Floor Statements

Mr. President, I ask unanimous consent that Josh Davis, a legislative fellow on my staff, be granted privileges of the floor during the remainder of today's session.

I ask unanimous consent to call up amendment No. 4895 by Wicker and Kyl.

I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, I rise this evening to offer another amendment to the resolution of ratification. This amendment rises out of concerns over the Bilateral Consultative Commission known as the BCC. The BCC has been referred to numerous times in debate today. Article XII of the treaty establishes the BCC as a forum for the parties to resolve issues concerning implementation of the treaty. Part six of the protocol says the BCC has the authority to resolve questions relating to compliance, agree to additional measures to improve the viability and effectiveness of the treaty, and discuss other issues raised by either party. This clearly is very broad authority given to the BCC. In effect, the subject matter jurisdiction of the BCC seems limitless, based on the clear language of article XII.

Former National Security Adviser under President George W. Bush, Stephen Hadley, appeared before the Foreign Relations Committee and expressed concerns over this treaty. He stated, with regard to the Bilateral Consultative Commission:

The Bilateral Consultative Commission seems to have been

given authority to adopt, without Senate review, measures to

improve the viability and effectiveness of the treaty which

could include restrictions on missile defense.

It is that element of Senate review that this amendment would inject back into the process.

Others have voiced concern that the mandate of the BCC is overly broad. This should trouble Senators. It is why I offer this amendment to place proper limits on the power of the BCC.

I hold in my hand a fax sheet written by the Department of State Bureau of Verification, Compliance, and Implementation, dated August 11, 2010. I ask unanimous consent that it be printed in the Record.

The fax sheet mentions on more than one occasion that changes adopted by the BCC cannot affect substantive rights or obligations. It says under background: ``The New START treaty authorizes the parties to use the Bilateral Consultative Commission, BCC, to reach agreement on changes in the protocol to the treaty, including its annexes, that do not affect substantive rights or obligations.''

Further down under authority of the BCC, the State Department fax sheet says: ``In addition to making technical changes to the protocol, including its annexes that do not affect substantive rights or obligations, the BCC may,'' and then it lists the six bullets. First, resolve questions relating to compliance with the obligations assumed by the parties. Secondly, agree upon such

additional measures as may be necessary to improve the viability and effectiveness of the treaty. Next, discuss the unique features of missiles and their launchers other than ICBM and ICBM launchers or SLBM and SLBM launchers referred to in paragraph 3 of article V of the treaty that distinguish such missiles and their launchers from ICBM and ICBM launchers and SLBM and SLBM launchers. Next, discuss on an annual basis the exchange of telemetric information under the treaty. Fifth, resolve questions related to the applicability of provisions of the treaty to a new kind of strategic offensive arm. And finally, discuss other issues raised by either party. But the changes may not affect substantive rights or obligations of the parties.

``Rules governing the work of the BCC: The BCC is required to meet at least twice a year in Geneva unless the parties agree otherwise. The work of the BCC is confidential, except if the parties agree in the BCC to release details of the work,'' and ``BCC agreements reached or result of its work recorded in writing are not confidential . . . '' The BCC can agree to amendments in the treaty, but they must be submitted back to the Senate for advice and consent. It is a very powerful commission, no doubt. And it is reassuring to have this fax sheet saying that substantive changes cannot be made by the BCC.

It would be more reassuring if we put this in writing, and that is what the Wicker-Kyl amendment 4895 does. It is very simple and it uses the State Department language, stating that provisions adopted by the BCC that affect substantive rights--and these are the words used by the State Department in the fax sheet--are those that create new rights or obligations for the United States and must therefore be submitted to the Senate for its advice and consent.

The bottom line is this: If it is determined that a substantive change has been made by a decision of the BCC, then that change should be subject to the advice and consent of the Senate.

I urge a ``yes'' vote to this very simple but straightforward amendment.

Mr. President, if no one else seeks time on this amendment, I would be prepared to close.

It may be that my friend from Maryland is satisfied that there are no restrictions on missile defense in this aspect of the treaty. But it did not satisfy Stephen Hadley, the National Security Adviser to former President George W. Bush, who came before our committee with concerns.

It seems to me we have a very simple way to address those concerns. Let me reiterate to my colleagues the quote of Mr. Hadley:

The Bilateral Consultative Commission seems to have been

given authority to adopt without Senate review measures to

improve the viability and effectiveness of the Treaty which

could include restrictions on missile defense.

I would also agree with my colleague from Maryland that, indeed, the BCC has the authority to negotiate amendments to the treaty. That is acknowledged in the factsheet by the State Department.

The simple step beyond that I am trying to do with my amendment is to make it clear, using the terms supplied to us by the State Department that say: The BCC cannot make changes that affect the substantive rights or obligations of the United States. I am trying to make that part of the resolution of ratification, and that is all it does. It says if the BCC adopts provisions that affect substantive rights or obligations under the treaty that create new rights or obligations, that those changes must come back to the Senate. It is in addition to the requirement that amendments to the treaty come back to the Senate for ratification, and it is a protection of the rights of this body to continue to have a role in substantive modifications that might come out of the BCC.

I urge the adoption of this amendment.

Mr. President, I yield back.

Madam President, America had an election on November 2. Let me begin by reminding my colleagues that the American people spoke loudly and clearly in November and chose a far different team to serve in Washington. A vastly different leadership will soon take over in the House of Representatives, and a substantially different group of Senators was chosen by the American people in the election on November 2.

It seems the leadership of this lameduck Senate is determined, in the waning days of 2010, to pack quite a bit of legislation that normally is debated over a considerable amount of time into just a few days--not only the START treaty that we are on now but also don't ask, don't tell and supposedly the majority leader has not given up on the DREAM Act, which would provide amnesty to many illegal immigrants, and also there is the massive Omnibus appropriations bill with 2,000-plus pages.

So we are here at this time, realizing that if the Congress doesn't act, the government will run out of money on Saturday. I assume a short-term CR will be done to address that. But certainly, it would be much easier if we passed what the minority leader suggested today; that is, a reasonable short-term resolution, so the government can be funded and the lights can stay on until mid-February, and the newly elected Congress--the people's choice--can best decide these great issues that are facing our country.

I did find it interesting, a few moments ago, to hear the chairman of the Foreign Relations Committee scold the Senate about the number of filibusters we have supposedly had in this term of Congress. I believe the statement was made that we have had more filibusters in the last 2 years than we have had in decades or since World War II or words to that effect. Here is why that statement is only true in a very technical sense.

It has been the practice of the majority, during the 3 years I have been in the Senate--and from what I understand much longer before that--to

bring a bill to the floor of the Senate. He immediately fills the amendment tree; that is, he offers all the amendments that are allowed under the parliamentary rules of the Senate. That is called filling the tree. It is so nobody else has an opportunity to file an amendment. Then, the majority leader files cloture on that bill. Technically, yes, that is considered a filibuster. But I do not believe that is what most of the American people consider a filibuster and a delaying tactic, with excessive speechifying, when they hear the term ``filibuster.''

So let's be clear that there has been an unusual practice--at least in the last 3 or 4 years--of calling up a bill, filling the tree, filing for cloture, and then that goes down in history as a filibuster. With all we have to do and all our leadership has determined we must consider during these waning days of December 2010, we must divide our attention between an expensive 2,000-page omnibus bill and the consideration of a very complicated arms control agreement. It is that agreement I will discuss.

It is hard to imagine a more important, more serious issue than our nuclear weapons stockpile. In my view, such a debate deserves our undivided attention. But we will pivot in a few moments and move to the omnibus bill.

I wish to take what time I have at this point to begin sharing my concerns over this treaty and the effect it might have on national security.

Article II of the Constitution requires that the Senate ratify any treaty the President signs with a two-thirds vote. I take this responsibility very seriously, as I am sure all my colleagues do. This responsibility requires us to review any proposed treaty to ensure it is in the national interest of the United States of America.

As a member of the Senate Armed Services Committee and a member of the Foreign Relations Committee, I have participated in the review of this treaty to date. While I appreciate the efforts of my chairman and my ranking member, I am not convinced that the treaty, in its current form, is in the national interests of the United States of America.

I might add I am not alone in this view. To hear debate on the floor from time to time today, one would think all the learned authorities, all the collective wisdom of the United States of America, present and past, are in favor of the hasty ratification of this treaty. I simply point out that there is a wide variety of information and opinion out there that should be brought to the attention of Members of the Senate and the American people.

First of all, I point out to my colleagues an op-ed by former Secretary of State Condoleezza Rice, which appeared in the December 7, 2010, issue of the Wall Street Journal, entitled ``New Start: Ratify, with Caveats.'' Secretary Rice is generally in favor of the direction we are headed in the ratification of the START treaty. But she does say we need two caveats before ratification takes place. First, she states that smaller forces make the modernization of our nuclear infrastructure even more urgent. She commends the valiant efforts of Members of the Senate, including Senator Jon Kyl, to gain more robust modernization of our nuclear weapons. Secondly, the former Secretary of State says the Senate must make absolutely clear that in ratifying this treaty, the United States is not reestablishing the Cold War link between offensive forces and missile defenses. She says it is troubling that New START's preamble is unclear in this respect.

I wonder, if we do decide as a Senate to move toward consideration of this treaty, if we will be allowed to offer amendments to the preamble to address the concerns of our immediate past Secretary of State.

Further, I commend to my colleagues a Wall Street Journal op-ed, dated November 15, 2010, by R. James Woolsey. As my colleagues know, and many Americans know, Mr. Woolsey has a distinguished record as a delegate at large to the START and defense-based negotiations, back during the mid-1980s, as ambassador and chief negotiator for the Conventional Armed Forces of Europe Treaty from 1989 to 1991, and was President Clinton's Director of Central Intelligence from 1993 to 1995. So this bipartisan, experienced, former government official lists four concerns that he has with regard to the New START treaty. No. 1, he wonders about this administration's commitment to modernization. No. 2, he says it needs to be made clear that the United States, in ratifying New START, will not be limited at all in its missile defense, and he does not believe that has been taken care of. No. 3, Director Woolsey, President Clinton's Director of Central Intelligence, says this treaty represents a step backward in the verification process between the United States and Russia. Finally, Mr. Woolsey cites the need for a binding resolution on Russian submarine-launched cruise missiles. So I think there is information Members of the Senate need to hear about and need to consider.

Further, I will mention two opinion pieces. One is by Stephen Rademaker, an Assistant Secretary of State from 2002 to 2006. It is a Washington Post op-ed on Friday, August 20, 2010. Secretary Rademaker authored an opinion piece saying this is no way to approve the New START treaty. In his opinion piece, Mr. Rademaker said Senate critics of New START have largely been cut out of the process.

I know this from personal experience as a member of the Foreign Relations Committee. He goes on to say that all but two Republicans on the Foreign Relations Committee formally asked the administration to share with them the negotiating record of the treaty. They were told no, even though there is precedent for accommodating such requests.

A simple request--had it been accommodated--perhaps could have allayed some of the concerns we have.

In another op-ed, Mr. Rademaker, on December 10 of this year, said START will not stop nuclear proliferation. He points out that the claim that progress in United States-Russian arms control will help stop countries such as Iran from getting nuclear weapons isn't just an argument offered in support of New START, it is also one of the key premises underlying President Obama's embrace of global nuclear disarmament. There is just one problem. He said the notion that faster disarmament will lead to greater progress against nuclear proliferation has never added up.

Then, further, I will quote from a September 8, 2010, Wall Street Journal piece by John Bolton, a senior fellow at the American Enterprise Institute and former Under Secretary of State for Arms Control and International Security from 2001 to 2005. Secretary Bolton observes that the treaty's return to outmoded Cold War limits on weapons launchers, which will require the United States but not Russia to dismantle existing delivery systems, is a problem. He goes on to say this could cripple America's long-range conventional warhead delivery capabilities, while also severely constraining our nuclear flexibility. He said: ``We will pay for this mistake in future conflicts entirely unrelated to Russia.''

I say to my colleagues that the jury is still out on this issue. These are experienced public servants, experts, and current observers of the international scene and the nuclear negotiation process. They have given us words that give me pause. It makes me think there is no reason to rush into a hasty ratification of this treaty.

With regard to the process, hearings first started in May of this year. I was one of the Foreign Relations Committee members to request nine witnesses we believed were important and necessary to cover the extent of our concerns.

This request was denied. There is no reason such a request would have been denied. In 12 hearings, there were two witnesses who spoke in opposition to this treaty. Members of the minority party requested others, but it nowhere came anywhere near the normal precedent given to the minority to have at least one witness on each panel. I was concerned that no former National Lab Directors were invited to testify.

It is essential that an appropriate amount of time be spent on the Senate floor considering this treaty. Members who have serious concerns must be permitted the opportunity to offer amendments that would address the full range of problems.

I would simply point out, this is the last quote of this speech today. In endorsing the START treaty, the Washington Post, on November 19, said:

Positive steps had been made and the treaty ought to be

approved.

But it went on to say, the Editorial Board of the Washington Post went on to say:

But no calamity will befall the United States if the Senate

does not act this year.

I could not agree more with the Washington Post. It will not be a calamity if we are given adequate time to fully discuss, to fully examine, to fully debate all of the ramifications about an issue so profound as our nuclear weapons capability. The worst thing this body could do is shirk our constitutional responsibility by rushing this through in the final days of this lameduck session simply to check the box before the new team, the newly elected team comes to Washington and takes office in January.

I ask unanimous consent that the Wall Street Journal article I referenced be printed in the Record.

Mr. President, I rise today to discuss the debt default of the Republic of Argentina. Since it defaulted on its debt 9 years ago, the nation has ignored the judgments of American courts even though Argentina committed to honor such judgments when the debt was originally issued.

In 2001, Argentina defaulted on over $81 billion in sovereign debt, the largest default in modern history. American creditors were heavily exposed to the losses that resulted from that default and Argentina's debt restructuring. Despite paying off certain creditors in full, Argentina still owes U.S. bondholders over $3 billion while holding nearly $54 billion in reserves.

Bondholders have won over 100 U.S. Federal court judgments against Argentina. Additionally, Argentina has not paid claims brought by U.S. companies and other bondholders in international forums, which have collectively issued over $900 million in judgments against Argentina.

I have been approached on this matter by my constituents in Mississippi who are concerned about the outstanding court judgments. The issue of Argentina's default also reaches beyond my state's borders to every U.S. taxpayer because some of these losses are qualified tax deductions.

In light of my concerns, I am considering introducing legislation next year to address this issue. This is a step I hope I do not have to make, but I believe previous obligations should be honored.

Mr. President, I am glad to join this bipartisan group today. I see 10 of us on the floor at this time and we all have agreed to speak briefly about this, because we want to make the case that over the next several months we mean business and we intend to do what we can to actually make some tough choices.

I join my colleague from Georgia in commending the membership of the National Commission on Fiscal Responsibility and Reform, and particularly the leaders of this group, Erskine Bowles and Alan Simpson--great patriots, people with a great history of service in their own right. They have come forward with some recommendations in their preamble. They make it clear none of us like every element of the plan, but they put forward a plan that I think is a starting point for us, and we intend to use these next few months--frankly, we intend to use the runup to the vote we will have to take on the debt ceiling around April of 2011--to make real progress.

Let me subscribe to several of the statements made in the preamble of this fiscal responsibility commission. They say: ``We cannot play games or put off our choices any longer.''

I think the American people know that, and they expect leadership from their elected representatives in the House and Senate in that regard. The report and the preamble go on to say: ``The American people are counting on us to put politics aside,'' and that is what we are trying to do on the floor today. And that is what we are trying to do on the floor today with a bipartisan representation--pull together and not pull apart and agree on a plan to live within our means and to make America strong for the long haul.

It has been pointed out that ADM Mike Mullen, Chairman of the Joint Chiefs of Staff, says that the most significant threat to national security today is our national debt. I agree with Admiral Mullen, and I think Americans agree also.

``Kicking the can down the road is not going to suffice any longer,'' to quote our colleague from Oklahoma, Senator Tom Coburn.

The preamble goes on to say:

The contagion of debt that began in Greece and continues to

sweep through Europe shows us clearly that no economy will be

immune.

No economy, not even the U.S. economy.

If the U.S. does not put its house in order, the reckoning

will be sure and the devastation severe.

The title of the report of the Commission is ``The Moment of Truth.'' And I think we are here on the floor of the Senate today, on December 14, 2010, to say there is a bipartisan working group that believes we have arrived at a pivotal moment of truth and we intend to get down to the business of rectifying the problem of national spending and our national debt.

I yield to my friend from Montana.

I thank my colleague from Wyoming, Senator Barrasso, a practicing physician in his own right. I thank my friend for repeatedly coming to the floor and simply bringing the facts to the attention of our membership and to the American people.

This was an unpopular piece of legislation when we were considering it. We wasted most of a year when we should have been talking about job creation and the economy, talking about the overhaul of our entire health care system with the ObamaCare proposal. It was unpopular when it was enacted. It was unpopular when it was signed into law. We saw that in election after election, the two elections in New Jersey and Virginia. We saw it in spades in the Massachusetts election where it was the central issue. But this Congress persisted against the will of the American people.

Because of the facts as presented by Dr. Barrasso and also the facts that are coming to light as the people are finding out in their own lives with their own insurance policies, this law is even more unpopular and more unsatisfactory than it was at the very beginning, and it should be repealed lock, stock, and barrel. It should be defunded and it should be replaced by something market driven and something workable.

In an additional attempt to address this very wrongheaded piece of legislation, a few moments ago I introduced the Tenth Amendment Regulatory Reform Act. To remind my colleagues, the tenth amendment to the Constitution explicitly states:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

This amendment, this part of the Bill of Rights, expressly limits the powers of the Federal Government for important reasons.

When we look back to the early days of the United States, it is clear that the Founding Fathers believed in a limited Federal Government, having just defeated a monarchy with near absolute power. Our Founders sought a different way of governing, one based on controlled size and scope.

Our Founding Fathers repeatedly stated their opposition to a Federal

Government with expansive powers. In Federalist No. 45, James Madison wrote:

The powers delegated by the proposed Constitution to the

Federal Government are few and defined.

When have we heard that last?

He goes on to say:

Those which are to remain in State government are numerous

and indefinite.

This may come as a surprise to people who have viewed the Congress of the United States in the past few years. Madison wrote, ``few and defined.'' Dispute this fact, congressional limits on the Federal Government are rarely enforced today. I hope to change this through my legislation.

Federal agencies routinely usurp the rights of States by promulgating regulations that are contrary to the spirit and the letter of the 10th amendment to the Constitution. The Code of Federal Regulations now totals an expansive 163,333 pages. While some of the rules contained in it are necessary, many of them simply are not--adding burdens, headaches, and costs for millions of Americans and forcing unnecessary Federal spending at a time when the United States borrows 40 cents for each dollar we spend. These rules and regulations also take power from States and they take power from individual Americans. This bill would allow States to challenge unconstitutional mandates before these mandates take effect.

Much of the new health care law gives unelected bureaucrats the power to write rules and regulations required to implement ObamaCare. Overall, the new health care law creates 159 bureaucracies, according to a study by the Joint Economic Council. Countless Federal regulations will have to be written to implement the law.

A requirement for Americans to purchase government-approved health insurance--a central piece of ObamaCare--explicitly oversteps the 10th amendment. Under no other circumstances do we force individuals to pay for something they may not want or cannot afford, simply because they are Americans, which is what this law attempts to do.

Many rules and regulations will be required to implement this provision. According to one analysis, the Internal Revenue Service will need to hire 16,000 new IRS employees to enforce this individual mandate. Each of those bureaucrats will be governed by agency rules created in the coming months and years, and we read in the paper today that it may even be decades before all of these rules will be created.

Once these regulations are written, it will again require costly and time-consuming court proceedings to overturn them. Instead of forcing the American people to wait for a remedy, we should have agencies address these problems at the outset. This bill would go a long way toward doing that. It would provide special standing for designated State government officials to dispute regulations issued by administration agencies attempting to implement new Federal laws or Presidential Executive orders. Under the legislation, any rule proposed by a Federal agency would be subject to constitutional challenges if certain State officials determine the rule infringes on powers reserved to the States under the 10th amendment.

States are already challenging the massive Federal takeover in court because of the mandates on both States and individuals. I am proud to say that 43 of the 50 States have either joined lawsuits or taken other official action to stop its unconstitutional provisions. This bill would give State officials another tool at their disposal to challenge the unconstitutional overreach of the Federal Government.

I urge my colleagues to join me in this legislation. It is late in this Congress, but there is another one looming with reinforcements coming from the people.

I appreciate my colleague allowing me to join him today in this discussion of a doctor's second opinion.

Well, the Senator is absolutely correct. And this coming from the New York Times in particular, this article is an astounding bit of information for the American people, and they need to know about it. I think the American people have the quaint idea that their elected officials, both in the executive branch and in the legislative branch, should be the center of power. I did not come to Washington to be powerful. But at least I have to stand before my constituents every so often and get their approval. What this article says is that the bureaucrats are now at the center of power because of this ObamaCare legislation and the financial services legislation.

We have enacted, over my vote and over the vote of the Senator from Wyoming, a 2,700-page health care overhaul. Yet we are told the main thing it does is empower bureaucrats and make them the decisionmakers. Certainly, if this is the result of this unfortunate piece of legislation, a Governor or a speaker of the house of representatives at the State level ought to be able to quickly and expeditiously go to Federal court and say: Wait a minute, this violates the 10th amendment. All we are saying is that they need a path to go quickly to the Federal courts and challenge this.

I am sure the Senator noticed this--this is just one example. In neighboring Bethesda, MD, this new ObamaCare law has resulted in 200 health regulators rushing to a new facility there and paying twice the fair market value. This is Uncle Sugar coming in. They can pay as much money as they want. So they pay twice the fair market value in rent, and they have taken over three floors of a suburban office building to begin getting started on actually writing the rules that will apply this Federal mandate to the people. It is amazing.

You know, actually, I will say this to my friend: When we talk about defunding the Federal Government, I would like for our Appropriations Committees, our investigative committees, both House and Senate, to look at how they got the right to pay twice the fair market value.

If I might add, this is really a new chapter in the history of the American Federal Government. According to the senior vice president of the American Benefits Council:

There has never been a period like what we are going

through now, in terms of the sheer volume and complexity of

rule-making.

My friend, this is unprecedented in American history. The scope, the cost, the magnitude of this legislation is unprecedented, according to the American Benefits Council. And the point of my bill is that that does violence to the Bill of Rights, it does violence to the intent of the Founding Fathers that the Federal Government be limited in its power and scope and that we leave most of the rights we are endowed with by our creators to the people and to the States themselves. So it is a great privilege to join my colleague today in making this point.

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

Mr. President, in June of this year, I joined my friend and colleague, Senator Ben Cardin, on the Senate floor to discuss an issue of great concern to both of us and to many Americans and to many advocates of freedom and the rule of law internationally. That issue is the ongoing trial in Russia of Mikhail Khodorkovsky and his business partner, Platon Lebedev.

This trial, or what Gary Kasparov writing for the Wall Street Journal called ``the latest judicial travesty,'' came to a close November 2. A decision by the court is expected on December 15.

Khodorkovsky was first arrested in 2003 and convicted in 2005. This trial was unfair and politically motivated according to Western human rights groups, Western media, and many other independent observers. There is broad opinion that this second trial has been staged, has not provided the opportunity to judge facts in a clear, impartial manner, and in general has not honored the rule of law.

I know this is not a jury trial. The finder of fact is a single judge. Many have claimed that this judge has come under both direct and indirect pressure in this case. In addition, the prosecution has used language in closing arguments as if a guilty verdict had already been rendered. Sadly, there seems to be little hope for a just verdict from this second trial, and now Khodorkovsky and Lebedev will face the prospect of many more years in jail. These men have already served 7 years in prison and paid an unjust price for a politically inspired campaign against them. They have sacrificed much of their lives, their freedoms, and their rights. It is time for both men to be set free and for justice to be served in Russia.

This case is broader than Khodorkovsky and Lebedev as individuals. It raises the question about whether there are truly independent functioning institutions in Russia. A guilty verdict would show that when Russian authorities want to, they can act above the law, as they did in the first trial. It would also underscore that property rights in Russia are meaningless, sending a chilling message to investors and businesses alike, both domestically in Russia and internationally. I fear we will see more cases where rights are violated and the legal process undermined.

Thankfully, it is becoming increasingly difficult for Russian authorities to hide the illegitimacy of the charges and the process. Government officials, human rights activists, journalists, and others continue to raise questions about the legitimacy of this trial.

Some might suggest that we in the Congress and we in America should refrain from commenting on cases in a sovereign nation's court system. I disagree. I do not think this is true when a nation's court system is clearly not independent and is being used to undermine the rule of law and fundamental democratic principles.

I have led efforts to support congressional resolutions and hearings to draw attention to specific issues about this case because I believe they are symbolic of broader and disturbing trends in Russia. I and other colleagues in the Senate will continue to do so.

As I said in June of this year:

The United States stands behind those who call for freedom

from tyranny and justice around the world. We must continue

to stand with Mikhail Khodorkovsky and Platon Lebedev.

As a second flawed trial comes to conclusion, this is truer now than ever before. The international community will be closely watching the outcome of this case. I urge my colleagues, President Obama, and the administration to do the same. I hope Russia will choose the right path and somehow that justice will prevail in this infamous case.

I yield the floor.

Mr. President, I rise this evening, as so many colleagues have done, to pay tribute to and remember one of the Senate's most enduring Members, the late Senator Ted Stevens of Alaska, who was buried today. For 40 years, Senator Stevens represented the people of Alaska in this body with zeal, with dignity, with intellect, and with strength.

Ted Stevens came in a small package, but he was indeed a giant--a giant for Alaska and for the Senate. He helped to chart a course for America's 49th State and our entire Nation through his vigorous dedication and passion. As one of the earliest proponents of statehood for Alaska, Ted Stevens' legacy remains intertwined with Alaska's development. His pride in Alaska was unmatched.

Fighting on behalf of Alaska, Senator Stevens was instrumental in developing America's energy policy and highlighting the incredible natural resources available in our own country. He saw the danger posed by a lack of energy security for this country, and drawing on Alaska's vast resources, he tirelessly advocated American energy independence. His work, including the Trans-Alaskan Pipeline Authorization Act of 1973, created good jobs for Alaskans and helped supply the power America desperately requires to fuel our economic growth.

A true American patriot who was concerned about U.S. security, Senator Stevens was determined that we maintain the ability to stand alone, if necessary, against the international forces of evil that plot our destruction. When it came to national defense, Ted Stevens demonstrated his commitment at an early age, long before his days in the Senate. I once heard Ted refer to the men and women of today's Armed Forces as ``the next greatest generation.'' He truly knew whereof he spoke. At 19 years of age, he enlisted in the Army Air Corps, during one of the darkest periods in American history. Having seen combat, Ted Stevens knew what service, valor, and bravery meant, and he saw that in the courageous men and women admirably serving now.

Retired Air Force COL Walter J. Boyne wrote a tribute to Senator Stevens that appeared in the Washington Post on August 11. I will quote excerpts from Colonel Boyne's memorable piece:

At age 20, Lt. Stevens flew twin-engine transports ``over

the Hump,'' carrying vital supplies from bases in India to

the Chinese armies resisting Japan. On these often-

unaccompanied missions, he had crossed the Himalayas; in

Asia, the mountains were higher than in Alaska, the weather

worse, and there was always the threat of a Japanese fighter

plane showing up to dispute the passage.

Boyne continues:

Young Lt. Stevens was probably disappointed to find himself

in the cockpit of a transport plane. He had completed flying

school at Douglas, Ariz., earning his wings by May 1944, and

probably expected to be assigned to Lockheed P-38 fighters.

The urgent requirement for transports dictated otherwise,

however, and he was assigned to the 322nd Troop Carrier

Squadron, part of the 14th Air Force commanded by Gen. Claire

Chennault.

Boyne writes:

While the route over the Himalayas demanded piloting skill

and endurance, Stevens also flew many missions within the

interior of China, some going behind Japanese lines, bringing

supplies in direct support of Chinese troops.

For his service, Stevens received two Distinguished Flying Crosses, which Boyne points out ``can be awarded to any member of the U.S. armed forces who distinguishes him or herself by `heroism or extraordinary achievement while participating in aerial flight.' ''

I ask unanimous consent that the entire article be printed in the Record.

Only 3 years before Senator Stevens earned his wings, Pilot Officer John Gillespie Magee, Jr., of the Royal Canadian Air Force composed a poem after being struck by the sheer wonder of flying a test flight at 30,000 feet. This poem was sent home to John Magee's parents just a few days before his death. It is entitled ``High Flight.''

I will close with those words in remembrance of an American hero, Senator Ted Stevens:

``Oh! I have slipped the surly bonds of earth

``And danced the skies on laughter-silvered wings;

``Sunward I've climbed, and joined the tumbling mirth

``Of sun-split clouds--and done a hundred things

``You have not dreamed of--wheeled and soared and swung

``High in the sunlit silence. Hov'ring there

``I've chased the shouting wind along, and flung

``My eager craft through footless halls of air.

``Up, up the long delirious, burning blue,

``I've topped the windswept heights with easy grace

``Where never lark, or even eagle flew--

``And, while with silent lifting mind I've trod

``The high untresspassed sanctity of space,

``Put out my hand and touched the face of God.''

On August 9, 2010, Ted Stevens slipped the bonds of Earth one final time. He died, literally and figuratively, with his boots on, among friends, enjoying the rugged and dangerous beauty of nature and of the State of loved. We will miss his leadership and his friendship and the Nation will long be indebted to him for his lifetime of service.

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

I suggest the absence of a quorum.

Mr. President, would the Senator yield for a question on that point?

Let me make sure the people within the sound of our voices tonight understand this. For the first time in the history of the modern-day Budget Act, the Congress has not even brought forward a budget plan to be debated, much less amended and voted on by the elected representatives of the people; is that correct?

And this is astonishing in light of what the Senator has pointed out with regard to where we are going on payment of interest on the national debt. Anytime we are paying interest, that is money that can't be used for highways, for infrastructure. If someone wanted to try a stimulus for small businesses by cutting their taxes, that is money that is not available to us for that purpose.

I wonder whether the Senator would like to talk about his particular plan, a bipartisan plan, that at least attacks the exponential growth we have had in discretionary spending. I think the Senator has a plan with the Senator from Missouri that would attack this issue at the discretionary level, virtually freeze domestic discretionary spending, and, at least for that small part of the budget, give us some relief; is that correct?

If the Senator would continue to yield, I would say that I think it would certainly be a start. And I daresay that if Senator Sessions and I were the sole deciders on this issue, we might find a way to cut spending even further. But on a bipartisan basis, we ought to at least be able to say: Mr. President, let's bring to the floor for discussion a proposal that would virtually freeze domestic discretionary spending for 1 year.

I would commend to my colleagues a letter dated July of this year from every Republican on the Senate Appropriations Committee pointing out, No. 1, the enormity of the Federal debt and the problem and direct threat it poses to national security; the need for a long-term plan; the fact that the committee is compelled, outside of a budget because we didn't even get a chance to debate one, to come up with a top-line number; pointing out the Sessions-McCaskill legislation that would essentially freeze nondefense spending, and, importantly, every Republican on the Appropriations Committee said we were committed to that number. I think that as the American people begin to look at us, particularly as we move toward this crucial vote on November 2, it is important for them to understand that Republican appropriators have made that commitment and made it in writing as long ago as July of this year.

If the Senator would yield one more time--I know we are limited on time--some other people are scheduled at the top of the hour, but I think this is very important.

We were spending an enormous sum of money in fiscal year 2008. I do believe that in this crisis we have, we can get back to that level and make do. That is so important in light of what this Congress and this administration have done to the national debt in 3 short fiscal years. Last year, this government added $1.4 trillion to the national debt. That is $1.4 trillion we spent here in Washington that we didn't have. This year, it will be almost that much--$1.34 trillion. And if things don't change, the national deficit, which will add to the debt, the next fiscal year will be $1.42 trillion. It is a crisis. We need to address it, and this legislation is a start.

Was the Senator asking a rhetorical question or would he yield for an answer to that question?

Clearly it was a rhetorical question.

I thank the ranking member for that question. I would answer: Yes, indeed, her record, taken together with her committee testimony, tells us a lot about Ms. Kagan's insight and feelings about the second amendment.

Let me agree with my colleague from Connecticut, however, and say I don't believe it is necessary for someone to have judicial experience to be an effective member of the Supreme Court. Clearly that is not called for in the Constitution. However, in a situation such as this, where the nominee has never written a judicial opinion of her own, where she has hardly any experience at all in the courtroom, I do think it is appropriate--and actually necessary--for us to examine her life experience and see what insights we can gain on her views on the second amendment.

I would also say this: The debate is drawing to a close. The issue is probably not in doubt, but I think we owe it to the Record, we owe it to our constituents, we owe it to the American people to outline our concerns with regard to the second amendment to the Constitution, to the second article in the Bill of Rights. So I ask my colleagues to indulge me by going through some of the life experiences this nominee has.

Ms. Kagan began her law career clerking for a very antigun judge, Abner Mikva, who later brought Ms. Kagan to the White House to serve as his deputy. Judge Mikva once likened the National Rifle Association to ``a street crime lobby.''

Next, Ms. Kagan's own hostility to the second amendment rights became evident during her time as a law clerk for Justice Thurgood Marshall where as a clerk she wrote that she was ``not sympathetic'' to the argument that the DC handgun ban violated an individual's second amendment rights. This is disappointing and troubling. In this memo she didn't cite text, precedent, or analyze the law or look to the Constitution. Ms. Kagan inserted her personal beliefs and said: I am not sympathetic to this individual right argument.

The case that comment involved was Lee Sandidge. A business owner was arrested and convicted in the District of Columbia for possessing ammunition and an unregistered pistol without a license. The law provided up to 10 years in jail for this offense. Mr. Sandidge's second amendment claim--the one that Ms. Kagan was not sympathetic toward-- challenged the very same DC total gun ban that was struck down later by the Supreme Court in the Heller decision. Ms. Kagan's lack of sympathy for Sandidge's claim demonstrates she failed to recognize that we have an individual right as citizens to bear arms. I am very pleased that the Supreme Court has now recognized this on two occasions, in Heller as well as this year, in 2010, in McDonald.

Then Ms. Kagan embarked on what can only be described as a quest against gun ownership and second amendment rights during her years in the Clinton White House. She worked extensively on gun issues during President Clinton's administration which was well known for such gun control efforts. The record leaves no doubt that Ms. Kagan was a key player in shaping Clinton White House restrictive gun policies. During those years, she coauthored policy memos that advocated increased restrictions on lawful gun owners, including legislation requiring background checks for all secondary market gun purchases, a gun tracing initiative, and a call for a new gun design ``that can be shot only by authorized adults.'' According to the records of the Clinton Presidential Library, Ms. Kagan also drafted an Executive Order restricting the importation of certain semiautomatic rifles that were not covered by statute. In other words, she authored an Executive Order that went beyond the statute in her quest against gun ownership.

At the time of the import ban, a senior staffer who worked in the Clinton domestic policy shop that was run by Ms. Kagan, described the administration's plan as follows: ``We are taking the law and bending it as far as it can to capture a whole new class of guns.'' This was the office our nominee ran during that administration.

In addition, Ms. Kagan appears to have been in charge of the Domestic Policy Council's effort to respond to the Supreme Court's 1997 ruling in Printz v. the United States. The Printz case struck down parts of the 1994 Brady handgun law on tenth amendment grounds. According to the Clinton Library, even after the Supreme Court had ruled, the Clinton administration, with Ms. Kagan involved, worked to preserve unconstitutional provisions considered in many legislative and executive branch responses to the Court's decision.

I would reiterate what my friend from Alabama has said. The right of every American--the individual right we have to keep and bear arms under the second amendment to the Constitution--hangs by a single vote, and I am concerned that personal sympathies and a strong record of opposition to the second amendment would influence the way this person would act as a judge.

But there is one other thing, and I wish to ask my friend from Nevada about this. During her testimony before the Judiciary Committee, Ms. Kagan stated she had never had an occasion to look at the history on which Heller is based, and, therefore, she could not say whether she believed there is a preexisting individual, fundamental right to keep and bear arms.

Here is a talented and intelligent and articulate and brilliant law student and law professor and staffer who worked extensively on the issue of second amendment rights for years, and she taught constitutional law at one of the most prestigious institutions in this country, yet she stated in her testimony that she had never had occasion to look at the history on which this was based and, therefore, she could not say whether there was a fundamental right to keep and bear arms. I think her credibility was quite damaged by that statement.

I ask my friend Senator Ensign whether he was surprised when Ms. Kagan made that statement based on her extensive experience and interaction involving this issue?

I simply look to her own testimony. I think it is troubling--particularly for a law professor and somebody who dealt with the issue for decades--when asked at her hearing whether she personally believes there was a right to self-defense that existed before the Constitution, she said she ``didn't have a view of what are natural independent of the Constitution.''

Maybe Solicitor General Kagan was tired by that time. Maybe she had been told by her handlers--the people at the Department of Justice-- that it is best

to simply not answer that. But I say to my colleagues, we are endowed by our Creator with certain inalienable rights. We don't get them from the Constitution. Those rights are there. Certain rights are enumerated, including the second amendment rights, in the Constitution. For a Justice of the Supreme Court not to understand that causes me problems, and it causes me to think that she just doesn't have a very well-founded view of the second amendment.

The Senator is correct. The phrase ``a right of the people'' is used two other times in the Constitution and the Bill of Rights--in the first amendment's assembly and petition clause, the fourth amendment's search and seizure clause, and a very similar phrase is used in the ninth amendment, where the Founders stated that ``the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.''

In all three instances, the Framers were referring to individual rights and not to collective rights. Nowhere in the Constitution does a ``right'' attributed to ``the people'' refer to anything but an individual right. It is the same with the second amendment.

This has been affirmed in the Heller case. Judge Sotomayor, when testifying before us, said she thought that was settled law. The decision this year, in which she dissented, makes me wonder about that, and it gives me grave concern, with a 5-to-4 Court, about what might happen to precedent and what I believe now is settled law.

Let me ask the ranking member, during Ms. Kagan's hearing, she was questioned about her statement that she believes precedent trumps original intent. What does this mean with regard to the second amendment rights, based on the pre-Heller precedent?

Mr. President, we are not in a quorum call at this time. I am told there is a brief pause. I ask unanimous consent that I be allowed to speak as in morning business for 5 minutes.

Mr. President, during this brief pause in the debate on the Supreme Court nominee, I rise to call to the attention of Senate Members my introduction of S. 3672, the Coordination of Wind and Flood Perils Act of 2010.

This month is, of course, the fifth anniversary of Hurricane Katrina. We are still rebuilding on the coast, and we are still rebuilding in many areas of the gulf, in the South, as depicted on this map.

Two weeks ago, I attended the opening of a municipal complex and library in the historic town of Pass Christian. The fact that we are just getting the money and just getting this library and city all rebuilt after 5 years is testimony to the extent of the destruction and the difficulty of funding projects like that. This is true in the public sector, and it is also true in the private sector.

But one of the greatest impediments to rebuilding, and one of the main reasons Katrina is still not over for the people of Mississippi and other areas of the gulf is the lack of affordable insurance. This is true in Mississippi, and it is also true from Texas all the way through the gulf, south, down to the tip of Florida, and on up through the New England coastal States. Anywhere there is coastal exposure there is a problem with affordability and availability of insurance.

I have had quite a number of visits to the coast in recent weeks, particularly in the last 100 days because of the oilspill. The recovery there is going to be a challenge.

There will be speeches later on this month commemorating the anniversary and discussing the heroism and the resilience and the determination of the people of the coast. All of this will be appreciated and necessary, but the truth is one of the best things that could be done for the gulf coast area--not just my State of Mississippi but in the entire area--is to resolve the issue of wind insurance versus flood insurance, and that is what S. 3672 is all about: coordinating the coverage between wind and flood perils coverage.

Of course, for people in this area, for people in my State of Mississippi, you need hazard insurance, you need fire insurance, as does everyone, you need wind insurance, and you need flood insurance. Back in 1968, that was the year of Hurricane Camille. It also was the year it became apparent to this Congress that something needed to be done at the Federal level to cover water damage. Hence, the National Flood Insurance Program was established in 1968. Since that time, Americans have been able to get flood insurance through the NFIP. Actually, in 1973, this Congress in its wisdom made such coverage mandatory for people mortgaging property in flood zones.

Let's fast forward to 2005, the year of Hurricane Katrina. Many victims who needed it didn't have flood insurance. One of the reasons they didn't have flood insurance is that the flood zone maps were wrong. I hope to a large extent this has been corrected. It is supposed to have been corrected now, and people in flood zones who have mortgages are required to have it. Oftentimes they cancel those policies, and that is something we need to attend to also, but that insurance is available.

The problem is wind insurance. The private insurance coverage for wind damage has pretty much left the coastal areas of many of our States in the eastern part of the United States. So we have this situation now where a homeowner needs flood insurance through the National Flood Insurance Program. They need their own hazard insurance that they get through their local broker. Then, they probably have to resort to the State wind pool, a State program, because private wind insurance is not available to them.

Another problem we had in 2005 after Katrina is that many homeowners found themselves caught in the middle between the issue of whether it was water damage in connection with the hurricane that caused their property loss or whether it was flood damage in connection with the hurricane that caused the loss. After hurricanes such as Katrina, if a homeowner has wind and flood insurance, the homeowner often has to prove in court whether it was wind or water that caused the damage. This is unacceptable. Let me emphasize this: Individuals who had all the appropriate insurance--wind and water--were, in many instances, caught in the middle and forced to go to court to watch the insurance carriers fight among themselves. My legislation would remove the burden of determining flood or wind loss allocation from the property owner and put it where it belongs--a decision to be made between the insurers.

If my bill becomes law, insurance companies, including State-run wind pools and the National Flood Insurance Program, would have to pay a claim as soon as possible after the hurricane. If there is a dispute, each would pay 50 percent. The homeowner would be paid for the loss while the parties responsible for paying the claim would work out the details.

My legislation--and again, it is S. 3672, the Coordination of Wind and Flood Perils Act of 2010--would prevent homeowners from having to go to court to determine what portion of the damages were caused by wind and what portion by water. This should not be part of the duties of the homeowner. Under my legislation, if there is a dispute between the parties responsible for paying the claim, the insured would be compensated immediately and the dispute between the insurers would be resolved by arbitration.

This is only a small step. It doesn't answer the whole problem. I still support the concept of putting wind coverage under the National Flood Insurance Program on a voluntary basis, as

my amendment would have done in 2008. It is an amendment that has passed the House of Representatives and it is known as the multi-peril concept. That did not get majority support in the Senate and is, frankly, unlikely to get that support in short order. They are having trouble with that concept in the House of Representatives, but I wish to emphasize that I still support the multi-peril concept. This is a step. It puts us on the right track and it removes the wind and water debate.

I would suggest that my friends in the Senate look at this bill. I invite them to become cosponsors, and I hope we will be able to add this simple amendment to the law in short order.

I thank the Presiding Officer and I yield the floor.

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

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

Mr. President, I rise today to speak briefly on the upcoming hearings the Judiciary Committee will hold on President Obama's nomination of Elena Kagan to be a Justice on the U.S. Supreme Court. I am not a member of the Senate Judiciary Committee, and I do not envy the difficult task before the committee members. However, I would like to highlight a few things I will be watching, as a Member of this body with the constitutional duty to advise and consent, and listening for as Ms. Kagan's nomination hearings begin on Monday.

First and foremost, I will be listening for indications on how closely Ms. Kagan will adhere to the Constitution and the laws of our Nation as written. The judicial oath requires judges to apply the law impartially to the facts before them--without respect to their social, moral, or political views.

Although Ms. Kagan certainly has an impressive resume in academia and as a political adviser in the Clinton and Obama administrations, she lacks key courtroom experience as either a judge or as a private lawyer. Therefore, it is appropriate and vitally important that members of the committee perform their due diligence to question her judicial philosophy.

This is a line of questioning that Ms. Kagan herself has endorsed. In a 1995 University of Chicago Law Review article, she wrote:

The kind of inquiry that would contribute most to

understanding and evaluating a nomination is . . . discussion

first, of the nominee's broad judicial philosophy and second,

of her views on particular constitutional issues. By

``judicial philosophy'' . . . I mean such things as the

judge's understanding of the role of courts in our society,

of the nature and values embodied in our Constitution, and of

the proper tools and techniques of interpretation, both

constitutional and statutory.

I could not agree more with Ms. Kagan. I hope she will live up to her own measuring stick and provide the Senate with the open and constructive answers which she has herself advocated.

In addition to her general judicial philosophy, I hope my colleagues on the Judiciary Committee will question Ms. Kagan on two specific issues important to many Americans and many of my constituents in the State of Mississippi; that is, her views on abortion and the second amendment.

I am concerned that many of the documents from Ms. Kagan's service as a law clerk for the late Justice Marshall and as a political adviser during the Clinton administration reflect a troubling bias.

Two years ago, the Supreme Court ruled, in District of Columbia v. Heller, that the second amendment guarantees an individual's right to keep and bear arms. Ms. Kagan has said publicly that she views Heller as settled precedent of the Court. But as a law clerk for Justice Marshall, Ms. Kagan wrote a strikingly personal memo on gun rights.

The case in question on that earlier occasion challenged the District of Columbia's handgun ban that was markedly similar to the Heller case. In her 1987 memo urging Justice Marshall to vote against hearing the case, Ms. Kagan stated:

[The petitioner's] sole contention is that the District of

Columbia's firearm statutes violate his constitutional right

``to keep and bear arms.'' I'm not sympathetic.

The recommendation itself is troubling, but the personal note she employed is even more disturbing. Rather than pointing to text and precedent, rooting her analysis in law or looking to the Constitution, Ms. Kagan chose the personal pronoun saying: ``I'm not sympathetic.''

This should concern Senators because it seems to indicate a personal aversion to the right to bear arms. I hope members of the committee will question Ms. Kagan on this issue.

Ms. Kagan's work in the Clinton administration raises further questions about her views of the second amendment. According to records at the Clinton Presidential Library in Little Rock, Ms. Kagan was a key adviser to President Clinton on gun control efforts. She drafted an Executive order restricting the importation of certain semiautomatic rifles and was involved in the creation of another order requiring all Federal law enforcement officers to install locks on their weapons.

She advocated various other gun control proposals, including gun tracing initiatives, legislation requiring background checks for all secondary market gun purchases, and efforts to design a gun that would automatically restrict the ability for most adults to use it.

In a May article, the Los Angeles Times put it this way:

As gun rights advocates viewed it, there was one clear

message: The Clinton White House wanted to remove as many

guns from the market as it could.

Records show that Ms. Kagan was a key player in this effort.

I believe the upcoming hearings present an opportunity to hear more about Ms. Kagan's views on the second amendment--a right clearly enumerated in the Bill of Rights--and whether she views it as binding on all levels of government. I am confident I will not be the only one following her answers closely.

With regard to the second issue, with regard to abortion, Ms. Kagan, having neither served as a judge nor spent any significant time in a courtroom, lacks a judicial record to give us insight into her views on abortion. But there are several red flags that show the need for pointed questions from Judiciary Committee members on this issue.

First, Ms. Kagan has extensively criticized the 1991 Supreme Court decision Rust v. Sullivan, where the Court upheld the constitutionality of the Department of Health and Human Services' regulations that prohibit title X family planning funds from being ``used in programs where abortion is a method of family planning.''

The rulings in that case and others like that case are absolutely vital to protecting the unborn. Congress has the constitutional duty to maintain the power of the purse. If, as Ms. Kagan argues, that authority should be limited in the name of free speech, then the American people will lose the ability for their elected Representatives to prohibit abortion funding and provide any balance to the executive branch.

One of the most noteworthy issues on which Ms. Kagan advised President Clinton during her time at the White House was partial-birth abortion--a truly reprehensible procedure. Memos from Ms. Kagan to President Clinton indicate she believed partial-birth abortion is constitutionally protected. I have profound concerns about that point of view and believe this raises serious questions about how she would interpret the Constitution if confirmed to the Supreme Court.

In closing, there is no doubt these are important issues deserving lengthy and deliberate consideration by the Senate Judiciary Committee, particularly for a lifetime position on the highest Court in our Nation.

I hope Ms. Kagan will adhere to her own advice and be open and forthright with the committee as to her judicial philosophy and views on the specific constitutional questions I have mentioned. I look forward to joining many Americans in closely following Ms. Kagan's responses.

I yield the floor.