Floor Statements

Mr. President, today I am pleased to introduce the White Mountain Apache Tribe Water Rights Quantification Act of 2009. The legislation would authorize and confirm the tribe's water settlement and authorize funding for a key drinking water project on the tribe's reservation in northern Arizona--the Miner Flat Dam and Reservoir. The legislation is the product of nearly 3 years of negotiation and the tremendous work of the settlement parties.

On behalf of the tribe, the United States filed substantial claims to water in the Gila River and Little Colorado River General Stream adjudications in Arizona. The settlement of these claims would, among other things, resolve the tribe's claims to water by allocating to it a total annual water right of 52,000 acre-feet per year through a combination of surface water and Central Arizona Project water sources. Without a settlement, resolution of the tribe's claims would take many years, entail great expense, prolong uncertainty concerning the availability of water supplies, and seriously impair the long-term economic well-being of all of the parties to the settlement.

Late last year, the representatives of the non-federal water settlement parties indicated that a settlement was nearly finalized. The parties' representatives expressed their written support for the settlement and indicated that they will be submitting the settlement to their respective governing bodies for review and action. A number of the parties, including the White Mountain Apache Tribe, have already formally approved the settlement.

A major factor driving the settlement is the drinking water needs of the White Mountain Apache Tribe. Currently, a relatively small well field serves the drinking water needs of the majority of the residents on the tribe's reservation, but production from the wells has declined significantly over the last few years. As a result, the tribe has experienced summer drinking water shortages. The tribe is planning to construct a relatively small diversion project on the North Fork of the White River on its reservation this year. It indicates that when the project is completed it will replace most of the lost production from the existing well field, but will not produce enough water to meet the demand of the tribe's growing population. The Miner Flat Project would provide a longterm solution for the tribe's drinking water shortages.

A significant percentage of the water and funding for the White Mountain Apache settlement has already been set aside in legislation I sponsored, the Arizona Water Settlements Act. The Arizona Water Settlements Act, which became law in 2004, settled expensive and lengthy litigation concerning the Gila River Indian Community's rights to Gila River water and other water supplies, and the claims of the Tohono O'odham Nation for damages from groundwater pumping in southern Arizona. It also set aside 67,300 acre-feet of Central Arizona Project, CAP, water per year to resolve Indian water claims in Arizona and established a $250 million fund for future Arizona Indian water settlements.

Under the White Mountain Apache Tribe's settlement legislation, a portion of the CAP water set aside in the Arizona Water Settlements Act will be used to settle the White Mountain Apache Tribe's claims and a portion of the $250 million will be used to construct the Miner Flat Project. While a potential scoring issue exists relating to the use of these funds, I am confident that these issues will be resolved as the legislation progresses.

In sum, not only would the legislation I have introduced today provide certainty to water users in the State of Arizona regarding their future water supplies, it would provide the tribe with a long- term reliable source of drinking water. Therefore, I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed int he Record.

Mr. President, today I am pleased to introduce the White Mountain Apache Tribe Water Rights Quantification Act of 2009. The legislation would authorize and confirm the tribe's water settlement and authorize funding for a key drinking water project on the tribe's reservation in northern Arizona--the Miner Flat Dam and Reservoir. The legislation is the product of nearly 3 years of negotiation and the tremendous work of the settlement parties.

On behalf of the tribe, the United States filed substantial claims to water in the Gila River and Little Colorado River General Stream adjudications in Arizona. The settlement of these claims would, among other things, resolve the tribe's claims to water by allocating to it a total annual water right of 52,000 acre-feet per year through a combination of surface water and Central Arizona Project water sources. Without a settlement, resolution of the tribe's claims would take many years, entail great expense, prolong uncertainty concerning the availability of water supplies, and seriously impair the long-term economic well-being of all of the parties to the settlement.

Late last year, the representatives of the non-federal water settlement parties indicated that a settlement was nearly finalized. The parties' representatives expressed their written support for the settlement and indicated that they will be submitting the settlement to their respective governing bodies for review and action. A number of the parties, including the White Mountain Apache Tribe, have already formally approved the settlement.

A major factor driving the settlement is the drinking water needs of the White Mountain Apache Tribe. Currently, a relatively small well field serves the drinking water needs of the majority of the residents on the tribe's reservation, but production from the wells has declined significantly over the last few years. As a result, the tribe has experienced summer drinking water shortages. The tribe is planning to construct a relatively small diversion project on the North Fork of the White River on its reservation this year. It indicates that when the project is completed it will replace most of the lost production from the existing well field, but will not produce enough water to meet the demand of the tribe's growing population. The Miner Flat Project would provide a longterm solution for the tribe's drinking water shortages.

A significant percentage of the water and funding for the White Mountain Apache settlement has already been set aside in legislation I sponsored, the Arizona Water Settlements Act. The Arizona Water Settlements Act, which became law in 2004, settled expensive and lengthy litigation concerning the Gila River Indian Community's rights to Gila River water and other water supplies, and the claims of the Tohono O'odham Nation for damages from groundwater pumping in southern Arizona. It also set aside 67,300 acre-feet of Central Arizona Project, CAP, water per year to resolve Indian water claims in Arizona and established a $250 million fund for future Arizona Indian water settlements.

Under the White Mountain Apache Tribe's settlement legislation, a portion of the CAP water set aside in the Arizona Water Settlements Act will be used to settle the White Mountain Apache Tribe's claims and a portion of the $250 million will be used to construct the Miner Flat Project. While a potential scoring issue exists relating to the use of these funds, I am confident that these issues will be resolved as the legislation progresses.

In sum, not only would the legislation I have introduced today provide certainty to water users in the State of Arizona regarding their future water supplies, it would provide the tribe with a long- term reliable source of drinking water. Therefore, I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed int he Record.

Mr. President, for nearly half a century, the Equal Pay Act of 1963 and the Civil Rights Act of 1964 have made it clear that discrimination on the basis of sex with regard to compensation paid to women and men for substantially equal work performed in the same establishment is illegal. As do my colleagues on both sides of the aisle, I strongly support both of these antidiscrimination laws.

Unfortunately, some of my colleagues are misleadingly stating in the debate about the legislation pending that it is about pay discrimination. That is not true. The only issue is the length of time of the statute of limitations that will apply in such cases.

In the case Ledbetter v. Goodyear Tire & Rubber Company, the Supreme Court considered the timeliness of the civil rights title VII sex discrimination claim that was based on paycheck disparities between a female plaintiff and her male colleagues. Under title VII, a

plaintiff must file suit within 180 days of the alleged unlawful employment practice. In this case, the plaintiff attempted to argue that each paycheck constituted a new violation of title VII and consequently restarted the 180-day clock. The Supreme Court disagreed with that argument and held that:

A new violation does not occur, and a new charging period

does not commence, upon the occurrence of subsequent

nondiscriminatory acts that entail adverse effects resulting

from past discrimination.

In other words, the Court held that the plaintiff's suit had not been filed in a timely manner since the 180-day statute of limitations had long since passed.

In the Ledbetter case, the Supreme Court restated its support for and the rationale behind a statute of limitations, stating they:

Represent a pervasive legislative judgment that it is

unjust to fail to put the adversary on notice to defend

within a specified period of time and that the right to be

free of stale claims in time comes to prevail over the right

to prosecute them.

In creating a 180-day statute of limitations period, Congress sought to encourage the prompt processing of all employment discrimination cases.

Now, there are some additional commonsense reasons why virtually every criminal and civil law articulates a timeframe within which the charge or the complaint must be filed. The loss of evidence, which is more likely to occur with the passage of time due to loss of documents, cloudier memories, or even death can have a significant impact on the defendant's ability to mount a fair defense in the case.

The other side has raised an interesting point, because information about an individual's paycheck is frequently a private matter, and the idea is, well, there was no way this plaintiff could have known she had, in fact, been discriminated against. So the argument is that there should be in effect no statute of limitations along the lines of the act today of 180 days but, rather, should be tolled with each succeeding check.

While everybody agrees with the argument, the point is there is already an answer to this and it has been in the common law for hundreds of years. It has been in statutory law, and it has been adopted by courts. It is the doctrine of equitable tolling, which essentially is, when you should have become aware of something, that is when the statute begins to run. When an employee did not know and could not be expected to know about certain facts relating to alleged discrimination, then the Equal Employment Opportunity Commission, the EEOC, and the courts may ``toll'' or freeze the running of the clock as it relates to the filing of the deadlines.

In fact, there is a U.S. Supreme Court case square on point called Cada v. Baxter Health Care Corporation in which the Supreme Court clearly established the doctrine of equitable tolling which in the Court's words:

Permits a plaintiff to avoid the bar of the statute of

limitations if, despite all due diligence, he is unable to

obtain vital information bearing on the existence of his

claim.

That has always been the law.

Senator Hutchison has introduced an amendment--an alternative to the bill that is before us--which preserves the balance between an employer's need for certainty with the right of an aggrieved employee to file a valid claim of discrimination. It does this by preserving the existing 180-day filing period for standard claims while offering employees the right to assert claims beyond the filing period in situations where they were unaware of the discrimination or where there were impediments to discovering the discrimination--exactly the allegation in this particular case. In essence, the Hutchison amendment codifies the doctrine of equitable tolling, which is the remedy to the alleged injustice in the Ledbetter holding, and makes sure that such tolling is applied more uniformly.

Unfortunately, the majority legislation goes far beyond the remedy to the particular problem I have just discussed. It arguably provides the greatest expansion of the Civil Rights Act since 1964. It does this in three specific ways. First, it effectively eliminates the statute of limitations, as I said, by imposing this arbitrary paycheck rule which eviscerates the statute of limitations. Second, it expands the class of people who may file a claim by applying the statute to ``affected persons'' without defining what the limitation on affected persons is. So this class expansion would allow not only the aggrieved plaintiff or employee but any spouse, children, or other individuals who might claim to be affected by the discrimination to file a claim. Finally, the expansion would not just apply to sex discrimination but to all protected classes of multiple employment laws covering civil rights, age, disability, and so on. So it is a much broader statute than is being portrayed by some who are simply saying this is about employment discrimination and changing the statute of limitations.

So I wish to stand with all Members of this body who I am sure agree that we need to have laws such as the Civil Rights Act to protect our Nation's citizens. I believe Senator Hutchison's amendment strikes the right balance between the needs of employers for certainty and the need of an aggrieved employee to file a valid claim alleging discrimination. I hope my colleagues will be supportive of the Hutchison amendment as a good-faith attempt to combine these two doctrines and in a way that has already been blessed by the U.S. Supreme Court in the Cada decision.

Mr. President, I yield the floor.

The following Senator is necessarily absent: the Senator from Kentucky (Mr. Bunning).

Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``nay.''

The following Senator is necessarily absent: the Senator from Kentucky (Mr. Bunning).

Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``nay.''

Madam President, I intend to vote against the resolution disapproving the release of the so-called second tranche of funds for the troubled asset relief program, or TARP, albeit with some reservations.

When I first decided to support the TARP last fall, I did so because I believed it was essential to preventing the collapse of our financial markets. I believed we were facing an emergency that would hurt every American unless Congress stepped in to provide temporary assistance to our financial system. I continue to believe this today. The conditions that called for the first one-half of the $700 billion authorized still exist today.

Last fall, credit stopped flowing. The root of the problem, and I think we all agree, is that the banks didn't know if their mortgage- backed securities had value. No one was willing to loan based upon that lack of knowledge. When they stopped lending to each other, they also stopped lending to businesses, large and small, and to ordinary Americans. People couldn't even get a loan for a car or a major appliance, and that condition persists throughout the country today to some degree. We learned very quickly that the dubious business model of Fannie Mae and Freddie Mac to securitize more and more mortgages was causing the entire system of credit and financing to seize up. Every American has been hurt by this market failure.

So the Secretary of the Treasury recommended that a $700 billion investment program that was flexible enough to change with market conditions and that would be focused on addressing the underlying problem in our financial market, namely, these mortgage-backed securities and the Treasury has deployed or committed the first half of the money--$350 billion--and is now asking for the second half. Unfortunately, as I said, the same circumstances that called for the initial $350 billion I believe pertain today.

For the most part, I have supported the Treasury's actions, although I wish that the conditions enabled the banks to be more aggressive in their lending. I don't view the program as a gift to the banking industry because the funds must be paid back with interest.

I did not and do not support their decision to use TARP funds to bail out the automobile industry, a purpose for which it was clearly not intended. I wish to make it clear, I always understood and believe that the full $700 billion would likely be needed to get our credit markets working again. That is why I support giving the Treasury Department the authorization for this second tranche of $350 billion, and it is why I will vote against the resolution to disapprove releasing the funds.

I have had many conversations with officials of the incoming Obama administration, and they promised me and all Republicans, for that matter, that they intend to dedicate the fund to shoring up the financial markets. They promised they will not use the funds to prop up failing companies outside of the remaining commitment to the automobile industry made by the Bush administration, my understanding about $4 billion, and the possibility of debtor possession financing under certain circumstances.

They promised greater transparency and accountability, and I intend to stay in close contact with them to see that these commitments are kept. I know this is not a popular decision, but I believe, in the long run, this program will help to keep our economy from collapsing. It will eventually help it to recover, and that will benefit every Arizonan and every American.

I wish to be clear that I am not asking any of my colleagues to join with me on this vote unless they have concluded, as I have, that we simply did not take a chance that we don't have the financial ability to deal with crises as they develop.

It is, unfortunately, my view that crises will continue to develop in the finance and banking sector of our economy so we are going to need the authority for the next $350 billion.

The following Senator is necessarily absent: the Senator from Kentucky (Mr. Bunning).

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

The following Senator is necessarily absent: the Senator from Kentucky (Mr. Bunning).

Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``nay.''

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

Mr. President, I ask unanimous consent that all the remaining time on the Democratic side be reserved.

Mr. President, I wish to speak briefly about the contest in Minnesota involving the Senate seat currently held by Senator Norm Coleman. Obviously, the other new Members of the Senate were sworn in last week, but this seat remains empty, a winner yet undeclared.

To be clear, under Minnesota law, that is the way it has to be right now because there is an election contest that has been filed in the courts, and under Minnesota law, therefore, neither the Secretary of State nor the Governor can declare the seat filled.

Senator Coleman had been declared the winner on election night and through the ensuing administrative canvassing process. But throughout the following State Canvassing Board stage of the proceedings, there were numerous inconsistencies and problems uncovered, and the board- certified totals were different. They are, obviously, at issue, and they are preliminary.

The Minnesota State Canvassing Board totals, for example, include more votes than voters in a significant number of the Minnesota precincts. So, clearly, there is something wrong, and it has to be resolved by the court.

The Coleman campaign has followed Minnesota election law in filing an election contest, and that comes before a three-judge panel in Minnesota before the end of this month.

The contest is based on significant errors. I wish to mention four of these categories so folks will understand what is at issue.

First is newly discovered ballots which appeared for the first time during the recount and are included in the State Canvassing Board totals.

Second is missing ballots supposedly tallied on election night but which could not be found during the recount process--obviously a problem.

Third is double-counting of duplicate and original ballots of the same voter during the recount process.

Fourth is wrongly rejected absentee ballots and inconsistent standards regarding what constitutes a wrongly rejected absentee ballot applied in different locations throughout the State.

Let me discuss each of these briefly in turn.

On the newly discovered ballots, there are 171 such ballots that appeared without explanation several days after the election in Ramsey County precinct Maplewood P6. Election officials were unable to reconcile the number of votes cast with the number of voters signed in, but the board, nevertheless, included the additional votes in Al Franken's favor in its totals. Furthermore, the board directed that this issue should properly be dealt with during the contest phase, and that, of course, is now occurring.

On the missing ballots, there were 133 ballots in Hennepin County that could not be found during the recount and were declared ``missing,'' despite the fact that there are any number of possible reasons for the change, including the possibility that the ballots never existed in the first place. But instead of following a consistent standard and including the new recount total, the board reverted to election night totals, again resulting in more votes for Al Franken.

On the double-counting, in at least 25 precincts in Minnesota, there are more votes than voters in the Canvassing Board's totals, and there are 150 separate incident logs prepared by local recount officials describing issues involving duplicate and original ballot counting. This is due to the counting of both the voter's original ballot and a duplicate ballot which was created to take the place of the original ballot, resulting in double-counting of some votes when both of those ballots are included in the total. That is, obviously a blatant error and one that threatens the sanctity of ``one person, one vote.'' Obviously, most people get one vote. Those who got more than one vote have an advantage for whom they cast their ballot.

Both the Canvassing Board and the Minnesota Supreme Court directed the issue to be dealt with during the election contest. So that issue is now being dealt with.

Finally, on the category of wrongly rejected absentee ballots, during the recount process, a ``fifth pile'' was created for absentee ballots that were rejected but not because one of the four reasons stipulated by Minnesota election law. This fifth pile was requested

by the Franken campaign at the time they were trailing in the count, and the Canvassing Board granted the request without issuing any direction to ensure consistency among the counties in their review. A vast number of these ballots, which happened to generate more votes for Franken, were included in the Canvassing Board total. However, the board also refused to review over 160 ballots requested by the Coleman campaign.

We can see there are obviously some issues to be resolved. The three- judge panel will be appointed. The campaigns will convene with the panel, set forth the ground rules for the election contest trial, and then that will occur.

There are no stipulations for when the proceedings must be completed, and estimations are, at least from folks in Minnesota, that it could take a month, if not more.

As a part of that context, the Coleman campaign has requested the review of hundreds more ballots that may have been wrongly rejected. Because of the size of the pool of ballots to be reviewed and the erroneous recount totals including questionable votes for Franken, Senator Coleman has expressed confidence that the numbers will revert back to where they were on election night and his lead will be restored and then he would be declared the winner.

Obviously, this is for the Canvassing Board and the court in Minnesota to resolve. It is not for us to prejudge the result at this time. Unfortunately, the majority leader and his staff have publicly stated they would try to seat Al Franken while the contest is still proceeding, despite the fact there is not a signed certificate, which is required of every Senator. This dates back to 1884. This action, of course, was blocked, and we presume the process will continue in regular order to await the result of the proceedings.

It is true Al Franken attempted to declare himself the winner. Yesterday, the campaign requested the Governor and Secretary of State send him a certificate so he could be seated. But it was, of course, not granted because both officials indicated correctly that would directly violate State law.

So we are left with the matter of a vacancy in Minnesota, with the issue to be resolved by the people in Minnesota, properly under their law, the Canvassing Board, and the three-judge court. For my part, I certainly hope this phase will not fall prey to inconsistencies and problems that have led some experts and newspaper editorials to claim the election process needs to be fundamentally reformed. If it is done in the proper way and due care for the evidence that is presented, then hopefully everyone will be satisfied with the result and willing to abide by that result. It will then come to the Senate, and we will seat the appropriate candidate.

The Republicans ask for nothing more. We are certainly hopeful our former colleague and soon-to-be current colleague, Senator Coleman, will resume his seat. But that is for the process in Minnesota to determine, not for that to be determined in some arbitrary way in the Senate.

Mr. President, I would like to speak to two subjects. The first deals with a resolution the Senate unanimously adopted this morning.

Mr. President, today the Senate approved a resolution recognizing the right of Israel to defend itself against terrorist attacks from Gaza and reaffirming the United States' strong support for Israel in its battle with Hamas.

The first thing the resolution does is remind people why the State of Israel had to act.

Israel has had to endure more than 6,300 rocket and mortar attacks on its citizens since it fully withdrew from Gaza in 2005. In fact, the town of Sderot, which is about 3 miles from the border of Gaza, has been suffering for over 8 years from these attacks.

Is there any doubt that if the United States were suffering an attack from just across the border similar to what Israel is facing, that we wouldn't react to stop that from happening? I think there is no question that we would act to stop this terrorism, and this resolution expresses the United States' support of Israel's right to defend itself.

The second point the resolution makes is that there is no equivalency between the terrorist actions of Hamas and the defensive actions of Israel. Israel conducts its military operations to spare innocent life. It has specifically targeted Hamas command centers, security installations, rocket-launching sites, weapons stockpiles, and weapons smuggling tunnels. It has tried very hard to avoid civilian casualties. Hamas, on the other hand, deliberately and maliciously fires rockets into civilian areas from civilian areas, thereby making it more difficult for Israel to target the terrorists and increasing the likelihood of civilian casualties when Israel does take action.

Finally, this resolution speaks to calls for a cease-fire. Many voices in the international community have been heard pleading for an immediate cease-fire, although I think it is instructive that one never hears those voices condemning rocket attacks by Hamas terrorists.

I believe the path to a halt in the violence is clear. A cease-fire is appropriate if, and when, it is durable and sustainable. A precipitous cease-fire, on the other hand, that would allow Hamas to rearm and rebuild its support in Gaza is not acceptable. Hamas cannot be given a cease-fire that only serves to provide it breathing room to regroup and then start firing its rockets and missiles again.

By adopting this resolution, we have said to the Israeli people: ``We stand with you, and we support you in defending yourselves against terrorists.''

In short, the resolution expresses strong support for the defense of Israel by its military action today in the Gaza Strip, the fact that it has been repeatedly attacked by Hamas terrorists from the Gaza Strip, and finally decided that the only way to stop those attacks on its citizens was to go into Gaza and try to remove the weapons and the launching sites and to try to arrest the terrorists who were involved in the launching of those rockets.

This resolution expresses strong support for Israel. It reminds us all why Israel was forced to act. It makes the point that there is no equivalency between the action of the Israelis and the terrorist action of Hamas, which deliberately seeks to harm civilians. Finally, it speaks to the question of a cease-fire, noting that the position of the United States is correctly that a cease-fire could only be supported if it is durable and sustainable; in other words, it ensures that the conditions that created the controversy today are not simply repeated another 6 months from now when the Hamas terrorists have had an opportunity to rearm.

I am pleased the Senate has spoken in such a timely fashion on this important issue. I commend my colleagues for supporting the resolution.

Mr. President, the president-elect spoke to the stimulus package today. The Finance Committee had an informal meeting today to discuss the proposition. Its outlines are still quite vague. There is no specificity to what precisely will go into the stimulus package, but there are some general concepts emerging.

So what I wanted to do today, very briefly, is to outline what I think would be some sensible tests to evaluate what is being proposed, and what it may reveal is that some ideas would not meet these tests and should not be part of a stimulus package. Others would meet the tests and would help to resolve the economic crisis that faces America today.

I think the context we put this in is one in which we have already had some bailouts, and Americans are a little suspicious that some of the money we have committed to these bailouts is going to help--the $200 billion bailout to Fannie Mae and Freddie Mac, the $150 billion bailout of AIG, the insurance company, the $700 billion Troubled Asset Relief Program, the recent $17.4 billion auto bailout, and, by the way, the announcement yesterday was that for the first time in the history of the world the budget deficit of a country--namely, the United States of America--will top $1 trillion. That is over 8 percent of our gross domestic product.

A friend of mine reminded me today--I think it is an interesting bit of trivia--$1 trillion is more money than all the cash in circulation in the world today of the United States of America. All the dollar bills, the ten-dollar bills, the hundred-dollar bills, and all of the quarters, nickles, and all of the other cash of the United States does not equal $1 trillion, and that is how much the deficit is going to be for just this current year. That is a lot of money.

In that context, we have to be very careful about how we spend another $1 trillion or thereabouts to stimulate the economy. The money comes from somewhere, and it either comes from taxpayers directly in the form of increased taxes or it is borrowed and the taxpayers eventually have to pay that back with interest. The interest cost, by the way, is expected to be well over $300 billion. So, as a result, we have to be very careful that we do more good than harm by taking this money away from American taxpayers. The first test obviously is, will it work? Will it stimulate economic growth? That is the test that Larry Summers, an adviser to the President-elect, has stated. In fact, he said, and I am paraphrasing, that investments will be chosen strategically on the basis of which will do the most to spur the economy. So if we have tried something before, and it has not worked, it is a good sign that probably we should not do that.

The reason I say that is we had a stimulus already: the so-called tax rebate. We spent $150 billion on it. The facts are now in. It did not work; it did not stimulate the economy. In fact, only about 12 percent of the money turns out to have been spent. The lesson to be learned in a situation like this is, if you have tried something before and it has not worked, then do not repeat it because it is throwing good money after bad.

The reason it did not work is because when people get a one-time windfall, they tend to save it or to pay bills with it. They spend it if they believe that it is a permanent part of their income forever, more so if it is going to relate to their taxes, we need to ensure that they know that they are going to have permanent tax relief. If it is simply something they believe they are going to have for a year or two, chances are they are not going to spend it. It is not going to do any good.

Another test is, would Government action be better in the private sector or the Government sector? We know in America it is small business and some big business. It is our free enterprise system that creates jobs, that creates economic growth. The Government cannot create economic growth.

In fact, when the Government gets involved, there is more potential to do harm than good. We can tax them, we can regulate them. Usually, it does not do them any good. Sometimes you can do things to help business. Usually, you do it in a way that helps with their tax burden. There are some good ideas that I have heard discussed that would, by making it more tax friendly to invest in certain kinds of equipment, for example, or to hire more people, if we knew that would stimulate an economic activity, that those kind of activities would be very useful.

But frequently when we spend Government money, in this case, for example, potentially creating 600,000 new Government jobs, remember we are taking that money out of the private sector, and it is likely to do less good in the public sector than it would if we left it in the private sector.

In fact, a couple of economists with whom we spoke yesterday noted that

even in a recession business gets a 4 to 5 percent return on its investment. The real test should be, if the money is spent in the Government sector, will we get at least that return on the investment that we are making? If we do not, we should leave that money in the private sector so the private sector can get that return on that investment and therefore generate more economic activity in our private enterprise system.

Another question is whether the new Government spending replaces State and local spending. My understanding is there is a big chunk of money to go to State and local governments. Now they have gotten themselves into a pickle because a lot of them have big budget deficits this year. They are going to constrict what they spend money on as well or they are going to have to raise taxes or fees or find some other way to balance their budgets.

But they obviously would like for the Federal Government to bail them out. Well, obviously before the Federal Government considers doing that, the first question is, Are you going to correct what has created the deficiency in the first place or are we simply going to save your bacon then you do not have to do anything to change your ways. Are you going to reduce your spending? For example, are you going to spend the money anyway?

People are talking about shovel-ready projects. There are a lot of shovel-ready projects at the State level for roads or highways or whatever, and they are called shovel-ready because the State is prepared to do them. Well, if the State is going to do them anyway, then clearly the Federal Government paying for it is not going to create any new jobs. It is not going to stimulate economic growth in any way, even though it might produce a new bridge or a new highway that is useful to the people in that State. So since our goal is to stimulate new economic activity, we must ask whether the spending will really create new economic activity or merely replace something at the State level that would occur anyway.

The penultimate question is, Is it worth doing? We have to ask the taxpayers from whom we are getting money whether an investment is worth undertaking at all. For example, one of the things that would be on an infrastructure to-do list was a mob museum in Las Vegas; there was a snowmaking venture in Minnesota. Are these the kind of investments that American taxpayers believe are warranted under any circumstances?

There are a lot of investments the Federal Government can make that are worthwhile. For example, clearly we have used a lot of military equipment that needs to be replaced. There are good jobs throughout this country producing military equipment. We need to add personnel to our military. I think there is a general consensus to do that. That will cost money. That will obviously create jobs.

So those are activities that are needed, are worthwhile, are job creating, and clearly would help our country, potentially being much more worthwhile than, like I say, a mob museum or some kind of snowmaking equipment.

Then, finally, I think there is one final test that we might talk about. In view of the huge deficit we have, should we make the deficit worse? This is a cost-benefit analysis. This is clearly going to be added to the deficit. So the question is, How much more deficit can we pile on without having adverse consequences in the immediate and long- term? We might stimulate the economy over the next 3 or 4 months, but if we are creating a huge hole to dig out of 3 or 4 years from now, we have to ask, Is it really going to be worth it.

So when we evaluate the different proposals, we have to ask whether it is going to be worth it to have this large a deficit, twice the $1.2 trillion of this coming year. One thought in this regard is this: When we lower tax rates, we know it helps people. It helps small business create jobs. That is what you do in a recession. You try to help people by letting them keep more of their money so they can spend it and help get us out of the recession.

Permanent tax cuts are the way to do that. The permanent tax cut obviously may or may not reduce revenue to the Treasury. The right kind of tax cuts can actually produce more revenue to the Treasury, but increased spending, there is no way around it, loses money to the Treasury. It puts you in a deeper hole. So as between the potential relief from taxes, leaving more money in the private sector, which is eventually going to create the jobs to get us out of the recession, or having the Government spend more money and creating a larger deficit that way, it is a test that I think we need to be very clear about, from my mind.

While I am willing to help do things to stimulate economic activity in the short term, I am not willing to ignore long-term consequences of a deficit the size that would be created by the kind of spending we are talking about.

If we apply the right kind of tests--and they are sensible. They are not Republican or Democratic tests; they are obviously tests that any prudent person would ask before spending this kind of money--I think that will help us better evaluate the kind of economic stimulus package we can actually support in the Senate. It will be the kind of analysis our taxpaying constituents expect of us when, in view of all of the other things that have been done to bail out various aspects of our economy, with the kind of trillion-dollar-plus deficit we are looking at, they want us to engage in, they want us to be prudent.

They have had their fill of wasteful Washington spending. They want us to be very careful about what we do with their money in the future. I hope as we engage this debate in the future--we will have plenty of time to talk about it, debate it, think about it, to analyze it and I am not suggesting we try to slow-walk it, but in trying to move quickly we nevertheless take the time to perform the kind of analysis I have talked about.

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

Mr. President, would it be in order for me, before I begin my remarks, to compliment the Presiding Officer for his nomination to be Cabinet Secretary, the Secretary of the Interior, and wish him very well before the Senate in being confirmed and serving in that position? I guess that question doesn't need a response. I certainly hope it is in line for me to be able to say that.

Mr. President, I hope--and I am joined here by Senator Lieberman--that the Senate will have an opportunity to consider before this week is out a resolution we believe has been drafted by the majority leader and the minority leader that deals with the ongoing war in the Gaza Strip and that we believe needs to express the will of the Senate. We believe as well that a similar resolution would be voted on in the House of Representatives to express the will of the House. So then the whole world--and certainly the administration--would know of this body's strong support for the State of Israel and our support for the actions Israel is taking right now. We hope that vote can occur before this week is out. I wish to commend Senator Lieberman for his considerable leadership on this issue.

We support this resolution. The first thing the resolution does is to remind people why the State of Israel had to act.

Last February, on a trip to the Middle East, I visited the Israeli town of Sderot, which is about 3 miles from the border of Gaza, and I learned from the town's mayor of the toll taken on the residents of this town and neighboring cities from more than 8 years of rocket attacks by the Hamas terrorists. At the police station, I saw rack after rack of these spent rockets, the remains of the rockets that had been launched by Hamas against the civilian population of this city. In fact, about 15 minutes after we departed the city, one of these Hamas launched a Qassam rocket--identical to the hundreds we had seen at the police station--which fell on an Israeli home in town, destroying it. Thankfully, no one in that attack was harmed.

Is there any doubt that if the United States were suffering an attack from just across the border similar to this, that we wouldn't react to stop that from happening? I think there is no question that we would act to stop this terrorism. It is our hope that the resolution would express our acknowledgment that a nation has the right to defend itself, that Israel has had to respond to this, to more than 6,300 rocket and mortar attacks on its citizens since it fully withdrew from Gaza in the year 2005. In fact, this town has been suffering for over 8 years from these attacks.

The second point the resolution makes is that there is no equivalency between the actions of Hamas and Israel in this case. Israel conducts its military operations to spare innocent life. They have specifically targeted Hamas command centers and security installations and rocket- launching sites, weapons stockpiles, and weapons smuggling tunnels. They have tried very hard to avoid civilian casualties. In fact, Israel has transmitted very specific warnings to Gazans. They have dropped leaflets and made phone calls to targeted areas to warn citizens to leave because an attack is imminent. This, of course, even means they lose the element of surprise and potentially put the lives of Israeli soldiers at risk. But Israel believes it is important where possible to avoid jeopardizing innocent life--quite the opposite from Hamas, which deliberately and cynically fires rockets from civilian areas to make it more difficult for Israel to target the terrorists and to increase the likelihood of civilian casualties when Israel does take action.

Hamas has ignored a plea by U.N. Secretary General Ban Ki-moon on April 28 that:

Civilian areas in Gaza should not be used as a base from

which to launch its actions against Israel.

Dozens of mosques in Gaza have been turned into weapons storage facilities and Hamas command centers. In fact, an airstrike on a mosque in the Tel El Hawa neighborhood of Gaza City last Wednesday set off numerous secondary explosions caused by the arms that had been stockpiled in the mosque.

Finally, Hamas openly admits that it uses women and children as human shields. A leading member of Hamas told Al-Aqsa TV on February 29, 2008:

For the Palestinian people, death has become an industry .

. . This is why they have formed human shields of the women,

the children, the elderly, and the mujahedeen, in order to

challenge the Zionist bombing machine.

While targeting terrorists, Israel works to avoid a humanitarian crisis for ordinary Gazans as well. During the first week of Israel's operations, it facilitated the delivery to Gaza of 400 trucks loaded with more than 2,000 tons of food and medicine. This is not easy when you are in the middle of military operations. Ten ambulances and two thousand blood units were transferred to Gaza just in that week. More than 80 Palestinians have entered Egypt for treatment, in addition to a dozen or more who have entered Israel. On January 5, more than 93,000 gallons of industrial diesel fuel and gasoline for vehicles was transferred into Gaza from a fuel depot in Israel. By the way, that fuel depot comes under constant attack from terrorists in Gaza, as does the place where the electricity is generated for Gaza, which, of course, makes absolutely no sense.

Finally, this resolution speaks to calls for a cease-fire. Many voices in the so-called international community have been heard pleading for an immediate cease-fire, although I think it is instructive that one never hears those voices condemning rocket attacks by Hamas terrorists.

I believe the path to a halt in the violence is clear. A cease-fire is appropriate if and when it is durable and sustainable. A cease-fire, on the other hand, that would allow Hamas to rearm and rebuild its support in Gaza is, of course, not acceptable. Hamas cannot be given a cease-fire that only serves to provide it breathing room to regroup and then a month or 2 months or 3 months from now start firing its rockets and missiles again.

The United Nations could play a constructive role, but it must resist the temptation that it all too often falls into, and that is that of moral equivalency. I point to the press statement of the Security Council on December 28 which, among other things, said the parties should ``stop immediately all military activities.'' This is dangerous moral equivalency. Only one party to the violence carries out ``military activities.'' The other party--Hamas--terrorizes and murders innocent people. That is why the only Security Council resolution that could be acceptable in this situation--and I say this with the understanding that the Security Council is meeting as we meet here today--is one that affirms Israel's right to defend itself and calls on Hamas to immediately stop its terrorist activity.

I add that a Security Council resolution should look to all of those who support Hamas--primarily and most significantly Iran. For years, Iran has been the source of money, training--including training at the facilities of the Islamic Revolutionary Guard Corps in Iran itself--and weapons to Hamas. Hamas's relationship with Iran is so close that the Egyptian President said this past May that Hamas rule in Gaza means that Egypt has a ``border with Iran.''

Since Israel launched its military operation against Hamas, Iran has announced stepped-up arms shipments. Senior Iranian clerics have organized recruiting drives to send Iranians to Hamas's aid. Just yesterday, a senior Iranian cleric announced that it had recruited 7,000 Iranians to join the cause of Hamas. Yet the international community has taken no action to counter Iran's support of Hamas terrorists.

A U.N. Security Council resolution sanctioning Iran for its assistance to Hamas would send an important message and would be a good place to start, as would unilateral sanctions by the United States.

Let me conclude by quoting the Washington Post columnist Charles Krauthammer, who recently wrote one of the most precise and succinct observations on the situation in Gaza that I have read. He wrote:

Some geopolitical conflicts are morally complicated. The

Israel-Gaza war is not. It possesses a moral clarity not only

rare, but excruciating.

The Reid-McConnell resolution we expect to be introduced shortly will be an important reaffirmation of the bond between Israel and the United States. It is one forged on the basis of common values and the tragically shared experience of terrorism. By passing this resolution, we are saying to the Israeli people: We stand with you, and we support you in defending yourselves against terrorist attacks.

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

Mr. President, I want to speak for just a moment about the comments that Senator Specter made earlier about the process for considering the nomination of Eric Holder as Attorney General.

The Republican members of the Judiciary Committee have been seeking information and doing work to prepare for the hearing. But there is a great deal of information that is not yet available and a great deal of information that hasn't yet been reviewed, all to the point that it is going to take a little bit of time to prepare for the hearing in order to do it right. Of course, we want to do it right.

While there is absolutely no desire on anyone's part to slow a process down or filibuster or in any other way make it difficult for the orderly process to unfold for the confirmation of the nominee of the President, we do ask that we be accorded the same consideration that was given to others in this situation and that there be adequate time to confirm him. I see no reason, if he is qualified and if he is confirmed, that he could not take office very soon after the President himself takes office, perhaps as early as a week or two after that. So nobody is talking about a long delay, but we do need to have adequate time.

In that regard, since the chairman of the Judiciary Committee has indicated he would like to begin holding hearings on January 8, which is literally right after we begin the swearing in of the new Members and the beginning of the next session, there is not adequate time for the kinds of things that have to be done if that is the date that we meet. This has been conveyed to the chairman by Senator Specter. He has asked for a reasonable amount of time to get prepared. I hope that can be accommodated. It is of sufficient concern that several of us have indicated, through a letter to the chairman, that we are going to insist on having adequate time for the consideration of his nomination.

I remember the nomination of John Ashcroft who was a colleague of everyone here, a Senator from Missouri, when he was nominated to become the Attorney General; nevertheless, it took 4 days of hearings for the Senate to decide to confirm him. His hearings began on Tuesday, January 16. As I said, they lasted for 4 days. The chairman of the committee has, as I said, indicated that the Holder hearings would be scheduled for January 8, more than a week earlier. I don't think that is adequate for the things we have to do. Ashcroft was voted on by the full committee on January 30. He was confirmed on February 1. So that timing certainly would be totally appropriate for nominee Holder and would not in any way delay the administration with respect to the office of the Attorney General. In fact, irony of ironies, because Senator Ashcroft was not confirmed until February 1, Eric Holder himself, who was in charge at the end of the Clinton administration, served as Acting Attorney General at the beginning of the Bush administration. Senator Specter, when he was chairman, accommodated numerous requests for sufficient time on the part of the then-ranking Democrat, Senator Leahy, on, for example, the nominees of Chief Justice Roberts and Justice Alito. I think reciprocation would be in order.

Right now, we don't even have Eric Holder's questionnaire or FBI background investigation, all of which are necessary to prepare for the hearing.

Senator Specter noted that we currently have 86 boxes of archived committee documents relating to Mr. Holder's tenure at the Justice Department to review. There are additional documents that have been sought from the Department of Justice and the Clinton library which would provide additional information that we will need to examine.

One might say this is a lot of work to do for a nominee. Bear in mind, this is the Attorney General of the United States, an individual who has some controversy in his past. I don't know whether this controversy is sufficient to suggest that he should not be confirmed, but that is what the investigation and hearings, of course, are all about. We are familiar with what these items are.

Mr. Holder was involved in the pardons of members of the FALN organization by President Clinton, the pardons of Marc Rich, Pincus Green, Susan Rosenberg, and Linda Sue Evans. He was also involved in a controversial raid in Miami by the Border Patrol action to take Elian Gonzales into custody. He was involved in death penalty approvals, rejections, or disputes. One that troubles me--and I want to get to the bottom of this--was the decision of the Department of Justice not to defend the power of Congress to enact a particular statute, 18 U.S.C 3501. There was Supreme Court litigation called Dickerson v. United States, including Department of Justice responses to Judiciary Committee inquiries on the subject and views of U.S. attorneys and Department advisory panels on the matter. The case involved challenging Miranda doctrine. Paul Cassell, a competent attorney, argued that case. The Justice Department, contrary to precedent and tradition, didn't defend the Government's position; that is to say, the Congress having passed a statute and defended the power of Congress to enact that statute.

I don't know whether any of those controversial matters are enough to reject the nominee, but they are well known, controversial, and I think we have an obligation to look into all of these matters. I am not alone. Richard Cohen wrote in the Washington Post that Eric Holder should not be the Attorney General. I don't know whether he is right or not, but the questions he raises need to be examined.

Glenn Greenwald wrote in the Salon magazine that Holder's involvement with the Rich pardon was ``substantial, continuous, and concerted, much, much more than `peripheral,' '' which is the way Holder himself described it.

One final note. In addition to having plenty of time to review and prepare and review documents and the FBI interviews and background checks of Eric Holder and prepare for his hearings, we will want to have sufficient time also to carefully consider other top Department of Justice nominees, such as the Deputy Attorney General, Associate Attorney General, Solicitor General, and the heads of the Office of Legal Counsel, the Criminal Division, the Civil Rights Division, and the National Security Division.

I hope if we set the right precedent with the Attorney General himself, these other matters will be considered in due time and we won't have to argue each time there is an insufficient opportunity to conduct the kind of examination that would be necessary for positions as important as these.

So I hope our colleague, the chairman of the committee, will reconsider his initial decision to schedule the hearings on January 8. If we can move those back even a week, that would provide time for us to conduct the process properly. We are not asking for some outrageous delay just for the sake of delay. I hope he can accommodate us, and knowing of the views of the other members of the committee on the Republican side, that he would be willing to do so.

I suggest the absence of a quorum.