Floor Statements

Mr. President, it seems the President of the United States has finally acknowledged that the economy is in a terrible state and there is nothing he can do about it. So, rather than offer new ideas to grow the economy, the President has now shifted into blame mode. I recognize that the slow economic growth and high levels of unemployment are having a significant impact on the middle class. But rather than listen to political rhetoric and witness finger pointing by President Obama, the unemployed would likely prefer ideas, ideas on how to turn this economy around.

I presume President Obama aspired to lead the country because he believed he had the vision and the ability to lead to a more prosperous nation. But beyond the vision, a President also needs a plan and the leadership to put that vision into place. Where is that leadership? During the past 3 years, we witnessed President Obama's theory on economic stimulus. We saw a massive expansion of government and deficit spending. More than $800 billion was spent on a failed economic stimulus bill that was supposed to keep unemployment below 8 percent. But it did not. Government spending in the process has reached an unprecedented level. Today, the size of government, if you combine local, State, and Federal, is 40 percent of our gross national product. One hundred years ago when Teddy Roosevelt delivered his speech in Kansas, it was 8 percent. I refer to Teddy Roosevelt and the speech in Kansas because the President of the United States now tried to duplicate that speech 100 years later.

Today, government consumes 40 percent of the entire economy. According to economic policies of President Obama, government needs to grow even bigger to help our economy, and in the process there is a goal to use government to redistribute wealth. If government gets a little bit bigger, the argument goes, and if it gets a little more involved, and particularly if it gets involved in every facet of our economy and our lives, that will surely increase economic prosperity of all Americans. Right?

Of course not. All of this has led to taxes and deficit spending that crowd out private investment that could grow the economy and, in the process, create jobs. Government doesn't create self-sustaining jobs; government only creates government jobs. The private sector creates jobs. It is the responsibility of the government to create an environment that leads to job growth. It does this by instituting the rule of law, property rights, the patent system, among others--and there are a lot of others I ought to add to it. Government sets the tone.

Remember, government consumes well, it does not create well. Through economic freedom, entrepreneurs are free to innovate and prosper. This economic success leads to higher standards of living and a better quality of

life. Importantly, these gains do not come then at the expense of others. Contrary to what some would have you believe, business growth does not have to come at the cost of others. In other words, it is not a zero sum game. In fact, business success and economic growth lifts all boats through employment gains, higher wages, and value to consumers, among a lot of other things that could be mentioned.

There are some who believe that individual success cannot be achieved without government involvement or intervention. What is more, they believe an individual's success must mean that someone else has been deprived or they believe if someone else is successful, the success was achieved collectively only with the help of government or others in society. This line of thinking concludes that government and society is, therefore, entitled to some of those achievements.

President Obama's recent speech in Kansas provides great insight into his economic theory. He clearly believes government should be involved at every level of individual and business activity. The President says that hard-working Americans should be rewarded for their achievements. However, his economic vision demonstrates his belief that individual success is due to society, not because of hard work or individual effort. This line of thinking is in stark contradiction to our country's founding principles that government exists to allow for the individual to achieve success and the pursuit of happiness.

The idea of government intervention runs contrary to our founding principles of individual and economic freedom. Government exists to serve the needs of people rather than people serving the needs of their government. There are some who believe government is the only creator of economic prosperity, but if others have achieved success, they must be, by default, the cause of other people's hardships. This type of class warfare demagoguery is harmful to our country and our country's future and our people's future, and it has the end result of dividing America. It creates envy, hatred, and resentment toward those who have worked hard, played by the rules, and achieved success. This divisive rhetoric seeks to put blame on the successful for the hardships of those who have been hurt during this recession.

Most Americans don't support President Obama's divisive vision and rhetoric. The American people still believe if you work hard and play by the rules, you can be successful and you can flourish. I doubt the majority of Americans believe it is the goal of government to intervene in this process. In fact, most Americans would be happy to have the government get out of the way. Most Americans believe in individual responsibility and liberty, including freedom to succeed and freedom to fail.

It appears President Obama's commitment to these fundamental freedoms is less sure. Based on his recent speech in Kansas, it seems the Federal Government is the answer to all of America's problems. According to the President, if we tax the wealthy, ensure they pay their fair share, we can get our economy back on the right track. President Obama wants the American people to believe higher taxes on job creators will lead to economic prosperity and create jobs. This is contrary to what Republicans know to be true. It is also contrary to the vision President John F. Kennedy knew to be true when in the 1963 tax bill he reduced the marginal tax rates very dramatically. President John F. Kennedy recognized the economic benefits of lowering taxes, so in his State of the Union Address on January 14, 1963, President Kennedy spoke of the need to increase economic growth and job creation. He stated:

To achieve these greater gains, one step, above all, is

essential--the enactment this year of a substantial reduction

and revision in the Federal income taxes . . . A net

reduction in tax liabilities . . . will increase the

purchasing power of American families and business enterprise

in every tax bracket.

He further stated:

It will, in addition, encourage the addition and risk-

taking on which our free enterprise system depends--induce

more investment, production, and capacity use . . . and

reinforce the American principle of additional reward for

additional effort.

It is worth repeating. President Kennedy pushed for lowering Federal income taxes to encourage initiative and risk-taking to induce investment, production, and economic growth. President Kennedy recognized and believed in the American principle of additional reward for additional effort.

It seems to me, from the speeches that have been made recently, that our President--meaning President Obama--disagrees. It seems to me that he argues innovators and job creators should be subjected to punitive tax increases for being successful. He seems to believe economic growth will come by confiscating the wealth of job creators and sending that money to Washington, and I could not disagree more.

For Americans to prosper, we must first reduce the size of government. This year the Federal Government will spend about 24 percent of our gross domestic product. This type of spending has led to annual deficits above $1 trillion for the past 3 years. The total debt stands at over $15 trillion. This is 100 percent of our gross domestic product. The size of government, the size of deficits, the size of debt, and the size of interest payments are unsustainable over the long haul. We must reverse course.

Second, we must work to reform the Tax Code to provide certainty and predictability. Nearly every day our President is on the campaign trail talking about tax increases. It is no wonder our job creators, particularly small businesses, are reluctant to make business decisions or investments in this climate, which decisions we would hope if they would make them would obviously lead to a great deal of job creation in the private sector. This country doesn't need more taxes, we need more taxpayers, and the way to get more taxpayers is to have more people working.

The President's threat of higher taxes is directly inhibiting job growth and economic expansion. It is time for President Obama to recognize that with 13 million Americans unemployed and anemic economic growth, tax increases will harm, not help, economic recovery.

Finally, we had a recent Gallup poll finding that compliance with government regulations is the single biggest issue facing small business owners today. You might think we would emphasize the Fortune 500 big corporations when it comes to creating jobs, but we know that 70 percent of the new jobs in America are created by small business, so we ought to be concentrating on what small business people are telling us about the economy not turning around.

Small business owners, when it comes from the standpoint of regulations, need to spend less time and money making sure they comply with burdensome and needless Washington regulations. Those valuable resources should be spent growing their business, hiring more workers, and as a result growing our economy. We must halt the Federal Government regulations binge. For many of these new regulations, the cost of compliance outweighs the public benefit. They are acting like a wet blanket on our economy. There should be a moratorium on new regulations.

I want to give you a perfect example that is now an issue before the Congress, the Keystone XL Pipeline. At a time of high unemployment and energy costs, the Federal Government should not be standing in the way of private investment that will create jobs and increase our energy supply. It is unconscionable that the largest private shovel-ready construction project is being delayed by President Obama's decision to override two different studies by the State Department and that there was no negative environmental impact. It seems the only jobs President Obama is interested in creating are government jobs or government- subsidized jobs. The unfounded delay should be ended and the pipeline project should move ahead.

This situation typifies the Obama philosophy that the free market and intelligent Americans are incapable of making informed decisions. The argument we hear is that Americans are not smart enough to know we need solar energy rather than fossil fuels. So our big government caretaker uses \1/2\ billion in taxpayer dollars to support a solar company while simultaneously blocking an entirely private enterprise from developing an oil pipeline that will make us much more energy independent. We have seen how the decision by the government elite to support

Solyndra has worked out. It was a complete failure.

It is time we got out of the way of the Keystone Pipeline. I hope the American people will dismiss the economic theories and visions of our President as he seeks to divide our country. I believe we can achieve a prosperous future by empowering individuals rather than our Federal Government. Americans are smart enough to put their trust in themselves and their neighbors, not in bigger government. It is time to end the political blame game and divisive rhetoric and, instead, work on genuine and real policies that will create economic jobs and, more importantly, economic growth that is going to help all Americans; in other words, expanding the economy because this does not have to be a zero sum gain. We can have more for more people, and if we don't have more for more people, we are going to have less for more people and everybody is going to lose out.

Mr. President, in the past 3 weeks I think I have come to the floor three times to discuss the case on the President's health care reform bill: one time to discuss the constitutionality of the individual mandate and another time to deal with the severability clause. I come now to speak about the unconstitutionality of the massive expansion of Medicaid. Those are three of four issues that the Court is going to deal with. My colleagues probably remember the Court has extended the period of time they normally deal with arguments before them from 1 hour to 5\1/2\ hours because this is such a very important case.

Today I wish to talk about the far-reaching implications of this mandate, but also about the constitutionality of the Medicaid expansion. If the Supreme Court rules the individual mandate unconstitutional, it will have the effect of striking down this new law that has not been fully implemented. If the Supreme Court rules that the Medicaid expansion and the Affordable Care Act is unconstitutional, it has the potential to cause significant changes in a program that has been in operation for the last 46 years.

Just to remind everybody about Medicaid, it was created in 1965 at exactly the same time Medicare was created. Where Medicare was created to provide health care coverage for our senior citizens, Medicaid was created as a safety net for low-income individuals. Medicare is run exclusively by the Federal Government. Medicaid is a Federal-State partnership. The Federal Government sets the parameters of the Medicaid Program. It pays at least half of the program in every State but then turns the functional operation of the Medicaid Program over to the States.

In the 46 years since both programs were created, eligibility for the Medicare Program has been essentially unchanged. On the other hand, eligibility for the Medicaid Program has expanded significantly through the years and, with that, the program has grown dramatically as well.

Medicaid, when it was created, covered fewer than 5 million. Today, the Medicaid Program currently covers nearly 57 million. The program spends more than $300 billion each year.

Medicaid has expanded so dramatically for two reasons. First, at various points in the last 46 years Congress has mandated that the States increase eligibility and services for the program. Second, Congress has also given the States the option to expand their eligibility. When Congress gives States the option of expanding their eligibility, States can expand and the Federal Government will still provide its proportionate share of Federal dollars.

For instance, one of the programs I helped get passed with Senator Kennedy from Massachusetts when he was a Member of the Senate was a program that allowed some help for families who had particularly high health care costs for kids--something that was just catastrophically high. That is just one example.

The decision to expand is up to the States. When Congress mandates the States expand eligibility, States can either expand their programs or forfeit all Federal funds for the program.

Now, this is what we call an all-or-nothing requirement. It has been used in every expansion of the program. The all-or-nothing requirement on States has not only been used to expand eligibility within the Medicaid Program, but it has been used to expand services and require changes in the administration of the program.

If the Federal Government wants States to cover podiatrists in Medicaid, the Federal Government can mandate States to do so. If a State doesn't do it? Withhold all Federal dollars to that State. If the Federal Government wants States to implement a secondary payer program to ensure that services are being properly paid by private dollars, the Federal Government can mandate States to do so and withhold every Federal dollar if that State refuses to go along.

It has been a staple of the program for 46 years that the Federal Government can require States to do certain things in Medicaid. Now comes along the Affordable Care Act. That act requires States to expand their Medicaid Program to cover all individuals up to 133 percent of the poverty level. It is the first expansion of Medicaid's mandatory eligibility groups since the all-or-nothing expansion in the bills of 1989 and 1990. Those were both reconciliation acts.

It is this all-or-nothing requirement that States are challenging and that the Supreme Court will consider next year and has given a certain portion of the 5\1/2\ hours just to debate this issue. So I think that means the Supreme Court thinks this is a very significant issue they are being asked to consider.

So I would like to describe the arguments being made by the States that this is an unconstitutional use of congressional power. The States argue that the 10th amendment limits the power of Congress to coerce States to accept Federal funds as opposed to providing inducements. The States argue that a restriction on Federal funds compels rather than induces if its burdens and losses as they affect vital ordinary State functions are too burdensome and costly. So I quote from their position:

By conditioning all of the States Federal Medicaid

funding--for most States, more than a billion dollars each

year--upon agreement to substantially expand their Medicaid

programs, the Affordable Care Act passes the point at which

pressure turns into compulsion and achieves forbidden direct

regulation of the States.

The part of the quote which says it is at the point where pressure turns into compulsion makes the act unconstitutional because it has always been a principle that the Federal Government can put certain conditions on States, but if it reaches a point where the State has to do it, in this case the States say: You have really gone too far.

The Affordable Care Act withholds all Federal dollars, then, from States that refuse to submit to the policy dictates of the Congress. Medicaid accounts for more than 40 percent of all Federal funds that States receive. States spend on average 20 percent of their State budget on Medicaid. Federal funds cover, on average, 57 cents of each dollar spent on the program because previously I said the Federal Government gives every State at least 50 percent, but the average of all 50 States is 57 percent of the Medicaid dollars coming from Federal dollars.

In my State of Iowa, for instance, I think it is 63 percent from the Federal Government and 37 percent of State funds. So the loss of all Federal Medicaid funding would obviously be devastating to the States.

The States maintain that the law's expansion of Medicaid was deliberately designed to force the States to agree to expand the program because of the threat that a State's entire Federal funding stream would be cut off if they decided not to go along with decisions made in Congress. In the harshest terms, they were made an offer they could not refuse. Further quoting from the States' argument:

The Affordable Care Act essentially holds the States

hostage based on their earlier decision to establish a

Medicaid infrastructure and accept federal funds subject to

different conditions.

The Affordable Care Act uses the States' decision to accept

earlier federal inducements against them, and, in doing so,

presents states with no real choice: they must abandon

completely the existing Medicaid system and funding or accept

the radical new conditions. This amounts to a massive bait-

and-switch.

The States are arguing to the Supreme Court that there is no way the States can turn down a Federal inducement as massive as all Medicaid funding.

This is especially true because the effect of declining is that the State's own taxpayers have to pay the full cost of providing health care for the neediest citizens of the State and, at the same time, provide the Federal Government taxes for Medicaid funds that would be distributed to pay for the program, including expansion in the other 49 States.

Since no State could make taxpayers fund the State and Federal portions of Medicaid, while also taxing their citizens to pay for Medicaid in the other 49 States, it is a phony choice, not a real choice, for the States to turn down the money to expand their Medicaid Programs. In other words, the States are being compelled to do so.

The States argue that giving notice of the coercion they face does not make the choice any less coercive, and they argue that when States originally accepted Medicaid, they were not

warned that their participation would put them at the mercy of any future unpredictable congressional demands.

The States are arguing Congress can change Medicaid, and Congress can condition the funding for those changes on State agreement to them.

But it cannot force changes on the States by threatening them with the loss of the entirety of Federal funds.

Although the Federal Government will pay the vast majority of the cost of expansion, the States also point out that coercion turns on the financial inducement that Congress offers, not the amount a State is coerced to spend.

The critical issue is what is referred to as the ``coercion doctrine.'' The coercion doctrine protects the States' decision whether the inducement is worth the cost.

Among the controlling cases is South Dakota v. Dole in 1987. The Supreme Court there upheld a Federal law that threatened States with the loss of 5 percent of Federal highway funds if they did not raise their drinking age to 21.

Remember, that was only 5 percent of their road funds, not 100 percent of their road funds, as in the case of the all-or-nothing in the case of Medicaid, where if you do not go along, you are going to lose everything.

So in that Dole case, writing for the majority, Chief Justice Rehnquist noted:

Our decisions have recognized that, in some circumstances,

the financial inducement offered by Congress might be so

coercive as to pass the point at which ``pressure turns into

compulsion.''

In the years since the Dole decision, Federal courts have yet to establish a clear test for coercion. I assume that is what could happen if they would overturn Congress's decision; that there would be a clearer test of coercion in this Affordable Care Act.

The Supreme Court will be challenged in this affordable care act case to determine where the limits of Federal coercion, if any, lie.

It is difficult to overstate the potential implications of this particular aspect of the affordable care act in the case that is being appealed.

There are three specific ways this decision could have a profound impact on Federal policy if the Supreme Court rules in favor of the States.

A ruling for the States could affect future Medicaid policy, current Medicaid policy, and broader Federal-State partnerships.

The expansion of Medicaid in the Affordable Care Act was written to minimize the cost to the States. The Federal Government pays for 100 percent of the cost of the Medicaid expansion in the first few years, before transitioning to an approximately 92-percent share of the cost of the expansion.

If the Federal Government cannot require expansion of the Medicaid Program and pick up 92 percent of the tab, what can the Federal Government require? Would a mandatory expansion be constitutional if the Federal Government permanently paid for 100 percent of the cost? Could the Federal Government mandate future expansions if they were much smaller in scope, such as in the 1989 and 1990 mandatory expansions under those reconciliation bills?

If the Federal Government wanted to require States to cover podiatrists or implement a secondary payer program, could it do so using Federal funds as leverage to require it?

A ruling in favor of the States would raise those questions.

Further, if the current mandatory expansion of Medicaid is unconstitutional, what does that imply for previous expansions and policies?

In the 1989 and 1990 acts, when Congress required States to expand eligibility for women and children, Congress did so without providing any additional funding to the States beyond their normal share, which in the case of Iowa today would be 63 percent Federal, 37 percent State.

If the Supreme Court rules in favor of the States, will previous mandatory expansions to Medicaid be subject to challenge? Will a State be able to challenge the existing enforcement mechanism of withholding Federal dollars if a State wants to ignore a service requirement or an antifraud provision? These questions will then have to be answered.

Finally, a Supreme Court ruling on a coercion test necessarily has broader implications for all Federal-State partnerships. The original Dole case was about transportation funding.

A Supreme Court ruling in favor of the States will necessarily bring into question every agreement between the Federal Government and the States where the Federal Government conditions 100 percent of the Federal funds on States meeting requirements that are determined in Washington, DC.

It is certainly possible that such a Supreme Court ruling could require future Congresses to carefully consider a coercion test in designing legislation.

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 health care.

One may ask: Does the Supreme Court have this case before it--and why does it have it before it?--a case with such broad and far-reaching implications? It is because of a massive restructuring of our health care system in a partisan fashion, using nearly every procedural tool at the majority party's disposal in accomplishing the goal of passage.

The constitutionality of this law has been challenged in numerous courts throughout the country. These challenges will soon be heard before the Supreme Court. While most people want to focus on the individual mandate, it is important we do not forget the potential consequence of the Medicaid question before the Court.

It could, obviously, strike the expansion in the Affordable Care Act. It could hamstring future Congresses as they consider potential policies for the Medicaid Program in the future. It could threaten the fundamental structure of the Medicaid Program by bringing into question all the requirements on the States in the program today. It could require future Congresses to consider the structure of every Federal- State partnership.

We are here discussing this because the White House and the Democratic majority put their partisan goals ahead of collaboration with Republicans and States to build legitimate public policy--contrary to how most social policy in this country has been devised: Social Security, bipartisan; Medicare, Medicaid, bipartisan; civil rights laws, bipartisan--but not this Affordable Care Act, a partisan document.

Now we see that far more than this one specific policy is threatened. If the Supreme Court accepts the States' argument, a host of constitutional questions will surround the operation of many Federal funding streams to the States. It would be difficult to overstate the significance of such a ruling. I have outlined it was not necessary for the Congress to have taken action that might produce that result.

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

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

Madam President, the need for a balanced budget amendment is very great. You know how the national debt now is reaching a point where, if we don't intervene with a constitutional requirement for a balanced

budget, it is going to become unsustainable. Statutes have not controlled deficit spending.

I was an author of one of those statutes--former Senator Harry F. Byrd of Virginia and I as a Member of the House--back in 1979. For 15 years that law was on the books, and never in those 15 years was there a balanced budget amendment. It makes it very clear that laws will not control deficit spending.

I concluded a long time ago, as I voted on previous constitutional amendments requiring a balanced budget that didn't pass, that a constitutional amendment is a must to provide Congress with the necessary discipline. The example right now in Europe of their fiscal and deficit situation is sobering. Nations that allow debt to grow out of control risk default. One of those countries is practically in default. If we don't take effective corrective action, the European future could be ours and sooner than we think.

Each generation of Americans has enjoyed a brighter future than the previous generation. The failure of Congress to tame the deficit and the debt threatens the American dream for our children and grandchildren. The Constitution was designed to secure the blessings of liberty not only for ourselves but also for our children. This makes balancing the budget not just an economic issue but a moral issue as well, and creates a moral obligation to take action. A constitutional amendment is not only a first step in that direction but it will make sure the discipline is binding in future years.

The balanced budget amendment will enforce a lower debt. Members taking an oath to adhere to its provisions guarantees greater fiscal discipline than what we have without that constitutional provision. They will take that oath seriously, just as is the case for the 46 State constitutions that contain requirements their State legislatures balance their budgets. We always say the State legislatures and States are the political laboratories for our system of government. We ought to take the results of those laboratories and put them to use at the Federal level. I am urging my colleagues to vote for the resolution before us, which is S.J. Res. 10.

There have been complaints this resolution would transfer to the courts the power of the purse, but that is a misreading of S.J. Res. 10. The amendment prohibits the courts from raising taxes. The doctrine of standing, the doctrine of ripeness, and the doctrine of political question will prevent courts from deciding cases under the amendment.

This is a lesson we should have learned. I think it was 1997--nearly 15 years ago--when this body failed by one vote--and I am ashamed to tell you it was one Republican not voting for it--to enact such a constitutional requirement. But it didn't pass. If it had passed, we wouldn't be in the fiscal situation we are in right now. I urge my colleagues to vote for S.J. Res. 10.

I yield the floor.

Reserving the right to object, and I must object, but I wish to make clear that the Senator from California understands I didn't come to the floor to object to her request, but on behalf of the Republican leader I do object.

Mr. President, I ask unanimous consent to speak for what time I might consume, but I wouldn't expect it would be more than 30 minutes.

Mr. President, I have come to the floor to speak about the Fast and Furious investigation. But I would also like to follow up and have this portion of my remarks follow the Senator from California because I think my side has a legitimate position to take on some job creation things that are in the House bill that has come over here; that if people just hear one side of the story, they might misunderstand we are not interested in creating jobs and we are only interested in putting stumbling blocks in the way of regulations or Presidential decisions that are made. But it is directly related to, in the case of rules by EPA that the Senator spoke about, it is a fact that under this administration there is an explosion of regulations. A lot of those regulations, because of their cost, have led to the elimination of a lot of jobs or a lot of jobs not being created as a result thereof.

So if we hear the President of the United States saying we ought to pass legislation that he is for to create jobs or we hear the President of the United States, one or two times a week, flying all over the country at taxpayers' expense to give political speeches and asking to put the pressure on Congress to pass his jobs bill at the very same time his departments are issuing regulations costing jobs or not creating jobs or the President making a decision that we shouldn't build a pipeline from Canada down to Texas so we can import more oil in a cost-effective way from our friend Canada--a reliable friend--instead of spending $830 million every day--every day--to import oil and paying that to countries that either hate us or want to kill us, we think there is an inconsistency between the President who is going around the country giving speeches on why Congress isn't passing his legislation to create jobs, when his administration is making decisions--in the case of the pipeline, 20,000 jobs could be created right now, union- paying jobs, good jobs, and 110,000 jobs on the side related thereto, plus what it does good for the energy policy of the United States to have that built. The President is standing in the way.

He says it needs another year of study. The State Department has already given two studies over a period of years saying it is OK to go ahead. It is not an environmental problem. The Nebraska legislature held it up for a little while because of the aquifer, but they have reached an agreement that it can go through their State in a little different direction.

We think we ought to create those 20,000 jobs and we ought to do it right now and this legislation that has come over from the House does that. This legislation coming over from the House puts some block of some regulations going into effect that is going to eliminate jobs or stop the creation of jobs.

So we are a little bit irritated about the inconsistency between an administration that wants us to pass legislation to create jobs when, at the very same time, one person is making a decision that we are not going to move ahead with job creation projects. This legislation allows to move ahead for that.

Mr. President, the reason I came to the Senate floor is to give my colleagues an update on the Fast and Furious investigation that I have been conducting since last January 31.

For almost 11 months now, I have been investigating Fast and Furious, an operation of the Bureau of Alcohol, Tobacco, and Firearms, ATF. On December 2, the Justice Department finally came clean about who helped draft its February 4 letter to Congress. That was a letter I wrote that they responded to since I opened the investigation on January 31. It only took them a few days to get a letter to me that had a tremendous number of falsehoods in it.

That letter falsely denied ATF whistleblower allegations that ATF walked guns. The revelation in the December 2 documents of this year were the last straw for me. They admitted the February 4 letter had falsehoods in it. I called for Assistant Attorney General Breuer to step down, and I don't do that lightly.

Earlier documents had already shown Mr. Breuer displayed a stunning lack of judgment in failing to respond adequately when told guns had walked in Operation Wide Receiver in the years 2006-07. The December 2 document showed that Mr. Breuer was far more informed during the drafting of the February 4 letter than he admitted before the Judiciary Committee just 1 month earlier. These two issues led me to call for the resignation of Mr. Breuer, the highest ranking official in the Justice Department who knew about gunwalking in Operation Wide Receiver.

The December 2 documents also established a number of other key points. The first is that the Justice Department has a flawed process for responding to letters from Congress that involve whistleblowers. So any of my colleagues, any of the 99 other Senators who are writing letters to the Justice Department, understand they have a flawed process if it involved whistleblowers responding to us. I will show

that to you. In the cover letter that accompanied the documents, the Justice Department wrote that, in drafting their February 4 response, which had these falsehoods in it:

Department personnel . . . relied on information provided

by supervisors from the components in the best position to

know the relevant facts.

They were listening to supervisors because they only listen to supervisors. That is the problem with not answering the letters in a truthful way, to me, 5 days later after I handed them to the Attorney General. I will show that in just a minute.

Clearly, the Justice Department did not rely on those in the best position to know the facts, since the letter was withdrawn on December 2 due to its inaccuracies.

I don't know how they can withdraw a letter that is in the public domain, but they just somehow withdraw the letter.

The whistleblowers were in the best position to know the facts. Frontline personnel--not supervisors--were in the best position to know the facts, not these senior bureaucrats or political appointees. Yet the Department failed to provide a credible process for whistleblowers, people who know what is happening on a day-to-day basis, and other frontline personnel to provide information without fear of retaliation.

Employees simply do not believe they are free to report misconduct because they see what happens to those who speak out. They know it is a career killer because the ATF and the Justice Department culture protects those who retaliate against whistleblowers. Yet whistleblowers in this case spoke out anyway.

In other words, these whistleblowers were speaking out, taking a chance on their professional future in Federal Government because they knew something wasn't right about the walking of guns. So they risked their career to make sure the truth was known.

The only crime committed by whistleblowers, generally, is the crime of committing truth. But when the Office of Legislative Affairs sought information to respond to my inquiries, it didn't ask these brave whistleblowers what happened. Instead, it simply relied on self-serving denials of senior officials at ATF headquarters or the criminal division here in DC or the U.S. attorneys in Arizona.

In other words, the Department took the word of the very officials the whistleblowers alleged had mismanaged the situation in the very first place, without getting both sides of the story.

The U.S. attorney has since admitted in testimony to congressional investigators he was too strident when he first heard these accusations. He claimed he didn't know all the facts.

We can't rely on the chain of command when we have a whistleblower. By definition, whistleblowers emerge because the chain of command is broken. Whistleblowers come to Congress because they are unsuccessful in getting their supervisors to address fraud, waste, and abuse. Sometimes those supervisors attempt to cover tracks and paper over the problem. That is why we have to get the story straight from the horse's mouth. We can't let the facts be filtered through multiple layers of bureaucracy. After all, the bureaucracy is filled with the same supervisors who should have done something about the problem in the very first place before whistleblowers even come forward.

These problems are particularly prevalent in the Federal Government that is so very large it is virtually impossible for anyone to ever be held accountable for anything. So it is crucial those investigating whistleblower allegations go straight to those on the ground level with firsthand knowledge of the facts. Their goal should be to understand the underlying facts of the whistleblower allegations, not to intimidate whistleblowers into silence. Instead, inquiries all too often focus on the whistleblowers themselves and what skeletons they have in their closet. That approach is exactly what is wrong with the Federal Government and why it doesn't function as efficiently as it can. Because if more whistleblowers were listened to and wrongs were brought to the surface and transparency ruled, there would be more accountability.

The focus should be on whether the accusations are true so the problems can be corrected. Too often, however, the focus is on finding out what information the whistleblower disclosed so the agency can circle the wagons and build a defense. That needs to change. If the department is going to regain its credibility, it needs to provide straight answers, not talking points and spin.

The only way to provide straight answers is to make sure we get straight answers in the first place. That is one reason we have pushed in our investigation to be able to interview frontline personnel.

The Justice Department objected in a letter Tuesday night. In that letter, the Justice Department also objected to us talking to first- or second-level supervisors. This is exactly the sort of approach that prevents key information from getting to senior officials and to Congress and impedes Congress's constitutional responsibilities to see that the laws are faithfully executed. In other words, we don't just pass laws and say that is the end of it. We have to pass laws to make sure we are a check on the executive branch of government and that means to do the constitutional job of oversight. That means ask questions. That means we are entitled to answers--unless somebody is trying to cover up something. When they are trying to cover up something in the bureaucracy, I always tell them: If you get stonewalled, eventually the truth is going to come out. The more truth that comes out, the more egg you are going to have on your face. Mr. Breuer is one of those who has tremendous egg on his face.

Justice cites the so-called line personnel policy for refusing to provide officials for voluntary interviews. The policy is based purely on nothing but the Department's own preferences. This isn't any law or statute or even case law. The Department has frequently set aside the policy and made exceptions.

For example, line attorneys gave transcribed interviews under oath to Congress in the 1992 Rocky Flats Nuclear Weapons Facility investigation. As recently as October, assistant U.S. attorney Rachel Lieber, the line attorney responsible for the anthrax investigations, participated in an interview with PBS's ``Frontline.''

How can the Justice Department tell me or argue to Congress that Congress should not be allowed access to line attorneys when they give that same kind of access to the press? Those are the kinds of line personnel and individuals who have the actual answers. I kind of surmise that the reason the Justice Department will let a U.S. attorney or some FBI agents be interviewed on television is that some public affairs officer has looked at it and said: This is a good story. This is going to make us look good. But when Congress wants to interview line people, no, and we have a constitutional responsibility to do that.

I would like to suggest that the Justice Department let the public affairs people make a decision of who can talk to Congress because it might make them look a little better if they will let them talk to Congress or are they afraid we might find out something? It is irritating as heck.

In this case, had the Justice Department gone to the horse's mouth before sending an inaccurate letter to me on February 4, they would have been able to get the story straight. The memo I have here I am not going to read, but I want to hold it up.

The memo is from an ATF line agent who substantiated the claims of the first ATF whistleblowers.

I ask unanimous consent a copy be printed in the Record immediately after my remarks.

It is dated February 3, 2011, the day before the Justice Department sent their letter to me. The memo was passed up his chain in response to investigators on my staff talking to him about Operation Fast and Furious. He accurately described the problems with Fast and Furious. What he said was consistent with the claims I had already heard from other whistleblowers. Information such as this is why I was skeptical days later when the Department sent its February 4 letter to me, denying the allegations. In other words, I had proof they were lying to us.

The agent wrote in the memo about being ordered by a Fast and Furious

case agent to hold back in their surveillance, so that they did not ``burn the operation.''

While watching straw purchasers hand off weapons to traffickers-- violating the laws of this country but encouraged to do it by their own Justice Department--the case agent ``told all the agents to leave the immediate area.''

While a crime was being committed the agent said to the agents to leave the area immediately. The memo explicitly says:

The transaction between the suspects took place and the

vehicle that took possession of the firearms eventually left

the area without agents following it.

A crime is committed, U.S. agents there let them move on.

After the phone call to my staff, the ATF agent's supervisor requested that he write this memo documenting what he had told my investigators. This passed up the chain all the way to the ATF leadership. We know that because there are e-mails attaching the memo sent to senior headquarter officials. However, the Justice Department has refused to provide copies of those e-mails and will only allow them to be reviewed at Justice Department headquarters.

The Department has also refused to provide a copy of this memo. My staff had to obtain it from confidential sources.

One of the questions yet to be answered is who in the Justice Department saw the memo and when. Either way, once the Justice Department got hold of it they tried to keep it under wraps by refusing to give me a copy. They made my staff go to the Justice Department to view it, even though the entire memo simply recounts information that was already provided to my staff. It is embarrassing to the Department because it shows that the truth was easily knowable before the false denial was sent to Congress on February 4. If they had asked for firsthand documentation such as this memo when they first got my letter in January, we would not be where we are today.

The second point these documents establish is that main Justice had problems of its own. It was not all the fault of the ATF or the U.S. attorney. Mr. Breuer's deputy, Deputy Attorney General Jason Weinstein, participated in drafting a false statement. The Justice Department's February 4 letter read:

ATF makes every effort to interdict weapons that have been

purchased illegally and prevent their transportation to

Mexico.

Documents show that line originated in a phone conversation, February 1, 2011, between Justice Department legislative affairs assistant director Billy Hoover from ATF and Jason Weinstein from main Justice's criminal division.

Like Assistant Attorney General Breuer, Mr. Weinstein knew that ATF had let hundreds of weapons walk in Operation Wide Receiver, which was an earlier, smaller scale case than Fast and Furious. In fact, in April 2010, he brought that fact to the attention of Mr. Breuer, his boss. April 2010 is 8 months before I got involved in this investigation. His e-mail to Mr. Breuer about Wide Receiver said:

As you'll recall from Jim's briefing, ATF let a bunch of

guns walk in efforts to get upstream conspirators but only

got straws, and didn't recover many guns. Some were recovered

in [Mexico] after being used in crimes.

It is ironic that is how Mr. Weinstein described Wide Receiver. He was one of the officials who authorized wiretaps in Fast and Furious. Therefore, he was in a position to know that exact same description applied to Fast and Furious. Yet he allowed the myth to be perpetrated that ATF would never do such a thing. Mr. Weinstein saw the Justice Department's very first draft of the letter to Congress. In fact, as one of his Justice Department colleagues in the Deputy Attorney General's office said, ``CRM,'' which happens to be the criminal division, and OLA, which is the Office of Legislative Affairs--``CRM and OLA basically drafted it.''

Mr. Weinstein knew the letter contained a blatantly false line. Yet he did nothing to correct it and that line thus remained in every successive draft of the letter.

On December 2 this year, the Justice Department's latest spin was that its statement that ``ATF makes every effort to interdict weapons'' was ``aspirational.'' Nevertheless, that did not stop them from withdrawing the letter for inaccuracies. Perhaps the ``aspirational'' language should be saved for mission statements. Responses to specific and serious allegations ought to, in a commonsense way, stick to the facts, right? This was an oversight letter. I was not asking for some ``feel good'' fuzzy message about what ATF aspired to. I was asking for simple facts.

A U.S. Border Patrol agent had died, and at the scene of his death were two guns from Fast and Furious. So his death was connected to the ATF operation. Whistleblowers were reaching outside of the chain of command because supervisors would not listen. Instead of treating these allegations with the kind of seriousness they deserved, the Justice Department resorted to damage control.

I do not know what else my investigation is going to uncover, but we are going to pursue it until we get to the end of it because my goal is to find out who at the highest level of government, in Justice or the White House, approved this, and get them fired; make sure that the Terry family gets all of the information about the death of their son-- to this point they have had hardly anything--and, No. 3, to make sure a stupid program like walking guns, Fast and Furious, et cetera, never happens again.

This week the investigation revealed that shortly after the February 4 letter, Lanny Breuer asked Mr. Weinstein to write up an analytical memo of Fast and Furious. This suggests that Mr. Breuer and his deputy Mr. Weinstein were down in the weeds on Operation Fast and Furious a lot earlier than previously admitted. Mr. Weinstein was in an excellent position to write such a memo, since Mr. Breuer has acknowledged that Mr. Weinstein was one of the individuals who approved wiretaps in the summer of 2010 as part of Operation Fast and Furious. However, we had to learn of this memo from sources not from the Justice Department but from outside of the Justice Department. The Justice Department has not provided it to us, even though it is clearly responsive to a House Oversight Government Reform Committee October 25 subpoena.

This type of maneuvering is what got the Justice Department in trouble to begin with. The Justice Department should produce this document immediately, along with all the other responsive documents.

This investigation will continue. People must be held accountable. The Justice Department must stop stonewalling today.

Exhibit 1

U.S. Department of Justice, Bureau of Alcohol, Tobacco,

Firearms and Explosives,

Washington, DC, February 3, 2011.

Memorandum To: Special Agent in Charge, Dallas Field Division

Thru: Resident Agent in Charge, Lubbock Field Office

From: Gary M. Styers, Special Agent, Lubbock Field Office

Subject: Contact with Congressional Investigators

On February 2, 2011, at approximately 1500 hours, ATF

Special Agent Gary Styers was contacted telephonically by

Robert Donovan and Brian Downey, representing United States

Senator Chuck Grassley and the Senate Judiciary Committee.

Downey and Donovan after identifying themselves asked Special

Agent Styers if he would be willing to answer some questions

regarding the time Special Agent Styers spent on a detail to

the Phoenix Field Division, Phoenix Group VII Office. Special

Agent Styers said he would be willing to answer questions to

the best of his knowledge.

Special Agent Styers was asked if he was familiar with the

large firearms trafficking case in Phoenix Group VII and

Special Agent Styers said he was. Downey and Donovan asked if

Special Agent Styers knew the name of the case and he

responded that it was ``Fast and Furious.'' Downey and

Donovan then asked if Special Agent Styers knew who the case

agent was and Special Agent Styers said it was Special Agent

Hope McAllister. Special Agent Styers was also asked who the

supervisor of the group was and Special Agent Styers said it

was Group Supervisor David Voth. Downey and Donovan also

asked who helped Special Agent McAllister, Special Agent

Styers said that Special Agent McAllister had a Co-Case Agent

from Immigration and Customs Enforcement (ICE) as well as an

agent from Group VII. Downey and Donovan asked who was the

Agent from ICE and Special Agent Styers told them it was Lane

France.

Downey and Donovan asked Special Agent Styers if he knew

what the agents were assigned to do on the investigation.

Special Agent Styers explained that a group of agents were

assigned to the case and that since the case was in the stage

of an active

wiretap, some agents were working within the group and

Special Agent Styers was then asked about his general

impression of the Fast and Furious case. Special Agent Styers

stated that the case had systematically divided and isolated

agents from the group. The case agent had solicited the

advice of numerous experienced agents, including Special

Agent Styers, regarding how to conduct and end the wiretap

operations and case overall. Special Agent Styers gave the

case agent his honest opinion and advice since Special Agent

Styers had worked two wiretap investigations in his career.

Special Agent Styers felt that his advice and opinions, as

well as other agents' advice and opinions were widely

disregarded. Along with other agents within the group,

Special Agent Styers explained that he was no longer asked to

assist with Fast and Furious and concentrated on his assigned

cases and provided necessary assistance to fellow agents

within the detail and group.

Downey and Donovan asked Special Agent Styers what he felt

was incorrect about the way the Fast and Furious case was

conducted. Special Agent Styers explained that first and

foremost, it is unheard of to have an active wiretap

investigation without full time dedicated surveillance units

on the ground. Special Agent Styers relayed that no agents in

the group were assigned to surveillance on the Fast and

Furious case. Special Agent Styers said that other agencies

or task force officers may have been used to conduct

surveillance and respond to calls of FFLs, but it seemed that

either the case agent or Group Supervisor would poll the

office for agents who were available to respond at short

notice.

Secondly, Special Agent Styers said that it appeared odd to

have a majority of ATF Agents working on a wiretap

investigation, who had never worked such a case. Especially,

when numerous, permanent Group VII agents and detailers had

previous wiretap experience.

Special Agent Styers was provided with contact information

for Downey and Donovan and the conversation was ended.

Special Agent Styers contacted the Lubbock Resident Agent in

Charge, Jim Luera at 1545 hours after the conversation with

Downey and Donovan ended, to inform him of the contact.

Special Agent Styers was later asked to document the

conversation herein and attempted to do so to the fullest

extent possible.

Respectfully,

Gary M. Styers.

Mr. President, I do not see another Member on the floor. Unless some staff person among the Republicans or Democrats tells me somebody is coming, I wish to take another 5 minutes, if I could.

Mr. President, more like 7 or 8 minutes.

Mr. President, the cornerstone of Congress's ability to effectively oversee the Federal Government is the free and open access to information--in other words, congressional oversight, what I was talking about in regard to Fast and Furious.

On another investigation 231 days ago, on April 27, I made a very simple request. I requested that the Federal Communications Commission turn over communications regarding its controversial approval of the LightSquared project. LightSquared is a company owned by a hedge fund called Harbinger Capital Partners that is seeking FCC approval to use its satellite spectrum to build a terrestrial wireless network. To accomplish its goals, LightSquared has already spent millions of dollars on lobbyists and made large political donations.

The problem is that LightSquared's signals would, according to Federal Government tests, cause massive interference with the global positioning system, more commonly referred to as GPS. GPS, as you know, is a critical tool for anything from military drones and missiles to car and ship navigation. LightSquared's initial plan, which the FCC conditionally approved, would have interfered with just about every single GPS user.

The surprising fact is that there is no evidence the FCC even tested LightSquared's plan before approving it. In fact, the FCC granted this waiver--which is estimated to be worth at least $10 billion to LightSquared--in a shortened comment period starting right around Thanksgiving, 2010. Giving a company a possible $10 billion windfall in a holiday-shortened comment period without doing any testing is very suspicious. Risking our Nation's GPS assets, including the role they play in defending our Nation to accomplish this goal, is downright dangerous.

The question I am asking is, Why would the FCC do this? Of course, to get to the bottom of this question I asked the Federal Communications Commission for some documents--again, a simple question, a request for some information. The FCC, an agency with employees who are supposed to work for the American people, said no to my request. My staff was told the FCC intentionally ignored my document request. The FCC officials said they have determined that they will only be responsive to two Members of Congress: the Chairs of the House and Senate Commerce Committees, not even to ranking members of those same committees, and, of course, not to members of those committees whether you are majority or minority. Presumably, they would not even answer to the majority leader of the Senate or to the Speaker of the House, but for sure they surely are not answering to this senior Senator from Iowa. If you happen to be one of the 99.6 of the Congress who doesn't chair one of those two committees, from the FCC's point of view, sorry, you are out of luck. No documents for you. This attitude is unacceptable. I conveyed my concerns to the FCC on July 5 and asked again for documents. Again, I was stonewalled. This time the FCC claimed that since I cannot subpoena the FCC, it would not respond.

President Obama committed to run the most transparent administration in history. Yet the FCC is saying if you cannot force us to be open, we won't do it. I wrote another letter asking the FCC for documents on September 8, and again I was stonewalled.

This brings us to where we are today, 230-some days later. The FCC's decision to impede Congress's constitutional duty of oversight has forced me to make a difficult decision. I do not take that decision to hold up nominees lightly, but I never do it in secret. I always put a statement in the Record, and this is in addition to that statement. But when an agency flagrantly disregards congressional oversight, something must be done.

Before I publicly announced my intention to hold the nominees, I, through staff, contacted the FCC officials. I informed them that if the documents were not forthcoming, I would hold up the Federal Communication Commission's nominees whom the President sent up here. I was surprised and disappointed by their response. Despite knowing my intentions, they chose not to provide any documents. As a result, I am honoring my promise to hold those nominees.

It is unfortunate the FCC has chosen this path. Due to the FCC's decision to hide its actions from the public and Congress, these nominations are now stalled in the Senate. The question I would ask today of my colleagues and the President of the Senate is: Why? The FCC has already told me it would likely provide these documents if certain members--chairmen of committees--asked for them, but somehow 99.6 percent of the Congress has no right to this information. In other words, 99.6 percent of the Members of Congress cannot do their constitutional job of oversight of the Federal Communications Commission. To paraphrase a very popular slogan these days, I guess that makes me part of the 99.6 percent.

My concern is not just specific to this document request. It is broader than that. In the future, any Member of Congress may request documents from the FCC. As the courts have put it, every Member has a voice and a vote in the process under the Constitution. Each one of us has the authority to request and receive information from the executive branch in order to inform those votes. That is what our court has said. That authority is inherent in each Member's responsibility to participate in the legislative process.

The creation of the committee system and the delegation of certain responsibilities to committee chairmen doesn't change that at all. Individual Members still have a right, as well as a responsibility, to inform themselves by requesting information directly from agencies. For Congress to have a complete view of how an agency works, we need to have access to documents. Turning off that flow of information shortcircuits transparency and hurts accountability.

In this case, the Federal Communication Commission's actions have real-

world effects. The FCC's decision to grant a waiver to LightSquared created uncertainty for GPS users, and that includes our own National Defense Agency, the Department of Defense, and other Federal agencies. Another one is the Federal Aviation Administration which claims that 800 people would die as a result of LightSquared's initially proposed network. To the FAA, the FCC's decision could have killed people.

The Department of Defense wrote a letter to the FCC saying that it was not consulted by the FCC. Press reports say that General Shelton-- who heads up GPS for the Armed Forces--said that LightSquared's interference would harm the military's use of GPS. To the Department of Defense, the Federal Communication Commission's actions would have harmed national security.

These are only two agencies, but the Department of Transportation, NASA, and NOAA, among others, have already raised concerns about LightSquared's plan. The effects of the FCC's decision are not just limited to the Federal Government; they also affect ordinary Americans. Here are two examples: For Americans who hope that NextGen air traffic control will reduce air traffic delays, the FCC's action would have continued to increase air traffic wasting time, fuel, and ultimately money for the flying public. For Americans who use precision agriculture to save time and money, the FCC's actions would harm the accuracy and reliability of their equipment. This again leads to wasted energy, lower crop yields, and higher prices for products such as wheat and corn. At the end of the day, the FCC's actions would cost the American consumers money.

Does the FCC even care? I don't know. But the agency certainly has not provided any evidence that it took any of this information into consideration. What we see today is an agency that is completely unaccountable and unanswerable to 99.6 percent of the Congress and, by extension, the American public. This is simply wrong, and I will continue to hold the FCC's nominees until this attitude changes.

I yield the floor.

Mr. President, I have the good fortune of serving with Senator Leahy on the Senate Judiciary Committee. He is the chairman; I am the ranking Republican. In that capacity, we have jurisdiction over constitutional amendments. So I rise to support S.J. Res. 10, which is cosponsored by all 47 Republicans.

I am very pleased we are taking up a balanced budget amendment. The Senate has passed a balanced budget amendment in the past. More recently, it has come close to passing a balanced budget amendment.

I regret that this amendment has not become law. I believe that had the Constitution been amended to require a balanced budget, we would not be faced with the dire budgetary situation that is before us--a $1.5 trillion deficit for each of the last 2 or 3 years, and maybe as far as we can see into the future if we don't get things under control.

The balanced budget amendment before us is very straightforward. It provides that total outlays shall not exceed total receipts unless each House of Congress, by a two-thirds vote, agrees to do otherwise. It provides spending discipline. Total outlays cannot exceed 18 percent of gross domestic product unless two-thirds of both Houses of Congress vote to waive the cap. The President will be required to submit a balanced budget to the Congress.

To avoid balancing the budget by imposing tax burdens, new taxes or increases in total revenue can be imposed only by a two-thirds vote of both Houses, and the debt limit will be able to be raised only with concurrence of three-fifths of both Houses.

To provide a level of flexibility in wartime--and that would call for considerable flexibility because wars are

never predictable--the provisions on outlays and receipts, total outlays, and the debt limit can be overcome by less than the normal two-thirds vote by a three-fifths vote.

To minimize disruption, the amendment will not take place for 5 years.

Finally, the courts cannot enforce the balanced budget amendment by ordering a tax increase.

Reverence for the Constitution is a sentiment we all share. But the Constitution provides for an amendment process. When it is necessary, each generation has amended the Constitution when a guarantee of free speech or the abolition of slavery or giving women the right to vote required a constitutional amendment. No one has said reverence for the Constitution was the end of the matter.

We have reached that point of necessity with the balanced budget amendment. The Congressional Research Service reports--and I wish to quote a fairly long quote:

The budget deficit each year from 2009 to 2011 has been the

highest ever in dollar terms, and significantly higher as a

share of GDP than at any time since World War II. Under

current policies, the Federal debt is projected to grow more

quickly than the GDP, leading observers to term it

unsustainable.

That is the end of the quote from the CRS.

The very purpose of the Constitution, according to its preamble--and I know the preamble is not governing on anything we do or what the Supreme Court does, but it shows intention--the preamble was meant to extend the blessings of liberty to ourselves and our posterity--and I want to emphasize that word ``posterity.'' It is because the growth in the national debt is unsustainable, as I read from the Congressional Research Service, that our posterity may not receive the blessings that several generations of Americans so far have received. It is hard to imagine an amendment more in keeping with the goals of the Constitution than this one. Otherwise, runaway debt will expand exponentially. A permanent spiral can be created in which the debt feeds on itself. We are kind of in that spiral right now. Is it permanent? I sure hope not.

Take a look at Europe today, where we ought to learn lessons about the lack of fiscal soundness. Nations there risk default when they overspend, and they are in that position of almost default now. If we are not careful, our country, the United States, at some point will face the same crisis. It is frightening to contemplate, and particularly frightening as a threat to the blessings we ought to give to generations after us.

We hear from opponents that Congress can balance the budget now without a balanced budget amendment, but the fact is it cannot. For more than 40 years, Congress has been unable to summon the ability to balance the budget. Statutes that sought to provide a path to a balanced budget failed.

Let me speak here about a personal involvement I had when I was a Member of the other body, working with Senator Harry Flood Byrd of Virginia. The Byrd-Grassley amendment was adopted in either 1979 or 1980. It was a statute that was just a few words. It said Congress can't spend any more money than it takes in.

Do you know what happened? For several years after that until it was finally repealed in the early 1990s, Congress delayed it for a year at a time as part of the appropriations process. So statutes are not a good way of making this happen. Gramm-Rudman was probably a little more successful, at least once or twice, but it soon was repealed. By putting something in the Constitution requiring a balanced budget, it is going to discipline Congress in a way that statutes cannot provide discipline; in other words, a constitutional amendment will succeed where statutes have been proven to have failed based upon the examples I gave and other examples that can be given.

The only exception was when we had 3 years going into this century when a financial bubble provided windfall revenues. We all know about that. I believe it is $568 billion we paid down on the national debt for 4 fiscal years after a Republican Congress was elected in 1994.

Anyway, except for that, we have not been able to have very sound fiscal policy. Then because Congress has been unable to control spending, the budgets have been in deficit and the national debt has increased. The only way Congress will exercise the discipline to balance the budget is if the Constitution forces it to do so.

We can say this from some experience, particularly if you believe the States are the laboratories of our political process and of government policy, because 46 State constitutions require their budgets to be in balance. They meet that requirement. As Members of Congress, we do take an oath to adhere to and defend the Constitution. We take that oath seriously. If the balanced budget amendment became part of the Constitution, we would adhere to it or face the consequences from the voters.

This amendment wisely contains effective tax limitations as an integral part. I have favored a balanced budget with tax limitations for more than 20 years. For decades, Federal spending has far outpaced even the steady and sizable growth in taxes and revenues. Raising taxes does not produce surpluses. The historical fact is they spur more spending. For every additional dollar in taxes Congress has raised since World War II, it seems as though it has given us a license to spend about $1.13 for every $1 that has come in for additional taxes.

Don't take my word for that. A person who studied that for a long period of time, Professor Vedder, of Ohio University, has written about that. You will find his figures just about the same. I think he said on average since World War II, $1 coming into the Treasury was a license to spend $1.17 instead of the $1.13 I give here.

Raising taxes, then, would make balancing the budget harder, not easier. Bring a dollar in here, spend $1.13. You hardly get ahead. It seems we cannot ever reach an agreement of how high taxes have to be in this body to satisfy the appetite of Congress to spend money. That is not just a Democratic problem, that is a problem on both sides of the aisle here in Congress.

That brings us to this issue about a supermajority requirement for tax increases. A balanced budget amendment may well encourage tax increases, fueling greater spending and the continuation of additional debt and costs in servicing that debt. The failure to balance the budget is a fiscal issue of greatest importance.

But getting back to our obligations to posterity under our Constitution, it is also a moral issue. Maybe the moral aspects of it are more important than the economic aspects of it. Without a balanced budget amendment, our children and grandchildren will pay for this generation's chronic inability to live within its means. We live high on the hog and worry about our children and grandchildren paying for it.

In the absence of an amendment, the standard of living of future generations will likely decline. The fears of many Americans that the next generation will not live as well as this one are in many respects traceable to decades of fiscal irresponsibility on the part of Congress. This balanced budget amendment would mean a stronger economy. It would surely mean good government, as fiscal responsibility ought to be a part of good government. Obviously people are concerned now about the problem of jobs. Employers are particularly concerned that Congress does not have a sound fiscal policy. That leads them not to hire anybody. A balanced budget is going to mean more jobs.

I believe the American people are willing to do their part to prevent future generations from being saddled with an unconscionable level of debt. They are willing to do so even if it means that some Federal spending they support would be affected. This is especially true if our budgeting is done fairly.

I believe if one listens closely to the arguments of the opponents of this measure, one will hear more arguments against a balanced budget than against a balanced budget amendment. There will need to be difficult actions taken. It is those difficulties that have prevented Congress from balancing the budget. Those difficulties are, therefore, reasons for a constitutional amendment, not reasons against a constitutional amendment. But balancing the budget is necessary and it will take an amendment to the Constitution of the United States of America to make sure it is done consistently.

We also hear arguments about the need to run deficits when the economy is in a recession. That kind of brings us to where we are right now. We have been in a recession for 3 years. The amendment before us permits Congress to vote to run a deficit in that situation, but be skeptical of that argument. If deficits and debt gave us a strong economy, right now we would be in the midst of the greatest economic boom in our history. Obviously we are not in that economic boom. Deficits of $1 trillion-plus and a national debt of $15 trillion are not stabilizing the economy in the way that people who argue that maybe in a time of recession you ought to have a lot of deficit spending have claimed.

In fact, I believe the size of the deficit and debt is one reason the economy is not performing well. The size of looming deficits and debt is another. The markets are not viewing the debt as stabilizing a weak economy. Rather, they view it correctly as a drag on the economy. That is why jobs are not being created. That is why corporations have $1 trillion in their treasuries in the United States, $1 trillion in their treasuries overseas, $2 trillion that is not being spent, that is not making corporations any money. It is lying there. They want to invest it in jobs and machinery and get the economy going and make more money.

On the issue of enforcement, the opponents attack straw men. They say either that the amendment cannot be enforced, so it is toothless, or they say the courts will enforce it, leading to chaos. Both of these arguments cannot be true. This amendment will be enforced by the President submitting a balanced budget and Congress complying with the amendment, as do State legislators all over the country. Members take an oath and voters will punish those who do not obey the constitutional command.

With respect to the courts, the text of the amendment prohibits courts from raising taxes. Of course, judicial standing requirements, ripeness, and the doctrine of political questions will mean that the courts will continue to lack the power of the purse, as has been the case throughout 225 years of history of our country.

In the past dozen years, Congress has been unable to balance the budget even when times are good. Had we passed a balanced budget amendment when it was before us in the past, we would not have racked up the huge deficits that now confront us.

We have heard in the past that a balanced budget amendment was not necessary because Congress could balance the budget on its own. We know how successful Congress has been doing that. Those arguments were wrong. Today we face one of the worst debt pictures in our history. If nothing is done, the future will be even worse. We owe a responsibility to the American people and to future generations to maintain the fiscal discipline that has allowed us to be the world's biggest economy.

Our pleas for a balanced budget amendment have been denied by its opponents in the past. We warned at that time what road lay ahead if we failed to pass a balanced budget amendment. Time has unfortunately proved us right. It is not too late if we act now, but time is growing shorter each year.

I urge my colleagues to do the right thing and enact a constitutional requirement that the budget be balanced.

I yield the floor.

I am willing to do that, but I thought I maintained the right to the floor by--

Mr. President, in a few minutes, the Supreme Court will be addressing four issues in connection with the constitutionality of the Obama health care law. Previously, I spoke about the unconstitutionality of the individual mandate. Today, I wish to discuss the second issue of four: how much of the law must be struck down if the Court finds the individual mandate to be unconstitutional. This legal question is called severability.

When a court rules a law is unconstitutional, it can strike down only those parts it considers unconstitutional. It can strike down the parts that are intertwined with the unconstitutional provision or it can strike down the whole law. Its action will depend upon whether the remainder of the law can function as Congress intended when it passed it.

There are rules governing severability. Normally, when only parts of a law are held to be unconstitutional, only those parts of the law are struck down by the Court. But when a statute's unconstitutional provisions are severed, the whole law falls when Congress would not have passed the constitutional provisions without the unconstitutional ones being in it as well.

It is not enough that some of the remaining provisions are constitutional. The Supreme Court has asked whether the remaining provisions ``would function in a manner consistent with . . . the original legislative bargain.''

The lower courts have reached four different conclusions concerning the health care reform law; first, that the individual mandate can be severed from the rest of the bill; second, that the individual mandate can be severed but only if the law's related provisions that require mandatory issue and community ratings are also severed; third, the opposite position, that the mandate and the related provisions are not severable; and, finally, that the mandate is not severable and that the whole law must fall.

One of my Judiciary Committee colleagues has stated, for the Democrats, ``worst-case scenario, the mandate falls.'' But even the Obama administration does not take that view. The administration argues that if the mandate falls, the guaranteed issue and community rating provisions must also be struck down. The President's administration says health insurance markets will not function if all Americans are not forced to buy health insurance and insurance companies must, nonetheless, insure everyone who seeks coverage at prices that do not reflect their health risk.

If the mandate falls, keeping any of this law would violate the original legislative bargain. I would like to remind my colleagues of that original legislative bargain. The health care law passed because the majority party--in its own partisan way--was going to pass this bill by any means necessary. The individual mandate was very critical to the ability to pass this law and to particularly pass it only by partisan considerations.

We considered an amendment in the Finance Committee that would have granted exemptions from the individual mandate to everybody who asked for that exemption. My good friend, the chairman--and that is Senator Baucus, as we all know--correctly stated: ``The system won't work if this amendment passes.'' He further called it ``an amendment which guts and kills health reform.'' He commented that ``if we are serious about making sure that the Americans have health insurance, we all have to participate. . . .'' So the bill's sponsors knew the whole operation of the law depended upon this very important provision that the Court is now considering on the individual mandate and whether that issue was constitutional.

Let me repeat that. The people promoting this legislation that passed on a partisan vote knew the whole operation of the law depended upon the compulsion of the individual mandate. The legislative bargain also showed this law would not have passed if a single comma had been changed. Congress could not have enacted any part of this law without the individual mandate or any other provision. That situation comes about from the fact that the bill passed the Senate by one vote and individual Senators were able to extract specific provisions that benefited their State in return for agreeing to provide their deciding vote for the bill. I think we all know the outrage that came from the grassroots of America over some of those very special provisions. We also know the American people were disgusted by these deals. But without those arrangements and deals, none of the law would have passed.

Those deals were one of the reasons why the Democrats lost their 60- vote majority in the last election. So when the other body could pass a bill only by accepting the Senate bill, they blocked any amendments that would have changed so much as a comma. Had anything changed, the new 59-vote Senate majority would have prevented passage. The bill was offered on a take-it-or-leave-it basis, all or nothing. If the individual mandate is struck down, then the whole law must fall. Although it is not conclusive, it is certainly relevant that the law does not contain a severability clause. This is one more indication Congress thought the law was a unified whole.

It is simply not reasonable to argue that the law should survive without the mandate. The most important political accomplishment of the law is the additional coverage, not the lower costs we were promised. Without the mandate, coverage under the law evaporates.

Does anyone believe that without the coverage in the law, Congress could have passed the massive Medicaid expansion? Does anyone believe that without the coverage in the law, Congress could have passed the Draconian cuts in Medicare? Does anyone believe that without the coverage in the law, Congress could have passed hundreds of billions of dollars in new taxes? Of course not. It is simply not a legitimate argument that the rest of the bill could have ever stood on its own without the individual mandate enabling additional coverage.

I am pleased the Supreme Court has granted oral arguments devoted to the severability question all by itself. In the past, the Supreme Court has issued very activist severability rulings in which it rewrote a statute in a way Congress never would have passed it.

For instance, it completely rewrote the campaign finance laws in the 1976 Buckley v. Valeo decision in a way that produced an unworkable system that no Member of Congress would have ever voted for. In the Booker case, the Supreme Court rewrote the sentencing laws in a way that produced a very unworkable system that no Member of Congress would have voted for. This time, the Supreme Court should not use the severability doctrine to rewrite the health care law into something Congress never would have passed in the first place. It should strike down the entirety of the law in keeping with the law on this subject. Such a ruling would give us the chance to do what we did not do before: work in a truly bipartisan way to address these issues.

I yield the floor.

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

If the Democrats aren't going to take their time, I would like to take 5 or 6 minutes on another subject, and I ask unanimous consent to do so.

Mr. President, I come to the floor today to commend Secretary of Defense Leon Panetta for personally focusing top-level attention to what has been a festering problem, and I think it is fair for me to say a festering problem for decades. I am talking about the Defense Department's broken accounting system and lack of financial accountability.

Secretary Panetta has grabbed the bull by the horns and told the military services to get on the stick and move out smartly. He wants them to fix the problem now, not later. Secretary Panetta's bold initiative is laid out in a Department-wide memorandum dated October 11 this year. In this document, he calls for an all-hands-on-deck priority effort to accelerate plans to create a modern, fully integrated finance and accounting system. Such a system, if it ever comes to be, would be designed to generate reliable, accurate, and complete financial information. Such a system should be capable of producing credible financial statements that can earn clean opinions from independent auditors. If that happens, the Department will achieve what is called full audit readiness. But now I want to warn Secretary Panetta about what has happened to so many well-intentioned Secretaries of Defense. That could be a big ``if.''

Under the Chief Financial Officers Act of 1990, all government agencies were supposed to reach full audit readiness 15 years ago. As I understand it, the Defense Department is now the only delinquent agency. After the passage of so much time, how is it, then, that the Pentagon cannot provide an accurate accounting of all the money it spends? Doing it is a constitutional responsibility. Not doing it is unacceptable. Why are the military services dragging their feet as they are? What is the problem? Are all of the petty fiefdoms entrenched in Pentagon bureaucracy causing the problem? Is it because they do not want to surrender control of the money to a centralized financial authority?

This is a festering problem Secretary Panetta has tackled. As a former chairman of the House Budget Committee and Director of the Office of Management and Budget, he has the necessary knowledge and the necessary experience to get this job done.

The magic date for achieving full audit readiness at Defense was set in concrete 2 years ago. Unfortunately, this goal has a long and elusive history, and that long and elusive history is best characterized by relentless slippage. It is a rolling target date, and most experts believe the 2017 deadline is unattainable.

I am sure our tax-paying public doesn't understand why the Federal Government wouldn't have the best accounting system in the world, but they don't, particularly in the Defense Department.

Under Secretary Panetta's leadership, I hope all the slippage comes to a screeching halt and all the bureaucratic roadblocks are torn down. He has definitely turned up the heat and turned up the pressure. He has drawn a line in the sand. He wants to see results and see results now. He is calling for a revised plan for achieving audit readiness. It is due on his desk December 13. So Army, Navy, Air Force, Marines, Coast Guard, and everybody else--well, the Coast Guard is not involved but everybody else--get on the stick because that is next week. He has set a near-term goal. He wants the Department to produce partial financial statements by 2014.

As a first step, Secretary Panetta has called for the production of statements of budgetary resources by 2014. A statement of budgetary resources is just one component of a financial statement, but it represents a big important chunk of the whole. If credible statements of budgetary resources can be produced 3 years ahead of schedule, then maybe the full audit readiness by 2017 is, indeed, possible.

I also understand that Secretary Panetta's near-term goal is being incorporated in legislation working its way through Congress right now. That should help to move the ball further down the field.

Secretary Panetta's decision to set a preliminary goal of 2014 will be a good gauge--a good test--of what is and is not possible. Can the Defense Department achieve full audit readiness by 2017? We won't have to wait 6 years to find that out under the process Secretary Panetta is instituting. If problems surface early on, we in Congress can help the Department take corrective action to keep this effort on track and moving in the right direction.

A willingness and a commitment on the part of the Secretary of Defense to take on this problem goes way beyond the production of credible financial statements required by the Chief Financial Officers Act of the late 1970s. It

goes right to the heart of a much larger constitutional issue; that is, whether the Department of Defense is going to be held accountable.

The Department must be able to provide a full and accurate accounting of all the money it spends. Under article I, section 9 of the Constitution, such an accounting must be published from time to time. The taxpayers expect and deserve nothing less than that. Today, DOD can't do that. The status quo is unacceptable.

While I began conducting oversight of the Defense Department financial management issues more than 20 years ago, I did not come to fully appreciate the true understanding of the root cause issue until 3 years ago.

After receiving a series of anonymous letters alleging misconduct and mismanagement within the inspector general's audit office, I initiated an in-depth oversight review of audit reporting. Early on in the review, there was a startling revelation: One all-important, central element was adversely affecting every facet of the inspector general's audit effort, and that was the Department's broken accounting system. This dysfunctional system is driving the audit freight train. The success or failure of an audit turns on the quality of the financial data available for audit by competent examiners. The record clearly shows the quality of financial data presented for audit by the Department should be rated poor--or maybe I ought to say even worse than poor. This is what I call the ``no audit trail'' scenario. It is frequently encountered by auditors trying to examine Department of Defense books of account. That is the exact problem Secretary Panetta is attempting to address.

All my audit oversight work tells me that fixing the accounting machinery is the first step to audit readiness. Once a modern, fully integrated system is up and running, it should be a simple matter of punching the right computer buttons and credible financial statements will roll off of the printer. Doing routine oversight audits should be a piece of cake. Today's labor-intensive and time-consuming audit trail reconstruction work which auditors now endure in the absence of reliable accounting records will be a thing of the past. Most importantly, effective internal controls will be in place to protect the taxpayers' money against fraud, theft, and waste.

What I am saying to my colleagues is this: Secretary Panetta is on the right track. He is trying to take us to a place where we need to go and go soon. I want to help him lead us there, so I am here today to encourage and support this courageous effort to clean up the books. I admire and respect his personal commitment to such a noble cause.

I am also here to reinforce the words of encouragement contained in a letter that my friend from Oklahoma, Dr. Coburn, and I penned to Secretary Panetta on November 17. We, being Senator Coburn and I, want to work with him to achieve this most worthy goal. And in the process of these remarks to the Senate, I hope other Members of the Senate, particularly those who are on the Armed Services Committee, will also give Secretary Panetta encouraging words of support and thanks.

I yield the floor.

The Alcohol, Tobacco, Firearms is a division of the Justice Department. I have been investigating Alcohol, Tobacco, Firearms' Operation Fast and Furious for almost 11 months now. It is past time for accountability at the senior levels of the Justice Department. That accountability needs to start with the head of the criminal division, Lanny Breuer. I believe it is time for him to go, and I wish to explain why I have come to that conclusion.

The Justice Department denied, in a letter to me on February 4, 2011, that ATF had ever walked guns. Mr. Breuer had been consulted in the drafting of that erroneous letter of February 4, this year.

On May 2, 2011, rather than acknowledging the increasingly obvious facts and apologizing for its February letter, the Justice Department reiterated its denial on May 2, this year, the same denial of February 4th.

Thus, when the Justice Department revealed on October 31 of this year that

Breuer had known as far back as April 2010 about gunwalking at ATF, I was astounded. That was a shocking revelation.

The controversy about gunwalking in Fast and Furious has been escalating steadily for 10 months now. The Justice Department had publicly denied to Congress that ATF would ever walk guns. Yet, the head of the criminal division, Mr. Breuer, knew otherwise and said nothing. He knew the same field division was responsible for walking guns in a 2006-2007 case, and that case was called Wide Receiver.

But the real shock was how Mr. Breuer had responded within his own department when that earlier gunwalking was first brought to his attention in April 2010. He didn't tell the Attorney General. He didn't tell the Attorney General's Chief of Staff. He didn't tell the Deputy Attorney General. He didn't tell the inspector general. Instead, he simply told his deputies to meet with ATF leadership and inform them of the gunwalking:

. . . so they know the bad stuff that could come out.

Later, his deputy outlined a strategy to:

. . . announce the case without highlighting the negative

part of the story and risking embarrassing ATF.

Think about that. In that case, saving face was more important than the bad policy.

For 18 months, the embarrassing truth about ATF gunwalking in Wide Receiver and Breuer's knowledge of it was successfully hidden. It only came out because of the congressional investigation into gunwalking in Fast and Furious.

The public outrage over Fast and Furious comes from the average American who cannot understand why their very own government would intentionally allow criminals to illegally buy weapons for trafficking into Mexico.

Next week, it will be 1 year since Border Patrol Agent Brian Terry was murdered by bandits armed with guns as a direct result of this policy of letting guns walk. The Terry family, and all Americans who sympathize with their loss, are rightfully outraged and astonished at their very own government doing such a thing. Yet, when Mr. Breuer learned of a case where ATF walked guns in a very similar way, all he did was give ATF a heads up. There seems to be a vast gulf between what outrages the American people and what outrages Lanny Breuer.

Mr. Breuer showed a complete lack of judgment by failing to object to the gunwalking that he knew about in April 2010, 9 months before I was ever aware of Fast and Furious. If Mr. Breuer had reacted to gunwalking in Wide Receiver the way most Americans reacted to gunwalking in Fast and Furious, he would have taken steps to stop it and hold accountable everyone involved. Consequently, Fast and Furious might have been stopped in its tracks and Brian Terry might be alive.

When Mr. Breuer came before the Senate Judiciary Subcommittee on Crime and Terrorism the day after those revelations, I gave him a chance to explain himself. I listened to what he had to say. He told us that he:

. . . thought that . . . dealing with the leadership of ATF

was sufficient and reasonable.

Clearly, it was not sufficient. Mr. Breuer even admitted as much, saying:

I regret that I did not alert others within the leadership

of the Department of Justice to the tactics used in Operation

Wide Receiver when they first came to my attention.

He regrets not bringing gunwalking in Wide Receiver to the attention of the Attorney General. But what about bringing it to the attention of Congress? He didn't even step forward to express his regret until e- mails that detailed his knowledge were about to be produced under congressional subpoena.

It is astounding then that it took the public controversy over Fast and Furious to help the chief of the criminal division realize that walking guns is unacceptable. Yet he had had 9 months after the February 4 letter to step forward, correct the record, and come clean with the American public. He had 18 months, after learning of gunwalking in Wide Receiver, to put a stop to it and hold people accountable. He failed to do so.

During his testimony, I asked him pointblank if he reviewed that letter of February 4 before it was sent to me. His misleading answers to these questions formed the basis for my second reason for calling on Mr. Breuer to resign. He responded that he could not say for sure but suggested that he did not review the letter. He said, ``[A]t that time, I was in Mexico dealing with the very real issues that we are all so committed to.''

Last Friday, the Justice Department withdrew their February 4 letter to me because of its inaccuracies--and the word ``inaccuracy'' is their word. The Department also turned over documents under subpoena about who participated in the drafting and the reviewing of the letter. One can imagine my surprise when I discovered from documents provided Friday night that Mr. Breuer was far more informed during the drafting of that letter than he admitted before the Judiciary Committee. In fact, Mr. Breuer got frequent updates on the status of the letter while he was in Mexico.

He was sent versions of the letter four times. Two versions were e- mailed to Mr. Breuer on February 4, after he returned from Mexico, including the version of the letter that was ultimately sent to me that day. At that time, he forwarded the letter to his personal e-mail account. Mr. Breuer's Deputy also sent him two drafts of the letter while he was in Mexico, and he also forwarded one of those to his personal e-mail account. We do not know whether he did that in order to access it on a larger screen than the Government-issued BlackBerry or whether he engaged in any further discussion about the letter in his nongovernment e-mail account. However, we do know, in response to the draft received in Mexico, he wrote to one of the main drafters of the letter: ``As usual, great work.''

The Justice Department excluded Breuer's compliment about the context of the draft from the set of e-mails it released to the press on Friday, before they released those documents to this Senator.

That evening, Mr. Breuer submitted answers to written questions. He wrote:

I have no recollection of having [seen the letter] and,

given that I was on official travel that week and given the

scope of my duties as Assistant Attorney General, I think it

is exceedingly unlikely that I did so.

So as late as last Friday night, Mr. Breuer was still trying to minimize his role in reviewing the letter, despite all the evidence to the contrary. Why would Mr. Breuer say ``great work'' to a staffer about a letter he claimed he had not read?

It is not credible that someone such as Mr. Breuer would forget about his involvement in a matter such as this. Mr. Breuer's failure to be candid and forthcoming before this body irreparably harms his credibility. His complete lack of judgment and failure to deal with gunwalking when he first learned of it in April 2010 was bad enough, but this is the final straw. Mr. Breuer has lost my confidence in his ability to effectively serve the Justice Department. If he cannot be straight with the Congress, he doesn't need to be running the Criminal Division. It is time to stop spinning and start taking responsibility.

I have long said the highest ranking individual who knew about gunwalking and Operation Fast and Furious needs to be held accountable. That standard applies no less to officials who knew about gunwalking in Operation Wide Receiver. Gunwalking is unacceptable no matter when it occurred. Documents made clear that Assistant Attorney General Breuer was the highest ranking official in the Justice Department who knew about gunwalking in Operation Wide Receiver. He did nothing to correct the problem, alert others to the issue, take responsibility or even admit what he knew until he was forced to do so by the evidence. Therefore, I believe the Attorney General needs to ask for Mr. Breuer's resignation or remove him from office if he refuses. If Mr. Breuer wants to do the honorable thing, he would resign.

I am not somebody who flippantly calls for resignations. I have done oversight for many years, and in all that time I don't ever remember coming across a government official who so blatantly placed sparing the agency embarrassment over protecting the lives of citizens. He has failed to do his job of ensuring that the government operates properly, including holding people accountable.

Because of that, Mr. Breuer needs to go immediately. Anything less will show the American people the Justice Department is not serious about being honest with Congress in our attempt to get to the bottom of this.

In regard to my attempt to get to the bottom, just last night the Justice Department sent a letter refusing to provide several Justice Department staff for transcribed interviews. The letter explicitly goes back on the assurances I received when I consented to proceed with the confirmation of three senior Justice Department officials, which I had held up to get an agreement to get the information Congress is entitled to.

One of my conditions for agreeing to proceed with those nominations was that officials who agreed to voluntary interviews in this investigation would have either a personal lawyer present or a Department lawyer present but not both. I personally met with the Attorney General, and he had the conditions listed on a piece of paper in front of him. It looked as if he had read it and was familiar with it. Yet he never objected to that condition.

Dozens of witness interviews have been conducted under that understanding with no problem. The only difference is that instead of ATF witnesses, we are now seeking to interview Justice Department witnesses. What is good for the goose is good for the gander. There is no reason to change the rules in the middle of the game. I was relying on the Attorney General and other officials at the Department to honor their agreement. Apparently, that is not going to happen.

Fortunately, Chairman Issa has the ability to require the witnesses to appear via subpoena if they refuse to appear voluntarily under conditions that the Department previously agreed to with me. I am confident he will do that if it becomes necessary, and I will take whatever steps I have to take in the Senate to encourage the Department to reconsider and stick to its original agreement.

I yield the floor.

Mr. President, I ask unanimous consent that Ty Grogan, an intern of Senator DeMint's office, be granted floor privileges for today's session of the Senate.

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

Madam President, soon we will be taking up the nomination of Caitlin Halligan to the DC District Court. I oppose the nomination. This is why the nomination should not be confirmed.

Nominations to the DC Circuit deserve special scrutiny. The Court of Appeals, DC Circuit, hears cases affecting all Americans. This court frequently is the last stop for cases involving Federal statutes and regulations. Many view this court as second in importance only to our Supreme Court.

As we all know, judges who sit on the DC Circuit are frequently considered for the Supreme Court. So there is a lot at stake with any nominee appointed to the DC Circuit.

Ms. Halligan has an activist record. There are additional concerns regarding her judicial philosophy and her approach to interpreting the Constitution.

The second amendment, for instance, in 2003, Ms. Halligan gave a speech where she discussed her role in suing gun manufacturers for criminal acts committed with handguns.

At the time, Congress was debating the Protection of Lawful Commerce in Arms Act or, as most of us called it at the time, the gun liability bill. Those lawsuits, of course, were based on meritless legal theories and were specifically designed to drive gun manufacturers out of business.

As it turns out, while many of us were fighting in Congress to stop these nuisance lawsuits, Ms. Halligan was pursuing this precise type of litigation, based on the same bogus legal theories on behalf of the State of New York.

In New York v. Sturm, Ms. Halligan argued that gun manufacturers contributed to a public nuisance of illegal handguns in the State. Therefore, she argued that gun manufacturers should be liable for criminal conduct of third parties. The New York appellate court, however, explicitly rejected her theory. The court explained that it had ``never recognized [the] common law public nuisance cause of action'' that Ms. Halligan had advanced. Moreover, the court correctly concluded that ``the Legislative and Executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.''

While we were debating the gun liability bill, Ms. Halligan delivered a speech where she expressed her strong opposition to that legislation. She opposed it because it would stop the type of lawsuit she was pursuing. She said:

If enacted, this would nullify lawsuits brought by nearly

30 cities and counties--including one filed by my office--as

well as scores of lawsuits brought by individual victims or

groups harmed by gun violence. . . . Such an action would

likely cut off at the pass any attempt by States to find

solutions--through the legal system or their own

legislatures--that might reduce gun crime or promote greater

responsibility among gun dealers.

Later in that same speech, she expressed her view of the law and legal system. She said:

Courts are the special friend of liberty. Time and again,

we have seen how the dynamics of our rule of law enables

enviable social progress and mobility.

This statement is very troubling, especially as it relates to the nuisance lawsuit against gun manufacturers. Those lawsuits are a prime example of how activists on the far left try to use the courts to effect social policy changes they are somehow unable or unwilling to fight to achieve through the ballot box. That is why I believe those lawsuits represent not only bad policy but, more broadly, an activist approach to the law.

I am also concerned about Ms. Halligan's views on the war on terror and the detention of enemy combatants. This is especially troubling because Ms. Halligan is the nominee for the DC Circuit Court, where we know a lot of these issues are often heard.

In 2004, Ms. Halligan was a member of the New York City Bar Association that published a report entitled ``The Indefinite Detention of Enemy Combatants and National Security in the Context of the War on Terror.'' That report argued there were constitutional concerns with the detention of terrorists in military custody. It also argued vigorously against trying enemy combatants in military tribunals. Instead, it argued in favor of trying terrorists in civilian article III courts.

As I said, Ms. Halligan is listed as one of the authors of that report. But when it came to testifying at her hearing, Ms. Halligan tried to distance herself from that report. She testified she did not become aware of the report until 2010. In a followup letter after her hearing, Ms. Halligan did concede ``it is quite possible that [a draft of the report] was sent to me,'' but she could not recall reading the report.

I recognize memories fade over time. But as I assess her testimony, I think it is noteworthy that at least four other members of the committee abstained from the final report. Ms. Halligan did not.

I also point out that she coauthored an amicus brief before the Supreme Court in a 2009 case of Al-Marri v. Spagone. Ms. Halligan's brief in that case took a position similar to the 2004 report with respect to military detention of terrorists. In that case, she argued that the authorization for use of military force law did not authorize the seizure and indefinite military detention of a lawful permanent resident alien who conspired with al-Qaida to execute terror attacks on our country.

The fact that Ms. Halligan coauthored this brief, pro bono, suggests to

me she supported the conclusions reached by the 2004 report. Again, this issue is particularly troublesome for a nominee to the DC Circuit, where, as I have already said, many of these questions are heard.

There are a number of other aspects of her record that concern me. For instance, she authored an informal opinion on behalf of Attorney General Spitzer regarding New York's domestic relations law. That opinion invoked a theory of an evolving Constitution.

As New York's solicitor general, Ms. Halligan was responsible for recommending to the attorney general that the State intervene in several high-profile Supreme Court cases. She filed amicus briefs that consistently took activist positions on controversial issues, such as abortion, affirmative action, immigration, and federalism.

I will give you some instances. In Scheidler v. National Organization for Women, she supported NOW's claim that pro-life groups had engaged in extortion.

In the twin affirmative action cases of Grutter v. Bollinger and Gratz v. Bollinger, she argued that the use of race in college and law school admissions was not only appropriate but constitutional.

In Hoffman Plastics Compounds v. NLRB, she argued that the NLRB should have the authority to grant backpay to illegal aliens, even though Federal law prohibits illegal aliens from working in the United States.

Ms. Halligan represented New York in Massachusetts v. EPA, where a number of States argued that the Clean Air Act authorized and required the EPA to regulate automobile emissions and other greenhouse gases associated with climate change.

These are just some of my many concerns regarding the nominee's judicial philosophy and her approach to constitutional interpretation.

Based on her record, I do not believe she will be able to put aside her long record of liberal advocacy and be a fair and impartial jurist.

Yesterday, before the votes on the judicial nominations we confirmed, I made a few remarks regarding the history of this seat. So I will briefly review again the approach I have been arguing for more than a decade--and I had the support of other Senators--that there are too many seats and it is an underworked circuit. It may come as a surprise to some, but this seat has been vacant for over 6 years. It became vacant in September 2005, when John Roberts was elevated to Chief Justice of our Supreme Court. But it has not been without a nominee for all that time.

In June of 2006, President Bush nominated an eminently qualified individual for this seat, Peter Keisler. Mr. Keisler was widely lauded as a consensus bipartisan nominee. His distinguished record of public service included service as Acting Attorney General. Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote that never came.

But Mr. Keisler was not the only one of President Bush's nominees to the DC Circuit to receive a heightened level of scrutiny. In fact, when President Bush was President, his nominees to the DC Circuit did not simply receive heightened scrutiny but were subjected to every conceivable form of obstruction.

Those of us who were here remember these debates very well: Estrada, Roberts, Griffith, Kavanaugh, Keisler, and Brown. All these nominees had difficult and lengthy processes. This included delays, multiple filibusters, multiple hearings, boycotting markups so we would not have a quorum to vote on their confirmation, including even invoking the 2- hour rule during committee markup and other forms of obstruction.

I have not suggested we repeat all the tactics used by the other side employed during the last Republican administration. I do believe, however, it is important to remind my colleagues of the precedents the other side established for nominees to this circuit.

There is one other relevant fact I would like to briefly discuss in connection with this vote; that is, the workload of the DC Circuit. That gets back to what I have already referred to--that it has been underworked compared to other circuits.

When Peter Keisler was nominated to the same seat, my friends on the other side objected to even holding a hearing for the nominee, based upon concerns about the workload of the DC Circuit. So here is something we tend to agree on, which has gone by the wayside now that we have a nominee from the President of the other party for this same seat. During Mr. Keisler's hearing, one of my Democratic colleagues summarized the threshold concerns. He said:

Here are the questions that just loom out there: 1) Why are

we proceeding so fast here? 2) Is there a genuine need to

fill this seat? 3) Has the workload of the DC circuit not

gone down? 4) Should taxpayers be burdened with the cost of

filling that seat? 5) Does it not make sense, given the

passion with which arguments were made only a few years ago,

to examine these issues before we proceed?

So we have five very important questions that are applicable today from a Member on the other side of the aisle.

I have not heard these same concerns expressed by my friends on the other side with respect to Ms. Halligan's nomination. But that does not mean these issues have gone away.

Statistics from the Administrative Office of the U.S. Courts show that caseloads on the DC Circuit have decreased markedly over the last several years. This decrease is evident in both the total number of appeals filed and the total number of appeals pending. Specifically, the total number of appeals filed decreased by over 14 percent between 2005, when there were 1,379 appeals filed, and the year 2010, when only 1,178 appeals were filed.

The workload decline is also demonstrated in the per-panel and per- judge statistics. Filings per panel and filings per judge show a decline of nearly 7 percent during this period. Pending appeals per panel dropped over 9 percent.

When you examine the caseload statistics in relationship to other circuit courts, the DC Circuit ranks last in nearly every category. For instance, the DC Circuit has the fewest total appeals filed per panel and only half as many appeals filed per panel as the 10th circuit, which has the second fewest in the country. They have the fewest number of appeals terminated per judge. And again, they have roughly half as many terminations per judge as the second least busy circuit--again, the 10th circuit.

They have the fewest signed written decisions per active judge, with 57. By way of comparison, the second circuit has 5 times as many, with 270 per active judge. The 10th circuit has roughly 4 times as many, with 240 per judge. They have fewest total appeals terminated per panel, with 347.

By way of comparison, the 11th circuit had over 4 times as many total appeals terminated in 2010, with 1,574. The ninth circuit had nearly 4 times as many, with 1,394. And the second and fifth circuits each had 1,329.

Given these statistics, we should be having a discussion on reducing the staffing for this court, not filling a vacancy. This seat is not a judicial emergency. And with our massive debt and deficit, I don't understand why we would be spending our time and resources, particularly on a highly controversial nomination.

Given the concerns I have about Ms. Halligan's record on the second amendment, the war on terror, and other issues, my concerns regarding her activist judicial philosophy and the Court's low workload, I oppose this nomination, and I urge my colleagues to do the same.

I would note in closing the number of organizations expressing their opposition to this nomination: the American Conservative Union, the National Rifle Association, Gun Owners of America, Citizens Committee for the Right to Keep and Bear Arms, Committee for Justice, Concerned Women of America, the American Center for Law and Justice, Heritage Action, Liberty Counsel, Family Research Council, Eagle Forum, and there are others.

I yield the floor.

Mr. President, today the Senate is expected to confirm four additional judicial nominees. With these votes, we will have confirmed 61 article III nominees this Congress.

I want to note that in the first session of the 112th Congress we have now confirmed more nominees than during the entire 111th Congress. So I think we can declare real progress. Over 72 percent of President Obama's judicial nominees have been confirmed.

Despite this record of confirmations, we continue to hear complaints about the way this President's nominees are being treated. So I point out that in only six sessions of Congress in the last 30 years have more nominees been confirmed in a single session. Furthermore, given the cooperation we have shown, I am disappointed that the Senate majority wants to turn to a controversial nomination next rather than continue on the path of cooperative confirmations.

The Senate majority leader has scheduled a cloture vote for tomorrow on the nomination of Caitlin Halligan to be U.S. Circuit Judge for the District of Columbia Circuit. I will speak more about the merits of that nomination Tuesday. But I wanted to put that vote in some context.

It seems to me that the scheduling of such a controversial vote in the closing days of a session of Congress is designed to simply heat up the partisanship of judicial nominations. Perhaps that is the objective. The result may well be that such a divisive vote might have a chilling effect on reaching agreement on additional judicial nomination votes. I hope that is not the case. But everyone knows the final weeks of a session are often filled with unpredictable actions and outcomes.

With regard to the vote tomorrow, there will be some who say this nomination has been vacant for too long and that this nominee is being treated unfairly, needlessly waiting on the calendar for too many weeks. Well, such arguments fail to consider the history of this particular seat of the DC Circuit and of the record established by my colleagues on the other side regarding the consideration of nominations for this very same DC Circuit.

This seat has been vacant for over 6 years. It became vacant upon the elevation of John Roberts as Chief Justice. That was back in September 2005. Following Justice Robert's appointment, Peter Keisler was nominated to fill the vacancy in June 2006, with a hearing held August 1, 2006.

With a Republican majority in the 109th Congress, one would wonder why he never made it out of committee. Well, it is not that he did not have the votes in committee. The fact is, the Democratic minority would not allow a vote. This was accomplished by holding him over at his first markup, which the rules permit and is a legitimate exercise of the right of a minority and a right that this minority on our side exercised quite frequently this very year.

However, for the remaining executive sessions in September of that year, prior to final adjournment they either made sure the committee did not have a quorum so we could not vote or they took the extraordinary step of invoking the 2-hour rule so the committee could not meet. I note that a quorum was present early in one meeting but evaporated when Mr. Keisler's nomination was the pending business. So basically the opponents ran out the clock on this nomination. He did not get a committee vote. He did not get the courtesy of floor consideration, not even a cloture vote like the nominee tomorrow will have.

Mr. Keisler was renominated in June 2007 when the Democrats assumed control of the Senate. But his nomination sat in committee with no action until it was returned to the President in January 2009. He was the recipient of a pocket filibuster. This was despite being rated ``unanimously well qualified'' by the ABA Standing Committee of the Federal judiciary and possessing outstanding qualifications to fill this position. So complaints about this seat being vacant for too long just ring hollow with this Senator.

Likewise, when one considers the treatment of previous nominees to the DC Circuit, it is evident that the nomination of Ms. Halligan is not being treated in an unfair manner. In fact, her nomination is proceeding far better than many nominated to this court. I would remind my colleagues that previous nominees were subjected to delay or multiple hearings, to extensive delays in committee, and to multiple filibusters on the Senate floor.

These include the nomination of Estrada, a Hispanic immigrant with a compelling personal story and outstanding judicial qualifications, who was subject to seven cloture votes; Janice Brown, an African-American female who had two cloture votes; Brett Kavanaugh; and Thomas Griffin. While all of these individuals were eventually confirmed, the procedural tactics used in their nominations made the confirmations very difficult.

I am not suggesting this is a pattern to follow, but it is relevant to the arguments that Ms. Halligan is being treated quite differently or in an unfair manner than other nominees.

With regard to the nomination before us today, I will say a few words about, first, Mr. Ramos, who is nominated to be U.S. District Judge for the Eastern District of New York. Mr. Ramos earned a BA from Yale in 1982; JD Harvard, 1987. Upon graduation from law school, Mr. Ramos worked as an associate at the law firm of Simpson, Thatcher & Bartlett in New York City.

In 1992, Mr. Ramos joined the Office of the U.S. Attorney for the Eastern District of New York, where he prosecuted a variety of Federal crimes, including white-collar crime, defense contractor fraud, money laundering, narcotics trafficking, labor racketeering, and violation of the Arms Export Control Act. In June 2000, he was

promoted to Deputy Chief of the Narcotics Section, where he supervised assistant U.S. attorneys prosecuting international narcotics trafficking and racketeering cases.

In 2002, the nominee joined the law firm of Day, Berry & Howard LLP, predecessor to the firm Day Pitney LLP, as a partner in the government investigations practice group. Currently, he represents corporations and individuals in connection with criminal and regulatory investigations involving antitrust, bank fraud, public corruption, securities fraud, and government program fraud.

The American Bar Association's Standing Committee on the Federal Judiciary has rated Mr. Ramos with a unanimous ``well qualified'' rating.

We are also considering the nomination of Judge Andrew L. Carter to be U.S. District judge, Southern District of New York. Judge Carter earned his B.A. from the University of Texas in 1991 and his J.D. from Harvard Law School in 1994.

Judge Carter's legal career began in 1996 as a staff attorney for the criminal defense division, Legal Aid Society, in New York, NY. In 2000, he became staff attorney for the Federal defenders division. The nominee became affiliated with the Federal Defenders of New York in 2005, first as staff attorney and, 1 year later, as a supervising attorney. His Federal practice included drug cases, gun cases, and immigration fraud.

In 2009, Judge Carter was appointed to his current position of U.S. magistrate judge for the Eastern District of New York, where he is primarily responsible for handling civil matters.

The American Bar Association's Standing Committee on the Federal Judiciary has rated Judge Carter with a unanimous ``qualified'' rating.

The third nominee we are considering is James Rodney Gilstrap to be a district judge for the Eastern District of Texas, a seat deemed to be a judicial emergency. Mr. Gilstrap received his B.A. from Baylor in 1978 and his J.D. from Baylor University School of Law 1981.

Mr. Gilstrap served as an associate attorney for Abney, Baldwin & Searcy from 1981 to 1984. In 1984, he left to begin his own legal practice, Smith & Gilstrap, where he currently practices representing individuals, corporations, and local governments on civil matters.

From 1989 to 2002, Mr. Gilstrap served as a county judge for Harrison County, where he had both administrative and judicial responsibilities.

The ABA Standing Committee on the Federal Judiciary has rated Mr. Gilstrap with a unanimous ``qualified'' rating.

Then we have the distinguished nominee from Montana, whom Senator Baucus just spoke about, Dana L. Christensen, to be U.S. District Judge for the District of Montana.

Mr. Christensen earned his B.A. from Stanford University in 1973 and his J.D. from the University of Montana School of Law in 1976.

Earlier in his legal career, Mr. Christensen practiced natural resources law, representing coal mining and oil and gas companies in litigation in administrative matters. He went on to practice general insurance defense litigation and medical malpractice cases.

In 1996, he founded his own firm and continues to represent these entities and practices in this area. He has also represented defendants in large class-action lawsuits filed in the U.S. District Court for the District of Montana.

In addition to his litigation practices, Mr. Christensen has also represented at least 15 physicians in confidential disciplinary matters before the Montana Board of Medical Examiners. He has also represented health care providers in more than 200 matters before the Montana Medical Legal Panel.

The American Bar Association's Standing Committee on the Federal Judiciary has rated Mr. Christensen with a unanimous ``well qualified'' rating.

I intend to vote for all these candidates. I urge my colleagues to do the same.

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