Floor Statements

Mr. President, I am here today to pay respects to Senator Byrd, whose desk is now adorned with a black cloth and flowers. I know we will all long remember Monday as the day we received some very sad news, for on that day, as the morning began, we each learned in our own way that our good friend and colleague Robert Byrd had passed away just a few hours earlier. It should not have been a sudden shock. We all had time to prepare for this moment. We knew he had been having a period of ill health, but it still seemed as if he would be here forever. That is the kind of man Robert Byrd was.

A man of great gifts, he loved the written word and could recite his favorite poems from memory--at length. It was amazing how many speeches, reflections, and famous quotations were there at his command, in his quiver, ever ready and waiting for him to recite so he could emphasize an important point about an issue that needed to be made. That is the kind of man Robert Byrd was.

While it is true he was the longest serving Member of Congress in history, he was so much more than that. He was the historian of the Senate who knew more about our roots as a legislative body than anyone else. He was a master legislative craftsman, and whenever he spoke, we all listened carefully to see what he had to say about the matter we had taken up for deliberation. That is the kind of man Robert Byrd was.

No one had more respect and regard for the Senate and our legislative traditions and procedures than he did. He knew the rules, he knew why they were crafted that way, and he knew how to make good use of them to further the agenda he believed to be in the best interests of the people of our Nation. Once again, that is the kind of man Robert Byrd was. That is why it is so difficult to sum up his life in just a few well-chosen words.

There is no greater tribute we can pay to Robert Byrd than for the spirit of friendship and camaraderie, which were staples of his Senate service, to bring us all to the Senate floor to express our regrets and send our condolences to his family. It will also give us a chance to share our memories of someone we will never forget.

I will always remember the orientation he organized for the incoming class of new Senators each session for as long as he was able. Besides a strong historical welcome, he presented each of us with one volume of his four-volume history of the Senate. If we read it and were able to answer questions about it, then--and only then--would

we get the other three volumes. I remember asking him how he wrote them. He said he presented all of it as a series of floor speeches delivered without any notes, with most corrections made simply to clear up what the floor reporters thought they heard. He had a photographic memory, and that made it all possible. Perhaps it came from his years of study of the violin. In any event, it made him a better speaker because he spoke slowly and deliberately, carefully editing his sentences as he spoke. His style created a natural bond between himself and the listener, and that is what made him such a styled and gifted communicator.

It may be a cliche, but he was a southern gentleman through and through. He had no tolerance for any rude or impolite conduct on the floor. He instructed and expected all of us to be courteous and respectful--not because of politics but because of the great institution of which we are a part. He knew what a great honor and a privilege it is to serve in the Senate, and he expected everyone else to realize it as well and to act accordingly.

When you presided over the Senate, he expected you to pay attention to each speaker. Sometimes, the Presiding Officer is the only one in the Chamber. There was a time when there was a telephone under the Presiding Officer's desk. As the story goes, Senator Byrd was speaking when the phone under the desk rang. When the Presiding Officer answered it, Senator Byrd made sure to make him aware of the importance of courtesy in such a situation. The Presiding Officer then said: ``Senator Byrd, the phone is for you.'' That is when the phone was taken out and a rule went into effect that no electronic devices were to be used on the Senate floor.

Then there were his special speeches. He always commemorated each holiday the evening before a recess would begin. Each speech was very poetic and, in fact, usually had some poem he had memorized years before that would come to mind and be recited from memory. He was good at it, so good that we looked forward to his poetic observations on the passing of time.

That unique speaking style of his also helped him to build a good relationship with our pages. His ``going away'' speech for each graduating class often left many of them in tears. Their fondness for him only grew when they learned that if the Senate was in session after 10 p.m., they had no early morning classes the next day. They were always delighted, therefore, when the hour grew late and Senator Byrd rose to speak. They knew he could easily add the 10 or 15 or even 30 minutes needed to get them past 10 o'clock and a welcome reprieve from the early morning classes.

My favorite speech Senator Byrd gave happened when I was presiding. Over the previous weekend, he had visited some of his grandkids and asked about their studies. He was a firm believer in education and was an example of lifelong learning himself. One of his grandkids had shared a math experience with him. He was so surprised, he asked to see the math book. He brought the book to the floor to read parts of it to us. He was distressed at how math had migrated into a social textbook. He pointed out that you had to get to page 187 to find anything that resembled the math he had learned. The parts prior to that were social discourse. Anyone who heard the speech would remember his indignation.

I remember being at an interparliamentary trip held in West Virginia hosting the British Parliament. We went to a mountain retreat for dinner. Senator Byrd welcomed them and then got out his violin and shared some fiddle music he thought was appropriate for the occasion. He was very good.

Senator Byrd was an expert on the rules of the Senate. At our orientation, he encouraged us to learn the rules. Because of his encouragement and as a way to learn the rules, I volunteered often to chair the Senate floor. Following his instructions, I brought a list of questions with me since during the quorum calls you can ask questions of the captive-audience Parliamentarian.

I once saw a Senator come to the floor to debate an amendment, and Senator Byrd was there to debate against it. The Senator wanted to revise his amendment. For half an hour, the Senator tried different tactics to change his amendment, and Senator Byrd thwarted every attempt. The Senator was frustrated. He asked for a quorum call, and he left the floor.

At that point, I asked the Parliamentarian if there was any way the Senator could have changed his amendment. The Parliamentarian explained that all he had to do was declare his right to revise his amendment. I asked why the Parliamentarian did not tell him that. What I learned is the Parliamentarian can only give advice when asked. My first stop at the Senate floor often is at the Parliamentarian as a result.

During much of Senator Byrd's career, he was either the chairman of the Appropriations Committee or the ranking member. He was very good about taking care of orphan miners. Those are primarily coal miners whose companies have gone out of business owing benefits. After a couple of lessons from the Senator, I worked with him to take care of the orphan miner health problem in a bill that speeded up mine reclamation in many States, extended an expiring tax on coal companies with their guarded permission, and then released impounded trust fund money promised by law to the States for the impacts the States put up to produce the Nation's energy, as well as take care of the orphan miners.

At another time, Senator Isakson and I worked with Senators Byrd, Rockefeller, and Kennedy to make the first changes in mine safety law in 28 years. He was very proud of the difference he was able to make in the lives of coal miners back home, and he never forgot them whenever we were debating an issue that might have an impact on their lives.

In the days and weeks to come, I can think of no greater compliment we could pay another Senator or greater tribute we can pay to Senator Byrd than to watch someone in action on the Senate floor who develops and implements a well-drawn strategy and say: That is the way Robert Byrd would have done it.

For my part, I will always remember the great love Senator Byrd had for our Constitution. I do not think anyone knew it better or more detailed than he did. When I was mayor of Gillette, I began a habit of carrying around a copy of the Constitution with me. I discovered that a lot of us knew what it said but not too many of us had a grasp for the details. It had a lot of meaning for me right from the start because it represents the blueprint from which our Nation and system of government were constructed. Then when I came to the Senate, I came to know the Constitution in a completely different way. It was now my job description, as Senator Byrd put it. So I always kept it handy.

I have no doubt that Senator Byrd had a similar reaction years before my own. I am sure he knew the better he understood our Constitution and the procedures of the Senate, the more effective he would be as a Senator. He knew the importance of understanding the rules of our legislative process in every detail. The better he became at mastering the process by which our laws were made, the better he knew he would be at producing the outcome he was committed to achieving for the people of West Virginia and the Nation. I am sure that is why he always carried a copy with him.

The line-item veto was passed before I got to the Senate, but Senator Byrd had sued to have it stricken. Most of his Senate career had been as chairman of the Appropriations Committee or the ranking member. He pointed out that Congress, according to the Constitution, is supposed to make spending decisions, not the President. He always pointed out that we do not work for the President of the United States; we work with the President as a separate but equal branch of government. He would guard us against infringement by the President using the third branch of government, and he was successful.

Although his life was marked by many triumphs, he was not without his personal tragedies. I have always believed that the work we do begins at home, and that is why I will never forget the strength of his marriage and what a tremendous loss it was for him when his wife passed away. No one knew Robert Byrd better than she did, and without her by his side life became ever more difficult. His health began to fail.

I remember going to his wife's funeral. It was very well done. When my wife and I were on our way home, we commented that the endearing and astounding thing about the funeral was that it was about her. He made sure her achievements, her family, her efforts and successes were the focus. As famous as Senator Byrd was, the comments that were made that day were about her and not about him. That says a lot about the relationship they had.

Although his health was declining, he was here as often as he was able, an active part of the day-to-day workings of the Senate. He would not and could not take it easy, no matter what anyone told him. His heart was in the Senate; his soul was in West Virginia. To stop what he loved to do was for him and the people back home unthinkable.

One of Senator Byrd's favorite quotations comes to mind today. He loved the Bible and quoted from it often. When going through a difficult time in his life, he remembered the words from the Book of Ecclesiastes:

To everything there is a season and a time for every

purpose under heaven.

Now Senator Byrd has come to another time, as he has reached the end of his seasons on God's green Earth. He will be greatly missed, and he will never be forgotten.

I cannot conclude my remarks without paying a final tribute to Senator Byrd by recalling his love of poetry and the written word. We can all remember the way he would enjoy sharing a favorite verse with us, much like this one. Although the author is unknown, I am certain Senator Byrd would not only recall it but know it well:

Life is but a stopping place,

A pause in what's to be,

A resting place along the road,

To sweet eternity.

We all have different journeys,

Different paths along the way,

We all were meant to learn some things,

But never meant to stay.

Our destination is a place,

Far greater than we know.

For some the journey's quicker,

For some the journey's slow.

And when the journey finally ends,

We'll claim a great reward,

And find an everlasting peace,

Together with the Lord.

My wife Diana joins in sending our heartfelt sympathy to his family and many friends and for all the people who worked for him and with him over the years. We will miss him--the knowledge he had, the institutional memory he had, the experiences and history he had been a part of and in many instances was the main participant--the leader. Probably only once in the history of a country does someone like this come along. If he were here, he would deny it but be pleased if we noted the similarity of what he had done to what had been done in the ancient Roman Senate about which he often talked.

In the end for Senator Byrd it was never about how much time he spent in the Senate or on Earth but how well he used the time he was given.

I yield the floor.

Mr. President, I ask unanimous consent that Spencer Suffling and Casey O'Neill of Senator Bingaman's office be granted the privilege of the floor for today, June 29, 2010.

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

Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business until 5 p.m. with the time equally divided between the two leaders or their designees, with Senators permitted to speak for up to 10 minutes each.

Mr. President, the Reid-Baucus tax extenders bill before the Senate includes several provisions that, to my knowledge, have never been vetted by congressional tax writers either in the Senate Finance Committee or in the House Ways and Means Committee. As an accountant with practical expertise in tax matters, this disturbs me greatly. It should also disturb the small business owners because there is a provision in this bill that would slap them in the face with a 15- percent tax increase. I am talking about the provision that would apply a 15.3-percent self-employment tax to the distributions of certain subchapter S corporations. Those are the small business corporations. This self-employment tax would apply when 80 percent of the gross income of the small business is attributable to three or fewer professionals in a professional services corporation. We are talking about the smallest of the small businesses.

This is a $9.1 billion hit on a small subset of small businesses engaged in a service trade. I wonder, the next time an offset is needed, will the Senate go after all the small businesses, changing the Tax Code this same way?

My colleagues on the other side of the aisle call this a ``loophole closer'' or an ``anti-fraud provision.'' I assure my colleagues this is neither. These words are convenient labels my colleagues use to defend tax-and-spend policies. The small business corporation provision is, however, a massive tax increase on small business.

This new payroll tax on nonwage income would hurt the ability of small businesses to reinvest and to create jobs. At nearly 10 percent unemployment, I don't think the Federal Government is in any position to pursue job-killing tax increases. Small businesses are the lifeblood of our economy. It is imperative that we nurture their growth, not hinder it, so they can create jobs and get our economy back on track.

None of us is in favor of fraud, but that is not really what we are talking about.

If the IRS wants to improve compliance with the self-employment tax, they have the right tools. They just need to use them. For example, the IRS Revenue Ruling 74-44 that specifically addresses the tax treatment of dividends in lieu of compensation gives them all they need.

I ask unanimous consent to have the IRS revenue ruling printed in the Record following my statement.

I also have pages and pages of case law of which the IRS has successfully litigated the issue of dividends in lieu of compensation and the applicability of employment taxes.

Plus, Congress has codified the economic substance doctrine which says a transaction must have an economic purpose aside from the reduction of tax liability in order to be considered valid. In my opinion, this is the IRS's ace-in-the-hole card. The IRS can close any loophole--real or imagined--with the power of the new law.

Why can't the IRS do its job with the volumes of legislative regulatory and judicial tools it already has? For example, the IRS revenue ruling could be codified somehow, but then it wouldn't provide an offset for new programs, would it? Nor would it permit my colleagues across the aisle to reduce the tax on venture capitalists for their carried interest. I don't like the carried

interest provision, but to soften the impact of that policy on the backs of small businesses is just plain wrong.

Even the Government Accountability Office agrees the IRS should be doing more with what it has to crack down on fraud. In a 2009 report, the GAO stated: ``IRS efforts to enforce the rules on paying adequate wage compensation to small business shareholders have been limited,'' and the IRS provides only ``limited guidance in determining adequate compensation'' guidelines for taxpayers.

A 2002 report by the Treasury's inspector general found that ``IRS agents did not always address officer compensation, even when little or no compensation was paid.''

Clearly, the IRS isn't doing its job. That is the loophole. The IRS can and should do more with what they already have.

As a former accountant, I find this small business corporation payroll tax totally unworkable. For example, the tax would apply when 80 percent or more of gross income of the S corporation is attributable to three or fewer shareholders in the S corporation. How are taxpayers supposed to track the attribution of gross income? Let me give an example.

My friend, the senior Senator from Massachusetts, has introduced S. 144 that would exempt cell phones from the recordkeeping requirements under the listed property rules. Why? Because the paperwork burden is too costly and time consuming for business. I think it is a good bill, and I am proud to be a cosponsor. In fact, the bill has 72 cosponsors. That is a supermajority of the Senate who agree it is a good bill. But if a supermajority of the Senate agrees the bookkeeping burden of parcelling out an itemized cell phone bill between business and personal use is too onerous, why would we think that itemizing the source of gross income across shareholders and employees in an S corporation would be any easier?

This new payroll tax on small business was written without any input from the tax-writing committees, and it shows. Although I am sure it was unintended, this new law has the potential to reduce Social Security benefits. Since the new payroll tax would reclassify income from certain small businesses as wage income, it could trigger the earnings test for folks receiving early retirement benefits from Social Security.

Even Senator Baucus admitted the payroll tax provision needs ``modifications.'' I remember it well because he made this statement during a Treasury hearing a few weeks ago when I raised this issue as an onerous tax increase.

Not only is this a job-killing tax, but the manner in which it was concocted is appalling. The original tax extenders bill raised the taxes on Wall Street bankers, but when their lobbyists howled, lawmakers went looking someplace else--small businesses--for the revenue they needed. Small businesses aren't as able to defend themselves when the tax man cometh, and in the end it results in a new tax that robs David to pay Goliath.

The outrageousness of this new tax led me and my colleague, Senator Snowe from Maine, to file an amendment that would strike the S corporation payroll tax from the underlying tax extenders bill.

If my colleagues across the aisle seriously believe that noncompliance with the self-employment tax among S corporations is a problem, then the best, most workable solution is to codify the ``reasonable compensation'' standard into law. This S corporation ``attribution of gross income'' basis isn't workable. If you don't believe me, again, I refer you to the experts.

I have a letter I wish to submit for the Record. It is a letter from the AICPA, the American Institute of Certified Public Accountants. In the letter they say:

We are concerned that there may be unintended consequences that have not been fully aired and discussed. Accordingly, we strongly support the amendment being offered by Senators Snowe and Enzi which would strike Section 413.

I ask unanimous consent this letter be printed in the Record at the end of my statement.

Again, this seemingly small provision in the tax extenders bill would have a $9 billion impact, and that is just on a subset of S corporations, these small businesses.

This payroll tax provision ought to be stripped and sent back to the tax-writing committees where it can be addressed in the proper fashion. I strongly urge my colleagues to support the Snowe-Enzi amendment in our efforts to remove this misguided, outrageous new tax. I think there is support on both sides of the aisle for doing that.

I thank the Chair and yield the floor.

Exhibit 1

[From taxanalysts]

Federal Research Library: IRS Revenue Rulings

(Rev. Rul. 74-44; 1974-1 C.B. 287)

rev. rul. 74-44

Advice has been requested whether, under the circumstances

described below, an electing small business corporation

incurred liability for the taxes imposed by the Federal

Insurance Contributions Act, Federal Unemployment Tax Act,

and the Collection of Income Tax at Source on Wages (chapters

21, 23, and 24, respectively, subtitle C, Internal Revenue

Code of 1954).

The corporation is a small business corporation with two

shareholders, that has elected, pursuant to section 1371(a)

of the Code, not to be subject to corporate income tax, but

to have all its income taxed directly to its shareholders.

In 1972, the shareholders performed services for the

corporation. However, to avoid the payment of Federal

employment taxes, they drew no salary from the corporation

but arranged for the corporation to pay them ``dividends'' of

100x dollars, which is the amount they would have otherwise

received as reasonable compensation for services performed.

Sections 3121(a) and 3306(b) of the Federal Insurance

Contributions Act and the Federal Unemployment Tax Act,

respectively, define the term ``wages,'' with certain

specific exceptions not material here, as ``all remuneration

for employment.'' Section 3401(a) of the Code, relating to

the withholding of income tax, contains a similar definition.

In the instant case, the ``dividends'' paid to the

shareholders in 1972 were in lieu of reasonable compensation

for their services. Accordingly, the 100x dollars paid to

each of the shareholders was reasonable compensation for

services performed by him, rather than a distribution of the

corporation's earnings and profits. Such compensation was

``wages'' and liability was incurred for the taxes imposed by

the Federal Insurance Contributions Act, the Federal

Unemployment Tax Act, and the Collection of Income Tax at

Source on Wages.

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

Mr. President, before coming to Washington, I ran a shoestore in Gillette, WY. I stocked the shelves. I worked with customers to fit them with shoes. I ran the cash register. I placed the orders with suppliers. I swept the floors. I cleaned the toilets. I did the bookkeeping. In short, I was a one-man show. That is not quite accurate. My wife was there, and we had a couple of clerks. We all had the same responsibilities. My wife helped and actually grew the business while I was mayor of Gillette. We were a one-family show. I know firsthand the struggles and challenges America's small businesses face. We faced them on a daily basis. That is why I am so concerned about the recent action by the Obama administration.

Earlier this week, the administration published a 121-page interim final rule that will have a major negative impact on millions of small businesses across the country. This new rule, which implements just two pages of the health care law pertaining to grandfathered health plans, will increase the costs these businesses will pay for health insurance. This new rule violates the President's repeated promises from last year and the year before that under the new health care law, if you like what you have, you can keep it.

A chart on page 54 of the rule states that the Departments of Treasury, Labor, and Health and Human Services estimate that between 39 and 69 percent of the businesses will lose their grandfathered health plan status. This means these businesses' health plans will not be able to keep their current plans but, rather, will be required to comply with one of the expensive mandates included in the new law. This will, in turn, drive up the costs for these plans, making them even more unaffordable for small businesses. As a former small business owner, I understand how small businesses are struggling every day to find the resources to provide health insurance to their employees. Rather than making it easier for these businesses to continue to provide this coverage, the new regulation will actually make it more likely that employers will simply drop their health insurance coverage altogether.

I have a copy of the chart to show the folks back home. This chart shows the administration's own estimates, which indicate that only about half of Americans will be able to keep what they have. The picture, of course, is even worse for small businesses. Health and Human Services estimates that by 2013, up to 80 percent of small businesses could lose their grandfather status. The plans that do lose their grandfather status will have to abide by a whole slew of new Federal mandates, many of which have not even been written yet.

These are the low estimates of how many people are going to take it again. This is a midrange estimate by the administration and then a high estimate for small employer plans, large employer plans, and all employer plans. The low-end estimate is 49 percent of them will have to go to something different if they cannot be grandfathered, the midrange estimate is 66 percent, while the high-end estimate is 80 percent of small employer plans will have to give up what they have right now because there are more federally mandated requirements they have not been meeting. In my home State, more than 50 percent of the people will have to change to a different insurance. I have to tell you, almost all of them who have insurance are happy with the insurance they have and really thought they could keep what they have if they like what they have. This chart shows that is not going to be the case.

During my days as a shoestore owner, I would not have had the luxury to read a 121-page interim final rule and try to determine what I needed to do to keep my health insurance plan. And if my small business was one of the 80 percent of small businesses that the administration thinks will lose their current status, then I would be forced to pay for a lot more coverage.

One of the most disturbing aspects of this new rule is it will actually make it harder for employers to make changes that could hold down the cost of their health care. Once this interim final rule becomes effective, which will be July 12 of this year--less than a month from now--large and small businesses will have few options for both keeping costs in check and maintaining their grandfather status. If an employer does any one of the following things to manage their costs, they lose the health care they have: If they eliminate any benefits, they lose their grandfather status. If they increase coinsurance rates, they lose their grandfather status. If they increase deductibles or out-of-pocket limits beyond minimum levels, they lose their grandfather status. If they increase copayments beyond minimum levels, they lose their grandfather status. If they decrease the employer share of the premium by more than 5 percent, they lose grandfather status. If they add an annual limit or decrease the lifetime or annual limit, they lose grandfather status. If they change their health insurance carrier, they lose their grandfather status.

Which is the most important one of those? The very last one. If they change their health insurance carrier, they lose their grandfather status. The only way you have a chance of holding those costs down is to bid out the insurance. It made a huge difference in our business. The first time we bid it out--and we were several years staying with the same company and having very huge increases--the first time we bid it out, we found out we could save very substantially, and so we bought the lower bid insurance.

Then the company we had been dealing with for several years came to us and said: Why did you change?

I said: We got a much lower price.

They said: Why didn't you come back to us and ask for a lower price?

I said: That is not the way we sell shoes; that is not the way you should sell insurance.

If they change their health insurance carrier, they will lose their grandfather status even if they provide the same things the other one was providing, which is what you do in a bid. In an attempt to keep health care costs down and avoid having to do the other things we mentioned, you would lose your grandfather status. In short, if employers do anything to help slow the growth of their health insurance costs, they will lose the limited protections against the expensive new mandates in the bill.

It is worth noting that 2 pages in the law--just 2 pages; it was 2,700 pages, but 2 pages are causing all this--that create the grandfathered plans are a blank slate. The law does not say anything about cost-sharing requirements or coinsurance rates.

The administration made up all these provisions and requirements. They did not have to write these rules that preclude half of Americans from keeping what they have. The reality is that the administration does not want you to keep what you have. They certainly like that talking point--it keeps people from getting very nervous--but they do not actually want you to keep what you have. They do not want grandfathered plans to exist. They want to force all Americans to buy only insurance plans that are defined and approved in Washington. It is just one more Washington takeover.

Throughout the rule, the administration makes the assumption that a large number of plans will place a high value on the remaining grandfathered plans. Why do they make this assumption? Because the administration recognizes that employers realize the mandates and burdens included in the health care bill will drive up premiums and drive up costs for large businesses, small businesses, and individuals. The Congressional Budget Office estimates that costs will increase 10 to 13 percent for Americans purchasing coverage on their own. That represents a $2,100 increase for families purchasing coverage.

Page 112 of the rule lists the 13 new mandates included in the health care law that do not apply to grandfathered plans. However, based on the administration's own calculations, it looks as if 39 to 69 percent of employers will now be forced to comply with these new 13 mandates when they lose their grandfather status.

Even for the small number of plans that manage to keep their grandfather status, the reality is that the new law will still impose expensive new mandates that will increase their costs. The new health care law requires all plans, including grandfathered health plans, to comply with certain provisions in the new health care law. Page 112 of the interim final rule has five

sections detailing the new mandates that apply to grandfathered health plans for plan years beginning on or after September 23 this year. Another section becomes effective in 2014.

This bill was sold as letting people keep what they have, but the devil is always in the details. Do a little digging and it is clear that Americans will not be able to keep what they have.

I would like to read a paragraph from page 112 of the regulation. It says:

Provisions applicable to all grandfathered health plans.

The provisions of Public Health Service Act section 2711

insofar as it relates to lifetime limits, and the provisions

of Public Health Service Act--

And it lists several of them--

apply to grandfathered health plans for plan years on or

after September 23, 2010. The provisions of Public Health

Service Act section 2708 apply to grandfathered health plans

for plan years beginning on or after January 1, 2014.

This means health plans are now prohibited from having lifetime limits on the dollar value of benefits for any participant or beneficiary. Even though this section becomes effective after September 23 of this year, the Department has not issued any regulations or guidance telling plans how to implement this new requirement.

Section 2712 says that health plans shall not rescind such plan or coverage, except that this section shall not apply to a covered individual who has performed an act or practice that constitutes fraud or makes an intentional misrepresentation of material fact. We have not seen any guidance or regulations on that section either.

Section 2714 says that all kids under the age of 26 can stay on their parents' health insurance policy. This popular provision got a lot of attention from the media and the administration. Because of the popularity, this is one area where the administration has actually written an interim final rule which becomes effective July 12 this year even though the comments are not due until August 11 of this year. The final rule goes into effect July 12, but the comments are not due until August 11. In other words, they are not going to read any of the comments before that goes into effect.

In the rule, the administration includes an analysis saying that this provision is expected to increase premiums by 1 percent. That might not sound like a lot on its own, but remember that this is only one of the six provisions with which all health plans, even grandfathered plans, will be forced to comply. If each of the other five provisions also drives up premiums by similar amounts, that would equal a 6-percent increase on top of whatever increase results from normal medical inflation.

Section 2715 says all plans must give enrollees a government-approved summary of benefits and coverage explanation describing the benefits included in the plan.

The interesting thing about this section is that Secretary Sebelius has until next March to publish the standards the plans have to use when they draft these documents, but the plans have to give their enrollees the documents this September. How is that possible? If plans do not have these documents ready, they can be fined up to $1,000 per enrollee. The standards will not be ready until next year, but the plans have to comply this year or face a $1,000-per-enrollee fine. Common sense rode a horse right out of Washington. Maybe it was never here to begin with.

Section 2718 says all plans for big businesses have to spend at least 85 cents out of every premium dollar they get paying claims, and plans for small businesses and individuals have to spend at least 80 cents out of every premium dollar they get paying claims. This may sound like a good idea, but, again, the devil is in the details.

The National Association of Insurance Commissioners is responsible for defining the terms used in these calculations and coming up with some recommendations about how to implement this section. The Secretary asked them to make these recommendations earlier than when the law says, but they have been having some difficulty. The difficulty is that States know that implementing these provisions will put health plans out of business--out of business. When the plans go out of business, the Americans enrolled in these plans will lose their coverage. This is a real problem with which the insurance commissioners are grappling. Unfortunately, Republicans warned our colleagues on the other side about this problem last December but we were ignored.

Section 2708 becomes effective in 2014 and says that plans cannot apply waiting periods that exceed 90 days. Again, this provision sounds like a great idea, and some States are already doing this, but this is one more thing that will drive up costs.

No single raindrop thinks it is responsible for the flood. These provisions may sound like good ideas when looked at by themselves but, when taken together, they drive up premiums to the point health care is unaffordable.

All these sections I have been talking about are mandates that apply to all plans, even grandfathered plans. There is a whole list of mandates that do not apply to grandfathered plans but apply to the new plans. Page 112 of the rule. I would refer you to that. I won't read it here. It has a lot of references again, and even though these sections aren't supposed to apply to grandfathered plans, as this rule points out, about half of all Americans will lose their grandfathered plan and they will be forced to buy a plan that includes the additional mandates.

But if you are enrolled in a union health plan, have no fear. Different rules apply to you. The administration's favorite special interest group gets special treatment under this rule. This is exactly the kind of political cynicism this administration campaigned against 2 years ago. Page 48 of the rule says:

This estimate does not take into account collectively

bargained plans, which can change issuers during the period

of collective bargaining agreement without loss of

grandfather status.

Keep reading, because page 50 says:

For fully insured group health plans, another change that

would require a plan to relinquish grandfather status is a

change in issuer.

The bottom line: Big labor can change issuers, but small businesses cannot change issuers. The ability to change issuers is something that keeps insurance companies competing against each other to see who can offer the best product at the lowest price.

I ask unanimous consent to speak for 2 more minutes.

I thank my colleagues.

The ability to change issuers is something that keeps insurance companies competing against each other to see who can offer the best product at the lowest price. Take that competition away, and prices will go up--for everyone but union plans.

The simple truth is, because this new rule will drastically tie the hands of employers, few employers are expected to pursue grandfather status. That means more than half of Americans who like what they have won't be able to keep it. As I said earlier, this is not a mistake. This is exactly what the President and the majority controlling Congress want. They want all Americans to be forced to buy the kind of health insurance they think you should have. Never mind that you can't afford it. Never mind that employers faced with the choice of either paying for health insurance or paying a new penalty will be less likely to hire new workers and will probably even lay off workers. Simply put, this rule States: Washington knows best. Never mind the President promised Americans who like what they have can keep it. This new rule is pretty clear: If you like what you have, you can't keep it.

Mr. President, I yield the floor.

Madam President, this past week, Fremont County in my home State of Wyoming has been hit hard by flooding. I want to take this opportunity to commend the communities in Wyoming that have come together and worked so hard to respond to the flooding, to help protect each other's homes, and whose willingness to step up and volunteer to help their neighbors really shows the true Wyoming spirit.

I want to thank the individuals who have been filling sandbags all week. Literally hundreds of thousands of sandbags have been filled to help hold back the floodwaters and protect homes and businesses. I am told that there are more sandbags if we need them and I know that people in my home State won't hesitate for a second to do the hard work that will help protect a neighbor's home or a community business. This truly is a community effort, and I am proud of the example that our small businesses, our community organizations, and Wyoming's volunteers are making.

Nearly 240 Wyoming National Guard members are in Fremont County right now. Their service is critical to our communities in times like these, and I want to recognize and thank them for their hard work. They are making a huge difference in helping make sure that communities like Lander, Ethete, Fort Washakie, and many other places have the help they need.

The extent of the damage from this disaster is still unclear, but our communities--both in Wyoming and in other States that have been hit by natural disasters--must have the resources to recover and put their towns and neighborhoods back together. For those agricultural producers affected by this flood, this is the very reason why I worked with my colleagues during the 2008 farm bill to enact a permanent disaster program--so funding would be available when it is most needed and would not require emergency congressional action.

I know Senator Barrasso and Representative Lummis are working hard to make sure Fremont County can get the support it needs. Their energy and hard work have been critical to the teamwork that we do. Wyoming is a big State, so I am glad that we have always worked together to make sure we can get different jobs done in different places.

I want to thank everyone who has helped respond to this disaster for their hard work and persistence. They have truly demonstrated what it means to part of the Wyoming community. Our prayers are with everyone at this difficult time.

Madam President, I rise in support of Senator Murkowski's resolution that would ensure this Congress keeps its responsibility to establish our Nation's environmental regulations. The Environmental Protection Agency's move to regulate carbon dioxide under the Clean Air Act is an economic and bureaucratic nightmare in the making that is going to have a devastating effect on our economy and put a regulatory stranglehold on businesses and individuals across the country.

The Congressional Review Act was passed in 1996 to make sure Congress could step in when Federal agencies got off track. It was a bipartisan bill because Senators and Representatives recognized we should not hand off our responsibility for setting Federal policy to Federal agencies. So when Federal agencies get off track, we have a way to bring them back to reality. We need to bring the EPA back to reality on the catastrophe that regulating greenhouse gases under the Clean Air Act would create because if we don't, it will be consumers and businesses-- both small business and big business in every sector of our economy-- that will end up paying more than they can afford for these regulations.

The consequences of allowing the EPA to regulate carbon dioxide under the Clean Air Act are tremendous. The EPA's rule that will go into effect if Senator Murkowski's resolution is not adopted would not just apply to big powerplants or industrial factories. More than 6 million businesses and residences will come under these new regulations at a cost of billions of dollars to our economy. The EPA is going to regulate small business and family farms, and those who can't afford to comply will go out of business. They will regulate office buildings and warehouses, and if you rent space in an office building or store your inventory in a warehouse, your costs will rise. Grocery stores, restaurants, hotels, residential buildings, and even individual homes will face complicated and expensive regulations.

It is not just Members on my side of the aisle who believe the EPA is taking a disastrous approach. The White House and members of the President's party have said EPA's move to impose ``command and control'' regulation on greenhouse gases would be a step in the wrong direction.

Where would the regulations stop? No one knows for sure. Cattle produce a lot of carbon dioxide and methane, so it is hard to imagine how the agricultural industry would not be impacted. What about people? In a big city, people are breathing out carbon dioxide all day long. Could that be subject to regulation under the Clean Air Act? Could breathing become a fineable violation or would there be a new tax as breathing isn't an option?

There will be many unintended consequences if the EPA is allowed to move forward, and we have a chance to stop that from happening today by supporting Senator Murkowski's resolution disapproving the EPA's action.

Our economy has lost 8 million jobs over the past 2 years, and unemployment is still almost 10 percent. Businesses that had to lay people off are still hurting. The last thing our economy needs and the last thing businesses can afford is an EPA choke hold. According to the EPA, the average cost of compliance for stationary sources that would be regulated is more than $125,000. That is an average cost. Some will be less, but many will be more than $125,000. It is just an average. That is $125,000 that could be used to hire new employees. It is $125,000 that will not be spent on business expansion. Right now, with our economy struggling, we need to be working to encourage businesses to hire more employees and to grow, but unless we stop the EPA's overreach, businesses across this country will be facing the harshest and most expensive regulations they have ever seen.

Some people have suggested that EPA's decision to move forward with greenhouse gas regulation will pressure Congress into implementing a cap-and-tax proposal. They say: We don't want EPA to regulate, but we have to keep pressure on Congress or Congress would not act. I don't buy that argument because, as the old saying goes, ``two wrongs don't make a right.''

Senators are faced with a choice. If it is wrong for the EPA to regulate, they should stop it from happening, and supporting Senator Murkowski's resolution is the clearest way to do it. My colleagues who oppose this resolution are voting in favor of EPA action. They are voting to allow the EPA to set up complex regulations that will strangle our economy, kill economic recovery, and further squeeze consumers and businesses across the country. It is the start of a slippery slope. How much control will the EPA reach for after this if it isn't stopped now?

The Clean Air Act is not the EPA's regulatory Swiss Army knife.

Even EPA Administrator Lisa Jackson has said that the Clean Air Act was not written to apply to greenhouse gases. Greenhouse gas is not one of the six categories of pollutants that the Clean Air Act covers and the list of 188 specific pollutants that are regulated under the Clean Air Act does not include carbon dioxide or methane. Even if Congress did decide that carbon dioxide and other greenhouse gases should be regulated, the Clean Air Act would be the wrong tool for the job. Greenhouse gases come from large and small sources, from major manufacturers and industrial plants and from community hospitals and small-town businesses. And yes, they come from animals, and yes, from people breathing in and out. Applying the Clean Air Act across the board to sources that emit a small amount of carbon dioxide--as the law requires--would be clumsy and harmful, and ultimately do tremendous economic harm to America's businesses and consumers.

The Congressional Review Act was passed so that Congress could step in and prevent federal agencies like the EPA from implementing rules or regulations that don't make sense. I hope my colleagues will recognize the tremendous harm that allowing the EPA to regulate greenhouse gases under the Clean Air Act would do to our economy. While there are many disagreements about climate change legislation, we should all be able to recognize that the course the EPA is on now is the worst of all worlds. Their approach would stymie our chances of recovering from the recession and stifle economic development for businesses and consumers who are already struggling to make ends meet.

Is there no end to the administration's approach of believing that any situation can be saved with more redtape, more regulations, and more fines? Is there any end to the power grabs of this administration, which has thrown every obstacle it can think of in the path of our small businesses? Supporting the Murkowski resolution would check the EPA and give our small businesses that make up the most important part of our economy a fighting chance.

This is the last chance to stop the EPA's carbon overreach and the slippery slope that will ensue if we allow them to move forward with these harmful regulations. Please vote yes on the motion to proceed and yes on the motion for disapproval.

I yield the floor.

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

Mr. President, I ask unanimous consent that I be allowed to speak for 10 minutes as in morning business. I will be speaking on the supplemental bill, however.

Mr. President, I rise to express my opposition to the fiscal year 2010 Supplemental Appropriations Act. It represents what is reprehensible about the conduct of the Federal Government: unchecked, unpaid for, deficit spending. After a trillion dollar ``stimulus,'' a trillion dollar health care bill, and huge increases in the budgets of the bureaucracy, Americans are fed up with Congress's out-of-control spending. Our constituents have had enough, and they have asked us to rein in spending. Unfortunately, rather than listen to their cries, we have another appropriations bill that represents the same old, same old.

Of the nearly $59 billion of spending in this bill, all but $103 million is designated ``emergency'' spending. What does ``emergency'' spending actually mean, and what are these emergencies the Nation is facing?

Emergency spending means deficit spending. It means we are spending money that we as a nation do not have. An emergency designation relieves Congress of the burden and the responsibility of coming up with ways to pay for the spending. We are continuing to make purchases on the taxpayer's credit card, knowing full well we have no plans to pay back the loan. We have already maxed out the credit card. The company just has not found out yet.

Some programs under this bill may be considered true emergencies. There are unforeseen disasters, such as flooding and oilspills. But there are also disasters that occurred years ago that would receive funding under this legislation. Funding may be needed for those programs, but the lack of funding was certainly not unexpected and should have been in last year's and this year's regular budget and appropriations process. But appropriations and budgeting have been so disfigured, contorted, abused, and ignored by lawmakers in recent years that the system is broken, and you have a series of omnibus and ``emergency'' or supplemental bills. It is not the way to do it.

Even in the writeup of this legislation, the Senate Appropriations Committee noted that the $5.1 billion for the FEMA Disaster Relief Fund is necessary to pay for known costs for past disasters, such as Hurricanes Katrina, Rita, Ike, and Gustav, the Midwest floods of 2008, and the California wildfires, as well as needs that emerge with new disasters.

The bill also provides $13.4 billion in mandatory funding for the Department of Veterans Affairs for disability compensation to Vietnam veterans to implement a recent decision by the VA to expand the number of illnesses presumed to be related to exposure to Agent Orange. There is no doubt Vietnam veterans exposed to Agent Orange should be properly compensated, but Congress and the administration must find a way to pay for these programs without spending money we do not have and do not intend to pay back. There is no plan to pay back.

I want to make very clear my strong support for our Nation's veterans and the current members of our Armed Forces and the vital work they are doing in the world every day. I have the greatest admiration for today's service members and veterans for their commitment to preserving our freedoms and maintaining our national security. I must question, however, using their sacrifices to justify irresponsible spending by this Congress.

Congress must pass this bill to keep the necessary resources going to our military. America has deployed our young men and women to defend our Nation's interests, and they deserve no less than having the funding and equipment necessary to carry out their missions. But some in Congress do not see this as just about the military. They see it as an opportunity to add their pet programs to the shoulders of our Armed Forces. No one wants to leave our military operations unfunded, so our military needs are being used to leverage support for nonemergency, deficit spending.

To be fair, the Appropriations Committee found some offsets for the spending in this bill. Unfortunately, the offsets only account for .17 of 1 percent of the total cost of the bill--not even a quarter of a percent of the cost of the bill: .17 of 1 percent of the bill. You would think we could at least hit the 1-percent mark. Mr. President, .17 percent is all that is offset in this bill. That is wrong.

Senator Coburn and Senator McCain have offered amendments that would offset or pay for the larger costs of this legislation. Tomorrow morning we will get to vote on those, and I hope we will take them into consideration and make sure this is paid for. I hope all my colleagues will take a look at those amendments.

The funding cut proposals are reasonable. They are well thought out. They are ideas that will help us responsibly address the serious spending problems this Congress has. It is time for Congress to step up and start making the hard decisions of prioritizing Federal spending.

The American people have made it clear that Congress needs to be fiscally responsible. They have made it clear they do not support our spending billions of taxpayer dollars with little or no debate. We have been asking Americans to tighten their spending belts and take responsibility for their personal debt. It is about time the representatives of the people do the same.

In April 2009, when making an emergency supplemental appropriations request, President Obama said:

We should not label military costs as emergency funds so as

to avoid our responsibility to abide by the spending

limitations set forth by the Congress. After years of budget

gimmicks and wasteful spending, it is time

to end the era of irresponsibility in Washington.

End of quote by the President.

I could not agree more. Congress and the administration need to find a better way to fund current military operations. Most of these funds are expected and should be addressed in the regular budget process.

Again, I want to provide our troops with the funding and the resources they need to be successful as they work to protect America. I do not, however, want the brave men and women of the Armed Forces nor the families of America who have been truly impacted by unforeseen disasters to be used as justification for unchecked and, in some cases, unrelated spending.

The men and women of our armed services deserve better than this spending bill. The people of the United States deserve better.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, there was a request made to me by the Senator from Delaware if he could have 1 minute to add his name to this discussion that has just been held. I ask unanimous consent that it not be taken out of my time, but that 1 minute be given to the Senator from Delaware.

Mr. President, I want to make it clear that the amendment that has just been talked about is not the only one that is not getting a vote that is absolutely essential to making this bill work--the amendments the American people expect.

There was some comment about the Brownback amendment. That is one to allow automobile dealers to still sell automobiles, which they may not be able to do under this bill the way it is written. Another concern, of course, comes from anybody else who sells something on installment. That would include dentists and realtors and a whole range of people who sell things that way, and they are not going to be allowed to get a fix under this bill.

So I want you to understand how wide-ranging this bill is. This is going to get into everybody's pockets. I am not talking about businesses; I am talking about individuals. The dadgum government is going to be in everybody's pockets with this bill. This gives the government permission to look at your records. In fact, it requires your bank to keep them and send them to the Federal Government--to this new bureau we are creating.

This little 1,408-page bill, which with amendments I think is now over 1,500 pages, probably should have been three bills. It probably should have been three bills. We could have worked it properly, and maybe people would have read it.

The Republicans did stop cloture twice, and they did it so they could amend the too big to fail. Too big to fail was actually a bailout--a perpetual bailout--for big banks. That is why Goldman Sachs, at a hearing here, said: Well, we can live with that. That is why Citi said they could live with it. The big banks did not have any problem with it. But it has been revised now because it was held up, and we were finally able to get some amendments on the first section.

There is another section in here. It is called derivatives. We talk about ``derivatives'' because we know America will not understand that, so they, again, will not understand how we are getting into their pockets. But that is a section that needed changes. I think the Senator from Connecticut, the chairman, Mr. Dodd, realized that and drew up some. But it is my understanding he was not allowed to put those in here, even though I read in the paper one morning, joyously, that he had some amendments that were going to make some corrections. But he was forced not to put them in.

So that is one-third of the bill that, obviously, has some faults in it yet. But that is not even the part I am really concerned about. I am concerned about this last third of the bill. It is 268 pages. Of course, there are another 100 pages that follow that of other acts that are going to be affected by it.

This is a brandnew bureau. We don't have enough government? We are going to start a whole new bureau, and we are going to turn everything financial over to that bureau. But don't worry about it. We are going to stick it into the Federal Reserve, which we don't have any control over, and we are telling the Federal Reserve: You don't have any control over this new bureau, but you have to give up to 12 percent of your money to operate this bureau. That is why we put it under there; it will be off budget so it will not show up right away in the deficits, but it does. It is going to cost us 12 percent of the operating revenue of the Federal Reserve. Does anybody know how much that is? Well, they are going to get 12 percent of it. What fascinates me is that following that, there is a paragraph that says it will be adjusted for inflation. Wow. Let's see. If I get 12 percent of something, it is probably an expanding amount from year to year anyway, but if it doesn't expand one year, this bureau is still going to get the money as though the economy had expanded.

I get worked up over it because I had an amendment that I think might have solved things for people--it certainly would have calmed me down a little bit--and that is one that would have provided for personal, individual privacy. I wasn't allowed to bring that up. I wasn't allowed to make it pending, in which case it would have been germane now and in which case we would have been able to vote on it now. I was kept from doing that. That is because somebody intends to give this bureau unlimited power to snoop. It is going to be devoted to snooping into personal records. My amendment very simply would have prevented Big Brother from looking over your shoulder at your personal financial records unless you give permission.

Part of what we want to do is, if you are having a problem with your credit card company, we are hoping there is some way to fix it. Sometimes that happens in your State, but it doesn't always happen in the State. So the way this was sold is if you are having a problem with your credit card and you get ahold of this bureau, by golly, they will straighten it out. They will be looking at your records whether you have a problem or not. Maybe they are going to decide whether you have a problem or not. There is no real jurisdiction in here. There are 268 pages, but it doesn't say exactly what this outfit is going to do and they get to write their own rules and nobody gets to oversee the rules. Then they enforce those rules, and there isn't any real limit on that except for the amount of fines they can charge, which they mention, and they are pretty drastic anyway.

So your bank is going to have to keep your records for 3 years, and they are going to have to send them to this bureaucracy. I will point out some other things they are going to require with your personal accounts. It should have been in there.

When I was talking about this, I picked up several people on the other side of the aisle. It would have been a

bipartisan amendment that I am sure would have passed, but it created a little concern over there, so they came out with their own version of the privacy amendment. Mine was a mere couple sentences long; theirs was considerably longer than that. But mine did something, theirs didn't. So I proposed an amendment to protect consumer privacy to give each of us a choice in how little or how much financial data the Federal Government and this bureau would be able to access and if we wanted their help. My amendment very simply prevented Big Brother from looking over your shoulder on a daily basis at your personal financial records.

Rather than fixing the problem, I mentioned this side-by-side amendment, No. 4082, that makes the government intrusion even worse. Under that privacy amendment, it didn't do anything to stop the so- called Consumer Financial Protection Bureau--I think it ought to be called the Consumer Financial Control Bureau--from snooping wherever they want. In fact, your bank, as I mentioned, would have to send them records.

I wish to be a little bit more specific. I will explain why the Dodd amendment is worse than the underlying bill because it tries to trick the people with the promise of privacy and, at the same time, uses weasel words to comb through your personal lives anyway. I will lay out how the Federal Government will be watching over your shoulders with freedoms just slipping away a little at a time.

The underlying bill and the Dodd amendment both use slippery sleight of words, but this isn't some magic trick that will suddenly disappear. No, my friends, this would be one of the sickest jokes you can imagine.

I stand before you to educate the people of America about the fallacies in this underlying bill. I stood before my colleagues a few days ago saying that I recognize some consumers out there may want the government in their lives monitoring their transactions. I still do not claim to understand that desire, but my amendment would not take away their choice in the matter. In fact, my amendment would allow me as a consumer--if I get into credit card trouble and want the bureau's help, all I have to do is contact the bureau and give them permission to look at my financial documents. People who are having problems with the Federal Government get ahold of our staff people in our State all the time so we can work on straightening out that problem with the Federal Government. But you know what. You better have them sign a privacy release or you could be in big trouble. This bureau isn't going to have to get a privacy release. My amendment would give consumers the ability and the personal option. As long as the bureau has written permission from a consumer, they can look at the financial past, present, and future. Without my amendment, they can look at your financial past, present, and future without your permission.

I am adamantly opposed to this privacy amendment that was drafted by the other side. It paves the way for a radical shift away from your right to privacy. I hope you will take a few seconds necessary to read the two-page amendment, No. 4083, the side-by-side to my privacy amendment. If you do, you will instantly notice the weasel words in this amendment. That amendment and the underlying bill promote yet another government takeover of another portion of our lives. They want to take over how we spend our money.

Think of all the takeovers there have been in the last year and a half. This one is the big one--your finances. The American people have had enough government takeovers already, and I don't think they will stand for the Federal Government accessing one more facet of our lives. Although I respect my colleague from Connecticut and the other people on the other side of the aisle, this version of sham privacy would actually encourage a takeover of your finances behind your back or merely in the name of protecting us from ourselves. As I mentioned, one-third of this bill is devoted to snooping into records. This bill was supposed to be about regulating Wall Street. Instead, it is creating a Google Earth of your every financial transaction. That is right. The government will be able to see every detail from the 50,000- foot perspective or they can look right down into the tiny details to the time and place where you pulled cash out of an ATM. The real kicker is, despite claiming the Dodd amendment creates privacy protection, it doesn't do anything to stop this snooping into individuals' lives.

Yesterday, I read an article in the Philadelphia Enquirer from former Senator Rick Santorum, who is a former colleague of mine from Pennsylvania. In this article, he talks about the lack of reform of the housing markets and more specifically how the greatest contributors to the collapse of the housing market--the GSEs, Fannie Mae, and Freddie Mac--have gone untouched and unreformed in this bill. We had a discussion on that in the Budget Committee. We had a little amendment that would have made sure the liabilities of Fannie Mae and Freddie Mac would show up on the Federal financial statement because the Federal Government is liable for them. The answer was: Well, we can't take it off their balance sheet and put it on ours because that would make them look good. I said: Oh, no, no. You wouldn't take it off theirs. It would be a consolidated statement. It would show up on both of them. But what the Federal Government owes ought to be clear--not that we do good governmental accounting around here.

This bill even leaves their $800 billion spending ability intact for Fannie Mae and Freddie Mac.

So then Senator Santorum asked if Fannie and Freddie had gone untouched and this entire bill was meant to rein in Wall Street--``What is the 1,565-page''--looking at the printed copy on our desks-- ``financial reform bill that's up for a vote this week in the Senate?''

He says:

My favorite among the bill's assaults on free enterprise--

and, more important, individual liberty--is the proposed

Consumer Financial Protection Bureau. This latest concept to

come from the Obama administration's ivory tower types is not

your run-of-the-mill bureaucracy. The theory behind it is

behavioral regulation.

Let's talk about that a little more. Behavioral regulation

is studying human behavior interactions and habits such as

how we spend our money, go about our daily lives, so humans

can be better governed, ruled, or controlled. You can pick

your verb, but no matter what, this ``behavioral regulation''

sets up the government to interject and use its strong arm in

our daily financial transactions.

To continue with the Senator's article, he says:

The academic-turned-bureaucrat who came up with the bureau

is Assistant Treasury Secretary Michael Barr, who has penned

such articles as ``Behaviorally Informed Financial Services

Regulation.'' Wonder what might be in store? Think czar for

checking accounts and credit cards. According to Barr

himself, `` . . . regulatory choice ought to be analyzed

according to the market's stance towards human fallibility.''

That's right: He thinks our market-based economy is composed

of businesses designed to bilk people by exploiting their

flaws. I assume his research shows that government

bureaucrats don't share that human fallibility.

Let me say that again. He talks about business trying to bilk people, but evidently his research doesn't show that government bureaucrats would have that same potential flaw.

Continuing:

How would the Consumer Financial Protection Bureau come to

know you and what financial products are best for you? It

would be given the power to collect information on businesses

and individuals. It would even be able to require you--

Now listen carefully to this--

It would even be able to require you to answer questions

under oath about your personal finances.

Barr and his nanny-state administration colleagues are

working to require that some banks ``geo-code'' deposits to

allow tracking of their origins and provide other information

about their accounts. Think Google Earth for all our personal

financial transactions. I hope the data are more secure than

the Department of Veterans Affairs.

While the President has deceptively characterized this

debate as being about Wall Street vs. Main Street,

congressional Democrats have refused to police their side of

the street--Fannie and Freddie. Instead, they continue to

deny public opinion and push a bill that will further expand

government, invade our privacy, and assume even more control

over our lives.

That is the end of the quote from former Senator Santorum.

Think about this: The Federal Government would now be allowed to collect all kinds of financial data about consumers, not just about potentially deceptive practices or even shady Wall Street actions but, more specifically,

monitoring how we as consumers do our banking, how and why we purchase products, where and when we pull $20 out of the ATM. I ask you: How does this snooping into our daily personal lives protect consumers? This bill was sold to the public as a way to rein in Wall Street, but near as I can tell, this one section that we haven't talked much about is the perfect excuse for Big Brother to worm his way even further into our lives and our privacy.

I now wish to read two paragraphs in the underlying bill. These paragraphs are from the misnamed ``Consumer Protection'' title X. On page 1,239, section 1022(c)(4)(b)--isn't that fascinating--it says:

The Bureau may: (B) require persons to file with the

Bureau, under oath or otherwise, in such form and within such

reasonable period of time as the Bureau may prescribe, by

rule or order, annual or special reports, or answers in

writing to specific questions, furnishing such information as

the Bureau may require.

The reference on that was section 1022(c)(4)(b), which in the printed copy is on a different page than the page I stated. It is closer to the beginning of the section.

So the paragraph I just read says the bureau can gather and comb through your financial information ``as the Bureau may require.''

Remember, I said they get to set their own rules. Nobody approves their rules. They do the enforcement. Nobody is over them in enforcement.

So continuing on to the following paragraph (c), which is on page 1,240 if you are looking on the computer:

The Bureau may: Make public such information obtained by

the Bureau under this section, as is in the public interest

in reports or otherwise in the manner best suited for public

information and use.

In case you missed the implications of this, I will spell it out further. Not only does the bureau have the power under this bill to make consumers testify under oath, the bureau could then publish any or all information they have gathered about consumers and publish or use this information as they see fit.

In reality, this bill encourages consumers to rely on government to protect us from ourselves, from bad decisions we make, instead of empowering personal due diligence. We have the inherent freedom in this country to make choices and even the freedom to make bad choices. In America, that is the way it works, and that is how it is supposed to work.

I went to an honor flight yesterday for Wyomingites who fought in World War II, to visit their memorial--it was very late in happening-- and all of them are over 80 years old. They are paying more attention than they ever have in my lifetime to what is going on in the Federal Government. They had questions about what is going on here. They said: You know, we didn't fight for that. We fought for freedom.

This bureau may create some much needed protections for consumers, but it goes too far. Without my amendment, the bureau will be required to collect daily transactional financial services information on every consumer. The government would see every time you need money or buy anything online, if they want to.

I offer another choice to my colleagues and the people of the United States. This choice allows consumers to let the bureau into their personal lives if they so choose. I am hoping that before this comes back from conference committee, they build privacy into section 10. They really need to. If there was going to be a managers' amendment, it wasn't going to have the privacy piece. But there is not going to be a managers' amendment now because we are limiting amendments because this is taking so long. There are 1,408 pages, and it ought to take a while to talk about this.

I had a visit from the economic adviser of the President, Mr. Summers. I just talked about this section. He said: No, no, no, this will work like the FDA and OSHA.

I know people aren't too pleased about OSHA, but I couldn't buy that argument because I am ranking member on the HELP Committee. OSHA is under us and FDA is under us. We know about oversight and who has control and who writes the regulations and who gets to oversee the regulations and, just as important, where they get their budget, the appropriations, the money to operate.

Remember, I said this one is going to get 12 percent of the operating revenues of the Federal Reserve. That won't show up in the score because the Federal Reserve is over on the side. The amendment we had to have an audit of the Federal Reserve--which is probably long overdue--will show that. But it won't show up in the score because they are spending it before it comes into the Federal Government's budget. But it will reduce the amount of money that comes to the Federal Government. So it will add to the debt and the deficit.

I think we ought to require this new bureau--new bureau? How many people do you think they will hire? In the health bill, we gave permission and I guess it is for IRS agents to look at who is buying insurance and who is not and whether they are buying the mandatory insurance, the mandatory minimum we put on there--we hired 16,000 IRS agents. That is where the growth is in the job market. It is still stagnant, but we are adding a lot of government employees--16,000 IRS agents--to see if you are buying the right kind of insurance or paying a fee if you don't.

Well, that is minor in light of this one. We didn't even say how big this bureau could be. We didn't limit their money. We didn't say we would ever look at anything they do. I am sure we are going to have to because we are going to have people from all over this country yelling and screaming about somebody getting into their pockets.

I urge my colleagues to consider the amendment I have offered when they get to conference committee. I am certain they are going to make a conference committee or I hope they have a conference. There are still problems in every single section, and maybe they can solve some of them.

The way we do it now is we lay down a bill and say: This is the way it is going to be. If you want to make a little tweak, OK, but don't count on making any major changes.

When Senator Kennedy and I worked on bills, we went through the committee process, and we looked at every amendment that came in, recognizing there was this seed of an idea there that maybe needed to be included in the bill. The whole thing might not work, but there ought to at least be a seed there because somebody thought of a way the bill ought to be improved.

We have eliminated that this year. Now we are going to take it to the floor, and if you want to try to make an amendment, you can. But remember, we have the majority of the votes, and we will put a 60-vote threshold on it, which means neither side will be able to do many amendments, and that has been shown here. Immediately, we will complain about how much time has been taken to debate this bill. Let me tell you, a whole lot more time should have been taken to debate this bill, and more amendments should have been looked at with this bill. We might have made a unanimous consent that they all had to be relevant, but we should have considered the relevant ones and not gone off into different areas.

A lot of people are complaining about this. They have looked at their part of the bill, and they know it is going to damage their business. That is why there was the amendment to fix things for the auto dealers. That is just one small part of people who do things on a series of payments. An orthodontist talked to us, and they do dental work over a period of time and take payments. I don't know if that will be possible anymore. We are not going to exempt anybody; we are not going to exempt any individual. They are all going to be required to pony up and show what they have, no matter how personal their finances are to them.

I ask my colleagues and all Americans to think about what this amendment and underlying bill will do to their privacy. To my colleagues especially, your constituents will not stand for this invasion of privacy or these sham attempts at privacy. Do them a favor: let them make their own choices about who can get in their bank accounts and who can't.

I don't very often get upset. But I am upset. I think I am just a reflection of the average person out there--the average person who might have looked through a little bit of this, and they can do that on the computer now--and they expect us to read it, and I expect a lot of people have not read title X. If

they did, I think they would be just as upset as I am--all 268 pages of it. A brandnew bureau, new bureaucracy, total autonomy, funded by the Federal Reserve, as I mentioned--12 percent of their operating revenues. Does anybody know how much that is? Again, they do that so it is off budget. The Federal Reserve will not have any control over this outfit. It is just under there for the purpose of the money.

Here is another thing that fascinates me. If they have revenue left over at the end of the year, they get to invest it. It doesn't say we can look and see how much they have and how much they are investing and how much autonomy they have because of the money they banked. It doesn't say that if they have excess money one year, the amount they will get will be less the next year. No, they are guaranteed 12 percent the next year, plus inflation. I don't know how we write bills like that.

They have the exclusive enforcement authority. They can coordinate examinations with other regulators, but they are the primary enforcement authority, not anybody who might have some oversight. They are the primary authority, and you will find that on page 1103 of the hard copy.

Let's see. At first, when you are reading this section, you think this is just going to cover banks that have over $10 billion. That is page 1101. Then you think, I don't have very many banks over $10 billion, and I am for small business anyway. So my community banks and credit unions are going to be OK. Then you get to page 1110, which says the rules cover everybody under $10 billion. Let's see. If it covers everybody over $10 billion and everybody under $10 billion, with my math, that is everybody. Everybody is going to be controlled by this new consumer protection bureau. It really ought to be called a consumer control bureau.

Well, let's move to page 1139, the mortgage loan disclosure document. You are going to get another disclosure document now when you buy a house. We get to oversee the director, but that is the last oversight we get. He gets to hire anybody he wants. Then he gets--if he gets around to it--to write rules and regulations and make up a new mortgage loan disclosure document. You don't have any obligation to maintain personal records--1141. They are going to look at them, and you are going to want to answer when they do that.

Page 1145 is going to provide a private education loan ombudsman. Normally, that sounds good. This would be somebody who straightens things out, I guess, with your loan operator or maybe even with the consumer protection bureau that will have all this control over you. Page 1146 says the ombudsman evaluates his own effectiveness annually. How zealous is he going to be?

I have a whole list of things here I won't go into. My time is up. I should have asked for my whole hour under postcloture. Look at this bill, and you will be just as upset as I am.

I yield the floor.

Mr. President, I would like to make a point of clarification on my GASB amendment. This amendment creates a new and stable funding source for the Governmental Accounting Standards Board. The GASB serves an important function to provide pronouncements on accounting and financial reporting for State and local governments, and their work should be commended. However, I must clearly make a point that for the purpose of this amendment, and the work of the GASB, that financial reporting be defined as the ``presentation of objective historical financial data on the financial position and resource inflows and outflows of State and local governments, as well as information necessary to demonstrate compliance with finance-related legal or contractual provisions.''

I object.

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

Mr. President, I ask unanimous consent to be able to speak as in morning business but on an amendment that I will bring up later on the bill.

Mr. President, I have had some concerns over the consumer protection part of the financial reform bill, mostly because I do not think there are very many limitations on it. Particularly in the area of personal privacy, I have some major concerns. So I have developed an amendment that I think will solve that. It is the kind of amendment I have often seen brought up by both sides of the aisle to make sure no agency is going through your personal finances without your permission or any other thing that is personal.

So if you think full-body scans at the airport security is bad, they do pale in comparison to the consumer protection provisions in the financial regulatory bill we are debating. Even if you are okay with the heightened airport security measures, will you be OK with a full scan of your financial records?

If left alone, this bill will set up a Federal bureaucracy that will be able to comb through the personal financial records of millions of Americans in the name of protecting consumers.

Also, in the name of protecting us from ourselves, this bill would require banks to keep and maintain records of all bank account activity and financial activity of their clients for at least 3 years, while also requiring this information to be sent regularly to the bureau for safekeeping.

I have serious concerns about our government collecting information on the daily activities of its citizens and equal concerns about the government approving or disapproving the financial choices of its citizens. For those who agree with me, and even those who disagree with me on the consequences or meaning of the language in this bill, I have a straightforward and easy solution.

My amendment, 4018, simply says that if the new bureau created in this bill wants to investigate a consumer's individual transactions, then the bureau must get written permission from that individual. All this means is that the bureau cannot investigate someone's banking activities or credit card purchases without that person's permission.

The bill is simply that. This is one page going into thousands of pages. It says:

Notwithstanding any other provision of this Act, any

provision of the enumerated consumer laws or any provision of

Federal law, the Bureau may not investigate an individual

transaction to which a consumer is a party without the

written permission of that consumer.

It is pretty straightforward. It makes sure they aren't going to investigate a consumer's individual transactions without written permission from that individual, and they can't investigate someone's banking activities or their credit card purchases without that person's permission.

My amendment would also make it so that the government can't watch over my financial transactions without my saying so or without you saying so on yours. My amendment gives consumers a choice. I don't think the bureau should be allowed to look over my credit card statement to see if I am spending too much money. I don't think the bureau should be allowed to monitor my purchases and note that I bought a new car, a new boat, or a gun.

I recognize there are consumers out there who may want the government in their lives, monitoring their transactions. I don't claim to understand that desire. But my amendment would not take away their choice in the matter. In fact, as a consumer, if I get into credit card trouble and want the bureau's help, all I have to do is contact the bureau and give them permission to look at my financial documents. My amendment would also give consumers that ability. As long as the bureau has my written permission as a consumer, they can look at my financial past, present, and future.

Our State offices have that kind of a procedure when they do case work for individuals. Our State offices have a process where they will look into problems that an individual is having with the Federal Government. But in order to do that, they have to get a signed privacy release. That is so we can't just be looking into constituents' problems that we think might be a problem for them without their knowledge or their permission. That is all I am doing with this government bureau, is making sure the consumer knows that bureau will be going through their records with their permission.

In reality, this bill encourages consumers to rely on the government to protect them from bad decisions instead of empowering due diligence. The role of the Federal Government should not be to stand over our shoulders telling us if our decisions are right or good. I was here on the Senate floor just a few short days ago saying that you and I have the inherent freedom to make choices, even the freedom to make bad choices. In America, that is the way it works. Big Brother is not allowed to hang over your shoulder to decide whether you are making a poor decision.

Because of this bill and the actions of the current administration, people are more concerned about their freedoms right now than they ever have been,

and this underlying bill--specifically title X, with its ironic name, ``consumer protection''--would take away those freedoms without this amendment.

The Consumer Financial Protection Bureau created through this bill would suddenly become the most powerful agency within the Federal Government. By placing this bureau within the Federal Reserve, Congress's last ability to oversee this agency would be when the director of the bureau is nominated by the President and the Senate gets to vet that candidate. That is it. Congress would have no oversight of the bureau's budget. Congress would have no oversight of the rules created by the bureau either.

By the way, this bureau would not only have the authority to create its own rules for banks and consumers to follow, it would have the authority to enforce those rules as well. No other agency has that kind of unchecked power. Let me tell my colleagues, unchecked power does not lend itself to accountability.

Why am I so concerned about this supposed consumer protection bureau? I am concerned about our freedoms. I know the Federal Government should not operate with the belief that it always knows best. Protecting consumers doesn't always mean naming advocates to work on their behalf. It also means allowing them the freedom and power to advocate for themselves.

I mentioned this earlier, but I want to illustrate an example of why I am concerned about this bureau's unchecked power and why every citizen in the country should be up in arms, beating down the doors of Congress to keep big government powers from getting even bigger in their lives. The example I am about to give would be small compared to the powers of this proposed bureau.

Let me tell my colleagues, this is not a small issue to the public. Not too long ago, the Transportation Security Administration, TSA, announced its intention to put full body scanning into major airports. Let me remind my colleagues, this was not even in every major airport, only a few. Many may not have seen one of these scanning machines. Travelers go into a three-sided piece of equipment fully clothed, and the machine essentially creates an x-ray-like scan of the traveler. The resulting image from the scan can be used to determine whether someone is carrying an explosive, has objects hidden under their clothing, or merely had a joint replaced. This new step in security was all done in the name of protecting citizens from terrorists. This new measure was for our physical safety.

I have heard from hundreds of Wyoming citizens and from hundreds of citizens across the country desperate not to have the government intrude into their lives even in the name of physical safety from terrorism. There was such a rush of emotion from these folks, anger at the inconvenience and intrusion, nervousness and anxiety that the government would be able to image them for 30 seconds or the possibility that the government could keep the scanned image in a file. I even had some of the more middle-of-the-road folks tell me they just wanted a choice of whether to have the full body scan or simply an in- person screening. That is what is done over most of the country.

My point with this story is that with TSA screening, we are talking about a single image of a person as they travel through the Nation's airports. What the bureau of consumer protection proposes to do in the name of financial security is not just a snapshot of us during a single day of travel. What the bureau proposes to do is scrutinize the transactions of our daily lives, our spending habits, monitor our financial decisions as we plan for retirement, as we plan and spend for our families, and, as consumers, as we make choices on loans for education, vehicles, homes, and any other expenses. This isn't a single step encroaching on privacy like a body scan image. What the bureau proposes to do skips over the privacy boundary. It is not a single scan; it is a life audit.

This bureau may create some much needed protections for consumers, but it could also go much further. Without my amendment, the bureau will be required to collect daily transactional information on every consumer. The government would see every time you needed money for a college loan, for $20 from the nearest ATM. The bureau would require your community bank to not only keep all the information on file but to regularly share that data with the government.

Some may say they don't care if the government knows they buy groceries at Safeway every Tuesday, but I daresay allowing the government to assess and analyze every transaction could easily escalate beyond mundane details and consumer protection to truly having Big Brother watching over us. You may not care about the government knowing your shopping habits or how and when you fill your car with gas, but you will care if the government has the ability to say how, when, and why you spend your own money.

We already give the government control of our tax dollars. I would say that isn't going so well for us. A $12 trillion, almost $13 trillion deficit shows this. So why should the public be OK with allowing the Federal Government to watch over our shoulders, saying whether our financial decisions are OK? The point is that the Federal Government should not have this power, but this bill will be giving it unless we have this amendment.

I have risen to bring light and awareness to the additional, enormous unchecked power that would be given to the bureau of consumer protection in the name of protecting consumers. This power would be given not in the name of protecting us from physical threat or harm but in the name of making decisions for us.

I offer another choice to my colleagues and to the people. This choice allows consumers to let the bureau into their personal lives if they so choose. My amendment would not stop the bureau from existing. My amendment would not prevent the bureau from assisting consumers with their finances or debt. My amendment would simply require the bureau to get written permission from consumers. It is that simple. I urge colleagues to consider the amendment so that we are empowering consumers, not perpetuating big government growth in the name of protecting us from ourselves.

I ask unanimous consent that Senator Shelby be added as a cosponsor to the amendment.

I yield the floor.