Floor Statements

Mr. President, I have at the desk amendment No. 3337. I ask for its immediate consideration.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, this is the Sessions-McCaskill amendment, offered with Senator McCaskill, my colleague from Missouri. It is a bipartisan amendment, and it is one that I think is very important. I hope my colleagues will give it serious consideration. We have close to enough votes to make it law. I am absolutely convinced it is one thing that will work to reduce the surging deficits in our country.

The week before last, I traveled my State of Alabama--25 stops, 6 days of travel. People continually expressed to me their concern about the financial future of our country. They want us to do something about it.

I heard some of my colleagues express things like: This is just populist anger. It will pass off. We need to keep a cool head here. We don't really have to change how we do business. Things are going to work out somehow, someway, although nothing in the numbers show that.

Mr. Bernanke, the Chairman of the Federal Reserve, said last week in his testimony before Congress that our path is unsustainable. That is not the first time he said that. Virtually every economist who has opined in the last 6 months or more on our economy has said our spending levels are unsustainable and threaten the viability of our country's economic system. It is very troubling. We all know that, and we do not need to go into a whole lot of discussion about it.

The gross debt of our country has grown to approximately $12 trillion--the highest in our Nation's history. Some of this is internal debt. We owe Social Security and Medicare and other trust funds that may be in surplus. But we also owe trillions on the public debt--the amount of debt this country owes outside the government. Within 5 years our public debt will double, and in 10 years the public debt will triple. I will show a chart on that point before I go into the details of it. One of the consequences of the public debt is that we pay interest and we have to get nations or individuals to loan us their money by buying our Treasury bills, bonds and notes. When they give us their money, this is not free. We have to pay them interest on all of the debt we run up. This bill that is on the floor today will add to the debt again because it is not paid for.

This chart is what we get in stunning numbers. It shows that in 2009, interest on the public debt--the debt we owe to people outside our government--was $187 billion. The Congressional Budget Office scores it based on the 10-year budget President Obama submitted to us. If his budget is in effect for 10 years, the deficit would go up every single year. The debt will continue to go up every single year, and in the outyears the annual deficits will approach $1 trillion each year. The interest on the debt in 1 year would be $799 billion. That is well above the current defense budget. Aid to education is $50 billion or $60 billion. State and Federal aid to highways last year and the year before last was $40 billion. Mr. President, $800 billion in interest in 1 year? It is a stunning number, a breathtaking number. It is going to crowd out all kinds of plans some of my spending colleagues would like to effectuate in future years because we are not going to have the money or else we are going to inflate the currency and damage this economy in a most systemic way.

This disturbing trend of higher and higher deficits and deficit spending shows no sign of stopping. As of September 30, the end of our fiscal year, we finished with a record $1.4 trillion deficit. That is more than three times the highest deficit we have ever had. It is projected that as of September 30 of this year we will have a $1.4 trillion or $1.5 trillion deficit this year, which would be the highest ever again in consecutive years. It is stunning. We cannot continue to spend the way we are spending.

Between 1990 and 2002, however, Congress took some steps that actually worked to help get us out of a spiral of spending deficits. It was successful. What we did was we passed statutory caps on discretionary spending only, not Social Security, Medicare and those kinds of programs. We kept it to 1 to 2 percent growth each year. As this chart shows, these caps led to a surplus. The chart is upside down really. These are the surplus years. These are the deficit years. During these years, we begin to show a decline in deficits, all the way to the surpluses. When it expired, it jumped up again. This looks like a high deficit, and it was a very high deficit in 2004. That was about the highest, at that point $400 billion.

I just made the point that this past fiscal year, it was $1,400 billion and next year it is going to be $1,500 billion. We lost some discipline when we allowed those statutory caps or spending levels to be breached and go away.

This amendment Senator McCaskill and I have offered both restores and strengthens the procedures that were proven to work in the 1990s. It would create 4-year discretionary spending caps or limits, and it would set those limits at the level of the fiscal year 2010 budget resolution Congress passed last year.

Last year, we passed a budget resolution, not 10 years as proposed by President Obama but 5 years. It is currently in effect. One of the things you learn around here is the only part of the budget that has any teeth is the year you are in. The discretionary spending on the omnibus bill that covered half the appropriations bills contained an increase of 12 percent. We are not doing a very good job at that. The budget has no teeth in these outer years. The amendment proposes, though, a fairly responsible spending increase of 2 percent or so a year over these 4 years.

One could say: Senator Sessions, your State is cutting its budget. My State is having to reduce its budget. My city is reducing its budget. My county is reducing its budget. My family is reducing our budget. Why can't you guys reduce the budget? And the answer is, we can, of course.

Some have suggested and the President has suggested that we should have a freeze on the budget, which I would support. But I am just saying to my colleagues, last year our discretionary spending accounts had double digit increases; if we pass this amendment so that we have a statutory limit of 1 to 2 percent increases for the next 4 years and it is subject to a two-thirds vote point of order in the Congress if there is a proposal to go above that on the basis of some emergency need, I think we will have a much better chance of making the kinds of tough decisions to contain this ever-growing spending level than we have been doing in the last several years.

The Omnibus appropriations bill that passed last year increased Federal spending 12 percent in 1 year. That is a lot. At 7 percent, your money will double in 10 years. At 12 percent, the spending in those accounts would double in 6 or 7 years, no doubt about it, unless something is done about those trends.

I think this legislation Senator McCaskill and I have offered will get us there. I was pleased to see that 17 Democratic Senators voted for the bill because I think there is a growing bipartisan consensus that we can do better.

A 2-percent containment in the growth of spending will not cause the United States to sink into the ocean. We are still going to exist. The American people are still going to have a government in Washington. There are still going to be bureaucrats here to take care of us if we just have a 2-percent growth in the discretionary account instead of 12 or whatever that number was last year.

I note that the President suggested freezing some of the accounts. Though

there are some very significant gimmicks in it that make it much less tight than it would appear from his State of the Union Address, it still indicates that the President himself knows we have to reduce our spending, and in some of these accounts we could easily freeze them with no damage to our Nation. I salute him for that.

This bill would create spending limits, not based on what Jeff Sessions says the limit should be, but these are the limits in the President's budget, that first 5 years of it that he proposed and that Congress passed last year. We would be simply saying this would be a hard limit on how much we can spend. Now if we need to spend more than that on an emergency, we would have to have strong support in the Congress to create an emergency designation to spend above that. We have been able to do that many times in the past when a true emergency arrived.

Some say: Jeff, you are focusing too much on the discretionary spending. Entitlements are bigger--Social Security, Medicare, those kind of things--and they are a bigger problem than discretionary spending. Well, there are three reasons we have to act on discretionary spending. One is that while entitlements, such as Social Security and Medicare, are large, they actually have a net surplus right now. In fact, Congress raided $137 billion from Social Security in fiscal year 2009 to pay for other things, such as the $800 billion stimulus package that we passed--that Congress passed--last year.

Of course, a $137 billion Social Security surplus won't pay for the Congress's $800 billion stimulus package, so where did the rest of the money come from? We borrowed it on the world market, on which we are paying interest. And what about the Social Security surplus; is that free money? No, it is not, because Social Security is heading to default. When we take the Social Security surplus into the U.S. Treasury and spend it on increasing discretionary spending by 12 percent, we give them back a debt instrument, an IOU--a Treasury bond.

I am told they are in some location in West Virginia. I am sure the chairman of the committee knows that but I want to go out and see them. They have notes out there, Treasury bills, evidencing the debt of the U.S. Treasury to the Social Security Administration. As soon as Social Security goes into deficit, it is going to call those notes. So it does not make much difference whether you borrowed it from Social Security or you borrowed it from the public. The interest rates are very similar, too. The government pays interest to Social Security and Medicare, when Medicare has a surplus.

It is projected that Congress will raid another $90 billion in 2010-- this year we are in--to pay for things such as this omnibus bill that is on the floor: for increased transportation and HUD funding, which went up 23 percent; create more funding for the State and foreign operations accounts, which went up 33 percent this year, for a record $1.4 trillion deficit last year, and a projected $1.4-plus trillion for fiscal year 2010. All of that was driven not by deficits in Medicare and Social Security but from a discretionary spending account.

Our appropriators are always saying the problem is all Social Security and Medicare. But the truth is, almost without exception, we have had surpluses in those accounts and we are spending that to supplement our general fund spending. We give evidence of debt back to our seniors from Medicare and Social Security, which the actuaries tell us, without any doubt, will soon be in deficit. We are going to call those notes, and the Treasury will have to come up with it.

So there is no free lunch. Nothing comes from nothing. If you spend money you don't have, you borrow it from somewhere. You can print money, I suppose, and devalue the currency. But everybody has the value, and the money in their pocket is devalued. It is the same as a tax. There is no way to do this in a free way. We have been irresponsible, and I think the American people are correct.

When I go to townhall meetings, what can I tell them? Oh, we didn't do anything wrong. The Senate and the House, we have been handling your money fine, my fellow Alabamian. We have done great. Don't complain. Don't get mad. You will get over it.

We have an $800 billion interest payment coming up in 2019 and our children and grandchildren are going to pay that. Yet when Senator Bunning asks that unemployment insurance be paid for out of this unspent $800 billion stimulus and not add it to the debt, which our grandchildren will pay, he was able to say with some personal conviction--with 42 grandchildren--that he wasn't going to vote for it, and he didn't. He didn't support it and he didn't agree to let it pass without an objection. He said we should have paid for it, and we could have paid for it out of the stimulus.

Another reason I think we need to focus on discretionary spending is because, unlike the entitlements, such as Social Security and Medicare, discretionary spending has overhead. There is some, but really very little overhead in Social Security and Medicare. And we can do better. I know Chairman Baucus has worked on Medicare overhead. I don't know how much can be squeezed out of Social Security overhead; not a lot, because most of it is that check that goes out to seniors, who count on it every month. But there is overhead in discretionary spending--all the things we spend our money on. Trust me, I have been in the Federal Government; I have worked there. I know it can be made more efficient.

This past year, we increased spending on the Department of the Interior and EPA by 17 percent total. I think the EPA account went up 33 percent. In 1 year they got a 33-percent increase in their budget. And by the by, this does not include any of the $800 billion stimulus funds that were allocated--about half of which has gone out. It doesn't include that. EPA got money out of that, Interior got money out of that, highways got money out of that--large amounts. We are seeing unprecedented increases in spending in these accounts.

Consider the Department of Agriculture. I remember people criticized President Bush for spending too much money on Agriculture. If you look at his Agriculture budget over the 8 years he was President, it averaged less than a 2-percent increase. Last year, our Agriculture budget--not counting the stimulus package, which sent a large amount to Agriculture--increased 15 percent. I always try to support the Agriculture budget, but I could not support that. That would double the entire agriculture spending in, what, 5 years, at compounded increases. It is not responsible. We have to do better.

The American people, I think, are upset. This recent CNN poll asked a tough question of the voters in America: Which of the following comes closer to your view of the budget deficit--the government should run a deficit if necessary when the country is in a recession and at war, or the government should balance the budget even when the country is in a recession and is at war? Sixty-seven percent said balance the budget, you guys. Because they have heard these excuses before. They have heard all of it before. What they are seeing is red ink as far as the eye can see, with record deficits above anything we have ever seen. That is what I am hearing when I go out and talk to my constituents. And frankly, I am glad I don't have to defend having voted for this stimulus package. I am glad I don't have to defend the $700 billion Wall Street bailout, and $182 billion going to AIG. They sold off one of their most profitable companies, or are talking about it, I saw in the paper today, and they are going to bring in $35 billion. They are going to use a chunk of that to pay down some of that $182 billion debt. But if they keep selling off what they have, how will they have any money to pay the rest of it? I think they are not going to pay the rest of it.

Finally, I will add that spending billions, adding billions to the baseline budget, makes a big difference. I made this chart for the DOD appropriations bill. It is an interesting little chart. I hope my colleague can pay a little attention to this weird, fine print chart. It shows what happens when there was gimmicked up on the bill an $18 billion add-on, all unpaid for. There was $18 billion added to the Defense bill. If this gets in as baseline spending, which is what it tends to do, then next year when you advertise how much you increase the Defense bill, you have this $18 billion in and it adds up, so that next year it is not just $18 billion, it is

the $18 billion additional money that is in the baseline from the previous year and then you add another $18 billion. Let's say, hypothetically, you jack it up each year by $18 billion, and the net deficit is $36 billion; and then next it is $36 billion plus $18 billion; and the next year it is $54 billion plus $18 billion; and the next year it is $72 billion plus $18 billion. You carry that out to the tenth year, and it is $162 billion plus $18 billion, or $180 billion extra for the Defense budget in 1 year, which is about $990 billion over 10 years.

So an $18 billion addition, or failure to contain the growth in a discretionary account, has tremendous ramifications over the years. It is this kind of psychology that has led us into this mess. Some of our appropriators and others in this Congress, I think, have felt a thrill if they can beat the limit on their account. If they have been given an account, and they get $80 billion or $100 billion to spend they can figure a way to gimmick it up $18 billion or $5 billion or $7 billion, and they can maneuver it through and then tell you when the bill hits the floor: Well, if you don't vote for it, Sessions, you are against agriculture and people back home are going to attack you because you voted against agriculture. And I say: Well, Mr. Senator, you put too much money in there. I can't vote for it; there is too big an increase. Therefore, you are either for agriculture or you are against agriculture.

What they said to Senator Bunning down here the other night, when he said unemployment insurance should be paid for, was: You are against unemployment insurance. You do not want people to have any unemployment insurance. That was absolutely false. They repeated it over and over and over again. But he stood like a solid rock and he didn't give in. He said: I am not agreeing to it because you could pay for it, and it is increasing the debt on my 42 grandchildren. He didn't agree to it.

Well, every now and then somebody stands up in this Senate and says: I have had enough. I am not going to say yes this time. I respect him for the courage he showed.

The Committee for a Responsible Federal Budget, which is a bipartisan group in DC, issued a report not long ago that said that freezing all nonwar-related discretionary spending next year could save us $60 billion in 1 year, and it will set up a new baseline that would save us--as this chart which creates a new baseline mentality shows--$600 billion over 10 years. That is a lot. Even in Washington, $600 billion is real money. On the other hand, the committee stated that if we allow discretionary spending to grow at the projected rate of GDP growth instead of inflation, it would cost us $1.7 trillion more over the next 10 years.

This is a nonbiased group. I don't think anybody would fundamentally disagree with that. So it does make a difference how much money we spend on every single account, on every single funding in an appropriations bill that comes through this Senate.

Can we get bipartisan support for having a tougher line and containing spending? I think the answer is absolutely we can. Why is there a conflict? The simple fact is the 5-year binding caps that were passed in 1990 had broad bipartisan support. In fact, a number of currently serving Republicans voted for them and 10 of our currently serving Democratic Senators did also, including Senator Reid, our Democratic leader, and Senator Inouye, the chairman of the Appropriations Committee. He voted for them in the 1990s.

If we think this through, we have every reason to believe we can get there. The 5-year spending cap that passed in the 1990 budget deal had even stronger bipartisan support. It passed again in 1997. I know Senator Baucus was here then, and it passed 85 to 15, with 44 currently serving Senators supporting it, and 26 of them were Democrats. Senators Reid, Durbin, Conrad, and Inouye all voted for them. If we could do it in 1990, and again in 1997, there is no reason we cannot do it now. In fact, I and my staff have met with numerous groups across the political spectrum, including the Brookings Institute, the Committee for Responsible Federal Government, the Urban Institute, the Progressive Policy Institute, the Concord Coalition, and the U.S. Chamber of Commerce--everybody we met with has said getting a handle on discretionary spending is essential.

Although AARP, the Association of Retired Persons, initially expressed opposition to the amendment, I believe we have addressed their concerns. Their chief concern was that we would not separate defense and nondefense spending, which would let the defense spending raid nondefense accounts. However, we have separated them, so that is not a danger.

Of course, one criticism some might give to the bill is that it raises the threshold for waiving--breaking the spending limits from 60 Senate votes to 67 Senate votes, and they say that is just too restrictive. But we have to raise this threshold because we have a 60- vote situation now and we have been able to muster 60 votes to pass every kind of possible emergency bill, and some of those clearly were not emergencies. It takes 67 votes in this Chamber to make a change to the Senate Journal, but we can max out the Senate's credit card with 60 votes. Something doesn't seem right about that. I think, with the seriousness of our situation, this would be a good step.

Furthermore, the fiscal year 2010 budget resolution already accounted for about $10 billion per year in emergency spending, which we have allowed to remain in this amendment. Any emergencies for which that is inadequate should be able to receive the support of 67 Senators--if we have an emergency. In fact, all the disaster relief emergencies, those kinds of emergencies since the emergency designation was created in 1990 to try to contain spending, have received support of more than 67 Senators. Isn't that interesting? All of our emergency designations for hurricanes and earthquakes and fires and storms and the like have received more than 67 votes. So I think it is just not a good argument to say we can't respond to a legitimate emergency.

The prospect of massive Federal spending is hurting jobs and growth. In a recent editorial in the Wall Street Journal, Stanford University economics professor Michael Boskin stated:

The explosion of spending, deficits and debt foreshadows

even higher prospective taxes on work, saving, investment and

employment. That not only will damage our economic future but

is harming jobs and growth now.

China and other countries may not be able to keep financing our debt in the future even if they would like to--which I really think they won't. Professor Allan Meltzer, a well-known scholar on the Federal Reserve and monetary policy, noted in a column in the Wall Street Journal that our current and projected deficits are too large relative to current and prospective world savings to rely on other countries being able to finance them for the next 10 years. In other words, there may not be enough surplus money in the world to buy these debt instruments we are going to have to issue. In fact, a recent Washington Times editorial entitled ``Spending to a Depression'' notes that, since China and other countries are trying to reduce their holdings of dollars, we will have to rely more and more on U.S. banks to buy our bonds, which will decrease capital available for lending to businesses.

On an airplane today, coming back from Alabama, I read an article that made reference to the fact that when the Federal Government puts out this much money and interest rates become higher than they have been. They are currently extraordinarily low, and banks are now buying Treasury securities at 3.6 or 3.7 percent interest for 10-year Treasury notes. Instead of loaning to local businesses, banks can get the money from the Fed at less than 1 percent and they can buy a Federal Government debt instrument for 3.5 or 4 percent and not have to loan it to some businessperson who might be a higher risk. We are crowding out resources necessary for economic growth. This is a reality.

In a Budget Committee hearing on budget reform on November 10, former Comptroller of the Currency and GAO head David Walker testified that by 2040, 30 years from now, we will have to double taxes just to keep up with current commitments. Can you imagine that? The way we are spending, we are going to have to double taxes in 30 years. He stated that in 12 years, interest will be the single biggest line item in the entire budget, even assuming interest rates do not change from today's

low rates. But they are going to go up. Everybody knows that. Some are predicting the kinds of interest rates we had in the late 1970s. I truly hope that does not occur, but many people believe we do not have any idea how high interest rates could surge when the whole world, including Europe and other places, is spending money it does not have and attempting to borrow in the marketplace to have that happen. Mr. Walker also said that deficits are the public's largest concern by 20 points, in opinion polls.

In a Financial Times editorial in May of last year, Mr. Walker warned that the United States is in danger of losing its triple-A credit rating. Moody's made that clear. Moody's stated that the United States is in danger of losing its triple-A credit rating. Pierre Cailleteau, the chief economist at Moody's, stated that, unlike several years ago, ``Now the question of a potential downgrade of the U.S. is not inconceivable.'' Under the most pessimistic scenario put forth by Moody's, the United States could lose its top rating in 2013--3 years from now.

I was very pleased we had strong bipartisan support for the amendment previously. By allowing us not to apply these budget limits we passed last year to the current year, it gives some relief to our Members of the Senate who complain that next year we will start cutting spending but we should not this year. We will give a little bit there, although it will mean we will not save as much money for sure. But I really believe we need to pass this legislation. I truly hope we can. We only need three or four more votes to make it a reality. I count now, with the ones who voted for it before and a new Senator in the body, we will have 57 votes. We need 60. The situation has not gotten any better, and I am hoping my colleagues will look at it afresh and that we might be able to reach that number. It will make a difference. It made a difference in the 1990s and led to an actual surplus. I believe it could help us again this time. We have much more serious problems this time. We have more challenges this time. But it could make a very significant difference in our spending level. It would really be a statement to the entire financial world that we are beginning to take some steps and that next year we are not going to have 12 percent increases in spending for discretionary accounts but we are going to hold it to the 1- or 2-percent increase level. I think that might have some psychological improvement in our entire financial condition.

I apologize to the fine chairman of the Finance Committee for taking this long, but I really believe it is an important issue. I am so hopeful we are getting close to getting the votes to take this positive step.

I yield the floor.

Mr. President, did the Senator make a budget point of order?

I thank the Senator.

Would the Senator yield for a question?

The Senator from Illinois is very eloquent in his advocacy. But I think he is avoiding the question posed by Senator Bunning, who simply says he is prepared tonight to fund the programs that you wish, to have them go forward.

As I understand it, is it not true he said that if you take this $10 billion, I think it is, that is required to fund this program, and you fund it out of the $400 billion unspent from the stimulus--a large part of it was supposed to be for this very purpose--that he would let the bill go tonight; that what he objects to is not doing that, and which, in effect, means--does it mean that the debt will be increased again tonight by another $10 billion.

Will the Senator yield?

We are well aware that the Democrats have a sizable majority in this body, and if the Democratic leadership, including yourself, is committed to not paying for this and taking care of this appropriation by borrowing additional money from the world on which we pay interest, then it is likely to be a futile act to have this vote.

He is asking you to step to the plate, as I understand it, is he not, and say: Join with me and let's pay for it, either through the stimulus or some other way, and let's not keep adding debt because that is what the American people are asking. And I ask you, are you not hearing that from your constituents?

I thank the Senator from Illinois for allowing me to ask those questions. I think the Senator from Kentucky is speaking on behalf of the conscience of a lot of Americans, a majority of Americans, if they heard this debate. He is doing it as a matter of principle. I know he has no desire to see people not receive unemployment compensation. He is willing to support that. He simply is saying that enough is enough.

Madam President, I wish to share a few thoughts on a matter of concern; that is, our national security and the procedure by which we are handling people we arrest who are attacking this country. It will be a bit of a follow-on to what Senator Bond of Missouri had to say. I disagree with my distinguished colleague, Senator Durbin, the assistant Democratic leader in the Senate. He is a member of the Judiciary Committee. I think he is wrong about that. I serve on the Judiciary Committee, too, and I would like to share a few thoughts.

First, there has been a full-scale attempt to assert that President Bush tried most of the terrorists or terrorism-related cases that developed over the years in the normal civilian courts. That is true to some degree. I notice that in the 195 cases Senator Durbin said were tried in the Federal courts, he counted the Unabomber and Terry Nichols, one of the ones who blew up the Oklahoma City Federal Building. There is a big distinction: The Unabomber was not officially at war with the United States, had not declared war on the United States as al-Qaida has, and the United States had not declared war on him or on Terry Nichols, who was unknown, I suppose, to anybody at the time he committed that crime and was tried. A lot of the other cases deal with such things as aiding a terrorist by providing money to some terrorist organization that supports terrorism, violating various

complex Federal laws, and they are tried in Federal courts. They are American citizens, and they are tried here. That is the reason some of the cases that have been cited were tried in Federal court.

Another reason of significant import that cases were tried in Federal court rather than in military commissions was not because President Bush and his staff desired it but because we ended up with full-scale challenges of the military commissions as they were set up originally after 9/11. It took some time to get them set up. They were challenged. The U.S. Supreme Court concluded that a number of procedures conducted in the military commissions did not meet constitutional muster, did not comply with international agreements that the United States was a party to, and they said: You have to stop. So the military revamped what it was doing. The Congress passed the Detainee Act to legitimize the military commission trials and make sure it complied with the Supreme Court so we could get on with it.

We had some 5,700 people in Guantanamo. It was never the plan of the Bush administration, ever, to try those people in civilian courts. In fact, Congress appropriated the money. We built courtrooms with video cameras and security at the Guantanamo base and prison. We had them set up so trials could be conducted, press people could come and see the trials, subject to national security questions that may arise, and do those trials in that fashion.

But after President Obama got elected, he directed that Attorney General Holder evaluate whether we should do that anymore or not. First, he stopped them--he issued an order to stop it--and then he asked that a review be conducted. Mr. Holder conducted a review and he decided, and that report was, it would be presumed the people being held in Guantanamo--many of whom, most of whom were captured on the battlefield in Iraq and Afghanistan and other places in that area of the world--would be tried in civilian courts. This was an absolute reversal of that.

Last year, I offered legislation that was passed by both Houses of Congress and signed by the President that said, if you are part of al- Qaida, you are presumed to be at war with the United States, and it is not necessary, in a military commission trial, to put on all kinds of testimony, take weeks to prove we are at war with al-Qaida. That is simply already a fact; we have declared war. Congress has authorized the use of military force against al-Qaida, and they are attacking us. That is what war is.

So John Brennan, the President's Deputy National Security Adviser, which apparently in this administration is a pretty big position--I guess these kind of personal Presidential staff people are what you make of them--has been very public. He has made a series of statements which demonstrate this administration has learned no lessons from their mishandling of the Christmas Day bomber--Umar Farouk Abdulmutallab--who was captured on Christmas Day, attempting to blow up a plane. Not only did Mr. Abdulmutallab have recent intimate knowledge of terrorist operations in Yemen, but, in fact, he came directly from Yemen, having been provided a bomb by al-Qaida, as they claimed credit for and apparently he has acknowledged.

He was an operative of al-Qaida. He had no legal claim to protections of the American criminal justice system, in any case. Even if he had been a citizen of the United States, which he was not a citizen, he had no right to be tried in civilian court in the United States because he was an agent and an operative and an unlawful combatant directly connected with al-Qaida. So this is a big deal. This is a matter that has to be analyzed and thought through, and I am concerned the administration is not listening.

The combination of these factors about his background made his capture a unique intelligence opportunity--one of the most important opportunities since 9/11 because al-Qaida had moved a large part of its operation to Yemen, using it as a training base. We did not know enough about it. It is very important we learn everything we can about how they are operating in Yemen, who the leaders are, and how they could be attacked and neutralized. So the decision to treat him as a civilian was very wrong.

The Department of Justice immediately began to treat him as a common criminal being investigated by the FBI. They gave him his rights after 50 minutes. In truth, colleagues, as a prosecutor myself, he should have been given his rights, probably--normally, you would expect them immediately. There may be some exceptions that could have allowed this not to occur immediately, but, normally, when a civilian is arrested and you ask him a single question, that individual who is in custody is entitled to Miranda rights then. Miranda rights are not just that you have a right to remain silent. Miranda rights say you have a right to remain silent, and we will appoint you a lawyer. You have a right to have one, and we will appoint you one if you don't have the money. People tend to clam up when they are told that.

So they offered him an attorney and did not treat him as the rare intelligence asset he was. That decision, it is indisputable, I truly believe--and this is not politics we are talking about--jeopardized the kind of fresh, timely intelligence that saves lives and prevents further attacks on the homeland of our country.

Mr. Brennan says one of the reasons the administration classified Abdulmutallab as a civilian was because he was captured on U.S. soil. This comment is truly startling and makes no sense. As Deputy National Security Adviser to the President, Mr. Brennan ought to be aware that because Abdulmutallab is an al-Qaida operative, he is an unprivileged enemy belligerent--in our common, more current definition of the term-- and, thus, he is automatically eligible for a military trial.

Indeed, the amendment I offered last year to the Military Commissions Act would permit this administration to do this without even having to reestablish the obvious: that al-Qaida is at war with the United States. So for the President, Mr. Holder or Mr. Brennan to persist in arguing that the law or past precedent somehow justified their treatment of Abdulmutallab as an ordinary criminal is wrong.

But Mr. Brennan has gone further than simply confusing the law. He has confused reality. In his recent op-ed in USA Today, he defiantly declares the administration made the right call on Abdulmutallab and that providing captured terrorists with civilian due process, civilian lawyers, and the right to remain silent has no negative impact on our ability to gather intelligence.

I dispute that. That is totally illogical. I don't know how many cases Mr. Brennan has prosecuted--not many. I prosecuted thousands; supervised them and tried them myself--but there is no doubt that you lose intelligence when you appoint a person a lawyer and tell them they have a right to remain silent. We are virtually the only country in the world that does this. It is not considered a constitutional right. It is something the court thought would be a good idea, to keep people from being abused by police, and so they set up this rule. It is not part of fundamental due process. It wasn't even a rule until 50 years ago. We never did that. Canada doesn't do it, France doesn't, Germany or Italy. We don't have to give them.

Mr. Brennan says: ``There is little difference between military and civilian custody other than an interrogator with a uniform.'' Not so. He argues: ``The suspect gets access to a lawyer and the interrogation rules are nearly identical.'' That is absolutely false.

I have been disappointed at the response the Attorney General has given to members of our committee, but when the National Security Adviser says something such as that--and I confronted him with it in a hearing earlier and he persists in making that kind of statement.

Mr. Brennan has also said previously that ``there are no downsides or upsides in particular cases'' and that because we are a nation of laws, criminal courts are the preferred venue. Not so--at least that this is a preferred venue. We are a nation of laws, and our laws and international law allow for the trial of unlawful combatants in military commissions. Attorney General Holder admitted that himself in a hearing when answering questions asked of him. I said: Mr. Holder, the decision to try these people in civilian court rather than military commissions is a policy decision, and basically

he said yes to that. It is not required under our law.

I can tell you--and not with speculation and it is not a theory but a fact--that criminal defendants will routinely stop talking and providing information when you give them Miranda and appoint them a lawyer. The first thing a lawyer is going to do, even in a case such as this, is to advise his client not to make any more statements, if he has made any. If he says he wants a lawyer, the questioning must stop until one is produced. That is what it means to try a person in civilian court. It is different.

You better believe terrorists who are trained to exploit our system will do everything in their power to use that system against us, if we let them. When Khalid Shaikh Mohammed--mastermind of the 9/11 attack, that so horrible day--was captured, he immediately asked for a lawyer. He already knew. But he wasn't given one. Instead, he was interrogated at length over a period of time as a military combatant. These interrogations revealed critically important information that helped foil other attacks that could have been levied against the United States.

When Abdulmutallab was questioned, he was questioned for only 50 minutes before being given a lawyer, and then he stopped talking. So we are told: Weeks later, he started talking again. Don't worry, Jeff. Quit complaining. Five weeks later, now he has started talking. We got his daddy to come in, and maybe we can do a plea bargain with him or something and he will talk.

Well, you can do that if they are in military custody. That is not only done in civilian custody, No. 1. No. 2, what did they have to promise him to get him to provide information? Did they promise him leniency? Did his lawyer demand it? Did his lawyer demand a written plea agreement before he allowed him to speak?

That is what will happen in most cases. I don't know what happened in this one. But we are not talking about just this case. We are talking about the policy of whether it is better to treat somebody as an unlawful combatant if they come from al-Qaida or in a civilian trial in America. Fresh, immediate intelligence is awfully valuable many times, and it can grow stale very quickly, although other intelligence can be extremely important, even if the person you have captured waits 6 months to give it to you. You just never know. But the truth is, the more intelligence, the sooner obtained, enhances our national security. Things that are unnecessary, that are not required by law, that delay the obtaining of intelligence and delay the amount you get is damaging to our national security.

So that is the policy question we are dealing with--this decision to put vitally important intelligence at great jeopardy. Nevertheless, Mr. Brennan insists that military interrogations are the same as those provided to civilians. But when a civilian asks that the interrogation stop, it must stop at that moment. This is not true in the military situation.

Well, let me back up a little bit. A person apprehended on the battlefield, a prisoner of war, who is a lawful combatant, wearing a uniform, fighting the United States in a lawful manner, according to the laws of war, cannot be excessively interrogated, cannot be tried for any crime but can be held until the war is over, whether it is 1 year or 10 years. That is the law of the world and the law of the United States. But if they are unlawful combatants, as these malicious, devious, murdering al-Qaida thugs are--they do not wear a uniform, they do not comply with the laws of war, they attack innocent civilians deliberately to spread terror--they are in violation of the rules of war.

I thank the Chair, and I ask unanimous consent for 3 additional minutes.

Madam President, I withhold--noting the absence of a quorum request.

Madam President, I wish to share a few thoughts on the nomination of Judge Joseph A. Greenaway to the Third Circuit Court of Appeals on which I think we will be voting later today. I look forward to supporting his nomination. He has a good record as a district court judge. I think almost all of my colleagues, if not all, will support him. But I wish to take a moment to correct the record regarding some allegations that have been made by my Democratic colleagues regarding the processing of this nomination.

Sometimes we have controversial nominees, such as Mr. Becker. And if anyone would care to listen to Senator Enzi's comments, they will see why there are legitimate concerns about that nomination. Some of the nominees are not controversial and should move forward at a steady pace for confirmation in the Senate. Most of the nominations that have been submitted for positions in the Federal Government in the Department of Justice and on the Federal courts have moved forward rapidly without controversy. If one is controversial, the Senate should take its time and give full consideration of it.

Last week my colleague from New Jersey accused the Republicans of ``objecting'' every time the majority leader tried to schedule a vote on Judge Greenaway. I have to say my colleagues are seriously misinformed and I am not happy to be unfairly criticized for holding up the nomination. Let me explain exactly what happened.

As Chairman Leahy has acknowledged, the majority leader, Senator Reid, did not seek Republican consent to proceed with this nomination on the floor of the Senate until 2 weeks ago, and that was late on a Friday afternoon. The Republicans were able to clear the nomination and allow it to move forward with a modest time agreement before a final vote and allow the kind of discussion that we are having today.

Ironically, the Judiciary Committee, however, was not even able to process Judge Greenaway's nomination to move forward with it, which was submitted to the Senate in June by President Obama. President Obama submitted the nomination in June, but the committee could not move forward with a vote until September. Why was that? The reason was one of the home State Democratic Senators down here complaining failed to send in their blue slip. Senator Leahy is not going to move a nominee without the consent of the home State Senators--and I respect him for that. He is the Democratic chairman of the committee, but he has a policy, as his predecessors all had, that he is going to give the home State Senators the opportunity to approve a nominee before he even has a hearing in committee.

The nominee was delayed 4 months by a failure of the home State Senators--or at least one of them--to acknowledge their approval by returning what we refer to as a blue slip. After that occurred, the committee promptly moved forward with a hearing and unanimously voted for Judge Greenaway's nomination in October.

Today is the time the majority leader has chosen as the time he desired to bring it up for a vote. He could have brought it up in October, November, December, or January. He chose to bring it up now. I am not one who thinks it is my fault that it has not been brought up.

The same thing happened to Judge Beverly Martin to the Eleventh Circuit. She was unanimously approved by the committee and had the support of her home State Senators. Months went by before she got her vote. It was unanimous to confirm her. It wasn't anybody's fault but the Democratic leadership's fault.

My colleagues always complain about holding up nominees, and they themselves are not moving them in an expeditious manner. Sometimes the President is slow to make nominations. As a result, we get complaints that it is the Republicans' fault. It is just not.

If we have an objection--a serious objection--that should be respected, we should state it, and we should bring it to the floor and discuss the nomination, as is occurring with Mr. Becker.

Compare that to the unreasonable delays of judicial nominations that President Bush sought. For example, Shalom Stone was nominated for this very seat. The reason it is vacant and the reason it is being filled today is because Shalom Stone was blocked. Stone was nominated in July of 2007 and was basically pocket-filibustered by the Democratic majority. He never received a hearing in committee. He never even received a hearing in committee. His nomination, therefore, lapsed at the end of President Bush's term. That is how Judge Greenaway was nominated.

On average, President Bush's circuit nominees waited nearly a year for confirmation--a year on average for circuit court nominees.

As for Judge Greenaway, he, like many of President Obama's nominees, I am pleased to say, has openly rejected the empathy standard.

In his response to a followup question, Judge Greenaway stated this about the controversial empathy standard:

Empathy cannot play a role in a judge's consideration of a

case or in determining what the law means. I have told

lawyers who appear before me that as a human being, I may

have empathy for their client, but as a judge, I have none

because that is not my job. The pure exercise of empathy in

decisionmaking would lead to unsound and inconsistent

decisions.

That is a solid statement of what I think most judges believe, Republicans and Democrats alike. But, unfortunately, it is not the philosophy stated by the President of the United States when he said he was going to look for empathy in nominees to the bench.

Empathy is contrary to the oath a judge takes, which states:

I . . . do solemnly swear that I will administer justice

without respect to persons, and do equal right to the poor

and to the rich, and that I will faithfully and impartially

discharge and perform all the duties incumbent upon me . . .

That is the oath they take to be impartial. We need judges who are honorable, intelligent, capable, and who understand their role to enforce the laws as written and to be impartial as they carry out that duty.

People talk about their backgrounds, their experiences--what are they saying? They are saying that my background, my ethnicity, my religion, my rural or urban environment allows me to see things in a way that may be different and, therefore, I am empowered to bring those ideas, concepts, and philosophies to my decisionmaking process, which I suggest is very much akin to saying I believe I can bring my biases to the decisionmaking process. They are directly contrary to the American ideal of an impartial judge, a neutral umpire who calls balls and strikes without regard for which team they are for or not for.

These are lifetime appointments. We look at these nominations carefully. These nominees must demonstrate they will follow the plain meaning of the law and not allow their own personal biases and prejudices to influence their decisionmaking process.

Based on his testimony at the hearing, his assurances and answers to followup questions, I believe Judge Greenaway will do that. I am proud to support him as I have supported most of President Obama's nominees. But we do have a responsibility to analyze these nominees' records, to hold fair and rigorous hearings, to ask for additional time, if that is necessary, to ensure each nominee is given the scrutiny that Congress is required to give before the elevation to a lifetime appointment by which they are no longer subject to review by the people of our country. We allow them to be an independent branch, but we have to insist that they be independent and objective as they render their opinions.

I yield the floor.

Mr. President, on rollcall 20, I voted ``no.'' It was my intention to vote ``aye.'' Therefore, I ask unanimous consent that I be permitted to change my vote as it will not affect the outcome.

Mr. President, a number of things of importance have

happened with regard to our financial condition over a period of years. Actually, this week the President, in his State of the Union Address, made some reference to the seriousness of our financial condition. I think his comments were far too weak, and he insufficiently advised the American people of how serious our condition is.

Yesterday, in the Budget Committee, Mr. Elmendorf, who is the CBO Director selected by our Democratic majority in the Congress and whom I think tries his best to do the right thing day after day and give us the right numbers to make our plans upon, told us a lot of things that were very troubling. He was just repeating that the dire predictions and dire assessments they have made previously, which are, if anything, on track and getting worse. They haven't misjudged the numbers and how bad our debt is increasing, but, in fact, if anything, they may have underestimated them.

I will just quote one thing in his statement to us yesterday. He talked about analyzing the American debt or how much money we owe as a percentage of the size of our economy--as a percentage of GDP, gross domestic product. That is one way economists like to look at it. He pointed out that the numbers might look a little better, but there are a number of things that are on the table that are likely to occur. I think he is exactly correct about that; if those things occur then the situation realistically is even worse. He analyzed if the tax cuts were made permanent and if the alternative minimum tax is indexed for inflation. The President proposed to make some of the tax cuts permanent, and Members of Congress are reluctant to see taxes increase substantially, which will occur if the tax cuts aren't extended but are allowed to expire. Each year we address the alternative minimum tax because it is falling ferociously on middle-income Americans, and disproportionately on families with children. Every year, we indexed it and fixed it so it doesn't impact so many people, but for 1 year only. But when the CBO tries to predict the budget deficit, they have been assuming that the AMT would go back to its high rate, and we would have more income coming in because we are taking these increased taxes from American families.

However, instead of fixing it permanently, which would score a loss of revenue over 10 years, we only fix it 1 year, and the CBO has to assume based on what the law is that it would not be fixed again and that these taxes will be imposed on Middle America and we will have more revenue and make the budget numbers look better. But I don't think we are going to not fix AMT. Frankly, we may not be able to 100 percent fix it, in my view, but that is what the votes have been each year, to fix it 100 percent.

He notes that if annual appropriations keep up with the increasing gross domestic product, as they have over the last 20 years, which is about where increases in spending has fallen, the deficit in 2020 would be historically large as a percentage of GDP, and the annual deficit would be large as a percentage of GDP. Then he said:

The debt held by the public would equal nearly 100 percent

of GDP. This is a level of debt that most economists say has

the ability to create instability and a lack of confidence in

the United States Government and it would have adverse

economic ramifications throughout our economy. In other

words, once the Nation reaches this high of a level of debt,

we have a very serious problem, and it is very difficult to

extract yourself from the cliff with those kinds of huge

deficits.

I think the President should have talked about that in real detail. He did say on the discretionary accounts, which amount to about 18 percent of our budget, he would like to have a freeze, and he made some exceptions and said that freeze wouldn't be this year, though. Instead, it would be next year because that is the way things work, and I wish to talk about that for a minute. I think our Congress needs to be more serious about it, and the President needs to be more serious about it.

Senator McCaskill, my Democratic colleague, and I offered an amendment yesterday that was voted on, and I think 17 Democrats joined with all but one Republican to vote for it, and it would have helped. It would have said the budget we passed--which I will explain to my colleagues how we violate it--the budget we passed that allows the 1 percent to 2 percent increase in discretionary spending accounts would be enforced. In other words, there would be a cap on our spending. So we put in this amendment that we offered the actual dollar amounts in the budget we passed last year--or basically the Democrats passed last year--and we wouldn't go above that. It would take a two-thirds vote to go above those top line numbers. That would work. This was done in 1990 and in 1997. They had statutory caps, not just budget caps, and those statutory caps led to a consistent reduction in annual deficits to the point that by the late 1990s we were in surplus for 4 years from 1998 through 2001. We had surpluses for the first time in decades. Then we allowed the statutory caps to expire and we got back on this spending track that has put us in this deficit situation that exceeds anything we have ever done before in the history of the American Republic; nothing close to it, except World War II.

But when the war ended, we promptly got back on the right track and brought the economy back into sound shape. I don't see us heading in that direction. It is going to take bold leadership.

We received 56 votes to put these statutory caps in, but it took 60, so it is not the law. I am disappointed about that. If you want to know the truth, I think the leadership in the Senate didn't mind how many voted for it, as long as it wasn't 60, because it crimps their style.

The President, during his State of the Union Address, made some confusing statements about his commitment and the depth of it to dealing with the problem. He gave some lipservice to the freeze, which I think I am going to support, and I will back him on that all I can. I hope he can do that. However, there were other things that were contrary to a freeze. For example, he said we were going to take money from the Wall Street bailout, the TARP money as we call it, and he said:

I am proposing that we take $30 billion of the money Wall

Street banks have repaid and use it to help community banks

give small businesses the credit they need.

Well, that sounds OK, except that is $30 billion more. Well, we took it from the TARP money that they paid back, so that doesn't count. That doesn't count? It does count.

At the budget hearing yesterday, Senator Gregg, the ranking Republican and former chairman of the Budget Committee, who is an expert on this and very respected, asked this question of Mr. Elmendorf.

The budget Chairman:

There has been a lot of talk about the fact that the TARP

money is available to spend somewhere else. First, the law

doesn't allow that.

Parenthetically, I would note that Senator Gregg put in the language. He foresaw that when the banks paid back the money they were given as part of this financial bailout, it shouldn't be used as a slush fund to spend. He wrote it in there. So he said:

First, the law doesn't allow that. It is supposed to reduce

the debt. But I want to clarify the fact that there is no

TARP money. All of this money has to be borrowed, right?

Every cent of the TARP money is borrowed from China or

somebody else, right?

Mr. Elmendorf answered:

There is just one pool of government money and everything

else is sort of accounting treatments to keep track of

various purposes. But, yes, if more is spent through the

TARP, that is just more that's spent and more that's

borrowed, and more that goes to the Federal debt.

So there is no free money in the TARP repayments. We borrowed the money, every penny of it, to give to those banks. When they pay it back, we have a debt to pay down.

That is what we were supposed to do. That is what Senator Gregg put in the bill. Now they claim they have some free money paid back by the banks, and we can just spend it. That is what the President said, and it is not accurate. That is wrong, and it doesn't prove to me that he understands he has to fight every day over every billion dollars to contain the natural tendency of this body to spend.

Mr. President, I point out that even though the President talked about a freeze, he talked about $30 billion for banks, not big banks, but this free money he apparently suggests has now appeared as a result of the repayment of the loans they got in the financial bailout. Some of the banks didn't even

want the loans. They forced them to take it, basically. Some have been told they should not pay it back. They don't want them to pay it back, when the banks are ready to pay it back. At any rate, some of that is paid back. We borrowed the money to give it to them. When it is paid back, it is not extra, free money. We always assumed that most of this money would eventually be paid back.

I point out as to how big a need it is to spend $30 billion out of this money for community banks instead of big banks, to give small businesses credit. Well, what did the community banks say? They don't want the TARP.

According to the Christian Science Monitor yesterday, the headline is: ``Community Bankers to Obama on TARP: Thanks, But No Thanks.'' Community bankers say they have plenty of money now. That isn't the problem with loaning money. It says:

``The whole TARP program is perceived as a misadventure by

the public,'' says Dennis Jacobe, chief economist for Gallup,

Inc. in Washington. ``I think it is greatly disliked.''

Now we are getting the money back from the big banks, and now the other bankers said they don't need it. Also, as we talk about money, the President is proposing a second stimulus package. The first one passed was scored at $787 billion, the largest expenditure in the history of the American Republic--a breathtaking amount of money, so large that most people have not been able, in any realistic way, to apprehend how large it is. I just point out that the State of Alabama, one-fiftieth of the Nation, an average-size State with over 4 million people--our budget, the general fund, is about $2 billion.

Senator Warner was Governor of Virginia and did a fabulous job and was well respected for his work. I am sure they didn't have a $100 billion budget. I don't know what it was, but it is a lot less than that.

We spent over $700 billion on one vote on one day, out the door, and every penny of it was borrowed because we were already in debt. So if you spend more money, you have to borrow it. However, now it is not $787 billion. Based on some of the entitlement language we put into the bill, it is now at $862 billion. Some people said they would not vote for a bill over $800 billion, so they got it under. In truth, surreptitiously, they put in guaranteed benefits for certain programs, and those have now claimed the money, and it is over $800 billion. I think it is $862 billion. That is a pretty big overrun--$75 billion. Just like that. We didn't vote on it really.

Now we have stimulus II. This is what the President said:

Now the House has passed a jobs bill that includes some of

these steps [referring to clean energy and high-speed rail].

As the first order of business this year, I urge the Senate

to do the same. . . .

I thought we had a freeze on spending. Let me tell you what the House's so-called jobs bill does. It costs $150 billion. Spending. Another $150 billion in spending, with $28 billion for highways, and about $2.5 billion for railroads, and $2 billion for clean energy.

Well, if I recall, we were told that the $787 billion stimulus bill was designed for what primary purpose? Jobs and to rebuild our crumbling infrastructure. They talked about roads and bridges that have fallen in and interstates getting old and needing all this work. Do you remember that? That is how the bill was sold by this administration. I don't want to be just partisan carping, but that is what they told us.

Amazingly, less than 4 percent of the stimulus bill that we passed-- the $787 billion package--went to highways and infrastructure, less than 4 percent. I complained about that. I remember making speeches on it because jobs are created when you build a highway. At least you have something permanent that benefits the Nation--perhaps replacing a bridge that you are going to have to replace anyway, and you get a benefit for everybody from improving our infrastructure, although that is not a philosophy that will always stand us in good stead. We were trying to create jobs, and at least we should have focused on infrastructure.

Now they are coming back with $150 billion more--$28 billion for highways and $2.5 billion for railroads. That is not good management of money. That is not good spending.

The President went on to say this:

According to the Congressional Budget Office, the

independent organization that both parties have cited as the

official scorekeeper for Congress, our approach would bring

down the deficit by as much as $1 trillion over the next two

decades.

He is talking about the health care bill that did not pass. He said it would bring down the deficit by as much as $1 trillion. That is not accurate. The CBO on December 19 of last year, trying to get out these scores as fast as they could, said it would cut the deficit by roughly $1 trillion. Then they revised it 1 day later. The official score was that it would reduce the deficit about half that amount.

As I explained on the floor, that is a product of miscalculation-- deliberate miscalculation. Let me explain.

The way they get this score in the first 10 years, for example, is they said it would create a surplus of $132 billion if we would pass this health care bill. Isn't that great? You add 20 million people to the rolls, give many of them subsidized health care, and you are going to reduce the costs and you are going to save money. That is a pretty good deal if you can get it. But, of course, you cannot get something for nothing. Nothing comes from nothing.

What happened was, Medicare scored that if you cut Medicare benefits, as the administration proposed, and you increase Medicare taxes, as they proposed, you create extra money in Medicare and you extend the life of Medicare. Medicare is going into bankruptcy, but this would extend the life of it. That is an honest and correct score.

The Congressional Budget Office utilizes what it calls the unified budget. They score the whole budget as to how it comes out. The amount of money is increased to the government through Medicare, and they score that as a gain. Since the health care bill would not take effect or pay benefits until 4 or 5 years later--although the taxes increase now--then over 10 years, it would create a surplus of $132 billion. Sound good? But I read the small print of the CBO letter and the small print of the Medicare letter.

The Medicare Chief Actuary told us that if you raise taxes and you cut spending in Medicare, it will extend the life of Medicare. But he had a parenthetical line in there. He said: Of course, you cannot simultaneously use the Medicare savings to fund a new program and claim it does both. You would be spending the money twice. How logical is that? But that is what they did. He used this phrase: ``Although the conventions of accounting might suggest.'' What he is saying is, Medicare scores the money. They scored it accurately. Mr. Elmendorf and CBO score it as a unified budget. They said you have more money for Medicare and spending in the first 10 years of the health care plan--it is less than that--so you have a net surplus, right? Looks good. Sounds good. But that is not so because there is a bond, a debt instrument from the U.S. Treasury back to the Medicare Trust Fund. As soon as Medicare starts going into deficit again, they are going to cash in those bonds and the government is going to have to then borrow the money on the open market.

According to the CBO, it would not increase the deficit but it would increase the debt of America. When we raised the debt limit yesterday-- and my colleagues voted to do so--the internal debt between the Treasury and Medicare, counts as part of the Nation's debt. It is an internal debt. It is not scored the same way. But sooner or later, when Social Security and Medicare start cashing in and claiming their money, the U.S. Treasury has to do something. What they are going to do and what they have been doing is convert those debt instruments and go out and sell bonds in the marketplace. Whatever the interest rate, they have to pay to China, individuals in the United States, and others who buy those Treasury bills. We are selling so many of them it is no doubt going to drive up the interest rate.

These numbers are not real. My concern and my criticism of the President's address is not that he said we ought to have a freeze. I salute that, and I will support that. But he did not indicate the severity of the crisis we are in.

Two years ago, President Bush's last year, he had a $460 billion deficit which I think at that time was the highest deficit since World War II. It spiked up

as a result of increased spending and the recession we are in. Last year, the debt was $1.4 trillion, 1,400 billion dollars, three times what it was. And this year the projected deficit is going to be almost the same, according to Mr. Elmendorf's report.

It continues this way, unfortunately, throughout the decade and will average, based on the planned expenditures and revenues as set forth by the Obama administration's budget, almost $1 trillion a year in deficits. This is why experts are repeatedly telling us it is unsustainable. We will be maintaining deficits twice as large as anything we have ever seen for the next decade.

Let me show what it means in one area that I think all of us can understand. When you borrow money, you pay interest on it. Each year, the interest we pay on the debt is one of the biggest line items in the whole budget. If the debt goes up from $5.7 trillion in 2008 to $17 trillion in 2019, which is what they project will happen, the interest rate is going to go up. It will go up even more than that. It will go up more. Interest rates are extraordinarily low as a result of the economic slowdown. They are going to go up, and they are going to hit us in the book.

Here is what CBO says will happen. In 2009, we paid $200 billion in interest on the debt. In 2019, they project we will pay $799 billion. They project an increase in rates and an increase in debt--a tripling of debt and an increase in interest rates--which leads to four times as much interest being paid over that period of time. Frankly, it does not include some other factors in there also.

I have to say to my colleagues, I am sorry we did not pass the statutory cap we offered this week. But I was encouraged by so many of our Democratic colleagues who saw fit to support it. I think it is indicating there is a recognition in this body that we are going to have to do some tough things. We cannot keep spending like this. There is always some excuse for it. We cannot continue it.

Think about this. The Federal Highway Program a few years ago, before we had the stimulus package, was about $40 billion a year. Federal aid to education is about $40 billion a year. Other programs are in that range. It gives you a picture of what kind of dollars we are talking about. But if you add $600 billion in increased interest payments over this next decade, in 1 year $600 billion more, this is going to crowd out spending for all kinds of programs that we wish to fund.

We are going to be in a dilemma. How much more can we borrow--100 percent of GDP? More?--without destabilizing our currency or cutting spending? And it is going to crowd out spending on items we need to be spending money on. It is going to be crowded out by the interest payment which will exceed all expenditures in the budget, well above the defense budget even, the largest expenditure.

This is a stunning path we are on. Mr. Elmendorf reconfirmed it yesterday in his testimony before the Budget Committee. I am worried about it. The American people are worried about it. I don't think they know it is as bad as it is, but they know it is not good. They know there is no free lunch. They know nothing comes from nothing, and that we have to pay for what we do around here. We cannot continue to borrow, borrow, borrow, stimulate today and maybe 1 day in the future we will get around to paying it.

I offer to you, in 2019, there is no plan to pay down a dime of the debt. It is just to pay the interest on the debt. In 2019, we will add $1 trillion more to the debt of America. It is going up almost $1 trillion a year, and these are outyears, according to CBO analysis. Nothing is perfect that far out. It could be better; it could be worse. They are not projecting a recession in the outyears; they are projecting steady economic growth. It could be worse.

We have to do better. This is not a matter that is going away. The American people instinctively have it right. They are telling us in rallies and tea parties: You guys have to do better. You are being irresponsible. I think they are fundamentally correct. They have every right to be upset with us. We can do better. We must do better. And I hope we will.

Mr. President, I thank you for the opportunity to make these remarks. It is something we are going to have to continue to work on. We cannot continue this path. If we put our mind to it, we can fix this situation. It is not a challenge beyond our capacity. But make no mistake, financially I doubt we have ever been in a situation that requires as much clarity and as much determination as is going to be required over the next decade, and some painful decisions are going to have to be made. They are going to have to be made.

That means containing spending and resisting the temptation to create more and more new programs that inevitably cost more than they were projected to when they started.

I thank the Chair, and I yield the floor.

Mr. President, I would like to share a few comments on the Sessions-McCaskill discretionary caps amendment that would limit spending to the budget items and budget levels we passed.

Before doing so, I would like to say I was disappointed last night that the President and my good friend and very effective leader of the Judiciary Committee, Senator Leahy, have politicized a very important decision of the Supreme Court of the United States. The Justices didn't take an oath not to reverse bad precedent. They swore an oath of fidelity to the U.S. Constitution, and the first amendment guarantees the right of free speech.

For over a decade, I warned against this, and others warned this legislation we were passing violated the first amendment of the U.S. Constitution. In fact, one of the supporters of the amendment, Senator Feingold, at one point offered a constitutional amendment to amend the first amendment because he recognized this campaign restriction on spending during an election cycle ran afoul of the Constitution, but at some point they decided to go forward with it.

I would say two things about it. How it happened was this: During oral arguments on the showing as to whether a corporation which had produced a film about one of the Presidential candidates could show that film before an election and which was being blocked by the court-- where they said you can't show a film about an election candidate, and they objected, saying: This is free speech--the Supreme Court asked this question during oral argument to the government's lawyer who was defending the statute we unwisely

passed, and the question was: Well, Counsel, what if a company produced a book and wanted to publish a book, would this statute prohibit that? What was the answer? Yes.

Well, the Supreme Court said: Wait a minute. This is a serious thing. So you--Congress--passed a law that prohibits a group of American citizens from publishing a book that might have something to do with an election? This is a big deal. We have laws that protect pornography and all kinds of things, but the first amendment was written for free political speech.

Anyway, I don't want to go into it today, I have talked a lot about it before, but I wanted to push back a little. I am very disappointed because my colleague and the President are attempting to politicize a very significant first amendment issue that we knew existed when this bill was passed. The New York Times, which supported it, was a corporation. They can write editorials on the day of an election. But if the Ford Motor Company gets tired of GM getting billions and billions of dollars from the Federal Government, can they not run an ad and say: Don't do this.

Anyway, we will be voting soon on a very important piece of legislation, and so I am pleased to be working with Senator Claire McCaskill, my Democratic colleague from Missouri, to say we need to do better about spending, and we do.

What happens in this body is, we too often find ways to get around the budgets we pass. Last year, we passed a budget that I thought spent too much, but it passed and it is our budget and it calls for spending over the next 5 years to have around 1 to 2 percent growth. But, historically, we have been violating that. Historically, we find this gimmick, this way to go above that. It is going above that, and I can demonstrate how baseline increases in spending compound themselves over the years and get us into serious financial trouble. What we need to do is stay with our budget.

We need to have an option to go outside the budget or above the budget in case of an emergency--there is no doubt about that--but we have too often been able to get around the budget through manipulation and through emergency spending designations. Our bill has a number of Democratic Senators who are supporting it, and I think most Republicans will support it. I think we have an opportunity to pass it, and it would provide some integrity to our process.

The American people aren't trusting us. I think they are right not to trust us and I am prepared to debate that. I can show they have a right not to trust the budget numbers we put out because we don't stick with them. So this amendment would say that for 5 years we will take the very numbers that were in last year's budget--the budget we are operating under today--and we would place them in a statute by number. The amendment would say how many millions of dollars we will allow to be spent this year in defense numbers and nondefense numbers. When we do that, if there comes an attempt to violate the budget and to spend more, then a Senator could raise a point of order and it would take a two-thirds vote of the Senate to override that point of order.

I think that is good, sound legislation. Make no mistake, it will put some teeth in the budget. There are those of us who know we have given in too often to the desire to spend more because we get multiple demands from our citizens and we sometimes are unable to say: Well, I do need to help you, but I am going to have to cut over here. What we do say is, I can't reduce anything. Now that would make those people uneasy and unhappy with me. But I want to help this person, so I will just increase my spending and go over on the debt and over the budget limit.

I am of the belief that this legislation, though modest, is very consistent with the numbers President Obama talked about last night. In fact, I think it is almost in perfect harmony with the freeze he suggested should happen last night. This would actually allow a 1- to 2-percent increase, as I said, in defense or nondefense spending. This would be the kind of thing that would be in harmony with the President's proposal.

The American people are cynical. We say these things--the President says these things, Members of the Senate say these things--but our spending, when we look back at it, doesn't do so well. Last year our domestic discretionary spending, the money we actually controlled in the Senate, increased 12 percent, which is a number above what we can realistically justify. Remember, we also had, on top of that, the stimulus package. A lot of that money hasn't been spent--maybe a third of it. That is pouring into the economy.

Now is the time for us to get hold of baseline spending. I believe we can do it. These are some of the objections we have had about it. Would it prevent the Federal Government from responding to emergencies? No. I point out the emergency spending bills that came up before Congress were consistently passed with huge majorities. For example, the Defense bill on the war against terrorism and tsunami relief, 100 to 0; on supplemental veterans health care, we had 99 to 1; the Katrina spending was passed by unanimous vote; the second emergency for Katrina, 97 to 0; another Katrina vote, 93 to 0; supplemental appropriations for disaster loans, no budget point of order even raised; another Hurricane Katrina supplemental, 80 to 14; Emergency Economic Stabilization Act, 74 to 25.

The votes have been high. But every one of these things does not need to be passed perhaps at the level initially proposed. Sometimes you may support Katrina or some other supplemental and you think the numbers are too high and you are going to object and the appropriators can come back with a smaller number and it would pass. I say that is the process we work with.

We are violating the budget act too much. I urge my colleagues to consider this legislation and vote for it. Would it prevent Congress from adequately funding missions in Iraq and Afghanistan? The answer to that is no. The 67-vote threshold would not apply in Iraq and Afghanistan and our war against al-Qaida because the amendment explicitly states this rule does not apply ``in the case of the defense budgetary authority, if Congress declares war or authorizes the use of force,'' which we have done in these situations.

In wartime it does not constrict our ability. We still have to vote for it and make sure we have the vote for it, but we don't have to have a supermajority for votes. I think that is the important part of it.

Some would say you are attempting to balance the entire budget by reducing nondefense discretionary spending, which is a relatively small part of the budget. I would say we know this will not fully balance the budget, but I can demonstrate, and have, that the growth in spending that is occurring on the discretionary accounts in the last several years has far exceeded the growth of Medicare and Social Security, and it is crowding out our ability to fund Medicare and Social Security. It is a threat to us, to those programs, as well as to the long-term fiscal status of our country.

Finally, I point out that I just left the Budget Committee hearing. Mr. Elmendorf, the CBO Director, testified today and indicated that, if several more things that are likely to occur, which he did not use in his calculations, take place the number would be much worse, much higher. He said we are facing a critical economically threatening force of debt that we have to act better about. Chairman Conrad and Ranking Member Gregg said the same thing in their opening statements.

I point out what he reaffirmed, their score, that under the present path we are on, we now pay, in 2009, $200 billion per year in interest. That is what we paid to people who loaned us money, the public debt. In about 2019, 10 years, that debt will triple from $5.7 trillion to over $17 trillion, and the interest we pay in 1 year on that debt is $799 billion.

When you think about it, the Federal Highway Program is about $40 billion or $50 billion. The aid to education is not much more than that. This is going to crowd out all kinds of spending that so many of my colleagues would like to see happen. We are either going to have massive increases in taxes or major reductions in spending just so we can budget and pay for the interest on this debt. He says it is unsustainable. This is a nonpartisan person.

The Concord Coalition has a great focus on excessive spending in this

country. The Concord Coalition supports the amendment that Senator McCaskill and I are offering; so does the Committee for a Responsible Federal Budget, a great bipartisan group that has been watching budget issues for many years and is composed of some of the previous budget directors and experts on these matters, a very responsible, respected group. The Heritage Foundation, a solid group of conservative scholars who have written persuasively about the dangers of debt, as well as the National Taxpayers Union, which represents individual Americans who realize the threat to our country from soaring debt and bigger and bigger spending, all support this legislation.

I think it is the kind of bipartisan legislation that will send a message not just to our Congress that we are going to contain spending but also to the whole world that we are putting in place some things that indicate we are going to be serious about avoiding this path we are on.

This is not made up. This is based on present commitments of the U.S. Government in law based on projections of income that we will receive and the spending levels that are surging. I hope our colleagues will seize on this. I think it will help the stock market. I think it will help our own focus. It would be a statement by Senators that we are serious about this, and we will work together to get it done. I urge my colleagues to support it.

I yield the floor.

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

Mr. President, I, too, would like to share my concerns in opposition to Mr. Bernanke's reappointment, and I think my colleague, Senator DeMint, summed it up pretty well.

One of the debates has been, did the Central Bank, which is not a free market activity, fail--or did as people say the market fail. I agree with him. I do not believe it is exactly correct to say that. The Fed dabbles in the market in an attempt to manipulate the market. One of the debates has been that Mr. Bernanke allowed the interest rates in 2002 through 2005 to remain too low, which caused the bubble and which caused the burst and put us in this fix.

The complaint has been that he violated the Taylor rule, which is the rule that would advise how interest rates should be set by the Central Bank. He made a speech in early January of this year that I think was defensive and went to some length to say he did not violate the Taylor rule and that low-interest rates did not cause the bubble. So it is one thing to make a mistake; it is another thing to make a mistake and refuse to acknowledge the mistake.

I will just say as background, the Wall Street Journal said the minutes of the Fed Board meetings prior to his becoming Chairman, when he was merely a member of the Board, indicate he was the advocate for lower interest rates and actually warned of deflation during this period which was wrong.

Mr. Taylor responded in the Wall Street Journal. I will just quote what he said:

This rule--[the Taylor Rule] calls for central banks to

increase interest rates by a certain amount when price

inflation rises and to decrease interest rates by a certain

amount when the economy goes into a recession. My critique,

which I presented at the annual Jackson Hole conference for

central bankers in the summer of 2007 is based on the simple

observation that the Fed's target for the federal-funds

interest rate was well below what the Taylor rule would call

for in 2002-2005.

Mr. Taylor is the author of it. He warned of it in the summer of 2007. Mr. Bernanke is insisting, just a few weeks before this, that he did not violate the rule. A little later, Mr. Taylor goes on to say:

In his speech [on January 3], Mr. Bernanke's main response

to this critique was to propose alternatives to the standard

Taylor rule--and then to use the alternatives to

rationalize--

I would say to justify--

the Fed's policy in 2002-2005.

Mr. Taylor goes on to say:

In one alternative, which addresses what he describes as

his ``most significant concern regarding the use of the

standard Taylor rule,'' he puts the Fed's forecasts of future

inflation into the Taylor rule rather than actual measured

inflation. Because the Fed's inflation forecasts were lower

than current inflation during this period, this alternative

obviously gives a lower target interest rate and seems to

justify the Fed's decisions at the time.

So Mr. Bernanke is saying they took his rule and they altered it. They did not use as the factor actual interest rates but what they predicted interest rates to be, and, of course, their prediction was wrong.

Mr. Taylor goes on to say:

There are other questionable points. Mr. Bernanke's speech

raises doubts about the Taylor rule by showing that another

version of the rule would have called for very high interest

rates in the first few months of 2008 [after the bubble

burst]. But using the standard Taylor rule, with the GDP

price index as the measure of inflation, interest rates would

not be so high--

As Mr. Bernanke was suggesting--

as I testified at the House Financial Services Committee in

February 2008.

That is Mr. Taylor's view.

Mr. Taylor goes on to say:

Mr. Bernanke also said that international evidence does not

show a statistically significant relationship between policy

deviations from the Taylor rule and housing booms.

Mr. Bernanke is defending himself still. He said international studies do not show that our deviation from the Taylor rule had anything to do with this mess. But Mr. Taylor responds this way:

But his speech does not mention that research at the

Organization for Economic Cooperation and Development in

March 2008 did find a statistically significant relationship.

Mr. Taylor goes on to say:

Mr. Bernanke claimed that ``Economists who have

investigated the issue have generally found that, based on

historical relationships, only a small portion of the

increase in house prices earlier this decade can be

attributed to the stance of . . . monetary policy.''

He is talking about the Fed policy, that they did not have anything to do with the increase in housing prices. Mr. Taylor calls Mr. Bernanke's hand. Mr. Bernanke was not right in that statement. Mr. Taylor says this:

But two of the economists he cites--Frank Smets, director

of research at the European Central Bank, and his colleague

Marek Jarocinski reported in the July/August issue of the St.

Louis Fed Review--

That is the Federal Reserve publication in St. Louis--

They found--

evidence that monetary policy has significant effects on

housing investment and house prices and that easy monetary

policy designed to stave off perceived risks of deflation in

2002-2004 has contributed to the boom in the housing market

in 2004 and 2005.

Mr. Bernanke is saying economists around the world do not agree, and that is not accurate. As a matter of fact, they found just the opposite. So remember, the Wall Street Journal said he was the easy money advocate at the Fed. Mr. Greenspan may have been Chairman, but during the early part of the decade, Mr. Bernanke was advocating these low interest rate policies; and they were wrong, and they did lead to a boom--at least it was a significant factor in the boom, and Mr. Bernanke is not acknowledging that. I do not appreciate it.

I also am very disappointed he supported President Obama's form of a stimulus package, saying:

The incoming administration and the Congress are currently

discussing a substantial fiscal package that, if enacted,

could provide a significant boost to economic activity.

However, according to a CNN poll released just yesterday, 74 percent of Americans believe at least half of the stimulus package was wasted, and 63 percent believe the projects in the plan were included for purely political reasons and will have no economic benefit.

I will just say that this stimulus package--$800 billion, every penny of it going to our deficit and increasing our debt--could only be justified if it was the most carefully crafted package that created jobs, but it was not. I knew it at the time, and so did many others, that this was not a jobs-creating package. It was a political package put together by the President. It rewarded a lot of his supporters, but it was not the kind of jobs package we desperately needed. But Mr. Bernanke supported it, and now we have $800 billion added to our debt and very little job creation.

So, Mr. President, I will yield the floor and just conclude by saying that I do not think this should be rewarded. I know a lot of people are worried that somebody else might be worse. But I have not seen from him the kind of gravitas, the kind of stability of leadership, the kind of consistent message to the American people about the severe plight we are in and about his plan to get us out of it.

Isn't that what he should be doing? Shouldn't we know what he, hopefully working with the President, would do to get us out of this mess? I have not seen it and, therefore, I do not believe we have any burden of maintaining him. In fact, I think this supports the argument that he should not be maintained.

Mr. President, I thank the Chair and yield the floor.

Madam President, I wish to share a few remarks on the reappointment of Mr. Bernanke as Chairman of the Federal Reserve Board. I do

believe we should state our views about it. I stand in opposition to his nomination; I intend to vote against it.

First, I believe the financial debacle this Nation is desperately attempting to work its way through did not have to happen. That free economies have a tendency to boom and bust, there can be no doubt. But sound Federal economic and fiscal policy that promotes stability and a sound dollar can mitigate against the excesses of market cycles and keep them from ratcheting out of control, as we have seen here.

What role did Mr. Bernanke play before the bubble burst? For 3 years, he served on the Federal Reserve Board, where much of our Nation's financial policy is set and, in 2006, he followed Mr. Greenspan as Chairman. The American people have a right to ask: How did he perform during that period? Did he see this crisis coming, did he give warning, and did he take any actions that could have ameliorated or avoided the catastrophe that has befallen us? The minutes of the Federal Reserve Board during the critical 2003 time period show he was what the Wall Street Journal called ``the intellectual architect'' of the loose money policies that, as the Journal notes, kept:

. . . monetary policy exceptionally easy for far too long

as the economy grew rapidly from 2003-2005. He imagined a

``deflation'' that never occurred, ignored the asset bubbles

in commodities and housing, dismissed concerns about dollar

weakness, and in the process stoked the credit mania that led

to the financial panic.

That is what the Wall Street Journal said about it, and I think that has to be considered an accurate and fair comment. Only responsible actions, perhaps painful to us now in the short run, founded on mature understanding of the forces that actually control world economies will do today. The time for artificial government policies and spending and stimulus is past. Nothing comes from nothing. Reducing deficits significantly will be necessary and will be painful, but only such a policy, resolutely executed, will inspire real confidence that we are on the right track.

Transferring massive private debt to massive government

debt, as we have done, tripling our total national debt in 10

years--as we are on the path to do under the President's own

budget--is wrong and unacceptable. Experts and the normal

person know such policies will only end poorly. We need the

kind of responsible policies the bipartisan team of Fed

Chairman Paul Volcker and President Reagan executed, policies

that led eventually to 20 years of sound growth. But, for

sure, stabilizing an economy in turmoil was difficult for

them and for the American people at the time, for a while.

But the people understood sound policy was needed in the

early 1980s, and they stayed with their strong leaders

through the tough times. The people knew then we had acted

irresponsibly--as we have today--and they knew a steep hill

had to be climbed to get us on sound footing. They met the

challenge.

I am not seeing that kind of leadership today. President Reagan knew he would be criticized, but he knew this great Nation would rebound. He had confidence in our people and in free markets. He did not, for one moment, believe expanding government would lead to economic growth.

During this time of economic turmoil, I don't think we are hearing that kind of economic straight, honest talk. We are told not to worry; that we are going to spend our way out of debt. We will have the government stimulate the economy. Well, if that is so easy, why don't we do it every day--just spend, spend, spend forever? If that doesn't work, we can have another stimulus package, they tell us. Deficits don't matter. Debt doesn't matter. We will worry about the consequences of that later. The President of the European Union said this strategy was the economic ``road to hell.'' And I think that is an embarrassment to the United States. The Chinese are aghast. But this is the plan of the President and Mr. Bernanke--spend it now, worry later.

Mr. Bernanke's nomination is before us today. He was the prime architect of the policies that got us into this mess. He did not see it coming. He supported the disastrous $800 billion stimulus package, every penny of which was mainly social spending--had to be borrowed, and it has not produced the kind of jobs and growth we needed because it was not focused sufficiently on job creation.

Mr. Bernanke also supported the $182 billion bailout of AIG, and now we know most of that money was used to compensate AIG's counterparties, such as Goldman Sachs and Deutsche Bank at 100 cents on the dollar, which I think is unthinkable. Last November, the TARP inspector general, Neil Barofsky, reported that the Federal Reserve did not believe AIG's counterparties posed a systemic risk to the economy, which frankly calls into question the entire justification for the bailout.

Amazingly, Chairman Bernanke has learned little from these errors, and that worries me. Tragically, he is supporting or acquiescing in policies that I think have proven not to work and are contrary to sound common sense. If there is any dispute about his leadership, I call my colleagues' attention to his speech on January 3. There he plainly refused to acknowledge his loose money policies were a significant factor in creating the bubble and the inevitable bust. Incredibly, he relied on half-truths to justify his abandonment of the Taylor rule, a formula that has proven to work to contain the temptation for excessively low interest rates.

While anyone can make a mistake, becoming too insulated, too arrogant, too political, and coming to believe tried and true principles no longer apply in the new world of today, is especially dangerous. He has not admitted his mistakes nor is he calling us to the tried and true. Sound money, low taxes, solid, steady growth, and increased productivity based on the historic principles of a free economy--principles that are as immutable as the law of gravity--are the foundation of economic growth, not government spending and Fed maneuvering.

At one of my townhall meetings, a man offered that his daddy always said, ``You can't borrow your way out of debt.'' How true. Shouldn't we be hearing such common sense from the Fed? You can't produce something from nothing. There is no free lunch. Somebody will pay. Our ``masters of the universe'' think these rules don't apply to them--a most dangerous arrogance indeed.

Right now, the American people, our constituents, are the ones paying. It is time for the ``masters of the universe'' who are responsible to pay--those who rejected the tried and true; those who believe that since we are blessed with their leadership, with their brilliance, America doesn't have to move forward steadily and soundly; that the old verities do not apply and, if things get a bit dicey, why by exercising their skill and exceptional knowledge they can fix it before anything bad happens. Did that happen before, in 2007? They were not so smart then.

I think these are the most dangerous leaders--the ones who know the rules but believe they are so brilliant that they may ignore them.

Mr. Taylor, the one of the rule, laid it out in the Wall Street Journal on January 11, 2010. I don't see how anyone can seriously argue that keeping interest rates so low, maintaining easy money, during the 2002-2005 period did not play a significant role in the bubble and the resulting bust. Not only was Chairman Bernanke intimately involved in the creation of these disastrous policies, as was President Obama's Secretary of Treasury Geithner, but he maintains today his violation of the Taylor rule was no harm no foul.

Chairman Bernanke should be rejected for his grievous previous mistakes that helped cause this economic debacle, and he should be rejected, even more emphatically, for his failure to learn from his mistakes.

In December, former Chairman Alan Greenspan testified before the Senate Committee on Homeland Security and Government Affairs, saying:

The challenge to contain this threat is more urgent than at

any time in our history. Our nation has never before had to

confront so formidable a fiscal crisis as is now visible just

over the horizon.

That is a real warning.

We need a courageous Chairman of the Fed, of the quality and firmness of Chairman Volcker, one who average Americans, and importantly, our top corporate leaders, will recognize as being a consistent voice and force for sound financial policy--one who knows he is not so brilliant that he can cease to be bound by the iron laws of economics and markets.

We need a courageous Fed Chairman who has the firmness of Mr. Volcker to lead us through this period. I have not

seen that in Mr. Bernanke and will oppose his nomination.

I yield the floor.

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

Mr. President, I send an amendment to the desk and ask for its consideration.

The amendment is proposed by myself and Senators McCaskill and Kyl.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, our fathers and forefathers made heroic sacrifices so that we one day might enjoy the blessings of liberty and prosperity. Indeed, we have had prosperity through much of our country's history. Their courage during World War II changed the world, making possible the greatest run of economic growth in history. The character and courage they displayed remains an inspiration to us. And there are important lessons to be learned from the way this ``greatest generation'' faced adversity.

We have recently been put to the test ourselves. We were--and in many ways continue to be--faced with a national crisis in the form of a historic and severe recession. So what did we do? We could have learned from President Reagan and Paul Volcker, a Democrat who was then Federal Reserve Chairman and is now working with President Obama. They took the political heat in the short run so the free market could correct itself and emerge stronger on the other side.

Instead, I think we flinched. We tried to limit the immediate pain by mortgaging our children's future. We borrowed hundreds of billions of dollars to finance our standard of living today. We took money from the future so we can spend it today. We tried desperately to mitigate the downturn of a huge economy, even when we know economies are cyclical and do have booms and busts.

Every penny we spent on the stimulus package--$800 billion--and other special spending was borrowed and must be paid back. In truth though, there is no plan to pay the debt back--only to pay the soaring interest for as far in the future as we can see. So this is not an academic problem, nor is it just a question of public financing and governmental roles.

As former Federal Reserve Chairman Alan Greenspan said about our debt in December--and I think it is a stunning statement--

The challenge to contain this threat is more urgent than at

any time in our history. Our Nation has never before had to

confront so formidable a fiscal crisis as is now visible just

over the horizon.

The policies adopted by Congress and the President have set the Nation now on a dangerous course of spending and borrowing. The budget crisis we face is so severe, the mountain of debt so high, that it threatens to undermine the foundation, as Mr. Greenspan said, of our economic strength and our prosperity. This is reality.

For the first time in our Nation's history, our generation stands to bequeath to our children a nation that is less economically sound, less fundamentally strong, and less secure than that which we inherited. And it is not necessary. We can do better if we act today.

It would be an unthinkable tragedy and really a moral failure for us to pass on a less strong country. We have responsibilities not just to our own people today but to those who will follow us in the years to come, and we would have no one else to blame but ourselves.

The numbers tell a grim story. In fiscal year 2009, our government spent $1.4 trillion more than it took in through revenues. That is the largest deficit in our Nation's history, dwarfing those of previous years. Scaled to the budget of a typical family, the government operated like a household making $50,000 but spending $83,000. That is how much more spending we carried out than we had revenues.

Common sense tells us this is unsustainable, and almost every expert you ask would use that very word:

``unsustainable.'' Yet we expect to run deficits over the next decade that average nearly $1 trillion annually--averaging that and not going down. According to the Congressional Budget Office, in the 8th, 9th, and 10th year, the deficit continues to increase.

By 2019, we will owe our creditors, including nations such as China and Japan, more than $15 trillion--three times the total debt of America that existed last year. In 2019, the interest payments we will make on the debt we owe outside the government--the public debt to foreign countries and individuals--will be $799 billion, almost $800 billion in one year. That will be up from $202 billion in interest payments last year. $800 billion is about $200 billion more than we spend on defense, and 20 times more than we spend on roads or education. We currently spend about $40 billion a year on roads, and this interest on the debt will cost us $800 billion a year in 10 years--a basis of a tripling of our debt.

That growing interest payment will crowd out our ability to fund other important government services, and it will crowd out private borrowers who will need to borrow to create jobs.

Given that we have embarked on such a spending spree, is it any surprise that the first item on the Senate agenda this year is the necessary bill, they say, to raise the debt limit to allow us to borrow more money? We have hit the limit. The government has a limit on the amount of debt it can hold by statute, such as a maximum amount on a credit card. America's credit card has a $12.4 trillion limit on internal and external debt and, incredibly we have maxed it out again. It should be a dramatic thing to boost that debt limit, but, interestingly, it has become routine.

This will be the seventh time we have done so in 5 years, and it is troubling Americans. The public is rightly angry with Washington's cavalier attitude toward spending. They know ``buy now; pay later'' catches up with you eventually. They know nothing comes from nothing. The American people know that what Stanford University economist Michael Boskin wrote in the Wall Street Journal is true. He said:

The explosion of spending, deficits, and debt foreshadows

even higher prospective taxes on work, savings, investment

and employment. That not only will damage our economic future

but is harming jobs and growth now.

The American people know that taxes are going to go up, a fact confirmed by David Walker, former Comptroller General and GAO head. He testified recently that taxes would need to double by 2040 to keep up with our current commitments.

The American people have made it clear they reject the philosophy of ever increasing debt. They reject taking on such a burden. Why? Because they know it threatens the strength of the American economy. They know it is a cloud over our efforts to rebound economically, and they want us to stop. They want us to stop.

To my colleagues, I ask: How much clearer does that message have to be? I do not think anyone doubts it. The good news is, many Senators are worried on both sides of the aisle. They are concerned about what we are doing, and they know we need to do better, and they are listening to their constituents. They will have an opportunity this week to do that by supporting this bipartisan legislation I have offered.

I see my colleague Senator Claire McCaskill from Missouri in the Chamber, who is a cosponsor of this legislation that will limit the growth of spending. So it is a simple amendment. There are no strings attached. It as a rare opportunity to impose budget discipline on a Congress that is notorious for not having any.

That is what makes people angry. Politicians talk a good game but nothing seems to change. But when it comes down to it, the politicians always seem to find a way to spend more, and the taxpayers end up holding the bill. So this amendment would help change that. It would impose, first, binding limits on the 40 percent of Federal spending we control each year, discretionary spending. The amendment would put into law the spending levels approved in the fiscal year 2010 congressional budget, which a majority of the Senate supported. It is basically the Democratic Congress's budget. It had certain limits over 5 years.

What we are saying is if you exceed those limits, then you would be violating this amendment, which seeks to control and avoid that. Those spending levels include only our budget increases that are averaging about 2 percent a year annually over 5 years. Contrast that with the 12-percent increases we saw last year in nondefense discretionary appropriations, and the 10 percent the year before.

Factoring in the stimulus, government spending on nondefense accounts actually soared by 57 percent, while State and local governments were tightening their belts, some cutting expenses.

Each year we increase spending it gets built into the baseline of our budget for the next year, and when we have an increase in the next year, it is an increase on a higher baseline, and it goes up exponentially.

For example, last year, on one bill, the defense bill, there was tacked on an $18 billion expenditure for various projects that were not paid for within the budget. It was added, paid for with debt--money we had to borrow. If we do that each year, if we add another $18 billion through that kind of budget-busting activity, it would cost the taxpayers an extra $1 trillion over a decade. It is hard to believe, but that is true. Mr. President, $18 billion one year goes into the baseline; the next year you add another $18 billion, and it is not $18 billion, it is $36 billion more than you would have spent had the first one not been spent.

I am convinced we can do better. This amendment is an important step.

Second, the amendment would require 67 votes--two-thirds of the Senate--to waive the binding caps. In other words, if we set these caps, we can waive them if there is an emergency. But it takes two- thirds to do so. Two-thirds of the Senate is a strong threshold that will keep these caps in place except in times of true emergency.

Finally, this amendment complements efforts to rein in mandatory spending programs that are expected to be insolvent in coming years. Social Security runs a surplus now. Medicare did so until the last few years. Those surpluses are being spent in our discretionary accounts. So these programs have little to do with our record deficits. It is discretionary spending, up until recently, that has driven the entirety of our debt.

Deficits for the most part come from discretionary spending, and this statutory caps idea I have proposed is tested and proven. The Budget Enforcement Act of 1990 included similar provisions that kept the growth of Federal spending low for 12 years. Its provisions were extended in 1997 because people found they were working. Congress felt they were working.

All in all, these budget rules helped to achieve four balanced budgets for 4 consecutive years, from 1998 to 2001. The key component of that, I truly believe, was these statutory caps on spending that were passed during that period.

Many currently serving Senators were in this Chamber in the 1990s and recognized the necessity. In 1997, 28 currently serving Democrats, for example, voted for these provisions, including many of the Democratic leaders in the Senate today. I submit that those budget rules are even more needed today.

As Mr. Greenspan said, we have never faced such a fiscal crisis looming just over the horizon.

I am pleased a number of organizations known for their knowledge and concern about deficits have recognized the merit of this proposal, including the National Taxpayers Union, Committee for a Responsible Federal Budget, the Heritage Foundation, and the Concord Coalition.

Budget experts Douglas Holtz-Eakin, who served under a Republican administration; Alice Rivlin, who served under the Clinton administration at CBO; and Alan Viard also back the plan. President Obama, we learned today is now talking about a 3-year freeze on some discretionary spending. This legislation would only help him achieve that goal because he can make a speech and he can propose it to Congress, but it doesn't necessarily become law. If he supports this and works to support the statement that we understand he will make in the State of the

Union Address, this legislation would be a firewall to make sure his promise isn't broken.

I say this to my colleagues: We have a budget crisis. It is a calamity so profound that it threatens our economic security. Americans across the country--in red States and blue States--get it. They are deeply concerned about the direction in which we are headed. They know the crushing debt we are incurring will weaken our country, and it will restrict the opportunities our children will have. They are making their voices heard.

A vote against this amendment would be a suggestion that a Senator is not serious about maintaining our budget caps but is looking for ways to bust the budget, get around the budget, and spend more.

I urge my colleagues to support the legislation as a strong act of fiscal responsibility that will have a good impact. In fact, I am confident it would send a message to the financial community that we are beginning to get our house in order.

While I would like to go further and be more frugal in some of our behavior around here--and I do believe we are going to have to go further than this--this amendment will ensure that the limits on spending made last year in the budget passed by this Congress will not be exceeded. It will be a firewall that will save us from our excesses. It will begin to restore financial responsibility to our Nation, a commodity of which we are in desperately short supply.

I see Senator McCaskill. She has cast a number of tough votes to question reckless spending since I have observed her in the Senate. I appreciate her leadership and courage in speaking out on this issue. If we do this, it will not solve all our problems, but I think it will make a positive difference for us. It will allow increases as the budget allows for some increases before the firewall kicks in. But it also would make it very difficult to break the budget in any significant way, unless we face a true emergency.

I yield the floor and I thank my colleague for her leadership on this legislation.

Mr. President, I ask unanimous consent that Senator Judd Gregg, former chairman of the Budget Committee and ranking member, be added as a cosponsor to this legislation.

I thank my colleague for her fine remarks.

I suggest the absence of a quorum.

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

Mr. President, I want to share some thoughts on an amendment that Senator McCaskill and I offered earlier today. I note that a number of people are anxious to vote and finish up. If and when that time comes, I will be pleased to yield the floor. The amendment we offered, which would place statutory caps on spending--and that cap level that we picked was in our budget. It is what the Senate passed in the budget last year. It represents an increase each year, which is 1 to 2 percent annually. This is a budget number basically passed by our Democratic colleagues.

So what we are saying is, let's adhere to that. If we adhere to that level of spending, then we can begin to make progress.

A similar type of statutory cap was placed in 1990, renewed in 1997, helped lead us to the only 4 years of budget surpluses in recent memory, from 1998 through 2001. After that, the statutory caps were allowed to expire. We find this was something that actually worked to help us contain excessive spending. This amendment would say that number that is in the budget for the next 5 years would be firm. We would put it in statutory language, but, of course, it can be exceeded by a two-thirds vote of the Senate, and the statute itself can be reversed by 60 votes of the Senate. It is not something that constitutionally would be firm over managing our system. It is consistent with previous actions of the Congress. It worked, and I believe it will work again.

It has been contended today, I understand, that these caps would impose limits on emergency spending that could potentially cripple our ability to respond to emergencies, such as hurricanes, earthquakes, and terrorist attacks.

Well, I just want to say that hurricanes and earthquakes and things of that nature have had huge bipartisan votes for emergency spending. For example, after Katrina, there were two supplemental emergency bills passed. The first was passed by unanimous consent. Nobody objected to it. It was unanimous. The second was passed on a rollcall vote, 97 to 0. There is no doubt in my mind that if we have a serious emergency, we will have a lot of support for responding to that emergency.

Also, one week after September 11, the Senate unanimously passed supplemental appropriations in response to that terrorist attack. So the allegation that somehow this would cripple the ability of Congress to respond to emergencies is inaccurate.

Second, it was contended earlier today that the amendment contains unrealistic spending caps that would restrict funding needed to support our forces in Iraq and Afghanistan.

That is not accurate. The amendment includes specific provisions that prevent the caps from restricting funding for our troops in a time of war. It would not block us from doing that. We are in a time of war. It just would not apply in a time of war.

We hear it said that everybody is concerned with the growth of the deficit and the need to control debt in the United States, but this amendment--the McCaskill-Sessions amendment--is not the appropriate way to attack this issue.

Let me respond to that. For fiscal year 2010, the government spent $2.9 trillion, of which about $1.2 trillion was for discretionary spending. The remaining $1.7 trillion was mandatory spending. That is what we call entitlements. That is when you get 65 and you are entitled to Medicare, and the government has to pay it whether it has any money or not. You are entitled to Social Security payments, and the government has to come up with the

money. We don't vote on it again. We already voted on Social Security to set up how much money you are entitled to get. We have to have that money. That is why it is called an entitlement.

Now entitlements--Medicare and Social Security--exceed the discretionary account, which includes defense. So of the $1.2 trillion that is in the discretionary account that we actually vote on each year, approximately $526 billion, or a little less than half, is for nondefense purposes.

This amendment attempts to reduce the deficit by constraining just 18 percent of total government spending. It can make a much larger difference than many people realize. Five-year discretionary spending caps were passed--what we are proposing today--in 1990 and 1997 with strong bipartisan support. In 1997, 44 currently serving Senators supported the caps, and 26 of them were Democrats. It made a difference. We balanced the budget in 1998 through 2001--4 years. The current majority leader and chairman of the Appropriations Committee both voted, in 1990 and in 1997, for the 5-year caps, which restricted annual discretionary spending to approximately 1 to 2 percent increases. That is basically what our legislation would do. It would contain this discretionary spending to 1 to 2 percent.

We know we are out of control. We know that last year discretionary spending increased by 10 percent, and this year it will increase by 12 percent. That is unsustainable. At 7 percent growth, your money will double in 10 years. At 12 percent growth, the amount of money we would be spending in our discretionary account would double in 6 years-- double. We are on an unsustainable growth here. Some say: Where do you come up with this money, Sessions? This limit of 1 to 2 percent is too tough.

It is not too tough. It is the budget we voted on. Actually, I didn't vote for it, our Democratic colleagues voted for it. It was their budget, and it passed with almost unanimous Democratic support. It calls for a 1- to 2-percent increase in spending over the next 5 years. That is all Senator McCaskill and I are suggesting we should do. We would make that harder to bust, harder to break it. We put in a firmer cap. If we stay on that level, and if we have an emergency, we will have to meet it. But if we stay at that level, we could end up surprising ourselves how much good we can do in the years to come.

From fiscal year 2006 to 2009, the Federal debt was increased by approximately $4.4 trillion. That is a lot. That is almost the total debt of America. We had about $4 trillion in debt in 2006, and we added, in those 3 years, $4.4 trillion. During that time, the total increase in nondefense discretionary spending was approximately $93 billion. This means the increase in nondefense discretionary spending has accounted for 2 percent of the increase in the national debt, our critics say. So it doesn't make much difference, they would say. They are correct about the surging debt, but not that this would make no difference. If it made little difference, then why are they worrying about passing it?

Restraining discretionary spending, like we did in the nineties, is the bear minimum Congress can do to be fiscally responsible, in my view. For fiscal year 2010, nondefense, nonveteran discretionary spending increased by 12 percent and in 2009 by 10 percent. Those are huge increases, not including the stimulus package. If we included the stimulus package, nondefense discretionary spending has increased 57 percent since 2008, in 2 years.

That is a stunning number. We actually increased discretionary spending by 57 percent in 2 years. The Sessions-McCaskill amendment is similar to the proposal offered by President Obama or what we are hearing he is going to offer--to freeze nondefense discretionary spending for 3 years. This would place a cap on excess. If we break through the President's suggestion and don't freeze and go above that, we hit this cap, and it would take a two-thirds vote to go above that.

Apparently, President Obama's suggestion is less spending than this bill would cap. But that is fine, we can always do less. The danger, from my experience, is that we get carried away and do more.

Some have said the arbitrary spending caps would impede the delivery of resources needed to keep Americans safe from terrorist attacks and violent crime. Such subjective across-the-board restrictions would hinder our ability to protect our homeland and secure our borders.

Well, it does allow for an increase, first and foremost. Second, our congressional process and appropriations process and authorization process should have helped us set priorities within that. It would be unthinkable if this Congress were to somehow take all that money that we need from areas to keep us safe from attack. Surely, we can make judgment decisions about that.

Another allegation is that more and more of our service men and women are returning from the battlefield, and this would restrict our ability to provide them the medical care and support they need.

This measure provides all the funding in the 2010 budget resolution. It would allow that. If additional resources are needed to care for our returning service men and women, and that has bipartisan support, and certainly if we need to be able to take care of injured and wounded, we could get 67 votes. We can do like most people do when they have a necessary expense. They trim spending somewhere else and fund the more necessary item.

Some have said it would impose a roughly $10 billion annual cap on emergency spending. Emergency spending is, by its very nature, impossible to predict. The critics say, to deliberately impede the government's ability to respond to a natural disaster or major terrorist attack is deeply irresponsible. But that is not what we do. In the legislation we proposed as an amendment, Senator McCaskill and I set up a $10 billion a year emergency fund--every year. That would be incorporated in the budget resolution, it would be contained in our amendment, and it would be restricted only by the normal 60-vote requirement on a budget point of order for emergency spending. That money would not be subject to a higher point of order, and it would not change up to the first $10 billion--which is a lot of money.

Alabama's budget, including education, is about $7 billion. So we are setting aside $10 billion for emergency funds every year, and if we went above that, we would have to have a supermajority for the kind of emergency that would justify that.

I do not think that criticism is valid. Also, some have said that recent history clearly demonstrates the folly of attempting to fix a set price for future emergencies.

More than 4 years later, the Gulf Coast is still recovering from Hurricane Katrina. Over $100 billion in Federal resources has been needed to respond to this disaster alone.

Our amendment would have no effect on Hurricane Katrina. The fact is, as I have said before, we have had virtually unanimous votes supporting funding for Katrina. I do not think that is a valid criticism. If we have an emergency, I am confident this Congress will meet it.

The recent Christmas Day airline bombing--I see my friend, Senator Leahy. Is he seeking the floor to speak? If so, I will try to wrap up.

I will wrap up. I do not want to delay the vote. It will be perfectly appropriate for him to make his remarks at this time.

But first, I will point out this chart. Why do we need to contain the reckless growth in spending? This chart shows how much interest we pay on the debt. When we passed a stimulus package of almost $800 billion, we did not have that money. Where did we get it? We borrowed it, and we have to pay interest on it.

When we have an emergency, such as Hurricane Katrina--by definition, an emergency is an expenditure for which we do not have the money and it is above our budget. Our budget puts us in deficit. Emergency spending is always deficit funded, funded with borrowed money.

In 2009, the interest we paid on our debt was $200 billion. That is the public debt. We have more debt than that. We have internal debt. Under the 10-year proposal President Obama gave us early last year, the Congressional

Budget Office concludes that our deficits will surge and that in 10 years, the interest for 1 year would be $799 billion. That is why everybody says we are on an unsustainable path. How do we get off it? Basically, we have to contain our spending. We cannot have $800 billion stimulus packages every year or two. We cannot have spending increases of 10 percent and 12 percent in basic discretionary accounts.

If we start taking firm action now, this will not happen. The debt tends to compound. Our deficits tend to compound. They go into the baseline, and then we have an increase over that the next year and the next year, and it compounds a lot more than some of our Members realize. That is why we are getting into the area that threatens the very financial viability of this Nation, as Mr. Greenspan said in December with a statement so strong about the danger we face that it would curl your hair.

That is why Senator McCaskill and I think we need to take some action. This is a proven way to do so with statutory caps. I encourage my colleagues to see it for what it is: a bipartisan attempt to be sure we do not rise above the budgetary caps that are in our budget. This amendment would make it hard to go above those levels in our spending.

I yield the floor.

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

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

Madam President, I want to share a few thoughts at this time about the Supreme Court's decision in Citizens United v. Federal Election Commission, which was announced today. Some comments were made about the decision in the Judiciary Committee earlier today, and some of those comments were critical of the decision. I just want to say that I think it is a sound decision, a decision that is consistent with our Constitution and the first amendment.

I know sometimes people are irritated by seeing ads on television. I

know politicians are not happy when people run ads against them. But this is a free country. We are not immune to criticism and people seeking to promote their point of view throughout our Nation. I think the Supreme Court's opinion today deals with the reality of free speech that simply is not going away.

In Citizens United, the Court overruled two recent precedents that had themselves undermined and were inconsistent with this Nation's long tradition of protecting political speech. In doing so, the Court recognized that political speech is protected by the first amendment regardless of whether the speaker is an individual or is acting in corporate form. Over the years, there have been some dubious arguments made under the first amendment, such as arguments that pornography, and even child pornography, are protected under the free speech clause; however, there can be no doubt that the Founding Fathers, when they wrote the Constitution, contemplated the protection of people's right to have robust a political debate. There can also be no doubt that robust political debate includes criticizing political candidates when they are running for office.

The decision today was an interesting matter. It shows how far some congressionally passed laws reach. The decision may indicate that sometimes these bills reach farther than we intended for them to reach when we wrote them. For example, the Citizens United case revolved around a film that was critical of one of the main candidates in the 2008 Presidential election. A group called Citizens United produced the film, and they wanted to broadcast it; however, under the recent so- called bipartisan Campaign Reform Act, it was illegal for Citizens United to broadcast the film during the 30 days before the election because the group had received money from U.S. corporations. Citizens United became the plaintiffs in a lawsuit and, eventually, the question of whether Congress could constitutionally prohibit them from broadcasting the film wound up before the Supreme Court.

I think Chief Justice Roberts, correctly summed up the holding of today's opinion in his concurrence. We will probably talk more about it in detail as we go forward and have a little more time to examine it, but he says:

Congress violates the First Amendment when it decrees that

some speakers may not engage in political speech at election

time, when it matters most.

Or, as Justice Scalia characterized today's holding in his concurring opinion:

A documentary film, critical of a potential presidential

candidate is core political speech, and its nature as such

does not change simply because it was funded by a

corporation.

We hear speech that irritates and frustrates us a lot of times, but we have to put up with it because it is a free country in which we live. I would not want anyone putting a film like the one at issue in Citizens United out against me, but it is a free country, and I don't think it is justified to say that Americans who come together in some corporate body can no longer speak.

I will just add that the current administration has been a bit insensitive about this matter. We had the incidents earlier in the year when an insurance company published material to people they insured that pointed out criticisms of the health care bill. The administration tried to get a federal agency to threaten them with a loss of business if they didn't stop expressing an opinion. The insurance company was engaged in a business impacted by the bill. The people they were communicating with bought this kind of insurance coverage. I think they had every right as free Americans to send out a notice that said: This is not good for our company or for you, we think.

They are not allowed to do this? They are going to be threatened by the White House with punishment if they communicate to the people with whom they do business? That is no little matter. We have to get our heads straight. The first amendment protects speech--real substantive speech--about important issues, issues like health insurance and who is going to be elected President. And it protects them regardless of whether the speaker is an individual or whether the speaker is acting in corporate form.

Justice Scalia dissented in McConnell v. FEC, a 2005 case that was reversed by the court's opinion today, and Justice Scalia has a knack for going straight to the heart of the matter. In that dissent he wrote:

In the modern world, giving the government power to exclude

corporations from the political debate enables it effectively

to muffle the voices that best represent the most significant

segments of the economy and the most passionately held social

and political views.

He goes on to say:

People who associate--who pool their financial resources--

for purposes of economic enterprise overwhelmingly do so in

the corporate form; and with increasing frequency,

incorporation is chosen by those who associate to defend and

promote particular ideas--such as the American Civil

Liberties Union and the National Rifle Association, parties

to these cases.

I agree with Justice Scalia. We cannot allow the government to suppress speech simply because it is near an election time and corporations have given some money to put it on. I think that is not healthy. In fact, I think our whole approach to constricting and limiting people in pooling their money and running ads is clearly in conflict with the first amendment.

I would just say this: The Supreme Court made it clear that all the limits we have placed on corporations giving to political campaigns were not struck down. That is a separate issue, I suppose, but the issue the Supreme Court decided in its opinion today is a very important one. We have had a debate on this issue for a long time. We have roared about it in this Senate for many years, and people have passionately argued about the first amendment and whether some of our laws mean an evisceration of it.

I used to say in my speeches that I just don't think it is right to tell an American, or even a group of Americans who come together in corporate form, that they can't buy an ad, even on the eve of an election, and say that Jeff Sessions is bad for our business, bad for our State, bad for our Nation, and ought to be thrown out of office. It can, perhaps, be a problem sometimes--if someone took out an ad like I just described I might think it is a problem--but the balancing test we use is the plain language of the first amendment, and it says that the right to free speech shall not be abridged. That right is important. We incur great danger when we say: Well, you can talk, but we are not going to let you make a political message 30 days before the campaign. You can contribute but only under our rules. A clear case can be made that the law at issue in Citizens United favored political incumbents. It gave an advantage to politicians already in office, who have an edge in obtaining individual, ``hard money'' contributions. I myself am an incumbent--I myself have been fortunate enough to receive many such contributions--but that does not change the clear mandate of our Constitution. I think the Supreme Court's opinion should be respected for the fact that it takes the text of the first amendment very seriously. The opinion addresses very fundamental questions about what power politicians in Washington have to constrict the right of Americans, either individually or corporately, to defend their interest and speak out. That freedom is fundamental to the preservation of our Constitution.

Think about it. The New York Times. What is the New York Times? Is it a corporation? Yes, it is. Can the New York Times run an editorial every day saying they don't like this party or they don't like this Senator and criticize them repeatedly? Why, sure they can. But can Ford Motor Company defend its interests? Can it run an ad and say: We are getting a little bit tired of the Federal Government giving another $3 billion to General Motors Acceptance Corporation and we don't get any money from the Federal Government to help Ford Motor Credit. Under the law the Supreme Court was dealing with in Citizens United the answer was no. That was wrong, and it threatened our Constitution. Under our constitution people ought to be free to push back and defend their interests, whether they do it individually or through a corporation. Otherwise, I think it allows us in Washington to appropriate power to ourselves--the power to benefit one another and avoid being criticized for it. I think that is the exact opposite of the robust political debate the Founding Fathers intended.

That is my two cents' worth. I think the case is one of significance. It is one we have debated here for so long. I know Senator McConnell, the Republican leader, has been so eloquent and consistent for probably 15 years in debating this issue. In many ways, this opinion validates some of the principal constitutional arguments he made.

I yield the floor.

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

Mr. President, I wish to speak on the nomination of Judge Beverly Baldwin Martin who President Obama nominated to the Eleventh Circuit on June 19. I remain at a loss as to why it has taken this long for her nomination to come before the full Senate for a vote. Judge Martin's nomination is one of the few that has had strong bipartisan support. Both of her home State Senators, Senator Chambliss and Senator Isakson, have expressed their support for the President's nominee from the beginning. I have also expressed my support for Judge Martin and I believe she will be easily confirmed when the vote occurs.

As I have said many times, Republicans have been and are ready and willing to proceed to a roll call vote on her nomination for months but, for whatever reason, our Democratic colleagues, the leadership, would not take yes for an answer. Instead, they chose to force votes on controversial nominees such as David Hamilton and Andre Davis. Given those nominees' records, it was no secret they would engender opposition and that it would take some time for their records to be examined and to be prepared for debate.

I do not know the reasons for not calling up Judge Martin's nomination sooner. I hope it wasn't to purposely delay this noncontroversial nomination in order to create an illusion that a lot of judges are being obstructed. Certainly we have been accused of obstructing nominations in the last few months and we have heard these allegations repeated on the Senate floor and in the press, often supported by inaccurate and misleading information. Some of my Democratic colleagues have said they want to confirm judicial nominees at the same pace the Democratic-controlled Senate confirmed President Bush's nominees. I think my colleagues should be careful what they wish for, because President Obama's nominees have fared far better than President Bush's. For those who were not here then, and for those who don't--or won't--remember, I wish to take a moment to describe exactly what happened during that time.

President Bush began his Presidency by extending an olive branch and renominating two prior Clinton nominees to seats on the Circuit Courts of Appeal--one step removed from the Supreme Court. He renominated Democratic nominees. How was he repaid for that? The Democrats took the olive branch and broke it and gave it back to him. It began soon after President Bush was elected when a group of well-known professors-- liberal activist professors--Laurence Tribe, Marsha Greenberger, and Cass Sunstein, met with the Democratic leadership and proposed changing the ground rules of the confirmation process in a meeting, apparently-- certainly not open to the public. They proposed that Senators should consider a nominee's ideology--this had not been historically done--and for the first time in the history of the country, they proposed that the burden be shifted to the nominee to somehow prove they were worthy of the appointment instead of having the Senate respect the presumptive power of the President to make nominations and then object if that nomination was a concern to them. So it was clear to me then that as a result of that meeting, a majority of the Democrat Members of this body agreed to what they proposed. After the Democrats took control in the 107th Congress, then-Majority Leader Daschle promised to ``use whatever means necessary'' to defeat President Bush's judicial nominees.

Before the 2001 August recess, the Democrats granted hearings for only two circuit court nominees, and one was Roger Gregory, a former Clinton nominee who was renominated. They even refused to hold a hearing for now-Chief Justice John Roberts. His nomination at the time was to the District of Columbia circuit which had been scheduled for a hearing before the change in the Senate majority. Then, in an unprecedented and, I think, partisan move, our Democratic colleagues indiscriminately returned every single one of President Bush's 40 pending judicial nominations. There was no consideration of an individual nominee's record. There was no consideration of bipartisan support for the nominee. It was a simple obstruction, it appeared to me. Thirty of these nominees were later confirmed by voice vote or by a substantial majority.

This was followed by another unprecedented event: the systematic filibuster of highly qualified nominees, many of whom were later confirmed by voice vote or a substantial majority. The Democrats filibustered 30 attempts to hold up-or-down votes on at least 17 judicial nominees, highly qualified nominees--some rated unanimously well qualified by the American Bar Association. Senator Reid summed up what they were doing during the filibuster of Priscilla Owen--a fabulous nominee; a justice on the Texas Supreme Court; a great lady-- he opposed her nomination and he said in his quote: ``There is not a number of hours in the universe that would be sufficient'' to debate her nomination.

So, today, we hear outrage that President Obama's nominees have been waiting for weeks or months for a confirmation vote. President Bush's nominees to the circuit courts waited an average of 350 days--almost a year, on average; I was here--from nomination to confirmation. That was just the average. The majority of President Bush's first nominees to the circuit courts waited years for confirmation votes and some never even received a hearing in committee, despite being highly qualified, outstanding nominees. Priscilla Owen, Justice Owen of the Texas Supreme Court, waited 4 years for a confirmation vote. John Roberts, Jeffrey Sutton, and Deborah Cook all waited 2 years. Dennis Shedd and Michael McConnell waited for more than a year and a half. Terrence Boyle, who was nominated by President Bush for the Fourth Circuit, languished close to 8 years and never received a vote, even though he passed out of the Judiciary Committee with a majority, and the Democrats had the majority. Miguel Estrada, rated unanimously well qualified by the American Bar Association, was filibustered through seven cloture votes and never confirmed. Charles Pickering, Carolyn Kuhl, Williams Myers, Henry Saad, William Haynes--all I think outstanding nominees--all were filibustered and never confirmed. So I ask my Democratic colleagues: Did we have any outrage from that side then?

Let's look at the current pace of nominations. Unlike President Bush, President Obama did not extend an olive branch by renominating any of the outstanding pending nominees President Bush had submitted who were being held up. In fact, he ignored a request by all of the Republican Members of this body to do that. Instead, he chose Judge David Hamilton as his first nominee. He could hardly be characterized as a consensus nominee. Thirty-nine Senators--all Republicans--voted against him after a full debate.

The treatment of President Obama's and President Bush's nominees for the Fourth Circuit will illustrate what I am saying. During the 110th Congress, despite the 33-percent vacancy rate on that court, four of President Bush's

well-qualified, consensus nominees to that court, the Fourth Circuit, were needlessly delayed and ultimately blocked. President Bush nominated Steve Matthews in September of 2007. Despite his stellar qualifications, he was forced to wait 485 days to even get a hearing and the hearing never came. His nomination was returned in January of 2009. Chief Judge Robert Conrad of the district court had the support of his home State Senators and received an ABA rating of unanimously well qualified. Despite overwhelming support and exceptional qualifications, including having played point guard for Clemson in the ACC, he waited 585 days for a hearing that never came. His nomination was returned. Judge Glen Conrad had been chosen by Janet Reno, President Clinton's Attorney General, to investigate one of the allegations against President Clinton. Out of all of the prosecutors in America, she chose Judge Conrad. It is an outrage that he was not confirmed. He was a stellar nominee and should have been confirmed. The bar respected him and so did the Democratic administration.

Finally, Rod Rosenstein, whom the ABA rated unanimously well- qualified and who served in the Department of Justice in both Democrat and Republican administrations, waited 414 days for a hearing that never came. His nomination was returned on January 2, 2009.

President Obama's Fourth Circuit nominees have fared far better. Take Judge Andre Davis. He received a hearing a mere 27 days after his nomination, a committee vote just 36 days later, and was confirmed in early November of last year. Justice Barbara Milano Keenan was nominated on September 14, 2009. She received a hearing just 22 days later and was voted out of committee 23 days after that. Both Judge Albert Diaz and Judge James Wynn were nominated on November 4, 2009. The committee quickly held their hearing on December 16, 2009--despite the fact that the Senate was consumed with the healthcare debate--and their nominations are listed on the committee's agenda for this week.

The raw numbers also demonstrate that this is not the simple ``apples to apples'' comparison that some have tried to make it out to be.

President Obama has nominated little more than half the judicial nominees that President Bush had nominated at this point in his Presidency. Despite holding a time consuming Supreme Court confirmation hearing, the Judiciary Committee has still managed to hold hearings for all of President Obama's nominees, except for the few that were nominated just before the recess last month and were not ripe for hearings before the break. Compare that to this point under President Bush when 31 of his judicial nominees had yet to receive hearings.

And, not only has the Senate confirmed nearly the same percentage of President Obama's judicial nominees as were confirmed at this point under President Bush, but we are moving faster. Indeed, President Obama's circuit court nominees have received confirmation votes mere months after being nominated--far quicker than President Bush's circuit court nominees, who waited an average of 350 days. Many waited years and many never even received an up-or-down vote. The simple fact is that President Obama has nominated fewer and we have confirmed more.

All of this is not to lay the groundwork for some sort of payback, but to set the record straight. Republicans have not held a private retreat to plot how to block judicial nominees. We have not taken orders from outside groups to block nominees based on their ideology. We have not blocked nominees because we do not want them to sit on a specific case. We have not once attempted to filibuster nominees in the Judiciary Committee. That is how Democrats treated President Bush's nominees. Those are the facts.

We have not and will not do any of those things. Instead, we will continue to thoroughly analyze the records of President Obama's nominees, and hold fair and rigorous hearings to ensure that each nominee possesses the impartiality, the commitment to the rule of law, the integrity, the legal expertise, and the judicial restraint necessary to sit on our Nation's judiciary.

As ranking member of the Judiciary Committee, I look forward to continuing to work with the chairman to process nominations in the bipartisan manner that we have established over the past year.

I yield the floor.

I see our outstanding chairman, Senator Leahy, is here. I know he wants to get back to the committee. I appreciate his leadership. He is a person I enjoy working with. We spat a little over these nominations, but he allows us to have full and fair hearings when we have them, and I think I can't ask for more than that.

I thank the Chair and yield the floor.

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

Mr. President, I would like to share some thoughts on a central issue to this health care reform legislation. It is something that has gotten away from us. I do not believe we fully comprehended it. It is a critical issue.

It seems to me we are double-counting the money. We are counting money twice--maybe the largest amount of money ever having been counted twice in the history of the world. It is very dangerous with regard to the financial viability of the legislation we are looking at today.

It was promised by the President that this legislation would not add one dime to the national debt. He said yesterday that this legislation would strengthen Medicare. This is his quote:

. . . and Medicare will be stronger and its solvency

extended by nearly a decade.

I don't think that is accurate. We have had other Members of the Democratic leadership say that.

What we know is we have, I think it is about $460 billion in tax increases and $490 billion in tax increases and a little less than that, $400-and-some-odd billion in savings to Medicare, and that accounts for the $871 billion the bill is supposed to cost in the first 10 years. Of course, that is not an accurate ultimate cost since most of the benefits in the bill do not start until the fifth year. So when you go the first full 10 years of the bill, it costs $2.5 trillion. But, regardless, let's take this first 10 years. The assertion is that Medicare can be improved and that we can take money from it and that this is going to make Medicare stronger and that somehow this is going to extend the solvency of Medicare, which is going insolvent by 2017. That is because more and more people are retiring and people are living longer, among other reasons. So the cost of Medicare goes up.

I guess what I am framing now is what I believe to be a matter of the greatest importance. The argument is that somehow, by cutting benefits in Medicare by almost $\1/2\ trillion, we are somehow strengthening Medicare. That would be true if the money that was taken out of Medicare Programs and benefits and providers who are providing the benefits--if that money were maintained in Medicare.

They go to the CMS, the institution that keeps up with Medicare costs, the Center for Medicare and Medicaid Services, the Chief Actuary there, Mr. Richard Foster, and they ask him: Won't these reductions in Medicare expenses extend the life of Medicare? And he said yes. OK. He said yes. He writes this:

We estimate that the aggregate net savings to the Part A

trust fund under the PPACA--

That is the health care reform bill--

would postpone the exhaustion of the trust fund assets by 9

years--that is from 2017 under current law to 2026 under the

proposed legislation.

Great. That is not a bad result. But then he goes on. I think he was simply asked: If you reduce spending in Medicare by effecting these cuts and reductions in Medicare, will it extend the life? And he said it would. However, I think he felt he might have been used, and so he didn't leave it right there. I think he believed there was something else afoot in this deal. He goes on to say this:

In practice, the improved Part A financing--

That is what he is talking about, these cuts--

. . . the improved Part A financing cannot be simultaneously

used to finance other Federal outlays (such as the coverage

expansions under the PPACA)--

The health care bill--

and to extend the trust fund, despite the appearance of this

result from the respective accounting conventions.

Maybe I am wrong about this. I am happy to have a lot of people look at it. Wait a minute, we have the President of the United States yesterday saying that Medicare will be stronger and its solvency extended for nearly a decade. We have Senator Durbin and I think Senator Baucus and others saying the same thing. We are talking about $400 billion.

So I would think this Congress can get a straight answer somewhere. Don't you? Well, I have been asking staff, and they say it is double counting.

I said: What do you mean it is double counting?

Well, Senator Gregg, the ranking Republican on the Budget Committee-- former chairman of the Budget Committee--said it is double accounting. He offered an amendment, a simple amendment that said any money that is saved in Medicare stays in Medicare. Did that pass? No. They voted that down. That should be a signal, I submit. That should be a red flag.

So now I am looking at this really, really hard because the way I see the financial accounting of the bill, perhaps the largest bogus part of it is to say that the money that is being saved from Medicare is going to create this new program and, at the same time, saying the savings in Medicare are going to be used to extend the life of Medicare. You cannot do both.

That is what Mr. Foster said in his letter of December 10:

In practice, the improved Part A financing--

He is talking about the improved Part A financing of Medicare by these cuts--

the improved Part A financing cannot be simultaneously used

to finance other Federal outlays (such as the coverage

expansions under the PPACA) and to extend the trust fund. . .

.

All right. You got it? Let's go back and leave out the parentheses:

. . . the improved Part A financing cannot be

simultaneously used to finance other Federal outlays . . .

and to extend the trust fund, despite the appearance of this

result from the respective accounting conventions.

So they got CBO to score it as if the money is going into the new health care reform, and they got CMS to score it as if it is saving Medicare.

Now, I was a Federal prosecutor for a long time. I know the responsibilities placed on presidents of corporations. If the president of a corporation were to issue a prospectus and ask people to invest money in his company and support his program, his agenda, and he said: I have $400 billion or $400,000 I am going to spend in it, and he knew the money was being spent on something else and he did not really have that money, that is a criminal offense, and people would go to jail for it.

I am worried about it; I really am. This is unbelievable. So we are going to get to the bottom of this. If I am wrong, I would like to see where the money is coming from. So my question to my colleagues is--and apparently this has been asked by staff for weeks and they have never gotten a straight answer--where do you get this $871 billion? How much of that are you counting coming from savings in Medicare; and where, precisely, are you getting it from Medicare? If you are going to spend it on the new program, how are you going to say it is going to strengthen Medicare as to its insolvency problem?

You cannot count the money twice, and I believe that is what Mr. Foster was suggesting; that you cannot simultaneously count the money ``despite the appearance of this result from the respective accounting conventions.'' What he is saying is, CBO is following proper accounting conventions for their scoring and CMS is doing it their way and it gives the appearance that you have some money that can be spent twice. But he said you cannot simultaneously use the same money. Now, isn't that true? But in this body, I do not know.

What is another fundamental matter of budgetary importance that goes with it? The President has repeatedly said that not one dime will be added to the national debt, and it should not be. We cannot continue to do that. So when this legislation started, the idea was we needed to reform a lot of problems in our health care situation.

One of the problems everybody recognized was that the doctors are not getting paid in a proper fashion for the work they do. Under the Balanced Budget Act of 1997, we effected rules on how much doctors should be paid, and if those rules went into effect today, doctors would have a 21-percent pay cut on all Medicare work. Already Medicare physicians are leaving the practice because they get paid much

less from the Federal Medicare Program than they do from private health insurance. So they would rather do private work than Medicare. But they do Medicare--most doctors do--but if you took them another 21 percent down, they would not.

Every year, they come here and ask the Congress to waive this cut, and Congress--as part of the duplicity of this body that has gone on under both parties, but each year it gets worse and worse--we fix it, and we do not execute the cut. But we only do it for 1 year. So when we have a budget, it assumes a 10-year budget. As President Obama submitted it to us, it assumes in the first year you pay the physicians and you do not cut their pay. Then for 9 years you assume they get a 21-percent reduction. It is a gimmick because you cannot cut the physicians 21 percent; and we know that. If we budgeted for the full amount, we are going to have to pay physicians, and we are going to pay physicians, then there would be a big hole because we do not have the money and we either have to cut something else, raise taxes, or raise the debt. What we have been doing is paying for it with more debt.

Well, each year, the doctors get all upset because they are staring at a 21-percent pay cut. All their representatives in the AMA and everybody come up every year and tell us: Don't cut our pay, and we do not--1 year at a time.

This is a misrepresentation. It hides the financial precariousness of our position. It is not good. It should never continue. It needs to be permanently fixed, and that was supposed to be part of health care reform from the beginning. The President said that is what he was going to do. The leadership on the other side said that is what they were going to do.

But what happened--when they met in their secret rooms, and they all wheeled and dealed and tried to add up these numbers and see how they could manipulate numbers and scores and accounting to make it add up so they could say it would not add one penny to the debt--they could not get around the $250 billion it takes to pay the doctors. They could not do it.

They say, under this bill, there is a $130 billion surplus over the first 10 years. But it does not fix the doctor payments for Medicare in health care work, Medicaid. It does not fix it. So when you fix it, it costs $250 billion. There is no dispute about that. We have analyzed that. The accounting numbers are clear: $250 billion.

So what the Democrats tried to do--it was a clever--Senator Ensign referred to it the other day as a shell game. They moved the doctor fix out of the health care reform--just took it out--and so, therefore, you do not have the $250 billion hole and you just put it over here. They thought they would be clever, they would just pass it, and we would add it all to the debt. They tried to do so, so they could tell the doctors they tried to vote to have a permanent fix of their payments. ``Doctors, we are going to take care of it. We'll just pass it, and every penny of this will add to the debt.''

Well, 13 Democrats would not swallow that, and I think every Republican opposed it, and it went down. So now I think we have a 2- month fix. Two months is where we are working from today, so we would not have a slashing of payments to physicians by failure to fix it.

So they just took it out, and I assume we are going to have some other gimmick to hide that $250 billion. So if you put the $250 billion cost into health care reform, you end up with a $120 billion deficit right off the bat. Then, when you get into this double accounting of $450 billion, you have really got a mess. They are estimating $871 billion in income for the first 10 years of this plan. As I analyze it, you have a $250 billion hole from not paying the doctors, and then you have a $400-plus billion double accounting--the savings from Medicare.

So it is just not good. I am telling you, we only have one President. He has a lot of things on his mind, and it is very frustrating. But I will say one more thing he said at that press conference. He said, and he has repeatedly stated: It is going to reduce health care premiums for your insurance. Right? This was yesterday, after this bill passed. He says he is tired of people carping about the cost of the bill. Remember him saying that--tired of these carpers? I guess he is talking about me because I have been carping about the cost of it for some time because the numbers do not add up.

All right. They claim the legislation will reduce insurance costs. This is the score of the CBO about small businesses. What about insurance premiums? If you are small businesses, the average premiums today for a family is $13,300. If the Reid bill passes, by 2016 the premiums will be $19,200. Is that cutting premiums? Well, yes, it is because under the Reid bill it would increase, on average, 5.38 percent. But if we did not pass any bill at all, it would increase it 5.46 percent. So it saved money; it reduced your premium. It will be $19,200 instead of $19,300. That is for small businesses.

What about for large businesses? Does it cut insurance premiums there? For large business plans, under the Reid bill, the increase, if we pass this legislation, would be 5.41 percent per year in your premiums. If you do not pass the bill at all, it would be 5.56 percent. Is that a savings? Very little. Instead of $21,100, under the Reid bill you would pay $20,300.

Then, finally, the individual market--this is the people who already are the ones who are getting hurt because they are not in group plans; they don't have employers paying a third, a half, or whatever, for insurance; they don't get the same tax breaks. They are getting killed. Barbers, individual people who can't get into group plans, it is horrible for them. What happens to the individual market? Under the Reid bill, their premiums would go up 7.77 percent per year. They would go up more than the others. What about if we didn't do anything? How much would their bills go up then, their insurance bills? Only 5.51 percent. Theirs go up more than 2 percent.

So I am just saying this legislation may have a great vision, it may have a great idea about trying to make the system work better, but it doesn't. These are huge costs. It is not financially sound. It is not going to reduce our premiums. It is going to increase the percentage of wealth in America going to health care instead of reducing it as I thought we were supposed to do from the beginning.

I see my colleague, Senator Kyl, here. I would just leave it at that. I thank my colleagues. But if I am correct about these numbers, we shouldn't vote for the bill. People should change their vote. If I am in error, I would like to be informed of how I am in error.

I yield the floor.