Floor Statements

The following Senators are necessarily absent: the Senator from Texas (Mr. Cornyn), the Senator from Nebraska (Mr. Johanns), the Senator from Illinois (Mr. Kirk), and the Senator from Florida (Mr. Rubio).

Further, if present and voting, the Senator from Texas (Mr. Cornyn) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Florida (Mr. Rubio).

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I would like to speak about two claims that were made at the recent Democratic Convention that I believe require a response. Obviously, the Republican Convention went first and they did not have an opportunity to respond to everything that was said, but I think there are two things, as I said, that were claimed that just are not true. The first is that Republican policies caused the economic recession, so that in the Democrats' view electing Governor Romney would simply return us to those same, allegedly, failed policies. Second, it was said by several spokesmen on the Democratic side that there were no new or big ideas coming out of the Republican Convention, so you might as well give President Obama another 4 years in office. I would like to respond to both of those claims.

First, President Obama and his supporters would like Americans to believe that the so-called Bush tax cuts, deficits, and deregulation caused the great recession. Those are the Republican policies that got us into the mess, they say. The facts show this is not true. As James Pethakoukis of the American Enterprise Institute asks, if the 2001 and 2003 tax cuts caused the great recession, then why does President Obama want to keep most of them? And why did he sign a 2-year extension of those tax cuts a year and a half ago? That is a good question.

Obama supporters also claim that huge deficits resulting from these 2001 and 2003 bills caused the recession. But here are the facts. According to the Congressional Budget Office--nonpartisan--the 2001 and 2003 tax relief has only been responsible for 16 percent of the swing from surplus to deficit that they had estimated. If you look at the upper income tax relief only, that relief makes up just 4 percent of the swing. So it is impossible to say the tax cuts on the rich caused the recession. The maximum that the Congressional Budget Office can identify is potentially 4 percent. It is also important to note that since the CBO does not take into account the progrowth effects of marginal tax rate reductions--which all economists agree with--these numbers are even likely smaller than 4 percent.

Over that same period of time, new spending--this is the real problem--and interest on that spending were 12 times as responsible as the upper income tax reductions. So the real culprit here is not reducing the tax rate on Americans and especially those who are in the wealthier brackets but, rather, the new spending in which the Federal Government engaged. That is the cause of the deficits, and that did have an impact eventually on our ability to recover from the great recession.

One other note on this. The rich people, even though their tax rates were cut, ended up paying a far bigger percentage of taxes after the Bush tax cuts. The upper bracket earners paid--according to CBO again, in 2008 and 2009, the years for which they have figures, the top 20 percent of taxpayers paid 90 percent of income taxes--94 percent of income taxes. Before the Bush tax cuts, before 2001, that same top 20 percent paid only 81 percent. So the tax cuts in the upper income tax brackets resulted in an increase in the total dollar amount of taxes paid by the upper income people from 81 percent to 94 percent. So you cannot even make the argument that it was less fair. If anything, the upper income folks obviously paid a lot more--94 percent of all the income taxes paid.

Now, if deficits are the problem the Democrats are talking about, then President Obama would clearly make the problem worse. Pethakoukis notes:

The most recent Obama budget, according to CBO, would add

$6.4 trillion more to the federal budget deficit over the

next decade, leaving debt as a share of the economy stuck at

around 76 percent of GDP versus 37 percent pre-recession.

Think about it. The Obama budget leaves us with 76 percent debt as a share of GDP as opposed to 37 percent before the recession. So if debt and deficits are a problem, it is far worse under President Obama's budget than before. But, again, it turns out that is not really what caused the great recession, nor was it the third item that has been pointed to; that is, deregulation.

Deregulation under President Bush did not cause the problem. Pethakoukis writes:

Glass-Steagall ended during the Clinton administration, and

studies have found no evidence that any rule changes by the

Bush SEC contributed to the financial crisis.

Glass-Steagall is the law that used to regulate how banks made investments. That law was eventually repealed during the Clinton administration. The Bush SEC--that stands for Securities and Exchange Commission, and there are rules changes in every administration for the SEC--he is making the point that there is no evidence that any particular rule change in the SEC had anything to do with the financial crisis.

So it was not the tax cuts, it was not the deficit, and it was not deregulation. What did cause the recession? AEI's Peter Wallison has put it simply this way:

The financial crisis was a result of government housing

policy. . . . Fannie Mae and Freddie Mac were the

implementers of a substantial portion of the government

housing policy.

Now, I would note that Republicans in Congress tried to reform Fannie and Freddie, but we were opposed by Democratic Members both in the House and in the Senate, including then-Senator Barack Obama.

Most experts, I believe, will agree that the biggest reason for the collapse that occurred after 2006 was the housing market--the sale of all of these mortgages that were not worth the paper on which they were written. When that paper was all added together, bundled together and sold in big chunks to investors, and they found out their investment was not worth what they had paid for it, you had a crash and you had several people on Wall Street who went bankrupt as a result of that crash. That is the reality.

The bottom line is that there is no Republican policy that caused the recession, so it is bogus for the President to keep saying Governor Romney would just return us to the ``same failed policies.''

The second claim is that there were no new big Republican ideas to come

out of the GOP convention. I submit that claim reveals just how radical the Obama team's economic policies are. It is true that Governor Romney's ideas for economic recovery are not new. But they are big. In fact, his faith in the American people and the free enterprise system is a very big idea--not new but tried and tested as the basis for creating the wealthiest Nation ever on Earth.

Capitalism and free markets have lifted the standard of living for more people around the world than any government program or any other system. Planned economies compare very poorly to the free enterprise system of America. Margaret Thatcher once famously observed:

The problem with socialism is that, eventually, you run out

of other people's money.

Yes, a key theme of the Republican Convention was freedom, opportunity, and earned success. Americans did build our own success. To the extent that government provided any infrastructure along the way, it was paid for by taxes that Americans paid on what they earned because of their success. And, yes, this is in contrast to the theme of the Democratic Convention that our success comes from the collective, embodied mostly in government, so the bigger the government the better.

The bottom line is this: Returning to free market principles and progrowth policies will move us forward. Continued reliance on more spending, higher taxes, and bigger government will not solve our problems.

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

The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Coburn), the Senator from Illinois (Mr. Kirk), the Senator from Alaska (Ms. Murkowski), the Senator from Kentucky (Mr. Paul), the Senator from Ohio (Mr. Portman), the Senator from Florida (Mr. Rubio), and the Senator from Louisiana (Mr. Vitter).

Mr. President, all of us recognize the need to strengthen our cyber security defense to protect our defense industrial base, financial sector, and government networks from nation states and independent hackers. GEN Keith Alexander, commander of the U.S. Cyber Command, said that he rates U.S. preparedness at 3 on a scale of 1 to 10. So it is important that Congress act responsibly to get this right.

I voted against invoking cloture on the cyber security bill because I believe cloture was filed too early. This is vast, far-reaching legislation that requires ample consideration time. Two days isn't enough. Moreover, Senators weren't even given a chance to offer amendments to improve the legislation, and the legislation wasn't marked up by a relevant committee.

I believe we can ultimately come together to find enough common ground so that we can pass a bill that can get through a House-Senate conference committee.

We have come a long way since talks began, and the negotiators have spent an enormous amount of time working on two key issues: critical infrastructure and information sharing between the government and the private sector. I am confident the good will exists to work out these differences.

To that end, it is my hope that we who are involved in the bipartisan negotiations can use the month of August to continue. Cyber security isn't a Republican or a Democratic issue. Let's work together to pass a bipartisan bill that the President can sign into law.

The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Florida (Mr. Rubio).

The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Florida (Mr. Rubio).

The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk), the Senator from Kansas (Mr. Moran), the Senator from Florida (Mr. Rubio), and the Senator from Louisiana (Mr. Vitter).

Mr. President, I want to take a moment to recognize the service of one of my longtime legal counsels on the Judiciary Committee, Joe Matal. Joe will be leaving the Senate in a few weeks after 12 years of Senate service, and I wanted to say a few words of thanks.

Joe is well-known on Capitol Hill as a sharp, tenacious, and principled lawyer who fights hard for principle and the public good. It is frankly remarkable to reflect on the breadth of issues where Joe has played a major role in his years of service, but I will list a few.

Joe was intimately involved in our efforts to grapple with post-9/11 realities, in particular through the Military Commissions Act and the Detainee Treatment Act and the reauthorizations of the USA Patriot Act.

Joe has been instrumental in efforts to ensure appropriate DNA testing of criminals and to ensure that the rape-kit backlogs are cleared. He worked on the Adam Walsh Act and the Internet SAFETY Act. He is a go-to lawyer on criminal sentencing issues. Very recently, he has been an essential adviser on negotiations relating to the cybersecurity legislation.

I could go on and on. Joe has worked on the animal crush video law I sponsored, on False Claims Act amendments, on open government laws, and on legal reform bills such as asbestos litigation reform, the Class Action Fairness Act, and Bankruptcy Reform. He is also an expert on Indian Law and has been an indispensable counsel on my work that relates to Indian Country in Arizona, but also on Indian policy nationwide.

Finally, and most obviously, in recent years Joe has justly earned the respect of the legal and policy community nationwide as a major force in the development of the patent reform bill that Congress passed a year ago. In fact, when Joe leaves my office, he will remain in government service and begin work as an assistant solicitor in the U.S. Patent and Trademark Office. Joe's service there will be essential given that the agency is continuing to implement the patent reform bill that Joe did so much to create.

I would be remiss if I did not also note that some of Joe's important service has been in the bills he helped ensure did not become law. Our job as legislators is not to jump at every shadow, but to exercise caution when others seek to rush ill-considered legislation through the body. Joe's counsel and his strategic guidance have been essential in protecting the Nation from many, many bills that would have been contrary to good public policy.

So I want to thank Joe and wish him the best as he leaves for the PTO. I also want to thank his wife, Maren, and his three children, John, Liddy, and Margaret, for supporting him in these years of public service. I appreciate Joe's hard work and patriotic service and wish him the best in his new position.

Mr. President, Governor Romney suggested on a recent trip to Israel that the culture of a society plays a role in its prosperity. Some took offense to these remarks, and others disagreed with his premise. During the last few days, a debate has ensued about how culture promotes prosperity.

I believe Governor Romney made an important point. In a National Review piece entitled, ``Culture Does Matter,'' he asks, ``What exactly accounts for prosperity if not culture?''

After all, U.S. culture emphasizes freedom, equality, hard work, meritocratic excellence, upward mobility, the rule of law, and a devotion to family, education, and a purpose higher than oneself. These cultural values, and others, have made America the world's leading superpower--a beacon of prosperity, freedom, and strength. Millions of people have left their homes over the centuries to come to America and be part of our way of life.

As Governor Romney writes, Israel is also a telling example of the role of culture and prosperity. Like the United States, Israel's culture is based on freedom and the rule of law. He writes that Israel's embrace of political and economic freedom:

. . . has created conditions that have enabled innovators and

entrepreneurs to make the desert bloom. . . . In the face of

improbable odds, Israel today is a world leader in fields

ranging from medicine to information technology.

Of course other factors, such as economic policies, contribute to a country's prosperity. But the evidence shows that the role of culture shouldn't be marginalized or dismissed.

I ask unanimous consent that Governor Romney's entire article, ``Culture Does Matter,'' be printed in the Record. I urge my colleagues to read it.

Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant.

Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court.

At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation.

The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.''

This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as:

Such evidence as, in the judgment of the law, is sufficient

to establish a given fact and which if not rebutted or

contradicted, will remain sufficient. [Prima facie evidence],

if unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but [it]

may be contradicted by other evidence.

In a recent concurring and dissenting opinion, Justice Scalia went so far as to describe this definition of ``prima facie evidence'' as ``canonical.'' He also stated:

The established meaning in Virginia, then, of the term

``prima facie evidence'' appears to be perfectly orthodox: It

is evidence that suffices, on its own, to establish a

particular fact. But it is hornbook law that this is true

only to the extent that the evidence goes unrebutted. ``Prima

facie evidence of a fact is such evidence as, in judgment of

law, is sufficient to establish the fact; and, if not

rebutted, remains sufficient for the purpose.'' 7B Michie's

Jurisprudence of Virginia and West Virginia Sec. 32, 1998,

(emphasis added).

Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part.

Other Federal courts continue to use this definition of ``prima facie evidence:''

``A prima facie showing simply means evidence of such

nature as is sufficient to establish a fact and which, if

unrebutted, remains sufficient for that purpose.'' Cumulus

Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d

1167, 1176 n.13, 11th Cir. 2002.

``Under [the prima facie evidence] standard, it is

plaintiff's burden to demonstrate the existence of every fact

required to satisfy both the forum's long-arm statute and the

Due Process Clause of the Constitution. The prima facie

showing must be based upon evidence of specific facts set

forth in the record. To meet this requirement, the plaintiff

must go beyond the pleadings and make affirmative proof.

However, in evaluating whether the prima facie standard has

been satisfied, the district court is not acting as a

factfinder; rather, it accepts properly supported proffers of

evidence by a plaintiff as true and makes its ruling as a

matter of law. When the district court employs the prima

facie standard appellate review is de novo.'' United States

v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir.

2001, citations and quotations omitted.

``Prima facie evidence consists of specific factual

information which, in the absence of rebuttal, is sufficient

to show that a fairness doctrine violation exists. * * * * In

general terms, prima facie evidence is evidence which is

sufficient in law to sustain a finding in favor of a claim,

but which may be contradicted.'' American Security Council

Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24,

D.C. Cir. 1979.

``A prima facie case is established by evidence adduced by

the plaintiff in support of his case up to the time such

evidence stands unexplained and uncontradicted. The words

`prima facie,' when used to describe evidence, ex vi termini

imply that such evidence may be rebutted by competent

testimony. The term prima facie evidence' implies evidence

which may be rebutted and overcome, and simply means that in

the absence of explanatory or contradictory evidence the

finding shall be in accordance with the proof establishing

the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282,

289-90, 7th Cir. 1949, citations and quotations omitted.

``The term prima facie evidence means * * * * [e]vidence

good and sufficient on its face; such evidence as, in the

judgment of the law, is sufficient to establish a given fact,

or the group or chain of facts constituting the party's claim

or defense, and which if not rebutted or contradicted, will

remain sufficient. Prima facie evidence is evidence which, if

unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but which

may be contradicted by other evidence.''' Gibson v. Zant, 547

F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law

Dictionary, 5th Edition.

`Prima facie evidence' is evidence which, if unrebutted or

unexplained, is sufficient to establish the fact to which it

is related. It proves the fact until other proof contradicts

or overcomes the factual hypothesis initially set up by the

presumption.'' DAL Int'l Trading Co. v. The SS Milton J.

Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern.

The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that:

Some courts have developed criteria for determining whether

the activities and products of corporations constitute

matters of public interest. As previously indicated, matters

of public interest include such essentials of life as food

and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623

F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc.,

supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American

Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863.

Widespread effects of a product are yet another indicator

that statements about the product are in the public interest.

Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th

Cir.1971) (possible causes of cancer are a matter of public

concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp.

at 156, article on an arthritis cure is in public interest

because significant portion of population is afflicted with

arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet

Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90,

1974, flammability of 25,000 baby cribs held to be matter of

public interest; Krebiozen Research Found. v. Beacon Press,

Inc., 334 Mass. 86,

----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct.

65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter

of public concern. Still another criterion is substantial

government regulation of business activities and products.

The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers.

Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense.

Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C. Sec. 1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C. Sec. 205, which allows removal of disputes that appear to be covered by an international arbitration agreement.

Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.''

The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal- question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)).

In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that

``[t]he judicial power * * * * was not to be exercised

exclusively for the benefit of parties who might be

plaintiffs, and would elect the national forum, but also for

the protection of defendants who might be entitled to try

their rights, or assert their privileges, in the same

forum,'' and further noting that ``we are referred to the

power which it is admitted congress possess to remove suits

from state courts to the national courts.''

The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority.

Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in the Record.

Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant.

Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court.

At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation.

The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.''

This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as:

Such evidence as, in the judgment of the law, is sufficient

to establish a given fact and which if not rebutted or

contradicted, will remain sufficient. [Prima facie evidence],

if unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but [it]

may be contradicted by other evidence.

In a recent concurring and dissenting opinion, Justice Scalia went so far as to describe this definition of ``prima facie evidence'' as ``canonical.'' He also stated:

The established meaning in Virginia, then, of the term

``prima facie evidence'' appears to be perfectly orthodox: It

is evidence that suffices, on its own, to establish a

particular fact. But it is hornbook law that this is true

only to the extent that the evidence goes unrebutted. ``Prima

facie evidence of a fact is such evidence as, in judgment of

law, is sufficient to establish the fact; and, if not

rebutted, remains sufficient for the purpose.'' 7B Michie's

Jurisprudence of Virginia and West Virginia Sec. 32, 1998,

(emphasis added).

Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part.

Other Federal courts continue to use this definition of ``prima facie evidence:''

``A prima facie showing simply means evidence of such

nature as is sufficient to establish a fact and which, if

unrebutted, remains sufficient for that purpose.'' Cumulus

Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d

1167, 1176 n.13, 11th Cir. 2002.

``Under [the prima facie evidence] standard, it is

plaintiff's burden to demonstrate the existence of every fact

required to satisfy both the forum's long-arm statute and the

Due Process Clause of the Constitution. The prima facie

showing must be based upon evidence of specific facts set

forth in the record. To meet this requirement, the plaintiff

must go beyond the pleadings and make affirmative proof.

However, in evaluating whether the prima facie standard has

been satisfied, the district court is not acting as a

factfinder; rather, it accepts properly supported proffers of

evidence by a plaintiff as true and makes its ruling as a

matter of law. When the district court employs the prima

facie standard appellate review is de novo.'' United States

v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir.

2001, citations and quotations omitted.

``Prima facie evidence consists of specific factual

information which, in the absence of rebuttal, is sufficient

to show that a fairness doctrine violation exists. * * * * In

general terms, prima facie evidence is evidence which is

sufficient in law to sustain a finding in favor of a claim,

but which may be contradicted.'' American Security Council

Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24,

D.C. Cir. 1979.

``A prima facie case is established by evidence adduced by

the plaintiff in support of his case up to the time such

evidence stands unexplained and uncontradicted. The words

`prima facie,' when used to describe evidence, ex vi termini

imply that such evidence may be rebutted by competent

testimony. The term prima facie evidence' implies evidence

which may be rebutted and overcome, and simply means that in

the absence of explanatory or contradictory evidence the

finding shall be in accordance with the proof establishing

the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282,

289-90, 7th Cir. 1949, citations and quotations omitted.

``The term prima facie evidence means * * * * [e]vidence

good and sufficient on its face; such evidence as, in the

judgment of the law, is sufficient to establish a given fact,

or the group or chain of facts constituting the party's claim

or defense, and which if not rebutted or contradicted, will

remain sufficient. Prima facie evidence is evidence which, if

unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but which

may be contradicted by other evidence.''' Gibson v. Zant, 547

F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law

Dictionary, 5th Edition.

`Prima facie evidence' is evidence which, if unrebutted or

unexplained, is sufficient to establish the fact to which it

is related. It proves the fact until other proof contradicts

or overcomes the factual hypothesis initially set up by the

presumption.'' DAL Int'l Trading Co. v. The SS Milton J.

Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern.

The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that:

Some courts have developed criteria for determining whether

the activities and products of corporations constitute

matters of public interest. As previously indicated, matters

of public interest include such essentials of life as food

and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623

F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc.,

supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American

Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863.

Widespread effects of a product are yet another indicator

that statements about the product are in the public interest.

Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th

Cir.1971) (possible causes of cancer are a matter of public

concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp.

at 156, article on an arthritis cure is in public interest

because significant portion of population is afflicted with

arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet

Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90,

1974, flammability of 25,000 baby cribs held to be matter of

public interest; Krebiozen Research Found. v. Beacon Press,

Inc., 334 Mass. 86,

----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct.

65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter

of public concern. Still another criterion is substantial

government regulation of business activities and products.

The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers.

Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense.

Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C. Sec. 1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C. Sec. 205, which allows removal of disputes that appear to be covered by an international arbitration agreement.

Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.''

The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal- question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)).

In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that

``[t]he judicial power * * * * was not to be exercised

exclusively for the benefit of parties who might be

plaintiffs, and would elect the national forum, but also for

the protection of defendants who might be entitled to try

their rights, or assert their privileges, in the same

forum,'' and further noting that ``we are referred to the

power which it is admitted congress possess to remove suits

from state courts to the national courts.''

The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority.

Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in the Record.

The following Senators are necessarily absent: the Senator from New Hampshire (Ms. Ayotte), the Senator from South Carolina (Mr. DeMint), the Senator from South Carolina (Mr. Graham), the Senator from Illinois (Mr. Kirk), the Senator from Utah (Mr. Lee), the Senator from Arizona (Mr. McCain), and the Senator from Alaska (Ms. Murkowski).

Madam President, I just want to make a very brief comment

primarily for the benefit of our Republican colleagues who have been inquiring about whether we would have, and when we would have, a vote to invoke cloture to proceed to the cybersecurity legislation.

I am hopeful we can do that very soon. From my perspective, it would be wise for us to move forward, to go to the bill, and see if we can work things out. There have been discussions between various groups who are interested in the subject. They are now all talking to each other, which is a very good sign because it is amazing how, when Senators get together and talk to each other, sometimes we can actually accomplish things in a bipartisan way.

So my hope is that we can do that. If it turns out it does not work out, we can always vote no at the end of the day. But I believe we should go forward, that we should get on the bill, and, therefore, I intend to support cloture on the motion to proceed to the cybersecurity legislation.

I thank my colleagues for yielding.

The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), the Senator from Oklahoma (Mr. Inhofe), the Senator from Illinois (Mr. Kirk), and the Senator from Utah (Mr. Lee).

Further, if present and voting, the Senator from South Carolina (Mr. DeMint) would have voted ``nay.''