confirmations as a percentage.

I continue to hear some of my colleagues repeatedly ask the question: What is different about this President that he is to be treated differently than all of these other Presidents? I won't speculate as to any inference that might be intended by that question, but I can tell you that this President is not being treated differently than previous Presidents. By any objective measure, this President has been treated fairly and consistently with past Senate practices.

As I stated, as a percentage of nominations, this President is running ahead of the previous President with regard to the number of confirmations. Let me put that in perspective for my colleagues with an apples-to-apples comparison. As I mentioned, we have confirmed 153 district and circuit nominees of this President. We have also confirmed two Supreme Court nominees. Everyone understands that the Supreme Court nominations take a great deal of committee time. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term, and during that term the Senate confirmed a total of 119 district and circuit court nominees. With Judge Shipp's confirmation today--which I support and which I think will be confirmed almost unanimously--we will have confirmed 35 more district and circuit court nominees for President Obama than we did for President Bush in similar circumstances.

During the last Presidential election, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. This Presidential election year we have already exceeded those numbers. We have confirmed 5 circuit nominees, and this will be the 27th district judge confirmed.

Judge Shipp received his B.S. from Rutgers University in 1987 and his J.D. from the Seton Hall University School of Law in 1994. Upon graduation, he clerked for the Honorable James H. Colman, Jr., a justice on the Supreme Court of New Jersey. After his clerkship, Judge Shipp joined Skadden, Arps, Slate, Meagher & Flom LLP as a litigation associate. There, he worked in general litigation matters, handling labor and employment work. He also developed an expertise in mass tort law and products liability litigation.

In 2003, Judge Shipp became an assistant attorney general in charge of

consumer protection with the Department of Law and Public Safety of New Jersey. There, he managed five practice groups: consumer fraud prosecution, insurance fraud prosecution (civil), securities fraud prosecution, professional boards prosecution, and debt recovery. He supervised approximately 80 deputy attorneys general. In 2005, he was promoted to the Attorney General's front office. There, he acted as an advisor to the Attorney General on sensitive legal matters related to ethics and appointments.

In 2007, Judge Shipp was appointed as a United States magistrate judge for the District of New Jersey. As a magistrate judge he presides over civil and criminal pre-trial proceedings. He also presides over civil trials, with the consent of the parties. The ABA Standing Committee on the Federal Judiciary gave Judge Shipp a rating of substantial majority ``Qualified,'' minority ``Not Qualified.''

I ask unanimous consent to have 1 minute, then, too.

Mr. President, for my 1 minute I will respond simply to that by saying that I am talking about the institution of the Senate and not one single Senator personally.

Madam President, I rise to pay tribute to the life and service of SGT Michael E. Ristau, a native of Cascade, IA. He was killed on July 13, 2012 in Qalat, Zabul Province, Afghanistan while serving his country as part of Operation Enduring Freedom. He leaves behind his wife, Elizabeth, two sons, Hyle and Bradley, his parents, Randy and Suzanne, and many other family and friends. My prayers go out to them as they grieve his loss.

By all accounts, he was a brave soldier who was proud of serving his country. He had a long list of awards and decorations, including the Bronze Star and Purple Heart, Army Achievement Medal, Army Good Conduct Medal, with Oak Leaf Cluster, National Defense Service Medal, Afghanistan Campaign Medal, with Bronze Service Star, Iraq Campaign Medal, with two Bronze Service Stars, Global War on Terrorism Service Medal, Army Service Ribbon, NATO Medal, Non-Commissioned Officer Professional Development Ribbon, Valorous Unit Award, Meritorious Unit Commendation, and Combat Infantryman Badge.

Our Nation is truly blessed to have patriots like Sergeant Ristau who volunteer to serve their country, prepared to endure the daily sacrifices of a deployment and the horrors of combat, and knowing that they could make the ultimate sacrifice. About his military service, his family said, ``Michael had a passion for the military and was going to re-enlist.'' They also said that ``Michael was always looking out for others and helping them in any way possible.'' There is certainly no more selfless act than to give one's life to ensure that others may live in freedom. We cannot hope to ever fully repay the debt we owe Michael Ristau, but as he joins the illustrious ranks of our fallen patriots from the birth of our Nation to the present day, we have an obligation to honor his life and his sacrifice. We must always remember heroes like Michael Ristau and never take for granted the gift of liberty they have won for us.

Mr. President, I am pleased that Chairman Leahy and I were able to help with the effort to look at the issue of water contamination at Marine Corps Base Camp Lejeune in North Carolina. In particular, in June, we sent a letter to the Department of Defense, which has resulted in it producing more than 8,500 documents to the Judiciary Committee.

I know that Senator Burr and others have been leaders with the effort to look into the situation at Camp Lejeune.

Every member of the Senate should be aware of the situation at Camp Lejeune.

The drinking water contamination that took place over several decades at the base was one of the worst environmental disasters in American history.

Camp Lejeune was designated a Superfund site by the Environmental Protection Agency (EPA) in 1988 after inspections confirmed contamination of the ground water due to the migration of hazardous chemicals from outside the base and inadequate procedures to contain and dispose of hazardous chemicals on the base.

Residents of every State, who previously lived or worked at the base, have been impacted by the contamination.

Indeed, more than 180,000 current and former members of the armed services and employees at the base have signed up for the Camp Lejeune Historic Drinking Water Registry. By registering, individuals who lived or worked at the base before 1987 receive notifications about the contamination.

The Camp Lejeune registry includes residents from all 50 States. 1,121 Iowans are among them. It's estimated that more than 750,000 people may have been exposed to hazardous chemicals at the base.

The numbers don't fully reflect the impact of the disaster at the base. There are real people behind those numbers.

In March, as part of the Judiciary Committee's annual oversight hearing on the Freedom of Information Act, we heard the testimony of retired Marine Master Sergeant Jerry Ensminger. He was stationed at Camp Lejeune with his family and told us of the battle his daughter, Janey, fought with leukemia for two-and-a-half years, before she died at the age of nine. He also told us of the difficulties that he and others were having getting information from the Department of Defense.

The men and women of the armed services protect us every day. We should never take them or the sacrifices that they and their families make for granted.

We in Congress have an obligation to do everything that we can to support them in their mission.

That's why I'm a cosponsor of the Caring for Camp Lejeune Veterans Act, which was introduced by Senator Burr in 2011. That bill, a version of which passed by unanimous consent in the Senate yesterday, will help to provide medical treatment and care for servicemembers and their families, who lived at the camp and were injured by the chemical contamination.

Unfortunately, the Department of Defense has not been forthcoming with information about the contamination at Camp Lejeune.

That's troubling, especially coming from the administration that proclaims itself to be the ``most transparent administration ever.''

As we all recall, on his first full day in office, President Obama declared openness and transparency to be touchstones of his administration, and ordered agencies to make it easier for the public to get information about the government.

Specifically, he issued two memoranda written in grand language and purportedly designed to usher in a ``new era of open government.''

Based on my experience in trying to pry information out of the Executive Branch and based on investigations I've conducted, and inquiries by the media, I'm disappointed to report that President Obama's statements in memos about transparency are not being put into practice.

There's a complete disconnect between the President's grand pronouncements about transparency and the actions of his political appointees.

The situation with the Camp Lejeune documents is just another example of that disconnect. The documents should have been produced long ago.

The recent letter that Chairman Leahy and I sent from the Judiciary Committee had to be sent because the Defense Department refused to produce documents in response to a March letter signed by six senators and three members of the House of Representatives. Chairman Leahy and I had also signed that March letter.

The March letter had to be sent because of complaints that Congressional offices had received about the Navy's refusal to disclose documents needed for scientific studies of the contamination at Camp Lejeune. It was also needed because of claims that the Navy is improperly citing exemptions under the Freedom of Information Act to withhold documents related to the contamination.

So, while I'm pleased that there was a bipartisan effort to obtain these documents, I'm disappointed by the stonewalling and by the hurdles that were put up by the administration.

Transparency and open government must be more than just pleasant sounding words found in memos. They are essential to the functioning of a democratic government.

Transparency is about basic good government and accountability--not party politics or ideology.

Throughout my career I have actively conducted oversight of the Executive Branch regardless of who controls the Congress or the White House.

I'll continue doing what I can to hold this administration's feet to the fire with Camp Lejeune and where ever else I find stonewalling and secrecy.

Thank you. I yield the floor.

Mr. President, last September, President Obama responded to amnesty proponents, denying that he had authority to unilaterally grant special status to individuals who may be eligible under the DREAM Act.

The DREAM Act has been around the Senate for discussion for about a decade, and in different forms. It has been voted down several times by this body--mostly because the leader won't allow for an amendment process to improve the bill; otherwise, it probably could have been worked upon.

A few months ago when asked by amnesty advocates to push the bill through Executive order, President Obama said this:

This notion that somehow I can just change the laws

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

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

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

getting the DREAM Act passed and getting comprehensive

immigration passed by perpetrating the notion that somehow,

by myself, I can go and do these things. It's just not true.

We live in a democracy. You have to pass bills through the

legislature, and then I can sign it.

But 1 month ago, President Obama continued his ``we can't wait'' campaign and circumvented Congress, again, to significantly change the law all by himself. On June 15, he announced that the Department of Homeland Security would lay out a process by which immigrants who have come here illegally could apply for relief and remain in the United States without the fear of deportation. So what has changed in the last 9 months, when the President of the United States said last September that he could not unilaterally grant amnesty?

Before I dive into the details of how poorly planned and implemented the directive of June 15 will be, I have to question the legal authority of the President to institute a plan of this magnitude.

I, along with 19 other Senators, sent the President a letter and asked if he consulted with attorneys prior to the June 15 announcement about his legal authority to grant deferred action and work authorizations to a specific class of immigrants who have come here illegally. It is important that we get that question answered, because last September the President said he didn't have the legal authority to do it. We asked the President if he obtained a legal opinion from the Office of Legal Counsel or anyone else within his administration. To date, we have not received any documentation that discusses any authority whatsoever that he has to undertake this massive immigration directive.

I know the Secretary of Homeland Security has discretion to determine who is put in removal proceedings. Prosecutorial discretion has been around for a long time, but it hasn't been abused to this extent. The President is claiming the Secretary will implement this directive using prosecutorial discretion. However, millions of immigrants coming here illegally will be instructed to report to the U.S. Citizenship and Immigration Service and proactively apply. This is not being done on a case-by-case basis as they want to make it appear.

The President's directive is an affront to our system of representative government and the legislative process, and it is an inappropriate use of executive power based upon what he said last September, that he didn't have the authority to do this. The President bypassed Congress because he couldn't lead on immigration reform, and he couldn't work in a bipartisan manner on an issue that involves undocumented young people.

The President's directive runs contrary to the principle that American workers must come before foreign nationals. His policies only increase competition for American students and workers who struggle to find employment in today's economy. And that unemployment is 8.2 percent official, 11 or 12 percent unofficial.

According to the Bureau of Labor Statistics, the unemployment rate among the age group 16 to 24 has been nearly 17 percent for the last year. According to a Gallup poll conducted in April of this year, 32 percent of the 18-to-29-year-olds in the U.S. workforce, if not unemployed, are underemployed.

The President's plan to get people back to work is to grant immigrants who come here illegally a work authorization. He must be seriously out of touch if he doesn't think there is competition already for American workers.

Now I wish to talk about how poorly this directive has been thought out. This is the implementation of a directive the President said he didn't have the authority to do in the first place. But if you are going to have an illegal directive, you ought to at least know it will work. It is my understanding the White House informed Homeland Security officials of this plan just days before it was announced on June 15. They were unprepared, and have since been scrambling to figure out how it will be carried out.

U.S. Citizenship and Immigration Service--the agency in charge of all immigration benefits, including work authorizations, visa applications, asylum petitions, and employment verifications for employers--will be the agency tasked with handling millions of new applications for deferred status and work permits. Agents in the field are confused as to how to do their jobs and fear retaliation if they don't do the right thing. So in essence, this White House is telling agents in the field to begin a practice called catch and release.

Last Friday, Homeland Security officials briefed the Judiciary Committee on the directive. Staff of the Judiciary Committee were told that agents of the agency would be required to release immigrants who come here illegally if they fell into the criteria laid out. But what are the ramifications if an agent does not release them but instead uses his discretion to say the person was not eligible and puts them in removal proceedings?

You will be astounded by the answer we got, because the Department of Homeland Security explained that such an agent would be subject to disciplinary action--disciplinary action if you are doing what your job is required to do. The agent's actions would be considered during their annual personnel review.

So there will be no discretion for agents, and they will be forced to give deferred action to anyone who comes close to the criteria laid out, even despite their hesitation to do so, or face retaliation from bureaucratic higher-ups.

It is as though Homeland Security forgot their mission which is:

To ensure a homeland that is safe, secure, and resilient

against terrorism and other hazards where American interests,

aspirations, and way of life can thrive.

Once we overcome the question of legal authority and the reality that there was little thinking put into this plan before it was announced on June 15, we are left to oversee the details of the implementation plan. Homeland Security officials say they will have a process laid out by August 15. We have very little details, but Homeland Security officials did give some insight on Friday in this briefing to members of the Judiciary Committee staff. Here is what we learned.

We know people under the age of 30, who entered before their 16th birthday, have been here for at least 5 years, and are currently in school may qualify for deferred action. We know there are caveats to the criteria. Some criminal offenses will be OK, and young people can finish their education after they are granted deferred action.

We know individuals with final orders of removal will be eligible for deferred action. We know these people will not have to appear for an in-person interview to benefit from this directive of the President of June 15. We know they will be granted this special status for 2 years, and those who are denied will not be put into removal proceedings. We know this is not aimed at

helping just youth since the age limit is 30. So who are we going to help over age 30, because we thought from the President's announcement, if people are over 30 years of age nobody is going to benefit. We know people under the age of 30 are not the only people going to be considered for relief.

Secretary Napolitano said so herself. She told CNN's Wolf Blitzer the following:

We have internally set it up so that the parents are not

referred for immigration enforcement if the young person

comes in for deferred action.

I was not born yesterday. This administration is not going to give a benefit to immigrants here illegally and then force his or her parents to leave the country, which begs the question, What will they do if the young people are eligible and receive deferred action, but the parent is a criminal, a gang member, or a sex offender?

Because this program has not been well thought out and because it is being rushed to benefit people by the end of the year, there is no doubt that fraud will be a problem. How will Federal officials who process the applications ensure that information provided by the individual is accurate? How will they verify that one truly entered the country before the age of 16 or is currently under the age of 30?

Homeland Security officials act as though they are prepared to handle the influx of counterfeit documents that will be presented. The department officials are going to rely on their small fraud detection unit--who already happen to be very busy working every day on other types of immigration benefits--to determine if people are truly eligible. What will be the consequences for individuals who intentionally defraud the government? They need a fraud and abuse prevention plan. Without one they will likely legalize every single immigrant who came here illegally, who is already on U.S. soil.

The administration will announce more details about this plan in the next few weeks. I am anxious to see if they plan to only provide deferred action to this population. Department officials refuse to elaborate on whether some of these individuals will be able to get advanced parole. That is a special status that allows an immigrant coming here illegally to adjust to permanent residence and then gain citizenship. This administration wants people to believe this is not amnesty and that these people will not have lawful status, but I am watching to see if they try to pull the wool over our eyes and provide a status that allows these people to adjust and remain here permanently.

Finally, a major flaw in the President's plan is how this is going to be paid for. A massive amnesty program is going to cost a lot of money. So what are the taxpayers going to have to cough up out of their hard- earned dollars to pay for it? Department officials said on Friday that illegal immigrants may not be charged for their special status. The individual would be charged $380 if they choose to apply for a work authorization. They could not assure us that funding would not be redirected from other programs to this initiative.

To reprogram funds within the Department, the Secretary must notify and gain consent of the majority and minority leaders on the Appropriations Committee. However, when pressed, Department officials could not assure us that they would not bypass the longstanding process and reprogram dollars on their own. The U.S. Citizenship and Immigration Service will be forced to concentrate on this program, leaving employers, foreign workers, and legal immigrants without the service they need to work, visit, or remain in the United States.

If the U.S. Citizenship and Immigration Service adjudication staff will be diverted from their normal duties to handle the millions of potential deferred action applications, this can only have a devastating impact on other programs within the Department. I fear this plan will bankrupt the agency that oversees immigration benefits and affect all legal immigration for years to come.

I fear the President has overstepped his authority again. The President, time and again, has shown no leadership or refused to work with Congress on issues that directly impact the American people. And when it comes to the immigration issue he promised the people in the 2008 election, that in his first year in office he would have an immigration bill before Congress, he has not even presented an immigration bill yet. He insisted he was coming here to change Washington, but he changed it for the worse. He insisted he was going to make this the most transparent administration ever, but Congress and the American people are left in the dark.

No matter where one stands on immigration, we should all be appalled at how this plan has been carried out. Whether it is legal or illegal is one thing. But when it is not thoroughly thought out, how it is going to be implemented, that is not how the chief executive of a major operation such as the U.S. Government ought to be acting.

We should all be concerned that our votes are rendered meaningless as a result of the assumption of power on June 15 that the President said last September he did not have. Until we can end this plan, I encourage my colleagues to watch over its implementation for the future of our country. The integrity of our whole immigration system is hanging in the balance.

This immigration system is very important because the United States has opened doors for more people than any other country in the world to come here legally. About 1 million people come here legally. So we are a welcoming nation. We are a nation built upon immigrants bringing new ideas to this country, making this a very not only colorful country but a dynamic society. We ought to leave it that way. But this change to our immigration system for people to come here legally jeopardizes a lot of people who want to abide by our laws and come here and make our country even richer.

I yield the floor.

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

Madam President, I come to the floor to address my colleagues about a Federal agency that has forgotten that this Federal agency is supposed to be working for the American people. This is an agency that has gotten too big for its britches. Some of the officials have forgotten who pays their salary.

The Food and Drug Administration is supposed to protect the American people, except lately the only thing the FDA bureaucrats seem to have any interest in is protecting themselves. According to whistleblowers and published reports in the Washington Post and in the New York Times, the agency in charge of safeguarding the American public and providing for the public safety has trampled on the privacy of its very own employees. The FDA mounted an aggressive campaign against employees who would dare to question its actions and created what the New York Times termed an ``enemies list'' of people it considered dangerous. It kind of reminds us of President Nixon and the IRS going after enemies.

The Food and Drug Administration has been spying on this enemies list. The FDA has been spying on the personal e-mails of these employees and

everybody these employees contacted. That includes their protected communications even with those of us in Congress.

We would not have known the extent of the spying if internal FDA documents about it had not been released on the Internet, apparently just by accident. We would not have known how the FDA intentionally targeted and captured confidential, personal e-mails between the whistleblowers, their lawyers, and those of us in Congress.

In these internal documents, the FDA never wanted the public to see that it referred to whistleblowers as ``collaborators.'' FDA refers to congressional staff as ``ancillary actors.'' FDA refers to newspaper reporters as ``media outlet actors.'' These memos make the FDA sound more like the East German Stasi than a consumer protection agency in a free country.

At the beginning of Commissioner Hamburg's term, she said whistleblowers exposed critical issues within the FDA. That seems to be a very approving comment. She vowed to create a culture that values whistleblowers. That appears to be a very approving statement. In fact, in 2009 she said: ``I think whistleblowers serve an important role.''

I wanted to believe Commissioner Hamburg when she testified before the Senate committee during her confirmation. I wanted to believe her when she said she would protect whistleblowers at the Food and Drug Administration. However, the facts now appear very different.

In this case, the FDA invaded the privacy of multiple whistleblowers. It hacked into the private e-mail accounts and used sophisticated keystroke logging software to monitor their every move online.

When an FDA supervisor was placed under oath in the course of an equal employment opportunity complaint, that employee--that supervisor--testified that the FDA was conducting ``routine security monitoring.'' That is entirely false. This monitoring was anything but routine. It specifically targeted five whistleblowers. It intentionally captured their private e-mails to attorneys, to Members of Congress, and to the Office of Special Counsel. The internal documents showed that this was a unique, highly sophisticated, and highly specialized operation.

According to the Office of the Inspector General, the Food and Drug Administration had no evidence of any criminal wrongdoing by these whistleblowers. This massive campaign of spying was not just an invasion of privacy; it was specifically designed to intercept communications that are protected by law. The Office of Special Counsel is an agency created by Congress to receive whistleblower complaints and to protect whistleblowers from retaliation. The law protects communications with the special counsel as a way to encourage whistleblowers to report waste, fraud, abuse, mismanagement, and threats to the public safety, and to do that reporting without fear of retaliation. The FDA knew that contacts between whistleblowers and the Office of Special Counsel are privileged and confidential, but the James Bond wannabes at the FDA just didn't seem to care what the law said.

In the end, the self-appointed spies turned out to be more like the bumbling Maxwell Smart. Along with their own internal memos about spying, the fruits of their labor were also accidentally posted on the Internet. It is tens of thousands of pages of e-mails and pictures of the whistleblower computer screens containing some of the very same information the FDA bureaucrats were so keen to keep secret.

When I started asking questions about this, FDA officials seemed to suffer from a sudden bout of collective amnesia. It took them more than 6 months to answer a letter from last January starting my investigation of this issue. When I pushed for a reply during those 6 months, FDA told my staff that the response would take time to make sure it was accurate and complete.

When I finally got the response on Friday, it doesn't even answer the simplest of questions, such as who authorized this targeted spy ring, and isn't it a coincidence that just Friday, before the New York Times article was going to come out, they finally answered a letter going way back to my questions of January. Worse than that, though, it is misleading in its denials about intentionally intercepting communications with Congress.

When I asked them why they couldn't just answer some simple questions, they told my staff that the response was under review by the ``appropriate officials in the Administration.'' The nonanswers and the doublespeak would have fit right into some George Orwell novel.

Of course, when my staff dug deeper and asked if the response was being reviewed by the Office of Management and Budget, the Food and Drug Administration responded: No, it wasn't being reviewed by OMB.

FDA refused to identify who within the administration was holding up the FDA's response to my letter. Now, that is in an administration that said on January 20, 2009, they are going to be the most transparent in the history of this country. FDA refused to say how long it had been sitting on that person's desk or why it had been approved by the political officials outside the FDA. Who is this shadowy figure conducting some secret review of the FDA's responses to this Senator's questions? Why was there all of a sudden interest in exerting political control over the correspondence of this supposedly independent Federal agency? And when we use the words ``independent Federal agency'' around here, we mean not subject to political control.

We need answers, and we need answers now. I have been demanding answers for 6 months. For the past 6 months, FDA has been telling me to just be patient. The FDA has been telling me they have a good story to tell--and those are their words, ``a good story to tell.''

Apparently, though, there is someone in this administration-- President Obama's administration--who didn't want them to say anything for as long as they could possibly get away with not saying anything. I finally got Commissioner Hamburg on the phone in June of this year. Commissioner Hamburg personally assured me the FDA was going to fully cooperate with my investigation. Yet the FDA has provided me with nothing but misleading and incomplete responses.

The FDA has failed to measure up to Commissioner Hamburg's pledge of cooperation. The FDA buried its head in the sand in hopes I would lose interest and go away. They don't know me very well. That is not going to happen.

I don't care who is in charge of the executive branch--Republican or Democrat--I am going to continue demanding answers. When government bureaucrats obstruct and intercept my communications with protected whistleblowers, I am not going to stop. When government bureaucrats stonewall for months on end, I will not stop. When government bureaucrats try and muddy the waters and mislead, I will not stop. I intend to get to the bottom of it.

I will continue to press the FDA until we know who authorized spying. Can my colleagues imagine spying in American government, a transparent government--supposed to be transparent--spying on whistleblowers who are protected by law and who have a special office set up to protect them, and spying on communications between a lawyer and their client?

Someone within the FDA specifically authorized spying on private communications with my own office and with several other Members of Congress. Someone at FDA specifically authorized spying on private communications with Congressman Van Hollen's office. Someone at FDA specifically authorized spying on private communications with the staff of the Senate Special Committee on Aging. Someone at FDA specifically authorized spying on private communications with the lawyers for whistleblowers, and those lawyers are called the Office of Special Counsel.

These whistleblowers thought the FDA was approving drugs and treatment it shouldn't. These whistleblowers thought the FDA was caving to pressure from the companies who were applying for FDA approval. They have a right to express those concerns without any fear of retaliation whatsoever, if the law is going to be followed--the law protecting whistleblowers. But after doing so, two of these whistleblowers were fired, two more were forced to leave FDA, and five of them

were subjected to an intense spying campaign.

Senior FDA officials may have broken the law. They authorized the capturing of personal e-mail passwords through keystroke logging software. That potentially allowed them to log in to the whistleblower's personal e-mail accounts and access e-mails that were never even accessed from a work computer. Without a subpoena or warrant, that would be a criminal violation.

After 6 months, FDA finally denied that occurred. However, that denial was based on the word of one unnamed information technology employee involved in the monitoring. We need a more thorough investigation than that.

I have asked the FDA to make that person and several other witnesses available for interviews with my staff. We will see how cooperative FDA plans to be now. I will continue to press the FDA to open every window and every door. Eventually enough sunlight on this agency will cleanse it.

FDA gets paid to protect the public, not to keep us in the dark. Secret monitoring programs, spying on Congress, and retaliating against whistleblowers--this is a sad commentary on the state of affairs at the

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

Madam President, President Obama and his administration claim to be open and above board in their actions. As recently as July 1, the White House Chief of Staff, Jack Lew, told a television audience:

This administration has been the most transparent

administration ever.

So I come to the floor now to say that is simply not the case, and I am going to highlight an outstanding example of how it is not the case.

Last month, an attorney with the Department of Justice from the Civil Rights Division attended a public meeting in Louisiana--a public meeting in her official capacity. Before the meeting began, this attorney, Rachel Hranitzky, reportedly asked whether any representatives of the media were present at this meeting. A reporter from the Daily Iberian identified himself. This Justice Department attorney then announced: ``You can quote those who speak, but you can't quote me.''

On what basis does the Justice Department presume to tell a reporter who can be quoted at a public meeting? The reporter had the same question. It has been reported that he asked her to cite legal authority which would support her claim that he could not quote a Justice Department attorney at a public meeting. Ms. Hranitzky provided no such law. She did say the Justice Department has special rules on how its attorneys can be quoted. She did not back up that statement, however. So here is a public meeting anyone could attend and hear a lawyer from their government speak on civil rights enforcement. Yet a representative of that government claimed that it was the policy of the Justice Department that the press would have fewer rights than the general public to quote what that government representative said at that public meeting. This undercuts the claim that ``[t]his Administration has been the most transparent administration ever,'' going back to the quote of the Chief of Staff.

This refusal to allow the public to know how government officials are performing their job is totally unacceptable--and I hope to everybody it would be unacceptable.

As appalling as this reported action was, what followed was even worse. Ms. Hranitzky tried to kick the reporter out of an open meeting because he questioned her. She relented after he said--regrettably but understandably, in my view--that he would not quote her.

Then the Justice Department attorney totally abused her power, according to press reports. She told the reporter she could have the Justice Department call the newspaper's publishers or editors and say something such as this: You don't want to get on the Department of Justice's bad side.

That statement represents a raw abuse of power.

We expect the Justice Department to investigate law-breaking and pursue appropriate cases without regard to politics. Threatening to use the power to bring a criminal case or civil action against any entity because it had the temerity to insist that the Department of Justice obey the first amendment is outrageous.

The newspaper has protested to the Justice Department and has not, to my knowledge, received any response. The Department's public comment on the incident does not deny that any of the reported statements were made.

That the Civil Rights Division and the Department of Justice have not committed to allowing the press to quote its attorneys at public meetings a month after one of its attorneys has claimed that it is the Department's policy not to permit such reporting is completely unacceptable. It leads one to ask: What does the Civil Rights Division wish to hide?

I have received many complaints concerning the enforcement actions of the Civil Rights Division. When the division's attorneys will not allow themselves to be quoted, we can only conclude that they are saying things about enforcing the law that the American people would never accept.

There are no statutes that deny the media the right to quote statements of Justice Department officials that are made at public meetings. If there were, they would violate the first amendment's protection of freedom of speech as well as protection of freedom of the press. There should be no Justice Department policies to that effect either, and for the very same reason.

This administration says it is transparent. It wants people to believe that, but then it wants to prevent the press from reporting what it says in public. To carry out that plan, it threatens those reporters with a politically motivated legal action. That is thuggish, not transparent.

To the extent the Department has a policy of preventing the press from quoting the statements of its attorneys at public meetings, that policy should be reversed immediately to comply with the first amendment. Whether it has a policy or not, the attorney who claimed that such a policy existed and tried to expel the reporter from a public meeting because he might quote her, and threatened the reporter for getting on the Department of Justice's bad side, should be appropriately disciplined.

I suggest the absence of a quorum.

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

Madam President, I come to the floor at this point to counteract and add substance to something the majority leader said today in regard to taxes.

Recently, the Congressional Budget Office released an update to its report on average effective tax rates. Several of my colleagues on the other side of the aisle have pounced on this report claiming that tax rates are at historic lows.

In a floor speech just this morning the majority leader said the lowest tax rates in 30 years was ``thanks to President Obama, who has consistently fought to lower taxes for the middle-class families over the last 3\1/2\ years.'' However, the majority leader and others of his political party are only telling half the story. The report also shows that incomes of households in all income groups have declined by an average of 12 percent since 2007. This means, then, that Americans are 12 percent poorer than they were in 2007.

Now, should we also thank President Obama for this reduction in income? Essentially, this is what the majority leader is doing when he thanks President Obama for lower tax rates because when individuals have less income, they pay less in taxes. Now, isn't that common sense?

Millions of Americans are out of work and have very little or no income. You would have better luck getting blood out of a turnip than collecting income taxes from someone who has no income.

Over the past weeks and months we have heard a lot about income inequality. Occupy Wall Street has been very vocal on this issue. Many Members of Congress have also expressed concern that income inequality is ever increasing. The Finance Committee, of which I am a member, just recently had a hearing on this very topic. This most recent CBO data shows that income inequality is at the lowest point in more than a decade. The share of income held by the top 1 percent has shrunk by 28 percent. At the same time, the bottom 60 percent of households saw their share of income increase by an average 11 percent.

So perhaps my friends on the other side of the aisle do have reason to cheer: The rich are much less rich but, of course, the poor are poorer as well. It is just that those in the lower incomes did not see their income shrink by as much as higher income people.

Of course, those in the bottom 60 percent of households are not better off today than they were when income inequality was greater. In fact, they are poorer and struggling more than ever. So I just hope my colleagues on the other side of the aisle keep that in mind as we try to create a better future, and do it for everyone.

Reduction in income inequality should not be a goal in and of itself. What really matters is individual well-being and opportunity for everybody to succeed. This is best achieved, then, through progrowth policies aimed at growing the economic pie, not by targeting certain unpopular groups for tax hikes.

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

Mr. President, I rise today to introduce important regulatory reform legislation.

Recently, when describing the state of our economy, President Obama said that the private sector was ``doing fine.''

I disagree. I think that the American people disagree with the President's statement.

There are 12.7 million Americans unemployed and another 8.2 million underemployed. 5.4 million Americans have been unemployed for 27 weeks or more.

That's not ``doing fine.''

The Federal Government needs to do everything possible to create an environment that will allow private sector employers to create jobs. To accomplish that, common sense would tell us that the government needs to remove barriers to job creation rather than erect new ones. The Federal Government needs to listen to employers so it can learn from them exactly what it can do to help.

Unfortunately, the Obama administration hasn't listened. In fact, unbelievably it is actually doing the opposite of what employers are saying they need.

Employers are saying that they need relief from job killing regulations.

For example, according to a Gallup survey, small-business owners in the United States are most likely to say that complying with government regulations is the biggest problem facing them today.

Indeed, the burden of regulations is overwhelming. Recently, the Small Business Administration estimated that the Federal regulatory burden has reached $1.75 trillion per year.

So what has the Obama administration's response been?

It is planning to increase the number of regulations.

The Obama administration's regulatory agenda has thousands of regulations in its production line, more than a hundred of which will have a major impact on the economy. Those are on top of more than one thousand regulations already completed.

I am sorry to say that the news gets even worse. On top of the thousands of new regulations it to impose, it appears that the administration is trying to get around the procedures governing how regulations are enacted.

In recent years, consent decrees and settlement agreements have been used to circumvent the laws and procedures that govern how regulations are enacted and to speed up the process in ways that limit the public's ability to fully participate and to exercise the rights guaranteed by our laws.

These consent decrees or settlement agreements may come as a surprise to the regulated industry and the public. They usually establish truncated deadlines for the agency to promulgate a regulation.

The lack of advance notice and the expedited schedule for the proposal and promulgation of regulations allows an agency to avoid the input that comes with meaningful public participation. It may also allow agencies to short-circuit the analytical requirements of regulatory process statutes, such as the Administrative Procedure Act. Expedited deadlines further allow agencies to undercut the review of proposed regulations by the Office of Management and Budget's Office of Information and Regulatory Affairs OIRA.

The practice of using consent decrees and settlement agreements to enact regulations has become known as ``sue-and-settle'' litigation.

The dangers of sue-and-settle litigation and of government by consent decree are not a new problem.

Nearly 30 years ago, Judge Malcom Wilkey of the D.C. Circuit warned about the dangers of collusive consent decrees. In his dissenting opinion in Citizens for a Better Environment v. Gorsuch, Judge Wilkey explained:

Government by consent decree enshrines at its very center

those special interest groups who are party to the decree.

They stand in a strong tactical position to oppose changing

the decree, and so likely will enjoy material influence on

proposed changes in agency policy.

As a policy device, then, government by consent decree

serves no necessary end. It opens the door to unforeseeable

mischief; it degrades the institutions of representative

democracy and augments the power of special interest groups.

It does all of this in a society that hardly needs new

devices that emasculate representative democracy and

strengthen the power of special interests.

Because the Obama administration is trying to dramatically increase the number of regulations, we must make sure that the laws and procedures governing rulemaking are followed and followed in a meaningful way.

The debate about sue-and-settle litigation is important because it raises questions about fairness, transparency and public participation in administrative rulemaking. It also raises the issue of whether meaningful judicial review is taking place.

Under the Administrative Procedure Act and other laws, the public and affected persons, in particular, have a right to adequate notice and an opportunity to comment on a proposed regulation. They also have a right to have their comments fully considered.

However, when sue-and-settle litigation is used real, public participation is effectively eliminated.

Generally speaking, the agreement on how to regulate is reached without the full input of the people and businesses that are affected. Discussions are held and agreements may be reached between government officials and special interest groups outside the public process. This is particularly true where career employees and political appointees at agencies share the agenda of the special interest group suing the agency and use the lawsuit as an opportunity to implement their common goals.

Also, the negotiated deadlines for creating the new regulation can be so accelerated that the public's comments might receive little or no true consideration.

Keep in mind that these regulations often involve complex scientific and

economic issues. Those issues cannot generally be fully and properly considered under a truncated time frame.

Another fundamental aspect of rulemaking is the opportunity to challenge a decision by participating as an intervenor. However, with sue-and-settle litigation, special interest groups and the government may reach an agreement before a lawsuit is even filed. This eliminates the opportunity for members of the public to intervene in the case to protect their interests.

Even where a settlement occurs after affected parties may have been granted intervention, these parties have little or no chance to participate in settlement discussions because they are not invited by the government and the special interest groups.

Moreover, when an agency creates a regulation through sue-and-settle litigation, it reorganizes its work by promising to take specific actions at specific times, before or instead of other projects that may be of greater benefit to the public.

Also, sue-and-settle litigation helps officials and administrations to avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, officials are able to point to a court order and maintain that they were required or forced to promulgate a controversial regulation.

The case of American Nurses Association v. Jackson is an example of the sue-and-settle phenomenon.

In that case, a group of environmental organizations sued the Environmental Protection Agency, EPA, in December 2008, challenging the agency's failure to create emissions standards for pollutants from power plants under the Clean Air Act. Subsequently, the Utility Air Regulatory Group, UARG, representing the utility industry, intervened as a defendant in the case.

On October 22, 2009, the plaintiffs and the EPA filed a proposed consent decree. It was the result of a deal struck exclusively between them. They did not include the UARG in their discussions. Although the judge expressed concerns about the exclusion of the UARG from the settlement discussions, she was satisfied when the plaintiffs and the EPA informed her that this practice was the ``norm.''

Under the consent decree, the EPA conceded that it had failed to perform a mandatory duty under the Clean Air Act by failing to issue a ``maximum achievable control technology'', MACT, regulation for power plants. The EPA pledged that it would issue a proposed regulation by March 16, 2011 and a final regulation by November 16, 2011.

The UARG objected to the consent decree. It argued that the proposed decree improperly limited the government's discretion because it required the EPA to find that standards under 112(d) of the Clean Air Act were required. Consequently, the decree prevented the agency from either declining to issue standards or adopting other standards instead of the more burdensome MACT standard.

Although acknowledging the significance of the UARG's arguments, the judge nevertheless rejected them in its short opinion approving the consent decree.

As to the language limiting the EPA's discretion in the rulemaking, the judge stated that the EPA believed itself to be obligated to promulgate 112(d) standards and, ``and by entering this consent decree the Court [wa]s only accepting the parties' agreement to settle, not adjudicating whether EPA's legal position [wa]s correct.'' The judge simply believed that ``[i]f necessary, [the] UARG c[ould] challenge [the] EPA's final rule and its legal position.''

With regard to the UARG's argument that the time frame within which the EPA proposed to carry out the rulemaking was insufficient, the judge noted that she ``appreciate[d]'' the concern that the schedule was too short for the critical and expensive regulatory decisions that would be made. Nevertheless, she held that it was enough that the proposed consent decree allowed for a change of the schedule if needed.

The judge's reasoning on this point was interesting given that she acknowledged in a footnote that under the consent decree, the UARG could not petition for an extension of the deadlines.

In the end, the judge acknowledged that the concerns raised by the UARG were not insubstantial. However, she did not believe that she could gauge the adequacy, or lack thereof, of the schedule. Consequently, in a somewhat cavalier manner the judge concluded that: ``[s]hould haste make waste, the resulting regulations will be subject to successful challenge''. . . . If EPA needs more time to get it right, it can seek more time.''

Unfortunately, it appears that the EPA's proposed regulation contained significant errors. Indeed, the EPA did not analyze the impact of its regulation on electric reliability or provide sufficient time for industry to do so.

In November of 2011, the UARG brought its concerns to the judge, asking for relief from the consent decree.

In particular, it argued that more time was needed to respond to the voluminous comments submitted during the rulemaking process, to fix the serious flaws, and to then more carefully consider the promulgation of a rule with such serious and far-reaching consequences. For example, the schedule under the consent decree only allowed 104 days for the EPA to consider and respond to 20,000 unique, public comments received before it published the final rule. In total, there were 960,000 comments submitted.

The UARG's motion was supported by twenty-four states and Governor Terry Branstad on behalf of the people of Iowa. As part of their amicus brief, they pointed out that the American Coalition for Clean Coal Electricity, ACCCE, had estimated that the rule promulgated under the consent decree would result in the loss of 1.44 million jobs in the United States between 2013 and 2020. Because of the rule, the ACCCE also predicts national electricity price increases in 2016 to average 11.5 percent, with an increase of 23.5 percent in some regions.

The EPA issued a final rule on December 21, 2011, and has argued that the UARG's motion is moot.

As it stands, the rule is among the most costly of rules ever promulgated by the EPA with the agency estimating that the annualized cost at $9.6 billion in 2015. Industry estimates are even higher. Petitions for reconsideration of the rule are pending and more lawsuits are likely.

The EPA could have done it right the first time by crafting a sensible, workable rule that both protects the environment and can be implemented without causing unnecessary job losses or higher electricity prices for hard-working families. Instead, we have flawed, controversial regulation that may have to be rewritten.

Although we don't know how this will all turn out, we have to remember that the process by which this rule was created was the product of a consent decree.

In sum, when special interest groups and agencies engage in sue-and- settle litigation, the end product is a regulation that implements the priorities of the special interest groups. Moreover, these regulations are created under schedules that render notice-and-comment rights a mere formality, eliminating the opportunities for regulated entities, the public and the OIRA to have any input on the content of final regulations.

That is why I'm introducing the Sunshine for Regulatory Decrees and Settlements Act of 2012. Senators Kyl, Cornyn, Coburn, Lee and Paul are cosponsors of the bill.

Representative Benjamin Quayle of Arizona has introduced a companion bill in the House.

The Sunshine bill endeavors to solve the problems I have outlined. It does this by enacting reasonable pro-transparency measures. I'll just outline a few of those measures.

First, the Sunshine bill provides for greater transparency, requiring agencies publicly to post and report to Congress information on sue- and-settle complaints, decrees and settlements.

Second, the bill prohibits same-day filing of complaints and pre- negotiated consent decrees and settlement agreements in cases seeking to compel agency action. Instead, it requires that consent decrees and settlement agreements be filed only after interested parties have been able to intervene in the litigation and join settlement negotiations and only after any proposed decree or settlement has been published for notice and comment.

Third, the Sunshine bill requires courts considering whether to approve proposed consent decrees and settlement agreements to account for public comments and compliance with regulatory process statutes and executive orders. This bill would facilitate public participation by allowing comment on any issue related to the matters alleged in the complaint or addressed in the proposed agreement. Government agencies would be required to respond to comments, and the court would assess whether the proposed schedule allows sufficient time for real and meaningful, public comment on the regulation.

Fourth, the bill requires the Attorney General or, where appropriate, the defendant agency's head, to certify to the court that he or she has approved any proposed consent decree or settlement agreement that includes terms that: convert into a duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations, commit an agency to expend funds that have not been appropriated and budgeted, commit an agency to seek a particular appropriation or budget authorization, divest an agency of discretion committed to it by statute or the Constitution, or otherwise afford any relief that the court could not enter under its own authority.

Finally, the Sunshine bill makes it easier for succeeding administrations to successfully move the courts for modifications of a prior administration's consent decrees by providing for de novo review of motions to modify if the circumstances have changed.

Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process.

Regulations are laws. The procedure and process used to create them are important. They are part of our system. The American system of lawmaking and judicial review is a model for the world. Our system should not be distorted or manipulated.

Regulations must be made in the open, through the procedures and processes established under our laws.

The Sunshine for Regulatory Decrees and Settlements Act will help to ensure that established and well-grounded protections remain in place, while maintaining the government's ability to enter into consent decrees and settlement agreements, when appropriate.

I urge all of my colleagues to work with me and to support this legislation.

Mr. President, I rise today to introduce important regulatory reform legislation.

Recently, when describing the state of our economy, President Obama said that the private sector was ``doing fine.''

I disagree. I think that the American people disagree with the President's statement.

There are 12.7 million Americans unemployed and another 8.2 million underemployed. 5.4 million Americans have been unemployed for 27 weeks or more.

That's not ``doing fine.''

The Federal Government needs to do everything possible to create an environment that will allow private sector employers to create jobs. To accomplish that, common sense would tell us that the government needs to remove barriers to job creation rather than erect new ones. The Federal Government needs to listen to employers so it can learn from them exactly what it can do to help.

Unfortunately, the Obama administration hasn't listened. In fact, unbelievably it is actually doing the opposite of what employers are saying they need.

Employers are saying that they need relief from job killing regulations.

For example, according to a Gallup survey, small-business owners in the United States are most likely to say that complying with government regulations is the biggest problem facing them today.

Indeed, the burden of regulations is overwhelming. Recently, the Small Business Administration estimated that the Federal regulatory burden has reached $1.75 trillion per year.

So what has the Obama administration's response been?

It is planning to increase the number of regulations.

The Obama administration's regulatory agenda has thousands of regulations in its production line, more than a hundred of which will have a major impact on the economy. Those are on top of more than one thousand regulations already completed.

I am sorry to say that the news gets even worse. On top of the thousands of new regulations it to impose, it appears that the administration is trying to get around the procedures governing how regulations are enacted.

In recent years, consent decrees and settlement agreements have been used to circumvent the laws and procedures that govern how regulations are enacted and to speed up the process in ways that limit the public's ability to fully participate and to exercise the rights guaranteed by our laws.

These consent decrees or settlement agreements may come as a surprise to the regulated industry and the public. They usually establish truncated deadlines for the agency to promulgate a regulation.

The lack of advance notice and the expedited schedule for the proposal and promulgation of regulations allows an agency to avoid the input that comes with meaningful public participation. It may also allow agencies to short-circuit the analytical requirements of regulatory process statutes, such as the Administrative Procedure Act. Expedited deadlines further allow agencies to undercut the review of proposed regulations by the Office of Management and Budget's Office of Information and Regulatory Affairs OIRA.

The practice of using consent decrees and settlement agreements to enact regulations has become known as ``sue-and-settle'' litigation.

The dangers of sue-and-settle litigation and of government by consent decree are not a new problem.

Nearly 30 years ago, Judge Malcom Wilkey of the D.C. Circuit warned about the dangers of collusive consent decrees. In his dissenting opinion in Citizens for a Better Environment v. Gorsuch, Judge Wilkey explained:

Government by consent decree enshrines at its very center

those special interest groups who are party to the decree.

They stand in a strong tactical position to oppose changing

the decree, and so likely will enjoy material influence on

proposed changes in agency policy.

As a policy device, then, government by consent decree

serves no necessary end. It opens the door to unforeseeable

mischief; it degrades the institutions of representative

democracy and augments the power of special interest groups.

It does all of this in a society that hardly needs new

devices that emasculate representative democracy and

strengthen the power of special interests.

Because the Obama administration is trying to dramatically increase the number of regulations, we must make sure that the laws and procedures governing rulemaking are followed and followed in a meaningful way.

The debate about sue-and-settle litigation is important because it raises questions about fairness, transparency and public participation in administrative rulemaking. It also raises the issue of whether meaningful judicial review is taking place.

Under the Administrative Procedure Act and other laws, the public and affected persons, in particular, have a right to adequate notice and an opportunity to comment on a proposed regulation. They also have a right to have their comments fully considered.

However, when sue-and-settle litigation is used real, public participation is effectively eliminated.

Generally speaking, the agreement on how to regulate is reached without the full input of the people and businesses that are affected. Discussions are held and agreements may be reached between government officials and special interest groups outside the public process. This is particularly true where career employees and political appointees at agencies share the agenda of the special interest group suing the agency and use the lawsuit as an opportunity to implement their common goals.

Also, the negotiated deadlines for creating the new regulation can be so accelerated that the public's comments might receive little or no true consideration.

Keep in mind that these regulations often involve complex scientific and

economic issues. Those issues cannot generally be fully and properly considered under a truncated time frame.

Another fundamental aspect of rulemaking is the opportunity to challenge a decision by participating as an intervenor. However, with sue-and-settle litigation, special interest groups and the government may reach an agreement before a lawsuit is even filed. This eliminates the opportunity for members of the public to intervene in the case to protect their interests.

Even where a settlement occurs after affected parties may have been granted intervention, these parties have little or no chance to participate in settlement discussions because they are not invited by the government and the special interest groups.

Moreover, when an agency creates a regulation through sue-and-settle litigation, it reorganizes its work by promising to take specific actions at specific times, before or instead of other projects that may be of greater benefit to the public.

Also, sue-and-settle litigation helps officials and administrations to avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, officials are able to point to a court order and maintain that they were required or forced to promulgate a controversial regulation.

The case of American Nurses Association v. Jackson is an example of the sue-and-settle phenomenon.

In that case, a group of environmental organizations sued the Environmental Protection Agency, EPA, in December 2008, challenging the agency's failure to create emissions standards for pollutants from power plants under the Clean Air Act. Subsequently, the Utility Air Regulatory Group, UARG, representing the utility industry, intervened as a defendant in the case.

On October 22, 2009, the plaintiffs and the EPA filed a proposed consent decree. It was the result of a deal struck exclusively between them. They did not include the UARG in their discussions. Although the judge expressed concerns about the exclusion of the UARG from the settlement discussions, she was satisfied when the plaintiffs and the EPA informed her that this practice was the ``norm.''

Under the consent decree, the EPA conceded that it had failed to perform a mandatory duty under the Clean Air Act by failing to issue a ``maximum achievable control technology'', MACT, regulation for power plants. The EPA pledged that it would issue a proposed regulation by March 16, 2011 and a final regulation by November 16, 2011.

The UARG objected to the consent decree. It argued that the proposed decree improperly limited the government's discretion because it required the EPA to find that standards under 112(d) of the Clean Air Act were required. Consequently, the decree prevented the agency from either declining to issue standards or adopting other standards instead of the more burdensome MACT standard.

Although acknowledging the significance of the UARG's arguments, the judge nevertheless rejected them in its short opinion approving the consent decree.

As to the language limiting the EPA's discretion in the rulemaking, the judge stated that the EPA believed itself to be obligated to promulgate 112(d) standards and, ``and by entering this consent decree the Court [wa]s only accepting the parties' agreement to settle, not adjudicating whether EPA's legal position [wa]s correct.'' The judge simply believed that ``[i]f necessary, [the] UARG c[ould] challenge [the] EPA's final rule and its legal position.''

With regard to the UARG's argument that the time frame within which the EPA proposed to carry out the rulemaking was insufficient, the judge noted that she ``appreciate[d]'' the concern that the schedule was too short for the critical and expensive regulatory decisions that would be made. Nevertheless, she held that it was enough that the proposed consent decree allowed for a change of the schedule if needed.

The judge's reasoning on this point was interesting given that she acknowledged in a footnote that under the consent decree, the UARG could not petition for an extension of the deadlines.

In the end, the judge acknowledged that the concerns raised by the UARG were not insubstantial. However, she did not believe that she could gauge the adequacy, or lack thereof, of the schedule. Consequently, in a somewhat cavalier manner the judge concluded that: ``[s]hould haste make waste, the resulting regulations will be subject to successful challenge''. . . . If EPA needs more time to get it right, it can seek more time.''

Unfortunately, it appears that the EPA's proposed regulation contained significant errors. Indeed, the EPA did not analyze the impact of its regulation on electric reliability or provide sufficient time for industry to do so.

In November of 2011, the UARG brought its concerns to the judge, asking for relief from the consent decree.

In particular, it argued that more time was needed to respond to the voluminous comments submitted during the rulemaking process, to fix the serious flaws, and to then more carefully consider the promulgation of a rule with such serious and far-reaching consequences. For example, the schedule under the consent decree only allowed 104 days for the EPA to consider and respond to 20,000 unique, public comments received before it published the final rule. In total, there were 960,000 comments submitted.

The UARG's motion was supported by twenty-four states and Governor Terry Branstad on behalf of the people of Iowa. As part of their amicus brief, they pointed out that the American Coalition for Clean Coal Electricity, ACCCE, had estimated that the rule promulgated under the consent decree would result in the loss of 1.44 million jobs in the United States between 2013 and 2020. Because of the rule, the ACCCE also predicts national electricity price increases in 2016 to average 11.5 percent, with an increase of 23.5 percent in some regions.

The EPA issued a final rule on December 21, 2011, and has argued that the UARG's motion is moot.

As it stands, the rule is among the most costly of rules ever promulgated by the EPA with the agency estimating that the annualized cost at $9.6 billion in 2015. Industry estimates are even higher. Petitions for reconsideration of the rule are pending and more lawsuits are likely.

The EPA could have done it right the first time by crafting a sensible, workable rule that both protects the environment and can be implemented without causing unnecessary job losses or higher electricity prices for hard-working families. Instead, we have flawed, controversial regulation that may have to be rewritten.

Although we don't know how this will all turn out, we have to remember that the process by which this rule was created was the product of a consent decree.

In sum, when special interest groups and agencies engage in sue-and- settle litigation, the end product is a regulation that implements the priorities of the special interest groups. Moreover, these regulations are created under schedules that render notice-and-comment rights a mere formality, eliminating the opportunities for regulated entities, the public and the OIRA to have any input on the content of final regulations.

That is why I'm introducing the Sunshine for Regulatory Decrees and Settlements Act of 2012. Senators Kyl, Cornyn, Coburn, Lee and Paul are cosponsors of the bill.

Representative Benjamin Quayle of Arizona has introduced a companion bill in the House.

The Sunshine bill endeavors to solve the problems I have outlined. It does this by enacting reasonable pro-transparency measures. I'll just outline a few of those measures.

First, the Sunshine bill provides for greater transparency, requiring agencies publicly to post and report to Congress information on sue- and-settle complaints, decrees and settlements.

Second, the bill prohibits same-day filing of complaints and pre- negotiated consent decrees and settlement agreements in cases seeking to compel agency action. Instead, it requires that consent decrees and settlement agreements be filed only after interested parties have been able to intervene in the litigation and join settlement negotiations and only after any proposed decree or settlement has been published for notice and comment.

Third, the Sunshine bill requires courts considering whether to approve proposed consent decrees and settlement agreements to account for public comments and compliance with regulatory process statutes and executive orders. This bill would facilitate public participation by allowing comment on any issue related to the matters alleged in the complaint or addressed in the proposed agreement. Government agencies would be required to respond to comments, and the court would assess whether the proposed schedule allows sufficient time for real and meaningful, public comment on the regulation.

Fourth, the bill requires the Attorney General or, where appropriate, the defendant agency's head, to certify to the court that he or she has approved any proposed consent decree or settlement agreement that includes terms that: convert into a duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations, commit an agency to expend funds that have not been appropriated and budgeted, commit an agency to seek a particular appropriation or budget authorization, divest an agency of discretion committed to it by statute or the Constitution, or otherwise afford any relief that the court could not enter under its own authority.

Finally, the Sunshine bill makes it easier for succeeding administrations to successfully move the courts for modifications of a prior administration's consent decrees by providing for de novo review of motions to modify if the circumstances have changed.

Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process.

Regulations are laws. The procedure and process used to create them are important. They are part of our system. The American system of lawmaking and judicial review is a model for the world. Our system should not be distorted or manipulated.

Regulations must be made in the open, through the procedures and processes established under our laws.

The Sunshine for Regulatory Decrees and Settlements Act will help to ensure that established and well-grounded protections remain in place, while maintaining the government's ability to enter into consent decrees and settlement agreements, when appropriate.

I urge all of my colleagues to work with me and to support this legislation.

Mr. President, today I lift my hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment based immigrants and change the per-country numerical limitations for family-based immigrants. When I placed a hold on the bill, I was concerned that the bill did nothing to better protect Americans at home who seek high- skilled jobs during this time of record unemployment. Today, I lift my hold because I have reached an agreement with the senior Senator from New York, the chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security.

I have spent a lot of time and effort into rooting out fraud and abuse in our visa programs, specifically the H-1B visa program. I have always said this program can and should serve as a benefit to our country, our economy and our U.S. employers. However, it is clear that it is not working as intended, and the program is having a detrimental effect on American workers.

For many years, Senator Durbin and I have worked on legislation to close the loopholes in the H-1B visa program. Our legislation would ensure that American workers are afforded the first chance to obtain the available high paying and high skilled jobs in the United States. It would make sure visa holders know their rights. It would strengthen the wage requirements, ridding the incentives for companies to hire cheap, foreign labor.

While I could not get everything that was included in the Durbin- Grassley visa reform bill, there is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H-1B visa program.

I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers. I look forward to working with others as H.R. 3012 progresses in the Senate.

Mr. President, I didn't come to the floor to speak about the wind energy tax credit, but I wish to say to my colleagues on the other side of the aisle that I agree with them, and they probably know I agree with them because I am the author of the wind energy tax credit of 1992. I often tell people that when we worked so hard on that, I did not have the slightest idea it would turn out to be such a

big thing; that Iowa would be second in wind energy production in the Nation. I think Texas is No. 1. For sure, I did not know we would have manufacturing in our State as a result of it. We have had companies come from Spain, from Germany and then we have had from Colorado and Arizona component manufacturers that have come to Iowa. There are about 4,000 people, maybe 5,000 people, employed in my State in that, so I hope we can get it reauthorized.

Yes.

For the Senator from Rhode Island, I believe that Rhode Island facility went to an existing ethanol plant in Shenandoah, IA-- southwest Iowa.

Mr. President, I have come to the floor to speak about the issue of taxes--that is now a big issue--not about the issue the majority will set before the Senate to talk about today and tomorrow and however long it takes but the issue we heard about from President Obama yesterday, the talk about the need to raise taxes on those earning more than $250,000. We heard this from him again just yesterday, as we did last year quite a bit and the year before quite a bit, when he spoke in support of increasing taxes on the so-called wealthy.

In his speech yesterday, he made the following points: that those making under $250,000 deserve certainty and they deserve it now; another point is that it is OK to increase taxes on small business owners making more than $250,000 because those tax increases would affect less than 3 percent of the small business owners; another point, that those making more than $250,000 are not paying their fair share; and another point, that we cannot afford to extend the 2001 and 2003 bipartisan tax relief to these households because of the impact on the deficit; and last, that if Congress sent him a bill to extend the 2001 bipartisan tax relief just for those making under $250,000, he would sign the bill into law right away.

I come to the floor to highlight what the President is not telling the taxpayers. First, on the issue of certainty, the President fails to mention what his plans are for the dozens of tax provisions that expired at the end of last year and the dozens more that are expiring at the end of this year. These provisions affect everyone from teachers who dip into their own pockets to purchase school supplies to families and students struggling to pay for higher tuition. They also include key incentives for businesses to invest in new equipment and engage in research needed to produce the products of tomorrow.

The President also failed to mention what he would do about the alternative minimum tax that threatens an ever-increasing number of middle-class Americans each year, the same middle class that the President is telling the world he wants to protect--and nothing wrong with protecting the middle class. Over the past several years, legislation was enacted in regard to the alternative minimum tax to avoid and avert this crisis happening to the middle class, and we did it through a series of patches to increase the exemption amount so these 30 million middle-class taxpayers are not hurt with the alternative minimum tax.

The President also fails to mention whether he continues to support the middle-class tax increases he included in his budget proposal. This is how the President proposes to tax the middle class. Would he reinstate the personal exemption phaseout and the Pease limitation on itemized deductions? Additionally, would he impose a new 28-percent limitation on itemized deductions? Each of these provisions comes with its own income thresholds and phaseout rules that increase complexity and increase taxpayer burden.

Finally, the President fails to mention the tax increases he supported to pay for the health care reform legislation. These provisions include a bigger haircut on the deductions for medical expenses, lower contribution amounts for flexible savings accounts, and taxes on artificial knees and hips that medical device manufacturers have to pass on to the patients.

Given all the looming tax increases the President failed to mention in his speech yesterday, it is difficult to see how extending just the 2001 and 2003 bipartisan tax relief provides certainty to taxpayers, including small business. The President agrees they are job creators and engines of our economy, so the President recognizes a fact of life that middle-class small businesspeople are job creators. Unfortunately, he defends his tax increase this way on small businesses, by claiming the impact will be minimal because only 2 to 3 percent of the small businesses would be subject to this tax increase. What the President fails to mention is that this 2 or 3 percent account for a large amount of economic activity and a large amount of the jobs created. We often talk--people on both sides of the aisle--about small business providing 70 percent of the new jobs being created in America.

I wish to see how the Joint Committee on Taxation, which is a nonpartisan congressional organization--and I wish to emphasize the nonpartisan aspect of this because we often refer to them as authorities in this area. According to this joint committee, 53 percent of the flowthrough business income would be subject to the President's proposed tax increases--so as I said, 70 percent of the new jobs created here--but this 2 or 3 percent also accounts for about 25 percent of all employment in America.

The President claims he wants to give the 97 percent of small businesses a sense of permanence. Yet the tax relief for those in this group is only for another year. How do we get permanence if we only want to provide tax policy for 1 year? It does not add up.

The President continues to claim we cannot afford to extend tax relief for those earning above $250,000 because of our current deficit situation, but he fails to mention any ideas for reducing the deficit by controlling spending or by enacting tax reform, which is the only real way to provide a sense of permanence and eliminate the uncertainty we all agree keeps small and even larger corporations from hiring.

At the start of his administration, the President established the Simpson-Bowles Commission to come up with a framework to address our current out-of-control spending as well as to reform the Tax Code. The Commission issued a report over 1 year ago that included substantive proposals on how to reform the Tax Code. There are some proposals in the Simpson-Bowles plan I like and some proposals I do not like. I like that it would streamline the Tax Code, reduce tax rates across the board, broaden the tax base, enhance economic opportunity in the process. At the same time, it violates one of my core tenets of tax reform: that it not increase taxes overall. But the Simpson-Bowles plan is at least a serious proposal. I think most everybody recognizes that.

However, the President failed to embrace the Simpson-Bowles plan and offered a token framework for corporate tax reform. While the President agrees our current corporate tax rate is too high, his framework is overly vague and provides little in the way of simplification. Instead, as one commentator put it, his proposal on corporate tax reform simply ``rearranges the deck chairs on the Titanic.''

That being said, at least the President took a position on lowering the corporate tax rate to 28 percent. This is in stark contrast to his ideas on individual tax reform he put on the table yesterday. Even thinner on details, his overarching principle for individual tax reform seems to be the wealthy should pay their fair share. Yet after years of talking about the wealthy paying their fair share, he never defines what rate or amount of tax constitutes fair share for individual taxpayers. Adopting this rhetoric seems to indicate support for using the Tax Code to reduce income disparity between the highest and lowest taxpayers. However, data from the nonpartisan Congressional Budget Office--again I emphasize nonpartisan--

shows the so-called wealthy already pay the bulk of the taxes and that our Tax Code is highly progressive.

I put a chart up. This chart will show that if all Federal taxes are considered, the top 5 percent of households pay an average effective rate of about 28 percent and account for nearly 45 percent of all Federal receipts. In contrast, the bottom 20 percent, as we can see, pay average effective tax rate of about 4 percent and account for less than 1 percent of all Federal receipts. All Federal taxes include individual income taxes, corporate tax, excise, and payroll tax.

The disparity is even greater when we only consider individual income taxes. This is actually a better measure, since the President proposes to increase just income taxes on the so-called wealthy.

If we look at the chart that is before us, we will see that the bottom 40 percent of households have an average effective tax rate below zero. In contrast, the top 5 percent have an average effective tax rate of nearly 18 percent and account for 61 percent of income tax receipts.

I have highlighted the top 5 percent in these charts because these are the households generally earning more than $250,000--in other words, these are the wealthy households, according to the President.

When we look at these numbers, it is fair to ask the President, once again, to define what he means by ``fair share.'' How high is the President willing to raise taxes to meet this objective? In other words, if this 5 percent is paying 61 percent of all the income tax receipts, how much more do they have to pay to satisfy the President in order to pay their fair share? In other words, define ``fair share.''

I have always stated that taxpayers should pay what they owe, not one penny more and not one penny less. Anyone who looks at my record will see I have fought long and hard to shut down loopholes and to ensure taxpayers of all income levels pay what they legally owe. However, I hold a fundamentally different view from the President on how the economy works and what the government's role should be and the rate of taxation in contributing to the government's role in enhancing the economy.

I believe the money one earns is that individual's money, not a pittance that a taxpayer can keep based upon the good graces of the government. I generally believe individuals have the right to enjoy the fruit of their success. I believe the best way to increase the wealth and livelihood of all Americans is through progrowth policies that increase the size of the economic pie, not by redistributing the pie based upon some unspecified definition of fairness.

I believe 18 percent of the gross domestic product of this country is good enough for the government to collect and spend, and for the most part it has been that way over a 50-year average of taxes. That benchmark of 18 percent is what the government has collected consistently regardless of the statutory tax rates. Whether tax rates have been high or low, they generally bring in about the same amount of money. In other words, just because they raise tax rates on the so- called wealthy people does not necessarily mean that we get the influx of revenue that some believe we will get. This is obviously something the President has not considered.

As I have done so often in recent years, I have come to the Senate floor to say we still end up with the same amount of money regardless of what the effective tax rate is because higher income individuals have the ability to choose the form of income they will receive. They also have a greater ability to decide when they will recognize this income, such as through the sale of stock, as a way to limit their taxable income in a given year. They also have accountants and attorneys to help them legally shield income from the view of the IRS. As taxes go up, so does the incentive to reduce one's income through legal and nonlegal means.

I have a chart that shows annual revenues as a percentage of gross national product in relationship to top marginal tax rates. This is in a period of time since World War II. So getting back to what I previously said, over a long period of time the revenue coming into the Federal Treasury tends to be about the same amount. I think this averages out to about 18.2 percent of GDP.

We can see during the Eisenhower years the marginal tax rate was 90 percent. Starting with Kennedy, it became 70 percent. Starting with Reagan, it became 50 percent. Once again, starting with Reagan, it came down to 30 percent. When Bush, the father, didn't keep his promise of, ``Read my lips; no new taxes,'' he gave in on that, it went back to 40 percent. Now under the 2001-2003 tax bills, it is at 35 percent. The President says we need to raise the tax rate back to this level.

As this chart shows, we can have high marginal tax rates or low marginal tax rates, but the people of this country have decided they are going to send just so much money to us bums in Congress to spend. So they decide how much we are going to get, and we can raise marginal tax rates, we can do what the first President Bush did, but we are still going to get about the same amount of revenue. So I hope the President takes that into consideration and also considers the negative aspect when marginal tax rates are reduced.

This means we are not going to be able to tax our way to surpluses. We are going to have to make substantial adjustments on the spending side to bring it in line with revenues. In other words, the bottom line of what I would like to tell the President is that the American people of this country have not come to the conclusion that they are undertaxed. They have come to the conclusion that Congress spends too much, and the problem isn't on the tax side; the problem is on the expenditure side.

History also shows that tax increases just lead to spending increases. Often on the floor of the Senate I quote Professor Vedder of Ohio State University who has studied tax increases and spending for more than two decades. Some of his research goes back to World War II. His most recent work on this subject was with Steven Moore and published in the Wall Street Journal:

Over the entire post World War II era through 2009, each

dollar of new tax revenue has been associated with $1.17 in

new spending.

So we raise a dollar here, and we spend $1.17 over there. It is pretty obvious that bringing in more revenue isn't going to reduce the deficit.

Another study by the National Bureau of Economic Research states that when it comes to fiscal adjustments:

Those based upon spending cuts and no tax increases are

more likely to reduce deficits and debt over Gross Domestic

Product ratios than those based upon tax increases. In

addition, adjustments on the spending side rather than on the

tax side are less likely to create recessions.

So we know increasing taxes, including on targeted groups, is not going to reduce the deficit. American workers and businesses deserve tax reform and tax certainty. There is bipartisan agreement that we need comprehensive tax reform. What we need to get that done is real leadership, to be sure.

Lack of leadership is not because of lack of interest. The Senate Finance Committee, on which I serve, has held more than a dozen tax reform hearings during this Congress. The Senate Budget Committee has also held tax reform hearings. What has been lacking is what is so important in this town, Presidential leadership.

The President's speech yesterday was just that, a speech. As I outlined, he spoke only about extending certain tax relief measures for those earning under $250,000. However, he failed to address other looming tax increases and failed to discuss how his other tax increase proposals provide the certainty that he claims he wants to provide.

It is easy for the President to engage in election year antics and goad Congress to send him a bill. Unfortunately, that is not leadership, and such speeches do nothing to help individuals and small businesses.

If the President really was concerned about preventing tax increases on the middle class and small businesses, he would at least be working with leaders in his own party to make sure they all agreed on who the wealthy in this country really are and who ought to have their taxes increased.

Democratic leaders in the House and Senate have signaled that they support extension of lower income tax rates for those making up to $1 million. In fact, a year ago this week, we in the Senate were debating the majority party's ``millionaire tax resolution.''

So if the President really wanted Congress to send him a bill that provided certainty to the taxpayers, he would make it a priority to get it done. Unfortunately, he is busy traipsing around the country raising money for his reelection. That is not leadership, and it is certainly not going to provide timely tax relief to the millions of taxpayers who need it.

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

Mr. President, I support the nomination of John Thomas Fowlkes, to be U.S. district judge for the Western District of Tennessee.

Although it is the practice and tradition of the Senate to not confirm circuit nominees in the closing months of a Presidential election year, we continue to confirm consensus district judge nominees. Today's vote will be the 152nd nominee of this President confirmed to the district and circuit courts. We also have confirmed two Supreme Court nominees during President Obama's term.

I continue to hear some Members repeatedly ask the question, ``What is different about this President that he has to be treated differently than all these other Presidents?'' I won't speculate as to any inference that might be intended by that question, but I can tell you that this President is not being treated differently than previous Presidents. By any objective measure, this President has been treated fairly and consistent with past Senate practices.

For example, with regard to the number of confirmations, let me put that in perspective for my colleagues with an apples-to-apples comparison. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during President Bush's entire second term the Senate confirmed a total of only 119 district and circuit court nominees. With Judge Fowlkes' confirmation today, we will have confirmed 33 more district and circuit nominees for President Obama than we did for President Bush, in similar circumstances.

During the last Presidential election year, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. Today, we will exceed the number of district court judges confirmed. We have already confirmed 5 circuit nominees, and this will be the 25th district judge confirmed this year. Those who say that this President is being treated differently either fail to recognize history or want to ignore the facts.

Judge Fowlkes received his B.A. from Valparaiso University in 1975 and his J.D. from University of Denver School of Law in 1977. From 1978 to 1979 he worked as an assistant public defender at the Shelby County Public Defender's Office, where he represented indigent defendants. In 1979, he joined the Shelby County District Attorney General's Office and served as an assistant district attorney for the next 10 years. There he tried nearly 150 jury trials, handling homicide, assault, sex offense, robbery, and burglary cases. In 1989, he became an assistant U.S. attorney, trying criminal cases until 2002. As an AUSA, he tried over 100 jury trials and handled all appellate level work. During his time at the attorney's office, Judge Fowlkes was a first assistant for several years, directing day-to-day operations of the office. From 2002 to 2007, Judge Fowlkes was the chief administrative officer for Shelby County. He was not engaged in the practice of law during this period.

In 2007, then-Governor Phil Bredesen appointed Judge Fowlkes to be a criminal court judge for Division VI of the 30th Judicial District at Memphis. In November 2008, he was elected to a full, 8-year term. In 2011, he was elected by judges of the 30th Judicial District to serve as presiding judge.

The ABA Standing Committee on the Federal Judiciary unanimously rated Judge Fowlkes as ``well qualified.''

I support the nomination and congratulate Judge Fowlkes on his confirmation today.

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

Mr. President, today I wish to pay tribute to SGT James Skalberg, Jr., who made the ultimate sacrifice on June 27, in Wardak Province, Afghanistan. James was driving his vehicle when an improvised explosive device detonated, injuring him fatally. My thoughts and prayers go out to his wife, Jessica, his son, Carter, his parents, James and Kelli, and all his other family and friends who are grieving his loss.

Sergeant Skalberg grew up an athlete. He graduated from Nishna Valley High School in Hastings, IA in 2005, and enlisted in the Army in 2007. James deployed to Iraq with his unit in 2008 through 2009 and deployed again to Afghanistan in 2011. His awards and decorations include the Bronze Star Medal, Purple Heart, Army Commendation Medal, Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, Driver's Badge, Air Assault Badge, and Combat Action Badge.

James is remembered by his family as having been loved by everyone for being a gentleman in every respect. He was remembered by teachers and coaches as a star player and caring student. He was carefree, easy going, reliable, levelheaded, and loving. He was a family man who loved his wife since they met as teenagers in high school, and his son, Carter, whom he hoped to one day teach to play basketball.

James was the kind of man we can be proud to call a native son of Iowa. He stood as an example to others in his actions and his character. We owe SGT James Skalberg, and others like him, our most sincere gratitude and appreciation for their willingness to make the ultimate sacrifice for our great country. I call on my colleagues in the Senate and every American to pay tribute to this brave American.

Mr. President, yesterday the Supreme Court overturned the mandatory Medicaid expansion in the Affordable Care Act. As of yesterday, the States now have a choice to expand or not expand coverage to the poorest people in society without being subjected to harsh Federal penalties.

I would like to draw attention to a speech I gave on the Senate floor in December 2011 on the subject of the constitutionality of the Medicaid expansion. I expressed my concerns then about the potential impact of a Supreme Court decision on Medicaid expansion.

I said on the floor that day:

A Supreme Court ruling in favor of the States in this case

could not only jeopardize the mandated Medicaid expansion in

the Affordable Care Act but could challenge the fundamental

structure of Medicaid and have broader implications outside

of health care.

The concerns I expressed then have, to a degree, come true.

Reading from a Washington Post editorial this morning about the Court ruling on Medicaid:

This restriction of federal authority may have greater

ramifications than the court's limiting of the Commerce

Clause. One can imagine challenges to federal conditions

across a wide spectrum of programs, including but not limited

to the environment, education and transportation.

This decision overturns the mandatory expansion of the Medicaid Program. While I realize most of the focus is on the decision related to the tax mandate, we should spend a moment talking about the consequence of the Medicaid decision.

Mr. President, one of the goals of the health care reform was to provide coverage for people in need. I would argue the people most in need of coverage are people without a job, people without an income, and the poorest of the poor. The Affordable Care Act required States to cover people below poverty through Medicaid. States were mandated to expand to cover people below poverty. Yesterday, the Supreme Court ruled that mandatory expansion unconstitutional.

Writing for the majority, Chief Justice Roberts said:

Nothing in our opinion precludes Congress from offering

funds under the Affordable Care Act to expand the

availability of health care, and requiring the States

accepting such funds to comply with the conditions on their

use. What Congress is not free to do is to penalize States

that choose not to participate in that new program by taking

away their existing Medicaid funding.

With this decision, States now have the option to expand Medicaid to cover people below poverty. Mr. President, the States had that option even before the Affordable Care Act was passed. So what does this decision mean in real terms?

It will be up to the States to determine if they will cover the poorest of the poor. The Federal Government cannot guarantee coverage. So now people with jobs will have to purchase insurance under the tax mandate. People without an income, people who are below poverty, are dependent upon the State in which they reside.

I know some people will believe the choice is perfunctory, that Medicaid expansion will move forward because the Federal Government has offered to pay for more than 90 percent of the expansion. But if you were a State, would you really trust a promise from a Federal Government that is $15 trillion in debt? If you were a State, would you really trust an Obama administration that proposed eliminating that special Federal payment rate through a proposal known as the blended rate?

States will very reasonably be risk averse. States can now expand if they choose to or not at all. No one should assume for a second all States will expand to cover as much as was mandated under the Affordable Care Act.

Of course, one might think people below poverty could still get health care through tax credits, but the people who wrote this bill made people below poverty ineligible for tax credits. That is right-- ineligible. It is all or nothing for the poor with Medicaid. With today's ruling, the answer is, nothing.

On December 15, 2011, I said on the Senate floor that the expansion of Medicaid and the coverage of poor people was in jeopardy because ``the White House and the Democratic majority put their partisan goals ahead of collaboration with Republicans and States to build legitimate public policy.''

Today, that is the outcome. When people with income, people with jobs are mandated to purchase health insurance and face a tax penalty if they do not, while the poorest people in society, those without a job or without income have a guarantee of nothing, I think victory laps are premature.

After this decision, a person in a family with an income of more than $80,000 a year would be guaranteed access to a subsidy to buy private insurance, while a person in a family with no income would be guaranteed nothing. When people below poverty, the people who can least afford coverage or the consequence of not having coverage are left with nothing, it sounds like failure to me.

I yield the floor.

Mr. President, I intend to object to proceeding to the nominations of Mark J. Mazur, to be an Assistant Secretary of the Treasury and Matthew S. Rutherford to be an Assistant Secretary of the Treasury.

My support for the final confirmation of these nominees will depend on both Treasury and Internal Revenue Service responses to questions I have posed regarding their implementation of the tax whistleblower program. I rewrote the statute in 2006 to encourage whistleblowing on big-dollar tax cheats. However, nearly six years since those changes were enacted, Treasury has yet to issue much needed regulations and IRS has paid less than a half dozen awards under the new program.

I have sent several letters to Secretary Geithner and Commissioner Shulman to get to the bottom of this. Our staffs have been meeting, including most recently on June 26, 2012. I understand that Secretary Geithner and Commissioner Shulman intend to provide written responses to my questions. Until I receive those responses, I will object to proceeding with the nominations of Mr. Rutherford and Dr. Mazur.