Floor Statements

Mr. President, I am joined by my friend and colleague and fellow warrior, Senator Feingold. He and I both have some remarks to make. I was chosen to go first, and then Senator Feingold, I know, will also want to address what we think is a very important issue. This is the issue of the U.S. Supreme Court case Citizens United v. Federal Election Commission.

On September 9, the U.S. Supreme Court heard oral arguments from both sides in the Citizens United v. Federal Election Commission. The implications of this case are very serious, and the Supreme Court's decision could result in the unraveling of over 100 years of congressional action and judicial precedent with respect to corporate spending in political campaigns. Senator Feingold and I were present in the Supreme Court chamber for the arguments in this case. I commend both sides for presenting their case in a thoughtful, intelligent manner. However, there was one part of the argument I found particularly disturbing.

While responding to a question from Justice Alito, the Solicitor General was interrupted by Justice Scalia, who said:

Congress has a self-interest. I mean, we--we are suspicious

of Congressional action in the First Amendment area precisely

because we--at least I am--

Here is the interesting part, when Justice Scalia said:

I doubt that one can expect a body of incumbents to draw

election restrictions that do not favor incumbents. Now is

that excessively cynical of me? I don't think so.

Yes, I think it is excessively cynical. I take great exception to Justice Scalia's statement, as should every Member of both Houses of Congress. It is an affront to the thousands of good, decent, honorable men and women who have served this Nation in these Halls for well over 200 years. Not only was Justice Scalia's statement excessively cynical, it showed his unfortunate lack of understanding of the facts and history of campaign reform. Throughout our history, America has faced periods of political corruption, and in every instance, Congress has risen above its own self-interest and enacted the necessary reforms to address the scandals and corruption that have plagued our democratic institutions over time and throughout our history. The Tillman Act in 1907, the Publicity Act of 1910, the Federal Corrupt Practices Act in 1925, the Public Utilities Holding Act in 1935, the Hatch Act in 1939, the Smith-Connelly Act in 1943, the Taft-Hartley Act of 1947, the Long Act in 1968, the Federal Election Campaign Act in 1974, and the bipartisan Campaign Reform Act in 2002 are just some of the reforms enacted by Congress over the years to address corruption in our government and in our campaigns.

Simply put, history has proven Justice Scalia wrong in his assessment that Congress will not act in anything but a self-serving manner.

Justice Scalia's statement was also remarkable in that it exposed his belief that when it comes to issues relating to campaign reform, he somehow is a better arbiter of what is needed to reform the electoral process than the Congress or the American people. With all due respect, that is not the job of the judicial branch. Judges who stray beyond their constitutional role to try and take Congress's place as policymakers falsely believe that judges somehow have a greater insight into what legislation is necessary and proper than representatives who are duly elected by the people and accountable to them every several years.

Activist judges--regardless of whether it is liberal or conservative activism--assume the judiciary is a superlegislature of moral philosophers, entitled to support Congress's policy choices whenever they choose. I believe this judicial activism is wrong and is contrary to the Constitution.

Our Constitution is very clear in its delineation and dispersement of power. It solely tasks the Congress with creating law, not the courts. I have a long history of opposing activist judges. Judicial activism demonstrates a lack of respect for the popular will, and that is at fundamental odds with our republican system of government. I believe a judge should seek to uphold all acts of Congress and State legislatures, unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner which creates new law. That is a fundamentally conservative position I have held throughout my career. I wish Justice Scalia shared that position.

Let us be very clear. At stake in the Citizens United case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are rescinded. Overturning Supreme Court precedent would open the floodgates to unlimited corporate and union spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, such as a Fortune 500 company or a big labor union, are much more likely to be heard during an election than the average American voter is. For this reason, I have always advocated laws that would prevent big-moneyed special interests from drowning out the voices of individual American citizens in elections and dominating the decisionmaking process of our government.

Contrary to some of my critics, I am a firm believer in the first amendment.

For more than 100 years, laws have stood to limit corporate donations to political candidates and campaigns--for more than 100 years. The concern about corporate involvement in campaigns is not new in America. On September 3, 1897, in a speech on government and citizenship, Elihu Root, who would go on to become Theodore Roosevelt's Secretary of State and a Nobel Peace Prize winner, said:

The idea . . . is to prevent the great moneyed corporations

of the country from furnishing the money with which to elect

members of the legislature . . . in order that those members

of the legislature may vote to protect the corporations. It

is to prevent the great railroad companies, the great

insurance companies, the great telephone companies, the great

aggregations of wealth, from using their corporate funds,

directly or indirectly, to send members of the legislature to

these halls, in order to vote for their protection and the

advancement of their interests as against those of the

public.

It strikes, Mr. Chairman, at a constantly growing evil in

our political affairs, which has, in my judgment, done more

to shake the confidence of the plain people of small means in

our political institutions, than any other practice which has

ever obtained since the foundation of our government.

Remember, this was in 1897. He went on to say:

And I believe that the time has come when something ought

to be done to put a check upon the giving of $50,000 or

$100,000 by a great corporation toward political purposes,

upon the understanding that a debt is created from a

political party to it; a debt to be recognized and repaid

with the votes of representatives in the legislature and in

Congress, or by the action of administrative or executive

officers who have been elected in a measure through the use

of the money so contributed.

Additionally, one can make the case that the concern about corporate influence extends as far back as our Founding Fathers. In 1816, Thomas Jefferson wrote:

I hope we shall crush in its birth the aristocracy of our

moneyed corporations which dare already to challenge our

government in a trial of strength, and bid defiance to the

laws of our country.

Kentucky was the first State to ban corporations from spending their funds in State elections in 1891, and by 1897 Florida, Missouri, Nebraska, and Tennessee had all enacted similar corporate spending prohibitions in their State elections. While some States began enacting limits on the influence of money on politics during the Civil War era, Congress did not begin to pass major campaign finance regulations until some decades later. By that time, political contributions by major corporate interests and business leaders dominated campaign fundraising, and this development sparked the first major movement for national reform.

Progressive reformers, such as President Theodore Roosevelt and investigative journalists, charged that these business interests were attempting to gain special access and favors; thereby, corrupting the democratic process. This reform movement, combined with allegations of financial impropriety in the 1904 Presidential election, resulted in the enactment of significant reforms.

On October 1, 1904, Joseph Pulitzer published an editorial in the New York World questioning President Roosevelt's ties to many of the large corporations that had donated to his campaign. Those questions led Roosevelt's opponent, Judge Alton Parker, to describe the donations as blackmail and insinuated there was a quid pro quo involved. President Roosevelt responded angrily, calling the accusations monstrous and said:

The assertion that there has been any blackmail, direct or

indirect . . . is a falsehood. The assertion that there has

been made any pledge or promise or that there has been any

understanding as to future immunities or benefits, in

recognition from any source is a wicked falsehood.

President Roosevelt, not wanting to give the appearance of improper influence, directed his staff to return a $100,000 contribution from the Standard Oil Corporation. In his memo he wrote:

We cannot under any circumstances afford to take a

contribution which can be even improperly construed as

putting us under an improper obligation.

The allegations of impropriety also led Roosevelt to call for an end to corporate donations to campaigns. In his fifth annual message to the Congress on December 5, 1905, Roosevelt said:

The power of the Government to protect the integrity of the

elections of its own officials is inherent and has been

recognized and affirmed by repeated declarations of the

Supreme Court. There is no enemy of free government more

dangerous and none so insidious as the corruption of the

electorate.

He warned:

If [legislators] are extorted by any kind of pressure or

promise, express or implied, direct or indirect, in the way

of favor or immunity, then the giving or receiving becomes

not only improper but criminal. All contributions by

corporations to any political committee or for any political

purpose should be forbidden by law; directors should not be

permitted to use stockholders money for such purposes; and,

moreover, a prohibition of this kind would be, as far as it

went, an effective method of stopping the evils aimed at in

the corrupt practices acts. Not only should both the national

and the several State legislatures forbid any officer of a

corporation from using the money of the corporation in or

about any election, but they should also forbid such use of

money in connection with any legislation.

Again, the following year, in his sixth annual message to Congress in December 1906, President Roosevelt tried to limit corporate influence, stating:

I again recommend a law prohibiting all corporations from

contributing to the campaign expenses of any party. Such a

bill has already passed one House of Congress. Let

individuals contribute as they desire . . .

I repeat what he said:

Let individuals contribute as they desire; but let us

prohibit in effective fashion all corporations from making

contributions for any political purpose, directly or

indirectly.

In January 1907, Theodore Roosevelt signed into law the Tillman Act. This law prohibited nationally chartered banks and corporations from contributing to campaigns. In the report to accompany the Senate version of the legislation, dated April 27, 1906, the Senate Committee on Privileges and Elections wrote:

The evils of the use of money in connection with political

elections are so generally recognized that the committee

deems it unnecessary to make any argument in favor of the

general purpose of this measure. It is in the interest of

good government and calculated to promote purity in the

selection of public officials.''

Following passage of the Tillman Act, Roosevelt again addressed the issue in his Seventh Annual Message to Congress in December, 1907. He said:

Under our form of government voting is not merely a right

but a duty, and, moreover, a fundamental and necessary duty

if a man is to be a good citizen. It is well to provide that

corporations shall not contribute to Presidential or National

campaigns, and furthermore to provide for the publication of

both contributions and expenditures.

Although the Tillman Act constituted a landmark in Federal law, according to campaign finance expert Anthony Corrado, ``its adoption did not quell the cries for reform. Eliminating corporate influence was only one of the ideas being advanced at this time to clean up political finance.'' In the years following the passage of the Tillman Act, reducing the influence of wealthy individuals and labor unions became a concern and reformers pushed for further limits on donations.

Consequently, in 1947, Congress enacted the Taft-Hartley Act, which explicitly banned corporate and labor union expenditures in Federal campaigns. In doing so, Senator Robert Taft made clear that the purpose of the new language was simply to affirm what had been understood to always be the case--that the 1907 corporate ban had prohibited corporate expenditures, or indirect contributions, as well as direct corporate contributions.

A ban on corporate expenditures in campaigns has been consistently upheld by the Supreme Court as constitutional and as ``firmly embedded in our law.''

The constitutionality of the ban on corporate campaign expenditures was upheld by the Supreme Court in the Austin v. Michigan Chamber of Commerce decision in 1990 and reaffirmed by the Court in the McConnell v. Federal Election Commission decision in 2003. And the corporate expenditure ban had been commented on favorably by the Court in earlier cases.

In 1990, in the Austin case, the Supreme Court acknowledged the importance of maintaining the integrity of the political process. From the Court's opinion:

Michigan identified as a serious danger the significant

possibility that corporate political expenditures will

undermine the integrity of the political process, and it has

implemented a narrowly tailored solution to that problem. By

requiring corporations to make all independent political

expenditures

through a separate fund made up of money solicited expressly

for political purposes, the Michigan Campaign Finance Act

reduces the threat that huge corporate treasuries amassed

with the aid of favorable state laws will be used to

influence unfairly the outcome of elections.

In the McConnell case, the Supreme Court recognized its long-standing support for the constitutionality of bans on corporate campaign expenditures going back to its Buckley decision in 1976. From the Court's decision:

Since our decision in Buckley, Congress' power to prohibit

corporations and unions from using funds in their treasuries

to finance advertisements expressly advocating the election

or defeat of candidates in federal elections has been firmly

embedded in our law.

Additionally, in 1982, in the National Right to Work Committee case, the Supreme Court, in an opinion authored by Chief Justice William Rhenquist, stated regarding the Federal ban on corporate and labor union expenditures:

The careful legislative adjustment of the federal electoral

laws, in a cautious advance, step by step, to account for the

particular legal and economic attributes of corporations and

labor organizations warrants considerable deference. [I]t

also reflects a permissible assessment of the dangers posed

by those entities to the electoral process.

In order to prevent both actual and apparent corruption,

Congress aimed a part of its regulatory scheme at

corporations. The statute reflects a legislative judgment

that the special characteristics of the corporate structure

require particularly careful regulation. Nor will we second

guess a legislative determination as to the need for

prophylactic measures where corruption is the evil feared. As

we said in California Medical Association v. FEC, the

``differing structures and purposes; of different entities

`may require different forms of regulation in order to

protect the integrity of the electoral process . . .' ''

The governmental interest in preventing both actual

corruption and the appearance of corruption of elected

representatives has long been recognized, First National Bank

of Boston v. Bellotti, supra, and there is no reason why it

may not in this case be accomplished by treating unions,

corporations and similar organizations different from

individuals.

In 1986, in the Massachusetts Citizens for Life case, the Supreme Court stated regarding the Federal ban on corporate expenditures in campaigns:

This concern over the corrosive influence of concentrated

corporate wealth reflects the conviction that it is important

to protect the integrity of the marketplace of political

ideas . . . Direct corporate spending on political activity

raises the prospect that resources amassed in the economic

marketplace may be used to provide an unfair advantage in the

political marketplace . . . The resources in the treasury of

a business corporation . . . are not an indication of popular

support for the corporation's political ideas. They reflect

instead the economically motivated decisions of investors and

customers. The availability of these resources may make a

corporation a formidable political presence, even though the

power of the corporation may be no reflection of the power of

its ideas.

By requiring that corporate independent expenditures be

financed through a political committee expressly established

to engage in campaign spending, section 441b seeks to prevent

this threat to the political marketplace. The resources

available to this fund, as opposed to the corporate treasury,

in fact reflect popular support for the political positions

of the committee.

If anyone has doubts about the influence of big-moneyed special interests on policy makers in this town, let me relay a personal observation. During the Senate Commerce Committee's consideration of the 1996 Telecommunications Act, every company affected by the legislation had purchased a seat at the table with soft money. Consequently, the bill attempted to protect them all, a goal that is obviously incompatible with competition. Consumers, who only give us their votes, had no seat at the table, and the lower prices that competition produces never materialized. Cable rates went up. Phone rates went up. And huge broadcasting giants received billions of dollars in digital spectrum, property that belonged to the American people, for free. They got it for free, billions of dollars worth of spectrum.

Information gathered from various sources in the press at the time indicated that the special interest groups involved spent nearly $150 million to lobby Congress on telecommunications reform--and they all came out on top--at the expense of the American consumer.

Similarly, the pharmaceutical industry has spent millions of dollars to sway lawmakers against the idea of drug importation. In the 2008 election cycle, pharmaceutical companies gave almost $30 million in campaign contributions to Members of Congress. Just this year, according to an article published in the June 3 edition of The Hill, the prescription drug industry has given more than one million dollars to both Republicans and Democrats. And these contributions were from the limited funds of corporate PACs--a fraction of the flood of money that could be spent out of corporate treasuries if the Supreme Court changes the law by judicial fiat.

As my colleagues know, for many years my colleague from Wisconsin, Senator Feingold and I fought to ban soft money--the large, unregulated donations from corporations, labor unions, and wealthy individuals-- from Federal elections. As the sponsors of the Bipartisan Campaign Finance Reform Act, we submitted, together with our colleagues from the House, Representatives Shays and Meehan, a brief for the court. In this brief we stated:

More fundamentally, Austin and McConnell were correctly

decided. Unlimited expenditures supporting or opposing

candidates may create at least the appearance of corruption,

as Caperton v. A.T. Massey Coal Co. illustrates. The

tremendous resources business corporations and unions can

bring to bear on elections, and the greater magnitude of the

resulting apparent corruption, amply justify treating

corporate and union expenditures differently from those by

individuals and ideological nonprofit groups.

So, too, does the countervailing free-speech interest of

the many shareholders who may not wish to support corporate

electioneering but have no effective means of controlling

what corporations do with what is ultimately the

shareholders' money. Austin was rightly concerned with the

corruption of the system that will result if campaign

discourse becomes dominated not by individual citizens--whose

right it is to select their political representatives--but by

corporate and union war-chests amassed as a result of the

special benefits the government confers on these artificial

``persons.'' That concern remains a compelling justification

for restrictions on using corporate treasury funds for

electoral advocacy--constraints that ban no speech but only

require that it be funded by individuals who have chosen to

do so.

The holdings of Austin and McConnell--that it is

constitutional to require business corporations to use

segregated funds contributed by shareholders, officers and

employees for express candidate advocacy or its functional

equivalent--remain sound today. The interests in preventing

actual or apparent corruption of the electoral process and

protecting shareholders provide compelling justification for

such requirements, which neither unduly burden nor

overbroadly inhibit protected speech.

The corporate PAC option, moreover, is ideally suited to

balancing the First Amendment interests of corporate entities

and their shareholders. It allows the corporation to direct

political spending only to the extent shareholders have

personally decided to contribute for that specific purpose.

It thus ensures that the corporation may have a voice, but

one that is not subsidized unwillingly by those who may

disagree with its electoral message. And there is no basis in

the record for concluding that PACs are inadequate or unduly

burdensome for business corporations, whatever may be true of

certain ideological nonprofit corporations. Indeed, PAC

requirements pale in comparison with the detailed

recordkeeping and accounting otherwise required of

corporations and unions.

The ability of corporate campaign expenditures to buy influence with Federal officeholders, and to create the appearance of such influence- buying is sadly evident in nearly every aspect of the legislative process. This fact was recognized in the McConnell case.

The brief filed in the McConnell case by me and my colleagues stated:

Not surprisingly, the McConnell record provided strong

corroboration that corporate and union expenditures on ads

that were the functional equivalent of express advocacy

created the appearance of corruption. Based on that record,

Judge Kollar-Kotelly found that such expenditures ``permit

corporations and labor unions to inject immense aggregations

of wealth into the process'' and ``radically distort the

electoral landscape.'' She further found that candidates are

``acutely aware of'' and ``appreciate'' such expenditures,

and ``feel indebted to those who spend money to help get them

elected.'' She concluded that ``the record demonstrates that

candidates and parties appreciate and encourage corporations

and labor unions to deploy their large aggregations of wealth

into the political process,'' and that ``the record presents

an appearance of corruption stemming from the dependence of

officeholders and parties on advertisements run by these

outside groups.''

According to the Solicitor General's brief, the record in the McConnell case showed that:

Federal officeholders and candidates were aware of and felt

indebted to corporations

and unions that financed electioneering advertisements on

their behalf or against their opponents.

The brief further stated:

[T]he record compiled in the McConnell case indicated that

corporate spending on candidate-related speech, even if

conducted independent of candidates, had come to be used as a

means of currying favor with and attempting to influence

Federal office-holders.

It is important for us to remember that this case does not affect solely the integrity of Federal elections. The States also have a great deal at stake in this case. In a brief filed in the Citizens United case, 26 State attorneys general wrote that ``Courts have repeatedly upheld these State and Federal corporate electioneering restrictions from their inception.''

In their brief, the attorneys general wrote:

This case does not concern the traditional regulation of

corporate spending by State Laws. Instead it presents the

application of a recent Federal statute to a novel form of

political campaigning through the medium of video-on-demand

and the message of a ninety-minute film. These and other

political campaign innovations present an occasion to draw on

State law experiments, not end them. The court cannot reach

the validity of these laws under Austin without departing

from its conventional approach to constitutional avoidance

and as-applied review of campaign finance statutes, and

ignoring its cautions against facial challenges in election

law generally.

Austin follows a century of campaign finance law at the

State and Federal level honed by six decades of this Court's

holdings. Those decisions, and the State and Federal laws

that gave rise to and rely on them, delineate a workable

segregated-fund requirement for corporate electioneering that

is embedded in campaign laws and practice at the Federal and

State level. While imposing minimal burdens on corporations,

the segregated fund protects the integrity of the political

process from the corrupting influence of corporate executives

funding political campaigns that have no proven support from

the shareholders or customers whose money pays for the

advocacy. The flourishing of corporate speech through PACs,

and continued harms of direct corporate electioneering, has

vindicated rather than undermined Austin's approval of

segregated funds.

It is clear that the Austin and McConnell cases were correctly decided on the merits and those decisions remain sound today. According to the brief filed by the U.S. Solicitor General:

The Court in Austin held that corporations may

constitutionally be prohibited from financing electoral

advocacy with funds derived from business activities. That

holding was correct when issued and should not be overturned

now. Use of corporate treasury funds for electoral advocacy

is inherently likely to corrode the political system both by

actually corrupting political officeholders and by creating

the appearance of corruption. Moreover, such use of corporate

funds diverts shareholders' money to the support of

candidates who the shareholders may oppose.

Congress's interest in preventing these pernicious

consequences is compelling, and Congress has chosen a valid

message of achieving it, requiring a corporation to fund its

electoral advocacy through the voluntary contributions of

officers and shareholders who agree with its political

statements.

The Solicitor General's brief further stated:

Corporate participation in candidate elections creates a

substantial risk of corruption or the appearance thereof.

Corporations can use electoral spending to curry favor with

particular candidates and thus to acquire undue influence

over the candidates' behavior once in office.

The record in McConnell, which is by far the most extensive

body of evidence ever compiled on these issues, indicates

that during the period leading up to BCRA's enactment,

Federal office-holders and candidates were aware of and felt

indebted to corporations and unions that financed

electioneering advertisements on their behalf or against

their opponents.

The nature of business corporations makes corporate

political activity inherently more likely than individual

advocacy to cause quid pro quo corruption or the appearance

of such corruption. Even minor modifications in complex

legislation have great potential to benefit or burden

particular companies, industries, or sectors. The economic

stake of corporations in the nuances of such matters as

industry-specific tax credits, subsidies, or tariffs

generally dwarfs that of any set of individuals.

And when those benefits can be obtained through a game of

``pay to play,'' corporations are better suited than

individuals to afford the ante. Corporate managers need not

assemble a coalition of the like-minded; they can draw on the

firm's entire capitalization without seeking the approval of

shareholders. If only businesses can afford the investment

necessary to pursue rents in this way, only businesses can

reap the (even larger) reward. And the public perception that

businesses reap such rewards from legislators whom they

support in campaigns creates an appearance of corruption that

corrodes popular confidence in our democracy.

At the heart of the Citizens United case is a critical question: Do the cherished individual rights protected by the Constitution extend in the same manner to corporations? Corporations, after all, are artificial creations of law, provided for by acts of Congress and the State legislaturs, and endowed under these laws with perpetual existence, special tax status, and other privileges, all for the sole purpose of economic gain. The resolution of this question in the affirmative will have wide-ranging and unpredictable results for our legal system.

For example, if the Court determines corporations have first amendment rights, it will be logical that corporations also have fifth amendment rights against self-incrimination. Is a corporation ``endowed by its creator with inalienable rights''? Just last year the Court found that the second amendment right to bear arms is a personal right. If the Court were to determine that corporations had the same rights as persons, would corporations have the right to arm themselves? Would lobbies of Fortune 500 companies contain grand weapon caches? The absurdity of the argument should be apparent to the members of the Court.

John Marshall, former Chief Justice of the Supreme Court, wrote in 1819 that corporations were ``an artificial being, invisible, intangible.'' Therefore, he stated, ``Being the more creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.''

Essential to a corporation's existence is a first amendment right to speak about their products and services. Essential to a corporation's existence is the right to sue for the theft of its intellectual property. Essential to a corporation's existence is the right to enter into contracts. Not essential to a corporation's existence is the ability to contribute unlimited funds to political candidates.

It is for this reason and others that the Supreme Court has repeatedly and consistently upheld a ban on direct contributions to political candidates by corporations and unions. Chief Justice Roberts stated at one point during the argument in the Citizens United case that: ``We do not put our First Amendment rights in the hands of FEC bureaucrats.'' I agree. And that is why the Court has repeatedly upheld bans passed by the Congress of the United States and by the State legislators on unlimited corporate or union spending in elections.

Under current law, corporations are free to give to political candidates through political action committees. In an editorial in the Boston Globe entitled ``Corporations Aren't People Yet,'' the editorial board rightly states: ``Even under current financial restrictions, health care industry groups are pouring millions of dollars into Congressional campaigns in the hope of thwarting reforms that might constrain their members.''

A September 10, 2009 editorial in the Philadelphia Inquirer stated:

Allowing corporations to flood elections with their

aggregate corporate wealth would place a heavy thumb on the

scales of democracy. If a certain industry did not like the

way a Senator voted on environmental regulations, for

example, there would be nothing to stop that industry from

dumping $200 million into the campaign of that Senator's

opponent.

The editorial goes on to say:

If the high court rules now that corporations have the same

political speech rights as individuals, average citizens will

have that much more trouble being heard . . . the distinction

between corporate speech and individual speech is clear

enough, and the importance of limiting the undue influence of

money and politics is significant enough that the court, in

all its wisdom, should leave well enough alone.

I agree.

In conclusion, the Court should not overturn precedent and Congress's clear intent to limit corporate contributions to political candidates. In summary, there are three simple points raised by the Court's consideration of the Citizens United case. First, whatever one thinks of a first amendment right for corporations, it is not appropriate for a nondemocratic branch of government to raise a question of the broadest scope at the last minute when

such a question was not raised in the trial court and there is no ability to build a record.

Congress is the most democratically elected branch of government and should be able to make laws that do not stand in the face of the Constitution whether or not the members of the Court would themselves support such legislation if they served in the elected branches of government.

Secondly, the principle enshrined in law for many years was that corporations, because of their artificial legal nature and special privileges, including perpetual existence, pose a unique threat to our democracy. However, the current court seems poised to find that Thomas Jefferson, Theodore Roosevelt, and others were wrong despite there being no record built on this point in this case. In McConnell, there was a record built to support the decision. Here, the trial court never examined the idea of corporations having broad first amendment rights. The Court is reaching to find such a conclusion as part of the Citizens United case.

Lastly, I stress again to my colleagues the implications of the decision the Court may reach in this case. The Court is considering a question that may lead to corporations being treated as ``persons'' under the Constitution, would allow corporations to assert a fifth amendment right to refuse to testify under oath and to keep documents from lawful investigations, and would allow corporations to be subject to individual tax brackets.

Are my colleagues prepared to provide such rights to corporations? Are my colleagues prepared to pass legislation that taxes corporations and persons at the same rate? If the Court provides full first amendment rights to corporations, there is no reason that corporations could not receive the benefits as well as the responsibilities of being a person.

Justice Sandra Day O'Connor wrote in the McConnell decision, and I think with such accuracy, that ``money, like water, will always find an outlet,'' and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. Again, Justice O'Connor knew better than most jurists, as a former Arizona State Senator, and majority leader of the Arizona State Senate. I hope and wish that the current Court heeds the words of this brilliant jurist who had real-life experiences in politics.

Needless to say, I am very concerned about the integrity of our elections should the Supreme Court rule to overturn the Austin decision. I sincerely hope that the Justices will practice restraint and rule in a manner consistent with judicial precedent and the Constitution of the United States of America.

I again want to, as I have on many occasions, thank my friend from Wisconsin, a man of courage and a man of integrity, and a man I have always been proud to be associated with on issues such as these that are important to the integrity of the institution that we both try to serve with honor.

I yield the floor.

Mr. President, last year, the President of the United States, during his campaign, stated that there was going to be a change in the way we do business here in our Nation's Capitol, and that when it comes time for a conference on a bill that the American people would be brought in; that C-SPAN cameras would be there as Republicans and Democrats in a room that was open to the American public; that they would sit down and negotiate and come forward with results from a process that the American people would all be aware of. I have the direct quote here.

So what is going on today? Here is the bill from the HELP Committee. This is only some 600 pages. And over here we have the Finance Committee bill, some 1,500 pages. And not far from here--very close to here--there is a handful of Democrats and administration people behind closed doors who are reconciling these two bills. Sooner or later they will come out of that room--fortunately no longer smoke filled, but certainly with no access or information available for the American people--with perhaps a 2,100-page bill which has yet to be on the Internet so that the American people can see it. A remarkable process. No one should wonder then about the cynicism that is out there in America about the way we do business in our Nation's Capitol.

Less than 6 months ago, the President stood before a receptive audience and he told the members of the American Medical Association, and I quote him:

Now, I recognize that it will be hard to make some of these

changes if doctors feel like they're constantly looking

over their shoulders for fear of lawsuits. Now I

understand some doctors may feel the need to order more

tests and treatments to avoid being legally vulnerable.

That's a real issue. I do think we need to explore a range

of ideas about how to put patient safety first, how to let

doctors focus on practicing medicine. I want to work with

the AMA so we can scale back the excessive defensive

medicine that reinforces our current system. So this is

going to be a priority for me.

That is a quote from the President back when he spoke to the AMA less than 6 months ago. Yet in this 600-page document there is not a mention of medical malpractice reform. In this 1,500-page document there are 20 pages of sense-of-the-Senate language. In case there is anyone who doesn't know what sense of the Senate means, it means exactly that. It does not mean law.

So the President of the United States talks to the AMA and tells them that we are going to bring about change. We are going to stop this practice of defensive medicine, which by the way, the estimates say account for as much as $200 billion a year added to health care expenses. But what have we got here, and here, and going on behind closed doors? Does anybody believe the Democrats are going to come out with anything that is meaningful on medical malpractice reform? No. But what they will do is to say that we are going to try some demonstration projects. We are going to try some demonstrations.

In fact, on September 9, 2009, before a joint session of Congress, the President went a step further and stated:

Now, finally, many in this Chamber--particularly on the

Republican side of the aisle--have long insisted that

reforming our medical malpractice laws can help bring down

the cost of health care. Now, I don't believe malpractice

reform is a silver bullet, but . . . defensive medicine may

be contributing to unnecessary costs. I know that the Bush

administration considered authorizing demonstration projects

in individual States to test these ideas.

And by the way, the reason why they did that was because they couldn't get meaningful malpractice reform through the Congress. Continuing the quote from the President:

I think it's a good idea, and I'm directing my Secretary of

Health and Human Services to move forward on this initiative

today.

Shortly thereafter, the President did issue a memo on medical malpractice reform where he stated:

We should explore medical liability reform as one way to

improve the quality of care and patient-safety practices and

to reduce defensive medicine.

So we all read with great interest about the new initiative. The memo went on to state:

We must foster better communication between doctors and

their patients. We must ensure that patients are compensated

in a fair and timely manner for medical injuries,

while also reducing the incidence of frivolous lawsuits. And

we must work to reduce liability premiums.

The memo concluded with the grand policy crescendo and a request that the Secretary of Health and Human Services announce:

. . . that the department will make available demonstration

grants to States, localities, and health systems for the

development, implementation, and evaluation of alternatives

to our current medical liability system.

There is nothing to be demonstrated. We already have two demonstration States--California and Texas--where medical malpractice laws are working. What is needed is leadership. Despite all the promises, the President and his party have yet to put forward any real medical malpractice liability reforms as part of either of the two health bills that have been shepherded through two Senate committees that are being merged behind closed doors by a select few.

I wish to point out that every time we tried to get an amendment on the 600-page bill--not the 1,500-page bill--those amendments to do even the slightest change in medical malpractice were voted down on a party- line basis. It is a failure of leadership.

How many patients are subjected to unneeded and unwarranted tests and procedures--some of which are certainly not painless--because the doctor has to perform defensive medicine? How many medical practitioners in America today are like the chief of surgery, the surgeon I met at the Palmetto Medical Center in Miami, who said: No, I don't have insurance. I couldn't afford the premiums. I don't have insurance. But if they sue me, all they can do is take everything I have. What kind of incentive is that for people to engage in the medical profession?

As I said, the Finance Committee bill--1,522 pages--contains 20 lines of nonbinding sense-of-the-Senate language that merely expresses a view that ``health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance.'' Let me repeat that. This is the 1,500-page bill. In 1,500 pages, there are 20 lines of sense-of-the-Senate language which says: ``Health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance.''

I am not making that up. I am not making it up. It surely does present an opportunity to address issues related to medical malpractice reform. However, the other side passes on such an opportunity. It is a fact that just the narrowest specifics of medical liability reform could save $11 billion this year alone. As I said, there are some estimates which claim it could be as much as $200 billion when you look at the defensive medicine that is being practiced today.

California addressed this precise problem in 1975 by passing legislation that capped jury awards for ``noneconomic'' damages such as pain and suffering in medical malpractice suits. Not only does this cap reduce the amount of damages but it has had the effect of deterring unwarranted lawsuits. Malpractice filings have fallen in almost every county in California, medical malpractice insurance premiums have dropped, and patient costs have lessened.

In Texas, the trial lawyers had created such a problem for lawsuit abuse that patients didn't have access to doctors for several primary and specialty care services. Women couldn't find OB-GYNs. Several counties didn't even have neurosurgeons or anesthesiologists. Texas put in place a new structure that ensured patients got full compensation for their losses while at the same time curbing lawsuit abuse. In Texas, ``Patients are the ultimate beneficiaries of the tort reform measures passed in 2003,'' said Dan Stultz, M.D., president/CEO of the Texas Hospital Association.

It's clear that hospitals are able to attract more

specialty physicians and offer new or expanded services that

have enhanced patients' access to care and saved lives.

A survey conducted by THA--that is the Texas Health Association--in July 2008 found that 85 percent of hospitals are finding it easier to recruit medical specialists and subspecialists.

We could replicate these success stories across America, but the other side has refused to consider medical malpractice amendments to the bills. Instead, the Democrats and the White House are attempting to buy the silence of American medical associations and doctors everywhere who support reform by increasing the deficit by $250 billion in Medicare physician payment increases.

CBO estimates the medical malpractice reform would reduce the Federal deficit by $54 billion over the next 10 years. Others say it is as high as $200 billion. The question is, is there anyone who denies that medical malpractice reform would not reduce health care costs in America? Is there anyone? Of course not. This bill is ample testimony of the influence of the trial lawyers of America on this body. We should be ashamed.

Talk is cheap. This issue requires real leadership. I believe the President needs to stand by his word and put forward real medical malpractice reforms rather than simply request applications for demonstration grants. I hope the President will demonstrate a willingness to listen and a willingness to reach a bipartisan agreement on this important issue. Patients, doctors, hospitals, and taxpayers need action.

We are going through an interesting process. Mr. President, 1,522- page and 622-page bills are being merged behind closed doors with a handful of elected representatives, leaving out not only everyone on this side of the aisle and most of the people on that side of the aisle, but the American people are being left out of this process. The American people are getting more and more angry. I don't think this will go over well with the American people. In fact, I think they will steadfastly reject it.

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

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

Madam President, parliamentary inquiry: What is the pending business before the Senate?

And then?

Madam President, thank you.

I suggest the absence of a quorum.

Mr. President, later today--in fact, as I understand, in a very short time--the Senate will vote on the conference report to accompany the fiscal year 2010 Department of Homeland Security appropriations bill. This conference report spends approximately $42.7 billion, 6.6 percent above last year's bill. I am sure many American households would love a 6-percent increase in their budget but cannot afford it. The Federal Government can't afford it either.

Specifically, this conference report contains 181 congressionally directed spending items totaling over $269 million. As far as I can tell, none of these projects was requested by the administration, authorized, or competitively bid in any way. No hearing was held to judge whether these were national priorities worthy of scarce taxpayers' dollars.

By the way, as I recall, when we first started with the Homeland Security Appropriations bills, we had decided at that time there would be no earmarks. So the next time we didn't do them. Then there are a few more. Now there are 181 of them--181, totaling over $269 million. I do not need to remind Americans--I might want to try to keep reminding the appropriators--the Federal deficit now stands at $1.4 trillion. It is an all-time high. Americans are losing their jobs and their homes at record rates. What are we doing? We just keep on spending.

Let's take a look at some of the earmarks included in this conference report: $4 million for the Fort Madison Bridge, in Fort Madison, WI. How is that related to homeland security? There is $3.6 million for a Coast Guard Operations Systems Center in West Virginia. Why would the Coast Guard Operations Systems Center be located in a landlocked State? There is $200,000 to retrofit a college radio station in Athens, OH. Let me be clear here. This is to appropriate funds for homeland security. Obviously high on somebody's list is $200,000 to retrofit a college radio station. My, my, my.

There is $900,000 for the City of Whitefish Emergency Operations Center in Whitefish, MT. The population is 5,849. That comes out to $153.87 per resident which is paid for by my taxpayers and all American taxpayers.

There is $250,000 to retrofit a senior center in Brigham City, UT. The last time I checked, senior centers are important but they have very little relation to homeland security. There is $125,000 to replace a generator in La Grange Park, IL. I have to say, maybe there is something we don't know here. Maybe there is a reason why we need to retrofit a college radio station in Athens, OH; maybe there is a reason we need to replace a generator in La Grange Park, IL; maybe there is a reason why we have to spend $250,000 to retrofit a senior center in Brigham City, UT in the name of homeland security; maybe there is a reason to spend $130,000 to relocate the residents of 130 homes in DeKalb, IL. But we will never know because we don't have any hearings, we don't have any authorization. We just go ahead and spend the money-- 6.6 percent over last year. The original intent was there were not going to be any earmarks. Amazing.

In addition to the earmarks contained in the conference report, Congress continues to fund programs that the President, as part of his budget submission, had recommended terminating or reducing. This is the President's budget submission. These are the requests of the President that certain programs be terminated because

they are unnecessary and unwanted and redundant. Remember, this is in the face of a $1.43 trillion deficit. We are still funding them, no matter what the President of the United States says and no matter what good sense says.

The first amendment I tried was to terminate a terrestrial-based, long-range maritime radio navigation system called the LORAN-C. The Bush and Clinton administrations sought to terminate the program. They tried. The current administration states in its budget that, although the program is not fully developed, it is already ``obsolete technology.'' This is what the President says:

The Nation no longer needs this system because the

federally supported civilian global positioning system, GPS,

has replaced it with superior capabilities.

Is there anybody who doubts that GPS is a superior capability?

The elimination of this program, according to the

President, would achieve a savings of $36 million in 2010 and

$190 million over 5 years.

Those are not my words, those are the words of the administration. So what have the appropriators done? They continued to fund it. When I offered an amendment to eliminate that obsolete technology that the Nation no longer needs, 36--count them--36 of my colleague also supported it. The majority party in the Senate did not support the administration's view that this program should be eliminated and this conference report continues to fund the program into next year, rather than cutting funding immediately--as we should have done a long time ago.

My other attempt to support the President's effort to eliminate wasteful government programs also failed. The administration proposed in its 2010 budget to cut the Over-the-Road Bus Security Program because the money was not awarded based on risk, as recommended by the 9/11 Commission, and the program has been assessed as not effective.

The appropriators have now gone against the recommendations of the 9/ 11 Commission, they have gone against the recommendations of the President of the United States, and we will continue to spend another $6 million. I offered the amendment to eliminate the program. The amendment was defeated by a vote of 47 to 51, so we will spend another $6 million that the administration says we do not need and that clearly is unnecessary to be funded.

During the Senate consideration of the bill, I filed a total of 28 amendments to strike earmarks and end funding for programs that the President had sought to terminate. Not surprisingly, my efforts were rebuffed each time by the members of the Appropriations Committee. The American people are tired of this process, they are tired of watching their hard-earned money go down the drain. Earlier this year, the President pointedly stated, and I quote him:

We cannot sustain a system that bleeds billions of

taxpayers dollars on programs that have outlived their

usefulness, or exist solely because of the power of

politicians, lobbyists or interest groups. We simply cannot

afford it. . . . We will go through our Federal budget--page

by page, line by line--eliminating those programs we don't

need, and insisting those we do operate in a sensible and

cost-effective way.

This is the document. The President went through it line by line. So we offered amendments to eliminate these programs. So of course the appropriators won again. They not only voted against my attempts to strike wasteful and unneeded spending, they also eliminated a provision that was supported by 54 Members of the Senate to mandate the completion of 700 miles of fence along the Southwest border by December 31, 2010. This elimination will only serve to weaken our efforts to secure the border. We know that fencing alone is not a panacea to every security issue on the border, but there is no doubt that increased fencing bolsters Customs border patrol efforts to secure our border.

Additionally, the other body's leadership added language that prohibits use of the funds in this act or any other act for the release of detainees held at Guantanamo into the United States, its territories and possessions. By extending this prohibition to U.S. territories and possessions, the conference report further restricts the release of detainees enacted into law in the supplemental appropriations act for fiscal year 2009. The conference report also restricts transfers of detainees from Guantanamo, limiting them to only transfers for the purpose of prosecution or detention during legal proceedings, and requires the President provide a plan to Congress 45 days prior to transfer. These provisions allow detainees to be tried for acts that amount to war crimes in Federal criminal courts and would authorize bringing detainees into the United States for that purpose.

I will continue to believe that war crimes--and by that I include the intentional attacks by civilians that resulted in the loss of nearly 3,000 lives on September 11, 2001--should be tried in a war crimes tribunal created especially for that purpose. The Military Commission's Act of 2009 is a result of extensive input and coordination with the Obama administration. It should be the vehicle for the trial for the horrendous war crimes committed against thousands of innocent American civilians, rather than bringing detainees from Guantanamo to the United States to face trial in a domestic Federal criminal court.

I am sure that many of my colleagues read with interest the views of former Attorney General of the United States Michael Mukasey in the Wall Street Journal on Monday, October 19, in which he opposes trial of these detainees who are suspected of being responsible for the 9/11 attacks in Federal criminal court. He says:

The Obama administration has said it intends to try several

of the prisoners now detained at Guantanamo Bay in civilian

courts in this country. This would include Khalid Sheikh

Mohammed, the mastermind of the September 11, 2001 terrorist

attacks, and other detainees involved.

The Justice Department claims our courts are well suited to the task. This is the former Attorney General of the United States who says:

Based on my experience trying such cases and what I saw as

Attorney General, they are not.

That is not to say civilian courts cannot ever handle terrorist prosecutions, but rather their role in a war on terror--to use an unfashionable phrase--should be as the term ``war'' would suggest, a supporting and not a principal role.

I ask unanimous consent the article from the Wall Street Journal by the former Attorney General of the United States saying, ``Civilian Courts Are No Place To Try Terrorists,'' be printed in the Record.

Finally, I hope we will have the opportunity to come back to this debate during the floor consideration of the Commerce-Justice- State appropriations bill in the context of the Graham amendment on this issue, which I am proud to cosponsor along with Senator Lieberman.

I am concerned, however, because I understand the administration will soon announce its decision on prosecuting the 9/11 detainees, and indications are the administration will seek such prosecutions in Federal criminal courts. Congress should have the opportunity to speak on this issue before the administration embarks on a course with which I and many law and national security experts strongly disagree.

I am also pleased this conference report does contain a provision that will allow the Secretary of Defense to prohibit the disclosure of detainee photographs under the Freedom of Information Act if he certifies that release of the photos would endanger U.S. citizens, members of the Armed Forces, or U.S. Government employees deployed outside the United States.

I do not have to, nor should I have to, remind my colleagues about the seriousness of the fiscal crisis our Nation is facing. There is no better way to prove we are serious about getting our country back on the right path than by ending the wasteful practice of earmarking funds in appropriations bills, especially a bill as important as this one that provides for funding of our critical homeland security programs.

Our current economic situation and our vital national security concerns require that now more than ever we prioritize our Federal spending. But this conference report does not do that. We cannot continue to spend taxpayer dollars in such an irresponsible manner. So, obviously, I am unable to support this legislation. I encourage my colleagues to vote against it, and if it is passed, I urge the President of the United States to send a message that this is going to stop and veto this bill and every other bill that is larded down with earmarked porkbarrel projects. It is time for a change, a real change.

Finally, there are some angry people out there. They call them tea parties. They come to the townhall meetings in huge numbers. They write. They call. They e-mail. They Twitter. They tell us they are sick and tired of this. I urge my colleagues to vote no.

I yield the floor.

Madam President, will the Senator yield for a question?

It is my understanding of the proposal that this reform will begin to be implemented in what year?

2013, 2014. But when do the taxes that would supposedly implement this proposal kick in?

So we have 10 years' worth of tax increases to pay for 5\1/2\ years of the implementation of this so-called reform, and then what are the implications in the future?

I have one more question for my colleague. Is there any provision in the legislation, as you have seen it, that has any approach whatsoever to medical malpractice reform or medical liability reform which, in the view of many experts, could be as much as $100 billion to $200 billion a year?

Isn't that incredible?

Isn't it true, as much as we respect the Congressional Budget Office and their figures as to the amount of money that can be saved by implementing meaningful medical malpractice reform, such as is the case in the State of Texas, that it doesn't reduce the costs as far as litigation is concerned? Not only that, but I don't believe it is calculated using the way they calculate costs: The incredible increase in health care costs associated with the practice of defensive medicine, with doctors prescribing unneeded, unnecessary and, many times, because of the nature of the procedure, unwanted additional tests and procedures because that physician is practicing what we call defensive medicine, which is the fear of finding themselves in court; and not only because of the increasing premiums for medical malpractice but also obviously the time, the effort, the energy, including damage to reputation that could accrue from a lawsuit brought against that physician.

Madam President, isn't it absolutely incredible that in the name of reducing health care costs, and with the burden that rising health care costs impose on every American family, that there should not be one provision--one meaningful provision--for medical liability reform, which is, in the judgment of any objective observer--except maybe the trial lawyers--something that must be implemented if you are going to have a serious effort at reducing the cost of health care in America?

I thank my colleague.

Madam President, I congratulate the Senator from South Dakota on a very important statement. I see the Senator from New Hampshire and others on the floor waiting to speak on this issue. I will be brief.

As the majority leader begins discussions behind closed doors to create the Senate bill that he is going to bring to the floor, I think it is important for the American people to understand the impact these policies will have on the cost of health insurance premiums, tax rates, and our economy for generations to come.

I think we should understand the smoke and mirrors used to make the Democrat proposal appear to improve the budget over the next 10 years. The following taxes start next year. If you have insurance, $201 billion is raised in excise taxes on health plans. If you don't buy a plan, or you buy one that the government doesn't think is good enough, the concept proposal raises $4 billion in fines on the uninsured. If you are an employer who today cannot afford to provide health insurance to your employees, which is the case with small business, the ones hurting the most--not Goldman Sachs or JPMorgan but the small businesses--the concept proposal raises $23 billion in employer penalties and contributions. If you use medical devices, such as hearing aids or artificial hearts, the concept proposal raises taxes by $38 billion on medical device manufacturers. Who will pay for that in the long run? The user. If you take prescription drugs, the concept proposal raises $22 billion in new taxes on medicines.

The Congressional Budget Office estimates that Americans will face higher health insurance premiums, while waiting 4 years for the reform proposal to begin. This gimmickry is incredible. The President and Senate Democrats claim the proposal is under $1 trillion and slightly reduces the deficit over 10 years. That is a joke--ten years of taxes but only 5\1/2\ years of implementation. To get the true 10-year cost of implementation, you should look at the

10 years beginning in 2013. Using the CBO numbers, we are told that the proposal spends $1.8 trillion. That is the real cost of this proposal.

You might be justified in wondering what Americans get for that $1.8 trillion. The answer is more government, with 13 million more people placed into the failed Medicaid Program. Medicaid is a program that is busting the Federal budget and State budgets all over America. Medicaid is a program that fails in patients having access to physicians. Forty percent of doctors will not see Medicaid patients. Medicaid is a program that fails in health outcomes for low-income Americans. We are not going to give low-income Americans more options for better health coverage; we are just giving them the status quo.

It is bad enough that the proposal massively increases government regulation of health care and insurance, massively expands the government-sponsored Medicaid Program--which the States cannot afford to pay for, as we all know--massively cuts Medicare and drives up insurance premiums in the process. But the proposal ignores what Americans want: less government, less taxes, more freedom, and more choices.

The concept paper in the Senate Finance Committee--it is not even a bill--slams Americans with an entitlement program that will grow faster, according to the CBO, than the economy, while at the same time dramatically increasing the tax burden on all Americans.

Let's restate the obvious about the Senate Finance Committee concept proposal. As the majority leader conducts his closed-door process to create the Senate bill he will bring to the floor, it is important for the American people to understand what impact these policies will have on the cost of health insurance premiums, on tax rates, and on our economy for generations to come.

I have seen recent information that the Medicare Part D Program, which is touted as a success--which I voted against because it wasn't paid for--is now having--guess what--increased costs. The problem is that we are not addressing the fundamental problems that cause a dramatic increase in health care costs in America. In fact, we are continuing a process that we have done, which is new entitlement programs, without ways to pay for them.

I yield the floor.

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

Madam President, as we take up the conference report to accompany the fiscal year 2010 Energy and Water appropriations bill, it spends approximately $33.9 billion. Let's not forget Congress has already appropriated over $92 billion to energy and water-related projects between the emergency appropriations provided in the 2009 supplemental, the continuing resolution, and the stimulus bill.

Equally as important is what this bill doesn't fund. The bill provides only $197 million for the Yucca Mountain nuclear waste repository, putting this project on life support.

The Department of Energy has spent billions of dollars and decades studying the suitability of Yucca Mountain as the Nation's repository for spent nuclear fuel and defense waste. Consistently, the science has borne out that Yucca Mountain is the best site to dispose of nuclear waste. The President has made a point of telling all who would listen that his administration would be guided by science and not politics. At the same time, the President and the Secretary of Energy are saying that Yucca Mountain is no longer an option, even though science has proven that Yucca is safe.

The fact that this administration has political problems with moving forward with the Yucca Mountain storage facility doesn't change the fact that the government has a legal obligation to take this spent waste and that the licensing process is already underway. Shelving the Yucca Mountain facility will slow the deployment of new nuclear generating facilities, constrain our most abundant clean energy source, and hinder efforts to combat climate change.

The conference report that accompanies this bill contains 1,116 congressionally directed spending items--a fancy term for earmarks, which is a fancy term for porkbarrel spending, which is a fancy term for corruption--totalling over $1.05 billion and almost doubling the number of earmarks that were included in the Senate-approved bill. Get that: 1,116 earmarks in this bill--over a $1 billion.

I know that is not much when we consider we have already run up a $9 trillion deficit over the next 9 years, but a lot of Americans would be surprised and think it is a fair amount of money.

None of these projects were requested by the administration. Many of them were not authorized or competitively bid in any way. No hearing was held to judge whether or not these were national priorities worthy of scarce taxpayer's dollars. They are in this bill for one reason and one reason only--because of the self serving prerogatives of a select few members of the Senate--almost all of whom serve on the Appropriations Committee. Sadly, these Members chose to serve their own interests over those of the American taxpayer.

During Senate consideration of this bill I filed 24 amendments to strike these earmarks. The American people are tired of this process, and they are tired of watching their hard-earned money go down the drain. Not surprisingly, my amendments were defeated at every turn by appropriators and Members on the other side of the aisle.

``Here are some examples of the earmarks contained in this bill: $2 million for the Algae Biofuels Research, WA; $750,000 for the Algae to Ethanol Research and Evaluation, NJ; $1.2 million for the Alternative Energy School of the Future, NV; $6 million for the Hawaii Energy Sustainability Program, HI; $6 million for the Hawaii Renewable Energy Development Venture, HI; $2.25 million for the Montana Bio-Energy Center of Excellence, MT; $10 million for the Sustainable Energy Research Center, MS; $450,000 for the Vermont Energy Investment Corporation, VT; $1.2 million for the Hydrogen Fuel Dispensing Station, WV; $1.25 million for the Long Term Environmental and Economic Impacts of the Development of a Coal Liquefaction Sector in China, WV; $1 million for the Alaska Climate Center, AK; $5 million for the Computing Capability, ND--whatever that is; $1 million for the Performance Assessment Institute, NV; $1 million for the New School Green Building,

Mr. President, I send amendment No. 2626 to the desk, and I ask for its immediate consideration or, if necessary, set aside the pending business and call up amendment No. 2626.

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

Mr. President, I come to the floor with an amendment that would eliminate another unneeded and unwanted earmark which is suggested by the President of the United States.

Before I go into that, I ask unanimous consent to have printed in the Record an article from this morning's Washington Post entitled ``Ex- Staffers Winning Defense Panel Pork, Study Finds.''

Mr. President, I quote from the beginning of it, something that is well known but continues to be authenticated about the corruption of the process that we go through in appropriations. It says, ``Ex-Staffers Winning Defense Panel Pork, Study Finds.''

In the coming year's military spending bill, members of a

House panel continue to steer lucrative defense contracts to

companies represented by their former staffers, who in turn

steer generous campaign donations to those lawmakers, a new

analysis has found.

Not an astonishing finding but, again, authenticating of the corruption that goes on around here and the reason Americans are fed up.

The Center for Public Integrity found that 10 of the 16

members of the House subcommittee on defense appropriations

obtained 30 earmarks in the bill worth $103 million for

contractors currently or recently employing former staffers

who have become lobbyists. The analysis by the Washington

watchdog group found that earmarks still often hinge on a web

of connections, despite at least three criminal

investigations of the practice that became public in the past

year.

Mr. President, I bring forward another amendment--this will be my sixth--to eliminate a program and the appropriations for it that the President of the United States has asked for. I often quote from this document. This will be the sixth one. This document is entitled, ``Terminations, Reductions and Savings, Budget of the U.S. Government, Fiscal Year 2010.''

Again, I would like to read from the introduction. This comes from the administration. It says:

The President's 2010 Budget seeks to usher in a new era of

responsibility--an era in which we not only do what we must

to save and create new jobs and lift our economy out of

recession, but in which we also lay a new foundation for

long-term growth and prosperity. Making long overdue

investments and reforms in education so that every child can

compete. . . .

It goes on and on. In the next paragraph:

Another central pillar of a sound economic foundation is

restoring fiscal discipline. The administration came into

office facing a budget deficit of $1.3 trillion for this year

alone--

By the way, I think that is up to $1.4 trillion now--

and the cost of confronting the recession and financial

crisis has been high. While these are extraordinary times

that have demanded extraordinary responses, we cannot put our

Nation on a course for long-term growth with uncontrollable

deficits and debt.

It goes on to talk about the problems we face.

[T]he President has announced a procurement reform effort

that will greatly reduce no-bid contracts and save $40

billion, and at the Cabinet's first meeting, he directed

agency heads to identify at least $100 million in

administrative savings.

Then it says:

This volume is the first report of that effort. In it, the

Administration identifies programs that do not accomplish the

goals set for them, do not do so efficiently, or do a job

already done by another initiative--and recommends these

programs for either termination or reduction.

We are talking about the administration speaking. We have identified 121 terminations, reductions, and other areas of savings that will save approximately $17 billion next year alone.

It goes on to describe what they are:

Half of these savings for the next fiscal year come from

defense programs and half come from non-defense. No matter

their size, these cuts and reductions are all important to

setting the right priorities with our spending, getting our

budget deficit under control, and creating a Government that

is as efficient and it is effective.

As I said at the beginning of my remarks, this will be the sixth amendment I have offered to support the President's request for reduction or termination of unneeded or unwanted programs. I am confident this will be the sixth time that the appropriators on both sides of the aisle will vote down the President's request--not my request, not my assumption, but that of the President of the United States and the Office of Management and Budget.

By the way, had the Senate agreed with my amendments--which they did not--and supported the call of the President to end programs that do not accomplish the goals set for them, we would have saved the taxpayers $87 million. In this day and age with multitrillion-dollar deficits, $87 million is not a lot around this town, but it certainly is back in my home State of Arizona.

What this amendment does, and I quote again from the President's document, and I will read from it:

The Budget supports public broadcasting through increased

appropriations to the Corporation for Public Broadcasting and

eliminates the unnecessary Public Telecommunications

Facilities Grant Program.

Let me make it clear. The administration is supporting increases in public broadcasting but is trying to eliminate the unnecessary Public Telecommunications Facilities Grant Program in the Department of Commerce.

PTFP funding equals less than 4 percent of the Corporation

for Public Broadcasting funding and has in recent years

supported the transition to digital television broadcasts

which will be completed in fiscal year 2009.

The administration goes on to say:

Since 2000, most [of these] awards have supported public

television station's conversion to digital broadcasting.

Digital broadcasting facilities mandated by the Federal

Communications Commission will be completed in fiscal year

2009, and there is no further need for this program.

Again, it goes on to say:

The Administration proposes to support public broadcasters

through CPB, and the

Budget includes $61 million for the Corporation for Public

Broadcasting in 2010, which is in addition to the $420

million enacted advance appropriation, for total proposed

2010 resources of $481 million, nearly $20 million above

2009. The Budget also includes an advance appropriation

request for the Corporation for Public Broadcasting in 2012

of $440 million to support public broadcasters. The

Corporation for Public Broadcasting funds can support the

same types of capital projects as PTFP funding as well as

stations' operating and programming costs. . . .

The National Telecommunications and Information

Administration, the Commerce Department bureau that has

administered this program, was provided $4.7 billion in the

American Recovery and Reinvestment Act to implement the new

Broadband Technology Opportunities Program. Terminating this

program will enable the NTIA to focus its efforts on BTOP,

[the Broadband Technology Opportunities Program] a major

challenge for this small Commerce Department bureau, and one

which will aid the nation's economic recovery and help

promote long-term competitiveness.

These are not my words. These are the words of the President of the United States. We are talking about $20 million savings by eliminating this program.

One of the arguments we are going to hear, and one of the great sacred cows around here, is the Corporation for Public Broadcasting. This does not affect the increase in funds for public broadcasting. It simply terminates a program that the President of the United States believes is not necessary because its mission has been completed.

I imagine we will lose again with appropriators on both sides of the aisle voting not to eliminate a program--again, the sixth amendment I have had trying to implement the recommendations of the President of the United States and the Office of Management and Budget, and while we are staring at a $1.4 trillion deficit for this year and a $9 trillion debt for the next 10 years. Those estimates have been completely underestimated.

I tell the managers, the American people are mad. They are very angry. There is going to be another tea party in my home State this weekend. You know we are mad because we are stealing their children's money; 43 cents out of every dollar we are spending today is on borrowed money. Who is going to pay it back? They know they are. They know our kids and grandkids are. We cannot even eliminate a program or programs the President of the United States requests that we terminate. There will come, and it will come fairly soon, a day of reckoning.

The reason I added this article from the Washington Post this morning is because, I say to my friends and colleagues, there is corruption, and there is corruption in the earmarking and porkbarrel process that goes on. The American people are tired of it. I urge my colleagues to adopt the amendment.

I ask for the yeas and nays.

Mr. President, I yield the floor.

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

Mr. President, this is another attempt to agree with the President's request to cut some unneeded spending. This time, it is only $20 million, which around here is obviously chicken feed. But the President has requested that this $20 million be cut. It is not needed. The program it was funded for is complete.

I ask my colleagues to vote for the amendment.

I yield the floor.

Mr. President, we have to have the regular order at some time.

Mr. President, today the Senate turns to the conference report for H.R. 2997, the Agriculture appropriations bill for fiscal year 2010. This bill spends about $120 billion in direct and mandatory spending. This is on top of the $108 million that was provided under the fiscal year 2009 omnibus bill, as well as the infamous economic stimulus package, which provided another $26.5 billion in Ag spending.

I acknowledge that many of the programs funded by this bill are valued for providing important services to the agriculture community at large, and I commend the members of the Senate Appropriations Committee for reporting this bill in a timely manner. I agree that we should ensure that our farmers stay out of the red, and that some Federal involvement is necessary to assist low-income families under nutrition programs. Unfortunately, Congress once again has conformed to the practice of diverting precious taxpayer dollars into an array of special interest

pork projects which have not been authorized or requested by the administration.

When the bill passed the Senate shortly before the August recess, the bill carried with it 296 ``Congressionally Directed Spending Items'' a fancy new term for earmarks--totaling over $220 million. Now that conferees have had their chance to feed at the trough, the number of earmarks has grown to 461 totaling over $360 million. None of these projects were requested by the administration. Many of them were not authorized, or competitively bid in any way. No hearing was held to judge whether or not these were national priorities worthy of scarce taxpayer's dollars.

Let's take a look at some of the earmarks that are in this bill: $2 million for a fruit laboratory in West Virginia; $819,000 for catfish genome research in Alabama; $360,000 for a corn ethanol research plant in Washington, DC; $75,000 to promote childhood farm safety in Iowa; $250,000 for the Iowa Vitality Center; $700,000 to improve cattle health in Maine; $300,000 to develop ``Best Practices in Agriculture Waste Management'' in California; $1.3 million for greenhouse nurseries in Ohio, which weren't requested by the administration; $2.9 million for shrimp aquaculture research in Arizona and Massachusetts; $693,000 for beef improvement research in Missouri; $165,000 for maple syrup research in Vermont; $195,000 to research how to increase the lifespan of peach trees in South Carolina; $349,000 for pig waste management in North Carolina; $500,000 goes to the National Wild Turkey Federation in Nebraska, and $250,000 for the Kansas Farm Bureau Foundation for a workforce development program.

The largest earmark in this bill goes to Hawaii. The Aloha State bags $5 million to continue construction of an Agriculture Research Service Center to study agriculture practices in the Pacific. As my colleagues know, ARS construction is one of the most heavily earmarked accounts in government. So much so that the President's budget actually proposed zeroing out ARS construction for fiscal year 2010 because:

Congress routinely earmarks small amounts of funding for

[ARS projects] located throughout the nation. The result of

scattering funding in this manner is that . . . few if any of

the projects are able to reach the critical threshold of

funding that would allow construction to begin. Funding

construction over such a long time significantly increases

the amount of money needed to fully complete these projects,

as well as postponing their completion for many years.

So here we have a program that is earmarked so severely that it delays and drives up the costs of approved construction projects. Not only are we funding this Hawaiian facility, but conferees approved 21 earmarks totaling over $71 million for ARS facility construction, some of them airdropped in conference.

During Senate consideration of this bill, I filed over 300 amendments to strike every earmark as well as cut funding to several USDA programs that the President proposed for termination including the ARS facilities account. It should come as no surprise that my amendments were defeated at every turn by appropriators on both sides of the aisle.

These projects may be meritorious and helpful to the designated communities, but considering our current budgetary crisis, it's inappropriate to include them on this year's agriculture spending bill, especially when they have been identified for termination or reduction. I hope my colleagues will agree that we have higher spending priorities that are directly related to the purposes of this agriculture bill. This bill is intended to address farmers, women, children, and rural communities with the greatest need, not for piggybacking pet projects that garner the support of special interest constituents.

I know that many of my colleagues have spoken about the economic struggles of America's hardworking farmers and low-income families. The farmers and struggling families I know are their tired of watching their hard-earned money go down the drain.

I will oppose this conference report and every other pork-laden bill that comes before this body.

Mr. President, I have an amendment at the desk and ask for its immediate consideration--amendment No. 2629.

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

Mr. President, I say to the distinguished manager, the Senator from Maryland, that I will be glad to interrupt my amendment upon the return of the Senator from Alabama, if he wishes to speak, and then I will continue after that. I thank the Senator from Maryland for her hard work and excellent explanation of the legislation before the Senate.

This amendment would lower health care costs for Americans immediately. It would provide access to safe, less expensive imported prescription drugs. For far too long, powerful lobbyists from the pharmaceutical industry have stood in the way of Americans' access to affordable imported drugs. Their enormous political campaign contributions made in return for political support of their agenda and their secret unsavory deal with the White House in exchange for their support of the health care reform have further contributed to the American people being prevented from accessing cheaper prescription drugs.

Instead, Americans continue to pay 60 percent or higher for the same prescription drugs that are sold in Canada. This amendment is necessary because Americans need access to lower cost drugs now. They need it now due to these difficult economic times. We all know about unemployment. Americans' salaries are being cut, household budgets are slim, and millions of Americans are struggling to make their

monthly mortgage payments. For these reasons, and so many more, Americans should not be forced to wait another day to purchase safe and affordable prescription drugs from outside the United States. While Americans all over the country are having to choose between their next meal and their necessary prescriptions, the large pharmaceutical companies continue to pressure Congress to delay consideration of any legislation to allow the importation of safe and lower priced prescription drugs.

I would like to also point out this is legislation on an appropriations bill, something I have long opposed, and still oppose. But there has been an unusual process taking place, and that process is one which has forced me to come to this situation. On two separate occasions the majority leader of the Senate assured me that legislation would be taken up before the Senate, and both times he has changed his mind. The majority leader resisted consideration of an amendment to allow for the importation of prescription drugs during debate on the Family Smoking Prevention and Tobacco Control Act.

At the time, the majority leader said on the Senate floor:

This is something that should have been done, I am sorry to

say, years ago, not weeks ago.

This issue is important legislation. If it should have been done years ago, then why wasn't it brought up for consideration immediately after the tobacco bill in June? While the stand-alone bill to allow importation--S. 1232--was placed on the Senate's calendar on June 11, 2009, there has been no further effort by the majority leader to call it up for consideration. Instead, he sent me a letter stating:

I committed to take up legislation that would permit the

safe importation of lower-cost prescription drugs as soon as

practicable.

The practicable time was back in June. There is no practical reason to prevent the majority leader from calling up this bill for a vote at any time.

I was told verbally by the majority leader as short a time as 3 weeks ago that upon the completion of consideration of the Defense appropriations bill that this legislation would be brought to the floor of the Senate. Then a week later I was told, no; that is not going to be the case. So I have been waiting for ``as soon as practicable,'' and so have millions of Americans who are looking for cheaper alternatives to the high-priced prescription drugs.

The majority leader also stated in his letter:

If this issue is not addressed during the full Senate's

consideration of comprehensive health reform, I guarantee

that I will move to proceed to S. 1232 before the end of the

year.

The majority leader of the Senate assured me it would be taken up after completion of the Department of Defense appropriations bill, which we have completed. Given the fact that it is possible that the health care reform bill will be brought up under a truncated pressure timeline, I have little faith that real, in-depth consideration of prescription drug import legislation will come about; therefore, I have no choice but to bring this issue up today as an amendment to this appropriations bill.

In the 2008 election cycle, pharmaceutical companies gave almost $30 million in campaign contributions to Members of Congress. Just this year, according to an article published in The Hill, the prescription drug industry has given more than $1 million to Republicans and Democrats, and the companies whip up their protector in Congress each time we bring forward legislation to help Americans get the imported prescription drugs they need.

Earlier this year, I read an e-mail sent by the top lobbyist for Pharmaceutical Research and Manufacturers of America, known as PhRMA-- this was back in June--which stated:

The Senate is on the bill today. Unless we get some

significant movement, the full blown Dorgan or Vitter bill

will pass. We are trying to get Senator Dorgan to back down,

calling the White House, and Senator Reid. Our understanding

is that Senator McCain has said he will offer regardless.

Please make sure your staff is fully engaged in this process.

This is real.

That was an e-mail from a lobbyist of PhRMA, which has given millions and millions in campaign contributions.

Guess what. In the immortal words of Jack Nicholson: I'm back. I am back on the Senate floor, trying to help millions of Americans who have lost their jobs, struggling to put food on the table, by giving them the opportunity to save on their prescription drugs immediately.

Recently, the White House struck a deal with a pharmaceutical company to further protect its profits. The deal was bragged about by the head of the company's trade association, who cashed in for millions of dollars once he wrote the Medicare prescription drug benefit legislation as a Congressman. He was quoted in an article in the New York Times, published August 6, 2009, stating that the White House ``wanted a big player to come in and set the bar for everybody else.''

The same article stated:

Mr. Tauzin said the White House had tracked the

negotiations throughout, assenting to decisions to move away

from ideas like the government negotiation of prices or the

importation of cheaper drugs from Canada. The $80 billion in

savings would be over a 10-year period.

Analyze that comment by the head lobbyist of one of the most powerful lobbies in Washington. He is saying the White House agreed to move away from--in other words, not support--ideas such as government negotiation of prices. Government negotiation of prices is absolutely necessary. We did it in the prescription drug bill, and it has reduced costs. In other words, the pharmaceutical companies would have to compete for Medicare contracts. One would think that is an obvious solution to bringing down costs.

The second, of course, is the importation of cheaper drugs from Canada. Here everybody is talking about reducing health care costs. We know that importation of less expensive drugs would save health care costs for the American consumer. But the White House apparently, according to Mr. Tauzin, agreed they would not support importation of less expensive drugs from Canada--a remarkable comment. You know, people wonder why the tea parties are going on, why the approval rating of Congress is so low--amazing. The Fraser Institute found in 2008 that Canadians paid on average 53 percent less than Americans for identical brand-name drugs. Specifically, the institute found that the most commonly prescribed brand-name drug, Lipitor, is 40 percent less in Canada, Crestor is 57 percent less in Canada, and the popular arthritis drug Celebrex is 62 percent less expense in Canada. Americans would love a 60-percent-off coupon for prescription drugs and deserve such a discount now more than ever.

I have been working on this issue for many years, and I will continue to do so. Americans should not have to wait a day longer for relief from higher prices for drugs. Inexplicably, the majority leader keeps delaying consideration of this needed legislation, which has now forced me to offer an amendment on the current appropriations bill. However, I believe it is necessary to protect all Americans' interests in obtaining affordable prescription drugs. The amendment states that no funds can be used to prosecute those who seek to import prescription drugs that have been approved by the FDA. If the big drug companies are getting an $80 billion savings, shouldn't we give a savings to American consumers? Why not now?

Again, I want to say there is going to be a point of order raised on this bill, and with righteous indignation people will say it doesn't belong on an appropriations bill. We just finished a Defense appropriations bill loaded--and I will have a list of them--with unauthorized appropriations on that bill. Every appropriations bill we take up has unauthorized appropriations, ranging from $300,000 for a museum in Nebraska to the addition of C-17s for $2.5 billion. The argument that somehow we should not be taking up this legislation on this bill flies in the face of what has been common practice around here, even though I do not agree with it.

Let me say this, too. If I had full and complete confidence that this amendment would get a full and complete airing as an amendment on the health care bill, I would be glad to withdraw this amendment. I will be glad to withdraw this amendment if we have assurance this amendment will be taken up on the health care bill. There are all kinds of things that are going to be

done in passage of the health care reform legislation--so-called--on the floor of the Senate.

I see my friend from North Dakota here. I have appreciated his efforts for a long time. He and I have been working on this for a long time. It is a fact that I received the word of the majority leader that this bill would be taken up and that has not happened. That has happened twice. I must say it has never happened to me before in the years I have been a Member of the Senate.

I ask unanimous consent to have printed in the Record the New York Times article of August 6, 2009, ``White House Affirms Deal on Drug Costs.''

I also ask unanimous consent to have printed in the Record the letter from Senator Reid to Senator Snowe, Senator Dorgan, and to me.

Mr. President, I wish to say again that we have been told time after time that this legislation would come before the Senate. It has not. I do not know what process the majority leader will use-- reconciliation, fill up the tree, vote on cloture, make this amendment nongermane. I have no confidence. If I had the confidence that this amendment would be taken up in a regular order fashion and that the full Senate would vote on it on the health reform bill, I would have some confidence we could get it done. In the absence of that, I will seek a vote on this amendment.

If there is a budget point of order on this amendment, let no one be fooled: It is not because they do not want to violate the budget rules of the Senate, because they violated them in every possible way in previous appropriations bills, to the tune of billions of dollars.

I yield the floor.

Will the Senator yield for a question?

I am very grateful for the leadership Senator Dorgan has shown on this issue for many years and it has been a pleasure and an honor to work with him on that and many other issues.

I ask my colleague, does the letter that was sent by the majority leader to you and to me and to the Senator from Maine, Ms. Snowe--I know you have read it--does it concern you that the last paragraph of the letter says:

Not withstanding these obstacles, I stand by my earlier

commitment to make sure the Senate considers S. 1232 as soon

as practicable.

And then this is the question I have for the Senator from North Dakota.

If this issue is not addressed during the full Senate's

consideration of comprehensive health reform, I guarantee

that I will move to proceed to S. 1232 before the end of the

year.

My question to the Senator from North Dakota is: Why would there be any question in the majority leader's mind that you or I and Senator Snowe would let a health reform bill go to the floor and be voted on without it being passed? It seems to me, and may I say, because I have been told twice by the majority leader we would take it up--and those commitments have been reversed--would it not concern you a little bit when it says: `` . . . if this issue is not addressed during the full Senate's consideration of comprehensive health reform . . .''

That is my question. That is what I am concerned about, that parliamentary procedures would be used. You and I have seen it before. The tree filled up. Cloture invoked, et cetera, where there have not been amendments that were clearly important to that legislation, not allowed to be considered.

That is my question to my friend from North Dakota.

Would you not feel better if the letter said--I know I would feel better if the letter said: I expect this issue to be brought up in the health reform bill.

Instead, there is a loophole, with all due respect, that if it isn't addressed during the full Senate's consideration, ``I guarantee I will move to it before the end of the year.'' Each day going by, seniors and, in fact, all citizens are paying a higher price for prescription drugs. Frankly, we should never have made that agreement when the tobacco bill was taken up because we could have passed it. Today seniors could be paying as much as 60 percent less for their prescription drugs. But we know what happened. The pharmaceutical companies weighed in with all of their clout. I urge the Senator from North Dakota to go back and get this language changed. The majority leader looked me in the eye and said: We will take this up after we finish the Department of Defense appropriations bill. And then decided not to do it. Maybe the Senator from North Dakota understands why I am skeptical about the interpretation of a letter that could be interpreted so that we don't take it up in the health care reform bill.

If the Senator will yield further for one final question.

I have great sympathy for attempting to schedule legislation in this body. I think our friend Trent Lott maybe didn't invent it, but he used to say that it is like herding cats, conducting business in the Senate. I agree with that.

I know the Senator from North Dakota is aware that no matter what the problems are, if the majority leader says: I will take up this bill, then you have to take his word. My question to the Senator from North Dakota is, can we get a commitment from the majority leader that parliamentary procedures will not be used to block consideration of the issue of importation of pharmaceutical drugs?

The letter is ambivalent.

I have not had that experience.

All I can say to my friend is, if we can get a commitment that parliamentary procedures will not be used to block consideration of an amendment concerning importation of prescription drugs, I will withdraw this amendment from this bill.

Very briefly, I say to Senator Dorgan, I appreciate his efforts, his leadership. I appreciate everything he has done. We have had the privilege of working together on many issues over the years. I wish to be sure that when the health reform bill comes up, there will not be parliamentary obstacles from that happening. I have seen the will of the majority thwarted on the floor of the Senate by certain parliamentary maneuvers--filling up the tree, for example. The Senator from North Dakota is as familiar as I am with some parliamentary procedures which can be employed by the majority and have been employed when both parties have been in the majority to thwart the ability of Senators to have their issues considered. That is what I want to see, is to make sure that when the health reform bill is before us, we will take it up.

But the sentence reads:

If this issue is not addressed during the full Senate's

consideration of comprehensive reform . . .

My question is, why wouldn't it? Why is that sentence necessary? All I can say is that I hope we can get that assurance. If we do, I will withdraw the amendment and allow this appropriations bill to receive full consideration and be passed by the Senate.

We have probably tortured it to death. Considering the fact that reconciliation continues to be held out there as an option by the majority is also a factor about which I have been concerned. All we need is a clarification to make sure there will be no parliamentary obstacles to consideration of the amendment of the Senator from North Dakota, an effort joined by me and Senator Snowe and others, to allow prescription drugs to be imported into the United States.

I yield the floor.

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

Mr. President, I have received assurances that there will be no blocks or impediments to consideration of the prescription drug importation issue, which I and a number of us have been seeking a vote on for a number of years. I have been given assurances that there will be no impediments to bringing that issue up when health reform is before the Senate. Therefore, I withdraw the amendment.

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

Mr. President, this is a pretty simple amendment. It prohibits the spending of $165 million on earmarks. We would free up $165 million and return it to the general pool of operation and maintenance funding. So it is very clear the administration, on the operation and maintenance account, says the bill cuts the O&M account, and this restores some of it.

I again would like to point out that operation and maintenance is one of the most critical aspects of our defense of this Nation. This amendment simply prohibits expenditures on any earmarks in the operation and maintenance account.

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

Mr. President, President Eisenhower warned us about the military-industrial complex. Well, we don't have to worry about the military anymore; it is now just the industrial complex and the lobbyists.

This amendment strikes the $2.5 billion for 10 C-17 aircraft. Again, it used to be the military-industrial complex; now it is the industrial complex. The President, the Secretary of Defense, the Chairman of the Joint Chiefs, the Chief of Staff and Secretary of the Air Force, the commander of U.S. Transportation Command, and the chairmen and ranking members of the Senate and House Armed Services Committees have all agreed with the Secretary of Defense, who says that the ``205 C-17s in the force and on order, together with the existing fleet of C-5 aircraft, are sufficient to meet the Department's future airlift needs--even under the most stressing situations.''

Mr. President, the spending goes on, the beat goes on, and at some time the American people are going to say ``enough.''

Mr. President, the side-by-side here is to basically neuter the intent of my amendment, which calls for competition for earmarks that are intended for for-profit companies. That is all it is, pure and simple. It is very well known how jealously the appropriators guard their earmarking, pork-barreling projects. My amendment, which is a side-by-side, would say we just put earmarks up for competition. The amendment of Senator Inouye will gut that provision.

I ask for a voice vote on this amendment.

Mr. President, this would strike an unrequested $9.5 million earmark for a hypersonic wind tunnel research project called MARIAH. It is up to now some $90 million has been spent; nothing to show for it.

It is an Army program and here is what the Army says:

There are no current operational requirements for a

hypersonic missile program within the Army. No Army missions

currently require flight technologies. The Army does not have

the need for a hypersonic wind tunnel.

It is hard to be more clear than that. So let's have the pork barrelers vote for it again.

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

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, I rise today to discuss the 2010 Defense appropriations bill and the three amendments that will be called up tomorrow on C-17s, for-profit earmark competition, and a particularly egregious earmark on hypersonic wind tunnel development.

Tomorrow the Senate will resume consideration of the 2010 Department of Defense Appropriations Act. This must-pass bill provides $626 billion for the day-to-day operations of our military, including the critical resources that support our commanders as they lead operations in Afghanistan and Iraq.

The bill also contains billions of dollars in wasteful spending, including $2.7 billion in Member-requested earmarks and billions of dollars in unrequested weapons systems, which is where you will find $2.5 billion for the C-17 cargo aircraft. In order to stuff these programs into the bill that the Pentagon did not request and does not want, and to enable Members to continue in their porkbarreling ways, the appropriators cut over $3 billion in the military service operation and maintenance account.

This account is the lifeblood of our military forces. The account provides the military with funds to carry out day-to-day activities, such as the recruitment and fielding of a trained and ready force, all military training, exercises, food, weapons, spare parts, equipment repair, ship overhauls, transportation services, civilian personnel management and pay, and childcare and family centers.

At a time when stress on our force and their families is significant, we are cutting funds from this account to put into this bill unwanted C-17s and Members' pork projects. There were plenty of lobbyists around for the C-17s last week. They were here in abundance. There are others who are seeking these porkbarrel projects.

Unfortunately, there are no lobbyists for the men and women serving in the military. There are no lobbyists to provide them with the much- needed funds in order to conduct the training and the operation and the maintenance and the repair of the equipment and their pay and all of the things that are so vital to maintaining our great military of today.

There are no lobbyists for them. So let's cut $3 billion out of their training, out of their exercises, out of their weapons and spare parts and equipment repairs, ship overhauls, civilian personnel management and pay, childcare and family centers. Cut all of that out and put in $2.5 billion for a C-17 that the military neither needs nor wants.

Just last month, the President spoke in Phoenix, AZ, to the Veterans of Foreign Wars. In that speech, the President's words were quite compelling about waste and porkbarrel spending in Defense bills. In that speech the President promised an end ``to special interests and their exotic projects'' and reaffirmed that he was leading the charge to kill off programs such as the F-22, the second engine for the Joint Strike Fighter, and the outrageously expensive Presidential helicopter.

The President went on to say:

If a project does not support our troops, we will not fund

it. If a system does not perform well, we will terminate it.

And if Congress sends me a bill loaded with that kind of

waste, I will veto it.

Well, we will now see if the President is willing to follow through on that bold declaration. On April 6, 2009, Secretary Gates personally issued his highly touted statement on the 2010 defense budget. In that statement, he recommended, among other things, ending production of the F-22, terminating the Presidential helicopter, and completing production of the C-17 cargo aircraft. Secretary Gates said with the 205 C-17s already in the force and currently on order, the Department's analysis was that the military had enough C-17s.

While we may have won a small victory against the defense industrial complex in July, when the Senate voted 58 to 40 to kill the F-22, it appears the administration has thrown in the towel on reining in spending on the C-17. In May, the House appropriators added eight C-17s into the 2009 supplemental appropriations bill at a cost of $2.2 billion. The Pentagon did not even blink. In July, the House appropriators again added three more C-17s to the 2010 Defense appropriations bill, and with the White House apparently having given up on any kind of fight with Congress on the C-17, and believing they had a green light, the Senate appropriators upped the number of C-17s to 10 aircraft, $2.5 billion.

Beneath the President's Phoenix rhetoric and with $2.5 billion in unrequested C-17s, $2.7 billion in member earmarks and a significant cut in operation and maintenance funding, one would have expected the President and Secretary Gates to be outraged. However, we have heard barely a word of opposition from them. Although the Statement of Administration Policy raised opposition to the additional C-17s and the cuts to operation and maintenance funding, it appears the President is not getting out his veto pen to

take a stand behind his own strong rhetoric on earmarks and government waste.

I know these words will fall on deaf ears, but it is certainly not responsible for Congress to continue to load up appropriations bills-- and, yes, authorization bills--with wasteful and unnecessary spending. Americans all over the country are hurting. People are losing jobs, their savings and their homes. Yet we continue the disgraceful earmarking process, elevating parochialism and patronage politics over the true needs and welfare of our men and women in uniform and the taxpayers.

If Senators think that all sounds too familiar, they are right; it is business as usual. When push comes to shove, nobody seems to really mind. The appropriators know what they need to do to keep the President from threatening to veto a defense spending bill. They know that $2.5 billion in unrequested C-17s, $2.7 billion in Member-requested earmarks, and cuts of over $3 billion to the lifeblood account of our military services won't cause the President to pause a moment before signing such a bill into law. The idea of vetoing a defense appropriations bill that funds the wars in Iraq and Afghanistan is unimaginable, and that is exactly the protection sought by Members when they subscribe to unrequested, costly weapons systems and earmarks.

Servicemembers who defend our Nation around the globe are making great sacrifices. Their families back home are making sacrifices. Because we ask these heroes to forfeit so much, we in Congress should also be ready to make sacrifices. Sometimes that means doing what is best for the Nation instead of doing what is best for one's campaign. Our Nation's security and the welfare of our servicemembers are higher priorities than the favor of special interests or the opportunity to tout the bacon we are bringing home.

Despite what I think is going to happen, I believe that if the President wants to send a message that we are serious about cutting out wasteful and unnecessary and corrupting spending in Congress, he should veto this bill, and we could send it back to him in a New York minute without the pork it is so full of.

I wish to discuss the three amendments.

Tomorrow, the Senate will vote on my amendment to strike the addition of 10 unrequested C-17 aircraft. As I discussed before, the administration strongly objects to the addition of the $2.5 billion in funding for those 10 unrequested C-17s. That brings up a very interesting question: Why would the administration threaten to veto the bill if it included the F-22s, yet strongly object to the $2.5 billion for the 10 unrequested C-17s? It is very interesting. Given how much our airlift capacity currently exceeds operational requirements, I see no reason we should buy more aircraft. It is not just an additional $2.5 billion for these 10 C-17s, it is an additional $100 million a year to maintain and operate them.

One of the great, untold stories of earmarking is that money that is used to fund special interests' projects would otherwise have been used to address the stated needs of our military services. The service chiefs who are in the best position to advise Congress of their priorities are routinely shortchanged so that Senators can fund their pet projects. Each earmark requires departmental administration, and each draws manpower and resources away from critical issues facing a nation at war. I have heard that the impact of these many small earmarks is akin to death by 1,000 cuts. By my preliminary count, there are almost 700 unrequested earmarks in this bill, over 400 of which are not authorized in the National Defense Authorization Act. This represents more than $1.3 billion in funding for unrequested, unauthorized Member interest items, $1.3 billion that would have gone to service priorities. Some have merit. None are military priorities. A few are actually detrimental to the Defense Department. I am referring to earmarks that endure year after year, siphon funding from legitimate programs, and provide no discernable benefit to servicemembers.

Tomorrow, the Senate will cast scrutiny on one such project when we vote on my amendment to strike $9.5 million for the MARIAH hypersonic wind tunnel research program in Montana. It has never been requested in the President's budget. It has never been authorized. Yet it has been appropriated every year since 1998. To date, total Defense appropriations for MARIAH account for $68.5 million. The total would be $74 million if we include unrequested earmarks through NASA; $83.5 million if this year's earmark for MARIAH remains in the bill.

Here we are, Congress has appropriated millions for an unrequested, unauthorized program that is objectionable enough, but the MARIAH program and the contractor that supports it are case studies in the fundamental problems with the congressional appropriations process.

Let me shed a little light on that. MARIAH is a research program intended to develop technologies that would be required to build a national high-speed wind tunnel. Congress originally funded the project through NASA earmarks during the 1990s. NASA responded that they had no interest in the program. From 1998 to 2003, MARIAH was an Air Force program. The Air Force, the leader in hypersonic testing and technology, begged off the program in 2004. So the appropriators moved it to the Army. The Army has no official requirement for this capability and published a report to Congress in 2005 stating their disinterest in the program. Here is an excerpt:

The U.S. Army believes it is premature to include the

MARIAH wind tunnel concept within their budget as a program

of record due to the lack of information and technical data

to show that the concept is feasible. Further, the U.S. Army

has yet to establish an operational requirement to justify

the need for such expenditures in the Future Years Defense

Program. Therefore, the U.S. Army does not plan to fund the

MARIAH wind tunnel effort . . .

Priorities change over time. I asked the Army to detail their current investment in MARIAH and explain how the Army might use this research to develop new capabilities. I received a response yesterday. Here is what the Army said:

There are no current operational requirements for a

hypersonic missile program within the Army. No Army missions

currently require hypersonic flight technologies. The Army

does not plan to budget for hypersonic wind tunnel

development in the [current or future years] since the Army

does not have an operational requirement for a hypersonic

missile.

Finally, when asked whether the MARIAH program provides value-added capabilities, the Army's answer was ``no.''

So the Army's official response and explanation sounds like their 2005 response. Unfortunately, Congress hasn't been listening. We have poured more than $70 million into it with no sign of stopping and with no discernable return on investment. Let me repeat that: no end date, no return on investment.

One group has made out well in the endeavor. Of course, I am referring to lobbyists, including Gage LLC, whose CEO, coincidentally, had been a senior staffer to an appropriator from Montana.

The other big winner is the contractor, a company called MSE Technology Applications located, astonishingly, in Butte, MT. MSE is part of a former Department of Energy facility created in the 1970s to conduct energy research. In 1996, MSE had an agreement with DOD to privatize over the course of 5 years, and DOD provided funding to assist the privatization effort. Simultaneously, MSE executives began a pattern of hiring lobbyists, participating in fundraisers for elected Members of Congress, and taking millions of dollars in earmarks. So much for privatization. In fact, MSE itself has claimed it was entirely dependent on Federal earmarks following the so-called privatization effort.

More than a decade later, not much has changed. The Montana Standard, the local newspaper, reports that 75 percent of MSE's current business comes from Federal earmarks. According to their CEO:

Earmarks can have a negative connotation, but what they

mean is we have contracts.

So this is a company that would not exist without government earmarks. What did MSE pay for these earmarks? Over $2 million in fees to Washington lobbyists and tens of thousands of dollars in campaign contributions. We have the filings. MSE has perfected the

process of using lobbyists to secure Federal funding.

Here is the most outrageous part. In 2000, MSE executives pled guilty to making illegal campaign contributions to Federal candidates. Let me explain. According to a report provided to Congress by the Department of Justice:

MSE, Inc., an engineering corporation headquartered in

Butte, Montana, pled guilty on April 27, 2000, to making

contributions to federal candidates through conduits and

making corporate contributions to federal candidates in

violation of the Federal Election Campaign Act. The

corporation agreed to pay a criminal fine of $97,500 and a

civil penalty to the Federal Election Commission of an

additional $19,500. In addition, the corporation's two

principal officers agreed, as part of the corporation's

probation, to perform community service by lecturing business

groups throughout Montana on the prohibitions of the [Federal

Election Campaign Act], and to implement a corporate

compliance agreement aimed at ensuring that the company did

not violate the [Federal Election Campaign Act] in the

future. The corporation was sentenced on April 27, 2000, in

accordance with the plea agreement.

This company has a criminal record. Yet it still receives congressionally approved earmarks, apparently on the basis of connections between it, its lobbyists, and the offices of Members for whom those lobbyists used to work.

MSE and its MARIAH project are a black hole for Federal funding. MSE executives have benefited financially on the backs of the taxpayers for many years, and the Department of Defense has needlessly wasted over $70 million on MARIAH research that no one wants. Taxpayers' dollars put toward MARIAH were met with resistance from each Federal agency compelled to fund it by previous earmarks. These earmarks have produced no discernible return.

In light of this sordid story--$70 million wasted over 11 years and the prospect of continuing funding for a program no one wants--I ask my colleagues to support my amendment to strike the $9.5 million MARIAH earmark from the fiscal year 2010 Defense appropriations bill.

Finally, I have spoken for many years about the earmarking process and the corruption it breeds. I am deeply concerned over the damage it has done to our country and this institution by its continued abuse. We have made some progress in the past couple years but not nearly enough. Legislation we passed in 2007 provided for greater disclosure. While that was a good step forward, the bottom line is that we simply need more disclosure of earmarks. We need to reduce them, with the final goal of eliminating them entirely. The corruption which stems from the practice of earmarking has resulted in former Members of both the House and Senate either under investigation, under indictment, or in prison. Let's be clear. It wasn't inadequate disclosure requirements which led Duke Cunningham to violate his oath of office and take $2.5 million in bribes in exchange for doling out $70 to $80 million of the taxpayers funds to a defense contractor. It was his ability to freely earmark taxpayer funds without question.

Tomorrow, Senators will have an opportunity to vote on an amendment I have offered that requires earmarks intended for for-profit entities included in the Defense appropriations bill be competitively bid. I repeat: requires earmarks intended for for-profit entities included in the Defense appropriations bill be competitively bid. That does not seem like it should be too tough. Just competitively bid these earmarks.

By requiring full and open competition, Congress can make the process of public funding more transparent and bring to bear the benefits of competition. The results will be lower costs to the government, innovation among contractors and suppliers, and better outcomes for the American taxpayer.

I am not the first person to think this is a good idea. The President and the Appropriations Committee in the House of Representatives are both on record endorsing it. Unfortunately, to date, and despite our good intentions, Congress has not been able to make it happen.

President Obama has promised to fight ``the special interests, contractors and entrenched lobbyists'' that have bloated past appropriations and distorted military priorities. In March of this year, he called the awarding of earmarks for private companies ``the single most corrupting element of this practice'' and said funding for such projects should be evaluated with a higher level of scrutiny and subject to the same competitive bidding process as Federal contracts. I agree, but I would have gone further by calling for the elimination of earmarks altogether.

I was pleased to see our House counterparts expressed interest in competing earmarks intended for private industry. But the Senate Appropriations Committee balked at the suggestion that funding for special interest programs be subject to competition, and the result of recent Senate-House negotiations is that earmarks in the fiscal year 2010 appropriations bills will not have to be competitively bid.

I urge my colleagues to support my amendment. We must not allow this body to go back to the old ways of doing business.

Mr. President, I suggest the absence of a quorum.

Madam President, may I say through the Chair to my friend, the distinguished chairman, I understand there will be side-by- side amendments. I would be glad to enter into a time agreement that is agreeable to the chairman, and not an extended length of time--it is not a complicated issue--and then votes on both side-by-sides. I hope we could announce that agreement shortly, and I thank the chairman for his courtesy.

We are discussing now two amendments, as I understand it, and both of them call for testimony before Congress on meeting the United States objectives on Afghanistan and Pakistan. Many of us have been very concerned about the fact that we have not heard from General McChrystal and General Petraeus on this issue of our strategic policy in Afghanistan, and of course most importantly the disposition or dispatch, I might say, of American troops, and increasing American troops to Afghanistan to implement the strategy that, according to Admiral Mullen, the Chairman of the Joint Chiefs of Staff, was agreed upon last March.

I must say, without mentioning any classified information, the briefing that I attended yesterday with General Jones doesn't seem to corroborate that statement by Admiral Mullen. But the point is we need to hear from the architects and the commanders.

If the President does not want to talk to the commander in the field, General McChrystal very often--in fact, it was reported in a ``60 Minutes'' interview that he gave he said he had spoken to the President once in 70 days, although the President talks to labor leaders almost on a daily basis pushing his health care agenda--the fact is we as Members of Congress, a coequal branch of government, also have a responsibility in this decisionmaking process.

I respect the President's role as Commander in Chief. I respect the President of the United States making a decision. But I also cherish the role of the Senate and House of Representatives in being informed as to the views of our military commanders in whom we place the responsibility for the lives of our young men and women who are in harm's way.

All we are seeking with this amendment is a date certain, not immediately--the date for this requirement of testimony by General McChrystal, General Petreaus, General Stavridis and perhaps others if necessary--by November 15. That is a month and a half from now. Should not we hear a month and a half from now, within a month and a half, as to what we are considering? I hope the decision would be made clear.

Admiral Mullen, Chairman of the Joint Chiefs, in testimony said:

The President has given us a clear mission: disrupt,

dismantle and defeat al Qaida . . .

But the President, in March, said of the situation--the President of the United States said the situation there was ``increasingly perilous and that the future of this troubled nation is inextricably linked to the future of its neighbor Pakistan.'' He also called it a ``war of necessity,'' and declared ``America must no longer deny resources to Afghanistan.''

Obviously I agree with him. Time after time I have made my commitment of willingness and desire to work with him. But it is very difficult for members of the Armed Services Committee and Members of the Senate to work with him if we are not informed by the uniformed commanders in the field. Admiral Mullen, the Chairman of the Joint Chiefs of Staff, emphasized in testimony before the Senate Armed Services Committee, time is not on our side. There are already somewhere between 62,000 and 68,000 American troops in the field in danger. Tragically, casualties have gone up. We have a responsibility also. We have a responsibility to hear from our commanders in the field.

Let me point out, General McChrystal was on ``60 Minutes'' talking about what we needed to do in Afghanistan. General McChrystal gave a speech in London just yesterday talking about what we needed to do. So it is OK with the administration for General McChrystal to go on ``60 Minutes.'' It is OK for him to give a speech at the Institute for Strategic Studies in London. But the administration does not want General McChrystal and General Petreaus before the Senate Armed Services Committee. How does that work?

I hope my colleagues will vote for my amendment, which calls for the same, basically, testimony by the commander of the United States Central Command, commander of the United States European Command, and Supreme Allied Commander--Europe, Commander of the United States Forces--Afghanistan, and of course we would like to hear from the United States Ambassador to Afghanistan, Ambassador Eikenberry.

This is pretty clear. This is a very clear decision we have to make. We are asking that within a month and a half from now these individuals appear before the respective committees and testify as to what they believe the best strategy is to be employed in order to achieve victory. Why should not the Senate and the Congress and the people of the United States hear, directly in testimony before the Congress, what they believe is the best way to ensure victory in Afghanistan?

I understand the debate that is going on within the White House and the deliberations that the President is undertaking as he considers the most heavy responsibility that any President has, and that is to send our young men and women into harm's way. I have some sympathy. But I would point out there are already close to 68,000 young Americans there, and casualties are going up.

According to Admiral Mullen, according to every expert, the situation is deteriorating in Afghanistan, so this should not and must not be a leisurely exercise. Decisions have to be made and we--I speak for myself and I am sure all of my colleagues--we want to be part of that decisionmaking. We do not want to make that decision because that is the responsibility of the President of the United States, but it

is also the responsibility of the Congress of the United States to appropriate the money for it.

When a President lost the confidence of the American people and the Congress of the United States in a war long ago and far away, the Congress of the United States did cut off the funding for further assistance in Vietnam.

I hope the Senate will act in a positive fashion and act on what I think is a reasonable request, that within a month and a half we could have the testimony before the Senate Armed Services Committee.

I remind my colleagues, the chairman of the House Armed Services Committee, the distinguished Congressman Ike Skelton, and the ranking member of the House Armed Services Committee, also want this testimony to take place. The majority leader of the House of Representatives, Congressman Hoyer, has also called for testimony before the Congress of the United States. Why the administration should be reluctant to send these people before us so we can, in any way we can find possible, support the President of the United States as he makes these tough decisions--which we cannot do unless we are informed of the opinion of those we are sending to command and lead in battle--then it is difficult for us to show our support for the President in the form of appropriations bills and authorizations as to what is needed without hearing from the commanders in the field.

There will be discussion about General Petreaus's testimony before the Congress of the United States. I remind my colleagues the decision was made by the President on the surge very rapidly; that the decision was made and General Petraeus was called before what--appeared before the Senate Armed Services Committee to give the reasons for that. I think it is very important. It is very important that the man the President of the United States fired, the previous commander--let's be clear, fired the previous commander because he had confidence in General McChrystal--that we should also be allowed the ability to hear about his vision and his strategy that would bring about a successful conclusion of a long, tragic, hard involvement in Afghanistan.

I hope we can have the same luxury that the Institute for Strategic Studies in London received with General McChrystal giving a speech there and answering questions; that we would have the same courtesy that ``60 Minutes,'' the producers and commentators on ``60 Minutes'' just received. I hope the Senate would receive that same ability to directly question General McChrystal, General Petreaus, and others.

I yield the floor.

I ask unanimous consent to respond to my colleague on that issue.

I would say to my colleague, we are asking if there are any other speakers. We should know that in a few more minutes. Then we would agree to a time agreement.

Reserving the right to object, and I will not object, I ask the distinguished chairman, does that mean 30 minutes from now, equally divided, or the time that has already been consumed?

From now. I do not object.

Mr. President, I would like to point out what Admiral Mullen at the Joint Chiefs of Staff said: Time is not on our side. We cannot afford to leisurely address this issue. I believe the Congress needs to be involved. The Commander in Chief is the Commander in Chief. But the Congress has a role to play because only the Congress can provide needed funding and develop other policies as regards the responsibility we all have when our government decides to send young Americans into harm's way.

I have watched a lot of decisions being made in my time. I have agreed with some and disagreed with others. One of the earliest decisions I was involved in was many years ago when Ronald Reagan decided to send marines to Beirut. At the time, I thought the mission was not sufficiently resourced and I thought it would unnecessarily put young marines in harm's way. I objected; I spoke against it. Unfortunately, I was correct.

History does have a tendency to repeat itself. The fact is, unless this effort in Afghanistan is properly resourced, as recommended by General McChrystal, as recommended by Admiral Mullen and supported by history, we are doomed to failure. To think that a month and a half would elapse before that decision was made, because the strategy was decided on last March, and then to go through a bizarre sequence of events--I have never seen anything like it. First, General McChrystal was told not to send his troop request to Washington while these discussions were going on. After that was revealed to be the farce it was, now the Secretary of Defense is not going to forward the troop request to the White House as they make decisions on the number of troops needed. How does that work?

Let's get this straight. The Secretary of Defense has said he is not sending over the number of troops requested by General McChrystal, which is known to everyone as 30,000 to 40,000 troops. Apparently, it will be known to everyone except the President, who is supposed to make the decision. We have legitimate questions about a process such as that to start with. No Commander in Chief can make a decision about how to conduct a conflict unless that Commander in Chief knows what resources

are required. Without having the recommendation for the number of troops being transmitted to the Commander in Chief, there is no way a rational decision can be made.

What is going on here is pretty obvious. It is very obvious what is going on. The Chairman of the Joint Chiefs, General Petraeus, General McChrystal--all know we need additional troops in the range of 30,000 to 40,000, and the administration is backing off of that or trying to find the exit sign. It is well known. It had been broadcast all over television that there are individuals--including the Vice President, now, unfortunately, the National Security Adviser, the chief political adviser to the President, Mr. Rahm Emanuel--who don't want to alienate the left base of the Democratic Party. That is what this is all about.

The American people need to know what our military commanders, in their best judgment, think we need to defend this Nation. They need to know it within the next month and a half. Do I need to remind my colleagues we have 68,000 Americans there now? Just a few days ago, five brave young Americans died in 1 day. Admiral Mullen said in his testimony before the Armed Services Committee that the clock is ticking. We are running out of time. This is an urgent situation. This is not a decision as to whether to send troops into harm's way. Troops are already in harm's way. They are already there, and they are getting wounded and killed while, according to the President's National Security Adviser, we are considering all options. Shouldn't we consider seriously the option of the recommendations of military commanders? I am not saying they have the final say; I am saying they should be given great weight.

Here we are asking for testimony from those people who, again--the President fired the commander in the field to replace him with General McChrystal, and yet we are not transmitting the fundamental and most difficult aspect of General McChrystal's recommendations as to how to implement a strategy that was agreed on last March.

I fear that domestic political considerations are impacting a decision which has to do with the future security of the United States. Just recently, the former President of Pakistan, President Musharraf, said that American delay is being interpreted as a sign of weakness by countries in the region. We left Afghanistan once. We helped the brave Afghans drive out the Russians who were then trying to make Afghanistan part of the Soviet Union. We drove them out and we left. What happened? The Taliban took control. Al-Qaida cooperated with them, and the attacks on the United States of 9/11 took place by people who were trained in Afghanistan.

Let's have no doubt what is at stake. The American people and their representatives at least need to hear within the next month and a half, 45 days, as to what the recommendations and strategy of our military leaders are. I emphasize, they are not the last word. The Commander in Chief has the last word. But the Commander in Chief, whatever decision he makes, also has to come to Congress for the necessary assets and authorization to do whatever his strategy is. So we do play a significant role. The American people and their elected representatives, as the chairman of the House Armed Services has said, as the majority leader of the House of Representatives has said, need to hear from these military leaders.

I reserve the remainder of my time.

Mr. President, again, unfortunately, a lot of the information we have to get is through the media rather than testimony before the Senate Armed Services Committee. I do think it is worthy of note that there is a story dated October 1, 2009, which says:

The top military commander in Afghanistan, Gen. Stanley A.

McChrystal, rejected calls for scaling down military

objectives

there on Thursday and said Washington did not have unlimited

time to settle on a new strategy to pursue the eight-year-old

war.

. . . General McChrystal said that the situation in

Afghanistan was serious and that ``neither success nor

failure can be taken for granted.'' . . .

General McChrystal was asked by a member of an audience

that included retired military commanders and security

specialists whether he would support an idea put forward by

Mr. Biden to scale back the American military presence in

Afghanistan to focus on tracking down the leaders of Al

Qaeda, in place of the current broader effort now under way

to defeat the Taliban.

``The short answer is: no,'' he said. ``You have to

navigate from where you are, not where you wish to be. A

strategy that does not leave Afghanistan in a stable position

is probably a short-sighted strategy.''

He did not mention Mr. Biden by name.

All of us here have great affection and appreciation for the Vice President. We have all gotten to know him and like him over the years. But the fact is, the Vice President of the United States, in the first gulf war, after Saddam Hussein had invaded Kuwait, voted against the resolution, saying it would be another Vietnam war. He has voted consistently against U.S. involvement. And the latest, of course, was when his idea was to divide Iraq into three different countries. So the Vice President does have a clear record of being consistently wrong. I hope that is taken into consideration when he comes up with his ideas about Afghanistan.

General McChrystal has been reported to be seeking as many

as 40,000 additional American troops for the war, a number

that has generated concern among other top American

commanders.

But that number--which is known to everyone, and keeps being reported--that number is not going to be transmitted to the President by the Secretary of Defense. You can't make that up. Everybody knows it, but it is not going to be sent to the President by the Secretary of Defense.

Anyway:

In a confidential assessment of the war last month now

under consideration by the Obama administration, General

McChrystal said that he needs additional troops within the

next year or else the conflict ``will likely result in

failure.''

Mr. President, we have a limited amount of time, but I do not have to tell most people and colleagues here what the consequences of failure in Afghanistan might be. So what we are asking is, sometime within the next month and a half--the next month and a half--that we get General McChrystal in particular but also the most brilliant general I have ever encountered in my life, General Petraeus, and others, to testify before the Senate Armed Services Committee. Maybe the House Armed Services Committee, whose chairman said they needed that testimony, will proceed without us. I would feel very badly if the U.S. Senate were not given the same opportunity to have General McChrystal and General Petraeus appear before them, as the House Armed Services Committee chairman has said they want.

I want to emphasize to my colleagues, we are asking, sometime within the next 45 days, an appearance by the leaders we have put in charge of the lives of our young American men and women. We are just asking for them to come and testify before our committees of jurisdiction, to exercise our responsibilities as representatives of our States. That is all we are asking. That is all we are asking.

There are already 68,000 there. They are being wounded and killed as we speak. And as the Chairman of the Joint Chiefs of Staff has said: Time is not on our side. The situation is deteriorating.

Shouldn't the Senate Armed Services Committee and, through us, the American people and the Senate Appropriations Committee, which has its responsibilities, also hear from these great leaders who are in charge of the lives and safety and well-being of our men and women in uniform and are charged with achieving victory and not defeat, achieving success and not failure in Afghanistan?

Mr. President, I reserve the remainder of my time.

Mr. President, how much time is remaining on both sides?

Well, Mr. President, let me say, if I could--I will use my remaining 2 minutes--I appreciate very much the relationship I have developed over more than 20 years with the chairman of the committee. From time to time, we have had differences and vigorous debate. I want to emphasis, I respect the opinions and views and authority of the chairman of the committee. We just simply have an open and honest disagreement.

I hope my colleagues will understand the urgency of this situation and agree to my amendment that does not in any way diminish my respect and appreciation of the way the Senator from Michigan chairs the committee and acts on a bipartisan basis, which is a long tradition of the Armed Services Committee. I urge my colleagues to vote in favor of my amendment.

Mr. President, I yield the remainder of my time.

Mr. President, I ask unanimous consent that the Senator be given 3 additional minutes.

I hope everybody had a chance to read the wording of this amendment that says ``appropriate committees of Congress shall hold hearings,'' et cetera, ``promptly after the decision by the President on those matters is announced.'' In other words, we don't have any input into the decisionmaking process. We don't get to hear from the Secretary of Defense on down while the decision is being made by the President as a coequal branch of government. This is bizarre. I have never seen a requirement that we can't call witnesses and won't call witnesses on an issue about sending young Americans into harm's way. This is a remarkable statement that we are not going to be in on the takeoff and so therefore we will not be in on the landing. We aren't going to have a hearing on one of the most pressing and incredible emergencies of our time? We aren't going to have any witnesses before the appropriate committees until after the decision is made? I am not ready to abrogate those responsibilities that I have to the citizens of Arizona who are in harm's way. I urgently ask colleagues to vote against this bizarre amendment.

Mr. President, this amendment says within 45 days that we should have testimony from our military leaders, whom we have given the responsibility for combat operations in Afghanistan.

We have just abrogated the Senate's obligations and constitutional authority for advice and consent, because now, thanks to the passage of the Levin amendment, we will not have testimony from those commanders in the field. I take special exception to it, and so should most people who have their young citizens over there in harm's way today fighting and dying.

What we are going to do is say we cannot have any hearing as regards to strategy concerning how we are going to succeed in Afghanistan. So we are not in on the takeoff, and a lot of us may have trouble being in on the landing. This is an issue regarding which the Senate should have a role--at least of being informed.

I guess maybe we will be restricted to interviews with General McChrystal on ``60 Minutes.'' I urge my colleagues to vote in favor of the amendment.

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

I find it entertaining when our constituents ask: Have you read the bill? Of course we haven't been able to because there is no bill. If I could just quote what happened here. This says:

The Chairman's Mark will provide additional assistance that

would be made available to high-needs states which are

defined as states that (1) have total Medicaid enrollment

that is below the national average for Medicaid enrollment as

a percentage of state population as of the date of enactment

. . .

It goes on and on for a few more sentences. What does it mean? It means they got a special deal for four States, one of them being the State of Nevada. Who pays? Who pays? The other States. So we have a complaint by the distinguished majority leader that his State of Nevada would have to pay an amount that they don't appreciate, so we shifted it so that three other States--I am sure my friend from Tennessee knows which ones. I believe one of them is Oregon. I am not sure what the other three are.

So our constituents who don't happen to live in those fortunate four are now going to pay additional funds because we put in the chairman's mark. Everybody wonders why people are so mad. They wonder why is it that there are these tea parties, why is it that there are people marching on Washington, what are they mad about? I hear the pundits and those who very seldom go outside the beltway or outside Manhattan say they are a bunch of crazies. It is this kind of thing. It is this kind of thing. We are going to do a legislative appropriations bill here that has $500,000 in it so that Senators can send out postcards to announce townhall meetings. Has anybody had any trouble getting people to townhall meetings? We need to spend $500,000 additional to notify people?

Getting back to the point of the Senator from Tennessee, this is what is wrong. This is what is wrong with the way we do business. We cut special favors for special States, not based on need or requirements but on the influence of the individual Senator or Member of Congress. That is what they are mad about.

May I mention one other thing to my friend from Tennessee. Yesterday, there was a big vote in the Finance Committee that dominated the headlines. The so-called public option was voted down by a significant margin. And we hear rumors that finally the administration will come up with a proposal. Doesn't that mean the goal will be basically to get any bill through both the House and Senate and then go into conference behind closed doors and rewrite the bill? That is my greatest fear.