Floor Statements

Mr. President, I rise today to ask a pretty straightforward question: Why on Earth is this administration standing by and watching our global competitors gain the upper hand over U.S. businesses?

Last week, the European Union announced that it is taking steps to approve an agreement with South Korea. I have to tip my hat to the Europeans. South Korea represents the 12th largest economy, and Europe's businesses are now one step closer to much greater access to the 12th largest economy in the world. Meanwhile, the United States fails to act on a trade agreement negotiated with South Korea more than 3 years ago, ready for action, actually. Zero action, though, has been taken since this agreement has been finalized by this administration. We all know it is up to the President to send the agreement to Congress for approval before it can go into effect. But that has not happened. On the other hand, other nations are taking advantage of opportunities to save their businesses billions of dollars, while the United States is simply stuck in neutral.

Under our agreement with Korea, most fees our exporters pay-- tariffs--to Korea would be completely eliminated, saving U.S. businesses literally billions of dollars. In fact, nearly 95 percent of our exports of consumer and industrial products would become duty free within 3 years and the rest would be eliminated over time. Nearly two- thirds of our agricultural exports would also become duty free under this agreement, and perhaps most significant is the estimate by the U.S. International Trade Commission itself that our agreement with South Korea would add $10 to $12 billion to our economy.

So what does this mean in real dollars for real businesses? Well, the agreement would increase U.S. exports by about $10 billion annually. The way I look at it, our economy could use a $10 billion boost. Instead, our agreement with South Korea languishes, and we sit on the sidelines while other countries clearly are gaining the upper hand and we are losing this marketplace.

If we could ever enact this agreement, American job creators could fairly compete in the South Korean market. Instead, they are at a distinct disadvantage, and the key to a level playing field--this trade agreement--is collecting dust on a shelf at the White House.

The time for the United States to act on our agreement with Korea is not only now, it should have been months ago. Our failure to act is inhibiting job creation, inspiring our competitors, who are winning, and frustrating our trading partners. Last week was just the latest evidence that our trading partners have lost patience with us and decided to find new dance partners. You see, our trading partners look at this and say: There is no leadership.

In June, I came to the Senate floor to express my concern over reports that an official from the South Korean Embassy said the following:

The U.S. runs the risk of losing the Korean market within a

decade if we cannot get a free trade agreement ratified.

Let me repeat what he said: Within a decade, we lose this market.

Those reports also warned that South Korea was likely to complete a free-trade agreement with the European Union by January of next year. Well, here we are 3 months later, and that is exactly what has happened.

Most recently, upon announcing the new agreement just last week, South Korea's Ministry of Foreign Affairs and Trade released a statement saying that their deal with the EU ``will bring about economic benefits more than a free trade pact signed with the United States.'' You see, they signed this agreement 3 months ahead of schedule, and our trading partners look at all of the dithering, and they are ready to move forward without us.

We should enact our pending trade agreement with South Korea as well as the pending trade agreements with Colombia and Panama as quickly as possible. Increasing our market share in countries around the world will provide greater opportunities for our businesses, allowing them to expand their operations and to hire more people right here at home. You can translate foreign trade to real jobs for real people in this country who are looking for work. This would help get our economy moving again. But for that to happen, the Obama administration must send Congress the pending agreements for an up-or-down vote. That is the next step. That has been the next step for months and months. The President must simply send the agreements for approval.

Unfortunately, when it comes to the pending trade agreements, what we have seen from this administration has been a lot of talk but no action. If you listen to the President's own words, you would think the administration just can't wait to submit the agreements to Congress. Just last week, President Obama said he would like to see congressional approval of the Korean agreement as soon as possible. That is not the first time he has made those statements. Going all the way back to the State of the Union Address in January, President Obama said the following:

We have to seek new markets aggressively just as our

competitors are. If America sits on the sidelines while other

nations sign trade deals, we will lose the chance to create

jobs on our shores.

The President was right about that when he said that so many months ago. In fact, it bears repeating. In the President's own words:

If America sits on the sidelines while other nations sign

trade deals, we will lose the chance to create jobs on our

shores.

So the President of the United States is on record saying that the pending trade agreements would create jobs. They would. But these words ring hollow when you do not follow up with action.

As the U.S. unemployment rate has hovered around 10 percent for most of this year, my question is and I think the question of this nation is, What are we waiting for? Why are we waiting? There is no silver bullet here, but our pending trade agreements would be enormously helpful. They would be the absolute right step in the right direction. You see, when roughly 95 percent of the world's consumers live outside the United States, the global marketplace represents unrivaled opportunities. But, unfortunately, while the Senate has spent most of this year on a massive spending spree, three measures that even the President admits will create jobs are withering on the vine. Our businesses and job creators watch as their global competitors simply run by them. They are sitting on the sidelines faced with uncertainty and high tariffs that bar their entry in any reasonable way to the foreign marketplace, uncertainty about new regulations, uncertainty about our economic recovery, uncertainty about this administration's commitment to these trade agreements.

The lack of any kind of coherent position from the White House is a serious part of the problem. Yes, I have heard the speeches. The President says he wants action. He started saying it a long time ago. Yet he takes no action. I would like to know where this administration stands. The agreements are signed and ready. The ball is in the administration's court. If the President has no intention of sending these agreements to us, say so. Let the American public know this.

Taking action could not be easier: simply drop the agreements in the mail to Congress or have somebody walk them over here. The rest of the world is not wasting any time taking advantage of the opportunities and benefits provided by expanded trade. You see, they need jobs too. And they see the world's population and say: Why would we not want to sell our products to those people? Meanwhile, the United States is depriving our businesses of new markets, our people of jobs and new opportunities. And it delays economic recovery while, unfortunately, our competitors gain the upper hand.

If the President is serious about enacting trade deals to create new jobs, I am ready to work with him. I have said that over and over. I will come to the floor and speak on behalf of these agreements, and I know many of my colleagues are ready to do the same.

I urge the President to send the trade agreements to Congress once again for a ``yes'' vote.

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

Mr. President, I defer to the Senator from Montana.

Mr. President, I rise today to speak on behalf of the amendment I offer, which is called the Johanns amendment. I think and very respectfully I say that the Senator from Montana has really joined the issues here. On one hand, we have this 1099 requirement, which no business in America supports--none. We have this 1099 requirement that every business association in America opposes. On the other hand, we have a health care bill--passed on Christmas Eve, put together with no bipartisan support--for which the President is demanding absolute loyalty of his Members. He doesn't want anything changed. And that is how the issue is joined today.

But I believe today that we in the Senate have an opportunity to take a very clear and very decisive action that shows we mean what we say. A vote to repeal the 1099 paperwork mandate fulfills the promise to clear Federal roadblocks that are stopping small

businesses from expanding and putting Americans to work.

There have been a lot of promises from this administration and even from this Congress to support small businesses, but America is coming to the conclusion that the promises are empty. And this 1099 mandate in the health care bill is a perfect example of why they are giving up hope. You see, our small business owners, our medium-sized business owners, and our large business owners are frustrated with nice speeches that are followed by strangling regulation, new taxes, and really absurd paperwork mandates. Small businesses want to expand, they want to hire workers, and they want more customers. They do not like going to a long-term employee and saying: I have to lay you off. I have had employers talk to me about that literally with tears in their eyes. Yet this tax paperwork mandate--hidden in the health care law, of all things, in section 9006, page 700-something--requires businesses to file a mountain of additional 1099 tax forms. It will consume resources that could otherwise be spent on wages for new employees. It is an undeniable example of the relentless hostility this administration has toward the business community.

The Washington Post accurately summarized it this way:

As small businesses try to plot their recovery, attention

is turning to what many owners consider burdensome policies--

higher taxes, new accounting procedures and health-care

mandates.

That quote goes on to say:

Even as the government tries to help with an array of small

business initiatives, many owners say the intervention is as

much a hindrance to hiring as is the faltering economy.

You see, this type of uncertainty and fear only leads to a paralyzed job market and, of course, anemic growth. Just look at what we have piled on the backs of businesses in the last 18 months. Is it any wonder they are sitting on capital? A so-called economic stimulus that cost taxpayers $862 billion but failed to deliver on the promise of keeping unemployment below 8 percent. Passage of a $2.6 trillion health care bill that, when honestly scored, imposes an employer mandate--an employer mandate--during one of the toughest economic times since the Great Depression. It increases taxes in areas completely unrelated to health care. A financial overhaul that increases small business burdens and cost of compliance. Threats of card check, which the Chamber of Commerce recently estimated will result in 600,000 lost jobs. And, of course, the endless threat of an energy tax. A cap-and-trade proposal that would result in increased production costs, harming America's competitiveness in a global marketplace--shipping jobs to India and China. To make matters worse, the uncertainty about the looming tax increases--the largest in history--only compounds the worries businesses are facing.

All of us traveled during the August break. I traveled across my home State of Nebraska in August, and I heard from hundreds, thousands of constituents. The message was plain and simple. In 14 townhalls across the State, people said over and over again: Mike, go back there and fight for us. And do you know what they were asking me to do? Protect their businesses from Washington. Protect their businesses from Washington.

We have an opportunity to do just that today by fully repealing the 1099 filing requirements. Our job creators will be able to focus their time and energy on hiring and expanding, not dealing with mounds of paperwork.

As the president of the Nebraska Federation of Independent Business put it, and I am quoting from the chart:

You can't operate and grow your business if you are

spending all your time filling out IRS forms and haggling

with auditors.

In fact, there has been an outpouring of support from business owners who are hoping that common sense will rule the day. The steady stream of support letters and key vote letters Senate offices have received is absolutely compelling evidence that our job creators feel very strongly about repealing this nonsensical mandate. The U.S. Chamber of Commerce, National Federation of Independent Business, and the National Association of Manufacturers all support full repeal, to name a few. But I could go on and on--the Farm Bureau, the National Restaurant Association, the Public Accountants Association, veterinarians, florists. There is no stopping here.

I think it is time Washington listen to the concerns of constituents and businesses. They sure did not do that with the health care bill. Here is a sampling of what businesses are saying. From the American Rental Association:

The reporting requirement substantially and

disproportionately increases compliance burdens on all types

of small businesses.

Citizens Against Government Waste says:

With a ballooning $13.4 trillion federal debt and a

national unemployment rate that is around 10 percent,

lawmakers should be focused on providing relief to America's

businesses, encouraging job creation, and spurring economic

growth. The 1099 mandate is a major roadblock, discouraging

them from expanding and hiring.

The National Restaurant Association says this:

This new requirement will impose a significant burden on

restaurants across the country.

The International Franchise Association says:

The paperwork filing burden associated with this provision

will be too great for many small businesses to comply and

could lead to inaccurate filings that may trigger audits and

penalties.

Finally, the Coalition for Fairness in Tax Compliance says:

The Johanns amendment is the only solution that fully

protects small businesses.

They go on to speak to the Nelson amendment, and I am quoting again:

The Nelson amendment does not remove the paperwork and

administrative burden that is created by this new law.

Instead, the Nelson alternative further complicates

compliance responsibilities . . . rather than clarify. The

Nelson amendment actually creates even greater complexity for

those who comply with the law.

Businesses could not be more clear. Today are we going to turn our deaf ear to the job creators in America? Are we going to stand with the President, who does not want anybody fiddling with his health care reform, or are we going to stand with small businesses?

This is a vote to put Americans back to work by freeing up our small businesses to expand and hire. It is as simple as that. Let's not force our job creators to fight the greatest battle they are fighting, which is the battle against Washington and its endless appetite for regulation and spending.

We have talked about support for our small businesses. Let's stand behind them. I want to remind my colleagues that, according to analysis by one business group, this mandate is likely to increase the 1099s that businesses file by a whopping 2000 percent. Let's listen to the loud voices of an endless line of businesses pleading with us to repeal this job-killing mandate.

I hope my colleagues across the aisle will reject the arm twisting that is going on by the White House to preserve at all costs the health care law and every word of it, every dotted i and every crossed t, even at the expense of American jobs. I ask you to vote in favor of the only bipartisan amendment you will vote on today, the Johanns-Lincoln amendment, a bipartisan approach, the only real fix to a 1099 nightmare created by the health care law.

I yield the floor.

Mr. President, reserving the right to object, let me take a moment to analyze what the Senator has proposed.

We have no objection.

May I inquire how much time on this side is left?

I will defer to the Senator from Wyoming for 3 minutes, and yield 3 minutes of my time.

How much time remains?

I yield 3 minutes to the Senator from South Dakota, Mr. Thune.

Mr. President, I yield 3 minutes to the Senator from Missouri, Mr. Bond.

Mr. President, how much time is on this side?

Let me wrap up with something. If the Nelson amendment passes, this is the effect: These are businesses, real people who are going to be hurt because they are left out. In the State of Iowa, 3,334 businesses are left out; in the State of California, 18,960. Over 40,000 businesses, employing 93 million people, are left out.

This talk about gutting the health care reform bill; are you kidding me? The President himself used $250 million of the $500 million this year for purposes other than what was intended by this health care bill.

This is simply a choice between standing with our small businesses or standing with the President on the health care bill against small businesses. I ask my colleagues to vote yes on the Johanns amendment and stand with small businesses.

I yield the floor.

Mr. President, never before in history has an administration claimed to have so much love for small businesses. In fact, the President recently stated:

This is as American as apple pie. Small businesses are the

backbone of the economy. They are central to our identity as

a nation. They are going to lead this recovery.

It seems virtually every news story, every speech, every forum includes something about standing up for small business. Small business owners should love that; right? Yet they are up to their eyeballs with this administration. They are so darn angry they could spit fire. Why? Because they are tired of the President and others saying one thing and then doing another.

A perfect example, a prime example, is the 1099 paperwork mandate in the health care law. Why on Earth would the administration bury businesses in costly paperwork while claiming publicly to support them. I am talking about, of all things, section 9006 of the new health care law. It is buried in the health care bill at page 737. This provision illustrates this administration is

absolutely tone deaf to the plight of small businesses.

It says, if a business purchases more than $600 of goods or services from another business, they will be required to provide the business and the Internal Revenue Service with a 1099 tax form. The new mandate will affect all kinds of businesses, not to mention nonprofits, local governments, and State governments.

For example, I received a letter from the Society of American Florists asking for help. Here is how it will affect their daily business:

Small retail florists . . . will have to issue 1099's to

their wholesalers, landlords and gas stations. Wholesalers

purchasing flowers and plants from growers will need to issue

1099's. Growers who send staff to trade shows will have to

issue a 1099 to the hotel in which those staff members sleep.

Increased paperwork, of course, means increased costs. One small business owner in Nebraska said this will cost him $23,000 a year. That may not sound like much in Washington where we talk about trillions, but to a small business in Nebraska that is a lot of money. It would go a long way to hiring another person.

One would assume there is a great benefit that makes it worthwhile to bury our job creators in this paperwork. But, sadly, this is not even the case. A division of the IRS predicts there will be little benefit and big headaches. The IRS's National Taxpayer Advocate projects high costs to businesses and the IRS, along with a mess of erroneous tax penalties.

To my left is a quote from the IRS. This is what they say: The IRS ``will face challenges making productive use of this new volume of information.''

It goes on:

. . . it is highly likely that the IRS will improperly

assess penalties that it must abate later, after great

expenditure of taxpayer and IRS time and effort.

Not even the IRS wants this information. Simply put, it is an expensive mess without a lot of tax dollars to show for it.

So we are going to stifle job creation. We are going to hammer businesses and ultimately increase incorrect tax penalties, according to the IRS. Now we begin to understand why business owners are spitting mad. It makes no sense whatsoever. That is why my amendment is so terribly important. It fully repeals this section of the law. It is paid for. Countless small businesses have advocated for a full repeal of this language.

According to the National Federation of Independent Business:

It is clear there is bipartisan agreement that the 1099

provision contained in the health care law will have a direct

negative impact on small businesses.

The House Democratic leadership recognized the job-stifling, job- killing provision and proposed a full repeal of this new 1099 requirement. Of 239 House Democrats, all those voting except one supported a full repeal of this portion of the new health care law. House Democrats recognize that the 1099 mandate is absolutely misguided and downright damaging to job creation.

Unfortunately, in the Senate, there is a Democratic-proposed alternative that only partially repeals the mandate, and all it does is add confusion to try to accomplish political cover. Instead of actually solving the problem, it picks winners and losers with thousands of businesses still subject to the job-killing mandate.

Businesses with 26 or more employees are still subject to the mandate--I might ask, what is the wisdom of 26? Why not 25, 24?--for transactions totaling $5,000 or more. So what does that mean? According to the Census Bureau, the Democratic amendment will still subject 415,391 businesses in the United States to a job-killing paperwork mandate that not even the IRS wants, and over 93 million workers are employed by these businesses.

Now, what does that mean to individual States?

Let's take a look. In the State of California, 18,960 businesses would still be subject to the mandate under the side-by-side amendment. Does anybody want to go to these businesses in California and say: We are burying you in paperwork for no useful purpose to try to pay for the health care bill? In Florida, more than 11,000 businesses have more than 25 employers; Texas, 14,208 businesses. I could go on and on. Furthermore, it will continue the paperwork nightmare.

Governments, nonprofits, and businesses will still have to track everything and collect the tax information from their vendors because they do not know if they have made the first purchase going to $5,000 or the last purchase that will not tangle them up in this requirement.

It will also discourage businesses from expanding and hiring. Why would we want to say to businesses: You are OK if you are at 25; but if you get to 26, we hammer you? It makes no sense whatsoever.

One of the most discouraging aspects of the alternative by my friends on the other side is that it favors Wall Street over Main Street. It exempts certain payments from big businesses that have fancy systems to comply with tax laws, but it severely hurts the mom-and-pop enterprises on Main Street.

Businesses that are not exempt will find ways to limit the number of 1099s. They might buy some supplies from the big box retailers and avoid the mom-and-pop retailer on Main Street to avoid the government- imposed 1099 mandate.

As our Chamber of Commerce said:

Governments, nonprofits and businesses would have a choice,

to buy supplies from Joe's Stationary and report to the IRS

or buy from the national chain and not have to report at all

. . . small businesses will become second class citizens

since they will be the ones that will lose out.

You see, with all due respect to my colleague, this side-by-side amendment brings a patchwork of exemptions for businesses to sort through.

Under this amendment, property is exempted. Yet there is no definition of ``property.'' It leaves business owners in the lurch, crossing their fingers, hoping the IRS will exempt transactions. This is not certainty. It is utter confusion.

All businesses will have to track their transactions until the IRS figures out what ``property'' is. Even after ``property'' is defined, it will lead to a patchwork of exemptions. Every time a business owner wants to buy something, they have to call their accountant.

This amendment also claims to soften the blow by exempting credit card transactions.

Mr. President, I ask unanimous consent for another minute.

But the truth is, the IRS has already announced steps to implement that exact same policy. The unfortunate thing about this exemption is that it will cause more problems, not fewer: pay by check, pay by credit card; property, nonproperty; 24 employees versus 26 employers; and on and on. It was all done to finance the health care bill on the backs of American businesses.

I ask my colleagues to support my effort to repeal this job-killing mandate in its entirety when we have an opportunity to vote tomorrow.

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

Madam President, a Senator has an enormous duty when it comes to evaluating a Supreme Court nominee. The duty demands that Senators examine whether the person nominated to the highest Court in the land will uphold and defend the principles contained in the Constitution, refrain from judicial activism, and respect the rule of law.

Some have characterized this duty as one of the most important and far-reaching decisions that a Senator will make, and it is one of the most important decisions in their entire time in the Senate.

As the nomination process for Ms. Kagan began, I went into it with an open mind and a steadfast resolve to evaluate the nominee's qualifications without looking through a partisan lens. In fact, having gone through the confirmation process myself before being sworn in as Secretary of Agriculture, I know what an important process this is.

Senators have a strong duty to take it seriously. Considering Supreme Court judgeships are lifetime appointments, these nominations require even closer scrutiny. Thus, Senators must carefully review any Supreme Court nominee's record and their judicial philosophy.

After this careful review and closely monitoring the hearings before the Judiciary Committee, I came to the conclusion that I could not support this nomination.

The Court is not a place to create laws, and I was not convinced that Ms. Kagan understands this fundamental premise. Additionally, her long career as a political adviser and academic insufficiently prepares her for a lifetime appointment to the country's highest Court.

For example, prior to her position as Solicitor General, Ms. Kagan had never taken a case to trial. I find that remarkable. Since her time as Solicitor General, Ms. Kagan has only argued six cases before the Supreme Court.

Beyond that lack of experience, there are several other areas that concern me about this nomination. Ms. Kagan's view of the second amendment is disturbing to me. As a law clerk for U.S. Supreme Court Justice Thurgood Marshall, she wrote that she was ``not sympathetic''-- ``not sympathetic''--to the legal assertion that the DC gun ban violated citizens' constitutional right to bear arms.

Probably the most recent glimpse into Ms. Kagan's view of the second amendment is her failure to file a brief on behalf of the petitioner in the McDonald case regarding Chicago gun bans. The Supreme Court had already been clear on the DC gun ban, and Chicago's law clearly impacted a variety of Federal laws and programs.

Yet, as Solicitor General, she chose to sit quietly, tacitly casting aside a very important constitutional protection. Her not filing demonstrated the government's lack of interest or concern in protecting this important constitutional right.

Ms. Kagan's lack of action is viewed by many as a bias against the second amendment, as if she were picking and choosing which constitutional provisions she liked. Judges cannot selectively disregard the Constitution when it is convenient or in line with their point of view. So Ms. Kagan's record in this area is enormously troubling for someone who wants to sit on the Supreme Court.

Another very serious concern is her actions as an adviser to President Clinton were instrumental in keeping partial-birth abortion legal in the 1990s. During her time in the White House, the American College of Obstetricians

and Gynecologists privately briefed Ms. Kagan on the partial-birth abortion procedure. Their opinion was clear and lacing equivocation.

According to a memo Ms. Kagan wrote, the medical group said:

In the vast majority of cases, selection of the partial

birth procedure is not necessary to avert serious adverse

consequences to a woman's health. There just aren't many

circumstances where use of the partial-birth abortion is the

least risky, let alone the necessary approach.

The group's public draft statement went on to say:

A select panel convened by ACOG could identify no

circumstances under which the partial birth procedure would

be the only option to save the life or preserve the health of

the woman.

Upon hearing this news, Kagan wrote in a memo that the statement would be ``a disaster.'' Then she edited the document and advised the medical group to include a much different sentence claiming partial- birth abortion ``may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.''

The original sentence and Ms. Kagan's sentence are vastly different, almost complete opposites. Yet Ms. Kagan's language was copied verbatim into the medical organization's final statement.

While Ms. Kagan has no medical credentials whatsoever, she bullied her personal views into the opinion of these medical professionals.

Unfortunately, this assumed expert medical opinion was relied upon heavily in subsequent court cases, including the one that struck down Nebraska's partial-birth abortion ban--my State. U.S. District Court Judge Richard Kopf devoted more than 15 pages of his opinion to the policy statement that Kagan wrote.

Judge Kopf believed the statement was entitled to judicial deference because, ``Before and during the task force meeting, neither ACOG nor the task force members conversed with other individuals or organizations,'' he wrote in his opinion.

It is beyond belief and beyond unfortunate that no one was aware of Ms. Kagan's extensive involvement in drafting the supposedly independent policy statement; otherwise, this horrific procedure may have been banned 10 years earlier.

This type of extreme political policy engineering should give us all great pause and solid reason to question whether Ms. Kagan could serve as a truly neutral umpire on the bench.

My concerns do not stop there. My concerns extend further to her role as dean of the Harvard Law School. Ms. Kagan was confronted with the Solomon amendment, a Federal law that requires schools receiving Federal funds to give equal access to military recruiters. It was very straightforward. Yet she chose to ignore this law and denied military access to Harvard's on-campus recruiting program.

Even the Supreme Court unanimously ruled against Ms. Kagan in this matter. This is especially troubling that Ms. Kagan would openly defy Federal law, especially in a time of war.

Her judgment and her reading of the law was fundamentally flawed, and every one of her potential colleagues agreed she was wrong. That is not a good sign for things to come.

For these reasons and others, I do not have confidence that Ms. Kagan will be able to put aside her personal or political agenda before sitting on the bench.

As the National Right to Life Committee noted:

We anticipate that Ms. Kagan often will treat the U.S.

Constitution not as a body of basic law that truly constrains

both legislators and judges, but rather as a cookbook in

which may be found legal recipes that will allow the

imposition of the policies that Ms. Kagan deems to be

justified or advisable, or that are so regarded by whatever

groups she sees as the enlightened elites on a given subject.

A lifetime appointment to the highest Court in the land is far too important a decision to have so many concerns. When the Senate votes on the nomination of Ms. Kagan, I will vote no. Doing otherwise would ignore the integrity of our Constitution and it would not be in the best interest of this great country.

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

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

Madam President, I ask unanimous consent that the quorum calls during today's morning business be charged equally to both sides.

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

Mr. President, I rise to talk about small businesses. I think we all know and recognize--certainly they do--that small businesses and businesses in general face a mountain of paperwork to comply with a whole host of regulations, most notably our very complex tax laws. Instead of trying to aid that, now Washington is increasing that paperwork mountain through a new 1099 mandate found in, of all places, the new health care bill. This mandate has absolutely nothing-- absolutely nothing--to do with improving health care of this country, and it

should not be a part of that law or any other law, for that matter. Thus, I am offering an amendment to repeal this mandate.

The amendment says no to piles of unnecessary paperwork which the IRS itself admits is going to be virtually useless. Any taxpayer with business income will be required to issue 1099 forms to all vendors from whom they buy more than $600 of goods or services in any year. So now the most routine business expenses will be subject to this new burdensome paper trail.

Let me give my colleagues some examples. A laundromat that buys soap each week would now have to issue a 1099 to their supplier and the IRS at the end of the year. A landscaper who buys lawn fertilizer a couple of times a month will now be forced to issue 1099s to the companies they do business with, and no one is excluded. The law applies equally to businesses and churches and charities and even State and local governments.

A recent cnnmoney.com article suggests that the cost of the new paper trail could literally swamp small companies. One small business organization conducted a survey and found that their members currently average about 10 1099 filings per year. The new rules would push that average to more than 200 filings--200 filings--per year, an almost 2,000-percent increase. Of course, their costs for that would skyrocket.

According to the National Federation of Independent Business:

At $74 per hour, tax paperwork is the most expensive

paperwork burden placed on small businesses by the Federal

Government.

Small businesses have been hit so hard by this recession, they just simply cannot afford this new burden. We need to give them a break. They are imploring us to do something to help them.

According to the National Taxpayer Advocate, which is part of the IRS, this provision will affect--get this--40 million businesses in the United States, including 26 million of our very smallest businesses, our sole proprietorships.

Americans are desperately searching for jobs. They want to work. These businesses should be focused on growing, not be wasting their resources on unnecessary paperwork that the government won't even utilize.

The amendment I introduced is clear. It simply repeals the section of the law requiring the extra paperwork. I might add, it is paid for. It identifies two areas within the health care law to fully offset the repeal of this mandate. First, by lowering the affordability exemption from the new individual mandate from 8 percent to 5 percent, fewer individuals will be subject to the individual mandate.

The new health care individual mandate infringes on individual freedoms of Americans and, in my view, it has constitutional problems. People who did not want to buy government-approved insurance in the first place are compelled to buy it under the new law. Thus, exempting more people, especially the poorest among us, from this absolutely ill- advised mandate is a good thing. These folks may be living paycheck to paycheck and requiring one more thing to come out of that paycheck instead of making the mortgage payment or buying the groceries is not right. Thus, allowing more people to decide for themselves whether they buy health insurance when they look at all their other obligations is a positive.

Let's be clear. My amendment does not restrict these individuals from buying health insurance or signing up for government subsidies. My amendment simply says, if they don't want to, they don't have to.

Second, the new health care law establishes a $15 billion, what I would regard as a slush fund for a long list of potential uses by the Obama administration, including the Community Transformation Grants Program. I generally support wellness programs. I believe in wellness. Who doesn't believe in wellness? However, concern has been raised that this fund will be used for a number of purchases that aren't specifically related to healthy outcomes. Thus, my amendment proposes that this fund not be allocated resources until 2018 to help offset removing this 1099 provision. It decreases the amount in this $15 billion fund; it doesn't eliminate it, but it does give us time to get it right. Besides, this delay gives us more time to ensure that only worthy projects utilize taxpayer money. These outlined pay-fors will cover any government revenue that might be lost by this ill-advised 1099 provision. With record deficits, we must be accountable for tax dollars, so this amendment is fully offset.

Small businesses generate 64 percent of our job growth in this country. We need them. We need them to move us toward economic recovery. Let's send a message that we want them to focus their time and money on hiring workers, on expanding our economy, not filling out unnecessary paperwork that even the IRS acknowledges is so overwhelming it will not be utilized.

My hope is, we will get a vote on this amendment later today, and I ask my colleagues to stand for small businesses, to stand by them, and to send the message to them that we want them creating jobs. I ask my colleagues to support this very commonsense amendment.

I yield the floor and I note the absence of a quorum.

Mr. President, may I inquire how much time is remaining?

Mr. President, I rise to talk about legislation that I intend to introduce today, both as an amendment to the small business bill and as a stand-alone measure.

With the BP oilspill in the headlines, we are rumored to tackle energy legislation later this week. For months, energy legislation has been held up while the majority attempted to find 60 votes for a very unpopular cap-and-trade aspect to this legislation.

But just last week, Americans sought to hear great news when they saw headlines such as ``The Climate Bill is Dead,'' ``Democrats Call Off Climate Bill Effort.''

You have to imagine that around the country, thousands of Americans and small businesses breathed a sigh of relief that they would not be forced to bear yet another financial burden, a hidden tax increase in these trying times.

But, unfortunately, I believe the sigh of relief was premature and here is why. Some in Washington have been keeping a wish list of policies they want to complete after--and I emphasize after--the November elections. At the very top of that list is the national energy tax called cap and trade. So after the elections this November, the American people could be in for quite a surprise.

After voters have cleared out of the polling places and the yard signs are all taken down, after the voting booths have disappeared from the high school gymnasiums and the church basements, after the American people have exercised their constitutional right and made their claims regarding the future direction of this great Nation, well after all that, be warned because the politicians will return to Washington to advance an agenda that they did not have a chance of advancing at all prior to the election.

During this postelection time, we are likely to see what is called a lameduck session. You see, the newly elected will not be here on the floor after the election in that interim until they are sworn in, nor will they be on the House floor. Yet we may be conducting business with many who are not returning to office and therefore are no longer accountable to their constituents; will not stand for another election.

You see, therein lies the danger, a last gasp by this Congress to push an agenda that was dead on arrival prior to the election. But, I suggest today, do not take my word for this. Simply listen to the most senior members of the party that controls the White House, the House, and the Senate. In an interview on Friday, a senior Democratic Senator openly discussed the plan to have cap and trade in the lameduck session. The headline could not be more clear: ``Democrats May Take Up Broad Climate Legislation After Election.''

Why is that the plan, you might ask? Why could not the Senate advance this

measure in the more than a year since the House barely passed it? Well, I will point back to another surprisingly candid interview. According to one Democratic Senator: ``If it is after the election, it may well be that some members feel free and liberated.'' Let me read that again. ``If it is after the election, it may well be that some members are free and liberated.''

Free and liberated, you ask. Well, the answer is as obvious as it is chilling. The plan to do cap and trade in a lameduck is premised on Senators and House Members being free and liberated from the tethers of the American people. That is extraordinary, and it is deeply troubling. But it gets worse because the plan is not simply to wait until after the election. The plan is to add cap and trade in conference or attach it to some other legislation from the House, even though the Senate will not have considered, debated or approved a cap-and-trade bill. Stunning.

Again, do not take my word for it. You can read it in the various news reports. For example, on June 16, Politico reported that the Senate legislative plan for passing cap and trade is to: ``. . . conference the new Senate (Energy) bill with the already-passed House bill in a lame-duck session after the election, so House Members don't have to take another tough vote ahead of midterms.''

On June 28, Energy and Environment Daily reported that House Democratic leadership: `` . . . acknowledged that lawmakers on the conference committee may wind up merging the House cap-and-trade plan with a Senate bill that does not include it.''

On June 30, the Hill newspaper reported: ``House Energy and Commerce Committee Chairman Henry Waxman (D-Calif.) said he would `absolutely' seek to keep greenhouse gas limits alive in a House-Senate conference if the Senate approves energy legislation this summer that omits carbon provisions.''

So the not-so-secret plan is not secret at all. In fact, it is very transparent and clear: Pass an energy bill, any energy bill, pass it out of the Senate so it can be conferenced with the House cap-and-trade bill after the election. My legislation directly addresses this plan in a very concise way. It simply says, if the Senate has not previously approved cap-and-trade legislation, and you try to slip it into law during a lameduck session, then a point of order will lie against the legislation. However, if the Senate has already approved a cap-and- trade bill under regular order, then my amendment would not be triggered.

My amendment, therefore, preserves the opportunity for the Senate to debate this critically important issue. It takes the debate out of the shadows and the back rooms and the conferences onto the Senate floor, in full view of the American people, and it permits the American people to see what is in this bill.

It says, if the Senate has not approved cap and trade, do not slip it in an appropriations bill, do not add it to a defense bill, do not sneak it into another stimulus, and do not hide it in the heaven knows what during a conference committee meeting secretly held who knows where.

I urge my colleagues to look ahead down the road a few months. Members will be here. Maybe they will be ``free and liberated'' from the will of the American people as one Democratic colleague describes it. The shenanigans are already being forecast. Let's stop it here. I ask for support on this very important legislation.

If debate is intentionally circumvented, our business owners and all Americans will be impacted and hurt. They deserve to know what the debate is going to be about in cap and trade, and my amendment provides this assurance.

I yield the floor.

Mr. President, I submit the following notice in writing: In accordance with rule V of the Standing Rules of the Senate, I hereby give notice in writing that it is my intention to move to suspend rule XXII, Paragraph 2, for the purpose of proposing and considering the following amendment to H.R. 5297.

At the appropriate place, insert the following:

Mr. President, I submit the following notice in writing: In accordance with rule V of the Standing Rules of the Senate, I hereby give notice in writing that it is my intention to move to suspend rule XXII for the purpose of proposing and considering the following amendment to amendment No. 4500 to the substitute amendment No. 4499 to H.R. 5297, including germaneness requirements:

SA 4515 can be found in today's Record under ``Text of Amendments.''

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

I thank the Chair.

(The remarks of Mr. Johanns pertaining to the introduction of S. 3622 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

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

Mr. Pesident, I rise today to offer what I consider to be an enormously commonsense piece of legislation that is going to help our Nation's dairy farmers. No one can make up this stuff. If you can believe it, this legislation pertains to the EPA's regulation for oilspills. I said that right. What do oilspills have to do with dairy farmers, you might ask? Having grown up on a dairy farm myself, I didn't think they had much in common at all. But EPA apparently thinks differently on this issue than I do.

The EPA currently enforces what are known as spill prevention control and countermeasure regulations, often referred to as SPCC regulations. The purpose of these regulations is to prevent any oil from discharging into U.S. waterways. It seems to make sense so far. Under SPCC regulations, facilities that store or use oil or fuel must put in place a prevention plan so oil does not spill--that makes sense so far--or, if oil does spill, it is contained safely onsite.

I get all of that. These regulations have been in place since the passage of the Clean Water Act, dating back to the 1970s. We do not want oil spilling in our waterways. The regulations are meant to avoid such spills. I think everybody is probably with me so far.

But there is one problem. Currently, EPA's definition of oil, under SPCC regulation, includes, of all things--milk. If that doesn't make you want to scratch your head, if that does not occur to you as strange--I have to tell you that is in fact what is going on here.

Under the EPA regulations, milk containers could be subject to the same regulations as oil. Milk, which is made up of 80 percent water, which is an excellent source of calcium and protein--milk could be regulated in the same way as oil. That does not make any sense. I am no scientist but I don't think it takes a Ph.D. to see the difference between milk and oil. I have been drinking milk my entire life. As I said, I grew up on a dairy farm.

People drink milk because it is good for them. So these regulations are perplexing just standing on their own. But when we get a little deeper it is even more confusing that EPA is getting involved in the regulation of milk at all.

The Food and Drug Administration already regulates milk storage under what is called the pasteurized milk ordinance. Requiring milk storage facilities to also develop a SPCC plan would, of course, be costly, duplicative, and unnecessary.

Luckily, there is still some time remaining for us to address this issue. In January of 2009, EPA proposed to exempt milk storage from SPCC regulations. Way to go, EPA. If the dairy industry gets this exemption, they will not have to develop a plan to prevent milk from spilling.

Growing up on that dairy farm, I don't recall losing much sleep over a little spilled milk out of the bucket, so that is a step in the right direction. Unfortunately, and you will find this amazing, something that is so vested in common sense has taken over 1\1/2\ years after it was proposed. As I stand here today, the rule is not yet finalized. Every day we wait for an answer from EPA is a day closer to a deadline for compliance, which is November 10 of this year.

So the deadline to develop a spill plan is approaching. But the dairy farmers still do not know whether they are going to need to comply. EPA has been claiming they will extend the deadline until they finalize the rule, but so far we have not seen any action.

If they move at the same pace to extend the deadline as they have taken to finalize the proposed rule, then you can see producers and farmers are in big trouble. It has been over a year now. The dairy industry deserves a simple, straightforward answer from the EPA. This should not be tough, especially in the face of deadlines that are now only a few months away.

Today, to address this problem, I am introducing legislation to compel EPA to act. My bill requires the EPA to finalize the proposed rule exempting milk containers within 30 days. It also protects dairy producers and milk processers by preventing EPA from punishing them until EPA actually provides clarification about what they are doing.

Even though these farmers and rural businesses are facing a deadline in a few months, they still do not know what, if anything, they will need to do to comply, and that is not fair. This commonsense legislation would simply help us get an answer from the EPA. It is very concerning that anyone would ever equate milk handling with oil. That should not be what is happening. Milk and oil should not be in the same category.

You know what. That is just good, old-fashioned farm common sense. But it seems EPA officials are once again out of touch with mainstream America. I encourage those officials to leave the Beltway. There are highways that take you out of Washington. I invite them to visit a Nebraska dairy farm with me. It will not take long for them to see the foolishness of this regulatory effort.

Importantly, I urge them to act. Our Nation's dairy farmers have waited long enough with a cloud of regulatory uncertainty hanging over their heads. But until then, my hope is my colleagues will join me in this commonsense approach and deal with this problem.

I look forward to working with my colleagues.

Mr. Pesident, I rise today to offer what I consider to be an enormously commonsense piece of legislation that is going to help our Nation's dairy farmers. No one can make up this stuff. If you can believe it, this legislation pertains to the EPA's regulation for oilspills. I said that right. What do oilspills have to do with dairy farmers, you might ask? Having grown up on a dairy farm myself, I didn't think they had much in common at all. But EPA apparently thinks differently on this issue than I do.

The EPA currently enforces what are known as spill prevention control and countermeasure regulations, often referred to as SPCC regulations. The purpose of these regulations is to prevent any oil from discharging into U.S. waterways. It seems to make sense so far. Under SPCC regulations, facilities that store or use oil or fuel must put in place a prevention plan so oil does not spill--that makes sense so far--or, if oil does spill, it is contained safely onsite.

I get all of that. These regulations have been in place since the passage of the Clean Water Act, dating back to the 1970s. We do not want oil spilling in our waterways. The regulations are meant to avoid such spills. I think everybody is probably with me so far.

But there is one problem. Currently, EPA's definition of oil, under SPCC regulation, includes, of all things--milk. If that doesn't make you want to scratch your head, if that does not occur to you as strange--I have to tell you that is in fact what is going on here.

Under the EPA regulations, milk containers could be subject to the same regulations as oil. Milk, which is made up of 80 percent water, which is an excellent source of calcium and protein--milk could be regulated in the same way as oil. That does not make any sense. I am no scientist but I don't think it takes a Ph.D. to see the difference between milk and oil. I have been drinking milk my entire life. As I said, I grew up on a dairy farm.

People drink milk because it is good for them. So these regulations are perplexing just standing on their own. But when we get a little deeper it is even more confusing that EPA is getting involved in the regulation of milk at all.

The Food and Drug Administration already regulates milk storage under what is called the pasteurized milk ordinance. Requiring milk storage facilities to also develop a SPCC plan would, of course, be costly, duplicative, and unnecessary.

Luckily, there is still some time remaining for us to address this issue. In January of 2009, EPA proposed to exempt milk storage from SPCC regulations. Way to go, EPA. If the dairy industry gets this exemption, they will not have to develop a plan to prevent milk from spilling.

Growing up on that dairy farm, I don't recall losing much sleep over a little spilled milk out of the bucket, so that is a step in the right direction. Unfortunately, and you will find this amazing, something that is so vested in common sense has taken over 1\1/2\ years after it was proposed. As I stand here today, the rule is not yet finalized. Every day we wait for an answer from EPA is a day closer to a deadline for compliance, which is November 10 of this year.

So the deadline to develop a spill plan is approaching. But the dairy farmers still do not know whether they are going to need to comply. EPA has been claiming they will extend the deadline until they finalize the rule, but so far we have not seen any action.

If they move at the same pace to extend the deadline as they have taken to finalize the proposed rule, then you can see producers and farmers are in big trouble. It has been over a year now. The dairy industry deserves a simple, straightforward answer from the EPA. This should not be tough, especially in the face of deadlines that are now only a few months away.

Today, to address this problem, I am introducing legislation to compel EPA to act. My bill requires the EPA to finalize the proposed rule exempting milk containers within 30 days. It also protects dairy producers and milk processers by preventing EPA from punishing them until EPA actually provides clarification about what they are doing.

Even though these farmers and rural businesses are facing a deadline in a few months, they still do not know what, if anything, they will need to do to comply, and that is not fair. This commonsense legislation would simply help us get an answer from the EPA. It is very concerning that anyone would ever equate milk handling with oil. That should not be what is happening. Milk and oil should not be in the same category.

You know what. That is just good, old-fashioned farm common sense. But it seems EPA officials are once again out of touch with mainstream America. I encourage those officials to leave the Beltway. There are highways that take you out of Washington. I invite them to visit a Nebraska dairy farm with me. It will not take long for them to see the foolishness of this regulatory effort.

Importantly, I urge them to act. Our Nation's dairy farmers have waited long enough with a cloud of regulatory uncertainty hanging over their heads. But until then, my hope is my colleagues will join me in this commonsense approach and deal with this problem.

I look forward to working with my colleagues.

Mr. President, I ask unanimous consent to speak for 10 minutes as in morning business.

Mr. President, I rise to discuss a bill I have introduced because I see a very unfair battle unfolding right in front of us. The battle I foresee is this: In one corner we have the enormous resources of the Federal Government; in the other corner, cities and States with very limited resources, especially in these economic times, but with a good-faith desire to protect their communities.

What I am speaking of today and what my legislation goes to is the Federal Government's use of litigation to insert itself into State and potentially local immigration laws.

I rise with a great deal of knowledge about this. As a former mayor and county commissioner, city council member and Governor, I know what it is like when the Federal Government swoops in and brings its power to bear on an issue. I have seen it from both sides, having also served as a member of the President's Cabinet. I know that when the resources of the Federal Government are used to weigh in with litigation, it is crushing. The administration can send in a team of lawyers and overwhelm the resources of a community or a State. Litigation brings with it a huge financial burden for cities and States. In fact, litigation can and does have a chilling effect on the local decisionmaking process, even if local leaders believe their action in good faith is appropriate and necessary.

I believe that is the exact reaction this administration is hoping to cause among communities and States across the Nation that are considering action on immigration issues.

In this case, I believe litigation is being used to send a warning to other communities, other States that might be considering taking action in this arena.

The administration's claim that the Federal Government has sole authority to enforce immigration laws because of the supremacy clause of the Constitution is, in fact, inconsistent with the President's own internal policies. Just last year, President Obama authored a memo, sent it out to all Federal departments and agencies, requiring serious and careful consideration when using Federal preemption of State laws.

In this memo, dated May 20, 2009, with the subject ``Preemption,'' the President stated:

The purpose of this memorandum is to state the general

policy of my Administration that preemption of State law by

executive departments and agencies should be taken only with

full consideration of legitimate prerogatives of the States

and with sufficient legal basis for preemption.

That seems clear. But the memo went on further to say:

Executive departments and agencies should be mindful that

in our Federal system, the citizens of the several States

have distinctive circumstances and values, and that in many

instances it is appropriate for them to apply to themselves

rules and principles that reflect those circumstances and

values.

Then, finally, the President goes on to say:

It is one of the happy incidents of the federal system that

a single courageous state may, if its citizens choose, serve

as a laboratory; and try novel social experimental

experiments without risk to the rest of the country.

Mr. President, I ask unanimous consent that a copy of this memo be printed in the Record.

So if the use of Federal power to preempt a State requires such an extremely high threshold, how can one reconcile that with the administration's decision to file a lawsuit?

My bill sends a message to the administration that it cannot use the crushing force and threat and reality of litigation to intimidate local officials or to scare them into inaction.

It would allow a State or a municipal government the ability, the right, to recover attorney's fees and other court costs associated with defending a Federal challenge of their immigration laws. In other words, this straightforward legislation just simply levels

the playing field between the huge power of the Federal Government in one corner, as I said, and the right of local communities in States to pass laws to protect their citizens.

It carries this simple message to any administration: If you file a lawsuit and lose, cities and States will not face depleted resources as a result.

My bill ensures that when the Federal Government takes on communities in court, the reasons are pure and based in law or else the impact on our communities will be neutralized.

The administration should focus time and resources on what is the crux of this issue; that is, securing our borders and doing the job and enforcing existing immigration laws and not using litigation as a tool to send a message.

I encourage my colleagues to sign on and cosponsor this commonsense measure and level the playing field for communities when they are forced to defend themselves against the enormous, nearly unlimited power of the Federal Government.