Floor Statements

The following Senator is necessarily absent: the Senator from Alaska (Ms. Murkowski).

Madam President, I had hoped we could begin consideration of the annual National Defense Authorization Act, NDAA, today but, hopefully, we will consider it as our first business when we reconvene after the election.

I filed three amendments that deserve serious consideration by the Senate, two of them dealing with the New START treaty. It is important to deal with these amendments before consideration of the treaty.

Amendments Nos. 4636 and 4638 deal with modernization of the U.S. nuclear deterrent, which is directly related to the reductions called for by the treaty; and, the Bilateral Consultative Commission, of which much has been written concerning the implications for the Senate's prerogatives in the treaty making function. Amendment No. 4637 deals with a matter of great concern, China's reckless disregard for the international nonproliferation regime. I will ask that the article, ``NSG Makes Little Headway at Meeting'' from the Arms Control Association Web site be printed in the Record.

Regarding amendments Nos. 4636 and 4638, I will first briefly discuss amendment No. 4636 concerning START and modernization of the U.S. nuclear deterrent. In section 1251 of the fiscal year 2010 National Defense Authorization Act, the administration was required to provide a comprehensive plan for the nuclear weapons stockpile, nuclear weapons complex and delivery platforms. The report--hereinafter the 1251 Plan-- was delivered to the Senate with the new START treaty on May 13, 2010.

While the 1251 Plan identified certain administration proposals to maintain and modernize our nuclear deterrent, it became quickly apparent that the plan, prepared on a tight schedule, did not provide a fully detailed picture of what is needed to modernize the U.S. nuclear deterrent and how much it will cost. Of course, additional decisions and revised budget estimates will continue to be made over the next decade of the 1251 Plan's scope. That is why the 1251 Plan and the corresponding budget will require regular updating--a point often repeated by the Directors of the national nuclear weapons laboratories.

As Dr. George Miller, Director of Lawrence Livermore National Laboratory, testified:

It is important to note that the nature of NNSA's work

requires program flexibility because technical issues arise

in the stockpile and requirements evolve. The scope of work

and budgets will need to be correspondingly adjusted. Annual

updates . . . could provide a mechanism to outline the

program's funding requirements and projections.

My amendment No. 4636 codifies that recommendation and resolves the issues of evolving requirements and costs by requiring the President to provide a detailed update to the 1251 Plan report annually, for the duration of the new START treaty, describing revisions or adjustments to the plan as well as progress on satisfying the requirements of section 1251. Reductions in the nuclear force posture are tied to the submission of that update. As the Secretary of Defense has stated, there are 7 years to implement the treaty reductions; thus, a 1-year notice-and-wait requirement should not cause any difficulty.

Additionally, the unbiased input of the directors of the NNSA laboratories and facilities will accompany the report as validation that adequate resources are being provided by the administration in support of sustainment and modernization activities. This is quite similar to the annual stockpile assessments as those familiar with that process will recognize.

This amendment fosters improved project management, a detailed commitment to sustaining the U.S. nuclear deterrent, and reflects strong bi-partisan support for nuclear weapon complex modernization.

I appreciate the broad support expressed for modernization. As Secretary Gates stated in his October 2008 Carnegie Endowment speech:

[t]o be blunt, there is absolutely no way we can maintain a

credible deterrent and reduce the number of weapons in our

stockpile without either resorting to testing our stockpile

or pursuing a modernization program.

Concerning amendment No. 4638, the purpose is equally clear: to maintain the role of the Senate in treaty making. The Bilateral Consultative Commission authority is very broad. As Jack Goldsmith and Jeremy Rabkin observed in an August 4 Washington Post op-ed piece, ``New START Treaty could erode Senate's foreign policy role'':

This treaty . . . does, however, create a Bilateral

Consultative Commission with power to approve `additional

measures as may be necessary to improve the viability and

effectiveness of the treaty.' The U.S. and Russian executive

branches can implement these measures and thus amend U.S.

treaty obligations--without returning to the U.S. Senate or

the Russian Duma.

The time to deal with this concern is now. The Lugar Resolution of Ratification approved by the Senate Foreign Relations Committee makes a genuine effort to address concerns; I hope to work with the ranking member to further improve his Resolution. But more can and should be done in binding legislative language, such as my amendment. These provisions are essential if we are interested in protecting the Senate's constitutional role and our missile defense and conventional prompt global strike capabilities.

As Messrs. Goldsmith and Rabkin observed:

If the administration does have a problem with them, the

Senate should worry--about the commission's power to limit

missile defense, the executive's attempt to limit the

Senate's constitutional role in the treaty process, or both.

I am pleased to have the support of Senator Sessions, the ranking member on the Senate Judiciary Committee and a senior member of the Senate Armed Services Committee, who has cosponsored this amendment. I ask unanimous consent that the Goldsmith-Rabkin article be printed in the Record in addition to the article from the Arms Control Association.

Mr. President, I would like to speak a bit about the two competing philosophies of economic growth. The first version I will discuss is the so-called Keynesian economics, which has been the basis of the Obama administration's economic policy since January 2009 and, I would add, with little to no success in reviving our economy and reducing unemployment.

Keynesian economics relies on the theory that in recessionary times, increased government spending can take the place of private sector activity, hence the administration's nearly $1 trillion stimulus package, the Cash for Clunkers Program and a litany of other government programs, transfer payments, and temporary tax credits. This administration's insistence on enacting these temporary Keynesian policies to stimulate consumption is misguided and has ultimately failed.

As the Wall Street Journal editorialized in a piece called ``The Obama Economy:''

Never before has government spent so much and intervened so

directly in credit allocation to spur growth, yet the results

have been mediocre at best. In return for adding nearly $3

trillion in Federal debt in 2 years, we still have 14.9

million people unemployed. What happened?

Well, I will mention three problems with Keynesian economics that I think help to answer that question. First of all, someone without a job is not going to be fooled into spending more money because of a one- time payment that he or she received from the Federal Government. People only change their spending habits when they know they will have a greater consistent income

over time, such as when they receive a raise at work. In fact, the evidence has shown that people either save one-time rebates or shift future consumption forward but do not permanently increase their work effort or incentive to invest, which is what is needed to jump-start economic growth.

Second, Keynesian economics assumes the government has the foresight to determine in advance which spending programs would best create economic growth. Well, the obvious problem with this assumption is, Congress does not spend taxpayers' money wisely. We see time and time again how straightforward pieces of legislation get loaded up with special projects which are costly and of questionable value to the public. This has been one of the problems with the stimulus package.

Third, if the problem is lack of consumption and Americans are too broke to spend, how can the government spend for us? We are the government. It is our tax money that is being spent. We have to pay it back if it is borrowed.

The authors of a textbook entitled ``Economics: Public and Private Choice,'' write:

There are no free lunches. Regardless how they are

financed, activities undertaken by the government will be

costly. When governments purchase resources and other goods

and services to provide rockets, education, highways, health

care, and other goods, the resources used by the government

will be unavailable to produce goods and services in the

private sector. As a result, private-sector output will be

lower.

In short, there is a major misconception that consumption fueled by government spending actually creates economic growth. It doesn't. It just moves money around. Taking it from the private sector to be spent by the government removes critical capital that is needed to create jobs.

I noticed, in catching up on reading some of the newspapers over the weekend, that Treasury Secretary Geithner weighed into this debate a little bit. Recall that over the last several weeks there has been a debate about whether we should prevent all taxes from going up or simply prevent a tax increase on the so-called middle class. The idea is that middle-class families spend whatever money they have available. That plays into this Keynesian economic notion that it advances spending so we should let them keep more of their money but that wealthier people--the people in the top two brackets--don't spend their money and, therefore, they do not contribute to economic growth. But of course it totally misses the point that money saved is money ultimately invested. If it is invested, it is either put in a bank, which can then lend more money to people who need to borrow or it is directly invested in stocks or bonds or some other enterprise which generally results in the acquisition of more equipment or the hiring of more people, both of which are essential to reducing unemployment and getting the economy back moving again.

Well, Treasury Secretary Geithner was testifying before the Congress about the possibility of imposing penalties on China because of its currency policies. According to an article in Friday's Washington Times--on the front page:

While taking his toughest stance to date on China's need to

speed up the pace of currency reform, Treasury Secretary

Timothy F. Geithner echoed China's point that doing that by

itself will not eliminate the gigantic $230 billion trade

deficit with China or restore millions of manufacturing jobs

lost in the recession.

Continuing to quote from the article:

``Americans also must save more and invest more while

consuming less of the world's bounty,'' he said, ``to bring a

better balance to trade.''

He is right. America does need to save more and invest more. That is the way you restore not just the manufacturing jobs lost in the recession but a lot of the other jobs as well.

Reporting on the same story in another newspaper, Secretary Geithner is quoted as saying:

We are concerned . . . that the pace of appreciation has

been too slow. The most important things we can do to make

manufacturing stronger in the United States are going to be

about the policies we pursue in the United States.

I think he is right and that the policies we have to pursue are the policies of savings and investment--exactly what he said. It may be fine for the U.S. economy to spend more money, but the reality is, each of our families and our businesses are better off if we save and invest at this important time in our history.

So let there be no mistake; the Secretary's promotion of savings and investment is contrary to this Keynesian notion that all we have to do is spend more money and the economy will get better. There is a need to save and a need to invest. That is what enables businesses to create more jobs.

I think it is very important to remind everyone that economic growth stems from combining three separate inputs--labor, capital, and technology. These three factors of production result in output that we can then consume. Without labor, without capital--that is the savings and investment part--and technology, which enhances our productivity, there can be no consumption. Focusing on policies that stimulate consumption targets the wrong side of the equation.

In order to get the economy going, we need to focus on the inputs, and that is where the second philosophy of economic growth comes in. Some people refer to it as supply-side economics. The fundamental principle of supply-side economics is that people work harder and take more risks when there are more opportunities for economic gain and less government intrusion.

Translating this economic philosophy into policy means reducing government consumption by cutting spending; thus, leaving resources in the private sector. It also means not raising taxes on anyone, especially in these difficult economic times--certainly not on the very employers that we count on to hire more workers. Who employs 25 percent of our workplace? Small businesses. Who would bear the brunt of tax increases in the upper two brackets? Small businesses. So the last thing we should be doing is raising taxes on anyone, most especially our small businesses to which we are looking to produce more jobs.

There is plenty of evidence that the economic theory I am talking about works in practice. We have abundant evidence of what works and what does not. A recent study was conducted by Harvard economists Alberto Alesina and Silvia Ardagna, who recently studied more than 100 fiscal adjustments in 21 separate countries over the past 40 years. The countries are all in the OECD. These are the more economically advanced countries of the world.

The fiscal adjustments that led to economic expansions were generally based around spending cuts. By contrast, the adjustments that led to economic recessions were based around tax increases. Thus, spending cuts, not tax hikes, appear to be the more effective strategy for deficit reduction.

Using data from more than 90 different OECD countries, Alesina and Ardagna also compared the relative benefits of spending increases and tax cuts. Their conclusion: Tax cuts are a much better way to spur economic growth.

Unfortunately, the current administration and Congress have done the exact opposite of what these two economists from Harvard have proposed. They have dramatically increased Federal spending and are now threatening to implement a massive tax hike, exactly the wrong prescription. I believe it is long past time for Congress to consider an alternative strategy, a strategy that rejects misguided income tax increases and, instead, focuses on targeted spending reductions; a strategy that lowers our corporate tax rate, which is the second highest of all of the OECD countries; a strategy that blocks unelected Federal bureaucrats from imposing new energy taxes on small businesses and middle-class households; a strategy that restructures our three biggest entitlement programs--Social Security, Medicare, and Medicaid-- to prevent a future fiscal crisis; a strategy that reins in overall health care costs through market-oriented, consumer-driven reforms; a strategy that promotes free trade across the globe and strengthens our bilateral relationships in the process; a strategy that embraces clear, transparent fiscal regulations to end taxpayer bailouts and discourage excessive leveraging.

These are just some of the recommendations that come from the Republican side of the aisle. I note that they track very closely a piece that

four economists and George Shultz, a former Cabinet member--in fact, two different Secretaries in the Cabinet of the President of the United States--George Shultz, Michael Boskin, John Cogan, Allan Meltzer, and John Taylor. They wrote a piece in the September 16 Wall Street Journal called ``Principles for Economic Revival.'' These principles track very closely the principles I have just identified and provide what I think is a very good blueprint for moving forward.

Just a final note. I would note parochially that starting in the third paragraph of their piece: ``The Noble Prize-winning economist Edward Prescott'' is from Arizona State University. I visited with Dr. Prescott, and I can affirm the things he teaches in his classes as well as what he teaches by his writings are the principles upon which we can build economic growth. They are what I said in the very beginning of my remarks. They are the principles of incentive for more economic output and reward.

He talks, in this piece, about the way higher tax rates on labor are associated with the reductions in the labor output, and therefore the productivity of the country, the wages of the people, and the economic condition of the country.

Also, the authors have a very interesting chart in this Wall Street Journal piece called ``The Cost of Washington.'' It is astonishing to see on paper the cost of World War I--in fact, the cost of the Civil War before that, the cost of World War II--pretty high. Then it went back down again. These are all costs as a percent of GDP.

Now when we have the biggest gross domestic product ever, dramatically larger even than what we had in World War II, we have costs of the Federal Government that exceed even the cost as a percentage of GDP of World War II.

The President's folks, as well as those who advise Congress, have all said this is unsustainable. It is one of the reasons it is time for us, as I said, to get back to principles for economic revival and focus on reducing unnecessary spending and making certain that, especially in these times, we resist the notion of raising taxes on any Americans.

I ask unanimous consent this Wall Street Journal op-ed be printed in the Record.

I suggest the absence of a quorum.

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

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

The following Senator is necessarily absent: the Senator from Alabama (Mr. Sessions).

The following Senator is necessarily absent: the Senator from Louisiana (Mr. Vitter).

The following Senator is necessarily absent: the Senator from Louisiana (Mr. Vitter).

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

Mr. President, I would like to speak to the bill pending before us briefly, first to respond to a criticism that Republicans had been filibustering this bill, and, therefore, that somehow revealed an antagonism on the part of Republicans toward small business.

The charge is so ludicrous that one would think it does not even need to be responded to. Republicans have been the champions of small business in this debate about taxes. I will have more to say about that in a moment.

Why was it that the majority of Republicans did not want to proceed with the proposal that the majority leader put before the Senate? A very simple reason. The majority leader, once again, precluded Republicans from offering any amendments. The entire history of the Senate is a history of tradition and comity and the opportunity for the minority to be able to offer amendments and debate.

When repeatedly the majority leader does what they call, in the Senate parlance, filling the parliamentary tree, which means he precludes the minority from offering any amendments, naturally Republicans are going to object to that.

We said repeatedly we would be delighted to debate this bill, just let us offer some amendments. No, was the answer; you cannot do that. Well, we are on the bill now, and I think it is pretty clear that what this debate boils down to is what is the best way to help the small businesses who are the job creators. In fact, about one-quarter of all of the jobs in this country are created by small business, and what we know is that especially the small business folks are the first ones to hire in bad economic times, hoping to bring the economy out of a recession.

Why are they not hiring today? Well, on Monday I came to the floor and I pointed out one of the reasons. One of the entrepreneurs in our country wrote an op-ed in the Wall Street Journal in which he totaled up all of the expenses that he has every time he hires someone. I believe, if memory serves me correctly, it cost him about $78,000 every time he hired somebody who had a $44,000 salary. That is in the extra taxes that he would have to pay and the cost of regulations just to comply with Federal law for hiring one additional person. It is no wonder that small businesses do not hire at this point.

So what is the Democratic response? Let's raise their taxes. Let's make it even more difficult for small businesses to hire people. We believe that is the wrong solution, and rather than looking at the kind of bill that is on the Senate floor today that creates yet another kind of TARP bank lending authority, something the American people are a little bit fed up with, we believe we should leave tax rates where they are so that businesses have some certainty that they are not going to be raised. At least do not make it worse.

I noted that the distinguished assistant majority leader earlier this morning inadvertently confused tax cuts with tax increases. I have done the same thing many times. But the reason I wanted to point that out is because I think there has been so much talk on the Democratic side about tax cuts for the rich that the Members on the other side have almost gotten to believe that. The truth is, nobody is proposing

tax cuts for the rich. Nobody is proposing tax cuts for anyone.

My colleague from Illinois corrected himself and said: No, I mean tax increases. That, of course, is what the question is. Should there be tax increases on anyone? The Republican position is no. At least in times of recession or bad economic times, do not raise taxes on anyone. Do not raise taxes on families who are struggling to make ends meet, and do not raise taxes on businesses, especially the small businesses that are the best job creators.

So our view is, do not raise taxes. But the Democratic view is, well, let's raise taxes on some but not on others. That is this class warfare concept that I was critical of Monday. In America we do not believe in class warfare. We think everyone ought to have a chance to succeed, and if someone succeeds, we applaud it and we hope we are in the position the next week or the next year. But, instead, there seems to be a view that, well, rich people can afford it, so let's raise their taxes.

Again, economists generally--including Peter Orszag, the immediate past Director of OMB under President Obama--have made it clear that raising taxes on anyone, including the entrepreneurs, those people who pay in the higher tax brackets, is a bad thing for job creation especially in bad economic times.

So why would we do it? Well, the concern is we have to be worrying about the deficit. Well, this is a fine time to be worrying about the deficit and a fine way to do it. We spend $1 trillion on a new health care bill, we spend $1 trillion on a stimulus bill, we spend all of this other money bailing out this and that in our economy, and now another new TARP lending program spending trillions of dollars, a budget that doubles the national debt in just 5 years, doubles all of the debt accumulated from George Washington through George Bush, we are going to double that in 5 years under the Obama budget.

I would suggest that we ought to start worrying about the spending. If we are worried about the deficit, let's stop the spending spree. Let's do not try to make up a little bit of that by deciding to tax a bunch of people who are the very folks who are going to hire the employees that are going to help bring us out of the recession.

Am I just sort of fancifying this or do real small businesspeople have this view? Well, let me just read about--I think there are three, maybe four folks here. These are some of the folks, some of the 750,000 small business owners in the United States whom we are counting on to create jobs and who would see an increase in their marginal income tax rate under the Democratic proposals.

I just want to quote from what a few of these folks say. Here is the chief operating officer of a company called Logical Advantage in North Carolina. His name is John Fread. He says marginal tax rates will mean his company will not be able to hire the new sales representative it needs, and it may force layoffs. He says:

We founded Logical Advantage in 2003 with a couple of card

tables and laptops and a staff of three. We've been

successful and have since expanded our business. One of the

keys to our growth has been our determination to reinvest our

profits in our firm. We're organized as a pass-through

business, (meaning the company's taxes are paid at the

individual income tax rate),--

That is why this marginal rate is so important--

and if our marginal income tax rates go up, we'll be left

with less money to put back into our company. This would mean

we would not be able to hire an additional sales

representative.

Then he also closes with this:

Also, since our employees bill their services hourly, we

use profits to keep our employees employed between projects

and avoid layoffs. Without this additional cash, we'll have

no choice but to do layoffs. My advice to Congress would be

to keep the current tax rates in place and do all they can to

avoid raising our taxes because that will lead to fewer jobs.

So here is an entrepreneur, a small business owner, who says he wants to create jobs, save the jobs he has. He wants to expand, but an increased tax burden will prevent him from doing so. No, we are not talking about tax cuts for the rich. Nobody is talking about tax cuts. We are talking about keeping his taxes from going up. That is what we want to prevent.

Kevin Linehan of Bravadas Fairfax, LLC, a small clothing and accessories business, says--and I hope I am pronouncing that correct-- Bravadas is the way I see it here. Anyway, he says the shaky economy has forced him to cut his staff and payroll by 40 percent and slice his inventory by 30 percent, not an uncommon situation in this economic downturn. He wants Congress to know that if the top two marginal rates increase, he will not be able to hire the new employees he needs, increase his inventory, or take the risks that would lead to innovation in his business. I am going to quote him.

If Congress goes through with the plan to increase the

marginal income tax rates for the top two brackets, my

business will be hurt. We've already been battered by the

recession and had to cut staff and payroll by 40 percent. I

have also cut both my advertising and inventory by 30 percent

each, and have had to downsize and change locations to save

on rent.

If Congress raises my taxes, it will be more of the same

rather than being able to grow my business, attract new

customers and hire new staff. In fact, in this economy I have

had to cut back on essentially all new business activity,

meaning I've stopped trying to innovate and instead have been

forced to focus on only those activities that are the most

profitable because I cannot afford to take risks. The more

and more the government takes, the more difficult it is for

small businesses like mine to be successful and do the things

they want us to do, which is to create jobs.

Here is a third small businessperson, Ray Pinard. He owns a printing business in Boston. He says if tax rates go up, he would not have the resources to expand his business operation to new areas, and, therefore, to create new jobs. Here is what he wants Members of Congress to know:

Keeping the tax burden low is so critical to our business,

48HourPrint.Com. . . . With the economy where it is, now

certainly isn't the time to play games by extending tax

relief for some but not others.

For example, if Congress fails to keep all of the current

income tax rates in place and we take a hit, then that will

mean we have left capital to grow our team and our

operations, not only in the Boston area but at our other

facilities in Ohio, Arizona, and New Hampshire, as well.

There are thousands of other small businesses out there that

will react similarly if their tax burdens increase. I am

worried that it will take much longer to get our economic

ship righted if our elected officeholders in Congress fail to

show leadership on this issue. [Raising taxes] is a job

killer. Leave the money in the private sector where it will

be put to good use.

Despite what the President says, these tax increases will have a very negative impact on job creation, especially for the small businesses, the entrepreneurs I have quoted. These are the people who are on the ground, running businesses, trying to weather the bad economy, hoping to hire new workers. They are telling us that their businesses cannot tolerate new taxes.

As this debate continues, I will share more stories from small businesses and other folks who are opposed to the tax increases.

It is critical that we appreciate the fact that even the talk about this, even the potential for an increase in taxes, has created a kind of uncertainty that has caused businesses to lock up and not want to make any kind of big decisions because of what they think could happen. I remind my colleagues that this money is not the government's money. It doesn't belong to the Congress or the President. When we talk about taxing people, we are talking about taking their money. It is not the government's money. It is their money.

The question is, Will the government do more good spending it or will the private sector, the people who have that money, who earned that money? Will they do more good with it? I think it is obvious that these small business folks I have talked about will put that money to good use for their families and their employees. They will create more jobs with it. That will help more folks.

The irony is that will eventually help the economy and will even help the U.S. Treasury, because we have more people paying more taxes at the existing rates, and that means more revenue for the Federal Government.

This is a very aspirational country. Almost everybody here looks at opportunity. We all think we can do better. If we work hard, we have a system that will reward hard work. These successful small business folks never cease to amaze me. They come up with an idea, a service, or a product to sell. They go through all the difficulties of doing so,

sometimes mortgaging their home, borrowing money. They are the lifeblood of the economy. They are not some bunch of fat cats. They are the people who make the economy work.

It bothers me when folks on the other side of the aisle denigrate them as if they are somehow evil people because they end up making enough money to pay taxes in the top tax brackets when, as we pointed out, the reason for that is that as business people who are not corporations, they are subchapter S or other partnership or small business legal entities, they pay taxes as individuals. And because of the income of their businesses, therefore, they are put in the top bracket and somehow, therefore, they deserve to be punished--they can afford it; they are the rich.

They are not the rich. They are folks like all of us, struggling to make ends meet, who will hire more people and who don't deserve to be punished for their success. We are supposed to be creating incentives for people to do exactly this. Ironically, the bill we are debating now is a bill that is supposed to help small business folks. We will give these TARP-like funds to the banks and make them lend a certain amount of it to small businesses, and everybody will be better. My guess is, if we let the small businesses keep their money and not raise their taxes, they would be perfectly happy and be able to get along, and they would have the ability to borrow money from the banks without the effect of the legislation before us.

I hope we both begin to change our rhetoric, not to attack those people who are the backbone of the economy, people who cannot afford another tax increase, who want to help the economy recover and like to hire more people, and that we would also recognize the most productive way to help them is to simply not raise their taxes. We are not talking about a tax break. I would argue that this TARP-like lending thing is an idea that may be well motivated, but it is not the way to help most of the businesses we are talking about. Just don't raise their taxes.

I will return to where I started. Some of us get a little confused. Sometimes we say tax cut when we are talking about tax increases. It may be that we have gotten so used to this rhetoric that somehow somebody is asking for a tax cut for the rich when, in fact, I don't know of anybody who is asking for a tax cut for the rich. Not a single Republican is asking for a tax cut for the rich. All we are asking is don't raise taxes on anybody; it is usually not a good idea, and it is certainly not a good idea in this time of economic downturn.

I hope as time goes on, I will have the opportunity to reflect on what more small business folks have written to us, and we will take their pleas to heart. The three people I have talked about today all say: Don't raise my taxes. I am having a hard enough time as it is. If you leave me alone, I might be able to begin hiring more people.

Let's take those stories to heart and listen to our constituents and not take the attitude that Washington knows best. It reminds me a little of what the President and one of our colleagues said in a townhall meeting in August when somebody asked about the health care bill. One of our colleagues said: Well, you may not like it now but over time I think you will get to appreciate it.

It is the attitude that we know best here; we will make the decisions; you may not like them now, but you will come to think they are okay over time. I think Americans have understood what it takes to make a successful business. They understand what taxation is all about. They understand this isn't the time to raise taxes on anybody, and we ought to get away from this idea that Washington knows best. Let's listen to our constituents. Let's listen to what they are telling us. Don't raise our taxes.

I suggest the absence of a quorum.

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

I ask unanimous consent that the Senate stand in recess under the previous order, which means that we would return at 3:30.

The following Senators are necessarily absent: The Senator from Alaska (Ms. Murkowski) and the Senator from New Hampshire (Mr. Gregg).

The following Senators are necessarily absent: the Senator from Alaska (Ms. Murkowski) and the Senator from New Hampshire (Mr. Gregg).

The following Senators are necessarily absent: the Senator from Alaska (Ms. Murkowski) and the Senator from New Hampshire (Mr. Gregg).

Mr. President, I wish to also talk a bit today about why Republicans oppose raising taxes on anyone. President Obama and his supporters have repeatedly argued that tax increases will only affect a few of the wealthiest Americans, ``millionaires,'' the President claims, and people ``who can afford it,'' to use his words.

First of all, I do not think the President should be pitting Americans against each other. Class warfare has no place in our debates. Americans agree with President Kennedy's formulation that a rising tide lifts all boats. Americans believe--it is our basic idea of a country--that we want everyone here to succeed, to do well, and not to pit one group of us against another group.

We all aspire to be in the very top groups of whatever we are talking about, and because of the kind of country we have, we have that opportunity, and people do move from one income tax bracket up to the next one, for example, as we increase our incomes. So we do not want to punish anyone for being successful. That class warfare went out of style when the Cold War ended. I do not think it has a part in our debate.

Second, his assertions about who will pay are patently false. Small business will be among the hardest hit by these tax increases. Let me explain why this is true because, as you have just heard, some on the other side tend to pooh-pooh this idea. The reason is this. Under the Internal Revenue Code, many small businesses are organized as passthrough entities, meaning they pay taxes at the individual income tax marginal rates. So if you and your wife or you and your husband own a small business, and you are a passthrough entity, you pay your small business income taxes as individuals. That is how this happens. You are not a corporation, you are paying your taxes as people, as individuals, the same as anybody else pays as an individual.

Those who currently pay at either the 33 or 35 percent rate, which is the top two marginal rates, would, under the President's proposal, have their taxes increased so you would then be paying 36 or 39.9 percent, respectively, and if you add in the health care legislation-required taxes, it is closer to 42 percent. So you are going from 35 to 42 percent as an individual paying individual income taxes on the money you make through the small business you and your spouse own, for example.

My colleague from Illinois says: Well, that does not apply to very many people. How many people does it apply to? What is 3 percent of the people with this kind of income? Almost 750,000 people. Almost 750,000, according to the Joint Committee on Taxation--not my number--estimates that in 2011, next year, just about 750,000 taxpayers with net-positive business income will have marginal rates of 36 or 39.6 percent under the President's proposal.

That is 750,000 of the most productive small businesses in the country. The National Federation of Independent Business survey revealed that the businesses most likely to face a tax increase employ between 20 and 250 employees. So we are talking not about insignificant businesses but those that actually employ people. We also know that coming out of an economic downturn, the first jobs that are created are small business jobs.

According to U.S. Census numbers, businesses with between 20 and 299 workers employ more than 25 percent of the entire workforce. So when we talk about, well, it is only 3 percent. Well, the question is, 3 percent of what? How many does that actually amount to? How many of the employees in the entire country does that mean? Twenty-five percent of the employees in the country is, by any measure, a significant chunk of folks.

These are the people whom we want to raise taxes on? I do not think so. Some Democrats have been claiming these tax increases, as I said, would exempt 97 percent of small businesses. Well, let me shed a little bit of light on that number.

In a recent Wall Street Journal article entitled, ``The Small Business Tax Hike and the 97 Percent Fallacy,'' two economists, well respected, Kevin Hassett and Alan Viard, explained that anyone who reports business income on Schedule C of their tax return is counted as a small business.

So if someone makes a little money selling a product on eBay and reports that as business income, they are counted as a small business.

What is the result? Obviously, we have a lot of folks counted as small businesses who are not really the kind of small businesses we think of as employing folks, these companies that employ between 20 and 299 workers. The other group just reports schedule C income and are not the kind of small businesses creating jobs. This is a very important number to keep in mind.

According to the IRS, Hassett and Viard write, ``fully 48 percent of the net income of sole proprietorships, partnerships and S corporations reported on tax returns went to households with incomes above $200,000 in 2007. That's the number to look at.''

So when we talk about these small businesses, these corporations whose owners report their income as individual income, 48 percent of the net income of sole proprietorships, partnerships, and S corporations reported on tax returns went to people above the $200,000 mark. Those are the small businesses that are employing people. Those are the folks who will be hardest hit when this tax increase is put into effect. Frankly, it is many of these businesses that are the most profitable small businesses, and they are the ones that will be creating the new jobs to bring us out of the economic doldrums we are in. Americans know this. That is why I think the key to economic recovery being new jobs depends upon what we do to punish the people who create the new jobs. We don't need more government spending. That is the old plan of the Democrats. It has clearly failed. What we need is new jobs.

The President recently proposed a package of temporary tax credits that includes, among other things, a writeoff for all business capital purchases in 2011. Obviously, this concedes the economic point that tax relief can spur job growth, but there is cognitive dissonance about what the rate increases will mean for small businesses.

I turn again to an op-ed in the Wall Street Journal by Michael Fleischer who is a small business owner in New Jersey. He wrote an op- ed entitled, ``Why I am Not Hiring.'' We want to know the answer to that, if we are going to figure out how to help him hire more people.

He added up all of the costs of government when he hires somebody new, particularly the tax cost. He also included regulatory costs and other mandates. His conclusion:

A life in business is filled with uncertainties, but I can

be quite sure that every time I hire someone my obligations

to the government go up. From where I sit, the government's

message is unmistakable: Creating a new job carries a

punishing price.

What price is he talking about, looking at this potential tax increase I have been talking about? He estimates over $75,000 to hire somebody who makes $44,000. So I think his cost was close to $78,000. That is the punishing burden we put upon businessmen such as him just to hire more people. Some big businesses can stand that. The small businesses that would bear the brunt of this tax increase cannot. That is precisely why small businessmen such as Michael Fleischer are not hiring today.

Why would we increase the burden he bears in hiring more people? What we ought to be doing is ensuring that the tax rates that have been in effect now for 10 years can continue forward so people have certainty about what they will be paying, and those very small business folks who are hiring the people we want to go back to work would not have to pay an additional burden in the form of a higher income tax rate.

The President and some of our friends on the other side have argued that if taxes don't go up, those in the top brackets will just save more; that will do little for job creation and economic growth. This is the one that really bugs me. It is as if we can't appreciate what happens when somebody saves money. Do my colleagues know of anybody who buries money in their backyard? I don't. Any person who saves money either puts it in a bank where it is lent out to somebody, usually a business so it can hire more people or buy equipment, or they invest in a stock or a bond, equities usually. What is that investment? It is providing capital to business. What does business do with capital? It either hires people or buys equipment, which generally requires people to make it, and therefore they get hired as well.

The bottom line is, yes; it is fine for people who immediately go out and spend their money. That does have an indirect effect on job creation. If enough people spend enough money, somebody will have to go back to work to make the products. But the truth is, money that is saved has a direct impact on job creation because it directly provides capital to businesses so they can expand. Saving doesn't mean throwing one's money in a mattress or burying it in the backyard. It means investing it in our economy. If taxes go up, less money is available for those investments and for job creation.

A final note: Supporters of the pending tax hikes have frequently cited the booming economy of the 1990s to strengthen their case. They say if the economy performed so well under President Clinton, what is the big deal about returning to Clinton era income tax rates? First, they don't want to return to Clinton era income tax rates on anybody except millionaires, these people who make over $250,000 a year. But in any event, the argument misses the point. The question is not whether it is possible to have strong economic growth with higher income tax rates, though it is less likely that occurs. Rather, the question is whether we should be raising taxes in the aftermath of one of the worst recessions where some people are talking about having a double-dip recession, and it is clear we are not out of America's worst financial crisis and recession since World War II. I don't know of an economist who says that is a good idea.

Peter Orszag, the President's last OMB Director, just had a big op-ed in the New York Times in which he said this is not the time to raise taxes, when we still have these economic difficulties--on anybody. Indeed, the timing of President Obama's proposed tax increases could not be worse.

I just cite the example of Japan during the so-called lost decade. They suffered a massive financial collapse in the early 1990s. One of the responses was to actually reduce taxes and boost economic activity. And it did. They began to come back. Then for reasons that elude me, they decided in 1997 to raise taxes again and, sure enough, the economy fell back into recession. I should think Japan's experience provides a cautionary tail about the dangers of increasing taxes amid a very shaky economic recovery.

In their comprehensive survey of financial meltdowns across the globe, economists Carmen Reinhart and Kenneth Rogoff tell us that recoveries following such meltdowns are typically quite slow. The current U.S. recovery is no exception. America's unemployment rate has been above 9 percent for more than a year. Speaking to the Federal Reserve's annual symposium in Jackson Hole, Reinhart said that based on the history of past financial crises, it is conceivable that U.S. unemployment could stay at 8 or 9 percent for another 7 years.

If that is the case, why on Earth would anybody be talking about raising taxes on anyone, most especially the small business folks who will be the first to hire coming out of this economic downturn? It is beyond me.

Obviously, the way to avoid that bleak scenario is to reject the tax increases proposed by the President and some on the other side of the aisle.

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

Mr. President, I want to speak on the nomination of Jane Stranch--a vote we will be taking here in about 45 minutes--nominated to the Sixth Circuit Court of Appeals.

It is always with a great deal of reluctance that I oppose a nominee for the bench. Most of the people who are nominated are nominally qualified, in that they have records as attorneys or sometimes as judges in lower courts, have recommendations from bar associations and the like. But occasionally it is necessary to oppose a nominee. And while I certainly acknowledge that Jane Stranch has the qualifications one would expect of a nominee for a court of this significance, I oppose her nomination because of a very troubling development that I see in several nominations.

At some point I think it is important to draw the line and say that the President has got to be very careful not to nominate people who have--and in this case who have not--taken, in my view, a strong enough position against applying foreign law to interpret the American Constitution or to interpret American laws that apply to cases before them. We have seen this before in nominees, in then-Judge Sonia Sotomayor. When she had her Supreme Court hearing, several of us on this side of the aisle raised the question with respect to her position on foreign law. In many respects she said: Don't worry, I won't apply foreign law. Then in one of the cases in her first term as a Supreme Court Justice she did exactly that.

We have raised the same question with regard to people such as Harold Koh and others. I want to quote one statement Ms. Stranch made to illustrate the point I am trying to make. At some point, unless Members vote against nominees who appear to take these positions, I suspect the President will keep on nominating people with these views and then wonder why we oppose them. So I am going to be clear about why I oppose this nominee, even though I am sure many of her other qualifications are fine. She said this regarding cases where foreign law was used:

In these few cases, references to foreign law were made for

such purposes as extrapolating on societal norms and

standards of decency, refuting contrary assertions, or

confirming American views. Roper [a Supreme Court case]

specifically noted that the foreign law references were ``not

controlling'' and were presented for the purpose of

confirmation of the Court's conclusions.

The problem with that statement--and while I appreciate the fact that she says foreign law is not controlling--is that the reality is foreign law has no place in the interpretation of the American Constitution and yet the Court continues to do that, with Justices continually saying it isn't controlling. If it is not controlling, why do it? Courts are supposed to look at precedent. What is precedent? Precedent is law that controls the case. There is no point in going outside of that and bringing in extraneous material. If it is not controlling, it is extraneous. If it is extraneous, it is redundant. Why bring it in?

I appreciate her recognition that foreign law is not controlling, but interpreting the Constitution doesn't require the application of foreign law to develop material on societal norms or standards of decency or to refute contrary assertions, and it doesn't have any relevance in even confirming American views, as she said in her statement. If the American view of the Constitution is X, let's say, then it is X. That is the American view. And if it is agreed to by other countries, that is fine. If it is not, it is not the judge's business to inquire into it and wonder why it does agree or does not agree with the American view.

I think that until enough of us register the view that we are not going to vote for judges who subscribe to the

views Jane Stranch has articulated, as I said, I suspect the President will simply continue to nominate those individuals, and that is something I think the majority of us--certainly the majority of Americans--would object to.

Again, I regret having to express my opposition to this nominee, but in order to render my objection to the kind of jurisprudence they mentioned, the only way I can do that, I gather, is to vote no, which is what I intend to do.

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

The following Senators are necessarily absent: the Senator from Kansas (Mr. Brownback), the Senator from Wyoming (Mr. Enzi), the Senator from New Hampshire (Mr. Gregg), and the Senator from Alaska (Ms. Murkowski).

The following Senator is necessarily absent: the Senator from Louisiana (Mr. Vitter).

The following Senator is necessarily absent: the Senator from Louisiana (Mr. Vitter).

Mr. President, Elena Kagan is intelligent, well spoken, personable, and schooled in the law. She is skilled in the art of argument, perhaps to a fault. Ignoring her own advice in the now famous University of Chicago Law Review article, she did not testify meaningfully before the Judiciary Committee, concealing and disguising her views and playing the same game of ``hide the ball'' as some who went before her, albeit with more skill. Probably because she criticized the practice so directly, many expected her to set a different standard.

Others have asked whether Judiciary Committee hearings have been rendered largely free of substance and what, if anything, can be done about it. The former Judiciary Committee chairman, Arlen Specter, who lamented that Ms. Kagan, during her testimony, had not ``answered much of anything,'' went on to say this:

It would be my hope that we could find some place between

voting no and having some sort of substantive answers. But I

think we are searching for a way how Senators can succeed in

getting substantive answers, as you advocated in the Chicago

Law Review, short of voting no.

I confess that, similar to Senator Specter, I don't know how we can force nominees to be forthcoming except through our votes.

To be clear, my threshold for supporting a nominee does not require answering how one would vote on issues sure to come before the Court, nor necessarily expressing agreement or disagreement with decisions or Court opinions. It is possible to learn much about a nominee's approach to judging without committing one to a specific position in future cases. What we should expect, however, is candor and a willingness to honestly discuss background and general constitutional principles, approaches to judging and writings and matters within the nominee's background that bear on the nominee's suitability for the bench.

In explaining why I could not vote for now-Justice Sotomayor, I said I thought she was disingenuous with the Judiciary Committee. Obviously, reaching such a conclusion precludes support, notwithstanding other qualifications for the position. Reluctantly, after analysis of her testimony, weighed with her past writings, statements, and actions, I have reached the same conclusion regarding Elena Kagan.

Exhibit A is her insistence on redefining her position on military recruiting on Harvard campus. Her ``separate but equal'' defense and attempt to downplay the steps she took to undermine the legal policy of don't ask, don't tell were, ultimately, unbelievable. It is almost unfathomable, for example, that someone with Ms. Kagan's considerable legal acumen could have, as she asserted, always thought we were acting in compliance with the Solomon amendment.

Ms. Kagan tried to convince the Judiciary Committee that her actions against the military were a justifiable response to a policy she viewed as discriminating against homosexuals. But

as Senator Sessions noted, her stand against homosexual discrimination was not universal. She did not speak out, for example, when Harvard accepted $20 million from a member of the Saudi royal family to establish a center for the study of Sharia law, even though under Sharia law ``sexual activity between two persons of the same gender is punishable by death or flogging.'' Her decision to punish the military for a policy adopted by Congress is especially perplexing, given her failure to express concern over or take action against the establishment of a center to promote a legal system linked to the abuse of homosexuals, women, and others.

Exhibit B is her astonishing legal definition of what she meant in her effusive praise for Justice Marshall's vision of the role of the Court, presumably to avoid the obvious conclusion that she agreed with his activist approach to judging. Justice Marshall had an enormous influence on our jurisprudence, starting with his advocacy before--and most especially with--Brown v. Board of Education. But no serious student would argue that he didn't try to push the law as far as he could in furtherance of his philosophy.

Indeed, consider the comments of another former Marshall clerk, liberal law professor Cass Sunstein, who now serves in the Obama administration, who has said this:

A serious commitment to Marshall's vision of constitutional

liberty would entail an extraordinary judicial role, one for

which courts are quite ill suited.

He has also acknowledged:

Even if the best substantive theory calls for something

like Marshall's vision, institutional considerations would

argue powerfully against it.

Ms. Kagan's attempt to define Justice Marshall's philosophy as meaning only that he wanted everyone to have equal access to the courts is--there is no other word for it--disingenuous.

Because Ms. Kagan apparently embraces his philosophy but feared public acknowledgment of that would confirm the concern that she would be a results-oriented judge, she fudged. In doing so, she confirmed the suspicion and compounded the problem with deceptive testimony.

Exhibit C is the explanation of several of her bench memos to Justice Marshall, insisting they did not contain her views but were merely a channeling of his. Ms. Kagan offered this explanation of her memo categorizing litigants as ``good guys'' and ``bad guys,'' another memo stating that the government was ``for once on the side of the angels,'' and a memo expressing fear that the Court might ``create some very bad law on abortion and/or prisoners' rights.'' Reading these memos, one gets the sense that Ms. Kagan was not simply channeling her boss but was instead expressing her own personal policy views on matters before the Court and that they had as much to do with who the litigants were as what the issues were.

Ms. Kagan also attempted to recast her praise of Israeli Supreme Court Justice Aharon Barak, who, in the words of the Associated Press, is widely acknowledged as someone who took an activist approach to judging. Well, that is exhibit D. Judge Richard Posner described Judge Barak's history on the Israeli Supreme Court as ``creating a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.''

Under his leadership, the Israeli Supreme Court aggrandized its own power far beyond what even many of those on the left would view as acceptable in America. To cite one example of Justice Barak's judicial philosophy, he wrote a judge's role ``is not restricted to adjudicating disputes in which parties claim that their personal rights have been violated'' but rather ``to bridge the gap between law and society.''

Well, bridging gaps, clearly, and using the law to address societal problems is not the job of the courts. That is a political approach.

Ms. Kagan claimed, during her hearing, that her praise for Justice Barak had nothing to do with his leftwing judicial philosophy. But an examination of her statements tells a different story. In 2002, Ms. Kagan praised Aharon Barak for ``presiding over the development of one of the most principled legal systems in the world.''

In 2006, she again heaped professional praise on Justice Barak, calling him her ``judicial hero.'' Ed Whelan, who is a noted legal commentator, summarized this event well:

Kagan begins by referring to the portraits of four ``great

justices'' with whom Harvard Law School has been associated--

Brandeis, Holmes, Brennan, and Frankfurter. But, she says,

``the Harvard Law School association of which I'm most

proud''--more proud, that is, than of the associations with

Brandeis, Holmes, Brennan, or Frankfurter--``is the one we

have with President Barak of the Israeli Supreme Court.

And then she continued:

I told President Barak, and I want to repeat in public,

that he is my judicial hero. He is the judge or justice in my

lifetime whom [sic], I think, best represents and has best

advanced the values of democracy and human rights, of the

rule of law and of justice.

During her confirmation hearing, Ms. Kagan, under oath, testified that she admired Justice Barak for his role in:

. . . creating an independent judiciary for Israel. . . .

not for his particular judicial philosophy, not for any of

his particular decisions.

That testimony cannot be squared with her public declaration that Justice Barak ``is the judge or justice in my lifetime whom [sic], I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.''

Exhibit E is Ms. Kagan's answer to whether she is a legal progressive. Her statements, again, were designed to cloud her views. Vice President Biden's Chief of Staff, Ron Klain--who served as chief counsel of the Senate Judiciary Committee, Chief of Staff to Attorney General Reno, and Chief of Staff to Vice President Gore--has known Ms. Kagan as far back as 1993, when they worked together on the Ginsburg hearings. At Ms. Kagan's hearing, Senator Sessions pointed out that after Ms. Kagan was nominated, Mr. Klain said:

Elena [Kagan] is clearly a legal progressive. I think Elena

is someone who comes from the progressive side of the

spectrum. She clerked for Judge Mikva, clerked for Justice

Marshall, worked in the Clinton administration, worked in the

Obama administration. I don't think there's any mystery of

the fact that she is, as I said, of more of the progressive

role than not.

Senator Sessions then asked Ms. Kagan:

Do you agree with the characterization that you're a legal

progressive?

She replied:

I honestly don't know what that label means.

So Senator Sessions pressed Ms. Kagan:

I'm asking about his firm statement that you are a legal

progressive, which means something. I think he knew what he

was talking about. He's a skilled lawyer who's been in the

midst of the great debates of this country about law and

politics, just as you have. And so I ask you again: Do you

think that is a fair characterization of your views?

Certainly, you don't think he was attempting to embarrass you

or hurt you in that process.

She again dodged with an answer that strains credulity.

I love my good friend, Ron Klain, but I guess I think that

people should be allowed to label themselves. And that's--you

know, I don't know what that label means and so I guess I'm

not going to characterize it one way or the other.

So a nominee to the highest Court in the land and a former dean of one of the Nation's most prestigious law schools insists that she doesn't know what the term ``legal progressive'' means.

But later in the hearing, Senator Graham mentioned that Greg Craig, President Obama's first White House Counsel, had praised Ms. Kagan. Mr. Craig said:

[Elena Kagan] is largely a progressive in the mold of Obama

himself.

So Senator Graham asked:

Would you consider them, your political views, progressive?

Then Ms. Kagan acknowledged that, yes, her ``political views are generally progressive.''

It is hard to believe Ms. Kagan knows what a political progressive is but not a legal progressive.

Exhibit F: Her attempt to redefine her views in the letter sent to Judiciary Committee on November 14, 2005, in which she objected to the Graham-Kyl-Cornyn amendment dealing with treatment of enemy detainees. Her characterization of our approach as being similar to the ``fundamentally lawless'' actions of ``dictatorships'' was clearly, I believe, injudicious and revealed the fervor of her position, much like her

characterization of the don't ask, don't tell policy as ``a moral injustice of the first order,'' and it could suggest a viewpoint that she would have a hard time laying aside if similar questions ever came before her as a Supreme Court Justice.

Her attempt to distance herself from the obvious application of her views to places other than Gitmo--obvious because her letter bemoaned the ``serious and disturbing reports of the abuse of prisoners in Guantanamo, Iraq and Afghanistan''--and issues other than conviction and sentencing--even though her letter stated that our amendment ``unfortunately'' would ``prohibit challenges to detention practices, treatment of prisoners, adjudications of their guilt and their punishment''--suggests either that she was uncomfortable defending her position or she wanted to preserve her right to sit on such cases in the future or both. The attempt to obscure positions she had previously stated was, I believe, an attempt to run away from those positions and mislead the committee.

Exhibit G: Ms. Kagan's doublespeak on the question of same-sex marriage. Prior to her confirmation as Solicitor General, when she was not restricted, as judicial nominees are, in her ability to comment on issues that may come before the courts, Senator Cornyn asked Ms. Kagan a direct question about her personal views:

Do you believe that there is a fundamental constitutional

right to same-sex marriage?

Her answer then seemed clear. She wrote:

There is no Federal constitutional right to same-sex

marriage.

But at the hearing, when I asked Ms. Kagan to confirm her views on this subject, she distorted both Senator Cornyn's question and her answer. She told me Senator Cornyn had asked whether she could ``perform the role of the Solicitor General'' and vigorously defend DOMA, given her opposition to don't ask, don't tell. When I pointed out that Senator Cornyn's question was about a constitutional right to same-sex marriage, not DOMA, Ms. Kagan then asserted that her answer to Senator Cornyn--that ``there is no Federal constitutional right to same-sex marriage''--intended to convey that she ``understood the state of the law and accepted the state of the law.'' Having reinterpreted her previous answer, she then told me that, as a Supreme Court nominee, it would not be ``appropriate'' for her to share her personal views on the subject, since such a case may come before the Court.

It strikes me that Ms. Kagan was, at the time of her nomination to be Solicitor General, trying to create an impression--apparently a false one--that she did not personally believe the Constitution could be read to include a right to same-sex marriage.

That leads to Exhibit H: her involvement, while serving as Solicitor General, in a case concerning the constitutionality of the Defense of Marriage Act, DOMA.

When nominated for the job of Solicitor General, Ms. Kagan emphasized in her opening statement the ``critical responsibilities'' that the Solicitor General owes to Congress, ``most notably the vigorous defense of the statutes of this country against constitutional attack.'' Later, Ms. Kagan reiterated that she could represent the interests of the United States ``with vigor, even when they conflict with my own opinions. I believe deeply that specific roles carry with them specific responsibilities and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible.''

Ms. Kagan even cited former Solicitor General Ted Olson's defense of the campaign finance laws as an example of the way a Solicitor General should approach the job. She said, ``I know that Ted Olson would not have voted for the McCain-Feingold bill, but he . . . did an extraordinary job of defending that piece of legislation. . . . And that's what a solicitor general does.''

Yet, there is substantial reason to doubt that Ms. Kagan genuinely carried out her obligation to ``vigorously defend'' a Federal statute in district court, the Defense of Marriage Act. In response to questions at her Supreme Court hearing, Ms. Kagan acknowledged that she was involved in two district court cases involving DOMA. Her personal involvement in these cases was itself unusual as she admitted in response to written questions: ``In the normal course, the [Solicitor General's] Office does not participate in district court litigation.''

Her involvement would not have necessarily raised concerns were it not for the position that the government advocated in the cases. In the first case, Smelt v. United States, the Department of Justice filed a brief that, as part of its so-called ``defense'' of the DOMA statute, admitted to the court that ``this Administration does not support DOMA as/matter of policy, believes that it is discriminatory, and supports its repeal.'' How can a lawyer mount a ``vigorous'' defense of a statute while declaring the statute to be discriminatory? But it gets worse. The Justice Department's brief also asked the court to ignore one of the strongest arguments in support of DOMA--namely that traditional marriage serves as a valuable vehicle for encouraging responsible procreation and childbearing. The brief asserted that the government ``does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.''

It is clear that the Justice Department's brief, which was supposed to be filed in support of the DOMA statute, in fact undercut the law's constitutionality. As one legal scholar and proponent of same-sex marriage said about the Justice Department's argument:

This new position is a gift to the gay-marriage movement,

since it was not necessary to support the government's

position. It will be cited by litigants in state and federal

litigation, and will no doubt make its way into judicial

opinions. Indeed, some state court decisions have relied very

heavily on procreation and child-rearing rationales to reject

SSM [same-sex marriage] claims. The DOJ is helping knock out

a leg from under the opposition to gay marriage.

The Smelt case was later dismissed by the district court for other reasons. And that brings us to the second DOMA case in which Ms. Kagan was involved--Gill v. Office of Personnel Management. In Gill, the Justice Department again offered the same half-hearted defense of DOMA and repudiated its strongest legal arguments. This time, however, the district court seized on the Justice Department's rejection of the procreation and child-bearing rationales and found that DOMA was unconstitutional. Ed Whelan, the noted legal commentator and a former principal deputy of the Office of Legal Counsel, has explained that the decision in Gill ``would be ridiculous but for DOJ's abandonment of Congress's stated justifications for DOMA. Under proper application of the very deferential `rational basis' review, for example, it would be enough to recognize that it would have been reasonable for Congress in 1996 to regard traditional marriage as a valuable vehicle for encouraging responsible procreation and childbearing.''

Although Ms. Kagan admitted being involved in both Smelt and Gill, she refused to tell us her role in the deliberations. In response to written questions, Ms. Kagan did admit that her participation in Smelt was ``sufficiently substantial'' that she would recuse herself should the case come before the Supreme Court. But this promise itself was disingenuous because the Smelt case had already been dismissed, so there was no chance that it would come before the Supreme Court. On the other hand, the Gill case may very well make its way to the Supreme Court, but Ms. Kagan did not promise to recuse herself from participating in it, despite her involvement in formulating the Justice Department's flawed defense of DOMA in the case.

We will likely never know what Ms. Kagan's advice was in these cases. What we do know is that Ms. Kagan has a history of ignoring the law when it conflicts with the gay rights agenda. We also know that she took the unusual step of getting involved in these district court cases challenging DOMA. And we know that the Justice Department went out of its way to abandon one of the fundamental rationales for the DOMA statute, which resulted in a court, for the first time ever, ruling that DOMA was unconstitutional. On the basis of these facts, I believe that any reasonable observer would question whether Ms. Kagan kept her promise to us that she would ``vigorously defend'' Federal statute as Solicitor General.

Exhibit I is her dubious explanation of why, in another case that she handled as Solicitor General, she declined

to appeal the Ninth Circuit's adverse ruling in Witt v. Department of the Air Force, a case challenging the constitutionality of the government's don't ask, don't tell statute. At her hearing, Ms. Kagan claimed that allowing the Ninth Circuit decision to stand, and accepting a remand and trial in district court, would provide the Supreme Court with a ``fuller record'' and would help the government ``show what the Ninth Circuit was demanding that the government do'' to defend don't ask, don't tell.

But a review of the Ninth Circuit opinion and the record in the case shows that Ms. Kagan's explanation was disingenuous. The Ninth Circuit itself had already said what the government would need to prove for the Federal law to survive--there was no need to develop a ``fuller record'' or seek further clarification from the courts.

Ms. Kagan's decision to let the case return to the district court ensured that members of the military would be subjected to invasive and humiliating trials in the Witt case and in all other challenges against don't ask, don't tell--trials in which soldiers would be compelled to testify against their comrades, discuss their views of a fellow soldier's sexual practices, and watch as the unit's personnel files become fodder for lawyers trying to condemn what is supposed to be a military-wide policy. The government rightly argued before the trial court that such trials are guaranteed to destroy unit cohesion--the very thing that Congress sought to protect when it passed the don't ask, don't tell statute. And the trial court records show that Kagan knew in advance that the trial process would harm the military's interests. But she decided to thrust the government into exactly the position the military's lawyers most wanted to avoid, perhaps to keep in place, and insulate from Supreme Court review, a Ninth Circuit ruling that places don't ask, don't tell policy in jeopardy.

In addition to my concerns that Ms. Kagan was less than candid with the Judiciary Committee, I am also concerned about her leftist ideology and the potential it will influence her judging. I will discuss three areas of concern.

First, is her defense of the brief filed in Chamber of Commerce v. Candelaria. It takes a clever lawyer to argue that the Court should take this immigration case, but not Lopez-Rodriguez v. Holder on the traditional reasons for granting certiorari. In Candelaria, she asked the Supreme Court to strike down an Arizona law that permits the State to suspend or revoke the business licenses of companies that knowingly employ illegal aliens. She did this even though Federal law expressly authorizes States to enforce immigration laws ``through licensing'' and even though the courts that have considered the issue have determined that States could do precisely what Arizona did. Yet, in Lopez- Rodriguez, another immigration case, she refused to appeal a decision by the Ninth Circuit that permits ordinary deportation hearings to be bogged down by long legal fights over the admissibility of clear evidence that a person is illegally here. Unlike Candelaria, the Ninth Circuit's decision in Lopez-Rodriguez was in conflict with the decisions of other courts--including the Supreme Court--involved a significant constitutional issue. It is difficult not to conclude that Ms. Kagan's actions in these two cases were driven less by the law, and more by political expediency.

My second concern about ideology is that Ms. Kagan has shown she may hold a limited reading of the second amendment, even after the Heller and McDonald cases. When asked whether the right to bear arms was a ``fundamental right,'' Ms. Kagan said, ``I think that that's what the court held in McDonald.'' She also said that the holding was ``[g]ood precedent going forward.'' Of course, there is a record of nominees describing the holding of a case and proclaiming that it is ``good precedent,'' only to vote to overturn or distinguish that precedent once they ascend to the bench. Justice Sotomayor did just that on this issue.

But we need not rely on cynicism to demonstrate that Ms. Kagan may not view the recent second amendment precedents as settling the question of whether gun ownership is a ``fundamental right.''

Generally speaking, when a constitutional right is ``fundamental,'' any government restriction of that right is subject to ``strict scrutiny'' by the courts. But at her hearing, Ms. Kagan left open the possibility that some other, lesser standard of scrutiny should apply to second amendment restrictions. She said that ``going forward the Supreme Court will need to decide what level of constitutional scrutiny to apply to gun regulations.'' This does not sound like a commitment to the principle that the second amendment guarantees a fundamental right. When weighed with her well-documented work in the Clinton administration to advance gun control legislation, I believe there is a justifiable concern that Ms. Kagan would vote to construe Heller and McDonald as narrowly as possible.

Third, I am concerned that Ms. Kagan sees few, if any, limitations on Congress's authority to regulate behavior, or interstate commerce. In a remarkable exchange, Senator Coburn asked Ms. Kagan whether it would be constitutional for Congress to pass a law requiring Americans ``to eat three vegetables and three fruits every day.'' Although Ms. Kagan said that such a law sounded ``dumb,'' she refused to say that such a law would be unconstitutional. In fact, during the course of the exchange, Ms. Kagan repeatedly emphasized that a court analyzing such a statute should ``read the [commerce] clause broadly'' and give ``real deference'' to Congress.

I agree that the commerce clause gives the Congress substantial authority, but it does not give Congress unlimited authority. That Ms. Kagan was unwilling to say a law requiring the consumption of produce is beyond Congress's authority suggests she would vote to uphold statutes that exceed the boundaries of the commerce clause. Stretching the commerce clause gives too much power to Congress.

Finally, it is worth noting that Ms. Kagan came to the Senate with a lack of legal and judicial experience, especially when compared to other recent nominees. Some have reached back 40 years to compare Ms. Kagan's experience to that of Chief Justice Rehnquist, the last nominee without prior judicial experience confirmed to the Supreme Court in 1972. William Rehnquist, however, spent 16 years as a practicing litigator in my home State of Arizona and 2 more years as Assistant Attorney General, Office of Legal Counsel, a position that was later held Justice Scalia 1974-1977 and that, according to the Department of Justice, ``typically deal[s] with legal issues of particular complexity'' and ``provides authoritative legal advice to the President and all the executive branch agencies.'' In contrast, Ms. Kagan's law practice is confined to two years in private practice shortly after law school and 1 year as the Solicitor General.

Her limited experience is not by itself disqualifying, but it did increase the importance of her hearing. Had she answered questions in an honest and straightforward manner, we might have a better basis to know what kind of judge she would be. But instead, Ms. Kagan either dodged questions or gave what were clearly disingenuous answers intended to mask her views. She also failed to make the case that her political ideology would not influence her judging. For all of the reasons I have discussed, I cannot support her nomination.

Mr. President, I would like to speak for a few moments about a memorandum that was received in the offices of Senator Charles Grassley, pursuant to a request of the Department of Homeland Security, which has, unfortunately, raised a lot of questions about the administration's commitment to enforcing congressional law. It is undated, but the memorandum is 11 pages. It is on the stationery of U.S. Citizenship and Immigration Services. It is a memorandum to Alejandro N. Mayorkas, the Director, from four individuals within the USCIS. The subject matter is described as ``Administrative Alternatives to Comprehensive Immigration Reform.''

After reading these 11 pages, I have to ask the question whether this administration, frustrated by the fact

that Congress has not acted to pass comprehensive immigration reform, is now considering an end-around the Congress by administrative action through reinterpretations, definitions, rules, and regulations, changing guidelines and the like--in other words, administrative actions to accomplish what cannot be accomplished because Congress is in no mood right now to adopt comprehensive immigration reform--in effect, to use the phrase in the memorandum, a ``nonlegislative version of amnesty.''

I hope this memorandum, which is designated a ``draft,'' will be thoroughly explained by the administration and will be disavowed in terms of an intention to do an end run around Congress. I am hopeful that some hearings can be held so the authors of the memorandum, or the Director, can explain why this memorandum would be written in the first place and what they intend to do about it.

The purpose of the memorandum is described as follows:

This memorandum offers administrative relief options--

To, among other things--

reduce the threat of removal for certain individuals

present in the United States without authorization.

In other words, illegal aliens.

The summary of the memo reads:

In the absence of comprehensive Immigration Reform, USCIS

can extend benefits and/or protections to many individuals

and groups by issuing new guidance and regulations,

exercising discretion with regard to parole-in-place,

deferred action and the issuance of Notices to Appear and

adopting significant process improvements.

Then they go on to summarize a variety of changes by which they can accomplish these purposes. Just to quote a few here: ``USCIS could reinterpret two 1990 General Counsel Opinions. . . .'' They could change the definition of ``dual intent.'' They could modify removal procedures in the public interest--strategically, they note. They could ``issue guidance or a regulation lessening the `extreme hardship' standard.''

I quote from the ``Options'' part of the memo:

The following options--used alone or in combination--have

the potential to result in meaningful immigration reform

absent legislative action.

Indeed, they do. This would be a way for the bureaucrats within the administration to change Congress's intent by redefining terms, issuing guidelines, rules and regulations, and practices which would result in the same thing they would like to achieve in the form of comprehensive immigration reform, including, among other things, amnesty for illegal immigrants. But they could do all of this without Congress ever having passed a single law.

Just to go through some of the other things they talk about here, they could allow certain TPS applicants who entered without inspection--that means they entered the country illegally--to adjust their status. They could expand the meaning of ``urgent humanitarian reasons.'' One of the things they could--and I will quote it here:

To address these issues, OP&S is currently examining the

feasibility of policy options so that individuals would not

be deemed to have triggered the bar upon departure with prior

authorization from DHS. These options include possibilities

reexamining past interpretation of terms such as `departure,'

and `seeking admission again.' ''

I know these are terms we can find in the dictionary, but these creative bureaucrats are in effect saying: We can define these terms in a more creative way and therefore allow a lot more illegal immigrants to stay in the country indefinitely.

They say:

To increase the number of individuals applying for waivers

and improve their chances of receiving them, CIS could issue

guidance or regulation specifying a lower evidentiary

standard for extreme hardship.

If you don't like the law, you simply lower the bar. We could do that, they say, and allow more people to stay here.

They do note a couple of problems in doing these things. On page 10, they say:

While it's theoretically possible to grant deferred action

to an unrestricted number of unlawfully present individuals,

doing so would likely be controversial, not to mention

expensive.

Well, they are right about that; it would be controversial indeed. One of the reasons they note is in the final page of the memorandum, when they say--and I am quoting again:

Rather than making deferred action widely available to

hundreds of thousands and as a nonlegislative version of

amnesty, USCIS could tailor the use of this discretionary

option for particular groups such as individuals who would be

eligible for relief under the Dream Act, an estimated 50,000;

or under section 249 of the act, registry, who have resided

in the U.S. since 1996; or, as of a different date, designed

to move forward the registry provision now limited to entries

before January 1, 1972.

In other words, pick a date and say that everyone after that date can stay in the United States legally even though they gained entry illegally.

Mr. President, this is highly disturbing. Because what you have is the administration explaining that well, A, this is only a draft; and, B, we have not adopted any of these recommendations yet; and, C, we probably would not do it for everyone who is here illegally.

Well, I would hope not, but I would hope the administration would be a little more forthcoming about its intentions. This is what fosters suspicion among the American people that the administration is not serious about enforcing our laws and that they want to try to accomplish an end run around the Congress by administrative fiat.

It is the kind of situation that fosters a lack of confidence in the transparency of this administration, which was supposed to be the most transparent in history, when we have to find out only through a process of a member of the Judiciary Committee literally forcing them to cough up this memo of what they are thinking about.

It is obvious from the language of the memo that a great deal of thought has been put into this, and it has gone throughout the Department of Homeland Security, when they talk about different groups having studied different options. This is the kind of thing that causes people to wonder about the administration's commitment to enforcing the law.

Finally, it is one of those things which ironically--or paradoxically--has caused people to back away from the notion of comprehensive immigration reform, because of the notion that the administration has been less than anxious to secure the border and enforce the law and, as was told to me on one occasion, the theory being that if we ever secure the border, then there will be less impetus to pass comprehensive immigration reform.

If your goal is comprehensive immigration reform and amnesty or you call it whatever term you want to there, letting people stay in this country who came here illegally, if that is your goal, and it does not appear the Congress is going to act on that anytime soon, then you resort to the tactics that are employed here by these employees at DHS. Let's figure out ways by reinterpreting commonly used phrases, by issuing new guidelines, by changing 1990 legal opinions, by other means that can be accomplished administratively, we will accomplish, in their words, a nonlegislative version of amnesty for at least specific groups of people, depending upon what date you want to use or what specific phraseology you want to use. This is why the American people do not trust Washington in general and why they have grave reservations about this administration's commitment to enforcing the law relating to illegal immigration.

A final point I would like to make is the decision that was rendered by the Federal district judge in Arizona on the now infamous Arizona law. I was troubled by one of the aspects of it because it reflected an argument the U.S. lawyers presented in court, which, in effect, was Arizona has no business trying to help the Federal Government enforce our immigration laws, among other reasons, because the Federal Government has decided--bear in mind, this is the executive branch of the Federal Government, not Congress, but this administration has decided to enforce the law selectively; that is to say, using its discretion; that is to say, not always enforcing it.

What would be some of the reasons you would not enforce it? Well, one of the main arguments they used--and the judge referred to this--is that we have to keep in mind the sensitivities of other governments-- what do they think about our enforcement of our law; that there are legitimate foreign policy reasons why the administration might not want to enforce a congressionally enacted statute.

I find this to be remarkable. Of course, in dealings with foreign nations, every State Department, every President has to be careful to try to win friends and influence people. But I do not think that you make a deliberate decision not to enforce a law that Congress has passed, which the American people clearly want enforced, simply because people in the Government of Mexico are unhappy if the law is enforced. That is obviously the country we are talking about because the Mexican Government itself intervened in the litigation to make exactly that point.

So, again, is it any wonder the American people wonder about this administration's commitment to enforcing the law, when one of the key arguments it raises in the litigation is that we do not want to have to be under a standard of complete enforcement of the law because we have some other considerations we need to take into account.

The judge says: I will agree with that and therefore say that the State of Arizona cannot insist on complete enforcement of the law because the Federal Government may have reasons not to totally enforce it. That is a troubling proposition to me, among other things, because Congress has not interpreted the law in any way other than we wrote it; namely, enforce it.

That brings up the final point. Congress passed, as part of our immigration laws, a requirement that the Department of Homeland Security respond to inquiries by Federal, State, and local officials who call in about the status of individuals whom they have stopped, for example, at a traffic stop or who they may have reason to believe are in the country illegally, and they respond to about 1 million of those inquiries a year. They have 152 employees to do it.

The Federal Government actually argued in the case, believe it or not, that the reason Arizona had to butt out and not try to help the Federal Government enforce the law was because it would result in a lot more inquiries about the legal status of people and they could not handle anymore inquiries; their capacity was only 1\1/2\ million a year; they are up to 1 million; and they only have 152 people in this unit responding to these inquiries, so they could not possibly accept this burden.

As a result, the judge ruled that the U.S. Government would be harmed in such a way that she had to grant an injunction. It would be irreparably harmed as a result of Arizona enforcing the statue. The question, obviously, occurred to me: Well, why do we not hire a few more people to answer these inquiries? I calculated it might cost about $15 million to double the number of people, and certainly this law is not going to double the number of inquiries. But say you doubled the number of people to 300 instead of 150. That solves that problem.

In other words, people in the U.S. Government, under this administration, seem to be looking for reasons not to enforce a law. That is wrong. We take an oath to uphold the law. When Congress passes a law, we intend it to be enforced. Yet you have this administration, this Justice Department, making arguments as to why the law cannot or should not be completely enforced. Is it any wonder my fellow citizens in Arizona and others around the country want someone to do what they can to try to enforce the law? If the U.S. Government will not do it, then maybe we should start to get our States involved. I agree, it is better to have the U.S. Government do it. It should be our obligation.

But if our own administration is not willing to do it to the letter of the law, and if they are willing to abide by employees who spend their time writing memos such as this, to show how to get around the law, to grant a ``nonlegislative version of amnesty,'' then clearly something is wrong, and I think Congress has to speak up.

If you reward illegality, you are going to get more of it. When this administration tries to find ways to keep people in the country who came here illegally by virtue of redefinitions and guidelines and changing opinions that go back to 1990, it suggests to me we are simply inviting more illegality, and we should not do that.

So I am going to join my colleagues on the Judiciary Committee in asking for hearings on this matter, to find out why this is being done; hopefully, to confirm that they do not intend to move forward with this but, in any event, to try to reestablish with the American people that their government in Washington does represent them, it does want to carry out their intent expressed in properly enacted legislative laws, and that, once and for all, we can make a commitment in this country that the American people have been asking for for a long time now that when it comes to our immigration laws, the Federal Government is committed to enforcing them.

Until that is done, we are not going to make progress on all the other issues relating to immigration reform that so many people have asked for. As a result, we would do well to examine this issue carefully and then reach the appropriate conclusions. If we need more money, if we need more personnel, $15 to $20 million is a drop in the bucket of this administration's $3 trillion budget. We can clearly afford to hire a few more people to do the job, if that is the government's real concern about the immigration laws; otherwise, we should have these employees come and explain why they think it is within their purview to get around the law, in the absence of congressional action.

I suggest the absence of a quorum.

The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from New Hampshire (Mr. Gregg), the Senator from Alaska (Ms. Murkowski), and the Senator from Louisiana (Mr. Vitter).

Further, if present and voting, the Senator from Alaska (Ms. Murkowski) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from Texas (Mrs. Hutchison), the Senator from Wyoming (Mr. Enzi), the Senator from Oklahoma (Mr. Inhofe), the Senator from New Hampshire (Mr. Gregg), the Senator from Oklahoma (Mr. Coburn), and the Senator from Kansas (Mr. Brownback).

Mr. President, first of all, I wish to thank the Republican leader, Senator McConnell, for his expertise and leadership on this issue. Secondly, as several of my colleagues have pointed out, the DISCLOSE Act is a direct assault on the first amendment right to free speech. Protecting political speech, guaranteed by the Bill of Rights, is one of our most sacred responsibilities.

This is a partisan bill drafted behind closed doors by current and former Democratic campaign committee leaders. It is obviously written to disadvantage Republicans and favor special interests supportive of Democrats. The closed-door process under which the DISCLOSE Act was written contradicts its supporters' professed goal of transparency. It is a partisan rewrite of campaign finance laws without hearings, without testimony, without studies, without a markup--again, written behind closed doors with the help of lobbyists and special interests.

The problems it purports to address are purely hypothetical since there have been no elections since the Citizens United case. I have seen no evidence of any abuse in the current election cycle. This legislation is an attempt to change the rules to protect incumbent candidates from criticism of unpopular decisions and positions. I know none of us like to be criticized, but we must uphold the right of others to criticize us.

Even those of us who opposed the Bipartisan Campaign Reform Act--BCRA but also known by the name McCain-Feingold--recognize that its authors sought to avoid any partisan advantage. The new rules then applied to everyone, and they only applied after the subsequent election. The same cannot be said for the DISCLOSE Act. It is 117 pages in which the bill's authors pick winners and losers, either through outright prohibitions or restrictions that are so complex they achieve the same result. The effort is too political, benefiting traditional Democratic allies,

such as labor unions, while placing burdensome restrictions on for- profit organizations and the associations that represent them.

Let me give you one example regarding the union exemptions. The new law applies to government contractors but not their unions or unions with government contracts or government unions. It is obviously discriminatory. As Leader McConnell has asked, where in the first amendment does it say that only large and entrenched special interests get the ``freedom of speech''?

Here is what the AFL-CIO president, Richard Trumka, said about the bill in April:

Congressional leaders today took a vitally important first

step to begin to address the Supreme Court's recent decision

in Citizens United v. Federal Election Commission. The AFL-

CIO commends these efforts and supports increasing disclosure

and reexamining some current campaign finance rules. . . .It

is imperative that legislation counter the excessive and

disproportionate influence by business.

Well, they have made sure it does.

Unlike BCRA, the DISCLOSE Act has an effective date of 30 days after enactment. In other words, proponents want people to stop political speech now, before the midterm elections in November.

Hundreds of diverse organizations oppose this bill, from the ACLU to the chamber of commerce. Let me just quote two.

Here is a letter from several hundred of the Nation's leading trade association and business groups:

By attempting to silence corporations' voice in the

political process while enabling unions to retain their

enormous influence, Schumer-Van Hollen is a patently

unconstitutional threat to the elections process. Schumer-Van

Hollen is a direct attack on the rights of the business

community and the role our organizations play in the national

political dialogue.

And a letter from the National Right to Life organization:

The overriding purpose is . . . to discourage, as much as

possible, disfavored groups, such as the [National Right to

Life Committee], from communicating about officeholders. . .

.This legislation has been carefully crafted to maximize

short-term political benefits for the dominant faction of one

political party, while running roughshod over the First

Amendment protections for political speech that have been

clearly and forcefully articulated by the Supreme Court.

So I hope my colleagues will recognize the damage they are doing to political discourse in violation of the first amendment that is a result of the legislation that has been drafted here for purely political advantage and will oppose the DISCLOSE Act.