Floor Statements

Mr. President, I rise today to join my colleague from South Carolina, Senator Jim DeMint, in introducing the Freedom for Consumer Choice Act. I am pleased to be an original cosponsor of this legislation, which would require the Federal Communications Commission, FCC, to prove that consumers are being harmed by the lack of choice before it imposes new regulations.

Specifically, the proposed bill would require the FCC to weigh the potential cost of action against any benefits based on a showing of clear and convincing evidence that marketplace competition is not sufficient to adequately protect consumer welfare, and an act or practice is likely to cause substantial injury to consumers. I believe this framework, along with a 5-year sunset on any regulation, would foster a vibrant market for Internet services and content. This legislation is necessary to combat the FCC's latest assault on the Internet.

In April, the District of Columbia Circuit Court of Appeals ruled that the FCC had stepped beyond its authority by regulating the Internet with so-called ``net neutrality'' rules. Yet, it seems the FCC just will not take no for an answer. Just over a month after the appeals court ruled it had overstepped its bounds, the FCC sought to re-categorize broadband services in an effort to more actively regulate the Internet and to establish a set of net neutrality principles. This regulatory overreach could jeopardize hundreds of billions of dollars in investment and accompanying hundreds of thousands of jobs that have resulted from an Internet governed by competition.

The only reason the FCC Chairman and his colleagues are taking this path is because there is no way they can get far-reaching and costly net neutrality legislation through Congress. In fact it was recently reported that 282 Members of Congress, including 74 Democrats, asked the FCC to drop its plans to reclassify broadband. Enough is enough. The Government needs to keep its hands off the Internet so it can prosper and grow, benefiting consumers and our economy alike.

Net neutrality may sound like fairness but it is actually the opposite. Bandwidth is finite, like the finite number of lanes on a highway, and network providers must innovate in order to accommodate the burgeoning traffic. If the FCC takes control of the Internet, we will have the inevitable result of all poorly designed regulations: business decisions prejudiced by politicians and political decisions prejudiced by corporations. The Internet is about the most competitive, efficient and consumer-driven industry in the global economy. There is a time and

place for federal economic regulation, but during a recession is not the time, and the Internet is certainly not the place.

Let me conclude my remarks by pointing out that the Freedom for Consumer Choice Act is intended as a starting point for this debate. No doubt further refinements will be made to this bill during the legislative process. I am committed to moving this legislation forward and hope that my colleagues can join efforts to refine and enact this important bill.

Mr. President, I rise today to express my growing alarm about the excessive amount of government spending that is adding to our national debt at an exponential rate. We simply cannot continue to add these annual trillion dollar-plus deficits to the amount to be repaid by those in generations to come. Today, I am introducing a measure that would ensure that the futures of our children and grandchildren will not be crippled by the reckless spending of those who control Congress and the White House today. After long study of this disturbing trend, I have concluded that the best way to get a handle on this deficit spending is by amending the Constitution by requiring each Congress to put forth a balanced budget.

Amending the Constitution is no small task, nor is it a trifling matter. Though hundreds, if not thousands, of amendments to the Constitution have been proposed, this founding document has been amended only 27 times in our nation's history. Amending it now to deal with overspending may appear to be a monumental undertaking. However, Utahns and other Americans across the nation have spoken loud and clear--no more excessive government spending that will add to the debt to be borne by the next generation.

The liberals in Congress have had their turn over the past couple of years to try to revitalize our economy, and we still remain with trillion dollar-plus deficits coupled with a stagnant unemployment rate of nearly 10 percent.

The economy did not turn sour yesterday. It went south nearly two years ago, and the major accomplishments of the current Administration and its congressional allies is to enact an ineffective $1.1 trillion stimulus bill, an exacerbation of our entitlement crisis through the trillion dollar-plus health care bill, and an invasive and job-killing financial regulatory bill. All of these further harmed our nation's fiscal health.

The measure I am proposing is straightforward. It would simply require Congress to submit a budget where the total outlays could not exceed total revenues. It would require Treasury to use any surplus to pay down the Nation's debt. Any tax increase would have to be approved by two-thirds of the Members of Congress.

I realize that requiring a balanced budget will not necessarily end the outrageous government spending that has occurred over recent years, but it will at least provide Congress with a stronger incentive for fiscal responsibility. Balanced budgets are about more than sound fiscal policy; they are a moral responsibility that government often fails to meet. Individuals and families who live wildly beyond their means face dire consequences. Government should have to live by the same standards, especially since this money belongs to the people. The Constitution is the most important tool by which the people place limits on government and it appears that the Constitution is what it will take for the government to live within its means.

The outstanding public debt is now over $13 trillion. That equates roughly to $42,000 for each American. This year we are estimated to add another $1.3 trillion, which is about what we added last year. This is more than $41,000 added to the debt every second. Most of this spending is going towards increasing the size of the Federal Government, creating and expanding government programs, and providing more entitlements.

Economists agree that our Nation must get our outrageous deficit under control. The nonpartisan Congressional Budget Office recently released its Long-Term Budget Outlook. In this report, the CBO projects that the national debt will reach 62 percent of GDP by the end of this year, the highest since the end of World War II. To put this in perspective, at the end of 2008, our debt was 40 percent of GDP and the historic average has been around 36 percent.

The CBO also projects that deficits will average about $600 billion annually from 2011 through 2020 and the national debt to grow by 67 percent by 2020. Congress needs to act now.

If anyone is still questioning whether this enormous debt poses a threat to our economy, the warning signs are clear. The World Bank cautioned that we could have a double dip recession if the financial markets lose confidence in our ability to repay our debt. Federal Reserve Chairman Ben Bernanke testified before the House Budget Committee and said ``unless we as a nation make a strong commitment to fiscal responsibility, in the long run, we will have neither financial stability nor healthy economic growth.''

On Monday, President Obama gave a speech in the Rose Garden scolding Republicans for what he believed was an effort to prevent the unemployed from receiving benefits. What he has failed

to acknowledge is that both sides--Democrats and Republicans alike-- agree on extending the additional unemployment insurance. What fiscal conservatives object to adding another $30 billion plus to the deficit. The President said ``It's time to stop holding workers laid off in this recession hostage to Washington politics.'' This same logic and rhetoric can be applied to our children and grandchildren who will be held hostage by, and have to pay for, the irresponsible government spending this Congress passes today.

It is time for solutions and not just rhetoric. I believe that we can achieve a balanced budget while promoting economic growth. We have the strongest economy in the world, for now. Let us not have our indebtedness create misery for us and generations to come.

Mr. President, I rise today to join my colleague from South Carolina, Senator Jim DeMint, in introducing the Freedom for Consumer Choice Act. I am pleased to be an original cosponsor of this legislation, which would require the Federal Communications Commission, FCC, to prove that consumers are being harmed by the lack of choice before it imposes new regulations.

Specifically, the proposed bill would require the FCC to weigh the potential cost of action against any benefits based on a showing of clear and convincing evidence that marketplace competition is not sufficient to adequately protect consumer welfare, and an act or practice is likely to cause substantial injury to consumers. I believe this framework, along with a 5-year sunset on any regulation, would foster a vibrant market for Internet services and content. This legislation is necessary to combat the FCC's latest assault on the Internet.

In April, the District of Columbia Circuit Court of Appeals ruled that the FCC had stepped beyond its authority by regulating the Internet with so-called ``net neutrality'' rules. Yet, it seems the FCC just will not take no for an answer. Just over a month after the appeals court ruled it had overstepped its bounds, the FCC sought to re-categorize broadband services in an effort to more actively regulate the Internet and to establish a set of net neutrality principles. This regulatory overreach could jeopardize hundreds of billions of dollars in investment and accompanying hundreds of thousands of jobs that have resulted from an Internet governed by competition.

The only reason the FCC Chairman and his colleagues are taking this path is because there is no way they can get far-reaching and costly net neutrality legislation through Congress. In fact it was recently reported that 282 Members of Congress, including 74 Democrats, asked the FCC to drop its plans to reclassify broadband. Enough is enough. The Government needs to keep its hands off the Internet so it can prosper and grow, benefiting consumers and our economy alike.

Net neutrality may sound like fairness but it is actually the opposite. Bandwidth is finite, like the finite number of lanes on a highway, and network providers must innovate in order to accommodate the burgeoning traffic. If the FCC takes control of the Internet, we will have the inevitable result of all poorly designed regulations: business decisions prejudiced by politicians and political decisions prejudiced by corporations. The Internet is about the most competitive, efficient and consumer-driven industry in the global economy. There is a time and

place for federal economic regulation, but during a recession is not the time, and the Internet is certainly not the place.

Let me conclude my remarks by pointing out that the Freedom for Consumer Choice Act is intended as a starting point for this debate. No doubt further refinements will be made to this bill during the legislative process. I am committed to moving this legislation forward and hope that my colleagues can join efforts to refine and enact this important bill.

Mr. President, I rise today to express my growing alarm about the excessive amount of government spending that is adding to our national debt at an exponential rate. We simply cannot continue to add these annual trillion dollar-plus deficits to the amount to be repaid by those in generations to come. Today, I am introducing a measure that would ensure that the futures of our children and grandchildren will not be crippled by the reckless spending of those who control Congress and the White House today. After long study of this disturbing trend, I have concluded that the best way to get a handle on this deficit spending is by amending the Constitution by requiring each Congress to put forth a balanced budget.

Amending the Constitution is no small task, nor is it a trifling matter. Though hundreds, if not thousands, of amendments to the Constitution have been proposed, this founding document has been amended only 27 times in our nation's history. Amending it now to deal with overspending may appear to be a monumental undertaking. However, Utahns and other Americans across the nation have spoken loud and clear--no more excessive government spending that will add to the debt to be borne by the next generation.

The liberals in Congress have had their turn over the past couple of years to try to revitalize our economy, and we still remain with trillion dollar-plus deficits coupled with a stagnant unemployment rate of nearly 10 percent.

The economy did not turn sour yesterday. It went south nearly two years ago, and the major accomplishments of the current Administration and its congressional allies is to enact an ineffective $1.1 trillion stimulus bill, an exacerbation of our entitlement crisis through the trillion dollar-plus health care bill, and an invasive and job-killing financial regulatory bill. All of these further harmed our nation's fiscal health.

The measure I am proposing is straightforward. It would simply require Congress to submit a budget where the total outlays could not exceed total revenues. It would require Treasury to use any surplus to pay down the Nation's debt. Any tax increase would have to be approved by two-thirds of the Members of Congress.

I realize that requiring a balanced budget will not necessarily end the outrageous government spending that has occurred over recent years, but it will at least provide Congress with a stronger incentive for fiscal responsibility. Balanced budgets are about more than sound fiscal policy; they are a moral responsibility that government often fails to meet. Individuals and families who live wildly beyond their means face dire consequences. Government should have to live by the same standards, especially since this money belongs to the people. The Constitution is the most important tool by which the people place limits on government and it appears that the Constitution is what it will take for the government to live within its means.

The outstanding public debt is now over $13 trillion. That equates roughly to $42,000 for each American. This year we are estimated to add another $1.3 trillion, which is about what we added last year. This is more than $41,000 added to the debt every second. Most of this spending is going towards increasing the size of the Federal Government, creating and expanding government programs, and providing more entitlements.

Economists agree that our Nation must get our outrageous deficit under control. The nonpartisan Congressional Budget Office recently released its Long-Term Budget Outlook. In this report, the CBO projects that the national debt will reach 62 percent of GDP by the end of this year, the highest since the end of World War II. To put this in perspective, at the end of 2008, our debt was 40 percent of GDP and the historic average has been around 36 percent.

The CBO also projects that deficits will average about $600 billion annually from 2011 through 2020 and the national debt to grow by 67 percent by 2020. Congress needs to act now.

If anyone is still questioning whether this enormous debt poses a threat to our economy, the warning signs are clear. The World Bank cautioned that we could have a double dip recession if the financial markets lose confidence in our ability to repay our debt. Federal Reserve Chairman Ben Bernanke testified before the House Budget Committee and said ``unless we as a nation make a strong commitment to fiscal responsibility, in the long run, we will have neither financial stability nor healthy economic growth.''

On Monday, President Obama gave a speech in the Rose Garden scolding Republicans for what he believed was an effort to prevent the unemployed from receiving benefits. What he has failed

to acknowledge is that both sides--Democrats and Republicans alike-- agree on extending the additional unemployment insurance. What fiscal conservatives object to adding another $30 billion plus to the deficit. The President said ``It's time to stop holding workers laid off in this recession hostage to Washington politics.'' This same logic and rhetoric can be applied to our children and grandchildren who will be held hostage by, and have to pay for, the irresponsible government spending this Congress passes today.

It is time for solutions and not just rhetoric. I believe that we can achieve a balanced budget while promoting economic growth. We have the strongest economy in the world, for now. Let us not have our indebtedness create misery for us and generations to come.

Mr. President, I rise today to pay tribute to our dear departed friend and colleague, Senator Robert Byrd of West Virginia. I have been deeply moved by the words of remembrance we have heard here in the Senate this week and I am honored to have been here today as Senator Byrd has lied in repose on the Senate floor. It is a fitting tribute to the man who, over the course of an astounding tenure of 52 years, came to embody the Senate, its traditions, and its rules.

Robert Byrd was born in North Wilkesboro, NC, in 1917. He was valedictorian of Mark Twain High School and, through the course of his life, attended four separate colleges in West Virginia as well as the American University College of Law. In the early days of his career, he was, at one time or another, a grocery clerk, a butcher, and a shipyard welder before beginning his political career in 1946, when he was elected to the West Virginia House of Delegates. After 5 years in the West Virginia Legislature, he was elected to the House of Representatives in 1952, beginning what would be the longest tenure in the history of the U.S. Congress.

Senator Byrd came to the Senate in 1959. He served right up until his death on June 28 of this year. During his time on the Senate, he was known for his skills as a parliamentarian and his knowledge of Senate rules and procedure. He put these abilities to great use, serving in the Democratic leadership--as either the whip or the leader--for nearly two decades. Senator Byrd's ability to use the parliamentary rules to his advantage is legendary. Indeed, I can think of few others who had such a great understanding of what can be an arduous and difficult set of rules and procedures.

His knowledge of the traditions and history of the Senate were also quite noteworthy. In 1989, the bicentennial anniversary of our cherished Constitution, Senator Byrd published a four-volume series on Senate history, which is a definitive work in describing and outlining the storied traditions of this great Chamber. Senator Byrd's love of this body was known to all. He expressed his love for the Senate at every opportunity and much of his time was spent trying to preserve those rules and traditions he held dear.

Mr. President, this Chamber has suffered a great loss. But, my sadness is tempered by the thought that Senator Byrd is now reunited with his wife Erma, to whom he was married for nearly 70 years. I want to express my sincerest condolences to Senator Byrd's family.

Mr. President, 30 years ago today, the Supreme Court of the United States announced its landmark decision in Harris v. McRae, 448 U.S. 297, upholding the constitutionality of the Hyde amendment, which prohibits Federal funding of abortions under the Medicaid Program. That decision made it possible for Congress, by annual enactment of the Hyde amendment, to protect American taxpayers from being forced to fund the destruction of innocent preborn human beings.

The majority opinion, written by Justice Potter Stewart, established three important principles. First, no matter what unwritten right to abortion may be said to exist in our written Constitution, ``it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.'' Second, the Court accepted in full the argument of Solicitor General Wade McCree that the Hyde amendment is rationally related to the interest we all have in preserving nascent human life and encouraging childbirth. Finally, the Court rejected the spurious claims of the Hyde amendment's opponents that the amendment violated the establishment clause of the first amendment because it somehow incorporated into federal law the religious doctrine of the Roman Catholic Church.

In our recent debate over healthcare reform, we often heard that because the Hyde amendment is already ``settled law,'' there was no need for specific provisions to ban taxpayer subsidies for abortion through the health insurance exchanges or other features of the legislation. That argument, of course, was wrong. The Hyde amendment affects the appropriations that fund the Departments of Labor and of Health and Human Services. The vast health care bureaucracy created by this new legislation will exist outside of those departments. Time will tell whether those who argued so strongly that the Hyde amendment is settled and ``good law'' will nonetheless challenge it again in the future.

Let's be honest about a fundamental point: change in our health care system provides another opportunity for abortion advocates to claim that abortion is health care that must be funded by the taxpayers. That claim must be resisted and defeated, just as it was resisted and defeated in Harris v. McRae.

Were he still among us, our dear and esteemed colleague Henry Hyde would have reminded our colleagues of this, with an eloquence we cannot muster. The amendment bearing his name, after all, did not become law by accident; nor did it survive other than by the heroic efforts of Henry Hyde and a small cadre of pro-life attorneys who persuaded the Department of Justice to make the very arguments critical to successfully defending the Hyde amendment in court.

Henry Hyde was vilified at the time for his amendment, and for his unwillingness to yield or compromise on its principles. Investigators for the plaintiffs in Harris followed the Congressman to Mass, and then argued to the Federal district court in Brooklyn that his amendment was motivated by his religion. What a scandal--that a Congressman's faith would motivate his work.

Henry, of course, did more than simply introduce and achieve passage of his amendment. That alone would have been heroic. But he also entered the litigation challenging his amendment as an intervening- defendant, joined by former Senator and now-Judge James L. Buckley, Senator Jesse Helms, and others, to ensure that the amendment would receive the most vigorous defense in court.

His New York lawyers, Lawrence Washburn and Gerald Bodell, were joined by the superb legal team at Americans United for Life Legal Defense Fund, a fledgling Chicago-based office that suddenly found itself in the biggest case in its short existence. The AUL lawyers, including Northwestern University law professor Victor G. Rosenblum, eminent Chicago trial lawyer Dennis Horan, and AUL staff attorneys Patrick Trueman and Thomas Marzen, were pivotal in framing the legal arguments that prevailed in Harris. They simultaneously represented intervening defendants in Williams v. Zbaraz, defending an Illinois version of the Hyde amendment. In Williams, named for AUL's clients Dr. Jasper F. Williams and Dr. Eugene F. Diamond, Professor Rosenblum eloquently argued to the Supreme Court that neither due process nor equal protection required government at any level to treat abortion on a par with the life-giving alternative of childbirth.

The victories in Harris and Williams remain the most significant pro- life legal victories of our lifetimes. But, until the Hyde amendment becomes a part of the United States Code rather than an annual appropriations amendment, so that it covers a government programs and expenditures, we must continue to make the same vigilant effort that made the victories in those cases possible. AUL was a key partner as I and others in Congress fought to put true Hyde-type language in the health care legislation. Undaunted at the loss in Congress, AUL has turned its attention to the States, helping to draft legislation allowing States to ``opt-out'' of coverage for abortion through the insurance exchanges, and to take other steps to ensure that health care reform does not undermine the principles of the Hyde amendment.

Many of the courageous warriors who first defended those principles three decades ago have passed from our midst: my friends Henry Hyde and Jesse Helms, attorneys Dennis Horan and Tom Marzen, and Dr. Jasper Williams. Thankfully, some of the young lawyers who worked with them such as Carl Anderson, Robert Destro, and Paige Comstock Cunningham, remain active pro-life leaders today. Meanwhile, the ranks of young lawyers and students eager to follow in the footsteps of these legal pioneers continues to grow. That is what trailblazers do, they lead the way so that others may follow and continue the fight. May their efforts be blessed, and this Nation move swiftly to the day when the lives of the unborn receive full legal protection.

Madam President, next week the Judiciary Committee will hold its hearing on the nomination of Elena Kagan to replace Supreme Court Justice John Paul Stevens. The Senate's role of advice and consent, especially for Supreme Court Justices, is one of our most important constitutional duties. I wish to share a few thoughts about how I will approach this task.

America's Founders designed the judiciary to be, as Alexander Hamilton described it, the weakest and least dangerous branch of government. Things have not worked out as planned. The judiciary today is, instead, the most powerful, and potentially the most dangerous, branch of our government. Rather than being accountable to the people by being subject to the people's Constitution, activist judges often make the people accountable to them by seeking to control the people's Constitution. My objective in this confirmation process is to find out which kind of Justice Ms. Kagan would be if confirmed to the Supreme Court.

Judicial qualifications fall into two categories: legal experience and judicial philosophy. Legal experience is a summary of what a nominee has done in the past and can be described in a resume or on a questionnaire. Judicial philosophy describes how a nominee will approach the task of judging in the future. It is harder to determine, but I believe it is much more important.

Let me first look at Ms. Kagan's legal experience. I have never believed that judicial experience is necessary for Supreme Court service or, to put it another way, I have never believed it to be a disqualification if you do not have judicial experience. In fact, 39 Supreme Court Justices--about one-third--had no previous judicial experience. What they did have, however, was extensive experience in the actual practice of law, an average of more than 20 years. These are Justices such as George Sutherland, one of my predecessors as Senator from Utah, who practiced for 23 years, or Robert Jackson, who practiced for 21 years and served as both Solicitor General and Attorney General. In other words, Supreme Court Justices have had experience behind the bench as a judge, before the bench as a lawyer, or both.

Ms. Kagan has neither. She spent only 2 years as a new associate in a large law firm. She never litigated a case or argued before any appellate court before becoming Solicitor General last year.

And her work in the Clinton administration was focused on policy and legistation. As the Washington Post described it recently, Ms. Kagan would bring to the Court experience ``in the political circus that often defines Washington.'' Some people may see little difference between the legal and the political, but I do and am concerned about blurring the lines even further.

Last week, one of my Democratic colleagues with whom I serve on the Judiciary Committee talked about Ms. Kagan's qualifications and claimed that some Senators question her fitness for the Supreme Court solely because she has never been a judge. No one has made that argument. This Democratic colleague identified Justices Byron White, William Rehnquist, Louis Brandeis, and Lewis Powell as among those with no prior judicial experience. These Justices had practiced, respectively, for 14, 16, 37, and 39 years and Justice Powell had also been president of the American Bar Association. There really is no comparison.

So on this first element of legal experience, we have to be honest about what the record shows. Unlike other Supreme Court nominees, Ms. Kagan has no judicial experience and virtually no legal practice experience. That leaves her academic and political experience. The Democratic Senator I mentioned identified as among Ms. Kagan's strongest qualifications for the Supreme Court her experience crafting policy and her ability to build consensus. Judges, however, are not supposed to be crafting policy, and consensus-building only begs the question of what a consensus is being built to support.

This relatively light record of legal experience only places more importance on judicial philosophy, the other qualification for judicial service. Frankly, finding reliable clues about judicial philosophy is often harder in an academic and political record such as Ms. Kagan's than in a judicial record. This is especially true when, like Ms. Kagan, a nominee has rarely written directly about the topic. This does not mean that reliable clues do not exist, just that they are harder to find. I have to take Ms. Kagan's record as it is because I have to base my decision on evidence, not blind faith.

Judicial philosophy refers to the process of interpreting and applying the law to decide cases. That is what judges do, but they can do it in radically different ways. Notice I said this is about the process of deciding cases, not the results of those cases. Many people, including some of my Senate colleagues and many in the media, focus only on the results that judges reach, apparently believing that the political ends justify the judicial means.

That is the wrong standard for evaluating either judicial decisions or judicial nominees. Politics can focus on the results, but the law must focus on the process of reaching those results. Rather than the desirable ends justifying the means, the proper means must legitimate the ends. It makes no difference which side wins, which political interest comes out on top, or whether the result can be labeled liberal or conservative. If the judge correctly interprets and applies the law in a particular case, then the result is correct.

So I wish to pin down, as best I can, what kind of Justice Ms. Kagan would be. Will the Constitution control her or will she try to control the Constitution? Will she care more about the judicial process or the political results? As I said, those clues come primarily from her record, secondarily from next week's hearing. So let me briefly focus on a few areas of Ms. Kagan's record and mention some questions that need to be answered and some concerns that need to be addressed.

First, while in graduate school, Ms. Kagan wrote that the Supreme Court may overturn previous decisions ``on the ground that new times and circumstances demand a different interpretation of the Constitution.'' Not a different application, mind you, but a different interpretation. She wrote quite candidly that it is ``not necessarily wrong or invalid'' for judges to ``mold and steer the law in order to promote certain ethical values and achieve certain social ends.''

In a 1995 law journal article, she agreed that in most cases that come before the Supreme Court, the judge's own experience and values become the most important element in the decision. In her words, ``many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.'' That sounds a lot like President Obama, who said as a Senator that judges decide cases based on their own deepest values, core concerns, the depth and breadth of their empathy, and what is in their heart. If that is too results oriented, Ms. Kagan wrote, so be it.

While Ms. Kagan has not herself been a judge, those judges she has singled out for particular praise have this same activist judicial philosophy. In a tribute she wrote for her mentor Justice Thurgood Marshall, for example, she described his judicial philosophy as driven by the belief that the role of the courts and the very purpose of constitutional interpretation is to ``safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission. . . . And however much some recent Justices have sniped at that vision, it remains a thing of glory.''

In 2006, when she was dean of Harvard Law School, Ms. Kagan praised as her judicial hero Aharon Barak, who served on the Supreme Court of Israel for nearly 30 years. She called him ``the judge or justice in my lifetime whom I think best represents and has best advanced the values of democracy and human rights, of the rule of law, and of justice.'' That is not simply high praise, but the highest praise possible, for she said that Justice Barak was literally the very best judge anywhere during her entire lifetime in representing and advancing the rule of law.

Who is this judge who, for Ms. Kagan at least, is literally the best representation of the rule of law? Judge Richard Posner has described Justice Barak as ``one of the most prominent of the

aggressively interventionist foreign judges'' who ``without a secure constitutional basis. . .created a degree of judicial power undreamt of by our most aggressive Supreme Court justices.'' Judge Posner concluded that to Justice Barak, ``the judiciary is a law unto itself.''

These and other examples, over a period of more than two decades, fit consistently together. They indicate that for most of her career, Ms. Kagan has endorsed, and has praised others who endorse, an activist judicial philosophy. She appears to have accepted that judges may base their decisions on their own sense of fairness or justice, their own values of what is good and right, their own vision of the way society ought to be. This activist philosophy, she has said, is a thing of glory and best represents the rule of law. That is what her record shows, and we will have to see what next week's hearing uncovers on this important subject.

There are also some specific subjects or controversies that must be explored. These might have been less important if Ms. Kagan did not have the record I just described. If she had not endorsed and praised judges making decisions based on their personal values and objectives, then evidence of her own personal values or objectives would obviously be less relevant. But as Ms. Kagan said in a 2004 interview, since a judge's personal attitudes and views make a difference in how they reach their decisions, ``the Senate is right to take an interest in who these people are and what they believe.''

I wish to note two of the areas in which it appears Ms. Kagan's personal or political views have driven her legal views. The first is abortion. When she clerked for Justice Marshall, she recommended against the Court reviewing the decision in a case titled Lanzaro v. Monmouth County Correctional Institutional Inmates. The U.S. Court of Appeals for the Third Circuit held that prison inmates have a right to elective abortions and that by refusing to pay for them, the county violated the Constitution's eighth amendment ban on cruel and unusual punishment. Ms. Kagan properly rejected this bizarre holding, even calling parts of the analysis ludicrous. Yet she urged against the Court reviewing this decision because, as she put it, ``this case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights.'' Broader policy objectives seemed more important than even reviewing a ludicrous constitutional decision.

The record also shows that later Ms. Kagan was a key player behind the Clinton administration's extreme abortion policy. In May 1997, after President Clinton had vetoed the Partial Birth Abortion Ban Act, Ms. Kagan wrote a memo recommending that he support the substitutes for the ban being offered by Senators Daschle and Feinstein. She recommended this solely for political reasons, because it might attract some votes from Senators who would otherwise vote to override his veto. Had that strategy worked, of course, the substitutes would not have passed and partial birth abortion would have remained legal. The barbaric practice of partial-birth abortion would have remained legal.

Significantly, however, Ms. Kagan noted that the Office of Legal Counsel had concluded that these substitute amendments were unconstitutional under the Supreme Court's Roe v. Wade decision. There is no indication that she disagreed with this conclusion. The point is that Ms. Kagan urged a purely political position on abortion that was at odds with what the Clinton administration then believed the Constitution required. Once again, it looks as though politics trumped the law.

Another controversy involved the military's ability to recruit at Harvard Law School during Ms. Kagan's tenure as dean. Ms. Kagan made her personal views and values as plain as anyone could make them, saying repeatedly that she abhorred the military's policy with regard to homosexuals and calling it a profound wrong and a ``moral injustice of the first order.'' Federal law, known as the Solomon amendment, denies Federal funds to schools with policies or practices that have the effect of preventing military recruiters the same access to campus or to students that other employers have. A group called the Forum for Academic and Institutional Rights, or FAIR, challenged the law in court.

Ms. Kagan first joined a legal brief filed in support of FAIR's challenge with the U.S. Court of Appeals for the Third Circuit. Within 24 hours of the court enjoining enforcement of the Solomon amendment, Ms. Kagan again banned military recruiters from access to Harvard's Office of Career Services. She was not required to do this because the Third Circuit does not include Massachusetts. She kept the ban in place even after the Third Circuit stayed its own injunction while it was being appealed to the Supreme Court. In other words, Ms. Kagan denied military recruiters access even though the law still required access. She could have opposed the military's policy in various ways, but chose to do so in a way that undermined military recruitment during wartime. And the recruitment ban was lifted only after the president of Harvard University stepped in and overrode Ms. Kagan's decision.

Ms. Kagan then joined a group of law professors filing a brief with the Supreme Court. To its credit, FAIR actually agreed with the government about the proper reading of the Solomon amendment. But Ms. Kagan and her fellow professors urged the courts to read the statute in an artificial and unnatural way that actually contradicted both the plain terms of the statute and the position of the very party on whose behalf she had filed her brief. The statute required that the military be treated the same as employers who are granted access to campus. Ms. Kagan argued instead that the military be treated the same as employers who are denied access to campus. Not surprisingly, the Supreme Court unanimously rejected Ms. Kagan's position, saying that her group of law professors simply misinterpreted the statute in a way that would literally negate it and make it ``a largely meaningless exercise.'' She did everything she could, including defying Federal law and making legal arguments that even Justice Stevens could not accept, to pursue her political objective.

In closing, I wanted to come to the floor today to describe for my colleagues the approach I am taking to evaluate Ms. Kagan's nomination to the Supreme Court. The most important qualification for the position is her judicial philosophy, the kind of Justice she will be. The evidence for her judicial philosophy comes primarily from her record, and I have touched on some areas of concern that must be examined more closely.

This is a grave decision. It is about more than simply one person. The liberty we enjoy in America requires that the people govern themselves and that, in turn, depends upon the kind of Justices who sit on the highest court in the land. George Washington said this in his farewell address: ``The basis of our political systems is the right of the people to make and alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.'' Judges who bend the Constitution to their own values and who use the Constitution to pursue their own vision for society take this right away from the people and undermine liberty itself.

I yield the floor.

Mr. President, today I rise to express my support as a cosponsor of the National Cyber Infrastructure Protection Act. At long last, our Nation is finally recognizing the increasing danger posed by cyber threats and the devastating disruption that they can cause because of the interdependent nature of information systems that support our Nation's critical infrastructure.

As a Nation, we must develop a strategy that provides a strategic framework to prevent cyber attacks against America's critical infrastructures. As a government, we must reduce national vulnerability to cyber attacks and minimize the damage and recovery time from cyber attacks should they occur. I believe that the legislation that my colleague from Missouri and I are introducing today will provide a sure foundation to put our Nation on a path to begin to address cyber vulnerabilities.

The challenge to protect cyberspace is vast and complex and ultimately requires the efforts of the entire government. As a Nation, we must recognize that cyber threats are multi-faceted and global in nature. These threats operate in an environment that rapidly changes. The sharing of information between government and the private sector is crucial to our overall national and economic viability.

Last January, McAfee issued a report that concluded that the use of cyber attacks as a strategic weapon by governments and political organizations is on the rise. The U.S. is the most targeted nation in the world--and our military, government, and private sector systems are often attacked with impunity. Our Nation has experienced large-scale malicious cyber intrusions from individuals, groups and nations. These attacks have dramatically increased in number and complexity.

Just last year, Google and over 30 other companies linked to our energy, finance, defense, technology and media sectors fell prey to costly cyber attacks. Too many nations either directly sanction this activity or give it tacit approval by failing to investigate or prosecute the perpetrators. Many of the major incidents are presently coming out of Russia and China.

The National Cyber Infrastructure Protection Act would establish a National Cyber Center, housed within the Department of Defense. The mission of the National Cyber Center would be to serve as the primary organization for coordinating Federal Government defensive operations, cyber intelligence collection and analysis, and activities to protect and defend Federal Government information networks. Critical in achieving this mission would be the sharing of information between the private sector and federal agencies regarding cyber threats. This center would be led by a Senate-confirmed director modeled after the Director of National Intelligence position. The director reports directly to the President and would coordinate cyber activities to protect and defend Federal Government information networks. The director would serve as the President's principal adviser on such matters and developing policies for securing Federal Government information networks.

In our Nation today, over 3/4 of our Nation's critical infrastructure is under the control of the private sector. One such example is smart grid technology for power grids. The Smart Grid will use automated meters, two-way communications and advanced sensors to improve electricity efficiency and reliability. The nation's utilities have embraced the concept and are installing millions of automated meters on homes across the country. However, cyber security experts have determined that some types of meters can be hacked. As we rely on technology developed by private industry, we must ensure that we harden this technology against threats that could leave our citizens vulnerable.

The opening salvos of future conflicts will be launched in cyberspace. In 2008, we saw this occur when Russian forces launched a cyber attack on Georgian defense and information networks. The Russians essentially blinded the Georgian military during the South Ostessia conflict. Our reliance on technology and integrated networks certainly makes our military and critical infrastructure more efficient. However, that efficiency can have its price in the form of cyber vulnerability.

As Americans, we must be prepared to fight back should we be attacked. We must also harden our networks against the tools that criminals use to steal a person's identity and a company's trade secrets. These are the same tools that today can and will be used by terrorists in the future to attack and erode our infrastructure and defense systems. The stakes are too high and the risks are too grave to delay. If we don't move now to protect our national cyber infrastructure, the consequences to our economy, security and citizens could be dire. This is a fight we must win. The only way to win is to be prepared.

Mr. President, today I rise to express my support as a cosponsor of the National Cyber Infrastructure Protection Act. At long last, our Nation is finally recognizing the increasing danger posed by cyber threats and the devastating disruption that they can cause because of the interdependent nature of information systems that support our Nation's critical infrastructure.

As a Nation, we must develop a strategy that provides a strategic framework to prevent cyber attacks against America's critical infrastructures. As a government, we must reduce national vulnerability to cyber attacks and minimize the damage and recovery time from cyber attacks should they occur. I believe that the legislation that my colleague from Missouri and I are introducing today will provide a sure foundation to put our Nation on a path to begin to address cyber vulnerabilities.

The challenge to protect cyberspace is vast and complex and ultimately requires the efforts of the entire government. As a Nation, we must recognize that cyber threats are multi-faceted and global in nature. These threats operate in an environment that rapidly changes. The sharing of information between government and the private sector is crucial to our overall national and economic viability.

Last January, McAfee issued a report that concluded that the use of cyber attacks as a strategic weapon by governments and political organizations is on the rise. The U.S. is the most targeted nation in the world--and our military, government, and private sector systems are often attacked with impunity. Our Nation has experienced large-scale malicious cyber intrusions from individuals, groups and nations. These attacks have dramatically increased in number and complexity.

Just last year, Google and over 30 other companies linked to our energy, finance, defense, technology and media sectors fell prey to costly cyber attacks. Too many nations either directly sanction this activity or give it tacit approval by failing to investigate or prosecute the perpetrators. Many of the major incidents are presently coming out of Russia and China.

The National Cyber Infrastructure Protection Act would establish a National Cyber Center, housed within the Department of Defense. The mission of the National Cyber Center would be to serve as the primary organization for coordinating Federal Government defensive operations, cyber intelligence collection and analysis, and activities to protect and defend Federal Government information networks. Critical in achieving this mission would be the sharing of information between the private sector and federal agencies regarding cyber threats. This center would be led by a Senate-confirmed director modeled after the Director of National Intelligence position. The director reports directly to the President and would coordinate cyber activities to protect and defend Federal Government information networks. The director would serve as the President's principal adviser on such matters and developing policies for securing Federal Government information networks.

In our Nation today, over 3/4 of our Nation's critical infrastructure is under the control of the private sector. One such example is smart grid technology for power grids. The Smart Grid will use automated meters, two-way communications and advanced sensors to improve electricity efficiency and reliability. The nation's utilities have embraced the concept and are installing millions of automated meters on homes across the country. However, cyber security experts have determined that some types of meters can be hacked. As we rely on technology developed by private industry, we must ensure that we harden this technology against threats that could leave our citizens vulnerable.

The opening salvos of future conflicts will be launched in cyberspace. In 2008, we saw this occur when Russian forces launched a cyber attack on Georgian defense and information networks. The Russians essentially blinded the Georgian military during the South Ostessia conflict. Our reliance on technology and integrated networks certainly makes our military and critical infrastructure more efficient. However, that efficiency can have its price in the form of cyber vulnerability.

As Americans, we must be prepared to fight back should we be attacked. We must also harden our networks against the tools that criminals use to steal a person's identity and a company's trade secrets. These are the same tools that today can and will be used by terrorists in the future to attack and erode our infrastructure and defense systems. The stakes are too high and the risks are too grave to delay. If we don't move now to protect our national cyber infrastructure, the consequences to our economy, security and citizens could be dire. This is a fight we must win. The only way to win is to be prepared.

Madam President, I thank my colleague, and I appreciate being here with my two colleagues from Wyoming and also Idaho. Let me start by applauding Senator Murkowski for her strong leadership on this issue, and I stand squarely behind her effort.

To summarize what has already been laid out, the EPA has released findings that, No. 1, human carbon emissions contribute in a significant way to global warming, and, No. 2, global warming, which has been going on for about 10,000 years now, is an endangerment to humans.

The EPA's foundation for its proposal relies on the assumption that both of these findings are the truth.

Madam President, I was sorely disappointed but not too surprised when I learned the EPA based its ``findings'' almost entirely on the work done by the United Nations Intergovernmental Panel on Climate Change-- or the IPCC. I have no problem with much of the science produced by the IPCC scientists, but I have a real problem with the way that science is summarized by the political leaders at the IPCC and by the conclusions drawn by those same political leaders in the IPCC's Summary for Policymakers, which is not a science document.

It becomes immediately evident that the EPA relies heavily on these political summaries and conclusions rather than actual science produced by the IPCC because we now have abundant proof that a wide gulf exists between what the science indicates and what the political leaders of the IPCC pretend that it indicates.

But I am not asking anyone to take my word for this. Instead, let's listen to what the IPCC scientists are saying about the conclusions that politicians at the IPCC have been selling to policymakers. Here is what Dr. John T. Everett has to say. He was an IPCC lead author and expert reviewer and a former National Oceanic and Atmospheric Administration senior manager. He says:

It is time for a reality check. Warming is not a big deal

and is not a bad thing. The oceans and coastal zones have

been far warmer and colder than is projected in the present

scenarios of climate change.

Well, there is one of the IPCC's top scientists saying that the warming we are experiencing is not an endangerment.

Let's hear another scientist, Dr. Richard Tol. He was the author of three full U.N. IPCC working groups and the Director of the Center for Marine and Atmospheric Science. He says:

There is no risk of damage [from global warming] that would

force us to act injudiciously.

As an illustration, he explains:

Warming temperatures will mean that in 2050 there will be

about 40,000 fewer deaths in Germany attributable to cold-

related illnesses like the flu.

What is that, Madam President? Here we have another top scientist at the IPCC telling us that warming will actually save lives, not endanger them?

Dr. Oliver W. Frauenfeld, a contributing author to the U.N. IPCC Working Group 1 Fourth Assessment Report, sends those of us who are policymakers a serious warning. He says:

Only after we identify these factors and determine how they

affect one another, can we begin to produce accurate models.

And only then should we rely on those models to shape policy.

I hope my colleagues in the Senate are listening today because these U.N. IPCC scientists are speaking directly to us. I wonder at what cost to our economy and our competitiveness will we as policymakers continue to ignore the actual scientists at the IPCC? There is nowhere near a scientific consensus on either one of the EPA's ``findings'' that humans are causing warming or that warming is necessarily bad for the environment or for humankind.

MIT climate scientist, Dr. Richard Lindzen, another IPCC lead author and expert reviewer, dispels the notion there is a scientific consensus in favor of drastic climate policy. He explains:

One of the things the scientific community is pretty agreed

on is those things will have virtually no impact on climate

no matter what the models say. So the question is do you

spend trillions of dollars to have no impact? And that seems

like a nobrainer.

Another top IPCC scientist and lead author was Dr. John Christy. He explained that the U.N. IPCC process had become corrupted by politics. He says:

I was at the table with three Europeans, and we were having

lunch. And they were

talking about their role as lead authors. And they were

talking about how they were trying to make the report so

dramatic that the United States would just have to sign that

Kyoto Protocol.

The politicization at the U.N. was so egregious that Dr. Christopher W. Landsea, U.N. IPCC author and reviewer and expert scientist with NOAA's National Hurricane Center, pronounced:

I personally cannot in good faith continue to contribute to

a process that I view as both being motivated by pre-

conceived agendas and being scientifically unsound.

Now, Madam President, there are many more U.N. and government scientists who have publicly expressed their professional opinions that the IPCC political projections are overblown and not supported by the science. I have put together a sampling of their quotations in a report called the ``UN Climate Scientists Speak Out on Global Warming.'' It is available for download on my Climate 101 link on my Web page. I ask unanimous consent to have printed in the Record two documents relating to climate change.

Madam President, I would like to address an issue that has been very carefully ignored by the EPA; that is, the--get this word-- ``benefit'' Americans can expect from the EPA's actions.

As Senators, not many of us are scientists, but each of us is a policymaker. As policymakers, we are expected to fully analyze the costs and benefits of any proposal that comes before us.

The endangerment the EPA points to is the warming we are supposedly causing. If warming is the endangerment, then the benefit is the amount of warming the regulations would avoid. Thanks to the IPCC, we have all the numbers and assumptions we need to be able to determine just how much warming we could avoid for the amount of carbon emissions the EPA can stop.

Let's go on the assumption that the EPA will successfully reduce human CO2 emissions in this country by 83 percent over the next century. According to the alarmist and some would say overblown assumptions at the U.N. IPCC, Americans can expect a cooling benefit of somewhere between 0.07 and 0.2 degrees Celsius after a full 100 years of effort. That is right, we are being asked to give up trillions of dollars in economic activity, send all manufacturing activity overseas, give up millions of jobs, and put basic human activities under the control of the EPA, all for a benefit that cannot be measured on a household thermometer after 100 years of sacrifice and pain.

The EPA tells us our human carbon emissions are leading to a general catastrophe, but then we find out that if we do what they say, it will make no real difference. So I ask the EPA Administrator this question: Have you done a real risk-benefit analysis of these proposed carbon emission regulations? I don't want to hear all the scary scenarios about general global warming; I want to know the actual risk associated with an 0.07 to 0.2 degree decrease in temperature over 100 years because that is what we are talking about here. That is the analysis I want to see because when you stack up the astounding costs on the scale against such a tiny benefit, you have the most lopsided and obvious failure of a cost-benefit analysis I have ever seen.

I notice my other two colleagues are here. I have gone on a little longer than I wanted to.

Exhibit 1

[From National Geographic News, July 31, 2009]

Sahara Desert Greening Due to Climate Change?

(By James Owen)

Desertification, drought, and despair--that's what global

warming has in store for much of Africa. Or so we hear.

Emerging evidence is painting a very different scenario,

one in which rising temperatures could benefit millions of

Africans in the driest parts of the continent.

Scientists are now seeing signals that the Sahara desert

and surrounding regions are greening due to increasing

rainfall.

If sustained, these rains could revitalize drought-ravaged

regions, reclaiming them for farming communities.

This desert-shrinking trend is supported by climate models,

which predict a return to conditions that turned the Sahara

into a lush savanna some 12,000 years ago.

green shoots

The green shoots of recovery are showing up on satellite

images of regions including the Sahel, a semi-desert zone

bordering the Sahara to the south that stretches some 2,400

miles (3,860 kilometers).

Images taken between 1982 and 2002 revealed extensive

regreening throughout the Sahel, according to a new study in

the journal Biogeosciences.

The study suggests huge increases in vegetation in areas

including central Chad and western Sudan.

The transition may be occurring because hotter air has more

capacity to hold moisture, which in turn creates more rain,

said Martin Claussen of the Max Planck Institute for

Meteorology in Hamburg, Germany, who was not involved in the

new study.

``The water-holding capacity of the air is the main driving

force,'' Claussen said.

not a single scorpion

While satellite images can't distinguish temporary plants

like grasses that come and go with the rains, ground surveys

suggest recent vegetation change is firmly rooted.

In the eastern Sahara area of southwestern Egypt and

northern Sudan, new trees--such as acacias--are flourishing,

according to Stefan Kropelin, a climate scientist at the

University of Cologne's Africa Research Unit in Germany.

Shrubs are coming up and growing into big shrubs. This is

completely different from having a bit more tiny grass,''

said Kropelin, who has studied the region for two decades.

In 2008 Kropelin--not involved in the new satellite

research--visited Western Sahara, a disputed territory

controlled by Morocco.

``The nomads there told me there was never as much rainfall

as in the past few years,'' Kropelin said. ``They have never

seen so much grazing land.''

``Before, there was not a single scorpion, not a single

blade of grass,'' he said.

``Now you have people grazing their camels in areas which

may not have been used for hundreds or even thousands of

years. You see birds, ostriches, gazelles coming back, even

sorts of amphibians coming back,'' he said.

``The trend has continued for more than 20 years. It is

indisputable.''

uncertain future

An explosion in plant growth has been predicted by some

climate models.

For instance, in 2005 a team led by Reindert Haarsma of the

Royal Netherlands Meteorological Institute in De Bilt, the

Netherlands, forecast significantly more future rainfall in

the Sahel.

The study in Geophysical Research Letters predicated that

rainfall in the July to September wet season would rise by up

to two millimeters a day by 2080.

Satellite data shows ``that indeed during the last decade,

the Sahel is becoming more green,'' Haarsma said.

Even so, climate scientists don't agree on how future

climate change will affect the Sahel: Some studies simulate a

decrease in rainfall.

``This issue is still rather uncertain,'' Haarsma said.

Max Planck's Claussen said North Africa is the area of

greatest disagreement among climate change modelers.

Forecasting how global warming will affect the region is

complicated by its vast size and the unpredictable influence

of high-altitude winds that disperse monsoon rains, Claussen

added.

``Half the models follow a wetter trend, and half a

drier.''

Mr. President, reserving the right to object, and I won't object, but I want to make sure I have enough time to give the remarks I was supposed to give.

They will be wonderful remarks.

I am hopeful that I can be finished by 4 o'clock.

I have no objection.

Mr. President, I appreciate my colleague's remarks and I appreciate his leadership on the Finance Committee. He is a fine man. We have been friends for a long time. He has had a very tough job on health care.

But I was a little amazed that he would suggest the Republicans are opening up the health care bill after the distinguished Senator from Maryland actually opened it up with his amendment. I suspect there is going to be a lot of opening by Democrats, as well as Republicans, of the health care bill because it is a colossally bad bill. There is no sin in doing that. Plus I have to say, coming from one of the States that is one of the major producers of medical devices, most of those device companies hardly agreed to what has happened to them. They are going to have to pass those additional taxes on to consumers.

I make those remarks to correct the record a little bit. I realize what my friend is saying. I suspect there will be a lot of amendments to what I consider to be a bill that I think will be a problem for the rest of our lives if we don't reform it.

I rise today to express my deep concern about the so-called American Jobs and Closing Tax Loopholes Act. I also wish to relay my growing frustration with the partisan gamesmanship and lack of leadership by the majority of this body that has brought us to the deplorable state in which we find ourselves in connection with the expired tax provisions.

As a long-time member of the Committee on Finance, it has been my privilege to work with my colleagues on both sides of the aisle to try to improve the tax laws of this country. While we have had our share of partisan fights over the nearly 20 years I have served on the committee, there has been an overall spirit of cooperation and bipartisanship that has set this panel apart from all the others on which I have served. Unfortunately, this positive spirit, which is so badly needed in the Congress today, has been unraveling for some time now.

Nowhere is this degradation of bipartisan cooperation more evident than in taking care of what used to be the routine business of extending expiring tax provisions. This, of course, is a major objective of the bill before us.

Let us move back a few steps and take an objective look at what we are attempting to do here with this bill. This legislation started out with the purpose of reinstating a growing number of important tax provisions that expired at the end of last year. I recall a time not so long ago when the Senate took care of expiring provisions before they lapsed, not 6 months or even more, after their sunset.

The problem is not with the provisions themselves--they almost universally enjoy wide and deep support on both sides of the aisle. Nor is it a problem that these provisions are not important to the American economy. Admittedly, some of them are more significant than others. The research credit, for example, is vital to our battle to keep R&D activities here in the U.S.--which, by the way, is a battle we are in danger of losing to many of our trading partners, who are working hard to attract these activities away from our shores.

Rather, the problem is twofold--a lack of taking care of needed business on the part of the Senate leadership and the tendency of the majority to use the expired tax provisions as a pawn in the games of politics they are playing.

Let me offer several examples of this. First, it has sadly become commonplace for the leadership of the Senate to not even begin to take the extension of expiring tax provisions seriously until after they have expired. We have, so many times now, routinely extended these provisions after the fact on a retroactive basis, that we have created a sort of expectation that this is a normal and fine way of doing things. This is true despite the fact that we know and admit that this sloppy way of managing public policy will create additional complexity and burdens to the taxpayers that are dependent on these provisions.

Second, the majority had ample opportunity before now to take up and pass the tax extenders, but political games got in the way. For example, early this year in a demonstration of bipartisanship worthy of the reputation of the Finance Committee, Chairman Baucus reached out to Senator Grassley and other committee members on both sides of the aisle in an attempt to put together a job creation bill. This bill, which was eventually enacted as the HIRE Act, was to have included the expired tax provisions. Practically everyone agrees that these provisions are job creators, and both sides wanted to put them in the bill.

Instead, however, the majority leader essentially hijacked this cooperation and turned it into a partisan game where it was impossible for our side to participate. In the process of doing so, he inexplicably removed from the bill the expired tax provisions and trashed them as Republican-only initiatives. Thus, these tax extenders could have been enacted in March but the Democratic leadership demonstrated that it would rather play political games than get these important provisions taken care of, which we all pretty much supported.

Third, when the majority finally did turn its attention to extending these expired tax provisions, it decided to attach unrelated provisions that it felt it could push through the Congress because extender bills eventually become ``must pass'' legislative vehicles. These unrelated provisions include an expansion of the controversial Build America Bonds program and a Medicare ``doc fix'' provision that had been promised in the so-called health care reform bill. Adding these provisions effectively turned the extenders into a pawn in this game of politics.

Finally, the majority has engaged in a strange game of insisting that the expired tax provisions be offset with tax increases on other taxpayers, while allowing far larger portions of the bill, such as the extension of unemployment benefits, to remain un-offset under the guise that we are in an emergency.

Mr. President, we are indeed in an emergency, but it is an emergency caused by too-high taxes and by lack of spending restraint. And by national debt that is compounding itself day after day, year after year, until we double our deficit in the next 5 years and triple it in 10, if we are lucky.

The solution is certainly not to raise taxes and increase spending, yet this is exactly what this bill does. It is to these tax increases included in the bill that I wish to address the remainder of my remarks.

Most of my colleagues know that I have been a strong and long-time supporter of many of the expired tax provisions. Let me again mention the importance of the research tax credit. I, along with Senator Baucus, have long

championed this provision, and I have worked to make it a permanent credit so we do not have to see these repetitive lapses in its coverage, which only make it less effective as an incentive.

I wish this bill included a permanent research tax credit, which many of my colleagues on the other side of the aisle and the Obama administration insist they are in favor of enacting. Knowing that a permanent extension was out of the question, I attempted to strengthen the credit on a temporary basis, along the lines of the bill that Senator Baucus and I introduced last year, but the other side was not even willing to do this. Nevertheless, a straight extension of the current law research tax credit is significant and is of dire necessity.

I hasten to point out it would not have been as effective as the strengthening provision that we both had agreed should be in the bill.

Why, then, am I planning to vote against this bill? Along with the huge increase in un-offset spending, it is for the same reason that much of the business community is opposed to this legislation--the tax increases added to the bill will damage the economy and job creation and outweigh the benefits of extending the expired tax provisions.

That is at a time when we know that unemployment is not coming down, nor is the economy getting that much better.

Let us take a look at some of these so-called tax loopholes that this legislation is attempting to close.

The largest revenue raiser in the bill is the so-called carried interest provision. For several years now, we have heard it stated with outrage that hedge fund managers get by with paying a lower tax rate on their billion dollar compensation packages than the tax rate their secretaries pay on their relatively meager salaries. Well, if it were this simple, maybe this is a legitimate loophole that we should have closed a long time ago. Unfortunately, it is not this simple.

Rather, the carried interest issue is a complex one that permeates through many structures throughout our economy in ways that are difficult to understand. For example, the same partnership structure that is often utilized by a hedge fund is also used by venture capitalists and real estate developers. These structures have long been part of our tax law and many multi-billion dollar deals that have created millions of jobs have been built upon them.

I am not here to say that from a tax policy point of view, the way we tax carried interest should not be examined and possibly changed. What I am here to say is that we need to use extreme caution in making any changes to the taxation of these structures. Why? Because the simple fact is that if we increase the tax rates and change the nature of income from these partnerships, the economic hurdle rates will rise, and fewer deals will get done. And if fewer deals are done, less economic activity will be generated and fewer jobs will be created. At this time of economic strife in this country, this is not a chance we should take.

The problem Mr. President, is that these offsets are being considered for one reason and one reason only--for the tax revenue they are projected to provide. We are trying to fill a hole and we need a certain amount of new taxes to do it. We are not looking to improve tax policy here. If we were, we would approach this matter with the caution it warrants.

Another big tax change in this bill before us also needs to be reconsidered. I refer to the provision to change the way certain owners of S corporations are subject to self-employment tax. This $11 billion plus revenue raiser will create all kinds of headaches for legitimate small businesses that are currently playing by the rules.

The proponents of this change say that it is needed to close a loophole made famous by a former colleague of ours who will remain unnamed. However, the Internal Revenue Service already has all the tools it needs, in the form of existing tax rules, to enforce the kind of abuses that have occurred in this area.

The provision in this bill to correct this problem would arbitrarily afflict certain small businesses whose only sin is that they might have three skilled professionals rather than four. Essentially, the provision creates a raft of unanswered and complex questions that will likely bedevil hundreds of thousands of small business owners who would much rather be concentrating on surviving the tough economic climate and possibly creating some new jobs.

Finally, I must say a few words about another category of offsets in this bill that are entirely unjustified and were not well considered. These are the set of changes to the foreign tax credit rules that suddenly appeared on the scene just a few days ago. Unlike most other tax offsets that we discuss in the Finance Committee, which have been around for a long time and have had the benefit of examination by the professional tax community, these were sprung on us just a few days ago. They were not part of the administration's budget proposal and have not been subject to any kind of hearing in either House.

Rather, they were apparently concocted by some backroom bureaucrats in the bowels of the executive branch and brought forth in the guise that these are glaring loopholes that must be closed for the sake of the future of the federal fisc. However, what I have been told by seasoned tax professionals in the business community is that these are, in large part, not loopholes at all but legitimate tax planning techniques that the Treasury and Internal Revenue Service have known about for years.

What is worse is that the effective date of these provisions in this bill would have a retroactive effect. We all know that retroactive tax increases belie good public policy. Moreover, many on the majority side, including the chairmen of both of the tax-writing committees, earlier agreed that international tax reform provisions should be discussed in connection with international tax reform, not as a knee- jerk reaction to a perceived need for revenues on an unrelated bill. This is not good lawmaking and we should abandon consideration of these revenue raisers until we can examine them from a tax policy point of view.

In conclusion, we are on the low road with this bill. I am frankly ashamed to tell Utahns who ask me about the expired provisions that Congress has not dealt with them yet, and that the reason why is that we are too busy playing partisan games to manage the affairs of the nation in a responsible way.

It is not too late. Let us walk away from this mess and start again. Let us take up a clean bill to extend the expired provisions, which we all agree should be enacted, and then deal with these other issues separately. Most importantly, let us not increase taxes on anyone when the economy is in such a precarious position.

As our side has stated many times before, these tax provisions have been paid for many times over in previous years, by enacting permanent offsets to go along with their temporary extension. Let us not hurt our constituents in the name of false fiscal responsibility. Let us instead employ real fiscal responsibility and start finding ways to address our runaway spending addiction.

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

Mr. President, I have been asked to raise a point of order that the Cardin amendment violates section 311 of the Congressional Budget Act.

Mr. President, I rise today to introduce legislation designed to increase tax fairness for America's primary and secondary school teachers.

Our public school teachers are some of the unheralded heroes of our society. These women and men dedicate their careers to educating the young people of America. School teachers labor in often difficult and even dangerous circumstances. In most places, including in my home state of Utah, the salary of the average public school teacher is significantly below the national average.

For a variety of economic and organizational reasons, schools across the nation are experiencing difficulties in recruiting teachers-- especially in the fields of math and science. There are at least two sources to this problem. First, schools are experiencing high levels of turnover related to retirement, relocation, and attrition. Second, there is an insufficient supply of new qualified math and science teachers coming in to the schools to compensate for the turnover.

As a result of these factors, 31 percent of secondary schools across the nation report difficulties in filling math and science faculty positions. This teacher recruitment problem is especially troubling because it disproportionately affects small schools in urban and rural areas, especially those with limited access to funding.

Unfortunately, the problems of retention and recruitment of public school teachers are exacerbated by the unfair tax treatment these professionals currently receive under our tax law. Specifically, teachers are greatly disadvantaged by the lack of deductibility of the total amount of out-of-pocket costs of classroom materials that practically all teachers find themselves supplying, as well as by the inability to deduct their professional development expenses. Let me explain.

As with many other professionals, most elementary and secondary school teachers regularly incur expenses to keep themselves current in their fields of knowledge. These include subscriptions to journals and other periodicals as well as the cost of courses and seminars designed to improve their knowledge or teaching skills. For example, in order to be certified by the National Board for Professional Teaching Standards, NBPTS, a teacher must pay a fee of $2,500. Expenditures like these are necessary to keep our teachers up to date on the latest ideas, techniques, and trends so that they can provide our children with the best education possible.

Furthermore, almost all teachers find themselves spending not insignificant amounts of money to provide basic classroom materials for their students. Because of tight education budgets, most schools do not provide 100 percent of the material teachers need to adequately present their lessons. New teachers in their first and second years are especially susceptible to a large financial burden as they must start from scratch in establishing a curriculum and classroom for their students.

I realize that employees in many fields incur expenses for professional development and out-of-pocket expenses. In many cases, however, these costs are reimbursed by the employer. This is seldom the case with school teachers. Other professionals who are self-employed are generally able to fully deduct these types of expenses.

Under the current tax law, unreimbursed expenses for all employees are deductible generally, but only as miscellaneous itemized deductions. However, there are two practical hurdles that effectively make these expenses non-deductible for most teachers. The first hurdle is that the total amount of a taxpayer's deductible miscellaneous deductions must exceed 2 percent of gross income before they begin to be deductible.

The second hurdle is that the amount in excess of the 2 percent floor, if any, combined with all other deductions of the taxpayer, must exceed the standard deduction before the teacher can itemize. Only about one-third of taxpayers have enough deductions to itemize. The unfortunate effect of these two limitations is that, as a practical matter, only a small proportion of teachers are able to deduct their professional development and out-of-pocket supplies expenses.

Let me illustrate this unfair situation with an example. Let us consider the case of a first-year teacher in Utah, whom we will refer to as Michelle. Michelle is newly married. She and her husband together expect to earn $48,000 this year. As a brand-new teacher, Michelle has none of the classroom decorations, materials, or curriculum aides that veteran teachers have accumulated. In an effort to quickly collect some necessary items for her classroom, a new teacher like Michelle will probably spend close to $1,500 of her own money. She will not be reimbursed for any of these expenses by the school district.

Under current law, Michelle's expenditures are deductible, subject to the two limitations I mentioned. The first limitation is that her expenses must exceed 2 percent of her and her husband's joint income before they begin to be deductible. Two percent of $48,000 is $960. Thus, only $540 of her $1,500 total expense is potentially deductible-- that portion that exceeds $960.

As a married taxpayer, Michelle's standard deduction this year is $11,400. Her total itemized deductions, including the $540 in qualified miscellaneous deductions for her professional expenses and out-of- pocket classroom supplies, will fall far short of the standard deduction threshold. Therefore, not even the $540 of the original $1,500 in out-of-pocket costs is deductible for Michelle. What the first limitation did not block, the second one did, and Michelle gets no deduction at all for these expenses under the current law.

The entry-level employees in the teaching field are the first- and second-year teachers like Michelle, who receive the lowest relative salary and yet often incur the greatest school-related expenses. These expenses place a heavy burden on our teachers and can act as a significant barrier to entry to the teaching profession. Many of these new teachers are renting and fresh out of college, and are thus very unlikely to be able to itemize their deductions. Therefore, without the ability to itemize, the teachers with the greatest need of tax relief are the ones least likely to receive it.

This problem is not isolated to first-year teachers. Veteran educators, like Kristen Adamson, also an elementary school teacher in Utah, have also expressed their concerns about this tax inequity. Kristen is preparing for a class of 35 fifth-graders next year--the most she's ever had. She, like most teachers, feels that it is her duty to provide all of her students with the materials they will need to successfully complete their school work. There are few careers that I know of in which employees take similar initiative.

This year, due to limited state funding, Kristen will be forced to choose between a class set of colored pencils or a class set of crayons. Whatever the district does not provide, Kristen will be forced to purchase herself. Further, the school district provides only one

notebook per student, but her pupils require a minimum of four each to organize their work. With 35 students, these costs can add up very quickly. Kristen typically does not have enough deductions to itemize and therefore, like most teachers, will receive little or no tax relief.

As you can see, public school educators are at a marked disadvantage under the current tax law, and they deserve better treatment. Not only is the situation morally unacceptable, it is aggravating to our teacher retention and recruitment problems.

I have been fighting to pass legislation that will help alleviate this long-standing problem for almost a decade. In 2001, I first introduced the Tax Equity for School Teachers Act. This legislation would have provided an unlimited tax deduction for the out-of-pocket expenses school teachers incur to acquire necessary training and materials.

Rather than being available only to those who are able to itemize their deductions, this bill would have made these expenses ``above-the- line'' deductions, meaning they would be deductible whether or not the teacher itemized on their tax return.

Unfortunately, only a part of this bill was enacted. The 2001 tax act included an above the-line deduction for $250 for the costs of classroom expenses. While this was a step in the right direction, it was essentially a symbolic gesture as teachers typically spend far more than $250 on school-related expenses. This deduction has expired and has been renewed several times, but it expired again at the end of last year. It is not clear when Congress is going to extend it.

The bill I am introducing today would do three things. First, it would reinstate the above-the-line deduction for teachers' out-of- pocket expenses for classroom supplies, make it permanent, and remove the $250 cap. Second, it would provide an unlimited deduction for the professional development expenses for school teachers. Finally, to assist in the recruitment of teachers in the most-needed fields, it would provide an unlimited deduction for the cost of professionals in the fields of math, science, and technology to certify to become public school teachers.

Under my bill, first-year teacher Michelle would be allowed to deduct all $1,500 of her professional development and classroom supplies expenses, whether she itemized or not. Similarly, Kristen would be able to deduct all of the expenses she incurred to provide materials for her students. This would help provide tax equity and a measure of much- needed tax relief for scores of underpaid professionals. It would also help retain current public school teachers and attract new ones to the field.

Some might argue that such a generous deduction would be giving teachers preferential treatment. I disagree. Most organizations provide training and supplies for their employees that are fully deductible to the organization and non-taxable to the employee. Yet, public teachers pay for training out of their own pocket, as is the case with NBPTS certification.

Others may question the wisdom of my bill granting an unlimited tax deduction. Why not place a limit or cap on the amount that may be deducted, some might ask. Again, I respectfully disagree with such critics. It is important to keep in mind the difference between a tax deduction and a tax credit. My bill calls for tax deductions, which essentially act as a cost-sharing arrangement between the teacher and the government. Deductions reduce the amount of income that is subject to tax. A credit, on the other hand, is a dollar-for-dollar reduction in the amount of tax that is due.

With a tax deduction, a public school teacher is not receiving a cash subsidy or reimbursement for his or her expenses. Rather, he or she is merely obtaining a reduction in the amount of income that is taxed. Thus, the most benefit a teacher would receive under my bill would be a 35 percent reduction in the cost of professional development, supplies, or certification expenses. For the vast majority of teachers, the amount would be far less than 35 percent, because they are in lower tax brackets. This means that the teacher is still responsible for paying for the biggest portion of these costs. In other words, this bill does not provide an incentive for teachers to spend unnecessary funds; it simply provides a discount for teachers who use their common sense and spend their money appropriately. If anything, this deduction is not generous enough, but it would go a long way toward providing help for these dedicated professionals.

Support for mathematics and science education at all levels is necessary to improve the global competitiveness of the United States in science and energy technology. I endorse the efforts of some of my colleagues to encourage more of our best and brightest students who choose these fields of study. Sup ort for qualified STEM teachers, Science, Technology, Engineering, and Mathematics, is equally important. If we are successful in increasing the supply of STEM students, we will need to take drastic measures to increase the already strained supply of STEM teachers. This bill would provide incentives for these professionals to enter the teaching profession by allowing expenses in connection with teacher licensing and certification to be fully deductible, above the line, the same as professional development and supplies expenses of teaching professionals.

This bill would provide modest tax relief for teachers who, for too long, have been treated unfairly under our tax laws. It would alleviate significant barriers to entry to the teaching profession and would help solve some of our teacher recruitment and retention problems. Our teachers deserve whatever help we can provide. It is time that Congress recognized this unfairness and corrected it. I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support this legislation.

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

Mr. President, I rise today to introduce legislation designed to increase tax fairness for America's primary and secondary school teachers.

Our public school teachers are some of the unheralded heroes of our society. These women and men dedicate their careers to educating the young people of America. School teachers labor in often difficult and even dangerous circumstances. In most places, including in my home state of Utah, the salary of the average public school teacher is significantly below the national average.

For a variety of economic and organizational reasons, schools across the nation are experiencing difficulties in recruiting teachers-- especially in the fields of math and science. There are at least two sources to this problem. First, schools are experiencing high levels of turnover related to retirement, relocation, and attrition. Second, there is an insufficient supply of new qualified math and science teachers coming in to the schools to compensate for the turnover.

As a result of these factors, 31 percent of secondary schools across the nation report difficulties in filling math and science faculty positions. This teacher recruitment problem is especially troubling because it disproportionately affects small schools in urban and rural areas, especially those with limited access to funding.

Unfortunately, the problems of retention and recruitment of public school teachers are exacerbated by the unfair tax treatment these professionals currently receive under our tax law. Specifically, teachers are greatly disadvantaged by the lack of deductibility of the total amount of out-of-pocket costs of classroom materials that practically all teachers find themselves supplying, as well as by the inability to deduct their professional development expenses. Let me explain.

As with many other professionals, most elementary and secondary school teachers regularly incur expenses to keep themselves current in their fields of knowledge. These include subscriptions to journals and other periodicals as well as the cost of courses and seminars designed to improve their knowledge or teaching skills. For example, in order to be certified by the National Board for Professional Teaching Standards, NBPTS, a teacher must pay a fee of $2,500. Expenditures like these are necessary to keep our teachers up to date on the latest ideas, techniques, and trends so that they can provide our children with the best education possible.

Furthermore, almost all teachers find themselves spending not insignificant amounts of money to provide basic classroom materials for their students. Because of tight education budgets, most schools do not provide 100 percent of the material teachers need to adequately present their lessons. New teachers in their first and second years are especially susceptible to a large financial burden as they must start from scratch in establishing a curriculum and classroom for their students.

I realize that employees in many fields incur expenses for professional development and out-of-pocket expenses. In many cases, however, these costs are reimbursed by the employer. This is seldom the case with school teachers. Other professionals who are self-employed are generally able to fully deduct these types of expenses.

Under the current tax law, unreimbursed expenses for all employees are deductible generally, but only as miscellaneous itemized deductions. However, there are two practical hurdles that effectively make these expenses non-deductible for most teachers. The first hurdle is that the total amount of a taxpayer's deductible miscellaneous deductions must exceed 2 percent of gross income before they begin to be deductible.

The second hurdle is that the amount in excess of the 2 percent floor, if any, combined with all other deductions of the taxpayer, must exceed the standard deduction before the teacher can itemize. Only about one-third of taxpayers have enough deductions to itemize. The unfortunate effect of these two limitations is that, as a practical matter, only a small proportion of teachers are able to deduct their professional development and out-of-pocket supplies expenses.

Let me illustrate this unfair situation with an example. Let us consider the case of a first-year teacher in Utah, whom we will refer to as Michelle. Michelle is newly married. She and her husband together expect to earn $48,000 this year. As a brand-new teacher, Michelle has none of the classroom decorations, materials, or curriculum aides that veteran teachers have accumulated. In an effort to quickly collect some necessary items for her classroom, a new teacher like Michelle will probably spend close to $1,500 of her own money. She will not be reimbursed for any of these expenses by the school district.

Under current law, Michelle's expenditures are deductible, subject to the two limitations I mentioned. The first limitation is that her expenses must exceed 2 percent of her and her husband's joint income before they begin to be deductible. Two percent of $48,000 is $960. Thus, only $540 of her $1,500 total expense is potentially deductible-- that portion that exceeds $960.

As a married taxpayer, Michelle's standard deduction this year is $11,400. Her total itemized deductions, including the $540 in qualified miscellaneous deductions for her professional expenses and out-of- pocket classroom supplies, will fall far short of the standard deduction threshold. Therefore, not even the $540 of the original $1,500 in out-of-pocket costs is deductible for Michelle. What the first limitation did not block, the second one did, and Michelle gets no deduction at all for these expenses under the current law.

The entry-level employees in the teaching field are the first- and second-year teachers like Michelle, who receive the lowest relative salary and yet often incur the greatest school-related expenses. These expenses place a heavy burden on our teachers and can act as a significant barrier to entry to the teaching profession. Many of these new teachers are renting and fresh out of college, and are thus very unlikely to be able to itemize their deductions. Therefore, without the ability to itemize, the teachers with the greatest need of tax relief are the ones least likely to receive it.

This problem is not isolated to first-year teachers. Veteran educators, like Kristen Adamson, also an elementary school teacher in Utah, have also expressed their concerns about this tax inequity. Kristen is preparing for a class of 35 fifth-graders next year--the most she's ever had. She, like most teachers, feels that it is her duty to provide all of her students with the materials they will need to successfully complete their school work. There are few careers that I know of in which employees take similar initiative.

This year, due to limited state funding, Kristen will be forced to choose between a class set of colored pencils or a class set of crayons. Whatever the district does not provide, Kristen will be forced to purchase herself. Further, the school district provides only one

notebook per student, but her pupils require a minimum of four each to organize their work. With 35 students, these costs can add up very quickly. Kristen typically does not have enough deductions to itemize and therefore, like most teachers, will receive little or no tax relief.

As you can see, public school educators are at a marked disadvantage under the current tax law, and they deserve better treatment. Not only is the situation morally unacceptable, it is aggravating to our teacher retention and recruitment problems.

I have been fighting to pass legislation that will help alleviate this long-standing problem for almost a decade. In 2001, I first introduced the Tax Equity for School Teachers Act. This legislation would have provided an unlimited tax deduction for the out-of-pocket expenses school teachers incur to acquire necessary training and materials.

Rather than being available only to those who are able to itemize their deductions, this bill would have made these expenses ``above-the- line'' deductions, meaning they would be deductible whether or not the teacher itemized on their tax return.

Unfortunately, only a part of this bill was enacted. The 2001 tax act included an above the-line deduction for $250 for the costs of classroom expenses. While this was a step in the right direction, it was essentially a symbolic gesture as teachers typically spend far more than $250 on school-related expenses. This deduction has expired and has been renewed several times, but it expired again at the end of last year. It is not clear when Congress is going to extend it.

The bill I am introducing today would do three things. First, it would reinstate the above-the-line deduction for teachers' out-of- pocket expenses for classroom supplies, make it permanent, and remove the $250 cap. Second, it would provide an unlimited deduction for the professional development expenses for school teachers. Finally, to assist in the recruitment of teachers in the most-needed fields, it would provide an unlimited deduction for the cost of professionals in the fields of math, science, and technology to certify to become public school teachers.

Under my bill, first-year teacher Michelle would be allowed to deduct all $1,500 of her professional development and classroom supplies expenses, whether she itemized or not. Similarly, Kristen would be able to deduct all of the expenses she incurred to provide materials for her students. This would help provide tax equity and a measure of much- needed tax relief for scores of underpaid professionals. It would also help retain current public school teachers and attract new ones to the field.

Some might argue that such a generous deduction would be giving teachers preferential treatment. I disagree. Most organizations provide training and supplies for their employees that are fully deductible to the organization and non-taxable to the employee. Yet, public teachers pay for training out of their own pocket, as is the case with NBPTS certification.

Others may question the wisdom of my bill granting an unlimited tax deduction. Why not place a limit or cap on the amount that may be deducted, some might ask. Again, I respectfully disagree with such critics. It is important to keep in mind the difference between a tax deduction and a tax credit. My bill calls for tax deductions, which essentially act as a cost-sharing arrangement between the teacher and the government. Deductions reduce the amount of income that is subject to tax. A credit, on the other hand, is a dollar-for-dollar reduction in the amount of tax that is due.

With a tax deduction, a public school teacher is not receiving a cash subsidy or reimbursement for his or her expenses. Rather, he or she is merely obtaining a reduction in the amount of income that is taxed. Thus, the most benefit a teacher would receive under my bill would be a 35 percent reduction in the cost of professional development, supplies, or certification expenses. For the vast majority of teachers, the amount would be far less than 35 percent, because they are in lower tax brackets. This means that the teacher is still responsible for paying for the biggest portion of these costs. In other words, this bill does not provide an incentive for teachers to spend unnecessary funds; it simply provides a discount for teachers who use their common sense and spend their money appropriately. If anything, this deduction is not generous enough, but it would go a long way toward providing help for these dedicated professionals.

Support for mathematics and science education at all levels is necessary to improve the global competitiveness of the United States in science and energy technology. I endorse the efforts of some of my colleagues to encourage more of our best and brightest students who choose these fields of study. Sup ort for qualified STEM teachers, Science, Technology, Engineering, and Mathematics, is equally important. If we are successful in increasing the supply of STEM students, we will need to take drastic measures to increase the already strained supply of STEM teachers. This bill would provide incentives for these professionals to enter the teaching profession by allowing expenses in connection with teacher licensing and certification to be fully deductible, above the line, the same as professional development and supplies expenses of teaching professionals.

This bill would provide modest tax relief for teachers who, for too long, have been treated unfairly under our tax laws. It would alleviate significant barriers to entry to the teaching profession and would help solve some of our teacher recruitment and retention problems. Our teachers deserve whatever help we can provide. It is time that Congress recognized this unfairness and corrected it. I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support this legislation.

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

Mr. President, today Senator Tom Harkin, Chairman of the Senate Health, Education, Labor and Pensions Committee and I are introducing the Dietary Supplement Full Implementation and Enforcement Act of 2010, which is similar to the legislation we introduced in the 108th Congress.

Our goal in introducing this commonsense bill is to ensure that the Food and Drug Administration properly implements and enforces existing dietary supplement laws--namely the 1994 Dietary Supplement Health Education Act, DSHEA, and the Dietary Supplement and Nonprescription Drug Consumer Protection Act of 2006. This is important to protect the 150,000,000 Americans who regularly take dietary supplements and to remove ``bad actor'' companies from the marketplace.

This issue is extremely important because the laws already on the books are sufficient if the FDA has the resources and the will to fully enforce them. Indeed, previous FDA commissioners--Dr. Jane Henney, Dr. Mark McClellan, Dr. Lester Crawford and Dr. Andy von Eschenbach--have all stated as much in Senate hearings and in my meetings with them. Moreover, current FDA Commissioner Dr. Margaret Hamburg has assured me that she will work with me to ensure these laws are enforced.

Bottom line: the FDA already has the regulatory authority it needs under current law.

That is why I will not support any changes to existing dietary supplement laws until the legislation we are introducing today has been approved by both the House and the Senate and signed into law by the President. We also need to ensure this legislation is fully funded by this Congress and enforced by the FDA with the full backing of this Administration. It is important to give FDA the resources it needs to accomplish both tasks. The legislation that we are introducing today will do just that.

Senator Harkin and I have asked our colleagues on the Senate Appropriations Committee to provide the FDA with the funds it needs to fully implement DSHEA. We will continue to work diligently to help them succeed in that task.

As you know, DSHEA clarified the FDA's regulatory authority over dietary supplements while ensuring that Americans will continue to have access to safe dietary supplements and helpful information about these products. It passed the Senate twice by unanimous consent. The legislation we are introducing today includes a Sense of the Congress and outlines the methods the FDA should use to better implement and enforce laws related to dietary supplements. It further requires the dietary supplement industry to redouble its efforts to comply with the law and cooperate with the FDA.

To provide the FDA with the resources necessary to regulate compliance with dietary supplement laws, this bill directs the agency to use part of its 2010 Fiscal Year Budget for that purpose. It also authorizes the National Institutes of Health's Office of Dietary Supplements to expand research and develop more consumer information on dietary supplements.

Furthermore, the legislation requires the Secretary of Health and Human Services (HHS) to submit an annual report to Congress, starting no later than January 31, 2011, regarding HHS activities on dietary supplements. Finally, it directs the FDA to issue its New Dietary Ingredient (NDI) guidance, as recommended by the General Accountability Office, within 180 days and requires the FDA to share any information on tainted NDI with the Drug Enforcement Agency.

It is my sincere hope that all my colleagues will support this effort to ensure that dietary supplement consumers and manufacturers are protected and properly regulated. Our constituents deserve no less.

This legislation is supported by the Major League Baseball and NFL players associations, the Natural Products Association, the United Natural Products Alliance, Council for Responsible Nutrition, American Herbal Products Association and the Consumer Health Care Products Association.

I hope that each of you will see the wisdom in supporting this measure.

Mr. President, I ask unanimous consent that letters of support be printed in the Record.

Mr. President, today Senator Tom Harkin, Chairman of the Senate Health, Education, Labor and Pensions Committee and I are introducing the Dietary Supplement Full Implementation and Enforcement Act of 2010, which is similar to the legislation we introduced in the 108th Congress.

Our goal in introducing this commonsense bill is to ensure that the Food and Drug Administration properly implements and enforces existing dietary supplement laws--namely the 1994 Dietary Supplement Health Education Act, DSHEA, and the Dietary Supplement and Nonprescription Drug Consumer Protection Act of 2006. This is important to protect the 150,000,000 Americans who regularly take dietary supplements and to remove ``bad actor'' companies from the marketplace.

This issue is extremely important because the laws already on the books are sufficient if the FDA has the resources and the will to fully enforce them. Indeed, previous FDA commissioners--Dr. Jane Henney, Dr. Mark McClellan, Dr. Lester Crawford and Dr. Andy von Eschenbach--have all stated as much in Senate hearings and in my meetings with them. Moreover, current FDA Commissioner Dr. Margaret Hamburg has assured me that she will work with me to ensure these laws are enforced.

Bottom line: the FDA already has the regulatory authority it needs under current law.

That is why I will not support any changes to existing dietary supplement laws until the legislation we are introducing today has been approved by both the House and the Senate and signed into law by the President. We also need to ensure this legislation is fully funded by this Congress and enforced by the FDA with the full backing of this Administration. It is important to give FDA the resources it needs to accomplish both tasks. The legislation that we are introducing today will do just that.

Senator Harkin and I have asked our colleagues on the Senate Appropriations Committee to provide the FDA with the funds it needs to fully implement DSHEA. We will continue to work diligently to help them succeed in that task.

As you know, DSHEA clarified the FDA's regulatory authority over dietary supplements while ensuring that Americans will continue to have access to safe dietary supplements and helpful information about these products. It passed the Senate twice by unanimous consent. The legislation we are introducing today includes a Sense of the Congress and outlines the methods the FDA should use to better implement and enforce laws related to dietary supplements. It further requires the dietary supplement industry to redouble its efforts to comply with the law and cooperate with the FDA.

To provide the FDA with the resources necessary to regulate compliance with dietary supplement laws, this bill directs the agency to use part of its 2010 Fiscal Year Budget for that purpose. It also authorizes the National Institutes of Health's Office of Dietary Supplements to expand research and develop more consumer information on dietary supplements.

Furthermore, the legislation requires the Secretary of Health and Human Services (HHS) to submit an annual report to Congress, starting no later than January 31, 2011, regarding HHS activities on dietary supplements. Finally, it directs the FDA to issue its New Dietary Ingredient (NDI) guidance, as recommended by the General Accountability Office, within 180 days and requires the FDA to share any information on tainted NDI with the Drug Enforcement Agency.

It is my sincere hope that all my colleagues will support this effort to ensure that dietary supplement consumers and manufacturers are protected and properly regulated. Our constituents deserve no less.

This legislation is supported by the Major League Baseball and NFL players associations, the Natural Products Association, the United Natural Products Alliance, Council for Responsible Nutrition, American Herbal Products Association and the Consumer Health Care Products Association.

I hope that each of you will see the wisdom in supporting this measure.

Mr. President, I ask unanimous consent that letters of support be printed in the Record.

Mr. President, I rise today to express my opposition to S. 3217, the Restoring American Financial Stability Act. I am not opposed to financial regulatory reform, but there is precious little of that in this misnamed bill.

No, real financial regulatory reform is something that should have been done a year ago, but, instead, Democratic leaders and the Obama administration opted to focus on a Washington takeover of our Nation's health care system.

There are a few parts to the Restoring American Financial Stability Act that are worthy of support. In particular, I believe we need to monitor derivatives to require more capitalization and demand issuers maintain a stake in the game when creating and selling certain financial instruments. However, I think this bill is going to do more harm than good to our economy. It will weaken our financial system rather than strengthen it. Furthermore, it not only preserves the fragmented financial regulatory structure that is already in place but adds even more burdensome, costly, and misguided regulations. Before I list my concerns about the bill, I am going to address the specious accusations I have heard from the other side of the aisle that Republicans are being obstructionist or trying to protect the interests of Wall Street over those of Main Street. Give me a break.

These accusations are not only false, they are aimed at diverting attention from our solutions to a bad bill by attacking our credibility and motivations. We are not trying to protect anyone except the American people who are the victims of this economic collapse.

Let me be clear that every Senate Republican and I want financial regulatory reform in order to prevent a recurrence of what happened a couple of years ago with the collapse of our financial markets. But the problem with this proposal is that it not only regulates Wall Street but also Main Street. It goes beyond regulating large financial institutions that caused the problem and proposes to regulate community banks and credit unions, payday lenders, and other small businesses and almost any business that provides financing to their customers. If the other side is implying that we are trying to protect Wall Street because we have some sort of special relationship with large financial institutions, that is blatantly false on its face and simply not true.

Large financial institutions contributed way more to Democrats than Republicans in the last election and elections before that. If anyone is guilty of trying to do a special favor for Wall Street, it certainly isn't this side. That is all I can say. If you look at the financial filings, it is pretty darn clear who Wall Street supported.

If anything, I believe this bill will benefit Wall Street in the sense that it is something they can always get around. It would provide a perpetual bailout for large financial institutions. I know there is an argument against that, but look at the bill. It would require higher capitalization for many of the companies in which these institutions invest and place larger financial institutions at an unfair advantage over smaller financial institutions.

But don't take it from me. Take it from the CEO of Goldman Sachs, Lloyd Blankfein, who said ``the biggest beneficiary of reform is Wall Street itself.'' He is a smart guy. He deserves to be the president of Goldman Sachs, one of

the more important companies on Wall Street. There isn't any way they would not get around whatever we do today. They are the smartest people on Earth. So the claim that Republicans are trying to protect Wall Street doesn't hold very much water at all.

Some on the other side of the aisle have claimed our objective is to obstruct passage of any financial regulatory reform bill. I can't agree with that. In fact, I cannot disagree more. Not only did a Democrat join Republicans in voting against proceeding to this bill, another Democrat who serves on the Banking Committee and has been involved in negotiations noted that the concerns being raised by Republicans about potential bailouts of large financial institutions are legitimate. He validated our concerns by stating that ``there are parts that need to be tightened.'' So at the very least, both Democrats and Republicans believe this bill leaves a lot of room for improvement.

I would like to turn my attention to the substance of the bill. The reasons I am opposed to this legislation are because, along with many others, I have serious misgivings about its effectiveness, specifically the FDIC's orderly liquidation authority, the overregulation of the consumer protection agency, and the lack of reforming Freddie Mac and Fannie Mae. The meltdown of our financial markets highlights a major flaw in our financial regulatory system--the expeditious dissolution of a financial institution.

I recently finished reading former Treasury Secretary Hank Paulson's book, ``On The Brink,'' which details the time leading up to the catastrophic failures and the handling of the crisis. I would like to read a short passage:

Back in my temporary office on the 13th floor, a jolt of

fear suddenly overcame me as I thought of what lay ahead of

us. Lehman was as good as dead, and AIG's problems were

spiraling out of control. With the U.S. sinking deeper into

recession, the failure of a large financial institution would

reverberate throughout the country--and far beyond our

shores. It would take years for us to dig ourselves out from

under such a disaster.

What I took away from this book was the enormity and complexity of trying to dissolve these large financial institutions before their assets disappeared. There is no doubt that our current system is incapable of handling such a complicated task. In fact, over the last few weeks, I not only read ``On The Brink,'' but I read ``The Ascent of Money.'' I read ``The Panic of 1907'' and was amazed at the correlation between 1907 and 2007. I read ``On The Brink'' by Hank Paulson. I read Sorkin's book, ``Too Big To Fail.'' Just last weekend I read the book, ``The Big Short,'' by Michael Lewis, which is an excellent read. They have all been excellent reads. That is in the last few weeks.

The Federal Deposit Insurance Corporation, or FDIC, was established in 1933 to insure bank deposits. It mainly deals with the common brick- and-mortar bank that most of us use on a daily basis. It oversees roughly 8,000 depository institutions and $9 trillion in deposits. In the aftermath of the economic collapse, the FDIC administered 25 bank failures in 2008 and 140 in 2009. That is approximately 2 percent of all the banks they oversee.

Despite such a low percentage, the FDIC's deposit insurance fund was nearly depleted. According to the Federal Reserve, there are approximately 5,000 top-tier bank holding companies with roughly $17 trillion in assets. The top 10 largest financial institutions hold $9 trillion in assets. The current financial regulatory reform bill proposes to provide the FDIC with an orderly liquidation authority to unwind not only depository institutions but now large financial institutions that pose a systemic risk to our financial system.

With the passage of this bill, the FDIC would be responsible for unwinding nearly double the total number of assets. However, the magnitude of the task is the least of my concerns. By taking the resolution out of the bankruptcy courts, with all of their expertise, and putting it in an executive branch administrative proceeding conducted by politically appointed bureaucrats, we definitely lose transparency and accountability. It is ridiculous.

If you would like to see a glimpse of the consequences of losing transparency and accountability, just look at the FDIC's behind-closed- doors handling of Washington Mutual. During a Senate investigatory hearing last month, former Washington Mutual Chief Executive Kerry Killinger denounced the FDIC's handling of the bank failure as ``unnecessary'' and ``unfair,'' partly because the thrift was shut out of hundreds of meetings and phone calls with financial industry executives who determined the ``winners and losers'' in the crisis.

Our current bankruptcy courts avoid many of the problems associated with creating a government resolution authority and are a superior way of dealing with failed or failing nonbank financial firms. The bankruptcy courts make dissolving large institutions transparent. That is why we have them. They are experts at it. They know what they are doing. We can all watch what they are doing. We can read the pleadings. We can do a lot of things that bring transparency. The other way will not.

That brings me to my next concern with this bill, the creation of the Consumer Financial Protection Agency. Of course, I think we can all agree we need to strengthen consumer protection within our financial system. But I first believe we need to ask what went wrong with the current system before we create yet another government agency to create more regulations and oversight.

This will only make it more difficult for consumers and small businesses to obtain a loan, a line of credit, or a credit card. The entire alphabet soup of Federal Government agencies--the FDIC, OCC, SEC, FTC, and the Fed--all have consumer protection divisions. However, these divisions did not meet the standard of protection we need. Extracting these consumer protection arms from each of the agencies and putting them in a new agency is like taking the worn parts from several clunkers and using them to build another car. You will still have a clunker.

Furthermore, think of the costs that new local banks, credit unions, payday lenders, and other industries that deal with credit, such as auto dealers and other small businesses, will incur when trying to comply with all these new, overly burdensome regulations.

But the worst part of this legislation is what it is missing--reform of Fannie Mae and Freddie Mac. These two mortgage agencies caused the financial crisis by backing loans to people who couldn't afford them. But that certainly didn't stop Uncle Sam from bailing them out at a cost to taxpayers of some $145 billion. This financial abuse is swept under the rug because the debt is not put on our books. These companies, which the government now fully owns, are not considered government agencies and, therefore, are not included when tallying up our outrageous trillion-dollar deficits. I might add, that is just the beginning. We all know Fannie and Freddie are about to explode into all kinds of bigger problems, some estimate as much as $500 billion. That is scary. Yet we are not doing a doggone thing about it in this bill.

We should have faced the music and done whatever we could. A lot of games are played with the budget.

As I said before, I support financial regulatory reform. However, this bill falls short of reform and opens the way for another economic collapse to occur. It will unjustly protect companies that are deemed too big to fail by providing them preferential treatment during FDIC- conducted liquidations. It will create costly burdens for the 99 percent of financial institutions that did not cause the financial collapse, and it misses the mark by not addressing the reform of Fannie Mae and Freddie Mac.

There are other reasons, but I think I will limit my remarks today to those few. Those few involve trillions of dollars, involve all kinds of future problems for our country, and I think will lead us even further down the path of poor economics, higher debt, higher spending, more and more government, and less and less control by the people.

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