Floor Statements

Mr. President, I compliment my colleague from Texas for those remarks, but my reaction is, would that it were so, because I have in mind what is happening now in the Budget Committee--which we will all be focused on tomorrow--namely, the passage of a budget out of the committee that we will be taking up in this body next week.

I know it is usual for us to rotate between Republican and Democrat. If my colleague from New York was waiting to speak, I can advise here I will just be about 3 minutes. Let me just make this point.

There are a lot of Democratic colleagues who have said they oppose using the reconciliation process to enact an energy tax or nationalized health care because they rightly want to reach bipartisan agreement on big issues. They emphasize that the Senate version of the budget does not include reconciliation instructions--and that is correct. But all of those Senators and the American people need to know that the House version of the budget does include reconciliation and even includes a placeholder for Senate reconciliation instructions to be inserted in conference.

The House has only one reason to do this. It does not need reconciliation to pass its legislation because, of course, the House operates on a purely majority-rule principle. The only reason to include it is so that the House Speaker and the Senate Democratic leader can force a national energy tax through the Senate, a tax that could cost every household more than $3,000 a year.

Unlike the House, the Senate operates with a supermajority principle. That means anything controversial requires 60 votes. But reconciliation is a special rule, never intended to create new energy or health care policy for our country--issues that are so significant that our regular order should prevail. Indeed, that is the only way to have a bipartisan resolution of these issues. Reconciliation would turn these issues into purely partisan exercises.

If any kind of reconciliation instruction is given to either the Finance Committee or the Environment and Public Works Committee, we can be sure that a new national energy tax, a tax that will hit all American families, is the goal. Reconciliation instructions are, in effect, the Trojan horse for a national energy tax. You don't have to take my word for it. Senator Reid said yesterday, in a conference call with reporters, that he would be willing to move a national energy tax through the Senate to pay for sweeping Government health care via reconciliation.

It is easy to say these are just arcane budget rules and technicalities, but we should all be crystal clear about the consequences of reconciliation. If the final budget includes reconciliation instructions for the Senate, Senate Republicans will have no recourse for stopping Democrats from enacting this national energy tax or nationalized health care system. We will be forced to deal with the Democratic majority in a partisan way that I thought the President wanted to avoid. The Senate Parliamentarian has confirmed that if the final budget includes the special budget reconciliation provision, it could be used for any tax increase, regardless of what Democratic leadership promises.

Senate Democrats who have expressed concerns about reconciliation should not take any comfort from statements that there is not reconciliation in the Senate budget. Now, after Senator Reid's statement, they are on notice that the special rule will be used for a national energy tax.

I hope they would indicate that they would not support a conference report that included reconciliation.

Mr. President, we will yield back the time on the Republican side.

The following Senator is necessarily absent: the Senator from Wyoming (Mr. Enzi).

Mr. President, President Obama has said he wants to encourage ``a renewed spirit of national service for this and future generations.'' I submit that we can all agree on the value of promoting voluntarism. Volunteers are essential to the survival of many charitable organizations in America. But I believe S. 277 diminishes the true spirit of volunteering, first, by providing taxpayer-funded benefits such as monthly stipends and housing to participants--this financial support for volunteers will cost over $5 billion, which is a lot of money for volunteering--and secondly, by redefining volunteering as a taxpayer-funded political exercise in which Government bureaucrats can steer funding to organizations they select.

In the past, service organizations mandated by the Government have not been constrained from providing funds to organizations with political agendas, and this bill is no different. While the Mikulski substitute amendment to the bill adds a limited constraint, the political direction of the bill is still apparent. It attempts to direct resources to five newly created corps--three that aim to influence health care, energy and the environment, and education; that is, groups that reflect the key aspects of President Obama's domestic agenda. For instance, the bill would allocate funds to a newly created Clean Energy Corps in which participants would improve energy efficiency in low-income households. All well and good, but the bill would also require the Clean Energy Corps to consult with energy and labor and the Environmental Protection Agency. Among the activities of the new Clean Energy

Corps would be reducing carbon emissions. How reducing carbon emissions can be achieved by volunteers has not been made clear. Is this, in fact, an attempt to create federally subsidized ``green jobs'' in areas already served by other Government programs or traditionally served by State, local, and private community service organizations?

Another problem with the bill is its failure to eliminate programs that are not working. Current national service programs being funded, such as Learn and Serve and the AmeriCorps National Civilian Community Corps, have not been successful. On its Web site, expectmore.gov, which provides a database of Federal program performance results, the Office of Management and Budget has categorized both of these programs as not performing and ineffective.

Finally, there are the costs associated with the programs. The Congressional Budget Office estimates that the costs this year will top $1 billion and will cost another $5.7 billion from 2010 to 2014 to expand the program from the current 75,000 participants to 200,000 participants by 2014.

There is ample reason to conclude that these programs are not worth another $5.7 billion. I realize we have gotten to the point where $1 billion does not mean what it once did. But S. 277 would saddle taxpayers with another multimillion dollar bill at a time when we should be cutting back, not finding new ways to spend.

The spirit of voluntarism is alive and well in America. I see it in my own State of Arizona. Could we agree that maybe there is one area of our society in which we do not have to add more Government? I think volunteering to help our neighbors might be a good place to start.

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

The following Senator is necessarily absent: the Senator from Wyoming (Mr. Enzi).

The following Senator is necessarily absent: the Senator from Wyoming (Mr. Enzi).

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

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

Mr. President, I wish to speak briefly to the issue that has been very much on the minds of the American public over the last several days, and that is the bonuses paid to folks who work with AIG, the insurance company that has been the recipient of taxpayer money under the so-called TARP legislation.

A lot of times when Congress acts in haste, it makes mistakes, and one of the concerns I have about the bill we will be taking up is the question of whether we have adequately thought through the exact remedy we want to impose here in order to get the bonus money back. The House of Representatives acted very quickly and passed a very onerous tax bill that would claw this money back. The Senate has a bill that has been written by the chairman and ranking member of the Finance Committee that would be even broader in the sense that it would both tax the company itself as well as the individuals who receive the bonuses. There are a lot of concerns that have been raised over the weekend about both of these approaches. I have urged a little bit of caution here so we don't do the wrong thing again.

One of the reasons we are in the position we are in is because Congress acted in haste. In fact, when the bill was passed that allowed these bonuses, I don't think very many--if any--of our colleagues knew it was in the legislation. After the fact, we learned that the authorization for the bonuses was in the legislation. But when we act quickly and we don't really know what we are doing, we can make mistakes.

I have suggested there be a hearing in the Senate to answer a lot of the questions the public has been asking. Now, the first question is, Exactly who are these bonuses paid to and why? Is it necessary that these people receive the bonuses in order for the Government to protect its interests in the company it now owns a substantial part of--AIG? Has some of the money been given back? Will more of the money be given back? Is it fair to impose a tax retroactively? In other words, after people have earned the money based upon an expectation that the money will be taxed at regular rates, is there now going to be an extra tax imposed on top of that simply because we don't like what was done? Will it withstand constitutional muster? And perhaps most importantly, how about the Secretary of the Treasury engaging in the authority, which I understand he possesses under the stimulus bill that we passed earlier, to act in the public interest to claw that money back? In other words, is it even necessary for Congress to amend the IRS Code in order for the Secretary of the Treasury to be able to get that money back?

Clearly, this could have all been avoided had the Government asked AIG to renegotiate the contracts when it gave AIG about $30 billion 3 weeks ago. The Government was in a position to say: One of the conditions for receiving this so-called TARP money is that you will renegotiate the contracts that provide bonuses for your employees. We could have done that at that time. But it wasn't done, so now we have to figure out the right way to deal with this.

The other reason I am urging caution was expressed by the President in a ``60 Minutes'' interview that was on television last night. Here is how he answered a question about the constitutionality of this proposed tax law. I am now quoting the President:

Well, I think that as a general proposition you don't want

to be passing laws that are just targeting a handful of

individuals. You want to pass laws that have some broad

applicability. And as a general proposition, I think you

certainly don't want to use the Tax Code to punish people.

I think the President is right about exactly what he said there, and that is one of the reasons there is some doubt about whether this law's constitutionality would be upheld and another reason I think we would be wise to hold hearings. But there is yet another reason, and that has to do with whether the private businesses that have been helped by the so-called TARP legislation will want to continue to receive this money or continue to participate in the public-private partnerships that

have been established by the Government if there is a possibility there is going to be retroactive punitive legislation imposed upon them or their employees.

So one of the things I would like to do is to make sure that in expressing our outrage--and every one of us is outraged about this--we do it in a way that is constructive and not destructive to the very program the President has created to try to help these struggling companies get back on their feet so that they can lend credit to everybody else who needs credit in our country.

There is a significant view that if the folks participating in this program come to believe that the Government--Congress--can at any time come in and impose a new tax on them, they are going to want to get out of these programs rather than participate in them. In fact, there have been strongly expressed views that these banks will try to repay the TARP funds quickly--prematurely, in effect--in order to get out from underneath the Government's potential further involvement in their businesses. Of course, by paying the money back, they reduce their ability to loan money to the rest of us. Obviously, the whole point in giving them the TARP funds in the first place was to give them more liquidity so that they would have the money to lend to businesses, to families, and others throughout America.

Mr. President, I ask unanimous consent to have printed in the Record following my remarks a couple of statements that make this point very clearly. One is an editorial that was in the Washington Post on Friday, March 20, and the other is a very interesting article by Ian Bremmer and Sean West that was printed in the Friday Wall Street Journal.

Mr. President, the ``Washington Gone Wild'' editorial in the Washington Post makes the argument I just made. They use the words ``shortsighted,'' ``opportunistic,'' and ``irresponsible,'' and liken this to the actions of a mob to get even with people rather than stopping to think about what it is going to do to the President's TARP program. And that is what I wish to talk about.

I voted for both the first and second TARP. There were only six Republicans in the Senate who supported that second program, and I did it because I believed it was important for the President and the Secretary of the Treasury to have the necessary funding to help these institutions. We are going to destroy that program if the participants in the program come to believe that, out of spite, Congress, reacting to an angry electorate, will simply come down and pass new tax obligations on the employees of these companies in the future. They are going to be very weary of participating.

As the Washington Post editorial notes:

Elected officials have a responsibility to lead, not just

to pander; to weigh what makes sense for the country, not

just what feels good.

The point is, we now own a big share of this company and parts of some of these other companies, and we want to do what is in their best interest for our best interest and not simply punish them because we are angry that some folks got bonuses.

So I am going to urge my colleagues to take a deep breath here and talk to the administration, to hold a hearing and answer the questions that have been asked here and see whether there isn't a better way to achieve the same result. I just happen to believe that if the Secretary of the Treasury called these folks down to his office and said: You know, for the good of the country, you ought to give half or two-thirds of whatever it is back, and if we can save your company, you will be able to make that money back in no time with a healthy company, and if we don't, it is going to be bad for America--I would appeal to their patriotism. He could also talk to the executives at AIG and ask them to sit down with the same people to renegotiate the contracts. There are other ways, in other words, to accomplish the same result without doing violence to our Tax Code, to the concept of contracts, and that do not raise the question about the constitutionality of this action.

Mr. President, I urge my colleagues to hold a hearing on the bill. Do not bring this bill up before the Senate for a vote this week but discuss it with the administration and see if we can come up with a better solution and resolve this problem in a sensible way that will be good for America.

Exhibit 1

[From the Washington Post, Mar. 20, 2009]

Washington Gone Wild

``Shortsighted,'' ``opportunistic'' and ``irresponsible''

aptly describe the actions of those who fueled the debacle on

Wall Street. They are also apt descriptors for lawmakers more

focused on currying favor with a public outraged at the

bonuses handed out by bailed-out companies than on fixing the

fundamental and still potentially disastrous cracks in the

financial system. By changing the terms of a deal months

after it was entered into, Congress will show the government

to be an unreliable partner, further draining confidence from

the financial system and endangering long-term recovery.

Yesterday, the House had the feel of a mob scene, with

lawmaker after furious lawmaker vying for floor time to rail

against the $165 million in taxpayer-funded bonuses lavished

on employees of American International Group's disgraced

Financial Products division. House members rushed through a

bill to impose an effective tax rate of 90 percent on bonuses

paid to AIG employees and employees of other firms that

accepted at least $5 billion from the Troubled Assets Relief

Program--though when then-Treasury Secretary Henry M. Paulson

Jr. pressed many of those firms to take the funds last fall,

government interference in their compensation systems was not

part of the deal. The legislation, approved by a vote of 328

to 93, would affect employees who received bonuses on or

after Jan. 1 and whose household incomes exceed $250,000.

Late yesterday afternoon, lawmakers on the Senate Finance

Committee introduced their own, broader version of the bonus

clawback that would affect firms that accepted as little as

$100 million of government funds.

We understand that legislators are hearing from furious

constituents, and we understand why those voters are angry.

It is unquestionably galling that some of the employees who

crafted and pushed risky derivatives that wreaked financial

havoc worldwide should line their pockets with some of the

$173 billion in public funds meant to prop up the too-big-to-

fail insurance behemoth and its global business partners. The

bonus anger resonates, too, because of a larger sense many

voters have that the people who helped trigger this whole

economic mess are not the people paying the greatest price.

But elected officials have a responsibility to lead, not

just to pander; to weigh what makes sense for the country,

not just what feels good. The effective confiscation of

legally earned and contractually promised payments may well

be unconstitutional. It is almost certain to be unhelpful.

The bonuses paid at AIG represent less than one-tenth of 1

percent of the bailout provided so far; recouping those funds

will have no discernible fiscal effect. But it will help

drive away the best talent at the firm, and despite all the

glib messages of ``good riddance,'' that is a strange action

for an owner--and the American public now owns AIG--to take.

But the real damage goes well beyond any effect on AIG. The

economy continues to suffer from a shortage of credit. The

government needs financial institutions--including relatively

healthy ones--to take public funds that will then be lent to

responsible businesses and consumers. The Obama

administration reportedly intends in the next week or two to

announce the details of a ``private-public partnership'' to

buy troubled assets from ailing banks. The participation of

private hedge funds, investment banks and other firms will be

key to the plan's success. But what executive in his right

mind will enter into a deal if he or she believes the rules

can be changed six months or one year down the road purely on

the basis of polls and politicians' fears?

Rather than bringing reason to the debate, President Obama

has stoked the anger, and last night, the White House

commented favorably on the House action. Perhaps Mr. Obama

believes that only by lining up with an angry public now can

he persuade it, and Congress, to approve the hundreds of

billions more he will need to right the credit system. But he

might have expressed his sympathy with public anger over

irresponsible behavior in the financial sector while also

steering the government in a more constructive direction. The

absence of backbone on either end of Pennsylvania Avenue this

week could carry a steep price.

Exhibit 2

[From the Wall Street Journal, Mar. 20, 2009]

AIG and ``Political Risk''

(By Ian Bremmer and Sean West)

After quietly tolerating $170 billion in bailout money for

AIG, why have the public, Congress and the administration

suddenly blown up about a tiny fraction of that amount that

is being paid out in retention payments and bonuses? After

all, the AIG bailout channels U.S. taxpayer dollars to

foreign banks and even potentially covers hedge-fund profits.

The reason is one of political expediency: The bonuses

represent greed in the face of dire circumstances, which

resonates with Joe the TARP-funder. The public now has an

Enron-like target on which to unload its collective

frustration about the financial meltdown. While public

outrage is understandable, pandering to it jeopardizes the

administration's credentials in a sloppy attempt to score

populist points. This raises the political risk for all

investors in the U.S. (both domestic and foreign)

significantly.

The financial-sector rescue necessitates unpopular actions

that will only be politically worth it if the administration

actually solves the crisis. Until recently, the Obama

administration had taken pragmatic is slow actions that it

deemed necessary to fend off disaster, as opposed to pursuing

an ideological agenda in how it implements the bailout.

But this week, under pressure to show a strong hand and

positive results, the administration latched onto the AIG

bonus flap as an angle for curring populist favor. When it

became clear that the bonuses were going to be big news,

President Obama led the anti-AIG charge with instructions to

``pursue every legal avenue'' to get the money back. Never

mind that the administration was responsible for the TARP

provision that (sensibly, from a legal standpoint) exempted

pre-existing legal agreements from the bill's limits on

compensation. Mr. Obama now says he'd like to create a new

``resolution authority'' to deal with ``contracts that may be

inappropriate.'' Meanwhile, Congress seems poised to undo the

bonuses through special taxes--a move that in other

circumstances would clearly be labeled retroactive and

unfair.

It was not long ago that Mr. Obama assailed the Bush

administration for its dangerous expansion of executive power

during a complex crisis. The Obama administration's antics

around the AIG bonuses suggest a similar effort to use

political power to contort the law. But rather than doing so

for reasons of national security, this administration is

doing so to pander to an angry public. When the Obama

administration and Congress flex this kind of muscle, they

attach a new political-risk component to all contracts

negotiated in the shadow of the bailout.

That risk may scare potential investors away from bailout

recipients because they cannot trust our government's will in

the face of public outrage. It destroys our moral high ground

the next time Mr. Obama wants to criticize a foreign country

for ignoring the rule of law by nationalizing private assets

or repudiating international debt. It will certainly make Mr.

Obama's task much more difficult when he tries to sell the

public on his administration's ability to manage the rest of

the bailout, and when he tries to sell private firms on the

public-private partnership that will be needed to make the

recovery work.

The administration could have let Congress have its week of

grandstanding over bonuses, while issuing a public statement

acknowledging the bonuses as deplorable, but not important

enough to detract from the real work that lies ahead. The

tragedy here is the extraordinary amount of time that is

being wasted on this issue when the Treasury Department

remains understaffed, a detailed toxic-asset plan remains

perpetually forthcoming, and the economy continues to shed

jobs.

It's predictable that the administration and Congress would

rather abuse an easy target over something every voter can

get mad about than actually confront the hard issues of

managing the financial crisis, including progress on the

``stress test'' of banks and the restoration of normal credit

operations, establishing genuine oversight of the use of

bailout funds, and coordinating international efforts on

global economic stimulus and changes to financial-industry

regulations. That type of governing is far more troublesome,

as it involves making difficult decisions on complex topics

and communicating unpopular news to constituents.

This is a hallmark moment for the administration.

Congressional anger over AIG's bonuses foreshadows the battle

looming if and when the administration asks for more

financial-sector rescue funds. The administration may rightly

sense that failing to join hands with Congress and the public

in outrage over the bonuses would complicate release of those

funds. But Mr. Obama does not need to show solidarity by

diminishing confidence in the rule of law. That bit of

populism will cost the president far more in future

credibility than he stands to gain in present popularity.

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

Madam President, I rise in support of the Coburn amendment because it would eliminate the authorizations for a number of questionable projects. Given the exploding Federal budget deficits, we ought to forgo the millions of taxpayer dollars for such things as the 450th birthday celebration for St. Augustine, FL; a study to determine whether Alexander Hamilton's boyhood estate in St. Croix, Virgin Islands, should be designated as a new part of the National Park System; the maintenance of tropical botanical gardens in Hawaii and Florida; and a shipwreck exploration program. These authorizations are not urgent, have a tenuous Federal nexus, and could divert scarce Federal funds from more important safety and health programs.

Because the amendment eliminates authorizations for such programs, I am compelled to support it even though it would also eliminate a relatively more credible provision in the bill relating to the San Joaquin River Restoration Settlement Act.

The nomination of Elena Kagan to be Solicitor General of the United States is not without controversy. She has a stellar academic record which has been discussed. Following law school, Ms. Kagan served as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals and for Supreme Court Justice Thurgood Marshall. After her clerkships, Ms. Kagan joined the DC law firm Williams and Connolly.

Ms. Kagan left private practice to join the faculty of the University of Chicago Law School. In 1995, Ms. Kagan began her service in the Clinton administration as associate counsel to the President and later as deputy assistant to the President for Domestic Policy. In 1999, she left the White House and returned to legal academia, joining the faculty at Harvard Law School. In 2003, Ms. Kagan was named Dean of Harvard Law School, a role in which she was charged with overseeing every aspect of the institution, academic and non-academic alike.

She is well regarded by those who have followed her career.

I am particularly troubled, however, by two matters. First, Dean Kagan's nomination has rightfully received criticism because of her stance on the Solomon amendment. Dean Kagan joined two briefs concerning the legality of the Solomon amendment, one on an amicus brief to the Third Circuit in support of the appellants, FAIR, in the case FAIR v. Rumsfeld, and the other an amicus brief in support of FAIR when the case reached the Supreme Court. By a vote of 9 to 0, the Supreme Court upheld the Solomon Amendment and rejected the argument presented in the brief that Dean Kagan signed. See Rumsfeld v. FAIR, 547 U.S. 47, 55-57, 2006. Also, I would like to make one comment about Dean Kagan's actions as dean in this case. As Senator Sessions pointed out earlier today, because the case was appealed to the Supreme Court, the Third Circuit stayed enforcement of its decision. Therefore, the Solomon amendment stayed in effect. Dean Kagan acknowledged this in a September 20, 2005, email to the Harvard Law School community, where she admitted that she had barred the military from campus even though no injunction was in place: ``Although the Supreme Court's action [granting review] meant that no injunction applied against the Department of Defense, I reinstated the application of our anti- discrimination policy to the military . . . . as a result, the military did not receive [Office of Career Services] assistance during our spring 2005 recruiting season.'' Thus, Ms. Kagan barred the military from recruiting on campus even though the Solomon amendment remained the law of the land.

Second, I am troubled by Dean Kagan's lack of appellate experience. She has not argued even a single case before the Supreme Court or before any federal or state appellate court. I am quite concerned about her complete lack of appellate advocacy. I am, nevertheless, willing to give her the benefit of the doubt, primarily because of the views of seasoned advocates who know her well and who know the Court well.

All three Solicitors General appointed by President Bush--Ted Olson, Paul Clement, and Greg Garre--signed a letter, January 27, 2009, stating that they ``are confident that Dean Kagan will bring distinction to the office, continue its highest traditions and be a forceful advocate for the United States before the Supreme Court.'' They added, ``[h]er brilliant intellect will be respected by the Justices, and her directness, candor and frank analysis will make her an especially effective advocate.''

Additionally, among her other supporters are two highly respected conservative lawyers who have known Dean Kagan since the beginning of her legal career. The first is Peter Keisler, who served as Acting Attorney General under President Bush and held a number of other top positions in the Bush Justice Department. He clerked on the U.S. Supreme Court with Elena Kagan, and wrote the following in support of her nomination, January 30, 2009: ``[her] combination of strong intellectual capabilities, thoughtful judgment, and her way of dealing respectfully with everybody . . . are . . . among the many reasons she will be a superb Solicitor General, and will represent the government so well before the Court.''

Second, Miguel Estrada has known Elena Kagan since law school. He wrote in support of her nomination, January 23, 2009: ``Having worked as an attorney in the Solicitor General's Office under Solicitors General of both parties, I am also confident that Elena possesses every talent needed to equal the very best among her predecessors.''

I expect a Solicitor General nominated by a President of a different political party to hold views that diverge from my own; but I also expect that nominee to be qualified for the position, able to faithfully execute the responsibilities of the office, and be forthright and honest with members of Congress. She has assured us that her ideology will not interfere with her decisions as Solicitor General. I will closely follow Dean Kagan's tenure as Solicitor General. I will hold her to her commitments.

I would like to make clear that my vote for Dean Kagan is only for the position of Solicitor General, and my vote does not indicate how I would vote for her if she were nominated for any other position, especially a position that is a lifetime appointment. Specifically, according to numerous news accounts, Dean Kagan is expected to be considered for nomination to the Supreme Court if an opening were to occur during the Obama administration. If she were nominated, her performance as Solicitor General would be critical in my evaluation of her suitability for the Supreme Court. My decision whether to support or oppose her would be strongly influenced by the decisions made by her as Solicitor General, such as the cases for which she does and does not seek review, the positions she argues, and the bases for her arguments. If she approaches her job as Solicitor General ideologically or argues inappropriate positions, I will not hesitate to oppose her nomination.

The following Senators are necessarily absent: the Senator from Nevada (Mr. Ensign), the Senator from South Carolina (Mr. Graham), and the

Senator from Mississippi (Mr. Cochran).

Mr. President, reserving the right to object, I don't believe Congress should rush to pass yet another piece of hastily crafted legislation in this very toxic atmosphere, at least without understanding the facts and the potential unintended consequences. Frankly, I think that is how we got into the current mess.

As the chairman of the Finance Committee said last week:

Frankly it was such a rush--we're talking about the

stimulus bill now--to get it passed, I didn't have time and

other conferees didn't have time to address the provisions

that were modified significantly.

I don't know what is in this legislation. Nobody else knows what is in this legislation. There have been no hearings. It seems to me the Banking Committee should have a hearing. The Finance Committee should have a hearing. Obviously, any tax legislation should be vetted through the Finance Committee. I am a member of that committee. We haven't had any meetings to talk about this. Other Senators need time to consider the bill and offer amendments through the regular order through the committee process. More importantly, because of the public interest, the public ought to have the right to review this legislation to make sure it doesn't have any additional loopholes or unintended consequences.

The Baucus bill, as I understand it, is retroactive, not something we ordinarily do with tax policy. It seems to me we ought to have these hearings before we let this legislation come to the body. Therefore, I object.

Mr. President, I would ask for my colleagues' attention for just a moment.

This is a very good amendment. The staff has informed me all the land acquisition under this bill has been accomplished through the cooperation of all parties--willing sellers, willing buyers--and there is no need for condemnation of any property, no need for eminent domain.

Believing that to be true, my colleague has simply said, therefore, there will be no eminent domain used to purchase land under this bill; in other words, no acquisitions contrary to the wishes of the landowner.

Believing the staff is correct, and, therefore, that it is not necessary, it seems to me it establishes a good principle to say that where there is no need for it, we should not authorize eminent domain to acquire land against a landowner's wishes.

Therefore, I urge my colleagues to vote in support of this amendment.

Mr. President, in a recent column for the Washington Post, ``Obama's `Science' Fiction,'' Charles Krauthammer exposes President Obama's efforts to destabilize the delicate balance between moral concerns over destroying embryonic stem cells and advancing medical research that can be universally accepted.

President Obama's recent decision to authorize expanded and seemingly unlimited Federal funding for stem cell research eviscerates the delicate balance forged by President Bush by forcing taxpayers to support embryonic creation and destruction. Mr. Krauthammer observed that some may ``favor moving that moral line to additionally permit the use of spare fertility clinic embryos,'' but ``President Obama replaced it with no line at all. He pointedly left open the creation of cloned and noncloned sperm-and-egg derived--human embryos solely for the purpose of dismemberment and use for parts.'' What is most concerning to me, and what Mr. Krauthammer succinctly exposes, is that President Obama's new embryonic stem cell policy is devoid of any ethical standards or guidelines. President Obama's decision makes the federal government the final arbiter in a moral argument that defies many Americans' core beliefs about the creation of life.

I ask unanimous consent that his column be printed in the Record and I urge my colleagues to consider his thoughtful views.

Madam President, I would like to discuss the legislation before us, the so-called public lands bill and, in particular, four of the amendments that have been offered by Senator Coburn.

I think four of these amendments are--I have not concluded my study of the other two, but four of these amendments I would commend to our colleagues and suggest that at least a couple of these amendments should not deter passage of the bill. If they are adopted by my colleagues--and I think they should be--they are in no way a poison pill. They should not cause the House of Representatives to reject the bill in any way. The bill should go on to the President. So for those who are supportive of the legislation, I think these amendments simply improve the bill, and they are offered, I know, by Senator Coburn for that purpose.

If I could discuss each of these amendments--I am sorry I do not have the numbers for them, but I will describe them briefly.

One is an amendment that would specifically strike out spending in four or five specific areas that are earmarked in the bill. It would save about $25 million. This is symbolic, but $25 million is still a lot of money to some of us anyway.

They are five specific areas: to celebrate St. Augustine's birthday, a party for that purpose; botanical gardens in Hawaii and Florida; salmon restoration in California; Alexander Hamilton's boyhood estate in the Virgin Islands; and something called the Shipwreck Exploration Program.

I am sure the authors of those provisions will come to the floor and describe in detail why these are such important programs and should be included in the legislation, and I will look forward to those explanations. Perhaps they will be persuasive. At this point, without further explanation, they look like the kind of thing that should not be a part of an omnibus bill such as this and could be stricken, as a result of which I am inclined to support my colleague's amendment to save $25 million by striking those particular items.

The next deals with the subject of eminent domain. The Federal Government acquires a great deal of land under this legislation for different purposes, including wilderness areas. There are other provisions to protect other kinds of property short of wilderness areas. The point of Senator Coburn's amendment on the use of eminent domain is to just ensure that in no case is private property being taken against the wishes of the private landowner.

I think we would all agree that if the Government is acquiring a piece of property for a public purpose--let's say for a military base-- the use of eminent domain is appropriate in that case. The Government has to establish that there is no reasonable alternative to the taking of the particular private property, and then if it can establish that, it can take possession of the property and then a trial ensues as to what amount of money is the proper compensation to the owner for the land. That is the usual and appropriate use of eminent domain.

However, we are told that with respect to this legislation, it is not necessary to use eminent domain to acquire land in that way. The reason is because in every case--at least my staff advises me--the land that is owned by private landowners that would become publicly owned under this legislation has the approval of the private landowner. Specifically, a staff report says that:

None of the component parts of the omnibus land bill

anticipate the use of eminent domain, and all land exchanges

and conveyance provisions include willing seller-buyer

provisions, or were advocated by the private landowners in

each specific provision of the bill in which they are

involved.

It is further noted by the staff of the committee that:

Great attention was given to private property rights

issues. They were addressed on a case-by-case basis.

This omnibus bill is comprised of tens or scores of individual bills that were then added together into this one giant omnibus bill. So we are told that:

On a case-by-case basis as to each particular bill, private

property rights were protected and respected. In many

instances, the land designations only affect land that is

already publicly owned so it is not even an issue, and for

those bills that may affect privately owned land, some of the

purchases were actually authorized at the request of the

landowner and some contain language that allows land to be

purchased only from a willing seller.

My point is that apparently, at least according to the minority staff, great attention was taken to ensure that the Government in no case in this bill is taking land against the wishes of the landowner. The point of Senator Coburn's amendment is to ensure that that is the case, that he would prohibit the use of eminent domain for the acquisition of land under the bill. So if it is true, as the staff suggests, that none of this land needs to be acquired by eminent domain, there is absolutely no harm in including the language that prohibits the use of eminent domain. The language in the bill is very brief. I think it is one or two sentences long. In fact, let me read it. It simply says:

Notwithstanding any other provision of this Act or

amendment made by this Act, no land or interest in land other

than access easements shall be acquired under this Act by

eminent domain.

That is it, short and sweet.

The reason I think it is important is that it establishes an important principle: that the Congress will not allow land to be taken against a landowner's wishes for purposes other than the usual purposes for which eminent domain is used, where the Government has to have the property. There is no other alternative, as in a military base, as I said, where you are simply acquiring property because it is a good idea. You want to protect a particular riparian area of a river, for example. What we do there is we acquire that land either by purchasing it from a willing seller or engaging in a land exchange. Those are the two typical ways of accomplishing this--both very appropriate. But it is not a case where the Federal Government has to have the land in the public's interest, as with the military base. So we don't use eminent domain ordinarily in a case such as this.

All Senator Coburn is trying to establish here is that we are not going to change that principle and that the Senate adheres to the principle we have had in the past. We want to establish this precedent and continue to live by it--that eminent domain isn't used in circumstances such as this.

I think that is a worthy amendment, and I think, frankly, if we reject it, it raises a question of why. Why would we want to preserve the right to use eminent domain if apparently there is no reason for us to do so? It, as I said, leaves hanging the question of whether we might use eminent domain in a situation where otherwise it wouldn't be called for.

There is another amendment that I think clearly ought to be approved by my colleagues. I don't know why this hasn't been done--I know it was done a long time ago and it needs to be done again--and that is to simply require a report that details the amount of Federal land we have. This would be a public report that would be done--it would be updated each year, and it would detail Federal land ownership and the cost to maintain that land and the relative percentage of that land to the total, which would be very helpful information.

I understand Senator Coburn has added one other amendment to this because there was a question raised about the fact that some Federal land serves a military purpose or an intelligence purpose which cannot always be disclosed publicly. So, correctly, he provides for a classified annex that would provide the ownership of the lands used for classified purposes. Members who are entitled to see that would be able to see it, but it wouldn't be available to the public generally, and that is frequently the way that classified material is handled. So I think that is a good amendment. There is no reason to oppose this. It is important for us to know how much land the Government owns.

Let me put it this way: You are a landowner. Somebody says, How much

land do you own? You know exactly how much land you own. You know where it is, what it does, how much it costs to own it, what the taxes on it are, and so on. It is important, if the Federal Government is going to be a good steward of both the land and taxpayer money, that it know what it owns--what we own. Do we need it all, would be one of the questions. Are there pieces of land that could be sold? The Government could use the money. Maybe we could dispose of some of this. In fact, there has always been a list of disposable lands owned by the U.S. Government, and frequently we acquire land in trades and so on, and there is a lot of buying and selling going on, and that is perfectly appropriate. So let's have an inventory of what we own and we can make decisions better as to whether some of that land could be sold or whether we need to retain it all, but at least we will know how much it costs to retain it and how much we have.

I think that is a very good amendment. I can't imagine anyone voting against it. And, if it is adopted, it in no way should affect the legislation being passed by the House of Representatives. I know there is an intention that when the bill passes here in the Senate--assuming it does--it would immediately be taken up in the House and would be passed in the House in the form passed by the Senate and then would go to the President for his signature. There is nothing in here requiring a report of Federal lands that would upset that issue.

The final amendment is technical and it may be considered to be a minor matter, but it is an improvement in the law we have. Again, I think it does no damage to the overall piece of legislation--the omnibus lands bill. It corrects a little piece that needs correcting, and here is what it does. We all know that if you take fossils or other valuable artifacts or rocks from a national park, for example, and you collect that or you try to sell it, you are guilty of a very serious crime, and we intend to prosecute people who do that. We have had far too many thefts of valuable things, including fossils, petrified wood, Indian artifacts, and that sort of thing from our Federal lands, and it is important to have legislation that continues to criminalize that. However, if I take my grandkids on a vacation and one of them picks up a rock and brings it home to show his buddies and it may or may not contain--maybe it is a little teeny piece of petrified wood, for example, should he be prosecuted in the same way that a person who is deliberately doing this to sell would be prosecuted?

The law is sufficiently unclear on this. The underlying bill attempts to correct that problem and it comes within one word of correcting it properly. What it says is that the Secretary ``may'' write rules that allow for the casual collection of these items; and that is a good thing, for the Secretary to write rules that provide some exception if a little child happens to pick up a rock and it has theoretically some value to it. In order to ensure that this is done, Senator Coburn simply changes the word ``may'' to ``shall,'' that the Secretary ``shall'' write rules that allow for the casual collection of these kinds of rocks. That makes sure it gets done. It doesn't tell the Secretary what he has to do, how he has to do it, or anything else. The Secretary could theoretically write a rule that says the only time this ever happens is if it is exactly midnight on a Tuesday or something such as that. So we are not telling him he has to make this a widespread thing; we are not saying he should not protect our precious assets--and indeed we want him to--but we do want him to write these rules so that a casual collector would not be penalized under the relatively harsh penalties that exist in the law today, and as I said earlier, appropriately so. It is a technical change. It is a minor chink. It should not cause anyone to not vote for the larger bill if, in fact, the amendment is adopted.

So those are the four amendments. As I say, my colleague has two other amendments and I need to study them more carefully to know whether I will support them, but I urge my colleagues to support these four amendments of Senator Coburn. I think they all make an important contribution to the bill. I am delighted he has been able to offer the amendments. I appreciate the cooperation of the majority leader in agreeing for him to be able to do that.

My understanding is we will continue to debate these amendments this afternoon and this evening and then tomorrow there will be votes on all of these amendments prior to the vote on final passage of the bill, which I think is supposed to occur tomorrow evening, but in any event, in the not too distant future. So I urge my colleagues to consider these amendments.

If you have questions about them, I urge you to talk to Senator Coburn so he can explain in detail what they are and are not intended to do. If you think in any way that they are deficient or need to be modified in some way, approach him with regard to that. I did that last night and he responded to some of my suggestions about, for example, adding the provision in the report that would allow a classified annex for those portions of the land that need to be protected. I am sure he will be willing to listen to folks if they have any concerns about his amendments, but don't vote against them on the theory that you don't care to know what is in them or if there is any change to this bill, it won't pass the House. That is not true. These are important amendments and, in some cases, benign amendments and I think they deserve our attention. I hope my colleagues would be willing to give these their serious consideration when the amendments are voted.

I note the absence of a quorum.

Mr. President, before my colleague leaves the floor, I wonder if he might answer a question, and that is whether some of us on this side of the aisle could also celebrate our colleague, Ted's, appreciation for St. Paddy's Day, if there are any more of those cookies and punch left in the Democratic cloakroom.

I thank my colleague.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.