Floor Statements

Madam President, a couple weeks ago the Obama administration released an outline of its budget plan for fiscal year 2010. The budget is a plan that reflects the President's agenda and priorities for the fiscal year.

The document with which most of our colleagues are quite familiar with by now is entitled, ``A New Era of Responsibility--Renewing America's Promise.'' While this is a nice title for which I commend the President, it does not sound like the appropriate name for a work of fiction. Because of the impact of the policies outlined in this budget, a more fitting title might be, ``How To End America's Global Leadership and Prosperity Without Really Trying.'' Even better, it sounds more like a 1973 Disney animation entitled ``Robinhood.''

In this Oscar-nominated movie about a legendary outlaw, I think a colloquy between Little John and Robinhood sums it up best. Little John said:

You know somethin', Robin? I was just wonderin', are we

good guys or bad guys? You know, I mean our robbing the rich

to give to the poor.

Robinhood responded:

Rob? Tsk, tsk, tsk. That's a naughty word. We never rob. We

just sort of borrow a bit from those who can afford it.

Simply stated, this budget declares war on American jobs and on the ability of American businesses to save or

create them. It is bitingly ironic, since on the first page of the budget message the President said that the time has come, ``not only to save and create new jobs, but also to lay a new foundation for growth.''

The only thing this budget lays the foundation of growth for is more Government spending and more taxes.

Indeed, this budget is so bad, it is hard to know where to begin to describe what is wrong with it. But let's start with the tax provisions beginning on page 122 of the budget. Right there in black and white are the administration's plans to increase taxes on American businesses-- the only entities that can create and save jobs on a permanent basis-- by a minimum of $1.636 trillion over 10 years. I say ``minimum'' because the total amount may be much higher, as I will explain a little later in my remarks.

This budget is a masterpiece of contradiction. For example, it promises the largest tax increases known to humankind while promising tax cuts to 95 percent of working families. In reality, the President wants to play Robinhood by redistributing trillions of dollars from those who already pay the lion's share of this Nation's income taxes and give a significant portion of it, through refundable tax credits, to those who now pay no income taxes at all.

The budget promises millions of jobs to be saved or created but takes away the very means for the private sector to perform this job creation through increases in capital gains taxes, carried interest, and the top individual rates where most business income is taxed.

The budget is also contradictory to stimulating the economy. On one hand, it claims to provide $72 billion in tax cuts for businesses, but on the other hand, the budget raises $353 billion in new taxes on businesses, not counting the hundreds of billions--perhaps trillions-- more in so-called ``climate revenues.''

The budget decries the role of housing in bringing about our economic crisis. It reduces the value of millions of homes by reducing the value of the home mortgage interest deduction. The budget talks about struggling families but reduces the incentive for taxpayers with the means to donate to charity to do so.

The President claims this budget is free from the trickery and budget gimmicks that have characterized those of previous administrations, but he then assumes the extension of all the 2001 and 2003 tax relief and the AMT patch into the baseline and then eliminates some of the same tax relief and counts it as new revenue. I could go on and on about other contradictions and ironies in this budget outline, and this is likely just a preview. Wait until we get all the details.

The budget outline indicates tax increases of $990 billion over the next 10 years in so-called ``loophole closers'' and ``upper income tax provisions dedicated to deficit reduction.'' This is in addition to at least $646 billion more in so-called ``climate revenues.''

In short, President Obama is proposing to raise taxes at a time when we are in a recession. The last time we raised taxes during a recession, we went into a depression.

The President claims these tax hikes will not take effect until 2011, when he believes the economy will recover. This is in itself a huge contradiction. Why is it not a good idea to raise taxes this year, but it is OK to do so 2 years hence, when most economists believe we will just begin to recover from the most serious downturn since the 1930s? Huge new taxes in 2011 may be as dangerous to our long-term recovery as putting them in place right now. I find it very interesting that the new administration and many of our colleagues on the other side of the aisle recognize tax increases have a negative effect on economic growth. So please explain again why they would be a good idea 2 years from now. If the President believes the economy will have recovered by 2011, then why does he keep using the fear of a looming, deep recession to push forward his spending projects? Is it because he knows the economy will rebound with or without the ``Making Work Pay'' tax credit for funding for infrastructure? This budget would make the Making Work Pay tax credit permanent. If this credit, which costs the taxpayers $116 billion for just 2 years in the stimulus bill and would cost more than half a trillion dollars over 10 years in this budget, is a stimulus measure, as we were told, why is it included in the President's budget beyond 2011, when he predicts the economy to recover?

Let us take a look at the single largest tax increase proposal in the history of the world--a huge tax on middle-income people--the so-called ``climate revenues'' that are listed at $646 billion over 10 years. The proponents of this job-killing idea call it a ``cap-and-trade'' auction, but it is, in reality, nothing more than a gargantuan new tax on American businesses. Moreover, a close look at the footnotes of the tables reveals that this $646 billion is not even the extent of this new tax on American industry. The footnotes indicate this is just the portion of the new tax hike that will be used to pay for the Making Work Pay credit permanent and for clean energy initiatives. Additional revenues will be used to ``further compensate the public.'' It sounds like more income distribution to me.

In a briefing of staff last week, top administration officials admitted these revenues could be two to three times higher than the $646 billion listed in the budget. That means this tax could reach as high as $1.9 trillion--a $1.9 trillion tax increase. That is insane. So what we have in this first part is a brandnew tax increase on the industrial output of the United States of America, a tax that has never been levied before and which could raise as much as $1.9 trillion over 10 years, and this budget says it is all right because the proceeds of the new tax will go to ``compensate the public.''

Now, this $1 trillion-plus tax increase will mean businesses will have less money to hire new employees or pay salaries of existing employees. How are we going to compensate the hundreds of thousands or perhaps millions of workers who are employed by these industries when they lose their jobs because their companies can no longer compete because of this new tax? Will that be part of ``compensating the public''?

The next highest category of tax increases is almost as bad. The budget outline indicates it would raise $637 billion over 10 years by allowing some of the job-creating tax cuts from 2001 and 2003 to expire at the end of 2010. Now, these massive tax increases are touted as hitting only the so-called wealthy in our society; those who, in another part of the budget--page 14--are referred to as the few ``well off and well connected'' on whom the Government ``recklessly'' showered tax cuts and handouts over the past 8 years.

What this gross mischaracterization does not say is, many of these same individuals are the ones who have the ability to save or create the very jobs we need to turn our economy around.

What the Obama administration and many Democrats in Congress refuse to recognize is the fact that a majority of the income earned by small- and medium-sized businesses in America is taxed through the individual tax system. In other words, many of these small businesses pay their taxes as individuals, and they will thus be subject to these huge tax increases.

According to the National Federation of Independent Businesses, over half the Nation's private sector workers are employed by small businesses. Moreover, 50 percent of the owners of these businesses fall into the top two tax brackets which are the ones being targeted for big tax increases by the Obama budget. Let me repeat that. Fifty percent of the owners of these small businesses fall into the top two tax brackets, which are the ones being targeted for the big tax increases by the Obama budget.

The Small Business Administration tells us that 70 percent of all new jobs each year are created by small businesses. Why in the world would we want to harm the ability of America's job creation engines--small businesses--to help us create or save the jobs we so badly need right now? Why would we want to harm their ability? This is sheer folly.

President Obama claims he is providing tax relief to 95 percent of Americans. If you look closely, you will see that the budget raises the cost of living for lower wage earners. How? The budget raises $31 billion in taxes from domestic oil and gas companies. At a time when we are trying to decrease our dependence on foreign oil, we are

forcing oil companies to raise the price of gas at the pump. This increase in gas prices at the pump will have a greater impact on lower income wage earners than on anyone else.

I think this cartoon illustrated by David Fitzsimmons of the Arizona Daily Star, with a few of my edits, says it best: We will create 4 million jobs out of one side, and we will raise taxes on those who create those jobs on the other. That is a little harsh, but it kind of makes its point. I don't like to see our President depicted this way, but I have to admit it is a pretty good cartoon.

The budget outline also opens the door to universal health care by creating a 10-year, $634 billion ``reserve fund'' to partially pay for the vast expansion of the U.S. health care system, an overhaul that could cost as much as $1 trillion over 10 years. This expansion is financed, in part, by reducing payments to insurers, hospitals, and physicians. Already I am being deluged by hospitals and physicians. How are they going to survive if they get hammered this way? Now, most people don't have much sympathy for hospitals and physicians, but it does take money to run those outfits, and to take as much as $1 trillion over 10 years by reducing payments in part to insurers and hospitals is pretty serious. Highlights of these reductions include competitive bidding for Medicare Advantage, realigning home health payment rates, and by lowering hospital reimbursement rates for certain admissions.

Almost one-third of the health reserve fund would be financed by forcing private health plans participating in the Medicare Advantage Program to go through a competitive bidding process to determine annual payment rates. I wish to remind my colleagues that in the past, Medicare managed care plans left rural States due to low payments. Utah was one of the States that was severely impacted. I know my State was hurt by it.

Many other States were hurt as well, especially rural States. To correct this situation, Members of Congress on both sides of the aisle worked with both the Clinton and Bush administrations to address this issue in a bipartisan manner by creating statutory language to create payment floors for Medicare Advantage Plans. As a result, Medicare beneficiaries across the country have access to Medicare Advantage Plans, and 90 percent of them seem to be happy with those plans.

By implementing a competitive bidding process for Medicare Advantage, choice for beneficiaries in the Medicare Advantage program will be limited.

It is unclear whether Medicare Advantage programs will continue in rural parts of our country--areas such as Utah, where Medicare payments are notoriously low. You can go on and on with the many small States that are represented by Senators on the Finance Committee--including me.

I served as a key negotiator on the House-Senate conference that created the Medicare Advantage program. I cannot support any initiative that I believe will limit beneficiaries' choices in coverage under this program.

Another outrage and irresponsible attack on U.S. jobs is contained in the proposal the budget calls ``implement international enforcement, reform deferral, and other tax reform policies.'' This line item is estimated to raise $210 billion over 10 years. This vague description can really mean only one thing: The Obama administration plans to tax the foreign subsidiaries of all U.S.-owned businesses on their earnings whether they send the money back to the United States or keep it invested in a foreign country. This is similar to requiring individual taxpayers to pay taxes each year if the value of their home or investments goes up even if they do not sell them.

The real danger of this proposal, however, is its impact on U.S. companies and their ability to compete in the global marketplace. Almost all of our major trading partners tax their home-based businesses only on what they earn at home. The rest of the world taxes it that way. They don't tax their businesses for moneys earned overseas that don't come back. Those moneys are taxed there. The U.S. system is practically the only worldwide system in the industrialized world.

What this means is that an American company that is competing for business in some other nation--let's say India--may have competitors from France, the UK, and Germany. Because these other nations don't tax their companies on profits earned in countries other than the home country, they would enjoy a significant competitive advantage over any U.S. company, which, under the Obama proposal, would have to pay U.S. taxes on any profits earned. The result would simply be that multinational businesses would shun the United States and relocate elsewhere, as many have already done. A lot of Fortune 500 companies have left our country, in part because of tax ideas such as this. They don't want to go. U.S. firms will become ripe for international takeovers, and we would lose our global leadership, prestige, market share, jobs, and the bright future our country has enjoyed for decades.

In 1960, 18 of the world's largest companies were headquartered in the United States. Today, just eight are based in the United States. We have the largest corporate tax rates of any major country in the world. Can you imagine, if we reduced those rates, as I and other Republicans have suggested, from 35 to 25 percent, the jobs that would be automatically created? I cannot begin to tell you.

In 1960, we had 18 of the world's largest companies right here in the United States. Today, we only have eight based in the United States, partly because of these stupid, idiotic tax changes. If we pass this proposal, within a short time, there will be none. I predict that. The United States will be the last place on Earth businesses will want to locate.

I will show you this poster: Effect of Taxing U.S.-owned Subsidiaries. The United States has the second highest corporate tax rate. Again, in 1960, 18 of the world's largest companies were headquartered here. Today, only eight of the world's largest companies are headquartered in the United States. This is part of the reason.

The President believes our Tax Code includes incentives for U.S. businesses to ship jobs overseas, and this proposal is an attempt to end this practice. However, the evidence shows that our tax laws do not lead to U.S. job loss but to increases in U.S. employment when companies invest overseas.

We have all heard the accusations, time after time, right here on the Senate floor. It goes something like this: U.S. companies close their plants here, laying off all of their workers, just to move their production to a lower wage paying country, where those same goods are made with cheap labor and then shipped right back into the United States. Well, these accusations are largely unfounded. In 2006, just 9 percent of sales of U.S.-controlled corporations were made back to the United States. Our companies are not sending production jobs for U.S. products overseas. Instead, they are making products overseas for the overseas market, and they are doing it for solid business reasons, such as transportation savings, not for tax reasons.

Moreover, the evidence shows that the U.S. plants of companies without foreign operations pay lower wages than domestic plants of U.S.-owned multinational companies. This means companies that have overseas operations pay more to their U.S. workers than those that do not invest in other nations.

Studies by respected economists show that increasing foreign investment is associated with greater U.S. investment and higher U.S. wages. Overseas investment by U.S. companies is generally a good thing for the U.S. economy and for U.S. jobs. Attacking the deferral rule, as the Obama budget proposes, would do horrendous damage to our ability to compete in an increasingly global economy and will lead to our loss of world industrial leadership.

Just this week, I talked to one of the leading pharmaceutical CEOs in America. This leader and his family all came to America. They love this country. They don't want to leave. He made it very clear that if this type of tax law goes through, he is going to move to a more fair country. He will have to in order to compete. He probably will move his operations to Switzerland, where they are not treated like this. He doesn't want to do that--leave this beloved country--but to compete he would have to. All those jobs would go from here to there. I don't know who is thinking about this in the Obama administration, but they better start thinking about it.

I could go on about why this is the worst budget proposal I have seen in all of my nearly 33 years in this body. However, I will simply focus on one more reason.

President Obama has said this budget would allow us to reduce the Federal deficit by half over the next 4 years. While this is a noble goal, unfortunately, it is not one he can claim. Using the only common baseline there is, which assumes no change to current law, the deficit would decline--if we had no changes in current law--from $1.428 trillion in 2009 to $156 billion in 2013. That is including the expiring tax cuts. To put it in other words, if we do nothing, according to CBO, the deficit would decline by 90 percent over the next 4 years. Let me say that again. If we do nothing, the Federal deficit would decline by 90 percent, according to the estimates. President Obama proposes to reduce that decline to 50 percent by adding more Government spending.

I wish President Obama would follow his own lofty rhetoric. He says he wants to save and create jobs. We all do. But the way to do it is not through the job-killing policies found in this budget. He said it is time for honest and forthright budgeting. But this document is just a means for him to put forth his ultraliberal philosophy while claiming to be fiscally responsible. As you can see from this cartoon, the President talks the talk, but this budget doesn't walk the walk. Again, I know he probably laughs at these things, as I do when they do it to me. I don't want to treat the President like that, but it does make the point. He talks bipartisanship, he talks fiscal responsibility, but everything they are doing can be called irresponsible by good people who understand economics.

Look, I happen to like this President. I happen to want him to succeed. I care for the man. He is bright, articulate, and charismatic. I think that is apparent by the way the general public treats him. They want him to succeed. I do too. He doesn't write this budget himself. I don't blame him for this, except it is under his auspices that it is being touted. He has bright people around him. It is tough to find people brighter than Larry Summers; I think a lot of him. Joe Biden is very bright, and he knows a little bit about this. Joe admits that he is a self-confessed liberal. They are allowing this to go forward at a time when they are going to hurt this country rather than help it. I think we have to point some of these things out, and hopefully the President will see some of these things and say: Holy cow, I didn't realize this was in the budget. It is pretty hard because most people don't know what is in the budget. I doubt he has had a chance to read it. I want him to succeed, but he is not going to succeed with this kind of a budget.

This country is resilient, and maybe the country will pull out of this no matter what he does. I think we are in very trying times. This is the greatest country in the world. I don't want to see it diminished in any way. I am prepared to do things--people know that around here-- to bring people together on both sides and help this President be successful. He has made overtures to me, and I very much respect him and I appreciate that. I want to help him.

I have to tell you that one of the reasons I am giving these remarks today is because I am very concerned about this type of a budget. We have put up with this kind of stuff in both Democratic and Republican administrations. It is time to quit doing it and start facing realities in this country. I see as much as a $5 trillion deficit in the near future. It is hard to even conceive of that. Yet that is where we are headed.

I want Mr. Geithner to succeed. Everybody knows I stood firmly for him in spite of all of the problems. He is a very bright guy, and I hope he succeeds. I will do what I can to help him, as a member on the Finance Committee and other committees as well.

They are not going to succeed with this type of budget. If they do, it will only be temporary. Our kids are going to pay these costs. They are going to pay for this mess. Elaine and I have 23 grandchildren I am concerned about, and 3 great-grandchildren. I don't want to stick them like this. I hope the President will get into it a little bit more, and I hope Larry Summers will get into it a little bit more. I think they have been taking advantage of a crisis to pass a huge welfare agenda that is going to hurt this country.

I suggest the absence of a quorum.

Mr. President, I rise to introduce with Senate Judiciary Committee chairman Patrick Leahy the Patent Reform Act of 2009, S. 515. I consider introduction of this bill to be a milestone in the progress we have made so far in the effort to reform our patent system--a system that has not been updated significantly since 1952. There is no doubt we have come a long way in our pursuit to accomplish comprehensive patent law reform. Reform is so vitally necessary to keep our nation competitive in our technologically advanced global economy, especially during these difficult economic times.

I have always believed that passing patent reform legislation would be a multi-Congress endeavor. The Hatch-Leahy patent bill, S. 3818, formally started the legislative process in 2006. We continued the momentum in the 110th Congress by introducing S. 1145, the Patent Reform Act of 2007. In June 2007, my colleagues and I on the Senate Judiciary Committee approved S. 1145 by a vote of 13-5. While I would have liked to see S. 1145 pass the full Senate, I believe the process already provided makes passage of the Patent Reform Act of 2009 even more likely this Congress.

S. 515 represents a bipartisan and bicameral commitment to streamline our nation's patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.

House Judiciary chairman John Conyers and ranking minority member Lamar Smith are true partners in this important legislation. For those who might say nothing has changed, I can attest that it has. Just look at the bill. We have listened to many of the concerns raised by stakeholders and have changed the legislative text accordingly.

Let me highlight some of the significant changes we have made to the bill.

For example, S. 515 does not contain an applicant quality submissions provision due to near uniform opposition we heard from the patent community about the burdens this would place on applicants.

Additionally, the Patent Reform Act of 2007 would have eliminated the current opt-out provision for publication of patent applications. Current law permits applicants to request upon filing that their application not be published at 18 months if a certification is made that the invention disclosed in the application has not and will not be the subject of an application filed in another country. Because of serious concerns raised by independent inventors and small entities, we have removed this provision from S. 515.

Patents may be challenged either in court or at the U.S. Patent and Trademark Office, USPTO. The current administrative review process at the USPTO is widely viewed as ineffective and inefficient. Accordingly, last year's bills proposed a process more like a court proceeding than the current re-examination process. Both bills had a 1-year window for challenges during which patents would not be presumed valid, and a patent could be invalidated by a ``preponderance of evidence'' against it. However, the Senate bill, S. 1145, added a second window during the life of the patent where only ``clear and convincing'' evidence could invalidate the patent. Most in the patent community prefer the post- grant review language as passed in the House because, instead of creating a ``second window,'' it improved upon the existing inter- partes reexamination. As such, S. 515 adopts the House approach to expanding interpartes, but includes ``public use or sale in the United States'' as a basis for challenging a patent. Further, our bill ensures that ex parte reexamination proceedings are maintained, which is an important tool for challenging patents that should not have issued.

With patent litigation costs escalating, the threat of enhanced damages can be quite substantial. For this reason, the Senate and House bills introduced in the 110th Congress narrowed the circumstances under which treble damages could be awarded for willful infringement of a patent. After introduction of the Patent Reform Act of 2007, the Federal Circuit issued an in banc decision, In re Seagate, which instituted an objective recklessness standard to prove willfulness. After considerable discussion with stakeholders in the patent community, we believe the Seagate decision is a positive improvement to the law and, therefore, have sought to incorporate correlating language into S. 515.

There are other changes we made to the Patent Reform Act of 2009, but I want to focus my remaining remarks on two key issues: how damages are awarded in infringement lawsuits and inequitable conduct reform.

I am aware of the concerns that some have raised about the damages provision contained in S. 1145. I have heard from some who are concerned that courts have allowed damages for infringement to be based on the market for an entire product, when all that was infringed is a minor component of the product. I have also heard from some who argue that the current language will severely limit the amount of damages an infringer has to pay, thereby encouraging infringing behavior.

The sponsors of the Patent Reform Act of 2009 all agree that we need to improve the damages provision. In crafting a fair damages provision, we can rely upon well-reasoned and persuasive case law, scholarship, and other texts. I am confident that we will achieve consensus language in this area, but make no mistake: it will take willing partners to craft a compromise that will not have deleterious affects on any one sector of our economy.

For years I have been arguing if we are serious about enacting comprehensive patent law reform then we must take steps to ensure that the inequitable conduct doctrine is applied in a manner consistent with its original purpose: to sanction true misconduct and to do so in a proportional and fair manner. Inequitable conduct reform is core to this bill, as it dictates how patents are prosecuted years before litigation. The inequitable conduct defense is frequently pled, rarely proven, and always drives up the cost of litigation tremendously.

Under current law, any perceived transgression of the patent owner is being painted as ``fraud.'' If an inequitable conduct claim wins, a valid patent will be held entirely void, and the infringer walks away without any liability. There is virtually no downside for the infringer to raise this type of attack. This is why inequitable conduct challenges are raised in nearly every patent case. It has become, in the words of the Federal Circuit, a ``plague'' on the patent system.

The development of a more objective and clearer inequitable conduct standard will remove the uncertainty and confusion that defines current patent litigation. We cannot settle for mere

codification of current practices. Chairman Leahy and Chairman Conyers both know of my strong interest in this area and have agreed to incorporate changes to the law. There is no doubt that inequitable conduct reform has the potential to single-handedly revolutionize the manner in which patent applications are prosecuted. Arguably, reform in this area will have the most favorable impact on patent quality and the ability for the USPTO to reduce its pendency--thereby fostering a strong and vibrant environment for all innovation and entrepreneurship.

Now more than ever, our industries need reassurance and predictability in order to move forward in these challenging times. I believe the Patent Reform Act of 2009 has the potential to complement all of the stimulatory efforts currently under way. Now is the time to act.

Mr. President, I rise to introduce with Senate Judiciary Committee chairman Patrick Leahy the Patent Reform Act of 2009, S. 515. I consider introduction of this bill to be a milestone in the progress we have made so far in the effort to reform our patent system--a system that has not been updated significantly since 1952. There is no doubt we have come a long way in our pursuit to accomplish comprehensive patent law reform. Reform is so vitally necessary to keep our nation competitive in our technologically advanced global economy, especially during these difficult economic times.

I have always believed that passing patent reform legislation would be a multi-Congress endeavor. The Hatch-Leahy patent bill, S. 3818, formally started the legislative process in 2006. We continued the momentum in the 110th Congress by introducing S. 1145, the Patent Reform Act of 2007. In June 2007, my colleagues and I on the Senate Judiciary Committee approved S. 1145 by a vote of 13-5. While I would have liked to see S. 1145 pass the full Senate, I believe the process already provided makes passage of the Patent Reform Act of 2009 even more likely this Congress.

S. 515 represents a bipartisan and bicameral commitment to streamline our nation's patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.

House Judiciary chairman John Conyers and ranking minority member Lamar Smith are true partners in this important legislation. For those who might say nothing has changed, I can attest that it has. Just look at the bill. We have listened to many of the concerns raised by stakeholders and have changed the legislative text accordingly.

Let me highlight some of the significant changes we have made to the bill.

For example, S. 515 does not contain an applicant quality submissions provision due to near uniform opposition we heard from the patent community about the burdens this would place on applicants.

Additionally, the Patent Reform Act of 2007 would have eliminated the current opt-out provision for publication of patent applications. Current law permits applicants to request upon filing that their application not be published at 18 months if a certification is made that the invention disclosed in the application has not and will not be the subject of an application filed in another country. Because of serious concerns raised by independent inventors and small entities, we have removed this provision from S. 515.

Patents may be challenged either in court or at the U.S. Patent and Trademark Office, USPTO. The current administrative review process at the USPTO is widely viewed as ineffective and inefficient. Accordingly, last year's bills proposed a process more like a court proceeding than the current re-examination process. Both bills had a 1-year window for challenges during which patents would not be presumed valid, and a patent could be invalidated by a ``preponderance of evidence'' against it. However, the Senate bill, S. 1145, added a second window during the life of the patent where only ``clear and convincing'' evidence could invalidate the patent. Most in the patent community prefer the post- grant review language as passed in the House because, instead of creating a ``second window,'' it improved upon the existing inter- partes reexamination. As such, S. 515 adopts the House approach to expanding interpartes, but includes ``public use or sale in the United States'' as a basis for challenging a patent. Further, our bill ensures that ex parte reexamination proceedings are maintained, which is an important tool for challenging patents that should not have issued.

With patent litigation costs escalating, the threat of enhanced damages can be quite substantial. For this reason, the Senate and House bills introduced in the 110th Congress narrowed the circumstances under which treble damages could be awarded for willful infringement of a patent. After introduction of the Patent Reform Act of 2007, the Federal Circuit issued an in banc decision, In re Seagate, which instituted an objective recklessness standard to prove willfulness. After considerable discussion with stakeholders in the patent community, we believe the Seagate decision is a positive improvement to the law and, therefore, have sought to incorporate correlating language into S. 515.

There are other changes we made to the Patent Reform Act of 2009, but I want to focus my remaining remarks on two key issues: how damages are awarded in infringement lawsuits and inequitable conduct reform.

I am aware of the concerns that some have raised about the damages provision contained in S. 1145. I have heard from some who are concerned that courts have allowed damages for infringement to be based on the market for an entire product, when all that was infringed is a minor component of the product. I have also heard from some who argue that the current language will severely limit the amount of damages an infringer has to pay, thereby encouraging infringing behavior.

The sponsors of the Patent Reform Act of 2009 all agree that we need to improve the damages provision. In crafting a fair damages provision, we can rely upon well-reasoned and persuasive case law, scholarship, and other texts. I am confident that we will achieve consensus language in this area, but make no mistake: it will take willing partners to craft a compromise that will not have deleterious affects on any one sector of our economy.

For years I have been arguing if we are serious about enacting comprehensive patent law reform then we must take steps to ensure that the inequitable conduct doctrine is applied in a manner consistent with its original purpose: to sanction true misconduct and to do so in a proportional and fair manner. Inequitable conduct reform is core to this bill, as it dictates how patents are prosecuted years before litigation. The inequitable conduct defense is frequently pled, rarely proven, and always drives up the cost of litigation tremendously.

Under current law, any perceived transgression of the patent owner is being painted as ``fraud.'' If an inequitable conduct claim wins, a valid patent will be held entirely void, and the infringer walks away without any liability. There is virtually no downside for the infringer to raise this type of attack. This is why inequitable conduct challenges are raised in nearly every patent case. It has become, in the words of the Federal Circuit, a ``plague'' on the patent system.

The development of a more objective and clearer inequitable conduct standard will remove the uncertainty and confusion that defines current patent litigation. We cannot settle for mere

codification of current practices. Chairman Leahy and Chairman Conyers both know of my strong interest in this area and have agreed to incorporate changes to the law. There is no doubt that inequitable conduct reform has the potential to single-handedly revolutionize the manner in which patent applications are prosecuted. Arguably, reform in this area will have the most favorable impact on patent quality and the ability for the USPTO to reduce its pendency--thereby fostering a strong and vibrant environment for all innovation and entrepreneurship.

Now more than ever, our industries need reassurance and predictability in order to move forward in these challenging times. I believe the Patent Reform Act of 2009 has the potential to complement all of the stimulatory efforts currently under way. Now is the time to act.

Mr. President, I rise to support final passage of S. 160, the District of Columbia House Voting Rights Act.

I have spoken and written many times about my conclusion that the Constitution allows Congress to provide a House seat for the people of the District of Columbia.

And I have said for more than 30 years that Americans living in the District should have all the rights of citizenship, including voting rights.

The bill would also give an additional seat temporarily to the State next qualifying for one under the 2000 census.

I believe the bill before us is a constitutional and balanced way to achieve these important goals.

Article I, section 2, states that the House shall be composed of Members elected by the ``People of the several States.''

The District did not yet exist when those words were drafted.

The observation that this provision does not itself provide a House seat for the people of the District begs rather than answers the constitutional question.

That question is whether the House Composition Clause prohibits Congress from providing for the people of the District what the Constitution provides for the people of the States.

The Constitution uses the word ``States'' in various provisions.

Opponents of this bill have argued that some of those cannot include the District.

Once again, that observation begs rather than answers the constitutional question.

For more than two centuries, the Supreme Court has held that other provisions framed in terms of ``States'' can indeed apply to the District.

Or, even more relevant to the bill before us today, the Supreme Court has ruled that Congress can legislatively do for the District what the Constitution does for States.

I believe the House Composition Clause falls in this category.

The Supreme Court has held, for example, that Congress could apply to the District the direct taxes that the original Constitution apportioned among the several States.

Opponents of the bill before us have not even attempted to explain why the phrase ``the several States'' can apply to the District, which is obviously not a State, but the phrase ``the People of the several States'' cannot apply to the District, which obviously has population.

The Supreme Court has held that Congress can extend to the District Federal court jurisdiction over lawsuits by citizens of different States.

The great Chief Justice John Marshall wrote in 1805 that while the Constitution does itself extend such diversity jurisdiction to the District, ``this is a subject for legislative . . . consideration.''

He added that the contrary conclusion, which I take to be the position of those opposing the bill before us today, would be simply extraordinary.

Those opponents have not even attempted to explain why extending diversity jurisdiction to the District is a subject for legislative consideration but extending House representation to the people of the District is not.

The Supreme Court has held that Congress can extend to the District the restrictions the fourteenth amendment imposes upon the States.

Once again, the Court suggested that Congress's plenary authority over the District would be a sufficient basis for such legislation.

Opponents of S. 160 have cited the decision in Adams v. Clinton for the proposition that the Constitution does not provide a right to congressional representation for the District.

I agree.

That decision did not say, however, that Congress was precluded from doing so.

In fact, the court said the opposite.

The court in Adams said that while it lacked authority to grant such representation in the name of the Constitution, the plaintiffs could ``plead their case in other venues,'' including ``the political process.''

That is precisely what the bill before us represents and opponents of S. 160 have not even attempted to explain otherwise.

Let me repeat, the constitutional question is not whether the Constitution itself grants House representation to the people of the District. It does not.

The constitutional question is whether Congress may, under its explicit and plenary authority over the District, legislatively provide for the people of the District what the Constitution provides for the people of the States.

Those who say that the word ``States'' necessarily excludes the District must at least try to show that the many judicial precedents saying otherwise either were wrongly decided or are somehow irrelevant to this bill. They have not even attempted to do either.

I believe that the foundational principle of representation and suffrage, the legislative actions by America's Founders, two centuries of judicial precedent, and Congress's explicit legislative authority over the District in all cases whatsoever combine to allow Congress to enact the bill before us today.

One of my predecessors as a Senator from Utah, George Sutherland, was later appointed to the Supreme Court.

He wrote for the Court in 1933 what I believe is relevant to this debate today:

The District [of Columbia] was made up of portions of two

states of the original states of the Union, and was not taken

out of the Union by the cession. Prior thereto its

inhabitants were entitled to all the rights, guarantees, and

immunities of the Constitution. . . . We think it is not

reasonable to assume that the cession stripped them of those

rights.

More than 30 years ago, I made the same argument on this floor and later argued that one way to achieve this goal was by giving the people of the District representation in the House.

The defeat of the retrocession amendment offered by the Senator from Arizona showed that the underlying bill is the only legislative vehicle for providing this representation.

I voted for that amendment as a vote on the idea of retrocession, which I find has some general merit.

Even with my vote, however, the Senate resoundingly defeated it.

So I urge the Senate to pass this bill.

It constitutionally gives one House seat to the people of the District.

It fairly gives another seat to the State qualifying for one under the last census.

It explicitly and implicitly disclaims Senate representation for the District.

It provides for expedited judicial review.

In short, I believe this is a sound and fair way to strengthen our system of self-government so that Americans can exercise the most precious right available in a free country, the right to participate in electing those who govern us.

Mr. President, when the lights were dimmed and the spotlight shone on the empty seat at the end of Row A on the edge of the Utah Jazz basketball court last Saturday night, it symbolized so much more than the absence of its usual occupant. It demonstrated in very poignant, solemn terms the loss Utah experienced a few days ago with the death of one of its most beloved and prolific citizens, Larry H. Miller.

On Friday, February 20, 2009, Larry H. Miller quietly passed away in his home with his beloved wife and family by his side. At the age of 64, by all estimates, Larry left this earth way too early. His body had been ravaged over the past year with various medical maladies resulting from complications of Type 2 Diabetes. Yet, even though his body was physically depleted, his fighting spirit and pragmatic wisdom continued until his very last breath. I do not think anyone was really prepared to lose this mighty man.

Larry came from humble beginnings. His life story exemplified from start to finish the true American dream. By all accounts his education and intelligence was not honed in a classroom, but in the workplace of our nation. Through odd jobs and a beginning career as an auto parts stock boy, he quickly graduated to owning his first car dealership with a business deal struck in an afternoon visit with an old acquaintance.

Larry's business acumen was legendary. The risks he took were enormous and the decisions he made on a daily basis would stifle even the most experienced business leader. However, because of the risks he was willing to take and the business decisions he had the courage to make, the impact he left in every corner of our State cannot be overstated.

From the days of his first car enterprise, his empire grew to include many car dealerships, movie theaters, restaurants, television and radio stations, a first-class sports arena, a race track, sports memorabilia and apparel stores, a professional baseball team, and of course, our cherished Utah Jazz.

His professional life was punctuated by hard work, ingenuity, and good old-fashioned common sense. He was a man who wore many hats, and wore them well. He was plain spoken, and very direct in sharing his thoughts and opinions. He did not live a life of flash, but one of more humble trappings. I cannot think of Larry without picturing him at so many events, no matter the importance, in his trademark casual pants and golf shirt. He was a man who lived by his own creed, and never let anyone else define him.

The relationships he developed, and consequently shared with Utah, have brushed our community with great color. Karl Malone, John Stockton, Jerry Sloan, Deron Williams, Thurl Bailey, Mark Eaton, and Jeff Hornacek are only a few people Larry befriended, hired, and mentored who have provided many hours of great sports entertainment to fans across the country. I know that personalities from time to time would clash, but at the end of the day Larry, and those who worked for or played for him, shared a mutual respect and love not often found in professional sports today.

Larry not only contributed mightily to Utah's business climate, he also served in so many ways to improve the lives of people from all walks of life. His sense of community, and love for our State, were felt by all who came into contact with him. He did so many generous acts of service for his fellow man, quietly and behind the scenes, which most will never know occurred. He believed in people, and he loved helping many find the right path to follow.

Larry Miller will forever be remembered for his business empire and leadership skills, but perhaps his greatest contribution was in the walls of his own home. He loved and cherished his wife of 48 years, Gail, as well as his five children, 21 grandchildren, and one great- grandchild. He tutored them in the ways of business, but more importantly, in the love of family. As he began facing later years, Larry was quoted on many occasions stating his renewed desire to be the kind of husband, father, and grandfather he wanted to be. Within hours of Larry passing away, Gail and their children held a news conference praising the man they had known and loved. Their strength in his passing, I believe came from the love and care Larry had bestowed on each of them throughout his life.

Utah lost a great man, and I lost a treasured friend. Throughout the years of my service in the United States Senate I would often look to Larry Miller for his wisdom and strength. He was a rare person to find in the political world, someone who worked for the good of our State and its people, instead of furthering his own ambitions. He wanted to be remembered for his ``love of Utah.'' And anyone who crossed paths with Larry can attest to his passion and love for our great State.

Perhaps Larry H. Miller's life can best be summarized in his own words quoted in the Deseret News this week. He said, ``You know, I don't want this to sound boastful, but I really have had an extraordinary life.'' Yes, Larry did live an extraordinary life and I honor him for the contributions he made to Utah, its citizens, and most importantly to his family. His influence will never be forgotten, and his example will be followed by generations to come.

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

Madam President, my friend from Arizona, Senator McCain, this morning raised what he called a constitutional point of order about S. 160. I would like to just respond to a few of his arguments.

He is my friend, and I appreciate his leadership in this body. I appreciate the fact that he went through this great campaign and asserted such influence but also such dedication to this country. I have appreciated his dedication to our country ever since I met him. But I do have some comments to make about his constitutional point of order.

The Senator from Arizona said that this bill is obviously, plainly, and blatantly unconstitutional because the District is not a State.

For him, the constitutional debate apparently begins and ends with a single word.

As I said on Tuesday, however, noting that the District is not a State is a factual observation; it is not itself a constitutional argument.

It is a premise, not a conclusion.

There are many other factors to consider in order properly to answer the constitutional question.

The Senator from Arizona is entitled to answer that question however he choose, but I believe it is necessary to at least consider the factors relevant to the answer.

I, for one, have not avoided the constitutional issue.

I have confronted the issue directly.

I have testified about it before the Senate Homeland Security Committee.

I have spoken about it on this floor.

I have written and published an extensive article about the issue.

I have sent that article to my colleagues, including to the Senator from Arizona.

I do not demand, or even expect, that my colleagues necessarily agree with me on this issue, but I would like to hear at least an attempt to respond to those arguments.

America's founders, those who wrote the Constitution we are talking about, passed legislation allowing Americans living on the land ceded for the District to vote in congressional elections. They did that.

That land was no more a State in 1790 than the District is today.

Those Americans did not live in a State.

I do not understand why treating District residents today as if they lived in a congressional district is constitutionally different than treating them in 1790 as if they lived in Virginia or Maryland.

No one argued in 1790 that doing so was unconstitutional.

It seems to me that the Constitution would have been, if anything, even more clear and plain to its own drafters in 1790 than it is to us Senators here today.

Congress has provided, by legislation, that Americans living abroad can vote in congressional elections.

They do not live in a State.

They do not even live in America.

I would like to hear from the Senator from Arizona why Congress can provide voting rights for Americans living in other countries but cannot provide voting rights for Americans living in this country.

If it were so obviously, plainly, and unequivocally obvious that the word ``States'' in the Constitution can never include the District, then the Supreme Court would not have ruled that the authority of Congress to regulate interstate commerce applies to the District.

The Supreme Court would not have ruled that the sixth amendment right to a speedy and public trial in the State where a crime was committed applies to the District.

The Supreme Court would not have ruled that Congress can extend to the District Federal Court jurisdiction over lawsuits between citizens of different States.

The Supreme Court would not have held that the apportionment of taxes among the States applies to the District.

The Supreme Court would not have upheld Congress's authority to implement in the District the fourteenth amendment's commands regarding the States.

The Supreme Court has indeed held all these things.

If Congress could not provide for the District the House representation the Constitution gives to the States, the Supreme Court would not have affirmed a decision saying that such a goal could indeed be pursued in the political process.

I assume the Senator from Arizona is aware of these and many other similar decisions over the past two centuries.

He is certainly entitled to believe that all of these decisions were wrongly decided.

But, with respect, rather than simply repeating the word States, he should at least attempt to explain why those decisions are all wrong or, in some way, are different than the issue before us now.

And, again with respect for my colleague whom I admire, these Court decisions establish that the Senator from Arizona is simply incorrect when he says that courts have consistently ruled that the word States excludes the District.

The Senator from Arizona also asked why territories would not be entitled to the same congressional representation as the District.

As the Senator himself acknowledged, however, the District is an entirely unique entity in America.

America's founders intended that the District permanently to be a jurisdiction separate from State control.

It should remain that way.

Territories, in contrast, are jurisdictions which can, and in some cases are intended to, become States.

I am unclear why the Senator from Arizona included this argument in a constitutional point of order because it is not a constitutional argument.

It is instead a political argument, and it has been raised and addressed before.

My friend from Arizona also questioned whether Utah is included in this bill.

As the Senator from Connecticut explained, both before and after the remarks of the Senator from Arizona, the House of Representatives must have an odd number of Members.

One will go to the District, and the other to the State which would have next qualified for one under the 2000 census.

As such, this decision was, as the Senator from Arizona said it should be, based on census data.

It is not, as he alleged, simply an arbitrary, irrational, backroom partisan political deal.

This debate about what the Constitution allows Congress to do is important and worthwhile.

I believe the constitutional foundation of this bill is more than sufficiently solid to justify voting for this bill and I hope my colleagues will.

I hope my colleagues will vote down this constitutional point of order which I think is not justified under either the Constitution or under our rules.

I suggest the absence of a quorum.

Madam President, I compliment my dear friend and distinguished colleague from Connecticut for the leadership he has provided on this issue and for the intelligence he has brought to this issue as well.

Madam President, I rise to support S. 160, the District of Columbia House Voting Rights Act of 2009, which I am cosponsoring with my friend from Connecticut, Senator Lieberman. This bill would give the District of Columbia one seat and Utah another seat in the House of Representatives. I will address three questions about this bill: whether Congress may pass this bill or this legislation, whether Congress should pass it, and whether the Senate bill is how Congress ought to do it. I believe the answer to all three questions is yes.

The first question is whether the Constitution allows Congress to pass this legislation. Congress may certainly increase the size of the House from 435 to 437 Members and give a new seat to Utah which qualifies for one under the formula used in the last 2000 census. The 2010 census will determine whether Utah keeps this seat. The Congress certainly has the legislative authority to grant it to us. The constitutional question is whether Congress may give the other new House seat created by this bill to the District of Columbia which is, of course, not a State. The District did not even exist when the Constitution was drafted to provide that the House be composed of Members chosen by the people of the several States. The constitutional question is whether the word ``States'' prevents Congress from providing a House seat for the District.

We should debate more often and more openly whether the Constitution allows us to do what we do. I studied the constitutional issues raised by the bill before us and published my analysis and conclusions, as the distinguished Senator from Connecticut has noted, in the Harvard Journal on Legislation for everyone's consideration.

I commend it to my colleagues.

Madam President, I wrote in that article and acknowledge here today that there are legitimate arguments on both sides. There are liberal and conservative legal experts on both sides. As we debate this bill, however, I hope those who oppose it on constitutional grounds will do more than just repeat the single word ``States.'' Noting that the District is not a State is a factual observation; it is not a constitutional argument. It is a premise, not a conclusion.

Several considerations led me to conclude that this legislation's constitutional foundation is solid. First, representation and suffrage are the heart of our American system of self-government. This principle is so fundamental that there must be affirmative evidence that America's Founders intended to deny it to Americans living in the District. That evidence simply does not exist.

Secondly, America's Founders demonstrated the opposite intention by their own legislative actions. In 1790, as the distinguished Senator from Connecticut has observed, Congress provided by legislation that Americans living in the land ceded for the District could continue voting in congressional elections. Nobody even suggested that this legislation was unconstitutional, even though the land on which those Americans lived was no more part of a State in 1790 than the District is today. If Congress could do it then, Congress can do it now.

Third, the Constitution explicitly gives Congress legislative authority over the District ``in all cases whatsoever.'' This authority has been called sweeping, plenary, and extraordinary by the courts and surpasses the authority a State legislature has over its own State.

Fourth, courts have held for more than two centuries either that constitutional provisions framed in terms of States can be applied to the District or that Congress can legislatively accomplish for the District what the Constitution accomplishes for States. Congress, for example, has authority to regulate commerce among the several States. The Supreme Court held in 1899 that this applies to the District of Columbia.

The original Constitution provided that direct taxes shall be apportioned among the several States. The Supreme Court held in 1805 that Congress's legislative authority over the District allows taxation of the District. The Constitution provides that Federal courts may review lawsuits between citizens of different States. The Supreme Court held in 1805 that Congress can legislatively extend this to the District even though the Constitution does not.

In 2000, the Supreme Court affirmed a lower court decision holding that while the Constitution does not provide congressional representation for the District, that goal can be pursued in other venues including, the Court said, ``the political process.''

Those who argue the word ``States'' in the Constitution cannot include the District must believe that all of these court decisions were wrong. They must believe that District commerce cannot be regulated, that District residents cannot be taxed, cannot sue in Federal court, and have no right to a speedy trial. They are entitled to believe that, but they should say so and defend their position.

Fifth, maintaining the District as a jurisdiction separate from State control in no way requires disenfranchising its residents. America's Founders wanted the Capital to be free from State control, and I support keeping it that way. I oppose statehood for the District of Columbia, and I think most people in this body do, but giving the District a House seat so that

its residents can participate in the process of making the laws they must obey in no way changes either the District's political status or Congress's legislative authority over the District.

These are some of the considerations leading me to conclude that the Constitution allows Congress legislatively to provide a House seat for the District of Columbia.

The next question is should Congress do so or whether Congress should do so. I believe it should. Representation and suffrage are essential to our American system of self-government. The Supreme Court has said no right is more precious in a free country than having a voice in the election of those who govern us. Congress provides by legislation for the millions of Americans living overseas to exercise that right by voting in congressional elections. They obviously do not live in a State. They do not even live in America.

Do those who believe the word ``States'' in the Constitution precludes representation for Americans living in the District, do they believe that it also precludes representation for Americans living outside the country altogether? Of course not.

I wish to emphasize the legislation before us would restore congressional representation that Americans living in the District once enjoyed. After taking up residence in 1800, Congress failed to continue by Federal law the voting rights these Americans had previously enjoyed, by Congress's permission, under State law. One member of the District City Council, Augustus Woodward, wrote in 1801 that District residents are still part of the people of the United States and that ``it is violating an original principle of Republicanism to deny that all who are governed by laws ought to participate in the formulation of them.''

I continue to believe what I stated more than 30 years ago on the Senate floor that Americans living in the District should enjoy all the privileges of citizens, including voting rights.

If Congress may and should provide a House seat for the District, the remaining question is how to do it. I believe the bill before us, rather than the House version, is the best vehicle for accomplishing that goal. First, it disclaims Senate representation for the District both explicitly and implicitly. It explicitly does so in language that the Senator from Maine, Ms. Collins, first introduced during the committee markup in the 110th Congress.

The bill States:

The District of Columbia shall not be considered a State

for purposes of representation in the U.S. Senate.

But the bill also implicitly disclaims Senate representation by treating the District as a congressional district rather than as a State even for purposes of House representation. This avoids even a rhetorical parallel to States that have only one House Member.

I wish to firmly repeat my continuing opposition to District representation in the Senate. I opposed the constitutional amendment in 1978 that would have given the District both House and Senate representation. The two Houses of Congress are designed differently: the House to represent population and the Senate to represent the States. The House is considered the people's body, the Senate the State's body. The 17th amendment changed how Senators are elected but did not change the Senate itself or its place in the design of Congress.

In addition, as I argued in 1978, adding a nonstate jurisdiction to the Senate would disrupt the equal suffrage the Constitution guarantees to the States in this body. Secondly, the Senate bill provides for expedited judicial review. The House bill does not. As I do, my colleagues take the Constitution seriously, and this provision will help ensure that, if necessary, the courts can decide the legal issues.

Third, the Senate bill allows Utah to elect its additional House Member after drawing new congressional district lines. The House bill would improperly force Utah to elect an additional Member at Large. This would create two strange situations. It would mean one House Member from Utah would have three times as many constituents as the other, and it would mean Utahans would each have two House Members, twice as many as Americans living in any other State. Utah has already demonstrated that it is willing and able to draw fair and reasonable lines to elect a fourth House Member, and Congress has no business forcing Utah to do it any other way.

Let me close by saying there are many differences between Utah and the District, to be sure, but their residents deserve to be properly represented in our National Legislature. I do not believe that representation and suffrage, the heart of self-government, should be provided based on how Americans will exercise this most precious right or which party they will likely support. I believe Congress may and should provide for that representation and ought to do so by passing the bill before us today, and I hope we will.

I yield the floor.

Mr. President, as I understand it, I have 7 minutes.

Mr. President, I enjoyed listening to my colleague from New York, as I always do. I was very interested in Senator Schumer saying that they have met us halfway. The first two bills out of this administration have been the C.H.I.P. bill--that was completely put together by Democrats without any input at all from Republicans and especially from people like me who wrote the original CHIP bill. The second bill was a stimulus package that was put together with no real impetus and no real help from the Republicans or any of us from this side. If you watched the process, it was basically we were told: Take it or leave it. When it finally passed by a narrow vote on this floor, by really 1, it immediately went into a conference where basically Republican ideas were not really considered. We were left out of negotiating this bill.

I cannot help but paraphrase one of the leaders of the White House who said: We Democrats love crises. Why? Because then we can pass legislation we would never otherwise get through the Congress of the United States or through the elected representatives of the people in the two bodies in the Congress.

I am outraged by the amount of government expansion that is contained in this bill. The Majority Democrats have seized this opportunity to put all kinds of programs in here that are not stimulus, some of which may be very valid in the regular appropriations process, but many of which are not stimulus, and are eating funds that should be going to help pull us out of these difficult times. The legislation clearly states that the funds appropriated in this bill should be for emergency uses, yet there is plenty in this legislation that is not imminent.

I have to say that when my friend from New York, Senator Schumer, talks about tax relief they put in this bill, it is not true tax relief. When you start calling it a ``Make Work Pay'' tax credit, where they give refundable tax credits to people who do not pay income taxes, that is not a tax cut. It is not even tax relief. It is a cost to everybody else who works and pays income taxes, and it is not going to produce any jobs.

Now, I am not against helping those who do not pay income taxes. I am not against helping people who are out of work. But, let's call it what it is--spending. And let us not put this in a stimulus bill, which is supposed to be effective immediately. Those provisions will not be effective for 2 or 3 years from now.

I have been in the Congress 33 years this year. There has not been one day in my 33 years in the Senate where the fiscal conservatives point of view has been in the majority, not one day. We have won some battles because of great Presidential leadership or just plain gutsy leadership by the conservative Republicans, fiscal conservative Republicans. But, the Congress has been run by the more liberal left Democrats and a few Republicans who will side with them on these issues. This has created too much spending.

One of the Senators on the floor yesterday said, how can we take advice from people who ran us into bankruptcy over the last 8 years?

Well, Congress has exceeded the President's budget 20 times in the past 28 years. And it has always been because of the liberal left along with a few liberal Republicans to make a majority in the Senate.

Since President Reagan, Congress has exceeded the President's budget every year except the years when President Clinton was in the White House. Now, why did we match President Clinton's budget when he was in the White House? It was the first time you had a Republican Congress, and a President who agreed to a lower budget.

Today, the government spending as a percentage of gross domestic product is moving towards 40 percent. That is government spending as a percentage of GDP that is more in line with Europe. 40 to 50 percent spending of GDP is where Europe is. We are going through the ``Europeanization'' of the United States of America.

We have always had to give in to the left, because they have always been too many liberal people and a few Republicans who support liberal spending. This has led to threats to our principles of freedom, self- reliance, and market-driven prosperity.

An example is how our government is taking over the financial sector. Why are managers and shareholders of failed financial institutions not first in line to bear the consequences of their mistaken actions? Why are we not following the principles of a free market society?

The economy has been stronger than the Democrats have been portraying it during those Republican years and during the Bush years, in particular. Democrats keep blaming the current economic decline on the failed economic policies of the past 8 years. But the economy grew each year over the past 8 years. We have only seen a decline in GDP over the past 6 months under which both Houses being controlled by Democrats. Do not miss the point. Over all of these years, we have had a liberal control of spending in the Congress, and you cannot blame President George W. Bush for that. He could have vetoed more, I have got to admit that, but the spending came from the left.

We are headed toward Government spending being 40 to 50 percent of our gross domestic product. And since the bailouts started last year, we have only added nearly $2 trillion to our national debt. That did not happen when Republicans were in control of the Congress. The financial rescue package with $700 billion and more for AIG and other banks, we are beginning to wonder when the spending will end.

I was amazed that in the last election, the Democrats, who had voted for the financial rescue legislation, went out and chewed up a few Republicans who also voted for that legislation. Even though most of the Democrats voted for it, they chewed Republicans up for voting for it and defeated them at the polls--talk about hypocrisy.

We have seen very little success for our money, but even worse, we have used it to save management and shareholders of big banks, even as homeowners were forced into default and Main Street businesses faced bankruptcy. Now we have a stimulus package of $787 billion.

While there is bipartisan concern over the economy, this is a partisan plan. This stimulus bill will explode the size of Government. Why? Because the more you explode it, the more you get people dependent upon the almighty Federal Government. The liberals who have been running us into bankruptcy over all of these years will put us even more into debt.

I think conservatives need to be more alert. If these provisions are made permanent, and there will be a massive attempt to make these permanent, the expansion of Government is going to be enormous. I do not know what you call it other than socialism.

Do not get me wrong. I am for a stimulus bill that would work, that would help homeowners, that would strengthen research and development, that would cut corporate and small business tax rates so that they can employ more people, that would move farther and farther toward creating jobs. That would be effective.

However, this bill does not do that. I hope our colleagues will vote against it. We have to stand up on something, and this is a bill we should stand up on.

I yield the floor.

Mr. President, I rise to express my opposition to the conference report that has been granted and put together accompanying the American recovery and Reinvestment Act of 2009, more commonly known as the stimulus package.

When I spoke on the floor last week about my disappointments in the Senate version of the stimulus bill, I did not think the bill would get much worse in conference. In fact, I harbored some hope it would actually improve. Unfortunately, I was wrong.

What we have seen emerge from the conference weakens the stronger provisions of the Senate bill and worsens the less effective provisions.

Many Utahans have called and written me to express their concerns about this stimulus package and the process by which it has been legislated. They are rightly worried about the consequences of an economic stimulus package that, with interest, will cost taxpayers well over $1 trillion. That is just the beginning, by the way. They are particularly worried it will be ineffective in saving or creating jobs.

Last year, President Obama's campaign was based on ``hope not fear.'' That is until he needs fear to help him pass a bill, as Charles Krauthammer of the Washington Post points out. The pressure is on the majority to convince the American people this is the right economic package.

On Tuesday, President Obama spoke to the American people, not about the audacity of hope but rather to instill fear into Americans. He said at that time:

A failure to act will only deepen the crisis as well as the

pain of Americans.

He also said:

The Federal Government is the only entity left with the

resources to jolt our economy.

While I do not disagree with these statements, it is wrong to use fear to force the completion of an unbalanced, largely partisan package that the Congressional Budget Office estimates will create at most 1.9 million jobs by the end of 2011 and leave us with a lower gross domestic product in 10 years than if we do nothing at all.

Keep in mind, the head of the Congressional Budget Office is a Democratic appointee.

It is clear we are in an economic recession and that action is needed to stimulate the Government. I think every one of our colleagues agrees with this. What troubles me is the misperception about why most Republicans are opposed to this bill. The President and many of our Democratic colleagues have unfairly implied that Republicans prefer to do nothing. That is absolutely not true. Yes, we are opposed to this bill, but we are not opposed to stimulating the economy. We simply want to do it in the most effective and least wasteful way as possible. We do not want to see us make a $1 trillion mistake, and this is a $1 trillion-plus mistake.

Yet we Republicans were shut out of negotiating the final conference report, which is something President Obama vowed to the American people he would change. According to President Obama's Presidential campaign Web site, change.gov, he vowed to ``end the practice of writing legislation behind closed doors.''

Specifically he said he would `` . . . work to reform congressional rules to require all legislative sessions, including committee mark- ups, and conference committees, to be conducted in public.''

That certainly did not happen here. I believe this bill could be much more effective and so does President Obama. At his Tuesday press conference, he admitted as much when he said:

I cannot tell you for sure that everything in this plan

will work exactly as we hope.

That concerns me. If we plan to spend an amount equal to the 15th

largest economy in the world, we ought to make sure the stimulus plan is drafted in the most effective way possible.

For example, many economists say the make work pay tax credit provision in the plan, which will give workers roughly $15 more a week in each paycheck, will largely be ineffective in stimulating the economy. It is not going to help the economy. Yet it is a tremendous cost, around $150 billion, that could have easily been spent on something that would help the economy, create jobs. I suggested the research and development tax credit by making that permanent. I cannot begin to tell you how that would keep our unqualified lead in the high- tech world.

My objection to this bill is not based on the fact it includes spending, it is because it lacks an effective balance of spending and tax relief.

If we look closely at the bill, we will see that much of what the majority lists as tax relief is actually spending. In other words, those who do not pay any income taxes, as well as State and local governments, are receiving money through the Tax Code. How can there be tax relief to those who do not pay taxes? That is more taxes for those who do. Tax relief from what? I am not saying those who do not pay income taxes should not benefit from this stimulus package. I am saying if you are going to give money to people who do not pay taxes, call it what it is--it is spending, it is not tax relief.

Like I say, I would far rather would have had a permanent research and development tax credit, which would cost about only two-thirds of what they are going to spend on this so-called make work pay provision that would create millions of jobs in America and throughout the world.

In fact, when one adds up all the provisions in the bill, more than 70 percent is spending and less than 30 percent is real tax relief. Where is the balance? Even worse, only one-half of 1 percent of this bill--one-half of 1 percent of this bill--is devoted to tax relief to help struggling businesses keep their doors open. One-half of 1 percent--that is pathetic. We know small business produces most of the jobs. Yet this is what we are doing. Moreover, the bill fails to adequately address the housing crisis. Unfortunately, the $15,000 tax credit for home buyers, which is one of the few bipartisan amendments accepted into the Senate bill during the Senate debate, has now been watered down drastically. So has the other major bipartisan amendment added on the Senate floor--the deduction for interest on a new auto loan. And one of the few provisions to help struggling companies keep their doors open--the expanded period for carryback net operating losses--has been erased from the conference report, except for small businesses.

Now, I have some news for my Democratic colleagues. Small businesses are not the only companies that are laying off workers. Allowing companies to get quick refunds of taxes previously paid was one of the few smart and efficient provisions in the Senate bill, designed to directly save jobs. Now that has been whittled down to a mere shadow of what it was.

I worry that my friends on the other side of the aisle are looking through rose-colored glasses, spectacles tinted by spending priorities, such as expanding Government programs, which they hope will stimulate the economy. They are trying to convince America that spending millions on Government vehicles will somehow stimulate the economy. They refuse to listen to even the President's Chair of the Council of Economic Advisers, Christina Romer, who in a study determined that every dollar of Government spending increases the gross domestic product by $1.40, while every dollar of tax relief increases the gross domestic product by $3. That is what the study says. The President's own Chair of the Council of Economic Advisers says that $1 of Government spending equals a $1.40 increase in GDP, but if you do it in tax relief, $1 will give you a $3 increase in GDP. Doesn't take too many brains to figure out it is far better to do it the second way.

The Congressional Budget Office recently estimated that the Senate version of this so-called stimulus package would only save or create between 600,000 and 1.9 million jobs by the end of 2011. At a cost of $1.2 trillion, including interest, the cost to the taxpayer for each job saved or created under the plan is at least $632,000 and as much as $2 million if that goes up. We are spending taxpayer money to create one job at the rate of $632,000 per job.

Now that the Senate bill has been scaled back significantly, this job-creation estimate is almost sure to go down significantly. We can do better than this, Mr. President. This is not good enough for Government work. With the amount of money spent in this bill, you could give every man, woman, and child in America $4,000. I think Utahns and all Americans would put $1.2 trillion to better use than what this bill does.

A large share of this stimulus bill will go to States to implement temporary programs. When that funding runs out, what do we tell all of those employees who were hired and now have to be let go? Will we say: Sorry, this is just a temporary job. Who are we kidding? This makes about as much sense as denying an undefeated football team the chance to play in the national championship game. I know that sounds a little bit like sour grapes since the University of Utah was the only undefeated team this last year but had absolutely zero chance to play in the national championship game.

The majority knows the American people want to see more tax relief in this stimulus bill. A February 9 poll conducted by the Rasmussen Report found that 62 percent of U.S. voters want the plan to include more tax relief and less Government spending. It appears as if the more time Americans have to review this bill, the less they like it. That is certainly the case for me.

While time is of the essence, we cannot afford to get this wrong. The stakes are too high. Yet President Obama has chosen to break the theme of his Presidential campaign and use fear to hurriedly pass this flawed economic stimulus package. Now, I am not sure I can blame him for that because he is stuck with what the people up here have done to him and to what he said he would do. So I suppose he was limited to using fear to get this package passed. I have a lot of respect for him. I personally have helped him, and I intend to help him more. But, gee whiz, this is pathetic.

Mr. President, we Republicans realize the severity of this economic situation. We recognize the need to stimulate the economy with a balanced stimulus package that has an appropriate mix of spending and real tax relief. We want to create jobs and spur economic growth. But haste makes waste, and, like many of my constituents, I believe our efforts are about to be wasted--squandered on a stimulus bill that will stimulate more criticism and feeling of futility than the economy.

The great American poet and abolitionist John Greenleaf Whittier wrote:

For of all sad words of tongue or pen, the saddest are

these: ``It might have been!''

And while those words were written more than a century ago, they can certainly be applied now to Congress. Faced with serious recession, we need to do our very best to get the economy moving again. Instead, it looks as if this body will settle for a partisan bill that could well fail to do the job our Nation requires. We should do better. We could do much better. The American people need us to do much better. And if this legislation passes, many of us will one day shake our heads at the opportunity lost and wonder aloud about what might have been.

I have told a few people over the last number of weeks who have blamed both parties for what has gone on here over the last number of years that I have been here 33 years and there hasn't been 1 day in the Senate that I can point to where a fiscal conservative majority has been in control of the Senate--not 1 day in 33 years--because there are always enough liberal Republicans, combined with the mostly all liberal Democrats, to do just about anything they want to in spending. It is discouraging, I have to admit. We have won some battles because we have outworked the other side or we have had a President who has made a difference on some issues, no question about it. But not 1 day that I can recall where, if you count the liberals on our side and the liberals on the Democratic side and you put them together--it is usually only five or six, really, on our side--we always have the majority on

the other side. That is why President Bush was hammered all the time for his spending programs when, in fact, his budgets were at all times less than what we ultimately passed here in both Houses.

Mr. President, I would like to now take a few minutes to talk about the health care provisions in this so-called stimulus package or, more appropriately, the next installment of the ``Socialized Health Care for All Act of 2009.'' Democrats hate to hear that. They think it is terrible to hear the word ``socialism.''

President Obama recently made the media rounds stating that any delay in passing this Government spending package would be inexcusable and irresponsible. Well, today I am going to highlight certain health care provisions in this Trojan horse legislation that, in the President's own words, should be classified as inexcusable and irresponsible.

First and foremost, let me make this point again, even though I am starting to sound like a broken record. Reforming our health care system to ensure that every American has access to quality, affordable, and portable health care is not a Republican or Democratic issue, it is an American issue. When we are dealing with 17 percent of our total economy, it is absolutely imperative that we address this challenge in an open and bipartisan process.

Think about it. We are going to talk about this for just a minute. Just like the partisan SCHIP exercise preceding this bill, this stimulus legislation is another example of the Democrats justifying the current economic turmoil to simply expand our entitlement programs and make the Federal Government bigger. More and more Americans are being pushed into Government-run health care programs. Special interests have taken priority over families; politics, of course, over policy.

In this time of national crisis, we should have come together as one group to write a responsible bill for the American families who are faced with rising unemployment and dropping home values. Instead, the other side has simply chosen to turn this into a government-expansion exercise and a grab-bag of favors for the liberal special interests.

I continue to hope that the other side's promise of change was more than a campaign slogan that did not expire on November 4, 2008. Let's all remember: Actions speak louder than words.

Let me start with the COBRA provisions in this package. The Senate version of the stimulus includes more than $20 billion in subsidies for health insurance premiums for those who have lost their jobs in these tough economic conditions. However, this subsidy will only go to those Americans who had access to COBRA coverage through their employers.

Now, let me put this inequity into perspective. If you worked for a large employer, such as Lehman Brothers or Bear Stearns in New York City, which had access to a COBRA qualified group health plan, you will get help under this bill. But mom-and-pop stores in Salt Lake City that could not afford a group health plan for their hard-working employees, they get nothing. Not a thing. Now, let me repeat again--nothing. This is not only unfair, it is unconscionable.

That is not all. It gets worse. Both the Senate- and the House-passed language gave the same COBRA subsidy--50 percent and 65 percent respectively--regardless of one's income threshold. Look at this chart. You probably recognize the fellow on the left. This is Richard Fuld, the former CEO of the now-bankrupt Lehman Brothers, who made almost half a billion dollars in salary, bonuses, and stock options since the year 2000. He is going to get the same level of subsidy for his health insurance premiums as the laid-off construction worker on the right here in Utah.

I worked with Senator Grassley to write an amendment that would have applied income testing to this provision to target this taxpayer-funded help to those who needed it the most. We income test Medicare Part B for our seniors, so why not do the same for these subsidies? Unfortunately, it was not included in the Senate package.

Another concern Americans need to be mindful about is the impact of this massive COBRA subsidy on our Nation's employers, who are already struggling to meet their payroll needs.

By the way, just so everybody understands what COBRA means, if you get fired or the business ends or you have to leave the business, you have a right under COBRA to continue the insurance, but you have to pay for it rather than your employer.

Even though employers are not explicitly liable for the COBRA subsidies in this legislation, they will suffer from this phenomenon of adverse selection. A number of COBRA-eligible individuals have premiums that exceed those of active workers. Studies have shown that the average COBRA premiums are at 145 percent of active worker premium payments. According to a study by PricewaterhouseCoopers, the 10-year impact of this provision on employers, even when limited to those in the 55-to-64 age group, could be up to $65 billion. Economics 101 dictates that these additional costs will simply be passed on to employers, which in return will result in lower wages and more layoffs. This is not exactly what would qualify as ``stimulus'' in my book-- spending, sure, but definitely not stimulus.

Let me shift my attention to the comparative effectiveness provision. The idea behind this concept is simple: Compare the effectiveness of medical treatments and procedures so payers, providers, and patients can make smart choices. Sounds good. However, the difficulty arises when you decide to compare on the basis of what is cheaper rather than what works well. Both the House- and the Senate-passed versions provided $1.1 billion for comparative effectiveness, including a $400 million slush fund to be used by the Secretary at his or her discretion. Once again, this is a topic of bipartisan interest and concern that should have been discussed in the context of comprehensive reform.

We can all agree that a one-size-fits-all approach is the wrong approach for the American health care system. Based on our own personal experiences, we know that what works best for one does not always work the same for the other. Allowing comparative effectiveness on the basis of cost can have disastrous consequences not only on innovation of lifesaving treatments but also in the delivery of quality care.

On this chart, for example, we see Jack Tagg, a former World War II pilot, who in 2006 suffered from a severe case of macular degeneration. The regional health board that utilized cost-based comparative effectiveness rejected his request for treatment citing high cost, unless the disease hit his other eye also.

It took 3 years to overturn that decision. Now let's just all remember that a family member with cancer in an intensive care unit would probably neither have the time nor the resources to appeal such an egregious decision. We need to remember the real implications of these provisions--not simply in terms of political spin and special interests--but in terms of its impact on real people who are our mothers, fathers, husbands, wives, brother and sisters--children.

During the Finance Committee consideration of the stimulus legislation, Senators Baucus, Enzi, Conrad, and I discussed the importance of getting the comparative effectiveness provision right.

I believe that comparative effectiveness must focus on clinical effectiveness, not cost, and it should maintain patient choice and innovation. Failure to do so could have disastrous consequences.

As I have already said multiple times, I am disappointed that Democrats have decided to use the stimulus legislation to address health care reform in a partisan and piecemeal manner. Health IT-- information technology--is another perfect example. It is an area of consensus that should have been part of a comprehensive and bipartisan health care reform dialogue.

It is my hope that the Health Information Technology Standards Committee that is created in this legislation will take into account the work of States like Utah that already have adopted statewide HIT. standards for the exchange of clinical data. Utah is much further down the road than other States in this area. Therefore, when the committee is making recommendations for HIT standards, it is my hope that the work of States like Utah will be taken into account and seriously

considered by the HIT Standards Committee members. Utah has been a national leader in this area and I believe that its work in this area should be used as a template when national HIT standards are developed.

In addition, as we incentivize physicians, hospitals and other health care providers to use electronic health records--EHR, it is important that we provide assistance for them with both the purchase and maintenance of EHR systems. I have heard from one Utah physician in Ogden who paid over $8,000 for software only to discover that the software simply does not work. This is unacceptable. Therefore, if we are going to incentivize health providers to use electronic health records, we need to make sure that providers will have assistance in choosing, implementing and using electronic health records.

Utah has been a leader in physician EHR implementation as a result of its participation in the Centers for Medicare and Medicaid Services-- CMS--Medicare Care Management Performance--MCMP demonstration project which was created through the Medicare Modernization Act. The demonstration provided incentive funding to Utah physicians for adopting EHRs and offered these doctors support and assistance with their EHRs systems. In the bill we are considering, I included language to ensure that health providers in Utah and across the country will continue to receive that assistance. Without such assistance, many practices will move forward with a commitment to adopt EHRs, but will not choose the right product for their needs or could have difficulty using the system.

Another concern that has been brought to my attention by Utah health care providers is that the maintenance of effort provision in this legislation only applies to eligible State and local governments and not to State and local health care providers. This is a real concern in Utah. My State, like others across the Nation, is experiencing economic difficulties and, as a result, is contemplating reducing provider payments. I am deeply concerned about the impact this provision could have not only on providers but patient access to quality health care.

Finally, I would like to briefly address the enforcement provisions contained in section 13410 of this legislation relating to the State attorneys general. When adopting rules to implement the health information technology provisions in this act, I would urge Secretary of HHS to include rules to require the States to notify the HHS Secretary as to any outside groups that will have contracts to assist with the enforcement of these provisions. I appreciate the opportunity to work with my colleagues on this important issue.

I look forward to working together to transform our sick-care system into a true health care system. However, the other side at this time seems focused on transforming it into a socialized welfare system through this Government-spending bill. I continue to hold deep hope in my heart that we will soon move beyond these beltway games and work together to fix Main Street and make sure that our Nation continues to be the shining city on the hill.

Let me just make one other comment. When our bill went over to the House--the House bill was passed too--I happened to notice that the welfare reform program that we worked so hard on in the mid-1990s, that President Clinton vetoed twice until he finally decided that it was worthwhile and signed it, has been greatly modified in this bill. I may be wrong in this because I have not read that section, but I have had indications that that section basically has changed our welfare reform law. It basically put, within a short time thereafter, two-thirds of the people who had been on welfare to work, many of those people second and third generations on welfare. They found out that they could work and get the self-esteem that comes from being able to work, while still having a welfare system to care for those who can't care for themselves but would if they could.

My understanding is they have changed the rules now where people can stay on welfare their whole lifetime. I hope that has been changed. I have not looked at this final version, but I hope that has been changed. If not, let me make a prediction. For most all of my time in the Senate, the percentage of GDP that our Federal Government has required is somewhere between 18 and 20 percent. If this bill goes through and there is another $2 or $3 trillion in spending, without being done right, we are talking about Europeanizing America. We are talking about the percentage of GDP going up as high as 39 percent-- according to the economists I talked to. That would be disastrous.

Some are so crude that they suggest that is the plan of our more liberal friends on the other side because the more they get people dependent on the Federal Government, the more they think the Democratic Party is the only one that is going to take care of them.

We prefer a little different approach to it. We prefer to help those who can't take care of themselves but would if they could, to help them in every way we possibly can. We have difficulty--at least I do-- helping those who can help themselves but will not.

I hope that provision is no longer in this bill, but I strongly suspect it is. If that is so, we will have done the American economy tremendous harm.

I am concerned about this. I can't vote for this bill, but I would have liked to have voted for a really good bill that really provided appropriate tax relief and made it possible to expand jobs in such a way as to bring this economy back to the greatest economy in the world, bar none, without question, and without question of its future greatness.

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

Mr. President, today I rise in support of the confirmation of William J. Lynn to be the next Deputy Secretary of Defense.

I recently had the opportunity to meet with Mr. Lynn and discuss many of the important defense challenges that face our Nation. I came away from that meeting duly impressed by his dedication to seek new and innovative solutions to many of these issues.

Throughout his career, he has demonstrated a singular devotion to our national defense. In the early 1980s he was the executive director of the Defense Organization Project at the Center for Strategic and International Studies. This organization was a major catalyst for the Goldwater-Nichols Act of 1986 which transformed and modernized the Department of Defense. Those reforms are still the foundation from which the Department operates today.

As a senior fellow at the National Defense University, Mr. Lynn continued his work collecting ideas and crafting solutions to solve a myriad of national defense issues. Then, prior to entering the Department of Defense, he worked for 6 years as the military legislative assistant to my good friend and colleague, Senator Kennedy, a senior member of the Senate Armed Services Committee.

In 1993, Mr. Lynn joined the Defense Department and served 4 years as the director of program analysis and evaluation in the Office of the Secretary of Defense. There he oversaw the Department's ever-evolving strategic planning progress. He was then appointed as the Under Secretary of Defense Comptroller where he served 4 years providing candid advice to the Secretary of Defense on all budgetary and fiscal matters.

His most recent endeavor was as senior vice president at Raytheon Company where he focused his energy and expertise on strategic planning. In this role, he ensured that a major American corporation developed and produced technologies that met the conflicts of today and the dangers of tomorrow.

During these challenging times, it is essential we have leaders in our Defense Department with strength of purpose and a vision for innovation. William Lynn is such a leader. I am proud to pledge my support and look forward to working with him to create smart and effective solutions that support the brave men and women who defend our Nation.

Mr. President, I rise today to introduce with my friend from Minnesota, Senator Amy Klobuchar, the Secondary Metal Theft Prevention Act of 2009.

Once again, I am partnering with Senator Klobuchar to combat metal theft in our country. Last Congress we introduced the Copper Theft Prevention Act of 2008, S. 3666, which focused solely on copper theft. Since then, after a series of meetings with industry stakeholders, we concluded that the bill would be more effective if it were expanded to address secondary metal thefts, including those involving copper.

There is no doubt that we are living in difficult economic times. As we witness the unfortunate job losses spreading across the country, I am mindful of those who are struggling to make ends meet. Unfortunately some, motivated by quick profits and a variety of vulnerable targets, are engaging in the fast-growing crime of metal theft.

On the surface, stealing precious metal, like copper, appears to be a relatively small theft. However, metal thieves compromise U.S. critical infrastructure by targeting electrical sub-stations, cellular towers, telephone land lines, railroads, water wells, construction sites, and vacant homes--all for fast cash.

Some argue that there is no need for this legislation because metal is being traded at low prices. I disagree. As we know, the market shifts and prices will eventually increase as demand surges. Moreover, law enforcement officials confirm that thieves are only stealing more metal to offset current metal prices.

On September 15, 2008, the Federal Bureau of Investigation released an unclassified intelligence assessment entitled, Copper Thefts Threaten U.S. Critical Infrastructure.

This assessment states that ``thieves are typically individuals or organized groups who operate independently or in loose association with each other and commit thefts in conjunction with fencing activities and the sale of contraband. Organized groups of drug addicts, gang members, and metal thieves are conducting large scale thefts from electric utilities, warehouses, foreclosed and vacant properties, and oil well sites for tens of thousands of dollars in illicit proceeds per month.''

I am mindful of the hardworking scrap metal dealers in my home state. Recycling secondary metal not only generates revenue but is environmentally friendly and saves energy, it takes a lot less energy to melt down secondary metal and recycle it than it does to produce new metal.

Take for example the City Creek project in downtown Salt Lake City, Utah. It is my understanding that when the construction contractors tore down the downtown malls to make way for the 20-acre retail-office- residential complex, more than half of what came down was reused either in the City Creek development or somewhere else. Steel frames were sold as scrap metal, which was recycled and used for other purposes.

Utah metal recyclers deal with hundreds of people and thousands of pounds of metal on a regular basis. I imagine in some cases it is difficult to tell if the scrap metal is stolen, especially if a customer has, what appears to be, a legitimate story. I know that many of Utah's scrap metal dealers are not turning a blind eye to this problem. In fact, several metal recycling companies have partnered with local law enforcement and use a theft alert system to warn and watch for reported stolen items. I commend them for their efforts and hope that police, prosecutors, and members of the metal recycling industry continue to communicate and work together to combat metal theft along the Wasatch Front.

Yet on the Federal level, we need a baseline from which all states must operate. This is important because many states in the Union do not have metal theft laws and lure thieves across State lines. It should be noted that the proposed bill does not preempt states from enacting their own laws.

I believe the proposed legislation will help tighten-up how secondary metal transactions are performed across the country and, in return, send a clear message that metal theft will be met with serious consequences. The bill calls for enforcement by the Federal Trade Commission and gives state attorneys general the ability to bring a civil action to enforce the provisions of the legislation.

This bill also contains a ``Do Not Buy'' provision wherein specific items listed cannot be purchased by scrap metal dealers unless sellers establish, by written documentation, that they are authorized to sell the secondary metal in question.

Additionally, the bill requires scrap metal dealers to keep records of secondary metal purchases, including the name and address of the seller, the date of the transaction, the quantity and description of the secondary metal being purchased, an identifying number from a driver's license or other government-issued identification and, where possible, the make, model and tag number of the vehicle used to deliver the metal to the dealer.

Secondary metal dealers must maintain these records for a minimum of two years from the date of the transaction and make them available to law enforcement agencies for use in tracking down and prosecuting secondary metal theft crimes.

There is real concern about how easy it is to access cash in scrap metal transactions. For this reason, the bill requires that checks will be the method of payment for transactions over $75. While that may sound low for some, it is important to recognize that it takes a lot of secondary metal to obtain even $75 in return.

To discourage multiple cash transactions from one seller, the bill limits metal dealers from paying cash to the same seller within a 48- hour period. The intent of this provision is not to be a hardship on the honest seller. The purpose is to dissuade some sellers from going around the bill's check payment requirement by making multiple cash transactions. Again, we must remove the incentives for thieves to access fast cash.

I am aware that some scrap metal dealers do not want to issue checks for fear of check fraud or additional transactional costs. Senator Klobuchar and I have given careful consideration to these concerns and have consulted law enforcement officials to determine how best to proceed. We believe that checks are a valuable benefit to law enforcement because they provide trace evidence by creating a paper trail, a signature, and possibly even a fingerprint.

Let me conclude my remarks by saying that considering our country's serious economic situation, I believe we need to ensure that our critical infrastructure is not viewed as a treasure trove for desperate metal thieves.

I am committed to moving this bill forward and hope that my colleagues will join me in perfecting this bill as it moves through the legislative process.

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

Mr. President, I rise today to introduce with my friend from Minnesota, Senator Amy Klobuchar, the Secondary Metal Theft Prevention Act of 2009.

Once again, I am partnering with Senator Klobuchar to combat metal theft in our country. Last Congress we introduced the Copper Theft Prevention Act of 2008, S. 3666, which focused solely on copper theft. Since then, after a series of meetings with industry stakeholders, we concluded that the bill would be more effective if it were expanded to address secondary metal thefts, including those involving copper.

There is no doubt that we are living in difficult economic times. As we witness the unfortunate job losses spreading across the country, I am mindful of those who are struggling to make ends meet. Unfortunately some, motivated by quick profits and a variety of vulnerable targets, are engaging in the fast-growing crime of metal theft.

On the surface, stealing precious metal, like copper, appears to be a relatively small theft. However, metal thieves compromise U.S. critical infrastructure by targeting electrical sub-stations, cellular towers, telephone land lines, railroads, water wells, construction sites, and vacant homes--all for fast cash.

Some argue that there is no need for this legislation because metal is being traded at low prices. I disagree. As we know, the market shifts and prices will eventually increase as demand surges. Moreover, law enforcement officials confirm that thieves are only stealing more metal to offset current metal prices.

On September 15, 2008, the Federal Bureau of Investigation released an unclassified intelligence assessment entitled, Copper Thefts Threaten U.S. Critical Infrastructure.

This assessment states that ``thieves are typically individuals or organized groups who operate independently or in loose association with each other and commit thefts in conjunction with fencing activities and the sale of contraband. Organized groups of drug addicts, gang members, and metal thieves are conducting large scale thefts from electric utilities, warehouses, foreclosed and vacant properties, and oil well sites for tens of thousands of dollars in illicit proceeds per month.''

I am mindful of the hardworking scrap metal dealers in my home state. Recycling secondary metal not only generates revenue but is environmentally friendly and saves energy, it takes a lot less energy to melt down secondary metal and recycle it than it does to produce new metal.

Take for example the City Creek project in downtown Salt Lake City, Utah. It is my understanding that when the construction contractors tore down the downtown malls to make way for the 20-acre retail-office- residential complex, more than half of what came down was reused either in the City Creek development or somewhere else. Steel frames were sold as scrap metal, which was recycled and used for other purposes.

Utah metal recyclers deal with hundreds of people and thousands of pounds of metal on a regular basis. I imagine in some cases it is difficult to tell if the scrap metal is stolen, especially if a customer has, what appears to be, a legitimate story. I know that many of Utah's scrap metal dealers are not turning a blind eye to this problem. In fact, several metal recycling companies have partnered with local law enforcement and use a theft alert system to warn and watch for reported stolen items. I commend them for their efforts and hope that police, prosecutors, and members of the metal recycling industry continue to communicate and work together to combat metal theft along the Wasatch Front.

Yet on the Federal level, we need a baseline from which all states must operate. This is important because many states in the Union do not have metal theft laws and lure thieves across State lines. It should be noted that the proposed bill does not preempt states from enacting their own laws.

I believe the proposed legislation will help tighten-up how secondary metal transactions are performed across the country and, in return, send a clear message that metal theft will be met with serious consequences. The bill calls for enforcement by the Federal Trade Commission and gives state attorneys general the ability to bring a civil action to enforce the provisions of the legislation.

This bill also contains a ``Do Not Buy'' provision wherein specific items listed cannot be purchased by scrap metal dealers unless sellers establish, by written documentation, that they are authorized to sell the secondary metal in question.

Additionally, the bill requires scrap metal dealers to keep records of secondary metal purchases, including the name and address of the seller, the date of the transaction, the quantity and description of the secondary metal being purchased, an identifying number from a driver's license or other government-issued identification and, where possible, the make, model and tag number of the vehicle used to deliver the metal to the dealer.

Secondary metal dealers must maintain these records for a minimum of two years from the date of the transaction and make them available to law enforcement agencies for use in tracking down and prosecuting secondary metal theft crimes.

There is real concern about how easy it is to access cash in scrap metal transactions. For this reason, the bill requires that checks will be the method of payment for transactions over $75. While that may sound low for some, it is important to recognize that it takes a lot of secondary metal to obtain even $75 in return.

To discourage multiple cash transactions from one seller, the bill limits metal dealers from paying cash to the same seller within a 48- hour period. The intent of this provision is not to be a hardship on the honest seller. The purpose is to dissuade some sellers from going around the bill's check payment requirement by making multiple cash transactions. Again, we must remove the incentives for thieves to access fast cash.

I am aware that some scrap metal dealers do not want to issue checks for fear of check fraud or additional transactional costs. Senator Klobuchar and I have given careful consideration to these concerns and have consulted law enforcement officials to determine how best to proceed. We believe that checks are a valuable benefit to law enforcement because they provide trace evidence by creating a paper trail, a signature, and possibly even a fingerprint.

Let me conclude my remarks by saying that considering our country's serious economic situation, I believe we need to ensure that our critical infrastructure is not viewed as a treasure trove for desperate metal thieves.

I am committed to moving this bill forward and hope that my colleagues will join me in perfecting this bill as it moves through the legislative process.

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

Mr. President, I would like to ask a question through the Chair to my good friend from Massachusetts, Senator Kennedy. Is my friend aware that the legislation before us today, the Economic Recovery and Reinvestment Act of 2009, contains a provision which would establish the Office of the National Coordinator for Health Information Technology within the Department of Health and Human Services and instruct the National Coordinator to support and facilitate the use of electronic health records for Americans?

It will come as no surprise to anyone to know that many Americans will be skeptical of the creation of a national database and central repository of health records. Indeed, one group which is particularly concerned with this provision would be those who do not use medical treatment or interact with the health deliver services in this country. Therefore, I would again ask my friend, through the chair, does the language in these subsections attempting to establish ``the utilization of an electronic health record for each person in the United States by 2014'' require those who do not use medical treatment to go to a doctor for a physical examination in order to have an electronic health record created?

I agree that the primary focus of comparative effectiveness research should be clinical effectiveness not cost. We can all agree that the ``one size fits all'' approach is the wrong approach for the American health care system. Based on our own personal experiences we all know that what works best for one person, does not always work the same for another. I look forward to working in a bipartisan and inclusive manner to come up with prudent legislation that will not only help us realize the true potential of comparative effectiveness but also preserve patient choice and innovation--the two hallmarks of our health care system.

Madam President, at the center of our Nation's current financial crisis are our Nation's automakers and our homeowners. These are our two areas that we cannot afford to ignore, if we are to have any hope of an economic recovery.

I would like to focus on our automakers. Some economists have remarked that as our automakers go, so goes our Nation. Other economists have complained that the auto industry has been too slow to modernize and too slow to prepare for the future.

We all know that 97 percent of our vehicles run on gasoline and diesel. But what you don't hear often enough is that American automakers are actually poised to lead the world into the next era of vehicle technology. They are prepared to produce flexible, affordable, attractive, and long-range vehicles that run on an alternative fuel that is much cheaper, much cleaner, more abundant, and completely domestic. That alternative fuel is electricity from our electric grid. Other than natural gas, there is no other alternative fuel that comes close to having so many of these qualities.

Last Congress, Senator Cantwell and I came together to introduce the Freedom Act, and with the assistance of Chairman Baucus and Senator Grassley, the committee's Republican ranking member, we were able to get major provisions of that bill passed into law, including tax credits for consumers who purchase the plug-in electric and plug-in hybrid vehicles.

I was the author of the CLEAR ACT, which promoted hybrid and alternative vehicles and which passed in the Energy Policy Act of 2005. It was pretty clear at the time that the Japanese automakers had the jump on this technology. However, I was pleased to see that it didn't take too long for our American automakers to respond and to produce very good and very efficient hybrid electric vehicles.

The next step of using electrons off the grid is a more revolutionary shift, because it will have a more dramatic impact on our Nation's dependency on oil.

Many of my colleagues may not be aware that American automakers and American technology companies are poised to lead the world in plug-in electric and plug-in hybrid vehicles. In the next 2 years, General Motors will be offering two new plug-in vehicles for commercial sale. These will be vehicles developed and manufactured right here in America. American lithium ion battery makers lead the world in technological advances, and are also ready to set up major manufacturing operations here on our shores. American companies also lead the world in electric motor technologies, ultra-capacitors, and other important electronic controller technologies.

Senator Cantwell and I are offering an amendment that would ensure that this manufacturing stays here at home. In most cases, these American companies are prepared to begin manufacturing immediately. So this amendment is timely and goes to the heart and soul of the stimulus bill we are now considering.

I personally do not believe our auto industry will survive on old ideas and past technologies. What could be more important in this stimulus bill than to assist the auto industry as it attempts to lead the world in a new era of vehicle technologies. I am very grateful to Senator Cantwell, and Chairman Baucus and Senator Grassley for making this proposal a priority.

Mr. President, I appreciate the remarks of the distinguished Senator from Michigan.

I rise in support of the substitute offered by the distinguished Senator from Arizona. As usual, John McCain does not mince any words. He says what he believes, and in this particular case, what he is trying to do is make this bill better and also to make it bipartisan so it would have an overwhelming vote, including mine. But I cannot help but express concern about the misguided direction we are headed toward in stimulating our economy if we go with the bill the majority has come up with, even as amended.

Our new President recently told the Washington Post:

The tone I set is that we bring as much intellectual

firepower to a problem, that people act respectfully towards

each other, that disagreements are fully aired, and that we

make decisions based on facts and evidence as opposed to

ideology, that people will adapt to that culture and we'll be

able to move together effectively as a team.

Now, I make decisions based on ``facts and evidence as opposed to ideology.'' That is what our President said.

To me, that means we must do what is necessary and what will be effective, and I could not agree more with President Obama's statement. Unfortunately, in this bill, my friends on the other side of the aisle have not followed the President's leadership and at a time when such leadership is critical.

There is no doubt we are in a serious recession. There is widespread agreement that quick action is necessary to stop our economy's downward spiral. The facts are conclusive and Democrats and Republicans all agree economic conditions are severe. Both commonly accepted definitions of ``recession'' have clearly been met, and we

have seen a constant decline for all economic indicators.

Our current economic condition: GDP has declined at 3.8 percent, unemployment at 7.2 percent. Manufacturing is at a 28-year low. We had the worst January in over a quarter of a century. These are very important indicators. I could go on, but we are here today to look toward the future, to look toward recovery and reinvestment.

Moreover, I am not here to cast blame as to how we got here. Both sides are guilty of making poor decisions on shaping our economy. But today is critical. We need, as the President has stated, to put aside our ideological differences, focus on our economic condition, and make decisions based on what the facts and the evidence indicate will be effective.

We cannot afford to waste more American taxpayer dollars. We cannot afford to advance political dogma at the expense of doing what is right. We cannot afford to make a trillion-dollar mistake.

If we are going to spend billions to stimulate the economy, we had better get it right. The central question is whether this enormous spending-and-tax bill would be effective, or will be effective, in turning around the economy, preventing further layoffs, and creating new jobs. If it will do what is needed, it is worth the money, and we must pass it immediately.

While both sides of the aisle agree about what we want to achieve, we disagree about the means and how to achieve them. Despite popular Democratic belief, Republicans are not trying to block the stimulus package. We are trying to improve it, and the distinguished Senator from Arizona has some great ideas and has improved it considerably. While Senate Republicans have tried to offer our ideas to the American Recovery and Reinvestment Act, we have largely been excluded from helping formulate this bill.

The February 2 Los Angeles Times editorial, titled ``The Nation Needs Jobs, Not a Political Agenda,'' correctly points out this stimulus package--the largest stimulus since World War II--could and should have been crafted to garner extensive Republican support.

Instead, the stimulus is a hodgepodge of liberal-targeted spending projects with a few decent ideas thrown in to try to appease Republicans. The majority of the bill is aimed at promoting mostly public-sector jobs for short-term projects, such as building roads and infrastructure.

A large fraction of the proposed stimulus package is devoted to infrastructure projects that would spend out very slowly, not with the speed needed to put the economy on the path to recovery in 2009 and 2010. While some of these public jobs are necessary, we also must provide incentives for private sector jobs. Furthermore, the stimulus needs to take effect immediately and not continue to provide a stimulus once the economy has turned around.

While President Obama has said he believes Government spending provides the most ``bang for the buck'' and that there is ``near unanimity'' among economists that Government spending will help restore jobs in the short term, I must respectfully disagree. I believe, as do many economists, that our problems cut much deeper than what temporary Government spending will be able to cure.

Harvard economics professor Martin Feldstein, president emeritus of the National Bureau of Economic Research, wrote in a recent Washington Post article:

The fiscal package now before Congress needs to be

thoroughly revised. In its current form, it does too little

to raise national spending and employment.

Gregory Mankiw, another Harvard economics professor and the former chairman of the President's Council of Economic Advisors, notes in a New York Times op-ed that each dollar of Government spending increases the gross domestic product by only $1.40, while a dollar of tax cuts-- or tax relief, I would prefer to say--raises the gross domestic product by about $3.

This is based on a study conducted by Christina and David Romer, then economists at the University of California, Berkeley. Christina Romer will now serve as the chair of President Obama's Council of Economic Advisers. President Obama, there is not ``near unanimity'' among economists that Government spending delivers the most ``bang for the buck''--indeed, not even among your own top economic advisers.

Democrats have stressed they believe we need solutions that are temporary, targeted, and timely. Beyond spending for expanding Government projects, there is serious wasteful spending in this bill. The current bill provides up to $500 for individuals and up to $1,000 for families in the so-called Make Work Pay tax credit, which would encourage work at the margin only for people who produce and earn less than $8,100 per year.

Studies show that in the past, these rebate checks do not stimulate the economy. For instance, studies of the 1975 rebate--and earlier tax changes--suggested that only 12 percent to 24 percent of the rebate was consumed in the quarter it was received. Moreover, it is estimated that only 15 percent of last year's rebate checks was put back into the economy. Based on these estimates, of the $142 billion that would be allocated through the ``Making Work Pay'' tax credit--through that tax credit--the average of only $24 billion would find its way back into our economy. That is after an expenditure of $142 billion.

Now, this is what it says: The Democrats' Stimulus Plan. Make Work Pay tax credit. Make Work Pay--the cost is $145 billion. Only $24 billion will be put back into the economy. These are important estimates.

Well, is this the most effective way to spend taxpayer money? The Make Work Pay credit is a refundable credit. Anyone who works would be eligible to receive up to $500, even if that person never paid income taxes. There are other refundable credits in this bill as well, including a provision increasing the refundable portion of the child tax credit.

But the bill also creates a new category of tax credit bonds called ``Build America Bonds,'' in which a State or a local government could elect to receive a direct payment from the Federal Government equal to the subsidy that would otherwise have been delivered through the tax credit. Whom are we kidding? This is nothing more than an innovative way of delivering more spending through the Tax Code. The majority wants to claim these are tax cuts, but these are not tax cuts. This is spending. I ask my colleagues: What is wrong with using the appropriations process for spending? Some of these projects may fit the appropriations process well, but they do not fit in a stimulus bill such as this and especially one where the American taxpayers are called upon to spend so much.

Beyond these so-called ``tax cuts,'' we see even more spending for State and local governments. Until recently, my friends on the other side of the aisle have promoted their ideology to the extent that House Speaker Pelosi suggested that contraception will stimulate the economy because it is a cost-saving measure for the State and Federal governments. Even though this measure has been taken out, the bill includes plenty of other Government-expanding and ideology-promoting projects. State aid will only fund temporary projects that would need to be funded later down the road. Conversely, spending in the private sector would create permanent jobs that would give people more to spend and would lead to even more permanent job creation.

Look, it is not just Republicans sounding the alarm over this bill. Even the very liberal San Francisco Chronicle has characterized the bill as a wasteful grab bag of spending. For example, this bill could make available billions of taxpayer dollars to leftwing groups, such as the Association of Community Organizations for Reform Now, commonly known as ACORN. The plan further establishes 32 Government programs at a cost of well over $136 billion.

There is a difference between permanent tax cuts and short-term stimulative spending. If we base this bill on measures we know will work, it should include a proper balance of both permanent tax cuts and short-term spending. Instead, this bill is tilted toward government spending either through appropriations or tax expenditures. Less than 3 percent of this bill contains business tax relief. How do we expect to create jobs in the private sector when you spend that little on the people who can create the jobs?

I wish to turn my attention to the health care provisions contained in this package. As I have said before, health care reform is not a Republican or Democratic issue; it is an American issue. When we are dealing with 17 percent of our economy--and that is what the health care economy is--it is imperative that we address solutions in an open and honest, bipartisan process. Although the congressional Democrats and the administration have given a great deal of lip service to bringing change and bipartisanship to Washington, let us all remember that actions speak louder than words.

I am mostly disappointed the Democrats have decided to use the stimulus legislation to address health care reform in a partisan and piecemeal fashion. Health information technology is a perfect example. It is an area of consensus that should have been part of the comprehensive and bipartisan health care reform dialog.

Last Congress, Senator Mike Enzi and I worked very closely with Senators Ted Kennedy and Hillary Clinton on the Wired For Health Care Technology Act which resulted in a bipartisan bill that was unanimously approved and reported by the Senate Health, Education, Labor and Pensions, or HELP, Committee. While the stimulus package before the Senate contains provisions on health information technology--that is health IT--it does not resemble that bipartisan bill we introduced and passed unanimously out of the committee last Congress. The most important difference is that these provisions do not represent a bipartisan agreement because Members on both sides of the aisle were not involved in the discussions.

Secondly, the stimulus bill undermines the work of former Health and Human Services Secretary Mike Leavitt and the Bush administration by federalizing the National eHealth Collaborative. While I believe the Federal Government should play a role in this area, it should not take over such an initiative. The intent of our legislation, and the intent of Secretary Leavitt, was to encourage a partnership between the private sector and the Federal Government to improve the quality and efficiency of health care. The stimulus legislation dissolves this public-private partnership.

Finally, the stimulus bill provides $1.1 billion for clinical comparative effectiveness, including a $400 million slush fund to be used by the Secretary at his discretion. Once again, this is a topic of bipartisan interest and concern that should have been discussed in the context of comprehensive reform.

We have not even discussed the overall cost of this bill. When interest is included, the almost $900 billion Senate version reaches close to $1.3 trillion. That is enough to give every man, woman, and child in America $4,000, or every person in my home State of Utah $480,000. Indeed, $1.2 trillion is more than the cost of the New Deal and the Iraq war combined in today's dollars. The interest alone would be costlier than the Louisiana Purchase or going to the Moon adjusted for inflation--in fact, four times the cost adjusted for inflation and time--than the Louisiana Purchase.

The bill is estimated to cost $1.3 trillion with interest. The congressional budget authority has estimated that the stimulus bill will produce between 600,000 and 1.9 million new jobs by 2011. That means it would cost anywhere from $700,000 to $2.1 million to create one job. That is absurd.

To make this bill economically stimulative, we must make decisions that will be effective. Our economy began this downturn when our housing market collapsed. No stimulus will work unless we address the root of the problem. Some of my Republican colleagues are proposing to add the Fix Housing First Act which would refinance and lower fixed rate, 30-year mortgages for primary residences and provide a $15,000 tax credit for all homebuyers. I support this idea because it would encourage people to buy houses and would help homebuilders, and it would put a lot of people to work. In addition, we have offered a proposal to permanently lower the corporate income tax rate which again would give the corporations in this country the ability to hire a lot more people, expand their businesses, and do what should be done. We need to enact tax relief that will help save and create jobs now.

I believe one way to truly stimulate the economy is by making the research tax credit permanent. If we lifted the quota on H2B people-- these are generally highly educated people, educated in our country, who are forced out of our country to go home and compete with us, where otherwise they would stay here and help us be more competitive than we are. For too long, companies have been waiting on a short-term basis to see whether this vital tax credit will be extended for yet another year or two. When 80 percent of the research credit is based on salaries and wages, I doubt that anyone in this Chamber could honestly say that making the research tax credit permanent would not provide a great deal of bang for the buck.

We should also look at middle-class tax relief by lowering the 15- percent bracket to 10 percent and the 10-percent bracket to 5 percent, increasing the capital loss deduction and lowering the capital gains rate to encourage investment which would lead to job creation. I think I have the right to say these things because I was one of the original supply siders in the Reagan administration. Not only did we have the arguments that if we reduced taxes, we will have less revenues, not only did that turn around, but we had many more revenues that were planned or contemplated because we did reduce those taxes.

The fact that 11 Democrats and every Republican voted against this bill in the House is evidence that bipartisanship did not prevail. The reason it did not prevail is that there was too much spending in the legislation and not enough incentives to spur job growth and economic development. For this stimulus package to be effective, it should incorporate ideas from both sides of the aisle. We should be focusing on incentives that are permanent and broad, not temporary and targeted. We owe this not only to taxpayers today, but also to future generations of taxpayers who will be saddled with this trillion dollar spending bill--$1.3 trillion. In short, we owe it to every American to craft a bipartisan stimulus package that will rouse the economy instead of coming up with a partisan bill that produces little and provokes American anger.

Again, as I said at the beginning of my remarks, I wish to thank the distinguished Senator from Arizona for the work he has done in trying to come up with a reasonable compromise on this approach that will create many more jobs at much less cost, and for his willingness to stand on this floor and the guts he has to be able to take on all of us as colleagues in the Senate to try and do what is right.

Mr. President, I yield the floor.

Mr. President, I rise today to express my support for the Performance Rights Act, S. 379, introduced today by Senate Judiciary Committee chairman, Patrick Leahy, and myself. It is time to amend copyright law to establish performance rights on sound recordings. I believe that artists should be compensated for their work. This is an issue of fairness and equity.

I agree with the position of the Department of Commerce Working Group on Intellectual Property Rights: the lack of a performance right in sound recordings is ``an historical anomaly that does not have a strong policy justification--and certainly not a legal one.''

This legislation would ensure that musical performers and songwriters receive fair compensation from all companies across the broadcast spectrum, not just from Web casters, satellite radio providers, and cable companies. The proposed legislation attempts to strike a harmonious balance between fair compensation for artists and a vibrant radio industry in the U.S.

By amending sections 106 and 114 of the Copyright Act, the Performance Rights Act would apply the performance right in a sound recording to all audio transmissions thereby removing the exemption on paying performance royalties currently in place for over-the-air broadcasters.

The legislation also provides for a blanket license of $5,000 for small commercial broadcasters whose gross revenues do not exceed $1.25 million a year. In addition, noncommercial broadcasters as defined by section 118 of the Copyright Act, such as public, educational and religious stations, would have a blanket license of $1,000 per year. No payment would be due until the Copyright Royalty Board determines the rates for large commercial broadcasters. The proposed language provides that sound recordings used only incidentally by a broadcaster and sound recordings used in the transmission of a religious service are exempt.

Finally, the legislation strengthens the provision in section 114 that preserves the rights of songwriters and clarifies that nothing in the Performance Rights Act shall adversely affect the public performance rights of songwriters or copyright owners of musical works.

Let me repeat, this provision is to ensure that songwriters are not adversely affected by enactment of this bill. I understand the concerns of the songwriting community and the difficultly some have in recouping royalties on infringed works. We must ensure that our songwriters are not placed in situations where their property rights are ignored by infringers. Chairman Leahy agrees that additional work to address the issue of willful infringement is necessary before enactment, and I look forward to working with him.

I want the broadcasting community to know that I am committed to working with them throughout the legislative process. I continue to have an open-door policy and welcome a productive dialogue on this issue. There is no question that radio play promotes artists and their sound recordings. There is also no question that radio stations profit directly from playing the artists' recordings. Indeed, we must strike a fair balance, one that fosters a vibrant broadcast radio community and compensates artists for their work.