Floor Statements

Mr. President, I ask unanimous consent that Matthew House and Brandon Scheuring of my Finance Committee staff be granted privileges of the floor for the duration of the 111th Congress.

Madam President, I thank the Senator from Arkansas for what she has said. It really is unfortunate that we cannot get this Pigford legislation passed.

I know the distinguished Presiding Officer, the junior Senator from North Carolina, has been working on this very hard as well. In fact, she and I have cosponsored a piece of legislation to give justice in this area as well.

Today, we have an opportunity to finally take care of this situation of bringing justice to Black farmers who have been waiting for decades to settle their discrimination claims against the Department of Agriculture. Earlier this year, Secretary Vilsack was able to reach a settlement agreement with the Pigford II claimants who were denied a determination on the merits of their claims against the USDA for no reason other than they had filed late.

The government has an obligation to fund the settlement, which is subject to court approval, and Congress must act to provide relief for these claimants and do it quickly. The Black farmers have been asking for stand-alone consideration of this bill. That is what I was hoping to get done today.

I have nothing against what my colleagues are doing on the Cobell settlement as well.

I think it is fair to say that such appropriation for the Pigford settlement ought to be offset.

There is an advocate for the Black farmers--John Boyd. I have been working with him for a long period. He was working hard on this a long time before I was. We should be getting this resolved for the benefit of the farmers but also for the advocates, those people who have been working so hard finding ways to get it done. We thought now was the opportunity to get it done.

The farm bill we passed last year does one thing right: it focuses a considerable amount of resources on new and beginning farmers and ranchers. Many of the Pigford claimants were in that same boat 20 years ago. We have an opportunity to rectify that misjustice. We know USDA has admitted the discrimination occurred. Now

we are obligated to do our best getting relief to those who deserve it. It is time to make these claimants right and move forward into a new era of civil rights in the Department of Agriculture.

I look forward to the time we can get this done. I plead with my colleagues, as the Senator from Arkansas pleaded, to get this done right now.

I yield the floor.

Mr. President, we spent nearly 6 weeks debating a bill that would help small business.

My friends on the other side of the aisle exclaimed that the bill was a jobs bill, one that would help small business--the engine of our economy.

The senior Senator from Louisiana--for whom I have great admiration as an advocate for small business--said, ``If the Democrats aren't for small business, I don't know what we're for.''

Well, the small business jobs bill was not passed by this body.

My friends on the other side will claim that Republicans blocked the bill.

But I think my friends need to look in the mirror when placing blame on their inability to govern.

Even if the small business jobs bill would have passed, the tax measures in that bill are only a drop in the bucket when it comes to the taxes and increased regulation small business is going to have to endure.

That's right, although Democratic leadership and the White House continue to say that they are for small business, any legislative measure that has been advertised as helping small business has not lived up the hype.

Let's start with the new health care reform law.

During the debate over health care reform, my friends on the other side of the aisle--including top officials in the White House-- explained that the new law would provide tax credits to small business to help them pay for health insurance.

My friends said it so many times, you would almost think that the so- called tax credit was the best thing since sliced bread.

Many Democratic Senators based their vote in favor of the health care reform bill solely on the belief that the small business tax credit for health insurance would help struggling small businesses.

Well, even after the White House spent taxpayer dollars to send postcards to 4 million small businesses informing them of the so-called tax credit for health insurance, the tax credit has been a dud.

That is not according to this Senator; that is according to small business owners and brokers who are in the business of selling insurance to small business.

For example, just the other day--Thursday, July 29--the Bloomberg news organization wrote an article noting that the response to the so- called tax credit for small business ``has been cool'' according to ``health-plan brokers across the country.''

Here are some quotes from the article about the small business tax credit:

James Stenger, director of business development for Benefit-Mall, said, ``The reality is it doesn't meet the hype . . . It's had very little traction so far . . .''

Russ Childers, a broker in Americus, GA, said, ``It fell short of what was needed to help businesses.''

Todd Page, of Warrenville, IL, said, ``We've really wanted it to work, because we'd sell more . . . It just hasn't worked out, and most firms have been disappointed.''

Thomas Harte, president of Landmark Benefits, Inc., said, ``We're not seeing more people becoming insured as a result of a subsidy coming their way.''

They are not the only ones decrying the so-called tax credit for health insurance.

The chief executive officer of the largest organization representing small business--the National Federation of Independent Business-- questioned the effectiveness of this tax credit.

Small business owners who also had high hopes that the credit would help them were surprised and extremely disappointed when they found out they did not qualify for the credit.

A May 20 Associated Press article chronicles these frustrations.

I would like to read one passage from the article before I move on. The article said:

Zach Hoffman was confident his small business would qualify

for a new tax cut in President Barack Obama's health care

overhaul law. But when he ran the numbers, Hoffman discovered

that his office furniture company wouldn't get any assistance

with the $79,200 it pays annually in premiums for its 24

employees. `It leaves you with this feeling of a bait-and-

switch,' he said.

Every day, I hear from Iowa small business owners who are frustrated with the so-called small business tax credit for health insurance.

I have been told that--after gathering all of the required information and paying an accounting professional to calculate all of the phaseouts and limitations--the time and cost almost outweighs any benefit for those businesses lucky enough to qualify.

Steven Yeater of Wilton, IA, the co-owner of a products finishing business, wrote me a letter telling me that the tax credit is ``(1) not well thought out or discussed, (2) ridiculously complicated for a small business owner to understand and implement, and (3) once again, Congress is over-selling/over-promising the benefits of the tax credit.''

This is just one example where the Democratic majority has failed small business.

This is one example where the Democratic majority has touted a so- called benefit for small business that did not live up to its hype.

And now, small business is faced with mounting tax increases and regulatory burdens.

What do I mean?

The new health care reform law included 20 tax increases. Thirteen of them fall on individuals and families, and 7 of them hit businesses.

These tax increases will be devastating for small business. Moreover, these tax increases far outweigh the benefit of the so-called small business tax credit for health insurance that some businesses are lucky enough to receive.

And this is not the only tax increase small business will face. When Congress returns after the August recess, we are going to debate the bipartisan tax relief that was enacted back in 2001 and 2003. That tax relief is set to expire at the end of this year unless Congress acts. Allowing the bipartisan tax relief to expire will result in the largest tax increase in our Nation's history.

My friends on the other side of the aisle have indicated that they would like to extend the bipartisan tax relief for the ``middle class.''

I want to emphasize that this means that my Democratic colleagues want to extend 80 percent of the bipartisan tax relief that they like to call the Bush tax cuts.

Actually, the only reason why they call it the Bush tax cuts is to vilify the tax relief. But my friends seem to support 80 percent of the tax cuts they enjoy vilifying so often.

Which brings me to my final point. My friends on the other side of the aisle would extend some of the tax relief but not all of it. My friends want to allow the top marginal tax rates--and a number of hidden taxes that affect these taxpayers--to expire. Why? Because my friends say the country--our Federal Government--cannot afford to give tax cuts to the ``rich.''

But, it is not the rich who are going to be burdened if the rates were allowed to expire; it is small business that will suffer.

So in closing, I refer back to the statement of the distinguished Senator from Louisiana, which was, if Democrats are not for small business, I don't know what we are for.

The Democratic leadership is not for extending all of the bipartisan tax relief. So I will leave it to others to decide whether or not my Democratic colleagues are for small business.

I ask unanimous consent to have the items to which I referred printed in the Record.

Mr. President, I ask unanimous consent that Jessica Waters and Aaron Smith of my Finance Committee staff and Carolyn Coda and Thomas Ryan of my Judiciary Committee staff be granted the privileges of the floor during the 111th Congress.

I thank the Senator from Rhode Island. He is always very courteous to me.

Mr. President, I rise to take a few minutes to discuss the reasons why I am voting against Elena Kagan to be Associate Justice. An appointment to the Supreme Court is one of the most important positions an individual can hold under our Constitution. It is a lifetime position on the highest Court of the land. I take very seriously my constitutional role of advice and consent. The Senate's job is not only to provide advice and consent by confirming nominees who are intelligent and accomplished. Our job is to confirm nominees who will be fair and impartial judges, individuals who truly understand the proper role of a Justice in our system of government. Our job, then, is to confirm nominees who will faithfully interpret the law and the Constitution without personal bias or prejudice.

When the Senate makes its determination, we must carefully assess the nominee's legal experiences, record of impartiality, and commitment to the Constitution and rule of law. We need to assess whether the nominee will be able to exercise what we call judicial restraint. We have to determine if the nominee can resist the siren call to overstep his or her bounds and encroach upon the duties of the legislative and executive branches. Fundamental to the U.S. Constitution are the concepts of these checks and balances and the principle of separation of powers. The preservation of our individual freedoms actually depends on restricting the role of policymaking to legislatures rather than allowing unelected judges with lifetime appointments to craft law and social policy from the judicial bench. The Constitution constrains the judiciary as much as it constrains the legislative branch and the executive branch under the President.

When President Obama spoke about the criteria by which he would select his judicial nominees, he placed a very high premium on a judge's ability to have, in his words, ``empathy when deciding the hard cases.'' This empathy standard glorifies the use of a judge's heart and broader vision of what America should be in the judicial process. He said that individuals he would nominate to the Federal judiciary would have ``a keen understanding of how the law affects the daily lives of American people.'' So when President Obama nominated Elena Kagan to the Supreme Court, we have to assume he believed she met his ``empathy'' standard.

This empathy standard is a radical departure from our American tradition of blind, impartial justice. That is because empathy necessarily connotes a standard of partiality. A judge's impartiality is absolutely critical to his or her duty as an officer of an independent judiciary, so much so that it is actually mentioned three times in the oath of office that judges take.

Empathetic judges who choose to embrace their personal biases cannot uphold their sworn oath under our Constitution. Rather, judges must reject that standard and decide cases before them as the Constitution and the law requires, even if it compels a result that is at odds with their own political or ideological beliefs.

Justice is not an automatic or a mechanical process. Yet it should not be a process that permits inconsistent outcomes determined by a judge's personal predilections rather than from the Constitution and the law. An empathy standard set by the President that encourages a judge to pick winners and losers based on that judge's personal or political beliefs is contrary to the American tradition of justice.

That is why we should be very cautious in deferring to President Obama's choices for the judicial branch. He set that standard; we did not. We should carefully evaluate these nominees' ability to be faithful to the Constitution. Nominees should not pledge allegiance to the goals of a particular political party or outside interest groups that hope to implement their political and social agendas from the bench rather than getting it done through the legislative branch.

When she was nominated to the Supreme Court, meaning Ms. Elena Kagan, Vice President Biden's Chief of Staff, Ron Klain, assured the leftwing groups that they had nothing to worry about in Elena Kagan because she is, in his words, ``clearly a legal progressive.'' So it is pretty safe to say that President Obama was true to his promise to pick an individual who likely would rule in accordance with these groups' wishes. A Justice should not be a member of someone's team working to achieve a preferred policy result on the Supreme Court. The only team a Justice of the Supreme Court should be on is the team of the Constitution and the law.

I have said on prior occasions that I do not believe judicial experience is an absolute prerequisite for serving as a judge. There have been dozens of people, maybe close to 40, who have been appointed to the Supreme Court who have not had that experience. Solicitor General Kagan, however, has no judicial experience and has very limited experience as a practicing attorney.

Unlike with a judge or even a practicing lawyer, we do not have any concrete examples of her judicial method in action. Thus, the Senate's job of advice and consent is much more difficult. We do not have any clear substantive evidence to demonstrate Solicitor General Kagan's ability to transition from a legal academic and political operative to a fair and impartial jurist.

Solicitor General Kagan's record and her Judiciary Committee testimony failed to persuade me that she would be capable of making this crucial transformation. Her experience has primarily been in politics and academia. As has been pointed out, working in politics does not disqualify an individual from being a Justice. However, what does disqualify an individual is an inability to put politics aside in order to rule based upon the Constitution and the law. In my opinion, General Kagan did not demonstrate that she could do that during her committee testimony. Moreover, throughout her hearings, she refused to provide us with details on her views on constitutional issues.

It was very unfortunate we were unable to elicit forthcoming answers to many of our questions in an attempt to assess her ability to wear the judicial robe. She was not forthright in discussing her views on basic principles of constitutional law, her opinions of important Supreme Court cases or personal beliefs on a number of legal issues. This was extremely disappointing.

Candid answers to our questions were essential for us as Senators to be able to ascertain whether she possesses the proper judicial philosophy for the Supreme Court. In fact, her unwillingness to directly answer questions about her judicial philosophy indicated a political approach throughout the hearing. I was left with no evidence that General Kagan would not advance her own political ideas if she is confirmed to the Federal bench.

General Kagan's refusal to engage in meaningful discussion with us was particularly disappointing because of her position in a 1995 Law Review Article entitled ``Confirmation Messes, Old and New.'' In that article she wrote--and she was then Chicago Law Professor Kagan--that it was imperative that the Senate ask about, and the Supreme Court nominees discuss, their judicial philosophy and substantive views on issues of constitutional law. Specifically, then-Professor Kagan wrote:

When the Senate ceases to engage nominees in meaningful

discussion of legal issues, the confirmation process takes on

an air of vacuity and farce, and the Senate becomes incapable

of either properly evaluating nominees or appropriately

educating the public.

That is in Professor Kagan's own words.

Bottom line, General Kagan did not live up to her own standard. She was nonresponsive to many of our questions. She backed away from prior positions and statements. She refused to discuss the judicial philosophy of sitting judges.

When asked about her opinions on constitutional issues or Supreme Court

decisions, she either declined to answer or engaged in an overview of the status of the law rather than a discussion of her own personal views. Because of her shallow record on the issues, this approach to the hearing was extremely troubling.

At her confirmation hearing, General Kagan told us to ``look to [her] whole life for indications of what kind of judge or Justice [she] would be.'' Well, General Kagan's record has not been a model of impartiality, as we looked at her record and her life just as she asked us to. There is no question that throughout her career she has shown a strong commitment to far-left ideological beliefs. Solicitor General Kagan's upbringing steeped her in deeply held liberal principles that at one point she stated she had ``retained . . . fairly intact to this date.'' Her jobs have generally never required her to put aside her political beliefs, and she has never seen fit to do so. Her first instinct and the instincts she has relied upon throughout her career are her liberal, progressive political instincts put to work for liberal, progressive political goals. I have no evidence that if Solicitor General Kagan were confirmed to the Supreme Court she would change her political ways or check her political instincts or goals at the courthouse door.

In fact, General Kagan gained her legal expertise by working in politics. She started out by working on Congresswoman Liz Holtzman's Senate campaign, hoping for, in her words, a ``more leftist left.'' She also worked as a volunteer in Michael Dukakis's Presidential run. The Dukakis campaign wisely put her to work at a task that is political to the core--opposition research. There she found a place where she was encouraged to use her political savvy and make decisions based upon her liberal, progressive ideology.

Moreover, while clerking for Justice Marshall, General Kagan's liberal personal convictions--rather than the Constitution and the law--seemed to be her ultimate guide when analyzing cases. General Kagan consistently relied on her political instincts when advising Justice Marshall, channeling and ultimately completely embracing his philosophy of ``do[ing] what you think is right and let[ting] the law catch up.'' Her Marshall memos clearly indicate a liberal and outcome- based approach to her legal analysis.

In several of her memos, it is apparent she had a difficult time separating her deeply held liberal views and political beliefs from the law. For example, in one case she advised Justice Marshall to deny certiorari because the Court might make ``some very bad law on abortion.'' In another case, she was ``not sympathetic'' that an individual's constitutional right to keep and bear arms had been violated. In essence, her judicial philosophy was a very political one.

During her tenure at the White House, Solicitor General Kagan worked on a number of highly controversial issues, such as abortion, gun rights, campaign finance reform, and the Whitewater and Paula Jones scandals. She herself described her work for President Clinton as being primarily political in nature.

In a 2007 speech, she said:

During most of the time I spent at the White House, I did

not serve as an attorney, I was instead a policy adviser. . .

. It was part of my job not to give legal advice, but to

choose when and how to ask for it.

Her documents from the Clinton Library prove just that. She forcefully promoted far-left positions and offered analyses and recommendations that were far more political than legal in nature. For example, during the Clinton administration, General Kagan was instrumental in leading the fight to keep partial-birth abortion on the books. Documents show that she boldly inserted her own political beliefs in the place of science. Specifically, she redrafted language for a nonpartisan medical group to override scientific findings against partial-birth abortion in favor of her own extreme views. Despite the lack of scientific studies showing that partial-birth abortion was never necessary and her own knowledge that ``there aren't many [cases] where use of the partial-birth abortion is the least risky, let alone the `necessary,' approach,'' Solicitor General Kagan had no problem intervening with the American College of Obstetricians and Gynecologists to change their own policy statement.

After her intervention, this doctor group's statement no longer accurately reflected the medically supported position of the obstetricians and gynecologists. Rather, the group's statement now said that partial-birth abortions should be available if the procedure might affect the mother's physical, emotional or psychological well-being. The reality is that General Kagan's change was not a mere clarification. It was, in fact, a complete reversal of the medical community's original statement.

Other documents show that Solicitor General Kagan also lobbied the American Medical Association to change a statement it had issued on partial-birth abortion. These documents demonstrated her ``willingness to manipulate medical science to fit the Democratic Party's political agenda on a hot button issue of abortion.''

During her hearing, General Kagan refused to admit she participated in the decisionmaking process of what language the gynecologists would use in their statement on partial-birth abortion. The documents present a very different picture. Although she stated that there was ``no way she could have intervened with the ACOG,'' she did exactly that. Instead of responding to a legitimate inquiry in an open and honest manner, she deflected the question and gave, at best, nonresponsive answers.

In addition, Solicitor General Kagan worked on a number of initiatives to undermine second amendment rights. She was front and center of the Clinton administration's anti-second amendment agenda. She collaborated closely with Jose Cerda on the administration's plan to ban guns by ``taking the law and bending it as far as we can to capture a whole new class of guns.'' After the Supreme Court in Printz v. U.S. found parts of the Brady antigun law to be unconstitutional, she endeavored to find legislative and executive branch responses to deny citizens' second amendment rights.

Even in academia, Solicitor General Kagan took steps and positions that were based on her strongly held personal beliefs rather than an evenhanded reading of the law. As dean of Harvard Law School, she actively defied Federal law by banning military recruiters from campus while the Nation was at war. Prior to her appointment as dean, the Department of Defense had made clear to Harvard that the school's previous recruitment policy was not in compliance with the Solomon Amendment, so Harvard did what Harvard should have done: changed its policy to abide by the Federal law. But when the Third Circuit, which does not include Massachusetts, ruled on the issue, then-Dean Kagan immediately reinstituted the policy barring the military from the Harvard campus. She took this position because she personally believed the military's longstanding policy of don't ask, don't tell, in her words, was ``a profound wrong--a moral injustice of the first order.'' She claimed her policy was equal treatment. However, the Air Force believed the policy was playing games with its ability to recruit. The Army believed the policy resulted in it being stonewalled. Then-Dean Kagan was entitled to her opinion, but--no different than anybody else in this country--she was not free to ignore the law. The Solomon Amendment required that military recruiters be allowed equal access to the university as any other recruiter.

The bottom line is that then-Dean Kagan refused to follow the law and instead interpreted that law in accordance with her personal beliefs. The Supreme Court unanimously rejected her legal position on the Solomon Amendment and upheld our military.

I am concerned that Solicitor General Kagan will continue to use her personal politics and ideology to drive her legal philosophy if she is confirmed to the Supreme Court, particularly since her record shows she has worked to bend the law to fit her political wishes.

Further, I am concerned with the praise Solicitor General Kagan has lavished on liberal jurors who promote activist philosophies such as those of Israeli Judge Aharon Barak. Judge Barak is a major proponent of judicial activism who believes judges should ``bridge the gap between law and society.'' He also went on to say that we

ought to use international law to advance a social and political agenda on the bench.

At a Harvard law event attended by then-Dean Kagan, Judge Barak noted with approval cases in which ``a judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag bearer of new social consensus.'' When I asked General Kagan if she endorsed such an activist judicial philosophy, she replied that Judge Barak's philosophy was something ``so different from any that we would use or want to use in the United States.'' But that contradicts her previous statement about Judge Barak that he is a ``great, great judge'' who ``presided over the development of one of the most principled legal systems in the world.'' I am not able to ascertain if Solicitor General Kagan agrees with Judge Barak or if she rebukes his positions, so I am left to believe she endorses the judicial method of what she calls her ``judicial hero'' and his views on judicial restraint or lack thereof. I cannot support a Supreme Court nominee whose judicial philosophy endorses judicial activism as opposed to judicial restraint.

With respect to the second amendment, General Kagan testified that the Heller and McDonald cases were binding precedent for the lower courts and due all the respect of precedent. However, I worry that, if confirmed, her deeply engrained personal belief will cause her to overturn this precedent because she does not personally agree with those decisions or the constitutional right to bear arms. At the hearing, Solicitor General Kagan was unwilling to discuss her personal views on the second amendment or whether she believes the right to bear arms is what it is today--a fundamental right. When I asked her about her thoughts on the issue, she simply replied that she ``had never thought about it before.'' I also asked her whether she believed self- defense was at the core of the second amendment. She could only respond: ``I have never had the occasion to look into the history of the matter.'' As a former constitutional law professor both at Chicago and Harvard, Solicitor General Kagan's response ought to be troubling to anybody who heard it.

A key theme in the U.S. Constitution reflects the important mandate of the Declaration of Independence. It is the recognition that the ultimate authority of a legitimate government depends on the consent of a free people, the ``consent of the governed.'' As Thomas Jefferson wrote:

We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their Creator with

certain unalienable Rights, that among these are Life,

Liberty, and the pursuit of Happiness. That to secure these

rights, Governments are instituted among Men deriving their

just powers from the consent of the governed.

As former Attorney General Edwin Meese explains:

That all men are created equal means that they are equally

endowed with unalienable rights. . . . Fundamental rights

exist by nature, prior to government and conventional laws.

It is because these individual rights are left unsecured that

governments are instituted among men.

So I am concerned that Elena Kagan refused to agree with my comments about the Declaration of Independence--that there are such things as inalienable rights and if government does not give, government cannot take away.

Similarly, Senator Coburn asked General Kagan if she agreed with William Blackstone's assessment about the right to bear arms and use those arms in self-defense. She replied:

I don't have a view on what are natural rights, independent

of the Constitution.

If you don't have a view about rights that existed before the Constitution was ever written, do you have the knowledge to be a Supreme Court Justice?

So this is concerning to me because, as one commentator stated:

A legal scholar with no take on such a fundamental

constitutional topic [of which individual rights qualify as

natural or inalien in character] seems at best disingenuous

and at worst, frightening. How can one effectively analyze

and apply the Constitution without a firm grip on what basic

freedoms underlie our founding documents and national social

compact? How can one effectively understand the original

intent of the Framers without any opinion on the essential

place of certain liberties within the American legal

framework?

Bottom line: The fact that General Kagan refused to answer our questions about her personal opinions on the right to bear arms leads me to conclude that she does not believe people have a natural right of self-preservation, unrelated to the Constitution.

I am concerned about Solicitor General Kagan's views on our constitutional right to bear arms not only because of her anti-second amendment work during the Clinton administration but also in light of her memo in the Sandidge case when she clerked for Justice Marshall. In her memo, she summarily dismissed the petitioner's contention that the District of Columbia's firearm statute violated his second amendment right to keep and bear arms. Instead of providing a serious basis for her recommendation to deny the certiorari, her entire legal analysis of this fundamental right consisted of one sentence: ``I am not sympathetic.''

A further basis for my concerns about whether she will protect or undermine the second amendment if she is confirmed is the decision of the Office of Solicitor General under her leadership not to even submit a brief in the second amendment McDonald case. Solicitor General Kagan's record clearly shows she is a supporter of restrictive gun laws and has worked on numerous initiatives to undercut second amendment fundamental rights. So, not surprisingly, as Solicitor General, she could not find a compelling Federal interest for the United States to submit a brief in a case that dealt with fundamental rights and the second amendment of the Constitution. This was a case that everyone knew would have far-reaching effects. It is apparent that political calculations and personal beliefs played a role in Solicitor General Kagan's decision not to file a brief in this landmark case to ensure that constitutional rights of American citizens were protected before the Supreme Court.

With respect to the Constitution's commerce clause, Solicitor General Kagan was asked whether she believed there are any limits to the power of the Federal Government over the individual rights of American citizens.

Unfortunately, her response didn't assure me that, if confirmed, she would ensure that any law Congress creates does not infringe on the constitutional rights of our citizens. Specifically, Senator Coburn asked her whether she believed a law requiring individuals to eat three vegetables and three fruits a day violated the commerce clause. Though pressed on this and other lines of questioning on the commerce clause, she was unwilling to comment on what would represent appropriate limits on Federal power under the Constitution--and probably the commerce clause has been used more than any specific power of Congress for greater control of the Federal Government over State and local governments or over the economy and probably depriving individual rights in the process.

I am not sure Solicitor General Kagan understands that ours--meaning our government--is a limited government and that the restraints on the Federal Government's power are provided by the Constitution and the concept of federalism upon which our Nation is founded. The powers of the Federal Government are explicitly enumerated in article I, section 8 of the Constitution. Further, the 10th amendment provides that the powers not expressly given to the Federal Government in the Constitution are reserved to the States.

The Founding Fathers envisioned that our government would be constitutionally limited in protecting the fundamental rights of life, liberty, and property and that the laws and policies created by the government would be subject to the limits established by the Constitution. As James Madison wrote in Federalist No. 45, ``The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State government are numerous and indefinite.''

I am not convinced the Solicitor General appreciates that there are express limits the Constitution places on the ability of Congress to pass laws. I am not persuaded by her nonanswers to our commerce clause questions that she won't be a rubberstamp for unconstitutional laws that threaten an individual's personal freedoms.

With respect to the institution of marriage, I am concerned with Solicitor General Kagan's ability to disregard her own personal beliefs in order to defend the Defense of Marriage Act. Under her supervision, the United States filed a brief stating that ``the Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.'' At the hearing, she refused to say whether this was an appropriate statement to make considering that it is the duty of the Solicitor General to vigorously defend the laws of the United States. How are we to believe she will uphold a law as a Supreme Court Justice when she disagrees with that law? When she was tasked as the government's lawyer to vigorously defend the law, clearly she put her personal politics and beliefs first. It is obvious that supporting the repeal of a law is not vigorously defending that law.

There are other occasions where General Kagan's personal beliefs rather than the law appear to have guided her decisions as Solicitor General. For example, with respect to her handling of the lawsuits attempting to overturn the don't ask, don't tell policy, she didn't file an appeal in the Witt v. Department of the Air Force case to uphold the constitutionality of the law, even though there was a split in the circuit courts on this issue. I have already discussed Solicitor General Kagan's actions at Harvard Law and how she thwarted our military's recruitment efforts because of her deeply held views against the don't ask, don't tell policy. I cannot imagine that her personal opinions on this matter did not play a role in decisionmaking at the Solicitor General's Office with respect to the Witt case.

I am also concerned about Solicitor General Kagan's views on property rights. The fifth amendment states that the government ``shall not take private property rights for public use without just compensation.'' In 2004, the Supreme Court took an expansive view of the words ``public use'' in Kelo v. City of New London, allowing the government to take private property so that it could be transferred to another person promoting economic development. At the hearing, Solicitor General Kagan refused to comment on whether she believed the Court had correctly interpreted the text of the Constitution in the Kelo case. She also did not elaborate on any limits to the government's ability to take private property. I am concerned that she does not agree that the ruling in Kelo undermines citizens' property rights contained in the Constitution.

Solicitor General Kagan's view of the role of international law is disturbing. At the hearing, she stated that a Justice could look to international law to find ``good ideas'' when interpreting the U.S. Constitution and our laws. However, when I pressed her on which countries a Justice should look to in order to find those ``good ideas,'' she refused to answer.

I am unaware of how international law can help us better understand our great Constitution. That is because international law should not be used to interpret our Constitution. When we begin to look to international law to interpret our own Constitution, we are at a point then where the meaning of the U.S. Constitution is no longer determined by the consent of the governed.

The importance Solicitor General Kagan places on international law is made abundantly clear by her actions as dean of Harvard, when she implemented a curriculum mandating that all first-year law students take international law. She said that the first year of law school is the ``foundation of legal education,'' forming lawyers' ``sense of what the law is, its scopes, its limits, and its possibilities.'' Yet, U.S. constitutional law, the class that teaches the founding document of our legal system--a class that almost every other law school in the country believes first-year students should have--is not a mandatory first-year course at Harvard Law.

I don't disagree that it is helpful for students to understand international law, but I question why it should be a first-year requirement and thus mandatory to graduate--especially when U.S. constitutional law is not required to graduate from Harvard Law School at all--yes, hard to believe; a student can graduate from Harvard Law without having to take a single constitutional law class.

When General Kagan was asked about this, she answered:

Constitutional law should primarily be kept in the upper

years, where students can deal with it in a much more

sophisticated and in-depth way.

This may seem reasonable, but it does not address why a student is never required to take a constitutional law class to graduate. Because, as dean, she never saw the need to make constitutional law a requirement to graduate, then I am led to believe Solicitor General Kagan believes international law is more important than U.S. constitutional law. This is remarkable--or maybe I should say it is shocking--considering that the Constitution of the United States is our most fundamental law.

I am deeply concerned then that if confirmed to the Supreme Court, General Kagan will put her own strongly held personal views above that of the Constitution and the law.

Throughout her life, Solicitor General Kagan's background has allowed her to work without having to check her political and ideological views. Her experiences throughout her life have allowed her to indulge, reinforce, and ultimately submit her deeply ingrained liberal beliefs. In my opinion, her record strongly suggests she will not be able to act in an unbiased manner as a Justice.

Her answers and evasions to our questions at the Judiciary Committee hearing also raise serious concern about her ability to set aside her personal political goals when interpreting the Constitution. I am convinced that once confirmed to the Court, her ``finely tuned political antenna'' and her ``political heart'' will drive her judicial method, rather than judicial restraint.

At the hearing, General Kagan tried to distance herself from her Oxford thesis, where she embraced judicial activism. In that thesis, she wrote that ``it is not necessarily wrong or invalid'' for judges to try to ``mold and steer the law in order to promote certain ethical values and achieve certain social ends.'' Our great American tradition and the U.S. Constitution soundly reject the notion of judges overstepping their constitutional role by implementing their personal, political, and social goals from the bench. I am not convinced that, if confirmed, General Kagan will actually be able to resist the temptation to do that. That is because I believe her judicial philosophy is really nothing more than a political philosophy. This being the case, I am not at all convinced she will be able to apply the law impartially and not be a rubberstamp for the President or the leftwing interest groups' political and social agenda.

Solicitor General Kagan acknowledged that it is ``difficult to take off the advocate's hat and put on the judge's hat.'' Yet she could not show us that she had the ability to make the transition from an academic and political operative to what we believe ought to be a fair and impartial jurist. Her testimony did not disprove her far-left record or demonstrate she would not let her political views dominate her approach to the law. I am not persuaded Solicitor General Kagan will be able to overcome that difficulty and transition into an unbiased judge, so I will vote no on her confirmation.

I yield the floor.

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

Mr. President, last week there was a news conference by a group of outside people who attacked ethanol, and then the senior Senator from Arizona gave a speech on that subject last week. I told the senior Senator that I was going to have something to say about ethanol this week; I didn't tell the news conference people that I was. So it seems to be that time of year once again. Without fail, every few months or so, we have big oil on the one hand and big food interest groups on the other hand start a misinformation campaign in an effort to denigrate the U.S. biofuels producers. In other words, they are attacking renewable fuels.

Last week, almost as if on cue, a group opposed to domestic efforts to reduce our dependence on foreign oil began their usual song and dance. A

press conference led by the Grocery Manufacturers Association and other special interest groups was held to malign the benefits of homegrown renewable fuels. Don't forget that this is the same group of folks who, a few years ago, waged a high-priced, inside-the-beltway smear campaign against ethanol for allegedly leading to higher food prices. At that time, the price of corn was going up because there was speculation in commodities, the price of oil was going up, and so the grocery manufacturers decided: We have to have an excuse to increase the price of food--20 percent, roughly. Well, you know what, the price of grain came down, but the price of food has not come down. So I think it was simply a diversionary tactic to get away with what they maybe would not have gotten away with with the consumers.

Well, I think 2 years ago, maybe 3 years ago, that myth was roundly dispelled, but I want to keep reminding people that there was that campaign out there. Economists proved what Iowa farmers and our Nation's farmers knew to be true: The higher cost of corn was responsible for just a tiny fraction of the increase in food prices. So while food manufacturers wanted consumers to believe that corn ethanol was doubling or tripling their grocery prices, nonbiased observers knew that the corn input costs were just pennies of the retail price of food.

However, with dozens of multibillion-dollar corporations and profits to protect, it is not surprising to see this group--or maybe I better say these groups--attack our country's farmers and ranchers, who are working to produce our Nation's food, our Nation's feed, our Nation's fiber, and now, with renewable fuels, producing fuel that you and I burn in our car tanks almost daily. And farmers can do that. They can do all of that. They are doing it right now. This year, we will have the largest corn crop this country has ever produced, and doing it on 3 million less acres of cropland.

So these same groups are at it again. They see new opportunities to undermine our domestic biofuels industry, and they have a bottom line to look out for and pockets to line. They are now arguing that our Nation cannot afford government policies to foster the growth of renewable energy. In other words, they are arguing that the cost of energy independence is too high and we cannot afford it. They would prefer that we increase our reliance on fossil fuels and imported crude oil. The unfortunate outcome of such attacks, however, is that less informed individuals begin to believe this misinformation. So it is time that we review the true cost of imported fossil fuels.

In 2008, Americans sent over $450 billion to foreign countries to satisfy our demand for oil. At $80 a barrel--and I suppose oil is, I think, roughly $75 now, but if it is $80 a barrel, we will send nearly $350 billion overseas, out of this country, this year for oil.

We rely on foreign oil to meet 60 percent of our oil demand. But do not forget, much of the world's oil reserves are located in the volatile and very unpredictable Middle East.

According to the Energy Information Administration, oil price shocks and price manipulation by the Organization of Petroleum Exporting Countries cost our economy about $1.9 trillion between 2004 and 2008.

Our dependence on imported oil accounts for about one-half of our trade deficit--one commodity--a very important commodity for us, but it accounts for one-half of our trade deficit.

The Federal Government's support for homegrown ethanol equals less than 2 percent--just less than 2 percent of the money we will send to Canada, Saudi Arabia, Mexico, Venezuela, Nigeria, and other countries where we import oil.

The domestic ethanol industry supports 400,000 green jobs in the United States. Last year, ethanol contributed over $50 billion to our gross domestic product. It contributed $8.4 billion in tax revenue to the Federal Government. The incentives we provide for ethanol production lead to a surplus of tax revenue for the Federal Treasury. So which is the better bargain--being dependent on foreign countries for 60 percent of our energy needs at a cost of $350 billion or keeping this money at home, creating green jobs and increasing our national and economic security? I believe the choice is very obvious.

Up to this point, I have only considered the economic cost. There are other costs. I will put up a chart with one of the environmental costs. This chart depicts a small example of the environmental cost of our dependence upon foreign oil. The first photo, the lower photo, is the one we are all too familiar with, the explosion and the ensuing oilspill at BP's Deepwater Horizon oil rig. The other photo might look like Mars or the Moon, but it depicts land in Canada where oil is being extracted from tar sands. The fact is, fossil fuels are getting more expensive to extract and are likely to come at greater environmental cost. That is the negative aspect, environmentally, beyond the economic issues I have discussed.

We have an alternative. That alternative, which the next chart shows, is homegrown, renewable biofuels. The chart shows the cornfield on the left, and where we go to the gasoline station to get the renewable fuels to power the car on the right. Today, ethanol accounts for 10 percent of our transportation fuels. No other fuel alternative comes close to ethanol's contribution to a clean environment and less dependence on foreign energy and less dependence upon fossil fuels. Domestically produced ethanol contributes more to the fuel supply than all imports except Canada. More ethanol means less greenhouse gas emissions. A University of Nebraska study found that ethanol reduces direct greenhouse gas emissions by 48 to 59 percent compared to gasoline. Ethanol production continues to improve, and increasing crop yields means we are producing more fuel from less grain on fewer acres.

Let me repeat something I said earlier: Probably 13 billion bushels of corn, the largest crop ever produced in the United States, and we have 3 million less acres in crop production this year compared to a year ago. Ethanol producers are reducing energy and water usage. So the production of ethanol is becoming more efficient.

Finally, it is important we consider the national security cost of our dependence upon foreign oil. I will put up a chart about the Middle East. The Middle East accounts for 20 percent of U.S. oil imports; 17 billion barrels of oil are shipped each day through the single most important shipping chokepoint; that is, the Straits of Hormuz out of the Persian Gulf. In fact, the military people say that is one of the serious problems in dealing with Iran, if they decided to sink ships there, what they could do economically to the rest of the world and what they could do national security wise to the rest of the world. They have threatened that. They have never done it, probably because their livelihood depends on it as much as the rest of the world. But it is still one of those chokepoints. On average, 15 crude oil tankers pass through the Straits of Hormuz every day, with much of that oil headed to the United States.

We have two other large oil shipping chokepoints; one at the Suez Canal and the other one at the Gulf of Aden at the bottom of the map. To determine the true cost of America's dependence on foreign oil, it is important to understand the cost to the taxpayers of defending and protecting these shipping lanes. A New York Times editorial, in the late 1990s, calculated the true cost of a gallon of gas, including the military cost of making sure it can get from the oil wells of the Middle East to the United States at $5 a gallon. Last week, I questioned four-star retired U.S. Army GEN Wesley Clark on the true cost of gasoline, when he appeared before the Committee on Agriculture. He estimated it to be around $7 to $8 a gallon today, 10 years later than the New York Times editorial.

Homegrown ethanol produced in the Midwest--I suppose anyplace in the United States, but most of the corn is produced in the Midwest--doesn't need a military escort to the gas stations on the east or west coasts such as oil from the Middle East does. Homegrown ethanol does not need the Department of Defense to protect its transport from our farm fields to consumers. Again, our Nation's investment in ethanol is a real bargain. It is increasing our economic and national security. That is why it is important we continue to support this industry.

Some have claimed it is a mature industry and it no longer needs our help.

This statement ignores the fact that ethanol is competing with a century-old industry dominated by big oil, which itself has received billions of dollars from the taxpayers over many decades and for decades longer than the ethanol industry.

Getting back to the detractors I referred to, most often the people who held the press conference a week ago today denigrating oil, these ethanol detractors continue to undermine these efforts. One organization estimates that a lapse in the tax incentive for ethanol would shut down 40 percent of the industry and result in the loss of 112,000 green jobs. That is 112,000 jobs that rely on the production of ethanol. We can't allow ethanol to follow the path of biodiesel which has essentially shut down because this Congress failed to extend that tax incentive that ran out last December 31. While President Obama spoke in his address on Saturday about investing in homegrown clean energy, 45,000 biodiesel jobs have vanished because of the lapse of the biodiesel tax credit. It is inexcusable.

President Obama touted the goal of creating 800,000 clean energy jobs by 2012. Why not take action today to extend the lapsed biodiesel tax credit and immediately put 45,000 people back to work? The same thing could happen to the ethanol industry, if we fail to extend the tax incentive which runs out December 31 this year. If we undermine ethanol, we are putting out the welcoming mat for dictators such as Hugo Chavez. In fact, last night on the television, it said Chavez is talking about maybe not selling oil to the United States.

Then, last week, as I referred to in my speech--and I told the Senator from Arizona I was going to speak on ethanol this week--we had the senior Senator from Arizona question the wisdom of domestic renewable fuel incentives. He was quoted as saying:

Maybe we will stop this damned foolishness called ethanol

subsidies. It's one of the greatest rip-offs that takes place

on the American taxpayers.

So to those who would do away with our domestic ethanol production, I have one question: Which country should we look to for 10 billion gallons of fuel? Would we want to go to Saudi Arabia? Would we want to go to Venezuela? Would we want to go to Nigeria? Whom would we rather support with our hard-earned money? I want to ask this question: Would we rather support Hugo Chavez or the American farmer? Would we rather support Chavez, which is an insane thing to do? Sending money to someone who buys guns to fight us is insanity. In this chart we have these two people on the left, Chavez and the President of Iran. We have the farmer of America on the right. Where would we want to get our energy from? Whom would we want to rely on?

It is pretty easy to answer that question. We shouldn't be reducing our use of renewable fuels. We should be increasing it. We should produce all we can from corn and from the biomass that is left over from corn and from grasses and from wood waste. We should increase the use of biofuels by mandating the production of flex-fuel vehicles and increasing the availability of blender pumps.

Ethanol is here today. It is creating a cleaner environment. It is keeping money at home in our economy and increasing our national security. Undermining the only renewable fuel that has the proven ability to accomplish these goals would be insanity, a little bit like the two people we see on the left but not the person on the right. The person on the right is the backbone of the American economy because nothing has contributed to the national wealth except what comes from the national resources of the country.

Bottom line: Ethanol is good for America, but let's segment that. It is good for agriculture. It is good for good-paying jobs in small town America, where these renewable plants are located. It is good for the environment. It is good for lessening our dependence on foreign oil, which helps our trade balance, which helps our national security. There isn't another issue Members can come before the Congress with that has no negatives and all positives. In other words, everything about ethanol is good, good, good.

I yield the floor.

Mr. President, I rise to pay tribute to a brave and patriotic son of Iowa who gave his life for his country, CPT David Anthony Wisniewski. He graduated from Woodbury Central High School in Moville, IA, before attending the Air Force Academy. It had been his dream to be an Air Force pilot since visiting Offutt Air Force Base as a young child and he died doing what he loved. By all accounts, David Wisniewski was a remarkable man and his numerous accomplishments include the saving of many lives during his several tours of duty in support of the global war on terrorism. In reference to the reason for his service, I understand that he would end letters to his parents with the reminder that, ``I do this so you can sleep safe at night.'' That is an excellent reminder for all of us to never take for granted the tremendous cost of our freedom. I find that words fail me in trying to describe the debt of gratitude we owe to the courageous and selfless Americans like Captain Wisniewski. We can never begin to repay the debt, but we can honor it by honoring David's memory and by fully appreciating our way of life and the sacrifices made to preserve it. Of course, his loss will be felt very deeply by his parents, Chet and Beverly Wisniewski, and all his family and friends. My prayers go out to them in this difficult time. They are no doubt very proud of their son, and all Iowans can be proud to call him one of our own.

Mr. President, I have long worked for the continued viability of rural low-volume hospitals so that Medicare beneficiaries living in rural areas in Iowa and elsewhere in the country will continue to have needed access to care.

Today, I want to discuss another concern, one regarding low-volume dialysis clinics in rural areas and the kidney dialysis patients they serve.

Congress enacted a new end-stage renal dialysis, ESRD, bundled payment system in the Medicare Improvements for Patients and Providers Act of 2008 that takes effect next year.

I support the establishment of a fully bundled payment system for renal dialysis services.

It is intended to improve payments for ESRD services and to ensure access

to critical renal dialysis services, including those in rural areas.

It will also improve the quality of care for dialysis patients by requiring ESRD providers to meet certain standards through a new quality incentive program that is established for ESRD providers.

It establishes a permanent annual update for ESRD providers.

It also provides for payment adjustments in certain circumstances, such as payments for low-volume facilities and for dialysis facilities and providers in rural areas that need additional resources.

Last fall, the Centers for Medicare and Medicaid Services, CMS, issued a proposed rule to implement the new ESRD bundled payment system. That rule will be finalized later this year.

I am concerned that overall some of the proposed adjustments that reduce payments for dialysis treatment may be unduly low.

But today I want to focus on one issue in particular--the adjustment that CMS has proposed for low-volume facilities.

The legislation that established this new bundled payment system specifically requires CMS to adopt a payment adjustment of not less than 10 percent for low-volume facilities to ensure their continued viability with other facilities.

The Secretary was given the discretion to define low-volume facilities.

Unfortunately, CMS has proposed a very restrictive definition and set of criteria to qualify as a low-volume facility so the payment adjustment would only apply to facilities that furnish fewer than 3,000 treatments a year.

According to CMS, ``the low-volume adjustment should encourage small ESRD facilities to continue to provide access to care to an ESRD patient population where providing that care would otherwise be problematic.''

CMS also notes that low-volume facilities have substantially higher treatment costs.

Previously, CMS considered an ESRD facility with less than 5,000 treatments a year to be small.

But now CMS is proposing to limit eligible ESRD facilities to those with less than 3,000 treatments a year and requiring this limit to be met for 3 years preceding the payment year, along with certain ownership restrictions.

CMS has not proposed any geographic restriction that would limit the low-volume payment adjustment to dialysis facilities in rural areas.

Medicare reimbursement is already problematic for small dialysis organizations because they operate on very low Medicare margins.

According to the March 2010 report of the Medicare Payment Advisory Commission, MedPAC, large dialysis organizations have Medicare margins of 4.0 percent compared to other dialysis facilities with Medicare margins of only 1.6 percent.

MedPAC also found that rural dialysis providers have Medicare margins that average -0.3 percent compared to urban providers with positive margins of 3.9 percent, and they expressed concern that the gap in rural and urban margins has widened.

They project that Medicare margins will fall from an aggregate 3.2 percent margin in 2008 to an aggregate 2.5 percent in 2010.

If corresponding declines are seen in rural areas, negative margins for rural facilities will increase, and low-volume rural facilities will be hit even harder.

And this projection does not take into account any of the additional reductions that CMS has proposed as part of the new bundled payment system even though these reductions would have a significant adverse impact on small dialysis facilities.

Should the proposed restrictions on low-volume facilities be finalized, the continued viability of these small dialysis facilities will be questionable.

This will be especially true in rural areas, and beneficiary access to these critical dialysis services will be severely jeopardized.

Small rural dialysis clinics provide beneficiaries with end-stage- renal disease access to critically-needed dialysis services in medically underserved areas.

In some rural areas, a single clinic may be the only facility that furnishes this life-sustaining care.

Should the unduly restrictive treatment limit for low-volume facilities be finalized as proposed, small rural facilities with slightly higher treatment volumes will lose these essential low-volume payments.

Since rural dialysis facilities already face negative Medicare margins, many are likely to close, further limiting access to crucial dialysis services that these kidney patients depend upon to survive.

New facilities would not be eligible for low-volume payments until their fourth year of operation under the proposed rule, making it unlikely that other facilities would take the place of those that had closed.

The prospect of Medicare beneficiaries' losing access to these life- sustaining services is simply unacceptable.

I, therefore, urge CMS to modify the proposed restrictions for low- volume adjustments by raising the treatment limit to the existing 5,000 treatment definition for small rural dialysis facilities.

One of my constituents, Laura Beyer, RN, BSN, is the manager of dialysis at Pella Regional Health Center, a critical access hospital in rural Iowa. She has written an editorial about this problem and the financial crises that small outpatient dialysis facilities, such as Pella Regional Health Center, are facing. Her editorial will be appearing in Nephrology News in July.

I ask unanimous consent to have printed in the Record this editorial.

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

Madam President, I wish to address my colleagues for a few minutes about the pending legislation that was recently introduced by my chairman and friend, Senator Baucus of Montana. This bill is targeted at creating jobs by providing targeted relief to our Nation's job engine, and that happens to be small businesses.

Our Nation is currently facing challenging economic times, as we have now for about 20 months. While there have been some signs of improvement, such as the recent growth of our gross domestic product, job losses continue to mount and many hard-working Americans are struggling to make ends meet. According to our Bureau of Labor Statistics, around 8 million jobs have been lost since our economy officially slipped into recession in December of 2007. The unemployment rate is currently 9.7 percent, which is simply an unacceptable level.

Small businesses in particular have been hit hard, with most job losses being attributed to businesses with fewer than 500 employees. According to the ADP national employment data, from December of 2007 through May of this year, small businesses with fewer than 500 employees saw employment decline by 6.4 million, while businesses with 500 or more employees saw employment decline by 1.66 million. According to this data, small businesses--those with fewer than 500 employees-- accounted, then, for nearly 80 percent of the decline in employment during that period of December 2007 through May 2010.

The lack of job creation continues despite aggressive actions taken at the Federal level to stabilize the economy. This includes the enactment of the TARP bill, also the $800 billion stimulus bill, and more recently a bill we termed the ``HIRE Act.'' However, these bills were all missing a critical ingredient for spurring job creation; that is, substantial tax relief targeted at small businesses. The reason for that is most small businesses hire or do not hire according to what their cash flow is. When taxes are high, there is less cash flow or when tax policy is in a state of flux, as right now--what is it going to be this year because of sunsets this year--that uncertainty causes businesses not to be as aggressive as they normally might be in hiring.

While President Obama and my Democratic colleagues agree that small businesses create 70 percent of the jobs in our economy, less than one- half of 1 percent of the stimulus bill was tax relief for small businesses--in other words, not putting the money where it would do the most good.

The HIRE Act, which the Democratic leadership sold as a so-called jobs bill, did not fare much better in providing tax relief to our Nation's job engine. There was only one provision directed solely to small business tax relief. That was a provision I supported that increased expensing equipment purchased by small businesses. But it is a very small provision, and it only gave small businesses what they have already been getting for the last couple of years. That provision was only $35 million out of a $21 billion bill.

With the recent introduction of the small business tax relief bill, it looks as if this body is finally starting to get serious about tackling unemployment through a true jobs bill, compared to previous stimulus or jobs bills promoted by the majority.

This small business bill has a rather modest cost of about $12 billion to $15 billion. It is targeted at job creation by providing small businesses incentives to invest in new equipment, expand their operations, and ultimately hire new employees.

The bill includes provisions that would encourage businesses to invest in new equipment and real property by increasing the amount of capital expenditures small businesses can expense. For equipment, the amount that can be expensed is increased to $500,000, and for real property it is $250,000.

Moreover, it encourages investment by providing additional first-year bonus depreciation. It promotes entrepreneurship by increasing the amount allowed as a deduction for startup expenditures. It would increase access to capital by allowing 100 percent of gain from investment and qualified small business stock to be excluded from income and taking the general business tax credit out of the alternative minimum tax for sole proprietorships, for flowthroughs and nonpublicly traded C corporations with $50 million or less of annual gross receipts. It also increases access to capital by extending the 1- year carryback for general business credits to a 5-year carryback for small businesses.

Finally, the bill promotes small business fairness by limiting harsh penalties that have been imposed on small businesses by the IRS and equalizing the tax benefits for health insurance that self-employed individuals may receive to those received by employees.

While this small business bill would go a long way in informing small businesses Congress is very serious about

reducing the burdens imposed on them, many businesses continue to struggle and will not hire new employees simply because it is the stated policy goals of Congress.

According to the most recent survey from the National Federation of Independent Businesses--and we refer to that organization around here as the NFIB--when businesses are asked what the single most important problem facing their business is, the No. 1 answer is lack of sales, but this is closely followed by taxes and then by government regulation and redtape.

I have a chart here from the most recent NFIB survey listing the top problems facing small businesses, and you can see there, as I said, that first is poor sales; secondly, taxes; and then government regulation and redtape being the hindrances to small businesses expanding to create the jobs small businesses can create. Consequently, you can see tax policy is very important because, as I said, small businesses tend to operate out of cash flow to a greater extent than companies with equity and stock.

The small business community is currently being strangled by a climate of uncertainty. Whether we are speaking about cap and trade-- some people refer to that as cap and tax--that will drastically increase energy costs or about health care reform that will require small businesses to offer health benefits that will increase the cost of labor or about the call for tax increases on so-called wealthy taxpayers earning over $200,000, that will largely fall on the backs of small businesses. Whether you are talking about any of these three--or more that I could mention--there is a great deal out there that causes small businesses to stop and think of whether now is the time to expand and hire new workers.

Taxpayers earning above $200,000 are frequently identified as coupon clippers by many of my friends on the other side of the aisle. A disproportionate level of business activity is attributable to small businesses owned by that group, and we have a chart here that shows evidence of this linkage. This chart is based upon Gallup survey data showing that over half of the larger small businesses--the ones with the good share of the workforce--are controlled by taxpayers who are targeted by the other side's marginal rate hikes. Twenty-seven percent of the medium-sized small businesses are controlled by taxpayers targeted by as much as a 17-percent marginal rate hike.

The owners of the smallest of the small business community are also affected. You see from the chart that it provides an example of how a fairly typical small business owner would be impacted by the increase in just the two marginal tax rates, which is the proposal of the President and I assume something we are going to be dealing with between now and the end of the year because everything sunsets on December 31. And I can tell you that nobody wants to be out there campaigning this fall with the largest tax increase in the history of the country happening without even a vote of the people and particularly as it is going to hit middle-income taxpayers.

So you have this possibility whether it is Congress legislating, in the higher tax brackets, higher taxes or whether it is just the tax increase going into effect without a vote of Congress. You can see here in the charts that a small business owner who is married and has two children, who has $500,000 in taxable income could see a $19,600 tax hike. That is a 13-percent increase in taxes.

One way Congress can try to put some certainty back into the lives of small businesses and entrepreneurs is by dealing with the unfinished tax legislation business. As this chart shows--and I think I brought this chart to the floor at least four times in the last 3 weeks I have been addressing this issue of taxes--there are four major pieces of legislation dealing with expired or expiring tax provisions that have yet to be addressed by this Congress, meaning between now and adjournment this December.

I have talked about this unfinished tax legislation business several times over the past few weeks, but I cannot stress enough how important dealing with these time-sensitive matters is for the business community because one of the reasons they are not hiring is because of the uncertainty that is out there--what is Congress going to do and when are they going to do it? Without certainty in tax policy, businesses are unable to plan for the future, and many businesses are in a holding pattern waiting to see what Congress will do. So it is quite obvious this is very bad for the economy and it will not be an environment for job creation. The list of unfinished tax legislative business includes everything we have here, but I will mention them: the tax extenders, which are overdue by over a half year; it also includes the alternative minimum tax patch; another area is the death tax; and the final area is the 2001 and 2003 tax rate cuts.

I am going to discuss that policy today and its implication for small businesses because until we get small businesses confident of the future and willing to spend money and invest, we are not going to create jobs. And that is a big void that is out there--not that this Senator is the only one saying so. Many Senators on the other side, including the leader of the Senate, have said that 70 percent of new jobs are created by small businesses.

As important as the AMT patch and the death tax are, they are dwarfed by the impact of this fourth package of expiring tax provisions--the 2001 and 2003 rate cuts. This was a bipartisan tax relief package. I get so tired of people talking about the Bush tax cuts from the standpoint that it was an entirely Republican-driven effort with no support from the other side of the aisle. There were a large number of Senators in the then-Democratic minority--which soon became a majority because of the switching of one Senator from a Republican to a Democrat--who helped push through this bipartisan tax relief enacted in 2001.

Under statutory pay-as-you-go, the amount permitted in this area by the budget of last year is about $1.4 trillion. It covers about 80 percent of extending all the marginal tax rates and family tax relief from the 2001 and 2003 bipartisan plans. That number makes sense because the bipartisan tax relief plan cuts taxes for virtually every American family who pays income tax.

How significant and how widespread is that tax relief, you may ask. This chart, drawn not by Republicans or Democrats but by the Congressional Budget Office data, sheds some light on that very point I bring up. In other words, the significant and widespread tax relief is very dramatic for most Americans.

The line above measures the effective tax rate paid by the top 5 percent of taxpayers. What is significant about that 5 percent is this is where the small business owner tax hit occurs. This group roughly represents those taxpaying families with incomes over $250,000. Under the Democratic leadership's budget, this line will go back up to where it was in the year 2000. So you can see where the white vertical line goes is where we were in the year 2000. And this is also where the President's budget and the statutory pay-as-you-go regime would take the raise.

People on my side of the aisle--Republicans--believe this significant tax increase will be a mistake. We hope we will be able to debate this policy in the House and Senate, in committees and on the floor. That was, after all, the process we followed when the bipartisan tax relief plans were passed in 2001, 2003, and 2005. We will point out, as we did then, that the tax increase falls primarily on the backs of small businesses.

Data from the Joint Committee on Taxation--and these are the nonpartisan official congressional scorekeepers on tax issues the way the CBO is on spending issues--shows that 44 percent of the flowthrough business income will be hit with the increase in the top two tax rates proposed by the President and the Democratic congressional leadership. A lot of this income is concentrated in the larger small businesses I have referred to here earlier, particularly those of up to 500 employees.

This hits small businesses particularly hard since most small businesses are organized, as I have said, as flowthrough entities. So it will increase taxes on a single small business owner who makes more than $200,000 per year even if they plow all their income back into their small business to keep paying their workers or hire additional workers.

The top marginal rate on small business owners will rise by almost 17 percent. Democrats and Republicans agree that small businesses are the key job creators of the past and the future. President Obama correctly pointed out that small businesses create 70 percent of the new jobs.

The rest will also hit investment hard. The top capital gains rate will rise by 33 percent. The top dividend rate could nearly triple. All of this is set to occur, not at some far distant future point, it occurs about a half year from right now.

We all hope the economy is on a path to recovery, but does this heavy tax increase on small business owners and investment ever make sense? Even the most liberal Members on the other side might wonder whether it makes sense. Do we think the private sector will grow if we hit small business investors this hard 6 months from now? And think of the uncertainty between now and then. They are not going to do anything.

I remember that this President, between his election and January 20 when he was sworn in, decided that going into a recession--or by then in a recession--even though he campaigned on a promise of increasing taxes on higher income people, it was not the right thing to do at that time of a recession.

Last December the President had some of us down to talk about jobs, helping turn the economy around, getting people hired. When he called upon me I offered him that same advice that he decided by himself 12 months before, that being in a recession was no time to increase taxes. We were in a recession still in December of 2009, as we were in December of 2008, and we still have 9.7 percent unemployment. The President could help the economy if he would announce, as he did before being sworn in, that even though I campaigned on a platform of increasing taxes on higher income people, now is not the time to do it. But he seems inclined to increase taxes, even though it is detrimental to job creation, particularly job creation by small business.

You can see, then, that the bipartisan tax relief brought, at the time we passed it, the effective rate down with respect to the bottom 95 percent of the taxpayers as well. That is the bottom line of my chart right here. So it was a tax cut across the board for almost every American. I stress this because some of my colleagues on the other side of the aisle may be thinking to themselves: Sure, this is true for income taxes. But what about other Federal taxes, such as Social Security, which make up a large percentage of taxes paid by lower and middle-income individuals? This chart is not just a depiction of Federal income taxes; this includes all Federal taxes. This includes Social Security, other payroll taxes and excise taxes frequently referred to by my colleagues on the other side as ``regressive taxes.''

Even including all Federal taxes over the last 30 years, the top 5 percent of income earners have paid a lot higher effective tax rate than the bottom 95 percent. It has been that way no matter which party has controlled the White House, Congress, or both the White House and Congress. It shows something that you would never know if you listen to the rhetoric of the majority Members of this body or even listen to the punditry on the left and some in the media.

Here is what it shows: A progressive income tax system is deeply embedded in our culture. The bipartisan tax relief plans of 2001 and 2003 made the system yet more progressive. These plans brought the rates down for the bottom 95 percent of the taxpayers, as you can see here on the bottom line. The 2001 and 2003 tax relief plans dropped the effective tax rates for tax-paying families under $250,000 to their lowest levels in a generation. This is the current law, the current level of taxation.

In about a half year these rates will pop back up for all of these taxpayers. That is the checkered line going across there. That is where they are going to return to. The President, as powerful as he is, cannot unilaterally hike or cut taxes. He needs a bill from Congress to do that.

On our side, we want all the tax relief made permanent. We want the opportunity to debate and to amend a bill that deals with this basic level of taxation, the basic level of taxation where the solid lines take us both for high-income people and low-income people; otherwise, they go back up to the checkered line there. This is unfinished business that affects virtually every American taxpayer.

It is clear that over the last 3\1/2\ years, Republicans do not control this Congress. We cannot decide the fate of the marginal rate cuts. It will have a fiscal consequence. There are pretty significant fiscal consequences, but if the Democratic leadership wants to keep these levels of taxation low, then they have to deal with the fiscal consequences.

Alternately, the Democratic leadership can raise taxes and claim the revenue. Not changing the law by failing to act is the same as raising rates on virtually every American taxpayer. But they will have to explain to those taxpayers why they raised taxes by almost 10 percent on average.

In the 2006 election almost 4 years ago, the American people provided the Democratic leadership with control of this Congress. In the election 18 months ago, the American people provided the Democratic leadership the largest majorities that any one party has had in this body in more than a generation. They also provided the Democratic leadership with a President of their party. The Democratic leadership spent the period of 2001 to 2006 thwarting efforts to make the bipartisan tax relief of 2001 and 2003 permanent--which, if they had not fought it, would be permanent law and we would not have this uncertainty that keeps small business from hiring and expanding.

Upon assuming control, the majority has spent 3\1/2\ years with no legislation to make permanent or even extend the marginal rate cuts and family tax relief packages. My friends in the Democratic leadership need to step to the plate. We have had budget and statutory pay-as-you- go, we have debated and voted on the breadth and composition of the marginal rate cuts and family tax relief in those contexts. No legislative action whatsoever. No House committee or floor action. No Senate committee or floor action--as you can see by my ``to do'' list.

The Democratic leadership needs to step to the plate. Blaming former President George W. Bush and the Republican Congresses of many sessions ago is no substitute for running this time-sensitive tax legislative business through the legislative process. Put forward some proposals. Let's debate those proposals. Let's allow for amendments. Do the people's business. It is time to fill in each of these boxes with a checkmark instead of an X.

Fiscal history shows us that raising these marginal rates on small businesses by as much as 17 percent will not necessarily improve the fiscal picture. The relationship between higher rates and higher revenue is tenuous at best.

I have a chart that tracks this history for over 50 years, I believe. Yes, for 55 years and, who knows, maybe farther back than that. Taxpayers are not automatons. Small business taxpayers will respond dramatically to higher rates. I am afraid the response will not help the economy. It will not mean expansion. It could mean contraction. This is not the right signal to send if we want businesses to create more jobs.

I want to emphasize this chart. You can see, over a period of 55 years, the red line is the revenue coming into the Federal Treasury from all Federal taxes as a percentage of gross domestic product. Then you can see over that 55 years we have had varying years of high marginal tax rates and lower marginal tax rates. It was 93 percent under Eisenhower, down to a low of 28 percent under Ronald Reagan, back up to 35 percent for several years as a result of the Bush tax increase, continued by the Clinton tax increase. Then with the 2001 bill you see it go down, the marginal tax rates, to 35 percent from 39 percent.

What that ought to tell you is that the people of this country are smarter than we are here in the Senate. We can think we are going to increase marginal tax rates and bring in a lot of revenue. But the people of this country who have the capability of deciding whether they are going to invest and create jobs and invest so they can make more money have decided that they are only going to send so much money to Washington, DC, for those of us in the Congress to decide how the resources of this Nation are divided.

You can have 93-percent tax rates or you can have a low of 28-percent tax rates, but you still get about the same amount coming in. So we ought not fool ourselves that we can direct to this country that we are going to force you to pay more taxes with higher marginal tax rates, because the people in this country have the ability to decide that they are going to work and produce or is it worth working and producing if you have high marginal tax rates and then maybe decide not to work and invest so hard and maybe take a life of leisure--more so. But you find when you reduce marginal tax rates you get more economic activity from it. You get more economic activity from it because, quite frankly, we in this Congress, 535 of us, when we decide what to do with the resources of this country it does not do as much economic good as when you leave the money in the pockets of 137 million taxpayers and they decide whether to spend or whether to save or to spend and save and how to save it and what to spend it on. It creates more jobs.

I hope we look at helping small business. The bill before us is a good bill with solid initiatives for small business. I compliment my friend Chairman Baucus for diligently pressing these issues. They would be even more effective if we could address the uncertainty a small business faces on the tax front.

When it comes to whether small business can do a better job of creating employment or whether government can do it, I wanted to ask the question: How many jobs did the stimulus bill create?

Here we were, February of 2009, passing an $800-some billion stimulus bill supposedly to keep employment under 8 percent, and it has not been under 9\1/2\ percent for well over a year. That is government, through stimulus, trying to create jobs--and not enough in the private sector, by the way.

So in recent weeks, a number of my colleagues have come to the floor to proclaim the success of this massive, now I guess it adds up to a $862 billion stimulus bill that Congress enacted in February of 2009. Similar statements were made earlier this very day.

Although the number of private sector jobs has increased by only half a million since 2009, my friends on the other side continue to insist the stimulus bill has created millions of new jobs. So I would like to see how they justify those claims. The stimulus bill requires certain recipients of stimulus funds to report the number of jobs they have created or saved or, more accurately, they report the number of jobs funded with stimulus dollars. The stimulus bill also requires the Congressional Budget Office, CBO, to issue a quarterly report on those numbers.

CBO is careful to point out that the number of jobs being reported by stimulus recipients is not a comprehensive estimate of the economic impact of the stimulus bill. CBO says the actual numbers could be higher or lower. According to CBO:

Estimating the law's overall effect on employment requires

a more comprehensive analysis than the recipients' reports

provide.

For this analysis, CBO relies upon computer models. In other words, CBO does not look at the actual jobs data; instead, it looks at a model of the economy. CBO is very upfront about this to all of us.

CBO used a computer model to predict how many jobs the stimulus bill would create before it was enacted into law. Now that the stimulus bill is law, CBO is using a computer model to tell us it did just what they said the model would do, create jobs. Why would CBO rely upon a model instead of actual data?

According to CBO:

Data on actual output and employment . . . are not as

helpful in determining [the stimulus bill's] economic effects

. . . because isolating those effects would require knowing

what path the economy would have taken in the absence of the

law. Because that path cannot be observed, there is no way to

be certain about how the economy would have performed if the

legislation had not been enacted.

In other words, CBO does not know how much better or worse the economy would have been if the stimulus bill had not been enacted. That means CBO does not know how much better or worse the economy is now as a result of the stimulus bill.

So, basically, CBO is saying: Trust us--or more specifically, trust our model. But if the model was wrong to begin with, then it is still wrong. According to CBO, their model relies on historical relationships to determine estimated ``multipliers'' for each category of taxes and spending in the stimulus bill. The problem is, there is no way to know whether these historical relationships remain constant over time or whether they change under different economic circumstances. In short, the jobs numbers attributed to the stimulus bill are based on assumptions that may or may not have any basis in reality.

The bottom line is this: CBO cannot be cited as an authority for the proposition that the stimulus bill actually created jobs. All CBO has done is confirm that its model, and I repeat, CBO's model, projected jobs would be created from the stimulus bill.

CBO has not confirmed that the stimulus bill actually created jobs. What we do know is that in 18 months, since the $862-plus billion stimulus bill went into effect, the private sector has added a relatively small number of new jobs, about half a million. This is a small portion of the number of new jobs asserted by my friends on the other side of the aisle.

I want to make the Record very clear on this very important point.

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

Madam President, I was surprised to see the Senate majority leader on Friday morning, in some of the harshest possible language, make the misleading assertion that Senate Republicans oppose the underlying policy in the tax extenders bill. His statement conveniently ignored the basic reason nearly every Republican for opposing the Democratic leadership's substitute. It was opposed to because it perpetuated the large deficit spending that has become the modus operandi of the Democratic leadership.

The way to a bipartisan agreement is to follow the path set 1 week ago

today. Just 1 week ago, the Senate passed a bill that extended the so- called Medicare doc fix for several months.

The bill was fully offset. It was paid for. It did not add to the deficit. Every Republican Senator supported that fiscally responsible approach. I would like to make a couple of points on the process employed by the Democratic leadership. The majority leader's comments this morning are typical of the dysfunctional way that these routine extenders have been unnecessarily delayed by the strategy and tactics of the Democratic leadership.

What I find surprising is that we took up a package, the fourth in the latest series, that, like previous exercises, absolutely belongs to the Senate Democratic leadership. That is to say they continued to refuse to take up a bipartisan package that I put together with Finance Committee Chairman Baucus. To be sure, some of the structure reflected the agreement my friend, the chairman and I reached.

I was under the impression that the Senate Democratic leadership was genuine in its desire to work on a bipartisan basis, but clearly I was mistaken. Although the Senate Democratic leadership was highly involved in the development of a bipartisan bill, they arbitrarily decided to replace it with a bill that skews toward their liberal wing.

My second comment goes to the way in which these expiring tax provisions have been described by many on the other side, including those in the Democratic leadership. If you rolled the videotape back a few months or so ago, you would hear a lot of disparaging comments about these routine, bipartisan extenders. From my perspective, those comments were made in an effort to sully the bipartisan agreement reached by Chairman Baucus and me.

If you take a look at newspaper accounts of that period, you'd come away with the impression that the tax extenders are partisan pork for Republicans. A representative sample comes from one report, which describes the bipartisan bill as ``an extension of soon-to-expire tax breaks that are highly beneficial to major corporations, known as tax extenders, as well as other corporate giveaways that had been designed to win GOP support.'' The Washington Post included this attribution to the Senate Democratic leadership in an article at that time: ``We're pretty close,'' [the majority leader] said Friday during a television appearance in Nevada, adding that he thought ``fat cats'' would have benefitted too much from the larger Baucus-Grassley bill.''

The portrait that was painted by certain members of the majority in some press reports was inaccurate.

For one thing the tax extenders include provisions such as the deduction for qualified tuition and related expenses and also the deduction for certain expenses of elementary and secondary school teachers. If you are going to school or if you are a grade school teacher, the Senate Democratic leadership apparently viewed you as a fat cat. If your house was destroyed in a recent natural disaster and you still need any of the temporary disaster relief provisions contained in the extenders package, too bad, because helping you would amount to a corporate giveaway in the eyes of some.

The tax extenders have been routinely passed repeatedly because they are bipartisan and very popular. Democrats have consistently voted in favor of extending these tax provisions. House Speaker Nancy Pelosi released a very strong statement upon House passage of tax extenders in December of 2009, saying this was ``good for businesses, good for homeowners, and good for our communities.'' December of 2009 was not very long ago. In 2006, the then-Democratic leader released a blistering statement ``after Bush Republicans in the Senate blocked passage of critical tax extenders'' because ``American families and businesses are paying the price because this Do Nothing Republican Congress refuses to extend important tax breaks.''

Recent bipartisan votes in the Senate on extending expiring tax provisions have come in the Emergency Economic Stabilization Act of 2008, the Tax Relief and Health Care Act of 2006, which passed the Senate by unanimous consent and the Working Families Tax Relief Act of 2004, which originally passed the Senate by voice vote, although the conference report only received 92 votes in favor and a whopping 3 against. According to the non-partisan Congressional Research Service, extension of several of these provisions go back even further, including the Tax Relief Extension Act of 1999, which again passed the Senate by unanimous consent, but lost 1 vote on the conference report.

One Member on the other side said ``Our side isn't sure that the Republicans are real interested in developing good policy and to move forward together. Instead, they are more inclined to play rope-a-dope again, My own view is, let's test them.'' Another Member of this large 59-vote majority exclaimed, ``It looks more like a tax bill than a jobs bill to me. What the Democratic Caucus is going to put on the floor is something that's more focused on job creation than on tax breaks.''

Reading those comments I found myself scratching my head. The only explanation for this behavior is that certain senators decided last week that it serves a deeply partisan goal to slander what have been for several years bipartisan and popular tax provisions benefitting many different people. The Washington Post article I quoted from earlier includes a statement from a Senate Democratic leadership aide saying that ``No decisions have been made, but anyone expecting us immediately to go back to a bill that includes tax extenders will be sorely disappointed.''

You can imagine, that today, after considering these comments, I am really scratching my head. We have before us the expiring tax and health provisions that were disparaged just a short time ago. Have they morphed from corporate tax pork? Have they suddenly re-acquired their bipartisan character? Are these time-sensitive items, now expired for more than 2 months, suddenly jobs-related?

Madam President, I also want to correct the record regarding a statement made last Thursday night by the senior Senator from Illinois. He said that the international tax increases that the Democrats have called for in the extenders bill would stop companies from sending jobs overseas. If only these international tax increases would do that, I would be at the front of the line, doing what I could to pass them. But, unfortunately, that is not what they would do. I would like to briefly describe why, if anything, these international tax increases would actually tend to hurt the job market here at home in America.

Quite to the contrary of the complaint by the senior Senator from Illinois, these international tax increases may make American businesses less competitive in the global marketplace. Increased taxes increase the cost of doing business. Those tax increases are targeted only at U.S. companies on their business abroad. They are not aimed at foreign companies with which the U.S. companies are competing side-by- side. Guess what. The cost must be absorbed by the U.S. company. The cost of these tax increases may make it less likely that American businesses will hire. Instead German, or Indian, or Chinese companies will out-compete and thus be hiring more. If the U.S. taxes the foreign subsidiaries of U.S. parent companies at ever higher rates, the result won't be jobs kept here at home.

No, the result will instead be that the U.S. will become a less and less attractive place to have a parent company, to have a global headquarters. This will result in less, not more, but less jobs here in America.

But that is certainly not my only objection. Not only could these international tax increases result in less American jobs, but these proposed tax increases have not had adequate vetting. In some cases, the proposed tax increases would actually be retroactive. These tax increases would be permanent tax increases, meant to pay for temporary tax reductions--a strange miss-match. If these international tax increases really are loophole closers, then it is squandering them to use them for such temporary provisions, rather than to use them to pay for corporate tax reform.

Finally, the business community--that is, the hiring sector--has reacted quite negatively to this bill, even though the bill also contains the tax extenders that the business community wants.

Those are the reasons that I oppose these tax increases.

Mr. President, I yield the floor.

Since I do not see any other Members present to speak, I suggest the absence of a quorum.

Mr. President, I address my colleagues for the purpose of submitting a resolution that will bring about greater transparency in government. I think my colleagues know I have a long history in promoting this sort of transparency. I believe the more people are aware of what we are doing in the Senate and the Congress, or in Washington generally, the more accountable we are. The more accountable we are, the better job we will do. I hope everybody agrees that is a pretty simple concept.

Today, the purpose I come to the Senate floor is to submit a resolution that will improve transparency in this body and hold us all more accountable to the people we serve; in other words, reminding the people that we work for them; they do not work for us.

This resolution requires the Secretary of the Senate to make filed amendments publicly available as soon as they are made available to Members and staff. I will show, in just a minute, that they are almost immediately made available to Members and staff. So why not the public?

In this day and age you would think this was already happening. We live in a world of 24-hour news. We live in a world of instant coverage over the Internet of just about everything. Yet we have not been allowing the general public to get this information real time. My proposal would add more transparency to how the Senate works and what we are debating on the Senate floor.

Some might question whether this is necessary. Under the current system, the public is usually able to see an amendment the next day in the Congressional Record. So I want to say why that is not good enough. In many cases, that may simply be too late.

Under the current system, the public may not be able to see the amendment until after debate has begun or even

after the Senate has already voted. This would be even more common during some of the controversial debates that stretch late into the evening. You might remember the late evening votes we had on health care reform last December and again in March where hundreds of amendments were filed and votes were cast well past midnight.

In fact, today we make the vote count public on the Internet within an hour of when a vote takes place. But we might not be able to make the substance of what we voted on available until the next day. So we let the public see how we voted, but we do not always let them see what we voted on. Of course, that does not make sense.

Just last night, Members tried to call up and pass various amendments. But only the most experienced Washington insider would have been able to actually find copies of those amendments. Shouldn't we have some kind of searchable system for amendments to allow our constituents the same access to information that some seasoned lobbyist or some seasoned congressional staffer has?

Don't we want to give our constituents a chance to see the amendments before we vote on them, if they are interested in reading them? Don't we want to know what our constituents think about amendments before we vote on them?

In order for that to happen, they have to know what those amendments are that have been filed. Of course, I am not talking about an amendment that might change a word here or a word there--although those should be publicly available as well. Some amendments I am talking about are hundreds of pages long and even constitute a complete rewrite of an underlying bill.

Today, we will likely see our fifth version of the extenders bill that is now the pending business on the floor of the Senate, and that fifth version would be in the form of an amendment. But our constituents may not be able to see that until tomorrow.

Shouldn't the public be able to see that amendment as soon as we Members or our staffs can read that amendment? This is a representative system of government, and it is impossible to represent the American people if they do not have access to the same information we have.

In addition to those who will question whether this is necessary, others might wonder whether it is even possible, like technically possible.

In fact, we are already doing it. That is right. The amendments are already available electronically to Senate offices almost immediately after they are filed, but they are not available to the public--not necessarily intentionally hidden from the public, but the public cannot get them like everybody in the Senate and in our offices can get them.

I have a chart in the Chamber that shows there is already an Amendment Tracking System Web site that is only available to Members of Congress and staff. It provides a copy of the amendment, the purpose of the amendment, the sponsor of the amendment, and the status of that amendment.

My resolution is this simple: It would simply make this or a similar Web site available to the public, much like already is done with the Legislative Information System site or the Thomas site at the Library of Congress.

That way, the public gets to see exactly what we Members and our staffs are seeing almost immediately after filing. They get the same information and can provide their input prior to a vote.

There is a lot of distrust of government these days. People believe Congress is ignoring what the public thinks and what the public wants. Some of this is the result of the policies that are being considered around here. But it also has to do with the lack of transparency and accountability in government.

I am not saying this resolution is going to fix all that is wrong with that distrust that is expressed--because it will not--but this resolution is one more step toward letting a little more sunshine into this Chamber. This straightforward resolution will increase transparency, it will promote accountability, and it will make us all better representatives of the people we serve.

I hope the Senate will consider this resolution at some point in the near future, and I also urge my colleagues to support it. The public deserves access to this information on the same basis as those of us who are closely connected to this institution--meaning the Members and our staffs.

How much time remains on this side?

I thank the Chair.

Mr. President, I have a unanimous consent request but I will wait until a Member from the other side is here to make it. As a predicate to that, I will make a statement on my reason for doing so.

As the majority continues to struggle in an attempt to pass another massive deficit spending bill through Congress, biodiesel plants in Iowa and throughout the country continue to lay off workers because the Democratically controlled Congress has not extended the biodiesel tax credit. This is a simple and noncontroversial tax extension that will likely reinstate 20,000 jobs nationwide and about 2,000 jobs in my State of Iowa all by itself. These jobs have fallen victim to a tactic used by the Democratic leadership to hold this popular and noncontroversial tax provision hostage to out-of-control deficit spending in Washington.

This past February, I worked out a bipartisan deal with Chairman Baucus to extend the expired tax provision, including the biodiesel tax credit. However, the Senate Democratic leadership decided to put partisanship ahead of job security for thousands of workers in the biodiesel industry. I am here again to try to put thousands of workers back to work, American workers, in the process of producing a clean and renewable fuel. We already stripped out and passed the so-called doctor fix from the larger extenders bill last week. We should do the same with the biodiesel tax credit right now.

Also there is a difference between the biodiesel tax credit and the other tax provisions in the tax extenders bill. The failure to extend the biodiesel tax credit before it expires has ground the industry to a halt, because biodiesel is now more expensive than gasoline and gas stations know they can't sell it. So, of course, naturally, they don't buy it. Therefore, biodiesel producers have stopped producing it because they have nobody to sell it to. While the other tax provisions are important, they are not as time sensitive as biodiesel, because they are not transactional tax incentives like the biodiesel tax credit but instead are based on the taxable year.

I am going to reserve my unanimous consent request until the Senator from Michigan returns. I will go to other remarks I want to make at this point.

I see the Senator has returned so I will make my unanimous consent request at this point.

Unanimous Consent Request--H.R. 4853

I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 4853, that all after the enacting clause be stricken and the text of S. 3440, to extend the biodiesel fuel tax credit, be inserted; that the bill, as amended, be read a third time and passed and the motion to reconsider be laid on the table.

Mr. President, I have a further unanimous consent request. I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 4853; that all after the enacting clause be stricken and that an amendment at the desk, which is the text of S. 3421, be agreed to; that the bill, as amended, be read a third time and passed, and the motion to reconsider be laid upon the table.

Mr. President, may I ask how much time remains?

I thank the Chair.

Mr. President, this morning we saw yet another replay of a dialog between some of my friends on the other side and some on my side of the aisle. It kind of goes like this. Republicans make a proposal to make a pending Democratic leadership proposal such as the extenders bill deficit neutral. The Democratic leadership marshals the votes and defeats the deficit-neutral proposal on a largely party-line basis. After the vote, debate ensues. My friends on the other side define the proposal that they defeat in an incorrect way. They define it as a proposal to carry out the policy of a fiscally responsible manner as opposition to the underlying policy in the proposal. Republicans counter that the Republican deficit-neutral proposal carries most, if not all, of the policy contained in the Democratic leadership's proposal.

When the smoke clears, the true differences between the two sides' approaches become very clear. My friends on the other side want to add to the deficit to carry out the underlying initiative--be it an extension of unemployment benefits or a lot of other things in the bill. On this side, we want deficit neutrality at a minimum by rolling back future bloated spending. The Democratic leadership wants to keep in place the future bloated spending. Tax increases are OK, if they are offset. Bring on hundreds of billions of dollars of tax increase, whether they hit individuals, small businesses, or what have you. As an example, the latest tax is due to hit next week. Next Tuesday, July 1, users of tanning bed services will face a new 10-percent tanning bed excise tax. God help us if someone proposes to make the government even a little bit leaner. That proposal will be met with a brick wall of resistance, even if it is a proposal to roll back future unobligated, unallocated stimulus spending, which stimulus spending has not accomplished what it was intended to accomplish, keeping unemployment under 8 percent.

The upshot is this: For my friends in the Democratic leadership, keeping the spending spigot all the way open trumps deficit reduction. Keep the spending going, in other words. Worry about our deficit sometime down the road. Let our grandchildren worry about it.

On the Republican side, we want to trim the spending and save some taxpayers money by managing priorities. That is a worthwhile debate. It is an intellectually honest debate. It is the kind of debate that can inform fiscal policy judgments. But my friends in the Democratic leadership are not content to have the debate on that basis. Instead, we have seen a pattern where they want to change the subject. Instead of focusing on the present and the future, my friends on the other side want to revisit the past. In veering away from current choices and future fiscal consequences, my friends on the other side take the discussion in a whole different direction. My friends on the other side claim they cannot deal with these problems in a fiscally responsible manner because of Republicans. Republicans only left them with fiscal problems.

People watching C-SPAN witnessed this back and forth last Thursday, and around lunchtime the Senate voted on Senator Thune's alternative to the Democratic leadership's extender bill. The Thune amendment took the exact opposite approach to the Democratic leadership's substitute. It cut taxes by $26 billion by extending current law. It cut spending by over $100 billion and reduced the deficit by $68 billion. Those are not this Senator's numbers. They come from the nonpartisan Congressional Budget Office and the nonpartisan Joint Committee on Taxation.

According to the Congressional Budget Office, the last version of the Democratic leadership's extender substitute would have increased direct spending by about $105 billion through the year 2020, and raised revenues by about $50

billion over that period, resulting in a net deficit increase of about $55 billion. As an aside, last Friday Chairman Baucus and I prevailed on the leadership to clear the deficit-neutral bill that extended the so-called Medicare doctor fix. That action will cut those numbers a little bit.

On the larger bill, however, the contrast could not be clearer. The Republican Conference, along with one member of the Democratic caucus, voted to change the bottom line fiscal effects of the Democratic leadership's extender substitute. If Senator Thune had prevailed, his amendment would have reduced the deficit by $13 billion more than the amount the Democratic leadership's extender substitute would have added to the deficit. The Thune amendment reached this better fiscal result by simple common sense of restraining Federal spending. All but one Member of the Democratic caucus then in attendance, 57 Senators, voted against the Thune amendment. One of the Senators who voted for the Thune amendment came to the Senate floor to highlight the differences between the Democratic caucus and the Republican Conference in the approach to this extenders bill.

A Member of the Democratic leadership also made some comments on the current fiscal problems. Instead of focusing on the question of whether to offset the policy or not, that Member decided to change the subject. As we saw this morning, that Member of the Democratic leadership wanted to go back several years and talk about fiscal history.

This morning, like last week, there was a lot of revision or perhaps editing of the recent budget history. I expect more of it from some on the other side.

The President signaled as much in an interview with George Stephanopoulos a few months ago. I agree with the President that there is a lot of revisionism in the debate.

The revisionist history basically boils down to two conclusions: One, that all of the ``good'' fiscal history of the 1990s was derived from a partisan tax increase bill of 1993; and, two, that all of the ``bad'' fiscal history of this decade to date is attributable to the bipartisan tax relief plans.

Not surprisingly, nearly all of the revisionists who spoke generally oppose tax relief and--do you know what--support tax increases. The same crew generally supports spending increases and opposes spending cuts.

In the debate so far, many on this side have pointed out some key undeniable facts. The stimulus bill passed by the Senate, with interest included, increases the deficit by over $1 trillion. The stimulus bill was a heavy stew of spending increases and refundable tax credits, seasoned with small pieces of tax relief.

The bill passed by the Senate had new temporary spending that, if made permanent, will burden future budget deficits by over $2.5 trillion. That is not Senate Republicans adding that up. It is the official congressional scorekeeper, the Congressional Budget Office, nonpartisan as they are. In fact, the deficit effects of the stimulus bill passed a year ago March--passed within a short time after the Democrats assumed full control of the Federal Government--roughly exceeded the deficit impact of the 8 years of bipartisan tax relief.

All of this occurred in an environment where the automatic economic stabilizers, thankfully, kicked in to help the most unfortunate in America with unemployment insurance, food stamps, and other benefits.

That antirecessionary spending, together with lower tax receipts, and the TARP activities, has set a fiscal table of a deficit of $1.4 trillion for the fiscal year that ended several months ago. That is the highest deficit, as a percentage of the economy, in post-World War II history.

It is not a pretty fiscal picture, and it is going to get a lot uglier with the budget put forward by the President this year. It is the same result under the budget crafted last year by the Democratic leadership.

So for the folks who see this bill as an opportunity to ``recover'' America with government taking a larger share of the economy over the long term, I say congratulations. America has been recovered with a vast expansion of government and the American People have a lot of red ink to look forward to.

Members who voted for the budget and the fiscal policy envisioned in it put us on the path to a bigger role for the government. But supporters of that fiscal policy need to own up to the fiscal course they are charting.

That is where the revisionist history comes from. From the perspective of those on our side, it seems to be a strategy to divert, through a twisted blame game, from the facts before us. How is the history revised? Let's take each conclusion one by one.

The first conclusion is that all of the ``good'' fiscal history was derived from the 1993 tax increase. To test that assertion, all you have to do is take a look at data from the Clinton administration.

The much-ballyhooed 1993 partisan tax increase accounts for 13 percent of the deficit reduction in the 1990s--13 percent. That 13 percent figure was calculated by the Clinton administration's Office of Management and Budget.

The biggest source of deficit reduction, 35 percent, came from a reduction in defense spending. Of course, that fiscal benefit originated from President Reagan's stare-down of the Communist regime in Russia. The same folks on that side who opposed President Reagan's defense buildup take credit for the fiscal benefit of the ``peace dividend.''

The next biggest source of deficit reduction, 32 percent, came from other revenue.

Basically, this was the fiscal benefit from pro-growth policies, like the bipartisan capital gains tax cut in 1997, and the freetrade agreements President Clinton, with Republican votes, established.

The savings from the policies I have pointed out translated to interest savings. Interest savings account for 15 percent of the deficit reduction.

Now, for all the chest-thumping about the 1990s, the chest-thumpers, who push for big social spending, didn't bring much to the deficit reduction table in the 1990s. Their contribution was 5 percent.

What is more, the fiscal revisionist historians in this body tend to forget who the players were. They are correct that there was a Democratic President in the White House. But they conveniently forget that Republicans controlled the Congress for the period where the deficit came down and turned to surplus.

They tend to forget they fought the principle of a balanced budget that was the centerpiece of Republican fiscal policy.

Remember the government shutdown of late 1995, my friends on the Democratic side? Remember what that was about? It was about a plan to balance the budget. We are constantly reminded of the political price paid by the other side for the record tax increase they put in the law in 1993. Republicans paid a political price for forcing the balanced budget issue in 1996. But, in 1997, President Clinton agreed. Recall as well all through the 1990s what the year-end battles were about.

On one side, congressional Democrats and the Clinton administration pushed for more spending. On the other side, congressional Republicans were pushing for tax relief.

In the end, both sides compromised. That is the real fiscal history of the 1990s.

Let's turn to the other conclusion of the revisionist fiscal historians. That conclusion is that, in this decade, all fiscal problems are attributable to the widespread tax relief enacted in 2001, 2003, 2004, and 2006.

In 2001, President Bush came into office. He inherited an economy that was careening downhill. Investment started to go flat in 2000. The tech-fueled stock market bubble was bursting. After that came the economic shocks of the 9/11 terrorist attacks. Add in the corporate scandals to that economic environment.

And it is true, as fiscal year 2001 came to close, the projected surplus turned to a deficit. But it is wrong to attribute the entire deficit occurring during this period to the bipartisan tax relief. According to CBO, the bipartisan tax relief is responsible for only 25 percent of the deficit change, while 44 percent is attributable to higher spending, and 31 percent is attributable to economic and technical changes.

At just the right time, the 2001 tax relief plan started to kick in. As the

tax relief hit its full force in 2003, the deficits grew smaller. This pattern continued up through 2007.

If my comments were meant to be partisan shots, I could say this favorable fiscal path from 2003 to 2007 was the only period, aside from 6 months in 2001, where Republicans controlled the White House and the Congress. But, unlike the fiscal history revisionists, I am not trying to make any partisan points, I am just trying to get to the fiscal facts.

There is also data that compares the tax receipts for 4 years after the much-ballyhooed 1993 tax increase and the 4-year period after the 2003 tax cuts. I have a chart that tracks those trends.

In 1993, the Clinton tax increase brought in more revenue as compared to the 2003 tax cut. That trend reversed as both policies moved along.

Over the first few years, the extra revenue went up over time relative to the flat line of the 1993 tax increase.

So, let's get the fiscal history right.

The progrowth tax and trade policies of the 1990s, along with the ``peace dividend,'' had a lot more to do with the deficit reduction in the 1990s than the 1993 tax increase. In this decade, deficits went down after the tax relief plans were put in full effect.

No economist I am aware of would link the bursting of the housing bubble with the bipartisan tax relief plans of 2001 and 2003.

Likewise, I know of no economic research that concludes that the bipartisan tax relief of 2001 and 2003 caused the financial meltdown of September and October 2008. I have a chart that shows what the President inherited from a Democratic Congress and a Republican President.

As I said, from the period of 2003 through 2007, after the bipartisan tax relief program was in full effect, the general pattern was this: revenues went up and deficits went down.

That is the past. We need to make sure we understand it. But what is most important is the future. People in our States send us here to deal with future policy. They don't send us here to flog one another, like partisan cartoon cut-out characters, over past policies. They don't send us here to endlessly point fingers of blame.

The substitute before us takes us in the direction of more deficits and debt. The Thune amendment, which was rejected by most of the Democratic Caucus, would have put us on a path in the opposite fiscal direction. My friends on the other side fool no one if they pretend that the fiscal choices made by the Democratic leadership and the President over the last year have nothing to do with this rapidly rising debt.

President Obama rightly focused us on the future with his eloquence during the campaign. I would like to paraphrase a quote from the President's nomination acceptance speech: We need a President who can face the threats of the future, not grasping at the ideas of the past.

President Obama was right.

We need a President, and, I would add, Congressmen and Senators who can face the threats of the future. Grasping at ideas of the past or playing the partisan blame game will not deal with the threats to our fiscal future.

It is not too late to correct the excesses of the stimulus bill or the bloated appropriations bills that will come. The Senate missed an opportunity with a partisan rejection of Senator Thune's alternative.

We took a small, bipartisan step last Friday. The Senate unanimously approved a paid-for Medicare doc fix bill, led by my friend, Chairman Baucus. That was the way we need to go.

There are more bipartisan fiscally responsible efforts underway. Senator McCaskill's and Senator Sessions' amendment, which calls for a timeout on the exponentially rising levels of appropriations spending, is a good start. The President called on the Democratic leadership to do something similar.

That is what the American people want and need. There is a way to reach a real bipartisan compromise. It is right in front of the Democratic leadership. Efforts to change the subject and blame Republican Congresses of many years ago won't answer the questions about what needs to be done now.

Efforts to blame every fiscal problem on a Republican President who retired a year and a half ago is no answer. It is a strategy that avoids responsibility for the trillions of new spending that the Democratic leadership and this President have muscled through with large majorities. It is time to match the power with responsibility. The American People expect no less.

Mr. President, I yield the floor.

Mr. President, I would like to pay tribute to SPC Christopher W. Opat, an Iowan who gave his life in service to his country as part of Operation Iraqi Freedom. He was from Lime Springs, IA, and graduated from Crestwood High School in 1999. Christopher attended Iowa Lakes Community College before enlisting in the Army. He was remembered as a hard worker with a good sense of humor. Specialist Opat was serving his third deployment to Iraq. During his brief military career, he was twice awarded the Army Good Conduct Medal and also received the National Defense Service Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, and the Overseas Service Ribbon. Our Nation is indebted to individuals like Specialist Opat whose tremendous sacrifice in defense of freedom must never be forgotten. The loss of such a dedicated, patriotic American is extremely sad and my prayers will be with Christopher's mother Mary Katherine, his father Leslie, and all his family and friends at this difficult time. I ask all my colleagues in the Senate to join me today in paying tribute to the courageous and selfless service of SPC Christopher Opat.